Ford v. Houston Independent School District
Filing
29
OPINION AND ORDER granting 12 Motion for Summary Judgment.(Signed by Judge Melinda Harmon) Parties notified.(rhawkins, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
HAROLD FORD AND JOFFERY REID,
Plaintiffs,
VS.
HOUSTON INDEPENDENT SCHOOL
DISTRICT,
Defendant.
§
§
§
§
§
§
§
§
§
§
Civ. A. H-13-2598
OPINION AND ORDER
Pending before the Court in the above referenced cause,
seeking overtime compensation for “extra” work that Plaintiffs
Harold Ford (“Ford”) and Joffery Reid, Jr. (“Reid”) performed,
allegedly
willfully
denied
in
violation
of
the
Fair
Labor
Standards Act of 1938 (“FLSA”), 29 U.S.C. § 201(a)(1), et seq., is
Defendant the Houston Independent School District’s (“HISD’s”)
motion
for
summary
judgment
(instrument
#12)
based
on
the
“occasional or sporadic” exemption under 29 U.S.C. § 207(p)(2)
and its implementing regulation, 29 C.F.R. § 553.30.
While
there
is
almost
no
case
law,
published
or
unpublished, on the occasional or sporadic exemption to overtime
compensation under the FLSA, there are two on-point cases related
to the instant suit pending against HISD in the Houston Division
of the Southern District of Texas:
Blair v. HISD, H-13-2628, on
the docket of the Honorable Gray Miller; and Franklin v. HISD, H13-3207, pending before the Honorable Vanessa Gilmore.
Both
courts have issued orders denying summary judgment to HISD, but
Judge Miller is currently considering a motion to reconsider,
-1-
while Judge Gilmore’s case is set for trial.
The relevant
documents of each have been made part of the record of this case,
as
will
be discussed.
See
Plaintiffs’
post-submission
notification of relevant authority (#21); HISD’s Response (#24);
Plaintiff’s
post-submission
reconsideration
(#26);
notification
and
of
Plaintiffs’
opposition
to
post-submission
notification of relevant authority (#28), of which this Court
takes judicial notice.1
The same attorney, Thomas H. Padgett,
Jr., represents the plaintiffs in all three actions, while Paul A.
Lamp represents HISD in all of them.
While the facts differ
slightly, the same issue is raised in all three suits and is one
of first impression.
1
In Taylor Charter Medical Corp., 162 F.3d 827, 829-30
(5 Cir. 1998)(citations omitted), the Fifth Circuit joined the
Second and Eleventh Circuit Courts of Appeals in ruling that while
th
a court may take judicial notice of a
“document filed in another court . . . to
establish the fact of such litigation and
related filings,” a court cannot take
judicial notice of the factual findings of
another court. This is so because (1) such
findings do not constitute facts “not subject
to reasonable dispute” within the meaning of
Rule 201; and (2) were [it permissible for a
court to take judicial notice of a fact
merely because it had been found to be true
in some other action, the doctrine of
collateral estoppel would be superfluous.”
A court may take judicial notice of an order of another court only
for the limited purpose of recognizing the judicial act that the
order represents. Id. at 831; Colonial Leasing Co., 762 F.2d at
759. See also Kay v. Lone Star Fund V (U.S.), L.P., 453 B.R. 645,
664-65 (N.D. Tex. 2011)(“When a court takes judicial notice of
public documents or documents from another court, it may only take
notice of the undisputed facts therein, which do not include the
‘facts’ asserted in various affidavits and depositions.”).
-2-
Standard of Review
Summary judgment under Federal Rule of Civil Procedure
56(c) is appropriate when, viewing the evidence in the light most
favorable
to
the
nonmovant,
the
court
determines
that
“the
pleadings, depositions, answers to interrogatories and admissions
on file, together with the affidavits, show that there is no
genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.”
A dispute of material
fact is “genuine” if the evidence would allow a reasonable jury to
find in favor of the nonmovant.
Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986).
Initially the movant bears the burden of identifying
those portions of the pleadings and discovery in the record that
it finds demonstrate the absence of a genuine issue of material
fact on which the nonmovant bears the burden of proof at trial; a
“complete failure of proof concerning an essential element of the
nonmoving
party’s
immaterial.”
case
necessarily
renders
all
other
facts
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986);
Lujan v. National Wildlife Federation, 497 U.S. 871, 885 (1990);
Edwards v. Your Credit, Inc., 148 F.3d 427, 431 (5th Cir. 1998).
If the movant meets its burden and points out an absence
of evidence to prove an essential element of the nonmovant’s case
on which the nonmovant bears the burden of proof at trial, the
nonmovant must then present competent summary judgment evidence to
support the essential elements of its claim and to demonstrate
that there is a genuine issue of material fact for trial.
National Ass’n of Gov’t Employees v. City Pub. Serv. Board, 40
-3-
F.3d 698, 712 (5th Cir. 1994).
“[A] complete failure of proof
concerning an essential element of the nonmoving party’s case
renders all other facts immaterial.”
Celotex, 477 U.S. at 323.
The nonmovant may not rely merely on allegations, denials in a
pleading or unsubstantiated assertions that a fact issue exists,
but must set forth specific facts showing the existence of a
genuine issue of material fact concerning every element of its
cause(s) of action.
Morris v. Covan World Wide Moving, Inc,, 144
F.3d 377, 380 (5th Cir. 1998).
Conclusory allegations unsupported by evidence will not
preclude summary judgment.
National Ass’n of Gov’t Employees v.
City Pub. Serv. Board, 40 F.3d at 713; Eason v. Thaler, 73 F.3d
1322, 1325 (5th Cir. 1996). “‘[T]he mere existence of some alleged
factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment . . . .’”
State
Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990),
quoting Anderson v. Liberty Lobby, Inc.. 477 U.S. 242, 247-48
(1986).
“Nor is the ‘mere scintilla of evidence’ sufficient;
‘there must be evidence on which the jury could reasonably find
for the plaintiff.’” Id., quoting Liberty Lobby, 477 U.S. at 252.
The Fifth Circuit requires the nonmovant to submit “‘significant
probative evidence.’” Id., quoting In re Municipal Bond Reporting
Antitrust Litig., 672 F.2d 436, 440 (5th Cir. 1978), and citing
Fischbach & Moore, Inc. v. Cajun Electric Power Co-Op., 799 F.2d
194, 197 (5th Cir. 1986).
“If the evidence is merely colorable,
or
probative,
is
not
granted.”
significantly
summary
judgment
may
be
Thomas v. Barton Lodge II, Ltd., 174 F.3d 636, 644 (5th
-4-
Cir. 1999), citing Celotex, 477 U.S.
at 322, and Liberty Lobby,
477 U.S. at 249-50.
Allegations in a plaintiff’s complaint are not evidence.
Wallace
v.
Texas
Tech
Univ.,
80
F.3d
1042,
1047
(5th
Cir.
1996)(“[P]leadings are not summary judgment evidence.”); Johnston
v. City of Houston, Tex., 14 F.3d 1056, 1060 (5th Cir. 1995)(for
the
party
opposing
the
motion
for
summary
judgment,
“only
evidence-–not argument, not facts in the complaint--will satisfy’
the burden.”), citing Solo Serve Corp. v. Westown Assoc., 929 F.2d
160, 164 (5th Cir. 1991).
The nonmovant must “go beyond the
pleadings and by [his] own affidavits, or by depositions, answers
to interrogatories and admissions on file, designate specific
facts showing that there is a genuine issue of material fact for
trial.”
Giles v. General Elec. Co., 245 F.3d 474, 493 (5th Cir.
2001), citing Celotex, 477 U.S. at 324.
The court must consider all evidence and draw all
inferences from the factual record in the light most favorable to
the nonmovant.
Matsushita Elec. Indus. Co. v. Zenith Radio, 475
U.S. 574, 587 (1986); National Ass’n of Gov’t Employees v. City
Pub. Serv. Board, 40 F.3d at 712-13.
Summary
judgment
affirmative defenses.2
may
be
employed
to
adjudicate
U.S. v. McLean, 420 F. Supp. 2d 613, 615
(E.D. Tex. 2006), citing James W. Moore, et al., Moore’s Fed.
2
An affirmative defense does not seek to negate a
plaintiff’s case, but argues that even if the plaintiff’s claim is
true, he should be denied a remedy for other reasons.
In re
Hardwood P-G, Inc., Nos. 06-50057-LMC, 06-5278-LMC, 2007 WL
1728653, at *4 (Bkrtcy. W.D. Tex. June 12, 2007) citing Gomez v.
Toledo, 446 U.S. 635, 641 n.8 (1980).
-5-
Practice ¶56 (3d ed. 1999). The party moving for summary judgment
on an affirmative defense must submit evidence to support each
element of the defense and show there is no genuine issue of
material fact regarding it.
Id., citing
Rushing v. Kansas City
S. Ry. Co., 185 F.3d 496, 505 (5th Cir. 1999).
Applicable Substantive Law
Congress enacted the FLSA in 1938, during the Great
Depression, with the intent to “protect all covered workers from
substandard wages and oppressive working conditions.”
Barrentine
v. Arkansas-Best Freight System, Inc., 450 U.S. 728, 739 (1981).
The FLSA mandates that employers pay overtime compensation for
nonexempt employees.3
Rainey v. McWane, Inc., 314 Fed. Appx. 693,
694 (5th Cir. Mar. 12, 2009), citing 29 U.S.C. § 207(a).
The
FLSA, 29 U.S.C. § 207(a)(1), generally requires an employer to pay
employees who work more than forty hours per seven-day work week
at a rate not less than one and one-half times the employee’s
regular rate.
Allen v. Coil Tubing Servs., LLC, Civ. A. No. H-08-
3370, 2011 WL 4916003, *5 (S.D. Tex. Oct. 17, 2011); Vela v. City
of Houston, 276 F.3d 659, 666 (5th Cir. 2001); Thibodeaux v.
Executive Jet Intern., Inc., 328 F.3d 742, 749 (5th Cir. 2003).
Under 29 U.S.C. § 216(b), an employer who violates the
FLSA shall be liable for “unpaid overtime compensation . . . and
in an additional equal amount as liquidated damages.”
3
Moreover
The employer bears the burden of proving by a
preponderance of the evidence that an exemption from the overtime
provision is plainly and unmistakably applicable to his employee.
Meza v. Intelligent Mexican Marketing, Inc., 720 F.3d 577, 580-81
(5th Cir. 2013).
-6-
any person who repeatedly or willfully violates Section 206 or
207, relating to wages, shall be subject to a civil penalty not to
exceed $1,100 for each such violation.”
29 U.S.C. § 216(e)(2).4
Thus an employer who violates the FLSA is liable for
liquidated damages equal to the unpaid overtime unless the court
finds that the employer acted in good faith and had reasonable
grounds to believe that his actions complied with the statute and
therefore
declines
liquidated damages.
to
award
or
reduces
the
amount
of
the
Stokes v. BWXT Pantex, LLC, 424 Fed. Appx.
324, 326 (5th Cir. May 4, 2011), citing 29 U.S.C. § 260.
The
employer bears the burden of demonstrating that it acted in good
faith to escape mandatory liquidated damages under the statute.
Perez, 2011 WL 2672431, at *9, citing Singer v. City of Waco,
Tex., 324 F.3d 813, 821 (5th Cir. 2003), and Stokes v. BWXT Pantex,
LLC, 424 Fed. Appx. at 326.
Title 29 U.S.C. § 211(c) requires that the employer
“make, keep and preserve such records of the persons employed by
him and of the wages, hours, and other conditions of employment
4
Under FLSA, a violation is “willful” if the employer
“‘either knew or showed reckless disregard for . . . whether its
conduct was prohibited by the statute.’” Singer v. City of Waco,
Tex., 324 F.3d 813, 821 (5th Cir. 2002), quoting Reich v, Bay,
Inc., 23 F.3d 110, 117 (5 th Cir. 1994), quoting McLaughlin v.
Richland Shoe Co., 486 U.S. 128, 133 (1988). The plaintiff bears
the burden of demonstrating that the FLSA violation was willful.
Id. The Fifth Circuit determined that an employer acted willfully
when the evidence demonstrated that the employer had actual
knowledge that it was violating the FLSA and continued to do so.
Singer, 324 F.3d at 822. It also found a willful violation where
the evidence indicated that the employer was put on notice by the
local wage and hour board that its practices violated the overtime
provision, yet the employer continued in that practice without
investigating further. Reich v. Bay, Inc., 23 F.3d 110, 117 (5th
Cir. 1994).
