United States District Court, D. New Mexico
JOSEPH SERNA, SANTANA BUSTAMANTE, GABRIEL M. BLEA, RONNIE CARILLO, JR., ALIFONSO DELEON, GERMAN JACQUEZ-TORRES, GUY J. JORDAN, DAVID WAYNE JOURDAN, ADELINE MARTINEZ, ANTHONY MARTINEZ, CHRISTOPHER M. MARTINEZ, ROMAN MARTINEZ, KENNETH MERCURE, LEA PACHECO, ELIZABETH RAMIREZ, ROSE RASCON, and CHRIS VALDEZ, on behalf of themselves and all others similarly situated, Plaintiffs,
BOARD OF COUNTY COMMISSIONERS OF RIO ARRIBA COUNTY, Defendant.
MEMORANDUM OPINION AND ORDER
C. BRACK, SENIOR U.S. DISTRICT JUDGE.
an employment case involving detention workers at a prison.
The workers have sued their employer, the Board of County
Commissioners of Rio Arriba County (County), accusing the
County of not paying them for time worked. The County
disputes the workers' claims and has filed a motion for
partial summary judgment. (Doc. 44.) For the reasons set
forth below, the Court grants in part and denies in
part the County's motion.
their response to the summary judgment motion, the workers
seek to amend their complaint. The Court
denies the workers' request.
Additionally, the Court will allow the workers another
opportunity to respond to some of the County's arguments
by August 20, 2018, as described in the Opinion.
are detention recruits, detention officers, and detention
supervisors (collectively, “Correctional
Officers” or “Workers”) employed by the Rio
Arriba County Detention Center. (Doc. 44 at 2.) Their duties
involve ensuring the secure and orderly detention of inmates
at the detention facility. (See id.) To perform
their duties at the detention center, which is always
staffed, the Correctional Officers usually work 12-hour
shifts from 8:00 a.m. to 8:00 p.m. or 8:00 p.m. to 8:00 a.m.
15 minutes prior to their shifts, Correctional Officers are
required to report to work. (See Docs. 64-A at 2;
64-B at 2; 64-C at 2; 64-D at 2; 64-E at 2 (affidavits from
Correctional Officers testifying about the requirement to
arrive 15 minutes early).) During this time, incoming and
outgoing supervisors conduct a shift-change headcount and
briefing. (See Doc. 65 at 5-6.) The incoming
supervisor then heads to the muster room-the non-secure area
of the facility-where incoming detention recruits and
officers are waiting, and conducts a group briefing about the
upcoming shift. (Id. at 6.) The group briefing
conveys information such as the inmates who need to be
prepared for court, inmates on suicide or medical watch,
inmates who had been disruptive during the previous shift,
upcoming visits from law enforcement, and mechanical issues
with the facility. (Id.)
the group briefing, individual officers and recruits head to
their respective posts and conduct a post-specific briefing
with their outgoing counterparts. (Id. at 7.) The
post-specific briefing includes information such as the
inmates who need recreational time or who need to be released
for work details during the upcoming shift. (Id.)
Until the post-specific briefing is complete, the outgoing
detention recruit or officer may not leave his post-so if the
post-specific briefing started or ran late, the outgoing
employee would be conducting the briefing outside of his
scheduled hours. (Id.) Despite the pre- and
post-shift time Workers spend, the County only pays for time
worked during scheduled shifts. (Doc. 64 at 23.)
Correctional Officers sued the County for its employment
practices, alleging violations of New Mexico and federal
employment laws. (Doc. 1 at 4.) Among other things, the
Correctional Officers argue that they were unfairly
compensated for their pre- and post-shift work and that the
County incorrectly calculated their compensatory time.
(See Id. at 2-4; Doc. 64 at 23.) The County seeks
partial summary judgment on the Correctional Officers'
claims. (Doc. 44 at 1.)
judgment is appropriate if the movant shows that there is no
genuine dispute as to any material fact and that the movant
is entitled to judgment as a matter of law. Fed.R.Civ.P.
56(a). Summary judgment is not appropriate, however, if there
are factual issues that “may reasonably be resolved in
favor of either party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986). In deciding whether
there are genuine factual issues, a court cannot weigh the
evidence, id. at 249, or judge the credibility of
witnesses, Fogarty v. Gallegos, 523 F.3d 1147, 1165
(10th Cir. 2008). Instead, the court must view the facts in
the light most favorable to the nonmoving party and resolve
all factual disputes and reasonable inferences in the
nonmoving party's favor. Cillo v. City of Greenwood
Vill., 739 F.3d 451, 461 (10th Cir. 2013).
