Oliver v. Layrisson

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 96-30327
Summary Calendar
_____________________
TIMOTHY OLIVER,
Plaintiff-Appellee,
versus
J. EDWARD LAYRISSON, Sheriff,
Tangipahoa Parish,
Defendant-Appellant.
_______________________________________________________
Appeal from the United States District Court for
the Eastern District of Louisiana
(95-CV-3 G)
_______________________________________________________
January 13, 1997
Before REAVLEY, BARKSDALE and DENNIS, Circuit Judges.
PER CURIAM:*
Timothy Oliver, a former deputy sheriff for Tangipahoa
Parish, Louisiana, brought this suit against appellant J. Edward
Layrisson in his capacity as sheriff of the parish, seeking
recovery of uncompensated overtime under the Fair Labor Standards
Act, 20 U.S.C. § 201 et seq. (FLSA or Act). After a bench trial
*
Pursuant to Local Rule 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in Local Rule
47.5.4.
the district court entered judgment in favor of Oliver. We
affirm.
A. Constitutionality of Applying FLSA to Deputy Sheriffs
Layrisson first argues that the FLSA cannot constitutionally
be applied to sheriff’s deputies. He argues that congressional
powers under the Commerce Clause cannot be extended to deputies
in light of the Tenth Amendment and principles of federalism. In
Garcia v. San Antonio Metropolitan Transit Authority,1 the Court
expressly overruled National League of Cities v. Usery,2 and held
that the FLSA’s minimum wage and overtime provisions may
constitutionally be applied to state and local government
employers. In Gregory v. Ashcroft,3 concerning the applicability
of federal age discrimination legislation to the States, the
Court held that if Congress intends to alter the usual
constitutional balance between the States and the federal
government, such an intention must be unmistakably clear in the
language of the statute.4
1
469 U.S. 528 (1985).
2
426 U.S. 823 (1985).
3
501 U.S. 452 (1991).
4
Id. at 460.
2
By its terms the FLSA, subject to certain stated exemptions,
unmistakably applies to public employers and employees in
general, and to law enforcement personnel in particular.5
B. Personal Staff Exemption
Layrisson next argues that Oliver is not an employee under
the FLSA, because he falls within the “personal staff” exception
to the Act.6 The exception applies to employees selected by an
elected officeholder “to be a member of his personal staff.”7
The district court, in its memorandum opinion, correctly
considered the non-exhaustive factors we have enunciated for
deciding whether the exemption applies: (1) whether the elected
official has plenary powers of appointment and removal; (2)
whether the person in the position at issue is personally
accountable to only that elected official; (3) whether the person
in the position at issue represents the elected official in the
eyes of the public; (4) whether the elected official exercises a
considerable amount of control over the position; (5) the level
of the position within the organization's chain of command; and
5
See 29 U.S.C. §§ 203(e)(2)(C) (defining employee to
include individuals employed by a State or political subdivision
thereof), 207(k) (creating special rules for tours of duty by
employees engaged to fire protection and law enforcement
activities), 207(o) (special rules for compensation of public
employees with time off), 213(a)(20) (exemption for public law
enforcement agencies employing less than five law enforcement
employees).
6
29 U.S.C. § 203(e)(2)(C)(ii)(II).
7
Id.
3
(6) the actual intimacy of the working relationship between the
elected official and the person filling the position.8
The burden of proving an exemption to the overtime laws is
on the employer, and exemptions are narrowly construed.9
Further, we have noted the “highly factual nature” of the inquiry
necessary to determine the personal staff exemption.10
The district court correctly followed the law by looking to
the Teneyuca factors, recognizing that the factors are non-
exhaustive, placing the burden on the employer to establish an
exemption to the Act, and recognizing that exemptions are
narrowly construed. On the evidence presented, the court found
that as to the fifth factor there was testimony that Oliver
ranked 13th out of 260 deputies, but that otherwise the defendant
“did not present any evidence relevant to the ‘personal staff’
exemption.” Accordingly the court held that the employer had not
met its burden of establishing the exemption.
