United States District Court
Central Division
Keith Todd,
Plaintiff
v.
Lexington Fayette Urban County Government,
Defendant
Civil Action No. 5:08-295-KKC
2009 U.S. Dist. Lexis 115183
December 10, 2009, Decided
December 10, 2009, Filed
Karen K. Caldwell, United States District Judge.
This matter is
before the Court on cross Motions for Summary Judgment filed by Plaintiff Keith
Todd (“Todd”) and the Lexington Fayette Urban County Government (“LFUCG”).
(Rec. 16, 19) For the reasons set forth below, the Court will GRANT Defendant
LFUCG’s Motion for Summary Judgment and DENY Plaintiff Todd’s Motion for
Partial Summary Judgment.
Todd is an
employee of the LFUCG and works as a police officer for its Division of Police
(“the police department”). (Rec. 33, Attach. 1, Deposition of Keith Todd, p.
3). On March 1, 2006, while Todd was off-duty and at home, he consumed alcohol
and an unknown quantity of Ambien sleeping pills and blacked out. (Id. at 5).
Sometime thereafter, Todd’s wife came home, discovered his condition and called
911. (Id. at 5-6). The LFUCG police department responded and an ambulance
transported Todd to the University of Kentucky Hospital where he stayed for
five days. (Id.). As a result of the combined effects of the alcohol and
sleeping pills, Todd has no recollection of the events leading up to his
hospitalization. (Id.).
While
hospitalized, Todd met with Police Chaplain Welch to discuss, among other
things, his need for time off to receive alcohol treatment. (Id.) After his
discharge from the hospital, Todd met with his supervisors and requested time
off to attend a private alcohol treatment program. (Id. at 7). This request was
granted and Todd enrolled a treatment program at the Ridge Behavioral Systems
facility in Lexington, Kentucky. (Id. at 9). He successfully completed the
sixteen day treatment program on March 30, 2006 and was “released to return to
work with no restrictions.” (Rec. 18, Attach. 2). During the interim, Todd was
removed from his duties as a patrol officer and was reassigned to the Bureau of
Administrative Services. (Rec. 33, Attach. 1, Deposition of Keith Todd, p. 10).
As a result of
the hospitalization, LFUCG required Todd to undergo a “fit for duty” evaluation
which was conducted by Dr. Robert Elliott, a psychiatrist. (Id. at 11-12). Upon
completing the evaluation, Dr. Elliott determined that Todd was fit to return
to full time duty without restrictions subject to the following conditions: (1)
that Todd attend three Alcoholics Anonymous meetings (“AA meetings”) per week
and provide evidence of his attendance every month by having a sponsor sign a
monthly report; (2) that Todd should submit to random urine tests for drugs and
alcohol twice per month for the first three months upon returning to full time
duty and monthly tests thereafter if he was doing well; (3) that Todd should
abstain from consuming any alcohol including over the counter medications
containing alcohol; (4) that Todd was to continue being monitored by a board
certified psychiatrist; and (5) that Todd should consult with his physician and
psychiatrist about getting off the prescription drugs that he was taking. (Rec.
18, Attach. 1, p. 6-7).
After the “fit
for duty” evaluation was complete, Todd met with his supervisors and
representatives from LFUCG’s Human Resources Office to discuss Dr. Elliott’s
findings and his future with the police department. (Rec. 33, Attach. 1,
Deposition of Keith Todd, p. 20-21). During the meeting, Michael Allen, the
Director of Human Resources discussed each of Dr. Elliott’s recommendations
with Todd and asked whether he agreed to abide by them. (Rec. 18, Attach. 5,
Letter from Kevin Sutton). Todd agreed to follow Dr. Elliott’s recommendations
and understood that “his continued employment as an officer with the…[LFUCG]
Division of Police…[was] contingent upon the adherence to these recommendations
for the duration of his career with this government.” (Rec. 18, Attach. 4,
LFUCG letter). Todd then returned to his full time duties with the police department.
1 (Id.). However, it was understood that “any violation of these [Dr.
