Aponte v. Mason Cnty. Fire Prot.

• Decision Date: 21 November 2022
• Docket Number: 3:21-cv-05459-DGE
• Parties: LUIS APONTE and JENNIFER SELF, Plaintiffs, v. MASON COUNTY FIRE PROTECTION DISTRICT NO 16 a/k/a WEST MASON FIRE, Defendant.
• Court: U.S. District Court — Western District of Washington

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LUIS APONTE and JENNIFER SELF, Plaintiffs,
v.
MASON COUNTY FIRE PROTECTION DISTRICT NO 16 a/k/a WEST MASON FIRE, Defendant.

No. 3:21-cv-05459-DGE

United States District Court, W.D. Washington, Tacoma

November 21, 2022

ORDER GRANTING IN PART AND DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT (DKT. NOS. 43, 46)

David G. Estudillo United States District Judge

I INTRODUCTION

This matter comes before the Court on the parties' cross-motions for summary judgment (Dkt Nos. 43, 46). For the reasons discussed herein, the Court DENIES Plaintiffs' motion for summary judgment as to the waiver of Defendant's affirmative defenses, GRANTS Plaintiffs' motion for summary judgment and DENIES Defendant's motion for summary judgment as to whether Plaintiffs were employees under the Fair Labor Standards Act (“FLSA”), DENIES the parties' cross-motions for summary judgment as to whether Plaintiffs were employees under the Washington Minimum Wage Act, Washington Revised Code § 49.46. et seq. (“MWA”),

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DISMISSES without prejudice Plaintiffs' claims for wrongful discharge for lack of jurisdiction, and DENIES Defendant's motion for summary judgment as to Plaintiffs' unjust enrichment claims.

II BACKGROUND

Plaintiffs Luis Aponte and Jennifer Self have filed suit against their former employer, the Mason County Fire Protection District No. 16, alleging violations of the FLSA and concurrent state employment laws.

Defendant Mason County Fire Protection District No. 16 provides firefighting and emergency medical services to parts of Mason County, Washington. From 2018 to 2020, all firefighters and emergency medical technicians working for Defendant were categorized as volunteers. (Dkt. No. 44 at 2.) This categorization was purportedly standard practice throughout Washington and due to budgetary constraints. (See Dkt. Nos. 44 at 2; 51-1 at 275.) Volunteers were paid $50 per 12-hour shift and $100 per 24-hour shift. (Dkt No. 44 at 2.) Defendant also contracted with a local racetrack, known as the “Ridge,” to provide on call EMT services. (Id.) While at the Ridge, firefighters received payment of $15 per hour in 2018 and $20 per hour in 2019 for on-call services. (Id.)

Plaintiff Aponte worked as a volunteer firefighter from approximately July 2018 until January 2020 and Plaintiff Self worked as a volunteer firefighter from approximately August 2019 until February 2020. (See id. at 1). Plaintiff Aponte took shifts at the Ridge while working as a volunteer firefighter for the Defendant. (Dkt. No. 48 at 2). Both Plaintiffs were ultimately terminated by the Defendant in 2020. (Dkt. Nos. 48 at 2; 49 at 2).

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In 2020, the U.S. Department of Labor's (“DOL”) Wage and Hour Division determined that Defendant had misclassified the volunteer firefighters as “volunteers” and that these volunteers fell within the definition of employees under the FLSA. (Dkt. No. 51-1 at 232-35.)

Plaintiffs filed their original complaint in federal court on June 24, 2021. (Dkt No. 1.) On May 3, 2022, Plaintiffs amended their complaint. (Dkt. No. 21.) Plaintiffs alleged that Defendant violated the FLSA's minimum wage and overtime provisions when they improperly categorizing them as volunteers. (Dkt. No. 21 at 4-6.) Additionally, Plaintiffs asserted various violations of the MWA, including violation of the statute's minimum wage and overtime provisions (id. at 5-8) and raised separate state law claims for unjust enrichment and wrongful discharge (id. at 8-9). Plaintiffs seek compensatory and punitive damages, as well as other equitable relief. (Id. at 9-10.)

Defendant filed their answer to Plaintiffs' amended complaint and affirmative defenses on May 10, 2022. (Dkt. No. 22.) On September 29, 2022, Defendant moved for summary judgment as to all of Plaintiffs' claims. (Dkt. No. 43.) Plaintiffs moved for partial summary judgment as to whether they were employees for purposes of the FLSA and the MWA and for whether the Defendant waived certain affirmative defenses by failing to raise these defenses in their answer. (Dkt. No. 46.)

III DISCUSSION

A. Summary Judgment Legal Standard

A court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “The deciding court must view the evidence, including all reasonable inferences, in favor of the non-moving party.” Reed v. Lieurance, 863 F.3d 1196, 1204 (9th Cir. 2017).

