Peterson v. Navajo, County of

1 WO — 2 — — 3 — — 4 — — 5 — 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA — 8 — 9 Thomas Scott Peterson, No. CV-20-08055-PCT-JJT 10 Plaintiff, ORDER 11 v. 12 Navajo County, 13 Defendant. — 14 — 15 At issue is Defendant Navajo County’s Motion for Summary Judgment (Doc. 67, 16 Mot.) to which Plaintiff Thomas Scott Peterson (“Mr. Peterson”) filed a Response 17 (Doc. 71, Resp.), and Defendant filed a Reply (Doc. 73, Reply). The Court finds this matter 18 appropriate for resolution without oral argument. LRCiv 7.2(f). 19 I. FACTUAL BACKGROUND 20 Mr. Peterson worked for the Navajo County Sheriff’s Office from September 2009 21 through January 2020. (Doc. 1, Compl. ¶ 6; Doc. 22, Plaintiff’s Contravening Statement of 22 Material Facts (“PSOF”) ¶ 1; PSOF Ex. 1, Declaration of Thomas Scott Peterson 23 (“Peterson Dec.”) ¶¶ 2-3.) Mr. Peterson worked on the Major Crimes Apprehension Team 24 (“MCAT”) for the duration of his time at the Navajo County Sheriff’s Office, and in 25 January 2018 was promoted from sergeant to lieutenant. (PSOF ¶¶ 2, 10.) As a lieutenant, 26 he worked alongside two sergeants, four detectives, two canine officers, and a secretary. 27 (Compl. ¶¶ 7-8; PSOF ¶ 2.) He reported to the Chief Deputy. (Compl. ¶ 8.) — 28 — 1 MCAT was divided into teams geographically, based on where the detectives lived. 2 (PSOF ¶ 3.) As an MCAT sergeant, Mr. Peterson was assigned to the north team. (PSOF 3 ¶ 7.) His responsibilities entailed “working as a supervisor in the field with his team to 4 investigate major crimes, apprehend fugitives, interface with various federal law 5 enforcement agencies, handle informants, perform surveillance, write and execute search 6 warrants,” and perform evaluations of his team members. (PSOF ¶ 8.) As a sergeant, 7 Mr. Peterson often worked more than 40 hours per week, and was paid overtime 8 compensation pursuant to the Fair Labor Standards Act (“FLSA”). (PSOF ¶ 9; see also 9 Doc. 68, Defendant’s Separate Statement of Facts in Support of Motion for Summary 10 Judgment (“DSOF”) ¶ 13.) 11 When Mr. Peterson was promoted to lieutenant, he was still expected to be out in 12 the field. (PSOF ¶ 11.) His main duties, which encompassed 80 to 90 percent of is time, 13 were enforcement-related and included “supervising primarily north team members in the 14 investigation of narcotic and other major crimes, working with informants, performing 15 surveillance, apprehending fugitives, writing search warrant affidavits and serving search 16 warrants, and writing case reports.” (PSOF ¶ 12.) As a lieutenant, Mr. Peterson also 17 acquired some additional duties beyond those he had as a sergeant. (PSOF ¶ 20.) He 18 became responsible for both the north and south teams, was required to attend a staff 19 meeting every other month, was required to submit grant proposals to the Arizona Criminal 20 Justice Commission (“ACJC”), and was responsible for the accuracy of arrest statistics on 21 the ACJC website. (PSOF ¶¶ 21-24.) He would also review and approve budget and 22 performance reports, twice attended High Intensity Drug Trafficking Areas (“HIDTA”) 23 meetings, met with the HIDTA assistant director approximately every six months, and 24 could recommend discipline for MCAT members and request equipment for MCAT. 25 (PSOF ¶¶ 25-30.) During his time as a lieutenant, Mr. Peterson did not receive overtime 26 compensation. (PSOF ¶ 35.) 27 Mr. Peterson brought the present action in March 2020. (See Compl.) In his 28 Complaint, Mr. Peterson claims that he is entitled to pay for the overtime hours he worked 1 for Defendant as a lieutenant pursuant to the FLSA. (Compl. ¶¶ 15-22.) Defendant now 2 moves for summary judgment, arguing that Plaintiff is exempt from the FLSA’s overtime 3 pay requirement. 4 II. LEGAL STANDARD 5 Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is 6 appropriate when: (1) the movant shows that there is no genuine dispute as to any material 7 fact; and (2) after viewing the evidence most favorably to the non-moving party, the 8 movant is entitled to prevail as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, — 9 — 477 U.S. 317, 322-23 (1986); Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th 10 Cir. 1987). Under this standard, “[o]nly disputes over facts that might affect the outcome 11 of the suit under governing [substantive] law will properly preclude the entry of summary 12 judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A “genuine issue” 13 of material fact arises only “if the evidence is such that a reasonable jury could return a 14 verdict for the nonmoving party.” Id. 15 In considering a motion for summary judgment, the court must regard as true the 16 non-moving party’s evidence, if it is supported by affidavits or other evidentiary material. 