Clark et al v. City of Fort Worth, Texas
Filing
36
MEMORANDUM OPINION AND ORDER: re: granting 24 Motion for Summary Judgment filed by City of Fort Worth, Texas and that all claims and causes of action brought by plaintiffs, Clark, Ellis, Norman, and Wallace, against defendant, City of Fort Worth, be, and are hereby, dismissed with prejudice. See Order for further specifics. (Ordered by Judge John McBryde on 7/29/2011) (egb)
U.S. DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
FILED
IN THE UNITED STATES DISTRICT CO RT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
RIC CLARK, ET AL.,
JUL 2 9 2011
CLERK, U.S. DISTRICT COURT
by
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Plaintiffs,
-----rD~e~p~ut~y~------
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§
VS.
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NO. 4:10-CV-S19-A
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CITY OF FORT WORTH,
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Defendant.
§
MEMORANDUM OPINION
and
ORDER
Now before the court is the motion for summary judgment
filed in the above action by defendant, City of Fort Worth.
Having now considered the motion, the response of plaintiffs, Ric
Clark ("Clark"), David Ellis ("Ellis"), Weldon Norman ("Norman"),
and Claire Wallace ("Wallace"), defendant's reply, the entire
summary judgment record, and applicable legal authorities, the
court concludes that the motion should be granted. 1
1.
Plaintiffs' Claims
Plaintiffs initiated this removed action by the filing on
June 28, 2010, of their original petition in the District Court
of Tarrant County, Texas, 141st Judicial District; plaintiffs
IDefendant also filed its objections and motion to strike portions of plaintiffs' summary judgment
evidence. Rather than rule on the motion, the court will give the disputed evidence whatever weight and
consideration it deserves.
filed their amended petition on July 9, 2010.
Plaintiffs allege
that while working as police officers for defendant, they also
worked as security officers at two facilities owned by defendant,
the Fort Worth Convention Center ("FWCC") and the Will Rogers
Memorial Coliseum ("WRMC")
( collectively, "Facilities"), but that
defendant failed to pay them overtime compensation when their
combined off-duty hours and regular-duty hours exceeded forty
hours per week, in violation of the Fair Labor Standards Act
("FLSA"), 29 U.S.C.
§
207.
II.
The Motion for Summary Judgment
Defendant argues for summary judgment on the ground that the
"special detail" exemption found in 29 U.S.C.
§
207(p) allows it
to exclude plaintiffs' off-duty hours from the total hours worked
for overtime purposes.
III.
Undisputed Facts
The following facts are undisputed in the summary judgment
record:
Defendant is a home-rule municipal corporation formed under
state law.
Plaintiffs are all retired Fort Worth police
officers.
2
Defendant affords its police officers the opportunity to
earn extra income by performing assignments during their off-duty
hours.
Section 407.00 of the police department's General Orders,
titled "Off-Duty Police Employment," explains defendant's general
policy regarding off-duty assignments and establishes the
procedures officers must follow to participate in such
assignments.
Any officer who wishes to perform off-duty work
must follow the established procedures whether the anticipated
off-duty employment is on public or private property.
An officer interested in off-duty employment must complete
the required application and submit it to his or her supervisors.
The application then proceeds through mUlti-step reviews up the
officer's chain of command.
If the application is ultimately
approved, the officer is added to a list of officers approved for
off-duty assignments maintained by the police department.
Once
approved, officers may only work off-duty assignments at approved
locations.
Officers who are on limited-duty status are
prohibited from working off-duty assignments.
Each of the plaintiffs worked off-duty assignments while
employed by defendant as police officers; Clark and Ellis also
scheduled officers for off-duty assignments.
Although defendant
approves the applications of officers who wish to be included on
3
the off-duty assignment list, once an officer's name is on the
list, he or she decides whether to accept or reject a particular
off-duty assignment.
Officers can and do reject off-duty
assignments without fear of reprisal.
No officer has been
disciplined for rejecting an off-duty assignment, and neither
Clark nor Ellis ever recommended disciplinary action against an
officer for rejecting an off-duty assignment.
Defendant leases or rents the Facilities to public and
private third parties ("Licensees") for use in a variety of
events, including such examples as a charity ball, a bridal show,
dog shows, a miniature horse show, concerts, corporate
gatherings, and similar events.
The Licensees at issue in this case are entities and
individuals who are legally separate from, and in no way
affiliated with, defendant.
2
The Licensees may sue and be sued
on their own behalf; none participate in defendant's payroll,
personnel, retirement, or budget systems or processes.
