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S01054 - Socket Set 45pc 3/8"Sq Drive 6pt WallDrive
Supplier: Jack Sealey Ltd | Brand: SEALEY | Product: S01054
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Details of S01054
o High grade carbon steel standard and deep WallDrive® sockets and accessories.
o Chrome Vanadium steel 45-tooth pear-head flip reverse ratchet wrench with quick socket release.
o Hardened and tempered with a fully polished finish for corrosion resistance.
o DuoMetric® principle ensures you get every size you are ever likely to need in both standard and deep sockets.
o Supplied in metal carry-case.
Barcode: 5051747881471
Warranty: Life
5.03 Kg
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Visit us at this location. A Think Blue representative from Blue Cross Blue Shield of Texas will be present to provide information sessions (Help Desk) on understanding health insurance, the Affordable Care Act, Marketplace, and explain your health insurance options and to answer your questions.
Saturday, October 22, 2016 9:00 AM - 1:00 PMCentral Time
Seton Medical Center Hays6001 Kyle ParkwayKyle, Texas 78640USA

subset: commoncrawl


text: Free eBooks for Nook, iPad & Sony Reader January 4 – 10 This post may contain affiliate links. Please see my full disclosure policy for details. January 4, 2011 By Tracie +1 Tweet Share PinShares 0 Kaplan is offering free eBooks January 4 – 10 for your Nook, iPad or Sony Reader. They have more than 130 free eBooks available from which to choose. Head here for more details. +1 Tweet Share PinShares 0 No related posts.


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"NO ...." - Naveen TikekarRead more reviews >>
>> Hotel AlphaPrint this page
Hotel Alpha
Maruti Mandir, Ratnagiri, Maharashtra - 415 612
Starting from Rs. 3,939
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Hotel Alpha, Ratnagiri - Overview
Amidst verdant landscape, this ideal leisure getaway is located near to the famous Maruti Mandir. There are luxury and deluxe rooms to choose from. Guests can enjoy Nature just by idling their time in the tranquil ambiance of the garden area. The uniqueness of this property is that there is generator back-up facility, which is through storage of solar rays.
This hotel offers 24hours room service, which is provided by well-trained staff.
Check-in time : From 12:00 pm
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Although not an official charity, we've been given TWO precious places for the London Triathlon by one of our fantastic supporters.
Choose from:
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- Get your FREE place (worth £75) by emailing us and agreeing to raise £450 minimum sponsorship.
If you have your own place, you can still join our team. Set up your fundraising page HERE


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Bob found his passion in home remodeling after creating beautiful, unique living spaces that brought families together. In 2009, he founded Sunroom Additions & Improvements and our Buffalo home remodeling company has grown since it was incorporated in 2011. Today, we adhere to the same standard of perfection, commitment to customer satisfaction, and friendly spirit that started it all.
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AT&T iPad hacker found guilty
Andrew Auernheimer, 27, was found guilty in a New Jersey court on one count of identity fraud and one count of conspiracy without authorization for his role in a 2010 security breach that exposed the email addresses and SIM ICC-ID numbers for 114,000 AT&T iPad users, Wired reports. Auernheimer and co-defendant Daniel Spitler extracted the data through a script — the site leaked e-mail addresses in response to ICC-IDs, and the script mimicked that behavior. As The Verge notes, Auernheimer faces two consecutive five-year felony sentences for the verdict. AT&T representatives confirmed during testimony that Auernheimer did not crack any codes, steal passwords, or break into AT&T's customer database, though he was found to have violated the 1986 Computer Fraud and Abuse Act. Auernheimer tweeted that he would appeal the verdict. Spitler plead guilty to the charges last year and accepted a plea bargain.
Related Stories
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- Apple releases third beta for iOS 10.2 and tvOS 10.1 to developers
- Report: New iPads coming in March, with new 10.9" borderless screen version
Hope you have fun in jail, you scum!
Posted by vultr3 on November 21, 2012 at 12:14 PM (CST)
This can affect a lot of AT&T iPad users who suffered from this situation. However, I am unable to understand how AT&T representatives confirmed that during testimony Andrew has not cracked any codes or stolen passwords or broken any AT&T customer database. Then why has he been found guilty?
Posted by SPINX INC. on November 30, 2012 at 2:10 AM (CST)
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Sleeping woman breaks legs in Cavendish crashFebruary 05,2014CAVENDISH A 20-year-old Springfield woman received serious injuries early Tuesday morning after she fell asleep in her car and proceeded to hit a tree.
Brandi Pelkey called 911 shortly after 4 a.m. to report her vehicle had crashed into a tree on Depot Street, Vermont State Police Trooper Nicholas Arlington reported.
Responders needed more than an hour to extract the driver. Pelkey, who wasnt wearing a seat belt, broke her legs and received severe lower body injuries, although authorities deemed none life-threatening. She was taken by helicopter to Dartmouth Hitchcock Medical Center in Lebanon, N.H.
Her 1996 Geo Prizm received heavy front-end damage and was destroyed.
Investigation revealed that Pelkey was traveling south on Route 103 when she fell asleep, Arlington said. Her vehicle left the roads, traveled down a slight embankment and struck the tree.MORE IN This Just InBARRE TOWN Firefighters faced a collection of adverse conditions as a house on Granitville Road... Full StoryWILLISTON Police are asking for help identifying the man who tried to steal roughly $800 worth ... Full StoryNEWBURY Police said somebody stole booze and change from a Welch Road residence. Full Story
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He who owns the Cloud, make the profits!
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Tosoh Bioscience GPC Glossary
By ID Digital Media Inc
Open iTunes to buy and download apps.
The GPC Glossary compiled by Tosoh Bioscience, provides the definitions of the important terms associated with gel permeation chromatography IN AN INTERACTIVE SEARCHABLE DATABASE. The glossary contains easy to understand definitions, examples, discussions, and illustrations that result in concise, clear information. SAVE YOUR FAVORITE PROFILES FOR EASY ACCESS TO DATA YOU RE-USE OFTEN. Tosoh Bioscience is a leader in the development of GPC columns and equipment. Whether you are characterizing aqueous or organic polymers you will benefit from this informative tool.
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Compatibility: Requires iOS 6.0 or later. Compatible with iPhone, iPad, and iPod touch.


text: Search Area For MH370 Drastically Reduced By New Satellite InfoPaul Thompson3/19/14 7:50pmFiled to: MH370Malaysia AirlinesFlight Club714EditPromoteShare to KinjaToggle Conversation toolsGo to permalink The search area for missing Malaysia Airlines flight 370 has been drastically reduced tonight as U.S. and British transportation officials have narrowed the search by refining satellite signals, suggesting two possible but close-by paths off the coast of Australia, heading toward the South Pole. Advertisement As reported by ABC News, U.S. officials were able to learn more valuable information from the satellite pings than first expected. Australian aircraft are searching the new area, along with a U.S. Navy Poseidon P-8 submarine hunter.The FBI is also in the process of examining a flight simulator confiscated from the home of Flight 370 Captain Zaharie Ahmad Shah. Authorities have yet to name any suspects, but are focusing on the investigation from the standpoint of it being a deliberate act. Advertisement In a Wednesday conference, acting Malaysia Transportation Minister Hishammuddin Hussein said:"I would like to take this opportunity to state that the passengers, the pilots and crew remain innocent until proven otherwise." The conference was marked by protests and outcries of grief from family members of Flight 370's passengers, accusing the government of being cheats and hiding the truth. Photo: Australian Government via ABC NewsReply71 repliesLeave a reply


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United Kingdom — IT and Management Training
Enrolling in IT and management training in the United Kingdom is now more convenient than ever before. Choose from hot topic areas such as SharePoint, Project Management, ITIL® and many more. Learning Tree's 6 AnyWare Learning Centres give students the option to take our courses locally – live online – in the United Kingdom, minimising commuting time and travel costs.
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Does this restaurant have parking?
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Is this a pub?
Thanks for helping!
My German husband loves German restaurants and this place did not disappoint. He had the schnitzel and I had the pretzels along with drinks. We were both very very please. It is no surprise why it is so popular.
We both had Beef rouladin, and it was very very good. I have been to many German restaurants in the Twin City area, and this surpassed all of them for its food. It was very busy on a Sunday night and they did not take reservations. We had to wait an hour but the food was worth it.
Highly recommend! The atmosphere and food here are both great! It's like a little German chateau with an American flare. There are big booths and big tables. Tables are spread far enough apart that you enjoy your own conversation. They have a flight of all the beers on tap for $1 each, which was extremely reasonable. The other drinks we...
