Lemieux v. City of Holyoke

• Decision Date: 28 September 2010
• Docket Number: C.A. No. 08-cv-30038-MAP
• Parties: Jordan LEMIEUX, John Kadlewicz, Joseph O'Connor Chris Butler, and David R. Rex, Jr., et al., Individually and on Behalf of All Other Persons Similarly Situated, Plaintiffs, v. CITY OF HOLYOKE and Holyoke Fire Department, Defendants.
• Court: U.S. District Court — District of Massachusetts

740 F.Supp.2d 246

Jordan LEMIEUX, John Kadlewicz, Joseph O'Connor Chris Butler, and David R. Rex, Jr., et al., Individually and on Behalf of All Other Persons Similarly Situated, Plaintiffs,

v.CITY OF HOLYOKE and Holyoke Fire Department, Defendants.

C.A. No. 08-cv-30038-MAP.

United States District Court,

D. Massachusetts.

Sept. 28, 2010.

Jeffrey S. Morneau, Donohue, Hyland & Donohue, P.C., Holyoke, MA, for Plaintiffs.

Gordon D. Quinn, Layla G. Taylor, Sullivan, Hayes & Quinn, Springfield, MA, for Defendants.

MEMORANDUM AND ORDER REGARDING PLAINTIFFS' MOTIONS FOR PARTIAL SUMMARY JUDGMENT, DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT, DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS, AND PLAINTIFFS' MOTIONS TO STRIKE (Dkt. Nos. 134, 141, 152, 155, 158, 161, 164, 167, 179, and 180)

PONSOR, District Judge.

I. INTRODUCTION

Plaintiffs, Jordan Lemieux, John Kadlewicz, Joseph O'Connor, Chris Butler, and David R. Rex, Jr., (collectively "Plaintiffs"), bring this class action suit against the City of Holyoke and its Fire Department, (collectively, "the City" or "Defendants"), on behalf of themselves and other similarly situated current and former Holyoke firefighters, see 29 U.S.C. § 216(b), alleging violations of the federal Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 et seq., and the Massachusetts Minimum Fair Wages Act, Mass. Gen. Laws ch. 151, §§ 1A and 1B. Plaintiffs seek overtime compensation, including certain contractual wage augments, for hours worked in excess of forty per week during the period from January 21, 2005, to the present.

Currently, there are eight dispositive motions before the court. Plaintiffs have filed six motions for partial summary judgment, each addressing a discrete issue and requesting judgment in Plaintiffs' favor on that issue. (Dkt. Nos. 134, 152, 155, 158, 161 & 164.) Plaintiffs' motions address: (1) the applicability of the FLSA's partial exclusion for municipal employers of fire personnel, 29 U.S.C. 207(k); (2) the need to include certain contractual wage augments in the FLSA's "regular rate" of pay; (3) the applicability of Defendants' laches affirmative defense; (4) the applicability of the doctrines of accord and satisfaction and waiver to Plaintiffs' claims; (5) liquidated damages under the FLSA; and (6) the applicability of Massachusetts Minimum Fair Wage law to municipal employers. Defendants have opposed each of Plaintiffs' motions, and they have filed a cross-motion for partial summary judgment regarding the applicability of the 207(k) partial exclusion (Dkt. No. 167) and a motion for judgment on the pleadings regarding the applicability of Massachusetts Minimum Fair Wage law to municipal employers. (Dkt. No. 141.)

Counsel for the parties appeared for argument on their motions on March 10, 2010, at which time Plaintiffs submitted two motions to strike portions of affidavits submitted by Plaintiffs. (Dkt. Nos. 179 & 180.)

II. PROCEDURAL BACKGROUND

Plaintiffs filed their original complaint on February 27, 2008, (Dkt. No. 1), followed by an amended complaint nearly twenty months later on October 22, 2009. (Dkt. No. 131.) On November 6, 2009, Defendants filed an answer to the amended complaint (Dkt. No. 133) denying the allegations against them, asserting two counter-claims against Plaintiffs, and setting forth thirty affirmative defenses.

III. FACTUAL BACKGROUND

By and large, the relevant background is not in dispute. During the period of January 21, 2005, to the present (hereinafter "the relevant period"), Plaintiffs were employed as firefighters by the City of Holyoke. Through their union membership, Plaintiffs were parties to a collective bargainingagreement ("CBA"), which governed the terms and conditions of their employment with the City. ( See generally Dkt. No. 178, Defs.' Statement of Facts, Ex. 2, the 2006-2009 Collective Bargaining Agreement, (hereinafter the "CBA").)

Under the terms of the CBA, firefighters on the rotating shift typically worked four consecutive days—two day shifts and two night shifts—followed by four consecutive days off. (CBA ¶ 15.01.) Based on this pattern, a firefighter's four-days-on stretch began on a particular day of the week (for example, on a Monday) every fifty-six days. Day shifts were typically ten hours in length while night shifts were fourteen hours. Id. The court accepts, as Plaintiffs assert and Defendants concede, that working within this framework, Holyoke firefighters routinely worked in excess of forty hours a week.

