Calvao v. Town of Framingham

United States Court of Appeals
For the First Circuit

No. 09-1648

DUARTE CALVAO, ET AL.,

Plaintiffs, Appellants,

v.

TOWN OF FRAMINGHAM,

Defendant, Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, U.S. District Judge]

Before

Lynch, Chief Judge,
Boudin and Howard, Circuit Judges.

Jack J. Canzoneri with whom Mark A. Hickernell, Alan J.
McDonald, and McDonald Lamond & Canzoneri were on brief for the
appellants.
Christopher J. Petrini with whom Peter L. Mello and Petrini &
Associates, P.C. were on brief for the appellee.
John Foskett and Deutsch Williams Brooks Derensis & Holland,
P.C. were on brief for amici curiae City Solicitors and Town
Counsel Association, Massachusetts Municipal Association, and
Massachusetts Chiefs of Police Association, Inc., in support of the
appellee.

March 17, 2010
 LYNCH, Chief Judge. This case under the Fair Labor

Standards Act ("FLSA") raises an issue about whether a city or town

must give notice to its public safety officers as a matter of

federal law before the municipality takes advantage of a special

statutory exemption for these officers from usual overtime

requirements, 29 U.S.C. § 207(k). We hold no such notice is

required.

Plaintiffs are police officers of the Town of Framingham

who brought a putative class action suit against the Town in April

2005, alleging that the Town had failed to pay them sufficient

overtime in violation of the FLSA, 29 U.S.C. §§ 201-19, and seeking

damages. Anticipating the Town's defense, the officers sought a

declaratory judgment that the Town was ineligible for the FLSA's

limited public safety exemption from overtime, 29 U.S.C. § 207(k).

That exemption eases the FLSA's overtime pay requirements on public

employers who establish work schedules that meet statutory

requirements.

The district court granted partial summary judgment,

holding the Town met the eligibility requirements for the public

safety exemption. Calvao v. Town of Framingham, No. 05-10708, 2008

WL 2690358, at *4 (D. Mass. July 2, 2008). The parties have since

stipulated to judgment on the remaining issues.

We affirm the district court and reject plaintiffs'

argument that the Town was required to notify affected employees

-2-
before establishing a valid work period under § 207(k). The text

of the statute and the Department of Labor's interpretive guidance,

as well as our caselaw, confirm that a public employer need only

establish a § 207(k)-compliant work period to claim the exemption's

benefits without explicitly giving notice to the affected

employees. The Town has done so and is entitled to judgment. We

also reject plaintiffs' claim that the district court abused its

discretion by denying their motion to strike certain evidence.

I.

A. Legal Background: The FLSA's Public Safety Exemption, 29
U.S.C. § 207(k)

The history and scope of the FLSA public safety exemption

set the background. "Congress enacted the FLSA in 1938 to

establish nationwide minimum wage and maximum hours standards."

Moreau v. Klevenhagen, 508 U.S. 22, 25 (1993); Ellen C. Kearns et

al., The Fair Labor Standards Act § 1.III, at 12-13 (1999). Later

amendments in 1966 and 1974 extended the Act's reach to state and

municipal employers. See Moreau, 508 U.S. at 25-26. Despite

congressional efforts to mitigate the effect of these amendments on

municipal coffers, e.g., Kearns et al., supra § 11.V.B., at 687,

the amendments triggered protracted litigation, as state and local

public employers mounted constitutional challenges to the FLSA's

regulation of state-employer compensation schemes. See Moreau, 508

U.S. at 26 & n.6 (collecting cases). In part, the employers were

successful. See Nat'l League of Cities v. Usery, 426 U.S. 833,

-3-
851-52 (1976) (invalidating 1974 amendments to the FLSA to the

extent that they "impermissibly interfere[d] with the integral

governmental functions" of states and municipalities).