To the
extent any of the Licensees have retirement systems or budgets,
2Plaintiffs in their response also allege that defendant uses off-duty officers at its recreation
centers, such as softball fields, and that off-duty officers at those facilities receive overtime pay. This
assertion is based on a statement in Clark's affidavit. Clark testified, however, that he had not worked at
a recreation center during the time period relevant to this action and had no personal knowledge of how
off-duty hours worked at such a location were treated for overtime purposes. Rather, Clark's knowledge
of those subjects came from what others told him. Statements in an affidavit not based on personal
knowledge are not competent summary judgment evidence. See Lodge Hall Music, Inc. v. Waco
Wrangler Club, Inc., 831 F.2d 77, 80-81 (5th Cir. 1987).
4
they are separate and distinct from defendant's.
Prior to renting or leasing the Facilities, a Licensee
enters into a written contract with defendant.
The contract
requires the Licensee to comply with all "federal, state, and
local laws, statutes including all ordinances, charter
provisions, rules and regulations of the City of Fort Worth;
including all rules, regulations and/or requirements of the City
of Fort Worth Public Events, Police and Fire Departments."
to Def. 's Br. in Supp. of Mot. for Summ. J. at 207, 215.
App.
Of
particular pertinence here, the contracts and the Guidelines and
Regulations for the Facilities require the Licensee, at its "sole
cost and expense," to provide security personnel comprised of
"off-duty Fort Worth Police Officers."
271.
Id. at 204, 214, 230,
A Licensee is additionally required to provide security in
the form of off-duty police officers for the Licensee's movein/move-out of the Facilities, or any time alcohol is served.
When contracting for use of the Facilities, Licensees
generally work directly with event coordinators employed by
defendant.
Licensees do not contract directly with the police
officers.
Defendant determines the minimum number of off-duty
officers required for an event; however, the Licensee is then
afforded an opportunity to provide input as to its specific
5
requirements, such as any additional officers needed above the
minimum, specific locations at the event where the officers are
to be stationed, and the officers' start and end times.
A form
summarizing the Licensee's requirements is prepared and submitted
to the Licensee to approve or make such changes as the Licensee
desires.
When all requested changes are made, or if no changes
are made, the Licensee is required to sign a form indicating its
final approval of the number of officers to be used for the
event, the officers' work schedule, the amount of the officers'
pay, and the time frame within which payment is to be made.
Licensees are responsible for paying the off-duty officers
directly.
On the majority of occasions the Licensees issue
checks, drawn on the Licensees' bank accounts, directly to the
police officers who performed the off-duty assignment.
On
occasion, a Licensee has issued a single payment to the FWCC,
which then paid the individual officers.
Licensees require the
off-duty officers to provide their tax identification numbers and
execute an IRS Form W-9 prior to issuing payment.
Defendant does
not maintain a record of the hours officers work in off-duty
assignments, nor does it report those wages to any taxing
authority such as the Internal Revenue Service.
6
IV.
Applicable Summary Judgment Principles
Rule 56(a) of the Federal Rules of Civil Procedure provides
that the court shall grant summary judgment on a claim or defense
if there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.
Fed. R. Civ.
P. 56(a) i Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247
(1986).
The movant bears the initial burden of pointing out to
the court that there is no genuine dispute as to any material
fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 325 (1986).
The movant can discharge this burden by pointing out the absence
of evidence supporting one or more essential elements of the
nonmoving party's claim, "since a complete failure of proof
concerning an essential element of the nonmoving party's case
necessarily renders all other facts immaterial."
Id. at 323.
Once the movant has carried its burden under Rule 56(a), the
nonmoving party must identify evidence in the record that creates
a genuine dispute as to each of the challenged elements of its
case.
Id. at 324.
See also Fed. R. Civ. P. 56(c)
asserting that a fact
the assertion by
the record .
("A party
. is genuinely disputed must support
citing to particular parts of materials in
.").
If the evidence identified could not lead
7
a rational trier of fact to find in favor of the nonmoving party
as to each essential element of the nonmoving party's case, there
is no genuine dispute for trial and summary judgment is
appropriate.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587, 597 (1986).
v.
Analysis
A.
Legal Framework
The FLSA requires employers to compensate employees for all
hours worked over forty each week at the rate of one and one-half
times their regular rate.
29 U.S.C.
§
207(a) (1).
This right is
not unlimited, however, as the FLSA also specifically exempts
certain employers and/or employees from its overtime
requirements.
Such exemptions are to be narrowly construed.
Mitchell v. Kentucky Fin. Co., 359 U.S. 290, 295 (1959).
employer bears the burden to establish the exemption.
The
Blackmon
v. Brookshire Grocery Co., 835 F.2d 1135, 1137 (5th Cir. 1988)
(internal citation omitted) .
The exemption at issue here, referred to as "special
detail," provides:
(p) Special detail work for .
law enforcement
employees; occasional or sporadic employment;
substitution
(1) If an individual who is employed by a State,
8
political subdivision of a State, or an interstate
governmental agency in.
