*1 sаtisfactory disbelieving Ma- he in reasons for continued to work the family busi- ness”). we do not testimony, mana’s and believe a factfinder would be that reasonable com While Mamana now contends that the IJ disputed credit the pelled record to was wrong to discount Mamana’s testimo testimony, particularly absence of ny government because oppose did not corroboration, what the or IJ called request his for asylum, this contention “proof any reliable source.” See does not accurately characterize gov (8th Nyama v. F.3d Ashcroft, 357 position ernment’s before administra .2004). Cir tive tribunal. At evidentiary hearing, lack public IJ cited Mamana’s of a counsеl for government merely stated reputation position in prominent found, that credibility is then [there is] “if opposition party to disbelieve reason his a well-founded persecution].” [of fear high-ranking government claim that a offi- (J.A. 137) added). at (emphasis The IJ governing party cial the well-entrenched credibility determination, made adverse Togo give would seek out Mamana to although the government’s attorney government’s speech par- on behalf of the perceived “general a “back bone” un- A ty. adjudicator, reasonable the ab- waveringness” answers, in Mamana’s evidence, corroborating sence of could find government never conceded the credibility just implausible, this assertion as we found testimony. of the The IJ believed firmly
it reasonable for an inIJ Rucvr-Roberti to that Mamana’s rendition of events was in implausible guerillas deem it that would credible, and this awas reasonable conclu threaten an politi- alien based “minor” in light of cal at sion the record as whole. activities. 177 F.3d 670. The We IJ here uphold also found Mamana’s therefore unbelievable as- the denial of Mamana’s hiding sertion that he went into as a result application asylum. Because Mamana alleged by government threats offi- satisfy relatively failed to lower burden cials, testimony because the impor- proof asylum claim, on his his claims for pоint internally tant was inconsistent. At withholding protection of removal and for stage, Mamana testified after his Against the Convention Torture government encounter with officials (which grounds are based on the same May run he continued to his business in support asserted his alleged refugee departing country until in September status) Gonzales, fail as well. v. Samedov (J.A. 115). Later, at he testified (8th Cir.2005); 422 Regalar that he was “in hiding” subpoenas when INS, do-Garcia were in February delivered to his wife Cir.2002). 2000 and March and said that he petition for review is denied. “didn’t work anymore” while he inwas (J.A. 119). hiding. reasonably at The IJ “did not provide
found Mamana
satisfactory question answer” to the of how (J.A.
he ran a in hiding, business while at
65), fact, and in gave Mamana inconsistent
testimony about he running whether was or in hiding May
business between ACTON; Arends; Boyd N. Chris J. Chris September Begna, 2000. See Babich; Bаch; Greg Bacon; N. Tim 304 (upholding IJ’s decision alien’s Anthony Bannister; Bazat; testimony Arnold implausible, part J. Beard; “during Blakemore; the time he claimed to be in Alan E. hiding Mark *2 Brunstrom; Britt; Mark K.P. Bruce Bullard; E. Eric T. Bullard; James COLUMBIA, MISSOURI, CITY OF Clifford; Justin M. Caszatt; Brian Defendant-Appellant. Comegys; Collins; Darrin J. Daniel 04-3985. No. Bradley; Rusty Arends; Ron W. Appeals, United States Court Kirby Crow; Cook; Keith E. Frank Eighth Circuit. Gary Drewing, II; Del Dothage; R. Duncan; Kyle Fansler; wyn Kurt Submitted: Oct. Fisher; Fansler; M. Ron Travis Feb. Filed: Floyd; Forrest; Frazi D. Brad Steven Rehearing En Banc Rehearing and Frew; Gray; er; Tra D. Andrew Scott Denied March 2006.* George Gregory; cy Gray; F. David Hartman; Hanks; D. Aaron Eric Hickam;
Hasheider; Antonio John R.
Hiley; Holz; Cameron Michael Hrdina; Hudson;
House; Greg Matt Igleheart;
Billy Hurt; Robert John Innes; Jones;
Joseph James Jennifer Jeremy
Kamp; Kandlik; E. A. James Lexow;
Kuhlmann; Carol Dennis
Long; Martin; Shawn Richard McGavock;
McCouom; Daniel J. Jan McGruder; McCrary; Brenda
B. M. Meinert; Rodger Merten W.
Matthew Morris;
smeyer; Lor Robert William Muellet; Ogden; Doug Thomas
en G. Oncken; Orth; Eric T.
las W. Michael Purves;
Pooler; H. Rich David John
erson; Rohr; Roush; Brint Dennis G.
