Espinoza et al v. County of Fresno

Filing 156

MEMORANDUM, DECISION RE: Motion for Summary Judgment 90 142 , signed by Judge Oliver W. Wanger on 8/2/2011. (Kusamura, W)

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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1:07-cv-01145-OWW-SMS
JUAN ESPINOZA, et al.,

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MEMORANDUM DECISION RE:
MOTIONS FOR SUMMARY JUDGMENT
(Docs. 90, 142)

Plaintiffs,

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v.

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COUNTY OF FRESNO,
Defendant.

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I. INTRODUCTION.

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Plaintiffs proceed with this action against the County of

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Fresno

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(“FLSA”), 29 U.S.C. § 207 et seq. (Doc. 27).
On

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(“County”)

May

1,

pursuant

2009,

the

to

the

County

Fair

filed

Labor

a

Standards

motion

for

Act

summary

19

judgment. (Doc. 90). Plaintiffs filed opposition on May 20, 2009.

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(Doc. 100).

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the Ninth Circuit’s decision in Bamonte v. City of Mesa, 598 F.3d

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1217 (2010).

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2010.

On June 18, 2009, the court stayed this action pending

(Doc. 117).

The court lifted the stay on April 8,

(Doc. 123).

Plaintiffs filed a motion for summary judgment on January 3,

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2011.

(Doc. 142).

The County filed opposition on February 22,

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2011.

(Doc. 144).

Plaintiffs filed a reply on March 1, 2011.

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(Doc. 145).

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///
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On May 19, 2011, the parties submitted a joint statement

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setting forth their respective positions regarding Bamonte’s impact

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on this case.

(Doc. 151).
II. FACTUAL BACKGROUND.

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5

Plaintiffs are Fresno County Deputy Sheriffs that serve as

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Patrol Deputies and Courtroom Deputies. In connection with their

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duty assignments, Patrol Deputies and Courtroom Deputies wear

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“Class ‘B’ Uniforms” comprised of a long or short-sleeve shirt,

9

shoulder

patches

sewn

badge,

onto

the

nameplate,

sleeves,

rank

insignia

(if

belts,

and

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applicable),

trousers/skirts,

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footgear.

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Courtroom Deputies a duty belt to hold various safety gear and

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equipment.

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include a duty weapon, holster, handcuffs, handcuffs carrier,

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collapsible

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magazines, flashlight, radio, radio holder, chemical spray and

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holder, latex gloves, and glove holder.

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compensate deputies for the time it takes them to don and doff

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their uniforms and safety gear before and after their regularly

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scheduled shifts.

The County also issues Sheriff’s Patrol Deputies and

The safety gear and equipment worn on a duty belt

baton,

baton

holder,

ammunition,

two

ammunition

The County does not

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The County operates a “Take Home Patrol Vehicle Program”

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(“THPVP”), pursuant to which deputies are allowed to commute to and

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from their residences to their duty assignments in a patrol vehicle

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assigned to them.

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Participants in the THPVP are not compensated for the time spent

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commuting to and from their duty assignments or for time spent

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cleaning and maintaining their vehicles outside of on-duty time.

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///

Participation in the THPVP is voluntary.

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The County requires deputies to qualify their duty weapons on

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a quarterly basis. The County provides on-duty time to participate

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in weapons qualification. County policy provides that overtime may

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be approved for weapons qualification outside of on-duty time, but

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such

6

Plaintiffs

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required

8

policy.

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overtime

is

contend
off-duty

discouraged
they

are

as

on-duty

denied

qualification

time

overtime

is

provided.

compensation

notwithstanding

the

for

County’s

Courtroom Deputies are entitled to an unpaid meal period.

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There is no requirement that Courtroom Deputies remain in uniform

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during their meal break, however, if they remain in uniform, they

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are required to keep their radios on and may be called upon to

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perform regular employment duties.
III. LEGAL STANDARD.

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Summary

judgment/adjudication

is

appropriate

when

"the

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pleadings, the discovery and disclosure materials on file, and any

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affidavits show that there is no genuine issue as to any material

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fact and that the movant is entitled to judgment as a matter of

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law." Fed. R. Civ. P. 56(c). The movant "always bears the initial

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responsibility of informing the district court of the basis for its

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motion,

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depositions, answers to interrogatories, and admissions on file,

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together with the affidavits, if any, which it believes demonstrate

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the absence of a genuine issue of material fact." Celotex Corp. v.