Elliott’s] recommendations would result in his termination through the Alcohol
and Drug Policy.” 2 (Rec. 17, Deposition of Ronnie Bastin, Ex. 1, p. 14); (Rec.
33, Attach. 1, Deposition of Keith Todd, p. 22-23).
Although the
record is not entirely clear, it appears that Todd was required to comply with
the majority of Dr. Elliott’s recommendations outside of his normal forty hour
work week and at his own expense. Police Chief Bastin testified that Todd was
not permitted to attend the required AA meetings during his regular working
hours. (Rec. 17, Deposition of Ronnie Bastin, p. 6). However, he testified that
Todd probably would have been permitted to attend the required psychiatric
appointments during regular working hours. (Id. at 7). Todd also appears to
have borne the costs associated with his psychiatric evaluations. (Rec. 33,
Attach. 1, Deposition of Keith Todd, p. 33-34).
The record
indicates that Todd has completely complied with Dr. Elliott’s recommendations
and has remained sober since his hospitalization. (Id. at 23, 40). However, for
reasons unrelated to this action, Todd requested that he no longer be required
to comply with certain of the recommendations and his request was granted. 3
(Id. at 25-31). Todd now seeks compensation for the time that he spent
attending and traveling to and from AA meetings and psychiatric examinations.
He argues that because the LFUCG required him to comply with Dr. Elliott’s
recommendations, his compliance must be considered “work” under the Fair Labor
Standards Act, 29 U.S.C. §§ 201 et seq., and Kentucky law and that he is
entitled to compensation for it. LFUCG argues that these activities are not
“work” under the FLSA because they merely satisfied a precondition of Todd’s
employment, namely that he maintain his fitness for duty.
Under Federal
Rule of Civil Procedure 56, summary judgment is appropriate where “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 and that the moving party is entitled to judgment as a matter
of law.” FED. R. CIV. P. 56(c).
In this case,
the parties do not dispute the factual issues supporting Todd’s claim for
compensation. They do however dispute whether Todd’s attendance at psychiatric
evaluations and AA sessions qualifies as “work” under the FLSA and Kentucky
law. Because these are legal determinations that must be decided by the Court,
summary judgment is appropriate. See Dade County v. Alvarez, 124 F. 3d 1380,
1383 (11th Cir. 1997); Chao v. Tradesmen Int’l, 310 F.3d 904, 907 (6th Cir.
2002)(“the issue of whether a given set of facts constitutes “work” under the
FLSA is a question of law)(citing Birdwell v. City of Gadsden, Ala., 970 F.2d
802, 807 (11th Cir. 1992)).
Todd argues
that the FLSA and Kentucky law require LFUCG to compensate him for time spent
outside his normal working hours attending AA meetings and psychiatric
evaluations. He claims that they were required as a condition of his
employment.
Section 207 of
the FLSA states that:
Except as otherwise provided in this section, no employer shall employ any of his employees…for a work week longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.
29 U.S.C. §
207(a)(1). The FLSA defines the term “employ” to include “to suffer or permit
to work” but does not define what “work” is. 29 U.S.C. § 203(g).
The Supreme
Court initially interpreted the FLSA in Tennessee Coal, Iron & Railroad Co.
v. Muscoda Local No. 123, and explained that its provisions were “necessarily
indicative of a Congressional intention to guarantee either regular or overtime
compensation for all actual work or employment.” Tennessee Coal, Iron &
R.R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 597, 88 L. Ed. 949, 64 S. Ct
698 (1944). The Court defined “work” to mean “physical or mental exertion
(whether burdensome or not) controlled or required by the employer and pursued
necessarily and primarily for the benefit of the employer and his business.” Muscoda,
321 U.S. at 598. The Supreme Court has since indicated that even work performed
while off duty can qualify as work and may entitle an employee to compensation
under the FLSA. See Steiner v. Mitchell, 350 U.S. 247, 256, 100 L. Ed. 267, 76
S. Ct. 330 (1944)(holding that employees must be compensated for activities
performed either before or after the regular work shift if those activities are
an integral and indispensable part of the principal activities for which
covered employees are employed); see Brock v. City of Cincinnati, 236 F.3d 793,
801 (6th Cir. 2001).
