Luckett v. McDonald's Restaurants of California CA2/1 ( 2023 )

Filed 11/30/23 Luckett v. McDonald’s Restaurants of California CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
ROOSEVELT LUCKETT, B317481
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 20STCV05066)
v.
REDACTED OPINION FOR
MCDONALD’S RESTAURANTS PUBLIC VIEW*
OF CALIFORNIA, INC. et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Lia Martin, Judge. Affirmed.
* This case involves material from a sealed record.
In
accordance with Civil Code section 3426.5 and California Rules of
Court, rules 8.45, 8.46(g)(1) and (2), we have prepared both public
(redacted) and sealed (unredacted) versions of this opinion. We
order the unredacted version of this opinion sealed.
The deRubertis Law Firm, David M. deRubertis, Joshua M.
Webster; Lavi & Ebrahimian, Joseph Lavi and Jordan D. Bello
for Plaintiff and Appellant.
Gibson, Dunn & Crutcher, Theane D. Evangelis, Bradley J.
Hamburger, Lauren Blas; Jones Day, Amanda C. Sommerfeld
and Amanda W. Molinari for Defendants and Respondents.
_______________________
Plaintiff Roosevelt Luckett sued his former employer,
McDonald’s Restaurants of California, Inc. (McDonald’s or
Defendant) under the Private Attorneys General Act of 2004
(PAGA; Lab. Code, § 2698 et seq.). Luckett alleged McDonald’s
violated Industrial Welfare Commission Wage Order No. 5-2001,
section 14(A), which requires employers to provide suitable seats
to their employees “when the nature of the work reasonably
permits the use of seats,” and section 14(B), which requires an
employer to provide suitable seats in reasonable proximity of the
work area for employees to use during lulls in operation. (Cal.
Code Regs., tit. 8, § 11050, subd. 14(A) &(B) [Wage Order No. 5-
2001]; Kilby v. CVS Pharmacy, Inc. (2016) 63 Cal.4th 1, 19
(Kilby).)
McDonald’s moved for summary judgment. Its arguments
included the following three: First, there was no factual dispute
that the nature of the work did not reasonably permit the use of a
seat at its drive-thru cash booths. Second, even if the nature of
the work did so permit, there was no factual dispute that there
was no “suitable” seat for the drive-thru cash booth. Third,
Luckett failed to exhaust administrative remedies as required
under PAGA with respect to his section 14(B) claim and thus, the
claim was time barred. The trial court granted the motion,
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finding there was no triable issue of fact for these three issues
and concluding that the remaining issues were moot.
Luckett argues triable issues of material fact existed as to
each of the three matters and the trial court erroneously weighed
evidence and adjudicated conflicts in favor of McDonald’s. To
attempt establishing a triable issue that the nature of drive-thru
cash booth work permits seating and that suitable seats exist,
Luckett primarily relies on evidence that McDonald’s
accommodated employees with medical conditions by modifying
their drive-thru cash booth job duties and permitting them to sit.
But accommodating such disabled and injured employees did not
create a factual dispute regarding the more expansive tasks
expected of full-time, non-disabled employees that are
incompatible with sitting. We conclude Luckett’s inapposite
evidence did not demonstrate a triable issue, and thus affirm.
FACTUAL AND PROCEDRAL BACKGROUND
A. Legal Background
Wage Order No. 5-2001 section 14(A) requires that “All
working employees shall be provided with suitable seats when
the nature of the work reasonably permits the use of seats.”
Section 14(B) states, “When employees are not engaged in the
active duties of their employment and the nature of the work
requires standing, an adequate number of suitable seats shall be
placed in reasonable proximity to the work area and employees
shall be permitted to use such seats when it does not interfere
with the performance of their duties.” (Wage Order No. 5-2001.)
B. Luckett’s Lawsuit
Luckett worked for a McDonald’s restaurant located on
Venice Boulevard in Los Angeles, California from February 14,
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2018 to February 12, 2019. From time to time, Luckett worked in
the drive-thru cash booth. Luckett asked whether he could use a
seat in the drive-thru cash booth, and McDonald’s denied his
request.
On October 24, 2019, Luckett provided notice to the Labor
and Workforce Development Agency (LWDA) that McDonald’s
“failed to comply with the requirements of [s]ection 14(A) of Wage
Order [No.] 5[-2001] by failing to provide suitable seating [to] him
and other current and former ‘aggrieved’ hourly paid non-exempt
employees in California who worked as cashiers and/or who
performed other duties that reasonably permitted the use of
seats . . . .” Luckett also stated that pursuant to Huff v. Securitas
Security Services USA, Inc. (2018) 23 Cal.App.5th 745,
“[e]mployers are subject to civil penalties under PAGA for any
other violation of the California Labor Code” involving their
employees.
On February 7, 2020, Luckett filed a complaint for civil
penalties under PAGA. Luckett sought to bring the action on
behalf of himself and other former or current McDonald’s
employees who were aggrieved under section 14 by McDonald’s
failure to provide suitable seating when the nature of the work
reasonably permitted the use of seats.
On October 9, 2020, Luckett submitted further notice to the
LWDA “to clarify that [his] allegations regarding McDonald’s
failure to provide suitable seating arise under both [sections]
14(A) and 14(B) of the applicable [w]age [o]rder.” The notice
stated, “Mr. Luckett further alleges that McDonald’s failed to
comply with the requirements of [s]ection 14(B) of Wage Order
[No.] 5[-2001] when Mr. Luckett and other drive-thru cashiers
were not engaged in the active duties of their employment and
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the nature of the work required standing by failing to place an
adequate number of suitable seats in reasonable proximity to the
work area and failing to permit employees’ use of such seats
when it did not interfere with the performance of their duties.”
On November 9, 2020, Luckett filed a first amended
complaint to include an allegation under section 14(B).
