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Batze v. Safeway, Inc.

California Court of Appeals, Second District, Fourth Division

April 4, 2017

GARY BATZE et al., Plaintiffs and Appellants,
v.
SAFEWAY, INC., et al., Defendants and Respondents.

         APPEAL from a judgment of the Superior Court of Los Angeles County, Nos. BC348090 & BC399811 Anthony J. Mohr, Judge. Affirmed.

          Daniels, Fine, Israel, Schonbuch & Lebovits, Paul R. Fine, Scott A. Brooks and Craig S. Momita; Law Offices of Ian Herzog and Ian Herzog; Law Offices of Stephen Glick and Stephen Glick for Plaintiffs and Appellants.

          Littler Mendelson, J. Kevin Lilly, R. Brian Dixon and Philip L. Ross for Defendants and Respondents.

          MANELLA, J.

         Appellants Gary Batze, Carlo Cesar and Justin Hayes brought suit against their employer, Safeway, Inc. and The Vons Companies, Inc. for failure to pay overtime wages.[1] Appellants claimed that in their positions as First and Second Assistant Managers (AMs) for respondent's stores they had been required to work long hours performing such non-managerial tasks as stocking shelves, checking customers' purchases and building product displays. After weeks of trial and the testimony of dozens of witnesses, the trial court ruled, for the most part, in respondent's favor, finding that appellants were engaged for more than 50 percent of their work week in managerial tasks, and that they met all the other qualifications to be exempt from the overtime rules. The court also ruled that during the five-month period when Batze and Hayes replaced striking hourly workers, they continued to be exempt employees. Finally, the court ruled that only those claims arising within the four years preceding appellants' respective complaints were cognizable, and declined to apply equitable tolling to relate their claims back to the filing of a proposed class action for which certification had been denied.

         Appellants contend the court's findings that they spent the majority of their time at work engaged in managerial activities during the four-year period at issue was not supported by substantial evidence. Specifically, they contend that an employee's ratio of exempt to non-exempt activities must be determined on a week-by-week basis, that no inferences may be drawn from the employee's activities in surrounding weeks, and that because the employer bears the burden of proof, for any specific week in which no defense witness observed appellants' actions at work the court should have found in appellants' favor. We reject that contention and conclude the court drew reasonable inferences from the witnesses' testimony and other evidence that established how appellants spent the majority of their time.

         Appellants also contend the court improperly found that the strike period constituted an emergency that permitted respondent to assign managerial employees to non-exempt tasks without losing their exempt status. We affirm the court's decision.

         Finally, appellants contend the trial court erred in ruling that the statute of limitations precluded them from raising claims based on periods of employment more than four years prior to the filing of each of their complaints. We conclude the trial court reasonably found that the filing of the class action did not toll the statute of limitations.

         FACTUAL AND PROCEDURAL BACKGROUND

         A. Background Facts

         In July 2002, a putative class action was filed by Peter Knoch and Jason Ritchey (the Knoch action) on behalf of all store managers and AMs employed by respondent. The claims included failure to pay overtime wages and violation of the unfair competition law (Bus. & Prof. Code, § 17200 et seq., UCL).[2] The motion for class certification was filed in November 2006. Class certification was denied in July 2007; the order denying certification was entered in September 2008.

         Appellant Gary Batze, who had been a Second AM for respondent, filed his complaint for unpaid wages in February 2006. Appellants Carlo Cesar and Justin Hayes, who had been First AMs, filed their complaints in October 2008.[3] Multiple other managerial employees filed related claims against respondent in 2005 and 2006. Appellants' claims were selected to be tried together.

         B. Evidence at Trial [4]

         1. Evidence Pertinent to Batze

         a. Plaintiffs' Evidence

         Batze worked for respondents from June 1987 through August 2006. In August 1998, he was promoted to a salaried managerial position at the Blackstone store.[5] Between 2000 and 2006, he worked at the Clovis store, with a stint at Bakersfield and Lake Isabella stores during the five-month strike by union employees in 2003 and 2004. Throughout his tenure as a salaried employee, he was assigned to the night/early morning shift (4:00 a.m. to noon or 1:00 p.m.), and testified that he regularly worked 50 to 60 hours per week.

