PUBLISH
UNITED STATES COURT OF APPEALS
Filed 6/6/96
FOR THE TENTH CIRCUIT
______
KENNETH HAMILTON, on behalf of )
himself and all other employees )
of the Tulsa County Public )
Facilities Authority similarly )
situated, )
)
Plaintiff-Appellant, )
)
v. ) No. 95-5247
) (D.C. No. 94-CV-1159)
TULSA COUNTY PUBLIC FACILITIES ) (N. Dist. of Okla.)
AUTHORITY, )
)
Defendant-Appellee. )
______
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
(D.C. No. 94-C-1159-K)
______
Michael T. Keester (Steven A. Broussard with him on the brief) of
Hall, Estill, Hardick, Gable, Golden & Nelson, Tulsa, Oklahoma,
for appellee.
Eric B. Bolusky of Lester & Bryant, Tulsa, Oklahoma, for
appellant.
______
Before ANDERSON, BARRETT, and MURPHY, Circuit Judges.
______
BARRETT, Senior Circuit Judge.
______
After examining the briefs and the appellate record, this
panel has determined unanimously to honor the parties’ request for
a decision on the briefs without oral argument. See Fed. R. App.
P. 34(f); 10th Cir. R. 34.1.9. The case is therefore ordered
submitted without oral argument.
Kenneth Hamilton, George Bradley, Eddie Ray Tearel, and
Rosalee Wood (collectively “Appellants”) appeal from the district
court’s Order granting Tulsa County Public Facilities Authority’s
(TCPFA) Motion for Summary Judgment and denying Appellants’ Motion
for Summary Judgment.
Appellants are former employees of TCPFA. Hamilton, Bradley,
and Tearel performed maintenance work for TCPFA. Wood was a
security guard.1 During their employment with TCPFA, Appellants
were compensated at their regular rate of pay for hours worked in
excess of forty hours per week.
TCPFA is a public trust which manages the Tulsa County
Fairgrounds. Tulsa County is the beneficiary. By its Charter,
TCPFA’s primary purpose is to “establish, provide, maintain and
promote recreational centers, agricultural and industrial
expositions, fairs, trade shows and other recreational facilities
and activities.” It is undisputed that more than 50% of TCPFA’s
income is derived from recreational or amusement activities,
including the Tulsa State Fair, horse racing, amusement and water
1
Prior to this action, Wood filed a claim for overtime
pay under § 207(a) of the FLSA with the Department of Labor. Her
claim was denied on the grounds that TCPFA was exempt as an
amusement or recreational establishment.
- 2 -
parks, and baseball.
Appellants filed this action to collect unpaid overtime
compensation for hours worked in excess of forty hours per week
pursuant to the Fair Labor Standards Act (the FLSA), 29 U.S.C. §
207(a).2 TCPFA defended on the basis that it was not required to
pay Appellants overtime under § 207(a), because it was statutorily
exempt pursuant to the amusement or recreational establishment
exemption to the FLSA, 29 U.S.C. § 213(a)(3).
On October 12, 1995, the district court granted TCPFA’s Motion
for Summary Judgment finding/concluding that TCPFA was an amusement
or recreational establishment and that the exemption found in 29
U.S.C. § 213(a)(3) applied.
On appeal, Appellants contend that the district court erred in
granting TCPFA’s Motion for Summary Judgment because: (1) they were
not covered by the exemption, inasmuch as they were not serving in
traditional recreational or amusement activities; and (2) TCPFA
does not meet the criteria of a single establishment under the
recreational and amusement exemption, inasmuch as the various
businesses on the fair grounds constitute separate establishments.
We review a district court’s grant or denial of summary
judgment de novo, applying the same legal standard used by the
2
On December 16, 1994, Hamilton filed his complaint.
Bradley and Tearel filed Consents of Individuals to Become Party
Plaintiff in Collective Action under § 16(b) of the Fair Labor
Standards Act on December 29, 1994. Wood filed her consent to
join on February 17, 1995.
- 3 -
district court. Wolf v. Prudential Ins. Co. of Am., 50 F.3d 793,
796 (10th Cir. 1995) (citations omitted). Summary judgment is
appropriate if there is no genuine issue as to any material fact
and the moving party is entitled to judgment as a matter of law.
Id.
