Casserly v. State
| Decision Date | 22 October 1992 |
| Docket Number | No. 90CA1460,90CA1460 |
| Citation | 844 P.2d 1275 |
| Parties | , 1 Wage & Hour Cas.2d (BNA) 103 Jeffrey L. CASSERLY; Mary E. Cordell; Danny W. Englund; and William D. Tidwell, Plaintiffs-Appellees and Cross-Appellants, v. The STATE of Colorado; W.L. Kautzky, Director of the Department of Corrections; James A. Stroup, Controller of the State of Colorado, Defendants-Appellants and Cross-Appellees. . III |
| Court | Colorado Court of Appeals |
Cornish and Dell'Olio, Donna Dell'Olio, Colorado Springs, for plaintiffs-appellees and cross-appellants.
Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., John R. Parsons, Asst. Atty. Gen., Yvonne E. Scott, Asst. Atty. Gen., Denver, for defendants-appellants and cross-appellees.
Opinion by Judge METZGER.
Defendants, State of Colorado; W.L. Kautzky, Director of the Department of Corrections; and James A. Stroup, Controller of the State of Colorado, appeal the judgment which determined that they had violated the Fair Labor Standards Act and thereupon awarded overtime compensation and liquidated damages to the plaintiffs, Jeffrey L. Casserly; Mary E. Cordell; Danny W. Englund; and William D. Tidwell. Plaintiffs cross-appeal the amount of liquidated damages awarded and the trial court's application of a two-year statute of limitations. We affirm in part, reverse in part, and remand for further proceedings.
Plaintiffs were employed as physician assistants at the State Correctional Facility at Canon City, Colorado. Each plaintiff was assigned to a single facility for full-time duties requiring not less than 40 hours per week. In addition, on a rotating basis, each plaintiff was required to provide emergency medical services to inmates after regular working hours. Plaintiffs were compensated at one and one-half their regular rate of pay for those hours they were physically present at a facility responding to a call.
Before November 1988, plaintiffs were not paid for the time spent waiting for calls. After that time, defendants paid plaintiffs at a rate of $1.75 per hour as "on-call" pay.
During on-call periods, plaintiffs were required to respond to any of seven facilities covering an 8-mile radius within 20 minutes of receiving a call for services (if they determined that the call necessitated a physical response to a facility and could not be handled by telephone). The number and frequency of calls received during any on-call shift were not predictable.
The need to respond immediately to medical calls required plaintiffs to maintain a constant state of readiness. They did not engage in recreational activities during these hours, nor did they use this time for their own personal purposes. Plaintiffs testified that they did not shower, walk for recreation, cook meals, eat in restaurants, entertain guests, perform yard work, or attend sporting events during their on-call hours. Some plaintiffs rented motel rooms in Canon City in order to meet the response time requirements rather than going home during these shifts.
Plaintiffs claimed their time spent waiting for calls constituted hours worked pursuant to 29 U.S.C. §§ 201-219 (1988), the Federal Fair Labor Standards Act (FLSA), and that they should be compensated at a rate of time and one-half for all hours spent on-call in excess of their regular 40 hours per week.
Plaintiffs filed a formal grievance with defendants in March 1988 for overtime pay and supplied copies of state fiscal rules incorporating the provisions of the FLSA and affidavits detailing the restrictions imposed upon their lives while on -call. The grievance was denied.
Thereafter, plaintiffs commenced this action, alleging violations of the FLSA and breach of contract. The trial court entered summary judgment in favor of defendants and dismissed the contract claim. The FLSA claims were tried to the court, which entered judgment in favor of plaintiffs. It awarded damages of one and one-half times plaintiffs' hourly rate for on-call time from May 1, 1987, based on application of a two-year statute of limitations for non-willful violations of the FLSA. Defendants appeal the liability determination; plaintiffs cross-appeal the damages awarded. We will address only those issues raised in the parties' opening briefs. Vigoda v. Denver Urban Renewal Authority, 646 P.2d 900 (Colo.1982).
The defendants contend the trial court erred in failing to follow the terms of an agreement alleged to exist between the Department of Corrections and the plaintiffs regarding compensation for waiting time. They further contend the court erred in finding that this agreement was against public policy. We find no error.
