Blackshear,et al v. City of Houston,et a

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this opinion should not be published and is not precedent except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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