In Chao v.
Tradesmen International, Inc., the Sixth Circuit summarized an employer’s
duties under the FLSA and clarified that “the Portal to Portal Act, which
amends the FLSA, modified this judicial construction of hours worked to exclude
from compensation activities that are ‘preliminary to or postliminary to said
principal activity or activities.’“ Chao v. Tradesmen Int’l, Inc., 310 F.3d
904, 907 (6th Cir. 2002)(citing 29 U.S.C. § 254(a)(2); Aiken v. City of
Memphis, 190 F.3d 753, 758 (6th Cir. 1999)).
The state
statutes at issue in this case are found in Kentucky Revised Statutes (“KRS”)
Chapter 337, which is Kentucky’s analogue to the FLSA. Specifically, KRS
section 337.285 provides that:
No employer shall employ any of his employees for a work week longer than forty (40) hours, unless such employee receives compensation for his employment in excess of forty (40) hours in a work week at a rate of not less than one and one-half (1-1/2) times the hourly rate at which he is employed.
K.R.S. §
337.285(1). Neither party has presented any Kentucky cases applying this
statute to the present issue - whether an employee is entitled to compensation
for off-duty attendance at AA meetings or psychiatric evaluations. In the
absence of such authority, Kentucky courts have looked to federal cases
interpreting the FLSA for guidance. See, e.g., City of Louisville, Div. of Fire
v. Fire Serv. Managers Ass’n, 212 S.W.3d 89, 95 (Ky. 2006)(“In the absence of
any Kentucky cases on point, we next look to federal cases interpreting the
FLSA.”). Accordingly, the Court will apply federal law principals to both the
state and federal law claims.
The United
States Court of Appeals for the Sixth Circuit has adopted a three-step approach
to aid courts in determining whether an activity constitutes “work” for
purposes of the FLSA. 4 Thus, to determine whether Todd’s attendance at AA
meetings and psychiatric evaluations constitutes “work” under the FLSA, we must
consider whether: (1) LFUCG required these activities; (2) whether they were
necessarily and primarily for the benefit of LFUCG; and (3) whether they were
an indispensable part of Todd’s primary employment activities. See Brock, 236
F.3d at 801-04.
LFUCG claims
that attending these sessions was not a term or condition of Todd’s employment,
but was necessary for him to remain fit for duty which is a pre-condition and
continuing condition of his employment. In support of its position, LFUCG draws
the Court’s attention to Dade County v. Alvarez, in which the Eleventh Circuit
determined that off-duty physical fitness training by police officers was not
compensable “work” under the FLSA. Dade County v. Alvarez, 124 F.3d 1380 (11th
Cir. 1997). However, the facts of Alvarez are distinguishable from this case.
In Alvarez, the Eleventh Circuit emphasized that while the officers were
instructed to do whatever was necessary to maintain their physical fitness
levels, they were not directed to undertake any specific off-duty work out
routines or training. Id. at 1383. They were simply required to remain in good
enough shape to perform their job functions and pass a physical fitness exam.
Id. In remaining physically fit, they had complete discretion in deciding on
the method, location and amount of off-duty training necessary. 5 Id. In
addition, it is significant for purposes of this case that in Alvarez there was
no suggestion that the police officers’ employment would have been adversely
affected if they failed to engage in off-duty work outs as long as they
maintained an adequate level of physical fitness. Id. at 1385.
LFUCG claims
that as in Alvarez, Todd’s condition of continuing employment was not that he
attend the AA and psychiatric sessions, but that he remain fit for duty. 6 This
assertion is not supported by the evidence in the record. While Todd was
permitted to select a psychiatrist and choose which AA meetings to attend,
unlike Alvarez, he was required to attend a specific number of counseling and
AA sessions. Todd was not permitted to exercise any significant discretion in
maintaining his sobriety. In addition, he was required to provide documentation
to prove his attendance at the AA meetings and psychiatric evaluations.
