Rossell v. County of San Diego et al

1
24-cv-1872-L-DDL
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
PATRICIA ROSSELL,
Plaintiff,
v.
COUNTY OF SAN DIEGO,
Defendant.
Case No.: 24-cv-1872-L-DDL
ORDER GRANTING IN PART
DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT AND
DENYING PLAINTIFF’S MOTION
FOR CONDITIONAL
CERTIFICATION OF FLSA
COLLECTIVE ACTION
[ECF NOS. 12, 13]
In this wage-and-hour action, Defendant County of San Diego (“the County”) filed
a motion for summary judgment (ECF No. 12) and Plaintiff filed a motion for conditional
certification of a collective action (ECF No. 13). The motions are fully briefed. (See
ECF Nos. 14, 16, 18, and 21.) The Court decides them on the briefs without oral
argument. See Civ. L.R. 7.1.d.1. For the reasons stated below, the County’s motion for
summary judgment is granted in part. Plaintiff’s motion for conditional certification of a
collective action is denied.
/ / / / /
Case 3:24-cv-01872-L-DDL Document 27 Filed 03/02/26 PageID.<pageID> Page
1 of 9

2
24-cv-1872-L-DDL
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
I. BACKGROUND1
Plaintiff was employed by the County as a non-exempt hourly employee. The
parties agree that Plaintiff was eligible for benefits, including the Group Life and
Accidental Death and Dismemberment Insurance Policy (the “Group Policy”) in which
Plaintiff participated. (ECF No. 15, “Joint Statm.” at 2.) The County paid premiums to
MetLife to administer employment benefits, including the Group Policy. (Id.) The
County’s premium contributions were irrevocable. (Id.) The County did not include
these contributions in the regular rate of pay. (Id.) Accordingly, these contributions were
also not included in the calculation of overtime pay. Plaintiff claims that the County’s
contributions were a part of her compensation, and that the County’s practice of
excluding them from overtime pay was a willful violation of the Federal Labor Standards
Act (“FLSA”), 29 U.S.C. § 207. She seeks to recover, among other things, unpaid
overtime as well as liquidated damages in the same amount for herself and a putative
collective of similarly situated current and former County employees. The Court has
federal question jurisdiction under 28 U.S.C § 1331 because Plaintiff alleged a federal
claim under the FLSA.
II. DISCUSSION
Pending before the Court is the County’s motion for summary judgment. The
County maintains that the premiums paid for the Group Plan were properly excluded
from the regular rate of pay under the FLSA, 29 U.S.C. § 207(e)(4). Also pending is
Plaintiff’s motion for conditional certification of an FLSA collective action under 29
U.S.C. § 216(b).
A. Motion for Summary Judgment
Federal Rule of Civil Procedure 56 empowers the Court to enter summary
judgment or partial summary judgment on factually unsupported claims, defenses, or
1 Unless otherwise noted, the background facts are taken from the operative
complaint. (ECF No. 1, “Compl.”)
Case 3:24-cv-01872-L-DDL Document 27 Filed 03/02/26 PageID.<pageID> Page
2 of 9

3
24-cv-1872-L-DDL
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
issues. Summary adjudication is appropriate if depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show there is no genuine
dispute as to any material fact and the moving party is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a), (c)(1). A fact is material when, under the governing
substantive law, it could affect the outcome of the case. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986).2 A dispute about a material fact is genuine if “the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.” Id.
The moving party can meet its burden to demonstrate the absence of a genuine
issue of material fact by either of two methods:
produce affirmative evidence ... negating an essential element of the
nonmoving party's case, or, after suitable discovery, the moving party may
... meet its initial burden of production by showing—that is, pointing out to
the district court—that there is an absence of evidence to support the
nonmoving party's case.
Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Companies, Inc., 210 F.3d 1099, 1105-06
(9th Cir. 2000) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).
If the moving party fails to discharge this initial burden of production, the motion
must be denied, and the court need not consider the nonmoving party’s evidence.
Adickes v. S.H. Kress & Co., 398 U.S. 144, 159-60 (1970). If the moving party carries its
burden, the nonmoving party must “go beyond the pleadings and by [its] own affidavits,
or by the depositions, answers to interrogatories, and admissions on file, designate
specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324.
In this regard, the nonmoving party:
must do more than simply show that there is some metaphysical doubt as to
the material facts[, and] must come forward with specific facts showing that
there is a genuine dispute for trial. Where the record taken as a whole could
2 Unless otherwise noted, internal quotation marks, citations, footnotes, ellipses, and
brackets are omitted from citations.
Case 3:24-cv-01872-L-DDL Document 27 Filed 03/02/26 PageID.<pageID> Page
3 of 9