-7-
maintained by him.”
As summarized in Lynch v. Jet Center of
Dallas, LLC, Civ. A. No. 3:05-CV-2229-L, 2007 WL 211101, *5 (N.D.
Tex. Jan. 26, 2007),
Under the FLSA, “an employee who brings suit
for unpaid overtime compensation bears the
burden of proving, with definite and certain
evidence, that he performed work for which he
was not properly compensated.”
Reeves v.
International Telephone & Telegraph Co., 616
F.2d 1342, 1351 (5th Cir. 1980), cert. denied,
449 U.S. 1077 . . . (1981), implicit
overruling on other grounds recognized in
Heidtman v. County of El Paso, 171 F.3d 1038,
1042 n.4 (5th Cir. 1999). Where an employer
keeps incomplete or [in]accurate records,
however, “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.”
In re Williams, 298 F.3d 458,
465 (5th Cir. 2002)(citing Anderson v. Mt.
Clemens Pottery Co., 328 U.S. 680, 687-88 . .
. (1946) [superseded in part by statute on
other grounds by The Portal-to-Portal Act,
amending FLSA in 1947, 29 U.S.C. § 251, et
seq.].
The burden then shifts to the
employer to come forward with evidence of the
precise amount of work performed or with
evidence to negate the reasonableness of the
inference to be drawn from the employee’s
evidence. Anderson, 328 U.S. at 687-88. “If
the employer fails to produce such evidence,
the court may then award damages to the
employee, even though the result be only
approximate.” Id. at 688.
As stated by the Supreme Court, “The remedial nature of this
statute and the great public policy which it embodies . . .
militate against making [the plaintiff’s burden] an impossible
hurdle for the employee.”
Anderson, 328 U.S. at 687.
It is the
employer’s duty to keep records of the employee’s wages, hours,
and other conditions and practices of employment; the employer is
-8-
in a superior position to know and produce most probative facts
concerning
the
nature
and
amount
of
work
performed
and
“[e]mployees seldom keep such records themselves.” Id. Therefore
if the employer fails to keep proper and accurate records and “the
employee cannot offer convincing substitutes,”
[t]he solution is not to penalize the
employee by denying him any recovery on the
ground that he is unable to prove the precise
extent of uncompensated work. Such a result
would place a premium on an employer’s
failure to keep proper records in conformity
with his statutory duty; it would allow the
employer to keep the benefits of an
employee’s
labors
without
paying
due
compensation as contemplated by the Fair
Labor Standards Act. In such a situation we
hold 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.
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. If the employer fails to produce
such evidence, the court may then award
damages to the employee, even though the
result be only approximate.
Id. at 687-88.
“‘It is . . . a fundamental precept of the FLSA that an
employee should not be denied [recovery] because proof of the
number of hours worked is inexact or not perfectly accurate.’”).
Perez, 2011 WL 2672431, *9, quoting Monroe v. FTS USA, LLC, 763 F.
Supp. 2d 979, 989 (W.D. Tenn. 2011). “A plaintiff need not ‘prove
each hour of overtime with unerring accuracy or certainty.’”
Prince, 2009 WL 2170042, *6.
“In the absence of rebuttal by
-9-
defendants, plaintiffs’ recollection and estimates of hours worked
are presumed to be correct.”
Id., quoting Ting Yao Lin v. Hayashi
Ya II, Inc., No. 08-CV-6071, 2009 WL 289653, *3 (S.D.N.Y. Jan. 30,
2009)(finding
plaintiffs’
initial
burden
was
satisfied
by
affidavits based on the plaintiffs’ recollection describing the
time spent performing various tasks for which they did not receive
overtime
compensation).
Evidence
can
include
plaintiff’s
testimony as to when and how many overtime hours he worked,
plaintiff’s affidavit to such, etc.
Prince, 2009 WL 2170042, at
*6.
Title 29 U.S.C. § 213, titled “Exemptions,” identifies
types of employees who are exempt from the FLSA’s overtime
provisions of sections 206 and 207. It includes employees working
in
bona
fide
executive,
administrative,
and
professional
capacities, certain educational or sales activities and certain
specified occupations (e.g., seamen, “outside salesmen”).
The
employer bears the burden of demonstrating that it is entitled to
an
exemption
Exemptions
because
from
the
its
FLSA
employee
overtime
performs
exempted
provisions
are
work.
narrowly
construed against the employer, and the employer bears the burden
of demonstrating that an employee is exempt.
Tyler v. Union Oil
Co. of Cal., 304 F.3d 379, 402 (5th Cir. 2002), citing Dalheim v.
KDFW-TV, 918 F.2d 1220, 1224 (5
th
Cir. 1990); Singer v. City of
Waco, Texas, 324 F.3d 813, 820 (5th Cir. 2003); Songer v. Dillon
Resources, Inc., 618 F.3d 467, 471 (5th Cir. 2010).
Corning
Glass
Works
v.
Brennan,
417
U.S.
See also
188,
(1974)(“[A]pplication of an exemption under the Fair Labor
-10-
196-97
Standards Act is a matter of affirmative defense on which the
employer has the burden of proof.”).
A defendant asserting an
affirmative defense “must establish beyond peradventure all of the
essential elements of the . . . defense to warrant judgment in his
favor.”
Fontenot v. Upjohn Co. , 780 F.2d1190, 1194 (5
1986)(emphasis in original).
th
Cir.
See also Corning Glass Works v.
Brennan, 417 U.S. 188, 196-97 (1974)(“general rule that the
application of an exemption under the Fair Labor Standards Act is
a matter of affirmative defense on which the employer has the
burden of proof”); Dalheim, 918 F.2d at 1224 (“The § 13(a)(1) [29
U.S.C. § 213(a)(1)] exemptions are ‘construed narrowly against the
employer seeking to assert them,’ and the employer bears the
burden of proving that employees are exempt.”).
Whether an employee is exempt or not exempt under the
FLSA is mainly a fact issue determined by his salary and duties
and application of the factors in 29 C.F.R. § 541.200(a), but the
ultimate decision is a question of law.
Lott v. Howard Wilson
Chrysler-Plymouth, Inc., 203 F.3d 326, 330-31 (5th Cir. 2000);
McKee v. CBF Corp., 299 Fed. Appx. 426, 429 (5th Cir. Nov. 17,
2008).
For discussion of exemptions
see, e.g., Thibodeaux, 328
F.3d 742; Vela, 276 F.3d 659.
An express exception to the FLSA overtime requirement is
the
“occasional
or
sporadic”
exemption
under
29
U.S.C.
§
207(p)(2), asserted here by HISD against Plaintiffs’ overtime
compensation claims for their ancillary work:
If an employee of a public agency which is a
State, political subdivision of a State, or
an interstate governmental agency undertakes,
-11-
on an occasional or sporadic basis and solely
at
the
employee's
option,
part-time
employment for the public agency which is in
a different capacity from any capacity in
which the employee is regularly employed with
the public agency, the hours such employee
was employed in performing the different
employment shall be excluded by the public
agency in the calculation of the hours for
which the employee is entitled to overtime
compensation under this section.
Id.
Where the FLSA does not speak directly to an issue,
i.e., where the statutory meaning is unclear from the language of
the statute, the DOL’s regulations, opinion letters and other
forms of guidance “constitute a body of experience and informed
judgment to which courts and litigants may properly resort for
guidance.”
Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).
“Deference is appropriate only when Congress has given the agency
authority to make rules carrying the force of law.”
Kasten v.
Saint-Gobain Performance Plastics Corp. , 131 S. Ct. 1325, 1339
(2011), citing Gonzales v. Oregon, 546 U.S. 243, 255-56 (2006).
The
Secretary of Labor has such authorization under some
provisions of the FLSA (see, e.g., §§ 203(l) and 206(a)(2)).
at 1340.
Id.
See, e.g., Dole v. Petroleum Treaters, Inc., 876 F.2d
518, 521 (5th Cir. 1989)(holding that the DOL’s interpretations, 29
C.F.R. § 783.31 of the seaman exemption under the FLSA, 29 U.S.C.
§ 213(b)(6), which have been consistent since the regulation was
enacted in 1939, are entitled to great weight in construing the
FLSA.), citing Tony & Susan Alamo Foundation v. Secretary of
Labor, 471 U.S. 290, 297 (1985).
-12-
The regulations and the clarifications of regulations by
the DOL are entitled to deference unless they are unreasonable.
Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S.
837, 842-43 (1984)(“[I]f the statute is silent or ambiguous with
respect to the specific issue, the question for the court is
whether the agency’s answer is based on a permissible construction
of
the
statute.”);
Auer
v.
Robbins, 519 U.S. 452, 461
(1997)(holding that the DOL’s interpretation of a FLSA regulation
is “controlling unless ‘plainly erroneous or inconsistent with the
regulation’”),
quoting
Robertson
Council, 490 U.S. 332, 359 (1989).
warranted
where
the
court
v.
Methow
Valley
Citizens
Deference is also not
suspects
that
the
agency’s
interpretation “‘does not reflect the agency’s fair and considered
judgment on the matter in question,’” e.g. where “the agency’s
interpretation conflicts with a prior interpretation” or it
“appears
that
‘convenient
the
interpretation is nothing more than a
litigation
position,’” or “‘’a
post
hoc
rationalizatio[n]’ advanced by an agency seeking to defend past
agency action against attack.’” Christopher v. SmithKline Beecham
Corp., 132 S. Ct. 2156, 2166-67 (2012), citing and quoting Auer,
519 U.S. at 462; Thomas Jefferson Univ. v. Shalala, 512 U.S. 504,
515 (1994); and Bowen v. Georgetown Univ. Hospital, 488 U.S. 204,
212-13 (1988).
“Unlike a regulation, a DOL opinion letter is an
informal agency interpretation.”
Lipnicki v. Meritage Homes
Corp., Civ. A. No. 3:10-CV-605, 2014 WL 923524, at *4 (S.D. Tex.
Feb. 13, 2014).
The weight given to an opinion letter “‘will
depend upon the thoroughness evident in its consideration, the
-13-
validity of its reasoning, its consistency with earlier and later
pronouncements, and all those factors which give it power to
persuade, if lacking power to control.’”
Swift & Co., 323 U.S. at 140.
has
described
the
Id., quoting Skidmore v.
“[T]he term ‘ Skidmore deference’
deference
due to an agency’s informal
interpretation, which turns largely on its ‘power to persuade.’”
Id., citing Kasten v. Saint-Gobain Performance Plastics Corp., 131
S.
Ct.
1325,
1340
(2011)(Scalia, J., dissenting);
Luminant
Generation Co. LLC v. U.S. E.P.A., 675 F.3d 917, 928 (5 th Cir.
2012);
Christensen
v.
Harris
County,
529
U.S.
576,
587
(2000)(applying Skidmore deference to DOL’s opinion letter and
finding its interpretation unpersuasive because it was at odds
with the statutory language); and others.
Opinion letters have a
more limited role because, by their own terms, they are based on
a particular set of facts and circumstances.
The
C.F.R.
§
Department
553.30
of
(Occasional
Labor’s
or
Id. at *5.
(“DOL’s”)
sporadic
regulation,
employment--section
7(p)(2)), relating to § 207(p)(1), provides in relevant part,
(a) Section 7(p)(2) of the FLSA provides that
where State or local government employees,
solely at their option, work occasionally or
sporadically on a part-time basis for the
same public agency in a different capacity
from their regular employment, the hours
worked in the different jobs shall not be
combined for the purpose of determining
overtime liability under the Act.
(b) Occasional or sporadic.
(1) The term occasional or sporadic means
infrequent, irregular, or occurring in
scattered
instances.
There
may
be
an
occasional need for additional resources in
-14-
29
the delivery of certain types of public
services which is at times best met by the
part-time employment of an individual who is
already a public employee. Where employees
freely and solely at their own option enter
into such activity, the total hours worked
will not be combined for purposes of
determining any overtime compensation due on
the regular, primary job. However, in order
to prevent overtime abuse, such hours worked
are to be excluded from computing overtime
compensation due only where the occasional or
sporadic assignments are not within the same
general
occupational
category
as
the
employee's regular work.
(2) In order for an employee's occasional or
sporadic work on a part-time basis to qualify
for exemption under section 7(p)(2), the
employee's decision to work in a different
capacity must be made freely and without
coercion, implicit or explicit, by the
employer. An employer may suggest that an
employee undertake another kind of work for
the same unit of government when the need for
assistance arises, but the employee must be
free to refuse to perform such work without
sanction and without being required to
explain or justify the decision.