8
See Montgomery v. Brookshire, 34 F.3d 291, 295 (5th Cir.
1994); Teneyuca v. Bexar County, 767 F.2d 148, 151 (5th Cir.
1985). Although Brookshire concerned the personal staff
exemption of the Age Discrimination in Employment Act, 29 U.S.C.
§ 630(f), and Teneyuca concerned the personal staff exemption of
Title VII, 42 U.S.C. § 2000e(f), the language in these exemptions
is virtually the same as the language of the FLSA personal staff
exemption. Accordingly, we agree with the district court that
the same factors set forth in these cases should apply to this
FLSA case.
9
Smith v. City of Jackson, 954 F.2d 296, 298 (5th Cir.
1992).
10
Brookshire, 34 F.3d at 295; Teneyuca, 767 F.2d at 152.
4
There is no transcript of the trial in the record, and the
transcript request form in the record indicates that counsel for
Layrisson checked the box stating that “transcript is unnecessary
for appeal purposes.” The burden is on the appellant to secure a
transcript of those proceedings relevant to the appeal.11
Failure to provide a transcript is a proper ground for dismissal
of the appeal.12 Because the court correctly applied the law,
and without the transcript we are in no position to review the
evidence or lack thereof relating to the “highly factual” issue
of the personal staff exemption, we reject this ground for
reversal.
C. Limitations
Layrisson argues that Oliver’s claim is barred by
limitations. The Act provides that actions must be commenced
“within two years after the cause of action accrued . . . .”13
Oliver was employed until his termination on January 22, 1994.
He sought unpaid overtime for the period during which he worked
as a sergeant in the detective division from 1989 to 1993. He
filed suit on January 3, 1995.
11
Powell v. Estelle, 959 F.2d 22, 26 (5th Cir.), cert.
denied, 506 U.S. 1025 (1992).
12
Id.; Richardson v. Henry, 902 F.2d 414, 416 (5th Cir.),
cert. denied, 498 U.S. 901 (1990).
13
29 U.S.C. § 255(a).
5
Layrisson maintains that limitations runs from each payday
covering a pay period for which overtime is claimed. Numerous
courts, including our own, have held that in cases of repeated or
continuing violations of the FLSA, the limitations period begins
to run from each such payday.14
The district court reasoned that limitations here should run
from the date of Oliver’s termination under the unique provisions
of the FLSA covering “compensatory time” or “comp. time” for
public employees. Under 29 U.S.C. § 207(o), public employees may
be compensated with time off in lieu of overtime pay. The public
employee “who has accrued compensatory time off” under this
provision “shall, upon termination of employment, be paid for the
unused compensatory time” at either his average rate of pay for
the last three years or his final rate, whichever is higher.15
Without the transcript, we defer to the district court’s factual
finding that the employer followed a “comp. time” arrangement
under this provision. The court found that Oliver “accumulated
405.5 hours for which he did not receive ‘comp. time,’” and that
he requested and later pursued a cause of action for “overtime
hours which he had accrued but for which he had not been
compensated by time off from work, or ‘comp. time.’”
14
See, e.g., Halferty v. Pulse Drug Co., 821 F.2d 261,
271, modified on other grounds, 826 F.2d 2 (5th Cir. 1987).
15
Id. § 207(o)(4).
6
As a legal matter, we agree with the district court that
payment for unused compensatory time is due “upon termination of
employment” under § 207(o)(4), that Oliver’s claim for this
payment accrued on the date of termination, and that suit
therefore was timely brought within two years of this date.
While the statute provides that the employee must be given
compensatory time off within a reasonable time after it is
requested,16 the statute places no time limit on how long unused
compensatory time off may be accrued.
D Failure of Proof
Layrisson last argues that Oliver offered insufficient
evidence to make out a prima facie case under the FLSA. He
argues for example that the court erred in discounting the
credibility of a defense witness. Again, finding no error in the
district court’s careful legal analysis as presented in it
memorandum opinion, and without the transcript, we decline to
second guess the district court’s weighing of the evidence.
AFFIRMED.
16
Id. § 207(o)(5).
7