My husband and I finally got around to eating at this restaurant. Although it's a German restaurant, I'm ashamed to say I didn't get a german dish(even though I'm german)! I'm always a sucker for ribeye dinners when they're on the menu, which was very, very good. The ribeye was a little fatty but I'm one of those people that...
We just love all the choices/selections on the menu at Black Forest. We have never been disapointed with the food quality, in fact most often delighted. The German food it authentic and taste great. The drinks are very good also.
A gem in the North woods. Just happened to stop and we were blown away by the food, waitstaff, ambiance. Real food prepared on site. Delicious and attractively presented. Everything one could wish for in a restaurant, and then some ( including good coffee). We are telling all of our family and friends; will definitely stop again on our way...
common tradition in Wisconsin is Friday night fish fry. Years ago it would be perch or cod but now people want salmon or other better white fish. Food here was great. we both had the salmon and I ordered my favorite boiled red cabbage as a side. both were delicious! Try it!
We were there on a Saturday evening. The bartender was pleasant but the drinks were overpriced. We were not hungry for German food but were told by the waitress that the pasta was delicious. We both had pasta and the portions were small and nothing spectacular. The salad was fresh but also very small. They don't serve any dinner rolls...
The Black Forest lives up to it's name in specializing in German food. On this visit, I had the saurbraten ($21.95), served with dumplings and red cabbage, and my wife had the black forest (veal) schnitzel ($22.95) which came with red cabbage and spaetzle. All were authentically German (and I know, having grown up in a German family and enjoying...
My wife and I have always struggled to find reliable places for date nights when we visit Three Lakes. Three years ago we found The Blue Heron and were very happy. But this year we wanted something different and everyone we ran into said we had to try the newly reopened Black Forest Pub & Grille.
Five years ago, when...
Own or manage this property? Claim your listing for free to respond to reviews, update your profile and much more.
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Woohoo..good good...maybe i shld try take brazil nut daily after ovulation..btw where to get these nuts? Anw me now in my 2nd so-iui cycle...on puregon injectables..gg for review tml and nxt wk shld be doing the iui...
This is a discussion on We are trying to concieve-ing! within the Trying To Conceive forum, part of the You and Your Family category; To recap what i did for this cycle: *last dose of clomid *traditional chinese medicine med for me and hubby *leg raise ...
To recap what i did for this cycle:
*last dose of clomid
*traditional chinese medicine med for me and hubby
*leg raise overnight after bd
*ovary massage 3 times (before and during ovulation)
*foot Reflexology (during ovulation)
*holiday after ovulation (relax)
*bd on cd 10, 13 and 19. (Least hardworking month)
*one brazil nut a day after ovulation
Hope these helps.
Ultimately i would say this cycle was my least stressful month in my one year of trying to concieve after the last chemical pregnancy.
Cos i didnt pin much hope cos its the last cycle of clomid and i didn't work hard (bd).
Hub and i have decided to skip so iui and go direct to ivf mid next year.
Last edited by soursop2014; 11-07-2014 at 02:56 PM.
Woohoo..good good...maybe i shld try take brazil nut daily after ovulation..btw where to get these nuts? Anw me now in my 2nd so-iui cycle...on puregon injectables..gg for review tml and nxt wk shld be doing the iui...
I bOught mine from ntuc finest under the organic food section
thanks soursop2014...will gg get it... ^^
Hello everyone, I just got back from my holiday. Honestly, I feel like giving up already.
Mint miner, same here, sometimes I just console myself, bite the bullet n persevere, dont't give up, dont't stress so much, what will come will come. Today is my cd 47, temp spike to 36.6 today. just went shopping to vent my frustration during GSS!
Cross finger n pray hard :x let's pray really hard for our future... jiayou gals!!!
Hugs mintminer!
dont give up hope...just maintain 平常心
we've all been through this trying to concieve journey for so long.
I always tell myself, probably the timing is not right.
so I just leave to fate.
i always heard success stories from people are not trying or not keen to have babies. Then people like us tried all ways and means but still to no avail. So I believe that if it's meant to be , it's meant to be.
Just stay positive and do your best and leave the rest to fate!
Im sure all of us here will graduate from here!
Last edited by soursop2014; 13-07-2014 at 08:26 AM.
Hi all, long time no come in here.... congrats to soursop2014!
just a small update from me, went to c my gynae for review after my one month menses. decide to give clomid with insulin a try. Manage to convince hubby to go for SA test if this round still dont work. Well i dont want to stress him as he just start driving taxi this wk... Take it slow. I had stopped traditional chinese medicine already...
Hi, I am new here,
Trigger shot on 01.07, iui was on 02.07, I scare to do a home pregnancy test now.
dont't worry, just do it! My turn to test it soon too hehe
Best of luck to Lol and eggscatcher83... ^^
Lol good luck to you!
When are you suppose to do pregnancy test?
Hi soursop, I wanted to test but run out of test kit, haha, tomolo morn is my 2nd consultation so all results shld b out and see how the doc will explain, I not sure if he will ask me to test on my own or will there be other upcoming blood test or scans available?
Aiya i still have a few cheapo hpt kits and ovulation test kits!
But because pantang, i will only be giving away after everything is stable hehe.
Maybe you can ask the dr or nurse that you want to do a test
Nevertheless you can still do it on your own first before the checkup
how are you feeling, soursop??
Hmm feeling crappy and like a toad cos keep burping/belching. Very unglam.
Feels tired and keeps feeling hungry every two hours
Oh ya mxlo, were you the one that's tried the ovary massage (home service)?
If you remember, i tried ovary massage for My last cycle
Not sure if it helps but i did three times!
Last edited by soursop2014; 15-07-2014 at 10:28 AM.
Hi gals, had my consultation in the morning and everything is fine for both me and hubby's results, she just told me that my ovary looks like a love shape and different from the normal round shape. Lol...so my hubby poked fun of me then I told him I m a lovely person, hehe...doc asked me to consider SO-IUI after 3mths of eating the clomid prescribed.
Then have you done the pregnancy test??
I also completed three cycles of clomid.
Last cycle hit jackpot, so did my best friend!
LOL Soursop its like that. After that should be ok bah.
I did not try the massage yet. Maybe after this cycle bah. I change my sinseh to the famous Dr Tan at clementi. Hopefully he can help us not just me but my hubby too!
Jackpot soon! Jia you!
where are the rest?? so quiet now......
Its midweek people!!
yeah hello MXLO, wow nearly fell aslp in office, very tired n busy tis 2 days, finally bought HPT test kit online, shld reach my mailbox by tonight then I will test it tomolo,
dont't dare to test so early, so sick of disappointmt every month. hope gt Jackpot too... Cheers
Ya mine was just pure clomid 50mg every morning cd3-7
Good evening!
Congrats soursop.
I'm pretty worn out from work demands. But also looking forward to things coming ahead.
Good luck everyone!


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California Court of Appeals, Second District, First Division
February 26, 2015
EDIXON FRANCO, Plaintiff and Respondent,v.ARAKELIAN ENTERPRISES, INC., Defendant and Appellant.
[As modified Mar. 11, 2015]
APPEAL from an order of the Superior Court of Los Angeles County No. BC369201, John A. Kronstadt, Judge.
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[Copyrighted Material Omitted]
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Page 950
Hill, Farrer & Burrill, Kyle D. Brown, James A. Bowles
and E. Sean McLoughlin; Gibson, Dunn & Crutcher, Julian W. Poon and Jesse A. Cripps for Defendant and Appellant.
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Rastegar & Matern, Matthew J. Matern, Farzad Rastegar and Thomas S. Campbell for Plaintiff and Respondent.
Our Supreme Court has transferred this matter to us with directions to vacate our decision filed November 26, 2012 and to reconsider the cause in light of Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348 [173 Cal.Rptr.3d 289, 327 P.3d 129] (Iskanian).[1]
Following the rule announced in Iskanian, we reverse and remand with directions the trial court's order denying the petition of defendant Arakelian Enterprises, Inc. (Arakelian) to compel arbitration of plaintiffs claims for individual and class action relief, and for representative relief under the Labor Code Private Attorneys General Act of 2004 (Lab. Code, §§ 2698-2699.5) (PAGA).[2]
This matter comes before us for the third time. The facts are taken from our opinion and the record in Franco v. Athens Disposal Co., Inc. (2009) 171 Cal.App.4th 1277 [90 Cal.Rptr.3d 539] (Franco I), and the exhibits filed in connection with the second petition to compel arbitration following the Franco I decision, with reference to our (now-vacated) November 26, 2012 opinion in
Franco v. Athens Disposal Co., Inc.[*] (Cal.App.) (Franco II).
