Waddell v. Phoenix, City of

Filing 40

ORDER GRANTING defendant's motion for summary judgment (doc. 23 ) and DENYING plaintiff's cross-motion for summary judgment (doc. 27 ). The clerk shall enter final judgment in favor of defendant and against plaintiff. Signed by Senior Judge Frederick J Martone on 3/13/2013.(KMG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Teresa Waddell,
Plaintiff,

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vs.

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City of Phoenix,
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Defendant.
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No. CV 11-02092-PHX-FJM
ORDER

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The court has before it defendant's motion for summary judgment (doc. 23),

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defendant's statement of facts in support ("DSOF") (doc. 24), plaintiff's response and cross-

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motion for summary judgment (doc. 27), plaintiff's statement of facts ("PSOF") (doc. 28),

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defendant's reply and response to plaintiff's cross-motion (doc. 31), defendant's controverting

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statement of facts ("DSOF2") (doc. 32), and plaintiff's reply (doc. 33).

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I

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On a motion for summary judgment we accept undisputed facts as true and review

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disputed facts in the light most favorable to the non-moving party. Anthoine v. N. Cent.

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Cntys. Consortium, 605 F.3d 740, 745 (9th Cir. 2010). We may consider any fact asserted

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by one party that is not addressed by the opposing party as undisputed for the purposes of

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the motion. Fed. R. Civ. P. 56(e)(2). Similarly, any disputed fact that a party does not

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support with admissible evidence is insufficient to defeat summary judgment. Taylor v. List,

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880 F.2d 1040, 1045 (9th Cir. 1989). Here, although plaintiff filed a statement of facts in

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support of her response and cross-motion for summary judgment, she did not controvert

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defendant's statement of facts, as required by LRCiv 56.1(b). Accordingly, we accept

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defendant's statement of facts as true.

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Plaintiff began working for the City of Phoenix Police Department Mounted Patrol

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Unit (“MPU”) in 1997. The MPU was part of the Downtown Operations Unit (“DOU”), a

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specialized unit within the Homeland Defense Bureau which was responsible for delivering

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police service on horseback to the downtown area. Plaintiff became the primary rider and

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trainer of a horse named Magic. DOU guidelines required MPU officers to feed and groom

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their assigned horses before transporting them to the patrol destination where they would

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provide police services and functions. Plaintiff’s work week consisted of four ten hour shifts,

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during which she was allotted time to feed, groom, or otherwise care for Magic. During

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plaintiff's days off and during the hours she was not working, police assistants would care

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for and feed Magic, unless there was an emergency. Between 1998 and 2008, plaintiff only

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submitted four overtime slips in connection with grooming and feeding Magic on days or

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times that she was not regularly scheduled to work.

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In November 2008, when it was announced that Magic was to be retired as a Phoenix

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Police Department patrol horse, plaintiff advised that she wanted to adopt him. Although the

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adoption of Magic was not officially approved until June 2010, plaintiff voluntarily took

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possession of Magic in December 2008. Thereafter, Magic stopped performing any police

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related function or activity. At no time between December 2008, when plaintiff took

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possession of Magic, and June 2010, when his adoption was approved by the City Council,

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did plaintiff ask that the City of Phoenix (the "City") take him back, nor did she request

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compensation or overtime pay for his care and grooming.

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In October 2011, plaintiff filed a complaint alleging that under the Fair Labor

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Standards Act ("FLSA") she is entitled to overtime pay because between November 1997 and

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June 2010 she was required to groom and care for Magic at times outside of her assigned

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forty hour work week. Complaint at ¶ 43. Defendant moves for summary judgment, arguing

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that plaintiff has failed to demonstrate that the activity for which she requests overtime is
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compensable under the FLSA.

Defendant contends that

plaintiff has already been

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compensated for any work she performed outside of her forty hour work week between

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November 1997 and October 2008. Defendant further argues that plaintiff is not entitled to

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overtime compensation for the care and maintenance of Magic after November 2008, when

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he was retired. Plaintiff cross-moves for summary judgment arguing that the City has a duty

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to provide overtime compensation to plaintiff because the activity for which she requests

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overtime is compensable under the FLSA, and the City knew or should have known that

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plaintiff was working overtime.
II

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Summary judgment is appropriate if the evidence, viewed in the light most favorable

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to the nonmoving party, shows "that there is no genuine issue as to any material fact and that

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the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Summary

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judgment is also appropriate against a party who "fails to make a showing sufficient to

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establish the existence of an element essential to that party's case, and on which that party

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will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct.

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2548, 2552 (1986).

