Vidmar et al v. City of Milwaukee

Filing 68

DECISION AND ORDER signed by Magistrate Judge Nancy Joseph. IT IS ORDERED that the defendant's motion to dismiss pursuant to Fed. R. Civ. P. 52(c) is GRANTED. IT IS FURTHER ORDERED that defendant's motion for leave to file a sur-reply (Docket # 63) and plaintiff's motion for leave to file a sur-reply (Docket # 66) are DENIED. (cc: all counsel) (asc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
CHRISTOPHER E. MANNEY,
Plaintiff,
v.

Case No. 17-CV-223

CITY OF MILWAUKEE,
Defendant.
DECISION AND ORDER ON DEFENDANT’S MOTION TO DISMISS
Christopher E. Manney is a former officer of the Milwaukee Police Department
(“MPD”). Manney sues the City of Milwaukee under the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. § 201, et seq., alleging that the City failed to pay compensatory time
upon his termination of employment from the MPD. The City moved for summary
judgment on Manney’s claim, arguing it was barred by the FLSA’s two year statute of
limitations. Manney opposed the motion, arguing that the applicable statute of limitations is
three years because the City’s conduct was willful.
I denied the City’s motion, finding there was a genuine issue of material fact as to
whether the City’s action was willful. (Docket # 41.) A trial to the Court was held on
February 12, 2018. At trial, the City moved to dismiss Manney’s complaint pursuant to Fed.
R. Civ. P. 52(c), arguing that Manney failed to establish damages. The motion was taken
under advisement and the parties were ordered to file post-trial submissions. For the reasons
explained below, the City’s motion to dismiss is granted and the action is dismissed.

