Garcia v. ISS Facility Services, Inc.

• Court: District Court, N.D. California
• Decided: September 30, 2024
• Docket: 3:19-cv-07807
• Status: Unknown

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 CLAUDIA GARCIA, 10 Case No. 19-cv-07807-RS Plaintiff, 11 v. ORDER GRANTING IN PART AND 12 DENYING IN PART RENEWED ISS FACILITY SERVICES, INC., et al., MOTION FOR CLASS 13 CERTIFICATION Defendants. 14

15 16 I. INTRODUCTION 17 Plaintiff Claudia Garcia brought this action on behalf of herself and similarly situated 18 employees of defendants ISS Facility Services, Inc. and ISS Facility Services California, Inc. 19 alleging various violations of wage and hours laws. Garcia’s prior motion for class certification 20 was denied for several reasons. She now renews her motion, contending her current showing is 21 adequate to support certification of a class that includes all ISS employees throughout California. 22 Garcia, however, has failed to establish that conditions at all the locations where ISS employees 23 work are sufficiently similar to support class treatment of the claims she advances. Garcia has, 24 however, made an adequate showing to support class certification as to the employees at the 25 particular worksite where she was employed, although a potentially fatal numerosity issue will 26 remain. The motion will be granted in part, and denied in part. 27 1 II. BACKGROUND 2 Defendant ISS Facility Services, Inc. is a “leading international facilities maintenance and 3 staffing company” with nearly 400,000 employees worldwide. Defendant ISS Facility Services 4 California, Inc. appears to be the California subsidiary through which it acts in this state—Garcia 5 refers to the entities collectively as “ISS.” Garcia was employed by ISS as a “janitor and custodial 6 detailer” from approximately May of 2018 to August of 2019. 7 Garcia was assigned to work at a facility in El Dorado Hills owned and operated by 8 Broadridge Financial Solutions, Inc., which is also named as a defendant herein. Broadridge was a 9 client of ISS, who contracted with it to provide janitorial services. Garcia alleges ISS and 10 Broadridge were her “joint employers.” While the complaint alleges its claims for relief against 11 both ISS and Broadridge, and the initial motion for class certification appeared to be directed at 12 both, Garcia has clarified that the present motion does not seek certification of any claims against 13 Broadridge. 14 Although Garcia did not amend her complaint following the prior order denying class 15 certification, her renewed motion for class certification focuses on somewhat different clams than 16 did the prior motion, and appears to abandon some entirely.1 Garcia’s present claims fall into four 17 main categories: 18 1) Garcia alleges she and other employees were not consistently allowed to take their full 19 meal breaks, or meal breaks at all, and that they did not receive the requisite additional 20 compensation when that occurred. 21 2) Garcia contends she and other employees were not provided their required rest breaks, 22 particularly because they were not permitted to leave the premises during those breaks, and 23 therefore remained “under the control” of the employer. 24

