Sturgiss v. Pinnacle West Capital Corporation

MOTION for Summary Judgment

D. Ariz.September 2, 2016

O G L E T R E E , D E A K IN S , N A S H , S M O A K & S T E W A R T , P .C . 2 4 1 5 E a s t C a m e l b a c k R o a d , S u it e 8 0 0 P h o e n ix , A r iz o n a 8 5 0 1 6 (6 0 2 ) 7 7 8 -3 7 0 0 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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA William Sturgiss, Plaintiff, vs. Arizona Public Service Company, Defendant. No. CV-15-02567-PHX-SRB DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Pursuant to Rule 56(c), Fed. R. Civ. P., Defendant Arizona Public Service Company (“APS”) hereby moves for summary judgment on Plaintiff William Sturgiss’s (“Plaintiff” or “Sturgiss”) sole count of overtime violations of the Fair Labor Standards Act (“FLSA” or “the Act”). This Motion is supported by the following Memorandum of Points and Authorities and the Separate Statement of Facts in Support of Defendant’s Motion for Summary Judgment (“SOF”) and accompanying declarations, filed contemporaneously herewith in accordance with Local Rule 56.1(a). MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION As a matter of law, Plaintiff cannot establish that he performed off-the-clock work with the knowledge of APS. “[A]n employer’s actual or imputed knowledge that an employee is working is a necessary condition to finding the employer suffers or permits Tracy A. Miller, SBN 015920 Adam P. Boyd, SBN 032846 OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C., #00504800 2415 East Camelback Road, Suite 800 Phoenix, Arizona 85016 Telephone: (602) 778-3700 Tracy.Miller@ogletreedeakins.com Adam.Boyd@ogletreedeakins.com Attorneys for Defendant Case 2:15-cv-02567-SRB Document 40 Filed 09/02/16 Page 1 of 9 O G L E T R E E , D E A K IN S , N A S H , S M O A K & S T E W A R T , P .C . 2 4 1 5 E a s t C a m e l b a c k R o a d , S u it e 8 0 0 P h o e n ix , A r iz o n a 8 5 0 1 6 (6 0 2 ) 7 7 8 -3 7 0 0 2 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 that work.” Chao v. Gotham Registry, Inc., 514 F.3d 280, 285 (2d Cir. 2008). Specifically, the undisputed evidence establishes that Plaintiff’s supervisors did not have actual or constructive knowledge that Plaintiff was working off-the-clock; therefore, Plaintiff cannot establish that a violation of the FLSA occurred. II. FACTUAL BACKGROUND1 A. Plaintiff’s Allegations Plaintiff alleges that APS required him to work after his shift ended and that he was not compensated for his overtime work in violation of the FLSA. (Compl. ¶ 29.) Plaintiff specifically alleges that APS required him to stay until 9:00 p.m. every shift and that APS would fill out Plaintiff’s timesheet and intentionally exclude all hours he worked after his regular shift ended. (Compl. ¶ ¶ 28, 30.) Plaintiff alleges that his supervisors knew of his off-the-clock work and despite Plaintiff’s complaining to his supervisors about his lack of overtime pay during this period, he never received the full overtime pay he was due. (Compl. ¶¶ 31-32.) B. Plaintiff Begins Employment with APS Starting in 1985, Plaintiff was employed by APS as an Instruments and Controls (“I/C”) Technician at Palo Verde Nuclear Generating Station (“Palo Verde”). At the beginning of 2014, Plaintiff became a Training Coordinator. (SOF ¶ 1.) As a Training Coordinator, Plaintiff was responsible for scheduling and ensuring that APS employees received mandatory training. (SOF ¶ 3.) Plaintiff held this role from 2014 through 2015, and his typical schedule was 6:30 a.m. until 5:00 p.m. or 7:00 a.m. until 5:30 p.m. (SOF ¶ 4.) C. APS’s Timekeeping and Overtime Policies Prohibit Off-the-Clock Work APS takes timekeeping very seriously, particularly at Palo Verde where APS is licensed as a nuclear operator by the Nuclear Regulatory Commission (“NRC”) and 1 For the purposes of this Motion only, Plaintiff’s deposition testimony is accepted as true without an assessment of the credibility of the witness. Case 2:15-cv-02567-SRB Document 40 Filed 09/02/16 Page 2 of 9 O G L E T R E E , D E A K IN S , N A S H , S M O A K & S T E W A R T , P .C . 