Niendick v. Salem, City of
ORDER denying pltf's 10 Motion for Partial Summary Judgment. Signed by Judge Susan Webber Wright on 5/16/12. (vjt)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
DOUG NIENDICK, individually and on
behalf of others similarly situated
CITY OF SALEM
NO: 1:11CV00043 SWW
Plaintiff Doug Niendick brings this Fair Labor Standards Act suit against his former
employer, the City of Salem, Arkansas (“the City”), alleging that the City failed to pay him
overtime during his employment as a police officer. Before the Court is Plaintiff’s motion for
summary judgment (docket entries #10, #11, #12), the City’s response in opposition (docket
entries #18, #19), and Niendick’s reply (docket entry #20). After careful consideration, and for
reasons that follow, Plaintiff’s motion is denied.
Summary judgment is appropriate when “the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material fact
and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). As a
prerequisite to summary judgment, a moving party must demonstrate “an absence of evidence to
support the non-moving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
Once the moving party has properly supported its motion for summary judgment, the nonmoving party must “do more than simply show there is some metaphysical doubt as to the
material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
The non-moving party may not rest on mere allegations or denials of his pleading but
must “come forward with ‘specific facts showing a genuine issue for trial.’” Id. at 587 (quoting
Fed. R. Civ. P. 56(e)). “[A] genuine issue of material fact exists if: (1) there is a dispute of fact;
(2) the disputed fact is material to the outcome of the case; and (3) the dispute is genuine, that is,
a reasonable jury could return a verdict for either party.” RSBI Aerospace, Inc. v. Affiliated FM
Ins. Co., 49 F.3d 399, 401 (8th Cir. 1995).
The following facts are undisputed.1 From April 2009 through April 2011, Niendick was
employed by City as police officer. During Niendick’s employment, the City classified him as a
salaried employee and did not pay him for the time he spent on call or standby or time he spent
working when he was called back to duty. Additionally, the City did not compensate Niendick
for time he spent answering work-related telephone calls and attending court hearings on his
On March 3, 2010, Niendick filed a complaint against the City with the United States
Department of Labor (“DOL”), charging that the City failed to pay him overtime.
Subsequently, the City changed Niendick’s work schedule, and in April 2011, the City
terminated his employment.
Local Rule 56.1 provides that a party moving for summary judgment must submit a
statement of the material facts as to which it contends there is no genuine issue to be tried, and
the non-moving party must file a responsive statement of the material facts as to which it
contends a genuine issue exists to be tried. “All material facts set forth in the statement filed by
the moving party . . . shall be deemed admitted unless controverted by the statement filed by the
non-moving party . . . . ” Local Rule 56.1(c).
On May 17, 2011, Niendick commenced this action, charging that the City failed to pay
him overtime and retaliated against him in violation of the FLSA. On June 6, 2011, the DOL
issued a letter to Albert Roork, the Salem Chief of Police, stating that DOL had determined, after
an investigation, that the City improperly classified Niendick as a salaried employee2 and failed
to pay him $3,520 in overtime wages as required under the FLSA. The City issued Niendick a
check for $3,520. Following the advice of his attorney, Niendick did not accept the City’s
The FLSA generally requires covered employers to compensate their employees at the
rate of one and one-half times their normal hourly rate for all hours worked in excess of a 40hour week.3 See U.S.C. § 207(a)(1). A plaintiff seeking overtime compensation under the
FLSA bears the burden to prove that an employer-employee relationship existed, which is not in
The FLSA requires covered employers to compensate non-exempt employees at
overtime rates for time worked in excess of statutorily-defined maximum hours. See 29 U.S.C. §
207(a). However, the statute exempts certain employees from overtime protections, including
“any employee employed in a bona fide executive, administrative, or professional capacity.” 29
U.S.C. § 213(a)(1). Under Department of Labor regulations, an “employee employed in a
bona fide administrative capacity” is someone: (1) who is compensated not less than $455 per
week; (2) whose primary duty is the performance of office or non-manual work directly related
to the management or general business operations of the employer; and (3) whose primary duty
includes the exercise of discretion and independent judgment with respect to matters of
significance. See 29 C.F.R. § 541.200.
The FLSA contains an exemption from the forty-hour workweek for public employers
who employ law enforcement officers for established work periods of up to twenty-eight days.
