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Juan Espinoza, Paul Marquez, Aaron Epperly and Eric Schmidt v. County of Fresno

March 23, 2013

JUAN ESPINOZA, PAUL MARQUEZ, AARON EPPERLY AND ERIC SCHMIDT, PLAINTIFFS,
v.
COUNTY OF FRESNO,
DEFENDANT.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

ORDER GRANTING DEFENDANT'S MOTION FOR DECERTIFICATION OF COLLECTIVE ACTION

Plaintiffs are deputy sheriffs with the Fresno County Sheriff's Department. They pursue this collective action against the County of Fresno under the Fair Labor Standards Act, 29 U.S.C. §§ 201-19 (2012) (FLSA), alleging that they were not compensated for overtime required of them by the County. On August 3, 2011, the Court granted summary judgment for Defendant on the claims relating to donning and doffing; commute time; vehicle maintenance; and meal breaks. Doc. 156. The surviving claims are for (1) maintenance of uniforms; (2) maintenance of safety equipment; (3) maintenance of firearms (which Defendant subdivides into quarterly and more-than-quarterly); and (4) qualifying of firearms. Doc. 169.

Before the Court is Defendant's motion to decertify the collective action pursuant to 29 U.S.C. § 216(b). The issue presented is whether Plaintiffs are "similarly situated," such that the four named Plaintiffs may testify representatively for the additional 200 sheriff's deputies who have opted into this suit. 29 U.S.C. § 216(b); Henderson Decl. ¶2-3; George Decl. ¶4.

The Court finds that Plaintiffs are not similarly situated with respect to their remaining

2 claims. These arise out of disparate factual and employment settings, rebutting them will require 3 individual defenses, and the interests of justice and judicial efficiency will be frustrated if these 4 claims proceed on a collective basis. Accordingly, Defendant's motion to decertify the collective 5 action is GRANTED in full. 6

I. Factual Background

The Fresno County Sheriff's Department has approximately 1,000 employees, of whom 8 approximately 380 are deputy sheriffs. Mims Decl. ¶3. The bureaus relevant to this action are the 9 Patrol Bureau, the Detective Bureau, and the Court and Administrative Services Bureau. Id.

Under Defendant's written overtime policy, overtime is only to be used when reasonably necessary for: (1) special assignments; (2) emergency situations; (3) casual overtime with prior approval; and (4) administrative overtime with prior approval. Fresno County Sheriff's Department Policies and Procedures ("P&P") No. 604. Under this policy, overtime must generally be pre-authorized by a supervisor. Id. Further,it is thedeputy's responsibility to report all hours actually worked, including overtime. Id. Sheriff's Department employees are encouraged to complete their tasks within the hours provided during their regularly scheduled shifts; unnecessary overtime is to be avoided. Mims Decl. ¶6.

A. Duty Weapon Qualification

Defendant requires its deputies to qualify their duty weapons quarterly. Mims Decl. ¶9, Ex.

B. As part of weapons qualifications, deputies perform a shooting test. Mims Depo. 84:12-16; Bewley Depo. 53:18-54:3. If the deputy passes, she is released to clean her weapon. Mims Depo. 86:18-20; Broughton Depo. 29:19- 21; Deimerly Depo. 124:10-15; Epperly Depo. 26:8-18; Espinoza Depo 37:13-15. If the deputy fails, she is provided on-the-spot training and then given another opportunity to qualify. Mims Depo. 84:17-23.

Defendant instructs deputies to schedule these weapons qualifications during on-duty time. Bewley Depo. 54:7-9; Broughton Depo. 29:12-21; Capriola Depo. 82:1-5. There is on-duty time to qualify and clean, whenever deputies can "fit it in." Schmidt Depo. 42:01-43:2. For a variety of reasons, however, deputies' assignments sometimes prevent them from doing so. The procedure varies slightly between patrol deputies and courtroom deputies. Patrol deputies are apparently 2 assigned a day to qualify. Espinoza Dep. 47:12-21. Deputy Espinoza, who has been a patrol deputy 3 in the past, sometimes had difficulty qualifying on his assigned day. This could be due to his 4 working a graveyard or swing shift, shortages of manpower, or calls for service. Id. By contrast, 5 courtroom deputies are not assigned a day for qualifying, but are responsible to find time to qualify 6 and to arrange for another deputy to cover their duties while they qualify. Marquez Depo. 30:13-19; 7

Deimerly Depo. 117:20-118:3. Deputy Marquez, a courtroom deputy, states that it is nevertheless 8 hard for him to find time to qualify during the workday. Although he has qualified during the 9 workday, he points to short-staffing in the courts as a reason why, on two or three occasions, "there was no way to get off" and he had to qualify after hours. Marquez Depo. 31:8-12.

