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O'Hearn v. Les Schwab Warehouse Center, Inc.

United States District Court, W.D. Washington, Seattle

November 24, 2014

RICHARD O'HEARN, individually and on behalf of all others similarly situated, Plaintiff,
v.
LES SCHWAB WAREHOUSE CENTER, INC. and LES SCHWAB TIRE CENTERS OF WASHINGTON, INC., Defendants.

ORDER

THOMAS S. ZILLY, District Judge.

THIS MATTER comes before the Court on plaintiff's motion for class certification, docket no. 20. Having reviewed all papers filed in support of, and in opposition to, plaintiff's motion, the Court enters the following order.

Background

Defendant Les Schwab Tire Centers of Washington, Inc. ("Les Schwab") operates 114 stores in Washington. Hueske Decl. at ¶¶ 2 & 4 (docket no. 25). Les Schwab is affiliated with defendant Les Schwab Warehouse Center, Inc. ("LSWCI"), but neither defendant is the parent or subsidiary of the other. See id. at ¶ 2; Corporate Disclosure Statement (docket no. 8). Les Schwab stores provide a limited range of parts and services for motor vehicles, including replacement wheels and tires, as well as brake, battery, and alignment services. Hueske Decl. at ¶ 5. Some Les Schwab stores focus exclusively on passenger vehicles or "retail" customers, while others have a mix of business, including maintenance of fleets, construction or logging equipment, commercial trucks, and/or farm or ranch equipment, depending on location. Id. Les Schwab has a decentralized structure in which each store operates like an independent business, with a store's management having almost complete control over how its own store is run. Id. at ¶ 12.

Les Schwab stores generally open at 8:00 a.m. six days a week, and close at 6:00 p.m. on weekdays and 5:00 p.m. on Saturdays. Id. at ¶ 6. The hours may vary by store and as a result of weather or business conditions. Id. Prior to January 1, 2013, Les Schwab stores generally had a Store Manager, one or more Assistant Managers, and hourly positions in three departments, namely Sales & Service, Brake & Alignment, and Sales & Administrative. See id. at ¶ 8; O'Hearn Decl. at ¶ 8 (docket no. 22-19). Store Managers are entitled to four weeks of vacation per year, generally do not work every other Saturday, and might be away from their stores for meetings, training, or other business reasons; when the Store Manager is absent, an Assistant Manager supervises the store. See Hueske Decl. at ¶ 19.

Until January 1, 2013, Assistant Managers were compensated on a salary and profit-sharing basis, and were not paid for overtime. Id. at ¶¶ 13, 32-33 (indicating that, between November 2010 and December 2012, Store Managers and Assistant Managers shared roughly 30-40% of the net profits of their respective stores); see also Ex. Z to Breckenridge Decl. (docket no. 21-32) (indicating that, on average, Assistant Managers earned in excess of $80, 000 per year). Effective January 1, 2013, Assistant Managers became hourly employees, and the second and third Assistant Manager positions were eliminated. Hueske Decl. at ¶¶ 32-34; see Bodin Decl. at ¶¶ 4-5 (docket no. 22-3).

Les Schwab had been in the process of phasing-out the second and third Assistant Manager positions since 2008. Hueske Decl. at ¶ 34. In 2008, Les Schwab established a training program via which hourly employees could get promoted to Assistant Manager. Id. at ¶ 21. Under this program, a trainee would hold the newly created, hourly position of Sales & Service Professional for approximately two years, and then be eligible for promotion. Id. at ¶¶ 21-22. Thirty-six of the 114 stores in Washington now have a Sales & Service Professional. Id. at ¶ 21. When the remaining second and third Assistant Manager positions were eliminated in 2013, the individuals holding those jobs were allowed to work for one year as a Sales & Service Professional. Id. at ¶ 34. If, at the end of the transition year, they did not secure an Assistant Manager position, they could opt to work in the Sales & Service department. Id. Many of them, including plaintiff Richard O'Hearn, elected instead to quit. Id.; O'Hearn Decl. at ¶ 5.

