IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-31017
BILLY G. ALLEN, JR., ET AL.,
Plaintiffs,
BILLY G. ALLEN, JR.; WILLIAM D. DEAN; RICHARD L.
DUTY; CHARLES GRAPPE; BOBBY HUTCHINS; A. D.
LOWE; JOHN MENDENHALL; GARY VALENTINE;
JOHNNY MOORE; MARILYN GAIL BURT; DALTON D.
SHIPP, JR.; BILLY WADE JENNINGS; SHERREL SMITH;
RODNEY STELL; GEORGE K. STEWART; BENNIE A.
RABORN; SAM TANNER; ROY FLOURNOY; JOHNNY
ROSS DAVID; WILEY MURPHY,
Plaintiffs-Appellees,
Cross-Appellants,
versus
SHERIFF’S DEPARTMENT, WEBSTER PARISH, ET AL;
Defendants,
ROYCE MCMAHEN, Individually & in his official capacity as
Sheriff, Webster Parish; LARKIN T. RISER, Individually & in
his official capacity as Sheriff, Webster Parish,
Defendants-Appellants,
Cross-Appellees.
Cons/w
No. 99-31328
BILLY G. ALLEN, JR., ET AL.,
Plaintiffs,
BILLY G. ALLEN, JR.; WILLIAM D. DEAN; RICHARD L.
DUTY; CHARLES GRAPPE; BOBBY HUTCHINS; A. D.
LOWE; JOHN MENDENHALL; GARY VALENTINE;
JOHNNY L. MOORE; MARILYN GAIL BURT; DALTON D.
SHIPP, JR.; BILLY WADE JENNINGS; SHERREL SMITH;
RODNEY STELL; GEORGE K. STEWART; BENNIE A.
RABORN; SAM TANNER; ROY FLOURNOY; JOHNNY
ROSS DAVID; WILEY MURPHY,
Plaintiffs-Appellees,
versus
SHERIFF’S DEPARTMENT, WEBSTER PARISH, ET AL;
Defendants,
ROYCE MCMAHEN, Individually & in his official capacity as
Sheriff, Webster Parish; LARKIN T. RISER, Individually & in
his official capacity as Sheriff, Webster Parish,
Defendants-Appellants.
Appeals from the United States District Court for
the Western District of Louisiana
(USDC No. 97-CV-221 )
_______________________________________________________
May 17, 2001
2
Before KING, Chief Judge, REAVLEY and JONES, Circuit Judges.
REAVLEY, Circuit Judge:*
Sheriff Larkin Riser and former Sheriff Royce McMahen of Webster Parish,
Louisiana appeal from judgment against them on an overtime wages claim brought by
several Parish deputies under the Fair Labor Standards Act (FLSA). The sheriffs contend
that the Riser administration is not liable for the McMahen administration’s violations of
the FLSA. Alternatively, they argue that exceptions to the FLSA’s standard overtime
requirements mandate a reduction in the dollar amount of the judgment, and they claim
that the district court improperly set aside deemed admissions. The deputies cross-
appeal, claiming that lump sum payments they occasionally received for working
overtime shifts were improperly credited against the judgment. We agree that the lump
sum payments may not be credited against the judgment, but we see no merit in the
sheriffs’ appeal.
At trial, the jury found that Sheriff McMahen’s administration willfully violated
the overtime provisions of the FLSA. The district court entered judgment against both
sheriffs. Because Sheriff McMahen is no longer in office, the deputies look to his
successor, Sheriff Riser, for satisfaction of the judgment. But Sheriff Riser argues he has
*
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.
3
no liability for the actions of the McMahen administration unless it is under the doctrine
of successor liability, which he claims should not apply here.
Neither Sheriff McMahen nor Sheriff Riser is individually liable for overtime
wage claims, since they paid wages only from official Parish funds and only as officials
of the Parish. It is only in their capacity as Sheriff of Webster Parish that the deputies
can assert a claim against them. The claim and judgment are properly seen as against
Webster Parish only.1 No issue of successorship is raised. That Sheriff Riser rather than
Sheriff McMahen now serves the Parish in this capacity is of no consequence.
