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Nykeya Kilby v. Cvs Pharmacy

April 4, 2012


The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge



Plaintiff Nykeya Kilby brings this putative class action to recover penalties pursuant to the California Labor Code Private Attorney General Act of 2004 ("PAGA") against Defendant CVS Pharmacy, Inc., her former employer. The parties appeared before the Court on April 2, 2012, for hearing on Plaintiff's motion for class certification and CVS's related motion to strike. For the reasons set forth below, the Court AFFIRMS its previously issued tentative rulings, DENIES Plaintiff's motion for class certification, and GRANTS IN PART and DENIES IN PART CVS's motion to strike.


California Labor Code § 1198 prohibits the employment of any individual in the mercantile industry under labor conditions proscribed by Industrial Welfare Commission ("IWC") Wage Order 7-2001, which applies to retailers such as CVS. See Cal. Lab. Code § 1198; Bright v. 99 Cents Only Stores, 118 Cal. Rptr. 3d 723, 726-28 (2010); Home Depot U.S.A., Inc. v. Superior Court, 120 Cal. Rptr. 3d 166, 171-74 (2010). Section 14 of Wage Order 7-2001 provides:

(A) All working employees shall be provided with suitable seats when the nature of work reasonably permits the use of seats.

(B) 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.

Plaintiff Nykeya Kilby is a resident of Chula Vista, California, and a former employee of CVS, where she worked as a "Customer Service Representative" (also referred to by the parties as a "Clerk/Cashier") for approximately eight months. Plaintiff seeks civil penalties against CVS based on CVS's alleged violation of Section 14 of Wage Order 7-2001. Specifically, Plaintiff alleges that CVS fails to provide its Clerk/Cashiers with suitable seats while operating cash registers at the front end, or retail, section of CVS stores, contrary to Section 14(A). According to Plaintiff, this in turn violates California Labor Code § 1198. Because Section 1198 does not contain its own civil penalty provision, Plaintiff states that she is entitled to recover the "default" penalties set forth in Section 2699(f) of PAGA.

According to Plaintiff, the nature of cashier work at CVS reasonably permits the use of seats because: (a) CVS places its cash registers at fixed locations within its stores; (b) operating a cash register requires the Clerk/Cashier to remain in reasonably close proximity to the cash register; (c) many of the tasks the Clerk/Cashier performs, including scanning merchandise, receiving payment, making change, and waiting for customers, could be performed from a seated position; and (d) the cash register stations at CVS could accommodate the placement of a seat or stool of some kind. FAC ¶ 14. Plaintiff seeks to represent a proposed class of former and current CVS Clerk/Cashiers who operated front end cash registers and were not provided suitable seats while doing so. Plaintiff estimates the class to be comprised of thousands of individuals, and alleges that the following common questions of fact and law make this action suitable for class treatment: (1) whether CVS is subject to the requirements of Section 14(A) of the Wage Order; (2) whether the job of a Clerk/Cashier at CVS reasonably permits the use of a seat; and (3) the amount of penalties that should be awarded under PAGA. FAC ¶ 9. Plaintiff moves to certify the following class pursuant to Federal Rule of Civil Procedure 23:

All persons who, at any time since June 9, 2008, were employed by CVS as Clerk/Cashiers in California and were not provided with a seat while they operated a front-end cash register.


In support of her class certification motion, Plaintiff submits the "Pre-Certification Report" of Professor Steven Johnson. Professor Johnson's report provides an expert opinion on "whether some or many of the person's tasks performed at the cash register counter could be performed effectively and efficiently" while seated. CVS moves to strike the report pursuant to Federal Rule of Evidence 702, arguing that it is based on inadequate and irrelevant data, suspect observations, and erroneous assumptions.*fn1 Before addressing the merits of Plaintiff's certification motion, the Court must consider CVS's challenge under Daubert v. Merill Dow Pharmaceuticals, Inc., 509 U.S. 579, 591 (1993), to Professor Johnson's expert report.*fn2

1. Legal Standard

Federal Rule of Evidence 702 provides: A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in ...

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