UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

KEITH MICHAEL WISE, Lieutenant;
JOHN APPLEWHITE; PAUL SCOTT
BAKER; GARY D. BEAR; MICHAEL W.
BLANKENSHIP; MARK ALLEN BOYD;
ROGER THOMAS BURRIS; TODD F.
CANNON; JOHN M. CARMODY; PAUL
S. CHADWICK; ALBIN B. COKE; GALE
F. CROSS; CHRISTOPHER DAVIS; JOHN
E. DIBACCO; DAVID OWEN DIXON;
LORENZ SAM DUHL; PHILIP H. EAST;
DEAN LEE EDDY; ROBERT L.
EDWARDS; JAMES D. ELLIOTT; BRUCE
L. EVANS; RICHARD GRAFTON
FENTRESS; DAVID FLITTON; JOHN F.
FORBES; MARTIN T. GROSS; JOHN
HUMPHREY; MARTIN E. KRESOVICH;
                                    No. 99-2135
PAUL B. LEGG; CHRISTOPHER
MICHAEL LEONARD; ROBERT G.
MATTICE; PAUL D. MOORE; WAYNE
E. MOORE; KENNETH A. MUHLEMAN;
J. N. NOAH; JAMES A. REYNOLDS;
KENNETH L. REYNOLDS, SR.; DENNIS
L. SCHMIDF; WILLIAM E. SIGAFOOS,
JR.; MARK E. SPENCER; RONALD W.
SPRUILL; LONNIE R. STEADMAN;
LINCOLN W. THOMAS; JAMES A.
BATTERSBY; DONALD R. GRANT;
DENNIS M. HODGE; RONALD E.
MORGAN; KEITH A. PARTAIN; KEITH
MICHAEL; STEVEN K. LINDBLAD;
RICHARD P. MORRIS,
Plaintiffs-Appellants,
and

INTERNATIONAL ASSOCIATION OF FIRE
FIGHTERS NORFOLK LOCAL 68,
Plaintiff,

v.

CITY OF NORFOLK,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Jerome B. Friedman, District Judge.
(CA-98-1336-2)

Argued: May 3, 2000

Decided: May 30, 2000

Before WIDENER and MOTZ, Circuit Judges, and
Frank W. BULLOCK, Jr., United States District Judge for the
Middle District of North Carolina, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Thomas Francis Hennessy, III, THOMAS F. HEN-
NESSY, P.C., Chesapeake, Virginia, for Appellants. Scott William
Kezman, KAUFMAN & CANOLES, P.C., Norfolk, Virginia, for
Appellee. ON BRIEF: Stanley G. Barr, Jr., KAUFMAN &
CANOLES, P.C., Norfolk, Virginia, for Appellee.

_________________________________________________________________

                     2
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Certain fire department captains and lieutenants filed this action to
obtain overtime pay from the City of Norfolk under the Fair Labor
Standards Act of 1938 (FLSA), 29 U.S.C. § 216(b) (1994 & Supp. IV
1998). The district court granted the City's motion for summary judg-
ment. We affirm.

I.

A number of captains and lieutenants in the City of Norfolk's Divi-
sion of Fire and Paramedical Services brought this action against the
City seeking overtime pay under FLSA. The City had denied them
overtime pay because it concluded that they were executive employ-
ees and so statutorily exempt from FLSA overtime pay requirements.
See 29 U.S.C. § 213(a)(1) (1994 & Supp. 1998) ("[t]he provisions . . .
of this title shall not apply with respect to . . . any employee employed
in a bona fide executive, administrative, or professional capacity").

The district court granted the City summary judgment for two rea-
sons. First, the court found that a judgment denying FLSA overtime
pay in a suit brought in 1988 by other captains and lieutenants in the
Norfolk Fire Department (the predecessor of the Division of Fire and
Paramedical Services) constituted res judicata barring this suit. See
Chadwick v. City of Norfolk, No. 88-248-N (E.D. Va. Dec. 19, 1988).
Alternatively, the court concluded that the captains and lieutenants
were executive employees not entitled to overtime under § 213(a)(1).

II.

In order for the doctrine of res judicata to apply, there must be "[1]
a final judgment [2] on the merits . . . [3] by parties or their privies
[4] based on the same cause of action." Montana v. United States, 440

                     3
U.S. 147, 153 (1979). Indisputably, the first and second elements are
present here, just as clearly the third--the same parties or their privies
--is not.

