Griffin v. Sachs Electric Company et al, No. 5:2017cv03778 - Document 113 (N.D. Cal. 2019)

Court Description: ORDER GRANTING 89 DEFENDANT SACHS'S MOTION FOR SUMMARY JUDGMENT; DENYING 85 PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT. Signed by Judge Beth Labson Freeman on 5/28/2019. (blflc3S, COURT STAFF) (Filed on 5/28/2019)

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1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 SAN JOSE DIVISION 5 6 JUSTIN GRIFFIN, Plaintiff, 7 8 v. 9 SACHS ELECTRIC COMPANY, et al., 10 Defendants. ORDER GRANTING DEFENDANT SACHS’S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [Re: ECF 85, 89] 11 United States District Court Northern District of California Case No. 17-cv-03778-BLF 12 Plaintiff Justin Griffin filed this labor class action on behalf of himself and other workers 13 involved in the construction of the California Flats Solar Project in Central California. On behalf 14 of the putative class, Plaintiff seeks payment for “hours worked” under California law for 15 traveling between a security gate entrance (to the ranch where the project was located) and the 16 solar panel work zone set approximately 12 miles on to the property. Individually, Plaintiff asserts 17 unlawful employment practice, wrongful termination, and intentional infliction of emotional 18 distress claims. 19 Now before the Court are two motions: Defendant Sachs Electric Company’s motion for 20 summary judgment as to Plaintiff’s class and individual claims; and Plaintiff’s motion for partial 21 summary judgment as to liability against Sachs for failure to compensate the travel time in 22 question. The principal question is whether, under California law, Plaintiff’s travel time between 23 the security gate and the work zone constitutes “hours worked” mandating compensation. The 24 Court finds that Plaintiff’s travel time between the security gate and his parking lot nearby the 25 work zone does not constitute such “hours worked,” and that there is no genuine dispute of 26 material fact that Plaintiff was compensated for travel between his parking lot and the work zone. 27 Nor is Plaintiff’s travel time between the security gate and parking lot compensable under 28 Plaintiff’s theory of liability pursuant to California Industrial Welfare Commission (“IWC”) 1 Order 16-2001 ¶ 5(A). Thus, Sachs is entitled to summary judgment as to Plaintiff’s class claims. 2 In addition, the Court separately finds that Sachs is entitled to summary judgment as to Plaintiff’s 3 individual claims. Accordingly, for the reasons discussed below, Defendant Sachs’s motion for summary 4 5 judgment is GRANTED and Plaintiff’s motion for partial summary judgment is DENIED. 6 STATEMENT OF FACTS 7 A. 8 The California Flats Solar Project (“the Project”) involves the construction, operation, and 9 United States District Court Northern District of California I. California Solar Flats Project and the Parties to this Action maintenance of a 280-megawatt solar power generating facility in the County of Monterey, 10 California. See Ex. A to Rega Decl., ECF 40-5. The Project is located on approximately 2,367 11 acres of undeveloped grassland owned by Jack Ranch, a private property. See id.; Rega Decl.1 ¶ 2, 12 ECF 40-5. Due to the location of the Project and the presence of two endangered species, an 13 Incidental Take Permit (“ITP”) was required under the California Endangered Species Act before 14 work on the Project could begin. See Rega Decl. ¶ 5. The two endangered species are the San 15 Joaquin Kit Fox and the California Tiger Salamander (together, “the Covered Species”). On 16 October 23, 2015, the California Department of Fish and Wildlife issued an ITP allowing work to 17 commence. See generally Ex. A to Rega Decl. The defendants2 in this action are Sachs Electric Company (“Sachs”) and McCarthy 18 19 Building Companies, Inc. (“McCarthy”) (collectively, “Defendants”). Both performed work on 20 the Project. McCarthy is a general contractor and Sachs is an electrical subcontractor. See Rega 21 Decl. ¶ 10; McCarthy-Sachs Subcontract, Ex. B to Rega. Decl., ECF 40-5. McCarthy was 22 retained as general contractor for the Project and subcontracted Sachs to perform electrical work 23 on the Project site, including the installation and wiring of solar panels. See Rega Decl. ¶ 2; 24 McCarthy-Sachs Subcontract, Ex. B to Rega. Decl. Sachs employed workers on the Project from 25 approximately June 2016 to May 2017. Rega Decl. ¶ 2. 26 27 28 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. 2 Two additional defendants (First Solar, Inc. and California Flats Solar, LLC) were dismissed without prejudice on July 26, 2018. ECF 56. 2 1 United States District Court Northern District of California 1 Plaintiff Justin Griffin worked for Sachs as a solar panel installer on the Project from 2 approximately November 20, 2016 to March 3, 2017. See Griffin Decl. ¶ 3, ECF 50-2. Griffin 3 obtained employment with Sachs through International Brotherhood of Electrical Workers 4 (“IBEW”) Local Union 234 and remained an IBEW member throughout his time working on the 5 Project. Id. ¶ 4; Rega Decl. ¶ 11. Griffin’s employment with Sachs was terminated on March 3, 6 2017. Griffin Decl. ¶ 3; Rega Decl. ¶ 18; Notice of Termination, Ex. I to Rega Decl., ECF 40-5. 7 B. 8 A fence encloses the entire Project site. See Griffin Decl. ¶ 5, ECF 50-2. Every work day, 9 Plaintiff entered the grounds of the Project through the same security gate entrance (“the Security 10 Gate”) to Jack Ranch. See Griffin Decl. ¶ 6; Griffin Depo. at 34:11–24, Ex. 1 to Sachs’s Motion, 11 ECF 40-1. The Security Gate is located near the intersection of Highway 41 and Turkey Flats 12 Road in the County of Monterey, California. Griffin Decl. ¶ 5. A guard shack is located at the 13 Security Gate. Griffin Depo. at 34:11–24. 14 Travel Time and Travel Rules The solar panel zone—where workers installed solar panels—is located many miles within 15 the property. See Rega Decl. ¶ 3, ECF 40-5. A solar site access road (“the Access Road”) 16 connects the Security Gate with parking lots where workers were assigned to park. See id. ¶ 3; 17 Griffin Decl. ¶ 6. The Access Road is approximately 12 miles long and a one-way trip takes 18 approximately 45 to 55 minutes, depending on which parking lot was the assigned destination. 19 See Rega Decl. ¶ 3; Griffin Decl. ¶ 8; K. Manhart Decl. ¶ 9, ECF 50-3. From the parking lots, 20 workers are transported by buggy to specific work zones to install and work on solar panels. See 21 Rega Decl. ¶ 3; Griffin Depo. at 31:6–10. The buggy ride takes approximately 5 to 15 minutes. 22 See Jimenez Decl. ¶ 67, ECF 50-4; Bundren Decl. ¶ 66, ECF 50-6. Sachs’s Vice President, 23 Mr. Michael Rega, testified on behalf of Sachs that “[e]mployees are paid beginning at the point 24 when they board the buggy.” Rega Decl. ¶¶ 1, 4. Plaintiff presents testimony that some workers 25 heard Sachs management say the work day “is supposed to begin” after the buggy ride. See 26 Plaintiff’s Opp’n at 2 n.1, ECF 54 (citing Jimenez Decl. ¶ 67; Bundren Decl. ¶ 66). This does not 27 contradict Sachs’s sworn testimony that workers were paid for travel time on the buggies. In other 28 words, workers were not paid for travel time on the Access Road but were paid beginning from the 3 United States District Court Northern District of California 1 point in time when they boarded the buggy. See Rega Decl. ¶¶ 3, 4; see also Wilkinson Depo. 2 at 78:11–17, Ex. 10 to Blanchard Decl., ECF 50-1. 3 At new hire orientation, Plaintiff was informed that the only way for workers to enter and 4 exit the Project site was via the Security Gate and Access Road. See Griffin Decl. ¶¶ 7, 9. It was 5 not feasible to walk or bicycle from the Security Gate to the parking lots, see id. ¶ 9, but workers 6 could drive by car, carpool, or take a bus offered by McCarthy that picked up workers at locations 7 throughout a multi-county area, see Rega Decl. ¶ 3; Griffin Depo. at 52:12–53:7; Wilkinson Depo. 8 at 39:15–20, ECF 101-1. Workers could also be dropped off at the Security Gate and Sachs would 9 arrange transportation to the parking lots. See Rega Decl. ¶ 3. On some days, Plaintiff drove his 10 own car from the Security Gate to his assigned parking lot. Griffin Depo. at 23:12–22. On other 11 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 12 13 to enter through the Security Gate. See Griffin Depo. at 34:11–24. Whether driving or riding, 14 workers were not required to exit the car, but simply held up their badges for scanning by the 15 person(s) staffing the guard shack. See id. at 37:1–16; 40:13–22; 42:23–43:14. Plaintiff did not 16 utilize the optional McCarthy bus. Id. at 52:12–16. Workers who did take the bus were not 17 required to show their badges at the guard shack, but instead were scanned in and out at the 18 beginning and end of the bus ride. See Wilkinson Decl. ¶ 16, ECF 98-2; Wilkinson Depo. at 39:8– 19 40:7, ECF 101-1. Travel on the Access Road was governed by a number of rules.3 The ITP issued by the 20 21 California Department of Fish and Wildlife required the Project to “clearly delineate habitat of the 22 Covered Species within the Project Area with posted signs, posting stakes, flags, and/or rope or 23 cord, and place fencing as necessary to minimize the disturbance of Covered Species’ habitat.” 24 ITP § 6.12, Ex. A to Rega Decl., ECF 40-5. Project-related personnel were not permitted to cross 25 Covered Species’ habitat and were restricted to existing or project-approved travel routes. See id. 26 27 28 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. 4 3 United States District Court Northern District of California 1 § 6.13. Project-related vehicle traffic was restricted “to established roads, staging, and parking 2 areas.” See id. Moreover, “vehicle speeds [could] not exceed 20 miles per hour to avoid Covered 3 Species on or traversing the roads.” Id. The speed limit on some portions of the Access Road was 4 further restricted to 5 miles per hour in certain kit fox zones. See Rega Decl. ¶ 8, ECF 40-5. The 5 contract between McCarthy and Sachs requires “compl[iance] with all biological buffers and 6 conditions.” See McCarthy-Sachs Subcontract § 22, Ex. B to Rega. Decl., ECF 40-5. 7 According to Plaintiff, Defendants (as well as biologists) monitored workers driving on the 8 Access Road. See Griffin Decl. ¶ 30; Jimenez Decl. ¶ 31. Plaintiff states that while driving on the 9 Access Road he was not permitted to pass other vehicles (except when a car had broken down or 10 pulled over), was not permitted to drive “in a way that created a lot of dust,” and that if a pace car 11 was present he was required to follow it. See Griffin Decl. ¶¶ 39, 40, 45, 51. Except for 12 emergencies, workers “were not supposed to stop on the [] Access Road at any [locations] that 13 were not designated” as stops. See id. ¶ 56. Defendants provided portable toilets along the Access 14 Road that workers were permitted to use during the drive, but workers “could not stop and get out 15 of our vehicles to relieve ourselves at any location along the [] Access Road other than at these [] 16 toilet[s].” Id. ¶ 59. 17 Defendants informed Plaintiff that workers had been suspended or terminated for improper 18 actions on the Access Road, such as exceeding the speed limit. See Griffin Decl. ¶ 35. Speed 19 limits ranged from 5 to 20 miles per hour. See id. ¶ 41; Jimenez Decl. ¶ 43. Cattle grazed along 20 the Access Road and workers were not allowed to disrupt the cattle or local wildlife while driving 21 on the Access Road. See Griffin Decl. ¶¶ 46, 47. Workers were required to immediately report 22 any accidents that occurred on the Access Road. Id. ¶ 36. 