Pagan-Prorrata et al v. Municipio de Guaynabo et al
Filing
46
OPINION AND ORDER granting 27 Motion for Summary Judgment. Signed by Judge Raul M. Arias-Marxuach on 8/27/19. (mrr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
Cynthia Pagán-Porratta, et al.,
Plaintiffs,
vs.
CIVIL NO: 17-1961 (RAM)
Municipality of Guaynabo, et al.,
Defendants.
OPINION AND ORDER
RAÚL M. ARIAS-MARXUACH, District Judge
Pending before the Court is Defendants’ Motion for Summary
Judgment (Docket No. 27), alongside a Statement of Uncontested
Material Facts (Docket No. 25). Plaintiffs filed a Memorandum in
Opposition to Motion for Summary Judgment (“Opposition”) (Docket
No. 34) accompanied by a Response to Defendants’ Statement of
Uncontested Material Facts (“Response”) (Docket No. 35). Lastly,
Defendants filed Defendants’ Reply to Plaintiffs’ Opposition to
Motion for Summary Judgment and Response to Defendants’ Statement
of Uncontested Facts (“Reply”) (Docket No. 38).
For reasons stated below, the Court GRANTS Defendants’ Motion.
I.
FACTUAL BACKGROUND
On July 14, 2017, Cynthia Pagan-Porrata (“Pagán-Porrata”),
Anibal Jiménez-Haddock (“Jiménez-Haddock”), Daniel Cumbas-Aponte
Civil No. 17-1961 (RAM)
(“Cumbas-Aponte”),1
Carlos
2
Roberto
Morales-Figueroa
(“Ortiz-Ojeda”),
(collectively,
and
Santos-Torres
(“Morales-Figueroa”),
their
“Plaintiffs”),
respective
filed
a
(“Santos-Torres”),
Luis
conjugal
Complaint
Ortiz-Ojeda
partnerships
against
the
Municipality of Guaynabo and Wilfredo Martinez Hernandez, in his
official capacity as Police Commissioner of the Guaynabo Municipal
Police Department (collectively, “Defendants” or “Municipality”).
In the Complaint, Plaintiffs allege that Defendants violated
the Fair Labor Standards Act (“FLSA”). 29 U.S.C. § 201, et seq.
They also invoke supplemental jurisdiction by claiming violations
of local labor laws and the Puerto Rico Constitution. During the
time-frame alleged (on or around August 2012), Plaintiffs worked
as canine unit officers and were allegedly not compensated for
overtime work performed.2 Specifically, they request payment for
fourteen (14) hours spent taking care of their dogs outside of
“working hours.” (Docket No. 25 ¶ 63). These duties included
feeding, watering, grooming, bathing, exercising, transporting,
training, and bonding with the dogs. (Docket No. 1 ¶ 28). They
There is some discrepancy regarding the spelling of Mr. Daniel Cumbas-Aponte’s
last name. Since the spelling in Defendants’ Statement of Uncontested Material
Facts at Docket No. 25 appears as “Cumba”, for clarity’s sake the Court shall
adopt the same spelling for effects of this Opinion and Order.
1
The ending of this period varies as several of the plaintiffs have resigned
since the filing of this suit. Plaintiff Ortiz-Ojeda resigned from the canine
unit on March 23, 2016. (Docket No. 1 ¶ 40.) Likewise, Cumba-Aponte resigned on
July 6, 2018 and Jimenez-Haddock on February 15, 2018. Plaintiffs admitted both
resignations. (Docket No. 35 ¶¶ 42, 51). On the other hand, Plaintiffs PaganPorrata, Santos-Torres and Morale-Figueroa continue working for the canine unit.
2
Civil No. 17-1961 (RAM)
also
included
3
cleaning
the
canine
kennels
after
police
interventions by officers. Id. ¶ 37.3
Defendants denied the allegations in the Complaint (Docket
No. 11 at 11) and on October 4, 2018, filed a Motion for Summary
Judgement. (Docket No. 27). First, they argue that the Defendants
have been paying Plaintiffs “0.5” hours per day (3.5 hours per
week) for off-duty canine care and Plaintiffs failed to prove that
time
was
insufficient.
Id.
at
2.
Second,
they
contend
that
Plaintiffs generally worked overtime and accumulated compensatory
time off rather than cash overtime, but Defendants were unaware of
additional overtime work because Plaintiffs failed to report it.
Id. Moreover, Defendants allege that Plaintiffs failed to evidence
that
Defendants
discouraged
or
prevented
them
from
reporting
overtime work. Third, Defendants assert that although Plaintiffs
allege they often worked more than a 35-hour shift, none of them,
except Cumba-Aponte, accumulated more than 480 hours in Federal
Compensatory Time during the relevant period. Thus, they are not
owed cash overtime under the FLSA. Id. at 3. Finally, Defendants
argue that Plaintiffs’ FLSA claim was limited by FLSA’s two-year
statute of limitations. Id.
In
their
Opposition,
Plaintiffs
argue
that
Defendants
miscalculated their overtime hours and are owed payment for all
3
Allegedly, this activity alone took 2.5-3 hours per week. (Docket No. 1 ¶ 37).
Civil No. 17-1961 (RAM)
4
overtime hours worked by them. (Docket No. 34 at 4). They also
contend that the statute of limitations for payment of compensatory
time is tolled until each Plaintiff stops working for Defendants
and until the Guaynabo Municipal Police Department places a poster
of an employee’s overtime rights at the station. Id. at 5-6.
Plaintiffs' also posit that genuine issues of material fact prevent
summary judgment of the case. (Docket No. 35).
Defendants subsequently filed a Reply. (Docket No. 38). They
argue that Plaintiffs failed to create an issue of fact regarding
the recording of their overtime work performed. Id. at 3-6. They
further allege that Plaintiffs failed to create an issue of fact
that the Defendants had not been properly compensating the officers
for additional canine care. Id. at 6-7. Lastly, they aver that
Plaintiffs acknowledged they failed to make Defendants aware of
the alleged overtime work performed by Defendants. Id. 8-10.
II.
LEGAL STANDARD
A motion for summary judgment is governed by Fed. R. Civ. P.
56(a). This rule entitles a party to judgment if “the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). A dispute is genuine “if the evidence about the fact is
such that a reasonable jury could resolve the point in the favor
of the non-moving party.” Mercado-Reyes v. City of Angels, Inc.,
320 F. Supp. 3d 344, 347 (D.P.R. 2018) (quotation omitted). On the
Civil No. 17-1961 (RAM)
5
other hand, a fact is considered material “if it has the potential
of determining the outcome of the litigation.” Id.
The moving party has “the initial burden of ‘demonstrat[ing]
the absence of a genuine issue of material fact’ with definite and
competent evidence.” Id. (quoting Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986)). Once this occurs, the burden shifts to the
nonmovant. The United States Court of Appeals for the First Circuit
(“First Circuit”) has stated that a non-moving party must “with
respect to each issue on which he has the burden of proof, […]
demonstrate that a trier of fact reasonably could find in his
favor.” Woodward v. Emulex Corp., 714 F.3d 632, 637 (1st Cir. 2013)
(quotation omitted).
While a Court will draw all reasonable inferences in favor of
the
non-movant,
allegations.
See
it
will
Johnson
disregard
v.
unsupported
Duxbury,
or
conclusory
Massachusetts,
2019
WL
3406537, at *2 (1st Cir. 2019). The United States Supreme Court
has stated that the existence of “some alleged factual dispute
between the parties will not affect an otherwise properly supported
motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 379
(2007) (quotation omitted). A court should review the record “as
a whole,” and “may not make credibility determinations or weigh
the evidence” as that is a job for the jury. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 135 (2000).
