Waymire v. Miami County Sheriff's Office

Filing 70

DECISION, ORDER, AND ENTRY: (1) DENYING PLAINTIFFS SECOND MOTION TO AMEND AND/OR CORRECT THE CASE CAPTION (DOC. 53 ); (2) GRANTING IN PART AND DENYING IN PART PLAINTIFFS MOTION IN LIMINE (DOC. 54 ); (3) GRANTING IN LIMITED PART AND OTHERWISE DENYIN G DEFENDANTS MOTION IN LIMINE TO EXCLUDE THE DEPOSITION OF SHERIFF COX (DOC. 56 ); AND (4) DENYING DEFENDANTS MOTION IN LIMINE REGARDING EVIDENCE OF PLAINTIFFS ENTITLEMENT TO OVERTIME BASED UPON A 40 HOUR WORK WEEK (DOC. 57 ); Signed by Magistrate Judge Michael J. Newman on 9/29/17. (pb)

Case: 3:15-cv-00159-MJN Doc #: 70 Filed: 09/29/17 Page: 1 of 9 PAGEID #: 1841

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
TINA WAYMIRE,
Plaintiff,

Case No. 3:15-cv-159

vs.
MIAMI COUNTY SHERIFF’S OFFICE,

Magistrate Judge Michael J. Newman
(Consent Case)

Defendant.
______________________________________________________________________________
DECISION, ORDER, AND ENTRY: (1) DENYING PLAINTIFF’S SECOND MOTION
TO AMEND AND/OR CORRECT THE CASE CAPTION (DOC. 53); (2) GRANTING IN
PART AND DENYING IN PART PLAINTIFF’S MOTION IN LIMINE (DOC. 54); (3)
GRANTING IN LIMITED PART AND OTHERWISE DENYING DEFENDANT’S
MOTION IN LIMINE TO EXCLUDE THE DEPOSITION OF SHERIFF COX (DOC.
56); AND (4) DENYING DEFENDANT’S MOTION IN LIMINE REGARDING
EVIDENCE OF PLAINTIFF’S ENTITLEMENT TO OVERTIME BASED UPON A 40
HOUR WORK WEEK (DOC. 57);
______________________________________________________________________________
This civil case is before the Court on a number of pretrial motions, namely: (1) Plaintiff’s
second motion for leave to amend the case caption (doc. 53); (2) Plaintiff’s motion in limine
(doc. 54) seeking to exclude evidence of employment discipline, Plaintiff’s termination, and
subsequent charges and a grievance filed against Defendant alleging discrimination; (3)
Defendant’s motion in limine to exclude the deposition testimony of Sheriff Charles Cox (doc.
56); and (4) Defendant’s motion in limine to exclude evidence and argument regarding Plaintiff’s
alleged entitlement to overtime compensation for working in excess of 40 hours per week (doc.
57).1 The parties filed memoranda in opposition. Docs. 62, 63, 64, 65.
During the final pretrial conference held on September 11, 2017, the parties declined the
opportunity to have oral argument on these pretrial motions and requested that the Court proceed
1

Defendant has also filed a motion in limine to exclude canines from the courtroom. Doc. 67.
Because that motion is not yet ripe for decision, that motion will be determined by separate order.

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on the parties’ written submissions. The Court has carefully considered all of the foregoing, and
the parties’ pretrial motions are ripe for decision.
A.

Background

The undersigned, in the decision on summary judgment, previously set forth the nature of
the dispute presented in this case. Waymire v. Miami Cty. Sheriff’s Office, No. 3:15-CV-159,
2017 WL 1163875, at *1 (S.D. Ohio Mar. 29, 2017). Plaintiff served as a member of the Miami
County Sheriff’s Office K-9 Unit from 1995 until 2014. Id. She was charged with caring for,
maintaining, and housing K-9 Officer Nero (“Nero”) seven days a week starting in 2004. Id.
Defendant required Plaintiff to ensure that Nero was nourished, in good health and ready and
available for service at a moment’s notice. Id.
Plaintiff initiated this case on May 1, 2015 alleging that Defendant failed to pay her
overtime for off-duty care of Nero in violation of the Fair Labor Standards Act (“FLSA”). Doc.
1. Plaintiff claims unpaid overtime from May 1, 2012 through her last day as a K-9 Deputy on
April 20, 2014, with the exception of when she was on injury leave with full compensation from
September 11, 2013 through January 6, 2014. Id.
B.