4
24-cv-1872-L-DDL
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
not lead a rational trier of fact to find for the non-moving party, there is no
genuine issue for trial.
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).
In ruling on a motion for summary adjudication, “courts may not resolve genuine
disputes of fact in favor of the party seeking summary judgment.” Tolan v. Cotton, 572
U.S. 650, 656 (2014). “[A] judge’s function at summary judgment is not to weigh the
evidence and determine the truth of the matter but to determine whether there is a
genuine issue for trial.” Id. “[T]he evidence of the nonmovant is to be believed, and all
justifiable inferences are to be drawn in [its] favor.” Id. at 651; see also id. at 657.
“Credibility determinations, the weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a judge.” Anderson, 477 U.S. at
255.
“The FLSA generally prohibits an employer from requiring a covered employee to
work more than forty hours in any workweek unless the employer pays the employee
overtime compensation ‘at a rate not less than one and one-half times the regular rate at
which he is employed.’” Sanders v. County of Ventura, 87 F.4th 434, 437 (9th Cir. 2023)
(quoting 29 U.S.C. § 207(a)(1)). The statute includes a definition, which provides, as
relevant here, that:
As used in this section the “regular rate” at which an employee is employed
shall be deemed to include all remuneration for employment paid to, or on
behalf of, the employee, but shall not be deemed to include—[¶]
contributions irrevocably made by an employer to a trustee or third person
pursuant to a bona fide plan for providing old-age, retirement, life, accident,
or health insurance or similar benefits for employees[.]
29 U.S.C. § 207(e)(4). The County bears the burden of establishing that its contributions
are excluded from the regular rate of pay under a statutory exception. Sanders, 87 F.4th
at 439.
1. Life and Accidental Death and Dismemberment Insurance
The parties agree that the Group Policy meets all requirements of 29 U.S.C.
Case 3:24-cv-01872-L-DDL Document 27 Filed 03/02/26 PageID.<pageID> Page
4 of 9

5
24-cv-1872-L-DDL
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
§ 207(e)(4), except whether it was a “bona fide plan.” (See Joint Statm. at 2.) This term
is not defined in the FLSA, see Sanders, 87 F.4th at 440, and the parties disagree what
constitutes a “bone fide plan.”
“The statutory requirement that a plan be ‘bona fide’ reflects the determination that
employers should not be able to evade the FLSA’s overtime rules through benefits
programs designed to pay employees disguised compensation.” Sanders, 87 F.4th at 440.
Relying on the foregoing, the County argues that the term “bona fide plan” is not
ambiguous, urging the Court to apply its plain meaning.
Based on this reasoning, the County claims that the Group Policy is a bona fide
plan because, in addition to meeting the other section 207(e)(4) requirements, i.e.,
irrevocable contributions to a third-party administrator for purposes of providing term life
and accident insurance to its employees, the Group Policy was established in good faith
in accordance with its written terms. (ECF No. 12-1, “Mot.” at 5 (citing ECF No. 12-3,
“McMahon Decl.” ¶¶ 4, 5 & Ex. A; see also Joint Statm. at 2).)
Plaintiff does not dispute the County’s evidence and does not contend that the
County’s premium payments to the Group Policy were disguised compensation or
otherwise served any other purpose than to provide term life and accident insurance
benefits. Accordingly, the County’s evidence is undisputed.
Instead, Plaintiff argues that the term “bona fide plan” is ambiguous and, citing
Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944), urges the Court to defer to the
Department of Labor (“DOL”) guidance under 29 C.F.R. § 778.215. The County
counters that Skidmore deference is inappropriate in the absence of statutory ambiguity.
The Court does not reach this issue because even with deference to DOL guidance,
Plaintiff has not raised a genuine issue of material fact.
DOL regulations set forth conditions for exclusion of benefit-plan contributions
from the regular rate of pay under 29 U.S.C. § 207(e)(4). 29 C.F.R. § 778.215; see also
Sanders, 87 F.4th at 440. Plaintiff points to the first sentence of 29 C.F.R.
/ / / / /
Case 3:24-cv-01872-L-DDL Document 27 Filed 03/02/26 PageID.<pageID> Page
5 of 9