Civil No. 17-1961 (RAM)
6
Finally, Local Rule 56 also governs summary judgement. See
D.P.R. Civ. R. 56. Per the rule, a motion for summary judgement
must include “a separate, short, and concise statement of material
facts, set forth in numbered paragraphs, as to which […] there is
no genuine issue of material fact to be tried.” Id. A nonmoving
party must then “admit, deny or qualify the facts supporting the
motion […] by reference to each numbered paragraph of the moving
party’s statement of material facts.” Id. The First Circuit has
highlighted that “[p]roperly supported facts […] shall be deemed
admitted unless controverted in the manner prescribed by the local
rule.” Advanced Flexible Circuits, Inc. v. GE Sensing & Inspection
Techs. GmbH, 781 F.3d 510, 520 (1st Cir. 2015) (quotation omitted).
“[L]itigants ignore [those rules] at their peril”. Gautier v.
Brennan, 2019 WL 2754673, at *2 (D.P.R. 2019) (quotation omitted).
III. FINDINGS OF FACT
Before
address
discussing
several
the
compliance
undisputed
issues
facts,
which
arose
the
Court
when
must
reviewing
Plaintiffs’ Response to the Statement of Uncontested Material Facts
(“SUMF”). (Docket No. 35). In general, Plaintiffs admitted, denied
or qualified the facts presented in the SUMF filed by Defendants.4
In their SUMF, Defendants presented ninety-four (94) assertions of uncontested
fact. (Docket No. 25). In their Opposition, Plaintiffs admitted sixty-five (65)
facts and denied twenty-two (22) facts. Plaintiffs also considered two (2) facts
to be immaterial. (Docket No. 35 ¶¶ 14 and 27). The Court notes however that
Plaintiffs neither outright admitted, denied nor qualified five (5) facts. Id.
at ¶¶ 3, 4, 5, 64, 81. These last five will therefore be deemed admitted.
4
Civil No. 17-1961 (RAM)
7
However, Plaintiffs failed to include a response for proposed
undisputed Facts Nos. 3, 4, 5, 64 and 81. (Docket No. 35 at 2, ¶¶
3-5, at 24-25, ¶ 64 and at 29, ¶ 81). Consequently, these facts
are deemed admitted per Local Rule 56 and Fed. R. Civ. P. 56(e),
the latter of which states that “[i]f a party fails to properly
support an assertion of fact or fails to properly address another
party's assertion of fact […], the court may […] consider the fact
undisputed for purposes of the motion.”
Plaintiffs
sought
to
create
a
material
issue
of
fact
concerning accrual of compensatory time by asserting that most
calculations of their hours worked are wrong because Defendants
counted a quarter of an hour as “.15” of an hour, rather than the
requisite
“.25”
minutes
of
an
hour.
(Docket
No.
35
¶
28).
Defendants allegedly also miscounted a half-hour as “.30” of an
hour rather than the requisite “.5”, and so forth. Id. This caused
Plaintiffs Pagán-Porrata (Docket No. 35 ¶¶ 35-36), Jiménez-Haddock
(Id. ¶¶ 44-45), Cumba-Aponte (Id. ¶¶ 53-54), Santos-Torres (Id. ¶¶
62-63), Morales-Figueroa (Id. ¶¶ 70-71) and Luis Ortiz-Ojeda (Id.
¶¶ 72-73) to have incorrect hourly balances in accrued compensatory
time. As proof, however, Plaintiffs only submitted handwritten
comments as to how many hours were allegedly unrecorded. (Docket
Nos. 35-2, 35-3, 35-4, 35-5, 35-6 and 35-7). In their Reply,
Defendants contend that these calculations of hours, even if done
in the most favorable manner towards the nonmovants, would still
Civil No. 17-1961 (RAM)
8
fail to pass for most Plaintiffs, Cumba-Aponte excluded, the 480hour FLSA threshold which would justify a cash compensation for
overtime. (Docket No. 38 at 4-6). The Court notes that no other
evidence, neither affidavit nor sworn statement, was provided
which could attest to these differences in hourly calculations.
The same occurred regarding Fact No. 85. (Docket No. 35 at ¶ 85).
The First Circuit has stated that a “nonmovant can thwart the
motion [for summary judgement] only by showing through materials
of evidentiary quality that a genuine dispute exists about some
material fact.” Acosta v. Ames Dep't Stores, Inc., 386 F.3d 5, 8
(1st Cir. 2004). Similarly, summary judgment is appropriate when
a nonmoving party rests upon “conclusory allegations […] and
unsupported
speculation.”
Johnson,
2019
WL
3406537,
at
*2
(internal quotation omitted). Therefore, while there might be some
discrepancy as to the hours calculated, without evidentiary proof
stating otherwise, the purported factual disputes are not enough
to surpass a well-founded summary judgment. See e.g., Baum-Holland
v. El Conquistador P'ship, L.P., S.E., 336 F. Supp. 3d 6, 20
(D.P.R.
2018)
(quoting
Anderson
v.
Liberty
Lobby,
Inc.,
477
U.S.242, 247–248(1986)) (Finding that the mere existence “of some
alleged factual dispute between the parties will not affect an
otherwise properly supported motion for summary judgment.”). These
facts are thus admitted.
Civil No. 17-1961 (RAM)
9
Likewise, a similar situation occurs regarding allegedly
disputed facts related to the calculations for compensatory time
and whether Plaintiffs surpassed the 480-hour FLSA threshold. For
example,
Plaintiffs
attempted
to
deny
Fact
No.
37
regarding
plaintiff Pagan-Porrata’s Federal Compensatory Time by stating
that the time calculations were inaccurate, and that Defendants
had miscounted Pagan-Porrata’s overtime. (Docket No. 35 at ¶ 37).
However,
a
review
of
the
denial’s
explanation
reveals
that
Plaintiffs failed to oppose the truth of the fact itself. While,
they attempted to explain how a recalculation of Pagan-Porrata’s
hours with the “correct” fraction of the hour was necessary, they
still failed to proffer proof as to how Pagan-Porrata supposedly
surpassed
receive
the
cash
480-hour
FLSA
compensation.
threshold
In
the
and
process,
therefore,
they
should
failed
to
contradict the fact itself. The fact is thus admitted. See Marina
de Ponce, Inc. v. Fed. Deposit Ins. Corp., 2018 WL 1061441, at *2
(D.P.R. 2018) (“The denials presented by Plaintiff Marina do not
oppose the truth of the statement offered and are either irrelevant
to the matter at hand, provide additional evidence not related to
the fact in question and/or failed to contradict it.”) This also
applies to similarly situated facts, such as Fact Nos. 37, 46, 55,
72 and 80 (Docket No. 25 ¶ 37, 46, 55, 72 and 80). These facts are
therefore also admitted. Finally, Fact No. 14 is also admitted
given that Plaintiffs’ only response to said fact was simply
Civil No. 17-1961 (RAM)
10
claiming it is “not material” without providing any additional
evidence or explanation as to why the fact was immaterial.
The Court will therefore deem as uncontested the following
assertions of fact contained in Plaintiffs’ SUMF:5
Regulatory Provisions
1. If for any reason the time worked by the MG police officer
exceeds the legal work shift, it shall result in compensatory
time at a rate of time and a half. (Docket No. 25 ¶ 1).
