Houston Plce Offcr v. City of Houston

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 16, 2003
• Docket: 01-21117
• Status: Published

Opinion

United States Court of Appeals Fifth Circuit F I L E D April 29, 2003 REVISED JUNE 16, 2003 Charles R. Fulbruge III Clerk UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _______________________

No. 01-21117

_______________________

HOUSTON POLICE OFFICERS’ UNION; HANS MARTICIUC; ANDREA BURKE; STEVEN CAIN; RICHARD HAHN; MICHAEL LUMPKIN; SHAWN PALIN; CLYDE ROOKE; STEVEN MURDOCK; EIGHT HUNDRED EIGHTY-NINE ADDITIONAL COUNSELORS,

Plaintiffs-Appellants, versus

CITY OF HOUSTON, TEXAS,

Defendants-Appellees.

_________________________________________________________________

Appeal from the United States District Court for the Southern District of Texas

_________________________________________________________________

Before JONES, SMITH, and SILER,* Circuit Judges.

EDITH H. JONES, Circuit Judge:

The principal question raised in this appeal is whether

section 207(o)(5) of the Fair Labor Standards Act (“FLSA”) requires

a public agency to allow its employees the use of accrued

* United States Court of Appeals for the Sixth Circuit, sitting by designation. compensatory time on those days specifically requested by the

employees, unless to do so would “unduly disrupt” the agency’s

function. In support of this proposition, appellant Houston Police

Officers’ Union and others (collectively, the “Union”) argue that

this court must defer to various statements and regulations of the

Department of Labor construing section 207(o)(5). Because the

statutory language is clear, however, deference is inappropriate.

The summary judgment of the district court in favor of the City of

Houston (“City”) is accordingly affirmed.

BACKGROUND

The FLSA requires all employers, including states and

their political subdivisions, to provide overtime compensation for

employees who work more than 40 hours per week. 29 U.S.C. § 207

(2003). In the private sector, compensation for excess hours is to

be paid at a rate of not less than one-and-a-half times the

employee’s hourly wage. Id. at § 207(a)(1). To ease the burden on

public employers, Congress allows these entities to provide

overtime compensation in the form of compensatory time (“comp

time”) at a rate of one-and-a-half hours for every excess hour

worked. Id. at § 207(o)(1). An employer that would utilize this

provision must have a collective bargaining agreement with its

employees or agreements with individual employees explicitly

permitting such a practice. Id. at § 207(o)(2).

2 During the period covered by this litigation,1 the

Houston Police Department (“HPD”) administered comp-time usage by

way of a log known as the “Red Book,” one of which was kept in each

of the HPD’s units. A unit’s Red Book listed all of the officers

in the unit who were scheduled, for whatever reason, to be off-duty

on any given day. Each unit had a predetermined limit on the

number of officers who could be off on a particular day. This

limit was based on the shift commander’s estimate of the unit’s

manpower needs. The primary considerations in formulating this

estimate were the unit’s anticipated workload (based on historical

trends), the unit’s efficiency, and the unit’s ability to tolerate

disruption in its operations. In general, the Shift Commanders

(with approval from Division Commanders) limited the spaces in the

Red Book to ten percent of the unit’s staff. An officer wishing to

use his accrued comp time had to sign his name in his unit’s Red

Book for the day(s) he wished to take off. If the Red Book’s limit

for the requested day had not been reached, the officer received

his requested comp time.

The Union was displeased with this system, as it could

frustrate an officer’s attempt to choose the dates on which he

1 The parties have stipulated that they have been in agreement since July 2001 regarding the manner in which accrued comp time is to be used. Because the Union’s suit is for past damages, the parties’ current agreement does not moot the statutory interpretation question this case presents.

3 would use comp time. Instead of allowing an individualized

assessment of the inconvenience that an officer’s absence on a

particular day might place on his unit, the Red Book system imposed

an inflexible ten-percent limit on all days. Forced by the

department to work overtime at the HPD’s convenience, members of

the Union would have preferred to use comp time for their

convenience.

The Union accordingly sued the City in federal court,

alleging, inter alia, that the HPD’s Red Book system violated the

FLSA by failing to provide individualized assessments of the

disruption that comp-time requests over and above the ten-percent

limit might cause to the operations of the HPD.

Upon receiving cross-motions for summary judgment, the

district court entered summary judgment for the City, holding that

the FLSA does not grant the employees of public agencies the right

to use their accrued comp time on days of their own choosing. The

Union appealed.

STANDARD OF REVIEW

This court reviews the grant of summary judgment de novo,

applying the same standards as the district court. Sherrod v.

