Marisha Russell v. Government Employees Insurance Company, a Maryland corporation

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARISHA RUSSELL,
Plaintiff-Appellant,
v.
GOVERNMENT EMPLOYEES
INSURANCE COMPANY, a Maryland
corporation,
Defendant-Appellee.
No. 18-55682
D.C. No. 3:17-cv-00672-JLS-
WVG
MEMORANDUM*
Appeal from the United States District Court
for the District of Southern California, San Diego
Janis L. Sammartino, District Judge, Presiding
Argued and Submitted November 4, 2019
Pasadena, California
Before: FARRIS, McKEOWN, and PARKER, Jr.,** Circuit Judges.
FILED
DEC 16 2019
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 Barrington D. Parker, Jr., United States Circuit Judge
for the Second Circuit, sitting by designation.

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Marisha Russell appeals the District Court’s Fed. R. Civ. P. 12(b)(6)
dismissal of her action under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq.,
and California state law against her former employer, Government Employees
Insurance Company (“GEICO”). We review the court’s dismissal de novo,
Dougherty v. City of Covina, 654 F.3d 892, 897 (9th Cir. 2011), and we affirm.
Russell argues that under 29 C.F.R. § 778.209(a), GEICO must retroactively
allocate her cash payment bonus over the 2012 calendar year, recompute her
regular rate of pay for the workweeks covered, and make a supplemental overtime
payment. She is incorrect. GEICO opted to calculate its cash payments as outlined
in 29 C.F.R. § 778.210, not § 778.209, and § 778.210 does not require retroactive
allocation of the bonus into an employee’s regular rate of pay or recomputation of
overtime pay. See Harris v. Best Buy Stores, L.P., No. 15-cv-00657-HSG, 2016
WL 4073327, at *4 (N.D. Cal. Aug. 1, 2016), on reconsideration, No. 15-cv-
00657-HSG, 2016 WL 6248893 (N.D. Cal. Oct. 26, 2016) (citing § 778.210;
Opinion Letter FLSA, 1997 WL 998000, at *1; FLSA 2006-4NA (February 17,
2006)).
Under § 778.210, employers calculate bonus payments by multiplying an
employee’s regular wages and overtime earnings by the same fixed percentage,
which serves as both a bonus and a simultaneous payment of overtime
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compensation due on the bonus. See § 778.210; Harris, 2016 WL 4073327, at *4.
GEICO calculated employee cash payments and trust contributions as a percentage
of the employee’s “Total Earnings” in a calendar year, which included regular
wages, overtime earnings, and other bonuses. Thus, GEICO satisfied the
requirements of § 778.210, it has already properly paid overtime compensation,
and it need not make a supplemental overtime payment.
Section 778.210 applies, so we need not reach Russell’s argument that
GEICO did not establish a precise formula to determine the company’s own
contributions to its profit sharing plan under 29 C.F.R. § 778.215(a)(3), which is
required to exclude employees’ trust contributions from their regular rate of pay.
GEICO’s requirement that employees work until February of the following
year to receive their bonus cash payment does not violate § 778.503. Nor must
GEICO factor those extra two months into the employee’s Total Earnings upon
which the bonus is based. Doing so would be duplicative, as the first two months
of each year would be accounted for twice in consecutive yearly bonus
calculations.
AFFIRMED.
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