ORDER GRANTING DEFENDANT SACHS'S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT
BETH LABSON FREEMAN, United States District Judge
Now before the Court are two motions: Defendant Sachs Electric Company's motion for summary judgment as to Plaintiff's class and individual claims; and Plaintiff's motion for partial summary judgment as to liability against Sachs for failure to compensate the travel time in question. The principal question is whether, under California law, Plaintiff's travel time between the security gate and the work zone constitutes "hours worked" mandating compensation. The Court finds that Plaintiff's travel time between the security gate and his parking lot nearby the work zone does not constitute such "hours worked," and that there is no genuine dispute of material fact that Plaintiff was compensated for travel between his parking lot and the work zone. Nor is Plaintiff's travel time between the security gate and parking lot compensable under Plaintiff's theory of liability pursuant to California Industrial Welfare Commission ("IWC") Order 16-2001 ¶ 5(A). Thus, Sachs is entitled to summary judgment as to Plaintiff's class claims. In addition, the Court separately finds that Sachs is entitled to summary judgment as to Plaintiff's individual claims.
Accordingly, for the reasons discussed below, Defendant Sachs's motion for summary judgment is GRANTED and Plaintiff's motion for partial summary judgment is DENIED.
I. STATEMENT OF FACTS
A. California Solar Flats Project and the Parties to this Action
The California Flats Solar Project ("the Project") involves the construction, operation, and maintenance of a 280-megawatt solar power generating facility in the County of Monterey, California. See Ex. A to Rega Decl., ECF 40-5. The Project is located on approximately 2,367 acres of undeveloped grassland owned by Jack Ranch, a private property. See id. ; Rega Decl.
The defendants
Plaintiff Justin Griffin worked for Sachs as a solar panel installer on the Project from approximately November 20, 2016 to March 3, 2017. See Griffin Decl. ¶ 3, ECF 50-2. Griffin obtained employment with Sachs through International Brotherhood of Electrical Workers ("IBEW") Local Union 234 and remained an IBEW member throughout his time working on the Project. Id. ¶ 4; Rega Decl. ¶ 11. Griffin's employment with Sachs was terminated on March 3, 2017. Griffin Decl. ¶ 3; Rega Decl. ¶ 18; Notice of Termination, Ex. I to Rega Decl., ECF 40-5.
B. Travel Time and Travel Rules
A fence encloses the entire Project site. See Griffin Decl. ¶ 5, ECF 50-2. Every work day, Plaintiff entered the grounds of the Project through the same security gate entrance ("the Security Gate") to Jack Ranch. See Griffin Decl. ¶ 6; Griffin Depo. at 34:11-24, Ex. 1 to Sachs's Motion, ECF 40-1. The Security Gate is located near the intersection of Highway 41 and Turkey Flats Road in the County of Monterey, California. Griffin Decl. ¶ 5. A guard shack is located at the Security Gate. Griffin Depo. at 34:11-24.
The solar panel zone-where workers installed solar panels-is located many miles within the property. See Rega Decl. ¶ 3, ECF 40-5. A solar site access road ("the Access Road") connects the Security Gate with parking lots where workers were assigned to park. See id. ¶ 3; Griffin Decl. ¶ 6. The Access Road is approximately 12 miles long and a one-way trip takes approximately 45 to 55 minutes, depending on which parking lot was the assigned destination. See Rega Decl. ¶ 3; Griffin Decl. ¶ 8; K. Manhart Decl. ¶ 9, ECF 50-3. From the parking lots, workers are transported by buggy to specific work zones to install and work on solar panels. See Rega Decl. ¶ 3; Griffin Depo. at 31:6-10. The buggy ride takes approximately 5 to 15 minutes. See Jimenez Decl. ¶ 67, ECF 50-4; Bundren Decl. ¶ 66, ECF 50-6. Sachs's Vice President, Mr. Michael Rega, testified on behalf of Sachs that "[e]mployees are paid beginning at the point when they board the buggy." Rega Decl. ¶¶ 1, 4. Plaintiff presents testimony that some workers heard Sachs management say the work day "is supposed to begin" after the buggy ride. See Plaintiff's Opp'n at 2 n.1, ECF 54 (citing Jimenez Decl. ¶ 67; Bundren Decl. ¶ 66). This does not contradict
At new hire orientation, Plaintiff was informed that the only way for workers to enter and exit the Project site was via the Security Gate and Access Road. See Griffin Decl. ¶¶ 7, 9. It was not feasible to walk or bicycle from the Security Gate to the parking lots, see id. ¶ 9, but workers could drive by car, carpool, or take a bus offered by McCarthy that picked up workers at locations throughout a multi-county area, see Rega Decl. ¶ 3; Griffin Depo. at 52:12-53:7; Wilkinson Depo. at 39:15-20, ECF 101-1. Workers could also be dropped off at the Security Gate and Sachs would arrange transportation to the parking lots. See Rega Decl. ¶ 3. On some days, Plaintiff drove his own car from the Security Gate to his assigned parking lot. Griffin Depo. at 23:12-22. On other days, Plaintiff was a carpool passenger with other workers. Id. at 40:13-22.
Workers traveling by car were required to present their badges at the guard shack in order to enter through the Security Gate. See Griffin Depo. at 34:11-24. Whether driving or riding, workers were not required to exit the car, but simply held up their badges for scanning by the person(s) staffing the guard shack. See id. at 37:1-16; 40:13-22; 42:23-43:14. Plaintiff did not utilize the optional McCarthy bus. Id. at 52:12-16. Workers who did take the bus were not required to show their badges at the guard shack, but instead were scanned in and out at the beginning and end of the bus ride. See Wilkinson Decl. ¶ 16, ECF 98-2; Wilkinson Depo. at 39:8-40:7, ECF 101-1.
Travel on the Access Road was governed by a number of rules.
