ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

JEFFREY WHITE, District Judge

Now before the Court is the motion for summary judgment filed by Defendant Costco Wholesale Corporation ("Costco"). Having carefully considered the parties' papers and the relevant legal authority, and having had the benefit of oral argument, the Court hereby GRANTS Defendant's motion for summary judgment.

BACKGROUND

Costco is a membership warehouse club that operates retail establishments. Plaintiff Elizabeth Alvarado is an hourly employee at the Danville, California warehouse who has worked there for 12 to 20 hours per week as a vault clerk since 1999. She has taken leaves of absences for medical reasons, including the latest beginning in February 2006 though July 2007. Plaintiff sued Costco while on leave in May 2006, claiming that Costco's security measures have caused delay when exiting her place of employment and demanding wages and/or penalties for uncompensated hours worked, for inadequate meal and rest breaks, and for allegedly inaccurate wage statements.

Plaintiff originally filed in Alameda County Superior Court on May 30, 2006. Costco removed to federal court on June 26, 2006 on the basis of diversity jurisdiction. On January 22, 2008, Costco moved for summary judgment or partial summary judgment.

The Court will address additional specific facts as required in the analysis.

ANALYSIS

A. Legal Standard on Motion for Summary Judgment.

A court may grant summary judgment as to all or a part of a party's claims. Fed.R.Civ.P. 56(a). Summary judgment is proper when the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). An issue is "genuine" only if there is sufficient evidence for a reasonable fact finder to find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). A fact is "material" if the fact may affect the outcome of the case. Id. at 248. "In considering a motion for summary judgment, the court may not weigh the evidence or make credibility determinations, and is required to draw all inferences in a light most favorable to the non-moving party." Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997).

A principal purpose of the summary judgment procedure is to identify and dispose of factually unsupported claims. Celotex Corp. v. Cattrett, 477 U.S. 317, 323-24 (1986). The party moving for summary judgment bears the initial burden of identifying those portions of the pleadings, discovery, and affidavits which demonstrate the absence of a genuine issue of material fact. Id. at 323. Where the moving party will have the burden of proof on an issue at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. Id. Once the moving party meets this initial burden, the non-moving party must go beyond the pleadings and by its own evidence "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The non-moving party must "identify with reasonable particularity the evidence that precludes summary judgment." Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) (quoting Richards v. Combined Ins. Co., 55 F.3d 247, 251 (7th Cir. 1995)) (stating that it is not a district court's task to "scour the record in search of a genuine issue of triable fact"). If the non-moving party fails to make this showing, the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323.

B. Costco is Entitled to Summary Judgment on Claims for Post-Termination Wage Violations.

Plaintiff claims that Costco failed to pay her wages upon termination, in violation of California Labor Code sections 201 and 202, and therefore owes her waiting-time penalties pursuant to California Labor Code section 203. Because the admissible evidence before the Court indicates that Plaintiff's employment was never terminated, Costco is not liable to her for alleged post-termination wage violations.

In her deposition, Plaintiff admitted that she was still an employee of Costco and that the company had never terminated her. (See Declaration of David D. Kadue ("Kadue Decl."), Ex. A (Alvarado Deposition) at 37:13-25; 97:2-15.) Plaintiff admitted that she did not consider the complaint's reference to "termination of employment or leaving Costco's employ" to apply to her. (Id. at 97:17-25, 102:1-16.) In addition, the record indicates that, even during her medical leave, Plaintiff received benefits afforded employees and was granted wages for time spent in meetings to discuss work consistent with her physical limitations. (Id. at 199:15-23, 200:12-20; Declaration of Tim True ("True Decl.") at ¶ 3.) In addition, when Plaintiff returned to work in July 2007, she was treated as a current employee and was not required to complete the new-hire paperwork. (Kadue Decl., Ex. A at 199:10-14; True Decl. at ¶ 4.)

It is only in her declaration submitted in conjunction with her opposition to the current motion that Plaintiff indicates that she actually believed she had been terminated from employment as a result of taking medical leave. In her declaration, she claims that she now believes and always believed that Costco had "constructively ended [her] employment for more than a year by involuntarily placing [her] on leave, and denying [her] the ability to return to work or earn wages." (Declaration of Elizabeth Alvarado ("Alvarado Decl.") at ¶ 22.) However, there is no claim for constructive discharge in the complaint and no evidence of such an allegation with the exception of the later-filed declaration. Because the Court finds the declaration contradicts her former sworn testimony, the Court will not consider the contrary declaration statement. See Kennedy v. Allied Mutual Ins. Co., 952 F.2d 262, 266-67 (9th Cir. 1991). In addition, absent a mutual understanding or specified termination date or resignation, there is no indication here that Plaintiff's employment did not continue. Plaintiff's ambiguous claim that she was constructively discharged is equally unpersuasive as her testimony confirms that she did not quit and, as she repeatedly stated that she was willing and even eager to continue employment, she testified that she did not find the circumstances of her employment intolerable. See Lawson v. Washington, 296 F.3d 799, 805 (9th Cir. 2002) (holding that "constructive discharge occurs when a person quits [her] job under circumstances in which a reasonable person would feel that the conditions of employment have become intolerable.")

Because the Court does not find that there is any dispute of fact regarding whether Costco terminated Plaintiff, and because Costco may not be held liable for post-termination alleged wage law violations, the Court GRANTS summary judgment as to the claims under California Labor Code sections 201 through 203 from the first cause of action.