. law enforcement activities
(including activities of security personnel in
correctional institutions) and who, solely at such
individual's option, agrees to be employed on a special
detail by a separate or independent employer in .
law enforcement, or related activities, the hours such
individual was employed by such separate and
independent employer shall be excluded by the public
agency employing such individual in the calculation of
the hours for which the employee is entitled to
overtime compensation under this section if the public
agency-(A) requires that its employees engaged in . . . law
enforcement, or security activities be hired by a
separate and independent employer to perform the
special detail,
(B) facilitates the employment of such employees by a
separate and independent employer, or
(C) otherwise affects the condition of employment of
such employees by a separate and independent
employer.
29 U.S.C.
§
207 (p) (1) .
The Department of Labor ("DOL") regulations implementing
§
207(p) (1) explain that the special detail exemption applies to
off-duty employment by law enforcement personnel when "(1)
[t]he
special detail work is performed solely at the employee's option,
and (2) the two employers are in fact separate and independent."
29 C.F.R.
§
553.227(b).
The regulations further provide that:
(d) The primary employer may facilitate the employment
or affect the conditions of employment of such
employees.
For example, a police department may
maintain a roster of officers who wish to perform such
9
work.
The department may also select the officers for
special details from a list of those wishing to
participate, negotiate their pay, and retain a fee for
administrative expenses.
The department may require
that the separate and independent employer pay the fee
for such services directly to the department, and
establish procedures for the officers to receive their
pay for the special details through the agency's
payroll system.
Finally, the department may require
that the officers observe their normal standards of
conduct during such details and take disciplinary
action against those who fail to do so.
Id. at
§
553.227(d).
The regulations also allow the primary
employer to prohibit or restrict off-duty employment.
(h).
Against this framework,
Id. at
the court considers whether
defendant has established applicability of the special detail
exemption.
B.
Off-Duty Work is Performed Solely at Employee's Option
Defendant contends it has established the first prong
because no officer is required to perform off-duty assignments.
Rather, each individual officer voluntarily applies to be
considered for off-duty assignments, and, once approved and
included on the off-duty assignment roster, only the officer
decides whether to accept or reject a particular off-duty
assignment.
Just as no officer is required to apply for
inclusion on the off-duty roster, no officer is required to
accept a particular assignment, and the undisputed evidence
confirms that no officer was recommended for, or received,
10
disciplinary action for refusing an off-duty assignment.
Plaintiffs concede that once on the approved list each
officer makes the decision whether to accept or reject a
proffered off-duty assignment.
Plaintiffs contend, however, that
defendant's control of the approval process precludes a finding
that off-duty work occurs "solely" at the officer's option.
Plaintiffs focus heavily on the language "solely at such
individual's option" found in
§
207(p) (1), and cite the following
as "barriers" to this requirement: officers must submit an
application to be included on the off-duty roster; the
application proceeds through a multi-step evaluation and approval
process before the officer is approved; approval is subject to
withdrawal; officers on limited-duty status are prohibited from
accepting off-duty assignments; in a few instances supervisors
select the off-duty officers; and officers may only work at
approved locations.
Plaintiffs additionally claim that requiring
all Licensees to hire off-duty police officers renders such
assignments mandatory rather than voluntary.
All of the alleged "barriers" fail when considered in light
of the clear language of the DOL's regulations on special detail,
cited supra.
The only reasonable conclusion that can be reached
by the "facilitate" or "affect the conditions of employment"
11
language in
§
553.227(d) is that the "special detail" exemption
was never intended to provide officers free and unfettered
discretion with respect to off-duty employment, as plaintiffs
seem to suggest.
Rather, it is apparent that the regulations
intended to allow the primary employer some authority and control
over the off-duty assignments of its police officers.
All of the
"barriers" alleged by plaintiffs appear to be within the bounds
of "facilitat[ing]" or "affect[ing] the conditions" of off-duty
employment as contemplated by the regulations.
See Specht v.
City of Sioux Falls, 639 F.3d 814, 820-21 (8th Cir. 2011)
(finding off-duty employment by firefighters voluntary under
§
207(p) even though defendant's policy allowed it to require the
off-duty work if necessary, and even though firefighters who
refused were moved to the bottom of the list).
Plaintiffs have
directed the court to no authority holding otherwise.
Nor does requiring Licensees to use off-duty officers as
security at the Facilities defeat the special detail exemption.
Section 553.227(e) expressly applies the exemption to
circumstances where state or local laws or ordinances mandate
that police officers provide security at events.
That defendant
requires its Licensees to hire off-duty officers is not
tantamount to a requirement that every officer must work those
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assignments.
Defendant has established that off-duty work is
performed "solely at the employee's option."
c.