2 4 1 5 E a s t C a m e l b a c k R o a d , S u it e 8 0 0 P h o e n ix , A r iz o n a 8 5 0 1 6 (6 0 2 ) 7 7 8 -3 7 0 0 3 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 subject to additional federal regulations governing employee work time. The Palo Verde facilities comprise three pressurized reactors located approximately 50 miles west of Phoenix. It is currently the largest nuclear power plant in the United States. Because of the inherent dangers associated with nuclear power generation, Palo Verde is subject to rigorous federal regulations governing safety, including the number of hours employees can work during a week. (SOF ¶ 2.) The NRC oversees nuclear licensees and enforces these regulations which, among other things, prohibit workers at a nuclear power plant from working more than sixteen (16) hours in a twenty-four (24) hour period, twenty-six hours (26) in a forty-eight (48) hour period, and seventy-two (72) work hours in any seven (7) day period. 10 CFR § 26.205. APS complies with the NRC regulations scrupulously and carefully enforces its timekeeping policies and procedures to ensure that no workers experience fatigue or sleepiness while on the job. (SOF ¶ 22.) Contrary to Plaintiff’s assertion in his Complaint that APS completed his timesheets, APS employees must report their own time. (SOF ¶ 5.) APS policy requires employees to enter their time daily and to ensure that time records accurately reflect the actual hours worked. (Id.) APS also has a station procedure to comply with the NRC’s fatigue management regulations. (SOF ¶24.) This procedure requires workers to enter their time into a software program called EmpCenter, which warns a worker’s supervisor if the worker’s hours could exceed the strict hour limitations set by the NRC. (Id.) Plaintiff had access to this policy. (SOF ¶ 24.) Moreover, Plaintiff was required to review the fatigue management procedure as part of his Site Leader qualification, which Plaintiff completed on July 7, 2014. (SOF ¶ 25.) By his own admission, Plaintiff did not follow these policies and procedures and instead entered his time weeks in advance and then failed to adjust his reported time to reflect the time he actually worked. (SOF ¶ 6.) All overtime must be approved by an employee’s team leader, but even if the time is not approved, APS policy mandates that the employee be paid for all time reported. (SOF ¶ 7.) As a 30-year APS employee, Plaintiff admits that he knew that he needed prior authorization from his team leader and Case 2:15-cv-02567-SRB Document 40 Filed 09/02/16 Page 3 of 9 O G L E T R E E , D E A K IN S , N A S H , S M O A K & S T E W A R T , P .C . 2 4 1 5 E a s t C a m e l b a c k R o a d , S u it e 8 0 0 P h o e n ix , A r iz o n a 8 5 0 1 6 (6 0 2 ) 7 7 8 -3 7 0 0 4 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 his section leader to work overtime, and knew that he needed to report his time accurately. (SOF ¶¶ 5, 7.) Twice a year, Palo Verde experiences refueling “outages,” when workers replace about one-third of the fuel in a nuclear reactor and perform routine inspections and maintenance. (SOF ¶ 8.) During these outages, most employees are required to work overtime. (SOF ¶ 8.) It is undisputed that Plaintiff accurately recorded his overtime hours during the outages within the time period of 2014 and 2015 and was paid for all such overtime. (SOF ¶ 8.) Overtime outside the outages is not common, however, and Plaintiff was never required to stay until 9:00 p.m., contrary to what he alleged in his complaint. (SOF ¶ 9.) D. Plaintiff’s Off-the-Clock Work Once Plaintiff moved to the Training Coordinator position, he was allowed