United States District Court, N.D. California
ORDER DENYING MOTION FOR CLASS CERTIFICATION RE: DKT.
HAYWOOD S. GILLIAM, JR., UNITED STATES DISTRICT JUDGE
before the Court is the motion for class certification filed
by Plaintiffs Adriana Guzman, Juan Pablo Aldana Lira, and
Jonathan Poot. See Dkt. No. 82. The Court held a
hearing on the motion on June 18, 2019. See Dkt. No.
114. Having carefully considered the parties' arguments,
the Court DENIES the motion.
filed this putative class action on February 17, 2017, in San
Francisco County Superior Court, asserting claims for
employment discrimination, harassment, and retaliation under
California law. See Dkt. No. 1-1, Ex. A. Defendants
Chipotle Mexican Grill, Inc. and Chipotle Services, LLC,
removed this action on May 5, 2017. See Dkt. No. 1.
Plaintiffs allege that Defendants and their corporate
policies “systematically discriminate” against
their employees based on employees' “Hispanic race
and/or Mexican national origin.” See Dkt. No.
75 (“SAC”) ¶ 1. In the operative complaint,
Plaintiffs allege several types of discriminatory conduct
against individuals who are Hispanic or of Mexican national
origin, including: failing to promote otherwise qualified
individuals because they either speak English poorly or speak
English with an accent; falsifying or providing
unsubstantiated poor performance reviews; subjecting
individuals to verbal taunting, offensive language, and
racial jokes; and wrongfully terminating individuals who
would not quit on their own. See Id. ¶¶
33-42, 48-70, 74-81, 85-89. Based on these allegations,
Plaintiffs bring several causes of action against Defendants
under the California Fair Housing and Employment Act
(“FEHA”), Cal. Gov't Code §§ 12940
et seq., for disparate treatment employment
discrimination; disparate impact employment discrimination;
harassment on the basis of race or national origin; failure
to prevent discrimination and harassment; and retaliation.
See Id. ¶¶ 94-137.
purposes of class certification, however, Plaintiffs have
narrowed the scope of their allegations. Specifically,
Plaintiffs contend that Defendants have two uniform and
facially discriminatory policies that support class
certification as to their disparate impact, harassment, and
failure to prevent discrimination claims: (1) an unwritten
English-only policy, by which Defendants prohibit their
employees from speaking Spanish in the workplace
(“English-Only Policy”); and (2) a promotion
policy, which requires employees to demonstrate a subjective
level of English proficiency before they are eligible for
promotion to management positions (“Promotion
Policy”). See also Dkt. No. 82 at 1, 4-11.
support of these allegations, Plaintiffs proffer declarations
from several former employees, including the three named
Plaintiffs, who describe their individual experiences working
for Defendants in several California locations. See
Id. at 7-11; see also Dkt. No. 82-30, Exs. A-H
(Declarations of Adriana Guzman; Juan Pablo Aldana Lira;
Jonathan Poot; Carmen Cortez; Maria Gomez; Norma Mata; Cindy
Ortiz; and Francisco Ramirez Salinas). All eight former
employees assert that their managers spoke English,
see Dkt. No. 82-30, Ex. A ¶ 11, Ex. B ¶
11, Ex. C ¶ 11, Ex. D ¶ 9, Ex. E ¶ 8, Ex. F
¶ 9, Ex. G ¶ 9, Ex. H ¶ 9; six of the eight
were told that they could not speak Spanish at least some of
the time in the restaurant, see id., Ex. A
¶¶ 13- 15, Ex. C ¶¶ 13-14, Ex. D,
¶¶ 11-12, Ex. E ¶ 11, Ex. G ¶¶
11-13, Ex. H ¶¶ 11-13; and six of the eight
understood that they had to speak English “well”
or “perfect” to be eligible for further
promotion, see id., Ex. A ¶¶ 21-22, 25,
Ex. B ¶¶ 13-19, Ex. D ¶ 13, Ex. E ¶¶
10-11, Ex. F ¶¶ 11- 12, Ex. H ¶¶ 14,
16-17. Additionally, Plaintiffs cite to an anonymous
complaint from 2011 describing events in which two employees
were terminated for speaking Spanish, see Dkt. No.
