Mayhew v. Wells

• Decision Date: 10 September 1997
• Docket Number: No. 96-1175,96-1175
• Citation: 125 F.3d 216
• Parties: 134 Lab.Cas. P 33,595, 4 Wage & Hour Cas.2d (BNA) 103 Douglas E. MAYHEW, Plaintiff-Appellant, v. Carl H. WELLS, Sheriff, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 216

125 F.3d 216

134 Lab.Cas. P 33,595, 4 Wage & Hour Cas.2d

(BNA) 103

Douglas E. MAYHEW, Plaintiff-Appellant, v. Carl H. WELLS, Sheriff, Defendant-Appellee.

No. 96-1175.

United States Court of Appeals, Fourth Circuit.

Argued March 3, 1997.

Decided Sept. 10, 1997.

ARGUED: Terry N. Grimes, King, Fulghum, Snead, Nixon & Grimes, P.C., Roanoke, VA, for Plaintiff-Appellant. Walter Wayne Heslep, Heslep, Natkin & Kearney, P.C., Lexington, VA, for Defendant-Appellee.

Before MURNAGHAN and ERVIN, Circuit Judges, and MICHAEL, Senior United States District Judge for the Western District of Virginia, sitting by designation.

Affirmed by published opinion. Judge ERVIN wrote the opinion, in which Judge MURNAGHAN and Senior Judge MICHAEL joined.

OPINION

ERVIN, Circuit Judge:

Plaintiff-Appellant Douglas E. Mayhew appeals from a judgment below awarding him compensatory damages under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., unsatisfied with the method employed in calculating those compensatory damages and with the denial of double, liquidated damages. We affirm the judgment below in its entirety.

I.

Mayhew is a former deputy sheriff of the Bedford County, Virginia, Sheriff's Department. Defendant-Appellee Charles H. Wells was the Sheriff of Bedford County during the relevant time. Mayhew worked full-time as a Drug Abuse Resistance Education (D.A.R.E.) officer from 1978 to November 1993, and thereafter, until January 1995, as a correctional officer. In addition, Mayhew owned a dog that was used sporadically as the Sheriff's Department's tracking dog. This dispute concerns the appropriate level of overtime compensation due Mayhew for the care of his dog.

Mayhew's brother owned a tracking dog whose use he volunteered to the Department. When his brother became ill in May 1985, the dog was given to Mayhew who agreed to the continued use of the dog by the Department. Mayhew agreed to care for, train, and utilize the dog, and, in exchange, Wells agreed that the Department would pay for food, veterinary care, and any tracking/training tools. Mayhew did not mention any other compensation at that time.

In 1986, Mayhew replaced the first dog, which became ill, with another dog, and Mayhew and Wells agreed to this substitution under the same terms as previously negotiated. Again, there was no discussion of compensation for the time Mayhew spent caring for and training this dog. Mayhew would later testify that he spent approximately 14 hours per week on these activities, but there was no evidence that this time was spent at the direction of Wells. When Mayhew was reassigned from D.A.R.E. to a correctional position in November 1993, he unilaterally decided to stop using the dog for tracking purposes.

Mayhew filed suit on July 18, 1994, seeking overtime compensation for the time spent caring for and training his dog pursuant to the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq. The district court granted Mayhew summary judgment on the issue of liability after Wells failed to timely present his opposition. A one-day bench trial was held on November 20, 1995, on the issue of damages. In a memorandum opinion filed January 20, 1996, the district court awarded Mayhew $5299 in compensatory damages for unpaid overtime compensation. The court determined that Mayhew was normally compensated by a salary that was fixed for fluctuating hours, and thus, pursuant to 29 C.F.R. § 778.114, Mayhew's overtime was to be compensated at one-half of his regular pay rate. The district court also denied Mayhew liquidated damages pursuant to 29 U.S.C. § 260, finding that Wells possessed several reasonable grounds to believe his actions did not violate FLSA.

Mayhew appeals the damages award, claiming both that he should have been compensated at one and one-half times his regular rate of pay, not one-half, and that he should have been awarded liquidated damages that would, in effect, double his award.

II.

Mayhew instituted the present action pursuant to FLSA, 29 U.S.C. § 216(b), which grants federal jurisdiction. See also 28 U.S.C. § 1331. This appeal arises from a final decision below, and thus we possess appellate jurisdiction under 28 U.S.C. § 1291.

We review "the district court's legal conclusions de novo and its factual findings for clear error." Waters v. Gaston County, N.C., 57 F.3d 422, 425 (4th Cir.1995). The district court's denial of liquidated damages under FLSA, 29 U.S.C. § 260, is reviewed for abuse of discretion. See Burnley v. Short, 730 F.2d 136, 140 (4th Cir.1984).

