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Humes v. First Student, Inc.

United States District Court, E.D. California

July 14, 2017

DELORES HUMES, an individual; and DIANE ABELLA, individually and on behalf of all others similarly situated, Plaintiffs,
v.
FIRST STUDENT, INC., and DOES 1 through 100, inclusive. Defendants.

          ORDER DENYING PLAINTIFF'S MOTION FOR CLASS CERTIFICATION (Doc. No. 33) ORDER SETTING TELEPHONIC STATUS CONFERENCE

          BARBARA A. MCAULIFFE UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         Plaintiff Delores Humes and Diane Abella (“Plaintiffs”), individually and on behalf of all others similarly situated, filed a class action complaint against Defendant First Student, Inc. (“Defendant” or “First Student”) and various Doe defendants in Fresno County Superior Court on October 28, 2015. The matter was removed to this Court on December 11, 2015.[1]

         Plaintiffs now move for class certification pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(3). (Doc. 30.) A hearing was held on July 7, 2017, before the Honorable Barbara A. McAuliffe. Counsel Carol Gillam appeared on behalf of Plaintiffs Delores Humes and Diane Abella. Counsel David Dow and Irene Fitzgerald appeared on behalf of First Student Inc. Having considered the moving, opposition and reply papers and the parties' arguments, Plaintiffs' Motion for Class Certification shall be DENIED.

         II. BACKGROUND

         A. Factual and Procedural Background

         First Student is a transportation company providing school bus services to school districts across the country, including Fresno, California. (Doc. 33, p. 4.) From its Fresno location (“Fresno Yard”), First Student provides bus service for both special education students and traditional school bus routes. The Fresno Yard also provides charter services. (Id.)

         Plaintiff Delores Humes was formerly employed by First Student as a bus driver out of its Fresno Yard. Plaintiff Diane Abella is currently employed by First Student as a bus driver out of its Fresno Yard. Plaintiffs contend that during their employment, First Student failed to pay its bus drivers for all time worked, including all time that the drivers were subject to First Student's control.

         Plaintiffs initially filed this action in the Fresno County Superior Court. (Plaintiffs' Complaint, Doc. 1-1.) On December 11, 2015, First Student removed the case to this Court based on federal question jurisdiction and the Class Action Fairness Act, 28 U.S.C. § 1332(d). (Doc. 1.) Plaintiffs' class action complaint alleges that First Student: (1) failed to pay regular wages in violation of Labor Code §§ 201-203 (unpaid wages); (2) failed to pay wages within the time allowed in violation of Labor Code § 204 (untimely wages); (3) failed to pay minimum wage in violation of Labor Code §§ 1194, 1194.2, 1198 and IWC Wage Order No. 9-2001 (minimum wage); (4) failed to provide accurate itemized statements in violation of Labor Code §226 (inaccurate wage statements); (5) violated Business and Professions Code §17200 et seq. with unlawful, unfair, and fraudulent business practices; and (6) breached an oral contract. (Doc. 1-1; Compl., pp. 11-19.)

         Plaintiffs moved for class certification on December 23, 2016. (Doc. 30.) First Student opposed the motion on March 24, 2017, and Plaintiffs replied on June 15, 2017.[2] (Docs. 33, 34.)

         B. Proposed Class

         Plaintiffs move to certify the following class:

All current and former bus drivers who were employed by First Student at its Fresno Yard located at 2805 South East Avenue in Fresno, California since October 28, 2011 to the present.

(Doc. 31, p. 2.)

         Alternatively, Plaintiffs seeks to certify the following classes:

(1) Unpaid Wages Class: Plaintiffs and all other persons who were employed by Defendant as school bus drivers at Defendant's Fresno, California yard, at any time from October 28, 2011, and continuing to the present who were not paid all wages due by Defendant.
(2) Untimely Wages Class: Plaintiff and all other persons who were employed by Defendant as school bus drivers at Defendant's Fresno, California yard, at any time from October 28, 2011, and continuing to the present who were not paid wages due by Defendant on a timely basis.
(3) Minimum Wages Class: Plaintiff and all other persons who were employed by Defendant as school bus drivers at Defendant's Fresno, California yard, at any time from October 28, 2011, and continuing to the present, who were not paid at least minimum wages for work performed for Defendant.
(4) Inaccurate Wage Statement Class: Plaintiff and all other persons employed by Defendant as school bus drivers at Defendant's Fresno, California yard, at any time from October 28, 2011, and continuing to the present who were provided with inaccurate wage statements by Defendant.

(Id.)

         C. Overview of First Student's Operations at the Fresno Yard

         From the Fresno Yard, First Student provides bus service for special education students, who are picked up and dropped off at their homes, and for traditional bus routes, where the bus picks up and later drops off a number of students at designated bus stops. (Doc. 33, p. 4.) The Fresno Yard also provides charter services, such as transporting students to field trips, sporting events or amusement activities like the beach or amusement parks. (Id.)

         At the time of hire and annually thereafter, bus drivers are provided with copies of First Student's National Handbook. (Doc. 33-1, Declaration of Sharon Murphy (“Murphy Decl.”), ¶ 4 and Ex. A.) The National Handbook includes general company-wide policies; however, those policies are superseded by any Collective Bargaining Agreement (“CBA”) that may be in place. (Id.) All drivers at the Fresno Yard are subject to a CBA, and have been since 2007. (Id. at ¶ 5.) The CBAs include provisions relating to hours worked, hourly wage rates, guaranteed hours and how drivers are to be paid. (Id. and Exs. B, C and D.) The CBAs have grievance-arbitration provisions permitting drivers to pursue claims for unpaid wages. (Exs. B, C and D to Murphy Decl.). Under the CBAs, drivers are guaranteed a certain number of hours of pay per day even if they work less than the guaranteed number of hours. (Id.) Drivers who have both an a.m. and p.m. route are guaranteed four hours of pay if they work both portions of their shift. (Murphy Decl. ¶ 6.) Drivers who are also scheduled for a midday route are also guaranteed four hours of pay. (Id.) Cover drivers are guaranteed six hours of pay per day, except during the summer school season, when they are guaranteed four hours. (Id. at ¶ 7.)

         If a driver completes his or her work in less than the guaranteed hours, the driver is still paid the full hours guarantee. (Id. at ¶ 6.) The driver can be required to work for the guaranteed number of hours, such as by doing filing work after completing his or her route, but almost always the driver is permitted to leave and is still paid the full hours guarantee. (Id.) In contrast, if the actual work time exceeds the hours guarantee, drivers are paid for additional time reported. (Id.)

         Most drivers are assigned to drive either a special education or a regular school bus “home-to-school” route. (Murphy Decl. at ¶¶ 7, 9.) Some drivers also work as “cover drivers” where they do not have a permanent route, but fill-in for absent drivers. (Id.)

         A Route Schedule is developed based on the pickup and drop off times for the student, the amount of time it should take to drive to and from the Fresno Yard and the school or first stop of the route and the amount of time allocated for performing pre- and post-trip inspections of the buses, cleaning the buses, filling out paperwork during the route, and walking to and from the location office and the buses. (Id. at ¶¶ 10-11.) The Route Schedules are then used to develop the drivers' work schedules, which delineate the time drivers are to report work and the time drivers will end their shift. (Id.) The Route Schedules are created at the beginning of the year, but are updated continuously throughout the year. (Id.) The Route Schedules also are subject to adjustment if the actual time it takes to drive the route is longer or shorter than originally expected. (Id.) As a result, each driver's scheduled start and end time may change throughout the school year. (Id.) Further, each bus route has a different scheduled start and stop time, ...


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