Adair v. Charter County of Wayne
| Decision Date | 22 June 2006 |
| Docket Number | No. 04-2457.,04-2457. |
| Parties | Michael ADAIR, William Childress, Leon Denton, Charles Elstone, Richard Frederick, Richard Hitch, Ernest Hunter, Charles Johnson, Victor Kline, John Malaniak, Michael Molitor, Paul Molitor, Peter Molitor, David Okoney, Dean Pigott, Bruce Preston, Michael Tavtigian, John Teschke, Robert Tipton, and Bradford Vincent, Plaintiffs-Appellants, v. CHARTER COUNTY OF WAYNE, a Municipal Corporation, Detroit Metropolitan Wayne County Airport Authority, a Municipal Corporation, Mark DeBeau, Individually and in his capacity as Director of Public Safety, Kent Booth, Individually and in his capacity as Police Chief-Airport Police Department, Jointly and Severally, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Jamil Akhtar, Akhtar, Webb & Ebel, Troy, Michigan, for Appellants. Deborah L. Brouwer, Nemeth Burwell, Detroit, Michigan, for Appellees.
ON BRIEF:
Jamil Akhtar, Akhtar, Webb & Ebel, Troy, Michigan, for Appellants. Deborah L. Brouwer, Nemeth Burwell, Detroit, Michigan, for Appellees.
Before: SILER, SUTTON, and COOK, Circuit Judges.
Plaintiffs comprise a group of officers employed by the Wayne County Airport Authority and assigned to several specialty units. While off duty, they were required to carry pagers and to remain within a specified geographic area in order to maintain availability during off-duty hours. They filed suit under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. ("FLSA"), seeking overtime compensation for all hours not on duty but during which they carried the pagers. After suit was filed, Airport Authority management requested that officers return their pagers and also eliminated compensatory time in favor of overtime and assigned county-owned vehicles to the K-9 officers. Based on these actions, Plaintiffs amended their complaint to include claims of retaliation in violation of the FLSA and 42 U.S.C. § 1983. The district court granted summary judgment to Defendants on all claims. Because Plaintiffs are not entitled to overtime pay under the FLSA, and because Defendants' actions do not constitute retaliation, we affirm.
Plaintiffs are police officers assigned to the Wayne County, Michigan airport, which services much of Michigan's lower peninsula, including the entire Detroit metropolitan area. All employees of the airport police department were originally employees of the Wayne County Sheriff's Department until the Airport Authority was formed as a separate entity to operate the airport on March 26, 2002. Generally, Plaintiffs were scheduled to work a forty-hour workweek. If Plaintiffs wanted to work overtime, they would place their names on an overtime list and would be called to work according to seniority and/or their collective bargaining agreement, if and when overtime hours became available. An officer could refuse the overtime offered. Officers working overtime were paid overtime pay.
The Plaintiffs in this case are members of four specialty police units, including the Special Response Unit (SRU-SWAT), Explosive and Ordnance Disposal (EOD-Bomb Squad), K-9, and the Accident Investigation Unit (AI). Officers belonging to these specialty units receive extra "specialty pay." All officers in the four specialty units had to live within a close geographical area to the airport. Members of the K-9 and EOD-Bomb Squad units had to agree, as a condition of employment, to live within a thirty-minute travel time from the airport. SRU/SWAT officers are required to maintain reasonable availability when off duty.
Further, officers assigned to the four specialty units were required to carry digital pagers which operated on a state-wide basis. The pagers were to be carried both on and off duty and always turned on. K-9, SRU-SWAT, and EOD-Bomb Squad officers all agreed to respond to calls for service at all hours as a condition of being selected to the unit. Two Plaintiffs testified that they were orally counseled for not responding when paged, and other Plaintiffs testified they understood that failure to respond to an off-duty page would result in discipline.
Prior to September 11, 2001, Plaintiffs claim they generally could attend to their personal business while off duty, subject to responding when paged. However, immediately after the events of September 11, the officers were placed on twelve-hour shifts, seven days per week, and had their leave and vacation days cancelled. On September 21, the shifts were reduced to ten hours, six days per week. SRU-SWAT, K-9, and EOD-Bomb Squad officers were told that, when they were off duty, they had to stay close to home and be able to respond immediately should the need arise. This continued until November 26, 2001, when the officers went on a five-day per week schedule, ten hours per day, and were allowed to use their vacation time.
