Escribano et al v. Travis County, Texas et al
Filing
48
ORDER GRANTING IN PART AND DENYING IN PART Defendants' 28 Motion for Judgment on the Pleadings. Plaintiffs' state law claim is DISMISSED, but their FLSA and § 1983 claims remain. ORDER DENYING Defendants' 28 Motion for Summary Judgment. ORDER DENYING Plaintiffs' 27 Motion for Partial Summary Judgment. Signed by Judge Robert Pitman. (lt)
Case 1:16-cv-01196-RP Document 48 Filed 02/21/18 Page 1 of 20
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
BRYCE MILLER, ROBERT MILLS,
MICHAEL STRAWN, JASON
JEWERT, MICHAEL CANALES, and
BELINDA MANGUM,
§
§
§
§
§
§
§
§
§
§
§
§
§
§
Plaintiffs,
v.
TRAVIS COUNTY, TEXAS, and
SARAH ECKHARDT, in her official
capacity,
Defendants.
1:16-CV-1196-RP
ORDER
Before the Court are Plaintiffs’ partial motion for summary judgment,1 (Dkt. 27), and
Defendants’ motion for summary judgment, (Dkt. 28). After reviewing the record, briefing, and
relevant law, the Court issues the following order.
I. BACKGROUND
Plaintiffs, all lieutenants in the Travis County Sherriff’s Office, seek compensation for time
worked in excess of 40 hours per week. They claim they are entitled to this compensation based on
three grounds: (1) Travis County has declined to compensate them for overtime work in violation of
the Fair Labor Standards Act (“FLSA”); (2) Travis County is obligated by a Texas statute to pay
them overtime but has failed to do so; and (3) by not paying them overtime, Travis County has
unconstitutionally deprived them of the property right to overtime pay secured by the Texas statute.
Three of the plaintiffs were parties to a similar overtime case in this Court, which went to trial in
Three of the plaintiffs have dismissed their claims. (Stip. Dismissal, Dkt. 29). The six remaining plaintiffs in the case are
Lieutenants Bryce Miller, Robert Mills, Michael Strawn, Jason Jewert, Michael J. Canales, and Belinda Mangum.
1
1
Case 1:16-cv-01196-RP Document 48 Filed 02/21/18 Page 2 of 20
September 2016. (Cause No. 1:15-cv-331 [hereinafter “Escribano I”], Dkt. 60).2 The jury returned a
verdict for the plaintiffs on their FLSA claims, (id., Dkt. 71), and the Court partially granted the
defendants’ motion for judgment as a matter of law and partially granted the plaintiffs’ motion for a
new trial, (id., Dkt. 89). Subsequent post-trial briefing in that case is still pending.
In this case, Travis County and Sarah Eckhardt, in her capacity as Travis County Judge,
(“Defendants”) have moved for judgment on the pleadings regarding the constitutional and state law
claims. Both Plaintiffs and Defendants have moved for summary judgment on the FLSA claim.
II. LEGAL STANDARD
A. Summary Judgment
Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure “if
the movant shows that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute is “genuine” only if the evidence is
such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 254 (1986). “A fact issue is ‘material’ if its resolution could affect the outcome of
the action.” Poole v. City of Shreveport, 691 F.3d 624, 627 (5th Cir. 2012).
The party moving for summary judgment bears the initial burden of “informing the district
court of the basis for its motion, and identifying those portions of [the record] which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). “[T]he moving party may [also] meet its burden by simply pointing to an absence of
evidence to support the nonmoving party’s case.” Boudreaux v. Swift Transp. Co., 402 F.3d 536, 544
(5th Cir. 2005). The burden then shifts to the nonmoving party to establish the existence of a
genuine issue for trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585–87
Lieutenant Escribano, a plaintiff in the previous case and originally a plaintiff in this case, is no longer a party to this
case after settling his claims. (Dkt. 39). For ease of reference the Court will continue to refer to the previous case as
Escribano I.
2
2
Case 1:16-cv-01196-RP Document 48 Filed 02/21/18 Page 3 of 20
(1986); Wise v. E.I. Dupont de Nemours & Co., 58 F.3d 193, 195 (5th Cir. 1995). “After the nonmovant has been given the opportunity to raise a genuine factual issue, if no reasonable juror could
find for the non-movant, summary judgment will be granted.” Miss. River Basin Alliance v. Westphal,
230 F.3d 170, 174 (5th Cir. 2000). “Where a defendant moves for summary judgment on the basis of
an affirmative defense and, thus, bears the ultimate burden of persuasion, ‘evidence must be
adduced supporting each element of the defense and demonstrating the lack of any genuine issue of
material fact with regard thereto.’” Gellhaus v. Wal-Mart Stores, Inc., 769 F. Supp. 2d 1071, 1074 (E.D.
Tex. 2011) (quoting Terrebonne Parish Sch. Bd. v. Mobil Oil Corp., 310 F.3d 870, 877 (5th Cir. 2002)).
The parties may satisfy their respective burdens by tendering depositions, affidavits, and other
competent evidence. Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992). The Court views this
evidence in the light most favorable to the non-movant. Rosado v. Deters, 5 F.3d 119, 122 (5th Cir.
1993).
