Metropolitan News-Enterprise


Friday, August 11, 2006


Page 3


Albertson’s Managers Lose Bid to File Class Action for Overtime Pay


By a MetNews Staff Writer


An Alameda Superior Court judge did not abuse his discretion in ruling that a grocery store manager’s suit for overtime pay cannot proceed as a class action, the First District Court of Appeal ruled yesterday.

Affirming an order by Judge Ronald M. Sabraw, Div. One said Maurice Dunbar’s motion to certify a class of Albertson’s, Inc. grocery managers seeking overtime compensation was properly denied on the ground that the difficulty in resolving issues applicable to individual managers outweigh the benefits of a class action.

Dunbar, a former grocery manager for Albertson’s, alleged that the chain erroneously classified him as an executive employee exempt from the overtime wage laws. Although a grocery manager was second-in-command after the store manager, Dunbar argued, his job duties were primarily non-managerial, rendering him non-exempt from the laws governing payment of overtime.

Dunbar moved to certify a putative class consisting of approximately 900 individuals who since March 2000 had worked as grocery managers in any of the company’s nearly 500 stores.

Dunbar argued that common issues of classification—the facts that all putative class members had the same job title, same job description, same duties, and were subject to the same policies and procedures—predominated over individual issues of liability and damages. The classification of grocery managers as “executive positions” reflected a single corporate policy decision, he maintained, the grocery managers should be able to contest it in a single action.

In support of his motion, Dunbar submitted 92 declarations by managers stating that the great majority of their work time was devoted to non-managerial tasks, such as checking inventory, stocking shelves, and cashiering.

Albertson’s, contending that the issue of job duties varied too greatly among individual managers to compel class certification, responded with its own stack of manager declarations saying that most of the work performed was allegedly executive.

Sabraw found that individual issues were predominant, as deposition testimony suggested the work of many grocery managers varied significantly from store to store and week to week.

While it was true that a common issue existed as to whether stocking shelves and running cash registers were managerial tasks, he said, the court’s focus had to be a fact-specific inquiry—whether the work actually performed by any one general manager was so similar to the work performed by any other that the court could reasonably extrapolate findings from Dunbar to the class members.

The company’s common classification policy was insufficient to satisfy the commonality requirement for class certification, Sabraw concluded.

Dunbar argued on appeal that Sabraw applied “improper criteria” in deciding whether common questions were predominant in the case, because he failed to consider the manageability of individual issue and to weigh them against the common issues to determine which predominated.

 The justices rejected his argument.

Presiding Justice James J. Marchiano, writing for the court, said that the presence of individual liability issues had been only one factor, not the controlling factor, in Sabraw’s decision.

The justice wrote:

“The most important consideration, in the court’s view, was the significant variation in the grocery managers’ work from store to store and week to week. In light of that variation, the court evidently believed that very particularized individual liability determinations would be necessary. Accordingly, the court’s decision was not based on the mere presence of individual liability issues; it turned on the nature of those issues as shown by defendant’s evidence.”

Moreover, the panel concluded, in his order on Dunbar’s motion, Sabraw expressly stated he had weighed the evidence prior to his determination.

The case is Dunbar v. Albertsons, Inc., 06 S.O.S. 4179.


Copyright 2006, Metropolitan News Company