Parra v. Bashas', Inc.
| Decision Date | 31 May 2013 |
| Docket Number | No. CIV-02-0591-PHX-RCB,CIV-02-0591-PHX-RCB |
| Court | U.S. District Court — District of Arizona |
| Parties | José Parra, Gonzalo Estrada, and Aurelia Martinez, Plaintiffs, v. Bashas', Inc. Defendant. |
More than a decade ago, current and former Hispanic1 employees of defendant Bashas', Inc. filed this action alleging race and national origin discrimination in violation of Title VII of the 1964 Civil Rights Act as amended ("Title VII"), 42 U.S.C. § 2000e, et seq., for both disparate impact and disparate treatment, and intentional race discrimination in violation of 42 U.S.C. § 1981. Plaintiffs allege thatBashas' has discriminated against them with respect to pay and working conditions. In 2005, this court denied certification of a pay class, but granted certification as to the working conditions claim. Parra v. Bashas', Inc., 2005 WL 6182338 (D. Ariz. 2005) ("Parra I"). In the ensuing years, for a host of reasons recounted below, this action has not moved beyond the class certification stage. Pending before the court is the most recent permutation of the class certification issue.
Bashas' Inc. operates three grocery store chains with three different formats and monikers: A.J.'s Fine Foods ("A.J.'s"); (2) Bashas'; and (3) Food City. In this putative class action, named plaintiffs Gonzalo Estrada,2 a Hispanic former Food City hourly employee, and Aurelia Martinez, a Hispanic current Food City hourly employee,3 allege that Bashas' pays its "predominantly" Hispanic Food City employees, less than it pays "the Caucasian employees at A.J.'s Fine Foods and Bashas' for performing the same work." First Amended Complaint ("FAC") (Doc. 116) at 1:26-2:2, ¶ 1 ("the pay claim"). Plaintiffs further allege that the Food City Hispanic employees "are required to work underconditions that are typically less safe and less hygienic than the conditions found at A.J.'s . . . and Bashas'." Id. at 2:2-4, ¶ 1 ().
In Parra I, this court granted plaintiffs' motion for class certification pursuant to Fed.R.Civ.P. 23(b)(2) as to the working conditions claim, but denied certification of the pay claim, because there was not "sufficient commonality among the class members" as to the latter claim. Parra I, 2005 WL 6182338, at *16. Commonality, as Rule 23(a)(2) requires for all class actions, was lacking because, as the parties conceded, "the contested pay scales ha[d] merged and, for the most part, are now identical." Id. at *15 (citations omitted).
On appeal, the Ninth Circuit faulted this court for "only look[ing] at the current pay scales." Parra v. Bashas', Inc., 536 F.3d 975, 979 (9th Cir. 2008) ("Parra II"), cert. denied, Bashas', Inc. v. Parra, 555 U.S. 1154, 129 S.Ct. 1050, 173 L.Ed.2d 470 (2009). This court also should have "consider[ed] the evidence of past pay disparities and discrimination common to the Hispanic workers at Food City." Id. Taking that evidence into account, the Court found that the "pay scales were common for all Bashas', Inc. employees and provided for different pay for similar jobs based only on where the employee worked." Id. Additionally, the Ninth Circuit pointed out that "[t]he class definition seeks to reach those Hispanic employees who suffered past discrimination under th[o]se pay scales." Id. (emphasis added). Given plaintiffs' "extensive evidence showingBashas', Inc.'s discriminatory pay practices commonly affected all members of the proposed class[,]" the Ninth Circuit reversed this court's commonality finding and remanded, instructing it to "consider[] . . . the remaining class certification factors[.]" Id. at 979-980.
Thereafter, the issue of class certification as to the pay claim was in a state of legal limbo for quite a while. Bashas' filing of a voluntary Chapter 11 bankruptcy petition resulting in an automatic statutory stay, heavily contributed to that state, as did this court's decision to "defer resolution of the class certification issue pending a decision" in Wal-Mart Stores, Inc. v. Dukes, 603 F.3d 571 (9th Cir. 2010) ("Dukes II") (en banc), cert. granted, --- U.S. ---, 131 S.Ct. 795, 178 L.Ed.2d 530 (2010). Ord. (Doc. 295) at 2:14-15 (citation omitted). This court opted for deferral "rather than deciding the case in haste without the benefit of the Supreme Court's decision in Dukes[.]" Id. at 2:13-14.