Plaintiff’s Motion for Leave to Correct the Case Caption

Plaintiff seeks leave to correct the case caption to substitute the Board of County
Commissioners of Miami County, Ohio (“County Commissioners”) as the party Defendant
instead of the current named Defendant, the Miami County Sheriff’s Office. Doc. 53. Notably,
Plaintiff previously sought leave to amend the case caption to name Miami County, Ohio as the
Defendant (doc. 21) instead of the Sheriff’s Office, which the Court denied (doc. 28). In denying
Plaintiff’s previous motion, the undersigned noted that, not only is “a sheriff’s department . . .
not a legal entity capable of being sued” for FLSA claims, but Ohio counties are also not sui
juris for purposes of claims under the FLSA. Waymire v. Miami Cty. Sheriff's Office, No. 3:15-

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CV-159, 2016 WL 6995456, at *1 (S.D. Ohio June 22, 2016) (citations omitted).2 While the
Miami County Sheriff’s Office is not sui juris, the Court previously held that Defendant’s
affirmative defense in this regard has been waived. Id.
The Court previously concluded that, in light of Defendant’s waiver of its affirmative
defense in this regard, an amendment to name the proper party was not required. Waymire, 2016
WL 6995456, at *1.

Plaintiff cites no authority in support of her contention that such

amendment is necessary, required, or even proper at this late stage of the litigation. The Court
thus DENIES Plaintiff’s motion.
C.

Plaintiff’s Motion In Limine

In her motion in limine, Plaintiff seeks an Order excluding evidence related to the
following: (1) disciplinary actions taken against her by Defendant during her employment; (2)
her termination from employment; (3) charges of discrimination she filed with the Ohio Civil
Rights Commission (“OCRC”) and the Equal Opportunity in Employment Commission
(“EEOC”) following her termination; (4) the settlement of her EEOC/OCRC charges and a
grievance against Defendant; (5) Defendant’s payment of Nero’s medical expenses after April
20, 2014; and (6) Sheriff Cox’s death.
1.

Disciplinary Proceedings and Termination

From the briefing of the parties, it appears that, during Plaintiff’s employment with
Defendant, disciplinary proceedings and an investigation were commenced against Plaintiff
because of the way she spoke to a citizen and for revealing unflattering information about
Defendant.

Doc. 54 at PageID 1574.

Based upon such conduct, and because Plaintiff

purportedly lied during an investigation regarding such conduct, Plaintiff was ultimately fired by
Defendant. Id. Following her termination, Plaintiff filed charges of discrimination with the
Notably, Plaintiff’s failure to name a party that is sui juris does not deprive the Court of
jurisdiction. Hendricks v. Office of Clermont Cnty. Sheriff, 326 F. App’x 347, 350 (6th Cir. 2009).
2

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OCRC and EEOC, as well as a grievance with her union. Id. at PageID 1574-75. The parties
ultimately settled the discrimination charges and the grievance pursuant to the terms of a
confidential settlement agreement. Id. at PageID 1575.
Plaintiff argues that evidence of any of the foregoing is irrelevant and, to the extent it is
relevant, its probative value is substantially outweighed by unfair prejudice. Doc. 54 at PageID
1574-75. Plaintiff thus argues that evidence concerning the foregoing should be excluded at trial
pursuant to Fed. R. Evid. 403.

Id.