According to Plaintiff, Defendants (as well as biologists) monitored workers driving on the Access Road. See Griffin Decl. ¶ 30; Jimenez Decl. ¶ 31. Plaintiff states that while driving on the Access Road he was not permitted to pass other vehicles (except when a car had broken down or pulled over), was not permitted to drive "in a way that created a lot of dust," and that if a pace car was present he was required to follow it. See Griffin Decl. ¶¶ 39, 40, 45,
Defendants informed Plaintiff that workers had been suspended or terminated for improper actions on the Access Road, such as exceeding the speed limit. See Griffin Decl. ¶ 35. Speed limits ranged from 5 to 20 miles per hour. See id. ¶ 41; Jimenez Decl. ¶ 43. Cattle grazed along the Access Road and workers were not allowed to disrupt the cattle or local wildlife while driving on the Access Road. See Griffin Decl. ¶¶ 46, 47. Workers were required to immediately report any accidents that occurred on the Access Road. Id. ¶ 36.
Numerous additional rules that applied generally to the Project site applied beyond the Security Gate. At new hire orientation and at worker meetings, Defendants informed Plaintiff and other workers that they were subject to all rules of the Project site once they entered the Security Gate. Griffin Decl. ¶ 32; Jimenez Decl. ¶ 28. These rules included "safety and personal protective equipment rules, discrimination rules, anti-harassment rules, environmental rules, alcohol and drug policies, rules related to being subject to searches for alcohol [and] drugs, no practical jokes, no horseplay rules, no gambling rules, no photography, [and] no loud music." See Griffin Decl. ¶ 32. Due to drought conditions and the risk of fires, smoking was permitted only in designated areas (which did not include the Access Road or the interior of vehicles on the Access Road). See Rega Decl. ¶ 9; Griffin Depo. at 63:9-13. No firearms were permitted on the Project site. See Jimenez Decl. ¶ 39.
Defendants informed workers that Defendants could terminate workers for violating any of the Project site rules. See Griffin Decl. ¶ 25. Workers were also required to carry their employee badge from the time they entered the Security Gate to the time they exited. Griffin Decl. ¶ 20. Workers were not permitted to enter the Project site before sunrise and were required to be off the Project site by sunset. See Griffin Decl. ¶¶ 16, 17. At the beginning and end of the day, workers driving or riding in cars would sometimes have to wait in line for approximately 10 to 20 minutes to get through the Security Gate due to congestion. See id. ¶ 24.
Plaintiff obtained employment with Sachs through IBEW Local Union 234 and was an IBEW member throughout his time working on the Project. See Griffin Decl. ¶ 4; Rega Decl. ¶ 11. Griffin's employment with Sachs falls under a collective bargaining agreement ("CBA") between The Monterey Bay California Chapter of the National Electrical Contractors Association and IBEW Local Union 234. See Rega Decl. ¶ 12; see also CBA, Ex. D to Rega Decl., ECF 40-5. The IBEW did not file a grievance on behalf of Griffin or any other union member for unpaid wages in connection with travel time between the Security Gate and the parking lots on the Project site. Rega Decl. ¶ 13.
D. Procedural History
Plaintiff filed suit against Sachs in state court on June 22, 2017, alleging six class action claims, including failure to pay compensation due, and three individual claims. See Sachs Complaint, Ex. J to ECF 1.
On July 16, 2018, the Court consolidated the two actions and permitted Plaintiff to file a single consolidated complaint, see ECF 46, which Plaintiff did so file on July 23, 2018, see Consol. Compl., ECF 51. On August 6, 2018, Defendants separately filed motions to strike the portions of Plaintiff's Consolidated Complaint that allege labor violations related to Plaintiff's rest and meal breaks. See Sachs Motion to Strike, ECF 59; McCarthy Motion to Strike, ECF 61. The Court granted both motions in full on January 24, 2019. See Order Granting Motions to Strike Portions of the Consolidated Complaint, ECF 86. The upshot is that Plaintiff's allegations concerning "meal and rest periods" are not part of the instant action. See id. at 2. On February 7, 2019, Defendants separately answered Plaintiff's Consolidated Complaint. See ECF 94; ECF 95.
Sachs filed its Motion for Summary Judgment ("Sachs's Motion") on May 29, 2018. See Sachs's Motion, ECF 40. Plaintiff filed its Motion for Partial Judgment against Sachs ("Plaintiff's Motion") on July 26, 2018. See Plaintiff's Motion, ECF 57. On September 14, 2018, the parties jointly requested to continue the hearing dates on the parties' respective motions for summary judgment in light of private mediation set in January 2019. See ECF 76. In response, the Court terminated both motions without prejudice, subject to renotice for a new hearing date. See ECF 77. The January 2019 mediation did not result in resolution of this action. On January 24, 2019, Plaintiff renoticed its motion for partial summary judgment. See Plaintiff's Renotice of Motion, ECF 85. On January 31, 2019, Sachs renoticed its motion for summary judgment. See Sachs's Renotice of Motion, ECF 89. As permitted by the Court, the parties did not refile the briefing or exhibits in renoticing the respective motions. Thus, the Court's citations herein refer to the briefing and exhibits filed prior to renoticing.
