Nickell, Eugene et al v. PGA Inc.

Filing 141

OPINION AND ORDER denying 133 Motion for Reconsideration; accepting 139 , 140 Stipulations of Dismissal of count III. Signed by District Judge William M. Conley on 2/25/19. (jat)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
ERIC SCHILLING, BLAINE KROHN,
and ERIK SINCLAIR,
Plaintiffs,

v.

OPINION AND ORDER
16-cv-202-wmc

PGA INC.,
Defendant.

In a prior opinion and order, the court granted summary judgment to defendant
PGA, Inc., on plaintiffs’ class and collective action claims. (10/23/18 Op. & Order (dkt.
#132).)

Plaintiffs had asserted:

(1) violations of state law and the FLSA based on

defendants’ failure to include the “cash fringe” payment in the overtime rate calculation;
and (2) a violation of state law based on defendant’s practice of calculating overtime using
the rate of pay for the hours actually worked during overtime, rather than a straight time
average rate. The court found, neither theory of recovery was supported by the applicable
law. (Id.) Before the court now is plaintiffs’ motion for reconsideration, arguing that these
rulings constitute a manifest error of law under Federal Rule of Civil Procedure 59. (Dkt.
#133.) Because plaintiffs’ motion falls well short of satisfying the standard of Rule 59, the
court will deny it as well.

OPINION
In this same case, the court previously set forth the standard for reviewing a motion
for reconsideration. (6/20/17 Op. & Order (dkt. #108) 2-3.) “To prevail on a motion for
reconsideration under [Rule 59(e)], the movant must present either newly discovered

evidence or establish a manifest error of law or fact.” Oto v. Metro. Life Ins. Co., 224 F.3d
601, 606 (7th Cir. 2000) (citation omitted). “A ‘manifest error’ is not demonstrated by
the disappointment of the losing party. It is the ‘wholesale disregard, misapplication, or
failure to recognize controlling precedent.’” Id. (citation omitted). Consistent with this
standard, Rule 59(e) is not meant to allow the parties “merely to relitigate old matters.”
Diebitz v. Arreola, 834 F. Supp. 298, 302 (E.D. Wis. 1993). Nor may a party use Rule
59(e) to “advance arguments that could or should have been presented to the district court
prior to the judgment.” Popovits v. Circuit City Stores, Inc., 185 F.3d 726, 729 (7th Cir.
1999).
Nevertheless, plaintiffs seek reconsideration of all three of the court’s principal
rulings at summary judgment.

First, with respect to their state law claim based on

defendant’s failure to include the cash fringe payment in the overtime calculation, plaintiffs
contend that the court erred by failing to consider the definition of hourly rate of pay under
Wis. Stat. § 66.0903(4). As an initial matter, plaintiffs failed to develop any theory of
liability based on this statute. Indeed, the only reference to § 66.0903 in their briefs is to
the private right of action provision under subsection 11. Moreover, there is no longer a
subsection 4 in the current version of § 66.0903. 1 Instead, in their briefs and in oral

From the court’s research, subsection (4) required payment of 1.5 times “hourly basic rate of pay”
for hours worked in excess of 40 hours on prevailing wage jobs. Even if relevant, moreover, this
requirement does not answer the question of what constitutes “hourly basic rate of pay.” Instead,
as explained in the court’s prior opinion and order, Wis. Stat. § 103.49(b), and in turn Wis. Admin.
Code. DWD § 290.05, expressly governs overtime pay calculations for prevailing wage jobs.
Regardless, plaintiffs could have, but failed to, develop any argument based on Wis. Stat.
§ 66.0903(4) in their briefing or at the hearing on summary judgment, thereby rendering relief
under Rule 59(e) inappropriate.

