Parra v. Bashas', Inc.

• Decision Date: 29 July 2008
• Docket Number: No. 06-16038.,06-16038.
• Citation: 536 F.3d 975
• Parties: José PARRA; Gonzalo Estrada, and Aurelia Martinez, Plaintiffs-Appellants, v. BASHAS', INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

536 F.3d 975 José PARRA; Gonzalo Estrada, and Aurelia Martinez, Plaintiffs-Appellants,
v.
BASHAS', INC., Defendant-Appellee. No. 06-16038. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 17, 2008. Filed July 29, 2008.

[536 F.3d 976]

Jocelyn D. Larkin, The Impact Fund, Berkeley, CA, and Elizabeth A. Lawrence, Davis, Cowell & Bowe, LLP, San Francisco, CA, for the appellants.

Stephanie J. Quincy, Sherman & Howard L.L.C., Phoenix, AZ, for the appellee.

Appeal from the United States District Court for the District of Arizona; Robert C. Broomfield, District Judge, Presiding. D.C. No. CV-02-00591-RCB.

Before: PROCTER HUG, JR., MARY M. SCHROEDER, and CONSUELO M. CALLAHAN, Circuit Judges.

HUG, Circuit Judge:

Plaintiffs, current and former Hispanic employees of Bashas', Inc., filed this class action alleging that they had been discriminated against based upon their national origin in violation of Title VII of the 1964 Civil Rights Act as amended ("Title VII"), 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981. Plaintiffs allege that defendant discriminated against them in pay and working conditions based on their national origin. The district court certified the proposed class as to the working conditions claim, but denied certification of the proposed class regarding the pay discrimination claim based upon a finding of lack of commonality within the class. Plaintiffs filed a motion for the district court to reconsider its motion and, in the alternative, they offered to redefine the pay discrimination class. Those motions were denied. The Plaintiffs appeal the court's decision to deny certification of the class alleging pay discrimination. We have jurisdiction over this appeal under 28 U.S.C. § 1292 because we granted Plaintiffs' request to file this appeal pursuant to Fed.R.Civ.P. 23(f). We reverse the district court concluding that it abused its discretion in failing to find commonality in the Plaintiffs' original class definition for the discriminatory pay claim.

I.

Bashas', Inc. owns and operates 150 grocery stores under three trade names: Bashas', A.J.'s Fine Foods ("A.J.'s") and Food City. Bashas', Inc. acquired A.J.'s and Food City stores through a series of acquisitions and brought them under the umbrella of Bashas', Inc. while retaining the three trade names. Although Bashas',

536 F.3d 977

Inc. owns all of these stores, the demographics of the patrons and employees at the three trade name stores vary significantly. In particular, the employees of the 58 Food City stores are predominantly Hispanic, while Bashas' and A.J.'s have a much smaller number of Hispanic employees. During the time period relevant to this appeal, Hispanic workers at Bashas' and A.J.'s comprised around 15% of the workforce. At Food City, however, Hispanic employees routinely constituted approximately 75% of the workforce.

Although the stores operate under different trade names and serve different clientele, the job requirements for the employees at the stores are practically indistinguishable. Regardless of these similarities, the wages for similar jobs at the three brand named stores differed until around 2003 when the pay scales were equalized through a phased pay-merger program. The plaintiffs produced evidence that according to these pay scales, the hourly pay disparities for comparable jobs at the three brand named stores ranged from $0.15 per hour to $2.94 per hour. These hourly disparities translate to annual salary differences of around $300 per year to almost $6,000 per year. These pay disparities resulted in the predominantly Hispanic Food City employees receiving less pay than their counterparts in the Bashas' or A.J.'s stores.

Plaintiffs brought this case to address their concerns about the disparate pay and working conditions among the three brand named stores. After initially filing the complaint, the Plaintiffs sought to certify a class of employees consisting of:

All Hispanic workers employed by defendant in an hourly position at any Food City retail store since April 4, 1998, who have been or may be subject to the challenged pay policies and practices and disparate working conditions.

In its initial class certification order, the district court certified the class as to the disparate working conditions claim. However, the district court found that the Plaintiffs could not establish the commonality requirement for the disparate pay claim and denied their request for class certification of this claim.

The Plaintiffs then filed a motion asking for reconsideration and, alternatively, to redefine the class. However, the district court denied both the motion for reconsideration and the motion to redefine the class because the court saw "no real difference" between the newly proposed class and the original class. The proposed newly defined class was:

All Hispanic workers employed by defendant in an hourly position at any Food City retail store since April 4, 1998, who were subject to defendant's policy of using lower pay schedules for Food City workers than for workers in comparable...