C. Defendant’s Motion for Summary Judgment
On April 8, 2021, McDonald’s filed a motion for summary
judgment, or in the alternative, summary adjudication. It made
six arguments. First, McDonald’s argued there was no factual
dispute that the nature of the work did not reasonably permit the
use of a seat at its drive-thru cash booths. It argued the booths
were a tight workspace, designed for standing, and the fluidity of
movement required to service customers (including frequent foot
movements, reaching, bending, shifting, and twisting) could not
be reasonably performed from a seated position. Additionally,
placing a seat in the booth would create a tripping hazard and
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booth would also require cashiers to transition from sitting to
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Second, McDonald’s argued that even if the nature of the
work did reasonably permit use of a seat, there was no factual
dispute that there was no “suitable” seat for the drive-thru cash
booth.
Third, McDonald’s argued that Luckett failed to exhaust
administrative remedies as required under PAGA with respect to
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his section 14(B) claim and thus, the claim was procedurally
barred. Fourth and fifth, even if Luckett’s section 14(B) claim
was not barred, it failed because it was undisputed that there
were no “inactive” periods of work, and even if there were
“inactive” periods, it was undisputed that placing a seat in the
drive-thru cash booth was a tripping hazard and would interfere
with the performance of duties. Sixth, McDonald’s argued
Luckett lacked standing to pursue the lawsuit because he could
not show that he personally experienced a violation of the law.
Defendant’s evidentiary submission in support of its motion
included among other things the declaration of its operations
manager in California since January 2013, Saad Sabbagh,1 the
declaration of McDonald’s then-director of customer experience,
Michael Cramer, and the report of a retained ergonomics expert,
Jeffrey Fernandez, PhD.
1. Drive-thru Cash Booth Employee Tasks
It is undisputed that in December 2018, Defendant
operated approximately 78 corporate McDonald’s restaurants in
California with drive-thru cash booths.2 According to Sabbagh,
Defendant staffed each shift at each restaurant with between
three and 21 employees. Employees could work at a variety of
1 Sabbagh began working for McDonald’s USA, LLC in
1994. He became the operations manager in California in
January 2013, and was responsible for 28 California corporate-
owned McDonald’s restaurants. Sabbagh oversaw the operation
of those restaurants, including ensuring service and safety
standards for customers and employees.
2 During the relevant period, one store closed and another
was sold.
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locations within the restaurant, including the front counter, the
grill, the fries station, the drive-thru cash booth, or the presenter
booth. The drive-thru cash booth is where drive-thru customers’
orders are received and where customers pay for their orders.
The presenter’s booth is a second window where customers
receive their food.
Drive-thru cash booth employees have primary and
secondary duties. Their primary duties include taking orders and
completing payment transactions for drive-thru customers, and
providing “excellent customer service” while doing so. For
example, Sabbagh observed, “It is McDonald’s expectation that
employees in the cash booth reach out to customers who are
sitting in their vehicles, rather than make our guests take off
their seat belts, stretch, or open their vehicle doors to reach in
toward the employee during a payment transaction.” (Italics
omitted.) Sabbagh also declared that McDonald’s places great
emphasis on the guest experience and speed of service.
Therefore, McDonald’s tracks the speed of service for each
restaurant and provides training regarding how to diagnose and
fix slowdowns.
Sabbagh declared that McDonald’s “provide[s] employees
with formal meal and rest breaks, as well as time to get a drink,
use the restroom, and wash their hands during their shifts, as
needed. There is seating in the crew break room to ensure that
employees are able to sit and rest during their formal breaks (i.e.,
those required by State law). Additionally, during the COVID-19
[p]andemic and dining room closures, employees may also use
seating in the restaurant lobbies and dining rooms during formal
breaks to allow for employee social distancing. However,
generally speaking, outside of these breaks, it is not acceptable to
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McDonald’s for an employee to be sitting down and doing nothing
while on duty—except, perhaps, as an accommodation for a
medical issue.” Thus, to provide the requisite level of service,
McDonald’s expects its employees to remain busy between
customer transactions by performing secondary duties.
Secondary duties vary from restaurant to restaurant and
can include activities both within and outside of the drive-thru
cash booth. Secondary duties within the cash booth may include,
for example, assembling condiment bags or Happy Meals boxes,
cleaning used service trays, cleaning the cash booth, stocking the
cash booth with secondary work items, changing out the cash
register drawer, re-loading the cash register and receipt tape,
and verifying cash counts.
2. Cramer’s Declaration Regarding Cash Booth Design
and Business Judgment
At the time of the motion, Cramer had been McDonald’s
director of customer experience since 2012. In that role, Cramer
led a department that analyzed “information collected from the
restaurants to identify the speed of service for [their] guests and
help identify areas that need attention to continuously improve
guest service.” Cramer previously worked as the director of
operations research for six years, during which time he and his
team were responsible for the design features, layouts, and other
elements of the restaurants.
According to Cramer, McDonald’s specifically designed the
drive-thru cash booths for fast, efficient, and ergonomically sound
standing work. When carrying out their primary duties in the
drive-thru cash booth, employees “need to extend one or both
arms out the cash booth window to reach the guest who is seated
in his or her vehicle, who will be at varying distances from the
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cash booth. Employees are best able to reach the guest to collect
and return forms of payment from a standing position. Moreover,
these reaches are done with a fluid movement and require that
employees are able to rotate 90 degrees, as the employee is often
multitasking by taking the next guest’s order through their
headset and using the order touchscreen, then alternating to the
payment touchscreen to process payment for the guest at the
cash booth window.” (Fn. omitted.)
Although Cramer’s team considered placing a seat in the
cash booth, it determined that from an ergonomics perspective,
the drive-thru cash booth job was most safely and efficiently
performed from a standing position. Consequently, the height of
the work table in the drive-thru cash booth is appropriate for
standing work. Cramer’s team concluded that with varying
operating conditions and frequent changes to activities in that
workspace, a seat would be in the employee’s way and pose a trip
hazard as the employee maneuvered within the cash booth,
particularly when more than one employee was in the booth at a
time.
