Ramirez v. The Geo Group, Inc. ( 2019 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 RAYMOND RAMIREZ, et al., CASE NO. 18cv2136-LAB (MSB) 10 Plaintiffs, 11 ORDER GRANTING IN PART AND vs. DENYING IN PART PLAINTIFF’S 12 MOTION FOR CLASS CERTIFICATION THE GEO GROUP, et al., [Dkt. 50]; 13 Defendants. 14 ORDER GRANTING JOINT MOTIONS TO SEAL [Dkts. 48, 84] 15 16 17 Currently before the Court is Plaintiff Raymond Ramirez’s Motion for Class 18 Certification. For the reasons below, that motion is granted in part and denied in part. 19 BACKGROUND 20 Defendant GEO Group and its subsidiaries own and operate private prisons 21 throughout the United States. From 2000 until 2017, Plaintiff Raymond Ramirez served 22 as a corrections officer at the Western Region Detention Facility (“the Facility”) in San 23 Diego. The Facility is owned by GEO Group subsidiary GEO Corrections and Detentions, 24 LLC (collectively, “GEO”) and houses between 700 and 770 federal detainees awaiting 25 trial, sentencing, or a hearing. At issue in this case are Ramirez’s allegations that GEO 26 violated various provisions of California labor law by, among other things, failing to 27 provide adequate meal and rest breaks, failing to reimburse employees for job-related 28 expenses, and improperly rounding employee time. 1 Based on these and other alleged violations of California law, Ramirez brought this 2 suit in San Diego County Superior Court in August 2018. GEO timely removed the case 3 to this Court, and Ramirez now seeks class certification. Ramirez originally purported to 4 represent all correctional officers employed by GEO in California, but now limits the 5 putative class to only those correctional officers employed by GEO at the San Diego 6 Facility from August 9, 2014 to present. GEO opposes Ramirez’s motion, arguing that its 7 policies do not violate California law and that Ramirez cannot meet the requirements for 8 class certification. 9 LEGAL STANDARD 10 a. Class Certification Generally 11 “A party seeking class certification must satisfy the requirements of Fed. R. Civ. P. 12 23(a) and the requirements of at least one of the categories under Rule 23(b).” Wang v. 13 Chinese Daily News, 737 F.3d 538, 542 (9th Cir. 2013). 14 The four requirements of Rule 23(a) are: 15 (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common 16 to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and 17 (4) the representative parties will fairly and adequately protect 18 t he interests of the class. 19 These are commonly referred to as the numerosity, commonality, typicality, and 20 adequacy requirements. The Court must perform “a rigorous analysis [to ensure] that the 21 prerequisites of Rule 23(a) have been satisfied.” Wal-Mart Stores v. Dukes, 564 U.S. 22 338, 345 (2011). Ramirez seeks certification under Rule 23(b)(3), which contains two 23 additional requirements: (1) that common questions predominate over individualized ones 24 and (2) that a class action is the superior mechanism for dispute resolution. 25 “In determining the propriety of a class action, the question is not whether the 26 plaintiff has stated a cause of action or will prevail on the merits, but rather whether the 27 requirements of Rule 23 are met.” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 28 1 (1974). The Court considers the merits of the underlying claims to the extent they overlap 2 with the Rule 23(a) analysis, but it does not determine whether Ramirez actually could 3 prevail on those claims. See Ellis v. Costco Wholesale Corp., 657 F.3d 970, 983 n.8 (9th 4 Cir. 2011). 5 The Court must generally accept the substantive allegations made in the complaint 6 as true, but it must also consider the nature and range of proof necessary to establish 7 those allegations. See In re Petroleum Prods. Antitrust Litig., 691 F.2d 1335, 1342 (9th 8 Cir. 1982). “In addition, the court may consider supplemental evidentiary submissions of 9 the parties.” Keilholtz v. Lennox Hearth Products Inc., 268 F.R.D. 330, 335 (N.D. Cal. 10 2010). “Neither the possibility that a plaintiff will be unable to prove his allegations, nor 11 the possibility that the later course of the suit might unforeseeably prove the original 12 decision to certify the class wrong, is a basis for declining to certify a class which 13 apparently satisfies Rule 23.” United Steel, Paper & Forestry v. ConocoPhillips Co., 593 14 F.3d 802, 809 (9th Cir. 2010) (citation and brackets omitted). 