Baker v. United Parcel Service Inc, No. 2:2021cv00114 - Document 74 (E.D. Wash. 2023)
Court Description: ORDER Granting in Part Class Certification, ECF No. 57 . Signed by Judge Thomas O. Rice.
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Baker v. United Parcel Service Inc Doc. 74 Case 2:21-cv-00114-TOR ECF No. 74 filed 07/05/23 PageID.823 Page 1 of 18 1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 JUSTIN BAKER, 7 NO. 2: 21-CV-0114-TOR Plaintiff, 8 ORDER GRANTING IN PART CLASS CERTIFICATION v. 9 UNITED PARCEL SERVICE, INC., a Delaware corporation; and UNITED PARCEL SERVICE, INC., an Ohio Corporation, 10 11 12 Defendant. 13 14 BEFORE THE COURT is Plaintiff’s Motion for Class Certification (ECF 15 No. 57). This matter was submitted for consideration without oral argument. The 16 Court has reviewed the record and files herein and is fully informed. For the 17 reasons discussed below, Plaintiff’s Motion for Class Certification (ECF No. 57) is 18 GRANTED, in part. 19 // 20 // ORDER GRANTING IN PART CLASS CERTIFICATION ~ 1 Dockets.Justia.com Case 2:21-cv-00114-TOR ECF No. 74 1 2 3 filed 07/05/23 PageID.824 Page 2 of 18 BACKGROUND A. Factual Background This case concerns Defendants’ employment policies regarding military 4 leave and their compliance with the Uniformed Services Employment and 5 Reemployment Rights Act (“USERRA”). The Court must accept as true the 6 substantive allegations of the class claim. See Blackie v. Barrack, 524 F.2d 891, 7 901 n.17 (9th Cir. 1975). 8 9 Plaintiff has been employed as a full-time package driver by Defendants since approximately June 18, 2007. ECF No. 16 at 5, ¶ 8. Plaintiff also serves in 10 the Army Reserve and has done so since 2014. Id. Plaintiff has routinely taken 11 short-term leave during his employment to engage in military service as required 12 by his obligations to the Army Reserve, although the precise dates are unclear. 13 Compare id. with ¶ 42. 14 Since at least October 10, 2004, Defendants have not provided paid leave to 15 employees who take military leave lasting 14 days or less (“short-term military 16 leave”). Id. at 12, ¶ 30. However, Defendants provide paid leave or full wages to 17 employees who must be absent from work for non-military reasons, including 18 bereavement and illness. Id. Additionally, Defendants provide differential pay to 19 employees who must perform jury duty. Id. 20 Plaintiff and all other small package drivers for Defendants are members of ORDER GRANTING IN PART CLASS CERTIFICATION ~ 2 Case 2:21-cv-00114-TOR ECF No. 74 filed 07/05/23 PageID.825 Page 3 of 18 1 the International Brotherhood of Teamsters, the union that represents the 2 employees in collective bargaining with Defendants. ECF No. 57 at 8. The 3 collective bargaining agreements (“CBA”) entered between Defendants and their 4 employees govern Defendants’ leave policies. Id. Relevant here are the National 5 Master United Parcel Service Agreement, which applies nationwide and includes 6 the policies for jury duty leave and funeral leave, and the Joint Council No. 28 7 Rider, which applies to Defendants’ Washington State employees and contains sick 8 leave policies that are specific to Washington State. Id. at 8–9. 9 Neither of the relevant CBAs contain a leave policy that permits paid leave 10 for short-term military leave. Id. at 9. However, Defendants do provide some paid 11 military leave, including up to one year differential pay for individuals who (1) are 12 employed by Defendants for at least six months, (2) joined the military prior to 13 becoming employed by Defendants, and (3) are called for active duty for a period 14 of service exceeding 30 days “because of war or national emergency.” Id. at 11. 