Filed: Apr. 30, 2018
Latest Update: Apr. 30, 2018
Summary: ORDER RE: EVIDENTIARY OBJECTIONS TO EVIDENCE SUBMITTED IN SUPPORT OF, AND OPPOSITION TO, PLAINTIFF'S MOTION FOR CLASS CERTIFICATION [70, 71, 72] OTIS D. WRIGHT, II , District Judge . I. INTRODUCTION On September 25, 2017, Plaintiff Neda Faraji moved to certify a class of salaried executive team leaders in asset protection ("ETL-APs") who worked at Defendant Target Corporation's California stores. (ECF No. 45.) Plaintiff argues that Target incorrectly classified its ETL-APs as exempt execut
Summary: ORDER RE: EVIDENTIARY OBJECTIONS TO EVIDENCE SUBMITTED IN SUPPORT OF, AND OPPOSITION TO, PLAINTIFF'S MOTION FOR CLASS CERTIFICATION [70, 71, 72] OTIS D. WRIGHT, II , District Judge . I. INTRODUCTION On September 25, 2017, Plaintiff Neda Faraji moved to certify a class of salaried executive team leaders in asset protection ("ETL-APs") who worked at Defendant Target Corporation's California stores. (ECF No. 45.) Plaintiff argues that Target incorrectly classified its ETL-APs as exempt executi..
More
ORDER RE: EVIDENTIARY OBJECTIONS TO EVIDENCE SUBMITTED IN SUPPORT OF, AND OPPOSITION TO, PLAINTIFF'S MOTION FOR CLASS CERTIFICATION [70, 71, 72]
OTIS D. WRIGHT, II, District Judge.
I. INTRODUCTION
On September 25, 2017, Plaintiff Neda Faraji moved to certify a class of salaried executive team leaders in asset protection ("ETL-APs") who worked at Defendant Target Corporation's California stores. (ECF No. 45.) Plaintiff argues that Target incorrectly classified its ETL-APs as exempt executives and administrators, which resulted in the ETL-APs being underpaid in violation of California law. Target disputes this contention and opposes the Motion for Class Certification. Both Plaintiff and Target submitted documents and declarations in support of their respective positions in connection with the Motion. Both parties have lodged objections to the other parties' evidence. The Court rules on those objections herein.1
II. DISCUSSION
A. Target's Motion to Strike Declaration of David Spivak
In support of her Motion for Class Certification, Plaintiff submitted a declaration from her attorney, David Spivak. (Decl. of David Spivak ("Spivak Decl."), ECF No. 49-3.) On November 1, 2017, Target moved to strike portions of Spivak's Declaration on evidentiary grounds. (ECF No. 70.) Plaintiff opposed Target's Motion on December 28, 2017. (ECF No. 84.) After considering the parties' papers in support of, and in opposition to, the Motion and Spivak's Declaration itself, the Court concludes that large portions of the declaration include impermissible summaries of the evidence (when the evidence should speak for itself), improper legal argument, see Fuchs v. State Farm. Gen. Insurance Co., CV 16-01844-BRO-GJS, 2017 WL 4679272, at *2 (C.D. Cal. Mar. 6, 2017) ("Courts in this Circuit have stricken portions of declarations . . . [and] entire declarations where these contained improper argument that should have been included in the memorandum of points and authorities."), or lack the necessary personal knowledge or foundation, see United States v. Dibble, 429 F.2d 598, 602 (9th Cir. 1970) ("In general, an attorney does not have personal knowledge . . . of a document produced by his client or created prior to litigation."). With regard to Target's specific objections, the Court rules as follows:
SPIVAK DECLARATION
Testimony Objections Ruling
1. "On April 12, 2017, this Court Improper legal argument. Sustained. The
implicitly acknowledged that Court's previous
class certification could depend order speaks for
on the existence of questions itself.
about whether the executive
team leader in asset protection Lacks foundation,
("ETL-AP") job duties are conclusory, speculation Sustained. The
exempt or not. Ex. 6, 6:15-22 (Fed. R. Evid. 702, 901). Court's previous
("Plaintiff must obtain class order speaks for
itself.
members' contact information, Inadmissible hearsay Sustained.
communicate with the (Fed. R. Evid. 801).
estimated 3,391 members, and
conduct interviews with a Irrelevant and immaterial
statistically significant and (Fed. R. Evid. 401). Overruled.
representative sample about
eighty-three different job duties
to determine whether Defendant
mischaracterized the duties it
assigned to all class members as
exempt."). Despite the Court's
Order, Defendant refused to
produce the names and contact
information of the putative class
members. On April 17, 2017,
Plaintiff filed an Ex Parte
Application for an Order for
Defendant Target Corporation
to Provide Putative Class
Members' Contact Information
based on the arguments stated
in Plaintiff's Memorandum of
Points and Authorities. On
April 28, 2017, this Court found
that Plaintiff made a prima
facie showing that "the class
contact information will enable
plaintiff to contact class
members to gather evidence to
show commonality and
predominance, among the other
elements." Id., Ex. 7, p. 7.
. . .
Accordingly, the Court ordered
Defendant to produce to
Plaintiff the names, addresses
and telephone numbers of the
ETL-APS for the period of
November 28, 2012 to the
present. Id." Spivak Decl., ¶ 9.
2. "Defendant's Director of Inadmissible hearsay Sustained. Also
Employee Relations Michael (Fed. R. Evid. 801). improper
Brewer testified that, to his summary of
knowledge, this is a list of evidence that
information of the ETL-APs should speak for
Defendant employed since itself.
November 28, 2012 that it
prepared in response to
Plaintiffs request. See, infra, ¶
16, MB, 194:5-19." Spivak
Decl., ¶ 13.
3. "According to Defendant, Lacks personal Sustained. Also
Director of Employee Relations knowledge (Fed. R. improper
Michael Brewer is experienced Evid. 602); Lacks summary of
and knowledgeable in its wage foundation, conclusory, evidence that
and hour practices. See Ex. 3. speculation (Fed. R. should speak for
Pursuant to Federal Rule of Evid. 702, 901). itself.
Civil Procedure 30(b)(6),
Defendant named Mr. Brewer Inadmissible hearsay Sustained.
as the person most qualified to (Fed. R. Evid. 801).
testify on its behalf about
subjects related to Plaintiffs Irrelevant and immaterial Overruled.
claims. (Fed. R. Evid. 401).
. . . As such, his statements are Improper legal argument Sustained.
binding on Defendant. and conclusion
Defendant testified that Asset
Protection ("AP") is "a
function," a part of the
"corporate risk" "pyramid"
rather than a department or
recognized subdivision of
Target. Id, 24:9-24. Even
though Defendant classifies
Target Protection Specialists
("TPSs") and Asset Protection
Specialists ("APSs") as
subordinates to ETL-APs,
Defendant provides the ETL-APs
with little to no control
over them. Defendant's
corporate office directly assigns
them daily routines and new
tasks every day. See Ex. 13;
see, infra,¶ 17, NF, 44 3: 5-16;
see, infra,'¶ 18, EA, 172:1-7.