Cramer also declared that McDonald’s “measured many
aspects of the guest experience and studied process
improvements to ensure that it is providing the best service
experience possible to its guests.” His team “leverage[d]
information collected from the restaurants to identify the speed of
service for [their] guests and help identify areas that need
attention to continuously improve guest service.” XXXXXXXXXX
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line of cars at the [d]rive-[t]hru is perceived to be too long, people
may turn away from the [d]rive-[t]hru.”
Based upon a guest complaint hotline, McDonald’s
determined that guests are less likely to return if they are
dissatisfied with key elements of their service, including speed.
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3. Luckett’s Testimony Included with Defendant’s
Motion
Luckett testified that as a drive-thru cashier, he placed the
customer’s order by keying it into a touch screen. When the
customer got to the cashier booth, he repeated the order, and
collected payment. He agreed that vehicles pulled up to the
window at varying distances. When asked whether he would
“reach out the window to grab” the cash or credit card from the
customer if they were too far away, Luckett responded, yes.
Luckett later testified, however, that most of the time when
customers were too far from the window, the customers would get
out their cars to provide him with payment. He only leaned out
so that the customer would not have to get out of his or her car
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“once or twice” during his employment. Luckett would then
provide change if appropriate and ask whether the customer
wanted a receipt. If so, he would hand them the receipt. He also
testified that he sometimes had to lean out the window to hear
customers. Luckett acknowledged that customers will leave the
drive-thru line when they feel that it is taking too long.
4. Dr. Fernandez’s Opinions
McDonald’s retained Dr. Fernandez to consider whether
the tasks performed by the drive-thru cashier booth employees
reasonably permitted the use of a seat from an ergonomics
perspective. He was also to determine whether any commercially
available seating option would be ergonomically suitable for the
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3 Dr. Fernandez and McDonald’s observed that the COVID-
19 pandemic and the resulting closure of in-restaurant dining
increased the number of drive-thru transactions. Additionally,
elevated safety standards as a result of the pandemic required
increased cleaning procedures and the use of hand mounts on
credit card readers, cash boxes to collect or return cash to the
customers, plexiglass between the cash booth employees and
guests, and XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
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5. Sitting Accommodation
Because the work in the cash booth is most appropriately
done from a standing position, McDonald’s generally only allows
employees to sit as an accommodation for medical reasons.
Sabbagh declared that “[i]n order to do this, . . . [McDonald’s] will
accept a temporary reduction in performance expectations for
injured or disabled employees in the cash booth by excusing them
from some or all of their secondary duties, and relaxing
expectations as to speed and efficiency.” Similarly, Cramer
stated that when accommodating employees by permitting use of
a seat in the drive-thru cash booth, McDonald’s relaxes its
“expectations for frequency of movement, speed, and performance
of secondary duties.” In determining whether an employee may
be accommodated with a seat in the cash booth, McDonald’s
management and human resources will evaluate and balance on
a case-by-case basis the desire to enable injured employees to
continue to work with the needs of the business, considering
staffing levels, space constraints within the cash booth,
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availability of access to secondary duties, whether secondary
duties should be reallocated to other employees, and the length of
time the accommodation may be needed. According to Sabbagh,
however, “McDonald’s cannot allow all employees to sit all the
time because of the impacts it will have on speed of service,
overall guest experience, and importantly, employee safety.”
D. Luckett’s Opposition to Defendant’s Motion for
Summary Judgment
In opposition to the summary judgment motion, Luckett
argued that McDonald’s own policy XXXXXXXXXXXXXXXXX
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history of providing drive-thru cashiers with seats,
demonstrating it was feasible to do so. This argument was based
on XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
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that McDonald’s accommodation policy did not eliminate drive-
thru cashier job functions. Rather, it identified “existing job
positions” with physical requirements that would allow injured
employees to return to work without reaggravating their injuries.
Moreover, Luckett claimed the duties in the drive-thru cashier
booth required limited movement, and the accommodated
employees (and another employee who decided to sit while
working) evidenced that there was enough room in the drive-thru
cash booth for a seat, that a suitable seat existed, and that all job
functions could be performed seated.
Luckett also argued McDonald’s XXXXXXXXXXX
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McDonald’s denied having conducted any studies of the impact of
a seat on transaction times or revenue, and that Defendant’s
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Luckett further argued that Dr. Fernandez’s opinion was
unreliable for a number of reasons, XXXXXXXXXXXXXXXX
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LWDA related back to his first, and that his section 14(B) claim
was therefore not raised outside of the statute of limitations.
In support of his opposition, Luckett submitted portions of
his deposition, Sabbagh’s deposition, and Dr. Fernandez’s
deposition, McDonald’s XXXXXXXXXXXXXXXXXXXXXXX
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Defendant’s discovery responses, and declarations of 10
McDonald’s employees.
1. McDonald’s Guidance Regarding Secondary Duties
Luckett cited McDonald’s XXXXXXXXXXXXXXXXX
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2. McDonald’s Policy and Practice of Providing Seats,
and Declarations from Three Accommodated
Employees
Luckett argued McDonald’s XXXXXXXXXXXXXXX
XXXXXXXXXXXXXXX and has a history of providing seats to its
cashiers, demonstrating that doing so is feasible. In particular,
Luckett XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
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Luckett argued that the purpose of Defendant’s
accommodation policies was to assist an injured employee to
return to work without risk of further injury “by identifying
existing job positions with physical requirements that align with
the crew member’s physical limitations.” XXXXXXXXXXXXXXX
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the language “existing job position.”
It is undisputed that pursuant to its policies, McDonald’s
provided seats to injured or disabled employees who worked in
the drive-thru cash booth. Luckett submitted declarations from
three employees who were so accommodated. Each of the
declarants stated they were able to successfully complete their
drive-thru cashier duties while seated. None of them received
any complaints from customers, coworkers, or management.
Each of them also stated that based upon their experience, they
believed the nature of the work reasonably permitted use of a
seat, and that there was enough space in the cash booth for a
seat.
