Wolotka v. School Town of Munster

• Decision Date: 07 November 2005
• Docket Number: No. 2:02 CV 410.,2:02 CV 410.
• Citation: 399 F.Supp.2d 885
• Parties: Susan WOLOTKA, Plaintiff v. SCHOOL TOWN OF MUNSTER, Defendant
• Court: U.S. District Court — Northern District of Indiana

399 F.Supp.2d 885

Susan WOLOTKA, Plaintiff v. SCHOOL TOWN OF MUNSTER, Defendant

No. 2:02 CV 410.

United States District Court, N.D. Indiana, Hammond Division.

November 7, 2005.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Anna Marie Hearn, Jennifer L. Ortiz, Blachly Tabor Bozik & Hartman, Valparaiso, IN, for Plaintiff.

Maryann Kusiak McCauley, Michael D. Sears, Jacquelyn S. Pillar, Singleton Crist Austgen & Sears LLP, Munster, IN, for Defendant.

OPINION AND ORDER

RODOVICH, United States Magistrate Judge.

This matter is before the court on the Motion for Summary Judgment filed by the defendant, the School Town of Munster, on June 30, 2005; the Motion to Strike filed by Munster on August 18, 2005; and the Motion to Strike filed by the plaintiff, Susan Wolotka, on August 29, 2005. For the reasons set forth below, the Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART, the Motion to Strike filed by the defendant is GRANTED IN PART and DENIED IN PART, and the Motion to Strike filed by the plaintiff is GRANTED.

Background

The admissible evidence is as follows. The plaintiff, Susan Wolotka, began working as a substitute bus driver for the defendant, the School Town of Munster ("Munster"), in 1989. (Susan Wolotka Dep. p. 15) On November 2, 1992, Wolotka became a full-time ("regular") driver. (Wolotka Dep. pp. 15-16) As a regular driver, she worked under a yearly contract which was issued in October of each year. (Wolotka Dep. pp. 16-17) She also became responsible for training new drivers in 1992. (Wolotka Aff. []2) Her immediate supervisor was the Director of Pupil Services, Martin Keil. (Keil Dep. p. 21) Richard Sopko, the Assistant Director of Finance, supervised Keil and the classified employees which included bus drivers. (Richard Sopko Dep. p. 10) It is undisputed that Wolotka was a good driver. (Keil Dep. p. 105)

All bus routes are generally the same in that they have a combined high school/middle school route and an elementary school route. (Keil Dep. p. 47) Some routes also serve St. Thomas More, a parochial school. (Jennifer Sapyta Dep. p. 14) The routes that did not go to St. Thomas were favored by the drivers because they had a layover, or a period of time where the driver was paid but not working. (Keil Dep. p. 66; Sapyta Dep. p. 14) Keil typically paid bus drivers for 6.0 hours worked daily, which equaled two hours for the morning and afternoon routes plus 1.75 hours for the kindergarten route and .25 hours for inspecting, cleaning, and fueling. (Keil Dep. p. 46) However, Keil would make allowances for routes which took longer. (Keil Dep. p. 47) For example, he would pay a bus driver for 15 more minutes of work if she was coming in at 4:30 P.M. rather than 4:00 P.M. or 4:10 P.M. like most bus drivers. (Keil Dep. p. 47)

From 1996 to February 2002, Wolotka drove Bus 20 which was named for the route (20) that she drove. (Wolotka Dep. pp. 22-23) In 1996, Wolotka was paid for seven hours a day because her morning route entailed two high school runs and required her to make her first stop at 6:45 A.M. instead of 7:00 A.M. (Wolotka Supp. Aff. []3) During the 1997-98, 1998-99, and 1999-2000 school years, Wolotka was compensated for 6.75 hours of work for the same route because she had only one high school run in the morning. (Wolotka Supp. Aff. []4; Wolotka Dep. pp. 23, 25) Thus, with the exception of 15 minutes additional pay in 1996 for the extra high school run, Wolotka's route from 1996-2000 involved morning and afternoon high school/middle school runs, a St. Thomas More route, an elementary route, and a mid-day kindergarten route for which she was compensated a total of 6.75 hours. She was able to complete her routes in the time allotted.¹ (Wolotka Dep. p. 25)

At least by the 1995-96 school year, paragraph three in Wolotka's contracts with Munster provided:

Employer agrees to pay Driver for his/her services under this contract in the amount of [rate] per hour for an average [number] hour day for 180 days during said school year, such sum referred to above to be paid biweekly. Should the driver work more or less than his/her average day pursuant to the schedule established by the Employer, Driver shall be paid at his/her hourly rate for the fraction of the day worked.