Nearly three years after Parra II, the Supreme Court rendered its decision in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. __, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011) ("Dukes"). Vacating certification of a class estimated to include 1.5 million female current or former Wal-Mart employees, the Supreme Court held, inter alia, that plaintiffs did "not establish[] the existence of any common question[,]" as Rule 23(a)(2) requires. Id. at 2557 (footnote omitted). In accordance with this court's order, the parties then simultaneously filed supplemental briefs and replies withrespect to the potential impact of Dukes upon the present case. After considering all of the submissions filed with respect to plaintiffs' 2004 motion for class certification,4 their positions during oral argument thereon, and the parties' supplemental Dukes briefs, replies and other filings, the court finds as follows.
Originally, plaintiffs sought class certification pursuant to Fed.R.Civ.P. 23(b)(2) as to both the pay and the working conditions claims; and in Parra I, this court confined its analysis accordingly. Now, however, in light of Dukes, the plaintiffs are seeking certification of the pay claim pursuant to Fed.R.Civ.P. 23(b)(3). Furthermore, also in light of Dukes, Bashas' is requesting that this court reconsider its decision certifying the working conditions claim, and decertify that claim. The court will address the myriad of issues surrounding class certification as to each of these two claims separately, beginning with the pay claim. But first, the court will outline the legal framework for its analysis.
Rule 23 "give[s] the district court broad discretion over certification of class actions[.]" Stearns v. Ticketmaster Corp., 655 F.3d 1013, 1019 (9th Cir. 2011).However, class certification remains "'an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.'" Comcast Corp. v. Behrend, --- U.S. ----, 133 S.Ct. 1426, 1432, 185 L.Ed.2d 515 (2013) (quoting Califano v. Yamasaki, 442 U.S. 682, 700-701, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979)). "[T]o justify a departure from that rule, a class representative must be part of the class and possess the same interest and suffer the same injury as the class members." Dukes, 131 S.Ct. at 2550 (internal quotation marks and citations omitted).
The Dukes Court made clear that "Rule 23 does not set forth a mere pleading standard." Dukes, 131 S.Ct. at 2551. Therefore, "a party seeking to maintain a class action 'must affirmatively demonstrate . . . compliance' with Rule 23." Comcast, 133 S.Ct. at 1432 (quoting Dukes, 131 S.Ct. at 2551-2552). That means, "a party must . . . 'be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact,' typicality of claims or defenses, and adequacy of representation, as required by Rule 23(a)."5 Id. (quoting Dukes, 131 S.Ct. at 2551) (emphasis in original). Satisfying those prerequisites, "effectively limit[s] . . . class claims to those fairly encompassed by the named plaintiff's claims." Dukes, 131 S.Ct. at 2550 (internal quotation marks and citations omitted).
When analyzing the propriety of class certification, the Supreme Court has "[r]epeatedly . . . emphasized that it ''may be necessary for the court to probe behind the pleadings before coming to rest on the certification question,' and certification is proper only if 'the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.''" Comcast, 133 S.Ct. at 1432 (quoting Dukes, 131 S.Ct. at 2551) (quoting in turn General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 160-161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982)). The exact contours of a "rigorous analysis," as well as the extent to which courts may "probe behind the pleadings[,]" is still evolving. What is certain though is that a rigorous analysis "will frequently entail 'overlap with the merits of the plaintiff's underlying claim.'" Id. (quoting Dukes, 564U.S. at ----, 133 S.Ct. at 2551). "That is so because the 'class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff's cause of action.'" Id. (quoting Dukes, 564 U.S., at ----, 131 S.Ct. at 2551) (other quotation marks and citation omitted).
Post-Dukes, the Ninth Circuit has stressed that "a district court must consider the merits if they overlap with the Rule 23(a) requirements.") Ellis v. Costco Wholesale Corp., 657 F.3d 970, 981 (9th Cir. 2011) ("Ellis I") (emphasis in original) (citations omitted). Indeed, the Supreme Court has recently cautioned that Amgen, 133 S.Ct. at 1194-95; see also Comcast, 133 S.Ct. 1426. "To hold otherwise would turn class certification into a mini-trial." Ellis I, 657 F.3d at 983 n. 8. This court thus will "not turn the[s]e class certification proceedings into a dress rehearsal for the trial on the merits." See Messner v. Northshore University HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012) (citations omitted).
That said, neither "the possibility that a plaintiff will be unable to prove his allegations, nor the possibility that the later course of the suit might unforeseeably prove the original decision to certify the class wrong, is a basisfor declining to certify a...
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