Leever v. Carson City

• Decision Date: 04 March 2004
• Docket Number: No. 02-16525.,02-16525.
• Citation: 360 F.3d 1014
• Parties: Paula LEEVER, Plaintiff-Appellant, v. CARSON, CITY of; Consolidated Municipality of Carson City, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

360 F.3d 1014

Paula LEEVER, Plaintiff-Appellant, v. CARSON, CITY of; Consolidated Municipality of Carson City, Defendants-Appellees.

No. 02-16525.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 9, 2003 — San Francisco, California.

Filed March 4, 2004.

Day R. Williams, Carson City, Nevada, for the plaintiff-appellant.

Mark Forsberg, Deputy District Attorney, Carson City, Nevada, for the defendants-appellees.

Appeal from the United States District Court for the District of Nevada; Robert A. McQuaid, Magistrate Judge, Presiding.

Before: BETTY B. FLETCHER and A. WALLACE TASHIMA, Circuit Judges, and LOUIS H. POLLAK, District Judge.^*

OPINION

TASHIMA, Circuit Judge:

Paula Leever, a sheriff's deputy, appeals from the district court's order granting summary judgment in favor of her employer, Carson City (the "City"), and denying her own motion for partial summary judgment. Leever sued the City for unpaid overtime wages pursuant to the Fair Labor Standards Act, 29 U.S.C. §§ 201-219 ("FLSA"), alleging that the City failed to compensate her for overtime work spent caring for her assigned police dog. The City contends that it was exempt from the overtime provisions of the FLSA pursuant to 29 C.F.R. § 785.23 because it had a "reasonable agreement" to compensate Leever for her overtime work by way of a biweekly flat fee. Leever contends that she did not have an agreement with the City, and that, even if she did, the agreement was not reasonable as a matter of law. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse and remand.

BACKGROUND

Leever began her career as a deputy with the Carson City Sheriff's Department in 1992. Leever was assigned to "canine" duty in 1995. As part of her responsibilities as a canine officer, Leever was required to care for and kennel her assigned police dog, "Scout," during her off-duty hours. Leever was responsible for grooming, feeding, bathing, and exercising Scout, and for maintaining Scout's physical and mental health. In addition, Leever was required to clean Scout's kennel regularly and expend extra effort to keep her own home clean due to the presence of the dog. Finally, Leever was required to spend off-duty hours training and socializing Scout in order to maintain Scout's fitness as a police dog. Leever claims that, on average, she spent 28 off-duty hours per week caring for and training Scout. The City assigned Leever an official vehicle to transport Scout to and from work, and it paid all of the costs associated with caring for and feeding Scout.

The City knew that Leever spent off-duty time caring for and training Scout and it admits that caring for and training Scout was compensable work under the FLSA. Rather than pay overtime wages, however, the City agreed to compensate Leever for her overtime work by way of a flat-fee salary differential. In 1995, the City and the Carson City Sheriff's Protective Association (the "Union"), which is the exclusive bargaining agent for Sheriff's deputies employed by the City and of which Leever is a member, negotiated a salary differential of $60 per bi-weekly pay period as compensation for the off-duty hours spent by canine officers working with their dogs. The term was incorporated into the 1996-99 Collective Bargaining Agreement ("CBA") as follows:

CANINE OFFICER: An officer permanently assigned to canine duty shall receive a salary differential of $60.00 per pay period [2 weeks] for the care — and feeding of a dog.

The City did not ask Leever how much time she spent caring for Scout during her off-duty hours or attempt on its own to approximate the number of off-duty hours worked by canine officers when arriving at the salary differential. Rather, the City intended to establish a "flat-rate enhancement" for canine officers "in recognition of their jobs." In determining the amount of the salary differential, the City relied on figures it obtained from an informal survey of the compensation other Nevada law enforcement agencies provided to their canine officers.

Leever sued the City, alleging that she was entitled to overtime pay pursuant to the FLSA for her off-duty hours spent working with Scout. At the close of discovery, the City moved for summary judgment on the ground that it was exempt from the overtime provisions of the FLSA because it had a "reasonable agreement" under 29 C.F.R. § 785.23 with Leever to compensate her at a flat rate for her overtime work caring for Scout. Leever opposed the City's motion and moved for partial summary judgment as to the City's liability on the ground that § 785.23 did not apply because she never agreed to accept a flat fee as payment for her overtime work and that, even if she did, the agreement was not "reasonable." The district court granted the City's motion and denied Leever's. Although the district court recognized that the salary differential was the equivalent of only one hour's pay per week, which was "insufficient for the tasks involved" in caring for and training Scout, it found that the agreement was reasonable as a matter of law primarily because it was negotiated at arms-length between the City and the Union. Leever timely appealed.

