Petty v. Wal-Mart Stores, Inc.

• Decision Date: 15 March 2002
• Docket Number: No. 19067.,19067.
• Citation: 2002 Ohio 1211,148 Ohio App.3d 348,773 N.E.2d 576
• Parties: PETTY et al., Appellants, v. WAL-MART STORES, INC. et al., Appellees.<SMALL><SUP>*</SUP></SMALL>
• Court: Ohio Court of Appeals

Page 576

773 N.E.2d 576

148 Ohio App.3d 348

2002 Ohio 1211

PETTY et al., Appellants, v. WAL-MART STORES, INC. et al., Appellees.^*

No. 19067.

Court of Appeals of Ohio, Second District, Montgomery County.

Decided March 15, 2002.

John A. Smalley, Ronald J. Maurer, Gerald L. Bader, Jr., and Franklin D. Azar, Dayton, for appellants.

Matthew W. Lampe, Jeffrey S. Sutton, Brian G. Selden and Lori A. Clary, Columbus, for appellees.

FAIN, Judge.

{¶ 1} This is an appeal from a denial of class certification. The suit was brought by plaintiff-appellants Cathy Petty, Lisa Cottongim, Linda Brown, and Arthur Harris on behalf of themselves and other similarly situated individuals against defendant-appellees Wal-Mart Stores, Inc., Wal-Mart Stores East, Inc., Sam's East, Inc., and three store managers (hereinafter collectively referred to as "Wal-Mart"). The plaintiffs contend that the trial court abused its discretion by finding that the class was not identifiable and denying class certification.

{¶ 2} We conclude that the trial court did not abuse its discretion in denying class certification. We find it unnecessary to decide whether we agree with the trial court that the class was not sufficiently identifiable based upon the definitions advanced by the plaintiffs. We conclude that the record demonstrates that the plaintiffs failed to make the showing of predominance and superiority required for class certification. Therefore, we find that the trial court appropriately denied certification, and the order denying class certification is affirmed.

I

{¶ 3} Petty, Cottongim, Brown, and Harris (hereinafter collectively referred to as "Petty") filed this action alleging that Wal-Mart has engaged in wage and hour violations, and seeking compensatory and punitive damages. The gravamen of the action is that long-standing practices and procedures of Wal-Mart forced employees to work "off the clock" and to forgo rest and meal breaks, contrary to written policy and oral agreements.

{¶ 4} Petty filed a motion seeking certification of a class consisting of "all current and former hourly employees of Ohio Wal-Mart stores who have been required and/or permitted to work off the clock without compensation and/or miss their lunch and meal breaks from the period beginning fifteen years prior to the filing of the complaint." Wal-Mart filed a memorandum in opposition to the motion to certify, arguing that Petty had failed to meet the certification requirements of Civ.R. 23. In a reply memorandum, Petty modified and broadened the class sought to certified to include "all past and present Wal-Mart employees."¹

{¶ 5} The record includes the depositions of the four named plaintiffs and numerous affidavits and depositions of other Wal-Mart employees. This evidence indicates that many of the witnesses had experienced the conduct alleged in the complaint and defined in the first class definition. The four named plaintiffs all testified that they had been pressured to work off the clock and had not received all of their rest and meal breaks. However, there was also evidence that some of the employees who missed breaks did so for reasons other than pressure from Wal-Mart. Specifically, there was testimony that some employees missed breaks or meals in order to leave work early; some employees forgot to clock in or out; and some did not clock in or out so that they could take longer breaks.

{¶ 6} The trial court denied the requested certification, finding that the class was not sufficiently identifiable under either definition advanced by the plaintiffs. The trial court also stated that if the first definition advanced by the plaintiffs could be suitably refined, then the class would meet all other certification requirements. Petty appeals from the order denying class certification.

II

{¶ 7} The sole assignment of error advanced by Petty is as follows:

{¶ 8} "The trial court abused its discretion and erred as a matter of law when it denied class certification due to a finding of no identifiable class."

{¶ 9} A trial court enjoys broad discretion in determining class action certification. Baughman v. State Farm Mut. Auto. Ins. Co. (2000), 88 Ohio St.3d 480, 483, 727 N.E.2d 1265. However, the Ohio Supreme Court has established clear standards that must be met before the trial court may certify a class. See Warner v. Waste Mgt., Inc. (1988), 36 Ohio St.3d 91, 521 N.E.2d 1091. Specifically, a trial court must make seven affirmative findings; two of these findings are implicitly required by Civ.R. 23, while the remaining five are explicitly set forth in the rule. Id. at paragraph one of the syllabus. The trial court must find, by a preponderance of the evidence, that all seven requirements have been met in order to grant class certification. Id. at 94, 521 N.E.2d 1091.

