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Michael Marlo, An Individual v. United Parcel Service

April 28, 2011

MICHAEL MARLO, AN INDIVIDUAL, PLAINTIFF-APPELLEE,
v.
UNITED PARCEL SERVICE, INC., A DDP-RZ CORPORATION, DEFENDANT-APPELLANT.
MICHAEL MARLO, AN INDIVIDUAL, PLAINTIFF-APPELLANT,
v.
UNITED PARCEL SERVICE, INC., A DDP-RZ CORPORATION, DEFENDANT-APPELLEE.
MICHAEL MARLO, AN INDIVIDUAL, PLAINTIFF-APPELLEE,
v.
UNITED PARCEL SERVICE, INC., A DDP-RZ CORPORATION, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Central District of California Dean D. Pregerson, District Judge, Presiding D.C. No.2:03-cv-04336

The opinion of the court was delivered by: M. Smith, Circuit Judge

FOR PUBLICATION

OPINION

Argued and Submitted November 4, 2010-Pasadena, California

Before: Johnnie B. Rawlinson and Milan D. Smith, Jr., Circuit Judges, and Robert C. Jones,*fn1 District Judge.

OPINION

Plaintiff-Appellee Michael Marlo and Defendant-Appellant United Parcel Service, Inc. (UPS) appeal or cross-appeal from a jury verdict awarding Marlo unpaid overtime, meal, and rest-period wages. UPS classified Marlo as an executive and administrative employee under California's Industrial Welfare Commission (IWC) Wage Order No. 9, Cal. Code Regs. tit.

8, § 11090 (2005), thereby purporting to exempt him from the California Labor Code's overtime-pay requirements. See Cal. Lab. Code § 515(a). The district court initially certified a class comprised of full-time supervisors employed by UPS from 2000 to 2004, and appointed Marlo class representative. In 2008, however, the court decertified the class on the ground that Marlo had failed to establish that common issues of law or fact predominated over individual ones. See Fed. R. Civ. P. 23(b)(3).

We have jurisdiction under 28 U.S.C. § 1291. We hold that the district court did not abuse its discretion in decertifying the class. We address the remaining issues in a memorandum disposition filed contemporaneously with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

From May 6, 1999, through November 12, 2008, Marlo worked for UPS as a hub supervisor, preload supervisor, and on-road supervisor (collectively, full-time supervisor or FTS). During that time, Marlo worked more than forty hours per week on a regular basis without taking meal or rest-period breaks, or receiving overtime compensation. As a hub supervisor, Marlo supervised hourly employees and part-time supervisors engaged in unloading, sorting, and loading packages. His duties included assigning employees tasks within their defined work areas, providing training to ensure safety and efficiency, monitoring employees' performance, and coordinating delivery times and volume. As a preload supervisor, Marlo supervised and trained hourly employees and part-time supervisors loading packages onto cars for delivery. As an on-road supervisor, Marlo supervised employees delivering packages.

Marlo filed suit against UPS on May 6, 2003. On June 10, 2004, the district court certified a class under Federal Rule of Civil Procedure 23 and appointed Marlo class representative. In its class-certification order, the district court determined that Marlo "demonstrated that the job duties as set forth by UPS are similar with regard to the proposed class, and that UPS applies an overtime exemption policy to the proposed class based on their job titles." The district court concluded that a class action was a superior method for adjudicating the controversy because "Full Time Supervisors, especially those still employed at UPS, may fear reprisal, precluding them from filing individual actions[,] . . . and because of the large volume of individual actions that might proceed . . . if the claims were adjudicated individually." The class consisted of FTS employed by UPS from 2000 to 2004.

The district court granted summary judgment in UPS's favor on August 22, 2005. Marlo appealed, and we reversed and remanded, concluding that "Marlo has raised material issues of fact related to whether the FTS 'customarily and regularly exercise[ ] discretion and independent judgment.' " Marlo v. United Parcel Serv., Inc., 254 Fed. App'x. 568, 568 (9th Cir. 2007) (citing Cal. Code Regs. tit. 8 § 11090(1)(A)(1)(d)).

On remand, the district court decertified the class. See Marlo v. United Parcel Serv., Inc., 251 F.R.D. 476 (C.D. Cal. 2008). The court noted that its concern about the class-wide applicability of the evidence "has ripened into doubt regarding the continuing efficacy of a class action in this case." Id. at 480. Noting that "[a]s a general rule, this Court does not consider decertification necessary," id. at 488, it nonetheless concluded that Marlo had not established predominance, noting that the existence of a uniform policy classifying FTS as exempt is insufficient absent evidence of misclassification; id. at 484; that Marlo had relied heavily on a survey that was neither reliable nor representative of the class, id. at 485-86; and that his remaining evidence similarly was not representative of the class and did not address the "primarily engaged" element of the exemptions under IWC Wage Order No. 9, id. at 486-87. The court concluded:

Plaintiff's evidence is essentially individual testimony and an exemption policy. Under the circumstances in this case, where Plaintiff alleges that 1200 FTS have been misclassified as exempt employees, Plaintiff had to provide common evidence to support extrapolation from individual experiences to a class-wide judgment that is not merely speculative. Plaintiff has not come forward with common proof sufficient to allow a fact-finder to make a class-wide judgment as to the FTS.

Id. at 486. Moreover, "[a]s the Court has found that individual issues predominate in this case, a class action is not the superior method for litigating this matter." Id. at 487. The court certified the issue for interlocutory appeal and stayed the action ...


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