(3) Typically, public recreation and park
facilities, and stadiums or auditoriums
utilize employees in occasional or sporadic
work. Some of these employment activities are
the taking of tickets, providing security for
special events (e.g., concerts, sports
events, and lectures), officiating at youth
or other recreation and sports events, or
engaging in food or beverage sales at special
events, such as a county fair. Employment in
such activity may be considered occasional or
sporadic for regular employees of State or
local government agencies even where the need
can
be
anticipated
because
it
recurs
seasonally (e.g., a holiday concert at a city
college, a program of scheduled sports
events, or assistance by a city payroll clerk
in processing returns at tax filing time).
An activity does not fail to be occasional
merely because it is recurring. In contrast,
for example, if a parks department clerk, in
addition to his or her regular job, also
-15-
regularly works additional hours on a parttime basis (e.g., every week or every other
week) at a public park food and beverage
sales center operated by that agency, the
additional
work
does
not
constitute
intermittent and irregular employment and,
therefore, the hours worked would be combined
in computing any overtime compensation due.
(c) Different capacity.
(1) In order for employment in these
occasional or sporadic activities not to be
considered
subject
to
the
overtime
requirements of section 7 of the FLSA, the
regular
government
employment
of
the
individual performing them must also be in a
different capacity, i.e., it must not fall
within
the
same
general
occupational
category.
(2) In general, the Administrator will
consider the duties and other factors
contained in the definitions of the 3–digit
categories of occupations in the Dictionary
of Occupational Titles (except in the case of
public safety employees as discussed below in
section (3)), as well as all the facts and
circumstances in a particular case, in
determining whether employment in a second
capacity is substantially different from the
regular employment.
(3) For example, if a public park employee
primarily engaged in playground maintenance
also from time to time cleans an evening
recreation center operated by the same
agency,
the
additional
work
would
be
considered hours worked for the same employer
and
subject
to
the
Act's
overtime
requirements because it is not in a different
capacity. This would be the case even though
the work was occasional or sporadic, and was
not regularly scheduled. Public safety
employees taking on any kind of security or
safety function within the same local
government are never considered to be
employed in a different capacity.
(4) However, if a bookkeeper for a municipal
park agency or a city mail clerk occasionally
-16-
referees for an adult evening basketball
league sponsored by the city, the hours
worked as a referee would be considered to be
in a different general occupational category
than the primary employment and would not be
counted as hours worked for overtime purposes
on the regular job. A person regularly
employed as a bus driver may assist in crowd
control, for example, at an event such as a
winter festival, and in doing so, would be
deemed to be serving in a different capacity.
. . .
It is undisputed here that HISD is a local governmental
entity.
Tex. Local Gov’t Code § 271.151(3)(school districts
included
in
political
definition
subdivision
554.001(2)(c)(same).
of
of
“local
the
governmental
state);
Tex.
entity”
Gov’t
as
a
Code
§
See Doe v. Santa Fe Indep. Sch. Dist., 168
F.3d 806, 809 (5th Cir. 1999)(stating that Santa Fe Independent
School District “is a political subdivision of the State of
Texas”).
The FLSA has a two-year statute of limitations, but that
period is extended to three years where the violation is willful.
29 U.S.C. § 255(a).5
5
To show that an employer willfully violated
Section 255 states in relevant part,
Any action commenced on or after May 14,
1947, to enforce any cause of action for
unpaid
minimum
wages,
unpaid
overtime
compensation, or liquidated damages under the
Fair Labor Standards Act of 1938 . . .
(a) if the cause of action accrues on or
after May 14, 1947–-may be commenced within
two years after the cause of action accrued,
and every such action shall be forever barred
unless commenced within two years after the
cause of action accrued, except that a cause
of action arising out of a willful violation
may be commenced within three years after the
cause of action accrued . . . .
-17-
the FLSA, the plaintiff employee bears the burden to show that the
employer “either knew or showed reckless disregard for the matter
of whether its conduct was prohibited by” the Act.
of
Waco,
Texas,
324
F.3d
813.
821
(5th
Cir.
Singer v. City
2003),
quoting
McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988).
Generally the employee must show that the employer had some reason
to know that its conduct violated the FLSA beyond mere ignorance
of the law, e.g., that the employer had previously been put on
notice that its practices violated the law.
Mireles v. Frio
Foods, Inc., 899 F.2d 1407, 1416 (5th Cir. 1990); Reich v. Bay,
Inc., 23 F.3d 110, 117 (5th Cir. 1994).
HISD’s Motion for Summary Judgment (#12)
HISD alleges that Ford and Reid are former, non-exempt,
hourly HISD employees who worked in HISD’s Athletic Department.
Although Ford and Reid charge that HISD failed to pay them
overtime compensation for the “extra” work that they performed,
beyond their regular job duties, HISD asserts it was not required
to pay them overtime for that work under the “occasional or
sporadic” exemption to FLSA’s overtime requirement under 29 U.S.C.
§ 207(p)(2) and 29 C.F.R. § 553.30(b).
HISD claims that the only
issue here is whether HISD properly applied this exemption.
For the “occasional or sporadic” exemption to apply
under 29 C.F.R. § 553.30(a), HISD observes that the employer must
show that (1) the
plaintiff, as an employee of a state or local
governmental entity, (2) voluntarily (3) performed occasional or
sporadic work for the governmental entity that was part-time and
-18-
(4) in a different capacity from the regular duties of the
employee. 29 C.F.R. § 553.30(a)
With supporting documentation, HISD explains that it
hired Ford in 2007 as, and he remained at all relevant times as,
a groundskeeper at HISD’s Delmar Sports Complex, until he resigned
on or about January 6, 2012.
HISD hired Reid in 2004, initially
for work with its schools and later, and at all relevant times for
purposes of this lawsuit, as a stadium and equipment technician at
Delmar Sports Complex, specifically the Delmar field house, until
he resigned on or about July 7, 2012.
HISD explains that Plaintiffs did two types of work:
(1) “regular” work comprised of their daily job functions, i.e.,
groundskeeping work on athletic fields and cleaning after athletic
events at the Delmar Sports Complex; and (2) “extra” work done in
a different capacity than their “regular” job duties. Plaintiffs’
“regular” work was performed Monday through Friday from 7:00 a.m.
to 3:00 p.m.
Ford’s regular job functions involved tasks like
mowing grass, weed-eating, and cleaning the stands after sporting
events.
Reid’s regular work was comprised of mowing grass,
preparing fields for sporting events, picking up trash, emptying
trash cans, power washing stadiums, and cleaning parking lots
after events.
40.
Ex. A at pp. 16-18, 49-50; Ex. B at pp. 19-20, 35,
Plaintiffs have stated during their depositions that they do
not seek to recover overtime wages for their regular work, for
-19-
which they were properly paid,6 but only overtime for their extra
work.
HISD maintains that Plaintiffs “had the opportunity to
perform
‘extra’
work
during
HISD
athletic
unrelated to their regular work duties.
events”
#12 at p. 3.
that
was
The extra
work involved selling and taking tickets and operating time clocks
for sporting events, while Ford additionally guarded doors.
Ex.
A at pp. 16-18; Ex. A-1 (examples of Ford’s time sheets for extra
work) at pp. 4-5; Ex. B at pp. 19-20, 35, 40; Ex. B-1 (examples of
Reid’s time sheets for extra work).
The extra work is designated
(and thus distinguished from regular work) on payroll records as
“Stadium Attendant” work. Ex. B; Ex. C, (Ford’s payroll records);
Ex. D. (Reid’s payroll records).
Ford and Reid were paid $10.50
per hour for their extra work, a different rate from that for
their regular work (Ex. B at pp. 28-29).7
Moreover they performed
the extra work after their regular work hours (i.e., not from 7:00
a.m. to 3:00 p.m.).
They also logged in their hours for extra
work on different time sheets from those for reporting their
regular work hours (Ex. A at pp. 29-30; Ex. B at pp. 26-27, 3940).
In addition, they admitted during their depositions that
they could choose whether or not to do the extra work (Ex. A at
pp. 18-20; Ex. B at pp. 22-24).
6
Ford Dep., Ex. A at pp. 36-37; Reid Dep., Ex. B at pp.
12, 15.
7
In their Opposition (#16 at pp. 5-6), Ford and Reid
state that Ford was paid $8.00 per hour for his primary job and
$10.50 per hour for his work as a stadium attendant (Exs. 1, 2 and
5). Reid was paid $11.50 per hour for his primary job and $10.50
per hour for his work as a stadium attendant (Exs. 2 and 7).
-20-
Because the statute of limitations for alleged willful
violations of the FLSA is three years, 29 U.S.C. § 255(a),8 Ford,
who filed his complaint (#1) on September 4, 2013, can only seek
to recover wages back to September 4, 2010.
Reid, who filed his
claim on March 24, 2014 in Plaintiffs’ First Amended Complaint
(#10), may only endeavor to recover wages back to March 24, 2011.
Because Ford resigned on January 6, 2012, the time period involved
for his claim is 489 days, while for Reid, whose last day at work
was July 7, 2012, the relevant period is 471 days.
HISD
“occasional
or
argues
that
sporadic”
Ford
and
was
and
Reid’s
part-time
extra
work
because
it
was
was
available irregularly, because Plaintiffs were not compelled to do
the work, but could chose to do so to make extra money, and
because it was not performed during their regular work hours or
during overtime for their full-time jobs.
regulation,
29
C.F.R.
§
553.30(b),
defines
The implementing
“occasional
or
sporadic” as meaning “infrequent, irregular, or occurring in
scattered instances.”
HISD highlights that the definition is
phrased in the disjunctive (“or”):
the extra work does not have
to be both occasional and sporadic.
29 U.S.C. § 207(p)(2).
See,
e.g., U.S. Dept. of Labor Wage & Hour Div. Opinion Letter (Fair
Labor Standards Act), FLSA2005-32, 2005 DOLWH LEXIS 39 (Sept. 9,
2005)(occasional work:
volunteer reserve sheriff’s deputies
performing security services for a week at an annual state fair
every August qualified for the exemption); U.S. Dept. of Labor,
8
HISD denies violating the FLSA, much less willfully
doing so.
-21-
Wage & Hour Div., Opinion Letter (Fair Labor Standards Act),
FLSA2008-16, 2008 DOLWH LEXIS 40 (Dec. 18, 2008)(sporadic work:
a Latino victim specialist working part-time as a reserve police
officer qualified for the exemption so long as his hours did not
occur “on a predictable basis”). “An activity does not fail to be
occasional
merely
553.30(b)(3).
scheduled
because
it
is
recurring.”
28
C.F.R.
§
Work performed in relation to “a program of
sports
events”
sporadic exemption.
may
qualify
for
the
occasional
or
Id.
HISD argues that the proper inquiry for determining if
additional work performed by an employee qualifies as occasional
or sporadic under the FLSA is whether the employee’s performance
of the work is occasional or sporadic, not whether the work itself
is.
See U.S. Dept. of Labor, Wage & Hour Div., Opinion Letter
(Fair Labor Standards Act), FLSA2008-16, 2008 DOLWH LEXIS 40 (Dec.
18, 2008)(applying an individualized inquiry about whether an
employee’s infrequent performance of work that was consistently
available
to
exemption).
him
qualifies
for
the
occasional
or
sporadic
HISD maintains that Plaintiffs performed the extra
work at scheduled, recurring HISD sporting events irregularly and
infrequently, as evidenced by their payroll records and therefore
their work qualifies as occasional or sporadic under the FLSA.
HISD declares that Ford’s performance of his stadium
work was “sporadic” because it varied from day to day, month to
month, and year to year, as evidenced by Ford’s payroll records
(Ex. C) and from a chart HISD drew in its motion (#12 at p. 11).
His hours of extra work for a single shift varied from two hours
-22-
to thirteen hours; he worked on different days and for different
numbers of days in different weeks, and different numbers of hours
in different months.
Ford’s performance of extra work was also “occasional”
because, again as reflected in his payroll records, he worked
infrequently during the relevant 489-day period: he performed
extra work on only 112 days, 23% of the period.
Ex. C.
Broken
down, the extra work was performed by Ford on 35 days in 2010, and
77 days in 2011.
Ford did not perform any extra work in the 184
days between February 22, 2011 and August 25, 2011.
HISD.00167-HISD.00174.
Ex. C at
The infrequency of this stadium work by
Ford constitutes “occasional” work within the meaning of the
exemption.9
Reid’s performance of extra work was also “sporadic”
because, as evidenced in his payroll records, it also varied from
day to day, from month to month, and from year to year.