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Sabbagh, who was deposed as McDonald’s person most
knowledgeable (PMK) concerning certain accommodated
employees, testified that XXXXXXXXXXXXXXXXXXXXXXXXXX
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testified that XXXXXXXXXXXXXXXXXXXXXXXXXXXXX
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3. Luckett’s Testimony Included with His Opposition
Luckett testified he did not have the secondary job duties of
assembling condiment packets in the cash booth although he did
assemble Happy Meals boxes there. He did not recall doing any
other duties as a cashier aside from customer transactions and
assembling Happy Meals boxes.
Luckett also testified that one night, at approximately
11:00 p.m., he observed a night-shift drive-thru cashier at the
McDonald’s where he worked use a metal folding-chair. He
asked the cashier why he had a chair, and the cashier responded
that he had a doctor’s note. Luckett watched the cashier perform
approximately 15 shifts and observed that the cashier was able to
perform all job functions sitting down. The cashier only stood to
go on break. Luckett never saw any other cashier sit while
working.
Luckett’s submission also included deposition testimony
clarifying that approximately four times a shift, Luckett needed
to lean out the window because he could not hear the customer.
20
He also testified that the cash drawer, which he stated pops open
two to three inches for a cash payment, will not pop open for a
credit card transaction or for an Apple Pay payment. Further, he
testified that not every customer requested a receipt.
4. Other Employee Declarants
Seven employee declarants stated that they worked in the
cashier booth alone and that if anyone else entered the booth it
was sporadic and swift. Further, they stated that standing for
prolonged periods of time caused them physical discomfort. Six
employees stated neither they nor anyone they observed was
provided a seat to use during cashiering duties. One of the seven
employees, however, “regularly grab[bed] a seat from the dining
area for use” “due to the physical discomfort associated with
standing for prolonged periods of time.” That employee observed
other employees do so as well. He declared that he and others
who grabbed seats for themselves were able to successfully
perform their cashiering duties4 and did not receive complaints
from customers, coworkers, or management. Further, each of the
seven employees stated that based on their experience, the tasks
associated with the drive-thru cashier position reasonably
permitted use of a seat. “[A]lmost all” the needed equipment was
within reaching distance and customers ordering at the drive-
thru window “normally” positioned their vehicles close enough, so
4 In ruling on McDonald’s evidentiary objections, the trial
court limited its consideration of this declarant’s statement about
successfully performing job duties to the employee’s own
experience.
21
that reaching was minimal.5 They believed there was enough
free space in the cash booth for a seat, including a stationary
chair with a back rest or a stool. Moreover, they believed the
time it would take to transition between sitting and standing was
minimal.
5. Dr. Fernandez’s Deposition
During his deposition, Dr. Fernandez XXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXX.
During the deposition, Luckett challenged Dr. Fernandez’s
conclusion that XXXXXXXXXXXXXXXXXXXXXXXXXXXXX. Dr.
Fernandez XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
5 The declarants each stated that having a seat would
make them more productive because they would experience less
physical discomfort and fatigue from standing. The court
sustained McDonald’s objection to this statement as an improper
lay opinion.
In all 10 declarations, the employees stated that using a
seat would not result in actual or perceived slower service times,
decreased car counts, or decreased customer satisfaction. The
trial court sustained McDonald’s objection to the statement on
the basis that it lacked foundation and personal knowledge or
called for speculation.
Luckett does not challenge any of these evidentiary rulings
on appeal.
22
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXX.
Dr. Fernandez XXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXX.
Dr. Fernandez XXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX.
6. Studies That Providing a Seat in the Cash Booth Will
Adversely Impact Service
Luckett argued that Cramer’s testimony XXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXX was conjecture because Luckett asked for
relevant studies during discovery and McDonald’s responded that
there were none.
Specifically, Luckett noticed the deposition of Defendant’s
PMK regarding “[a]ny studies, surveys, or other analysis
conducted by Defendant, or on Defendant’s behalf, regarding”
(1) “customer perceptions of aggrieved employees using
seats/stools at Defendant’s restaurants (scope limited to the
drive-thru)” and (2) “what impact, if any, the use of a seat by
23
aggrieved employees during the performance of their duties
(scope limited to the drive-thru), would have on their
productivity.” On January 11, 2021, McDonald’s responded that
it was not aware of any such studies.
During his PMK deposition, Sabbagh testified XXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
E. The Trial Court’s Ruling
The trial court ruled there was no factual dispute that the
nature of the work did not reasonably permit use of a seat in
McDonald’s California drive-thru booths. The court found that
the evidence demonstrated McDonald’s expectations of the level
of customer service that drive-thru cash booth employees were to
provide were reasonable and that their job duty was best
accomplished standing. The “anecdotal” statements from Luckett
and employee declarants “that they believe seating is reasonable
[are] insufficient” to raise a triable issue of material fact.
The court also found there was no factual dispute that
there is no suitable seat for the drive-thru cash booth. Dr.
Fernandez’s XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXX were sufficient to shift the burden to
Luckett to show a triable issue. Luckett’s evidence that
McDonald’s offered a range of different seats as a temporary
accommodation did not address the accompanying reduction in
24
job requirements or performance expectations for such
employees.
Finally, the court found that Luckett’s section 14(B) claim
was procedurally barred because Luckett did not provide PAGA
notice to the LWDA within the one-year statute of limitations,
and that his amended notice did not relate back because
Luckett’s first notice did not state facts supporting the claimed
section 14(B) violation.
DISCUSSION
A. Summary Judgment Framework and Standard of
Review
A “motion for summary judgment shall be granted if all the
papers submitted show that there is no triable issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law. . . .” (Code Civ. Proc., § 437c, subd. (c).) A
defendant seeking summary judgment has met the “burden of
showing that a cause of action has no merit if the party has
shown that one or more elements of the cause of action . . . cannot
be established.” (Id., subd. (p)(2); see also King v. United Parcel
Service, Inc. (2007) 152 Cal.App.4th 426, 432.) Once the
defendant has met that burden, the burden shifts to the plaintiff
“to show that a triable issue of one or more material facts exists
as to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2);
see also Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th
1510, 1518.)
