Guzman v. Chipotle Mexican Grill, Inc.

          ORDER DENYING MOTION FOR CLASS CERTIFICATION RE: DKT. NO. 82

          HAYWOOD S. GILLIAM, JR., UNITED STATES DISTRICT JUDGE

         Pending 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.

         I. BACKGROUND

         Plaintiffs 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, ^[1] 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.

         For 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^[2]: (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.

         In 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.^[3]

         Plaintiffs 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.^[4] 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).

         Plaintiffs 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 § 12951(a).

         Plaintiffs 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 as:

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 “Class”).

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.

         II. EVIDENTIARY OBJECTIONS

         In 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.

         III. CLASS CERTIFICATION STANDARD

         Federal 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.”).

         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).

         If the 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).

         The 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.

         IV. DISCUSSION

         As 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 in turn.

         A. Standing

         As a 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.

         The 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).

         Neither 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 ...