American Airlines, Inc., 132 F.3d 1112, 1119 (5th Cir. 1998);

McInnis v. Alamo Cmty. Coll. Dist., 207 F.3d 276, 279 (5th Cir.

1998). Summary judgment under Rule 56 of the Federal Rules of

4 Civil Procedure is appropriate only “if . . . the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled

to judgment as a matter of law.” FED. R. CIV. P. 56(c).

A fact is material if it could affect the outcome of the

lawsuit, and a dispute about a material fact is genuine if the

evidence is such that a reasonable jury could return a verdict for

the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986). Reviewing courts must look at the evidence and

draw all inferences therefrom in a light most favorable to the non-

moving party. Hibernia Nat’l Bank v. Carner, 997 F.2d 94, 97 (5th

Cir. 1993).

DISCUSSION

Two issues are raised on appeal: what is the proper

interpretation of section 207(o)(5), and whether the HPD correctly

applied the provision to its operations. We discuss each issue in

turn.

I. Section 207(o)(5)

The FLSA provides, in pertinent part, that:

[a]n employee of a public agency which is a State, political subdivision of a State, or an interstate governmental agency— (A) who has accrued compensatory time off . . . and

5 (B) who has requested the use of such compensatory time, shall be permitted by the employee’s employer to use such time within a reasonable period after making the request if the use of the compensatory time does not unduly disrupt the operations of the public agency.

29 U.S.C. § 207(o)(5). The litigants offer two conflicting

interpretations of this provision. The City contends that the

phrase “within a reasonable period after making the request”

obliges an employing public agency to authorize an employee’s use

of accrued comp time within a certain temporal range (a “reasonable

period”) following the date on which the request is made. Comp

time may be delayed, nonetheless, in the event that the employee’s

desired usage would “unduly disrupt” the agency’s operation.

Without gainsaying the plausibility of the City’s

interpretation, the Union advances another reading of this

requirement: The employing agency must allow the employee’s use of

comp time on the day specifically requested, unless it would

“unduly disrupt” the agency’s operation. The Union fortifies its

interpretation by arguing that it is advocated by the Department of

Labor in at least three separate and legally relevant venues: (1)

the statute’s implementing regulations, Application of the Fair

Labor Standards Act to Employees of State and Local Governments, 29

C.F.R. § 553 et seq. (esp. § 553.25), which the Department of Labor

enacted in 1987, pursuant to formal notice-and-comment rulemaking

6 (“Regulations”);2 (2) an opinion letter produced by the DOL’s Wage

and Hour Division in 1994, 1994 WL 1004861 (“Opinion Letter”);3 and

(3) the amicus brief filed by the Secretary of Labor in an action

resembling the instant case, DeBraska v. City of Milwaukee, 131 F.

Supp.2d 1032 (E.D. Wisc. 2000) (“Amicus Brief”).4

When construing a federal statute that has been

interpreted by an administrative agency, courts look first to the

language of the statute. If Congress has “directly spoken to the

2 See 29 C.F.R. § 553.25(d): “When an employer receives a request for compensatory time off, it shall be honored unless to do so would be ‘unduly disruptive’ to the agency’s operations. Mere inconvenience to the employer is an insufficient basis for denial of a request for compensatory time off. (See H. Rep. 99-331, p. 23.) For an agency to turn down a request from an employee for compensatory time off requires that it should reasonably and in good faith anticipate that it would impose an unreasonable burden on the agency’s ability to provide services of acceptable quality and quantity for the public during the time requested without the use of the employee’s services.” 3 The Opinion Letter states, “It is our position, notwithstanding [an agreement between the Police Officers Association and the City] that an agency may not turn down a request from an employee for compensatory time off unless it would impose an unreasonable burden on the agency’s ability to provide services of acceptable quality and quantity for the public during the time requested without the use of the employee’s services. The fact that overtime may be required of one employee to permit another employee to use compensatory time off would not be a sufficient reason for an employer to claim that the compensatory time off request is unduly disruptive” (emphasis added). 4 Amicus Brief at 7 (“In providing that an employee shall be permitted to use comp. time ‘within a reasonable period after making the request,’ Congress obviously intended to prescribe a minimum notice requirement, not a maximum time after the date of the leave request that comp. time may be used.”).