15 b. Rule 23(a) 16 Commonality requires that there be questions of law or fact common to the class. 17 Fed. R. Civ. P. 23(a)(2). “What matters to class certification is not the raising of common 18 questions . . . but rather the capacity of a classwide proceeding to generate common 19 answers apt to drive the resolution of the litigation.” Dukes, 564 U.S. at 350. The 20 commonality requirement is construed permissively, and indeed less rigorously than the 21 predominance requirement of Rule 23(b)(3). “All questions of fact and law need not be 22 common to satisfy the rule.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 23 1998). One “significant question of law or fact” common to the class may be sufficient to 24 warrant certification. Abdullah v. U.S. Sec. Associates, Inc., 731 F.3d 952, 957 (9th Cir. 25 2013) (quoting Mazza v. Am. Honda Motor Co., 666 F.3d 581, 589 (9th Cir. 2012)). 26 Typicality under Rule 23(a)(3) requires that the claims or defenses of the 27 representative parties be typical of the claims or defenses of the class. 28 Fed. R. Civ. P. 23(a)(3). The representative claims don’t need to be “substantially 1 identical” to those of absent class members, just “reasonably coextensive.” Hanlon, 150 2 F.3d at 1020. 3 Rule 23(a)(4) permits certification of a class only if the “representative parties will 4 fairly and adequately protect the interests of the class.” This factor requires that the lead 5 plaintiff not have conflicts of interest with the proposed class, and that the lead plaintiff is 6 represented by qualified and competent counsel who will vigorously prosecute the action 7 on behalf of the class. Hanlon, 150 F.3d at 1020. 8 c. Rule 23(b) 9 In addition to establishing commonality, Ramirez must still prove that common 10 questions of law or fact predominate over questions affecting only individual class 11 members. Fed. R. Civ. P. 23(b)(3). The predominance inquiry tests whether proposed 12 classes are sufficiently cohesive to warrant adjudication by representation. Amchem 13 Prods., Inc. v. Windsor, 521 U.S. 591, 623 (1997). “When common questions present a 14 significant aspect of the case and they can be resolved for all members of the class in a 15 single adjudication, there is clear justification for handling the dispute on a representative 16 rather than on an individual basis.” Hanlon, 150 F.3d at 1022 (quotation omitted). 17 Superiority requires consideration of four factors. See Zinser v. Accufix Research 18 Inst., Inc., 253 F.3d 1180, 1190 (9th Cir. 2001). They are: 19 (A) the class members' interests in individually controlling the prosecution or defense of separate actions; 20 (B) the extent and nature of any litigation concerning the 21 controversy already begun by or against class members; 22 (C) the desirability or undesirability of concentrating the 23 litigation of the claims in the particular forum; and 24 25 (D) the likely difficulties in managing a class action. 26 Fed. R. Civ. P. 23(b)(3). When analyzing these factors, the Court must “focus on the 27 efficiency and economy elements of the class action so that cases allowed under 28 1 subdivision (b)(3) are those that can be adjudicated most profitably on a representative 2 basis.” Zinser, 253 F.3d at 1190 (internal quotations and citations omitted). 3 PRELIMINARY MATTERS 4 a. Motion to Seal 5 As part of their briefing, the parties jointly move to have certain documents related 6 to GEO’s policies, procedures, and schedules file under seal. According to the parties, 7 because GEO operates a detention facility, its policies and procedures are “significantly 8 more sensitive than [those of] a typical corporation, because such documents directly 9 impact the safety and privacy of detainees and officers.” Joint Briefing in Support of 10 Motion to Seal, Dkt. 70, at 1. Specifically, these documents contain policies related to 11 weapon locations, officer schedules and movements, officer training, security protocols, 12 emergency response policies, entrance and exit controls, and transfers of detention 13 facility keys. Id. The parties argue that public access to these documents could 14 compromise the safety of employees and detainees and therefore should be kept under 15 seal. 16 Although there is a federal common law right to access public court records, that 17 right is not absolute. See Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978). 