190 F.3d 753 (6th Cir. 1999), 97-6371, Aiken, et al v Memphis

Docket Nº:97-6371
Citation:190 F.3d 753
Party Name:William Russell Aiken, et al., Plaintiffs-Appellants, v. City of Memphis, Tennessee, Defendant-Appellee.
Case Date:September 07, 1999
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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190 F.3d 753 (6th Cir. 1999)

William Russell Aiken, et al., Plaintiffs-Appellants,


City of Memphis, Tennessee, Defendant-Appellee.

No. 97-6371

United States Court of Appeals, Sixth Circuit

September 7, 1999

Argued: December 18, 1998

Appeal from the United States District Court for the Western District of Tennessee at Memphis, No. 93-02023--Jerome Turner, District Judge.

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[Copyrighted Material Omitted]

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William B. Aitchison, AITCHISON & VICK, Portland, Oregon, Edwin Dean White III, FARRIS, MATHEWS, BRANAN & HELLEN, Memphis, Tennessee, for Appellants.

Louis P. Britt III, McKNIGHT, HUDSON, FORD & HARRISON, Memphis, Tennessee, for Appellee.

Before: MARTIN, Chief Judge; RYAN and COLE, Circuit Judges

COLE, J., delivered the opinion of the court, in which MARTIN, C. J., joined. RYAN, J. (pp. 18-22), delivered a separate opinion concurring in part and dissenting in part.


R. GUY COLE, JR., Circuit Judge.

Plaintiffs, past and present Memphis police officers, brought an action against the city of Memphis asserting various claims under the Fair Labor Standards Act (FLSA or Act), 29 U.S.C. §§201 et seq. Plaintiffs currently appeal the district court's dismissal of two of those claims on summary judgment and the court's final judgment in favor of the city on three other claims. For the following reasons, we AFFIRM the judgments of the district court.


Plaintiffs filed this action on January 7, 1993. During the course of the litigation, plaintiffs alleged, among other things: that certain aspects of the city's sick leave policy violate the FLSA; that the Act requires the city to compensate canine officers for the time they spend commuting to work with their assigned dogs; that aspects of the city's policy regarding the use of compensatory time violate the FLSA; that police captains are not exempt from FLSA overtime requirements; and that officers are entitled under the Act to compensation for time spent maintaining and commuting to work in city vehicles. The district court granted the defendant's motion for summary judgment on plaintiffs' first two claims. Following a pretrial conference, the parties submitted the remaining claims to the district court for a decision based on trial memoranda, stipulations, and exhibits. The district court eventually found in favor of the city on these claims as well. This timely appeal followed.


This Court reviews de novo a district court's grant of summary judgment. See Hartsel v. Keyes, 87 F.3d 795, 799 (6th Cir. 1996). We affirm "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). When evaluating an appeal, this Court views the evidence in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

On the issues that the district court ruled on at trial, we review the district court's conclusions of law de novo. See Doe v. Clairborne County, 103 F.3d 495, 505 (6th Cir. 1996). We review its findings of fact for clear error. See United States v. Martin, 95 F.3d 406, 408 (6th Cir. 1996).


III. A Compensatory Time

Plaintiffs contend that the district court erred by ruling that the city's policy regarding the use of compensatory time does not violate the FLSA. Pursuant to memoranda of understanding between the city and the plaintiffs' union, officers who work overtime may choose between receiving overtime pay or compensatory time. Officers can accumulate up to 480 hours of compensatory time. The memoranda dictate that an officer wishing to use accrued compensatory time must sign his or her precinct's compensatory time log book any time within thirty days of the requested day off. However, the city also requires that the commanding officer of each precinct monitor its log book to ensure that each shift is adequately staffed. If the commanding officer determines that further

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requests for time off would adversely affect the functioning of the unit, based on the circumstances of the case, he or she will not allow more officers to sign up to use compensatory time on that particular day.

