Marlo v. United Parcel Service, Inc.
639 F.3d 942
| 9th Cir. | 2011Background
- Marlo sued UPS alleging UPS misclassified him and other full-time supervisors as exempt from overtime under California Wage Order No. 9.
- He held hub, preload, and on-road supervisor roles, and he worked >40 hours weekly with no regular meal/rest periods or overtime pay.
- The district court certified a class of UPS full-time supervisors from 2000–2004; Marlo was named class representative.
- On remand after appellate reversal, the district court decertified the class in 2008, finding predominance not established and reliance on unreliable/untested common proof.
- Following a trial, a jury found UPS did not satisfy the executive or administrative exemptions for hub and preload periods, but did for on-road period; Marlo was awarded unpaid wages accordingly.
- UPS and Marlo cross-appeal; the Ninth Circuit affirmed the district court’s decertification decision and remanded for memorandum disposition on remaining issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court abused its discretion in decertifying the class | Marlo contends predominance exists with common misclassification proof. | UPS argues common proof insufficient; week-by-week analysis required. | No abuse; predominance not shown; class decertified. |
| Whether UPS properly bears burden on misclassification at merits vs. certification | Marlo asserts misclassification evidence supports common proof. | UPS bears merits burden; Rule 23 governs certification burden. | District court correctly allocated Rule 23(b)(3) burden to Marlo. |
| Whether a blanket exemption policy (exemption class) suffices for predominance | Marlo relies on centralized control and uniform policies to show commonality. | Policy alone does not prove actual common misclassification; duties vary. | Policy alone insufficient; individual duties vary; predominance not shown. |
| Whether week-by-week analysis was required to determine exempt status | Marlo argues flexibility beyond weekly evaluation should apply. | IWC requires examining actual workweek time spent on exempt tasks. | Week-by-week assessment required; court properly applied law. |
| Whether the district court properly weighed the merits at the certification stage | Marlo asserts the court weighed merits to defeat class. | Court only compared evidence types to assess certification viability. | No improper weighing; court limited itself to certification analysis. |
Key Cases Cited
- Nordquist v. McGraw-Hill Broad. Co., 32 Cal.App.4th 555 (Cal. Ct. App. 1995) (burden on employer to prove exemption on merits)
- In re Wells Fargo Home Mortgage Overtime Pay Litig., 571 F.3d 953 (9th Cir. 2009) (policy alone does not establish predominance)
- Donovan v. Burger King Corp., 675 F.2d 516 (2d Cir. 1982) (policies/procedures do not foreclose discretion by employees)
- Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., U.S. , 130 S. Ct. 1431, 176 L. Ed. 2d 311 (2010) (Rule 23 governs class-action questions even when state law applies)
- United Steel Workers v. ConocoPhillips Co., 593 F.3d 802 (9th Cir. 2010) (burden on movant to show Rule 23(a) and (b) satisfied)
- Yokoyama v. Midland Nat'l Life Ins. Co., 594 F.3d 1087 (9th Cir. 2010) (standard of review for class-certification decisions is abuse-of-discretion)
- Dunbar v. Albertson's, Inc., 141 Cal.App.4th 1422 (Cal. Ct. App. 2006) (more than 51% of time on managerial tasks determines exempt status)
- Moore v. Hughes Helicopters, Inc., 708 F.2d 475 (9th Cir. 1983) (permissible to inspect merits considerations at certification stage)
- Marlo v. United Parcel Serv., Inc., 254 Fed.Appx. 568 (9th Cir. 2007) (reversed summary judgment; material issues of discretion and judgment)