| Alix v Wal-Mart Stores, Inc. |
| 2008 NY Slip Op 09509 [57 AD3d 1044] |
| December 4, 2008 |
| Appellate Division, Third Department |
| Bryan Alix et al., on Behalf of Themselves and All Others SimilarlySituated, Appellants, v Wal-Mart Stores, Inc., Respondent. |
—[*1] Greenberg Traurig, L.L.P., Boston, Mass. (Donald R. Frederico of counsel, pro hac vice), forrespondent.
Kavanagh, J. Appeal from an order of the Supreme Court (Platkin, J.), entered June 12, 2007 inAlbany County, which, among other things, denied plaintiffs' motion for class action certification.
Plaintiffs, two former employees of defendant, commenced this action alleging that defendant failedto properly compensate them and other similarly situated employees and former employees in violationof 12 NYCRR part 142 and Labor Law articles 6 and 19.[FN1]Plaintiffs thereafter moved for class action certification pursuant to CPLR article 9, and sought to bedesignated as representatives of a proposed class of approximately 200,000 individuals employed orformerly employed by defendant in its stores located throughout the state. Supreme Court denied themotion and plaintiffs now appeal.[*2]
To obtain class action certification, a party must establish that"the class is so numerous that joinder of all members, whether otherwise required or permitted, isimpracticable"; that questions of law or fact exist that are common to the entire class and predominateover any questions that affect only individual members; that the claims or defenses of the representativeplaintiffs typify those of the entire class; that the nominative plaintiffs will fairly and adequately protectthe interests of the entire class; and that alternatives are not available that are superior to a class actionin terms of insuring a "fair and efficient adjudication of the controversy" (CPLR 901 [a] [1], [2], [3],[4], [5]; see Rife v Barnes Firm, P.C., 48AD3d 1228, 1229 [2008], lv dismissed in part and denied in part 10 NY3d 910 [2008];Rallis v City of New York, 3 AD3d525, 526 [2004]; Solomon v Bell Atl.Corp., 9 AD3d 49, 51-52 [2004]). Each requirement is an essential prerequisite to classaction certification, and whether each has been established by the representative plaintiffs is a decisionthat "rests within the sound discretion of the trial court" (Small v Lorillard Tobacco Co., 94NY2d 43, 52 [1999]; see CLC/CFILiquidating Trust v Bloomingdale's, Inc., 50 AD3d 446, 447 [2008]; Lauer v New YorkTel. Co., 231 AD2d 126, 130 [1997]). Here, Supreme Court concluded that plaintiffs failed toestablish the existence of any of these prerequisites and, as a result, denied class action certification.We agree and affirm the court's order.
Plaintiffs' complaint, in essence, is that defendant used its store level managers to implement acorporate-wide policy that systematically deprived many of its employees of proper compensationthrough the manipulation of time records and the implementation of employment practices designed tocompel employees to work off the clock without compensation. In pursuit of these claims, plaintiffspropose a class that includes "persons employed by defendant as hourly employees . . . inthe State of New York at any time on or after August 9, 1999 . . . whether employed byWal-Mart stores, SuperCenters or Sam's Club stores." As defined, it would include 200,000 currentand former hourly associates employed over a 12-year period in 110 stores owned and operated bydefendant in the state. Initially, it is noted that the class, as proposed by plaintiffs, would includenumerous individuals who deny that they were victimized by these workplace practices employed bydefendant and deny that they were not properly compensated for the time they actually worked (see Batas v Prudential Ins. Co. of Am., 37AD3d 320 [2007]). In that regard, the record contains deposition testimony and 49 affidavits fromcurrent and former employees of defendant who deny that they were required to work without pay,work through breaks, work off the clock, or were denied overtime compensation, as alleged byplaintiffs.
Both plaintiffs allege that they were required to work off the clock and, as a result, were notproperly compensated for the work that they performed during this period. Neither claims that theirtime records were in any way altered or manipulated by supervisory personnel or that they werevictimized by the deceptive practices that they maintain were perpetrated against other members of theproposed class. Their claims, as stated, are markedly different from that of the proposedclass—and that contrast is made even more evident by the fact that neither alleges that they wereforced or directed to work off the clock by any of defendant's supervisory personnel. As such, plaintiffshave not satisfied the prerequisite of typicality (see CPLR 901 [a] [3]; Small v LorillardTobacco Co., 94 NY2d at 53; Ackerman v Price Waterhouse, 252 AD2d 179, 201[1998]).
