                                                                               FILED
                            NOT FOR PUBLICATION                                MAR 15 2012

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



RYAN DELODDER, individually and on                No. 10-56755
behalf of all those similarly situated and
RICARDO MARQUES, individually and                 D.C. No. 2:08-cv-06044-DMG-AGR
on behalf of all those similarly situated,

              Plaintiffs - Appellants,            MEMORANDUM *

  v.

AEROTEK INC. and DOES 1 - 10,

              Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Central District of California
                      Dolly M. Gee, District Judge, Presiding

                        Argued and Submitted March 6, 2012
                               Pasadena, California

Before: FARRIS, CLIFTON, and IKUTA, Circuit Judges.

       We affirm the district court’s denial of Plaintiffs’ motion for class

certification under Rule 23(b)(3).




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      We review a district court’s denial of class certification for abuse of

discretion. Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 939 (9th Cir.

2009). “‘An abuse of discretion occurs when the district court, in making a

discretionary ruling, relies upon an improper factor, omits consideration of a factor

entitled to substantial weight, or mulls the correct mix of factors but makes a clear

error of judgment in assaying them.’” Id. (quoting Parra v. Bashas', Inc., 536 F.3d

975, 977-78 (9th Cir.2008)).

      Plaintiff argues that the district court gave too little weight to evidence that

Aerotek required all recruiters to complete the same training and obey the same

policies, and too much weight to testimony that Aerotek recruiters’ actual work

activities varied from recruiter to recruiter. Our cases, however, required the

district court to “make a factual determination as to whether class members are

actually performing similar duties.” In re Wells Fargo Home Mortg. Overtime Pay

Litig., 571 F.3d 953, 959 (9th Cir. 2009) (internal quotation marks removed;

emphasis added), see also Marlo v. United Parcel Serv., Inc., 639 F.3d 942, 948

(9th Cir. 2011); Vinole, 571 F.3d at 946-47. Evidence of corporate policies and

training programs are relevant to this determination, but are not dispositive, for the

obvious reason that training and policies may not reflect what the class members

actually do. Marlo, 639 F.3d at 948; Wells Fargo, 571 F.3d at 958-59; Vinole, 571


                                           2
F.3d at 946-47. In this case, the district court properly considered both evidence of

uniform policies and evidence of diverse work activities. The work activity

evidence was important because it showed variations in recruiters’ candidate

sourcing techniques, interview styles, authority to recommend candidates, and

relationship with supervisors, all of which were relevant to the Administrative

Exemption factors in California Industrial Wage Commission's Wage Order No.

4-2001, § 1(A)(2), codified at California Code of Regulations, title 8, section

11040. Accordingly, the district court’s decision to afford more weight to this

evidence than to the uniform policy evidence was not a clear error of judgment.

      Plaintiffs fault the district court for failing to apply certain federal Fair Labor

Standards Act regulations incorporated by reference into Wage Order 4-2001,

§ 1(A)(2)(f).1 These regulations establish that routine screening of job applicants

according to predetermined criteria does not require “discretion and independent

judgment,” but that the selection of qualified candidates does. 29 C.F.R.

§ 541.207(c)(5) (2001). Since the district court found that some Aerotek recruiters

had more authority to select and recommend candidates than others, the regulations


      1
         Wage Order 4-2001 incorporates the federal regulations effective as of the
issuance of the Wage Order in 2001. Wage Order 4-2001 § 1(A)(2)(f). The
district court mistakenly quoted from the 2004 federal regulations instead of the
applicable 2001 version. The two versions are similar but not identical. Compare
29 C.F.R. § 541.202(c) (2004) to 29 C.F.R. §541.207(a),(e)(1)-(2) (2001).

                                           3
do nothing to aid Plaintiffs’ case. To the contrary, the regulations support the

district court’s conclusion that Plaintiffs’ lack of discretion claim is not well-suited

to classwide adjudication.

      Plaintiffs also argue that the district court’s order failed to explicitly

consider whether the variations in recruiter discretion the district court identified

concerned “matters of significance.” See 29 C.F.R. 541.207(a) (2001). Plaintiffs,

however, give no reason to doubt that they did. The variations the district court

found in recruiters’ sourcing techniques, interview styles, and recommendation of

candidates, at the very least, were matters of significance to Aerotek’s business.

      Similarly, Plaintiffs observe that their claims required an inquiry into

whether recruiters “execute under only general supervision” either “special

assignments and tasks” or “work along specialized or technical lines.” Wage

Order 4-2001 § 1(A)(2)(d)-(e). The district court analyzed the questions arising

from the “general supervision” component and concluded that they were not

predominately common, but it didn’t analyze the nature of the questions raised by

the “special” or “specialized” work component. Even assuming for the sake of

argument that the “special” or “specialized” work requirement raised common

questions, however, we are not persuaded that those common questions

predominated over the individual questions arising from variations in the way


                                            4
Aerotek supervised its recruiters, let alone that they predominated over the

individual questions raised by Plaintiffs’ claims as a whole. Accordingly, the

district court’s omission of a special/specialized analysis from its order did not

“omit[] consideration of a factor entitled to substantial weight.” Vinole, 571 F.3d

at 939.2

      Finally, Plaintiffs argue that the district court should have certified a limited

class action to adjudicate Plaintiffs’ claim that class members do not perform

“office or non-manual work directly related to management policies or general

business operations.” See Wage Order 4-2001 § 1(A)(2)(a)(I); Fed. R. of Civ. P.

23(c)(4) (“When appropriate, an action may be brought or maintained as a class

action with respect to particular issues.”). The district court did find that this

theory raised predominately common questions, but the nature of that commonality

was not in Plaintiffs’ favor. Rather, it found that all class members were engaged

in “meeting the needs of Aerotek’s customer companies,” a role that is “directly



      2
        Additionally, Plaintiffs could not have prevailed merely by showing that
they didn’t do specialized or special work. Aerotek was entitled to classify them as
exempt on the alternate grounds that they “regularly and directly assist[ed] a
proprietor, or an employee employed in a bona fide executive or administrative
capacity.” Wage Order #4-2001 § 1(A)(2)(c)-(e) (setting out three alternative
conditions which, in contrast to conditions (a),(b),(f), and (g), are stated in the
disjunctive). Accordingly, the class can’t have been harmed by the district court’s
decision not to certify a class to explore Plaintiffs specialized/special theory.

                                            5
related to . . . [Aerotek’s] general business operations,” and therefore exempt.

Wage Order 4-2001 § 1(A)(2)(a)(I). The district court did not abuse its discretion

by concluding that Plaintiffs’ losing theory was not an “appropriate” basis for a

Rule 23(c)(4) class action, and Plaintiffs in any case can’t have been prejudiced by

the inability to pursue that theory.

      AFFIRMED.




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