"[P]arties or their privies" encompass relationships in which a party
to the prior action is "so closely aligned with the interests of a non-
party as to be his virtual representative." See Klugh v. United States,
818 F.2d 294, 300 (4th Cir. 1987); Nash County Bd. of Ed. v. Bilt-
more Co., 640 F.2d 484, 493-94 (4th Cir. 1981). This principle of vir-
tual representation applies, however, only when the parties in the first
suit are "accountable to the nonparties who file a subsequent suit,"
and the "party [in the first suit] acting as a virtual representative for
a nonparty" has at least "the tacit approval of the court" to do so.
Klugh, 818 F.2d at 300.

Thus, we have found that a prior antitrust suit brought by a state
attorney general on behalf of the state's school boards precluded an
individual school board from bringing an antitrust suit against the
same defendants for the same conduct, because the attorney general
was a virtual representative of the school board. Nash, 640 F.2d at
493-94. Similarly, we have concluded that a prior suit to quiet title by
adult, minor, and incompetent heirs precluded a subsequent suit by
the minor and incompetent heirs, even if they had been insufficiently
represented in the first suit, because the adult heirs were virtual repre-
sentatives of the minor and incompetent heirs and because the "[first]
court was on notice that the adult heirs would be acting in the capac-
ity as virtual representatives for these remaindermen." Klugh, 818
F.2d at 301. In that same case, however, we held that adult heirs did
not constitute virtual representatives of the unborn or unknown heirs,
because the first court could not have recognized the virtual represen-
tation without knowing the identity of those unborn or unknown heirs.
Id. at 300.

The plaintiff captains and lieutenants in this case, who were not
parties to the previous case, stand in the same position as the
unknown heirs in Klugh.1 Though they may exercise functions and
_________________________________________________________________
1 Because the City is entitled to summary judgment on other grounds,
we do not reach the question of whether res judicata bars the claims of
the nine plaintiffs in this case who were plaintiffs in Chadwick.

                     4
bring claims very similar to those of the plaintiffs in Chadwick, it
would have been impossible for the Chadwick court to know in 1988
the precise identities of those who would be captains and lieutenants
in 1998. Therefore, the Chadwick court could not have given its "tacit
[or explicit] approval" to the Chadwick plaintiffs' virtual representa-
tion of the present plaintiffs who were not parties in Chadwick; nor
could the Chadwick plaintiffs have been accountable to the present
plaintiffs whose identities the Chadwick plaintiffs did not know.

The City's reliance on Rush v. Superintendent of Police, No.
93C1675, 1994 WL 114847 (N.D. Ill. Apr. 4, 1994) (unpublished),
demonstrates the weakness of its position. Not only is Rush without
any precedential weight, but after Rush, the Seventh Circuit limited
the virtual representation doctrine fashioned in Rush by overturning
a published district court opinion that had relied on Rush. See Tice v.
American Airlines, Inc., 162 F.2d 966, 971 (7th Cir. 1998). The Sev-
enth Circuit pointed out that applying virtual representation to a situa-
tion like that at hand--when the parties in the prior suit are not
accountable to the parties in the subsequent suit, and when the parties
in the prior suit have not received at least the"tacit approval" of the
court to serve as virtual representatives of the subsequent plaintiffs--
could raise "serious due process problems." Id. Without knowing the
identities of those virtually represented, a court would be unable to
take appropriate precautions to protect their interests; without
accountability, the plaintiffs in the prior suit would have no reason to
protect those interests either.

We therefore decline to extend the virtual representation doctrine,
and hold that the plaintiffs in the Chadwick case were not virtual rep-
resentatives of the present plaintiffs who were not plaintiffs in Chad-
wick. Accordingly, res judicata does not bar those plaintiffs from
bringing the case at hand.

III.

Alternatively, the district court held that the"fire captains and lieu-
tenants are properly exempt under the executive exception of the
FLSA." The captains and lieutenants contend that they are more
appropriately classified as "working foremen" rather than executive
employees since their responsibilities fighting fires and performing

                     5
manual work around the firehouse are more substantial than their
supervisory and managerial duties.

The parties agree that because the salaries of captains and lieuten-
ants are more than $250 a week the appropriate test for determining
whether they are executive employees is the "short test." See 29
C.F.R. § 541.1(f) (1998). The rule of thumb under the short test is that
an employee is exempt from FLSA'S requirements if he supervises
at least two employees and spends more than 50% of his time manag-
ing a "recognized subdivision" of the relevant department. Alterna-
tively, if an employee supervises at least two employees and spends
less than 50% of his time on managerial duties, he may still be
exempt if "[o]ther pertinent factors . . . indicate that management is
the employee's primary duty." Shockley v. City of Newport News, 997
F.2d 18, 25-26 (4th Cir. 1993); see also West v. Anne Arundel County,
137 F.3d 752, 763 (4th Cir. 1998); 29 C.F.R. § 541.103 (1998). It is
uncontroverted that the Norfolk captains and lieutenants supervise at
least two people; the issue therefore becomes whether they spend at
least 50% of their time managing.

