Heder v. City of Two Rivers, 00-C-0274.

CourtUnited States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
Writing for the CourtAdelman
Citation149 F.Supp.2d 677
PartiesChristopher J. HEDER, Plaintiff, v. CITY OF TWO RIVERS, Defendant.
Docket NumberNo. 00-C-0274.,00-C-0274.
Decision Date12 June 2001
149 F.Supp.2d 677
Christopher J. HEDER, Plaintiff,
v.
CITY OF TWO RIVERS, Defendant.
No. 00-C-0274.
United States District Court, E.D. Wisconsin.
June 12, 2001.

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Steven R. Olson, Manitowoc, WI, for plaintiff.

Everett E. Wood, Milwaukee, WI, for defendant.

DECISION AND ORDER

ADELMAN, District Judge.


I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Christopher Heder worked as a firefighter for defendant City of Two Rivers, and worked overtime hours to receive paramedic training that defendant required. Plaintiff asserts that defendant paid him less overtime than required by the Fair Labor Standards Act (FLSA), 29 U.S.C. § 207(k), and recouped training expenses from his final wages pursuant to a training repayment agreement but in violation of Wis. Stat. § 109.03. Defendant counter-claims for remaining training expenses. Suit was initially filed in Manitowoc County Circuit Court, and removed to this court based upon federal question jurisdiction. Federal law governs the FLSA claims, and Wisconsin law governs all other claims. Defendant now moves for summary judgment and plaintiff counter-moves for partial summary judgment on the issue of liability.

Plaintiff was employed by defendant from January 24, 1994 until August 13, 1999, when he resigned and went to work as a firefighter for another city. Between February and August 1997, all City of Two Rivers firefighters, including plaintiff, received mandatory paramedic training. In addition, plaintiff received refresher paramedic training in February and May 1999. The parties' first dispute is what overtime pay plaintiff was entitled to receive for this training under the FLSA.

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The second dispute is whether plaintiff is contractually obliged to reimburse defendant for costs associated with his paramedic training. On its face, a memorandum of agreement (MOA) created a training repayment agreement that requires plaintiff to repay defendant for costs associated with his training, because he voluntarily resigned within three years of beginning the training. The parties dispute whether the MOA is in force and applies to plaintiff, and if so, whether the training repayment agreement violates the FLSA.

The third dispute is whether, under the FLSA and Wisconsin law, defendant was entitled to recover partial repayment from plaintiff in the fashion that it did. After plaintiff notified defendant that he was resigning, defendant withheld all money, nearly $2,300, from plaintiff's final three weeks of pay (and accrued vacation pay) to recoup part of the more than $7,600 that it alleged was due. Plaintiff asserts that this conduct violated Wis. Stat. § 109.03. In addition, although the parties did not brief the issue, it is apparent that defendant's conduct in this regard also implicates the FLSA. I may grant summary judgment based upon a legal argument that the moving party did not raise, so long as judgment is not based upon the non-moving party's failure to support its factual position with adequate evidence. Bd. of Nat'l Missions of Presbyterian Church in the United States v. Smith, 182 F.2d 362, 364-65 (7th Cir.1950); Shurr v. A.R. Siegler, Inc., 70 F.Supp.2d 900, 911 n. 6 (E.D.Wis.1999).

II. SUMMARY JUDGMENT STANDARD

Summary judgment is required "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c). The mere existence of some factual dispute does not defeat a summary judgment motion; "the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis omitted). For a dispute to be genuine, the evidence must be such that a "reasonable jury could return a verdict for the nonmoving party." Id. For the fact to be material, it must relate to a disputed matter that "might affect the outcome of the suit." Id.

In evaluating a motion for summary judgment, the court must draw all inferences in a light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). However, it is "not required to draw every conceivable inference from the record—only those inferences that are reasonable." Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir.1991).

