Bustillos v. Bd. of Cnty. Comm'rs of Hidalgo Cnty.

Decision Date20 October 2015
Docket NumberNo. CIV 13-0971 JB/GBW,CIV 13-0971 JB/GBW
PartiesMADONNA BUSTILLOS, FRANCISCO CONTRERAS, CONCEPCION T. HERNANDEZ, MARTHA S. JIMENEZ and AMANDA VOGELSANG-WOLF, on behalf of themselves and all others similarly situated, Plaintiffs, v. BOARD OF COUNTY COMMISSIONERS OF HIDALGO COUNTY, Defendant.
CourtU.S. District Court — District of New Mexico
MEMORANDUM OPINION1

THIS MATTER comes before the Court on Defendant Board of County Commissioners of the County of Hidalgo's Motion and Memorandum for Summary Judgment on All of Plaintiff Amanda Vogelsang-Wolf's Claims, filed November 12, 2014 (Doc. 41)("MSJ"). The Court held a hearing on April 29, 2015. The primary issues are: (i) whether Plaintiff Amanda Vogelsang-Wolf has produced evidence from which the Court can draw a reasonable inference of the uncompensated hours she worked; (ii) whether Hidalgo County had actual or constructive knowledge that Vogelsang-Wolf performed uncompensated work; (iii) whether Vogelsang-Wolf's pre- and post-shift work is compensable under the Fair Labor Standards Act of 1938, 29 U.S.C. §§ 201-219 ("FLSA"); (iv) whether Vogelsang-Wolf's pre- and post-shift work is de minimis under the FLSA; (v) whether Vogelsang-Wolf's on-call work is compensable under theFLSA; (vi) whether Vogelsang-Wolf can use § 50-4-2(b) of the New Mexico Statutes to sue a public employer; (vii) whether Vogelsang-Wolf's implied-contract claim can prevail when federal and state statutes form the basis of the contract; and (viii) whether Vogelsang-Wolf's unjust-enrichment claim can proceed when Vogelsang-Wolf has other legal remedies available. The Court grants the MSJ as to Count Two of the Complaint for Violations of the Fair Labor Standards Act, State Wage and Hour Laws, Breach of Contract and Unjust Enrichment Collective Action Complaint (29 U.S.C. § 216(b)), filed October 8, 2013 (Doc. 1), because: (i) Vogelsang-Wolf does not present sufficient evidence to meet her burden of proof under the FLSA concerning the number of overtime hours worked; (ii) the FLSA does not, as a matter of law, require Hidalgo County to compensate Vogelsang-Wolf for her pre- and post-shift work, but her pre-shift briefings may be compensable; (iii) the FLSA does not require Hidalgo County to compensate Vogelsang-Wolf for her pre- and post-shift work, because the work is de minimis; and (iv) the FLSA does not require Hidalgo County to compensate Vogelsang-Wolf for her on-call work. The Court therefore grants the MSJ as to the Plaintiffs' federal claims in Count Two. The Court declines to exercise supplemental jurisdiction over Vogelsang-Wolf's state law claims and therefore dismisses Counts One, Three, and Four without prejudice.

FACTUAL BACKGROUND

Vogelsang-Wolf and the other proposed class members are correctional officers, sergeants, and lieutenants at the Hidalgo County Detention Center in Lordsburg, New Mexico. See Complaint ¶ 1, at 1-2; id. ¶¶ 8-10, at 2-3. Vogelsang-Wolf's duties included "supervisory duties relating to the entry, incarceration, safety and release of persons committed to the Detention Center." MSJ ¶ 3, at 2 (setting forth this fact). See Response ¶ 3, at 1 (not disputing this fact). At the beginning of each shift, detention officers met in the control room to conduct abriefing, check equipment, account for keys, and document the pass-down log. See MSJ ¶ 11, at 3 (setting forth this fact); Response ¶ 11, at 2 (not disputing this fact). Employees kept time sheets to record the time that they worked. See MSJ ¶ 13, at 3 (setting forth this fact); Response ¶ 13, at 2 (not disputing this fact). The log documented when some employees arrived early or late, but it did not document "the arrival and departure of every employee on every shift." Response ¶ 12, at 2 (not disputing this fact). See MSJ ¶ 12, at 3 (setting forth this fact). The log "is an unreliable gauge of the exact start times of Plaintiff Wolf or every other detention employee." Response ¶ 12, at 2.

Vogelsang-Wolf's typical shift was from 7:00 a.m. to 7:00 p.m. See MSJ ¶ 10, at 3 (setting forth this fact); Response ¶ 10, at 2 (not disputing this fact). Hidalgo County did not have a written policy requiring employees to arrive early. See Response ¶ 1, at 5 (setting forth this fact); Defendant Hidalgo County's Reply in Support of Motion for Summary Judgment on Plaintiff Amanda Vogelsang-Wolf's Claims ¶ 1, at 5, filed January 9, 2015 (Doc. 51)("Reply")(not disputing this fact). Employees discovered that they should arrive early for briefings by "word of mouth" and "common knowledge." Response ¶ 1, at 5 (setting forth this fact). See Reply ¶ 1, at 5 (not disputing this fact). The briefings lasted from two to fifteen minutes "depending on what happened." MSJ ¶ 15, at 3-4 (setting forth this fact). See Response ¶ 15, at 3 (not disputing this fact). Even when the briefings began before the shift, Hidalgo County compensated officers when their shift began. See MSJ ¶¶ 14-15, at 3-4 (setting forth this fact); Response ¶¶ 14-15, at 3 (not disputing this fact). Detention Center Director Dolly Ward acknowledged that outgoing and incoming shifts overlap. See Response ¶ 5, at 5 (setting forth this fact); Reply ¶ 5, at 6 (not disputing this fact).

