## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 98-2127

___________ Daniel Joseph Milner, et al., * * Plaintiffs - Appellants, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri. City of Hazelwood, * * [PUBLISHED] Defendant - Appellee. *

___________ Submitted: December 18, 1998 Filed: February 2, 1999

___________ Before WOLLMAN, BEAM, and LOKEN, Circuit Judges.

___________ PER CURIAM. The Fair Labor Standards Act (FLSA) generally requires employers to pay employees a

t overtime rates for work in excess of forty hours per workweek. See 29 U.S. C. § 207(a)(1). However, the Act contains an exemption for public employer s who emplo y police officers and firefighters for established work periods of up t o twenty- eight

days. See 29 U.S.C. § 207(k). Under the Secretary of Labor’ s implementing regulations, a work period is defined as “any established and regularly recurring period of work.” 29 C.F.R. § 553.224. Public employers who establis h twenty -eight-day work periods under § 207(k) need not pay overtime rates t o emp loyees who work 171 hours or less in a particular work period. See 29 C.F.R

.The HONORABLE LAWRENCE O. DAVIS, United States Magistrate Judge 1 for the Eastern Dis trict of Missouri, to whom the case was assigned by consent of the parties. See 28 U.S.C. § 636(c)(1). Th e district court also dismissed FLSA minimum wage and state law claim s 2 that are not at issue on this appeal. -2- §§ 553.201(a), 553.230(c). In this case, police officers employed by the City o f Hazelwood, Miss ouri, sued to recover unpaid overtime compensation allegedly owed forthe fif

teen minutes they spend each day attending mandatory roll calls at polic e headquarters. The City moved for summary judgment, submitting a September 15, 1985, InterOffice Memorandum from th e City Manager to his staff announcing the establishment of a twent y-eight-day work schedule for police officers, and affidavits from the Chief of Poli ce and the City Manager averring that the City had thereafter scheduled police depar tment

personnel on a regularly recurring twenty-eight-day basis. The distric t co urt granted summary judgment in favor of the City, concluding this evidenc e 1 satisfies the work period requirements of 29 C.F.R. § 553.224, pla intiffs failed to refute this evidence, and therefore plaintiffs’ overtime claims fail because the City is entitled to the 29 U.S.C. § 207(k) exemption as a matter of law. 2 On appeal, plaintiffs argue t here is a genuine fact dispute because the City pays them overtime on a daily basis, and because the September 1985 memorandum was not made public and is ambiguous. We agree with the district court that a city does no t forfeit its § 207(k) exemption by paying overtime more ge nerously than the Secretary’s reg ulations would require, that the exemption need not be established by publi c decl aration, and that the City’s September 1985 memorandum unambiguousl y es tablishedthe exemption by declaring, “In compliance with FLSA . . . [e]ffectiv e September 15 . . . [t]he police department will be on a 28 day work schedule.”-3-

Plaintiffs further arg ue the FLSA entitles them to compensation at their regular rates whenever unpaid time attending mandatory roll calls increased their total hours in a twenty-eight-day work period to more than 160 hours but less than the 17 1 maximum hours permitted in the § 207(k) regulations. As the district court noted, this clai m was not pleaded and was untimely raised in response to the City’s motion fo r summary judgment. In any event, it is without merit. See Monahan v. County o f Chesterfield , 95 F.3d 1263 (4 Cir. 1996). th
The judgment of the district court is affirmed. We deny the City’s motions t o st rike appellants’ brief and portions of the joint appendix and to dismiss the appeal. A true copy.
Attest: CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.