ORDER: (1) DENYING DEFENDANT CITY OF CHULA VISTA'S MOTION FOR SUMMARY JUDGMENT AND (2) GRANTING PARTIAL SUMMARY JUDGMENT (Doc. No. 207)
Presently before the Court is Defendant City of Chula Vista's motion for summary judgment on Plaintiff Deanna Michelle Mory's second and sole remaining cause of action for violation of the Fair Labor Standards Act (FLSA). (Doc. No. 207.) For the following reasons, the Court DENIES Defendant's motion as it pertains to Plaintiff's entire claim. However, the Court GRANTS partial summary judgment as to certain issues underlying Plaintiff's claim.
On April 22, 2005, Plaintiff began working as a police recruit for the Chula Vista Police Department (CVPD). (Zappia Decl. Ex. A, at 44.) Plaintiff spent six months in the police academy, and in October 2005, she entered CVPD's Field Training Officer program. (Id. Ex. B, at 8.) Plaintiff achieved permanent status as a police officer in October 2006, at the expiration of CVPD's eighteen-month probationary period for new recruits. (Id. Ex. B, at 6--7.) Plaintiff remained a police officer until she was terminated on October 22, 2008. (Turner Decl. Ex. A.)
Plaintiff alleges that, during her employment with CVPD, she regularly worked in excess of forty hours per week. (FAC ¶¶ 54.) In accordance with CVPD's policies and procedures, Plaintiff submitted Overtime Request forms to obtain compensation for 337.75 hours of overtime worked between June 27, 2005 and August 7, 2008. (Turner Decl. Ex. F.) Defendant compensated Plaintiff on all overtime requests Plaintiff submitted. (Id. Ex. G.) However, Plaintiff alleges that CVPD expected her to work-and that she did in fact work-additional overtime for which she did not submit overtime requests or receive compensation. (FAC ¶¶ 56--57; Opp'n 2--4; Mory Decl. ¶ 6.)*fn1 Additionally, Plaintiff alleges that she was entitled to compensation under the FLSA for time spent changing into and out of her uniform at the police station. (Opp'n 3--4.)
Plaintiff initially filed this action on March 13, 2007 and amended her complaint on June 14, 2007. (Doc. Nos. 1, 27.) On February 11, 2008, the Court dismissed without prejudice Plaintiff's first, fourth, fifth, seventh, and eighth causes of action, and dismissed with prejudice Plaintiff's third and sixth causes of action. (Doc. No. 98.) Plaintiff elected not to amend her complaint. On May 28, 2010, Defendant moved for summary judgment on Plaintiff's second and only remaining cause of action for violation of the FLSA. (Doc. No. 207.)
Federal Rule of Civil Procedure 56 permits a court to grant summary judgment where (1) the moving party demonstrates the absence of a genuine issue of material fact and (2) entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "Material," for purposes of Rule 56, means that the fact, under governing substantive law, could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997). For a dispute to be "genuine," a reasonable jury must be able to return a verdict for the nonmoving party. Anderson, 477 U.S. at 248.
The initial burden of establishing the absence of a genuine issue of material fact falls on the moving party. Celotex, 477 U.S. at 323. The movant can carry his burden in two ways: (1) by presenting evidence that negates an essential element of the nonmoving party's case; or (2) by demonstrating that the nonmoving party "failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Id. at 322--23. "Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment." T.W. Elec. Serv., Inc.
v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).