Defendant does not permit the
ETL-APs to order the TPSs and
APSs to deviate from the
routines or assigned tasks. See
Declaration of Neda Faraji
("DNF"), ¶ 11; DEA, ¶ 9; RH, ¶
10; SL, ¶ 10; NR, ¶ 9; SS, ¶ 10;
AS, ¶ 10; MS, ¶ 10. ETL-APs
merely follow Defendant's
policies and procedures. Even if
the Court finds that the ETL-APs
"manage" Defendant's AP,
they do not qualify as
executives since Defendant
testified that AP is not a
department or division but
rather a "function" within a
"pyramid." MB, 24:9-24."
Spivak Decl., ¶ 16.
4. "Mr. Brewer testified that, to Lacks personal Sustained. Also
his knowledge, this is the 2014 knowledge (Fed. R. improper
version of Defendant's exempt Evid. 602); Lacks summary of
team member handbook that foundation, conclusory, evidence that
was made available to speculation (Fed. R. should speak for
Defendant's employees on its Evid. 702, 901). itself.
intranet. See MB, 151:18-152:12.
In spite of the Inadmissible hearsay Sustained.
expectations outlined in (Fed. R. Evid. 801).
Plaintiff's Memorandum of
Points and Authorities (Section Irrelevant and immaterial Overruled.
II(D)-II(F)), Defendant informs (Fed. R. Evid. 401).
its ETL-APs that it is "critical"
that they "continually" spend Improper legal argument. Sustained.
substantially more than 50% of
their time on leadership
responsibilities instead of
hourly tasks. Ex. 18,
TARGET NF-82-83.
Defendant lists "managing
performance," "rewarding
excellence," and "managing
guest issues" as examples of
"managerial" and "leadership"
responsibilities while listing
zoning, stocking, cashiering,
and unloading trailers and
moving boxes as examples of
"hourly" duties. Id.,
TARGET_NF-83. Defendant
also advises the ETL-APs in
writing that it expects them to
immediately clean up spills,
pick up objects on the floor, and
keep the floor clean and dry. Id.,
TARGET_NF-109. Defendant
fails to indicate whether it
views these tasks as "hourly,"
"leadership," or "managerial."
Id." Spivak Decl., ¶ 20.
5. "Defendant advises the ETL-APs Lacks personal Sustained.
that it will not subject them knowledge (Fed. R.
to "adverse action" for their Evid. 602); Lacks
self-audit responses. See Ex. 31. foundation, conclusory,
However, it does not indicate speculation (Fed. R.
whether their Store Team Evid. 702, 901).
Leaders ("STLs") may be
subjected to adverse actions for Inadmissible hearsay Sustained. The
their responses. Further, (Fed. R. Evid. 801). document speaks
Defendant instructs the ETL-APs for itself.
that failure to spend the
majority of their worktime on Irrelevant and immaterial Overruled.
"managerial" and "leadership" (Fed. R. Evid. 401).
duties is cause for an immediate
report to their supervisor. Ex. Improper legal argument. Sustained.
18, TARGET NF-83.
Defendant repeatedly cautions
their ETL-APs in writing (and
all other ETLs for that matter)
that they are at-will employees
and therefore it can terminate
their employments at any time
for any reason. Ex. 18,
TARGET NF-69,
TARGET NF-80. Specifically,
it warns,
Target will not, and team
members should not, interpret
any verbal or written statement,
policies, practices or
procedures, including this
handbook, as altering their at-will
status. In addition, Target
practices or procedures do not
guarantee employment for any
particular length of time or limit
how that employment may end.
Id. Defendant also advises its
ETL-APs that it will extend
promotion opportunities to
those who "perform consistent
with our expectations of
excellence." See Ex. 18,
TARGET_NF-81 (emphasis
added)." Spivak Decl., ¶ 21.
6. "Plaintiff completed two self-audits Lacks personal Sustained.
as an ETL-AP in which knowledge (Fed. R.
she stated she spent (1) no time Evid. 602); Lacks
performing many of the foundation, conclusory,
managerial tasks, (2) speculation (Fed. R.
significantly different portions Evid. 702, 901).
of her worktime performing
different managerial tasks year Inadmissible hearsay Sustained.
to year, and (3) absolutely no (Fed. R. Evid. 801).
time on nonmanagerial tasks.
See Exs. 23, 24. Plaintiff also Irrelevant and immaterial Overruled.
stated in both audits to have (Fed. R. Evid. 401).
spent no time "managing store
facilities as [leader-on-duty Improper legal argument. Sustained.
("LOD")]." See Exs. 23, 24.
Defendant did not follow up
with Plaintiff about any of these
irregularities, nor did Defendant
subject her to counseling or
discipline. See DNF, ¶ 14.
Defendant does not investigate
such irregularities. See MB,
105:3-107:7." Spivak Decl.,
¶ 22.
7. "Defendant instructs its ETL-APs Lacks personal Sustained.
that it expects them to knowledge (Fed. R.
spend more than 50% of their Evid. 602); Lacks
time on "managerial" tasks and foundation, conclusory,
duties. In the same vein, speculation (Fed. R.
Defendant instructs its ETL-APs Evid. 702, 901).
that it is "critical" that they
"continually" spend
substantially more than 50% of Inadmissible hearsay Sustained.
their time on leadership (Fed. R. Evid. 801).
responsibilities instead of
hourly tasks. However, Irrelevant and immaterial Overruled.
Defendant provides very little (Fed. R. Evid. 401).
explanation of what it means by
"managerial" and "leadership," Improper legal argument Sustained.
other than to offer additional and conclusion.
ambiguous terms such as
"managing performance,"
"rewarding excellence,"
"managing guest issues." Ex.
18, TARGET NF-83.
Defendant tasks at least one
category of hourly employee,
the TLs, with a host of LOD
tasks that they share with the
ETL-APs and that ETL-APs
perform for most of their
worktime. Defendant trains all
of its ETL-APs to perform LOD
work and expects them to
perform such work "as trained."
Ex. 18, TARGET_NTF-108.
Whether hourly work is
considered exempt or
nonexempt work depends on its
purpose. See Plaintiff's
Memorandum of Points and
Authorities, Section
VI(C)(2)(b). However,
Defendant does not explain or
limit the purpose of the ETL-APs
performing hourly work.
Rather, Defendant implies that
it expects all of its leaders to
have the freedom to perform
hourly or manual work as the
need arises and to the extent
they deem necessary. Further,
Defendant does nothing to
eliminate the confusion that
must result from these contrary
statements." Spivak Decl., ¶ 23.
8. "Defendant's statements appear Improper legal argument Sustained.
to be at odds with its instruction and conclusion.
to its ETL-APs to occasionally
perform "hourly" tasks and Lacks personal Sustained.
duties. Again, Defendant knowledge (Fed. R.
provides little explanation of Evid. 602); Lacks
what it means by "hourly" other foundation, conclusory,
than four examples: zoning, speculation (Fed. R.
stocking, cashiering, and Evid. 702, 901).
unloading trailers and moving
boxes. Ex. 18, TARGET NF-83. Inadmissible hearsay Sustained.
Does "hourly" refer to (Fed. R. Evid. 801).
duties that Defendant tasks its
hourly TLs with performing Irrelevant and immaterial Overruled.
such as the duties of (Fed. R. Evid. 401).