In response, Defendant argues that such evidence is

admissible under Fed. R. Evid. 608(b) because “Plaintiff’s discipline, termination, administrative
appeals, and resolution thereof are probative of Plaintiff’s truthfulness especially since her
estimate of overtime hours worked is central to this case.” Doc. 63 at PageID 1820.
Pursuant to Fed. R. Evid. 608(b), absent a criminal conviction arising from Plaintiff’s
purported dishonesty, Defendant cannot offer “extrinsic evidence . . . to prove specific instances
of” Plaintiff’s dishonesty for the purpose of attacking her “character for untruthfulness.” Fed. R.
Evid. 608(b). This prohibition extends to “any reference to the consequences that a witness
might have suffered as a result of an alleged bad act[,]” such as any investigation, disciplinary
proceeding, or termination resulting therefrom. Fed. R. Evid. 608, Advisory Committee Notes;
see also United States v. Davis, 183 F.3d 231, 257 n.12 (3d Cir. 1999); United States v.
Whitmore, 384 F.3d 836, 836 (D.C. Cir. 2004).
Evidence Rule 608(b) does, in the Court’s discretion, permit one to inquire of a witness
on cross-examination about specific instances of dishonesty. See Davis, 183 F.3d at 257; see
also Bauer v. Singh, No. 3:09-CV-194, 2011 WL 320189, at *2 (S.D. Ohio Jan. 28, 2011). In
this case, however, cross-examining Plaintiff regarding her purported dishonesty would
necessarily involve a discussion of disciplinary investigations and disciplinary proceedings since
-- as the Court understands the issue from the parties’ briefing -- Plaintiff’s allegedly untruthful

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statements were made in the course of such disciplinary proceedings and investigation. Plaintiff
would suffer significant prejudice should evidence of disciplinary proceedings and her
termination be admitted at trial, and such unfair prejudice significantly outweighs the slight
probative value such evidence presents. Accord Fed. R. Evid. 403.
Accordingly, Plaintiff’s motion (doc. 54) in this regard is GRANTED and Defendant is
precluded from introducing evidence of disciplinary investigations and disciplinary actions
concerning Plaintiff, including Plaintiff’s termination from employment.

This preliminary

finding may change depending upon the circumstances presented during trial.
2.

Discrimination Charges, Grievance, and Settlement

As set forth above, following Plaintiff’s termination, she filed charges of discrimination
against Defendant with the OCRC and EEOC, as well as a grievance with her union. The parties
represent that they ultimately settled the dispute concerning the discrimination charges and the
grievance. Doc. 54 at PageID 1575. It is not clear why these proceedings are relevant to the
FLSA claims at issue in this case, other than Defendant’s suggestion that Plaintiff made false
statements during these proceedings that Defendant should be permitted to inquire about on
cross-examination of Plaintiff under Fed. R. Evid. 608(b). Doc. 63 at PageID 1820. For the
reasons set forth above, Plaintiff’s motion is GRANTED in this regard.
3.

Nero’s Medical Bills

Plaintiff argues that evidence concerning Defendant’s payment of Nero’s medical bills,
following Plaintiff’s termination from employment, is not relevant to the issues presented. Doc.
54 at PageID 1575. Plaintiff fails to develop her argument in this regard beyond a conclusory
contention. Id. Accordingly, Plaintiff’s motion in this regard is DENIED at this time and
subject to further objection at trial.

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4.

The Death of Sheriff Cox

Finally, Plaintiff argues that the fact of Sheriff Cox’s death should be excluded at trial
because such fact may evoke sympathy for Defendant. Absent further development of this
argument by Plaintiff, the undersigned cannot find -- at this time -- that the fact of Sheriff Cox’s
death is excludable under Evidence Rule 403. Thus, Plantiff’s motion concerning evidence of
Sheriff Cox’s death is DENIED.
D.

