2004 | Cited 0 times | D. Massachusetts | April 8, 2004

1 With the parties' consent, on April 22, 2002, this case wasreassigned to the undersigned for all purposes, including trial and theentry of judgment, pursuant to 28 U.S.C. § 636(c).


On March 31, 2003, the sole outstanding liability issue in thiscase was decided. See Harris v. City of Boston, 253 F. Supp.2d 136 (D.Mass., 2003).2 At this juncture, only three questions with respect todamages remain extant, to wit, determination of the proper work periodfor calculating unpaid overtime compensation, resolution of whetherliquidated damages should be awarded, and a decision regarding theapplicable statute of limitations.

Contending that no genuine issue of material fact exists relativeto the damages questions, the parties have filed cross-motions forsummary judgment. Specifically, the plaintiffs have filed a motion forsummary judgment (#47), a memorandum of law incorporating a statement ofundisputed facts and multiple exhibits (#48) and a LocalRule 56.1 statement (#49). In response the defendants filed a cross-motion forsummary judgment on damages issues, a memorandum in opposition to theplaintiffs' dispositive motion and in support of their cross-motion forsummary judgment (#51) along with a Local Rule 56.1 statement (#52) andtwo affidavits (#53, 54). The plaintiffs have submitted a reply brief (#55). The record on the cross-motions is nowclosed and they stand ready for decision.

II. The Summary Judgment Standard

Summary judgment purports "to pierce the pleadings and to assessthe proof in order to see whether there is a genuine need for trial."Podiatrist Ass'n, Inc. v. La Cruz Azul de Puerto Rico, Inc., 332 F.3d 6,12 (1st Cir., 2003) (citing Garside v. Osco. Drug, Inc., 895 F.2d 46, 50(1st Cir., 1990) (quoting Fed.R.Civ.P. 56 Advisory Committee's note)).The party moving for summary judgment bears the initial burden ofasserting the absence of a genuine issue of material fact and"support[ing] that assertion by affidavits, admissions, or othermaterials of evidentiary quality." Mulvihill v. Top-Flite Golf, Co.,335 F.3d 16, 19 (1st Cir., 2003). After the moving party has met itsburden, "the burden shifts to the summary judgment target [thenon-moving party] to demonstrate that a trial-worthy issue exists."Id. (citing Suarez v. Pueblo Int'l, Inc., 229 F.3d 49, 53 (1stCir., 2000)).

When considering whether to grant summary judgment, the Court mustdetermine whether: . . . the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is a genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.Fed.R.Civ.P. 56(c).

In making this assessment, the Court must "scrutinize the record inthe light most flattering to the party opposing the motion, indulging allreasonable inferences in that party's favor." Mulvihill, 335 F.3d at 19(citing Morris v. Gov't Dev. Bank, 27 F.3d 746, 748 (1st Cir., 1994));see also Podiatrist Ass'n, Inc., 332 F.3d at 13; Pure Distributors, Inc.v. Baker, 285 F.3d 150, 152 (1st Cir., 2002); New England RegionalCouncil of Carpenters v. Kinton, 284 F.3d 9, 19 (1st Cir., 2002)(citing Dynamic Image Techns., Inc. v. United States, 221 F.3d 34, 39(1th cir., 2000)); Kearney v. Town of Wareham, 316 F.3d 18, 22 (1dr., 2002).

