Brekke v. City of Blackduck

Decision Date28 March 1997
Docket NumberNo. CIV. 6-95-163(RLE).,CIV. 6-95-163(RLE).
Citation984 F.Supp. 1209
PartiesSharon BREKKE, Plaintiff, v. CITY OF BLACKDUCK, Defendant.
CourtU.S. District Court — District of Minnesota

Susan Anderson McKay, McKay Law Office, Bemidji, MN, for Plaintiff.

Larry Charles Minton, Minton Law Office, Hibbing, MN, for Defendant.


ERICKSON, United States Magistrate Judge.

I. Introduction

This matter came before the undersigned United States Magistrate Judge pursuant to the consent of the parties, as authorized by Title 28 U.S.C. § 636(c)(3), upon the Defendant's Motion for Summary Judgment.

A Hearing on the Motion was conducted on September 5, 1996, at which time the Plaintiff appeared by Susan A. McKay, Esq., and the Defendant appeared by Larry C. Minton, Esq.

For reasons which follow, the Defendant's Motion is granted in part, and denied in part.

II. Factual and Procedural History

The Plaintiff is a Licensed Practical Nurse and a State-certified Emergency Medical Technician ("EMT"). The Defendant is a political subdivision of the State of Minnesota. At all relevant times, the Defendant owned and operated the Blackduck Ambulance Service ("Ambulance Service"), whose purpose it was to provide ambulance assistance to the residents of Blackduck. In 1981, the Plaintiff began working for the Ambulance Service, in a part-time capacity, as a "volunteer."1 On June 4, 1985, at a Blackduck City Council ("City Council") meeting, the Plaintiff was hired as the Ambulance Service's full-time "Ambulance Director," and she began serving in that capacity on the following day.2 The need for, and the particulars of the position were detailed in the following job description, which was contemporaneously promulgated by the City Council:

Due to a severe shortage of daytime personnel, the Blackduck Ambulance Association3 is recommending the employment of a full-time person to be available to answer daytime calls. This would be a 40-hour a week position over five days with serving the other four hours a day covered on a voluntary basis. Schedules will be worked out to cover weekends, holidays and vacations.

After conferring with council members, the following job description was agreed upon:

A valid EMT Certificate must be maintained, must be available to respond to all calls while on duty for 8 hours a day, five days a week. This person will be available to cover the other four hours a day on a voluntary basis. Be available to the city for general labor at all other times.

Affidavit of Sharon Bunker, fka Brekke, Exhibit 6.

As a beginning salary for this position, the Plaintiff was to receive "$5.00 an hour for general labor,4 [and] $7.00 an hour when on ambulance calls." Id. The Plaintiff's hourly wage was periodically increased during her employment as the Ambulance Director and, at the time that the Ambulance Service was closed, she was being compensated at a rate of $10.37 an hour.5

The Plaintiff retained the position of Ambulance Director until April 18, 1995, when the City Council voted to discontinue the Ambulance Service. From its inception, her position required that she serve as the Ambulance Service's primary EMT, and that she coordinate the scheduling of the staff of volunteers. Due to the frequent turnover in the roster of volunteers, the number of available volunteers tended to fluctuate, from a figure as low as eight, to as many as fifteen. In addition, as an apparent condition for State licensing, each volunteer was required to hold a valid State EMT certification. As a result, during the period from 1985 to 1993, in order to assure an adequate staff of volunteers, the Plaintiff would conduct annual EMT initial training courses and, occasionally, supplemental "refresher" courses. Since these courses required an additional expenditure of City funds, the Plaintiff originally sought the City Council's approval prior to conducting a new class but, on July 18, 1989, the City Council passed a resolution which allowed the Plaintiff to conduct the classes without pre-authorization, so long as she kept the City Council "informed as to the classes." Affidavit of Susan McKay, Exhibit 4.