Deposition Testimony of Sheriff Cox

Defendant seeks an Order preventing Plaintiff from presenting the deposition testimony
of Sheriff Cox at trial3 because, despite seeking testimony from him in his capacity as a
representative of the Sheriff’s Office, Plaintiff did not notice the deposition under Fed. R. Civ. P.
30(b)(6). Doc. 56. Defendant suggests that, whenever a party seeks testimony of an individual
in their role as a representative of an organization, such deposition must be noticed pursuant to
the specific terms of Fed. R. Civ. P. 30(b)(6), and that Defendant is the proper party to choose
the deponent speaking on its behalf. Doc. 56 at PageID 1596-99.
The Court notes that, upon its review of the record in this case, Defendant never sought a
protective order regarding Sheriff Cox’s deposition when it was initially noticed. Nevertheless,
from the undersigned’s perspective, nothing in Rule 30(b)(6) prevents a party from noticing a
specific individual within an organization for deposition under Rule 30(b)(1) instead of Rule
30(b)(6).

See Myhre v. Seventh-Day Adventist Church Reform Movement Am. Union Int’l

Missionary Soc., 298 F.R.D. 633, 640 (S.D. Cal. 2014) (holding that plaintiff was “not limited to
taking deposition testimony of an organization under Rule 30(b)(6)”).
In fact, Rule 30(b)(6), by its very terms, states that its provisions do “not preclude a
deposition by any other procedure allowed by these rules.” See Fed. R. Civ. P. 30(b)(6). The
Pursuant to Fed. R. Civ. P. 32(a)(4)(A), at trial, “[a] party may use for any purpose of the
deposition of a witness, whether or not a party, if the court finds . . . that the witness is dead[.]”
3

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Advisory Notes accompanying Rule 30 further state that subdivision (b)(6) is a “supplement”
and “an added facility for discovery.” Fed. R. Civ. P. 30 Advisory Notes. Thus, even after the
addition of subdivision (b)(6) to Rule 30:
A party may still name a particular person to testify on behalf of the
organization by noticing the deposition under Rule 30(b)(1) . . . Rule 30(b)(6)
simply gives a party seeking discovery from an organization or government
agency the choice either to designate an appropriate individual under Rule
30(b)(1), or to describe the subject matter of the questions to be asked and
allow the deponent to designate its own spokesperson familiar with the subject
matter.
Myhre, 298 F.R.D. at 640 (citation omitted). Accordingly, Defendant’s contention in this regard
has no merit and is DENIED.
Defendant further seeks to preclude the use of certain deposition testimony from Sheriff
Cox wherein Plaintiff’s counsel elicited testimony seeking legal conclusions. Doc. 56 at PageID
1599-1601. The undersigned GRANTS Defendant’s motion as it relates to testimony on page
27, lines 8 through 12. See doc. 33-3 at PageID 350. Defendant’s motion is DENIED in all
other respects.
E.

Evidence of Overtime Hours

Defendant argues that Plaintiff should be precluded from arguing that she is entitled to
overtime on any basis other than that set forth in 29 U.S.C. § 207(k) -- i.e., that she is entitled to
overtime on any basis other than having worked more than 171 hours during the 28 day work
period it established. Doc. 57 at PageID 1608. Defendant further argues that Plaintiff should be
precluded from testifying regarding her estimated hours worked because such estimate is based
on a 40-hour work week rather than a 28 day work period. Id.
As previously noted by the Court, § 207(a) of the FLSA requires employers to pay
overtime to employees who work more than 40 hours per week. See 29 U.S.C. § 207(a). Section
207(k), however, contains a partial exemption from the overtime provisions of § 207(a), in that

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public agencies, such as Defendant, may establish a “work period” that lasts from seven to
twenty-eight days for employees engaged in law enforcement or fire protection activities. See 29
U.S.C. § 207(k). Where § 207(k) applies, only employees who work more than 171 hours in a
28 day work period are entitled to overtime pay for hours worked over 171.4

29 U.S.C.

§ 207(k)(1); 29 C.F.R. §§ 553.201(a), 553.230; Franklin v. City of Kettering, 246 F.3d 531, 53334 (6th Cir. 2001).
The burden is on the employer to prove it has adopted a § 207(k) exemption. See
Corning Glass Works v. Brennan, 417 U.S. 188, 196-97 (1974). To meet this burden, the
employer must demonstrate that “it established a [§ 207(k)] work period and that the [§ 207(k)]
work period was ‘regularly recurring.’” Flores v. City of San Gabriel, 824 F.3d 890, 903 (9th
Cir. 2016).