Defendant's LODs? Defendant
does not say, though there is no
dispute that Defendant requires
its ETL-APs to perform such
hourly TL duties throughout
most of the workweek. See Ex.
27; DNF, ¶¶ 4-5, AA, ¶¶ 3-4,
DEA, ¶¶ 3-4, RH, ¶¶ 3-4, DJ, ¶¶
3-4, SL, ¶¶ 3-4, NR, ¶¶ 3-4, SS,
¶¶ 3-4, AS, ¶¶ 3-4, MS, ¶¶ 3-4.
Defendant also advises the
ETL-APs in writing that it
expects them to immediately
clean up spills, pick up objects
on the floor, and keep the floor
clean and dry. Ex. 18,
TARGET NF-109. Defendant
does not explain, however, how
they can avoid performing these
functions themselves when
there are insufficient hourly
employees available to delegate
them to. Hence, whether
Defendant views "immediately
cleaning spills" and like duties
as exempt or nonexempt is at
best unclear. The Court must
make a determination of
Defendant's expectations for
these duties for an ETL-AP
who contends she is not-exempt."
Spivak Decl., ¶ 24.
9. "There is no doubt that Improper legal argument Sustained.
Defendant informs its ETL-APs and conclusion.
that failure to spend the
majority of their worktime on Lacks personal Sustained.
"managerial" and "leadership" knowledge (Fed. R.
duties is cause for an immediate Evid. 602); Lacks
18, TARGET_NF-83. Whether foundation, conclusory,
Defendant's characterization of speculation (Fed. R.
the duties as "managerial" or Evid. 702, 901).
"leadership" equates to exempt Inadmissible hearsay Sustained.
or non-exempt is the primary (Fed. R. Evid. 801).
issue before this Court.
Regardless, Defendant makes Irrelevant and immaterial Overruled.
abundantly clear to its ETL-APs (Fed. R. Evid. 401).
that it expects them to state in
the self-audits that they perform
what Defendant deems
"managerial" duties most of the
time — whether or not they
agree with Defendant's
depictions of duties as
"managerial" and whether they
perform exempt duties more
often than not. To ensure the
ETL-APs assign most of their
time to the vague "managerial"
duties listed in the self-audit,
Defendant offers a powerful
incentive: In the Exempt
Employee Handbook,
Defendant cautions the ETL-APs:
Target can terminate the
employment relationship at
anytime.
Target can terminate the
employment relationship for
any reason.
Target verbal and written
statements do not prevent
Target from terminating the
employment relationship at any
time or for any reason.
Target's procedures do not
guarantee employment or how
Target will end it.
See Ex. 18 (TARGET NF-000069).
Defendant also
advises its ETL-APs that it will
extend promotion opportunities
to those who "perform
consistent with our expectations
of excellence." Ex. 18,
TARGET_NF-81 (emphasis
added). These statements
eliminate any faith that an ETL-AP
may place in the assurance
of Defendant's self-audit cover
letter that Defendant will not
take "adverse action" against
him for his self-audit responses.
Ex. 31. An ETL-AP would be a
fool to assign any significant
amount of time to "hourly"
tasks in the self-audit whether
or not he agrees with
Defendant's depiction of tasks
as "hourly" and "managerial."
Ex. 18, TARGET NF-69,
TARGET_NF-80." Spivak
Decl., ¶ 25.
10. "While Defendant offers Improper legal argument Sustained
protection from adverse action and conclusion.
to the ETL-APs, there is no
evidence of assurances to their Lacks personal Sustained.
STL supervisors that Defendant knowledge (Fed. R.
will not punish them for their Evid. 602); Lacks
subordinates' responses to the foundation, conclusory,
audit. Therefore, the wise STL speculation (Fed. R.
will encourage his subordinate Evid. 702, 901).
ETL-AP to assign higher
percentages of worktime to the Irrelevant and immaterial Sustained.
self-audits "managerial" tasks (Fed. R. Evid. 401).
than to the "hourly" tasks. It
can be no surprise that
Defendant obtained audit
results that ETL-APs spend
most of their time on
"managerial" duties. See MB,
108:18-109:4." Spivak Decl.,
¶ 26.
11. "There are additional reasons Improper legal argument Sustained.
why the self-audit results are and conclusion.
not reliable proof of
Defendant's expectations. The Lacks personal Sustained.
tasks Defendant lists in the knowledge (Fed. R.
audits are often generic and Evid. 602); Lacks
lacking explanation. The audit foundation, conclusory,
format does not permit the speculation (Fed. R.
Evid. 702, 901).
ETL-APs to state that they Inadmissible hearsay Sustained.
concurrently perform (Fed. R. Evid. 801).
"managerial" and "hourly"
tasks, e.g. training subordinates Irrelevant and immaterial Sustained.
on zoning while performing (Fed. R. Evid. 401).
zoning duties. Additionally, in
the self-audits, Defendant
directs the ETL-APs to state
their "managerial" duties in
advance of the non-managerial
duties." Spivak Decl., ¶ 27.
12. "Defendant makes no attempt to Improper legal argument Sustained.
check on irregularities in the and conclusion.
ETL-AP self-audits as long as
the ETL-APs state that they Lacks personal Sustained.
spend more than 50% of their knowledge (Fed. R.
worktimes performing Evid. 602); Lacks
"MANAGERIAL Job Duties." foundation, conclusory,
Plaintiff completed two self-audits speculation (Fed. R.
audits as an ETL-AP in which Evid. 702, 901).
she stated to have spent (1) no
time performing many of the Irrelevant and immaterial Overruled.
managerial tasks, (2) (Fed. R. Evid. 401).
significantly different portions
of her worktime performing
different managerial tasks year
to year, (3) absolutely no time
on nonmanagerial tasks, and (4)
no time "managing store
facilities as LOD" (even though
Defendant scheduled all ETL-APs
to perform LOD duties at
least three out of their five
workdays). See Exs. 23, 24.
Despite her impossible answers,
Defendant did not follow up
with Plaintiff about her self-audits.
DNF, ¶ 14. Clearly,
Defendant's only interest in the
self-audits is to conjure a
defense of their overtime-exempt
classification of the
ETL-APs. Therefore, the self-audits
cannot be relied upon to
accurately represent how the
ETL-APs are spending their
worktime and the Court should
not accept at face-value
Defendant's depictions of
"hourly" and "managerial."
Further, Defendant cannot rely
on the self-serving self-audits to
show that its misclassification
of the ETL-APs was not willful,
knowing, or intentional."
Spivak Decl., ¶ 28.
13. "Mr. Brewer testified that, to Inadmissible hearsay Sustained.
his knowledge, this is a (Fed. R. Evid. 801).
document that Defendant
defines its leadership Irrelevant and immaterial Overruled.
expectations in. See MB, 72:7-16. (Fed. R. Evid. 401).
The document is made
available to Defendant's
employees on its intranet,
Defendant requires ETLs to
"adapt[] appropriately to
competing demands and
shifting priorities"; "accept[]
responsibility for team or work
center performance"; and
"take[] personal responsibility
to make decisions and take
action." Ex. 20. Similarly,
Defendant requires TLs to
"deal[] constructively with
mistakes and problems";
"`confront[] difficult issues to
ensure they are addressed";
"willingly offer[] help or
assistance to others when
needed"; and "work[] steadily
at repetitive or routine tasks to
make sure they are completed."