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Catrett,

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omitted).

and

477

identifying

U.S.

317,

those

323

portions

(1986)

of

(internal

the

pleadings,

quotation

marks

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Where the movant will have the burden of proof on an issue at

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trial, it must "affirmatively demonstrate that no reasonable trier
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1

of fact could find other than for the moving party." Soremekun v.

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Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007).

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respect to an issue as to which the non-moving party will have the

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burden of proof, the movant "can prevail merely by pointing out

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that there is an absence of evidence to support the nonmoving

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party's case." Soremekun, 509 F.3d at 984.

With

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When a motion for summary judgment is properly made and

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supported, the non-movant cannot defeat the motion by resting upon

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the

allegations

or

denials

of

its

own

pleading,

rather

the

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"non-moving party must set forth, by affidavit or as otherwise

11

provided in Rule 56, 'specific facts showing that there is a

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genuine issue for trial.'" Soremekun, 509 F.3d at 984. (quoting

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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)). "A

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non-movant's bald assertions or a mere scintilla of evidence in his

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favor are both insufficient to withstand summary judgment." FTC v.

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Stefanchik, 559 F.3d 924, 929 (9th Cir. 2009). "[A] non-movant must

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show a genuine issue of material fact by presenting affirmative

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evidence from which a jury could find in his favor." Id. (emphasis

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in original). "[S]ummary judgment will not lie if [a] dispute about

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a material fact is 'genuine,' that is, if the evidence is such that

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a reasonable jury could return a verdict for the nonmoving party."

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Anderson, 477 U.S. at 248. In determining whether a genuine dispute

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exists, a district court does not make credibility determinations;

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rather, the "evidence of the non-movant is to be believed, and all

25

justifiable inferences are to be drawn in his favor." Id. at 255.

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///

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///

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IV. DISCUSSION.

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A. Donning and Doffing Claims
The FLSA requires employers to pay employees for all hours

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worked.

E.g., Bamonte v. City of Mesa, 598 F.3d 1217, 1220 (9th

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Cir. 2010).

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the FLSA defined the term “work” broadly as “physical or mental

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exertion (whether burdensome or not) controlled or required by the

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employer and pursued necessarily and primarily for the benefit of

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the employer and his business.”

Early Supreme Court cases interpreting the scope of

IBP, Inc. v. Alvarez, 546 U.S. 21,

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25 (2005) (quoting Tennessee Coal, Iron & R. Co. v. Muscoda Local

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No. 123, 321 U.S. 590, 598 (1944)).

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In 1945, Congress passed the Portal-to-Portal Act, amending

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the FLSA in order to provide remedies to employers faced with

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“wholly unexpected liabilities” arising out of the expansive reach

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of the FSLA that evolved from the Supreme Court’s jurisprudence.

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IBP, 546 U.S. at 26.

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in relevant part:

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Part III of the Portal-to-Portal Act provides

Relief from Certain Future Claims Under the Fair Labor
Standards Act of 1938 . . .

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(a) Activities not compensable. Except as provided in
subsection (b), no employer shall be subject to any
liability or punishment under the Fair Labor Standards
Act of 1938, as amended, . . . on account of the failure
of such employer to pay an employee minimum wages, or to
pay an employee overtime compensation, for or on account
of any of the following activities of such employee
engaged in on or after the date of the enactment of this
Act--

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(1) walking, riding, or traveling to and from the
actual place of performance of the principal activity or
activities which such employee is employed to perform,
and
(2) activities which are preliminary to or
postliminary to said principal activity or activities,

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which occur either prior to the time on any particular
workday at which such employee commences, or subsequent
to the time on any particular workday at which he ceases,
such principal activity or activities."

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29 U.S.C § 254 (2011).

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The Supreme Court first addressed the extent to which donning

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and doffing is compensable under the FSLA as amended by the Portal-

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to-Portal Act in Steiner v. Mitchell, 350 U.S. 247, 248 (1956). The

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High Court held that

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activities [] such as the donning and doffing of
specialized protective gear, that are "performed either
before or after the regular work shift, on or off the
production
line,
are
compensable
under
the
portal-to-portal provisions of the Fair Labor Standards
Act if those activities are an integral and indispensable
part of the principal activities for which covered
workmen are employed and are not specifically excluded by
Section 4(a)(1).”

