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Candace Casida, Individually and On Behalf of All Others Similarly Situated v. Sears Holdings Corporation; and Sears

January 25, 2012

CANDACE CASIDA, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED
PLAINTIFF,
v.
SEARS HOLDINGS CORPORATION; AND SEARS, ROEBUCK & CO.
DEFENDANTS.



ORDER RE: MOTION TO DISMISS AND STRIKE OR FOR A MORE DEFINITE STATEMENT IN THE ALTERNATIVE (Docs. 81-81-2)

I. INTRODUCTION

Defendants Sears Holdings Corporation and Sears, Roebuck & Co. have filed a motion to dismiss and strike portions of the second amended complaint of plaintiff Candace Casida. For reasons discussed below, the motion shall be granted in part and denied in part.

II. FACTS AND PROCEDURAL BACKGROUND

On December 5, 2011, plaintiff Candace Casida, individually and on behalf of all others similarly situated (hereinafter referred to as "Plaintiff"), filed her second amended class action complaint (SAC) against defendants Sears Holdings Corporation and Sears, Roebuck & Co. (hereinafter referred to as "Defendants"), asserting five causes of action for (1) violation of California Labor Code for failure to pay overtime wages, (2) violation of California Labor Code for failure to pay all compensation due and owing at termination, (3) violation of California Labor Code for failure to provide itemized wage statements, (4) violation of California Business and Professions Code §§ 17200 et seq. and (5) violation of the Private Attorney General Act of 2004 (PAGA, California Labor Code §§ 2698 et seq.). The first through fourth causes of action were asserted against Defendants by Plaintiff in an individual capacity and on behalf of all others similarly situated; the fifth cause of action was asserted against Defendants by Plaintiff in an individual capacity and on a representative basis. In the general allegations section of the SAC, Plaintiff alleged as follows:

"8. Sears owns and operates approximately 900 'full-line' Sears-branded retail stores throughout the United States that sell apparel, home furnishings, hardware and electronics. [¶] 9. Sears employs multiple Assistant Managers in each of its full-line retail stores, and there is almost always more than one Assistant Manager on duty during business hours. At each store, Sears also employs retail associates who are compensated on an hourly basis and are eligible to earn overtime."

Plaintiff further alleged:

"Assistant Managers, while given some limited responsibilities in addition to those held by non-exempt associates, do not exercise independent judgment and discretion on matters of significance, do not perform work directly related to management policies or general business operations of Sears, do not manage the stores and departments in which they work, and do not have the authority to conduct management duties on a regular basis. Instead, Assistant Managers at Sears are primarily engaged in non-exempt work on a day-to-day basis. Such non-exempt work activities include merchandising, working the cash register, assisting customers with routine inquiries, stocking shelves, cleaning fixtures . . . . Assistant Managers are required to perform these tasks day-in and day-out and spend the majority of their working hours engaged in these non-exempt tasks."

Plaintiff further alleged:

"10. In order to ensure their assigned departments meet Sears corporate standards and are up to date with current products and promotions, Assistant Managers, who are not eligible for overtime pay, work long hours before the stores open and after the stores close performing non-exempt work such as setting up sales racks and appropriate signage for displays. Much of this non-exempt work is required to be performed by Assistant Managers because Sears maintains a company-wide policy and practice of strictly controlling labor costs, and in particular, the hours of work of retail associates in accordance with sales expectations. [¶] 11. The limited job responsibilities Assistant Managers are given in addition to those held by other non-exempt store employees, such as scheduling associates and interviewing prospective employees, are strictly prescribed by company policies and procedures. Nonetheless, these activities do not comprise the majority of Assistant Managers [sic] working hours, are not their primary duties and do not make the job properly classified as exempt." Plaintiff further alleged:

"12. Sears prohibits its Assistant Managers from recording the time they spend working. Instead, regardless of the number of hours worked in a given week, Sears' payroll system automatically logs a pre-set number of hours per pay period. As an Assistant Manager at Sears' Bakersfield, California retail store, Plaintiff regularly worked more than 60 hours per week and sometimes more than 12 hours in a day. Plaintiff was classified as an 'exempt' employee by Sears and was compensated on a salary basis at the rate of $40,000 per year . . . . Sears maintains a policy and practice of classifying all of its Assistant Managers as 'exempt' employees under the California Labor Code and does not pay them overtime wages.

Plaintiff further alleged:

"13. Sears maintains a policy and practice of not paying its Assistant Managers all the wages due and owing to them at termination. Aside from failing to pay the overtime wages owing to its Assistant Managers, Sears also does not properly pay its Assistant Managers employed in California for all accrued vacation time in violation of the California Labor Code. [¶] 14. Plaintiff resigned from employment with Sears on or about November 5, 2010, after working for Sears since February 2007. Her last day of employment was on or about November 9, 2010. Plaintiff was not provided a final pay check until November 30, 2010, and that paycheck did not include all wages due and owing to her."

On December 19, 2011, Defendants filed their motion to dismiss and strike portions of the SAC. On January 13, 2012, Plaintiff filed her opposition to Defendants' motion. On January 23, 2012, ...


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