Roces v. Reno Hous. Auth.

Decision Date27 March 2018
Docket Number3:15-cv-00408-RCJ-WGC
Citation300 F.Supp.3d 1172
Parties Joaquin ROCES et al., Plaintiffs, v. RENO HOUSING AUTHORITY, Defendant.
CourtU.S. District Court — District of Nevada

Joshua D. Buck, Leah Lin Jones, Mark R. Thierman, Thierman Buck, LLP, Reno, NV, for Plaintiffs.

Charles R. Zeh, The Law Offices of Charles R. Zeh, Esq., Stephen S. Kent, Kent Law PLLC, Reno, NV, for Defendant.


ROBERT C. JONES, United States District Judge

This is a consolidated employment action, primarily for the collection of unpaid wages under the Fair Labor Standards Act ("FLSA") and Nevada law. Now pending before the Court are competing motions for summary judgment. (Pls.' Mot. Summ. J., ECF No. 81; Def.'s Mot. Summ. J., ECF No. 82.)


Defendant Reno Housing Authority1 (hereinafter "RHA") is a municipal corporation established and operated to alleviate housing shortages and provide affordable housing options within the cities of Reno and Sparks and throughout Washoe County, Nevada. RHA owns and manages 764 units of public housing in multiple locations throughout Washoe County, and offers subsidized housing to more than 2,500 low income families in the Reno-Sparks metropolitan area. (Jones Decl. ¶¶ 3–6, ECF No. 84-3.) At issue in this case are five of the apartment complexes managed by RHA: Essex Manor, Yorkshire Manor, Tom Sawyer Village, Silverada Manor, and Stead Manor.

Plaintiffs are five individuals who entered into "Live-In Agreements" with RHA. Under these Agreements, Plaintiffs received rent-free housing in exchange for undertaking the responsibility to perform certain regular work within the complexes they inhabited. From April 2010 until August 11, 2015, Plaintiff Joaquin Roces was the "live-in" responsible for the Essex Manor and Yorkshire Manor complexes, comprising 142 total housing units. (3:15-cv-408 Second Am. Compl. ¶ 6, ECF No. 54; Def.'s Mot. Summ. J. 5.) From October 2007 until July 31, 2013, Plaintiffs Juan and Judith Lopez were the live-ins at Tom Sawyer Village and Silverada Manor, comprising 250 units. (3:15-cv-408 Second Am. Compl. ¶¶ 7–8, ECF No. 54; Def.'s Mot. Summ. J. 5.) And from August 2012 until May 2016, Plaintiffs Jaime Villa and Melisa Chavez were the live-ins at Stead Manor, comprising 96 units. (3:16-cv-441 Compl. ¶¶ 6–7, ECF No. 1; Def.'s Mot. Summ. J. 5.)

Under the Agreements, the duties of a live-in are as follows: The live-in must conduct a daily grounds inspection, paying specific attention to exterior light fixtures, the security of vacant housing units, and any vehicles or tenant activity in violation of RHA rules and regulations. (Agreement ¶ 2B, ECF No. 83-4.) The timing of the daily inspection is flexible, however, and the live-ins are largely able to decide when to complete it. (See Roces Dep. 89:22–90:16 (one inspection daily, any time between 6 a.m. and 7 p.m.), 149:14–16 (one inspection daily, any time before 11 p.m.), ECF No. 87-1; Villa Dep. 113:13–114:4, ECF No. 92-1 (one inspection daily, at varying times of day, with one "late" inspection over the weekend); Acosta Decl. ¶ 8, ECF No. 84-4 (one inspection daily, at the live-in's convenience).) In conjunction with the daily grounds inspection, the live-in must complete a vehicle log report, and a building and grounds report (otherwise referred to as a property inspection report), each of which are turned in daily to RHA management. Incident reports may also be necessary, depending on the circumstances. (Roces Dep. 165:3–167:6, ECF No. 87-1.) Also, in conducting the grounds inspection, the live-in is expected to clean up the grounds as needed, by, for example, shoveling snow, throwing away trash or debris, clearing fallen tree branches, or picking up stray toys left in common areas. (See id. at 180:15–25; Agreement ¶ 2C.)

