Harrison v. City of Clarksville, Tenn.

• Citation: 732 F. Supp. 810
• Decision Date: 23 January 1990
• Docket Number: No. 3:88-0954.,3:88-0954.
• 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. 810

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.

January 23, 1990.

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, City of Clarksville's (City), 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. On August 21, 1989, 732 F.Supp. 804, this court held that the actions taken by the City were valid under Tennessee law. The Court also held that the implementation of shifts longer than 24 hours was bona fide under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., as amended (FLSA), as applied to the designated plaintiffs. Pending the submission of supplemental affidavits, however, the Court reserved judgment on the question of whether the exclusion of meal and sleep periods from these plaintiffs' compensable time satisfied the requirements of the FLSA.¹

If certain conditions are met, the regulations implementing 29 U.S.C. § 207(k) permit sleep time and meal time to be excluded from compensable time.² At issue is the requirement that the employees expressly or impliedly agree to exclude the time. Because the supplemental affidavits fail to demonstrate that a genuine issue exists as to whether the designated plaintiffs agreed to the exclusion of sleeping and eating periods from compensable time, the Court grants defendant's motion for partial summary judgment.

FACTS

All of the designated plaintiffs were hired well after the City began to deduct meal and sleep periods from compensable time. Before accepting their offers of employment with the City, each defendant was informed of his annual salary, the length of his shifts, opportunities for incentive pay, and various rules and regulations affecting the job. In his interviews with each of the designated plaintiffs, however, Chief Keel did not discuss specifically the exclusion of meal and sleep periods from compensable time. Deposition of Gordon Eugene Keel at pp. 71 & 88-89 (filed April 7, 1989). Nor does it appear that any of the designated plaintiffs raised the issue with the chief before accepting employment. On the other hand, the City had begun to exclude these hours well before it hired any of the designated plaintiffs. It is also clear that the practice was widely known and discussed among the firefighters who were on board at the time the designated plaintiffs were hired. Nevertheless, each designated plaintiff contends that he was not actually aware of the exclusion when he accepted the position.

Even if it is true that the designated plaintiffs were not actually aware of the exclusions before accepting their positions, the record demonstrates conclusively that they learned of the policy almost immediately after they began working. According to Chief Keel, the deputy chiefs had the responsibility to inform the employees of the policy when the employees went on to their shifts. Id. Although Chief Keel could not attest to whether the deputy chiefs personally fulfilled their responsibility, the designated plaintiffs were informed of the exclusion no later than the time that they received their first time sheets. The time sheets are self-explanatory. They specify time periods set aside for meals and sleep, and illustrate that the number of hours set aside for sleeping and eating during which the workers were not called into action are deducted from compensable hours. All but five of the designated plaintiffs either received and signed the time sheets, or otherwise admit to being informed of the exclusions no later than the conclusion of the first pay period after they began employment.³

Only two designated plaintiffs make even a colorable claim that they expressed some objection to the exclusions immediately upon learning of them. Plaintiff Douglas attests that he "objected orally" when his first timesheet was presented to him, and that he has since either signed "no" on his timesheets or refused to sign them at all. Plaintiff Togia attests that upon learning of the exclusion, he told Deputy Chief Stanfield that "it wasn't right to be required to stay" for an entire shift unless he was paid for all of the time. Plaintiff Togia has continued to tell each duty officer who presents him with timesheets that the policy is wrong, but he signs the timesheets because he was told by Deputy Stanfield that signing "didn't mean anything." All of the other designated plaintiffs waited at least one month after learning or receiving notice of the exclusions before expressing any objection.⁴ Before filing this lawsuit, none of the designated plaintiffs registered a formal grievance or took formal steps to request or initiate a change in the policy. Nor did any of the designated plaintiffs quit their jobs or refuse to accept their paychecks.