6
24-cv-1872-L-DDL
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
§ 778.215(a)(5), which provides, “The plan must not give an employee the right to assign
his benefits under the plan nor the option to receive any part of the employer's
contributions in cash instead of the benefits under the plan[.]”
It is undisputed that the Group Policy includes a provision allowing employees to
transfer their benefit as a gift or viatical assignment. (Joint Statm. at 2-3.) Plaintiff
argues that the assignment provision conclusively establishes that the Group Policy is not
a bona fide plan under 29 C.F.R. § 778.215(a)(5).
The County counters by pointing to an exception to the no-assignment condition,
which states in relevant part as follows:
Provided, however, That if a plan otherwise qualified as a bona fide benefit
plan under section 7(e)(4) of the Act,[3] it will still be regarded as a bona fide
plan even though it provides, as an incidental part thereof, for the payment to
an employee in cash of all or a part of the amount standing to his credit …
during the course of his employment under circumstances specified in the
plan and not inconsistent with the general purposes of the plan to provide the
benefits described in section 7(e)(4) of the Act.
29 C.F.R. § 778.215(a)(5)(iii) (emph. in orig.). The exception is consistent with the
intent that “employers should not be able to evade the FLSA’s overtime rules through
benefits programs designed to pay employees disguised compensation.” Sanders, 87
F.4th at 440.
The County claims that given the exception, it did not run afoul of DOL guidance
notwithstanding the Group Policy’s assignment provision. Specifically, to the extent the
Group Policy allows employees to gift their insurance benefit, the employee would
receive no payment or other benefit upon transfer. (See Joint Statm. at 3.) The only other
assignment allowed by the Group Policy is a viatical assignment of the term life
insurance benefit. (See id.) An employee who made a viatical assignment would receive
3 Section 7(e)(4) of the Act refers to 29 U.S.C. § 207(e)(4).
Case 3:24-cv-01872-L-DDL Document 27 Filed 03/02/26 PageID.<pageID> Page
6 of 9

7
24-cv-1872-L-DDL
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
a monetary benefit. (Id.) Typically, a viatical assignment can be made only when the
insured employee suffers from a chronic or terminal illness. (Id.) As an alternative, the
Group Policy includes an Accelerated Benefit Option (“ABO”), which allows the insured
employee with a terminal or chronic illness to receive a percentage of his or her term life
insurance benefit before death. (Id. at 4.) These facts are undisputed and the
circumstances necessary for gift, assignment, or ABO are stated in the Group Policy.
(See id. at 3-4.) The County argues that none of the options under the Group Policy –
gift, viatical assignment, or ABO – show that the policy was designed to provide
employees with disguised compensation and evade the FLSA’s overtime rules.
Plaintiff does not address the County’s argument. Although Plaintiff cites 29
C.F.R. § 778.215(a)(5) in her complaint (Compl. ¶ 14), and the County discusses its
application, including the exception under subsection (iii) (see Mot. at 11-13), Plaintiff
fails to address the County’s arguments in her opposition, even while professing that
§ 778.215(a)(5) is the basis of her sole contention (see ECF No. 14, “Opp’n” at 10).
Plaintiff does not dispute the limitations of the Group Policy’s gift, assignment, and ABO
provisions, and does not claim that they are inconsistent with the general purpose of the
Group Policy to provide term life and accident insurance. Accordingly, Plaintiff has not
raised a genuine issue of material fact on the issue whether the Group Policy is a bona
fide plan under 29 U.S.C. § 207(e)(4).
To the extent the County seeks summary adjudication on the issue whether the
premiums paid for the Group Policy were properly excluded from regular rate of pay
under the FLSA, 29 U.S.C. § 207(e)(4), its motion is granted.
2. Other Employment Benefit Plans
The County does not merely seek summary adjudication as to the Group Policy,
but summary judgment on all Plaintiff’s claims. (Mot. at 1.) Plaintiff opposes this
request, arguing that, consistent with allegations in her complaint (Compl. ¶¶ 15, 17), this
action is not limited to the Group Policy, but encompasses other employment benefits,
including Long-Term Disability Insurance Policy. In reply, the County argues that the
Case 3:24-cv-01872-L-DDL Document 27 Filed 03/02/26 PageID.<pageID> Page
7 of 9

