David Rutlin v. Prime Succession, Inc. Kerley & Starks Funeral Homes, Inc., Jointly and Severally

220 F.3d 737, 6 Wage & Hour Cas.2d (BNA) 359, 2000 U.S. App. LEXIS 17432, 2000 WL 992110
CourtCourt of Appeals for the Sixth Circuit
DecidedJuly 20, 2000
Docket99-1042
StatusPublished
Cited by42 cases

This text of 220 F.3d 737 (David Rutlin v. Prime Succession, Inc. Kerley & Starks Funeral Homes, Inc., Jointly and Severally) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
David Rutlin v. Prime Succession, Inc. Kerley & Starks Funeral Homes, Inc., Jointly and Severally, 220 F.3d 737, 6 Wage & Hour Cas.2d (BNA) 359, 2000 U.S. App. LEXIS 17432, 2000 WL 992110 (6th Cir. 2000).

Opinions

COLE, J., delivered the opinion of the court, in which NORRIS, J., joined. MOORE, J. (pp. 744-52), delivered a separate dissenting opinion.

OPINION

COLE, Circuit Judge.

David Rutlin, a licensed funeral director and embalmer, filed this action against his former employer under the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201 et seq., claiming that he was not compensated for his overtime services and on-call time. The district court granted partial summary judgment to each party, finding, inter alia, that Rutlin was a professional and, therefore, exempt from the overtime requirements of the FLSA. The district court further found that Rutlin’s on-call time was not so restrictive as to require compensation. For the reasons that follow, we AFFIRM in part and REVERSE in part, and REMAND to the district court for further proceedings in accordance with this opinion.

I.

From 1968 until 1997, Rutlin was employed by Kerley & Starks Funeral Homes, Inc. and its successor, Prime Succession, Inc. (“Prime Succession”), as a licensed funeral director and embalmer. In order to become a licensed funeral director in Michigan, Rutlin was required to complete a year of mortuary science instruction and two years of college, including classes in chemistry and psychology; pass national board tests that covered embalming, pathology, anatomy, and cosmetology; practice as an apprentice for one year; and pass an examination given by the state. See Mich. Comp. Laws § 339.1806. Rutlin’s job responsibilities included embalming bodies and preparing them for funerals, counseling families, directing funerals, and supervising burials. Rutlin also did chores such as receiving and directing flower deliveries, arranging [739]*739for newspaper notices, mowing the lawn, and cleaning the funeral home.

From 1985 to 1997, Prime Succession paid Rutlin under five different salary arrangements. The district court described the five periods as follows:

1) From November 1974 to February 1995 (“Period I”), plaintiff was paid a salary of $1623.00 every two weeks with no overtime.
2) From February 1995 to March 1996 (“Period II”), plaintiff was paid on a “fluctuating workweek” plan. Under this plan, plaintiff received $1540.00 every two weeks and some overtime (one-half plaintiffs regular rate) for every hour worked over forty per week. Plaintiffs regular rate for any,given week was calculated by dividing his fixed salary by the number of hours worked that week.
3) From March 1996 to December 1996 (“Period III”), plaintiff was paid on a “guaranteed workweek” plan. Under this plan, plaintiff received $1750.00 every two weeks for all hours worked up to and including sixty hours, and overtime at one and one-half his regular rate for hours worked over sixty per wéek.
4) From January 1997 to [m]id-April 1997 (“Period IV”), plaintiff was paid a salary of $1750.00 every two weeks without overtime.
5) From [m]id-April 1997 to October 1997 (“Period V”), plaintiff was paid on an hourly basis with overtime at one and one-half times his regular rate for hours worked over forty per week.

Rutlin v. Prime Succession, Inc., 29 F.Supp.2d 794, 796 (W.D.Mich.1998) (footnote omitted).

As one of three funeral directors employed by Prime Succession, Rutlin was required to be on call during certain nights and weekends. When Rutlin was on call; Prime Succession’s phone line was transferred to his home, where he was responsible for answering calls. This duty was rotated, such that for two weeks Rutlin would be on call two week nights from 5 p.m. to 8 a.m., and the third week he would be on call over the weekend, from 5 p.m. Friday to 8 a.m. Monday.

In August 1997, Rutlin filed a complaint in Michigan state court, claiming that he was denied overtime pay and on-call compensation in violation of the FLSA, the Michigan Wages and Fringe Benefits Act (WFBA), MiCH. Comp. Laws §§ 408.471 et seq., and Michigan contract law. Prime Succession removed the case to federal court in October 1997; both parties then filed motions for summary judgment. On December 3, 1998, the district court granted partial summary judgment to each party.

The district court found that Rutlin was a professional employee during pay periods I through IV and, therefore, exempt from the FLSA’s overtime provisions. Accordingly, the district court granted Prime Succession’s motion for summary judgment for pay periods I through IV. With respect to pay period V, the district court granted summary judgment in favor of Rutlin, finding that he was not a professional during that time because he was not paid on'a salary basis. The district court thus held that Rutlin was entitled to overtime pay for pay period V.

As for on-call compensation, the district court granted summary judgment in favor of Prime Succession, finding that Rutlin’s on-call time was not so restrictive as to require pay. The district court stated:

Plaintiff admits that he could usually swap on call schedules with another funeral director in order to accommodate his plans, and that he could forward the phones and be reached by a pager if he had to leave home while on call. Plaintiff states that on average he received between 15 and 20 phone calls a night, taking up about one hour of his time, while he was on call. Sometimes plaintiff would be required to make other phone calls in response to the calls he received. Also, plaintiff received, on average, one “death call” per week. A [740]*740death call required the plaintiff to leave home, pick up the hearse, remove the body, and return the body to the funeral home. Plaintiff clocked in and out, and was compensated, for the time he spent on a death call. Finally, plaintiff stated that he was able to engage in personal activities while on call, including watching television, computing, talking on the phone with friends and family, engaging in activities with his wife, and going out to dinner. Given these facts, it is apparent to the Court that plaintiffs on call time was not “so onerous” as to prevent him from engaging in personal pursuits. Plaintiff had flexibility in his on call schedule, and the ability to leave his home. The phone calls plaintiff received, though fairly frequent, rarely involved calls to duty, or death calls. Finally, plaintiff was able to engage in a significant number of personal pursuits while on call. For these reasons, the Court finds that plaintiffs on call time is not compensable under the FLSA.

Rutlin, 29 F.Supp.2d at 799-800 (citation omitted).

In regard to Rutlin’s WFBA claims, the court granted summary judgment to Prime Succession for pay periods I through IV, based on the fact that the WFBA does not create an independent right to overtime pay. The court did not grant summary judgment to either party for pay period V on Rutlin’s WFBA claim.

Finally, the district court addressed Rutlin’s state contract law claims. The court found no evidence that Rutlin understood he was entitled to overtime pay for periods I through IV, but found there was á contract for overtime pay during period V. The district court granted summary judgment to Rutlin for this time period.

The parties then stipulated that the WFBA claim for Period V would be dismissed, to enable Rutlin to appeal to this court.

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Bluebook (online)
220 F.3d 737, 6 Wage & Hour Cas.2d (BNA) 359, 2000 U.S. App. LEXIS 17432, 2000 WL 992110, Counsel Stack Legal Research, https://law.counselstack.com/opinion/david-rutlin-v-prime-succession-inc-kerley-starks-funeral-homes-inc-ca6-2000.