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Id.

Any activity that is "integral and indispensable" to a

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"principal activity" is itself a "principal activity" under the

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Portal-to-Portal Act.

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"integral and indispensable to a principal activity" is “context-

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specific” inquiry.

IBP, 546 U.S. at 37. Whether an activity is

E.g., Bamonte, 598 F.3d at 1224.

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Pursuant to the law of the Ninth Circuit, determination of

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whether donning and doffing is compensable under the FSLA entails

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a three step analysis.

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address the threshold inquiry of whether the activity in question

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constitutes “work” within the meaning of the FLSA.

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court must determine whether the activity is contextually "integral

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and indispensable," i.e. "necessary to the principal work performed

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and done for the benefit of the employer."

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considers whether the activity is de minimis. Id. at 1224.

Id. at 1224-25.

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6

First, a court must

Id.

Id.

Second, a

Finally, the court

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In Bamonte, the Ninth Circuit assumed arguendo that a police

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officer’s

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constitutes “work” under the FLSA.

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Ninth Circuit concluded that “the specific activity” at issue in

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Bamonte–donning and doffing at the police station–was not “integral

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and indispensable” because the officers had the option of donning

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and doffing at home.

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reasoned that requiring donning and doffing to be performed at the

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employer’s premises in order to be compensable:

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donning

and

doffing

of

uniforms

and

598 F.3d at 1225.

Id. at 1220, 1230-31.

related

gear

However, the

The Ninth Circuit

supports
Congressional
goals
by
clarifying
the
circumstances under which employees must be compensated
for the donning and doffing of uniforms and gear, thereby
preventing unexpected and substantial liability to
employers. Consistent with these principles...donning
and doffing of police uniforms and gear are not
compensable...[where] officers retain the complete option
and ability to don and doff their uniforms and gear at
home.
Id. at 1231.

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Here, as in Bamonte, it is undisputed there is no applicable

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law or rule of the employer that requires deputies to don and doff

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their uniforms or safety equipment on County property.

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Plaintiffs’ Response to DUMF Nos. 16, 17). Plaintiffs begrudgingly

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concede that to the extent there is no law, rule, or circumstance

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that requires Plaintiff to don and doff on County property, Bamonte

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forecloses their donning and doffing claims.

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at 1-2). Plaintiffs contend that whether deputies have the “option

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and ability” to don and doff their uniforms and equipment at home

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is a disputed factual issue. (Doc. 100, Opposition at 10-11).

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Plaintiffs advance the following arguments:

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(Doc. 101,

(Doc. 151, Statement

First, deputies come into contact with hazardous
substances while performing their duties, such as blood,

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other bodily fluids, and contagious diseases that put
deputies’ families at risk if they change at home.
Second, the protective gear that deputies must carry on
duty—such as firearms, chemical sprays, ammunition
magazines, and the heavy duty belts—can injure deputies
and their family members if they bring the items home.
Third, when deputies bring their gear home, the risk of
loss and theft increases as well as the risk that they
will not have required gear when reporting to duty.
Finally, by identifying themselves as peace officers,
they can simultaneously become targets of violence by
criminals and beacons of assistance to the public because
of their dual responsibilities of apprehending criminals
and protecting the public—roles for which they are not
well-equipped while off duty.

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5
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(Doc. 100, Opposition at 10-11) (citations omitted).1
Circuit rejected Plaintiffs’ arguments in Bamonte:

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In this case, the officers have cited no law, rule or
regulation mandating on-premises donning and doffing. In
Steiner and Alvarez, on-premises donning and doffing
"fulfill[ed]
mutual
obligations
of
employer
and
employee." Alvarez, 339 F.3d at 901; see also Steiner,
350 U.S. at 252. In this case, the officers identify no
obligation on either side that would be fulfilled by
on-premises donning and doffing. Finally, in Steiner,
Alvarez, and Ballaris, on-premises donning and doffing
were expressly determined to be for the benefit of the
employer. In contrast, in this case, the officers urged
a conclusion of compensability primarily for reasons that
were of sole benefit to the employee (risk of loss or
theft of uniforms, potential access to gear by family
members or guests, risk of performing firearm checks at
home, discomfort while commuting, risk of being
identified as officer while off-duty, and risk of
exposing family members to contaminants and bodily fluids
from encounters in the line of duty). Because of the
disparity in the circumstances, we are not convinced that
the holdings in Steiner, Alvarez, and Ballaris support a
similar conclusion in this case that donning and doffing
of uniforms and related gear on the employer's premises
are compensable under the FLSA as "integral and
indispensable" work activities.