25 1 ISS does not argue that any of the claims advanced in the current motion are outside the scope of 26 the complaint. Nor does ISS take issue with the wording of any of Garcia’s proposed class definitions. This certification order is without prejudice to any subsequent reconsideration of the 27 language of the class definitions, particularly if the matter ultimately is to be presented to a jury. 1 3) Garcia states she and other employees were not compensated for time spent before their 2 shifts clearing security and walking to their work area. 3 4) Garcia asserts she and other employees were not appropriately reimbursed for use of 4 their privately owned cell phones, which she contends were necessary given the job conditions. 5 Based on those underlying claims, Garcia also advances what she calls “derivative claims” 6 for failure to pay final wages, failure to furnish accurate itemized wage statements, and unfair and 7 unlawful business practices. 8 9 III. LEGAL STANDARD 10 Class actions are governed by Rule 23 of the Federal Rules of Civil Procedure, which 11 represents more than a mere pleading standard. To obtain class certification, plaintiffs bear the 12 burden of showing they have met each of the four requirements of Rule 23(a) and at least one 13 subsection of Rule 23(b). Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1186, amended by 14 273 F.3d 1266 (9th Cir. 2001). “A party seeking class certification must affirmatively demonstrate 15 . . . compliance with the Rule.” Wal–Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011). 16 Rule 23(a) provides that a court may certify a class only if: “(1) the class is so numerous 17 that joinder of all members is impracticable; (2) there are questions of law or fact common to the 18 class; (3) the claims or defenses of the representative parties are typical of the claims or defenses 19 of the class; and (4) the representative parties will fairly and adequately protect the interests of the 20 class.” These requirements are commonly referred to as numerosity, commonality, typicality, and 21 adequacy. Mazza v. Am. Honda Motor Co., Inc., 666 F.3d 581, 588 (9th Cir. 2012). 22 If all four Rule 23(a) prerequisites are satisfied, a court must also find that plaintiffs 23 “satisfy through evidentiary proof” at least one of the three subsections of Rule 23(b). Comcast 24 Corp. v. Behrend, 133 S. Ct. 1426 (2013). Relevant here is Rule 23(b)(3), which permits 25 certification if a court finds that “questions of law or fact common to class members predominate 26 over any questions affecting only individual members, and that a class action is superior to other 27 available methods for fairly and efficiently adjudicating the controversy.” These requirements are 1 often referred to as predominance and superiority. The class certification analysis may “entail 2 some overlap with the merits of the plaintiff’s underlying claim.’” Amgen Inc. v. Conn. Ret. Plans 3 and Trust Funds, 133 S. Ct. 1184, 1194 (2013) (quoting Dukes, 131 S. Ct. at 2551). 4 Nevertheless, “Rule 23 grants courts no license to engage in free-ranging merits inquiries 5 at the certification stage.” Amgen, 133 S. Ct. at 1194–95. “Merits questions may be considered to 6 the extent—but only to the extent—that they are relevant to determining whether the Rule 23 7 prerequisites for class certification are satisfied.” Id. at 1195. 8 9 IV. DISCUSSION 10 A. Numerosity 11 The order denying the prior motion for class certification noted ISS’s contention that 12 virtually all of its employees executed written agreements to address any employment disputes 13 with ISS through binding arbitration. As the parties are aware, Garcia herself executed such an 14 agreement, but through earlier motion practice it has been determined that she may proceed with 15 this case because she and ISS subsequently executed an agreement to mediate disputes, which 16 superseded the agreement to arbitrate and which does not preclude this litigation. 17 The prior order denying certification noted that because Garcia has the burden of 18 establishing numerosity, she would be expected to make an affirmative showing as to the number 19 of potential class members who are not subject to binding arbitration provisions in any renewed 20 certification motion. Garcia’s renewed motion argued that in discovery ISS produced only four 21 signed arbitration agreements from among over 2100 members of the putative class, statewide. 22 Garcia faulted ISS for alleged discovery intransigence to explain why she did not have a clearer 23 picture as to how many potential class members were subject to arbitration agreements. ISS, in 24 turn, claimed Garcia had failed to pursue the case with reasonable diligence following denial of 25 the first certification motion. 