Bonita H. MARSHALL v. SAFEWAY, INC.
No. 56, Sept. Term, 2013.
Court of Appeals of Maryland.
March 26, 2014.
88 A.3d 735
Debra Gardner, Esq., Public Justice Center, Baltimore, MD, for Amici Curiae the Public Justice Center, Maryland Employment Lawyers Association, Metropolitan Washington Employment Lawyers Association and D.C. Employment Justice Center.
Douglas F. Gansler, Atty. Gen., of Maryland, Jonathan R. Krasnoff, Asst. Atty. Gen., for Amicus Curiae brief of Commissioner of Labor and Industry.
William F. Ryan, Jr. (Jerome C. Schaefer, Sarah A. Marquardt, Whiteford, Taylor & Preston, LLP, Baltimore, MD), on brief, for Respondent.
Argued before BARBERA, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, MCDONALD and ALAN M. WILNER (Retired, specially assigned), JJ.
WILNER, J.
This case began as a dispute over whether twenty-nine dollars and sixty-four cents was wrongfully deducted by respondent Safeway Inc. from the wages of its employee, Bonita Marshall, in response to two writs of garnishment issued by the District Court of Maryland pursuant to
So far, Ms. Marshall has lost in court. The Circuit Court for Prince George‘s County declined to certify the class and entered judgment in favor of Safeway, and the Court of Special Appeals affirmed that judgment. Marshall v. Safeway, 210 Md.App. 545, 63 A.3d 672 (2013). Although we disagree with one of the lower courts’ holdings, we shall affirm the judgment of the Court of Special Appeals.
Nine issues are presented for our review, but they may be fairly consolidated into three:
- (1) What is the applicable standard for determining the amount of wages exempt from garnishment;
-
(2) Do employees have a private right of action against their employer under Maryland Code, § 3-507.2 of the Labor and Employment Article (LE) for miscalculating the amount of exemption and, as a result, deducting more from the employee‘s wage than is proper; and - (3) Did the Circuit Court for Prince George‘s County err in denying class certification in this case?
BACKGROUND
Applicable Exemption
In order to put what happened into a proper context, it is helpful, at the outset, to examine the laws governing the amount of wages that are exempt from attachment through a garnishment action. There is a conflict among a Maryland statute (Maryland Code,
In both instances, one prong of the formula is the same—75% of the disposable wages due. The difference lies in the alternative prong—$145 per week as opposed to 30 times the FLSA minimum hourly wage.
In contrast,
added). There is no mention in
It is important to note that the State law measures the amount of exemption, whereas the Federal statute measures the maximum amount that may be garnished, which is why the former applies the greater of the alternatives and the latter applies the lesser of them. The mirror image of both produces the same result with respect to the four Eastern Shore counties, but not with respect to the rest of the State.
“THE FOLLOWING ARE EXEMPT FROM GARNISHMENT: (1) the greater of; (a) 75 percent of the disposable wages due; OR (b) 30 times the federal minimum hourly wages under the Fair Labor Standards Act in effect at the time the wages are due; AND (2) any medical insurance payment deducted from an employer‘s [sic] wages by the employer. Other federal and state exemptions may be available.”
Thus, though stating that CL §§ 15-601 to 607, which includes
It is easy to see how this can be confusing, but there is a simple answer. Although neither side has addressed the matter directly, the law is clear that, by virtue of another section of the Federal law—
In other words, notwithstanding the ambiguity arising from the blanket instruction in the District Court form that CL §§ 15-601 through 15-607 govern wage attachment procedures, by virtue of the Federal preemption, the District Court Form got it right in stating the formula to be applied in determining the exemption—the greater of 75% of disposable wages or 30 times the FLSA minimum hourly wage.
The Garnishments and Safeway‘s Response
The relevant evidence in this case comes from stipulated facts and a few undisputed documents. Marshall was an hourly employee of Safeway from November 2005 to December 2010. In February 2009, Capital One Bank obtained a judgment against her in the amount of $1,070 plus $60 costs and $160 attorneys’ fees. On April 15, 2009, at Capital One‘s request, the District Court issued a Writ of Garnishment on Wages against her in the amount of $1,297, which was directed to Safeway. The writ was received by Safeway‘s payroll garnishment department on April 21, 2009.