BACKGROUND
At issue in this case are twenty-two hours of banked compensatory time that the City
failed to pay to Manney after his employment ended with the MPD. (Transcript of Feb. 12,
2018 Court Trial (“Tr.”) at 135, Docket # 57.) During trial, the City moved to dismiss
Manney’s complaint at the conclusion of Manney’s case-in-chief pursuant to Fed. R. Civ. P.
52(c) on the grounds that Manney failed to meet his burden of proving damages. (Tr. 134.)
Specifically, the City argued that Manney failed to differentiate between compensatory time
earned under the FLSA and compensatory time earned under the collective bargaining
agreement between the City and the Milwaukee Police Association. (Id.) I denied the
motion and allowed the City to present its case. (Tr. 142.) The City renewed its motion at
the conclusion of its case-in-chief. (Tr. 167.) The motion was taken under advisement and
the parties were given an opportunity to submit relevant authority on the issue. (Tr. 170.)
ANALYSIS
Under Fed. R. Civ. P. 52(c), if a party has been fully heard on an issue during a court
trial and the court finds against the party on that issue, the court may enter judgment against
the party on that claim. The court has discretion to wait until the close of evidence to render
judgment.
Manney alleges that he was denied compensatory time under 29 C.F.R. § 553.27.
(Second Am. Compl., Docket # 16.) The FLSA provides that upon termination of
employment, an employee must be paid for unused compensatory time earned after April
14, 1986. 29 C.F.R. § 553.27. Pursuant to 29 U.S.C. § 553.230(b), “[f]or those employees
engaged in law enforcement activities . . . who have a work period of at least 7 but less than
28 consecutive days, no overtime compensation is required under section 7(k) until the
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number of hours worked exceeds the number of hours which bears the same relationship to
171 as the number of days in the work period bears to 28.” The MPD utilizes a fourteen day
work period. (Tr. 100-01, 144, Exh. 1002 at 8.) The regulation provides a chart showing that
for a fourteen day work period, overtime compensation (in premium pay or compensatory
time) is required for all hours worked in excess of eight-six hours. § 553.230(c).
Thus, the FLSA requires payment of overtime compensation for all hours worked in
excess of eight-six hours during any fourteen day work period. Law enforcement employees
“may receive compensatory time off in lieu of overtime pay for hours worked in excess of
the maximum for their work period as set forth in § 553.230.” § 553.231(a). Section
553.28(a) provides that:
Compensatory time which is earned and accrued by an employee for
employment in excess of a nonstatutory (that is, non-FLSA) requirement is
considered “other” compensatory time. The term “other” compensatory time
off means hours during which an employee is not working and which are not
counted as hours worked during the period when used. For example, a
collective bargaining agreement may provide that compensatory time be
granted to employees for hours worked in excess of 8 in a day, or for working
on a scheduled day off in a nonovertime workweek. The FLSA does not
require compensatory time to be granted in such situations.
The regulations provide that the “requirements of section 7(o) of the FLSA, including the
limitations on accrued compensatory time, do not apply to ‘other’ compensatory time as
described above.” § 553.28(e).
The collective bargaining agreement provides that the normal hours of work for
employees covered by the agreement is work shifts of eight consecutive hours which, in the
aggregate, results in an average normal work week of forty hours. (Exh. 10 at 41, Article 14,
Section 1.) The agreement also provides that overtime consists of all authorized assignments
outside of the regularly scheduled eight-hour shift. (Exh. 10 at 42, Article 15, Section 1.)
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Thus, an officer who works eighty-six hours in a fourteen day work period would be entitled
to six hours of overtime under the collective bargaining agreement; however, the officer
would not be entitled to anything under the FLSA in terms of compensatory time. (Tr. 11718.)
The parties both present hypothetical scenarios to argue whether it is mathematically
possible for a police officer to earn FLSA-required compensatory time in a given pay period
without earning any “other” compensatory time. (Def.’s Br. at 4-5, Docket # 60; Pl.’s Resp.
Br. at 5-6, Docket # 62; Def.’s Reply Br. at 2-4, Docket # 64.) None of this analysis,
however, answers the question of whether Manney’s twenty-two hours of compensatory
time actually fall under the FLSA. “An employee bears the burden of proving that she
performed overtime work for which she was not properly compensated.” Brown v. Family
Dollar Stores of IN, LP, 534 F.3d 593, 594 (7th Cir. 2008) (citing Anderson v. Mt. Clemens
Pottery Co., 328 U.S. 680, 686–87 (1946)). Additionally, “once a plaintiff establishes a
violation of the FLSA, the plaintiff must establish damages, and that the [sic] task is not a
difficult one where the employer has kept time records in compliance with the requirements
of the FLSA.” Id. at 595. The general rule that damages must not be uncertain and
speculative also applies. Id.
However, in cases where the employer fails to keep proper records as required by the
FLSA, the employee is allowed to prove damages under a relaxed evidentiary standard. The
Brown court stated that “Anderson recognized that where an employer failed to keep the
proper and accurate records required by the FLSA, the employer rather than the employee
should bear the consequences of that failure. To place the burden on the employee of
proving damages with specificity would defeat the purpose of the FLSA where the
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employer’s own actions in keeping inadequate or inaccurate records had made the best
evidence of such damages unavailable.” Id.
