Nigg v. U.S. Postal Serv.
| Decision Date | 07 October 2011 |
| Docket Number | No. SACV 03–01611–JVS (ANx).,SACV 03–01611–JVS (ANx). |
| Citation | 829 F.Supp.2d 889 |
| Court | U.S. District Court — Central District of California |
| Parties | Robert NIGG, et al. v. U.S. POSTAL SERVICE, et al. |
OPINION TEXT STARTS HERE
Daniel A. Osborn, Adrianne Joy Leven, Osborn Law, P.C., New York, NY, Jeffrey C. Bogert, Jeffrey C. Bogert Law Offices, Santa Monica, CA, Roni Dersovitz, Englewood, NJ, John Joseph Beins, Beins Goldberg & Hennessey LLP, Chevy Chase, MD, for Robert Nigg, et al.
Jason K. Axe, Joanna Berney Hull, AUSA–Office of the U.S. Attorney, Los Angeles, CA, for U.S. Postal Service, et al.
Proceedings: (In Chambers) Order Granting in Part and Denying in Part Defendant's Motion for Summary Judgment (fld 9–2–11) and Denying Plaintiffs' Motion for Summary Judgment (fld 9–2–11)
Defendant United States Postal Service (“the Postal Service”) moves for summary judgment pursuant to Federal Rule of Civil Procedure 56. Plaintiffs Robert Nigg (“Nigg”) and Keith Lewis (“Lewis”), acting on behalf of current and former postal inspectors (collectively, “the Inspectors” or “Postal Inspectors”), cross-move for summary judgment pursuant to Federal Rule of Civil Procedure 56. The Inspectors oppose the Postal Service's motion and the Postal Service opposes the Inspectors' motion.1 For the following reasons, the Postal Service's motion is GRANTED IN PART AND DENIED IN PART and the Inspectors' motion is DENIED.
Nigg and Lewis, retired postal inspectors, bring this action on behalf of similarly situated current and former postal inspectors.2 They allege that the Inspectors are entitled to overtime pay under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et al. The Postal Service does not pay the Inspectors FLSA overtime, maintaining that the statute governing their pay, 39 U.S.C. § 1003(c), precludes overtime pay and, in the alternative, that the Inspectors are exempt from overtime pay under the FLSA.
This case is on remand from the Ninth Circuit. The Court had originally granted summary judgment in favor of the Postal Service on the grounds that 39 U.S.C. § 1003(c) gives the Postal Service discretion to provide “availability pay” rather than FLSA overtime. Section 1003(c) requires Postal Inspectors to be paid “on a standard of comparability to the compensation and benefits paid for comparable levels of work in the executive branch of the Government outside the Postal Service.” In granting summary judgment, the Court had noted that Postal Inspectors are comparable to certain other federal law enforcement officers that receive availability pay under the Law Enforcement Availability Pay Act (“LEAP”), Pub.L. No. 103–329 § 633, 108 Stat. 2382 (1994), codified at 5 U.S.C. § 5545a.
The Ninth Circuit reversed on the grounds that the Court had not considered whether other executive branch employees, such as Customs Officers, uniformed Secret Service officers, or U.S. Park Police officers, (1) perform work that is comparable to the work performed by the Inspectors, and (2) are eligible for FLSA overtime. Nigg v. U.S. Postal Serv., 555 F.3d 781, 788 (9th Cir.2009). The Ninth Circuit remanded with instructions to consider this issue. Id. at 790.
On remand, the Postal Service moved for summary judgment on the grounds that there is no genuine issue of fact that there are no other executive branch employees who perform comparable work that are eligible for FLSA overtime. The Court denied the motion, concluding that a genuine issue of fact remained as to whether Federal Air Marshals, who are eligible for FLSA overtime, perform a level of work comparable to that of the Inspectors. (Docket No. 259.) The Postal Service moved for reconsideration of the Court's order denying summary judgment (Docket No. 262) and the Inspectors cross-moved for summary judgment on the issue of comparability (Docket No. 264). The Court denied both motions. (Docket No. 279 at 12.)