On March 7, 2019, the Court heard oral argument on the instant motions ("the Hearing"). At the Hearing, the Court granted Plaintiff permission to submit limited references to the existing record with respect to two specific issues discussed at the Hearing. Plaintiff submitted these references on March 7, 2019, shortly after the Hearing. ECF 105. On March 11, 2019, Sachs filed a "Response" to Plaintiff's references. ECF 107. Shortly thereafter, Plaintiff filed objections to Sachs's "Response." ECF 109.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 56 governs motions for summary judgment. Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett ,
III. PLAINTIFF'S EVIDENTIARY OBJECTIONS
First, Plaintiff objects to portions of the following four declarations submitted in support of Sachs's motion for summary judgment: Hagan Declaration (ECF 40-3); Kinloch Declaration (ECF 40-4); Rega Declaration (ECF 40-5); and Torres Declaration (ECF 40-2). See Plaintiff's Opp'n at 25, ECF 54. In total, Plaintiff objects to 29 separate portions of this testimony. See
Second, Plaintiff objects to the Jensen Declaration (ECF 72-2) submitted by Sachs in support of its reply brief. See Plaintiff's Objections to Declaration in Reply Brief, ECF 74. The Court finds the Jensen Declaration (ECF 72-2) irrelevant to the instant motions and the Court does not rely on or consider the testimony therein. Accordingly, Plaintiff's objections at ECF 74 are TERMINATED AS MOOT.
Third, Plaintiff objects to Sachs's "Response" (ECF 107) to Plaintiff's references to the record (ECF 105) submitted shortly after the Hearing. See Plaintiff's Objections to Sachs's Response, ECF 109. Plaintiff argues that Sachs's Response asserts new arguments and refers to additional facts outside the record, and that the Court did not give Sachs permission to submit such briefing in response to Plaintiff's references to the record. See id. at 2. The Court agrees. Accordingly, Sachs's Response at ECF 107 is hereby STRICKEN.
IV. DISCUSSION
Plaintiff moves for summary judgment of a single issue: whether Sachs is liable under Plaintiff's first cause of action, i.e. whether Sachs is liable for failure to pay for all "hours worked." See Plaintiff's Memorandum at 1, ECF 57-1; Plaintiff's Renotice of Motion, ECF 85. Defendants' alleged failure to pay for meal and rest
Plaintiff's "hours worked" claim divides into two parts. First, the time spent between the Security Gate and employee parking lot and, second, the time spent on the buggy ride between the parking lot and worksite. Plaintiff's "buggy ride" time-Plaintiff's travel time between the parking lot and the solar panel work zone-is not in reasonable dispute. Sachs states that "Plaintiff was paid beginning at the point where he boarded the buggy." Sachs's Motion at 6, ECF 40. Indeed, Plaintiff acknowledged that "8:00 [a.m.] is my starting time.... [when we would] jump in the buggies." See Griffin Depo. at 30:1-20. Moreover, Sachs presents sworn testimony from its Vice President that "[e]mployees are paid beginning at the point when they board the buggy." Rega Decl. ¶¶ 1, 4. Plaintiff presents no evidence to the contrary, but instead testimony that some workers heard Sachs management say the work day "is supposed to begin" after the buggy ride. See Plaintiff's Opp'n at 2 n.1, ECF 54 (citing Jimenez Decl. ¶ 67; Bundren Decl. ¶ 66); see also Plaintiff's References to the Record at 2, ECF 105. Ms. Maria Jimenez (a former Sachs employee) testified that she heard Sachs management say "that the start time for the 8 hour work day began either when the buggies got to [the] morning meeting site or to the work site." Jimenez Decl. ¶ 67. Ms. Jimenez claims that "[a]s a result, [unnamed] workers were not paid for the buggy ride." See id. This is mere speculation that the Court does not credit as evidence. None of Plaintiff's witnesses has submitted evidence showing that they did not receive pay for the buggy ride. Plaintiff fails to name even a single worker who was allegedly not paid for the buggy ride, and Plaintiff submits no paystubs or other evidence in support. In sum, the Court finds no genuine dispute of material fact as to whether workers were paid for travel time on the buggies from the parking lots to the solar panel work zones. Therefore, the only travel time in question is Plaintiff's travel time on the Access Road from the Security Gate to Plaintiff's assigned parking lot. See Consol. Compl. ¶¶ 24-43, ECF 51.
Sachs moves
Accordingly, the parties' motions are cross-motions with respect to whether the Sachs is liable for failure to compensate Plaintiff for his travel time on the Access Road. The Court first jointly addresses the travel time issue, followed by Sachs's request for summary judgment as to the remaining class claims, and lastly Sachs's request for summary judgment as to Plaintiff's individual claims. As discussed below, Sachs's motion for summary judgment is GRANTED and Plaintiff's motion for partial summary judgment is DENIED.
A. Travel Time on the Access Road
Sachs contends that "Plaintiff controlled how he got to work" and that Plaintiff's
1. "Hours Worked" Principles under California Law
The Industrial Welfare Commission ("IWC") is "the state agency empowered to formulate regulations (known as wage orders) governing employment in the State of California." Tidewater Marine Western, Inc. v. Bradshaw ,
All 16 wage orders contain the same definition of "hours worked" as does Wage Order 16 (except for Wage Orders 4 and 5 which include additional industry-specific language). Thus consistent with its fellow wage orders, Wage Order 16 provides:
"Hours worked" means the time during which an employee is subject to the control of an employer , and includes all the time the employee is suffered or permitted to work, whether or not required to do so.
Wage Order 16 ¶ (2)(J) (emphasis added). Multiple courts have analyzed whether certain job-related activities constitute "hours worked" under the IWC's wage orders. The following discussion is representative.
An employee who is subject to an employer's control is not required to be working during that time to be compensated under the IWC's wage orders. See Bono Enterprises, Inc. v. Bradshaw ,
The type of time in question in the instant action is not the "lunch time" in Bono or the "sleep time" in Aguilar but instead travel time. "California law governs an employee's wage entitlement for transportation and provides a rule for distinguishing 'compulsory travel time' from 'an ordinary commute.' " McMaster v. Coca-Cola Bottling Co. ,
In Morillion , defendant Royal Packing Co. required its agricultural employees (the plaintiffs) to meet for work each day at specified parking lots or assembly areas-i.e. "departure points." See
Crucial to this inquiry is what travel options are available to the employees. The Morillion court explained that "[if] commuting on their own, employees may choose and may be able to run errands before work and to leave from work early for personal appointments. See id. at 587,
Morillion has since been applied in at least two "travel time" cases relied on by Plaintiff and Sachs: Overton v. Walt Disney Co. ,
In Overton , plaintiff (a Disneyland employee) was assigned parking in a lot one mile from the employee entrance to Disneyland.
