Ed Alonzo v. Akal Security, Inc.

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 5, 2020
• Docket: 19-15633
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 5 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ED E. ALONZO, No. 19-15633

Plaintiff-Appellant, D.C. No. 2:17-cv-00836-JJT

v. MEMORANDUM* AKAL SECURITY INCORPORATED,

Defendant-Appellee.

Appeal from the United States District Court for the District of Arizona John Joseph Tuchi, District Judge, Presiding

Submitted June 3, 2020** Seattle, Washington

Before: GOULD, BEA, and MURGUIA, Circuit Judges.

Ed Alonzo (“Alonzo”) appeals the district court’s grant of summary

judgment in favor of Akal Security, Inc. (“Akal”) in his Fair Labor Standards Act

(“FLSA”) action. We review de novo a district court’s grant of summary

judgment. United States v. Alameda Gateway, Ltd., 213 F.3d 1161, 1164 (9th Cir.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 2000). Viewing the evidence in the light most favorable to Alonzo, we must

determine whether there are any genuine issues of material fact and whether the

district court correctly applied the relevant substantive law. Lopez v. Smith, 203

F.3d 1122, 1131 (9th Cir. 2000) (en banc). We also review de novo the district

court’s interpretation of the FLSA and its regulations, which are questions of law.

See, e.g., Magana v. Northern Mariana Islands, 107 F.3d 1436, 1438 (9th Cir.

1997) (“We review de novo district court decisions regarding exemptions to the

[FLSA].”). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Akal is a government contractor employed to repatriate individuals ordered

removed from the United States. Alonzo is a former Aviation Security Officer

(“ASO”) for Akal. As an ASO, Alonzo provided security and other services for

flights originating in Mesa, Arizona going to and from Central American countries.

Alonzo challenges Akal’s meal period policy of automatically deducting one hour

from each shift if the shift’s last leg was a flight back to the United States that was

longer than ninety minutes and the flight had no detainees on-board (“Empty

Return Legs”). The policy was described in Alonzo’s offer letter, in Akal’s

timekeeping policy, and in the collective bargaining agreement between Akal and

Alonzo’s union. Alonzo executed the first two documents and was a party to the

third as a union member.

2 FLSA regulations expressly authorize unpaid meal periods only if they are

“bona fide.” 29 C.F.R. §§ 785.19, 785.41. We apply the “completely relieved

from duty” test to determine whether a meal period is bona fide. See Busk v.

Integrity Staffing Sols., Inc., 713 F.3d 525, 531–32 (9th Cir. 2013) (applying the

“completely relieved from duty” test), rev’d on other grounds, 135 S. Ct. 513

(2014). Under this test, an “employee must be completely relieved from duty for

the purposes of eating regular meals.” 29 C.F.R. § 785.19(a). An “employee is not

relieved if he is required to perform any duties, whether active or inactive, while

eating.” Id.

Critically, the relevant regulations do not require an employer to permit an

employee to leave the business’s premises during a meal period for the meal period

to be considered bona fide. Id. § 785.19(b) (“It is not necessary that an employee

be permitted to leave the premises if he is otherwise freed from duties during the

meal period.”). The regulations, in fact, explicitly authorize unpaid meal periods

while an employee is required to ride “a truck, bus, automobile, boat or airplane.”

Id. § 785.41. Accordingly, it is not legally significant that Alonzo’s unpaid meal

periods took place while he was on-board an airplane.

Because Alonzo acknowledges that he did not perform any work during an

unpaid meal period during his time at Akal, and because he could not recall any

Empty Return Leg flight during which he did not have at least one hour of free

3 time, the district court properly concluded that Alonzo failed to raise a triable issue

as to whether Akal is liable for violating the FLSA. See Busk, 713 F.3d at 531–32.

AFFIRMED.