Harrison v. City of Clarksville, Tenn., 3:88-0954.

• Decision Date: 21 August 1989
• Docket Number: No. 3:88-0954.,3:88-0954.
• Citation: 732 F. Supp. 804
• Parties: Dalton HARRISON, et al., and all other persons similarly situated v. CITY OF CLARKSVILLE, TENNESSEE.
• Court: U.S. District Court — Middle District of Tennessee

732 F. Supp. 804

Dalton HARRISON, et al., and all other persons similarly situated

v.

CITY OF CLARKSVILLE, TENNESSEE.

No. 3:88-0954.

United States District Court, M.D. Tennessee, Nashville Division.

August 21, 1989.

John D. Schwalb, Brewer, Krause & Brooks, Nashville, Tenn., for plaintiffs.

Overton Thompson, III, Farris, Warfield & Kanaday, Franklin, Tenn., Frank J. Runyon, Runyon & Runyon, Clarksville, Tenn., and Andree K. Blumstein and Ellen Hobbs Lyle, Nashville, Tenn., for defendant.

MEMORANDUM

WISEMAN, Chief Judge.

This matter is before the Court on defendant's motion for summary judgment against 34 plaintiffs (designated plaintiffs), all of whom were hired by defendant as firefighters after the compensation changes at issue in this suit took effect. For the reasons stated below, the Court finds that the defendant's actions are not void under Tennessee law and that, with respect to the designated plaintiffs, the change in the length of the shifts is bona fide under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., as amended (FLSA). On the record currently before it, however, the Court is unable to determine whether the designated plaintiffs agreed to the exclusion of meal and sleep periods from compensable time. The Court will reconsider defendant's motion on this issue upon the designated plaintiffs' submission of affidavits as specified below.

I. HISTORY AND REQUIREMENTS OF FLSA

In 1974, Congress amended FLSA to apply to public employees, subjecting their employers to FLSA's overtime and minimum wage provisions. The Supreme Court subsequently declared the 1974 amendments unconstitutional as applied to public agencies administering "traditional government functions", including fire protection. See National League of Cities v. Usery, 426 U.S. 833, 851, 96 S.Ct. 2465, 2474, 49 L.Ed.2d 245 (1976). Under Usery, none of FLSA's provisions governed the relationship between the defendant in this case and its firefighters. In 1985, however, the Supreme Court reversed itself, overruling National League of Cities in Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985), so that FLSA once again applied to the defendant's employment of firefighters. To ease the impact of Garcia, Congress amended FLSA to delay its application to State and local public sector employers, including the defendant, until April 15, 1986, providing these employers approximately one year to implement FLSA's requirements. See International Ass'n of Firefighters v. City of Rome, Georgia, 682 F.Supp. 522, 525-26 (N.D.Ga.1988).

At issue in this suit are 29 U.S.C. § 207(k) and the regulations governing its implementation. Section 207(k) requires that firefighters be compensated for overtime at a rate "not less than one and one-half times their regular rate" for hours worked which exceed 212 hours in a work period of 28 consecutive days.¹ Under the regulations promulgated in accordance with 207(k), sleep time can be excluded from compensable hours of work if the firefighters "are on a tour of duty of more than 24 hours and if there is an expressed or implied agreement between the employer and the employees to exclude such time." 29 C.F.R. § 553.222(c) (1988).² Up to eight hours of sleep time may be excluded from compensable time, but the employees must be compensated for any time the period is interrupted for a call to duty and for the entire period if the employees cannot get at least five hours sleep during the designated period. 29 C.F.R. § 785.22. Meal time may also be excluded from compensable time where the firefighters are on a tour of duty longer than 24 hours, are completely relieved of duty for at least 30 minutes of meal time, and expressly or impliedly agree to exclude the time. 29 C.F.R. §§ 553.223, 785.19 & 785.22.

FACTS

After Garcia, the city took several steps to comply with FLSA. The city codified its intent to comply with the law in an ordinance passed through proper procedures on November 11, 1985. See Clarksville Code, Chapter 13, § 1-1330, Exhibits C & E to Plaintiff's Memorandum in Opposition to Defendant's Motion for Summary Judgment (Plaintiff's Opposition). Before passage of the ordinance, the city had taken steps in May, 1985, to exclude eight hours of sleeping time and two hours of meal time per shift from compensable time. Subsequently, in September, 1985, the city increased its firefighters' shifts from exactly 24 hours on duty to 24 hours and 15 minutes. Consequently, the firefighters now work shifts for 24 hours and 15 minutes and are not compensated for eight hours of sleep time and two hours of meal time during each shift.