         According to Batze, his primary duty was building and filling merchandise displays. He was given specifications as to the design of the displays, where they were to be placed in the store, and the merchandise to include, exercising little or no discretion. When products requiring display arrived, he might spend up to 12 hours in a single day moving pallets of products from the back room to the floor, physically tearing down the old displays and putting up the new ones. He also stocked shelves and was responsible for keeping the back room organized, which required him to personally move and stack pallets and merchandise some of the time. Although Batze was the sole managerial employee at the store during the late night hours and was titularly in charge, the night crew boss normally oversaw the hourly employees. Because few of his working hours took place when the store was open, he had little opportunity to supervise the clerks as they served customers. Batze estimated he spent 90 to 95 percent of his time as a Second AM “doing physical manual work.”

         Throughout the time Batze and the other appellants were employed by respondent, the stores were required to adhere to an “operating ratio” of sales to employee salary.[6] In Batze's experience, meeting the operating ratio required salaried employees to perform the jobs of hourly workers because salaried employees could work overtime without causing the store to incur additional labor costs.

         During the Southern California grocery clerks' strike that took place from October 2003 to the beginning of March 2004, Batze claimed to have worked at stores in Bakersfield and Lake Isabella for 14 to 16 hours a day for two or three weeks without a day off. He did everything the striking hourly employees would have done, except checking. He denied having responsibility for training the employees brought in to replace the striking workers.[7]

         As a Second AM, Batze had no discretion over pricing, hours of operation, employee salary, the dress code, or the design and layout of stores. Batze was never enrolled in respondent's Retail Leadership Development (RLD) program.[8] Batze did not deny that he performed some managerial tasks, including writing employee appraisals and preparing the work schedule for the night crew, but estimated he spent only a couple of hours a year writing appraisals and only 10 to 15 minutes a week writing the schedule. He acknowledged that he had discretion over the displays in “one [or] two” locations in the store, that he could add products he believed tied in to displays, and that at least some of the displays were built by vendors, under his supervision. Batze also was responsible for minimizing “out-of-stocks” (products carried by the store that sold out, leaving empty shelves) and for placing orders for the grocery department, which comprised the bulk of the store. Managing out-of-stocks required him to walk the aisles to see whether the store was low on any product, scan bar codes to trigger the warehouse to send more product, confirm that deliveries had come in, and work with the night crew to get products from the pallets on which they were delivered to the shelves. He used his discretion in taking tags off the shelves when he knew or believed the warehouse was out of the described products.

         Batze called fellow employees, current and former, to support his claim. Thomas Moore, a store manager who worked with Batze from 1998 to 2000, testified Batze primarily built displays and stocked shelves, and that these were typical tasks for Second AMs during Moore's tenure with respondent (1967 to 2007). Debbie Lucio, a former Second AM who worked for respondent from 1990 to 2006, observed Batze building displays and working long hours when he was a Second AM. James Saubert worked with Batze at the Clovis store. From his observations, Batze appeared to be spending the majority of his time -- 90 percent, according to Saubert -- building displays and stocking shelves. Saubert also observed Batze engaged in managerial tasks, such as talking to the receiver about organizing the back room and talking to the dairy manager about the status of orders. Tammy Baldridge worked with Batze from 1999 to 2006. She primarily observed him building displays. She took over the Second AM position when Batze left. She spent a significant part of her shifts “throw[ing] loads” (organizing products delivered to the back room) and building displays. Tom Dunehew worked as a Second AM for 12 years, and held that position at the Clovis store after Batze and Baldridge left. Dunehew testified that as a Second AM, he primarily built and filled displays and stocked shelves. Staci Dack worked with Batze at Clovis for six years. She recalled that Batze was at work before she arrived for her eight-hour shift and remained there after she left. She primarily observed him building displays or helping the night crew stock shelves.

         2. Defense Evidence

         Michelle Macaluso was the store manager who supervised Batze at the Clovis store from January 2004 to August 2006, when Batze left respondent's employ. The Clovis store was very large and busy. There were 115 to 125 employees, and weekly sales were approximately $600, 000. It was open from 6:00 a.m. to midnight. Macaluso worked from 6:00 or 7:00 a.m. to 5:30 p.m., Monday through Wednesday, and Friday and Saturday, 48 to 50 hours per week. Batze, who started at 4:00 a.m., generally left on time at noon or 1:00 p.m., or if he worked late one day, left early another.