18 Courts in the Ninth Circuit evaluate requests to seal under different standards depending 19 on the nature of the underlying motion. For records attached to dispositive motions, the 20 moving party must demonstrate a “compelling reason” to keep documents under seal. 21 See Kamakana v. City & Cty. Of Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006). For 22 records attached to non-dispositive motions, “‘a good cause’ showing . . . will suffice.” Id. 23 at 1180. Unless the denial of a motion for class certification would constitute the death 24 knell of a case, “the vast majority of courts within this circuit” treat motions for class 25 certification as non-dispositive motions to which the “good cause” sealing standard 26 applies. Dugan v. Lloyds TSB Bank, PLC, 2013 WL 1435223, *1 (N.D. Cal. 2013). 27 28 1 Denial of class certification would not constitute the “death knell” of this action. 2 This is not a situation in which the individual plaintiffs have suffered de minimis harm. As 3 GEO acknowledged when it removed this case from state court, Ramirez’s individual 4 claims alone exceed $145,000. See Notice of Removal, Dkt. 1, at 21. Given the amount 5 at stake, he would presumably have financial incentive to pursue individual litigation even 6 if he could not do so on behalf of a class. The Court therefore finds the underlying motion 7 for class certification non-dispositive, and documents attached to it must only meet the 8 “good cause” standard to be filed under seal. 9 The parties have demonstrated “good cause” here. If made public, the documents 10 at issue could jeopardize the safety of employees and detainees at the Facility. The 11 documents reveal when detention officers go on break, what equipment and weapons 12 particular officers carry, when and how detainee counts are conducted, the location of 13 keys, and how officers are expected to respond to certain emergency situations. Limiting 14 the spread of this information is important to protect both employees and detainees from 15 harm. The Court therefore finds the “good cause” standard met and GRANTS the parties’ 16 Motions to File Documents under Seal. Dkts. 48, 84. The documents conditionally lodged 17 under seal in Docket Entries 49 and 85 are ordered SEALED pending further order of the 18 Court. 19 b. Evidentiary Objections 20 Ramirez and GEO have both lodged evidentiary objections. GEO objects to 21 various portions of Ramirez’s declaration as inadmissible opinion testimony. See Dkt. 22 71-5. It also objects to evidence submitted for the first time in Ramirez’s reply brief. See 23 Dkt. 88-1. 24 As to the evidence submitted for the first time in reply, GEO’s objection is 25 OVERRULED because the Court specifically permitted GEO to file a sur-reply to address 26 this newly introduced evidence. See Dkt. 87. GEO’s remaining objections are also 27 OVERRULED because a motion for certification is a preliminary procedure and courts 28 don’t require strict adherence to the Federal Rules of Evidence. See Dominguez v. 1 Schwarzenegger, 270 F.R.D. 477, 483 n.5 (N.D. Cal. 2010) (“[E]vidence presented in 2 support of class certification need not be admissible at trial.”) 3 c. Judicial Notice 4 GEO requests that the Court take judicial notice of various trial court documents 5 from Weldon v. GEO Corrections and Detention, LLC, Case No. BCV-16-102833 (Kern 6 Cty. Sup. Ct. 2016) in support of its opposition to the motion for class certification. Dkt. 7 71-5. GEO’s request is GRANTED and the Court will take judicial notice of those 8 documents to the extent they are relevant. 9 DISCUSSION 10 Ramirez seeks to certify one class and two subclasses: 11 Class: All current and former employees who worked as a Correctional Officer or Assistant Shift Supervisor at GEO’s 12 Western Region Detention Facility from August 9, 2014 to present. 13 14 Ten Hour Shift Subclass: All Class Members who worked a shift of ten hours or more without receiving a second 30 15 minute duty-free meal break. 16 Waiting Time Penalty Subclass: All Class Members who 17 separated from their employment with GEO between 18 A ugust 9, 2014 to the present. 