15 Defendants do not provide paid leave benefits for any type of military service that 16 is 30 days or less or for any type of military service that is not “active duty,” such 17 as mandatory Guard training and Reserve duties. Id. 18 B. Procedural Background 19 On August 2, 2021, Plaintiff filed an Amended Complaint on behalf of 20 himself and similarly situated individuals challenging Defendants’ paid leave ORDER GRANTING IN PART CLASS CERTIFICATION ~ 3 Case 2:21-cv-00114-TOR ECF No. 74 filed 07/05/23 PageID.826 Page 4 of 18 1 policies and compliance with USERRA. ECF No. 16. The Amended Complaint 2 raises a single cause of action: violation of USERRA, 38 U.S.C. § 4316(b)(1), for 3 failure to provide paid short-term military leave while providing other forms of 4 paid short-term leave. Id. at 16–19, ¶¶ 44–51. Defendants filed a motion to 5 dismiss on August 25, 2021, which the Court denied in full on March 31, 2022. 6 ECF Nos. 26, 38. Defendants answered the Amended Complaint on April 28, 7 2022. ECF No. 41. 8 C. 9 10 Plaintiff’s Motion for Class Certification proposes the following class definition: 11 All current and former employees of UPS subject to the Joint Council No. 28 Rider who worked in the State of Washington and, during their employment with UPS, took one or more short-term military leaves of 14 days or less and did not receive the regular pay that they would have earned had they continued to work their ordinary work schedules. The class covers a time period from October 10, 2004 through the date of judgment in this action. 12 13 14 15 ECF No. 57 at 15. 16 17 18 Proposed Class DISCUSSION I. Class Certification Standard Certification of a class action lawsuit is governed by Rule 23 of the Federal 19 Rules of Civil Procedure. Pursuant to Rule 23(a), the party seeking class 20 certification must demonstrate that “(1) the class is so numerous that joinder of all ORDER GRANTING IN PART CLASS CERTIFICATION ~ 4 Case 2:21-cv-00114-TOR ECF No. 74 filed 07/05/23 PageID.827 Page 5 of 18 1 members is impracticable; (2) there are questions of law or fact common to the 2 class; (3) the claims or defenses of the representative parties are typical of the 3 claims or defenses of the class; and (4) the representative parties will fairly and 4 adequately protect the interests of the class.” Fed. R. Civ. P. 23(a). 5 Provided that the proposed class satisfies the above criteria, courts must 6 further determine whether certification is appropriate under Rule 23(b). Where a 7 party seeks certification of a so-called “damages class” under Rule 23(b)(3), as 8 here, he or she must demonstrate that (1) “questions of law or fact common to class 9 members predominate over any questions affecting only individual members;” and 10 (2) “a class action is superior to other available methods for fairly and efficiently 11 adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). As the party moving for 12 certification, the plaintiff bears the burden of establishing that the foregoing 13 requirements have been satisfied. Mazza v. Am. Honda Motor Co., Inc., 666 F.3d 14 581, 588 (9th Cir. 2012). 15 A court presented with a class certification motion must perform a “rigorous 16 analysis” to determine whether each of these prerequisites has been satisfied. Gen. 17 Tel. Co. v. Falcon, 457 U.S. 147, 161 (1982). “Frequently that ‘rigorous analysis’ 18 will entail some overlap with the merits of the plaintiff’s underlying claim.” Wal- 19 Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351 (2011); see also Ellis v. Costco 20 Wholesale Corp., 657 F.3d 970, 981 (9th Cir. 2011) (emphasizing that a district ORDER GRANTING IN PART CLASS CERTIFICATION ~ 5 Case 2:21-cv-00114-TOR ECF No. 74 filed 07/05/23 PageID.828 Page 6 of 18 1 court “must” consider the merits of a plaintiff’s claim to the extent that they 2 overlap with the prerequisites for class certification under Rule 23(a)). “A party 3 seeking class certification must affirmatively demonstrate his compliance with the 4 Rule—that is, he must be prepared to prove that there are in fact sufficiently 5 numerous parties, common questions of law or fact, etc.” Wal-Mart, 564 U.S. at 6 350. 