{¶ 10} The first implicit prerequisite is the existence of an identifiable and unambiguous class. Id. at 96, 521 N.E.2d 1091. The second implicit prerequisite is that the class representatives must be members of that unambiguous and identifiable class. Id. Four of the explicit prerequisites are set forth in Civ.R. 23(A). A member of a class may sue as a representative party on behalf of all class members only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims of the representative parties are typical of the claims of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. Id. at 97, 521 N.E.2d 1091. These four requirements are often referred to as "numerosity," "commonality," "typicality," and "adequacy of representation," respectively. The final explicit prerequisite is set forth in Civ.R. 23(B). It requires a finding that the proposed action falls within one of its three applicable subsections. In this case, the parties acknowledge that Civ.R. 23(B)(3) is the applicable subsection.

{¶ 11} The trial court denied certification upon the ground that the putative class was not sufficiently identifiable under either definition proposed by Petty.

{¶ 12} "[T]he requirement that there be a class will not be deemed satisfied unless the description of it is sufficiently definite so that it is administratively feasible for the court to determine whether a particular individual is a member." Hamilton v. Ohio Say. Bank (1998), 82 Ohio St.3d 67, 71-72, 694 N.E.2d 442, citing 7A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure (2d Ed.1986) 12-121, Section 1760. "Thus, the class definition must be precise enough `to permit identification with a reasonable effort.'" Id., citation omitted. At the class certification stage, issues going to the merits of the action may not be determined. Ojalvo v. Bd. of Trustees of Ohio State Univ. (1984), 12 Ohio St.3d 230, 233, 12 OBR 313, 466 N.E.2d 875, citation omitted.

{¶ 13} We begin with the definition originally advanced by Petty, which consists of all employees who were required or permitted to work off the clock or miss breaks and meals. In the motion for certification, Petty argued that the trial court could determine the class by relying on Wal-Mart's records. However, the trial court rejected this argument:

{¶ 14} "[P]laintiffs seek to identify the class through Wal-Mart's business records and time clock exceptions. Wal-Mart's time clock records merely show whether an employee took all of his or her breaks and meals, and whether the employee punched in on time. Even if the report shows that an employee missed a break or meal, it does not give the reason for the missed break. An employee may have forgotten to punch out but still took a break, skipped a break to refrain from smoking, or skipped a break to leave work early. These records clearly do not tell the Court whether an employee missed a break because she was required or permitted to by Wal-Mart.

{¶ 15} "In addition, time clock records only show the hours of work for which the employee was `on the clock.' These records will not assist the Court in determining which employees were required or permitted by Wal-Mart to work off the clock. Determining which employees are members of the class will require an inquiry into the facts of each employee's case. Given that there are 174,000 potential plaintiffs in this case, use of Wal-mart's employment records would not permit identification of class members within a reasonable effort. Plaintiffs have specified no other means by which the Court could identify potential class members. This Court is left with the burden of a highly individualized adjudication to determine which of the 174,000 employees qualify as class members. This is not administratively feasible."

{¶ 16} Upon review of the file before us, we agree with the trial court. There is no administratively feasible method for determining the class under the first definition. The trial court would have to make individual inquiries into each putative class member's exposure to the alleged conduct. We agree with the trial court's determination that the class, as defined initially by Petty, is not identifiable.

{¶ 17} Petty later defined the class as including all 174,000 past and present Ohio Wal-Mart employees. Although this definition was not set forth in the complaint or the motion for certification filed by Petty, it was addressed by the trial court, which found that this definition must also fail because it is clear from the evidence that not all the putative class members were required or permitted to work off the clock or miss meal breaks. Petty cites Hamilton, supra, Cope v. Metro. Life Ins. Co. (1998), 82 Ohio St.3d 426, 696 N.E.2d 1001, Baughman, supra, and Warner, supra, in support of her claim that the second definition is sufficient.

{¶ 18} Wal-Mart argues that this description of the class is overly broad in that it encompasses employees of Wal-Mart who were not exposed to the alleged...