Terry et al v. Yell County Arkansas et al

Filing 23

OPINION AND ORDER granting in part and denying in part 14 Motion for Summary Judgment. Signed by Judge Susan Webber Wright on 8/14/2014. (ks)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
ROBERT TERRY and
RICK SHADDEN,
Plaintiffs,
vs.

YELL COUNTY, ARKANSAS,
Defendant.

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No. 4:13-cv-00408-SWW

OPINION AND ORDER
Plaintiffs Robert Terry and Rick Shadden bring this action against their former
employer, defendant Yell County, Arkansas, claiming defendant willfully did not pay
them their overtime wages under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201
et seq. The matter is before the Court on motion of plaintiffs for summary judgment
[doc.#14]. Defendant has responded in opposition to plaintiffs’ motion and plaintiffs
have replied to defendant’s response. For the reasons that follow, the Court grants in part
and denies in part plaintiffs’ motion for summary judgment.
I.
Plaintiffs are former sheriff’s deputies for the Yell County, Arkansas Sheriff’s
Department. Both plaintiffs worked for defendant at locations throughout Yell County
serving defendant as law enforcement officers in a K-9 (canine) unit position. Rick
Shadden was an employee of defendant in that position from approximately July 1, 2009,
until his employment ended on May 1, 2011. Robert Terry was an employee of defendant

in that position from August 12, 2011, until his employment ended on May 9, 2013.
Plaintiffs state by way of declarations that they were paid by defendant by the hour
and that the vast majority of their time working for defendant was spent on patrol with the
canine units, cleaning and training the dogs, and cleaning the vehicles. They state they
were made to work far in excess of 40 hours per week, sometimes even as many as 80 or
more hours in a week, but that they were generally paid for no more than 40 hours each
week.
Plaintiffs state the defendant unsuccessfully attempted to credit them with “comp”
time for some of the time that was overtime and time spent with the canine units. They
state defendant did not keep accurate records of the time they worked overtime and that
defendant had knowledge of the facts and circumstances and imposed policies that caused
them to work undocumented hours. Plaintiffs state they were explicitly directed to underreport their hours worked for defendant so that defendant would pay less in overtime.
Plaintiffs state that in the times they went over the number of hours that had been
budgeted by defendant, they were questioned about it and essentially told, “You have X
amount of hours you can be paid, and this is what we’ve got to do.” They state their
supervisor responded to their complaints about the hours they had to work without pay by
telling them that defendant had a policy that they did not want much overtime on
paperwork and that plaintiffs had to “do the work that you have to do in order to get the
job done.” Plaintiffs state that a supervisor named “Kevin” gave them a similar response,
stating, “we don’t have overtime ... overtime just does not exist.” They state that
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supervisors visited the locations where they worked and knew of the hours they were
working.
In contrast, Sheriff Bill Gilkey, who defendant states supervised both of the
plaintiffs for their entire tenure for the Yell County Sheriff’s Department, states in an
affidavit that plaintiffs’ accusations concerning their claims of being denied overtime pay
are untrue and unfounded and that it is his belief based upon review of the records and
having been the Sheriff during the entire time of plaintiffs’ employment that they are not
owed any overtime and that they were properly paid for all time worked. He states that
each of his employees has a timecard that is submitted on two-week intervals, which is
how deputies are paid, and that during the course of discovery in this case, he supplied all
of his department’s timecards as requested by the plaintiffs. Sheriff Gilkey states that
each timecard reflects the total hours for each pay period, that there is a specific blank
space for overtime to be inserted, and that each timecard is initialed as approved by
Sheriff Gilkey’s administrative staff. He states he personally asked both plaintiffs on a
monthly basis if their timecards were correct and if there were any extra hours associated
with the care and operation of the canine unit for which they needed to be compensated
and that the answer he received from the plaintiffs was “no.”
Sheriff Gilkey states that he cannot attest to the statements of plaintiffs to the
effect that the vast majority of their time was spent on patrol with the canine unit,
cleaning and training the dogs, and cleaning the vehicles. He states, however, that while
he agrees plaintiffs were assigned to the canine unit, he does not believe they spent any
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time other than what they listed on their timecard in caring for their vehicles or animals.
Defendant further states in its response to plaintiffs’ interrogatories that
[d]ue to the fact that shifts at the Yell County Sheriff's Office are not
overridden with calls, there is a sufficient amount of time during each
regular shift to perform training for the dog. In addition, Plaintiffs were
instructed to leave their shift one-hour early each shift in order to perform
normal dog care. An hour was sufficient time to perform normal dog care.
In the event that there were overages, Plaintiffs were to properly document
their timecard in order to be paid for this time.
II.
Plaintiffs move for summary judgment on grounds that (1) plaintiffs are not
exempt employees under the FLSA; (2) plaintiffs are owed overtime wages as provided
for under the FLSA; (3) defendant willfully violated its statutory obligations for a period
in excess of 3 years; and (4) plaintiffs are entitled to back-pay compensation and
liquidated damages equal to their unpaid compensation, and attorney’s fees and costs.
Plaintiffs argue there are no genuine issues of material fact with respect to any of these
issues and that they are entitled to summary judgment as a matter of law.1
A.
Summary judgment is appropriate “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to a judgment as a matter of
law.” Fed.R.Civ.P. 56(a). To support an assertion that a fact cannot be or is genuinely

