                     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 at 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 employers
who employ police officers and firefighters for established work periods of up to
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 establish
twenty-eight-day work periods under § 207(k) need not pay overtime rates to
employees who work 171 hours or less in a particular work period. See 29 C.F.R.
§§ 553.201(a), 553.230(c). In this case, police officers employed by the City of
Hazelwood, Missouri, sued to recover unpaid overtime compensation allegedly owed
for the fifteen minutes they spend each day attending mandatory roll calls at police
headquarters.

        The City moved for summary judgment, submitting a September 15, 1985, Inter-
Office Memorandum from the City Manager to his staff announcing the establishment
of a twenty-eight-day work schedule for police officers, and affidavits from the Chief
of Police and the City Manager averring that the City had thereafter scheduled police
department personnel on a regularly recurring twenty-eight-day basis. The district
court1 granted summary judgment in favor of the City, concluding this evidence
satisfies the work period requirements of 29 C.F.R. § 553.224, plaintiffs 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 there 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 not
forfeit its § 207(k) exemption by paying overtime more generously than the Secretary’s
regulations would require, that the exemption need not be established by public
declaration, and that the City’s September 1985 memorandum unambiguously
established the exemption by declaring, “In compliance with FLSA . . . [e]ffective
September 15 . . . [t]he police department will be on a 28 day work schedule.”




      1
        The HONORABLE LAWRENCE O. DAVIS, United States Magistrate Judge
for the Eastern District of Missouri, to whom the case was assigned by consent of the
parties. See 28 U.S.C. § 636(c)(1).
      2
        The district court also dismissed FLSA minimum wage and state law claims
that are not at issue on this appeal.

                                           -2-
       Plaintiffs further argue 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 171
maximum hours permitted in the § 207(k) regulations. As the district court noted, this
claim was not pleaded and was untimely raised in response to the City’s motion for
summary judgment. In any event, it is without merit. See Monahan v. County of
Chesterfield, 95 F.3d 1263 (4th Cir. 1996).

       The judgment of the district court is affirmed. We deny the City’s motions to
strike 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.




                                         -3-