2. Time worked that exceeds a regular shift shall result in
compensatory time at a rate of time and a half. (Docket No.
25 ¶ 2).
3. For MG police officers, “Municipal Compensatory Time”
consists of hours worked in excess of a legal work shift
(whether daily or weekly), and accumulated at time-and-a-half
(1.5), if the employee does not exceed 40 hours a week.
(Docket No. 25 ¶ 3).
4. “Municipal Compensatory Time” can only be enjoyed, and is not
subject to payment. (Docket No. 25 ¶ 4).
5. For MG police officers, “Federal Compensatory Time” is time
worked in excess of 40 hours a week which is accumulated at
time-and-a-half (1.5); the accumulated excess over 480 hours
of Federal Compensatory Time is subject to payment at the
salary the employee is receiving at the time of payment.
(Docket No. 25 ¶ 5).
6. Under no circumstances are MG police officers allowed to work
in excess of the legal work shift without the consent and
approval of the immediate supervisor, who will make the
Administration Division of the MG Police Department following
the applicable procedure, by writing, justifying the reason
or need thereto. (Docket No. 25 ¶ 6).
7. Pursuant to the Regulation of the Autonomous Municipality of
Guaynabo to Establish the Accumulation of Compensatory Time
The numbers for the material facts herein deemed admitted do not necessarily
coincide with their respective numbers in the SUMF. Therefore, the Court also
includes a reference to the original paragraph number in the SUMF.
5
Civil No. 17-1961 (RAM)
11
and its Enjoyment, it is the responsibility of every employee
that he or she perform the work within the legal work shift,
and not perform work beyond the legal work shift without the
corresponding authorization. Moreover, anyone who works
overtime without the corresponding authorization will not be
credited with the overtime worked. (Docket No. 25 ¶ 7).
8. Pursuant to the Regulation of the Autonomous Municipality of
Guaynabo to Establish the Accumulation of Compensatory Time
and its Enjoyment, the employee and his supervisor must use
the form titled “Authorization of Overtime,” complete, sign
and sent to the Office of Administration of Human Resources
within five (5) business days of the supervisor’s
authorization and performance of the work. (Docket No. 25 ¶
8).
9. Pursuant to the Regulation of the Autonomous Municipality of
Guaynabo to Establish the Accumulation of Compensatory Time
and its Enjoyment, if the procedure is not followed, the
Municipality does not have to provide compensatory time or
payment in excess of the 480 hours. (Docket No. 25 ¶ 9).
10. Pursuant to the Regulation of Work Shift and Attendance
for the Employees of the Autonomous Municipality of
Guaynabo, municipal employees must attend work with
regularity, punctuality and comply with the established work
shift. (Docket No. 25 ¶ 10).
11. The Municipality of Guaynabo is utilizing KRONOS, an
automated time and attendance system, to track and monitor
when municipal employees, such as plaintiffs, punches in and
out of work. (Docket No. 25 ¶ 11).
Plaintiffs’ general knowledge of rights under the FLSA
12. The Regulation of the Autonomous Municipality of Guaynabo
to Establish the Accumulation of Compensatory Time and its
Enjoyment states as its legal basis the Fair Labor Standards
Act, 29 U.S.C. 201, et seq., and its implementing
regulations, among other laws. (Docket No. 25 ¶ 12).
13. By May 2015, the plaintiffs had already been provided with
a copy of (i) Regulation of the Municipality of Guaynabo
Police Department, and (ii) Regulation of the Autonomous
Municipality of Guaynabo to Establish the Accumulation of
Compensatory Time and its Enjoyment; and (iii) Regulation
of Work Shift and Attendance for the Employees of the
Civil No. 17-1961 (RAM)
12
Autonomous Municipality of Guaynabo. (Docket No. 25 ¶ 13).
14. The Municipality pays the plaintiffs on a bi-monthly basis
(i.e. payday falls on the same days of each month). (Docket
No. 25 ¶ 14).
The “Back Wage and Compliance and Payment Agreement” between the
U.S. Department of Labor and the Municipality of Guaynabo
15. On March 30, 2016, the U.S. Department of Labor executed a
“Back Wage and Compliance and Payment Agreement” (the
“Agreement”) with plaintiffs’ employer, the Municipality
of Guaynabo. (Docket No. 25 ¶ 15).
16. The Agreement was the result of an investigation conducted
by the U.S. Department of Labor’s Wage and Hour Division
which covered the Municipality of Guaynabo’s operations from
May 6, 2013 to May 3, 2015. (Docket No. 25 ¶ 16).
17. The investigation included, inter alia, the hours worked in
excess of 40 hours per week by K-9 municipal police officers
who had dogs assigned to them. (Docket No. 25 ¶ 17).
18. Plaintiffs Cynthia Pagán-Porrata, Aníbal Jiménez-Haddock,
Daniel Cumba-Aponte, Roberto Santos-Torres, Carlos MoralesFigueroa, Luis Ortiz-Ojeda were among the K-9 municipal
police officers included in the investigation conducted by
the U.S. Department of Labor’s Wage and Hour Division.
(Docket No. 25 ¶ 18).
19. As a result of the investigation and subsequent Agreement,
plaintiffs Cynthia Pagán- Porrata, Aníbal Jiménez, Daniel
Cumba-Aponte,
Roberto
Santos-Torres,
Carlos
Morales
Figueroa, and Luis Ortiz-Ojeda received back-pay for all
uncompensated work performed in excess of 40 hours per week
accrued from May 6, 2013 to May 3, 2015. (Docket No. 25
¶19).
20. Plaintiff Pagán-Porrata received $ 2,383.49; plaintiff
Jiménez-Haddock
$
1,552.74;
plaintiff
Cumba-Aponte
$2,141.05; plaintiff Santos-Torres $ 656.18; plaintiff
Morales Figueroa $ 1,081.71; and Ortiz-Ojeda $ 61.19.
(Docket No. 25 ¶ 20).
The December 16, 2016 letter
Civil No. 17-1961 (RAM)
13
21. On December 16, 2016, the Director of Human Resources of the
Municipality of Guaynabo at the time, Mr. Eduardo R. FaríaRodríguez, issued a letter to plaintiffs Cynthia Pagan
Porrata, Aníbal Jiménez-Haddock, Daniel Cumba-Aponte,
Roberto
Santos-Torres,
and
Carlos
Morales-Figueroa.
(Docket No. 25 ¶ 21).
22. Plaintiffs Cynthia Pagan-Porrata, Aníbal J i m é n e z -Haddock,
Daniel Cumba-Aponte,
Roberto Santos-Torres, and Carlos
Morales-Figueroa received the letter dated December 16, 2016
during the month of December 2016. (Docket No. 25 ¶ 22).
23. The December 16, 2016 letter notified said plaintiffs
that effective January 1, 2017, plaintiffs’ daily legal
work shift in the K-9 unit will consist of 6.5 hours
performing work at the municipality physically, and .5 hours
of dog maintenance time at home, for a total daily legal
work shift of 7 hours per day, 35 hours per week. (Docket
No. 25 ¶ 23).
24. The December 16, 2016 letter further notified said
plaintiffs that in the event the municipality required him
or her to work in the municipality physically excess of 7
hours per day, the municipality will credit him or her with
30 minutes of compensatory time for each day that occurred,
and the plaintiff had a K-9 dog in his or her care. (Docket
No. 25 ¶ 24).