         Macaluso testified Batze was responsible for “merchandising, ” making sure displays were built at the correct place in the store and filled. Batze had some discretion concerning where to place displays and how large they would be. He could create a theme for a display, such as a holiday theme, and could add items he believed were tied in to the products he was required to include. There were 40 to 45 displays in the store; some changed weekly or monthly, but others were permanent. Batze built four to six displays per week. He had the assistance of the “GM” manager, an hourly position, when he built them. Vendors were responsible for many of the displays, and Batze coordinated with 20 to 25 vendors per week concerning their displays and where to place them. Because the Clovis store was so large, Batze had discretion to give vendors additional display space. Macaluso disputed that Batze could have spent 90 percent of his time building displays because they were built only Mondays through Wednesdays.

         Batze supervised the ten employees, (including four clerks, two night crew supervisors, a receiver, and a scan coordinator) on duty at night. He coached them and reviewed their performance. He addressed their negative behavior. He trained new employees. Batze also was responsible for the back room, making sure it was organized and that vendors delivered the correct amount of product. He had the assistance of the store's receiver, an hourly employee. Batze placed his office in the back area so he could more easily interact with the vendors. Macaluso confirmed that Batze was responsible for minimizing the store's out-of-stocks. In that role, he coordinated with department managers or the receiver to ensure they ordered correctly to prevent the problem from arising. Personally walking up and down the aisles assisted him in managing out-of-stocks, as it permitted him to determine where and when the problems arose. Macaluso put Batze in charge of eliminating or minimizing “shrink” (unsold products, such as those that spoil and must be discarded). She credited him with producing “the best shrink numbers in the district.” Batze also was on the safety committee which met monthly and regularly communicated safety concerns to employees. Macaluso estimated Batze spent 60 percent of his time on managerial work.

         Respondent introduced a number of notes Macaluso wrote to Batze about his management skills, including one congratulating him for achieving a score of “100%” on the “[s]hrink audit.” Respondent also introduced performance appraisals demonstrating Batze had been commended for “mak[ing] good decisions, ” “involv[ing] his employees in some decision making, ” “foster[ing] a positive attitude with employees, ” “tak[ing] charge of his department, ” “build[ing] a strong team, ” “display[ing] good leadership qualities, ” “improv[ing] sales in the grocery department, ” and “manag[ing] with minimal supervision.” Concerning his claim to have worked overtime in Bakersfield and Lake Isabella during the strike, respondent submitted cash register data showing Batze working in the Clovis store in the early part of 2004. Macaluso testified that Batze was working with her in Clovis from January 2004 until the strike ended.

         Batze was the subject of an observational study on September 27, 2004 (a Monday), over a year before he filed suit. The observer tracked him through the store that day and wrote down precisely how much time he spent on his various activities.[9] He was observed performing a substantial number of managerial tasks, including walking the aisles of the store (performing a “store walk”) while talking to the receiver about ordering, talking to clerks, stockers and the receiver about the schedule, directing a clerk to make tags and signs, asking a clerk about the status of an order, telling a stocker how to arrange merchandise, directing a stocker to arrange a display, talking to a stocker about a soda shipment, talking on the phone with a frozen food manager about placing an order, talking to the dairy manager about diversity training, talking with a store manager about a sick employee, and talking to a vendor about an order, stock levels and display changes. The observational study showed that Batze spent approximately 40 percent of his time “[b]uilding [d]isplays and [s]tocking” and minimal amounts of time on other non-exempt work.[10] Overall, the study showed that Batze spent 53.6 percent of his time on managerial work and 46.4 percent on non-exempt tasks.

         2. Evidence Pertinent to Cesar

         a. Plaintiffs' Evidence

         Cesar began working for respondent in June 1987 and was still employed by respondent at the time of trial. In August 2002, while working at the Dublin store, he became a First AM.[11] Prior to assuming the position, he completed respondent's Retail Leadership Development program.[12] The program trained him to work in every part of the store. This was because managers were expected to understand how to do everything in the store and be able to fill in everywhere. Cesar described his duties as being a “gap-filler..., filling gaps wherever it's needed, ” including checking, stocking shelves and organizing the back room. He said that using AMs to perform the work of hourly employees allowed stores to meet their prescribed operating ratio.

         Cesar testified that he spent between 60 and 90 percent of his work time on non-exempt tasks, and that the allocation between managerial and non-managerial tasks was fairly similar at all the stores in which he worked as an AM. At his then current position, the Alamo store, almost every day he would be given a list of non-exempt tasks by the store manager, such as cleaning a freezer, filling an outside stand with advertising brochures, moving products on and off the floor, straightening products in displays or on the shelves, or cleaning and organizing the upstairs storage area. He stated that he checked and stocked shelves almost every day, and was often formally scheduled to be a stocker or the backup checker. He recently had been asked to wear the badge of a “manager in training” because the union had complained about the Alamo store having too many salaried employees.