26 Pointing out that the existence of arbitration agreements is an affirmative defense as to 27 which ISS bears the burden, Garcia contended she had satisfied her obligation to establish 1 numerosity. Although ISS does bear the burden to establish the defense, it appeared judicial 2 efficiency would be better served to resolve this threshold question before reaching other 3 questions of certification. Accordingly, ISS was ordered to submit declarations sufficient to 4 establish (1) the total number of its employees at the potentially relevant jobsites in the putative 5 class period, and (2) the number of those employees that ISS contends signed binding arbitration 6 agreements, and who did not subsequently sign mediation agreements like that signed by Garcia. 7 Dkt. No. 123. 8 After seeking an extension of time to respond, ISS submitted a declaration that failed to 9 comply with the order and omitted the most critical information. ISS provided the number of 10 employees in the places identified by the order, as well as the number who were party to 11 arbitration agreements.2 ISS, however, provided no information as to how many of its employees, 12 like Garcia, may have executed mediation agreements that supplanted prior arbitration 13 agreements.3 At this juncture, therefore, Garcia has met her burden to establish numerosity, and 14 ISS has failed to show its affirmative defense will apply to enough ISS employees to defeat 15 numerosity.4 16 2 For the first time, ISS raises a contention that some of its employees are subject to an arbitration 17 requirement under the terms of applicable collective bargaining agreements. ISS has not provided 18 sufficient evidence to evaluate whether any such collective bargaining agreements preclude employees from participating in a class action such as this. Because ISS does not contend a 19 collective bargaining agreement applied to the El Dorado Hills site, and that is the only site as to which certification is being granted, it is not necessary to reach that issue. 20 3 Why ISS chose to omit this information is unclear. Paragraph 9 of the declaration ISS submitted 21 expressly states the number “of those employees that ISS contends signed binding arbitration agreements, and who did not subsequently sign mediation agreements like that signed by Garcia,” 22 had been ascertained and would be provided. The remainder of the declaration, however, fails to 23 include that promised data. Dkt. No. 126. 24 4 That said, while Garcia has won the battle on this point, she may still lose the war. Because the class is being limited to the El Dorado Hills site, the class size is just barely over the minimum 25 necessary to warrant class treatment, even assuming virtually all class members are not bound by the arbitration agreements most of them signed. Should ISS seek to decertify the class for 26 insufficient numerosity, it will have the burden finally to put to rest the question of how many 27 superseding mediation agreements were executed. 1 B. Geographic scope 2 The order denying Garcia’s first motion for class certification observed that she had not 3 made a sufficient showing that conditions were sufficiently similar across the various worksites 4 where ISS provides contracted janitorial services to warrant certification of a state-wide class. 5 Garcia’s renewed motion makes no more robust a showing, relying on the same conclusory and 6 vague declarations previously found to be inadequate. Garcia complains that ISS resisted 7 discovery, but it was incumbent on her to pursue the information she would need to establish 8 predominance and commonality across all sites where she sought certification. 9 With her response to ISS’s identification of the number of employees who signed 10 arbitration agreements, Garcia filed a handful of additional declarations from ISS employees at 11 other sites. Those declarations, submitted without seeking leave, are similarly too general and 12 conclusory to support certification of a state-wide class. Cf. ABM Indus. Overtime Cases, 19 Cal. 13 App. 5th 277, 284, 308-309 (2017) (certification across all of a janitorial staffing service’s client 14 sites proper where the plaintiff presented a plethora of evidence from hundreds of employees at 15 the various locations.)5 16 17 C. El Dorado Hills 18 As the order on the prior motion for class certification observed, the number of employees 19 at the El Dorado Hills site, just under 40, is sufficient to qualify for class treatment assuming 20 relatively few of them are subject to arbitration agreements. ISS has now shown that up to 27 of 21 them may have executed arbitration agreements. If few of those executed superseding mediation 22 agreements, the class size may drop below the minimum necessary to maintain this litigation as a 23