Finally, and most importantly, unlike Alvarez, there is clear evidence in the
record that Todd’s employment would have been adversely affected if he failed
to attend any of the required sessions. In fact, Leslie Jarvis of the Division
of Human Resources wrote a letter to then Chief of Police Anthany Beatty
indicating that Todd’s continued employment was contingent on adhering to the
recommendations for the remainder of his career. 7
In this case,
it was not enough for Todd to maintain his sobriety and thereby remain fit for
duty. 8 Todd’s failure to attend any of these sessions would have resulted in
some form of disciplinary action and may have resulted in his termination.
Consequently, Todd’s attendance at the sessions was clearly required by LFUCG.
B. Whether Todd’s attendance at AA meetings and psychiatric evaluations was necessarily and primarily for the benefit of LFUCG?
LFUCG argues
that these sessions were not primarily for its benefit because Todd
acknowledges that treatment has improved his life by allowing him to achieve
and maintain his sobriety. In addition, LFUCG relies on statements by Police
Chief Bastin that LFUCG’s goal was to allow Todd to get things straightened up,
not only so that he could be a successful employee but also for the sake of his
home life. Finally, LFUCG claims that because Todd was able to select his own
psychiatrist and the specific AA meetings that best addressed his
circumstances, the sessions were primarily for his benefit.
Todd counters
that the sessions were primarily for LFUCG’s benefit because his attendance was
required and ensured his continued employment and contributions to the police
department. Todd also draws the Court’s attention to the Seventh Circuit’s
decision in Sehie v. City of Aurora, which he argues supports a determination
that attendance at the AA meetings and psychiatric evaluations was primarily
for LFUCG’s benefit.
In Sehie v.
City of Aurora, a former emergency dispatcher sued her employer under the FLSA
claiming that her time spent attending and traveling to and from counseling
sessions mandated by her employer was compensable “work” under the FLSA. Sehie
v. Aurora, 432 F.3d 749, 750 (7th Cir. 2005). These counseling sessions stemmed
from a fitness for duty evaluation that was performed after Sehie was involved
in an incident at work. 9 Id. at 750. Upon completion of the evaluation, it was
recommended as a condition of Sehie’s continued employment that she attend weekly
psychotherapy sessions for six months. Id. The Seventh Circuit upheld the
district court’s finding that the sessions were primarily for the employer’s
benefit. Id. at 752.
However, the
facts of Sehie are clearly distinguishable from the instant case. First, in
Sehie, the Seventh Circuit explained that because the counseling sessions were
required and there was a shortage of telecommunications staff, a strong
inference arose that the sessions were for the employer’s benefit. Id. at 752.
In this case, no evidence has been presented that LFUCG has a shortage of
police officers and that the police department needed to retain Todd’s
services. As a result, the inference that the counseling sessions were for the
employer’s benefit which arose in Sehie, does not arise in this case.
In Sehie, the
court also found that the notion that the sessions were for the plaintiff’s
benefit was undermined by the fact that she was not permitted to see the
therapist with whom she had an existing treatment relationship. Id. In this
case, Todd was permitted to attend sessions with the psychiatrist of his
choosing and was able to attend the AA meetings that best met his needs. This
supports a finding that the sessions were primarily for Todd’s benefit.
Furthermore, unlike Sehie where the employer’s payment of ninety percent of the
costs of the counseling sessions was found to support a finding that the
sessions were for the employer’s benefit. In this case, Todd apparently bore
the costs of his various treatments.
The final
significant distinction is that in Sehie, the counseling sessions were required
because of an incident that occurred at work. In this case, the incident giving
rise to Todd’s fitness for duty evaluation occurred while he was off-duty and
at home. Furthermore, the purpose of the counseling sessions in Sehie was to
enable the plaintiff to “perform her job duties and relate to co-workers more
effectively and at a higher skill level by addressing…personality deficiencies
and problems that predated” her incident at work. Id. at 752. The sessions
sought to enable Sehie to manage her emotional problems which had become an issue
at work, properly respond to 911 calls and remain on the job in a position that
was short staffed. Id. None of these facts are present in the instant case.
