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Kilby v. CVS Pharmacy, Inc.

United States District Court, S.D. California

April 18, 2017

NYKEYA KILBY, individually and on behalf of all others similarly situated, Plaintiff,
CVS PHARMACY, INC., Defendant.


          Hon. Karen S. Crawford United States Magistrate Judge

         Before the Court is the parties' Joint Motion for Determination of Discovery Dispute. [DocNos. 160-163.] In the Joint Motion, plaintiff seeks an order compelling defendant to provide further responses to her Fourth Set of Interrogatories and Requests for Production of Documents. For the reasons outlined more fully below, the Court finds that plaintiff s request for an order compelling further responses to these discovery requests must be GRANTED in part and DENIED in part.


         The original Class Action Complaint in this case was filed on September 18, 2009. [Doc. No. 1.] A First Amended Class Action Complaint was later filed on January 15, 2010 (the “First Amended Complaint”). [Doc. No. 6.] The First Amended Complaint includes a single cause of action under California Labor Code Section 2698 et seq., also known as the Private Attorney General Act of 2004 (“PAGA”). [Doc. No. 6, at p. 2.] According to the First Amended Complaint, PAGA allows employees to recover penalties when an employer violates certain provisions of the California Labor Code. [Doc. No. 6, at p. 5.] California Labor Code Section 1198 requires employers to comply with wage orders. Section 14(a) of Wage Order 7-201 states that: “All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.” [Doc. No. 6, at p. 5.] In this regard, plaintiff alleges that Section 14(a) applies to the “mercantile industry” and that defendant is a member of the “mercantile industry.” [Doc. No. 6, at p. 4.] Plaintiff claims she was employed in one of defendant's retail drug stores in California as a cashier but was not provided with a seat while performing her work in violation of California Labor Code Section 1198 and Section 14(a) of Wage order 7-2001. [Doc. No. 6, at p. 2.]

         On October 3, 2001, plaintiff filed a Motion for Class Certification. [Doc. No. 63.] On April 4, 2012, the District Court denied plaintiffs Motion for Class Certification, concluding that plaintiff failed to satisfy the commonality requirement of Rule 23(a) and the predominance and superiority requirements of Rule 23(b)(3). [Doc. No. 131, at p. 10.][1]

         Next, defendant filed Motion for Summary Judgment [Doc. No. 113], which was granted by the District Court on May 31, 2012. [Doc. No. 136.] It was the District Court's view that Section 14(a) did not apply to plaintiffs position of cashier, because the “nature of the work” required standing. [Doc. No. 136, at p. 10.] Judgment was entered in favor of defendant, and the case was terminated. [Doc. No. 136, at p. 10.] Plaintiff appealed.' [Doc. No. 139.]

         To prevent different interpretations of Section 14, the Ninth Circuit requested that the California Supreme Court exercise its discretion to decide the following questions about the meaning of Section 14(a). [Doc. No. 147, at pp. 1-14.]

1. Does the phrase ‘nature of the work' refer to an individual task or duty that an employee performs during the course of his or her workday, or should courts construe ‘nature of the work' holistically and evaluate the entire range of an employee's duties?
a. If the courts should construe ‘nature of the work' holistically, should the courts consider the entire range of an employee's duties if more than half of an employee's time is spent performing tasks that reasonably allow the use of a seat?
2. When determining whether the nature of the work ‘reasonably permits' the use of a seat, should courts consider any or all of the following: the employer's business judgment as to whether the employee should stand, the physical layout of the workplace, or the physical characteristics of the employee?
3. If an employer has not provided any seat, does a plaintiff need to prove what could constitute ‘suitable seats' to show the employer has violated Section 14(a)?

[Doc. No. 147, at pp. 2-3.]

         On April 14, 2016, the California Supreme Court issued a decision entitled Kilby v. CVS Pharmacy, Inc., 63 Cal.4* 11 (2016). Considering the phrase “nature of the work, ” the California Supreme Court rejected the defendant's argument that Section 14(a) requires “weighing all of an employees' ‘standing' tasks against all of the ‘sitting' tasks” while ignoring the duration of those tasks and how often they are performed. Id. at 16-17. Rather, the California Supreme Court said the inquiry must focus on “consideration of the overall job duties performed at the particular location by any employee while working there, and whether those tasks reasonably permit seated work.” Id. at 17. In other words, the California Supreme Court rejected an “all-or-nothing approach [that] could deprive an employee of a seat because most of his job duties are classified as ‘standing' tasks, even though the duration, frequency, and location of the employee's most common tasks would make seated work feasible while performing them.” Id. According to the California Supreme Court, “[t]here is no principled reason for denying an employee a seat when he spends a substantial part of his workday at a single location performing tasks that could reasonably be done while seated, merely because his job duties include other tasks that must be done standing.” Id.

