Kari Sehie v. City of Aurora

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2308
K ARI S EHIE ,
Plaintiff-Appellee,
v.
C ITY OF A URORA ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 C 945—Matthew F. Kennelly, Judge.
____________
A RGUED A PRIL 13, 2005—D ECIDED D ECEMBER 27, 2005
____________
Before B AUER , W OOD , and W ILLIAMS , Circuit Judges.
W ILLIAMS , Circuit Judge. Kari Sehie, a former emergency
dispatcher for the City of Aurora (“Aurora”), sued her
former employer for claims arising from the Fair
Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. §§ 207,
216 (2005). The parties stipulated to the facts and the
district court entered judgment in favor of Sehie. The issue
before us is whether the time Sehie spent attending and
traveling to and from counseling sessions that Aurora
mandated are compensable under the FLSA. We agree with
the district court that this time is compensable, and affirm.

-- 1 of 10 --

2 No. 04-2308
I. BACKGROUND
Aurora hired Sehie as an emergency dispatcher in May
1994; her primary duty was to field 911 calls. Sehie worked
in this position until she voluntarily resigned on June 12,
2001. This case does not focus on that resignation; rather,
it involves an unscheduled absence from her work. At the
end of Sehie’s eight hour shift on December 14, 2000, her
superiors instructed her to stay and work another shift
because a co-worker was sick. Sehie protested, but her
supervisor required her to stay nonetheless. A half-hour
into the new shift, Sehie became very angry and upset
because she was working another shift and abruptly left
work. Between leaving work on December 14th and return-
ing the next day, Sehie spoke with her therapist and took
medication for her stress. When Sehie returned to work, she
reported the absence as a work-related injury.
Aurora required Sehie to submit to a fitness for duty
evaluation as a result of her leaving work on December
14th. The physician who performed the evaluation, Dr.
Steven Stanard, said that Sehie was fit for duty, but
recommended as a condition of her continued employ-
ment that she attend weekly psychotherapy for six months.
Dr. Stanard further noted that after six months he would
reevaluate Sehie. Aurora adopted Dr. Stanard’s recommen-
dations, and as a result ordered Sehie to see its therapist,
Dr. Maria Nucci, outside of her regularly scheduled work
hours. Sehie requested to see her own therapist, whom she
had frequently consulted with, but Aurora refused Sehie’s
request. Between February 2001 and Sehie’s resignation in
June 2001, she attended 16 sessions with Dr. Nucci,
spending an hour at each session. Sehie also spent two
hours traveling back and forth by car to each session.
Sehie sued Aurora under the FLSA, claiming that Aurora
should have paid her for the time she spent attending and
commuting back and forth to the counseling sessions with
Dr. Nucci, because this time was beyond her normal forty-

-- 2 of 10 --

No. 04-2308 3
hour work week. The district court made its findings based
on stipulated facts pursuant to Fed. R. Civ. P. 52(a). The
district court ruled in favor of Sehie, concluding that the
time she spent attending and traveling to and from the
counseling sessions was compensable under the FLSA.
II. ANALYSIS
A. Standard of Review
When, as in this case, a district court enters judgment
based on stipulated facts, the district court’s decision is
reviewed in accordance with Fed. R. Civ. P. 52(a). As
such, we review the district court’s legal conclusions de novo
and review any findings of fact for clear error. See Johnson
v. West, 218 F.3d 725, 729 (7th Cir. 2000); see also Hess v.
Hartford Life & Acc. Ins. Co., 274 F.3d 456, 461 (7th Cir.
2001). We will also review any application of the law to the
facts for clear error. Id. We also review the district court’s
findings derived from stipulated facts for clear error. TMF
Tool Co., Inc. v. Siebengartener, 899 F.2d 584, 588 (7th Cir.
1990).
B. Sehie’s Counseling Sessions Were Necessarily and
Primarily for the Benefit of Aurora.
The district court did not clearly err by finding that
Sehie’s counseling sessions were necessarily and primarily
for the benefit of Aurora. Because the district court’s
determination of this issue involves a finding of fact and
a finding derived from stipulated facts, we review for
clear error. Johnson, 218 F.3d at 729.
The FLSA states that “no employer shall employ any
of his employees . . . for a workweek longer than forty hours
unless such employee receives compensation . . . at a rate
not less than one and one-half times the regular rate at

