City of Roswell v. Bible

351 Ga.App. 828

833 S.E.2d 537

CITY OF ROSWELL

v.BIBLE et al.

A19A1310

Court of Appeals of Georgia.

September 16, 2019

Certiorari Denied May 4, 2020

Elarbee Thompson Sapp & Wilson, R. Read Gignilliat, Patrick L. Lail, Timothy M. Boughey, for appellant.

Johnson Fistel, Michael I. Fistel, Jr., William W. Stone, Mary Ellen Conner, David A. Weisz, for appellees.

McMillian, Presiding Judge.

In August 2017, David Bible and Brian Rogers (collectively "Appellees") filed suit against the City of Roswell (the "City"), seeking to represent a class of similarly situated firefighters on various claims arising from the City’s classification of the putative class members as part-time rather than full-time employees, thereby depriving them of full-time benefits under the City’s "Policy Manual." Following discovery limited to the issue of class certification, the trial court entered an order certifying the proposed class. On appeal, the City asserts that the trial court erred by (1) relying on the Appellees’ unsupported allegations; (2) finding that class issues predominate; (3) finding that Appellees met their burden of proof as to numerosity; and (4) finding that Appellees satisfy the typicality requirement. For the reasons that follow, we find no error and affirm.

The record shows that the City has a population of nearly 100,000 and employed over 100 firefighters each year during the class period.¹ In 2000, the City converted from a system of employing mostly full-time firefighters – with some reliance on volunteer firefighters – to a system of employing a significant number of "part-time" firefighters who are not entitled to the same benefits as full-time City employees.² Bible worked at the Roswell Fire Department (the "Department") in various capacities, including as a firefighter, fire lieutenant, fire captain, and emergency medical technician, from 1992 until his retirement in March 2017. Rogers worked at the Department from 2007 to 2018 as a firefighter, a fire captain, and a paramedic.³ All City employees, including the putative class members, are subject to the provisions of the City’s Policy Manual.⁴

City Ordinance 2.2.1 defines "regular" employees as those who work "full-time whether salary is hourly, weekly or some other pay rate," whereas part-time employees are those who "work at irregular intervals on a short-term basis." Section 3.8 of the Policy Manual further specifies that "[a]n employee whose standard workweek is forty hours or more is a regular full-time employee. An employee whose standard workweek is less than forty hours per week is a part-time employee." And finally, the Policy Manual provides that "[a] person appointed to a part-time position shall not be eligible for the privileges and benefits conferred through the [Policy Manual] to regular full-time City employees."⁵

Appellees allege that for each year during the class period, they worked forty hours or more per standard workweek "virtually every week." And they both testified at their depositions that they believed throughout their employment with the City that they were considered part-time employees and were therefore not eligible for most of the benefits available to full-time employees. In 2016, Rogers asked the City’s benefits manager about participating in the City’s retirement plan, and she told Rogers that he should do some research about how part-time employees are treated in other jurisdictions. Approximately one year later, Appellees filed their complaint against the City, asserting claims for breach of contract, breach of duty of good faith and fair dealing, quantum meruit, declaratory judgment, and attorney fees.

The trial court directed the parties to engage in discovery limited to the issue of class certification, and in June 2018, Appellees filed a motion to certify a class of similarly situated firefighters as follows:

All persons currently and/or formerly employed as firefighters by the Roswell Fire Department between August 29, 2011 and the date of the filing of the Complaint (inclusive), who worked forty (40) hours or more per standard workweek, but did not receive the benefits conferred upon regular full-time employees.

The City opposed the motion and moved to strike Rogers’ and Bible’s declarations and to suppress a former plaintiff’s deposition errata sheet. In its order granting class certification for the proposed class, the trial court found that the estimated 149 class members’ claims arise out of a single contract -- the Policy Manual -- and were confined to a limited time period of August 29, 2011 to August 29, 2017. The trial court ultimately concluded that the Appellees had satisfied each of the class certification requirements under OCGA § 9-11-23 (a) and that class issues predominate over the issues of any individual class members. This appeal followed.