Plaintiffs must also show that they can fairly and adequately protect the interests of all of themembers of the proposed class who they seek to represent. However, by including all employees paidon an hourly basis who were employed by defendant during this 12-year period, the proposed classincludes approximately 8,000 managerial employees, many of whom were involved in implementing thelabor practices that are the subject of plaintiffs' complaint. The [*3]conflict that exists between the interests of these managerial personneland the other members of the proposed class is self-evident and so substantial that it is simply notpossible to conclude that plaintiffs can fairly and adequately represent the interest of each member ofthe class (see CPLR 901 [a] [4]).
Similarly, plaintiffs have not established that "there are questions of law or fact common to the classwhich predominate over any questions affecting only individual members" (CPLR 901 [a] [2]). In thatregard, it is not enough for plaintiffs to prove that issues exist that are common to the entire class, oreven that they are substantial and significant; plaintiffs must show that these issues predominate overunique circumstances that may well characterize each aggrieved employee's complaint (seeLieberman v 293 Mediterranean Mkt. Corp., 303 AD2d 560, 561 [2003]; Mitchell vBarrios-Paoli, 253 AD2d 281, 291 [1999]). Here, plaintiffs have alleged essentially four improperemployment practices that they contend were routinely implemented by defendant to depriveemployees of proper compensation. Specifically, they charge that defendant's supervisory personnelwere encouraged to manipulate employee time cards so as to avoid paying employees for wagesearned during rest breaks or overtime or, in some instances, for the entire time that an employee mayhave worked during a shift.[FN2]Plaintiffs also allege that supervisory personnel were ordered to reduce payroll by the arbitraryelimination of personnel which, in turn, created staff shortages that required other employees to workoff the clock without compensation to complete their assigned duties.
Establishing the existence of these practices and their impact on a given employee wouldnecessarily require a detailed analysis of the specifics of each employee's complaint. For example, thedamages to which each class member would be entitled would necessarily depend upon his or herindividual circumstances and could only be accurately ascertained by a fact-specific inquiry into eachindividual complaint (see Evans v City of Johnstown, 97 AD2d 1, 3 [1983]). Such an inquiry,because of the proposed size of the proposed class, would simply overwhelm consideration of theissues common to the entire class and compromise any goal that might otherwise be achieved by classaction certification.
Recognizing the problems inherent in such a fact-specific analysis, plaintiffs propose to employ astatistical analysis of defendant's corporate payroll records to establish the existence of these workplacepractices and their impact on defendant's personnel. While these records may establish that employeetime cards were changed or altered, this fact, standing alone, does not prove that these entries wereimproper or part of a deliberate and purposeful scheme designed to deprive employees of their lawfulcompensation. To reach such a conclusion, the admission of these records would almost certainly haveto be supplemented by testimony from witnesses describing the specific circumstances by which theseentries were made that resulted in changes [*4]on an employee's timecard. In addition, if such a statistical analysis is admissible,[FN3]fundamental fairness would require that defendant be allowed the right to explore the premise uponwhich the expert's conclusions are based, and such an inquiry could require a detailed examination ofmany of the entries upon which the expert relied to reach his final conclusion (see Evans v City ofJohnstown, 97 AD2d at 3).
Finally, plaintiffs failed to establish that a class action is superior to other methods available to themto pursue these claims (see CPLR 901 [a] [5]; Small v Lorillard Tobacco Co., 94NY2d at 54; Weinberg v Hertz Corp., 69 NY2d 979, 981-982 [1987]; Brady v State ofNew York, 172 AD2d 17 [1991], affd 80 NY2d 596 [1992], cert denied 509US 905 [1993]). Specifically, an administrative remedy is available by which plaintiffs, in their status asemployees, could file wage related complaints with the Department of Labor (see Labor Law§§ 196, 196-a). Simply because the Commissioner of Labor's authority to pursue suchclaims is discretionary (see Labor Law § 196 [2]), this does not render such aproceeding less effective than a class action. The availability of this administrative process, and its focuson the particulars applicable to each employee's claim, make it in many ways a superior method bywhich the claims made by plaintiffs, and the proposed members of the class, can be pursued againstdefendant. For this reason, and the others as previously stated, plaintiffs' bid for class certification wasproperly denied.
Mercure, J.P., Spain, Carpinello and Kane, JJ., concur. Ordered that the order is affirmed, withcosts. [See 16 Misc 3d 844 (2007).]
Footnote 1: Plaintiff Maria Gable withdrew fromthe action and plaintiff Marianne Witkowski's claims were dismissed.
Footnote 2: One allegation concerns the"end-of-shift punch," where, if an employee failed to punch out at the end of a work shift, an entry wasmade on his or her time card by managerial personnel to the effect that the employee had actuallypunched out one minute after he or she had punched in and began his or her work shift. This entrywould result in the employee being paid for working for one minute, and not for the entire time that heor she had actually worked.
Footnote 3: Given our finding, it is not necessaryto determine the admissibility of such testimony in the context of this litigation.