Mortensen v. County of Sacramento

• Decision Date: 24 May 2004
• Docket Number: No. 03-15185.,03-15185.
• Citation: 368 F.3d 1082
• Parties: Ronald MORTENSEN, Plaintiff-Appellant, v. COUNTY OF SACRAMENTO, Defendant-Appellee, and Voluntary Dispute Resolution Neutral, Defendant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1082

368 F.3d 1082

Ronald MORTENSEN, Plaintiff-Appellant, v. COUNTY OF SACRAMENTO, Defendant-Appellee, and Voluntary Dispute Resolution Neutral, Defendant.

No. 03-15185.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 9, 2004.

Filed May 24, 2004.

David E. Mastagni; Adam J. Krolikowski, Mastagni, Holstedt & Amick, Sacramento, CA, for the plaintiff-appellant.

Terence J. Cassidy, John R. Whitefleet, Porter, Scott, Weiberg & Delehant, Sacramento, CA, for the defendant-appellee.

Appeal from the United States District Court for the Eastern District of California, Garland E. Burrell, District Judge, Presiding. D.C. No. CV-01-00782-GEB.

Before: SCHROEDER, Chief Judge, TALLMAN, and CALLAHAN, Circuit Judges.

TALLMAN, Circuit Judge:

Sacramento County Sheriff's Deputy Ronald Mortensen appeals the district court's grant of summary judgment in favor of his employer. The question for decision is whether the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 207(o), requires the county to allow its deputies to use accrued compensatory time off ("CTO") on days they specifically request unless it would "unduly disrupt" the law enforcement agency's function within the meaning of § 207(o)(5).¹ Mortensen argues that we must defer to the Department of Labor regulations and opinion letter construing § 207(o)(5) and hold that deputies are entitled to use CTO on a specifically requested date. In contrast, the county maintains that its leave policy and the parties' collective bargaining agreement ("Agreement") comply with the FLSA because the county grants CTO use within a reasonable time — up to one year — after a deputy makes a request. The county insists that under both the statute and its long-established leave practice, it may deny a CTO request for a specific date if all leave openings are full.

We do not defer to the Department of Labor regulations because the statutory language is clear. Joining the Fifth Circuit, we hold that the text of § 207(o)(5) unambiguously states that once an employee requests the use of CTO, the employer has a reasonable period of time to grant the request. See Houston Police Officers' Union v. City of Houston, 330 F.3d 298 (5th Cir.2003), cert. denied, 540 U.S. 879, 124 S.Ct. 300, 157 L.Ed.2d 143 (2003). The statutory language precludes an employee from forcing an employer to grant CTO in accordance with the employees' wishes. See id. at 303. We further hold that the county's implementation of its leave policy, which may result in denying a specific request when there are no available leave openings, and the parties' Agreement regarding CTO use are consistent with § 207(o)(5). We affirm summary judgment for the county.

I

The Sacramento County Deputy Sheriffs' Association and the county entered into the Agreement pursuant to the FLSA.² The Agreement specifically states that overtime is discouraged. Art. 6.1(a). However, Article 6.1(b) provides that employees may accept CTO instead of cash compensation for any overtime that they work. Article 6.1(b)(4)-(5) further provides how CTO must be used or cashed out:

* * *

4. If the department is unable to schedule and grant the time off within one year, cash payment shall be made in lieu of compensating time.

5. Compensatory Time Off shall be used within one year from the time overtime was performed. If the department is unable to schedule and grant the time off within one year, cash payment shall be made in lieu of compensating time.

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Sacramento County Sheriff's Department General Order 15/02 provides:

Division Commanders shall schedule CTO consistent with the department's operational requirements. This scheduling authority is delegated down to and including first line supervisors, subject to division commander's concurrence. CTO not used within one year from the date earned shall be paid off in cash in lieu of time off.

