Aaron v. City of Wichita, Kan.

• Decision Date: 17 June 1992
• Docket Number: No. 90-1536-K.,90-1536-K.
• Citation: 797 F. Supp. 898
• Parties: Ronald L. AARON, et al., on Behalf of Themselves and All Others Similarly Situated, Plaintiffs, v. The CITY OF WICHITA, KANSAS, Defendant.
• Court: U.S. District Court — District of Kansas

797 F. Supp. 898

Ronald L. AARON, et al., on Behalf of Themselves and All Others Similarly Situated, Plaintiffs, v. The CITY OF WICHITA, KANSAS, Defendant.

No. 90-1536-K.

United States District Court, D. Kansas.

June 17, 1992.

Ronald D. Innes, Charles W. Harris, Curfman, Harris, Rose & Weltz, Wichita, Kan., for plaintiffs.

Richard D. Ewy and Gloria G. Flentje, Foulston & Siefkin, Gary Rebenstorf, City Atty., Wichita, Kan., for defendant.

MEMORANDUM AND ORDER

PATRICK F. KELLY, Chief Judge.

This is an action by current and former fire fighters of the Operations/Fire Suppression Division of the Wichita Fire Department against the City of Wichita (City) for unpaid compensation, unpaid overtime compensation, liquidated damages and attorney fees. In their motion for partial summary judgment, plaintiffs contend the City has violated the requirements of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq., by failing to compensate them for all hours worked, by using an artificial hourly rate as the regular rate for the purpose of computing straight time and overtime compensation, and by classifying those plaintiffs with the ranks of fire captain, fire battalion chief, and division fire chief as executive employees who are exempt from the overtime requirements of the FLSA. Plaintiffs also allege a willful violation of the FLSA. In its motion for summary judgment, the City argues that plaintiffs' claims are barred by the statute of limitations, that plaintiffs were fully compensated for every hour worked, that plaintiffs' regular rate of pay was properly calculated, and that the fire captains, battalion chiefs and division chiefs were executive employees and therefore properly excluded from the FLSA overtime requirements.

Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, the court must resolve all disputed facts in favor of the party resisting summary judgment. White v. General Motors Corp., Inc., 908 F.2d 669, 670 (10th Cir.1990), cert. denied, ___ U.S. ___, 111 S.Ct. 788, 112 L.Ed.2d 850 (1991). Summary judgment shall be denied if the moving party fails to demonstrate its entitlement beyond a reasonable doubt. Norton v. Liddel, 620 F.2d 1375, 1381 (10th Cir. 1980).

The moving party is entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient showing of an essential element of the case to which the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986), cert. denied, 484 U.S. 1066, 108 S.Ct. 1028, 98 L.Ed.2d 992 (1988). In resisting a motion for summary judgment, the nonmoving party may not rely upon mere allegations, or denials, contained in its pleadings or briefs. Rather, the party must come forward with specific facts showing the presence of a genuine issue for trial. Abercrombie v. City of Catoosa, 896 F.2d 1228, 1230 (10th Cir. 1990). One of the principal purposes of summary judgment is to isolate and dispose of factually unsupported claims or defenses, and the rule should be interpreted in a way that allows it to accomplish this purpose. Celotex, 477 U.S. at 323-24, 106 S.Ct. at 2553.

A hearing on the motions was held on May 28, 1992. The court now makes the following findings of fact and conclusions of law. For the reasons stated herein, plaintiffs' motion for partial summary judgment is granted in part and denied in part. Further, the City's motion for summary judgment is granted in part and denied in part.

Issue One

The City's fire department has three major divisions: an administrative division, an operations division and a fire prevention division. Plaintiffs are, or have been, employed by the City as fire suppression officers in the operations division of the fire department.

Plaintiffs are, or have been, members of the International Association of Fire Fighters (IAFF). Fire fighters represented by the IAFF are in the pay classifications of 721, 722 and 724, and hold the job titles of fire recruits, fire fighters, fire lieutenants, fire prevention inspectors I, fire prevention training instructors I, and fire investigators I. Excluded from the bargaining unit are fire personnel officers holding the rank of fire captain or above. Compensation and other work-related conditions of the fire personnel represented by the IAFF have been determined by a bargained-for Memorandum of Agreement (MOA) which has been negotiated between the City and the IAFF each year until 1991.