Cross-motions for summary judgment “must be considered separately, as each movant bears
the burden of establishing that no genuine issue of material fact exists and that it is entitled to
judgment as a matter of law.” Shaw Constructors v. ICF Kaiser Engineers, Inc., 395 F.3d 533, 538–39 (5th
Cir. 2004).
B. Rule 12(c)
“A motion for judgment on the pleadings under Rule 12(c) is subject to the same standard as
a motion to dismiss under Rule 12(b)(6).” Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008)
(citing Johnson v. Johnson, 385 F.3d 503, 529 (5th Cir. 2004)). Accordingly, the Court “must accept the
factual allegations in the pleadings as true,” but the “plaintiff must plead ‘enough facts to state a
claim to relief that is plausible on its face,” id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)).
3
Case 1:16-cv-01196-RP Document 48 Filed 02/21/18 Page 4 of 20
III. MOTION FOR JUDGMENT ON THE PLEADINGS
Defendants have moved for judgment on the pleadings under Federal Rule of Civil
Procedure 12(c) with respect to Plaintiffs’ claims under Texas law, the United States Constitution,
Texas Local Government Code § 157.022, and certain specific forms of relief sought by Plaintiffs.
(Defs.’ Mot. J. on Pleadings and Mot. Summ. J., Dkt. 28, at 2).
A. Section 1983 Claim
Plaintiffs assert that Defendants’ failure to compensate Plaintiffs for overtime hours worked
deprives them of the right to overtime pay conferred upon them by Texas statute, which mandates
overtime pay for certain peace officers. TEX. LOC. GOVT CODE § 157.022(a) (“A peace officer
employed by a county with a population of more than one million may not be required to work
more hours during a calendar week than the number of hours in the normal work week of the
majority of other county employees.”); id. § 157.022(c) (“A peace officer who elects to work extra
hours during a calendar week shall be compensated on a basis consistent with overtime provisions
of the county personnel policy.”). Plaintiffs contend they have a property interest in this guarantee
of overtime compensation and that Defendants have violated the Fourteenth Amendment by
depriving Plaintiffs of that property without due process. U.S. CONST. amend. XIV, § 1. Plaintiffs
have accordingly brought a claim pursuant to 42 U.S. § 1983. (Pls.’ Third Compl., Dkt. 18, ¶ 21).
Defendants counter that this claim is precluded, citing cases holding that § 1983 claims based
on FLSA violations are barred. Defendants cite a Fourth Circuit decision and an opinion by another
district court in this circuit declaring § 1983 unavailable to plaintiffs bringing claims based on FLSA
violations. See Kendall v. City of Chesapeake, Va., 174 F.3d 437, 443 (4th Cir. 1999) (“Congress has
evinced a clear intent to preclude the use of § 1983 for the protection of overtime compensation
rights secured by the FLSA.”); Perez v. City of New Orleans, 173 F. Supp. 3d 337, 349 (E.D. La. 2016)
(dismissing a § 1983 claim on the grounds that the FLSA provides the exclusive remedy under
4
Case 1:16-cv-01196-RP Document 48 Filed 02/21/18 Page 5 of 20
federal law for bringing claims related to overtime pay violations). The two cases reason that
Congress intended to make the FLSA’s remedial scheme the exclusive means of pursuing a lawsuit
alleging an FLSA violation, thereby implicitly barring a § 1983 cause of action for plaintiffs deprived
of rights granted by the FLSA.
However, these cases have no bearing on Plaintiffs’ § 1983 claim. Plaintiffs maintain that
their § 1983 claim stems from a property interest independently created by state law; they do not
allege that claim depends upon an underlying FLSA violation. Plaintiffs claim a property interest in
the right to receive overtime compensation enumerated in the statute and allege that Defendants
have unconstitutionally deprived them of that interest. (Pls.’ Resp., Dkt. 31, at 17). The rationale
underlying Kendall does not apply to this claim. Section 1983 provides a federal right of action to
those who “allege the violation of a right preserved by another federal law or by the Constitution.”
Kendall, 174 F.3d at 440 (citing Baker v. McCollan, 443 U.S. 137, 140, 144 n.3 (1979)). If the right
violated is secured by a federal statute, a person “can bring an action pursuant to § 1983 only if
Congress has not foreclosed recourse to that statute.” Id. The Kendall court found that the FLSA’s
remedial scheme precluded a § 1983 remedy based on a violation of FLSA. Id. at 443. However,
neither Kendall nor Perez held that the FLSA precluded a § 1983 claim based on a right secured by the
Constitution itself. Those cases do not bar a § 1983 property right claim merely because it is related
to the same subject matter—overtime compensation—as the FLSA. The plaintiffs in those cases did
not bring a § 1983 claim that alleged the deprivation of a property interest granted by the state, as
Plaintiffs do here.
“The hallmark of property, the Court has emphasized, is an individual entitlement grounded
in state law, which cannot be removed except ‘for cause.’” Logan v. Zimmerman Brush Co., 455 U.S.
422, 430 (1982) (quoting Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 11–12 (1978)).