23 Numerous additional rules that applied generally to the Project site applied beyond the 24 Security Gate. At new hire orientation and at worker meetings, Defendants informed Plaintiff and 25 other workers that they were subject to all rules of the Project site once they entered the Security 26 Gate. Griffin Decl. ¶ 32; Jimenez Decl. ¶ 28. These rules included “safety and personal protective 27 equipment rules, discrimination rules, anti-harassment rules, environmental rules, alcohol and 28 drug policies, rules related to being subject to searches for alcohol [and] drugs, no practical jokes, 5 1 no horseplay rules, no gambling rules, no photography, [and] no loud music.” See Griffin 2 Decl. ¶ 32. Due to drought conditions and the risk of fires, smoking was permitted only in 3 designated areas (which did not include the Access Road or the interior of vehicles on the Access 4 Road). See Rega Decl. ¶ 9; Griffin Depo. at 63:9–13. No firearms were permitted on the Project 5 site. See Jimenez Decl. ¶ 39. United States District Court Northern District of California 6 Defendants informed workers that Defendants could terminate workers for violating any of 7 the Project site rules. See Griffin Decl. ¶ 25. Workers were also required to carry their employee 8 badge from the time they entered the Security Gate to the time they exited. Griffin Decl. ¶ 20. 9 Workers were not permitted to enter the Project site before sunrise and were required to be off the 10 Project site by sunset. See Griffin Decl. ¶¶ 16, 17. At the beginning and end of the day, workers 11 driving or riding in cars would sometimes have to wait in line for approximately 10 to 20 minutes 12 to get through the Security Gate due to congestion. See id. ¶ 24. The Parties’ Collective Bargaining Agreement 13 C. 14 Plaintiff obtained employment with Sachs through IBEW Local Union 234 and was an 15 IBEW member throughout his time working on the Project. See Griffin Decl. ¶ 4; Rega 16 Decl. ¶ 11. Griffin’s employment with Sachs falls under a collective bargaining agreement 17 (“CBA”) between The Monterey Bay California Chapter of the National Electrical Contractors 18 Association and IBEW Local Union 234. See Rega Decl. ¶ 12; see also CBA, Ex. D to Rega 19 Decl., ECF 40-5. The IBEW did not file a grievance on behalf of Griffin or any other union 20 member for unpaid wages in connection with travel time between the Security Gate and the 21 parking lots on the Project site. Rega Decl. ¶ 13. 22 D. 23 Plaintiff filed suit against Sachs in state court on June 22, 2017, alleging six class action Procedural History 24 claims, including failure to pay compensation due, and three individual claims. See Sachs 25 Complaint, Ex. J to ECF 1. Sachs removed the Sachs action to federal court on June 30, 2017. 26 See Sachs Notice of Removal, ECF 1. Plaintiff filed a similar suit against McCarthy in state court 27 alleging the same class action claims on March 29, 2018. See McCarthy Complaint, Ex. A to 28 ECF 1-1, Case No. 5:18-cv-02623-BLF. McCarthy removed the McCarthy action to federal court 6 1 United States District Court Northern District of California 2 on May 3, 2018. See McCarthy Notice of Removal, ECF 1, Case No. 5:18-cv-02623-BLF. On July 16, 2018, the Court consolidated the two actions and permitted Plaintiff to file a 3 single consolidated complaint, see ECF 46, which Plaintiff did so file on July 23, 2018, see 4 Consol. Compl., ECF 51. On August 6, 2018, Defendants separately filed motions to strike the 5 portions of Plaintiff’s Consolidated Complaint that allege labor violations related to Plaintiff’s rest 6 and meal breaks. See Sachs Motion to Strike, ECF 59; McCarthy Motion to Strike, ECF 61. The 7 Court granted both motions in full on January 24, 2019. See Order Granting Motions to Strike 8 Portions of the Consolidated Complaint, ECF 86. The upshot is that Plaintiff’s allegations 9 concerning “meal and rest periods” are not part of the instant action. See id. at 2. On February 7, 10 2019, Defendants separately answered Plaintiff’s Consolidated Complaint. See ECF 94; ECF 95. 11 Sachs filed its Motion for Summary Judgment (“Sachs’s Motion”) on May 29, 2018. See 12 Sachs’s Motion, ECF 40. Plaintiff filed its Motion for Partial Judgment against Sachs (“Plaintiff’s 13 Motion”) on July 26, 2018. See Plaintiff’s Motion, ECF 57. On September 14, 2018, the parties 14 jointly requested to continue the hearing dates on the parties’ respective motions for summary 15 judgment in light of private mediation set in January 2019. See ECF 76. In response, the Court 16 terminated both motions without prejudice, subject to renotice for a new hearing date. See 17 ECF 77. The January 2019 mediation did not result in resolution of this action. On January 24, 18 2019, Plaintiff renoticed its motion for partial summary judgment. See Plaintiff’s Renotice of 19 Motion, ECF 85. On January 31, 2019, Sachs renoticed its motion for summary judgment. See 20 Sachs’s Renotice of Motion, ECF 89. As permitted by the Court, the parties did not refile the 21 briefing or exhibits in renoticing the respective motions. Thus, the Court’s citations herein refer to 22 the briefing and exhibits filed prior to renoticing. 23 On March 7, 2019, the Court heard oral argument on the instant motions (“the Hearing”). 24 At the Hearing, the Court granted Plaintiff permission to submit limited references to the existing 25 record with respect to two specific issues discussed at the Hearing. Plaintiff submitted these 26 references on March 7, 2019, shortly after the Hearing. ECF 105. On March 11, 2019, Sachs 27 filed a “Response” to Plaintiff’s references. ECF 107. Shortly thereafter, Plaintiff filed objections 28 to Sachs’s “Response.” ECF 109. 7 1 II. Federal Rule of Civil Procedure 56 governs motions for summary judgment. Summary 2 United States District Court Northern District of California LEGAL STANDARD 3 judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions 4 on file, together with the affidavits, if any, show that there is no genuine issue as to any material 5 fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. 6 Catrett, 477 U.S. 317, 322 (1986). “Partial summary judgment that falls short of a final 7 determination, even of a single claim, is authorized by Rule 56 in order to limit the issues to be 8 tried.” State Farm Fire & Cas. Co. v. Geary, 699 F. Supp. 756, 759 (N.D. Cal. 1987). 9 The moving party “bears the burden of showing there is no material factual dispute,” Hill 10 v. R+L Carriers, Inc., 690 F. Supp. 2d 1001, 1004 (N.D. Cal. 2010), by “identifying for the court 11 the portions of the materials on file that it believes demonstrate the absence of any genuine issue 12 of material fact,” T.W. Elec. Serv. Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 13 1987). In judging evidence at the summary judgment stage, “the Court does not make credibility 14 determinations or weigh conflicting evidence, and is required to draw all inferences in a light most 15 favorable to the nonmoving party.” First Pac. Networks, Inc. v. Atl. Mut. Ins. Co., 891 F. Supp. 16 510, 513–14 (N.D. Cal. 1995). For a court to find that a genuine dispute of material fact exists, 17 “there must be enough doubt for a reasonable trier of fact to find for the [non-moving party].” 18 Corales v. Bennett, 567 F.3d 554, 562 (9th Cir. 2009). 19 III. 20 PLAINTIFF’S EVIDENTIARY OBJECTIONS First, Plaintiff objects to portions of the following four declarations submitted in support of 21 Sachs’s motion for summary judgment: Hagan Declaration (ECF 40-3); Kinloch Declaration 22 (ECF 40-4); Rega Declaration (ECF 40-5); and Torres Declaration (ECF 40-2). See Plaintiff’s 23 Opp’n at 25, ECF 54. In total, Plaintiff objects to 29 separate portions of this testimony. See id. 24 However, Plaintiff makes only a blanket objection that purportedly applies to all 29 separate 25 portions—“that [the portions] constitute inadmissible conclusion, the witness lacks personal 26 knowledge of the facts stated, and the statements and exhibits constitute inadmissible hearsay.” 27 Id. Sachs argues that Plaintiff’s objections are “improper” because “Sachs has no idea which 28 challenged paragraph is objectionable on which ground or the reasoning behind any of the 8 1 objections . . . [and thus] [i]t is completely unreasonable to expect Sachs to fashion any response.” 2 See Sachs’s Reply at 15, ECF 72. The Court agrees. It is simply not realistic for Sachs or the 3 Court to identify which objections apply to which portions of the objected-to testimony or address 4 the reasoning underpinning any of Plaintiff’s objections. Therefore, these objections are 5 improperly formed and are hereby OVERRULED. Second, Plaintiff objects to the Jensen Declaration (ECF 72-2) submitted by Sachs in 6 7 support of its reply brief. See Plaintiff’s Objections to Declaration in Reply Brief, ECF 74. The 8 Court finds the Jensen Declaration (ECF 72-2) irrelevant to the instant motions and the Court does 9 not rely on or consider the testimony therein. Accordingly, Plaintiff’s objections at ECF 74 are 10 TERMINATED AS MOOT. Third, Plaintiff objects to Sachs’s “Response” (ECF 107) to Plaintiff’s references to the United States District Court Northern District of California 11 12 record (ECF 105) submitted shortly after the Hearing. See Plaintiff’s Objections to Sachs’s 13 Response, ECF 109. Plaintiff argues that Sachs’s Response asserts new arguments and refers to 14 additional facts outside the record, and that the Court did not give Sachs permission to submit such 15 briefing in response to Plaintiff’s references to the record. See id. at 2. The Court agrees. 16 Accordingly, Sachs’s Response at ECF 107 is hereby STRICKEN. 17 IV. 18 DISCUSSION Plaintiff moves for summary judgment of a single issue: whether Sachs is liable under 19 Plaintiff’s first cause of action, i.e. whether Sachs is liable for failure to pay for all “hours 20 worked.” See Plaintiff’s Memorandum at 1, ECF 57-1; Plaintiff’s Renotice of Motion, ECF 85. 21 Defendants’ alleged failure to pay for meal and rest periods is no longer part of this case. See 22 Order Granting Motions to Strike Portions of the Consolidated Complaint, ECF 86; see also 23 Section I supra. 24 Plaintiff’s “hours worked” claim divides into two parts. First, the time spent between the 25 Security Gate and employee parking lot and, second, the time spent on the buggy ride between the 26 parking lot and worksite. Plaintiff’s “buggy ride” time—Plaintiff’s travel time between the 27 parking lot and the solar panel work zone—is not in reasonable dispute. Sachs states that 28 “Plaintiff was paid beginning at the point where he boarded the buggy.” Sachs’s Motion at 6, 9 United States District Court Northern District of California 1 ECF 40. Indeed, Plaintiff acknowledged that “8:00 [a.m.] is my starting time . . . . [when we 2 would] jump in the buggies.” See Griffin Depo. at 30:1–20. Moreover, Sachs presents sworn 3 testimony from its Vice President that “[e]mployees are paid beginning at the point when they 4 board the buggy.” Rega Decl. ¶¶ 1, 4. Plaintiff presents no evidence to the contrary, but instead 5 testimony that some workers heard Sachs management say the work day “is supposed to begin” 6 after the buggy ride. See Plaintiff’s Opp’n at 2 n.1, ECF 54 (citing Jimenez Decl. ¶ 67; Bundren 7 Decl. ¶ 66); see also Plaintiff’s References to the Record at 2, ECF 105. Ms. Maria Jimenez (a 8 former Sachs employee) testified that she heard Sachs management say “that the start time for the 9 8 hour work day began either when the buggies got to [the] morning meeting site or to the work 10 site.” Jimenez Decl. ¶ 67. Ms. Jimenez claims that “[a]s a result, [unnamed] workers were not 11 paid for the buggy ride.” See id. This is mere speculation that the Court does not credit as 12 evidence. None of Plaintiff’s witnesses has submitted evidence showing that they did not receive 13 pay for the buggy ride. Plaintiff fails to name even a single worker who was allegedly not paid for 14 the buggy ride, and Plaintiff submits no paystubs or other evidence in support. In sum, the Court 15 finds no genuine dispute of material fact as to whether workers were paid for travel time on the 16 buggies from the parking lots to the solar panel work zones. Therefore, the only travel time in 17 question is Plaintiff’s travel time on the Access Road from the Security Gate to Plaintiff’s 18 assigned parking lot. See Consol. Compl. ¶¶ 24–43, ECF 51. Sachs moves4 for summary judgment of three issues: (1) whether Sachs is liable under 19 20 Plaintiff’s first cause of action; (2) whether Plaintiff’s remaining class claims against Sachs fail as 21 a matter of law because they are entirely derivative of Plaintiff’s first cause of action; and 22 (3) whether Sachs had legitimate and non-discriminatory grounds to terminate Plaintiff such that 23 Sachs is not liable under Plaintiff’s individual claims. See Sachs’s Motion at 2, ECF 40; Sachs’s 24 Renotice of Motion, ECF 89. 