United States Court of Appeals

Fifth Circuit



## FILED

October 18, 2004

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 04-50103

_____________________

DAVID A. CLEVELAND; MARK S. VOJVODICH;

ANDREW W. ASTON; BRIAN BENAVIDES,

Plaintiffs - Appellants,

versus

CITY OF ELMENDORF, TEXAS,

Defendant - Appellee.

__________________________________________________________________

Appeal from the United States District Court

for the Western District of Texas

_________________________________________________________________

Before GARWOOD, JOLLY and BARKSDALE, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Four police offi cers, formerly employed by the City of

Elmendorf, contend that they are owed overtime pay under the Fair

Labor Standards Act (“FLSA”), 29 U.S.C. § 201, e t seq

. The City

asserts an exemption from the overtime provisions of t he FLSA

because it employs less than five police employees during any given

workweek. 29 U.S.C. § 213(b)(20). The City pays three officers (a

police chief and two part-time officers), but the remainder of the

police force is comprised of officers commonly referred to as “nonpaid regulars”. Whether the four plaintiffs, who were paid

officers, are owed overtime depends on whether the City’s non-paid

regulars are “employees” or “volunteers” under the FLSA. We hold1 The exact number of individuals who performed law enforcement

services for the City over the relevant time period is unclear from

the record. Determination of the precise number of individuals is

not necessar y for this decision because at least two individuals

s erved as non-paid regulars with the department during any given

workweek.

2 A law enforcement of ficer in the State of Texas must be

licensed by the Texas Commission on Law Enforcement Officer

Standards and Education (“TCLEOSE”) in order to be a police

officer. To maintain his license, an officer must either (1) have

his police commission maintained by a law enforcement agency or (2)

continue with law enforcement educatio n classes. S ee T EX

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. § 2.12. In short, working for the City as a

“volunteer” meant that such individual maintained his status as a

peace off icer under the laws of Texas. The record does not

indicate that any cost to the City was implicated for maintenance

of the commissions.

2 that the non-paid regulars are volunteers, not employees, and thus

affirm the judgment of the district court. The City of Elmendorf

is exempt from the overtime pay requirements under 29 U.S.C. §

213(b)(20).

I

The City of Elmendorf, Texas is a small community with a

population of approximately 664. Approximately thirty individuals 1

worked for the police department for varying amounts of time from

2000 to 2002, but there were never more than three paid officers at

any given time working for the police department -- the Chief of

Police and two part-time officers. The non-paid regulars who

performed police services for the City were not paid at any time by

the City. The City did, however, maintain the police commissions

of many of the non-paid regulars. 23 The original complaint alleged a variety of claims including

violations of the Texas Whistleblower Act, causes of action under

Sabine Pilot Serv., Inc. v. Hauck

, 687 S.W.2d 733 (Tex. 1985),

failure to pay overtime in compliance with the FLSA, and

retaliation under the FLSA. They also sought liquidated damages

under the FLSA. The only claim on appeal is the district court’s

dismissal of the overtime compensation claims.

3 The entire police department, including non-paid regulars,

resigned in early 2002. Plaintiffs-appellants Cleveland,

Vojvodich, Aston, and Benavides (“Officers”) contend that they were

constructive ly discharged in 2002 because the City’s actions --

a lleged wage and hour violations coupled with harassing and

retaliatory behavior of the City Administrator and other City

Council members

-- created such an intolerable situation that they

were forced to resign. These allegations are not relevant to this

proceeding.

In April 2002, the Officers, who all had held paid positions

as either Chief of Police or part-time officers with the

department, filed a complaint claiming that the City willfully and

intentionally violated the FLSA by denying them overtime wages that

they rightfully earned. 3 The non-paid regulars are not parties to

this action. The City of Elmendorf asserted an exemption from the

FLSA’s maximum hour requirement under 29 U.S.C. § 213(b)(20). This

provision provides that maximum hour requirements shall not apply

to

any employee of a public ag ency who in any

workweek is employed in fire protection

activities or any employee of a public agency

who in any workweek is employed in law

enforcement activities (including security4 personnel in correctional institutions), if

the public agency employs during the workweek

less than 5 e mployees in fire protection or

law enforcement activities, as the case may

be.

29 U.S.C. § 213(b)(20). The City argued that it employed only

three officers; the non-paid regulars were volunteers.