See, e.g., Pl. Exh. A, C

According to Keil, bus drivers should record the amount of time actually worked on their time cards. (Keil Dep. p. 44) He testified that Munster added paragraph three to the driver contracts so that drivers would not claim the full day for partial days worked. (Keil Dep. p. 43) To him, paragraph three meant that Munster would pay bus drivers for what they actually worked any given day. (Keil Dep. p 43) However, more pay only would be given in "extreme circumstances" such as "heavy snow fall or significant delays with trains," although he also stated that drivers would be "paid for what they worked under any circumstance." (Keil Dep. pp. 43, 52) Sopko similarly stated that drivers were expected to complete their routes in the allotted time, but they would be paid for additional work if, occasionally, the route took longer to complete. (Sopko Dep. p. 21)

When Munster issued Wolotka's contract for the 2001-02 school year at the end of October 2001, her hours were reduced from 6.75 to 6.0, but her routes remained the same. (Wolotka Dep. pp. 17, 25, 129) Nevertheless, she was paid for 6.75 hours during the first two weeks of the school year. (Wolotka Dep. p. 29)

Prior to signing her contract in early November 2001, Wolotka brought the reduced hours to Keil's attention. (Wolotka Dep. p. 26) During that conversation, Keil claimed that Wolotka was padding the bill and had been paid for more than she actually did. (Wolotka Dep. p. 27) Nevertheless, based on the language in paragraph three of the contract and Keil's statement at the end of their conversation that "We'll pay you for what you work," Wolotka signed her contract. (Wolotka Dep. p. 28) However, when Wolotka received her next paycheck, her hours worked were crossed out and marked at 6.0 hours per day. When Wolotka subsequently spoke to Keil about the change, Keil reiterated that she was over-stating her time. (Wolotka Dep. p. 30)

Sopko stated that an appropriate way to investigate a charge of timecard padding would be by putting another driver on the disputed route to see how long it took. (Sopko Dep. p. 46) Keil would ride with other bus drivers, but he refused to ride with Wolotka to see how long it took to drive Route 20 or to reduce the size of the route. (Keil Dep. pp. 53-54; Sapyta Dep. p. 37; Wolotka Dep. pp. 31, 128) According to Wolotka, Keil said that changes to her route would "inconvenience other drivers." (Wolotka Aff. []10) Keil stated that he knew how long the routes were because he developed them, subbed for some of the routes and "may" have driven Wolotka's once or twice, although Wolotka said he never subbed for her. (Keil Dep. p. 55; Wolotka Dep. p. 31) Keil testified that he probably would have ridden with Wolotka if she had asked, but he also said that he determined that it was not necessary to ride with her because he already knew what time she was coming in every day from daily emails she wrote. (Keil Dep. pp. 54, 63) According to Keil, if he had ridden with Wolotka,

[i]t would be one of those days where things went smoothly. And lo and behold, she got in on a good time ... she would have made it look better to satisfy me on that particular day. And geez, the traffic was light. Things went smoothly and I'm home free.

(Keil Dep. p. 64)

Also according to Keil, he had lost trust in anything Wolotka said or wrote because it was "clear" to him that she was padding her time because she was upset about not getting the time allotted for her route in previous years and because she had not gotten duties she could have been assigned. (Keil Dep. pp. 64-65) He further based his conclusion that she was padding her time on the testimony of "other drivers," although the only driver he could recall with certainty subbing for Wolotka was Ann Vermuelen. (Keil Dep. pp. 48, 55, 67) Keil continued to cross out Wolotka's actual hours worked and write "6.0" on her time card until she changed routes in February 2002. (Wolotka Dep. p. 32, Pl. Exh. G)

Vermuelen subbed for Wolotka for one week in October 2001 during which she drove only the morning and afternoon routes and did not drive the kindergarten route. (Keil Dep. pp. 58-61; Wolotka Dep. pp. 130-33; Pl. Exh. I) On her time sheet for that week, Vermuelen recorded 2.5 hours for the morning route and 2 hours for the afternoon. However, someone reduced Vermuelen's time sheet daily totals to 4.25. (Pl.Exh. I) Keil has no personal knowledge of the time Vermuelen spent on the morning route, but he did observe Vermuelen coming in one day at 4:08 P.M. from Wolotka's afternoon route. (Keil Dep. pp. 59, 62) When Wolotka returned to work the following week, she received complaints from parents that Vermuelen let all of the children get off in two stops. (Wolotka Dep. p. 132)

In order to show Keil how she spent her work time, Wolotka emailed Keil daily reports, specific to the minute, between November 2001 and February 2002. (Wolotka Dep. p. 31; Pl. Exh. W) Because she drove a kindergarten route, she was permitted to take her bus home. (Wolotka Supp. Aff. []7) She began her day on average at 6:39 A.M. and her total average pretrip time equaled 20.5 minutes, representing 16.7 minutes² to complete her pre-trip inspection and required pre-trip form and 3.8 minutes³ to drive to the bus lineup. During the pre-trip inspection, Wolotka checked tires, breaks, lights, potential leaks, and so forth. (Wolotka Supp. Aff. a6; Brad Turner Dep. p. 27) Excluding this inspection, her daily morning route averaged 1 hour and 55 minutes.⁴ Wolotka returned to the bus garage at approximately 4:18 P.M.⁵ each afternoon following a route that took on average 2 hours and 3...