Burden of Proof
passed the Fair Labor Standards Act (FLSA) to protect
vulnerable employees from “substandard wages and
excessive hours which endangered the national health and
well- being . . . .” See Brooklyn Sav. Bank v.
O'Neil, 324 U.S. 697, 706 (1945). Part of the
FLSA's regime for protecting employees is to facilitate
shorter workdays by requiring employers to pay increased,
overtime wages to employees who work overtime hours. See
Chavez v. City of Albuquerque, 630 F.3d 1300, 1304 (10th
Cir. 2011). To make possible enforcement of its terms, §
11 of the FLSA compels employers to “make, keep, and
preserve records” of their employees' “wages,
hours, and other conditions and practices of employment . . .
.” 29 U.S.C. § 211(c).
employer does not pay an employee adequate overtime wages,
the employee may sue for unpaid overtime compensation. In
such a suit, the burden of proof usually rests on the
plaintiff-employee to prove by a preponderance of the
evidence the number of hours worked and the amount of wages
owed for each pay period. See Anderson v. Mt. Clemens
Pottery Co., 328 U.S. 680, 686-87 (1946) (superseded by
statute on other grounds). But if the employer fails to keep
adequate records as required by § 11, then the
plaintiff-employee has a lower burden of proof: produce
evidence of the amount and extent of uncompensated overtime
work as a matter of “just and reasonable
inference.” Baker v. Barnard Const. Co., Inc.,
146 F.3d 1214, 1220 (10th Cir. 1998).
“just and reasonable inference” standard is
applicable in this case, as the evidence shows that the
County did not keep adequate employment records. The
County's timekeeping system registered an employee's
“actual” clock-in and clock-out time as well as
the “official” clock-in and clock-out time used
for paying wages. (See Doc. 64-A-2 at 1.) The
“actual” time registered often differed from the
“official” time. (See Id. at 6.) For
example, detention officer Santana Bustamante's
timesheets reflect that she actually clocked in at 7:29 p.m.
on September 21, 2015, but her official clock-in time showed
8:00 p.m. (Id.) Aside from the mismatched actual and
official times, the accuracy of the recorded actual time is
also in doubt. When Bustamante inspected the time-in and
time-out for November 26, 2017, the display on the timekeeper
showed Bustamante's time-in as 7:30 p.m. (Doc. 64-A-3.)
The timesheets produced in discovery, on the other hand, show
Bustamante's actual time-in as 7:27 p.m. and official
time-in as 8:00 p.m. (Doc. 64-A-2 at 19.) This means the time
displayed on the physical timekeeper differed from both the
actual and official time on the timesheets. Further,
Bustamante documented clocking in at 7:46 p.m. on December 9,
2017, (Docs. 64-A at 4; 64-A-6), but the timesheet shows
Bustamante's actual clock-in time as 8:00 p.m., (Doc.
64-A-2 at 19). Viewed in the light most favorable to the
Correctional Officers, a reasonable inference from the
evidence is that the County's timekeeping is inaccurate.
The Correctional Officers may thus estimate their hours
worked and unpaid compensation as a matter of just and
Computability of Time Worked and Wages Earned
law details what satisfies the just and reasonable inference
standard. In Mencia v. Allred, the Tenth Circuit
clarified that neither an expert nor an economics report is
necessary to establish a just and reasonable inference.
Mencia v. Allred, 808 F.3d 463, 473 (10th Cir.
2015). “[A]ll a fact-finder needs to calculate damages
is the hourly wage, the number of hours worked, and the
amount already paid.” Id. Because two people
had testified about the plaintiff's hours in
Mencia, the Tenth Circuit held that “there is
sufficient evidence in the record for a fact-finder to
estimate [the plaintiff's] hours.” See Id.
In Jimenez v. Board of County Commissioners of Hidalgo
County, the Tenth Circuit held that under “the
more lenient ‘just and reasonable inference'
standard of proof, ” testimony about the length of
pre-shift briefing was sufficient for a factfinder to
calculate how much overtime plaintiffs were owed. Jimenez
v. Bd. of Cty. Comm'rs of Hidalgo Cty., 697
Fed.Appx. 597, 599 n.2 (10th Cir. 2017). And another trial
court in this district has suggested that testimony enabling
a court to find “a consistent pattern of overtime
work” may be sufficient when coupled with other types
of evidence. Bustillos v. Bd. of Cty. Comm'rs of
Hidalgo Cty., No. CV 13-0971 JB/GBW, 2015 WL 7873813, at
*15 (D.N.M. Oct. 20, 2015), aff'd in part,
rev'd in part sub nom., Jimenez v. Bd. of
Cty. Comm'rs of Hidalgo Cty., 697 Fed.Appx. 597
(10th Cir. 2017) (citations omitted).