Id." Spivak Decl., ¶ 30.
14. "Mr. Brewer testified that, to Inadmissible hearsay Sustained.
his knowledge, this is part of (Fed. R. Evid. 801).
Defendant's LOD training
material which is provided to
the ETL-APs during their
training. See MB, 185:6-186:4."
Spivak Decl., ¶ 32.
15. "A true and correct copy of a Irrelevant and immaterial Overruled.
spreadsheet prepared by (Fed. R. Evid. 401).
Plaintiff's counsel which
compares Defendant's 2015 and Improper legal argument. Overruled.
2016 audit documents
concerning Plaintiff (Ex. 23,
TARGET NF-000010) based
on Plaintiff's counsel's review
is attached as Exhibit 23."
Spivak Decl., ¶ 33.
16. "Defendant annually requires Lacks personal Sustained.
its ETL-APs to complete a knowledge (Fed. R.
survey that asks them to state Evid. 602).
the percentage of their
worktime spent on a list of Inadmissible hearsay Sustained.
duties. See Ex. 14, 95:4-8. (Fed. R. Evid. 801).
Defendant provides the same
survey to all ETL-APs. Ex. See Irrelevant and immaterial Overruled.
14, 97:20-25. In 2016, the list (Fed. R. Evid. 401).
contained 49 duties, of which
35 "MANAGERIAL Job Improper legal argument. Sustained.
Duties" were listed first,
followed by 14 "NON-MANAGERIAL
Job Duties" . . .
Defendant lists several
generic duties under
"MANAGERIAL Job Duties"
which it fails to describe, such
as "Developing and ensuring
adherence to safe and secure
programs and practices
(including partnering with STL
and [LOD] regarding premise
and perimeter security, tracking
safe and secure issues,
identifying store safe and secure
trends, developing and
implementing response plans,
making sure all team members
are trained and certified for
their positions)" and LOD
duties. Id. Under "NON-MANAGERIAL
Job Duties,"
Defendant anticipates that the
ETL-APs to will unload, move,
stock, and zone merchandise,
serve guests, ring up sales and
handle cash, clean the store,
perform clerical tasks, and
perform non-exempt AP tasks
such as surveillance,
apprehension, affixing alarm
tags, locking peghooks,
counting of merchandise, and
installing surveillance cameras.
The audit does not permit the
ETL-APs to state that they
concurrently perform
"managerial" and "hourly"
tasks, e.g. training subordinates
on zoning while performing
zoning duties. Id." Spivak Decl.,
¶ 34.
17. "Defendant also requires the Lacks personal Sustained.
ETL-APs to "ensure the goals knowledge (Fed. R.
and expectations are satisfied"; Evid. 602); Lacks
"quickly identify and foundation, conclusory,
implement solutions to any in-stock, speculation (Fed. R.
presentation, pricing, Evid. 702, 901).
signing or safety issues";
"Complete additional duties as Inadmissible hearsay Sustained.
needed or required"; "Model . . . (Fed. R. Evid. 801).
The Vibe service behaviors";
"model . . . guest service Improper legal argument. Sustained.
behaviors"; "respond quickly to
guest requests"; "ensure all
areas of the store are in stock
and zoned to grow sales"; "Use
verbal and physical de-escalation
techniques to
minimize the threats to guests
and team members"; and
"Provide a clean, safe and
secure shopping and working
environment." See Ex. 24.
Defendant does not inhibit the
ETL-APs from performing such
duties as need requires. Id."
Spivak Decl., ¶ 35.
18. "Mr. Brewer testified that, to Inadmissible hearsay Sustained.
his knowledge, this document (Fed. R. Evid. 801).
was updated on February 25,
2016 and made available to the
ETL-APs on Defendant's
intranet. See MB, 59:13-61:2."
Spivak Decl., ¶ 37.
19. "Defendant testified that it Lacks personal Sustained.
expects its ETL-APs to work at knowledge (Fed. R.
least 10 hours per workday and Evid. 602); Lacks
about 50 to 60 hours in a foundation, conclusory,
workweek performing the tasks speculation (Fed. R.
it assigns to them. See MB, Evid. 702, 901).
45:3-7. In the ETL-AP job
descriptions, Defendant states Inadmissible hearsay Sustained.
under "Availability," "Flexible (Fed. R. Evid. 801).
work schedule (e.g., nights,
weekends, holidays, and long Irrelevant and immaterial Overruled.
hours) and regular attendance (Fed. R. Evid. 401).
necessary."; Ex. 26,
TARGET_NF-60. Defendant Improper legal argument Sustained.
uniformly classifies the ETL-APs and conclusion.
as exempt, salaried
employees and does not pay
additional wages to any of them
when they work in excess of
eight hours in a day or 40 hours
in a week. See DNF, ¶ 2, AA, ¶
2, DEA, ¶ 2, RH, ¶ 2, DJ, ¶ 2,
SL, ¶ 2, NR, ¶ 2, SS, ¶ 2, AS, ¶
2, MS, ¶ 2; e.g., Exs. 12, 34.
Defendant maintains records of
the ETL-APs' work schedules
which shows the hours it
expects them to work and the
length and frequency of LOD
shifts. See, e.g., Exs. 27, 32.
Defendant's work schedules do
not show meal or rest periods
for its ETL-APs. Defendant has
no records of ETL-APs meal
and rest periods. In this policy
and scheduling vacuum, it is no
surprise that ETL-APs take
"working" rest and meal
periods." Spivak Decl., ¶ 38.
20. "Plaintiff testified that, to her Inadmissible hearsay Sustained.
knowledge, these are the text (Fed. R. Evid. 801).
message conversations between
Plaintiff and STL Katherine
Clark. NF, 258:18-259:2."
Spivak Decl., ¶ 41.
21. "Mr. Brewer testified that, to Inadmissible hearsay Sustained.
his knowledge, this is an email (Fed. R. Evid. 801).
Defendant sends out with the
self-audit. See MB, 91:20-92:22."
Spivak Decl., ¶ 43.
22. "Ms. Faraji declared that, to her Inadmissible hearsay Sustained.
knowledge, this is the email that (Fed. R. Evid. 801).
she sent to Natalie Velazquez
on February 29, 2016 with the
monthly Executive Schedule for
March of 2016 attached. See
DNF, ¶ 24." Spivak Decl., ¶ 44.
23. "Mr. Brewer testified that, to Inadmissible hearsay Sustained.
his knowledge, Defendant lists (Fed. R. Evid. 801).
in this document the daily tasks
that it expects its ETL-APs and
STLs to perform. See MB,
196:21-197:14." Spivak Decl.,
¶ 45.
24. "Plaintiff contends that Inadmissible hearsay Sustained. Also
Defendant willfully, (Fed. R. Evid. 801). improper
intentionally, and knowingly argument.
failed to pay the ETL-APs all
final wages and provide them
with accurate wage statements
due to its continued Irrelevant and immaterial Sustained.
classification of the ETL-APs in (Fed. R. Evid. 401).
the wake of the Gifford lawsuit
and its multiple declarations of
ETLs showing they performed
hourly work most of the time."
