FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

COURTNEY GORDON, an individual, 

on behalf of herself and those No. 09-16167 similarly situated,

Plaintiff-Appellant, D.C. No.  3:08-cv-01543-

v. WHA

CITY OF OAKLAND, a municipal OPINION corporation,

Defendant-Appellee. 

Appeal from the United States District Court

for the Northern District of California

William H. Alsup, District Judge, Presiding

Argued and Submitted

October 8, 2010—San Francisco, California

Filed November 19, 2010

Before: Procter Hug, Jr., Pamela Ann Rymer and

N. Randy Smith, Circuit Judges.

Opinion by Judge Hug

18635
COUNSEL

Jon Webster, Concord, California, for the appellant.

GORDON v. CITY OF OAKLAND 18637
Eugene B. Elliot and Michael C. Wenzel, Bertrand Fox &

Elliot, San Francisco, California, for the appellee.

OPINION

HUG, Senior Circuit Judge:

This case concerns the City of Oakland’s (“City”) policy

requiring police officers to repay a portion of their training

costs if they voluntarily leave the City’s employment before

completing five years of service. Plaintiff-appellant Courtney

Gordon was a police officer for the City who left her position

after less than two years. She alleges that the City violated the

minimum wage provisions of the Fair Labor Standards Act

(“FLSA”), 29 U.S.C. §§ 201, et seq., by requiring her to reimburse it for part of her training costs. The district court dismissed Gordon’s complaint for failure to state a claim.

Gordon appeals the district court’s partial denial of her

motion for leave to file her Proposed First Amended Complaint. The issue in this case is whether Gordon’s Proposed

First Amended Compliant states a cognizable claim under the

minimum wage provisions of the FLSA. We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.

I. BACKGROUND

The facts here are taken from Gordon’s Proposed First

Amended Complaint and the attachments thereto. Since the

late 1990s, the City and the collective bargaining unit for City

police officers, the Oakland Police Officers’ Association,

have entered into successive collective bargaining agreements. These agreements provide that officers who voluntarily separate from the City’s employment prior to completing

five years of service must repay a pro rata share of their police

academy training costs. The agreement at issue here states

that the cost of the training is $8,000, and it establishes the

following repayment schedule:

18638 GORDON v. CITY OF OAKLAND
Length of Service % of Repayment Due

Separation prior to 1 year 100% repayment of the

$8,000.

Separation after 1 year 

but before completing the 

second year 80% repayment of the

$8,000.

Separation after 2 years 

but before completing the 

third year 60% repayment of the

$8,000.

Separation after 3 years 

but before completing the 

fourth year 40% repayment of the

$8,000.

Separation after 4 years 

but before completing the 

fifth year 20% repayment of the

$8,000.

Separation after 5 years 0% repayment 

The agreement further provides that any repayment is due

at the time of the officer’s separation and that the City will

deduct any amounts owed from the officer’s final paycheck

and any balance will be due.1

Gordon was a successful applicant for the position of

1The City conceded at oral argument that it would have violated the

minimum wage provisions of the FLSA had it followed this collective bargaining agreement and withheld Gordon’s entire final paycheck in satisfaction of her debt. 

GORDON v. CITY OF OAKLAND 18639
Police Officer Trainee. She was advised that she was required

to sign the “Conditional Offer of Position as a Police Officer

Trainee” (“Conditional Offer”) to complete the hiring process.

The Conditional Offer restated the training repayment schedule established in the collective bargaining agreement but it

did not include a statement that the City would withhold an

officer’s paycheck in satisfaction of any repayment owed.

Gordon accepted and signed the Conditional Offer and

became a police officer trainee employed by the City. The

City directed her to attend its police academy, and she successfully completed her training in June 2006. She then

became a police officer for the City. 

On January 25, 2008, before completing her second year of

service, Gordon resigned. At that time, she was earning

$37.8025 per hour. In her final two weeks of work, Gordon

was compensated for sixty hours. Her regular hourly pay,

combined with an educational incentive in the amount of

$117.33, resulted in Gordon earning $2,385.48 in gross pay

for her final two workweeks. Gordon received a final paycheck reflecting this amount. 

