Roberts v. State

Decision Date02 March 2021
Docket NumberNo. 1 CA-CV 20-0060,1 CA-CV 20-0060
Citation483 P.3d 212,250 Ariz. 590
Parties Clinton ROBERTS, et al., Plaintiffs/Appellants, v. STATE of Arizona, Defendant/Appellee.
CourtArizona Court of Appeals

Napier, Coury & Baillie, P.C., Phoenix, By Michael Napier, Juliana B. Tallone, Counsel for Plaintiffs/Appellants

Arizona Attorney General's Office, Phoenix, By Kirstin Story, John Fry, Counsel for Defendant/Appellee

Judge Lawrence F. Winthrop delivered the opinion of the Court, in which Presiding Judge Jennifer B. Campbell and Chief Judge Peter B. Swann joined.


¶1 Clinton Roberts and Donna Christopher-Hall, on behalf of themselves and other similarly situated corrections officers ("the Officers"), filed a complaint alleging their employer, the State of Arizona, violated Arizona Revised Statutes ("A.R.S.") section 23-392 by failing to pay overtime compensation for time they were required to spend undergoing "extensive security screenings" for each shift. We hold that the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 207, does not preempt the Officers’ claim and that the Officers alleged sufficient facts to defeat a motion to dismiss for their overtime claim under applicable statutes and regulations. Accordingly, we reverse and remand for further proceedings.


¶2 The Officers work for the Arizona Department of Corrections. Before they begin a shift, they are required to undergo an "extensive security screening" that adds an average of thirty minutes to each eight-hour workday. The Officers allege A.R.S. § 23-392 requires the State to pay them overtime for the mandatory screening time and they seek treble damages under A.R.S. § 23-355.

¶3 The State moved to dismiss the complaint, arguing that claims for overtime pay must be brought under the FLSA, which the State contended preempts the state law claims. Alternatively, the State argued that the Arizona statute must be interpreted consistently with the FSLA, as amended by the Portal-to-Portal Act ("Portal Act"), 29 U.S.C. §§ 251 - 262, and relevant federal regulations, which the State contends render the screenings not compensable. The Officers countered that their state-law claim was not preempted because they cannot bring an FLSA claim against the State due to sovereign immunity. The Officers also argued that Arizona has not adopted the Portal Act, and, under Arizona's expansive definition of "work," the time spent in mandatory security screenings is compensable. While the motion to dismiss was pending, the Officers requested leave to file a second amended complaint to more accurately describe the class and assert a claim for an additional year of overtime.

¶4 The superior court granted the motion to dismiss, finding that although federal law did not preempt the Officers’ claim, Arizona had implicitly adopted the Portal Act. The court concluded, based on the Portal Act, the applicable regulations, and the Supreme Court decision in Integrity Staffing Solutions, Inc. v. Busk , 574 U.S. 27, 135 S.Ct. 513, 190 L.Ed.2d 410 (2014), that the time the Officers spend in security screenings is not compensable. The court denied the Officers’ motion to file a second amended complaint and motion for reconsideration. The Officers filed a timely notice of appeal, and we have jurisdiction under A.R.S. § 12-2101(A)(3).1


¶5 The dismissal of a complaint under Arizona Rule of Civil Procedure ("Rule") 12(b)(6) is reviewed de novo . Coleman v. City of Mesa , 230 Ariz. 352, 355, ¶ 7, 284 P.3d 863, 866 (2012). A complaint should be dismissed "under Rule 12(b)(6) only if ‘as a matter of law [ ] plaintiffs would not be entitled to relief under any interpretation of the facts susceptible of proof.’ " Id. at 356, ¶ 8, 284 P.3d at 867 (quoting Fid. Sec. Life Ins. Co. v. Ariz. Dep't of Ins. , 191 Ariz. 222, 224, ¶ 4, 954 P.2d 580, 582 (1998) ). In considering a Rule 12(b)(6) motion, "courts must assume the truth of all well-pleaded factual allegations and indulge all reasonable inferences from those facts, but mere conclusory statements are insufficient." Id. at ¶ 9.

I. Preemption

¶6 Under the FLSA, employers must pay employees a minimum wage and overtime compensation for each hour worked in excess of forty hours in one workweek. 29 U.S.C. §§ 206, 207 ; Busk , 574 U.S. at 31, 135 S.Ct. 513. Arizona law similarly entitles certain public employees to overtime compensation for each hour worked in excess of forty hours in one workweek. A.R.S. §§ 23-391, -392(A) (applying to "any person engaged in law enforcement activities").

¶7 The superior court rejected the State's contention that the FLSA preempted the Officers’ claims under A.R.S. § 23-392. On appeal, the State reasserts its preemption argument. As a preliminary matter, the Officers argue that we lack jurisdiction to consider this argument because the State did not file a cross-appeal.

