United States District Court, S.D. California
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.
ORDER DENYING MOTION TO DISMISS FOR FAILURE TO STATE
A CLAIM UPON WHICH RELIEF MAY BE GRANTED [DOC. NO.
MARILYN L. HUFF, District Judge
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.
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.
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.)
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.)
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)).
The Definition of Employer Under the FLSA
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
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
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), 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 ...