8
24-cv-1872-L-DDL
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
long-term disability policy cannot support Plaintiff’s claim of failure to include
contributions in the regular rate of pay because the County made no contributions, and
Plaintiff made all contributions herself. (ECF No. 16, “Reply” at 9.)
The issue whether the County failed to include any contributions to the long-term
disability policy or any other employment benefit in the regular rate of pay is unripe for
consideration on the pending summary judgment motion because Plaintiff presented no
evidence of any employment benefits other than the Group Policy until after the County
pointed to the absence of evidence in its reply brief (cf. Reply at 9 n.5 with ECF No. 17,”
Pl.’s Errata” Ex. A), and because the County’s substantive arguments relating to the long-
term disability policy were raised for the first time in its Reply, see Zamani v. Carnes,
491 F.3d 990, 997 (9th Cir. 2007) ("The district court need not consider arguments raised
for the first time in a reply brief."). Furthermore, before they filed the pending motions,
the parties agreed that the County’s planned motion to determine “whether premiums
paid for Plaintiff’s life and accidental death and dismemberment plans were properly
excluded under 29 U.S.C. § 207(e)(4) when calculating Plaintiff’s regular rate of pay”
would be a “motion for partial summary judgment.” (ECF No. 10, “Joint Stip.” at 2
(emph. added); see also id. at 3-4.)
Based on the foregoing, to the extent the County seeks summary judgment on all
Plaintiff’s claims, its motion is denied.
B. Motion for Conditional Certification of FLSA Collective Action
Last, pending before the Court is Plaintiff’s motion for conditional collective
certification. (ECF No. 13.) Before the pending motions were filed, the parties agreed
that the issue “whether premiums paid for Plaintiff’s life and accidental death and
dismemberment plans were properly excluded under 29 U.S.C. § 207(e)(4) when
calculating Plaintiff’s regular rate of pay” was a “threshold legal issue” the outcome of
which would “determine[e] whether this Action can continue[.]” (Joint Stip. at 2, 4
(emph. added).) Specifically, “Plaintiff’s counsel acknowledged that if the Court
ultimately ruled that the employer-paid contributions that Plaintiff herself received were
Case 3:24-cv-01872-L-DDL Document 27 Filed 03/02/26 PageID.<pageID> Page
8 of 9

9
24-cv-1872-L-DDL
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
properly excluded from her regular rate of pay, Plaintiff would have no claims remaining
to further pursue, bringing resolution to this action.” (Id. at 3.) Because the County’s
summary adjudication motion on the regular rate of pay issue is granted, Plaintiff’s
motion for conditional certification is denied.
III. CONCLUSION
For the reasons stated above, the County’s motion is granted on the issue whether
the premiums paid for the life and accidental death and dismemberment insurance policy
were properly excluded from regular rate of pay under the FLSA, 29 U.S.C. § 207(e)(4).
The County’s motion is denied in all other respects. Plaintiff’s motion for conditional
certification of a collective action under the FLSA, 29 U.S.C. § 216(b), is denied.
IT IS SO ORDERED.
Dated: March 2, 2026
Case 3:24-cv-01872-L-DDL Document 27 Filed 03/02/26 PageID.<pageID> Page
9 of 9