25. Moreover, the municipality will credit the plaintiff with
30 minutes of compensatory time for each day off, holiday
or vacation day the plaintiff had a K-9 dog in his or her
care. (Docket No. 25 ¶ 25).
26. The December 16, 2016 letter notified the plaintiff that
effective April 4, 2015, the municipality will credit the
plaintiff with 30 minutes of compensatory time for each day
the plaintiff had a K-9 dog in his or her care. (Docket No.
25 ¶ 26).
Plaintiffs’ Attendance and Time Worked
27. On September 4, 2018, personnel from the Department of Human
Resources finalized a report (the “Report”) of the hours
worked per week by K-9 Unit police officers plaintiffs
Cynthia Pagan-Porrata, Aníbal Jiménez-Haddock, Daniel
Cumba-Aponte, Roberto Santos Torres, Carlos MoralesFigueroa and Luis Ortiz-Ojeda, from May 1, 2015 to August
Civil No. 17-1961 (RAM)
14
1, 2018, or until the employee ceased working for the K-9
Unit ascribed to the Municipality of Guaynabo’s Police
Department. (Docket No. 25 ¶ 28).6
28. The documents utilized to generate the Report were (i) the
KRONOS attendance records of Cynthia Pagan-Porrata, Aníbal
Jiménez-Haddock, Daniel Cumba-Aponte, Roberto SantosTorres, Carlos Morales-Figueroa and Luis Ortiz-Ojeda and
(ii) letter issued by former Director of the Department of
Human Resources, Eduardo Faría, on December 16,2016, to K9 Unit Police Officers Cynthia Pagan-Porrata, Aníbal
Jiménez-Haddock, Daniel Cumbas-Aponte, Roberto SantosTorres, and Carlos Morales-Figueroa. (Docket No. 25 ¶ 29).7
29. Pursuant to Municipal Ordinance No. 82, issued on November
27, 2002, the work-shift for all municipal police officers,
medics, paramedics and firemen is 7 hours per day, 35 hours
per week. (Docket No. 25 ¶ 30).
30. Plaintiffs’ work shift is thirty-five (35) hours per week.
(Docket No. 25 ¶ 31).
Plaintiff Cynthia Pagán-Porrata
31. Plaintiff
Pagán-Porrata
began
working
for
municipality’s police department on February 1,
(Docket No. 25 ¶ 32).
the
2008.
32. Plaintiff Pagán-Porrata was assigned to the canine unit of
In their Response, Plaintiffs provided a mixed response to this fact. While
they admitted that the Guaynabo Human Resources Department finalized the report,
they also denied its accuracy and stated that it was immaterial. However, a
review of Plaintiffs’ explanation for its response reveals that they failed to
contradict the fact itself. The fact is thus admitted.
6
Plaintiffs never questioned the authenticity of Defendants’ Exhibit 17
“Certification of work hours and accrued comp. time” (Docket No. 25-17). The
Court notes that the Certification appears on official “Autonomous Municipality
of Guaynabo Human Resources Office” letterhead, bears the seal of the
Municipality and contains the signature of Giovanni Mercado-Reyes, Human
Resources Director of the Municipality. Therefore, it should be considered selfauthenticating under Fed. R. Civ. P. 902(1). See e.g., Jones v. Perry, 215 F.
Supp. 3d 563, 567 n.1 (E.D. Ky. 2016) (holding that a letter bearing the seal
and letterhead of the Commonwealth of Kentucky and the signature of a Warden
was also self-authenticating under Fed. R. Civ. P. 902(1)); see also, Berel Co.
v. Sencit F/G McKinley Assocs., 710 F. Supp. 530, 547 (D. N.J. 1989)(“This
meeting is fully documented in a letter […]on Agency letterhead and signed by
[…] [the] Director of Technical Services. […] No party has asserted that the
document is not what it claims to be, and it appears to be within the provision
for self-authenticating documents. See Fed.R.Evid. 902(2).”)
7
Civil No. 17-1961 (RAM)
the municipality’s police
(Docket No. 25 ¶ 33).
15
department on August 4, 2012.
33. Plaintiff
Pagán-Porrata
continues
working
for
municipality’s canine unit. (Docket No. 25 ¶ 34).
the
34. As of May 1, 2015, plaintiff Cynthia Pagán-Porrata had a
balance of 33:10 hours in accrued compensatory time. (Docket
No. 25 ¶ 35).
35. Plaintiff Cynthia Pagán-Porrata had worked a total of 227.95
hours in excess of 40 hours per week for the time period
commencing May 1, 2015 to August 1, 2018. (Docket No. 25 ¶
36).
36. Assuming that all of the compensatory time plaintiff PagánPorrata had accrued by May 1, 2015 is Federal Compensatory
Time, rather than Municipal Compensatory Time, plaintiff
Pagán-Porrata accrued around 261 (33+228 = 261) hours in
Federal Compensatory Time, which is 219 (480 - 261 = 219)
hours below the 480 hour threshold under the FLSA for the
payment of cash overtime. (Docket No. 25 ¶ 37).
37. Between September 16, 2016 and November 30, 2017, plaintiff
Cynthia Pagán-Porrata received a total of $1,507.50 in cash
overtime. (Docket No. 25 ¶ 38).
38. According to the Department of Human Resources’ records,
plaintiff Cynthia Pagán Porrata did not report time spent
cleaning canine unit kennels or her assigned vehicle in and
“Authorization of Overtime” form completed between May 2015
and August 2018. (Docket No. 25 ¶ 39).
Plaintiff Aníbal Jiménez-Haddock
39. Plaintiff
Jiménez-Haddock
began
working
for
the
municipality’s police department on April 30, 2009. (Docket
No. 25 ¶ 40).
40. Plaintiff Jiménez-Haddock was assigned to the canine unit
of the municipality’s police department on June 2013.
(Docket No. 25 ¶ 41).
41. Plaintiff Jiménez-Haddock resigned effective February 15,
2018. (Docket No. 25 ¶ 42).
42. At the time of his resignation, plaintiff Jiménez-Haddock
Civil No. 17-1961 (RAM)
16
was working for the canine unit. (Docket No. 25 ¶ 43).
43. As of May 1, 2015, plaintiff Aníbal Jiménez-Haddock had
balance of 34:02 hours in accrued compensatory time. (Docket
No. 25 ¶ 44).
44. Plaintiff Aníbal Jiménez-Haddock had worked a total of 93.11
hours in excess of 40 hours per week for the time period
commencing May 1, 2015 to August 1, 2018. (Docket No. 25 ¶
45).
45. Assuming that all of the compensatory time plaintiff
Jiménez-Haddock had accrued by May 1, 2015 is Federal
Compensatory Time, rather than Municipal Compensatory Time,
plaintiff Jiménez-Haddock accrued around 127 (34 + 93 = 127)
hours in Federal Compensatory Time, which is 353 (480 - 127
= 353) hours below the 480 hour threshold under the FLSA
for the payment of cash overtime. (Docket No. 25 ¶ 46).
46. Between 9-16-2016 and 11-30-2017, plaintiff JiménezHaddock received $1,473.51 in cash overtime. (Docket No.
25 ¶ 47).
47. According to the Department of Human Resources’ records,
plaintiff Aníbal Jiménez Haddock did not report time spent
cleaning canine unit kennels or his assigned vehicle in any
“Authorization of Overtime” form completed between May 2015
and February 15, 2018. (Docket No. 25 ¶ 48).
Plaintiff Daniel Cumba-Aponte
48. Plaintiff Cumba-Aponte began working for the municipality’s
police department on October 20, 2008. (Docket No. 25 ¶
49).
