Further, the use of statistical sampling in this case is distinguishable from the method rejected by the Supreme Court in Wal-Mart because, in that case, the plaintiffs proposed to use representative evidence as a means of overcoming the absence of a common policy. (Tyson, supra,136 S.Ct. at p. 1048.) In the only policy that plaintiffs were able to identify was that managers and supervisors had discretion in making employment decisions, a policy that in itself does not establish liability. supra, 564 U.S. at p. 355.) Here, when the trial court originally certified the class, it found that plaintiffs had met their burden. They did so by proffering substantial evidence of a common practice by showing (through deposition testimony of Wackenhut managers) that meal agreements distributed between January 2001 and April or May 2004 lacked the required revocability clause, that meal agreements distributed between April or May 2004 and May 2008 contained the revocability clause but were signed only by new employees, and that it was not until May 2008, that Wackenhut distributed agreements with a revocability clause to all employees. Thus, unlike Wal-Mart, where the use of statistical sampling was the only evidence establishing liability, here, the results of the statistical sampling (calculating an average percentage of meal agreements lacking revocation language for each year between 2001-2008) served as a manageability tool an alternative to burdensome production. – This case also is distinguishable from Wal-Mart because of the remedial nature of the Title VII claims at issue in that case. Title VII claims are susceptible to individualized determination of remedies because if a plaintiff prevails in showing that an employer has discriminated, the employer may be ordered to reinstate or hire the employee, with or without backpay.
Further, the use of statistical sampling in this case is distinguishable from the method rejected by the Supreme Court in Wal-Mart because, in that case, the plaintiffs proposed to use representative evidence as a means of overcoming the absence of a common policy. (Tyson, supra,136 S.Ct. at p. 1048.) In the only policy that plaintiffs were able to identify was that managers and supervisors had discretion in making employment decisions, a policy that in itself does not establish liability. supra, 564 U.S. at p. 355.) Here, when the trial court originally certified the class, it found that plaintiffs had met their burden. They did so by proffering substantial evidence of a common practice by showing (through deposition testimony of Wackenhut managers) that meal agreements distributed between January 2001 and April or May 2004 lacked the required revocability clause, that meal agreements distributed between April or May 2004 and May 2008 contained the revocability clause but were signed only by new employees, and that it was not until May 2008, that Wackenhut distributed agreements with a revocability clause to all employees. Thus, unlike Wal-Mart, where the use of statistical sampling was the only evidence establishing liability, here, the results of the statistical sampling (calculating an average percentage of meal agreements lacking revocation language for each year between 2001-2008) served as a manageability tool – an alternative to burdensome production. This case also is distinguishable from Wal-Mart because of the remedial nature of the Title VII claims at issue in that case. Title VII claims are susceptible to individualized determination of remedies because if a plaintiff prevails in showing that an employer has discriminated, the employer may be ordered to reinstate or hire the employee, with or without backpay.
B244383.DOCX