Debrecht v. Osceola County

• Citation: 243 F.Supp.2d 1364
• Decision Date: 07 February 2003
• Docket Number: No. 601CV1458ORL18JGG.,601CV1458ORL18JGG.
• Parties: Timothy DEBRECHT, Donald Bell, and Samuel Jackson, Plaintiffs, V OSCEOLA COUNTY, Defendant.
• Court: U.S. District Court — Middle District of Florida

243 F.Supp.2d 1364

Timothy DEBRECHT, Donald Bell, and Samuel Jackson, Plaintiffs,

V

OSCEOLA COUNTY, Defendant.

No. 601CV1458ORL18JGG.

United States District Court, M.D. Florida, Orlando Division.

February 7, 2003.

COPYRIGHT MATERIAL OMITTED

Robert A. Sugarman, Sugarman & Susskind, P.A., Coral Gables, FL, for Timothy

Debrecht, Donald Bell, Samuel Jackson, plaintiffs.

Joyce Ackerbaum Cox, Akerman, Senterfitt & Eidson, P.A., Orlando, FL, for Osceola County, defendant.

ORDER

G. KENDALL SHARP, Senior District Judge.

THIS CAUSE comes before the Court upon Defendant's motion for summary judgment (Doc. 32) to which Plaintiffs have responded in opposition (Doc. 44).

I. BACKGROUND

Timothy Debrecht, Donald Bell, and Samuel Jackson ("Plaintiffs") filed this action pursuant to the Fair Labor Standards Act ("FLSA"), seeking damages for unpaid overtime compensation and injunctive relief for alleged retaliation. 29 U.S.C. §§ 207, 215.

Plaintiffs are employed by Osceola County ("Defendant") as Battalion Chiefs of the Emergency Services Department.¹ Plaintiffs allege they are required to work excessive hours without overtime compensation in violation of the FLSA. They further allege that in retaliation for pursuing their rights under the FLSA, Defendant reduced their rates of pay, reduced their sick leave sell-back compensation, and altered the terms and conditions of their employment.

II. LAW

Rule 56(c) of the Federal Rules of Civil Procedure states the standard to be applied in summary judgment motions: "The judgment sought shall be rendered forthwith 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." Summary judgment "may be entered only where there is no genuine issue of material fact." City of Delray Beach v. Agric. Ins. Co., 85 F.3d 1527, 1529 (11th Cir.1996). A material fact is one that might affect the outcome of the suit under governing law. Mulhall v. Advance Sec, Inc., 19 F.3d 586 (11th Cir.1994). A dispute over a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The moving party bears the initial burden to show that no genuine issue of material fact remains for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The movant satisfies its burden when it demonstrates that the "facts underlying all the relevant legal questions raised by the pleadings or otherwise are not in dispute." Delray Beach, 85 F.3d at 1530. The burden then shifts to the nonmoving party to go beyond the pleadings and set forth specific facts showing that there is a genuine issue for trial. Celotex, 477 U.S. at 324, 106 S.Ct. 2548. The nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); it "must present affirmative evidence in order to defeat a properly supported motion for summary judgment." Anderson, 477 U.S. at 257, 106 S.Ct. 2505.

A district court, in applying this standard, should view the evidence and its factual inferences in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Any reasonable doubt about the facts should be resolved in favor of the non-movant. Delray Beach, 85 F.3d at 1530. However, the court must avoid weighing conflicting evidence or making credibility determinations. "If the record presents factual issues, the court must not decide them; it must deny the motion and proceed to trial." Id,

III. APPLICATION

Section 207(a)(1) of the Fair Labor Standards Act requires that employees be paid time and a half for work over forty hours per week. 29 U.S.C. § 207(a)(1). Section 213(a)(1), however, exempts from that requirement "any employee employed in a bona fide executive, administrative, or professional capacity." 29 U.S.C. § 213(a)(1). Osceola County treats all of its Battalion Chiefs as exempt under the provision. Defendant seeks summary judgment on the ground that Plaintiffs are subject to the FLSA's exemption, and thus, not entitled to receive overtime compensation. Plaintiffs oppose summary judgment arguing they are not employed in such a capacity and should not be treated as exempt.

Exemptions under the FLSA are to be construed narrowly against the Defendant, Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 594 (11th Cir.1995), and Defendant bears the burden of proving that Plaintiffs qualify for the exemption. Atlanta Prof'l Firefighters Union, Local 134 v. City of Atlanta, 920 F.2d 800, 804 (11th Cir.1991). Defendant argues that Plaintiffs qualify for exempt status because they are bona fide executive and/or administrative employees. (Doc. 33 at 2.) There are two tests for determining whether the Plaintiffs so qualify: the "short test" and the "long test." Atlanta Prof I Firefighters Union, 920 F.2d at 804.