The complaint
On April 9, 2007, plaintiff Edixon Franco filed a lawsuit individually and on behalf of other similarly situated current and former employees, alleging his status as an employee of "Athens Disposal Company, Inc., dba Athens Services" (Athens Services). In the first through fourth and sixth causes of action, Franco brought claims as an individual and putative class representative, seeking relief against Athens Services based on his employment as a
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nonexempt hourly employee, alleging that Athens Services engaged in systematic and illegal Labor Code and wage-order violations.[3] In the fifth cause of action, Franco sued in a representative capacity under the PAGA, seeking civil penalties for Athens Services' violations of its Labor Code obligations to Franco and other current and former employees. (Franco I, supra, 171 Cal.App.4th at p. 1283.) The sixth cause of action alleged a violation of the California unfair competition law. (Bus. & Prof. Code, § 17200 et seq.)
First petition to compel arbitration
On June 22, 2007, Athens Services petitioned to compel arbitration and to dismiss or stay the civil action. The petition stated that Athens Services was in the business of trash removal, hauling, disposal, and recycling, and that it was engaged in interstate commerce within the meaning of the Federal Arbitration Act (9 U.S.C. §§ 1-16).
According to Franco, he was employed by Athens Services from May 20, 2005, to May 12, 2006. (Franco I, supra, 171 Cal.App.4th at p. 1285.) In August 2005, he had signed an "Employee Agreement to Arbitrate" as a condition of his employment, which acknowledged his receipt and review of the Athens Services's mutual arbitration policy (MAP). The MAP provided (so far as relevant here) that it "will govern all existing or future disputes between you and the Company that are related in any way to your employment;" that it "covers all disputes relating to or arising out of an employee's employment with the Company or the termination of that employment;" that the mutual obligation to arbitrate claims "means that both you and the Company are bound to use the MAP as the only means of resolving any employment-related disputes, " and that "both you and the Company forego and waive any right to join or consolidate claims in arbitration with others or to make claims in arbitration as a representative or as a member of a class or in a private attorney general capacity...." But it also provided that "No remedies that otherwise would be available to you individually or to the Company in a court of law, however, will be forfeited by virtue of this
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agreement to use and be bound by the MAP, " and that the parties retain the right to use small claims court. (Id. at p. 1284.)[4]
Athens Services's petition to compel arbitration alleged that arbitration was required under the MAP agreement. (Franco I, supra, 171 Cal.App.4th at pp. 1283-1284.) Its petition was supported by declarations, including that of the president of "Athens Disposal Company, doing business as Athens Services, " alleging Franco's employment by Athens Services as a waste truck driver, and his (and all other Athens Services waste hauling drivers') exemption from California's overtime wage laws and regulations. (Id. at p. 1285.)
In opposition to the petition, Franco submitted expert and other declarations to show that his wage and hour claims can be heard only as a class action, whether in court or in arbitration, because of the small size of each individual claim and the unavailability of legal representation for the prosecution of such claims. If arbitration were required, the experts contended, the result would be an inability to deter Arakelian and other such employers from continuing their Labor Code violations. (Franco I, supra, 171 Cal.App.4th at pp. 1298-1299.)
The trial court, Elizabeth A. Grimes, Judge, granted the petition to compel arbitration, reasoning that Franco's claims for overtime compensation lacked merit, and that classwide arbitration would not be significantly more effective than individual arbitrations. The court concluded that the Athens Services arbitration program "would not disadvantage any employee who pursued claims through individual arbitration." (Franco I, supra, 171 Cal.App.4th at p. 1287.) Franco appealed.[5]
The Franco I Appeal
This court concluded in Franco I that the MAP's provisions requiring arbitration and waiving class actions were unenforceable. (Franco I, supra, 171 Cal.App.4th at pp. 1282, 1303.) Athens Services's petition for review by the California Supreme Court was denied (Franco v. Athens Disposal Co., Inc.
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(June 17, 2009, S172223); its petition to the United States Supreme Court for writ of certiorari was denied on January 11, 2010. (Athens Disposal Co., Inc. v. Franco (2010) 558 U.S. 1136 [175 L.Ed.2d 926, 130 S.Ct. 1050].) The case returned to the trial court.
Trial court proceedings following Franco I
At a January 22, 2010 status conference, counsel for Athens Services informed the court that Franco's suit had named the wrong defendant: that Athens Disposal Company, Inc., doing business as Athens Services, was not in fact Franco's employer; that Franco's actual employer was Arakelian, doing business as Athens Services. Subsequent discovery responses confirmed that Athens Disposal Company, Inc. had never employed Franco (or apparently anyone else in Cal.) at any relevant time. On March 25, 2010, Franco amended the complaint to add Arakelian, doing business as Athens Services, as a Doe defendant.
On May 17, 2010, Arakelian filed a second petition to compel arbitration, again relying on the August 2005 MAP. The second petition argued that the authorities on which the Franco I decision had relied in refusing to enforce the MAP had been overruled by the United States Supreme Court in Stolt-Nielsen S.A. v. AnimalFeeds International Corp. (2010) 559 U.S. 662 [176 L.Ed.2d 605, 130 S.Ct. 1758] (Stolt-Nielsen), rendering the MAP enforceable. Arakelian argued in the alternative that even if the MAP was not enforceable (i.e., even if Stolt-Nielsen did not overrule Franco I), the trial court should compel arbitration based on the pre-MAP arbitration provision in the Athens Services Employee Guide, which Franco acknowledged receiving when he was hired in May 2005.
Franco opposed the second arbitration petition on the same grounds as the original petition, arguing that our Franco I decision is decisive under the law of the case doctrine, even though Arakelian was not then a named defendant, because Arakelian is estopped to deny it was in privity with the named defendant, and because Stolt-Nielsen did not constitute a change in the law that would preclude application of the law of the case doctrine.
On September 13, 2010, the trial court (John Kronstadt, Judge) heard argument and indicated its denial of the petition for arbitration. On April 11, 2011, the court filed a comprehensive order denying the petition, identifying two grounds for its ruling: (1) the law of the case doctrine requires enforcement of the Franco I decision denying arbitration; and (2) Arakelian waived its right to compel arbitration by failing to identify itself as Franco's true employer until after its lawyers had prosecuted the original petition to compel arbitration and exhausted the appellate process.
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The Franco II appeal
Arakelian appealed, this time from the April 11, 2011 order. The central question in that appeal was whether the decision of the California Supreme Court in Gentry v. Superior Court (2007) 42 Cal.4th 443 [64 Cal.Rptr.3d 773, 165 P.3d 556] (Gentry), on which our decision in Franco I had relied, was abrogated by the decisions of the United States Supreme Court in Stolt-Nielsen and AT&T Mobility LLC v. Concepcion (2011) 563 U.S. __ [179 L.Ed.2d 742, 131 S.Ct. 1740] (Concepcion). This court's decision in Franco II affirmed the trial court's denial of the defendant's second petition to compel arbitration, holding that the Stolt-Nielsen and Concepcion decisions did not overrule the Gentry decision, and that the MAP's agreement to forego class actions and private attorney general actions is unenforceable. (Franco II.) (The Franco II decision did not address the effect, if any, of Arakelian's delay in identifying itself as Franco's true employer.)
However, our Supreme Court granted review of the Franco II decision, deferring action until disposition of a related issue in Iskanian, supra, 59 Cal.4th 348. After deciding Iskanian, it transferred the cause back to this court with directions to vacate and reconsider our Franco II decision in light of Iskanian.
The central issue in this appeal concerns the impact of the Iskanian decision on the trial court's determination that the MAP's agreement to forego representative and class actions is unenforceable: whether the trial court erred in refusing to compel arbitration of Franco's claims against Arakelian for individual and class action relief, and his claim for relief under the PAGA. Because the material facts are not in dispute and the appeal presents an issue of law, our standard of review is de novo. (W.M. Barr & Co., Inc. v. South Coast Air Quality Management Dist. (2012) 207 Cal.App.4th 406, 423 [143 Cal.Rptr.3d 403]; Nickell v. Matlock (2012) 206 Cal.App.4th 934, 940 [142 Cal.Rptr.3d 362].)
