Boelter v. City of Coon RapidsBoelter v. City of Coon Rapids
ORDER
This matter is before the Court on the parties’ cross-motions for summary judgment. In this case, two firefighters from the City of Coon Rapids (the “City”) allege that the City’s policy regarding military leave conflicts with various state and federal statutes. They bring this action against the City and Timothy Farmer, in his official capacity as the Fire Chief of the City, asking the Court to enjoin enforcement of the policy and to award damages for loss of pay, including overtime. Plaintiffs also seek an Order, together with damages, requiring Defendants to rescind all disciplinary action taken against them for refusing to follow orders implementing the City’s policy. For the reasons set forth below, the Court will grant Plaintiffs’ motion in part and deny it in part, and grant Defendants’ motion in part and deny it in part.
BACKGROUND
Plaintiffs Kenneth Boelter and Curtis Pargman are firefighters for the City of Coon Rapids. They are also members of the United States Air Force Reserves. As firefighters, Boelter and Pargman are required to work 24-hour shifts, from 8:00 a.m. one morning to 8:00 a.m. the next. Plaintiffs, on average, work seven of these 24-hour shifts every three weeks. This works out to be 168 hours for every 21-day cycle. Under the collective bargaining agreement between the City and the International Association of Firefighters Union Local No.1935, of which both Plaintiffs are members, Plaintiffs are entitled to compensation at an overtime rate of one and one-half times their normal rate for all overtime in excess of 159 hours in a 21-day cycle. Plaintiffs are entitled to the same amount of overtime compensation for all hours worked in excess of 159 hours under the federal Fair Labor Standards Act (“FLSA”),
At times, Plaintiffs’ responsibilities in the Reserves coincide with their shifts with the fire department. As members of the Reserves, they are required to report to duty for two weeks per year and at least one weekend per month. Both Boelter and Pargman also put in additional time with the Reserves, devoting approximately 65 days in total each year to military service. Their shifts in the Reserves generally run from 8:00 a.m. to 4:30 p.m., though they will last longer on occasion.
Until January, 1999, the City allowed firefighters serving in the military to take their entire 24-hour work shift as military leave. Moreover, the City paid firelight
Sometime in the fall of 1998, Plaintiffs asked their Fire Chief, Timothy Farmer, to review the City’s policy in light of state and federal military leave laws. Plaintiffs requested the Fire Chief to review the statutes because they believed that the hours they took for military leave should count towards the hours worked for purposes of overtime. According to Plaintiffs, they were entitled to up to 15 days of paid military leave under
After reviewing the relevant state and federal laws, however, the Fire Chief reached a different conclusion. Under his reading of
The City, consistent with the Fire Chiefs views, therefore instituted a new policy, the subject of which forms the basis for this lawsuit.
1
Under the new policy, firefighters who serve in the military must return to their work shifts at the fire department “immediately” after their shift in the military ends if they want to be paid under
In addition, as part of the new policy, the City requires each employee to submit a Military Time - Pay Request form prior to taking leave if possible, and after military duty with their payroll sheets, in order to receive pay for military leave. Plaintiffs were first made aware of this form in a memorandum dated March 5, 1999. At that time, Pargman, at least, told the Fire Chief that he wanted to discuss the matter with his attorney before filling out the form. The parties dispute whether Pargman consulted his attorney or whether he acted on his own volition but, in any event, Pargman later refused to fill out the form because, he said, it violated the reporting requirements under state and federal law. Pargman was subsequently giv
Plaintiffs challenged the City’s policy and the disciplinary action in state court, raising several state and federal claims. Plaintiffs named as Defendants the City and Timothy Farmer, in his official capacity as Fire Chief of the City. Defendants removed the action to this Court under
The parties filed cross-motions for summary judgment. Plaintiffs moved for partial summary judgment on Counts I, II, III, and IV. Plaintiffs seek a determination of liability under these Counts, and ask the Court to award equitable relief. Plaintiffs also moved for summary judgment on their request for equitable relief enjoining and requiring Defendants to rescind all disciplinary action taken against Pargman for his objection to the City’s policy, and to remove all documentation concerning any such discipline from his records and files. 4 Defendants moved for summary judgment on all Counts.
