Ebbs, et al v. Orleans Parish Sch
Filing
315
ORDER & REASONS that Plaintiff's 307 Motion for Reconsideration is GRANTED with respect to Mary Carter Navarre and Gwendolyn Youngblood and DENIED with respect to all other claims. Signed by Judge Eldon E. Fallon on 10/31/12. (dno, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
GERALDINE EBBS, ET AL.
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CIVIL ACTION
VERSUS
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NUMBER 04-1198
ORLEANS PARISH SCHOOL BOARD
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SECTION “L” (1)
ORDER AND REASONS
The Court has pending before it Plaintiffs’ motion for reconsideration (Rec. Doc. 307) of
certain portions of this Court’s Order and Reasons (Rec. Doc. 303) deciding four motions for
summary judgment (Rec. Docs. 235, 264, 280, 291). The Court has reviewed the briefs and the
applicable law and now issues this Order and Reasons.
I.
BACKGROUND
This collective action pursuant to the Fair Labor Standards Act (FLSA) was filed by
Geraldine Ebbs and others against the Orleans Parish School Board. All Plaintiffs were nonexempt employees of Defendant, and all allege that they worked more than 40 hours per week
without receiving the required overtime compensation.
The procedural history of this case is extensive; a brief summary follows. The Complaint
(Rec. Doc. 1) was initially filed in April 2004. After some delays caused by Hurricane Katrina,
the class was conditionally certified in July 2007. (Rec. Doc. 57). Potential plaintiffs were given
until July 30, 2009 to opt-in, and approximately 1,500 did so. The parties then began to conduct
discovery. Defendant served all plaintiffs with written discovery, including Interrogatories. The
deadline for plaintiffs to respond was originally set for March 31, 2010 (Rec. Doc. 144) and later
extended to August 27, 2010 (Rec. Doc. 206). Plaintiffs asked for a second extension, but this
Court upheld the decision of Magistrate Judge Shushan to deny that request. (Rec. Docs. 229,
301). Judge Shushan recently granted Defendant’s motion to dismiss the Plaintiffs who failed to
comply with the August 27 deadline. (Rec. Doc. 309).
Recently, the Court ruled on multiple motions for summary judgment and one motion to
dismiss certain plaintiffs. Several of these motions were unopposed, and the Court issued an
Order granting them on July 25, 2012. (Rec. Doc. 302). On August 24, 2012, the Court issued an
Order and Reasons ruling on the remaining four summary judgment motions, all of which were
partially opposed. (Rec. Doc. 303). With respect to some individuals, the Court granted summary
judgment because the employee run result reports (ERRRs) demonstrated that those individuals
had been paid overtime, and the individual plaintiffs’ responses to written discovery were vague
and unreliable compared to the ERRRs. Id. at 4-9. With respect to others, the Court granted
summary judgment because the individual plaintiffs’ responses to written discovery reflected
that they had worked no more than 40 hours per week, meaning that they did not have a claim
for uncompensated overtime under FLSA. Id. at 9-12.
II.
PRESENT MOTIONS
Plaintiffs now move for reconsideration of the first set of summary judgment motions
described above. Specifically, Plaintiffs argue that for some individuals, the ERRRs actually
show that plaintiffs are owed compensation for overtime. Additionally, Plaintiffs argue that
subsequent discovery has cast doubt on the reliability of an affidavit submitted by Defendant,
and relied upon by the Court, in deciding one of the summary judgment motions. Defendant
opposes Plaintiffs’ motion, arguing that Plaintiffs make inconsistent arguments regarding the
ERRRs, that Plaintiffs misrepresent the relevant discovery, and that the contested affidavit is not
required for the Court to consider Defendant’s submitted evidence.
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III.
LAW AND ANALYSIS
A.
Standard of Review
Motions asking a court to reconsider an order are generally analyzed under the standards
for a motion to alter or amend a judgment pursuant to Rule 59(e) or a motion for relief from a
judgment or order pursuant to Rule 60(b). See Hamilton Plaintiffs v. Williams Plaintiffs, 147
F.3d 367, 371 n.10 (5th Cir. 1998). Rule 59(e) governs when the motion is filed within 28 days
of the challenged order. See Fed. R. Civ. P. 59(e). Because Defendants’ Motion was filed within
28 days of entry of the Order and Reasons it challenges, the Court treats the Motion as one
pursuant to Rule 59(e).
