Espinoza v. Cnty. of Fresno, Case No. 1:07-cv-01145-SMS
| Decision Date | 23 March 2013 |
| Docket Number | Case No. 1:07-cv-01145-SMS |
| Parties | JUAN ESPINOZA, PAUL MARQUEZ, AARON EPPERLY and ERIC SCHMIDT, Plaintiffs, v. COUNTY OF FRESNO, Defendant. |
| Court | U.S. District Court — Eastern District of California |
Plaintiffs are deputy sheriffs with the Fresno County Sheriff's Department. They pursue this collective action against the County of Fresno under the Fair Labor Standards Act, 29 U.S.C. §§ 201-19 (2012) (FLSA), alleging that they were not compensated for overtime required of them by the County. On August 3, 2011, the Court granted summary judgment for Defendant on the claims relating to donning and doffing; commute time; vehicle maintenance; and meal breaks. Doc. 156. The surviving claims are for (1) maintenance of uniforms; (2) maintenance of safety equipment; (3) maintenance of firearms (which Defendant subdivides into quarterly and more-than-quarterly); and (4) qualifying of firearms. Doc. 169.
Before the Court is Defendant's motion to decertify the collective action pursuant to 29 U.S.C. § 216(b). The issue presented is whether Plaintiffs are "similarly situated," such that the four named Plaintiffs may testify representatively for the additional 200 sheriff's deputies who have opted into this suit. 29 U.S.C. § 216(b); Henderson Decl. ¶2-3; George Decl. ¶4.
The Court finds that Plaintiffs are not similarly situated with respect to their remaining claims. These arise out of disparate factual and employment settings, rebutting them will require individual defenses, and the interests of justice and judicial efficiency will be frustrated if these claims proceed on a collective basis. Accordingly, Defendant's motion to decertify the collective action is GRANTED in full.
The Fresno County Sheriff's Department has approximately 1,000 employees, of whom approximately 380 are deputy sheriffs. Mims Decl. ¶3. The bureaus relevant to this action are the Patrol Bureau, the Detective Bureau, and the Court and Administrative Services Bureau. Id.
Under Defendant's written overtime policy, overtime is only to be used when reasonably necessary for: (1) special assignments; (2) emergency situations; (3) casual overtime with prior approval; and (4) administrative overtime with prior approval. Fresno County Sheriff's Department Policies and Procedures ("P&P") No. 604. Under this policy, overtime must generally be pre-authorized by a supervisor. Id. Further, it is the deputy's responsibility to report all hours actually worked, including overtime. Id. Sheriff's Department employees are encouraged to complete their tasks within the hours provided during their regularly scheduled shifts; unnecessary overtime is to be avoided. Mims Decl. ¶6.
Defendant requires its deputies to qualify their duty weapons quarterly. Mims Decl. ¶9, Ex. B. As part of weapons qualifications, deputies perform a shooting test. Mims Depo. 84:12-16; Bewley Depo. 53:18-54:3. If the deputy passes, she is released to clean her weapon. Mims Depo. 86:18-20; Broughton Depo. 29:19- 21; Deimerly Depo. 124:10-15; Epperly Depo. 26:8-18; Espinoza Depo 37:13-15. If the deputy fails, she is provided on-the-spot training and then given another opportunity to qualify. Mims Depo. 84:17-23.
Defendant instructs deputies to schedule these weapons qualifications during on-duty time. Bewley Depo. 54:7-9; Broughton Depo. 29:12-21; Capriola Depo. 82:1-5. There is on-duty time to qualify and clean, whenever deputies can "fit it in." Schmidt Depo. 42:01-43:2. For a variety of reasons, however, deputies' assignments sometimes prevent them from doing so. The procedurevaries slightly between patrol deputies and courtroom deputies. Patrol deputies are apparently assigned a day to qualify. Espinoza Dep. 47:12-21. Deputy Espinoza, who has been a patrol deputy in the past, sometimes had difficulty qualifying on his assigned day. This could be due to his working a graveyard or swing shift, shortages of manpower, or calls for service. Id. By contrast, courtroom deputies are not assigned a day for qualifying, but are responsible to find time to qualify and to arrange for another deputy to cover their duties while they qualify. Marquez Depo. 30:13-19; Deimerly Depo. 117:20-118:3. Deputy Marquez, a courtroom deputy, states that it is nevertheless hard for him to find time to qualify during the workday. Although he has qualified during the workday, he points to short-staffing in the courts as a reason why, on two or three occasions, "there was no way to get off" and he had to qualify after hours. Marquez Depo. 31:8-12.