25 Accordingly, the parties’ motions are cross-motions with respect to whether the Sachs is 26 liable for failure to compensate Plaintiff for his travel time on the Access Road. The Court first 27 28 McCarthy did not join in Sachs’s motion for summary judgment and at this time McCarthy has not separately moved for summary judgment. 10 4 United States District Court Northern District of California 1 jointly addresses the travel time issue, followed by Sachs’s request for summary judgment as to 2 the remaining class claims, and lastly Sachs’s request for summary judgment as to Plaintiff’s 3 individual claims. As discussed below, Sachs’s motion for summary judgment is GRANTED and 4 Plaintiff’s motion for partial summary judgment is DENIED. 5 A. 6 Sachs contends that “Plaintiff controlled how he got to work” and that Plaintiff’s travel 7 between the Security Gate and the parking lot is a type of “ordinary commute” that “California 8 law makes clear . . . is not compensable.” See Sachs’s Motion at 8; Sachs’s Opp’n at 6, ECF 63. 9 More specifically, Sachs contends that Plaintiff’s travel time is not compensable because 10 “Defendants did not exert control over Plaintiff during the drive and the workday had not 11 otherwise already begun.” See Sachs’s Motion at 15; Sachs’s Opp’n at 13. Plaintiff counters that 12 Sachs is required to compensate workers for travel time on the Access Road for two independent 13 reasons: (1) that under California law, travel time on the Access Road constitutes “hours worked” 14 because workers are under Sachs’s “control”; and (2) that the Security Gate was “the first location 15 where the employee’s presence” was required under California IWC Order 16-2001 making 16 subsequent travel on the Access Road “employer-mandated travel.” See Plaintiff’s Opp’n at 16, 17 20; see also Plaintiff’s Memorandum at 16, 20. The Court addresses the following in turn: 18 (1) background principles concerning “hours worked” under California law; (2) Plaintiff’s “hours 19 worked” due to “control” argument; (3) Plaintiff’s “first location where the employee’s presence 20 was required” argument; and (4) a brief conclusion. 21 Travel Time on the Access Road 1. “Hours Worked” Principles under California Law 22 The Industrial Welfare Commission (“IWC”) is “the state agency empowered to formulate 23 regulations (known as wage orders) governing employment in the State of California.” Tidewater 24 Marine Western, Inc. v. Bradshaw, 14 Cal. 4th 557, 576 (1996) (citing Cal. Lab. Code §§ 1173, 25 1178.5, 1182). IWC has promulgated at least 16 wage orders pertaining to specific industries and 26 specific occupations. Wage Order No. 16-2001 (“Wage Order 16”) applies to all persons 27 employed in the on-site occupations of construction, drilling, logging, and mining, subject to 28 exceptions not relevant here. See generally Wage Order 16, Cal. Code Regs. tit. 8, § 11160. 11 1 2 All 16 wage orders contain the same definition of “hours worked” as does Wage Order 16 3 (except for Wage Orders 4 and 5 which include additional industry-specific language). Thus 4 consistent with its fellow wage orders, Wage Order 16 provides: 5 6 “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. 7 Wage Order 16 ¶ (2)(J) (emphasis added). Multiple courts have analyzed whether certain job- 8 related activities constitute “hours worked” under the IWC’s wage orders. The following 9 discussion is representative. 10 United States District Court Northern District of California Plaintiff brings the instant action under Wage Order 16. See, e.g., Consol. Compl. ¶ 29. An employee who is subject to an employer’s control is not required to be working during 11 that time to be compensated under the IWC’s wage orders. See Bono Enterprises, Inc. v. 12 Bradshaw, 32 Cal. App. 4th 968, 974–75 (Ct. App. 1995), disapproved of on other grounds by 13 Tidewater, 14 Cal. 4th at 573–74. In Bono, the California Court of Appeal found that employees 14 in the manufacturing industry who were required to remain on the work premises during their 15 lunch hour had to be compensated for that time under the definition of “hours worked” in Wage 16 Order 1. See 32 Cal. App. 4th at 979. The Bono court held that “[w]hen an employer directs, 17 commands or restrains an employee from leaving the work place during his or her lunch hour and 18 thus prevents the employee from using the time effectively for his or her own purposes, that 19 employee remains subject to the employer’s control.” Id. at 975. Likewise, in Aguilar v. Ass’n 20 for Retarded Citizens, 234 Cal. App. 3d 21 (Ct. App. 1991), the Court of Appeal found that 21 employees who were required to be on the employer’s premises and on call but were allowed to 22 sleep were “subject to the control of [the] employer” under Wage Order 5 regardless of whether 23 the employees were sleeping or working during the time in question. Id. at 23, 30–31. 24 The type of time in question in the instant action is not the “lunch time” in Bono or the 25 “sleep time” in Aguilar but instead travel time. “California law governs an employee’s wage 26 entitlement for transportation and provides a rule for distinguishing ‘compulsory travel time’ from 27 ‘an ordinary commute.’” McMaster v. Coca-Cola Bottling Co., 392 F. Supp. 2d 1107, 1114 (N.D. 28 Cal. 2005) (citing Morillion v. Royal Packing Co., 22 Cal. 4th 575, 579 n.2 (2000)). “The inquiry 12 United States District Court Northern District of California 1 into ‘compulsory travel time’ turns on the level of control exerted by an employer over the 2 employee, considering factual questions such as what activities an employee cannot engage in by 3 traveling in company transportation.” McMaster, 392 F. Supp. 2d at 1114 (quoting and citing 4 Morillion, 22 Cal. 4th at 586–87) (emphasis added). The California Supreme Court has made 5 clear that such “compulsory travel time” constitutes “hours worked” under the IWC’s wage orders 6 entitling employees to compensation. See Morillion, 22 Cal. 4th at 587 (“Interpreting the plain 7 language of ‘hours worked,’ [] we find that plaintiffs’ compulsory travel time . . . was 8 compensable [under Wage Order 14].”). 9 In Morillion, defendant Royal Packing Co. required its agricultural employees (the 10 plaintiffs) to meet for work each day at specified parking lots or assembly areas—i.e. “departure 11 points.” See 22 Cal. 4th at 579. The employees were not permitted to use their own transportation 12 to get to and from the departure points to the fields where they actually worked. Id. Instead, 13 employees were required to “me[e]t at these departure points, [from where] Royal transported [the 14 employees] in buses that Royal provided and paid for[] to the fields . . . [and from the fields] back 15 to the departure points on its buses [at the end of each day].” See id. In deciding whether the 16 employees’ travel time on Royal’s buses from the departure points to the fields and back again 17 constituted “hours worked,” the California Supreme Court instructed that “[t]he level of the 18 employer’s control over its employees, rather than the mere fact that the employer requires the 19 employees’ activity, is determinative.” See id. at 587. 20 Crucial to this inquiry is what travel options are available to the employees. The Morillion 21 court explained that “[if] commuting on their own, employees may choose and may be able to run 22 errands before work and to leave from work early for personal appointments. See id. at 587. By 23 contrast, “Royal required plaintiffs to meet at the departure points at a certain time to ride its buses 24 to work, and it prohibited them from using their own cars, subjecting them to verbal warnings and 25 lost wages if they did so.” Id. Thus, “by directing and commanding plaintiffs to travel between 26 the designated departure points and the fields on its buses, Royal ‘controlled’ them within the 27 meaning of ‘hours worked’ under [Wage Order 14].” See id. (internal quotations and citation 28 omitted). Morillion accordingly held that “[w]hen an employer requires its employees to meet at 13 1 designated places to take its buses to work and prohibits them from taking their own 2 transportation, these employees are ‘subject to the control of an employer,’ and their time spent 3 traveling on the buses is compensable as ‘hours worked.’” Id. The court noted that “this 4 compulsory travel time does not include the time plaintiffs spent commuting from home to the 5 departure points and from the departure points back again.” See id. at 579 n.2. 6 7 and Sachs: Overton v. Walt Disney Co., 136 Cal. App. 4th 263 (Ct. App. 2006), and Burnside v. 8 Kiewit Pacific Corp., 491 F.3d 1053 (9th Cir. 2007). The Court discusses each in turn. 9 United States District Court Northern District of California Morillion has since been applied in at least two “travel time” cases relied on by Plaintiff In Overton, plaintiff (a Disneyland employee) was assigned parking in a lot one mile from 10 the employee entrance to Disneyland. 136 Cal. App. 4th at 265. Disney provided a shuttle from 11 this lot to the employee entrance. Id. Plaintiff brought a proposed class action on behalf of all 12 Disney employees who parked in this “satellite” lot, seeking compensation for their travel time on 13 the Disney-provided shuttle. Id. However, Disney employees were not required to drive to work 14 and were not required to take the shuttle. See id. Instead, employees assigned to the lot had the 15 option of not using the lot whatsoever (e.g., traveling to work by bus or getting dropped off 16 directly outside the employee entrance), or parking in the lot but not taking the shuttle (e.g., 17 walking or bicycling from the lot to the employee entrance). See id. at 267–68. On these 18 undisputed facts, the California Court of Appeal affirmed the trial court’s finding that Morillion 19 did not apply, and the trial court’s grant of summary judgment in favor of Disney. See Overton, 20 136 Cal. App. 4th at 265, 268. The Overton court reasoned that under Morillion, “the key factor is 21 whether Disney required its employees who were assigned parking in the [] lot to park there and 22 take the shuttle.” Overton, 136 Cal. App. 4th at 271 (emphasis in original). Because Disney 23 “obviously did not” have such a requirement and employees could bypass the lot and/or shuttle 24 altogether, the Overton court held that Disney did not exercise the requisite level of control over 25 employees riding the shuttle to convert the time into “hours worked.” See id. at 270–71. 26 In Burnside, plaintiffs were industrial workers who alleged defendant Kiewit Pacific Corp. 27 “never compensated [them] for time they spent traveling from designated meeting sites to their 28 jobsites and from those jobsites back to the [] meeting sites.” 