A Rule 59(e) motion “is not the proper vehicle for rehashing evidence, legal theories, or
arguments that could have been offered or raised before the entry of judgment.” Templet v.
HydroChem Inc., 367 F.3d 473, 479 (5th Cir. 2004) (citing Simon v. United States, 891 F.2d
1154, 1159 (5th Cir. 1990)). Rather, Rule 59(e) serves the narrow purpose of correcting manifest
errors or law or fact, or presenting newly discovered evidence. Lavespere v. Niagra Mach. &
Tool Works, Inc., 910 F.2d 1667, 174 (5th Cir. 1990); Templet, 367 F.3d at 479 (quoting
Waltman v. Int’l Paper Co., 875 F.2d 468, 473 (5th Cir. 1989)). “‘Manifest error’ is one that ‘is
plain and indisputable, and that amounts to a complete disregard of the controlling law.’” Guy v.
Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir. 2004) (quoting Venegas-Hernandez v. Sonolux
Records, 370 F.3d 183, 195 (1st Cir. 2004)). In the Fifth Circuit, altering, amending, or
reconsidering a judgment under Rule 59(e) “is an extraordinary remedy that should be used
sparingly.” Templet, 367 F.3d at 479 (citing Clancy v. Empl’rs Health Ins. Co., 101 F. Supp. 2d
463, 465 (E.D. La. 2000)). “A Rule 59(e) motion should not be used to re-litigate prior matters
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that . . . simply have been resolved to the movant’s dissatisfaction.” Voisin v. Tetra
Technologies, Inc., 2010 WL 3943522, at *2 (E.D. La. Oct. 6, 2010). District courts have
“considerable discretion in deciding whether to grant or deny a motion to alter a judgment.”
Hale v. Townley, 45 F.3d 914, 921 (5th Cir. 1995). Yet at the same time, the Rule 59(e) standard
“favors denial of motions to alter or amend.” S. Constructors Group, Inc. v. Dynalectric Co., 2
F.3d 606, 611 (5th Cir. 1993).
B.
Analysis
Plaintiffs raise two main arguments in favor of granting their motion for reconsideration
of the Court’s Order and Reasons. First, Plaintiffs argue that “[a] careful review” of the ERRRs
submitted by Defendant actually supports Plaintiffs’ claims that they did not receive unpaid
overtime. (Pls.’ Mot., Rec. Doc. 307-1 at 4). Plaintiffs point to the ERRRs of four individual
plaintiffs, all of which contain entries labeled “Unpaid Overtime,” and argue that these entries
support a finding that these individuals are owed overtime compensation in accordance with
FLSA.
Second, Plaintiffs argue that subsequent discovery has revealed that the Court was
mistaken when it relied on the ERRRs and an accompanying affidavit submitted in support of
Defendant’s motion for summary judgment with respect to 61 Plaintiffs. (Rec. Doc. 280). That
affidavit came from Lynda McClelland, the current payroll manager for the Orleans Parish
School Board. In the Order and Reasons granting Defendant’s motion for summary judgment,
the Court noted that one paragraph of the McClelland affidavit was made upon information and
belief, but that the rest was made on personal knowledge and sufficed to verify the ERRRs. (Rec.
Doc. 303 at 7-8).
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Plaintiffs now argue, however, that a subsequent deposition of Ms. McClelland
contradicts one of the paragraphs of the affidavit that the Court relied upon in finding that it
could consider the ERRRs as evidence supporting Defendant’s summary judgment motion. In
Paragraph 6, the McClelland affidavit states that each ERRR “corresponds with the taxable
income reported to the Internal Revenue Service and the Louisiana Department of Revenue.”
(Rec. Doc. 280-62 at ¶ 6). Plaintiffs claim that part of Ms. McClelland’s deposition contradicts
this statement:
Q. To be able to have a report that you could use in verifying the
accuracy of payroll or a paycheck, this is lacking some information
for you, isn’t it?
A. Yes.
(Rec. Doc. 307-2 at 2). According to Plaintiffs, this constitutes an admission by Ms. McClelland
that “she could not verify the accuracy of the associated paycheck viewing its report” and
renders her affidavit deficient. (Pl.’s Mot., Rec. Doc. 307-1 at 5).
Defendant puts forth multiple arguments in opposition to Plaintiffs’ motion. First,
Defendant argues that Plaintiffs make inconsistent arguments regarding the ERRRs: with respect
to the first summary judgment motion described above, Plaintiffs argue that the Court should
credit the ERRRs, and with respect to the second summary judgment motion, Plaintiffs argue
that the Court should discredit them. In contrast, Defendant argues in favor of a consistent
position that the ERRRs are the most reliable evidence available to all parties in this case.
