Hahn v. Pima County

• Decision Date: 31 May 2001
• Docket Number: No. 2CA-CV 00-0200.,2CA-CV 00-0200.
• Parties: Eric HAHN, on his own behalf, and on behalf of all others similarly situated, Plaintiffs/Appellants, v. PIMA COUNTY, a body politic; Mike Boyd in his official capacity as a member of the Pima County Board of Supervisors; Dan Eckstrom in his official capacity as a member of the Pima County Board of Supervisors; Sharon Bronson in her official capacity as a member of the Pima County Board of Supervisors; John Even in his official capacity as a member of the Pima County Board of Supervisors; Raul M. Grijalva in his official capacity as a member of the Pima County Board of Supervisors; and Clarence Dupnik, Sheriff of Pima County, Defendants/Appellees. Kevin Acorn, on his own behalf, and on behalf of all others similarly situated, Plaintiffs/Appellants, v. Pima County, a body politic; Mike Boyd in his official capacity as a member of the Pima County Board of Supervisors; Dan Eckstrom in his official capacity as a member of the Pima County Board of Supervisors; Sharon Bronson in her official capacity as a member of the Pima County Board of Supervisors; John Even in his official capacity as a member of the Pima County Board of Supervisors; Raul M. Grijalva in his official capacity as a member of the Pima County Board of Supervisors; and Clarence Dupnik, Sheriff of Pima County, Defendants/Appellees.
• Court: Arizona Court of Appeals

24 P.3d 614

200 Ariz. 167

Eric HAHN, on his own behalf, and on behalf of all others similarly situated, Plaintiffs/Appellants, v. PIMA COUNTY, a body politic; Mike Boyd in his official capacity as a member of the Pima County Board of Supervisors; Dan Eckstrom in his official capacity as a member of the Pima County Board of Supervisors; Sharon Bronson in her official capacity as a member of the Pima County Board of Supervisors; John Even in his official capacity as a member of the Pima County Board of Supervisors; Raul M. Grijalva in his official capacity as a member of the Pima County Board of Supervisors; and Clarence Dupnik, Sheriff of Pima County, Defendants/Appellees.

Kevin Acorn, on his own behalf, and on behalf of all others similarly situated, Plaintiffs/Appellants, v. Pima County, a body politic; Mike Boyd in his official capacity as a member of the Pima County Board of Supervisors; Dan Eckstrom in his official capacity as a member of the Pima County Board of Supervisors; Sharon Bronson in her official capacity as a member of the Pima County Board of Supervisors; John Even in his official capacity as a member of the Pima County Board of Supervisors; Raul M. Grijalva in his official capacity as a member of the Pima County Board of Supervisors; and Clarence Dupnik, Sheriff of Pima County, Defendants/Appellees.

No. 2CA-CV 00-0200.

Court of Appeals of Arizona, Division 2, Department A.

May 31, 2001.

As Corrected June 13, 2001.

Yen, Pilch & Komadina, P.C., By Caroline A. Pilch and Phil S. Flemming, Phoenix, for Plaintiffs/Appellants.

Gabroy, Rollman & Bosse, P.C., By Lyle D. Aldridge, Tucson, for Defendants/Appellees.

OPINION

PELANDER, J.

¶ 1 In these consolidated actions, plaintiffs/appellants Kevin Acorn and Eric Hahn, Pima County corrections officers who sought overtime compensation for unpaid lunch breaks, appeal from the trial court's entry of summary judgment in favor of defendants/appellees Pima County and various individual county officials (collectively, the county). We affirm.

BACKGROUND

¶ 2 We view the facts and all reasonable inferences therefrom in the light most favorable to plaintiffs, the parties against whom summary judgment was entered. Bothell v. Two Point Acres, Inc., 192 Ariz. 313, ¶ 2, 965 P.2d 47, ¶ 2 (App.1998). Before October 1, 1996, county corrections officers such as plaintiffs had eight and one-half hour work shifts, and the county treated one-half hour as an unpaid lunch break. During their lunch break, corrections officers were at least implicitly required to carry their portable radios and service revolvers if they possessed one; were expected to respond to any emergency situations or criminal activity that might arise and to any citizen inquiries; and were subject to call and interruptions from fellow employees, inmates, or visitors to the jail facility. In addition, as a practical matter, corrections officers remained in uniform during lunch breaks.

¶ 3 In their complaints, filed on behalf of themselves and other similarly situated present and former county employees, Acorn and Hahn alleged that the county's failure to compensate them for the unpaid lunch breaks violated the overtime provisions of the Fair Labor Standards Act (the FLSA), 29 U.S.C. §§ 201 through 219.¹ Approximately 300 other individuals consented to join the action as plaintiffs pursuant to 29 U.S.C. § 216(b). The county moved for summary judgment, contending that, "[d]espite the restrictions placed upon Plaintiffs during their meal periods," plaintiffs "ha[d] not alleged or set forth any facts that demonstrate their meal period activities were for the predominate [sic] benefit of Pima County." In granting the county's motion, the trial court ruled:

Although plaintiffs were subject to being interrupted to perform job duties during their lunch breaks, there is no evidence that they spent a predominant amount of their lunch breaks in the actual performance of job duties that benefitted their employer. Rather, plaintiff[s'] lunch breaks were primarily occupied by their procurement and consumption of food, and, therefore, they were "completely relieved" from duty during lunch breaks and are not entitled to overtime compensation for unpaid meal periods. Lamon v. City of Shawnee, 972 F.2d 1145 (10th Cir.1992).

