United States District Court, W.D. Texas, Austin Division
BRYCE MILLER, ROBERT MILLS, MICHAEL STRAWN, JASON JEWERT, MICHAEL CANALES, and BELINDA MANGUM, Plaintiffs,
TRAVIS COUNTY, TEXAS, and SARAH ECKHARDT, in her official capacity, Defendants.
PITMAN UNITED STATES DISTRICT JUDGE.
the Court are Plaintiffs' partial motion for summary
judgment,  (Dkt. 27), and Defendants' motion for
summary judgment, (Dkt. 28). After reviewing the record,
briefing, and relevant law, the Court issues the following
all lieutenants in the Travis County Sherriff's Office,
seek compensation for time worked in excess of 40 hours per
week. They claim they are entitled to this compensation based
on three grounds: (1) Travis County has declined to
compensate them for overtime work in violation of the Fair
Labor Standards Act (“FLSA”); (2) Travis County
is obligated by a Texas statute to pay them overtime but has
failed to do so; and (3) by not paying them overtime, Travis
County has unconstitutionally deprived them of the property
right to overtime pay secured by the Texas statute. Three of
the plaintiffs were parties to a similar overtime case in
this Court, which went to trial in September 2016. (Cause No.
1:15-cv-331 [hereinafter “Escribano I”],
Dkt. 60). The jury returned a verdict for the
plaintiffs on their FLSA claims, (id., Dkt. 71), and
the Court partially granted the defendants' motion for
judgment as a matter of law and partially granted the
plaintiffs' motion for a new trial, (id., Dkt.
89). Subsequent post-trial briefing in that case is still
case, Travis County and Sarah Eckhardt, in her capacity as
Travis County Judge, (“Defendants”) have moved
for judgment on the pleadings regarding the constitutional
and state law claims. Both Plaintiffs and Defendants have
moved for summary judgment on the FLSA claim.
judgment is appropriate under Rule 56 of the Federal Rules of
Civil Procedure “if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). A dispute is “genuine” only if the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 254 (1986). “A fact
issue is ‘material' if its resolution could affect
the outcome of the action.” Poole v. City of
Shreveport, 691 F.3d 624, 627 (5th Cir. 2012).
party moving for summary judgment bears the initial burden of
“informing the district court of the basis for its
motion, and identifying those portions of [the record] which
it believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). “[T]he moving party may [also]
meet its burden by simply pointing to an absence of evidence
to support the nonmoving party's case.”
Boudreaux v. Swift Transp. Co., 402 F.3d 536, 544
(5th Cir. 2005). The burden then shifts to the nonmoving
party to establish the existence of a genuine issue for
trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 585-87 (1986); Wise v. E.I.
Dupont de Nemours & Co., 58 F.3d 193, 195 (5th Cir.
1995). “After the non-movant has been given the
opportunity to raise a genuine factual issue, if no
reasonable juror could find for the non-movant, summary
judgment will be granted.” Miss. River Basin
Alliance v. Westphal, 230 F.3d 170, 174 (5th Cir. 2000).
“Where a defendant moves for summary judgment on the
basis of an affirmative defense and, thus, bears the ultimate
burden of persuasion, ‘evidence must be adduced
supporting each element of the defense and demonstrating the
lack of any genuine issue of material fact with regard
thereto.'” Gellhaus v. Wal-Mart Stores,
Inc., 769 F.Supp.2d 1071, 1074 (E.D. Tex. 2011) (quoting
Terrebonne Parish Sch. Bd. v. Mobil Oil Corp., 310
F.3d 870, 877 (5th Cir. 2002)). The parties may satisfy their
respective burdens by tendering depositions, affidavits, and
other competent evidence. Topalian v. Ehrman, 954
F.2d 1125, 1131 (5th Cir. 1992). The Court views this
evidence in the light most favorable to the non-movant.
Rosado v. Deters, 5 F.3d 119, 122 (5th Cir. 1993).
for summary judgment “must be considered separately, as
each movant bears the burden of establishing that no genuine
issue of material fact exists and that it is entitled to
judgment as a matter of law.” Shaw Constructors v.
ICF Kaiser Engineers, Inc., 395 F.3d 533, 538-39 (5th
motion for judgment on the pleadings under Rule 12(c) is
subject to the same standard as a motion to dismiss under
Rule 12(b)(6).” Doe v. MySpace, Inc., 528 F.3d
413, 418 (5th Cir. 2008) (citing Johnson v. Johnson,
385 F.3d 503, 529 (5th Cir. 2004)). Accordingly, the Court
“must accept the factual allegations in the pleadings
as true, ” but the “plaintiff must plead
‘enough facts to state a claim to relief that is
plausible on its face, ” id. (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
MOTION FOR JUDGMENT ON THE PLEADINGS
have moved for judgment on the pleadings under Federal Rule
of Civil Procedure 12(c) with respect to Plaintiffs'
claims under Texas law, the United States Constitution, Texas
Local Government Code § 157.022, and certain specific
forms of relief sought by Plaintiffs. (Defs.' Mot. J. on
Pleadings and Mot. Summ. J., Dkt. 28, at 2).
Section 1983 Claim
assert that Defendants' failure to compensate Plaintiffs
for overtime hours worked deprives them of the right to
overtime pay conferred upon them by Texas statute, which
mandates overtime pay for certain peace officers. Tex. Loc.
