Hamilton v. Tulsa County Public Facilities Authority, 95-5247

• Decision Date: 06 June 1996
• Docket Number: No. 95-5247,95-5247
• Citation: 85 F.3d 494
• Parties: 132 Lab.Cas. P 33,403, 3 Wage & Hour Cas.2d (BNA) 577 Kenneth HAMILTON, on behalf of himself and all other employees of the Tulsa County Public Facilities Authority similarly situated, Plaintiff-Appellant, v. TULSA COUNTY PUBLIC FACILITIES AUTHORITY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 494

85 F.3d 494

132 Lab.Cas. P 33,403, 3 Wage & Hour Cas.2d

(BNA) 577

Kenneth HAMILTON, on behalf of himself and all other

employees of the Tulsa County Public Facilities

Authority similarly situated, Plaintiff-Appellant, v. TULSA COUNTY PUBLIC FACILITIES AUTHORITY, Defendant-Appellee.

No. 95-5247.

United States Court of Appeals, Tenth Circuit.

June 6, 1996.

Michael T. Keester (Steven A. Broussard with him, on the brief) of Hall, Estill, Hardick, Gable, Golden & Nelson, Tulsa, Oklahoma, for appellee.

Eric B. Bolusky of Lester & Bryant, Tulsa, Oklahoma, for appellant.

Before ANDERSON, BARRETT, and MURPHY, Circuit Judges.

BARRETT, Senior Circuit Judge.

After examining the briefs and the appellate record, this panel has determined unanimously to honor the parties' request for a decision on the briefs without oral argument. See Fed.R.App.P. 34(f); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.

Kenneth Hamilton, George Bradley, Eddie Ray Tearel, and Rosalee Wood (collectively "Appellants") appeal from the district court's Order granting Tulsa County Public Facilities Authority's (TCPFA) Motion for Summary Judgment and denying Appellants' Motion for Summary Judgment.

Appellants are former employees of TCPFA. Hamilton, Bradley, and Tearel performed maintenance work for TCPFA. Wood was a security guard. ¹ During their employment with TCPFA, Appellants were compensated at their regular rate of pay for hours worked in excess of forty hours per week.

TCPFA is a public trust which manages the Tulsa County Fairgrounds. Tulsa County is the beneficiary. By its Charter, TCPFA's primary purpose is to "establish, provide, maintain and promote recreational centers, agricultural and industrial expositions, fairs, trade shows and other recreational facilities and activities." It is undisputed that more than 50% of TCPFA's income is derived from recreational or amusement activities, including the Tulsa State Fair, horse racing, amusement and water parks, and baseball.

Appellants filed this action to collect unpaid overtime compensation for hours worked in excess of forty hours per week pursuant to the Fair Labor Standards Act (the FLSA), 29 U.S.C. § 207(a). ² TCPFA defended on the basis that it was not required to pay Appellants overtime under § 207(a), because it was statutorily exempt pursuant to the amusement or recreational establishment exemption to the FLSA, 29 U.S.C. § 213(a)(3).

On October 12, 1995, the district court granted TCPFA's Motion for Summary Judgment finding/concluding that TCPFA was an amusement or recreational establishment and that the exemption found in 29 U.S.C. § 213(a)(3) applied.

On appeal, Appellants contend that the district court erred in granting TCPFA's Motion for Summary Judgment because: (1) they were not covered by the exemption, inasmuch as they were not serving in traditional recreational or amusement activities; and (2) TCPFA does not meet the criteria of a single establishment under the recreational and amusement exemption, inasmuch as the various businesses on the fair grounds constitute separate establishments.

We review a district court's grant or denial of summary judgment de novo, applying the same legal standard used by the district court. Wolf v. Prudential Ins. Co. of Am., 50 F.3d 793, 796 (10th Cir.1995) (citations omitted). Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Id.

Generally, the FLSA requires employers to pay employees at least one and one-half times their regular rate of pay for all hours worked in excess of forty hours per week as "overtime compensation." 29 U.S.C. § 207(a). However, the FLSA specifically exempts "any employee employed by an establishment which is an amusement or recreational establishment...." 29 U.S.C. § 213(a)(3). " 'Amusement or recreational establishments' as used in [ § 213(a)(3) ] are establishments frequented by the public for its amusement or recreation." 29 C.F.R. § 779.385. An amusement or recreational establishment employer qualifies for the exemption if "(A) it does not operate for more than seven months in any calendar year, or (B) during the preceding calendar year, its average receipts for any six months of such year were not more than 33 1/3 per centum of its average receipts for the other six months of such year...." 29 U.S.C. § 213(a)(3).

a.

It is undisputed that TCPFA's average receipts for any six months are not more than 33 1/3% of its average receipts for the other six months of the year. Therefore, TCPFA qualifies as an amusement or recreational establishment under § 213(a)(3)(B). However, Appellants argue that TCPFA is not entitled to the exemption under § 213(a)(3), because the type of work they performed was not traditional amusement or recreational activities.

By its own terms, § 213(a)(3) of the FLSA exempts employees employed by amusement or recreational establishments; it does not exempt employees on the basis of the work performed at an amusement or recreational establishment. It is the character of the revenue producing activity which affords the employer the protection of the exemption. 29 C.F.R. § 779.302. See Hays v. City of Pauls Valley, 74 F.3d 1002, 1006 (10th Cir.1996); Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 596 (11th Cir.1995); Marshall v. New Hampshire Jockey Club, Inc., 562 F.2d 1323, 1331 n. 4 (1st Cir.1977); Brennan v. Southern Productions, Inc., 513 F.2d 740, 746-47 (6th Cir.1975). ³ Since TCPFA is in the business of providing "amusement and recreation" to the public and it has satisfied the requirements of § 213(a)(3)(B), its employees are exempt from the requirement of the overtime provisions of the FLSA, 29 U.S.C. § 207(a).

b.

Appellants contend that because the various businesses located on the fairgrounds constitute separate establishments, TCPFA does not meet the requirement of a single establishment under § 213(a)(3) in relation to Hamilton, Bradley and Tearel since they were central maintenance employees who served more than one "establishment" on the fairgrounds.

Appellants rely on Brennan v. Yellowstone Park Lines, Inc., 478 F.2d 285 (10th Cir.), cert. denied, 414 U.S. 909, 94 S.Ct. 228, 38 L.Ed.2d 147 (1973), in which we held that the various facilities in Yellowstone National Park were separate and distinct establishments and not a single integrated establishment and that, based on the agreements...