The Officers filed a Motion for Partial Summary Judgment on

the issue of the City’s coverage under the FLSA. The City

responded with a Cross-Motion for Summary Judgment. The district

court denied the Officers’ Motion and granted the City’s Motion for

Summary Judgment. See Cleveland v. City of Elmendorf , No. SA-02-

CA-0395, 2004 WL 305609 (W.D. Tex. Jan. 2 3, 2004). The district

court, holding that the non-paid regulars were volunteers,

dismissed the Officers’ FLSA claims with prejudice becaus e the

City, with less than five policemen, is exempt from the FLSA. The

Officers filed a timely notice of appeal.

II

A

We review a district court’s order granting summary judgment

de novo

, applying the same standard as the district court. M anning

v

. Chevron Chem. Co.

, 332 F.3d 874, 877 (5th Cir. 2003), cert

.

denied

, 123 S.Ct. 1060 (2004). Summary judgment is appropriate 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 a nd that the5

moving party is entitled to a judgment as a matter of law

. F ED

. R.

C IV

. P. 56(c); Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986).

Under the FLSA, employers must pay overtime compensation to

covered employees who work more than forty hours a week. 29 U.S.C.

§ 207(a)(1). Although the reach of the FLSA is meant to be broad,

its application is not unlimited. S ee Rutherford Food Corp. v.

McComb , 331 U.S. 722, 728 (1947). Congress has outlined specific

e xemptions to the FLSA’s coverage. One such exemption excludes

volunteers from employee status under the FLSA:

The term ‘employee’ does not include any

individual who volunteers to perform services

for a public age ncy which is a State, a

political subdivision of a State, or an

interstate governmental agency, if --

(I) the individual receives no comp ensation

or is paid expenses, reasonable benefits,

or a nominal fee to perform the services

for which the individual volunteered; and

(ii) such se rvices are not the same type of

services which the individual is employed

to perform for such public agency.

29 U.S.C. § 203(e)(4)(A). The FLSA does not define “volunteer”,

but the Secretary of Labor has issued a regulation defining

“volunteer”:

An individual who performs hours of service

for a public agency for civic, charitable, or

humanitarian reasons, without promise,

expectation or receipt of compensation for

services rendered, is considered to be a

volunteer during such hours.

29 C.F.R. § 553.101(a). The regulations provide examples of

services which might be performed on a volunteer basis when so

motivated. S ee 29 C.F.R. § 553.104(b). This list includes6

auxiliary police, b ut the question of “volunteer” status still

remains because auxiliary police are volunteers only “when so

motivated”. Id

.

As we have ea rlier noted, Congress further exempts from the

FLSA public agencies, and employees of public agencies, engaged in

fire protection or law enforcement activities if the agency employs

less than five employees during any given workweek. 29 U.S.C. §

213(b)(20). An employer claiming an exemption bears the burden of

proving its exempt status, and exemptions are t o be narrowly

construed against the employer. P aul v. Petroleum Equip. Tools

Co.

, 708 F.2d 168, 170 (5th Cir. 1983); see also B rennan v.

Greene’s Propane Gas Serv., Inc.

, 479 F.2d 1027, 1032 (5th Cir.

1973).

B

(1)

After referencing this groundwork, we now turn to examine more

closely the regulation, and the scant case authority, dealing with

the questio n before us: whether the non-paid regulars are

“employees” or “volunteers” under the FLSA. Whether an individual

is an employee or a volunteer is a question of law for the court to

determine. C astillo v. Givens

, 704 F.2d 181,185 (5th Cir.), cert.

denied , 464 U.S. 850 (1983). The parties do not dispute that the

regulation defining “volunteer” is a valid and enforceable

regulation.7

Certainly, the law requires more than simply labeling workers

as volunteers to qualify for volunteer status under the FLSA. The

regulatory definition of “volunteer” has two parts: (1) a civic,

charitable, or humanitarian reason for performing hours of service

for a public agency, and (2) an absence of a promise, expectation

or receipt of compensation for the performance of those services.