On the same day as her resignation, the City’s Fiscal Services Division notified Gordon that the City was entitled to

recover $6,400 (eighty percent of $8,000) in training costs as

set forth in the Conditional Offer Gordon signed. This notification stated that the City had withheld, in partial satisfaction

of these claims, the paychecks for Gordon’s accrued unused

vacation ($1,295.57) and compensatory time off ($654.77).

Thus, the City’s total remaining demand was $4,449.66.2 This

unpaid demand increased to $5,268.03 in March 2008 with

the addition of a “collection fee.” 

2Due to an apparent “miscalculation” by the City of the sum it claims

was due, and the Proposed First Amended Complaint’s failure to explain

the nature of this “miscalculation,” the $4,449.66 balance is the court’s

figure. This total is the amount remaining after deducting the sum of Gordon’s two withheld checks ($1,950.34) from the City’s $6,400 training

reimbursement claim. 

18640 GORDON v. CITY OF OAKLAND
Gordon, on behalf of herself and others similarly situated,

filed this action in district court seeking damages and declaratory relief under the FLSA, 42 U.S.C. § 1983, and various

California state laws. The district court granted the City’s

motion to dismiss Gordon’s complaint for failure to state a

claim and gave Gordon fourteen days within which to file a

motion for leave to file an amended complaint. 

Following the court’s dismissal, Gordon paid the City the

$5,268.03 it claimed was due and moved for leave to file her

Proposed First Amended Complaint. The new complaint eliminated all but the FLSA claims and included that she paid the

City $5,268.03 for “training reimbursement” and “collection

costs.” The district court concluded that the proposed

amended complaint still did not demonstrate that Gordon was

paid less than the federal minimum wage during any workweek, and it denied her leave to file her minimum wage claim

in the amended complaint. The district court did, however,

grant Gordon leave to amend to assert a claim for violation of

the overtime wage requirements under 29 U.S.C. § 207(o).

Gordon subsequently dismissed with prejudice all overtime

wage claims under 29 U.S.C. § 207(o) and entered into a Stipulation for Judgment of Dismissal for the purpose of facilitating this appeal.

II. DISCUSSION 

Although leave to amend a deficient complaint shall be

freely given when justice so requires, Fed. R. Civ. P. 15(a),

leave may be denied if amendment of the complaint would be

futile. Albrecht v. Lund, 845 F.2d 193, 195 (9th Cir. 1988).

We review for abuse of discretion the district court’s denial

of leave to amend a complaint. Smith v. Pac. Props. & Dev.

Co., 358 F.3d 1097, 1100 (9th Cir. 2004). However, whether

such “denial rests on an inaccurate view of law, and is therefore an abuse of discretion,” requires de novo review of the

underlying legal determination. Id. All allegations of material

fact made in the complaint are taken as true and construed in

GORDON v. CITY OF OAKLAND 18641
the light most favorable to the plaintiff. See Smith v. Jackson,

84 F.3d 1213, 1217 (9th Cir. 1996).

The issue in this case is whether the Conditional Offer’s

training reimbursement agreement, which required Gordon to

repay $6,400 at the time of her resignation, caused her to

receive less than the federal minimum wage during her final

workweek. Gordon contends that there is no legal difference

between deducting a sum from an employee’s check and

directly demanding the employee surrender a sum after being

paid. She maintains that after subtracting the costs she paid to

the City for the training program, she was actually paid a negative sum for her last week of work. The district court, however, concluded that because the City issued Gordon a

paycheck exceeding the minimum wage amount, the City’s

reimbursement demand did not violate the FLSA’s minimum

wage provision. We affirm.

[1] The FLSA requires all covered employers to pay their

employees at least the federal minimum hourly wage every

workweek. 29 U.S.C. § 206. As a “public agency,” the City

is a covered employer under the FLSA and must comply with

the FLSA’s minimum wage requirements. 29 U.S.C. § 203(d).

Additionally, employees cannot waive the protections of the

FLSA, Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697, 707

(1945), nor may labor organizations negotiate provisions that

waive employees’ statutory rights under the FLSA. Barrentine v. Arkansas-Best Freight Sys., 450 U.S. 728, 740-41

(1981). Consequently, neither the Conditional Offer nor the

collective bargaining agreement limit Gordon’s right to

receive at least minimum wage.