7 A. Numerosity 8 Rule 23(a)(1) provides that a proposed class must be “so numerous that 9 joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). “Whether 10 joinder would be impracticable depends on the facts and circumstances of each 11 case and does not, as a matter of law, require any specific minimum number of 12 class members.” Smith v. Univ. of Wash. Law Sch., 2 F. Supp. 2d 1324, 1340 13 (W.D. Wash. 1998). “Generally, 40 or more members will satisfy the numerosity 14 requirement.” Garrison v. Asotin Cty., 251 F.R.D. 566, 569 (E.D. Wash. 2008) 15 (citing Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995)). 16 Conversely, the Supreme Court has indicated that a class of 15 “would be too small 17 to meet the numerosity requirement.” Gen. Tel. Co. of the Nw., Inc. v. EEOC, 446 18 U.S. 318, 330 (1980). 19 Plaintiff has identified approximately 440 putative class members. ECF No. 20 57 at 16. Although Defendants assert certain employees, e.g., part-time employees ORDER GRANTING IN PART CLASS CERTIFICATION ~ 6 Case 2:21-cv-00114-TOR ECF No. 74 filed 07/05/23 PageID.829 Page 7 of 18 1 and full-time employees with schedules that differ from Plaintiff’s, should be 2 excluded from the class, Defendants do not specifically challenge numerosity, even 3 if the class is limited. See ECF No. 68 at 32. Accordingly, Plaintiff has 4 sufficiently established numerosity. 5 B. Commonality 6 Rule 23(a)(2) requires that “there are questions of law or fact common to the 7 class.” Fed. R. Civ. P. 23(a)(2). For purposes of this rule, “[c]ommonality exists 8 where class members’ situations share a common issue of law or fact, and are 9 sufficiently parallel to insure a vigorous and full presentation of all claims for 10 relief.” Wolin v. Jaguar Land Rover N. Am., LLC, 617 F.3d 1168, 1172 (9th Cir. 11 2010) (internal quotation and citation omitted). At its core, the commonality 12 requirement is designed to ensure that class-wide adjudication will “generate 13 common answers apt to drive the resolution of the litigation.” Wal-Mart, 564 U.S. 14 at 350 (emphasis in original) (internal quotation and citation omitted). “This does 15 not, however, mean that every question of law or fact must be common to the class; 16 all that Rule 23(a)(2) requires is a single significant question of law or fact.” 17 Abdullah v. U.S. Sec. Assoc., Inc., 731 F.3d 952, 957 (9th Cir. 2013) (emphasis in 18 original) (quotation omitted). “If a common question will drive the resolution, 19 even if there are important questions affecting only individual members, then the 20 class is ‘sufficiently cohesive to warrant adjudication by representation.’” Jabbari ORDER GRANTING IN PART CLASS CERTIFICATION ~ 7 Case 2:21-cv-00114-TOR ECF No. 74 filed 07/05/23 PageID.830 Page 8 of 18 1 v. Farmer, 965 F.3d 1001, 1005 (9th Cir. July 20, 2020) (quoting Amchem Prods., 2 Inc. v. Windsor, 521 U.S. 591, 623–24 (1997)). 3 Plaintiff identifies a common question of law regarding whether paid leave 4 is among the “rights and benefits” that must be provided equally to employees on 5 military leave under USERRA § 4316(b) when provided for other comparable 6 forms of leave, and a common question of fact as to whether Defendants provide 7 other paid leave that is comparable to short-term military leave. ECF No. 57 at 18. 8 Defendants do not specifically challenge the first question. As to the second, 9 Defendants first argue the other types of leave offered as comparators, i.e., jury 10 duty, sick leave, and bereavement leave, are not comparable in duration to short- 11 term military leave. ECF No. 68 at 19–23. Defendants’ specific challenges to the 12 comparability of each leave category are more appropriately addressed on the 13 merits of Plaintiff’s claim when the evidentiary record is fully developed. 14 Next, Defendants argue the scheduling differences for part-time employees 15 and certain other full-time employees are not comparable to full-time package 16 drivers. Id. at 23. More specifically, full-time package drivers like Plaintiff 17 typically work Monday through Friday schedules. Id. at 16. Part-time employees 18 do not work full workdays and certain other full-time package drivers work 19 Sunday through Thursday or Tuesday through Saturday. ECF No. 68 at 20–23. 