DeBraska v. City of Milwaukee

• Decision Date: 02 September 1999
• Docket Number: No. 98-4022,98-4022
• Citation: 189 F.3d 650
• Parties: (7th Cir. 1999) Bradley DeBraska, et al., Plaintiffs-Appellants, v. City of Milwaukee, Defendant-Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

Page 650

189 F.3d 650 (7th Cir. 1999)

Bradley DeBraska, et al., Plaintiffs-Appellants, v. City of Milwaukee, Defendant-Appellee.

No. 98-4022

United States Court of Appeals, Seventh Circuit

Argued April 14, 1999

Decided September 2, 1999

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 96-C-402--Myron L. Gordon, Judge.

Before Coffey, Flaum, and Easterbrook, Circuit Judges.

Easterbrook, Circuit Judge.

Almost 1900 current and former Milwaukee police officers, led by their union the Milwaukee Police Association, brought this suit against the City of Milwaukee under the Fair Labor Standards Act, 29 U.S.C. sec.sec. 201-19. Sixty percent of these plaintiffs, including the Union, also participated in a FLSA suit against the City that began in 1988 and was settled in 1990. Part of the settlement was a "Plaintiffs' Covenant as to Future Actions" promising not to relitigate the issues raised in the 1988 complaint or urge any other officer to do so. The primary contention in this case--that the City's rules for using compensatory time off must be modified--was raised and dropped without resolution in the first. Two secondary issues--whether sick leave time devoted to attending "predisciplinary" hearings count as work for FLSA purposes--are new. The district court held that claim preclusion (res judicata) prevents any police officer from litigating the compensatory-time question that was dropped in the first case, and that hours on sick leave or in "predisciplinary" hearings are not compensable. 11 F. Supp. 2d 1020 (E.D. Wis. 1998). We tackle the new contentions before taking up the question whether the compensatory- time issue remains open to litigation.

Milwaukee requires officers on sick or injury leave to remain at home unless they obtain permission, which is readily granted for purposes such as attending a doctor's appointment, purchasing food, attending religious services, and exercising under medical direction. According to the plaintiffs, time at home is like "on call" time, for which employees must be compensated if personal activities are severely restricted. See Dinges v. Sacred Heart St. Mary's Hospitals, Inc., 164 F.3d 1056 (7th Cir. 1999); 29 C.F.R. sec.785.16. On plaintiffs' view, sickness produces not simply a day's pay, but four days' pay--regular pay for eight hours (the current situation), plus overtime pay for the other sixteen (8 + (16 x 1.5) = 32 hours' pay per day sick or injured, which goes up at double-time rates for weekends). The district court rejected this contention because plaintiffs failed to prove that their activities were severely restricted by the limitation; they respond that house arrest is restriction enough (and that, in any event, the district court improperly discounted two affidavits). Milwaukee asks us to affirm on a different ground: that the Act and its regulations do not mention sick leave, so an employer can attach any conditions it wants. That can't be so. Employers could not, for example, insist that as a condition of sick leave employees abandon their entitlement to overtime pay for the rest of the year.

Nonetheless, we think that the district judge is right, for a simple reason: sick and injured officers are not fit to work, are not "engaged to wait" at home for work, and therefore are not working. Compare Armour & Co. v. Wantock, 323 U.S. 126 (1944), with Skidmore v. Swift & Co., 323 U.S. 134 (1944). A police department may define compensable sickness or injury as a condition sufficiently severe that it requires a person to stay at home. An officer who claims to be sick or injured to that extent, and therefore unable to work, may be required to behave in accord with the representation that led the City to grant the leave. It is the physical limitations that confine the officer to home; all the Police Department does is demand that officers end their leave, and come back to work, when they are at last able and eager to roam about like healthy people.

Pay for disciplinary hearings is our next subject. Milwaukee holds two before disciplining an officer. The first or preliminary hearing is a simple affair, of the kind contemplated by Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985). The second is formal. Time spent "adjusting grievances" at work is compensable. 29 C.F.R. sec.785.42. The City concedes that under this regulation the formal disciplinary hearing counts as work. Its approach to the preliminary hearing, by contrast, has fluctuated. If an oral preliminary hearing was held during an officer's duty shift, then the City treated hearing time as work time. If an oral preliminary hearing was held at another time, however, the City did not treat it as work; in Milwaukee's view an officer's attendance was voluntary (the City did not require the officer to attend and was delighted if he did not) and therefore on his own time. In December 1996, after the officers filed this suit demanding compensation, the City ended all oral preliminary hearings. Today officers are allowed to submit written explanations, an option contemplated by Loudermill, 470 U.S. at 546, and the City does not compensate officers for time spent drafting. The district court held that none of the time devoted to the preliminary hearing is compensable, whether the officer participates orally or in writing, because Milwaukee does not require the officer to participate or control the officer's use of time for his own purposes while the hearing is ongoing.

Plaintiffs respond that on the district court's (and Milwaukee's) approach even the formal, dispositive hearing would not be compensable, a conclusion that would contradict 29 C.F.R. sec.785.42. If, as some of its language suggests, sec.785.42 is limited to grievances adjusted during an employee's regular shift, there is no contradiction, for Milwaukee always has compensated officers for time devoted to hearings during their scheduled work time. An employee who voluntarily invests additional time can't demand that the employer pay him for self-appointed (and wholly self-interested) efforts. That this is the right way to understand sec.785.42 is implied by another regulation, which defines "voluntary." Attendance at meetings "is not voluntary in fact if the employee is given to understand or led to believe that his present working conditions or the continuance of his employment would be adversely affected by nonattendance." 29 C.F.R. sec.785.28. Because the outcome of a preliminary inquiry does not adversely affect either working conditions or the continuation of employment--and because Milwaukee does not draw an adverse inference from the submission of a written statement instead of an oral one--the officer's physical presence at the preliminary hearing was "voluntary" under this definition (though appearance at the formal, final hearing would not be "voluntary" by this standard). By failing to attend a predisciplinary hearing, an officer does not forfeit anything: the hearing still takes place, the commanding officer must attend, and the charged officer does not lose any right to present his case in writing or to avail himself of any later procedures. Although the officer has forgone an opportunity to better his situation, the law does...