                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            MAR 21 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JOHN MITCHELL an individual, on                  No.   15-55888
behalf of himself and all others similarly
situated,                                        D.C. No.
                                                 2:13-cv-06624-MWF-PLA
              Plaintiff-Appellant,

 v.                                              MEMORANDUM*

MEDTRONIC, INC., a Minnesota
Corporation,

              Defendant-Appellee.


                   Appeal from the United States District Court
                       for the Central District of California
                  Michael W. Fitzgerald, District Judge, Presiding

                     Argued and Submitted February 10, 2017
                              Pasadena, California

Before: SCHROEDER and MURGUIA, Circuit Judges, and GLEASON,** District
Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable Sharon L. Gleason, United States District Judge for
the District of Alaska, sitting by designation.
      Plaintiff-Appellant John Mitchell appeals the district court’s decision to

grant Defendant-Appellee Medtronic’s motion to dismiss Appellant’s claims

pertaining to the calculation of overtime under the Fair Labor Standards Act

(FLSA). A district court’s order granting a motion to dismiss for failure to state a

claim is reviewed de novo. Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1102

(9th Cir. 2003). We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

      Under the FLSA, overtime is calculated from an employee’s regular rate of

pay. The “regular rate” under the FLSA means the hourly rate actually paid for the

normal, non-overtime work week, Walling v. Helmerich & Payne, 323 U.S. 37, 40

(1944), and includes all remunerations paid to the employee, except for those

payments exempt under the FLSA. One such exemption is for “extra

compensation provided by a premium rate paid for certain hours worked . . . in

excess of the employee’s normal working hours.” 29 U.S.C. § 207(e)(5).

According to the Department of Labor’s regulations, premium rates paid “pursuant

to the requirements of another applicable statute” fall within the § 207(e)(5)

exemption. See 29 C.F.R. § 778.202(d).

      Medtronic’s meal payments to its California employees were fully consistent

with the payments mandated by California Labor Code § 226.7(c). Because

Medtronic’s meal payments were made pursuant to the statutory requirement of


                                          2
Cal. Lab. Code § 226.7(c), they were properly excluded from the calculation of

Medtronic’s California employees’ regular rate of pay.

AFFIRMED.




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