948 F.2d 1529 (10th Cir. 1991), 90-3249, Renfro v. City of Emporia, Kan.
|Citation:||948 F.2d 1529|
|Party Name:||P 35,565 William C. RENFRO; Alan R. Metchley; William L. Olson; Timothy L. Webb; Alan R. Mechtley; Rick A. Clark; Gary W. Brammer; Lyle G. Armitage, IV; Larry D. Bess; Kelly K. Riggs; Bobby W. Fancher; Steven F. Kuhlman; Charles A. Smith; Jesse C. Shaver; Gilbert Herrera; Keith L. Peres; David V. Kelly; Terence L. Kramer; William C. Renfro; James L|
|Case Date:||November 13, 1991|
|Court:||United States Courts of Appeals, Court of Appeals for the Tenth Circuit|
Thomas A. Woodley (Gregory K. McGillivary, with him on the brief) of Mulholland & Hickey, Washington, D.C., for plaintiffs-appellees.
Stanley E. Craven (Dale W. Bell of Helbert, Bell & Smith, Emporia, Kan., with him on the briefs) of Spencer Fane Britt & Browne, Kansas City, Mo., for defendant-appellant.
James M. Kaup and David L. Corliss, Topeka, Kan., on the brief for amicus curiae.
Before SEYMOUR, BARRETT and BRORBY, Circuit Judges.
BARRETT, Senior Circuit Judge.
The City of Emporia, Kansas (hereinafter "City") appeals from the orders of the district court granting summary judgment in favor of thirty-three plaintiffs, all of whom are or were firefighters employed by City (hereinafter "firefighters"), denying City's motion for summary judgment, and assessing damages. Renfro v. City of Emporia, Kan., 729 F.Supp. 747 (D.Kan.1990). (See also Renfro v. City of Emporia, Kan., 732 F.Supp. 1116 (D.Kan.1990); Renfro v. City of Emporia, Kan., 741 F.Supp. 887 (D.Kan.1990); Renfro v. City of Emporia, Kan., 1990 WL 95087 (D.Kan.1990)).
The Fair Labor Standards Act, as amended, 29 U.S.C. § 201, et seq. (hereinafter "FLSA") requires that employers pay their employees overtime for additional hours worked over forty hours per week. Section 207 addresses the maximum work hours allowed under FLSA, and § 207(k) specifically applies to law enforcement and fire protection agencies.
In April, 1986, City became subject to the requirements of FLSA when Congress adopted the FLSA Amendments of 1985, P.L. 99-150. Upon their enactment, City created a task force to assess the impact the requirements would have on the fire department. (R., Vol. I, Tab 29 at p. 2). Firefighters were allowed to discuss with the task force the issue of compensation for on-call time. (R., Vol. I, Tab 29 at p. 9).
Firefighters employed with City were regularly scheduled to work six shifts of twenty-four hours each in a 19-day cycle, for a total of 144 hours. Each firefighter also appeared on a mandatory callback list for each 24-hour period following a regularly scheduled tour of duty. During this on-call period, the firefighters were not required to remain on the stationhouse premises. However, they were required to carry pagers and return to work within twenty minutes if called or be subject to discipline. Firefighters who were late or missed a callback received a "white slip". 1 (R., Vol. I, Tab 29 at pp. 7-8). Firefighters were paid overtime for on-call time only when actually called back to work. Firefighters called back to work were paid a minimum of an hour of overtime. (R., Vol. I, Tab 29 at p. 6).
City has two fire stations and each station maintains a separate on-call list. Five firefighters were normally on the list at one station and three at the other. The callbacks were made in the order the firefighters appeared on the list, and the order was rotated for each 24-hour on-call period. 2 Firefighters were called in when the on duty staff at the stations fell below the required minimum. (R., Vol. I, Tab 29 at p. 5).
In January, 1987, firefighters filed this action for declaratory judgment under 28 U.S.C. §§ 2201 and 2202, and for compensation and other relief under FLSA. (R., Vol. I, Tab 1). In their Complaint, firefighters alleged that: the on-call policy was so restrictive they were unable to effectively use the time for personal activities; the on-call duty was time spent working for City in excess of the hourly levels set forth in FLSA and therefore compensable under FLSA; and, City's "actions and omissions were done in a knowing, willful, purposeful, intentional and bad faith manner." (R., Vol. I, Tab 1 at p. 3).