See 29 U.S.C. § 207(k). The City asserts that it is entitled to the § 207(k) exemption, and that
Niendick is not entitled to overtime unless he shows that he worked more than eighty-six hours
in a fourteen-day working period. The City fails to provide evidence that it adopted a fourteenday work period, but regardless of whether overtime should be accrued according § 207(k), the
Court finds that issues of fact preclude summary judgment in this case.
dispute in this case, and that he performed overtime work for which he was improperly
compensated. See Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687-88 (1946).4 “After
this burden is satisfied, ‘the employer bears the burden of proving entitlement to any exemptions
or exceptions to the Act’s compensation requirements.’” Specht v. City of Sioux Falls 639 F.3d
814, 819-820 (8th Cir. 2011)(quoting Benshoff v. City of Va. Beach, 180 F.3d 136, 140 (4th Cir.
1999)(citing 29 U.S.C. § 207(a)(1)). “‘When an employer contends it is exempt from the Act,
the employer has the burden of establishing the exemption clearly and affirmatively.’”
Id.(quoting Reich v. ConAgra, Inc., 987 F.2d 1357, 1360 (8th Cir.1993)).
Niendick moves for partial summary judgment, asking the Court to rule that he is owed
overtime for work performed when he was on call, after he was called back to duty, when he
answered work-related calls when he was on call, and when he attended court hearings on his
days off.5 The City does not dispute that Niendick went unpaid for the aforementioned
Generally, an employee bringing suit under the FLSA has the burden of proving that he
or she performed work for which he or she was not compensated. However, if the employer
failed to maintain adequate records, the burden shifts as follows:
[A]n employee has carried out his burden if he proves that he has in fact performed
work for which he was improperly compensated and if he produces sufficient
evidence to show the amount and extent of that work as a matter of just and
reasonable inference. The burden then shifts to the employer to come forward with
evidence of the precise amount of work performed or with evidence to negative the
reasonableness of the inference to be drawn by the employee’s evidence. If the
employer fails to produce such evidence, the court may then award damages to the
employee, even though the result be only approximate.
Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687-88 (1946)
In support of his motion, Niendick asserts that the Court should adopt the DOL’s
findings in connection with his administrative complaint. The DOL’s administrative judgment
is not controlling upon this Court, and the weight accorded to it depends on the “the
thoroughness evident in its consideration, the validity of its reasoning, its consistency with
categories of work, but it claims that genuine issues of material fact preclude summary
In support of his motion for partial summary judgment, Niendick presents his affidavit.
Docket entry #11, Ex. #2. Niendick testifies that, in addition to working thirty-six to thirtyseven hours a week, he spent approximately sixteen hours per week on call, and he was required
to return to work approximately six to eight times per month to work approximately one to one
and one-half hours. Niendick testifies that he received approximately fifteen calls per month,
which did not require that he return to work, but he provides no information regarding the
duration of those calls. Finally, Niendick testifies that the City required him to attend court on
his days off, which consumed approximately four hours per month.
In order for on-call time to constitute “work” subject to the FLSA’s overtime
compensation requirements, an employee’s on-call hours must be spent predominately for the
employer’s benefit. See Armour & Co. V. Wantock, 323 U.S. 126, 133, 65 S. Ct. 165 (1944).
“Time spent away from an employer's premises may constitute compensable hours of work if
conditions imposed by an employer restrict the employee from using the time for personal
pursuits.” Cross v. Ark. Forestry Comm'n, 938 F.2d 912, 916 (8th Cir.1991).
Niendick testifies that the City’s on-call policy “severely restricted” his life style. See
earlier and later pronouncements, and all those factors which give it power to persuade, if
lacking in power to control.” Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S. Ct. 161 (1944).
Here, Niendick submits various documents issued by the agency in connection with his
administrative complaint, see docket entry #11, Ex. C. The Court has reviewed those documents
does not find the material particularly helpful or persuasive regarding the specific matters
presently before the Court.
Niendick Aff., ¶ 9. According to Niendick, he “had to be physically and mentally capable of
performing the duties of a police officer during the on-call times” and “could not travel to
another county because of the necessity to quickly respond to emergencies.” Id. Niendick
reports that he could not visit his son, who lives in another county, and he could not mow his
yard, go to church, shop, or “perform any other activities that would prevent [him] from
responding to a cell phone and immediately arriving at the scene of an accident.” Id.