The plaintiffs argue that this practice of closing a precinct's log books violates the FLSA. The Act allows public agencies to provide, in lieu of overtime, "compensatory time off at a rate not less than one and one-half hours for each hour of employment for which overtime compensation is required by this section." 29 U.S.C. §207(o)(1). The Act imposes several conditions on a public agency's ability to offer compensatory time, however. Two are relevant for the purposes of this case. First, an employer may grant compensatory time in lieu of overtime pay pursuant only to a collective bargaining agreement, or other agreement. See 29 U.S.C. § 207(o)(2)(A). Second, an employee "shall be permitted by the employee's employer to use such time within a reasonable period after making the request if the use of the compensatory time does not unduly disrupt the operations of the public agency." 29 U.S.C. § 207(o)(5).

The plaintiffs' argument focuses on the phrase "unduly disrupt" in § 207(o)(5). They begin by arguing that §207(o)(5) requires an employer to grant an employee's reasonably timed request for the use of banked compensatory time, unless the use of the time would be unduly disruptive. See 29 C.F.R. § 553.25(d) ("For an agency to turn down a request from an employee for compensatory time off requires that it should reasonably and in good faith anticipate that it would impose an unreasonable burden on the agency's ability to provide services of an acceptable quality and quantity for the public during the time requested without the employee's services."); S.Rep. No. 99-159 (1985) ("By unduly disruptive, the Committee means something more than mere inconvenience."). The city, however, acknowledges its policy is not to grant overtime pay to one officer so that another can use compensatory time on a requested date. Plaintiffs contend that the payment of overtime to an officer so that another can use banked compensatory time is not an undue disruption. See Heaton v. Moore, 43 F.3d 1176, 1181 (8th Cir. 1994) ("Moreover, the eventual payment of overtime compensation cannot be deemed 'unduly disruptive.'"); 52 Fed.Reg. 11,2017 (1987) ("The Department recognizes that situations may arise in which overtime pay may be required of one employee to permit another employee to use the compensatory time off. However, such a situation, in and of itself, would not be sufficient for an employer to claim that it is unduly disruptive."). Plaintiffs conclude, therefore, that the city violates the Act by shutting the logbooks not at the point of undue disruption, but rather at the point at which a precinct would begin having to pay replacement officers on an overtime basis.

The fundamental defect in the plaintiffs' position, however, is that it completely ignores the phrase "reasonable period," which the Act gives the parties the freedom to define. See Moreau v. Harris County, 158 F.3d 241, 246-47 (5th Cir. 1998); see also 29 C.F.R. § 553.23(a)(1) (providing that agreements between employers and employees with regard to compensatory time are valid as long as they are not in conflict with the FLSA itself). Title 29 C.F.R. § 553.25(c)(2), specifically provides that:

The use of compensatory time in lieu of cash payment for overtime must be pursuant to some form of agreement or understanding between the employer and the employee (or the representative of the employee) reached prior to the performance of the work. (See § 553.23.)1 To the extent that the conditions

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under which an employee can take compensatory time off are contained in an agreement or understanding as defined in §553.23, the terms of such agreement or understanding will govern the meaning of "reasonable period."

(emphasis added). Furthermore, in the comments to the final version of 29 C.F.R. §553.25, the Department of Labor stated that:

The Department believes ... that some parties may choose to include in their agreement or understanding the conditions or terms regarding the taking of compensatory time off. No useful purpose would be served, in the Department's view, by providing for some further review under the FLSA of the appropriateness of the agreed upon terms.

52 Fed.Reg. 11,2017 (1987); see also Auer v. Robbins, --- U.S. ---; 117 S.Ct. 905, 911 (1997) (Secretary of Labor's interpretation of own regulations is controlling unless plainly erroneous)2.

In this case, the city and the plaintiffs' union had an agreement on the issue of compensatory time. The agreement provided "the conditions under which an employee can take compensatory time off." 29 C.F.R. § 553.25. These include a condition that once a certain number of officers requested a specific day off, the commanding officer may close the precinct's log book for that day. The city and the union in this case have agreed, then, that the reasonable period for requesting the use of banked compensatory time begins thirty days prior to the date in question and ends when the number of officers requesting the use of compensatory time on the given date would bring the precinct's staffing levels to the minimum level necessary for efficient operation. We are loath to interfere with this agreement. Therefore, we conclude that the district court did not err by finding for the city on this claim.

III. B Canine Commute Time

Plaintiffs also contend that the district court erred by...

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