Alternatively, the Sheriffs argue that two exceptions to the FLSA’s standard
overtime requirements apply here and mandate a reduction in the dollar amount of the
judgment. First, they assert that the deputies’ overtime should be calculated at half-time
according to the FLSA’s fluctuating workweek provision, rather than at the standard time-
and-a-half rate. An employer can calculate overtime wages according to a fluctuating
workweek if (1) the employee’s hours fluctuate from week to week, (2) the employee
receives a fixed weekly salary that does not vary with the number of hours worked, (3)
the salary exceeds minimum wage, (4) the employer and employee reach a clear mutual
understanding that the salary does not depend on the hours worked, and (5) the employee
receives additional pay for overtime at one-half of his per-hour salary.2 The district court
1
See Brandon v. Holt, 469 U.S. 464, 471-72 (1985); Bennett v. Pippin, 74 F.3d 578, 584
(5th Cir. 1996).
2
See 29 C.F.R. § 778.114; Flood v. New Hanover County, 125 F.3d 249, 252 (4th Cir.
1997).
4
concluded that neither the fourth nor fifth requirement was met here, stating that the only
mutual understanding was that no overtime would be compensated. We agree. The
sheriffs cite authority for applying the fluctuating workweek provision retroactively,
where these requirements are not met, in cases involving an employer’s good-faith
erroneous belief that its employees were exempt.3 But Sheriff McMahen did not act in
good faith, and no one believed the deputies were exempt. The exception does not apply.
Second, the sheriffs assert that the deputies overtime should be calculated
according to a twenty-eight day, 171 hour tour of duty, rather than according to the
standard forty-hour workweek. An employer may opt to calculate overtime wages on a
tour of duty basis for law enforcement personnel,4 and several witnesses testified at trial
as to the use of an extended tour of duty period. But the employees responsible for
payroll and scheduling testified that a tour of duty schedule was never used. Noting that
the sheriffs have the burden of proof on the issue, the district court determined they had
failed to meet that burden. We find no error in this determination.
In addition, the sheriffs claim that the district court abused its discretion in setting
aside deemed admissions under Federal Rule of Civil Procedure 36(b). Rule 36 provides
for deemed admissions as a sanction for untimely responses to requests for admissions.
3
See Blackmon v. Brookshire Grocery Co., 835 F.2d 1135, 1138 (5th Cir. 1988); Yadav
v. Coleman Oldsmobile, Inc., 538 F.2d 1206, 1207-08 (5th Cir. 1976). But see Rainey v.
American Forest & Paper Ass’n, Inc., 26 F. Supp. 2d 82, 101 (D.D.C. 1998).
4
See 29 U.S.C. § 207(k); 29 C.F.R. § 553.201(a).
5
The sheriffs contend that the district court should not have set aside the deemed
admissions in this case because the deputies offered no explanation for the untimeliness
of their response. The sheriffs offer no authority for this position, however. Rule 36(b)
requires the district court to consider only the presentation of the merits of the case and
prejudice to the defendant when setting aside deemed admissions. It does not require an
explanation for untimeliness. We see no error in the omission of such explanation.
On cross-appeal, the deputies contend that the district court erred by crediting
lump sum payments they occasionally received for working overtime shifts against the
amount of overtime compensation the sheriffs owed them. We agree that the crediting
was improper. According to the applicable regulation, “where extra compensation is paid
in the form of a lump sum for work performed in overtime hours, it must be included in
the regular rate and may not be credited against statutory overtime compensation due.”5
Here, the lump sum payments must be included in the deputies’ pay rates.
Because the parties have stipulated the amount of overtime compensation due in
case of the latter ruling, it is unnecessary to remand for new calculations. Instead, we
modify the judgment to include Option B,6 rather than Option A,7 from the parties’
alternative stipulations. Accordingly, the judgment of the district court is AFFIRMED as
MODIFIED.
5
29 C.F.R. § 778.310.
6
R. at 1663.
7
R. at 1662.
6
Allen v. Shrfs Dept Webster
Combined Opinion