                                                                           FILED
                           NOT FOR PUBLICATION                             JUN 22 2015

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


YVETTE GREEN, on behalf of herself               No. 13-56093
and all others similarly situated,
                                                 D.C. No. 2:08-cv-01360-DSF-PJW
              Plaintiff - Appellant,

  v.                                             MEMORANDUM*

FEDERAL EXPRESS CORPORATION,

              Defendant - Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                     Dale S. Fischer, District Judge, Presiding

                        Argued and Submitted June 4, 2015
                              Pasadena, California

Before: M. SMITH and N.R. SMITH, Circuit Judges and LEFKOW,** Senior
District Judge.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
              The Honorable Joan Humphrey Lefkow, Senior District Judge for the
U.S. District Court for the Northern District of Illinois, sitting by designation.
      Plaintiff-Appellant Yvette Green appeals the district court’s denial of her

motion for class certification.1 We review a district court’s decision concerning

class certification under Fed. R. Civ. P. 23 for an abuse of discretion. In re Wells

Fargo Home Mortg. Overtime Pay Litig., 571 F.3d 953, 957 (9th Cir. 2009).

“Abuse exists in three circumstances: (1) reliance on an improper factor, (2)

omission of a substantial factor, or (3) a clear error of judgment in weighing the

correct mix of factors.” Id. “To the extent that a ruling on a Rule 23 requirement

is supported by a finding of fact, we review that finding for clear error.” Stearns v.

Ticketmaster Corp., 655 F.3d 1013, 1018 (9th Cir. 2011) (internal quotation marks

omitted), abrogated on other grounds by Comcast Corp. v. Behrend, 133 S. Ct.

1426 (2013). We have jurisdiction under 28 U.S.C. § 1292, and affirm.

      Green sought to certify two classes, alleging that the Defendant-Appellee

Federal Express Co. (“FedEx”) failed to pay all hours worked by its employees by

(1) not paying employees for the time between when the employees “clocked in” to

the time they started their scheduled shift and from the time they ended their shift

to the time they “clocked out” (the “Unpaid On-the-Clock Class”); and (2) not




      1
        Green filed a Petition for Interlocutory Appeal, pursuant to Fed. R. Civ. P.
23(f), and this court granted that Petition on June 21, 2013. The district court
proceedings were stayed pending this court’s decision.

                                          2
paying for work performed during unpaid meal breaks (the “Working Meal Break

Class”).

      1. The district court did not abuse its discretion by refusing to certify the

Unpaid On-the-Clock Class. On remand, this court directed the district court to

      apply [the standard in Rutti v. Lojack Corp., 596 F.3d 1046, 1061 (9th
      Cir. 2010), and Morillion v. Royal Packing Co., 995 P.2d 139 (Cal.
      2000),] to determine whether the level of FedEx’s control over
      employees within the proposed general class when they are on-the-
      clock but off-shift is sufficient to render the on-the-clock but off-shift
      time compensable under California law, first, in determining whether
      Rule 23 certification is proper and, subsequently, in deciding the
      merits.

Forrand v. Fed. Express Corp., 401 F. App’x 198, 200 (9th Cir. 2011). On

remand, the district court properly applied the standard from Rutti and Morillion to

determine whether the FedEx employees (as a class) were under FedEx’s control

during the time they were on the clock but not on-shift. Absent a policy that

prevents the FedEx employees from using that time for their own benefit, Green

cannot show class-wide control by FedEx. See generally Wal-Mart Stores, Inc. v.

Dukes, 131 S. Ct. 2541, 2555-57 (2011) (addressing the Fed. R. Civ. P. 23(a)

commonality requirement and finding that a common question did not exist absent

a corporate policy of gender discrimination); see also Comcast Corp., 133 S. Ct. at

1432 (“If anything, Rule 23(b)(3)’s predominance criterion is even more



                                          3
demanding than Rule 23(a).”). Without demonstrating class-wide control, Green

cannot satisfy the requirement of Rule 23(b)(3), because individual fact inquiries

concerning whether FedEx controlled each employee would predominate over any

common question.

