Rodriguez v. City of Albuquerque

• Decision Date: 04 December 2009
• Docket Number: No. CIV 07-0901 JB/ACT.,CIV 07-0901 JB/ACT.
• Citation: 687 F. Supp.2d 1270
• Parties: Lawrence RODRIGUEZ, Steven J. Duran, Greg Miera, and Rose Marie Neal, On behalf of themselves and other present and former City employees, Plaintiffs, v. CITY OF ALBUQUERQUE, Defendant.
• Court: U.S. District Court — District of New Mexico

687 F.Supp.2d 1270

Lawrence RODRIGUEZ, Steven J. Duran, Greg Miera, and Rose Marie Neal, On behalf of themselves and other present and former City employees, Plaintiffs, v. CITY OF ALBUQUERQUE, Defendant.

No. CIV 07-0901 JB/ACT.

United States District Court, D. New Mexico.

December 4, 2009.

Paul Livingston, Placitas, NM, and Sam Bregman, Eric Loman, The Bregman Law Firm, P.C., Albuquerque, NM, for Plaintiffs.

Robert M. White, City Attorney, City of Albuquerque, Paula I. Forney, Michael I. Garcia, Assistant City Attorneys, Albuquerque, NM, and Edward W. Bergmann, Seyfarth Shaw, LLP, Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on: (i) the Defendant's Motion for Summary Judgment, filed September 4, 2009 (Doc. 69); and the Plaintiffs' Motion for Summary Judgment and Memorandum in Support, filed September 5, 2009 (Doc. 73). The Court held a hearing on October 21, 2009. The primary issues are: (i) whether, in calculating the "regular rate" of pay for city employees, a concept found in 29 U.S.C. § 207(e), Defendant City of Albuquerque properly divides the total remuneration by the number of hours actually worked by the employee, or whether it should instead use the number of hours in a normal workweek under the applicable collective bargaining agreement ("CBA"); (ii) whether the City's method of calculating the pay for all hours then adding one-half the regular rate for each hour of overtime worked is appropriate, or whether the City must calculate pay for the first forty hours¹ and then calculate overtime at one and one-half times the regular rate for each hour that the employee worked that week beyond forty; (iii) whether the City is correct in excluding from the regular-rate calculation monies paid as buy-back for unused vacation time and sick leave; (iv) whether the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 to 219, automatically incorporates the employee-friendly elements of the underlying employment agreement or, rather, whether overtime under the FLSA and under the employment contract can be determined independently from one another; (v) whether the City improperly grants certain credits against its overtime liability under the FLSA; (vi) whether the Court should award the Plaintiffs additional liquidated damages; and (vii) whether the Court should allow the Plaintiffs to take advantage of the extended three-year statute of limitations because the City's conduct was willful. After considering the stipulated facts, evidence, briefs, and arguments at hearing, the Court has concluded: (i) the proper divisor in the regular-rate equation is the number of hours in a normal, non-overtime workweek, when the parties agree to such number in the employment contract; (ii) because the use of a 0.5 multiplier is not what makes the City's method of calculation improper, the Court will find for the City on this issue; (iii) buy-back monies are remunerations within the meaning of the FLSA and properly included in the regular-rate calculation; (iv) the City's dual-calculation method of determining a city employee's overtime compensation would be proper if it correctly calculated overtime under the FLSA; (v) the Court finds that the City properly grants appropriate credits against its FLSA overtime liability; (vi) the Court will award some liquidated damages to the Plaintiffs; and (vii) the Court finds that the Plaintiffs have failed to prove that the City's violation of the FLSA was willful, and so the Court will apply the two-year statute of limitations in this case. In sum, the Court will grant the Plaintiffs' motion in part and deny it in part, and grant the City's motion in part and deny it in part.

STIPULATED FACTS

The parties stipulate to the following material facts, see Stipulated Facts, filed July 28, 2009 (Doc. 67), to be taken into evidence without further proof. The Court recites word for word, without any change to conform to the Court's style, either in the wording of the stipulation or in the citations, unless indicated otherwise. In addition, the City put forth additional facts that the Court will consider after it sets forth the stipulations.

I. Parties.

1. Plaintiffs in this case allege they are present and former City employees entitled to have their overtime wages calculated in accordance with the provisions of the Fair Labor Standards Act (FLSA) and the applicable collective bargaining agreements.

2. Over 200 individual Plaintiffs, including four named Plaintiffs, have opted in and have been certified as members of this collective action.