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“Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Additionally, the moving party may meet their summary judgment burden by establishing through argument that the non-movant has failed to offer any evidence in support of their claims. Garnica v. Washington Dep't of Corr., 965 F.Supp.2d 1250, 1263 (W.D. Wash. 2013), aff'd, 639 Fed.Appx. 484 (9th Cir. 2016); see also Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 532 (9th Cir. 2000); Fed.R.Civ.P. 56(e)(3). Where parties have filed cross-motions for summary judgment, “both parties asserting that there are no uncontested issues of material fact, does not vitiate the court's responsibility to determine whether disputed issues of material fact are present. A summary judgment cannot be granted if a genuine issue as to any material fact exists.” Fair Hous. Council of Riverside Cnty., Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001) (quoting United States v. Fred A. Arnold, Inc., 573 F.2d 605, 606 (9th Cir. 1978)) (internal quotation marks omitted).

B. Adequacy of Factual Record

Plaintiffs challenge the adequacy of Defendant's affidavit for purposes of summary judgment and assert that Defendant has not put forward sufficient evidence to merit summary judgment. (See Dkt. No. 52 at 7.) Federal Rule of Civil Procedure 56(c)(4) provides that “[a]n affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed.R.Civ.P. 56(c)(4). Defendant's affidavit is sworn and based on personal knowledge and as such is permissible for the Court to consider at summary judgment, even if self-serving. See also S.E.C. v. Phan, 500 F.3d 895, 909 (9th Cir. 2007) (“As we have previously noted, declarations oftentimes will be ‘self-serving'-

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'[a]nd properly so, because otherwise there would be no point in [a party] submitting [them].'”). The Court also does not find any contradiction between Defendant's affidavits and deposition testimony to be so clear and unambiguous as to constitute a “sham” such that the Court may discount them. See Yeager v. Bowlin, 693 F.3d 1076, 1080 (9th Cir. 2012)

C. Defendant Did Not Waive Their Relevant Affirmative Defenses

While Plaintiffs are correct that Defendant should have raised potential exemptions to the categorization of employees under the FLSA and MWA as affirmative defenses, raising these issues at summary judgment has not prejudiced Plaintiffs and as such the Court finds that Defendant has not waived their ability to assert these defenses.

Plaintiffs asserts that Defendant waived their ability to raise certain statutory exemptions to the FLSA and the MWA by failing to include them explicitly as affirmative defenses. (Dkt. Nos. 46 at 12; 61 at 2.) Defendant, by contrast, argues that exceptions to the FLSA are not affirmative defenses and, even if they are, Plaintiffs have not been prejudiced by Defendant raising these defenses at summary judgment. (Dkt. No. 60 at 4-5.)

Courts have consistently held that exceptions to the FLSA are affirmative defenses that need to be raised in responsive pleadings or risk waiver at a later stage of litigation. See Corning Glass Works v. Brennan, 417 U.S. 188, 196-97 (1974) (“[T]his view is consistent with the general rule that the application of an exemption under the Fair Labor Standards Act is a matter of affirmative defense on which the employer has the burden of proof.”); Magana v. Com. of the N. Mariana Islands, 107 F.3d 1436, 1446 (9th Cir. 1997), as amended (May 1, 1997) (holding that an exemption to the FLSA pursuant to 29 U.S.C. § 213 was an affirmative defense and remanding to the district court to determine whether use of the defense on summary judgment would prejudice the non-moving party); Jones v. Giles, 741 F.2d 245, 248 (9th Cir. 1984) (“An

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employer who claims an exemption from the FLSA has the burden of showing that the exemption applies.”); Molina v. First Line Sols. LLC, 566 F.Supp.2d 770, 779 (N.D. Ill. 2007) (“More to the point, it has consistently been held that FLSA exemptions may be waived by the employer if not raised in litigation in a proper and timely manner.”).

Defendant tries to distinguish the Ninth Circuit's holding in Magana as confined to § 213 of the FLSA (Dkt. No. 60 at 4), but the court in Magana cited to its prior holding in Jones to support this ruling. The Ninth Circuit in Jones categorically held that exemptions pursuant to the FLSA are affirmative defenses, and did not limit its ruling to § 213, in line with the Supreme Court's dicta in Corning Glass Works. As such, the Court agrees with Plaintiffs that use of 29 U.S.C. § 203(e)(4)(A) to exempt volunteer firefighters is an affirmative defense.

Similar logic applies to Defendant's MWA exceptions. Washington courts have noted that “[e]xclusions pertaining to MWA coverage should be construed strictly in favor of the employees so as not to defeat the broad objectives for which the act was passed.” Tift v. Pro. Nursing Servs., Inc., 886 P.2d 1158, 1161 (Wash Ct. App. 1995), as amended on reconsideration (Mar. 1, 1995) (quoting Goff v. City of Airway Heights, 730 P.2d 691, 693...