DISCUSSION
I.
In Count I, Plaintiffs contend that the City’s policy violates
Subject to the conditions hereinafter prescribed, any officer or employee of the state or of any political subdivision,municipal corporation, or other public agency of the state ... who shall be a member of the officers’ reserve corps, the enlisted reserve corps, the naval reserve, the marine corps reserve, or any other reserve component of the military or naval forces of the United States ... shall be entitled to leave of absence from the, public office or employment without loss of pay, seniority status, efficiency rating, vacation, sick leave, or other benefits for all the time when engaged with such organization or component in training or actual service ... but not exceeding a total of 15 days in any calendar year.
Defendants counter that
Such leave shall not be allowed unless the officer or employee (1) returns to the public position immediately on being relieved from such military or naval service and not later than the expiration of the time herein limited for such leave....
Id. (emphasis added). Defendants contend that the word “immediately” means that public employees must proceed directly from their military post to their place of employment in order to be paid for the time spent on military leave. This is true even if it means, as in this case, returning to work in the middle of the night and in mid-shift. Failure to comply with this “precondition” prevents an employee from being paid under the statute.
The parties’ dispute, thus, centers around the meaning of the state statute. The object of statutory interpretation is to determine and give effect to the legislature’s intent.
The problem with Defendants’ argument is that it ignores the portion of
Moreover, if there were any doubt, the City, in scheduling its firefighters to work in 24-hour shifts, has defined “day” to include a 24-hour period, extending from 8 a.m. one day to 8 a.m. the next. This was the result reached in
Howe v. City of St. Cloud,
Similarly, here, the City requires its firefighters to work in 24-hour shifts, and firefighters are scheduled to work seven of these 24-hour shifts every three weeks. Like in
Howe,
the City has defined the term “day” as a 24-hour day. And under
When “day” is defined in this manner, Plaintiffs’ position that they need not return to work until their next regularly scheduled shift is entirely consistent with the statute’s requirement that the employee return to work “immediately” on being relieved from service. After taking a day off for military leave, a firefighter who returns to work on his or her next shift returns to work as soon as possible after the completion of his or her military duties.
This conclusion is consistent with the intent of the legislature.
See
The intent of the military code and all acts of the state affecting the military forces is to conform to all acts and regulations of the United States affecting the same subjects....
The City’s policy, which it contends fully complies with—indeed, is mandated by—
(i) not later than the beginning of the first full regularly scheduled work period on the first full calendar day following the completion of the period of service and the expiration of eight hours after a period allowing for the safe transportation of the person from the place of that service to the person’s residence; or
(ii) as soon as possible after the expiration of the eight-hour period referred to in clause (i), if reporting within the period referred to in such clause is impossible or unreasonable through no fault of the person.
Defendants correctly point out that US-ERRA does not provide for wages or other compensation for time spent on military
The Court therefore holds that the City’s military leave policy violates
II. Uniform Services Employment and Reemployment Rights Act,
In Count II, Plaintiffs contend that the City’s military leave policy violates USERRA,
III. Fair Labor Standards Act,
In Count III, Plaintiffs maintain that the City’s policy improperly impairs or restricts their rights to overtime compensation in violation of the FLSA,
But, as the court determined in
Howe,
a firefighter is entitled to overtime under the FLSA only for hours where the firefighter “performs activities ‘which are
That said, firefighters are entitled to have the hours spent on military leave counted towards overtime, but it is under
To comply with the “without loss of pay” requirement inMinn.Stat. § 192.26 , we hold that the overtime that would have been paid under the FLSA if the firefighter had not taken military leave must be paid under the Minnesota Military Leave Act. In the present case, to avoid loss of pay from military duty, up to 15 days per year of the Howes’ military leave must be included in their total hours worked for purposes of calculating overtime. This overtime must be paid not under the FLSA, but underMinn. Stat. § 192.26 .
Id.