20 Employees who work on Saturdays or Sundays may miss more days of work for ORDER GRANTING IN PART CLASS CERTIFICATION ~ 8 Case 2:21-cv-00114-TOR ECF No. 74 filed 07/05/23 PageID.831 Page 9 of 18 1 military service than those who work Monday through Friday. Id. Collectively, 2 these differences in scheduling will require individualized “mini trials.” Id. at 21. 3 As to part-time employees, the Court agrees they are not comparable to full- 4 time employees for the purposes of Plaintiff’s claim because part-time employees 5 accrue leave benefits at different rates and are subject to different leave caps than 6 full-time employees. ECF No. 57 at 11–14. USERRA requires employers to 7 provide non-seniority rights and benefits to employees who are absent from work 8 due to military service as generally provided to employees “having similar 9 seniority, status, and pay.” 38 U.S.C. § 4316(b)(1). The implementing regulations 10 further indicate the entitlement to rights and benefits is defined by those provided 11 by the employer to similarly situated employees. 20 C.F.R. § 1002.150(a). Here, 12 the relevant CBAs provide different policies for accruing certain leave benefits 13 depending on whether an employee is full- or part-time. Thus, full-time and part- 14 time employees are not similarly situated or similar in status and pay with regard to 15 Defendants’ leave policies. 16 As to Defendants’ assertion that full-time regular package drivers who do 17 not work Monday through Friday should also be excluded, the Court is not 18 persuaded these schedules result in materially different leave policies. Even if 19 these schedules affect the number of workday absences incurred during an 20 employee’s short-term military leave, the employment policies governing the ORDER GRANTING IN PART CLASS CERTIFICATION ~ 9 Case 2:21-cv-00114-TOR ECF No. 74 filed 07/05/23 PageID.832 Page 10 of 18 1 accrual and entitlement to leave for these employees are the same as those 2 governing full-time package drivers who work Monday through Friday. 3 Finally, the Court finds no merit to Defendants’ contention that Plaintiff’s 4 definition of short-term military leave is unclear. The Amended Complaint clearly 5 indicates the phrase intends 14 or less consecutive days, not the first of 14 6 absences. ECF No. 16 at 3, ¶ 1. There is nothing in the present motion to indicate 7 the definition has changed. 8 At the class certification stage, Plaintiff has sufficiently identified common 9 questions of law and fact as to full-time package drivers. The Court will limit the 10 11 proposed class accordingly. C. Typicality 12 Rule 23(a)(3) requires that “the claims or defenses of the representative 13 parties [be] typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). 14 This requirement serves to ensure that “the interest of the named representative 15 aligns with the interests of the class.” Wolin, 617 F.3d at 1175. Factors relevant to 16 the typicality inquiry include “whether other members have the same or similar 17 injury, whether the action is based on conduct which is not unique to the named 18 plaintiffs, and whether other class members have been injured by the same course 19 of conduct.” Ellis, 657 F.3d at 984. Stated differently, “[t]ypicality refers to the 20 nature of the claim or defense of the class representative, and not to the specific ORDER GRANTING IN PART CLASS CERTIFICATION ~ 10 Case 2:21-cv-00114-TOR ECF No. 74 filed 07/05/23 PageID.833 Page 11 of 18 1 facts from which it arose or the relief sought.” Id.; see also Stearns v. Ticketmaster 2 Corp., 655 F.3d 1013, 1019 (9th Cir. 2011), abrogated on other grounds by 3 Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013) (“The typicality requirement 4 looks to whether the claims of the class representatives are typical of those of the 5 class, and is satisfied when each class member’s claim arises from the same course 6 of events, and each class member makes similar legal arguments to prove the 7 defendant’s liability.”) (brackets omitted). 