Plaintiff was a second Assistant Manager at Store No. 304, located in Bothell, Washington, from February 2005 until December 2012, and a Sales & Service Professional at the same store from January 2013 until July 2013, when he resigned. O'Hearn Decl. at ¶¶ 3, 5, 8. In this litigation, he makes three claims under three different Washington statutes, namely RCW 49.46.130, RCW 49.48.010, and RCW 49.52.050. Complaint at ¶¶ 53-70 (docket no. 1). The crux of his claims is that Les Schwab's Assistant Managers are not exempt from Washington's requirement that employees be compensated at 1½ times their regular rate for work in excess of forty hours per week. See RCW 49.46.130(1); see also RCW 49.46.010(3). In this motion, plaintiff asks the Court to certify a class of all Assistant Managers employed by Les Schwab stores in Washington during the three-year limitations period and until December 31, 2012, [1] who were classified as "exempt" from Washington's overtime pay regulations.[2] See Motion at 14 (docket no. 20 at 21).

Plaintiff suggests "[t]his has been done before." Id. at 1 (docket no. 20 at 8). He points to cases in Oregon and California in which a similar class was certified, and indicates that "it's Washington's turn." Id. In support of his certification request, plaintiff contends that the Oregon and California cases are analogous to this one, and that Les Schwab and LSWCI collectively control "all aspects" of store operations through detailed policies, manuals, and job descriptions, as well as training programs. His basic premise is that Les Schwab and LSWCI together ensured uniformity among all Assistant Managers in Washington with respect to their daily activities, which did not qualify them as "exempt" from overtime compensation. Plaintiff argues that any variation in the responsibilities of Assistant Managers from store to store did not alter the nature of their "primary duty, " which did not distinguish them from non-exempt, hourly employees.

Contrary to plaintiff's assertion, however, the order certifying an "overtime subclass" in the Oregon case, Ellis v. Les Schwab Tire Ctrs. of Portland, Inc., Ex. H to Hollingsworth Decl. (docket no. 24-1 at 185-203), which did not apply the standards for class certification that govern in federal court, and which predated the United States Supreme Court's decision in Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011), is of no persuasive value. Indeed, in the Oregon case, unlike in this case, the five defendants (only one of which, namely LSWCI, is also sued in this case) did not even dispute that the commonality requirement for class certification had been met. Order at 9 (docket no. 24-1 at 193). In addition, the two California cases on which plaintiff relies involved classes certified solely for settlement purposes, see Hueske Decl. at ¶¶ 27-29; see also Stipulation at ¶ 2.7, Rogers v. Les Schwab Tire Ctrs. of Cal., Inc., Ex. E to Breckenridge Decl. (docket no. 21-5 at 13) ("Defendant... denies that, for purposes other than the settling of this Action, any part of this Action is appropriate for class treatment."), and a third case from California, which was before the same judge as one of the two cases cited by plaintiff, Hueske Decl. at ¶ 27, contradicts plaintiff's representation that certification of the proposed class "has been done before, " see Gerard v. Les Schwab Tire Ctrs. of Cal., Inc., Ex. G to Hollingsworth Decl. (docket no. 24-1 at 176-183).[3]

As a result, the Court now begins its analysis with the proverbial clean slate. Having thoroughly reviewed the materials submitted by the parties, the Court concludes that the record does not reveal the type of homogeneity among Assistant Managers concerning their duties or the manner in which their duties were performed that would justify certifying a class.

Discussion

A. Standard for Class Certification

Rule 23 operates as "an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only." Comcast Corp. v. Behrend, 133 S.Ct. 1426, 1432 (2013) (quoting Califano v. Yamasaki, 442 U.S. 682, 700-01 (1979)). To maintain a class action, plaintiff must "affirmatively demonstrate" compliance with Rule 23. Id. (citing Wal-Mart, 131 S.Ct. at 2551). The prerequisites of Rule 23 are not mere pleading standards, but rather are evidentiary thresholds. Id. Thus, plaintiff bears the burden of proving, not just simply alleging, that all four requirements of Rule 23(a) are satisfied, and that the proposed class qualifies under at least one of the three provisions of Rule 23(b). Id. Plaintiff in this case pursues certification solely under Rule 23(b)(3).

