Luckett v. McDonald's Rests. of Cal.
| Docket Number | B317481 |
| Decision Date | 30 November 2023 |
| Parties | ROOSEVELT LUCKETT, Plaintiff and Appellant, v. MCDONALD'S RESTAURANTS OF CALIFORNIA, INC. et al., Defendants and Respondents |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. 20STCV05066, Lia Martin, Judge.
The deRubertis Law Firm, David M. deRubertis, Joshua M. Webster Lavi &Ebrahimian, Joseph Lavi and Jordan D. Bello for Plaintiff and Appellant.
Gibson, Dunn &Crutcher, Theane D. Evangelis, Bradley J Hamburger, Lauren Blas; Jones Day, Amanda C. Sommerfeld and Amanda W. Molinari for Defendants and Respondents.
REDACTED OPINION FOR PUBLIC VIEW [*]
Plaintiff Roosevelt Luckett sued his former employer, McDonald's Restaurants of California, Inc. (McDonald's or Defendant) under the Private Attorneys General Act of 2004 (PAGA; Lab. Code, § 2698 et seq.). Luckett alleged McDonald's violated Industrial Welfare Commission Wage Order No. 5-2001, section 14(A), which requires employers to provide suitable seats to their employees "when the nature of the work reasonably permits the use of seats," and section 14(B), which requires an employer to provide suitable seats in reasonable proximity of the work area for employees to use during lulls in operation. (Cal. Code Regs., tit. 8, § 11050, subd. 14(A) &(B) [Wage Order No. 52001]; Kilby v. CVS Pharmacy, Inc. (2016) 63 Cal.4th 1, 19 (Kilby).)
McDonald's moved for summary judgment. Its arguments included the following three: First, there was no factual dispute that the nature of the work did not reasonably permit the use of a seat at its drive-thru cash booths. Second, even if the nature of the work did so permit, there was no factual dispute that there was no "suitable" seat for the drive-thru cash booth. Third, Luckett failed to exhaust administrative remedies as required under PAGA with respect to his section 14(B) claim and thus, the claim was time barred. The trial court granted the motion, finding there was no triable issue of fact for these three issues and concluding that the remaining issues were moot.
Luckett argues triable issues of material fact existed as to each of the three matters and the trial court erroneously weighed evidence and adjudicated conflicts in favor of McDonald's. To attempt establishing a triable issue that the nature of drive-thru cash booth work permits seating and that suitable seats exist, Luckett primarily relies on evidence that McDonald's accommodated employees with medical conditions by modifying their drive-thru cash booth job duties and permitting them to sit. But accommodating such disabled and injured employees did not create a factual dispute regarding the more expansive tasks expected of full-time, non-disabled employees that are incompatible with sitting. We conclude Luckett's inapposite evidence did not demonstrate a triable issue, and thus affirm.
Wage Order No. 5-2001 section 14(A) requires that "All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats." Section 14(B) states, "When employees are not engaged in the active duties of their employment and the nature of the work requires standing, an adequate number of suitable seats shall be placed in reasonable proximity to the work area and employees shall be permitted to use such seats when it does not interfere with the performance of their duties." (Wage Order No. 5-2001.)
Luckett worked for a McDonald's restaurant located on Venice Boulevard in Los Angeles, California from February 14, 2018 to February 12, 2019. From time to time, Luckett worked in the drive-thru cash booth. Luckett asked whether he could use a seat in the drive-thru cash booth, and McDonald's denied his request.
On October 24, 2019, Luckett provided notice to the Labor and Workforce Development Agency (LWDA) that McDonald's "failed to comply with the requirements of [s]ection 14(A) of Wage Order [No.] 5[-2001] by failing to provide suitable seating [to] him and other current and former 'aggrieved' hourly paid non-exempt employees in California who worked as cashiers and/or who performed other duties that reasonably permitted the use of seats ...." Luckett also stated that pursuant to Huff v. Securitas Security Services USA, Inc. (2018) 23 Cal.App.5th 745, "[e]mployers are subject to civil penalties under PAGA for any other violation of the California Labor Code" involving their employees.