At the time, the Safeway payroll garnishment program for Maryland employees
Prince George‘s County and because, as between $145 per week and 75% of Marshall‘s disposable wages, the former produced the greater exemption, that is what Safeway applied for the three pay periods during which the garnishment writ was in effect. The balance of the wages otherwise due to Marshall was paid to Capital One Bank. That garnishment was released by Capital One in July 2009.
A second writ was issued on August 10, 2009, but it was released by Capital One seven days later and apparently was never served on Safeway. In July 2009, a Legal Aid Bureau attorney contacted Safeway‘s payroll department in Phoenix, Arizona, on behalf of Marshall and pointed out that the appropriate exemption was that produced by the Federal statute—30 times the FLSA minimum hourly wage. An official in that department, Kristin Brossman, responded that she had checked with the guidebook used by Safeway—the American Payroll Association‘s Guide to Federal and State Garnishment Laws—and concluded, perhaps incorrectly, that Safeway was correct in applying the standard set forth in
On July 3, 2010, Safeway‘s payroll department received another garnishment writ from the District Court that had been issued on behalf of Capital One Bank on June 21, 2010. Again, Safeway applied the $145 per week exemption specified in
Proceedings In This Case
In August 2010, Marshall filed this lawsuit against Safeway in the Circuit Court for Prince George‘s County on behalf of herself and
“[a]ll persons who are present or former employees, or will be future employees, of Safeway in Maryland, whose wages from Safeway are, or will be, subject to a garnishment order from a Maryland District Court using Form DC/CV 65, and from whom Safeway in any pay period deducted, is deducting, or will in the future deduct, as a garnishment, any
wages in violation of the garnishment order served, being served, or that will be served on it, during the three years prior to the filing of this action and hereafter.”
The action was based principally on Maryland Code,
Marshall alleged that the class of Maryland employees on behalf of whom she purported to sue was so numerous that joinder of all members was impracticable. In that regard, she alleged that, in the preceding three years, Safeway had been named as a garnishee in 379 new District Court actions (in which child support was not involved) and that the class consisted, at a minimum, of potentially 400 persons from whose wages excessive amounts had been withheld by Safeway. She alleged as well that among issues common to the members of the class were whether Safeway‘s garnishment practice continued to violate the writs issued by the District Court and the Maryland Wage Payment Law (
Ten days after the class action suit was filed, Safeway changed its payroll garnishment system for Maryland to conform with the standards set forth in the Exemption instruction in the District Court Form—the greater of 75% of disposable wages or 30 times the FLSA minimum hourly wage—retroactive to the garnishments received in April 2009 and July 2010. In conformance with that decision, Safeway tendered to Marshall the amounts that would have been paid to her had those standards been applied at the time—a total of $45.25—plus interest on that amount.4
way made several tenders—by check and in cash—and all were rejected.
Safeway‘s initial judicial response to the complaint was a motion to dismiss based, in part, on (1) lack of jurisdiction—that the damages were less than $5,000 and exclusive jurisdiction was in the District Court, and (2) that the complaint failed to state a claim for violation of
The next event was an amended complaint by Marshall, which the court determined had effectively been filed as of November 24, 2010. The amended complaint deleted the claim for damages under
In December 2010, the court entered a scheduling order that (1) set a pretrial conference for April 8, 2011, (2) required that any additional parties be added no later than 60 days before that conference, and (3) required further that all discovery be completed no later than 30 days before the conference. In March 2011, Marshall filed a motion to compel discovery and for sanctions. With her initial complaint, Marshall had filed a discovery request seeking a great deal of information regarding all Maryland employees of Safeway
against whom writs of garnishment had been issued during the preceding three years, including payroll records for those employees. Safeway had produced the information with respect to Marshall, but declined to produce it regarding any other employees. In her motion to compel, she claimed that she needed that information in order to support an eventual motion to certify the class. The motion to compel remained dormant until November 21, 2011.
The pretrial conference was held as scheduled on April 8, 2011. No motion to certify the class had yet been filed. Perhaps in light of that fact, the court set the case in for a one-day trial on November 21, 2011. In a Pre-trial Conference Report,
On October 31, 2011, fifteen months after the initial complaint was filed and three weeks before the scheduled trial, Marshall filed a motion to certify the class, claiming that the class was identifiable from Safeway‘s computer records and that there were 499 identified District Court garnishments involving Safeway since August 2007 (three years prior to the filing of the complaint). Though still complaining about Safeway‘s failure to provide discovery regarding the other members of the putative class, the motion claimed that there were, at a minimum, potentially more than 500 Maryland employees of Safeway whose wages were unlawfully garnished. Safeway opposed the motion.
