Appellate Reports and Briefs

Tyson Foods v. Bouaphakeo — The U.S Supreme Court allows statistical evidence to fill evidentiary gaps in class actions

Jeffrey I. Ehrlich
2016 May

Class actions; use of statistical proof: Tyson Foods v. Bouaphakeo, et al. (2016) __ S.Ct._ (U.S. Supreme)

Employees of Tyson’s pork-processing slaughterhouse filed suit under federal and Iowa law, arguing that they were not properly compensated for the time they spent each day donning and doffing their required protective gear. The district court certified their lawsuit as a class action under FRCP 23. The employer opposed, arguing that because of the variance in the protective gear that each employee wore, their claims were not sufficiently similar for class treatment. Because the employer kept no records of the time that the employees spent donning and doffing the protective gear, the employees relied on a statistical study, which held that the average employee spent 18 to 21 minutes per day putting the gear on and taking it off. At trial, the jury awarded the class $2.9 million. The judgment was affirmed by the 8th Circuit. The Supreme Court affirmed.

Whether and when statistical evidence can be used to establish classwide liability depends on the purpose for which the evidence is being introduced and on “the elements of the underlying cause of action. Because a representative sample may be the only feasible way to establish liability, it cannot be deemed improper merely because the claim is brought on behalf of a class. Respondents can show that the sample conducted by the plaintiffs’ expert was a permissible means of establishing hours worked in a class action by showing that each class member could have relied on that sample to establish liability had each brought an individual action.

Here, the employees sought to introduce a representative sample to fill an evidentiary gap created by the employer’s failure to keep adequate records. Had the employees proceeded with individual lawsuits, each employee likely would have had to introduce the expert’s study to prove the hours he or she worked. The representative evidence was a permissible means of showing individual hours worked.

This holding is in accord with Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 131 S.Ct. 2541, 180 L.Ed.2d 374, where the underlying question was, as here, whether the sample at issue could have been used to establish liability in an individual action. There, the employees were not similarly situated, so none of them could have prevailed in an individual suit by relying on depositions detailing the ways in which other employees were discriminated against by their particular store managers. In contrast, the employees here, who worked in the same facility, did similar work, and were paid under the same policy, could have introduced the expert’s study in a series of individual suits.

This case presents no occasion for adoption of broad and categorical rules governing the use of representative and statistical evidence in class actions. Rather, the ability to use a representative sample to establish classwide liability will depend on the purpose for which the sample is being introduced and on the underlying cause of action. In FLSA actions, inferring the hours an employee has worked from a study such as Mericle’s has been permitted by the Court so long as the study is otherwise admissible.

FEHA, Associational-disability claims: Castro-Ramirez v. Dependable Highway Express, Inc. (2016) __ Cal.App.4th. __ (2d Dist. Div. 8.)

Plaintiff Luis Castro-Ramirez sued his former employer, Dependable Highway Express, Inc. (DHE), alleging causes of action for disability discrimination, failure to prevent discrimination, and retaliation under the Fair Employment and Housing Act (FEHA) as well as wrongful termination in violation of public policy. His son requires daily dialysis, and according to the evidence, the plaintiff must be the one to administer the dialysis. For several years, the plaintiff’s supervisors scheduled him so that he could be home at night for his son’s dialysis. That schedule accommodation changed when a new supervisor took over and ultimately terminated the plaintiff for refusing to work a shift that did not permit him to be home in time for his son’s dialysis. The trial court granted defendant’s motion for summary judgment and denied plaintiff’s motion to tax costs. Reversed.

The court held that the plaintiff demonstrated triable issues of material fact on his causes of action for associational disability discrimination, failure to prevent discrimination, retaliation, and wrongful termination in violation of public policy.

The FEHA provides a cause of action for associational disability discrimination, although it is a seldom-litigated cause of action. As to disability discrimination generally, the FEHA makes it unlawful for an employer, “because of the ... physical disability ... of any person, ... to discharge the person from employment ... or to discriminate against the person ... in terms, conditions, or privileges of employment.” (Gov.Code, § 12940, subd. (a).) The very definition of a “physical disability” embraces association with a physically disabled person. FEHA explains that the phrase “physical disability” includes a perception ... that the person is associated with a person who has, or is perceived to have a physical disability. (§ 12926, subd. (o).) Accordingly, when the FEHA forbids discrimination based on a disability, it also forbids discrimination based on a person’s association with another who has a disability.

A prima facie case of disability discrimination under the FEHA requires a showing that (1) the plaintiff suffered from a disability, (2) the plaintiff was otherwise qualified to do his or her job, with or without reasonable accommodation, and (3) the plaintiff was subjected to adverse employment action because of the disability. Adapting this framework to the associational discrimination context, the “disability” from which the plaintiff suffers is his or her association with a disabled person. Respecting the third element, the disability must be a substantial factor motivating the employer’s adverse employment action. Once the plaintiff establishes a prima facie case, the burden then shifts to the employer to offer a legitimate, nondiscriminatory reason for the adverse employment action. In an appropriate case, evidence of dishonest reasons, considered together with the elements of the prima facie case, may permit a finding of prohibited bias.

Here, whether the plaintiff here could perform his job with a reasonable accommodation (a modified schedule to administer dialysis to his son) was certainly relevant, and the circumstance that he might have required an accommodated schedule was no bar to his discrimination claim. DHE was not entitled to summary judgment on this ground. To the extent that federal cases under the ADA suggest otherwise, it is because the language of the FEHA and ADA differ in this area.

After reviewing the record, the court determined that a jury could reasonably infer from the evidence that the plaintiff’s association with his disabled son was a substantial motivating factor in his supervisor’s decision to terminate him, and furthermore, that the supervisor’s stated reason for termination was a pretext.

Jeffrey I. Ehrlich Jeffrey I. Ehrlich

Jeffrey I. Ehrlich is the principal of the Ehrlich Law Firm, in Claremont, California. He is a cum laude graduate of the Harvard Law School, a certified appellate specialist by the California Board of Legal Specialization, and a member of the CAALA Board of Governors. He is the editor-in-chief of Advocate magazine and a two-time recipient of the CAALA Appellate Attorney of the Year award. He was honored in November 2019 as one of the Consumer Attorneys of California’s “Street Fighters of the Year.”

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