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Kevin Waine-Golston and andre Corbin, Individually and On Behalf of Other Members of the General Public Similarly Situated v. House Partnership

March 27, 2013

KEVIN WAINE-GOLSTON AND ANDRE CORBIN, INDIVIDUALLY AND ON BEHALF OF OTHER MEMBERS OF THE GENERAL PUBLIC SIMILARLY SITUATED,
PLAINTIFFS,
v.
HOUSE PARTNERSHIP, A NEW YORK GENERAL PARTNERSHIP AND DOES 1 THROUGH 10, INCLUSIVE,, DEFENDANT.



The opinion of the court was delivered by: Hon. Gonzalo P. CURIELUnited States District Judge

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [Dkt. No. 81.] TIME WARNER ENTERTAINMENT-ADVANCE/NEW

Before the Court is Defendant's motion for summary judgment. (Dkt. No. 81.) On November 30, 2012, Plaintiffs filed an opposition. (Dkt. No. 88.) Defendant filed a reply on December 14, 2012. (Dkt. No. 90.) On February 15, 2013, the Court held a hearing. (Dkt. No. 96.) Eric Yaeckel, Esq. and Kevin Sullivan, Esq. appeared on behalf of Plaintiffs and Joseph Ozmer, Esq. and Michael Kabat, Esq. appeared on behalf of Defendant. Based on the papers, applicable law, and hearing oral argument, the Court GRANTS Defendant's motion for summary judgment.

Background

This action was originally filed in the Superior Court of California for the County of San Diego on April 1, 2009. On May 13, 2011, the case was removed to this Court pursuant to the Class Action Fairness Act of 2005. (Dkt. No. 1.) On June 10, 2011, Plaintiffs Kevin Waine-Golston and Andre Corbin filed an amended complaint against their employer, Time Warner Entertainment-Advance/New House Partnership ("Defendant"). (Dkt. No. 6.) The first amended complaint alleges a collective action pursuant to 29 U.S.C. § 216(b) for violations of the Fair Labor Standards Act ("FLSA"); a class action for violation of the California Labor Code; a class action for violation of California Business & Professions Code section 17200 et seq.; and penalties pursuant to California's Private Attorneys General Act of 2004 ("PAGA"). (Dkt. No. 6, FAC ¶¶ 11-14.)

As to the California state causes of action, Plaintiffs allege that Defendant failed to provide overtime compensation in violation of Labor Code section 510(a); failed to provide all wages due and owing in violation of Labor Code section 204(a); failed to provide accurate itemized wage statements in violation of Labor Code section 226(a); failed to maintain accurate time records in violation of California Code of Regulations, title 8, section 11110 et seq; and failed to comply with Labor Code section 203(a) with respect to Plaintiffs who were discharged or who quit. (Id. ¶ 69.)

The factual basis for all the causes of action is that Plaintiffs and all other nonexempt employees are required to arrive approximately fifteen minutes prior to the beginning of their shifts in order to log into their computers and have all necessary software programs running prior to the start of their shifts. (Dkt. No. 6, FAC ¶ 75.) Second, Plaintiffs assert that Defendant does not pay its employees the time spent logging into the computers and/or loading programs at the beginning of the day until the time they activate Avaya/Kronos, Defendant's time-keeping software, and the time spent deactivating Avaya/Kronos until the time they log out of their computers. (Id. ¶ 76.) Lastly, Plaintiffs maintain that Defendant failed to pay overtime compensation based on Defendant's rounding policy. (Id. ¶¶ 48, 59-61.)

On May 21, 2012, Plaintiffs filed a motion to certify class of California employees only. (Dkt. No. 51.) On May 18, 2012, three days prior to filing their motion for class certification, Plaintiffs filed a motion for leave to file a second amended complaint. (Dkt. No. 50.) On October, 9, 2012, the Court denied Plaintiffs' motion for leave to amend the first amended complaint. (Dkt. No. 83.) Specifically, the Court denied Plaintiffs' motion for leave to add new legal theories and factual allegations regarding Defendant's time rounding policy; Defendant's failure to include a "birthday bonus" and discounted television cable service in the regular rate of pay; and Defendant's failure to provide a second meal period after ten hours of work. (Id.) On October 12, 2012, the case was transferred to the undersigned judge. (Dkt. No. 84.) On December 18, 2012, the Court denied Plaintiffs' motion for class certification as to California Based Employees Only. (Dkt. No. 91.)

At the hearing, the Court requested the parties to meet and confer regarding the time records and provide supplemental briefing on the rounding issue. On March 8, 2013, the parties filed a joint response. (Dkt. No. 102.) They also filed their respective briefs regarding the joint response. (Dkt. Nos. 103, 104.)

Undisputed Factual Background

Plaintiff Kevin Waine-Golston was employed at Time Warner from October 29, 2010 until April 12, 2012. (Dkt. No. 88-6 at 2.) Plaintiff Andre Corbin was employed at Time Warner from July 20, 2007 until June 15, 2011. (Dkt. No. 88-6 at 2.) Both were employed at the San Diego call center. (Dkt. No. 88-6 at 2.)

In May 2010, Defendant integrated the Kronos clock-in/clock out process with the Avaya phone system in the San Diego call center. (Dkt. No. 88-6 at 6.) When Plaintiffs logged into the Avaya phone system, they would automatically be clocked into Kronos. (Dkt. No. 88-6 at 6.) Prior to May 4, 2010, Corbin clocked in and out using the Kronos timekeeping system by using a card swipe system located at the entrance/exit to the call center. (Dkt. No. 88-6 at 6.)