The City contends that Niendick’s on-call time was not so restrictive as to constitute
work. According to Chief Roork, Niendick was free to engage in personal activities during his
on-call time--including sleeping, shopping, and attending sporting events. See docket entry #19,
Ex. #2. The City presents the affidavit of Kristy Hardin, a dispatcher with the Fulton County
Sheriff’s Department, who states: “There were a couple of times when I called Doug [Niendick]
for work[, and] he had been in a tree stand hunting.” Docket entry #19, Ex. #7. Another
dispatcher, Linda Hutchison, testifies that several times, Niendick instructed her not to call him
unless it was an extreme emergency because he was going deer hunting. See docket entry #19,
Ex. #8. Additionally, the City presents the affidavit of Butch Blair, who worked as a Salem
police officer from February 1989 to March 2009. Blair testifies that he was not restricted to a
specific geographic location when he was on call, and he could go to church, sleep, mow his
yard, and pursue his hobbies during his on-call time. See docket entry #19, Ex. #5.
The Court finds that the City’s evidence creates genuine issues of fact as to Niendick’s
activities during his on-call time. Accordingly, the Court is unable to determine at this juncture
whether Niendick’s on-call hours constitute working hours under the FLSA.
The City claims that radio logs, which the City has failed to produce, show that the time
Niendick spent working after being called back to duty never resulted in overtime. Niendick
notes that the City acknowledges that he was not paid for he work performed when he was called
back to duty and that he is only asking the Court “to rule that [the City] is liable to Plaintiff for
the work performed when called back to duty, leaving the issue of the exact amount of . . .
damages for trial.” Docket entry #20, at 9. However, absent evidence that Niendick’s call-back
work resulted in overtime, the Court cannot find that the City is liable to pay him for work
performed when called back to duty. See Monahan v. County of Chesterfield, VA., 95 F.3d 1263,
1284 (4th Cir. 1996)(“Absent a minimum wage/maximum hour violation, we find no remedy
under the FLSA for pure gap [straight] time claims.”); Arnold v. Arkansas, 910 F. Supp. 1385,
1394 (E.D. Ark. 1995)(holding that claims for straight time pay for work periods when no
overtime was worked are not cognizable under the FLSA).
Answering Work-Related Calls
The City asserts that telephone records show that, contrary to Niendick’s testimony that
he received fifteen work-related calls per month, he never received more than ten calls a month,
and sometimes he received only two or three calls per month. Again, Niendick asks the Court to
grant summary judgment on the issue of liability, leaving the exact amount of damages for trial.
For reasons previously stated, questions of fact regarding Niendick’s work hours preclude
summary judgment on the issue of liability.
The City presents an affidavit by the Fulton County District Clerk, which calls into
question Niendick’s testimony that he worked approximately four hours a month attending court.
See docket entry #19, Ex. #13. The Court finds that questions for trial remain regarding the
number of hours Niendick spent attending court hearings.
Small Department Exception
The FLSA’s “small department exception” excludes from overtime protections “any
employee of a public agency who in any workweek is employed in . . . law enforcement
activities . . . , if the public agency employs during the workweek less than 5 employees in . . .
law enforcement activities . . . . ” 29 U.S.C.A. § 213(a)(20). The City claims that it is entitled to
the small department exception for any claims for overtime that accrued during the period from
March 26, 2009 through April 2, 2010. According to the City, it employed only four officers
during that period: Niendick, Chief Roork, Johnny Byler, and David Keck.
Niendick notes that in response to interrogatories, the City identified more than five
individuals who worked as reserve officers during the period March 26, 2009 though April 2,
2010. Although volunteers are exempted from employee status under the FLSA, see 29 U.S.C.
§ 29 U.S.C. § 203(e)(4)(A), DOL regulations provide a specific definition for the term
An individual who performs hours of service for a public agency for civic, charitable,
or humanitarian reasons, without promise, expectation or receipt of compensation for
services rendered, is considered to be a volunteer during such hours.
29 CFR § 553.101. The City provides no evidence that the reserve officers listed in its answers
to interrogatories meet the foregoing definition of volunteer, and Niendick presents his own
testimony that the City paid its reserve officers. The Court finds that questions of fact remain as
to whether the small department exception applies to Niendick’s claim for overtime for the
period from March 16, 2009 through April 2, 2010.6
The Court finds that issues of fact preclude summary judgment in Plaintiff’s favor on the
issue of liability. Accordingly, Plaintiff’s motion for partial summary judgment (docket entry
#10) is DENIED.
IT IS SO ORDERED THIS 16TH DAY OF MAY, 2012.
/s/Susan Webber Wright
UNITED STATES DISTRICT JUDGE
Niendick agrees that material issues exist as to whether the City employed more than
five law enforcement officers from March 26, 2009 through April 2, 2010 and whether certain
officers who served the City during that time period were volunteers or employees. See docket
entry #20, at 8.
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