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NOT FOR PUBLICATION MAR 15 2012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
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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).
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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
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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.
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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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