STANDARD OF REVIEW

We review the grant or denial of summary judgment de novo. Hargis v. Foster, 312 F.3d 404, 409 (9th Cir.2002). Viewing the evidence in the light most favorable to the nonmoving party, we must determine whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir.2001) (en banc). The FLSA "is to be liberally construed to apply to the furthest reaches consistent with Congressional direction." Klem v. County of Santa Clara, 208 F.3d 1085, 1089 (9th Cir.2000).

ANALYSIS

I.

The FLSA requires employers to pay overtime wages equal to one and one-half times the employee's regular rate for work performed in excess of 40 hours per week. 29 U.S.C. § 207(a). Law enforcement employers are governed by a slightly more permissive regime for computing overtime hours. See 29 U.S.C. § 207(k). The City does not dispute that Leever spent off-duty hours caring for Scout in addition to the work she performed during her 40-hour work week, and it concedes that caring for Scout was compensable work under the FLSA.¹ The City contends, however, that it was exempt from the overtime provisions of the FLSA pursuant to 29 C.F.R. § 785.23.² That regulation provides an exemption from the overtime pay requirement for employers whose employees work from their homes for extended periods of time, such that it would be difficult to compute the exact number of hours actually worked by the employee. Id. In those circumstances, an employer and an employee are permitted to agree on an alternative means of compensating the employee for overtime work, so long as the agreement is "reasonable" and takes into account "all of the pertinent facts." Id. The regulation reads, in relevant part:

Employees residing on employer's premises or working at home.

An employee who resides on his employer's premises on a permanent basis or for extended periods of time is not considered as working all the time he is on the premises. Ordinarily, he may engage in normal private pursuits and thus have enough time for eating, sleeping, entertaining, and other periods of complete freedom from all duties when he may leave the premises for purposes of his own. It is, of course, difficult to determine the exact hours worked under these circumstances and any reasonable agreement of the parties which takes into consideration all of the pertinent facts will be accepted.

Id.

Thus, in order to qualify for the exemption, the City has the burden of proving, "plainly and unmistakably," that (1) there was an agreement to compensate Leever for her overtime work caring for Scout, and (2) the agreement was "reasonable," having taken into account "all of the pertinent facts." See Brigham, 357 F.3d at 940 ("§ 785.23 ... suggests that the parties' agreement should be accepted only if it is `reasonable' in light of the `pertinent facts.'").

II.

At the outset, Leever contends that she did not have an agreement with the City to be compensated for her overtime work caring for and training Scout. The City has shown otherwise. Although the City did not negotiate the salary differential with Leever directly, it negotiated the 1996-99 CBA with the Union, which was acting as Leever's representative and exclusive bargaining agent. Leever contends that because she was not invited to participate in the negotiations, she never agreed to the flat fee. She relies on Holzapfel v. Town of Newburgh, 145 F.3d 516, 526 (2d Cir.1998) (noting that there is no agreement for the purpose of § 785.23 where the terms are "unilaterally imposed" by the employer). We disagree. The uncontroverted evidence shows that the Union was authorized to represent Leever in contract negotiations and that the Union negotiated on Leever's behalf. The fact that Leever did not directly participate in the negotiations does not undermine the existence of the agreement itself.³

III.

The City failed, however, to show that its agreement with Leever was "reasonable" as a matter of law. Although this circuit has not yet ruled on the meaning of "reasonable agreement" under § 785.23, three other circuits have interpreted the regulation in circumstances similar to the facts of this case.

In Holzapfel, a canine officer claimed that he spent up to 45 off-duty hours per week working with his assigned police dog, "Bandit." Holzapfel, 145 F.3d at 520. The employer instructed the officer to fill out a weekly overtime slip requesting two hours' pay rather than calculate the actual amount of time he spent caring for Bandit. Id. The court held that there was no "agreement" between the employee and the employer because the two-hour overtime limit was imposed on the employee unilaterally. Id. at 526. Even if...