82-26, Ex. 23 at 12, as well as allegations in several other
cases in which employees allege that they were harassed,
threatened with termination, or actually terminated for
speaking Spanish in the restaurant, see Dkt. Nos.
82-28; 82-29, Exs. A-F.
also point to several English language programs that
Defendants offered employees who were otherwise ready for
promotion. See Dkt. No. 5-6; see also Dkt.
No. 82-8, Ex. 7; Dkt. No. 82-9, Ex. 8; Dkt. No. 82-10, Ex. 9;
Dkt. No. 82-11, Ex. 10; Dkt. No. 82-12, Ex. 11. Although not
mandatory, Plaintiffs contend that the Language Development
Assistance Program (“LDAP”) and Immersion
Restaurant Program in particular were designed for “top
performers” who were otherwise “ready for
promotion” but lacked the requisite language skills.
See Dkt. No. 82 at 6-7; see also Dkt. Nos.
82-8, Ex. 7; Dkt. No. 82-9, Ex. 8; Dkt. No. 82-10, Ex. 9;
Dkt. No. 82-11, Ex. 10; Dkt. No. 82-12, Ex. 11 (dated August
2011). LDAP was advertised in both English and Spanish to
“top performer[s] whose only barrier to promotion is
[their] need for English language skills.” See
Dkt. No. 82-11, Ex. 10. And similarly, Defendants'
training materials explained that “[t]here will always
be high performers who have English language proficiency as a
barrier, ” but Defendants “can help them overcome
this barrier and achieve their goals.” See
Dkt. No. 82-9, Ex. 8 at 22 (dated October 2009). Plaintiffs
do not identify when these programs were in effect, though
Mr. Lira states that his manager told him in October 2011
that Defendants would no longer offer English
classes. See Dkt. No. 82-30, Ex. B ¶
19; see also Dkt. No. 82-9, Ex. 8 at 22 (dated
October 2009); Dkt. No. 82-12, Ex. 11 (dated August 2011).
allege that both the English-Only Policy and the Promotion
Policy served to harass employees who are Hispanic or of
Mexican national origin; are facially discriminatory; and are
a per se FEHA violation. See Dkt. No. 82 at 17-19;
Dkt. No. 107 at 5-6. FEHA prohibits employment discrimination
based on, inter alia, race, national origin, and
ancestry. See Cal. Gov't Code §§ 12940
et seq. More granularly, “[i]t is an unlawful
employment practice for an employer . . . to adopt or enforce
a policy that limits or prohibits the use of any language in
the workplace, unless . . . [t]he language restriction is
justified by business necessity” and “[t]he
employer has notified its employees of the circumstances and
the time when the language restriction is required to be
observed and of the consequences for violating the language
restriction.” See Cal. Gov't Code §
conclude that Defendants had no business necessity for the
English-Only Policy or the Promotion Policy, and on the basis
of these allegations, move to certify a single class, defined
All current and former hourly employees of Chipotle, who are
Hispanic and/or of Mexican national origin, and worked at
Chipotle restaurant locations in California during the period
November 14, 2011 until the resolution of this action (the
See Dkt. No. 82 at 2. The parties agree that the
class consists of approximately 43, 000 employees from 400
different California Chipotle restaurants. See Dkt.
No. 88 at 1.
addition to their opposition to the motion for class
certification, Defendants also filed briefs styled as
“evidentiary objections” to the declarations and
accompanying exhibits that Plaintiffs submitted in support of
their motion for class certification. See Dkt. Nos.