Rule 23(a) mandates that plaintiff prove (1) the class is so numerous that joinder of all members is impracticable; (2) questions of law or fact common to the class exist; (3) the representative's claims are typical of the claims of the class; and (4) the representative will "fairly and adequately" protect the interests of the class. Fed.R.Civ.P. 23(a). In opposing plaintiff's motion, defendants focus on the second prong of the Rule 23(a) analysis, arguing that plaintiff cannot establish the requisite commonality. Defendants also challenge plaintiff's ability to meet the criteria of Rule 23(b)(3), under which plaintiff must show the case involves "questions of law or fact common to class members" that "predominate over any questions affecting only individual members" and as to which "a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Fed.R.Civ.P. 23(b)(3).

B. Lack of Commonality

Commonality, within the meaning of Rule 23, requires plaintiff to demonstrate that the claims of all class members depend on "a common contention" of such nature as "is capable of classwide resolution." Wal-Mart, 131 S.Ct. at 2551. The test is whether the determination of the truth or falsity of such common contention "will resolve an issue that is central to the validity of each one of the claims in one stroke." Id. "What matters... is not the raising of common questions' - even in droves - but, rather the capacity of a class-wide proceeding to generate common answers apt to drive the resolution of the litigation." Id. (emphasis in original, quoting Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. REV. 97, 132 (2009)). The Court must "probe behind the pleadings" and engage in a "rigorous analysis" as to whether the prerequisites for a class action have been satisfied. Behrend, 133 S.Ct. at 1432. The Court's inquiry will necessarily "entail some overlap with the merits" of the underlying claims because class certification considerations are generally "enmeshed" in the factual and legal issues associated with the causes of action being pursued. Walmart, 131 S.Ct. at 2551-52; see also Behrend, 133 S.Ct. at 1432; Ellis v. Costco Wholesale Corp., 657 F.3d 970, 981 (9th Cir. 2011) ("[I]t is not correct to say a district court may consider the merits to the extent that they overlay with class certification issues; rather, a district court must consider the merits if they overlap with the Rule 23(a) requirements." (emphasis in original)).

In this case, although plaintiff frames a common question, namely whether Les Schwab should have paid Assistant Managers for overtime prior to January 1, 2013, that question cannot be answered on a class-wide basis. See Ellis, 657 F.3d at 981 ("[I]t is insufficient to merely allege any common question.... Instead, [a plaintiff] must pose a question that will produce a common answer....'" (citations omitted)). Although plaintiff's claims involve statutes and regulations that apply to all Assistant Managers, the question of whether Assistant Managers must receive compensation for overtime under those laws has no common answer because the duties of Assistant Managers vary from store to store, depending in large part on their respective Store Managers.

1. Executive and Administrative Exemptions

Under Washington law, "employees" must receive compensation at 1½ times their regular rate for work in excess of 40 hours per week, unless a statutory exclusion applies. See RCW 49.46.130(1)&(2). For purposes of the overtime law, the term "employee" is defined to "exempt" a variety of individuals, including those "employed in a bona fide executive [or] administrative... capacity." RCW 49.46.010(3)(c). Thus, if an Assistant Manager qualified, during the proposed class period, under either the "executive" or "administrative" exemption, then Les Schwab would not have been required to pay him or her overtime, and all three of plaintiff's claims would lack merit as to that individual.

The Washington Department of Labor and Industries ("L&I") has defined an "individual employed in a bona fide executive capacity" to mean a person "who is compensated on a salary rate of not less [than] $250 per week... and whose primary duty consists of the management of the enterprise in which he [or she] is employed... and includes the customary and regular direction of the work of two or more other employees." WAC 296-128-510(6). Plaintiff does not dispute that, during the proposed class period, he and other Assistant Managers received salaries exceeding $250 per week, or that he and other potential class members customarily and regularly directed the work of two or more other employees. Rather, with respect to the "executive" exemption, plaintiff contends that "management of the enterprise" was not his or other Assistant Managers' primary duty.

