Rolando Lemus v. Denny's Inc.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUN 18 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
ROLANDO LEMUS, individually and on No. 13-55623
behalf of other members of the general
public similarly situated, D.C. No. 3:11-cv-02131-CAB-
WVG
Plaintiff - Appellant,
v. MEMORANDUM*
DENNY’S INC.,
Defendant - Appellee.
Appeal from the United States District Court
for the Southern District of California
Cathy Ann Bencivengo, District Judge, Presiding
Argued and Submitted June 4, 2015
Pasadena, California
Before: M. SMITH and N.R. SMITH, Circuit Judges and LEFKOW,** Senior
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Joan Humphrey Lefkow, Senior District Judge for the
U.S. District Court for the Northern District of Illinois, sitting by designation.
Plaintiff-Appellant Rolando Lemus appeals the district court’s grant of
summary judgment to Defendant-Appellee Denny’s Inc. We have jurisdiction
under 28 U.S.C. § 1291 and affirm.
“We review a district court’s decision to grant summary judgment de novo.”
Carver v. Holder, 606 F.3d 690, 695 (9th Cir. 2010). “We may affirm the district
court on any basis supported by the record.” Moreno v. Baca, 431 F.3d 633, 638
(9th Cir. 2005).
1. Lemus argues that Denny’s is required, under California Labor Code
section 2802, to reimburse its employees for the cost of slip-resistant shoes as
“necessary expenditures . . . incurred by the employee[s].” Further, Lemus argues
that section 2802 applies, because the slip-resistant footwear at issue in this case is
not regulated by either the federal Occupational Safety and Health Act of 1970
(“OSHA”) or by the California Occupational Safety and Health Act of 1973
(“CAL/OSHA”).
It is not necessary to decide the applicability of OSHA or CAL/OSHA,
because, even if section 2802 applies, it does not require Denny’s to reimburse the
cost of its employees’ slip-resistant footwear. California Labor Code section
2802(a) provides that “[a]n employer shall indemnify his or her employee for all
necessary expenditures or losses incurred by the employee in direct consequence of
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the discharge of his or her duties.” Lemus has not presented any authority that has
applied section 2802 in a way that requires an employer to pay for an employee’s
non-uniform work clothing. Nor can he, because (under California law) a
restaurant employer must only pay for its employees’ work clothing if the clothing
is a “uniform” or if the clothing qualifies as certain protective apparel regulated by
CAL/OSHA or OSHA. See Cal. Code Regs. tit. 8, § 11050(9)(A) (2001).
California’s Division of Labor Standards Enforcement (“DLSE”) has clarified:1
The definition and [DLSE] enforcement policy is sufficiently flexible
to allow the employer to specify basic wardrobe items which are usual
and generally usable in the occupation, such as white shirts, dark
pants and black shoes and belts, all of unspecified design, without
requiring the employer to furnish such items. If a required black or
white uniform or accessory does not meet the test of being generally
usable in the occupation the emplolyee [sic] may not be required to
pay for it.
Cal. Office of the State Labor Comm’r, Div. of Labor Standards Enforcement,
Dep’t of Indus. Relations, Opinion Letter No. 1990.09.18 1 (1990) (alteration in
original). Lemus has not argued that the black, slip-resistant shoes that he
purchased were part of a “uniform” or were not “generally usable in the
1
“The DLSE’s opinion letters, while not controlling upon the courts by
reason of their authority, do constitute a body of experience and informed
judgment to which courts and litigants may properly resort for guidance.”
Abdullah v. U.S. Sec. Assocs., Inc., 731 F.3d 952, 958 (9th Cir. 2013) (internal
quotation marks omitted).