Although the types of interests constitutionally protected as property “are varied and, often as not,
5
Case 1:16-cv-01196-RP Document 48 Filed 02/21/18 Page 6 of 20
intangible,” id., the property interest in money claimed by Plaintiffs here falls on the tangible end of
the spectrum. If a state statute does secure a right to overtime compensation, and Defendants have
deprived Plaintiffs of that right without due process, then Plaintiffs may have a valid § 1983 claim.
B. Texas Local Government Code Section 157.022
As discussed above, Section 157.022 mandates overtime pay for certain peace officers. It
does not, however, provide an express remedy for peace officers who are not paid accordingly. TEX.
LOC. GOVT CODE § 157.022. Although this statute may provide the source of a valid § 1983 claim
for deprivation of a property right, Plaintiffs have not shown that Texas law provides a private cause
of action for a violation of this statute. Plaintiffs’ suggestion that Karr v. City of Beaumont supports
their position misapprehends the case. Plaintiffs assert that the Karr court “granted summary
judgment to police officers of the City of Beaumont based upon claims that they were entitled to
overtime for work over 40 hours in a week pursuant to Texas Local Government Code § 142.005.”
(Pls.’ Resp., Dkt. 31, at 16). It is true that the court granted summary judgment to police officers.
But it was not because of Texas Local Government Code § 142.005. Rather, that provision
prevented the defendants from claiming a particular exemption to the FLSA—Section 207(k)—that
is not at issue in this case. The court’s reason for doing so was based on the FLSA itself, which
provides that the Section 207(k) exemption does not apply when a state law establishes a maximum
workweek lower than the maximum workweeks established by the FLSA. The court did not, as
Plaintiffs suggest, ground its finding for the plaintiffs on the government code provision, which was
only significant insofar as it rebutted an argument that is irrelevant in this case because Defendants
have not raised it. Additionally, as this Court explained in Escribano I, “Section 157.002 of the Local
Government Code does not create a private right of action.” (Escribano I, Dkt. 51, at 4). Plaintiffs’
state law claim cannot move forward; Defendants’ motion for judgment on the pleadings is
therefore granted with respect to this claim.
6
Case 1:16-cv-01196-RP Document 48 Filed 02/21/18 Page 7 of 20
C. Forms of Relief
Because Defendants contend that the FLSA is the only viable cause of action for Plaintiffs,
they ask the Court to order that only those remedies countenanced by the FLSA are available.
However, as noted above, Plaintiffs’ § 1983 claim survives along with their FLSA claim, so forms of
relief associated with both causes of action may be available. However, it is true that, as discussed
above, the state law claim has been dismissed and therefore cannot be the source of any form of
relief, including declaratory relief and attorney’s fees.
III. FLSA
Defendants and Plaintiffs have both moved for summary judgment on Plaintiffs’ FLSA
claims. The FLSA requires overtime pay for employees who work more than 40 hours per week. 29
U.S.C. § 207(a)(1). The law provides for various exemptions from that baseline requirement. The
exemption pertinent here is the bona fide executive exemption. Id. § 213(a)(1) (stating that the
overtime requirements do not apply to “any employee employed in a bona fide executive . . .
capacity”). The bona fide executive exemption applies to employees (1) paid at least $455 per week
“on a salary basis” (2) whose “primary duty is management of the enterprise in which the employee
is employed or of a customarily recognized department or subdivision thereof,” (3) who
“customarily and regularly” direct “the work of two or more employees;” and (4) who have the
“authority to hire or fire other employees” or whose hiring and firing recommendations “are given
particular weight.” 29 C.F.R. § 541.100(a).3 An employer claiming a bona fide executive exemption
“bears the burden of proving that employees are exempt.” Dalheim v. KDFT-TV, 918 F.2d 1220,
1224 (5th Cir. 1990).
The Department of Labor issued an amendment to the rule in 2016 that was scheduled to take effect on December 1,
2016. 81 Fed. Reg. 32,391 (May 23, 2016). That amendment was halted by a preliminary injunction issued on November
22, 2016. Nevada v. U.S. Dep’t of Labor, 218 F. Supp. 3d 520, 534 (E.D. Tex. 2016). The court in that case has since issued
a permanent injunction. Nevada v. U.S. Dep’t of Labor, 275 F. Supp. 3d 795 (E.D. Tex. 2017). All references to the
regulation in this order will be to its form as it existed prior to the amendments, which never took effect.
3
7
Case 1:16-cv-01196-RP Document 48 Filed 02/21/18 Page 8 of 20
The regulations promulgated by the Department of Labor have clarified that the bona fide
executive exemption does not apply to people including “police officers, detectives, deputy sheriffs,
state troopers, highway patrol officers, investigators, inspectors, . . . and similar employees” who
“perform such work as . . . preventing or detecting crimes” and “conducting investigations or
inspections for violations of law” or “other similar work.” 29 C.F.R. § 541.3(b)(1). These types of
employees do not fall within the ambit of the bona fide executive exemption “because their primary
duty is not management of the enterprise in which the employee is employed . . . as required under
§ 541.100.” Id. § 541.3(b)(2). In other words, they do not meet the second factor of the four-part
bona fide executive employee exemption. By way of example, the regulation states that a police
officer “whose primary duty is to investigate crimes . . . is not exempt . . . merely because” the
officer “also directs the work of other employees in the conduct of an investigation or fighting a
fire.” Id. This clarification of the bona fide executive exemption’s application to certain types of
employees has, somewhat misleadingly, been called the “first responder” regulation. It applies to a
broad range of types of work, including paramedics and emergency medical technicians, but it also
extends to activities such as law enforcement. Id. § 541.3(b)(1).
