Dambreville v. City of Boston, Civil Action No. 94-12401-MLW.
| Citation | 945 F.Supp. 384 |
| Decision Date | 21 November 1996 |
| Docket Number | Civil Action No. 94-12401-MLW. |
| Parties | Yves DAMBREVILLE, Plaintiff, v. CITY OF BOSTON, Defendant. |
| Court | U.S. District Court — District of Massachusetts |
David B. Rome, Angoff, Goldman, Manning, Pyle, Wanger & Hiatt, P.C., Boston, MA, for Plaintiff.
Robert Boyle, City of Boston Law Department, City Hall, Boston, MA, for Defendant.
MEMORANDUM AND ORDER ON MOTION OF DEFENDANT, CITY OF BOSTON, FOR SUMMARY JUDGMENT (# 42)
Plaintiff Yves Dambreville instituted this action under the Fair Labor Standards Act (hereinafter, "FLSA" or "the Act") to recover overtime wages for weeks in which he allegedly worked in excess of forty hours while employed in the Mayor's Office of Neighborhood Services for the City of Boston. After an opportunity for extensive discovery, the defendant City of Boston filed the instant motion for summary judgment arguing that the plaintiff falls under the administrative employee and/or the personal staff exemptions to the Act and, therefore, the defendant is entitled to the entry of judgment as a matter of law. With the plaintiff having submitted a memorandum of law and other materials in opposition, the dispositive motion is now in a posture for decision.1
The following evidentiary submissions shall be considered in deciding the motion for summary judgment: The Plaintiff's Answers To Defendant's First Set Of Interrogatories (# 40 Appendix To Motion Of The Defendant, City Of Boston, For Summary Judgment, Exh. B); the Deposition of Yves Dambreville (# 40, Exh. C); to the extent that they are not disputed, the Supplemental Response Of The Defendant, City Of Boston, To The Plaintiffs (sic) First Set Of Interrogatories (# 40, Exh. D); to the extent that it is undisputed, the Deposition of Michael L. Kineavy (# 40, Exh. E); to the extent that they are undisputed, facts set forth in the parties' Statement Of Material Facts (# 31); and to the extent that it is not contradicted by his deposition, the affidavit filed by Dambreville (# 46). When the term "record" is used hereinafter, it shall refer to this body of material.
Respecting Dambreville's affidavit, it should be noted at the outset that in both his memorandum in opposition (# 44) as well as his Local Rule 56.1 Statement (# 45), Dambreville relies on the affidavit which was submitted after his deposition had been taken and after the defendant's summary judgment motion had been filed. In comparable circumstances, the First Circuit wrote as follows:
Plaintiff also contends that summary judgment on the assumption of risk defense was improper because he presented a sworn affidavit in which he stated that he had no knowledge at the time of the accident of the ladder's propensity to slip. This evidence, submitted after defendants had filed their motions for summary judgment, stands in direct contradiction to his deposition testimony.
When an interested witness has given clear answers to unambiguous questions, he cannot create a conflict and resist summary judgment with an affidavit that is clearly contradictory, but does not give a satisfactory explanation of why the testimony is changed. 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2726, at 30-31 (2d ed. Supp.1994). See Slowiak v. Land O'Lakes, Inc., 987 F.2d 1293, 1297 (7th Cir.1993); Trans-Orient Marine v. Star Trading & Marine, 925 F.2d 566, 572-73 (2d Cir.1991); Davidson & Jones Dev. v. Elmore Dev., 921 F.2d 1343, 1352 (6th Cir.1991).
Colantuoni v. Alfred Calcagni & Sons, Inc., 44 F.3d 1, 4-5 (1 Cir., 1994); see also Bohn v. Park City Group, Inc., 94 F.3d 1457, 1463 (10 Cir., 1996); Flynn v. Menino, 944 F.Supp. 81, 88 n. 14 (D.Mass., 1996); Hayes v. Henri Bendel, Inc., 945 F.Supp. 374, 377 n. 5 (D.Mass, 1996).
Thus, to the extent that the plaintiff's affidavit is found to be directly at odds with his deposition testimony, it shall be disregarded for Dambreville has offered no explanation whatever to explain any incongruity.2
Yves Dambreville (hereinafter, "Dambreville") was a detective with the Boston Police Department from 1988 through at least March, 1994. (Statement of Material Fact, # 31 at 18, ¶ 1) While working as a detective, he was also active in helping communities organize crime watches and other neighborhood-based initiatives. Through this latter work he met then City Councillor Raymond Flynn (hereinafter, "Flynn" or "the Mayor"). (Appendix to the Motion of the Defendant, City of Boston, for Summary Judgment, # 40, Exh. C, Deposition of Yves Dambreville at 2) Flynn mentioned that he was impressed by Dambreville's work and later, after Flynn was elected Mayor of Boston, he recruited the plaintiff for a position as a coordinator and liaison in the Mayor's Office of Neighborhood Services (hereinafter, "the Office"). At a subsequent face-to-face interview, Dambreville accepted the Mayor's offer. (Id.) He then remained with the Office even after Flynn stepped down and Thomas Menino became Mayor of Boston. (Id. at 19)
The mission of the Office, which is comprised of seventeen staff members, including a director, associate director, two regional directors, seven coordinators, and six liaisons, is to "try to bring City Hall closer to the neighborhoods and to bring the neighborhoods closer to City Hall." (# 40, Exh. D, Supplemental Response Of The Defendant, City of Boston, To The Plaintiffs (sic) First Set Of Interrogatories at 4, ¶ 2 and 7, ¶ 2) As Michael L. Kineavy (hereinafter, "Kineavy"), the Director of the Office, stated in his deposition, although the Office is not the Mayor's formal policy making body, as is his cabinet, "[i]n terms of how the mayor formulates policy or gives directives, I would say in many instances people from the Office of Neighborhood Services help to shape that." (# 40, Exh. E, Deposition of Michael L. Kineavy at 2) Kineavy continued by explaining that although the Mayor's cabinet may assist him in developing broad policy for the city in general, it is the Office that helps the Mayor discern "what works and what doesn't" on the streets. (# 40, Exh. E at 3-4) (Id.)