Spivak Decl., ¶ 54.
25. "Mr. Brewer testified that, to Inadmissible hearsay Sustained.
his knowledge, this is (Fed. R. Evid. 801).
Defendant's LOD check list and
is made available to the
positions that can serve as
LODs. See MB, 198:11-20."
Spivak Decl., ¶ 55.
26. "Defendant outlines and Lacks personal Sustained.
requires ETL-APs to follow knowledge (Fed. R.
detailed policies and Evid. 602); Lacks
procedures. See, e.g., Exs. 43, foundation, conclusory,
44. Although ETL-APs prepare speculation (Fed. R.
performance evaluations, Evid. 702, 901).
Defendant requires STLs to
review each evaluation, and Improper legal argument Sustained.
others at Target determine their and conclusion.
uniform structure and criteria
are dictated by corporate and
uniform across stores. See, e.g.,
Ex. 19; see MB, 182:1-183:1.
ETL-APs do not have the
discretion to change the form or
criteria for the evaluation of
their employees. MB, 182:1-183:1.
Similarly, Defendant's
corporate office outlines "very
specific" AP policies (referred
to as "AP Directives") and
requires its exempt and
nonexempt AP employees to
follow them. MB, 154:13-20,
223:21-224:2. ETL-APs have
little or no discretion to deviate
from the set procedures in any
fashion. Indeed, Defendant
reprimands those who fail to
follow corporate procedures
even when an ETL-AP
determines that it is necessary.
See, e.g., Ex. 28. Further, the
STLs and Asset Protection
Business Partners ("APBPs")
closely monitor the ETL-APs
and assign them specific tasks.
See, e.g., Ex. 29, NF-94; Exs.,
49, 50; see DNF, ¶ 9, AA, ¶ 8,
DEA, ¶ 8, RH, ¶ 8, DJ, ¶ 8, SL,
¶ 8, NR, ¶ 8, SS, ¶ 8, AS, ¶ 8,
MS, ¶ 8." Spivak Decl., ¶ 58.
27. "Mr. Brewer testified that, to Inadmissible hearsay Sustained.
his knowledge, Defendant lists (Fed. R. Evid. 801).
in this document "specific items
[it] want[s] [the LOD] to look
at" during the sales floor walk.
See MB, 225:22-226:16."
Spivak Decl., ¶ 60.
28. "A true and correct copy of a Inadmissible hearsay Sustained.
text message from STL Jennifer (Fed. R. Evid. 801).
Silva, bates labeled by Eduardo
Arvilla as EA000180, is
attached as Exhibit 48. Mr.
Arvilla testified that, to his
knowledge, these are text
messages exchanged between
him and Ms. Silva. EA, 383:12-384:5;
392:12-393:9." Spivak
Decl., ¶ 62.
29. "A true and correct copy of an Inadmissible hearsay Sustained.
email from STL Jennifer Silva, (Fed. R. Evid. 801).
bates labeled by Eduardo
Arvilla as EA000242, is
attached as Exhibit 49. Mr.
Arvilla testified that, to his
knowledge, this was an email
Ms. Silva sent to all ETLs in the
store. EA, 399:12-399:17."
Spivak Decl., ¶ 63.
30. "To the best of my knowledge, Lacks personal Overruled.
neither Plaintiff nor I have any knowledge (Fed. R.
conflicts of interest with the Evid. 602); Lacks
absent class members in this foundation, speculation
case." Spivak Decl., ¶ 64. (Fed. R. Evid. 701, 702,
901).
Improper legal Overruled.
conclusion. Whether the
declarant or plaintiff has
any conflicts of interest
with the putative class
members is a legal issue
for the Court to decide,
not a fact.
31. "In addition to the duties stated Legal argument and Sustained.
in Plaintiff's Memorandum of conclusion.
Points and Authorities (Section
VI(C)), the Court must also
determine whether the
following duties are exempt or
nonexempt:
1) Lead with respect,
empathy, confidence and
courage (Ex. 26);
2) Act with integrity and lead
by example (Ex. 26);
3) Be accountable for. your
performance and continuously
improve; invest time in your
development by actively
seeking opportunities to grow
and asking for feedback from
team, peers and leaders (Ex.
26);
4) Be present and on time as
scheduled (Ex. 26);
5) Foster an inclusive,
diverse, safe and secure culture;
create an environment of
openness, trust and recognition
and reward great performance
(Ex. 26);
6) Help assess, select and
retain top talent at the hourly
team member and team leader
level and develop a talented
team; plan for right person,
right place, right time (Ex. 26);
7) Hold team members and
team leaders accountable for
completing required training
and assess training progress
(Ex. 26);
8) Invest time in developing
and holding others accountable
by teaching, coaching, training
and delivering performance
feedback (Ex. 26);
9) Effectively execute and
lead the team through new
initiatives and change (Ex. 26);
10) Empower the team to
make the right decisions for
Target, our guests and our team
(Ex. 26);
11) Analyze schedules to
ensure proper staffing levels to
meet business needs (Ex. 26);
12) Lead and model a
compliance culture that
mitigates financial and legal
risk (Ex. 26);
13) Protect confidential guest
and team member information
(Ex. 26);
14) Drive a safety culture
focused on incident and injury
prevention by identifying,
reporting and responding to all
safety concerns and trends in a
timely manner; modeling safe
behaviors and encouraging
team members through
coaching and recognition;
ensuring productivity isn't
prioritized over safety (Ex. 26);
15) Support well-being
initiatives; drive advocacy and
adoption of wellness for team
members, guests and
community (Ex. 26);
16) Set challenging goals with
clear outcomes and establish
productive routines to ensure
progress (Ex. 26);
17) Evaluate performance
through metrics and financials;
identify the root causes of
problems and develop and
implement action plans to
achieve performance goals;
hold team leaders accountable
to doing the same (Ex. 26);
18) Educate team and guests
about our in-store and digital
offerings, services and loyalty
programs (Ex. 26);
19) Educate team about Target
policies and processes (Ex. 26);
20) Use all available resources,
including company
communication, to manage and
prioritize workload, provide
clear direction to the team,
educate the team about weekly
and seasonal promotions and
special events, and deliver
superior execution through Best
Practices (Ex. 26);
21) Champion new technology
and processes to grow sales and
incorporate digital routines into
store culture (Ex. 26);
22) Maintain brand standards
in all areas of the store,
including offstage areas (Ex.
26);
23) Lead the team to follow all
safety guidelines, operating
procedures, and product
freshness and quality standards
(Ex. 26);
24) Appropriately use and care
for in-store and personal
protective equipment; ensure all
items are accounted for per
equipment control guidelines
(Ex. 26);
25) Educate the team about
key business focuses and
measurements, and how
operational procedures impact
shortage and profitability (Ex.
