Cathleen Robertson, V. Valley Communications Center
80861-3
| Wash. Ct. App. | Jun 28, 2021Background
- Valley Communications Center (VCC) is a regional 911 center; plaintiffs are a class of call receivers and dispatchers who must be ready one second after the hour in an open “Com Room.”
- Employees are paid hourly per scheduled shift (with a biometric "hand-punch" and a gracing period) rather than for each minute; they allege nine preshift tasks were required but uncompensated.
- Plaintiffs identified nine preshift tasks; the trial court granted summary judgment that six of them were noncompensable (two as not "work," four on de minimis grounds) and left three tasks for trial.
- Plaintiffs retained Dr. Siskin to survey class members about time spent on the remaining three preshift tasks; the survey asked for time "per shift" rather than explicitly "preshift."
- VCC's expert found 18% of responses impossible (reported pre-shift task time exceeding time in the building pre-shift); the trial court excluded the survey and Siskin's opinions under ER 702 and ER 403 and thereafter granted summary judgment dismissing the case after plaintiffs conceded they could not prove classwide damages without the survey.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are six preshift tasks compensable work under the MWA or noncompensable (including by de minimis)? | The tasks are compensable preparatory work; Washington should follow FLSA/de minimis principles to recover time. | Tasks are not "work" (not for employer's benefit or control) or, alternatively, are de minimis and not recoverable. | Court: Did not adopt federal de minimis for MWA (declined to apply Lindow/de minimis). Summary judgment correctly granted on locating ergonomic equipment (not "work"); summary judgment on signing up for breaks was erroneous (genuine fact issue); de minimis-based dismissals were improper because WA has not adopted the federal de minimis rule. |
| Was the Siskin survey and his expert testimony admissible? | Survey was a standard technique; wording defects go to weight, not admissibility; jury should decide credibility. | Survey was fundamentally flawed (asked "per shift," not "preshift"), with a sizable portion of impossible responses, risking confusion and misleading the jury. | Court: Trial court did not abuse discretion in excluding the survey and Siskin under ER 702/403 because the question wording was materially misleading given the preshift/per-shift distinction. |
| Was dismissal appropriate where plaintiffs conceded they could not prove classwide damages without the survey (and was court’s refusal to award double damages erroneous)? | Excluding the survey was error, so plaintiffs retained a case; trial court should not have dismissed. | Plaintiffs conceded inability to prove damages absent the survey; dismissal was proper. | Court: Affirmed dismissal: plaintiffs conceded inability to prove damages on remaining claims without the survey; court need not reach double-damages issue. |
Key Cases Cited
- Stevens v. Brink's Home Sec., Inc., 162 Wn.2d 42 (summary judgment and evidence standard in Washington)
- Young v. Key Pharm., Inc., 112 Wn.2d 216 (summary judgment burden allocation)
- Volk v. DeMeerleer, 187 Wn.2d 241 (appellate review of summary judgment)
- Lindow v. United States, 738 F.2d 1057 (9th Cir.) (articulation of federal de minimis doctrine under FLSA)
- Davis v. Dep't of Transp., 138 Wn. App. 811 (refusal to apply federal de minimis to Washington law)
- Drinkwitz v. Alliant Techsystems, Inc., 140 Wn.2d 291 (MWA based on FLSA but Washington not bound by federal precedent)
- Philippides v. Bernard, 151 Wn.2d 376 (standard for reviewing trial court's evidentiary/expert rulings)
- Mayer v. Sto Indus., Inc., 156 Wn.2d 677 (abuse-of-discretion standard for evidentiary rulings)