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Vidmar v. City of Milwaukee

United States District Court, E.D. Wisconsin

November 2, 2017

DANIEL J. VIDMAR and CHRISTOPHER E. MANNEY, Plaintiffs,
v.
CITY OF MILWAUKEE, Defendant.

          DECISION AND ORDER ON PLAINTIFFS' AND DEFENDANT'S MOTIONS FOR SUMMARY JUDGMENT

          NANCY JOSEPH UNITED STATES MAGISTRATE JUDGE.

         Daniel 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.

         UNDISPUTED FACTS

         The 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. ¶ 9.)

         Christopher 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.)

         SUMMARY JUDGMENT STANDARD

         The 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 party.” Id.

         In 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)).

         ANALYSIS

         The 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.

         1. Termination of Employment

         Pursuant 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).

         The 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.)

         In 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 ...


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