The city's Fire Chief, Gordon Keel, played an active role in implementing these changes. He and a Deputy Chief, Jerry Waugh, at the city's expense, attended a chiefs' meeting and seminar discussing FLSA. Keel Deposition at pp. 30-31. The Deputy Chief also attended other meetings concerning FLSA. Id. at 33. The firefighters employed by Clarksville at the time of the changes were informed of the designation of sleeping and eating time and of the extension of the shift through memoranda distributed to the station houses by Chief Keel. Although it appears that Chief Keel consulted regularly with the chairman of the city's Fire Committee concerning the implementation of the FLSA requirements, the full committee did not expressly consider and approve the extension of the shift or the exclusion of sleep and meal periods. Nor were these actions submitted to or approved by either City Council or the Personnel Committee. See Keel Deposition at 31; Defendant, City of Clarksville's Response to Plaintiff's First Requests for Admission, filed as an attachment to Plaintiffs' Supplemental Memorandum in Opposition to Defendant's Motion for Summary Judgment. Nothing in the record, however, even remotely suggests that the firefighters were not aware of the changes.

The designated plaintiffs were employed well after the changes were implemented. All of the designated plaintiffs were hired between March 1, 1986, and October 19, 1987. See Keel Affidavit (filed 3/10/89). At the time they were hired, all of the designated plaintiffs were informed of the length of their shifts and of their annual salary. It is disputed whether Chief Keel or his deputies informed the designated plaintiffs before they were hired that sleeping and eating periods were excluded from compensable time. Although the record does not establish the precise time that each of these plaintiffs learned of the exclusion, it is clear that it was no later than the receipt of their first time sheets after they were hired. Based upon these facts, the designated plaintiffs claim that they did not agree to the exclusion of sleep and meal periods from compensable time. To support their claim, the designated plaintiffs have submitted affidavits attesting that they were not told, nor was it implied to them, that the exclusion of sleeping and eating time was a condition of their employment. They also attest that they objected the first time they were told or became aware that those periods were excluded.

ANALYSIS

The city's actions were consistent with state law. Further, with respect to the designated plaintiffs, no issue exists concerning whether change in shift length was bona fide under FLSA. The issue of whether the designated plaintiffs agreed to the exclusion of sleep and meal times from compensable hours remains outstanding. The Court reserves judgment on this issue, however, pending submission by the designated plaintiffs of affidavits as specified below.

A. THE CITY'S ACTIONS ARE VALID UNDER ITS CHARTER.

As a traverse to the defense that the plaintiffs agreed to the employment terms of which they complain, the designated plaintiffs now argue for the first time that even if there was such an agreement, the actions of the city are void because the city failed to follow the procedural requirements set forth in its charter. In the interests of justice and the policies underlying Rule 15, Fed.R.Civ.P., the Court has taken a liberal view of plaintiffs' complaint and considered the merits of plaintiffs' argument, even though it falls outside the scope of plaintiffs' complaint. The Court finds that the designation of sleep and meal times and the extension of the plaintiffs' shifts were day-to-day matters subject to the "general control and supervision" of Chief Keel under Section 7-303 of the Clarksville Code.

Plaintiffs argue that the extension of the shift and the exclusion of meal and sleep periods are properly characterized as either a formal rule or regulation or a policy. Plaintiffs argue that if the former characterization applies, the actions are void because City Council did not expressly and publicly approve the actions and because the rules were never filed with the City Clerk, both of which are required by the city's code. See Clarksville Code, Art. II, §§ 13, 17, Art. III, § 4, Plaintiffs' Response, Exhibit A; and Clarksville Code, Chapter 7, § 7-302, Plaintiffs' Response, Exhibit B. They argue that if the latter characterization applies, the action is void because it was not approved conjunctively by the mayor, city council and personnel committee. See Clarksville Code, Chapter 13, § 1-1309(c), Plaintiffs' Response, Exhibit C.

The Court disagrees with plaintiffs' argument. Plaintiffs are correct when they argue that charter requirements prescribing a method to be pursued by a municipal legislative body in adopting ordinances are mandatory, and an attempted exercise that is not in compliance with such requirements is void. Rutherford v. Nashville, 168 Tenn. 499, 79 S.W.2d 581, 584 (1935); Wilgus v. Murfreesboro, 532 S.W.2d 50, 52 n. 1 (Tenn.App.) (Drowota, J.), cert. den. (1975). It is also true that if a charter requires that the city act through passage of an ordinance, the city cannot rely upon a general provision of the charter to excuse its failure to conform to the...