Doris Miller v. the Regis Corporation , 359 F. App'x 783 ( 2009 )

FILED
NOT FOR PUBLICATION NOV 30 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DORIS MILLER, No. 08-56088
Plaintiff - Appellant, D.C. No. 2:07-cv-04587-GW-AJW
v.
MEMORANDUM *
THE REGIS CORPORATION; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Argued and Submitted November 6, 2009
Pasadena, California
Before: BRIGHT, ** BYBEE, and M. SMITH, Circuit Judges.
Plaintiff-Appellant Doris Miller appeals the district court’s grant of
summary judgment in favor of Defendants-Appellees Regis Corporation and
Supercuts Corporate Shops, Inc. (erroneously sued as Supercuts Corporate Stores,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9 TH C IR. R. 36-3.
** The Honorable Myron H. Bright, Senior United States Circuit Judge
for the Eighth Circuit, sitting by designation.
Inc.). As the facts and procedural history are familiar to the parties, we do not
recite them here except as necessary to explain our decision. This court has
jurisdiction under 28 U.S.C. § 1291. We review the district court’s application of
its local rules for an abuse of discretion, Prof’l Programs Group v. Dep’t of
Commerce, 29 F.3d 1349, 1353 (9th Cir. 1994), and we review de novo the grant
of summary judgment, Leever v. Carson City, 360 F.3d 1014, 1017 (9th Cir. 2004).
We affirm.
Plaintiff did not timely object to the district court’s ruling accepting
Defendants’ statement of material facts as admitted. As a result, Plaintiff has
waived her right to appeal that ruling. See Bias v. Moynihan, 508 F.3d 1212, 1224
(9th Cir. 2007) (ruling that plaintiff waived her right to appeal district court’s
admission of evidence on summary judgment). Nevertheless, because Plaintiff
failed to controvert Defendants’ statement of material facts by filing her own
statement of genuine issues, a declaration, or other written evidence, the district
court properly exercised its discretion under its local rules in deeming Defendants’
statement of material facts “admitted to exist without controversy.” C.D. C AL. R.
56-3. See also United States v. Warren, 601 F.2d 471, 474 (9th Cir. 1979) (per
curiam) (“Only in rare cases will we question the exercise of discretion in
connection with the application of local rules.”).
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The district court did not err in granting summary judgment to Defendants.
Plaintiff argues that Defendants’ compensation system violates California law
because it calculates employee overtime compensation by using a “regular rate of
pay” based on a 15-day pay period, rather than a single workweek. Because
Defendants moved for summary judgment, they had the initial burden of showing
the absence of a genuine issue of material fact as to whether their method of
calculating the regular rate of pay complies with California law. See Bhan v. NME
Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991). Defendants carried their
burden, submitting multiple declarations from their Director of Payroll explaining
in detail how the challenged compensation system complies with state law.
As a result, the burden shifted to Plaintiff. Bhan, 929 F.2d at 1409. To carry
her burden, Plaintiff was required to “produce specific evidence, through affidavits
or admissible discovery material, to show that the dispute exists” as to whether
Defendants’ method of calculating the regular rate of pay violates California law.
Id. (citing F ED. R. C IV. P. 56(e)). In opposition to Defendants’ motion for
summary judgment, Plaintiff submitted only unauthenticated copies of a few pay
stubs. But those pay stubs, standing alone, do not reveal how Defendants’ method
of calculating the regular rate of pay violates California law. Plaintiff has also
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presented a host of mathematical calculations, but has not substantiated those
figures with a declaration or affidavit from an expert witness.
Whether an employer’s method of calculating an employee’s regular rate of
pay on a 15-day pay period complies with California law might present a valid
legal question in a case where evidence proves that such a method actually results
in unpaid overtime pay. Nonetheless, in light of Plaintiff’s failure to create a
genuine issue of material fact as to whether Defendants failed to pay her overtime
compensation in accordance with California law, we need not reach that question
here. See Avila v. Travelers Ins. Co., 651 F.2d 658, 660 (9th Cir. 1981) (“As a
federal court we are hesitant to express our construction of a novel question of state
law when it is not necessary to do so.”).
AFFIRMED.
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