Petition for Writ of Certiorari — Marticiuc v. City of Houston

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INTHE 03 13 8 JUL 17 2003

Supreme Court of the Anited States

HANS MARTICIUC, et al.,

Petitioners,

¥.

CiTy OF HOUSTON, TEXAS,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

MICHAEL T. LEIBIG *

MARGO PAVE

ZWERDLING, PAUL, LEIBIG, KAHN &

WOLLY, P.C.

1025 Connecticut Avenue, N.W. *

Suite 712

Washington, D.C. 20036-5420.

(202) 857-5000

ROBERT A. ARMBRUSTER

HOUSTON POLICE OFFICERS’ UNION

Office of Legal Counsel

1600 State Street, Suite 200

Houston, Texas 77007

(832) 200-3420

ROBERT J. THOMAS

ROBERT J. THOMAS, P.C.

1302 Waugh, No. 826

Houston, Texas 77019-4944

(281) 924-3019

* Counsel of Record Counsel for Petitioners

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 -— WASHINGTON, D.C. 20001 \\ cy )

VAN

QUESTION PRESENTED

Section 207(0) of the Fair Labor Standards Act, 29 U.S.C.

§ 207(0) (West 2000), as amended, 29 U.S.C. § 201 et seq.

(“FLSA”) defines the circumstances under which a public

employer is permitted to deny requests for the use of accrued

compensatory time. The question presented here is whether

requests for use of compensatory time may be denied on the

basis of a system which grants time off within a reasonable

period after the request (the employer designated approach),

or whether the specific time requested by the employee must

be granted absent undue disruption to the employer (the

employee choice approach).

The Fifth Circuit decision in this case adopted the em-

ployer designated approach. However, the employee choice

approach is applied outside the Fifth Circuit by the U.S.

Department of Labor and by district courts in Massachusetts,

Wisconsin, North Carolina, Virginia and California. The

issue is before the Sixth Circuit pending oral argument in

Beck v. City of Cleveland, Case No. 02-3669, and was

decided under a third collective bargaining agreement defer-

ral approach in Aiken v. City of Memphis, 190 F.3d 753 (6th

Cir. 1999). There is clearly a split among the federal courts

of the United States regarding how the FLSA, a major federal

statute, is to be applied to govern the use of accrued

compensatory time.

~ PARTIES TO THE PROCEEDING BELOW |

PLAINTIFFS/APPELLANTS/PETITIONERS |

In addition to Petitioners Houston Police Officers Union

and Hans Marticiuc, the following are members of the City of

Houston Police Department and are also Petitioners. For

convenience, they are referred to as “the Officers.”

tr ae remny cnet Sata

Adams, Fredtrena C., Adams, Jimmy A., Adams, Rodney

Adkins, Glenda, M. Adkins, Tim L., Aguirre, Mark A.

Alcantara, Anthony, Alexander Robert, Ray Allard, Jeffery,

F., Allen, Charles, Allen, Larry, Jean, Alsbrooks, Ruston,

Keith, Amato, Michael, C., Anaya, Sofir, Andrade, Tracy, ‘

Ann, Arceo, Aristotle, A., Arcizo, David, Arias, Ruben,

Arjona, Efren, H., Arms, Calvin, D., Amold, Dan, W.,

Ashford, Roosevelt, Atkins, Jr., Donald, Bacon, John, K..,

Bailey, Gary, Wayne, Bailey, Mark, C., Balderaz, David,

Baldwin, Orus, Baker, Ball, John, D., Ballard, Charles, A.,

Baralt, Gerald, F., Barnes, John, Barthe, Harold, A., Barton,

Randal, Lee, Baskin, David, Alan, Batch, Michelle, Batiste,

Markquette, James, Batts, Brent, S., Bedner, Michael, Bell,

Jimmy, T., Benavidez, Daniel, D., Benefield, Paul, S.,

Bennett, Bryan, K., Bennett, J., L., Bennett, Jon, P.,

Benningfield, Debbie, L., Bernard, Charles, W., Berry, Jr.,

Jamerson, Bickel, Jeffrey, E., Blake, Richard, J. Blake,

Ronnie, S. Bland, Jacques, French Blankinship, Gary, L.

Bogar, John, A. Bohn III, Harold, D. Booker, Jr., Leon

Boone, Samuel, E. Booth, William, Borgstedte, Steven, M.

Borza, Ronald, J. Bosworth, James, E. Boucher, Lisa E.,

Bowers, Stephen M., Boyer, Douglas, R., Boyle, Timothy J.,

Brady, Robert C., Brandon, Jerri L., Brashier, Joseph Roy,

Bratton, Melanie A., Bratton, Terry, Breen, Michael Kelly,

Brogden, Donald W., Brooks, Ronnie,P., Broome III,

Cleveland, Broughton, Reginald D., Brown, Daniel T.,

Brown, Daryl W., Brown, Gary A., Brown, Steven, Brown,

William Kenneth, Browne, David E., Bryant, Chris W.,

Buchala, Michael A., Buller, Val R., Bumstead, James

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Randall, Burmester, John H.G., Burke, Andrea, Burnett,

Cathy N., Burnett, Troy Lee, Buse, Darrin M., Buttitta,

Joseph A., Button, Gary, W. Byrd, Jr., Earnest Cadriel, Joel,

F. Cain, Steven, Calaway, Phillip, B. Calderon, Raul,

Calderon, Ricardo, Calderon, Ruben, Calley, Jason, A.

Calley, Matthew, . Cambric, Robert, Cameron, Curtis, L.

Cannady, David, Brent Cannon, B., R. Canton, Thurman,

Cantu, Jesus A. Cantu, Juan F. Captain, Gail R. Cargill,

Jimmy D. Carnot, J. M. Carr, Charles M. Carr, Paul, Carr,

Tommy J. Carroll, Jessie L. Carter, Reginald B. Cashdollar,

Reid Matthew Casko, Stephen F. Castaneda, Rodolfo A.

Cates, William C. Cato, Kelly Michelle Cavaliere III, Peter

V. Cegielski, Albin C. Cegielski, Christopher M. Cervantes,

Ismael, Chamberlain, L. E. Chambers, Leonard, Chance,

Erol, Chance, Gary W. Chapa, Arnoldo, Chappell, Roger W.

Charrier, Michael R. Chase, Jay R. Chavez, Jr. Brigido

Chavez, Henry, Chavez, Vincent L. Cherrington, Ronald W.

Chimney, Eric L. Chubirka, Dennis, Cinco, Nolan P.

Cisneros, Jr. Mauro Clark, Laura W. Clark, Matt, Clarke, J.

T. Clawson, Cynthia S. Clement, Cheryl A. Clements, Robert

M. Clevenger, Brian, Clopton, Kerry G. Coleman, Albert E.

Coleman, Austin L. Collins, James W. Collins, Phillip C.

Collins, Raul, Collins, Sammy Jean Conner, Thomas A.

Conner, Timothy B. Corley, Billy E. Corley, Michael,

Correia, N. J. Cortinas, James Henry Cosper, Crafton B.

Costa, Fausto, Crabtree, Keith A. Craig, Darren M. Craig,

Michael, Crawford, Dale Scott Crawford, Lowena S.

Crawford, Patrick J. Crellin, Kerry M. Crenshaw, Gary E.

Crocker, Harold Randal Cromeens, Thomas E. Cross,

Alfonzo L. Crowson, Jr. James Cruise, Victor R. Cuevas,

David, Cuevas, Rickey J. Curry, David W. Curry, Teresa D.

Dahlman, Peter B. Dargin, E~ic, Davis, Charles L. Davis,

Darin D. Davis, Denise A. Davis, James B. Davis, Mark E.

Davis, Matthew L. Davison, Ronald L. Day, Jr. Paul Day,

Edward Alan Deason, Paul A. DeBlanc, Donald Lynn

DeBoissiere, Robert A. DeJesus, Edgar, Delia, Daniel Gerard

DeLuke, Joseph P. Demby, Jr. Willie D’Eugenio, Joseph R.

Devora, David G. Dickens, Durrell, Dillon, Jr. Gerald Dillon,

Tim M. DiMambro, Jr. Robert Dodd, Randy Alan

Dombrowski, Scott P. Douglas, Jr. Clarence Doyle, Gary W.

Drehel, Jr. Nickie Drehel, Sylvia P. Duffy, Steven F. Duillo,

Richard M. Duncan, Andrew B. Dunn, Michael L. Duran,

Jose S. Duran III Ezequiel, Dyer, Scott, Dyess, Carl Doug

Eagan, David J. Eckenrode, Dennis, Edwards, Daryn B.

Eichler, Jr. Albert Elder, Donald, Ellerman, Roger G. Elliott,

Sr. Louis Ellis, Selvyn John Epperson, Howard E. Ermis,

Denis W. Espinoza, Jaime C. Falcon, Jr. Jose Falcon, Rodolfe

Valentino Falls, Clinton D. Farias III] Rudy, Fason, Jr. Johnny

Feddersen, Kenneth J. Fern, Daniel J. Fernandez, Jorge L.

Fernandez, Michael J. Ferrell, Samuel B. Feusse, Russell J.

Fike, Daniel P. Fincher, Tony B. Fisher, Steven, Fite, Jesse,

Fitzgerald, William H. Flores, George A. Foltz, Brent W.

Fondon, Jeff, Fondon, Kimberly D. Fontenot, Jr. Clarence

Fontenot, Jr. Wilrey Forrester, Stephen M. Foster, Charles,

Foster, Mark W. Frank, Cory J. Fu'l, Craig H. Fuller, Leon B.

Gabler, Thomas Q. Gadus, Joseph W. Gage, III Monroe,

Gage III Steve, Gainer, Clay M. Galbiati, Steven A. Gallier,

Kevin B. Galligan, Timothy D. Gambino, Jr. Salvador

Gamble, Troy, Gamez, Sabino, Gann, Christoper Eric Garcia,

Damian P. Garcia, Jose S. Garcia, Michael, Gardner,

Catheryn Y. Gardner, Robert C. Garza, Jr. Homer Garza,

Joel, Garza, Rache!, Garza, Victor S. Gentry, Catherine E.

Gerstle, Theodore E. Gilliard, Sr. Harold Gipson, Ronald

Dean Givens, Warren Lee Goldsby, Brian, Gomez, Jr.

Rodolfo Gonzales, Freddie T. Gonzales, Hector R. Gonzales,

Regina Ann Gonzales, Robert C. Gonzalez, Luis J. Gonzalez,

Miguel A. Goodson, Chris, Gough, Sr. Kevin Gratz, James

M. Gray, Hahn R. Green, Jr. Marion Green, Brenton D.

Green, Charles E. Green, Chris L. Green, Kimmy L. Gregory,

Sr. Marc Grimmett, Kevin L. Grossheim, Todd Stephen

Guidry, Joseph N. Guidry, Marcella, Gurley, Philip E.

Guzman, Antonio R. Guzman, Eloy, Hahn, Richard, Hall,

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James P. Hamill, Dan R. Hanham, Leonard J. Harding, Tolan

W. Hardy, Guy, Harford, Don J.A. Harford, Rhonda Renee

Harris, Jr. Robert Harris, Beverly R. Harris, Brian J. Harris,

Stuart A. Harry, Tim R. Hatcher, Richard T. Hawkins,

Anthony K. Hayden, William L. Hayes, Thomas F. Hebert, R.

M. Hein, Steven K. Heinle, Alan R. Hekimian, Krikor J.

Helms, Geoffrey C. Henderson, Jr. Arlon Henry, Handy

Penny K. i.ensarling, Randall C. Henson, Gregory R.

Hernandez, Helberto, Hernandez, Hilario R. Hernandez,

Israel, Hernandez, Luis E. Hernandez, Norma J. Hernandez,

Roverto, Herrera, Anthony G. Herrera, Horacio J. Hewitt,

Curtis E. Hibert, David J. Hightowe, Michael James Hill,

Forrest D. Hoffard, Russell G. Hoffmaster, Larry W.

Hoffpauir, Thomas A. Holden, Sherry B. Holliday, Gregory

S. Hollier, Troy R. Hollins, Jr. George Holloway, Darrel,

Holubec, Louis Lee Hood, James Brian Hooper, Larry G.

Hopkins, Ronald R. Horton, Jimmy G. Houston, Jarvis K.

Howard, Jr. Carroll Howard, Colin, Howe, Robert A. Howe,

Shannon L. Hromadka, Larry W. Huante, Carlos Roberto

Hudkins, James Patrick Hudson, James David Huff,

Benjamin L. Huff, Keith G. Hughson, James Denis Hunt,

Charles E. Hunt, Raymond M. Huseman, Robert, Huseman,

Ronald W. Huynh, Tony, Ingels, Michael D. Inocencio, Joe,

Jacks, Roy D. Jackson, Lotha M. Jackson, Michael T.

Jackson, Phillip G. Jackson, Robert H. Jaeger, Hans H.

Jammer, Sr. Anthony Jaynes, Kathleen D. Jefferson, II Lewis

Jennings, Robert A. Jensen, Damon L. Johnson, Bruce D.

Johnson, Dan, Johnson, Eric M. Johnson, John Nelson

Johnson, John S. Johnson, Joslyn M. Johnson, Rodney

Eugene Johnson, Rodney J. Johnson, Tonya R. Johnson III,

Bruce Henry Jones, Jr., Lawrence Jones, Christopher W.

Jones, David M. Jones, Erma J. Jones, Jay L. Jones, Nancy

Lee Jost, Jr., Patrick Juarez, Noe, Juenke, Glen A. Juenke,

Spencer, Kay, Daniel S. Keller Linda Kay Kennedy, Jr.,

Samuel Kessler, Richard D. Kessler, Robert S. Kiker, Jerry

Neil King, Robert Q. Kinsey, Gary P. Kinsworthy, D. M.

Klaus, David William Klausner, C. J. Klepac, Donald

Raymond Knapp, David L. Knott, Johnnie R. Kowal, John,

Krause, David Michael Krizan, Lloyd G. Kroesche, Larry K.

Kubiak, Timothy M. Kwiatkowski, Stephen M. Laird, Scott

C. Lakind, Larry, Lakind, Rory S. Lampton, Gienn A.

LaMunyon III, Colonel Robert Landgrebe, Jeffrey N. Lane,

David, Langehennig, Fred R. Larson, Jeff D. Lascano,

Edward R. LaVeque, Richard James Lavespere, Mark Aaron

Law, James Steven Laws III, Alton B. Leatherman, Stephen

K. Leatherwood, Mark R. Ledet, Carey, Lee, James S. Lee,

Michael, Leija, Jr., Ruben Lem, Matthew, Lerma, Frank M.

Lester, Cole J. Levitt, Barry, Lieke, Norman H. Lightener, Jr.,

Donald Lindquist, Laura, Lindsey, Jr., William Lindsey, Paul

R. Lineberry, Jerry W. Linscomb, Steven W. Liu, Whitman

T. Lockman, Jr., Frederick Loessin, Mike, Loofs, John W.

Lopez, Jr., Jesus Lopez, Jr., Pedro Lopez, Francisco J. Lopez,

Humberto, Lopez, Sigifreado, Lucas, Timothy N. Ludwig,

Claude, Lumpkin, Michael, Lundy, Adrian, Lundy, Williams

Wayne Luplow, James B. Lyons, Warren D. Maciel, Jesus C.

Madden, William R. Madrid, Redefo, Maffett, Richard E.

Malek, Christopher J. Malone, Michael B. Malyak, Nicoletta,

Manfre, Julie Diane Mangano, Jr., Collie Manzo, Robert,

Mar, Herman, Marsolais, Mark, Martin, Ronald L. Martinec,

Dennis M. Martinez, Jr., Manuel Martinez, David N.

Martinez, Guadalupe, Martinez, Jose Ramon Martinez, Leon,

Mason, Robert L. Matthews, Stanley, Maurer, Neil E.

Mawhood, Anton M. Maxwell, Griff R. May, Matthew B.

May, Paul M. May, Steven S. Mayer, Hubert L. Mayfield,

Darrell Dwane Maynor, Jacob E. McCammon, Ross A.

McCardell Gary, McClane, Michael E. McClendon, Earnest

L. McClinton, Mark C. McCord, Brenda K. McCard, John C.

McDaniel, Kevin E. McDonald, Charles D. McDonnald,

Barry, McIntyre, Lori L. MclIntyre, Patrick, McKenzie,

Rodney Harold McLaughlin, Joseph Patrick McLemore,

Robert W. McMurtry, Keith L. McQueen, Charles Wayne

Meisel, Hans, Meisel, Janet, Melendez, Jose F. Meraz, Jr.,

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vii

Ray Mercer, Phillip, Miller, Donald R. Miller, George,

Miller, Mark Andrew Miller, Mikki L. Miller, Ronald,

Mireles, Richard J. Mireles, Robert M. Mitchell, Jr., Daniel

Mock, Anthony J. Monte, Mike S. Montemayor, Jr., Jesus

Montgomery, Harvey R. Moore, Jr., Aubrey Moore, Donald

W. Moore, James E. Moore, Mac Anthony Morgan, Kevin A.

Morgan, Kevin J. Morris, Heather, Morris, James J.

Morrison, Kerry S. Moses, Michael D. Moses, Davis

Stephine, Mosley, Ralph D. Muench, Michael L. Mulford,

Philip, Muller, Robert P. Mundy, Robert P. Murdock, Steven,

Murray, Patrick M. Myers, David E. Naquin, Kye, Narvaez,

Abraham, Narvaez, Robert Anthony Naul, Douglas Mac

Neck, David R. Nelius, Dennis R. Nelson, Thomas A.

Nessenthaler, John, Newman, Jr., Wendell Nguyen, Thong

Anh Nguyen, Walker Tran, Nichols, Jr., Howard Nichols,

John S. Nimmo, Jerry L. Nino III, Rafael F. Norwood, Jon D.