1. In its first enumeration of error, the City simply asserts that the Appellees failed to meet their burden of proof in establishing class certification – without specifying which factor(s) the Appellees failed to establish – because the trial court improperly relied on the Appellees’ unsworn allegations in their complaint and other assertions outside their personal knowledge for "key factual propositions," including the allegations about the City and the Department’s benefits practices and the number of hours worked by Appellees and other class members.

We begin by noting that "[i]n determining the propriety of a class action, the first issue to be resolved is not whether the plaintiffs have stated a cause of action or may ultimately prevail on the merits, but whether the requirements of OCGA § 9-11-23 (a) have been met." (Citation and punctuation omitted.) EndoChoice Holdings, Inc. v. Raczewski , 351 Ga. App. 212, ––––, 830 S.E.2d 597 (2019). Trial courts are "vested with broad discretion to decide whether to certify a class, and absent an abuse of that discretion, we will not disturb the trial court’s decision." (Citation and punctuation omitted.) Id. at 601, 830 S.E.2d 597 ("Implicit in this deferential standard of review is a recognition of the fact-intensive basis of the certification inquiry and of the trial court’s inherent power to manage and control pending litigation.") (citation and punctuation omitted). And "we will affirm the trial court’s factual findings unless they are clearly erroneous." (Citation and punctuation omitted.) Id.

In order to certify a class, the trial court must find:

(1) [t]he class is so numerous that joinder of all members is impracticable;

(2) [t]here are questions of law or fact common to the class;

(3) [t]he claims or defenses of the representative parties are typical of the claims or defenses of the class; and

(4) [t]he representative parties will fairly and adequately protect the interests of the class.

OCGA § 9-11-23 (a). In addition, the trial court must determine that at least one ground included in OCGA § 9-11-23 (b) is satisfied. See SunTrust Bank v. Bickerstaff , 349 Ga. App. 794, 801 (2), 824 S.E.2d 717 (2019). Pertinent to this case, OCGA § 9-11-23 (b) (3) provides that a class action may be maintained if the trial court "finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy."

The City is correct that the Appellees, as the class proponents, bear the burden of proving that class certification is appropriate. See Georgia-Pacific Consumer Prods., LP v. Ratner , 295 Ga. 524, 526 (1), 762 S.E.2d 419 (2014). And, in doing so, they are required "to come forward with evidence to prove their satisfaction of the statutory requirements." Id. But see also City of Rome v. Hotels.com, LP , No. 4:05-CV-249-HLM, 2011 WL 13229684 at *4, 2011 U.S. Dist. LEXIS 158580 at *21 (II) (B) (N.D. Ga., March 21, 2011) (rules of evidence are not strictly enforced at the class certification stage because of the preliminary nature of the proceedings); Fisher v. Ciba Specialty Chems. Corp. , 238 F.R.D. 273, 279 (II) (A) (1) (S.D. Ala. 2006) ("Courts confronted with Rule 23 issues may consider evidence that may not ultimately be admissible at trial.").⁶ With these principles in mind, we will turn to the City’s specific arguments regarding the Appellees’ failure to establish that their claims are entitled to class treatment.

2. In its second enumeration of error, the City asserts that the Appellees cannot establish that common issues predominate over individual issues.

"The Rule 23 (b) (3) predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation." (Citation and punctuation omitted.) Brenntag Mid South, Inc. v. Smart , 308 Ga. App. 899, 906 (2) (b) (i), 710 S.E.2d 569 (2011). Class plaintiffs "may satisfy this requirement by showing that issues subject to class-wide proof predominate over issues requiring proof that is unique to the individual class members." (Citation and punctuation omitted.) Id. "In considering whether common questions will predominate, we look to the specific claims asserted." Raczewski , 351 Ga. App. at 603 (2), 830 S.E.2d 597.

Here, the trial court found that there is a single contract that applies only to City employees and that within that single document the plaintiffs are challenging only those provisions regarding benefits to full-time employees. Thus, where each of the class members’ claims arise out of identical terms in the Policy Manual and each of their claims are brought under the same causes of action, the issue of the City’s contractual liability will be determined on a class-wide basis. And we have previously held that similar claims arising from the breach of a single contract present a classic case for treatment as a class action. See, e.g., Unum Life Ins. Co. of America v. Crutchfield , 256 Ga. App. 582, 583, 568 S.E.2d 767 (2002) ("Georgia case law...