BRANDON ALBERS; WILLIAM ALDEN; VITORIA AVERSA II; PAUL BACA; PHILIP BACA; DAVID BALDWIN; KERRI BARRICK; WESLEY BEALE; JOSHUA BEALES; RYAN BLANKENHEIM; KAREN BLISS; TODD BLISS; KEVIN BOST; CARL BOWER; DAVID BOYD; MARK BROTT; NOAH BRYANT; WILLIAM BURCHER; CAROLYN BURDIC; JOHN BUTLER; MARK BYBEE; HEATHER CARMOSINO; JERRY CHRACHOL; TED CLIFTON; MICHAEL DALY; JESSE DANIEL; GARRETT DAVIS; MANDY DAVIS; ADAM DONAHUE; CARLOS ENCINIAS; KELLY ENGLAND; JON EVERHART; ANDREW FEHRINGER; WENDY FEHRINGER; HOPE FERRIS; JOSHUA FINKLER; CHARLES GAINES; DIETER GALLEGOS; ELIZABETH GARD; RYAN GEERTS; GREG GOMPERT; BARBARA GROVER; JOHN HADY II; FREDERICK HAGGETT; JOSHUA HAMMACK; BRADLEY HERMAN; ROBERT HOGLUND; JAMES HOLLEY; SCOTT HOLLEY; JONATHAN HOLLOWAY; JOSEPH HOLLOWAY; WAYNE HOLVERSON; JENNIFER JONES; ERIC KEBLING; KEVIN KEHL; DANIEL KIM; MARK KLUTH; TAMMI KREBS; ROBERT KRELLE; TRACI KROUPA; MARKUS LIEBE; JEREMY MAYNS; JOEL MAYNS; KEVIN MEYER; MEAGAN MILLIMAN; CHRISTOPHER MILNE; CRAIG NELSON; CHRISTOPHER PARENTE; BRANDON PAYNE; SAMUEL POLIZZOTTO; MICHAEL PRANGE; DANIEL REINERS; GREGORY ROEBUCK; LANCE SCHUL; ANTHONY SCOTT; KIMBERLY SCOTT; THOMAS SEAL; JAMES E. SHETTLER, JR.; JULIANNE SHOUN; ANDREW SIVETTS; MATTHEW SMITH; STEPHEN SPOUTZ; SCOTT STEPHENS; SYLVIA STERNWALD-DOULIK; BRAD STILES; MICHAEL STRUCKHOFF; JENNIFER SWARTZ; MICHAEL TAPLIN; IAN THOMPSON; VALERIE VALDEZ; CHRISTIAN VANBINSBERGEN; RYAN VEIRS; CURTIS WALDER; CHASE WALKER; ROSEMARIE WATSON; STEPHEN WILLDER; TIMOTHY WILLIAMS; JOHN AND JANE DOE, 1-800, individually, and on behalf of others similarly situated, Plaintiffs - Appellants,
THE BOARD OF COUNTY COMMISSIONERS OF JEFFERSON COUNTY, COLORADO; TED MINK, in his official capacity as Sheriff of Jefferson County, Colorado, Defendants - Appellees
Appeal from the United States District Court for the Colorado. (D.C. No. 1:12-CV-03362-WYD-MJW).
Donald C. Sisson, Elkus Sisson & Rosenstein, P.C. (Reid J. Elkus and Scott D. McLeod, Elkus Sisson & Rosenstein, P.C.; and Todd J. McNamara and Mathew S. Shechter, McNamara Roseman & Kazmierski, LLP, with him on the briefs), Denver, Colorado, for Appellants.
Patricia W. Gilbert, Assistant County Attorney (Ellen G. Wakeman, Jefferson County Attorney, with her on the brief), Golden, Colorado, for Appellees.
Before HOLMES, BACHARACH, and McHUGH, Circuit Judges.
McHUGH, Circuit Judge
Current and former employees (Employees) of the Jefferson County Sheriff's Office (County) brought a collective action under the Fair Labor Standards Act (FLSA), alleging they were paid overtime at a lower rate than required by the statute during 2010, 2011, and 2012. The district court granted the County's motion to dismiss the Employees' Third Amended Complaint and the Employees filed a timely appeal. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.
This wage dispute between the Employees and the County stems from their disagreement about the proper calculation of overtime pay rates. The FLSA provides that overtime work must be compensated at " one and one-half times" the employee's " regular rate" of pay. See 29 U.S.C. § 207. According to the Employees, the hourly wage rate (Actual Rate) from which the County calculated their overtime rate did not correspond to the higher hourly wage rates promised by the County in posted salary schedules (Promised Rate). As a result, the Employees claim they were paid overtime compensation at a lower rate than statutorily required during 2010, 2011, and 2012. They therefore sued the County under § 216(b) of the FLSA for the difference between the overtime payments they actually received and the overtime they would have received if it had been calculated based on the Promised Rates. See 29 U.S.C. § 216(b) (providing a cause of action for unpaid overtime wages).
The County moved to dismiss the Second Amended Complaint, arguing the Employees had failed to allege it had approved a budget incorporating the Promised Rates or facts demonstrating the existence of an enforceable promise to pay those rates. Rather than responding to the County's First Motion to Dismiss, the Employees conducted limited discovery and then filed a Third Amended Complaint. Except for the addition of factual allegations designed to address concerns raised in the First Motion to Dismiss, the Third Amended Complaint is essentially identical to the Second Amended Complaint. Upon the filing of the Third Amended Complaint, the district court dismissed the County's First Motion to Dismiss as moot. The County subsequently filed a Second Motion to Dismiss, arguing the Employees had failed to allege their " regular rates" of pay for the purposes of the FLSA were the Promised Rates (the regular rates argument), and reasserting the arguments raised in the First Motion to Dismiss.
The district court dismissed the Employees' Third Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The court held the Employees had failed to allege their " regular rates" of pay were the Promised Rates and therefore, they had not stated a claim
for unpaid overtime. The district court also concluded the Employees' argument--that " regular rates" for the purposes of the FLSA can be established by mutual agreement--failed because by continuing to work for years at the lower Actual Rates, the Employees had modified any alleged agreement concerning the Promised Rates. The Employees timely appealed.
On appeal, the Employees allege four grounds of error. First, they contend Rule 12(g)(2) of the Federal Rules of Civil Procedure barred the district court's consideration of the County's regular rates argument because the argument was not raised in the County's First Motion to Dismiss. Second, the Employees assert the district court erred when it determined the Promised Rates were not the Employees' regular rates for purposes of the FLSA. Third, they claim disputed issues of fact precluded the district court's conclusion that the parties' conduct modified any alleged promise to pay the Employees at ...