The arbitration provision in this case-the MAP-was imposed on Franco and other employee-members of his putative class as a condition of their employment, and provided that "both the Company and [Franco] agree to forego any right... to bring claims on a representative or class basis...."[6] In Gentry, our Supreme Court had held that arbitration agreements obtained as a condition of employment, containing class action waivers that limit
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employees' ability to vindicate statutory protections, are unenforceable as a matter of public policy. Our decision in Franco I rested in part on that rule, holding that because employer-imposed agreements are ineffective to waive Labor Code employee protections, the MAP agreement to arbitrate any such employment disputes is unenforceable. (Franco I, supra, 171 Cal.App.4th at pp. 1290-1294.) In Franco II, we held that the rule of Gentry on which our Franco I decision had relied remained good law, and was not overruled by subsequent decisions of the United States Supreme Court, including the decision in Concepcion.
But in Iskanian, our Supreme Court held that its Gentry decision has been abrogated by the United States Supreme Court's decision in Concepcion, which holds that the Federal Arbitration Act, title 9 United States Code section 1 et seq. (FAA) preempts state-law statutory protections such as those shielded from class action waivers under the Gentry decision. (Iskanian, supra, 59 Cal.4th at pp. 364-365.) Under Concepcion and Iskanian, the public policy behind the vindication of employees' statutory protections must yield to the policy protecting agreements to arbitrate disputes involving interstate commerce. Class action waivers-even waivers that are obtained as a condition of employment and that limit employees' ability to vindicate statutory employee protections-are not categorically invalid or unenforceable.
We are bound by the ruling of our Supreme Court in Iskanian. "Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction. It is not their function to attempt to overrule decisions of a higher court." (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [20 Cal.Rptr. 321, 369 P.2d 937].)
Under the FAA, the agreement by Franco and his employer to submit their employment disputes to arbitration, and to forego the right to pursue claims on behalf of a class of similarly situated employees, therefore is not rendered unenforceable on the grounds we relied upon in Franco I and reaffirmed in Franco II. The parties' MAP agreement to arbitrate their employment disputes is enforceable unless it is found to be unconscionable on grounds that exists "for the revocation of any contract, " within the meaning of the FAA's savings clause. (9 U.S.C. § 2; see Concepcion, supra, 563 U.S. at p. __ [131 S.Ct. at p. 1747]; Iskanian, supra, 59 Cal.4th at pp. 364, 371.)[7] Under this law, as enunciated in Iskanian and discussed
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below, the MAP's waivers of Franco's right to pursue non-PAGA claims as a class representative are enforceable, precluding the prosecution of those claims in any forum; however Franco's purported waiver of his right to prosecute the statutory claims afforded by the PAGA is unenforceable, and his PAGA claims are not subject to arbitration.
I. The Order Denying Arbitration Of Franco's Claims Must Be Reversed.
A. The Doctrine Of Law Of The Case Does Not Require Adherence To The Franco I Decision.
The Franco I decision held that the MAP's provisions for arbitration and waiving class actions rendered the agreement unenforceable. The doctrine of law of the case gives finality to appellate decisions, precluding courts from revisiting issues that has been determined in earlier appellate proceedings between the same parties. (Morohoshi v. Pacific Home (2004) 34 Cal.4th 482, 491 [20 Cal.Rptr.3d 890, 100 P.3d 433].) " ' "Where a decision upon appeal has been rendered by a District Court of Appeal and the case is returned upon a reversal, and a second appeal comes to this court directly or intermediately, for reasons of policy and convenience, this court generally will not inquire into the merits of said first decision, but will regard it as the law of the case."'" (Clemente v. State of California (1985) 40 Cal.3d 202, 211-212 [219 Cal.Rptr. 445, 707 P.2d 818].)
The law of the case doctrine cannot be applied in this case to preclude redetermination of the question whether the MAP's waivers are unenforceable, however. That is because the doctrine is not applied where it would lead to unjust results-notably in this case, where there has been an intervening change in the law on which the earlier decision is based. (Davies v. Krasna (1975) 14 Cal.3d 502, 507 [121 Cal.Rptr. 705, 535 P.2d 1161]; Anton v. San Antonio Community Hospital (1982) 132 Cal.App.3d 638, 647 [183 Cal.Rptr. 423].)
Here, the law concerning the enforceability of the parties' arbitration agreement and class action waivers has changed significantly since the Franco I decision. The Iskanian decision has held that the decision in Concepcion precludes an order denying arbitration on the grounds on which we relied in Franco I. The law of the case doctrine therefore cannot be applied to avoid redetermination of the questions in that case-whether the MAP's arbitration agreement and class action waivers are unenforceable.
B. Arakelian's Delay In Identifying Itself As Franco's Employer Did Not Waive Its Right To Compel Arbitration.
On April 11, 2011, the court denied Arakelian's petition for arbitration of Franco's class action and representative action claims, basing its ruling in
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part on Arakelian's long delay in identifying itself as Franco's true employer, until after its attorneys had prosecuted the original petition to compel arbitration and exhausted the appellate process. We conclude that the grounds stated by the trial court do not alone justify a determination that Arakelian waived its right to enforce the parties' MAP agreement.
So far as is apparent from the record before us, the trial court's concern was based on Arakelian's delay until January 2010, to disclose that Franco was not employed by the named defendant-"Athens Disposal Company, Inc., dba Athens Services, a California corporation"-but by Arakelian, "doing business as Athens Services." Both entities were represented by the same lawyers.[8] Thus, the entire time the lawyers were representing "Athens Disposal Company, Inc., dba Athens Services" in this case, the firm knew that the company doing business as Athens Services was Arakelian, not Athens Disposal Company, Inc. Yet it did not disclose that Arakelian was Franco's employer until after Athens Services had represented otherwise in discovery, and had exhausted all its appellate proceedings unsuccessfully seeking to compel arbitration.
Trial courts unquestionably have authority to impose appropriate sanctions or other remedial measures upon determination that the litigation conduct of a party or its attorneys falls short of that required by the law and applicable rules of ethics. (Code Civ. Proc., §§ 128.5, 1211, 1212; see Bauguess v. Paine (1978) 22 Cal.3d 626, 637 [150 Cal.Rptr. 461, 586 P.2d 942].) But the rules for determining whether a party's conduct constitutes a waiver of its right to enforce an agreement to arbitrate disputes are not the same as those governing the court's right to remedy and punish contempts. Any doubts about whether a party's conduct has waived its right to compel arbitration must be resolved in favor of arbitration. (St. Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187, 1195 [8 Cal.Rptr.3d 517, 82 P.3d 727]; Christensen v. Dewor Developments (1983) 33 Cal.3d 778, 782 [191 Cal.Rptr. 8, 661 P.2d 1088].) Although the determination of waiver ordinarily is a question of fact that is binding on the appellate court if it is supported by sufficient evidence, the issue is one of law requiring de novo determination when the facts are undisputed and only one inference may
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reasonably be drawn. (St. Agnes Medical Center v. PacifiCare of California, supra, 31 Cal.4th at p. 1196.)
Past cases have found a waiver of the right to compel arbitration in situations ranging from those in which after a dispute has arisen the party seeking arbitration has taken steps that are inconsistent with an intention to invoke arbitration, has unreasonably delayed undertaking the arbitration procedure, or has acted in bad faith or willful misconduct with respect to its arbitration rights-for example, by misleading and prejudicing the party opposing arbitration. (St. Agnes Medical Center v. PacifiCare of California, supra, 31 Cal.4th at pp. 1196, 1203; Sobremonte v. Superior Court (1998) 61 Cal.App.4th 980, 992 [72 Cal.Rptr.2d 43].) Prejudice typically is found only where conduct of the petitioning party has substantially impaired the other party's ability to obtain the benefits and efficiencies of arbitration, for example, when the party has unreasonably delayed seeking arbitration (e.g., Sobremonte v. Superior Court, supra, 61 Cal.App.4th at pp. 995-996); where the party has exploited trial court discovery procedures that would be unavailable to it in arbitration (e.g., Berman v. Health Net (2000) 80 Cal.App.4th 1359, 1366 [96 Cal.Rptr.2d 295]); or where delay by the petitioning party has resulted in lost evidence (e.g., Christensen v. Dewor Developments, supra, 33 Cal.3d at pp. 783-784 [waiver found where party filed suit without arbitration demand and pursued litigation for admitted purpose of obtaining verified pleadings that would reveal opposing party's litigation theories]).
In the absence of evidence that would further explicate the impact and prejudice (if any) resulting from inaccurate or misleading representations concerning Franco's employment, and Arakelian's failure to earlier identify itself as Franco's employer, the record presently discloses no conduct that could justify the trial court in determining that Arakelian has waived its arbitration rights under the MAP provision. The record shows no evidence of trial court discovery or motion procedures that exceed or are inconsistent with those to which the parties would be entitled in arbitration, or that resulted in prejudice to either party. If Arakelian's belated identification as the true defendant prejudiced Franco's ability to obtain the legitimate benefits of arbitration, that showing has yet to be made. The finding that Arakelian has waived its right to compel arbitration under the MAP procedures is not supported by the record in this appeal.