-- 3 of 10 --

4 No. 04-2308
which he is employed.” 29 U.S.C. § 207(a)(1) (2005). While
the FLSA defines “employ” to mean “to suffer or permit to
work,” the meaning of the term “work” is not defined by the
Act. See 29 U.S.C. § 203(g) (2005); see also 29 C.F.R. § 785.6
(2005). However, the general rule is that an employee must
be “paid for all time spent in ‘physical or mental exertion,
whether burdensome or not, controlled and required by the
employer, and pursued necessarily and primarily for the
benefit of the employer or his business.’ ” 29 C.F.R. § 785.7
(2005) (quoting Tennessee Coal, Iron, & R.R. Co. v. Muscoda
Local No. 123, 321 U.S. 590, 598 (1944)). Subsequent to
Tennessee Coal, the Supreme Court ruled that there need be
no exertion at all, and that all hours that the employee is
required to give his employer are hours worked, even if they
are spent in idleness. Armour & Co. v. Wantock, 323 U.S.
126, 133 (1944).
In any case, neither party disputes that Sehie physically
or mentally exerted herself and that her employer re-
quired her to do so. However, Aurora argues that the
counseling sessions were not pursued necessarily and
primarily for its own benefit. Aurora contends that med-
ical treatment always primarily and necessarily benefits the
employee, and the fact that the medical treatment here was
mandated by Aurora is inconsequential. Aurora also opines
that the medical treatment was necessarily and primarily
for the benefit of Sehie, because “[the mandatory treatment]
minimizes the prospect that she would again abandon her
job and lose her job as a result.” We disagree. Attendance at
the sessions was a mandatory condition of Sehie’s continued
employment. This requirement, combined with the fact that
Aurora was short of telecommunications staff, creates a
strong inference that the counseling sessions were for
Aurora’s benefit. In addition, Aurora would not let Sehie see
her own therapist, with whom she had a prior medical
relationship. We find it odd that Aurora would not let Sehie
see her own therapist if Aurora believed that these counsel-

-- 4 of 10 --

No. 04-2308 5
ing sessions were for her benefit. Furthermore, instead of
permitting Sehie to see her own therapist (presumably at
her own cost), Aurora paid for 90 percent of the cost of each
counseling session with Dr. Nucci.
Also, the record establishes that the purpose of the
required counseling sessions was to enable Sehie to perform
her job duties and relate to co-workers more effectively and
at a higher skill level by addressing what Dr. Stanard
observed as personality deficiencies and problems that
predated the events of December 14, 2000. Sehie was known
to have had several “frictional” episodes with others on the
job. It was not clearly erroneous for the district court to
conclude that the purpose of these counseling sessions was
for Aurora to help Sehie avoid and manage these type of
emotional problems, and in doing so to ensure that Sehie
properly responded to emergency calls and stayed on the job
in a position that was short-staffed. These reasons all
primarily benefit Aurora. We emphasize the very fact-
specific nature of our inquiry here. By no means does our
ruling mean that every time an employer gets help for its
employees, the employee must be compensated for hours
worked. Our holding here is narrow, and we cannot say that
the district court finding was clearly erroneous.
C. Work-Related Injury and 29 C.F.R. § 785.43
We also decline to find as a general rule that 29 C.F.R.
§ 785.43 prevents compensation for the time an employee
spends during non-working hours receiving employer-
required treatment for a work-related injury. As this
issue involves a question of law, our review is de novo.
Johnson, 218 F.3d at 729. 29 C.F.R. § 785.43 (2005) reads:
Time spent by an employee in waiting for and
receiving medical attention on the premises or at
the direction of the employer during the employee’s

-- 5 of 10 --

6 No. 04-2308
normal working hours on days when he is work-
ing constitutes hours worked.
Aurora argues that this regulation stands for the proposi-
tion that an employee who receives treatment for a work-
related injury can receive compensation only if the treat-
ment is required by the employer and it occurs during the
employee’s scheduled hours of work. In contrast, Sehie
argues that § 785.43 proposes a definition of “hours worked”
in one particular situation out of many, and is not, as the
district court noted, an “all encompassing regulation that
defines the entire universe of what is and what is not hours
worked.” We disagree with Aurora’s rigid reading of this
regulation, and agree with the district court.
To support its position, Aurora has presented us with
several Department of Labor (“DOL”) opinions that it
contends support its argument. In one DOL opinion letter
dated March 12, 1987, a fire department sought the DOL’s
advice regarding its policy requiring fire personnel, prior to
returning from sick leave, to visit their private physician
and obtain a certificate stating that they were able
to return to duty. The fire department further mandated
that the employee must receive this certificate during off-
duty hours. The fire department inquired as to whether the
time the employee spent obtaining this certificate consti-
tuted “hours worked” under the FLSA. The DOL opinion
letter cited § 785.43 and stated that in order for the time
waiting for or receiving medical attention or treatment to be
compensable, it must occur during working hours. See
Hours Worked/Medical Certificates, 6A Labor Relations
Reporter, Wages & Hours Manual (BNA) at 99:5161 (Dep’t
of Labor, Mar. 12, 1987). Other opinion letters that Aurora
cited also propose that in order for time spent treating a
work-related injury to be compensable under the FLSA, the
employee’s visit to a doctor must be at the direction of the
employer and it must occur during the employee’s normal
work hours. See Firefighters/Hours Worked, 6A Labor

