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September 7, 1994


The opinion of the court was delivered by: HERBERT J. HUTTON


 September 7, 1994

 Presently before the Court is the defendant City of Philadelphia's Motion for Summary Judgment as to Liability, the plaintiffs' Motion for Summary Judgment, the defendant's response and the plaintiffs' reply.


 This case is one of first impression in this circuit concerning the application of various provisions of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201, et seq. There are thirteen named plaintiffs, representing various ranks within the Police Department of the City of Philadelphia ("City") ranging from Patrol Officer to Chief Inspector. Pursuant to the opt-in provision of the FLSA, over 4,000 members of the Philadelphia Police Department have joined in this action. They allege that the City violated and continues to violate the FLSA's overtime compensation provision.


 The plaintiffs' FLSA claims revolve around the following two related sets of facts: (1) compensation paid to plaintiffs working the current shift schedule, known as the "Flex Schedule"; and (2) compensation paid to plaintiffs at the rank of Captain and above. In turn, the Court will briefly trace the development of each of these factual settings.

 A. The Genesis of the Flex Schedule

 Before 1990, the plaintiffs worked a schedule known as the "6-2 Schedule". Under the 6-2 Schedule, the plaintiffs worked for six days followed by two days off. The 6-2 Schedule included a "backwards rotation." In other words, an officer worked the 12:00 a.m. to 8:00 a.m. shift during one 6-2 rotation period, the 4:00 p.m. to 12:00 a.m. shift for his or her next rotation, the 8:00 a.m. to 4:00 p.m. shift next, then back to the 12:00 a.m. to 8:00 a.m. shift. While the 6-2 Schedule was in effect, employees were regularly scheduled to work 8 hour shifts.

 Employees of the Police Department are paid according to the provisions of the applicable collective bargaining agreement ("1988 CBA" or "CBA") between the FOP and the City. Under the CBA, employees were to be paid overtime for all hours worked in excess of forty hours per week. The 1988 CBA, which was in effect between July 1, 1988 and June 30, 1990, was renewed on July 1, 1990 ("1990 CBA" or "CBA"). It continued to provide for overtime when an employee works in excess of forty hours in a particular week.

 The Fraternal Order of Police ("FOP"), the official bargaining representative of the police officers employed by the City, and its members, referred to the 6-2 Schedule as the "Killer Shift". Recognizing that there was widespread dissatisfaction among the FOP and its members with respect to the 6-2 Schedule, the City agreed to fund a Shift Change Study Committee, which was composed of representatives of the FOP and the City. However, despite numerous attempts, the FOP and the City were unable to agree to a new schedule. Therefore, as required under the collective bargaining agreement then in effect between the parties, the issue was referred to an Act 111 Arbitration Panel ("Panel").

 The FOP and the City each submitted their proposed new schedules to the Panel. On November 21, 1989, the Panel rendered its decision. The decision (hereinafter "Arbitration Award") adopted a schedule referred to as the "5-2, 4-2 Flex Schedule" or, alternatively, the "4-2, 5-2 Flex Schedule" ("Flex Schedule").

 The Flex Schedule divides the Police Department into three platoons, with seven squads in each platoon. Under the Flex Schedule, each squad would work a basic 13 day cycle, consisting of five work days, followed by two days off, then four work days followed by two days off. For Platoon 3, this 13 day cycle never changes. For platoons 1 and 2, the 13 day rotation is altered once every three months. More specifically, for platoons 1 and 2, the rotation goes to 5-2, 5-2, 3-2, 5-2, then returns to the regular 5-2, 4-2 or 4-2, 5-2 cycle. The Flex Schedule increased the plaintiffs' normal work day shift from 8 hours to 8.25 hours per day. The plaintiffs are paid at their regular rate of pay for each 8 hour and fifteen minute shift.

 Overtime for sworn members of the Philadelphia Police Department, such as the plaintiffs, is credited on a daily basis during each pay period in the following manner. If an employee subject to the Flex Schedule works less than 15 minutes over their scheduled shift (up to 8 hours and 29 minutes), the employee receives no overtime. If an employee subject to the Flex Schedule works 15 to 29 minutes over their scheduled shift (at least 8 hours and 30 minutes up to 8 hours and 44 minutes), he or she receives overtime credit for 1/2 hour. If an employee subject to the Flex Schedule works 45 minutes or more over their scheduled shift, (at least 9 hours) he or she receives overtime credit for a full hour.

 B. The Genesis of the Claims by Commanders at the Rank of Captain and Above

 Police personnel at the rank of Captain and above ("Commanders") also work the Flex Schedule. They receive a set annual salary, as reflected in a pay schedule adopted by the City. This salary is based on the Commander's rank and longevity with the Police Department. Commanders receive their annual salary in bi-weekly payments.