As we have noted, on her regular work days, the Plaintiff was required to "volunteer" so as to cover, on an on-call basis, an additional four hours which, apparently, included the two-hour periods that immediately preceded, and directly followed, her scheduled shift. Furthermore, because of difficulties in obtaining volunteer coverage for certain of the weekend and holiday shifts, the Plaintiff was frequently called upon to "volunteer" in order to cover these shifts as well. As was the case with the other volunteers, while on-call, the Plaintiff was required to wear a paging device, which emitted an audible signal which would alert her to an emergent request for ambulance service. To facilitate a prompt response to such a request, while on-call, the Ambulance Service personnel were required to remain within a certain geographic radius of the Ambulance Service' garage. At the commencement of the Plaintiff's employment as the Ambulance Director, this radius was limited to two miles but, later, the radius was increased to three, and then five miles. Ultimately, for the final year of the Ambulance Service's operation, the area was increased to a radius of ten miles from the garage. On-call personnel were not required to respond to a page within a set period of time and, aside from the geographic restriction, the only limitation that the on-call status placed upon the volunteer's personal activities, was that they could not become intoxicated during their shifts.

As a consequence of the on-call component to her job description, the Plaintiff frequently worked more than 40 hours in a week's period. On June 20, 1989, the Plaintiff informed the City Council that, since the date of her hire, and continuing through to that time, she had amassed a significant number of work hours, which exceeded 40 hours per work week, and which had not been compensated at overtime rates. When she requested reimbursement for the lost overtime pay, the City Council opted to pay her a lump sum which represented $7.00—the volunteer wage—for each hour of accumulated "overtime." Notwithstanding this lump sum payment, for the remainder of the Ambulance Service's existence, the Plaintiff was often compelled to work more than 40 hours a week, as a result of the Ambulance Service's continuing staffing problems. The City attempted to rectify this problem through a variety of means. At first, the Plaintiff was instructed to take "compensatory time" in lieu of overtime pay.6 This solution proved unworkable, however, because the Plaintiff was unable to use her compensatory time, as she could not locate volunteers who were willing to cover her regular daytime shifts. At other times, she was paid the volunteer rate of $7.00 per hour, for those portions of her on-call shifts when she was involved in actual ambulance runs and, on other occasions, she was instructed not to schedule herself for any hours—volunteer or otherwise —which would exceed a regular 40 hour work week.7 Despite these measures, the issue of compensation, for the Plaintiff's excess hours, was never resolved to the parties' mutual satisfaction.

The Record reflects that, as early as February of 1992, the City Council became sufficiently concerned with the operations of the Ambulance Service that it considered several means by which the Service could be "revamped" or "reorganized." Affidavit of Susan McKay, Exhibits 9 and 11. Among the measures considered at that time was the possible sale of the Ambulance Service to a private party. In addition, the City Council debated the feasibility of creating a committee, or some similar entity, to oversee the performance of the Ambulance Service. For most of the period in which she had served as the Ambulance Director, the Plaintiff reported directly to the City Council. On July 20, 1993, however, at the suggestion of Vernon Beighley ("Beighley"), an Ambulance Service volunteer and a member of the Ambulance Association, the City Council established the Ambulance Executive Board ("Executive Board"), "for the purpose of governing the [A]mbulance [S]ervice." Affidavit of Sharon Bunker, fka Brekke, Exhibit 6. Thereafter, the Executive Board—which was comprised of six members, inclusive of both Beighley and the Plaintiff—had direct supervisory authority over the Ambulance Service and, as a consequence, the Plaintiff reported directly to the Executive Board, rather than to the City Council. As a result of this new supervisory regime, the Plaintiff was required to obtain the approval of the Executive Board before she could teach any new EMT volunteer training courses. In early 1994, the Plaintiff sought the Executive Board's permission to begin instructing new volunteers, but the Executive Board and, later, the City Council, chose not to authorize the proposed training sessions, and the Plaintiff did not instruct any new volunteers after 1993.

In June of 1993, at approximately the same time as the formation of the Executive Board, the Plaintiff's job description was expanded to include a series of new duties, which chiefly involved billing, accounting, and record keeping. Consistent with her earlier job description—which required that she perform "general labor"—this new job description reflected that, "[a]fter fulfilling the job responsibilities of the [Ambulance Director]," the Plaintiff was to make herself "available to the City of Blackduck for miscellaneous job responsibilities." Affidavit of Sharon Bunker, fka Brekke, Exhibit 8. Consistent with this express job requirement, the Plaintiff made herself available to perform general municipal maintenance duties, such as cleaning the City park. The Plaintiff attests, however, that, on January 4, 1994, when she reported for work at the...

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