[2] The United States Department of Labor has adopted

regulations outlining employers’ FLSA obligations. One such

regulation is 29 C.F.R. § 535.31, which provides in pertinent

part: 

Whether in cash or other facilities, ‘wages’ cannot

be considered to have been paid by the employer and

18642 GORDON v. CITY OF OAKLAND
received by the employee unless they are paid finally

and unconditionally or ‘free and clear.’ The wage

requirements of the Act will not be met where the

employee ‘kicks-back’ directly or indirectly to the

employer or to another person for the employer’s

benefit the whole or part of the wage delivered to the

employee. This is true whether the “kick-back” is

made in cash or in other than cash.

Because Gordon did not allege she was paid below the federal

minimum wage for any given week,3 the only way Gordon

has stated a cognizable claim is if her payment to the City for

a portion of her training costs is a “kick-back” payment as

described in section 535.31.

[3] While this court has not previously addressed this

issue, we find persuasive the Seventh Circuit’s reasoning in

Heder v. City of Two Rivers, Wisconsin, 295 F.3d 777 (7th

Cir. 2002). Heder was decided in the context of a similar

reimbursement scheme for city firefighters. The City of Two

Rivers funded its firefighters’ mandatory paramedic training

but required a firefighter to reimburse the city for the costs of

training if the firefighter left the city’s employment before

completing three years of service. Id. The Seventh Circuit

upheld the reimbursement agreement, comparing it to a loan;

the cost of the training was a loan the city made to its firefighters, repayment of which was forgiven after three years.

Id. at 781-82. If, however, a firefighter left before three years

of service, the loan became due. Id. As long as the city paid

departing firefighters at least the statutory minimum wage, it

3Although the City withheld Gordon’s paychecks for her accrued

unused vacation ($1,295.57) and compensatory time off ($654.77), Gordon’s final paycheck demonstrates that she was paid her regular hourly

rate for her final two weeks of work. Gordon does not claim that her

hourly rate was below the $5.85 per hour required by the FLSA at the time

of her employment. 29 U.S.C. § 206(a)(1)(A). 

GORDON v. CITY OF OAKLAND 18643
could collect the training costs as an ordinary creditor. See id.

at 779.4

[4] The Seventh Circuit’s analysis is applicable here. The

$5,268.03 payment Gordon made to the City is repayment of

a voluntarily accepted loan, not a kick-back. Instead of requiring applicants to independently obtain their police training

prior to beginning employment, which the City could do by

only hiring individuals already possessing a POST certification,5

the City elected to essentially loan police officer trainees like

Gordon the cost of their police academy training. The Conditional Offer Gordon signed explained that the City would forgive her repayment obligation at the specified rate and that

she would owe nothing after five years of service. Gordon,

however, chose not to serve the five years necessary to secure

complete forgiveness. Despite the debt Gordon owed following her resignation, the City satisfied the FLSA’s requirements by paying Gordon at least minimum wage for her final

week of work. The City was therefore free to seek repayment

of Gordon’s training debt as an ordinary creditor. 

[5] Because Gordon’s repayment of her training costs is

not a kick-back under section 531.35, the training reimbursement agreement does not violate the FLSA since she was paid

at least minimum wage for her final workweek. Accordingly,

4Notably, the California Court of Appeal cites Heder with approval in

its review of the same reimbursement policy at issue here. See Hassey v.

City of Oakland, 163 Cal. App. 4th 1477 (2008). In Hassey, another

departing police officer challenged the City’s repayment demand under

the FLSA. The California Court of Appeal concluded that the plaintiff’s

reimbursement payment was not a kick-back under section 531.35; and

therefore the Conditional Offer’s reimbursement agreement did not violate

the FLSA. Id. at 1486-88. 

5The Commission on Peace Officer Standards and Training issues

POST Certificates to individuals who complete training programs prescribed by the Commission. These certificates enable individuals to independently utilize their peace officer powers in accordance with Cal. Penal

Code § 830.1, et seq. 

18644 GORDON v. CITY OF OAKLAND
we affirm the district court’s partial denial of Gordon’s

Motion for Leave to File her Proposed First Amended Complaint.

AFFIRMED.

GORDON v. CITY OF OAKLAND 18645