8 Plaintiff argues his claims are typical of the class because he challenges 9 Defendants’ uniform policy of denying pay for short-term military leave while 10 simultaneously providing pay for comparable leave, and because there are no 11 unique defenses to Plaintiff’s claims. ECF No. 57 at 21. Defendants again assert 12 Plaintiff’s claims as a full-time regular package driver with a Monday through 13 Friday schedule are not typical to part-time employees or full-time regular package 14 drivers who do not work Monday through Friday. ECF No. 68 at 23–24. 15 Defendants do not otherwise challenge Plaintiff’s typicality. For the reasons 16 discussed supra, the Court finds Plaintiff’s claims are typical to the limited class 17 consisting of full-time regular package drivers, regardless of schedule. 18 19 20 D. Adequacy of Representation The final prerequisite for class certification is that “the representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. ORDER GRANTING IN PART CLASS CERTIFICATION ~ 11 Case 2:21-cv-00114-TOR ECF No. 74 filed 07/05/23 PageID.834 Page 12 of 18 1 23(a)(4). This requirement applies to both the named class representatives and to 2 their counsel. “To determine whether named plaintiffs will adequately represent a 3 class, courts must resolve two questions: (1) do the named plaintiffs and their 4 counsel have any conflicts of interest with other class members[;] and (2) will the 5 named plaintiffs and their counsel prosecute the action vigorously on behalf of the 6 class?” Ellis, 657 F.3d at 985 (internal quotations omitted). 7 Plaintiff represents that he has no conflicts of interest with other class 8 members and that he and his counsel will vigorously pursue the claims on behalf of 9 the class. ECF No. 57 at 22. Plaintiff’s counsel have significant experience 10 litigating class action and USERRA cases. Id. at 23. Defendants do not challenge 11 either of these points. Thus, the Court finds that Plaintiff and his counsel will 12 adequately represent the interests of the class. 13 E. Rule 23(b)(3) Requirements 14 1. Predominance 15 For purposes of Rule 23(b)(3), the relevant inquiry is whether these common 16 questions predominate over individualized questions. See Wolin, 617 F.3d at 1172 17 (“While Rule 23(a)(2) asks whether there are issues common to the class, Rule 18 23(b)(3) asks whether these common questions predominate.”). Although Rule 19 23(a)(2) and Rule 23(b)(3) both address commonality, “the 23(b)(3) test is ‘far 20 more demanding,’ and asks ‘whether proposed classes are sufficiently cohesive to ORDER GRANTING IN PART CLASS CERTIFICATION ~ 12 Case 2:21-cv-00114-TOR ECF No. 74 filed 07/05/23 PageID.835 Page 13 of 18 1 warrant adjudication by representation.’” Id. (quoting Windsor, 521 U.S. at 623– 2 24). 3 Plaintiff asserts the liability questions and damages calculations involve 4 common evidence and a common methodology, which predominate over any 5 individualized inquiries. ECF No. 57 at 26. Defendants argue a laches defense in 6 this matter requires Defendants to determine when each putative class member had 7 notice that his or her USERRA rights were violated; thus, these individualized 8 inquires defeat predominance. ECF No. 68 at 26. 9 While the consideration of affirmative defenses is relevant to the 10 predominance analysis, the mere existence of an affirmative defense “does not 11 compel a finding that individual issues predominate over common ones.” Williams 12 v. Sinclair, 529 F.2d 1383, 1388 (9th Cir. 1975). “The circumstances in which an 13 affirmative defense defeats certification are limited to situations in which the 14 affirmative defenses are unusually important or are coupled with other individual 15 issues.” Huntsman v. Sw. Airlines Co., No. 19-CV-00083-PJH, 2021 WL 391300, 16 at *11 (N.D. Cal. Feb. 3, 2021). Defendants do not present any argument that their 17 laches defense is unusually important. As to the individual issues presented by the 18 laches defense, Defendants argue there is no common evidence to determine the 19 point at which each class member came to know his or her rights were violated. 