19 Motion for Class Certification (“Motion”), Dkt. 50, at 2-3. 20 GEO’s opposition focuses primarily on what it sees as Ramirez’s inability to show 21 commonality (and the related requirement of predominance). But GEO also argues that 22 even if there are common questions, Ramirez’s claims are not typical and that he is an 23 inadequate representative. The Court will address each requirement of Rule 23 in turn, 24 with a focus on commonality. 25 a. Numerosity and Superiority 26 The parties largely agree that the numerosity and superiority requirements are met 27 here. As to numerosity, there are “at least 60 Correctional Officers and Assistant Shift 28 Supervisors” who are members of the putative class, which the parties agree meets the 1 requirement of Rule 23(a)(1). Motion at 7. As to superiority, the parties have submitted 2 no evidence of other pending litigation that would render a class action an inferior method 3 for adjudicating these claims. The Court finds these two requirements are satisfied. 4 b. Commonality and Predominance 5 Commonality is the heart of this motion for class certification. Ramirez submits 6 that there are seven separate common questions that could form the basis for a class1: 7 1. Whether GEO must compensate class members for the time spent passing through security checks; 8 2. Whether GEO’s policy denies employees a reasonable opportunity to take compliant meal breaks; 9 3. Whether GEO provided second meal breaks; 10 4. Whether GEO authorized and permitted off-duty rest breaks; 11 5. Whether GEO’s rounding policy resulted in a systematic underpayment of employees; 12 6. Whether GEO was obligated to reimburse class 13 members for duty belts; and 14 7. W hether GEO issued accurate wage statements. 15 Although many of the issues bleed together in the parties’ briefing, Ramirez’s proposed 16 common issues break down into three basic categories: (1) Questions 1-4, which are that 17 GEO provided insufficient meal and rest breaks for its employees (“Rest Break 18 Violations”), (2) Questions 5 and 7, which are that GEO’s recordkeeping and pay 19 statements were inadequate as a matter of law (“Recordkeeping Violations”); and (3) 20 Question 6, which is whether GEO failed to reimburse employees for the purchase of duty 21 belts (“Reimbursement Violations”). The Court finds neither the Rest Break Violations 22 nor the Reimbursement Violations can form the basis for a class action because individual 23 questions predominate. The Recordkeeping Violations, however, are amenable to class- 24 wide adjudication. 25 1 Ramirez actually lists two other questions: (1) whether GEO violated California’s Unfair 26 Competition Law and (2) whether GEO failed to pay all wages due upon termination of employment. These two questions rise and fall with the other claims, so they are not 27 addressed specifically in this opinion. These class claims survive to the extent their 28 predicate claims do. 1 i. Meal and Rest Break Violations 2 Ramirez’s primary contention in this suit is that GEO for years maintained meal 3 and rest break policies that violated California labor law, which generally requires that 4 employees be “relieve[d] . . . of all duty” during breaks. Brinker Rest. Corp. v. Superior 5 Court, 53 Cal. 4th 1004, 1040 (2012) (citing Cal. Lab. Code § 226.7). GEO did this in 6 several ways. First, Ramirez claims, if employees chose to take their lunch breaks inside 7 the Facility, GEO required that they “quickly be recalled to duty” in the event of an 8 emergency. See Plaintiff’s Supplemental Appendix (“SPA”) at 383. This meant that 9 employees were always subject to recall and were therefore denied truly duty-free meal 10 and rest breaks. That officers were required to keep their radios on “at all times” in order 11 to respond to emergencies also implied that they were not truly relieved of duty during 12 breaks. See, e.g., Plaintiff’s Appendix (“PA”) at 122. 13 Second, employees who elected to leave the Facility for their lunch breaks did not 14 receive the full thirty minutes required by California law because GEO did not account for 15 time spent going through security. GEO instructed employees who left during their shift 16 to “be mindful of entrance procedure requirements and plan their schedule accordingly.” 