7 precise question at issue,” i.e. “[i]f the intent of Congress is

clear, that is the end of the matter; for the court, as well as the

agency, must give effect to the unambiguously expressed intent of

Congress.” Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc.,

467 U.S. 837, 842–43, 104 S.Ct. 2778 (1984). If the statute is

ambiguous, however,

the court does not simply impose its own construction on the statute, as would be necessary in the absence of administrative interpretation. Rather, . . . the question for the court is whether the agency’s answer is based on a permissible construction of the statute.

Id. at 843. The Chevron doctrine thus requires a litigant, such as

the Union, who would have a court defer to an agency’s regulations,

to jump two hurdles. He must show that the statute is in fact

ambiguous regarding the question at bar, and he must demonstrate

that the regulation’s statutory interpretation, whether or not

preferable, is permissible. Before considering the various

statements from the Department of Labor, then, the statute must be

carefully reviewed.

The text of section 207(o)(5) plainly defines the period

between the date the employee submits his request and the date the

employer allows the employee to use the comp time: the employee

“shall be permitted . . . to use such [comp] time within a

reasonable period after making the request.” 29 U.S.C. §

207(o)(5). As the City suggests, mandating a “reasonable period”

for use of comp time is different from mandating the employee’s

8 chosen dates. The language offers a span of time to the employer,

the beginning of which is the date of the employee’s request.

The Union responds in two ways to this grammatically

appealing interpretation. First, the Union asserts that “such

time” means “the specific time requested by the employee.” This is

untenable, however, because within section 207(o)(5) “time”

consistently refers to the number of compensatory hours to which an

employee is entitled, not, as the Union would have it, to the date

or dates on which an employee asks to be let off work. Words are

ordinarily interpreted to have a uniform meaning in a given

statutory context.

The Union also argues that “[t]he interplay between the

‘reasonable period’ and ‘unduly disrupt’ clauses generates

ambiguity within the language of the statute.” While the Union

concedes that it is possible that the “reasonable period” clause

refers only to the time between request and comp-time consumption,

the presence of the “unduly disrupt” clause raises the possibility

that the “reasonable period” clause refers, rather, to the time

between intended and actual date of comp-time consumption. We

understand the interaction between these two clauses quite

differently. Instead of obscuring the proper object of the

“reasonable period” clause, the “unduly disrupt” clause serves to

clarify its obvious meaning. The “reasonable period” clause

imposes upon the employer the obligation to facilitate the

9 employee’s timely usage of his accrued compensatory time. The

“unduly disrupt” clause suggests conditions, however, that would

release the public employer from the previously imposed condition.

The statute, thus construed, reflects a balance between obligation

and exemption.5

Finally, according to the Union, the City’s

interpretation expands the impact of the “reasonable period” clause

while leaving the “unduly disrupt” clause without meaning. Thus,

the Union contends, when an employee makes a reasonably timely

request for a specific period of comp-time leave, the employer must

grant it unless doing so would unduly disrupt the agency’s

operation for each such request. We have just explained how a

straightforward reading of the provision balances obligation and

exemption. But even more to the point, the Union’s explanation

requires linguistic contortion where it is obvious that Congress

could have chosen much simpler language to express the Union’s

desired policy. Had Congress intended to do as the Union suggests,

alternative statutory language is not hard to envision. Congress

5 Though there is no need to rest our argument on the cushions of armchair legislative history — the logic found in the statute’s plain text is sufficient for the question at hand — the events compelling Congress to enact this statute strongly suggest the prudence of construing these two phrases as a compromise between the interests of public agencies and their employees. For an exposition of such, see Justice Thomas’s discussion in Christensen v. Harris County, 529 U.S. 576, 578–580, 120 S.Ct. 1655 (2000). See also Moreau v. Klevenhagen, 508 U.S. 22, 25–28, 113 S.Ct. 1905 (1993).

10 might have worded subparagraph (B) to refer to an employee “who has

requested with reasonable advance notice the use of such

compensatory time,” while eliminating the “reasonable period”

language from the latter part of the sentence. Congress might

alternatively have substituted “as requested” for “within a

reasonable period” after making the request. That Congress did not

forthrightly choose such obvious means to describe employee rights

undermines the Union’s interpretation.

For all these reasons, we conclude that the statute does

not require a public employer to authorize comp-time use as

specifically requested by an employee (subject to the undue

disruption clause), but instead requires that the comp time be

permitted within a reasonable period after the employee requests

its use. Although this conclusion ends the analysis for Chevron

purposes, it is useful to address the errors in the Union’s

reliance on DOL interpretations referenced above.

