Argento et al v. Sylvania Lighting Services Corporation

Filing 211

ORDER granting 178 Motion for Summary Judgment as to the claims alleged by plaintiffs Clifton Anthony, Hector Daza-Frias, Juan Forrellat, and Craig Zuchelkowski. Signed by Judge H Russel Holland on 9/1/15.(KGM)

WO

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA

RONALD ARGENTO, et al,

)
)
Plaintiffs,
)
)
vs.
)
)
SYLVANIA LIGHTING SERVICES CORP.,
)
)
Defendant.
)
__________________________________________)

No. 2:13-cv-0351-HRH

ORDER
Motion for Summary Judgment as to Claims Alleged by
Plaintiffs Clifton Anthony, Hector Daza-Frias, Juan Forrellat. and Craig Zuchelkowski
Defendant moves for summary judgment on the claims alleged by plaintiffs Clifton
Anthony, Hector Daza-Frias, Juan Forrellat, and Craig Zuchelkowski.1 This motion is
opposed.2 Oral argument was requested by defendants. However, the issues before the
court are largely legal in nature and have been well researched and briefed. Oral argument
would not be helpful.3

1

Docket No. 178.

2

Docket No. 188.

3

A district court may decide a motion for summary judgment “without oral argument
(continued...)
-1-

Facts
Plaintiffs Clifton Anthony, Hector Daza-Frias, Juan Forrellat, and Craig
Zuchelkowski4 worked for defendant Sylvania Lighting Services Corporation on a lighting
service project for the Clark County School District (CCSD) in Nevada. The CCSD project
began in July 2011 and ended in January of 2012. Plaintiffs allege that they worked more
than 40 hours per week while working on the CCSD project but that they were only paid
for 40 hours of work per week no matter how many hours they actually worked.
On February 24, 2012, plaintiffs filed a complaint against defendant for unpaid
overtime with the Nevada Labor Commission. The claims were referred to CCSD for
investigation, which made a series of determinations, to which plaintiffs were allowed to
object.5 A pre-hearing conference was held in March 2013, after which discovery was taken,
and then a Final Hearing was held on January 22, 2014.6 On May 5, 2014, a Final Order was

3

(...continued)
if the parties can submit their papers to the court.” Partridge v. Reich, 141 F.3d 920, 926 (9th
Cir. 1998).
4

Any reference to “plaintiffs” herein is limited to these four plaintiffs.

5

Final Order at 1, Exhibit 1, Defendant’s Request for Judicial Notice [etc.], Docket No.
178-2. Defendant requests that the court take judicial notice of the final order of the Nevada
Labor Commission. Plaintiffs do not oppose the court taking judicial notice of the Final
Order. See Plaintiffs’ Response [etc.] at 1, Docket No. 188. The court will take judicial notice
of the Final Order.
6

Final Order at 1, Exhibit 1, Defendant’s Request for Judicial Notice [etc.], Docket No.
(continued...)
-2-

filed. The ALJ determined that plaintiffs were due overtime that they had not been paid.7
Zuchelkowski was awarded $12,041.87 in back overtime wages; Anthony was awarded
$10,292.16; Diaz-Frias was awarded $5,978.90; and Forrellat was awarded $6,119.52.8 The
ALJ declined to assess any forfeitures against defendant, which are available under Nevada
law “against a contractor where the worker is not paid the applicable prevailing wage rate
for work performed on a prevailing wage project.”9 The ALJ declined to assess any
forfeitures because they would have been retained by CCSD and the ALJ felt that such an
assessment would be a windfall for CCSD “given [its] failure to meet [its] statutory
responsibilities under NRS 338.070.”10 The ALJ also declined to assess any administrative
fines or penalties against defendant, even though plaintiffs’ counsel argued that “such fines
should be assessed because Sylvania took this matter to hearing thereby costing each of the
parties involved thousands of dollars in costs.”11 Because the determinations that CCSD

6

(...continued)

7

Id. at 8-9.

8

Id. at 13.

9

Id. at 10.

178-2.

10

Id.