In February 1985, the Supreme Court upheld Congress's

power under the FLSA to regulate the payments due to state and

local employees. See Garcia v. San Antonio Metro. Transit Auth.,

469 U.S. 528 (1985). State and municipal authorities reacted with

"grave concern" to the decision, due in part to "[t]he projected

'financial costs of coming into compliance with the FLSA--

particularly the overtime provisions.'" Moreau, 508 U.S. at 26

(quoting S. Rep. No. 99-159, at 8 (1985)).

In response, both the House and Senate held hearings on

the issue "and considered legislation designed to ameliorate the

burdens associated with necessary changes in public employment

practice." Id. Congress ultimately enacted several provisions

designed to allay public employers' fears and contain costs. See,

e.g., id. Congress also delayed enforcement of the FLSA against

state and local employers until April 15, 1986, to give them time

to comply with the Act's amended requirements. See Fair Labor

Standards Amendments of 1985, Pub. L. No. 99-150, § 2(c), 99 Stat.

787, 788-89.

Section 207(k) was originally passed in 1974. The

provision created a partial FLSA exemption for law enforcement and

fire protection personnel ("public safety personnel"). See 29

-4-
U.S.C. § 207(k). When Garcia held the FLSA applied to municipal

employees, § 207(k) became very important to municipalities. See

Martin v. Coventry Fire Dist., 981 F.2d 1358, 1361 (1st Cir. 1992).

Under the FLSA, employees other than public safety

personnel are generally entitled to payment "at a rate not less

than one and one-half times" their regular wages for any time

worked in excess of forty hours in a seven day period. 29 U.S.C.

§ 207(a)(1). However, the partial exemption in § 207(k) set a

higher threshold number of hours that public safety personnel can

work in a twenty-eight day work period–-or a proportional number of

hours in a shorter work period of at least seven days–-before these

employees become entitled to overtime compensation. See id.

§ 207(k).1

1
Section 207(k) reads in its entirety:

(k) Employment by public agency engaged in fire
protection or law enforcement activities.

No public agency shall be deemed to have violated
subsection (a) of this section with respect to the
employment of any employee in fire protection activities
or any employee in law enforcement activities (including
security personnel in correctional institutions) if--

(1) in a work period of 28 consecutive days the
employee receives for tours of duty which in the
aggregate exceed the lesser of (A) 216 hours, or
(B) the average number of hours (as determined by
the Secretary pursuant to section 6(c)(3) of the
Fair Labor Standards Amendments of 1974) in tours
of duty of employees engaged in such activities in
work periods of 28 consecutive days in calendar
year 1975; or

-5-
 In § 207(k), Congress set the maximum number of pre-

overtime hours; it gave the Secretary of Labor authority to

promulgate regulations establishing a lower ceiling. Id.

§ 207(k)(1)(B); see also O'Brien v. Town of Agawam, 350 F.3d 279,

290 n.20 (1st Cir. 2003). The Secretary did so in 1987, setting a

limit for law enforcement personnel of 171 hours over a twenty-

eight-day period, or the proportional equivalent over a shorter

span of time. See 29 C.F.R. § 553.230. For a twenty-four-day work

period, this ratio works out to approximately 147 hours, or about

forty-three hours every seven days. Id. § 553.230(c).

Section 207(k) eases the burden of the FLSA's overtime

provisions on state and local employers two ways. The partial

exemption provides for higher hourly standards before requiring the

payment of overtime; further, it permits overtime hours to be

computed over a workweek that may be longer than a forty-hour

workweek and that the employer selects. As we explained in Agawam:

(2) in the case of such an employee to whom a work
period of at least 7 but less than 28 days applies,
in his work period the employee receives for tours
of duty which in the aggregate exceed a number of
hours which bears the same ratio to the number of
consecutive days in his work period as 216 hours
(or if lower, the number of hours referred to in
clause (B) of paragraph (1)) bears to 28 days,

compensation at a rate not less than one and one-half
times the regular rate at which he is employed.

The work period at issue here falls under clause two.

-6-
 [Section 207(k)] raises the average number of hours
the employer can require law enforcement and fire
protection personnel to work without triggering the
overtime requirement, and it accommodates the
inherently unpredictable nature of firefighting and
police work by permitting public employers to adopt
work periods longer than one week. The longer the
work period, the more likely it is that days of
calm will offset the inevitable emergencies,
resulting in decreased overtime liability.