In a
single shift, his work varied from less than one hour up to 13.5
hours.
Ex. D.
As another example, for the week from September
12-18, 2011 he worked on Thursday, Friday and Saturday (Ex. D at
HISD.00240), but the next week he did no stadium work at all. See
also HISD’s chart, #12 at p.15.
Reid’s
qualifies
as
infrequent
“occasional”
performance
under
29
demonstrated by his payroll records.
9
of
U.S.C.
extra
§
work
also
207(p)(2),
as
Out of the 471 days in his
Without identifying the time period or providing
evidentiary support, Plaintiffs claim that Ford worked 115
separate times for 551.15 hours as a stadium attendant, and Reid,
35 separate times for 182.35 hours. #16 at p. 9.
-23-
relevant
time
period,
he
performed
extra
occasions, or 8% of the days in that period.
work
on
Ex. D.
only
36
He worked
only ten days in 2011 (Ex. D at HISD.00232-00244) and 26 days in
2012 (Ex. D at HISD,00244-00254).
HISD shows that three times
there were periods of 60 or more days that Reid did not perform
even one hour of extra work:
(1) 175 days between March 24, 2011-
September 14, 2011; (2) 61 days between Sept. 27, 2011 and
November 28, 2011; and (3) 98 days March 31, 2012-July 7, 2012.
Ex. D at HISD.00232-00240, 00240-00243, and 00249-00254.
HISD also contends that Ford and Reid’s extra work met
the requirement under 29 C.F.R. § 553.30(c)(2) that extra work be
distinct from, and performed in a “different capacity” than, the
employees’ regular work. That regulation sets out examples in
parts of subsections (c)(3) and (c)(4) to help determine if the
work was or was not performed by the employee in a different
capacity:
(3) . . . [F]or example, if a public park
employee primarily engaged in playground
maintenance also from time to time cleans an
evening recreation center operated by the
same agency, the additional work would be
considered hours worked for the same employer
and
subject
to
the
Act's
overtime
requirements because it is not in a different
capacity.
(4) [I]f a bookkeeper for a municipal park
agency or a city mail clerk occasionally
referees for an adult evening basketball
league sponsored by the city, the hours
worked as a referee would be considered to be
in a different general occupational category
than the primary employment and would not be
counted as hours worked for overtime purposes
on the regular job. A person regularly
employed as a bus driver may assist in crowd
control, for example, at an event such as a
-24-
winter festival, and in doing so, would be
deemed to be serving in a different capacity.
Here, urges HISD, Plaintiffs’ extra work duties (taking tickets,
operating timing clocks and guarding doors during athletic events)
were distinctly different from their regular work duties of mowing
grass and cleaning parking lots and stands after sports events.
Their regular work tasks dealt with the preparation required for
HISD’s sports teams to compete in a variety of events and with
cleaning up after those events. Their extra work tasks dealt with
ensuring that spectators bought tickets to the events, keeping
spectators out of restricted areas, and assisting referees with
timing the events.
Their regular work duties were performed
before and after the events, while their extra work duties were
performed during them.
The only similarity between the two is
that they both related to sporting events, insists HISD.
HISD points out that the O*NET system’s occupation
classifications,
published
by
the
Employment
and
Training
Administration (“ETA”), reflect that most of the tasks Ford and
Reid performed in regular work and those performed in their extra
work are two “occupations” that are substantially different.10
10
Employment and Training Admin., U.S. Dep’t of Labor,
Dictionary of Occupational Titles (4 th ed. 1991). As noted in
Jones v. Montaire Corp. Long Term Disability Plan, 542 F.3d 234,
235 n.2 (8 th Cir. 2008), abrogated on other grounds as stated in
Chronister v. Unum Life Ins. Co. of America, 563 F.3d 773, 775 (8th
Cir. 2009),
The [Dictionary of Occupational Titles] was
created by the Employment and Training
Administration, and was last updated in 1991.
It
is
included
on
the
Office
of
Administrative Law Judges web site because it
is a standard reference in several types of
-25-
O*NET
would
“Landscaping
classify
and
Plaintiffs’
Groundskeeping
regular
Workers”
work
duties
under
(37-3011.00),
which
includes tasks like mowing and caring for grass, gathering and
cases
adjudicated
by
the
office
of
Administrative law Judges, especially laborrelated immigration cases. The [Dictionary
of Occupational Titles], however, has been
replaced by the O*NET.
”
www.oalj.gol.gov/LIBDOT.HTM . . . .
The Eighth Circuit further explained,
The O*NET “is a database of occupational
requirements and worker attributes. It
describes occupations in terms of the skills
and knowledge required, how the work is
performed, and typical work settings. It can
be used by businesses, educators, job
seekers, human resources professionals, and
the publicly funded Workforce Investment
System to help meet the talent needs of our
competitive global economy.”
www.doleta.gov/programs/ONET . . . .
The O*NET “superseded the [Dictionary of Occupational Titles] as
the
federal
government’s
primary
source
of
occupational
information.” Hauser v. Commissioner of Social Sec., No. 1:12-cv796, 2014 WL 48554, at *12 (S.D. Ohio Jan. 7, 2014)(citing 73 Fed.
Reg. 78864 (Dec. 23, 2008), and Horsley v. Comm’r of Soc. Sec.,
No. 1:11-cv-703, 2013 WL 980315, at *3 (S.D. Ohio Mar. 13, 2013)),
report and recommendation adopted, 2014 WL 221946 (S.D. Ohio Jan.
21, 2014). In Wennersten v. Colvin, No. 12-cv-783-bbc, 2013 WL
4821473, at * 4 (W.D. Wis. Sept. 10, 2012), the district court
commented, “Because the Dictionary has not been updated since
1991, it is ‘considered obsolete by mosh other federal agencies’
outside the Social Security administration. Even the Department
of Labor, the publisher of the Dictionary, now uses the O*NET
instead.” Id., citing Horsley and Jordan v. Astrue, 4:08CV3217,
2009 WL 3380979 (D. Neb. Oct. 21, 2009). See also Cunningham v.
Astrue, 360 Fed. Appx. 606, 616 (6th Cir. Jan. 5, 2010)(“In light
of the fact that more current job descriptions were available at
the time of the hearing before the ALJ--the Department of Labor
replaced the [Dictionary of Occupational Titles] with the
Occupational information Network (O*NET), a database that is
continually updated based on data collection efforts that began in
2001--and the two descriptions relied on by the VE are not found
in O*NET--we conclude that the VE’s dependence on the [Dictionary]
listings alone does not warrant a presumption of reliability.”
-26-
removing litter, and providing upkeep of grounds features.
See
O*NET, http://onetonline.org/link/summary/37-3011.00. Their extra
work would likely fall under the O*NET’s system classification of
“Amusement and Recreation Attendants” (39-3091.00), which lists
duties such as selling tickets and collecting fees from customers,
selling and serving refreshments to customers, and monitoring
activities to ensure adherence to rules and safety procedure. See
O*NET,
http://www.onetonline.org/link/summary/29-3091.00.
See
also U.S. Dept. of Labor, Wage & Hour Div., Opinion Letter (Fair
Labor Standards Act), FLS2006-40, 2006 DOLWH LEXIS 53 (Oct. 20,
2006)(relying on the O*NET system’s occupation descriptions to
determine whether a school employee’s regular duties differ from
the duties required of the employee working as
security worker, etc. at a sporting event.).
clearly
the
tasks
of
the
two
kinds
of
a ticket-taker,
HISD contends that
work
are
distinctly
different and that Plaintiffs’ extra work was performed in a
different capacity from their regular work.
Plaintiffs’ Opposition (#16)
Arguing that HISD is not entitled to the exemption from
overtime requirements and must pay Ford and Reid overtime for time
spent on their “extra” or ancillary work as “stadium attendants,”
Ford and Reid emphasize that the Delmar Sports Complex conducts
sporting events throughout the school year (“from virtually the
first
day
of
school
until
the
last
and
sometimes
into
the
summer”11)(Exs. 1 (Ford Decl.), 2 (Reid Decl.), 3, 4, and 5), that
11
#16 at p. 11.
-27-
“these events are not ‘special’” but are “an on-going part of the
school year,”12 that these events are not possible without the work
performed by Ford and Reid in their primary job and as stadium
attendants, and that all Ford’s and Reid’s duties are essential to
the business of running the continuous sporting events. Thus they
cannot be occasional or sporadic.
Ford and Reid state that there
are no reported cases on the meaning of “occasional or sporadic,”
and only five Wage and Hour Opinions by the DOL, which fail to
establish a bright line for what constitutes “occasional or
sporadic” employment, yet Plaintiffs simultaneously argue that
HISD cannot meet the standard for the “occasional or sporadic”
exemption.
The fact that the events of different sports are
seasonal or regularly occurring does not necessarily mean they are
“infrequent.” HISD staffs every one of the different sports games
with employees who take tickets, keep time and score, and monitor
the halls.
Disagreeing with HISD, Plaintiffs contend that it is the
job that must be evaluated and that the application of the
exemption is not an “individualized inquiry.”
In light of the
many potential employees who could be affected and because the pay
policy is district-wide, the Court should focus on the job and not
the particular employee.
Nor, insist Ford and Reid, has or can HISD prove that
the duties performed by Ford and Reid in their ancillary work were
distinct from those they performed in their primary job on the
12
#16 at p. 10.
-28-
ground that the current O*NET classifications, as well as the
previously used Dictionary of Occupational Titles, separate the
particular duties of their primary job and of their extra work
sufficiently to make them “significantly different.”
They argue
that HISD’s reliance on the two separate O*NET classifications of
“Landscaping
and
Groundskeeping
Workers
(37-3011.00)”
and
“Amusement and Recreation Attendants (39.3091.00) is misleading:
the two are actually numerically right next to each other in the
O*NET’s job families because there is no 38 series; thus it cannot
be said that they are significantly different.
In the previous
classification of duties in the Dictionary of Occupational Titles
the two jobs were both listed in the “Service Occupations” section
and were both in the 300's.
Their primary job duties would fall
under either “Cleaners” (Group No. 381) or “Janitors” (Group No.
382).
Ex.
11,
pp.
27-29.
At
the
very
least,
these
classifications raise genuine issues of material fact as to
whether they are distinct.
Their extra work would generally be
classified as “Ticket Taker” (344.667-010):
“Collects admission
tickets and passes from patrons at entertainment events. . . .
Refuses admittance to patrons without ticket or pass, or who are
undesirable for reasons such as intoxication or improper attire.
. . . May be designated Gate Attendant or Turnstile Attendant.”
Ex. 12.
They argue that although no specific designations in the
Dictionary of Occupational Titles addresses duties of a timekeeper
or scorekeeper, these tasks “are not significantly different from
the other jobs to justify an exemption.”
-29-
#16 at p. 14.
All their
duties were essential to the overall operation of the Delmar
sports Complex.
Plaintiffs
553.30(c)(3)
does
further
not
maintain
establish
an
that
exemption
29
C.F.R.
and
that
§
HISD
misinterprets its examples in a way that obstructs the purpose of
the FLSA.
HISD claims that Ford’s and Reid’s primary jobs and
their other jobs are similar to the example of a “bookkeeper” as
contrasted to a “referee” and thus the exemption would apply.
Ford and Reid disagree.
Every task performed by Ford and Reid is
essential to the performance of a sporting event and is carried
out in the same space, i.e., the Sports Complex.13
They insist
there is a fact issue whether “maintenance” can include taking
tickets, score keeping, time keeping, and hall monitoring since
all these task are absolutely required for the facility to conduct
its business.
Even if HISD is right that the two jobs are different,
Ford and Reid contend that HISD has still violated the FLSA by
paying two different rates and not paying Plaintiffs based on a
weighted average.
Under the law, when an employee in a single
workweek works at two or more different types of work for which
different straight-time rates exist, the regular rate for that
week is the weighted average of those rates:
the earnings of all
are added together and the total is divided by the number of hours
13
HISD charges that such illogical reasoning would mean
that a school principal performs in the same capacity as the
school’s janitor because both jobs were essential to the
performance of the school and both employees perform their duties
on the same campus. #18 at p.6. The Court agrees.
-30-
worked at all the jobs.
See 29 C.F.R. §§ 778.415-.421 and 29
U.S.C. § 207(g)(2).
HISD’s Reply (#18)
HISD asserts that Plaintiffs have not contested that (1)
they were properly paid for all overtime worked in their regular
job capacity, (2) their stadium work was part-time, and (3) their
stadium work was voluntary.
