Ball v. City of Dodge City
Opinion of the Court
Plaintiffs-appellants, all current or former police officers of defendant Dodge City, appeal
We review summary judgment determinations de novo, applying the same standard used by the district court under Fed.R.Civ.P. 56(c). James v. Sears, Roebuck & Co., 21 F.3d 989, 997-98 (10th Cir. 1994). Thus, we will affirm the grant of summary judgment “if ‘there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.’ ” Hagelin for President Comm. v. Graves, 25 F.3d 956, 959 (10th Cir. 1994) (quoting Rule 56(e)), cert. denied, — U.S. -, 115 S.Ct. 934, 130 L.Ed.2d 880 (1995). Further, we need not agree with all of the district court’s reasoning, but may affirm on any proper legal ground. Resolution Trust Corp. v. FSLIC, 25 F.3d 1493, 1503 (10th Cir. 1994).
The district court expressly relied on our opinion in Lamon to reject plaintiffs’ FLSA claim: “Contrary to plaintiffs’ argument, the City’s adoption of a § 207(k) plan is not a sham. Lamon, 972 F.2d at 1152. Even if the effect of the City’s adoption of a § 207(k) plan is to reduce the amount of compensation plaintiffs would have received [otherwise], the FLSA is not violated. Id.” Ball, 842 F.Supp. at 475. While this reference to Lamon is correct as far as it goes, it omits an important distinction which is pertinent here.
Although “there is nothing improper about a state or local-government employer adopting the subsection (k) framework in order to take advantage of that subsection’s provisions,” Lamon, 972 F.2d at 1152 (emphasis added), “an employer may not impose sham changes in its employment scheduling and compensation policies so as to evade the Act,” id. (emphasis added). As we have already noted, plaintiffs do not object that the City (properly) exploited the employer-favorable overtime provisions in § 207(k); they complain, rather, that the City concomitantly lengthened the regular workshift with no incremental increase in pay so as to nullify the FLSA’s employee-favorable meal and meeting time pay requirements. In Lamon, this court adopted the view that such strategic, uncompensated extensions of the work day “weigh[ ] in favor of finding [a pay schedule] change not to be bona fide.” Id. at 1152-53 nn. 9, 10. We need not remand this matter for consideration of additional factors in evaluating the City’s conduct, however, as the district court’s alternative rationale provides a sound legal basis for disposition of this case.
A number of courts have held that a government employer’s allegedly FLSA-defeating wage adjustment, resulting, as here, in a pay system that is itself in compliance with the Act,
This case ... does not present an issue of whether the Act barred the [allegedly sham] calculation of the regular rate [of pay], because here Congress delayed application of the Act until April 16, 1986, ten months after the calculation took place.... Because the calculation occurred prior to the Act’s effective date, [plaintiffs] cannot argue the Act governs those calculations.
[Plaintiffs] also argue that even if the calculations made by the City were not invalid because the Act was not yet in effect, ... the resulting system implemented based on the calculations became invalid as soon as it was covered by the Act. Although [plaintiffs] cite cases in which creative calculations ... were invalidated, even if the resulting system appeared to comply with the FLSA, all of these cases ... involved calculations of the regular rate occurring after the application of the Act. Neither the Supreme Court nor our circuit has held that calculations occurring prior to the Act tainted the otherwise valid system employed under the Act. Rather, the Supreme Court has found that the calculations themselves, and not the systems produced from the calculations, were the source of the violation of the FLSA. That is, if [sham] calculations occur after the Act, ... the calculations, as opposed to the [resulting] system, violate the Act. In this ease, however, the calculations simply were not covered by the Act in June 1985. We can find no authority for finding an otherwise valid system invalid because it was based on calculations made prior to the Act. Wethington, 935 F.2d at 228 (footnotes and citations omitted). We join our sister circuits in embracing this common-sense view.
Plaintiffs argue that the City violates their FLSA rights anew with each paycheck. See Brief of Appellants at 46-49. Under the analysis adopted herein, such a “continuing violation” theory is plainly inapposite:
For there to be a continuing violation, there must be at least a violation. The plaintiffs’ argument assumes that the City’s calculation of the regular hourly rate, which was lawful in ... 1985, somehow became unlawful after April 15, 1986- We cannot use a continuing violation theory to make a discrete lawful act unlawful upon a change in the applicable law.
York, 48 F.3d at 922-23. Accordingly, we hold that the City did not violate § 207 when it extended plaintiffs’ regular workshift by one-half hour in anticipation of the impending application of the FLSA.
The judgment of the district court is AFFIRMED.
. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.
. This interlocutory order became final and ap-pealable after plaintiffs voluntarily dismissed their remaining claims and the district court denied their motion to alter or amend judgment under Fed.R.Civ.P. 59(e).
. The parties stipulated that in-shift meal periods and pre-shift squad meetings were "hours worked” under the FLSA. See Appendix (App.) Vol. I at 50.
. We note that, notwithstanding the insidious motive plaintiffs espy in the surrounding circumstances, there is nothing improper in the fact that the City continues to pay its police officers an overtime wage higher than the FLSA formula would require, based on their regular (170-hour) pay. See Lamon, 972 F.2d at 1154.
.We consider only whether plaintiffs have substantiated a claim under § 207. Plaintiffs specifically disavowed “any claim that defendant violated ... Section 8 of the FLSA Amendments of 1985,” App. Vol. I at 51, which, unlike § 207, expressly applies to one category of wrongful conduct (retaliatory discrimination) engaged in by government employers before April 15, 1986,
Reference
- Full Case Name
- John K. BALL, James A. Burkhard and Robert F. Strader, II, on behalf of themselves and all others similarly situated, and Joan M. Addison, Neil A. Baltazor, Eric S. Bates, Dennis M. Cork, Mariclaire E. Kraft, Gary Lee Kragh, Martin L. Lewis, James P. Lyall, Edwardo Martinez, Ernest J. Mazza, Craig A. Mellecker, Gary S. Nelson, Susan D. Pickle, Glen W. Rakes, Gaylon L. Rose, Frankie G. Sanchez, Steven F. Schwiering v. The CITY OF DODGE CITY, KANSAS
- Cited By
- 3 cases
- Status
- Published