491 F.3d at 1055. At the designated 14 United States District Court Northern District of California 1 meeting sites Kiewit’s managers would instruct the workers “on the day’s tasks” and had them 2 “retrieve equipment and plans for use” on Kiewit’s projects. See id. at 1056. After the meetings 3 concluded, the workers traveled in company vans or trucks—frequently operated by the 4 employees themselves—to their jobsites. Id. Plaintiff Burnside estimated that the combined 5 meeting and travel times “added two to two-and-one-half hours of work to each employee’s day.” 6 Id. Plaintiffs’ claims were brought under California state law, including alleged violations of 7 Wage Order 16. See id. at 1055, 1058. The primary issue faced by the Ninth Circuit on appeal 8 was “[w]hether the employees’ claims, brought under state law, [were] preempted by section 301 9 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185(a).” Id. at 1055. The Ninth 10 Circuit held “that Burnside’s claims are not preempted by section 301 and may go forward under 11 state law because (1) the right to be compensated for employer-mandated travel time is a right 12 conferred by state law, independent of the CBAs; and (2) the matter at hand can be resolved 13 without interpreting the CBAs.” Id. at 1058. 14 Although not explicitly faced with the question of whether Burnside’s travel time 15 constituted “hours worked” under Wage Order 16, the Ninth Circuit noted that “[t]he facts of 16 Morillion are entirely reminiscent of the facts alleged in the [Burnside] complaint.” See Burnside, 17 491 F.3d at 1061. The court explained that Kiewit’s requirements were “[l]ike [] the defendant[’s] 18 in Morillion, [who] required its employees, who were agricultural workers, ‘to meet for work each 19 day at specified parking lots or assembly areas’ and ‘prohibited [them] from using their own 20 transportation to get to and from the fields.’” Burnside, 491 F.3d at 1061 (citing and quoting 21 Morillion, 22 Cal. 4th at 579). The Ninth Circuit reiterated Morillion’s ruling “that ‘[t]ime 22 employees spend traveling on transportation that an employer provides but does not require its 23 employees to use may not be compensable as hours worked.’” Burnside, 491 F.3d at 1062 (citing 24 and quoting Morillion, 22 Cal. 4th at 588). The Ninth Circuit further reasoned that “Wage 25 Order 16-2001 requires payment for travel time only when the employer mandates use of its 26 transportation.” Burnside, 491 F.3d at 1072 (emphasis in original). 27 // 28 // 15 1 United States District Court Northern District of California 2 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 3 Standards Act (“FLSA”), and the Portal-to-Portal Act of 1947 at length in its opening brief. See, 4 e.g., Sachs’s Motion at 10–14, ECF 40. Plaintiff responds that “federal law has no application to 5 Plaintiff’s state law claims.” See Plaintiff’s Opp’n at 23, ECF 54. The Court agrees that federal 6 law is not applicable here. As articulated by the California Supreme Court in Morillion, “the 7 relevant portions of the FLSA and Portal-to-Portal Act differ substantially from [the IWC’s] 8 [w]age [o]rder[s] [] and related state authority.” 22 Cal. 4th at 594. Therefore, “federal law 9 should be given no deference in interpreting California wage orders” because “that federal labor 10 law differs substantially from state law.” See Overton, 136 Cal. App. 4th at 270 (citing Morillion, 11 22 Cal. 4th at 588). Accordingly, the Court does not credit or address Sachs’s arguments made 12 under federal law. 13 Turning to California law, Sachs argues that Plaintiff’s travel time on the Access Road “is 14 not compensable because it is a continuation of an ordinary commute that started at Plaintiff’s 15 home and ends at the parking lot where Plaintiff began getting paid.” See Sachs’s Motion at 9 16 (citing Morillion, 22 Cal. 4th at 575, 579 n.2). Sachs contends that under California law it did not 17 exercise the requisite control over Plaintiff because “Sachs did not require [Plaintiff] to take any 18 particular mode of transportation to get to work,” but instead “Plaintiff controlled how he got to 19 work.” See id. at 8. Plaintiff counters that “[o]nce [Plaintiff] arrived at the Security Gate [] and 20 thereafter, [Plaintiff] w[as] clearly under Sachs’s control and could not effectively use such time 21 for [his] own purposes.” Plaintiff’s Opp’n at 17. Plaintiff further argues that “[t]he control 22 exercised by Sachs over its workers is essentially the same as that exercised by the employer in 23 Morillion.” Id. Thus, both parties rely on Morillion in support of their respective positions. For 24 the reasons discussed below, the Court finds that Plaintiff’s travel time on the Access Road does 25 not constitute “hours worked” under California law. 26 From a factual standpoint, none of the three travel time cases raised by the parties is 27 directly on point. Morillion and Burnside both concerned employer-mandated travel on employer- 28 provided transportation from a parking lot or meeting point to the respective work zones. In 16 1 Morillion, the agricultural workers were required to ride the employer’s buses from the departure 2 points (parking lots or assembly areas) to the fields and back again. 22 Cal. 4th at 579. In 3 Burnside, the industrial workers were likewise required to utilize the employer’s vehicles for 4 roundtrip travel between designated meeting sites and their jobsites. 491 F.3d at 1055. In other 5 words, the employees in Morillion and Burnside had no choice but to use employer-provided 6 transportation—they were “prohibited [] from using their own transportation,” Morillion, 22 Cal. 7 4th at 579. On these facts, the Morillion court found that the employer “controlled” the employees 8 within the meaning of “hours worked” under Wage Order 14. Id. at 587. United States District Court Northern District of California 9 Here, by contrast, Plaintiff and his fellow workers were not required to use employer- 10 provided transportation to travel on the Access Road from the Security Gate to the parking lots. 11 Far from it. Workers could choose means of travel on the Access Road from a variety of 12 options—to drive alone in their own vehicle, carpool with other workers, take a bus offered by 13 McCarthy from locations throughout a multi-county area, or take transportation offered by Sachs 14 if a worker was dropped off at the Security Gate. See Rega Decl. ¶ 3, ECF 40-5; Griffin Depo. 15 at 23:12–22, 40:13–22, ECF 50-2; Wilkinson Depo. at 39:15–20, ECF 101-1. Thus, Morillion’s 16 holding that employees are “subject to the control of an employer” where “an employer requires 17 its employees to meet at designated places to take its buses to work and prohibits them from taking 18 their own transportation” is not controlling with respect to Plaintiff’s travel time on the Access 19 Road. See Morillion, 22 Cal. 4th at 587. Instead, the facts of Morillion and Burnside are more 20 akin to Plaintiff’s travel by buggy from his assigned parking lot to the solar panel work zone— 21 travel that is employer-mandated and Plaintiff’s sole option. See Rega Decl. ¶ 3; Griffin Depo. 22 at 31:6–10. However, Plaintiff’s compensation for travel time by buggy is not in meaningful 23 dispute. 24 On the other hand, the controlling facts in Overton do not sufficiently map on to the facts 25 here to allow direct application of the Overton holding in this case. In Overton, employees 26 traveling from the parking lot to the worksite were not required to ride the employer-provided 27 shuttle between the two locations. 136 Cal. App. 4th at 270–71. Instead, employees could bypass 28 the lot and/or shuttle altogether, by walking or bicycling from the lot to the worksite or by arriving 17 1 directly to the worksite by other means. See id. at 267–68. Here, Plaintiff was required to actually 2 travel on the Access Road to reach the solar panel work zone, unlike the employees in Overton 3 who could arrive to the worksite without spending any time whatsoever on the route in question. 4 In other words, the employees in Overton were not actually required to travel between the parking 5 lot and the worksite. See id. Thus, Overton’s holding that Disney did not “control” employees 6 riding the shuttle within the meaning of “hours worked” fails to compel the same outcome here. 7 See id. at 270–71. 8 United States District Court Northern District of California 9 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 10 “Wage Order 16-2001 requires payment for travel time only when the employer mandates use of 11 its transportation.” Burnside, 491 F.3d at 1072 (emphasis in original). This articulation appears 12 slightly more stringent than Morillion’s ruling that “[t]ime employees spend traveling on 13 transportation that an employer provides but does not require its employees to use may not be 14 compensable as hours worked.” Morillion, 22 Cal. 4th at 588. However, Burnside focused on 15 preemption and did not make an “hours worked” or “control” determination under the IWC’s 16 wage orders, notwithstanding Burnside’s recognition that “[t]he facts of Morillion are entirely 17 reminiscent of the facts alleged in the instant complaint.” Burnside, 491 F.3d at 1055, 1061. 18 Thus, the Court does not read Morillion as stringently—to necessarily foreclose compensation for 19 travel time under Wage Order 16 if the employer did not literally mandate use of its own 20 transportation. Put differently, the “control” analysis is more nuanced—an employer is not off the 21 hook simply because employees could ride a non-employer-provided vehicle. Indeed, Morillion 22 instructs that “by requiring employees to take certain transportation to a work site, employers 23 thereby subject those employees to its control by determining when, where, and how they are 24 to travel.” 22 Cal. 4th at 588 (emphasis added). Moreover, in Rutti v. Lojack Corp., 596 F.3d 25 1046 (9th Cir. 2010), the Ninth Circuit clarified its position, noting that under Morillion “the level 26 [of] control” is determinative. See Rutti, 596 F.3d at 1062. Accordingly, although whether 27 mandatory travel on employer-provided transportation is “the key factor,” see Overton, 136 Cal. 28 App. 4th at 271, the Court will also consider other aspects of Sachs’s purported “control” over 18 1 United States District Court Northern District of California 2 Plaintiff’s travel time on the Access Road. With these cases in mind, the Court considers the arguments raised by the parties. The 3 parties’ briefing generally concerns two types of rules: (1) rules specific to the Access Road; and 4 (2) general workplace rules that applied to Plaintiff’s travel on the Access Road. See, e.g., Sachs’s 5 Motion at 15–18, 19–20; Plaintiff’s Opp’n at 4–8, 9–14. Thus, the Court’s discussion proceeds as 6 follows: (1) Plaintiff’s mode of transportation and whether Sachs’s rules of the Access Road 7 equate to control within the meaning of “hours worked”; (2) whether Sachs’s general workplace 8 rules as applied to travel on the Access Road equate to control; and (3) whether the combined 9 rules—i.e., a totality of the circumstances—equate to control. Each of the three issues is discussed 10 in turn. For the reasons stated below, whether taken one by one or viewed as a whole, the Court 11 finds that Sachs’s rules of the Access Road and workplace rules that applied to Plaintiff’s travel on 12 the Access Road did not subject Plaintiff “to the control of [the] employer” within the meaning of 13 “hours worked” under Wage Order 16. 14 a. Plaintiff’s Mode of Transportation and Sachs’s Rules of the Access Road 15 Sachs contends that Plaintiff was “not require[d] [] to take any particular mode of 16 transportation to get to [the parking lot]” and that under California law employees are not entitled 17 to compensation where they “have a choice about [how to] commute to work.” See Sachs’s 18 Motion at 8–9; see also Sachs’s Opp’n at 7. In other words, Sachs argues that California law does 19 not require an employer to compensate an employee for travel time “where [the] employee drove 20 his or her own vehicle to work directly from home.” See Sachs’s Motion at 9. Plaintiff counters 21 that Sachs’s requirement that “workers [] use a specific route on private land after passing through 22 [] a specific security gate into a project site surrounded by fences and exercising stringent control 23 over the employees’ activities on route to the daily work areas is no different than requiring 24 workers to use a bus to travel to a work area as in Morillion.” See Plaintiff’s Opp’n at 17. The 25 Court disagrees with Plaintiff. As previously discussed, the travel time in Morillion found to 26 constitute “hours worked” was between specified parking lots or assembly areas (i.e. departure 27 points) and the fields where the employees worked. 