Rotondo v. City of Georgetown, SC
| Decision Date | 22 November 1994 |
| Docket Number | Civ. A. No. 2:93-1980-18. |
| Citation | 869 F. Supp. 369 |
| Parties | Robert ROTONDO, Richard A. Butts, Lorenza Cobb, Norman Holmes, Willie L. Lawrence, George M. Anderson, Bobby Lee Pack, Nathaniel Giles, Collie E. Ward, Willie G. McCrea, Robert M. Richardson, Michael Morris, Johnny McDonald, Justin L. Burkett, William R. Johnson, Franklin Nelson, Sr., William H. Mills, Sr., Randy L. Petty, Dennis J. Altman, Willie Linen, and Michael Armstrong, Plaintiffs, v. CITY OF GEORGETOWN, SOUTH CAROLINA, Defendant. |
| Court | U.S. District Court — District of South Carolina |
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Timothy F. Rogers, Columbia, SC, Thomas A. Woodley, Gregory F. McGillivary, Mark F. Wilson, Washington, DC, for plaintiff.
Linda Peace Edwards, Stephen F. Savitz, Columbia, SC, for defendant.
This matter is before the court on cross-motions for summary judgment. The case arises under the Fair Labor Standards Act (FLSA), 29 U.S.C.A. § 207(k) (Supp.1994). At issue is whether twenty-one current and former firefighters for the City of Georgetown, South Carolina, are due any overtime compensation under the Act.
In April 1985 in the landmark case Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985), the United States Supreme Court held that the it was constitutional to apply the overtime provisions of the FLSA to state and municipal governments. Id. at 555-556, 105 S.Ct. at 1019-20. At that time, Georgetown firefighters were scheduled by the City of Georgetown ("City") to work "24/48" tours of duty whereby the firefighters worked for a twenty-four hour period, followed by forty-eight hours of off-duty time. In response to Garcia, on July 5, 1985, the Georgetown City Administrator, David W. Treme, issued letters to the currently employed firefighters1 ("Group I") informing them that the City was increasing their work shift to twenty-four hours and fifteen minutes and further stating that the City had designated certain hours during the work shift as sleep and meal periods. Mr. Treme's letter stated that eight hours of each day would be considered sleep time, two hours would be considered meal time, and that sleep time and meal time would not be considered work time for the calculation of overtime pay. The letter also stated that "the Department of Labor has always recognized that employees on such a schedule — regardless of their job or employer — are not entitled to have each hour in 24 considered an hour of work." Mr. Treme further notified the firefighters that they would receive a small pay raise. The Group I Plaintiffs had to sign the letter acknowledging its receipt and return it to the City. The City hired the remaining twelve Plaintiffs2 ("Group II") at various times over the next eight years.
After the schedule change in July of 1985, most of the Group I firefighters questioned the new pay plan and complained to the Fire Chief. There is also evidence that some of the firefighters complained to their shift captains, and one Plaintiff testified at deposition that he had complained to a City Council member. However, most of the complaints were directed to superior fire fighting personnel within the walls of the fire station. No firefighter registered a complaint in writing to anyone at the station or to any city official. According to these Plaintiffs, most of their complaints were met with the answer that the new pay plan was "the law," and they had to accept the changes whether they liked them or not.
In February 1993, the City modified its pay plan to be based on a twenty-one day work period in which sleep time would be included as work hours for the purposes of computing overtime, but meal periods would remain excluded from the firefighters' compensable work hours. Further, the meal time was reduced from two one hour periods to two forty-five minute periods per shift. Under this revised meal schedule, the firefighters were verbally directed by the Chief to eat in two shifts so that one shift would be relieved of answering the phone while the other shift ate their meal. Finally, under the February changes, the City began to include holidays and vacation time as work hours and noted that if the firefighters worked their regular schedule, the new plan would allow for a very small amount of overtime pay per twenty-one day period.
