Berndt v. City of Los Angeles, 072815 FED9, 13-56142

Docket Nº:13-56142
Party Name:WENDI BERNDT, et al., Plaintiffs - Appellants, v. CITY OF LOS ANGELES, Defendant-Appellee.
Judge Panel:Before: W. FLETCHER, PAEZ, and BERZON, Circuit Judges.
Case Date:July 28, 2015
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

WENDI BERNDT, et al., Plaintiffs - Appellants,


CITY OF LOS ANGELES, Defendant-Appellee.

No. 13-56142

United States Court of Appeals, Ninth Circuit

July 28, 2015


Argued and Submitted July 9, 2015 Pasadena, California

Appeal from the United States District Court No. 2:ll-cv-08579-GAF-AJW for the Central District of California Gary A. Feess, District Judge, Presiding

Before: W. FLETCHER, PAEZ, and BERZON, Circuit Judges.


The plaintiffs ("Berndt" or "the Officers") appeal the district court's grant of summary judgment to the City of Los Angeles dismissing Berndt's claims that the City violated the Fair Labor Standards Act (FLSA). We affirm.

1.The FLSA, as interpreted by Department of Labor (DOL) regulations, permits the City's practice of compensating its employees' "gap time" with compensatory time off (CTO).

The regulations expressly classify CTO "earned and accrued by an employee for employment in excess of a nonstatutory (that is, non-FLSA) requirement" as "other" CTO not subject to the statutory overtime rate. 29 C.F.R. § 553.28. "For example, a collective bargaining agreement may provide that compensatory time be granted to employees for hours worked in excess of 8 in a day . . . ." § 553.28(a) The City's use of CTO to compensate "gap time" is specifically provided for by the collective bargaining agreement under which the Officers are employed. Their challenge to the City's use of CTO for gap time therefore fails.

2.The City has established that there is no genuine issue of material fact for trial by showing that the Officers have failed to present competent evidence of a fact that they bear the burden of establishing. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). That fact is whether the Officers performed work for which they were not properly compensated. See Brock v. Seto, 790 F.2d 1446, 1447–48 (9th Cir. 1986) ("An employee seeking to recover unpaid minimum wages or overtime under the FLSA 'has the burden of proving that he performed work for which he was not properly compensated.'" (quoting Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946)).

Under the FLSA, employees "in law enforcement activities" are exempt from the statute's 40-hour workweek requirement. 29 U.S.C. § 207(k). The criteria governing which employees qualify for this exemption are laid out in DOL...

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