Robertson v. Bd. of County Com'Rs County of Morgan, Civil Action No. 96-B-629.

CourtUnited States District Courts. 10th Circuit. United States District Court of Colorado
Writing for the CourtBabcock
Citation78 F.Supp.2d 1142
Decision Date09 December 1999
Docket NumberCivil Action No. 96-B-629.
PartiesMarian ROBERTSON, Paula Ace, Betty L. Anderson, Clinton Coffin, Jeff Littlefield, Bruce E. Snelson, Vince Talty, Timothy W. Willert, Mary Ann Wooldridge, Travis Hodge, Vicki Nida, Scott Mellinger, Janis Mayhan, and Tracy Robinson Plaintiffs, v. The BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF MORGAN, Defendant.
78 F.Supp.2d 1142
Marian ROBERTSON, Paula Ace, Betty L. Anderson, Clinton Coffin, Jeff Littlefield, Bruce E. Snelson, Vince Talty, Timothy W. Willert, Mary Ann Wooldridge, Travis Hodge, Vicki Nida, Scott Mellinger, Janis Mayhan, and Tracy Robinson Plaintiffs,
v.
The BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF MORGAN, Defendant.
Civil Action No. 96-B-629.
United States District Court, D. Colorado.
December 9, 1999.

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COPYRIGHT MATERIAL OMITTED

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COPYRIGHT MATERIAL OMITTED

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Jeffrey Menter, Littleton, CO, Jennifer Bisset, The Law Firm of Jennifer Bisset, Denver, CO, for plaintiffs.

George N. Monsson, County Attorney, Fort Morgan, CO, Pamela Skelton, Ritsema & Lyon, P.C., Denver, OH, for defendant.

MEMORANDUM OPINION AND ORDER

BABCOCK, District Judge.


In this Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (FLSA) action, Plaintiffs have filed two partial summary judgment motions pursuant to Fed.R.Civ. P. 56 concerning claims two, three, and five. Defendant Board of County Commissioners of the County of Morgan (the Board) files for summary judgment as to all five of Plaintiffs' FLSA claims. I construe Defendant's motion as a cross-summary judgment motion as to claims two, three, and five. Oral argument would not materially assist in the determination of these motions. After consideration of the motions and responses, I deny Plaintiffs' partial summary judgment motions and grant in part and deny in part Defendant's motion.

I.

The following facts are undisputed. Plaintiff Mary Ann Wooldridge worked in the Morgan County Communications Center as a dispatcher. The other Plaintiffs are current or former deputy sheriffs employed in the Morgan County Sheriff's Office as patrol officers, investigators, or jail officers. According to Plaintiffs, from approximately March 15, 1993 to the present,

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Defendant has not, pursuant to the FLSA, paid them properly for: 1) overtime; 2) compensatory time; 3) on call and waiting time; and 4) preliminary and postliminary shift time.

Gale Davey was Sheriff of Morgan County from January 1987 to January 1995. He was succeeded by Richard Jackson who served as Sheriff from January 1995 to January 1999. Currently, James Crone is the Morgan County Sheriff.

The following claims and motions are pending:

Claim Claim Pending SJ SJ Cross-Motions Grant/Deny
                No. Motions SJ Motions
                One Violation of Defendant None GRANT
                 FLSA, 29 U.S.C.
                 § 207(a)(1) Over-time
                 pay
                Two Violation of Plaintiffs Defendant DENY both motions
                 FLSA, 29 U.S.C.
                 § 207(k) No bona
                 fide 28-day work
                 period
                Three Violation of Plaintiffs (2) Defendant DENY all motions
                 FLSA, 29 U.S.C.
                 § 207(o) Compensatory
                 time
                Four Violation of Defendant - on - call None GRANT as to on-call
                 FLSA, 29 U.S.C. time only time except as
                 § 207 On call and to Plaintiff Willert
                 waiting time
                Five Violation of Plaintiff Defendant DENY both motions
                 FLSA, 29 U.S.C.
                 § 207 Pre- and
                 post-shift time
                
II.
SUMMARY JUDGMENT STANDARD

The very purpose of a summary judgment motion is to assess whether trial is necessary. White v. York Int'l Corp., 45 F.3d 357, 360 (10th Cir.1995). Fed. R.Civ.P. 56 provides that summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions, or affidavits show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The non-moving party has the burden of showing that there are issues of material fact to be determined. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A party seeking summary judgment bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, interrogatories, and admissions on file together with affidavits, if any, which it believes demonstrate the absence of genuine issues for trial. Celotex, 477 U.S. at 323, 106 S.Ct. 2548; Mares v. ConAgra Poultry Co., Inc., 971 F.2d 492, 494 (10th Cir.1992). Once a properly supported summary judgment motion is made, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried. Otteson v. U.S., 622 F.2d 516, 519 (10th Cir.1980); Fed.R.Civ.P. 56(e). These specific facts may be shown "by any of the kinds of evidentiary materials listed in Rule 56(c), except the pleadings themselves." Celotex, 477 U.S. at 324, 106 S.Ct. 2548.