(emphasis added);
see also Lanehart,
Plaintiffs do not specifically allege in Count III that they are entitled to overtime compensation under
IV. Minnesota Fair Labor Standards Act,
In Count IV, Plaintiffs allege that the City’s policy impairs or restricts their rights to overtime compensation in violation of the Minnesota Fair Labor Standards Act,
V. Minnesota Whistleblower Act,
In Count V, Pargman alleges that Defendants’ act of disciplining him for failing to fill out the Military Time—Pay Request form as part of Defendants’ policy violates the Minnesota Whistleblower Act,
(a) the employee, or a person acting on behalf of an employee, in good faith, reports a violation or suspected violation of any federal or state law or rule adopted pursuant to law to an employer or to any governmental body or law enforcement official;
(b) the employee is requested by a public body or office to participate in an investigation, hearing, inquiry;
(c) the employee refuses an employer’s order to perform an action that the employee has an objective basis in fact to believe violates any state or federal law or rule or regulation adopted pursuant to law, and the employee informs the employer that the order is being refused for that reason.
In determining whether an employee has made out a claim under the whistleblower statute, Minnesota courts follow the test set forth in
McDonnell Douglas Corp. v. Green,
Pargman alleges in the Complaint that Defendants’ act of disciplining him violated all three provisions ' of MinmStat.
The Fire Chief allegedly hand-delivered a copy of the memorandum and the form to Pargman on March 8, 1999, and told him to submit the form with his payroll sheet that morning. According to Parg-man, he asked for an opportunity to consult with his attorney before filling out the form, but was refused. According to Defendants, Pargman did speak to his attorney and his attorney advised him not to fill out the form. In any event, Pargman informed the Fire Chief that he would not fill out the form and he was given an oral reprimand as a result. A letter detailing the oral reprimand reveals that the disciplinary action was taken for failing to follow a direct order of the Fire Chief. The letter is in Pargman’s personnel file.
Defendants contend that they are entitled to summary judgment on Pargman’s whistleblower claim. They allege that Pargman cannot establish any of the elements of a prima facie case, nor can he establish that Defendants’ legitimate reason for disciplining Pargman is a pretext. Pargman maintains that fact questions ex
Whether acting on his attorney’s advice or of his own volition, Pargman allegedly refused to fill out the Military Time — Pay Request form on the grounds that it violated state and federal law. In his brief to this Court, however, Pargman has only identified one statute—specifically,
This conclusion does not end the inquiry of whether Pargman has made out a claim under the whistleblower statute, contrary to Defendants’ suggestions. The relevant question, in establishing the first element of a prima facie case, is whether Pargman engaged in statutorily-protected conduct.
See Calvit,
In addition, the Court concludes that a reasonable jury could find that Pargman’s decision not to fill out the form is protected conduct under
The Court agrees with Defendants, however, that there is no fact question as to whether Pargman is entitled to the protection of subdivision 1(b). There is simply no credible evidence in the record to support Pargman’s assertion that he was “requested by a public body or office to participate in an investigation, hearing, [or] inquiry.”
Defendants also maintain that Pargman cannot establish the third element of his prima facie case, namely, that there is a causal connection between the statutorily-protected conduct and the adverse employment action. There is no merit to this argument under the subdivision 1(c) claim. Pargman alleges that he engaged in statutorily-protected conduct under subdivision 1(c) when he refused to follow the Fire Chiefs order to fill out the form. He was disciplined precisely because he refused to follow this order, and thus there is causation. Pargman, moreover, has made a pri-ma facie case of causation under the subdivision 1(a) claim. At trial, of course, Pargman will have to convince the trier of fact that his report of violations or suspected violations of the law, rather than his refusal to follow an order, caused Defendants to discipline him in order to establish a causal link under this subdivision.
Finally, Defendants contend that Parg-man cannot establish pretext. Defendants’ argument, as the Court understands it, is even assuming Pargman established a pri-ma facie case, Defendants have met their burden of presenting a legitimate reason for reprimanding Pargman, and Pargman cannot establish that this reason is a pretext for unlawful conduct. The reason Defendants offer for why Pargman was disciplined is “insubordination.” This is simply another name for refusing to follow the Fire Chiefs order to fill out the Military Time—Pay Request form, an issue this Court has already determined raises a fact
Accordingly, Defendants’ motion for summary judgment on Count V as against Plaintiff Pargman will be denied, but will be granted as against Plaintiff Boelter. Because there are fact questions on his whistleblower claim, Pargman’s motion for summary judgment for an Order requiring Defendants to rescind all disciplinary action taken against him for refusing to follow an order implementing the City’s policy will be denied.