Danny Sandker; Sapp; Jon Adam O. Smith; Smith;
Brian L. Rachel S. Sorrell; A.
Deborah L. Staf Wiliam
ford; Strawn; Jeffrey K. Daniel Stur
geon; Sturm; Christopher Michael G.
Sutton; Timothy Taylor; E. Coline
Tegerdine; Thacker; J. Eric William
Thiessen; Doug Thoma; Kevin R.
Thompson; Thompson; Brian Wade Tilman; Tobar;
K. Rolando Lisa A.
Rodd; Gary Jr.; Warren, L. Brian A.
Wasson; Whitaker; Lee Tan Ladon White;
dall Elwin David C. William Willits;
son; Tony Wright; Marc Zielinski; Wood;
Donald R. John Douglas; Poole, Mark
Richard W.
Plaintiffs-Appellees, * rehearing Judge grant petition B. en banc. Chief James Loken would *3 file did not FLSA. summary judgment.
cross-motion for motion for firefighters’ While par- summary judgment pending, agreement a settlement ties entered into longevity pay, step-up firefighters’ on the During standby pay claims. pay, changed period, interim comport with the policy hours ratio forth in the requirements set *4 judgment. for partial summary motion firefighters’ outstanding the Regarding claims, subsequently district court1 the part, in granted firefighters’ motion the Krehbiel, Louis, St. argued, Robert John ruling that Missouri, for appellant. firefighters’ reg- be included Steele, argued, Washington, Douglas L. However, the district pay. ular rate of (Thomas Woodley Deirdre A. and C. D.C. also court denied motion D.C., Washington, on the Fitzpatrick, part, ruling in that monies received
brief), for appellee. City’s program meal allowance were Finally, LOKEN, Judge, LAY and Before Chief the district court found no evidence that BENTON, Judges. Circuit City willfully violated the FLSA. I. BACKGROUND entry ruling, After of the district court’s LAY, Judge. Circuit parties stipulation filed a for dismissal in the settlement on claims addressed ninety-nine N. Acton and current Chris stipulated (the agreement. parties The further “firefighters”) and former final entered judgment should be Columbia, Mis- employed City adjudicated in the district the claims (the “City”) brought against the souri suit court’s order. failing pay- to include a series of firefighters’ regular in rate of ments court entered final The district then (the 207(e) pay, in of 29 violation U.S.C. claims, judgment the settled and each “FLSA”). Fair Labor Act or Standards prеjudice. The was dismissed with district prior grant- order referenced moved for firefighters subsequently The denying in ing part part in fire- al- partial summary judgment, specifically summary judg- fighters’ motion leging monies earned under ment. buy-back, step-up pay, meal al- lowance, standby programs should appeals The now the district court’s pay. included their The summary judgment grant fire- alleged City willfully firefighters also fighters, arguing that monies an incorrect buy-back program violated FLSA and used should not its sick leave firefighters’ regular ratio the fire- to determine when be included fighters eligible for overtime become Laughrey, K. United of Missouri. The Honorable Nanette Judge the Western District States District States, Cir.1995)) APPELLATE
II. JURISDICTION (internal omitted). citations this court argument At oral raised We first noté that an deny order jurisdiction. We hold that ing summary judgment to party cou of this a rare instance present facts case pled an granting with order summary jurisdiction we where exercise to hear judgment to the party same on a different appeal granted from an order that was claim not normally does constitute a final part part. and denied decision under 1291 because all jurisdiction ap federal courts of yet claims in the case are not resolved. See generally appeals limited to taken peal States, 229, 233, Catlin v. United 324 U.S. (1945). “final decisions the district courts.” S.Ct. 89 L.Ed. to trial court’s denial exceptions summary judgment 28 U.S.C. 1291. Certain claim exist, to one establishes fact issues judgment the final rule as set forth still remain for resolution trial. 54(b) Com Rule 28 U.S.C. modity Trading Futures Comm’n v. Procedure, Rules of un Federal Civil Morse, (8th Cir.1985) (“De der the collateral order doctrine.2 Rein *5 summary nial of ... judgment simply indi Minnesota, 847, v. 346 holdson 849 n genuine cates that fact issues exist [for of exceptions, None trial].”). denial, turn, This renders the however, applicable are facts of interlocutory, thereby entire order pre case, and our on analysis therefore turns appellate cluding review under 1291. the court’s whether district order consti R.R., Inc., See Fin. Corp. Helm v. MNVA a final of purposes tutes decision (8th Cir.2000) (“In 1079 § 1291. Id. general, summary judgment denials of are interlocutory and immediately ap thus not final, For an to be it must order “ pealable.”). litigation ‘end[ ] the and merits Here, however, nothing for the court to do but exe when district court ” granted firefighters’ motion judgment.’ cute the Id. Cun (quoting summary judgment buy- on the ningham County, v. Hamilton 527 U.S. firefighters’ back claim and denied the mo- 198, 204, 144 S.Ct. L.Ed.2d 184 tion on the meal allowance and willfulness (1999)). Moreover, a final order “ claims, genuine it noted that no issues of unequivocal ‘reflect some clear and man fact trial, regarding any material existed court ifestation of its belief firefighters’ claims. made, that the decision so far as the [trial concerned, court] the end of the Specifically, in of portion its order ” Id. (quoting summary case.’ Goodwin v. denying judgment, United the. district 54(b). may appeal entry judgment. Under federal courts of final of Fed.R.Civ.P. jurisdiction interlocutory narrow, exercise over an or- Finally, judicially-created under the injunction, der that involves the denial of an doctrine, appeals collateral order federal where the district court has certified jurisdiction courts exercise over in- controlling of law. 28 U.S.C. terlocutory involving orders "decisions that 1292(a)(1), (b). 54(b) Rule Under of conclusive, important ques- that resolve Procedure, Federal Rules of Civil federal merits, separate tions from the and that are appeal jurisdiction of courts also maintain effectively appeal unreviewable on summary judgment rulings оver not do Minnesota, judgment.” v. final Reinholdson case, dispose of an entire but where dis- (8th Cir.2003) (internal trict court nonetheless states that there is no omitted). citations just delay expressly reason for and directs legal regula- sion is on the district court’s of based Department Labor court cited analysis subsequent rulings matters as its conclusion that monies to support tions law, ex- of as the district court’s well City’s per meal diem earned; under genuine issues determination that press be included program allotment any of implicated of material fact were the court. We the three claims before no evi- district found Similarly, the recognize part of therefore the district firefighters’ conten- support dence to judgment denying summary court’s order -willfully violated tion that be, substance, grant sum sum, court made no the district FLSA. In City. judgment to the Helm summary disputes that re- any factual reference that a (stating Fin. F.3d at Corp., trial of its either quired resolution summary judgment a matter denial Indeed, foot- denials. summary judgment law, coupled voluntary with a dismissal one of the district court’s note number claims, “in remaining of all effect made that, is no expressly “[t]here *6 (1964). 308, 199 S.Ct. 13 L.Ed.2d that, making recognize when We as to whether an order is determination an order determination as whether and, far clear final is often from final rather techni practical is than instances, accepted guided we are sense, сal incon courts must balance “the finality of requirement rule under that piecemeal costs venience and of review than given “practical 1291 rather be deny [against] danger the one of hand Cohen v. technical construction.” Benefi ing justice Gillespie, on the 379 other.” 541, 546, 337 Corp., cial Indus. Loan U.S. (internal 152-53, 85 cita U.S. S.Ct. 308 (1949); 1528 93 L.Ed. see 69 S.Ct. omitted). however, ease, tions In this Ass’n, Power also v. United 635 Arendt danger piecemeal no of review there is F.2d 756 extending juris inhibit would us end, that, no To we have doubt had this outstanding firefighters’ diction. The summary filed a cross-motion for City claims were resolved before the district judgment on the meal allowance and will- Thus, adjudica court’s was order issued. claims, dispose fulness thе district court would of appeal tion this will of this litigation.4 granted have this motion.3 This conclu- grant Similarly, firefighters voluntarily 3. if the had transformed of a motion for order). summary judgment a final into dismissed their meal allowance and willful claims, ness this dismissal would have ren Although jurisdiction of in this extension unquestion dered the district court's order case resolve whether sick leave will ably Chrysler Corp. See Motors final. firefighters’ monies should be included Co., (8th F.2d Thomas Auto parties’ pay, settlement 1991) (holding appellant’s voluntary Cir. agreement ruling. effect our limits the dismissal of remainder of his claims Therefore, appeal purpose the true of this compelling reason not to eourt’s was interlocutory see order We jurisdiction over appeal simply § extend this because the district failed to ex compel facts this case pressly it granting state that was conclusion that the district court’s order summary judgment firefighters’ on the final 1291. The record shows claims, meal allowance willfulness adjudicated the district court firefight every