-- 6 of 10 --

No. 04-2308 7
Relations Reporter, Wages & Hours Manual (BNA) at
99:5181 (Dep’t of Labor, Sept. 10, 1987); Opinion Letter Fair
Labor Standards Act (FLSA), 1994 WL 1004851 (Dep’t of
Labor, July 15, 1994).
We are unpersuaded by Aurora’s reliance on these DOL
opinions. First, we are not bound by informal administra-
tive opinions. “Interpretations such as those in opinion
letters—like interpretations contained in policy statements,
agency manuals, and enforcement guidelines, all of which
lack the force of law—do not warrant Chevron [U.S.A., Inc.
v. Natural Resources Defense Council, Inc., 467 U.S. 837
(1984)]-style deference.” Christensen v. Harris County, 529
U.S. 576, 587 (2000). In addition, there is no “conclusive
mystique” in the informal publications of the DOL opinion
letters which could be substituted for an act of Congress.
See Marshall v. Rosemont, 584 F.2d 319, 321 (9th Cir.
1978).
In addition, Sehie can easily point to other DOL opin-
ions supporting her position. As acknowledged by the
district court, the DOL has also issued opinions conclud-
ing that when an employer requires an employee to
attend physical or mental examinations, including psychiat-
ric examinations, during non-working hours as a condition
of continued employment, the time spent undergoing such
examinations constitutes “hours worked” and is therefore
compensable under the FLSA. See Required Physical
Examinations/Hours Worked, Wages & Hours Manual
(BNA) (Dep’t of Labor, Oct. 7. 1997); Police/Hours Worked,
Wages & Hours Manual (BNA) (Dep’t of Labor, Aug. 2,
1989); Hours Worked/Medical Exams, WH-263 (Dep’t of
Labor, Apr. 4, 1973). For example, in one letter the DOL
concluded that time spent undergoing man-
datory psychiatric examinations outside of working hours
must be counted as “hours worked.” The DOL explained its
reasoning as follows:

-- 7 of 10 --

8 No. 04-2308
Q.1 You seek to know whether medical or psychi-
atric examinations which are conducted
outside of working hours and which the City’s
police officers are required to have
are compensable under FLSA.
A.1 Generally, it may be said that whenever an
employer imposes special requirements or
conditions that an employee must meet before
commencing productive work, the time spent
in fulfilling such special conditions is re-
garded as indispensable to the performance of
the principal duty the employee is hired to
perform. Included in this category are re-
quired medical or psychiatric examinations.
Time spent in taking such examinations is
time during which the employee’s freedom of
movement is restricted for the purpose of
servicing the employer and time during which
the employee is subject to the employer’s
direction and control. Therefore, such time
spent must be counted as hours worked under
FLSA.
See Police/Hours Worked, Wages & Hours Manual (BNA)
(Dep’t of Labor, Aug. 2, 1989).
Furthermore, Aurora has presented no case law in
support of its opinion, and it fails to cite 29 C.F.R. § 785.1
(2005), another regulation pertaining to the FLSA, which
supports a more expansive reading of § 785.43. 29 C.F.R. §
785.1 reads in part:
This part discusses the principles involved in
determining what constitutes working time. It
also seeks to apply these principles to situations
that frequently arise. It cannot include every possi-
ble situation. No inference should be drawn from the

-- 8 of 10 --

No. 04-2308 9
fact that a subject or an illustration is omitted.
(emphasis added)
The conflicting nature of the DOL opinions addressing this
issue leads us to the conclusion that Aurora’s interpretation
of § 785.43 is too rigid, and only constitutes some of the
universe of what constitutes “hours worked.” Because §
785.43 does not bar relief here, Aurora is not able to
circumvent the authority of § 785.7. In this case, Aurora
must pay Sehie for any (1) physical or mental exertion;
(2) controlled and required by the employer, and (3) pursued
necessarily and primarily for the benefit of the employer. As
we explained earlier, the mandatory counseling sessions
that Sehie attended, at the direction of Aurora, clearly
satisfies these requirements and is thus compensable under
the FLSA.
The district court also held that even if section 785.43
could be read to prevent compensation where the time an
employee spent receiving employer-required medical
treatment for a work-related injury occurs during non-
working hours, Sehie never suffered a work-related injury
on December 14, 2000. Because we decline to establish a
general rule holding that § 785.43 bars compensation
when an employee complies with a mandatory medical
treatment order on non-work time, we need not address this
argument, for it is moot in light of our analysis.
III. CONCLUSION
For the foregoing reasons, the judgment of the district
court is A FFIRMED .

-- 9 of 10 --

10 No. 04-2308
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-27-05

-- 10 of 10 --