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Zuniga v. Fiesta Pediatric Therapy Inc.

United States District Court, D. Arizona

September 29, 2017

Joanne Zuniga, et al., Plaintiffs,
Fiesta Pediatric Therapy Incorporated, et al., Defendants.


          David K. Duncan United States Magistrate Judge

         Plaintiff Joanne Zuniga alleges that her former employer, Defendant Fiesta Pediatric Therapy Inc. (“Fiesta”), failed to adequately compensate her under the Fair Labor Standards Act (“FLSA”). Fiesta disagrees. Discovery has closed and pending before the Court are four related motions. (Docs. 111, 117, 121, 124) The Court has federal question jurisdiction and, upon the parties' consent to Magistrate Judge jurisdiction, pursuant to 28 U.S.C. § 636(c). (Doc. 8)

         Zuniga's Motion for Summary Judgment.

          Zuniga is prosecuting a claim to recover compensation under the FLSA. (Doc. 14) As she acknowledges, because Zuniga is “seeking to recover unpaid minimum wages or overtime under the FLSA [, she] ‘has the burden of proving that [s]he performed work for which [s]he was not properly compensated.'” Brock v. Seto, 790 F.2d 1446, 1447-48 (9th Cir. 1986) (quoting Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946)). This is not an “impossible burden” but requires that “[s]he produces sufficient evidence to show the amount and extent of that work as a matter of a just and reasonable inference.” Mt. Clements Pottery, 328 U.S. at 687. Zuniga claims that she has met her prima facie case by submitting her complete collection of paystubs and so she is entitled to summary judgment on her overtime claim.[1] (Doc. 1-1, Doc. 124 at 12:3-6) The Court disagrees.

         It appears undisputed that Fiesta paid Zuniga on a bi-monthly basis. (Doc. 1-1) In other words, Fiesta paid Zuniga 24 times a year. Thus, each pay period covered an average of 86.67 hours.[2] This kind of pay period, although not improper, means that there are a different number of work days in each period and so it does not easily reconcile with hourly work. It is undisputed that Zuniga's regular weekly schedule was to work four 10 hour days. (Doc. 120 at ¶ 43, 44, 46) This means that she would have regularly fluctuated between eight and nine days in any pay period and, depending on holidays, would have had pay periods with as few as seven days. For example, September 1-15, 2013, would have been a pay period with seven work days for Zuniga whereas April 1-15, 2013, would have had nine work days for her.[3]

         Zuniga has claimed that some weeks she worked only her regular work schedule, namely four 10 hour days. (Doc. 1-1, Doc. 120 at ¶¶ 43-46) She has also claimed she is owed overtime for all of the hours she worked over 86.67 in a given pay period. (Doc. 124 at 12) In other words, she acknowledges that her regular schedule was four 10 hour days per week, that she worked her regular schedule some pay periods, but also that she worked a minimum of 86.67 hours per pay period. However, these three assertions are facially inconsistent and she has not presented any way to harmonize them.

         An additional wrinkle exists when attempting to reconcile a pay period's 86.67 hours with her paystub's use of vacation time.[4] For example, for the first half of October 2012, Zuniga's paystub shows she was on vacation for 80 hours but also worked 6.67 hours. (Doc. 1-1 at 54) Consistent with her allegation that she worked ten hour days, this implies that she was on vacation for eight days. It is unclear if she actually worked 6.67 hours that pay period or whether she was on vacation for eight work days and the extra 6.67 hours was added as an accounting tool to give her a full paycheck. To further complicate matters, the Court notes that this pay period included Columbus Day, a holiday with inconsistent observance by the business community, and so this pay period may have had eight days but it may have had nine days depending on Fiesta's (heretofore unexplained) operations.

         Finally, as previously highlighted by the Court, her paystubs contain other patterns that, left unexplained, preclude confidence in their accuracy. (Doc. 43) There are paystubs that show Zuniga worked less than full time, i.e., under 86.67 hours, and then used so much vacation time that her paystub shows she worked more than 86.67 hours. (Doc. 1-1 at 29, 41, 36). There is a paystub that show Zuniga worked full time, i.e., 86.67 hours, but was also paid for vacation time. (Doc. 1-1 at 17) There are also several paystubs that show Zuniga worked more than full time, i.e., over 86.67 hours, and was also paid for vacation time. (Doc. 1-1 at 20, 48, 50, 64, 66, 67) In all of these scenarios, Zuniga has claimed she is owed overtime for all of the time listed in her paystubs over 86.67 hours. Without additional explanation, the Court cannot agree.

         Finally, the Court notes that Zuniga is claiming she is owed overtime for hours worked to pay off a personal loan from Williamson, not Fiesta. However, she has not provided any explanation or citation to support her claim and so the Court cannot say that this kind of unusual arrangement is covered by FLSA's requirements.

         As a result of these various categories of unanswered questions, the Court cannot say that the just and reasonable inference is that Zuniga worked the hours stated in her paystubs. Accordingly, summary judgement is not available for her FLSA claims.

         Fiesta's Motion for Summary Judgment.

          The parties do not dispute that, before her employment at Fiesta ended, Zuniga obtained copies of all of her paystubs and that she obtained copies of Fiesta's billing documents and provided them to the Arizona Board of Occupational Therapy (“AzBOT”) and the Arizona Health Care Cost Containment System (“AHCCCS”). (Doc. 124 at 16) Zuniga disputes Fiesta's allegation that she also took an original patient file. (Doc. 139 at 18)

         Based on her handling of these documents, Fiesta filed a cross-claim against Zuniga for violations of the Computer Fraud and Abuse Act at 18 U.S.C. § 1030 (“CFAA”), breach of the duty of loyalty, and misappropriation. (Doc. 56) Both sides have moved for summary judgment on these cross-claims.[5]

         CFAA Claims. Fiesta acknowledges that this Court is bound by precedent to conclude that Zuniga's actions in accessing Fiesta's computer system did not violate the CFAA. (Doc. 124 at 13) LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1132 (9th Cir. 2009). Fiesta has also abandoned its claim that Zuniga violated the CFAA by causing damages in excess of $5, 000. (Doc. 56 at 13, Doc. 139 at 18)

         Instead, Fiesta argues that Zuniga's actions violated the CFAA because she impaired the treatment of a patient. (Doc. 56 at 13) This damages claim is premised on Fiesta's claim, disputed by Zuniga, that she took the patient's file when she stopped working at Fiesta. It appears undisputed that Fiesta employees first noticed that a patient's file was missing after Zuniga separated from Fiesta. (Doc. 139 at 18-19) However, Fiesta has only linked Zuniga to this missing patient file with supposition and allegations. (Doc. 122 at 12, Doc. 138 at 19) Without more, this is insufficient to establish a prima facie case and so Fiesta is not entitled to any relief under the CFAA.

         State ...

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