Kavanagh v. City of Phoenix, Civ.A. 98-0377-PHXSMM.

• Decision Date: 02 March 2000
• Docket Number: No. Civ.A. 98-0378-PHXSMM.,No. Civ.A. 98-0377-PHXSMM.,Civ.A. 98-0377-PHXSMM.,Civ.A. 98-0378-PHXSMM.
• Citation: 87 F.Supp.2d 958
• Parties: Robert J. KAVANAGH, Plaintiff, v. CITY OF PHOENIX, Defendant. Eric Edwards, Plaintiff, v. City of Phoenix, Defendant.
• Court: U.S. District Court — District of Arizona

87 F.Supp.2d 958

Robert J. KAVANAGH, Plaintiff, v. CITY OF PHOENIX, Defendant.

Eric Edwards, Plaintiff, v. City of Phoenix, Defendant.

No. Civ.A. 98-0377-PHXSMM.

No. Civ.A. 98-0378-PHXSMM.

United States District Court, D. Arizona.

March 2, 2000.

MEMORANDUM AND ORDER

YOUNG, District Judge.¹

I. Introduction

These two related cases originally came before the Court upon cross motions for summary judgment. Following the lead of my distinguished colleague, Judge Robert Keeton, "it is my practice to discourage cross-motions [for summary judgement] and encourage, in their stead, a trial, mostly or entirely on stipulated facts." Robert E. Keeton, Keeton on Judging in the American Legal System (Lexis, 1999) 428. The advantage of this "case stated" procedure is that the Court can draw reasonable inferences from the totality of the agreed upon facts without having to draw inferences adverse to each moving party in turn, as is required by summary judgment practice. Id. at 429-33. Counsel here have embraced this procedure after notice and have thoroughly, skillfully, and professionally exploited it.

Substantively, these cases arise under the Fair Labor Standards Act (the "Act"), see 29 U.S.C. § 207(a)(2), and an Arizona statute which provides overtime compensation for certain law enforcement activities, see A.R.S. § 23-392. Each of the plaintiffs, Robert Kavanagh ("Kavanagh") and Eric Edwards ("Edwards"), contends that he is entitled to overtime compensation under both the Act and the Arizona statute. The City of Phoenix (the "City") argues in response that neither Kavanagh nor Edwards is entitled to overtime because each is an exempt employee not covered by the statutes.

II. Factual Background

Kavanagh is the head of the Phoenix police department's legal unit. See City Statement of Facts Regarding Pl. Kavanagh ¶¶ 19, 31 ("City SOF [Kavanagh]"). He is a graduate of the Arizona State University Law School and a member of the Arizona bar. See id. at ¶¶ 13, 15. He spends approximately 70% of his time providing legal advice, 25% of his time acting as a liaison between the Police Department, the City's Law Department, and outside law firms to coordinate the defense of lawsuits against the Police Department, 4% of his time conducting training for City employees, and 1% of his time appearing in court in defense of the Police Department and its employees. See id. at ¶ 40. He describes his major job duties as (1) providing legal advice to the Police Department, (2) providing training, (3) reviewing subpoenas for Police Department documents, (4) overseeing Legal Unit publications, (5) advising executive staff on legal issues, and (6) acting as a liaison to the City's Law Department. See id. at ¶ 42.

Kavanagh claims to have been classified by the City as falling within its "Police Supervisory and Professional" category of employees. See Kavanagh Statement of Facts at ¶ 2 ("Kavanagh SOF"). The City's Compensation and Benefits Guide states that Police Supervisory and Professional employees are entitled to overtime compensation at one and one half times their regular pay rate. See id. at ¶ 4. In addition, Kavanagh's leave requests are done in hourly increments, see id. at ¶ 9, and his sick time, vacation time and compensation time appear in hours on his pay stub and leave report, see id. at ¶¶ 11, 12. The City contends, however, that all City pay stubs, for both exempt and non-exempt employees, report sick time, vacation time and compensation time in hourly increments because the City's payroll computer requires it. See City SOF (Kavanagh) at ¶ 25. Kavanagh receives approximately $77,000 per year in compensation, paid bi-weekly and regardless of the number of hours actually worked during the pay period. See id. at ¶¶ 20-21. Kavanagh is allotted 14 hours of "compensatory time" by the City's payroll computers at the beginning of each year which then converts to vacation hours. See id. at ¶ 23.

In July, 1994, when Kavanagh was promoted to the position of Lieutenant, Law Specialist, he was placed at Step 6 of the City's pay scale. See id. at ¶ 55. In May, 1996, Patti Zins ("Zins"), the Police Fiscal Administrator, concluded that Kavanagh should have been placed at Step 3 of the City's pay scale, a mistake that resulted in Kavanagh's receiving $17,000 that the City believes he was not owed. See id. at ¶¶ 55, 57. To remedy the problem, the City decided to maintain Kavanagh at Step 7 of the pay scale (the point to which he had advanced from the mistaken Step 6) until such time as he would have progressed to Step 7 if he had been placed at Step 3 from the beginning. See City SOF (Kavanagh) at ¶¶ 55, 57. Kavanagh discussed this matter with Zins, Phil Kundin ("Kundin"), the Assistant Personnel Director for the City, and Ernie Bakin ("Bakin"), his immediate supervisor. See id. at ¶ 63. He did not appeal the decision of the Police Department to the City Manager. See id. at ¶ 62.