C. The Agreement For Arbitration Of Franco's Class Action Claims Does Not Render The Agreement Categorically Unenforceable.
Section 2 of 9 Unites States Code, part of the FAA-the act's "primary substantive provision" (Concepcion, supra, 563 U.S. at p.
__ [131 S.Ct. at p. 1745])―states
Page 960
that "'[a] written provision in any... contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.' 9 U.S.C. § 2." (Concepcion, supra, 563 U.S. at p. __ [131 S.Ct. at p. 1745]). That provision is a "congressional declaration of a liberal federal policy favoring arbitration agreements, notwithstanding any state substantive or procedural policies." (Moses H. Cone Hospital v. Mercury Constr. Corp.
(1983) 460 U.S. 1, 24 [74 L.Ed.2d 765, 103 S.Ct. 927].) Its effect "is to create a body of federal substantive law of arbitrability, applicable to any arbitration agreement within the coverage of the Act.'" (Ibid.) The savings clause, the provision that an arbitration agreement may be found unenforceable "upon such grounds as exist at law or in equity for the revocation of any contract, " refers to contract defenses such as fraud, duress, or unconscionability. (Concepcion, supra. 563 U.S. at p. __ [131 S.Ct. at p. 1746].)
In Gentry, supra, the California Supreme Court held that a waiver of the right to prosecute class actions (whether in court or in arbitration) is invalid and unenforceable under California law, if it is determined that an individual action would not approximate the benefits afforded by a class proceeding. But in Concepcion, the United States Supreme Court held otherwise with respect to agreements for the arbitration of employment disputes. It held that class proceedings interfere with fundamental beneficial attributes of arbitration, and therefore are inconsistent with the FAA. They are preempted by the FAA, at least in the absence of an agreement to the contrary. (Concepcion, supra, 563 U.S. at p. __ [131 S.Ct. at p. 1746]; Iskanian, supra, 59 Cal.4th at pp. 363-365 [FAA preempts state law protections such as those shielded from class action waivers by the Gentry decision].)
When the parties have validly elected to resolve employment disputes in arbitration, the ineffectiveness of an individual proceeding for the resolution of their disputes does not render a class action waiver invalid or unenforceable, nor does it render the arbitration agreement itself invalid or unenforceable. The FAA precludes any order requiring class action arbitration of wage and hour claims unless the parties have affirmatively agreed to it. (Stolt-Nielsen, supra, 559 U.S. 662 [176 L.Ed.2d 605, 130 S.Ct. 1758].) "[A] party may not be compelled under the FAA to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so." (Stolt-Nielsen, supra, 559 U.S. at p. 664 [130 S.Ct. at p. 1775], original italics.) Here, far from affirmatively agreeing to submit disputes concerning employment wage and hour claims to class action arbitration, the parties have agreed to forego class action treatment of any such claims.
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We are compelled by these rulings to reverse the trial court's order denying the petition for arbitration on the ground that employer-imposed class action waivers are unenforceable because they limit employees' ability to vindicate statutory employee protections-the grounds set forth in Franco I and Franco II. (Iskanian, supra, 59 Cal.4th at pp. 364-365.) If the MAP arbitration provisions are otherwise enforceable, Franco's claims against Arakelian can be prosecuted only in arbitration proceedings of his individual claims, and the agreement's class action waiver provisions preclude enforcement of his class action claims in any forum.
II. The MAP's Waiver Of Franco's Right To Prosecute Representative Claims Under The PAGA Is Unenforceable.
The PAGA authorizes an employee to bring an action against his or her employer for Labor Code violations committed against the employee and fellow employees, to recover civil penalties provided by the PAGA statute. The action is brought on behalf of the state, which receives most of the resulting penalty proceeds. (§ 2698 et seq.; Iskanian, supra, 59 Cal.4th at p. 360.) The MAP agreement in this case, like the arbitration agreement in Iskanian, precludes an employee's assertion of representative actions, which the parties apparently understood to encompass actions brought under the PAGA. (See Iskanian, supra, 59 Cal.4th at pp. 361, 378.)
As we have concluded in the preceding section, the parties' MAP agreement is not categorically unenforceable, either by virtue of its waiver of class actions or for the reasons relied upon by the trial court in denying the second petition to compel arbitration. Franco's claims for individual relief are subject to arbitration. However, as we explain below, his representative claims under the PAGA are not.
A. Franco's Right To Bring A Representative Action Under The PAGA Is Unwaivable Under California Law.
After determining that class-action waivers are enforceable, the court in Iskanian turned to the question whether the MAP agreement's waiver of representative actions precludes the employee from prosecuting a PAGA claim-i.e., whether waivers of the right to prosecute PAGA claims are enforceable under state law, and if they are not, whether the FAA preempts that state-law prohibition of enforcement of such waivers. (Iskanian, supra, 59 Cal.4th at p. 378.)
Iskanian answered the first of these questions by holding that as a matter of state law, an employment agreement that compels a waiver of the employee's statutory right to bring representative claims under the PAGA is
Page 962
contrary to public policy and unenforceable. (Iskanian, supra, 59 Cal.4th at pp. 382-384.) A representative action under the PAGA is not a class action, but rather is a type of qui tam action, in which the employee-plaintiff acts as private attorney general-an agent of the state-while the governmental entity on whose behalf he or she sues is the real party in interest. (Iskanian, at p. 382.) In enacting the PAGA, the Legislature declared that it is necessary, and in the public interest, to allow aggrieved employees to act as private attorneys general for the purpose of seeking and recovering civil penalties for Labor Code violations, while labor law enforcement agencies retain the right to control the enforcement efforts and would receive the bulk of any recoveries. (Arias v. Superior Court (2009) 46 Cal.4th 969, 980-981 [95 Cal.Rptr.3d 588. 209 P.3d 923] (Arias); Iskanian, supra, 59 Cal.4th at p. 379.) Under the PAGA, an employee is entitled to bring an action "personally and on behalf of other current or former employees to recover civil penalties for Labor Code violations"-but only if the responsible state agency has declined the opportunity to do so. (Arias, supra, 46 Cal.4th at p. 980; see §§ 2699, subd. (a), 2699.3, subd. (a).) Any penalties recovered are divided, 75 percent going to the state agency and 25 percent to aggrieved employees. (Arias, supra, 46 Cal.4th at p. 980; Iskanian, supra, 59 Cal.4th at p. 380.) An action under the PAGA "'is fundamentally a law enforcement action designed to protect the public and not to benefit private parties.'" (Iskanian, supra, 59 Cal.4th at p. 381; Arias, supra, 46 Cal.4th at p. 986.) The aggrieved employee sues under the PAGA "as the proxy or agent of the state's labor law enforcement agencies." (Arias, supra, at p. 986; Iskanian, supra, at p. 380.)
Because the rights asserted in an action under the PAGA are those of the state rather than of the plaintiff-employee, the right to prosecute such an action cannot be waived by private agreement. Such an agreement would violate two important provisions of law, which are themselves derived from public policy. Civil Code section 1668 forbids enforcement of any contract that has as its direct or indirect object the exemption of parties from their violations of law. (Iskanian, supra, 59 Cal.4th at p. 382; In re Marriage of Fell (1997) 55 Cal.App.4th 1058, 1065 [64 Cal.Rptr.2d 522].) And Civil Code section 3513 provides that one may waive the advantages of a law that is intended to benefit just him or her, but "a law established for a public reason cannot be contravened by a private agreement." (See Iskanian, supra, 59 Cal.4th at p. 383; Armendariz v. Foundation Health Psychcare Servs., Inc. (2000) 24 Cal.4th 83, 100 [99 Cal.Rptr.2d 745, 6 P.3d 669].) A private employer-employee agreement that precludes the state's agents-aggrieved employees acting as private attorneys general-from enforcing the employer's Labor Code obligations and recovering civil penalties on behalf of the state constitutes exactly what Civil Code section 1668 prohibits: a contract that has as its object the exemption of the employer from its violations of the
Page 963
law. And the parties cannot by private agreement waive the benefits of the PAGA, because its primary benefits are public, not private. It is "a law established for a public reason"-the state's interests in enabling enforcement of its labor law standards and in receiving the proceeds of the civil penalties that are imposed in order to deter employer violations. (Civ. Code, § 3513; see Iskanian, supra, at p. 383.) For these reasons it is contrary to policy and the law of this state for an employment agreement to eliminate the ability of aggrieved employees to act on the state's behalf in enforcing its labor laws, as provided by the PAGA. Under the law of this state, an employee's predispute waiver of the right to bring a PAGA action is unenforceable. (Iskanian, supra, 59 Cal.4th at p. 383.)