IV. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
The “employer bears the burden of proving that employees are exempt.” Dalheim v. KDFTTV, 918 F.2d 1220, 1224 (5th Cir. 1990). “Exemptions from the FLSA are construed narrowly
against the employer, who carries the burden of proof to establish the exemption.” Coberly v. Christus
Health, 829 F. Supp. 2d 521, 529 (N.D. Tex. 2011) (citing Cheatham v. Allstate Ins. Co., 465 F.3d 578,
584 (5th Cir. 2006)). If a party moving for summary judgment “bears the burden of proof at trial,
then its burden of production is greater.” WRIGHT & MILLER, FEDERAL PRACTICE & PROCEDURE
§ 2727.1 (4th ed. April 2017 Update); see also Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1264–65
(5th Cir. 1991) (“Where, as here, the moving party bears the burden of proof at trial, it must come
8
Case 1:16-cv-01196-RP Document 48 Filed 02/21/18 Page 9 of 20
forward with evidence which would ‘entitle it to a directed verdict if the evidence went
uncontroverted at trial.’”) (citation and quotation marks omitted). To meet their summary judgment
burden, then, Defendants must produce sufficient evidence to be entitled to judgment with respect
to every bona fide executive factor, if the evidence were uncontroverted at trial. Cf. Bayle v. Allstate
Ins. Co., 615 F.3d 350, 360 (5th Cir. 2010) (explaining that because the party moving for summary
judgment would have the burden of proof at trial, it “had the burden of producing evidence in
support of its motion to establish that there existed no issue of material fact regarding” the defense).
Defendants have not met that burden here; their motion for summary judgment must therefore be
denied.
A. Salary Basis
Defendants have not met their burden with respect to whether Plaintiffs are paid on a
“salary basis,” as a plaintiff must be to fall under the bona fide executive exemption. 29 C.F.R.
§ 541.100(a)(1). Defendants point solely to an affidavit from Kate Kearney, the manager of the
County Sherriff’s Office human resources department, stating that Plaintiffs are “paid more than
$100,000 a year on a salary basis,” 4 (Kearney Aff., Dkt. 28-4, ¶ 3; see also Defs.’ Mot. Summ. J., Dkt.
28, at 6).5 Plaintiffs counter that the Kearney affidavit is merely a legal conclusion. The Court agrees
and declines to find, at this point, that Defendants have met their initial burden to produce sufficient
evidence that Plaintiffs are paid in a manner that meets the definition of “salary basis.” An employee
is paid on a salary basis if “the employee regularly receives each pay period on a weekly, or less
frequent basis, a predetermined amount constituting all or part of the employee’s compensation,
$100,000 per year comes out to just over $1,900 per week, which is well over the requisite $455 per week laid out in the
regulation.
5 Plaintiffs object to this portion of the Kearney affidavit on the ground that it constitutes “an unadorned factual and
legal conclusion without any additional allegations to support it.” (Dkt. 33, at 1). This assertion is more properly
characterized as an argument that the statement is insufficient to support Defendants’ summary judgment burden than
as an evidentiary objection. The Court addresses the sufficiency in the body of the order, but will note here that the
statement does not have any apparent evidentiary problems. As the manager of human resources for the Sheriff’s Office,
it is likely that Kearney has personal knowledge of the manner in which Plaintiffs are paid. (Defs.’ Resp. Obj., Dkt. 36, at
1–2).
4
9
Case 1:16-cv-01196-RP Document 48 Filed 02/21/18 Page 10 of 20
which amount is not subject to reduction because of variations in the quality or quantity of the work
performed.” 29 C.F.R. § 541.602(a). The only evidence put forward by Defendants is a conclusory
statement from Kate Kearney that Plaintiffs are paid on a salary basis. Although Kearney, as
manager of the human resources department, is in a good position to possess personal knowledge of
how Plaintiffs are paid, her statement that they are paid “on a salary basis” is not sufficient to show
conclusively that the way in which Plaintiffs are paid meets the rule’s definition of “salary basis.”
The statement does not elaborate upon the manner of payment of Plaintiffs, and it does not
elucidate whether the pay is “not subject to reduction.” Id. An exempt employee “must receive the
full salary for any week in which the employee performs any work without regard to the number of
days or hours work.” Id. The Supreme Court has clarified that the “subject to reduction”
circumstance entails “an actual practice of making such deductions or an employment policy that
creates a ‘significant likelihood’ of such deductions.” Auer v. Robbins, 519 U.S. 452, 461 (1997).
Defendants have produced no evidence of whether there is such a practice.