Despite this "notoriously liberal" standard, Mulvihill, 335 F.3d at19, summary judgment cannot be construed as "a hollow threat." Kearney,316 F.3d at 22. A factual dispute which is neither "genuine" nor"material" will not survive a motion for summary judgment. Anderson v.Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Furthermore, a genuineissue of material fact cannot merely rest upon "spongy rhetoric" butrather requires substantive proof. Mulvihill, 335 F.3d at 19 (citingMesnick v. Gen. Elec. Co., 950 F.2d 816, 822 (1 dr., 1991) (explaining that "[g]enuine issues of material fact are not thestuff of an opposing party's dreams)). Thus, in deciding whether afactual dispute is "genuine," the Court must determine whether theevidence is such that a reasonable jury could return a verdict for thenonmoving party. Anderson, 477 U.S. at 248; Kearney, 316 F.3d at 22(citing United States v. One Parcel of Real Pro. (Great Harbor Neck, NewShoreham, R.I.), 960 F.2d 200, 204 (1st Cir., 1992); Suarez, 229 F.3d at53 (citing McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1stCir., 1995). In circumstances where submitting the issue in dispute tothe jury amounts to "nothing more than an invitation to speculate,"summary judgment is appropriate. Feliciano de la Cruz v. El ConquistadorResort and Country Club, 218 F.3d 1, 9 (quoting Lattimorev. PolaroidCorp., 99 F.3d 456, 467-68 (1 dr., 1996)). In weighing whether a factualdispute is "material," the Court must examine the substantive law ofthe case, because "only disputes over the facts that might affect theoutcome of the suit under governing law will properly preclude the entryof summary judgment." Anderson, 477 U.S. at 248; Kearney, 316 F.3dat 22.

The focus at the summary judgment phase "should be on the ultimateissue: whether, viewing the aggregate package of proof offered byplaintiff and taking all inferences in the plaintiff's favor, the plaintiff hasraised a genuine issue of fact." Rivas Rosado v. Radio Shack, Inc.,312 F.3d 532 (1st Cir., 2002) (citing Dominguez-Cruz v. Suttle Caribe, Inc.,202 F.3d 424, 430-31 (1st Cir., 2000)); see also Leahy v. Raytheon, Co.,315 F.3d 11 (l dr., 2002); Suarez, 229 F.3d at 53. The party objecting tosummary judgment may not merely rest upon the statements put forth in itsown pleadings. See Gillen v. Fallon Ambulance Service, Inc., 283 F.3d 11,26 (1st Cir., 2002) (citing Colantuoni v. Alfred Calcagni & Sons,Inc., 44 F.3d 1, 4-5 (1 dr., 1994) (a party objecting to summary judgmentfails to put forth a genuine issue of material fact merely by filing anaffidavit contradicting unambiguous answers contained in a priordeposition)). Instead, Rule 56(c): mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which the party will bear the burden of proof at trial.Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). III. Discussion

A. Overtime Wages

The Fair Labor Standards Act ("FLSA") "establishe[s] acomprehensive remedial scheme requiring a minimum wage and limiting themaximum number of hours worked, absent payment of an overtime wage forall hours worked in excess of the specified maximum number." Lamon v.City of Shawnee, Kan., 972 F.2d 1145, 1149 (10 dr., 1992), cert. denied,507 U.S. 972 (1993). Section 207(a) of the FLSA is the provision whichmandates the payment of an overtime wage: Except as otherwise provided in this section, no employer shall employ any of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.Title 29 U.S.C. § 207(a)(1) (emphasis added).

The FLSA does, however, grant an exemption to public agenciesengaged in fire protection or police enforcement activities, providingthat: No public agency shall be deemed to have violated subsection (a) with respect to employment of any employee in . . . law enforcement activities if(1) in a work period of 28 consecutive days the employee receives for tours of duty which in the aggregate exceed the lesser of (A) 216 hours, or (B) the average number of hours in tours of duty of employees engaged in such activities in work periods of 28 consecutive days in calendar year 1975; or (2) in the case of such an employee to whom a work period of at least 7 but less than 28 days applies, in his work period the employee receives for tours of duty which in the aggregate exceed a number of hours which bears the same ratio to the number of consecutive days in his work period as 216 bears to 28 days, compensation at a rate not less than one and one-half times the regular rate at which he is employed.Title 29 U.S.C § 207(k).