It concludes that the only issues in
dispute relating to the application of the occasional or sporadic
exclusion
are
whether
their
stadium
work
was
occasional
or
sporadic and whether it was distinct from their regular work and
performed in a different capacity.
Distinguishing an “exclusion”
from
FLSA,
an
“exemption”
under
the
HISD
argues
that
an
“exemption” “removes the employee from under the purview of the
statute
altogether
based
classification and salary.”
541.0-710.
on
the
employee’s
#18 at p.2, citing
job
duties,
29 C.F.R. §§
In contrast, the occasional or sporadic exclusion
removes specific hours of work by a non-exempt state or local
employee from the total number of hours worked by him during the
workweek, but does not completely negate the calculations.
C.F.R. § 553.30(a).
29
Therefore HISD urges the Court to disregard
as not applicable here Plaintiffs’ argument that FLSA exemptions
are construed narrowly against the employer.
HISD argues that Plaintiffs’ insistence that the Court
review the stadium work on a class-wide, job basis rather than
employ an individualized inquiry specific to each worker lacks
legal support and is not logical. The plain language of 29 C.F.R.
§ 553.30(a) focuses on the hours actually spent by a particular
-31-
worker, not on extra work potentially available to an employee.
HISD hypothetically observes that if a city holds a farmers’
market every week, but the city employee chooses only to work at
it
two
days
a
year,
his
extra
work
would
not
satisfy
the
occasional or sporadic exclusion merely because the extra work was
consistently and frequently available to all city employees. The
Court agrees with HISD on this argument; § 207(p)(2) refers to an
individual employee and not a group of employees who fill that job
at different times.
Title 29 U.S.C. § 203(e) defines “employee”
as “an individual employed by an employer.”
HISD concludes that
the application of an appropriate individualized assessment to
each Plaintiff’s work here reveals that the stadium work performed
by each man was both “occasional” and “sporadic.”
According to HISD, Plaintiffs address the frequency of
the stadium work available to them and avoid discussing the
sporadic nature of it.
HISD reiterates that not only did each
Plaintiff’s time sheets prove that each of their individual
performances of stadium work was irregular and changed depending
on the time, day of the week, day of the month, and the year, but
HISD further maintains that aggregately the stadium work was
sporadic:
it occurred “sometime” during the summer months and on
varying nights of the week during the school year, changing with
the particular sport in season, and at varying times.
9; Exs. 12-6, 12-7, 16-4.
#16 at p.
Thus the result does not depend on an
individualized or class-wide approach; under both, stadium work is
“sporadic.”
-32-
HISD also insists that it satisfies the requirement that
the stadium work be distinct from and be performed in a different
capacity than Plaintiffs’ regular work.
Plaintiffs’ regular job
duties were before and after the sports events, performed for the
benefit of the HISD students and the coaching staff, and essential
to the sporting events.
On the other hand, Plaintiffs’ stadium
work tasks were performed during the sports events, for the
benefit of the spectators, and were essential to presenting the
sports event as a performance.
HISD objects that the O*NET occupation classifications
do not demonstrate similarities between Plaintiffs regular and
stadium work.
Under Plaintiffs’ illogical reasoning, the duties
of an “Entertainment Attendant” (39-3091.00) are not distinctly
different from those of an “embalmer” (39-4011.00) because the
classification numbers are near each other.
their
argument
that
the
larger
the
Just as misplaced is
separation
between
the
classification numbers in the Dictionary of Occupational Title,
the greater the disparity in jobs, while the closer the numbers,
the more similar the job duties.
An example is that an employee
who regularly performed work as a “weight guesser” at a carnival
(342.357-010) would avoid the occasional or sporadic exemption if
he also worked as a “jinrikisha driver” (rickshaw driver, 349.477010) because both jobs are within the 300 series numbers.
Instead,
the
correct
approach
is
to
look
to
the
facts
and
circumstances of the work that Ford and Reid actually performed,
with the clear result being that the distinctly different regular
and extra work tasks were performed in different capacities.
-33-
As
noted, an examination of the different jobs in both sources
demonstrates that HISD is correct and that Ford and Reid’s
contentions have no basis.
Last of all, HISD maintains, and the Court concurs, that
HISD did not violate the FLSA by paying two different rates and
not paying overtime using a weighted average.
the
FLSA
does
not
bar
an
employer
from
HISD insists that
paying
an
employee
different rates of pay and that the occasional or sporadic
exclusion removes Plaintiffs’ stadium work from the competition of
overtime so that the weighted average does not apply.
It is well
established that an employee who performs “different kinds of
work” may be compensated with different rates of pay.
§ 778.11514; 29 U.S.C. § 207(g).
29 C.F.R.
See Allen v. Bd. of Public Educ.
for Bibb County, 495 F.3d 1304, 1311-13 (11th Cir. 2007)(Section
207(g)(2)15 permits alternative method of calculating overtime for
14
Section 778.115 (“Employees working at two or more
rates”) states in relevant part,
Where an employee in a single workweek works
at two or more different types of work for
which different nonovertime rates of pay (of
not less than the applicable minimum wage)
have been established, his regular rate for
that week is the weighted average of such
rates. That is, his total earnings (except
statutory exclusions) are computed to include
his compensation during the workweek from all
such rates, and are then divided by the total
number of hours worked at all jobs . . . .
15
29 U.S.C. § 207(g)(2) provides,
(g) Employment at piece rates
No employer shall be deemed to have violated
subsection (a) of this section by employing
-34-
employees paid more than one rate and does not require that
different types of work must be performed if different rates are
paid)(citing 29 C.F.R. § 778.115)(quoting
Walling v. Youngerman-
Reynolds Hardwood Co., 325 U.S. 419, 424 (1945)(“As long as the
minimum hourly rates established by Section 6 are respected, the
employer and employee are free to establish this regular rate at
any point and in any manner they see fit.
They may agree to pay
compensation according to any time or work measurement they
desire.”))16; Rodriguez v. Republic Services, Inc., No. SA-13-CV-
any employee for a workweek in excess of the
maximum workweek applicable to such employee
under such subsection if, pursuant to an
agreement or understanding arrived at between
the
employer
and
the
employee
before
performance of the work, the amount paid to
the employee for the number of hours worked
by him in such workweek in excess of the
maximum workweek applicable to such employee
under such subsection-(2) in the case of an employee performing two
or more kinds of work for which different
hourly or piece rates have been established,
is computed at rates not less than one and
one-half
times
such
bona
fide
rates
applicable to the same work when performed
during nonovertime hours . . . .
16
This Court notes that in Allen, 495 F.3d at 1313, the
Eleventh Circuit opined that when one reads section 778.115 in the
context of 29 C.F.R. § 778.109 (“The following sections give some
examples of the proper method of determining the regular rate of
pay in particular instances . . .. “),
it becomes apparent that the former is one of
the examples mentioned in the latter as a way
that the regular rate may be calculated in
certain cases. While it exemplifies one way
that a regular rate may be determined, it
does not mandate that differing rates of pay
are only permitted when different types of
work are performed.
-35-
20-XR, 2013 WL 5656129, at *2 (W.D. Tex. Oct. 15, 2012).17
Furthermore urges HISD, as discussed, Plaintiffs’ stadium hours
are removed from their overtime calculations under the occasional
or sporadic exclusion. Therefore HISD complied with the FLSA when
it compensated Plaintiffs at a different rate for their stadium
work and did not incorporate the stadium rate of pay into their
overtime calculations.
Judge Miller’s Opinion in Blair v. HISD18
Judge Miller’s case has facts very similar to those
before this Court in the instant case.
HISD hired Wiley Blair,
III in 1995 as a groundsman at the Delmar Sports Complex.
His
regular work, performed from 7:00 a.m. to 3:30 p.m., Monday
through Friday, was composed of cleaning the athletic facilities
and parking lots and readying the fields and locker rooms for
sporting events.
His ancillary work for the HISD sporting events
involved
tickets,
taking
running
the
clock,
and
providing
security, all outside of the time period of his regular work.
Blair was paid a different hourly rate for his regular work than
See also Corpus Juris Secundum Labor
§ 1339 (“Methods of
Computation”)(database updated Dec. 2014) (“A ‘blended rate’ may
be used in calculating the ‘regular rate’ of pay for employees who
are paid at more than one rate; the FLSA regulations do not
mandate that different types of work be performed in order for a
blended rate to be used.”), citing Allen, 495 F.3d 1306.
17
This Court notes that there have been no allegations
here that HISD pressured Plaintiffs to under-report or report
untruthful hours of overtime, nor has the accuracy of their
reported hours in HISD’s payroll records been challenged.
18
Exhibit to #21; Memorandum and Opinion, #20 in H-132628. Also available as Blair v. HISD, Civ. A. H-13-2628, 2014 WL
5429383 (S.D. Tex. Oct. 24, 2014).
-36-
for his extra work, and he was not paid overtime for the extra
work.
After Blair sued HISD for overtime compensation for his
ancillary work that was over forty hours per week when combined
with his regular work, HISD moved for summary judgment on the
grounds that the ancillary work was subject to the occasional or
sporadic exemption to the FLSA and that it did not have to pay
Blair overtime on the extra work.
Judge Miller, observing that there is no clear standard
to measure the occasional or sporadic nature of employment, found
that because Blair’s employment record showed that he worked in an
ancillary capacity mainly in November and December of 2010 and in
January and February of 2012, and otherwise sporadically, his
extra work was sufficiently infrequent, irregular or scattered to
meet the occasional or sporadic element of the exemption.
With
regard to the “different capacity” requirement, employing the two
examples in 29 C.F.R. § 553.30(c)(3) and (4), Judge Miller found
that Blair’s regular and ancillary duties were more similar to
those of the bookkeeper or mail clerk who also referees than to
the maintenance man who also cleans.
Since the case law and the
regulations fail to provide clear guidance, Judge Miller examined
the broad remedial purpose of the FLSA and its narrowly construed
exemptions.
He concluded that he could not find that Blair’s
extra work was similar enough to be within the same capacity as a
matter of law:
similarity
of
“There is a clear factual dispute as to the
Blair’s
regular
work
of
preparing
athletic
facilities for sporting events and his ancillary work of helping
run the events themselves”; “Blair’s duties for his ancillary work
-37-
were not ‘plainly and unmistakably’ within a different capacity.”
Blair, 2014 WL 5429383, at *4, citing A.H. Phillips, Inc. v.
Walling, 324 U.S. 490, 493 (1945)(“To extend an exemption to other
than those plainly and unmistakably within its terms is to abuse
the interpretive process and to frustrate the announced will of
the people.”); Yoakum v. PBK Architects, Inc., No. H-10-00278,
2011
WL
468870,
plaintiff’s
at
duties
*3
(S.D.
is
a
Tex.
fact
Oct.
4,
question);
2011
(nature
Owens
v.
of
CEVA
Logistics/TNT, No. H-11-2237, 2012 WL 6691115, at *15 (S.D. Tex.
Dec. 21, 2012)(employer bears the burden to show a FLSA exemption
plainly and unmistakably applies).
Judge Miller concluded that
HISD had not demonstrated as a matter of law that Blair’s regular
work was plainly and unmistakably in a different capacity than his
ancillary work and denied HISD’s motion for summary judgment.
HISD has moved for reconsideration (#21 in H-13-2628)
and responded in the instant action to Plaintiffs’ notification of
Judge Miller’s order (#24 in H-13-2598).
Miller
treated
the
occasional
or
It contends that Judge
sporadic
analysis
as
an
“exemption” rather than as an “exclusion” and therefore narrowly
construed it, leading to an erroneous result. (In the case before
this Court, HISD highlights the distinction between an exemption
and an exclusion).
See Sandifer v. U.S. Steel Corp., 134 S. Ct.
870, 879 n.7 (2014)(exemptions, generally identified in 29 U.S.C.
§ 213 in a section entitled “Exemptions,” in the FLSA, are
narrowly construed against the employer).
HISD explains that
courts are required to narrowly construe FLSA exemptions because
they
serve
to
completely
remove
-38-
covered
employees
from
the
statute’s protections.
Judge Miller’s application of a narrow
construction and higher burden of proof of an “exemption” on §
207(p)(2) is in error because § 207(p)(2) is an “exclusion” of
certain hours worked from overtime pay as opposed to an exemption
based on an employee’s job classification.
An employer is not
required to pay any overtime to an exempt employee nor to track
his work hours during the week.
classification
of
an
employee
29 U.S.C. § 213. Thus the
as
“exempt”
makes
FLSA’s
requirements, privileges, and protections completely inapplicable
to that employee.