Null, Thomas P. O’Brien, Carlos E. O’Connell, Michael,

Ogden, John A. O’Leary, Darrell J. O’Leary, Scott D. Olesen,

Jeffrey Alan Olivares, Ramiro, O’Mara, David S. Ong, Mark,

O’Rourke, Carolyn L. Overby, Kurt M. Oviedo, Louis,

Owens, David J. Page, Don A. Palin, Shawn, Palmer, Brian,

Palmer, Gregory A. Pando, Octavio Tad Park, Connie,

Parker, Jr., Adolph Parker, Jeffrey S. Parker, Robert R.

Parker, Ronnie John Pavey, Mark A. Pavlu, James, Payne,

Maurice D. Payton, Cecil E. Pederson, Karl Mekkel Pena,

Albert R. Pena, Ronald R. Pendleton, Dale D. Pennington,

Patrick D. Perez, Steve Albert Perkins, Judith A. Perkins,

Kenneth, Perry, Raymond Doyle Peterson, Vance Matthew

Phipps, Douglas W. Piel, Bradley A. Pierce, Michael L.

Pierce, Stacy W. Pinkerton, Ronald V. Pitts, George W. Polk,

G. E. Polk, Michael K. Ponton, Parris, Pouncy, Sharon

Denice Powell, Eric C. Powell, William L. Powell II], Glenn

A. Powers, Gary L. Prendergast, Mark R. Present, Blake Alan

Price, Virgil R. Pritchard, Jack T. Provost, Mattie C. Provost,

Michael Edward Pryor, Danny M. Puente, Joe Louis Purser,

Glenn, Pyland, Fred Joe Quintanilla, Martin, Ramirez,

Vill

Candelario, Ramirez, Salve R. Ramos, Jr., Adalberto Ramos,

A. R. Ready, Dwayne W. Reece, Shy J. Reed, Calvin T.

Reese, Paul R.Reeves, Daryl F. Reeves, Richard G. Reiser,

William E. Rendon, Jr., Arthur Reyna, Jr., Clemente Reyna,

Richard, Richards, Catherine L. Richards, Kerry L. Riendeau,

Thomas J. Riggs, Cory T. Rios, William R. Ritchy, Donald

G. Rivera, John M. Roberts, Jay C. Roberts, Jerry R.

Robinson, Mark S. Robinson, Stephen A. Roderman,

Richard, Roderman, Robert J. Rodriguez, Jr., Ferdinand

Rodriguez, Daniel M. Rodriguez, David, Rodriguez, Gloria

G. Rodriguez, Ismael A. Rodriguez, Oscar, Rodriguez, Rafael

Bulnes Rodriguez, Rogelio, Rogers, David L. Rogers,

Rebecca J. Romano, Louis M. Romano, Robert P. Romportl,

Joseph C. Rooke, Clyde, Rosborough, Karl Edward Ross, F.

J. Ross, Richard J. Rosser, Brett A. Rowe, Janet Christine

Rowe, Walter, Rowley, William D. Rubio, Leopoldo, Ruiz,

Heidi J. Ruiz, Rogelio, Russell, John A. Ryza, David, Ryza,

Paul E. Sable, Perry David Saenz, Roberto D. Salazar, John

C. Sallee, Milton W. Salley, Steven K. Salter, Richard L.

Sampiere, Robert P. Sampson, Karen E. Sampson, Michael L.

Sanchez, Honorio, Sanders, Ivan G. Sanders III, Edwin,

Sandoval, Michelle E. Sandoval, Robert A. Santerre Paul B.

Satterwhite, Chris, Schaudel, George, Scheibe, Gary A.

Scheibe, Michele R. Schindler, Ronald J. Schmidt, Charlie J.

Schon, Mark A. Schoppe, Dennis, Schroeder, Cindy B.

Schultea, James R. Schweiker, Jr., Robert Seals, Wanda,

Segura, Lynette A. Semmelrock, Jr., Arnauld Serpas, Jeffrey,

Serpas, Melinda G. Shaffer, Jeffry Kirk Shaw, George E.

Sheldon, Wesley C. Sheppard, Stanley D. Sherman, Chris,

Sherrouse, Robert W. Shirley, John D. Siens, Gerald L.

Sievert, Steven L. Silvas, John R. Simerly, Don, Simerskey,

Max A. Simper, Kevin J. Singleton, Jr., Douglas Slade, David

W. Slay, Roy L. Smajstrla, Russell, Smalley, Wade L. Smith,

Donald R. Smith, Gray D. Smith, Joseph M. Smith, Keith D.

Smith, Mark E. Smith, Randle W. Smith, Raymond L. Smith,

Scott D. Sobota, James, Sohlin, Douglas C. Sokoloski,

Gregory A. Sokoloski, Steven M. Song, Hyonuk, Speck,

Carnell, Spencer, Richard M. Spezia, Gina T. Spjut, Dan J.

Spjut, John Harlan Spurling, Benita G. St. John, James V.

Stafford, Harry Chav Staggs, Christopher B. Stairhime, Jr..

W. Starr, Daniel W. Staskus, Charles P. Stearns. Troy,

Steffenauer, Paul D. Stepchinski, Nigel J. Stepchinski,

Rhonda P. Stephens, W. I. Stevens, Mark C. Stewart, Mark R.

Still, Richard A. Stinson, Leon W. Stoneham, Sr., Edward

Stowe, Jimmy D. Strange, Kenneth C. Strodtman, Forest E.

Swartz, Jr., Herbert Sweatt, Alan B. Sweatt, John Brent

Swetlick, Robert, Swize, Russell F. Tallent, Ronnie E. Talton,

Thomas Roger Taravella, Andrew, Tatum, Brett A. Taylor,

John Cole Taylor, Michael D. Taylor, Paul, Taylor, Vincent

A. Taylor III, Arthur N. Teamer, Drunzella, Teel, Thomas C.

Terry, Paul S. Thomas, Danny, Thomas, David Allen

Thomas, Michael L. Thompson, Jr., Joseph Thompson,

Michael W. Thorsen, Mark W. Thrailkill, William Jay Tippy,

James E. Tomlinson, William N. Trahan, Steven Gerard

Trautwein, Carol M. Trautwein, Michael D. Treat, Leonard

M. Trepagnier, Lawrence J. Trevino, Guadalupe, Trumps, L.

A. Turman, Gary A. Upton, Randall Lee Urteaga, Paul A.

Vahldiek, Robert H. Van Wagenen, Jeffrey S. Vana, Allen J.

Vasquez, Rodolfo, Vassel, Jr., Clarence Vaughn, Ronald J.

Vela, Luis G. Veliz, Sidney P. Verastigui, Jaime, Verdin, Joe

L. Verot III, Rene, Versluis, Anthony E. Vollert, Johnie, Von

Runnels, Eric, Walker, David W. Walker, Ronald D. Walker,

Stan D. Wall, Chad J. Wallace, William A. Walsh, John,

Waltmon, Michael W. Warfield, Shawn Konnery Warren,

Charles, Waterwall, Philip, Webb, Jr., Jacob Webber, Jimmy,

Weido, Paul Steven Weinschreider, Glen, Welch, Henry G.

Wenzel, Kenneth E. Werner, Jerry D. West, Earnest J.

Wheeler, James D. Wheeler, Susan W. White, Jr., Essie

White, Anthony R. White, Emest G. White, Norman H.

White, Shandra, Whitley, Jr., James Wiggins, Dennis M.

Wilburn, Hugh H. Wilkinson, Robert A. Williams, Jr., Paul

Williams, Brederick; Williams, Darlene C. Williams, Darrell

L. Williams, George D. Williams, Justino, Williams, Richard

Alan Williams, Scott, Willoughby, B. G. Wilson, Nicholas C.

Wilson, R. V. Wilson, Stephanie A. Wiltz, Kenneth D.

Winebrenner, Kent E. Winkler, Floyd Winn, Randall,

Wisnoskie, Michael L. Wood, Jr., Fred Wright, James J.

Wyatt, Shone R. Wyhs, Jr., Charles Yates, Jared, Yates, Jeff

A. Yencha. John M. Ynosencio, Michele, York, Douglas Ray

Young, Andrew E. Young, Curtis, Young, Frederick C.

Young, Gary, Young, Michael T. Zajac, Richard J. Zamora,

Deborah, Zamora, Lyn A. Zavesky, Michael G. Zera,

Jonathan B. Zielenski, Robert C. Zufall, Robert,

DEFENDANT/APPELLEE/RESPONDENT

City of Houston, Texas.

{

;

}

TABLE OF CONTENTS

PRI ies 8 PEE PRREE F SUEP vvenssnsvnvscensariseseennnanonievsdaseantns i

PARTIES TO THE PROCEEDING BELOW............... ii

SERIE FIA Re itinnGiioninnianmmann xiil

Se ee RIG wiiithcnscccsniidinnictoetacvcanpnsnsibionnaninnn l

STATUTES AND REGULATIONS INVOLVED........ 2

EPR Rene PEF BRRS RPA sei cisiicnsivessssssensintivessovnienes 2

REASONS FOR GRANTING THE WRIT.................. 4

a ee TY sd ankininlenveskanenvcinticamribesteoennitinsunetion 15

APPENDIX A

Opinion of the United States Court of Appeals for the

Fifth Circuit Dated and Filed April 29, 2003............. la

APPENDIX B

Judgment of the United States Court of Appeals for

the Fifth Circuit Filed April 29, 2003... 1Sa

APPENDIX C

Memorandum Opinion and Order of the United States

District Court for the Southern District of Texas,

Houston Division, Dated and Filed September 26,

PERT ARR Sages Peed oe Oe I AE CD ARN aD 17a

APPENDIX D

Final Judgment of the United States District Court for

the Southern District of Texas, Houston Division,

Dated September 25, 2001, and Entered September

eG SE biccabcainninleaa hilar cecnedcatekiedinbelisa cinema’ 39a

Xil

TABLE OF CONTENTS—Continued

APPENDIX E

Fair Labor Standards Act of 1938, § 7(0)-(q), 29

U.S.C.A. § 207(0)-(Q) ..scesccessessseseeersereeesesersseesensennees

APPENDIX F

Regulations Involved ..........:cssesssseseeeseseeseeetseneesesess

APPENDIX G

Meet & Confer Agreement Between HPOU & City of

HOUSON ..00ccceesesveseveonvvververssvovesenensssevensesseovsnesensnasenees

APPENDIX H

Michael L. Kimpel, et al. v. Willie Williams, et al., No.

CV-93-3441-GHK (RNBx) (CD Cal. 1999) ...........+.

APPENDIX I

John J. Canney, et al. v. Town of Brookline and

Brookline Police Department, 2000 U.S. Dist.

16279 (D. Mass. October 9, 2000).........:sseeeereereeeees

APPENDIX J

Long Beach Police Officers’ Association, et al. v.

Robert M. Luman, et al., CV 99-13090 FMC

(JWJx) (CD Cal. May 10, 2001) «0.0... sseesessereeeeteesees

APPENDIX K

Meyer, et al. v. The City of Raleigh, 5:99-CV-324-

BO(3) (ED NC, August 10, 2001) ...... css snenes

APPENDIX L

Alexandria Coalition of Police, Local 5, 1.U.P.A.,

AFL-CIO, et al. v. City of Alexandria, Virginia, et

al., C.A. No. 01-1617-A (ED Va. March 22,

2002)

Page

40a

46a

62a

64a

73a

76a

88a

Xill

TABLE OF AUTHORITIES

CASES Page

Aiken v. City of Memphis, 190 F.3d 753 (6th Cir.

TE i, 4, 6

| Alexandria Coalition of Police, Local 5, 1.U.P.A.

AFL-CIO et al. v. City of Alexandria, CA 01-

1617-A (E.D. Va. March 22, 2002)................... 13

Beck v. City of Cleveland, Case No. 02-3669 (6th

Nees csscscsasssensesnnceesceees i, 6

Canney v. Town of Brookline, 2000 U.S. Dist.

16279 (D. Mass. October 9, 2000)................000. 11

D ‘Camera v. District of Columbia, 693 F. Supp.

i cscinteessksnnsseoscceseseses: 13

D’Camera v. District of Columbia, 722 F. Supp.

EE SED 13

DeBraska v. City of Milwaukee, 131 F. Supp. 2d

PE Ie Ps BI ec scssscsrscccessccesncccesecses 9,10

Hoff v. Park, CV 98-10245 GHK (RNBx) (C.D.

ES TT 13

Houston Police Officers’ Union, et al. v. City of

Houston, Texas, 330 F.3d 298 (Sth Cir. 2003)... 1, 4

Kimpel v. Williams, CV 93-3341-GHK (RNBx)

i dacsccssecksssesesecsecnscesseee 13

Long Beach Police Officers Assn. v. Luman, CV

99-13090 FMC (JWJx) (C.D. Cal. May 10,

ELE LSE 1]

Meyer v. City of Raleigh, 5:99 CV 324BO(3)

re WU I, PED nnn cssscrcescscccsecers 12, 13

STATUTES AND REGULATIONS :

SN si dcnccscnscenseccscsscessescecseessese 2

RE Moss cs ssensevencsvensccccceees i

ia iactesccnccnsensrveesescecssseees i, 2

ee passim

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XIV

TABLE OF AUTHORITIES—Continued |

Page

52 Fed. Reg. 2032 (1987) ....cccseseseeesseeseeeeereeeeeees 8

52 Fed. Reg. 2648 (1987) ......sesescssesseeetseeeeeeeneens 8

MISCELLANEOUS

House Report No. 99-331 .....ceseeeeseeesseeeereeteeeeetees 8

IN THE

Supreme Court of the Anited States

No. 03-___

HANS MARTICIUC, et al.,

Petitioners,

¥.

CITY OF HOUSTON, TEXAS,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

Hans Marticiuc and 896 other Houston Police officers,

Plaintiffs in the District Court and Appellants in the Court of

Appeals, hereby petition for a writ of certiorari to review the

judgment of the United States Court of Appeals for the Fifth

Circuit in Houston Police Officers’ Union et al. v. City of

Houston, Texas, Fifth Circuit No. 01-21117 (April 29, 2003).

OPINIONS BELOW

The Court of Appeals’ opinion is reported at 330 F.3d 298

(Sth Cir. 2003) and is reproduced as Appendix A to this

certiorari petition. The Judgment of the Court of Appeals,

entered on April 29, 2003, is reproduced as Appendix B.

Mandate issued on May 21, 2003.

The District Court’s opinion and order on Summary Judg-

ment was issued on September 26, 2001 but was not reported.

It is reproduced as Appendix C. The Final Judgment of

the District Court, dated September 25, 2001 and entered

September 26, 2001, is reproduced as Appendix D.

JURISDICTIONAL St TEMENT

The Court of Appeals’ Opinion and judgment were entered

on April 29, 2003. The jurisdiction of this Court is invoked

pursuant to 28 U.S.C. § 1254(1). No petition for rehearing or

hearing en banc was filed.

STATUTES AND REGULATIONS INVOLVED

This case involves the construction of the 1985 Amend-

ments to the Fair Labor Standards Act of 1938, 29 U.S.C.

§ 201 et seg. (“FLSA”), codified in 29 U.S.C. § 207(0), and

the relevant implementing regulations thereto, codified in 29

C.F.R. §§ 553.20-553.28.

The 1985 Amendment to Section 7 of the FLSA is repro-

duced as Appendix E. The implementing regulations to the

FLSA promulgated by the Secretary of Labor are reproduced

as Appendix F.

STATEMENT OF THE CASE

This case presents the question of whether an employer

may deny a request to use accrued compensatory time under

the 1985 Amendments to the Fair Labor Standards Act, 29

U.S.C. § 207(0), pursuant to a system under which the em-

ployer grants time off after the time off requested by the

employee but within a reasonable period (employer desig-

nation) or whether the employer rather must grant the specific

time off requested by the employee unless doing so would

cause undue disruption (employee choice).

From 1998 until adoption of a Meet and Confer agreement

on July 1, 2001, the City of Houston operated under an

employer designation system for use of accrued compen-

satory time, also known as a red-book system. This was the

system reviewed by the Fifth Circuit. Since signing the

July 1, 2001 Meet and Confer agreement, the City has

operated under an employee choice system for use of accrued

compensatory time. The Meet and Confer agreement is re-

produced as Appendix G. At issue in this case is entitlement

to back pay damages from June 15, 1997 to July 1, 2001,

attorneys fees, and the future rule for use of accrued com-

pensatory time in Texas, Mississippi and Louisiana.

Under the employer designation system in place until

July 1, 2001, each unit of the police department maintained a

“red book” in which officers scheduled to be off on regular

days off, vacation, sick time, injury leave, training or comp

time were listed for each day. The City applied a pre-set limit

on the number of officers who were permitted to be off on a

given day. The limit was not based on a review or analysis of

the needs of the particular day and the possibility of

disruption of services on that day, but rather on each unit shift

commander’s estimate of the unit’s long-term manpower

needs. An officer wanting to use accrued compensatory time

was required to sign the red book for the requested day; if the

red book’s time-off log had not reached the pre-set limit, the

officer would receive his requested time off.

If the pre-set limit had been reached, the time off was

denied. The procedure involved no efforts at operational

alternatives to denial, such as calling in replacements from

regularly scheduled days off, vacation or training, and did not

allow the payment of replacements at overtime rates. Nor did

it provide that, if the requesting officer were able to find a

willing and qualified substitute who required overtime pay to

work, the Department would grant the requested time off and

have the qualified substitute meet the staffing need. Under

this system, no effort was made to assess whether any aspect

of the police department’s operations would be disrupted by

granting the requested day off.

Dr. Richard Jeanneret, a consultant to the City and an

expert witness, testified based on data collected under his

supervision that “for the most part, an employee who is elig-

ible for compensatory time off is able to obtain approval for a

specific time period requested without difficulty” and that

“requests to use comp time off’ were “not frequently denied.”

The Fifth Circuit upheld the City’s system as described by

Jeanneret, endorsing the employer designation system over

the employee choice system. It held that Section 207(0)

“does not require a public employer to authorize comp-time

use as specifically requested by an employee (subject to the

undue disruption clause), but instead requires that the comp

time be permitted within a reasonable period after the

employee requests its use.” 330 F.3d 298 (App. A at 9a).