The Code of Federal Regulations ("C.F.R.") issued by the Departmentof Labor ("DOL") and adopted pursuant to the FLSA further clarifies themaximum hours standards for work periods under § 207(k). The DOLcreated a table which provides the maximum hours that fire or policepersonnel may work during a work period before overtime compensation mustbe paid by the employer. See 29 C.F.R. § 553.230. The work periodsrange from seven to twenty-eight days. For a work period of seven days,law enforcement personnel would not be eligible for overtime until theyexceeded forty-three hours. See 29 C.F.R. § 553.230. For a workperiod of twenty-eight days, the maximum hours before overtimecompensation is due is one hundred and seventy-one. See29 C.F.R. § 553.230. Overall, as explained by the First Circuit: The effect of the § 207(k) partial exemption is to soften the impact of the FLSA's overtime provisions on public employers in two ways: it raises the average number of hours the employer can require law enforcement and fire protection personnel to work without triggering the overtime requirement, and it accommodates the inherently unpredictable nature of firefighting and police work by permitting public employers to adopt work periods longer than one week. See Wethington v. City of Montgomery, 935 F.2d 222, 224 (11th Cir. 1991); Maldonado v. Administracion de Correccion, 1993 WL 269650, at *1 (D.P.R. Jul.1, 1993). The longer the work period, the more likely it is that days of calm will offset the inevitable emergencies, resulting in decreased overtime liability.O'Brien v. Town of Agawam, 350 F.3d 279, 290 (1st Cir., 2003).

The issue in the present case is whether the default maximum hours,forty, prescribed in § 207(a) applies, or if the City is entitled tothe § 207(k) exemption maximum hours, that being forty-three. Theplaintiffs contend that because the City did not affirmatively adopt aqualifying work period under § 207(k), it is precluded from claimingthe exemption. The defendant counters that the § 207(k) exemption isthe default for law enforcement personnel and should be applied whencalculating damages for unpaid overtime. Each side cites a differentFirst Circuit decision in support of their respective positions.

In 1992, the First Circuit held that unpaid overtime compensationshould be calculated using the normal working hours of firepersonnel3 as set forth in § 207(k) rather than an ordinaryemployee's working hours under § 207(a). See Martin v. Coventry FireDistrict, 981 F.2d 1358, 1360 (1st Cir., 1992). In 2003, the FirstCircuit in O'Brien v. Town of Agawam held that the Town of Agawam("Town") was not entitled to the § 207(k) exemption because it hadnot adopted or established a regularly recurring work period for itspolice officers. See O'Brien, 350 F.3d at 291-92.

Although perhaps facially at odds, these two cases can bereconciled. At the district court level in Coventry, the partiesstipulated that "[t]he Defendant alleges that it established a 27 daywork period for its firefighters. The chart which encompasses29 C.F.R. § 553.230 sets forth the maximum hours a firefighter may work in a27 day period prior to receiving overtime compensation at 204 hours."(Affidavit #85, Stipulation Of Facts 15) In other words, the FireDistrict had, at the very least, made an effort to adopt a qualified workperiod under § 207(k). Moreover, as framed by the District Judge inhis oral decision,

And that threshold legal determination, seems to me, is whether weare dealing with the provisions of 29 U.S.C. § 207(A) or 207(K).

Now, as I understand the Department of Labor's position, if the Coventry Fire Department did not compensate employees who worked more than two hundred four hours during the alleged twenty-seven day pay period, then they were not entitled to the exemption provided by Subsection K and the measure of their liability should be all hours worked in excess of forty hours per week under Subsection A. On the other hand, the fire district has taken the position that even if they should have and did not compensate employees at the rate of time and a half for hours worked in excess of the two hundred four hours, that their liability would be to pay those employees only for hours worked in excess of two hundred four hours per twenty-seven day work period. Affidavit #85, Transcript at B-6.

Thus, the issue to be determined was not whether the fire districthad adopted a qualifying work period under § 207(k), a fact whichappears to have been assumed4, but rather whether by failing to payovertime in accordance with § 207(k), the fire district in effectforfeited the benefit of the exemption and should have to pay overtimepursuant to the more generous (to the firefighters) § 207(a).

