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Kilby v. CVS Pharmacy, Inc.

United States District Court, S.D. California

May 31, 2018

NYKEYA KILBY, Plaintiff,
CVS PHARMACY, INC., Defendant.



         Plaintiff Nykeya Kilby brings this action to recover penalties pursuant to the California Labor Code Private Attorneys General Act of 2004 (“PAGA”) against her former employer Defendant CVS Pharmacy, Inc. (“CVS”) for failing to provide her with a suitable seat while operating a cash register. CVS moves for summary judgment in its favor on the merits of Plaintiff's PAGA claim. See Doc. No. 195. Plaintiff filed a response in opposition to the motion, to which CVS replied. See Doc. Nos. 200, 202, 203. The Court granted the parties leave to file supporting documents under seal, and permitted Plaintiff to file a sur-reply in support of her opposition to CVS's motion. See Doc. Nos. 210, 212-15. In addition, Plaintiff has filed supplemental declarations in support of her opposition, to which CVS objects on various grounds. See Doc. Nos. 227, 230. For the reasons set forth below, the Court DENIES CVS's motion for summary judgment.


         Plaintiff Nykeya Kilby is a former employee of CVS, where she worked as a Customer Service Representative (“Clerk/Cashier” hereafter) for approximately eight months in 2008. In this capacity, Plaintiff operated a cash register, straightened and stocked shelves, organized candy and batteries in front of the sales counter, stocked the tobacco section behind the sales counter, cleaned the register, vacuumed, gathered shopping carts and hand baskets, and handled trash.

         CVS is committed to providing excellent service to its customers. In CVS's business judgment, and for reasons which Plaintiff disputes, CVS contends that permitting a Clerk/Cashier to sit while performing his or her job duties would result in inefficiency, lost time, and poor customer service. Accordingly, when interviewing for the job, Plaintiff's interviewer explained the expectation that she stand while working, including while operating the cash register. Once hired, Plaintiff viewed training videos which reinforced the expectation that Clerk/Cashiers are expected to do a variety of work while standing. Plaintiff stood while she performed her job duties.

         Plaintiff spent approximately ninety percent of her time operating the cash register. Related duties such as “scanning, reaching, lifting, bagging, and processing customer payments” may be performed while seated.[2] Doc. No. 202-1 at 64.[3] CVS did not provide Plaintiff with a seat to use while operating the cash register. Therefore, she stood.

         Plaintiff premises this action on the contention that CVS should have provided her and other current or former employees with a seat while operating the cash register. Plaintiff alleges that by failing to do so, CVS violated California Labor Code § 1198, which makes it illegal to employ a person under conditions of labor prohibited by an applicable Wage Order issued by the Industrial Welfare Commission (“IWC”).[4] Section 14(A) of Wage Order 7-2001 (referred to hereafter as “Section 14(A)”), which applies to employers such as CVS, provides that “[a]ll working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.” Cal. Code Regs. Tit. 8 § 11070(14)(A). Plaintiff brings her PAGA claim in a representative capacity as an “aggrieved employee on behalf of . . . herself and other current or former employees” of CVS.[5] Cal. Lab. Code § 2699(a).

         CVS previously moved for summary judgment at to Plaintiff's PAGA claim, arguing that the “nature of the work” she performed as a Clerk/Cashier did not reasonably permit the use of a seat. The Court granted summary judgment in favor of CVS, concluding that “[i]f, as here, the majority of an employee's assigned duties must physically be performed while standing, and the employer expects and trains the employee to stand while doing so, the ‘nature of the work' requires standing, ” such that the employer need not provide a suitable seat to the employee while working. Doc. No. 136 at 10. Plaintiff appealed, and the United States Court of Appeals for the Ninth Circuit certified questions to the California Supreme Court concerning the correct interpretation of Section 14 of the Wage Order. See Doc. No. 147. In so doing, the circuit court noted that the California Supreme Court's ultimate interpretation of Section 14 would potentially have “far-reaching effects on California's citizens and businesses.” Id. at 10.

         The California Supreme Court heeded the Ninth Circuit's request, interpreting Section 14(A) as follows:

The “nature of the work” refers to an employee's tasks performed at a given location for which a right to a suitable seat is claimed, rather than a “holistic” consideration of the entire range of an employee's duties anywhere on the jobsite during a complete shift. If the tasks being performed at a given location reasonably permit sitting, and provision of a seat would not interfere with performance of any other tasks that may require standing, a seat is called for.

Kilby v. CVS Pharmacy, Inc., 63 Cal.4th 1, 8 (2016). The court also identified the relevant factors to consider when determining whether “the nature of the work reasonably permits the use of seats” under Section (14)(A):

When evaluating whether the “nature of the work reasonably permits the use of seats, ” courts must examine subsets of an employee's total tasks and duties by location, such as those performed at a cash register or a teller window, and consider whether it is feasible for an employee to perform each set of location-specific tasks while seated. Courts should look to the actual tasks performed, or reasonably expected to be performed, not to abstract characterizations, job titles, or descriptions that may or may not reflect the actual work performed. Tasks performed with more frequency or for a longer duration would be more germane to the seating inquiry than tasks performed briefly or infrequently.
A focus on actual work done and tasks grouped by their location alleviates the problems created by both plaintiffs' and defendants' approaches. An employee may be entitled to a seat to perform tasks at a particular location even if his job duties include other standing tasks, so long as provision of a seat would not interfere with performance of standing tasks. At the same time, consideration of all the actual tasks performed at a particular location would allow the court to consider the relationship between the standing and sitting tasks done there, the frequency and duration of those tasks with respect to each other, and whether sitting, or the frequency of transition between sitting and standing, would unreasonably interfere with other standing tasks or the quality and effectiveness of overall job performance.

Id. at 18. The court concluded by holding that “[a]n employer seeking to be excused from the requirement bears the burden of showing compliance is infeasible because no suitable seating exists.” Id. at 24.

         Upon receipt of the answers to its certified questions, the Ninth Circuit reversed and remanded this action, with an instruction “to the district court to reconsider [its previous rulings] in light of the California Supreme Court's opinion in Kilby v. Pharmacy, Inc., 368 P.3d 554 (Cal. 2016).” Doc. No. 155 at 2. The Court must now do so, as CVS once again moves for summary judgment as to Plaintiff's PAGA claim. CVS argues that the California Supreme Court's interpretation of the suitable seating requirement confirms that the nature of Plaintiff's work at CVS did not reasonably ...

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