where indication suggests the dis meal ers’ allowance and willfulness claims trict just court intended to do this.5 A given the of a genuine dispute absence contrary would decision force and, such, material fact deny the order file a for summary judgment motion ing summary judgment on these claims surely granted possibly would ap grant summary constituted a judg pealed again, thereby once further burden This, ment to the City. coupled with the ing our system unnecessary litigation with grant district summary judg court’s judicial and wasting resources. ment to firefighters on the sick leave (8th Bosley, Barnes v. buy-back claim, renders the order final Cir.1986) (taking into consideration “the decision for purposes of 1291. Accord savings judicial considerable resources” ingly, jurisdiction we have to hear the determining when if an order is final un appeal. merits of the City’s 1291).6 der Further, preju- are not III. STANDARD OF REVIEW ruling. diced this We base conclu- grant We review district court’s sion on the failure contest summary judgment novo, applying de appellate jurisdiction issue of in their the same set forth by standards the dis brief, as well their express concession trict сourt. McLaughlin v. Esselte Pen that this jurisdiction court maintained Corp., 50 F.3d Cir. daflex City’s appeal. hear the Simply, the fire- 1995). Summary judgment “if proper fighters made informed and calculated pleadings, interrogatories, answers to appeal decision not to the district court’s file, together and admissions on with the summary denials judgment even though *7 affidavits, any, if show that there is no they recognized appeal to be within this to genuine any fact material jurisdiction. court’s This fact alleviates moving party the is entitled to a any concern that our of appellate extension judgment jurisdiction as a matter of Fed. in this law.” instance would other- 56(c). preclude wise firefighters the from R.Civ.P. The facts in case are filing an appeal under the belief that the district undisputed. review is limit- Our therefore future, City, quested to judg- determine whether the that the district court final enter buy-back include sick leave granting deny- monies in ment in-part over its order regular pay the rates' of ing part of its other for the motion ees. Then, summary judgment. parties ex- the pressly juris- appellate conceded the issue of 5. A respective Litigants district court maintains the diction in discretion their briefs. grant non-moving party summaty judgment, jurisdiction consent themselves cannot Wallace, even where the nonmovant does not file a of the courts. Orsini v. 913 F.2d summary judgment. (8th Cir.1990) ("[PJarties cross-motion for Bur cannot Dist., lington N. Co. v. R.R. Omaha Power jurisdiction subject consent to matter [] Pub. be- 1231 n. 3 extending cause consent to its 'inevitable con- jurisdiction clusion’ will eliminate civil do, however, courts, reject parties’ likely 6. We attempts a result un- federal that is First, finality. "). parties to consent to re- constitutional. law, v. Res. Human exception.” review de Madison which we ed matters for (3d Cir.2000). Stores, Inc., Inc. v. Alexander Dev. novo. Wal-Mart Alexander, FLSA, employers, including all & Under the Cir.1988). Act.8 public agencies, covered (x). 203(d), Therefore U.S.C. BUY-BACK LEAVE SICK
IV. City, municipal entity, subject sick Under requirements the FLSA. twenty- firefighters who work program, analysis, beginning our we must Before during course of work shifts four hour statutory clarify a matter of preliminary days leave. accumulate ten оf sick year one under the FLSA that has construction to use their sick leave who fail Firefighters point par- been of confusion between the ten are entitled “sell back” First, City argues buy- ties. days exchange unused sick not back monies do constitute remunera- 75% equal to lump payment for a sum Next, con- employment. tion for fire- provided the regular hourly pay, their tends sick leave monies are at least six months fighter has amassed 207(e)(2) they because excluded under contend that sick leave. for compensation “are not made as [the from the sale of all monies received employee’s] employment.” hours of Id. included their should be However, “not com- lаnguage made as rate calcu- employee’s] hours of pensation [the for it provides critical because lation is employment” posited in is but the firefighters’ from which point base a mere of the “remunera- re-articulation compensation is calculated.7 overtime employment” requirement