350 F.3d at 290 (internal citations omitted); see also Garcia, 469

U.S. at 554 n.17 (citing § 207(k)'s limited public safety exemption

as an illustration of Congress's attention to "the special concerns

of States and localities"); Avery v. City of Talladega, 24 F.3d

1337, 1344 (11th Cir. 1994) ("The work period concept was intended

to ease the overtime burdens of certain public employers.") (citing

52 Fed. Reg. 2012, 2024 (Jan. 16, 1987)); Martin, 981 F.2d at 1361.

Before a public employer may qualify for the limited

public safety exemption, two things must be true: (1) the employees

at issue must be engaged in fire protection or law enforcement

within the meaning of the statute and (2) the employer must have

established a qualifying work period. See Agawam, 350 F.3d at 290.

In turn, the qualifying work period must be at least seven but not

more than twenty-eight consecutive days. 29 C.F.R. § 553.224(a).

Overtime need not be paid unless the number of hours worked exceeds

ratios, different for police than for fire employees that are set

forth in Department of Labor regulations. 29 C.F.R. § 553.230.

There are other requirements that are not germane here.

-7-
 Assuming these conditions are satisfied, "the employer

can simply start paying its employees under § 207(k)." Agawam, 350

F.3d at 291. Further, the employer may opt to pay its employees

more than § 207(k) mandates without forfeiting the benefits of the

exemption. Id. at 291 & n.21; Milner v. Hazelwood, 165 F.3d 1222,

1223 (8th Cir. 1999) (per curiam). Public employers bear the

burden of proving they met § 207(k)'s requirements by clear and

affirmative evidence. Agawam, 350 F.3d at 290-91; Kearns et al.,

supra § 11.V.B., at 688.

B. Factual Background

Plaintiffs do not dispute the district court's

description of the Town's actions and agree that the officers were

law enforcement personnel within the meaning of the statute.

However, they argue that the court erred by concluding that the

Town could--and did--establish a qualifying work period under 29

U.S.C. § 207(k), without explicitly notifying affected employees it

was doing so. We briefly review the relevant facts.

In September 1985, after Garcia was decided, the Town's

personnel board prepared a memorandum that expressed "extreme

concern" at the application of the FLSA's wage and hour

requirements to municipal employers and sought guidance from the

Town's counsel. Over the ensuing months, the Massachusetts

Municipal Association and the National League of Cities gave the

Town information about the FLSA's impact on local employers. In

-8-
March 1986, the Town's director of personnel prepared a memo to

"all department heads, appropriate boards and commissions." That

memo provided information on employees exempt from the FLSA's

coverage and noted that "determination of who is exempt must be

made prior to April 15, 1986; the effective date for coverage under

the act."

On April 11, 1986, the Town's executive administrator

circulated a memo to the police chief, fire chief, personnel

director, and town counsel. The memo was addressed to the publicly

available personnel file maintained by the Town's board of

selectmen. Its subject line read "Declared Work Period–Police and

Fire Personnel." The memo stated, in its entirety,

Pursuant to section 207(K) of the Fair Labor
Standards Act and 29 C.F.R. Part 553, the declared
work period for Police and Fire regular shifts is
24 days. This declaration is effective with work
periods commencing April 13, 1986.

There is no evidence about whether the Town provided a copy of this

memo to the police officers' union or individual police officers,

or otherwise notified officers of the declared work period. That

lack of evidence is a key component of plaintiffs' claim that

summary judgment could not be entered.

Both before and after the April memo was circulated, the

Town's police officers worked a "4-2" schedule; that is, they

worked four consecutive days followed by two days off duty. In

2000, as part of a new collective bargaining agreement, the police

-9-
officers' union negotiated a "5-3" schedule, which shifted the

officers' work cycle to five days on duty followed by three days

off. These schedules both divide evenly into a twenty-four day

work period and so are compliant with § 207(k).

II.