L&I has defined an "individual employed in a bona fide administrative capacity" to mean a person "who is compensated on a salary or fee basis at a rate of not less than $250 per week... and whose primary duty consists of the performance of office or nonmanual work directly related to management policies or general business operations of his [or her] employer... which includes work requiring the exercise of discretion and independent judgment." WAC 296-128-520(4)(b). Again, plaintiff does not disagree that he made the requisite threshold salary. Instead, with respect to the "administrative" exemption, plaintiff asserts that the performance of office or non-manual work "directly related to management policies or general business operations" and requiring "the exercise of discretion and independent judgment" was not his or other Assistant Managers' primary duty.

The job description for Assistant Manager, however, contradicts plaintiff's views concerning his and other Assistant Managers' "primary duty." The job description indicates that the Assistant Manager supports the Store Manager (also known as the Tire Center Manager) in "all aspects of store management and operations." Ex. U to Breckenridge Decl. (docket no. 21-27). The Assistant Manager is "responsible for meeting sales, marketing, and financial performance goals; operating in compliance with Company standards, policies, procedures, and federal, state, and local laws; supervising all Tire Center employees; monitoring activities in the service bays; taking action to prevent and resolve safety issues as necessary; and performing technical duties (for example, tire/wheel repair and installation) as needed to train employees, demonstrate the use of tools/equipment, intervene and correct unsafe work procedures, and provide assistance in the service bays." Id.

2. Declarations Submitted by Plaintiff

Although the job description for Assistant Manager reflects a role that satisfies the requirements of both the "executive" and "administrative" exemption, plaintiff argues that, in practice, Assistant Managers spend the bulk of their time performing the same work as hourly employees. Plaintiff offers, in addition to his own declaration, evidence from 23 other former Assistant Managers and two current Assistant Managers. See Exs. 1-26 to Berman Decl. (docket no. 22).[4] One of the two current Assistant Managers states that he does "very little in terms of managerial tasks" and spends his "entire day" doing the same job as an hourly employee. Medcalf Decl. at ¶¶ 14, 15, & 18 (docket no. 22-18). The other current Assistant Manager indicates that, in addition to performing many of the same tasks as hourly employees, he creates a daily budget, removes and then returns the till to the safe each day, deals with the cash on hand, submits daily reports to Les Schwab headquarters, assigns employees to specific vehicles needing service and to other duties, runs credit reports, and handles customer complaints. Harper Decl. at ¶¶ 8, 12, 13, 14(b), & 15 (docket no. 22-10). He is also involved in the hiring process, but has not participated in firing any employees over the past three years or in any performance reviews for the past year and a half. Id. at ¶ 14. In contrast to Medcalf's testimony that he has virtually no managerial responsibilities, Harper estimates that he spends between 30 and 40 percent of his day on managerial activities. See id. at ¶ 16.

Like Harper, and unlike Medcalf, the various former Assistant Managers whose declarations have been offered by plaintiff describe duties that were entrusted to them and not to hourly employees. With one exception, each of the former Assistant Managers provides an estimate concerning the amount of time devoted to purely managerial tasks, ranging in value from 5 to 30 percent of the day. See Exs. 1-9, 11-17, 19-26 to Berman Decl. (docket no. 22). Some of these former Assistant Managers[5] represent that they were not involved in the hiring, firing, or performance review process; however, most of them, including plaintiff, [6] report playing a role in acquiring new employees, training and supervising hourly workers, and/or discharging individuals when necessary for financial or other reasons. Similar to Harper and many of the former Assistant Managers, plaintiff indicates in his declaration that he also engaged in the following managerial activities: preparing daily reports, opening the till in the morning and storing it in the safe each night, preparing the daily deposit, running credit reports, and approving or denying credit applications. O'Hearn Decl. at ¶¶ 10, 15, & 16 (docket no. 22-19). In addition, plaintiff states that he did manual labor to prepare the store for opening, including readying the equipment, opening the service bays, and making coffee and popcorn, as well as to close the store for the evening, including shutting down the equipment, putting away tools, closing the doors, and performing janitorial tasks such as cleaning toilets, wiping counters, and mopping or sweeping floors.[7] Id. at ¶¶ 11 & 16. According to plaintiff, during the generally 12-hour workday, all but two hours of his time was spent "in the bays or at the service counter performing the same tasks as the hourly employees." Id. at ¶¶ 10, 16, & 17.