26);
26) Leverage appropriate
escalation tools to solve process
and/or. guest issues; notify
leader as needed (Ex. 26);
27) Be financially responsible;
prioritize and drive continuous
improvement in total store
profitability and company
Earnings Before Interest and
Taxes (EBIT) (Ex. 26);
28) Ensure the team is
productive, providing great
service and the store is meeting
brand expectations (Ex. 26);
29) Build and lead a safe and
secure culture, focused on
physical security including key
and alarm protected areas,
incident prevention and incident
response by influencing store
team members (Ex. 26);
30) Lead a shortage-awareness
culture and reduce shortage by
resolving my Shortage
Dashboard exceptions and
ensuring merchandise
protection equipment is being
appropriately used (Ex. 26);
31) Lead a preventative theft
culture by proper assigning of
the TPS Daily Assignment
Cards based on theft activity
and shortage results (Ex. 26);
32) Lead and execute reporting
analysis and intelligence to
respond to theft trends to
resolve repetitive issues of
internal and external theft
trends (Ex. 26);
33) Conduct apprehensions
strictly adhering to AP
Directives (Ex. 26);
34) Lead the execution of
safety programs and best
practices to reduce team
member and guest safety
incidents and injuries (Ex. 26);
35) Partner with store and
district leadership during
security incidents or crisis
situations to minimize incident
impact (Ex. 26);
36) Lead compliance
regulation programs and
assessments as directed by
leadership (Ex. 26);
37) Ensure vendors are
adhering to all check-in
guidelines, are wearing name
badges and are operating only
during approved time (Ex. 26);
38) Build partnerships with
local Law Enforcement and
Emergency Management
Agencies by representing and
encouraging store team
participation in community
events (Ex. 26);
39) Inspecting and monitoring
(including monitoring sales
and/or payroll, asking team
members about productivity or
their tasks, assessing conditions
and opportunities in the sales
floor, backroom or other areas
of the store) (Ex. 24);
40) Analyzing Operational
Performance (including analysis
of MyPerformance and other
operational reporting,
development of action plans to
address operational
opportunities, implement
follow-up on DTL and/or
leadership visits, completion of
selfassessments) (Ex. 24);
41) Instructing and directing
(including prioritizing and
assigning tasks to your teams)
(Ex. 24);
42) Training, developing,
providing recognition and
coaching your team members
(including team huddles, chat
sessions, team development,
overseeing and participating in
training of new team members,
conducting and facilitating New
Team Member Orientation,
demonstrating skills that team
members need to perform their
duties, instructing and
monitoring team members
regarding appropriate meal
periods and rest breaks) (Ex.
24);
43) Participating in leadership
learning groups and training
groups (Ex. 24);
44) Planning and scheduling
(including attending leadership
meetings, statuses, planning for
transitions, key ads and special
events, setting priorities and
creation of task lists, reviewing
and analyzing reports,
communications from HQ or
leaders, scheduling of team
members) (Ex. 24);
45) Managing merchandise
transitions and/or adjacencies
(including transition planning,
scheduling, recapping/follow
up). This does not include
stocking. (Ex. 24);
46) Managing in-stocks
(including research and DSD
store order responsibilities,
pricing and presentation). This
does not include stocking. (Ex.
24);
47) Managing stocking
functions, including out-of-stock
issues (including ensuring
timely execution of
replenishment, receiving,
reverse logistics and backroom
processes to ensure the
salesfloor is in stock) (Ex. 24);
48) Providing performance
feedback (feedback on
completion of daily
assignments, attending
contribution meetings, writing
and delivering reviews, using
the counseling and corrective
action process) (Ex. 24);
49) Identifying staffing needs
(including developing a staffing
forecast, recruiting, reviewing
applications, interviewing and
making or participating in
decisions related to hiring,
promotions, and terminations)
(Ex. 24);
50) Managing guest issues
(including dealing with guests
who ask to speak to a manager
and/or a guest who is referred
by a team member because of a
special issue). This does not
include the serving of guests.
(Ex. 24);
51) Managing vendors
(including communicating
space needs and inventory
information) (Ex. 24);
52) LOD managerial
responsibilities/managing store
facilities (including managing
guest expectations, identifying
opportunities and creating
solutions) (Ex. 24);
53) Managing profit (including
controlling payroll) (Ex. 24);
54) Managing special issues
(including conducting
investigations) (Ex. 24);
55) Managing legal
compliance (including
partnering with STL and ETLs
to ensure that teams are
following meal period and rest
break policy requirements,
adhering to all minor work
rules, ensuring all team
members are paid properly and
timely) (Ex. 24);
56) Managing team
development (including
ensuring all team members
understand and execute their
Core Roles, fostering a learning
environment by leading training
and development programs,
identifying and supporting
potential promotion candidates)
(Ex. 24);
57) Managing "team brand"
presentation (including ensuring
three Team Colors Policy is
consistently applied to all team
members and name badges are
worn) (Ex. 24);
58) Managing employee
relations (including responding
to team member concerns and
issues promptly, investigating
issues thoroughly and neutrally,
escalating and partnering with
HRBP as appropriate,
administering leave of absence
policies and processes in
partnership with Hewitt,
managing Workers'
Compensation) (Ex. 24);
59) Managing team
performance (including
completing accurate
assessments of performance and
potential, aiding development
of personal performance,
assisting leaders with coaching
and corrective action, serving as
a third-party participant in
performance conversations,
assisting STL in the
development of ETLs, Team
Leaders and Interns, facilitating
Contribution Meetings) (Ex.
24);
60) Ordering supplies
(including HR supplies, New
Hire Packets, other office
supplies) (Ex. 24);
61) Retaining Team Members
(including using company
retention programs to monitor
store culture and discussing
patterns with HRBP and STL,
analyzing turnover rates and
developing plans to reduce it,
ensuring that teams are giving
recognition, soliciting team
member feedback through
surveys, chat sessions,
facilitating open
communication within the
store) (Ex. 24);
62) Ensuring all AP teams and
LODs establish and maintain a
safe and secure culture
(including training AP teams on
safe and secure programs,
identifying and discussing safe
and secure issues particular to
your store, addressing safe and
secure issues immediately,
monitoring all safety-related
equipment to ensure proper
functioning and following-up
on needed repairs, sharing and
establishing partnerships with
the AP mission) (Ex. 24);
63) Minimizing theft and fraud
(including utilizing reports,
protection programs,
intelligence and equipment to
identify theft and fraud issues,
develop and implement
solutions that minimize theft
and maximize sales) (Ex. 24);
64) Managing shortage issues
(including identifying shortage
issues and participating in
developing a plan to address
them) (Ex. 24);
65) Managing crisis situations
(including robberies or
violence-related incidents and
communicating to team
members regarding how to
handle these types of situations)
(Ex. 24);
66) Impacting store profit by
prioritizing company focus
areas (including providing
direction to team members on
focus areas and opportunities
that exist at your location and
how they can impact
profit/shortage) (Ex. 24);
67) Managing merchandise
protection programs to
minimize theft and maximize
sales (including providing
direction, researching and
providing answers to LODs to
manage the program and to
team members to properly
execute the program) (Ex. 24);
68) Managing cash (including
researching cash shortages,
conducting investigations as
necessary, partnerships with the
Cash Escalation Team). This
does not include ringing up
sales, (Ex. 24);
69) Building relationships
necessary to ensure safety
(including partnering with other
store's AP, local law
enforcement, community
agencies and other retailers to
share intelligence data and
minimize or mitigate
investigative issues and close
cases) (Ex. 24);
70) Managing overall store
safeness and security in the
store (including partnering with
other ETLs on theft issues,
monitoring alarms, key control,
physical security compliance)
(Ex. 24);
71) Overnight or early
mornings to conduct
surveillances and work with the
overnight team (including
conducting surveillances as
investigations dictate,
conducting required early
morning/overnights to identify
and resolve any safeness or AP
issues that exist directly with
the team and leadership) (Ex.