         According to Cesar, one of his duties at virtually all the stores to which he had been assigned was to work as the “front-end” manager. This required him to stay at the front of the store observing the checkers, directing customers, calling for more checkers, and checking “as needed.”[13] At Alamo, Cesar was assigned the task of managing the front-end approximately one to two hours per day. At the Blackhawk/Danville store, his prior assignment, he spent three to four hours at the front-end. At Orinda and Lafayette, he was in the front-end three to six hours daily. At the Pleasanton store, almost all his time was in the front-end. At Pleasant Hill, he was at the front-end one to two hours per day. At the Livermore store, he was at the front-end from two to six hours until the store got a new manager, at which point he was reassigned and spent more time stocking and organizing the back room. At Dublin, he averaged two to four hours per day in the front-end.

         Cesar did not deny that he spent some time in the manager's office every day performing managerial tasks, such as writing schedules, attending meetings, reading and responding to emails, disciplining employees and taking calls. He estimated that at the Alamo store, he was in the office one to two hours per day. Overall, he estimated that he averaged between one and two hours per day in the office throughout his tenure as an AM, except on those days he had a specific task requiring more office time. At Blackhawk/Danville, the time he spent in the office was slightly less. Cesar acknowledged that in his position as AM, he disciplined and terminated employees and sometimes delegated longer tasks to others. He acknowledged that when performing a non-managerial task, he would frequently have to shift duties to take care of a managerial function.

         One of Cesar's regular duties was to perform a store walk at the end of his shift, checking displays and ordering items needed to fill them, and making sure products on shelves around the perimeter were “faced” (placed neatly on the shelf, older items in the front). He performed dozens of shorter store walks every day to observe store conditions. During those store walks, he sometimes brought a dolly full of merchandise to fill in shelves or displays. He also looked for opportunities to observe and communicate with employees, and to ensure they were staying on task.

         In his deposition, Cesar was asked about what he had done on his most recent day of work, a day he had described as “typical.” He testified he met with the store manager when he arrived at work and obtained a list of tasks, which was not lengthy. He had a meeting that lasted 30 minutes and participated in a conference call. He checked his email. He conducted a short store walk, during which he greeted department managers, fixed the problems he could, and put other items on a list to be handled later, either by himself or assigned to other employees, at his discretion. He testified that he checked for an hour and stocked shelves and worked on displays for only one to two hours that day.

         In 2009, after his stint at the Orinda store and a period of disability, Cesar was placed on a Performance Improvement Plan (PIP) by his superiors. Under the PIP, he was given the goal of keeping out-of-stocks to fewer than 120 daily. He was told to “identify and develop at least one department manager and two employees to meet [respondent's] goal in key performance areas, service, [out-of-stocks], shrink, foot safety and sanitation.” He was told to make sure to sign off on various inspections. Other goals given in the PIP were to plan advertising weekly with department managers and order writers; attend weekly profit hour meetings; perform “mock shops” and “role plays” with employees to test their performance; hold three “huddles” daily with employees; create a list while walking the store for merchandising, food safety and sanitation; delegate tasks to employees with follow-up; and develop a system to ensure all department managers knew about sales and projections.

         In his annual evaluations, Cesar had been praised for his hiring, training, coaching and mentoring efforts. He had been criticized for failing to “get involved in opportunities to save costs and add value to [the] bottom line, ” “demonstrate an acceptable degree of forecasting and scheduling ability, ” “spend [sufficient] time on scheduling and in merchandising for sales, ” “follow through on the work that he has delegated, ” and review the inventory report. He also was criticized when a store to which he was assigned failed to pass its safety audit on multiple occasions, and was directed to monitor safety issues more closely and to perform more “safety laps.” He had been told in his evaluations to “address disciplinary issues, ” “take a more active role in identifying and solving store issues, ” “improve on holding people accountable and following up on directions given, ” “tak[e] charge of an issue or opportunity to improve the overall store performance, ” “[rally] employees to service excellence, ” and “identify opportunities in the operation and then make the improvements.” One evaluation said that Cesar “works hard, but does not work the big picture, ” that he was “very adaptable to various demands and assignments[, ] always willing to get in and work, ” but that his “willingness to roll up [his] sleeves [got] in the way of managerial functions.”