All of this came to a head on November 21, 2011, the date set for trial. The predominant issue was the motion to certify the class, with focus on the criteria set forth in
Section (a): the class is so numerous that joinder of all members is impracticable, there are questions of law or fact common to the class, the claims or defenses of the representative parties are typical of the claims or defenses of the
class, and the representative parties will fairly and adequately protect the interests of the class.
Section (b): (1) the prosecution of separate actions by or against individual members of the class would create a risk of (A) inconsistent or varying adjudications with respect individual members of the class that would establish incompatible standards of conduct for the party opposing the class, or (B) adjudications with respect to individual members of the class that, as a practical matter, would be dispositive of the interests of other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive or declaratory relief with respect to the class as a whole; or
(3) questions of law or fact common to the members of the class predominate over any questions affecting only individual members and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.
Section (c): the court determine class certification “as soon as practicable after commencement of the action,” considered in the light of Ms. Marshall‘s complaint about the failure of Safeway to provide discovery.5
After hearing from counsel on those and other matters, the court concluded, as to certification of the class:
(2) The motion to certify was filed late—15 months after the action was filed and only three weeks before trial—and, if granted, would make it impossible to conduct the trial as scheduled.
(3) Upon its interpretation of the Court of Special Appeals‘s Opinion in Frazier v. Castle Ford, 200 Md.App. 285, 27 A.3d 583 (2011) (later reversed in part in Frazier v. Castle Ford, 430 Md. 144, 59 A.3d 1016 (2013)), the tender of all damages claimed by Marshall, coupled with Safeway‘s adoption of the Federal standard that would preclude any further cases such as this, made the case moot.
(4) Although there was a common issue of Safeway‘s use of an incorrect standard to determine the appropriate exemption (until it changed its policy), the question of how that affected the amounts actually exempted with respect to the 500+ other members of the class depended on facts peculiar to each garnishment—the employee‘s gross and disposable wage, the FLSA minimum hourly wage in effect at the time of the various garnishments, whether the garnishments were for child or spousal support or taxes, as to which different standards apply—and that those individual circumstances predominate over the common issue that no longer existed in any event. The court observed that those disparities also raised a question of whether Marshall‘s claim was typical and whether she properly could serve as a class representative.
(5) The issue of the proper exemption to be applied can be raised in the garnishment case under
had gained nothing for itself by its application of
Upon those findings, the court held that class certification was not appropriate and, for that reason, denied the motion to certify. In light of Marshall‘s concession that the motion to compel discovery related to the question of class certification, that motion was denied as moot.
Noting that it had previously dismissed Marshall‘s claims for damages, the court turned to the only remaining issue—declaratory and injunctive relief. Based on its reading of the Court of Special Appeals‘s decision in Frazier, supra, the court concluded that there was no longer any controversy between Marshall and Safeway and that the case was therefore moot. Upon those findings, the court entered judgment in favor of Safeway, which the Court of Special Appeals, finding no error, affirmed.
DISCUSSION
Appropriate Exemption
We have concluded, supra, and Safeway essentially acknowledged at the outset of the case, that, in relying on the clear wording of the Maryland statute, it had applied the wrong standard in determining the amounts to be exempted and that it had changed its policy to correct that error. Although Marshall suggests that, at some future point, Safeway might revert to its previous policy, that appears to be most
Right of Action Under LE § 3-507.2
Marshall‘s initial complaint was founded largely on
“An employer may not make a deduction from the wage of an employee unless the deduction is:
(1) ordered by a court of competent jurisdiction;
(2) authorized expressly in writing by the employee;
(3) allowed by the Commissioner [of Labor and Industry]; or
(4) otherwise made in accordance with any law or any rule or regulation issued by a governmental unit.”
“Notwithstanding any remedy available under
§ 3-507 of this subtitle, if an employer fails to pay an employee in accordance with§ 3-502 or§ 3-505 of this subtitle, after 2 weeks have elapsed from the date on which the employer is
required to have paid the wages, the employee may bring an action against the employer to recover the unpaid wages.”