Off-Duty Work is for Separate and Independent Employers
Defendant contends, and plaintiffs concede, that defendant
and the Licensees are separate and independent.
Plaintiffs
instead maintain that defendant, through the Facilities, is both
the primary and off-duty employer.
The court finds this argument
unavailing.
Although neither the statute nor regulations defines
"separate and independent," courts frequently consider six
factors derived from a DOL opinion letter in making such a
determination. 3
Defendant successfully applied these factors to
show that the Licensees are separate and independent from
defendant.
Plaintiffs, however, fail to adduce summary judgment
evidence or even explain how application of these factors raises
a fact issue regarding the identity of the off-duty employer.
Plaintiffs rely on Baltimore County FOP Lodge 4 v. Baltimore
County, 565 F. Supp.2d 672, 678 (D. Md. 2008), Murphy v. Town of
3The factors are whether the employers: (1) maintain separate payrolls, (2) deal with other
employers at arms' length concerning the employment of any individual, (3) have separate budgets and
(4) separate retirement systems, (5) are independent entities under state law, and (6) can sue and be sued
in their own names. See Baltimore Cnty. FOP Lodge 4 v. Baltimore Cnty., 565 F. Supp.2d 672, 678 (D.
Md. 2008) (citing Dep't of Labor Op. Ltr., WH-535, 1985 WL 1087362 (Oct. 10, 1985»; Jackson v. City
of San Antonio, No. SA-03-CA-0049-RF, 2006 WL 2548545 (W.D. Tex. Aug. 31, 2006).
13
Natick, 516 F. Supp.2d 153 (D. Mass. 2007), and Cox v. Town of
Poughkeepsie, N.Y., 209 F. Supp.2d 319 (S.D.N.Y. 2002), to
support their contention that defendant is the real off-duty
employer.
Such reliance is misplaced.
In each case cited the
purported "separate and independent" employer was also a
governmental entity affiliated with the primary governmental
employer.
For example, in Baltimore County, police officers
performed off-duty work for the county Board of Education.
F. Supp.2d at 674.
565
In Murphy, the off-duty employers were the
town recreation department, the town Department of Public Works,
and the town's high school.
516 F. Supp.2d at 157.
In Cox, the
officers performed off-duty work as security officers for the
Town Court. 209 F. Supp.2d at 321.
None of these cases involved
the facts and circumstances present in the instant action.
Plaintiffs again cite a list of facts they contend
demonstrates that defendant is the true off-duty employer, and
maintain that although the regulations "naturally envision the
police department playing a role in facilitating off-duty
employment," here, it is defendant's "Facility management via
Event Coordinators and Public Events directors--not the police
department--" that controls the off-duty assignment process.
14
Br.
in Supp. of PIs.' Resp. to Def.'s Mot. for Summ. J. at 13.
The regulations again foreclose plaintiffs' argument, as
they expressly contemplate that the "primary employer"--not
limited to a "police department"--may facilitate off-duty
assignments or affect the conditions of off-duty employment,
including selecting officers to participate, negotiating their
pay, and requiring certain standards of conduct.
553.227(d).
29 C.F.R.
§
All of the acts which plaintiffs contend prove that
defendant is the off-duty employer are reasonably within the
bounds of
§
553.227(d) and do not raise a fact issue that
defendant is the off-duty employer.
See Jackson v. City of San
Antonio, 2006 WL 2548545 (W.D. Tex. Aug. 31, 2006).
Plaintiffs also point to defendant's practice of providing
workers' compensation coverage for officers working off-duty
assignments as proof that defendant is the off-duty employer.
This fact is immaterial, as the DOL has approved such a practice
under similar circumstances. 4
Dep't of Labor Op. Ltr., FLSA2006-
13, 2006 WL 1488847 (Apr. 28, 2006).
It also appears that plaintiffs are cherry-picking select
4DOL opinion letters, while not controlling or entitled to deference, are "entitled to respect" to
the extent they are persuasive or offer guidance. Christensen v. Harris Cnty., 529 U.S. 576, 587 (2000);
Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).
15
lines and phrases from the General Orders and the Licensees'
contracts to bolster their argument that defendant controls the
off-duty officers' employment.
When considered in light of all
the evidence, however, there simply is no question that the
Licensees control the off-duty officers' employment, and that the
Licensees, rather than defendant, are the "separate and
independent" off-duty employers.
The court concludes that defendant has carried its burden to
establish the "special detail" exemption.
VI.
Order
Therefore,
The court ORDERS that defendant's motion for summary
judgment be, and is hereby, granted, and that all claims and
causes of action brought by plaintiffs, Clark, Ellis, Norman, and
Wallace, against defendant, City of Fort Worth, be, and are
hereby, dismissed with prejudice.
SIGNED July 29, 2011.
States
•
16
t Judge ...
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