See 29 C.F.R. § 55 3.101(a); s ee also Krause v. Cherry Hill Fire

Dist. 13

, 969 F.Supp. 270, 276 (D.N.J. 1997). This definition

should be i nterpreted in the light of the Supreme Court’s

definition of volunteer as “an individual who, without promise or

expectation of compensation, but solely for his personal purpose or

pleasure, worked in activities carried on by other persons either

for their pleasure or profit.” T ony & Susan Alamo Found. v. Sec’y

of Labor

, 471 U.S. 290, 295 (1985) (int ernal citations omitted).

Because this definition by the Supreme Court preceded the

regulation’s pr omulgation, it is useful in understanding the

intended scope of the regulation.

Neither party argues that th e non-paid regulars received or

expected to receive any compensat ion for the services that they4 An individual may receive reimbursement for expenses,

r easonable benefits, and nominal fees without compromising his

status as a volunteer receiving no compensation. See 29 C.F.R. §

552.104(a). The parties do not argue that the City’s maintenance

of officers’ commissions rises to the level of compensation, but

instead the Officers argue that receipt of this “reasonable

benefit” motivated non-paid regulars to perf orm services for the

City’s police department.

8 p erformed. 4 The parties dispute the interpretation of the

motivation requirement of 29 C.F.R. § 553.101(a).

The Officers argue that the regulation by its language

requires that volunteers be exclusively motivated by civic,

charitable, or humanitarian purposes. In support of their narrow

reading of the regulation, the Offi cers correctly note that the

Supreme Court has directed that exemptions from the FLSA are to be

construed narrowly and in favor of employees. S ee Tony & Sus a n

Alamo Found.

, 471 U.S. at 295-96. The Officers draw a parallel

between the facts of this case and the facts of R odriguez v.

Township of Holiday Lakes

, 866 F.Supp. 1012 (S.D. Tex. 1994). The

court in Rodriguez held that a non-paid officer who had an explicit

agreement with the Township allowing him to work as a police

officer in order to receive additional paid employment as a road

construction flagman was a n employee. I d

. “ In this case, it is

undisputed that Rodriguez did not act out of [a civic, charitable,

or humanitarian motivation] but was guided solely by the selfinterested, though peculiar, intention of obtaining employment in

Harris County.” I d

. at 1019. Non-paid regulars, the Officers9

argue, worked for the City for selfish and justifiable reasons: to

maintain their police commissions.

The City, on the other hand, reads the regulation to require

that an individual be motivated in part by civic, charitable or

humanitarian reasons to be considered a volunteer under the FLSA.

The City relies on the interpretation of the regulation advanced by

the court in Todaro v . Township of Union , 40 F.Supp.2d 226, 230

(D.N.J. 1999) (“The regulatory definition does not require that the

indiv idual be exclusively, or even predominantly, motivated by

‘civic, charitable, or humanitarian reasons’; therefore, the Court

understands this phrase to be modified by an implied ‘at least in

part’.”). In T odaro

, the court held that officers who continued to

perform unpaid services after the police chief removed their

eligibility to accept jobs with private entities that required

concurrent police service were volunteers, not employees, under the

FLSA. Id . at 231; see also Benshoff v. City of Virginia Beach , 9

F.Supp.2d 610, 623 (E.D. Va. 1998) (holding that firefighters

primarily, but not exclusively, motivated by civic, charitable and

humanitarian reasons to serve uncompensated on rescue squads were

volunteers). The City argues here, similarly, that motivations

neither of maintenance of their commissions n or of gaining

experience are of signifi cant consequence in determining their

volunteer status; that in the common-sense meaning of the word, the

non-paid regulars were “volunteers”.5 There is a dearth of case law on the issue of whether nonpaid law enforcement officers constitute employees under the FLSA.

Rodriguez and Todaro represent the only reported cases on this

issue.

10 The cases relied on by the parties are not, in fact,

inapposite. 5 Both note that the definition of volunteer should be

applied in a common-sense manner, which takes into account the

totality of the circumstances surrounding the relationship between

the individual providing services and the entity for which the

services are provided. S ee Todaro

, 40 F.Supp.2d at 230; Rodriguez

,

866 F.Supp. at 1019. The factual differences in these two cases

account for their different results -- in Rodriguez , the non-paid

officer concurrently received other paid work as a direct result of

an explicit agreement with the police force, whereas in Todaro the

non-paid officers continued working for the police force with only

a hope that their work might result in future paid positions. On

the facts alone, the case at hand more closely resembles Todaro

because the non-paid regulars wer e not direct beneficiaries of a

tangible benefit in any respect other than that working for the

City allowed them to ret ain their commissions as peace officers

under the laws of Texas.