This appeal followed the trial court's subsequent denial of plaintiffs' motion for a new trial.

DISCUSSION

¶ 4 "On appeal from a summary judgment, we must determine de novo whether there are any genuine issues of material fact and whether the trial court erred in applying the law." Bothell, 192 Ariz. 313, ¶ 8, 965 P.2d 47, ¶ 8. We find neither triable factual issues to preclude summary judgment nor any legal error in the trial court's ruling.

¶ 5 Section 7(a) of the FLSA requires employers to pay overtime compensation at one and a half times the regular rate to employees who work more than forty hours in a work week. 29 U.S.C. § 207(a)(1). Section 7(k), however, permits public agencies engaged in law enforcement activities to calculate overtime for law enforcement personnel, "including security personnel in correctional institutions," based on a twenty-eight-day work period rather than the standard seven-day period. 29 U.S.C. § 207(k). Under that section, the public employer "must pay overtime only when employees have `tours of duty which in the aggregate exceed' 171 hours in a 28 day period." Leahy v. City of Chicago, 96 F.3d 228, 230 (7th Cir.1996), quoting 29 U.S.C. § 207(k)(1). See also Roy v. County of Lexington, South Carolina, 141 F.3d 533, 538-39 (4th Cir.1998)

. "Although a state or local government, in its employment of law enforcement or fire protection personnel, may choose to conform to the maximum hour and overtime provisions contained in § 207(a)(1), the governmental entity may adopt an alternative scheme available under § 207(k)." Lamon v. City of Shawnee, 972 F.2d 1145, 1150 (10th Cir. 1992).

¶ 6 Relying primarily on two Kansas District Court cases, Wahl v. City of Wichita, 725 F.Supp. 1133 (D.Kan.1989), and Nixon v. City of Junction City, 707 F.Supp. 473 (D.Kan.1988), plaintiffs contend "the trial court erroneously applied a standard that relates to tour of duty regimes under § 207(k) of the FLSA instead of the standard that applies to those individuals who work a 40-hour work week." The incorrect standard, according to plaintiffs, is a Department of Labor regulation that provides in pertinent part:

(b) If a public agency elects to use the section 7(k) exemption, the public agency may, in the case of law enforcement personnel, exclude meal time from hours worked on tours of duty of 24 hours or less, provided that the employee is completely relieved from duty during the meal period, and all the other tests in § 785.19 of this title are met. On the other hand, where law enforcement personnel are required to remain on call in barracks or similar quarters or are engaged in extended surveillance activities (e.g., "stakeouts"), they are not considered to be completely relieved from duty, and any such meal periods would be compensable.

29 C.F.R. § 553.223(b).²

¶ 7 Because the county established and employed plaintiffs in "a 40-hour work week schedule," plaintiffs argue, the Department of Labor's administrative standard set forth in 29 C.F.R. § 785.19 controls and applies. That regulation provides:

(a) Bona fide meal periods. Bona fide meal periods are not worktime. Bona fide meal periods do not include coffee breaks or time for snacks. These are rest periods. The employee must be completely relieved from duty for the purposes of eating regular meals. Ordinarily 30 minutes or more is long enough for a bona fide meal period. A shorter period may be long enough under special conditions. The employee is not relieved if he is required to perform any duties, whether active or inactive, while eating. For example, an office employee who is required to eat at his desk or a factory worker who is required to be at his machine is working while eating ....

(b) Where no permission to leave premises. It is not necessary that an employee be permitted to leave the premises if he is otherwise completely freed from duties during the meal period.

Id. Pursuant to that regulation, first promulgated in 1956, see Roy, 141 F.3d at 544,

plaintiffs contend the county had to compensate them for their half-hour lunch breaks because they were not "completely relieved from duty for the purposes of eating regular meals." 29 C.F.R. § 785.19(a).

¶ 8 Contrary to plaintiffs' argument, the trial court did not apply an incorrect standard in determining their entitlement under the FLSA to overtime compensation for the daily, half-hour meal periods. Although plaintiffs attempt to distinguish § 785.19 from § 553.223(b), contending that only the former applies to forty-hour-work-week employees such as they and that it requires a different analysis and result, we find no meaningful distinction between those regulations. As the court in Lamon noted, "contrasting of the two sections ... does not mean that the `completely relieved from duty' standard as used in [§ 785.19] should necessarily take on a different meaning than that of [§ 553.223(b)]." 972 F.2d at 1158 n. 18. See also Barefield v. Village of Winnetka, 81 F.3d 704, 710 n. 1 (7th Cir.1996)

(although separate regulations govern § 7(a) and § 7(k) employees, the "predominant benefit test applies to both"). That § 553.223(b) expressly refers to and requires compliance with "all the other tests in § 785.19" also negates plaintiffs' proffered distinction. Moreover, neither the trial court nor the county based its ruling or argument on § 553.223(b).

¶ 9 The Department of Labor itself has rejected plaintiffs' broad, literal construction of the "completely relieved from duty" language in § 785.19. Indeed, one of the cases the Department of Labor originally cited as the source of that language stated: "Time spent predominantly for the employer's benefit during a...