The rights afforded Franco by the PAGA are intended primarily to advance the public's interest in deterring employers from violating labor laws established for public benefit. As such, public policy and the laws of this state preclude enforcement of the private agreement purporting to prevent Franco from enforcing the state's interests under the PAGA.[9]
B. The State-Law Rule Against Employee Waivers Of PAGA Rights Does Not Frustrate The FAA's Objectives And Is Not Preempted By The FAA.
The state-law rule against predispute employee waivers of the right to prosecute claims under the PAGA cannot be enforced if the rule "stand[s] as an obstacle to the accomplishment of the FAA's objectives." (Iskanian, supra, 59 Cal.4th at p. 384.) Recognizing that immutable principle of federal law, as clarified and restated by the Concepcion case, our Supreme Court examined in Iskanian whether the FAA's objectives of ensuring parties' ability to provide for an efficient forum for the economical and speedy resolution of their private disputes is frustrated by the state's policy against enforcement of predispute employee waivers of the rights afforded by the PAGA. (59 Cal.4th at pp. 384-385.)
On that question-whether the law of this state is preempted by the FAA-the court held in Iskanian that the state-law rule prohibiting enforcement of agreements waiving the right to bring representative claims under the PAGA does not frustrate the FAA's objective of ensuring an efficient forum for the resolution of private employer-employee disputes, and therefore is not preempted by the FAA. That is because a PAGA action involves a dispute
Page 964
between the employer and the state agency on whose behalf the representative plaintiff acts, rather than a private employer-employee dispute. (Iskanian, supra, 59 Cal.4th at p. 384.) Based on its in-depth examination of the FAA's objectives as revealed by the statute's legislative history, the court concluded that in an action for civil penalties under the PAGA, "'the employee plaintiff represents the same legal right and interest as state labor law enforcement agencies, '" and "'an aggrieved employee's action under the [PAGA] functions as a substitute for an action brought by the government itself.'" (Iskanian, at p. 387, quoting Arias, supra, 46 Cal.4th at p. 986.) The bulk of any recovery under the PAGA goes to the state, not to the plaintiff-employee; and the judgment in a PAGA action binds the state just as it binds the employer and the plaintiff-employee. (Arias, supra, 46 Cal.4th at p. 986; Iskanian, supra, 59 Cal.4th at p. 387.) "'[E]very PAGA action, whether seeking penalties for Labor Code violations as to only one aggrieved employee-the plaintiff bringing the action-or as to other employees as well, is a representative action on behalf of the state.'" (Iskanian, supra, 59 Cal.4th at pp. 387; see id., at p. 394.) "Simply put, a PAGA claim lies outside the FAA's coverage because it is not a dispute between an employer and an employee arising out of their contractual relationship. It is a dispute between an employer and the state, which alleges directly or through its agents-either the [state Labor and Workforce Development] Agency or aggrieved employees-that the employer has violated the Labor Code." (Id. at pp. 386-387.)[10]
Based on this analysis, the court in Iskanian concluded that California's public policy prohibiting waiver of PAGA claims does not interfere with the FAA's goal of promoting arbitration as a forum for private dispute resolution. "[T]he FAA aims to promote arbitration of claims belonging to the private parties to an arbitration agreement. It does not aim to promote arbitration of claims belonging to a governmental agency, and that is no less true when such a claim is brought by a statutorily designated proxy for the agency as when the claim is brought by the agency itself." (Iskanian, supra, 59 Cal.4th at p. 388.) We therefore hold, as the Iskanian decision requires, that the FAA does not preempt California's state-law rule precluding predispute waivers of enforcement rights under the PAGA.[11]
Page 965
C. The Unenforceable Agreement Barring Franco's PAGA Claims Does Not Render The MAP Agreement Categorically Unenforceable.
Franco asks that we find the MAP agreement to be unconscionable, and therefore unenforceable, based on the intent it attributes to Arakelian to preclude its employees from obtaining the benefits of the protections and remedies provided by California's PAGA law, in violation of public policy. As discussed above, the court held in Iskanian that "it is against public policy for an employment agreement to deprive employees of [the option to enforce the PAGA] altogether, before any dispute arises." (Iskanian, supra, 59 Cal.4th at p. 387.) We decline to accede to this request.
We need not contemplate whether such a ruling might or might not be appropriate when a party seeking to enforce a predispute arbitration agreement is found to have drafted and obtained the agreement with an intention to thwart public policy. But such a remedy is not appropriate here. Arakelian drafted and obtained the MAP agreement's representative-action waiver in 2005. That was almost a decade before the Iskanian decision held that enforcement of such waivers with respect to actions under the PAGA would violate public policy, while their enforcement with respect to class actions would not. From this we are unable to find that the central purpose of the MAP agreement is tainted with illegality, we are unable to conclude that Arakelian predicted the final outcome of the yet-to-be decided Iskanian decision, and we are unable to infer from these circumstances an intention on Arakelian's part to thereby thwart public policy. By rendering unenforceable the MAP agreement's bar to Franco's enforcement of the protections afforded by the PAGA, Franco is prevented from gaining undeserved relief from his agreement to arbitrate his individual claims, while Arakelian is prevented from the undeserved detriment of having its entire agreement voided due to its inclusion of a provision respecting only certain claims; the parties' contractual relationship is preserved, without condoning or accepting an illegal scheme. (See Little v. Auto Stiegler, Inc. (2003) 29 Cal.4th 1064, 1074-1075 [130 Cal.Rptr.2d 892, 63 P.3d 979]; Armendariz v. Foundation Health Psychcare Servs., Inc. (2000) 24 Cal.4th at p. 124.)
The rulings in Concepcion and Iskanian require that we reverse and remand to the trial court the orders denying Arakelian's petition for arbitration of Franco's claims, with directions to grant the petition for arbitration of
Page 966
Franco's individual claims against Arakelian, while enforcing the parties' contractual agreement to forego any right "to make claims in arbitration as a representative or as a member of a class or in a private attorney general capacity, " except that the MAP cannot be enforced to preclude Franco from prosecuting claims against Arakelian under the PAGA in a non-arbitration forum. Because the issues subject to litigation under the PAGA might overlap those that are subject to arbitration of Franco's individual claims, the trial court must order an appropriate stay of trial court proceedings. (Code Civ. Proc., § 1281.4.)[12] The stay's purpose is to preserve the status quo until the arbitration is resolved, preventing any continuing trial court proceedings from disrupting and rendering ineffective the arbitrator's jurisdiction to decide the issues that are subject to arbitration. (Federal Ins. Co. v. Superior Court (1998) 60 Cal.App.4th 1370, 1374 [71 Cal.Rptr.2d 164].)
The order denying Arakelian's petition to compel arbitration is reversed. The matter is remanded for further proceedings consistent with this opinion. The parties are to bear their own costs on appeal.
Rothschild, P. J., and Johnson, J., concurred.
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Tim and Willy Let Go From KMLE; Danny Zelisko Presents Dropped By KDKB
Tim and Willy
See also: Dave Pratt's Out, MasterChef Contestant Monti Carlo Is In at 103.9, Plus More Radio News It's been a strange week in Valley radio: On Sunday, July 22, KDKB-FM (93.3) personality and local concert promoter Danny Zelisko announced that his program, The Danny Zelisko Presents radio program (also known as the Regular Guy Radio Program) was being dropped by the station, and on Wednesday, July 26, country morning duo Tim Hattrick and Willy D. Loon -- better known as Tim and Willy -- gave word that their show has been dropped by KMLE-FM (107.9)
The country duo posted the following message on their official Facebook page:
Today was our last show on KMLE Country 108. It's been a great ride! Be sure to "Like"Tim and Willy on Facebook and follow us @timandwillyshow to find out where we'll be soon!
In an interview with AZ Central, Hattrick indicates that the management at KMLE will be "emphasizing music over personalities."
It could be a mere coincidence that former KMLE morning show host Dave Pratt (who parted ways with My 103.9 in June) posted a cryptic message ("QUESTION OF THE DAY: What radio station just offered us their morning show? LOL.") on his Facebook page today, or it could indicate that the station is looking toward trying out Pratt again. Tim and Willy took over the morning show from Pratt in 1998, as well as working at the station from 1993-1996.
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In an email circulated to the press, Zelisko informs that the show last show aired on Sunday, July 22:
The premise of the show is to play all forms of music, new and old, with sonic excellence being the only criteria. I sometimes feature the music of concert acts I bring to town, (my day job for the last four decades), along with interviews by some of the artists, and friends in show business that I have made over the years. This insured topical and current exposure for their concerts, regardless of genre, which made them part of the format as their concert date approached.
