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D'CAMERA v. DISTRICT OF COLUMBIA

June 21, 1988

LOUIS D'CAMERA, et al., Plaintiffs,
v.
DISTRICT OF COLUMBIA, Defendant



The opinion of the court was delivered by: PRATT

 JOHN H. PRATT, UNITED STATES DISTRICT JUDGE

 Plaintiffs, certain District of Columbia police officers at or below the rank of sergeant, bring this action against the District of Columbia ("the District") for allegedly unpaid overtime compensation under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq. (1982), as amended, Pub.L. 99-150 (1985). *fn1" By memorandum order dated July 7, 1987, this court held that the Fraternal Order of Police, an original plaintiff in this action, was not a proper party plaintiff under 29 U.S.C § 216(b), and thus had to be dismissed. Memorandum Order at 2-4. We also denied defendant's motion to dismiss or, in the alternative, for partial summary judgment in light of the District's failure to carry its evidentiary burden under Rule 56 of the Federal Rules of Civil Procedure. Id. at 4-5.

 Since this initial ruling, the parties have each moved for partial summary judgment. As briefed, the pleadings before the court raise two distinct legal questions of apparent first impression in this circuit: (1) whether the District's police sergeants are "bona fide administrative employees" and thus exempt from the FLSA's overtime provisions, 29 U.S.C. § 213(a)(1), and (2) whether the District can, consistent with the FLSA's overtime provisions, afford plaintiffs compensatory time off in lieu of monetary overtime pay. The court takes up each of these issues in turn.

 A. " Bona fide administrative employee" exemption

 In its motion for partial summary judgment, the District claims that the three types of sergeants employed in its police force -- patrol sergeants, investigative sergeants, and administrative/specialist sergeants -- are exempt from the FLSA's overtime provisions. If the District is correct, then the second issue before this court -- i.e., whether the District's particular overtime policy comports with the FLSA -- has bearing only as to those plaintiffs who are not sergeants. In claiming exemption, the District seeks refuge in section 13(a)(1) of the FLSA, 29 U.S.C. § 213(a)(1), which exempts from the Act's coverage "any employee employed in a bona fide executive, administrative, or professional capacity . . . ." Specifically, the District contends that sergeants are "bona fide administrative employees." This marks the second time the District raises this issue: in our order of July 8, 1987, we expressly refrained from resolving the matter because the District failed to adduce sufficient evidence that sergeants fell within this exemption.

 The District recognizes that it, as the employer, bears the burden of proving that its employees are exempt from the FLSA's overtime provisions. Corning Glass Works v. Brennan, 417 U.S. 188, 196-97, 41 L. Ed. 2d 1, 94 S. Ct. 2223 (1974); Idaho Sheet Metal Works v. Wirtz, 383 U.S. 190, 209, 15 L. Ed. 2d 694, 86 S. Ct. 737 (1966); Clark v. J. M. Benson Co., 789 F.2d 282, 286 (4th Cir. 1986). Moreover, exemptions from the FLSA's reach must be narrowly construed against the employer in order to further Congress' goal of affording broad federal employment protection. Mitchell v. Lublin, McGaughy & Assoc., 358 U.S. 207, 211, 3 L. Ed. 2d 243, 79 S. Ct. 260 (1959); Brock v. Louvers & Dampers, Inc., 817 F.2d 1255, 1256 (6th Cir. 1987). The District claims that sergeants are exempt from the FLSA under both the so-called "long test," 29 C.F.R. § 541.2(a) - (e)(1)(1987), and the so-called "short test," 29 C.F.R. § 541.2(e)(2)(1987). It is this court's conclusion, upon examination of both tests and the record herein, that the District has again failed to sustain its burden of demonstrating that its sergeants are "bona fide administrative employees."

 Unfortunately, the present record is virtually barren of such evidence. The District, apparently deeming its position as being self-evident, has neglected to provide evidentiary support pertinent to the various prongs of the exemption analysis. The District places principal reliance on a document entitled "Metropolitan Police Department Performance Standards." Ex. A to Defendant's Motion in Support of Partial Summary Judgment. According to the District, this document memorializes an officer evaluation system implemented by the police department in 1985, but soon thereafter abolished. The manual enumerates various tasks apparently performed by sergeants, but does so only by name rather than by description. It proceeds to assign weight to these tasks, and to list criteria for evaluating sergeants' fulfillment of these tasks.

 From this manual it is impossible to determine with any precision the nature of a sergeant's responsibilities. The District apparently presumes that even a casual perusal of this booklet would establish that more than half of a sergeant's time is devoted to administrative, nonmanual chores. Defendant's Reply at 3-5; 29 C.F.R. § 541.103 (suggesting fifty percent yardstick for determining primary duty). Defendant's facile conclusion is not supported by the present record. We cannot ascertain whether a sergeant devotes more time to the enumerated task "Handling Roll Call" than to "Using the Police Radio for Supervisory Purposes," or whether "Performing Administrative Tasks" predominates over "Supervising Routine Patrol Activities." Nor, for that matter, does the document indicate the extent to which these responsibilities involve manual as opposed to "office" work. The FLSA's overtime regulations instruct that job titles be disregarded in determining an employee's status, since "titles can be had cheaply and are of no determinative value." 29 C.F.R. § 541.201(b). The same must be true of lists of responsibilities unsupported by descriptions of what those responsibilities entail. In short, the manual, while arguably helpful in evaluating the job performance of particular sergeants, sheds little or no light on the question whether sergeants are "bona fide administrative employees." *fn2"

 In addition, an affidavit submitted by the chairman of plaintiffs' bargaining unit -- himself a District police officer -- attests that "most sergeants spend most of their time on the streets working with police officers, or performing routine administrative duties." Gary Hankins Aff. para. 4. This undermines somewhat the suggestion that sergeants are "office" employees entrusted with significant responsibility over major business decisions, and at least engenders speculation as to whether a sergeant's "primary duty" involves nonmanual work. 29 C.F.R. §§ 541.203, 541.206. The affidavit further declares that "sergeants have very little discretion in the performance of their duties," since their conduct is delimited by various departmental orders and persistent review by higher authorities. Hankins Aff. para. 4. Once again, the information furnished by the District affords us no principled means of determining the degree of discretion accorded sergeants. *fn3"

 
a predetermined amount constituting all or part of his compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed. Subject to the exceptions provided below, the employee must receive his full salary for any week in which he performs any work without regard to the number of days or hours worked.

 Id. § 541.118(a). The "exceptions" to this rule provide, in pertinent part, that the salaried status of an employee is not affected by deductions made when an employee is absent for a day or more for personal reasons, or for sickness or disability, if the employer is covered by a disability plan. Id. §§ 541.118(b), (c). The obverse of this rule, then, is that deductions in pay made for absences shorter than a full day are inconsistent with the FLSA's conception of a salaried employee. See Donovan v. Carls Drug Co., 7 ...


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