The fact that both parties have moved for summary judgment, and thus both parties simultaneously argue that there is no genuine issue of fact, does not establish that a trial is unnecessary or empower me to enter judgment as I see fit. 10A Charles Alan Wright, Arthur R. Miller and Mary Kay Kane, Federal Practice & Procedure § 2720 at 327-28 (3d ed.1998). I may grant summary judgment only if one of the moving parties is entitled to judgment as a matter of law on the basis of the material facts not in dispute. Mitchell v. McCarty, 239 F.2d 721, 723 (7th Cir.1957). Cross-motions for summary judgment do not convert a dispute into a question of law if material factual questions are involved and additional evidence may be adduced at trial which would

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be helpful in the disposition of the case. M. Snower & Co. v. United States, 140 F.2d 367 (7th Cir.1944). The proper procedure is to assess the merits of each summary judgment motion independently. Each party, as a movant for summary judgment, bears the burden of establishing that no genuine issue of material fact exists and that it is entitled to a judgment as a matter of law. The fact that one party fails to satisfy that burden on its own motion does not automatically indicate that the opposing party has satisfied its burden and must be granted summary judgment on the other motion. 10A Wright et al. § 2720 at 335.

III. ANALYSIS

A. Overtime Compensation

1. Applicability of State Notice of Claim Statute to Federal FLSA Claims

Defendant contends that plaintiff's FLSA claim is barred because he did not file a timely notice of claim pursuant to Wis. Stat. § 893.80. This statute provides that no action may be brought against a governmental subdivision, such as a municipality, unless a claimant files a written claim within 120 days of the event giving rise to the claim. Wis. Stat. Ann. § 893.80(1)(b) (West Supp.2000). Plaintiff filed his notice of claim in September 1999, long after the 120-day notice of claim period for any claims arising from 1997. Defendant accordingly contends that any such claims are barred.

However, state procedural rules may not be used to defeat a federal right. Brown v. W. Ry. Co. of Ala., 338 U.S. 294, 296, 70 S.Ct. 105, 94 L.Ed. 100 (1949). In Felder v. Casey, 487 U.S. 131, 108 S.Ct. 2302, 101 L.Ed.2d 123 (1988), the Supreme Court squarely held that non-compliance with the very statute at issue here, § 893.80, did not bar claims brought under federal law. Felder governs the present case. Congress enacted the FLSA to promote and maintain a standard of living necessary for workers' health, efficiency, and general well-being, 29 U.S.C. § 202(a), and granted workers a two-year statute of limitations (three years for willful violations), 29 U.S.C. § 255(a). Non-compliance with a state notice of claim statute does not bar FLSA claims against governmental subdivisions (or, at any rate, against municipal corporations or other governmental entities which are not arms of a state, Alden v. Maine, 527 U.S. 706, 756, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999)). See also Mitchell v. La Barge, 257 A.D.2d 834, 684 N.Y.S.2d 10, 11 (App. Div.1999) (holding that, under Felder, FLSA claim against municipality was not barred by New York State notice of claim statute).1

2. FLSA Overtime Requirements

Under the FLSA, employers must pay non-exempt employees overtime at one and one-half times their regular rate ("time-and-a-half") for all hours in excess of specified "maximum hour" limits. 29 U.S.C. § 207(a)(1). Public agencies employing law enforcement personnel and

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firefighters may set a work period of between 7 and 28 days, and the Department of Labor establishes the relevant maximum hours thresholds. 29 U.S.C. § 207(k). Defendant's work period is 27 days, and the corresponding maximum hours threshold is 204 hours. 29 C.F.R. § 553.230(c) (2000). (This corresponds to approximately 52.9 hours per week.) Thus, plaintiff was entitled to time-and-a-half for all hours worked in excess of 204 hours per 27-day work period.

Defendant used the so-called "California plan," under which employees work three 24-hour shifts each nine-day duty cycle (with one day on, one day off, one day on, one day off, one day on, and four days off). There were thus three full duty cycles each 27-day work period, and each firefighter worked nine 24-hour shifts every 27 days, for a total of 216 hours per 27-day work period. (This corresponds to 56 hours per week.) Defendant acknowledges that it was required to pay overtime for the difference between 204 and 216 hours in each 27-day work period; and plaintiff has no dispute with defendant's computation of his time-and-a-half for those hours.