In Burnside , plaintiffs were industrial workers who alleged defendant Kiewit Pacific Corp. "never compensated [them] for time they spent traveling from designated meeting sites to their jobsites and from those jobsites back to the [ ] meeting sites."
Although not explicitly faced with the question of whether Burnside's travel time constituted "hours worked" under Wage Order 16, the Ninth Circuit noted that "[t]he facts of Morillion are entirely reminiscent of the facts alleged in the [Burnside] complaint." See Burnside ,
2. Plaintiff's Travel Time on the Access Road was not "Hours Worked" under California Law
As an initial matter, the Court notes that Sachs discusses federal law, the Fair Labor Standards Act ("FLSA"), and the Portal-to-Portal Act of 1947 at length in its opening brief. See, e.g. , Sachs's Motion at 10-14, ECF 40. Plaintiff responds that "federal law has no application to Plaintiff's state law claims." See Plaintiff's Opp'n at 23, ECF 54. The Court agrees that federal law is not applicable here. As articulated by the California Supreme Court in Morillion , "the relevant portions of the FLSA and Portal-to-Portal Act differ substantially from [the IWC's] [w]age [o]rder[s] [ ] and related state authority."
Turning to California law, Sachs argues that Plaintiff's travel time on the Access Road "is not compensable because it is a continuation of an ordinary commute that started at Plaintiff's home and ends at the parking lot where Plaintiff began getting paid." See Sachs's Motion at 9 (citing Morillion ,
From a factual standpoint, none of the three travel time cases raised by the parties is directly on point. Morillion and Burnside both concerned employer-mandated travel on employer-provided transportation from a parking lot or meeting point to the respective work zones. In Morillion , the agricultural workers were required to ride the employer's buses from the departure points (parking lots or assembly areas) to the fields and back again.
Here, by contrast, Plaintiff and his fellow workers were not required to use employer-provided transportation to travel on the Access Road from the Security Gate to the parking lots. Far from it. Workers could choose means of travel on the Access Road from a variety of options-to drive alone in their own vehicle, carpool with other workers, take a bus offered by McCarthy from locations throughout a multi-county area, or take transportation offered by Sachs if a worker was dropped off at the Security Gate. See Rega Decl. ¶ 3, ECF 40-5; Griffin Depo. at 23:12-22, 40:13-22, ECF 50-2; Wilkinson Depo. at 39:15-20, ECF 101-1. Thus, Morillion 's holding that employees are "subject to the control of an employer" where "an employer requires its employees to meet at designated places to take its buses to work and prohibits them from taking their own transportation" is not controlling with respect to Plaintiff's travel time on the Access Road. See Morillion ,
On the other hand, the controlling facts in Overton do not sufficiently map on to the facts here to allow direct application of the Overton holding in this case. In Overton , employees traveling from the parking lot to the worksite were not required to ride the employer-provided shuttle between the two locations.
Likewise, Burnside is not a particularly good fit either. In discussing whether the Burnside employees' claims under state law were preempted by federal law, the Ninth Circuit stated that "Wage Order 16-2001 requires payment for travel time only when the employer mandates use of its transportation." Burnside ,
With these cases in mind, the Court considers the arguments raised by the parties. The parties' briefing generally concerns two types of rules: (1) rules specific to the Access Road; and (2) general workplace rules that applied to Plaintiff's travel on the Access Road. See, e.g. , Sachs's Motion at 15-18, 19-20; Plaintiff's Opp'n at 4-8, 9-14. Thus, the Court's discussion proceeds as follows: (1) Plaintiff's mode of transportation and whether Sachs's rules of the Access Road equate to control within the meaning of "hours worked"; (2) whether Sachs's general workplace rules as applied to travel on the Access Road equate to control; and (3) whether the combined rules-i.e., a totality of the circumstances-equate to control. Each of the three issues is discussed in turn. For the reasons stated below, whether taken one by one or viewed as a whole, the Court finds that Sachs's rules of the Access Road and workplace rules that applied to Plaintiff's travel on the Access Road did not subject Plaintiff "to the control of [the] employer" within the meaning of "hours worked" under Wage Order 16.
a. Plaintiff's Mode of Transportation and Sachs's Rules of the Access Road
Sachs contends that Plaintiff was "not require[d] [ ] to take any particular mode of transportation to get to [the parking lot]" and that under California law employees are not entitled to compensation where they "have a choice about [how to] commute to work." See Sachs's Motion at 8-9;
Indeed, the California Supreme Court admonished that Morillion "should not be construed as holding that all travel time to and from work" is compensable.
Thus, the question at hand turns on the level of control Sachs exercised over Plaintiff on the Access Road. See Morillion ,
Plaintiff argues that nonetheless, "Sachs workers had no ability to run errands once they passed through the Security Gate" and that after passing through the Security Gate "they were not free to use the time effectively for their own purposes." See Plaintiff's Opp'n at 18. Sachs responds that Plaintiff's argument is not salient because no employee in any work context driving her own vehicle could run errands while "traveling on the employer's premises before work." See Sachs's Reply at 9. In other words, Sachs argues that "[t]he fact that Plaintiff could no longer run an errand while on the Project [site] does not speak to the level of control." See
Indeed, in its discussion finding that federal authority should be given no deference, the Morillion court still distinguished a federal opinion that had found travel time not compensable.