Plaintiffs point to their own affidavits, which Plaintiffs say, without explanation, establish
that they are not paid on a salary basis. (Pls.’ Resp., Dkt. 31, at 2 (“Moreover, as set forth in the
attached affidavits, each [of] the Lieutenants are not paid on a salary basis.”)). Plaintiffs’ affidavits, in
themselves, do not support this conclusion. They each read: “Like all lieutenants, I am not paid on a
salary basis. For instance . . . if I worked less than forty hours a week, even if I completed all
necessary work, I would be suspended without pay or terminated.” (Mills Aff., Dkt. 31-1; Strawn
Aff., Dkt. 31-2, at 2; Canales Aff., Dkt. 31-3, at 2; Mangum Aff., Dkt. 31-4, at 2; Jewert Aff., Dkt.
31-5, at 2).6 However, because Defendants failed to meet their initial summary judgment burden,
Plaintiffs’ failure to produce evidence that they are not paid on a salary basis is irrelevant here.
Defendants object to the Canales affidavit, (Dkt. 35), asserting that it is not based on personal knowledge. The Court
does not rely on the affidavit in this order and therefore declines to rule on the objection.
6
10
Case 1:16-cv-01196-RP Document 48 Filed 02/21/18 Page 11 of 20
Defendants also point to a number of other arguments for the first time in their reply brief,
including: (1) the stipulation of the plaintiffs in Escribano I that they were not paid less than $455 a
week; (2) the absence of a contention in this case that Plaintiffs are paid differently than the
plaintiffs in Escribano I were; and (3) the fact that the Court found that the plaintiffs in Escribano I
were paid on a salary basis as a matter of law. (Defs.’ Reply, Dkt. 37, at 3–4). The Court need not
consider an argument raised for the first time in Defendants’ reply brief in support of their motion
for summary judgment, Weber v. Merrill Lynch, 455 F. Supp. 2d 545, 555 (N.D. Tex. 2006) (“[T]he
court can decline to consider an argument raised for the first time in a reply brief.”), and doing so
could run the risk of prejudicing Plaintiffs, McDaniel v. Miss. Baptist Med. Ctr., 869 F. Supp. 445, 453
(S.D. Miss. 1994) (“In the interest of fairness, Defendant should not be allowed to raise new
grounds for the first time in its rebuttal to which Plaintiff will not have the opportunity to provide
an adequate response.”).
Moreover, none of the new arguments raised is persuasive. First, three of the plaintiffs in
this case were not parties in Escribano I. Second, the stipulations in Escribano I explicitly stated that
they were agreed to only for the purposes of that case. (Escribano I Joint Stipulation of Facts, Dkt.
28-6 (“[T]he below-listed statements of fact are true and correct for all purpose[s] in this lawsuit.”).
Any stipulations made there that have not been made here cannot be relied upon. Similarly, the
Court’s finding that the Escribano I plaintiffs were paid on a salary basis as a matter of law was based
on evidence presented at trial. Without explicitly making an argument about issue preclusion (which
they have not done),7 Defendants cannot use that finding to bind Plaintiffs here. Defendants can
Nor does it appear that issue preclusion would apply here. Issue preclusion arises when “an issue of fact or law is
actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the
determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.”
RESTATEMENT (SECOND) OF JUDGMENTS § 27 (1982); see also B&B Hardware v. Hargis Industries, Inc., 135 S. Ct. 1303
(2015) (noting that the Supreme Court “regularly turns to the Restatement (Second) of Judgments for a statement of the
ordinary elements of issue preclusion” because issue preclusion “can be challenging to implement”). One immediately
discernible problem with an issue preclusion argument here is that three of the plaintiffs here were not parties to the
previous litigation; Defendants have made no argument about the applicability of an exception to that rule.
7
11
Case 1:16-cv-01196-RP Document 48 Filed 02/21/18 Page 12 of 20
rely only on evidence they have produced in this case. Fed. R. Civ. P. 56(c)(1)(A) (requiring citation
to “particular parts of materials in the record” to establish that a fact cannot be disputed). Therefore,
they are not entitled to summary judgment on this issue.
B. Directing Work of Two or More Employees
A bona fide executive employee must also “customarily and regularly [direct] the work of
two or more other employees.” 29 C.F.R. § 541.100(a)(3). The only evidence pointed to by
Defendants to support this element of the exemption is a stipulation from Escribano I. (Defs.’ Mot.
Summ. J., Dkt. 28, at 6–7; Stipulations from Escribano I, Dkt. 28-6, ¶ 9). As explained above, supra
Part IV.A., this stipulation was made for the purposes of that case only. Because Defendants have
not put forth any additional or independent evidence in support of this element of their affirmative
defense, they are not entitled to summary judgment as to this portion of the bona fide executive
exemption.
C. Authority to Hire, Fire, or Give Recommendations with Particular Weight
The bona fide executive exemption applies only to an employee who “has the authority to
hire or fire other employees or whose suggestions and recommendations as to the hiring, firing,
advancement, promotion or any other change of status of other employees are given particular
weight.” 29 C.F.R. § 541.100(a)(4). Defendants’ only assertion in support of this factor, provided in
their summary judgment brief, is a simple restatement of the standard with a general citation to an
affidavit. They provide no explanation for how the affidavit supports their assertion. (Defs.’ Mot.