“An issue of fact can only be created by a conflict of
evidence. It is not created by ‘speculation, conjecture,
imagination or guess work.’ [Citation.] Further, an issue of fact
is not raised by ‘cryptic, broadly phrased, and conclusory
assertions’ [citation], or mere possibilities [citation]. ‘Thus, while
25
the court in determining a motion for summary judgment does
not “try” the case, the court is bound to consider the competency
of the evidence presented.’ [Citation.]” (Sinai Memorial Chapel
v. Dudler (1991) 231 Cal.App.3d 190, 196-197.)
We review the trial court’s summary judgment ruling de
novo. We liberally construe the plaintiff’s evidentiary submission
while strictly scrutinizing the defendant’s own showing and
resolve any evidentiary doubts or ambiguities in the plaintiff’s
favor. (Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th
1078, 1083, citing Weber v. John Crane, Inc. (2006) 143
Cal.App.4th 1433, 1438.)
B. Luckett’s Failure to Provide Timely Notice to the
LWDA Bars His Section 14(B) Claim
Before an aggrieved employee may bring a civil action
under PAGA, the employee “must provide notice to the employer
and the responsible state agency ‘of the specific provisions of [the
Labor Code] alleged to have been violated’ ” as well as “ ‘the facts
and theories to support the alleged violation.’ ” (Williams v.
Superior Court (2017) 3 Cal.5th 531, 545, quoting Lab. Code,
§ 2699.3, subd. (a)(1)(A).) “If the agency elects not to investigate,
or investigates without issuing a citation, the employee may then
bring a PAGA action.” (Williams v. Superior Court, supra, at
p. 545, citing Lab. Code, § 2699.3, subd. (a)(2).) “The evident
purpose of the notice requirement is to afford the relevant state
agency, the [LWDA], the opportunity to decide whether to
allocate scarce resources to an investigation, a decision better
made with knowledge of the allegations an aggrieved employee is
making and any basis for those allegations. Notice to the
employer serves the purpose of allowing the employer to submit a
response to the agency [citation], again thereby promoting an
26
informed agency decision as to whether to allocate resources
toward an investigation.” (Williams v. Superior Court, supra, at
pp. 545-546.)
The parties do not dispute that PAGA required Luckett to
give notice within one year of his termination date, February 12,
2019. (See Brown v. Ralphs Grocery Co. (2018) 28 Cal.App.5th
824, 839, citing Code Civ. Proc., § 340, subd. (a).) Rather, they
dispute whether Luckett’s second notice, provided on October 9,
2020, can relate back to the original notice; if it does not, the
second notice is untimely.
Luckett argues Hutcheson v. Superior Court (2022) 74
Cal.App.5th 932 supports his argument that his section 14(B)
claim can relate back. In that case, the appellate court concluded
an amended PAGA complaint that sought to substitute a second
employee as the named plaintiff could relate back to the original
complaint. (Id. at p. 936.) The Hutcheson court acknowledged
applying the relation back doctrine to PAGA claims could
“frustrate the Legislature’s intent to require compliance with” the
notice requirement as described in Williams v. Superior Court,
supra, 3 Cal.5th at page 546. (Hutcheson v. Superior Court,
supra, at p. 943.) However, the purposes for such notice had been
met in the case before it. (Ibid.) The substitution of one named
plaintiff for another did “not expand the scope of the original
complaint” and the defendant “has had notice since [the date of
the original letter to the LWDA] of the facts and theories
underlying the claims.” (Id. at p. 941.) Thus, permitting the
amended complaint to relate back would not frustrate the
legislative purposes underlying the LDWA notice. (Hutcheson v.
Superior Court, supra, at p. 943.)
27
The case before us is markedly different. Here, Luckett did
not seek to substitute one plaintiff for another; he sought to add a
new claim under section 14(B). Whether he is barred from doing
so depends on whether his original letter sufficiently provided
notice of his section 14(B) claim. (See Hutcheson v. Superior
Court, supra, 74 Cal.App.5th at pp. 941, 943; Esparza v. Safeway,
Inc. (2019) 36 Cal.App.5th 42, 62 [“an untimely PAGA claim may
relate back to an earlier complaint only if the complaint was
preceded by timely notice to the LWDA”].)
Luckett contends his October 24, 2019 letter “provided
sufficient notice of the [section] 14([B]) claim by stating
[McDonald’s] ‘fail[ed] to provide suitable seating [to] him and
other current and former ‘aggrieved’ . . . employees in California
who worked as cashiers and/or performed other duties that
reasonably permitted the use of seats despite . . . the nature of
their work’ ” because “the nature of the drive-thru cashier duties
allowed for lulls in operation.”
We disagree. Luckett’s selective quotation fails to recite
important context at the beginning of this sentence. In full, the
sentence states, “Mr. Luckett maintains that [McDonald’s] failed
to comply with the requirements of [s]ection 14(A) of Wage Order
[No.] 5[-2001] by failing to provide suitable seating [to] him and
other current and former ‘aggrieved’ . . . employees in California
who worked as cashiers and/or performed other duties that
reasonably permitted the use of seats despite that the nature of
their work reasonably permitted the use of seats.” (Italics
added.) Thus, Luckett expressly limited the scope of the violation
he described to section 14(A), and neither the LWDA nor
McDonald’s would have reasonably read Luckett’s statement as
giving notice of a section 14(B) claim.
28
Even without this express limitation, Luckett’s argument is
without merit because section 14(B) does not apply when, as
described in his October 24, 2019 letter, the nature of the work
“reasonably permit[s] the use of seats.” Rather, it applies to
standing tasks when there is a lull in that work. Our Supreme
Court explained, “Both [sections 14(A) and 14(B)] may apply at
various times during the workday, though not at the same
time. . . . [S]ection 14(B) applies during ‘lulls in operation’ when
an employee, while still on the job, is not then actively engaged in
any duties. [Citation.] Taking the two provisions together, if an
employee’s actual tasks at a discrete location make seated work
feasible, he is entitled to a seat under section 14(A) while
working there. However, if other job duties take him to a
different location where he must perform standing tasks, he would
be entitled to a seat under section 14(B) during ‘lulls in
operation.’ ” (Kilby, supra, 63 Cal.4th at p. 19, third italics
added.)