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[restaurant] occupation.” See id. In fact, Lemus’s counsel conceded at oral
argument that this was not a uniform situation. Therefore, despite the general
indemnification provision in section 2802, under California labor law, Denny’s is
not required to provide the cost of slip-resistant footwear. Thus, the district court
did not err in granting summary judgment to Denny’s on this claim.2
2. Lemus argues that Denny’s violated California Labor Code section 221
when it deducted from the wages of its employees the cost of slip-resistant
footwear its employees purchased from a preferred third-party vendor. California
Labor Code section 221 reads, “It shall be unlawful for any employer to collect or
receive from an employee any part of wages theretofore paid by said employer to
said employee.” However, California Labor Code section 224 provides an
exception:
The provisions of Section[] 221 . . . shall in no way make it unlawful
for an employer to withhold or divert any portion of an employee’s
wages when . . . a deduction is expressly authorized in writing by the
employee to cover . . . deductions not amounting to a rebate or
deduction from the standard wage arrived at by collective bargaining
or pursuant to wage agreement or statute . . . .
2
Because we do not reach the issue of whether OSHA preempts section
2802, we need not address Lemus’s alternative contention that CAL/OSHA
requires reimbursement for slip-resistant footwear. Lemus made it clear in his
briefing that he only provided the CAL/OSHA argument in case the panel
concluded that 2802 was preempted by OSHA.
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Lemus argues that Denny’s employees did not expressly authorize in writing
wage deductions when they ordered slip-resistant shoes electronically. This
argument fails, because California law explicitly states that “[i]f a law requires a
record to be in writing, an electronic record satisfies the law.” Cal. Civ. Code
§ 1633.7(c); see also Rickards v. United Parcel Serv., Inc., 142 Cal. Rptr. 3d 916,
919 (Ct. App. 2012). Lemus ordered his shoes online and logged onto the
computer using a personal password. Therefore, the district court did not err in
granting Denny’s motion for summary judgment on this claim.3
3. Lemus argues that Denny’s violated California Labor Code section 450
by “coercing” its employees to buy slip-resistant shoes from its preferred vendor.
The few cases that have addressed the issue of coercion under section 450 (and
found at least a triable issue of fact) involved situations in which the employer
actually required the employee to purchase something from the employer, see
Harris v. Vector Mktg. Corp., 656 F. Supp. 2d 1128, 1144-45 (N.D. Cal. 2009), or
required its employees to take something of value, such as meal credits, in lieu of
3
Lemus also argues that section 224 should be interpreted in a way that
makes the exception inapplicable to this case. We find Lemus’s interpretation
unpersuasive, because it runs directly contrary to the statute’s plain language and
the DLSE’s interpretation of the statute in its letter dated July 31, 1998. See Cal.
Office of the State Labor Comm’r, Div. of Labor Standards Enforcement, Dep’t of
Indus. Relations, Opinion Letter No. 1998.07.31 2 (1998).
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wages, Cal. State Rest. Ass’n v. Whitlow, 129 Cal. Rptr. 824, 828 (Ct. App. 1976).
These cases are of little help to Lemus, because it is undisputed that Denny’s did
not require its employees to purchase shoes from its preferred vendor.
Neither is Lemus’s position supported by the dictionary definitions of
coercion and compulsion he puts forth. Black’s Law Dictionary defines
“coercion” as “[c]ompulsion by physical force or threat of physical force.”
Black’s Law Dictionary 294 (9th ed. 2009). “Compel” is defined as “[t]o cause or
bring about by force, threats, or overwhelming pressure.” Id. at 321. Even if we
apply these definitions, viewing the facts in the light most favorable to Lemus, we
conclude that Denny’s did not coerce or compel Lemus to buy shoes from its
preferred vendor. There is no evidence that Denny’s threatened Lemus or
indicated that it would punish Lemus if he did not buy his shoes from its preferred
vendor. No one ever checked to see if his shoes were from the preferred vendor,
and Lemus never checked any other employees’ shoes when he was a manager.
Although Lemus’s facts, when taken in the light most favorable to him, show
some pressure to purchase from the preferred vendor, Denny’s certainly did not
utilize physical force or threat of force, nor did it exert overwhelming pressure on
its employees. Thus, the district court did not err in granting Denny’s summary
judgment on this issue.
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AFFIRMED.
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