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14
15
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23
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The Ninth

Balmonte, 598 F.3d at 1225-26.

In light of Bamonte, the evidence

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1

The cases cited by Plaintiffs, Martin v. City of Richmond, 504 F. Supp. 2d 766,
776 (N.D. Cal. 2007) and Nolan v. City of Los Angeles, 2009 U.S. Dist. LEXIS
70764 (C.D. Cal. 2009), predate Bamonte and are not persuasive on this point in
light of the Ninth Circuit’s treatment of the arguments countenanced therein.

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1

Plaintiffs seek to rely on is insufficient as a matter of law to

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raise a triable issue regarding whether Plaintiffs are “required”

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to don and doff at the workplace.

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See id.

As Plaintiffs acknowledge, Bamonte forecloses the claims of

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non-THPVP deputies.

See, e.g., Reed v. County of Orange, 716 F.

6

Supp. 2d 876, 884 (C.D. Cal. 2010) (holding that Bamonte forecloses

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claims for donning and doffing of police uniforms and equipment not

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required to occur at workplace).

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deputies claims survive Bamonte, however, as THPVP deputies are

Plaintiffs contend that THPVP

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required to don and doff their uniforms and equipment at home.

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Plaintiffs’ contention is contrary to the Ninth Circuit’s express

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determination in Bamonte that at-home donning and doffing is not

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compensable. 598 F.3d at 1229 (discussing support for the Court’s

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“determination of the non-compensability of at-home donning and

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doffing”).

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Plaintiffs’ donning and doffing claims.

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B. Vehicle Commute Time

It is rejected.

Summary judgment is GRANTED on

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Plaintiffs seek compensation for the time spent commuting to

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and from their duty assignments in County vehicles pursuant to the

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THPVP.

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THPVP

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indispensable” to their employment duties during their commute.

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Plaintiffs contend that such time is compensable because
deputies

conduct

activities

that

are

“integral

In 1996, Congress amended the Portal-to-Portal Act by enacting

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the Employee Commuter Flexibility Act (“ECFA”).

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that employers need not compensate employees for:

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and

The ECFA provides

(1) walking, riding, or traveling to and from the actual
place of performance of the principal activity or
activities which such employee is employed to perform,
and

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2
3
4
5
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7
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(2) activities which are preliminary to or postliminary
to said principal activity or activities,
which occur either prior to the time on any particular
workday at which such employee commences, or subsequent
to the time on any particular workday at which he ceases,
such principal activity or activities. For purposes of
this subsection, the use of an employer's vehicle for
travel by an employee and activities performed by an
employee which are incidental to the use of such vehicle
for commuting shall not be considered part of the
employee's principal activities if the use of such
vehicle for travel is within the normal commuting area
for the employer's business or establishment and the use
of the employer's vehicle is subject to an agreement on
the part of the employer and the employee or
representative of such employee.

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29 U.S.C. § 254(a)(emphasis added).

Here, it is undisputed that

11
commute to and from home in take home vehicles is subject to an
12
agreement– the THPVP.
13
Pursuant

to

the

ECFA,

employees

are

only

entitled

to

14
compensation

to

the

extent

they

perform

additional

legally

15
cognizable work while driving to their workplace.

See Rutti v.

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Lojack Corp., 596 F.3d at 1053 (citing Adams v. United States, 471
17
F.3d 1321, 1325 (Fed. Cir. 2007) and Smith v. Aztec Well Servicing
18
Co., 462 F.3d 1274, 1286-87 (10th Cir. 2006)).

In Adams, the

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Federal Circuit rejected the claims of government law enforcement
20
agents seeking compensation for their commute from home to work in
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government-owned vehicles.

The plaintiffs in Adams

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argued that they had to be available for emergency calls,
had to have their weapons with them, had to monitor their
communication equipment, could not run any personal
errands, and had to proceed directly from home to work
and back without unauthorized detours or stops. The
Federal Circuit held that pursuant to 29 U.S.C. § 254(a),
merely commuting was insufficient; the plaintiffs must
perform additional legally cognizable work while driving
to their workplace in order to compel compensation for
the time spent driving.

