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Alfaro v. City of San Diego

United States District Court, S.D. California

June 12, 2017

MARCUS ALFARO, an individual; DERRIN AUSTIN, an individual; and PIPER DENLINGER, an individual, Plaintiffs,
CITY OF SAN DIEGO, a California Municipal Corporation; and BRIAN FENNESSY, individually and in his official capacity as Chief of the San Diego Fire-Rescue Department, Defendants.


          MARILYN L. HUFF, District Judge

         On January 10, 2017, Plaintiffs filed a complaint against Defendants City of San Diego and Brian Fennessy, Chief of the San Diego Fire-Rescue Department (“SDFD”). (Doc. No. 1.) Plaintiffs assert two claims for relief under the Fair Labor Standards Act, 29 U.S.C. §§ 201-219 (“FLSA”). The first claim is for unpaid overtime wages and the second is for retaliation.

         On May 1, 2017, Defendants filed a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. No. 6.) Plaintiffs filed an opposition on May 25, 2017, and Defendants filed a reply on June 1, 2017. (Doc. Nos. 7, 8.) On June 2, 2017, pursuant to its discretion under Local Rule 7.1(d)(1), the Court determined that the motion was fit for resolution without oral argument and vacated the scheduled hearing. (Doc. No. 9.) For the reasons that follow, the Court denies the motion.


         According to the complaint, Plaintiffs are fire captains within SDFD, and they each previously held the position of emergency radio operator (“ERO”). (Doc. No. 1 at 3, ¶ 11.) While they were employed as EROs, Plaintiffs purportedly worked 56 hours per week and were not paid overtime. (Id. at 4, ¶¶ 18-19.) Plaintiffs contend that they are entitled to overtime pay for their work as EROs pursuant to the Ninth Circuit's published opinion, Haro v. City of Los Angeles, 745 F.3d 1249 (9th Cir. 2014). According to Plaintiffs, they complained about their missing overtime wages and were then dismissed from their ERO positions in retaliation for their complaints. (Doc. No. 1 at 5-6, ¶ 24.)

         The complaint states that Chief Fennessy has ultimate decision-making authority over SDFD personnel matters. (Id. at 2, ¶ 4.) According to Plaintiffs, the City of San Diego acted by and through its appointing authority for SDFD, Chief Fennessy, in failing and refusing to pay overtime. (Id. at 4-5, ¶ 20.) In opposition, Defendants request judicial notice of four exhibits: a memorandum of understanding (“MOU”) between the city and the firefighters' union and three ordinances setting compensation schedules for officers and employees of the city. (Doc. Nos. 6-2 to 6-6.) These exhibits purportedly establish that the city council sets rates of pay and quantity of hours for EROs. (Doc. No. 6-1 at 11-12.)


         I. Legal Standards

         A complaint must satisfy the pleading requirements of Federal Rule of Civil Procedure 8 to evade dismissal under a Rule 12(b)(6) motion. Landers v. Quality Commc'ns, Inc., 771 F.3d 638, 640-41 (9th Cir. 2014). Rule 8(a) requires “a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quotation marks and alteration notations omitted). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Hartmann v. Cal. Dept. of Corr. & Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-36 (3d ed. 2004)).

         II. Analysis

         A. The Definition of Employer Under the FLSA

         Defendants argue that Chief Fennessy is not a proper defendant in this action because he is not an “employer” as the term has been applied under the FLSA. (Doc. No. 6-1 at 10.) The FLSA defines “employer” to “include[] any person acting directly or indirectly in the interest of an employer in relation to an employee.” 29 U.S.C. § 203(d). The term “employer” is to be given an “expansive interpretation” in order to “effectuate the FLSA's broad remedial purposes.” Real v. Driscoll Strawberry Assocs., 603 F.2d 748, 754 (9th Cir. 1979). It is possible for two or more employers to jointly employ someone for purposes of the FLSA. 29 C.F.R. § 791.2; see, e.g., Falk v. Brennan, 414 U.S. 190, 195 (1973). Whether there is an employment relationship under the FLSA is tested by “‘economic reality' rather than ‘technical concepts.'” Goldberg v. Whitaker House Cooperative, Inc., 366 U.S. 28, 33 (1961).

         The Ninth Circuit has elaborated on the economic reality test, directing lower courts “to consider the totality of the circumstances.” Hale v. State of Ariz., 993 F.2d 1387, 1394 (9th Cir. 1993) (citing Bonnette v. California Health and Welfare Agency, 704 F.2d 1465, 1470 (9th Cir. 1983)). The totality of the circumstances include “whether the alleged employer has the power to hire and fire the employees, supervises and controls employee work schedules or conditions of employment, determines the rate and method of payment, and maintains employment records.” Id. “While these factors ‘provide a useful framework for analysis . . ., they are not etched in stone and will not be blindly applied.'” Id.

         Defendants cite an out-of-district summary judgment opinion to argue that Chief Fennessy cannot be an employer because he did not control the “purse strings.” (Doc. No. 6-1 at 12.) In other words, he purportedly did not set Plaintiffs' quantity of hours or rate of pay. (Id.) But the Chief's ability to control the purse strings cannot be the sole factor in determining whether he is an employer under the statute. The FLSA prescribes conduct for employers that involve other issues than overtime pay. For example, the statute mandates conduct for employers regarding child labor (29 U.S.C. § 212(c)), record-keeping (id. § 211(c)), retaliation (id. §§ 215(a)(3), 216[1]), and the Patient Protection and Affordable Care Act (id. §§ 218b, 218c). If the definition of employer was solely dependent on power over the purse strings, then many managers would not be liable under the FLSA for violations of these provisions. That outcome would thwart the “broad remedial purposes” of the FLSA. Real, 603 F.2d at 754. Indeed, these ...

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