Moreover, as pointed out by Sachs, see Sachs's Reply at 6, ECF 72, the California Supreme Court recently rejected the de minimis doctrine found in the Fair Labor Standards Act ("FLSA"), see Troester v. Starbucks Corp. ,
While driving his vehicle or carpooling with other workers Plaintiff was subject to the rules of the Access Road. Sachs contends that these rules-e.g., "[f]ollowing a posted speed limit, not interfering with animals [ ], not bringing visitors, and not smoking"-did "not divert Plaintiff in any way from reaching the parking lot." See Sachs's Motion at 19. Sachs further contends that "each rule is analogous to ordinary rules on virtually every employer's premises that employees must respect at all times, even when not getting paid."
Sachs further argues that "a rule that employees must drive safely and not exceed a certain speed while driving on the employer's property at all times, even when not getting paid, is [ ] commonsense." Sachs's Motion at 20 (emphasis removed). Indeed, low speed limits or restricted access zones are not atypical on an employer's premises. A daycare or school with children present may require extremely low vehicle speeds, limit vehicle traffic to a specific roadway, and/or restrict cell phone use. Similar restrictions apply to numerous premises where workers drive for some distance on to an employer's property to park. The Court is unpersuaded that such safety precautions convert travel time into "hours worked"
In fact, Plaintiff goes so far as to argue that Sachs "controlled" its workers under Wage Order 16 based in part on Sachs's rule that workers "could not stop and get out of their vehicles to relieve themselves at any location along the [ ] Access Road other than at [the provided] portable toilet sites." See Plaintiff's Opp'n at 13 (citing Griffin Decl. ¶ 59). This is absurd and nowhere near the requisite level of control. Such behavior could be considered lewd, indecent, or possibly disorderly conduct. To suggest that Sachs is required to compensate its workers for travel time on the Access Road based in part on Sachs's extremely proper and reasonable rule that workers could not urinate freely wherever they wished is simply preposterous.
b. Sachs's General Workplace Rules as applied to Travel on the Access Road
The Court next turns to Sachs's general workplace rules. Sachs contends that all travel on an employer's premises before/after work "entails some level of control," and that an employee is not entitled to compensation simply because she "must obey many rules while on the premises." See Sachs's Motion at 15. Sachs argues that employers may generally enforce such rules as "no smoking, no littering, no loitering, no talking to customers, no carrying weapons, no eating or drinking, no sleeping, no pets, and no disruptive noises" over employees traveling on the property before/after work without giving rise to compensable travel time. See id. at 15, 16. Plaintiff counters that Sachs's rules were "strict," and that Sachs's rules constituted "substantial control" in a variety of ways. See Plaintiff's Memorandum at 1-2, ECF 57-1; Plaintiff's Opp'n at 6-9 (reciting Sachs's workplace rules). As discussed below, the Court finds that Sachs's general workplace rules that applied to Plaintiff's travel on the Access Road did not subject Plaintiff "to the control" by Sachs within the meaning of "hours worked" under Wage Order 16.
First, Plaintiff argues that "workers were [ ] under Sachs's control" at the beginning and end of the workday because they were required to badge-in and badge-out at the Security Gate. See Plaintiff's Opp'n at 17-18. In support, Plaintiff cites Cervantez v. Celestica Corp. ,
Plaintiff further argues the security setup required him at times "to sit in [his] vehicle[ ] in a line outside the Security Gate [ ] for approximately 10 to 20 minutes or more waiting for the sun to come up and for the Security Gate [ ] to be opened" and that "[t]he same kind of line and wait would almost always happen ... at the end of the day." See Plaintiff's Opp'n at 4 (citing Griffin Decl. ¶ 24). Sachs counters that such time in line is the result of "[an] interaction [ ] strictly for the purposes of ingress and egress, and does not involve any interaction with the employer that is anywhere near the interaction during a bag check or other inspection." See Sachs's Reply at 12. The Court finds that Plaintiff's wait time of approximately 10 to 20 minutes to get through the Security Gate due to congestion at the beginning and end of the day does not amount to control. It is undisputed that Plaintiff and his fellow workers underwent no special screening or security check upon entry or exit. Thus, Plaintiff's "wait time" is equivalent to a normal bottleneck entering/exiting parking lots on an employer's premises around the time shifts begin/end and not an employer-controlled body screening. Cf. Pelz v. Abercrombie and Fitch Stores, Inc. ,
Second, Plaintiff argues that he was subject to additional general workplace rules while traveling on the Access Road that equate to control, including the following: "safety and personal protective equipment rules, discrimination rules, anti-harassment rules, environmental rules, alcohol and drug policies, rules related to being subject to searches for alcohol [and] drugs, no practical jokes, no horseplay rules, no gambling rules, no photography, [and] no loud music." See Griffin Decl. ¶ 32. Plaintiff also notes that no firearms were permitted on the Project site. See Plaintiff's Opp'n at 8; Jimenez Decl. ¶ 39, ECF 50-4. On the other hand, Sachs contends these rules are "common sense" restrictions akin to rules governing traveling to and from work in other highly regulated environments such as airports, zoos, and hospitals. See Sachs's Motion at 17. For example, Sachs argues that an airport gate agent is subject to "the complex and far-reaching rules of [the] airport" long before clocking
The Court agrees with Sachs that these general workplace rules are all prohibitory in nature and not fundamentally different from typical restrictions that apply on an employer's premises during travel from the parking lot to the workplace, with the possible exception of "safety and personal protective equipment rules" (which are addressed in the subsequent paragraph). In other words, these are standard prohibitions common to many work campuses or premises that reasonably foreclose activities that may be illegal or unsafe in that setting. It is illogical that an employee would be subject to the control of her employer within the meaning of the IWC wage orders because she cannot gamble or possess firearms while commuting between the entrance to the campus and the parking lot. Put differently, these general workplace rules do not equate to control within the meaning of "hours worked" because they simply reflect standard workplace requirements not directed to "determining when, where, and how plaintiffs must travel," see Morillion ,
