City of Dallas v. Massingill

McCRAW, Justice.

Robert L. Massingill filed a class action suit on behalf of the members of the Dallas police and fire departments against the City of Dallas, the City Manager, the Fire Chief, and the Police Chief (the City). Mas-singill asserts that the City has not provided class members with the number of vacation days required by Texas Revised Civil Statutes article 1269p, section 3. In a bench trial with stipulated facts, the court found that the City had failed to meet the statutorily mandated vacation requirements for policemen and firemen. The class members were to be awarded damages equal to a full day’s wages for each vacation day they were denied.

The City appeals by three points of error in which it asserts that the trial court erred: (1) in holding that the City of Dallas’ “Kelly Days” and personal holidays are not article 1269p, section 3 vacation days; (2) in holding that article 1269p, section 3 entitles members of the class to fifteen days of vacation during their first year of employment; and (3) in determining potential damages to class members without crediting Kelly days and personal holidays as vacation days. By one crosspoint, Massingill alleges that the trial court erred in holding that the average work week of fire fighters is fifty-six hours rather than fifty-four hours. We affirm the trial court’s judgment in part and reverse in part.

According to the stipulated facts, the personnel rules provide that each member of the Dallas police and fire departments is entitled to six officially designated holidays. Additionally, members also receive two personal holidays annually, to be taken the first and second halves of the year. These two personal holidays fulfill the City of Dallas regulations requiring uniformed fire department employees to receive eight holidays per year. Fire fighters who have a twenty-four hour work day are also given one paid day off every twelve weeks. These are called Kelly days.

In its points of error one and three, the City asserts that Kelly days and personal holidays are vacation days within the meaning of article 1269p, section 3, which provides:

Each member of [the fire department and police department] in any city of more than thirty thousand (30,000) inhabitants shall be allowed fifteen (15) days vacation in each year with pay; provided that [this section] shall not be applied ... unless such member shall have been regularly employed in such department or departments for a period of at least one (1) year.

The City claims that it should receive credit for Kelly days and personal holidays when damages are calculated. We disagree.

The term “vacation” and “holiday” are not defined under article 1269p. The court in Coffman v. City of Wichita Falls, 374 S.W.2d 798, 799 (Tex.Civ.App.1964, writ ref’d) defines “vacation” as an implied “recess or leave of absence, a respite from active duty; an intermission or rest period during which activity or work is suspended.” The Dallas personnel rules do not specifically define “vacation”, but it does define official holidays and separately sets out the guidelines for personal holidays:

HOLIDAYS

3.61(a) The following official holidays will be observed:

NEW YEAR’S DAY (January 1)
MEMORIAL DAY (Last Monday in May)
INDEPENDENCE DAY (July 4)
LABOR DAY (First Monday in September)
THANKSGIVING DAY (Fourth Thursday in November)
CHRISTMAS DAY (December 25) 3.61(b) Effective January 1, 1976, any person employed on the first working day of the month of January will, in addition to each official holiday, be enti-*336tied to an additional holiday of individual choice [personal holiday] which must be taken during the months January through June.
3.61(c) Effective July 1, 1976, any person employed on the first working day of the month of July will, in addition to each official holiday, be entitled to an additional holiday of individual choice which must be taken during the months July through December.

Dallas’ personnel rules and article 1269p both differentiate between the two types of non-work days by categorization and caption.

The stipulated evidence clearly demonstrates that Kelly days and personal holidays are subject to limitations and restrictions which are not imposed upon vacation days by the City of Dallas Personnel Rules: (1)Vacation days may accumulate over a two year period; Kelly days and personal holidays cannot be accumulated; (2) upon resignation or termination of employment a member is paid a lump sum for accrued vacation leave not taken and a deceased member’s estate is paid a lump sum for accrued vacation; there is no lump sum payment for Kelly days or personal holidays; (3) vacation days, once vested do not lapse; Kelly days are given every twelve weeks and if not taken, lapse; personal holidays must be taken during a six month period, and if not taken, lapse; (4) vacation days are given to all members of the fire and police departments; Kelly days are only given to firemen who work twenty-four hour shifts; (5) members can earn additional vacation time under incentive programs; Kelly Days are given every twelve weeks and cannot be increased; the member is only allowed two personal holidays and there is no incentive program to earn additional holidays.