20 ECF No. 68 at 26–27. Plaintiff claims otherwise but does not indicate what ORDER GRANTING IN PART CLASS CERTIFICATION ~ 13 Case 2:21-cv-00114-TOR 1 2 ECF No. 74 filed 07/05/23 PageID.836 Page 14 of 18 common evidence will aid in this determination. At this time, the Court is unable to determine whether the individual issues 3 raised by the laches defense predominate over the common questions of law and 4 fact. In any event, Defendants are not prohibited from later asserting the defense 5 to individual plaintiffs or renewing the issue on a motion to decertify the class. 6 Defendants also contend that calculating each class members’ damages will 7 require individual determinations, which defeats predominance. Id. at 27. The 8 Ninth Circuit has held individualized damages calculations do not defeat class 9 treatment. Leyva v. Medline Industries Inc., 716 F.3d 510, 513–514 (9th Cir. 10 2013); see also In re Live Concert Antitrust Litig., 247 F.R.D. 98, 135 (C.D. Cal. 11 2007) (collecting cases). Thus, Defendants’ argument is without merit. 12 13 14 15 At this point, the issues common to the class predominate over any individual inquiries that may be required in this case. 2. Superiority In considering whether class adjudication is superior to separate individual 16 actions, a court must determine “whether the objectives of the particular class 17 action procedure will be achieved in the particular case.” Hanlon v. Chrysler 18 Corp., 150 F.3d 1011, 1023 (9th Cir. 1998), overruled on other grounds by Wal- 19 Mart, 564 U.S. at 338. In making this determination, the court must consider, inter 20 alia, (1) the interests of individual class members in pursuing their claims ORDER GRANTING IN PART CLASS CERTIFICATION ~ 14 Case 2:21-cv-00114-TOR ECF No. 74 filed 07/05/23 PageID.837 Page 15 of 18 1 separately; (2) the extent of any existing litigation concerning the same subject- 2 matter; (3) the desirability of concentrating the litigation in a particular forum; and 3 (4) the feasibility of managing the case as a class action. Fed. R. Civ. P. 4 23(b)(3)(A)–(D). A court’s consideration of these factors must “focus on the 5 efficiency and economy elements of the class action so that cases allowed under 6 subdivision (b)(3) are those that can be adjudicated most profitably on a 7 representative basis.” Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1190 8 (9th Cir. 2001) (quotation and citation omitted). 9 Defendants argue class treatment is not a superior method for litigating 10 Plaintiff’s claims because the proposed class creates a “fail-safe” class. ECF No. 11 68 at 30. The Ninth Circuit has expressed skepticism of the fail-safe class concept, 12 noting “[i]t is implicit in the definition of the class that its members are persons 13 who claim to have been” damaged. Vizcaino v. U.S. Dist. Ct. for W. Dist. of 14 Washington, 173 F.3d 713, 722 (9th Cir.), as amended (June 10, 1999), opinion 15 amended on denial of reh'g sub nom. In re Vizcaino, 184 F.3d 1070 (9th Cir. 1999) 16 (emphasis in original). A class definition is not circular merely because the 17 ultimate determination of success may turn on resolution of disputed legal theories 18 contained within the definition. Id.; see also Andersen v. Briad Restaurant Group, 19 LLC, 333 F.R.D. 194, 205 (D. Nev. 2019) (collecting cases). Nevertheless, the 20 Court is not persuaded the proposed class is fail-safe. As Plaintiff indicates, even ORDER GRANTING IN PART CLASS CERTIFICATION ~ 15 Case 2:21-cv-00114-TOR ECF No. 74 filed 07/05/23 PageID.838 Page 16 of 18 1 if a class member does not have damages after differential pay is taken into 2 account, the class member is still bound by the judgment. See ECF No. 70 at 15. 