22 Cal. 4th at 579. Morillion made clear that 28 “this compulsory travel time does not include the time plaintiffs spent commuting from home to 19 1 the departure points and from the departure points back again.” See id. at 579 n.2. Here, 2 Plaintiff’s travel on the Access Road is more analogous to the Morillion employees’ travel “from 3 home to the departure points” than “[from the departure points] to the fields where plaintiffs 4 actually worked.” See id. at 575, 579 n.2. United States District Court Northern District of California 5 Indeed, the California Supreme Court admonished that Morillion “should not be construed 6 as holding that all travel time to and from work” is compensable. 22 Cal. 4th at 587. In other 7 words, the mere fact that Plaintiff’s only pathway to his departure point (the specified parking lot 8 at which Plaintiff would board a buggy and travel to the solar panel work zone) was via the Access 9 Road is not determinative. See id. Such a requirement is no different than mandating that an 10 employee who works in an isolated building on a private campus use a single accessway to that 11 building. As Sachs points out, see Sachs’s Motion at 10–11, travel on an employer’s premises to 12 find a parking space or walk to an elevator or certain department is generally not compensable. In 13 the “isolated building” example, and in the instant action, the employer requires the employee to 14 use the single accessway, but it is “[t]he level of the employer’s control over its employees, rather 15 than the mere fact that the employer requires the employees’ activity, [that] is determinative.” See 16 id. at 587. 17 Thus, the question at hand turns on the level of control Sachs exercised over Plaintiff on 18 the Access Road. See Morillion, 22 Cal. 4th at 586–87. Crucial to this inquiry is what travel 19 options are available to the employees. The “key factor” is whether Sachs imposed mandatory 20 travel on employer-provided transportation. See Overton, 136 Cal. App. 4th at 271. Sachs 21 imposed no such requirement—workers could traverse the Access Road in their own vehicles, 22 carpool with other workers, ride a bus offered by McCarthy from locations throughout a multi- 23 county area, or take transportation offered by Sachs from the Security Gate to the parking lots. 24 See Rega Decl. ¶ 3, ECF 40-5; Griffin Depo. at 23:12–22, 40:13–22, 52:12–53:7, ECF 50-2; 25 Wilkinson Depo. at 39:15–20, ECF 101-1. Thus, the workers were neither literally required nor 26 effectively required to make use of employer-provided transportation to travel on the Access Road 27 from the Security Gate to the parking lots. Case in point, Plaintiff drove his own car from the 28 Security Gate to his assigned parking lot on some days, while on other days Plaintiff was a carpool 20 1 United States District Court Northern District of California 2 passenger with other workers. Griffin Depo. at 23:12–22, 40:13–22. This cuts against “control.” Plaintiff argues that nonetheless, “Sachs workers had no ability to run errands once they 3 passed through the Security Gate” and that after passing through the Security Gate “they were not 4 free to use the time effectively for their own purposes.” See Plaintiff’s Opp’n at 18. Sachs 5 responds that Plaintiff’s argument is not salient because no employee in any work context driving 6 her own vehicle could run errands while “traveling on the employer’s premises before work.” See 7 Sachs’s Reply at 9. In other words, Sachs argues that “[t]he fact that Plaintiff could no longer run 8 an errand while on the Project [site] does not speak to the level of control.” See id. The Court 9 agrees with Sachs that Plaintiff’s argument misses the essential point. The Morillion court 10 explained that “[if] commuting on their own, employees may choose and may be able to run 11 errands before work and to leave from work early for personal appointments.” 22 Cal. 4th at 587. 12 Here, Plaintiff was free to arrange his own commute in a manner that best suited his ability to run 13 errands or attend personal appointments before or after work—he simply could not engage in such 14 personal tasks leading up to entry and immediately following exit from the parking lot because 15 there were no services or stores available on that twelve-mile stretch. In a sense, the Access Road 16 is no different than the long stretches of Central Valley roads that have absolutely no services, 17 stores, or rest areas. And, Plaintiff was not prohibited from stopping at any dry cleaner or 18 pharmacy on his commute. Although Plaintiff was required to travel up and down the Access 19 Road before conducting a given personal errand or activity, Plaintiff nonetheless had discretion to 20 drive his own vehicle, ride with others, ride a McCarthy-provided bus, or make other 21 arrangements to be picked up or dropped off at the Security Gate before or after work. In other 22 words, “[b]y commuting on [his] own,” see Morillion, 22 Cal. 4th at 587, Plaintiff retained the 23 ability to arrange his commute to suit his personal preferences, irrespective of the conditions 24 imposed by Sachs (and the State of California) once on the Access Road. 25 Indeed, in its discussion finding that federal authority should be given no deference, the 26 Morillion court still distinguished a federal opinion that had found travel time not compensable. 27 22 Cal. 4th at 589 n.5 (distinguishing Vega v. Gasper, 36 F.3d 417 (5th Cir. 1994)). In doing so, 28 the Morillion court explained that “we find the fact that the Vega employees were free to choose— 21 1 rather than required—to ride their employer’s buses to and from work, a dispositive, 2 distinguishing fact.” 22 Cal. 4th at 589 n.5. Thus, Morillion makes clear that an employee’s 3 freedom to “cho[o]se . . . how to get to and from work” strongly indicates the absence of “control” 4 within the meaning of “hours worked” under the wage orders. See id. The same principle applies 5 where a Sachs worker permissibly started work late or permissibly left work early. By commuting 6 on their own, workers could arrange to arrive at the parking lot later than normal or leave from the 7 parking lot earlier than normal5 without relying on employer-provided transportation, thus 8 exercising options available by virtue of driving their own vehicles to work. Cf. Morillion, 22 Cal. 9 4th at 587 (“Royal required plaintiffs to meet at the departure points at a certain time to ride its 10 buses to work, and it prohibited them from using their own cars.”) (emphasis added). Moreover, as pointed out by Sachs, see Sachs’s Reply at 6, ECF 72, the California United States District Court Northern District of California 11 12 Supreme Court recently rejected the de minimis doctrine found in the Fair Labor Standards Act 13 (“FLSA”), see Troester v. Starbucks Corp., 5 Cal. 5th 829, 835 (2018). This implies that the 14 length of time spent by the employee in the conduct at issue—whether relatively short or relatively 15 long—is not relevant to the analysis of whether the time constitutes “compensable work,” see id. 16 at 847. Here, as to be expected, neither party argues that the length of time in transit is 17 determinative. Accordingly, the Court does not factor in the length of Plaintiff’s commute on the 18 Access Road—about 50 minutes each way, see Rega Decl. ¶ 3; Griffin Decl. ¶ 8—in analyzing 19 “control,” but rather whether Sachs exercised the requisite level of control over the travel time in 20 question by virtue of the applicable rules. While driving his vehicle or carpooling with other workers Plaintiff was subject to the 21 22 rules of the Access Road. Sachs contends that these rules—e.g., “[f]ollowing a posted speed limit, 23 not interfering with animals [], not bringing visitors, and not smoking”—did “not divert Plaintiff 24 in any way from reaching the parking lot.” See Sachs’s Motion at 19. Sachs further contends that 25 “each rule is analogous to ordinary rules on virtually every employer’s premises that employees 26 must respect at all times, even when not getting paid.” Id. The Court agrees. The rules of the 27 28 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. 22 5 United States District Court Northern District of California 1 Access Road are fundamentally no different than limitations imposed on travel through other types 2 of premises where employees first pass through a security gate and drive to a parking lot before 3 proceeding to their actual worksite or building. In addition, as pointed out by Sachs, see id. at 19– 4 20, the State of California, not Sachs, originated many of the restrictions. For example, “vehicle 5 speeds [could] not exceed 20 miles per hour to avoid Covered Species on or traversing the roads,” 6 see ITP § 6.13, Ex. A to Rega Decl., ECF 40-5, and the speed limit was further restricted to 5 7 miles per hour in certain kit fox zones, see Rega Decl. ¶ 8, ECF 40-5. In the same vein, 8 employees were not permitted to cross Covered Species’ habitat and were restricted to existing or 9 project-approved travel routes. See ITP § 6.13. These rules of the road stem from requirements of 10 the California Endangered Species Act, articulated by the California Department of Fish and 11 Wildlife, not Sachs. See Rega Decl. ¶ 5; see generally ITP. And while “[t]here was no possible 12 way to walk or ride a bicycle from the Security Gate . . . to the parking lot,” see Griffin Decl. ¶ 9, 13 ECF 50-2, this was an inherent feature of the Project site rather than an independent direction or 14 command imposed by Sachs on its employees. 15 Sachs further argues that “a rule that employees must drive safely and not exceed a certain 16 speed while driving on the employer’s property at all times, even when not getting paid, is [] 17 commonsense.” Sachs’s Motion at 20 (emphasis removed). Indeed, low speed limits or restricted 18 access zones are not atypical on an employer’s premises. A daycare or school with children 19 present may require extremely low vehicle speeds, limit vehicle traffic to a specific roadway, 20 and/or restrict cell phone use. Similar restrictions apply to numerous premises where workers 21 drive for some distance on to an employer’s property to park. The Court is unpersuaded that such 22 safety precautions convert travel time into “hours worked” under the IWC’s wage orders and 23 Morillion. The same goes for Sachs’s rules that workers could not pass other vehicles (except 24 when a car had broken down or pulled over), could not drive “in a way that created a lot of dust,” 25 could not smoke on the Access Road in or out of their vehicles, were required to report accidents, 26 and the like. See Griffin Decl. ¶¶ 39, 40, 45, 51, 53; see also Plaintiff’s Opp’n at 9–13. The Court 27 agrees with Sachs, see Sachs’s Motion at 4, 16–17, that these restrictions are safety-oriented in 28 nature and are not fundamentally different from restrictions inherent to travel from the security 23 1 gate of a compound or campus to the parking lot. Likewise, Sachs’s rules that workers “were not 2 supposed to touch or feed anything to the local wildlife or cattle [] along the [] Access Road” or 3 play “loud music” that would disturb the animals, see Plaintiff’s Opp’n at 11–12 (citing Griffin 4 Decl. ¶¶ 48, 50), are a type of universal rules common to general travel on an employer’s 5 premises. The same reasoning applies to Sachs’s rule that workers were not permitted to be on the 6 Project site between sunset and sunrise, see Griffin Decl. ¶¶ 16, 17. United States District Court Northern District of California 7 In fact, Plaintiff goes so far as to argue that Sachs “controlled” its workers under Wage 8 Order 16 based in part on Sachs’s rule that workers “could not stop and get out of their vehicles to 9 relieve themselves at any location along the [] Access Road other than at [the provided] portable 10 toilet sites.” See Plaintiff’s Opp’n at 13 (citing Griffin Decl. ¶ 59). This is absurd and nowhere 11 near the requisite level of control. Such behavior could be considered lewd, indecent, or possibly 12 disorderly conduct. To suggest that Sachs is required to compensate its workers for travel time on 13 the Access Road based in part on Sachs’s extremely proper and reasonable rule that workers could 14 not urinate freely wherever they wished is simply preposterous. 