Bowman v. City of Indianapolis, IP 91-785 C.

• Decision Date: 22 November 1994
• Docket Number: No. IP 91-785 C.,IP 91-785 C.
• Citation: 885 F. Supp. 1152
• Parties: David B. BOWMAN, Plaintiff, v. The CITY OF INDIANAPOLIS, et al., Defendants.
• Court: U.S. District Court — Southern District of Indiana

885 F. Supp. 1152

David B. BOWMAN, Plaintiff, v. The CITY OF INDIANAPOLIS, et al., Defendants.

No. IP 91-785 C.

United States District Court, S.D. Indiana, Indianapolis Division.

November 22, 1994.

Shannon B. Adams-Bowman, Indianapolis, IN, for plaintiff.

Frederick A. Roetter, Office of Corp. Counsel, Indianapolis, IN, for defendants.

ENTRY

BARKER, Chief Judge.

David B. Bowman ("Bowman") and the City of Indianapolis, et al. ("Defendants"), bring cross motions for summary judgment. For the reasons stated below, we grant Defendants' motion for summary judgment in part and deny it in part and deny Plaintiff's motion for summary judgment as to both counts.

I. BACKGROUND

Plaintiff Bowman joined the Indianapolis Police Department ("IPD") on October 7, 1963, and during the relevant time period of his employment, held the positions of field lieutenant, field captain, and coordinator at the Municipal Garage from April, 1986, through August, 1989. The Defendants named in Bowman's amended complaint are: the City of Indianapolis, Stephen Goldsmith, the Mayor of Indianapolis, Paul Annee, who served as Chief of Police during the events in question, James Toler, current Chief of Police, James Campbell, Deputy Chief of Operations, Cicero Mukes, Richard Dorsey, Jack Sandlin, and Michael Zunk, all of whom were police officers in the IPD. On April 19, 1986, IPD issued General Order No. 20.03¹ under which all sergeants, lieutenants, and captains were classified as exempt executive or administrative employees who are not subject to the overtime requirements of the Fair Labor Standards Act ("FLSA"). Because Bowman was classified as exempt, he received no overtime pay for the hours that he worked beyond a normal 40 hour work-week. Bowman claims that he consistently worked more than 40 hours per week without additional compensation.

Around 1972, Bowman began working part-time for Mel Simon & Associates. Bowman encountered few problems with his parttime work until 1988, when Michael Zunk reported to Paul Annee, Bowman's superior officer, that Bowman had submitted misleading records indicating that he was working for IPD, when in fact, he was working at his part-time job. After Annee referred the work hours conflict to the Prosecutor's office, Bowman was indicted on one count of attempted theft, five counts of theft and six counts of official misconduct. In March, 1988, Annee suspended him for six months without pay. When Bowman returned from his suspension, he was assigned to be a coordinator at the Municipal Garage. On July 18, 1989, a jury convicted Bowman of one count of theft and four counts of official misconduct and acquitted him of three counts of theft, two counts of attempted theft, and two counts of official misconduct. After his conviction, Bowman unwillingly resigned from the police force on August 19, 1989. See Amended Complaint, at ¶ 62.

Bowman now alleges that during the time periods in which General Order 20.03 was effective, he was a non-exempt employee under the Fair Labor Standards Act ("FLSA") and thus was entitled to overtime compensation; moreover, he claims that Defendants misrepresented his status under the FLSA, thus costing him his job and other damages. His amended complaint filed on June 29, 1993, alleges two counts based on the FLSA and common law fraud. Both sides now move for summary judgment as to all counts.

II. DISCUSSION

A. Summary Judgment Standards

Under Rule 56(c) of the Federal Rules of Civil Procedure, 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 a judgment as a matter of law." Fed.R.Civ.Proc. 56(c). While the burden rests squarely on the party moving for summary judgment to show "that there is an absence of evidence to support the nonmoving party's case", Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986), the nonmoving party responding to a properly made and supported summary judgment motion still must set forth facts showing that there is a genuine issue of material fact and that a reasonable jury could return a verdict in its favor. See Wolf v. City of Fitchburg, 870 F.2d 1327, 1329 (7th Cir.1989); Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.1983), cert. denied, 464 U.S. 960, 104 S.Ct. 392, 78 L.Ed.2d 336 (1983). "The moving party is `entitled to a judgment as a matter of law' if the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). If doubts remain, however, as to the existence of a material fact, then those doubts should be resolved in favor of the nonmoving party and summary judgment denied. See Wolf, 870 F.2d at 1330.

