David Dager v. City of Phoenix ( 2010 )

FILED
NOT FOR PUBLICATION MAY 28 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DAVID DAGER; GREG IIAMES; No. 09-15356
DANNY BOYD, and other similarly
situated employees, D.C. No. 2:06-cv-01412-JWS
Plaintiffs - Appellants,
MEMORANDUM *
v.
CITY OF PHOENIX, a body politic,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Arizona
John W. Sedwick, District Judge, Presiding
Submitted May 26, 2010 **
San Francisco, California
Before: WALLACE, GRABER, and McKEOWN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
David Dager, Greg Iiams, Danny Boyd, and other similarly situated police
officers in Phoenix, Arizona (together “Dager”) appeal from the district court’s
summary judgment in favor of the City of Phoenix, holding that donning and
doffing required police uniforms and protective gear is not compensable work
under the Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. § 201 et seq. We
review de novo the district court’s summary judgment. Brodheim v. Cry, 584 F.3d
1262, 1267 (9th Cir. 2009). We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
This appeal is squarely controlled by Bamonte v. City of Mesa, 598 F.3d
1217 (9th Cir. 2010). There, as here, appellants—police officers in Mesa,
Arizona—argued that time spent donning and doffing uniforms and protective gear
at the beginning and the end of the workday was compensable under the FLSA. Id.
at 1219. There, as here, the defendant municipality maintained lockers at the
stations for patrol officers for storage of uniforms and equipment, but did not
require that the officers change at the work site. Id. at 1220. Analyzing the
governing statutes, and giving Skidmore deference to a 2006 Department of Labor
memorandum discussing the compensability of donning and doffing gear and
clothing at home, we held in Bamonte, id. at 1233, that because “[n]o requirement
of law, rule, the employer, or the nature of the work mandates donning and doffing
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at the employer’s premises, and none of the other factors articulated in Alvarez [v.
IBP, Inc., 339 F.3d 894 (9th Cir. 2003),] weigh in favor of a conclusion of
compensability,” the district court properly granted summary judgment in favor of
the City of Mesa.
Dager offers no material facts to distinguish this case from Bamonte.
Accordingly, the district court’s summary judgment is affirmed.
AFFIRMED.
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