49. Plaintiff Cumba-Aponte was assigned to the canine unit of
the municipality’s police department on August 4, 2012.
(Docket No. 25 ¶ 50).
50. Plaintiff Cumba-Aponte resigned effective July 6, 2018.
(Docket No. 25 ¶ 51).
51. At the time of his resignation, plaintiff Cumba-Aponte was
working for the canine unit. (Docket No. 25 ¶ 52).
52. As of May 1, 2015, plaintiff Daniel Cumbas-Aponte had
balance of 250:11 hours in accrued compensatory time.
Civil No. 17-1961 (RAM)
17
(Docket No. No. 25 ¶ 53).
53. Plaintiff Daniel Cumbas-Aponte had worked a total of 232.15
hours in excess of 40 hours per week for the time period
commencing May 1, 2015 to August 1, 2018. (Docket No. No.
25 ¶ 54).
54. Assuming that all of the compensatory time plaintiff CumbaAponte had accrued by May 1, 2015 is Federal Compensatory
Time, rather than Municipal Compensatory Time, plaintiff
Cumba-Aponte accrued around 482 (250+232= 482) hours in
Federal Compensatory Time, which is 2 (482 - 480 = 2) hours
over the 480 hour threshold under the FLSA for the payment
of cash overtime. (Docket No. 25 ¶ 55).
55. According to the Report, plaintiff Cumba-Aponte exceeded the
480 hour threshold under the FLSA for the payment of cash
overtime on June 24, 2018, when he accumulated 3.10 hours
in excess of 40 work hours. (Docket No. 25 ¶ 56).
56. Between 10-1-2017 and 11-30-2017, plaintiff Cumba-Aponte
received $1,564.87 in cash overtime. (Docket No. 25 ¶ 57).
57. According to the Department of Human Resources’ records,
plaintiff Daniel Cumba Aponte did not report time spent
cleaning canine unit kennels or his assigned vehicle in
any “Authorization of Overtime” form completed between May
2015 and July 6, 2018. (Docket No. 25 ¶ 58).
Plaintiff Roberto Santos-Torres
58. Plaintiff Santos-Torres began working for the municipality’s
police department on April 12, 2010. (Docket No. 25 ¶ 59).
59. Plaintiff Santos-Torres was assigned to the canine unit of
the municipality’s police department on September 2014.
(Docket No. 25 ¶ 60).
60. Plaintiff Santos-Torres continues working for the canine
unit. (Docket No. 25 ¶ 61).
61. As of May 1, 2015, plaintiff Roberto Santos-Torres had a
balance of 61:13 hours in accrued compensatory time. (Docket
No. 25 ¶ 62).
62. Plaintiff Roberto Santos-Torres had worked a total of 111.15
hours in excess of 40 hours per week for the time period
Civil No. 17-1961 (RAM)
18
commencing May 1, 2015 to August 1, 2018. (Docket No. 25 ¶
63).
63. Assuming that all of the compensatory time plaintiff SantosTorres had accrued by May 1, 2015 is Federal Compensatory
Time, rather than Municipal Compensatory Time, plaintiff
Santos-Torres accrued around 172 (61 + 111 = 172) hours in
Federal Compensatory Time, which is 308 (480 - 172 = 308)
hours below the 480 hour threshold under the FLSA for the
payment of cash overtime. (Docket No. 25 ¶ 64).
64. Between 10-1-2017 and 11-30-2017, plaintiff Santos-Torres
received $1,413.61 in cash overtime. (Docket No. 25 ¶ 65).
65. According to the Department of
plaintiff Santos-Torres did not
canine unit kennels or his
“Authorization of Overtime” form
and August 2018. (Docket No. 25
Human Resources’ records,
report time spent cleaning
assigned vehicle in any
completed between May 2015
¶ 66).
Plaintiff Carlos Morales-Figueroa
66. Plaintiff
Morales-Figueroa
began
working
for
the
municipality’s police department on April 12, 2010. (Docket
No. 25 ¶ 67).
67. Plaintiff Morales-Figueroa was assigned to the canine unit
of the municipality’s police department on May 2016. (Docket
No. 25 ¶ 68).
68. Plaintiff Morales-Figueroa continues working for the canine
unit. (Docket No. 25 ¶ 69).
69. As of May 1, 2015, plaintiff Carlos Morales-Figueroa had a
balance of 29:35 hours in accrued compensatory time. (Docket
No. 25 ¶ 70).
70. Plaintiff Carlos Morales-Figueroa had worked a total of
84.95 hours in excess of 40 hours per week for the time
period commencing May 1, 2015 to August 1, 2018. (Docket
No. 25 ¶ 71).
71. Assuming that all of the compensatory time plaintiff
Morales-Figueroa had accrued by May 1, 2015 is Federal
Compensatory Time, rather than Municipal Compensatory Time,
plaintiff Morales-Figueroa accrued around 115 (30 + 85 =
115) hours in Federal Compensatory Time, which is 365 (480
Civil No. 17-1961 (RAM)
19
- 115 = 365) hours below the 480 hour threshold. (Docket
No. 25 ¶ 72).
72. Between 9-16-2016 and 11-30-2017, plaintiff Morales-Figueroa
received $1,319.72 in cash overtime. (Docket No. 25 ¶ 73).
73. According to the Department of Human Resources’ records,
plaintiff Morales-Figueroa did
not report time spent
cleaning canine unit kennels or his assigned vehicle in any
“Authorization of Overtime” form completed between May 2015
and August 2018. (Docket No. 25 ¶ 74).
Plaintiff Luis Ortiz Ojeda
74. Plaintiff Ortiz-Ojeda began working for the municipality’s
police department on April 12, 2010. (Docket No. 25 ¶ 75).
75. Plaintiff Ortiz-Ojeda worked for the canine unit of the
municipality’s police department from March 2015 to March
2016. (Docket No. 25 ¶ 76).
76. Plaintiff
Ortiz-Ojeda
continues
working
for
the
municipality’s police department, but has not worked for
the municipality’s canine unit since March 2016. (Docket No.
25 ¶ 77).
77. As of May 1, 2015, plaintiff Luis Ortiz-Ojeda had a balance
of 36:51 hours in accrued compensatory time. (Docket No. 25
¶ 78).
78. Plaintiff Luis Ortiz-Ojeda had worked a total of 16.65 hours
in excess of 40 hours per week for the time period commencing
May 1, 2015 to August 1, 2018. (Docket No. 25 ¶ 79).
79. Assuming that all of the compensatory time plaintiff OrtizOjeda had accrued by May 1, 2015 is Federal Compensatory
Time, rather than Municipal Compensatory Time, plaintiff
Ortiz-Ojeda accrued around 24 (7 + 17 = 24) hours in Federal
Compensatory Time, which is 456 (480 - 24 = 456) hours below
the 480 hour threshold under the FLSA for the payment of
cash overtime. (Docket No. 25 ¶ 80).
80. Between 10-1-2017 and 11-30-2017, plaintiff Ortiz-Ojeda
received $ 695.63 in cash overtime. (Docket No. 25 ¶ 81).
81. According to the Department of Human Resources’ records,
plaintiff Morales-Figueroa did
not report time spent
Civil No. 17-1961 (RAM)
20
cleaning canine unit kennels or his assigned vehicle in any
“Authorization of Overtime” form completed between March
2015 and March 2016. (Docket No. 25 ¶ 82).