         The California Supreme Court also held that a “totality of the circumstances” approach should be applied to determine whether the nature of the work “reasonably permits” the use of a seat. Id. at 19. “Analysis begins with an examination of the relevant tasks, grouped by location, and whether the tasks can be performed while seated or require standing. This task-based assessment is also balanced against considerations of feasibility. Feasibility may include, for example, an assessment of whether providing a seat would unduly interfere with other standing tasks, whether the frequency of transition from sitting to standing may interfere with the work, or whether seated work would impact the quality and effectiveness of overall job performance. This inquiry is not a rigid quantitative analysis based merely upon the counting of tasks or amount of time spent performing them. Instead, it involves a qualitative assessment of all relevant factors.” Id. at 20. Other relevant factors may include the employer's business judgment based on an objective standard (e.g., “an employer's reasonable expectations regarding customer service” and “any evidence submitted by the parties bearing on an employer's view that an objective job duty is best accomplished standing”); and “the physical layout of a workspace.” Id. at 21-22.

         On June 8, 2016, the Ninth Circuit issued a Memorandum decision reversing and remanding the case to the District Court “to reconsider in light of the California Supreme Court's opinion.” [Doc. No. 155, at p. 2.] Thereafter, this Court directed the parties to submit a Joint Discovery Plan and appear for a Case Management Conference. [Doc. No. 153.] Following a telephonic Case Management Conference, a Scheduling Order was issued to allow the parties additional time to complete or update class-related discovery and to file any motions related to class certification. [Doc. No. 159.] The instant Joint Motion is one of three discovery disputes currently before the Court. [Doc. Nos. 160, 167, and 178.]


         Plaintiff Interrogaton Nos. 17, 18, 19, 20, and 21 all seek information related to the cashier stands at defendant's stores. In these requests, plaintiff seeks to elicit information to support her theory that defendant's stores in California “share similar cash register layouts.” [Doc. No. 160, at p. 9.] As to all of defendant's stores in California that have been open since June 9, 2008[2] to the present and as to all cash registers in those stores, plaintiff seeks a detailed description of the following: the cashier stands and configurations [No. 17]; the physical dimensions of the workspaces behind and around the cash registers and why those physical dimensions preclude the use of a seat or stool [No. 18]; the unique attributes of the register stands that impact or preclude the use of a seat or stool [No. 19]; the distances between the check-out stands and the product wall [No. 20]; and the identity of any store where defendant contends it would be physically possible or impossible to use a seat or stool while operating the cash registers. [Doc. No. 160, atpp. 7-19.]

         As defendant contends, Interrogatory No. 17, 18, 19, 20, and 21 are all unduly burdensome and overly broad. In California, defendant currently has about 870 stores. If closed stores are added to this calculation, defendant has had approximately 940 stores in California during the relevant time period. Assuming a minimum of four cash stands in each store, plaintiffs interrogatories seek detailed information about some 3, 480 cash stands. [Doc. No. 160, at pp. 12-17.] In addition, the stores vary in size, layout, and configuration, due in part to the acquisition of a significant number of stores from other retail companies, and defendant does not maintain the records necessary to respond to the level of detail plaintiff seeks. [Doc. No. 160, at p. 13.]

         Plaintiff proposed an e-mail procedure to collect the information requested in these interrogatories. The proposed procedure would require store managers in all of defendant's 870 stores in California to describe, photograph, and measure some 3, 480 register stations. [Doc. No. 160, at pp. 11-12.] However, the Court agrees with defendant that this store-by-store procedure is too burdensome, too expensive, and unworkable. The managers are not trained about cash station design and are not familiar with any standards or terminology that could be used to make the results accurate or reliable. As defendant contends, there is no guarantee that the managers would all consistently measure, photograph, and describe the same things so that the parties could rely on the information they provide. [Doc. No. 160, at p. 15.] ...

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