Woodburn v. City of Henderson
| Decision Date | 29 November 2021 |
| Docket Number | 2:19-cv-01488-JAD-VCF |
| Parties | Kelly Woodburn, et al., Plaintiffs v. City of Henderson, Defendant |
| Court | U.S. District Court — District of Nevada |
ORDER GRANTING PLAINTIFFS' MOTION FOR COLLECTIVE ACTION, DENYING DEFENDANT'S MOTION TO COMPEL ARBITRATION AND DENYING DEFENDANT'S MOTION TO DISMISS
Plaintiffs are current and former corrections officers at the Henderson Detention Center (HDC) who sue the City of Henderson for unpaid overtime under the Fair Labor Standards Act (FLSA). They move to conditionally certify their collective action under 29 U.S.C. § 216(b). The City objects, claiming that current officers cannot be part of the collective action because they are required to arbitrate FLSA claims under their collective bargaining agreement (CBA). It moves to compel arbitration for Joshua Rodriguez, a current officer who recently was joined as a named plaintiff. The City also moves to dismiss plaintiffs' second-amended complaint in its entirety, contending that it alleges “gap-time” claims that are not actionable under the FLSA.
Because I find that the CBA does not contain a clear and unmistakable waiver of the officers' right to litigate statutory claims, I deny the City's motion to compel arbitration. The plaintiffs have sufficiently alleged claims for unpaid overtime under the FLSA, so I deny the City's motion to dismiss. And because they have adequately pled that the members of their collective action are similarly situated, I grant their motion for collective action and equitably toll the applicable statute of limitations from May 29, 2021 until the City provides contact information for potential class members to plaintiffs' counsel.
Plaintiffs Kelly and Thomas Woodburn, both former HDC corrections officers, filed this collective action in state court in July 2019 for violations of the FLSA's overtime provisions.[1]They allege that HDC corrections officers were required to perform indispensable and integral work duties for 30-45 minutes before their scheduled shifts, and 20-45 minutes after their scheduled shifts-in excess of the maximum hours the FLSA dictates for law enforcement officers-but that they were not paid overtime for those hours.[2]
The City removed the action to this court and filed a motion to dismiss and to strike plaintiffs' amended complaint. It argued that plaintiffs' collective allegations concerning current HDC officers should be struck because the parties' CBA mandates arbitration for current employees, and that the complaint should be dismissed in its entirety because the plaintiffs did not sufficiently allege that they were owed overtime pay.[3] I denied both motions, finding that plaintiffs alleged a cognizable overtime claim and that the City's arbitration arguments were premature.[4]
In June 2021, the magistrate judge granted plaintiffs' motion for leave to file a second-amended complaint adding a third plaintiff, Joshua Rodriguez, who is a current HDC officer.[5]Plaintiffs now move for conditional certification of their collective action, to include former and current corrections officers employed by the City at any time from July 3, 2016, to the present.[6] The City opposes[7] and re-argues that Rodriguez and all future opt-in plaintiffs who are current employees should be compelled to arbitrate their claims.[8] The City also moves to dismiss the second-amended complaint in its entirety, contending again that plaintiffs failed to sufficiently allege an FLSA claim for unpaid overtime.[9]
The City contends that any current employees who want to join this lawsuit must arbitrate their claims because their CBA contains an arbitration clause.[10] It asks me to (1) deny plaintiff's motion for certification on this basis, since all current employees are subject to arbitration provisions and therefore are not similarly situated to retired or former employees who are not so bound; and (2) compel Rodriguez to arbitrate his FLSA claims.