a flexible work schedule by his supervisor, Christopher Bristow. (SOF ¶ 10.) Plaintiff would frequently come to work early, leave late, or take days off in the middle of the week, with the expectation that he would make up the hours he missed at a different time. (SOF ¶ 10.) Mr. Sturgiss routinely took advantage of the flexibility afforded to him by Mr. Bristow. (SOF ¶ 10.) At some point, Plaintiff began to stay at APS’s premises beyond his scheduled work hours. (SOF ¶ 11.) According to Plaintiff, he might show up an hour and a half to two hours before his scheduled shift times and would stay hours after his shift ended. (SOF ¶ 11.) Plaintiff never reported this extra time on his timesheets. (SOF ¶ 11.) Plaintiff’s supervisors, Christopher Bristow, Calvin Brown and Michael Wilson did not ask Plaintiff to extend his hours and had no knowledge of Plaintiff working beyond his scheduled hours. (SOF ¶ 27.) In fact, Plaintiff did not inform his supervisors about his alleged off-the-clock work until March of 2015, after Plaintiff received a “2” out of “5” rating on his annual 2014 performance evaluation. (SOF ¶ 12.) A “2” rating indicates Plaintiff delivered below average performance and did not meet expectations during 2014. (SOF ¶ 12.) Case 2:15-cv-02567-SRB Document 40 Filed 09/02/16 Page 4 of 9 O G L E T R E E , D E A K IN S , N A S H , S M O A K & S T E W A R T , P .C . 2 4 1 5 E a s t C a m e l b a c k R o a d , S u it e 8 0 0 P h o e n ix , A r iz o n a 8 5 0 1 6 (6 0 2 ) 7 7 8 -3 7 0 0 5 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 During the meeting to discuss his “2” rating, Plaintiff mentioned to supervisors Christopher Bristow and Michael Wilson that he had grown weary of working additional time. (SOF ¶ 13.) Prior to this time, Plaintiff had never complained to any supervisor about not being paid for alleged overtime. (SOF ¶ 14.) During this meeting, Plaintiff insisted that his supervisors observed him at Palo Verde during off-hours, but even if true, given Plaintiff’s flexible schedule, his supervisors had no way of knowing whether Plaintiff was actually working overtime or simply making up for time not worked during his regularly scheduled work hours. (SOF ¶ 15.) As soon as Plaintiff told APS that he was working beyond his scheduled hours, APS demanded that Plaintiff stop any off-the-clock work and reiterated to him that he must report all time worked. (SOF ¶ 16.) However, Plaintiff admits that he ignored this request and now claims that he continued to work unauthorized overtime without the knowledge of APS. (SOF ¶ 17.) Although APS had no obligation to pay Plaintiff for any work performed without its knowledge, APS attempted to verify time that Plaintiff may have worked off-the-clock and – in good faith – offered to pay Plaintiff for 56.5 hours of unreported, unauthorized overtime. (SOF ¶ 18.) Plaintiff refused the offer and filed the instant suit. III. LEGAL ANALYSIS A. APS Had No Knowledge Of Plaintiff’s Alleged Off-the-Clock Work Even assuming that Plaintiff worked the off-the-clock hours he now claims, such time is plainly not compensable under the FLSA because APS had no reason to know that Plaintiff was working hours that he failed to report. The Department of Labor has made clear that employers must pay overtime only for time that the employer knows or has reason to know that the employee is working. Section 7(a) of the FLSA requires employers to pay a nonexempt employee overtime compensation for hours worked over forty (40) per week “at a rate not less than one and one-half times the regular rate at which he is employed.” 29 U.S.C. §207 (a)(1). The FLSA defines “employ” to include “to suffer or permit to work” but contains no definition of “work” and only a partial Case 2:15-cv-02567-SRB Document 40 Filed 09/02/16 Page 5 of 9 O G L E T R E E , D E A K IN S , N A S H , S M O A K & S T E W A R T , P .C . 