Herbert Siegmund v. County of Orange , 461 F. App'x 639 ( 2011 )

FILED
NOT FOR PUBLICATION DEC 15 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
HERBERT SIEGMUND, Orange County No. 10-55973
Deputy Sheriff; et al.,
D.C. No. 8:07-cv-01387-CJC-PLA
Plaintiffs - Appellants,
v. MEMORANDUM *
COUNTY OF ORANGE; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Argued and Submitted December 9, 2011
Pasadena, California
Before: B. FLETCHER, SILVERMAN, and WARDLAW, Circuit Judges.
Plaintiffs, alleging violations of the Fair Labor Standards Act (“FLSA”),
appeal the district court’s grant of partial summary judgment in favor of
Defendants. Reviewing de novo, and viewing the evidence in the light most
favorable to Plaintiffs, Delia v. City of Rialto, 621 F.3d 1069, 1074 (9th Cir. 2010),
we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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The district court correctly held that the Memorandum of Understanding
(“MOU”) did not create a disputed issue of fact as to whether Defendants adopted
a 14-day 86-hour 29 U.S.C. § 207(k) exemption. Defendants provided
uncontroverted evidence that they adopted a 14-day 86-hour work-period and that
the work-period was regularly occurring. See Adair v. City of Kirkland, 185 F.3d
1055, 1060–61 (9th Cir. 1999). Plaintiffs argue that they raised a disputed issue of
fact as to whether Defendants adopted a § 207(k) exemption by showing that the
parties agreed to a 40-hour workweek under the MOU. One thing has nothing to
do with the other. The § 207(k) exemption and the MOU can coexist because the
FLSA provides the statutory floor for overtime compensation and the MOU
provides additional contractually agreed upon overtime payments above those
required under the FLSA. The FLSA was meant to guarantee minimum overtime
compensation. See Parth v. Pomona Valley Hosp. Med. Ctr., 630 F.3d 794, 799
(9th Cir. 2010). “Section 7(k) offers a limited exemption from the [standard
FLSA] overtime limit to public employers of law enforcement personnel or
firefighters.” Adair, 185 F.3d at 1059. That the parties agreed to more overtime
has no bearing on which overtime floor applies under the FLSA. Put another way,
Defendants did not waive the advantages of the § 207(k) exemption by entering
into the MOU. See Adair, 185 F.3d at 1061 (citing Birdwell v. City of Gadsden,
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970 F.2d 802, 806 (11th Cir. 1992)). Accordingly, Plaintiffs fail to show a
disputed issue of fact as to whether Defendants adopted a § 207(k) exemption.
Plaintiffs did not raise in the district court, but now argue on appeal, that: (1)
the FLSA prohibits Defendants from comparing employees’ FLSA overtime with
their MOU overtime and paying FLSA overtime only if it exceeds MOU overtime;
and (2) Defendants violated 29 U.S.C. § 211(c) by failing to keep proper records.
Plaintiffs never made these arguments in the district court, thus they are waived.
See United States v. Kitsap Physicians Serv., 314 F.3d 995, 999 (9th Cir. 2002).
Defendants submitted uncontroverted evidence that Defendants correctly
calculated FLSA overtime every two weeks. Plaintiffs fail to point to a single
employee who was underpaid under the FLSA and therefore fail to meet their
burden. Imada v. City of Hercules, 138 F.3d 1294, 1296 (9th Cir. 1998).
The district court correctly ruled that Plaintiffs failed to come forward with
any evidence showing that they were not paid their overtime rate for compensatory
time-off.
Only in their reply brief do Plaintiffs argue that supervising attorney-
investigators are non-exempt employees under the FLSA and that the district court
did not address this issue in the summary judgment order. In fact, the district court
ruled that supervising attorney-investigators were exempt. Having failed to argue
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in their opening brief that supervising attorney-investigators are not exempt from
FLSA requirements, Plaintiffs have waived such arguments on appeal. See
Christian Legal Soc’y v. Wu, 626 F.3d 483, 487 (9th Cir. 2010).
Lastly, we review for abuse of discretion the district court’s denial of
Plaintiffs’ request for additional discovery and a continuance of the summary
judgment hearing. Kitsap Physicians Serv., 314 F.3d at 1000. Plaintiffs’ counsel
failed to object to the Defendants’ invocation of the attorney-client privilege at
Stephens’s deposition and never moved to compel Stephens to answer such
questions. Plaintiffs cannot complain about it now for the first time. Further, to
the extent Plaintiffs are appealing the district court’s refusal to grant a continuance
for taking of additional discovery pursuant to former Federal Rule of Civil
Procedure 56(f), Plaintiffs failed to show how the information sought would
preclude summary judgment. Emp’rs Teamsters Local Nos. 175 and 505 Pension
Trust Fund v. Clorox Co., 353 F.3d 1125, 1129-30 (9th Cir. 2004). Because
Plaintiffs did not specifically identify any relevant evidence or how such evidence
might preclude summary judgment, the district court did not abuse its discretion in
denying a continuance.
AFFIRMED.