Once the moving party establishes the absence of genuine issues of material fact, the burden
shifts to the nonmoving party to set forth facts showing that a genuine issue of disputed fact remains. Celotex, 477 U.S. at 324. The nonmoving party cannot oppose a properly supported summary judgment motion by "rest[ing] on mere allegations or denials of his pleadings." Anderson, 477 U.S. at 256. When ruling on a summary judgment motion, the court must view all inferences drawn from the underlying facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Federal Rule of Civil Procedure 56(d) provides for partial summary judgment. See Fed. R. Civ. P. 56(d)(1) ("If summary judgment is not rendered on the whole action, the court should, to the extent practicable, determine what material facts are not genuinely in issue. . . . It should then issue an order specifying what facts . . . are not genuinely at issue. The facts so specified must be treated as established in the action."). Under Federal Rule of Civil Procedure 56(d), a court may grant summary judgment on less than the non-moving party's entire claim. Zapata Hermanos Sucesores, S.A. v. Hearthside Baking Co., 313 F.3d 385, 391 (7th Cir. 2002) (Posner, J.). "The partial summary judgment is merely a pretrial adjudication that certain issues shall be deemed established for the trial of the case. This adjudication . . . serves the purpose of speeding up litigation by eliminating before trial matters wherein there is no genuine issue of fact." Fed. R. Civ. P. 56 advisory committee's note.
Plaintiff alleges that she is entitled to overtime compensation under the FLSA for time spent performing several activities: (1) donning and doffing her police uniform and related gear at the police station; (2) doing "homework" during the police academy; and (3) writing incident reports and preparing for court appearances. (See Opp'n 5--25.) Plaintiff also alleges that she is entitled to compensation for missed lunch breaks and "pre-shift work . . . ." (Opp'n 25.) Defendant, on the other hand, variously contends that Plaintiff is not entitled to compensation for these activities as a matter of law, or that Plaintiff has already received compensation for these activities. (See Mem. ISO MSJ 9--20; Reply 3--9.) Having reviewed the instant motion, Plaintiff's opposition, and Defendant's reply, the Court DENIES Defendant's motion as it pertains to Plaintiff's entire claim. However, the Court GRANTS partial summary judgment on certain issues underlying Plaintiff's claim.
I. Defendant's Objection to Oliver Lee Drummond's Declaration
As an initial matter, Defendant objects to Oliver Lee Drummond's declaration, which Plaintiff submitted in opposition to Defendant's motion for summary judgment. (See Objections to Oliver Lee Drummond's Declaration.) Defendant contends that the Court should exclude Mr. Drummond's declaration in its entirety because Plaintiff did not designate Mr. Drummond as an expert witness by the discovery deadline. (Id. at 2; see Hadaegh Decl. ¶ 3; id. Ex. 2 (Plaintiff's expert designation); id. Ex. 3 (Plaintiff's supplemental expert designation); id. Ex. 6 (amended case management conference order regulating discovery).)
On November 25, 2009, Magistrate Judge Gallo issued an amended case management conference order requiring both parties to designate their experts and disclose any reports by March 1, 2010. (See Doc. No. 177, at 1 ("All discovery, including expert discovery, shall be completed on or before March 1, 2010." (second emphasis added)).) However, Plaintiff waited to designate Mr. Drummond as an expert until she filed her opposition to Defendant's motion for summary judgment on August 11, 2010. (See Doc. No. 215; see also Drummond Decl. ¶ 1 (describing Mr. Drummond as "an expert in the field of law enforcement and police administration").) It does not appear that Plaintiff has proffered Mr. Drummond's expert report or made him available for deposition. See Fed. R. Civ. P. 26(a)(2)(B).
Defendant's objection is well taken. Because Plaintiff has failed to justify her disregard for the amended case management conference order, the Court will not consider Mr. Drummond's untimely declaration for purposes of this motion for summary judgment. See, e.g., Wong v. Regents of University of California, 410 F.3d 1052, 1060--62 (9th Cir. 2005) (upholding district court's exclusion of testimony from untimely designated expert witness submitted in opposition to motion for summary judgment); Quevedo v. Trans-Pacific Shipping, Inc., 143 F.3d 1255, 1258 (9th Cir. 1998) (same). Accordingly, Defendant's objection is SUSTAINED.
II. Plaintiff Is Not Entitled to Compensation for Time Spent Donning and Doffing Her Uniform and Related Gear
"It is axiomatic, under the FLSA, that employers must pay employees for all hours worked."
