Abbe v. San Diego

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF CALIFORNIA

Marcus R. Abbe, et al.,

Plaintiffs,

vs.

City of San Diego,

Defendant.

05cv1629 DMS (JMA)

06cv0538 DMS (JMA)

2007 WL 4146696

2007 U.S. Dist. Lexis 87501

November 9, 2007, Decided

ORDER:

GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ON THE FIFTH AMENDED COMPLAINT,

DENYING PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT OR SUMMARY ADJUDICATION ON THE FIFTH AMENDED COMPLAINT,

GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT ON DEFENDANT’S AFFIRMATIVE DEFENSES, AND DENYING PLAINTIFFS’ MOTION TO STRIKE

[Docs. 227, 133, 148, 152, 158]

This action involves wage and hour claims brought by numerous police officers employed by the City of San Diego. Pending before the Court are cross motions for summary judgment on Plaintiffs’ Fifth Amended Complaint (“FAC” or “Complaint”), Plaintiffs’ motion for summary judgment on Defendant City of San Diego’s affirmative defenses, and a motion to strike Defendant’s answer to the FAC. The motions have been fully briefed and argued. While many significant issues have been raised in the briefing and are addressed in this Order, two issues have been briefed and argued extensively by the parties: (1) whether time spent donning and doffing the police uniform and safety gear is compensable, and (2) whether Defendant is partially exempt from the overtime provisions of the Fair Labor Standards Act (“FLSA”), such that it is not required to pay overtime wages to officers who work a “4/10” schedule unless such officers work more than 43 hours during a 7 day work cycle. These issues may be determined as a matter of law, and they are decided in Defendant’s favor for the reasons set forth below.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs are more than 1,000 police officers employed by Defendant at the San Diego Police Department (“SDPD”). After several rounds of motions to dismiss, on June 8, 2007, Plaintiffs filed their Fifth Amended Complaint alleging several claims for relief. (Compl., Doc. 120). The first claim alleges violations of 29 U.S.C. § 207(a) under the FLSA, which governs overtime compensation. In particular, Plaintiffs allege they were (1) not paid for time spent conducting a variety of work-related activities, such as donning and doffing uniforms, preparing for line-up, walking to and from work spaces, and other preparatory activities; (2) not paid for overtime incurred; and (3) not properly reimbursed for a variety of work-related expenses, such as purchasing and cleaning uniforms, weapons, and other related gear. (Compl. P 26-29). Plaintiffs further allege Defendant violated the FLSA voluntarily, deliberately, and intentionally. (Compl. P 28). The second claim is for breach of contract, alleging Defendant did not comply with the Memorandum of Understanding (“MOU”) governing the employment relationship between the parties. (Compl. P 30-37). Third, Plaintiffs claim liquidated damages pursuant to 29 U.S.C. § 216(b). (Compl. P 38-43). Finally, Plaintiffs allege Defendant failed to implement a Compensatory Time Off (“CTO”) program that complies with 29 U.S.C. § 207(o). (Compl. P 44-50). Defendant answered the FAC and asserted twenty-one affirmative defenses, many of which are addressed in this Order.

On August 8, 2007, the Court issued an order establishing two phases for the parties’ anticipated motions for summary judgment. In the first phase, the parties were to address only the issue of liability and to rely upon testimony of 110 representative Plaintiffs, selected by Plaintiffs’ counsel. n1 A second phase, if necessary, would allow the parties to address damages. (Order May 25, 2007, Doc. 118). The motions currently before the Court are filed in Phase I of the proceedings and address only liability related issues.

Combining the parties’ motions, the following questions are presented for resolution: (1) whether certain pre- and post- shift activities, such as donning and doffing uniforms and safety equipment, loading vehicles, and traveling are compensable under the FLSA; (2) whether Defendant qualifies for a partial exemption from overtime pay pursuant to 29 U.S.C. § 207(k); (3) whether Defendant is entitled to an offset under 29 U.S.C. § 207(h) for any overtime pay owed; (4) whether Defendant wilfully violated the FLSA, entitling Plaintiffs to a three-year rather than two-year statute of limitations pursuant to 29 U.S.C. § 255(a); (5) whether Defendant acted in good faith pursuant to 29 U.S.C. § 260 regarding Plaintiffs’ liquidated damages claim; (6) whether Defendant’s implementation of its CTO program complied with 29 U.S.C. § 207(o); (7) whether Plaintiffs’ breach of contract claim is properly dismissed for lack of subject matter jurisdiction; and (8) whether summary judgment is appropriate as to any of Defendant’s affirmative defenses. These issues are addressed below.

II. CROSS MOTIONS FOR SUMMARY JUDGMENT

A. Legal Standard

Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure where there is an absence of a genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). 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, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997). 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.” Anderson, 477 U.S. at 248.

A party seeking summary judgment bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. The moving party can satisfy this burden in two ways: (1) by presenting evidence to negate an essential element of the nonmoving party’s case; or (2) by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element essential to that party’s case on which that party will bear the burden of proof at trial. Id. at 322-23. If the moving party fails to meet this initial burden, summary judgment must be denied and the court need not consider the nonmoving party’s evidence. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 159-60, 90 S. Ct. 1598, 26 L. Ed. 2d 142(1970).

If the moving party meets this initial burden, the nonmoving party cannot defeat summary judgment by merely demonstrating “that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986); Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995) (“The mere existence of a scintilla of evidence in support of the nonmoving party’s position is not sufficient.”) (citing Anderson, 477 U.S. at 252). Rather, the nonmoving party must “go beyond the pleadings and by [his or] her 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, All U.S. at 324 (quoting Fed. R. Civ. P. 56(e)). “Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment.” T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). Moreover, “the district court may limit its review to the documents submitted for the purposes of summary judgment and those parts of the record specifically referenced therein.” Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1030 (9th Cir. 2001). Notably, the court is not obligated “to scour the record in search of a genuine issue of triable fact.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir, 1996) (citing Richards v. Combined Ins. Co., 55 F.3d 247,251 (7th Cir. 1995)).

When making its determination, the court must view all inferences drawn from the underlying facts in the light most favorable to the party opposing the motion. See Matsushita, 475 U.S. at 587. “Credibility determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, [when] he is ruling on a motion for summary judgment.” Anderson, 477 U.S. at 255 .

B. Donning and Doffing Uniforms and Safety Equipment

Plaintiffs and Defendant have filed cross motions for summary judgment, in which both parties seek a determination concerning whether time spent donning and doffing Plaintiffs’ uniforms and safety equipment pre-shift and post-shift is compensable under the FLSA. This is a mixed question of law and feet. “The nature of the employees’ duties is a question of fact, and the application of the FLSA to those duties is a question of law.” Ballaris v. Wacker Siltronic Corp., 370 F.3d 901, 910 (9th Cir. 2004). The FLSA requires employers to pay employees for all “work” they perform. 29 U.S.C. §§ 206 - 207. What constitutes work is the crux of the issue here. In addressing this issue, the Portal-to-Portal Act, codified at 29 U.S.C. § 254(a), is the starting point.