An employer can meet its burden of demonstrating adoption of the § 207(k)

“exemption when it specified the work period in [a] CBA and when it actually followed this
period in practice.” See Adair v. City of Kirkland, 185 F.3d 1055, 1061 (9th Cir. 1999).
“Whether the employer has proved that he [or she] has adopted a 7(k) work period is a question
for the jury.” Birdwell v. City of Gadsden, Ala., 970 F.2d 802, 805 (11th Cir. 1992).
While it appears that Defendant adopted a § 207(k) exemption by virtue of the language
of the CBA governing Plaintiff’s employment, see doc. 34-4 at PageID 445, it is ultimately
The collective bargaining agreement (“CBA”) between Plaintiff’s union and Defendant states,
unambiguously, that “[t]he parties agree that in cases of Department of Labor complaints, Title 29 U.S.C.
Section 207(k) shall be utilized for purpose of determining the Employer’s compliance with the Fair
Labor Standards Act (FLSA).” Doc. 34-4 at PageID 445. In addition, the CBA states that “[t]he normal
work schedule shall consist of no more than one hundred and sixty-one and one-half (161 1/2) hours in a
twenty-eight (28) day work period.” Doc. 34-4 at PageID 445. Although the terms of the CBA in this
case are more generous to officers than the terms of the FLSA, “the ‘work period’ established under the
FLSA is [not] limited in any way by the terms of” a CBA. See Franklin v. City of Kettering, Ohio, 246
F.3d 531, 536 (6th Cir. 2001); Siegmund v. Cty. of Orange, 461 F. App’x 639, 641 (9th Cir. 2011).
Instead, extra overtime compensation paid under the terms of a CBA over and above the compensation
required by the FLSA “is credited toward any overtime compensation” due under the FLSA. 29 U.S.C.
§ 207(h); see also Franklin, 246 F.3d at 536. In this case, Plaintiff’s complaint is limited to overtime
compensation due under the FLSA, and she makes no claim for over compensation allegedly owed under
the terms of the CBA. Thus, if § 207(k) applies in this case, the question for determination at trial is
whether Plaintiff worked over 171 hours during a 28 day work period and, if so, whether she was paid
overtime for those hours as required by the FLSA.
4

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within the jury’s province to determine whether or not Defendant adopted the § 207(k)
exemption and subsequently followed such work period in practice. Based on the foregoing,
Plaintiff is not precluded from evidencing overtime owed under a 40-hour work week theory;
instead, Defendant bears the burden of proving and convincing the jury that it properly utilized
the exemption permitted in § 207(k).
Thus, Defendant’s motion in limine (doc. 57) concerning evidence of Plaintiff’s alleged
overtime work is DENIED.
F.

Conclusion

Based upon all of the foregoing, the Court:
(1)

DENIES Plaintiff’s second motion to amend and/or correct the case
caption (doc. 53);

(2)

GRANTS IN PART AND DENIES IN PART Plaintiff’s motion in
limine (doc. 54);

(3)

GRANTS IN LIMITED PART AND OTHERWISE DENIES
Defendant’s motion in limine to exclude the deposition of Sheriff Cox
(doc. 56); and

(4)

DENIES Defendant’s motion in limine to exclude information as it relates
to Plaintiff’s entitlement to overtime based upon a 40-hour work week.

IT IS SO ORDERED.

Date:

September 29, 2017

s/ Michael J. Newman
Michael J. Newman
United States Magistrate Judge