UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-20280
PAUL L. BLACKSHEAR,
Plaintiff-Appellant-Cross-Appellee,
VERSUS
THE CITY OF HOUSTON,
Defendant-Appellee-Cross-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(H-94-CV-2494)
July 8, 1997
Before GARWOOD, KING and PARKER, Circuit Judges.
PER CURIAM:*
Appellant Paul L. Blackshear (“Blackshear”) appeals the
district court’s judgment as a matter of law for the City of
Houston (“the City”) on his claims made pursuant to the Fair Labor
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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Standards Act, 29 U.S.C. §§ 201 et seq. (“FLSA”) and the Portal to
Portal Act, 29 U.S.C. § 251-262 (“PTPA”).
FACTS
Blackshear was the sergeant in charge of the Houston Police
Department’s (“Department”) Canine Training Unit (“Unit”). The
Unit was made up of Sergeant Blackshear and four other officers
with the rank of patrolman. Blackshear, like other Unit officers,
kenneled and cared for an assigned dog at his home. Blackshear
learned at a canine conference that he might be entitled to
overtime pay for time spent caring for the dog at home, and he
brought the issue to the Department’s attention in November 1993.
The Department did not change its policy of requiring the Unit
officers to care for their dogs at home without pay until August
12, 1994, after this suit was filed.
PROCEDURAL HISTORY
Blackshear1 brought suit against the City to secure overtime
pay for home care of the dogs, pursuant to 29 U.S.C. §§ 201 et
seq., Fair Labor Standards Act and the Portal to Portal Act, 29
U.S.C. §§ 251-262. The district court denied the city’s motion for
summary judgment in part, holding, inter alia, that the city had
not established an absence of genuine issue of fact concerning
whether or not Blackshear was exempt from overtime pay under an
1
Four other members of the Houston police department
originally joined Blackshear in the suit, but were non-suited and
have not appealed.
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administrative or executive exemption. The district court granted
the City’s motion for summary judgment in part, holding that
Blackshear’s position met the “salary test” prong of the executive
exemption under 29 C.F.R. § 541. The case was tried to a jury,
which returned a unanimous verdict for Blackshear. The district
court entered judgment for Blackshear, against the City in the
amount of $31,812 in overtime compensation, plus $31,812 in
liquidated damages under 29 U.S.C. § 216, $4,854.32 in costs and
$22,812.50 in attorneys’ fees. The district court then vacated the
judgment for Blackshear and granted the City’s motion for judgment
as a matter of law, finding that the evidence did not support the
jury’s verdict because the evidence established conclusively that
Blackshear was a “manager” as defined in 29 C.F.R. § 541, and
therefore exempt from overtime compensation.
ANALYSIS
Blackshear claims that he was due overtime pay under the Fair
Labor Standards Act (“FLSA”). The FLSA excludes from its overtime
requirements those employees working in a bona fide executive,
administrative or professional capacity. 29 U.S.C. § 213(a)(1).
The statute delegates the responsibility for defining “bona fide
executive” to the Secretary of Labor. 29 U.S.C. § 213(a)(1). The
City asserted and has the burden of proving that Blackshear falls
within this exception. See York v. Wichita Falls, Tex., 944 F.2d
236, 241 (5th Cir. 1991). To qualify as a bona fide executive the
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employee must: (1) be compensated on a salary basis of not less
than $250 per week (the “salary test”), (2) be primarily
responsible for management duties, and (3) customarily and
regularly direct the work of two or more other employees
(collectively the “duties test”). 29 C.F.R. § 541.1.; York, 944
F.2d at 241-242.
Blackshear contends that the district court erred in granting
summary judgment to defendants, finding that there was no factual
dispute concerning whether Blackshear met the salary test prong of
the executive exemption. The district court based its summary
judgment on the fact that Blackshear received an annual base
salary, noting that payment of an hourly rate for each hour worked
beyond a regular schedule does not defeat the executive exemption.
The salary test states that an employee who regularly receives
each pay period a predetermined amount not subject to reduction
because of variation in the quality or quantity of work performed
is salaried. 29 C.F.R. § 541.118(a)(1996). Blackshear offered
summary judgment evidence that his pay is “subject to” disciplinary
deductions because the Houston Police Department has a written
policy of imposing suspensions without pay as discipline for
violating rules of conduct. However, there is no evidence that
Blackshear has ever suffered such a sanction. The district court’s
summary judgment order does not address Blackshear’s contentions
and evidence that he does not meet the salary test because his pay
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is subject to reduction under § 541.118(a).