Under the Portal-to-Portal Act, employers are not required to compensate for either: “(1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, [or] (2) activities which are preliminary to or postliminary to said principal activity or activities.” 29 U.S.C. §254(a)(1)-(2) . Thus, under the FLSA, as amended by the Portal-to-Portal Act, an employee is entitled to compensation only for “principal activities” that the employee is hired to perform, and not for tasks that are “preliminary” or “postliminary” to such principal activities. An activity is not preliminary (and thus compensable) if it is “an integral and indispensable part of the principal activities.” Steiner v. Mitchell, 350 U.S. 247, 256, 76 S. Ct. 330, 100 L. Ed. 267 (1956). An integral and indispensable activity is one that is (1) necessary to the principal work, and (2) done for the benefit of the employer. Alvarez v. IBP, Inc., 339 F.3d 894, 902-903 (9th Cir. 2003).

It is undisputed that Plaintiffs are not compensated for time spent donning or doffing their standard issued class “B” uniform, which consists of a bulletproof vest, Sam Browne (gun) belt, boots, blue pants, white undershirt, blue uniform shirt, regular belt, badge, name tag, and brass fixings. (See Undisputed Material Fact (“UMF”) 80). It is further undisputed that the Sam Browne belt includes OC spray, radio, radio carrier, impact weapon -- e.g., collapsible baton, handcuffs, handcuffs case, handgun, handgun holster, and ammunition carrier. n2 (See UMF 81).

Plaintiffs contend they are entitled to compensation for time spent donning and doffing their uniform (including uniform and safety gear) because such activity is an integral and indispensable part of the principal activities for which they are employed. Plaintiffs argue that the uniform itself is essential to the discharge of their law enforcement duties and, therefore, such dress-related activity is compensable. Defendant, on the other hand, concedes the uniform is essential to the discharge of law enforcement duties, but argues Plaintiffs are not entitled to compensation for donning and doffing the uniform because such activity is not required to be performed at work. As such, Defendant argues the dress-related activity is not integral and indispensable to Plaintiffs’ principal activities.

The determination of whether donning and doffing a uniform is compensable begins with Steiner, the seminal case on the subject. In Steiner, the Supreme Court held that donning and doffing uniforms was compensable when employees handling dangerous chemicals in a wet storage battery factory were “compelled by circumstances, including vital considerations of health and hygiene, to change clothes and to shower in facilities which state law requires their employer to provide.” Steiner, 350 U.S. at 248. The factory workers in Steiner were exposed to high levels of lead particles (dust and fumes), which “permeate[d] the entire plant and everything and everyone in it.” Id. at 249. Lead dust attached to the skin, hair, clothing and shoes of the employees, and presented significant risks to family members of the workers because toxic particles could be “brought home in the workers’ clothing or shoes.” Id. at 250. Consequently, the workers were issued old but clean clothes on-site, and were required to don and doff the clothes at the factory and shower on the premises before leaving in order to minimize health risks to themselves and others. Under these circumstances, the Court had “no difficulty” concluding that these dress-related activities were compensable under the FLSA. Id. at 255.

Following the Supreme Court’s decision in Steiner, the Department of Labor issued regulations providing further guidance about the types of dress-related activities that require compensation under the FLSA. One such regulation, 29 C.F.R. § 790.8(c), describes “principal activity” as follows:

Among the activities included as an integral part of a principal activity are those closely related activities which are indispensable to its performance. If an employee in a chemical plant, for example, cannot perform his principal activities without putting on certain clothes, changing clothes on the employer’s premises at the beginning and end of the workday would be an integral part of the employee’s principal activity. On the other hand, if changing clothes is merely a convenience to the employee and not directly related in his principal activities, it would be considered as a ‘preliminary’ or ‘postliminary’ activity rather than a principal part of the activity.

29 C.F.R. § 790.8(c) (emphasis added).

More recently, in an advisory memorandum regarding the Supreme Court’s recent decision in IBP v. Alvarez, 546 U.S. 21, 126 S. Ct. 514, 163 L. Ed. 2d 288 (2005), the Department of Labor reiterated its view that the FLSA does not require compensation for donning and doffing gear at home. It opines:

Therefore, the time, no matter how minimal, that an employee is required to spend putting on and taking off gear on the employer’s premises is compensable ‘work’ under the FLSA. [P] However, donning and doffing of required gear is within the continuous workday only when the employer or the nature of the job mandates that it take place on the employer’s premises. It is our longstanding position that if employees have the option and the ability to change into the required gear at home, changing into that gear is not a principal activity, even when it takes place at the [place of employment].

Wage & Hour Adv. Mem. No. 2006-2 (May 31, 2006) (emphasis added).

The Department of Labor consistently has maintained that time spent donning and doffing a uniform or safety gear at home is not compensable work under the FLSA because such activity is not part of the continuous workday and is not integral and indispensable to the principal activities of the employee. On the other hand, when the employer or the nature of the work mandates that such activity take place at work, it is compensable. The Agency’s interpretation of the FLSA is “entitled to great weight as part of ‘a body of experience and informed judgment.”‘ Wirtz v. Wester Compress Co., 330 F.2d 19 (9th Cir. 1964) (citation omitted).

In Ballaris v. Wacker Siltronic Corp. 370 F.3d 901, 903 (9th Cir. 2004), the Ninth Circuit noted with approval the Department of Labor’s position regarding the compensability of donning and doffing clothing when it is required to be performed at work. The court stated that “‘where the changing of clothes on the employer’s premises is required by law, by rules of the employer, or by the nature of the work,’ the activity may be considered integral and indispensable to the principal activities.” Id. at 903 (citing 29 C.F.R. § 790.8(c) n.65). Applying the regulation, the court in Ballaris held that the process of donning and doffing full-body gowns or “bunny suits” on the employer’s premises before entering “cleanrooms” to handle sensitive silicon products was compensable because, among other things, the employer required its employees to change into and out of the uniforms at the plant. Id. at 911-12.

Similarly, in Alvarez, 339 F.3d at 903, the Ninth Circuit held that where donning and doffing gear on the employer’s premises is required by the employer, the activity is “necessary” to the “principal” work performed and thus, compensable. Id. at 903. There, meat cutters and processors were required to don and doff specialized gear at work, including liquid-repelling sleeves, aprons, and leggings, and to wipe or hose the gear on-site at the end of their shift.

Several other courts also have decided donning and doffing claims under the FLSA by focusing on employer policy and the nature of the job: if on-site changing is required, the activity is compensable; if on-site changing is not required, the activity is not compensable. See, e.g., Martin v. Richmond, 504 F.Supp.2d 766, 773-74 (N.D. Cal. 2007) (donning and doffing police uniform not compensable where officers are permitted to dress at home); Lee v. Am-pro Protective Agency, Inc., 860 F. Supp. 325, 326 (E.D. Va. 1994) (security guards entitled to compensation for dressing into uniforms on-site where “they are not allowed to change at home ...”); Bagrowski v. Maryland Port Authority, 845 F.Supp. 1116, 1121 n.6(D. Md. 1994) (officers not entitled to compensation for putting on uniforms where “[m]any officers came to work in their uniforms and nothing prevented [them] from doing so.”); Apperson v. Exxon Corp., 1979 U.S. Dist. Lexis 14564, 87 Lab. Cas. (CCH) 33,844 *22 (E.D. Cal. 1979) (compensation for changing clothes on-site not compensable “unless the employer requires that it be done ... at that location or unless the employee cannot safely wear such clothing home at the end of the day.”); Baylor v. United States, 198 Cl. Ct. 331, 337, 1972 U.S. Ct. Cl. Lexis 72 (1972) (security guards required to change into uniforms at designated locker points and not at home entitled to compensation for such dress-related activities).