The DOL's position in Coventry was that it did not matter whetheror not the employer had adopted a qualifying work period; the fact thatthe employer did not pay according to such a period automaticallyrequired compensation under § 207(a).5 The First Circuit was nomore persuaded by the argument than was the district court See Coventry,981 F.2d at 1360. The Court held that the intent of the FLSA was not topunish an employer by making them pay more than the overtime that wasowed. Coventry, 981 F.2d at 1360. Indeed, the Court noted that in caseswhere the employer had acted in good faith, only overtime was to bepaid, while in cases where the employer had acted in bad faith,liquidated damages could be assessed, thus doubling the damages incurredby the employer. Coventry, 981 F.2d at 1360. There was no need or intentin the statute further to punish an employer by "assessing an especiallyheavy penalty where there is no reason to make the penalty especiallysevere." Coventry, 981 F.2d at 1360. Where the fire district already hada qualifying work period which set the expectation of overtime at acertain threshold, by attempting to force it to default to a lowerthreshold, the DOL was seeking a de facto increased penalty.

The First Circuit observed that no other court had ever interpretedthe FLSA in the manner suggested by the DOL. See Coventry, 981 F.2d at1361 citing Craven v. City of Minot 730 F. Supp. 1511 (D.N.D., 1989)andJacksonville Professional Fire Fighters Association v. City ofJacksonville, 685 F. Supp. 513 (E.D.N.C., 1987). While these courts donot support the ultimate position of the DOL, they do add credence to theposition that an employer must adopt a qualifying work period in order tocome under the § 207(k) exemption. Craven, 730 F. Supp. at 1513(upon Congress including public employers under the FLSA in May 1985, theCity adopted a twenty-seven day work period and therefore the plaintiffswere entitled to overtime pay over two hundred four hours in atwenty-seven day work period as indicated in 29 C.F.R. § 553.230); Jacksonville,685 F. Supp. at 517 ("In accordance with the provision [§ 207(k)], . . .the public agency could elect to take advantage of subsection (k) for apartial overtime exemption").

This interpretation of Coventry finds support in a decision fromthe United States District Court for the District of Puerto Rico renderedshortly after Coventry was decided. The Court distinguished the holdingin Coventry by noting that the issue in the Maldonado case "is notwhether the defendant violated the maximum hours provisions of Section7(k), but whether it properly availed itself of the Section 7(k)exemption." Maldonado v. Administracion De Correccion, 1993 WL 269650, *2(D. P. R., 1993). The Court found that a qualifying work period must be"an established and regularly recurring period of work between seven andtwenty-eight days chosen by the employer to calculate overtime wages."Maldonado at *1 (citing 29 C.F.R. § 553.224(a)). "If it is notchosen, the standard provision of Section 7(a) of the FLSA are (sic)applied." Maldonado at *3.

The United States District Court for the District of Maine offereda differing view of the Coventry decision. In Mills v. State of Maine,the district court read the Coventry decision to mean that whenever apublic employer fails to pay overtime to fire and law enforcement personnel, the public employer "may stillcalculate the overtime owed its employees in accordance with the overtimedefinition of subsection (k)." Mills v. State of Maine, 853 F. Supp. 551,552 (D. Me., 1994). I am not persuaded that this view of Coventry iscorrect.

The Agawam Court clearly answered the precise question addressed inMaldonado and that is raised in this case. "The § 207(k) exemptionapplies, however, only if the employees are engaged in . . . `lawenforcement activities' within the meaning of § 207(k), and only ifthe employer has adopted a qualifying work period." Agawam, 350 F.3d at290. Under facts similar to those in the present case, the Courtidentified the sole issue to be whether a work period had been adopted bythe Town. See Agawam, 350 F.3d at 291. The Court found that the Town hadnot established a qualifying work period. See Agawam, 350 F.3d at 291. Asin the instant case, the Town employed its officers on a repeatingsix-day cycle of four days on and two days off, a sequence which theFirst Circuit found did not constitute a § 207(k) work period. SeeAgawam, 350 F.3d at 291. Further, the Town provided no evidence to showthat it had adopted a qualifying work period. See Agawam, 350 F.3d at291.