With respect to "safety and personal protective equipment rules," Sachs acknowledges that "[a] rule ... requiring employees to don protective gear before entering the plant at the start of a shift can certainly start the work day." See Sachs's Motion at 18. However, in opposing Plaintiff's motion for partial summary judgment, Sachs states that "workers did not have to wear PPE [personal protective equipment] in their cars." See Sachs's Opp'n at 21, ECF 63. Based on the evidence submitted by Plaintiff, the Court agrees. Plaintiff states that personal protective equipment "PPE" rules applied on the Project site, see Plaintiff's Memorandum at 6 (citing Griffin Decl. ¶ 32), but admits that the instruction around the Security Gate entrance was only a warning-"[b]e prepared to wear PPE [ ] beyond this point," see Plaintiff's Memorandum at 9 n.4 (citing and quoting Jimenez Decl. ¶ 39, among other declarations). The Court has reviewed the cited testimony and finds no evidence that workers were required to wear PPE during normal travel between the Security Gate and the parking lots. If anything, Plaintiff tacitly admits that no such requirement existed. In sum, the Court finds that no reasonable jury could infer that workers were required to wear PPE within cars or buses during daily roundtrip travel on the Access Road. Accordingly, the "safety and personal protective equipment rules" do not demonstrate control over Plaintiff's travel or initiate the workday at the Security Gate, and no genuine dispute of material fact exists as to any PPE requirement, see Corales v. Bennett ,
Third, Plaintiff argues that Plaintiff and his fellow workers "were not allowed to leave the premises [the Project site] from 7:00 a.m. to 5:30 p.m. without permission." See Plaintiff's Reply at 1, ECF 64. In a nutshell, as discussed at the Hearing, this boils down to whether an employee needed permission to leave the Access Road separate and apart from the permission required to leave work once the shift ended (i.e. after the buggy ride).
In support of his theory that workers needed separate permission to leave the Access Road, Plaintiff cites Sachs's "Standard Job Work Rules," which state "[t]he standard work day begins at 7:00 [a.m.] and ends at 5:30 [p.m.]." See Standard Job
The Court agrees with Sachs that a given individual's standard work day was defined by the CBA, and thus not the 10.5 hours that Plaintiff claims. Plaintiff's testimony makes clear that his work day did not run from 7:00 a.m., but rather 8:00 a.m. See Griffin Depo. at 30:1-20 ("8:00 [a.m.] is my starting time.... [when we would] jump in the buggies and head off to work."). This is consistent with the CBA, which provides "[e]ight [ ] hours shall constitute a days work from 8:00 a.m. to 12:00 noon, and from 12:30 p.m. to 4:30 p.m. on Monday through Friday." See CBA § 3.01(a), Ex. D to Rega Decl., ECF 40-5. Although the Standard Job Work Rules generally define the "standard work day" as 7:00 a.m. to 5:30 p.m., they further specify that individual employees need only be "ready to work at their designated starting time, and shall remain at work until their regular quitting time." See Standard Job Work Rules § 6. These standard work times are set forth by the CBA. Accordingly, a given individual's work day did not encompass all 10.5 hours of the "standard work day" recited by the Standard Job Work Rules.
Plaintiff argues that nonetheless he was under Sachs's control on the Access Road because "[w]orkers were told that they were required to stay on the job site during the entire workday from the beginning of the workday to the end of the workday." See Plaintiff's Opp'n at 15 (citing Griffin Decl. ¶ 64). Although somewhat unclear, Plaintiff's theory appears to be that Sachs's use of "job site" in this context meant "Project site" and that therefore Plaintiff could not leave the Access Road without permission under the Standard Job Work Rules, see Plaintiff's Reply at 1-2; Plaintiff's Opp'n at 14-15 (citing the Standard Job Work Rules). In any event, this theory is directly contradicted by the Standard Job Work Rules themselves, which define "Jobsite Access" in relation to commuting from a parking lot. See Standard Job Work Rules § 1. Thus, the "jobsite" under the Standard Job Work Rules is necessarily set off from the parking lot. This is consistent with the definition of "Work Area," which describes work-related activities in the "assigned work areas [or] workplace or jobsite" under the direction of a supervisor. See Standard Job Work Rules § 5. Plaintiff submits no evidence that supervisors were present or controlled or directed workers' travel on the Access Road. Accordingly, the rule that employees "may be subject to disciplinary action" for "leav[ing] their assigned work areas [or] the workplace or jobsite without a supervisor's authorization" found in the Standard Job Work Rules, see
Next, Plaintiff argues that he was under Sachs's control while traveling on the Access Road because "[w]e were told [by Defendants] that it would a violation of the job site rules if we reach the Security Gate
Plaintiff submits declarations in support of his argument that workers could be terminated or disciplined for traveling on the Access Road "too early" after their shifts ended, see Plaintiff's Opp'n at 4; see also Plaintiff's References to the Record at 2-6 (citing and quoting Richmond Decl. ¶¶ 33, 34, 44; E. Manhart Decl. ¶¶ 17, 25, 34, 66; K. Manhart Decl. ¶¶ 19, 28, 69; Griffin Decl. ¶¶ 17, 26, 64; Jimenez Decl. ¶¶ 19, 27, 70; and Bundren Decl. ¶¶ 19, 28, 71), ECF 105. However, the Court finds that these declarations are mere speculation on this topic, as Sachs argued at the Hearing. See, e.g. , Hearing Tr. at 33:11-18; see also Sachs's Reply at 10-11. As a representative example, the testimony is essentially that "Sachs and McCarthy would let guys leave the [parking] lot but then would terminate them for getting to the Security Gate [ ] too early." See Richmond Decl. ¶ 44, ECF 50-7. Yet, none of the six declarants alleges facing discipline or termination for arriving at the Security Gate "too early," and none of the six declarants names even a single worker who was subject to discipline or termination on these grounds. The only declarant who makes even a remotely definitive statement is Mr. Richmond (a former Sachs wireman and foreman)-and Mr. Richmond relies on what an unnamed person told him had happened to unnamed workers. See Richmond Decl. ¶ 44. Although the Court reviews the evidence in the light most favorable to the non-moving party, "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson v. Liberty Lobby, Inc. ,
In sum, the Court finds that Sachs's general workplace rules that applied to Plaintiff's travel time on the Access Road do not equate to control within the meaning of "hours worked" under Wage Order 16.