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The FLSA, requires an employer to provide overtime pay to employees working more

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than forty hours in a work week. 29 U.S.C. § 207(a)(1). An activity constitutes "work," and

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is compensable under the FLSA if it involves "physical or mental exertion (whether

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burdensome or not) controlled or required by the employer and pursued necessarily and

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primarily for the benefit of the employer and his business." IBP, Inc. v. Alvarez, 546 U.S.

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21, 25, 126 S. Ct. 514, 519 (2005). An employee is entitled to be compensated for the

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"[p]eriods of time between the commencement of the employee's first principal activity and

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the completion of his last principal activity on any workday." 29 CFR § 790.6(a). The term

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"workday" is generally defined as "the period between the commencement and completion

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on the same workday of an employee’s principal activity or activities." 29 CFR § 790.6(b).

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A given activity constitutes a "principal activity," if it is "an integral and indispensable part

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of the principal activities for which covered workmen are employed." Steiner v. Mitchell,
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350 U.S. 247, 256, 76 S. Ct. 330, 335 (1956). "To be integral and dispensable an activity

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must be necessary to the principal work performed and done for the benefit of the employer."

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Alvarez v. IBP, Inc., 339 F.3d 894, 902-903 (9th Cir. 2003).

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Here, it is undisputed that between 1997 and October 2008, feeding and grooming

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Magic were part of plaintiff's principal activities. It is also undisputed that plaintiff’s

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workday consisted of a ten hour shift. Defendant argues that plaintiff is not entitled to

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overtime pay because she was given time to groom, feed, care for, and maintain Magic within

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her regularly scheduled workday. Plaintiff does not dispute that she was given time to groom

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and feed Magic, but she argues that often the allotted time was insufficient. During her

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deposition, however, plaintiff admitted that her shift began before any of the feeding and

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grooming, and that if there was not a holdover, she left the downtown area approximately one

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hour prior to the end of her shift to allow her time to transport and feed her assigned horse.

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DSOF, ex. 1 at pp. 25-26. Plaintiff also conceded that on her days off and during the hours

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she was not working, police assistants would care for and feed Magic, unless there was an

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emergency. Id. at p. 27. Moreover, plaintiff acknowledged that to the extent she was held

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over or worked on her days off, and that time was in excess of her forty hour work week, she

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submitted overtime slips and was paid overtime for that work. Id. at p. 27-29. Plaintiff has

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not provided any evidence showing that she performed work outside of her forty hour work

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week for which she has not been paid overtime. Accordingly, plaintiff cannot defeat

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defendant's motion for summary judgment on the issue that she has been compensated for

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overtime in connection with maintenance and care of Magic between November 1997 and

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October 2008. Taylor, 880 F.2d at 1045 (“A summary judgment motion cannot be defeated

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by relying solely on conclusory allegations unsupported by factual data.”). We conclude that

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plaintiff is not entitled to overtime pay pursuant to the FLSA during the period between 1997

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and October 2008, beyond that which she was already paid.

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It is also undisputed that Magic was "retired" and no longer an active police horse as

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of November 2008. Defendant argues that because Magic was no longer an active police

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horse after November 2008, plaintiff is not entitled to overtime compensation for the care and
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maintenance of Magic after that date. Plaintiff argues that her compensable activities

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continued until 2009. Plaintiff's Reply at 7. During plaintiff's deposition, however, she

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conceded that after she took possession of Magic in November 2008, she no longer

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performed police functions on him. DSOF, ex. 1 at 33-34. Plaintiff further acknowledged

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that after she took possession of Magic, caring for him did not constitute police services. Id.

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Because the time plaintiff spent caring for Magic after she took possession of him was not

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an activity controlled or required by the City of Phoenix Police Department and pursued

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necessarily and primarily for the benefit of the Police Department, it was not “work” as

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defined in the FLSA. Accordingly, plaintiff is not entitled to overtime compensation for time

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plaintiff spent caring for Magic after November 2008.

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Based on the foregoing, we conclude that the activities for which plaintiff seeks

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overtime are not compensable under the FLSA.1 Therefore, IT IS ORDERED GRANTING

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defendant's motion for summary judgment (doc. 23) and DENYING plaintiff's cross-motion

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for summary judgment (doc. 27). The clerk shall enter final judgment in favor of defendant

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and against plaintiff.

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DATED this 13th day of March, 2013.

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Because we conclude the activities are not compensable under the FLSA, we do not
reach the issue of whether the City had the requisite knowledge to establish a duty to pay
overtime to plaintiff under the FLSA.
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