15 b. Sachs’s General Workplace Rules as applied to Travel on the Access Road 16 The Court next turns to Sachs’s general workplace rules. Sachs contends that all travel on 17 an employer’s premises before/after work “entails some level of control,” and that an employee is 18 not entitled to compensation simply because she “must obey many rules while on the premises.” 19 See Sachs’s Motion at 15. Sachs argues that employers may generally enforce such rules as “no 20 smoking, no littering, no loitering, no talking to customers, no carrying weapons, no eating or 21 drinking, no sleeping, no pets, and no disruptive noises” over employees traveling on the property 22 before/after work without giving rise to compensable travel time. See id. at 15, 16. Plaintiff 23 counters that Sachs’s rules were “strict,” and that Sachs’s rules constituted “substantial control” in 24 a variety of ways. See Plaintiff’s Memorandum at 1–2, ECF 57-1; Plaintiff’s Opp’n at 6–9 25 (reciting Sachs’s workplace rules). As discussed below, the Court finds that Sachs’s general 26 workplace rules that applied to Plaintiff’s travel on the Access Road did not subject Plaintiff “to 27 the control” by Sachs within the meaning of “hours worked” under Wage Order 16. 28 First, Plaintiff argues that “workers were [] under Sachs’s control” at the beginning and 24 United States District Court Northern District of California 1 end of the workday because they were required to badge-in and badge-out at the Security Gate. 2 See Plaintiff’s Opp’n at 17–18. In support, Plaintiff cites Cervantez v. Celestica Corp., 618 F. 3 Supp. 2d 1208, 1216 (C.D. Cal. 2009) for the proposition that “time spent going through security 4 screening constitute[s] hours worked under California law.” See Plaintiff’s Opp’n at 17. Sachs 5 responds that Cervantez involved a “[physical] search” that required employees to “proceed to a 6 certain area” that is “wholly absent in [the instant action].” See Sachs’s Reply at 12. The Court 7 agrees that Cervantez is inapposite. In Cervantez, the security screening at issue was “akin to 8 screenings at an airport” to which all employees had to submit. See Frlekin v. Apple Inc., 9 2015 WL 6851424, at *6 (N.D. Cal. Nov. 7, 2015) (citing Cervantez, 618 F. Supp. 2d at 1216). 10 Here, by contrast, personnel at the Security Gate did not screen employees or their belongings in 11 such a manner. Instead, workers traveling by car presented their badges at the guard shack to gain 12 entry through the Security Gate. See Griffin Depo. at 34:11–24. Whether driving or riding, 13 workers were not required to exit the car, but simply held up their badges for scanning by the 14 person(s) staffing the guard shack. See id. at 37:1–16; 40:13–22; 42:23–43:14. This process is 15 analogous to scanning or flashing an employee badge to enter a compound or campus, and unlike 16 the airport-like screening in Cervantez that applied to all employees. Accordingly, Plaintiff’s time 17 spent badging-in and badging-out at the Security Gate does not equate to control. 18 Plaintiff further argues the security setup required him at times “to sit in [his] vehicle[] in a 19 line outside the Security Gate [] for approximately 10 to 20 minutes or more waiting for the sun to 20 come up and for the Security Gate [] to be opened” and that “[t]he same kind of line and wait 21 would almost always happen . . . at the end of the day.” See Plaintiff’s Opp’n at 4 (citing Griffin 22 Decl. ¶ 24). Sachs counters that such time in line is the result of “[an] interaction [] strictly for the 23 purposes of ingress and egress, and does not involve any interaction with the employer that is 24 anywhere near the interaction during a bag check or other inspection.” See Sachs’s Reply at 12. 25 The Court finds that Plaintiff’s wait time of approximately 10 to 20 minutes to get through the 26 Security Gate due to congestion at the beginning and end of the day does not amount to control. It 27 is undisputed that Plaintiff and his fellow workers underwent no special screening or security 28 check upon entry or exit. Thus, Plaintiff’s “wait time” is equivalent to a normal bottleneck 25 1 entering/exiting parking lots on an employer’s premises around the time shifts begin/end and not 2 an employer-controlled body screening. Cf. Pelz v. Abercrombie and Fitch Stores, Inc., 2015 WL 3 12712298, at *1–2 (N.D. Cal. June 4, 2015) (denying defendant’s motion for partial summary 4 judgment where the waiting time at issue involved an actual bag check before the employees were 5 permitted to leave). Nor is Sachs’s rule that workers were required to carry their employee badge 6 on their person from the time they entered the Security Gate to the time they exited, see Griffin 7 Decl. ¶ 20, relevant here. Such a requirement is far too inconsequential to impact the Court’s 8 control analysis. United States District Court Northern District of California 9 Second, Plaintiff argues that he was subject to additional general workplace rules while 10 traveling on the Access Road that equate to control, including the following: “safety and personal 11 protective equipment rules, discrimination rules, anti-harassment rules, environmental rules, 12 alcohol and drug policies, rules related to being subject to searches for alcohol [and] drugs, no 13 practical jokes, no horseplay rules, no gambling rules, no photography, [and] no loud music.” See 14 Griffin Decl. ¶ 32. Plaintiff also notes that no firearms were permitted on the Project site. See 15 Plaintiff’s Opp’n at 8; Jimenez Decl. ¶ 39, ECF 50-4. On the other hand, Sachs contends these 16 rules are “common sense” restrictions akin to rules governing traveling to and from work in other 17 highly regulated environments such as airports, zoos, and hospitals. See Sachs’s Motion at 17. 18 For example, Sachs argues that an airport gate agent is subject to “the complex and far-reaching 19 rules of [the] airport” long before clocking in and starting work at a given location. See id. In 20 addition, Sachs argues that its workplace rules are only “prohibitory,” and thus did not mandate 21 Plaintiff “to do anything,” analogous to restrictions on virtually every employer’s premises that 22 employees must respect even when not getting paid. See id. at 18–19. 23 The Court agrees with Sachs that these general workplace rules are all prohibitory in nature 24 and not fundamentally different from typical restrictions that apply on an employer’s premises 25 during travel from the parking lot to the workplace, with the possible exception of “safety and 26 personal protective equipment rules” (which are addressed in the subsequent paragraph). In other 27 words, these are standard prohibitions common to many work campuses or premises that 28 reasonably foreclose activities that may be illegal or unsafe in that setting. It is illogical that an 26 1 employee would be subject to the control of her employer within the meaning of the IWC wage 2 orders because she cannot gamble or possess firearms while commuting between the entrance to 3 the campus and the parking lot. Put differently, these general workplace rules do not equate to 4 control within the meaning of “hours worked” because they simply reflect standard workplace 5 requirements not directed to “determining when, where, and how plaintiffs must travel,” see 6 Morillion, 22 Cal. 4th at 586. United States District Court Northern District of California 7 With respect to “safety and personal protective equipment rules,” Sachs acknowledges that 8 “[a] rule . . . requiring employees to don protective gear before entering the plant at the start of a 9 shift can certainly start the work day.” See Sachs’s Motion at 18. However, in opposing 10 Plaintiff’s motion for partial summary judgment, Sachs states that “workers did not have to wear 11 PPE [personal protective equipment] in their cars.” See Sachs’s Opp’n at 21, ECF 63. Based on 12 the evidence submitted by Plaintiff, the Court agrees. Plaintiff states that personal protective 13 equipment “PPE” rules applied on the Project site, see Plaintiff’s Memorandum at 6 (citing Griffin 14 Decl. ¶ 32), but admits that the instruction around the Security Gate entrance was only a 15 warning—“[b]e prepared to wear PPE [] beyond this point,” see Plaintiff’s Memorandum at 9 n.4 16 (citing and quoting Jimenez Decl. ¶ 39, among other declarations). The Court has reviewed the 17 cited testimony and finds no evidence that workers were required to wear PPE during normal 18 travel between the Security Gate and the parking lots. If anything, Plaintiff tacitly admits that no 19 such requirement existed. In sum, the Court finds that no reasonable jury could infer that workers 20 were required to wear PPE within cars or buses during daily roundtrip travel on the Access Road. 21 Accordingly, the “safety and personal protective equipment rules” do not demonstrate control over 22 Plaintiff’s travel or initiate the workday at the Security Gate, and no genuine dispute of material 23 fact exists as to any PPE requirement, see Corales v. Bennett, 567 F.3d 554, 562 (9th Cir. 2009). 24 Third, Plaintiff argues that Plaintiff and his fellow workers “were not allowed to leave the 25 premises [the Project site] from 7:00 a.m. to 5:30 p.m. without permission.” See Plaintiff’s Reply 26 at 1, ECF 64. In a nutshell, as discussed at the Hearing, this boils down to whether an employee 27 needed permission to leave the Access Road separate and apart from the permission required to 28 leave work once the shift ended (i.e. after the buggy ride). 27 United States District Court Northern District of California 1 In support of his theory that workers needed separate permission to leave the Access Road, 2 Plaintiff cites Sachs’s “Standard Job Work Rules,” which state “[t]he standard work day begins at 3 7:00 [a.m.] and ends at 5:30 [p.m.].” See Standard Job Work Rules § 6, Ex. 1 to Griffin Decl., 4 ECF 50-2. At the Hearing, Plaintiff argued that the time period from 7:00 a.m. to 5:30 p.m. 5 includes Plaintiff’s “commute time” and therefore the restrictions of the “standard work day”— 6 which include not leaving without permission—apply to Plaintiff’s travel on the Access Road. 7 See Hearing Tr. at 24:15–25:22; see also Standard Job Work Rules §§ 5, 6. Sachs counters that 8 “the CBA sets forth a regularly recurring eight hour work day, starting after [Plaintiff’s] [d]rive 9 and ending before [Plaintiff’s] [return] [d]rive.” See Sachs’s Reply at 14. In other words, Sachs 10 argues that no individual employee’s standard work day could have been 10.5 hours (7:00 a.m. to 11 5:30 p.m.), but rather eight hours as provided by the CBA. See Sachs’s Motion at 22; Rega 12 Decl. ¶ 12. 13 The Court agrees with Sachs that a given individual’s standard work day was defined by 14 the CBA, and thus not the 10.5 hours that Plaintiff claims. Plaintiff’s testimony makes clear that 15 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 16 [a.m.] is my starting time . . . . [when we would] jump in the buggies and head off to work.”). 