The Ninth Circuit affirmed a ruling Thursday that decertified a class of UPS Inc. supervisors who alleged the shipper failed to pay them for overtime and breaks, but refused to overturn a $1.4 million judgment for the individual plaintiff.  The district court properly evaluated the surveys and testimony plaintiff Michael Marlo provided to support class certification in order to decide whether the evidence could support a classwide finding, the appeals court ruled.

“The court did not improperly weigh the merits of the claim,” Judge Milan D. Smith Jr. wrote for a three-judge panel.  Marlo sued UPS in 2003, claiming the company misclassified full-time supervisors as exempt from overtime protections under California’s Industrial Welfare Commission Wage Order No. 9. Specifically, UPS improperly relied on an exemption for executive and administrative employees, Marlo claimed.  Although a California federal court initially granted certification of about 1,200 UPS supervisors, the court later decertified the class, finding Marlo failed to provide common proof that class members were engaged in nonexempt work.  Later, a jury awarded Marlo almost $250,000 in unpaid overtime, meal and rest period wages, and interest after deciding UPS misclassified him in two of the three positions he held. The court awarded Marlo almost $1.2 million in attorneys' fees and court costs.  In a separate, unpublished ruling Thursday, the Ninth Circuit found the evidence supported the jury's verdict, as well as the award of attorneys' fees, and affirmed a ruling denying UPS' motions for judgment as a matter of law and a new trial. (click on link to read full story)