Other Statements
82. Interrogatory No. 3 of the municipality’s first set of
interrogatories states that “[w]ith
respect to the
averments contained in Count I of the Complaint, provide
the following information with regards to the Municipality
of Guaynabo: (a) the name, address and telephone number
of each person having knowledge of the facts relating to
said averment; all facts upon which you base said averment.”
(Docket No. 25 ¶ 83).
83. Count I of the Complaint is plaintiffs’ claim under the Fair
Labor Standards Act, 29 U.S.C. § 201 et seq. (Docket No. 25
¶ 84).
84. Plaintiff Pagán-Porrata worked 37.05 hours during the week
ending January 29, 2017, not taking into account the
assigned 3.5 hours for off-duty canine care. (Docket No. 25
¶ 85).
Metropolitan Animal Clinic
85. Since at least 2014, the Municipality of Guaynabo has had a
contract with Metropolitan Animal Clinic to take care of
the medical and grooming needs of all the dogs belonging to
the municipality’s canine unit. (Docket No. 25 ¶ 86).
86. Metropolitan Animal Clinic is located in the Municipality
of Guaynabo, and it is run by Dr. José, M. Trujillo, a
veterinarian. (Docket No. 25 ¶ 87).
87. The services Metropolitan Animal Clinic provides to the
dogs belonging to the municipality’s canine unit include
bathing, boarding, grooming, and addressing all the dog’s
medical needs, including medical emergencies. (Docket No.
25 ¶ 88).
88. Metropolitan Animal Clinic’s current hours of operation are
from Monday to Thursday, 8:00 AM to 7:00 PM, Friday from
8:00 AM to 5:00 PM, and Saturday from 9:00 AM to 5:00 PM.
(Docket No. 25 ¶ 89).
Civil No. 17-1961 (RAM)
21
The Municipality of Guaynabo’s Vehicle Maintenance Service
Station
89. The Municipality of Guaynabo has a vehicle maintenance
service station, located in Guaynabo, Road No. 835, Mamey
Ward, which is run by Juan Cruz-Santiago, Supervisor of
Transportation of the Municipality of Guaynabo’s Police
Department. (Docket No. 25 ¶ 90).
90. The vehicle maintenance service station provides a wide
range of maintenance and light repair services to the
vehicles belonging to the municipality, including the ones
assigned to
the
Municipality
of
Guaynabo’s
Police
Department, which are given priority. (Docket No. 25 ¶ 91).
91. Among the services provided is washing and cleaning all
vehicles
of
the
Municipality of
Guaynabo’s
Police
Department. (Docket No. 25 ¶ 92).
92. Personnel from the vehicle maintenance service station are
assigned to wash and clean the vehicle that is brought to
the station. (Docket No. 25 ¶ 93).
93. The vehicle maintenance service station maintains regular
hours of operation. That is, from Monday to Friday, 5:00 AM
to 6:00 PM, and Saturday 7:00 AM to 4:00 PM. (Docket No. 25
¶ 94).
IV.
ANALYSIS
A. Prima Facie claims under the FLSA
The
FLSA
seeks
to
“protect
all
covered
workers
from
substandard wages and oppressive working hours.” Encino Motorcars,
LLC v. Navarro, 136 S. Ct. 2117, 2121 (2016) (quoting Barrentine
v. Arkansas–Best Freight System, Inc., 450 U.S. 728, 739, (1981)).
In order to do so, the FLSA establishes “federal minimum-wage,
maximum-hour, and overtime guarantees.” Giguere v. Port Res. Inc.,
927 F.3d 43, 45 (1st Cir. 2019). The FLSA thus requires employers
to pay overtime compensation to covered employees who surpass a
Civil No. 17-1961 (RAM)
22
40-hour work week or the work week established by the employer
(here it was 35 hours per week). This “overtime rate should ‘not
be less than one and one-half times the regular rate’ of the
employee’s pay.” Encino Motorcars, LLC, 136 S. Ct. at 2121 (quoting
29 U.S.C. § 207(a)).
To prevail under the FLSA’s provisions, an employee alleging
unpaid overtime wages must prove that they worked longer than their
assigned hours and that they were not compensated accordingly.
Hence, the most important factors of an FLSA claim are that: “(1)
plaintiffs must be employed by the defendants; (2) the work
involved interstate activity; […] (3) plaintiffs ‘performed work
for
which
they
were
under-compensated.’”
Santos
Cordova
v.
Municipality of San Juan, 2017 WL 6542255, at *9 (D.P.R. 2017)
(quoting Manning v. Boston Med. Ctr. Corp., 725 F.3d 34, 43 (1st
Cir. 2013)).8
The FLSA is clear that “[w]ork not requested but suffered or
permitted is work time.” Manning v. Boston Med. Ctr. Corp., 725
F.3d 34, 44 (1st Cir. 2013) (quoting 29 C.F.R. § 785.11). “Work”,
as
construed
by
the
courts,
tends
to
mean
“all
activities
controlled or required by the employer and pursued necessarily and
primarily for the benefit of [the] employer and [their] business.”
The Court notes that the case at bar bears a striking resemblance to Santos
Cordova v. Municipality of San Juan, 2017 WL 6542255, at *9 (D.P.R. 2017). There
too, canine unit officers averred they worked more than 14 hours in overtime
hours caring for their assigned dogs.
8
Civil No. 17-1961 (RAM)
23
Palmer v. Stewart County School Dist., 178 Fed. Appx. 999, 1005
(11th Cir. 2006) (citation omitted). Here, there can be no doubt
that the work performed in caring for the dogs was to Defendants’
benefit. Both United States Courts of Appeals and District Courts
have held that at least some of the time canine officers spent
caring for their dogs outside of normal work hours constitutes
“work” under the FLSA. See e.g., Brock v. City of Cincinnati, 236
F.3d 793, 804 (6th Cir. 2001); Holzapfel v. Town of Newburgh, N.Y.,
145 F.3d 516, 522 (2d Cir. 1998); Rudolph v. Metropolitan Airports
Comm'n, 103 F.3d 677, 681 (8th Cir. 1996); Martinez v. Hernando
Cty. Sheriff's Office, 2013 WL 12123320, at *2 (M.D. Fla. 2013),
Letner v. City of Oliver Springs, 545 F. Supp. 2d 717, 723 (E.D.
Tenn. 2008); Levering v. District of Columbia, 869 F.Supp. 24, 27
(D.D.C. 1994). The main issue here is therefore not whether the
overtime work in question was “work”, rather, if Defendants knew
that the 3.5 hours allotted to the work were insufficient.
The First Circuit has stated that “an employer's actual or
imputed knowledge [...] is a necessary condition to finding the
employer suffers or permits that work.” Manning, 725 F.3d at 44.
Still, when the issue is regarding work that is performed outside
of the regular employment area, Plaintiffs will need to rely on
Defendant’s constructive knowledge of the hours worked in excess
of their regular shifts to prove that the allotted time was
insufficient. See Holzapfel, 145 F.3d at 524 (“An employer need
Civil No. 17-1961 (RAM)
24
not have actual knowledge of such off-site work; constructive
knowledge
will
suffice.”)
It
is
the
employee’s
burden
to
demonstrate that his employers knew of the overtime work performed.
Thus, a record of alleged “off-the-clock” work alone will not
suffice. Instead, Plaintiffs may provide “proof of a pattern or
practice of employer acquiescence in such work, but plaintiffs may
not merely estimate off-the-clock hours worked without presenting
a showing that [their employer] ‘suffered’ that work.” Andrews v.