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In lieu of not being able to say "so long for now" properly, over the air, I bid you adieu, for now, as this chapter ends, and other new ones begin.
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April 3, 2012
CHRISTINE A. BERGERSON, PLAINTIFF,v.NEW YORK STATE OFFICE OF MENTAL HEALTH, CENTRAL NEW YORK PSYCHIATRIC CENTER, DEFENDANT.
MEMORANDUM--DECISION and ORDER
Following a trial in October 2009, the jury awarded plaintiff Christine Bergerson*fn1 ("plaintiff" or "Bergerson") $580,000 in compensatory damages for discriminatory termination.
This award was subsequently reduced to the statutory cap of $300,000, plaintiff's counsel was awarded attorneys' fees based on a $210 hourly rate, and defendant's post-trial motion to bar any award of back pay was granted. See Bergerson v. N.Y. State Office of Mental Health, 2010 WL 610694 (N.D.N.Y. 2010). The judgment was entered on February 17, 2010. Dkt. No. 77.
Plaintiff appealed to the United States Court of Appeals for the Second Circuit, challenging: (1) the grant of defendant's motion barring back pay; (2) the pre-trial dismissal of her state law claims; and (3) the reduced attorneys' fees rate. The Second Circuit affirmed the dismissal of the state law claims and the attorneys' fees rate, but ordered an inquest as to whether plaintiff should be awarded back pay and, if reinstatement is inappropriate, front pay. Bergerson v. N.Y. State Office of Mental Health, 652 F.3d 277 (2d Cir. 2011).
On October 5, 2011, a hearing was held pursuant to the Second Circuit's mandate. At the hearing, the parties stipulated that reinstatement is inappropriate. The parties have submitted proposed findings of fact and conclusions of law. Dkt. Nos. 117, 118. Plaintiff has also filed a motion for attorneys' fees and costs related to her appeal. Dkt. No. 116. Defendant has responded to this motion. Dkt. No. 122.
The following facts are based on the parties' written submissions as well as the testimony and evidence provided at the October 5, 2011, hearing.*fn2
Bergerson has a General Equivalency Diploma ("GED"). She began working as a Security Hospital Treatment Aide ("SHTA"), Grade 14, at Central New York Psychiatric Center ("CNYPC") on September 2, 2004.*fn3 Plaintiff's 2005 tax return indicates that she earned a total of $61,452 in salary and overtime from CNYPC. Hr'g Ex. PF. Her base salary in 2005 was $36,124. Hr'g Ex. PD.
Bergerson was terminated on January 31, 2006. She promptly contacted the New York Civil Service Department in Albany and was placed back on the civil service employment list. As a result, she received several "canvas letters" regarding available positions within the Office of Mental Health. Tr. 26:5. She interviewed for some positions but was unable to obtain employment. Bergerson also sought employment outside of the civil service channels and began working for Birnie Bus Service ("Birnie Bus") as a full-time bus driver in September 2006. She was not provided with health insurance or benefits. In 2006 plaintiff received $10,530 in unemployment payments and earned $10,737.53 from CNYPC and $2756.54 from Birnie Bus. Hr'g Ex. D2.
In May 2007 plaintiff left Birnie Bus and started working at the St. Lawrence Psychiatric Center ("SLPC") in a full-time, Grade 11, position on May 10. Her base salary at SLPC was $32,138, and she received health insurance and benefits. Hr'g Ex. PD. Plaintiff held this employment until September 26, 2007, when she resigned due to the lengthy commute and associated time away from her family, and a lack of overtime offered. Plaintiff then returned to work at Birnie Bus on a full-time basis. She earned a total of $22,361.35 in 2007-$10,646.72 from Birnie Bus and $11,714.63 from SLPC. Hr'g Ex. D2. Assuming she was paid a consistent amount by Birnie Bus, plaintiff earned $6181.97 for the eighteen weeks prior to her employment with SLPC and $4464.75 for the thirteen weeks after her resignation from SLPC.
In January 2008 Bergerson began working part-time at the New York School for the Deaf. She continued to work part-time at Birnie Bus as well. Her employment with the School for the Deaf ended in September 2010 after a teenager alleged that plaintiff assaulted her. Bergerson continued to work part-time at Birnie Bus until March 2011, when she was suspended after receiving a speeding ticket. Plaintiff simply did not return to Birnie Bus and has received unemployment payments since March 2011.
At the hearing, plaintiff called four current employees of CNYPC who hold the same Grade 14 SHTA position she held prior to her termination. These employees made it clear that they receive an annual increase in salary and work thousands of hours of overtime every year. They also testified that the availability of overtime greatly increased in 2008 due to budget constraints and a hiring freeze. The testimony regarding their individual annual earnings will be discussed in greater detail below. The principal payroll clerk at CNYPC testified that during the relevant time, CNYPC employees received an annual raise of four percent. Tr. 175:10.
Since her termination from CNYPC, Bergerson has sporadically attended mental health counseling and occasionally taken prescription medications for post traumatic stress syndrome. At the hearing, plaintiff called a psychotherapist, Helene Shulkin, to testify about the impact her mental health condition has on her ability to secure comparable employment. However, Ms. Shulkin primarily treats plaintiff's daughters and only "collaterally" meets with plaintiff for family counseling sessions. Tr. 137:8--9. Further, Ms. Shulkin has been meeting with plaintiff on a monthly basis for less than two years and is not the provider who prescribes her medications. Her opinion that plaintiff is unable to maintain comparable employment due to the emotional distress she incurred as a result of her termination from CNYPC is therefore not credible.
A. Back Pay
1. Standard
The purpose of back pay is "to restore the employee to the status quo [she] would have enjoyed if the discriminatory discharge had not taken place." Kirsch v. Fleet St., Ltd., 148 F.3d 149, 166 (2d Cir. 1998) (internal quotation marks omitted). While an award of back pay is discretionary and may be denied if it would frustrate this purpose, a district court must provide a sufficient explanation of its reasons for denying back pay. Albemarle Paper Co. v. Moody, 422 U.S. 405, 421 n.14, 95 S. Ct. 2362, 2373 (1975).
An award of back pay should be based on what the plaintiff would have earned had she not been terminated. Kirsch, 148 F.3d at 166. When calculating this figure, a court may consider evidence of the salaries paid to other employees if a proper foundation is laid "to permit the reasonable inference that [her] salary would have matched or been pegged to the salaries of others." Id. An award of back pay ordinarily spans from the date of plaintiff's discriminatory termination to the date of judgment and includes "lost salary, including anticipated raises, and fringe benefits." Saulpaugh v. Monroe Cmty. Hosp., 4 F.3d 134, 144--45 (2d Cir. 1993). Further, Title VII authorizes pre-judgment interest on back pay. Id. at 145 (noting that failure to include pre-judgment interest is ordinarily an abuse of discretion).
2. Failure to Mitigate
An award of back pay can be offset by a plaintiff's failure to mitigate damages. "An employee discharged in violation of Title VII has an obligation to attempt to mitigate her damages by using 'reasonable diligence in finding other suitable employment.'" Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684, 695 (2d Cir. 1998) (quoting Ford Motor Co. v. E.E.O.C., 458 U.S. 219, 231, 102 S. Ct. 3057, 3065 (1982)). The burden is on the defendant employer to demonstrate that the plaintiff has failed to mitigate. Id. This burden can be met by establishing that suitable work existed and the plaintiff "did not make reasonable efforts to obtain it." Id. Suitable employment entails that which is "substantially equivalent," but not necessarily identical, to plaintiff's former employment. Ford Motor Co., 458 U.S. at 232, 102 S. Ct. at 3066.
"The ultimate question is whether the plaintiff acted reasonably in attempting to gain other employment or in rejecting proffered employment." Hawkins, 163 F.3d at 695. (internal quotation marks omitted). A plaintiff fails to mitigate damages when her voluntary resignation from comparable employment is motivated by personal reasons as opposed to unreasonable working conditions. Id. at 696; see also Griffin v. Four Seasons Resorts & Hotels, Ltd., No. 96 Civ. 4759, 1999 WL 212679, at *1 (S.D.N.Y. Apr. 12, 1999) (highlighting "prevailing precedents that uniformly hold that a decision to forego comparable employment for personal reasons, however understandable, constitutes a failure to mitigate damages as a matter of law").