11

Id.
-3-

made after its investigation favored defendant, the ALJ concluded that “[p]enalties will not
be assessed against Sylvania simply because they elected to accept CCSD’s findings.”12
Although plaintiffs could have sought judicial review of the Final Order, no appeal
was taken. Rather, plaintiffs signed release forms “in order to receive payment of the
award....”13 The release provided that plaintiffs were discharging the “State of Nevada, the
Department of Business & Industry, and the Office of the Labor Commissioner, ... and all
other state and local agencies” from any claims “arising out of, or by reason of, the
investigation of the allegations raised in this matter and other matters relating thereto.”14
Plaintiffs “waive[d] all rights to file any additional such claims, actions, etc, relating to such
wage claim[s].”15
While the Nevada administrative proceedings were ongoing, this action was
commenced. On December 20, 2013, plaintiffs filed an amended complaint in which they
assert a single FLSA overtime claim. Plaintiffs allege that “they worked more than forty

12

Id.

13

Declaration of Plaintiff Clifton Anthony at ¶ 2, Exhibit A; Declaration of Plaintiff
Craig Zuchelkowski at ¶ 3, Exhibit B; Declaration of Plaintiff Hector Daza-Frias at ¶ 2,
Exhibit C; and Forrellat Release at 1, Exhibit D; Plaintiffs’ Response [etc.], Docket No. 188.
14

Forrellat Release at 1, Exhibit D, Plaintiffs’ Response [etc.], Docket No. 188.

15

Id.
-4-

hours in a workweek” and that defendant failed to pay them overtime.16 More specifically,
plaintiffs allege that “[t]hey worked an average of ten (10) to twelve (12) hours per
workday.”17 Although not specifically alleged, these overtime claims appear to be based on
pre- and post-shift work. And, plaintiffs Anthony and Zuchelkowski allege that from late
August or early September 2011, “they worked between eleven (11) to fourteen (14) hours
per day” because they became “designated drivers on the CCSD Project....”18 Plaintiffs also
generally alleged that they were required to work during their unpaid meals breaks at
times.19 Plaintiffs seek the overtime they contend they are due and liquidated damages in
an amount equal to their unpaid overtime.
Defendant now moves for summary judgment on plaintiffs’ FLSA claims on the
grounds that these claims are barred by res judicata because of the Final Order in the
Nevada administrative proceedings. Defendant contends that allowing plaintiffs to pursue
their FLSA claims could result in plaintiffs obtaining a double recovery.

16

First Amended Complaint at 2, ¶ 1, Docket No. 39.

17

Id. at 9, ¶ 67.

18

Id. at ¶ 68.

19

Id. at 10, ¶ 72. There are also some allegations in the amended complaint of
employees not being paid for travel time, but these plaintiffs’ FLSA overtime claims are not
based on allegations of unpaid travel time.
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Discussion
Summary judgment is appropriate when there are no genuine issues of material fact
and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The
initial burden is on the moving party to show that there is an absence of genuine issues of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the moving party meets
its initial burden, then the non-moving party must set forth specific facts showing that there
is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). In
deciding a motion for summary judgment, the court views the evidence of the non-movant
in the light most favorable to that party, and all justifiable inferences are also to be drawn
in its favor. Id. at 255. “[T]he court’s ultimate inquiry is to determine whether the ‘specific
facts’ set forth by the nonmoving party, coupled with undisputed background or contextual
facts, are such that a rational or reasonable jury might return a verdict in its favor based on
that evidence.” T.W. Elec. Service, Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 631
(9th Cir. 1987).
“The concept of res judicata embraces two doctrines, claim preclusion and issue
preclusion (or collateral estoppel), that bar, respectively, a subsequent action or the
subsequent litigation of a particular issue because of the adjudication of a prior action.
McClain v. Apodaca, 793 F.2d 1031, 1033 (9th Cir. 1986) (footnote omitted).

Claim

preclusion treats a judgment, once rendered, as the full measure of relief to be accorded

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between the same parties on the same claim or cause of action.” Id. (footnote and citation
omitted).
The threshold issue here is whether an unreviewed order from a state administrative
agency or commission can be given preclusive effect in a FLSA case. “Title 28 U.S.C. § 1738
requires that [courts] give the same preclusive effect to state court judgments as they would
be given in the state in which they were rendered.” Miller v. Cnty. of Santa Cruz, 39 F.3d
1030, 1032 (9th Cir. 1994). However, “Section 1738 does not govern cases involving
unreviewed decisions of a state administrative hearing board or commission.”

Id.

