Nichols v. Hurley

• Decision Date: 21 December 1990
• Docket Number: 89-7080,Nos. 89-7033,s. 89-7033
• Citation: 921 F.2d 1101
• Parties: 30 Wage & Hour Cas. (BN 125, 59 USLW 2463, 117 Lab.Cas. P 35,440 Russell NICHOLS; Robert Campbell; Jim Walters; Hayden Byrd; Carl Miller; Loyd McBee; Blake Dudoit, Plaintiffs-Appellants, v. Charles HURLEY, as Sheriff of LeFlore County, Oklahoma; The Board of County Commissioners of the County of LeFlore, State of Oklahoma, and The Excise Board of LeFlore County, Oklahoma, Defendants-Appellees. and The Secretary of Labor, Amicus Curiae. Al COSSEY; Alvin McGee; Jim Lawson, Plaintiffs-Appellants, v. Bobby GRAY, Sheriff of McIntosh County, State of Oklahoma; Board of County Commissioners of McIntosh County, State of Oklahoma, Defendants-Appellees. The Secretary of Labor, Amicus Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1101

921 F.2d 1101

30 Wage & Hour Cas. (BN 125, 59 USLW 2463,

117 Lab.Cas. P 35,440

Russell NICHOLS; Robert Campbell; Jim Walters; Hayden

Byrd; Carl Miller; Loyd McBee; Blake Dudoit, Plaintiffs-Appellants, v. Charles HURLEY, as Sheriff of LeFlore County, Oklahoma; The

Board of County Commissioners of the County of LeFlore,

State of Oklahoma, and The Excise Board of LeFlore County,

Oklahoma, Defendants-Appellees.

and

The Secretary of Labor, Amicus Curiae.

Al COSSEY; Alvin McGee; Jim Lawson, Plaintiffs-Appellants, v. Bobby GRAY, Sheriff of McIntosh County, State of Oklahoma;

Board of County Commissioners of McIntosh County,

State of Oklahoma, Defendants-Appellees.

The Secretary of Labor, Amicus Curiae.

Nos. 89-7033, 89-7080.

United States Court of Appeals Tenth Circuit.

Dec. 21, 1990.

Rehearing Denied Jan. 29, 1991.

Bill R. Perceful, Pocola, Okl., for plaintiffs-appellants in No. 89-7033.

Gary R. Buckles, Poteau, Okl., for defendants-appellees in No. 89-7033.

Jerry G. Thorn, Monica Gallagher, Linda Jan S. Pack, and Ford F. Newman, Washington, D.C., on the brief for amicus curiae Secretary of Labor in No. 89-7033.

Mark Green, Green and Green, Muskogee, Okl., for plaintiffs-appellants in No. 89-7080.

Oliver R. Barris III, Asst. Dist. Atty., (Tom Giulioli, Dist. Atty., with him on the brief), Eufaula, Okl., for defendants-appellees in No. 89-7080.

Robert P. Davis, Monica Gallagher, Linda Jan S. Pack, and Ford F. Newman, Washington, D.C., on the brief for amicus curiae Secretary of Labor in No. 89-7080.

Before BALDOCK, BARRETT and EBEL, Circuit Judges.

PER CURIAM.

Plaintiffs-appellants in these two consolidated cases, present or former deputy sheriffs and undersheriffs for LeFlore and McIntosh Counties, Oklahoma, (hereinafter referred to as "deputy sheriffs"), appeal from judgments of the district court granting defendants'-appellees' (collectively hereinafter referred to as "County") motions for summary judgments in the deputy sheriffs' actions seeking compensation for overtime pursuant to the Fair Labor Standards Act (FLSA), 29 U.S.C. Secs. 207, 216. County's motion for summary judgment was grounded on the contention, adopted by the district court, that the deputy sheriffs were not covered "employees" as that term is defined by the FSLA (C) any individual employed by a State, political subdivision of a State, or an interstate governmental agency, other than such individual--

(i) who is not subject to the civil service laws of the State, political subdivision, or agency which employs him; and

(ii) who--

(I) holds a public elective office of that State, political subdivision, or agency,

(II) is selected by the holder of such an office to be a member of his personal staff,

(III) is appointed by such an officeholder to serve on a policy making level, or

(IV) who is an immediate adviser to such an officeholder with respect to the constitutional or legal powers of his office.

Id. at Sec. 203(e)(2)(C).

On appeal, deputy sheriffs assert that the district court erroneously granted summary judgment in favor of County, challenging the district court's conclusion that deputy sheriffs are excepted from FLSA's definition of "employee" because a person holding that position in Oklahoma would be a member of the elected sheriff's "personal staff." For the reasons stated below, the judgment of the district court is affirmed.

We review the grant or denial of a motion for summary judgment de novo, applying the same standard as the district court. Abercrombie v. City of Catoosa, 896 F.2d 1228, 1230 (10th Cir.1990).

