Van Bebber v. Dignity Health

ROBERT VAN BEBBER, on behalf of himself and all others similarly situated and the general public, Plaintiff, v. DIGNITY HEALTH, a California Corporation, dba MERCY MEDICAL CENTER—MERCED,and DOES 1 to 100, inclusive, Defendants.

Case No. 1:19-cv-00264-DAD-EPG

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

March 29, 2021

FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT PLAINTIFFS' MOTION FOR LEAVE TO FILE A THIRD AMENDED COMPLAINT BE DENIED AND THAT PLAINTIFFS' MOTION FOR CLASS CERTIFICATION BE GRANTED IN PART AND DENIED IN PART

(ECF. No. 35, 45)

OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN (14) DAYS

Currently pending before the Court are a motion for leave to file a Third Amended Complaint (ECF No. 35) and a motion for class certification (ECF No. 45) filed by Plaintiffs Robert Van Bebber, Rachel Clover, and Martha Ochoa ("Plaintiffs"). District Judge Dale A. Drozd referred the motions to the undersigned for issuance of findings and recommendations. (ECF Nos. 28, 58.) For the following reasons, the Court recommends that Plaintiffs' motion for leave to amend be denied and Plaintiffs' motion for class certification be granted in part and denied in part.

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I. BACKGROUND

A. Plaintiffs' Claims

This is a wage-and-hour class action suit stemming from various alleged state labor law violations by Defendant Dignity Health ("Defendant"), an acute care hospital in Merced, California. (See ECF No. 1-29.)

Plaintiff Robert Van Bebber initiated this action by filing a proposed class action complaint in the Superior Court for the County of Merced on July 13, 2017. (ECF Nos. 1-1, 1-2, 1-3.) The complaint alleged multiple violations of California wage and hour statutes on behalf of Robert Van Bebber individually and all others similarly situated, as well as on behalf of the general public. (Id.) Plaintiff Van Bebber filed a First Amended Complaint on September 13, 2017, and a Second Amended Complaint on January 14, 2019, adding Rachel Clover and Martha Ochoa as Plaintiffs. (ECF Nos. 1-4, 1-29.) The operative Second Amended Complaint alleges causes of action for: 1) Violation of Business and Professions Code §§ 17200, et seq.; 2) Failure to Pay All Wages (Labor Code §§ 200, et seq., 218, 226, 510, 511, 1194, 1198, and 2802); 3) Failure to Pay All Wages Due to Illegal Rounding; 4) Failure to Provide Meal Breaks (Labor Code §§ 226.7 and 512, et seq.); 5) Inaccurate Wage Statements (Labor Code § 226); 6) Violation of Labor Code §§ 200, et seq.; 7) Failure to Provide Rest Breaks (Labor Code § 226.7; Wage Order 5); and 8) Waiting Time Penalties (Labor Code § 200, et seq.) (ECF No. 1-29.)

B. Removal to Federal Court

Defendant filed a notice of removal on February 22, 2019. (ECF No. 1.) On March 22, 2019, Plaintiffs filed a motion to remand this case to state court. (ECF No. 9.) On August 30, 2019, District Judge Drozd entered an order denying Plaintiffs' motion for remand. (ECF No. 23.) The order reasoned, in relevant part, that Plaintiffs' claim for failure to pay overtime is preempted by § 301 of the Labor Management Relations Act ("LMRA"). (Id.)

On February 4, 2020, District Judge Drozd issued a Standing Order in Light of Judicial Emergency in the Eastern District of California. (ECF No. 28.) The standing order explained that District Judge Drozd was now the only active district judge in this division and implemented certain emergency procedures. (Id.) Among other things, the standing order referred motions forclass certification pursuant to Federal Rule of Civil Procedure 23 to the magistrate judge assigned to the case. (Id.)

C. Plaintiffs' Motion for Leave to Further Amend Complaint

On June 8, 2020, Plaintiffs filed their motion for leave to file a Third Amended Complaint. (ECF No. 35.) According to the motion, Plaintiffs seek to amend the operative complaint to add a Fair Labor Standards Act ("FLSA") claim pursuant to 29 U.S.C. § 201 et seq. due to District Judge Drozd's order finding that the LMRA preempted Plaintiffs' state law overtime claims because the new FLSA claims are not preempted. (ECF No. 35-1 at 6-7.) Further, Plaintiffs seek to amend the complaint to include two additional subclasses for Defendant's failure to properly calculate the regular rate for purposes of missed meal and rest period claims. (Id.) Defendant filed an opposition on June 23, 2020, and Plaintiffs filed a reply on June 30, 2020. (ECF Nos. 39, 40.) District Judge Drozd entered an order on January 25, 2021, referring Plaintiffs' motion for leave to amend to the undersigned for issuance of findings and recommendations. (ECF No. 58.)

