Houck v. Maricopa, County of

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Christopher J. Houck, on behalf of himself
and all those similarly situated,
Plaintiff,
vs.
Maricopa County,
Defendant.
No. CV-23-0068-PHX-DGC
ORDER
The Court has reviewed the parties’ memoranda regarding the trial in this case
(Docs. 192, 193) and the briefing on Defendant’s motion to certify a question to the Ninth
Circuit and stay this action (Docs. 195, 201, 204). The Court will deny Defendant’s motion
and pose some questions to the parties regarding the trial in this matter.
A. Motion to Certify and Stay.
The Court does not agree with Defendant’s characterization of the Ninth Circuit’s
decision in Campbell v. City of Los Angeles, 903 F.3d 1090 (9th Cir. 2018) – specifically,
that it is ambiguous and leaves unanswered questions related to the decertification decision.
In denying Defendant’s motion for decertification, the Court held:
Plaintiffs have presented substantial evidence of their similarity. They
consistently testified in their depositions that they are required to respond to
all high-level patrol calls and report as first responders in the field for all such
calls, and that this duty takes priority over any administrative tasks patrol
lieutenants have. [Doc. 171] at 8-9 & n.8. All Plaintiffs must also (1) be
uniformed at all times, including wearing body-worn cameras and the same
equipment as deputies, (2) log into the CAD system at the start of their shift
to ensure dispatch is aware they are available for calls, and (3) monitor the
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radio to ensure they are alerted to calls. Id. at 6-7. Plaintiffs are subject to
discipline for failure to respond to high-level patrol calls. Id. at 9.
Plaintiffs’ facts are material to the question of whether they were
properly classified as exempt employees, as will be evident in the summary
judgment discussion below. And because these material facts are the same for
all Plaintiffs, the Plaintiffs are “alike with regard to some material aspect of
their litigation.” Campbell, 903 F.3d at 1114. The “similarly situated”
requirement for a collective action is therefore satisfied in this case. 29 U.S.C.
§ 216(b).
Houck v. Maricopa Cnty., 2026 WL 2130620, at *3 (D. Ariz. July 24, 2026).
The Court continues to view this application of Campbell as correct. The Court does
not find that its decertification or summary judgment rulings present a controlling issue of
law on which there is a substantial ground for difference of opinion in the Ninth Circuit. 28
U.S.C. § 1292(9b). The Court therefore will not certify its decision for immediate appeal.
B. Trial Issues.
The Court does, however, find considerable uncertainty as to how this FLSA case
should be tried. Plaintiff argues that this case can be tried through the representative
testimony of him and six additional opt-in Plaintiffs, as well as selected management
witnesses, and that both liability and damages can be determined for all 21 collective
members on the basis of this evidence. The Court previously has noted that a majority of
cases say collective actions can be tried on a representative basis (Doc. 190 at 13-14), but
the parties’ trial memoranda and the Court’s continued thinking about trial have raised
serious questions. The parties must assist the Court in resolving these questions.1
There are sufficient similarities among the opt-in Plaintiffs to certify this case under
the Campbell test, as noted in the above quotation. But the threshold for certifying a
collective action under Campbell is quite low – the Plaintiffs need only be similar on “some”
material facts. 903 F.3d at 1114. That means they can be dissimilar on other material facts.
1 The Court notes that these issues would not be resolved by an interlocutory appeal
because the Court has not decided them or tried the case. Asking the Ninth Circuit to address
these trial-management issues now would be asking for an impermissible advisory opinion.
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If those other material facts could affect the determination of whether or not Plaintiffs are
exempt employees, how can this case be tried fairly on a representative basis?
In its summary judgment ruling, the Court rejected Plaintiffs’ argument that their
primary role could be determined on the narrow set of facts described in the above quotation.
The Court did not agree that these facts brought Plaintiffs within the firefighter cases that
have held managers exempt. Houck, 2026 WL 2130620, at *4-5. The Court instead found
that Plaintiffs’ exempt status turned on a variety of factors:
As noted above, an employee is exempt from overtime pay under the
FLSA if their “primary duty” is “the performance of exempt work.” 29
C.F.R. § 541.700(a). “Primary duty” is defined in regulations as “the
principal, main, major or most important duty that the employee performs.”