3 Finally, the Court determines class adjudication would serve the interests of 4 individual class members for whom the potential recovery may be small in 5 comparison to the costs of litigation. Although the Court is aware of litigation 6 concerning similar claims, the parties do not identify other matters that would 7 weigh against certifying the proposed class in this matter. This district is an 8 appropriate forum given the extent of Defendants’ business in this state and the 9 number of class members who reside in this district. Finally, this case can feasibly 10 be managed as a class action. With certain restrictions to the scope of the class, 11 Plaintiff has satisfied the requirements for class certification. 12 ACCORDINGLY, IT IS HEREBY ORDERED: 13 14 15 16 1. Plaintiff’s Motion for Class Certification (ECF No. 57) is GRANTED, in part. 2. Pursuant to Fed. R. Civ. P. 23(b)(3), the Court hereby certifies the following Class in this case: 17 All current and former full-time employees of UPS subject to the 18 Joint Council Rider No. 28 who worked in the State of Washington 19 from October 10, 2004 through the date of judgment and, during 20 their employment with UPS, took one or more short-term military ORDER GRANTING IN PART CLASS CERTIFICATION ~ 16 Case 2:21-cv-00114-TOR ECF No. 74 filed 07/05/23 PageID.839 Page 17 of 18 1 leaves of 14 or fewer consecutive days and did not receive the 2 regular pay that they would have earned had they continued to 3 work their ordinary work schedules. 4 5 3. Pursuant to Fed. R. Civ. P. 23(c)(1)(B), the Court hereby certifies the following claims, including all damages related thereto: 6 The pay differential that was not paid by UPS for the short-term 7 military leaves of 14 or fewer consecutive days. 8 9 4. Excluded from the Class are persons who previously reached settlements with or judgments against Defendants resolving or releasing any claims 10 arising during the Class periods under USERRA related to any of the 11 claims in this lawsuit. 12 5. Also excluded from the Class are persons who are managers and full- 13 time supervisors who received a salary when taking military leave lasting 14 less than one week. See ECF No. 57 at 11, n.9. 15 16 17 6. Plaintiff Justin Baker is appointed as the Class Representative for the certified Class. 7. Michael J. Scimone of Outten & Golden, LLP and R. Joseph Barton of 18 Barton & Downes, LLP are appointed as Co-Lead Class Counsel for the 19 Class. Ryan Cowdin, Thomas G. Jarrard of the Law Office of Thomas 20 G. Jarrard, PLLC, Matthew Z. Crotty of Riverside Law Group, PLLC, ORDER GRANTING IN PART CLASS CERTIFICATION ~ 17 Case 2:21-cv-00114-TOR ECF No. 74 filed 07/05/23 PageID.840 Page 18 of 18 1 Peter Romer-Friedman of Peter Romer-Friedman Law, PLLC, and 2 Robert D. Friedman of Gupta Wessler, PLLC are appointed as additional 3 Class Counsel for the Class. 4 8. Pursuant to Rule 23(c)(2)(B), within fourteen (14) days from the date of 5 this Order, class counsel shall serve and file a proposed “Notice” to 6 members of the certified class and suggest a method by which this should 7 be accomplished and at whose expense. This “Notice” shall comply with 8 the requirements of Rule 23(c)(2)(B). 9 10 11 12 9. Defendants shall have fourteen (14) days from service of the proposed “Notice” to serve and file any objections to the same. 10.Class counsel shall have seven (7) days from service of any objection to serve and file a reply to the same. 13 11.The Court will thereafter Order Notice to be provided and by whom. 14 The District Court Executive is directed to enter this Order and furnish 15 16 copies to counsel. DATED July 5, 2023. 17 18 THOMAS O. RICE United States District Judge 19 20 ORDER GRANTING IN PART CLASS CERTIFICATION ~ 18
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