Noting these patent differences, we hold that the trial court properly found that Kelly days and personal holidays are not equivalent to article 1269p vacation days. There is sufficient evidence of probative force to support this factual determination. See Pool v. Ford Motor Co., 715 S.W.2d 629, 633, 635 (Tex.1986). The City’s points of error one and three are overruled.

In their second point of error, the City complains that the trial court erred in holding that members of the class are entitled to fifteen days of vacation during their first year of employment because article 1269p, section 3 is not applicable during that time period. We agree. The statute declares that members shall be allowed fifteen days of vacation; provided that the provisions shall not be applied to any member unless he has been regularly employed for one year. TEX.REV.CIV.STAT. ANN. art. 1269p, § 3 (Vernon Supp.1986). We hold that the trial court improperly determined that the members are entitled to fifteen days of vacation during their first year of employment. However, we note section 3a of article 1269p states:

Number of vacation days and holidays

Firemen and Policemen shall have the same number of vacation days and the same number of holidays, or days in lieu thereof, that is granted to other municipal employees.

TEX.REV.CIV.STAT.ANN. art. 1269p, § 3a (Vernon Supp.1986). We, therefore, reverse that portion of the trial court’s judgment awarding members fifteen vacation days in their first year of employment, and remand to the trial court to determine the correct number of vacation days due to members in accordance with section 3a of the statute.

By crosspoint, Massingill asserts that the trial court erred in holding that the average work week of fire fighters is fifty-six hours rather than fifty-four hours. The stipulated facts discuss Kelly days and their effect on the number of hours in the average work week:

Originally, Kelly days were given so that firefighters’ average work week would not exceed fifty-four (54) hours per week, per year. It was believed at the time to be necessary in order to comply with the Federal Fair Labor Standards Act (FLSA). The United States Supreme Court has since held that FLSA is not applicable to City firefighters. The Fire *337Department need only comply with the State’s standard of sixty hours per week. Nevertheless, Kelly days have continued to be given up through now, even though there is no statutory or legal reason for doing so.

The Chief of the fire department distributed a notice to all members of the fire department on March 26, 1975, which stated:

Effective April 1,1975, the average work week for members assigned to the Fire Control & Rescue Operations Bureau will be reduced to fifty-four (54) hours per week. This reduction in average hours on duty per week will be accomplished by granting each member an additional twenty-four hours of leave each twelve (12) weeks. The additional 24 hours leave shall be known as “KELLY DAY.” The following objective criterions and guidelines are provided for the information and guidance of all concerned. OBJECTIVE: To provided a reduction in the number of hours on-duty in an average work week from 56 to 54 for personnel in the Fire Control & Rescue Operations Bureau.

The evidence demonstrates that the firefighters work twelve hour shifts and have twenty-four hours off. This averages out to be a fifty-six hour work week; however, the firefighters still receive the Kelly days every twelve weeks, thereby reducing their weekly hours.

Massingill is challenging the great weight and preponderance of the evidence. See Pool, 715 S.W.2d at 633. In reviewing the factual sufficiency or great weight and preponderance of the evidence, the appellate court must examine the entire record to determine whether the evidence supporting the finding is so weak, or the evidence to the contrary is so overwhelming, that the findings should be set aside. P.T. & E. Co. v. Beasley, 698 S.W.2d 190, 193 (Tex.App—Beaumont 1985, writ ref d n.r.e.); see Jauregui v. Jones, 695 S.W.2d 258, 262 (Tex.App.—San Antonio 1985, writ ref’d n.r.e.). We hold that the court’s finding that firemen work fifty-six hour weeks is so against the great weight and preponderance of the evidence that it is manifestly unjust. Massingill’s crosspoint is sustained.

We affirm the portion of the trial court’s judgment finding that Kelly days and personal holidays are not equivalent to vacation days; we reverse the portion of the judgment finding that members are entitled to fifteen vacation days in their first year of employment and remand for the trial court to determine the proper number of vacation days due to those members in accordance with article 1269p, section 3a. Further, we reverse the trial court’s finding that firefighters work a fifty-six hour week and remand for review in light of this opinion.

McCRAW, J., dissents.