17 Celotex, 477 U.S. at 324 ; Eisenberg, 815 F.2d at 1289 . However, the non-moving party 18 may not merely rest on its pleadings; it must produce some significant probative evidence 19 tending to contradict the moving party’s allegations, thereby creating a material question 20 of fact. Anderson, 477 U.S. at 256-57 (holding that the plaintiff must present affirmative 21 evidence in order to defeat a properly supported motion for summary judgment); First Nat’l 22 Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968). 23 “A summary judgment motion cannot be defeated by relying solely on conclusory 24 allegations unsupported by factual data.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 25 1989). “Summary judgment must be entered ‘against a party who fails to make a showing 26 sufficient to establish the existence of an element essential to that party’s case, and on 27 which that party will bear the burden of proof at trial.’” United States v. Carter, 906 F.2d 28 1375, 1376 (9th Cir. 1990) (quoting Celotex, 477 U.S. at 322 ). 1 III. ANALYSIS 2 A. A Reasonable Jury Could Conclude that Plaintiff was Not Exempt from 3 the FLSA’s Overtime Provisions 4 Congress enacted the FLSA “to protect all covered workers from substandard wages 5 and oppressive working hours.” Barrentine v. Arkansas-Best Freight Sys. Inc., 450 U.S. 6 728, 739 (1981). Among the FLSA’s central provisions is its requirement that employers 7 pay non-exempted workers at one and a half times the regular rate for any time worked in 8 excess of forty hours in a single week. 29 U.S.C. § 207 ; see Tyson Foods, Inc. v. 9 Bouaphakeo, 136 S. Ct. 1036, 1042 (2016). This provision does not apply to those 10 employed “in a bona fide executive, administrative, or professional capacity.” 29 U.S.C. 11 § 213(a). 12 Thus, the first issue the Court must address is whether Plaintiff was properly 13 classified as exempt. The FLSA mandates that employers pay overtime compensation for 14 time worked in excess of 40 hours in a week unless an exemption applies. 29 U.S.C. 15 § 207(a)(1). Whether an exemption applies is a question of law, but the underlying facts 16 pertaining to an employee’s job duties may involve questions of fact. See Solis v. 17 Washington, 656 F.3d 1079, 1083 (9th Cir. 2011). Thus, if no genuine dispute exists as to 18 an MCAT lieutenant’s job duties, the Court can hold as a matter of law that Plaintiff either 19 does or does not fall into an exemption. 20 As the employer, Defendant bears the burden of establishing an exemption applies. 21 Klem v. Cty. of Santa Clara, 208 F.3d 1085 , 1089 (9th Cir. 2000). The FLSA exemptions 22 “are to be withheld except as to persons plainly and unmistakably within their terms and 23 spirit.” Id. The criteria in regulations is “absolute,” such that the employer must prove an 24 employee “meets every requirement before the employee will be deprived of the protection 25 of the Act.” Bothell v. Phase Metrics, Inc., 299 F.3d 1120, 1125 (9th Cir. 2002). 26 Defendant moves the Court for summary judgment, arguing that Plaintiff is not 27 entitled to overtime pay because, due to his status as a lieutenant, he is exempt from the 28 FLSA’s overtime pay requirements as an “executive” or “administrative” employee under 1 the Act. (Mot. at 7-8, citing 29 U.S.C. § 212 (a)(1) (2000).) Defendant points out that the 2 Department of Labor’s regulations describe an “executive” as an employee (1) “whose 3 primary duty is management,” (2) “who regularly directs the work of two or more 4 employees,” (3) “who has the authority to affect a change in the employment status of his 5 or her subordinates,” and (4) “who exercises discretion.” (Mot. at 8, citing 29 C.F.R. 6 § 541.1-541.3.) An administrative employee is defined as an employee (1) “whose primary 7 duties consist of office or nonmanual work directly related to management policies or 8 general business operations”; (2) “who customarily and regularly exercises discretion and 9 judgment,” and (3) “who executes under only general supervision special assignments and 10 tasks.” (Mot. at 9 (internal quotations omitted).) 