In October 2001, shortly after the terrorist attacks, Defendant Mark DeBeau was hired as the Director of Public Safety at the airport. He was directed to review his department's administrative functions and expenses. Due to his review, the airport considered a number of changes in its policing operations. Several of these policy changes were later implemented. Airport management issued specially-outfitted sports utility vehicles to each of its K-9 officers, and discontinued the payment of flat rate mileage for driving to and from work to those officers. Management also decided to freeze the accumulation and use of banked compensatory time, or "comp time," due to staffing problems caused by the September 11 terrorist attacks and resulting personnel requirements mandated by the federal government. Allowing officers to utilize comp time, in addition to vacation time, forced the airport to rely on (and pay for) overtime to compensate for their absences. Instead of paying officers comp time for certain activities, the airport decided that it would be less costly to pay its officers actual overtime pay. Later, the sport utility vehicles were returned to the airport and the flat rate mileage reimbursement policy was reinstated due to the dissatisfaction of the K-9 unit officers and their union.
In 2002, twenty-five officers filed suit against Wayne County seeking overtime pay under the FLSA. After the initial complaint was filed, airport management collected the pagers from all of its officers at the airport. Plaintiffs then amended their complaint to add a second count under 42 U.S.C. § 1983, alleging that the collection of all pagers was unlawful retaliation against them. Plaintiffs later added a retaliation claim under the FLSA for the changes implemented by the airport as recommended by Mark DeBeau. This appeal names Wayne County and the Wayne County Airport Authority as municipal defendants and DeBeau, Director of Public Safety, as a defendant individually and in his official capacity.1
We review a district court's grant of summary judgment de novo. Allen v. Michigan Dep't of Corrections, 165 F.3d 405, 409 (6th Cir.1999). Summary judgment is proper if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that 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).
Plaintiffs first claim that the district court erred in ruling that they failed to state a claim under the FLSA for overtime compensation. Their chief contention is that carrying pagers as required by the airport entitles them to overtime pay for all hours not at work that the pagers were worn.
The FLSA "provides that employees must be compensated at one and one-half times their regular rate for overtime work." Martin v. Ohio Turnpike Comm'n, 968 F.2d 606, 609 (6th Cir.1992) (citing 29 U.S.C. § 207(a)). Although the FLSA does not state whether time spent on call is working time, the Supreme Court has held that, under some circumstances waiting time is compensable. See Armour & Co. v. Wantock, 323 U.S. 126, 133, 65 S.Ct. 165, 89 L.Ed. 118 (1944); Skidmore v. Swift & Co., 323 U.S. 134, 136, 65 S.Ct. 161, 89 L.Ed. 124 (1944). Both Armour and Skidmore involved plaintiff firefighters required to spend approximately half of their time off in firehouses in order to respond quickly to alarms. The Court declined to rule definitively as to whether on-call time is working time; rather, those cases held that the result turns on whether an employee's time is spent predominantly for the employer's benefit or for the employee's, a question dependent upon all the circumstances of the case. Armour, 323 U.S. at 133, 65 S.Ct. 165.
Although the Armour and Skidmore plaintiffs spent their off-time on the employers' premises, this circuit has acknowledged that "an employee may be entitled to compensation even though he or she is on call at home or elsewhere." Martin, 968 F.2d at 609. In Martin, we held that "on-call time spent at home may be compensable if the restrictions imposed are so onerous as to prevent employees from effectively using the time for personal pursuits." Id. at 611. That case considered the claims of highway maintenance workers for overtime pay to compensate them for time spent away from work but on call and subject to telephone or pager summons from the employer. Id. at 607-08. The Martin plaintiffs, unlike Plaintiffs here, were designated as either on or off call, and on-call employees were summoned to work before off-call employees. The workers could determine the likelihood of being summoned by consulting the roster of employees who had worked the least amount of overtime to date. Id. During a three-year period, while there were 69 instances of discipline for failing to report when called, no employee was ever discharged for such a failure. Id. at...
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