Polly Ann Powell, Wife, Thomas C. Powell, Husband v. Tucson Air Museum Foundation of Pima County, a Non-Profit Arizona Corporation

Polly Ann Powell (“Powell”) and her husband appeal from the district court’s grant of summary judgment in their action seeking back pay allegedly due her under the Fair Labor Standards Act (“FLSA”). The district court found that Powell’s former employer, the Tucson Air Museum (“Museum”) was not subject to the minimum-wage and overtime requirements of the Act. We affirm.

Powell was employed by the Museum as an after-hours security guard from January 15, 1979, to February 2, 1983. Powell moved her personal mobile home onto the grounds of the Museum so that she could provide after-hours security services on a regular basis. Powell’s “duty day” consist *1311 ed of three two-hour patrols of the Museum grounds between sundown and sunrise; she was on duty every other day.

Powell resigned her position on February 2, 1983, after disputes arose between her and the Museum. She filed suit in state court in August 1983 on behalf of her marital community to recover unpaid minimum wages and overtime claimed to be mandated by the FLSA. The Museum removed the action to United States District Court.

The Museum moved for summary judgment on the ground that the Museum was not subject to coverage…

dissenting:

I respectfully dissent. Neither the plain language of the statute nor the case law provides adequate support for the result reached by the majority. Construing the FLSA broadly in accordance with Supreme Court directives, I would hold that the FLSA applies to the Tucson Air Museum (“Museum”) because it is an “enterprise” which “is an activity of .a public agency” under 29 U.S.C. § 203 (s)(6).

The FLSA is a remedial statute which protects employees engaged in interstate commerce by guaranteeing them such things as a fair minimum wage and overtime pay. See 29 U.S.C. § 206 (a). This Circuit has accordingly given a liberal in *1313 terpretation to FLSA sections. See, e.g., Bonnette v. California Health & Welfare Agency, 704 F.2d 1465, 1469 (9th Cir.1983) (adopting “expansive interpretation” of term “employer” in order to effectuate FLSA’s broad remedial purposes) (citing Real v. Driscoll Strawberry Associates, Inc., 603 F.2d 748, 754 (9th Cir.1979)). As the Supreme Court recently stated, “[t]he Court has consistently construed the [FLSA] ‘liberally to apply to the furthest reaches consistent with congressional direction’ ... recognizing that broad coverage is essential”…

771 F.2d 1309 27 Wage & Hour Cas. (BN 569, 103 Lab.Cas. P 34,701 Polly Ann POWELL, Wife, Thomas C. Powell, Husband, Plaintiffs-Appellants, v. TUCSON AIR MUSEUM FOUNDATION OF PIMA COUNTY, a non-profit Arizona corporation, Defendant-Appellee. No. 84-2137. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 13, 1985. Decided Sept. 18, 1985. William C. Mach, Tucson, Ariz., for plaintiffs-appellants. Max C. Richards, Jackson G. Gallup, Max C. Richards, P.C., Tucson, Ariz., for defendant-appellee. Appeal from the United States District Court for the District of Arizona. Before POOLE and NELSON, Circuit Judges, and McGOVERN, * District Judge. POOLE, Circuit Judge: 1 Polly Ann Powell ("Powell") and her husband appeal from the district court's grant of summary judgment in their action seeking back pay allegedly due her under the Fair Labor Standards Act ("FLSA"). The district court found that Powell's former employer, the Tucson Air Museum ("Museum") was not subject to the minimum-wage and overtime requirements of the Act. We affirm. 2 Powell was employed by the Museum as an after-hours security guard from January 15, 1979, to February 2, 1983. Powell moved her…