Brubach v. City of Albuquerque

• Decision Date: 27 September 2012
• Docket Number: Civ. No. 10–CV–1113 MV/ACT.
• Citation: 893 F.Supp.2d 1216
• Parties: Donna L. BRUBACH, Esther Casaus–Garcia, Deborah Ferrara–Heh, Max C. Herrera, Michael Mathis, Gerald Million, Michael Moreno, Yolanda Moreno, Ted Paez, William Rogers, Walter M. Small, Velma Tapia–Chavez, Rick Walker, and Thelma West, on behalf of themselves and all others similarly situated, Plaintiffs, v. CITY OF ALBUQUERQUE, Defendant.
• Court: U.S. District Court — District of New Mexico

893 F.Supp.2d 1216

Donna L. BRUBACH, Esther Casaus–Garcia, Deborah Ferrara–Heh, Max C. Herrera, Michael Mathis, Gerald Million, Michael Moreno, Yolanda Moreno, Ted Paez, William Rogers, Walter M. Small, Velma Tapia–Chavez, Rick Walker, and Thelma West, on behalf of themselves and all others similarly situated, Plaintiffs,

v.CITY OF ALBUQUERQUE, Defendant.

Civ. No. 10–CV–1113 MV/ACT.

United States District Court,

D. New Mexico.

Sept. 27, 2012.

Marianne L. Bowers, Shane C. Youtz, Youtz & Valdez, P.C., Albuquerque, NM, for Plaintiffs.

Edward W. Bergmann, Seyfarth Shaw LLP, Chicago, IL, Rebecca E. Wardlaw, Albuquerque, NM, for Defendant.

MEMORANDUM OPINION AND ORDER

MARTHA VAZQUEZ, District Judge.

THIS MATTER comes before the Court on Plaintiffs' Motion for Partial Summary Judgment [Doc. 63], Defendant's Motion for Summary Judgment and Memorandum in Support Thereof [Doc. 64], and Plaintiffs' Motion for Partial Summary Judgment [Doc. 67] containing corrected exhibits. The Court, having considered the motions, memoranda, and relevant law, and being otherwise fully informed, finds that Plaintiff's Motion for Partial Summary Judgment [Doc. 63] is denied as moot, Defendant's Motion for Summary Judgment [Doc. 64] is well taken in part will be granted in part, and Plaintiffs' Motion for Partial Summary Judgment [Doc. 67] is well taken in part and will be granted in part.

BACKGROUND¹

The Defendant City of Albuquerque (“Defendant” or “City”) is a municipal corporation, operating under the laws of the State of New Mexico, and is an employer within the meaning of the Fair Labor Standards Act of 1938, as amended by Title 29 U.S.C. Section 201 et seq. (“FLSA”). Plaintiffs and approximately 120 other proposed class members are former and current security guards employed by the City. Plaintiffs were or are classified by the City as non-exempt employees under the FLSA and were or are paid an hourly wage of no less than $12.00. Plaintiffs' duties include maintaining custody and control of City property, patrolling designated areas of City property, and ensuring the safety and security of City property.

Plaintiffs bring suit to recover back pay and compensatory, exemplary, and punitive damages as a result of the City's alleged failure to pay employees for all hours worked and for the City's alleged failure to pay overtime wages as required by the FLSA. Plaintiffs also allege that they were not paid all wages due to them on their regular paydays in violation of the New Mexico Minimum Wage Act, New Mexico Statutes Annotated Sections 50–4–1 through 50–4–30.

A Standard Operating Procedure (“SOP”) applicable to security officers entitled “Shift Responsibilities and Duties” states that “[o]fficers should arrive for duty five minutes prior to their assigned shift to be briefed by officers going off duty.” The SOP was eliminated as of September 1, 2011. A factual dispute exists with respect to whether Plaintiffs were required to comply with the SOP. Specifically, Plaintiffs present evidence (1) that Sergeants were tasked with enforcing the SOPs, (2) that Security Chief for the City Mark Shepherd was aware that there was an SOP requiring security officers to arrive five minutes early and that Sergeants were tasked with enforcing the SOPs, (3) that eight of the Plaintiffs were told by at least seven different Sergeants, two Lieutenants, and one supervisor that they were required to comply with the SOP and arrive five minutes early, and (4) that Plaintiff Yolanda Moreno was informed that a Sergeant would “write her up” if she did not arrive early. Defendant presents contrary evidence that Security Chief Shepherd has never instructed security officers to arrive five minutes early and that he personally has not known any of the Sergeants or Lieutenants who supervise the security officers to so instruct the officers.

No security officers were ever disciplined for failing to report five minutes early. In addition, Sergeants and Lieutenants usually were not present at shift changes. Prior to Plaintiffs' lawsuit, the City did not monitor its videotapes to document when employees arrived.

