996 F.2d 1211 (4th Cir. 1993), 91-2068, Holb v. City of Beaufort

Docket Nº:91-2068, 92-1427.
Citation:996 F.2d 1211
Party Name:George A. HOLB; Michael E. Reynolds; Gentry D. Thames; Bruce E. Gilliam; Mark E. Morris; Dwight D. Charleston; Clifford M. Pollard; Jonas O. Greene,Plaintiffs-Appellants, v. CITY OF BEAUFORT, Defendant-Appellee. Michael E. REYNOLDS; Bruce E. Gilliam, Plaintiffs-Appellants, George A. HOLB; Gentry D. Thames; Mark E. Morris; Dwight D. Charleston; Clif
Case Date:June 22, 1993
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 1211

996 F.2d 1211 (4th Cir. 1993)

George A. HOLB; Michael E. Reynolds; Gentry D. Thames; Bruce E. Gilliam; Mark E. Morris; Dwight D. Charleston; Clifford M. Pollard; Jonas O. Greene,Plaintiffs-Appellants,

v.

CITY OF BEAUFORT, Defendant-Appellee.

Michael E. REYNOLDS; Bruce E. Gilliam, Plaintiffs-Appellants,

George A. HOLB; Gentry D. Thames; Mark E. Morris; Dwight D. Charleston; Clifford M. Pollard; Jonas O. Greene, Plaintiffs,

v.

CITY OF BEAUFORT, Defendant-Appellee.

Nos. 91-2068, 92-1427.

United States Court of Appeals, Fourth Circuit

June 22, 1993

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA4 Rule 36 regarding use of unpublished opinions)

Argued: October 30, 1991

Submitted: September 24, 1992

125 Lab.Cas. P 35,835

Appeals from the United States District Court for the District of South Carolina, at Beaufort. C. Weston Houck, District Judge. (CA-90-387-D-2)

Argued: Harold Fred Kuhn, Jr., Moss & Kuhn, P.A., Beaufort, South Carolina, for Appellants.

Linda Pearce Edwards, Gignilliat, Savitz & Bettis, Columbia, South Carolina, for Appellee.

On Brief: Stephen T. Savitz, Gignilliat, Savitz & Bettis, Columbia, South Carolina; William B. Harvey, III, Harvey & Battey, P.A., Beaufort, South Carolina, for Appellee.

D.S.C.

AFFIRMED.

Before WIDENER, Circuit Judge, SPROUSE, Senior Circuit Judge, and WARD, Senior United States District Judge for the Middle District of North Carolina, sitting by designation.

OPINION

WIDENER, Circuit Judge:

At issue in this consolidated appeal is whether appellants, eight firefighters formerly employed by the City of Beaufort, South Carolina, impliedly agreed to the City's exclusion of sleep time and meal time from the number of compensable hours worked by the firefighters, so as to justify the City's refusal to pay them overtime wages. The firefighters brought this suit, alleging that the City violated the Fair Labor Standards Act (FLSA), 29 U.S.C.§§ 207(k), by not paying the plaintiffs overtime compensation mandated under the Act. In calculating the firefighters' compensable hours, the City excluded eight hours a day for "sleep time" and two hours a day for "meal time," permitted by 29 C.F.R. §§ 553.222 and 555.223 if the firefighters expressly or impliedly agreed to the exclusions. Because we find that six of the firefighters impliedly agreed to the exclusions, we affirm the district court's grant of summary judgment against these appellants. As to Reynolds and Gilliam, whose cases proceeded to trial, we affirm the district court's grant of judgment notwithstanding the verdict in favor of the City.

I

On July 1, 1985, in response to the Supreme Court's decision in Garcia v. San Antonio Metropolitan Transit Authority, 1 Beaufort's fire chief circulated to all City firefighters a memorandum indicating that tours of duty would be changed from 24 hours followed by two days off, to 24 hours and 15 minutes followed by two days off. In addition, the City would deduct eight hours' "sleep time" and two hours' "meal time." As a consequence, employees would be paid for 53 hours of work per week, even if they worked fewer hours. Only if firefighters worked over 53 hours a week would they earn overtime pay. At the time that the new work schedule was implemented, three of the appellants were firefighters employed by the City. The other five were hired thereafter. 2 On April 15, 1986, the FLSA became effective against state and local employers, including the City of Beaufort. 3 On July 3 and 10, 1986, the fire chief circulated two memoranda establishing new time-card procedures requiring the firefighters to subtract 10 hours on each time card for each tour of duty, and to write "Deduct Sleep/Meals" next to the deduction.

On February 28, 1990, after the appellants had resigned as firefighters for the City, they filed this action. They alleged that the City violated the FLSA in the first place by increasing the firefighters' tour of duty from 24 hours to 24 hours and 15 minutes. They charged that the increase was a subterfuge to avoid the FLSA's overtime requirements, which provide that an employer may deduct sleep and meal time only if the firefighters' tour of duty exceeds 24 hours. They also alleged that the sleep and meal time deductions were illegal because the plaintiffs had not either expressly or impliedly agreed to the exclusions, as required by FLSA regulations.

[4 on the grounds that they were hired after the new pay system was implemented, and they elected to continue working for the City. "Even if they voiced complaints with the system, they can be said to have impliedly agreed to the system when they continued in their employment after discovering the matters with which they claim dissatisfaction." The court also granted summary judgment against Gentry Thames, who was already employed as a firefighter when the City established the new pay system. Thames had admitted in his deposition that he did not complain about the pay system until the end of his employment, which occurred more than three-and-a-half years after the changes were effected. The court found that Thames had impliedly agreed to the new pay system, "even though he later did make complaints about it."

The district court denied the City's motion for summary judgment as to the remaining plaintiffs, Michael Reynolds and Bruce Gilliam, who were already employed by the City when the new pay system was created. It found that a factual question existed whether Reynolds and Gilliam had voiced objections to the sleep-time and meal-time deductions, and therefore whether they had impliedly agreed to the new system. Their case proceeded to trial, and the jury returned a verdict in their favor. The City, however, filed a post-trial motion for judgment notwithstanding the verdict, which the district court granted. We have consolidated the appeal of the six plaintiffs who seek reversal of the summary judgment with the appeal of Reynolds and Gilliam, who seek reversal of the judgment notwithstanding the verdict.

II

We review the district court's grant of summary judgment de novo. Miller v. FDIC, 906 F.2d 972, 974 (4th Cir. 1990). We affirm if there is no genuine dispute as to any material fact and the City is entitled to judgment notwithstanding the verdict. Id.; Fed. R. Civ. P. 56(c). Any permissible inferences to be drawn from the underlying facts must be viewed in the light most favorable to appellants Thames, Holb, Morris, Charleston, Pollard, and Greene. If the record taken as a whole, however, could not lead a rational trier of fact to find for the appellants, the district court's grant of summary judgment must be upheld. Miller, 906 F.2d at 974.

The FLSA requires employers to pay employees for overtime if they work over 40 hours in one week. 29 U.S.C. § 207(a). An exception allows public employers of firefighters to designate a work period of between 7 and 40 days. Id. § 207(k). In...

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