Coordinators are each responsible for one or more neighborhoods and are expected to be the Mayor's "eyes and ears," to represent him and to "speak on his behalf" in these areas. (# 40, Exh. C at 3, 5, 9, 10, 15, 19, and 23; Exh. D at 6, ¶ 9; and Exh. E at 16) In the plaintiff's words, coordinators generally "go out in the neighborhood and articulate the views, the philosophy of that administration, and to provide services to that constituency." (# 40, Exh. C at 19) The record suggests that coordinators have a significant amount of involvement and influence in their assigned neighborhoods. In Dambreville's deposition, for example, he mentions that at one point members of the Boston City Council were "outraged" with the Mayor's Office because they felt that:
the coordinator job was [sic] City Councillor job, we are taking the job away from them. They feel the constituency come [sic] to us instead of to them. The influence we had to get things done, they did not have that influence. They wanted to abolish that office because we were duplicating the work or they were duplicating our work.
# 40, Exh. C at 14.
Liaisons, rather than being charged with a geographically distinct neighborhood, are assigned to specific ethnic communities throughout the city. For example, the staff at the Office included liaisons to the Chinese, Cape Verdean, and other groups of a common linguistic or cultural heritage.
There is some disagreement regarding the characterization of Dambreville's day-to-day work, but on the record presented, there is no genuine dispute over any material fact. When he was hired, the plaintiff was made the Mattapan and Dorchester Neighborhood Coordinator and the Mayor's Liaison to the Caribbean and Haitian communities. (# 40, Exh. C at 2-3) Throughout his employment with the Office, Dambreville remained officially employed by, and drew his paycheck from, the Boston Police Department. (Id. at 11) However, during this period he was "detailed out" to the Office and at no point attended a police roll call at a Boston Police Department office. (Id. at 4; # 31 at 4, ¶¶ 9-11) For his work, Dambreville was paid in excess of $900 per week throughout the three years of this assignment. (# 38, ¶ 6; # 31, ¶ 41)
At his deposition, Dambreville indicated some of the reasons the Mayor was interested in hiring him to the Office and the expectations that would come with the job:
There were two people who had assumed the neighborhood coordinator [sic] for the Mattapan/Dorchester area [but] ... they were not able to provide the type of vision the Mayor wanted. They could not bring the people out of the communities together. And when the Mayor had [sic] conversation with me, he had seen my work in the past ... and see [sic] me working with the people and they trust me as a policeman, and asking [sic] me to represent him and to bring the community together, to attend the meetings and to speak on his behalf.
# 40, Exh. C at 3.
Much of what the record reveals Dambreville's actual work to have involved is consistent with the general description of coordinator and liaison responsibilities laid out above, as well as the expectations the Mayor set out at the job interview. He went into the community and regularly attended neighborhood meetings, representing the Flynn Administration by answering questions and gathering information about issues of concern to residents. It appears that the plaintiff not only attended these meetings but also had a hand in organizing them since a majority of the flyers and...
To continue reading
Request your trial
-
Alberti v. County of Nassau
...courses of conduct and acting or making a decision after the various possibilities have been considered." Dambreville v. City of Boston, 945 F.Supp. 384, 394 (D.Mass.1996) (citing 29 C.F.R. § 541.207(a)). This "implies that the person has the authority or power to make an independent choice......
-
Schwind v. Ew & Associates, Inc.
...Wright, 2001 WL 91705, at *2 (citing Martin v. Malcolm Pirnie, Inc., 949 F.2d 611, 614 (2d Cir.1991); Dambreville v. City of Boston, 945 F.Supp. 384, 391 (D.Mass.1996)). In addition, a claim of exemption under the FLSA is an affirmative defense that, pursuant to Fed. R. Civ. P. 8(c), must b......
-
Schwind v. Ew & Associates, Inc., 03 CIV. 9904(WCC).
...Wright, 2001 WL 91705, at *2 (citing Martin v. Malcolm Pirnie, Inc., 949 F.2d 611, 614 (2d Cir.1991); Dambreville v. City of Boston, 945 F.Supp. 384, 391 (D.Mass.1996)). B. Commissioned Salesman Defendant contends that although this Court concluded that during the period plaintiff was an in......
-
Kavanagh v. City of Phoenix, Civ.A. 98-0377-PHXSMM.
...administrative employee). The latter involves "representing" the department and "negotiating" on its behalf. See Dambreville v. Boston, 945 F.Supp. 384, 387 (D.Mass. 1996) (Collings, M.J.) (police detective who worked as neighborhood liaison for mayor was exempt Finally, Kavanagh qualifies ......