Technically, Defendant's written policies allow for weapons qualification to be done on overtime. Under the written overtime policy for "other necessary activities," if a deputy's schedule is such that she legitimately cannot qualify during her shift, she may do so on overtime if she receives supervisor approval.*fn1 This policy gives complete discretion to supervisors, and Defendant is vague as to how its supervisors exercise that discretion. Defendant does not "generally" approve overtime for qualifying. Horton Depo. (Vol. II) at 243:25-244:2. However, requests are approved on a "case-by-case basis" depending on the reason for the request; there have been "people" for whom this has been permitted "in the past." Mims Decl. ¶10; Horton Depo. Vol. 2, 246:14-16; Dadian Depo. 74:17-75:9. Also, Defendant is vague as to how supervisors communicate to deputies how they will exercise that discretion. According to one captain, this communication is informal; deputies must ask their sergeant, or learn through time, experience, and training, or "basically know." Horton Depo. Vol. 2, 246:4-14.

Plaintiffs point to evidence that, in fact, supervisors are denying overtime for weapons maintenance across-the-board. Sergeant Frances Devins was heard instructing courtroom deputies that "overtime is not authorized for [firearms] qualifications." Deimerly Depo., 116:18-21. The lead range master, Vincent Frascona, "estimate[s] that at least 20-30 Deputies per quarter show up on their own time (off-the-clock) for their quarterly qualification procedure." Frascona Decl. ¶5. 2

Frascona states that this fact is known to the "prior and current" Lieutenants who have responsibility 3 for the range, meaning at least the current Lieutenant and his predecessor. Id.*fn2 Frascona shared his 4 estimate with Neil Dadian, now a Captain, who at that time was the Lieutenant responsible for the 5 shooting range. In speaking with Dadian, Frascona specifically raised "the question of officers 6 qualifying off-duty and concerns I had about that process." According to Frascona, Dadian 7 responded with words to the effect that, "[I]f that's what they want to do we don't have a problem 8 with it as long as they don't put in for overtime." Frascona Decl. ¶5. Frascona's declaration thus 9 suggests that now-Captain Dadian has been informed of the rate of overtime qualification. And (notwithstanding Defendant's view that Captain Dadian was only referring to deputies who "want to" qualify off-duty) Frascona's declaration also suggests that Captain Dadian believes that overtime should not be paid for after-hours weapons maintenance.*fn3

Out of the ten Plaintiffs deposed, three testified that they qualified their duty weapons exclusively on County time. Schmidt Depo. 42: 10-43:2; Fullenkamp Depo. 75:16-76:18; Bewley Depo. 51:25-55:14. Three qualified off-duty, but did so out of personal preference. Broughton Depo. 32: 12-20; Epperly Depo. 6 24:18-26:1; Richardson Depo. 66:14-68:19. The remaining four deputies qualified off-duty because they felt they had to. The common and prominent reason that they each provide is that they were unable to obtain relief, which they attributed to a shortage of manpower. Marquez Depo. 30:25-31: 17; Espinoza Depo. 47:7-25; Deimerly Depo. 114:25-115: 13; Capriola Depo. 81:21-13 82:20. Out of 196 total non-representative Plaintiff's declarations, 122 (or 63%) make no claim for off-the-clock weapons qualification. Of those who do, 34 (or 43% of the total sample) qualified off-the-clock three or fewer times during the four-year period covered by the declarations, or less than once per year. Littlewood Decl. ¶27.

Defendant points out that the deputies who are now suing to be compensated for off-duty weapons qualification did not previously submit this work in their timesheets. Plaintiffs counter that requesting overtime for this activity would have been a futile exercise. For example, Deputy Marquez stated that although he never explicitly sought or was told not to seek overtime, "[i]t was just something we knew we wouldn't get paid to do. I wouldn't even ask for it." Marquez Depo. 2 30:4-32:19. Deputy Deimerly stated that he recalled hearing from someone that he could not receive 3 overtime for qualifying, though he could not remember who that person was. Deimerly Depo. 4 115:19-25. 5

B. Duty Weapon Cleaning-Quarterly

6

Immediately after a deputy qualifies his weapon, he is required to clean his weapon. Mims Decl. ¶18. A deputy is thus explicitly required to clean his weapon four times a year. 8

To the extent that the deputy has qualified his weapon on County time, this postqualification 9 cleaning is also done on County time. Bewley Depo. 54:21-55:4; 55:11-14; Broughton Depo. 29:12-21; Dadian Depo. 69:22-25. Conversely, when a deputy does his quarterly qualification off-the-clock, he does his quarterly cleaning off-the-clock. Plaintiffs seek compensation for any quarterly weapon cleaning done off-the-clock.