REASONS FOR GRANTING THE WRIT

The United States Court of Appeals for the Fifth Circuit

has entered a decision that directly conflicts with the

approach taken by the U.S. Department of Labor and by other

federal courts. In Aiken v. City of Memphis, 190 F.3d 753

(6th Cir. 1999), a divided Sixth Circuit Court of Appeals

ruled that the “timely request” requirement and its deference

to agreements between the parties subsumed the “undue dis-

ruption rule” and that a minimum staffing level system could

be used. In Aiken, a strong dissent by Judge Ryan pointed out

that the Court acted without the benefit of a Department of

Labor interpretation of the rule in question and that the

“timely notice” and “undue disruption” rules were separate:

The district court failed to come to grips with this

argument, stating only that “the City could have allowed

the officer the time off by paying another officer

a ee eee Sa eee

overtime compensation to work in the requesting

officer’s place [, but] as general policy, the Division

declined to call in officers on an overtime basis in order

to permit another officer off for compensatory time.”

Aiken v. City of Memphis, 985 F. Supp. 740, 745 (W.D.

Tenn. 1997). The district court then observed that a

denial of compensatory time off for that reason “only

occurred occasionally and was not routine.” /d. The

plaintiffs claim it occurs all the time.

Instead of resolving this difficult, mixed question of fact

and law, the district court merely held as the majority

| Opinion in this court does, that the entire issue is gov-

erned by the collective bargaining agreement between

the parties, and the collective bargaining agreement has

a provision as to the reasonable period within which

time off may be requested. The district court’s rea-

soning, although to me rather abstruse, apparently is that

if an officer doesn’t make a request for comp time early

enough to assure that his replacement need not be paid

time-and-a-half, then the officer will not have requested

his time off within a reasonable period. The problem, of

course, with that sort of reasoning is that it conflates the

concept of the reasonable period within which the day

off must be requested, and whether it is an undue

disruption of the police department’s operations to per-

mit the time off to be taken. Thus, the plaintiffs’ claim

that the logbook is being declared full for a forbidden

reason is never directly engaged.

The majority opinion likewise dodges the problem

simply by declaring that the whole issue is governed by

the collective bargaining agreement, and the majority is

“loath to interfere with [the] agreement.”

To me, that answer, like the district court’s answer, is no

answer at all. The district court made a factual finding

that “as a general policy, the Division declined to call in

officers on an overtime basis in order to permit another

officer off for compensatory time.” Aiken, 985 F.Supp.

at 745. In my opinion, this policy is precisely the

practice the Department of Labor contemplated, and

sought to forbid, when it declared that it would not be an ~

undue disruption for an employer to ask one employee

to work overtime in order to grant another employee

time off.

I would reverse the judgment of the district court with

respect to this issue only. As to the remaining issues in

the case I concur in the majority opinion.

190 F.3d at 764-65.

Moreover, the same question addressed by the Fifth Circuit

and by Aiken is currently before the Sixth Circuit, awaiting

oral argument in Beck et al. v. City of Cleveland, Case No.

02-3669. The conflict between the Fifth Circuit decision

below and Aiken itself appears to create a conflict between

the Circuits. However, Petitioners believe that the upcoming

Sixth Circuit decision will intensify the conflict between the

Circuits. The primary purpose of this petition therefore is to

preserve the issue pending the Sixth Circuit’s issuance of

its decision.

Even before the Sixth Circuit has issued its upcoming

decision, however, the result of the Fifth Circuit’s decision is

that Americans are subject to different rules governing the

use of compensatory time under the FLSA based solely upon

the jurisdiction in which they happen to reside. Americans

who, as residents of Texas, Louisiana or Mississippi, are

within the Fifth Circuit’s jurisdiction, are now denied the use

of their accrued compensatory time pursuant to a rule com-

pletely different from the rule applied in other jurisdictions.

An American residing within the Fifth Circuit’s juris-

diction will have her request to use comp time dec*ded under

the employer designation rule, an approach that permits the

request to be denied if the employer allows her to take time

off within a reasonable period after the specific time off she

requested, even if granting the specific time off requested

rere ae

would not cause any undue disruption. Americans in other

jurisdictions, however, will be granted the specific time off

they request unless granting the specific time would cause

“undue disruption” to the employer’s activities because, while

the details of the approaches taken by the courts in these other

jurisdictions differ slightly, a// of these other jurisdictions

reject the employer designation approach endorsed by the

Fifth Circuit and adopt instead the employee choice system.

Furthermore, the U.S. Department of Labor supports the

employee choice rule. Under the Department of Labor’s

approach, an employer need only grant timely requests, and

the regulations make clear that generally forty-eight hours

would be timely. However, the parties may agree as a part of

the comp time agreement to some other period. DOL’s

regulations provide that whether a request has been granted

within a reasonable period of time is determined by the

custom and practice in the work place.' Such practices

include, but are not limited to, (A) The normal schedule of

work; (B) Anticipated peak workloads based on past experi-

ence; (C) Emergency requirements for staff and services; and

(D) The availability of qualified substitutes.”

Second, and independently, the system must provide that

compensatory time requests may be denied on the basis that

granting a specific request for time off will “undiily dis-

rupt” the employer’s operation or delivery of services.’ The

regulation provides:

When an employer receives a request to use com-

pensatory time off, it shall be honored unless to do so

would be “unduly disruptive” to the agency’s operations.

Mere inconvenience to the employer is an insufficient

basis for a denial of compensatory time off. For an

'29 C.F.R. § 553.25 (b-c).

> 29 C.F.R. § 553.25(c)(1)(d).

*29 C.F.R. § 553.25(d).

re ee ee

agency to turn down a request from an employee for

compensatory time off requires that it should reasonably

and in good faith anticipate that it would impose an

unreasonable burden on the agency’s ability to provide

services of acceptable quality and quantity for the public

during the time requested without the use of the

employee’s services.

House Report No. 99-331 states:

Where public employers find that they cannot make

requested time off available even outside of the period of

increased demand that all public service operations

experience in the course of their business, they should

consider allowing employees to cash out requested but

unavailable comp time. For those employees where the

problem of disruption is persistent, comp time should

not be the preferred method of compensation for

overtime work.

A need to find a substitute worker and to pay that worker at

premium rates does not justify a finding of “undue disrup-

tion.” The preamble to the Department of Labor's regulation

on comp time states: “The Department recognizes that

situations arise in which overtime may be required of one

employee to permit another employee to use compensatory

time off. However, such a situation, in and of itself, would

not be sufficient for an employer to claim it is unduly

disruptive.” '

* Id. (citation omitted).

> Application of the Fair Labor Standards Act to Employees of State

and Local Governments, 52 Fed. Reg. 2032 (Jan. 16, 1987); 52 Fed. Reg.

2648-03 (Jan. 23, 1987).

° Id.

sa a ace

Further, in a brief filed in DeBraska v. City of Milwaukee,

131 F. Supp. 2d 1032 (E.D. Wisc. 2000), the Secretary of

Labor explained:

The City also asserts that a change in its comp. time

policy would cause an “undue disruption.” The Secretary

has defined “undue disruption” of the operations of a

public agency to mean “an unreasonable burden on the

agency’s ability to provide services of acceptable quality

and quantity.” 29 C.F.R. § 553.25(d). The City claims

undue disruption of its operations by granting the use of

accrued comp. time without having tried various oper-

ational alternatives, such as calling replacement officers

from other shifts or from other divisions. This could be

done without overtime hours being worked. In some

cases, however, there may be no alternative to requiring

an officer to work overtime hours so that another officer

may utilize accrued comp. time, but the Secretary has

determined, consistent with legislative intent, that having

to work overtime does not, by itself, amount to such a

disruption. Indeed, this is particularly true where the

City could pay the replacement officers in comp. time

and not cash overtime wages. Congress recognized that

only operational disruption, not payroll expense to the

employer, could be a basis for denying an employee the

use of accrued comp. time. Compare 29 U.S.C.

§ 207(0)(5) (“unduly disrupt the operations of the public

agency”) with 42 U.S.C. § 12111(10) (Americans with

Disabilities Act) (“undue hardship means an action

requiring significant difficulty or expense”).

In DeBraska v. Milwaukee, Senior Judge Myron Gordon,

faced with the situation in which the Milwaukee Police

’ Brief of the Secretary of Labor as Amicus Curiae at 19-20, DeBraska

v. City of Milwaukee, 131 F.Supp.2d 1032 (E.D. Wisc. 2000) (No. 96-

C-402).

Department granted or denied requests to use accrued comp

time on the basis of preset minimum staffing levels, wrote:

The regulation suggests that a request for a specific time

period off must be granted in absence of undue

disruption: For an employer to turn down a comp time

request, it must in good faith believe that granting it

would impose an unreasonable burden “during the time

of the request.” The city does not follow this approach. It

denies a request automatically, without considering the

issue of undue disruption, if it would require another

officer to work overtime or a replacement from another

shift or precinct. The city’s contention that it does not

deny such requests but rather grants them by offering an

alternative date is also inconsistent with the regulation’s

use of the phrase “during the requested time.”

I believe the Secretary’s interpretation of the FLSA

comp time provision is more consistent with its regu-

lation. Since that regulation is itself an interpretation of

the FLSA’s ambiguous comp time provision, the regu-

lation is entitled to deference under Chevron.

The regulation discussed above could still be clearer,

however, and the Secretary’s preamble to the regu-

lations, opinion letter and amicus brief eliminated any

remaining ambiguity.®

Judge Gordon, therefore, held that the City’s administration

of its comp time system does not comply with § 207(0)(5).

The court then distinguished the Sixth Circuit’s plurality

opinion for the reasons stated in the Aiken dissent by Judge

Ryan.

On September 6, 2002, District Judge Charles Clevert

entered a final order in DeBraska.’ The final order incor-

* 131 F.Supp.2d at 1035-36 (citing, 52 Fed. Reg. 2012, 2017 (1987)).

” DeBraska v. Milwaukee, Order Approving Final Settlement Agree-

ment for Judgment and Dismissal and Final Judgment, Case No. 96-C402

(E.D. Wisc. 2002).

porated and adopted as fair and reasonable an agreement of

the parties to revise the City’s system with regard to access to

compensatory time. The new system requires that replace-

ment officers, even those requiring overtime pay, be used

prior to any determination of “undue disruption” and does not

allow a refusal of a request to take compensatory time off on

the basis of pre-set minimum staffing levels. The Court states

in the final order:

[T]he Administrator of Department of Labor’s Wage and

Hour Division informed the Court on August 12, 2002,

that “the steps that the City has committed to take in the

settlement agreement to enable officers to use requested

compensatory time off comply with the requirements of

section 207(0) of the FLSA and the implementing

regulations at 29 C.F.R. § 553.25.”!°

Again, in Canney v. Town oj Brookline, 2000 U.S. Dist.

16279 (D. Mass. October 9, 2000) (App. I), the question

before the court was whether the police department could

utilize a system under which the department denied an offi-

cer’s request to take a particular day off as accrued com-

pensatory time when granting the requested day off would

require the employer to pay another officer at an overtime

rate to work in the requesting officer’s stead. This court, too,

endorsed the employee choice rule. It held that the em-

ployer’s system violated the FLSA because Section 207(0)

requires the employer to grant the employee’s requested day

off unless the grant of that particular day off would result in

undue disruption, and the payment of overtime does not

constitute an undue disruption.

As in DeBraska and Canney, the court in Long Beach

Police Officers Assn. v. Luman, CV 99-13090 FMC (JWJx)

(C.D. Cal. May 10, 2001) (App. J), reviewed—and rejected—

a system pursuant to which the employer denied employee

10 I.

requests for specific compensatory time off without attempt-

ing alternatives that would allow the employer to grant the

requested time off and still meet the agency’s operational

needs. The Long Beach police department did not try to find

substitutes to cover for a requesting officer and it did not

permit the requesting officer to find a substitute to work on

the day for which he had requested use of compensatory

leave. The court concluded that this employer designation

system violated Section 207(0).

In Meyer v. City of Raleigh, 5:99 CV 324BO(3) (E.D.N.C.

August 10, 2001) (App. K), Chief United States District

Judge Terrence W. Boyle, ruled similarly:

This Court agrees that maintaining minimum employ-

ment levels is crucial to ensuring safety and order in the

City of Raleigh. However, to comply with the “undue

disruption” standard, the City must turn down comp time

requests, only when granting them would impose the

unreasonable burden “during the time requested.” See 29

C.F.R. §553.25(d). Although the applicable regulation is

ambiguous as to what constitutes an unreasonable or

undue disruption, the Secretary’s preamble to the inter-

preting regulation clarifies its meaning. The preamble

states that:

situations may arise in which overtime may be

required of one employee to permit another employee

to use compensatory time off. However, such a

situation, in and off itself, would not be sufficient for

an employer to claim that it is unduly disruptive. 52

Fed. Reg. 2012, 2017 (1987)...

This Court finds the Secretary’s interpretations persua-

sive and holds that, because Defendant is unwilling to

substitute officers who may need to be paid overtime to

grant an officer’s comp time request, it thereby denies

requests when doing so would not impose undue

hardship. It is therefore possible for the City to grant

comp time requests, even when the log book is full,

without causing staffing levels to fall below the critical

level. To do this the City need find replacement officers

for the requesting officers and may, in some cases, be

required to pay overtime to such replacement officers.

However, to so accommodate its officers would not

impose “undue hardship” on the City." —_—

Similarly, under Alexandria. Coalition of Police, Local 5,

1.U.P.A. et al. v. City of Alexandria, CA 01-1617-A (E.D.Va.

March 22, 2002) (App. L), an employee’s choice to take

specific time off in compensatory leave must be granted even

if that requires paying another employee overtime to work in

the requesting employee’s place. Only if granting the spe-

cific request would cause undue disruptions to the agency’s

operations may an employer refuse to grant an employee’s

choice of compensatory time off.

See also D’Camera v. District of Columbia, 693 F. Supp.

1208 (D.D.C. 1988) (“D’Camera I’); D’Camera v. District of

Columbia, 722 F. Supp. 799 (D.D.C. 1989) (“D’Camera IT’);

Kimpel v. Williams, CV. 93-3341-GHK (RNBx) (C.D. Cal.

1999) (Appendix H); Hoff v. Park, CV 98-10245 GHK

(RNBx) (C.D. Cal. 1998).

For Americans residing in all of the jurisdictions discussed

above, requests for compensatory time off must be decided

under an employee choice rule, pursuant to which the specific

time off requested by the employee must be granted absent

undue disruption to the employer. Furthermore, the U.S.

Department of Labor applies the employee choice rule in all

jurisdictions other than those within the Fifth Circuit. Only

Americans residing within the Fifth Circuit have their comp

time requests decided under an employer designation rule that

allows their requests to be denied as long as the employer

allows them to take time off sometime “within a reasonable

period” of the specific date requested.

'' 5:99 CV 324B0(3) at 20-21 (App. K at 107a-108a).

When, as is likely, the Sixth Circuit issues a new decision

on this issue that endorses the employee choice rule, the split

will be intensified. At that point, certiorari should be granted

to resolve that split.

However, even absent a new conflicting Sixth Circuit

decision, certiorari should be granted to resolve the critical

question of which rule governs the use of accrued com-

pensatory time off. The manner in which an American is able

to exercise his or her rights under a federal statute such as the

FLSA should not be determined by something as arbitrary

as where the individual happens to reside. Every public

employee’s use of accrued compensatory time is governed by

a single federal statute; the rule controlling whether the

employee’s request to use accrued time will be denied should

also be the same across the country. Grant of certiorari in this

case will ensure that Americans who serve as_ public

employees will be subject to the same rules controlling their

use of accrued compensatory time off regardless of where

they may reside.

CONCLUSION

For the foregoing reasons, the Petition for Certiorari should

be granted.

Respectfully submitted,

MICHAEL T. LEIBIG *

MARGO PAVE

ZWERDLING, PAUL, LEIBIG, KAHN

& WOLLY, P.C.

1025 Connecticut Avenue, N.W.

Suite 712

Washington, D.C. 20036-5420

(202) 857-5000

ROBERT A. ARMBRUSTER

HOUSTON POLICE OFFICERS’ UNION

Office of Legal Counsel

1600 State Street

Suite 200

Houston, Texas 77007

(832) 200-3420

ROBERT J. THOMAS

ROBERT J. THOMAS, P.C.

1302 Waugh, No. 826

Houston, Texas 77019-4944

(281) 924-3019

* Counsel of Record Counsel for Petitioners

APPENDICES

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

[Filed April 29, 2003]

No. 01-21117

HOUSTON POLICE OFFICERS’ UNION; HANS MARTICIUC;

ANDREA BURKE; STEVEN CAIN; RICHARD HAHN; MICHAEL

LUMPKIN; SHAWN PALIN; CLYDE ROOKE; STEVEN

MURDOCK; EIGHT HUNDRED EIGHTY-NINE ADDITIONAL

CONSENTERS,

Plaintiffs-Appellants,

versus

CITY OF HOUSTON, TEXAS,

Defendant-Appellee.

Appeal trom the United States District Court

For the Southern District of Texas

Before JONES, SMITH, and SILER,” Circuit Judges.

EDITH H. JONES, Circuit Judge:

The principal question raised in this appeal is whether

section 207(0)(5) of the Fair Labor Standards Act (“FLSA”)

requires a public agency to allow its employees the use

of accrued compensatory time on those days specifically

requested by the employees, unless to do so would “unduly

disrupt” the agency’s function. In support of this proposition,

appellant Houston Police Officers’ Union and others

(collectively, the “Union” argue that this court must defer to

* Circuit Judge of the Sixth Circuit, sitting by designation.

various statements and regulations of the Department of

Labor construing section 207(0)(5). Because the statutory

language is clear, however, deference is inappropriate. The

summary judgment of the district court in favor of the City of

Houston (“City”) is accordingly affirmed.