Id. Plaintiffs’ “primary duty” cannot, however, be determined by focusing
on a single fact or a small set of facts. The Court at summary judgment, and
the jury at trial, must consider “the character of the employee’s job as a
whole,” with relevant factors including (1) “the relative importance of the
exempt duties” compared to the employee’s other duties, (2) the “time spent
performing exempt work,” (3) “the employee’s relative freedom from direct
supervision,” and (4) “the relationship between the employee’s salary and
the wages paid to other employees for the kind of nonexempt work
performed by the employee.” Id. In this case, these factors present disputes
of fact that preclude summary judgment for any party.
Defendant focuses on facts that support its claim that Plaintiffs are
exempt. These include the fact that “[w]hen a patrol district’s
Captain/Commander is unavailable, a Patrol Lieutenant will fill the role as
the patrol district’s ‘acting commander’ or ‘acting captain,[’] who becomes
the highest-ranking individual in the patrol district,” and that “Patrol
lieutenants who work the night shift are referred to as the ‘watch commander’
and are the highest-ranking individual during that shift for Patrol Bureau East
or West, and at times for the entire County.” Doc. 157 at 42. Plaintiffs
respond that even in these temporary roles, “the Patrol lieutenants still
maintain their role and duties as a Patrol Lieutenant” and must respond to
high level calls. Doc. 173 at 55.
Defendant further argues that Plaintiffs “make recommendations as to
hiring and promotion decisions,” and that they have the authority to take
various disciplinary actions. Doc. 157 at 43. Plaintiffs point to “testimony in
the record that Patrol lieutenants did not have authority to make final hiring
or promotional decisions” or the “authority to make final disciplinary
decisions.” Doc. 173 at 56-57. The parties also disagree on the relative
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importance of various other duties of Plaintiffs, including supervising other
employees, making annual performance evaluations, and budgeting, training,
and conducting special projects. Docs. 157 at 43-44, 173 at 57-60. These
facts are relevant to the regulatory factors of Plaintiffs’ relative freedom from
direct supervision and the relative importance of their exempt duties
compared to their other duties. See § 541.700(a).
There is also a factual dispute regarding the relationship between the
salaries of Plaintiffs and sergeants. Defendant claims Plaintiffs receive a 10%
pay raise on promoting to patrol lieutenants (Docs. 156 at 13, 172 at 33),
which Plaintiffs challenge as factually unsupported (Doc. 172 at 33).
Plaintiffs also argue that they make less than sergeants when factoring in
sergeants’ overtime (id.).
In short, determining Plaintiffs’ “primary duty” is a multi-factor
inquiry and the parties disagree on the facts relevant to that inquiry. A jury
must resolve these factual disputes and determine the inferences to be drawn
from them.
Houck, 2026 WL 2130620, at *5.
Because the jury must decide whether a Plaintiff is exempt based on the character of
their job “as a whole,” 29 C.F.R. § 541.700(a), it is possible that the jury – considering the
varying circumstances among the 21 Plaintiffs – could find some exempt and others not.
How, then, can this case be tried fairly on a representative basis? Under Plaintiff’s proposal,
the jury would have no knowledge of factual variations among the 14 non-testifying
Plaintiffs and would simply have to assume – perhaps incorrectly – that their work,
responsibilities, and schedules were the same as the testifying Plaintiffs.
And even if a method could be found for the jury to determine damages “as a matter
of just and reasonable inference,” Est. of Barton v. ADT Sec. Servs. Pension Plan, 820 F.3d
1060, 1068 (9th Cir. 2016), liability is a different and more complicated question. Plaintiff
has not shown or attempted to show that the work of the seven proposed trial Plaintiffs is
exactly like the work of the proposed 14 non-testifying Plaintiffs. Individual consideration
seems necessary.
By October 28, 2026, Plaintiff shall file a 10-page memorandum on these issues.
Plaintiff specifically should address the concerns set forth in this order and explain how his
factual situation, or that of the six other proposed Plaintiff witnesses, can fairly be used by
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the jury to determine the exempt status of non-testifying Plaintiffs whose factual situations
differ. Plaintiff should provide examples from similar cases that were tried on a collective
basis, including cases with fact-specific exemption defenses, and explain how that was done
and what instructions were given to the jury regarding the representative nature of the trial.2
By November 6, 2026, Defendants shall file a 10-page response. No reply should be filed
without a request from the Court.
Dated this 14th day of October, 2026.
2 The Court notes that Rule 23 class action cases will not be helpful. The Court has
not made a determination of adequacy, commonality, typicality, or predominance in this
case, as is required in class actions under Rule 23, and the Ninth Circuit specifically
distinguished FLSA collective actions from Rule 23 class actions in Campbell. See 903 F.3d
at 1111-13.
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