24); and
72) Managing store facilities
as LOD (including managing
guest expectations of Fast
Service and 60 second response
time) (Ex. 24)." Spivak Decl.,
¶ 74.
32. "Ms. Faraji declared that, to her Inadmissible hearsay Sustained.
knowledge, this is the time (Fed. R. Evid. 801).
sheet that she completed and
submitted to Target on
December 5, 2014 as an ETL-AP
trainee. See DNF, ¶ 3."
Spivak Decl., ¶ 87.
B. Target's Motion to Strike Putative Class Member Declarations
Target also moves to strike portions of the declarations of Plaintiff (ECF No. 49-2) and putative class members, Eduardo Arvilla, Robert Hodson, Matthew Sullentrop, Steven Lopes, Sharad Sabharwal, Dante Jones, Absalon Alonso, Andrew Sherwin, and Nolan Rak (ECF No. 49-3, Exs. 53-61), which Plaintiff submitted in support of her Motion for Class Certification. (ECF No. 71.) The Court OVERRULES most of Target's objections, with the exception of the following:
FARAJI DECLARATION (ECF 49-2)
Testimony Objections Ruling
5. "My managers at Target, Lacks foundation, conclusory, Sustained.
including STLs Linda speculation (Fed. R. Evid. 702, The declarant
Roebuck, Katherine 901). does not
Clarke, and Jamie provide any
Schossow, knowingly basis for her
required me to work conclusion
through my meal and rest that her
periods. While on duty, managers
my managers required me "knowingly"
to have my assigned required the
handheld transceiver declarant to
within reach and hearing work through
and respond to calls breaks.
immediately at all times.
STLs Linda Roebuck,
Katherine Clarke, and
Jamie Schossow
discouraged me from
leaving the store or
engaging in activities that
would prevent me from
monitoring the transceiver,
including breaks, and at all
other times. According to
Target management
employees who trained me
and supervised me, how
quickly I responded was
one of Target's criteria for
measuring my work
Performance." Faraji
Decl., ¶ 7.
ARVILLA DECLARATION (ECF 49-3, Exh. 53)
Testimony Objections Ruling
19. "My managers at Target, Lacks foundation, conclusory, Sustained.
including Store Team speculation (Fed. R. Evid. 702, The declarant
Leaders ("STLs") Jennifer 901). does not
Paige Silva, Tara Esparza, provide any
Katherine Clark, and Isela basis for his
Navarro, knowingly conclusion
required me to work that his
through my meal and rest managers
periods. While on duty, "knowingly"
my managers required me required the
to have my assigned declarant to
handheld transceiver work through
within reach and hearing breaks.
and respond to calls
immediately at all times.
Store Team Leaders
("STLs") Silva, Esparza,
Clark, and Navarro and
ETL-AP Collingwood
discouraged me from
leaving the store or
engaging in activities that
would prevent me from
monitoring the
transceiver, including
breaks, and at all other
times. According to Target
management employees
who trained me and
supervised me, my level
of responsiveness was one
of Target's criteria for
measuring my work
performance." Arvilla
Decl., ¶ 6.
HODSDON DECLARATION (ECF 49-3, Exh. 54)
Testimony Objections Ruling
31. "My managers at Target, Lacks foundation, conclusory, Sustained.
including Store Team speculation (Fed. R. Evid. 702, The declarant
Leaders ("STLs") Sam 901). does not
Dukes, John Williams and provide any
Sean Shugre, knowingly basis for his
required me to work conclusion
through my meal and rest that his
periods. While on duty, managers
my managers required me "knowingly"
to have my assigned required the
handheld transceiver declarant to
within reach and hearing work through
and respond to calls breaks.
immediately at all times.
STLs Sam Dukes, John
Williams and Sean Shugre
and ETL-AP Mike Eveilo
discouraged me from
leaving the store or
engaging in activities that
would prevent me from
monitoring the
transceiver, including
breaks, and at all other
times. According to Target
management employees
who trained me and
supervised me, my level
of responsiveness was one
of Target's criteria for
measuring my work
performance." Hodsdon
Decl., ¶ 6.
SULLENTROP DECLARATION (ECF 49-3, Exh. 55)
Testimony Objections Ruling
42 "My managers at Target, Lacks foundation, conclusory, Sustained.
including Store Team speculation (Fed. R. Evid. 702, The declarant
Leaders ("STLs") Amber 901). does not
Loranza, and Manny provide any
(unknown last name), basis for his
knowingly required me to conclusion
work through my meal that his
and rest periods. While on managers
duty, my managers "knowingly"
required me to have my required the
assigned handheld declarant to
transceiver within reach work through
and hearing and respond breaks.
to calls immediately at all
times. STLs Amber
Loranza, and Manny
(unknown last name) and
ETL-AP Richard Alvarez
discouraged me from
leaving the store or
engaging in activities that
would prevent me from
monitoring the
transceiver, including
breaks, and at all other
times. According to Target
management employees
who trained me and
supervised me, my level
of responsiveness was one
of Target's criteria for
measuring my work
performance." Sullentrop
Decl., ¶ 6.
LOPES DECLARATION (ECF 49-3, Exh. 56)
Testimony Objections Ruling
53. "My managers at Target, Lacks foundation, conclusory, Sustained.
including Store Team speculation (Fed. R. Evid. 702, The declarant
Leader ("STL") Brandon 901). does not
Eaton, knowingly required provide any
me to work through my basis for his
meal and rest periods. conclusion
While on duty, my that his
managers required me to managers
have my assigned "knowingly"
handheld transceiver required the
within reach and hearing declarant to
and respond to calls work through
immediately at all times. breaks.
STL Brandon Eaton
discouraged me from
leaving the store or
engaging in activities that
would prevent me from
monitoring the
transceiver, including
breaks, and at all other
times. According to Target
management employees
who trained me and
supervised me, my level
of responsiveness was one
of Target's criteria for
measuring my work
performance." Lopes
Decl., ¶ 6.
SABHARWAL DECLARATION (ECF 49-3, Exh. 57)
Testimony Objections Ruling
64. "My managers at Target, Lacks foundation, conclusory, Sustained.
including Store Team speculation (Fed. R. Evid. 702, The declarant
Leaders ("STLs") Richard 901). does not
(last name unknown), provide any
Merideth Klauser, Lydia basis for his
Stroup, Jasenka (last name conclusion
unknown), Gina Steffen, that his
Stephanie Shinok, managers
Salvador Vela, Stanton "knowingly"
Johnson, and Grace Kwon, required the
knowingly required me to declarant to
work through my meal and work through
rest periods. While on breaks.
duty, my managers
required me to have my
assigned handheld
transceiver within reach
and hearing and respond to
calls immediately at all
times. STLs Richard (last
name unknown), Merideth
Klauser, Lydia Stroup,
Jasenka (last name
unknown), Gina Steffen,
Stephanie Shinok,
Salvador Vela, Stanton
Johnson, and Grace Kwon
discouraged me from
leaving the store or
engaging in activities that
would prevent me from
monitoring the transceiver,
including breaks, and at all
other times. According to
Target management
employees who trained me
and supervised me, my
level of responsiveness
was one of Target's
criteria for measuring my
work performance."