Edwards is a sworn police officer with the City of Phoenix Police Department. See Edwards Statement of Facts at ¶ 1 ("Edwards SOF"). He attended law school between 1992 and 1995, graduating in December of 1995. See City SOF Regarding Pl. Edwards at ¶¶ 7-11 ("City SOF [Edwards]"). In February, 1996, Edwards was promoted to the position of Sergeant and was assigned to the Police Department's Legal Unit. See id. at ¶ 13. In May, 1996, Edwards was sworn into the Arizona Bar and became a Legal Specialist within the Legal Unit. See id. at ¶ 14.

Like Kavanagh, Edwards claims to have been classified by the City as falling within its "Police Supervisory and Professional" category of employees, see Edwards SOF at ¶ 2, thereby becoming entitled to overtime compensation at one and one half times his regular pay rate. See id. at ¶ 4. Accounting for the incidents of Edwards' employment is done in the same hourly increments as is the case with Kavanagh, see id. at ¶¶ 8, 10, 11. Edwards receives approximately $65,000 per year in compensation, paid biweekly regardless of the number of hours actually worked during the pay period. See City SOF (Edwards) at ¶ 15.

Edwards' principal duties are: (1) providing legal advice to the Police Department in general; (2) providing training at recruit and in-service levels; (3) ensuring that all subpoenas for Police Department documents are reviewed; (4) overseeing Legal Unit publications; (5) lobbying the Arizona Legislature on behalf of the Police Department; and (6) coordinating the Police Department's lobbying efforts within the City's Intergovernmental Program. See id. at ¶ 27. He estimates that approximately 60% of his actual time is spent lobbying on behalf of the Police Department and 30% providing legal advice to the Department. See id. at ¶ 30. Prior to 1998, Edwards estimated that 45-50% of his time was spent providing legal advice and 45-50% lobbying. See id. at ¶ 32. Edwards relies on his law training when he performs as a lobbyist at the Arizona Legislature. See id. at ¶ 37. He does not require the approval of a superior in determining the issues upon which he will focus his lobbying efforts. See City SOF (Edwards) at ¶ 46. Edwards is, however, required by the City to be available in uniform on New Year's Eve, 1999, see Edwards SOF at ¶ 13, and he is required to attend all mandatory training for police sergeants, see id. at ¶ 17. Edwards is also subject to the jurisdiction of the police department's Disciplinary Review Board rather than the Executive Review Board. See id. at ¶ 9; Kundin Dep. 72:15-19. The City contends that the Disciplinary Review Board is prohibited from suspending exempt employees in less than full week increments. See City SOF (Edwards) at ¶ 24.

III. Discussion

Summary judgment is appropriate if, after reviewing the facts in the light most favorable to the nonmoving party, "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).

Kavanagh and Edwards argue that they are not exempt employees under the Act and therefore should be entitled to overtime pay at the rate of one and one half times their regular pay rate under A.R.S. § 23-392(A)(1).² In the alternative, they argue that they should be entitled to overtime compensation at their regular rate of pay under A.R.S. § 23-392(A)(2). The City contends that both Kavanagh and Edwards are exempt employees under the Act because each fits the "professional," "executive," and "administrative" exceptions to the Act's overtime requirements. Thus, the City argues, Kavanagh and Edwards are not entitled to time-and-a-half overtime pay. Moreover, the City argues that Kavanagh and Edwards are not entitled to overtime pay at their regular rates either, given the exception under A.R.S. § 23-392(B) for employees that fit the "administrative" or "executive" exemptions.

A. The Fair Labor Standards Act

Kavanagh and Edwards argue that the City has treated them as hourly rather than as salaried employees based upon a variety of evidentiary factors. First, they argue that their pay stub list their accrued vacation time, sick time, and compensation time in hourly increments. The City avers, and neither Kavanagh nor Edwards disputes, that the City's payroll computer must process the vacation and sick time of all employees, both exempt and non-exempt, in hourly figures. See City SOF (Kavanagh) at ¶ 25, City SOF (Edwards) at ¶ 20. Kavanagh and Edwards still accrue these benefits on a daily basis, despite the fact that they are reported hourly.

Second, Kavanagh and Edwards argue that they fall under the "Police Supervisory and Professional" category of the City's 1995-96 Compensation Benefits Guide. They make no effort to demonstrate why they should be so classified, nor whether they ever actually have been so classified. Moreover, they make no effort to argue that...