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argument to the court, plaintiffs’ theory of liability entirely rested on the appropriate
definition of “hourly rate of pay” under Wis. Admin. Code DWD § 290.05, the specific
provision governing overtime payments for prevailing wage jobs.
Regardless, the court did address in its opinion and order the statutory definition of
“hourly basic rate of pay” in Wis. Stat. § 103.49(2), which the parties agreed governs
prevailing wage jobs. Based on the inclusion of the language “and any other bona fide
economic benefits, whether paid directly or indirectly” -- language plaintiffs conveniently
failed to include in their quote of this section in the motion for reconsideration (see dkt.
#134 at 5) -- the court found that the statute and regulations contemplate exclusion of the
cash fringe payment from the hourly basic rate of pay.
Finally, even if the court were to consider the merits of plaintiffs’ new argument in
their motion for reconsideration invoking § 66.0903(a), plaintiffs have failed to explain
how the court’s interpretation of “hourly basic rate” under § 103.49(2) and the appropriate
DWD regulations constitutes a manifest error of law, in light of the fact that there is no
caselaw on this theory of liability.
Second, plaintiffs challenge the court’s conclusion that the FLSA does not require
inclusion of cash fringe payments in determining the “regular rate of pay.” Specifically,
plaintiffs argue that the court should have concluded that these payments are required to
be included in the definition of “regular rate of pay” because they constitute remuneration
for employment. Unlike their new state law argument, plaintiffs made this very argument
at summary judgment, and the court already rejected it. As the court previously explained,
it makes far more sense to look to state law to define “regular rate of pay” given that
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plaintiffs’ claims concern prevailing wage jobs, which is after all a category of work entirely
defined by state law. And since state law does not require cash fringe payments to be
included in the overtime premium calculation, the court found no such requirement under
federal law, or, at the very least, found that plaintiffs failed to support this theory
adequately. By plaintiffs simply regurgitating these same arguments in their motion for
reconsideration, they have certainly offered no basis for reconsideration, much less
identified a manifest error of law, nor could they, given that there is no caselaw on these
claims.
Third, plaintiffs seek reconsideration of this court’s finding that plaintiffs failed to
demonstrate that an employer is required under state law to use the straight time average
rate -- rather than the rate of pay during overtime hours -- in calculating overtime pay. In
its opinion and order, the court actually recognized that plaintiffs may have individualized
claims based on defendant’s failure to reach an agreement to pay overtime using the rate
of pay for work performed during those hours. Because plaintiffs were pursuing this claim
as a class, however, the theory of liability must be amenable to class-wide proof -- in other
words, proof that the only acceptable method of calculating overtime under Wisconsin law
for the class as a whole was the straight time average rate method.
In their motion for summary judgment, plaintiffs argued that there were no
agreements or understandings with employees to pay overtime based on the rate of pay
worked during the overtime hours, and, therefore, the claim for recovery was amenable to
class-wide proof. The problem is that plaintiffs failed to direct the court to any facts in
support. Perhaps plaintiffs could have developed this argument and facts in support of this
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theory at summary judgment, and they simply failed to do so, but a motion for
reconsideration does not provide a do-over. To the contrary, plaintiffs’ opportunity to
“put up or shut up” was at summary judgment. See Nichols v. Nat’l Union Fire Ins. Co. of
Pittsburgh, PA, 509 F. Supp. 2d 752, 760 (W.D. Wis. 2007) (“[S]ummary judgment is ‘not
a dress rehearsal or practice run,’ but the ‘put up or shut up moment’ in which a proponent
of facts must show what evidence it has to convince a trier of fact to accept its version of
events.”) (quoting Schacht v. Wis. Dep’t of Corr., 175 F.3d 497, 504 (7th Cir. 1999)).
Moreover, the court can now take judicial notice that in a companion case,
defendant PGA put forth evidence that it had provided advanced notice of its intent to pay
employees on at least some prevailing wage jobs at the rate of pay during overtime hours
(e.g., the rate of pay for work completed on Friday). See Sinclair v. PGA, Inc., No. 17-cv224-wmc, slip op. at *12 (W.D. Wis. Dec. 12, 2018) (dkt. #106). At minimum, plaintiffs
have still failed to direct the court to any evidence in support of its claim that this theory of
liability could be adjudicated on a class-wide basis, even putting aside the fact that the
evidence was not newly discovered.
Finding no basis for reconsideration, the court will deny plaintiff’s motion. In
addition to these class and collective action claims, plaintiffs Schilling and Krohn also
pursued individual claims based on allegations that they were misclassified as subjourney
sheet metal workers in violation of state law. The parties, however, have filed stipulations
to dismiss those individual claims. (Dkt. ##139, 140.) Accordingly, as set forth below,
the court will direct entry of judgment on the three class and collective actions claims,
dismiss the individual claims, and close this case.
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ORDER
IT IS ORDERED that:
1) Plaintiffs’ motion for reconsideration (dkt. #133) is DENIED.
2) The parties’ stipulations of dismissal of count III (dkt. ##139, 140) are
ACCEPTED and the remaining individual claims are dismissed with prejudice.
3) The clerk’s office is directed to enter final judgment in defendant’s favor on the
three class and collective action claims as set forth in the court’s opinion and
order on the parties’ cross-motions for summary judgment (see 10/23/18 Op. &
Order (dkt. #132) Order ¶ 7).
Entered this 25th day of February, 2019.
BY THE COURT:

/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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