The opinion of the court was delivered by: Susan Webber Wright United States District Judge
Memorandum Opinion and Order
This is an action for declaratory judgment and for compensation and other relief under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. ("FLSA"). Plaintiff also asserts a state law claim of breach of contract. Pending before the Court is defendant's motion for summary judgment, plaintiff's response, and defendant's reply. After careful consideration of the motion, response, reply, briefs in support, affidavits, exhibits, and statements of facts, the Court finds the motion should be granted.
Defendant City of Gould ("the City") hired plaintiff Jamar Bennett as its full-time Chief of Police in December 2004. Prior to that, he had been working as a patrolman for the City. Bennett testified that although the City told him he was a salaried employee, he got paid by the hour.*fn1 Bennett alleges the City required him to work overtime but only paid him based upon a 40-hour week schedule. Bennett resigned in May 2006. He contends the City violated the wage and hour provisions of the FLSA by failing to pay him overtime.*fn2 He alleges the City retaliated against him for demanding that he be paid in accordance with the FLSA and for arresting the mayor. He further claims the City breached a contract to pay him overtime.
In its motion for summary judgment, the City asserts that Bennett was exempt from the FLSA overtime provision because he was an executive employee and because he was a member of the mayor's personal staff. The City denies retaliating against Bennett and asserts there was no contract between the parties to pay overtime.
A court shall render summary judgment upon a showing that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The rule provides that "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1985). The substantive law identifies which facts are material. Id. at 248. A dispute over a material fact is genuine when the evidence is such that a reasonable jury could find for the non-movant. Id. The moving party bears the initial burden of showing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). Once the moving party has met this burden, the non-moving party cannot simply rest on mere denials or allegations in the pleadings; rather, the non-movant "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Celotex, supra, at 324. "Although we view the facts in a light most favorable to the non-moving party, in order to defeat a motion for summary judgment, the non-movant cannot simply create a factual dispute; rather, there must be a genuine dispute over those facts that could actually affect the outcome of the lawsuit." Webb v. Lawrence County, 144 F.3d 1131, 1135 (8th Cir. 1998). A party cannot avoid summary judgment by contradicting his own earlier testimony. Prosser v. Ross, 70 F.3d 1005, 1008 (8th Cir. 1995).
The FLSA generally requires employers to pay their employees at least one and one-half times their regular wage rate for hours worked in excess of forty in a given week. 29 U.S.C. § 207(a)(1). Section 213(a)(1) provides, however, that the provisions of § 207 shall not apply with respect to "any employee employed in a bona fide executive, administrative, or professional capacity . . ." This is an affirmative defense on which an employer has the burden of proof. Fife v. Harmon, 171 F.3d 1173, 1174 (8th Cir.1999).
The FLSA's definition of a covered employee excepts the personal staff of an elected official. See 29 U.S.C. § 203(e)(2)(C)(i) and (ii)(II)(2004). The City also claims Bennett is an exempt employee because he is a member of the Mayor's personal staff.
1. Executive Employee Exemption
Exemptions to the FLSA overtime requirements are "narrowly construed in order to further Congress' goal of providing broad federal employment protection. The burden is on the employer to prove that [an] exemption applies by demonstrat[ing] that their employees fit plainly and unmistakably within the exemption's terms and spirit." Spinden v. GS Roofing Products Co., 94 F.3d 421, 426 (8th Cir. 1996), cert. denied 520 U.S. 1120 (1997) (internal quotations and citations omitted). To determine whether an employee is an exempt "executive" under the FLSA, a court must apply Department of Labor regulations. Fife v. Bosley, 100 F.3d 87, 89 (8th Cir. 1996).
Under the applicable regulations, an executive employee is one who is:
(1) Compensated on a salary basis at a rate of not less than ...