City answered, denying firefighters' allegations of bad faith and contending it had acted in good faith when implementing the on-call policy in that firefighters had been paid any overtime to which they were entitled. (R., Vol. I, Tab 6 at pp. 4-5). City stated the on-call policy was designed to be "non-restrictive so as to allow the firefighters to effectively engage in their own personal pursuits." (R., Vol. I, Tab 6 at p. 3).
Both parties filed motions for summary judgment. In its motion, City included statements of uncontroverted facts specifically "for the purpose of their motion." (R., Vol. I, Tab 29 at p. 3). These statements included, among others, that the number of callbacks firefighters received ranged from zero to thirteen per day, but averaged approximately four to five per day. (R., Vol. I, Tab 29 at p. 6). City also acknowledged that: firefighters uniformly estimated the callbacks to average three to five per day; the average duration of a callback was one hour; and, the issuance of "white slips" was a disciplinary method. City stated, however, that the slips were received for various reasons and not simply
for missing or being late to a call. (R., Vol. I, Tab 29 at p. 7).
City contended that at the time of this lawsuit: eleven of the firefighters had secondary employment; firefighters were not required to remain on the stationhouse premises during their on-call duty but were to report within twenty minutes from the time they were called back; firefighters had traded their on-call duties with other firefighters; and that while on on-call duty, firefighters had "participated in sports activities, socialized with friends and relatives, attended business meetings, gone shopping, gone out to eat, babysitted, and performed maintenance or other activities around their home". (R., Vol. I, Tab 29 at pp. 11-12).
City further asserted that Carol King, an administrative assistant for the City, "contacted the Department of Labor, described the City['s] procedures regarding the on-call policy, and received an oral opinion that the City's procedures were not in violation of the ... Act." (R., Vol. I, Tab 29 at p. 10).
In their motion for partial summary judgment, firefighters set forth a "statement of material facts to which there existed no genuine issue," (R., Vol. I, Tab 33 at p. 2), including statements that firefighters were required to return to the stationhouse within twenty minutes after receiving a callback; white slips were a form of discipline used when a firefighter missed or was late to a call; and firefighters were paid overtime only when they were actually called back to duty and not for the time spent on-call. (R., Vol. I, Tab 33 at pp. 5-7). Firefighters further stated that on occasion a firefighter must answer 12-13 calls in one day; and that on the average, on-call firefighters receive 3-5 calls per day. (R., Vol. I, Tab 33 at p. 10).
Firefighters argued in their motion that the on-call policy greatly restricted their personal activities: that due to the twenty minute time constraint and the large number of callbacks, they could not go out of town; they could not do simple things such as change their oil or work on their cars; they could not go to a movie or go out to dinner for fear of being called back; they could not be alone with their children unless they had a babysitter "on-call;" they could not drive anywhere with anyone when on-call (i.e., they must take separate cars in case of a callback); and, they were reluctant to participate in group activities for fear of being called away. (R., Vol. I, Tab 33 at pp. 9-10).
Firefighters further contended the disciplinary "white slips" were logged by the fire chief and that a firefighter who received four or more within a four-month period could be terminated. (R., Vol. I, Tab 33 at pp. 5-7). Firefighters asserted that trading the mandatory on-call shifts was very difficult because there was no economic incentive to trade and the on-call duty was so restrictive that the other firefighters would rather not trade.
District Court's Order
In denying City's motion for summary judgment and granting firefighters' motion for partial summary judgment, the district court found that the relevant facts were largely undisputed and concluded that the on-call time was compensable time under FLSA. Renfro, 729 F.Supp. at 748. The district court found that while firefighters were not required to remain on the stationhouse premises, the conditions of the on-call duty were such that firefighters' personal pursuits were restricted. Id. at 751. The court set forth the conditions it believed restricted the firefighters, including: "the firefighter must be able to hear the pager at all times; that the firefighter must be able to report to the stationhouse within twenty minutes of being paged or be subject to discipline; that the on-call periods [were] 24-hours in length; and primarily, that the calls [were] frequent--a firefighter may receive as many as 13 calls during an on-call period, with a stated average frequency of 3-5 calls per on-call period". Id.
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