Felipe Alvarez v. Yrc Inc.

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 2 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FELIPE ALVAREZ, on behalf of himself No. 20-56350
and others similarly situated,
D.C. Nos.
Plaintiff-Appellant, 2:12-cv-01374-TJH-E
2:16-cv-06173-TJH-E
and
JERALD SHROEDER, MEMORANDUM*
Plaintiff,
v.
YRC INC., DBA YRC Freight; YRC
WORLDWIDE INC.; YELLOW
ROADWAY CORPORATION,
Defendants-Appellees.
JERALD SCHROEDER, on behalf of No. 21-55042
himself and others similarly situated,
D.C. No.
Plaintiff-Appellant, 2:12-cv-01374-TJH-E
v.
YRC INC., DBA YRC Freight; YRC
WORLDWIDE INC.; YELLOW
ROADWAY CORPORATION,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Defendants-Appellees.
JERALD SHROEDER, on behalf of himself No. 21-55045
and others similarly situated,
D.C. No.
Plaintiff-Appellant, 2:16-cv-06173-TJH-E
v.
YRC INC., DBA YRC Freight; YRC
WORLDWIDE INC.; YELLOW
ROADWAY CORPORATION,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Terry J. Hatter, Jr., District Judge, Presiding
Argued and Submitted March 11, 2022
Pasadena, California
Before: IKUTA, LEE, and FORREST, Circuit Judges.
Partial Concurrence and Partial Dissent by Judge FORREST
Appellants Felipe Alvarez and Jerald Schroeder appeal the district court’s
summary judgment in favor of their former employer, YRC Inc. We have
jurisdiction under 28 U.S.C. § 1291 and review de novo. Parth v. Pomona Valley
Hosp. Med. Ctr., 630 F.3d 794, 798 (9th Cir. 2010). We affirm.
1. The Labor Management Relations Act (LMRA) does not preempt
Appellants’ second meal break claim. Section 301 of the LMRA preempts only
“claims founded directly on rights created by collective-bargaining agreements, and
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also claims substantially dependent on analysis of a collective-bargaining
agreement.” Cramer v. Consol. Freightways, Inc., 255 F.3d 683, 689 (9th Cir. 2001)
(en banc) (internal quotation marks and citation omitted). Further, we resolve “any
doubts concerning the scope of issues to be referred to arbitration in favor of
arbitration.” Columbia Exp. Terminal, LLC v. Int’l Longshore & Warehouse Union,
23 F.4th 836, 847 (9th Cir. 2022).
But here, the second meal break claim is not dependent on an analysis of the
CBA. The claim is that YRC failed to have a policy that on its face provided
employees a second meal break for certain shifts. The CBA, however, states that no
employee shall be compelled to take more than one meal break. The claim is not
substantially dependent on analyzing the CBA because the claim relates to YRC
providing a break, while the CBA addresses employees not being compelled to take
that break. And California law already gives employees the right to forego breaks
provided by an employer. See Brinker Rest. Corp. v. Superior Ct., 53 Cal. 4th 1004,
1040–41 (Cal. 2012).
2. There is no genuine dispute of material fact that YRC’s meal break
policies were lawful. In Brinker, the California Supreme Court held that an
employer satisfies its obligation to provide meal breaks when it “relieves its
employees of all duty, relinquishes control over their activities and permits them a
reasonable opportunity to take an uninterrupted . . . break, and does not impede or
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discourage them from doing so.” Id. at 1040. Appellants present no evidence that
YRC’s policies facially violate these obligations. They have repeatedly asserted that
YRC has an affirmative duty to provide second meal breaks, but no such duty exists.
See id.Appellants also waived their alternative theory of the “unrecorded meal break
presumption.” See Donohue v. AMN Servs., LLC, 11 Cal. 5th 58, 75–77 (Cal. 2021)
(explaining the unrecorded meal break presumption). Issues not raised before the
district court are normally deemed waived. United States v. Flores-Montano, 424
F.3d 1044, 1047 (9th Cir. 2005). Appellants repeatedly asserted before the district
court that their theory of liability was that YRC’s policies, on their face, failed to
provide for a second meal break. In their motion for class certification and their trial
plan, they argued that YRC’s second meal break policies were facially invalid, and
thus that liability turned on the “uniform lawfulness or – unlawful absence – of
Defendants’ meal and/or rest period policies.”
In certifying the class, the district court found predominance because the
challenge was to YRC’s policies “on their face” rather than as applied. Although
Appellants briefly cited Justice Werdegar’s Brinker concurrence, their use of the
unrecorded second meal break data was supposedly “only offered to show that
damages can be calculated on a class-wide basis.” This is consistent with a litigation
strategy of trying to prove automatic liability across the class by attacking the policy,
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rather than individually inquiring into whether each shift without a recorded second
meal break was because of YRC’s meddling or by choice of the worker. Having
chosen to pursue that strategy distinct from the presumption, Appellants have waived
the presumption.