tion for set Act A. The Fair Labor Standards preambulary language forth in the 207(e). 207(e)(2), un- properly Section 207(e) pro of the FLSA Section derstood, separate operates not as a basis vides, that “all remunera part, in relevant exclusion, but instead clarifies the to, on behalf employment paid tion for not types that do constitute of, must be includеd in employee” employment purposes remuneration provided pay, Therefore, City's §of treat we prohibited by such one remuneration employment” “remuneration statutory exclusions listed under eight 207(e)(l)-(8). 207(e). arguments under the same 29 U.S.C. analysis. Finally, both mode statutory presumption is a “that There other, provisions modify we must nec- any form is included *8 remuneration essarily requirements express consider the rate calculation. The burden regular § regulations to of the federal employer is on the establish it when if sick question interpreting determining falls under remuneration Auth., 528, 557, employers pay requires 7. to cov- 469 U.S. 105 S.Ct. The FLSA regu- (1985). employees their response, Congress ered time onе-half L.Ed.2d In lar of for each hour worked in excess public give employ- all amended the FLSA to forty per workweek. U.S.C. 15, 1986, April comply ers to with the until 207(a)(1). § Act Act. Fair Labor Standards Amendments 99-150, 2(c), § No. 99 Stat. Pub.L. Supreme 8. In the United States Court time, the FLSA been 788. Since has constitutionally FLSA be ruled the could ex- applied gov- to the conduct of state and local regulate govern- to state and local tended ernment. ments. Garcia San Antonio Metro. Transit. years monies remuner- buy-back requisite leave constitute order to amass the six employment. ation for Then, sick month leave reserve. the fire- fighters must also accrue additional sick Employment. 1. Remuneration for year present leave in order to be § § Regulation C.F.R. 778.223 eligible Thus, for buy-back. the primary for inquiry touchstone our provides the buy-back program effect is to en- scope it addresses to courage firefighters work regu- come to 207(e)(2).9 Specifically, regulation § larly significant period over their em- paid § 778.223 addresses whether monies ployment recognize tenure. We consistent employees remaining to on call are workplace attendance to a general duty be excluded from the rate under and, therefore, of employment rule that 207(e)(2). regulation § The concludes that buy-back sick leave monies constitute re- to to paid employees moniеs remain muneration for employment.10 call, “any specific while not related to City primary argu- The sets forth three work,” hours of are nevertheless awarded to support ments its conclusion sick duty “compensation performing buy-back payments leave are not remuner- job” namely, involved in the — First, for employment. ation ar- employee’s willingness commit gues buy-back program was intended to ment to unscheduled hours if re work promote objectives two unrelated to em- quested. C.F.R. 778.223. The compensation. hand, ployee On the one regulation of the plain language makes buy-back program the sick leave in- compensation clear that all monies provide specific firefighters for either a or tended with a form general work-relat duty be disability ed should included of short-term insurance because question The critical before this disability have a policy does not buy-back court is whether sick leave mo covering employee disability illness or last- compensate firefighters nies for some less. sick ing six months or leave specific general duty employment. or buy-back program, with its ac- six-month requirement, sick crued leave was devised In qualify buy- order to employees as a mechanism for payments, firefighters back self- come regularly period against disability. work personal several insure illness or regulation buy-back cite must determine whether sick leave Department opin- 778.211 and a Labor monies constitute remuneration for so, support ion position letter to their that sick ment. If we must then decide whether buy-back included monies are nevertheless statutory their See 29 C.F.R. more or of the 778.211; 207(e)(l)-(8). Opinion exceptions Letter from J. Herbert enumerated under Cohen, Administrator, Deputy Depart- U.S. 29 U.S.C. 207. (Feb. 24, 1986). regula- ment of Labor Under 778.211, tion bo- attendance bonuses and alsoWe note that sick leave mo- employees nuses announced induce do nies not resemble steadily efficiently work more in- must be 207(e)(2). expressly excluded under See 29 *9 cluded rate 778.224(a) § (noting payments C.F.R. ex- However, wе need not address whether sick cluded buy-back monies are tantamount to an must "be 'similar' in character to se, per attendance bonus or a an- payments specifically bonus described” monies, employees (e)(2)). nounced buy-back to induce to work more Sick leave in con- steadily efficiently, require- or because these payments, trast to are awarded to employees coming consistently, ments are extraneous to 207. Under for to work First, only performed. we need we consider two factors. not for work that was never 978 rules.”); Wesley Corp., Dierlam v. lessen City argues its sick leave
Alternatively, the
(N.D.Ill.2002)
employees
discourages
F.Supp.2d.