As in
The Circuit Court and the Court of Special Appeals gave
We have a different view, based on both the language of
We examined some of the legislative history of subtitle 5 and its relationship to subtitle 4, which is the Maryland equivalent of FLSA, in Friolo v. Frankel, 373 Md. 501, 819 A.2d 354 (2003). What is now title 4—the Wage and Hour Law—was first enacted in 1965. See 1965 Md. Laws, ch. 697. In addition to giving the Commissioner of Labor and Industry broad investigative powers to assure compliance, it provided three specific enforcement mechanisms—one criminal and two civil. Any employer who paid less than the required minimum wage was subject to fine of $1,000. In addition, as civil remedies, employees paid less than the required minimum could sue the employer directly or they could assign their claim to the Commissioner, who could bring a civil action on their behalf. Those remedies are still in that law. See
What is now subtitle 5—the Wage Payment Law—was enacted a year later, in 1966. As now, it required that employees (other than executive, administrative, or professional employees) be paid at least once every two weeks or twice a month,
Unlike the Wage and Hour Law, the 1966 enactment did not provide for a direct private action against an employer for a violation. Aside from a criminal penalty of up to $350, the only remedy was that, upon a complaint, the Commissioner could bring a civil action on behalf of the employee to enforce compliance and collect “any moneys unlawfully withheld from such employee which shall be paid to the employee entitled thereto.” Although there was some tinkering over the years with the amount of the penalties, until 1993 the only civil action against the employer under the statute remained an action by the Commissioner.6
As we explained in Friolo, the addition of a private right of action in 1993 followed from the elimination two years earlier of the unit in the Commissioner‘s office that was responsible for prosecuting civil actions on behalf of employees. With that resource gone, concern was expressed that employees often had no other resource to assist them in pursuing claims for unpaid wages. The enactment of what is now
recover up to treble damages and attorneys’ fees if there was no bona fide dispute, was the legislative substitute. Our discussion in Friolo centered on the provision for up to treble damages and attorneys’ fees if the wage was not withheld pursuant to a bona fide dispute. Here, the question is how the various sections were intended more broadly to fit together.
We have long and consistently subscribed to the view that, when a statute is part of a larger statutory scheme, “it is axiomatic that the language of a provision is not interpreted in isolation; rather, we analyze the statutory scheme as a whole considering the ‘purpose, aim, or policy of the enacting body’ [citations omitted] and ‘attempt to harmonize provisions dealing with the same subject so that each may be given effect. ‘” Fire Fighters v. Cumberland, 407 Md. 1, 9, 962 A.2d 374, 379 (2008) (and cases cited there). Application of those principles convinces us that the two lower courts took much too narrow a view regarding the proper interpretation of
We start with the very definition of “wage” in
That conclusion is compelled by a number of factors. Under the lower courts’ reading, an employer would be immune from an employee‘s suit under
Commissioner‘s amicus brief, the lower court‘s construction would create an internal inconsistency in
The legislative history of
See also the written testimony on HB 1006 (1) by the Division of Labor and Industry: “House Bill 1006 would allow the employee to bring action for violation of the Maryland Wage Payment and Collection Law ...,” (2) by the Chair of the Maryland State Bar Association Section Council on Delivery of Legal Services, noting that HB 1006 “permit[s] a private cause of action for violations of the Wage Payment and Collection Statute,” and (3) by the Executive Director of the Maryland Volunteer Lawyers Service, observing that HB 1006 was aimed at “[e]mployers who take advantage of employees by not paying full wages” by allowing an employee to “bring suit against an employer for refusing to pay wages legally due.”
All of this demonstrates that the purpose of
refusal of employers to pay wages lawfully due—to allow the employee to do what the Commissioner previously was able to do. The particular references to
Denial of Motion to Certify Class
No question is raised here as to whether, as a general proposition, an action under
As we have observed, the Circuit Court considered all of the relevant factors set forth in
Marshall‘s response to that concern was that the delay in filing the motion for certification was due entirely to Safeway‘s refusal to provide discovery regarding the other members of the putative class, and that bears examination. The discovery in question was requested when the initial complaint was filed, in August 2010. Though presumably aware of the requirement in
extent of harm caused “by defendant‘s admitted practices,” the numerosity of the class, the typicality of the plaintiff‘s claims, and the suitability of class certification. Safeway responded that, by that time, the court already had dismissed Marshall‘s monetary claims, no motion to certify the class had been filed, and, with respect to the remaining claims for declaratory and injunctive relief, the case was moot. At the hearing on the motion to certify, Marshall added that discovery was necessary to determine whether Safeway had, in fact, changed its corporate policy and whether any such change would be permanent.