On February 7, 2020, Luckett filed a complaint for civil penalties under PAGA. Luckett sought to bring the action on behalf of himself and other former or current McDonald's employees who were aggrieved under section 14 by McDonald's failure to provide suitable seating when the nature of the work reasonably permitted the use of seats.
On October 9, 2020, Luckett submitted further notice to the LWDA "to clarify that [his] allegations regarding McDonald's failure to provide suitable seating arise under both [sections] 14(A) and 14(B) of the applicable [w]age [o]rder." The notice stated, "Mr. Luckett further alleges that McDonald's failed to comply with the requirements of [s]ection 14(B) of Wage Order [No.] 5[-2001] when Mr. Luckett and other drive-thru cashiers were not engaged in the active duties of their employment and the nature of the work required standing by failing to place an adequate number of suitable seats in reasonable proximity to the work area and failing to permit employees' use of such seats when it did not interfere with the performance of their duties."
On November 9, 2020, Luckett filed a first amended complaint to include an allegation under section 14(B).
On April 8, 2021, McDonald's filed a motion for summary judgment, or in the alternative, summary adjudication. It made six arguments. First, McDonald's argued there was no factual dispute that the nature of the work did not reasonably permit the use of a seat at its drive-thru cash booths. It argued the booths were a tight workspace, designed for standing, and the fluidity of movement required to service customers (including frequent foot movements, reaching, bending, shifting, and twisting) could not be reasonably performed from a seated position. Additionally, placing a seat in the booth would create a tripping hazard and [Redacted] Placing a seat in the drive-thru cash booth would also require cashiers to transition from sitting to standing, [Redacted].
Second, McDonald's argued that even if the nature of the work did reasonably permit use of a seat, there was no factual dispute that there was no "suitable" seat for the drive-thru cash booth.
Third, McDonald's argued that Luckett failed to exhaust administrative remedies as required under PAGA with respect to his section 14(B) claim and thus, the claim was procedurally barred. Fourth and fifth, even if Luckett's section 14(B) claim was not barred, it failed because it was undisputed that there were no "inactive" periods of work, and even if there were "inactive" periods, it was undisputed that placing a seat in the drive-thru cash booth was a tripping hazard and would interfere with the performance of duties. Sixth, McDonald's argued Luckett lacked standing to pursue the lawsuit because he could not show that he personally experienced a violation of the law.
Defendant's evidentiary submission in support of its motion included among other things the declaration of its operations manager in California since January 2013, Saad Sabbagh,[1] the declaration of McDonald's then-director of customer experience, Michael Cramer, and the report of a retained ergonomics expert, Jeffrey Fernandez, PhD.
It is undisputed that in December 2018, Defendant operated approximately 78 corporate McDonald's restaurants in California with drive-thru cash booths.[2] According to Sabbagh, Defendant staffed each shift at each restaurant with between three and 21 employees. Employees could work at a variety of locations within the restaurant, including the front counter, the grill, the fries station, the drive-thru cash booth, or the presenter booth. The drive-thru cash booth is where drive-thru customers' orders are received and where customers pay for their orders. The presenter's booth is a second window where customers receive their food.
Drive-thru cash booth employees have primary and secondary duties. Their primary duties include taking orders and completing payment transactions for drive-thru customers, and providing "excellent customer service" while doing so. For example, Sabbagh observed, "It is McDonald's expectation that employees in the cash booth reach out to customers who are sitting in their vehicles, rather than make our guests take off their seat belts, stretch, or open their vehicle doors to reach in toward the employee during a payment transaction." (Italics omitted.) Sabbagh also declared that McDonald's places great emphasis on the guest experience and speed of service. Therefore, McDonald's tracks the speed of service for each restaurant and provides training regarding how to diagnose and fix slowdowns.
Sabbagh declared that McDonald's ...
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