Summ. J., Dkt. 28, ¶ 12 (restating the regulation’s fourth element and following it only with a
citation to “Ex. 5, William Poole Affidavit”)). A review of the affidavit reveals no mentions of
authority to either hire or fire. (Poole Aff., Dkt. 28-7). The closest the affidavit comes is to state that
Lieutenant Strawn (it does not mention any of the other five plaintiffs) has the authority to
“recommend to the Captain” disciplinary actions, including “written reprimand, suspension or even
12
Case 1:16-cv-01196-RP Document 48 Filed 02/21/18 Page 13 of 20
termination.” (Id. at 2). The mere fact that Plaintiffs can make recommendations is insufficient to
demonstrate as a matter of law that Plaintiffs’ recommendations as to changes in employment status
“are given particular weight.” 29 C.F.R. § 541.100. Defendants have therefore not demonstrated
that they are entitled to summary judgment on this issue.8
D. Standing—Lieutenant Canales
In the midst of their summary judgment brief, Defendants offhandedly mention that they
think Lieutenant Canales lacks standing to bring any claims. (Defs.’ Mot. Summ. J., Dkt. 28, ¶ 16).
However, the evidence Defendants point to is insufficient to establish that Lieutenant Canales lacks
standing. Defendants claim that a statement made by Lieutenant Canales demonstrates that he “did
not work any overtime during the Relevant Period.” (Id.). Although his statement does suggest that
it is his general practice to work no more than 40 hours per week, he does not say that he never
worked more than 40 hours per week during the relevant period. (Canales Dep., Dkt. 28-8, 79:2–3
(“Q: Do you work ten hours four days a week? A: Correct.”); id. at 79:13–25 (explaining that it is
Canales’s normal practice to even out the time he works daily to total forty hours per week)).
Lieutenant Canales did not say in his deposition that he never departs from this normal practice. In
fact, the deposition alludes to a time sheet kept by Lieutenant Canales. (Id. at 79:21–23). This time
sheet would indicate whether or not he departed from this practice during the relevant period.
Defendants have not pointed to the time sheet or any other evidence that would conclusively
establish that Lieutenant Canales lacks the injury in fact necessary for standing in their motion for
summary judgment. They are not entitled to summary judgment on this issue.
Defendants cite to some depositions to support this argument in their reply brief in support of their motion for
summary judgment. (Defs.’ Reply, Dkt. 37, at 6). The Court will not consider this argument for the purpose of resolving
Defendants’ motion for summary judgment because it was not raised in the motion, and Plaintiffs were not given an
opportunity to respond to it accordingly. McDaniel, 869 F. Supp. at 453.
8
13
Case 1:16-cv-01196-RP Document 48 Filed 02/21/18 Page 14 of 20
V. PLAINTIFFS’ PARTIAL MOTION FOR SUMMARY JUDGMENT
Plaintiffs seek partial summary judgment as to two of the four bona fide executive factors:
their primary duty and the authority to hire and fire or give recommendations regarding employment
status that are given particular weight.
A. Authority to Hire, Fire, or Give Recommendations with Particular Weight
Defendants have raised a genuine dispute of fact on this issue. The regulations give guidance
to help determine whether an employee’s recommendations regarding “hiring, firing, advancement,
promotion or any other change of status are given particular weight.” 29 C.F.R. § 541.105. As the
text suggests, the employee in question need not have the authority to unilaterally hire or fire
someone. “If final decision-making authority were the test for determining whether a person was an
executive or administrative employee, one would rarely, if ever, qualify as such an employee under
the regulations.” Kastor v. Sam’s Wholesale Club, 131 F. Supp. 2d 862, 867 (5th Cir. 2001). The rule
itself makes clear that courts should consider the following factors:
whether it is part of the employee’s job duties to make such suggestions and
recommendations; the frequency with which such suggestions and recommendations
are made or requested; and the frequency with which the employee's suggestions and
recommendations are relied upon.
29 C.F.R. § 541.105. The recommendations generally must “pertain to employees whom the
executive customarily and regularly directs.” Id. An “occasional suggestion” does not count, but the
recommendations can have “‘particular weight’ even if a higher level manager’s recommendation has
more importance and even if the employee does not have authority to make the ultimate decision as
to the employee’s change in status.” Id.
Defendants point to deposition testimony that is sufficient to prevent the Court from
concluding that no reasonable jury could find in favor of Defendants on the issue. Defendants do
not contend that Plaintiffs have ultimate authority to hire or fire subordinates, but they have
14
Case 1:16-cv-01196-RP Document 48 Filed 02/21/18 Page 15 of 20
produced evidence suggesting that their recommendations on such decisions may be given
“particular weight.” 29 C.F.R. § 541.100(a)(4).
First, Plaintiffs are responsible for conducting performance evaluations for sergeants they
supervise and reviewing the performance evaluations those sergeants conduct regarding the deputies
they supervise in turn, with some indications that Plaintiffs have the authority to change the
evaluations of the deputies conducted by sergeants. (Defs.’ Reply, Dkt. 37, at 6; Canales Dep., Dkt.
28-8, at 36:18–38:15). Second, Plaintiffs have the authority to recommend termination or discipline
and have provided some evidence of the weight given to their recommendations: at least one
plaintiff testified that he has recommended a termination that ultimately was carried out, (Canales
Dep., Dkt. 28-8, at 61:24–62:6), and that at least once he has recommended a suspension that was
also carried out, (id. at 62:12–17). Finally, Defendants point to deposition testimony given by Chief
James Sylvester indicating that lieutenants’ recommendations in this area are given significant weight.