First, the regulation implementing section 207(o)(5),

supra n.2, simply does not address whether the statute mandates an

employee’s specifically requested dates for comp time. The

regulation highlights that actual disruption, rather than “mere

inconvenience,” be caused to the agency as a justification for

denying comp-time use, but it neither addresses case-specific

determinations nor prohibits an agency from determining, as HPD has

done, that an absentee rate exceeding ten percent of a unit’s staff

11 actually jeopardizes the department’s ability to protect the

citizens of Houston.6 While the regulation would be entitled to

Chevron deference if it spoke to the issue at hand, and if the

statute were ambiguous, that case is not before us. See

Christensen, 529 U.S. at 587–88, 120 S.Ct. at 1663.

The Union’s additional administrative crutches include

the DOL’s 1994 Opinion Letter, supra n.3, and its Amicus Brief

filed in federal district court litigation, supra n.4. Contrary to

the Union’s view, we are not obliged to defer to these

interpretations of section 207(o)(5) under Auer v. Robbins, 519

U.S. 452, 117 S.Ct. 905 (1997), as that case concerns judicial

deference to administrative interpretations of the agency’s own

ambiguous regulations. Auer, 519 at 461, 117 S.Ct. 911; see also

Christensen, 529 U.S. at 588, 120 S.Ct. at 1662 (referring to “Auer

deference”); Moore v. Hannon Food Service, Inc., 317 F.3d 489 (5th

Cir. 2003).7 Nor is it clear, after United States v. Mead Corp.,

533 U.S. 218, 121 S.Ct. 2164 (2001), whether these pronouncements

6 We emphasize, moreover, that the Red Book limits were in practice ameliorated by an appeals process. See infra n.9. 7 The City’s reliance on Christensen wholly to forestall our deferring to these authorities is equally misplaced. See Barnhart v. Walton, 535 U.S. 212, 220–22, 122 S.Ct. 1265, 1271- 72(emphasizing that agency interpretations reached through less formal means than notice and comment rulemaking are not “automatically deprive[d]” of Chevron deference, and “[i]f this Court’s opinion in Christensen, suggested an absolute rule to the contrary, our later opinion in [Mead] denied the suggestion” (citations omitted)).

12 are sufficiently authoritative to merit Chevron deference. That

knotty issue may be pretermitted, however, because neither the

Opinion Letter nor the Amicus Brief persuades us that our

construction of section 207(o)(5) is wrong or that the provision is

ambiguous, as would be required for Chevron deference.

The Union also relies on court opinions that have

perceived ambiguity in section 207(o)(5), most notably a district

court in DeBraska v. City of Milwaukee, 131 F. Supp.2d 1032 (E.D.

Wisc. 2000), but also Judge Ryan’s dissent from a Sixth Circuit

opinion in Aiken v. City of Memphis, 190 F.3d 753 (6th Cir. 1999).

These cases fail to advance the Union’s argument, not only because

they are not legally binding, but also because they do not address

the threshold issue of statutory ambiguity.8

II. Application of Section 207(o)(5)

8 In DeBraska, the most the court provides in defense of its conclusory assertion that “[t]he language of the statute is somewhat ambiguous” is its ex post facto judgment that “the statute could have been better written to reflect either one of the competing interpretations.” 131 F. Supp.2d at 1034. Nor does Judge Ryan’s dissent, despite a thoughtful discussion of the application of the DOL Regulations to the case before that court, give the slightest consideration to the question of the statute’s ambiguity. Finally, the Union cites three other cases in which federal district courts found the statute to be ambiguous. Meyer v. Raleigh, 5:99 CV 324 BO(3) (E.D.N.C. Aug. 10, 2001); Long Beach Police Ass’n v. Luman, CV 99-13090 FMC (JMJX) (C.D. Cal. May 10, 2001); Canney v. Brookline, 2000 U.S. Dist. 16279 (D. Mass. October 19, 2000). The Union did not provide copies of these difficult-to- access decisions, and they are district court cases, from other circuits, that do not bind us.

13 The Union also attempted to adduce sufficient summary

judgment evidence to suggest that, under the HPD’s “Red Book”

system, complainant police officers were unable to use their

accrued comp time within a “reasonable period after making the

request.” After a careful review of the record, this court

concludes, as did the district court, that the Union has failed to

create a genuine issue of material fact on the HPD’s alleged

misapplication of section 207(o)(5).