86, 87. However, Defendants' submissions do not comply
with the Civil Local Rules, which require that “[a]ny
evidentiary and procedural objections to the motion must be
contained within the [opposition] brief or memorandum,
” and that any such brief or memorandum may not exceed
25 pages. See Civil L.R. 7-3(a), 7-4(b). The Court
accordingly STRIKES the evidentiary
objections from the record and does not consider them for
purposes of this order.
CLASS CERTIFICATION STANDARD
Rule of Civil Procedure 23 governs class actions, including
the issue of class certification. Class certification is a
two-step process. To warrant class certification, a plaintiff
“bears the burden of demonstrating that she has met
each of the four requirements of Rule 23(a) and at least one
of the requirements of Rule 23(b).” Zinser v.
Accufix Research Inst., Inc., 253 F.3d 1180, 1186 (9th
Cir.), opinion amended on denial of reh'g, 273
F.3d 1266 (9th Cir. 2001); see also Wal-Mart Stores, Inc.
v. Dukes, 564 U.S. 338, 351 (2011) (“A party
seeking class certification must affirmatively demonstrate
[her] compliance with the Rule.”).
23(a) provides that a district court may certify a class only
if: “(1) the class is so numerous that joinder of all
members is impracticable; (2) there are questions of law or
fact common to the class; (3) the claims or defenses of the
representative parties are typical of the claims or defenses
of the class; and (4) the representative parties will fairly
and adequately protect the interests of the class.”
Fed.R.Civ.P. 23(a). That is, the class must satisfy the
requirements of numerosity, commonality, typicality, and
adequacy of representation to maintain a class action.
Mazza v. Am. Honda Motor Co., Inc., 666 F.3d 581,
588 (9th Cir. 2012).
four prerequisites of Rule 23(a) are met, a court also must
find that the plaintiff “satisf[ies] through
evidentiary proof” one of the three subsections of Rule
23(b). Comcast Corp. v. Behrend, 569 U.S. 27, 33
(2013). Plaintiffs assert that they meet the requirements of
both Rule 23(b)(2) and 23(b)(3). See Dkt. No. 82 at
15-16, & n.62. Rule 23(b)(2) provides for certification
where “the party opposing the class has acted or
refused to act on grounds that apply generally to the class,
so that final injunctive relief or corresponding declaratory
relief is appropriate respecting the class as a whole.”
Fed.R.Civ.P. 23(b)(2). Rule 23(b)(3), in turn, applies where
there is both “predominance” and
“superiority, ” meaning “questions of law
or fact common to class members predominate over any
questions affecting only individual members, and . . . a
class action is superior to other available methods for
fairly and efficiently adjudicating the controversy.”
See Fed. R. Civ. P. 23(b)(3).
Court's “class-certification analysis must be
‘rigorous' and may ‘entail some overlap with
the merits of the plaintiff's underlying
claim.'” Amgen Inc. v. Connecticut Ret. Plans
& Trust Funds, 568 U.S. 455, 465-66 (2013) (citing
Dukes, 564 U.S. 350-51). However, “Rule 23
grants courts no license to engage in free-ranging merits
inquiries at the certification stage, ” and
“[m]erits questions may be considered to the
extent--but only to the extent--that they are relevant to
determining whether the Rule 23 prerequisites for class
certification are satisfied.” Id. at 1194- 95;
see also Ellis v. Costco Wholesale Corp., 657 F.3d
970, 981 (9th Cir. 2011) (“[A] district court
must consider the merits if they overlap with the
Rule 23(a) requirements.”). The issue to be decided in
a certification motion is whether the case should be
“conducted by and on behalf of the individual named
parties only” or as a class. See Dukes, 564
U.S. at 348.
noted above, Plaintiffs move to certify a class of
approximately 43, 000 “current and former hourly
employees of Chipotle, who are Hispanic and/or of Mexican
national origin and worked at Chipotle restaurant locations
in California” from November 14, 2011, to the present.
