Johnson v. City of Columbia, S.C.

• Decision Date: 22 November 1991
• Docket Number: 90-1401,Nos. 89-1554,s. 89-1554
• Citation: 949 F.2d 127
• Parties: 30 Wage & Hour Cas. (BNA) 1027, 60 USLW 2336, 120 Lab.Cas. P 35,568 Randolph JOHNSON, Jr., Plaintiff-Appellee, v. CITY OF COLUMBIA, SOUTH CAROLINA, Defendant-Appellant. Randolph JOHNSON, Jr., Plaintiff-Appellee, v. The CITY OF COLUMBIA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 127

949 F.2d 127

30 Wage & Hour Cas. (BNA) 1027, 60 USLW 2336,

120 Lab.Cas. P 35,568

Randolph JOHNSON, Jr., Plaintiff-Appellee, v. CITY OF COLUMBIA, SOUTH CAROLINA, Defendant-Appellant.

Randolph JOHNSON, Jr., Plaintiff-Appellee, v. The CITY OF COLUMBIA, Defendant-Appellant.

Nos. 89-1554, 90-1401.

United States Court of Appeals Fourth Circuit.

Argued Oct. 2, 1990.

Decided Nov. 12, 1991.

As Amended Nov. 22, 1991.

Julian Heyward Gignilliat, Gignilliat, Savitz & Bettis, Columbia, S.C., argued (Linda Pearce Edwards, Vance J. Bettis, on brief), for defendant-appellant.

Thomas Aquinas Woodley, Mulholland & Hickey, Washington, D.C., argued (Gregory K. McGillivary, on brief), for plaintiff-appellee.

Before ERVIN, Chief Judge, RUSSELL, WIDENER, HALL, PHILLIPS, MURNAGHAN, SPROUSE, WILKINSON, WILKINS, and NIEMEYER, Circuit Judges. ^*

OPINION

ERVIN, Chief Judge:

This case is one of a series of four civil actions ¹ that were consolidated and heard by this court, sitting en banc. While all of these matters arose under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201, et seq., it subsequently developed that they were ill-matched and that the instant case was related only to Bodie v. City of Columbia, 934 F.2d 561 (4th Cir.1991). Here, the City of Columbia, South Carolina (City) appeals from a grant of summary judgment in favor of the plaintiff, Randolph Johnson, Jr. For the reasons hereinafter set forth, we affirm that decision.

I.

Randolph Johnson, Jr. (Johnson) went to work for the City as a fire fighter on June 30, 1975. He and his fellow fire fighters had a schedule of working for one day "on" followed by two days "off" until June 1985. After the Supreme Court handed down its decision in Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985), the City changed the fire fighters' schedule to require a 24 1/4 hour tour of duty with a two-week pay period. The new procedure also provided that sleep time and meal time would be excluded when the hours worked were computed. In October of 1985, thirty-six fire fighters, including Johnson, wrote identical letters to the City Manager (JA 223), reading in part:

"... I wish to complain that the City is in violation of the provisions of the Fair Labor Standards Act, ...

"I normally work one-hundred twelve (112) hours in my two-week pay period. The City has made no provisions to compensate the excess over one-hundred and six (106) hours per pay period by way of overtime pay, to which I understand I am entitled. In addition, effective June 10, 1985, the City added seventy-five (75) minutes to my pay period by increasing the duration of each shift by fifteen (15) minutes. It is also the practice of the City to exclude sleep time and meal time from overtime calculations.

"I do not consent to these actions. I ask that you take action to conform City pay policies in regard to myself and other employees of the Columbia City Fire Department to the provisions of the Fair Labor Standards Act...."

On October 21, 1985, the City Manager replied to these letters, informing the fire fighters that anyone who failed to consent to any conditions of employment could not continue working. He enclosed a written agreement (JA 25) to each fire fighter, advising him that unless he signed the document as written and delivered it personally to the Chief by 5 o'clock PM, October 24, 1985, then, "for the good of the City, you are discharged as of that date and time." By the stated deadline, Johnson and all of the other fire fighters who had written had signed the Agreement. (JA 26).

On February 3, 1989, Johnson filed a complaint in this case against the City asserting that the City had violated the FLSA by failing to pay him overtime for all hours worked in excess of the hourly levels set forth in § 7(k) of the FLSA, 29 U.S.C. § 207(k). He continued to state that he did not "agree" to the City's policy of refusing to treat sleep and meal time as "hours worked." He further alleged that this refusal deprived him of credit for having worked overtime. In addition, he challenged the right of the City to add 15 minutes to his 24 hour shift.

