Visco v. Aiken Cnty.

• Decision Date: 26 September 2013
• Docket Number: Civil Action No. 1:11–01428–JMC.
• Citation: 974 F.Supp.2d 908
• Court: U.S. District Court — District of South Carolina
• Parties: Mark VISCO and Christopher Watson, individually and on behalf of all other similarly-situated individuals, Plaintiffs, v. AIKEN COUNTY, SOUTH CAROLINA, Defendant.

974 F.Supp.2d 908

Mark VISCO and Christopher Watson, individually and on behalf of all other similarly-situated individuals, Plaintiffs,

v.AIKEN COUNTY, SOUTH CAROLINA, Defendant.

Civil Action No. 1:11–01428–JMC.

United States District Court,

D. South Carolina,

Aiken Division.

Sept. 26, 2013.

Miles Lavan Green, Jr., Richard Wern Lawyers, North Charleston, SC, Nekki Shutt, Brian Matthew Lysell, Callison Tighe and Robinson, Columbia, SC, for Plaintiffs.

Christopher W. Johnson, D. L. Dirk Aydlette, III, Gignilliat Savitz and Bettis, Columbia, SC, for Defendant.

ORDER AND OPINION

J. MICHELLE CHILDS, District Judge.

Plaintiffs Mark Visco (“Visco”) and Christopher Watson (“Watson”) (collectively “Plaintiffs”) filed this collective action against Defendant Aiken County, South Carolina (“Defendant” or the “County”), on behalf of themselves and all others similarly situated, alleging violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201–219. ( See ECF Nos. 1, 49.) Plaintiffs also allege class claims against Defendant under Fed.R.Civ.P. 23 (“Rule 23”) for violation of the South Carolina Payment of Wages Act (“SCPWA”), S.C.Code Ann. §§ 41–10–10 to –110 (Supp.2011). ( Id.) In addition to their class and collective action claims, Plaintiffs assert individual state law claims for breach of contract and retaliation. ( Id.)

This matter is before the court on Defendant's motion for summary judgment pursuant to Fed.R.Civ.P. 56 (“Rule 56”); and Plaintiffs' motions for partial summary judgment, for conditional collective action certification, and for authorization to provide notice to putative collective action members. (ECF Nos. 57, 58, 63.) Each party has filed opposition to their opponent'smotion(s) respectively. ( See ECF Nos. 71, 72, 73.) For the reasons set forth below, the court DENIES Plaintiffs' motions for conditional collective action certification, to authorize notice, and for partial summary judgment; and GRANTS Defendant's motion for summary judgment.

I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

Defendant is the fourth largest South Carolina county by land area. Aiken Cnty. Gov't, http:// www. aikencountysc. gov/ sabout. cfm (last visited Sept. 26, 2013). Defendant is bordered by the Savannah River on the west, Edgefield and Saluda Counties on the north, Barnwell and Orangeburg Counties on the southeast and by Lexington County on the east. Id. The city of Aiken is the county seat for Defendant. Id.

Defendant operates an Emergency Medical Services Division (“EMSD”) to provide Emergency Medical Services (“EMS”) and fire protection services to its citizens, residents, and other persons in need. (ECF No. 49 at 2 ¶ 6.) Fire protection services are provided for Defendant by independent volunteer fire companies, which are assigned to specified territories. (ECF No. 57–3 at 1 ¶ 3.) These volunteer departments are independent of, and are not run by, Defendant. ( Id.) The only fire protection service provider operated by Defendant is the Sage Mill Fire Department (“SMFD”), which was created to serve the Sage Mill Industrial Park (“SMIP”) as part of the incentive package offered to persuade Bridgestone Tire Company to relocate there. ( Id. at ¶ 4.) The SMFD is a mutual aid fire department, and only responds to calls outside the SMIP if requested and pursuant to mutual aid agreements with the other volunteer fire departments. ( Id. at ¶ 5.) Since its inception, the SMFD has never had more than four employees. (ECF Nos. 57–4 at 19, 57–5 at 3 & 57–3 at 1 ¶ 6.)

Firefighters in the SMFD and Emergency Medical Technicians (“EMTs”) in the EMSD are scheduled to work shifts of twenty-four hours from eight a.m. to eight a.m., followed by forty-eight hours off. (ECF Nos. 57–4 at 18 & 57–5 at 10.) Since Defendant pays employees every two weeks, its emergency personnel typically have scheduled work weeks of forty-eight, fifty-six, and sixty-four hours and pay periods with scheduled hours of one hundred four, one hundred twelve, and one hundred twenty hours, which usually results in some amount of overtime. (ECF No. 57–4 at 30–31.)

Since October 2002, Watson has been employed by Defendant as a firefighter and he is currently assigned to the SMFD. (ECF Nos. 49 at 5 ¶ 17, 57–5 at 3 & 75–3 at 4.) Visco was employed by Defendant as a firefighter with the SMFD from November 30, 2001 until December 2, 2010. (ECF No. 49 at 5 ¶ 16.) When they were hired, Plaintiffs were issued a copy of the Aiken County Employee Information Handout (the “Handbook”).¹ (ECF Nos. 73–6, 73–7.) Throughout their employment, Plaintiffs allege that Defendant treated them as non-exempt employees and paid them overtime for time worked after forty hours per week. (ECF No. 50 at 4 ¶¶ 18, 19.) Plaintiffs further allege that in each of the years 2009, 2010, and 2011, they and other employees received from Defendant paid holiday bonuses.² ( See ECF No. 75–5 at 2–4.)