While the Court required that a work period be established, to doso is not a "high hurdle." Agawam, 350 F.3d at 291 n. 21. The work period can beany recurring period between seven and twenty-eight days in length andneed not coincide with the pay periods of the officers.6 See Agawam,350 F.3d at 291 n. 21. The work period does not have to reflect theactual practices between the Town and the officers; as long as aqualifying work period is announced, the employer can choose to pay itsemployees more generously. See Agawam, 350 F.3d at 291 n. 21. However, ifthe employer fails to announce the qualifying work period, the ordinarywork period and overtime provisions of § 207(a) apply. See Agawam,350 F.3d at 291 n. 21.

The decision in Agawam is supported by cases in various otherCircuits. The Seventh, Tenth, and Eleventh Circuits each have held that apublic employer must adopt a qualifying work period under § 207(k)in order to benefit from its higher overtime thresholds. See Barefield v.Village of Winnetka, 81 F.3d 704, 709 (7 Cir., 1996) (determined that§ 207(k) "permits public agencies to establish a `work period' thatlasts from seven to 28 days" which would allow the Village to payovertime due after forty-three hours in seven days versus after fortyhours in seven days); Lamon v. City of Shawnee, 972 F.2d 1145, 1151 (10 Cir., 1992)(finding that even though the City had never applied the work period thatit had previously established, it qualified for the § 207(k)exemption); Wethington v. City of Montogmery, 935 F.2d 222, 224 (11 Cir.1991) (the § 207(k) system is only an option for public employers offire and law enforcement personnel); Birdwell v. City of Gadsen, 970 F.2d 802,804 (11 Cir., 1992) ("If the city had adopted a work period betweenat least 7 consecutive days and 28, then the city is entitled to requireits employees to work more hours without overtime pay").

Applying the law to the facts at hand leads to the conclusion thatthe City did not adopt a qualifying work period and therefore mustcalculate back overtime pay under the forty-hour threshold of §207(a).

The City's lack of an adoption is demonstrable. First, in Stage 1of the proceedings the parties stipulated that "the City of Boston hasnot effectively adopted a partial public safety exemption as set forth in29 U.S.C. § 201 et seq." (#49 ¶ 2). Moreover, as previouslynoted, the City's Auditor has confirmed that the City did affirmativelyadopt a qualifying work plan on July 6, 2002, outside the relevant datesof this lawsuit. (#54 ¶ 2) Lastly, this Court found during theliability phase of the proceeding that "[t]he parties have stipulated forpurposes of the FLSA only that as of the dates at issue . . . the City of Boston hasnot effectively adopted a partial public safety exemption as set forth in29 U.S.C. § 207(K). This stipulation renders the latter regulationinapplicable to this matter." Harris v. City of Boston, 253 F. Supp. 136,143 n. 11 (D. Mass., 2003).

There is one wrinkle in this case. In their Memorandum (#48), theplaintiffs state some of the Detectives in the union work a seven dayschedule of five days on and two days off. This work period could qualifyunder § 207(k). However, the City cannot be entitled to the partialexemption because it admittedly did not effectively adopt a qualifyingwork period. The standard for adoption of a qualifying work period islow; the City need only have announced that it had a work period betweenseven and twenty-eight days irrespective of whether the actual duty cycleor pay periods of the officers in question actually coincided with thework period. See Agawam, 350 F.3d at 291 n. 21. The City does not claimto have taken this minimal step, or indeed any bona fide steps to havecreated such a qualifying work period. In these circumstances, the Citycannot take advantage of the § 207(k) exemption even for detectivesworking five days on and two days off.

B. Liquidated Damages According to the FSLA, "[a]ny employer who violates the provisionsof . . . section 207 of this title shall be liable to the employee oremployees affected in the amount of their unpaid minimum wages, or theirunpaid overtime compensation, as the case may be, and in an additionalequal amount as liquidated damages." Title 29 U.S.C. § 216(b). Theimpact of this provision may tempered under certain circumstances: In any action commenced prior to or on or after May 14, 1947 to recover unpaid minimum wages, unpaid overtime compensation, or liquidated damages, under the Fair Labor Standards Act of 1938, as amended [29 U.S.C.A. § 201 et seq.], if the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of the Fair Labor Standards Act of 1938, as amended, the court may, in its sound discretion, award no liquidated damages or award any amount thereof not to exceed the amount specified in section 216 of this title.Title 29 U.S.C. § 260.