Accordingly, if donning and doffing a uniform at work is required by law, employer policy or the nature of the job, the time spent performing such activity is compensable as it is necessarily part of the continuous workday and integral and indispensable to the employee’s principal activities. The question before the Court, then, is whether Plaintiffs are mandated by law, workplace policy, or the nature of the job to don and doff their uniforms, including safety gear, at work.

Clearly, neither law nor workplace policy mandates that Plaintiffs dress at work. Indeed, Plaintiffs’ own evidence indicates that officers are free to dress at home. For example, Plaintiffs cite the deposition of Sergeant Alexis Blaylock, who testified, “I dressed at home a lot; most of the time.” (Blaylock Depo. 23:11-12). Plaintiff Randal W. Eichmann stated he usually polished his boots and “leather stuff at home, (Eichmann Depo, P’s Ex. 21 at 83:15-22), and Plaintiff Dale Shockley stated he sometimes puts on his uniform pants and gun at home. Numerous other employees also indicated dressing at home was part of their regular routine. Plaintiffs also do not dispute that they may, and do, don their Sam Browne belt at home. n3

Moreover, the nature of the work does not require donning and doffing the uniform at work. Plaintiffs point out that some officers do not like being in uniform when traveling to and from work because some people react negatively to officers, thus subjecting officers to retaliatory acts that threaten their safety. (Sweeney Depo. at 54-55:24-25, 1-18). But it is undisputed that uniforms are required to be covered while off duty, such as with a jacket or sweater over the uniform shirt. (See UMF 83; Polk Depo at 28:16-29:10; Shockly Depo at 87:1-16). Plaintiffs’ evidence, therefore, does not create a genuine issue of material fact, as the safety concerns expressed by Plaintiffs are addressed by Defendant’s off-duty policy. Plaintiffs have not presented any evidence that covering the uniform is ineffective or an otherwise illusory measure to address their safety concerns. No evidence, for example, has been presented that any officer has encountered a hostile situation while en route to or from work in uniform.

Plaintiffs also argue the nature of their work requires donning and doffing the Sam Browne belt at work. They contend: (1) wearing the gun belt while traveling to work causes damage to the interior of the officer’s personal vehicle (P’s Opp. to D’s MSJ at 21); (2) taking weapons home raises safety concerns for those officers with children (e.g., Brown Depo at 91:24-92:10); (3) wearing equipment off-duty makes officers a target of discontented citizens (Id. at 93:3-9); and (4) keeping equipment in lockers at work is convenient. (Id. at 50:21-51:11).

This evidence is insufficient to create a genuine issue of material fact as to whether the nature of the work requires donning and doffing such gear at work. Specifically, convenience concerning storage of gear and minimizing damage to the interior of personal vehicles is insufficient. What prompts some Plaintiffs to don their gun belts at work is the nature of the equipment, not the nature of the work. “[l]f employees have the option and the ability to change into the required gear at home,” changing into that gear for their own convenience simply does not make that activity “a principal activity, even when it takes place” at work. See Wage & Hour Adv. Mem. No. 2006-2 (emphasis added).

Plaintiffs’ concerns about safety of those around them at home also do not raise a material question of fact. Plaintiffs provide no evidence concerning actual harm to others or that they are unable to lock or otherwise safely store their weapons at home, and any inconvenience associated therewith does not render the activity compensable. Finally, Plaintiffs’ concerns about retaliatory acts by others are adequately addressed by Defendant. As stated, Defendant requires officers who dress at home to cover their uniform so they are not readily identifiable as officers. Plaintiffs admit that those among them who dress at home, cover their uniform while traveling to and from work. Further, as mentioned, Plaintiffs have presented no evidence of any retaliatory acts or hostile encounters stemming from officers donning and doffing uniforms or safety gear at home. n4

Plaintiffs’ principal argument is that the nature of the uniform itself is indispensable to discharging the principal functions of the job and, therefore, donning and doffing the uniform is compensable. It is important to note, however, that the relevant inquiry is not whether the uniform itself or the safety gear itself is indispensable to the job -- they most certainly are -- but rather, the relevant inquiry is whether the nature of the work requires the donning and doffing process to be done on the employer’s premises. Clearly, when employees are required to dress and shower at work to contain hazardous substances, Steiner, 350 U.S. at 247, or to don and doff specialized equipment at work, and to clean the equipment on site at the end of their shifts in order to maintain the equipment and sanitation, Alvarez, 339 F.3d at 894, or to don and doff specialized gowns at work to maintain a pure environment in cleanrooms, Ballaris 370 F.3d at 901, the process of donning and doffing must be done at work to accomplish the essential duties of the job safely and effectively.

Here, in contrast to the donning and doffing activities in Steiner, Alvarez, and Ballaris, there is nothing about the process of donning and doffing a class “B” uniform that must be done at work in order for an officer to safely and effectively carry out his or her law enforcement duties. Since the Court has been directed to no evidence suggesting Plaintiffs are required by law, policy, or the nature of their work to don and doff their uniform or safety equipment at work, Defendant is entitled to judgment on grounds that donning and doffing the uniform in question is not integral and indispensable to the principal activities of employment. Accordingly, Defendant’s motion for summary judgment on this issue is granted.

In addition, even where an activity is integral to the principal activities of employment and otherwise compensable, an employee is not entitled to compensation if the time spent performing such activity is insubstantial or insignificant. See 29 C.F.R. §785.97 (“Insubstantial or insignificant periods of time beyond the scheduled working hours... may be disregarded” under the FLSA.). As a general rule, “employees cannot recover for otherwise compensable time if it is de minimis.” Lindow v. United States, 738 F.2d 1057, 1061-62 (9th Cir. 1984). “Most courts have found daily periods of approximately 10 minutes de minimis even though otherwise compensable.” Id. at 1063. Here, it is undisputed that donning and doffing protective gear (vest and gun belt) takes less than 10 minutes. (See UMF 91 & 92). Therefore, time spent donning and doffing safety gear is de minimis and non-compensable as a matter of law. Plaintiffs, however, have raised a question of fact concerning whether the time it takes to don and doff the entire uniform is de minimis. (See, e.g., Kries Depo., 46:21-47:6 -- at least 20 minutes to don uniform, vest and gun belt). The grant of summary judgment in favor of Defendant regarding de minimis dress-related activity is therefore limited to Plaintiffs’ safety gear and does not include other aspects of the class “B” uniform.

Finally, separate and apart from the Portal-to-Portal Act, Defendant is entitled to summary judgment under 29 U.S.C. § 203(o) as to donning and doffing certain aspects of the uniform. Section 203(o) provides that under certain circumstances “changing clothes” is not compensable under the FLSA. Specifically, Section 203(o) excludes from “hours worked” any “time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective bargaining agreement applicable to the particular employee.” 29 U.S.C. § 203(o) (2007). Accordingly, under Section 203(o), any time spent changing clothes at the beginning or end of the workday that is excluded from measured working time by, among other things, a custom or practice that has developed under a collective bargaining agreement, is not compensable.

The term “clothes” as used in Section 203(o), plainly includes all aspects of the uniform in question, with exception perhaps of the safety gear. n5 As it is undisputed that Plaintiffs have never been compensated for donning and doffing their uniform, there is a pattern and practice established under the MOU, and Plaintiffs are not entitled to compensation for this activity. (UMF 89). Accordingly, Plaintiffs’ donning and doffing of the uniform (not including safety equipment) falls within Section 203(o) and is non-compensable.