Background

The FLSA provides for a number of exceptions from its minimum wage and overtime compensation requirements, as well as from its overtime pay provisions. Until 1974, employees of a state or political subdivision were covered only if employed in a hospital, nursing home, school or in the operation of a railway or carrier. The 1974 amendments provided coverage for most state and political subdivision employees. 29 U.S.C. Sec. 203(d), (e)(2), (x). Exemptions from the FLSA are to be narrowly construed in favor of the employees. Brennan v. Dillion, 483 F.2d 1334 (10th Cir.1973).

The FLSA does not define the term "personal staff." The Secretary of Labor has promulgated a regulation which provides:

The statutory term 'member of personal staff' generally includes only persons who are under the direct supervision of the selecting official and have regular contact with such official. The term typically does not include individuals who are directly supervised by someone other than the elected official even though they may have been selected by the official.

29 C.F.R. Sec. 553.11(b).

Inasmuch as the definition of "employee" under the FLSA is essentially identical to that under Title VII, see 42 U.S.C. Sec. 2000e(f) ¹, we may look to both the legislative history of Title VII and cases interpretive of the "personal staff" exception under Title VII for guidance. See Brewster v. Barnes, 788 F.2d 985, 990 and n. 7 (4th Cir.1986).

In Owens v. Rush, 654 F.2d 1370 (10th Cir.1981), we addressed the "personal staff" exception in a Title VII suit brought by a Kansas undersheriff. This court began its analysis with the following general propositions:

[T]he scope of the 'personal staff' exception is governed by federal rather than state law which is only 'relevant insofar as it describes the plaintiff's position, including his duties and the way he is hired, supervised and fired.' Furthermore, the provisions of Title VII do not provide a statutory definition for the term 'personal staff.' Under these circumstances courts generally interpret the words in accordance with their ordinary, everyday meaning, absent some contrary indication in the legislative history.

The legislative history of Sec. 2000e(f) indicates that Congress intended that the personal staff exception be construed narrowly....

Thus it would appear that Congress intended for the personal staff exception to apply only to those individuals who are in highly intimate and sensitive positions of responsibility on the staff of the elected official.

Id. at 1375 (citations and footnote omitted).

Other courts have followed the same general propositions in interpreting Title VII's "personal staff" exception. See, Teneyuca v. Bexar County, 767 F.2d 148, 150 (5th Cir.1985); Curl v. Reavis, 740 F.2d 1323, 1327-28 (4th Cir.1984).

In Owens, supra, this court "looked to the nature and circumstances of the employment relationship between the complaining individual and the elected official to see if the exception applie[d]," and concluded: "Considering the nature of the Undersheriff's position and the close working relationship required to perform effectively in the position, we must conclude that plaintiff was in the type of job which Congress intended to be within the personal staff exception of Sec. 2000e(f) and thus outside Title VII coverage." 654 F.2d at 1375, 1376-77.

The specific factors relied upon by the Owens court included the following:

The Undersheriff serves at the pleasure of his superior, the County Sheriff, who has plenary power of appointment and removal. See Kan. Stat. Secs. 19-803, 805, 805c. The fact that state law permits the Sheriff to have this power shows that the state intends for the Undersheriff to be personally accountable only to one public official. Such a level of personal accountability is reasonable since the Sheriff is both politically and civilly liable for any default or misconduct of the Undersheriff in the performance of his official duties. Id. Secs. 19-801a, -804 to 805, -811 to 813, -816 to 817.

Id. at 1376. In addition to these factors, the court noted that the undersheriff testified he had " 'a very close working relationship with the sheriff' " which, the court concluded, undoubtedly was necessary since the undersheriff "was 'second in authority under the sheriff' and acted on behalf of the sheriff when he was not available or present." Id. The court further noted that by state law, in the event of a vacancy in the office of sheriff, the undersheriff would serve in his place and the sheriff's estate or bonding company would remain liable for the acts of the undersheriff in the performance of his official duties. Id.

In addition to the legislative history of Title VII, the Owens court relied primarily on the opinions from two other courts in analyzing the personal staff exception: Ramirez v. San Mateo County Dist. Attorney's Office, 639 F.2d 509 (9th Cir.1981), and Wall v. Coleman, 393 F.Supp. 826 (S.D.Ga.1975). In Ramirez, the court considered whether a deputy district attorney was a member of the district attorney's personal staff. The court noted that by law, the deputies were not protected by civil service, and they served at the will and pleasure of the district attorney, an elected official with plenary power to hire and fire. Id. at 512. The Ninth Circuit, like this court in Owens, then examined what these legislatively defined factors indicated about the working relationship that the particular government envisioned would exist between the elected official and the plaintiff:

The exclusive powers of selection and retention indicate that deputies perform to the district attorney's personal satisfaction rather than to the more generalized standards applied to other county workers by the civil service system. Such a level of personal accountability is consistent with the highly sensitive and confidential nature of the work which the deputies perform as well as with the considerable powers of the deputy to represent the district attorney in legal proceedings in the eyes of the public.

Id. at 513. The court concluded that "when a job includes this level of personal accountability to one elected official, it is precisely the sort of job Congress envisioned to be within the 'personal staff' of that official and thus exempt from Title VII." Id. ²

In Wall, the court also considered whether an assistant...