Allen v. Board of Public Educ. for Bibb County

Decision Date17 August 2007
Docket NumberNo. 06-12131.,06-12131.
Citation495 F.3d 1306
PartiesAlicia ALLEN, Barbara Andrews, Melissa Braxton, Patricia Brown, Shirley Brown, Carolyn Finney, Norarene Gilbert, Veronica Jackson, Vera Long, James Mays, Sylvia Pettigrew, Earline Scott, Larose Smith, Patricia Stewart, Eleanor Welch, Essie Williams, Dorothy Woodford, et al., All individually and on behalf of all other similarly situated individuals, Plaintiffs-Appellants, v. The BOARD OF PUBLIC EDUCATION FOR BIBB COUNTY, Defendant-Appellee.
CourtU.S. Court of Appeals — Eleventh Circuit

Brent Jeffrey Kaplan, Meredith H. Ragains, Robins, Kaplan, Miller & Ciresi, LLP, Atlanta, GA, for Plaintiffs-Appellants.

Sherry Hall Culves, W. Warren Plowden, Jr., Sharon Hurt Reeves, Jones, Cork & Miller, LLP, Macon, GA, for Defendant-Appellee.

Appeal from the United States District Court for the Middle District of Georgia.

Before BIRCH and PRYOR, Circuit Judges, and COVINGTON,* District Judge.

COVINGTON, District Judge:

Plaintiffs brought this action against Defendant, the Board of Public Education for Bibb County, to recover for violations of the Fair Labor Standards Act. The district court granted summary judgment in favor of the Board, and this appeal followed. For the reasons set forth below, we affirm the district court's decision in part and reverse in part.


Plaintiffs are Defendant's employees or former employees. They are or were bus drivers, bus monitors or aides, paraprofessionals, secretaries, and custodians. Plaintiffs claimed that the Board failed to pay overtime wages and failed to pay the appropriate "regular rate" of pay in violation of the Fair Labor Standards Act. The bus drivers and monitors moved the district court for partial summary judgment, claiming that the Board's methodology for computing their regular rate of pay, and for computing overtime in general, violated the FLSA. The Board moved for summary judgment on all of Plaintiffs' claims and argued that its practices were in compliance with the FLSA.

The district court denied the motion for partial summary judgment filed by the bus drivers and bus monitors and granted the Board's motion for summary judgment. All plaintiffs now appeal the district court's grant of summary judgment and raise the following issues: (1) whether the district court erred in granting the Board's motion for summary judgment in connection with the claims of the bus drivers and bus monitors, where the bus drivers and bus monitors received different rates of pay depending on the type of route driven, and the overtime rates reflect the differing rates of pay; and (2) whether the district court erred in granting the Board's motion for summary judgment in connection with the claims of those Plaintiffs who assert that they have worked unpaid overtime hours.


The grant of summary judgment is subject to de novo review and the circuit court applies the same standard used by the district court. Elan Pharm. Research Corp. v. Employers Ins. of Wausau, 144 F.3d 1372, 1375 (11th Cir.1998).


As noted, this case involves two different groups of plaintiffs. The first group, which consists of bus drivers and bus monitors, alleges that the Board violated the FLSA by paying different rates for regular and other routes, and calculating overtime through the use of a blended rate. The second group, which consists of paraprofessionals, secretaries, custodians, bus drivers, and bus monitors, asserts that they worked uncompensated overtime in violation of the FLSA. Although both groups appeal from the district court's ruling on the Board's motion for summary judgment, the two have distinct facts and legal issues that are treated separately here.

A. Different Rates for Different Routes

The first issue we address is whether the district court erred in granting the Board's motion for summary judgment in connection with the claims of the bus drivers and bus monitors. Plaintiffs argue that the Board violated the FLSA when it paid a driver or bus monitor different rates of pay depending on the type of route driven. On a regular route, the rate of pay is based largely on the employee's years of service to the school. On an additional route, the rate of pay is set — a $6 per hour rate for field trips and a $7 per hour extended day rate that applies to everything other than the regular route and field trips. In its brief, the Board utilized the following example to explain its current pay policy of blending these rates when calculating overtime:

Bus drivers and aides earn straight time at the rate of pay applicable to the particular duty they are performing. For example, if a driver drives a regular route for 25 hours in a week, and the driver's rate of pay for regular-route work is $11.00 an hour, he will earn $275. If that driver also drives 15 hours of field trips during the same week, he will earn an additional $90 (15 hours × $6/hour). If the driver also cleans his bus for 1 hour, drives an after-school route (taking students home following an after-school program) for 5 hours, and attends a safety-meeting for 2 hours, he will earn an additional 8 hours of work at the extended day rate of $7 an hour for a total of $56. Therefore, in this example, the driver has worked a total of 48 hours in a week and earned a total of $421 straight time.