(2)

We now turn to synthesize and to apply the statute, the

regulations, and the case law to the case before us. As we have

noted, the determination of whether an individual is an employee or

a volunteer under the FLSA is a question of law. C astillo

, 7046 We re serve the question of whether an individual motivated

by personal purpose, rather than civic, charitable, or humanitarian

purposes is a “volunteer”, as suggested by the Supreme Court. T ony

& Susan Alamo Found. , 471 U.S. at 295.

11 F.2d at 185. Consequently, we do not indulge in an examination of

the personal motivations behind the provision of services by each

individual non-paid regular. We look at the objective facts

surrounding t he services performed to determine whether the

totality of the circumstances supports a holding that, under the

statute and under the regulat ions, the non-paid regulars are

v olunteers. This totality of the circumstances inquiry is

supported by the Supreme Court’s definition of volunteer in Tony &

Susan Alamo Foundation

, 471 U.S. at 295. The Supreme Court

determined whether non-paid regulars were volunteers by using a

common-sense anal ysis, and there is no indication that the

Department of Labor sought to reject such a notion when refining

the definition in 28 C.F.R. §553.101(a). 6

C ongress did not intend the FLSA to discourage or impede

volunteer activities undertaken for civic, charitable, or

humanitarian purposes. 29 C.F.R. § 553.101(b). We think that a

common-sense approach, supporte d by the statute, the regulations

and their intended purpose, suggests that anyone who performs

public services without the expectation of compensation, and with

no tangible b enefits for himself, is volunteering for civic,

charita ble and/or humanitarian reasons. Such an inference would

seem to be especially appropriate when the services performed are7 The pa rties note that in addition to employment, continuing

law enforcement classes may also qualify as a designated capacity

for licensing purposes.

12 related to law enforcement or fire protection activities. Any

individual willing to undertake the dangerous jobs of a police

officer or firefighter must possess some altruistic sense of civic

responsibility. S ee

, e.g.

, Krause

, 969 F.Supp. at 276 (noting the

same for firefighters).

We now come to the final question: whether the fact that by

volunteering for the City the non-paid regulars were allowed to

maintain their commissions is a tangible benefit sufficient, under

the totality of the c ircumstances, to indicate that the non-paid

regulars were employees, not volunteers, under the FLSA. We think

that it is not. Let us look again at what is implicated in

“maintaining” one’s commission.

In order to be a peace officer in the State of Texas, an

individual must be both licensed by the TCLEOSE and be utilized in

a capacity that is designated by Texas statute. S ee T EX

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. § 2.12. One such capacity is as a police officer of an

incorporated city. 7 The only benefit that accrued to the non-paid

regulars from the provision of law enforcement services to the City

is that the City lists them as being commissioned when reporting to

the TCLEOSE. This allows the non-paid regulars to both maintain

and keep active their licenses, and to perform law enforcement

services as police officers. In short, any individual wishing to8 The Officers argue that the structure of the relationship

between the non-paid regulars and the City of Elmendorf indicates

an employment relationship. Such indicia of employment include

formal application procedures, background checks, and required

compliance with City procedures with the penalty of termination for

noncompliance. While such factors may point to an employment

relationship under other circumstances, see

, e.g.

, Rodriguez , 866

F.Supp. at 1020, the Officers’ argument is not persuasive in the

case at hand. The regulation requires that an individual be

un compensated and properly motivated. The non-paid regulars are

both uncompensated and properly motivated, and therefore, we need

not inquire into the details of the other aspects of the

relationship.

13 act as a police off icer must be “commissioned” by the city for

which he serves in order legally to provide law enforcement

services. This formality, although understandably required by the

law, is not a tangible bene fit given to the individual that is

sufficient to render these non-paid reg ulars employees under the

F LSA. 8 In essence, the non-paid regulars receive no benefit from

the City other than the ability to volunteer their services in

compliance with Texas law.

III

We hold as a matter of law that, under the totality of the

circumstances, this benefit provided to volunteer police officers

is not sufficient to render these persons employees under the FLSA.

For the reasons we have detailed above, the City of Elmendorf, in

this case, is exempt from the overtime provisions of the FLSA. The

judgment of the district court is

AFFIRMED.