buy-back program
as another form of
treating
(noting
require
from
that a bonus that does not
pro-
leave because the
personal
or
vacation
production goals
to
or
recipient
its
meet
for em-
money
a
incentive
gram creates
“simply contemplates
standards
quality
accrue,
use,
not
their sick
to
ployees
but
of an
re
[the
the non-occurrence
event—
leave.
work”).
cipient’s] absence from
compelling.
are not
arguments
These
However, none of these
authorities
three
buy-back program
if the sick leave
Even
In
applicability of
address the
a
provide employees with
intended to
was
stead, each confronts the issue of whether
disability insurance and
of short-term
form
employee
good
is entitled to a
for
bonus
leave,
discourage
of sick
misuse
to
returning
upon
attendance
to work under
to
plain
program
of the
reward
effect
Family
Medical Leave Act. The
a
workplace
through
attendance
attempt
language
to cite
taken out of con
non-discretionary,
lump sum
year-end,
interpreting
text from authorities
another
justifica-
payment.
City’s proffered
way
binds us in this
federal statute
undisputed
fact
change
tions do not
Mataya,
v.
case. See Arnott
plainly
rewarded
that the
Cir.1993)
(stating
124 n.
that an
a
regularly showing up for work over
for
argument
language
based
years.
pеriod of
inappli
“taken out of context”
other
Second,
City
also cites 29 C.F.R.
persuasive).
cable cases was not
To
825.125,
opinion
Department
Labor
City
extent the
uses
authorities
letter,
a decision from a federal dis-
argue
workplace
consistent
attend
District of Illi-
trict court in
Northern
“require performance
ance does not
claim that
support
its
bonuses
nois
flatly disagree. We believe
employee,” we
perfect attendance do not re-
awarded for
workplace attendance does re
consistent
employee,
quire performance
but
In the
quire performance.
modern work
contemplate the absenсe
occur-
rather
place, regular
prompt workplace
at
(“Bonuses
§ 825.215
rences. 29 C.F.R.
commodity,
is a valued
one for
tendance
safety do not re-
perfect attendance and
City
its
appropriately
which
rewards
performance by
employee
but
quire
employees.
contemplate the absence of occur-
rather
Finally,
cites the
Circuit’s
Sixth
rences.”); Opinion Letter
from Maria
City Youngstown,
in Featsent v.
decision
Administrator,
Echaveste,
Depart-
U.S.
(6th Cir.1995),
support
its
(Mar.
1994) (“Bonuses
ment
Labor
argument
that sick leave
or
premised
‘perfect
‘per-
attendance’
not
remuneration for
safety’
do
constitute
fect
are rewards not for wоrk
Featsent,
production,
In
Circuit
compliance
but
with ment.11
Sixth
agreement
11. The
also cites the Third Circuit’s deci-
Corp.,
207(e)(2).
sion in
Stone Container
Minizza
Because
“remuneration
(3d Cir.1988),
support
highly
employment”
determination is
fact-
claim that sick leave
monies do not
question
narrowly on
intensive
that focuses
employment.
constitute
remuneration
issue,
specific
program
operation However,
fundamentally
addressed
Minizza
the Third Circuit’s
decision does
Minizza
payment program.
different
The Minizza
analysis
help
our
because that case
instruct
with the issue of wheth-
was confronted
wholly distinguishable payment
considered
lump
er
to induce
sum
awarded
program.