See Dkt. No. 82 at 2. In response, Defendants assert
that (1) Plaintiffs lack constitutional standing; (2) the
class definition is overly broad; (3) Plaintiffs have failed
to meet the requirements of Federal Rules of Civil Procedure
23(a); and (4) Plaintiffs have failed to the meet the
requirements of Federal Rule of Civil Procedure 23(b).
See Dkt. No. 88. The Court addresses each argument
preliminary matter, Defendants contend that the named
Plaintiffs lack Article III standing to bring their claims
because they were not injured by Defendants' alleged
policies. See Dkt. No. 88 at 10-11. According to
Defendants, even if the Court were to assume Defendants have
an English-Only Policy and a Promotion Policy, Plaintiffs
Guzman, Lira, and Poot did not personally experience them.
Id. Defendants argue that named Plaintiffs were not
prevented from speaking Spanish at their respective
restaurants; Plaintiffs Guzman and Lira were promoted several
times during the course of their employment; and Plaintiff
Poot never even sought a promotion. Id. at 11.
Ninth Circuit has held that at least one named plaintiff must
“demonstrate her individual standing to bring a
claim” before “the court proceeds to consider
whether the Rule 23(a) prerequisites for class certification
have been met.” Melendres v. Arpaio, 784 F.3d
1254, 1261-62 (9th Cir. 2015). To establish Article III
standing, a plaintiff must show an injury-in-fact that is:
(1) concrete and particularized, as well as actual or
imminent; (2) fairly traceable to the challenged action of
the defendant; and (3) likely redressable by a favorable
ruling from the court. See Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61 (1992). “A
plaintiff must demonstrate standing for each claim he or she
seeks to press and for each form of relief sought.”
Wash. Envtl. Council v. Bellon, 732 F.3d 1131, 1139
(9th Cir. 2013) (citing DaimlerChrysler Corp. v.
Cuno, 547 U.S. 332, 352 (2006)). However,
“‘the manner and degree of evidence
required'” for the plaintiff to meet her burden of
proof to establish standing depends on the
“‘stage of the litigation.'”
Id. (quoting Lujan, 504 U.S. at 561). As
the Ninth Circuit has acknowledged, “the manner and
degree of evidence required at the preliminary class
certification stage is not the same as at the successive
stages of the litigation-i.e., at trial.” Sali v.
Corona Reg'l Med. Ctr., 909 F.3d 996, 1006 (9th Cir.
2018) (quotation omitted).
the Supreme Court nor the Ninth Circuit has identified the
precise evidentiary burden a putative class representative
must satisfy to establish her standing at the class
certification stage. However, the Ninth Circuit has recently
suggested that the putative class representatives must
“present evidence” to establish Article III
standing, rather than merely resting on their allegations at
the class certification stage. See B.K. by next friend
Tinsley v. Snyder, 922 F.3d 957, 966 (9th Cir. 2019);
cf. Lujan, 504 U.S. at 561 (noting that although
“[a]t the pleading stage, general factual allegations
of injury resulting from the defendant's conduct may
suffice, ” in responding to a summary judgment motion,
“the plaintiff can no longer rest on such mere
allegations”). District courts have similarly concluded
that putative class representatives “must demonstrate,
not merely allege, that they have suffered an injury-in-fact
to establish Article III standing to bring the claims
asserted on behalf of the [class].” Evans v. Linden
Research, Inc., No. C 11-01078 DMR, 2012 WL 5877579, at
*6 (N.D. Cal. Nov. 20, 2012); see also Torres v. Air to
Ground Servs., Inc., 300 F.R.D. 386, 393 (C.D. Cal.
2014) (finding that standing must withstand a “rigorous
analysis”) (citing Dukes, 564 U.S. at 351);
Sethavanish v. ZonePerfect Nutrition Co., No.
12-2907-SC, 2014 WL 580696, at *3 (N.D. Cal. Feb. 13, 2014)
(“At class certification, the plaintiff ...