Metropolitan News-Enterprise


Friday, September 14, 2018


Page 1


Ninth Circuit:

Officers Failed to Show LAPD Policy Discouraging Overtime

Berzon Declares Standard for Deciding Decertification Motions Is Same as for Summary Judgments; Pronounces Ousted Plaintiffs Who Had Opted in to Have Standing to Appeal From Final Judgment


By a MetNews Staff Writer


The Ninth U.S. Court of Appeals yesterday affirmed a district court determination that there was no showing of an unwritten policy within the Los Angeles Police Department discouraging the claiming of overtime by officers, and thus no basis for a collective determination of wage-and-hour claims by about 2,500 officers.

In an opinion affirming a post-discovery decertification order in two cases brought under the Fair Labor Standards Act (“FLSA”), Judge Marsha S. Berzon announced the standard for determining motions for such orders: the same as in summary judgment proceedings, with no weighing of facts. She also proclaimed that opt-in plaintiffs do have a right to contest the decertification in an appeal from the final judgment.

Berzon said that under the standard being erected by the opinion, District Court Judge Andrew J. Guilford erred in weighing the competing factual contentions, but nonetheless reached the right result.

“[A] de novo review of the record reflects that the Officers failed, as a matter of law, to create a triable question of fact regarding the existence of a Department-wide policy or practice,” the circuit judge wrote. “In the absence of such a policy or practice, and in the absence of allegations of any other similarity of law or fact material to the disposition of the Officers claims, the Officers were not ‘similarly situated’ within the meaning of the FLSA.”

Two Actions Filed

The first of two actions was brought in 2004; there was a stipulation in 2006 to preliminary certification; by the end of 2007, more than 2,200 officers became opt-in plaintiffs. Another action was commenced in 2009, was related to the first action, and more than 150 officers joined it.

Following discovery, then-District Court Judge Gary A. Feess (now a mediator) in 2014 found that the plaintiffs were not similarly situated. He dismissed the officers who had opted in as plaintiffs, without prejudice to their right to pursue individual FLSA claims.

The cases proceeded to judgment as to the claims of the original plaintiffs, and the officers booted from the actions appealed.

Sole Justification

Explaining the affirmance, Berzon said:

“The key problem for the Officers in providing evidence of the Department-wide policy they allege is one of scale. That the policy is Department-wide is essential to the viability of the collective action, as it is the sole justification advanced for a Department-wide collective. Yet the evidence in the record is simply not probative of an unwritten overtime policy of that breadth.

“The Officers’ primary contention appears to be that there exists a kind of tacit policy that operates top-down, such that an inference may be drawn that the policy applies Department-wide. As the district court noted, however, the evidence the Officers have produced—a mass of individual declarations, mostly containing rote recitations of hours worked and bare assertions of a certain Department ‘culture’—has a fundamentally different focus. The Officers’ declarations speak of immediate supervisors at discrete worksites. And even then the evidence is not of a uniform practice from which one might infer direction from a higher level, but of variable practices variably applied. Critically, there is no evidence of any directives, incentives, conversations, emails, or actions (such as denials of promotions) by Department leadership that could have communicated to local supervisors, implicitly or otherwise, a uniform policy against reporting small amounts of overtime.”

Berzon noted that the motion for decertification was tantamount to a motion for partial summary judgment directed to the issue of whether a tacit department-wide policy discouraging overtime exists. Accordingly, she said, summary judgment standards must be applied, precluding the weighing of evidence.

Issue of Standing

With respect to the standing of the ousted opt-in plaintiffs to appeal, Berzon sided with the view of the Eleventh Circuit that standing does exist, rejecting the contrary posture of the Third Circuit.

She wrote:

“Whether opt-in plaintiffs can appeal a decertification order is a question of first impression in this circuit. The City raises several objections to appellate jurisdiction and to the Officers’ standing to appeal—that the opt-in plaintiffs are not ‘parties,’ that the decertification was interlocutory, and that the dismissal was without prejudice. None has merit.”

Every person who opts in to a collective action has the standing of a “party,” Berzon said, noting that from the moment the person joins the action, “there is no statutory distinction between the roles or nomenclature assigned to the original and opt-in plaintiffs.”

The decertification order was interlocutory, but it merged with the judgment, and was appealable when the judgment became final, she declared.

It did not matter, Berzon said, that the officers had the option of filing separate lawsuits.

“[W]hether a dismissed party to the action could litigate the same merits issue by filing a different case does not matter,” she wrote. “The judgment entered here plainly qualifies as final and so appealable.”

The case is Campbell v. City of Los Angeles, No. 15-56990.


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