FILED
NOT FOR PUBLICATION JUL 31 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SUSAN J. PEABODY, No. 10-56846
Plaintiff - Appellant, D.C. No. 2:09-cv-06485-AG-RNB
v.
TIME WARNER CABLE ENTERPRISES MEMORANDUM*
LLC,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding
Argued July 11, 2012, Resubmitted July 31, 2014
Pasadena, California
Before: TALLMAN and N.R. SMITH, Circuit Judges, and BURGESS, District
Judge.**
On August 17, 2012, we (1) filed a memorandum disposition affirming the
district court’s grant of summary judgment in favor of Time Warner Cable, Inc.
(TWC) on Peabody’s claim that TWC retroactively reduced her compensation; and
(2) certified the following question to the California Supreme Court: “To satisfy
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Timothy M. Burgess, District Judge for the U.S.
District Court for the District of Alaska, sitting by designation.
California’s compensation requirements, whether an employer can average an
employee’s commission payments over certain pay periods when it is equitable and
reasonable for the employer to do so.” Peabody v. Time Warner Cable, Inc., 689
F.3d 1134, 1135 (9th Cir. 2012).
On July 14, 2014, the California Supreme Court responded “that an
employer satisfies the minimum earnings prong of the commissioned employee
exemption only in those periods in which it actually pays the required minimum
earnings. An employer may not satisfy the prong by reassigning wages from a
different pay period.” Peabody v. Time Warner Cable, Inc., No. 2S04804, 2014
WL 3397770 at *4, — P.3d — (Cal. July 14, 2014).
Therefore, we REVERSE the district court’s grant of summary judgment in
favor of TWC on the remaining four issues1 on appeal and REMAND for
1
These issues are:
1) whether Peabody qualified for the commissions paid exemption of
Section 3(D) of Wage Order 4–2001; 2) whether Peabody was owed
additional minimum wage payments under Wage Order 4–2001 4(B);
3) whether Time Warner Cable, Inc. (“TWC”) was exempt from
providing wage statements under California Labor Code Section
226(a); and 4) whether TWC owes Peabody any late wage payments
under California Labor Code Section 203.
Peabody, 689 F.3d at 1135.
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reconsideration consistent with the foregoing interpretation of California law. Each
party shall bear its own costs.
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