I. Legal Standard for Motion for Summary Judgment

Federal Rule of Civil Procedure 56 empowers the Court to enter summary judgment on factually unsupported claims or defenses, and thereby "secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 327 (1986). Summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A fact is material when it affects the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The moving party bears the initial burden of demonstrating the absence of any genuine issues of material fact. Celotex Corp., 477 U.S. at 323. The moving party can satisfy this burden by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element of his or her claim on which that party will bear the burden of proof at trial. Id. at 322-23. If the moving party fails to bear the initial burden, summary judgment must be denied and the court need not consider the nonmoving party's evidence. Adickes v. S.H. Kress & Co., 398 U.S. 144, 159-60 (1970).

Once the moving party has satisfied this burden, the nonmoving party cannot rest on the mere allegations or denials of his pleading, but must "go beyond the pleadings and by her own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file' designate 'specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324. If the non-moving party fails to make a sufficient showing of an element of its case, the moving party is entitled to judgment as a matter of law. Id. at 325. "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In making this determination, the court must "view[] the evidence in the light most favorable to the nonmoving party." Fontana v. Haskin, 262 F.3d 871, 876 (9th Cir. 2001). The Court does not engage in credibility determinations, weighing of evidence, or drawing of legitimate inferences from the facts; these functions are for the trier of fact. Anderson, 477 U.S. at 255.

II. Fair Labor Standards Act ("FLSA")

After a careful review of the first amended complaint and the parties' briefs, the Court concludes that the first amended complaint alleges that Defendant failed to pay employees for overtime compensation based on Defendant's rounding policy.*fn1 (FAC ¶ 17; see also Dkt. No. 88-2, Sullivan Decl. ¶ 5.) Specifically, Plaintiffs allege that they are required to arrive fifteen minutes prior to the beginning of their shifts to have all necessary software programs running prior to the start of their shifts; (id. ¶ 55); Defendant does not pay its employees from the time they log into their computers and/or load programs until the time they activate Avaya/Kronos and from the time they deactivate Avaya/Kronos until the time they log off, (id. ¶¶ 6, 47, 56); and Defendant does not pay overtime compensation for hours in excess of forty hours as indicated on their Avaya/Kronos time records based on Defendant's rounding policy. (Id. ¶¶ 59-61.)

Generally, employers are required to pay employees overtime for hours worked in excess of forty hours per week. Solis v. Washington, 656 F.3d 1079, 1083 (9th Cir. 2011). 29 U.S.C. § 207(a)(1) provides, no employer shall employ any of his employees . . . for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.

29 U.S.C. § 207(a)(1).

First, Defendant argues that any allegations before May 4, 2010 is without merit because the Avaya/Kronos system was not used prior to that date. (Dkt. No. 81-4, Testa Decl. ¶¶ 4-5.) Plaintiffs do not oppose or address this issue.

Defendant uses the Kronos timekeepng system to track hours worked by its hourly, non-exempt employees. (Dkt. No. 81-4, Testa Decl. ¶ 3.) Until May 4, 2010, call center employees clocked in and out by swiping their identification badge through the wall clock mounted at the entrance to the call center. (Id. ¶ 4.) The time of the swipe was recorded in Kronos as their clock-in time. (Id.) Effective May 4, 2010, hourly, non-exempt employees at the call center stopped using wall clocks and began clocking in and out through a system known as Kronos Connect. (Id. ¶ 5.) The process integrated the Kronos timekeeping system with the Avaya soft-phone system that call center employees use to handle customer phone calls. (Id. ¶ 5.) When a call center employee logs into Avaya, he is automatically clocked in to Kronos and when an employee logs out of Avaya, he is automatically clocked out of Kronos. (Id.) The integration of the system helps to prevent off the clock work as it makes it impossible for employees to take phone calls without being clocked in to Kronos. (Id.)

Corbin testified that he clocked-in by swiping his card using a wall clock until sometime in 2010. (Dkt. No. 81-6, Ozmer Decl., Ex. B, Corbin Depo. at 63:19-64:11; 68:5-69:5.) Waine-Golston did not start employment with Defendant until after the implementation of Avaya/Kronos. The first amended complaint alleges violations based on the Avaya/Kronos time records and not based on clocking-in through swiping badges through a wall clock. (Dkt. No. 6.) Plaintiffs do not dispute this issue. The Court concludes that Defendant has demonstrated an absence of a genuine issue of material fact as to any claims before May 4, 2010. Accordingly, the Court GRANTS Defendant's motion for summary judgment as to any claims to recover for allegations prior to May 4, 2010.

A. Requirement to Arrive Fifteen Minutes Early to Load Programs Before Clocking In

In the first amended complaint, Plaintiffs contend that they are required to arrive fifteen minutes before their scheduled start shift to load all computer programs needed to perform their jobs prior to clocking in through Avaya/Kronos. (Dkt. No. 6, FAC ¶ 55.) Defendant argues there is no genuine issue of material fact that Plaintiffs were required to arrive fifteen minutes early to load programs before clocking in. Plaintiffs do not oppose this argument.

Plaintiff Corbin testified that there was no rule requiring employees to arrive early. (Dkt. No. 81-6, Ozmer Decl., Ex. B, Corbin Depo. at 79:4-14.) Waine-Golston also testified that he was not required to be at work early. (Id., Ex. A, Waine-Golston Depo. at 163:21-164:8.) Based on these statements, Defendant has demonstrated an absence of a genuine issue of material fact. Accordingly, the Court GRANTS Defendant's motion for summary judgment on the FLSA claim as to the alleged requirement that Plaintiffs ...


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