Forry v. Department of Natural Resources, WD

• Decision Date: 04 October 1994
• Docket Number: No. WD,WD
• Citation: Forry v. Department of Natural Resources, 889 S.W.2d 838 (Mo. App. 1994)
• Parties: 2 Wage & Hour Cas.2d (BNA) 579 Richard R. FORRY, Appellant, v. DEPARTMENT OF NATURAL RESOURCES, et al., Respondent. 49318.
• Court: Missouri Court of Appeals

Page 838

889 S.W.2d 838

2 Wage & Hour Cas.2d (BNA) 579

Richard R. FORRY, Appellant, v. DEPARTMENT OF NATURAL RESOURCES, et al., Respondent.

No. WD 49318.

Missouri Court of Appeals Western District.

Oct. 4, 1994.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Nov. 29, 1994.

Application to Transfer Denied

Jan. 24, 1995.

John A. Ruth, Jefferson City, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Deborah J. Neff, Asst. Atty. Gen., Jefferson City, for respondent.

Before FENNER, C.J., P.J., and LOWENSTEIN and SPINDEN, JJ.

FENNER, Chief Judge.

Appellant, Richard R. Forry, appeals the entry of summary judgment by the Circuit Court of Cole County, Missouri, in favor of respondents, the Department of Natural Resources, State of Missouri, and the Department's Director, David Shorr, in Forry's action for damages incurred as a result of respondents' refusal to pay Forry for overtime hours he accumulated while employed by respondents.

Forry has been employed by respondents as a Historic Site Administrator at Arrow Rock, Missouri, since July 15, 1975. For purposes of calculating overtime compensation, Forry's position is classified as a "category 1" pursuant to the Office of Administration Merit System Pay Plan and Index of Classes. Category 1 employees are entitled to pay or compensatory time off at a rate of one times the actual number of overtime hours worked. In his employment position, Forry is normally scheduled to work 40 hours per week. However, Forry accumulated 2067 hours in overtime. The Department of Natural Resources (Department) had established maximum accruals of compensatory time balances for its employees. The Department's maximum accrual amount was 240 hours (and changed to 100 hours for the Division of Parks, effective October, 1992).

In a memorandum dated July 30, 1991, to Forry from Lori Huber at the Department, Ms. Huber stated:

We are in the process of verifying individual compensation time balances and would like for you to confirm your balance as of June 30, 1991.

Our records indicate that you have 2067.0 hours of compensatory time as of June 30, 1991. If this total is correct, please sign below and return to Lori Huber by August 16[, 1991].

Forry signed this memorandum, indicating that he had accumulated 2067 hours in overtime. Thus, Forry and the Department agreed that Forry had accumulated 2067 hours of compensatory time.

Gaston de la Torre, Director of Personnel at the Department, testified by deposition. Mr. de la Torre indicated that Forry began his paid compensatory time leave on or about August 24, 1992. Evidently, the Department wanted Forry to reduce his 2067 hours in overtime to the 100 hour maximum accrual. Thus, Forry was directed to stay on compensatory time leave until he reduced his balance to 100 hours.

Mr. de la Torre testified that he completes on an annual basis a report for the Division of Accounting called a CFAR Report. The CFAR Report is a financial reporting for the State. As part of that report, compensatory time hours of each employee are supposed to be provided. Mr. de la Torre stated that Forry failed to provide his time sheets on several occasions. In 1990, Forry evidently did not report any compensatory time for the CFAR Report, but in 1991, he reported 2067 hours. Mr. de la Torre, however, testified that the Department "accepts" that Forry had accumulated 2067 hours of compensatory time.

Forry, in his deposition, testified that in the beginning of 1989, he had accumulated 2139 hours in overtime. In September of 1989, Forry had 2151 hours in overtime. Time sheets for October of 1989 through January of 1990 are not included in the record and are apparently nonexistent. In February of 1990, Forry's overtime balance was 2067. That balance apparently remained about the same through 1991 and into 1992. Forry admitted that the bulk of the overtime hours that he worked was prior to January of 1989. As of July of 1992, Forry still had 2067 hours in overtime. He testified that he was placed on administrative leave with pay in August of 1992 to "work down the overtime balance." Forry stated that he returned to work on October 1, 1993, at which time his overtime hours had decreased to 137 hours.

On September 22, 1992, Forry filed a three-count petition against respondents in the Circuit Court of Cole County. In Count I, Forry alleged that respondents are required by the Fair Labor Standards Act, 29 U.S.C. § 207 et seq., to pay Forry for his overtime hours. Forry sought damages for $37,243.71 for his accumulated overtime hours which remain unpaid, together with interest, plus liquidated damages in the amount of $37,243.71, plus attorney fees and costs.

