Judge Rejects Walmart’s Attempt to Dodge Class Action

SAN JOSE, Calif. (CN) – Walmart “does not have a leg to stand on,” a federal judge said late Friday when he denied its motion to decertify a class of employees accusing it of violating state labor law by failing to provide them with chairs.

Walmart has litigated the case, which has been held up in appeals court over the certification issue, for nine years. In 2012, U.S. District Judge Edward Davila certified a class of 80,000 cashiers, but Walmart appealed the ruling. The Ninth Circuit waited until 2016 to affirm, pending the outcome of another class action involving seating for employees, Kilby v. CVS.

“[T]he proper question is whether Wal-Mart has identified a subsequent development in the law or the evidence to justify revisiting class certification on its merits,” Davila wrote in his April 27 ruling. “Under that standard, Wal-Mart does not have a leg to stand on.”

Calling Walmart’s motion “an exercise in futility,” Davila found it did not present any new evidence to compel him to revisit his 2012 order, but merely rehashed its old argument that the work cashiers perform varies too much by store for the class to meet the typicality and commonality requirements for certification.

“[T]he court specifically addressed and rejected this exact argument the first time around, explaining that Wal-Mart’s 30(b)(6) witness Jackie Grube testified that all California cashiers perform the same essential tasks, which do not vary based on Wal-Mart’s identified factors,” Davila wrote. “To the extent Wal-Mart seeks to escape this admission with new evidence, the court’s prior observation still stands: the testimony of Wal-Mart’s 30(b)(6) witnesses is binding on Wal-Mart.”

He added, “Wal-Mart does not sufficiently describe how its newly raised evidence is meaningfully different than what was presented before.”

Davila said Walmart’s argument stood in direct conflict not only with his prior order, but also with the California Supreme Court’s decision in Kilby v. CVS, in which the state’s high court unanimously ruled that employees are entitled to a seat when their jobs permit it.

“If the tasks being performed at a given location reasonably permit sitting, and provision of a seat would not interfere with performance of any other tasks that may require standing, a seat is called for,” Justice Carol Corrigan wrote for the court in 2016.

In a separate order, Davila sanctioned Walmart by excluding parts of reports from two of its expert witnesses.

The plaintiffs had argued that Walmart provided certain information to three witnesses for help with their testimony, but did not disclose that same information to the plaintiffs until a week after the Feb. 28, 2018 deadline to file their opening expert reports.

Davila found Walmart provided ergonomist Dr. Jeffrey Fernandez with videos of cashiers performing their jobs and cashier transaction data, but did not give the plaintiffs the same videos and data until months later.

“The only way to restore both parties to equal footing with respect to the videos and register pull data is to exclude them,” Davila wrote in his sanctions order.

Walmart also provided 357,450 daily productivity reports (known as SWAS reports) to economist Dr. Deborah Foster, who was retained to give her opinion on the average productivity of seated versus standing cashiers, but the plaintiffs only received 600 such reports from Walmart.

He ordered Fernandez’s and Foster’s reports stricken to the extent that they relied on information not turned over to the plaintiffs, and also precluded Walmart from using those videos and register data.

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