BACKGROUND

The FLSA requires all employers, including states and

their political subdivisions, to provide overtime compensation

for employees who work more than 40, hours per week. 29

U.S.C. § 207 (2003). In the private sector, compensation for

excess hours is to be paid at a rate of not less than one-and-a-

half times the employee’s hourly wage. /d. at § 207(a)(1). To

ease the burden on public employers, Congress allows these

entities to provide overtime compensation in the form of

compensatory time (“comp time”) at a rate of one-and-a-half

hours for every excess hour worked. /d. at § 207 (o0)(1). An

employer that would utilize this provision must have a

collective bargaining agreement with its employees or

agreements with individual employees permitting such a

practice. /d. at § 207(0)(2).

During the period covered by this litigation, the Houston

Police Department (“HPD”) administered comp-time usage

by way of a log known as the “Red Book,” one of which was

kept in each of the HPD’s units. A unit’s Red Book listed all

of the officers in the unit who were scheduled, for whatever

reason, to be off-duty on any given day. Each unit had a

predetermined limit on the number of officers who could be

off on a particular day. This limit was based on the shift

commander’s estimate of the unit’s manpower needs. The

primary considerations in formulating this estimate were the

' The parties have stipulated that they have been in agreement since

July 2001 regarding the manner in which accrued comp time is to be used.

Because the Union’s suit is for past damages, the parties’ current agree-

ment does not moot the statutory interpretation question this case presents.

unit’s anticipated workload (based on historical trends), the

unit’s efficiency, and the unit’s ability to tolerate disruption in

its operations. In general, the Shift Commanders (with

approval from Division Commanders) limited the spaces in

the Red Book to ten percent of the unit’s staff. An officer

wishing to use his accrued comp time had to sign his name in

his unit’s Red Book for the day(s) he wished to take off. If the

Red Book’s limit for the requested day had not been reached,

the officer received his requested comp time.

The Union was displeased with this system, as it could

frustrate an officer’s attempt to choose the dates on which he

would use comp time. instead of allowing an individualized

assessment of the inconvenience that an officer’s absence on

a particular day might place on his unit, the Red Book system

imposed an inflexible ten-percent limit on all days. Forced by

the department to work overtime at the HPD’s conve-

nience, members of the Union would have preferred to use

comp time for their convenience.

The Union accordingly sued the City in federal court,

alleging, inter alia, that the HPD’s Red Book system violated

the FLSA by failing to provide individualized assessments of

the disruption that comp-time requests over and above the

ten-percent limit might cause to the operations of the HPD.

Upon receiving cross-motions for summary judgment, the

district court entered summary judgment for the City, hold-

ing that the FLSA does not grant the employees of public

agencies the right to use their accrued comp time on days of

their own choosing. The Union appealed.

STANDARD OF REVIEW

This Court reviews the grant of summary judgment de

novo, applying the same standards as the district court.

Sherrod v. American Airlines, Inc., 132 F.3d 1i!2. 1119 (Sth

Cir. 1998); McInnis v. Alamo Cmty. Coll. Dist. 207 F.3d 276,

279 (Sth Cir. 1998). Summary judgment under Rute 56 of the

Federal Rules of Civil Procedure is appropriate only “if. . .

the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, 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.”

FeD. R. Civ. P. 56(c).

A fact is material if it could affect the outcome of the

lawsuit, and a dispute about a material fact is genuine if the

evidence is such that a reasonable jury could return verdict

for the non-moving party. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986). Reviewing courts must look at the

evidence and draw all inferences therefrom in a light most

favorable to the non-moving party. Hibernia Nat'l Bank v.

Carner, 997 F.2d 94, 97 (Sth Cir. 1993).

DISCUSSION

Two issues are raised on appeal: what is the proper

interpretation of section 207 (0) (5), and whether the HPD

correctly applied the provision to its operations. We discuss

each issue¢ in turn.

I. Section 207(0) (5)

The FLSA provides, in pertinent part, that:

[aJjn employee of a public agency which is a State,

political subdivision of a State, or an interstate gov-

ernmental agency—

(A) who has accrued compensatory time off... .

and

(B) who has requested the use of such com-

pensatory time,

shall be permitted by the employee’s employer to use

such time within a reasonable period after making the

request if the use of the compensatory time does not

unduly disrupt the operations of the public agency.

29 U.S.C. § 207(0)(5}. The litigants offer two conflicting

interpretations of this provision. The City contends that the

phrase “within a reasonable period after making the request”

obliges an employing public agency to authorize an em-

ployee’s use of accrued comp time within a certain temporal

range (a “reasonable period”) following the date on which the

request is made. Comp time may be delayed, nonetheless, in

the event that the employee’s desired usage would “unduly

disrupt” the agency’s operation.

Without gainsaying the plausil ility of the City’s interpre-

tation, the Union advances another reading of this require-

ment: The employing agency must allow the employee’s use

of comp time on the day specifically requested, unless it

would “unduly disrupt” the agency’s operation. The Union

fortifies its interpretation by arguing that it is advocated by

the Department of Labor in at least three separate and legally

relevant venues: (1) the statute’s implementing regulations,

Application of the Fair Labor Standards Act to Employees of

State and Local Governments, 29 C.F.R. § 553 et seq. (esp.

§ 553.25), which the Department of Labor enacted in 1987,

pursuant to formal notice-and-comment rulemaking (“Regu-

lations”); (2) an opinion letter produced by the DOL’s Wage

and Hour Division in 1994, 1994 WL 1004861 (“Opinion

* See 29 C.F.R. § 553.25(d): “When an employer receives a request for

compensatory time off, it shall be honored unless to do so would be

‘unduly disruptive’ to the agency’s operations. Mere inconvenience to the

employer is an insufficient basis for denial of a request for compensatory

time off. (See H. Rep. 99-331, p. 23.) For an agency to turn down a

request from an employee for compensatory time off requires that it

should reasonably and in good faith anticipate that it would impose an

unreasonable burden on the agency’s ability to provide services of

acceptable quality and quantity for the public during the time requested

without the use of the employee’s services.”

Letter”);” and (3) the amicus brief filed by the Secretary of

Labor in an action resembling the instant case, DeBraska v.

City of Milwaukee, 131 F. Supp.2d 1032 (E.D. Wisc. 2000)

(“Amicus Brief’)."

When construing a federal statute that has been interpreted

by an administrative agency, courts look first to the language

of the statute. If Congress has “directly spoken to the precise

question at issue,” i.e. “[i]f the intent of Congress is clear,

that is the end of the matter; for the court, as well as the

agency, must give effect to the unambiguously expressed

intent of Congress.” Chevron U.S.A. Inc. v. Natural Res. Def.

Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778 (1984). If

the statute is ambiguous, however,

the court does not simply impose its own construction on

the statute, as would be necessary in the absence of q

administrative interpretation. Rather, . . . the question for .

the court is whether the agency’s answer is based on a 4

permissible construction of the statute.

Id. at 843. The Chevron doctrine thus requires a litigant, such

as the Union, who would have a court defer to an agency’s

> The Opinion Letter states, “It is our position, notwithstanding [an

agreement between the Police Officers Association and the City] that an

agency may not turn down a request from an employee for compensatory

time off unless it would impose an unreasonable burden on the agency’s

ability to provide services of acceptable quality and quantity for the public

during the time requested without the use of the employee's services. The

fact that overtime may be required of one employee to permit another

employee to use compensatory time off would not be a sufficient reason

for an employer to claim that the compensatory time off request is unduly

disruptive” (emphasis added).

| * Amicus Brief at 7 (“In providing that an employee shall be permitted

to use comp. time ‘within a reasonable period after making the request,’

Congress obviously intended to prescribe a minimum notice requirement,

not a maximum time after the date of the leave request that comp. time

may be used.”).

regulations, to jump two hurdles. He must show that the

statute is in fact ambiguous regarding the question at bar, and

he must demonstrate that the regulation’s statutory inter-

pretation, whether or not preferable, is permissible. Before

considering the various statements from the Department of

Labor, then, the statute must be carefully reviewed.

The text of § 207(0)(5) plainly defines the period between

the date the employee submits his request and the date the

employer allows the employee to use the comp time: the

employee “shall be permitted . . . to use such [comp] time

within a reasonable period after making the request.” 29

U.S.C. § 207(0)(5). As the City suggests, mandating a

“reasonable period” for use of comp time is different from

mandating the employee’s chosen dates. The language offers

a span of time to the employer, the beginning of which is the

date of the employee’s request.

The Union responds in two ways to this grammatically

appealing interpretation. First, the Union asserts that “such

time” means “the specific time requested by the employee.”

This is untenable, however, because within § 207(0)(5)

“time” consistently refers to the number of compensatory

hours to which an employee is entitled, not, as the Union

would have it, to the date or dates on which an employee asks

to be let off work. Words are ordinarily interpreted to have a

uniform meaning in a given statutory context.

The Union also argues that “[t]he interplay between the

reasonable period’ and ‘unduly disrupt’ clauses generates

ambiguity within the language of the statute.” While the

Union concedes that it is possible that the “reasonable period”

clause refers only to the time between request and comp-time

consumption, the presence of the “unduly disrupt” clause

raises the possibility that the “reasonable period” clause

refers, rather, to the time between intended and actual date of

comp-time consumption. We understand the interaction

between these two clauses quite differently. Instead of

obscuring the proper object of the “reasonable period” clause,

the “unduly disrupt” clause serves to clarify its obvious

meaning. The “reasonable period” clause imposes upon the

employer the obligation to facilitate the employee’s timely

usage of his accrued compensatory time. The “unduly

disrupt” clause suggests conditions, however, that would

release the public employer from the previously imposed

condition. The statute, thus construed, reflects a balance

between obligation and exemption.”

Finally, according to the Union, the City’s interpretation

expands the impact of the “reasonable period” clause while

leaving the “unduly disrupt” clause without meaning. Thus,

the Union contends, when an employee makes a reasonably

timely request for a specific period of comp-time leave, the

employer must grant it unless doing so would unduly disrupt

the agency’s operation for each such request. We have just

explained how a straightforward reading of the provision

balances obligation and exemption. But even more to the

point, the Union’s explanation requires linguistic contortion

where it is obvious that Congress could have chosen much

simpler language to express the Union’s desired policy. Had

Congress intended to do as the Union suggests, alternative

Statutory language is not hard to envision. Congress might

have worded subparagraph (B) to refer to an employee “who

has requested with reasonable advance notice the use of

such compensatory time,” while eliminating the “reasonable

period” language from the latter part of the sentence. Con-

* Though there is no need to rest our argument on the cushions of

armchair legislative history—the logic found in the statute’s plain text is

sufficient for the question at hand—the events compelling Congress to

enact this statute strongly suggest the prudence of construing these two

phrases as a compromise between the interests of public agencies and

their employees. For an exposition of such, see Justice Thomas’s

discussion in Christensen v. Harris County, 529 U.S. 576, 578-580, 120

S.Ct. 1655 (2000). See also Moreau v. Klevenhagen, 508 U.S. 22, 25-28,

113 S.Ct. 1905 (1993).

gress might alternatively have substituted “as requested” for

“within a reasonable period” after making the request. That

Congress did not forthrightly choose such obvious means

to describe employee rights undermines the Union’s

interpretation.

For all these reasons, we conclude that the statute does not

require a public employer to authorize comp-time use as

specifically requested by an employee (subject to the undue

disruption clause), but instead requires that the comp time be

permitted within a reasonable period after the employee

requests its use. Although this conclusion ends the analysis

for Chevron purposes, it is useful to address the errors in the

Union’s reliance on DOL interpretations referenced above.

First, the regulation implementing section 207(0) (5), supra

n.2, simply does not address whether the statute mandates an

employee’s specifically requested dates for comp time. The

regulation highlights that actual disruption, rather than “mere

inconvenience,” be caused to the agency as a justification for

denying comp-time use, but it neither addresses case-specific

determinations nor prohibits an agency from determining, as

HPD has done, that an absentee rate exceeding ten percent of

a unit’s staff actually jeopardizes the department’s ability to

protect the citizens of Houston.° While the regulation would

be entitled to Chevron deference if it spoke to the issue at

hand, and if the statute were ambigious, that case is not

before us. See Christensen, 529 U.S. at 587-88, 120 S.Ct.

at 1663.

The Union’s additional, administrative crutches include the

DOL’s 1994 Opinion Letter, supra n.3, and its Amicus Brief

filed in federal district court litigation, supra n.4. Contrary to

the Union’s view, we are not obliged to defer to these

interpretations of section 207(0) (5) under Auer v. Robbins,

° We emphasize, moreover, that the Red Book limits were in practice

ameliorated by an appeals process. See infra n. 9.

10a

519 U.S. 452, 117 S.Ct. 905 (1997), as that case concerns

judicial deference to administrative interpretations of the

agency’s own ambiguous regulations. Auer, 519 at 461, 117

S.Ct. 911; see also Christensen, 529 U.S. at 588, 120 S.Ct. at

1662 (referring to “Auer deference”); Moore v. Hannon Food

Service, Inc., 317 F.3d 489 (5th Cir. 2003).’ Nor is it clear,

after United States v. Mead Corp., 533 U.S. 218, 121 S.Ct.

2164 (2001), whether these pronouncements are sufficiently

authoritative to merit Chevron deference. That knotty issue

may be pretermitted, however, because neither the Opinion

Letter nor the Amicus Brief persuades us that our construc-

tion of section 207(0)(5) is wrong or that the provision is

ambiguous, as would be required for Chevron deference.

The Union also relies on court opinions that have perceived

ambiguity in section 207(0)(5), most notably a district court

in DeBraska v. City of Milwaukee, 131 F. Supp.2d 1032 (E.D.

Wisc. 2000), but also Judge Ryan’s dissent from a Sixth

Circuit opinion in Aiken v. City of Memphis, 190 F.3d 753

(6th Cir. 1999). These cases fail to advance the Union’s

argument, not only because they are not legally binding, but

also because they do not address the threshold issue of

statutory ambiguity.®

’ The City’s reliance on Christensen wholly to forestall our deferring to

these authorities is equally misplaced. See Barnhart v. Walton, 535 U.S.

212, 220-22, 122 S.Ct. 1265, 1271-72 (emphasizing that agency

interpretations reached through less formal means than notice and

comment rulemaking are not “automatically deprive[d]” of Chevron

deference, and “[if this Court’s opinion in Christensen, suggested an

absolute rule to the contrary, our later opinion in [Mead] denied the

suggestion” (citations omitted)).

* In DeBraska, the most the court provides in defense of its conclusory

assertion that “[t]he language of the statute is somewhat ambiguous’’ is its

ex post facto judgment that “the statute could have been better written to

reflect either one of the competing interpretations.” 131 F. Supp.2d at

1034. Nor does Judge Ryan’s dissent, despite a thoughtful discussion of

the application of the DOL Regulations to the case before that court, give

lla

II. Application of Section 207(0) (5)

The Union also attempted to adduce sufficient summary

judgement evidence to suggest that, under the HPD’s “Red

Book” System, complainant police officers were unable to

use their accrued comp time within a “reasonable period after

making the request.” After a careful review of the record, this

court concludes, as did the district court, that the Union has

failed to create a geuine issue of material fact on the HPD’s

alleged misapplication of section 207(0)(5).

The principal evidence to which the Union points consists

of the following: (1) the deposition of Joe L. Breshears (HPD

Executive Assistant Chief); (2) HPD General Order 300-07,

September 18, 1995; (3) the data and testimony of Dr. P.R.

Jeanneret (HPD expert witness); and (4) the memorandum of

G.S. Stewart (Assistant Chief, South Patrol Unit, HPD).

These documents do not, either individually or collectively,

present any evidence whatsoever that the HPD’s Red Book

System prevented the city’s police officers from using

accrued comp time within a “reasonable period after making

the request.” The most that can be found here is some slight

evidence of the fact that certain forms of police work,

particularly patrol duty, are ill-suited to the removal and

substitution of non-fungible officers.

To review the evidence briefly: In the deposition testimony

of Chief Breshears can be found a detailed description of the

manner in which the Red Book policy was formulated and

administered; in General Order 300-07 there is a formal

the slightest consideration to the question of the statute’s ambiguity.

Finally, the Union cites three other cases in which federal district courts

found the statute to be ambiguous. Meyer v. Raleigh, 5:99 CV 324 BO(3)

(E.D.N.C. Aug. 10, 2001); Long Beach Police Ass'n v. Luman, CV 99-

13090 FMC (JMJX) (C.D. Cal. May 10, 2001); Canney v. Brookline,

2000 U.S. Dist. 16279 D. Mass. October 19, 2000). The Union did not

provide copies of these difficult-to-access decisions, and they are district

court cases, from other circuits, that do not bind us.

12a

policy statement of the same; and in Chief Stewart’s

memorandum are the results of a poll, saying, once again, that

comp time could be taken on a first-come, first-served basis.

The sharpest version of all, of course, is the information

provided by Dr. Jeanneret, as his data and testimony were

prepared by the HPD in response to this suit. In none of

these reports is there the slightest hint that the Red Book

system, either in theory or practice, violated the FLSA as

interpreted above.”

Nonetheless, one of the Union’s points calls for a more

substantial response. This is that officers on patrol duty had

experienced rather more substantial delays in their ability to

consume their accrued comp time.

The report prepared by Dr. P.R. Jeanneret concluded with

the following statement: “For the most part, an employee who

is eligible for compensatory time off is able to obtain

approval for a specific time period requested without

difficulty.” Dr. Jeanneret goes on, however, to note an

exception to this general rule:

The exception to this conclusion occurs in Patrol and

especially those divisions that have a high volume of

calls for service. The divisions with high volumes of

service calls where operations have been using below

minimum staffing levels presented circumstances when

not everyone might be able to obtain the specific com-

pensatory time off they had requested. These relatively

limited circumstances arise when the red book slots are

filled and when making exceptions would present the

” Even more surprising, the summary judgment evidence in this case

also fails to sustain the Union’s own interpretation of the FLSA. In Chief

Breshears’ testimony and Dr. Jeanneret’s report there is a strong

suggestion that the HPD did a more-than-adequate job of responding, via

an informal appeals system, to officers’ individual requests to override the

Red Book’s theoretically mandatory ten percent absentee quota.

13a

division with safety concerns and unacceptable increases

in response time to calls for service.

