Garofolo v. Donald B. Heslep Associates

• Decision Date: 22 April 2005
• Docket Number: No. 04-1882.,04-1882.
• Citation: 405 F.3d 194
• Parties: Edna GAROFOLO; Angelo Garofolo, all other similarly situated current and former employees who file written consents to join this action, Plaintiffs-Appellants, v. DONALD B. HESLEP ASSOCIATES, INCORPORATED, 360 West, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

405 F.3d 194

Edna GAROFOLO; Angelo Garofolo, all other similarly situated current and former employees who file written consents to join this action, Plaintiffs-Appellants, v. DONALD B. HESLEP ASSOCIATES, INCORPORATED, 360 West, Defendant-Appellee.

No. 04-1882.

United States Court of Appeals, Fourth Circuit.

Argued: February 2, 2005.

Decided: April 22, 2005.

David Raymond Simonsen, Jr., Richmond, Virginia, for Appellants.

Daniel Scott Gordon, Richmond, Virginia, for Appellee.

Before NIEMEYER, MICHAEL, and DUNCAN, Circuit Judges.

Affirmed by published opinion. Judge DUNCAN wrote the opinion, in which Judge NIEMEYER and Judge MICHAEL joined.

OPINION

DUNCAN, Circuit Judge.

In this action under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201-219, Edna and Angelo Garofolo appeal from the district court's order granting summary judgment to their former employer, Donald B. Heslep Associates, Inc., 360 West ("Heslep"). The Garofolos contend that Heslep failed to compensate them for overtime work in accordance with the FLSA. The district court¹ awarded summary judgment to Heslep on the grounds that the Garofolos were fully compensated under the terms of a reasonable employment agreement between the parties. Finding no error, we affirm.

I.

A. Employment Agreement

Because this appeal is from an order granting summary judgment, we recite the facts in the light most favorable to the non-moving party. Dalton v. Capital Assoc Indus., Inc., 257 F.3d 409, 412 (4th Cir.2001).

Heslep operates self-storage facilities in Virginia under the general trade name Blue & Gray Self Storage. At each storage facility, Heslep employs two "resident managers" to operate the facility on a daily basis. The resident managers are responsible for various duties, including managing the business office and performing maintenance, grounds work, and security tasks. The resident managers are also responsible for responding to emergencies that arise during "gate hours" — the period of time when the office is closed, but the gate remains open for customers to access their storage units. For the convenience of the employer, the resident managers live full-time in an apartment located above the business office.

In 1998, Heslep hired the Garofolos to work as resident managers of its Blue & Gray Self Storage facility located on U.S. Route 360 in Midlothian, Virginia. In acceptance of their employment, the Garofolos entered into a Resident Manager Employment Agreement, which included, among other things, specific terms regarding hours of employment, job duties, and compensation. With respect to hours of employment, the storage facility had office hours from 9:00 a.m. to 6:00 p.m., Monday through Friday, and from 9:00 a.m. to 1:00 p.m. on Saturdays. The business office was closed on Sundays. The gate at the storage facility remained open from 7:00 a.m. to 6:00 p.m., Monday through Saturday, and from 9:00 a.m. to 6:00 p.m. on Sundays.²

Because the Garofolos resided on the premises, the agreement provided that they were free to divide their time between work and private pursuits. In particular, the agreement stated that during office and gate hours, the Garofolos were "free to engage in normal private pursuits, including eating, sleeping, entertaining, and leaving freedom [sic] from all duties." J.A. at 106. In light of the Garofolos' freedom to enjoy private pursuits on the job, as well as the sporadic nature of their duties after office hours, the Garofolos maintained an irregular work schedule that was not suitable to using a time card system to record the exact number of hours worked. Accordingly, the parties agreed at the outset on 40 hours per week as a reasonable estimate of the hours worked by each employee. In particular, the agreement provided that:

In view of the Employee's respective duties and the hours of work, the Employer and each Employee acknowledge the difficulty in determining the exact number of hours worked by each Employee and, therefore agree that in accordance with Section 785.23 of the Federal Wage-Hour Law, forty (40) hours shall constitute a reasonable estimate of the hours worked each week (Monday through Sunday). It is further agreed that each estimate takes into consideration all of the pertinent factors of each Employee's respective employment and all duties and work performed in connection therewith, including all normal and "on-call" work.

Id. at 107.

