Powell v. Simon Management Group, L.P., 79544

• Citation: 960 P.2d 212,265 Kan. 197
• Decision Date: 29 May 1998
• Docket Number: No. 79544,79544
• Parties: , 4 Wage & Hour Cas.2d (BNA) 1200 Michael POWELL, Rick Lancaster, Rick Wolff, Ted Hogan, Mark Dutton, and Robert Sage, Appellants, and Tim Learned, Intervenor /Appellant, v. SIMON MANAGEMENT GROUP, L.P., Appellee.
• Court: United States State Supreme Court of Kansas

Page 212

960 P.2d 212

265 Kan. 197, 4 Wage & Hour Cas.2d (BNA) 1200

Michael POWELL, Rick Lancaster, Rick Wolff, Ted Hogan, Mark

Dutton, and Robert Sage, Appellants, and Tim

Learned, Intervenor /Appellant, v. SIMON MANAGEMENT GROUP, L.P., Appellee.

No. 79544.

Supreme Court of Kansas.

May 29, 1998.

Syllabus by the Court

1. The test to determine if meal break periods are compensable under the Fair Labor Standards Act is whether the employee's time is spent predominantly for the employer's benefit or for the employee's.

2. The record is examined and it is held: The district court did not err in finding that the employees predominantly benefited from how they spent their meal time break and granting the employer's motion for a directed verdict.

Jim L. Lawing, Wichita, argued the cause and was on the briefs for appellants.

Kelly J. Johnson, of Morrison & Hecker, L.L.P., Wichita, argued the cause, and Alan L. Rupe, of the same firm, was with him on the brief for appellee.

ALLEGRUCCI, Justice:

Six security officers and a maintenance worker, all full-time employees, filed this action under the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. (1994), (FLSA) against the shopping mall management firm which employed them. They alleged that they worked 2 1/2 hours overtime each week without compensation, in violation of 29 U.S.C. 207 (1994). They sought liquidated damages and an award of costs and attorney fees under 29 U.S.C. 216(b) (1994). The case was tried to the court, and judgment was entered for the employer. The employees appealed. This court granted employer's motion to transfer the case from the Court of Appeals to this court.

Plaintiffs/appellants Michael Powell, Rick Lancaster, Rick Wolff, Ted Hogan, Mark Dutton, and Robert Sage were at pertinent times security officers employed by defendant/appellee Simon Management Group, L.P., (Simon Group) a shopping mall management firm. Intervenor/appellant Tim Learned was at pertinent times employed by the Simon Group as a maintenance worker. Christine Viles and John Bates supervised the employees for the Simon Group. They testified for defendant.

The employees' workday was 8 1/2 hours long, including a 1/2-hour uncompensated meal break. They sought compensation for the meal break on the theory that they were required to continue rendering service to the employer during the meal break. The security officers monitored their radios and sometimes responded to calls during the meal break, and they believed that they were required to do so. The Simon Group's position was that the security officers were mistaken in that belief. The supervisors, however, had not corrected the mistaken belief. The maintenance worker also was required to monitor the radio and respond to calls during his meal breaks. Any worker who missed his lunch break to respond to a call could note it on his time card and receive compensation for the time.

After trial and the subsequent submission of proposed findings of fact and conclusions of law by the parties, the trial judge stated that he was granting the Simon Group's motion for directed verdict, which had been made at the close of the plaintiffs' testimony. Having done so, the judge went further to "consider the evidence as a whole." He explained to counsel that he was "trying to save [counsel] another trip back to the well." In this endeavor, the trial judge said he made "findings on the basis of the evidence as a whole, where I do weigh credibility and--determine credibility and weigh the evidence." He further explained: "Well, I'm saying that even when we come to the point of the--on the motion for directed verdict, that even if I considered in light most favorable to the plaintiffs and intervenor, what they understood, that that's not sufficient as a matter of law to get them over the bridge."