11 Plaintiff, on the other hand, argues that the first responder regulation applies in this 12 case, so Plaintiff is indeed eligible for overtime pay. (Resp. at 5.) The regulation provides 13 that the exemptions do not apply to 14 police officers, detectives, deputy sheriffs, state troopers, highway patrol officers, investigators . . . regardless of rank or 15 pay level, who perform work such as. . . preventing or detecting crimes; conducting investigations or inspections for violations 16 of law; performing surveillance; pursuing, restraining and apprehending suspects; detaining or supervising suspected and 17 convicted criminals, including those on probation or parole; interviewing witnesses; interrogating and fingerprinting 18 suspects; preparing investigative reports; or other similar work. — 19 — 29 C.F.R. § 541.3 (b)(1). The regulation further provides: 20 (2) Such employees do not qualify as exempt executive employees because their primary duty is not management of 21 the enterprise in which the employee is employed or a customarily recognized department or subdivision thereof as 22 required under § 541.100. Thus, for example, a police officer or fire fighter whose primary duty is to investigate crimes or 23 fight fires is not exempt under section 13(a)(1) of the Act merely because the police officer or fire fighter also directs the 24 work of other employees in the conduct of an investigation or fighting a fire. — 25 — (3) Such employees do not qualify as exempt administrative 26 employees because their primary duty is not the performance of work directly related to the management or general business 27 operations of the employer or the employer's customers as required under § 541.200. — 28 — 1 Under the first responder regulation, federal courts have found high-level police and 2 fire officials to be exempt employees only where the employee’s primary duty is managerial 3 or administrative. See Maestas v. Day & Zimmerman, LLC, 664 F.3d 822, 826-27 (10th Cir. 4 2012) (citing 29 CFR § 541.100 (a)(2); § 541 (a)(2); and § 541.200(a)(2)). To determine an 5 employee’s primary duty, courts consider all the facts of the case as they relate to: (1) the 6 relative importance of the exempt duties as compared with other types of duties; (2) the 7 amount of time spent performing exempt work; (3) the employee’s relative freedom from 8 direct supervision; and (4) the relationship between the employee’s salary and the wages 9 paid to other employees for the kind of nonexempt work performed by the employee. Mullins 10 v. City of New York, 653 F.3d 104, 106-07 (2d Cir. 2011). 11 Defendant argues that the Navajo County Sheriff’s written policies are controlling 12 when it comes to determining Plaintiff’s primary duty. (Mot. at 3; DSOF ¶ 1.) According 13 to Defendant, these policies detail which positions qualify for overtime pay. (Mot. at 3.) 14 Defendant claims that the duties of an MCAT lieutenant are prescribed by a written job 15 description, which makes clear that a lieutenant is “paid to perform the primary duty of 16 supervisor and manager, with the primary duty of managing and supervising MCAT in 17 particular, whether performing those duties in the field or in the office.” (Mot. at 3-4; DSOF 18 ¶¶ 4-5.) Defendant also observes that Plaintiff was paid a salary and supervised more than 19 two persons. (Mot. at 10.) 20 Defendant further argues that courts in the Ninth Circuit have found that “police 21 lieutenants and captains who manage or supervise a defined unit or subdivision of a law 22 enforcement agency are routinely held to fall into one of the exempt categories.” (Mot. 23 at 9.) Defendant relies on Barner v. City of Novato in making this assertion, where the 24 Ninth Circuit affirmed the district court’s finding that the plaintiffs had primarily executive 25 duties following a trial on the merits. 17 F.3d 1256 , 1260 (9th Cir. 1994). However, such 26 a case is not persuasive at the summary judgment stage, where the Court may not draw 27 factual findings. In Nolan v. City of Los Angeles, which Defendant also cites, the court did 28 not hold that the plaintiffs fell into the exempt category, as Defendant implies. No. CV 031 02190 GAF, 2009 WL 10664754 , at *4-5 (C.D. Cal. Dec. 10, 2009). Rather, the Nolan 2 court determined that “the primary duties of these Plaintiffs likely include management 3 functions sufficient to meet the primary duties tests of both the administrative and 4 executive exemptions,” and concluded that the addition of the administrative exception to 5 an amended answer would not be futile. Id. (emphasis added). Like in Barner, the 6 procedural posture in Nolan is a far cry from that of the instant case. 7 Plaintiff maintains that summary judgment is inappropriate in this case. Plaintiff 8 argues that the question of which duty is an employee’s primary duty is a question of fact 9 for a jury. (Resp. at 6.) See Miller v. Travis County, Texas, 953 F.3d 817, 820-21 (5th Cir. 10 2020) (holding that the question of whether lieutenants fell within the scope of the 11 executive exemption from the FLSA’s overtime requirements was a question of fact for the 12 jury). 