17 See PA at 96. Ramirez argues that whether time spent in these security lines is “hours 18 worked” under California law is a common question that can be answered for the class 19 as a whole. If the answer is yes, GEO not only violated the law by failing to pay wages 20 for all hours worked, it also failed to provide compliant 30-minute meal breaks. 21 In response, GEO argues that there is no evidence any of its policies violated 22 California law and that, in any event, individual questions of liability predominate over 23 common ones. It argues, for example, that Ramirez’s “security time” claim fails because 24 GEO’s “practice is to provide Officers up to 37 minutes for meal periods, . . . 7 minutes 25 more than required by law.” See Opposition, Dkt. 71, at 13. This extra seven minutes 26 more than covered the “seconds” it took employees to be waived through security. Id. 27 As to Ramirez’s “emergency response” argument, Geo submits that it has a blanket policy 28 prohibiting “any work activity while on break” which supersedes any other policy 1 addressing call-ups during an emergency. According to GEO, the emergency call-up 2 procedures that Ramirez identifies apply only to off-duty officers—that is, officers not 3 scheduled to work who might be asked to come in to help with an emergency—not to on- 4 duty officers who are simply on break. Finally, GEO also notes that Ramirez himself 5 admitted during his deposition that employees were specifically instructed to turn their 6 radios off during breaks, which precludes any finding that these employees were on duty. 7 See Ly Decl., Dkt. 71-4, Ex. 2 at 30:11-14 (“[Q: Y]ou understood from the briefing that 8 radios were supposed to be off in the break room, correct? A: Correct.”). 9 As this Court has recognized in previous cases, a plaintiff attempting to prove 10 commonality must show their employer “violated California law not just on paper, but also 11 in practice and in a consistent way that would permit classwide adjudication.” Towle v. 12 Cummins Pac., LLC, 2018 WL 5785337, at *6 (S.D. Cal. 2018); see also Cortes v. Mkt. 13 Connect Grp., Inc., 2015 WL 5772857, at *7 (S.D. Cal. 2015) (Where “there is no good 14 evidence showing the entire class was subject to the same non-compliant practice, . . . 15 there is . . . no question common to the class.”). Here there’s no evidence that that the 16 allegedly unlawful meal and rest break policies have been applied in a way that would 17 permit common resolution. As discussed above, Ramirez has submitted a policy (the 18 emergency procedures policy) that he alleges violates California law by requiring off-duty 19 employees to remain on duty for emergency purposes while on break. But even assuming 20 that this emergency policy superseded the more general GEO policy that employees be 21 relieved of all duty during meal and rest breaks, Ramirez has submitted no evidence that 22 any employee was ever denied a break under that policy. Indeed, Ramirez was not aware 23 of GEO’s emergency procedures during his employment at GEO and could not recall 24 anyone ever being denied a full rest break as a result of those procedures. Finding a 25 violation would not be possible on a class-wide basis; it would require testimony from 26 each officer regarding whether they believed GEO’s plans required them to monitor radios 27 during breaks and whether they had, in fact, missed breaks due to GEO’s emergency 28 1 policy. This type of individualized inquiry is precisely what the Rule 23 requirements are 2 designed to avoid. 3 Ramirez’s “security time” argument fares no better. Even if the Court were to 4 ignore GEO’s evidence that (1) it allowed employees 37-minute breaks to account for 5 security times, and (2) employees spent no time at security because they were simply 6 waived through the scanners, Ramirez still hasn’t met his burden of showing that the 7 “security time” question could be resolved through common proof. As GEO points out, 8 its records do not reflect whether a given break was taken inside or outside the facility. 