"Vogelsang-Wolf arrived to work early in the 'beginning' of her employment with Hidalgo County." MSJ ¶ 17, at 4 (setting forth this fact).2 Hidalgo County did not discipline any employees for not arriving early to their posts. See Response ¶ 16, at 3.3 Employees could be disciplined for arriving late. See Response ¶ 7, at 5 (setting forth this fact); Reply ¶ 7, at 6 (not disputing this fact).

Hidalgo County never advised Vogelsang-Wolf to inaccurately report her time. See MSJ ¶ 21, at 4 (setting forth this fact); Response ¶ 21, at 3 (not disputing this fact). She alwaysaccurately recorded her time "to the minute." MSJ ¶ 19, at 4 (setting forth this fact). See Response ¶¶ 18-19 (not disputing this fact). Vogelsang-Wolf contends that, even though she always accurately recorded her time "to the minute," Hidalgo County would not pay her for time in which she participated in briefings before her shift began. Response ¶¶ 18-20, at 3. Hidalgo County implemented a rounding policy in which it would round the employee's work time to the nearest quarter of an hour on his or her time sheets. See MSJ ¶ 22, at 4 (setting forth this fact); Response ¶ 22, at 4 (not disputing this fact). Vogelsang-Wolf "submitted separate overtime sheets requesting compensation for overtime work she performed." MSJ ¶ 23, at 4 (setting forth this fact). See Response ¶ 23, at 4 (not disputing this fact). Throughout her employment, Hidalgo County may have rejected only one overtime request, which "may have been for 'like 15 minutes' or maybe it was not that much time.'" MSJ ¶ 24, at 4-5 (setting forth this fact)(quoting Vogelsang-Wolf Depo. at 73:13-74:13). See Response ¶ 24, at 4 (not disputing this fact). If Vogelsang-Wolf worked overtime, she "made sure" Hidalgo County compensated her for it. MSJ ¶ 25, at 5 (setting forth this fact). See Response ¶ 25, at 4 (not disputing this fact).

Vogelsang-Wolf was also "on call" during some of the time that she worked for Hidalgo County. Hidalgo County would place her and several other officers on call for a two-week rotation. See MSJ ¶ 26, at 5 (setting forth this fact); Response ¶ 26, at 4 (not disputing this fact). On-call periods prevented Vogelsang-Wolf from leaving town or drinking alcohol. See MSJ ¶ 27, at 5 (setting forth this fact); Response ¶ 27, at 4 (not disputing this fact). Vogelsang-Wolf could spend her on-call time at home; she did not need to be in or near the Detention Center. See MSJ ¶ 28, at 5 (setting forth this fact); Response ¶ 28, at 4 (not disputing this fact). When Vogelsang-Wolf was unavailable while on call, Hidalgo County did not formally discipline her. See MSJ ¶ 31, at 5 (setting forth this fact); Response ¶ 31, at 4 (not disputing this fact). WhenVogelsang-Wolf came to work during her on-call time, Hidalgo County compensated her for one full hour "whether she worked fifteen minutes or an hour." MSJ ¶ 32, at 5 (setting forth this fact). See Response ¶ 32, at 4 (not disputing this fact). When Vogelsang-Wolf helped resolve an issue over the telephone, Hidalgo County did not compensate her. See Response ¶ 13, at 6 (setting forth this fact); Reply ¶ 3, at 6 (not disputing this fact). In the five years in which Vogelsang-Wolf was on call, she estimates that she returned to work five to ten times. See MSJ ¶ 32, at 6 (setting forth this fact); Response ¶ 32, at 4 (not disputing this fact).

PROCEDURAL BACKGROUND

The Plaintiffs filed suit in federal court on October 8, 2013. See Complaint at 1. They allege four causes of action: (i) violation of the New Mexico state wage and hour laws, N.M. Stat. Ann. § 50-4-1 to -30, see Complaint ¶¶ 20-22, at 4; (ii) violations of the FLSA, see Complaint ¶¶ 23-27, at 4-5; (iii) breach of their employment contracts, see Complaint ¶¶ 28-31, at 5; and (iv) unjust enrichment, in the form of free hours worked, see Complaint ¶¶ 32-36, at 5-6. The Plaintiffs demand a jury trial, see Complaint ¶ 37, at 6, and ask that the case proceed as a "collective action" under 29 U.S.C. § 216(b), and that they receive compensatory and liquidated damages, including pre- and post-judgment interest, and costs and attorneys' fees, Complaint ¶¶ a-f, at 6.

The Plaintiffs filed a Motion to Certify Class on behalf of Plaintiffs Martha S. Jimenez and Amanda Vogelsang-Wolf on September 30, 2014. See Motion to Certify Class at 1, filed September 30, 2014 (Doc. 33)("Motion"). They requested that the Court "conditionally" certify Count II, the FLSA claim, as a collective action under 29 U.S.C. § 216(b) and that the Court certify the other three claims as a class action under rule 23(b)(3). Motion at 3, 7. The Court conditionally certified the case as a collective action under the FLSA's § 216(b). SeeMemorandum Opinion and Order, filed September 16, 2015 (Doc....

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