Plaintiffs filed a Motion for Partial Summary Judgment as to the issue of Defendant's liability under the FLSA for overtime compensation for all meal and sleep periods under both pay plans for all Plaintiffs. On the other hand, Defendant's Motion for Summary Judgment asserts that the City is entitled to judgment as a matter of law in that: (1) the pay plan adopted by the City in July 1985 is lawful and the City had the agreement of the firefighters to the pay plan; (2) the pay plan adopted by the City in February 1993 is lawful and the meal periods are bona fide; and (3) that Plaintiffs Anderson, Johnson, Pack, and Ward are exempt from the overtime provisions of the FLSA because they are administrative and/or executive employees. In addition to counsels' lengthy oral argument on October 24, 1994, both sides submitted voluminous briefs and exhibits.
This case concerns meal periods and sleep periods over an eight year span and involves two groups of Georgetown firefighters — those employed at the time of the July 1985 change and those hired after that change. Because this court believes there is some merit to the argument of each side, for the reasons discussed below, this court will (1) deny Defendant's Motion for Summary Judgment with respect to the sleep time of the nine Group I firefighters because this court cannot find as a matter of law that there was any implied agreement to exclude sleep time, (2) deny Defendant's Motion for Summary Judgment with respect to Plaintiffs Anderson, Johnson, Pack, and Ward because Defendant has waived its affirmative defense, (3) grant Defendant's Motion for Summary Judgment with respect to the sleep time of the twelve Group II Plaintiffs because this court finds that there was an implied agreement as a matter of law with respect to their sleep time exemptions, (4) grant Defendant's Motion for Summary Judgment in finding that the 1985 extension of the work day to comply with Garcia was lawful and further that the current twenty-four hour fifteen minute tour of duty is also lawful, (5) grant Plaintiff's Motion for Summary Judgment by finding that neither Group's meal periods were bona fide as required by the FLSA and therefore cannot be exempted, (6) deny Plaintiff's Motion for Summary Judgment with respect to the sleep time of the Group I firefighters because the court cannot find that there was not an implied agreement as a matter of law to exclude the sleep time.
To grant a motion for summary judgment, this court must find that "there is no genuine issue as to any material fact." Fed.R.Civ.P. 56(c). The judge is not to weigh the evidence, but rather to determine if there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986). If no material factual disputes remain, then summary judgment should be granted against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which the party bears the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). All evidence should be viewed in the light most favorable to the nonmoving party. Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir.1990). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, disposition by summary judgment is appropriate." Teamsters Joint Council No. 83 v. CenTra, Inc., 947 F.2d 115, 119 (4th Cir. 1991).
The FLSA clearly requires employers to pay employees overtime for hours worked in excess of forty per week. 29 U.S.C.A. § 207(a). However, there are three possible exemptions for work time that are relevant to the firefighters in this case. First, the employer can exclude sleep time for firefighters on a tour of duty greater than twenty-four hours only if there is an express or implied agreement between the employee and employer to exclude the sleep time. Absent such an agreement, the sleep time is compensable. 29 C.F.R. § 553.222(c). Second, the employer can exclude meal time for firefighters on a tour of duty greater than twenty-four hours only if the meal time meets two conditions: (1) there is an express or implied agreement between the employee and employer to exclude the meal time and (2) the excluded meal time is a "bona fide meal period" in which the "employee must be completely relieved from duty for the purposes of eating regular meals." 29 C.F.R. §§ 553.223(d), 785.19, 785.22. Third, the employer can exclude overtime pay to "any employee employed in a bona fide executive, administrative, or professional capacity." 29 U.S.C.A. § 213(a)(1); see 29 C.F.R. §§ 541.1 to 541.3.
As a foundational matter, "exemptions from or exceptions to the Act's requirements are to be narrowly construed against the employer asserting them." Johnson v. City of Columbia, 949 F.2d 127, 129-30 (4th Cir.1991) (quoting Donovan v. Brown Equip. & Serv. Tools, Inc., 666 F.2d 148, 153 (5th Cir.1982)). Further, the burden is on the City to show by clear and affirmative evidence that it is entitled to the FLSA exception. Id. at 130; Donovan v. United Video Inc., 725 F.2d 577, 581 (10th Cir.1984). Finally, the assertion of an exemption from the mandates of the FLSA is an affirmative defense that is waived if it is not specifically pleaded by a defendant. Renfro v. City of Emporia, 741 F.Supp. 887, 888 (D.Kan.1990), aff'd, 948 F.2d 1529, 1539 (10th Cir.1991).
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