Lamon v. City of Shawnee, Kan.

• Decision Date: 10 August 1992
• Docket Number: Nos. 91-3053,91-3216 and 91-3217,91-3068,s. 91-3053
• Citation: 972 F.2d 1145
• Parties: 30 Wage & Hour Cas. (BNA) 1665, 122 Lab.Cas. P 35,680 Billy W. LAMON, Paul E. Pagacz, Ronald W. Ward, Donald Foltz, Michael G. McCoy, Larry Evans, John England, Mark W. Hein, Franklin K. Sullivan, Mark A. Ashurst, Paul F. Arnold, Terry P. Lawson, Randy A. Peddicord, Thomas F. Carney, and Ana Louisa Gamblin, administrator of the estate of Donald B. Gamblin, Jr., deceased, Plaintiffs-Appellants and Cross-Appellees, v. CITY OF SHAWNEE, KANSAS, Defendant-Appellee and Cross-Appellant, National Institute of Municipal Law Officers, Amicus Curiae, League of Kansas Municipalities, Amicus Curiae, State of Kansas, Amicus Curiae, Grand Lodge, Fraternal Order of Police, Amicus Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1145

972 F.2d 1145

30 Wage & Hour Cas. (BNA) 1665, 122 Lab.Cas.

P 35,680

Billy W. LAMON, Paul E. Pagacz, Ronald W. Ward, Donald

Foltz, Michael G. McCoy, Larry Evans, John England, Mark W.

Hein, Franklin K. Sullivan, Mark A. Ashurst, Paul F. Arnold,

Terry P. Lawson, Randy A. Peddicord, Thomas F. Carney, and

Ana Louisa Gamblin, administrator of the estate of Donald B.

Gamblin, Jr., deceased, Plaintiffs-Appellants and Cross-Appellees, v. CITY OF SHAWNEE, KANSAS, Defendant-Appellee and Cross-Appellant, National Institute of Municipal Law Officers, Amicus Curiae, League of Kansas Municipalities, Amicus Curiae, State of Kansas, Amicus Curiae,

Grand Lodge, Fraternal Order of Police, Amicus Curiae.

Nos. 91-3053, 91-3068, 91-3216 and 91-3217.

United States Court of Appeals,

Tenth Circuit.

Aug. 10, 1992.

Harold S. Youngentob, Goodell, Stratton, Edmonds & Palmer, Topeka, Kan. (Leslie E. Diehl, with him on the brief), for plaintiffs-appellants and cross-appellees.

Marvin E. Rainey, Marvin E. Rainey & Associates, Overland Park, Kan. (Eric R. Arner, with him on the brief), for defendant-appellee and cross-appellant.

James D. Conkright and Jana V. Richards, Blackwell Sanders Matheny Weary & Lombardi, Overland Park, Kan. by brief, for amicus curiae, Nat. Institute of Mun. Law Officers in support of defendant-appellee and cross-appellant.

James M. Kaup and Michael M. Schultz, Topeka, Kan. by brief, for amicus curiae, League of Kansas Municipalities in support of defendant-appellee and cross-appellant.

Robert T. Stephan, Atty. Gen., and Carl A. Gallagher, Assistant Attorney General, Topeka, Kan. by brief, for amicus curiae, State of Kan. in support of defendant-appellee and cross-appellant.

James E. Phillips, G. Ross Bridgman and Allen S. Kinzer, Vorys, Sater, Seymour and Pease, Columbus, Ohio by brief, for amicus curiae, Grand Lodge, Fraternal Order of Police in support of plaintiffs-appellants and cross-appellees.

Before BALDOCK and BARRETT, Circuit Judges, and PARKER ^*, District Judge.

PARKER, District Judge.

Plaintiffs-Appellants ("Plaintiffs"), fifteen current and former police officers and sergeants of the City of Shawnee Police Department, brought this action in district court against Defendant-Appellee City of Shawnee ("Defendant" or "City"), asserting violations of the Fair Labor Standards Act of 1938 ("FLSA" or "the Act"), § 1 et seq., as amended, 29 U.S.C. § 201 et seq. ¹ (R., Appendix to Brief of Appellants, exh. A). Plaintiffs alleged that the City violated FLSA's compensation provisions by failing to pay Plaintiffs for meal periods occurring during work shifts and for failing to compensate those Plaintiffs working as supervisors ("supervisory Plaintiffs") ² for the time necessary to prepare for the daily pre-shift briefings. (R., Appendix to Brief of Appellants, exh. A & C). These issues were tried to a jury, which returned a verdict in favor of Plaintiffs on the question of compensability of meal periods but against the six supervisory Plaintiffs seeking compensation for preparation time. ³ Based on the jury's further finding that the City had established a 28-day work period in accordance with FLSA, the district court by subsequent memorandum and order awarded compensatory and liquidated damages, attorneys' fees and costs to Plaintiffs. The central questions ⁴ raised by the parties on cross-appeal are (1) whether the evidence supported a finding that the City established a 28-day work period under FLSA, thereby making available to the City a more lenient overtime standard under the Act, (2) whether the district court erred in calculating the rate at which Plaintiffs should be compensated for meal periods, if those periods are compensable, (3) whether the trial court erred in not directing a verdict for Defendant and in instructing the jury on the compensability claims for meal periods, (4) whether the jury's determination that the supervisory Plaintiffs were not entitled to recover for time spent prior to pre-shift briefings was supported by substantial evidence, and (5) whether the trial court properly awarded liquidated damages and attorneys' fees. We affirm in part, reverse in part, vacate in part, and remand for further proceedings.

