York v. City of Wichita Falls, Tex.

• Citation: 944 F.2d 236
• Decision Date: 11 October 1991
• Docket Number: No. 90-1817,90-1817
• Parties: 30 Wage & Hour Cas. (BNA) 929, 120 Lab.Cas. P 35,557 Robert R. YORK, et al., Plaintiffs-Appellees Cross-Appellants, v. CITY OF WICHITA FALLS, TEXAS, Defendant-Appellant Cross-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 236

944 F.2d 236

30 Wage & Hour Cas. (BNA) 929, 120 Lab.Cas. P 35,557

Robert R. YORK, et al., Plaintiffs-Appellees Cross-Appellants, v. CITY OF WICHITA FALLS, TEXAS, Defendant-Appellant Cross-Appellee.

No. 90-1817.

United States Court of Appeals Fifth Circuit.

Oct. 11, 1991.

Gregory D. Humbach, City Atty., Wichita Falls, Tex., Bettye S. Springer, Mark H. Hoppe, Haynes & Boone, Ft. Worth, Tex., for defendant-appellant cross-appellee.

Gregory K. McGillivary, Thomas A. Woodley, Mulholland & Hickey, Washington, D.C., for plaintiffs-appellees cross-appellants.

Appeals from the United States District Court for the Northern District of Texas.

Before CLARK, Chief Judge, GOLDBERG, and GARWOOD, Circuit Judges.

CLARK, Chief Judge:

I.

The City of Wichita Falls (City) appeals the district court's grant of summary judgment in favor of the plaintiffs on their claim that the City violated § 8 of the 1985 amendments to the Fair Labor Standards Act (FLSA). 29 U.S.C. § 215 (Supp.1989) (Historical and Statutory Notes). The plaintiffs cross-appeal the district court's determination of damages. Summary judgment was improper. The judgment appealed from is vacated and the cause is remanded for further proceedings.

II.

On February 19, 1985, the Supreme Court in Garcia v. San Antonio Metro Transit Authority, 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985), held that the FLSA applies to state employers (i.e., states or their political subdivisions which employ workers), and thus, state employers are obligated to pay their employees overtime at the same rate required for covered private employers. ¹

So that the financial impact of the overtime obligations of the FLSA would not overwhelm state employers, Congress, in November 1985, passed amendments to the FLSA giving state employers certain exceptions and postponing the effective date of the FSLA's overtime obligations to April 15, 1986. In § 8 of the amendments, Congress prohibited state employers from discriminating against an employee for asserting coverage under the FLSA. Section 8 provides:

A public agency which is a State, political subdivision of a State, or an interstate governmental agency and which discriminates or has discriminated against an employee with respect to the employee's wages or other terms or conditions of employment because on or after February 19, 1985, the employee asserted coverage under section 7 of the Fair Labor Standards Act of 1938 [section 207 of this title] shall be held to have violated section 15(a)(3) of such Act [subsec. (a)(3) of this section]. The protection against discrimination afforded by the preceding sentence shall be available after August 1, 1986, only for an employee who takes an action described in section 15(a)(3) of such Act [subsec. (a)(3) of this title].

29 U.S.C. § 215 note (West Supp.1991) (Historical and Statutory Notes), Pub.L. No. 99-150, § 8, 99 Stat. 791 (Nov. 14, 1985).

The City of Wichita Falls was told about Garcia in a conversation that Battalion Chief Gary Broyles had with the Fire Chief. Chief Broyles, also president of the International Association of Fire Fighters, Local 2186, showed the Fire Chief a memo discussing Garcia and asked if the fire fighters were due any overtime pay under Garcia. After this conversation, but before the amendments to FLSA were enacted, the City reduced its fire fighters' hourly wage rate in order to offset the increased cost of fire fighters' wages that would result when compensation at overtime rates was paid for overtime hours which were part of their regular work schedule. The City contended it chose to avoid additional financial expense in that way instead of reducing each fire fighters' yearly income or reducing fire fighting forces or equipment.

All 139 fire fighters employed by the City brought this action under § 8 complaining that the City unlawfully reduced their wage rate in response to their assertion of coverage under the FLSA. On cross motions for summary judgment, the district court ruled that Congress intended that § 8 be applied retroactively. York v. City of Wichita Falls, 727 F.Supp. 1076, 1079 (N.D.Tex.1989). The court determined that § 8 applied to actions taken by employers occurring between February 15, 1985, the date the Supreme Court decided Garcia, and November 14, 1985, the date on which § 8 was enacted. The court concluded that the City's pay revision was subject to scrutiny under § 8. The court further held that § 8 did not require that an employee (the fire fighters) prove that the employer (the City) acted with a discriminatory or retaliatory intent in reducing the wages. It was sufficient, in the court's view, that the City sought to circumvent the impact of the Garcia decision. York, 727 F.Supp. at 1080.

