Herbert Siegmund v. County of Orange

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NOT FOR PUBLICATION DEC 15 2011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,
 -3-

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.