c. Totality of the Circumstances
Finally, the Court considers the rules of the Access Road and the general workplace rules taken as a whole. In this action, Plaintiff was required to travel on a single accessway to his parking lot and abide by various rules of the road once on the premises, including reduced speed limits, limited or no cell phone use, and no loud music. See supra Section I.B. Plaintiff entered and exited the premises via a single Security Gate at which he was not required to leave his vehicle but was required to present his badge for scanning by security staff. See id. During travel, Plaintiff was also subject to general rules of the workplace, including anti-harassment rules, no photography, alcohol and drug policies, no firearms, and no smoking. See id. In addition, Plaintiff was not permitted to disturb local wildlife or cattle and was required to be off the premises between sunset and sunrise. Id.
Plaintiff argues that therefore he was "under the control of [Defendants] because of all of the job site rules to which [he] w[as] subjected" from the time "that Plaintiff entered the Security Gate [ ] in the morning until he exited the Security Gate [ ] at the end of the day." See Plaintiff's Memorandum at 6. Meanwhile, Sachs contends that "[t]he rules cited by Plaintiff do not 'control' him and entitle him to compensation [for his travel time on the Access Road]" because the rules amount only to "rules and a code of conduct" typical "[w]henever employees are on their employer's premises." See Sachs's Motion at 10. Sachs further contends that the instant action is unlike Morillion and Rutti , where "the level [was] total control," see Sachs's Reply at 10 (citing and quoting Rutti v. Lojack Corp. ,
The parties have cross-moved for summary judgment; i.e., the parties submit this issue to the Court for judgment as a matter of law. Considering the rules as a whole (as limited by the Court's preceding discussion), the result is no different than the Court's preceding individual analysis of the rules of the Access Road and the general workplace rules, respectively. At bottom, Plaintiff was free on a daily basis to drive his own vehicle to work, carpool with other workers, ride an employer-provided bus to work from a multi-county area, or take employer-provided transportation from the Security Gate to the parking lot. By comparison, Plaintiff was not controlled to the extent the employer in Rutti curtailed its employee's rights by mandating "[use of] the company vehicle, [no] personal errands, [and no] passengers ... from home to his job and back."
3. The Security Gate was not "the first location where Plaintiff's presence was required" under Wage Order 16 ¶ 5(A)
Plaintiff separately argues that he is entitled to compensation for travel time on the Access Road because "Plaintiff's presence was required at the Security Gate" in a manner sufficient to trigger compensation under paragraph 5(A) of Wage Order 16. See Plaintiff's Opp'n at 20-21. On the other hand, Sachs contends that Plaintiff's "interaction [at the Security Gate] is too minimal" to constitute the required "presence" under Wage Order 16. For the reasons discussed below, the Court agrees with Sachs.
Paragraph 5(A) of Wage Order 16 provides:
All employer-mandated travel that occurs after the first location where the employee's presence is required by the employer shall be compensated at the employee's regular rate of pay or, if applicable, the premium rate that may be required....
Wage Order 16 ¶ (5)(A) (emphasis added).
As an initial matter, Sachs notes that paragraph 5 of Wage Order 16 goes on to instruct that "[t]his section shall apply to any employees covered by a valid collective bargaining agreement unless the collective bargaining agreement expressly provides otherwise ." Wage Order 16 ¶ 5(D) (emphasis added); see also Sachs's Motion at 22. Sachs thus argues that Plaintiff is barred from obtaining compensation under paragraph 5(A) of Wage Order 16 because "the [parties'] CBA expressly provides for compensation only after reporting to a location between 8:00 a.m. (reporting time at the parking) and 4:30 p.m. (employees' arrival at the parking lot after work)." See Sachs's Motion at 22. Plaintiff responds that "[t]he CBA nowhere even mentions paragraph 5 of the Wage Order, let alone 'expressly provide' that paragraph 5 does not apply." See Plaintiff's Opp'n at 21.
The Court agrees with Plaintiff that the CBA does not preclude Plaintiff's request for compensation pursuant to paragraph 5 of Wage Order 16. Burnside v. Kiewit Pacific Corp. ,
However, the Court finds that Plaintiff's brief stop at the guard shack to enable scanning of his badge was not a "location where the employee's presence is required"
In sum, the Court finds that as a matter of law, Plaintiff's pass through the Security Gate was not "the first location where Plaintiff's presence was required" and that Plaintiff is not entitled to compensation for his travel time on the Access Road under Wage Order 16 ¶ 5(A).
4. Conclusion
The Court finds that Plaintiff's travel time on the Access Road is not compensable under Wage Order 16 and California law. Accordingly, Sachs's motion for summary judgment of no liability under Plaintiff's first cause of action is GRANTED and Plaintiff's cross-motion for summary judgment of liability is DENIED.