Technically, Defendant's written policies allow for weapons qualification to be done on overtime. Under the written overtime policy for "other necessary activities," if a deputy's schedule is such that she legitimately cannot qualify during her shift, she may do so on overtime if she receives supervisor approval.1 This policy gives complete discretion to supervisors, and Defendant is vague as to how its supervisors exercise that discretion. Defendant does not "generally" approve overtime for qualifying. Horton Depo. (Vol. II) at 243:25-244:2. However, requests are approved on a depending on the reason for the request; there have been "people" for whom this has been permitted "in the past." Mims Decl. ¶10; Horton Depo. Vol. 2, 246:14-16; Dadian Depo. 74:17-75:9. Also, Defendant is vague as to how supervisors communicate to deputies how they will exercise that discretion. According to one captain, this communication is informal; deputies must ask their sergeant, or learn through time, experience, and training, or "basically know." Horton Depo. Vol. 2, 246:4-14.
Plaintiffs point to evidence that, in fact, supervisors are denying overtime for weapons maintenance across-the-board. Sergeant Frances Devins was heard instructing courtroom deputies that "overtime is not authorized for [firearms] qualifications." Deimerly Depo., 116:18-21. The lead range master, Vincent Frascona, "estimate[s] that at least 20-30 Deputies per quarter show up ontheir own time (off-the-clock) for their quarterly qualification procedure." Frascona Decl. ¶5. Frascona states that this fact is known to the "prior and current" Lieutenants who have responsibility for the range, meaning at least the current Lieutenant and his predecessor. Id.2 Frascona shared his estimate with Neil Dadian, now a Captain, who at that time was the Lieutenant responsible for the shooting range. In speaking with Dadian, Frascona specifically raised "the question of officers qualifying off-duty and concerns I had about that process." According to Frascona, Dadian responded with words to the effect that, "[I]f that's what they want to do we don't have a problem with it as long as they don't put in for overtime." Frascona Decl. ¶5. Frascona's declaration thus suggests that now-Captain Dadian has been informed of the rate of overtime qualification. And (notwithstanding Defendant's view that Captain Dadian was only referring to deputies who "want to" qualify off-duty) Frascona's declaration also suggests that Captain Dadian believes that overtime should not be paid for after-hours weapons maintenance.3
Out of the ten Plaintiffs deposed, three testified that they qualified their duty weapons exclusively on County time. Schmidt Depo. 42: 10-43:2; Fullenkamp Depo. 75:16-76:18; Bewley Depo. 51:25-55:14. Three qualified off-duty, but did so out of personal preference. Broughton Depo. 32: 12-20; Epperly Depo. 6 24:18-26:1; Richardson Depo. 66:14-68:19. The remaining four deputies qualified off-duty because they felt they had to. The common and prominent reason that they each provide is that they were unable to obtain relief, which they attributed to a shortage of manpower. Marquez Depo. 30:25-31: 17; Espinoza Depo. 47:7-25; Deimerly Depo. 114:25-115: 13; Capriola Depo. 81:21-13 82:20. Out of 196 total non-representative Plaintiff's declarations, 122 (or 63%) make no claim for off-the-clock weapons qualification. Of those who do, 34 (or 43% of the total sample) qualified off-the-clock three or fewer times during the four-year period covered by the declarations, or less than once per year. Littlewood Decl. ¶27.
Defendant points out that the deputies who are now suing to be compensated for off-duty weapons qualification did not previously submit this work in their timesheets. Plaintiffs counter that requesting overtime for this activity would have been a futile exercise. For example, Deputy Marquez stated that although he never explicitly sought or was told not to seek overtime, Marquez Depo. 30:4-32:19. Deputy Deimerly stated that he recalled hearing from someone that he could not receive overtime for qualifying, though he could not remember who that person was. Deimerly Depo. 115:19-25.
Immediately after a deputy qualifies his weapon, he is required to clean his weapon. Mims Decl. ¶18. A deputy is thus explicitly required to clean his weapon four times a year.
To the extent that the deputy has qualified his weapon on County time, this postqualification cleaning is also done on County time. Bewley Depo. 54:21-55:4; 55:11-14; Broughton Depo. 29:12-21; Dadian Depo. 69:22-25. Conversely, when a deputy does his quarterly qualification off-the-clock, he does his quarterly cleaning off-the-clock. Plaintiffs seek compensation for any quarterly weapon cleaning done off-the-clock.
Defendant does not have a policy requiring deputies to clean their weapons at times other than in connection with their quarterly qualifications. Frascona Decl. 2:8-10. However, Defendant requires that officers maintain their firearms in a fully operational condition. P&P No. 308 III(C). The lubricants in weapons tend to attract dirt, and Plaintiffs state that it...
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