C. Costco is Entitled to Summary Judgment on Claims for Unpaid Wages Because the Claims Are De Minimus.

Plaintiff claims she is owed compensation and accurate itemized wage statements for time spent submitting to Costco's security checks and/or waiting after the conclusion of her work shift, as well as during rest breaks and meal breaks. However, the Ninth Circuit has held that, at least in cases where there are claims for overtime compensation under the Fair Labor Standards Act, "trifles" such as "only a few seconds or minutes of work beyond the scheduled working hours, . . . may be disregarded." Lindow v. United States, 738 F.2d 1057, 1062 (9th Cir. 1983). The court held that although there is no precise amount of time and no rigid rule that can be applied with mathematical certainty, courts may consider a few factors to determine whether compensation is appropriate. One important factor is the amount of daily time spent on the additional work. In this regard, the Lindow court cited numerous courts that held that an additional daily period of approximately 10 minutes is considered de minimus even though otherwise compensable. See id. (citations omitted). Another factor is the "practical administrative difficulty of recording small amounts of time for payroll purposes." Id. In addition, the Ninth Circuit indicated that courts should consider the size of the aggregate claim as courts "have granted relief for claims that might have been minimal on a daily basis but, when aggregated, amounted to a substantial claim." Id. at 1063 (citations omitted). Finally, in applying the de minimus rule, courts should "consider whether the claimants performed the work on a regular basis." Id.

1. Amount of Time.

According to the record before the Court, when an employee's shift ends during business hours, they leave through the same exit as members and are similarly subject to a bag check. (See Kadue Decl., Ex. A at 17-19, 176:20-177:3.) According to Plaintiff's own testimony, the bag check takes "several seconds." (See id. at 46:4-17.) People who do not carry bags or who have not purchased merchandise do not have to subject themselves to a security inspection and have no wait at all. (See id. at 217:25-218:9.) Although there is no requirement that non-shopping members or employees have to wait in line, Plaintiff testified that she regularly waits in line behind exiting members who have made purchases. (See id. at 211:17-212:11; True Decl., ¶ 6.) At her deposition, Plaintiff testified that the longest delay she experienced in exiting the Costco warehouse during business hours has been "a couple of minutes." (See id. at 215:11-18.) Also, Plaintiff testified that while a Costco manager was not always present to facilitate an immediate after-hours exit, a key-carrying manager or supervisor was generally visible by the exit door upon closing. (See id. at 148:7-16.) However, she testified that there were "several" instances, perhaps even upward of 20 times in the nearly ten years she worked at the Danville warehouse, that Plaintiff "had to wait several minutes . . . to be let out of the building." (See id. at 34:1-4.)

Based on the admissible evidence in the record, the Court does not find that the amount of time alleged is more than de minimus.

2. Administrative Difficulty of Recording Time.

The second factor considered by the Lindow court was the administrative difficulty in recording the alleged overtime work. 738 F.2d at 1062. Plaintiff suggests that merely by repositioning the time clock close by the exit door, Costco could more accurately measure the amount of time its employees were on the job. However, there is testimony in the record indicating that repositioning the clock would cause administrative difficulties as employees could (and often do) participate in noncompensable activities after the end of their shift but before leaving the warehouse, such as shopping, attending the restroom, socializing, walking time and other personal activities. (See Supplemental Declaration of David D. Kadue, Ex. D; Alan Yamada Deposition at 2:23-3:4, 48:12-15; True Deposition at 5:11-15; True Decl. at ¶ 13.) Because the record indicates that the negligible amount of time would be difficult to record, the Court finds this factor weighs in favor of finding Plaintiff's claims are de minimus.

3. Aggregate Time.

To support her claims that the aggregate uncompensated time is significant, Plaintiff relies upon her own declaration and the estimate of her expert witness. The Court has already held that both are inadmissible. Additionally, the court in Lindow indicated that, although the aggregate claim over an extended period may be substantial, a claim may still be considered de minimus "because of the administrative difficulty of recording the time and the irregularity of the additional pre-shift work." 738 F.2d at 1063.

4. Regularity.

There is no dispute that the security checks were a regular occurrence, as they are part of Costco's written policies for members and employees. However, there is no competent evidence that the after-hours exits, sometimes made longer by virtue of the absence of a key-carrying manager, were a regular occurrence. See infra at § C.1.

Overall, under the analysis set out in Lindow, this Court finds that the amount of time, aggregate uncompensated time and the administrative difficulties in recording the small amounts of time spent in compliance with Costco's security measures, renders Plaintiff's claims de minimus. The Court finds that the same standard applies to the time spent exiting the warehouse after completion of the work-shift, for rest breaks, or for meal times. Therefore, all of Plaintiff's claims based upon failure to compensate are dismissed.

D. Costco is Entitled to Summary Judgment on Penalties Claims and Section 17200 Claims.

Plaintiff makes a claim for recovery for insufficient wage statements based upon her contention that the wages earned for time spent submitting to the security process were not reflected in her wage statements. Because the Court finds there is no dispute of fact regarding the compensability of the time, there is no dispute about the propriety of the statements. As these claims are derivative, they are dismissed.

Similarly, the Court finds that there is no basis for a finding of liability under California Business and Professions Code § 17200. See Scripps Clinic v. Superior Court, 108 Cal. App. 4th 917, 938-39 (2003) ("A defendant cannot be liable under § 17200 for committing `unlawful business practices' without having violated another law."). Although Costco did not explicitly move for summary judgment on Plaintiff's third cause of action, the Court advised the parties that it was its intention to grant summary judgment as to this claim and allowed the parties to respond. See also Portsmouth Square, Inc. v. Shareholders Protective Committee, 770 F.2d 866, 869 (9th Cir. 1985) (holding that, in limited circumstances, the Court may issue summary judgment on its own motion).

CONCLUSION

IT IS SO ORDERED.