Roberta Watterson, on behalf of herself and all others similarly situated v. Garfield Beach Cvs, LLC

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERTA WATTERSON, on behalf of
herself and all others similarly situated,
Plaintiff-Appellant,
v.
GARFIELD BEACH CVS, LLC,
Defendant-Appellee.
No. 15-16623
D.C. No. 3:14-cv-01721-HSG
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Haywood S. Gilliam, Jr., District Judge, Presiding
Argued and Submitted June 14, 2017
San Francisco, California
Before: SCHROEDER and N.R. SMITH, Circuit Judges, and PIERSOL,** District
Judge.
Roberta Watterson (“Watterson”) appeals from the district court’s grant of
summary judgment in favor of appellee Garfield Beach CVS, LLC (“CVS”). We
FILED
AUG 02 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Lawrence L. Piersol, United States District Judge for
the District of South Dakota, sitting by designation.

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have jurisdiction under 28 U.S.C. § 1291. We review the grant of summary
judgment de novo. Satey v. JPMorgan Chase & Co., 521 F.3d 1087, 1091 (9th Cir.
2008). We affirm.
1. Under California law, employees are entitled to be paid for “hours
worked,” which is defined as “the time during which an employee is subject to the
control of an employer, and includes all the time the employee is suffered or
permitted to work, whether or not required to do so.” See IWC Wage Order No. 7-
2001 § 2(G); Cal. Code Regs., title 8, § 11070(2)(G). Watterson was not “subject
to the control of,” or “suffered or permitted to work” by, CVS. She admitted during
her deposition that CVS did not require her to sign up for medical insurance; she
was not required to complete the wellness program as a condition of her
employment; the requirements to complete the wellness program were not work
and were not part of her job duties; CVS did not direct her when to complete the
requirements of the wellness program; she could complete the questionnaire and
schedule appointments when it was convenient for her; she was not required to be
reachable or ready to perform work responsibilities; and she was never interrupted.
Cf. Morillion v. Royal Packing Co., 995 P.2d 139, 146 (Cal. 2000). Summary
judgment was proper because Watterson failed to establish a genuine issue of
material fact as to whether time spent completing annual health screenings and
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wellness questionnaires for a voluntary and optional wellness program instituted
by CVS for its employees meets the definition of “hours worked.” See Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986) (“Rule 56(c) mandates the entry of
summary judgment, after adequate time for discovery and upon motion, against a
party who fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the burden
of proof at trial.”).
2. Because the time spent completing the wellness program did not
amount to “hours worked,” there has been no waiver of California’s minimum
wage law. We have considered Watterson’s remaining arguments and find them all
to be either waived or unpersuasive.
Watterson’s motion to take judicial notice of the EEOC report is denied.
AFFIRMED.
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