Weatherproofing Techs., Inc., 277 F. Supp. 3d 141, 151 (D. Mass.
2017). These half-an-hour per day concessions were afforded to
Plaintiffs according to a letter sent on December 2016 regarding
the following year’s hourly schedule. (Docket No. 25 ¶¶ 23-26).
Plaintiffs acknowledged the contents of the letter and that they
were to get “.5” hours of canine-care per day in their Response.
(Docket No. 35 ¶¶ 23-26). Plaintiffs however had a duty to provide
proof that the 3.5 hours already afforded to them were insufficient
and thus required them to work overtime. They failed to provide
such proof and their omission is compounded by their admission
that they knew that Defendants had hired the Metropolitan Animal
Clinic and the Municipality’s vehicle maintenance service station
for medical and grooming services and for maintenance for all
vehicles
belonging
respectively.
availability
to
the
(Docket
No.
of
services
Municipality’s
35
Police
Department,
¶¶
86-94).
Therefore,
the
providing
vehicle
maintenance
for
Civil No. 17-1961 (RAM)
25
example, a task which Plaintiffs alleged took them 2.5-3 hours to
complete per weekend, heightened the burden on Plaintiffs to
justify their claim that .5 hours of canine care per day was
insufficient.
On the other hand, “[w]ork not requested but suffered or
permitted is work time” if “[t]he employer knows or has reason to
believe that [the employee] is continuing to work.” White v.
Baptist Mem'l Health Care Corp., 699 F.3d 869, 878–79 (6th Cir.
2012) (quoting 29 C.F.R. § 785.11.). To wit, it is also the
employer’s responsibility to keep accurate records of when an
employee is working, either on-site or off. See Tyson Foods, Inc.
v. Bouaphakeo, 136 S. Ct. 1036, 1042 (2016) (quotation omitted)
(“The FLSA also requires an employer to ‘make, keep, and preserve
[...] records of the persons employed by him and of the wages,
hours, and other conditions and practices of employment.’”). A
process wherein employees can report their overtime hours can help
provide the reasonable diligence expected of employers to prove
that they did or did not know about the overtime work performed by
employees. See Garcia v. Draw Enterprises III, LLC, 2018 WL
6045206,
at
establishes
*5
a
(N.D.
Ill.
reasonable
2018).
process
However,
for
an
“if
an
employee
employer
to
report
uncompensated work time, the employer is not liable for non-payment
if the employee fails to follow the established process.” Newsom
v. Detroit Area Agency on Aging, 2018 WL 5617170, at *3 (E.D. Mich.
Civil No. 17-1961 (RAM)
26
2018) (quotation omitted). In the case at bar, Plaintiffs admitted
that they were informed that to get overtime pay they needed to
fill out the “Authorization of Overtime” form. (Docket No. 35 ¶
8). They also admitted that they were aware that “anyone who works
overtime
without
the
corresponding
authorization
will
not
be
credited with the overtime worked,” and moreover, the Municipality
will not have to provide compensatory time or payment for hours
worked over the 480 hours. (Docket No. 35 at ¶¶ 7 and 9). Plaintiffs
nonetheless
also
admitted
that
they
did
not
include
in
any
“Authorization of Overtime” forms the time spent cleaning the
canine unit kennels or assigned vehicles. (Docket No. 35 at ¶¶ 39,
48, 58, 66, 74 and 82).
An employer is also held “liable” if “the employer prevents
or discourages accurate reporting in practice.” Garcia, 2018 WL
6045206,
at
*5
(quotation
omitted).
Likewise,
knowledge
of
overtime work may still be imputed to the employer “when it’s
supervisors
encourage
artificially
low
reporting
or
squelch
truthful reports of overtime worked.” Holt v. Jefferson Cty. Comm.
for Econ. Opportunity, 2019 WL 1239855, at *13 (N.D. Ala. 2019
(citing Bailey v. TitleMax of Georgia, Inc., 776 F.3d 797, 801
(11th Cir. 2015)). Here, Plaintiffs, via one Unsworn Statement
Under Penalty of Perjury by plaintiff Pagán-Porrata, contend that
a Sergeant directed them not to file the Canine Maintenance Hours.
In particular, they stated that “[i]n September 2017, Sergeant
Civil No. 17-1961 (RAM)
27
[sic] Carlos Borges told [the Plaintiffs] to stop turning the
worksheet with Canine Maintenance Hours because the Municipality
was throwing the sheets away.” (Docket No. 35-1 at 2).
A similar situation occurred in Santos-Cordova. In said case,
Plaintiffs similarly asserted via unsworn statements that they
were “prohibited [by an unnamed supervisor] from reporting their
overtime” work performed caring for their police dogs. SantosCordova, 2017 6542255, at *4. The Court however found suspect that
the statements explaining this were “concocted after counsel had
conveniently had a chance to review the MSJ’s arguments in favor
of summary dismissal.” Id. The Court therefore concluded that by
only referencing undefined discussions with unnamed persons at
unspecified times, the statements “definitely appear to have been
tailor-made to surmount the Defendant’s motion, and are thus deemed
a sham.” Santos Cordova, 2017 WL 6542255, at *4.
In the case at bar, as in Santos-Cordova, a review of the
record reveals that the unsworn statement filed at Docket No. 351 also seems to be an attempt to manufacture an issue of fact. As
such, this also raises concerns under the sham affidavit rule. To
determine whether an affidavit is being used to create a material
issue of fact in an attempt to defeat summary judgment, “the court
may consider the timing of the affidavit.” Rodriguez-Soto v.
Presbyterian Med. Anesthesia Grp., 2019 WL 1349991, at *4 (D.P.R.
2019).
Here,
the
unsworn
statement
filed
as
an
exhibit
to
Civil No. 17-1961 (RAM)
28
Plaintiffs’ Response was executed on November 1, 2018 (Docket No.
35-1), four days prior to the filing of Plaintiffs’ Response. The
Motion for Summary Judgment was filed on October 1, 2018 (Docket
No. 25). Moreover, the discovery deadline was September 5, 2019.
(Docket No. 24). Hence, while a party may provide a satisfactory
explanation for a post-summary judgement affidavit, “[f]ollowing
discovery, a party may not use a later affidavit to contradict
facts previously provided to survive summary judgment.” EscribanoReyes v. Prof'l Hepa Certificate Corp., 817 F.3d 380, 385 (1st
Cir. 2016) (quotation omitted). No explanation was made as to why
Plaintiffs waited to file the affidavit until after the summary
judgment motion was filed. The First Circuit has found similar
chronology issues as “probative of the fact that the non-movant
was merely attempting to create an issue of fact.” Orta-Castro v.
Merck, Sharp & Dohme Quimica P.R., Inc., 447 F.3d 105, 110 (1st
Cir. 2006); see also, Torres v. E.I. Dupont De Nemours & Co., 219
F.3d 13, 20 (1st Cir. 2000). This Court previously determined that
a lack of explanation “pushes [a] sworn statement off the table.”
Rodriguez-Soto, 2019 WL 1349991, at *4. Therefore “pursuant to the
sham
affidavit
doctrine,
the
court
strikes
plaintiff’s
declaration” and Plaintiffs’ pleading that were based on the
stricken evidence “will be deemed unsupported.” Id. at *5.
A
review
of
the
record
also
reveals
that
prior
to
the
affidavit filed at Docket No. 35-1, neither Plaintiff Pagán-
Civil No. 17-1961 (RAM)
29
Porrata, nor any other Plaintiff for that matter, had mentioned
that a supervisor such as Sergeant Borges had instructed them to
not file their Canine Maintenance Forms. Hence, this is a new
“fact” for purposes of the record. Before, Plaintiffs had only
stated in their Complaint that Defendants were aware at all times
that they typically worked more hours than their scheduled shifts.