The Postal Service now moves for summary judgment on the grounds that it is not liable to the Inspectors under the FLSA's administrative exemption, the FLSA's highly compensated employee exemption, and a good faith affirmative defense. The Inspectors move for summary judgment on the grounds that they are entitled to overtime pay under section 207(a)(1) the FLSA, neither of the exemptions identified by the Postal Service apply, and the Postal Service is not entitled to a good faith defense.
Summary judgment is appropriate only where the record, read in the light most favorable to the nonmoving party, indicates that “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323–24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary adjudication, or partial summary judgment “upon all or any part of a claim,” is appropriate where there is no genuine issue of material fact as to that portion of the claim. Fed.R.Civ.P. 56(a), (b); see also Lies v. Farrell Lines, Inc., 641 F.2d 765, 769 n. 3 (9th Cir.1981) () (internal quotation marks omitted).
Material facts are those necessary to the proof or defense of a claim, and are determined by reference to substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 322, 106 S.Ct. 2548. A fact issue is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. To demonstrate a genuine issue, the opposing party Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586–87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (internal quotation marks and citations omitted). In deciding a motion for summary judgment, “[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255, 106 S.Ct. 2505. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F.Supp. 1224, 1244–45 (E.D.Cal.1985), aff'd, 810 F.2d 898, 902 (9th Cir.1987).
The burden initially is on the moving party to demonstrate an absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. If the moving party meets its burden, then the nonmoving party must produce enough evidence to rebut the moving party's claim and create a genuine issue of material fact. See id. at 322–23, 106 S.Ct. 2548. If the nonmoving party meets this burden, then the motion will be denied. Nissan Fire & Marine Ins. Co. v. Fritz Co., Inc., 210 F.3d 1099, 1103 (9th Cir.2000).
Where the parties have made cross-motions for summary judgment, the Court must consider each motion on its own merits. Fair Hous. Council of Riverside Cnty., Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir.2001). The Court will consider each party's evidentiary showing, regardless of which motion the evidence was tendered under. See id. at 1137.
The FLSA provides that “no employer shall employ any of [its] employees ... for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of [forty hours] at a rate not less than one and one-half times the regular rate at which he is employed.” 29 U.S.C. § 207(a)(1). The Inspectors are covered by the FLSA. See 29 U.S.C. §§ 203(e)(2)(B), 203(x). The Inspectors are required to work an average of fifty hours per week. (Docket No. 312, Attachment 27 (“Lewis Decl.”) ¶ 4; Docket No. 312, Attachment 28 (“Nigg Decl.”) ¶ 4.) For the hours they must work in excess of forty hours per week, the Inspectors are compensated at their regular rate of pay, not at one and one-half times their regular rate. (Lewis Decl. ¶ 7; Nigg Decl. ¶ .) These facts are undisputed.
The Postal Service argues that the Inspectors are exempt from overtime wages under the FLSA's administrative exemption and highly compensated employee exemption. The Postal Service also argues that even if the Inspectors are entitled to overtime wages under the FLSA, it is entitled to a good faith defense to liability under the Portal–to–Portal Act of 1947, 29 U.S.C. § 259. The Postal Service argues that it is therefore entitled to summary judgment.
The Inspectors argue that neither the administrative exemption nor the highly compensated employee exemption applies and that the Postal Service is not entitled to a good faith defense to liability under the Portal–to–Portal Act. The Inspectors therefore argue that they are entitled to summary judgment.
Although 29 U.S.C. § 207(a)(1) provides for overtime wages, the FLSA imposes the following administrative exemption: “section 207 of this title shall not apply with respect to any employee employed in a bona fide ... administrative ... capacity.” 29 U.S.C. § 213(a)(1). “The FLSA delegates to the Secretary of Labor broad authority to define and delimit the scope of the administrative exemption.” In re Farmers Ins. Exch., Claims Representatives' Overtime Pay Litig., 481 F.3d 1119, 1127 (9th Cir.2007) (internal quotation marks and brackets omitted) (citing 29 U.S.C. § 213(a)(1)). In accordance with that duty, the Secretary has formulated the “short duties” test, id., which provides that the administrative exemption applies to any employee:
(1) Compensated on a salary or fee basis at a rate of not less than $455 per week...
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