Thus, Luckett’s notice that McDonald’s “fail[ed] to provide
suitable seating [to persons whose] duties . . . reasonably
permit[ed] the use of seats” refers in concept only to section 14(A)
and did not provide sufficient notice of his section 14(B) claim.
We conclude the trial court did not err in granting summary
judgment on this issue. Accordingly, we need not address the
merits of the parties’ arguments relating to Luckett’s section
14(B) claim, and our discussion below focuses only on his section
14(A) claim.
29
C. The Trial Court Did Not Err in Granting Summary
Judgment Because There Is No Factual Dispute that
the Nature of the Work Did Not Reasonably Permit
Use of a Seat
1. Legal Principles
In Kilby, supra, 63 Cal.4th 1, the Supreme Court explained,
“Whether an employee is entitled to a seat under section 14(A)
depends on the totality of the circumstances. Analysis begins
with an examination of the relevant tasks, grouped by location,
and whether the tasks can be performed while seated or require
standing. This task-based assessment is also balanced against
considerations of feasibility. Feasibility may include, for
example, an assessment of whether providing a seat would
unduly interfere with other standing tasks, whether the
frequency of transition from sitting to standing may interfere
with the work, or whether seated work would impact the quality
and effectiveness of overall job performance. This inquiry is not a
rigid quantitative analysis based merely upon the counting of
tasks or amount of time spent performing them. Instead, it
involves a qualitative assessment of all relevant factors.” (Id. at
pp. 19-20.)
In identifying the “relevant tasks,” “courts must examine
subsets of an employee’s total tasks and duties by location, such
as those performed at a cash register or a teller window, and
consider whether it is feasible for an employee to perform each
set of location-specific tasks while seated. Courts should look to
the actual tasks performed, or reasonably expected to be
performed, not to abstract characterizations, job titles, or
descriptions that may or may not reflect the actual work
performed. Tasks performed with more frequency or for a longer
30
duration would be more germane to the seating inquiry than
tasks performed briefly or infrequently.” (Kilby, supra, 63
Cal.4th at p. 18.) “[C]onsideration of all the actual tasks
performed at a particular location would allow the court to
consider the relationship between the standing and sitting tasks
done there, the frequency and duration of those tasks with
respect to each other, and whether sitting, or the frequency of
transition between sitting and standing, would unreasonably
interfere with other standing tasks or the quality and
effectiveness of overall job performance.” (Ibid.; id. at p. 20
[rejecting a “holistic approach” that would require a court to
“consider all of an employee’s tasks regardless of the frequency,
duration, and location of those tasks”].)
In assessing feasibility, the employer’s business judgment
and the physical layout of the workspace may be relevant
considerations. (Kilby, supra, 63 Cal.4th at pp. 21-22.) However,
physical differences among employees are not relevant to the
section 14(A) inquiry. “That provision requires a seat when the
nature of the work reasonably permits it, not when the nature of
the worker does.” (Kilby, supra, at p. 23.)
2. Analysis
a. A Drive-thru Cashier’s Actual Tasks Require
Movements That Cannot Be Performed from a
Seated Position
We begin “with an examination of the relevant tasks,
grouped by location, and whether the tasks can be performed
while seated or require standing.” (Kilby, supra, 63 Cal.4th at
pp. 19-20.)
31
(i) Primary Duties
It is undisputed that a drive-thru cashier’s primary job
duties are to confirm the customer’s order, take payment from
the customer, and under the proper circumstances, provide
change and/or a receipt to the customer. Luckett has not offered
any evidence to dispute that customer service is also part of a
drive-thru cashier’s primary duties or that customer service
includes providing fast service.
(ii) Secondary Duties
The parties dispute the extent of a drive-thru cashier’s
secondary duties. McDonald’s offered evidence in the form of Dr.
Fernandez’s report of XXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXX. Luckett attempts to create a factual dispute by
reference to XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX.
Luckett argues that XXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. As Kilby made
clear, however, in making a determination under section 14(A),
“Courts should look to the actual tasks performed, or reasonably
expected to be performed, not to abstract characterizations, job
titles, or descriptions that may or may not reflect the actual work
performed.” (Kilby, supra, 63 Cal.4th at p. 18.) XXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXX
Luckett also attempts to create a factual dispute by
observing XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
32
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. (See Kilby,
supra, 63 Cal.4th at p. 18.) XXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
(iii) The Movements Necessary to Perform Drive-
thru Cashier Tasks Require Standing
McDonald’s adduced evidence that the drive-thru cash
booth tasks require standing. XXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXX
Luckett seeks to demonstrate a triable issue XXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
We again observe that Kilby cautions against relying on abstract
characterizations or job descriptions in determining the nature of
the work. (Kilby, supra, 63 Cal.4th at p. 18.) Second, even
construing XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
33
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. Indeed,
McDonald’s presented evidence that the duties of an injured or
disabled drive-thru cashier that it has accommodated with a seat
are not coextensive with the ordinary, full duty tasks for that
position. Sabbagh and Cramer stated that when an
accommodated employee is permitted to sit in the booth,
McDonald’s reduces its expectations for performance, frequency
of movement, speed, efficiency, and the performance of secondary
duties.
In the trial court, Luckett claimed McDonald’s
accommodation policies merely identified “existing job positions
with physical requirements that align with the crew members
physical limitations.” However, XXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXX uses the language “existing job
position” or indicates an “existing job position” means the same
thing as an existing job position without any modification, i.e.,
full duty. On appeal, Luckett abandons this unpersuasive
“existing job position” argument, but insists XXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXX. He offers no cogent reason why XX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX,
and we reject his claim.
Luckett also points to evidence that drive-thru cashier
tasks can be performed seated in the form of his own testimony
concerning an accommodated employee he observed, the
declarations of three McDonald’s employees who were provided a
34
seat as an accommodation in the drive-thru booth, and the
declaration of an employee who chose to sit. Luckett testified the
cashier he observed was able to perform all his job duties.