C. Activities other than Donning and Doffing Uniforms and Safety Equipment

Other than donning and doffing uniforms and safety equipment, neither party has supplied the Court with a comprehensive list of specific activities both parties agree are at issue. The Complaint alleges no such comprehensive list, noting that the list of pre-shift and post-shift activities for which Plaintiffs claim compensation is “not limited to” the list contained in the Complaint. (Compl. p 21 (a)). Moreover, with regard to the activities both sides agree upon, there remain genuine issues of material fact as to the importance of these activities, the time it takes to complete them, and the ability to complete them during the shift.

However, Defendant’s most strenuous argument is that it had no actual or constructive knowledge that Plaintiffs were working uncompensated overtime. Without such knowledge, Defendant cannot be said to “suffer or permit” the work and thus, cannot be held liable for unpaid time. See 29 C.F.R. § 785.11 ; Fox v. Summit King Mines, Ltd., 143 F.2d 926, 932 (9th Cir. 1944) (“suffer” and “permit” mean “with the knowledge of the employer.”). Resolution of this issue does not require agreement upon a complete list of activities in dispute or upon the nature of the activities. The only potential question of fact is whether Defendant was or should have been aware that Plaintiffs were not reporting overtime actually worked. Defendant urges the Court to find that Plaintiffs’ failure to report the presently-claimed overtime is conclusive proof that Defendant lacked the requisite knowledge. n6

A plaintiff’s failure to report overtime does not automatically relieve Defendant from the obligation to pay it. “An employer who is armed with [knowledge that an employee is or was working overtime] cannot stand idly by and allow an employee to perform overtime work without proper compensation, even if the employee does not make a claim for the overtime compensation.” Forrester v. Roth’s IGA Foodliner, Inc., 646 F.2d 413,414 (9th Cir. 1981). Plaintiffs claim that supervisors and management of SDPD performed overtime work without compensation and admitted not receiving compensation themselves. (P’s Opposition to D’s MSJ at 29). Plaintiffs argue that this knowledge should be imputed to Defendant. (Id.). However, Plaintiffs have failed to direct the Court to any relevant evidence. Plaintiffs’ mere assertion, without pointing the Court to evidence, is not enough to create a fact question. See Keenan, 91 F.3d at 1279 (court not obligated “to scour the records in search of a genuine issue of triable fact.”). Moreover, even if the Court were to take Plaintiffs’ unsupported assertions as true, those assertions are irrelevant to the question at issue: whether these supervisors and managers had knowledge of Plaintiffs’ unreported overtime work.

To that end, Plaintiffs point to the testimony of three representative Plaintiffs to demonstrate management and supervisors knew that officers arrived early to prepare for lineup, read through “most wanted” bulletins, and stayed late. (P’s Response to D’s MSJ at 16). But mere knowledge that overtime is worked is not evidence of knowledge that such overtime was unreported. See, e.g., Newton v. City of Henderson, 47 F.3d 746, 749 (5th Cir. 1995).

Finally, Plaintiffs offer testimony supporting an inference that a culture existed in which officers were discouraged from reporting overtime less than thirty or sixty minutes in length, depending on the precinct. (P’s MSJ at 20) (See, e.g. D’s Ex. 74 (Kries) 27: 7-12, in Supp. of D’s UMF 46). The existence of such a culture would be enough to support an inference that Defendant knew Plaintiffs failed to report overtime in such increments. Defendant offers evidence supporting an inference that (1) such a culture did not exist during the limitations period (D’s Ex. 51 (Sweeney) 48:18-25); (2) the culture was not strong enough to constitute real discouragement of submission of overtime (D’s Ex. 52 (Tai) 19:19-23); and (3) it had specifically instructed officers to report all overtime, so it lacked knowledge of any unreported overtime. (D’s Ex. 14 (Blaylock) 42:21-25, 43:1-8, 51:18-25, 52:1-6, 13-25, 53:1-4).

Given the competing evidence on this issue, triable questions of fact remain that cannot be resolved on summary judgment. As such, the cross motions on this issue are denied.

D.Travel and Walking Time.

Walking and travel time is compensable if it takes the employee from one principal activity to another. It is not compensable if it takes the employee between preliminary activities, or between a preliminary activity and principal activities at the workplace. 29 C.F.R. § 790.7(c). Because questions of fact remain as to which pre- and post-shift activities are principal and which are preliminary, summary judgment is denied as to both parties on this issue.

E. Overtime Pay and 29 U.S.C. § 207(k)

Section 207(a)(1) of the FLSA provides that employees are entitled to receive overtime pay at one and one-half times their regular rate for all hours worked in excess of forty per week. 29 U.S.C. § 207(a)(1). There are exceptions, however, and one such exception is at issue here. Section 7(k) of the FLSA, found at 29 U.S.C. § 207(k), allows public agencies a partial exemption from the overtime provisions of Section 207(a)(1) for “any employee in fire protection activities or any employee in law enforcement activities” to whom “a work period of at least 7 but less than 28 days applies.” 29 U.S.C. § 207(k). Such employees are entitled to time and one-half pay only after they have worked more than 171 hours in a 28 day work period or approximately 43 hours in a 7 day work period. 29 U.S.C. § 207(k)(2).

A “work period,” as used in Section 7(k), means any “established and regularly recurring period of work which ... cannot be less than 7 consecutive days nor more than 28 consecutive days.” 29 C.F.R. § 553.224(a). At issue is whether Defendant “established” a work period of not less than 7 consecutive days nor more than 28 consecutive days, and if so, whether that work period was “regularly recurring.” See Adair v. City of Kirkland, 185 F.3d 1055, 1060 (9th Cir. 1999) (citations omitted).

1. “Established”

The employer carries the burden of demonstrating that a Section 7(k) compliant work period has been established. “Whether an employer meets this burden is normally a question of fact.” Adair, 185 F.3d at 1060. Although this Court has not uncovered any authority which discusses the meaning of the term “established” as used in Section 7(k), an examination of that term in a related context is instructive. For example, in determining whether an ERISA plan has been established, it has been held that the “mere decision to extend benefits does not ‘establish’ a plan within the meaning of ERISA; instead it is the reality of a plan that is determinative.” Weinstein v. Paul Revere Insurance Co., 15 F. Supp. 2d 552 (D.N.J. 1998) (emphasis added).

With respect to Section 7(k), courts have held that a Section 7(k) work period may be “manifested by an appropriate public declaration of intent to adopt a work period of between 7 and 28 days.” McGrath v. City of Philadelphia, 864 F. Supp. 466, 476 (E.D. Pa. 1994), citing Lamon v. City of Shawnee, 972 F.2d 1145, 1154 (10th Cir. 1992) (“City adopted Administrative Code No. 2-5, setting forth the City’s § 207(k) employment policy.”). In addition, an employer may establish a 7(k) work period “even without making a public declaration, as long as its employees actually work a regularly recurring cycle of between 7 and 28 days.” McGrath, 864 F.Supp. at 476, citing Birdwell v. City of Gadsden, 970 F.2d 802, 806 (11th Cir. 1999) (stating directed verdict on existence of a Section 7(k) plan would be appropriate based on uncontradicted evidence that employees actually worked a regularly recurring work period that was set out in their employment contract).

