Adams et al v. City of Manchester
Filing
136
MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the motion of Jessica Adams, Tracey Lohse, and Mark Demitroff for summary judgment is DENIED. 110 IT IS FURTHER ORDERED that a pretrial conference shall be held in this case on Thursday, May 9, 2013 at 1:30 in the afternoon. Counsel should anticipate being trained on the courtroom technology equipment immediately following the conclusion of the conference. ( Pretrial Conference set for 5/9/2013 01:30 PM in Chambers before Magistrate Judge Thomas C. Mummert III.) Signed by Magistrate Judge Thomas C. Mummert, III on April 4, 2013. (MCB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JESSICA ADAMS, TRACEY
LOHSE, and MARK DEMITROFF,
Plaintiffs,
vs.
CITY OF MANCHESTER,
Defendant.
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Case No. 4:11cv1309 TCM
MEMORANDUM AND ORDER
This matter is before the Court on the motion of the remaining plaintiffs, Jessica
Adams, Tracey Lohse, and Mark Demitroff, for summary judgment on the remaining count,
Count II, of their First Amended Complaint. Specifically, Plaintiffs argue that they have
established that there is no genuine issue of material fact about their rights under the Fair
Labor Standard Act ("FLSA") 29 U.S.C. § 201-219, to be paid overtime compensation at a
certain rate for a certain number of overtime hours worked, about the violation of the FLSA
being willful, and about their right to liquidated damages.
As the moving party, Plaintiffs "bear[] the initial responsibility of informing the
[C]ourt of the basis for the motion, and must identify those portions of the record which
[they] believe[] demonstrate the absence of a genuine issue of material fact." Gannon Int'l,
Ltd. v. Blocker, 684 F.3d 785, 792 (8th Cir. 2012) (citing Torgerson v. City of Rochester,
643 F.3d 1031, 1042 (8th Cir. 2011) (en banc)); accord Jackson v. United Parcel Serv.,
Inc., 643 F.3d 1081, 1085 (8th Cir. 2011). Rather than establish the absence of a genuine
issue of material fact, Plaintiffs establish the opposite by submitting in their reply brief
allegations concerning rate of pay and overtime hours worked that are inconsistent with those
submitted in their opening brief. The varying evidence is set forth in the tables below.
Jessica Adams
Motion
Response
Reply
Difference
Period A:
10/4/09-12/26/09
agree
agree
none
base pay/hour
$13.29
agree
agree
none
overtime pay/hour
$19.94
agree
agree
none
overtime hrs.
35.53
agree
49.53
14.0
none
.33
.33
none
overtime pay due
$701.29
$701.291
$981.05
$279.76
Period B:
12/27/09 - 1/1/11
agree
1/3/10 -
worked
overtime
compensated
4/3/10
base pay/hour
$13.42
agree
agree
none
overtime pay/hour
$20.34
$20.13
$20.13
reconciled
overtime hrs.
116.75
116.75
29.95
(86.8)
worked
1
The amount due in the "Response" column is the amount of overtime hours multiplied
by the overtime hourly rate. With the exception of the amount allegedly due Lohse for the
period from October 4, 2009, to December 26, 2009, Defendant did not admit any specific
amount was due.
-2-
overtime
none
2.75
.75
2.0
overtime pay due
$2,374.70
$2,318.76
$587.79
($1,786.91)
Period C(1):
1/2/11 - 7/23/11
agree
4/3/10 -
compensated
2/5/11
base pay/hour
$13.56
agree
agree
none
overtime pay/hour
$20.75
$20.34
$20.34
reconciled
overtime hrs.
61.2
agree
87.6
26.4
none
none
2
2
$1,269.90
$1,244.81
$1,741.10
$496.29
worked
overtime
compensated
overtime pay due
2/6/11-
Period C(2):
7/24/11
base pay/hr
$13.86
overtime pay/hr
$20.75
overtime hrs.
60.1
worked
overtime
none
compensated
overtime pay due
Total overtime due
$1,247.08
$4,346.49
$4,241.52
-3-
$1,247.08
$4,557.02
$315.50
Tracey Lohse
Motion
Response
Reply
Difference
Period A:
10/4/09-12/26/09
agree
agree
none
base pay/hour
$13.29
agree
agree
none
overtime pay/hour
$19.94
agree
agree
none
overtime hrs.
51.4
agree
agree
none
none
none
none
none
overtime pay due
$1,024.92
$1,024.92
$1,024.92
none
Period B:
12/27/09 -
agree
agree
none
worked
overtime
compensated
4/17/10
base pay/hour
$13.42
agree
agree
none
overtime pay/hour
$20.13
agree
agree
none
overtime hrs.
71.3
71.3
70.3
(1)
none
1
1
reconciled
overtime pay due
$1,435.27
$1,415.14
$1,395.01
($20.13)
Period C:
4/18/10 -
agree
4/4/10 -
worked
overtime
compensated
12/25/10
2/5/11
base pay/hour
$13.56
agree
agree
none
overtime pay/hour
$20.34
agree
agree
none
overtime hrs.