Surely, the live-in's central duty is to be RHA's on-site "eyes and ears" outside of regular business hours. To that end, live-ins are required to be "on-call" to respond to emergencies every day from 6:00 p.m. to 7:00 a.m., and around the clock on weekends and holidays. (Agreement ¶ 2A.) During their on-call hours, live-ins must be "available to answer, respond to and take appropriate action in a timely manner with respect to any emergency call" received. (Id. ) The Live-In Agreement clearly permits live-ins to leave the premises during on-call hours, but they must be reachable by telephone and must remain "close enough to respond within no more than fifteen minutes."2 (Id. at ¶ 2D.) Live-ins are not required by the Agreement to fulfill any affirmative duties during the on-call hours; rather, their purpose is to be near enough to respond quickly to emergency situations that may arise. Tenants experiencing an emergency are supposed to dial an RHA telephone number or contact Answer West—an answering service used by RHA for after-hours calls—and then the message is relayed to the live-in. The live-in is then expected to investigate the situation and abate minor emergencies if possible. If unable to abate the emergency, the live-in must report it to RHA's Asset Manager so a decision can be made regarding how and when to resolve the issue. (See, e.g. , Jones Dep. 43:4–47:6, ECF No. 86-1.)

On August 11, 2015, Joaquin Roces filed a collective action complaint against RHA alleging failure to pay wages and overtime in violation of the FLSA and Article 15, Section 16 of the Nevada State Constitution ("the Minimum Wage Amendment" or "the MWA"). (3:15-cv-408 Compl., ECF No. 1.) His complaint alleged that Mr. Roces worked 153 hours a week for RHA (40 during regular business hours and 113 on call) without hourly compensation, and further alleged that his unit's maximum rental value is $600, resulting in an effective wage rate of $0.92 per hour. On September 29, 2015, Juan and Judith Lopez joined in Mr. Roces's wage-and-hour allegations, and Mr. Roces added individual claims of FLSA retaliation, discrimination and retaliation under Nevada law, and tortious discharge in violation of public policy. (3:15-cv-408 Am. Compl., ECF No. 16.) On January 26, 2016, the Court denied Plaintiffs' motion to circulate a notice of the pendency of collective action under the FLSA to putative class members, holding that Plaintiffs failed to make "substantial allegations that they are similarly situated to the putative class members as victims of a single decision, policy, or plan." (Order, ECF No. 37.) Then on June 25, 2016, Jaime Villa and Melisa Chavez, represented by the same attorneys as the other three Plaintiffs, filed a separate action alleging the same wage-and-hour claims. (3:16-cv-441 Compl., ECF No. 1.) On September 19, 2016, the actions were consolidated under the first-filed case number.

The parties have now moved for summary judgment.


A court must grant summary judgment when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Material facts are those which may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242,248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. See id. A principal purpose of summary judgment is "to isolate and dispose of factually unsupported claims." Celotex Corp. v. Catrett , 477 U.S. 317, 323–24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

In determining summary judgment, a court uses a burden-shifting scheme. The moving party must first satisfy its initial burden. "When the party moving for summary judgment would bear the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial." C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc. , 213 F.3d 474, 480 (9th Cir. 2000) (citation and internal quotation marks omitted). In contrast, when the nonmoving party bears the burden of proving the claim or defense, the moving party can meet its burden in two ways: (1) by presenting evidence to negate an essential element of the nonmoving party's case; or (2) by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element essential to that party's case on which that party will bear the burden of proof at trial. See Celotex Corp. , 477 U.S. at 323–24, 106 S.Ct. 2548.

If the moving party fails to meet its initial burden, summary judgment must be denied and the court need not consider the nonmoving party's evidence. See Adickes v. S.H. Kress & Co. , 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). If the moving party meets its initial burden, the burden then shifts to the opposing party to establish a genuine issue of material fact. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). To establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T. W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n , 809 F.2d 626, 631 (9th Cir. 1987). In other words, the nonmoving party cannot avoid summary judgment by relying solely on conclusory allegations unsupported by facts. See Taylor v. List , 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposition must go beyond the assertions and allegations of the pleadings and set forth specific facts by producing competent evidence that shows a genuine issue for trial. See Fed. R. Civ. P. 56(e) ; Celotex Corp. , 477 U.S. at 324, 106 S.Ct. 2548.

At the summary judgment stage, a court's function is not to weigh the evidence and determine the truth, but to determine whether there is a genuine issue for trial. See Anderson , 477 U.S. at 249, 106 S.Ct. 2505. The evidence of the...

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