Plaintiffs did not always arrive five minutes early to their post. Plaintiff Michael Moreno testified that he usually arrived five minutes early, but approximately five percent of the time he arrived right at the beginning of his shift. Plaintiff Ted Paez testified that he has been tardy on occasion. Plaintiff Yolanda Moreno testified that the only time she would not arrive five minutes early was when she encountered poor weather, an accident, or another similar occurrence. Plaintiff Velma Tapia–Chavez testified that she generally arrived prior to her shift for the five-minute pre-shift period, that she sometimes arrived only three to four minutes before the beginning of her shift, and that on occasion, due to traffic or “life happening,” she arrived after the start of her shift. When working at a different site where she was not relieving an on-duty officer, Tapia–Chavez had to arrive prior to her shift because she was required to retrieve the facility keys from the administrate office and to have two sets of doors unlocked by the start of her shift, a process which took her five to ten minutes.

Certain Plaintiffs were never late and would arrive more than five minutes prior to the start of their shifts. Plaintiff Rick Walker testified that he was never late and that he arrived 20 minutes early in order to fulfill his obligation to follow the SOP that required him to arrive five minutes early and because it was his personal preference to arrive to work early. Plaintiff William Rogers testified that he never arrived late and was generally ten to fifteen minutes early because he wanted to make sure he arrived on time even if he encountered car problems. Plaintiff Max Herrera testified that he arrived ten minutes prior to his shift time, that he was informed by his supervisor that he should arrive five to seven minutes early consistent with the SOP, and that he endeavors to follow his supervisors' orders. On the occasions when the City would inform him of a change to his assigned post after he already was en route to work, Plaintiff Herrera might not arrive ten minutes early but he nonetheless would arrive “prior to the start of the shift.”

The amount of time the actual briefing took varied based upon the activity occurring during the prior shift. Plaintiff Rogers testified that sometimes briefing took as little as two to three minutes. Plaintiff Paez testified that sometimes there was “very little information being exchanged” during the briefing period. Plaintiff Yolanda Moreno testified that she sometimes would have social conversations during the briefing period.

Security Chief Shepherd testified that “[o]fficers, if they arrive early, do so to relieve the on duty security officer who then leaves (often prior to the end of the shift) but is paid to the end of the shift.... Officers who arrive early are often relieved early themselves and thus leave before the end of the shift but are paid to the end of the shift.” As an example, Chief Shepherd testified that Lieutenant Fred Mollerud reported that Plaintiff Walker often leaves his duty post up to twenty minutes before the end of shift once Walker has been relieved.

The SOPs specifically state that security officers must comply with SOP provisions. Plaintiff Brubach, however, testified that “there are things in the SOP that are antiquated and no longer followed.” For example, the same SOP that indicates that security officers should arrive five minutes early also requires that all time be reported. Plaintiffs, however, generally did not record the five-minute time period prior to their shift time. Plaintiff Walker testified that he specifically was told by Sergeant Gerlene Sams that he should only record his shift time and that he should not record the five minutes. Plaintiff Tapia–Chavez testified that she did not record the pre-shift time because “[w]e were never informed it, and it was just—it was just policy and the SOP that they gave us when we started, to be early, and we were never to be compensated for it as far as that was the understanding.” Plaintiff Thelma West testified that when she asked about recording the five minutes, noting that it amounted to 50 minutes of overtime per pay period, Sergeant Cooney informed her she was at work only to be briefed and that she would be paid only for her shift time. Plaintiff Donna Brubach testified that she had been told that she would not be paid for the extra five minutes, so she did not write it down.

Defendant did not pay Plaintiffs for arriving five minutes prior to the start of their shift time. Although Defendant maintains no security officer has asked to be paid for arriving five minutes early or complained under the union grievance procedure or otherwise about not being paid for arriving prior to shift time, Plaintiff Michael Moreno testified that he told his Sergeant, “Well, you are requiring ... that we come in five minutes earlier. Do you understand you are supposed to be paying us for this?” Likewise, Plaintiff West testified that she told her Sergeant that the unrecorded time amounted to 50 minutes of unpaid overtime per pay period.

Although City security guards generally are paid for one, 30–minute meal period per shift, the meal periods are not consistently provided. Plaintiff Tapia–Chavez testified that while she generally takes a lunch break between three and four times a week, on busy weeks she is not able to take a break at all. Plaintiff Michael Moreno testified that he was interrupted on his lunch break “quite a few times,” but that there were times when he was not interrupted. Plaintiff Walker, the union President, testified that his meal periods were interrupted less than once a week.

Plaintiffs testified that they often take their meal breaks in the office. Plaintiff Walker testified that at one facility security officers...