Under the Federal Arbitration Act (FAA), “[a] written provision in any . . . contract evidencing a transaction involving commerce to settle by arbitration a controversy” arising out of the contract or transaction is “valid, irrevocable, and enforceable save upon such grounds as exist at law or in equity for the revocation of any contract.”[11] The FAA permits any party “aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration” to petition any federal district court for an order compelling arbitration in the manner provided for in the arbitration agreement.[12] “By its terms, the Act ‘leaves no place for the exercise of discretion by a district court, but instead mandates that district courts shall direct the parties to proceed to arbitration on issues as to which an arbitration agreement has been signed.'”[13] The district court's role under the FAA is “limited to determining (1) whether a valid agreement to arbitrate exists and, if it does (2) whether the agreement encompasses the dispute at issue.”[14] The party seeking to compel arbitration has the burden to show that both of these questions must be answered in the affirmative.[15]
The Supreme Court and the Ninth Circuit have held that broad, general arbitration provisions in CBAs do not bar employees' rights to pursue statutory claims in court.[16] While a general arbitration provision may bar litigation concerning the violation of a CBA's contractual provisions, statutory rights are “separate and distinct” from those rights that were bargained for and agreed upon.[17] Because “the right to a federal judicial forum is of sufficient importance to be protected against less-than-explicit union waiver in a CBA, ” a CBA can only require arbitration of statutory claims if it contains a “clear and unmistakable” waiver of an individual's right to litigate those claims in court.[18] Courts “will not infer from a general contractual provision that the parties intended to waive a statutorily protected right unless the undertaking is ‘explicitly stated.'”[19]
Plaintiffs do not dispute that the CBA contains a valid and enforceable arbitration provision. They dispute only whether it applies to their FLSA claims. The CBA's arbitration provision starts out as a grievance procedure that applies to “any dispute concerning the interpretation or application of an expressed provision of this Agreement.”[20] If a grievance is not resolved by the CBA's detailed grievance process, it is referred to an arbitrator, whose authority and jurisdiction is “confined exclusively to the interpretation and application of an expressed provision or provisions” of the CBA.[21] “Grievance” is broadly defined as “any dispute which arises regarding an interpretation, application, or alleged violation of any of the provisions of this agreement or policy or procedure.”[22]
The City does not deny that the CBA's grievance clause itself does not clearly and unmistakably waive an individual's right to bring statutory claims in court. The City instead contends that its incorporation of references to the FLSA in other provisions of the CBA makes it sufficiently clear that the grievance procedure was intended to apply to FLSA claims.[23] The CBA makes explicit mention of the FLSA three times. In a section concerning compensatory time off that employees can take in lieu of overtime, the CBA states that “compensatory time off will accumulate for the fiscal year, to the maximum allowed by the [FLSA], which is currently four hundred eight (480) hours.”[24] In the same section, the CBA states that “[t]he Department Command Staff will strive to accommodate compensatory time off requests whenever possible and understand its obligation under the [FLSA].”[25] And another section of the CBA's overtime provisions states that “[t]ravel time to and from work is not compensable per the federal Portal-to-Portal Act.”[26] The City contends that “an overall reading of the CBA combined with [these specific FLSA references] evidence that the parties clearly and unmistakably intended for any disputes concerning overtime, statutory or otherwise, should be resolved through the grievance/arbitration process.”[27]
But these fleeting references to the FLSA do not clearly and unmistakably waive any employee's right to sue for violations of its overtime provisions.[28] The agreement merely contemplates that the City will allow compensatory time to accrue “to the maximum allowed by the FLSA, ” that it will “strive to . . . understand its obligations under the FLSA” when responding to compensatory time-off requests, and that travel time is not compensable under the FLSA.[29] None of these CBA provisions applies to this lawsuit, as the plaintiffs are not contesting the City's comp-time or travel-time policies. There is no indication that the FLSA governs any part of the agreement or that the statute was so incorporated that any FLSA dispute could be said to “concern[] the interpretation or application of an expressed provision” of the CBA. And these references cannot be said to explicitly make “compliance with the [FLSA] a contractual commitment that would be subject to the arbitration clause.”[30]
The City relies heavily on the District of Minnesota case of Montgomery v. Compass Airlines[31] to contend that the CBA's references to the FLSA suffice to constitute a waiver of an employee's right to bring suit under the statute. But Montgomery is distinguishable and unpersuasive. The CBA at issue in Montgomery contained a general arbitration provision and a promise that the employer would “comply with the provisions of the Family and Medical Leave...
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