In each of the negotiated agreements from 1987 through 1990, the pay schedule for fire recruits, fire fighters and fire lieutenants was detailed as an hourly rate. Also evident from the agreements and schedules are the biweekly rates of pay. Employees of the operations division work shifts of 24 hours on duty followed by 48 hours off duty. Accordingly, an operations officer who works every third day as scheduled works an average of 56 hours per week or 2,912 hours annually. In contrast, fire fighters assigned to the administrative and prevention divisions work a 40-hour week or 2,080 hours annually.

Under the applicable MOAs, operations division personnel who worked an average 56-hour week were compensated at the same biweekly and annual rates as the fire prevention division personnel in the same grade and step. None of the MOAs between the City and the IAFF distinguished between the base compensation of employees who worked 56 hours a week and those who worked 40 hours per week. It is this pay differential between 56-hour employees and 40-hour employees which is the basis for the plaintiffs' first claim.

Plaintiffs assert that the City has violated the requirements of the FLSA by not compensating them for every hour worked during each of the 24-hour tours of duty per pay period. Plaintiffs' argument is premised on the fact that the base compensation for operations officers was not adjusted upon the effective date of the FLSA in 1986. They assert that prior to 1986 all hours on duty were not considered hours worked because of the non or low productivity of some of the hours. Thus, since operations officers spent time sleeping, eating and waiting while on duty, they were compensated at the same rate as 40-hour a week employees. Plaintiffs conclude, therefore, that they have been compensated for only 40 hours of work, not 56 hours. Accordingly, plaintiffs argue that the City's failure to adjust this pay policy upon enactment of the FLSA, except for annual adjustments applied to all employees, violates the FLSA requirement that the City compensate the fire fighters for every hour worked.

The first aspect of this issue which the court addresses is the City's assertion that plaintiffs' claim is barred by the applicable statute of limitations. The statute of limitations governing FLSA claims provides for a two-year limitation period in most circumstances and a three-year limitation period for willful violations. 29 U.S.C. § 255(a).

In Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 reh'g denied, 471 U.S.1049, 105 S.Ct. 2041, 85 L.Ed.2d 340 (1985), the Supreme Court held that municipalities were subject to the FLSA. Congress responded by amending the FLSA to delay enforcement against state and local governments until April 16, 1986. Hendrix v. City of Yazoo City, Miss., 911 F.2d 1102, 1103 (5th Cir.1990). The City argues that any alleged violation of the compensation provisions of the FLSA occurred on April 16, 1986, the effective date of the FLSA. Under the City's argument, plaintiffs' action, filed on November 14, 1990, is outside the applicable statute of limitations. Plaintiffs argue that the statute of limitations has not run because the City's continued course of conduct has resulted in noncompliance with the FLSA, and each repetitive nonpayment for hours worked constitutes a new cause of action.

The continuing violation doctrine applies in two situations: when the original violation is outside the statute of limitations but closely related to other violations that are not time barred, and when the initial violation outside the statute of limitations is repeated at a later date. Hendrix, 911 F.2d at 1103. In the first instance, recovery is allowed for all violations, while in the second case each violation begins the statute of limitations anew and recovery is limited to those violations that occur within the period of limitations. Id.

In Hendrix, Yazoo City reduced the base salary of its fire fighters in order to ameliorate the effects of the FLSA requirements. 911 F.2d at 1103. The fire fighters did not bring their action against the city until three years and one month had passed. Id. In determining whether the reduction constituted a single violation barred by the statute of limitations, or whether each affected paycheck constituted a violation, the court examined the practice at issue to see if it was part of a past discriminatory act or whether it was facially neutral and merely gave effect to a prior act of discrimination. Id. at 1104. The Hendrix court noted that the plaintiffs were fully aware of the reduction in their base rate of pay when they received their April 16, 1986 paychecks. Id. at 1105. It concluded that the reduction in pay was the violation and the subsequent paychecks simply gave continued effect in a facially neutral manner. Thus, there was no continuing violation and the action was barred by the statute of limitations. Id.

In contrast, the court in Halferty v. Pulse Drug Co., Inc., 821 F.2d 261 (5th Cir.), modified, 826 F.2d 2 (1987), found that the defendant's failure to compensate plaintiff in accordance with the FLSA provisions constituted a...