There is no indication that there had been any problem with Todd’s on-duty
performance. Furthermore, the counseling sessions were not designed to improve
his on-duty performance, but to keep him at its existing level in the face of
the reasonable threat that his substance abuse problems might make him unfit
for duty and endanger himself or the public. As discussed above, there is also no indication that
LFUCG received any significant benefit from keeping Todd on-duty. Even
accepting that Todd was an excellent police officer, there is no indication
that his position was short-staffed so that a course of treatment that allowed
for his retention was primarily for LFUCG’s benefit.
As a result, the Court declines to apply Sehie’s holding
to these facts. Moreover, this court heeds the 7th Circuit’s caution that “by
no means does our ruling suggest that every time an employer gets help for its
employees, the employee must be compensated for hours worked.” Id. at 752. Instead, the Court finds that
the AA meetings and psychiatric evaluations were not necessarily and primarily
for the benefit of LFUCG. The record certainly supports that Todd was a valued
and capable police officer. 10 However, there is no evidence that his retention
was in any way crucial to the operations of the police department. Instead, it
appears that the primary beneficiary of the psychiatric evaluations and AA
sessions was Todd. He has acknowledged that sobriety has improved his life and
familial relations. Sobriety has also allowed Todd to retain his employment
with the police department, which was apparently threatened by his substance
abuse problems. The Court
cannot find that while in treatment, Todd learned any skills that enabled him
to become a more effective or valuable police officer. The skills that
Todd learned enabled him to keep his job and ensured that his conduct did not
threaten his ability to protect his own safety, the safety of fellow officers
and the safety of the public. While in other contexts, the rigid restrictions
put in place by the LFUCG might lead to a different conclusion, given the
safety sensitive nature of Todd’s employment as a police officer, these
restrictions do not appear to be unjustified and have enured primarily to his
benefit, not to the benefit of LFUCG.
C. Whether
Todd’s treatment was an indispensable part of the primary activities of Todd’s
Employment as a Police Officer?
The Court also
finds that Todd’s treatment was not an indispensable part of the primary
activities of his employment as a police officer. As LFUCG indicates, the
primary activities of police officers include activities such as patrol assignments,
apprehending criminals, performing investigations and responding to the various
happenings of daily life affecting the public safety. Sobriety is not a primary
activity of a police officer’s employment despite the fact that an officer’s
lack of sobriety may have a detrimental effect on his ability to perform the
requirements of his job adequately. Todd clearly was required to expend
significant energy to achieve his sobriety so that he could continue to be an
effective police officer. However, he performed no police work while at AA
meetings or psychiatric evaluations. This is the case despite the fact that
these sessions were required as a condition of his continuing employment.
Consequently, these sessions themselves are not a primary and indispensable
part of the duties of a police officer.
For the reasons discussed in this opinion, it is the
Court’s determination that Todd’s attendance at numerous AA meetings and
psychiatric evaluations since March 1, 2006, which were mandated by his employer,
does not constitute compensable “work” under the FLSA.
For the
foregoing reasons, the Court hereby ORDERS that:
(1) Defendant LFUCG’s Motion for Summary
Judgment (Rec. 16) is GRANTED; and
(2) Plaintiff Keith Todd’s Motion for Partial Summary
Judgment (Rec. 19) is DENIED.
Dated this 10th
day of December, 2009.
Signed By:
Karen K.
Caldwell
United States
District Judge
Notes:
1. Apparently
the agreed conditions differed slightly from Dr. Elliott’s recommendations. For
the remainder of his career, Todd is required to attend three AA meetings per
week with signed documentation from a sponsor. In addition, he was made subject
to two random urine tests for the first three months and then one test per month
thereafter. He was also required to have follow ups with a psychiatrist every
four months with the documentation forwarded to the police department.
2. This same
document indicates that the recommendations would remain in place for the
remainder of Todd’s career with the police department.
3. Todd had a
meeting with Michael Allen in January of 2008 to discuss changing some of the
existing restrictions. Id. at 24-25. This meeting was the result of an incident
that occurred while Todd was off-duty and on his way to work. Id. at 25. A call
was put out that an individual was in a home threatening suicide and
threatening officers with a gun. Id. When the individual’s name was put out,
Todd became aware that he knew him from his Alcoholics Anonymous group. Id.