While the Union does not appear to dispute Dr. Jeanneret’s

basic conclusion, it argues that his qualification of the general

rule is significantly understated. What he fails to mention, the

Union argues, is that of the over 5000 police officers in the

HPD, approximately 40% work in patrol. The exception thus

swallows the rule.

The Union’s clarification does not suffice to create a fact

issue concerning HPD’ s violation of section 207(0)(5). First,

the proposition to which this factum constitutes an exception

is not an exception to the assertion that Houston police

officers were unable to take compensatory time “within a

reasonable period after making the request.” It is apposite,

rather, to the proposition that officers are “able to obtain

approval for a specific time period requested without

difficulty.” As has been discussed, the FLSA does not grant

such a right. The HPD’s denial of such an option to patrol

officers cannot, therefore, be actionable.

We also note, moreover, that this exception would be void

of legal significance even if the Union’s reading of the FLSA

were correct. This is so because requiring comp-time usage-

on-demand would, as Dr. Jeanneret’s uncontroverted analysis

concludes, “unduly disrupt” the operations of the HPD. As

he said:

Such understaffing would severely impact the opera-

tional efficiency and effectiveness of HPD and under-

mine the Department’s continued efforts to provide the

required levels of service within the budget allocations

provided in the City of Houston.

In other words, local neighborhoods could be seriously

adversely affected when too many regular duty officers are

off work. The FLSA requires, generally, that officers be

allowed to take comp time within reasonable periods after

14a

making their requests. The burden that this statute places

upon public employers is waived, however, in those

circumstances where compliance would “unduly disrupt the

operations of the public agency.” This balance represents the

statutory compromise between the interests of public agencies

and their employees. Without adequate evidence placing Dr.

Jeanneret’s conclusion of undue disruption into dispute, this

court must conclude, as did the district court, that the Union

has no claim cognizable under section 207(0) (5).

CONCLUSION

The clearly articulated details of § 207 of the FLSA strike a

balance between the employee’s right to use comp time

promptly and the public agency’s need to avoid disruption, a

balance expressed with sufficient clarity to resolve the

interpretive dispute before us. Moreover, the Union’s sum-

mary judgment evidence is insufficient to create a fact issue

over HPD’s alleged misapplication of section 207(0)(5). This

court accordingly affirms the district court’s grant of

summary judgment to the City.

Judgment AFFIRMED.

lSa

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

[Filed Apr. 29, 2003]

No. 01-2!117

D.C. Docket No. H-00-CV-2184

HOUSTON POLICE OFFICERS’ UNION; HANS MARTICIUC;

ANFREA BURKE; STEVEN CAIN; RICHARD HAHN; MICHAEL

LUMPKIN; SHAWN PALIN; CLYDE ROOKE; STEVEN

MURDOCK; EIGHT HUNDRED EIGHTY-NINE ADDITIONAL

CONSENTERS,

Plaintiffs-Appellants,

CITY OF HOUSTON, TEXAS,

Defendant-Appellee.

Appeal from the United States District Court for the

Southern District of Texas, Houston

Before JONES, SMITH, and SILER", Circuit Judge.

JUDGMENT

This cause was considered on the record on appeal and was

argued by counsel.

It is ordered and adjudged that the judgment of the District

Court is affirmed.

* Circuit Judge of the Sixth Circuit, sitting by designation.

l6a

IT IS FURTHER ORDERED that plaintiffs-appellants pay

to defendant-appellee the costs on appeal to be taxed by the

Clerk of this Court.

ISSUED AS MANDATE: MAY 21, 2003

A True copy

Test:

Clerk, U.S. Court of Appeals, Fifth Circuit

By: /s/ [ILLEGIBLE]

Deputy

New Orleans, Louisiana May 21, 2003

17a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

[Filed Sept. 26, 2001]

Civil Action No. H-00-2184

HOUSTON POLICE OFFICERS’ UNION, et al,

Plaintiffs,

VS.

CITY OF HOUSTON POLICE

DEPARTMENT and CITy OF HOUSTON,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending before the Court in the above-referenced action

are Plaintiffs Motion for Partial Summary Judgment (Inst.

No. 33) and Defendant City of Houston’s Cross-Motion for

Summary Judgment (Inst. No. 38). After reviewing the record

and the applicable law, the Court concludes that Plaintiffs

partial summary judgment motion should be DENIED, and

that Defendant’s cross-motion for summary judgment should

be GRANTED.

I. BACKGROUND

In this action for declaratory judgment, brought under the

Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et segq.,

Plaintiffs Houston Police Officers’ Union er al. (collectively

referred to as “HPOU”) sues Defendant City of Houston

(“City”) for alleged unlawful calculation of overtime com-

pensation, use of improper overtime rates, and an overall

intentional failure to pay members of HPOU all proper

compensation due.

18a

Plaintiffs in this case include current and former police

officers employed in the Houston Police Department

(“HPD”) by the City. HPOU is the certified bargaining

representative for the original eight named Plaintiffs and the

other similarly-situated 889 officers in this case, pursuant to

Chapter 143, Subchapter J, § 143.351 of the Texas Local

Government Code. HPD is an official department and agency

of the City, established and authorized by the City to provide

law enforcement services for the City. Defendant City of

Houston is the official government authority responsible for

the provision, organization, management, and operation of

law enforcement within its jurisdiction.

In 1998, officers in the HPOU and the City entered into a

“Meet and Confer Agreement” (“MCA”), which outlines the

terms of the officers’ employment. The MCA reflects the

parties’ effort to develop fair and equitable standards for

wages, hours, and other terms and conditions. In this case, the

terms of the MCA give rise to at one least aspect of HPOU’s

lawsuit against the City; specifically, HPOU complains (a)

that the City’s calculation of pay should include the

equipment allowance that is provided for under the MCA, and

(b) that the City’s scheduling of compensatory time violated

the FLSA. The Court addresses both claims below.

ll. STANDARD OF REVIEW

Under Rule 56(c) of the Federal Rules of Civil Procedure,

summary judgment is appropriate when the pleadings and

record evidence show that no genuine issue of material facts

exists and that, as a matter of law, the movant is entitled to

judgment. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (Sth

Cir. 1994). “[T]he substantive law will identify which facts

are material.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986). Only disputes about material facts will preclude

the granting of summary judgment. Id. In a motion for

summary judgment, the burden is on the movant. Latimer v.

Smithkline & French Lab., 919 F.2d 301, 303 (Sth Cir. 1990).

19a

If the non-movant bears the burden of proof at trial, however,

the movant for summary judgment need not support the

motion with evidence negating the opponent’s case. Instead,

the movant may satisfy its burden by showing that there is an

absence of evidence to support the non-movant’s case. /d.;

Little, 37 F.3d at 1075.

Once the movant makes this showing, the burden shifts to

the non-movant to show that summary judgment is not

appropriate. Little, 37 F.3d at 1075 (citing Celotex Corp. v.

Catrett, 477 U.S. 317, 325 (1986)). “This burden is not

satisfied with ‘some metaphysical doubt as to the material

facts,’ . . . by ‘conclusory allegations,’ . . . by ‘unsubstan-

tiated assertions,’ or by only a ‘scintilla’ of evidence.” /d.

(quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 US. 574, 586 (1986); Lujan v. National Wildlife Fed’n,

497 U.S. 871, 871-73 (1990); Hopper v. Frank, 16 F.3d 92,

97 (Sth Cir. 1994); Davis v. Chevron U.S.A., Inc., 14 F.3d

1082, 1086 (Sth Cir. 1994)). Rather, the non-moving party

must “come forward with ‘specific facts showing that there is

a genuine issue for trial.’” Matsushita, 475 U.S. at 587

(quoting FED. R. Civ. P. 56(e)). In determining whether a

genuine issue for trial exists, the court must view all of the

evidence in the light most favorable to the non-movant.

Richter v. Merchants Fast Moior Lines, Inc., 83 F.3d 96, 98

(Sth Cir. i996) (per curiam); Gremillion v. Gulf Coast

Catering Co., 904 F.2d 290, 292 (Sth Cir. 1990).

Ill. DISCUSSION

As a general matter, the FLSA requires employers,

including states and their political subdivisions, to pay

overtime compensation to employees who work more than

forty hours per reguiar work week. 29 U.S.C. § 207 (1993).

As employers, municipalities such as the City of Houston are

required to compensate their employees for excess hours at a

rate not less than 1% times their hourly wage. 29 U.S.C.

§ 207(a)(1). See Christensen v. Harris County, 529 U.S. 576,

20a

579 (2000) (detailing how Congressional amendments to the

FLSA eventually resulted in the 1’ overtime pay standard

being applied to state employers). Pursuant to various

Congressional amendments to the FLSA, however, public

employers also have the option of paying employees for

overtime by granting them compensatory time, instead of

compensatory pay, at a rate of 1% hours for every hour

worked. 29 U.S.C. § 207(0)(1). See Christensen, 529 USS. at

579 (discussing Congressional amendments that mitigate the

effects of FLSA on states and their political subdivisions).

A. Equipment allowance.

When an employer provides compensatory pay, the FLSA

mandates that such overtime pay be at least 1/2 times the

“regular rate” of the employee. 29 U.S.C. § 207. As the

Supreme Court has recognized, the regular rate is the hourly

rate that the employer pays the employee “for the normal,

non-overtime workweek.” Walling v. Youngerman-Reynolds

Hardwood Co., 325 U.S. 419, 425 (1945); see Lee v. Vance

Executive Protection, Inc., No. 00-1330, 2001 WL 108760, at

*2 (4th Cir. Feb. 8, 2001). Section 207(e) of the FLSA

provides that the “regular rate” comprises “all remuneration

... paid to... . the employee,” except for eight specific types

of payments that are excluded from the regular rate. See

generally 29 U.S.C. § 207(e)(1)-(8).

In this case, one of the terms in the MCA between HPOU

and the City involves an equipment allowance. Specifically,

the fifth paragraph of Article 16 of the MCA states that the

City shall provide each police officer an equipment allowance

that is “payable biweekly”; the purpose of the equipment

allowance is to compensate officers for money spent on

necessary equipment, such as guns, ammunition, pepper

spray, uniform shoes, and the like. Under the equipment

allowance provision, the City pays each police officer either

$46.15 or $70.19 on a biweekly basis; this amount equates to

either $1200.00 or $1825.00 on an annualized basis.

2la

The equipment allowance for each two-week period does

not necessarily reflect the exact expenses made by police

officers in the course of the two weeks, however. Indeed,

police officers are not required to submit receipts to the HPD

or the City showing how much money they actually spend on

equipment in a given period. HPOU further states that no

provision explicitly requires officers to spend their equipment

allowance on items related to their official work as police

officers.

Of controversy in this case is the fact that the City does not

include the equipment allowance in the “regular rate” of its

officers’ pay for the purposes of calculating the officers’

overtime pay. The economic incentives at stake in this case

are clear: the larger the amount categorized as “regular rate,”

the larger the officers’ overtime pay, given that overtime pay

is calculated at 150% the regular rate. As a result, Plaintiff

HPOU now moves for partial summary judgment and argues

that the City’s equipment allowance should be counted as part

of each officer’s regular rate because it does not fall into any

of § 207(e)’s exceptions.

HPOU in particular argues that the equipment allowance is

not a gift; it is not vacation or sick leave or other leave pay; it

is not discretionary, for it is provided for in the MCA; it is not

contributed to, or paid from, a trust or employee benefit plan;

and it is not a premium rate. (Pl.’s Mem. In Support of Part.

Summ. J. at 5.) Moreover, HPOU points out that the

equipment allowance is not calculated as a dollar-for-dollar

reimbursement of any expense an officer incurs within a

given pay period. Rather, according to HPOU, the amount of

the equipment allowance is essentially arbitrary and struc-

tured biweekly simply for the convenience of the payroll

system. The result is that an officer’s particular expenditures

in a given two-week period have no impact whatsoever on the

amount of equipment allowance he receives for that period.

HPOU also points out that the City does not require, and the

22a

officers do not provide, any receipts for the purpose of

calculating an officer’s equipment allowance for a given pay

period. Additionally, HPOU states that the equipment

allowance is taxable income that is not excluded from federal

income tax as a business expense.

In sum, HPOU takes the position that, because the equip-

ment allowance is not specifically included among the

FLSA’s eight exceptions, and because the equipment

allowance operates independently of an officer's expenses

made, the allowance should be included as part of each

officers’ regular rate. Under the City’s current practice of not

including the equipment allowance in the regular rate, HPOU

argues, the officers’ overtime compensation (which, as dis-

cussed above, is based on the regular rate) is incorrectly

calculated. HPOU states that, were the equipment allowance

included, “each officer’s overtime rate would be increased

by 2.2%,” which “would have represented an additional

$1,146,000 in increased overtime [pay] for fiscal year 1999.”

(Pl.’s Statement of Uncontroverted Facts at 4.)

In determining whether the City’s exclusion of the

equipment allowance from the officers’ regular rate violates

the FLSA, or whether the equipment allowance correctly falls

into one of the eight exclusions of § 207(e), the Court at the

outset notes that the FLSA presumes that all remuneration is

to be included in the regular pay rate. See Madison v.

Resources for Human Development, Inc., 233 F.3d 175, 187

(3rd Cir. 2000) (‘“[T]here is a statutory presumption here that

remuneration in any form is included in the regular rate

calculation.”). As discussed above, the FLSA expressly

provides the regular rate of pay “shall be deemed to include

all remuneration for employment paid to, or on behalf of, the

employee” unless it falls under one of the eight specific

exemptions. See 29 U.S.C. § 207(e). Courts have recognized

that exemptions to the FLSA are to be “narrowly construed,

giving due regard to the plain meaning of statutory language

23a

and the intent of Congress.” Gieg v. Howarth, 244 F.3d 775,

776 (9th Cir. 2001); see Lee, 2001 WL 108760, at *3 (holding

that FLSA “exemptions must be narrowly construed”’);

Minizzu v. Stone Container Corp. Corrugated Container Div.

East Plant, 842 F.2d 1456, 1459 (3rd Cir. 1988) (holding

same).

Moreover, courts have also recognized that “the general

rule is that the application of exemption under the [FLSA] is

a matter of affirmative defense on which the employer has the

burden of proof.” Clark v J.M. Benson Co., Inc., 789 F.2d

282, 286 (4th Cir. 1986) (citations omitted) (emphasis added);

see McLaughlin v. McGee Bros Co., Inc., 681 F. Supp. 1117,

1133 (W.D.Y.C. 1988) (citing Clark and holding same); see

also Idaho Sheet Metal Workers, Inc. v. Wirtz, 383 US. 190,

209 (1966) (holding that the employer bears the burden of

establishing an exemption under the FLSA); Gieg, 244 F.3d

at 776 (“[A]n employer who claims an exemption from the

FLSA has the burden of showing that the exemption

applies.”) (citations omitted); Johnson v. City of Columbia,

949 F.2d 127, 130 (4th Cir. 1991) (holding that the burden is

on the employer “to show that it is entitled to the benefits of

th[e] exceptions”).

In its Response and Cross-Motion for Summary Judgment,

the City of Houston argues that the equipment allowance does

fall into one of the eight exemptions of § 207. Specifically,

the City points to the second exemption, which covers “rea-

sonable payments for traveling expenses, or other expenses,

incurred by an employee in furtherance of his employer’s

interests and properly reimbursable by the employer; and

other similar payments to an employee which are not made as

compensation for his hours of employment. . . .” 29 U.S.C.

§ 207(e)(2) (emphasis added). The City moreover directs the

Court’s attention to the Department of Labor’s regulation

24a

that elaborates on the exclusion. As the Department of

Labor explains,

Payments made by the employer to cover such expenses

are not included in the employee’s regular rate (if the

amount reasonably approximates the expense incurred).

Such payment is not compensation for services rendered

by the employee during any hours worked in the

workweek.

If the amount paid as “reimbursement” is dispro-

portionately large, the excess amount will be included in

the regular rate.

29 C.F.R. § 778.217(a), (c) (emphases added). From this

language, the City characterizes the FLSA exemption at issue

as being governed by a de minimis standard: if the allowance

is not disproportionately large compared to the <mployee’s

actual expenses, then the exemption applies. (Def.’s Resp. to

Pl.’s Mot. for Partial Summ. J. and Cross-Mot. for Summ.

J. at 2.).

In its response to HPOU’s partial summary judgment

motion, the City relies on the above language and initially

argues that it is entitled to summary judgment because HPOU

has failed to show that the equipment allowance unreasonably

exceeds the officers’ expenses. While such an argument, at

first blush, fails to appreciate the City’s burden of estab-

lishing the exemption invoked, the Court nonetheless holds

' Although the City relies on the Department of Labor’s regulation, the

City does not demonstrate that this particular regulation has been

“adopted pursuant to [an] explicit grant of rulemaking authority.” Bean v.

Bureau of Alcohol, Tobacco, and Firearms, 253 F.3d 234, 240 (Sth Cir.

2001). As a result, the regulation is merely an interpretive guide. See id.

Nonetheless, the Court finds the Department of Labor’s interpretation

highly persuasive and treats it as such. The Court additionally notes that

HPOU has not argued against the consideration of this regulation.

25a

that the City has carried its burden on the matter. The City

points out that, unlike most metropolitan police departments,

HPD does not issue weapons, ammunition, handcuffs, flash-

lights, pepper spray, or even uniform shoes to its officers for

use in the field. According to the City, HPD examined the

costs involved in providing such equipment and fashioned an

equipment allowance that reasonably approximates the ex-

penses the average officer would incur. (Dep. of M. W.

Thaler at 11, 17, 18; Dep. of Larry Yium at 19, 20.)

The record bears out the HPD’s approximation. In its

Rejoinder on the Pending Summary Judgment Issues, the City

points to the interrogatory answers of numerous police

officers that purport to represent accurately the average

expenses of each plaintiff. For example, in Officer Plaintiff

Anthony Alacantara’s (“Alacantara”) interrogatory answers,

Alacantara detailed his equipment-related expenditures since

November 28,1998 and his annualized spending. In one year,

Alacantara purchased: ammunition for on-duty use; ammuni-

tion for practice purposes; an ASP holder; flashlight batteries;

pepper spray with holder; a copy of the penal code; dress

uniform shoes; duty shoes; dry-cleaning of uniforms; hol-

sters; briefcases; belts; ammunition holders; dress clothes for

plain-clothes work; socks; underwear; and pens. When asked

how much money this equipment cost him on an annual basis,

Alacantara indicated that his annual equipment expenses for

1998 approximated $1920.