2 4 1 5 E a s t C a m e l b a c k R o a d , S u it e 8 0 0 P h o e n ix , A r iz o n a 8 5 0 1 6 (6 0 2 ) 7 7 8 -3 7 0 0 6 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 definition of “hours worked” in the form of an exception. See 29 C.F.R. § 785.6. The regulations promulgated by the Department of Labor set forth a general principle of “compensable work” as follows: “Work not requested but suffered or permitted is work time. For example, an employee may voluntarily continue to work at the end of a shift. He may be a pieceworker, he may desire to finish an assigned task or he may wish to correct errors, paste work tickets, prepare time reports or other records. The reason is immaterial. The employer knows or has reason to believe that he is continuing to work and the time is working time.” 29 C.F.R. § 785.11 (2006). While Section 785.11 provides that an employer must pay for work it suffers or permits, “an employer cannot suffer or permit an employee to perform services about which the employer knows nothing. Presumably for this reason, 29 C.F.R. § 785.12 inserts knowledge as a required element when an employee must be paid.” Holzapfel v. The Town of Newburgh. N.Y., 145 F.3d 516, 524 (2d. Cir. 1998). Consequently, for compensation to be awarded, an employer’s actual or imputed knowledge that an employee is working is a necessary condition to finding the employer suffers or permits that work. Forrester v. Roth’s I.G.A. Foodliner, Inc., 646 F.2d 413, 414 (9th Cir.1981); see also Wood v. Mid-America Mgmt. Corp., 192 Fed.Appx. 378, 381 (6th Cir.2006) (“[T]he employee bears some responsibility for the proper implementation of the FLSA’s overtime provisions. . . And an employee cannot undermine his employer’s efforts to comply with the FLSA by consciously omitting overtime hours for which he knew he could be paid.”) “[W]here an employer has no knowledge that an employee is engaging in overtime work and that employee fails to notify the employer . . . the employer’s failure to pay is not a violation of § 207.” (Id.) Without knowledge, an employer has no opportunity to comply with the Act. (Id.) “The relevant knowledge is not ‘I know that the employee was working,’ but ‘I know the employee was working and not reporting his time.’” Raczkowski v. TC Const. Co., Inc., 8 F.3d 29 (table), 1993 WL 385483, at *1 (9th Cir.1993). Under the FLSA, if an employer establishes a reasonable Case 2:15-cv-02567-SRB Document 40 Filed 09/02/16 Page 6 of 9 O G L E T R E E , D E A K IN S , N A S H , S M O A K & S T E W A R T , P .C . 2 4 1 5 E a s t C a m e l b a c k R o a d , S u it e 8 0 0 P h o e n ix , A r iz o n a 8 5 0 1 6 (6 0 2 ) 7 7 8 -3 7 0 0 7 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 process for an employee to report uncompensated work time the employer is not liable for nonpayment if the employee fails to follow the established process. White v. Baptist Mem'l Health Care Corp., 699 F.3d 869, 876 (6th Cir. 2012). Here, no reasonable jury could reasonably conclude that APS knew or should have known that Plaintiff was performing off-the-clock work.2 Plaintiff testified that his alleged off-the-clock work was voluntary. (SOF ¶ 11.) Plaintiff further testified that he knew he had to report his time, knew he needed authorization for overtime, and chose not to report his off-the-clock work. (SOF ¶¶ 5, 7, 11.) Indeed, Plaintiff even admitted that he never complained of not being paid for overtime hours to any of his supervisors until March 2015. (SOF ¶ 14.) Plaintiff also admits that although he was told during the conversation in March 2015 that he must record all of his time worked and was prohibited from working off-the-clock, he continued to work off-the-clock without the approval or knowledge of APS. (SOF ¶ 17.) Until Plaintiff’s complaint in March 2015, none of Plaintiff’s supervisors knew or had any reason to know about his