Govt Code § 157.022(a) (“A peace officer employed
by a county with a population of more than one million may
not be required to work more hours during a calendar week
than the number of hours in the normal work week of the
majority of other county employees.”); id.
§ 157.022(c) (“A peace officer who elects to work
extra hours during a calendar week shall be compensated on a
basis consistent with overtime provisions of the county
personnel policy.”). Plaintiffs contend they have a
property interest in this guarantee of overtime compensation
and that Defendants have violated the Fourteenth Amendment by
depriving Plaintiffs of that property without due process.
U.S. Const. amend. XIV, § 1. Plaintiffs have accordingly
brought a claim pursuant to 42 U.S. § 1983. (Pls.'
Third Compl., Dkt. 18, ¶ 21).
counter that this claim is precluded, citing cases holding
that § 1983 claims based on FLSA violations are barred.
Defendants cite a Fourth Circuit decision and an opinion by
another district court in this circuit declaring § 1983
unavailable to plaintiffs bringing claims based on FLSA
violations. See Kendall v. City of Chesapeake, Va.,
174 F.3d 437, 443 (4th Cir. 1999) (“Congress has
evinced a clear intent to preclude the use of § 1983 for
the protection of overtime compensation rights secured by the
FLSA.”); Perez v. City of New Orleans, 173
F.Supp.3d 337, 349 (E.D. La. 2016) (dismissing a § 1983
claim on the grounds that the FLSA provides the exclusive
remedy under federal law for bringing claims related to
overtime pay violations). The two cases reason that Congress
intended to make the FLSA's remedial scheme the exclusive
means of pursuing a lawsuit alleging an FLSA violation,
thereby implicitly barring a § 1983 cause of action for
plaintiffs deprived of rights granted by the FLSA.
these cases have no bearing on Plaintiffs' § 1983
claim. Plaintiffs maintain that their § 1983 claim stems
from a property interest independently created by state law;
they do not allege that claim depends upon an underlying FLSA
violation. Plaintiffs claim a property interest in the right
to receive overtime compensation enumerated in the statute
and allege that Defendants have unconstitutionally deprived
them of that interest. (Pls.' Resp., Dkt. 31, at 17). The
rationale underlying Kendall does not apply to this
claim. Section 1983 provides a federal right of action to
those who “allege the violation of a right preserved by
another federal law or by the Constitution.”
Kendall, 174 F.3d at 440 (citing Baker v.
McCollan, 443 U.S. 137, 140, 144 n.3 (1979)). If the
right violated is secured by a federal statute, a person
“can bring an action pursuant to § 1983 only if
Congress has not foreclosed recourse to that statute.”
Id. The Kendall court found that the
FLSA's remedial scheme precluded a § 1983 remedy
based on a violation of FLSA. Id. at 443. However,
neither Kendall nor Perez held that the
FLSA precluded a § 1983 claim based on a right secured
by the Constitution itself. Those cases do not bar a §
1983 property right claim merely because it is related to the
same subject matter-overtime compensation-as the FLSA. The
plaintiffs in those cases did not bring a § 1983 claim
that alleged the deprivation of a property interest granted
by the state, as Plaintiffs do here.
hallmark of property, the Court has emphasized, is an
individual entitlement grounded in state law, which cannot be
removed except ‘for cause.'” Logan v.
Zimmerman Brush Co., 455 U.S. 422, 430 (1982) (quoting
Memphis Light, Gas & Water Div. v. Craft, 436 U.S.
1, 11-12 (1978)). Although the types of interests
constitutionally protected as property “are varied and,
often as not, intangible, ” id., the property
interest in money claimed by Plaintiffs here falls on the
tangible end of the spectrum. If a state statute does secure
a right to overtime compensation, and Defendants have
deprived Plaintiffs of that right without due process, then
Plaintiffs may have a valid § 1983 claim.
Texas Local Government Code Section 157.022
discussed above, Section 157.022 mandates overtime pay for
certain peace officers. It does not, however, provide an
express remedy for peace officers who are not paid
accordingly. Tex. Loc. Govt Code § 157.022. Although
this statute may provide the source of a valid § 1983
claim for deprivation of a property right, Plaintiffs have
not shown that Texas law provides a private cause of action
for a violation of this statute. Plaintiffs' suggestion
that Karr v. City of Beaumont supports their
position misapprehends the case. Plaintiffs assert that the
Karr court “granted summary judgment to police
officers of the City of Beaumont based upon claims that they
were entitled to overtime for work over 40 hours in a week
pursuant to Texas Local Government Code §
142.005.” (Pls.' Resp., Dkt. 31, at 16). It is true
that the court granted summary judgment to police officers.
But it was not because of Texas Local Government Code §
142.005. Rather, that provision prevented the defendants from
claiming a particular exemption to the FLSA-Section
207(k)-that is not at issue in this case. The court's
reason for doing so was based on the FLSA itself, which
provides that the Section 207(k) exemption does not apply
when a state law establishes a maximum workweek lower than
the maximum workweeks established by the FLSA. The court did
not, as Plaintiffs suggest, ground its finding for the
plaintiffs on the government code provision, which was only
significant insofar as it rebutted an argument that is