17 This is consistent with the CBA, which provides “[e]ight [] hours shall constitute a days work 18 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 19 CBA § 3.01(a), Ex. D to Rega Decl., ECF 40-5. Although the Standard Job Work Rules generally 20 define the “standard work day” as 7:00 a.m. to 5:30 p.m., they further specify that individual 21 employees need only be “ready to work at their designated starting time, and shall remain at work 22 until their regular quitting time.” See Standard Job Work Rules § 6. These standard work times 23 are set forth by the CBA. Accordingly, a given individual’s work day did not encompass all 10.5 24 hours of the “standard work day” recited by the Standard Job Work Rules. 25 Plaintiff argues that nonetheless he was under Sachs’s control on the Access Road because 26 “[w]orkers were told that they were required to stay on the job site during the entire workday from 27 the beginning of the workday to the end of the workday.” See Plaintiff’s Opp’n at 15 (citing 28 Griffin Decl. ¶ 64). Although somewhat unclear, Plaintiff’s theory appears to be that Sachs’s use 28 United States District Court Northern District of California 1 of “job site” in this context meant “Project site” and that therefore Plaintiff could not leave the 2 Access Road without permission under the Standard Job Work Rules, see Plaintiff’s Reply at 1–2; 3 Plaintiff’s Opp’n at 14–15 (citing the Standard Job Work Rules). In any event, this theory is 4 directly contradicted by the Standard Job Work Rules themselves, which define “Jobsite Access” 5 in relation to commuting from a parking lot. See Standard Job Work Rules § 1. Thus, the 6 “jobsite” under the Standard Job Work Rules is necessarily set off from the parking lot. This is 7 consistent with the definition of “Work Area,” which describes work-related activities in the 8 “assigned work areas [or] workplace or jobsite” under the direction of a supervisor. See Standard 9 Job Work Rules § 5. Plaintiff submits no evidence that supervisors were present or controlled or 10 directed workers’ travel on the Access Road. Accordingly, the rule that employees “may be 11 subject to disciplinary action” for “leav[ing] their assigned work areas [or] the workplace or 12 jobsite without a supervisor’s authorization” found in the Standard Job Work Rules, see id. § 5, 13 does not apply to travel on the Access Road. 14 Next, Plaintiff argues that he was under Sachs’s control while traveling on the Access 15 Road because “[w]e were told [by Defendants] that it would a violation of the job site rules if we 16 reach the Security Gate [] too early at the end of the workday and that we could be suspended or 17 terminated if we violated that rule.” Griffin Decl. ¶ 64; Plaintiff’s Opp’n at 15. This is a version 18 of Plaintiff’s argument that workers “were not allowed to leave the premises [the Project site] [] 19 without permission.” See Plaintiff’s Reply at 1. Here too, Sachs responds that no such permission 20 was required to leave the Access Road. See Sachs’s Reply at 13; Hearing Tr. at 37:4–9 (Sachs 21 arguing that “there’s no evidence that after their shift is over, [the employees] couldn’t leave [or] 22 proceed” to exit the Security Gate without ramification). Indeed, the evidence reveals no such 23 requirement, but instead that permission to arrive to the assigned work place “late” or to “leave 24 early” is defined in relation to the “assigned work place” itself, not travel on the Access Road. See 25 Standard Job Work Rules § 6. In point of fact, Plaintiff acknowledged at the Hearing that 26 “[t]here’s no evidence” that employees lacked the authority to enter the Security Gate, travel 27 halfway to the parking lot, and then turn around and leave. See Hearing Tr. at 24:23–25:8. Put 28 differently, an employee could enter through the Security Gate, drive for a period of time in the 29 United States District Court Northern District of California 1 direction of the parking lot, realize that an urgent personal matter required her attention, turn 2 around on the Access Road and depart through the Security Gate, and face discipline only if she 3 failed to inform Sachs that she could not make it to her assigned work place. I.e., the employee 4 would not need to separately seek permission before turning around on the Access Road and 5 exiting through the Security Gate. See Hearing Tr. at 24:23–25:8. 6 Plaintiff submits declarations in support of his argument that workers could be terminated 7 or disciplined for traveling on the Access Road “too early” after their shifts ended, see Plaintiff’s 8 Opp’n at 4; see also Plaintiff’s References to the Record at 2–6 (citing and quoting Richmond 9 Decl. ¶¶ 33, 34, 44; E. Manhart Decl. ¶¶ 17, 25, 34, 66; K. Manhart Decl. ¶¶ 19, 28, 69; Griffin 10 Decl. ¶¶ 17, 26, 64; Jimenez Decl. ¶¶ 19, 27, 70; and Bundren Decl. ¶¶ 19, 28, 71), ECF 105. 11 However, the Court finds that these declarations are mere speculation on this topic, as Sachs 12 argued at the Hearing. See, e.g., Hearing Tr. at 33:11–18; see also Sachs’s Reply at 10–11. As a 13 representative example, the testimony is essentially that “Sachs and McCarthy would let guys 14 leave the [parking] lot but then would terminate them for getting to the Security Gate [] too early.” 15 See Richmond Decl. ¶ 44, ECF 50-7. Yet, none of the six declarants alleges facing discipline or 16 termination for arriving at the Security Gate “too early,” and none of the six declarants names 17 even a single worker who was subject to discipline or termination on these grounds. The only 18 declarant who makes even a remotely definitive statement is Mr. Richmond (a former Sachs 19 wireman and foreman)—and Mr. Richmond relies on what an unnamed person told him had 20 happened to unnamed workers. See Richmond Decl. ¶ 44. Although the Court reviews the 21 evidence in the light most favorable to the non-moving party, “[t]he mere existence of 22 a scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be 23 evidence on which the jury could reasonably find for the plaintiff.” Anderson v. Liberty Lobby, 24 Inc., 477 U.S. 242, 252 (1986). The law is clear that unsupported and conclusory claims are 25 insufficient to stave off summary judgment. See Hernandez v. Spacelabs Med. Inc., 343 F.3d 26 1107, 1112 (9th Cir. 2003) (a nonmoving party “cannot defeat summary judgment with allegations 27 in [its] complaint, or with unsupported conjecture or conclusory statements.”). Here, Plaintiff has 28 submitted nothing beyond conjecture and speculation in support of his argument that workers 30 1 2 In sum, the Court finds that Sachs’s general workplace rules that applied to Plaintiff’s 3 travel time on the Access Road do not equate to control within the meaning of “hours worked” 4 under Wage Order 16. 5 6 United States District Court Northern District of California could be terminated for arriving at the Security Gate “too early” after shifts end. c. Totality of the Circumstances Finally, the Court considers the rules of the Access Road and the general workplace rules 7 taken as a whole. In this action, Plaintiff was required to travel on a single accessway to his 8 parking lot and abide by various rules of the road once on the premises, including reduced speed 9 limits, limited or no cell phone use, and no loud music. See supra Section I.B. Plaintiff entered 10 and exited the premises via a single Security Gate at which he was not required to leave his 11 vehicle but was required to present his badge for scanning by security staff. See id. During travel, 12 Plaintiff was also subject to general rules of the workplace, including anti-harassment rules, no 13 photography, alcohol and drug policies, no firearms, and no smoking. See id. In addition, 14 Plaintiff was not permitted to disturb local wildlife or cattle and was required to be off the 15 premises between sunset and sunrise. Id. 16 Plaintiff argues that therefore he was “under the control of [Defendants] because of all of 17 the job site rules to which [he] w[as] subjected” from the time “that Plaintiff entered the Security 18 Gate [] in the morning until he exited the Security Gate [] at the end of the day.” See Plaintiff’s 19 Memorandum at 6. Meanwhile, Sachs contends that “[t]he rules cited by Plaintiff do not ‘control’ 20 him and entitle him to compensation [for his travel time on the Access Road]” because the rules 21 amount only to “rules and a code of conduct” typical “[w]henever employees are on their 22 employer’s premises.” See Sachs’s Motion at 10. Sachs further contends that the instant action is 23 unlike Morillion and Rutti, where “the level [was] total control,” see Sachs’s Reply at 10 (citing 24 and quoting Rutti v. Lojack Corp., 596 F.3d 1046, 1062 (9th Cir. 2010)). 25 The parties have cross-moved for summary judgment; i.e., the parties submit this issue to 26 the Court for judgment as a matter of law. Considering the rules as a whole (as limited by the 27 Court’s preceding discussion), the result is no different than the Court’s preceding individual 28 analysis of the rules of the Access Road and the general workplace rules, respectively. At bottom, 31 United States District Court Northern District of California 1 Plaintiff was free on a daily basis to drive his own vehicle to work, carpool with other workers, 2 ride an employer-provided bus to work from a multi-county area, or take employer-provided 3 transportation from the Security Gate to the parking lot. By comparison, Plaintiff was not 4 controlled to the extent the employer in Rutti curtailed its employee’s rights by mandating “[use 5 of] the company vehicle, [no] personal errands, [and no] passengers . . . from home to his job and 6 back.” 596 F.3d at 1061. Nor did the rules limit Plaintiff’s rights during travel on the Access 7 Road to the extent the employer in Morillion constrained its employees’ rights by “directing and 8 commanding . . . travel . . . on [the employer’s] buses.” 22 Cal. 4th at 587. That Plaintiff was 9 required to travel at slow speeds and obey other rules of the Access Road while simultaneously 10 abiding by Sachs’s general workplace rules does not sufficiently distinguish Plaintiff’s travel time 11 on the Access Road from ordinary travel in a personal vehicle from a security entrance to a 12 parking lot within any employer’s secure campus or premises. 13 In conclusion, the Court finds no genuine dispute of material fact as to the level of control 14 exercised by Sachs over Plaintiff’s travel on the Access Road and that Plaintiff’s travel time on the 15 Access Road does not constitute “hours worked” under Wage Order 16 and California law. 16 17 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 18 19 20 21 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 22 below, the Court agrees with Sachs. 23 Paragraph 5(A) of Wage Order 16 provides: 24 25 26 27 28 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 32 1 “[t]his section shall apply to any employees covered by a valid collective bargaining agreement 2 unless the collective bargaining agreement expressly provides otherwise.” Wage Order 3 16 ¶ 5(D) (emphasis added); see also Sachs’s Motion at 22. Sachs thus argues that Plaintiff is 4 barred from obtaining compensation under paragraph 5(A) of Wage Order 16 because “the 5 [parties’] CBA expressly provides for compensation only after reporting to a location between 6 8:00 a.m. (reporting time at the parking) and 4:30 p.m. (employees’ arrival at the parking lot after 7 work).” See Sachs’s Motion at 22. Plaintiff responds that “[t]he CBA nowhere even mentions 8 paragraph 5 of the Wage Order, let alone ‘expressly provide’ that paragraph 5 does not apply.” 