A. The Town Established a Qualifying Work Period within the
Meaning of § 207(k) and Was Not Obliged to Provide Notice
to Its Employees

Plaintiffs assert that the Town was required to give

affected employees notice in order to establish a § 207(k) work

period and qualify for the public safety exemption. Plaintiffs'

claim raises an issue of statutory interpretation and is before us

on summary judgment. For both of these reasons, our review is de

novo. See Chiang v. Verizon New England Inc., No. 09-1214, 2010 WL

431873, at *5 (1st Cir. Feb. 9, 2010). "We may affirm the district

court on any basis apparent in the record." Id.

We reject plaintiffs' argument in light of § 207(k)'s

text and history, as well as the interpretive guidance given by the

Department of Labor in its regulations. On the undisputed facts,

the Town's actions were sufficient to establish a qualifying work

-10-
period, despite the asserted lack of notice to its employees.2

Summary judgment was appropriate.

We start with the statutory text. The text of § 207(k)

does not specify that a public employer is required to establish a

work period or identify how an employer might do so. Further, the

text contains no requirement of notice to the affected employee.

29 U.S.C. § 207(k).

The Town points to related legislative history. Congress

explicitly rejected a proposal mandating employee agreement before

a § 207(k) work period could be established. Barefield v. Vill. of

Winnetka, 81 F.3d 704, 710 (7th Cir. 1996) (citing H.R. Rep. No.

953, 93d Cong., 2d Sess. (1974) (Conf. Rep.)); see also Agawam, 350

F.3d at 291 (noting that "employees' approval is not required"

under § 207(k)). The Town argues this is indicative that not only

was no agreement required but no notice was required. This reading

is consistent with Congress's goal of "ensur[ing] that public

agencies would not be unduly burdened by the FLSA's overtime

requirements." Kearns et al., supra § 11.V.B., at 687; see also

H.R. Rep. 93-913, at 2837-38 (1974) (describing the House's

original version of § 207(k), which provided for a complete

2
We will assume arguendo, to the officers' benefit, that
the Town's dissemination of the April 11, 1986, memorandum to the
various department heads, and subsequent maintenance of the
document as a public record, available for inspection under
Massachusetts law, see Mass. Gen. Laws ch. 4, § 7; id. ch. 66,
§ 10, did not constitute notice to its employees.

-11-
overtime exemption for public safety personnel to help ensure that

the FLSA would have a "virtually non-existent" impact on state and

local governments).

It is true that § 207(k)'s text does not prohibit giving

notice either. However, Congress expressly delegated

responsibility for implementing the statute to the Secretary of

Labor, see Moreau, 508 U.S. at 27 (citing 29 U.S.C. § 203),3 who,

after notice and comment, promulgated regulations, see 52 Fed. Reg.

2012; 51 Fed. Reg. 13402 (Apr. 18, 1986). These regulations make

it clear the Secretary rejected a notice requirement under

§ 207(k). Under these circumstances, "Congress clearly 'expect[ed]

the agency to be able to speak with the force of law,'" and we

"must defer to the regulations' resolution of a statutory

ambiguity, so long as it is 'reasonable.'" Rucker v. Lee Holding

Co., 471 F.3d 6, 11 (1st Cir. 2006) (quoting United States v. Mead

Corp., 533 U.S. 218, 229 (2001)).

3
When it enacted the 1985 amendments to the FLSA Congress
delegated authority to the Secretary to promulgate "such
regulations as may be required to implement" them. Fair Labor
Standards Amendments § 6, 99 Stat. at 790. Since these amendments
concerned, inter alia, alternative compensation for public
employees to whom "overtime compensation is required" by the FLSA,
29 U.S.C. § 207(o)(1), the implementing regulations necessarily
addressed both the 1985 amendments and prior FLSA provisions
concerning public employees, including § 207(k). See 29 C.F.R.
§ 553.2(a). The Secretary's interpretation of a § 207(k) "work
period" explicitly cited the 1985 delegation as a source of its
authority. 29 C.F.R. § 553.224.