Upon learning of Johnson's lawsuit, the City Manager, on February 8, 1989, sent an "Inter-Office Memo" to Johnson (JA 139), providing in part:

"I have just been notified of your suit against the City under the Fair Labor Standards Act and more particularly of your 'declaration' which is attached to the complaint. I infer from these documents that you no longer agree to exclude sleep time and meal time from the computation of your hours worked under the Fair Labor Standards Act. Since the City does not agree to include sleep time and meal time in the computation of your hours of work, it would appear that you and the City do not have an employment agreement. I may be mistaken, so I will give you the opportunity to sign a newly dated copy of the agreement which you signed on October 21, 1985. You are to deliver it personally to the Fire Chief and, until you do so, you will not be permitted to work.

"Your job status until you sign the agreement is to be on annual leave. If you have no annual leave or if it is exhausted before this matter is resolved, your status will be unpaid leave of absence. Leave of absence status would mean that you must pay for your health insurance premiums and would be subject to having your job filled by another employee or by a new hire. It is unlikely, but nonetheless possible, that I will find it necessary for the good of the City to terminate your employment."

In response, on February 13, 1989, Johnson re-signed the copy of the Agreement which he had originally executed in 1985 (JA 140).

On June 8, 1989, the district court considered the motions for summary judgment filed by Johnson and by the City. Three months later, the court granted Johnson's motion for summary judgment and his motions for a preliminary and permanent injunction. The City timely appealed to this court.

II

The outcome of this dispute turns on whether Johnson expressly agreed to the exclusion of sleep time and meal time from the compensable hours that he worked.

Generally speaking, the FLSA clearly requires employers to pay employees overtime for all hours worked over forty in one week. 29 U.S.C. § 207(a). There are, however, certain exceptions and exclusions, including exclusions relating to both sleep time and meal time.

With regard to sleep time, the Department of Labor (DOL) acting under the FLSA, has issued a regulation designated as 29 C.F.R. § 553.222 which in its present form provides: ²

"(C) Sleep time can be excluded from compensable hours of work, however, in the case of police officers or fire fighters who are on a tour of duty of more than 24 hours, but only if there is an expressed or implied agreement between the employer and the employees to exclude sleep time. In the absence of such an agreement, the sleep time is compensable. In no event shall the time excluded as sleep time exceed 8 hours in a 24-hour period. If the sleep time is interrupted to such an extent that the employee cannot get a reasonable night's sleep (which, for enforcement purposes means at least 5 hours), the entire time must be counted as hours of work. [Emphasis supplied]."

The comparable regulations relating to meal times say:

"(d) In the case of police officers or fire fighters who are on a tour of duty of more than 24 hours, meal time may be excluded from compensable hours of work provided that the tests in 29 C.F.R. 785.19 and 785.22 are met."

29 C.F.R. § 553.223(c). 29 C.F.R. § 785.19 only permits the exclusion of meal time from compensable hours where a "bona fide meal period" is provided--i.e., "[t]he employee must be completely relieved from duty for purposes of eating regular meals." 29 C.F.R. § 785.19. A fire fighter like Johnson is not relieved of his duties during any time that might be designated "meal time" by the City.

"Exemptions from or exceptions to the Act's requirements are to be narrowly construed against the employer asserting them." Donovan v. Brown Equipment & Service Tools, Inc., 666 F.2d 148, 153 (5th Cir.1982); Usery v. Yates, 565 F.2d 93, 97 (6th Cir.1977). Since the City seeks to come within the meal time and sleep time exceptions, the burden is on the City to show that it is entitled to the benefits of those exceptions. See Clark v. J.M. Benson Co., 789 F.2d 282, 286 (4th Cir.1986); Mitchell v. Kentucky Finance Co., 359 U.S. 290, 291, 79 S.Ct. 756, 757, 3 L.Ed.2d 815 (1959); Usery v. Yates, 565 F.2d at 97. Thus, the City has the burden of showing that Johnson expressly agreed to the exclusion of sleep time and meal time from the compensable hours that he worked.

We note at this point that Johnson's case is quite different from that of the plaintiff in our recent case Bodie v. City of Columbia, 934 F.2d 561 (4th Cir.1991). ³ Both Bodie and Johnson worked for the City, and their claims before us arose from the same actions by the City. However, there are significant factual distinctions between the two cases. Unlike Johnson, Bodie never protested the changes imposed by the City. Bodie, 934 F.2d at 563. In fact, Bodie did not protest the City's actions until after he retired from working for the City. Id. In contrast, Johnson formally protested the City's actions by writing a letter along with 35 other fire fighters. Thereafter, he also displayed his protest by filing this lawsuit. ⁴

In Bodie, this Court held that there was an implied agreement between the City and Bodie based upon Bodie's continued employment, his continued receipt of pay checks, and his failure to protest the City policies. Id. at 563-64. Due to the different circumstances surrounding Johnson's continued employment and that of Bodie, we find that Bodie does not control the outcome of this case. Rather, we must decide in this case whether Johnson entered an express agreement with the City.

III

The district court...