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West v. City of Holly Springs

United States District Court, N.D. Mississippi, Oxford Division

May 3, 2019




         This cause comes before the court on defendant City of Holly Springs' motions for summary judgment as to plaintiffs' FLSA wage claims. Plaintiffs have responded in opposition to the motions, and this court, having considered the memoranda and submissions of the parties, concludes that they are well taken and should be granted.[1]

         On April 30, 2019, this court conducted a hearing on the summary judgment motions relating to plaintiffs' FLSA wage claims in this case. It is quite unusual for this court to conduct such a hearing, since it rules upon the vast majority of summary judgment motions based solely upon the parties' briefing. In explaining its reasons for setting this hearing, this court wrote, in an April 23, 2019 order, that:

[T]his court wishes to ascertain the extent to which plaintiffs agree with defendant's expert Joseph E. Hines that they were actually overpaid in this case. It appears from plaintiffs' briefing that they do not seriously contest Hines' findings in this regard, but they stop short of categorically agreeing with his assertions in this regard.
This court has determined that its consideration of these issues would be assisted by a hearing in which it can ascertain the true nature of the facts in this regard.
It appears from plaintiffs' briefing that their FLSA claims have now morphed into allegations that they were issued their overtime payments too late. This court can discern two problems with this belated claim, namely 1) that it was not asserted in any of the multiple amended complaints in this case and 2) persuasive authority, in the form of the Second Circuit's decision in Rogers v. City of Troy, 148 F.3d 52, 55 (2nd Cir. 1998) suggests that the FLSA “prompt payment” provision does not apply in a factual scenario such as this one. In Rogers, the Second Circuit held that the prompt payment provision does not apply in cases where an employer changes its pay schedule so long as this change: “(a) is made for a legitimate business purpose; (b) does not result in an unreasonably long delay in payment; (c) is intended to be permanent; and (d) does not result in violation of the substantive minimum wage or overtime provisions of the FLSA.” Id. at 60. If the record in this case indicates that plaintiffs were, in fact, overpaid in this case, and that they merely incurred brief delays in receiving their overpayments, then this court is inclined to agree with the Second Circuit that this is not the sort of factual scenario which the FLSA was enacted to address. This court concludes that an evidentiary hearing would be helpful in ascertaining the true facts in this regard, and it will therefore use the time previously scheduled before Judge Percy for this purpose.

[Slip op. at 1-2].

         At the (very brief) April 23 hearing, plaintiffs' counsel conceded that his clients were, in fact, overpaid in this case, and he likewise confirmed that their FLSA “prompt payment” claim was their sole remaining wage-based claim in this case. This concession resolves what this court had regarded as the heart of this case. This court notes that, at the hearing, plaintiffs' counsel spoke quite approvingly of the report of defendant's expert Hines, who calculated that plaintiffs were overpaid by the following amounts: Daniel Green, $4, 796.05; Janet Power, $2, 912.36; Michael Perkins, $5, 519.85; Filando Marion, $4, 222.68; Dianechia Patterson, $721.18; Bobby West, $1, 372.47 and Coya Jackson, $2, 522.63. Hines found that these overpayments were the result of the City automatically crediting officers an extra six regular payroll hours per pay period. Hines Declaration at ¶ 9. According to Hines, these six hours “[were] not deducted from the total overtime hours that the payroll system automatically compute[d] by designating any hours in excess of 43 as overtime, ” thus resulting in overpayments. Id.

         Having ascertained the status of their FLSA wage claims, this court gave plaintiffs an opportunity at the hearing to present any proof regarding their “prompt payment” claims, including by showing exactly how long a delay they might each have incurred in receiving their (overpayments. Plaintiffs offered no evidence on this issue, and their counsel indicated that it was “difficult to ascertain” from the record exactly how long these delays might have been. Counsel appeared to believe that many of these delays might have merely involved payments being carried over to the next two-week pay period, but he indicated that some of the other delays may have been longer. However, counsel provided no specific evidence in support of this view. At the hearing, plaintiffs' counsel did not request an opportunity to amend his complaint to assert a “prompt payment” claim, even though, as quoted above, this court had specifically cited the absence of any such claim as a potentially fatal weakness. Likewise, plaintiffs did not seek yet another continuance at the hearing, indeed, they provided no arguments responsive to this court's stated concerns that they had waited too long to assert their “prompt payment” claims.

         Plaintiffs' belated unveiling of their “prompt payment” claims seems particularly inexcusable in this case, considering that they base their theory upon calculations performed by Hines which were first produced to them on April 3, 2017. [Doc. #22]. Since that time, plaintiffs have been given two opportunities to amend their complaint, and in neither amended complaint did they indicate that they now conceded their underpayment claims and were instead proceeding under a “prompt payment” theory. True enough, there is certain language in the Third Amended Complaint which takes issue with their payments being “rolled over” into subsequent weeks, [Third Amended Complaint at 11] but this court does not regard this vague language as, by any means, clearly setting forth the “prompt payment” claim which plaintiffs eventually raised in response to the summary judgment motion. Indeed, even in their summary judgment briefing, plaintiffs merely argue that the practice of rolling over hours to a subsequent pay period “appears to” violate the FLSA's prompt payment requirement. [Jackson brief at 16]. This is hardly a ringing assertion of an FLSA violation, quite apart from the late date at which it was raised.

         This court notes that plaintiffs' original complaint filed in 2016 included this very same language about the “rolling over” of payments, [Complaint at 6], well before the disclosure of Hines' expert report which serves as the basis for their “prompt payment” claims. This suggests to this court that even plaintiffs themselves did not subjectively have a “prompt payment” claim in mind when they included this language. To the contrary, it appears that this language simply describes the City's pay policy which, as discussed below, served to move municipal employees to a bi-monthly pay schedule. Moreover, plaintiffs' initial discovery disclosures, in which they set forth the damages which they claimed, merely make reference to alleged underpayments, which they now concede did not occur. For example, plaintiff Michael West, in listing “any category of damages” he claimed, asserted as follows in his initial disclosures:

Bobby West: Total of overtime hours worked for which he was not compensated from August 2014-August 2016 (actually only compensated for 47 overtime hours during said period) was 613 hours at time and a half rate ($23.82) equals $16, 102.32 total compensation due.

[Docket entry 120, exhibit 5, pages 7-8]. Once again, plaintiffs were required to inform defendant of “any category” of damages they claimed, and it would have been a simple matter for them to assert that, in addition to their alleged underpayments, certain payments they did receive were improperly delayed. No. such language is present, however.

         In the court's view, it is appropriate to review the vague language in plaintiffs' complaint in conjunction with their initial disclosures, to determine whether they provided defendant with fair notice of any “prompt payment” claim. Indeed, a primary purpose of such initial disclosures is to flesh out any unclear allegations in the complaint, so that the defendant can know exactly what sort of claims and damages the plaintiffs are asserting. In their initial disclosures, each of the plaintiffs claimed thousands of dollars (and often tens of thousands of dollars) in alleged underpayments, even though plaintiffs' counsel conceded at the April 30 hearing that he no longer alleged that they suffered any actual damages. Plaintiffs' FLSA wage claims thus strike this court as being ones which simply collapsed under the scrutiny of the ...

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