 Pursuant to the 1990 collective bargaining agreement ("1990 CBA"), Commanders receive compensatory time for time worked beyond their scheduled shift on an "hour for hour" basis--one extra hour worked results in one hour of compensatory time accrued. Commanders accrue time in their compensatory time bank, their sick time bank, their vacation time bank and their holiday time, based on time served on the Department. If an official in the rank of Commander is absent from work for less than a day, the time missed is deducted from the time accrued in their compensatory time, sick time, vacation time or holiday time bank, if there is any balance in any of these time banks. If there is no balance in any of the time banks, pay is deducted for the time missed. The formula for determining the amount of leave time to be deducted is set out in the Philadelphia Police Department Directive 66, dated March 4, 1991.

 C. The Complaint

 The plaintiffs' Amended Complaint, filed on December 24, 1992, contains four counts. Count I is comprised of active and retired plaintiffs at the rank of patrol officer and all other plaintiff/members of the Police Department, active and retired, who worked the Flex Schedule since January 8, 1990. These plaintiffs claim that under the Flex Schedule they work an 8.25 hour shift, which amounts to 41.25 per week. They claim that such a schedule violates the FLSA's forty hour workweek requirement in that it requires them to work a minimum of 1.25 hours of overtime per week without compensation.

 The City, of course, disputes the plaintiffs' assertion that they are entitled to any overtime compensation under the FLSA. First, the City argues that it is exempt from the FLSA's forty hour workweek provision because it has adopted an alternative "work period" of 13 days pursuant to § 207(k). Alternatively, the City argues that the plaintiffs in Count I are not entitled to any overtime compensation because they receive a 30 minute paid meal period, which does not constitute compensable "work" time under the FLSA. They City argues that, even assuming it is subject to the forty hour workweek requirement, it owes no overtime compensation once the 30 minute meal period is deducted from each shift worked.

 As with Count I, the City asserts that it owes no overtime to the plaintiffs in Count II because it has adopted a § 207(k) work period of 13 days. Alternatively, the City asserts that roll call preparation for sergeants and lieutenants does not constitute compensable work. As a second alternative argument, the City asserts that even assuming sergeants and lieutenants are entitled to compensation for their meal periods, and assuming further that the plaintiffs' roll call preparation is compensable, the plaintiffs in Count II still do not work enough hours to entitle them to overtime compensation under § 207(k).

 Count III includes the claims of all active Commanders. The Commanders seek two forms of relief. First, they seek to have their compensatory time re-computed and awarded on a time-and-one-half basis for all compensatory time accrued in excess of 480 hours since 1986. They also seek to have all the FLSA overtime they actually worked recalculated to include the relief applicable to them pursuant to Counts I and II. They seek to have such overtime recalculated on a time-and-a-half basis before determining the number of hours accrued in excess of 480 hours. In Count IV, retired Commanders seek the same relief as that sought by the active Commanders in Count III. In response, the City argues that Commanders are "executive employees," who are exempt from the FLSA's overtime provisions pursuant to § 213(a). Alternatively, the City argues that the retired Commanders have already accepted a monetary payout for their accrued compensatory time at retirement, and that accordingly, no further amount is may be recovered.


 The parties conducted extensive discovery in this matter. Pursuant to this Court's Scheduling Order, the parties submitted a Stipulation of Uncontested Facts as to the liability issues (hereinafter "Stip."). The City also filed a Statement of Contested Facts, indicating the areas of disagreement between the parties. The plaintiffs and the City have now filed their cross-motions for summary judgment on the liability issues.


 A. The Standard for Summary Judgment

 The purpose of summary judgment is to avoid a pointless trial in cases where it is unnecessary and would only cause delay and expense. Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 50 L. Ed. 2d 748, 97 S. Ct. 732 (1977). When considering a motion for summary judgment, this Court shall grant such motion "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 a judgment as a matter of law." Fed.R.Civ.P. 56(c). When reviewing a motion for summary judgment, this Court will resolve all reasonable doubts and inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986).

 The inquiry into whether a "genuine issue" of material fact exists has been defined by the Supreme Court as whether "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). "As to materiality, the substantive law will identify which facts are material." Id.

 The Supreme Court articulated the allocation of burdens between a moving and nonmoving party in a motion for summary judgment in Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The Court held that where the movant is the defendant, or the party without the burden of proof on the underlying claim, the movant has the initial burden of showing the court the absence of a genuine issue of material fact, but that this does not require the movant to support the motion with affidavits or other materials that negated the opponent's claim. Id. at 323. The nonmovant must then direct the court to record evidence demonstrating the existence of a genuine issue of material fact. The Supreme Court further elaborated on the type of evidence that the nonmoving party must adduce to withstand a motion for summary judgment:

We do not mean that the nonmoving party must produce evidence in a form that would be admissible at trial in order to avoid summary judgment. Obviously, Rule 56 does not require the nonmoving party to depose her own witnesses. Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves, and it is from this list that one would normally expect the nonmoving party to make the showing to which we have referred [a genuine issue of material fact].


