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California suitable seating case against Kmart heads for trial; class limited to cashiers at one location

By Lisa Milam-Perez, J.D.

Officiating round two of a dispute over Kmart’s alleged failure to provide “suitable seating” to cashiers in the national retailer’s California stores, a federal judge certified only a narrow class of employees, limited to the store at which the named plaintiff worked, in their suit alleging violations of a state wage order (Delbridge v Kmart Corp, June 11, 2013, Alsup, W). The court once again rejected an attempt to secure statewide certification of the class.

In the first round of litigation, a cashier alleged that Kmart breached California Wage Order 7-2001(14) by not providing seats at the store checkouts. She sought to represent a statewide class of cashiers, but the court approved only a limited class of cashiers in the Tulare, California store where she worked. The class action proceeded to bench trial, and the judge ruled the cashiers failed to prove that the nature of their work reasonably permitted the seating modification urged by class counsel. However, the court allowed other plaintiffs to intervene in the action, including a cashier who had worked in the retailer’s Redlands, California, store. At issue here was her bid for statewide class certification on the same claim for relief. She fared no better.

Previous trial inapplicable. Kmart hoped to hang its hat on the previous ruling in its favor, contending that the findings of facts and conclusions regarding the Tulare store were the law of the case and should be applied wholesale here. However, before the judge issued his ruling in the earlier trial, he asked but Kmart refused to stipulate to treating the Tulare holding as representative for all Kmart stores in the state. Because Kmart had itself limited the scope of that holding, the pending trial would be “a fresh start,” the court said.

Also for this reason, the court rejected Kmart’s summary judgment motion on the ultimate issue of whether it violated the wage order by failing to provide seating to cashiers at the store at issue in round two. The employer contended that the nature of the cashiers’ work required standing and that the checkout stand configurations at the stores did not accommodate seats. Unfortunately, the retailer tried to substantiate these claims almost exclusively on the basis of the trial record as to the Tulare store.

Declarations survive—for now. The court refused to strike more than 400 survey responses from cashiers proffered by Kmart in opposition to class certification. Kmart and its attorneys had distributed surveys asking currently employed cashiers to check boxes and fill in blanks corresponding to rough estimates of the time they spent engaging in such activities as twisting, reaching, and bending while working at the checkout stands.

Kmart also submitted “day in the life” statements from 15 cashiers, in narrative form, purportedly describing their daily work duties. Both the surveys and the “day in the life” statements included disclosure forms stating that they were being collected for use in litigation and that Kmart’s interests were potentially adverse to those of the declarants. However, the plaintiffs asserted that the cashiers who signed “day in the life” declarations did not receive conflict of interest disclosures and that the disclosure form read to the survey respondents was “fundamentally misleading.”

In the court’s view, the disclosure forms were, “at best, a half-hearted attempt to convert legal language into a format comprehensible to a layperson.” Moreover, the surveys were collected at the cashiers’ place of work, not at a neutral environment; thus, while they stated that completing the surveys was voluntary, the context could have encouraged the cashiers “to overstate their zeal for their work.” As such, their accuracy was suspect. The “day in the life” accounts were even more problematic, the court said. They conveyed that the cashiers “work long and hard without ever wishing for a stool.” Yet they were clearly drafted by attorneys, the court concluded. But these flaws went to the weight of the evidence, the court found, and Kmart’s method of gathering and preparing the cashier declarations and survey was not fundamentally coercive or misleading. For now, then, the declarations would not be stricken; the extent to which they will be admissible for trial remained to be seen. In the meantime, however, Kmart was prohibited from engaging in further evidence-gathering activities involving communications with members of the class absent leave of the court.

Statewide class denied. While the cashier declarations were not dispositive as to variations among cashiers’ experiences across store locations, they did weigh against certifying a class of cashiers on a statewide basis. And the plaintiffs failed to produce additional evidence of commonality among cashier experiences across store locations. Therefore, the court once again rejected a statewide class.

The variation among stores in checkout stand configurations created problems of both manageability and of proof. “Developing a factual record sufficient to cover all Kmart store permutations would require a long parade of experts and lay witnesses,” the court observed, and the existing factual record suggested that cashier experiences could vary significantly across stores. As a result, the plaintiffs could not meet their Rule 23 burden of showing commonality and typicality across the retailer’s California stores.

However, the evidence showed sufficient commonality of working conditions among cashiers to certify a class of cashiers working at the Redlands, California store, and Kmart was unable to demonstrate that circumstances specific to this store obviated class treatment. Thus, the court certified a class of cashiers who, like the remaining plaintiff, worked at Kmart’s Redlands location. Such an approach proved itself to be “entirely appropriate” in the previous round. However, the court made clear it would not allow further opportunities to find and add more plaintiffs from other stores in an effort to certify additional classes. “This is the last class that will be certified in this action.”

The case number is C 11-02575 WHA.