B. FLSA Claim

The FLSA forbids an employer from employing any employee "for a workweek longer than forty hours unless such employee receives compensation ... at a rate not less than one and one-half times his or her regular rate." 29 U.S.C. § 207(a)(1). The FLSA exempts "any employee employed in a bona fide executive, administrative, or professional capacity ... or in the capacity of outside salesman (as such terms are defined and delimited from time to time by regulations of the Secretary of Labor ...)." 29 U.S.C. § 213(a)(1).² Because "exemptions to the FLSA must be narrowly construed in order to further Congress' goal of providing broad federal employment protection," see McDonnell v. City of Omaha, Nebraska, 999 F.2d 293, 295 (8th Cir.1993) (citing Mitchell v. Lublin, McGaughy & Assoc., 358 U.S. 207, 211, 79 S.Ct. 260, 263-64, 3 L.Ed.2d 243 (1959)), Defendants bear the burden of proving the applicability of the exemption. See Corning Glass Works v. Brennan, 417 U.S. 188, 196-97, 94 S.Ct. 2223, 2229, 41 L.Ed.2d 1 (1974); Alex v. City of Chicago, 29 F.3d 1235, 1243 n. 7 (7th Cir.1994); Abshire v. County of Kern, 908 F.2d 483, 485-86 (9th Cir.1990).

"To fit within the overtime-exempt category for administrative or executive employees, an employee must meet both parts of a two-part test. The first part is a `duties test.' The second part is a `salary test.'" Service Employees Intern. Union Local 102 v. San Diego, 35 F.3d 483, 486 (9th Cir.1994) (quoting Barner v. City of Novato, 17 F.3d 1256, 1259-60 (9th Cir.1994)).

1. Duties Test

The requirements of the duties test are set forth extensively in 29 C.F.R. § 541.1 et seq.³ The parties do not dispute that from April, 1986, until his assignment to the Municipal Garage in September, 1988, Bowman's duties met the requirements of the duties test. However, with regard to Bowman's employment at the Municipal Garage from September, 1988, to August, 19, 1989, the Court finds material facts in controversy as to whether Bowman's duties satisfied the duties test for purposes of determining his exempt or non-exempt status. Plaintiff contends that his assignment as a Coordinator at the Municipal Garage lacked any management duties. Defendants point to evidence in the record suggesting that Bowman possessed administrative responsibilities. The Court finds summary judgment as to this portion of Bowman's FLSA claim inappropriate and denies both parties' motions.

2. Salary Test

The second test that Bowman must meet to be classified as exempt from the FLSA's requirements is the "salary test" promulgated by the Department of Labor ("DOL") in 1954. The salary test provides that to qualify as an executive, administrator, or professional subject to the exemption, an employee must be compensated on a genuine salary basis, see 29 C.F.R. § 541.118(a),⁴ which means that the employee's compensation is not subject to reduction based on the "quality or quantity of the work performed." See Hurley v. State of Or., 27 F.3d 392, 394 (9th Cir.1994). Failure to satisfy the salary test alone normally results in the loss of the exemption. See Abshire v. County of Kern, 908 F.2d 483, 484-85 (9th Cir.1990), cert. denied, 498 U.S. 1068, 111 S.Ct. 785, 112 L.Ed.2d 848 (1991).

The facts of this case suggest that Bowman's compensation was "subject to reduction because of variations in the ... quantity of the work performed." Bowman was suspended because he was working simultaneously for another employer while collecting pay for that time from IPD. Several courts have concluded that reductions in salary made for infractions of other types of rules constitute reductions based on the quantity and quality of an employee's work. See e.g., Klein v. Rush-Presbyterian-St. Luke's Medical Ctr., 990 F.2d 279, 285 (7th Cir.1993) (employer found to have violated overtime provision of FLSA by classifying as exempt a nurse who was suspended for non-safety reasons); Shockley v. City of Newport News, 997 F.2d 18, 25 (4th Cir.1993) (disciplinary reductions in pay, other than for violations of major safety rules, constitute reductions in pay based on the quantity and quality of an employee's work); Hurley v. State of Oregon, 27 F.3d 392 (9th Cir.1994) (police officers were not "salaried" employees because their pay could be reduced for disciplinary violations and were thus entitled to overtime pay). Thus, based on the weight of authority, were this Court to apply the "salary test," the reduction in Bowman's pay would make him a non-salaried, non-exempt employee.

However, in this case, Defendants contend that the salary test is invalid as to public sector employers because it is contrary to the FLSA and congressional intent. Under the Administrative Procedure Act ("APA"), courts reviewing agency action will "hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). In Chevron U.S.A. v. Natural...