Manney argues that the rule against uncertain and speculative damages applies only
to situations where the fact of damage itself is uncertain, citing Anderson. (Pl.’s Resp. Br. at
6.) Specifically, Manney cites the following quotation from Anderson: “[n]or is such a result
to be condemned by the rule that precludes the recovery of uncertain and speculative
damages. That rule applies only to situations where the fact of damage is itself uncertain.”
328 U.S. at 688. Manney argues that he was certainly damaged by the City’s refusal to pay
his banked compensatory time. (Pl.’s Resp. Br. at 7.) Thus, he argues that he need not prove
his damages with specificity.
In Anderson, the Court stated that an employee who brings suit under the FLSA has
the burden of proving that he performed work for which he was not properly compensated.
328 U.S. at 686-87. However, the Court also noted that the FLSA imposes a duty on the
employer to keep proper records of wages, hours, and other conditions and practices of
employment. Id. at 687. The Court explained that “[w]hen the employer has kept proper
and accurate records the employee may easily discharge his burden by securing the
production of those records. But where the employer’s records are inaccurate or inadequate
and the employee cannot offer convincing substitutes a more difficult problem arises.” Id.
The Court continues that:
The solution, however, is not to penalize the employee by denying him any
recovery on the ground that he is unable to prove the precise extent of
uncompensated work . . . [i]n such a situation we hold that an employee has
carried out his burden if he proves that he has in fact performed work for
which he was improperly compensated and if he produces sufficient evidence
to show the amount and extent of that work as a matter of just and reasonable
inference. The burden then shifts to the employer to come forward with
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evidence of the precise amount of work performed or with evidence to
negative the reasonableness of the inference to be drawn from the employee’s
evidence. If the employer fails to produce such evidence, the court may then
award damages to the employee, even though the result be only approximate.
Id. at 687-88. The Court stated that the “employer cannot be heard to complain that the
damages lack the exactness and precision of measurement that would be possible had he
kept records in accordance with [the FLSA].” Id. at 688. The Court then states that “[n]or is
such a result to be condemned by the rule that precludes the recovery of uncertain and
speculative damages. That rule applies only to situations where the fact of damage is itself
uncertain.” Id. The Court continues:
But here we are assuming that the employee has proved that he has performed
work and has not been paid in accordance with the statute. The damage is
therefore certain. The uncertainty lies only in the amount of damages arising
from the statutory violation by the employer. In such a case “it would be a
perversion of fundamental principles of justice to deny all relief to the injured
person, and thereby relieve the wrongdoer from making any amend for his
acts.”
Id. (quoting Story Parchment Co. v. Paterson Parchment Co., 282 U.S. 555, 563 (1931)). Thus,
Manney’s quotation from Anderson is taken out of context. Anderson does not relieve a
plaintiff from meeting his initial burden of demonstrating damages under the FLSA. Rather,
Anderson provides a lessened evidentiary standard for a plaintiff to prove damages in
situations where the employer failed to keep accurate records in compliance with the FLSA.
Manney argues that the lessened evidentiary standard articulated in Anderson should
apply in this case. He cites to the fact that in the City’s original answer to his complaint, it
asserted Manney had forty-six hours of banked compensatory time at the time of his
termination of employment and in the City’s answer to Manney’s second amended
complaint, it stated the amount was twenty-two hours. Manney argues that the “only
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plausible basis for such confusion is lack of proper/accurate record keeping. Whether it is
classified as error, confusion, or mistake, it certainly calls into question the accuracy of the
City’s records themselves.” (Pl.’s Resp. Br. at 10-12.) But Manney offers speculation, not
evidence, in support of his argument that the City’s employment records failed to comply
with the FLSA. Compare Manney’s speculation to Brown, where the Seventh Circuit found
that the plaintiff presented evidence that her employer’s records were not in compliance
with the FLSA:
First, Brown introduced evidence that the records were accurate when
submitted by employees, but were subsequently altered by management prior
to issuance of the paychecks. Specifically, Brown testified in her deposition
that managers, district managers, and assistant district managers could
manipulate the records of times worked in the computer system. She testified
that as a manager, she personally observed employees paychecks that were
not reflective of the times in the printouts and e-mails that she had sent to
payroll. She further declared that when she reported that a person’s check was
short, she was given the response that they were not going to get paid.
Finally, Brown also testified that she had the same experience when LaTasha
Holder was the store manager, with Brown’s own paycheck not reflecting the
hours on the printout.
534 F.3d at 595-96. Because Manney has presented no evidence that the City’s record
keeping failed to comply with the FLSA, Manney is not entitled to the relaxed evidentiary
standard articulated in Anderson. Manney faults the City for raising this issue for the first
time at trial. While it would have saved the parties and the Court resources had the issue
been raised earlier in this case, Manney cites to no authority stating that it is procedurally
improper to raise the issue at this juncture. Moreover, it is Manney’s burden to prove his
case—including damages.