In approximately December of 2006, Visco brought to Defendant's attention his concerns that he was not accruing vacation at the rate appropriate to his years of service. ( See ECF No. 73–10.) Visco actively pursued the issue of his underpayment, but was ultimately unsuccessful in resolving the issue prior to the termination of his employment. ( See ECF No. 73–11.)

In November 2008, Plaintiffs attended a meeting held by Harvey Jay (“Jay”), Emergency Services Coordinator. (ECF Nos. 57–4 at 32–37 & 57–5 at 21–23.) The primary purpose of the meeting was to discuss a plan by Nick Bianco, Director of Emergency Services, to require the firefighters to attend re-certification training for EMTs. (ECF Nos. 57–4 at 34 & 57–5 at 22.) During the November 2008 meeting, Plaintiffs allege that Jay was hostile to Plaintiffs' resistance to attending training for EMTs. (ECF Nos. 57–4 at 32–37 & 57–5 at 21–23.) At one point, they assert that Jay told them that if they did not “do what is told and get with the program I will put you on probation then I will fire you.” ( Id.;see also ECF No. 73–12.)

Shortly thereafter, Visco set up a meeting regarding his issues/complaints with Todd Glover (“Glover”), Assistant Administrator. (ECF No. 73–13.) Watson participated in Visco's first meeting with Glover and subsequent meetings. ( Id.) Plaintiffs continued to meet with Glover and others in the County through 2009 and 2010. ( See ECF No. 73–14.)

On July 6, 2010, Visco was unable to work due to a non-work related injury. Defendant provided Visco with leave under the Family and Medical Leave Act (“FMLA”). (ECF No. 57–4 at 39, 47.) When Visco was unable to return to work after exhausting his FMLA leave, he was given an extended leave of absence. ( Id. at 49.)

On July 9, 2010, Visco's doctor issued a doctor's note, indicating that Visco could return to work in two weeks. ( Id. at 48.) On August 30, 2010, Visco's doctor issued a note to Defendant, indicating that Visco could do “sedentary work only” and that he could not push, pull or lift anything over fifteen pounds. ( Id. at 51.) Visco's doctor further indicated in the August 2010 note that Visco would not be re-evaluated until November 1, 2010. ( Id.) Thereafter, on November 3, 2010, Visco's doctor wrote another note, this time telling Defendant that Visco was “unable to return to work,” without providing any indication of when he would be able to return to work. ( Id. at 50.)

Because of the limited number of available firefighters, Defendant decided that it needed to fill Visco's position. ( Id. at 19–20.) Defendant notified Visco on December 2, 2010, after he had exhausted all leave available to him that it was filling his position and terminating him from employment. (ECF No. 57–8.) After the terminationof his employment, Visco applied for positions with Defendant as a firefighter and as a logistics officer. (ECF No. 57–4 at 43.) Defendant did not hire Visco for either position.³ ( Id. at 44.)

Plaintiffs commenced this action on June 10, 2011, alleging that Defendant had violated the FLSA and the SCPWA, breached its contract with Plaintiffs, and unlawfully retaliated against them. ( See ECF No. 1.) The complaint contained specific allegations that Defendant: (1) employed Visco as a firefighter from November 30, 2001 until December 2, 2010; (2) employed Watson as a firefighter since 2002; (3) was an “employer” for purposes of the FLSA because it was a “public agency”; (4) failed to pay Plaintiffs at the rate of one and a half times their normal rate of pay for all hours worked in excess of forty hours per week as required by the FLSA; (5) made an express contractual promise to Plaintiffs as to the amount of sick leave they could earn, inter alia, compensation for working on holidays and annual leave; (6) promised, but failed to protect employees from retaliation; and (7) retaliated against Plaintiffs for complaining about its leave policies. ( Id. at 5–9.) On July 15, 2011, Defendant answered the complaint, denying Plaintiffs' allegations. (ECF No. 8.)

On November 22, 2011, Plaintiffs filed eight opt-in notices on behalf of current or former emergency services workers of Defendant. (ECF No. 18). A ninth opt-in notice was filed on December 15, 2011. (ECF No. 19). The tenth and last opt-in notice was filed on May 9, 2012. (ECF No. 32.)

On October 15, 2012, Plaintiffs filed a motion to amend the complaint to add a claim that Defendant paid bonuses to Plaintiffs, but failed to include the amount of the bonuses in their regular hourly rate for purposes of calculating overtime. (ECF No. 40.) After the court granted their motion to amend the complaint on November 1, 2012, Plaintiffs filed an amended complaint on November 5, 2012, and Defendant answered the amended complaint on that same day. (ECF Nos. 48, 49, 50.) Thereafter, Defendant moved for summary judgment pursuant to Rule 56 on January 15, 2013. (ECF No. 57.) Plaintiffs filed opposition to Defendant's Rule 56 motion on February 16, 2013, to which Defendant filed a reply in support of its Rule 56 motion on ...