                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            AUG 02 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ROBERTA WATTERSON, on behalf of                  No.   15-16623
herself and all others similarly situated,
                                                 D.C. No. 3:14-cv-01721-HSG
              Plaintiff-Appellant,

 v.                                              MEMORANDUM*

GARFIELD BEACH CVS, LLC,

              Defendant-Appellee.


                   Appeal from the United States District Court
                     for the Northern District of California
                 Haywood S. Gilliam, Jr., District Judge, Presiding

                        Argued and Submitted June 14, 2017
                             San Francisco, California

Before: SCHROEDER and N.R. SMITH, Circuit Judges, and PIERSOL,** District
Judge.

      Roberta Watterson (“Watterson”) appeals from the district court’s grant of

summary judgment in favor of appellee Garfield Beach CVS, LLC (“CVS”). We


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable Lawrence L. Piersol, United States District Judge for
the District of South Dakota, sitting by designation.
have jurisdiction under 28 U.S.C. § 1291. We review the grant of summary

judgment de novo. Satey v. JPMorgan Chase & Co., 521 F.3d 1087, 1091 (9th Cir.

2008). We affirm.

      1.     Under California law, employees are entitled to be paid for “hours

worked,” which is defined as “the time during which an employee is subject to the

control of an employer, and includes all the time the employee is suffered or

permitted to work, whether or not required to do so.” See IWC Wage Order No. 7-

2001 § 2(G); Cal. Code Regs., title 8, § 11070(2)(G). Watterson was not “subject

to the control of,” or “suffered or permitted to work” by, CVS. She admitted during

her deposition that CVS did not require her to sign up for medical insurance; she

was not required to complete the wellness program as a condition of her

employment; the requirements to complete the wellness program were not work

and were not part of her job duties; CVS did not direct her when to complete the

requirements of the wellness program; she could complete the questionnaire and

schedule appointments when it was convenient for her; she was not required to be

reachable or ready to perform work responsibilities; and she was never interrupted.

Cf. Morillion v. Royal Packing Co., 995 P.2d 139, 146 (Cal. 2000). Summary

judgment was proper because Watterson failed to establish a genuine issue of

material fact as to whether time spent completing annual health screenings and


                                          2
wellness questionnaires for a voluntary and optional wellness program instituted

by CVS for its employees meets the definition of “hours worked.” See Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986) (“Rule 56(c) mandates the entry of

summary judgment, after adequate time for discovery and upon motion, against a

party who fails to make a showing sufficient to establish the existence of an

element essential to that party’s case, and on which that party will bear the burden

of proof at trial.”).

       2.     Because the time spent completing the wellness program did not

amount to “hours worked,” there has been no waiver of California’s minimum

wage law. We have considered Watterson’s remaining arguments and find them all

to be either waived or unpersuasive.

       Watterson’s motion to take judicial notice of the EEOC report is denied.

AFFIRMED.




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