Sachs moves for summary judgment that Plaintiff's remaining class claims against Sachs fail as a matter of law because they are entirely derivative of Plaintiff's first cause of action. See Sachs's Motion at 2; Sachs's Renotice of Motion at 2. The Court is unable to identify any opposition by Plaintiff to Sachs's motion for summary judgment on this issue. Moreover, the Court agrees that Plaintiff's remaining class claims (claims 2 through 6 of the Consolidated Complaint) are entirely derivative of claim 1. Accordingly, having granted summary judgment in Sachs's favor with respect to claim 1, the Court hereby GRANTS summary judgment in Sachs's favor with respect to the remaining class claims.
C. Plaintiff's Individual Claims
Plaintiff alleges three individual causes of action: Fair Employment and Housing Act ("FEHA") violation under California Government Code § 12940 ; intentional infliction of emotional distress; and wrongful termination in violation of California public policy. See Claims 7 to 9, Consol. Compl. ¶¶ 81-110, ECF 51. These individual claims are brought against Sachs only. Plaintiff is African American and alleges that he "was mistreated because of his race" and that he "was treated differently than other workers who were
Sachs moves for summary judgment as to all three individual claims on the basis that Sachs had legitimate and non-discriminatory grounds to terminate Plaintiff. See Sachs's Motion at 2; Sachs's Renotice of Motion at 2. Specifically, Sachs argues that "Plaintiff has no evidence that he was treated any differently because [of his race]" and that "[e]ven assuming that Plaintiff can make a prima facie case, Sachs is able to satisfy its burden of producing evidence that it terminated Plaintiff for a legitimate, non-discriminatory reason." See Sachs's Motion at 22, 23. Sachs walks through the McDonnell Douglas
Plaintiff worked for Sachs on the Project from approximately November 20, 2016 to March 3, 2017. See Griffin Decl. ¶ 3, ECF 50-2. Sachs's evidence shows that Plaintiff received a written warning on December 13, 2016, citing failure to follow instructions and improper conduct, including "yelling back to foreman." See Warning Letter, Ex. E to Rega Decl., ECF 40-5; Rega Decl. ¶ 14; Griffin Depo. at 131:8-22. The Warning Letter stated that "[m]oving forward [Plaintiff] has been placed in another crew." See Warning Letter. Plaintiff signed this warning letter, acknowledging that he had "read this warning and agree to correct the situation.... [and] understand that future violations may be cause for discharge." See id. Plaintiff subsequently was absent from work multiple times in early 2017, only working about half of the shifts he was scheduled to work in the first quarter of 2017. See Rega Decl. ¶ 15; Kinloch Decl. ¶ 8. Plaintiff missed work on January 2, January 17, February 23, March 1, and March 2, and only appeared for work for a total of seven days in the first quarter of 2017. See id. ; Griffin Payroll Records, Ex. F to Rega Decl., ECF 40-5. On March 3, 2017, Plaintiff received another written warning, citing failure to follow instructions, insubordination, leaving job without permission, and poor productivity. See Rega Decl. ¶ 17; Second Warning Letter, Ex. H to Rega Decl., ECF 40-5. Plaintiff refused to sign this warning letter. See id. The same day, Plaintiff was given notice of termination due to "absenteeism" and "refus[al] to work as directed." See Rega Decl. ¶ 18; Notice of Termination, Ex. I to Rega Decl., ECF 40-5.
The Court finds this evidence more than sufficient to satisfy Sachs's burden of producing evidence establishing a legitimate, non-discriminatory reason for terminating Plaintiff. See Merrick v. Hilton Worldwide, Inc. ,
Plaintiff has utterly failed to make such a showing. In response to Sachs's motion for summary judgment on his individual claims, Plaintiff submits exactly one paragraph-a total of eight lines-in opposition. See Plaintiff's Opp'n at 25. Within these eight lines, Plaintiff makes the conclusory argument that "Plaintiff's evidence demonstrates that the reasons for his termination were pretextual and in fact false" without any discussion whatsoever of the evidence. See
Applying these principles to Plaintiff's eight lines of opposition, Plaintiff is left with only the single assertion that "Plaintiff complained about Sachs['s] pay practices only days before he was fired." See Plaintiff's Opp'n at 25. But, Plaintiff fails to provide citation or evidentiary support for even this single assertion.
In sum, Plaintiff's opposition to Sachs's motion for summary judgment as to Plaintiff's individual claims is wholly insubstantial to establish pretext or raise a genuine issue of material fact as to any of the claims. Accordingly, the Court hereby GRANTS summary judgment in Sachs's favor with respect to Plaintiff's individual claims.
V. ORDER
For the foregoing reasons, IT IS HEREBY ORDERED that:
1. Sachs's motion for summary judgment as to Plaintiff's first cause of action for failure to pay compensation for travel time is GRANTED and Plaintiff's cross-motion for summary judgment of liability on the same issue is DENIED .
2. Sachs's motion for summary judgment that Plaintiff's remaining class claims (claims 2 through 6 of the Consolidated Complaint) are entirely derivative of claim 1 and therefore fail as a matter of law alongside claim 1 is GRANTED .
3. Sachs's motion for summary judgment as to Plaintiff's individual claims (claims 7 through 9 of the Consolidated Complaint) is GRANTED .
IT IS SO ORDERED.
Plaintiff objects to portions of the Rega Declaration. See Plaintiff's Opp'n at 25, ECF 54. These objections are overruled, for the reasons discussed in Section III infra.
Two additional defendants (First Solar, Inc. and California Flats Solar, LLC) were dismissed without prejudice on July 26, 2018. ECF 56.
Sachs disputes the extent to which some rules existed or applied. See Sachs's Opp'n at 21, ECF 63. For the instant motions, the Court credits all rules that a reasonable jury could accept based on the instant record in Plaintiff's favor.
McCarthy did not join in Sachs's motion for summary judgment and at this time McCarthy has not separately moved for summary judgment.
Plaintiff signed on to Sachs's "Standard Job Work Rules," which contemplate situations in which workers "are late or need to leave early." See Ex. 1 to Griffin Decl., ECF 50-2.