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10

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Rutii, 596 F.3d at 1053 (citations and quotations omitted).

2

Relying on the rationale expressed by the Federal Circuit in

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Adams, the Ninth Circuit rejected the plaintiff’s claim that he was

4

entitled to compensation for his commute time because he was

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required to have his cell phone on during his commute and could not

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use his company vehicle for personal pursuits.

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1054-55.

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v. United States, 136 F.3d 1465 (Fed. Cir. 1998) with approval:

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Rutti, 596 F.3d at

Rutii also cited the Federal Circuit’s reasoning in Bobo

In Bobo v. United States, 136 F.3d 1465 (Fed Cir. 1998),
a group of Border Patrol agent dog handlers sought
compensation for the time spent transporting their dogs
between their homes and Border Patrol offices. Id. at
1466-67. They were not allowed to use the vehicles for
personal use, were not allowed to make personal stops
during their commute, were required to wear their
official uniforms while using the vehicles, were required
to monitor their radios, report their mileage and look
out for suspicious activities. Id. at 1467. In addition,
they were required "to make stops for the dogs to
exercise and relieve themselves." Id. Nonetheless, the
Federal Circuit held that even accepting the restrictions
as compulsory and for the benefit of their employer, "the
burdens alleged are insufficient to pass the de minimis
threshold." Id. at 1468. The court specifically noted
that "the main restriction on the INS Agents is the
prohibition on making personal stops during their
commute," and held that "such a restriction on their use
of a government vehicle during their commuting time does
not make this time compensable." Id.

20
Rutii, 596 F.3d at 1053.
21
Pursuant to Rutii, the fact that Plaintiffs are required to
22
monitor their communications equipment during their commute is
23
insufficient to transform their commutes into compensable work.
24
Id. at 1054 n.7.

Although Plaintiffs may be called upon to

25
“engag[e] in the myriad of duties performed by a patrol deputy”
26
during

their

commutes,

(Doc.

100,

Opposition

at

17),

the

27
possibility of having to perform compensable activities during
28
11

1

their commutes does not transform Plaintiffs’ entire commutes into

2

compensable work, see id; accord Adams, 471 F.3d at 1326-27; Bobo,

3

136 F.3d at 1468; Aiken v. City of Memphis, 190 F.3d 753, 759 (6th

4

Cir. 1999) (“monitoring a police radio does not convert commute

5

time into compensable work”).

6

County policy, deputies are instructed to report through the

7

payroll system time spent responding to calls during their commute,

8

and that such time is compensable. (Doc. 101, Plaintiffs’ Response

9

to DUMF Nos. 37, 38).2

It is undisputed that, pursuant to

In other words, to the extent Plaintiffs

10

are called upon to perform legally cognizable work during their

11

commute, County policy requires that they be compensated for such

12

work.

13

Plaintiffs’ claims for compensation for their commute time.

14

C. Vehicle Maintenance Time

15

The County’s motion for summary judgment is GRANTED on

The SAC alleges that Plaintiffs are not compensated for

16

“cleaning and maintenance of...vehicles.”

(SAC at 2).

In support

17

of their contention that Plaintiffs “clean and maintain vehicles on

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21
22
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24
25
26
27
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2

Plaintiffs attempt to create a factual dispute regarding whether the County
adheres to its stated policy requiring compensation for time spent by deputies
performing work activities during their commutes.
As an initial matter, even
accepting Plaintiffs’ representation as true, the fact that the County may have
failed to compensate some deputies for cognizable work performed during their
commutes is not relevant to the issue of whether the commutes are compensable in
and of themselves.
Deputies that have been denied compensation for legally
cognizable work performed during their commutes may be entitled to compensation
under the FLSA for such work, but not for their entire commutes. See Rutti, 596
F.3d at 1054; see also Adams, 471 F.3d at 1326-27. Further, Plaintiffs submit no
competent evidence that the County refuses to compensate deputies for work
performed during their commutes.
Rather, Plaintiffs submit only the vague
inadmissible triple-hearsay statement of the President of the Fresno Deputy
Sheriff’s association, who represents “we have received multiple complaints about
the Department denying overtime requests for lengthy DUI stops made by deputies
during their commutes.” (Doc. 106, Schmidt Decl. at 5). Critically, Plaintiffs’
second amended complaint does not properly assert a claim for compensation based
on time spent performing legally cognizable work during commutes; the complaint
alleges only that the County “fail[s] to compensate Plaintiffs...for the time
spent traveling to and from work...” (Doc. 27, SAC at 2) (emphasis added).