Defendants suggest that plaintiff's declaration is "entirely at odds" with his deposition testimony, as well as with statements he made when applying for his current job. See Response at 16 (docket no. 23 at 18). In his deposition, plaintiff acknowledged that he had managerial duties beyond those mentioned in his declaration.[8] Moreover, in seeking employment with Edward Jones as a financial advisor, plaintiff touted his management experience with Les Schwab, indicating that he was responsible for "meeting sales, marketing, and financial goals, " supervising employees, developing selling strategies and new customer accounts, managing customer credit accounts, preparing and monitoring budgets, and resolving customer complaints. Ex. E to Hollingsworth Decl. (docket no. 24-1 at 157). The Court draws no conclusion concerning whether plaintiff's declaration is inconsistent with his deposition testimony and/or prior statements, but observes that the questions raised concerning plaintiff's credibility demonstrate the difficulty, in this particular case, of assessing the "exempt" or "non-exempt" status of just one individual, let alone an entire class.

3. Declarations Submitted by Les Schwab

In opposing plaintiff's motion for class certification, Les Schwab has submitted declarations from 26 individuals currently employed as Assistant Manager, Area Store Assistant Manager, or Store Manager. See Exs. 1-26 to Stafford Decl. (docket no. 27). Each of the Store Managers was previously an Assistant Manager at a different store.[9] Together, these declarations paint a vastly different picture than those provided by plaintiff. Rather than attempting to segregate managerial from non-managerial duties, these declarants talk of "juggl[ing] a lot of balls and deal[ing] with everything all at once" while an Assistant Manager. Paxton Decl. at ¶ 12, Ex. 19 to Stafford Decl.; see also id. at ¶ 21 ("As an Assistant Manager, I could not focus on just one thing at a time because whatever I was not paying attention to tended to catch on fire.'"). As one current Store Manager explains, when he was an Assistant Manager, he "could not just put [his] head down and work with blinders' on." Ferrell Decl. at ¶ 20, Ex. 5 to Stafford Decl.[10] Rather, he had to "monitor everything that was happening in the bays" and make sure that employees stayed on task and were effectively communicating, while also "watching customers' body language to see if they appear[ed] unhappy about something" and then working to resolve any issues. Id. Similarly, a current Assistant Manager indicates that, even when he is working on changing a vehicle's tires, he is still training - he is simultaneously making sure that crew members are following procedures and asking them questions to test their knowledge. See Allcock Decl. at ¶ 15, Ex. 1 to Stafford Decl.[11]

The declarations submitted by Les Schwab reflect that the role of an Assistant Manager varies depending on the particular Store Manager. For example, the Assistant Manager at Store No. 330 in Cheney, Washington, has worked with two different Store Managers. Thueson Decl. at ¶¶ 2 & 5, Ex. 23 to Stafford Decl. Thueson describes working with the first Store Manager, Rich Reiman, as "trial by fire" because Reiman simply said to him, "Here is your key. This is your store. You run it." Id. at ¶ 17. Reiman retired in 2011, and the new Store Manager, Brad Horst, has taken a more interactive approach. See id. at ¶¶ 5, 12-22, & 30. Horst and Thueson now meet two or three Fridays a month for breakfast and discuss strategies for more effectively running the store. Id. at ¶ 13. They work together on the hiring and performance review process, on managing net profits on a daily basis, and on implementing crew training programs and conducting store-wide meetings. Id. at ¶¶ 13, 17-18, 26-30. In contrast, when Reiman was the Store Manager, Thueson had made all hiring decisions on his own, and the store's profit had been managed on an annual basis, with less successful results. Id. at ¶¶ 18 & 19. Other declarations offered by Les Schwab contain similar observations about a change in supervision. See Ruetsch Decl. at ¶¶ 6-8, Ex. 21 to Stafford Decl. (indicating that the previous Store Manager had been "hands off" and that, because Ruetsch had been used to running things on his own, he "initially butted heads" with the replacement Store Manager, but in the end, he and the new Store Manager were able to work well together, opting for a month-at-a-time approach to managing the store); see also Ferrell Decl. at ¶¶ 7-10 & 19, Ex. 5 to Stafford Decl. (explaining that the prior Store Manager had "established ways of doing things, " but the new Store Manager was "laid back and not as set in his ways, " meaning that Ferrell "had a fresh start" and "took on more responsibility for managing all areas of the store").