Because the driver in this hypothetical worked over 40 hours in the week, he is also entitled to 8 hours of overtime (or an additional 1/2 time). The overtime rate of pay is based on the blended (or weighted) rate of pay. The total straight-time compensation ($421) is divided by the total hours worked (48) to determine the blended rate of pay at which to pay the overtime. In this example, the blended rate is $8.77. Because this driver has already been paid straight time (or 1 time) for those 8 hours, he is entitled to ½ of the blended rate ($4.39) for a total additional overtime compensation of $35.12.

The district court found that this policy of paying different rates for different types of routes, and paying overtime based upon a blended rate, did not violate the FLSA because the routes constituted different types of work. While we disagree with the district court's analysis, we nonetheless affirm its grant of summary judgment for the Board on this issue because we believe that the Board's policy is in accordance with the FLSA.

When Congress enacted the Fair Labor Standards Act in 1938, its goal was to provide minimum wage and maximum hour protections for workers. Moreau v. Klevenhagen, 508 U.S. 22, 25, 113 S.Ct. 1905, 123 L.Ed.2d 584 (1993). By establishing a floor for wages and a ceiling for hours worked without overtime compensation, lawmakers attempted "to compensate those who labored in excess of the statutory maximum number of hours for the wear and tear of extra work and to spread employment through inducing employers to shorten hours because of the pressure of extra cost." Bay Ridge Operating Co. v. Aaron, 334 U.S. 446, 460, 68 S.Ct. 1186, 92 L.Ed. 1502 (1948). To that end, § 6 of the FLSA establishes that an employee must receive no less than the statutorily-set minimum wage and § 7 mandates that an employee who works for more than forty hours a week is entitled to overtime compensation equal to one and a half times his regular rate of pay. 29 U.S.C. §§ 206, 207.

In the present case, Plaintiffs argue that the Board has violated the FLSA's mandate that overtime be paid at one and a half times the regular rate. Specifically, they assert that the Board's policy of blending the rates for regular and other routes, and calculating overtime based on the blended rate, does not satisfy the FLSA. Plaintiffs cite to 29 U.S.C. § 207(g)1 and 29 C.F.R. § 778.115 for the proposition that the use of a blended rate is improper because different rates of pay and the resulting blended overtime rate are only permitted if the employee is engaged in two or more different types of work. We disagree.

We begin by noting that Plaintiffs' argument is predicated on their assumption that the rate paid by the Board for regular routes is their regular rate. Under the FLSA, the regular rate is derived from "all remuneration for employment paid to, or on behalf of, the employees." 29 U.S.C. § 207(e). For this reason, the rate of pay Plaintiffs receive for regular routes is only the regular rate when Plaintiffs do not drive any of the other types of routes or receive any other rate of pay. When a driver drives a combination of regular and other routes, and receives two different rates of pay, then the combined pay for those rates must be used in calculating all remuneration for employment. The total remuneration for employment is then divided by the total number of hours actually worked in that workweek. See 29 C.F.R. § 778.209; Overnight Transp. Co. v. Missel, 316 U.S. 572, 580 n. 16, 62 S.Ct. 1216, 86 L.Ed. 1682 (1942) ("[w]age divided by hours equals regular rate"). The number resulting from this equation is the employee's regular rate, and "the result . . . is unaffected by any designation of a contrary `regular rate' in the wage contracts," Walling v. Youngerman-Reynolds Hardwood Co., 325 U.S. 419, 424, 65 S.Ct. 1242, 89 L.Ed. 1705 (1945).

Section 7(g)(2) of the FLSA states that an employer does not violate the requirement that overtime payment be time and a half of the employee's regular rate, if:

the amount paid to the employee for the number of hours worked by him in such workweek in excess of the maximum workweek applicable to such employee under such subsection in the case of an employee performing two or more kinds of work for which different hourly or piece rates have been established, is computed at rates not less than one and one-half times such bona fide rates applicable to the same work when performed during non-overtime hours.

29 U.S.C. § 207(g)(2). Section 7(g)(2), therefore, alerts employers to an acceptable alternative method of calculating overtime...

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