Defendants assert that, in March 1988, the Department of Corrections officials and the plaintiffs had agreed that time spent waiting for calls would be compensated at $1.75 per hour, and time spent when plaintiffs physically traveled to a facility responding to a call would be compensated at time and one-half. Thus, they argue, the trial court erred in refusing to consider the impact of this agreement on plaintiffs' FLSA claims. We reject this contention.
The trial court found that any agreement by the plaintiffs to provide on-call services for the Department of Corrections was not an agreement to perform those services without the compensation required by law. It correctly determined that, as a matter of law, an agreement entered into in good faith cannot supersede the FLSA or be used as a defense against employees' claims. See Martino v. Michigan Window Cleaning Comp., 327 U.S. 173, 66 S.Ct. 379, 90 L.Ed. 603 (1945) ().
The FLSA's overtime requirement, 29 U.S.C. § 207 (1988), has two purposes: 1) to encourage employers to hire additional workers rather than employ fewer workers for longer hours; and 2) to compensate employees who do work overtime for the burden of having to do so. The Act "forbids pay plans that have the effect of reducing the pay for overtime to less than one and one-half times the employees' regular rate, even though the plans may be acceptable to the employees involved." Donovan v. Brown Equipment & Service Tools, Inc., 666 F.2d 148 (5th Cir.1982).
Given the nature of the demands on the plaintiffs during their waiting time, we conclude, as did the trial court, that any agreement to pay them $1.75 per hour (well below their average salary of nearly $18 per hour) would be contrary to the purpose of the FLSA and thus would violate public policy.
The defendants next contend that plaintiffs are exempt from the FLSA by virtue of 29 U.S.C. § 213 (1988), which excludes persons employed in a "professional capacity" from the overtime payment requirements. Defendants did not include this defense in either their answer or trial disclosure certificate. They now claim the trial court abused its discretion by denying their request at mid-trial to amend their answer and add this defense. In our view, no abuse occurred.
While leave to amend should be freely given, resolution of such issue is placed within the sound discretion of the court, and its decision will not be disturbed on appeal unless an abuse of discretion is shown. Jenkins v. Glenn & Helen Aircraft, Inc., 42 Colo.App. 118, 590 P.2d 983 (1979). The burden is on defendants to show that the trial court abused its discretion in refusing to allow an amendment of the answer at mid-trial. See Weaver Construction Co. v. District Court, 190 Colo. 227, 545 P.2d 1042 (1976).
In their answer, defendants asserted that plaintiffs failed to state a claim upon which relief could be granted. However, the answer made no mention of the affirmative defense of statutory exemption. Corning Glass Works v. Brennan, 417 U.S. 188, 94 S.Ct. 2223, 41 L.Ed.2d 1 (1974). A motion to amend the answer was never filed.
Rather, defendants attempted to introduce evidence at trial relevant only to the issue of the plaintiffs' status as professionals. Plaintiffs' counsel objected, at which point defense counsel requested the court's leave to amend the answer. This request was properly denied. Maxey v. Jefferson County School District No. R-1, 158 Colo. 583, 408 P.2d 970 (1965).
Moreover, affirmative defenses may not be raised by motion unless evidence concerning the defenses becomes available to the defendant between the time of filing the answer and the time of filing the motion. Markoff v. Barenberg, 149 Colo. 311, 368 P.2d 964 (1962); see also Bilar, Inc. v. Sherman, 40 Colo.App. 38, 572 P.2d 489 (1977). There is no indication that such was the case here.
Defendants, however, claim that, since plaintiffs' counsel prepared argument on this issue in plaintiffs' brief in opposition to defendants' summary judgment motion, there was no prejudice to plaintiffs in litigating this issue at trial. We disagree.
Defendants did not move to amend their answer until mid-trial. The court found that the defendants offered no justification for failing to amend their pleadings. The untimeliness of the motion and the remedial measures that would have been occasioned by its granting would have disrupted the trial proceedings and caused additional unwarranted delay and expense to the plaintiffs in the resolution of this action. See Koontz v. Rosener, 787 P.2d 192 (Colo.App.1989) ().
We conclude that, given the untimeliness of their request, the defendants have not met their burden in demonstrating an abuse of discretion by the trial court. See Conyers v. Lee, 32 Colo.App. 337, 511 P.2d 506 (1973).
Defendants next argue the trial court erred in awarding overtime compensation to the plaintiffs for the time spent waiting for calls. We find no error.
The FLSA requires the payment of time and one-half of an employee's regular rate of...
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