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Given that plaintiffs’ motion for summary judgment is based solely on their declarations
and defendant has submitted a contrary affidavit (as well as time records and responses to
discovery), the Court denies plaintiffs’ request to deem admitted their statement of undisputed
facts.
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disputed, a party must cite “to particular parts of materials in the record,” or show “that
the materials cited do not establish the absence or presence of a genuine dispute,” or “that
an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P.
56(c)(1)(A)-(B). “The court need consider only the cited materials, but it may consider
other materials in the record.” Fed.R.Civ.P. 56(c)(3). The inferences to be drawn from
the underlying facts must be viewed in the light most favorable to the party opposing the
motion. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986) (citations
omitted). Credibility determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those of a judge. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000) (citation and quotation marks
omitted). However, “[w]here the record taken as a whole could not lead a rational trier of
fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” Matsushita,
475 U.S. at 587 (citation omitted). “Only disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude the entry of summary
judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “Factual disputes
that are irrelevant or unnecessary will not be counted.” Id.
B.
The FLSA generally requires employers to pay their employees at least one and
one-half times their regular wage rate for hours worked in excess of 40 hours in a given
week. 29 U.S.C. § 207(a)(1). “As a general matter, an employee’s workday begins with
the first ‘principal activity’ of his employment, and ends with the last such activity.”
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Adair v. ConAgra Foods, Inc., 728 F.3d 849, 850-51 (8th Cir. 2013) (citing 29 C.F.R. §
790.6(b)). However, “‘[a]ctivities performed either before or after the regular work shift
... are compensable ... if those activities are an integral and indispensable part of the
principal activities for which covered workmen are employed and are not specifically
excluded by [29 U.S.C. § 254(a)(1)].’” Lopez v. Tyson Foods, Inc., 690 F.3d 869, 874
(8th Cir. 2012) (quoting Steiner v. Mitchell, 350 U.S. 247, 256 (1956) (emphasis added)).2
In addition, “‘any activity that is ‘integral and indispensable’ to a ‘principal activity’ is
itself a ‘principal activity’ under [29 U.S.C. § 254(a)].’” Id. (quoting IBP, Inc. v. Alvarez,
546 U.S. 21, 37 (2005)).
An employer who “‘knows or has reason to believe’” that the employee is working
overtime is obligated to compensate the employee. Reich v. Stewart, 121 F.3d 400, 407
(8th Cir. 1997) (quoting Mumbower v. Callicott, 526 F.2d 1183, 1188 (8th Cir. 1975)). In
this respect,
[a]n employee must be compensated for duties before and after scheduled
hours ... if the employer knows or has reason to believe the employee is
continuing to work and the duties are an integral and indispensable part of
the employee's principal work activity. Thus, in order to prevail on their
overtime claims, Plaintiffs [a]re required to present evidence that they
worked above their scheduled hours without compensation and that the
[employer] knew or should have known that they were working overtime.
Hertz v. Woodbury County, Iowa, 566 F.3d 775, 781 (8th Cir. 2009) (citations and