188.75
agree
212.25
23.5
worked
-4-
overtime
none
.5
none
.5
overtime pay due
$3,839.18
$3,829.01
$4,317.17
$488.16
Period D:
12/26/10 - 4/2/11
compensated
2/6/114/2/11
base pay/hr
$13.83
agree
agree
none
overtime pay/hr
$20.75
agree
agree
none
overtime hrs.
54.8
agree
36.5
18.3
none
none
none
none
overtime pay due
$1,137.10
agree
$757.38
($379.72)
Total overtime due
$7,436.47
$7,406.17
$7,494.48
$88.31
Mark Demitroff
Motion
Response
Reply
Difference
Period A:
10/4/09-12/26/09
agree
1/4/09 -
worked
overtime
compensated
1/2/10
base pay/hour
$13.29
agree
agree
none
overtime pay/hour
$19.94
agree
agree
none
overtime hrs.
23.4
agree
30
6.6
none
1
1
reconciled
worked
overtime
compensated
-5-
overtime pay due
$466.60
$446.66
$578.26
Period B:
12/27/09 - 1/1/11
agree
$111.66
1/3/10 4/3/10
base pay/hour
$13.42
agree
agree
none
overtime pay/hour
$20.34
$20.13
$20.13
reconciled
overtime hrs.
166.4
157.6
98.7
(58.9)
none
1
1
reconciled
overtime pay due
$3,384.58
$3,172.49
$1,966.70
($1,205.79)
Period C:
1/2/11 - 2/19/10
agree
4/4/10 -
worked
overtime
compensated
2/5/11
base pay/hour
$13.56
agree
agree
none
overtime pay/hour
$20.75
$20.34
$20.34
reconciled
overtime hrs.
8.8
agree
90
81.2
none
none
none
none
$182.60
$179.00
$1,830.60
$1,651.60
worked
overtime
compensated
overtime pay due
2/6/11-
Period C(2):
2/12/11
base pay/hr
$13.86
overtime pay/hr
$20.75
-6-
overtime hrs.
8.8
worked
overtime
none
compensated
overtime pay due
Total overtime due
$182.60
$4,033.78
$3,778.02
$182.60
$4,558.16
$780.14
Plaintiffs have also failed to establish the absence of a genuine issue of material fact
as to whether a two-year or three-year statute of limitations applies. "[A]ll claims brought
for violations of the FLSA must be 'commenced within two years after the cause of action
accrued,' unless the violation was 'willful,'" in which case the claim must be brought within
three years. Redman v. U.S. West Bus. Res., Inc., 53 F.3d 691, 695 (8th Cir. 1998)
(quoting 29 U.S.C. § 255(a)); accord Jarrett v. ERC Props., Inc., 211 F.3d 1078, 1082 (8th
Cir. 2000). A "willful violation" is "one where 'the employer either knew or showed reckless
disregard for the matter of whether its conduct was prohibited by the statute.'" Id. (quoting
McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988)).
Plaintiffs argue that they have established a willful violation by showing that Special
Order 9.8E was drafted without steps taken to ensure that it complied with the FLSA.
Special Order 9.8E concerns the scheduling and work hours of the personnel of the Police
Department of the City of Manchester. (See Pls.' Ex. 6, ECF No. 110-8.) Contrary to
Plaintiffs' position, the Order's creation without benefit of legal counsel does not establish
a willful violation. See Hanger v. Lake Cnty, 390 F.3d 579, 584 (8th Cir. 2004) (noting
-7-
that Supreme Court in McLaughlin, 486 U.S. at 135, rejected standard for willfulness that
turned "'on whether the employer sought legal advice concerning its pay practices'" "because
an employer's decision not to seek legal advice could result from negligence or a good-faith,
incorrect assumption about a statute's applicability").
Plaintiffs next argue that they are entitled to liquidated damages. In addition to the
amount of damages being at issue, there remains a genuine issue as to whether liquidated
damages are appropriate. "The FLSA provides for liquidated damages equal to the amount
of actual damages." Id. at 1083. "[T]he court in its discretion may award no liquidated
damages or reduced liquidated damages 'if the employer shows to the satisfaction of the court
that the act or omission giving rise to [FLSA liability] was in good faith and that he had
reasonable grounds for believing that his act or omission was not a violation of the [FLSA].'"
Id. (quoting 29 U.S.C. § 260) (second and third alterations in original). Defendant will bear
the burden of showing at trial such good faith and reasonable grounds. See Jarrett, 211 F.3d
at 1083.
-8-
Conclusion
Plaintiffs having failed to establish the absence of a genuine issue of material fact
about the amounts they are due, whether any FLSA violation was willful, and whether an
award of liquidated damages is appropriate, and, if so, the amount,
IT IS HEREBY ORDERED that the motion of Jessica Adams, Tracey Lohse, and
Mark Demitroff for summary judgment is DENIED. [Doc. 110]
IT IS FURTHER ORDERED that a pretrial conference shall be held in this case on
Thursday, May 9, 2013, at 1:30 in the afternoon. Counsel should anticipate being trained
on the courtroom technology equipment immediately following the conclusion of the
conference.
/s/Thomas C. Mummert, III
THOMAS C. MUMMERT, III
UNITED STATES MAGISTRATE JUDGE
Dated this 4th day of April, 2013.
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