Defendant has met its burden to demonstrate that Bergerson failed to mitigate her damages by resigning from her job at SLPC. This was a full-time Grade 11 position within the Office of Mental Health and provided health insurance and benefits. The base salary of $32,138, which was only slightly less than her base salary of $36,124 at CNYPC, would have increased annually. It was thus substantially equivalent to plaintiff's former position at CNYPC.*fn4 Bergerson failed to act reasonably when she voluntarily left this employment and returned to Birnie Bus, where she earned substantially less money and was not provided with insurance or benefits. Plaintiff's reasons for resigning from SLPC-primarily the lengthy commute, time away from her family, and loneliness in a new environment-are personal in nature and do not amount to unreasonable working conditions. Therefore, Bergerson is only entitled to back pay from January 31, 2006, (the date of her termination from CNYPC) to September 26, 2007, (the date she voluntarily resigned from her position at SLPC).
3. Back Pay Calculation
An award of back pay is determined by calculating the total lost salary, including anticipated raises, and fringe benefits. This total is then reduced by any income earned by plaintiff during the same time period. Because no testimony or evidence was offered regarding the value of the health insurance plaintiff received at CNYPC, such will not be included in the back pay calculation. Indeed, plaintiff's own accountant did not include health insurance in his calculations. Further, plaintiff was provided with health insurance at SLPC.
Similarly, while employees of CNYPC receive retirement contributions and may participate in a deferred compensation program, it would be complete speculation to assign a specific value to these benefits. There was no testimony regarding what percentage of annual earnings goes into an employee's retirement or deferred compensation account. Although plaintiff's accountant estimated her lost retirement income based on a three percent rate of her earnings, there is no evidence indicating that this percentage is accurate. Therefore, contributions to retirement and deferred compensation accounts will not be included in the back pay calculation.
In 2005, plaintiff earned $36,124 in base salary and $25,328 in overtime for a total of $61,452. Accounting for a four percent annual raise, plaintiff would have earned a base salary of $37,568.96 in 2006 and $39,071.72 in 2007.*fn5 Assuming plaintiff would have worked a comparable amount of overtime in 2006 and 2007 as she did in 2005, she would have earned $26,323.83 in overtime in 2006 and $27,376.78 in 2007. Thus, had she not been terminated, plaintiff would have earned a total of $63,892.79 in 2006 and $66,448.50 in 2007. The 2007 total will be reduced to $48,971.63 to reflect the amount she would have earned up until September 26 of that year. This equals a total of $112,864.42 in lost salary and overtime from the date of Bergerson's termination from CNYPC to the date she resigned from SLPC.*fn6
In 2006 plaintiff received $10,530 in unemployment payments and $2756.54 from her employment with Birnie Bus. In 2007 she earned $6181.97 from Birnie Bus prior to taking a job at SLPC and $11,714.63 at SLPC. Therefore, $31,183.14 will be deducted from the award of back pay for a total of $81,681.28. Accounting for a 2.04% pre-judgment interest,*fn7 compounded annually from January 31, 2006, until this date,*fn8 gives a final back pay total of $92,516.53.
B. Front Pay
An award of front pay is also discretionary and is intended to make "victims of discrimination whole in cases where the factfinder can reasonably predict that the plaintiff has no reasonable prospect of obtaining comparable alternative employment." Padilla v. Metro-North Commuter R.R., 92 F.3d 117, 125--26 (2d Cir. 1996). If a court specifically finds that a back pay award is sufficient to make the plaintiff whole, a denial of front pay is not an abuse of discretion. Saulpaugh, 4 F.3d at 145.
As explained above, Bergerson was able to obtain comparable alternative employment; to wit, her full-time position atSLPC. She has a GED and was able to secure other employment to supplement her income. Defendant cannot be held financially responsible for plaintiff's inability to maintain her employment at Birnie Bus or the School for the Deaf. Indeed, it was plaintiff's affirmative conduct that ended these periods of employment. Plaintiff's assertion that the emotional distress caused by her termination from CNYPC perpetually prevents her from maintaining employment is unpersuasive. As noted above, the testimony of plaintiff's family therapist is not credible with respect to this issue. Moreover, plaintiff only occasionally sought mental health counseling and sporadically requires prescription medication. In short, there is nothing about her physical or mental condition to prevent her from obtaining comparable employment in the future.
Further, the $92,516.53 that will be awarded in back pay is sufficient to make plaintiff whole. Therefore, her request for front pay will be denied.
C. Attorneys' Fees and Costs
Costs other than attorneys' fees "should be allowed to the prevailing party." Fed. R. Civ. P. 54(d). Title VII authorizes a district court to award reasonable attorneys' fees to a "prevailing private party." Bliven v. Hunt, 579 F.3d 204, 213 (2d Cir. 2009). Attorneys' fees are awarded by determining a presumptively reasonable fee, reached by multiplying a reasonable hourly rate by the number of reasonably expended hours. See Simmons v. N.Y.C. Transit Auth., 575 F.3d 170, 174 (2d Cir. 2009). The reasonable hourly rate should be "'what a reasonable, paying client would be willing to pay' given that such a party wishes 'to spend the minimum necessary to litigate the case effectively.'" Id. (quoting Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 493 F.3d 110, 112, 118 (2d Cir. 2007), amended on other grounds by 522 F.3d 182 (2d Cir. 2008)).
The present prevailing hourly rates in this district, which are what a reasonable paying client would be willing to pay, are $210 for an experienced attorney and $80 for a paralegal. Lewis v. City of Albany Police Dep't, 554 F. Supp. 2d 297, 298--99 (N.D.N.Y. 2008), aff'd, 332 F. App'x 641 (2d Cir. 2009). "Additionally, it is customary in this district to allow only one-half the hourly rate for travel time." Id. at 299. Further, attorneys' fees should be limited to those claims for which the plaintiff achieved success. Barfield v. N.Y.C. Health & Hosps. Corp., 537 F.3d 132, 152 (2d Cir. 2008). Therefore, unsuccessful claims must be eliminated and the attorneys' fees reduced appropriately. Id.
Plaintiff seeks $19,326.50 in attorneys' fees and $842.50 in costs related to her appeal. Her calculations are based on a $250 hourly rate for an experienced attorney, an $85 hourly rate for a paralegal, and a $125 hourly rate for travel. Defendant argues that plaintiff is not entitled to attorneys' fees because she did not "prevail" on her appeal as the Second Circuit affirmed both the dismissal of her state law claims and the $210 hourly rate for attorneys' fees. Defendant also notes that it agreed "remand is appropriate to enable the district court to clarify its post-trial rulings as to compensatory damages and backpay." See Bergerson, 652 F.3d at 281.
The parties' submissions have been reviewed and their arguments considered. Defendant only agreed to a remand because plaintiff appealed to the Second Circuit. To that extent, plaintiff "prevailed" on her appeal. However, plaintiff did not prevail on the remainder of her appeal as the Second Circuit affirmed the dismissal of her state law claims and upheld the $210 hourly rate for attorneys' fees. Therefore, any attorneys' fees will be reduced by fifty percent. The prevailing hourly rates of $210 for an experienced attorney, $80 for a paralegal, and $105 for travel will be applied. The costs and legal hours claimed by plaintiff-65.9 hours for attorney Bosman, 14.9 hours for her paralegal, and 13 hours of travel-are reasonable.
Accordingly, plaintiff is entitled to reasonable attorneys' fees of $8198.00 and costs of $842.50, for a total of $9040.50.
Plaintiff is entitled to an award of back pay from the date of her termination from CNYPC (January 31, 2006) until the date on which she voluntarily resigned from SLPC for personal reasons (September 26, 2007). The parties have stipulated that reinstatement is an inappropriate remedy in this case. Because the award of back pay makes her whole, and she retains the ability to obtain comparable alternative employment, plaintiff will not be awarded any front pay. Finally, plaintiff will be granted reasonable attorneys' fees and costs related to her appeal.
Therefore, it is
ORDERED that
1. Plaintiff is awarded back pay in the total amount of $92,516.53, including interest and compounded annually;
2. Reinstatement is DENIED as moot;
3. Plaintiff's request for front pay is DENIED;
4. Plaintiff is awarded attorneys' fees and costs in the total amount of $9040.50;
5. As plaintiff has prevailed on this determination of back pay, she may seek reasonable attorneys' fees and costs related to the October 5, 2011, hearing by filing a motion on or before April 17, 2012; and
6. Defendant shall file any response to plaintiff's motion on or before May 1, 2012.
The Clerk of the Court is directed to enter a supplemental judgment in favor of plaintiff and against the defendant in the total of $101,557.03, with back pay in an amount of $92,516.53 including interest and attorneys' fees and costs in the amount of $9040.50.
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