The interrogatory answers of Plaintiff Charles Allen

(“Allen”) indicated comparable equipment-related expendi-

tures. Since November 28, 1998, Allen spent money on:

ammunition for on-duty use; duty shoes; dry-cleaning of

uniforms; cell phone use; DRE Pin; pens; a Drug Recognition

Book; and gasoline for travel to and from court on an off-duty

basis. His expenses totaled around $1447 for the year.

Similarly, Plaintiff Ruston Keith Alsbrooks’s (“Als-

brooks”) equipment included: an on-duty handgun; an off-

26a

duty handgun; handcuffs; ammunition for on-duty use;

ammunition for practice purposes; a baton and baton-holder;

flashlight batteries; pepper spray, a copy of the penal code;

dress uniform shoes; duty shoes; and dry-cleaning of

uniforms. Alsbrooks’s annual equipment expenses approxi-

mated $2445.

The Court notes that the answers of the other named

plaintiffs paint roughly the same picture of expenses. While

some types of expenses were common among all officers,

such as ammunition or dry-cleaning, some types of expenses

were unique to the individual officer: For example, Plaintiff

Ruben Arias spent approximately $200 in haircuts for the

year, as well as $50 for shoe polish and $250 for uniform

alterations. Plaintiff Roosevelt Ashford had to buy an aviation

pen light ($15), flight gloves ($50), and a flight jacket ($125).

Plaintiff David Baideraz had to purchase a 35mm camera at a

cost of $600. Plaintiff Michael Bedner spent approximately

$1000 for the year in babysitting fees. Plaintiff Joel F. Cadriel

purchased cellular phone service for $900 during the year,

and his pager service cost him $720. Despite the indi-

vidualized nature of the officers’ various expenses, however,

HPOU has stipulated that the above officers’ average

expenditures are roughly representative of all the Plaintiffs

and Consenters in this case.

It is with this evidence that the Court finds that the $1200-

to-$1800 equipment allowance “reasonably approximates”

the expenses incurred by the numerous officers in the HPD.

As discussed above, the Department of Labor has interpreted

§ 207(e)(2) of the FLSA to mean that expense payments or

allowances made by an employer are not considered part of

the regular rate “if the amount reasonably approximates the

expense incurred.” 29 C.F.R. § 778.214(a). Indeed, the

Department has opined that only if “the amount paid as

‘reimbursement’ is disproportionately large [will] the excess

amount [] be included in the regular rate.” Id. Finding the

27a

Department’s interpretation highly persuasive, the Court thus

holds that the City has carried its burden in showing that the

equipment allowance is properly excluded from the regular

rate. A cataloging of various representative personal budgets

among the police officers demonstrates that an individual

officer can expect to have equipment-related expenses in the

range of $1400 to $2400 a year; the City’s equipment allow-

ance of $1200 to $1800 annually is a reasonable approx-

imation, and thus a reasonable allowance, for that cost. As a

result, the City’s equipment allowance, as currently struc-

tured, properly belongs outside the regular rate of § 207(e).

Moreover, with regard to HPOU’s argument that the City

collects no receipts from the officers and that the equipment

allowance is taxable as non-exempt income, the Court finds

no statutory provision, regulation, or letter ruling that ties an

allowance’s tax treatment to the issue of regular rate

calculation. Similarly, HPOU has not pointed to any source of

law, mandatory or persuasive, that obligates an employer to

require employees to submit receipts of expenditures for the

purposes of § 207(e). Again, the touchstone for the inquiry

rather lies in the reasonableness of the allowance vis-a-vis the

expenses actually incurred. Finding that such reasonableness

exists in the instant case, the Court grants summary judgment

for the City.

B. Use of compensatory time.

As discussed above, a public employer like the City of

Houston may provide compensatory time (“comp time’),

instead of overtime pay, to its employees. However, if an

employer provides comp time, such an arrangement may only

be pursuant to:

(i) applicable provisions of a collective bargaining

agreement, memorandum of understanding, or any other

agreement between the public agency and represen-

tatives of such employees; or

28a

(ii) in the case of employees not covered by subclause

(1), an agreement or understanding arrived at between

the employer and employee before the performance of

the work...

29 U.S.C. § 207(0)(2); 29 C.F.R. § 553.23 (1999). In this

case, it is the standard practice of the City of Houston to

compensate its officers through overtime pay or comp time.

See Police General Order 100-03 (defining “overtime com-

pensation” as “money or time off that has been authorized by

the City Council” (emphasis added)). Neither party disputes

the validity of the practice.

Rather, HPOU in the instant case complains that the City

violates the FLSA by the manner in which it administers the

comp time. Particularly relevant to this claim is § 207(0)(5)

of the FLSA, which provides in relevant part:

An employee of a public agency which is a Sate,

political subdivision of a State, or an interstate govern-

mental agency . . . who has accrued compensatory time

off... and. . . who has requested the use of such

compensatory time, shall be permitted by the employee’s

employer fo use such time within a reasonable period of

after making the request if the use of the compensatory

time does not unduly disrupt the operations of the public

agency.

29 U.S.C. § 207(0)(5) (emphasis added). The City’s Police

General Order 300-07 parallels the FLSA language and

provides that “[w]hen a supervisor receives a request for use

of compensatory time off, it will be approved unless to do so

would be unduly disruptive to the operation of the unit.”

Police General Order 300-07. In the HPD, officers can

accumulate up to 480 hours of comp time; once an officer has

reached the 480-hour limit, he is required to work for cash

overtime. (Dep. of Breshears at 32-33.) See also 29 U.S.C.

§ 207(0)(3)(A). Plaintiff HPOU complains that the HPD’s

29a

system violates the FLSA in that the HPD’s comp time

system does not, in actual practice, allow the officers to use

their accumulated compensatory time on the days requested.

In the day-to-day administration of compensatory time,

each HPD unit maintains a Red Book or similar diary. In that

book, officers scheduled to be off on either vacation or comp

time are listed for each day. In all cases, and in all units, there

exists a pre-set limit on the number of officers who may be

off on a given day. Such limits are based on each unit shift

commander’s estimation of the unit’s manpower needs; as

HPOU states, the primary considerations going into such an

estimation are efficiency of the unit and avoiding disruption

of the unit’s operation. Indeed, the general policy at the HPD

is to limit the number of officers allowed time off to 10% of

the staffing of each unit. .

The Red Book’s pre-set limits are set over long periods of

time and do not reflect a specific day’s needs for police

service. An officer wishing to use his accrued compensatory

time must sign his name in his unit’s Red Book; if the Red

Book’s time-off log has not reached its limit, the officer

receives his requested comp time off, but if the Book is fill,

the officer’s request is denied.

In this case, Plaintiff HPOU complains that the practice of

closing the Red Book, premised entirely on long-term staffing

estimations, violates the FLSA because it too often denies

police officers their use of compensatory time already earned

and accumulated. HPOU in particular focuses on the phrase

“unduly disrupt” in § 207(0)(5) and argues that, at its essence,

the FLSA requires an employer to grant an employee’s

request for the use of banked compensatory time in all

circumstances, except when the HPD can show that the use of

comp time would unduly disrupt the HPD’s operations. To

HPOU, the City’s closing of the Red Book for a certain day

(based on long-term manpower estimations) fails to satisfy

30a

the undue disruption requirement because the City makes no

effort to ascertain the undue disruption for the particular day

for which comp time is requested.

To support its argument, HPOU cites various authorities,

including the Secretary of Labor’s regulatory interpretation of

§ 207(0)(5)’s “undue disruption” language. The Secretary’s

interpretation states:

Undue Disruption. When an employer receives a request

for compensatory time off, it shall be honored unless to

do so would be “unduly disruptive” to the agency’s

operations. Mere inconvenience to the employer is an

insufficient basis for denial of a request for com-

pensatory time. For an agency to tum down a request

from an employee for compensatory time off requires

that it should reasonably and in good faith anticipate that

it would impose an unreasonable burden on the agency’s

ability to provide services of acceptable quality and

quantity for the public during the time requested without

the use of the empioyee’s services.

29 C.F.R. § 553.25(d) (emphases added). To HPOU, the

Secretary’s interpretation is significant for two reasons: (I) it

precludes inconvenience as a valid basis for the City to deny

an officer’s requested compensatory time, and (2) it implies

that, to deny an officer’s request based on “undue disruption,”

the undue disruption inquiry must be specifically tailored to

the particular day requested, rather than on the City’s long-

term manpower estimations.

HPOU also cites the August 1994 opinion letter of the

Department of Labor’s Wage and Hour Administrator for the

propositiun that an employer must generally grant an

employee’s request for compensatory time, even if such

granting would require the employer to use another employee

on an overtime basis. The 1994 letter specifically opines:

It is our position, notwithstanding [a memorandum of

understanding to the contrary], that an agency may not

;

3la

turn down a request from an employee for compensatory

time off unless it would impose an unreasonable burden

on the agency’s ability to provide services of acceptable

quality and quantity for the public during the time

requested without the use of the employee’s services.

The fact that overtime may be requested of one em-

ployee to permit another employee to use compensatory

time off would not be reason for an employer to claim

that the compensatory time off request is unduly

disruptive.

Letter Ruling, August 19, 1994. Based on these sources, as

well as the reasoning of two recent district court cases, HPOU

takes the position that the City’s Red Book system

fundamentally violates the FLSA.

In response, the City of Houston characterizes HPOU’s

argument as essentially calling on the City to allow all

officers use of any accrued compensatory time “on demand,

without regard to any reasonable restriction necessary to

business operations or additional costs to the employer.”

(Del.’s Reap. to Pls.” Mot. for Partial Summ. J. and Def.’s

Cross-Mot. for Surnm. J. at 8.) The City argues that HPOU’s

position is legally deficient because it improperly focuses on

only one half of § 207(0)(5)’s test. While § 207(0)(5)

generally requires public employers to allow employees to

use their requested compensatory time, the City points out

that the general rule is subject to two caveats: when con-

fronted with an employee’s request for comp time, an

employer need only (1) grant comp time that is within a

“reasonable period” of the employee’s requested date, and (2)

if the employer does not grant the comp time within a

reasonable period, the only excusable reason is for undue

disruption. Based on this rule, the City essentially takes the

position that the undue disruption issue is irrelevant in this

32a

case because even if the City denies an officer’s request for a

particular day off, it almost always grants the officer comp

time within a reasonable period of the request.

The Court agrees with the City. As discussed above, 29

U.S.C. § 207(0)(5) provides that a public employee who has

requested the use of comp time “shall be permitted by the

employee’s employer fo use such time within a reasonable

period after making the request if the use of the com-

pensatory time does not unduly disrupt the operations of the

public agency.” 29 U.S.C. § 207(0)(5) (emphasis added). The

question arises as to what the meaning of “reasonable period”

is and to what does it refer. As the court for the Eastern

District of Wisconsin suggests in Debraska v. City of

Milwaukee, No. 96-0-402 (E.D. Wis Sept. 26, 2000), the

FLSA’s “reasonable period” requirement could mean that “an

employee must give adequate notice that he wants to use

comp time on a particular day, thereby giving the employer

time to plan and to determine whether the request can be

granted.” /d. at 6. Such an interpretation thus views the

reasonable period requirement as an obligation placed on the

employee. A different interpretation, however, would hold

that the phrase refers to the time period between the date the

employee requests off and the date the city will actually allow

him to take off; this explanation essentially views the “rea-

sonable period” language as allowing the employer greater

latitude in satisfying a comp time request under § 207(0)(5).

The Court adopts the latter interpretation in light of the

express language of the statute and the Department of Labor’s

regulations. Although the district court in Debraska held that

the “reasonable period” language is ambiguous, this Court

finds no such ambiguity because the statute’s language

clearly requires only that an employer allow the employee “to

use [comp] time within a reasonable period after making the

request .. . .” 29 U.S.C. § 207(0)(5). The statute therefore

does not require that a public employer grant an employee

Se ree A pepe A EON:

peters

33a

comp time for a specific day; rather, it mandates only that the

granted comp time be reasonably close in time to when the

employee made the request. By its clear terms, then, the

FLSA grants employers like the City of Houston some degree

of latitude in scheduling an employee’s requested comp time.

The Department of Labor’s definition of “reasonable

period” for the purposes of § 207(0)(5) further supports the

notion that a public employer need only grant the officers

comp time that is reasonably close to the request. As the

regulation states:

Reasonable period. (1) whether a request to use com-

pensatory time has been granted within a “reasonable

period” will be determined by considering the customary

work practices within the agency based on the facts and

circumstances of each case. Such practices include, but

are not limited to (a) the normal schedule of work, (b)

anticipated peak workloads based on past experience, (c)

emergency requirements for staff and services, and (d)

the availability of qualified substitute staff.

29 C.F.R. § 553.25(c). The Court particularly notes that the

Department of Labor’s interpretation does not read into the

“reasonable period” standard the requirement that an

employer must grant its employees their requested comp time

for the exact, specific day requested. Rather, the regulation

centers the reasonable-period inquiry on the actions of the

employer, and it echoes the FLSA’s concept that an employer

will be deemed to have satisfied the FLSA so long as he

grants the use of the compensatory time within a reasonable

period of the request. Indeed, the regulation lists various

factors (including “anticipated peak workloads” and “emer-

gency situations’) that clearly contemplate the possibility that

an employer may refuse to grant an employee’ & comp time

request for the specific day requested.

34a

In sum, to adopt HPOU’s argument in this case would be to

read the “reasonable period” language out of the FLSA. As

discussed above, the essence of HPOU’s argument is that the

officers are entitled to use their accumulated comp time on

the specific day they request unless the HPD can prove undue

disruption with respect to the specific day requested. HPOU’s

position would possibly have merit if the statute merely read:

“An employee . . . shall be permitted by the employee’s

employer to use [compensatory] time . . . if the use of the

compensatory time does not unduly disrupt the operations of

the public agency.” Of course, even then, the statute would

still be silent as to whether an employer was obligated to

grant the employee the requested comp time for the exact day

requested.” As written, however, the statute instead expressly

provides: “An employee . . . shall be permitted by the em-

ployee’s employer to use [compensatory] time within a

reasonable period after making the request if the use of the

compensatory time does not unduly disrupt the operations of

the public agency.” 29 U.S.C. § 207(0)(5) (emphasis added).

Not only does the plain language of the statute not require

employers to grant the specific day requested but, indeed, the

statute, by its own terms, is satisfied so long as the comp time

granted is reasonably close in time to the request. See Aiken v.

City of Memphis, 190 F.3d 753, 756 (6th Cir. 1999) (recog-

nizing the importance of the “reasonable period” language

and stating that the “fundamental defect in the plaintiffs’

position . . . [was] that it completely ignore[d] the phrase

‘reasonable period”).°

? Therefore, even if the “reasonable period” language were jettisoned

from the statute, the success of HPOU’s argument would still be in doubt.

When the FLSA “‘is silent on [an] issue and [when the public employer’s]}

policy is entirely compatible with § 207(0\5),” a plaintiff generally

cannot prove that the employer has violated § 207. See Christensen, 529

U.S. at 585.

* The Court also recognizes that the policy considerations underlying

§ 207(0) strongly undercut any argument that public employers are

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35a

The record in the instant case demonstrates that the HPD’s

use of the Red Book system in administering comp time

satisfies the FLSA because it affords the officers comp time

within a reasonable period of each officers’ request. While

the HPOU fails to point to any competent evidence that

challenges the reasonableness of the Red Book system, the

Court notes that the City’s expert, Dr. P. Richard Jeanneret

(“Dr. Jenneret’’), studied the HPD’s comp time practices and

concluded that, “[f]or the most part, an employee who is

eligible for compensatory time off is able to obtain approval

for a specific time period requested without difficulty.”

(Report of Jeanneret at 12.)* Additionally, Dr. Jeanneret

required to grant employees the specific comp days requested. As the

Supreme Court recognized in Christensen, Congress granted public

employers the right to compensate their employees for overtime with

comp time (instead of overtime pay) as part of an effort to “mitigate the

effects of applying the FLSA to States and their political subdivisions . . .

.” Christensen, 529 U.S. at 579. Fiscal concerns largely motivated such

mitigation because “[t]he projected ‘financial costs of coming into

compliance with the FLSA—particularly the overtime provisions’—were

specifically identified as a matter of grave concern to many States and

localities.” Moreau v. Klevenhagen, 508 U.S. 22, 26 (1993) (citing S. Rep.

No. 99.159, p. 8 (1995)). It is with the understanding that § 207(0)(5)

represents an amelioration of the FLSA for public employers that the

Court presently reads the statute as not requiring employers always to

grant comp time for the specific day requested.

* Dr. Jeanneret’s report indicated that the Patrol divisions presented the

only exceptions to the general rule that officers were granted the com-

pensatory time requested within a reasonable period. To the extent that

officers within the Patrol divisions were denied compensatory time within

a reasonable period, the Court finds that the City has satisfied the “undue

disruption” prong of § 207(0)(5). Dr. Jenneret’s report specifically out-

lined the disruption caused by personnel reassignment in these divisions;

the problems included officers becoming lost, officers’ lack of knowledge

of the traffic patterns of the areas, officers’ ignorance with regard to local

“hot spots” and troublemakers, officers’ inability to work effectively in a

culturally-specific area, teamwork issues, the compromise to the HPD’s

philosophy of neighborhood policing, and overall response times to calls.

(Report of Jeanneret at 9-10.) In light of this evidence, and in the absence

36a

[ ] Red Book system was based on historic data

regarding calls for service and absence patterns, that

exceptions were made by the lieutenants in order to

accommodate comp time requests, and that the requests were

not frequently denied. (Report of Jeanneret at 4-5.) As noted

above, the Department of Labor itself defined “reasonable

period” as including considerations of the “normal schedule

of work” and “anticipated peak workloads based on past

experience.” 29 C.F.R. 553.25(c). In light of the record, and

given the absence of any competent evidence to the contrary,

the Court finds that the City’s Red Book system satisfies the

FLSA’s requirement that the City grant its police officers

comp time within a reasonable period.

