Houston Police Officers' Union v. City of Houston

• Decision Date: 29 April 2003
• Docket Number: No. 01-21117.,01-21117.
• Citation: 330 F.3d 298
• Parties: HOUSTON POLICE OFFICERS' UNION; Hans Marticiuc; Andrea Burke; Steven Cain; Richard Hahn; Michael Lumpkin; Shawn Palin; Clyde Rooke; Steven Murdock; Eight Hundred Eighty-Nine Additional Consenters, Plaintiffs-Appellants, v. CITY OF HOUSTON, TEXAS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

330 F.3d 298

HOUSTON POLICE OFFICERS' UNION; Hans Marticiuc; Andrea Burke; Steven Cain; Richard Hahn; Michael Lumpkin; Shawn Palin; Clyde Rooke; Steven Murdock; Eight Hundred Eighty-Nine Additional Consenters, Plaintiffs-Appellants, v. CITY OF HOUSTON, TEXAS, Defendant-Appellee.

No. 01-21117.

United States Court of Appeals, Fifth Circuit.

April 29, 2003.

COPYRIGHT MATERIAL OMITTED

Michael T. Leibig (argued), Guerino Joseph Calemine, Zwerdling, Paul, Lebig, Kahn, Thompson & Wolly, Alexandria, VA, Robert Anthony Armbruster, Houston Police Officer's Union, Robert J. Thomas, Houston, TX, for Plaintiffs-Appellants.

John E. Fisher, Senior Asst. City Atty. (argued), The City of Houston, Legal Dept., Houston, TX, for Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before JONES, SMITH and SILER,^* Circuit Judges.

EDITH H. JONES, Circuit Judge:

The principal question raised in this appeal is whether section 207(o)(5) of the Fair Labor Standards Act ("FLSA") requires a public agency to allow its employees the use of accrued compensatory time on those days specifically requested by the employees, unless to do so would "unduly disrupt" the agency's function. In support of this proposition, appellant Houston Police Officers' Union and others (collectively, the "Union") argue that this court must defer to various statements and regulations of the Department of Labor construing section 207(o)(5). Because the statutory language is clear, however, deference is inappropriate. The summary judgment of the district court in favor of the City of Houston ("City") is accordingly affirmed.

BACKGROUND

The FLSA requires all employers, including states and their political subdivisions, to provide overtime compensation for employees who work more than 40 hours per week. 29 U.S.C. § 207 (2003). In the private sector, compensation for excess hours is to be paid at a rate of not less than one-and-a-half times the employee's hourly wage. Id. at § 207(a)(1). To ease the burden on public employers, Congress allows these entities to provide overtime compensation in the form of compensatory time ("comp time") at a rate of one-and-a-half hours for every excess hour worked. Id. at § 207(o)(1). An employer that would utilize this provision must have a collective bargaining agreement with its employees or agreements with individual employees explicitly permitting such a practice. Id. at § 207(o)(2).

During the period covered by this litigation,¹ the Houston Police Department ("HPD") administered comp-time usage by way of a log known as the "Red Book," one of which was kept in each of the HPD's units. A unit's Red Book listed all of the officers in the unit who were scheduled, for whatever reason, to be off-duty on any given day. Each unit had a predetermined limit on the number of officers who could be off on a particular day. This limit was based on the shift commander's estimate of the unit's manpower needs. The primary considerations in formulating this estimate were the unit's anticipated workload (based on historical trends), the unit's efficiency, and the unit's ability to tolerate disruption in its operations. In general, the Shift Commanders (with approval from Division Commanders) limited the spaces in the Red Book to ten percent of the unit's staff. An officer wishing to use his accrued comp time had to sign his name in his unit's Red Book for the day(s) he wished to take off. If the Red Book's limit for the requested day had not been reached, the officer received his requested comp time.

The Union was displeased with this system, as it could frustrate an officer's attempt to choose the dates on which he would use comp time. Instead of allowing an individualized assessment of the inconvenience that an officer's absence on a particular day might place on his unit, the Red Book system imposed an inflexible ten-percent limit on all days. Forced by the department to work overtime at the HPD's convenience, members of the Union would have preferred to use comp time for their convenience.