In addition to their usual salaries, the terms of the CBA made Holyoke firefighters eligible, in certain circumstances, to receive additional remuneration, including: training stipends; "out of grade" pay; longevity pay; payments for working the night before, day of, or night of major holidays; "buy-backs" for accrued but unused vacation, holiday, personal, and sick leave pay; detail pay; Student Awareness of Fire Education ("SAFE") pay; and clothing allowances.

IV. EVIDENTIARY OBJECTIONS

As noted, Plaintiffs make a number of evidentiary objections concerning affidavits filed by Defendants in support of their motions and include them in motions to strike. (Dkt. Nos. 179 & 180.) For the most part, the court has not relied on the evidence under objection. Where this Order indicates that such evidence was relied upon, the applicable portion of the motions to strike are denied.

V. DISCUSSION

A. Legal Standard.

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits ... 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). An issue is "genuine" if "the evidence about the fact is such that a reasonable jury could resolve the point in favor of the nonmoving party," and a fact is "material" if "it is one that might affect the outcome of the suit under the governing law." Velez-Rivera v. Agosto-Alicea, 437 F.3d 145, 150 (1st Cir.2006) (quotation omitted).

The moving party bears the initial burden of demonstrating the absence of genuine issues of material fact. The burden then "shifts to the nonmoving party, with respect to each issue on which he has the burden of proof, to demonstrate that a trier of fact reasonably could find in his favor." Sands v. Ridefilm Corp., 212 F.3d 657, 661 (1st Cir.2000) (quoting DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir.1997)). The opposing party "cannot rely on an absence of competent evidence, but must affirmatively point to specific facts that demonstrate the existence of an authentic dispute." McCarthy v. Nw. Airlines, Inc., 56 F.3d 313, 315 (1st Cir.1995). The court must then "view the facts in the light most favorable to the non-moving party" and draw "all reasonable inferences in that party's favor." Pac. Ins. Co. v. Eaton Vance Mgmt., 369 F.3d 584, 588 (1st Cir.2004) (quotation omitted).

B. Application.

1. The 29 U.S.C. 207(k) Partial Exclusion.

Under section 207(a)(1) of the FLSA, non-exempt employees must ordinarilyreceive compensation at a rate not less than "one and one-half times [their] regular rate" for hours worked in excess of forty per week. 29 U.S.C. § 207(a)(1). A limited exemption from the FLSA's overtime requirements is available, however, to municipal employers of "law enforcement personnel or firefighters" under subsection 207(k) of the statute. 29 U.S.C. § 207(k). When applicable, this limited exemption allows cities and towns "a higher threshold number of hours that public safety personnel can work in a twenty-eight day work period—or a proportional number of hours in a shorter work period of at least seven days—before these employees become entitled to overtime compensation." Calvao v. Town of Framingham, 599 F.3d 10, 13 (1st Cir.2010). Thus, a municipally employed firefighter who works an established work period of twenty-eight days is only entitled to receive overtime compensation for hours worked in excess of 212 during that period. 29 C.F.R. § 553.230(a). Similarly, a municipally employed firefighter who works an established work period of eight days is only entitled to receive overtime compensation for hours worked in excess of 61 during that period. 29 C.F.R. § 553.230(c).

To claim a section 207(k) exemption, an employer need only demonstrate: (1) that its employees are engaged in "fire protection ... [or] law enforcement activities" within the meaning of the statute, and (2) that it has adopted a qualifying "work period"—defined by regulation as "any established and regularly recurring period of work which is at least seven but no more than twenty-eight consecutive days in length." 29 C.F.R. § 553.224(a).

It is well established that "[t]he work period requirement is ordinarily not a high hurdle." O'Brien v. Town of Agawam, 350 F.3d 279, 291 n.21 (1st Cir.2003) (overruled on other grounds by 14 Penn Plaza LLC v. Pyett, --- U.S. ----, 129 S.Ct. 1456, 1463, 173 L.Ed.2d 398 (2009)). "Virtually any bona fide, fixed, recurring period of between 7 and 28 days will suffice." Id.

Conceding that Plaintiffs were engaged in fire protection activities within the meaning of the statute, Plaintiffs argue that Defendants are not entitled to claim the 207(k) exemption because Defendants did not adequately "announce, establish, adopt, or implement a 207(k) work period." (Dkt. No. 165, Pls.' Mem. at 3.) In their cross-motion, Defendants argue that members of the rotating shift at the Holyoke Fire Department are subject to a qualifying eight-day work period pursuant to § 207(k).

Plaintiffs' arguments are largely foreclosed by the First Circuit's recent opinion in Calvao, 599 F.3d at 13. There, the court clarified that a municipality need not give notice to its officers before taking advantage of the 207(k) exemption. Id. Essentially, public employers can establish a 207(k) work period either by declaring their intent to do so or simply by demonstrating that their employees "actually...