If a reasonable juror could not return a verdict for the non-moving party, summary judgment is proper and there is no need for a trial. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. The operative inquiry is

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whether, based on all documents submitted, reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). However, summary judgment should not enter if, viewing the evidence in a light most favorable to the nonmoving party and drawing all reasonable inferences in that party's favor, a reasonable jury could return a verdict for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. at 252, 106 S.Ct. 2505; Mares, 971 F.2d at 494. Unsupported allegations without "any significant probative evidence tending to support the complaint" are insufficient, see White, at 360 (internal quote and citation omitted), as are conclusory assertions that factual disputes exist. Anderson, 477 U.S. at 247-48, 106 S.Ct. 2505. Where, as here, the parties file cross motions for summary judgment, I assume that no evidence need be considered other than that filed by the parties. Nevertheless, summary judgment is inappropriate if disputes remain as to material facts. James Barlow Family Ltd. Partnership v. David M. Munson, Inc., 124 F.3d 1321, 1323 (10th Cir.1997).

III.

As an initial matter, as part of its summary judgment motion, Defendant seeks judgment as a matter of law on all claims because: 1) the FLSA is unconstitutional as applied to the Board; and 2) with the exception of Plaintiff Wooldridge, the Board is not the Plaintiffs' employer. I deny the motion on these grounds.

A. Constitutionality of the FLSA, 29 § 201, et seq.

According to Defendant, pursuant to United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), section 207 of the FLSA is unconstitutional as applied to it because: 1) the FLSA does not contain any jurisdictional component to allow constitutional application to Defendant; and 2) the congressional findings and legislative history concerning the FLSA are insufficient to establish a constitutional nexus between local law enforcement and interstate commerce. See id. I disagree.

1. FLSA History

With the passage of the FLSA in 1938, Congress established a "comprehensive remedial scheme requiring a minimum wage and limiting the maximum number of hours worked, absent payment of an overtime wage for all hours worked in excess of the specified maximum number." Lamon v. City of Shawnee, Kan., 972 F.2d 1145, 1149 (10th Cir.1992). Originally, the states and their political subdivisions were expressly exempted from the FLSA. 52 Stat. 1060, 29 U.S.C. § 203(d) (1940). In 1966, Congress extended the FLSA's coverage to certain school, hospital, nursing home, and transit employees of state and local governments under the Fair Labor Standards Amendments of 1966. 80 Stat. 830-32, 29 U.S.C. § 203(d) (1966). The Supreme Court upheld the extension in Maryland v. Wirtz, 392 U.S. 183, 88 S.Ct. 2017, 20 L.Ed.2d 1020 (1968), stating that Congress acted within its power under the Commerce Clause. In 1974, Congress extended FLSA's reach to virtually all state and local government employees. Id. at 197-98, 88 S.Ct. 2017; FLSA Amendments of 1974, 29 U.S.C. § 203(d) and (x). In 1976, however, the Supreme Court overruled Wirtz and held that the 1966 and 1974 amendments were unconstitutional because the Commerce Clause does not empower Congress to enforce the FLSA against state and local governments "in areas of traditional governmental functions," including the provision of police protection. National League of Cities v. Usery, 426 U.S. 833, 851-52, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976).

Less than a decade later, the Court turned full circle, stating that National League of Cities' "traditional governmental function" test was "unsound in principle and unworkable in practice." Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 546, 105 S.Ct. 1005,

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83 L.Ed.2d 1016 (1985). As a result, the FLSA was and continues to be applicable to state and local governments. See id; Lamon, 972 F.2d at 1149.

2. The Commerce Clause and the Effect of Lopez

The Commerce Clause provides, in relevant part, that Congress shall have the power "[t]o regulate Commerce ... among the several States ...," U.S. Const. art. I, § 8, cl. 3, and "[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers...." Art. 1, § 8, cl. 18. Under the Commerce Clause, Congress has the authority to regulate three types of activities: (1) the use of channels of interstate commerce; (2) the instrumentalities of interstate commerce; and (3) activities that substantially affect interstate commerce. See Lopez, 514 U.S. at 558-59, 115 S.Ct. 1624.