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Excluded from the workday is time spent “walking, riding, or traveling to and from the
actual place of performance of the principal activity or activities which [an] employee is
employed to perform,” and time spent performing “activities which are preliminary to or
postliminary to said principal activity or activities.” Id. (quoting 29 U.S.C. § 254(a)).
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quotation marks omitted). “‘[A]ny employer who violates the [... overtime wage]
provisions of [the FLSA] shall be liable to the employee or employees affected in the
amount of their ... unpaid overtime compensation, as the case may be, and in an additional
equal amount as liquidated damages.’” Lucas v. Jerusalem Cafe, LLC, 721 F.3d 927, 939
(8th Cir. 2013) (citing 29 U.S.C. § 216(b) (emphasis added)).
1.
The Court first addresses plaintiffs’ claim that they are not subject to any FLSA
exemption. Section 213(a)(1) provides that the provisions of § 207 shall not apply with
respect to “any employee employed in a bona fide executive, administrative, or
professional capacity....” Defendant admits that as sheriff’s deputies for defendant,
plaintiffs’ “actual day-to-day job duties and responsibilities were not exempt under the
FLSA with respect to payment for time worked in excess of 40 hours each week.”
Accordingly, plaintiffs are not subject to any FLSA exemption. See Fast v. Applebee’s,
Intern., Inc., 638 F.3d 872, 882 (8th Cir. 2011) (an exemption under the FLSA is an
affirmative defense, and the employer bears the burden of proof to establish that an
exemption applies).

