Parra v. Bashas', Inc., No. 06-16038.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtHug
Citation536 F.3d 975
PartiesJosé PARRA; Gonzalo Estrada, and Aurelia Martinez, Plaintiffs-Appellants, v. BASHAS', INC., Defendant-Appellee.
Docket NumberNo. 06-16038.
Decision Date29 July 2008
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...

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106 practice notes
  • Steven J. Abraham, & H Ltd. v. WPX Prod. Prods., LLC, No. CIV 12-0917 JB/CG
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • 16 Agosto 2016
    ...F.3d 1350 (11th Cir. 2009); (ii) whether an employer engaged in racial discrimination in the setting of wages, see Parra v. Bashas', Inc., 536 F.3d 975, 980 (9th Cir. 2009); (iii) whether a health-care plan created a backlog of unprocessed claims, see Gunnells v. Healthplan Servs., Inc., 34......
  • Anderson Living Trust v. WPX Energy Prod., LLC, No. CIV 12-0040 JB/LFG
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • 19 Marzo 2015
    ...F.3d 1350 (11th Cir. 2009); (ii) whether an employer engaged in racial discrimination in the setting of wages, see Parra v. Bashas', Inc., 536 F.3d 975, 980 (9th Cir. 2009); (iii) whether a health-care plan created a backlog of unprocessed claims, see Gunnells v. Healthplan Servs., Inc., 34......
  • Espinosa v. Ahearn (In re Hyundai & Kia Fuel Econ. Litig.), No. 15-56014
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 23 Enero 2018
    ...and citation omitted). We review the district court's decision to certify a class for an abuse of discretion. Parra v. Bashas', Inc. , 536 F.3d 975, 977 (9th Cir. 2008). A district court abuses its discretion when it makes an error of law or when its "application of the correct legal s......
  • Hunter v. Ahearn (In re Hyundai and Kia Fuel Economy Litigation), No. 15-56014
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 6 Junio 2019
    ...limiting our review "to whether the district court correctly selected and applied Rule 23 ’s criteria." Parra v. Bashas’, Inc. , 536 F.3d 975, 977 (9th Cir. 2008). Likewise, we review for abuse of discretion the district court’s award of attorney’s fees and costs to class counsel ......
  • Request a trial to view additional results
106 cases
  • Steven J. Abraham, & H Ltd. v. WPX Prod. Prods., LLC, No. CIV 12-0917 JB/CG
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • 16 Agosto 2016
    ...F.3d 1350 (11th Cir. 2009); (ii) whether an employer engaged in racial discrimination in the setting of wages, see Parra v. Bashas', Inc., 536 F.3d 975, 980 (9th Cir. 2009); (iii) whether a health-care plan created a backlog of unprocessed claims, see Gunnells v. Healthplan Servs., Inc., 34......
  • Anderson Living Trust v. WPX Energy Prod., LLC, No. CIV 12-0040 JB/LFG
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • 19 Marzo 2015
    ...F.3d 1350 (11th Cir. 2009); (ii) whether an employer engaged in racial discrimination in the setting of wages, see Parra v. Bashas', Inc., 536 F.3d 975, 980 (9th Cir. 2009); (iii) whether a health-care plan created a backlog of unprocessed claims, see Gunnells v. Healthplan Servs., Inc., 34......
  • Espinosa v. Ahearn (In re Hyundai & Kia Fuel Econ. Litig.), No. 15-56014
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 23 Enero 2018
    ...and citation omitted). We review the district court's decision to certify a class for an abuse of discretion. Parra v. Bashas', Inc. , 536 F.3d 975, 977 (9th Cir. 2008). A district court abuses its discretion when it makes an error of law or when its "application of the correct legal s......
  • Hunter v. Ahearn (In re Hyundai and Kia Fuel Economy Litigation), No. 15-56014
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 6 Junio 2019
    ...limiting our review "to whether the district court correctly selected and applied Rule 23 ’s criteria." Parra v. Bashas’, Inc. , 536 F.3d 975, 977 (9th Cir. 2008). Likewise, we review for abuse of discretion the district court’s award of attorney’s fees and costs to class counsel ......
  • Request a trial to view additional results

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