12

1

their own time,” Plaintiffs offer the deposition testimony of Jason

2

Deimerly and John Capriola and the Declarations of Eric Schmidt and

3

John Capriola.

4

No. 80).

5

“cleaning

6

consists of washing the exteriors and cleaning the interiors of

7

patrol vehicles.

8

also required to check vehicles’ fluid levels and maintain proper

9

tire

(Doc. 102, Plaintiffs’ Statement of Disputed Fact

The evidence provided by Plaintiffs indicates that the
and

maintenance”

inflation.

Plaintiffs

seek

compensation

for

Pursuant to the terms of the THPVP, deputies are

Plaintiffs

contend

that

their

cleaning

and

10

maintenance of patrol vehicles is “integral and indispensable” to

11

their duties.

12

expansive interpretation.

Plaintiffs cite no authority in support of their

13

The FLSA expressly excludes “activities performed by an

14

employee which are incidental to the use of [an employer’s] vehicle

15

for

16

activities” under the FLSA. 29 U.S.C. § 254(a).

17

does not define “incidental activities,” routine visual inspections

18

of fluid levels and tire pressure levels needed to ensure that a

19

vehicle is in safe operating condition appear to be incidental to

20

use of the vehicle within the meaning of section 254(a). See Aiken,

21

190 F.3d at 759.

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23
24
25
26

commuting”

from

the

category

of

compensable

“principal

Although the FLSA

As the Sixth Circuit noted in Aiken:

The legislative history of the 1996 amendments [to the
FLSA] is instructive [on the issue of cleaning and
maintenance claims]: "It is not possible to define in all
circumstances what specific tasks and activities would be
considered 'incidental' to the use of an employer's
vehicle for commuting. . .Routine vehicle safety
inspections or other minor tasks have long been
considered preliminary or postliminary activities and are
therefore not compensable." H.R. Rep. 104-585.

27
Id. (emphasis added).
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13

1

Assuming arguendo that section 254(a) does not expressly

2

preclude Plaintiffs’ cleaning and maintenance claims, Plaintiffs

3

cannot establish that washing their patrol cars and conducting

4

routine safety inspections are activities that are integral and

5

indispensable to the principal activities of their employment.3

6

“There is a difference between an indispensable activity and

7

an integral activity.”

8

activity is indispensable does not necessarily mean that the

9

activity is integral to the principal work performed.” Id. (citing

10

Gorman v. Consolidated Edison Corp., 488 F.3d 586, 592-93 (2nd Cir.

11

2007)).

12

must

13

employment.

14

King Packing Co., 350 U.S. 260, 262 (1956)).

15

analysis in Gorman provides examples of tasks that are “integral”

16

to various jobs:

17

be

Bamonte, 598 F.3d at 1232.

“That an

In order for an activity to be “integral,” the activity
“intrinsically

connected”

to

the

unique

duties

of

See Gorman, 488 F.3d at 591 (discussing Mitchell v.
The Second Circuit’s

Sharpening the knife is integral to carving a carcass,
Mitchell, 350 U.S. at 263; powering up and testing an
x-ray machine is integral to taking x-rays, Kosakow v.
New Rochelle Radiology Assocs., P.C., 274 F.3d 706,
717-18 (2d Cir. 2001); and feeding, training and walking
the dog is integral to the work of a K-9 officer, Reich
v. N.Y. City Transit Auth., 45 F.3d 646 (2d Cir. 1995),
limited in part by IBP, 546 U.S. at 21. See also IBP, 546
U.S. at 40-41 (observing that activities which are
"necessary" (or indispensable) to a principal activity
are not thereby "integral and indispensable"); 29 C.F.R.
§ 790.7(d) (noting, for example, that "the carrying by a
logger of a portable power saw or other heavy equipment
(as distinguished from ordinary hand tools) on his trip
into the woods to the cutting area . . . is not

18
19
20
21
22
23
24
25
26
27
28

3

It is questionable that the specific activity Plaintiffs’ seek compensation
for, off-duty cleaning and maintenance of patrol vehicles, constitutes “work”
under the FLSA, as it is neither required nor controlled by the County. It is
undisputed that the County provides on-duty time to complete these tasks for
which Plaintiffs are compensated.

