By Georgia D. Koutouzos, J.D.
The employees failed to make the requisite showing of commonality or typicality necessary to support the certification of a class.
A federal district court in California denied an effort by a group of current and former employees at various Chipotle Mexican Grill locations in that state to bring a class action suit against the company alleging state-law claims for employment discrimination, harassment based on race/national origin, and retaliation based upon two purported corporate policies related to employees’ English-speaking skills. Although the employees assumed that the at-issue policies were uniformly implemented across the company’s 400 California restaurants, they did not offer significant proof that the policies were standardized across the company such that there were questions of law or fact common to the class, nor did they tender significant proof that the policies existed on a company-wide basis so as to apply to all class members, the court held (Guzman v. Chipotle Mexican Grill, Inc., January 15, 2020, Gilliam, H.).
Alleged discrimination. A group of employees at Chipotle Mexican Grill who are Hispanic or of Mexican national origin filed suit against the chain restaurant operator, alleging claims under California law for disparate treatment employment discrimination, disparate impact employment discrimination, harassment based on race or national origin, failure to prevent discrimination/harassment, and retaliation. The employees contended that the company and its corporate policies systematically discriminate against them by, among other things, failing to promote otherwise qualified individuals because they either speak English poorly or speak English with an accent; falsifying or providing unsubstantiated poor performance reviews; subjecting individuals to verbal taunting, offensive language, and racial jokes; and wrongfully terminating those who have not quit on their own.
At-issue corporate policies. The employees sought certification of a class action encompassing approximately 43,000 employees from 400 different California Chipotle restaurants. For purposes of class certification, the employees narrowed the scope of their allegations to assert that the company has two uniform and facially discriminatory policies that support certification as to their disparate impact, harassment, and failure to prevent discrimination claims: (1) an unwritten English-only policy by which employees are prohibited from speaking Spanish in the workplace (”English-Only Policy”); and (2) a promotion policy that requires employees to demonstrate a subjective level of English proficiency before they are eligible for promotion to management positions (”Promotion Policy”).
Class-certification motion. The employees argued that the company had no business necessity for the English-Only Policy or the Promotion Policy and, on the basis of those allegations, moved to certify a single class, defined as: “[a]ll current and former hourly employees of Chipotle, who are Hispanic and/or of Mexican national origin, and worked at Chipotle restaurant locations in California during the period November 14, 2011 until the resolution of this action.” Chipotle opposed the motion for class certification, maintaining that: (1) the employees lacked constitutional standing; (2) the class definition was overly broad; (3) the employees failed to meet the requirements of Rule 23(a)—i.e., numerosity, commonality, typicality, and adequacy of representation); and (4) the employees failed to the meet the requirements of Rule 23(b)—i.e., either injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole or questions of law or fact common to class members predominate over any questions affecting only individual members, and class action is superior to other available methods for fairly and efficiently adjudicating the controversy.
Standing. Chipotle contended that the employees lacked Article III standing to bring their claims because they had not been injured by its alleged policies. Even if the court were to assume that the company has an English-Only Policy and a Promotion Policy, the named plaintiffs did not personally experience them, the company maintained, adding that the named plaintiffs were not prevented from speaking Spanish at their respective restaurants. Two of the three employees had been promoted several times during their employment, and the third never sought a promotion. Nevertheless, the court found that the employees met their burden of establishing standing, pointing to the fact that they had submitted declarations attesting to the fact that they had been subjected to discrimination and harassment during their employment and that they had suffered injury because of it.
Overbreadth. As for Chipotle’s contention that the class definition was overbroad, the court found that the crux of the case centered on commonality: whether there were questions of law or fact common to the class. Throughout their motion for class certification and reply briefs the employees assumed that the alleged English-Only Policy and Promotion Policy were uniform corporate policies that were uniformly implemented across the company’s 400 California restaurants. However, it was not enough at the class-certification stage to simply assert that there were company-wide policies, the court advised, noting that the employees’ evidence actually rebutted the inference that the company had uniformly imposed such policies in its California locations.
Managerial discretion. The employees’ evidence highlighted each manager’s discretion in determining when Spanish could be spoken in the restaurants and the variability of an English-Only Policy. Determining whether an employee suffered injury based on harassment or discrimination necessarily turned on individualized inquiries into the managers’ actions and decisions. And, as U.S. Supreme Court precedent makes clear, individualized inquiries like those are not reasonably susceptible to class adjudication. It certainly was possible to imagine, even in the absence of a formal written policy, that managers could uniformly prohibit employees from speaking Spanish in Chipotle restaurants, but there was no evidence of that sort of standardized treatment in the record.
Commonality. Similarly, the employees did not offer significant proof that the Promotion Policy had been standardized across the company such that there were questions of law or fact common to the class. The employees provided no evidence of which positions at the company required English proficiency or the level of proficiency that was required for such promotion. Instead, they only provided evidence that employees in four of the 400 California stores had been told at different times while working in the company’s restaurants that they needed to improve their English proficiency to be promoted. This did not suggest that there was a uniform policy that applied to all class members such that there were common questions of law or fact that could be resolved efficiently in a single proceeding.
Lack of written guidance. Moreover, even assuming that Chipotle required some level of English proficiency for some promotions, the employees acknowledged that there was no written policy clarifying what level of English proficiency was required, nor did Chipotle provide managers with training or a framework against which to evaluate employees’ proficiency. In short, managers at the company appeared to be empowered to determine what level of English proficiency was needed and how to test for that proficiency. In sum, the employees did not proffer significant proof that the employer operated under a general policy of discrimination required to satisfy commonality.
Typicality. The employees contended that they satisfied the typicality requirement because they had been subjected to the same discriminatory policies as the other absent class members, and thus their claims arose from the same factual and legal theories. But their typicality argument suffered from the same flaw as their commonality argument: it was not enough to conclude that policies that prohibit employees from speaking English or require English proficiency for promotion eligibility would violate the same California laws. The employees did not tender significant proof that the English-Only Policy or Promotion Policy existed on a company-wide basis so as to apply to all class members. Without such information, it could not be assessed whether the three named plaintiffs’ experiences and related injuries were unique as compared to the rest of the 43,000 putative class members.
Impact issues. That problem was further exacerbated by the fact that the three named plaintiffs all worked at the same restaurant and under the same general manager under overlapping time periods. But the proposed class was not limited to employees who worked in a single restaurant or only under specific managers. Additionally, even among the three named plaintiffs, their exposure to the two policies differed. Thus, there simply was no basis for the court to conclude that the named plaintiffs’ experiences were typical of those of the class.
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