(Docket No. 1 at 60). Moreover, Pagán-Porrata had only stated in
her Answer to Interrogatories dated February 2018 that “[t]he
administrative personnel and our supervisors are aware of the time
we spend working without being compensated because we report it.”
(Docket No. 25-24 at 14). The Court will thus disregard the content
of the unsworn statement as it is “used to support additional facts
purported by the Plaintiffs in the same numbered paragraphs wherein
they
admitted,
denied
or
qualified
the
Defendant’s
proposed
factual statements.” Santos Cordova, 2017 WL 6542255, at *4.
Therefore the Court finds that overtime reporting procedures
were in place for Plaintiffs to report their overtime hours. Other
Plaintiffs
cannot
rely
either
on
Pagán-Porrata’s
unsworn
statement, which the Court already disregarded above, supra, as
alleged proof that they were discouraged from reporting their
overtime hours. Clearly, they did have processes to record their
overtime related to their dog-caring duties as evidenced by the
report of hours worked presented by Defendants, and which was also
included as Plaintiffs’ exhibits. (Docket No. 25-18 to 25-23).
Civil No. 17-1961 (RAM)
30
Additionally, Plaintiffs themselves admitted to not filing the
“Canine Maintenance Hours” form, a form they knew they had to file
if they wanted to recover overtime pay for hours spent caring for
the dogs. (Docket No. 35 at ¶¶ 39, 48, 58, 66, 74 and 82). In the
case at bar, Plaintiffs do not contend they did not know they had
to fill out those forms. On the contrary, they knew they had to
fill them out. (Docket No. 35 at 8). As in Santos-Cordova, here
too
there
was
a
Manual
which
dictated
how
officers
were
to
establish the accrual and use of compensatory time. (Docket No.
30-2). Likewise, in Forrester v. Roth’s I.G.A. Foodliner, Inc.
the United States Circuit Court of Appeals for the Ninth Circuit
determined that if an employee failed to notify its employer or
deliberately prevented them from acquiring knowledge of overtime
work performed, then an employer’s failure to not pay for those
overtime hours did not violate FLSA provisions:
An employer must have an opportunity to comply with the
provisions of the FLSA. This is not to say that an
employer may escape responsibility by negligently
maintaining records required by the FLSA, or by
deliberately turning its back on a situation. However,
where the acts of an employee prevent an employer from
acquiring knowledge, […] the employer cannot be said to
have suffered or permitted the employee to work in
violation. Forrester v. Roth's I. G. A. Foodliner, Inc.,
646 F.2d 413, 414 (9th Cir. 1981).
Even so, just because Plaintiffs failed to report the overtime
hours, does not completely preclude a request for compensation.
Rather, “[e]mployees may [still] recover unpaid wages for overtime
Civil No. 17-1961 (RAM)
31
hours that were not recorded on their time sheets if they can prove
that the employer knew or should have known about the overtime
work through some alternative source.” Woodman v. City of Hazen,
Ark., 2009 WL 2579266, at * 3 (E.D. Ark. 2009) (citing Bailey v.
County of Georgetown, 94 F.3d 152, 157 (4th Cir.1996)). Plaintiffs
however failed to present an “alternative source” which could prove
that Defendants knew or should have known about overtime being
performed. While Plaintiffs attempted to use the hour records to
demonstrate that Plaintiffs’ hours were allegedly miscalculated,
the reports clearly show that all Plaintiffs were recorded as
having performed their 3.5 hours of “dog care hours worked.”
(Docket No. 35-2, 35-3, 35-4, 35-5, 35-6 and 35-7). Plaintiffs
failed to file additional overtime beyond the aforementioned 3.5
hours. They cannot now state that they failed to file those excess
hours because they were supposedly discouraged from doing so. There
is no other evidence in the record which could support this
finding.
In summary, Plaintiffs contend that the 3.5 hours allotted to
dog care a week were insufficient, and they therefore worked
overtime because of it. However, Plaintiffs failed to prove as
much. They also failed to prove that Defendants had constructive
knowledge of the overtime work not being reported by them. Without
more information to justify the alleged 14 hours spent taking care
of their assigned dogs on a weekly basis, the Court recognizes
Civil No. 17-1961 (RAM)
32
that determining the exact hours Plaintiffs spent taking care of
their dogs would be a problematic task. Multiple Courts of Appeals
and District Court cases support such a finding. See e.g., Krause
v. Manalapan Twp., 486 F. App'x 310, 314 (3d Cir. 2012); Brock,
236 F.3d at 803; Holzapfel, 145 F.3d at 526 (“The individual traits
and needs of officers and animals preclude any easy determination
as to what is a “reasonable time” for a K–9 officer to take care
of his dog. Moreover, […] the ranges of time involved in the K–9
compensation cases, suggest no clear-cut answer will be found.”);
Santos Cordova, 2017 WL 6542255, at *13 (quotation and internal
citation omitted) (“It is not enough for plaintiffs to show that
they worked more than agreed. They must show that the agreement
provided an unreasonably short amount of time to perform the
assigned tasks. [...] This they have failed to do.”); Cabrera v.
Town of Lady Lake, Fla., 2013 WL 12092573, at *10 (M.D. Fla. Mar.
28, 2013), aff'd, 556 F. App'x 801 (11th Cir. 2014).
Plaintiffs failed to create a genuine issue of material fact
and thus summary judgment is GRANTED dismissing WITH PREJUDICE
their claims under the FLSA, 29 U.S.C. §201, et seq.
B. Supplemental State Law Claims
The six co-plaintiffs against which the Municipality sought
summary judgment also filed claims grounded on violations to local
labor laws and the Puerto Rico Constitution. Defendants have
requested the dismissal of these claims. (Docket No. 27 at 24-25).
Civil No. 17-1961 (RAM)
33
First Circuit case law is clear that if federal claims are properly
dismissed, as in the case at bar, then a District Court is well
within
its
jurisdiction
discretion
over
to
pending
decline
state-law
to
exercise
claims.
See
supplemental
e.g.,
Massó-
Torrellas v. Municipality of Toa Alta, 845 F.3d 461, 469-70 (1st
Cir. 2017); see also, Rivera-Diaz v. Humana Ins. of Puerto Rico,
Inc., 748 F.3d 387, 392 (1st Cir. 2014) (quoting Carnegie–Mellon
Univ. v. Cohill, 484 U.S. 343, 350 n.7, (1988)) (“[I]n the usual
case in which all federal-law claims are eliminated before trial,
the balance of factors
[...]
will point toward declining to
exercise jurisdiction over the remaining state-law claims.”).
Since all of Plaintiffs’ federal claims have been dismissed and no
other grounds for jurisdiction exist, all supplemental claims
under P.R. Laws Ann. tit. 29, §173 and §273(a), and pursuant to
Article II, Section 16 of the Puerto Rico Constitution, are hereby
DISMISSED WITHOUT PREJUDICE.
V.
CONCLUSION
For the reasons set forth above, the Court GRANTS Defendants'
Motion for Summary Judgment (Docket No. 27). Judgement shall be
entered accordingly.
IT IS SO ORDERED.
In San Juan Puerto Rico, this 27th day of August 2019.
S/ RAÚL M. ARIAS-MARXUACH
United States District Judge
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