9 See Plaintiff’s Opp’n at 21. United States District Court Northern District of California 10 The Court agrees with Plaintiff that the CBA does not preclude Plaintiff’s request for 11 compensation pursuant to paragraph 5 of Wage Order 16. Burnside v. Kiewit Pacific Corp., 491 12 F.3d 1053 (9th Cir. 2007) is instructive. In Burnside, the Ninth Circuit held that “the right to be 13 compensated for employer-mandated travel exists as a matter of state law, independent of [] 14 CBAs.” 491 F.3d at 1061. The Ninth Circuit went on to analyze paragraph 5 of Wage Order 16 15 and ruled that “if the [operative] CBA says nothing at all about pay for travel time, the right to be 16 paid for that time still exists.” Burnside, 491 F.3d at 1064. In other words, the CBA must make 17 an “express waiver, as contemplated by section 5(D) of Wage Order 16” to preempt “the right 18 codified in section 5(A).” Id. at 1071. Here, as pointed out by Plaintiff, the parties’ CBA is silent 19 as to compensation for travel time. See generally CBA, Ex. D to Rega Decl., ECF 40-5; see also 20 Plaintiff’s Opp’n at 22. The CBA’s description of the work day and workweek, see CBA § 3.01, 21 is simply not an express waiver of Plaintiff’s underlying state law right to be compensated for 22 employer mandated travel, see Burnside, 491 F.3d at 1061, 1064, 1071. Thus, the CBA does not 23 bar compensation under paragraph 5 of Wage Order 16. 24 However, the Court finds that Plaintiff’s brief stop at the guard shack to enable scanning of 25 his badge was not a “location where the employee’s presence is required” within the meaning of 26 Wage Order 16 ¶ 5(A). In the instant action, Plaintiff and fellow workers traveling by car were 27 required to present their badges at the guard shack in order to enter through the Security Gate. See 28 Griffin Depo. at 34:11–24. But, whether driving or riding, workers were not required to exit the 33 United States District Court Northern District of California 1 car—they simply held up their badges for scanning by the person(s) manning the guard shack. See 2 id. at 37:1–16; 40:13–22; 42:23–43:14. This obligation is no different than that of any employee 3 who enters a work campus or premises that requires scanning an employee badge to gain access. 4 In the only case cited by Plaintiff in support of his paragraph 5(A) theory, the first location was “a 5 designated site . . . [at which] [the employer’s] managers instructed the employees on the day’s 6 tasks and had them retrieve equipment” before “travel[ing] in company vans or pickup trucks.” 7 Burnside, 491 F.3d at 1056. Although the Burnside court did not rule whether these requirements 8 constituted “the first location where the employee’s presence [was] required,” see Wage 9 Order 16 ¶ 5(A); Burnside, 491 F.3d at 1070, the requirements are nonetheless indicative of what 10 facts might rise to that level. By contrast, here, Plaintiff drove his own vehicle, did not exit his 11 vehicle, and simply presented his badge for scanning. It is simply illogical that merely scanning a 12 badge to gain access triggers the right to compensation under Wage Order 16. If so, a massive 13 swath of squarely non-compensable walking or commute time from the first “badge” checkpoint 14 of a given work location would be covered by paragraph 5(A). 15 In sum, the Court finds that as a matter of law, Plaintiff’s pass through the Security Gate 16 was not “the first location where Plaintiff’s presence was required” and that Plaintiff is not entitled 17 to compensation for his travel time on the Access Road under Wage Order 16 ¶ 5(A). 18 19 4. Conclusion The Court finds that Plaintiff’s travel time on the Access Road is not compensable under 20 Wage Order 16 and California law. Accordingly, Sachs’s motion for summary judgment of no 21 liability under Plaintiff’s first cause of action is GRANTED and Plaintiff’s cross-motion for 22 summary judgment of liability is DENIED. Plaintiff’s Remaining Class Claims 23 B. 24 Sachs moves for summary judgment that Plaintiff’s remaining class claims against Sachs 25 fail as a matter of law because they are entirely derivative of Plaintiff’s first cause of action. See 26 Sachs’s Motion at 2; Sachs’s Renotice of Motion at 2. The Court is unable to identify any 27 opposition by Plaintiff to Sachs’s motion for summary judgment on this issue. Moreover, the 28 Court agrees that Plaintiff’s remaining class claims (claims 2 through 6 of the Consolidated 34 United States District Court Northern District of California 1 Complaint) are entirely derivative of claim 1. Accordingly, having granted summary judgment in 2 Sachs’s favor with respect to claim 1, the Court hereby GRANTS summary judgment in Sachs’s 3 favor with respect to the remaining class claims. Plaintiff’s Individual Claims 4 C. 5 Plaintiff alleges three individual causes of action: Fair Employment and Housing Act 6 (“FEHA”) violation under California Government Code § 12940; intentional infliction of 7 emotional distress; and wrongful termination in violation of California public policy. See Claims 8 7 to 9, Consol. Compl. ¶¶ 81–110, ECF 51. These individual claims are brought against Sachs 9 only. Plaintiff is African American and alleges that he “was mistreated because of his race” and 10 that he “was treated differently than other workers who were not African American.” See id. 11 ¶¶ 83, 84. In addition, Plaintiff alleges that he “questioned [Sachs’s] failure to pay employees for 12 all time worked . . . . [including] from the point at which they badged in at the security entrance.” 13 Id. ¶ 107. Plaintiff hypothesizes that “[Sachs] terminated Plaintiff because of his race or because 14 he had complained about [Sachs’s] wrongful conduct.” Id. ¶ 108. Sachs moves for summary judgment as to all three individual claims on the basis that 15 16 Sachs had legitimate and non-discriminatory grounds to terminate Plaintiff. See Sachs’s Motion 17 at 2; Sachs’s Renotice of Motion at 2. Specifically, Sachs argues that “Plaintiff has no evidence 18 that he was treated any differently because [of his race]” and that “[e]ven assuming that Plaintiff 19 can make a prima facie case, Sachs is able to satisfy its burden of producing evidence that it 20 terminated Plaintiff for a legitimate, non-discriminatory reason.” See Sachs’s Motion at 22, 23. 21 Sachs walks through the McDonnell Douglas6 burden-shifting framework that applies to FEHA 22 claims and presents evidence pertaining to Sachs’s “legitimate, non-discriminatory reason for 23 [terminating Plaintiff].” See Sachs’s Motion at 23–24. In addition, Sachs discusses the purported 24 absence of evidence that “is specific or substantial to demonstrate that Sachs[’s] proffered 25 termination reason was a pretext for discrimination.” See id. at 24–25. Plaintiff worked for Sachs on the Project from approximately November 20, 2016 to 26 27 28 6 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). 35 United States District Court Northern District of California 1 March 3, 2017. See Griffin Decl. ¶ 3, ECF 50-2. Sachs’s evidence shows that Plaintiff received a 2 written warning on December 13, 2016, citing failure to follow instructions and improper conduct, 3 including “yelling back to foreman.” See Warning Letter, Ex. E to Rega Decl., ECF 40-5; Rega 4 Decl. ¶ 14; Griffin Depo. at 131:8–22. The Warning Letter stated that “[m]oving forward 5 [Plaintiff] has been placed in another crew.” See Warning Letter. Plaintiff signed this warning 6 letter, acknowledging that he had “read this warning and agree to correct the situation . . . . [and] 7 understand that future violations may be cause for discharge.” See id. Plaintiff subsequently was 8 absent from work multiple times in early 2017, only working about half of the shifts he was 9 scheduled to work in the first quarter of 2017. See Rega Decl. ¶ 15; Kinloch Decl. ¶ 8. Plaintiff 10 missed work on January 2, January 17, February 23, March 1, and March 2, and only appeared for 11 work for a total of seven days in the first quarter of 2017. See id.; Griffin Payroll Records, Ex. F 12 to Rega Decl., ECF 40-5. On March 3, 2017, Plaintiff received another written warning, citing 13 failure to follow instructions, insubordination, leaving job without permission, and poor 14 productivity. See Rega Decl. ¶ 17; Second Warning Letter, Ex. H to Rega Decl., ECF 40-5. 15 Plaintiff refused to sign this warning letter. See id. The same day, Plaintiff was given notice of 16 termination due to “absenteeism” and “refus[al] to work as directed.” See Rega Decl. ¶ 18; Notice 17 of Termination, Ex. I to Rega Decl., ECF 40-5. 18 The Court finds this evidence more than sufficient to satisfy Sachs’s burden of producing 19 evidence establishing a legitimate, non-discriminatory reason for terminating Plaintiff. See 20 Merrick v. Hilton Worldwide, Inc., 867 F.3d 1139, 1145–46 (9th Cir. 2017). Therefore, the 21 burden shifts to Plaintiff, who “must raise a triable issue suggesting that the employer’s proffered 22 reason is mere pretext for unlawful discrimination, or offer other evidence of discriminatory 23 motive.” See id. at 1146. 24 Plaintiff has utterly failed to make such a showing. In response to Sachs’s motion for 25 summary judgment on his individual claims, Plaintiff submits exactly one paragraph—a total of 26 eight lines—in opposition. See Plaintiff’s Opp’n at 25. Within these eight lines, Plaintiff makes 27 the conclusory argument that “Plaintiff’s evidence demonstrates that the reasons for his 28 termination were pretextual and in fact false” without any discussion whatsoever of the evidence. 36 United States District Court Northern District of California 1 See id. Instead, Plaintiff makes a single citation to 89 paragraphs of his declaration—which in 2 total run over 17 pages—without discussing any of the content. See Plaintiff’s Opp’n at 25 (citing 3 Griffin Decl. ¶¶ 74 –162). On summary judgment, “[w]hether the evidence is attached or not, 4 Rule 56(e) requires that the adverse party’s ‘response,’ not just the adverse party’s various other 5 papers, ‘set forth specific facts’ establishing a genuine issue.” Carmen v. S.F. Unified Sch. Dist., 6 237 F.3d 1026, 1031 (9th Cir. 2001) (citing Fed. R. Civ. P. 56(e)). In other words, “[t]he gist of a 7 summary judgment motion is to require the adverse party to show that it has a claim or defense, 8 and has evidence sufficient to allow a jury to find in its favor on that claim or defense.” See id. 9 Only if the “opposition sets it out, [does] the movant ha[ve] a fair chance in its reply papers to 10 show why the respondent’s evidence fails to establish a genuine issue of material fact.” See id.; 11 see also Desilva v. DiLeonardi, 181 F.3d 865, 867 (7th Cir. 1999) (“A brief must make all 12 arguments accessible to the judges, rather than ask them to play archaeologist with the record.”). 13 Applying these principles to Plaintiff’s eight lines of opposition, Plaintiff is left with only 14 the single assertion that “Plaintiff complained about Sachs[’s] pay practices only days before he 15 was fired.” See Plaintiff’s Opp’n at 25. But, Plaintiff fails to provide citation or evidentiary 16 support for even this single assertion. 17 In sum, Plaintiff’s opposition to Sachs’s motion for summary judgment as to Plaintiff’s 18 individual claims is wholly insubstantial to establish pretext or raise a genuine issue of material 19 fact as to any of the claims. Accordingly, the Court hereby GRANTS summary judgment in 20 Sachs’s favor with respect to Plaintiff’s individual claims. 21 // 22 // 23 // 24 // 25 // 26 // 27 // 28 // 37 1 V. ORDER 2 For the foregoing reasons, IT IS HEREBY ORDERED that: 3 1. Sachs’s motion for summary judgment as to Plaintiff’s first cause of action for failure 4 to pay compensation for travel time is GRANTED and Plaintiff’s cross-motion for 5 summary judgment of liability on the same issue is DENIED. 6 2. Sachs’s motion for summary judgment that Plaintiff’s remaining class claims (claims 2 7 through 6 of the Consolidated Complaint) are entirely derivative of claim 1 and 8 therefore fail as a matter of law alongside claim 1 is GRANTED. 9 10 3. Sachs’s motion for summary judgment as to Plaintiff’s individual claims (claims 7 through 9 of the Consolidated Complaint) is GRANTED. United States District Court Northern District of California 11 12 13 14 15 IT IS SO ORDERED. Dated: May 28, 2019 ______________________________________ BETH LABSON FREEMAN United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 38

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