Summary judgment is thus appropriate on HPOU’s

compensatory time claim. Although HPOU largely relies on

the Department of Labor’s August 1994 opinion letter for the

proposition that “an agency may not turn down a request from

an employee for compensatory time off unless it would

impose an unreasonable burden on the agency,” Department

of Labor, Letter Ruling, August 19, 1994, the fundamental

deficiency in such an argument (and in the Department’s

opinion letter) is that it fails to account for the “reasonable

period” language in § 207(0)(5).. The Court can discern no

of any competent evidence to the contrary, the Court finds that the City

has shown specific undue disruption for specific divisions within the HPD

that would warrant the denial of comp time within a reasonable period.

> While the parties have no controversy with regard to the Department

of Labor regulations cited by either side in this case, the Court notes that

opinion letter relied on by HPOU is not entitled to judicial deference as

contemplated by the Supreme Court in Chevron U.S.A. Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837 (1984). As the Supreme

Court recently held in Christensen, “an interpretation contained in an

opinion letter{-] . . . like those contained in policy statements, agency

manuals, and enforcement guidelines, all of which lack the force of law-

do not warrant Chevron-style deference.” Christensen, 529 U.S. at 586.

Instead, “interpretations contained in formats such as opinion letters are

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37a

language in the statute that indicates Congress intended to

impose on public employers the duty to grant its employees

the use of comp time, essentially, on demand. Therefore, to

the extent that HPOU’s partial summary judgment mo-

tion focuses entirely on the “undue disruption” prong of

§ 207(0)(5), the Court finds that such argument lacks merit

because it first presumes that police officers are not receiving

comp time within a reasonable period of making the request.

Because HPOU has presented no competent evidence

showing that the City has failed to grant comp time within a

reasonable period, and because the record rather demonstrates

that the City has satisfied the reasonable-period requirement,

the issue of “undue disruption” is largely irrelevant. The

Court accordingly grants summary judgment for the City.

IV. CONCLUSION

In this case, HPOU claims that the City violates the FLSA

in two different ways. First, it argues that the City’s failure to

include the equipment allowance into each officer’s “regular

rate” of pay violates the FLSA because the allowance does

not fall into any of the eight enumerated exemptions to the

regular rate. The City, however, has satisfied its burden in

showing that the equipment allowance in fact satisfies the

second exemption to the statute because the equipment

allowance reasonably approximates the average expenditures

and costs incurred by the officers for equipment on the job.

HPOU’s second argument regarding the use of specific comp

time also fails because HPOU focuses on the “undue dis-

ruption” prong of the statute to the disregard of the lati-

tude afforded to municipalities by way of the “reasonable

period” language.

‘entitled to respect’ . . . but only to the extent that those interpretations

have the ‘power to persuade.”” /d. at 587. Here in the instant case, the

Court finds unpersuasive the Department of Labor’s opinion letter for the

reasons assigned above.

38a

Accordingly, the Court

ORDERS that Plaintiffs’ motion for partial summary

judgment is DENIED; and

ORDERS that Defendant’s cross-motion for summary

judgment is GRANTED.

SIGNED at Houston, Texas, this 25th day of September,

2001.

/s/ Melinda Harmon

MELINDA HARMON

UNITED STATES DISTRICT JUDGE

Se a ata Rae ame ener oa vec ne, CR a

LE he EI GMI ? rere

ERASER ASI ORLY ie PLR AWD to ALLE pik PY FREES

39a

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

[Filed Sept. 26, 2001]

Civil Action No. H-00-2184

HOUSTON POLICE OFFICERS’ UNION, et ai.,

Plaintiffs,

VS.

CITY OF HOUSTON POLICE DEPARTMENT and

CiTY OF HOUSTON,

Defendants.

FINAL JUDGMENT

In accordance with the Memorandum Opinion and Order of

this same date, the Court

ORDERS that Defendant City of Houston, Texas is granted

summary judgment on all claims brought against it in the

above-referenced action by Plaintiff Houston Police Officers’

Union et al.; and further

ORDERS that Plaintiffs pay all costs of court.

THIS IS A FINAL JUDGMENT.

SIGNED at Houston, Texas, this 25th day of September,

2001.

/s/ Melinda Harmon

MELINDA HARMON

UNITED STATES DISTRICT JUDGE

40a

APPENDIX E

APPENDIX E FAIR LABOR STANDARDS ACT

OF 1938, § 7(0)-(q), 29 U.S.C.A. § 207(0)-(q)

§ 207 Maximum Hours

* * *

(o) Compensatory time.

(1) Employees of a public agency which is a State, a

political subdivision of a State, or an_ interstate

governmental agency may receive, in accordance with

this subsection and in lieu of overtime compensation,

compensatory time off at a rate not less than one and

one-half hours for each hour of employment for which

overtime compensation is required by this section.

(2) A public agency may provide compensatory time

under paragraph (1) only—

(A) pursuant to—

(i) applicable provisions of a collective bargain-

ing agreement, memorandum of understanding, or

any other agreement between the public agency and

representatives of such employees; or

(ii) in the case of employees not covered by sub-

clause (i), an agreement or understanding arrived at

between the employer and employee before the

performance of the work; and

(B) if the employee has not accrued compensatory

time in excess of the limit applicable to the employee

prescribed by paragraph (3). In the case of employees

described in clause (A)ii) hired prior to April | the

regular practice in effect on April 15, 1986, with

respect to compensatory time off for such employees

in lieu of the receipt of overtime compensation, shall

constitute an agreement or understanding under such

4la

clause (A)(ii). Except as provided in the previous

sentence, the provision of compensatory time off to

such employees for hours worked after April 14,

1986, shall be in accordance with this subsection.

(3)(A) If the work of an employee for which

compensatory time may be provided included work in a

public safety activity, an emergency response activity, or

a seasonal activity, the employee engaged in such work

may accrue not more than 480 hours of compensatory

time for hours worked after April 15, 1986. If such work

was any other work, the employee engaged in such work

may accrue not more than 240 hours of compensatory

time for hours worked after April 15, 1986. Any such

employee who, after April 15, 1986, has accrued 480 or

240 hours, as the case may be, of compensatory time off

shall, for additional overtime hours of work, be paid

overtime compensation.

(B) If compensation is paid to an employee for ac-

crued compensatory time off, such compensation shall

be paid at the regular rate earned by the employee at

the time the employee receives such payment.

(4) An employee who has accrued compensatory time

off authorized to be provided under paragraph (1) shall,

upon termination of employment, be paid for the unused

compensatory time at a rate of compensation not less

than—

(A) the average regular rate received by such

employee during the last 3 years of the employee’s

employment, or

(B) the final regular rate received by such em-

ployee, whichever is higher [. |

(S) An employee of a public agency which is a State,

political subdivision of a State, or an interstate gov-

ernmental agency—

42a

(A) who has accrued compensatory time off author-

ized to be provided under paragraph (1), and

(B) who has requested the use of such compens-

atory time, shall be permitted by the employee’s

employer to use such time within a reasonable period

after making the request if the use of the com-

pensatory time does not unduly disrupt the operations

of the public agency.

(6) The hours an employee of a public agency per-

forms court reporting transcript preparation duties shall

not be considered as hours worked for the purposes of

subsection (a) if—

(A) such employee is paid at a per-page rate which

is not less than—

(i) the maximum rate established by State law or

local ordinance for the jurisdiction of such public

agency,

(ii) the maximum rate otherwise established by a

judicial or administrative officer and in effect on

July 1, 1995, or

(iii) the rate freely negotiated between the em-

ployee and the party requesting the transcript, other

than the judge who presided over the proceedings

being transcribed, and

(B) the hours spent performing such duties are

outside of the hours such employee performs other

work (including hours for which the agency requires

the employee’s attendance) pursuant to the employ-

ment relationship with such public agency.

For purposes of this section, the amount paid such

employee in accordance with subparagraph (A) for the

performance of court reporting transcript preparation

duties, shall not be considered in the calculation of the

regular rate at which such employee is employed.

————— 2x

43a

(7) For purposes of this subsection—

(A) the term “overtime compensation” means the

compensation required by subseetion (a), and

(B) the terms “compensatory time” and “compens-

atory time off’ mean hours during which an employee

is not working, which are not counted as hours

worked during the applicable workweek or other work

period for purposes of overtime compensation, and for

which the employee is compensated at the employee’s

regular rate.

(p) Special detail work for fire protection and law en-

forcement employees; occasional or sporadic employment;

substitution.

(1) If an individual who is employed by a State,

political subdivision of a State, or an interstate govern-

mental agency in fire protection or law enforcement

activities (including activities of security personnel in

correctional institutions) and who, solely at such

individual’s option, agrees to be employed on a special

detail by a separate or independent employer in fire

protection, law enforcement, or related activities, the

hours such individual was employed by such separate

and independent employer shall be excluded by the

public agency employing such individual in the

calculation of the hours for which the employee is

entitled to overtime compensation under this section if

the public agency—

(A) requires that its employees engaged in fire

protection, law enforcement, or security activities be

hired by a separate and independent employer to

perform the special detail,

(B) facilitates the employment of such employees

by a separate and independent employer,

44a

of such employees by a separate and independent

employer.

(2) 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 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.

(3) If an individual who is employed in any capacity

by a public agency which is a State, political subdivision

of a State, or an interstate governmental agency, agrees,

with the approval of the public agency and solely at the

option of such individual, to substitute during scheduled

work hours for another individual who is employed by

such agency in the same capacity, the hours such

employee worked as a substitute shall be excluded by k

the public agency in the calculation of the hours for

which the employee is entitled to overtime compensation

under this section.

(q) Maximum hour exemption for employees receiving reme-

dial education.

Any employer may employ any employee for a period

or periods of not more than 10 hours in the aggregate in

any workweek in excess of the maximum workweek

specified in subsection (a) without paying the

compensation for overtime employment prescribed in

such subsection, if during such period or periods the

employee is receiving remedial education that is—

45a

(1) provided to employees who lack a high school

diploma or educational attainment at the eighth grade

level;

(2) designed to provide reading and other basic skills

at an eighth grade level or below; and

(3) does not include job specific training.

* * *

46a

APPENDIX F

APPENDIX F—REGULATIONS INVOLVED

29 C.F.R. § 553.20

SECTION 7(0}—COMPENSATORY TIME AND

COMPENSATORY TIME OFF

§ 553.20 Introduction.

Section 7 of the FLSA requires that covered,

nonexempt employees receive not less than one and one-

half times their regular rates of pay for hours worked in

excess of the applicable maximum hours standards.

However, section 7(0) of the Act provides an element of

flexibility to State and local government employers and

an element of choice to their employees or the

representatives of their employees regarding compen-

sation for statutory overtime hours. The exemption

provided by this subsection authorizes a public agency

which is a State, a political subdivision of a State, or an

interstate governmental agency, to provide compensa-

tory time off (with certain limitations, as provided in

§ 553.21) in lieu of monetary overtime compensation

that would otherwise be required under section : J

Compensatory time received by an employee in lieu of

cash must be at the rate of not less than one and one-half

hours of compensatory time for each hour of overtime

work, iust as the monetary rate for overtime is calculated

at the rate of not less than one and one-half times the

regular rate of pay.

* * *

29 C.F.R. § 553.21

§ 553.21 Statutory provisions.

Section 7(0) provides as follows:

(01) Employees of a public agency which is a State,

a political subdivision of a State, or an interstate

47a

governmental-agency may receive, in accordance with

this subsection and in lieu of overtime compensation,

compensatory time off at a rate not less than one and

one-half hours for each hour of employment for which

overtime compensation is required by this section.

(2) A public agency may provide compensatory time

under paragraph (1) only—

(A) Pursuant to—

(i) Applicable provisions of a collective bar-

gaining agreement, memorandum of understanding,

or any other such employees; or

(ii) In the case of employees not covered by sub-

clause (i), an agreement or understanding arrived at

between the employer and employee before the

performance of the work; and

(B) If the employee has not accrued compensatory

time in excess of the limit applicable to the employee

prescribed by paragraph (3).

In the case of employees described in clause (A)(i1}

hired prior to April 15, 1986, the regular practice in

effect on April 15, 1986, with respect to compensatory

time off for such employees in lieu of the receipt of

overtime compensation, shall constitute an agreement

or understanding under such clause (A)(i1). Except as

provided in the previous sentence, the provision of

compensatory time off to such employees for hours

worked after April 14, 1986, shall be in accordance

with this subsection.

(3)(A) If the work of an employee for which

compensatory time may be provided included work in

a public safety activity, an emergency response activ-

ity, or a seasonal activity, the employee engaged in

such work may accrue not more than 480 hours of

48a

compensatory time for hours worked after April 15,

1986. If such work was any other work, the employee

engaged in such work may accrue not more than 240

hours of compensatory time for hours worked after

April 1 Any such employee who, after April 15, 1986,

has accrued 480 or 240 hours, as the case may be, of

compensatory time off shall, for additional overtime

hours of work, be paid overtime compensation.

(B) If compensation is paid to an employee for

accrued compensatory time off, such compensation

shall be paid at the regular rate earned by the

employee at the time the employee receives such

payment.

(4) An employee who has accrued compensatory time

off authorized to be provided under paragraph (1) shall,

upon termination of employment, be paid for the unused

compensatory time at a rate of compensation not less

than—

(A) The average regular rate received by such em-

ployee during the last 3 years of the employee's

employment, or

(B) The final regular rate received by such em-

ployee, whichever is higher.

(5) An employee of a public agency which is a State,

political subdivision of a State, or an interstate gov-

ernmental agency—

(A) Who has accrued compensatory time off

authorized to be provided under paragraph (1), and

(B) Who has requested the use of such compens-

atory time, shall be permitted by the employee's

employer to use such time within a reasonable period

after making the request if the use of the com-

pensatory time does not unduly disrupt the operations

of the public agency.

mer

‘

49a

(6) For purposes of this subsection—

(A) The term overtime compensation means the

compensation required by subsection (a), and

(B) The terms compensatory time and compens-

atory time off means hours during which an employee

is not working, which are not counted as hours

worked during the applicable workweek or other work

period for purposes of overtime compensation, and for

which the employee is compensated at the employee's

regular rate.

* * *

29 C.F.R. § 553.22

§ 553.22 “FLSA compensatory time” and “FLSA compensa-

tory time off”.

(a) Compensatory time and compensatory time off are

interchangeable terms under the FLSA. Compensatory

time off is paid time off the job which is earned and

accrued by an employee in lieu of immediate cash

payment for employment in excess of the statutory hours

for which overtime compensation is required by section

7 of the FLSA.

(b) The Act requires that compensatory time under

section 7(0) be earned at a rate not less than one and

one-half hours for each hour of employment for which

overtime compensation is required by section 7 of the

FLSA. Thus, the 480-hour limit on accrued compensa-

tory time represents not more than 320 hours of actual

overtime worked, and the 240-hour limit represents not

more than 160 hours of actual overtime worked.

pensatory time only apply to overtime hours worked

after April 15, 1986. Compensatory time which an

employee has accrued prior to April 15, 1986, is not

50a

subject to the overtime requirements of the FLSA and

need not be aggregated with compensatory time accrued

after that date.

* * *

29 C.F.R. 553.23

§ 553.23 Agreement or understanding prior to performance

of work.

(a) General. (1) As a condition for use of compens-

atory time in lieu of overtime payment in cash, section

7(0)(2)(A) of the Act requires an agreement or under-

standing reached prior to the performance of work. This

can be accomplished pursuant to a collective bargaining

agreement, a memorandum of understanding or any

other agreement between the public agency and

representatives of the employees. If the employees do

not have a representative, compensatory time may be

used in lieu of cash overtime compensation only if such

an agreement or understanding has been arrived at

between the public agency and the individual employee

before the performance of work. No agreement or

understanding is required with respect to employees

hired prior to April 15, 1986, who do not have a

representative, if the employer had a regular practice in

effect on April 15, 1986, of granting compensatory time

off in lieu of overtime pay.

(2) Agreements or understandings may provide that

compensatory time off in lieu of overtime payment in

cash may be restricted to certain hours of work only. In

addition, agreements or understandings may provide for

any combination of compensatory time off and overtime

payment in cash (e.g., one hour compensatory time

credit plus one-half the employee's regular hourly rate of

pay in cash for each hour of overtime worked) so long as

the premium pay principle of at least “time and one-

PME SIE AEG ELPE SY S POT

— Ca ee RET Pte a O28: te te * esta

Leh SPORE RS Ye AD I RE ER See ‘ Si Hl le ag as

Sla

half’ is maintained. The agreement or understanding

may include other provisions governing the preservation,

use, or cashing out of compensatory time so long as

these provisions are consistent with section 7(0) of the

Act. To the extent that any provision of an agreement or

understanding is in violation of section 7(0) of the Act,

the provision is superseded by the requirements of

section 7(0).

(b) Agreement or understanding between the public

agency and a representative of the employees. (1) Where

employees have a representative, the agreement or

understanding concerning the use of compensatory time

must be between the representative and the public

agency either through a collective bargaining agreement

or through a memorandum of understanding or other

type of oral or written agreement. In the absence of a

collective bargaining agreement applicable to the

employees, the representative need not be a formal or

recognized bargaining agent as long as the representative

is designated by the employees. Any agreement must be

consistent with the provisions of section 7(0) of the Act.

(2) Section 2(b) of the 1985 Amendments provides

that a collective bargaining agreement in effect on April

15, 1986, which permits compensatory time off in lieu of

overtime compensation, will remain in effect until the

expiration date of the collective bargaining agreement

unless otherwise modified. However, the terms and

conditions of such agreement under which compensatory

time off is provided after April 14, 1986, must not

violate the requirements of section 7(0) of the Act and

these regulations.

agency and individual employees. (1) Where employees

of a public agency do not have a recognized or other-

wise designated representative, the agreement or under-

52a

standing concerning compensatory time off must be

between the public agency and the individual employee

and must be reached prior to the performance of work.