The declarations provided by Les Schwab also illustrate how the role of Assistant Manager is different from store to store as a result of size, location, and mix of business. See Maynard Decl. at ¶¶ 2 & 7-9, Ex. 16 to Stafford Decl. (describing his transfer from a large store in Smokey Point with a thriving commercial business, where Maynard operated with substantial autonomy, hiring employees and conducting performance reviews on his own, to a much smaller retail store in Bellingham, where he works with a more hands-on Store Manager); see also Bender Decl. at ¶¶ 3-11, Ex. 3 to Stafford Decl. (comparing the small retail store in Kent, where he was able to micromanage and "have a hand in everything, " with the full-service store in Quincy, [12] which has a large volume of commercial sales, where he is required to delegate); Hesner Decl. at ¶¶ 4, 8, & 14, Ex. 11 to Stafford Decl. (discussing the change in duties upon moving from a small retail store in Tacoma to an Area Store in Vancouver, with four times as many employees). The disparity between stores is further demonstrated in the declarations submitted by plaintiff, [13] which vary from no managerial involvement by the current Assistant Manager at Store No. 417 in Bellingham, a commercial store requiring the Assistant Manager to spend substantial time on the road performing service calls, Medcalf Decl. at ¶¶ 3-4, 11, 14, & 18 (docket no. 22-18), to significant participation by the former Assistant Managers at Store Nos. 363 and 318 in North Bend and Battleground, respectively, in the hiring, firing, and performance review processes, Bawdon Decl. at ¶ 13 (docket no. 22-1); Blair Decl. at ¶ 18 (docket no. 22-2), to the current Assistant Manager at Store No. 378 in Federal Way, a store with a mix of retail and commercial business, spending as much as 40% of the work day on solely managerial functions, Harper Decl. at ¶¶ 6 & 16 (docket no. 22-10).

4. Applicable Standard: "Relative Importance" of Managerial Duties to Employer's Functioning

Plaintiff criticizes Les Schwab for failing to offer estimates concerning the portion of each day Assistant Managers devote to managerial activities. The Court is not persuaded that a strict apportionment of time constitutes an appropriate method for analyzing the type of supervisory role at issue in this case. See Donovan v. Burger King Corp., 672 F.2d 221, 226 (1st Cir. 1982). As observed by the First Circuit in Donovan, "one can still be managing' if one is in charge, even while physically doing something else." Id. The facts of Donovan are similar to those at issue in this case. As explained in Donovan, Burger King restaurants are staffed with a salaried manager, two salaried assistant managers, and a crew of hourly employees. Id. at 223. The manager usually works during the day, and the assistant managers normally work either the swing or night shift. Id. While on duty, an assistant manager is responsible for scheduling and training employees, assigning work, recordkeeping and cash reconciliation, and overseeing product quality and inventory; however, assistant managers also spend time performing many of the same tasks as hourly employees, including taking orders, preparing food, and distributing purchases to customers. Id.

The Donovan decision concerns Burger King's appeal from the trial judge's conclusion that, under the Fair Labor Standards Act ("FLSA"), overtime compensation was owed to the assistant managers in the company-owned restaurants in Massachusetts and Connecticut. Id. With respect to assistant managers earning at least $250 per week to whom the FLSA's "short test" applied, meaning that they would be "exempt" from overtime requirements if inter alia their "primary duty" was management, see 29 C.F.R. § 541.100(a) (the salary threshold is now $455 per week), the First Circuit rejected the notion that "managing" must occupy over 50% of the work day to qualify as the "primary duty." Id. at 226. The First Circuit reasoned that, in the context at issue, "a strict time division" is "misleading." Id. An individual "can manage while performing other work, " and "this other work does not negate the conclusion that his primary duty is management." Id. The Court agrees with the First Circuit that apportionment should be reserved for "situations where the employee's management and non-management functions are more clearly severable." Id.

