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Gunther v. International Business Machines Corp.

United States District Court, C.D. California

July 14, 2016

Kimberly Gunther
v.
International Business Machine Corporation

          Present: The Honorable Philip S. Gutierrez, United States District Judge

          CIVIL MINUTES - GENERAL

          Honorable Philip S. Gutierrez, United States District Judge

         Order DENYING Plaintiff’s Motion to Remand

         Before the Court is Plaintiff Kimberly Gunther’s motion to remand to Los Angeles Superior Court. Dkt. # 16. The Court finds the matter appropriate for decision without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15. After considering the moving, opposing, and reply papers, the Court DENIES the motion to remand.

         I. Background

         Plaintiff is a California citizen and a former employee of Defendant International Business Machine Corporation (“Defendant”). Dkt. # 19-1; Dkt. # 1, Notice of Removal (“NOR”), Ex. 1 (“Compl.”) ¶ 3. Defendant is a citizen of New York. See NOR ¶ 7. Defendant employed Plaintiff as an exempt employee from October 21, 2013 to June, 2015, during which time Plaintiff worked out of a home office and traveled throughout California. Compl. ¶ 3.

         On or about February 1, 2016, Plaintiff gave written notice to Defendant and to the California Labor and Workforce Development Agency (“LWDA”) by certified mail. Id. ¶ 15. In compliance with Labor Code § 2699.3(c), Plaintiff waited in excess of thirty-three days for the LWDA to intervene. Id. When it did not do so, Plaintiff filed a Private Attorney General Act (“PAGA”) suit against Defendant in the Los Angeles County Superior Court of California on March 11, 2016. See id.

         Plaintiff alleges that Defendant failed to pay her and all other aggrieved employees:

all non-discretionary bonuses, including quarterly bonuses, commissions, awards, and incentive pay that Plaintiff earned, including by failing to pay all compensation for all work performed, including but not limited to failing to pay all earned and owed bonuses (including but not limited to the Associate Partner Plan bonus, the Incentive Plan, the Plan to Date achievements, Incremental Incentives, Pool Based payments, Target Incentive pay, Growth Driven Profit Sharing) earned and owed and due at each year end of fractional payments within a year, including at end of employment, and earned and owed when transitioning to another IBM position within the company.

Id. ¶ 1. Plaintiff also alleges that Defendant failed to pay her and other employees all accrued and unused vacation wages and that Defendant had an illegal “use-it-or-lose-it” vacation plan which resulted in earned vacation wages being forfeited. Id. Plaintiff states that when IBM did pay vacation days, it failed to cash out those vacations days at the proper rate of pay because it did not add bonuses and commissions to the average daily compensation. Id. Defendant also: failed to account for accrued vacation during paid leaves of absences despite its agreement to do so; improperly deducted vacation time that was “borrowed” as advanced salary before it was earned, and then required it to be paid back at the end of employment; and invalidly capped accrual where it should not have done so. Id.

         Additionally, Plaintiff alleges that Defendant failed to pay her and other aggrieved employees for work-related expenses and losses, including:

all home office expenses, home office supplies, furniture, pro rata value of home office space value, the pro rata of utilities, all communication devices used for work, cell phones and monthly plans, landline phones, pens, papers, internet access charges, printer ink cartridges, and all mileage pay and parking.

Id. Finally, Plaintiff challenges the wage statements provided to her and all other aggrieved employees on the basis that those wage statements (1) inaccurately omitted the wages due as a result of Plaintiff’s other claims; and (2) did not “state the inclusive dates of the pay period for which the employees were paid.” Id. As a result, Plaintiff and the other employees became confused over whether they had received all the wages owed to them and were not able to keep track of (and therefore secure) the full amount owed to them on their last day of work. Id. Plaintiff alleges that Defendant’s conduct was “knowing and intentional.” Id.

         In total, Plaintiff alleges that Defendant is responsible to her and all other aggrieved employees for violations of twenty-two sections of the California Labor Code.[1]Id. Plaintiff seeks: (1) one hundred dollars for each aggrieved employee per pay period for the initial violation under Labor Code § 2699(f)(2); (2) two hundred dollars for each aggrieved employee per pay period for each subsequent violation, per Labor Code § 2699(f)(2); (3) fifty dollars for each underpaid employee for each pay period for which the employee was underpaid in addition to an amount sufficient to recover underpaid wages, per Labor Code § 558(a)(1); (4) one hundred dollars for each underpaid employee for each pay period for which the employee was underpaid in addition to an amount sufficient to recover underpaid wages, per Labor Code § 558(a)(2); (5) two hundred and fifty dollars per employee per violation in an initial citation per Labor Code § 226.3; (6) one thousand dollars per employee per violation in a subsequent citation, per Labor Code § 226.3; (7) two hundred and fifty dollars per employee per violation in an initial citation per Labor Code § 227.3; (8) five hundred dollars per Labor Code § 1174.5 violation; (9) one hundred dollars for each underpaid employee for each pay period for which the employee is underpaid under Labor Code ...


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