Sabharwal Decl., ¶ 6.
JONES DECLARATION (ECF 49-3, Exh. 58)
Testimony Objections Ruling
75. "My managers at Target, Lacks foundation, conclusory, Sustained. The
including Store Team speculation (Fed. R. Evid. 702, declarant does
Leader ("STL") Tyler 901). not provide
Hersome, knowingly any basis for
required me to work his conclusion
through my meal and rest that his
periods. While on duty, my managers
managers required me to "knowingly"
have my assigned handheld required the
transceiver within reach declarant to
and hearing and respond to work through
calls immediately at all breaks.
times. STL Tyler Hersome
discouraged me from
leaving the store or
engaging in activities that
would prevent me from
monitoring the transceiver,
including breaks, and at all
other times. According to
Target management
employees who trained me
and supervised me, my
level of responsiveness
was one of Target's criteria
for measuring my work
performance." Jones
Decl., ¶ 6.
ALONSO DECLARATION (ECF 49-3, Exh. 59)
Testimony Objections Ruling
86. "My managers at Target, Lacks foundation, conclusory, Sustained.
including Store Team speculation (Fed. R. Evid. 702, The declarant
Leaders ("STLs") Gary 901). does not
(last name unknown) and provide any
Flavio Garzon knowingly basis for his
required me to work conclusion
through my meal and rest that his
periods. While on duty, managers
my managers required me "knowingly"
to have my assigned required the
handheld transceiver declarant to
within reach and hearing work through
and respond to calls breaks.
immediately at all times.
STLs Gary (last name
unknown) and Flavio
Garzon and ETL-AP
Athena Lemus
discouraged me from
leaving the store or
engaging in activities that
would prevent me from
monitoring the transceiver,
including breaks, and at all
other times. According to
Target management
employees who trained me
and supervised me, my
level of responsiveness
was one of Target's
criteria for measuring my
work performance."
Alonso Decl., ¶ 6.
SHERWIN DECLARATION (ECF 49-3, Exh. 60)
Testimony Objections Ruling
97. "My managers at Target, Lacks foundation, conclusory, Sustained.
including Store Team speculation (Fed. R. Evid. 702, The declarant
Leader ("STL") Marie 901). does not
Duenow, knowingly provide any
required me to work basis for his
through my meal and rest conclusion
periods. While on duty, that his
my managers required me managers
to have my assigned "knowingly"
handheld transceiver required the
within reach and hearing declarant to
and respond to calls work through
immediately at all times. breaks.
STL Duenow discouraged
me from leaving the store
or engaging in activities
that would prevent me
from monitoring the
transceiver, including
breaks, and at all other
times. According to Target
management employees
who trained me and
supervised me, my level of
responsiveness was one of
Target's criteria for
measuring my work
performance." Sherwin
Decl., ¶ 6.
C. Target's Motion to Strike Gifford Complaint and Declarations Submitted with Plaintiff's Request for Judicial Notice
In support of the Motion for Class Certification, Plaintiff requested the Court take judicial notice of a number of documents filed in a federal case in Minnesota, Gifford et al. v. Target Corp., No. 10-cv-1194 (D. Minn.). Target opposes the request for judicial notice and moves to strike the Gifford documents Plaintiff filed. Alternatively, Target asks that if the Court deny its request to strike, that the Court also consider the 359 declarations Target gathered in the Gifford case. (ECF No. 72.)
Pursuant to Federal Rule of Evidence 201, a Court may judicially notice a fact that is not subject to reasonable dispute because it is generally known within the Court's territorial jurisdiction or can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. Plaintiff requests the Court take judicial notice of the substance a number of declarations filed in the Gifford action, a case which also challenged Target's classification of ETL-APs as exempt. The Court finds that the substance of the Complaint and the declarations in the Gifford action do not qualify as judicially noticeable under Rule 201. Target strongly disputes the substance of the allegations in the Complaint and the Declarations, and many of those allegations are at issue in this case. Therefore, the Court GRANTS Target's Motion to Strike the Gifford Complaint and Declarations (ECF No. 72), and declines to take judicial notice of those documents. The Court also declines to consider the declarations Target submitted in the Gifford action.
D. Plaintiff's Objections to Target's Evidence
Plaintiff also objects to certain evidence Target submits in opposition to the Motion for Class Certification. (ECF No. 79-3.) Specifically, Plaintiff objects to portions of the declarations of Natalie Argueta (ECF No. 69-1, Tab 1), Michael Avelino (id. Tab 2), Chandler Bobin (id. Tab 3), Russell Bruce (Id. Tab 4), Andria Chavez (id. Tab 5), Tyler Estrada (id. Tab 6), Kristin Farr (id. Tab 7), Christina Galvan (id. Tab 8), Nicholas Hagemann (id. Tab 9), Gregory Hammer (id. Tab 10), Cerae Harris (id. Tab 11), Stephanie Hernandez (id. Tab 12), Jonathan Johnson (id. Tab 13), Tyler Kennedy (ECF No. 69-2, Tab 14), Lester King (id. Tab 15), Michael Kinnaird (id. Tab 16), Desiree McGowan (id. Tab 17), Chandra Mogan (id. Tab 18), Nicole Nicolai (id. Tab 19), Karim Oscoff (id. Tab 20), Adolfo Pando (id. Tab 21), Oscar Perez (id. Tab 22), Frederick Rutherford (id. Tab 23), Rocio Sierra (id. Tab 24), Alexander Stong (id. Tab 25), Leanne Tucker (id. Tab 26), Tarek Wally (id. Tab 27), Daniel Zamora (id. Tab 28), Paul F. White, Ph.D (ECF No. 67-1), Michael Brewer (ECF No. 65-2), Tonya Lizakowski (ECF No. 65-5), Ellie Cheung (ECF No. 62), Jennifer Gallardo (ECF No. 64), Stacy Puza (ECF No. 63), and John Williams (ECF No. 65-3). The Court has reviewed each of Plaintiff's objections, and Target's responses, and OVERRULES Plaintiff's objections.
The Court notes that Plaintiff objected to the entirety of the declarations from McGowan, Perez, and Wally, because Target originally filed them without the declarant's signatures. Target later provided the signature pages and filed a notice of errata. (ECF No. 81.)
Plaintiff also objects to portions of the declarations Target requested, in the alternative, for the Court to review from the Gifford action. Because the Court refuses to consider any declarations from the Gifford case, the Court declines to rules on Plaintiff's objections to those declarations.
IV. CONCLUSION
The Court's rulings on Target's pending Motions to Strike (ECF Nos. 70, 71, 72) and Plaintiff's evidentiary objections are provided above.
IT IS SO ORDERED.