While this case was pending on appeal, the Supreme Court
approved the Secretary’s interpretation of the “subject to”
language: the standard is met “if there is either an actual
practice of making such deductions or an employment policy that
creates a ‘significant likelihood’ of such deductions.” Auer v.
Robbins, 1997 WL 65558 (U.S. Feb. 19, 1997). The Supreme Court
goes on to apply that interpretation to a police department policy
manual:
The policy on which the [officers] rely is contained in
a section of the Police Manual that lists a total of 58
possible rule violations and specifies the range of
penalties associated with each. All department employees
are nominally covered by the manual, and some of the
specified penalties involve disciplinary deductions in
pay. . . .[T]hat is not enough to render petitioners’ pay
“subject to” disciplinary deductions within the meaning
of the salary-basis test. This is so because the manual
does not “effectively communicate” that pay deductions
are an anticipated form of punishment for employees in
petitioners’ category, since it is perfectly possible to
give full effect to every aspect of the manual without
drawing any inference of that sort. . . . No clear
inference can be drawn as to the likelihood of a
sanction’s being applied to employees such as
petitioners. Nor . . . is such a likelihood established
by the one-time deduction in a sergeant’s pay, under
unusual circumstances.
Id. *5.
Blackshear argues on appeal we should reverse the partial
grant of summary judgment for defendants because the record does
not establish that there is no genuine issue of material fact
concerning whether or not he is “subject to” short-term loss of pay
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for disciplinary reasons and is therefore a non-salaried employee
covered by the FLSA’s overtime provision. We agree. The record
does not contain evidence clearly resolving the § 541.118(a) issue
one way or the other; since the City had the burden on this matter,
summary judgment for the City on the present record was improper.
Because the erroneous grant of summary judgment requires
reversal and remand for further proceedings, it is unnecessary for
us to reach the remaining points of error raised on this appeal.
CROSS APPEAL CHALLENGING JURISDICTION
On Cross-Appeal, the City challenges the jurisdiction of the
district court to hear this case. The City contends that the Fair
Labor Standards Act, as applied to the Houston Police Department,
exceeds Congress’ power under the Commerce Clause and violates the
Tenth and Eleventh Amendments.
The City acknowledges that the Supreme Court’s opinion in
Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528,
105 S. Ct. 1005, 83 L. Ed. 2d 1016 (1985) establishes that the
FLSA, as applied to a police department, is within Congress’
Commerce Clause authority. However, they argue that United States
v. Lopez, ___ U.S. ___, 115 S. Ct. 1624 (1995) calls Garcia into
question, because FLSA’s control of wages and hours does not
substantially effect interstate commerce. If the FLSA is not
within Congress’ commerce power, the application of the statute to
a local police department violates the Tenth Amendment by intruding
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on an area of authority reserved to the states. The City further
argues that the suit itself is precluded by sovereign immunity
guaranteed by the Eleventh Amendment, as the City did not consent
to suit, and there is no Commerce Clause or Fourteenth Amendment
basis for the FLSA, citing Seminole Tribe of Florida v. Florida,
___U.S.___, 116 S. Ct. 1114 (1996).
The Respondents in Auer, the St. Louis Board of Police
Commissioners, likewise challenged the district court’s
jurisdiction over the suit brought by police officers. They argued
that the Commerce Clause does not permit private persons to sue an
arm of the state in federal court, even if they are alleging a
violation of federal law. The Supreme Court rejected that
argument, holding that the Police Commissioners were not an “arm of
the State” for Eleventh Amendment purposes. Auer, at *2, n.1. We
find nothing in the record, briefs or arguments in this case that
cause us to question the district court’s jurisdiction. Id.; See
also, Garcia v. San Antonio Metropolitan Transit Authority, 469
U.S. 528, 105 S. Ct. 1005, 83 L. Ed. 2d 1016 (1985).
CONCLUSION
Based on the foregoing, we reverse the district court’s order
granting defendant’s motion for judgment as a matter of law and
remand this case for further proceedings.
REVERSED and REMANDED.
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