Bustillos v. Bd. of Cnty. Comm'rs of Hidalgo Cnty., CIV 13-0971 JB/GBW

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 Martha S. Jimenez's Claims, filed November 12, 2014 (Doc. 40)("MSJ"). The Court held a hearing on April 29, 2015. The primary issues are: (i) whether Plaintiff Martha S. Jimenez produced sufficient evidence to support a reasonable inference of the uncompensated hours she worked; (ii) whether Hidalgo County had actual or constructive knowledge that she performed uncompensated work; (iii) whether Jimenez' pre- and post-shift work is compensable under the Fair Labor Standards Act of 1938, 29 U.S.C. §§ 201-219 ("FLSA"); (iv) whether Jimenez' pre- and post-shift work is compensable under the FLSA as de minimis; (v) whether Jimenez' on-call work is compensable under the FLSA; (vi) whether the Plaintiffs can use § 50-4-2(b) of the NewMexico Statutes to sue a public employer; (vii) whether the Plaintiffs' implied-contract claim can prevail when federal and state statutes form the basis of the contract; and (viii) whether the Plaintiffs' unjust-enrichment claim can proceed when the Plaintiffs have 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)) ¶ 1, at 1-2, filed October 8, 2013 (Doc. 1), because: (i) Jimenez fails to present evidence to meet her burden of proof under the FLSA concerning the number of overtime hours worked; (ii) Jimenez' pre- and post-shift work is not compensable as a matter of law, as it was not integral and indispensable to Jimenez' principal activities; (iii) all of Jimenez' pre- and post-shift work except for transcribing notes into radio logs is not compensable as de minimis; and (iv) Jimenez' on-call work is not compensable under the FLSA. The Court therefore grants the MSJ as to the Plaintiffs' federal claims in Count Two. The Court declines to exercise supplemental jurisdiction over Jimenez' state law claims, and therefore dismisses Counts One, Three, and Four without prejudice.

FACTUAL BACKGROUND

Jimenez and other proposed class members are emergency dispatchers at the Hidalgo County Central Emergency Dispatch Center in Lordsburg, New Mexico. See Defendant Board of County Commissioners of the County of Hidalgo's Motion and Memorandum for Summary Judgment on All of Plaintiff Martha S. Jimenez's Claims ¶ 1, at 2, filed November 12, 2014 (Doc. 40)("MSJ")(setting forth this fact); Plaintiffs' Response to Defendant's Motion and Memorandum for Summary Judgment on All of Plaintiff Martha Jimenez's Claims ¶ 1, at 1, filed December 11, 2014 (Doc. 48)("Response")(not disputing this fact). They answer 911 calls and send law enforcement, medical, rescue, and fire personnel to assist callers. See Complaint forViolations 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)) ¶¶ 8-10, at 2-3, filed October 8, 2013 (Doc. 1)("Complaint"). As the Dispatch Center operates all day, and every day, a dispatcher must be present at all times. See MSJ ¶ 3, at 2 (setting forth this fact); Response ¶ 3, at 1 (not disputing this fact). Dispatchers are not allowed to leave their posts until the incoming employee for the next shift relieves them. See Complaint ¶ 11, at 3; Defendant's Answer to Plaintiff's 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)) ¶ 11, at 3, filed November 7, 2013 (Doc. 5)("Answer").

The Hidalgo County Policies and Procedures Manual ("Manual") states that dispatchers are expected to report to work five minutes before their shift. See Response ¶ 2, at 6 (setting forth this fact).2 Dispatchers may be subject to discipline for violating requirements in theHidalgo County Policies and Procedures Manual. See Response ¶ 3, at 6 (setting forth this fact); Defendant Hidalgo County's Reply in Support of its Motion for Summary Judgment on Plaintiff Martha Jimenez's Claims ¶ 3, at 1, filed January 9, 2015 (Doc. 52)("Reply")(not disputing this fact). Before taking over operations from the outgoing dispatcher, the incoming dispatcher must put on a headset, sign into radio logs3 and computer systems, check incoming NCIC files,4 review desk logs,5 and have a briefing with the outgoing dispatcher. See Response ¶ 4, at 7 (setting forth this fact).6

During the briefing, the outgoing dispatcher informs the incoming dispatcher "what was going on, what units they have going out, who is where, and what to expect." MSJ ¶ 10, at 3 (setting forth this fact). See Response ¶ 10, at 2 (not disputing this fact). Jimenez' pre-shift work took approximately five to ten minutes to perform. See MSJ ¶ 9, at 3 (setting forth this fact); Response ¶ 9, at 2 (not disputing this fact). After her shift, Jimenez would "sometimes stay beyond her scheduled shift, if necessary, until everybody was at what she calls a 'safe zone.' A 'safe zone' is when paramedics were treating a person, or there were officers on the scene." MSJ ¶ 11, at 3 (setting forth this fact). See Response ¶ 11, at 2 (not disputing this fact). Jimenez could not recall how often or how long her other colleagues worked past their shifts. See Response ¶ 10, at 8 (setting forth this fact).7