Similarly, the four employees declared that despite being seated,
they were “able to successfully” complete their drive-thru cashier
duties.
This testimony is too broadly phrased, subjective, and
conclusory to create a disputed fact regarding all full-time
employees. (See Sinai Memorial Chapel v. Dudler, supra, 231
Cal.App.3d at pp. 196-197.) Moreover, because Luckett has not
presented competent evidence to dispute the fact that McDonald’s
relaxes its expectations for its accommodated workers, Luckett’s
testimony and the testimony of each of the three accommodated
employees is irrelevant to the question of whether seated, full-
duty drive-thru cashiers could perform all of their job duties,
including meeting the expectations of their employer relating to
speed, efficiency, or customer service. Further, neither Luckett
nor any of the declarants, including the employee who chose on
his own to sit while working in the drive-thru cash booth, are
competent to testify that from an ergonomics perspective, the
work could be performed from a seated position or to testify as to
legal conclusions, as the declarants attempt to do with
statements such as “the tasks associated with working as a
cashier and/or performing cashiering-related duties at the drive-
thru[ ] reasonably permitted the use of a seat.” (See Evid. Code,
§ 800 [“If a witness is not testifying as an expert, his testimony in
the form of an opinion is limited to such an opinion as is
permitted by law, including but not limited to an opinion that is:
[¶] . . . Rationally based on the perception of the witness”].)
35
The statements from the seven employee declarants that
“almost all the equipment needed to perform [their jobs] were
within reaching distance,” and that customers “normally”
position their cars close enough to the window so that any
reaching was “minimal” are similarly vague and conclusory.
These statements fail to contradict McDonald’s evidence—
including Luckett’s own testimony that he had to lean out of the
window to hear customers—demonstrating that drive-thru
cashiers must engage in some reaching and/or leaning out of the
window.
Luckett claims “[t]he trial court heavily relied on
[McDonald’s] expert testimony, and the fact that Luckett lacked a
counter expert,” and argues he was not required to produce such
an expert to create a triable issue.6 In support of his argument,
Luckett relies on Brown v. Wal-Mart Stores, Inc. (N.D. Cal.,
July 13, 2018, No. 09-cv-03339-EJD) 2018 WL 3417483, in which
the district court denied cross-motions for summary judgment
after finding the parties’ evidence (which included lay testimony)
created several triable issues, including with respect to whether a
suitable seat existed.
Luckett’s decision not to submit expert testimony is not the
problem; it is that the testimony Luckett did submit was not
competent evidence of a triable issue of fact. The facts of Brown
stand in stark contrast. The plaintiffs in Brown submitted
evidence that prior to the litigation, Wal-Mart had retained a
third-party expert consulting firm to determine the impact of seat
6 To be clear, the trial court’s ruling did not refer to
Luckett’s lack of a rebuttal expert or base its decision on any such
ground.
36
use by cashiers and had successfully identified a suitable stool for
cashiers’ use that took into account considerations of the
essential job functions to be performed by cashiers, the layout of
the checkout lane, and possible ergonomic issues resulting from
the use of the stool. (Brown v. Wal-Mart Stores, Inc., supra, 2018
WL 3417483 at pp. *12, *14.) The plaintiffs also submitted the
deposition testimony from two Wal-Mart deponents admitting
that the company had determined that cashiers could safely use a
stool during the performance of their job duties, that the presence
of an approved stool did not create safety hazards for cashiers,
and that use of a stool would likely decrease accidents. (Ibid.)
Here, Luckett does not offer similar evidence but instead vague
and conclusory statements, and none from individuals qualified
to speak on behalf of McDonald’s.
b. Feasibility
We next balance the above task-based assessment against
the record evidence pertaining to considerations of feasibility.
Feasibility may include considerations of whether providing a
seat would unduly interfere with other standing tasks, whether
the frequency of transition from sitting to standing may interfere
with the work, or whether seated work would impact the quality
and effectiveness of overall job performance. This inquiry may
include consideration of the physical layout of the booth and the
employer’s business judgment. (Kilby, supra, 63 Cal.4th at pp.
19-20.)
(i) The Physical Layout of the Booth Makes Use of
a Seat Therein Unworkable
“[T]he physical layout of a workspace may be relevant in
the totality of the circumstances inquiry.” (Kilby, supra, 63
Cal.4th at p. 22.) However, “an employer may not unreasonably
37
design a workspace to further a preference for standing or to
deny a seat that might otherwise be reasonably suited for the
contemplated tasks.” (Ibid.) Although “ ‘facts regarding
technical aspects of workplace configurations or studies may be
relevant to determining whether suitable seating can be
provided, the application of the standard is essentially one of
overall reasonableness applied to the particular facts.’ ” (Ibid.)
“Evidence that seats are used to perform similar tasks under
other, similar workspace conditions may be relevant to the
inquiry, and to whether the physical layout may reasonably be
changed to accommodate a seat. . . . [R]easonableness must be
based on the particular circumstances.” (Ibid.)
McDonald’s offered evidence that XXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXX. Indeed, Cramer confirmed the drive-thru cash booths
were designed for standing work. XXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXX
Luckett does not present evidence to dispute that the
booths were designed for standing work. Instead, Luckett argues
38
a seat can fit within the cash booth because accommodated
employees have used seats in that space. Whether a seat can fit,
however, is not the same as whether it is ergonomically sound to
do so. Luckett points out that there are no reports of anyone
tripping as a result of a chair placed in the drive-thru booth for
any of the accommodated employees. As discussed above,
however, the experiences of accommodated employees, for whom
McDonald’s modified its expectations, are not an appropriate
source of data from which to extrapolate what may occur if seats
were regularly provided to full duty drive-thru cash booth
employees. Indeed, that no one has tripped yet does not
contradict XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXX.
