                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            DEC 16 2019
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


MARISHA RUSSELL,                                 No.   18-55682

              Plaintiff-Appellant,               D.C. No. 3:17-cv-00672-JLS-
                                                 WVG
 v.

GOVERNMENT EMPLOYEES                             MEMORANDUM*
INSURANCE COMPANY, a Maryland
corporation,

              Defendant-Appellee.


                    Appeal from the United States District Court
                 for the District of Southern California, San Diego
                   Janis L. Sammartino, District Judge, Presiding

                     Argued and Submitted November 4, 2019
                              Pasadena, California

Before: FARRIS, McKEOWN, and PARKER, Jr.,** Circuit Judges.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Barrington D. Parker, Jr., United States Circuit Judge
for the Second Circuit, sitting by designation.
      Marisha Russell appeals the District Court’s Fed. R. Civ. P. 12(b)(6)

dismissal of her action under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq.,

and California state law against her former employer, Government Employees

Insurance Company (“GEICO”). We review the court’s dismissal de novo,

Dougherty v. City of Covina, 654 F.3d 892, 897 (9th Cir. 2011), and we affirm.

      Russell argues that under 29 C.F.R. § 778.209(a), GEICO must retroactively

allocate her cash payment bonus over the 2012 calendar year, recompute her

regular rate of pay for the workweeks covered, and make a supplemental overtime

payment. She is incorrect. GEICO opted to calculate its cash payments as outlined

in 29 C.F.R. § 778.210, not § 778.209, and § 778.210 does not require retroactive

allocation of the bonus into an employee’s regular rate of pay or recomputation of

overtime pay. See Harris v. Best Buy Stores, L.P., No. 15-cv-00657-HSG, 2016

WL 4073327, at *4 (N.D. Cal. Aug. 1, 2016), on reconsideration, No. 15-cv-

00657-HSG, 2016 WL 6248893 (N.D. Cal. Oct. 26, 2016) (citing § 778.210;

Opinion Letter FLSA, 1997 WL 998000, at *1; FLSA 2006-4NA (February 17,

2006)).

      Under § 778.210, employers calculate bonus payments by multiplying an

employee’s regular wages and overtime earnings by the same fixed percentage,

which serves as both a bonus and a simultaneous payment of overtime


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compensation due on the bonus. See § 778.210; Harris, 2016 WL 4073327, at *4.

GEICO calculated employee cash payments and trust contributions as a percentage

of the employee’s “Total Earnings” in a calendar year, which included regular

wages, overtime earnings, and other bonuses. Thus, GEICO satisfied the

requirements of § 778.210, it has already properly paid overtime compensation,

and it need not make a supplemental overtime payment.

      Section 778.210 applies, so we need not reach Russell’s argument that

GEICO did not establish a precise formula to determine the company’s own

contributions to its profit sharing plan under 29 C.F.R. § 778.215(a)(3), which is

required to exclude employees’ trust contributions from their regular rate of pay.

      GEICO’s requirement that employees work until February of the following

year to receive their bonus cash payment does not violate § 778.503. Nor must

GEICO factor those extra two months into the employee’s Total Earnings upon

which the bonus is based. Doing so would be duplicative, as the first two months

of each year would be accounted for twice in consecutive yearly bonus

calculations.

      AFFIRMED.




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