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Nykeya Kilby v. Cvs Pharmacy

May 31, 2012

NYKEYA KILBY,
PLAINTIFF,
v.
CVS PHARMACY, INC.,
DEFENDANT.



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

ORDER GRANTING DEFENDANT CVS PHARMACY, INC.'S MOTION FOR SUMMARY JUDGMENT [Doc. No. 113]

Plaintiff Nykeya Kilby seeks to recover penalties pursuant to the California Labor Code Private Attorney General Act of 2004 ("PAGA") against her former employer, Defendant CVS Pharmacy, Inc. This action is currently before the Court on CVS's motion for summary judgment. After considering the oral arguments of counsel and all pertinent matters of record, the Court GRANTS CVS's motion.

PLAINTIFF'S PAGACLAIM

Plaintiff Nykeya Kilby is a resident of Chula Vista, California, and a former employee of CVS, where she worked as a Customer Service Representative ("Clerk/Cashier" hereafter) for approximately eight months. Plaintiff seeks civil penalties against CVS for allegedly violating California Labor Code § 1198, which makes it illegal to employ a person under conditions of labor prohibited by an applicable Industrial Welfare Commission ("IWC") Wage Order.*fn1 See First Amended Complaint ("FAC"), Doc. No. 6. Specifically, Plaintiff alleges that CVS violated a condition of labor by failing to provide its Clerk/Cashiers with suitable seats, contrary to Wage Order 7-2001, § 14(A). Section 14 of Wage Order 7-2001 states:

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

Cal. Code Regs. Tit. 8 § 11070(14) ("Section 14").

According to Plaintiff, the nature of Clerk/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 employee to remain in reasonably close proximity to the cash register; (c) many of the tasks the employee performs while stationed at a cash register, 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.

RELEVANT FACTUAL BACKGROUND

The following material facts are not reasonably in dispute. CVS operates approximately 850 retail pharmacy stores in California. CVS is committed to providing excellent service to its customers. Plaintiff joined CVS as a Clerk/Cashier in March 2008. When interviewing for the job, Plaintiff's interviewer explained the expectation that she stand while working, including while operating the cash register. Once hired, Plaintiff viewed training videos which reinforced the expectation that Clerk/Cashiers are expected to do a variety of work while standing.

According to CVS's Clerk/Cashier job description, the essential functions of the job include:

* operate a cash register including cash transactions, checks, charges

* follow company policies and procedures regarding cash register performance

* request additional help when needed to increase customer satisfaction

* greet each customer using the eye's, hi's and help at all times and assist customers with their questions, problems and complaints

* price merchandise utilizing price guns

* store cleanliness: break area and rest rooms; vacuum; dust/face; clean windows; rubbish removal; exterior maintenance; sweeping

* stock shelves

* complete price changes: document counts, ...


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