employeеs
ratify
bargaining
a collective
*10
by
employee
monies
who
in
paid
employees
any day
ruled that
or work-
did not submit medical claims and failed to
week because such hours are hours
use accrued sick leave12 were excluded
eight
day
worked in excess of
in a
or in
under
excess of the maximum
appli-
workweek
207(e)(2)
§
payments
are
such
employee
cable to such
under subsection
[employee’s] compensa-
“unrelated
(a)
employee’s
or in
excess
normal
tion
hours
for services and
of service.”
working
hours,
hours or regular working
Featsent,
2. Exceptions. Second, payments in order for to be inquiry
The second of our part 207(e)(5), under they excluded must be buy-back pay asks whether sick leave “paid for certain hours worked the em- eight ments excluded are one of the any day in ployee or workweek because 207(e). statutory exceptions listed under such hours are hours worked excess of The City’s appeal exclusively on relies eight day or in excess of the maximum 207(e)(2), already which we have ad [required in Id. Even as- a] workweek.” Although dressed. cites no other does, suming, as the dissent that sick leave brief, court, basis for in its exclusion paid in payments recog- are sole at oral argument, first raised issue of specific days firefighter nition for the whether excludes sick leave sick,13 calling chooses to work instead buy-back payments the regular pay- there is still no basis to exclude such pay dissent contends that sick leave 207(e)(5). ments Section ments terms, 207(e)(5), by appli- its own limits its 207(e)(5). We now address this issue. cability payments made for certain 207(e)(5) provides:
Section
hours
worked
excess
compensation provided by pre-
weekly
normal
or
daily
[E]xtra
schedule. Under
mium rate
approach, buy-back
for certain hours worked
dissent’s
Featsent,
worked,
program
Firefighter
at
Under
would have
decided
but
employees
to,
accrue
a rate of one
preserve
eligibility
in order to
his
one-quarter days
per month of
supports
payments.
This further
Featsent,
ment.
at 902
n. 4.
buy-back payments
the conclusion that
days
specific
not attributable
impossible,
practical
We
it is
note
worked.
sense,
specific days
given
to determine the
*11
LOKEN,
dissenting.
Judge,
Chief
best,
for work-
are,
premium payments
at
hours.
ing normally scheduled
I
that the
I
believe
respectfully dissent.
only circuit court to consider the
207(e)(5)
only
Finally,
plainly
§
excludes
compensation
that
correctly concluded
is, payments
payments
“premium”
—that
buy-back program
paid under
sick leave
less than one
one-third
should be
such as the
of Columbia’s
rate.
See 29 C.F.R.
regular
ee’s
excluded from the FLSA’s definition
778.308(b).
creatively “com-
§
The dissent
rate.”
Featsent
v.
“regular
buy-back payments,
leave
pounds” sick
In response, the court asserts that sick buy-back payments compen- are not
sation a premium ignores at rate. This reality.
economic agreed pay the plaintiff firefighters days for ten INC., KFORCE, Plaintiff-Appellant, year. used, each If sick leave is another employee do work, presumably at a rate least SURREX SOLUTIONS equal firefighter rate of the CORPORATION, Defendant-Appellee. on sick leave. If firefighter instead works, leaving unused, his sick leave No. 05-2224. City through program pays, United States of Appeals, Court top of the regular already paid, Eighth Circuit.
premium equal to firefighter’s 75% the Thus, rate. days those Submitted: Dec. worked, the firefighter 175% his Filed: Feb. premium greater This than functionally than different
premium requires employers FLSA
I question would leave that for the district to resolve remand. order notes summary judgment judg- final denial of Ac- the facts this case.” dispute about Moreover, appeal”). for purposes ment Columbia, No. 03-4159-CV- ton v. utilized, legal analysis and ultimate (W.D.Mo. NKL, at *1 2004 WL drawn, conclusions the district court 2004). Sept.10, provide requisite its order “clear struggled to decide long have Courts unequivocal of the court’s manifestation” “final” qualify as precisely orders which intent claims the mer- dispose Gillespie Unit purposes dis- given the absence of factual 148, 152, Corp., 379 U.S. ed States Steel pute.