 In contrast, where "the party moving for summary judgment is the plaintiff, or the party who bears the burden of proof at trial, the standard is more stringent." National State Bank v. Federal Reserve Bank, 979 F.2d 1579, 1582 (3d Cir. 1992). To sustain its burden under such circumstances, the movant must make an affirmative showing that it is entitled to summary judgment. See id. ; Resolution Trust Corp. v. Gill, 960 F.2d 336, 341 (3d Cir. 1992).

 B. The Statutory Framework

 In 1985, the Supreme Court overruled its prior decision in National League of Cities v. Usery, 426 U.S. 833, 49 L. Ed. 2d 245, 96 S. Ct. 2465 (1976), and held that the FLSA applies to the states and their political subdivisions. Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 83 L. Ed. 2d 1016, 105 S. Ct. 1005 (1985). After Garcia, cities were potentially liable for violations of the FLSA's overtime pay requirements, whereas, in the nine years between National League of Cities and Garcia, there was no potential liability. Providing states and their subdivisions with an opportunity to conform their pay practices to the strictures of the FLSA, Congress passed an amendment delaying the application of the FLSA to the states until April 15, 1986. Federal Labor Standards Act Amendments of 1985, Pub. L. No. 99-150, § 2(c), 1985 U.S. Code Cong. & Admin. News (99 Stat.) 737, 788. The FLSA is now fully applicable to municipalities and thus is available to redress the claims of law enforcement personnel, such as the plaintiffs in the present case. See, e.g., Birdwell v. City of Gadsden, Ala., 970 F.2d 802, 804 (11th Cir. 1992).

 The heart of the FLSA is its mandate that covered employers must pay employees overtime for hours worked in excess of forty hours per week. Specifically, section 7(a) provides that:

except as otherwise provided in this section, no employer shall employ any of his employees who in any workweek is engaged in commerce or in the production of goods for commerce for a workweek longer than forty hours, unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.

 29 U.S.C. § 207(a)(1). Thus, as a general matter, overtime hours for a workweek begin after an employee has worked forty hours in such workweek. See id. ; Birdwell, 970 F.2d at 804; Wethington v. City of Montgomery, 935 F.2d 222, 224 (11th Cir. 1991). An employee's right to receive overtime compensation after working forty hours in a workweek is an important right, and, indeed, is one which a labor union cannot agree to waive on behalf of its members. See Barrentine v. Arkansas-Best Freight Sys., 450 U.S. 728, 67 L. Ed. 2d 641, 101 S. Ct. 1437 (1981).

 C. The Section 7(k) Exception

 The City argues that it is not subject to Section 7(a)'s forty-hour workweek requirement because of the applicability of an exception to the general rule applicable to law enforcement personnel. The exception, contained in Section 7(k), reflects Congress' recognition "that certain jobs are not easily susceptible to the workweek method of wage and time calculations." Wethington v. City of Montgomery, 935 F.2d 222, 224 (11th Cir. 1991).

 Section 7(k) provides in relevant part as follows:

No public agency shall be deemed to have violated subsection (a) of this section with respect to the employment of any employee in . . . law enforcement activities . . . if . . .
(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 . . . bears to 28 days, compensation of a rate not less than one and one-half the regular rate at which he is employed.

 29 U.S.C. § 207(k). Thus, "if the City adopted a work period of between 7 and 28 consecutive days, then the City is entitled to require its employees to work more hours without overtime pay." Birdwell, 970 F.2d at 804. The City bears the burden of proving, by a preponderance of the evidence, that it has adopted a 7(k) work period. Lamon v. City of Shawnee, Kan., 972 F.2d 1145, 1153-54 (10th Cir. 1992), cert. denied, 122 L. Ed. 2d 785, 113 S. Ct. 1414 (1993); cf. Birdwell, 970 F.2d at 805 (holding that City bears burden of proving adoption of 7(k) work period by "clear and affirmative evidence," but relying upon Tenth Circuit decision in Donovan v. United Video, Inc., 725 F.2d 577, 581 (10th Cir. 1984), which was implicitly overruled by Lamon.

 The starting point in analyzing the 7(k) exception is the language of the Department of Labor's ("DOL") regulations interpreting Section 7(k). Indeed, as a general matter, "the DOL's interpretative regulations under the FLSA "constitute a body of experience and informed judgment to which courts . . . may properly resort for guidance." Skidmore v. Swift & Co., 323 U.S. 134, 140, 89 L. Ed. 124, 65 S. ...

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