Alewine v. City Council of Augusta, Ga.

Decision Date13 January 1981
Docket NumberCiv. A. No. 179-113.
Citation505 F. Supp. 880
PartiesJimmy Allen ALEWINE et al., Plaintiffs, v. CITY COUNCIL OF AUGUSTA, GEORGIA, Defendant.
CourtU.S. District Court — Southern District of Georgia

Charles L. Wilkinson, III, Augusta, Ga., for plaintiffs.

Samuel F. Maguire, Augusta, Ga., for defendant.

MEMORANDUM OPINION AND ORDER ON MOTIONS FOR SUMMARY JUDGMENT

BOWEN, District Judge.

Plaintiff bus drivers, employees of the Transit Department of the City of Augusta, Georgia, filed their complaint on the 31st day of May, 1979, seeking to recover compensation for back pay alleged to be due them as overtime pay claimed under the maximum hours provisions of the Fair Labor Standards Act (29 U.S.C. § 201 et seq.) and under a section of the Ordinances of the City of Augusta (Augusta City Code § 2-48). The complaint is cast in one count and seeks relief under federal and state (city ordinance) law. Plaintiffs seek injunctive relief, back pay, attorney's fees and liquidated damages under the provisions of 29 U.S.C. § 217.

During the course of the litigation, the plaintiffs applied to the Court for a preliminary injunction seeking to restrain the city's implementation of a plan to reduce their work hours. An order was entered, after hearing and consideration of said application, on June 20, 1980.

Findings of fact have been made and necessary inferences have been drawn. The Court proceeds to dispose of the case not on summary judgment, but after the evidence has case has been tried without a jury and the evidence reaches the Court from the testimony, the record, and the parties' stipulation.

This memorandum is cast in six parts. First, the Court determines its jurisdiction to proceed. Second, there is a statement of facts found by the Court upon the stipulations made by the parties. Third, there is a discussion and a statement of conclusions of law regarding the federal law claim of the plaintiffs. Fourth, there is a discussion and a statement of conclusions of law made regarding the pendent jurisdiction state law claim. Fifth, there is a discussion and a statement of findings with respect to the plaintiffs' recovery. Last, there is an order according some of the relief sought by the plaintiffs and the defendant.

Both the plaintiffs and the defendant have filed motions for summary judgment. This opinion and order disposes of the case on the merits. The Court has heard testimony and received evidence in the case on a prior application for preliminary injunction. The Court has considered the pleadings, the briefs, and the affidavits submitted by the parties. Most importantly, the Court has considered the detailed stipulation of facts which able counsel for the parties have presented. The case is not one of factual dispute. The lawyers have handled the case vigorously, but unemotionally. They have succeeded in an effort to present the facts of the case to the Court in a well organized, impartial, and meaningful way. In some litigation, there is great need for heated pursuit of minor factual matters. In this case, however, the parties, the public, the Court, and the interest of justice and proper advocacy have been best served by this simple, direct approach to the facts. Counsel are to be commended for their presentation in this regard. However, their agreement to the facts has never diminished the zeal with which counsel have approached the legal issues. The case has been aptly briefed and argued. It is thoroughly before the Court.

JURISDICTION

There is no dispute between the parties as to the Court's jurisdiction in this case. With respect to the federal law cause of action, this Court has jurisdiction under the provisions of the Fair Labor Standards Act, 29 U.S.C. § 216(b) and under the provisions of 28 U.S.C. § 1331. Venue is proper in the Augusta Division of the Southern District of Georgia where the claim arose. 28 U.S.C. § 1391(a).

With respect to the state law claim made by the plaintiffs grounded in the city ordinances of Augusta, the facts which control are identical to those presented under the federal claim. The parties are the same and the interest of judicial economy is served by this Court's determination and disposition of that claim. The Court may therefore decide the state law claim under the doctrine of pendent jurisdiction. This doctrine provides that a federal court has the discretionary constitutional power to hear a state law claim if it arises out of the same nucleus of operative facts as plaintiffs' federal claim. Tower v. Home Construction Co., 625 F.2d 1161 (5th Cir. 1980); Curtis v. Taylor, 625 F.2d 645 (5th Cir. 1980); United States v. Capeletti Brothers, Inc., 621 F.2d 1309 (5th Cir. 1980). Here, the federal and state law claims clearly arise out of the same nucleus of operative facts.

THE FACTS

Plaintiffs are present or former employees of the City Council of Augusta, Georgia (hereinafter "the City"), who, at the time of the filing of the complaint, were working or who had worked within the preceding three years as bus drivers for the City Council of Augusta, Georgia. Plaintiff Francis H. Stafford was an employee in the housekeeping section of the Transportation Department. Her claim has been withdrawn by stipulation of counsel.