The City argues that the liquidated damages award should becalculated on the basis of the forty-three hour work week in §207(k)7 because it believed in good faith during the relevant timeperiod that under Coventry, the default for police officers wasforty-three and not forty hours. The Court is not persuaded by thiscontention.

What is perfectly clear in this case is that the City violated theFLSA with respect to the plaintiffs' overtime pay, and that it did sowillfully. That the defendant may have thought that the damages it wouldhave to pay would be calculated in a manner more favorable to it simplyis not a reason to exercise my discretion to veer from the general rulethat liquidated damages are awarded in an equal amount to overtimecompensation.

C. Limitations Period

In relevant part, 29 U.S.C. § 255 provides: Any action commenced on or after May 14, 1947, to enforce any cause of action for unpaid minimum wages, unpaid overtime compensation, or liquidated damages, under the Fair Labor Standards Act of 1938, as amended [29 U.S.C.A. § 201 et seq.]. . . (a) if the cause of action accrues on or after May 14, 1947-may be commenced within two years after the cause of action accrued, and every such action shall be forever barred unless commenced within two years after the cause of action accrued, except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued.Title 29 U.S.C. § 255(a).

The Supreme Court has interpreted the term "willful" as used inthis statute to mean "that the employer either knew or showed recklessdisregard for the matter of whether its conduct was prohibited by thestatute." McLaughlin v. Richland Shoe Company, 486 U.S. 128, 133 (1988).See also Reich v. Newspapers of New England, Inc., 44 F.3d 1060,1079-80(1st Cir., 1995).

The plaintiffs have proffered a plethora of undisputed evidence toestablish that the City's violation of the FLSA in this case was willful.See, e.g., #48 ¶¶ 5-13. Indeed, at the oral argument on these motions,counsel for the defendant conceded that the three year statute oflimitations is applicable with the statute running back from the timeeach plaintiff submitted his/her written consent to opt into this action.With the plaintiffs' agreement at the hearing that the defendant'sproposed application of the statute is appropriate, there is no issue forthe Court to decide. IV. Conclusion and Order

For the reasons stated it is ORDERED that the Motion For SummaryJudgment On Damages (#47) be, and the same hereby is, ALLOWED. It isFURTHER ORDERED that the Cross-Motion For Summary Judgement On Damages(#50) be, and the same hereby is, DENIED.

Counsel shall agree on a form of judgment to be entered and forwardthe same to the

1. Familiarity with the facts of this case is presumed, or thereader is directed to the published opinion wherein they are detailed atlength.

2. While Coventry discusses the overtime compensation forfirefighters, for present purposes there is no difference betweenfirefighters and law enforcement officers other than the maximumallowable hours in a work period.

3. In its brief on appeal, the DOL stated in a footnote that"[i]n finding Section 7(k) applicable, the court assumed that Coventryestablished a twenty-seven day work period . . . The court was wrongboth in stating that the length of the work period established is of noconsequence and in implicitly accepting that the twenty-seven day workperiod was established here . . . Nevertheless, Coventry's failure toestablish a work period is subsumed under its failure to have paid anyrequired overtime whatsoever under Section 7(k)."

4. See Department of Labor, Wage and Hour Division, OpinionLetter, January 13, 1994, WL1004749. The DOL continues to take theposition that "an employer is not relieved from s7(a) overtimecompensation unless s7(k) has been claimed and affected employees haveactually been paid in accordance with its provisions." Id.

5. In her affidavit Sally Glora, the. City Auditor, states interalia that "[p]laintiffs' pay period is, and at all relevant times hasbeen, a seven-day period." (#54 ¶ 3) As noted, however, a work periodand a pay period are not necessarily the same.

6. The City advocates calculation under the forty-three hourwork week irrespective of whether overtime is determined under §207(a) or § 207(k).

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