This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







Brent Wiebusch,





City of Champlin,



Filed May 27, 2003

Reversed and Remanded

Randall, Judge


Hennepin County District Court

File No. EM 01-017661



Paul Alan Livgard, Dwight G. Rabuse, Matthew P. Lewis, Kristin Solveig Loedrup, Livgard & Rabuse, P.L.L.P., 2520 University Avenue SE, Suite 202, Minneapolis, MN 55414 (for appellant)


Julie Fleming-Wolfe, 1010 Degree of Honor Building, 325 Cedar Street, St. Paul, MN 55101 (for respondent)



            Considered and decided by Randall, Presiding Judge, Shumaker, Judge, and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N


            On appeal from summary judgment dismissing his claim for unpaid wages under the Fair Labor Standards Act (FLSA), appellant argues that (1) the district court erred in concluding that his positions as Recreation Supervisor and Recreation/Arena manager were exempt, (2) genuine factual issues remain as to whether his position was exempt, and (3) the summary dismissal of his unjust enrichment claim is inconsistent with the determination that his position was exempt.  We agree that material issues of fact remain, and therefore we reverse the district court’s grant of summary judgment and remand for further proceedings.  Because appellant has a remedy on the merits under FLSA, his alternative issue of a quantum meruit claim is moot, and we affirm the district court’s dismissal of that claim. 


             In 1990, appellant was hired by respondent City of Champlin (the City) as the City’s Recreation Supervisor.  Appellant stayed in this position for approximately six years.  In 1996, appellant was promoted to the new position of Recreation and Arena Manager after the City constructed an ice arena.  Appellant left his employment with the City in 2001 to pursue other opportunities.  The parties vigorously disagree about the nature of appellant’s employment with the city. 

            When appellant was initially hired, his hiring letter established his compensation for a “Recreation Supervisor” at “9.40 per hour.”  From a “Supervisory Status Questionnaire,” that appellant completed in 1995, appellant hired, suspended, promoted, and discharged employees.  This form indicated that appellant spent 60% of his time on supervisory activities.  In addition, appellant answered yes to the question

Are you responsible for any facility, program operation, research or other function which could not continue or could be harmed where you or your immediate supervisor unavailable to perform your duties?


Appellant also listed that 1 “Full-time” and 50 “Other than Full-Time” employees were under his control.  Finally, when asked, “What is the class title of the highest paid employee under your control?” appellant wrote “Mid Level Management.”

            In 1996, appellant was promoted to the position of Recreation and Arena Manager.  In the city's “Request for Personnel Action,” appellant’s new wage was listed as $45,759 per year, or $21.9995 per hour.  The duties listed for this position included

Over-all administrative duties of the community arena, administration of adult softball programs and field allocation process.  In addition this position would coordinate the annual road race and serve under the general supervision of the Parks and Public Works Director.


This document also lists 10 duties/responsibilities, including preparing a budget and capital improvement program and “maximize use of all personnel to cost effectively coordinate staff coverage to correspond with peak usage.”  This document clearly states that the position is an “EXEMPT POSITION.”

            In 2001, after appellant left his employment with the city, he sought payment for his accrued comp time.  When the City refused, appellant sued, claiming entitlement to pay for 667 hours of accrued comp time.  The suit also included a common law claim for unjust enrichment.  The City moved for summary judgment on the comp-time claim, arguing that the jobs were exempt positions.  The district court granted summary judgment in favor of the City and dismissed appellant’s unjust enrichment claims.



Salaried versus hourly

            On appeal from summary judgment, this court determines whether there are any genuine issues of material fact and whether the district court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  On review, we view the evidence “in the light most favorable to the party against whom judgment was granted.”  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  Summary judgment is a “blunt instrument” and should be employed only where it is perfectly clear that no disputed issue of fact is involved, and that it is neither desirable nor necessary to inquire into facts which might clarify the application of the law.  Donnay v. Boulware, 275 Minn. 37, 45, 144 N.W.2d 711, 716 (1966).  

            Under both the federal FLSA and the Minnesota FLSA, salaried administrative, executive, and professional employees are exempt employees.  29 U.S.C. § 213(a)(1) (2002); Minn. Stat. § 177.23, subd. 7(6) (2002).  Both parties here agree that if appellant’s position is not salaried, it is not exempt.  See 29 C.F.R. 541.1-.3, .118.  Appellant contends that he was not salaried in either position.  An hourly wage does not qualify as a “salary” under the rules.  The Minnesota rules explain:

A salary is not an hourly rate.  An employee is paid a salary if the employee, through agreement with an employer, is guaranteed a predetermined wage for each workweek.


Minn. R. 5200.0211, subp. 1 (2001); see also 29 C.F.R. 541.118.  Appellant notes that there was never a time when he did not have enough compensatory (“comp”) time to make up for any absences.  The district court, finding it to be an indicia of a “salary” rather than an “hourly” rate, noted the fact that appellant’s “hourly wages” always ended up in the full amount as if he had worked a full week.  However, this standing alone is not determinative.  In fact, in support of appellant’s argument, the district court found that there was “no evidence that [appellant] ever worked less than 40 hours per week and did not have enough vacation, sick, or compensatory time to total 40 hours per week.”  Thus, the fact that appellant’s periodic paychecks were constant, as salaried employees tend to be, does not prove that he was not hourly.

            Importantly, appellant claims that Dan Wells, the city’s former personnel director, told him that he would be paid for his unused comp time when his employment was terminated.  This does not support the conclusion that appellant was guaranteed a predetermined wage like other salaried employees.  Appellant points to deposition testimony stating that if he worked less than 80 hours and had no sick, vacation, or comp time to make up the difference, he would be paid less.  That is a true indicia of an hourly-wage employee.  In sum, appellant has shown that material issues of fact exist regarding whether appellant's salary was predetermined, and, whether he was a true salaried employee. 

            As to his second position, appellant points to City documents, one of which lists his pay type as hourly, the hourly rate as 27.5656, and the line for “salary” reads .00.  He argues that this shows a disputed issue of material fact whether he was salaried in this position as well.  Respondent points to documents, on the second position, which state an annual salary and documents which list appellant’s position as exempt.  This is a clear case of a disputed material fact, namely whether appellant was salaried or hourly. 

            At oral argument, respondent argued that the documents show that appellant “should have known” his second position was exempt.  However, this argument contradicts respondent’s argument on the first position, that we should ignore appellant’s documentation because what the parties think, or even what the parties tell each other, should not be determinative.  Simply put, appellant has shown that disputed material issues of fact exist as to both of his jobs, and his claims are entitled to survive dismissal by summary judgment.


Alternative equitable remedy

            Appellant also argues that the district court erred by dismissing his alternative equitable claim for quantum meruit.  He argued that the city was unjustly enriched, claiming it broke an oral commitment to pay him for unused comp time when he left his job.  He further argues that the employee handbook requires that he be paid for his comp time.  We disagree.  The handbook states that exempt employees are not paid for their comp time when they leave City employment.  Thus, this issue is whether appellant’s positions were FLSA exempt or non-exempt.  Appellant has a perfectly proper legal remedy under FLSA, which he can pursue and will either win or lose on the merits.  Respondent does not deny that FLSA is applicable.  They simply argue that under FLSA, appellant loses.  If appellant loses on the merits, it will be because he was an exempt employee.  If this is so, he has suffered no harm, legal or equitable.  As such, the district court properly dismissed his equitable claim.

            Reversed and remanded.                                                                                                  

*   Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.