alleged off-the- clock work. (Decl. of Calvin Brown, ¶¶ 7 and 10-11.) In Forrester, the Ninth Circuit held that the plaintiff was not entitled to uncompensated overtime pay under the FLSA because the defendant employer had no actual or constructive knowledge of his off-the-clock work. Foodliner, Inc., 646 F.2d 413, 414 (9th Cir.1981); see also White v. Baptist Mem’l Health Care Corp., 699 F.3d 869, 876 (6th Cir.2012); Hertz v. Woodbury Cnty., Iowa, 566 F.3d 775 (8th Cir.2009); Newton v. City of Henderson, 47 F.3d 746, 749 (5th Cir.1995); Reich v. Dep’t of Conservation & Natural Res., State of Ala., 28 F.3d 1076, 1082 (11th Cir.1994). Much like the Plaintiff did in this case, the plaintiff in Forrester testified in his deposition that he “did not mention any unpaid overtime work to any store official.” Id. The officials of the defendant employer stated in their affidavits they had no knowledge that the plaintiff 2 For purposes of this Motion only, we assume that any time Plaintiff worked beyond and in addition to his schedule hours was actually work time and was not personal or otherwise noncompensable time. Case 2:15-cv-02567-SRB Document 40 Filed 09/02/16 Page 7 of 9 O G L E T R E E , D E A K IN S , N A S H , S M O A K & S T E W A R T , P .C . 2 4 1 5 E a s t C a m e l b a c k R o a d , S u it e 8 0 0 P h o e n ix , A r iz o n a 8 5 0 1 6 (6 0 2 ) 7 7 8 -3 7 0 0 8 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 had been working uncompensated overtime hours. Id. Further, just like here, the plaintiff in Forrester knew that overtime was supposed to be reported on timesheets, that the store regularly paid for such reported overtime, and that plaintiff himself was paid for all of the overtime he reported. Id. The instant case is indistinguishable from Forrester. Plaintiff is a 30-year APS employee. Plaintiff is aware that he must record his regular time and his overtime, and it is undisputed that he received overtime pay for all overtime hours that he recorded during his entire tenure with APS, including during the period of 2014 and 2015. Plaintiff’s supervisors did not know of Plaintiff’s alleged uncompensated overtime, and Plaintiff himself admits that he never reported the time and never complained of it until March 2015. Plaintiff admits that he continued to work unauthorized overtime after being told not to, further demonstrating that he was aware of his obligations to properly record time, but chose not to do so. Thus, APS had no knowledge of Plaintiff’s alleged off-the-clock work. APS endeavored to compensate Plaintiff for all of his recorded overtime, and Plaintiff cannot present any evidence that APS knew or had any reason to know about his alleged uncompensated time. IV. CONCLUSION For all the foregoing reasons, APS respectfully requests that the Court enter summary judgment in its favor. DATED this 2nd day of September, 2016. Ogletree, Deakins, Nash, Smoak & Stewart, P.C. By s/Tracy A. Miller Tracy A. Miller Adam P. Boyd 2415 East Camelback Road, Suite 800 Phoenix, Arizona 85016 Attorneys for Defendant Arizona Public Service Company Case 2:15-cv-02567-SRB Document 40 Filed 09/02/16 Page 8 of 9 O G L E T R E E , D E A K IN S , N A S H , S M O A K & S T E W A R T , P .C . 2 4 1 5 E a s t C a m e l b a c k R o a d , S u it e 8 0 0 P h o e n ix , A r iz o n a 8 5 0 1 6 (6 0 2 ) 7 7 8 -3 7 0 0 9 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 CERTIFICATE OF SERVICE I hereby certify that on the 2nd day of September, 2016, I electronically transmitted the attached document to the Clerk’s Office using the CM/ECF Systems for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrant: PHILLIPS DAYES Trey Dayes Sean Davis 3101 North Central Avenue, Suite 1500 Phoenix, Arizona 85012 docket@phillipsdayslaw.com Attorneys for Plaintiff s/Frankie Vandehei 26061092.1 Case 2:15-cv-02567-SRB Document 40 Filed 09/02/16 Page 9 of 9