“Nonetheless, as a matter of federal common law, federal courts give preclusive effect to the
findings of state administrative tribunals in subsequent actions under § 1983.” Id. However,
federal courts do not give unreviewed administrative determinations preclusive effect for
Title VII claims. Univ. of Tennessee v. Elliott, 478 U.S. 788, 796 (1986). But, this is not a §
1983 action, nor is it a Title VII case. This case involves only FLSA claims, and the Ninth
Circuit has never considered whether preclusive effect should be given to unreviewed
decisions of a state administrative commission or agency in a subsequent FLSA case.
There are cases from other jurisdictions that have considered the question of whether
an unreviewed decision of a state administrative agency or commission should be given
preclusive effect in a subsequent FLSA case. In Akwesi v. Uptown Lube & C/W, Inc., No.
07 Civ. 335(NRB), 2007 WL 4326732, at *1 (S.D.N.Y. Dec. 3, 2007), the plaintiffs filed a

-7-

complaint on June 14, 2005 with the New York State Department of Labor “claiming that
Uptown Lube failed to pay its employees proper overtime wages.” The Department of
Labor issued a Final Report of its investigation on March 10, 2006, in which it “determined
that Uptown Lube had paid overtime’, but had ‘failed to pay spread of hours for the period
10/03-11/05.’” Id. “‘Spread of hours’ is a species of overtime payment required by New
York state labor regulations, but not by federal law.” Id. Basically, it requires that “[i]n
addition to overtime at one and one half times the regular rate, an employer must pay an
employee one extra hour’s worth of wages for every day the employee’s workday extends
beyond ten hours.” Id. The Department of Labor awarded the plaintiffs back overtime pay
and Uptown Lube paid each plaintiff the back “spread of hours” overtime pay he or she was
due. Id. at *2. On January 16, 2007, the plaintiffs filed a complaint in federal court against
Uptown Lube, alleging a FLSA overtime claim and other state law claims. Id. Uptown
Lube moved to dismiss the plaintiffs’ complaint. Id. The court rejected the “defendant’s
first argument ... that the complaint should be dismissed for lack of subject matter
jurisdiction, under Fed.R.Civ.P. 12(b)(1), because any case or controversy has been rendered
moot by the NYS DOL findings and subsequent payments.” Id. at *3. The court found that
it did not
need [to] even address the question of whether the NYS DOL
findings-the judicially unreviewed findings of a state administrative agency-are entitled to preclusive effect in this Court, for
it is clear that Uptown Lube remained in business for a period
-8-

of time after the conclusion of the NYS DOL investigation, and
therefore this Court would retain jurisdiction over at least a
portion of plaintiffs’ claims even if we were to give preclusive
effect to the NYS DOL findings.
Id. However, the court did “note that it will be unlikely that defendant can assert preclusion
on the basis of the NYS DOL investigation. While unreviewed factual determinations of
state agencies may be given preclusive effect in federal court, this is not so in all circumstances, and appears to not be so in suits brought under the FLSA.” Id. (internal citation
omitted). The court also noted that “the broad remedial purpose underlying the FLSA
seems antithetical to common law doctrines of preclusion.” Id. at *3 n.12.
The Akwesi court cited to Solimino v. Astoria Federal Savings and Loan Association,
901 F.2d 1148 (2nd Cir. 1990), as the authority supporting the proposition that preclusive
effect should not be given to unreviewed state agency decisions in FLSA cases. Solimino
involved the question of whether preclusive effect should be given to an unreviewed state
agency decision in a subsequent ADEA case. Id. at 1149. The plaintiffs argued that the court
should look to Title VII cases for guidance and the defendant suggested that the court
should look to FLSA cases instead. The court observed that
assuming arguendo that we should look to the FLSA instead of
Title VII for guidance as to the preclusion issue in this ADEA
suit, Astoria fails to cite any part of the FLSA or its interpretive
caselaw that indicates Congress intended in the FLSA to give
preclusive effect to the judicially unreviewed fact-finding of a
state administrative agency.