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Upon its review of the files, motions and proceedings herein, it is hereby ORDERED that:
1. Plaintiffs’ motion for partial summary judgment on liability on Counts I and III is GRANTED;
2. Plaintiffs’ motion for partial summary judgment on Counts II and IV is DENIED;
3. Plaintiffs’ motion for partial summary judgment on their request for equitable relief enjoining and requiring Defendants to rescind all disciplinary action taken against Pargman for his objection to the City’s policy, and to remove all documentation concerning any such discipline from his records and files is DENIED;
4. Defendants’ motion for summary judgment on Counts II and IV is GRANTED, and Counts II and IV are DISMISSED;
5. Defendants’ motion for summary judgment on Counts I and III is DENIED;
6. Defendants’ motion for summary judgment on Count V as against Plaintiff Curtis Pargman is DENIED, but GRANTED as against Plaintiff Kenneth Boelter, and the claim brought by Boelter in Count Vis DISMISSED.
Notes
. At the time the parties briefed this matter, there was no formal written policy regarding military leave in place. Instead, both parties based their arguments on a series of letters sent from Fire Chief Farmer to Plaintiffs which detailed the City's position. At oral argument, the Court directed the parties to draft a formal policy regarding military leave, as both parties agreed there was no dispute as to what the policy was. The parties were unable to agree to the precise terms of the policy, however, and thus both provided their own versions for the Court. The two versions do not differ substantively, but only in minor language. The Court concludes that Defendant's version more accurately represents the parties’ and the Court's understanding of the policy, and therefore the Court will use the version provided by Defendants. It is, after all, the City's policy that is in dispute.
. Both Plaintiffs alleged in Count V of the Complaint that they were disciplined for failing to fill out the form. Defendants later clarified the record to note that only Pargman—and not Boelter— had been reprimanded. Whatever claims Boelter may have alleged in Count V are therefore dismissed pursuant to Defendants’ motion for summary judgment, and only Pargman's claim under this Count remains.
. The Court also has supplemental jurisdiction over the state law claims under
.Plaintiffs also seek damages, costs, and attorneys’ fees in this case but, they say, neither those matters nor the whistleblower claim are a part of their motion. Plaintiffs, however, have not made clear how the Court would rescind the disciplinary action taken against Pargman except under the whistleblower claim. Accordingly, the Court considers Plaintiffs' request for this relief at the same time it discusses Defendants’ motion for summary judgment on Count V.
. Plaintiffs repeatedly assert in their briefs— to their own detriment—that firefighters are entitled to overtime after 216 hours of work in a 28-day cycle. As
. Contrary to Defendants' suggestion, the Whistleblower Act specifically authorizes the Court to grant both legal and equitable relief, including the equitable relief sought by Parg-man.
In addition to any remedies otherwise provided by law, an employee injured by a violation ofsection 181.932 may bring a civil action to recover any and all damages recoverable at law, together with costs and disbursements, including reasonable attorney's fees, and may receive such injunctive and other equitable relief as determined by the court.
Id. (emphasis added). There is also no merit to the suggestion that Párgman is not entitled to the requested relief because he could have grieved the disciplinary action or sought relief from the Minnesota Court of Appeals on writ of certiorari. See Larson v. New Richland Care Center,538 N.W.2d 915 , 918-19 (Minn. Ct.App.1995) (municipal employee has the right to bring a whistleblower action in district court without seeking a writ of certiora-ri), pet. for rev. granted, (Minn. Dec. 20, 1995), pet. for rev. denied, (Minn. March 4, 1997); Manteuffel v. City of North St. Paul,538 N.W.2d 727 , 731 (Minn.Ct.App.1995) (public employees who claim to be injured by violations of the Whistleblower Act may bring a civil action in district court underMinn.Stat. § 181.935(a) ).
.
(a) ... any person whose absence from a position of employment is necessitated by reason of service in the uniformed services shall be entitled to the reemployment rights and benefits and other employment benefits of this chapter ... if—
(1) the person (or an appropriate officer of the uniformed service in which such service is performed) has given advance written or verbal notice of such service to such person's employer.