Moreover, under L&I's regulations, the precise amount of time spent performing managerial work is not even a factor when the salary rate exceeds $250 per week, see WAC 296-128-510(5)&(6); WAC 296-128-520(4), [14] and to the extent it is relevant, it is not dispositive, see Reed v. City of Asotin, 917 F.Supp.2d 1156, 1162 (E.D. Wash. 2013).[15] Rather, the key consideration in assessing whether an individual is exempt from Washington's overtime requirement is the "relative importance" of the individual's managerial responsibilities to "the functioning of the employer as a whole." Id. For example, in Reed, in which a former police chief sought overtime compensation, the court concluded that the plaintiff's managerial duties, which occupied only 40% of his time, but which included developing policies for the police department, assigning tasks to subordinates, evaluating officer performance and making recommendations to the mayor concerning promotion and discipline, participating in the budgeting process, and meeting with city council members, various officials, and the public, were "clearly central" or "crucial" to "the successful management and operation" of the police department. Id. at 1162, 1164.

5. Individual Issues Predominate

In this case, to assess whether plaintiff can establish on a class-wide basis that Assistant Managers play no significant managerial role, the Court must consider two situations, one in which the Store Manager is absent and the other in which the Store Manager is present at the store. In numerical terms, Store Managers might be absent as little as 10% of the year, considering authorized vacations and a day off in every 12 days of operation, and they can be gone up to 40% or 50% of the time, see Gamble Decl. at ¶ 13, Ex. 8 to Stafford Decl.; Gonzalez Decl. at ¶ 10, Ex. 9 to Stafford Decl. (Area Store); Willingham Decl. at ¶ 21, Ex. 25 to Stafford Decl. (Area Store); see also Flinner Decl. at ¶ 14, Ex. 6 to Stafford Decl. (Store Manager attended week-long annual meetings, quarterly area meetings, and monthly advertising meetings involving other nearby stores). In addition, the Store Manager position might be vacant for some period following a promotion, transfer, retirement, or discharge.[16] When no Store Manager is present, the Assistant Manager's supervisory role is vital to the continued operation of the business. See Donovan, 672 F.2d at 227 ("the person in charge' of a store has management as his primary duty, even though he spends the majority of his time on non-exempt work and makes few significant decisions"). Because, however, the extent to which Store Managers are absent varies by individual, store, and vacancy status, the Court cannot assess on a class-wide basis the "relative importance" of an Assistant Manager's temporary command of the store to "the functioning of the employer as a whole."

The same is true with regard to the periods during which Store Managers are present at their stores. The record before the Court reflects that the amount of discretion given to Assistant Managers and the scope of their involvement in managerial decisions fluctuate depending on the size, type, and location of the store, the supervisory style and career phase of the Store Manager, and perhaps the capabilities and ambitions of the individual Assistant Manager. In support of his argument that the overtime exemption analysis can be performed on a class-wide basis, plaintiff has cited no case in which the level of variation demonstrated here gave rise to an order certifying a class. For the most part, the authorities cited by plaintiff concerning wage claims are distinguishable because they involve non-exempt employees challenging the manner in which their earnings were calculated or their hours were recorded.[17] Plaintiff relies on only four cases involving an alleged misclassification of class members for purposes of overtime compensation. See Troy v. Kehe Food Distribs., Inc., 276 F.R.D. 642 (W.D. Wash. 2011); Whiteway v. FedEx Kinko's Office & Print Servs., Inc., 2006 WL 2642528 (N.D. Cal. Sep. 14, 2006); Tierno v. Rite Aid Corp., 2006 WL 2535056 (N.D. Cal. Aug. 31, 2006); Sav-On Drug Stores, Inc. v. Superior Court, 96 P.3d 194 (Cal. 2004). These decisions, however, do not support certification of a class in this case.

In Troy, unlike in this case, the discretion of individual supervisors was not at issue, and "no employee-by-employee analysis" was necessary to resolve the question of whether the defendant properly classified merchandisers and sales representatives as exempt from federal and state overtime requirements. 276 F.R.D. at 651, 654. Similarly, in both Whiteway and Tierno, the differences in job duties and responsibilities among the putative class members were minimal and did not defeat commonality. Whiteway, 2006 WL 2642528 at *6; Tierno, 2006 WL 2535056 at *5-*7 (indicating that the defendant exercised "a great deal of centralized control, " that the store managers at issue "perform essentially the same tasks at each store, " and that the defendant "fosters homogeneity" in "job duties, and the manner in which they are performed, by utilizing a system of close supervision"). Finally, in Sav-On, the parties did not disagree about the "reasonably definite and finite list" of tasks performed by the various operating managers and assistant managers at issue, they simply disputed whether those tasks were properly classified as "managerial" or "non-managerial." 96 P.3d at 202. In contrast, in the present case, the parties do not differ regarding which activities are managerial in nature; rather, they offer divergent accounts of the duties delegated to or shared by Assistant Managers and the extent to which those duties occupied the potential class members' work day.