Alvarez v. IBP, Inc., 339 F.3d 894, 902 (9th Cir. 2003), aff'd on other grounds sub nom. IBP, Inc. v. Alvarez, 546 U.S. 21 (2005) (citations and internal quotation marks omitted). "Work, the Supreme Court has long noted, is physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer." Id. (citing Tenn. Coal, Iron & R.R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 598 (1944)) (internal quotation marks omitted). However, "[t]hat [an] activity is 'work' as a threshold matter does not mean without more that the activity is necessarily compensable. The Portal-to-Portal Act of 1947 relieves an employer of responsibility for compensating employees for 'activities which are preliminary or postliminary to [the] principal activity or activities' of a given job." Alvarez, 339 F.3d at 902 (quoting 29 U.S.C. § 254(a) (1999)) (second alteration in original).
The Portal-to-Portal Act, however, does not relieve an employer of responsibility for compensating employees for all activities that take place before or after the regular work shift. See Steiner v. Mitchell, 350 U.S. 247, 252--253 (1956). "[A]ctivities performed either before or after the regular work shift, on or off the production line, are compensable under the portal-to-portal provisions under the Fair Labor Standards Act if those activities are an integral and indispensable part of the principle activities for which [employees] are employed . . . ." Id. at 256.
The Ninth Circuit has thrice considered whether donning and doffing of clothing and other gear are compensable activities under the FLSA. See Bamonte v. City of Mesa, 598 F.3d 1217 (9th Cir. 2010); Ballaris v. Wacker Siltronic Corp., 370 F.3d 901 (9th Cir. 2004); Alvarez, 339 F.3d 894. In Alvarez, plaintiff employees of a meat processing plant sought compensation under the FLSA for "(1) the pre-shift donning of protective gear and the preparation of work-related tools . . . ; (2) the requisite donning and doffing of protective gear during the . . . meal-break; and (3) the post-shift doffing, cleaning, and storing of protective gear and tools." Id. at 900. The Alvarez court used a three-stage inquiry in resolving the issue presented: "The first stage addressed whether the activity constituted 'work'; the second stage addressed whether the activity was an 'integral and indispensable' duty; and the third stage addressed whether the activity was de minimis."*fn2 Bamonte, 598 F.3d at 1224 (citing Alvarez, 339 F.3d at 902--03). In holding that the plaintiff employees' donning and doffing at the plant satisfied the "integral and indispensable" test-the second stage of the inquiry-the court relied heavily on the fact that "the donning and doffing of this gear on the . . . plant's 'premises [were] required by law, by rules of [IBP], [and] by the nature of the work . . . ." Alvarez, at 903 (second and third alterations in original) (emphasis added). Plaintiff employees' on-premises donning and doffing were also done for the benefit of IBP-the activities allowed IBP to satisfy its requirements under the law and prevented unnecessary workplace injury and contamination. Id. Thus, plaintiff employees' donning and doffing were compensable under the FLSA. Id. at 904; see also Ballaris, 370 F.3d at 911--912 (finding the donning and doffing of uniforms at a silicon wafer manufacturing plant compensable under the FLSA because, inter alia, the employer required the plaintiff employees to change into and out of their uniforms at the plant).
In Bamonte, the court addressed facts similar to those presented here. 598 F.3d at 1219--20. Plaintiff police officers sought compensation under the FLSA for time spent donning and doffing their uniforms and related gear on Defendant City of Mesa's premises. Id. at 1220. The officers had the option to don and doff at home; "no requirement [was] imposed on officers by the City." Id. However, the officers explained that they preferred to don and doff their gear at the police station. Id.
The explanation included the following considerations: (1) the risk of loss or theft of uniforms and gear at home; (2) potential access to the gear by family members or guests; (3) distractions at home that might interfere with the donning process; (4) safety concerns with performing firearms checks at home; (5) discomfort associated with wearing the gear while commuting; (6) the increased risk of being identified as a ...