Hidalgo County instructed incoming dispatchers to record their time at the beginning of their shift or "whatever time [they] got in." MSJ ¶ 12, at 3 (setting forth this fact). See Response ¶ 12, at 2 (not disputing this fact). Jimenez "got the impression she would only be compensated for the time she was scheduled to work." MSJ ¶ 15, at 4 (setting forth this fact). See Response ¶ 15, at 2 (not disputing this fact). "It was Jimenez's responsibility to ensure the hours she worked were reported correctly." MSJ ¶ 40, at 7 (setting forth this fact). See Response ¶ 40, at 5 (not disputing this fact). Hidalgo County did not give her any documentation stating that she wouldnot be paid overtime if she worked over her scheduled shift. See MSJ ¶ 16, at 4 (setting forth this fact); Response ¶ 16, at 2 (not disputing this fact). Nevertheless, she believed that, "if she worked overtime hours, she would not be compensated for that time." MSJ ¶ 17, at 4 (setting forth this fact). See Response ¶ 17, at 2 (not disputing this fact). "Jimenez does not remember making an overtime request that was denied." MSJ ¶ 23, at 4 (setting forth this fact). See Response ¶ 23, at 3 (not disputing this fact).

"During the 'early' years of her employment with Hidalgo County, beginning in about 2005, [Jimenez] regularly worked 'two and a half hours' over her scheduled shift," because she was backlogged on recording the day's events into the radio logs. MSJ ¶¶ 24-25, at 5 (setting forth this fact). See Response ¶¶ 24, 25, at 3 (not disputing this fact). Jimenez' supervisor once told her that Hidalgo County would not compensate her for this time. See MSJ ¶ 25, at 5 (setting forth this fact); Response ¶ 25, at 3 (not disputing this fact). Jimenez could not recall how long she worked under these conditions. See MSJ ¶ 26, at 5 (setting forth this fact); Response ¶ 26, at 3 (not disputing this fact). She also could not recall whether she ever worked past her shift because she was backlogged in 2013. See MSJ ¶ 27, at 5 (setting forth this fact);8 Deposition ofMartha Jimenez at 59:1-11 (taken August, 19, 2014)(Jimenez, Padilla), filed November 12, 2014 (Doc. 40-1)("Jimenez Depo."). Moreover, Jimenez also could not recall working past her shift in 2012 or 2011. See MSJ ¶¶ 28, 29, at 5 (setting forth this fact); Jimenez Depo. at 59:5-16 (Jimenez, Padilla).9 Finally, Jimenez stated that she had no sense for the total amount of time she worked without compensation. See MSJ ¶ 41, at 7 (setting forth this fact).10

After taking a break, "when questioned by her attorney, Jimenez then testified that in 2011, 2012, and 2013 she recalled working an hour and a half to two hours over her shift." MSJ ¶ 30, at 5 (setting forth this fact). See Response ¶ 30, at 4 (not disputing this fact). To help her remember, Jimenez "said a little prayer to help remember stuff." MSJ ¶ 31, at 5-6 (setting forth this fact). See Response ¶ 31, at 4 (not disputing this fact). Jimenez then testified that in 2013, she "was not required to work beyond her scheduled shift." MSJ ¶ 33, at 6 (setting forth thisfact). See Response ¶ 33, at 4 (not disputing this fact). "Jimenez could not produce personal documentation of all hours of overtime worked." Response ¶ 32, at 4 (setting forth this fact).11

When incoming dispatchers were running late, the outgoing dispatcher would stay until the incoming dispatcher arrived. See MSJ ¶¶ 34-37, at 6 (setting forth this fact); Response ¶¶ 34-37, at 4-5 (not disputing this fact). In these circumstances, dispatchers who stayed late would be "relieved of equal time of work later in the same pay period." MSJ ¶ 34, at 6 (setting forth this fact). See Response ¶ 34, at 5 (not disputing this fact). For example, "if Jimenez worked nine hours, she would record nine hours on her time sheet. But then two or three days later, she would put in seven hours for that day because the person she was covering would come in an hour early for her." MSJ ¶ 35, at 6 (setting forth this fact). See Response ¶ 35, at 5 (not disputing this fact). If Jimenez arrived twenty minutes late, she would make up the twenty minutes at...

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