The principal evidence to which the Union points consists

of the following: (1) the deposition of Joe L. Breshears (HPD

Executive Assistant Chief); (2) HPD General Order 300-07, September

18, 1995; (3) the data and testimony of Dr. P.R. Jeanneret (HPD

expert witness); and (4) the memorandum of G.S. Stewart (Assistant

Chief, South Patrol Unit, HPD). These documents do not, either

individually or collectively, present any evidence whatsoever that

the HPD’s Red Book system prevented the city’s police officers from

using accrued comp time within a “reasonable period after making

the request.” The most that can be found here is some slight

evidence of the fact that certain forms of police work,

particularly patrol duty, are ill-suited to the removal and

substitution of non-fungible officers.

To review the evidence briefly: In the deposition

testimony of Chief Breshears can be found a detailed description of

the manner in which the Red Book policy was formulated and

14 administered; in General Order 300-07 there is a formal policy

statement of the same; and in Chief Stewart’s memorandum are the

results of a poll saying, once again, that comp time could be taken

on a first-come, first-served basis. The sharpest version of all,

of course, is the information provided by Dr. Jeanneret, as his

data and testimony were prepared by the HPD in response to this

suit. In none of these reports is there the slightest hint that

the Red Book system, either in theory or practice, violated the

FLSA as interpreted above.9

Nonetheless, one of the Union’s points calls for a more

substantial response. This is that officers on patrol duty had

experienced rather more substantial delays in their ability to

consume their accrued comp time.

The report prepared by Dr. P.R. Jeanneret concluded with

the following statement: “For the most part, an employee who is

eligible for compensatory time off is able to obtain approval for

a specific time period requested without difficulty.” Dr.

Jeanneret goes on, however, to note an exception to this general

rule:

9 Even more surprising, the summary judgment evidence in this case also fails to sustain the Union’s own interpretation of the FLSA. In Chief Breshears’ testimony and Dr. Jeanneret’s report there is a strong suggestion that the HPD did a more-than-adequate job of responding, via an informal appeals system, to officers’ individual requests to override the Red Book’s theoretically mandatory ten percent absentee quota.

15 The exception to this conclusion occurs in Patrol and especially those divisions that have a high volume of calls for service. The divisions with high volumes of service calls where operations have been using below minimum staffing levels presented circumstances when not everyone might be able to obtain the specific compensatory time off they had requested. These relatively limited circumstances arise when the red book slots are filled and when making exceptions would present the division with safety concerns and unacceptable increases in response time to calls for service.

While the Union does not appear to dispute Dr. Jeanneret’s basic

conclusion, it argues that his qualification of the general rule is

significantly understated. What he fails to mention, the Union

argues, is that, of the over 5000 police officers in the HPD,

approximately 40% work in patrol. The exception thus swallows the

rule.

The Union’s clarification does not suffice to create a

fact issue concerning HPD’s violation of section 207(o)(5). First,

the proposition to which this factum constitutes an exception is

not an exception to the assertion that Houston police officers were

unable to take compensatory time “within a reasonable period after

making the request.” It is apposite, rather, to the proposition

that officers are “able to obtain approval for a specific time

period requested without difficulty.” As has been discussed, the

FLSA does not grant such a right. The HPD’s denial of such an

option to patrol officers cannot, therefore, be actionable.

We also note, moreover, that this exception would be void

of legal significance even if the Union’s reading of the FLSA were

16 correct. This is so because requiring comp-time usage-on-demand

would, as Dr. Jeanneret’s uncontroverted analysis concludes,

“unduly disrupt” the operations of the HPD. As he said:

Such understaffing would severely impact the operational efficiency and effectiveness of HPD and undermine the Department’s continued efforts to provide the required levels of service within the budget allocations provided in the City of Houston.

In other words, local neighborhoods could be seriously adversely

affected when too many regular duty officers are off work. The

FLSA requires, generally, that officers be allowed to take comp

time within reasonable periods after making their requests. The

burden that this statute places upon public employers is waived,

however, in those circumstances where compliance would “unduly

disrupt the operations of the public agency.” This balance

represents the statutory compromise between the interests of public

agencies and their employees. Without adequate evidence placing

Dr. Jeanneret’s conclusion of undue disruption into dispute, this

court must conclude, as did the district court, that the Union has

no claim cognizable under section 207(o)(5).

CONCLUSION

The clearly articulated details of section 207 of the

FLSA strike a balance between the employee’s right to use comp time

promptly and the public agency’s need to avoid disruption, a

balance expressed with sufficient clarity to resolve the

17 interpretive dispute before us. Moreover, the Union’s summary

judgment evidence is insufficient to create a fact issue over HPD’s

alleged misapplication of section 207(o)(5). This court

accordingly affirms the district court’s grant of summary judgment

to the City.

Judgment AFFIRMED.