14

1

segregable from the simultaneous performance of his
assigned work" and is thus integral to his principal
activities) (emphasis added).

2
3

...Steiner [] supports the view that when work is done in
a lethal atmosphere, the measures that allow entry and
immersion into the destructive element may be integral to
all work done there, just as a diver's donning of
wetsuit, oxygen tank and mouthpiece may be integral to
the work even though it is not the (underwater) task that
the employer wishes done.

4
5
6
7
Id.

Here, Plaintiffs’ cleaning and maintenance of their vehicles

8
during

off-duty time is not intrinsically related to Plaintiffs’

9
law enforcement function.

Making sure a vehicle has sufficient

10
radiator fluid, oil, and tire pressure is not uniquely related to
11
the duties of a Sheriff; rather, such tasks are attendant to any
12
profession in which an automobile is utilized.

The cleaning and

13
maintenance

Plaintiffs’

seek

compensation

for

is

related

to

14
Plaintiffs’ employment only in the attenuated sense that such
15
activities are necessary to safely operate any automobile.

As

16
Plaintiffs’ off-duty washing and maintenance of their take home
17
patrol vehicles are tasks incidental to use of the vehicles and are
18
not integral to on-the-job performance of the vehicles, they are
19
not compensable under the FLSA.

Aiken, 190 F.3d at 759; 29 U.S.C.

20
§ 254(a); but see Sjoblom v. Charter Communs., LLC, 571 F. Supp. 2d
21
961, 963, 972 (W.D. Wis. 2008) (suggesting vehicle maintenance is
22
compensable where employees were required, inter alia, to change
23
oil, clean, organize, and supply company vehicles oil on off-duty
24
time); Powell v. Carey Int'l, Inc., 514 F. Supp. 2d 1302, 1308
25
(S.D. Fla. 2007) (denying summary judgment where record did not
26
contain sufficient facts to determine whether cleaning, inspection,
27
28
15

maintenance

activities

required

were

de

minimis).4

1

and

The

2

County’s motion for summary judgment is GRANTED as to Plaintiffs’

3

vehicle maintenance claims.

4

D. Firearms Qualification and Maintenance

5

According to Plaintiffs evidence, firearms qualification takes

6

approximately two hours, most of which is spent cleaning the

7

weapons used during qualification.

8

84).

9

Plaintiffs’

(Doc. 108, Capriola Dep. RT at

The County contends it is entitled to summary judgment on
claims

for

compensation

for

off-duty

firearms

10

qualification and maintenance because the County provides on-duty

11

time to perform the qualifications, and because County policy

12

permits

13

qualification where it cannot be completed during normal duty

14

hours. The County avers that Plaintiffs off-duty qualification and

15

maintenance is done as a matter of personal preference.

deputies

to

submit

overtime

requests

for

firearms

16

Whether the County permits Plaintiffs to submit overtime

17

requests when firearms qualification and maintenance cannot be

18

completed during normal duty hours is subject to a factual dispute.

19

Deputy Jason Deimerly testified under oath that a supervisory

20

employee

21

deputies during a briefing session that “overtime is not authorized

22

for [firearms] qualifications.”

of

the

County,

Sergeant

Frances

Devins,

instructed

(Doc. 112-5, Deimerly Dep. RT at

23
24
25
26
27
28

4

Unlike the instant case, both Powell and Sjoblom concerned instances where the
employees were required to perform vehicle maintenance during off-duty time.
Further, at least some of the vehicle maintenance tasks plaintiffs sought
compensation for in Powell and Sjoblom were integral to their unique duties of
employment. In Powell, limousine drivers were required to restock their vehicles
with amenities, the provision of which was inherently part of the service
provided by the limousine company.
Similarly, in Sjoblom, drivers of a cable
company’s vehicles were required to re-stock the vehicles with materials
necessary to provide cable services to customers.

16

1

116).

The County disputes the meaning of Deimerly’s testimony,

2

noting that Deimerly’s responses to follow up questions suggest

3

that Devins’ statement can be construed as an instruction to

4

deputies to manage their time so as to have sufficient time for on-

5

duty firearms qualification.

6

for summary judgment, all inferences regarding Devins’ statement

7

must be drawn in favor of Plaintiffs.