9 Determining the total number of breaks for the class that were cut short by a security 10 screening would require each officer to testify as to the number and location of breaks 11 they took. Further complicating things, some officers may have voluntarily taken breaks 12 less than 30 (or 37) minutes in length, which frustrates any effort to quantify damages on 13 a class-wide basis. As such, even if there was a common practice of shortening breaks 14 by requiring security screenings, there is no common way to prove that violation. See In 15 re Wells Fargo Home Mortg. Overtime Pay Litig., 571 F.3d 953, 958 (9th Cir. 2009) 16 (reversing a district court’s decision to certify a class action in part because of “‘serious 17 issues regarding individual variations’ that were not susceptible to common proof.”). 18 Finally, Ramirez argues that a class could be certified based on GEO’s failure to 19 provide a second meal break when its employees worked more than ten hours, in violation 20 of California law. See Cal. Lab. Code § 512(a) (“An employer shall not employ an 21 employee for a work period of more than 10 hours per day without providing the employee 22 with a second meal period of not less than 30 minutes, except that if the total hours 23 worked is no more than 12 hours, the second meal period may be waived by mutual 24 consent of the employer . . . .”). As support for this argument, Ramirez points to one 25 twelve-hour shift he worked on May 6, 2017 in which he did not take a second meal period 26 and was not paid a one-hour premium for missing the break. But this question cannot 27 form the basis for class certification because California law permits an employee to 28 voluntarily waive a second meal break, and GEO has produced three separate signed 1 waivers—including one from May 6, 2017—in which Ramirez acknowledges that he is 2 voluntarily foregoing his second meal period. See Londono Decl., Dkt 71-2, Ex. 4. 3 Because Ramirez concedes that GEO’s second-meal policy is lawful on its face, any 4 violation would have to be determined on a case-by-case basis, which precludes 5 certification on this issue. 6 ii. Recordkeeping Violations 7 While Ramirez’s Rest Break Violations may not amenable to class-wide 8 adjudication, his alleged Recordkeeping Violations fare better. The two violations in this 9 category—that GEO improperly rounded employee hours and that its pay stubs 10 improperly accounted for employee overtime—differ in substance, but they are unified by 11 the fact that each turns on GEO’s recordkeeping practices. Such issues are common to 12 the class and do not depend on individual determinations to find liability. 13 First, Ramirez alleges GEO’s time-keeping system systematically undercounted 14 the number of hours worked by rounding an employee’s time to the nearest quarter-hour. 15 According to Ramirez, employees were required to clock in early in order to arrive 16 promptly for their pre-shift meeting. But these same employees were not permitted to 17 clock out early because they had to wait for the next shift to relieve them. This resulted 18 in extended shifts that were often rounded down because of GEO’s time-keeping policies, 19 which Ramirez alleges violates California labor law. See Sali v. Corona Reg'l Med. Ctr., 20 909 F.3d 996, 1009 (9th Cir. 2018) (“A rounding-time policy is permissible under California 21 law if it is fair and neutral on its face and ‘it is used in such a manner that it will not result, 22 over a period of time, in failure to compensate the employees properly for all the time they 23 have actually worked.”) (citing See’s Candy Shops, Inc. v. Super. Ct., 210 Cal.App.4th 24 889, 895 (2012)). Whether this rounding scheme was appropriate under California law 25 is, according to Ramirez, a question common to the class. 26 Similarly, Ramirez alleges that GEO’s wage statements violate California Labor 27 Code section 226—which requires that pay stubs accurately state the number of hours 28 worked and the rate of pay—because they show the overtime hourly rate as 0.5 times the 1 regular hourly rate rather than 1.5 times the regular hourly rate. See, e.g., PA at 370. 2 This irregularity means that class members are required to add up their regular and 3 overtime rates to confirm that the totals are correct and that they have been paid properly. 4 Again, because all employees received similarly defective wage statements, whether the 5 statements were unlawful is, according to Ramirez, a common question. 