-9-

Id. at 1152.
In Thakkar v. Balasuriya, Case No. H-09-0841, 2009 WL 2996727, at *1 (S.D. Tex. Sept.
9, 2009), the defendants argued that Thakkar’s FLSA claims were barred by an earlier
unreviewed state agency decision. The court “conclude[d] that Thakkar’s FLSA claims are
not exempt from common law preclusion and that the FLSA claims that Thakkar has
asserted in this action are barred by collateral estoppel (issue preclusion).” Id. at *4. The
court explained that
Thakkar has failed ... to show that Congress intended the
FLSA’s administrative scheme to exempt FLSA claims from
common law principles of preclusion. Absent a showing of
Congressional intent to the contrary, the court concludes that
the FLSA claims at issue in this case are not exempt from
common law principles of preclusion.
Id. at *5.
Similarly, the court in Jones v. Hamic, 875 F. Supp. 2d 1334, 1349 (M.D. Ala. 2012),
concluded “that unreviewed state agency findings can be given collateral estoppel effect in
a FLSA suit.” The court explained:
In Elliott, the Supreme Court implied strongly that there exists
a presumption in favor of preclusion, and that the party
challenging the preclusive effect of an unreviewed state agency
decision bears the heavy burden of showing that Congress
intended to rebut the presumption. Indeed, Congress knows
about federal preclusion law when it legislates, and absent a
strong showing that it intended to override firmly entrenched
preclusion law by enacting FLSA, this Court will give the
ADIR’s findings collateral estoppel effect to the extent that an
-10-

Alabama court would. Doing so furthers the principles of
federalism, comity, efficiency, and repose underlying the
collateral estoppel doctrine. Here, Jones has failed to offer up
an argument about whether Congress intended FLSA to
override federal preclusion law.
Id. (internal citations omitted).
Here, plaintiffs argue that preclusive effect to unreviewed state agency decisions
should not be given in FLSA cases because FLSA is a remedial statute. See Lambert v.
Ackerley, 180 F.3d 997, 1003 (9th Cir. 1999) (“the FLSA is a remedial statute”). Plaintiffs also
suggest that the Ninth Circuit recognizes similarities between Title VII, the ADEA, and the
FLSA, implying that because preclusive effect is not given for Title VII and ADEA claims,
it then follows that preclusive effect should not be given to unreviewed decisions by state
agencies in FLSA cases. Plaintiffs also point out that “[w]hile the Ninth Circuit has not
specifically addressed the question of whether FLSA claims may only be settled and
resolved in two ways, district courts in the Ninth Circuit have followed Lynn’s Food Stores.”
McKeen v. Chaplin v. Franklin American Mortg. Co., Case No. C 10–5243 SBA, 2012 WL
6629608, at *2 n.3 (N.D. Cal. Dec. 19, 2012). In Lynn’s Food Stores, the court stated:
There are only two ways in which back wage claims arising
under the FLSA can be settled or compromised by employees.
First, under section 216(c), the Secretary of Labor is authorized
to supervise payment to employees of unpaid wages owed to
them. An employee who accepts such a payment supervised by
the Secretary thereby waives his right to bring suit for both the
unpaid wages and for liquidated damages, provided the
employer pays in full the back wages.
-11-

The only other route for compromise of FLSA claims is provided in the context of suits brought directly by employees
against their employer under section 216(b) to recover back
wages for FLSA violations.
Lynn’s Food Stores, Inc. v. United States ex rel. U.S. Dep’t of Labor, 679 F.2d 1350, 1352-53
(11th Cir. 1982) (footnote omitted). Plaintiffs argue that because there are only two ways in
which to resolve a FLSA claim, either through the Department of Labor or through a lawsuit
brought under Section 216(b), that means that unreviewed decisions of a state agency should
not be given preclusive effect. Thus, plaintiffs urge the court to follow Akwesi and Solimino
and conclude that preclusive effect should not be given to unreviewed decisions of a state
agency in FLSA cases.
The court finds Akwesi unpersuasive. As for Solimino, all the court stated there was
that the defendant had not pointed to anything that suggested that Congress intended that
unreviewed state court decisions would have preclusive effect as to FLSA claims. But, the
contrary is true as well. There is nothing in the FLSA that indicates that Congress did not
intend that the usual presumption of preclusion should apply. The fact that the FLSA is a
remedial statute does not mean that the usual presumption of preclusion should not apply.
As for plaintiffs’ reliance as Lynn’s Foods, that case concerned the ways in which FLSA
wage claims could be settled and did not deal with the question of whether preclusive effect
should be given to unreviewed decisions of a state agency or commission.