2.
The Court now turns to plaintiffs’ claim for unpaid overtime wages. Plaintiff
Robert Terry claims that when working an average of 30 hours to which he was not
compensated per pay period, he would be owed $12,285.00. He claims that per
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defendant’s time sheets and his recollection of his hours worked, the complete and
accurate accounting of all the compensation to which he is entitled, when liquidated, is
$24,570.00. Plaintiff Rick Shadden claims that when working an average of 30 hours to
which he was not compensated per pay period, he would be owed $8,775.00. He claims
that per defendant’s time sheets and his recollections of his hours worked, the complete
and accurate accounting of all the compensation to which he is owed, when liquidated, is
$17,550.00.
An employee who brings suit for unpaid overtime wages under the FLSA “‘has the
burden of proving that he performed work for which he was not properly compensated.’”
Lopez, 690 F.3d at 874 (quoting Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680,
686–87, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946), superceded by statute on other grounds,
Portal–to–Portal Act of 1947, Pub.L. No. 80–49, 61 Stat. 84). To prevail on their FLSA
claim for uncompensated overtime, plaintiffs must prove that the activity for which
compensation is sought constitutes “work” under the FLSA and, as previously noted, that
defendant had actual or constructive knowledge of their overtime work. Woodman v. City
of Hazen, Arkansas, No. 4:08CV00364 JLH, 2009 WL 2579266, *2 (E.D. Ark. Aug. 19,
2009). The FLSA does not define when an employee is working for his or her employer
but it has generally been held that “an employee’s time is ‘work’ for the purposes of the
FLSA if it is spent ‘predominantly for the benefit of the employer.’” Reimer v. Champion
Healthcare Corp., 258 F.3d 720, 725 (8th Cir. 2001) (quoting Armour & Co. v. Wantock,
323 U.S. 126, 133 (1944)). “Whether time is spent predominantly for the employer’s
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benefit or for the employee’s is a question dependent upon all of the circumstances of the
case.” Armour, 323 U.S. at 133. See also Skidmore v. Swift & Co., 323 U.S. 134, 136-38
(1944)).
Defendant does not dispute that plaintiffs’ time spent on patrol with the canine
units, cleaning and training the dogs, and cleaning the vehicles was compensable work
time under the FLSA. But even if it had, the Court would reject such an argument as a
number of courts, including courts within the Eastern District of Arkansas, have found
that the time a police officer spends caring for or training his or her assigned canine
constitutes compensable work time under the FLSA. See Woodman, 2009 WL 2579266,
*2 (collecting cases); see also Treece v. City of Little Rock, Ark., 923 F.Supp. 1122, 1125
(E.D. Ark. 1996) (canine police officers performed activities that were compensable
under FLSA when they fed, watered, exercised, groomed, cleaned, cleaned living areas
of, trained, arranged veterinary care for, and provided home medical care for, assigned
police dogs during off-the-clock time).
As plaintiffs’ work concerning their canine responsibilities is compensable work
time under the FLSA, the key issues to be resolved are whether plaintiffs worked
uncompensated overtime and whether defendant or its agents had actual or constructive
knowledge that plaintiffs were working overtime. Even if plaintiffs did not initially seek
overtime pay, “‘[a]cceptance by an employee of payments of regular and overtime wages
will not stop him from suing to recover the amount due him when he proves he actually
worked longer.’” Woodman, 2009 WL 2579266, *3 (quoting Robertson v. Alaska Juneau
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Gold Mining Co., 157 F.2d 876, 879 (9th Cir. 1946)). “Failing to include off-duty time
spent caring for and training an assigned police canine does not preclude the employee
from recovering compensation for such work.” Id. (citing Baker v. Stone County, Mo., 41
F.Supp.2d 965, 1000-01 (W.D. Mo. 1999)). “Ultimately, a court need only inquire
“‘whether the circumstances were such that the employer either had knowledge of
overtime hours being worked or else had the opportunity through reasonable diligence to
acquire knowledge.’” Id. (quoting Kautsch v. Premier Communications, No. 06-CV04035-NKL, 2007 WL 3376711, *2 (W.D. MO. Nov. 7, 2007)).
Here, as noted by defendant, there is a clear factual dispute as between the
declarations of the plaintiffs and the affidavit of Sheriff Gilkey concerning how the
defendant handled overtime hours. Having considered also defendant’s time records (the
accuracy of which plaintiffs dispute) and discovery responses, the Court finds that the
questions of whether plaintiffs were compensated for all their overtime work and, if not,
whether the defendant had actual or constructive knowledge that plaintiffs were working
overtime are factual questions that the Court is unable to resolve on this record. See
Stewart, 121 F.3d at 404 (the amount of time an employee works and the duties he or she
performs are factual questions).3
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The Eighth Circuit has applied the Mt. Clemens burden shifting framework in FLSA
cases concerning overtime wages. Fast, 638 F.3d at 882 (citing Hertz, 566 F.3d 775). Under
this framework, it is the employer’s duty to keep employment records, and as long as the
employer has kept proper and accurate records, the employee may easily discharge his burden by
securing the production of those records. Id. at 881-82. But where the employer's records are
inaccurate or inadequate and the employee cannot offer convincing substitutes, “‘a more difficult
problem arises.’” Id. at 882 (quoting Mt. Clemens, 328 U.S. at 687). Penalizing the employee in
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3.
Plaintiffs also argue that defendant’s alleged violations of the FLSA were willful
and, thus, subject to a three year rather than two year statute of limitations. See 29 U.S.C.
§ 255(a) (setting forth a three-year limitations period for willful FLSA violations and a
two-year limitations period for all other violations). An FLSA violation is willful if “the
employer either knew or showed reckless disregard for the matter of whether its conduct
was prohibited by statute.” McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988).
This standard requires more than negligence or a good-faith but incorrect assumption that
a pay plan complied with the FLSA in all respects. Id. at 135.
Because the Court is unable to resolve on this record the questions of whether
plaintiffs were compensated for all their overtime work and, if not, whether the defendant
had actual or constructive knowledge that plaintiffs were working overtime, the question
of willfulness likewise is a factual question that the Court is unable to resolve on this
record.

III.

that situation would only encourage employers to fail to keep proper records, so the Court in Mt.
Clemens held that “‘an 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.’” Id. (quoting Mt. Clemens, 328 U.S. at 687). “‘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 from the employee's
evidence.’” Id. (quoting Mt. Clemens, 328 U.S. at 687-88).
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For the foregoing reasons, the Court grants in part and denies in part plaintiffs’
motion for summary judgment [doc.#14].
IT IS SO ORDERED this 14th day of August 2014.
/s/Susan Webber Wright
UNITED STATES DISTRICT JUDGE

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