Olsen v. Town of Loudon

2007 DNH 036

• Court: District Court, D. New Hampshire
• Decided: March 27, 2007
• Docket: 06-CV-477-JD
• Status: Published

Opinion

Olsen v . Town of Loudon 06-CV-477-JD 3/27/07 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Thomas M . Olsen

v. Civil N o . 06-cv-477-JD Opinion N o . 2007 DNH 036 Town of Loudon

O R D E R

Thomas M . Olsen brings two claims under the Fair Labor

Standards Act (“FLSA”), alleging that his former employer, the

Town of Loudon, failed to pay him compensation to which he was

entitled in violation of 29 U.S.C. §§ 206 and 207 and failed to

maintain accurate records of the hours he worked in violation of

§ 211. The Town of Loudon moves to dismiss Olsen’s claim that he

was not properly compensated while attending the New Hampshire

Police Standards and Training Academy. Olsen opposes the motion

to dismiss.

Standard of Review

In considering a motion to dismiss, the court “take[s] as

true all well-pleaded allegations and draw[s] all reasonable

inferences in the plaintiff’s favor.” Ezra Charitable Trust v .

Tyco Int’l, Ltd., 466 F.3d 1 , 5-6 (1st Cir. 2006). “The court

need not accept a plaintiff’s assertion that a factual allegation satisfies an element of a claim, however, nor must a court infer

from the assertion of a legal conclusion that factual allegations

could be made that would justify drawing such a conclusion.”

Cordero-Hernandez v . Hernandez-Ballesteros, 449 F.3d 2 4 0 , 244 n.3

(1st Cir. 2006). “‘A complaint should not be dismissed unless it

is apparent beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.’”

Stanton v . Metro Corp., 438 F.3d 119, 123-24 (1st Cir. 2006)

(quoting Conley v . Gibson, 355 U.S. 4 1 , 45-46 (1957)) (other

quotation marks omitted).

Background

Olsen alleges that he began working as a police officer in

Loudon on December 2 7 , 2004, and resigned in July of 2006.

During his employment, he was required to attend the Academy for

a twelve-week period instead of performing his regular duties as

a police officer. While at the Academy, Olsen was paid for forty

hours of work each week. He alleges that during that time, he

“routinely worked in excess of 40 hours per week, but was paid

for only forty hours per week.” Compl. at 3 .

2 Discussion

As part of his first claim, Olsen contends that he was not

compensated for the time beyond forty hours per week he worked

while attending the Academy. He asserts that failure to pay him

for the excess hours he worked violated the FLSA. Loudon moves

to dismiss Olsen’s claim arising from his time spent in training at the Academy on the ground that under the regulations

implementing the FLSA it was not required to compensate Olsen for

time he spent there in excess of his regular working hours.

Under the regulations promulgated pursuant to the FLSA, time

spent in training that is not voluntary and is related to the

employee’s job is generally compensable. 29 C.F.R. § 553.226(b).

Exceptions exist, however, when an employee attends specialized

training outside of regular working hours that is either required

by law for certification within a particular governmental jurisdiction or is required for certification by a higher level

of government. Id. In addition, police officers attending a

training facility “are not considered to be on duty during those

times when they are not in class or at a training session, if

they are free to use such time for personal pursuits. Such time

is not compensable.” § 553.226(c).

Loudon contends that any hours beyond forty in each week

Olsen spent in training at the Academy were not compensable under

3 § 553.226(b)(2) because the training was required for

certification by state law. Olsen argues, among other things,

that § 553.226(b) does not apply to compensation owed for

attendance at a training academy and that, instead, § 553.226(c)

governs that compensation. Loudon did not address the

application of § 553.226(c) in its motion or its reply. “In statutory construction, the more specific treatment

prevails over the general.” In re Lazarus, --- F.3d ---, 2007 WL

39640 at *6 (1st Cir. Jan. 9, 2007). While § 553.226(b)

addresses training outside of normal working hours, § 553.226(c)

more specifically addresses training by police officers at a

training facility such as a police academy. In the absence of

any reasoned basis to ignore § 553.226(c) in the circumstances of

this case, it would appear to provide the governing rule instead

of § 553.226(b). Because Loudon failed to address § 553.226(c), the regulation that appears to govern compensation under the FLSA

in this case, the motion is denied.

4 Conclusion

For the foregoing reasons, the defendant’s motion to dismiss

(document n o . 4 ) is denied.

SO ORDERED.

^ ™ ^ V LA J)'_____________ V J 1Joseph Joseph A. A. DiClerico7 DiClerico ___ Jr*.J __- United States District Judge

March 27, 2007

cc: Hugh T. Lee, Esquire David P. Slawsky, Esquire