I. BACKGROUND

This dispute arises out of the City's promulgation of new compensation policies for the City's Police Department. The requirements of FLSA became applicable to state and local government employers on April 15, 1986, as mandated by Congress in its 1985 amendments to FLSA. Fair Labor Standards Amendments of 1985, Pub.L. No. 99-150 (1985). In anticipation of the new requirements, specifically pursuant to § 207(k) of FLSA, the City adopted Administrative Code No. 2-5, effective March 30, 1986, setting forth a 28-day work period and providing for overtime payment for hours worked in excess of 171 hours within the 28-day cycle. (R., Answer Brief of Appellee, exh. B). During a 28-day cycle, each police officer works 20 shifts and is paid twice, once every 14 days. (R., Appellee's Supplemental Appendix, exh. G at 519). Every 24-hour day is divided into three slightly overlapping shifts, each of 8 1/2 hours in duration, consisting of a 15-minute briefing period before patrol duty, a 30-minute lunch break, and a final 15-minute period to complete reports and turn in equipment, with the remaining time allocated to patrol duty. (R., Appellee's Supplemental Appendix, exh. G at 90-95, 122, & 340). However, for each 8 1/2-hour shift, the City pays for 8 hours of work, not compensating for an officer's meal period unless the meal period is interrupted by a call to duty. Although the City's compensation policies only require overtime compensation for work in excess of 171 hours during the cycle, the City has abided by the practice of paying overtime for all work, excluding uninterrupted meal periods, in excess of forty hours per week, or 160 hours per 28 days. (R., Appellee's Supplemental Appendix, exh. G at 522-24). The City has compensated, at an overtime wage of time and one-half, any officer called to duty during a meal period. (R., Appellee's Supplemental Appendix, exh. G at 85).

An officer's 1/2-hour meal period begins once the officer arrives at a luncheon location and reports "10-10" to the dispatcher, signifying the suspension of patrol duty. (R., Appellee's Supplemental Appendix, exh. G at 130). During meal periods, officers are relieved of their patrol assignments, but are subject to call and are required to leave a telephone number where they can be reached or to monitor a portable radio. (R., Appellee's Supplemental Appendix, exh. G at 797 & 800). While on meal break, an officer must respond to emergency calls or personnel shortages if instructed to do so. (R., Appendix to Appellants' Answer Brief, exh. 2 at 74, 96-97 & 368). An officer is relieved of patrol duties during meal time but retains some responsibilities, including: responding to citizen requests or inquiries, responding to crimes committed in the officer's presence and acting in a responsible and professional manner. (R., Appendix to Appellants' Answer Brief, exh. 1 at 808-09). Officers may take their meal periods at any location within the City or, with approval, outside the City at their homes or at restaurants if in close proximity to the City. (R., Appendix to Appellants' Answer Brief, exh. 1 at 811-12). The officers may not conduct personal business errands during the 1/2-hour period, such as picking up laundry at the cleaners, getting a haircut or grocery shopping. (R., Appendix to Appellants' Answer Brief, exh. 1 at 69).

Plaintiffs filed their Complaint on August 23, 1988. After denying the parties' cross-motions for summary judgment on the FLSA, Kansas labor act and implied contract claims by a memorandum and order entered October 4, 1990, 1990 WL 186280, the court set the question of liability for jury trial. ⁵ On October 22, 1990, the jury returned its verdict, finding the City liable on the mealtime claim. Thereafter, the parties briefed the correlating damages issue. In a memorandum and order of January 4, 1991, the court awarded damages, attorneys' fees and costs to Plaintiffs and denied Defendant's motion for new trial, to amend or vacate the verdict, or for judgment notwithstanding the verdict. Lamon v. City of Shawnee, 754 F.Supp. 1518 (D.Kan.1991). The court reasoned that the jury's finding of a 28-day work period partially released the City from paying overtime compensation. In short, Plaintiffs were entitled to be paid no more than their regular wage for hours worked over 160 and up through 171 hours and to be paid overtime for hours worked above 171 hours. Because the Plaintiffs took no more than ten hours in meal periods within a 28-day period, the court determined that the compensation due, however, would be calculated at the regular hourly rate. Id. Consistent therewith, the court awarded Plaintiffs $90,614.37 in actual damages and an equal amount in liquidated damages, plus attorneys' fees and costs. Id. Finally, by memorandum and order of May 10, 1991, 1991 WL 105211, the court denied Defendant's motion to alter or amend the damages, fees and costs award.

II. DISCUSSION

With the passage of FLSA in 1938, Congress established a comprehensive remedial scheme requiring a minimum wage and limiting the maximum number of hours worked, absent payment of an overtime wage for all hours worked in excess of the specified maximum number. At its inception, FLSA did not apply to state and local governments. In 1974, Congress extended FLSA's reach to virtually all state and local government employees. FLSA Amendments of 1974, 29 U.S.C. § 203(d) and (x). See Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 533, 105 S.Ct. 1005, 1008, 83 L.Ed.2d 1016 (1985). But, in 1976, the Supreme Court invalidated FLSA's extension to state and local governments when those entities were performing traditional governmental functions, including the provision of police protection, ...