-12-

As to that question, the court finds Gorney v. Arizona Board of Regents, 43 F. Supp.
3d 946, 1204 (D. Ariz. 2014), persuasive. There, the plaintiff alleged that he had been
wrongfully terminated from the University of Arizona. Id. at 949. The plaintiff requested
and was granted a post-termination hearing. Id. at 950. The review panel issued a Hearing
Decision upholding the plaintiff’s termination, which was accepted by the University’s
Senior Vice-President and affirmed on reconsideration. Id. The plaintiff was advised that
he could appeal the termination decision to the Arizona Superior Court, but he did not take
such an appeal. Id. at 950-51. Instead, he filed suit in federal district court, asserting, among
other claims, a FLSA overtime claim and a FLSA retaliation claim. Id. at 949-50.

The

defendants moved to dismiss the plaintiff’s First Amended Complaint, “arguing, among
other things, that [the p]laintiff failed to appeal from the University’s decision discharging
him from employment by filing an action in Superior Court under the Administrative
Review Act, and that this failure precludes him from filing the claims raised in the FAC.”
Id. at 950 (internal citations omitted). The court considered whether claim preclusion could
be applied in this situation and concluded that it could under the criteria set forth in United
States v. Utah Construction & Mining Co., 384 U.S. 394, 422 (1966).20 Id. at 953-55.

20

The Ninth Circuit has “held that the federal common law rules of preclusion
described in Elliott extend to state administrative adjudications of legal as well as factual
issues, even if unreviewed, so long as the state proceeding satisfies the requirements of
fairness outlined in Utah Construction, 384 U.S. at 422[.]” Guild Wineries and Distilleries
v. Whitehall Co., 853 F.2d 755, 758 (9th Cir. 1988).
-13-

“The fairness requirements of Utah Construction are: (1) that the administrative
agency act in a judicial capacity, (2) that the agency resolve disputed issues of fact properly
before it, and (3) that the parties have an adequate opportunity to litigate.” Miller, 39 F.3d
at 1033. Here, the fairness requirements are plainly met.
The Nevada Labor Commission ALJ was acting in a judicial capacity. “[O]ne of the
factors indicating that the administrative agency had acted in the ‘judicial capacity’ required
by Utah Construction [is] that the [plaintiff] had both the right to seek a rehearing before the
agency and the right to petition for review in superior court.” Wehrli v. County of Orange,
175 F.3d 692, 695 (9th Cir. 1999) (citation omitted). Plaintiffs had such rights. In addition,
the ALJ heard motions, conducted a hearing, and awarded plaintiffs a monetary judgment,
all of which indicates that the ALJ was acting in a judicial capacity. The ALJ also resolved
issues of fact properly before him. And, plaintiffs had an adequate opportunity to litigate
their overtime claims in the Nevada proceedings. They engaged in motion practice,
participated in evidentiary hearings, were represented by counsel, and introduced witness
testimony.
Because the fairness requirements of Utah Construction are met, the court concludes
that preclusive effect can be given an unreviewed decision by a state administrative
commission or agency in a FLSA case. The next question then is whether the Final Order
should be given preclusive effect.

-14-

To determine what the preclusive effect of the Final Order would be, the court looks
to Nevada law. Olson v. Morris, 188 F.3d 1083, 1086 (9th Cir. 1999). Nevada has “adopted
the doctrine of administrative res judicata....” Campbell v. Nev., Dep’t of Taxation, 827 P.2d
833, 835 (Nev. 1992). For res judicata to apply the 1) “the issue decided in the prior
adjudication” must be “identical to the issue presented in the action in question;” 2) there
must be “a final judgment on the merits;” and 3) “the party against whom the judgment is
asserted” must have been “a party, or in privity with a party to the prior adjudication.”
Britton v. City of N. Las Vegas, 799 P.2d 568, 570 (Nev. 1990). These three factors apply to
both issue preclusion and claim preclusion. Five Star Capital Corp. v. Ruby, 194 P.3d 709,
713 (Nev. 2008). Issue preclusion requires consideration of a fourth factor as well, which is
whether “the issue was actually and necessarily litigated.” Id. Under Nevada law, “claim
preclusion may apply in a suit to preclude both claims that were or could have been raised
in a prior suit, while issue preclusion would not preclude those issues not raised in the prior
suit.” Id. at 714.
identical claim or issue
“For the purposes of defining a ‘claim’ under Nevada law, ‘[t]he authorities agree
that when the same evidence supports both the present and the former cause of action, the
two causes of action are identical.’” Holcombe v. Hosmer, 477 F.3d 1094, 1098 (9th Cir. 2007)
(quoting Round Hill Gen. Improvement Dist. v. B–Neva, Inc., 606 P.2d 176, 178 (Nev. 1980)).