Here, Defendant has taken the latter route. Plaintiff’s do not dispute that they “actually work” a cycle of 7 consecutive days. (See UMF 3) (“The vast majority of sworn police officers work the so-called ‘4/10’ plan, which is . . . a work period of seven days, with four, ten-hour days on-duty, and three days off.”). It is also undisputed that this schedule has been in place at all relevant times. The MOU indicates that as of July 1, 2003, “the 4/10 plan applied to patrol and traffic assignments[,] will be applied to all sworn positions below the rank of Captain.” (MOU, July, 2003, Defendant’s Exhibit 4 at Article 33, pp. 43-44). Therefore, the undisputed facts indicate that Plaintiffs actually work a schedule that falls within the work period defined by Section 7(k). Plaintiffs so admit, and the MOU so states.

Plaintiffs nonetheless argue a question of fact exists as to whether a Section 7(k) schedule was established since: (1) the MOU uses the phrase “five day work week schedule” to describe Plaintiffs’ schedule; (2) the San Diego City Council did not explicitly adopt a Section 7(k) work period for police officers despite doing so for fire fighters; and (3) Defendant’s payroll practices demonstrate Plaintiffs’ overtime pay is based on hours worked in excess of 40 hours per week, consistent with Section 207(a)(1) and not Section 7(k). Thus, the question before the Court is whether this evidence is sufficient to create a triable issue of feet when Plaintiffs in practice and in fact work a 7-day, Section 7(k) compliant schedule.

Notably, it is well-settled that the type of evidence set forth by Plaintiff’s does not preclude a jury from finding that a Section 7(k) schedule has been established. See, e.g., Lamon, 972 F.2d at 1154 (pattern and practice of paying overtime for hours worked in excess of 40 per week under Section 207(a)(1) does not preclude establishment of a Section 7(k) work period); Birdwell, 970 F.2d at 805-06 (the creation of a Section 7(k) work schedule does not turn on the language of the applicable collective bargaining agreement). Thus, Defendant correctly argues that even when (a) an MOU does not contain the term “207(k),” (b) the City Council failed to “announce the application of § 207(k) in an implementing ordinance,” or (c) Defendant’s payroll practices fail to conform to a 7(k) schedule, a 7-day work cycle still may be established within the meaning of Section 7(k). (See D’s Reply at 9).

The question remains, however, whether the evidence presented by Plaintiffs precludes a grant of summary judgment. In Adair, 185 F.3d at 1061, the Ninth Circuit upheld the lower court’s grant of summary judgment where the city defendant “specified the work period in the [collective bargaining agreement] and when it actually followed this period in practice.” Id. (Emphasis added). There, the employment agreement stated, “for purposes of complying with the Fair Labor Standards Act, the Patrol Division work period shall be eight days and the Detective Division seven days.” The Court must now determine whether summary judgment is appropriate here, even though the MOU in question, which docs implement a 4/10 work cycle, does not mention the FLSA by name and contains the phrase “five day work week schedule.”

In Adair, the language in plaintiffs’ agreement referring to the FLSA helped support summary judgment because it indicated that the city “intended to adopt a 7(k) work cycle.” Adair, 185 F.3d at 1061. It is unclear, however, whether the “intent” referenced in Adair is (a) simply the intent to implement a work cycle that happens to comply with Section 7(k), or (b) the intent to adopt a work cycle so as to benefit from the Section 7(k) over-time exemption. If Adair requires only the former, the undisputed implementation of the 7-day recurring schedule here, coupled with the agreement to implement a 4/10 schedule in the MOU, is conclusive evidence of such intent. If the latter intent is required, Plaintiffs’ evidence regarding the MOU’s use of the phrase “five day work week schedule” and the City Council’s failure to adopt a Section 7(k) work period would create a triable issue of fact, since it would tend to prove Defendant did not implement the 4/10 schedule in order to benefit from the Section 7(k) exemption. n7

The plain language of 29 U.S.C. § 207(k), as well the regulations discussing the exemption, indicate that the implementation of a work cycle that falls within Section 7(k) is sufficient, regardless of whether the employer has the FLSA in mind at the time of implementing the work cycle. As discussed, the FLSA, through Section 7(k), provides that no public agency employer of law enforcement personnel “shall be deemed to have violated” Section 207(a)(1) “in the case of such an employee to whom a work period of at least 7 but not less than 28 days applies . . . .” 29 U.S.C. § 207(k) (emphasis added). Further, according to the Code of Federal Regulations, a compliant “work period” is any “established and regularly recurring period of work.” It is significant that the word “established” refers to the period of work -- that is, the schedule itself. Once a work period is “established,” Section 7(k) specifies that an employer does not violate the overtime provision set forth in Section 207(a)(1) so long as the work cycle “applies” to the employee in question. 29 U.S.C. § 207(k). There is no suggestion in the language of Section 7(k) that an employer must affirmatively invoke the exemption.

Courts considering the issue similarly have emphasized the establishment of the schedule rather than the establishment of the exemption. See Spradling v. City of Tulsa, 95 F.3d 1492, 1504 (10th Cir. 1996) citing Avery v. City of Talladega, 24 F.3d 1337, 1343 (11th Cir. 1994) (“To qualify for the exemption, the employer must establish the employees in question have a work period of at least seven, but not more than twenty-eight consecutive days.”) Moreover, although a public declaration is not necessary to establish a Section 7(k) schedule, courts have held that if a public declaration exists, it must be a “declaration of intent to adopt a work period of between 7 and 28 days,” not a declaration of intent to adopt a work cycle within the meaning of Section 7(k). See Adair, 185 F.3d at 1061, citing Spradling, 95 F.3d at 1505.

Since Section 7(k) does not require an intent to fall within the exemption, the City Council’s failure to explicitly adopt a Section 7(k) exemption when given the opportunity, the MOU’s failure to mention the FLSA by name, or the MOU’s description of the 4/10 schedule as a “five day work week schedule,” n8 does not create a triable issue of fact concerning whether Defendant established a work schedule that is compliant with Section 7(k).

Plaintiffs argue that if the MOU’s reference to a “five day work week schedule” does not create a triable issue of fact, Defendant would be allowed to evade its contractual responsibilities to Plaintiffs. (Oral Arg. at 28). This argument, however, conflates Defendant’s obligations under the contract (MOU) with its obligations under federal law. Plaintiffs have brought a claim for breach of contract. That claim, rather than a claim under the FLSA, provides the proper vehicle for enforcement of contractual rights. See Birdwell, 970 F.2d at 806, citing Wethington v. City of Montgomery, 935 F.2d 222, 229 (11th Cir. 1991) (“[W]hile there may be a breach of contract, the FLSA is not violated if the FLSA does not cover the situation.”). See also Lamon, 972 F.2d at 1154 (verdict upheld where defendant had established a Section 7(k) schedule despite a pattern and practice of paying overtime after only 40 hours worked per week). Defendant’s alleged breach of promise to pay employees more overtime than required by the FLSA is simply irrelevant to whether Defendant violated the FLSA.

In McGrath, 864 F.Supp. at 477, the court held that reference in a collective bargaining agreement to a forty-hour week created a question of fact as to whether the employer established a Section 7(k) schedule, even though it was undisputed that employees actually worked a Section 7(k) work cycle. This Court, however, respectfully declines to adopt the reasoning of McGrath on this issue, as its holding permits the possibility of a jury verdict that is contrary to the plain language of Section 7(k). In other words, the holding in McGrath would allow a jury to find that a Section 7(k) exemption was not established, in the face of uncontradicted evidence that a 7(k)-compliant work cycle actually existed in practice. Such a result would be contrary to the express language of Section 7(k); that is, if a 7 to 28 day, recurring work cycle “applies” to an employee, the employer is not required to pay overtime wages to the employee unless the employee works more than 171 hours in a 28 day work period or more than 43 hours in a 7 day work period. To allow a jury to reach a contrary result under such circumstances, would be to invite a Rule 50 motion at the conclusion of the proceedings. n9 Accordingly, given the undisputed facts here -- that Plaintiffs actually work a Section 7(k) compliant schedule -- the issue whether Defendant established a Section 7(k) schedule is properly decided as a matter of law. None of the evidence presented by Plaintiffs creates a genuine issue of fact regarding the establishment of a Section 7(k) schedule. Because Plaintiffs actually work such a schedule, the exemption applies.