The Union accordingly sued the City in federal court, alleging, inter alia, that the HPD's Red Book system violated the FLSA by failing to provide individualized assessments of the disruption that comp-time requests over and above the ten-percent limit might cause to the operations of the HPD.

Upon receiving cross-motions for summary judgment, the district court entered summary judgment for the City, holding that the FLSA does not grant the employees of public agencies the right to use their accrued comp time on days of their own choosing. The Union appealed.

STANDARD OF REVIEW

This court reviews the grant of summary judgment de novo, applying the same standards as the district court. Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1119 (5th Cir.1998); McInnis v. Alamo Cmty. Coll. Dist., 207 F.3d 276, 279 (5th Cir.1998). Summary judgment under Rule 56 of the Federal Rules of Civil Procedure is appropriate only "if ... the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).

A fact is material if it could affect the outcome of the lawsuit, and a dispute about a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Reviewing courts must look at the evidence and draw all inferences therefrom in a light most favorable to the non-moving party. Hibernia Nat'l Bank v. Carner, 997 F.2d 94, 97 (5th Cir.1993).

DISCUSSION

Two issues are raised on appeal: what is the proper interpretation of section 207(o)(5), and whether the HPD correctly applied the provision to its operations. We discuss each issue in turn.

I. Section 207(o)(5)

The FLSA provides, in pertinent part, that:

[a]n employee of a public agency which is a State, political subdivision of a State, or an interstate governmental agency —

(A) who has accrued compensatory time off ... and

(B) who has requested the use of such compensatory time,

shall be permitted by the employee's employer to use such time within a reasonable period after making the request if the use of the compensatory time does not unduly disrupt the operations of the public agency.

29 U.S.C. § 207(o)(5). The litigants offer two conflicting interpretations of this provision. The City contends that the phrase "within a reasonable period after making the request" obliges an employing public agency to authorize an employee's use of accrued comp time within a certain temporal range (a "reasonable period") following the date on which the request is made. Comp time may be delayed, nonetheless, in the event that the employee's desired usage would "unduly disrupt" the agency's operation.

Without gainsaying the plausibility of the City's interpretation, the Union advances another reading of this requirement: The employing agency must allow the employee's use of comp time on the day specifically requested, unless it would "unduly disrupt" the agency's operation. The Union fortifies its interpretation by arguing that it is advocated by the Department of Labor in at least three separate and legally relevant venues: (1) the statute's implementing regulations, Application of the Fair Labor Standards Act to Employees of State and Local Governments, 29 C.F.R. § 553 et seq. (esp. § 553.25), which the Department of Labor enacted in 1987, pursuant to formal notice-and-comment rulemaking ("Regulations");² (2) an opinion letter produced by the DOL's Wage and Hour Division in 1994, 1994 WL 1004861 ("Opinion Letter");³ and (3) the amicus brief filed by the Secretary of Labor in an action resembling the instant case, DeBraska v. City of Milwaukee, 131 F.Supp.2d 1032 (E.D.Wis. 2000) ("Amicus Brief").⁴

When construing a federal statute that has been interpreted by an administrative agency, courts look first to the language of the statute. If Congress has "directly spoken to the precise question at issue," i.e. "[i]f the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). If the statute is ambiguous, however the court does not simply impose its own construction on the statute, as would be necessary in the absence of administrative interpretation. Rather, ... the question for the court is whether the agency's answer is based on a permissible construction of the statute.

Id. at 843, 104 S.Ct. 2778. The Chevron doctrine thus requires a litigant, such as the Union, who would have a court defer to an agency's regulations, to jump two hurdles. He must show that the statute is in fact ambiguous regarding the question at bar, and he must demonstrate that the regulation's statutory interpretation, whether or not preferable, is permissible. Before considering the various statements from the Department of Labor, then, the statute must be carefully reviewed.

The text of section 207(o)(5) plainly defines the period between the date the employee submits his request and the date the employer allows the employee to use the comp time: the employee "shall be permitted ... to use such [comp] time within a reasonable period after making the request." 29 U.S.C. § 207(o)(5). As the City suggests, mandating a "reasonable period" for use of comp time is different from mandating the employee's chosen dates. The language offers a span of time to the employer, the beginning of which is the date of the employee's request.

The Union responds in two ways to this grammatically appealing interpretation. First, the Union...