13 Further, Plaintiff points to other factual issues that preclude summary judgment. 14 Plaintiff argues that neither the title “lieutenant” nor a written job description is dispositive. 15 (Resp. at 7.) Plaintiff observes that the County has not provided facts to show that he did 16 not work in the field 80 to 90 percent of the time, although it is undisputed that he “was 17 required to work alongside his sergeants and detectives in order to assess, manage, and 18 closely supervise the law enforcement activities of his personnel in investigating major 19 crimes in Navajo County.” (Resp. at 7, citing DSOF ¶ 28.) Plaintiff claims that his work in 20 the field is “clearly” non-exempt under the first responder regulation. (Resp. at 7.) 21 Taking the evidence in the light most favorable to Plaintiff—the non-moving 22 party—the Court finds that genuine issues of material fact remain, rendering this matter 23 unsuitable for summary judgment. See Celotex, 477 U.S. at 322-23 . The question of 24 whether Plaintiff falls within the executive exemption to the FLSA presents issues of fact 25 for a jury to determine. Accordingly, Defendant’s Motion is denied. 26 B. Liquidated Damages 27 Under the FLSA, liquidated damages are mandatory unless the employer shows it 28 acted in subjective good faith and had objectively reasonable grounds for believing its 1 conduct did not violate the FLSA. Chao v. A–One Med. Servs., Inc., 346 F.3d 908, 920 (9th 2 Cir. 2003). The employer has the burden to “establish that it had an honest intention to 3 ascertain and follow the dictates of the Act and that it had reasonable grounds for believing 4 that its conduct complied with the Act.” Flores v. City of San Gabriel, 824 F.3d 890 , 905 5 (9th Cir. 2016) (internal quotations and brackets omitted). The Ninth Circuit describes this 6 as a “heavy burden,” which involves mixed questions of fact and law. Id. 7 Defendant argues that even if Plaintiff is entitled to overtime pay, there is ample 8 evidence of good faith and reasonableness, so liquidated damages should not be awarded. 9 (Mot. at 10.) Defendant points out that it works “cooperatively” with human resources, 10 payroll specialists, and insurers to determine the exempt status of its employees. 11 (Mot. at10.) Defendant also claims that Plaintiff’s job description defined his duties, and it 12 reasonably expected Plaintiff to perform the duties prescribed. (Mot. at 10.) Thus, it was 13 up to Plaintiff to inform Defendant of what he was doing, but Defendant received no 14 information suggesting that Plaintiff was not performing his supervisory duties or was 15 entitled to overtime pay. (Mot. at 10-11.) 16 Plaintiff disputes Defendant’s contention that it acted in good faith. Plaintiff 17 explains that Cheryl Powell (“Ms. Powell”) was the commanding lieutenant over 18 administration for the duration of Plaintiff’s employment. (PSOF ¶ 31.) Ms. Powell had 19 minimal training on the FLSA, but was responsible for determining who was eligible for 20 overtime compensation based on County policy, sometimes conferring with human 21 resources, payroll specialists and the insurance office. (PSOF ¶ 32.) Ms. Powell was not 22 aware of any action taken by any of Defendant’s employees to determine whether Plaintiff 23 was entitled to overtime pay as MCAT lieutenant. (PSOF ¶ 33, Ex. 8, Deposition of Cheryl 24 Powell 21:1-9.) For these reasons, Plaintiff argues that the County cannot claim to have 25 “actively endeavored” to ensure compliance with the FLSA. (Resp. at 9.) 26 The Court agrees with Plaintiff. In Flores, the Ninth Circuit found that the plaintiffs 27 were entitled to liquidated damages, reasoning “[t]hat the payroll department consulted the 28 human resources department sheds no light on how either department determined that the 1 || payment’s designation as a “benefit” complied with the FLSA.” Flores, 824 F.3d at 905 2|| (emphasis in original). Here, Defendant’s brief discussion of liquidated damages provides 3|| no evidence beyond that discussed in Flores. Therefore, Defendant is not entitled to summary judgment on the issue of liquidated damages. 5 IT IS THEREFORE ORDERED denying Defendant’s Motion for Summary 6 || Judgment (Doc. 67). The Court will set a pretrial status conference by separate Order. 7 Dated this 31st day of March, 2022. CN 9 wefhelee— Unifgd State#District Judge — 10 — — 11 — — 12 — — 13 — — 14 — — 15 — — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 — -9-