Debraska v. City of Milwaukee
| Decision Date | 26 September 2000 |
| Docket Number | No. 96-CV-402.,96-CV-402. |
| Citation | 131 F.Supp.2d 1032 |
| Parties | Bradley DEBRASKA, et al. Plaintiffs, v. CITY OF MILWAUKEE, Defendant. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Michael T. Leibig, Zwerdling Paul Leibig Kahn, Thompson & Wolly, Alexandria, VA, Laurie A. Eggert, Eggert Law Offices, Milwaukee, WI, for Plaintiffs.
Gregory Powell, Milwaukee City Attorney's Office, Milwaukee, Rudolph M. Konrad, Stuart Mukamal, Milwaukee City Attorney's Office, Milwaukee, WI, for Defendants.
DECISION AND ORDER
The Fair Labor Standards Act ["FLSA"], 29 U.S.C. § 201 et seq., permits States and their political subdivisions, unlike private employers, to pay their employees for overtime by granting them compensatory time or "comp time" (time off work with full pay) instead of cash. § 207(o). Once an employee has earned comp time, the Act grants the employee a qualified right to use the time off when he chooses. The state or municipal employer must grant an employee's request "to use such time within a reasonable period after making the request if the use of the compensatory time does not unduly disrupt the operations of the public agency." § 207(o)(5).
The plaintiffs, almost 1900 current and former Milwaukee police officers, contend that the defendant, the City of Milwaukee, violates this provision by turning down requests for comp time on occasions when granting the request would not cause undue disruption. The city's policy is to turn down requests to use comp time if granting the request would require it to pay replacement officers overtime or to call in replacements from another shift or precinct. The city argues that this policy does not violate the FLSA because whenever it cannot grant requests to use comp-time on the specific date requested, it allows the use of comp time on an alternative date within one week of that date. Thus the requests to use comp time are granted within a "reasonable period", the city contends, and for this reason the court need not consider the issue of undue disruption.
The parties raised this issue previously in cross motions for summary judgment on the issue of liability, but I declined to address the merits on grounds of claim preclusion and granted the defendant's motion for summary judgment. The court of appeals for the seventh circuit has reversed that determination and remanded the case for a decision on the issue. DeBraska v. City of Milwaukee, 189 F.3d 650, 654 (7th Cir.1999). At this court's invitation, the Secretary of Labor has filed an amicus brief, in which it agrees with the plaintiffs' interpretation of the statute. The court thanks the Secretary and the parties for the high quality of their briefs.
The second and final issue for the court to decide, at the direction of the court of appeals, is whether the Milwaukee Police Association ["MPA"] violated a 1990 settlement agreement with the city by litigating the comp time claim. This decision addresses these two issues.
The city, with the agreement of the MPA, has exercised the option of using comp time instead of cash to pay police officers for overtime. Thus the officer who works eight hours of overtime gets twelve hours off at full pay. The city's procedure for handling requests to use accumulated comp time is set forth in its collective bargaining agreements covering the period from 1991-1997 [the "agreements"]. It appears that the same system is in effect now.
According to the agreements, an officer who wants to use comp time must give "reasonable advance notice" to his commanding officer of his request, specifying the particular dates he wants to take off. The agreements give the commanding officer discretion to grant or deny the request, and such officer may grant the request only if the dates requested are "available ... in accordance with the needs of the Police Service". The commanding officer's decision is final. Competing requests for using comp time are resolved on a "first-come, first-serve basis".
Police officers typically request the use of comp time in the same manner as a request to use "additional time off". Depending on seniority, officers are entitled to between 126 and 141 "off-days" per year, including "regular off-days", "holiday off-days", pre-selected vacation days, and additional time-off.
Each division and bureau of the department has established its own staffing level goals and requirements, based upon their particular needs. For example, the Patrol Bureau, comprising about 60% of all nonsupervisory officers, has a staffing level goal that 55% of its officers should be on-duty and working at any given time on any given day. The Patrol Bureau also has a "maximum percentage goal" that no more than 8-11% of its officers should be off on vacation or through the use of comp time at any given time on any given day. Staffing level goals are subject to upward adjustment based on special events, emergencies, or other unforeseen circumstances. Staffing requirements and needs are based on work schedules, anticipated work loads, and similar factors.
Requests for additional time off are denied if granting the request would cause the particular division or bureau to fall below its staffing goals. Otherwise such requests are granted, provided there are no special circumstances requiring more officers to remain on duty. When such requests are granted, the officer chooses how he wishes to account for the time, for example, by using vacation time or accumulated comp time. When the supervisor or commanding officer concludes that a requested date is unavailable, he is almost always able to offer the requesting officer an alternative date within one week of the date requested.
The city will not grant a request to use comp time if doing so would require it to call in another officer to work overtime. The city also declines to call in an officer from another shift or location in order to grant a request to use comp time.
Title 29 U.S.C. § 207(o)(5) provides:
An employee ...
(A) who has accrued compensatory time off ..., and
(B) who has requested the use of such compensatory time,
shall be permitted by the employee's employer to use such time within a reasonable period after making the request if the use of the compensatory time does not unduly disrupt the operations of the public agency.
The plaintiffs contend that rather than following the "unduly disrupt" standard set forth above, the city automatically denies comp time requests whenever granting them would require another officer to work overtime or would necessitate calling in a replacement officer from another shift or precinct.
The city argues that its policy does not violate § 207(o)(5) because it always grants requests to use comp time "within a reasonable period". Even if the defendant denies a request for particular day(s) off, it almost always offers an alternative time within one week of the requested date(s). Therefore, according to the city, it grants comp time requests within a reasonable period, and thus there is no need to consider the issue of undue disruption.
Which party is correct depends on what "reasonable period" means. If the phrase refers to the time period between the date the employee requests off and the date the city will actually allow him to take off, as the city suggests, then the city prevails. The plaintiffs and the Secretary, on the other hand, argue that "reasonable period" means that the employee must give adequate notice that he wants to use comp time on a particular day, thereby giving the employer time to plan and to determine whether the request can be granted. If this interpretation is correct, then once the employee gives the employer a reasonable period within which to grant the request, the employer must do so unless undue disruption would result.
The language of the statute is somewhat ambiguous. This is perhaps best illustrated by considering, with the benefit of hindsight, how the statute could have been better written to reflect either one of the competing interpretations advanced by the parties. While both readings are plausible, I believe that the more reasonable interpretation is the one advanced by the plaintiffs and the Secretary.
The Secretary's view is consistent with the Department of Labor's implementing regulations, which are entitled to considerable deference. Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) (); accord Christensen v. Harris County, 529 U.S. 576, 120 S.Ct. 1655, 1662, 146 L.Ed.2d 621 (2000). In addition, the Secretary has spoken more directly on the specific issue presented here in the preamble to those regulations, a 1994 opinion letter of the Department's Wage and Hour Administrator, and in her amicus brief in the present case. The interpretations contained in these latter sources are entitled to less deference than the interpretation contained in formal regulations. Christensen, 120 S.Ct. at 1662-63. Ordinarily, these less formal interpretations are entitled to "respect", but only if they "have the power to persuade". Id. at 1663 (internal quotation marks omitted). However, an agency's interpretation of its own regulation, when such regulation is ambiguous, is entitled to more deference. Id.; Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997) ().
I turn to the regulations first. The Secretary's regulation implementing § 207(o)(5) is contained in 29 C.F.R. § 553.25. Two subsections are relevant here. Subsection (c) states:
Reasonable Period. (1) Whether a request to use compensatory time has been granted within a "reasonable period" will be...
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