Deputy Mortensen is employed at the Rio Consumnes Correction Center. At all relevant times, the Center maintained a specific practice for scheduling leave. The Administrative Sergeant, who is the "first-line supervisor" for a shift, maintains a leave book showing the number of employees who are scheduled for leave each day. The leave book has a predetermined number of available leave slots that are used to schedule all future requests for time off, including CTO. Typically, there are three leave slots available on weekdays and four leave slots available on weekends. The county set the number of leave slots to comply with the Center's minimum staffing requirements, or roughly 80% of full jail staff, depending on the shift or area to be staffed.³

Sacramento County asserts that the leave books serve the following purposes: maintaining proper staffing for shifts, ensuring safe and proper scheduling of personnel, attempting to stay within departmental budgets by minimizing excess overtime compensation, and avoiding excessive accrual of CTO time throughout the department. If a deputy requests CTO on a day when the leave book slots are full, the county will deny the request regardless of the availability of another deputy willing to work overtime. Mortensen claims, and the county does not dispute, that in most cases there are deputies willing to work an overtime shift if they are given notice 24 hours in advance.

On February 26, 2001, Mortensen submitted a request to use 12 hours of CTO on "March 11, 2001 only." The request was denied because the leave book was full for that day. Mortensen did not informally appeal. At the time of his CTO request, there were eighteen alternate days with open leave slots available in the period between February 26, 2001, and April 22, 2001.

Mortensen sued for injunctive relief, alleging that the county's policy governing deputies' use of CTO violates § 207(o )(5) of the FLSA. Mortensen contends that the county must grant his request to use CTO on a specific date unless the county shows that the request would unduly disrupt its operations. He asserts that the availability of qualified substitute staff with 24 hours' notice renders any request to use CTO made more than 24 hours in advance of the intended use date "reasonable" under the statute. The county contends that neither the Agreement nor the FLSA give an employee unilateral discretion to schedule CTO.

On cross-motions for summary judgment, the district court granted the county's motion, finding that both the practice of maintaining a leave book and the Agreement's provision requiring CTO use to be scheduled within one year are consistent with the Department of Labor ("DOL") regulations. The district court concluded that summary judgment was appropriate because Mortensen did not present evidence that the county failed to comply with its leave book policies, or failed to grant CTO use within one year.

II

A

The county contends that Mortensen lacks standing because he has not alleged any injury. It also asserts that Mortensen has not shown a significant possibility of future harm, which is required to seek injunctive relief. We review de novo a district court's determination that a particular party has standing. Fair Housing of Marin v. Combs, 285 F.3d 899, 902(9th Cir.2002).

There are three requirements for Article III standing. First, Mortensen must have suffered an injury in fact. Second, he must show a causal relationship between the injury and the challenged conduct. Third, there must be a likelihood that his injury will be redressed by a favorable decision from the court. See Bras v. Cal. Pub. Utils. Comm'n, 59 F.3d 869, 872 (9th Cir.1995). Moreover, Mortensen must show "a very significant possibility of future harm" because he seeks injunctive relief. Id. at 873. It is insufficient to demonstrate only a past injury. Id. If Mortensen is legally entitled to use his CTO on a date he specifically requests, he has alleged an injury sufficient to confer standing. Mortensen's request to use CTO on a specific date was denied. No one disputes that in the 60-day period after Mortensen's request only 18 days were available to use CTO. Considering that 42 days of a 60-day period were not available, there is a significant possibility that Mortensen could suffer the same injury again. Mortensen alleges that the county denied his request in violation of the FLSA and the district court has the ability to redress his alleged injury by issuing injunctive relief; thus, the district court properly determined that Mortensen has standing to challenge the county's policy. See Does I Thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1070 n. 12 (9th Cir.2000).

B

Mortensen contends that under the FLSA, 29 U.S.C. § 207(o )(5), and its accompanying regulations, the county is required to allow him to use accrued CTO on days he specifically requests, unless the county shows that granting the request would "unduly disrupt" the operation of the Sheriff's Department. The county responds that the FLSA and the Agreement do not allow an employee unfettered discretion in scheduling his CTO. Thus, we must determine the correct interpretation of § 207(o )(5), and whether the county properly applies the statute to its operations.

We review de novo the district court's grant or denial of a motion for summary judgment. Hargis v. Foster, 312 F.3d 404, 409 (9th Cir.2002). Viewing the evidence in the light most favorable to Mortensen, we must determine whether any genuine issues of material fact exist and whether the district court properly applied the substantive law. Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir.2001) (en banc). We also review de novo a district court's interpretation of the FLSA. Collins v. Lobdell, 188 F.3d 1124, 1128(9th Cir.1999).

Under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), we address two questions when construing a federal statute that has been interpreted by an agency. Id. at 842, 104 S.Ct. 2778. First, we determine whether Congress...