III.

The parties expend considerable time characterizing certain evidence in light of three dog-care cases that each held that the off-duty care of canine unit dogs was compensable under FLSA. See Truslow v. Spotsylvania County Sheriff, 783 F.Supp. 274, 279 (E.D.Va.1992); Nichols v. City of Chicago, 789 F.Supp. 1438, 1442-43 (N.D.Ill.1992) (relying on and finding the Truslow court's analysis "highly persuasive"); Levering v. District of Columbia, 869 F.Supp. 24, 27 (D.D.C.1994) (agreeing with Truslow ). That emphasis is misplaced, however, for Wells has not appealed his liability, and that issue is not before us. Instead, we need only contend with the very narrow issues of whether the district court applied the proper rate for determining Mayhew's overtime compensation and whether the district court abused its discretion in denying Mayhew liquidated damages.

A.

The district court relied on 29 C.F.R. § 778.114, as interpreted by the district court in Knight v. Morris, 693 F.Supp. 439, 445 (W.D.Va.1988), in determining that Mayhew should be compensated for his overtime with the dog at a rate of one-half his regular pay rate. That section of part 778, which constitutes an official interpretation by the Department of Labor but not a formally promulgated regulation, provides in part:

(a) An employee employed on a salary basis may have hours of work which fluctuate from week to week and the salary may be paid him pursuant to an understanding with his employer that he will receive such fixed amount as straight time pay for whatever hours he is called upon to work in a workweek, whether few or many. Where there is a clear mutual understanding of the parties that the fixed salary is compensation (apart from overtime premiums) for the hours worked each workweek, whatever their number, rather than for working 40 hours or some other fixed weekly work period, such a salary arrangement is permitted by the Act if the amount of the salary is sufficient to provide compensation to the employee at a rate not less than the applicable minimum wage rate for every hour worked in those workweeks in which the number of hours he works is greatest, and if he receives extra compensation, in addition to such salary, for all overtime hours worked at a rate not less than one-half his regular rate of pay.... Payment for overtime hours at one-half such rate in addition to the salary satisfies the overtime pay requirement because such hours have already been compensated at the straight time regular rate, under the salary arrangement.

29 C.F.R. § 778.114(a). The district court in Knight found that the deputy sheriffs of Greene County, Virginia, were on a fixed salary but worked a fluctuating number of hours per work period and that therefore their overtime should be compensated at a rate one-half their regular pay rate. Knight, 693 F.Supp. at 445. The court explained that the deputies had already been "paid," in part, for their overtime hours by their fixed salary and that, by receiving an additional one-half their regular pay rate for the overtime hours, they would effectively receive "time and a half" for overtime hours. Id.

The court below equated Mayhew's situation as a deputy sheriff with that of the deputies in Knight. Mayhew v. Wells, No. CA-94-570-R, slip op. at 7 (W.D.Va. Jan. 10, 1996). Whether this be a factual or legal conclusion, even a more penetrating de novo review by us fully supports this conclusion. The Department's payroll clerk provided unchallenged testimony that Mayhew was a salaried employee whose annual salary was set by the Compensation Board of the Commonwealth of Virginia. Deputies were expected to work 160 hours in each 28-day cycle but were paid their fixed salary whether they worked more or fewer hours. This testimony was exactly corroborated by Wells. Mayhew himself admitted that he was a salaried employee, and testified that he was neither "docked" for running personal errands during the work day nor paid more when he frequently worked ten extra hours a week.

Although the district court properly determined that Mayhew was employed on a fixed salary for fluctuating hours, that does not end our inquiry into whether Mayhew should be additionally compensated for overtime at a one-half rate. Since the time of the district court's opinion, we have twice had occasion to interpret § 778.114. In both Bailey v. County of Georgetown, 94 F.3d 152, 156 (4th Cir.1996), and Monahan v. County of Chesterfield, Va., 95 F.3d 1263, 1281 (4th Cir.1996), we held that § 778.114 requires a "clear mutual understanding" between employer and employee that the fixed salary is to be compensation for all straight time hours worked, whether few or many. Without such a clear mutual understanding, the fluctuating work period method of "half time overtime" cannot be utilized. In Bailey, we further held that this understanding did not have to extend to the manner in which overtime pay itself would be calculated, since neither FLSA nor any regulation was to the contrary, and an employer need not secure written acknowledgements from employees indicating that the pay plan had been explained to them. Bailey, 94 F.3d at 156. In Monahan, although we ultimately determined that § 778.114 was inapplicable to the case at bar, we noted that the section places the burden on the employer to prove the "clear mutual understanding" since the section otherwise acts as an exemption to the...