ANALYSIS

The issue presented is whether the designated plaintiffs, all of whom were hired after the City began to exclude sleep and meal periods from compensable time, impliedly agreed to the exclusions, as required under 29 U.S.C. § 207(k) and 29 C.F.R. §§ 553.222 & 553.223. To make this determination, the Court must consider the conduct of the parties and all of the surrounding circumstances. See Skidmore v. Swift & Co., 323 U.S. 134, 137, 65 S.Ct. 161, 163, 89 L.Ed. 124 (1944). Where the circumstances and actions of the parties demonstrate that the plaintiffs were aware of a particular matter, their acceptance of and continuance in employment manifests assent on that matter. See Ariens v. Olin Mathieson Chem. Corp., 382 F.2d 192, 197 (6th Cir.1967); Beaston v. Scotland School for Veterans' Children, 693 F.Supp. 234, 239-40 (M.D.Pa.1988); Ashe v. Webb, 142 Tenn. 436, 217 S.W. 654 (1919).

The record currently before the Court demonstrates that there is a genuine dispute as to whether the designated plaintiffs were actually aware of the exclusion before accepting employment with the City. The exclusion was not discussed in their pre-hire interviews. While this suggests, on the one hand, that the plaintiffs were not made aware of the exclusion, it also suggests that whether the plaintiffs were paid for sleeping and eating was not material to their decision to accept the job. Further, given the fact that the practice was already in place and was the topic of discussion among the firefighters, it is somewhat incredible that none of the designated plaintiffs knew of the practice before accepting the position. But although this particular factual dispute is properly resolved at trial, rather than through summary judgment stage, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986), it does not preclude summary judgment.

Under the FLSA, an employee's continued employment and acceptance of pay is evidence of the employee's implied agreement to certain practices, terms and conditions of employment. E.g., Williams v. Jacksonville Terminal Co., 315 U.S. 386, 398, 62 S.Ct. 659, 666, 86 L.Ed. 914 (1942). Traditionally, courts have inferred from continued employment and acceptance of pay that an agreement existed on a particular matter, even if the employee voiced an objection to the matter. E.g., id.; Shepler v. Crucible Fuel Co., 140 F.2d 371, 374 (3d Cir.1944). More recently, however, in circumstances where changes in compensation were implemented after firefighters were hired, courts have been reluctant to apply the traditional rule to determine whether the employees impliedly agreed to the change as contemplated under 29 C.F.R. §§ 553.222 & 553.223.

In Beebe v. United States, 640 F.2d 1283, 226 Ct.Cl. 308 (Ct.Cl.1981), the plaintiff employees protested the exclusion as soon as they became aware of it, and, through their union, entered into ongoing negotiations over the matter with their employer, but continued to accept their paychecks. When negotiations broke down, and the parties withdrew their proposals, the employees filed suit seeking to obtain the relief which negotiation failed to produce. Based upon these circumstances, the court held that the employees did not agree to the exclusion and awarded them overtime compensation under the FLSA. Id. at 1291 & 1295. In Jacksonville Prof. Fire Fighters Ass'n Local 2961 v. City of Jacksonville, 685 F.Supp. 513 (E.D.N.C.1987), the court considered a similar situation. Within days after the policy excluding sleeping and eating periods was posted, all but four employees signed and filed with defendant's manager a petition objecting to the policy. Id. at 519. The court held that the filing of the petition precluded summary judgment in favor of defendants on the issue of whether there was an implied agreement, except as to the four plaintiffs who did not sign the petition. Id. at 520 & n. 6. Likewise, in International Ass'n of Firefighters, Local 349 v. City of Rome, 682 F.Supp. 522 (N.D.Ga.1988), the court held that a continuation continuing to work and accept pay may be evidence of an implied agreement, but is not conclusive. Id. at 529. Explicitly following Beebe and Jacksonville, the court denied the defendant's motion for summary judgment, holding that clear contemporaneous dissent to the exclusion negated any inference of agreement by the dissenters. Id. at 529-30. Finally, in Brewer v. City of Waukesha, 691 F.Supp. 160 (E.D.Wis.1988), through the state's impasse procedures for resolving labor disputes, an arbitrator adopted the city's proposal to exclude sleep and meal time. The union and individual firefighters objected to the proposal as...