United States District Court, E.D. Wisconsin
DANIEL J. VIDMAR and CHRISTOPHER E. MANNEY, Plaintiffs,
CITY OF MILWAUKEE, Defendant.
DECISION AND ORDER ON PLAINTIFFS' AND
DEFENDANT'S MOTIONS FOR SUMMARY JUDGMENT
JOSEPH UNITED STATES MAGISTRATE JUDGE.
J. Vidmar and Christopher E. Manney are former officers of
the Milwaukee Police Department (“MPD”). Vidmar
and Manney sue the City of Milwaukee under the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. § 201,
et seq., alleging that the City failed to pay
compensatory time to the officers upon their termination of
employment from the MPD. The parties have filed cross motions
for summary judgment. For the reasons that I explain in this
decision, the plaintiffs' motion for summary judgment is
denied and the defendant's motion for summary judgment is
granted in part and denied in part.
parties agree to the following relevant facts. Daniel J.
Vidmar is a former police officer with the MPD and was
employed by the City. (Stipulated Facts (“Stip.
Facts” ¶ 1, Docket # 23.) The Chief of Police
issued an order discharging Vidmar on January 8, 2014.
(Id. ¶ 2.) The City of Milwaukee Fire and
Police Commission (“FPC”) upheld Vidmar's
discharge order on or about June 17, 2014. (Id.
¶ 3.) The FPC issued its written decision regarding
Vidmar's discharge on June 26, 2014. (Id. ¶
4.) Vidmar appealed the FPC's decision to the Circuit
Court, which issued a decision on June 10, 2015, upholding
the FPC's decision. (Id. ¶ 5.) Vidmar
appealed the Circuit Court's decision to the Court of
Appeals, which issued a decision on November 15, 2016
affirming the Circuit Court's decision. (Id.
¶ 6.) As of January 25, 2017, the date this action was
filed, the City had not yet paid Vidmar for compensatory time
(“comp time”) which Vidmar had earned and which
was banked with the City while Vidmar had been employed by
the City. (Id. ¶ 7.) Vidmar's comp time
bank totaled 226.05 hours of comp time at the time of the
termination of his employment. (Id. ¶ 8.) On or
about March 23, 2017, the City issued payment to Vidmar in an
amount equal to all comp time that had been banked in his
name ($7, 615.71, less required withholding). (Id.
E. Manney is a former police officer with the MPD and was
employed by the City. (Id. ¶ 10.) The Chief of
Police issued an order discharging Manney on October 15,
2014. (Id. ¶ 11.) The FPC upheld Manney's
discharge on or about March 23, 2015. (Id. ¶
12.) The FPC issued its written decision regarding
Manney's discharge on April 28, 2015. (Id.
¶ 13.) Manney appealed the FPC's decision to the
Circuit Court, which issued a decision on July 22, 2016,
upholding the Commission's decision. (Id. ¶
14.) Manney appealed the Circuit Court's decision to the
Court of Appeals, which has yet to issue an opinion regarding
the Circuit Court's decision. (Id. ¶ 15.)
As of the date this action was filed, the City had not yet
paid Manney for comp time which Manney had earned and which
was banked with the City while Manney had been employed by
the City. (Id. ¶ 16.) Manney's comp time
bank totaled 22.0 hours of comp time at the time of the
termination of his employment. (Id. ¶ 17.)
Since filing this action, the City has not paid Manney the
monetary equivalent of the 22.0 hours of banked comp time.
(Id. ¶ 18.)
court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986). “Material
facts” are those under the applicable substantive law
that “might affect the outcome of the suit.”
See Anderson, 477 U.S. at 248. The mere existence of
some factual dispute does not defeat a summary judgment
motion. A dispute over a “material fact” is
“genuine” if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving
evaluating a motion for summary judgment, the court must draw
all inferences in a light most favorable to the nonmovant.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986). However, when the nonmovant is the
party with the ultimate burden of proof at trial, that party
retains its burden of producing evidence which would support
a reasonable jury verdict. Celotex Corp., 477 U.S.
at 324. Evidence relied upon must be of a type that would be
admissible at trial. See Gunville v. Walker, 583
F.3d 979, 985 (7th Cir. 2009). To survive summary judgment, a
party cannot rely on his pleadings and “must set forth
specific facts showing that there is a genuine issue for
trial.” Anderson, 477 U.S. at 248. “In
short, ‘summary judgment is appropriate if, on the
record as a whole, a rational trier of fact could not find
for the non-moving party.'” Durkin v. Equifax
Check Servs., Inc., 406 F.3d 410, 414 (7th Cir. 2005)
(citing Turner v. J.V.D.B. & Assoc., Inc., 330
F.3d 991, 994 (7th Cir. 2003)).
plaintiffs allege that the City violated the FLSA by failing
to pay them banked comp time upon their termination of
employment. The City argues that the plaintiffs' claims
are barred by the FLSA's two year statute of limitations.
The plaintiffs argue that the applicable statute of
limitations is three years because the City's conduct was
willful. The parties disagree as to when the causes of action
accrued, specifically, when the officers' employment was
terminated. Thus, the issues before me are (1) when did the
officers' causes of action accrue and (2) what is the
applicable statute of limitations.
Termination of Employment
to 29 C.F.R. § 553.27, “[u]pon termination of
employment, an employee shall be paid for unused compensatory
time . . . .” The FLSA provides that a cause of action
must be commenced within two years after the cause of action
accrued, except that a cause of action arising out of a
willful violation may be commenced within three years after
the cause of action accrued. 29 U.S.C. § 255(a).
parties disagree as to the date Vidmar and Manney were
terminated from their employment with the MPD. The plaintiffs
argue that Wis.Stat. § 62.50 provides that a police
officer suffers a “termination of employment”
upon the latter of: (1) the Chief's issuance of a
personnel order discharging the officer; (2) the Board of
Fire and Police Commissioners' (the “Board”)
decision under § 62.50(17) (assuming the officer appeals
the Chief's discharge order); or (3) the circuit
court's decision under §§ 62.50(20) and (22)
(assuming an appeal is taken from the Board's decision).
(Pl.'s Resp. Br. at 3, Docket # 34.) Thus, because the
plaintiffs appealed the Board's decision, they argue that
Vidmar was terminated on June 10, 2015 and Manney was
terminated on July 22, 2016-the dates on which the circuit
court upheld the Board's decision regarding the
plaintiffs' discharge. (Pl.'s Br. in Supp. of S.J. at
15, Docket # 22.)
contrast, the City argues that an officer's employment is
terminated when the Chief of Police issues an order
discharging the officer. Thus, the City argues that Vidmar
was terminated on January 8, 2014 and Manney was terminated
on October 15, 2014-the dates on which the Chief of Police
issued discharge orders. (Def.'s Br. in Supp. of S.J. at
4-8, Docket # 27.) The City cites to the Seventh