¶8 A cross-appeal is not necessary if an "appellee in its brief seeks only to support or defend and uphold the judgment of the lower court from which the opposing party appeals." CNL Hotels & Resorts, Inc. v. Maricopa Cnty. , 230 Ariz. 21, 25, ¶ 20, 279 P.3d 1183, 1187 (2012) (quoting Maricopa Cnty. v. Corp. Comm'n , 79 Ariz. 307, 310, 289 P.2d 183 (1955) ). If successful, the State's preemption argument would constitute an alternative ground on which this court could affirm the judgment from which the Officers appeal. Further, the State made the same preemption argument in its motion to dismiss that it raises now. Thus, the issue of preemption is properly before this court without need for a cross-appeal. See Gila River Indian Cmty. v. Dep't of Child Safety , 242 Ariz. 277, 280, ¶ 9, 395 P.3d 286, 289 (2017). The asserted federal preemption of a state law claim is a legal issue that we review de novo . Dashi v. Nissan N. Am., Inc. , 247 Ariz. 56, 58, ¶ 5, 445 P.3d 13, 15 (App. 2019).

¶9 Federal preemption can be express or implied. Id. at ¶ 8. In determining whether a federal statute preempts a state claim, "[c]ongressional intent is the touchstone." Id. at ¶ 7 (citing Cipollone v. Liggett Grp., Inc. , 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) ). "There is a presumption against preemption, based on ‘the assumption that the historic police powers of the States were not to be superseded ... unless that was the clear and manifest purpose of Congress ....’ " Id. (quoting Wyeth v. Levine , 555 U.S. 555, 565, 129 S.Ct. 1187, 173 L.Ed.2d 51 (2009) ).

¶10 Under the theory of implied preemption, a claim may be preempted "where the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress." Schneidewind v. ANR Pipeline Co. , 485 U.S. 293, 300, 108 S.Ct. 1145, 99 L.Ed.2d 316 (1988) (quoting Cal. Coastal Comm'n v. Granite Rock Co. , 480 U.S. 572, 581, 107 S.Ct. 1419, 94 L.Ed.2d 577 (1987) ). The purpose of the FLSA is to provide minimum protection to workers from "substandard wages and oppressive working hours." Williamson v. Gen. Dynamics Corp. , 208 F.3d at 1144, 1150 (9th Cir. 2000) (quoting Adair v. City of Kirkland , 185 F.3d 1055, 1059 (9th Cir. 1999) ). The purpose of A.R.S. § 23-392 is similar. See Pijanowski v. Yuma Cnty. , 202 Ariz. 260, 264, ¶¶ 16-17, 43 P.3d 208, 212 (App. 2002) (stating the primary purpose of A.R.S. § 23-392 is to authorize overtime compensation to law enforcement personnel and to discourage routine use of extended overtime). Thus, the Arizona statute does not conflict with or impede the objectives of the FLSA.

¶11 In its argument, the State relies on Williamson v. General Dynamics Corp. , which held that "[c]laims that are directly covered by the FLSA (such as overtime and retaliation disputes) must be brought under the FLSA." 208 F.3d at 1154. However, this statement fails to support the State's contention that the FLSA preempts a state overtime claim under A.R.S. § 23-392.

¶12 In Williamson , employees sued in California state court, alleging a state claim for "career fraud" by their employer. Id. at 1147-48. The employer removed the case to federal court on diversity grounds, and the district court ruled the FLSA preempted the state fraud claims. Id. at 1148-49, 1151. The Ninth Circuit disagreed, holding the state claims were not preempted because they did not conflict with the purpose of the FLSA. Id. at 1153-54. The court contrasted the employees’ "career fraud" claims with claims for overtime, which would be preempted but which they had abandoned on appeal. Id.

¶13 The Arizona district court reached the same conclusion in Colson v. Avnet, Inc. , 687 F. Supp. 2d 914, 923-24 (D. Ariz. 2010). In Colson , the plaintiff brought FLSA claims and sought treble damages under Arizona's wage law, arguing that by failing to comply with the overtime provisions in the FLSA, the employer violated A.R.S. § 23-351, which requires an employer to pay overtime compensation within mandated time periods. Id. at 918-19.

¶14 In determining that the FLSA preempted the state wage claim, the Colson court adopted the reasoning in Wood v. TriVita, Inc. , CV-08-0765-PHX-SRB, 2008 WL 6566637, at *3-4 (D. Ariz. Sept. 18, 2008), another Arizona district court case addressing whether the FLSA preempts a claim brought under Arizona's wage laws. Colson , 687 F. Supp. 2d at 923-24. Both cases held that "overtime claims that are directly covered by the FLSA must be brought under the FLSA." Id. at 924 (quoting Wood , 2008 WL 6566637, at *4 ). Allowing such claims would "stand as an obstacle to the accomplishment and execution of the full purposes of the objectives of Congress in enacting the FLSA." Id. (quoting Wood , 2008 WL 6566637, at *4 ); see also Anderson v. Sara Lee Corp. , 508 F.3d 181, 194 (4th Cir. 2007) ("Congress prescribed exclusive remedies in the FLSA for violations of its mandates.").

¶15 These cases do not apply here because in each case, the plaintiffs relied on the FLSA as the source of their rights and invoked state law...

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