In contrast, the occasional or sporadic
“exclusion,” contained in 29 U.S.C. § 20719(p)(2), removes the
“extra” hours worked by a nonexempt governmental employee from the
total number of hours he worked during the week for the purpose of
calculating overtime, thus reducing the employer’s total overtime
liability, but the employer still must pay the employee for the
extra (occasional or sporadic) hours worked outside his regular
job duties and overtime for any hours over forty that the employee
works in his regular job.20
Unlike an exemption, the occasional
or sporadic exclusion classifies the time worked by an employee,
as opposed to classifying the employee’s job. Unlike an exemption
(e.g., executive, administrative, professional), the occasional or
sporadic exclusion does not deny the employee the privileges and
19
Section 207 is entitled “Maximum hours.”
20
See 29 C.F.R. § 553.30(a)(“[W]here State or local
government employees, solely at their option, work occasionally or
sporadically on a part-time basis for the same public agency in a
different capacity from their regular employment, the hours worked
in the different jobs shall not be combined for the purpose of
determining overtime liability under the Act.”).
-39-
protections provided by the FLSA, and important public policy
considerations involved in exemptions are not implicated by the
occasional or sporadic exclusion.
Christopher v. SmithKline
Beecham Corp., 132 S. Ct. 2156, 2172 n.21 (2012)(the narrowly
construed standard required for exemptions under Arnold v. Ben
Kanowsky, Inc., 361 U.S. 388, 392 (1960)(exemptions to the FLSA
must be “narrowly construed against the employers seeking to
assert them and their application limited to those [cases] plainly
and unmistakably within their terms and spirit.”) does not apply
to general definitions relevant throughout the FLSA).
HISD argues that the occasional or sporadic exclusion is
more analogous to the Portal-to-Portal Act, enacted in response to
broad judicial interpretations of the FLSA’s undefined terms
“work” and “workweek,”21 which potentially threatened the creation
of “wholly unexpected liabilities.”
The Portal-to-Portal Act
exempted employers from FLSA liability for claims “based on
activities which are preliminary to or postliminary to” the
performance of principal activities that an employee is hired to
21
See 29 U.S.C. § 251(a); Tennessee Coal, Iron, & R. Co.
v. Muscoda Local No 123, 321 U.S. 590, 598 (1944)(broadly defining
“work” as activity “controlled or required by the employer and
pursued necessarily and primarily for the benefit of the employer
and his business”), superseded on other grounds, Portal-to-Portal
Act of 1947, Pub. L. No. 80-49, 61 Stat. 84. (excluding from FLSA
liability such activities as “walking, riding, or traveling to and
from the actual place of performance of the principal activity or
activities which such employee is asked to perform, and . . .
activities which are preliminary to or postliminiary to said
principal activity or activities.”); Integrity Staffing Solutions,
Inc. v. Busk, 135 S. Ct. 513 (2014)(holding that employees’ time
waiting to undergo and undergoing security screenings before
leaving warehouse each day was not compensable).
-40-
perform
(§
254(a)(2)22)
and
correlating
sections
203(o)23
(compensability of time spent changing or washing clothes at the
beginning or end of each workday24) and 251-62.
In passing the
22
The Portal-to-Portal Act of 1947 limited the scope of
employers’ liability in a number of ways. It excluded from
compensable time and FLSA liability such activities as “walking,
riding, or traveling to and from the actual performance of the
principal activity or activities which such employee is asked to
perform, and . . . activities which are preliminary to or
postliminary to said principal activity or activities.” 29 U.S.C.
§ 254(a).
23
29 U.S.C. § 203(o), enacted in 1949, is a subsection
of the FLSA’s “Definitions” section that defines “Hours Worked”
as follows:
In determining for the purposes of sections
206 [establishing the minimum hourly wage]
and 207 [maximum amount of hours an employee
can work in a week] of this title the hours
for which an employee is employed, there
shall be excluded any time spent in changing
clothes or washing at the beginning or end of
each workday which was excluded from measured
working time during the week involved by the
express terms of or by custom or practice
under a bona fide collective-bargaining
agreement
applicable
to
the
particular
employee.
In other words, the time spent changing clothes is to be excluded
from the measured working time (for purposes of § 207 requiring
employers to pay employees overtime compensation for hours worked
in excess of 40 hours per week) if it has been excluded by the
express terms of, or by custom or practice under, a bona fide
collective-bargaining agreement applicable to the employee. The
FLSA, however, does not define “clothes” or “changing,” and
circuit courts are split over the definitions.
As will be discussed, HISD’s arguments regarding the
appropriate standard of proof for exclusions, as opposed to
exemptions, are in accord with the holdings in
Salazar v.
Butterball, LLC, 644 F.3d 1130 (10th Cir. 2011), cert. denied, 131
S. Ct. 73 (2010); Allen v. McWane, Inc. , 593 F.3d 449 (5 th Cir.
2010), cert. denied, 131 S. Ct. 73 (2010); Anderson v. Cagle’s,
Inc., 488 F.3d 945 (11th Cir. 2007), cert. denied, 553 U.S. 1093
(2008); and Turner v. City of Phila., 262 F.3d 222 (3d Cir. 2001).
24
See Allen v. McWane, Inc., 593 F.3d 449, 453 n.2 (5th
Cir. 2010), cert. denied, 131 S. Ct. 73 (2010).
-41-
Portal-to-Portal
Act,
Congress
was
concerned
that
broad
interpretations of the FLSA would “bring about financial ruin of
many employers and seriously impair the capital resources of many
others,”
resulting
in
“windfall
payments”
to
employees
and
“serious and adverse effects upon the revenues of Federal, State,
and Local governments.”
29 U.S.C. § 251.
According to HISD, the language of § 203(o) of the
Portal-to-Portal Act and that in the occasional or sporadic
exclusion of § 207(p)(2) are strikingly similar:
both permit
certain finite hours to be removed from the employer’s overtime
calculations based on the manner of “work” performed, not on the
classification of the employee’s job, and nonexempt employees are
still otherwise covered by the FLSA and entitled to earn overtime
for all hours over forty worked in the scope of their regular
employment.
Because Judge Miller relied on case law applying a
narrow construction to exemptions under § 213 of the FLSA and thus
incorrectly construed the occasional or sporadic exclusion, argues
HISD,
he
imposed
an
erroneously
high
burden
on
HISD.
In
Christopher v. SmithKline, 132 S. Ct. at 2170-74 & n.21, the
Supreme Court held that the DOL’s interpretation of an ambiguous
regulation and the long standing practice of treating “outside
salesmen” as exempt should not be given deference, and that once
a
court finds a provision is ambiguous, it must ask whether the
interpretation is “plainly erroneous or inconsistent with the
regulation”
and
whether
the
interpretation
“reflect[s]
agency’s fair and considered judgment on the matter.”
at 2166.
the
132 S. Ct.
Narrow construction of a provision against an employer
-42-
applies only to exemptions under the FLSA, not to broad statutory
definitions, such as that of “sale”.
132 S. Ct. at 2172 n.21.
In sum, HISD contends that the standard of narrow
construction
against
the
employer
is
inapplicable
“occasional or sporadic” exclusion of § 207(p)(2)
reasons:
to
the
for five
(1) the occasional or sporadic exclusion is not an
exemption; (2) the public policy underlying that standard does not
apply because the exclusion does not remove employees from the
FLSA’s protections; (3) the occasional or sporadic exclusion is
analogous to the exclusions under the Portal-to-Portal Act and §
203(o), which are not narrowly construed; (4) the intent of
Congress was to protect employers from unexpected and extreme
liabilities and to prevent employees from receiving windfalls by
excluding certain finite hours from overtime calculations warrants
a lesser burden of proof for the occasional or sporadic exclusion;
and (5) the Supreme Court has limited narrow construction to
exemptions.
Plaintiff
Blair’s
opposition
to
HISD’s
motion
for
reconsideration (#26 in H-13-2628) argues that HISD mislabels the
occasional and sporadic exemption as an exclusion.
Furthermore,
regardless of whether the narrow construction standard applies,
Blair insists that HISD has “failed to meets its burden to prove
an affirmative defense beyond doubt,” so Judge Miller properly
denied its motion for summary judgment.
Blair asserts that the Portal-to-Portal Act and the
occasional or sporadic exemption are clearly not analogous.
The
Portal-to-Portal Act removes hours from any payment, while the
-43-
occasional or sporadic exemption exempts hours from overtime
calculations.
The exclusion in 29 U.S.C. § 203(o) of “any time
spent changing clothes or washing at the beginning or end of each
workday which was excluded from measured working time during the
week involved by the express terms of or by custom or practice
under a bona fide collective-bargaining agreement applicable to
the
particular
employee,”
was
traditionally
viewed
as
an
affirmative defense, requiring the defendant to establish that
hours do not fall within a normal workday, but recently cases have
shifted to the plaintiff the burden to demonstrate whether a
“custom or practice” exists.
Allen v. McWane, 593 F.3d at 458;
Anderson v. Cagle’s Inc., 488 F.3d 945.
The occasional or
sporadic exemption is statutorily identified as an exemption (29
C.F.R.
§
553.30
under
“Other
Exemptions”)
and
acts
as
an
affirmative defense or matter in avoidance, imposing the burden of
proof on HISD.
Blair claims that HISD fails to meet the burden of
demonstrating that the ancillary duties were occasional, sporadic
or substantially different and therefore Judge Miller properly
denied the summary judgment motion.
Furthermore, argues Blair, unlike hours excluded under
the Portal-to-Portal Act, the occasional or sporadic exemption
requires payment by the employer to the employee for hours worked
by the employee.
overtime pay.
The only issue is whether the hours require
For the occasional or sporadic exemption (an
affirmative defense)25 to apply and take the hours out of overtime
25
Blair insists exclusions under the FSLA are not
affirmative defenses.
-44-
in a given week, the defendant must demonstrate that it is a
public agency, that the employee volunteered for the duties, that
the duties are occasional or sporadic, and that the duties are
substantially different from the employer’s regular work.
In reply (#26 in H-13-2628), HISD contends that (1)
Blair provides no arguments supporting his conclusion that §
207(p)(2) is an “exemption,” not an exclusion analogous to the
Portal-to-Portal Act, (2) that Blair fails to show that his
ancillary work was performed in the same capacity as his regular
work, and (3) that Blair does not establish that Judge Miller
erred in determining that his ancillary duties were occasionally
or sporadically performed.
HISD emphasizes the following facts are undisputed (#26
at p.2):
HISD is a governmental entity that employed
Blair; Blair was a non-exempt HISD employee;
Blair voluntarily performed the ancillary
duties; the dates and times Blair performed
the ancillary duties; Blair’s regular job
duties
(custodial
and
groundskeeping
activities
performed
before
and
after
athletic events including: cleaning athletic
facilities and parking lots, and preparing
fields and locker rooms for athletic events);
Blair’s ancillary job duties (non-custodial
and non-groundskeeping activities performed
during athletic events: taking tickets,
operating a time clock, and guarding a door);
Blair was properly paid $13.73 per hour when
he performed regular job duties, and he was
properly paid for all overtime that he worked
relating to performing regular job duties;
and Blair was paid $10.50 per hour whenever
he performed ancillary job duties, and the
hours he performed ancillary work were
excluded from overtime wage calculations.
-45-
Since there are no disputed material facts, HISD asks Judge Miller
to make conclusions of law regarding the application of section
207(p)(2).26
Urging
that
it
has
more
than
what
Plaintiffs
characterize as a “scrap of authority” and that the law addressing
the exclusion versus exemption question supports HISD’s contention
that the occasional or sporadic exclusion is not an exemption and
should not be narrowly construed, HISD cites Allen v. McWane,
Inc., 593 F.3d at 458 (explaining that the narrow construction
against employers in an exemption analysis does not apply to
exclusions under § 203(o)), as Fifth Circuit authority for the
proposition that “the ‘exemptions’ the Supreme Court refers to as
affirmative
defenses
to
the
FLSA
all
‘relate
to
the
total
exclusion of a particular worker or workers from certain FLSA
protections,’ not ‘to the exclusion of only some activities from
FLSA.’” Id., quoting Adams v. United States, 471 F.3d 1321, 132526 (Fed. Cir. 2006).
See also Figas v. Horsehead Corp., Civ. a.