Although the Sheriff has the ultimate decision to hire or fire an employee, the chief deputy’s
recommendations are often taken. (Sylvester Dep., Dkt. at 73:10–14; 74:15–17). And the chief
deputy gives substantial weight to the recommendations of the lieutenants. (Id. at 80:23–81:3 (“The
sergeant and lieutenant, those recommendations to me mean a lot. . . . Those probably have the
heaviest weight.”)). These facts are sufficient to create a legitimate factual dispute; summary
judgment is therefore not appropriate. See Rainey v. McWane, Inc., 314 Fed. App’x 693, 696 (5th Cir.
2009) (upholding summary judgment for an employer who “presented evidence that the production
supervisors exclusively evaluate provisional workers and provide recommendations as to their hiring
as regular employees,” and that the plaintiffs failed to provide “any evidence to contradict this
practice or indicate that these recommendations are not typically followed”); Gellhaus, 769 F. Supp.
2d at 1082–83 (finding that the employee met the requirement when her manager stated that she
“relied on, considered, and gave particular wait to” the plaintiff’s recommendations in such matters).
15
Case 1:16-cv-01196-RP Document 48 Filed 02/21/18 Page 16 of 20
B. Primary Duty
Defendants and Plaintiffs have both asserted that they are entitled to summary judgment on
the primary duty element of the bona fide executive exemption. As noted above, because the burden
of proving the bona fide executive exemption rests on Defendants, their failure to demonstrate that
the first, third, and fourth elements of the exemption have been met precludes granting summary
judgment in their favor. The Court therefore considers whether Plaintiffs have met their summary
judgment burden with respect to primary duty.
They have not. To meet the requirement, an employer must show that an employee’s
“primary duty is management of the enterprise in which the employee is employed or of a
customarily recognized department or subdivision thereof.” 29 C.F.R. § 541.100(a)(2). A primary
duty is “the principal, main, major or most important duty that the employee performs.” Id.
§ 541.700(a). “Determination of an employee’s primary duty must be based on all the facts in a
particular case, with the major emphasis on the character of the employee’s job as a whole.” Id. To
determine an employee’s primary duty, courts look to (1) “the relative importance of the exempt
duties as compared with other types of duties,” (2) “the amount of time spent performing exempt
work,” (3) “the employee’s relative freedom from direct supervision,” and (4) “the relationship
between the employee’s salary and the wages paid to other employees for the kind of nonexempt
work performed by the employee.” Id. The amount of time spent on a particular type of work can be
instructive, so “employees who spend more than 50 percent of their time performing exempt work
will generally satisfy the primary duty requirement,” but time alone “is not the sole test, and nothing
in this section requires that exempt employees spend more than 50 percent of their time performing
exempt work.” Id. § 541.700(b).
Plaintiffs contend that their primary duty is not management because their primary duty falls
under the first responder regulation, which clarifies that employees primarily engaged in activities
16
Case 1:16-cv-01196-RP Document 48 Filed 02/21/18 Page 17 of 20
such as frontline law enforcement are not covered by the bona fide executive exemption because
their primary duty is not management. 29 C.F.R. § 541.3(b)(1). The Court thoroughly detailed the
interplay between the primary duty factor of the bona fide executive test and the so-called first
responder regulation in its summary judgment order in Escribano I. (Cause No. 1:15-CV-331-RP,
Dkt. 51, at 8–15). Because there is no Fifth Circuit precedent on the matter, the Court concluded,
drawing from opinions from the Second, Fourth, and Tenth Circuits,9 as well as guidance from the
Department of Labor, that:
to determine whether a purported first responder is exempt from the FLSA’s
overtime requirement, a court must begin by asking whether the employee’s primary
duty involves frontline law enforcement or emergency response. The court answers
this question by looking to see whether the employees’ primary duty involves the
types of non-exempt activities enumerated in the first responder regulation (e.g.
preventing or detecting crimes, conducting investigations, preparing investigative
reports, etc.). It makes no difference whether the activity involves the concurrent
supervision or direction of subordinates: law enforcement and emergency response
work is non-exempt even if the work contains elements of exempt management. If
the court finds that the employee’s primary duty is law enforcement or emergency
response, then the employee is not an exempt executive employee, as her primary
duty is not management. See 29 C.F.R. § 541.3(b)(2).
Id. at 15. The fact that the employee primarily supervises others whose primary duty is
frontline law enforcement does not automatically make the employee a first responder if the
employee himself is not actually engaged in such activities. Id. at 17–18 (“The first responder
regulation does not create a transitive property of management such that the direction or
supervision of frontline law enforcement, no matter how attenuated, is itself considered frontline
law enforcement.”) (citing Benavides v. City of Austin, No. A-11-CV-438-LY, 2013 WL 3197636, at *9
(W.D. Tex. June 20, 2013)). The employee must be personally engaged in frontline law enforcement
to fall under the first responder regulation.
Morrison v. County of Fairfax, Va., 826 F.3d 758 (2016); Maestas v. Day & Zimmerman, LLC, 664 F.3d 822 (10th
Cir. 2012); Mullins v. City of New York, 653 F.3d 104 (2d Cir. 2011).