The parties disagree over how plaintiff's time-and-a-half for overtime hours beyond 216 hours should have been computed. The dispute hinges upon what plaintiff's salary paid for. Three types of salary described in Department of Labor regulations are relevant here: "flat salary," "fluctuating workweek," and "variable workweek."2 Employees receive a fixed salary under all three methods. Flat-salary employees' salary is for a regular number of hours per workweek; fluctuating workweek employees' salary is for a fluctuating number of hours per workweek; and variable workweek employees' salary is for a variable number of hours up to an agreed number of hours per week. 29 C.F.R....

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7 practice notes
  • Middleton v. Hartman, No. 00SC809.
    • United States
    • Colorado Supreme Court of Colorado
    • 15 Abril 2002
    ...our holding in the decisions of other courts that have considered this issue and have held similarly. In Heder v. City of Two Rivers, 149 F.Supp.2d 677, 683 (E.D.Wis.2001), the court held that the plaintiff's failure to comply with the same Wisconsin notice-of-claim statute that was at issu......
  • Bland v. Edward D. Jones & Co., Case No. 18-cv-1832
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • 19 Marzo 2019
    ...validity of an agreement between the City of Two Rivers and the city's firefighters under Wisconsin law. Heder v. City of Two Rivers , 149 F.Supp.2d 677 (E.D. Wis. 2001) ; Heder , 295 F.3d at 778, 780–83. As part of the agreement in Heder , Two Rivers agreed to pay for the city's firefighte......
  • Finsel v. Hartshorn, Case No. 00-CV-2239.
    • United States
    • United States District Courts. 7th Circuit. United States District Courts. 7th Circuit. Central District of Illinois
    • 25 Abril 2002
    ...does not establish that a trial is unnecessary or empower this court to enter judgment as it sees fit. See Heder v. City of Two Rivers, 149 F.Supp.2d 677, 682 (E.D.Wis.2001). Summary judgment may be granted only if one of the moving parties is entitled to judgment as a matter of law on the ......
  • Gilbertson v. City of Sheboygan, Case No. 15–C–139
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
    • 5 Febrero 2016
    ...However, another judge in this district has held that § 893.80 cannot stand as a bar to FLSA claims. See Heder v. City of Two Rivers, 149 F.Supp.2d 677 (E.D.Wis.2001) (judgment 165 F.Supp.3d 747 vacated on other grounds) (citing Felder v. Casey, 487 U.S. 131, 108 S.Ct. 2302, 101 L.Ed.2d 123......
  • Request a trial to view additional results
8 cases
  • Middleton v. Hartman
    • United States
    • Supreme Court of Colorado
    • 15 Abril 2002
    ...for our holding in the decisions of other courts that have considered this issue and have held similarly. In Heder v. City of Two Rivers, 149 F.Supp.2d 677, 683 (E.D.Wis.2001), the court held that the plaintiff's failure to comply with the same Wisconsin notice-of-claim statute that was at ......
  • Bland v. Edward D. Jones & Co.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • 19 Marzo 2019
    ...validity of an agreement between the City of Two Rivers and the city's firefighters under Wisconsin law. Heder v. City of Two Rivers , 149 F.Supp.2d 677 (E.D. Wis. 2001) ; Heder , 295 F.3d at 778, 780–83. As part of the agreement in Heder , Two Rivers agreed to pay for the city's firefighte......
  • Finsel v. Hartshorn, Case No. 00-CV-2239.
    • United States
    • United States District Courts. 7th Circuit. United States District Courts. 7th Circuit. Central District of Illinois
    • 25 Abril 2002
    ...does not establish that a trial is unnecessary or empower this court to enter judgment as it sees fit. See Heder v. City of Two Rivers, 149 F.Supp.2d 677, 682 (E.D.Wis.2001). Summary judgment may be granted only if one of the moving parties is entitled to judgment as a matter of law on the ......
  • McClain v. Cape Air
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • 22 Mayo 2023
    ...damages” equivalent to overtime wages for training and paramedic premium pay received. Heder v. City of Two Rivers (Heder I), 149 F.Supp.2d 677, 688 (E.D. Wis. 2001), vacated and remanded, 295 F.3d 777. On appeal, the Seventh Circuit upheld the enforceability of training repayment provision......
  • Request a trial to view additional results

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