Todd then went to the home and after talking to the individual on the phone
managed to get him to put away his gun and surrender to the police. Id. at
25-26. After the incident, Todd informed Chief Sutton that he believed it was
necessary for his own safety and the safety of his family, that he step away
from the AA meetings for a while. Id. This was because he and the suicidal
individual were regular attendees. Todd did not request that the required
number of meetings be reduced, but only requested that he be permitted to step
away from the meetings until it was safe to return. Id. at 26. As a result of
this incident, Todd began inquiring what the police department was doing with
the documentation that he was required to turn over to prove his attendance at
AA meetings and psychiatric evaluations. Id. at 27-30. Apparently, at some
point in early 2008, a majority of the restrictions imposed on Todd were
lifted. However, Todd remained subject to random drug and alcohol screenings
which would continue to occur once per month for the duration of his career.
Id. at 30-31.
4. Both parties in this case agree that the three step inquiry set forth by the Sixth Circuit in Brock v. City of Cincinnati governs resolution of whether Todd’s activities constitute “work” under the FLSA. All of the arguments addressed to the Court in the parties’ motions for summary judgment are made under this three step framework.
5. In Alvarez,
at least one officer apparently testified to the effect that officers were not
told that they had to run or train off-duty. Id. Another officer testified that
he trained when he liked for as long as he liked with the thought in the back
of his mind that he needed to be in good enough shape to get his job done. Id.
However, neither officer indicated that there was any sort of compulsion about
how long they should train while off duty, what exercises they should perform,
and where they should exercise. Id.
6. LFUCG
contends that it only adopted the recommendations of Dr. Elliott because it
believed that they were necessary for Todd to be fit for duty based on his
personal problems with alcohol consumption. (Rec. 16, Def.’s Mem. Supp. Summ.
J. 7-8). While the Court does not question the genuine nature of LFUCG’s belief
that these recommendations were necessary for Todd to be fit for duty, this
belief does not in any way change the Court’s analysis relating to whether the
sessions were required.
7. LFUCG argues
that Todd created his own specific circumstances that required different
fitness for duty standards for him as opposed to other officers who did not
have the same problems with alcohol abuse. (Reply, 3-4). While the Court does
not disagree with LFUCG that its actions may have been necessitated by Todd’s
behavior and problems with alcohol, the fact remains that the conditions
imposed on Todd were requirements and not recommendations. If they were merely
recommendations, Todd could have varied his attendance at AA meetings and
psychiatric sessions based on his perceived sobriety needs and could have
determined at some point that these sessions were no longer necessary. However,
the evidence submitted to the Court makes apparent that Todd was subject to
strict requirements about how many psychiatric evaluations and AA sessions he
had to attend, that these requirements were in place for the remainder of his
career and that any failure to comply would have resulted in his termination or
some other adverse employment action.
8. During Chief
Bastin’s deposition, he was asked whether “Keith Todd as of May 2006 in
addition to all” his normal duties also was required to attend three AA
meetings per week? (Rec. 17, Deposition of Ronnie Bastin, p. 16). He responded
that this was correct. (Id.).
9. Sehie’s
primary responsibility was fielding 911 calls. Id. The incident in question
arose at the end of Sehie’s shift on December 14, 2000. Id. After finishing her
shift, Sehie was informed by her supervisors that she would have to work
another eight hour shift because a co-workers was sick. Id. She protested but was
required to stay. Id. Less than an hour into this shift, she became very angry
and left work. Id. Between leaving work and returning the next day, she spoke
to her therapist and was prescribed medication for stress. Id. When she
returned to work she claimed that the absence was a work-related injury. Id.
10. Chief
Bastin acknowledged that part of the police department’s purpose in requiring
attendance at the AA meetings and counseling sessions was to allow Todd to
continue being a successful employee and contributing to the department’s
success. (Rec. 17, Deposition of Ronnie Bastin, p. 16).