      The district court’s finding that FedEx did not have a policy limiting how

employees could use their time when they were “clocked-in” but not on-shift is not

clearly erroneous. Each of FedEx’s Fed. R. Civ. P. 30(b)(6) designees who were

questioned on the matter testified that FedEx did not have a policy limiting what an

employee could do with their time when they were “clocked-in” but not on-shift.

The designees testified that they saw no reason why the employees would not be

able to leave the FedEx premises (or use the time for any other purpose) after

clocking in as long as they returned and were ready to work by the time their shift

started. Additionally, it is undisputed that if an employee worked during that time

(whether before or after their shift), they would be compensated for that time if

they notified their manager and had their time card adjusted.

      Green’s only evidence, presented to support her contention that FedEx had a

policy that exerted control over its employees while they were “clocked in,” was

that some employees at the Los Angeles branch thought that they could not leave

the premises after clocking in. At best, this evidence suggests that employees at


                                          4
that branch may have been under FedEx’s control after clocking in. However, this

evidence must be contrasted with testimony from employees at the San Diego

office indicating that they were free to leave the premises after clocking in. Taken

together, this evidence demonstrates that the district court’s conclusion, that FedEx

did not have a uniform policy that automatically placed all of the potential class

members under FedEx’s control as soon as they “clocked in,” was not clearly

erroneous. Accordingly, the district court did not abuse its discretion by

concluding that Green has not satisfied the requirement of Rule 23(b)(3), because

individual fact inquiries concerning whether each employee was under FedEx’s

control would predominate over any common questions.

      2. The district court did not abuse its discretion by refusing to certify the

Working Meal Break Class. Under California law, an employer is “obligated to

‘relieve its employee of all duty for an uninterrupted 30-minute period’ . . . , but . .

. the employer need not actually ensure that its employees take meal breaks.”

Wang v. Chinese Daily News, Inc., 737 F.3d 538, 546 (9th Cir. 2013) (quoting

Brinker Rest. Corp. v. Superior Court, 273 P.3d 515 (Cal. 2012)). If a meal break

is provided, and an employee works through the break, “the employer is liable only

for straight pay, and then only when it knew or reasonably should have known that

the worker was working through the authorized meal period.” Id. (internal


                                            5
quotation marks omitted). However, “the employer is not obligated to police meal

breaks and ensure no work thereafter is performed.” Brinker Rest. Corp., 273 P.3d

at 537.

      The district court properly recognized and applied the principles from these

cases and concluded that the evidence presented by Green “does not adequately tie

Green’s allegation that FedEx failed to pay employees for time spent working on

meal breaks to a proper and reliable measure of damages for work done on those

breaks.” Forrand v. Fed. Express Corp., No. CV 08-13600 DSF, 2013 WL

1793951, *5 (C.D. Cal. 2011). For time to be compensable when a work break has

been provided by the employer,2 the employee must show that the employer knew

or should have known that some of its employees were working through their meal

breaks. Chinese Daily News, Inc., 737 F.3d at 546. However, Green’s common

method of proof, electronic scans of packages during designated meal breaks, does

not show that FedEx knew or should have known that its employees were working

during their break periods. First, it is undisputed that FedEx did not regularly

review the electronic data Green would use to show work performed during meal

breaks. Therefore, Green’s evidence does not show that FedEx actually knew of

      2
       Green does not argue that FedEx failed to provide its employees with
appropriate breaks. Instead, Green argues that some FedEx employees worked
through their breaks and were not compensated.

                                          6
uncompensated work being done. Second, FedEx is not obligated to police its

employees’ meal breaks. See Brinker Rest. Corp., 273 P.3d at 537. Thus, FedEx

had no obligation to sift through the volumes of electronic data produced by the

scanning devices to determine whether its employees were actually taking their

authorized breaks. Because the electronic scan data does not show that FedEx

knew or should have known that some of its employees were working through their

meal breaks, Green has failed to provide a common method of proof that would

require FedEx to compensate its employees on a class-wide basis. Therefore,

individual issues concerning whether an employee actually worked during a meal

break, and brought it to the attention of FedEx, would predominate. Thus, the

district court’s decision to deny class certification under Rule 23(b)(3) was not an

abuse of discretion.

      AFFIRMED.




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