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Parra v. Bashas', Inc.

United States District Court for the District of Arizona

May 31, 2013, Decided; May 31, 2013, Filed

No. CIV-02-0591-PHX-RCB

Opinion

 [*365]  ORDER

Introduction

More than a decade ago, current and former Hispanic 1 employees of defendant Bashas', Inc. filed this action alleging race and national origin discrimination in violation of Title VII of the  [**2] 1964 Civil Rights Act as amended ("Title VII"), 42 U.S.C. § 2000e, et seq., for both disparate impact and disparate treatment, and intentional race discrimination in violation of 42 U.S.C. § 1981. Plaintiffs allege that Bashas' has discriminated against them with respect to pay and working conditions. In 2005, this court denied certification of a pay class, but granted certification as to the working conditions claim. Parra v. Bashas', Inc., 2005 U.S. Dist. LEXIS 46635, 2005 WL 6182338 (D. Ariz. 2005) ("Parra I"). In the ensuing years, for a host of reasons recounted below, this action has not moved beyond the class certification stage. Pending before the court is the most recent permutation of the class certification issue.

Background

Bashas' Inc. operates three grocery store chains with three different formats and monikers: A.J.'s Fine Foods ("A.J.'s"); (2) Bashas'; and (3) Food City. In this putative class action, named plaintiffs Gonzalo Estrada, 2 a Hispanic former Food City hourly employee, and Aurelia Martinez, a Hispanic  [**3] current Food City hourly employee, 3 allege that Bashas' pays its "predominantly" Hispanic Food City employees, less than it pays "the Caucasian employees at A.J.'s Fine Foods and Bashas' for performing the same work." First Amended Complaint ("FAC")  [*366]  (Doc. 116) at 1:26-2:2, ¶ 1 ("the pay claim"). Plaintiffs further allege that the Food City Hispanic employees "are required to work under conditions that are typically less safe and less hygienic than the conditions found at A.J.'s . . . and Bashas'." Id. at 2:2-4, ¶ 1 ("the working conditions claim").

In Parra I, this court granted plaintiffs' motion for class certification pursuant to Fed.R.Civ.P. 23(b)(2) as to the working conditions claim, but denied certification  [**4] of the pay claim, because there was not "sufficient commonality among the class members" as to the latter claim. Parra I, 2005 U.S. Dist. LEXIS 46635, 2005 WL 6182338, at *16. Commonality, as Rule 23(a)(2) requires for all class actions, was lacking because, as the parties conceded, "the contested pay scales ha[d] merged and, for the most part, are now identical." 2005 U.S. Dist. LEXIS 46635, [WL] at *15 (citations omitted).

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291 F.R.D. 360 *; 2013 U.S. Dist. LEXIS 76792 **; 118 Fair Empl. Prac. Cas. (BNA) 1372; 2013 WL 2407204

José Parra, Gonzalo Estrada, and Aurelia Martinez, Plaintiffs, vs. Bashas', Inc., Defendant.

Subsequent History: Reconsideration denied by Estrada v. Bashas' Inc., 2014 U.S. Dist. LEXIS 44544 (D. Ariz., Mar. 31, 2014)

Prior History: Parra v. Bashas', Inc., 2009 U.S. Dist. LEXIS 33832 (D. Ariz., Apr. 15, 2009)

CORE TERMS

commonality, class certification, pay claims, plaintiffs', class representative, working conditions, quotation, marks, named plaintiff, employees, class member, class action, certification, district court, notice, predominance, wage scale, administrative remedy, damages, Reply, adequacy, exhaust, putative class member, discriminatory, omitted footnote, inter alia, classwide, reasons, law of the case doctrine, declarations

Civil Procedure, Special Proceedings, Class Actions, Certification of Classes, Judicial Officers, Judges, Discretionary Powers, Prerequisites for Class Action, General Overview, Evidence, Burdens of Proof, Predominance, Numerosity, Commonality, Appeals, Remands, Judgments, Preclusion of Judgments, Law of the Case, Allocation, Governments, Courts, Judicial Precedent, Relief From Judgments, Altering & Amending Judgments, Typicality, Adequacy of Representation, Labor & Employment Law, Civil Actions, Exhaustion of Remedies, Filing of Charges, Discrimination, Reconstruction Statutes, Class Members, Named Members, Constitutional Law, Fundamental Rights, Procedural Due Process, Scope of Protection, Maintainability, Superiority, Testimony, Credibility of Witnesses, Class Attorneys, Evidence, Burden Shifting, Disparate Treatment, Employment Practices, Pattern & Practice, Burdens of Proof, Civil Rights Law, Contractual Relations & Housing, Equal Rights Under the Law (sec. 1981), Remedies, Remedies, Damages, Compensatory Damages, Punitive Damages, Notice of Class Action, Content of Notice, Opt Out Provisions, Certification of Classes, Decertification, Appellate Review, Case or Controversy, Standing, Third Party Standing, Justiciability, Injunctions, Particular Parties, Responses, Defenses, Demurrers & Objections, Exhaustion of Remedies, Waiver & Preservation of Defenses, Authority to Adjudicate, Appellate Jurisdiction, Lower Court Jurisdiction