There are several unusual circumstances that make it difficult to review the "facts" of this case on appeal. One confounding circumstance is the trial judge's making alternative rulings. He granted the Simon Group's motion for a directed verdict, but he also took all the evidence into account as a fallback measure. When a motion for directed verdict has been granted, this court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling was made. Simon v. National Farmers Organization, Inc., 250 Kan. 676, 683, 829 P.2d 884 (1992). The trial judge did not make a statement of the evidence resolved against the Simon Group. This court is not in a position to review the evidence independently because the record on appeal does not contain a full trial transcript. "An appellant has the burden to designate a record sufficient to establish the claimed error. Without an adequate record, an appellant's claim of alleged error fails." Smith v. Printup, 254 Kan. 315, Syl. 14, 866 P.2d 985 (1993). When the trial court makes findings of fact and conclusions of law and enters judgment at the conclusion of the evidence, this court generally is to determine whether the findings are supported by substantial competent evidence and whether the findings are sufficient to support the trial court's conclusions of law. Tucker v. Hugoton Energy Corp., 253 Kan. 373, Syl. p 1, 855 P.2d 929 (1993). In this case, however, appellants do not challenge the trial judge's findings of fact. "Determinations of fact, unappealed from, are final and conclusive." Justice v. Board of Wyandotte County Comm'rs, 17 Kan.App.2d 102, 109, 835 P.2d 692, rev. denied 251 Kan. 938 (1992). The trial judge in this case, however, generally failed to determine issues of credibility or to resolve inconsistent testimony except by inference. As a result, his "determinations of fact," which are unchallenged by the appellants, are more often than not merely recitals of who said what. With all this in mind, we turn to a patched-together account.

The district court stated aloud the following findings of fact:

"[The employees] understood that they were to monitor their radios during meal breaks, that they were expected to, and that, further, they were to respond to calls and to interrupt their meals if there was no one else available to respond to the situation that had developed, or if there was an emergency requiring more than the otherwise available officers.... [I]t's far and away very probable that [supervisors] Ms. Viles and Mr. Bates knew the plaintiffs were routinely monitoring their radios during meal breaks, and apparently took no action to instruct the plaintiffs to do otherwise."

Tim Learned's testimony that he was required to monitor the radio, that a response by him was required more often than not, and that he was reprimanded for not responding to direct radio calls was not contradicted or rebutted.

The testimony of the other employees to the same effect was contradicted.

The meal breaks were to be taken when time permitted and with the supervisor's approval.

The employees were not required to remain on mall premises during meal breaks.

The remaining findings of fact were made by the trial judge from the bench by referring to the proposed findings filed by the parties. The trial judge expressly rejected the following two of the Simon Group's proposed findings of fact:

"34. Wolff also testified that Viles once told him that because the security guards screwed around so much, the extra half-hour on their shift 'didn't matter.' Viles denied ever having said this.

....

"49. Wolff also testified that he had once spoken with Viles when she was crying, and that she had told him she was on medication and had trouble remembering things. Viles denied that this conversation ever took place. Viles further testified that she had not been to see a doctor in several years, and that she had never been on medication which caused her to forget things."

The trial judge rejected plaintiffs' proposed finding No. 5 on account of its including the phrase "at all times." The proposed finding states:

"5. A written policy required security officers to monitor their radios 'at all times.' Defendant's agents claim this policy did not apply to plaintiffs' meal breaks because there is an unwritten policy to that effect. Such claims are not credible, especially when neither supervisory official who testified could recall transmitting this information to any of the plaintiffs."

The trial judge adopted the following two of plaintiffs' proposed findings with the qualification that the subject was what plaintiffs believed or understood to have been the case rather than what they knew or what actually occurred:

"8. Although also in dispute, the Court finds by a preponderance of the evidence that all plaintiffs were directed to remain in radio contact whenever they took meal breaks; and all did so. Furthermore, the testimony of John Bates, Ms. Viles' supervisor, established he was aware security officers monitored their radios when they took meal breaks. It is also acknowledged by defendant's management the security officers were directed not to be seen having lunch with certain people, including other officers or employees of retail stores in the Mall. Rick Wolff was told to avoid having his lunch break with a Mall employee he was dating in an area of the security office where it would not have been possible for the pair to be seen.

"9. All of the security officers and the intervenor were subject to emergency calls while they were on their meal breaks, and their failure to respond to a call while eating exposed them to disciplinary measures. Security officers remained in uniform and were expected to respond to crimes committed in their presence. They also were required to report contacts with shoppers that occurred during their meal breaks.

"The intervenor usually had lunch with his supervisors and other maintenance crew members while they remained in radio contact with a dispatcher. He also had to respond to calls for assistance...