UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

ANDREW PADILLA, 

 Plaintiff – Appellant, 

v. 

AMERICAN FEDERATION OF STATE, 

COUNTY AND MUNICIPAL 

EMPLOYEES, Council 18, 

 Defendant – Appellee. 

No. 13-2080 

(D.C. No. 1:11-CV-01028-JCH-KBM) 

(D. N.M.)

 

ORDER AND JUDGMENT*

 

Before KELLY, TYMKOVICH, and PHILLIPS, Circuit Judges. 

 

 Plaintiff Andrew Padilla appeals from the district court’s grant of summary 

judgment in favor of Defendant American Federation of State, County and Municipal 

Employees (“AFSCME”), Council 18 (“Council 18”) on his claims for violations of 

the Fair Labor Standards Act (“FLSA”) and the New Mexico Minimum Wage Act 

(“NMMWA”). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. 

 

*

 After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist the determination of this 

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

January 3, 2014

Elisabeth A. Shumaker 

Clerk of Court
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I. 

Council 18 is a non-profit, statewide labor organization that represents 

employees in the New Mexico public sector. Padilla was elected to serve as Council 

18’s Council President, an executive officer position, by Council 18’s union 

membership. He served in this capacity from 2007 to 2011. His duties, determined by 

Council 18’s constitution and by-laws, consisted of presiding or attending various 

meetings concerning Council 18, reporting to union membership, signing checks, and 

reviewing financial reports. While serving as Council President, Padilla was 

employed full-time with the Bernalillo County Water Utility Authority (“Water 

Authority”). 

Padilla regularly performed his duties as Council President during regular 

work hours at the Water Authority and on weekends. He claims he worked in excess 

of forty hours per week performing Council 18 duties. He filed this action in 

November 2011, alleging he was an employee of Council 18 entitled to unpaid wages 

and overtime pay under the FLSA and unpaid wages and overtime pay under the 

NMMWA. The parties filed cross-motions for partial summary judgment and 

summary judgment under Fed. R. Civ. P. 56 on the issue of whether Padilla was an 

“employee” under the FLSA and NMMWA or was, instead, a volunteer. 

II. 

In making its determination of whether Padilla qualified as an “employee,” the 

district court considered evidence of a lost-time payments policy (“Lost Time 

Policy”) as provided in Council 18’s Financial Standards Code. This policy provides 
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that payments can be made to officers or members as compensation for having to take 

uncompensated leave from their employment to perform union duties. According to 

Council 18, such payments operate as reimbursements for “lost time” and are 

designed to relieve, in part, the difficulties created by volunteerism. To receive 

payment from Council 18, individuals submit a Lost Time and Mileage Request 

Sheet, verifying the number of lost-time hours. Padilla submitted such forms and 

received payments at a rate of $25.04 per hour.1

 Council 18 argued that Padilla 

received payments for his presidential duties only in the context of the Lost Time 

Policy and that he was a volunteer, not an employee. 

In support of its motion, Council 18 also proffered evidence establishing that 

in September 2011, AFSCME International expelled Padilla from Council 18. The 

expulsion was a result of an AFSCME International Judicial Panel case that found 

Padilla guilty of misappropriation and misuse of union funds in violation of the 

AFSCME International constitution. The judicial panel determined that Padilla 

requested and received “lost time payments” from Council 18 for hours for which he 

did not take uncompensated leave from his employment at the Water Authority. 

Padilla was ordered to make restitution to AFSCME in the amount of $29,284.32. 

Council 18 argued that Padilla “double-dipped,” receiving wages from his employer 

(the Water Authority) and from Council 18 for hours that did not qualify as lost time. 

 

1

 The record demonstrates that Padilla’s 2009 and 2010 W-2 tax statements 

reported wages from Council 18 in the amount of $22,832.70 and $41,359.98. 
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Padilla argued that Council 18 paid him wages for the hours he worked, which 

included, in part, hours for which he was also paid by the Water Authority. Padilla 

disputed that Council 18 adopted or followed the Lost Time Policy, alleging that 

other individuals were paid compensation allegedly under the Lost Time Policy even 

though such individuals did not take uncompensated leave from other employment. 

Accordingly, he argued that he was an “employee.” 

The district court determined that Padilla was a volunteer and not an 

“employee” of Council 18. In making this determination, the district court considered 

whether Padilla expected compensation for his service to Council 18. It relied, in 

part, on the analysis set forth in Tony & Susan Alamo Foundation v. Secretary of 

Labor, 471 U.S. 290 (1985), that distinguished employees from volunteers under the 

FLSA. The district court determined that Padilla was not economically dependent on 

Council 18 and did not receive wages for his services. It noted that the basis for 

Council 18’s payments was the Lost Time Policy and it reasoned that because this 

was the source of the payment, “[Padilla] could not have expected to receive wages 

from Council 18, for time for which he was also paid by the Water Authority.” App. 

at 242–43. 

The district court also considered whether Padilla was an employee under a 

totality of circumstances approach based on objective facts, applying the factors of 

the “economic reality” test to determine if he was a statutory employee under the 

FLSA. See Barlow v. C.R. England, Inc., 703 F.3d 497, 506 (10th Cir. 2012) 
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(identifying factors of economic reality test). It concluded that under this test Padilla 

was not an employee. The court found, among other things, that Council 18 did not 

exert control over Padilla’s services, including his schedule and the amount of time 

spent on his presidential duties and, further, that Council 18 did not hire or fire 

Padilla. 

Accordingly, the district court denied Padilla’s motion for partial summary 

judgment and granted Council 18’s motion for summary judgment on both the FLSA 

and NMMWA claims. This appeal followed. 

III. 

On cross-motions for summary judgment, we review the summary judgment 

record de novo, construing all inferences in favor of the party against whom summary 

judgment was obtained. Allen v. Sybase, Inc., 468 F.3d 642, 649 (10th Cir. 2006). 

Summary judgment is appropriate “if the movant shows that there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a matter of 

law.” Fed. R. Civ. P. 56(a). 

On appeal, Padilla argues generally that the district court erred in granting 

summary judgment in favor of Council 18 because under the economic reality test, he 

is an “employee” under the FLSA and the NMMWA. We have carefully reviewed the 

record, the briefs, and the relevant legal authority under a de novo standard of 

review. We agree with the district court’s analysis, and conclude, as a matter of law, 

that Padilla is not an employee for purposes of the FLSA or NMMWA. We therefore 
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affirm the entry of summary judgment in favor of Council 18 for substantially the 

same reasons set forth in the district court’s order dated March 28, 2013. 

 Entered for the Court 

 Gregory A. Phillips 

 Circuit Judge