3. The remaining independent claims brought by Appellants were waived
or abandoned. In Schroeder’s supplemental briefing before the district court, he did
not construe the auto-deduct claim as one of his remaining claims, nor do Appellants
offer any evidence to support it. They also expressly abandoned their untimely first
meal break claim and the drivers’ rest break claim. Finally, Appellants waived the
third rest break claim and the overtime claim by failing to offer any argument on
those claims.
4. Because Appellants’ second meal break and auto-deduct claims fail,
their remaining derivative claims also fail.
AFFIRMED.
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FILED
Alvarez v. YRC Inc., 20-56350; Schroeder v. YRC Inc. 21-55042/21-55045 SEP 2 2022
FORREST, Circuit Judge, concurring in part and dissenting in part: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I agree with the majority except as to its conclusion that Defendant-Appellee
YRC, Inc. is entitled to summary judgment on Plaintiffs-Appellants’ second-meal-
break claim.
Under California law, YRC must provide its employees meal breaks. Brinker
Rest. Corp. v. Superior Ct., 273 P.3d 513, 536 (Cal. 2012). The California Labor
Code specifies that “employers must generally provide employees with one 30-
minute meal period that begins no later than the end of the fifth hour of work and
another 30-minute meal period that begins no later than the end of the tenth hour of
work.” Donohue v. AMN Servs., LLC, 481 P.3d 661, 663 (Cal. 2021) (discussing
CAL. LAB. CODE § 512(a)). Employers are “not required to police meal periods to
make sure no work is performed,” id. at 675, but where their “records show no meal
period” when one was required, “a rebuttable presumption arises that the employee
was not relieved of duty and no meal period was provided,” id. at 672.
The central question for Appellants’ second-meal-break claim is whether a
policy that is silent—i.e., does not inform employees of their right to take a second
meal break—impedes their ability to take this break. Appellants’ theory is that
employees do not know that they have a right to take a second meal break unless
informed by YRC, and they argued to the district court at class certification and
summary judgment that evidence showing a uniform lack of recorded second meal
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breaks on employee timecards supports their assertion that YRC’s silent policy is
facially invalid. To be precise, Appellants offered the unrecorded meal-break data
(that 99.9% of eligible shifts did not record a second meal break) as evidence that a
silent policy prevents employees from knowing about—and therefore having a
reasonable opportunity to take—a second meal break. Therefore, I conclude that
Appellants did not waive their ability to assert the unrecorded-meal-break
presumption.
This presumption does not create “‘automatic liability’ for employers”; it
shifts “the burden [to] the employer to plead and prove, as an affirmative defense,
that it genuinely relieved employees from duty during meal periods.” Id. at 674.
Here, it is not clear that rebutting this presumption would necessarily involve
individualized inquiry into employees’ shift records because YRC may be able to
present evidence that it had some form of policy or uniform practice of informing
employees about their right to second meal breaks despite the silent Collective
Bargaining Agreements and Employee Handbook. Indeed, YRC argues that it
provided sufficient notice about second meal breaks by posting the Wage Order
describing the right to these breaks at worksites and not interfering with employees
taking these breaks.1 Appellants counter that a material factual dispute exists as to
YRC cites several unpublished or non-binding cases for the proposition that
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undisputed evidence of employers posting the California Wage Order at their
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whether YRC posted the Wage Order at each of its locations. I agree with Appellants
that whether YRC can rebut the unrecorded-meal-break presumption is a factual
matter that precludes summary judgment. Accordingly, I would reverse and remand
the second-meal-break claim, as well as the related derivative claims, for the district
court to fully consider them in the first instance.
worksites alone satisfies the employer’s obligation to provide meal breaks. None of
these cases involved unrecorded-meal-break evidence, and only one included an
allegation that the employer failed to provide a break by adopting a policy that was
silent about the timing of breaks. See Cole v. CRST Van Expedited, Inc., 842 F.
App’x 162, 162–63 (9th Cir. 2021); Perez v. Performance Food Grp., Inc., No. LA
CV17-00357 JAK (SKx), 2017 WL 6940526, at *7 (C.D. Cal. Dec. 15, 2017);
Antemate v. Estenson Logistics, LLC, CV 14-5255 DSF (RAOx), 2019 WL 4670670,
at *1, *5 (C.D. Cal. Sept. 25, 2019); Ontiveros v. Safelite Fulfillment, Inc., No. CV
15-7118-DMG (RAOx), 2017 WL 6261476, at *5 (C.D. Cal. Oct. 12, 2017); Perez
v. Safety-Kleen Sys., Inc., 253 F.R.D. 508, 515 (N.D. Cal. 2008).
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