         A number of Cesar's fellow employees testified in support of his claim that he spent more than half his work time on non-exempt tasks. Jonathan Meyer worked with Cesar at the Dublin, Livermore and Blackhawk/Danville stores.[14] According to Meyer, Cesar spent much of his time at Dublin checking, “throwing freight, ” and stocking shelves. If an hourly employee called in sick, Cesar would take over his or her job. At the Livermore store, Cesar worked alongside Meyer, building displays and stocking shelves. Meyer estimated 90 to 95 percent of Cesar's time was spent performing non-managerial work.

         Thomas Hogan, a store manager, supervised Cesar at the Livermore store in 2005 and 2006.[15] Hogan acknowledged AMs were responsible for watching out for problems and training staff, but stated there were not enough hourly employees at the store to perform all the necessary tasks, requiring use of salaried managers to fill in to meet the prescribed operating ratio. Hogan believed the majority of Cesar's day was spent checking, cleaning or stocking shelves, rather than performing managerial tasks. Hogan acknowledged that Cesar was in charge of the store two days a week, on Hogan's days off.

         Nicholas Schirato worked with Cesar at the Livermore store, where Schirato was a Second AM.[16] Schirato observed Cesar stocking shelves, “merchandising” and cleaning. He estimated Cesar spent 90 percent of his time performing those tasks.

         Jennifer Attia, an hourly employee, worked with Cesar in Pleasant Hill, where Cesar had been acting store manager, and at the Alamo store.[17] Cesar stocked shelves, checked and generally did whatever needed to be done, including relieving employees on breaks. Attia did not see Cesar in the office very much at Alamo. Attia acknowledged that Cesar used store walks to observe how employees were doing their jobs and to see what needed to be done.

         Vickie Penny, a clerk, Amy Carey, a clerk and former AM, and Debra Penny, a bookkeeper and clerk, worked with Cesar at the Lafayette store.[18] They testified he was stocking or checking 85 to 90 percent of the time. Carey also recalled Cesar building displays. Debra Penny said he frequently watched the front-end.[19]

         Jeremy Schoen and Shena Meyer worked with Cesar at the Orinda store.[20] Schoen testified that for the majority of his time at work, Cesar checked, worked freight or filled displays. In Meyer's perception, Cesar was greeting customers, stocking shelves, facing, checking, bagging and helping in any short-staffed department 95 percent of the time.

         Tracy Pierson, an hourly employee, Carole Drevno, a front-end manager, and Gary Dunmoyer, a day stocker, worked with Cesar at the Blackhawk/Danville store.[21] They testified that the bulk of his day was spent on the sales floor, doing non-managerial tasks, such as stocking, checking and building displays. He was in the office one to two hours per day.

         Susan Bryce and Scott Benvie, both hourly clerks, and Daniel Carey worked with Cesar at the Alamo store.[22] They testified they typically observed him stocking shelves and building displays. Bryce testified that Cesar checked more than the other managers. Carey also observed Cesar working in the back room, checking and helping supervise in the front.

         b. Defense Evidence

         Janet Navarrette worked in the Dublin store with Cesar in 2004. She was the deli manager. She saw Cesar performing store walks of up to two hours. She rarely saw him working at the cash registers. In Navarette's estimation, Cesar spent 50 percent of his time in the office, dealing with managers, vendors and employees.

         Beverly Gandolfo, a Second AM, worked with Cesar at the Livermore store in 2006 and at the Alamo store, his then current assignment. Gandolfo had been a stocker at the Livermore store and did not observe Cesar working in that capacity with any frequency. There were sufficient hourly stockers at the store to complete the task without the assistance of the AMs. Gandolfo described her responsibilities as an AM at Alamo as observing, coaching and mentoring employees, preparing the work schedule, preparing time and attendance reports, reviewing emails, participating in conference calls, and performing store walks. She spent a great deal of her time in the office. During store walks, she observed employees and talked to them about service, met with the various department managers, checked for out-of-stocks, and made sure missing items were ordered. She did not have time during store walks to perform tasks that could be delegated to an hourly employee. Because she was responsible for controlling out-of-stocks, she sometimes scanned them herself. This facilitated her ability to follow up with her crew and the receiver to determine why the problem had arisen. Gandolfo had seen Cesar perform store walks at Alamo and did not notice him doing anything differently than she did. She often saw Cesar working in the office. She acknowledged that she sometimes worked on displays, stocked shelves and checked, and was occasionally given a non-managerial task to perform by the store manager, but maintained that she performed managerial work the majority of her time. She had not seen Cesar stocking shelves, building displays or checking for lengthy periods. On a typical day, those activities would occupy less than two hours of a manager's time.