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Manney must come forward with evidence to establish his damages under the FLSA.
Manney relies solely on the testimony of MPD Payroll Supervisor Cynthia Ratliff. During
Manney’s case-in-chief, Ratliff testified as follows:
Q:

So you were aware of the obligation to pay banked comp time upon
termination of employment, correct?

A:

Yes.

Q:

You just didn’t know that there was a regulation that required you to
do it?

A:

Correct.

Q:

Let’s talk about Officer Manney’s comp time. I understand from your
reading the regulation that it applies to comp time earned after April
14th, 1986, correct?

A:

Yes.

Q:

All of Manney’s comp time would therefore -- was earned after that
point in time, was it not?

A:

Yes.

Q:

So his 22 hours of banked comp time was subject to that regulation,
correct?

A:

Yes.

Q:

But the City didn't pay the comp time when he was terminated, did it?

A:

No.

Q:

In fact, the City has still not paid the banked comp time, correct?

A:

Correct.

(Tr. 23-24.) Manney’s reliance on this portion of Ratliff’s testimony ignores her subsequent
testimony during the City’s case-in-chief. Ratliff testified that the MPD differentiates
between compensatory time earned as a result of contractual overtime from compensatory
time earned as a result of the FLSA. More importantly, she also testified that without
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running a specific query, she could not tell if Manney’s twenty-two hours were contractual
hours or FLSA hours. (Tr. 153.)
The City argues that Ratliff’s earlier testimony that Manney’s twenty-two hours of
banked compensatory time was subject to the FLSA was a response to counsel’s question
regarding whether all of Manney’s banked compensatory time was hours earned after April
14, 1986. (Def.’s Br. at 7.) Manney argues that this reading of Ratliff’s testimony is not
credible and that Ratliff’s subsequent testimony does not call into question her earlier
testimony that the twenty-two hours were covered by the regulation. (Pl.’s Resp. Br. at 9.)
He states that Ratliff was “certain that the 22 hours were covered under the regulation. The
only thing she was uncertain about is whether any portion of those hours were NOT covered
under the Act.” (Id.) (emphasis in original).
Manney misreads Ratliff’s subsequent testimony. Ratliff testified unequivocally that
she could not tell which portion of the twenty-two hours was FLSA and which portion was
contractual. (Tr. 153.) She also explained that from payroll’s perspective of writing a check
to Manney for his twenty-two hours owed, it did not matter to payroll whether all or some
of the hours came from the FLSA. (Tr. 155-56.) Thus, Ratliff was just looking at the balance
owed at the time of termination (twenty-two hours) and could not say for sure which part of
that twenty-two hours was contractual and which part was FLSA related. (Tr. 155.)
Finally, Ratliff testified that if she ran a query, she would be able to separate out
FLSA hours from contractual hours. But simply looking at the twenty-two hours total, she
could not tell which hours potentially fell under the FLSA. (Tr. 153.) On this testimony,
Manney argues for an opportunity to go back and obtain the evidence necessary to try to
prove his case. Manney faults the City for not running this query and counsel stated at the
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end of trial that he would ask for the ability to have the query run to determine this. (Tr.
168.) Again, proving damages is the plaintiff’s burden. Manney should have requested this
information from the City during discovery. Manney may fault the City for not raising this
issue earlier in the proceeding, but ultimately it was Manney’s burden to prove his case, not
the City’s. Accordingly, on this record, I find that Manney has failed to prove that any of his
twenty-two hours of banked compensatory time fell under the FLSA. As Manney has failed
to prove damages under the statute, his cause of action under the FLSA fails and judgment
will be entered in favor of the defendant. Given this finding, I need not address the parties’
statute of limitations arguments.
ORDER
NOW, THEREFORE, IT IS ORDERED that the defendant’s motion to dismiss
pursuant to Fed. R. Civ. P. 52(c) is GRANTED.
IT IS FURTHER ORDERED that defendant’s motion for leave to file a sur-reply
(Docket # 63) and plaintiff’s motion for leave to file a sur-reply (Docket # 66) are DENIED.
IT IS FURTHER ORDERED that the clerk of court will enter judgment in favor of
the defendant and against the plaintiff. This action is dismissed.

Dated at Milwaukee, Wisconsin this 21st day of May, 2018.
BY THE COURT:
s/Nancy Joseph
NANCY JOSEPH
United States Magistrate Judge

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