2. “Regularly Recurring”

Plaintiffs’ final attempt to defeat Section 7(k) eligibility is to argue (but provide no evidence) that since any given police officer works a “four month deployment,” there is no “recurring” schedule within the meaning of Section 7(k). (Oral Arg. at 17:13-15). The nature of the deployment schedule is undisputed. For four months at a time, each Plaintiff on the 4/10 schedule works a recurring cycle of four days on, three days off per seven-day week. (Oral Arg. at 17). Although each such Plaintiff is given a new, recurring seven-day schedule every four months, the seven-day cycle always remains in place. The deployment schedule does not, therefore, destroy Defendant’s eligibility for a Section 7(k) exemption. Summary judgment is therefore granted in favor of Defendant on this issue and against all Plaintiffs who work the 4/10 schedule.

The remaining issue is whether Plaintiffs’ “gap time” hours, i.e., hours worked between 40 and 43 hours per week, are compensable. At least one court has held that such hours are to be compensated at the employees’ “normal hourly rate.” Lamon, 754 F. Supp. at 1521 n.1. However, in keeping with the notion that the FLSA is a minimum standard that may not be waived by contract, the majority of courts have held that employees are not entitled to compensation for such time under the FLSA. As long as the actual number of hours worked divided by the employee’s salary at the regular rate does not fall below the minimum wage requirements of the FLSA, a “pure gap time” claim is untenable. See Monahan v. County of Chesterfield, 95 F.3d 1263, 1284 (4th Cir. 1996); Hensley v. MacMillan Bloedel Containers, Inc., 786 F.2d 353, 357 (8th Cir. 1986); Robertson v. Board of County Comm’rs, 78 F. Supp. 2d 1142, 1159 (D. Colo. 1999). This Court finds the latter approach persuasive. Thus, unless Plaintiffs can establish a minimum wage violation, they have no claim under the FLSA for gap time pay.

F. Offset under 29 U.S.C. § 207(h).

Defendant may offset payments for meal periods, certain premium pay and holiday pay against any overtime compensation owed under 29 U.S.C. § 207(h)(2). Plaintiffs initially argue Defendant is ineligible for such offsets because Defendant acted in bad faith. (P’s Opp. to D’s MSJ at 34). But good faith is not a prerequisite under Section 207(h)(2). As such, Defendant is eligible for these offsets.

Defendant argues that any liability for overtime compensation is offset by premium payments made to Plaintiffs as well as paid meal periods. However, there are material questions of fact that preclude summary judgment. For example, the MOU at 144-45 indicates the parties bargained for unpaid meal periods. Although this is not conclusive evidence that meal periods in fact were unpaid, it does create a question of fact. Plaintiffs also have raised a question of fact as to whether there was a culture of discouraging submission of overtime up to one hour per day. Defendant’s motion is therefore denied on these grounds.

G. Willful Conduct Under 29 U.S.C. § 255(a).

Both parties have presented competing, admissible evidence on this issue. The determination of wilfulness depends upon an assessment of the credibility of the testimony presented. Therefore, Plaintiffs’ summary judgment motion on this issue is denied.

H. Liquidated Damages Under 29 U.S.C. § 216(b).

29 U.S.C. § 216(b) provides for liquidated damages in the amount of overtime compensation owed, in addition to compensatory damages. However, if an “employer shows . . . the act or omission giving rise to [the FLSA action] was in good faith,” liquidated damages may not be awarded. 29 U.S.C. § 260. Because genuine issues of material fact remain as to the amount of overtime owed, and whether Plaintiffs are entitled to liquidated damages, summary judgment is denied.

I. Compensatory Time Off -- 29 U.S.C. § 207(o).

Section 207(o) allows employees to receive Compensatory Time Off (“CTO”) instead of overtime pay if such an arrangement is adopted in a collective bargaining agreement. With some limitations, CTO may be accrued, redeemed or paid annually according to agreement. Neither party disputes that at all relevant times, Plaintiffs and Defendant operated under a legally binding CTO agreement.

Plaintiffs allege that Defendant failed to redeem CTO within a reasonable time, or failed to pay that time. Plaintiffs present the testimony of one employee whose request to redeem CTO was rejected “due to staffing.” (P’s Response to D’s SS, UMF 125, Sweeney Depo. at 53-54). Section 207(o), however, allows an employer to deny a request to redeem CTO when granting it would be “unduly disruptive.” For example, CTO requests need not be approved where such requests would cause staffing to fall below minimum levels. See, e.g. Mortensen v. County of Sacramento, 368 F.3d 1082, 1084-85 (9th Cir. 2004).

Plaintiffs argue Mortensen is distinguishable because here, Defendant “systematically understaff[ed] its police force thereby making its promise to grant CTO illusory.” (P’s Opp. to D’s MSJ at 37). However, Plaintiffs’ assertion is not in any way supported by the evidence presented. Plaintiffs direct the Court only to the testimony of Paul Cooper, a lawyer who serves as an assistant to the Chief of Police and was designated as Defendant’s person most knowledgeable on the issue of CTO, who stated SDPD “was in the middle of a staffing problem or challenge.” (Cooper Depo. at 26:9-13). While this evidence shows SDPD was in the midst of staffing problems, it does not demonstrate the problem was of Defendant’s making. Since the evidence presented by Plaintiffs does not create a question of fact, Defendant’s motion for summary judgment on this claim is granted.

J. Beach of Contract Claim.

Defendant asks the Court to dismiss the breach of contract claim pursuant to 28 U.S.C. § 1367. Because the FLSA claim has not been dismissed, Defendant’s motion to dismiss the contract claim is denied.

K. Damages-Related Issues.

Plaintiffs have moved for summary adjudication regarding the number of uncompensated hours worked. The motion is denied without prejudice as it relates to damages. Such matters may be addressed in the Phase II briefing.

III.AFFIRMATIVE DEFENSES

A. Legal Standard

Plaintiffs move for summary judgment as to Defendant’s affirmative defenses, and to strike such defenses. A motion to strike is appropriate when a defense is not pled with sufficient particularity to meet the requirements of Rule 8 of the Federal Rules of Civil Procedure. Under Rule 12(f), “the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent or scandalous matter.” Fed. R. Civ. P. 12(f). A defense is sufficient if it gives Plaintiffs “fair notice of the defense.” Wyshak v. City Nat’l Bank, 607 F.2d 824, 827 (9th Cir. 1979).

B. Discussion

The motion to strike is denied in its entirety, as Plaintiffs have failed to demonstrate that any defense is redundant, immaterial, impertinent or scandalous. Plaintiffs’ motion for summary judgment on Defendant’s affirmative defenses is granted in part and denied in part as discussed below.