Moreover, the fact that Les Schwab previously classified all Assistant Managers as exempt and recently reclassified them as non-exempt "does nothing to facilitate common proof on the otherwise individualized issues." See In re Wells Fargo Home Mortg. Overtime Pay Litig., 571 F.3d 953, 959 (9th Cir. 2009); see also Wang v. Chinese Daily News, Inc., 737 F.3d 538, 545-46 (9th Cir. 2013) (vacating class certification and remanding for reconsideration in light of Wal-Mart, reiterating that an employer's uniform application of an overtime exemption policy does not give rise to a presumption in favor of class treatment because such presumption "disregards the existence of other potential individual issues that may make class treatment difficult if not impossible" (quoting In re Wells Fargo, 571 F.3d at 958)).

Plaintiff's supplemental citation to Jimenez v. Allstate Ins. Co., 765 F.3d 1161 (9th Cir. 2014), also misses the mark. In Jimenez, the key common question susceptible of class-wide determination was whether class members, who were compensated on an hourly basis, worked uncompensated overtime as a result of the defendant's "unofficial policy of discouraging reporting of such overtime." Id. at 1163-64. The Ninth Circuit observed that proving the existence of such informal or unofficial policy at trial would "drive the resolution" of the class claim under the applicable three-prong test, which requires inter alia that the defendant "knew or should have known" the class members performed uncompensated work but "stood idly by." Id. at 1165-66 (citing Adoma v. Univ. of Phoenix, Inc., 270 F.R.D. 543, 548 (E.D. Cal. 2010)). In this case, no suggestion is made that Les Schwab paid Assistant Managers on an hourly basis during the proposed class period or that, after converting Assistant Managers into non-exempt employees, Les Schwab pressured them into foregoing overtime compensation.

C. Rule 23(b)(3) Class Inappropriate

The Court concludes that plaintiff has not made the requisite showing of commonality to warrant certification of a class under Rule 23(b)(3).[18] Plaintiff's underlying premise, namely that, despite the job description for Assistant Manager, which would itself support the conclusion that Assistant Managers are exempt from overtime requirements, he and all other Assistant Managers engaged primarily in manual labor and other non-exempt tasks, is disputed by several of his former peers. Plaintiff has therefore failed to demonstrate any common factual or legal question that predominates over individual issues. See Weston v. Emerald City Pizza LLC, 137 Wn.App. 164, 151 P.3d 1090 (2007) (reversing an order certifying a class, observing that the job description for the position at issue did not require the non-managerial work that formed the basis of the plaintiff's claims and that the plaintiff's allegations did not establish the defendant "engaged in a common course of conduct in relation to all potential class members"). The Court is satisfied that, in this matter, a class action would not be "superior to other available methods for fairly and efficiently adjudicating the controversy, " Fed.R.Civ.P. 23(b)(3), and declines to certify the proposed class. Cf. Stubbs v. McDonald's Corp., 227 F.R.D. 661 (D. Kan. 2004) (concluding, with respect to a proposed class of first and second assistant managers of McDonald's restaurants in Kansas, that the plaintiff failed to satisfy the more lenient standard for conditional class certification under the FLSA, which requires a showing of "nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan").

Conclusion

For the foregoing reasons, plaintiff's motion for class certification, docket no. 20, is DENIED. The parties' stipulated motion, docket no. 35, to strike the trial date and all related deadlines is DENIED. The Court sua sponte EXTENDS the expert disclosure deadline from November 5, 2014, to December 22, 2014, and the discovery completion deadline from January 5, 2015, to January 30, 2015.

IT IS SO ORDERED.


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