No. 06-1344, 2008 WL 4170043, at *7, 9 (W.D. Pa. Sept. 3, 2008).27
26
HISD points out that for purposes of the scope of its
motion for summary judgment, the Court has not yet been asked to
decide if HISD acted in good faith (relevant to Blair’s claim for
liquidated damages) or if it willfully violated the FLSA (relevant
to Blair’s claim that he is entitled to recover three years of
damages).
27
In Figas, in rejecting the plaintiffs’ attempt to view
§ 203(o) as an exemption requiring narrow construction against
employers, the district court opined, “An exemption which denies
FLSA protection altogether to a category of employees differs
meaningfully from an exclusion which merely operates to define the
terms and scope of the statutory protection provided to those who
do enjoy such protection.” 2008 WL 4170043 at *7 (emphasis in
original). The court summarized, Id. at *9,
Not only do the exemptions contained in § 213
(which deny FLSA protection to certain
-46-
Relying on Allen v. McWane, 593 F.3d at 458, as its
persuasive authority, HISD urges that § 207(p)(2) is an exclusion
because,
like
§203(o),
it
allows
the
exclusion
of
certain
activities from overtime payments rather than removing workers
from the coverage under the FLSA.
Therefore the Court should
conclude that Judge Miller applied the wrong burden in his
analysis of the occasional or sporadic exclusion.
HISD points out the similarities of language (underlined
portions below) in § 203(o) and § 207(p)(2) to support its analogy
argument.
Section 203(o) states,
In determining for the purposes of section [
. . . ] 207 of this title the hours for which
an employee is employed, there shall be
excluded any time spent in changing clothes
or washing at the beginning or end of each
workday which was excluded from measured
working time during the week involved by the
express terms of or by custom or practice
under a bona fide collective-bargaining
agreement applicable to the particular
employee.
categories of employees) operate differently
than § 203(o)(which potentially decreases the
amount of time for which a concededly
covered employee is entitled to payment), but
the purpose that they serve differs from that
served by § 203(o) as well. Section 213
exempts specific categories of employees from
specific FLSA substantive provisions in order
to limit the reach of those provisions even
where no collective-bargaining agreement
exists. 29 U.S.C. § 213. 29 U.S.C. § 213.
Section 203(o), on the other hand, evinces a
legislative determination that, under certain
circumstances, deference to the terms of a
bona fide collective-bargaining agreement may
be more in keeping with the FLSA’s spirit of
protecting the interests of covered workers
than would be strict, unqualified adherence
to a loose-fitting, imprecise statutory
mandate.
-47-
Section 207(p)(2) reads,
If an employee of a public agency which is a
State, political subdivision of a State, or
an interstate governmental agency undertakes,
on an occasional or sporadic basis . . .
employment . . . in a different capacity from
any capacity in which the employee is
regularly employed, the hours such employee
was employed in performing the different
employment shall be excluded by the public
agency in the calculation of the hours for
which the employee is entitled to overtime
compensation under this section.
HISD further observes that the Portal-to-Portal Act directly
references § 207, in which the occasional or sporadic exclusion is
found, and relates to calculating hours worked to determine if
particular hours should be paid at an overtime rate.
Moreover,
neither provision refers to § 213 or exemptions.
Nor, argues HISD, has the DOL interpreted § 207(p)(2) in
any way that would help this Court decide if the subsection is an
exclusion or an exemption, so there is no deference issue here.
29 C.F.R. § 533.30 merely addresses how to identify when work is
occasional or sporadic and when it is different from regular work.
Although Blair attempts to convince Judge Miller to
limit his examination on the exemption versus exclusion question
to titles in the regulations (i.e., that § 207(p)(2) is under a
section titled “other exemptions”), HISD contends that the plain
language of the FLSA undermines Blair’s argument.
Congress
intentionally chose not to include § 207(p)(2) in its “Exemptions”
section, § 213.
Nor is the occasional or sporadic exclusion
identified as an exemption in the United States Code. Nor does it
serve the same function as an exemption.
-48-
A comparison of the
language §§ 203(o) and 207(p)(2) to that of § 213 reveals that §
207(p)(2) was not intended to be an exemption: while § 213 states
that the FLSA’s requirements “shall not apply with respect to”
various types of specifically named types of exempt employees, §§
203(o) and 207(p)(2) exclude certain hours of work from counting
toward overtime calculations for non-exempt employees.
HISD further urges that the DOL “misguidedly employs
‘exemption’ and ‘exclusion’ throughout its interpretations.”
at p. 7.
#26
While the occasional or sporadic exclusion is found
under the section titled “other exemptions,” the DOL states “hours
worked are to be excluded from overtime calculations under §
207(p)(2).
29 C.F.R. § 553.30(b)(1).
The DOL also put 29 C.F.R.
§ 553.31 within the “other exemptions” sections, although §553.31
relates to 29 U.S.C. § 207(p)(3), which the DOL characterizes as
an exception rather than as an exemption.
DOL Wage and Hour Op.
Letter, FLSA2008-2, 2008 DOLWH Lexis 7 (Mar. 17, 2008)(“Because
section 7(p)(3) is a exception to the overtime, but not minimum
wage, provision of the FLSA, it does not exempt an employer from
its requirement to pay minimum wagers . . . under the [FLSA}.”).
The DOL also linked the label of “exemptions” to 29 C.F.R. §
785.9, as it applies to § 703(o).
as an “exclusion.”
The DOL also refers to § 703(o)
These inconsistencies show that the DOL has
not made an interpretation, no less one deserving deference, that
§207(p)(2) is an exemption.
Regardless of what it is termed, it is well established
that the plaintiff bears the burden of proving that he was not
properly paid for the work he performed.
-49-
Harvill v. Westward
Communications, LLC, 433 F.3d 428, 441 (5th Cir. 2005).28 Therefore
Judge Miller erred in narrowly construing § 207(p)(2) against HISD
and placing the burden of proof on it.
HISD maintains it is
entitled to summary judgment because Blair failed to satisfy his
burden to prove that HISD did not comply with § 207(p)(2).
Allen
v. McWane, Inc., 593 F.3d at 459 (holding that § 203(o) is not an
affirmative defense); Hopkins v. Tex. Mast Climbers, LLC, No. Civ.
A. H-04-1884, 2004 WL 3435033, at *7 (S.D. Tex. Dec. 14, 2005)(the
fluctuating workweek method of calculation what overtime is owed
to an employee under 29 C.F.R. § 778.114 is neither a defense nor
an exemption to the FLSA, and the employee bears the burden of
proving compliance with the fluctuation workweek method), citing
Samson v. Apollo Res., Inc., 242 F.3d 629, 636 (5th Cir. 2001).
28
In Harvill, id., the Fifth Circuit quotes from
Anderson v. Mount Clemens Pottery Co., 328 U.S. 680, 687-88
(1946), superseded by statute as stated in IBP, Inc. v. Alvarez,
546 U.S. 21 (2005), in finding that where an employee sues for
unpaid overtime compensation “where the employer’s records are
inaccurate or inadequate . . . an employee meets his burden of
proof”
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 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. If the
employer fails to produce such evidence, the
court may then award damages to the employee
even
though
the
result
may
only
be
approximate.
-50-
Blair’s contention that his ancillary duties and his
regular job duties were not substantially different is based on
his simplistic, illogical argument that because the job duty
classification numbers are in close sequence, the duties are
similar.
The regulation indicates that for job duties to be in a
“different capacity” they “must not fall within the same general
occupational category.”
29 C.F.R. §553.30(c)(1).
As an example
of jobs falling in the same general occupational category, and
thus worked in the same capacity, the regulation cites an employee
whose primary job is playground maintenance and whose auxiliary
job is cleaning a recreation area.
Id. at (c)(3).
These duties
are within the same job family, “Building and Grounds Cleaning and
Maintenance,” in the O*NET Classifications. See #26 in H-13-2628,
Ex. 1.
The regulation’s example of jobs falling in different
occupational categories is an employee working primarily as a
bookkeeper
and
performing
basketball games.
different
job
Administrative
auxiliary
work
29 C.F.R. § 553.30(c)(4).
families
Support”
of
for
the
O*NET,
bookkeepers
as
a
referee
at
These duties are in
i.e.,
and
“Office
“Arts,
and
Design,
Entertainment, Sports, and Media” for referees. #26 in H-13-2628,
Ex. 2.
Blair ignores these job families and the distinctive job
duties identified in each category.
HISD further insists that the Court correctly evaluated
the entirety of Blair’s ancillary work in correctly determining
that it was performed occasionally or sporadically.
Judge Miller
noted multiple and separate lengthy gaps in his ancillary work
that were not just for summer break.
-51-
Accordingly HISD asks Judge Miller to grant its motion
for reconsideration, withdraw his issued memorandum and order, and
grant HISD’s motion for summary judgment.
Judge Gilmore’s Order in Franklin v. HISD, H-13-320729
The facts in Franklin are similar to those in here in
Ford.
HISD hired Cynthia Franklin in August 1985 as an equipment
manager for its Athletic Department at the Butler Sports Complex,
containing various arenas for football, basketball, track and
field, volleyball, baseball, and
tournaments.
Her regular work
tasks, performed Monday through Friday from 7:00 a.m. to 3:00
p.m., were comprised of picking up equipment from the Delmar
Sports Complex, notifying coaches of newly ordered equipment and
delivering it to them, issuing paperwork for the equipment,
retrieving and delivering sports equipment from and to other HISD
stadium complexes and school campuses, separating and cataloging
sports equipment, cleaning and folding uniforms, cleaning the
dressing rooms and gym area after games, emptying trash, and
picking up litter.
Occasionally Franklin performed extra work, mainly in
the evenings and on weekends and outside of her usual 7:00 to 3:00
regular work schedule, for HISD athletic events, which involved
taking tickets at the gate, guarding doors, keeping score and time
at the various events, working the concession stand, and making
copies of game video footage.
Her pay for the extra work was at
a different hourly rate than her pay for her regular job.
29
She
Submitted as Exhibit 1 to #28 in the instant case, H-
13-2598.
-52-
claims that she performed the extra work frequently and regularly
throughout various sports seasons in essentially every month of
the year because HISD operated its sports complex continually.
One time, from October 29, 2010 through September 8, 2012, she
asserts that she worked a total of 409.95 hours in 100 days.
HISD
argued that her ancillary work was infrequent and irregular,
Franklin filed suit against HISD on October 31, 2013 to
recover overtime wages for her extra work exceeding forty hours
per week. HISD moved for summary judgment on the grounds that her
ancillary work falls within the “occasional or sporadic” exclusion
to overtime pay wage protection under the FLSA.
The parties
agreed that HISD is a public agency and that Franklin’s ancillary
work was voluntary and part-time.
The only issues where whether
her work was occasional and sporadic and whether her auxiliary
work was performed in a different capacity from her regular work.
Judge Gilmore, like Judge Miller, observed that there is
no
clear
standard
for
analyzing
whether
ancillary
part-time
employment is occasional or sporadic. Nevertheless she found that
Franklin’s employment record, which showed that her extra work
occurred at least two days a week for at least eight hours a week
in every month from October 2010 to September 2012, except for
Thanksgiving and winter holidays, and in every month of the year
except November and December of 2011 through 2012, and that the
majority of the ancillary work was on a weekly basis rather than
on an irregular or infrequent basis, undermined HISD’s claim that
the ancillary work was irregular and infrequent.
Therefore Judge
Gilmore concluded as a matter of law that Franklin’s ancillary
-53-
work was not exempt from the FLSA because it was not occasional or
sporadic.
“[I]n an abundance of caution and due to the dearth of
existing jurisprudence on the issue,” Judge Gilmore also addressed
whether Franklin’s auxiliary work was performed in a different
capacity from her regular work duties, i.e., whether it fell
“outside the same general occupational category” (§ 553.30(c)(3)).
Like Judge Miller, Judge Gilmore found that the examples provided
by the regulation gave little guidance.
Furthermore, Franklin,
herself, argued that her part-time employment was not in a
different capacity because her duties in her ancillary work
overlapped with the same cleaning duties that she performed during
her primary job. Applying the established rule that FLSA coverage
must be narrowly construed against the employer and viewing the
evidence in a light most favorable to Franklin, Judge Gilmore
stated that she could not find as a matter of law that Franklin’s
ancillary
work
sufficiently
(facilitating
similar
to
her
live
sporting
regular
work
events)
was
(handling
and
distributing sports equipment) to constitute work within the same
occupational
capacity.
Nevertheless
Judge
Gilmore
further
observed the “troubling” overlap of Franklin’s janitorial and
cleaning duties in her primary and ancillary work for HISD. Judge
Gilmore concluded that HISD failed to meet its burden of showing
that Franklin’s ancillary work was exempt from the FLSA under 29
U.S.C. § 207(p)(2) and denied HISD’s motion for summary judgment.
