louisville/jefferson County Metro Government v. Saulette Davis, Class Representative ( 2021 )

RENDERED: NOVEMBER 5, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-1310-ME
LOUISVILLE/JEFFERSON
COUNTY METRO GOVERNMENT APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE OLU A. STEVENS, JUDGE
ACTION NO. 19-CI-005831
SAULETTE DAVIS, CLASS
REPRESENTATIVE APPELLEE
OPINION
REVERSING AND REMANDING
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BEFORE: ACREE, GOODWINE, AND JONES, JUDGES.
ACREE, JUDGE: Louisville/Jefferson County Metro Government (Metro)
appeals the Jefferson Circuit Court’s July 6, 2020 findings of fact, conclusions of
law, and order certifying the American Federation of State, County and Municipal
Employees (AFSCME) as a class. After review, we reverse and remand with
instructions to dismiss.
BACKGROUND
Kelvin Brown worked as a youth program worker for Metro Youth
Detention Services, a subdivision of the Louisville Metro Department of Public
Protection. While working in that position, Brown requested an accommodation
under the Americans with Disabilities Act of 1990 and was offered a modified duty
assignment with the Louisville Zoo until October 22, 2017.
During his time with the zoo, Metro advised Brown of vacant
positions for which he qualified, but he chose not to accept the offer of alternative
employment. Shortly before the expiration of Brown’s accommodated work
assignment at the zoo, he was hospitalized and requested medical leave.
Unfortunately, Brown exhausted all his available leave under the
Family Medical Leave Act (FMLA); thus, Metro informed him that it was unable
to grant him further leave and would need to terminate him. On November 5,
2017, Metro sent Brown a letter terminating his employment.
Throughout his employment, Brown was a member of the AFSCME,
Local 2629 (Union), with nearly 800 members. The Union and Metro were parties
to a collective bargaining agreement (CBA). The CBA provided for members of
the Union to challenge any dismissal through a grievance procedure.
On Brown’s behalf, the Union filed a grievance asking that Brown be
“made whole.” According to the CBA, Metro had 45 days to provide a
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determination on the grievance – which it failed to do. Because of this, the Union
advanced Brown’s claims to arbitration and the parties agreed Metro did not timely
respond, and Brown should be reinstated. This left the arbitrator to decide one
issue: what, if any, recompense was Brown due to make him whole other than
reinstatement? Ultimately, the arbitrator directed Metro to compensate Brown in
back pay and retroactive health insurance benefits. Following arbitration, Brown
was reinstated to his youth program worker position with no loss in seniority.
However, after reviewing Brown’s personnel and pay history, Metro informed
Brown it had discovered it had overpaid Brown by 37.73 hours prior to his
dismissal. Metro thus declined to pay Brown back pay and insurance benefits
during the time prior to his reinstatement.
Metro’s failure to pay Brown motivated the Union to file a complaint
in circuit court seeking class certification of all of Metro’s current and former
nonsupervisory employees. Metro moved to dismiss the suit as a class action, and
that motion was denied.
On June 25, 2020, the circuit court conducted a hearing to decide
whether to certify the class. The circuit court granted the motion to certify the
class defined in the complaint. This appeal followed.
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STANDARD OF REVIEW
Our standard of review of the circuit court’s decision whether to
certify a class is stated succinctly in Hensley v. Haynes Trucking LLC, 549 S.W.3d
430 (Ky. 2018):
A trial court’s determination as to class certification is
reviewed on appeal for an abuse of discretion. Under an
abuse-of-discretion standard, this Court may reverse a trial
court’s decision only if “the trial judge’s decision was
arbitrary, unreasonable, unfair, or unsupported by sound
legal principles.” “Implicit in this deferential standard is
a recognition of the essentially factual basis of the
certification inquiry and of the [trial] court’s inherent
power to manage and control pending litigation.”
Importantly, “As long as the [trial] court’s reasoning stays
within the parameters of [Kentucky Rules of Civil
Procedure (CR)] 23’s requirements for certification of a
class, the [trial court’s] decision will not be disturbed.”
Id. at 444 (citations omitted). “[T]he only question that is before us is: Was the
trial court’s decision to certify the class in this case ‘arbitrary, unreasonable, unfair,
or unsupported by sound legal principles?’” Id. at 445.