In West, we reversed a district court's holding that field lieutenants
responsible for emergency medical technician teams in a Maryland
fire department did not spend at least 50% of their time managing.
137 F.3d at 763. We reasoned that even though the lieutenants
worked in the field, they were not "working foremen" because their
responsibilities for supervising and managing "people and equipment
assigned to their units," which were recognized subdivisions of the
fire department, were dominant even if integrated into their other
responsibilities. Id. In Shockley we affirmed a district court's conclu-
sion that patrol sergeants in the Newport News police department fell
within the executive employee exception because although they
worked alongside officers of lesser rank, they were responsible for
assigning tasks and equipment among officers and otherwise handling
internal resource allocation issues. 997 F.2d at 26-28.

The undisputed facts in this case are legally indistinguishable from
those in West and Shockley.2 Accordingly, these precedents require
_________________________________________________________________
2 These cases also require us to reject the officers' interpretation of the
words "recognized subdivision," see Brief of Appellants at 21. Just as the
emergency medical technician teams in West and the police officers in
Shockley constituted "recognized subdivisions" of their respective city
departments, so too do the ladder companies and fire stations here.

                    6
rejection of the captains' and lieutenants' claim that they have almost
no discretion in managerial decisions, including discipline and equip-
ment acquisition (though they evaluate and recommend both), and
that due to personnel cuts their working hours are largely consumed
by fire fighting and manual labor in the fire houses. Although the cap-
tains and lieutenants may have no authority to "determine issues such
as staffing and which areas of [the] city are covered by a particular
fire station," Brief of Appellants at 23, they do not dispute that they
retain the power to assign tasks and otherwise allocate resources
within a particular ladder company or a particular fire station. If we
accept the facts in the light most favorable to the officers, as we must,
these responsibilities are exercised largely while performing the other
line tasks of non-managerial fire fighters. However, the plaintiff offi-
cers in West and Shockley also managed as they worked along side
officers of lower rank--indeed, in those cases the relationship
between line work and management was similar to that in this case--
and we, nonetheless, concluded that the plaintiff captains, lieutenants,
and even sergeants were exempt from the overtime provisions of FLSA.3

The captains and lieutenants insist that, functionally, they lack
management discretion. The absence of discretionary and decision-
making authority without more, however, has been soundly rejected
as determinative in qualifying employees as "working foremen" rather
than executive employees exempt from FLSA overtime requirements.
See Donovan v. Burger King Corp., 672 F.2d 221, 226 (1st Cir. 1982)
(Burger King assistant managers were executive employees under
§ 213 even though they were "unable to make any significant or sub-
stantial decisions on [their] own," in part because "one can still be
`managing' if one is in charge, even while physically doing some-
thing else"). We agree. The appropriate analysis requires an evalua-
tion of all of the facts of the employee's position. See 29 C.F.R.
§ 541.103. Limited discretion alone does not transform an employee
into a "working foreman" if the employee also has substantial super-
_________________________________________________________________
3 In West, the lieutenants had the power to "evaluate" their charges. The
plaintiffs here had the same power, but allegedly without the ability to
take significant remedial action in the event of a negative evaluation.
Considering the responsibilities of the plaintiffs here in relation to those
of the plaintiffs in West as a whole, however, this distinction is not deter-
minative.

                    7
visory and managerial responsibilities that consume more than 50%
of his time--even if he performs those supervisory and managerial
responsibilities "while physically doing something else." Donovan,
672 F.2d at 226.

Finally, though Chadwick does not bar this suit for most of the
plaintiffs, its findings and reasoning are instructive here. The 1988 job
descriptions for lieutenants and captains were, in all material respects,
identical to those in 1998. Moreover, although the captains and lieu-
tenants assert that a 1991 merger between the fire department and the
paramedic department led to a reduction in workforce, which required
them to do more fire fighting and more manual work around the sta-
tion, they have failed to identify specific material differences between
the responsibilities of officers of their rank in 1988 and 1998. The
captains and lieutenants have provided no evidence that while doing
line work they were not still managing, allocating responsibilities and
resources. Without such evidence to support the claim that their actual
responsibilities were distinct from those in 1988 and those articulated
in their written job descriptions, their claim must fail in light of West,
Shockley, and the persuasive guidance of Chadwick.

IV.

The fire department captains and lieutenants perform invaluable
services. However, the FLSA provides that those who act as executive
employees, like the captains and lieutenants, are exempt from its pro-
tection. Therefore, although the district court erred in granting sum-
mary judgment on the ground that Chadwick barred this suit, the court
was correct in finding on the undisputed material facts of this case
that the captains and lieutenants are executive employees exempt
from FLSA requirements.

AFFIRMED

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