-12-
 During rulemaking, the Secretary of Labor reviewed and

rejected a proposal to impose a notice requirement for § 207(k).

52 Fed. Reg. at 2024-25. The Secretary observed that unlike other

sections of the FLSA, which "require[] that there be an agreement

or understanding concerning compensatory time prior to the

performance of work, there is no requirement in the Act that an

employer formally state its intention or obtain an agreement in

advance to pay employees under section 7(k)." Id. at 2025

(emphasis added).

The resulting regulation, 29 C.F.R. § 553.224, plainly

rejected both a requirement that municipalities make a formal

statement of intention and a requirement that they obtain

agreement. The regulation explains that "any established and

regularly recurring period of work which, under the terms of the

Act and legislative history, cannot be less than 7 consecutive days

nor more than 28 consecutive days" suffices as a work period,

noting that "[e]xcept for this limitation, the work period can be

of any length, and it need not coincide with the duty cycle or pay

period or with a particular day of the week or hour of the day."

Id. § 553.224(a).

Section 553.224's reference to an "established" work

period is the foundation of plaintiffs' claim that an employer must

provide notice to employees to set up a § 207(k) work period. But

-13-
§ 553.224 includes no procedural steps of any kind, let alone a

notice requirement.

Our caselaw reflects in dicta the Secretary's

interpretation that federal law in § 207(k) does not require notice

to the affected employee, see Agawam,350 F.3d at 291; see also id.

at 291 n.21 ("The work period requirement is ordinarily not a high

hurdle."), as does the law in other circuits to have considered the

issue, see Milner, 165 F.3d at 1223 (per curiam) ("[T]he [§ 207(k)]

exemption need not be established by public declaration.");

Spradling v. City of Tulsa, 95 F.3d 1492, 1505 (10th Cir. 1996)

("[A] public employer may establish a 7(k) work period even without

making a public declaration, as long as its employees actually work

a regularly recurring cycle of between 7 and 28 days.") (internal

quotation marks and citation omitted); Barefield, 81 F.3d at 710

(finding a municipal employer entitled to § 207(k) exemption, even

though the work schedule at issue predated the enactment of the

provision and the employer "made no declaration of intent to come

under Section 7(k)") (internal quotation marks omitted).

Here, the Town has used a § 207(k)-compliant work period

at all relevant times. The Town's memo of April 11, 1986, shows

that its "4-2" and "5-3" work cycles are component parts of a

fixed, recurring twenty-four day work period. Cf. Agawam, 350 F.3d

at 291 (rejecting public employer's claim to the § 207(k) exemption

when the employer used six-day work cycles and could "not point to

-14-
a single statement or document indicating that it adopted a work

period longer than six days"). Both of these schedules are

consistent with the identified work period, as both divide evenly

into a twenty-four day period. See Avery, 24 F.3d at 1344 (holding

that a "five days on, two days off duty cycle, repeated four times"

constitutes a "valid twenty-eight day work period") (internal

quotation marks omitted). Additional memoranda discussing the

FLSA's imminent effective date and expressing the Town's intention

to take advantage of the public safety exemption further support

this conclusion.

Plaintiffs do not directly challenge the regulatory

framework outlined above. They instead urge that a subsequent

letter ruling by an administrator at the Department of Labor

mandates a notice requirement and is entitled to deference by this

court under Auer v. Robbins, 519 U.S. 452, 461 (1988), or Skidmore

v. Swift & Co., 323 U.S. 134, 140 (1944). That argument was not

properly presented to the district court and is waived. E.g.,

McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 22 (1st Cir. 1991). We

nonetheless address the claim to ensure clarity on this point of

law, and we reject plaintiffs' assertion for three distinct

reasons.

First, the administrator's letter ruling made no mention

of a notice requirement. It said only that "[a]n employer must

designate or otherwise objectively establish the work period . . .

-15-
and pay the affected employees in accordance with its provisions."