This motion is now pending before this Court for issuance of findings and recommendations.

D. Defendant's Motion for Partial Summary Judgment

Defendant filed a motion for partial summary judgment on August 26, 2020. (ECF No. 43.) Defendant's motion seeks judgment on Plaintiffs' claim for unpaid wages due to illegal rounding, arguing that Defendant's practice of rounding time entries to the nearest quarter-hour is lawful because it is neutral on its face and as applied. (Id.) Plaintiffs filed an opposition to the motion for partial summary judgment on September 22, 2020, and Defendant filed a reply on September 28, 2020. (ECF Nos. 46, 47.)

The motion for summary judgment is now pending before District Judge Drozd.

E. Plaintiffs' Motion for Class Certification

On September 4, 2020, Plaintiffs filed their motion for class certification. (ECF No. 45.) The proposed overarching main class is defined as "[a]ll non-exempt hourly employees of Defendant who worked at the Mercy Medical Center Merced facility at least one (1) day fromJuly 13, 2013 through the date of class certification order." (Id. at 2.) Specifically, Plaintiffs seek certification of following classes and subclasses:¹

Class 1:

All non-exempt hourly employees of Defendant who worked at the Mercy Medical Center Merced facility at least one (1) day of more than eight (8) hours in a day or more than forty (40) hours in a week from July 13, 2013 through the date of class certification order and who worked overtime and earned additional pay during the overtime week, and were not paid premium overtime and/or double time at the employee's regular rate of pay. ("Regular Rate/Overtime Class");

Class 2:

All non-exempt hourly employees of Defendant who worked at least one (1) day at the Mercy Medical Center Merced facility from July 13, 2013 to the date of the class certification order and who were paid pursuant to Defendant's rounding policy and practice. ("Rounding Class").

Sub-Class 1:

All non-exempt hourly clinical employees of Defendant who worked at least one (1) day at the Mercy Medical Center Merced facility from July 13, 2013 to the date of the class certification order and who were paid pursuant to Defendant's rounding policy and practice. ("Rounding Clinical Sub-Class").

Class 3:

All non-exempt hourly patient care employees of Defendant who worked at least one (1) day at the Mercy Medical Center Merced facility and worked at least one (1) standby shift from January 14, 2015 to the date of the class certification order. ("On Call/Standby Class").

Class 4:

All non-exempt hourly employees of Defendant who worked at least one (1) day at the Mercy Medical Center Merced facility from July 13, 2013 through the date of class certification order who were not provided legally-compliant second meal period breaks when working more than a ten (10) hour shift ("Second Meal Break Class");

Sub-Class 2:

All hourly non-exempt employees of Defendant who worked at Mercy Medical Center Merced facility at least one (1) day from July 13, 2013 through date of class certification order, who signed a written meal period waiver. ("Meal Period Waiver Sub-class");

Sub-Class 3:

All non-exempt hourly clinical employees of Defendant who worked at least one (1) day at the Mercy Medical Center Merced facility from July 13, 2013 through the date of class certification order who were not provided legally-compliant second meal period breaks. ("Meal Break Sub-Class");Sub-Class 4:

All California employees who worked for Defendant from July 13, 2013 through the date of class certification order who were paid a missed meal period payment in a week that the employee also received a non-discretionary bonus or other type of pay along with their regular wages. ("Meal Period Regular Rate Sub-Class);

Class 5:

All non-exempt hourly employees of Defendant who worked at least one (1) day at the Mercy Medical Center Merced facility from July 13, 2016 through the date of class certification order who were provided a paystub (a.k.a. wage statement) from Defendant ("Pay Stub Class"). (This is a derivative class for all classes and sub-classes).

Class 6:

All non-exempt hourly clinical employees of Defendant who worked at least one (1) day at Mercy Medical Center Merced facility at any time from January 14, 2015 through the date of class certification, who were not provided with 10-minute rest periods for every 4 hours of work or major fraction thereof. ("Rest Break Class")

Sub-Class 5:

All California employees who worked for Defendant from July 13, 2013 through the date of class certification order who were paid a missed rest period payment in a week that the employee also received a non-discretionary bonus or other type of pay along with their regular wages. ("Rest Period Regular Rate Sub-Class);

Class 7:

All California based non-exempt hourly employees of Defendant who worked for Defendant at any time from January 14, 2016 through the date of class certification, who are no longer employed by Defendant and were not paid all their earned wages. ("Waiting Time Penalty Class"). (This is a derivative class for all classes and sub-classes).

(Id. at 2-5.) (Footnotes omitted.)

Proposed subclasses 4 and 5, the Meal Period Regular Rate Sub-Class and Rest Period Regular Rate Sub-Class, are not included in Plaintiffs' operative complaint and are the subject of Plaintiff's motion for leave to amend. (ECF No. 45 at 4; see also ECF...