3. Defendant the City of Albuquerque ("City") is a municipality and public employer.

II. Procedural Background.

A. This Litigation

4. On September 12, 2007, Plaintiffs Lawrence Rodriguez, Steven J. Duran, Rosemary Neal,² Jason Brown, and Greg Miera, on behalf of themselves and other present and former City employees, filed a Complaint for collective action under 29 U.S.C. § 216(b) ("Section 216(b)") of the FLSA.

5. They allege that the City has not paid certain employees the overtime wages to which they are entitled under the FLSA.

6. Specifically, Plaintiffs allege that they have a right of recovery under the FLSA, 29 U.S.C. § 207(a)(1), for unpaid overtime wages owed to them for hours worked in excess of their normal 40-hour or other regular work week or period.

7. They allege that the City has failed to include all the properly applicable "other compensation" in calculating the "regular rate of pay" of some of its employees, with the result that these employees receive less overtime pay than required by the FLSA.

8. The City calculates the "regular rate of pay" based on the number of hours worked by employees, including overtime hours, rather than by the number of hours in the employees' normal work week; Plaintiffs disagree with this calculation.

9. The City uses a one-half multiplier in calculating the additional over-time pay due; Plaintiffs believe a one-and-one-half multiplier should be used.

10. In addition, they allege that in many cases, the City is incorrectly taking "credits" or "offsets" against overtime pay for holiday, sick time, or other pay which is provided in a union agreement or which is otherwise properly not creditable or chargeable against overtime pay under the provisions of the FLSA.

11. The City has denied any violation of the FLSA.

12. Discovery closed on October 27, 2008. However, neither party has taken any discovery in this case.

13. On November 6, 2008, the City moved for summary judgment on the basis of res judicata or collateral estoppel arguing that the issues in this litigation had already been decided in another case before this court, Chavez v. City of Albuquerque, No. CIV 02-562 JCH/ACT (D.N.M.) ("Chavez"). The Court denied the City's Motion on December 22, 2008, 2008 WL 5978925.

14. On April 8, 2009, Plaintiffs moved for collective action certification.³ On July 15, 2009, the Court granted Plaintiffs' motion, allowing the case to proceed as a collective action.

15. On July 17, 2009, the Court vacated the bench trial scheduled from August 10-12, 2009. It ordered that the Parties submit a statement of stipulated facts and it set a briefing and hearing schedule for motions for summary judgment.

III. City's Rules and Ordinances.

16. The City's Merit System Ordinance, § 3-1-11, provides that "Overtime may be paid by the city for work performed outside of established work hours in accordance with the Fair Labor Standards Act."

17. The City's Personnel Rule 302.2 provides that "when overtime is required for nonexempt employees, compensation must be in accordance with the Fair Labor Standards Act (FLSA) and any applicable collective bargaining agreement."

IV. Collective Bargaining Agreement Provisions.

18. Almost all classified City employees are represented by labor unions and covered by collective bargaining agreements ("CBAs") negotiated between the unions and the City.⁴ These CBAs establish various terms and conditions of employment. Some of the terms and conditions of employment in the CBAs exceed the overtime requirements of the FLSA.

19. For example, the following overtime payments are provided under the CBAs, but are not required under the FLSA:

(a) Overtime pay for work beyond the regular schedule.

(b) Overtime pay for working on a holiday.

(c) Overtime pay for off-shift court appearances for police officers.

(d) Overtime pay caused by counting hours of paid, unworked leave such as sick leave or vacation leave time as hours worked. The CBAs provide compensation for such leave time such as holidays, vacation time and sick leave time. If employees perform work on holidays, they receive premium compensation under their respective union contracts.

20. The normal work week of most City employees is set out in their CBAs. The normal work week for all employees except firefighters is 40 hours per week, consisting of five eight-hour days or four ten-hour days.

A. Albuquerque Police Officers' Association Contract

21. The contract between the Albuquerque Police Officers' Association ("APOA") and the City (... Exhibit 1) provides, under a caption titled, "General Workday Provisions," that the "normal workday shall be eight (8) or ten (10) hours." Under a caption titled, "General Work Week Provisions," it provides that the "normal workweek will be forty (40) hours comprised of either five (5) eight-hour or four (4) ten-hour days." Under a caption titled "Overtime," the contract also provides that "employees shall be entitled to overtime compensation at the rate of time-and-one-half their regular straight-time rate when they perform work in excess of forty (40) hours in any one workweek" and that "for the purpose of computing overtime, paid leave shall be considered time worked, as per Section 2.5 (FLSA)."

22. The contract between the APOA and the City further states, under a separate caption titled, "Fair Labor...