8

with Deimerly’s testimony could draw the inference that Devins’ was

9

instructing deputies not to submit overtime requests for off-duty

10

weapons qualification even when such off-duty qualification was

11

required by the circumstances, there is a factual dispute regarding

12

whether the County actually permits officers to submit overtime

13

requests for off-duty weapons qualification, notwithstanding its

14

state policy.

15

duty weapons qualification claims.5

16

E. Lunch Periods

In the context of Defendants’ motion

As a rational jury presented

Summary judgment is DENIED as to Plaintiffs’ off-

17

Plaintiffs’ SAC asserts that Courtroom Deputy Plaintiffs are

18

entitled to compensation for the unpaid meal period provided by the

19

County

20

maintain radio contact, are subject to call backs for service, and

21

are frequently interrupted by citizens requesting information or

22

assistance. The County contends it is entitled to summary judgment

23

on Plaintiffs’ meal period claims because Courtroom Deputies are

24

not required to remain in uniform or perform any employment duties

because

such

Plaintiffs

routinely

remain

in

uniform,

25
26
27
28

5

The extent to which the SAC seeks compensation for time spent maintaining
firearms at times other than during firearms qualification is unclear. Neither
party has presented evidence concerning the frequency of such maintenance or the
amount of time required to conduct such maintenance.

17

1

during their meal breaks.

2

time necessary to don, doff, and then re-don the uniform and

3

equipment is considerably prohibitive.”

4

Response to DUMF No. 73).

5

Employers

providing

Plaintiffs respond that “the amount of

unpaid

meal

(Doc. 101, Plaintiffs’

breaks

must

"completely

6

reliev[e]" employees "from duty for the purposes of eating regular

7

meals" for a period of 30 minutes or more. 29 C.F.R. § 785.19.

8

Applicable regulations provide that “the employee is not relieved

9

if

he

is

required

to

perform

any

duties,

whether

active

or

10

inactive, while eating.”

Id.; see Brennan v. Elmer's Disposal

11

Serv., Inc., 510 F.2d 84, 88 (9th Cir. 1975) (holding that "[a]n

12

employee cannot be docked for lunch breaks during which he is

13

required to continue with any duties related to his work").

14

Plaintiffs’ claims are predicated on the fact that some

15

Courtroom Deputies remain in uniform during their meal periods, and

16

that in such instances, they are often called upon to perform tasks

17

akin to their normal employment duties.

18

that Courtroom Deputies are not required by the County to remain in

19

uniform during their meal periods.

20

the time it takes to doff and re-don their uniforms and gear

21

prohibits them from changing out of their uniforms and gear during

22

their lunch period; they contend only that the time involved is

23

“considerably prohibitive.”

24

provided a one-hour meal period, during which they are not required

25

to remain in uniform or perform work duties.

26

GRANTED on Plaintiffs’ meal break claims.

27

///

However, it is undisputed

Plaintiffs do not contend that

It is undisputed that Plaintiffs are

28
18

Summary judgement is

1

F. Plaintiffs’ Motion

2

Plaintiffs move for summary judgment on issues related to

3

their donning and doffing claims.

Plaintiffs motion is MOOT, as

4

Bamonte forecloses Plaintiffs’ donning and doffing claims.
ORDER

5
6

For the reasons stated, IT IS ORDERED:

7

1) Summary judgment is GRANTED for Defendants on Plaintiffs’

8

donning and doffing claims;

9

2) Summary judgment is GRANTED for Defendants on Plaintiffs’

10

commute-time claims;

11

3) Summary judgment is GRANTED for Defendants on Plaintiffs’

12

vehicle maintenance claims;

13

4) Summary judgment is GRANTED for Defendants on Plaintiffs’

14

meal break claims;

15

5)

16

qualification and maintenance claims;

17

6) Plaintiffs’ motion for summary judgment is DENIED as MOOT;

18

and

19

7) Defendants shall submit a form of order consistent with

20

this

21

service of this decision.

22

IT IS SO ORDERED.

23

Dated:
hkh80h

Summary

judgment

memorandum

August 2, 2011

is

decision

DENIED

within

on

five

Plaintiffs’

days

of

electronic

/s/ Oliver W. Wanger
UNITED STATES DISTRICT JUDGE

24
25
26
27
28
19

firearms