California Court of Appeals, First District, First Division
San Francisco City & County Super. Ct. No. CGC-12-518619
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Workman Law Firm, Robin G. Workman and Aviva N. Roller for Plaintiff and Appellant.
Orrick, Herrington & Sutcliffe, Andrew R. Livingston, Brooke D. Arena and Aubry R. Holland for Defendant and Respondent.
Eva Vidal Mies seeks to bring a class action against her former employer, Sephora U.S.A., Inc. (Sephora), on behalf of employees who, like her, worked as Specialists in Sephora’s California retail stores. Mies claims Sephora misclassified Specialists as exempt from certain provisions of California labor law and, as a result, failed to pay overtime wages and failed to compensate them for missed meal periods. However, after crediting evidence that all Specialists do not engage in the same tasks to the same extent, the trial court denied class certification, concluding individualized issues, not common ones, would predominate the determination of liability. We conclude the trial court used proper legal criteria in assessing class certification and substantial evidence supports the trial court’s findings. We therefore also conclude the court did not abuse its discretion in denying class certification.
Factual and Procedural Background
Sephora operates 47 retail cosmetics stores in California. Each store has a Store Director, who runs the store, and one to four Specialists. Specialists manage “Cast Members” (sales associates) and “Leads” (lead consultants, floor leads, or sales leads who take on greater responsibilities and who typically seek promotion to Specialist), and may manage between 10 and 45 subordinates at any given time.
In her February 27, 2012, complaint, Mies alleges Sephora has misclassified Specialists as exempt and paid them lower wages than required by law. She further alleges Sephora failed to pay overtime wages in violation of Labor Code section 1194, and engaged in unfair competition in violation of Business
and Professions Code section 17200 by failing to pay these overtime wages, failing to provide Specialists with meal periods or compensating them for missed periods, improperly paying Specialists in accrued paid time off (PTO), and, as a result failing to provide accurate wage statements. Mies additionally seeks statutory penalties under the Labor Code Private Attorneys General Act of 2004 (Lab. Code, § 2698, et seq.).
Mies seeks to certify a class of the 99 California-based Specialists employed between February 22, 2006 and the present.  The common issue, according to Mies is “whether Sephora improperly classified the Specialists as exempt executives or administrators.” She claims the proper classification of these Specialists can be determined by common proof, without a highly individualized inquiry for each employee.
In support of her class certification motion, Mies presented evidence she maintains shows the Specialist position is standardized, and thus amenable to class treatment. This included the fact there has been a single job description for Specialists since 1999. This description includes such activities as “directly manage a zone in terms of sales, operational and human resources functions, ” “ensure... adherence to” corporate culture and policies, model client service standards, recruitment, supervision, and discipline of employees, ensure store presentations are appropriate, conduct inventories, “learn to perform cashier duties”, move about the selling floor and offices, and “[a]ssume Store Director’s responsibilities when assigned as Director-in Charge.”
The job description also refers to company-wide policies covering innumerable tasks to be performed in Sephora stores, whether completed by a Specialist or some other employee. Additionally, some tasks are assigned from above “store level” via e-mail or an electronic planning system, and Specialists review these communications and assure task completion. There is also a training program for all new Specialists, to ensure consistency in
training. Specialists are evaluated in part on how well their store fares during audits for policy compliance.
In making her case for class certification, Mies also pointed to a 2010 in-house survey of how Sephora leadership (Store Directors, Specialists and Leads) spent non-selling time, which relied upon a single list of activities to analyze leadership time at all stores. The survey found leadership employees, collectively, generally spent the same percentage of time tackling non-selling tasks regardless of their store’s sales volume.
Mies also asserted the trial court could look to statistical evidence to determine liability on a class-wide basis. Mies did not propose or justify any particular statistical method of her own, however, and submitted no expert testimony. In her opening memorandum in the trial court, Mies simply stated “[g]iven we know the universe of tasks Sephora believes a Specialist can perform (based on its  survey), ” Mies “will present evidence through a statistical sample of the class, which will determine how much time Specialists spend on specified tasks” and “therefore establish, on a collective basis, whether [they] spend more than 50% of their time” doing nonexempt work. In her reply memorandum, Mies clarified she was not offering a statistical method of her own, but relying on Sephora’s expert’s deposition testimony, which she believed was evidence statistical sampling would give proof of class-wide liability. She cited Sephora’s expert’s testimony about the usefulness of time and motion studies (essentially, employee monitoring) to ascertain what time a given employee spends on certain tasks. Moreover, the expert testified he had used such a study in connection with a class certification motion in a different case involving the question of employee classification. According to e-mails between Sephora and its expert, Sephora had considered conducting an observation study of 10 Specialists for its own purposes in this case, but apparently decided it was not then worth the cost.
Sephora opposed class certification with evidence the duties of Specialists varied. A Sephora District Manager, Kelly Guerriero, declared company policies do not dictate everything a Specialist does, and Specialists “constantly have to use good judgment” to resolve situations with clients and with the employees they manage. She further stated the work of a Specialist varies with the size of the store, the number of Specialists employed at the store, the skills and experience of the Specialists, and the management style of the Store Director. Additionally, some stores have Operation Specialists and HR Specialists. In stores without such employees, Specialists also perform these ...