"[A]n employer seeking to establish an exemption first seeks to qualify under the `short test;' if that effort fails, the `long test' is used." Id. at 805. Defendant seeks to establish that Plaintiffs are exempt under the requirements of the short test. Pursuant to 29 C.F.R. §§ 541.1(f) and 541.2(e)(2), employees who are paid more than $250.00 per week "need satisfy only the `short test'" to be qualified as executive or administrative employees.² Thomas v. Jones Rest, Inc., 64 F.Supp.2d 1205, 1209 (M.D.Ala.1999). Plaintiffs stipulate they earn more than $250.00 a week, (Doc. 52 at 19); therefore the short test applies in this case.³

Under the short test, an employee may be classified as a bona fide executive employee if: (1) the employee is paid on a salary basis, and (2) the employee's primary duty consists of management of the enterprise in which the employee is employed or of a customarily recognized partment thereof, and includes the customary and regular direction of the work of two or more other employees therein.⁴ 29 C.F.R. § 541.1(f).

To be classified as a bona fide administrative employee, the short test requires: (1) that the employee be paid on a salary basis, and (2) that the employee's primary duty consist of the performance of office or nonmanual work directly related to management policies or general business operations of his employer, and include the exercise of discretion and independent judgment.⁵ 29 C.F.R. § 541.2(e)(2).

A. Salary Basis

Defendant contends that Plaintiffs qualify as executive and/or administrative employees because they are paid on a salary basis. Plaintiffs work alternating 24hour shifts with 48 hours off after each, which equates to nine or ten shifts a month, for an average workweek of 53 hours.⁶ (Doc. 52 at 18.) Plaintiffs are paid a predetermined amount every two weeks regardless of the number of hours actually worked.⁷ (Doc. 34, Mooney Aff. ¶ 7.) "An employee will be considered to be paid `on a salary basis' within the meaning of the regulations if under his employment agreement he regularly receives each pay period on a weekly, or less frequent basis, a predetermined amount constituting all or part of his compensation ...." 29 C.F.R. § 541.118(a). Plaintiffs testified in their depositions they are salaried employees and receive the same pay no matter how much or how little they work. (Bell Dep. at 39; Jackson Dep. at 46; Debrecht Dep. at 72, 74.)

Plaintiffs, however, contradict their prior testimony and argue they are not compensated on a salary basis because they are subject to suspension without pay for periods of less than a week under the Collective Bargaining Agreement ("CBA").⁸ An employee is not considered paid on a salary basis if the predetermined amount is "subject to reduction because of variations in the quality or quantity of the work performed." 29 C.F.R. § 541.118(a). The effect of making such a deduction depends upon the facts in the particular case. 29 C.F.R. § 541.118(a)(6). To successfully challenge the salary basis test, Plaintiffs must demonstrate "either an actual practice of making such deductions or an employment policy that creates a `significant likelihood' of such deductions." Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct, 905, 137 L.Ed.2d 79 (1997).

Plaintiffs argue their compensation is subject to reduction because a former Battalion Chief received a disciplinary suspension without pay for a period of less than a week for reasons other than a safety rule violation.⁹ Plaintiffs claim that Roy Whitfield, who is not a Plaintiff in this case, was suspended without pay for sixteen hours for use of profanity. (Doc. 44 at 9.) Plaintiffs testified, however, that they personally have never been suspended and their pay has never been docked. (Bell Dep. at 54; Jackson Dep. at 129; Debrecht Dep. at 70.) A non-plaintiffs disciplinary suspension without pay is "not sufficient to invalidate the salary basis" for Plaintiffs. Bolick v. Brevard County Sheriffs Dep't, 937 F.Supp. 1560, 1571 (M.D.Fla.1996). See also Aiken v. City of Memphis, 190 F.3d 753, 762 (6th Cir. 1999) (holding plaintiffs could not demonstrate an actual practice of making deductions where only one police captain received a deduction in pay); Prickett v. DeKalb County, 92 F.Supp.2d 1357, 1371 (N.D.Ga.2000) (holding the suspensions of one Battalion Chief and two Captains were not sufficient to establish an actual practice of making deductions). Plaintiffs state they are "aware of many other instances in which bargaining unit employees have been suspended" under the CBA, but failed to provide the Court with any evidence to substantiate their claim. (Doc. 45, ¶ 9; Doc. 46, ¶ 9.) Furthermpre. Whitfield has not served as...