Luckett also does not present competent evidence to
dispute Dr. Fernandez’s conclusion XXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. Instead,
Luckett argues the proper question is whether “adding a seat to
the cash booth would aid an employee’s health or harm it.” In
this regard, Luckett points to Dr. Fernandez’s XXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
39
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXX.
Luckett also cites the employee declarants’ testimony that
standing at the cash booth caused them pain and discomfort. But
Luckett does not provide evidence that this pain or discomfort
rose to the level of a chronic condition or musculoskeletal
disorder or that sitting would be the only solution to address that
pain or discomfort. In fact, in questioning Dr. Fernandez,
Luckett’s counsel noted XXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXX.
Luckett also seeks to undermine Dr. Fernandez’s
conclusions that XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXX. (See General Elec. Co. v. Joiner (1997) 522 U.S. 136,
146 [118 S.Ct. 512, 139 L.Ed.2d 508] [“Trained experts commonly
extrapolate from existing data”]; In re NJOY, Inc. Consumer
Class Action Litigation (C.D. Cal. 2015) 120 F. Supp.3d 1050,
1071 [ruling that an expert’s failure to perform a survey or study
“does not automatically render his opinion or methodology
unreliable” because experts may instead rely on published
40
studies addressing analogous issues].) For example, Dr.
Fernandez’s report XXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX.
(ii) Interference with Cashiering Duty of Providing
Fast and Efficient Customer Service, and
Business Judgment
Generally speaking, “There is no question that an employer
may define the duties to be performed by an employee.” (Kilby,
supra, 63 Cal.4th at p. 21.) “ ‘[A]n employer’s business judgment
largely determines the nature of work of the employee both
generally, as well as duties or tasks specifically.’ ” (Ibid.) “[S]uch
duties are not limited to physical tasks. Providing a certain level
of customer service is an objective job duty that an employer may
reasonably expect. An employee’s duty to provide a certain level
of customer service should be assessed, along with other relevant
tasks and obligations, in determining whether the nature of the
work reasonably permits use of a seat at a particular location.
Providing customer service is an objective job function comprised
of different tasks, e.g., assisting customers with purchases,
answering questions, locating inventory, creating a welcoming
environment, etc. [¶] However, ‘business judgment’ in this sense
does not encompass an employer’s mere preference that particular
tasks be performed while standing. The standard is an objective
one.” (Ibid.)
Here, McDonald’s demonstrated that its original decision to
have its drive-thru cashiers stand was not based on mere
preference. Rather, Cramer declared considerations for an
41
efficient and ergonomically sound workspace drove the design of
the cash booth. Further, McDonald’s presented evidence that the
introduction of a seat into the drive-thru cash booth would
interfere with the cashier’s duty of providing fast and efficient
customer service, XXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXX. Specifically, McDonald’s presented evidence XXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXX. Indeed, Luckett acknowledged that when
transactions take too long, customers will leave the drive-thru
line, and XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXX.
McDonald’s also established through Dr. Fernandez’s
report that XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXX.
Luckett argues he presented sufficient evidence to create a
triable issue as to whether providing a seat to a drive-thru
cashier affects the level of customer service provided.
Specifically, Luckett points to his observation of the
accommodated employee and the statements from the declarants
who used a seat that they were able to perform their job duties.
He further points to statements from the four employee
declarants who used a chair that they were never informed of any
complaints relating to delays or customer service. However,
these statements are merely subjective, anecdotal, and
42
situational evidence that do not create a genuine dispute of
McDonald’s evidence, especially considering that for three of
these declarants, McDonald’s relaxed its performance
expectations. Further, the employee declarants’ subjective and
conclusory statement that the increase in transaction time based
upon transitioning from sitting to standing would be “minimal”
fails to create a genuine issue of material fact, XXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXX.
Luckett also argues that McDonald’s PMK, Sabbagh,
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXX. Luckett does not explain the import of this
observation. Nevertheless, it does not create a triable issue.
Although Sabbagh, who was deposed on January 14, 2021,
testified XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX Luckett’s counsel
deposed Sabbagh approximately one month before Dr. Fernandez
issued his February 12, 2021 report. That report provided a
critical linkXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXX.
Accordingly, Luckett has not demonstrated a genuine issue
of material fact as to whether it is feasible to place a seat in the
drive-thru cash booths. A totality of the circumstances inquiry
often requires the weighing of several facts and factors.
43
However, because none of the relevant factors here support a
ruling in favor of Luckett, the party opposing summary
judgment, we conclude that summary judgment was proper.
D. There Is No Triable Issue of Fact Regarding a
Suitable Seat
“An employer seeking to be excused from the [suitable
seating] requirement bears the burden of showing compliance is
infeasible because no suitable seating exists.” (Kilby, supra, 63
Cal.4th at p. 24.) “Suitable seating must mean safe seating.”
(Garvey v. Kmart Corp. (N.D. Cal., Dec. 18, 2012, No. C 11-02575
WHA) 2012 WL 6599534 at p. *9.)
McDonald’s argues that no suitable seat exists. Dr.
Fernandez XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
44
Luckett again points to McDonald’s accommodation policy
and practices, and the employee declarations expressing their
beliefs that various types of seats could fit inside the cash booth
and that all job functions could be performed seated. This
evidence does not create a genuine dispute as to whether a
suitable seat exists. The use of a chair on a temporary basis as
an accommodation does not mean it is a “suitable seat” to be used
without an accommodation when the employee is performing
their unmodified job duties. The fact that a seat can be used as
an accommodation if changes are made to the employee’s job
duties and performance expectations is irrelevant to the question
whether there is a suitable seat that is safe for employees during
the regular course of business. As for the declarations, subjective
and conclusory expressions of belief that a generic chair could be
used in the cash booth do not rebut Dr. Fernandez’s expert
analysis XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX.
Luckett also challenges Dr. Fernandez’s XXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXX.
Thus, we conclude Luckett did not raise a genuine issue of
material fact as to whether suitable seating exists.
45
DISPOSITION
The judgment is affirmed. McDonald’s is awarded its costs
on appeal.
NOT TO BE PUBLISHED
WEINGART, J.
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
46