Second, Defendant addresses the four individuals described above. With respect to two of
them, Defendant argues that the Court has already considered the relevant evidence. With
respect to the other two, Defendant argues that their claims are de minimis, because they were
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already paid straight time for the overtime hours that they worked, and as a result, their claims
are for approximately $50 and $30, respectively.
Third, Defendant argues that Plaintiffs misrepresent Ms. McClelland’s deposition
testimony. According to Defendant, during the quoted portion of the deposition, Ms. McClelland
“was given a copy of an Employee Run Result Report and questioned as to whether she would
need additional information to verify the contents of a payroll or paycheck.” (Def.’s Opp., Rec.
Doc. 312 at 6). In contrast, Ms. McClelland’s affidavit stated that she had compared the ERRRs
to the relevant tax records and found them to be accurate. In other words, Defendant argues that
the quoted deposition testimony relates to “verification of the amount paid on an individual
paycheck,” whereas the ERRRs relates to verification of the amounts paid to individual plaintiffs
overall. Id. at 7.
Fourth, Defendant argues that the ERRRs are admissible under the business records
hearsay exception contained in Federal Rule of Evidence 803(6). Defendant argues that the
ERRRs meet all the requirements of FRE 803(6):
(A) [T]he record was made at or near the time by—or from
information transmitted by—someone with knowledge;
(B) the record was kept in the course of a regularly conducted
activity of a business, organization, occupation, or calling, whether
or not for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the
custodian or another qualified witness, or by a certification that
complies with Rule 902(11) or (12) or with a statute permitting
certification; and
(E) neither the source of information nor the method or
circumstances of preparation indicate a lack of trustworthiness.
Furthermore, Defendant submits a supplemental affidavit from Ms. McClelland in order to
ensure that the ERRRs qualify for that exception. (Ex. A to Def.’s Opp., Rec. Doc. 312-1).
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The Court agrees that the ERRRs are admissible regardless of the subsequent deposition
testimony of Ms. McClelland. Plaintiffs themselves submit ERRRs without any external
verification in support of other motions for summary judgment, including one of the motions at
issue in this Order. Furthermore, the ERRRs satisfy the requirements laid out in FRE 803(6).
Therefore, the Court declines to reconsider its ruling on the motion for summary judgment with
respect to 61 plaintiffs (Rec. Doc. 280) and finds it appropriate to continue to rely on the ERRRs
in the motion for summary judgment with respect to 60 plaintiffs (Rec. Doc. 235).
Of the four individual plaintiffs who challenge the ruling on that second motion, the
Court finds reconsideration is warranted in two cases. The Court already considered the evidence
cited by both parties in the cases of Gregory Smith and Clarence Williams and sees no reason to
disturb that holding now. However, with respect to Mary Carter Navarre and Gwendolyn
Youngblood, Defendant appears to concede that the ERRRs indicate some unpaid overtime, and
simply argues that any remaining claim is de minimis because Ms. Navarre and Ms. Youngblood
were undisputedly paid straight time for any overtime hours that they worked.
Dismissal of a de minimis claim in a FLSA case may be appropriate “[w]hen the matter in
issue concerns only a few seconds or minutes of work beyond the scheduled working hours.”
Anderson v. Mt. Clements Pottery Co., 328 U.S. 680, 692 (1946), superseded by statute, Portalto-Portal Act, 61 Stat. 84 (codified as amended at 29 U.S.C. §§ 251-262), as recognized in IBP,
Inc. v. Alvarez, 546 U.S. 21, 26 (2005). That is not the case here. Both Ms. Navarre and Ms.
Youngblood claim multiple hours of unpaid overtime work; the fact that they may be owed
relatively small amounts of money for those hours does not justify the complete dismissal of
their claims. Accordingly, the Court will reconsider and reverse its earlier dismissal of Ms.
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Navarre’s and Ms. Youngblood’s claims.
IV.
CONCLUSION
For the foregoing reasons, IT IS ORDERED that Plaintiff’s motion for reconsideration
(Rec. Doc. 307) is GRANTED with respect to Mary Carter Navarre and Gwendolyn Youngblood
and DENIED with respect to all other claims.
New Orleans, Louisiana, this 31st day of October, 2012.
UNITED STATES DISTRICT JUDGE
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