Emanuel McCray v. Ace Parking Management, Inc.

MEMORANDUM

Emanuel McCray appeals pro se from the district court’s judgment dismissing his wage-and-hour action alleging that his employer failed to pay him wages for time spent in training and “on call” in violation of the Fair Labor Standards Act (“FLSA”) and state law. We have jurisdiction under 28 U.S.C. § 1291 . We review de novo. Kahle v. Gonzales, 487 F.3d 697, 699 (9th Cir.2007) (dismissal for failure to state a claim); Orsay v. U.S. Dep’t of Justice, 289 F.3d 1125, 1128 (9th Cir.2002) (dismissal for lack of subject matter jurisdiction). We may affirm on any ground supported by the record. Thompson v. Paul, 547 F.3d 1055, 1058-59 (9th Cir.2008). We affirm in part, vacate in part, and remand.

Dismissal of McCray’s FLSA claims was proper because McCray failed to state a claim. “Waiting” or “on-call” time is com-pensable only if an employee is “engaged to wait,” and McCray alleged facts showing that, at best, he “waited to be engaged.” Bri gham v. Eugene Water & Elec. Bd., 357 F.3d 931, 935-36 (9th Cir.2004); see also 29 C.F.R. §§ 785.14 , 785.17 (explaining determination of whether “waiting” and “on-call” time constitute “hours worked” under the FLSA). McCray also alleged…