Arrison v. Walmart Inc.

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Kathy Arrison, et al., Plaintiffs, v. Walmart Incorporated, et al., Defendants.

No. CV-21-00481-PHX-SMB

United States District Court, D. Arizona

July 10, 2023

ORDER

Honorable Susan M. Brnovich, United States District Judge

Before the Court is Plaintiffs Kathy Arrison and Tristan Smith's Motion for Rule 23 Class Certification (Doc. 55). Defendants Walmart, Inc. and Wal-Mart Associates, Inc. (collectively “Walmart”) filed a Response (Doc. 65), and Plaintiff's filed a Reply (Doc. 72). Oral argument was held on June 28, 2023. After considering the parties' arguments, the Court will grant Plaintiffs' Motion for the reasons discussed herein.

I. BACKGROUND

Plaintiffs seek Rule 23 class certification on behalf of a punitive class of Arizona non-exempt Walmart associates alleging claims for unpaid wages under the Arizona Wage Act and civil penalties for related record keeping violations. From April 10, 2022 through February 2022, Walmart began a nationwide policy requiring all associates at retail locations to complete a mandatory COVID screening before their shift. (Docs. 55 at 7; 65 at 5.) Screenings entailed walking to a designated location, standing in line at least six feet apart, scanning one's badge or recording an employee identification number, answering a series of five-to-seven questions relating to symptoms and COVID exposure and having one's temperature taken. (Docs. 55 at 7; 65 at 7.) After completing the screening, associates were permitted to clock-in, but only at the appropriate time their shift was scheduled to begin. (Doc. 55 at 7.)

Plaintiff alleges Walmart did not pay associates for screenings held on April 10, 2022. (Id.) On April 11, 2022, Walmart began paying associates an extra daily fixed sum equivalent to five minutes' work for the screenings. (Id.; Doc. 65 at 5.) Walmart alleges managers were instructed to manually add five minutes of pay for any associates who underwent screenings prior to April 11. (Doc. 65 at 11.) Walmart also allowed associates to increase their time entries if the screenings took longer than five minutes. (Docs. 55 at 8; 65 at 5.) Plaintiffs allege less than two percent of shifts were so adjusted, and that some employees, including Arrison and Smith, “labored under the understanding they were not being paid at all for the COVID screening.” (Doc. 55 at 8.) Plaintiffs Arrison and Smith did not adjust their time entries with Walmart. (Doc. 65 at 5.) Plaintiffs contend the additional daily five minutes of pay was distributed in a manner that was not visible to associates. (Doc. 55 at 7.)

Throughout this period, Walmart used a timekeeping program for all non-exempt Arizona associates. (Doc. 55 at 10-11.) This computer system tracked associate's time down to the 1/1000th of a second, and Walmart rounded up pay to the nearest 1/100th of the hour-every 36 seconds. (Id. at 11.) Walmart logged electronic timestamps when each associate answered their screening questions. (Id.)

In May 2020, Walmart rolled out a mobile phone application allowing Arizona associates the option to complete their screening on their devices from any location. (Doc. 65 at 7-8.) If an associate used the application to self-screen, Walmart instructed associates to do so within 15 minutes of their scheduled shifts. (Id. at 8.) Upon arriving to work, associates were to display their mobile device at the screening table to demonstrate they had cleared the screening and underwent a temperature check. (Id.) After verifying the screening completion, or undergoing the screening at the table upon arrival, the associate was permitted to enter the store and clock-in when their shift was scheduled to begin. (Id.)

Walmart permitted associates to arrive at the store before their scheduled shift “for reasons such as public transportation, carpool arrangements, or to shop.” (Id.) Associates arriving early to their shift-after completing the screening-could enter the building and engage in personal activities. (Id.) When it was time to clock-in, associates could use a timeclock or a computer program available on terminals throughout the store. (Id.) Beginning April 2021, Walmart provided associates the option to clock-in through the mobile phone application. (Id. at 10.)

Plaintiffs originally sought damages for failing to pay for COVID screening time and post-screening time (the time between completion of screening and clocking in). Now, Plaintiffs only seek certification and damages for the failure to pay post-screening time during the time period of April 10, 2020 to February 27, 2020 (proposed class), and COVID screening time only for April 10, 2020 (subclass). Furthermore, after this Motion was filed the Court granted summary judgment in favor of Walmart on Plaintiffs' recordkeeping claim, which will therefore not be addressed in this Motion.

II. LEGAL STANDARD

“Parties seeking class certification bear the burden of demonstrating that they have met each of the four requirements of Federal Rule of Civil Procedure 23(a) and at least one of the requirements of Rule 23(b).” Ellis v. Costco Wholesale Corp., 657 F.3d 970, 979-80 (9th Cir. 2011) (citing Zinser v. Accufix Rsch. Inst., Inc., 253 F.3d 1180, 1186 (9th Cir. 2001)). Rule 23(a)-(b) read as follows:

(a) Prerequisites. One or more members of a class may sue or be sued as representative parties on behalf of all members 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.

(b) Types of Class Actions. A class action may be maintained if Rule 23(a) is satisfied and if:

(1) prosecuting separate actions by or against individual class members would create a risk of:

(A) inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or

(B) adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests;

(2) 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; or

(3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include:

(A) the class members' interests in individually controlling the prosecution or defense of separate actions;

(B) the extent and nature of any litigation concerning the controversy already begun by or against class members;

(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and

(D) the likely difficulties in managing a class action.

A plaintiff seeking class certification must “affirmatively demonstrate his compliance with the Rule-that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). Likewise, when considering class certification courts must engage in “a rigorous analysis.” Id. at 350-51 (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982)). The Rule 23 analysis may “entail some overlap with the merits of the plaintiff's underlying claim,” id. at 351, but it “grants courts no license to engage in free-ranging merits inquiries at the certification stage,” Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, 568 U.S. 455, 466 (2013). “Merits 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.; see also United Steel, Paper & Forestry, Rubber, Mfg. Energy, Allied Indus. & Serv. Workers Int'l Union, AFL-CIO v. ConocoPhillips Co., 593 F.3d 802, 808 (9th Cir. 2010) (“Although certification inquiries such as commonality, typicality, and predominance might properly call for some substantive inquiry, the court may not go so far . . . as to judge the validity of these claims.” (cleaned up)). In fact, “neither the possibility that a plaintiff will be unable to prove his allegations, nor the possibility that the later course of the suit might unforeseeably prove the original decision to certify the class wrong, is a basis for declining to certify a class which apparently satisfies [Rule 23].” United Steel, 593 F.3d at 809 (quoting Blackie v. Barrack, 524 F.2d 891, 901 (9th Cir. 1975)).

Nevertheless, “plaintiffs must prove the facts necessary to carry the burden of establishing that the prerequisites of Rule 23 are satisfied by a preponderance of the evidence.” Olean Wholesale Grocery Coop., Inc., v. Bumble Bee Foods LLC, 31 F.4th 651, 665 (9th Cir. 2022). “Failure to meet any one of the requirements set forth in Rule 23 precludes class certification.” Miller v. Am. Standard Ins. Co. of Wis., 759 F.Supp.2d 1144, 1146 (D. Ariz. 2010).

III. DISCUSSION

A. Rule 23(a)

1. Numerosity

Under the numerosity requirement, a proposed class of at least 40 members is typically satisfactory. See Horton v. USAA Cas. Ins. Co., 266 F.R.D. 360, 365 (D. Ariz. 2009). Here, Plaintiffs cite to Walmart's records showing there are approximately 79,970...