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Kilby v. CVS Pharmacy, Inc.

United States Court of Appeals, Ninth Circuit

December 31, 2013

Nykeya KILBY, individually and on behalf of all others similarly situated, Plaintiff-Appellant,
v.
CVS PHARMACY, INC., Defendant-Appellee. Kemah Henderson, individually and on behalf of all others similarly situated; Taquonna Lampkins, individually and on behalf of all others similarly situated; Carolyn Salazar, individually and on behalf of all others similarly situated, Plaintiffs-Appellants,
v.
JPMorgan Chase Bank NA, Defendant-Appellee.

Page 1193

James T. Hannink, James F. Clapp, Esquire, Zachariah P. Dostart, Dostart Clapp & Coveney, LLP, San Diego, CA, Michael Rubin, Altshuler Berzon LLP, Matthew Righetti, Righetti Glugoski, P.C., San Francisco, CA, Kevin J. McInerney, Esquire, McInerney & Jones, Reno, NV, for Plaintiff-Appellant.

Timothy J. Long, Esquire, Orrick Herrington & Sutcliffe, LLP, Sacramento, CA, Geoffrey Moss, Orrick, Herrington & Sutcliffe LLP, Los Angeles, CA, Michael Weil, Orrick Herrington & Sutcliffe LLP, San Francisco, CA, for Defendant-Appellee.

Before: BARRY G. SILVERMAN, CONSUELO M. CALLAHAN, and N. RANDY SMITH, Circuit Judges.

ORDER

These cases require us to decide, as a matter of California law, the proper interpretation of Section 14 in California Wage Order 4-2001 and California Wage Order 7-2001.[1] Both sections address the circumstances under which an employer has an obligation to provide an employee with a seat. We respectfully request that the California Supreme Court exercise its discretion to decide the certified questions set forth below.

I. Questions Certified

The applicable Wage Orders require that an employer provide " suitable seats" to employees " when the nature of the work reasonably permits the use of seats." IWC Wage Order 4-2001 § 14(A); IWC Wage Order 7-2001 § 14(A). Pursuant to Rule 8.548 of the California Rules of Court, we request that the California Supreme Court answer the following questions regarding Section 14(A) of these Wage Orders:

1. Does the phrase " nature of the work" refer to an individual task or duty that an employee performs during the course of his or her workday, or should courts construe " nature of the work" holistically and evaluate the entire range of an employee's duties?
a. If the courts should construe " nature of the work" holistically, should the courts consider the entire range of an employee's duties

Page 1194

if more than half of an employee's time is spent performing tasks that reasonably allow the use of a seat?
2. When determining whether the nature of the work " reasonably permits" the use of a seat, should courts consider any or all of the following: the employer's business judgment as to whether the employee should stand, the physical layout of the workplace, or the physical characteristics of the employee?
3. If an employer has not provided any seat, does a plaintiff need to prove what would constitute " suitable seats" to show the employer has violated Section 14(A)?

The California Supreme Court shall not be bound by our phrasing of the questions. Cal. R. Ct. 8.548(f)(5). We agree to accept and follow the court's decision. Cal. R. Ct. 8.548(b)(2).

II. Statement of Facts

Kilby v. CVS Pharmacy, Inc., Case No. 12-56130

Nykeya Kilby (" Kilby" ) worked for CVS Pharmacy, Inc. (" CVS" ) as a Clerk/Cashier for an eight-month period in 2008. Her primary responsibility was to operate a cash register at the front of the store. This responsibility included scanning merchandise, bagging merchandise, and processing customer payments. Kilby spent about ninety percent of her time operating the cash register. The rest of the time she performed tasks that required her to move around the store, such as gathering shopping carts and restocking display cases.

CVS informed Kilby during her training that she would be expected to stand for long periods of time. CVS has a policy of not providing seats to Clerk/Cashiers because, in CVS's judgment, standing while operating the cash register promotes excellent customer service. Pursuant to this policy, CVS did not furnish Kilby with a seat while she operated the cash register.

Kilby brought a putative class action in the U.S. District Court for the Southern District of California on behalf of current and former employees of CVS who held the position of Clerk/Cashier. Kilby alleged a violation of California Wage Order 7-2001 Section 14(A). The district court found that the " ‘ nature of the work’ performed by an employee must be considered in light of that individual's entire range of assigned duties" and that " courts should consider an employer's ‘ business judgment’ when attempting to discern the nature of an employee's work." Using this interpretation of Section 14, the district court denied class certification because the duties of Clerk/Cashiers are inconsistent from day to day, from shift to shift, and from employee to employee. The district court also granted summary judgment to CVS, because many of Kilby's duties required her to stand, CVS expects its Clerk/Cashiers to stand, and CVS informed Kilby of that expectation.

Henderson v. JPMorgan Chase Bank, Case No. 13-56095

Kemah Henderson, Taquonna Lampkins, Carolyn Salazar, and Tamanna Dalton (together " Henderson" ), all former tellers employed by JPMorgan Chase Bank (" JPMorgan" ), brought a putative class action on behalf of current and former tellers of JPMorgan. Henderson alleged a violation of California Wage Order 4-2001 Section 14(A). Pursuant to its company policy, JPMorgan does not provide its tellers with seats.

All tellers spend a majority of their time at their teller station accepting deposits, cashing checks, and handling withdrawals. Tellers may also have additional duties, such as escorting customers to safety deposit boxes, working the drive-up teller

Page 1195

window, or checking if ATMs are working properly. In addition, some of JPMorgan's banks have physical differences in their layouts. The district court denied class certification, because it interpreted Section 14 to mean that the nature of a teller's work could change based on the tasks the teller performs while away from the teller station, the bank at which the teller works, and which shift the teller works.

III. Explanation of Certification

This request satisfies the requirements of Rule 8.548(a) of the California Rules of Court, because there is no controlling California precedent explaining how Section 14 of California Wage Order 4-2001 and Wage Order 7-2001 should be interpreted, and this question will determine the issues on appeal in these cases. The ambiguity of Section 14 and the consequences of its meaning to the citizens of California lead us to conclude that its interpretation should be left to the California Supreme Court.

Section 14(A) requires that " [a]ll working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats." IWC Wage Order 4-2001 § 14; IWC Wage Order 7-2001 § 14. The Wage Orders provide no definitions for " nature of the work," " reasonably permits," or " suitable seats." Thus, we must start with the text of Section 14 to find the meaning of these phrases. See Martinez v. Combs, 49 Cal.4th 35, 109 Cal.Rptr.3d 514, 231 P.3d 259, 268 (2010).

Kilby and Henderson contend that Section 14 refers to discrete tasks performed by employees. In their view, if an employee is engaged in a task that can objectively be performed while seated, the employer must provide the employee with a suitable seat. Under this interpretation, neither the employee's other tasks nor the employer's business judgment would affect whether the nature of the work reasonably permits the use of seats.

CVS and JPMorgan contend that the language of Section 14 requires courts to take a holistic approach. Under this approach, courts should discern the nature of an employee's work by considering the entire range of tasks the employee actually performs in combination with the employee's job description, the layout of the workplace, the employer's business judgment concerning the employee's job, and any other factors the court deems relevant. An employer would only be subject to Section 14(A) when all of these factors taken together reasonably permit the use of a seat.

The district courts in both cases adopted a holistic approach. The district court in Kilby v. CVS Pharmacy, Inc. read Section 14(A) to require an inquiry into how an employee spends his or her time during the workday. The district court applied the holistic approach by asking whether " the majority of an employee's assigned duties must physically be performed while standing [; ]" if the answer is yes, then " the ‘ nature of the ...


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