The Commerce Clause has been employed by Congress to promulgate wideranging types of legislation. The Supreme Court stated that, "the Commerce Clause is a grant of plenary authority to Congress. This power is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the Constitution." Hodel v. Virginia Surface Mining & Reclamation Ass'n, Inc., 452 U.S. 264, 276, 101 S.Ct. 2389, 69 L.Ed.2d 1 (1981). Legislation enacted pursuant to Commerce Clause authority is upheld by the federal...

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38 practice notes
  • Brubach v. City of Albuquerque, Civ. No. 10–CV–1113 MV/ACT.
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • September 27, 2012
    ...overtime violation provided the briefing periods exceed the FLSA's weekly overtime threshold. See Robertson v. Bd. of County Commr's, 78 F.Supp.2d 1142, 1155 (D.Colo.1999) (plaintiffs who worked a fifteen-minute mandatory pre-shift briefing period may be entitled to overtime compensation). ......
  • Brubach v. City of Albuquerque, Civ. No. 10-CV-1113 MV/ACT
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • September 27, 2012
    ...overtime violation provided the briefing periods exceed the FLSA's weekly overtime threshold. See Robertson v. Bd. of County Commr's, 78 F. Supp. 2d 1142, 1155 (D. Colo. 1999) (plaintiffs who worked a fifteen-minute mandatory pre-shift briefing period may be entitled to overtime compensatio......
  • Brubach v. City of Albuquerque, Civ. No. 10-CV-1113 MV/ACT
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • September 27, 2012
    ...overtime violation provided the briefing periods exceed the FLSA's weekly overtime threshold. See Robertson v. Bd. of County Commr's, 78 F. Supp. 2d 1142, 1155 (D. Colo. 1999) (plaintiffs who worked a fifteen-minute mandatory pre-shift briefing period may be entitled to overtime compensatio......
  • Maciel v. City of Los Angeles, No. CV 06-00249 RSWL (CWx).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • May 29, 2008
    ...a "pure gap time" claim is untenable. See Monahan, 95 F.3d at 1284; Hensley, 786 F.2d at 357; Robertson v. Board of County Comm'rs, 78 F.Supp.2d 1142, 1159 (D.Colo. 1999). This Court finds the latter approach In this context, the FLSA requires overtime be paid for any hours worked over 1712......
  • Request a trial to view additional results
38 cases
  • Brubach v. City of Albuquerque, Civ. No. 10–CV–1113 MV/ACT.
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • September 27, 2012
    ...overtime violation provided the briefing periods exceed the FLSA's weekly overtime threshold. See Robertson v. Bd. of County Commr's, 78 F.Supp.2d 1142, 1155 (D.Colo.1999) (plaintiffs who worked a fifteen-minute mandatory pre-shift briefing period may be entitled to overtime compensation). ......
  • Brubach v. City of Albuquerque, Civ. No. 10-CV-1113 MV/ACT
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • September 27, 2012
    ...overtime violation provided the briefing periods exceed the FLSA's weekly overtime threshold. See Robertson v. Bd. of County Commr's, 78 F. Supp. 2d 1142, 1155 (D. Colo. 1999) (plaintiffs who worked a fifteen-minute mandatory pre-shift briefing period may be entitled to overtime compensatio......
  • Brubach v. City of Albuquerque, Civ. No. 10-CV-1113 MV/ACT
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • September 27, 2012
    ...overtime violation provided the briefing periods exceed the FLSA's weekly overtime threshold. See Robertson v. Bd. of County Commr's, 78 F. Supp. 2d 1142, 1155 (D. Colo. 1999) (plaintiffs who worked a fifteen-minute mandatory pre-shift briefing period may be entitled to overtime compensatio......
  • Maciel v. City of Los Angeles, No. CV 06-00249 RSWL (CWx).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • May 29, 2008
    ...a "pure gap time" claim is untenable. See Monahan, 95 F.3d at 1284; Hensley, 786 F.2d at 357; Robertson v. Board of County Comm'rs, 78 F.Supp.2d 1142, 1159 (D.Colo. 1999). This Court finds the latter approach In this context, the FLSA requires overtime be paid for any hours worked over 1712......
  • Request a trial to view additional results

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