C. Duty Weapon Cleaning-More Than Quarterly

Defendant does not have a policy requiring deputies to clean their weapons at times other than in connection with their quarterly qualifications. Frascona Decl. 2:8-10. However, Defendant requires that officers maintain their firearms in a fully operational condition. P&P No. 308 III(C). The lubricants in weapons tend to attract dirt, and Plaintiffs state that it is "frequently necessary" to clean their weapons more than every three months. Torres Decl. ¶9.*fn4

Nevertheless, deputies' cleaning regimens vary widely, based on the deputy's geographic location, assignment, and extraordinary events that may occur. Deputies working in more rural areas of Fresno County will be exposed to additional dirt, mud, and dust. Torres Decl. ¶9. When indoors, the gun and its lubricants can attract clothing fibers. Id. Detectives are frequently called upon to execute search warrants, which may expose their weapons to dirt or dust. Id. A former patrol deputy explained that he would clean his weapon whenever there was some extraordinary circumstance where his weapon was exposed to dirt. "If you're chasing somebody through a vineyard in Fresno, that dust goes everywhere." Bewley Depo. 55:18-56-7. Another patrol deputy would clean his weapon whenever a call for service exposed him to dirt, sand, mud, rain, or snow, such that his 2 weapon became dirty. Richardson Depo. 69:5-12, 69:21-70:6. 3 Frequency of cleaning also varies among deputies. One detective cleans his weapon eight

4 times beyond the quarterly cleanings. Torres Decl. ¶9. Another deputy, assigned to patrol, cleans his 5 handgun approximately sixteen times per year (not including the quarterly cleanings), plus two light 6 cleanings per week for dust and dirt. Another patrol deputy cleans his weapon twenty times beyond 7 the quarterly cleanings. Richardson Depo. 69:5-12, 69:21-70:6. A third patrol deputy does a less-8 thorough cleaning once a week, although sometimes "other collateral assignments" cause the gun to 9 get dirty more quickly. Schmidt Depo. 66:22-67:13.

D. Uniform Maintenance and Cleaning

Patrol Deputies and Courtroom Deputies typically wear the standard Class "B" Uniform. The uniform consists of a long or short-sleeve shirt; shoulder patches sewn onto the sleeves; rank insignia (if applicable); badge; nameplate; trousers/skirts; belts; and footgear. Memorandum of Understanding, 2005. They must be in full and proper uniform at the start of each shift. Gattie Depo. 38:17-25; Horton Depo. Vol. 1, 128:24-129:7, 149:1-9; Mims Depo. 73:18-23, 74:3-8. They are subject to inspections, both announced and unannounced, at any time. Torres Decl. ¶5. They can be subject to discipline if their uniforms are found to be in unacceptable condition. Id.*fn5

Defendant does not provide washing machines or dryers, nor may deputies pick up or drop off dry cleaning while on duty. Horton Depo. Vol. 1, 142:5-10, 160:13-14; Torres Decl. ¶5. Instead, deputies must take care of cleaning their uniforms during off-duty hours. Capriola Depo. 72:20-73:21; Torres Decl. ¶5. Deputies receive a uniform allowance from Defendant, Bewley Depo. 59:22-64:24, but the parties dispute whether this is meant to compensate deputies for the time spent maintaining their uniforms.

No County policy dictates or controls the manner or means by which deputies are to clean and maintain their uniform. Mims Decl. ¶12. Deputies have different cleaning methods and standards of cleanliness, and so their cleaning regimes take different amounts of time. Some deputies take their uniforms to the drycleaners. Epperly Depo. 45:9-46:6; Capriola Depo. 72:20-25;

Fullenkamp Depo. 15:14-17:16. Other deputies wash and press their own uniforms at home, 2 personally (Richardson Depo. 61:14-62:7; Deimerly Depo. 100:12-104:25) or with the help of their 3 spouse (Marquez Depo. 73:6-15). One deputy spends approximately 14 minutes every two weeks 4 driving to and from the drycleaners. Fullenkamp Depo. 16:14-17:16. Another spends about 60 5 minutes a week washing, pressing, and hanging his uniform, plus 20-40 minutes a week polishing 6 his boots. Richardson Depo. 61:14-63:5. Another spends 30 minutes a day, five days a week, which 7 includes doing his own washing and pressing. Deimerly Depo. 104:16-25. Surveying the 8 declarations, some deputies claim 15 minutes or less per ...


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