Monique Tirado (“Tirado” or “plaintiff”) brought a class action against Victoria’s Secret Stores, LLC April 15, 2021, in the United States District Court for the Eastern District of California. [i] The complaint alleged five causes of action (1) failure to pay for all hours worked, (2) failure to pay minimum wage and liquidated damages, (3) waiting time penalties, (4) failure to provide timely and accurate itemized wage statements, and (5) unlawful business practices. [ii] On March 9, 2023, United States District Judge Jennifer L. Thurston ruled to stay Tirado’s lawsuit according to the first-to-file rule, because the claims for unpaid wages overlapped with lawsuits being pursued in other federal actions. [iii]
This class action was brought by Tirado on behalf of individuals who have worked for Victoria’s Secret Stores, LLC and L Brands, Inc. (“Defendants”) as non-exempt hourly employees. These employees were subject to Defendants’ wage and hours policies and COVID-19 health protocols and practices. The complaint alleged plaintiff and similarly situated workers were denied payment for the hours worked and had been forced to undergo temperature screenings while off the clock.[iv] Plaintiff and class members were required to wait on average 5 minutes for temperature screenings at the beginning of their shift. The complaint alleged that this time spent waiting for temperature checks is compensable, even though it was before clocking in, but it nevertheless went unpaid. [v] The complaint sought class action certification, compensatory and liquidated damages, declaratory relief, restitution, interest, fees, and costs.[vi]
Other Similar Cases
There are four cases currently pending with similar claims: Ochoa v. L Brands Inc. et al.; Shauntese Lee v. Victoria’s Secret et al.; Elia Cortes v. Victoria’s Secret Stores LLC et al.; and, Monica Velazquez et al. v. L Brands Inc. [vii] All were filed between 2017 and 2020. [viii]
The decision to stay Tirado’s case was premised on the first-to-file rule.[ix] This rule generally dictates the court in which an action is first filed is the appropriate court to determine whether subsequently filed cases involving substantially similar issues should proceed. [x] Tirado argued her claims were distinct “because they arose from policies instituted after the start of the COVID-19 pandemic,” however Tirado did not define the class to limit the members. Tirado’s complaint defines the class as “all current and former, hourly, non-exempt workers employed at any Victoria’s Secret store throughout California during the time period starting March 4, 2020, until resolution of this action.”[xi] Since this definition did not limit the proposed class to only those employees who underwent temperature screenings, “the claims at least partially overlapped with other cases seeking wages for off the clock work.” [xii] Judge Thurston determined that the parties in this lawsuit would be better able to determine which, if any, of the alleged injuries have not been redressed by waiting for the other actions to reach a final resolution. [xiii]
Colorado River Doctrine & Victoria’s Secret’s Bid to Dismiss
The Colorado River Doctrine allows a federal court to dismiss or stay a federal action in deference to pending parallel state court proceedings. [xiv] This doctrine relies on the wisdom of the courts to avoid repetitive and unnecessary litigation; this ultimately conserves judicial resources.[xv] Before a court can apply the Colorado River Doctrine it must first determine “whether the state and federal proceedings are parallel.” [xvi] This can be done by looking at the nature of the parties and nature of the issues.[xvii]
Judge Thurston denied Victoria’s Secret’s bid to dismiss Tirado’s action in its entirety under the Colorado River Doctrine. Even though the Court was permitted to dismiss federal actions that significantly overlap with state court lawsuits, Judge Thurston ruled that claims regarding temperature checks potentially arose from separate practices than the pre-shift work policies in Ochoa.[xviii] These claims lacked the substantial similarity that would warrant a dismissal under the Colorado River Doctrine.[xix]
When filing a class action lawsuit, especially when other similar lawsuits are already pending, it is essential to narrowly define the class that the suit seeks to represent to avoid a dismissal or stay. This is a helpful tool especially to employer defendants facing multiple lawsuits alleging similar violations.
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[i] Caleb Drickey, Victoria’s secret worker must wait on Covid Screening Suit Law360 (2023), https://www.law360.com/articles/1584765/victoria-s-secret-worker-must-wait-on-covid-screening-suit.
[ii] Compl. ¶ 2 Tirado, et al. v. Victoria’s Secret Stores, LLC, et al.
[iii] Victoria’s Secret Worker must wait on Covid Screening Suit, supra note 1.
[iv] Comp. ¶ 1 Tirado, et al., supra note 2
[v] Id. ¶ 17
[vi] Compl. Prayer ¶¶ 1 through 10, supra note 2.
[vii] Victoria’s Secret Worker must wait on Covid Screening Suit, supra note 1.
[x] Amol Parikh, First-to-File Rule Must Be Followed Unless Compelling Circumstances Justify Exception, JD Supra (2020), https://www.jdsupra.com/legalnews/first-to-file-rule-requires-that-action-6352977/.
[xi] Compl., Tirado, et al. v. Victoria’s Secret Stores, LLC, et al.
[xii] Victoria’s Secret Worker must wait on Covid Screening Suit, supra note 1.
[xiv] Matthew D. Church, The Colorado River Doctrine Plant Christensen & Kanell (2021), http://www.pckutah.com/newsroom/2017/4/10/the-colorado-river-doctrine (last visited Apr 14, 2023).
[xv] Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976) (citation omitted) (internal quotation marks omitted); see also Rienhardt v. Kelly, 164 F.3d 1296, 1302 (10th Cir. 1999) (“In other words, the Colorado River Doctrine was adopted to avoid duplicative litigation.”)
[xvi] Allen v. Bd. of Educ., Unified Sch. Dist. No. 436, 68 F.3d 401, 402 (10th Cir. 1995).
[xvii] Health Care & Ret. Corp. of Am. v. Heartland Home Care, Inc., 324 F. Supp. 2d 1202, 1206.
[xviii] Caleb Drickey, Victoria’s secret worker must wait on Covid Screening Suit Law360 (2023), https://www.law360.com/articles/1584765/victoria-s-secret-worker-must-wait-on-covid-screening-suit.
[xix] Victoria’s Secret Worker must wait on Covid Screening Suit, supra note 1.