A California federal court judge granted certification to a one-store class of Kmart cashiers suing the retail giant for failure to provide seated workstations while denying the plaintiff’s attempt to certify a statewide class.

The case has a long and convoluted history, beginning with a different putative class action plaintiff, Lisa Garvey. She alleged that Kmart violated California Wage Order 7-2001(14), which reads: “All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.” Kmart failed to provide seats to checkout stand cashiers, according to Garvey’s complaint. U.S. District Court Judge William Alsup of the Northern District of California rejected a statewide class in the suit and certified a class limited to cashiers at a Kmart store in Tulare, California, where Garvey worked.

After a bench trial, Judge Alsup ruled for the defendant, holding that modifying stores to give cashiers seats would be “too unsafe, too inefficient, and too inconvenient to customers and cashiers.” However, he offered plaintiffs’ counsel a second shot at the suit, allowing the plaintiffs to add further representatives from other stores in the state to pursue their claims. Redlands store employee Collette Delbridge was then selected as the next putative class plaintiff. (Another proposed plaintiff was dismissed for lack of standing after she failed to include her claim against Kmart in her personal bankruptcy estate.)

Delbridge then attempted a second attempt at statewide class certification of cashiers. And for a second time, Judge Alsup denied the request.

Kmart stores throughout the state have different physical layouts, have varying numbers of registers, and make use of different checkout systems, the court noted, with some stores using a conveyor belt and others a bagging table. However, both sides presented evidence which “shows sufficient commonality of working conditions among cashiers to certify a Redlands class, and that plaintiff Delbridge’s own experience was sufficiently typical for class certification,” he wrote.

“Kmart devotes its class certification opposition to battling a potential statewide class,” Judge Alsup noted. “To the extent that its arguments can be translated to a class limited to a single store, they fall flat. Kmart does not demonstrate that differences in cashiers’ physical stature at the Redlands store, or other variances in the experiences of Redlands cashiers, overshadow the evidence of a common policy of not providing seats and the evidence which cashiers spend the majority of their time at their registers performing a limited set of checkout duties.”

Judge Alsup also emphasized that his decision reflected the second – and final – round of class certification. The plaintiffs were presented with an opportunity to produce additional evidence of commonality among cashier experiences across the state’s stores but “failed to meet their burden,” he concluded. The Tulare trial lasted nearly two weeks for a single store, the court noted and “[d]eveloping a factual record sufficient to cover all Kmart store permutations would require a long parade of experts and lay witnesses.”

In another twist to the suit, Delbridge objected to 400 “declarations” submitted by the defendant. She argued that the declarations were actually surveys conducted by the company asking cashiers to check boxes and fill in blanks to estimate the time spent engaging in various activities like twisting, reaching, and bending while working at their checkout stands. Although the surveys included a disclosure form that they were being collected by Kmart counsel for use in litigation and that the company’s interests were potentially adverse to the cashiers, the plaintiff argued that the collection and preparation of the documents violated California’s Rules of Professional Conduct.

While Judge Alsup disagreed, noting that precertification communications with potential class action members are “sometimes proper,” he said “the accuracy of the information is suspect.” Based on the existing record, the court said Kmart’s methods were not “fundamentally coercive or misleading,” but he issued an injunction prohibiting the company from engaging in any further communications with members of the certified class regarding the subject matter of the suit.

To read the order in Delbridge v. Kmart Corporation, click here.

Why it matters: “This is the last class that will be certified in this action,” Judge Alsup wrote in his certification order of a one-store class of Kmart cashiers. While ostensibly a victory for the Redlands store cashiers who will now try their claims, the order is also a lost chance for the plaintiffs. The court noted that the plaintiffs failed to take advantage of the opportunity presented to them after their loss in the first trial. Offered the ability to amend their complaint and attempt to add new putative class representatives, plaintiffs’ counsel only came up with two possible class reps – one of whom was dismissed (and the second challenged by the defense for a past felony conviction). In addition, the plaintiffs then failed to meet their burden to show commonality across Kmart store locations statewide, losing their shot at statewide certification or even certification of additional stores.