Balt. City Lodge No. 3 of the Fraternal Order of Police, Inc. v. Balt. Police Dep't, Civil Action No. 1:16-cv-3309-ELH

CourtUnited States District Courts. 4th Circuit. United States District Court (Maryland)
Writing for the CourtEllen L. Hollander United States District Judge
Decision Date28 July 2017
Docket NumberCivil Action No. 1:16-cv-3309-ELH


Civil Action No. 1:16-cv-3309-ELH


July 28, 2017


This case concerns a dispute as to the regular rates of pay for various members of the Baltimore City Police Department. The rate of pay is significant because it is an element of the proper calculation of overtime pay for the police officers.

Gene S. Ryan, on behalf of the Baltimore City Lodge No. 3 of the Fraternal Order of Police, Inc. ("FOP") and its "active, retired and former Members," as well as Lieutenant Kenneth B. Butler, Sergeant William E. MacDonald, and Detective Jonathan S. Glazerman, plaintiffs, filed a collective action and request for declaratory judgment against the Baltimore City Police Department ("BPD") and the Mayor and City Council of Baltimore City ("City"). ECF 1. In a First Amended Complaint (ECF 23, "Amended Complaint"), supported by seven exhibits ( ECF 20-2 to ECF 20-8),1 plaintiffs allege violations of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et seq.; the Maryland Wage and Hour Law ("MWHL"), as amended, Md. Code

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(2016 Repl. Vol.), §§ 3-401 et seq. of the Labor and Employment Article ("L.E."); and the Maryland Wage Payment and Collection Law ("MWPCL"), as amended, L.E. §§ 3-501 et seq.

The Amended Complaint contains three counts. As to Count 1, the FSLA count, plaintiffs allege four distinct violations of the FLSA. Plaintiffs first allege that defendants have incorrectly calculated their overtime wages by using the wrong "hours worked" figure as the denominator in computing the regular rate of pay. ECF 23, ¶ 56; see also id., ¶¶ 56-60. Second, they allege that defendants failed to include shift differential compensation in computing plaintiffs' regular rate of pay. Id. ¶¶ 61-65. Third, plaintiffs allege that defendants failed to include benefit payments in computing plaintiffs' regular rate of pay. Id. ¶¶ 66-69. Fourth, they allege that defendants retaliated against plaintiffs for pursuing their unpaid overtime wages. Id. ¶¶ 70-73. As noted, the Amended Complaint also raises related claims under the MWHL and the MWPCL. Id. ¶¶ 85, 94.

Defendants have moved to dismiss as to one of the alleged FLSA violations. ECF 25 (the "Motion to Dismiss" or "Motion").2 In particular, defendants urge dismissal of the claim that, in computing the regular rate of pay for purposes of calculating overtime compensation, defendants utilize the incorrect "hours worked" figure as the "divisor." ECF 25 at 2. In addition, defendants move to dismiss the state law claims in Counts II and III. Id. at 8. Plaintiffs oppose the Motion to Dismiss (ECF 29, "Opposition"), and defendants have replied. ECF 32 ("Reply").

No hearing is necessary to resolve the Motion. See Local Rule 105.6. For the reasons that follow, I shall deny the Motion to Dismiss with respect to the "hours worked" FLSA claim, but grant the Motion as to the two claims brought under Maryland law.

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I. Factual Background3

The individual plaintiffs are police officers currently employed by the BPD, with long records of service. ECF 23, ¶¶ 8-10. The FOP "is a Maryland corporation that is designated as the exclusive representative of Baltimore Police Officers holding the ranks of police officer, police agent, flight officer, police sergeant, police lieutenant, and detective." Id. ¶ 7. The City is a chartered Municipal Corporation under Md. Code (2013 Repl. Vol.), §§ 4-103, 201, 304, et seq. of the Local Government Article. Id. ¶ 13. The City "is responsible for the operation" of the BPD. Id. According to the suit, the City is an "employer" as defined by the FLSA. Id.

Two "Memoranda of Understanding" between the BPD and the FOP are central to the litigation. ECF 23, ¶ 22. They pertain to wages and schedules of certain categories of Baltimore City police officers (the "Officers"). Id. The first Memorandum of Understanding ("MOU I") covers "Unit I employees," which include "Police Officers, Police Agents, and Flight Officers." Id. The second Memorandum of Understanding ("MOU II") covers "Unit II employees," which include "Police Sergeants and Police Lieutenants." Id. Both MOU I and MOU II went into effect on July 1, 2013, and allegedly "remain in full force and effect." Id., ¶ 22.4

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MOU II, portions of which are docketed at ECF 20-2, specifies that the FOP is the exclusive bargaining agent for all sergeants and lieutenants in the BPD. ECF 20-2 at 7.5 Curiously, the parties did not submit MOU I to the Court. Nevertheless, the Amended Complaint states: "Both MOUs include the same shift descriptions and distinguish between Non-Patrol and Patrol Assignments.[]" ECF 23, ¶ 23; see id. ¶¶ 25, 33.