The court found that Battalion Chief Broyles properly asserted coverage on behalf of all the fire fighters. The court held that neither "Fire Captains" nor "Battalion Chiefs" were bona fide executives who would be exempt from coverage. Thus, the court determined that the City was obligated to pay overtime to these captains and chiefs pursuant to the FLSA.

The court calculated damages in a separate order. It awarded compensatory damages and "liquidated damages" in the amount of 20% of compensatory damages for post-April, 1986 work. However, the court declined to include leave time in the computation of overtime damages.

III.

On appeal the City argues that the district court erred in concluding that (a) § 8 of the 1985 amendments applies retroactively to their action, (b) § 8 does not require a showing of discriminatory intent or motive, (c) the fire fighters asserted coverage within the meaning of § 8, and (d) the fire captains and battalion chiefs were not executive employees exempt from the coverage under the FLSA. The fire fighters' cross appeal contends that the district court erred in allowing the City to exclude holiday, vacation and sick leave hours from the total hours worked when calculating the amount of overtime pay due. We address each of these claims in turn. This court reviews the issues presented on appeal from summary judgment de novo. Trial v. Atchison, Topeka & S.F.R. Co., 896 F.2d 120, 122 (5th Cir.1990).

A. Retroactivity

The district court applied § 8 to the City's new pay plan instituted on May 24, 1985. The City asserts that the language of § 8 does not clearly indicate that § 8 is to apply retroactively to municipal employers' actions which occurred before the date of its enactment, November 14, 1985, and that, if § 8 is construed as applicable to such actions, it is unconstitutional. We disagree.

When determining the intended operation of a statute, questions of retroactivity, like all others, are determined in the first instance by the statute's plain wording. If the statute is unambiguous, the inquiry into its intended operation is at an end. United States v. Turkette, 452 U.S. 576, 101 S.Ct. 2524, 2527, 69 L.Ed.2d 246 [1981]. The provisions of § 8 clearly indicate that the statute applied to the City's actions of May 24, 1985. In this case, the legislative history of § 8 reinforces the plain wording.

Section 8 applies when a local governmental employer "discriminates or has discriminated against an employee ... because on or after February 19, 1985, the employee or employees asserted coverage" under the FLSA. This court, in interpreting this provision, has concluded that § 8 was "in effect from February 19, 1985." Hendrix v. City of Yazoo City, 911 F.2d 1102 (5th Cir.1990). The purpose of § 8 was to deter state and municipal employers from discriminating against employees for asserting rights under the FLSA after the Supreme Court issued the Garcia decision and before the other provisions of the 1985 amendments took effect.

The City contends the legislative history indicates that § 8 was not intended to be applied retroactively. The Joint Explanatory Statement of the Committee of Conference, House Conference Report No. 99-357, states that § 8 was "intended to remain neutral with respect to any action by employees challenging the lawfulness of the employers' unilateral reduction of regular pay or fringe benefits instituted prior to enactment" of § 8. The City's construction of this statement is incorrect. This language merely indicates that lawsuits by employees challenging employers' actions which were "instituted prior" to the enactment of § 8 should be viewed in the same light as those brought after § 8 became effective. See 131 Cong.Rec. H9916 (daily ed. Nov. 7, 1985) (statement of Rep. Boulter).

The City also claims that the retroactive application of § 8 is unconstitutional. The City did not argue this claim to the district court. Because we determine below that this case should be remanded to the district court on other grounds, we pretermit any ruling on the City's constitutional claim. If it is raised on remand, the district court may examine it in the first instance.

B. Discriminatory Intent.

The district court concluded that a violation of § 8 is established when a plaintiff shows that a state or local governmental employer unilaterally alters a pay plan or lowers wages in response to an application of the FLSA. York, 727 F.Supp. at 1080. The court reasoned that neither proof of intent to discriminate nor proof of intent to retaliate against an employee who asserts coverage is required to establish such a violation. The City argues that the district court ignored the plain wording of § 8 and its supporting legislative history in so concluding. We agree.

Section 8 had a narrow window of application. It operated in the interval between the decision of Garcia and the adjustment of cities to the new FLSA coverage. It sanctioned an employer who "discriminates or has discriminated against an employee ... because ... the employee asserted coverage under [the FLSA]." (Emphasis added). On its face, this language is direct and clear. Webster's Third New International Dictionary defines "becau...