ANALYSIS
On appeal, Metro argues the circuit court abused its discretion by: (1)
failing to “probe beyond the pleadings”; (2) improperly certifying the class; (3)
adopting the Union’s proposed findings of fact, conclusions of law, and proposed
order; and (4) because a class action suit is improper for unions. We will only
address whether class certification was proper.
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Because of the strict parameters of interlocutory appeals,
the only question this Court may address today is whether
the trial court properly certified the class to proceed as
a class action lawsuit. We must focus our analysis on this
limited issue and in so doing scrupulously respect the
limitations of the crossover between (1) reviewing issues
implicating the merits of the case that happen to affect the
class-certification analysis and (2) limiting our review to
the class-certification issue itself. Most importantly, “As
the certification of class actions . . . is procedural, such
process cannot abridge, enlarge, or modify any
substantive right of the parties.” “The right of a litigant to
employ the class-action mechanism . . . is a procedural
right only, ancillary to the litigation of substantive
claims.”
Id. at 436-37 (citations omitted).
Metro argues the class should not be certified because it is neither
numerous nor do the members have a common issue of law or fact. We choose to
only address the issue of commonality.
Commonality is the requirement that questions of law or fact
are common among the class members. The class members must “‘have suffered
the same injury[,]’” and the claims must depend on a common contention capable
of class-wide resolution, “which means that determination of its truth or falsity will
resolve an issue that is central to the validity of each one of the claims in one
stroke.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350, 131 S. Ct. 2541, 2551,
180 L. Ed. 2d 374 (2011) (quoting General Telephone Co. of Southwest v. Falcon,
457 U.S. 147, 157, 102 S. Ct. 2364, 2370, 72 L. Ed. 2d 740 (1982)). What is
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important to the commonality inquiry is not simply that common questions exist in
the class, but “rather, the capacity of a class-wide proceeding to
generate common answers apt to drive the resolution of the litigation.” Wal-Mart
Stores, 564 U.S. at 350, 131 S. Ct. at 2551 (citation omitted) (emphasis in
original). “CR 23.01(b) requires that there must be questions of law or
fact common to the class, but it does not require that all questions of law or fact
be common.” Wiley v. Adkins, 48 S.W.3d 20, 23 (Ky. 2001). Importantly, the
questions common to the class members must “predominate over the questions
which affect individual members.” Id. Likewise, the circumstances among the
class members need not be completely identical “as long as there is a common
nucleus of operative facts.” Id. “What is important to the inquiry is whether the
defendant’s conduct was common as to all of the class members.” Nebraska
Alliance Realty Co. v. Brewer, 529 S.W.3d 307, 312 (Ky. App. 2017) (internal
quotation marks and citation omitted).
Here, the circuit court erroneously expresses the issue. It determined
two questions arise in this litigation: (1) whether there is a valid and enforceable
contract between the parties; and (2) whether Metro violated the CBA when it
refused to honor the Arbitrator’s Award by failing to make Brown whole. These
are not the correct questions. In fact, Metro admits being a party to the contract in
its answer. (Trial Record (TR) at 113.) The only relevant question is whether it
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was proper for Metro to unilaterally offset the arbitrator’s award – not whether
there was a breach of the contract. This issue relates to Brown and only to Brown.
It is not a class issue. There is nothing common to any other member in the Union
and it was unnecessary and excessive to make this a class action. The arbitration
award was solely for Brown. In fact, the proper case to be brought was to enforce
the arbitration award. There was no question that required the entire Union to
become involved on Brown’s behalf. The issue lies between Brown and Metro.
The circuit court abused its discretion. The “common questions of
law or fact” did not predominate over individual cases. In fact, there is no other
individual case. The circuit court’s expressions of concern are unfounded and even
unreasonable. Failure to satisfy a CR 23.02 criterion is fatal to certification of a
class in Brown’s case.
CONCLUSION
For the foregoing reasons, we reverse the Jefferson Circuit Court’s
class certification and remand the matter with instructions to dismiss the case.
ALL CONCUR.
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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Michael J. O’Connell David O’Brien Suetholz
I. Joel Frockt Peter J. Jannace
Louisville, Kentucky Louisville, Kentucky
ORAL ARGUMENT FOR ORAL ARGUMENT FOR
APPELLANT: APPELLEE:
I. Joel Frockt Peter J. Jannace
Louisville, Kentucky Louisville, Kentucky
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