24 5 ISS objects that the additional declarations all come from employees who signed arbitration agreements, and it seeks leave to file a “sur-reply” to establish that fact. Because the question still 25 is not merely whether an employee signed an arbitration agreement, but whether he or she also signed a superseding mediation agreement, the motion for leave to file a sur-reply is denied. 26 Additionally, even assuming the declarants could not participate in the class, that would not necessarily render their testimony regarding jobsite conditions irrelevant or otherwise 27 inadmissible. Nevertheless, the declarations are insufficient. 1 class action. At this point, however, numerosity is satisfied. 2 The denial of the prior certification motion was based on Garcia’s failure to establish 3 commonality and predominance, including specifically by showing how any common questions 4 could be resolved on a class-wide basis through common proof. Largely by changing the focus of 5 her claims, Garcia has now adequately addressed that shortcoming. 6 7 1. Meal breaks 8 The claims upon which Garcia seeks certification allege violations of California Labor 9 Code §§ 226.7 and 512. California Labor Code § 512(a) requires employers to provide employees 10 with one 30-minute meal period, to begin no later than the end of the fifth hour of work, and 11 another 30-minute meal period to begin no later than the tenth hour of work, for shifts of that 12 length or longer. If the employer does not provide a compliant meal period, the employer must pay 13 an additional hour of compensation at the regular rate of compensation. Cal. Lab. Code § 226.7(c). 14 “An employer is liable only if it does not provide an employee with the opportunity to take a 15 compliant meal period. The employer is not liable if the employee chooses to take a short or 16 delayed meal period or no meal period at all.” Donohue v. AMN Servs., LLC, 11 Cal. 5th 58, 78 17 (2021) (citing Brinker Rest. Corp. v. Superior Court, 53 Cal. 4th 1004, 1040-41 (2012)). 18 In Donohue, the California Supreme Court explained that “an employer’s assertion that an 19 employee waived a meal period ‘is not an element that a plaintiff must disprove as part of the 20 plaintiff’s case-in-chief.’” 11 Cal. 5th at 75 (quoting Brinker, 53 Cal. 4th at 1053 (Werdegar, J., 21 concurring)). “Instead, the assertion is an affirmative defense, and the burden is on the employer, 22 as the party asserting waiver, to plead and prove it.” Id. at 75-76 (internal quotation marks 23 omitted). The California Supreme Court explained that its choice to create a presumption was a 24 practical one “deriv[ed] from an employer’s duty to maintain accurate records of meal periods.” 25 Id. at 76. The court wished to prevent employers from receiving a “potential windfall from the 26 failure to record meal periods.” Id. at 75. As the presumption is a rebuttable one, a defendant may 27 contest it by “presenting evidence that employees were compensated for noncompliant meal 1 periods or that they had in fact been provided compliant meal periods during which they chose to 2 work” via “[r]epresentative testimony, surveys, [] statistical analysis, [and] other types of 3 evidence[.]” Id. at 77 (internal quotation marks and citation omitted). 4 ISS’s challenge to certification regarding missed, or shortened meal breaks fails given the 5 Donahue presumption. Garcia has shown that meal breaks frequently were not accurately recorded 6 in ISS records, and that ISS instead applied an “auto-deduct” policy, charging employees with a 7 thirty-minute meal break when none had been recorded. That shifts the burden to ISS to prove 8 employees were in fact provided compliant meal breaks, or compensated appropriately if they 9 were not. While ISS insist it has “ample evidence showing employees were provided the 10 opportunity and were expected to take compliant meal periods,” it has not presented any of the 11 “representative testimony surveys, statistical analysis” or other similar evidence necessary to rebut 12 the Donahue presumption. 13 14 2. Rest breaks 15 Garcia contends ISS employees at the El Dorado Hills site were not provided legally 16 compliant rest periods because they were not allowed to leave the premises, which she argues is 17 inconsistent with the rule that “during rest periods employers must relieve employees of all duties 18 and relinquish control over how employees spend their time.” Augustus v. ABM Sec. Servs., Inc., 2 19 Cal. 5th 257, 269 (2017). The legality of ISS’s policy of requiring employees to remain on site 20 during their rest breaks is plainly a question that can be answered on a class-wide basis. 21 22 3. Security checks 23 Garcia contends employees were wrongfully denied compensation for the time they 24 necessarily expended clearing security checks upon arrival for work. Again, the legality of that 25 policy can be addressed on a class-wide basis, even if damages vary or are minimal.

26 27 1 4. Cell phone expenses 2 Garcia has presented little evidence that ISS employees at the El Dorado Hills site were 3 required to use their personal cell phones in the performance of their job duties. Whether they in 4 fact were required to do so, however, and whether that gives rise to a right for reimbursement of 5 incurred expenses, are questions that can be resolved, one way or the other, on a class-wide basis. 6 7 V. CONCLUSION 8 Garcia has made an adequate showing that class certification is warranted for the classes 9 she proposes, limited to ISS employees at the El Dorado Hills facility operated by Broadridge. 10 || While her diligence in pursuing discovery raises some concerns, she has also shown that she and 11 her counsel will adequately represent the class. 12 In the event ISS intends to seek decertification on grounds of inadequate numerosity, it 13 || must demonstrate that the arbitration agreements on which it relies were not superseded by 14 || mediation agreements. Any such decertification motion should be brought within the next 60 days. 3 15 A further case management conference will be held on January 9, 2025, with a joint case 16 || management conference due one week in advance.

|| rr1sso ORDERED. 19 20 Dated: September 30, 2024 21 RICHARD SEEBORG 22 Chief United States District Judge 23 24 25 26 27 CASE No. 19-cv-07807-RS