Wendi Berndt v. City of Los Angeles

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WENDI BERNDT, et al.,
Plaintiffs - Appellants,
v.
CITY OF LOS ANGELES,
Defendant - Appellee.
No. 13-56142
D.C. No. 2:11-cv-08579-GAF-
AJW
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Gary A. Feess, District Judge, Presiding
Argued and Submitted July 9, 2015
Pasadena, California
Before: W. FLETCHER, PAEZ, and BERZON, Circuit Judges.
The plaintiffs (“Berndt” or “the Officers”) appeal the district court’s grant of
summary judgment to the City of Los Angeles dismissing Berndt’s claims that the
City violated the Fair Labor Standards Act (FLSA). We affirm.
FILED
JUL 28 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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1. The FLSA, as interpreted by Department of Labor (DOL) regulations,
permits the City’s practice of compensating its employees’ “gap time” with
compensatory time off (CTO).
The regulations expressly classify CTO “earned and accrued by an employee
for employment in excess of a nonstatutory (that is, non-FLSA) requirement” as
“other” CTO not subject to the statutory overtime rate. 29 C.F.R. § 553.28. “For
example, a collective bargaining agreement may provide that compensatory time
be granted to employees for hours worked in excess of 8 in a day . . . .” § 553.28(a)
The City’s use of CTO to compensate “gap time” is specifically provided for by
the collective bargaining agreement under which the Officers are employed. Their
challenge to the City’s use of CTO for gap time therefore fails.
2. The City has established that there is no genuine issue of material fact for
trial by showing that the Officers have failed to present competent evidence of a
fact that they bear the burden of establishing. Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). That fact is whether the Officers performed work for which they
were not properly compensated. See Brock v. Seto, 790 F.2d 1446, 1447–48 (9th
Cir. 1986) (“An employee seeking to recover unpaid minimum wages or overtime
under the FLSA ‘has the burden of proving that he performed work for which he
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was not properly compensated.’” (quoting Anderson v. Mt. Clemens Pottery Co.,
328 U.S. 680, 687 (1946)).
Under the FLSA, employees “in law enforcement activities” are exempt
from the statute’s 40-hour workweek requirement. 29 U.S.C. § 207(k). The criteria
governing which employees qualify for this exemption are laid out in DOL
regulations. See 29 C.F.R. § 553.211(a). The City bears the burden of proving that
the Officers performed law enforcement activities. See Cleveland v. City of L.A.,
420 F.3d 981, 988 (9th Cir. 2005).
The City has established that its officers generally fall within the 207(k)
exemption, as provided for in the memorandum of understanding (“MOU”)
between the City and the Officers’ union. The MOU gives rise to the inference that
the City’s police officers, through their collective bargaining representative,
recognize that they meet the 207(k) criteria. With one exception — the declaration
by plaintiff Alfredo Flores — Berndt’s evidence does not provide any facts
suggesting that the Officers’ work consisted of non-law-enforcement activities.
The Flores declaration states that Flores’s “peace officer powers were
suspended” and that he “was required to work in an administrative role.” The
regulatory criteria for the 207(k) exemption do not, however, focus on the work the
individual officer is actually performing, but, instead, on the officer’s training,
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assignment to a “body of officers” with law enforcement authority, and endowment
with the “power to arrest.” 29 C.F.R. § 553.211(a). Flores’s conclusory declaration
does not address any of these specific criteria. Moreover, Flores did not state that
he worked overtime during the period in which his peace officer powers were
suspended. The declaration therefore does not raise a disputed issue of fact
regarding whether Flores worked overtime while in a non-exempt status, and
consequently was due additional compensation.
As Berndt has not provided any other documentation in support of her
contention that the Officers worked overtime while inappropriately classified under
§ 207(k), she has not created a “genuine issue of material fact” on the
compensation question. See Nissan Fire & Marine Ins. Co. v. Fritz Companies,
210 F.3d 1099, 1102–03 (9th Cir. 2000). The district court’s grant of summary
judgment to the City was thus appropriate.
3. Berndt’s claims under state law are waived due to insufficient argument.
Berndt makes two cursory state law arguments in a single paragraph in her
opening brief. First, Berndt asserts that the City’s CTO practice violates the
principle that wages are due on payday. But the only authority Berndt cites for this
principle discusses generally when a cause of action for unpaid wages accrues, not
when CTO may be paid. See Cuadra v. Millan, 17 Cal. 4th 855, 859 (1998). As
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Berndt has done “little more than cite” a case without clear application to the
instant case, “we are left to guess precisely what [Berndt] meant to argue,” and
“may not consider the question.” San Diego Unified Port Dist. v. Gianturco, 651
F.2d 1306, 1319 n.36 (9th Cir. 1981). Similarly, Berndt’s second state law claim,
that the City may not use CTO as compensation unless it is “affirmatively
authorized by law,” is not supported by any authority. Such a “bare assertion” is
insufficient to present the issue for meaningful appellate review. Greenwood v.
F.A.A., 28 F.3d 971, 977 (9th Cir. 1994).
Even if Berndt’s state law arguments were not waived, they would fail on
the merits. California’s “home rule” doctrine holds that the compensation of public
employees is generally a matter of local concern, and that most state wage laws
therefore do not apply to the employees of charter cities. See, e.g., Curcini v. Cnty.
of Alameda, 164 Cal. App. 4th 629, 643 (2008); Dimon v. Cnty. of Los Angeles,
166 Cal. App. 4th 1276 (2008) (declining to apply state meal period laws to county
probation officers); cf. Sonoma Cnty. Org. of Pub. Emps. v. Cnty. of Sonoma, 23
Cal. 3d 296, 317 (1979). State law may apply to charter cities when the law deals
with matters of “statewide concern.” State Bldg. & Const. Trades Council of Cal.,
AFL-CIO v. City of Vista, 54 Cal. 4th 547, 556 (2012). But Berndt has not
demonstrated that the present case implicates a matter of statewide concern.
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Jernagin v. City of L.A., No. B241411, 2013 WL 2336342, at *1 (Cal. Ct. App.
May 29, 2013), which Berndt raised for the first time at oral argument, did not
concern municipal law enforcement employees or the use of CTO, and so does not
support application of the statewide concern exception here.
AFFIRMED.
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