In Count II, Forry alleged breach of contract in that, pursuant to 1 CSR 20-5.020(3), respondents promised to pay Forry for all overtime hours exceeding 240 hours, the established maximum accrual. Pursuant to 1 CSR 20-5.010(1)(E), respondents promised to pay at a rate not less than one and one-half times the regular rate at which he is employed or, in the alternative, under 1 CSR 20-5.010(1)(D), at Forry's regular rate of pay for said overtime hours which exceed the maximum accrual amount. Forry alleged that although he performed his obligations under the contract, respondents have refused to pay him for said accumulated overtime hours. Forry sought $37,243.71, or in the alternative, $23,787.54, together with interest.

In Count III, the quantum meruit count, Forry alleged that at the request of respondents, Forry performed work in excess of his ordinary and required duties for the respondents' benefit, that respondents accepted such extra work which amounted to 2067 hours, that the reasonable value of such extra work was at a rate not less than one and one-half times the regular rate at which he was employed, totalling $40,368.51, or in the alternative, was at least the same rate at which he was employed, totalling $26,912.34, and that respondents became indebted to Forry for the reasonable value of such extra work and, although Forry demanded this amount, respondents have failed and refused to pay this amount.

On March 25, 1993, Forry filed a Motion for Summary Judgment. Respondents filed a Motion for Partial Summary Judgment on March 29, 1993. In respondents' Motion for Partial Summary Judgment, respondents argued that, as to Forry's Count I, the Portal-to-Portal Act, 29 U.S.C. § 255, establishes a two-year statute of limitations for claims brought pursuant to the Fair Labor Standards Act (FLSA), which statute of limitations starts to run when the claim accrues. Respondents contended that the statute of limitations commenced when the first pay period passed that Forry was not compensated for overtime or compensatory hours. Thus, respondents argued that Forry's claim is barred by the statute of limitations.

As to Forry's Count II, the breach of contract count, respondents argued that this count is also limited by the two-year state statute of limitations, section 516.140, RSMo 1986. Finally, as to Forry's Count III, the quantum meruit claim, respondents argued that in order for Forry's claim in equity to lie, Forry must show that he has no adequate remedy at law. However, Forry alleged in Counts I and II that he has an adequate remedy at law. Respondents further argued that the statutory remedy provided by the FLSA is the sole remedy available to enforce the employee's rights under the FLSA. Respondents also argued that Forry is being compensated for the work he has done by being placed on paid administrative leave. Finally, respondents argued that 1 CSR 205.020(3)(A), as cited by Forry, did not become final and effective until January 1, 1990 and, thus, did not apply to Forry until January 1, 1990. Prior to January 1, 1990, the applicable regulation was 1 CSR 20-5.030.

In their Motion for Partial Summary Judgment, respondents asked that the court enter judgment limiting Forry's claims for overtime or compensatory hours for the two years prior to the date the petition was filed, September 22, 1992, that Count III of Forry's petition (quantum meruit) be dismissed, and that 1 CSR 20-5.020(3)(A) only be applied from its effective date of January 1, 1990.

In an order dated June 30, 1993, the circuit court limited Forry's claims for overtime or compensatory hours to the overtime accrued for the two years preceding the date the petition was filed (September 22, 1992), dismissed Count III of Forry's petition, the quantum meruit cause of action, and ordered that 1 CSR 20-5.020(3)(A) will only apply from its effective date of January 1, 1990.

On January 24, 1994, respondents filed a Motion for Summary Judgment moving the court to grant summary judgment against Forry on Counts I and II of Forry's petition. Respondents alleged that Counts I and II are barred by their respective two-year statutes of limitations. Respondents argued that, based on Forry's deposition, the evidence was clear that Forry accrued his 2067 hours of compensatory time prior to September 22, 1990 and, thus, the applicable federal and state statutes of limitations barred Forry's claim for reimbursement.

In an order dated March 10, 1994, the trial granted summary judgment in favor of respondents on Counts I and II. The trial court further denied Forry's Motion for Summary Judgment. In its Findings of Fact and Conclusions of Law, the court found that Forry accrued the 2067 hours of overtime/compensatory time on or before January 1, 1989 and was not paid for this 2067 hours of overtime/compensatory time in his next monthly paycheck. The court found that Count I of Forry's petition is barred by 29 U.S.C. § 255 "because the two year statute of limitations ran well before [Forry] filed his suit on September 22, 1992." The court found that Count II is barred by the statute of limitations set out in section 516.140, RSMo 1986, "as it was well over two years since [Forry] was not first paid for the overtime at issue prior to [Forry...