9
17
Case 1:16-cv-01196-RP Document 48 Filed 02/21/18 Page 18 of 20
Here, a fact issue exists as to whether Plaintiffs’ primary duty is management or frontline law
enforcement. Plaintiffs once again misconstrue the interplay between management and frontline law
enforcement as outlined by the Court in arguing that the fact that “all of the units supervised by the
Lieutenants constitute front line law enforcement . . . alone is dispositive” in their favor, (Pls.’ Mot.
Summ. J., Dkt. 27, at 11). This is not accurate. Rather, the inquiry turns on whether the lieutenants
themselves engage primarily in frontline law enforcement. If they do, the first responder regulation
merely clarifies that managing while engaging in frontline law enforcement does not make
management their primary duty for the purposes of the exemption. See, e.g., Maestas, 664 F.3d at 827
(“The first responder regulation does not alter the primary duty test. Thus, high-level employees
who perform some first responder duties, like police lieutenants or fire chiefs, can nonetheless be
exempt executives if their primary duty is managerial and they meet the other elements of the test.”).
Here, as in Escribano I, there is evidence that Plaintiffs’ duties include both frontline law
enforcement and management. For the purposes of the bona fide executive exemption, management
includes “activities such as interviewing, selecting, and training of employees; setting and adjusting
their rates of pay and hours of work; directing the work of employees; . . . appraising employees’
productivity and efficiency for the purpose of recommending promotions or other changes in status;
handling employee complaints and grievances; disciplining employees; planning the work; . . . [and]
apportioning the work among the employees.” 29 C.F.R. § 541.102. The Travis County job
description for lieutenants lists many such management activities. (Law Enforcement Lieutenant Job
Description, Dkt. 28-5, at 1–2). For example, a lieutenant “educates, trains, and assists Deputy
Sheriffs and Sergeants,” “[m]anages and monitors unit briefings to ensure personnel receive relevant
information,” “[m]anages and monitors assigned personnel,” “[m]anages designated personnel with
administrative duties [and] assists superiors with administrative requirements,” “[m]anages and
ensures compliance of mandated and elective training,” “[c]ommends/counsels/disciplines officers
18
Case 1:16-cv-01196-RP Document 48 Filed 02/21/18 Page 19 of 20
as appropriate,” and “[s]erve[s] on hiring and promotional boards as requested.” (Id.). Additionally,
Plaintiffs have said in depositions that they participate in several of the enumerated management
activities. For example, Lieutenants Mangum and Jewert train or supervise the training of the
sergeants they supervise. (Mangum Dep., Dkt. 28-11, at 22–24; Jewert Dep., Dkt. 28-13, at 32:13–
17). Plaintiffs have also produced evidence tending to show that they also engage in first responder
activities, such as being on patrol, (e.g., Mills Aff., Dkt. 27-1, at 1). First responder duties are included
in their job description, which states that it is important that a lieutenant “[m]aintains physical fitness
in order to perform essential duties of the position,” and “[u]ses reasonable force when necessary.”
(Law Enforcement Lieutenant Job Description, Dkt. 28-5, at 2). Lieutenants must be “proficient in
the use of defensive tactics requiring physical force” and be able to “[u]se appropriate physical force,
including deadly force, when necessary to prevent the imminent threat of death or serious bodily
injury to others or self.” (Id.).
The question, therefore, is which of Plaintiffs’ duties is primary. Considering the factors laid
out by the Department of Labor, 29 C.F.R. § 541.700(a), neither Plaintiffs nor Defendants can
demonstrate that they are entitled to judgment as a matter of law. Here, as in Escribano I, there is a
genuine factual dispute with respect to whether Plaintiffs’ exempt management duties or their nonexempt first responder duties are more important.
Ultimately, whether Plaintiffs’ management duties or first responder duties are primary is a
question of fact. See Maestas, 664 F.3d at 828–29 (holding that “the primary duty determination is a
factual one” and thus “summary judgment is proper only if there [is] no genuine dispute regarding
plaintiffs’ primary duties”); see also Vela v. City of Houston, 276 F.3d 659, 677 (5th Cir. 2001) (holding
that “[w]hether an employee’s ‘primary duty consists of management’ is a fact-sensitive inquiry”).
Because defendants have raised a genuine issue of fact regarding Plaintiffs’ primary duty, Plaintiffs’
motion for summary judgment on the issue must be denied.
19
Case 1:16-cv-01196-RP Document 48 Filed 02/21/18 Page 20 of 20
VI. CONCLUSION
For the foregoing reasons, Defendants’ motion for judgment on the pleadings, (Dkt. 28), is
GRANTED IN PART AND DENIED IN PART. Accordingly, Plaintiffs’ state law claim is
DISMISSED, but their FLSA and § 1983 claims remain. Defendants’ motion for summary
judgment, (Dkt. 28), is DENIED. Plaintiffs’ motion for partial summary judgment, (Dkt. 27), is
DENIED.
SIGNED on February 21, 2018.
_____________________________________
ROBERT PITMAN
UNITED STATES DISTRICT JUDGE
20
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?