Thus, the Garofolos agreed to maintain, and to be compensated based upon, a 40 hour schedule per week. To this end, the agreement set forth specific instructions on how the Garofolos could accomplish their weekly duties within a 40 hour schedule. First, during office hours, the Garofolos were expected to divide the workload so that each could attend to different duties, thereby enabling them, as a team to accomplish as much work as possible. For example, while one employee managed the business office and completed administrative duties, the other was available to perform maintenance work and security checks. Although the Garofolos were free to arrange their own schedules, Heslep provided a sample schedule illustrating how the employees could accomplish their duties within a 40 hour workweek by dividing the workload. Second, the agreement authorized only one resident manager to be on-call during gate hours to respond to emergencies and to perform any duties that were not completed during office hours.

In addition, the employment agreement required the Garofolos to execute a "Monthly Hours Worked Certification" form that Heslep provided. J.A. at 107. The Garofolos were asked to submit this certification every month, indicating whether 40 hours continued to be a reasonable estimate of their actual workweek. The agreement also provided for overtime compensation if unusual circumstances caused either employee to exceed a 40 hour schedule in a given week. The Garofolos agreed to notify Heslep within 24 hours of incurring the overtime and to report the overtime in their monthly "check sheets," which they submitted for payroll purposes.

Finally, with respect to compensation, the Garofolos were promised a monthly salary of $900.00, a two-bedroom apartment on the premises valued at $750.00 a month, and health and dental benefits.

B. Overtime Claim

The Garofolos began their employment as resident managers for Heslep on November 2, 1998 and continued in this capacity until their termination in July 2003. The Garofolos claim that from October 2000 to July 2003, they regularly worked more than 40 hours per week without compensation for overtime. During this period, the Garofolos never sought to modify their employment agreement to reflect that 40 hours was not a fair estimate of their work week. Nor did they submit any requests for overtime pay during this period. The Garofolos submitted their only request for overtime compensation in 1999, and they were paid accordingly. The Garofolos never requested overtime pay after 1999 because a Regional Manager, Edward Pawlowski, told them that submitting overtime requests "doesn't look good." J.A. at 93-94. Accordingly, from January 2000 until March 2003, the Garofolos submitted monthly certifications affirming an estimated workweek of 40 hours or less.³ In addition, the Garofolos never requested overtime compensation in their payroll "check sheets" after 1999. Nevertheless, although the Garofolos did not request overtime compensation as provided in their employment agreement, they "continued to talk with Mr. Pawlowski about their overtime work." Appellants' Br. at 6.

On October 20, 2003, the Garofolos filed suit in the United States District Court for the Eastern District of Virginia, seeking to recover overtime wages pursuant to § 7(a) of the FLSA.⁴ As the factual basis for this claim, the Garofolos submitted time charts, estimating the number of hours they worked per week from October 2000 to July 2003. The charts, however, were not based upon contemporaneous records of actual work time. Rather, in 2003, Edna Garofolo prepared these estimates retroactively by calculating the number of hours the storage facility was open per week, and then subtracting any time they spent away from the facility on personal appointments.⁵

The district court granted summary judgment to Heslep on the grounds that the Garofolos' overtime claim was barred by 29 C.F.R. § 785.23 (2004), a Department of Labor regulation interpreting the FLSA. Specifically, section 785.23 provides that:

An employee who resides on his employer's premises on a permanent basis or for extended periods of time is not considered as working all the time he is on the premises. Ordinarily, he may engage in normal private pursuits and thus have enough time for eating, sleeping, entertaining, and other periods of complete freedom from all duties when he may leave the premises for purposes of his own. It is, of course, difficult to determine the exact number of hours worked under these circumstances and any reasonable agreement of the parties which takes into consideration all of the pertinent facts will be accepted....

29 C.F.R. § 785.23 (2004) (emphasis added). The district court held that the agreement to compensate the Garofolos for 40 hours per week was a "reasonable agreement" within the meaning of section 785.23. In particular, the court ruled that the 40 hour estimate was reasonable, inasmuch as the Garofolos enjoyed considerable time on the job for private pursuits and were expected to divide their work so as to accomplish as many tasks as possible within a 40 hour schedule. As further evidence of the agreement's reasonableness, the district court noted that the Garofolos were entitled to receive overtime pay if either employee worked more than 40 hours in a given week.

The district court also held that the Garofolos' time charts were legally insufficient to put in issue the reasonableness of the employment agreement. The court noted that the Garofolos...