Generally, the FLSA requires employers to pay employees at
least one and one-half times their regular rate of pay for all
hours worked in excess of forty hours per week as “overtime
compensation.” 29 U.S.C. § 207(a). However, the FLSA specifically
exempts “any employee employed by an establishment which is an
amusement or recreational establishment . . ..” 29 U.S.C. §
213(a)(3). “‘Amusement or recreational establishments’ as used in
[§ 213(a)(3)] are establishments frequented by the public for its
amusement or recreation.” 29 C.F.R. § 779.385. An amusement or
recreational establishment employer qualifies for the exemption if
“(A) it does not operate for more than seven months in any calendar
year, or (B) during the preceding calendar year, its average
receipts for any six months of such year were not more than 33 1/3
per centum of its average receipts for the other six months of such
year. . . .” 29 U.S.C. § 213(a)(3).
a.
It is undisputed that TCPFA’s average receipts for any six
months are not more than 33 1/3% of its average receipts for the
other six months of the year. Therefore, TCPFA qualifies as an
- 4 -
amusement or recreational establishment under § 213(a)(3)(B).
However, Appellants argue that TCPFA is not entitled to the
exemption under § 213(a)(3), because the type of work they
performed was not traditional amusement or recreational activities.
By its own terms, § 213(a)(3) of the FLSA exempts employees
employed by amusement or recreational establishments; it does not
exempt employees on the basis of the work performed at an amusement
or recreational establishment. It is the character of the revenue
producing activity which affords the employer the protection of the
exemption. 29 C.F.R. § 779.302. See Hays v. City of Pauls Valley,
74 F.3d 1002, 1006 (10th Cir. 1996); Jeffery v. Sarasota White Sox,
Inc., 64 F.3d 590, 596 (11th Cir. 1995); Marshall v. New Hampshire
Jockey Club, Inc., 562 F.2d 1323, 1331 n.4 (1st Cir. 1977); Brennan
v. Southern Productions, Inc., 513 F.2d 740, 746-47 (6th Cir.
1975).3 Since TCPFA is in the business of providing “amusement and
recreation” to the public and it has satisfied the requirements of
§ 213(a)(3)(B), its employees are exempt from the requirement of
the overtime provisions of the FLSA, 29 U.S.C. § 207(a).
3
In Brennan v. Six Flags Over Georgia, Ltd., 474 F.2d
18, 19 (5th Cir.), cert. denied, 414 U.S. 827 (1973), the Fifth
Circuit concluded that “[t]he nature of the work is what gives
rise to the need for an exemption; the exemption is not a subsidy
accorded to an employer because of his principal activities.” We
do not agree with this broad statement and decline to follow this
view, especially in light of the Fifth Circuit’s failure to do so
in Brennan v. Texas City Dike & Marina, Inc., 492 F.2d 1115, 1119
(5th Cir.), cert. denied, 419 U.S. 896 (1974), wherein the court
concluded that “its principal activity should be determinative of
the marina’s eligibility for an exemption.”
- 5 -
b.
Appellants contend that because the various businesses located
on the fairgrounds constitute separate establishments, TCPFA does
not meet the requirement of a single establishment under §
213(a)(3) in relation to Hamilton, Bradley and Tearel since they
were central maintenance employees who served more than one
“establishment” on the fairgrounds.
Appellants rely on Brennan v. Yellowstone Park Lines, Inc.,
478 F.2d 285 (10th Cir.), cert. denied, 414 U.S. 909 (1973), in
which we held that the various facilities in Yellowstone National
Park were separate and distinct establishments and not a single
integrated establishment and that, based on the agreements of the
parties, the central employees who worked for several or all of the
facilities were not exempt. Appellants reliance is misplaced.
Before we reach the issue in Yellowstone Park of whether an
employer’s individual operations are a single integrated
establishment or separate and distinct establishments, there must
be a common owner and/or operator.4
Unlike the employers in Yellowstone Park who owned and
operated all of the individual facilities in Yellowstone National
Park, TCPFA does not own or operate the other businesses located on
the fairgrounds; it simply leases the property to them. Therefore,
4
29 C.F.R. § 779.303 provides us with illustrative
examples of common ownership or operation.
- 6 -
the issue is solely whether TCPFA is an amusement or recreational
establishment in and of itself. Whether the other businesses
located on the fairground may or may not be amusement or
recreational establishments entitled to the exemption under §
213(a)(3) is irrelevant.
After reviewing the record, we conclude that TCPFA satisfies
the requirements of the amusement or recreational establishment
exemption. First, TCPFA manages the fairgrounds as a distinct
physical place of business. Second, it is undisputed that TCPFA’s
primary purpose is to establish, provide, maintain, and promote
recreational centers, agricultural and industrial expositions,
fairs, trade shows, and other recreational facilities and
activities. Therefore, TCPFA is an amusement or recreational
establishment within the meaning of § 213(a)(3) and its employees
are exempt from the FLSA.
AFFIRMED.