This agreement or understanding with individual

employees need not be in writing, but a record of its

existence must be kept. (See § 553.50.) An employer

need not adopt the same agreement or understanding

with different employees and need not provide com-

pensatory time to all employees. The agreement or

understanding to provide compensatory time off in lieu

of cash overtime compensation may take the form of an

express condition of employment, provided (i) the

employee knowingly and voluntarily agrees to it as a

condition of employment and (ii) the employee is

informed that the compensatory time received may be

preserved, used or cashed out consistent with the

provisions of section 7(0) of the Act. An agreement or

understanding may be evidenced by a notice to the

employee that compensatory time off will be given in

lieu of overtime pay. In such a case, an agreement or

understanding would be presumed to exist for purposes

of section 7(0) with respect to any employee who fails to

express to the employer an unwillingness to accept

compensatory time off in lieu of overtime pay. However,

the employee's decision to accept compensatory time off

in lieu of cash overtime payments must be made freely

and without coercion or pressure.

(2) Section 2(a) of the 1985 Amendments provides

that in the case of employees who have no representative

and were employed prior to April 15, 1986, a public

agency that has had a regular practice of awarding

compensatory time off in lieu of overtime pay is deemed

to have reached an agreement or understanding with

these employees as of April 15, 1986. A public agency

need not secure an agreement or understanding with

each employee employed prior to that date. If, however,

;

i 4

SAH

ERE Y

53a

such a regular practice does not conform to the

provisions of section 7(0) of the Act, it must be modified

to do so with regard to practices after April 14, 1986.

With respect to employees hired after April 14, 1986, the

public employer who elects to use compensatory time

must follow the guidelines on agreements discussed in

paragraph (c)(1) of this section.

* * *

29 C.F.R. § 553.24

§ 553.24 “Public safety”, “emergency response’, and “sea-

sonal” activities.

(a) Section 7(0)(3)(A) of the FLSA provides that an

employee of a public agency which is a State, a political

subdivision of a State, or an interstate governmental

agency, may accumulate not more than 480 hours of

compensatory time for FLSA overtime hours which are

worked after April 15, 1986, if the employee is engaged

in “public safety”, “emergency response”, or “seasonal”

activity. Employees whose work includes “seasonal”,

“emergency response”, or “public safety” activities, as

well as other work, will not be subject to both limits of

accrual for compensatory time. If the employee’s work

regularly involves the activities included in the 480-hour

limit, the employee will be covered by that limit. A

public agency cannot utilize the higher cap by simple

classification or designation of an employee. The work

performed is controlling. Assignment of occasional

duties within the scope of the higher cap will not entitle

the employer to use the higher cap. Employees whose

work does not regularly involve “seasonal”, “emergency

response”, or “public safety” activities are subject to a

240-hour compensatory time accrual limit for FLSA

overtime hours which are worked after April 15, 1986.

54a

(b) Employees engaged in “public safety”, “emer-

gency response”, or “seasonal” activities, who transfer to

positions subject to the 240-hour limit, may carry over to

the new position any accrued compensatory time. The

employer will not be required to cash out the accrued

compensatory time which is in excess of the lower limit.

However, the employee must be compensated in cash

wages for any subsequent overtime hours worked until

the number of accrued hours of coinpensatory time falls

below the 240-hour limit.

activities” as used in section 7(0)(3)(A) of the Act

includes law enforcement, fire fighting or related activ-

ities as described in §§ 553.210 (a) and (b) and 553.211

(a)-(c), and (f). An employee whose work regularly

involves such activities will qualify for the 480-hour

accrual limit. However, the 480-hour accrual limit will

not apply to office personnel or other civilian employees

who may perform public safety activities only in

emergency situations, even if they spend substantially all

of their time in a particular week in such activities. For

example, a maintenance worker employed by a public

agency who is called upon to perform fire fighting

activities during an emergency would remain subject to

the 240-hour limit, even if such employee spent an entire

week or several weeks in a year performing public safety

activities. Certain employees who work in “public

safety” activities for purposes of section 7(0)(3)(A) may

qualify for the partial overtime exemption in section 7(k)

of the Act. (See § 553.201)

(d) “Emergency response activity”: The term “emer-

gency response activity” as used in section 7(0)(3)(A) of

the Act includes dispatching of emergency vehicles and

personnel, rescue work and ambulance services. As is

the case with “public safety” and “seasonal” activities,

‘

5Sa

an employee must regularly engage in “emergency

response” activities to be covered under the 480-hour

limit. A city office worker who may be called upon to

perform rescue work in the event of a flood or

snowstorm would not be covered under the higher limit,

since such emergency response activities are not a

regular part of the employee’s job. Certain employ-

ees who work in “emergency response” activities for

purposes of section 7(0)(3)(A) may qualify for the

partial overtime exemption in section 7(k) of the Act.

(See § 553.215.)

(e)(1) “Seasonal activity”: The term “seasonal activ-

ity” includes work during periods of significantly in-

creased demand, which are of a regular and recurring

nature. In determining whether employees are con-

sidered engaged in a seasonal activity, the first

consideration is whether the activity in which they are

engaged is a regular and recurring aspect of the

employee’s work. The second consideration is whether

the projected overtime hours during the period of

significantly increased demand are likely to result in the

accumulation during such period of more than 240

compensatory time hours (the number available under

the lower cap). Such projections will normally be

based on the employer’s past experience with similar

employment situations.

(2) Seasonal activity is not limited strictly to those

operations that are very susceptible to changes in the

weather. As an example, employees processing tax re-

turns over an extended period of significantly increased

demand whose overtime hours could be expected to

result in the accumulation during such period of more

than 240 compensatory time hours will typically qualify

as engaged in a seasonal activity.

56a

(3) While parks and recreation activity is primarily

seasonal because peak demand is generally experienced

in fair weather, mere periods of short but intense activity

do not make an employee’s job seasonal. For example,

clerical employees working increased hours for several

weeks on a special project or assigned to an afternoon of

shoveling snow off the courthouse steps would not be

considered engaged in seasonal activities, since the

increased activity would not result in the accumulation

during such period of more than 240 compensatory time

hours. Further, persons employed in municipal

auditoriums, theaters, and sports facilities that are open

for specific, limited seasons would be considered

engaged in seasonal activities, while those employed in

facilities that operate year round generally would not.

(4) Road crews, while not necessarily seasonal work-

ers, may have significant periods of peak demand, for

instance during the snow plowing season or road

construction season. The snow plow operator/road crew

employee may be able to accrue compensatory time to

the higher cap, while other employees of the same

department who do not have lengthy periods of peak

seasonal demand would remain under the lower cap.

*x* * *

29 C.F.R. § 553.25

§ 553.25 Conditions for use of compensatory time (“reason-

able period”, “unduly disrupt”).

Soyehap ois

(a) Section 7(0)(5) of the FLSA provides that any

employee of a public agency who has accrued com-

pensatory time and requested use of this compensatory

time, shall be permitted to use such time off within a

“reasonable period” after making the request, if such use

does not “unduly disrupt” the operations of the agency.

This provision, however, does not apply to “other

57a

compensatory time” (as defined below in § 553.28),

including compensatory time accrued for overtime

worked prior to April 15, 1986.

(b) Compensatory time cannot be used as a means to

avoid statutory overtime compensation. An employee

has the right to use compensatory time earned and must

not be coerced to accept more compensatory time than

an employer can realistically and in good faith expect to

be able to grant within a reasonable period of his or her

making a request for use of such time.

compensatory time has been granted within a “reason-

able period” will be determined by considering the

customary work practices within the agency based on the

facts and circumstances in each case. Such practices

include, but are not limited to (a) the normal schedule of

work, (b) anticipated peak workloads based on past

experience, (c) emergency requirements for staff and

services, and (d) the availability of qualified substitute

staff.

(2) The use of compensatory time in lieu of cash

payment for overtime must be pursuant to some form of

agreement or understanding between the employer and

the employee (or the representative of the employee)

reached prior to the performance of the work. (See

§ 553.23.) To the extent that the (conditions under which

an employee can take compensatory time off are

contained in an agreement or understanding as defined in

§ 553.23, the terms of such agreement or understanding

will govern the meaning of “reasonable period”.

(d) Unduly Disrupt. When an employer receives a

request for compensatory time off, it shall be honored

unless to do so would be “unduly disruptive” to the

agency’s operations. Mere inconvenience to the

58a

employer is an insufficient basis for denial of a request

for compensatory time off. (See H. Rep. 99-331, p. 23.)

For an agency to turn down a request from an employee

for compensatory time off requires that it should

reasonably and in good faith anticipate that it would

impose an unreasonable burden on the agency’s ability

to provide services of acceptable quality and quantity for

the public during the time requested without the use of

the employee’s services.

* * *

29 C.F.R. § 553.26

§ 553.26 Cash overtime payments.

(a) Overtime compensation due under section 7 may

be paid in cash at the employer’s option, in lieu of

providing compensatory time off under section 7(0) of

the Act in any workweek or work period. The FLSA

does not prohibit an employer from freely substituting

cash, in whole or part, for compensatory time off; and

overtime payment in cash would not affect subsequent

granting of compensatory time off in future workweeks

or work periods. (See § 553.23(a)(2).)

(b) The principles for computing cash overtime pay

are contained in 29 CFR part 778. Cash overtime

compensation must be paid at a rate not less than one

and one-half times the regular rate at which the q

employee is actually paid. (See 29 CFR 778.107.) : |

employee works hours which are overtime hours under

FLSA and for which cash overtime payment will be

made, and the employee also takes compensatory time

off, the payment for such timeoff may be excluded from

.§

—

59a

the regular rate of pay under section 7(e)(2) of the Act.

Section 7(e)(2) provides that the regular rate shall not be

deemed to include

. . . payments made for occasional periods when no

work is performed due to vacation, holiday, . . . or

other similar cause.

As explained in 29 CFR 778.218(d), the term “other

similar cause” refers to payments made for periods of

absence due to factors like holidays, vacations, illness,

and so forth. Payments made to an employee for periods

of absence due to the use of accrued compensatory time

are considered to be the type of payments in this “other

similar cause” category.

* * *

29 C.F.R. § 553.27

§ 553.27 Payments for unused compensatory time.

(a) Payments for accrued compensatory time earned

after April 14, 1986, may be made at any time and shall

be paid at the regular rate earned by the employee at the

time the employee receives such payment.

(b) Upon termination of employment, an employee

shall be paid for unused compensatory time earned after

April 14, 1986, at a rate of compensation not less than—

(1) The average regular rate received by such em-

ployee during the last 3 years of the employee’s

employment, or

(2) The final regular rate received by such em-

ployee, whichever is higher.

4 (c) The phrase “last 3 years of employment” means

: the 3-year period immediately prior to termination.

Where an employee’s last 3 years of employment are not

continuous because of a break in service, the period of

‘ .

60a

employment after the break in service will be treated as

new employment. However, such a break in service must

have been intended to be permanent and any accrued

compensatory time earned after April 14, 1986, must

have been cashed out at the time of initial separation.

Where the final period of employment is less than 3

years, the average rate still must be calculated based on

the rate(s) in effect during such period.

(d) The term “regular rate” is defined in 29 CFR

778.108. As indicated in § 778.109, the regular rate is an

hourly rate, although the FLSA does not require em-

ployers to compensate employees on an hourly basis.

I Ei

* * *

29 C.F.R. § 553.28

§ 553.28 Other compensatory time.

(a) Compensatory time which is earned and accrued

by an employee for employment in excess of a nonstat-

utory (that is, non-FLSA) requirement is considered

“other” compensatory time. The term “other” compens-

atory time off means hours during which an employee is

not working and which are not counted as hr ars worked

during the period when used. For examp!r, a collective

bargaining agreement may provide that compensatory

time be granted to employees for hours worked in excess

of 8 in a day, or for working on a scheduled day off in a i

non-overtime workweek. The FLSA does not require :

compensatory time to be granted in such situations.

LON RD Oe Te

(b) Compensatory time which is earned and accrued ;

by an employee working hours which are “overtime” t

hours under State or local law, ordinance, or other :

provisions, but which are not overtime hours under

section 7 of the FLSA is also considered “other” com-

pensatory time. For example, a local law or ordinance

may provide that compensatory time be granted to

PANO ET ELE ONT RIS me

6la

employees for hours worked in excess of 35 in a

workweek. Under section 7(a) of the FLSA, only hours

worked in excess of 40 in a workweek are overtime

hours which must be compensated at one and one-half

times the regular rate of pay.

an employee for employment in excess of a standard

established by the personnel policy or practice of an

employer, or by custom, which does not result from

the FLSA provision, is another example of “other”

compensatory time.

(d) The FLSA does not require that the rate at which

“other” compensatory time is earned has to be at a rate

of one and one-half hours for each hour of employment.

The rate at which “other” compensatory time is earned

may be some lesser or greater multiple of the rate or the

straight-time rate itself.

(e) The requirements of section 7(0) of the FLSA,

including the limitations on accrued compensatory time,

do not apply to “other” compensatory time as described

above.

x *x *

62a

APPENDIX G

MEET & CONFER AGREEMENT BETWEEN

HPOU & CITY OF HOUSTON

Article 33. Non-exempt Officer Compensatory Time Accrual

All non-exempt officers may accumulate up to a maximum of

480 hours of compensatory time. Any hours accumulated in

excess of 480 shall be paid automatically as overtime in

compliance with all state, local and federal laws. All

compensatory time balances that non-exempt officers have on

12-31-01 shall be frozen at the officer's rate of pay (all pay

except equipment and clothing allowance) on that date and

may be utilized in the normal course of business, paid at

retirement or utilized in the Phase Down Program.

1. Compensatory Time Use. An officer who requests to

take accrued compensatory time off shall be allowed

to do so, provided—

(a) the request is made no less than seventy-two (72)

hours prior to the beginning of the shift during

which the time off is to be used; and

(b) no timely request to use compensatory time off

shall be refused unless the refusal is preceded by

an effort to find a replacement officer in accord-

ance with the following procedure;

(i) The “Red Book” currently used to sign up for

time off is full under Departmentally estab-

lished minimum staffing levels. It is expressly

agreed and presumed that operation of the

Department below these levels would create

an undue burden on the delivery of police

service during the shift.

(ii) If the “Red Book” is full, the officer request-

ing the time off may find a qualified officer

desiring to work as a replacement. An officer

(iii)

63a

may use a replacement for compensatory time

off a maximum of two times a month. Any

request more than twice a month may be

approved or denied by the Department at its

sole discretion. An officer may not volunteer

as a replacement officer for time during which

he or she is otherwise scheduled to work. At

the Department’s option, time as a replace-

ment officer shall be paid at straight time (base

and longevity only) as an assignment pay; or/

will be credited to an officer’s compensatory

time bank at time and one-half. No officer may

volunteer as a replacement for another officer

for whom the replacement has volunteered in

the previous pay period unless specifically

authorized by the shift commander. Replace-

ment officer volunteers are not qualified for

straight time pay unless the replacement

officer works less than 86 hours in a 14-day

pay period. The 86 hour 14-day pay period

will apply only to volunteer replacement

officers’ time. See paragraph (3) below. The

Meet and Confer Agreement will continue to

set the overtime compensation rules for all

other work.

If no replacement is found under the pro-

visions of section 1(b)(ii) above, the request

may be refused but not solely on the basis of

pre-established staffing levels. A refusal under

these rules will constitute a valid determi-

nation that without the officer, the delivery of

necessary police services on the day and

during the shift would be jeopardized.

64a

APPENDIX H

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

[Filed Feb. 3, 1999]

NO. CV 93-3441-GHK (RNBx)

MICHAEL L. KIMPEL et al.,

Plaintiffs,

vs.

WILLIE WILLIAMS et al.,

Defendants.

MEMORANDUM AND ORDER

In our June 24, 1998 order, we directed counsel to brief the

issue of available remedies for violations of the standards in

the Fair Labor Standards Act (“FLSA”) governing employee

use of compensatory time off (“CTO”). In hearings on

October 26, 1998, and October 28, 1998, and through further

briefing, counsel have presented their arguments and

authorities on the issue. We have considered counsel’s

briefing, arguments, and the relevant authorities. We rule as

follows:

I. INTRODUCTION

The FLSA permits employees of a public agency to receive

CTO in lieu of cash overtime payment. 29 U.S.C. § 207(0).

' In the October 28, 1998 hearing and in a written submission filed on

November 17, 1996, plaintiffs limited themselves to three theories of

liability for violations of the FLSA’s CTO provision. 29 U.S.C.

§ 207(0)(5). This ruling addresses the narrow question of what remedies

_ are available under Theory three.

65a

The public agency can use this CTO option only pursuant to

an agreement with representatives of its employees, or with

the employees themselves if they do not have representatives.

See 29 U.S.C. § 201(0)(2)(A). When employées with booked

CTO request its use, the employer must acquiesce within a

reasonable time if doing so will not unduly disrupt the

operation of the agency. See 29 U.S.C. § 207(0)(5); 29 C.F.R.

§ 553.25(d). Defendants have an agreement with plaintiffs’

representatives to utilize the statutory CTO provision.

II. PARTIES’ POSITIONS

Plaintiffs allege that defendants booked CTO for them, but

refused to let them use it in accordance with the FLSA’s

unduly disruptive standard. This conduct, plaintiffs claim,

violates 29 U.S.C. § 207(0)(5), entitling them to remedies

pursuant to 29 U.S.C. § 216(b), which provides in pertinent

part as follows:

~ Any employer who violates the provisions of section 206

or section 201 of this title shall be liable to the employee

or employees affected in the amount of . . . their unpaid

Overtime compensation . . . and in an additional equal

amount as liquidated damages.

29 U.S.C. § 216(b). Plaintiffs argue that “unpaid overtime

compensation” within the meaning of § 216(b) includes CTO

that defendants had improperly withheld from plaintiffs in

violation of the unduly disruptive standard. As such plaintiffs

should be entitled to, among other things, li

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