-54-
Court’s Decision
This Court addresses as the threshold question here
whether the “occasional or sporadic” provision, 29 U.S.C. §
207(p)(2), is an “exemption” to be narrowly construed against the
defendant
employer,
HISD,
affirmatively
showing
“plainly
unmistakably”30
and
that
who
its
would
bear
employees
exempt
from
the
Ford
the
burden
and
FLSA’s
Reid
of
are
overtime
provisions, or is it an “exclusion,” analogous to § 203(o), and
therefore not narrowly construed against HISD and on which Ford
and Reid bear the burden of proof that they performed work for
which they were not properly compensated in overtime pay.
The United States Supreme Court and all but one31 of the
appellate courts that have addressed § 203(o) have concluded that
it
is
not
employers.
an
“exemption”
to
be
narrowly
construed
against
After careful review of the law regarding it and the
reasoning of these courts, the Court examines whether § 207(p)(2)
should also be treated as an exclusion, and not as an exemption,
for the same reasons as § 203(o), resulting in the statute’s not
being construed narrowly against HISD nor HISD’s being required to
show that Ford and Reid plainly and unmistakably fit within an
30
Meza v. Intelligent Mexican Marketing, Inc., 720 F.3d
577, 581 (5th Cir. 2013)(“The employer must prove facts by a
preponderance of the evidence that show the exemption is ‘plainly
and unmistakably applicable.’”), citing Arnold v. Ben Kanowsky,
Inc., 361 U.S. 388, 392 (1960).
31
Alvarez v. IBP, Inc., 339 F.3d 894, 905 (9th Cir.
2003)(“FLSA exemptions [like § 203(o_] . . . are to be narrowly
construed against the employer seeking to assert them.”), aff’d,
546 U.S. 21 (2005). No other appellate courts have followed the
Ninth Circuit.
-55-
exemption from the overtime provisions, but instead with the
burden of proof being placed on Plaintiffs to prove that they were
not properly compensated with overtime pay for their auxiliary
work.
The United States Supreme Court in Sandifer, 134 S. Ct.
at 879 n.7, opined,
The exemptions from the Act generally reside
in § 213, which is entitled ‘Exemptions’ and
classifies certain kinds of workers as
uncovered by various provisions. Thus in
Christopher v. SmithKline Beecham Corp., . .
. 132 S. Ct. 2156, 2171-72 n.21 . . . (2012),
we declared the narrow-construction principle
inapplicable to a provision appearing in §
203, entitled ‘Definitions.’”).
In Christopher, id., the Supreme Court stated that the narrow
construction standard for exemptions established in Arnold v. Ben
Kanowsky, Inc., 361 U.S. at 392, “is inapposite where, as here, we
are interpreting a general definition that applies throughout the
FLSA.”
The Fifth Circuit has also rejected the argument that §
203(o) is an “exemption” under the FLSA because it was not
included under § 213, expressly labeled “Exemptions”; instead §
203 states it “is a list of definitions.”
Inc.,593
F.3d
at
458.
The
Fifth
Circuit
Allen v. McWane,
concluded
that
“subsection (o) is not an affirmative defense” with the burden of
poof on the defendant; instead plaintiffs bear the burden of
persuasion whether or not a custom or practice exists of including
or excluding the time changing or washing clothes from measured
working time under a bona fide collective-bargaining agreement.
Id., citing the Third Circuit’s opinion in Turner, 262 F.3d at
-56-
225-25.
The Fifth Circuit further noted that “the ‘exemptions’
the Supreme Court refers to as affirmative defenses to the FLSA
all ‘relate[] to the total exclusion of a particular worker or
workers from certain FLSA protections[,]’ not ‘to the exclusion of
only some activities from FLSA.’”
Id., citing Adams v. United
States, 471 F.3d 1321, 1325-26 (Fed. Cir. 2006).
This Court also examined the reasoning of the other
appellate courts in concluding why § 203(o) is not an affirmative
defense
and
an
“exemption,”
but
instead
an
“exclusion,”
to
determine whether these reasons would also apply to § 207(p)(2).
The following decisions concluded that § 203(o) is not an
exemption as originally defined under the FLSA: Turner v. City of
Phila., 262 F.3d 222, 224 (3d Cir. 2001)(“Section 203(o) . . .
provides a specific exclusion from the calculation of hours worked
for clothes and uniform change time”); Adams v. United States, 471
F.3d 1321, 1325-26 (Fed. Cir. 2006)(“[T]he Portal-to-Portal Act
does not create an “exemption” in the same sense as the Supreme
Court used in [Corning Glass Works v. Brennan, 417 U.S. 188, 19697 (1974)(‘the application of an exemption under the Fair Labor
Standards Act is a matter of affirmative defense on which the
government has the burden of proof’)], which “all related to ‘the
total exclusion of a particular worker or workers from certain
FLSA
protections”
but
not
to
“the
exclusion
of only some
activities from FLSA.”); Anderson v. Cagle’s, Inc., 488 F.3d 945,
957-58 (11th Cir.)(“Had Congress sought to bestow upon § 203(o) the
same status as the exemptions set forth in § 213, it could have
easily amended § 213"; the legislative history of the Portal-to-57-
Portal Act and the addition of what would become § 203(o),
“curtailing employee-protective interpretations of the FLSA,”
demonstrates that “construing § 203(o) narrowly against employers
as an FLSA ‘exemption’ contravenes not only basic tenets of
statutory construction but also the readily apparent intent of the
legislators who approved the amendments’s language;”“§ 203(o) is
not an exemption under the FLSA but is instead a definition that
limits the scope of the FLSA’s key minimum wage and maximum hour
provisions.”),32 cert. denied, 553 U.S. 1093 (2007); Franklin v.
Kellogg Company, 619 F.3d 604, 611-12 (6th Cir. 2010)(agreeing for
the reasons cited by the Fifth, Eleventh, Third and Federal
Circuits that Ҥ 203 is not an exemption and therefore not an
affirmative defense”); Salazar v. Butterball, LLC, 644 F.3d 1130,
1130,
1138-39
(10th
Cir.
2011)(Ҥ
203(o)
differs
from
the
exemptions in 29 U.S.C. § 213 in three important respects. First,
it
is
part
of
the
definition
of
hours
worked
and
is
not
specifically designated as an exemption. Second, § 203(o) removes
only particular discrete activities from the definition of hours
worked, whereas the § 213 exemptions remove entire classes of
32
The Eleventh Circuit noted that the Ninth Circuit in
Alvarez had cited the Fifth Circuit’s opinion in Mitchell v. Se
Carbon Paper Co., 228 F.2d 934, 937 (1955), which in dicta
referred to § 203(o) as an exemption. (Decisions of the Fifth
Circuit issued before Oct.1, 1981, were precedential for the
Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1209
(11th Cir. 1981(en banc).) The Eleventh Circuit explains that it
was addressing the issue of whether § 201(o) constituted an
exemption for the first time in Anderson, “we conclude that §
203(o) is not an exemption under the FLSA, but is instead a
definition that limits the scope of the FLSA’s key minimum wage
and maximum hour provisions.” 488 F.3d at 957.
-58-
employees from FLSA cover coverage. Employees who are potentially
affected by §203(o) are still entitled to the bulk of the FLSA’s
protections, whereas employees affected by an FLSA exemption are
entitled to no FLSA protections at all.
Third, § 203(o) does not
exactly remove discrete activities from FLSA coverage; it gives
employers and employees the option of removing those activities
from FLSA coverage through collective bargaining.”).
Obviously,
§
207(p)(2)
is
not
included
under
the
designated “Exemptions” in § 213, and Congress, if it chose, could
have amended § 213 to include it, but did not.
More persuasive is
the fact that it does not totally exclude all workers who perform
auxiliary work from all the protections of the FLSA, but instead
restricts pay for the hours in that auxiliary work only from
receipt of overtime compensation.
Moreover, the Court observes
that construing it as an exclusion rather than an exemption is
more in line with the trend under the Portal-to-Portal Act toward
protecting employers from excessive liability: as one scholar
wrote
about
¶203(o)
that
is
true
also
of
§
207(p)(2),
“motivating force” behind it is “employer friendly.”
the
Victor M.
Velarde, On the Construction of Section 203(o) of the FLSA:
Exclusion Without Exemption, 21 U. Miami Bus. L. Rev. 253. 273
(Summer 213).
Thus the Court finds very persuasive HISD’s
argument that § 207(p)(2) should not be construed as an exemption
and an affirmative defense narrowly construed against HISD, which
therefore should also not bear the burden of proving that Ford and
Reid
plainly and unmistakably fit within an exemption from the
overtime provisions.
-59-
Nevertheless, because no court, no less higher court,
has yet addressed the issue and come to this conclusion, the Court
alternatively examines whether HISD has met its burden under the
FLSA exemption standard.
Noting that Plaintiffs have not challenged the accuracy
of HISD payment records, the Court finds that HISD has clearly
shown through Ford’s and Reid’s payment records that each man in
his work as a stadium attendant performed work that was both
occasional
employees
and
of
sporadic.
HISD,
It
they
is
each
undisputed
performed
that
their
as
extra
public
work
voluntarily, part-time, at hours that were not covered by their
regular work, and for different rates than their regular work.
Plaintiffs’ attempt to blur the facts by arguing that the focus
should be on the job, which was available year round, rather than
what the records show was each individual Plaintiff’s
(and other
employees’) irregular, scattered performances of such a job, is,
as HISD argues, unpersuasive, illogical, and contrary to the
definitions in the FLSA.
Moreover, Plaintiffs’ auxiliary work
clearly falls within 29 C.F.R. §§ 553.30(b)(3), which expressly
states that such work at sports events in public stadiums by
regular employees of local governmental agencies taking ti ckets
and providing security “may be considered occasional or sporadic
. . . even where the need can be anticipated because it recurs
seasonally.”
The
remaining
question
is
whether
Ford
and
Reid
performed their regular jobs in a “different capacity” than their
auxiliary jobs, i.e., whether it fell within the same or different
-60-
occupational categories, regarding which Judges Miller and Gilmore
denied summary judgment to HISD in their cases.
Unlike Franklin
in Judge Gilmore’s case, Ford and Reid have alleged completely
different types of tasks for their regular, outdoor groundskeeping work and their auxiliary, indoor, sports games-related
activities, performed at distinctly different times. Here, unlike
in the cases before Judge Miller and Judge Gilmore, HISD has not
simply
relied
on
factual
allegations
summarized
above
distinguishing their regular work from their auxiliary work, nor
on the examples provided in the regulation, which do not fit here
sufficiently to rule on the issue as a matter of law.
But HISD
has applied the occupational categories defined in the Dictionary
of Occupational Titles and in its replacement, the newer, updated
O*NET, to demonstrate in detail that the two types of work of each
Plaintiff were performed in performed different capacities.
See
pp. 25-27 (and the referenced authority and evidence submitted) of
this Opinion and Order.
examination
of
these
The Court agrees with HISD, and an
two
sources
clearly
demonstrates,
that
Plaintiffs’ argument that because the classification numbers are
near each other the job families are related or that the larger
the
separation
between
the
classification
numbers
in
the
Dictionary of Occupational Titles, the greater the disparity in
jobs, while the closer the numbers, the more similar the job
duties, are frivolous and without foundation.
this
Opinion
and
Order.
controverted this evidence.
Significantly
See pages 32-33 of
Plaintiffs
have
not
Nor have they presented any evidence
to rebut HISD’s O*NET evidence of different capacities.
-61-
Accordingly, the Court finds that Plaintiffs have failed
to satisfy their burden to present any evidence to raise a genuine
issue of material fact regarding Ford’s and Reid’s occasional and
sporadic performances of their auxiliary work or regarding their
performance of their regular job and their auxiliary work in
different capacities, such that any reasonable jury could return
a verdict for them.
Anderson, 477 U.S. at 248.
HISD has
presented evidence uncontroverted by any significant probative
evidence
from
Ford
and
Reid
that
Plaintiffs
plainly
and
unmistakably fit within 29 U.S.C. § 207(p)(2) and are not entitled
to overtime pay for their auxiliary work.
ORDERS
GRANTED.
that
HISD’s
motion
for
Therefore the Court
summary
judgment
is
Final judgment will issue by separate order.
SIGNED at Houston, Texas, this
18th
day of
March ,
2015.
___________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE
-62-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?