The City Council of Augusta is the governing body of the City of Augusta, Georgia, and is subject to the jurisdiction of this Court. The City of Augusta was chartered by the legislature and is a political subdivision of the State of Georgia.

The Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 201, et seq., provides for minimum wages to be paid and limits the hours which can be worked by covered employees during a workweek. Section 207 provides for the maximum hours which certain employees can work during a workweek and provides for overtime pay above the maximum hours. Originally the provisions of the Fair Labor Standards Act exempted employees of street car, trolley, and motor bus carriers from the application of the minimum wage and maximum hours provision. The 1966 amendments to the Fair Labor Standards Act, Pub.L.No.89-601, extended the maximum hours coverage to non-operating employees of transit systems and extended minimum wage coverage to all transit employees.

Effective May 1, 1974, the maximum hours exemption for operating employees of transit systems contained in 29 U.S.C. § 213(b)(7) was repealed in two stages. On May 1, 1974, they were to be paid overtime compensation for hours worked in excess of forty-eight hours per week; beginning May 1, 1975, such employees were to be paid overtime compensation for hours worked in excess of forty-four hours per week; and beginning May 1, 1976, they were to be paid overtime compensation for hours worked in excess of forty hours per week; 29 U.S.C. § 207 requires employees to be paid time and one-half for all hours worked in excess of forty hours in any one workweek.

Section 2-48 of the Code of the City of Augusta, Georgia, 1972, as amended, pages 177-178, provides as follows:

The number of hours of work to be observed by any employee in any department of the City Council, except the departments under the control and jurisdiction of the Civil Service Commission of the City, and except all employees of the City Council engaged in the paving, macadamizing, or otherwise improving for travel the streets and alleys of the City, or in connection with the curbing and guttering of such streets and alleys, shall not exceed forty hours per work week. The term "work week" shall mean a calendar week. This section shall not be construed as a reduction of the salaries and wages of any of the present or future employees of the City Council.
It shall be lawful for any City official, the Mayor, the committee superintendent, foreman, or other person directing an employee to require an employee to proceed with any duties in excess of such forty hours per work week in case of an emergency and only in such event. However, when an emergency has ended, such time devoted by such employee in excess of a forty hour work week shall be allowed the employee as overtime with time and one-half pay.
The term "employees" as used in this section, shall mean the employees covered or hereafter covered by the Officers and Employees Tenure Act of 1937-38, as amended. Each of such employees employed by the day, now or in the future, shall be paid, when he has worked forty hours in any work week his daily wages for six days, whether such forty hours work is in six days or less. Each of such employees working in any work week, now or in the future, less than forty hours, shall be paid on a time basis of the number of hours worked, as such time is in proportion to the time calculated for an employee who worked forty hours in the calendar week. (Code 1952, Ch. 2, Section 32)

On December 21, 1979, the Secretary of Labor published a regulation in the Federal Register, 44 Fed.Reg. 75630 (Dec. 21, 1979), declaring municipal transit bus systems to be within the "non-traditional" classification of municipal activities, within the meaning of National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976).

Prior to 1950, local bus service in Augusta was provided by the Georgia Power Company. In 1950, the Augusta Coach Company, a privately owned corporation, began operating local bus service in Augusta under a franchise from the City.

As shown by financial statements for the years 1968 through 1972, of record in this case, the Augusta Coach Company experienced a steady decrease in net income and working capital. The financial situation of the Augusta Coach Company steadily deteriorated until, in 1969, its Board of Directors notified the City of Augusta of their intention to discontinue service. The financial situation of the Augusta Coach Company continued to deteriorate, and early in 1973, the Augusta Coach Company again informed the City of Augusta of its intention to discontinue service.

The City...

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    ...procedures, Davids v. Akers, 549 F.2d 120 (9th Cir. 1977), and the operation of a municipal transit system, Alewine v. City Council of Augusta, 505 F.Supp. 880 (S.D.Ga.1981). Contrasting instances where courts have found (for various purposes) that certain governmental activities are not "i......
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    ...conditions under which the City Commission may grant a variance. A city ordinance is a part of state law. Alewine v. City Council of Augusta, Georgia, 505 F.Supp. 880 (S.D.Ga. 1981) (Plaintiffs' state law claim grounded in the city ordinances); Mercantile Trust & Deposit Co. of Baltimore v.......
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    ...and therefore the FLSA's overtime provisions may not constitutionally apply to the system's employees. Alewine v. City Council of Augusta, 505 F.Supp. 880, 889 (S.D.Ga.1981). Exercising pendent jurisdiction over the municipal ordinance claim, the district court awarded partial backpay to th......
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