6 The Court agrees that these are common issues that can be addressed on a class- 7 wide basis. GEO’s arguments to the contrary are unavailing. GEO argues, for example, 8 that the “rounding” issue cannot be litigated collectively because (1) there was no uniform 9 policy requiring employees to clock in early and (2) “shift briefings start at varying times 10 depending on the supervisor leading the briefing.” Opp. at 20. But whether GEO had 11 such a policy can easily be inferred from a combination of written policies and the time 12 records themselves. If it’s the case that most employees clocked in well before their shift 13 was scheduled to start—a determination that should be easy to make from GEO’s time 14 records—that would give rise to a strong inference that there was an implicit company- 15 wide policy requiring employees to arrive early. Calculating damages on this issue would 16 also be simple. All that’s required is calculating the amount of wages that should have 17 been paid in the absence of rounding and subtracting the amount that was paid with the 18 rounding scheme in place. A large disparity between those numbers would likewise 19 suggest that the rounding scheme was impermissible. 20 The alleged wage statement violations are also amenable to class-wide resolution. 21 These violations are present on each wage statement, and damages would be easily 22 calculable for the class as a whole. In Magadia v. Wal-Mart Assocs., Inc., 384 F. Supp. 23 3d 1058, 1072 (N.D. Cal. 2019), for example, the Court was able to calculate damages 24 related to improper wage statements by having an expert tally the number of statements 25 on which a violation was present. The expert then assessed a $50 or $100 “penalty” for 26 each violation—the amount called for by California Labor Code § 226(e)—depending on 27 whether it was the first violation or a subsequent violation. Finally, the expert summed all 28 1 the penalties to reach a total damages estimate. A similar method could be implemented 2 here to manage these claims on a class-wide basis.2 3 In short, the Court finds that these two narrow questions—whether GEO’s rounding 4 policy was permissible and whether GEO’s wage statements violated California law—are 5 common to the class.3 These common questions predominate over individual questions 6 and are therefore appropriate for class treatment. 7 iii. Reimbursement Violations 8 Ramirez’s final substantive claim is that GEO required its employees to purchase 9 duty belts but failed to properly reimburse employees for these purchases. See Cal. Lab. 10 Code § 2802 (“An employer shall indemnify his or her employee for all necessary 11 expenditures or losses incurred by the employee in direct consequence of the discharge 12 of his or her duties . . . .”). In his view, whether these belts were “necessary” equipment 13 for class members and whether GEO had any policy for reimbursing class members for 14 these purchases are common questions that permit certification. 15 But Ramirez has submitted no evidence that GEO’s duty-belt reimbursement 16 policy was applied uniformly to the class. Indeed, Ramirez admitted in his deposition that 17 GEO did not require duty belts for most employees, but simply “preferred” employees to 18 have one. See PA at 314. GEO has submitted its own evidence showing that only a 19 certain category of employees, those working in the Transport Officer Post, were required 20 to purchase duty belts. See Nelson Decl., Dkt. 71-1, at ¶ 20. The company provided 21 2 GEO argues that the wage statement violations cannot be certified for class-wide 22 adjudication because similar claims “will be released on a class-wide basis in Weldon v. 23 GEO Corrections and Detention, LLC through May 10, 2019.” Opp. at 23, n.13. Although the Court has taken judicial notice of certain documents related to the Weldon case, it 24 does not have a copy of the settlement terms, nor any evidence that these claims have been released. If the claims have been released (or are released after certification in this 25 case), GEO may move to have the wage statement claims here dismissed. 26 3 The Court rejects GEO’s argument that arbitration agreements between GEO and approximately seventeen class members precludes certification. Even if a small number 27 of employees signed agreements before this case was filed, these issues can be handled 28 at the claims-administration stage if those employees file claims. 