-15-

In addition, if the claims in both cases are “based on the same set of facts and circumstances”, then the claims are identical. Five Star Capital Corp., 194 P.3d at 714. Claim
preclusion applies to all grounds of recovery that were or could have been brought in the
first case. Holcombe, 477 F.3d at 1098.
Here, the same evidence required to prove plaintiffs’ overtime claims under Nevada
law would be used to prove plaintiffs’ FLSA overtime claims. In addition, this case and the
Nevada state administrative proceedings both involve the same set of facts and the claims
in both cases are based on the same grounds of recovery, namely overtime. It does not
matter that plaintiffs could not have brought their FLSA claims in the Nevada administrative proceedings. As the court noted in Holcombe, “[a]lthough Holcombe argues that she
was not able to assert First Amendment retaliation at her administration hearing, that is not
the test for a claim under Nevada law.” Id. at 1099. Rather, the test is whether the claims
involve the same evidence or facts. Id. at 1098. Plaintiffs’ state-law overtime claims and
their FLSA claims involve the same facts and circumstances, and thus these claims are
identical.
Defendant also argues that plaintiffs’ claim for FLSA liquidated damages is identical
to plaintiffs’ request for administrative penalties under Nevada law because each claim
involves the same evidence and facts. Plaintiffs argue, however, that their claim for
liquidated damages is not identical to their claim for administrative penalties under Nevada

-16-

law because liquidated damages under the FLSA are not penalties. See Local 246 Utility
Workers Union of Amer. v. S. Calif. Edison Co., 83 F.3d 292, 297 (9th Cir. 1996) (FLSA
“liquidated damages represent compensation, and not a penalty”). Moreover, plaintiffs
point out that liquidated damages are mandatory unless the court makes a determination
that the employer objectively and subjectively acted in good faith. Id. Plaintiffs argue that
there is no indication in the Final Order that the ALJ made any determination regarding
defendant’s subjective or objective good faith, although the ALJ did suggest that defendant’s
conduct was intentional or in reckless disregard of plaintiffs’ rights when he observed that
[a]n employer cannot absolve themselves of their responsibility
to pay overtime by saying at the onset of a project that it will
not be granted, then simply looking the other way as they reap
the benefits of the hours of additional, unpaid work performed.
For CCSD and Sylvania to ignore this reality defies logic.[21]
Plaintiffs argue that if the ALJ had considered the applicable law under the FLSA regarding
liquidated damages, the Final Order strongly suggests that he would have had no choice but
to award liquidated damages.
The problem with the parties’ liquidated damages’ arguments is that FLSA liquidated
damages are not a “claim”, but rather a remedy. 29 U.S.C. § 216(b). If plaintiffs’ FLSA
overtime claims are precluded, the court cannot separately consider whether any of
plaintiffs’ possible remedies under the FLSA are also precluded. If plaintiffs are barred from
21

Final Order at 9, Exhibit 1. Defendant’s Request for Judicial Notice [etc.], Docket No.

178-2.
-17-

pursuing their FLSA claims, then the issue of what damages or remedies they might be
entitled to under the FLSA is not before the court.
final judgment
Although an order by an ALJ may be considered a final judgment on the merits,
Roberts v. Las Vegas Valley Water Dist., 849 F. Supp. 1393, 1400 (D. Nev. 1994), plaintiffs
argue that there was no final judgment on the merits because there was no judicial review
of the Final Order. Plaintiffs contend that they entered into an agreement in which they
waived their rights to appeal in order to receive the monetary award provided in the Final
Order, but that they did so with the understanding that this would not in any way affect
their right to pursue their FLSA claims. Plaintiffs have all averred that it was their
understanding that waiving their right to appeal would not have any affect on their ability
to pursue their FLSA claims in this case.22
The Final Order was a final judgment on the merits. As for plaintiffs’ contention that
they did not intend to give up their right to pursue their FLSA claims, plaintiffs expressly
“waiv[ed] all rights to to file any additional such claims, actions, etc. relating to such wage