In Frazier v. Castle Ford, supra, 430 Md. 144, 161, 59 A.3d 1016, 1026 (2013), we held that a tender of individual relief to the putative class representative does not moot a class action if the individual plaintiff has not had a reasonable opportunity to seek class certification, “including any necessary discovery.”7
Though certainly brief, that statement is consistent with jurisprudence under the analogous
“District Courts have broad discretion to control the class certification process, and ‘[w]hether or not discovery will be
permitted...’ lies within the sound discretion of the trial court [citations omitted]. Although a party seeking class certification is not always entitled to discovery on the class certification issue, we have stated that ‘[t]he propriety of a class action cannot be determined in some cases without discovery [citation omitted].’ ”
See also Chateau de Ville Productions, Inc. v. Tams-Witmark Music, 586 F.2d 962 (2nd Cir. 1978); In re Initial Public Offerings Securities Litigation, 471 F.3d 24, 41 (2nd Cir. 2006); In re Hydrogen Peroxide Antitrust Litigation, 552 F.3d 305, 318-19 (3rd Cir. 2008); Montelongo v. Meese, 803 F.2d 1341, 1351 (5th Cir. 1986); Mills v. Foremost Ins. Co., 511 F.3d 1300, 1309 (11th Cir. 2008).
This Court also has recognized that both the decision to certify a class (assuming the court has applied the proper standards) and decisions relating to discovery, including the imposition of sanctions, are largely discretionary ones for the trial court. See Frazier, supra, 430 Md. at 155, 59 A.3d at 1022-23 (decision to certify) and Rodriguez v. Clarke, 400 Md. 39, 56-57, 926 A.2d 736, 746 (2007) (decision as to sanctions).
The Circuit Court regarded the information sought with respect to putative class members as relevant principally to the issue of numerosity, which it found had been established (and largely conceded by Safeway) without the discovery. As noted, Marshall contended that the discovery was needed to establish other criteria for class certification—commonality, predominance, superiority, and whether Safeway had actually changed its practice. We find no merit in that position.
As to whether Safeway actually made any permanent change to its policy, the court had before it not only Ms. Brossman‘s affidavit, which Marshall could have tested by deposing her or by calling her as an adverse witness, but also company documents reflecting the change. Apart from that, given our holding in Anderson v. Anderson, supra, 285 Md. 515, 525, 404 A.2d 275, 280, that any State law that provides less of an exemption than required under the Federal statute is unlawful, confirmed in this case, Safeway would not be
permitted to revert to its earlier policy and would have no incentive to do so.
With respect to the other claims by Marshall, the real crux of the Circuit Court‘s decision, other than untimeliness of the motion, was that the procedure set forth in
The only truly common issues in the class action suit were whether Safeway had used an improper standard for determining exemptions and would continue to use such a standard. Safeway conceded that it had used the $145 per week standard except in the four Eastern Shore counties because that is what the Maryland statute clearly required, but that it was no longer doing so (and cannot lawfully do so). All other issues regarding the proper amounts withheld pursuant to the garnishment orders are dependent on the particular facts of each case—what the Federal minimum wage was at the time of the individual garnishments, what the disposable wage of each employee was at the time, whether the garnishments were for taxes or child or spousal support as to which different standards applied, whether there were any other defenses to the judgment or the garnishment. On top of that was the undisputed fact that, in
In short, we find no abuse of discretion in the denial of class certification. In light of that denial, there was no longer any justiciable controversy between Marshall and Safeway, and thus there was no error by the court entering judgment for Safeway.
ADKINS, J., concurs and dissents.
MCDONALD, J., concurs.
ADKINS, J., concurring and dissenting.
Respectfully, I disagree with the Majority‘s holding that Ms. Marshall had a private cause of action under
MCDONALD, J., concurring.
I join the Court‘s very clear and well reasoned opinion. I write separately just to note that, while the Circuit Court properly exercised its discretion in this case to deny certification of a class for the reasons identified in the Court‘s opinion, other claims under the Wage Payment and Collection Law may be amenable to prosecution as class actions. These are often cases in which multiple individual employees may each have a claim—claims that are small compared to many that we see, but that may be very significant to the individual employees—against the same defendant for very similar reasons. Indeed, the closely related wage and hour laws themselves contemplate the consolidation of similar individual claims against one employer in a single action. See Maryland Code,