Article 11 of MOU II is titled "OVERTIME AND HOURS OF WORK". ECF 20-2 at 8 (italicization omitted). It is allegedly identical to language contained in MOU I. ECF 23, ¶¶ 25, 33. Article 11 of MOU II states, in part, ECF 20-2 at 8-9:

B. Hours of Work and Overtime for Non-Patrol Assignments
1. Employees may not be required to work more than five (5) work days in the established seven (7) day work period (Sunday to Saturday) at straight time rates.

2. The workday for employees in non-patrol assignments shall consist of eight (8) hours and thirty-six (36) minutes, including roll call and a ½ -hour lunch. All time worked in excess of eight (8) hours and thirty-six (36) minutes or in excess of five (5) days shall be compensated at overtime rates.

3. Roll call will begin twenty-one (21) minutes before the eight (8) hour tour. No additional compensation shall be paid for work performed during the first fifteen (15) minutes after the tour. Accordingly, employees in Non-Patrol Assignments shall be compensated for 8.33 hours each day.6

C. Hours of Work and Overtime for Patrol Assignments
1. The work schedule for employees in the Neighborhood Patrol Bureau shall be four (4) days of work in a calendar workweek

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(Sunday-Saturday) at 10.6 hours (10 hours and 36 minutes) per day. All time worked in excess of ten (10) hours and thirty-six (36) minutes or in excess of four (4) days shall be compensated at overtime rates . . . .

2. The work period for patrol employees shall be 28 days.

* * *

5. Roll call will begin at the top of the hour for all employees in the Neighborhood Patrol Bureau. Employees working in the Neighborhood Patrol Bureau (4-day week) shall be paid for 10 hours and 24 minutes (10.41 hours) each day.

* * *

C. [sic] Provisions Applicable to Both Non-Patrol and Patrol Assignments

1. All days and hours of paid leave shall be treated as days and hours worked.

2. The Employer shall not vary or rearrange an employee's scheduled tour of duty hours to avoid the payment of overtime when hours of overtime are previously worked unless agreed to at the sole option of the employee.

* * *

Plaintiffs assert that "[s]ome time before September 2014, the FOP brought to Defendants' attention" the claim that "Officers were not being paid an overtime rate of one and one-half times Officers' regular rate of pay." ECF 23, ¶ 48. In response, defendants "corrected its miscalculation" by paying the Officers one and one-half times the Officers' regular rate of pay, presumably as calculated by plaintiffs. Id., ¶ 49. On October 17, 2014, the FOP filed a grievance against defendants. Id., ¶ 50; see also ECF 20-6. The grievance stated, in part, ECF 20-6 at 1:

The FOP is filing this grievance on behalf of the bargaining units, Unit I and II who had their overtime rate of pay improperly calculated by the City of Baltimore

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(COB). The COB agreed they had been miscalculating the overtime rate of pay, in fact, on September 19, 2014 the COB corrected their error and began paying FOP members the correct rate of overtime pay. The FOP is requesting the COB to recalculate all affected member's overtime rate of pay for the last three year[s] prior to correcting their mistake.

According to plaintiffs, in "retaliation" for the filing of the grievance, "Defendants . . . reverted Officers' overtime rates back to what they were before the pay period beginning on August 21, 2014," a rate allegedly less than one and one-half times their regular rate of pay." ECF 23, ¶ 51. Plaintiffs claim that by doing so, defendants "continued their conduct of willfully and knowingly violating Federal and State wage laws." Id., ¶ 52.

Prior to March 15, 2016, the FOP "again" contacted defendants in regard to the calculation of their overtime pay. Id., ¶ 54. Defendants responded to plaintiffs' inquiry by email on March 15, 2016. Id.; see ECF 20-8. The email stated, id. at 2:

As the payroll system was inconsistent with the MOU, adjustments were made. The workday used in the calculation was adjusted to be eight (8) hours and thirty-six (36) minutes (or 8.6 hours) . . . , not the eight (8) hours and twenty (20) minutes (or 8.33 hours) previously used. The current paycheck reflects this recalculation of overtime rates.

When calculating the overtime rate, one should divide the annual salary by the annual workday hours (8.6 hours X 10 working days per pay period X 26 pay periods).

To calculate the regular rate for purposes of overtime compensation, defendants "use the 8.6 or 10.6 hour workday as the divisor." ECF 25 at 6. Plaintiffs argue that defendants' computation method violates the FLSA. They agree with defendants that the "regular rate" of pay is defined based upon the provisions of the MOU. ECF 23, ¶ 77. But, they allege that, to calculate the regular rate of pay, the appropriate divisors are 8.33 or 10.41, because the Officers' shifts "consisted of actual hours worked of either 8.33 or 10.41 hours." ECF 23, ¶ 56. Plaintiffs

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acknowledge that, "in addition to these hours, the parties agreed that Officers may be responsible for contributing a maximum of 11 or 15 minutes of additional unpaid time (i.e., 8.6 or 10.6...

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