22

Anthony Declaration at 2, ¶ 4, Exhibit A; Zuchelkowski Declaration at 2, ¶ 4, Exhibit
B; Daza-Frias Declaration at 2, ¶ 4, Exhibit C; Forrellat Release at 1, Exhibit D; Plaintiffs’
Response [etc.], Docket No. 188.
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claim[s].”23 Plainly plaintiffs gave up not only the right to seek review of the administrative
decision but also the right to file an action such as this one before the court.
same parties
There is no dispute that plaintiffs and defendant were parties to the Nevada
administrative hearing.
In sum, plaintiffs’ FLSA overtime claims are barred by claim preclusion.24 Plaintiffs’
FLSA claims are identical to plaintiffs’ state-law overtime claims. The Final Order is a final
judgment. And, both plaintiffs and defendant were parties to the Nevada administrative
proceedings. Because plaintiffs’ FLSA claims are barred by claim preclusion, the issue of
whether they are entitled to any damages under the FLSA, such as liquidated damages, is
also barred.
As a final matter, defendant contends that plaintiffs have not brought any claims for
unpaid meal times. “FLSA does not require compensation for an employee’s lunch period,
but an employee cannot be docked for lunch breaks during which he is required to continue
with any duties related to his work.” Busk v. Integrity Staffing Solutions, Inc., 713 F.3d 525,
531 (9th Cir. 2013) (citation omitted), overuled on other grounds by, Integrity Staffing

23

Forrellat Release at 1, Exhibit D, Plaintiffs’ Response [etc.], Docket No. 188
(emphasis added).
24

Because claim preclusion applies here, the court need not consider defendant’s
argument that the issue of whether plaintiffs are entitled to overtime was actually and
necessarily litigated in the Nevada administrative proceedings.
-19-

Solutions, Inc. v. Busk, 135 S. Ct. 513 (2014). Defendant contends that it provided meal
breaks to plaintiffs without requiring them to perform any substantial duties during these
breaks.
Plaintiffs do not dispute that they generally were given a 30-minute lunch break each
day. But, they contend that there is also evidence that sometimes their lunch breaks were
interrupted with work duties. Zuchelkowski testified that he was sometimes “told to go and
pick something up, drop it off at the schoolyard that is over by The Palms hotel” during his
lunch break and that this may have happened 3-4 or maybe more times.25 Daza-Frias
testified that he did not take a full 30-minute lunch every day because sometimes he was
told “to do something else” or he was “pulled” back to work before his lunch time ended.26
Clifton testified that he was not always provided with a 30-minute lunch break.27 Plaintiffs
argue that this testimony is sufficient to create genuine issues of material fact as to whether
there were times that they worked through part of their lunch break.
“As a general rule, employees cannot recover for otherwise compensable time if it is
de minimis.” Lindow v. United States, 738 F.2d 1057, 1062 (9th Cir. 1984). “An important

25

Deposition of Craig Zuchelkowski at 44:24-46:15, Exhibit E, Plaintiffs’ Response
[etc.], Docket No. 188.
26

Deposition of Hector Daza-Frias at 42:10-45:21, Exhibit F, Plaintiffs’ Response [etc.],
Docket No. 188.
27

Deposition of Anthony Clifton at 55:7-10, Exhibit G, Plaintiffs’ Response [etc.],
Docket No. 188.
-20-

factor in determining whether a claim is de minimis is the amount of daily time spent on the
additional work.” Id. “There is no precise amount of time that may be denied compensation as de minimis. No rigid rule can be applied with mathematical certainty.” Id. “Rather,
common sense must be applied to the facts of each case.” Id.
The evidence suggests that whatever time might be involved here was de minimis.
But, more importantly, if plaintiffs had overtime claims based on unpaid meal breaks, they
could have raised those claims in the state administrative proceedings, rather than only
claiming overtime based on pre- and post-shift work. In addition, in return for the
immediate payment of the Nevada award, plaintiffs agreed to not file any further wage
actions. Any overtime claims plaintiffs may have had based on unpaid meal breaks are
barred by claim preclusion.
Conclusion
Defendant’s motion for summary judgment28 as to the claims alleged by plaintiffs
Clifton Anthony, Hector Daza-Frias, Juan Forrellat, and Craig Zuchelkowski is granted.
DATED at Anchorage, Alaska, this 1st day of September, 2015.
/s/ H. Russel Holland
United States District Judge

28

Docket No. 178.
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