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Manney v. City of Milwaukee

United States District Court, E.D. Wisconsin

May 21, 2018

CHRISTOPHER E. MANNEY, Plaintiff,
v.
CITY OF MILWAUKEE, Defendant.

          DECISION AND ORDER ON DEFENDANT'S MOTION TO DISMISS

          NANCY JOSEPH, United States Magistrate Judge

         Christopher E. Manney is a former officer of the Milwaukee Police Department (“MPD”). Manney sues 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 upon his termination of employment from the MPD. The City moved for summary judgment on Manney's claim, arguing it was barred by the FLSA's two year statute of limitations. Manney opposed the motion, arguing that the applicable statute of limitations is three years because the City's conduct was willful.

         I denied the City's motion, finding there was a genuine issue of material fact as to whether the City's action was willful. (Docket # 41.) A trial to the Court was held on February 12, 2018. At trial, the City moved to dismiss Manney's complaint pursuant to Fed.R.Civ.P. 52(c), arguing that Manney failed to establish damages. The motion was taken under advisement and the parties were ordered to file post-trial submissions. For the reasons explained below, the City's motion to dismiss is granted and the action is dismissed.

         BACKGROUND

         At issue in this case are twenty-two hours of banked compensatory time that the City failed to pay to Manney after his employment ended with the MPD. (Transcript of Feb. 12, 2018 Court Trial (“Tr.”) at 135, Docket # 57.) During trial, the City moved to dismiss Manney's complaint at the conclusion of Manney's case-in-chief pursuant to Fed.R.Civ.P. 52(c) on the grounds that Manney failed to meet his burden of proving damages. (Tr. 134.) Specifically, the City argued that Manney failed to differentiate between compensatory time earned under the FLSA and compensatory time earned under the collective bargaining agreement between the City and the Milwaukee Police Association. (Id.) I denied the motion and allowed the City to present its case. (Tr. 142.) The City renewed its motion at the conclusion of its case-in-chief. (Tr. 167.) The motion was taken under advisement and the parties were given an opportunity to submit relevant authority on the issue. (Tr. 170.)

         ANALYSIS

         Under Fed.R.Civ.P. 52(c), if a party has been fully heard on an issue during a court trial and the court finds against the party on that issue, the court may enter judgment against the party on that claim. The court has discretion to wait until the close of evidence to render judgment.

         Manney alleges that he was denied compensatory time under 29 C.F.R. § 553.27. (Second Am. Compl., Docket # 16.) The FLSA provides that upon termination of employment, an employee must be paid for unused compensatory time earned after April 14, 1986. 29 C.F.R. § 553.27. Pursuant to 29 U.S.C. § 553.230(b), “[f]or those employees engaged in law enforcement activities . . . who have a work period of at least 7 but less than 28 consecutive days, no overtime compensation is required under section 7(k) until the number of hours worked exceeds the number of hours which bears the same relationship to 171 as the number of days in the work period bears to 28.” The MPD utilizes a fourteen day work period. (Tr. 100-01, 144, Exh. 1002 at 8.) The regulation provides a chart showing that for a fourteen day work period, overtime compensation (in premium pay or compensatory time) is required for all hours worked in excess of eight-six hours. § 553.230(c).

         Thus, the FLSA requires payment of overtime compensation for all hours worked in excess of eight-six hours during any fourteen day work period. Law enforcement employees “may receive compensatory time off in lieu of overtime pay for hours worked in excess of the maximum for their work period as set forth in § 553.230.” § 553.231(a). Section 553.28(a) provides that:

Compensatory time which is earned and accrued by an employee for employment in excess of a nonstatutory (that is, non-FLSA) requirement is considered “other” compensatory time. The term “other” compensatory time off means hours during which an employee is not working and which are not counted as hours worked during the period when used. For example, a collective bargaining agreement may provide that compensatory time be granted to employees for hours worked in excess of 8 in a day, or for working on a scheduled day off in a nonovertime workweek. The FLSA does not require compensatory time to be granted in such situations.

         The regulations provide that the “requirements of section 7(o) of the FLSA, including the limitations on accrued compensatory time, do not apply to ‘other' compensatory time as described above.” § 553.28(e).

         The collective bargaining agreement provides that the normal hours of work for employees covered by the agreement is work shifts of eight consecutive hours which, in the aggregate, results in an average normal work week of forty hours. (Exh. 10 at 41, Article 14, Section 1.) The agreement also provides that overtime consists of all authorized assignments outside of the regularly scheduled eight-hour shift. (Exh. 10 at 42, Article 15, Section 1.) Thus, an officer who works eighty-six hours in a fourteen day work period would be entitled to six hours of overtime under the collective bargaining agreement; however, the officer would not be entitled to anything under the FLSA in terms of compensatory time. (Tr. 117-18.)

         The parties both present hypothetical scenarios to argue whether it is mathematically possible for a police officer to earn FLSA-required compensatory time in a given pay period without earning any “other” compensatory time. (Def.'s Br. at 4-5, Docket # 60; Pl.'s Resp. Br. at 5-6, Docket # 62; Def.'s Reply Br. at 2-4, Docket # 64.) None of this analysis, however, answers the question of whether Manney's twenty-two hours of compensatory time actually fall under the FLSA. “An employee bears the burden of proving that she performed overtime work for which she was not properly compensated.” Brown v. Family Dollar Stores of IN, LP, 534 F.3d 593, 594 (7th Cir. 2008) (citing Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 686-87 (1946)). Additionally, “once a plaintiff establishes a violation of the FLSA, the plaintiff must establish damages, and that the [sic] task is not a difficult one where the employer has kept time records in compliance with the requirements of the FLSA.” Id. at 595. The general rule that damages must not be uncertain and speculative also applies. Id.

         However, in cases where the employer fails to keep proper records as required by the FLSA, the employee is allowed to prove damages under a relaxed evidentiary standard. The Brown court stated that “Anderson recognized that where an employer failed to keep the proper and accurate records required by the FLSA, the employer rather than the employee should bear the consequences of that failure. To place the burden on the employee of proving damages with specificity would defeat the purpose of the FLSA ...


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