         Helen Carver was the district manager when Cesar was the acting manager at Pleasant Hill and when he worked at the Lafayette and Orinda stores. Carver transferred Cesar from Pleasant Hill to the Lafayette store, after observing that the Pleasant Hill store was experiencing problems with cleanliness, organization and missing signage. When Carver spoke to Cesar about the problems the store was experiencing and his transfer, he did not suggest that spending time on non-exempt work had interfered with his ability to properly manage the store. After Cesar's transfer to Lafayette, Carver observed problems with cleanliness, out-of-stocks and poor service, and saw that quick-moving products were not being stored in the right place for easy access. Carver helped prepare the PIP, which was put in place after Cesar returned from leave to begin work at Blackhawk/Danville. Carver further testified that she expected managerial employees to deal directly with out-of-stocks because minimizing them required coordinating with order writers and determining what items were likely to be hot sellers and why. Carver explained that during a “checkout success” audit, imposed on a store when it was not meeting service goals, managers were told to stand in front of the store and oversee the checkers, not to check themselves.

         Steven Kozak was the store manager for the Blackhawk/Danville store where Cesar was assigned after being placed on the PIP. The store was large, with 100 to 150 employees. There were sufficient numbers of nonsalaried people to perform all needed stocking and checking. Kozak had no trouble meeting the operating ratio without overusing salaried managers. He did not expect Cesar to spend more than half his time on non-managerial functions. When Kozak performed a store walk, he took notes, wrote down “opportunities, ” made a list of tasks, talked to staff, made sure the departments were up and running, coached and gave direction. He trained Cesar to do the same. He gave Cesar other managerial responsibilities, including preparing the weekly marketing plan. He told Cesar to pick a different department every day and meet with the employees working in that department to coach them on service. He instructed Cesar to document that he had engaged in three “huddles” daily. He saw Cesar stepping in to check more often than he should have, and told him “he should not be the first person in the check stand.” Kozak did not observe Cesar stocking shelves for long periods.

         Kimberly Johnson took over from Kozak as store manager for Blackhawk/Danville. She supervised Cesar in 2009. She twice admonished Cesar to do less checking. Once, she had been out for part of the day and returned to find Cesar checking when the lines were not long. She told him to move on to other tasks. Johnson performed store walks with Cesar in the afternoons. During those walks, they would evaluate store conditions, make adjustments, talk to employees about service, coach and role play, delegate tasks to prepare for the evening business, and tidy up displays. Cesar would perform a store walk on his own in the morning for approximately two hours. She observed Cesar interacting with employees throughout his workday.[23] The store had multiple hourly stockers, and Cesar was assigned to oversee them and keep them on task. Out-of-stocks were scanned three times a day by managerial employees. Cesar typically did the afternoon scan. After the scan, a report was generated that Johnson and Cesar reviewed and used to delegate tasks to the various departments. Johnson discouraged Cesar from writing orders himself, and told him to use the report as a training opportunity and to go over out-of-stock problems with the order writers. Johnson estimated Cesar spent 20 to 25 percent of his time at the front-end of the store and 60 to 70 percent on the floor, and that 80 percent of this front-end and floor time was spent on managerial tasks. Cesar worked in the back room 10 percent of his time, and half of that was managerial. He was in the office 10 to 15 percent of his time, and all of that was managerial.

         Adrienne Simpson worked with Cesar at the Blackhawk/Danville store in 2009. In her capacity as a bookkeeper, she was frequently in and out of the manager's office. She saw Cesar in the office a couple of hours each day. She observed him directing employees to perform various tasks and disciplining employees. She saw him in the check stands daily, but only for a few minutes at a time. She never saw him stocking shelves.

         Susan Obenour was the deli manager at the Alamo store and worked with Cesar in 2009. From her work area, she could see the manager's office. She also went in and out of the office multiple times a day. She estimated Cesar was in the manager's office from 30 to 55 percent of his time. When Cesar did his morning store walk, Obenour observed him writing notes about problems that she and other department managers might be having.

         3. Justin Hayes

         a. Plaintiffs' Evidence

         Hayes completed respondent's RLD program in 2003. He was working as a First AM at the Citrus Heights store at the time of trial. He had worked as a First AM at the Arden Way store from 2004 to 2007, at the West Sacramento store for a few months in 2007, and at the Elk Grove/Laguna store from 2007 to 2009.[24] In addition, he had been ...


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