Dep't of Labor Ltr. Rul. FLSA-1374 (Jan. 3, 1994). The letter's

emphasis on "objectively establish[ing]" a work period is not

inconsistent with 29 C.F.R. § 553.224. To the contrary, it merely

paraphrases the regulation's requirement that employers make use of

an "established and regularly recurring period of work," id.

§ 553.224(a), in order to claim the benefits of the exemption.4

Second, the letter responded to an inquiry regarding a

specific decision by this court, Martin v. Coventry Fire Dist., 981

F.2d 1358 (1st Cir. 1992), which addressed different issues.5 When

responding to the inquiry, the administrator plainly stated that

the letter ruling was "based exclusively on the facts and

circumstances" presented. Dep't of Labor Ltr. Rul. FLSA-1374. The

letter is irrelevant to plaintiffs' present argument.

4
Plaintiffs' argument relies heavily on dicta in an Agawam
footnote, in which we, too, paraphrased this requirement, observing
that an employer must "announce and take bona fide steps to
implement a qualifying work period." Agawam,350 F.3d at 291 n.21.
Plaintiffs assert this language implicitly mandated a notice
requirement. Their reading is inconsistent with the text and
history of § 207(k) and its implementing regulations, and does not
reflect the standard we applied in Agawam.
5
In Martin, we affirmed a district court's ruling that the
fifty-three-hour workweek provided for firefighters by § 207(k)
should be used to calculate damages for firefighters who had not
been paid sufficient overtime. See 981 F.2d at 1359-62. There was
no indication that the defendant municipal employer in Martin had
not used a § 207(k)-compliant work period, nor did the Martin
plaintiff so argue. See id. at 1359-60.

-16-
 Finally, "[i]nterpretations such as those in opinion

letters . . . do not warrant Chevron-style deference." Christensen

v. Harris County, 529 U.S. 576, 587 (2000). To the contrary, such

letters "are 'entitled to respect' . . . only to the extent that

th[eir] interpretations have the 'power to persuade.'" Id.

(quoting Skidmore, 323 U.S. at 140). Here, the Secretary of Labor

explicitly rejected the very position that plaintiffs ascribe to

the administrator's letter, stating clearly during rulemaking that

employers need not formally declare their intentions to pay

employees under § 207(k). 52 Fed. Reg. at 2024-25. Even if

plaintiffs' reading of the letter were accurate, the letter's

inconsistency with the Secretary's earlier pronouncement would

render it unpersuasive. See Skidmore, 323 U.S. at 140.

Plaintiffs' argument fails. The Town was not required to

notify plaintiffs that it had established a § 207(k) work period.

Summary judgment was appropriately granted.

B. The District Court Did Not Abuse Its Discretion by
Denying Plaintiffs' Motion to Strike under Fed. R. Civ.
P. 37(c)(1)

Plaintiffs also challenge the district court's denial of

their motion to strike copies of the April 11, 1986, memorandum, as

well as related evidence. We review for abuse of discretion.

Poulis-Minott v. Smith, 388 F.3d 354, 357 (1st Cir. 2004).

Plaintiffs' primary claim is that the Town's failure to

"provide detail as to several alleged locations" of the memorandum

-17-
in its August 2007 supplemental response to interrogatories merited

sanction under Fed. R. Civ. P. 37(c)(1). See id. ("If a party

fails to provide information . . . the party is not allowed to use

that information . . . to supply evidence on a motion . . . unless

the failure was substantially justified or is harmless.").

Plaintiffs' argument fails. The Town provided plaintiffs

a copy of the memo in January 2006, as part of its initial

disclosure under Fed. R. Civ. P. 26. The copies at issue are

identical to that copy, except for nonsubstantive handwritten

markings, some of which apparently indicate where each copy was on

file. The memo's recipients were identified on its face, and

plaintiffs were free to probe the files of the relevant departments

for additional copies through discovery or a public documents

request. Assuming arguendo that the Town was required to detail

the location of various copies of the memo, the district court did

not abuse its discretion by concluding that any omission was either

substantially justified or harmless. Plaintiffs' related

evidentiary claims also fail.

III.

The district court's grant of summary judgment is

affirmed.

-18-