1 belts to these officers at no cost. Id. But even setting aside the question of whether 2 GEO’s reimbursement policy was sufficient, the fact that only some of the class members 3 were required to purchase duty belts means that this question is not common to the class 4 and cannot form the basis for class certification. Further, there is no evidence that 5 Ramirez himself fell within the category of employees required to purchase a duty belt, 6 so he couldn’t serve as an adequate representative for those employees even if the Court 7 were inclined to form a sub-class. 8 c. Typicality and Adequacy 9 GEO submits that even if the commonality and predominance requirements are 10 satisfied, a class still shouldn’t be certified because (1) Ramirez’s claims are atypical and 11 (2) Ramirez could not adequately represent the interests of the class. The gist of GEO’s 12 argument is that there is an inherent conflict of interest between Assistant Supervisors 13 and the Corrections Officers4 they supervise, even though both categories of employees 14 fall within the proposed class. Assistant Supervisors are responsible for implementing 15 the company’s rest break policies, which the class as a whole now challenges. This 16 conflict, in GEO’s view, means that Ramirez’s claims are not typical of the class as a 17 whole and that his counsel cannot adequately represent all members of the class. To be 18 sure, other courts in the Ninth Circuit have recognized that dissimilarities like this may 19 render a plaintiff atypical or inadequate. See, e.g., Ellerd v. Cty. of Los Angeles, 2009 20 WL 982077, at *5 (C.D. Cal. 2009) (“In order to prove their claims, the social workers will 21 have to show that their supervisors violated federal law and defendant's official policies 22 by telling the social workers not to record their overtime. Given this inherent conflict, the 23 Court cannot conclude that plaintiffs' counsel can adequately represent both the social 24 workers and the supervisors.”). But the Court is not certifying the issue of whether GEO’s 25 meal and rest break policies were lawful. The issues for class-wide adjudication— 26 4 Ramirez was originally hired as a Corrections Officer. He was promoted to Assistant 27 Supervisor at the end of 2005 before being demoted to Corrections Officer again in 2016. 28 See Londono Decl. ¶¶ 4. 1 || whether GEO improperly rounded its employees’ time and whether its pay statements 2 || complied with California law—are common to both Corrections Officers and _ their 3 || Supervisors. The Court therefore finds the typicality and adequacy requirements met 4 || here. 5 CONCLUSION 6 For these reasons, the Court GRANTS IN PART AND DENIES IN PART 7 || Ramirez’s motion for class certification. Dkt. 50. The Court CERTIFIES one class and 8 || one sub-class as follows: 9 Class: All current and former employees who worked as a Correctional Officer or Assistant Shift Supervisor at GEO’s 10 Western Region Detention Facility from August 9, 2014 to 44 present. 12 Waiting Time Penalty Subclass: All Class Members who separated from their employment with GEO between August 13 9, 2014 to present. 14 || But the class claims are limited only to those common questions found above—namely, 15 || whether GEO improperly rounded employee time and whether GEO’s pay statements 16 || complied with California law. Related claims, such as whether GEO violated California’s 17 || Unfair Competition Law and whether GEO failed to pay all wages due upon termination 18 || of employment, may be litigated on behalf of the class only insofar as those claims are 19 || predicated on these two narrow issues. All other claims must be litigated on an individual 20 || basis. Plaintiff Raymond Ramirez shall serve as class representative, and his attorneys 21 || at the Patterson Law Group, APC shall serve as class counsel. 22 The parties’ Motions to Seal, (Dkts. 48, 84), are GRANTED, as is GEO’s Request 23 || for Judicial Notice. Dkt. 71-5. The parties’ various evidentiary objections are 24 || OVERRULED. 25 IT IS SO ORDERED. 26 || Dated: December 11, 2019 lau / Af. (Buywy 27 HONORABLE LARRY ALAN BURNS 28 Chief United States District Judge