1. Waiver and Estoppel

Waiver is “the intentional relinquishment of a known right.” Interstate Fire & Cas. Co. v. Underwriters at Lloyd’s, London, 139 F.3d 1234, 1237 (9th Cir. 1998). Estoppel requires Defendant to establish a misrepresentation by Plaintiffs upon which Defendant reasonably relied to its detriment. See Heckler v. Cnty. Health Servs., 467 U.S. 51, 59, 104 S. Ct. 2218, 81 L. Ed. 2d 42 (1984). Plaintiffs argue that Defendant cannot identify any facts in support of its defense of waiver or estoppel. (P’s MSJ on AD’s at 8-9). In response, Defendant points to Plaintiffs’ deposition testimony indicating: (1) officers are expected and encouraged to report overtime (Def’s Sep. Stmt. re: MSJ on AD’s at UMF 9); (2) Plaintiffs’ overtime has been approved in nearly all, if not all, circumstances (Id. at UMF 11); and (3) some Plaintiffs admitted that they chose not to submit requests for overtime worked. (Id. at UMF 28). Such evidence would support a jury’s finding that Plaintiffs knew unreported time would not be compensated, and therefore waived their right to compensation by failing to report it. Moreover, taken together, the evidence supports an inference that Defendant reasonably relied on Plaintiffs’ representations (or failure to submit requests) regarding overtime worked. Thus, summary judgment as to waiver and estoppel is denied.

2. Partial Exemption Under Section 7(k)

As discussed, Defendant is eligible for this partial exemption as a matter of law. Therefore, Plaintiffs’ motion for summary judgment on this defense is denied.

3. Relief for preliminary or postliminary activities

As discussed, Plaintiffs’ donning and doffing activities are not compensable as a matter of law. As to other activities, Defendant presented ample evidence to support this defense. For example, it pointed to Plaintiffs’ deposition testimony indicating Plaintiffs frequently chose to arrive at work prior to their shifts, and frequently chose to engage in work-related activities away from the station. Moreover, several Plaintiffs admitted that they were not required or even encouraged to engage in such activities. (D’s Sep. Stmt. in Supp. of Opposition to P’s MSJ on AD’s, UMF’s 5, 6, 8, 12). Taken together, this evidence could support a jury’s finding that such activities constitute “preliminary” activities within the meaning of the statute. Accordingly, Plaintiffs’ motion for summary judgment on this defense is denied.

4. Restriction on Activities Compensable Under Contract or Custom

Plaintiffs raised their objection to this affirmative defense in the headings of their pleadings, but never argued the matter in their briefs. Since Plaintiffs have provided neither evidence nor legal grounds in support of their motion, it is denied.

5. Good Faith Defense and Waiver of Attorney-Client privilege

Plaintiffs admit Defendant is eligible for a discretionary reduction in liquidated damages if it can “show to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that [it] had reasonable grounds for believing that [its] act or omission was not a violation of the [FLSA.]” (P’s MSJ on AD’s at 12, quoting 29 U.S.C. § 260). Plaintiffs’ argument is limited to the conclusory statement that Defendant cannot prove good faith. (P’s MSJ on AD’s at 12). Defendant has, however, offered sufficient evidence of good faith to create a triable issue of fact. According to Defendant, its agents reviewed labor policies regularly and attended training seminars concerning FLSA compliance. (D’s Sep. Stmt. Re: P’s MSJ on AD’s, UMF 51, 53-56). Such evidence creates a material question of fact as to whether Defendant acted in good faith concerning its compliance with the FLSA. Therefore, Plaintiffs’ motion for summary judgment on this affirmative defense is denied.

Next, Plaintiffs argue that by asserting a good faith defense, Defendant has waived its attorney- client privilege because Defendant “in fact, [is] asserting the ‘advice of counsel’ defense . . .” (P’s MSJ on AD’s at 13). Defendant’s answer does not reveal reliance upon a defense of advice of counsel, nor may such be presumed. Accordingly, the Court declines to rule that Defendant has implicitly waived the attorney-client privilege in its Answer.

6. Statute of Limitations

Plaintiffs argue there is no dispute that all alleged activities took place within the relevant statute of limitations. Even if Plaintiffs are correct, there is a question of fact with regard to which statutory period applies. The FLSA establishes a two year statute of limitations unless the Plaintiffs prove the employer has committed a willful violation. In the case of wilfulness, the statute of limitations is three years. 29 U.S.C. § 255. Wilfulness requires a finding that an employer “knew or showed reckless disregard for the matter of whether its conduct was prohibited by statute.” Mclaughlin v. Richland Shoe, Co., 486 U.S. 128, 133, 108 S. Ct. 1677, 100 L. Ed. 2d 115 (1988).

Plaintiffs assert that Defendant’s actions were willful, but point only to their own declarations as evidence of Defendant’s wilfulness. Defendant has produced deposition testimony by management indicating that its managers were unaware of complaints regarding overtime practices, and that the Chief of Police, despite an open door policy, never received complaints of this nature. (D’s Sep. Stmt. re: Opposition to P’s MSJ on AD’s, UMF 46, 49). Consequently, issues of material fact remain and summary judgment on this ground is denied.

7. Reliance on an Interpretation of the FLSA by the Department of Labor

Plaintiffs argue Defendant cannot point to a specific interpretation of the Department of Labor upon which it relied. To the contrary, Defendant has named and argued the effect of a number of opinion letters and regulations from the Department of Labor discussed at length above. Summary judgment is therefore denied as to this issue.

8. Relief from Reporting Requirements for Insubstantial or Insignificant Periods of Time

Defendant may obtain relief from reporting requirements for insubstantial or insignificant periods of time. Plaintiffs’ argue the unpaid time was not de minimis, and therefore Defendant is not entitled to this affirmative defense. However, time spent donning and doffing safety gear is de minimis as a matter of law, as already discussed. Plaintiff’s motion is therefore denied as to such activity. As for other activities, Defendant points to the testimony of several Plaintiffs who request compensation for activities such as checking mail and cleaning weapons. (D’s Opposition to P’s MSJ on AD’s). The referenced testimony raises questions of fact as to whether time spent performing these and other activities is de minimis. Plaintiffs’ summary judgment motion is denied as to this issue.

9. Adequate Remedy at Law

Defendant’s ninth affirmative defense claims Plaintiffs are barred from seeking injunctive relief because they have an adequate remedy at law. Plaintiffs move for summary judgment against this defense on grounds that they have an automatic right to seek an injunction. (P’s MSJ on AD’s at 16). Yet, the plain language of 29 U.S.C. § 211 directs the Secretary of Labor to bring all injunctive actions under 29 U.S.C. § 217, save those involving child labor. Accordingly, only the Secretary of Labor may pursue injunctive relief, not employees. See McCune v. Oregon Senior Services Div., 643 F. Supp. 1444, 1454 (D. Or. 1986); Bowe v. Judson C. Burns, Inc., 137 F.2d 37, 39 (3d Cir. 1943). Plaintiffs’ motion for summary judgment on this affirmative defense is therefore denied.

10. Laches

Plaintiffs move for summary judgment on grounds that (1) “Laches is only available as a defense with respect to causes of action that do not have a limitations period,” and (2) there is no evidence to support a claim of laches. (P’s MSJ on AD’s at 16-17). Defendant does not dispute this argument in its opposition. Moreover, laches is an equitable remedy. Brownrigg v. DeFrees, 196 Cal. 534, 539, 238 P. 714 (1925). Since Plaintiffs may not bring a claim in equity as explained above, the motion for summary judgment on this defense is granted.

11. FLSA Does Not Apply to Local Government Agencies

Defendant’s eleventh affirmative defense asserts that applying the FLSA to Defendant is an “impermissible and unconstitutional interference” with the City of San Diego in contravention of the Tenth Amendment of the United States Constitution. (Answer at 9). The Supreme Court has held that applying the FLSA to state agencies is constitutional. Garcia v. San Antonio Metropolitan Transportation Authority, 469 U.S. 528, 554, 105 S. Ct. 1005, 83 L. Ed. 2d 1016 (1985). The holding of Garcia has been incorporated into the FLSA by amendment. Accordingly, Defendant’s eleventh affirmative defense fails as a matter of law. Plaintiffs’ motion for summary judgment is granted on this ground.

12. Unclean Hands

Plaintiffs claim that there is insufficient evidence to support the affirmative defense of unclean hands. Defendant has presented sufficient evidence to create a fact question as to whether Plaintiffs’ failure to report overtime is misconduct. The motion for summary judgment on this ground is denied.

13. Failure to Exhaust

This issue has been twice decided in prior orders. See Doc. 71 at 4 (noting the city conceded the exhaustion of remedies argument); Doc. 108 at 6 (holding that an action seeking unpaid wages and statutory penalties is not subject to exhaustion requirements.). Yet, Plaintiffs bring the issue before the Court again in the present motion, which is denied as moot.

14. Failure to Mitigate and Speculative Damages

Plaintiffs argue (1) the duty to mitigate does not apply to the FLSA, and (2) Defendant cannot plead facts demonstrating how Plaintiffs could have mitigated damages. (P’s MSJ on AD’s at 23-24). Regardless of whether Plaintiffs’ first argument is correct, mitigation of damages is an affirmative defense that applies to a breach of contract claim, so assertion of the defense does not fail on its face. Beyond a facial analysis, adjudication of Plaintiffs’ motion is inappropriate at this time. This phase of the summary judgment proceedings addresses only liability. The subject affirmative defenses are damages-related defenses. Summary judgment is denied.

15. Compromise

Defendant claims two prior settlement agreements bar this litigation. Res judicata bars all claims that could have been brought in the same complaint regarding the same breach. See Mycogen Corp. v. Monsanto Co., 28 Cal. 4th 888, 905, 123 Cal. Rptr. 2d 432, 51 P.3d 297 (2002). As the original complaints in the prior cases are not before the Court and there is no additional evidence presented, the issue of res judicata cannot be determined as a matter of law. The scope of the breach alleged in the prior complaints remains a question of material fact. Thus, the motion for summary judgment on these grounds is denied.

16. Third Party Beneficiary and Lack of Standing

Defendant’s answer to Interrogatory No. 14 concedes this issue. The motion for summary judgment is therefore granted.

17. Offset

The issue of offset has been addressed at length above. Summary judgment on this affirmative defense is denied.

18. Failure to State a Claim

Plaintiffs point out that this Court already has adjudicated Defendant’s motions to dismiss and settled the issue of which claims Plaintiffs have and have not stated. Nonetheless, Plaintiffs move the Court to take judicial notice of the prior rulings regarding Plaintiffs’ ability or inability to state various claims for purposes of granting this motion for summary judgment. Granting such a request would be redundant. The motion for summary judgment on this affirmative defense is therefore denied as moot.

IV. CONCLUSION

For the foregoing reasons, Defendant’s motion for summary judgment on the Fifth Amended Complaint is GRANTED in part and DENIED in part. Plaintiffs’ motion for summary judgment on the Fifth Amended Complaint is DENIED. Plaintiffs’ motion to strike is DENIED in its entirety. Plaintiffs’ motion for summary judgment on affirmative defenses is GRANTED with respect to the tenth, eleventh, and fifteenth affirmative defenses. With regard to all other affirmative defenses and all other issues not specifically addressed in this Order, summary judgment is DENIED.

IT IS SO ORDERED.

DATED: November 9, 2007

/s/ Dana M. Sabraw

United States District Judge

Notes:

1 Twenty days after oppositions to the subject motions were due and one day before Plaintiffs filed their reply, Plaintiffs filed a thirteen volume Second Compendium of Declarations. (Doc. 205-217). Defendant’s motion to strike this Compendium is granted, as the filing of the Compendium is both late and fails to comply with the Court’s order regarding the Phase I summary judgment briefing.

2 This Order is confined to the standard class “B” uniform. Other types of uniforms and safety equipment are not addressed. For example, Defendant concedes that the safety equipment adorned by SWAT team members must be donned and doffed at the workplace and that such activity is therefore compensable “work” under the FLSA.

3 Sergeant Polk testified: “Q: Are [officers] allowed to travel to work in their uniform? A: Yes as long as it’s covered.” Q: “Are they also allowed when they are off duty to wear all their protective gear weapons and all of that? A: Yes, as long as it’s covered.” (Polk Depo, D’s Ex. 79 at subpage 28:13 to Dec. of Aryn Thomas).

4 In Martin, 504 F.Supp.2d at 776, the court denied summary judgment on grounds that “a triable issue of fact exists about whether the ‘nature of [a peace officer’s] work’ actually requires them to don and doff their [safety] gear at the station.” The present case, however, is distinguishable from Martin. Given the general and speculative nature of evidence presented by Plaintiffs here, this Court concludes Plaintiffs have failed to raise a triable issue of fact.

5 While the Eleventh Circuit and the Department of Labor recently have concluded that safety gear is “clothing” within Section 203(o), Anderson v. Cagle ‘s Inc., 488 F.3d 945,955(11th Cir. 2007) (involving meat cutter’s safety gear), the Ninth Circuit has reached a contrary conclusion. Alvarez, 339 F.3d at 905 (meat cutter’s safety gear not “clothing” within Section 203(o)). Because Defendant is entitled to summary judgment on other grounds discussed in text above, this Court declines to address whether the safety gear in question is clothing within Section 203(o).

6 Plaintiffs concede that all reported overtime was compensated. (P’s Opp. to D’s MSJ at 36).

7 Plaintiffs’ evidence that Defendant’s payroll practice is inconsistent with a Section 7(k) schedule is insufficient to create a triable issue of fact. See Adair, 185 F.3d at 1062 (granting summary judgment and holding city had established a Section 7(k) work cycle even though its pay periods were not “structured to correspond with the 7(k) work period.”)

8 It is undisputed that most Plaintiffs work a seven-day work period consisting of four days work, followed by three days off -- the so-called 4/10 schedule. At oral argument, Plaintiffs’ counsel argued that a 4/10 schedule is not necessarily a seven-day, recurring schedule, but rather a five-day schedule pursuant to the language of the MOU. (Oral Arg. at 18). This argument, however, is belied by a commonsense application of the undisputed facts. If a five-day cycle were in place, a 4/10 schedule would mean Plaintiffs work four out of every five days. If that were the case, Plaintiffs would work between 50 and 60 hours per seven-day week. Nowhere do Plaintiffs allege such a schedule. Given Plaintiffs’ claims and the uncontroverted evidence before the Court, Plaintiffs on a 4/10 schedule work four out of every seven days.

9 Rule 50 of the Federal Rules of Civil Procedure allows a party to move for judgment as a matter of law at trial after evidence has been fully presented on an issue. The motion may be made both before and after submission of the case to the jury, and the court may grant the motion if a claim “cannot under the controlling law be maintained . . . .”