United States District Court, N.D. Alabama, Southern Division
ORDER
MADELINE HUGHES HAIKALA UNITED STATES DISTRICT JUDGE
The
named and opt-in plaintiffs in this Fair Labor Standards Act
(FLSA) action seek overtime wages that they allege the
defendant, the Birmingham Board of Education, did not pay
them when they worked more than 40 hours in a workweek. The
Court certified an opt-in class that consists of “all
classified non-exempt employees who have worked at the
Board’s 49 schools during the three year period
preceding the filing of this lawsuit.” (Doc. 54, p.
17). After an early and extended effort at mediation with a
magistrate judge, the Court began efforts to determine which
of the 309 named and opt-in plaintiffs could proceed with
their claims against the Board.[1]
Toward
this end, on November 30, 2016, the Court issued the
following order:
On November 28, 2016, the Court held a telephone conference
with the parties to discuss discovery that plaintiffs’
counsel contended the plaintiffs need to respond to the
Birmingham Board of Education’s partial motion for
summary judgment. (Doc. 148). Because plaintiffs’
counsel acknowledged that the plaintiffs are not seeking
compensation for straight time in this Fair Labor Standards
Act (FLSA) action, the Court granted the Board’s
summary judgment motion pertaining to straight time. (Doc.
150). Under the FLSA, an employer must pay a non-exempt
employee overtime compensation if the employee works more
than 40 hours in any workweek. See 29 U.S.C. §
207(a). Therefore, a plaintiff in this FLSA action may
recover damages only if the plaintiff can prove that (s)he
worked more than 40 hours in a workweek in the class period.
In the motion for partial summary judgment that the Board
must file by January 6, 2017, the Board shall identify each
member of the opt-in plaintiff class who the Board contends
did not work more than 40 hours in a workweek during the
class period. The Board shall provide evidence to support the
Board’s contention with respect to each opt-in
plaintiff who the Board identifies in its motion.
To avoid dismissal of his or her overtime claim, each opt-in
plaintiff who the Board identifies in its upcoming motion for
summary judgment must provide evidence that demonstrates that
the employee worked more than 40 hours in a workweek during
the class period. The mere fact that the Board designated an
employee as a 37.5-hour employee rather than a 40-hour
employee is not dispositive as a matter of law. By way of
example, if a custodian can demonstrate that during a
workweek within the class period, he worked 5 hours beyond
his 37.5 scheduled hours, then the custodian may seek 2.5
hours of overtime compensation because he worked 42.5 hours
in a workweek, exceeding the FLSA’s 40-hour workweek
overtime threshold by 2.5 hours. However, if the custodian
was scheduled to work 37.5 hours per week, and he can show
only that he worked 2 hours beyond his 37.5 scheduled hours,
then the custodian would not have a viable overtime claim
under the FLSA because he worked only 39.5 hours, thus
falling short of the FLSA’s 40-hour workweek overtime
threshold. If a 37.5-hour employee cannot present evidence
that demonstrates that the employee worked more than 40 hours
in a workweek during the class period, then that employee
should withdraw his opt-in notice. After examining the
evidence presented by each plaintiff who attempts to prove
that he or she worked more than 40 hours in a workweek during
the class period, the Court will rule on the Board’s
January 2017 summary judgment motion.
(Doc. 151).[2]
On
December 30, 2016, the Board moved for summary judgment on
the FLSA claims of 248 plaintiffs. (Doc. 157). The plaintiffs
filed their initial response to the summary judgment motion
on February 25, 2017. (Doc. 176). On July 28, 2017, the Court
granted the Board’s motion with respect to five
plaintiffs. (See Doc. 200) (dismissing the claims of
Tammra Harris, Doris Pope Howard, Eliza Means, LaGretta
Moultry, and David Rice).
Following
a series of notices and orders, the Board eventually directed
its motion for summary judgment toward 147 plaintiffs. The
Board argued that none of the 147 plaintiffs worked more than
40 hours in a workweek during the class period. (Docs. 187,
201, 207, 211, 212).[3] The plaintiffs moved to strike the time
records that the Board offered in support of its motion for
summary judgment. (Doc. 199). The Court gave the Board an
opportunity to develop its summary judgment evidence. (Docs.
208-214). The Board completed its evidentiary submissions on
February 9, 2018. (Doc. 215). On February 12, 2018, the
plaintiffs requested additional time to submit evidence in
opposition to the motion for summary judgment. The Court
granted two extensions. (Docs. 216-19). On March 8, 2019, the
plaintiffs filed additional opposition to the Board’s
summary judgment motion. (Docs. 220-223).[4]
On May
29, 2018, the Court granted in part and denied in part the
Board’s motion as to the 142 plaintiffs whose claims
were before the Court on the Board’s amended summary
judgment motion. (Doc. 227). The Court found that the
evidence in the record, viewed in the light most favorable to
the plaintiffs, created a disputed question of fact regarding
the Board’s payment of overtime wages to 99 of the 142
plaintiffs. (Doc. 227, pp. 3-4). For the remaining 43
plaintiffs, the Court concluded that the plaintiffs’
evidence was insufficient to create a disputed question of
fact as to overtime wages. (Doc. 227, p. 4). The Court
granted the Board’s motion for summary judgment as to
those 43 plaintiffs. (Doc. 227, pp. 52-53).
Significantly,
17 months elapsed between the date on which the Board filed
its motion for summary judgment regarding plaintiffs who the
Board contends worked fewer than 40 hours in a workweek and
the date on which the Court resolved the motion. And 18
months elapsed between the date on which the Court gave the
plaintiffs specific instructions about the evidence they
would need to submit to avoid summary judgment (Doc. 151) and
the date on which the Court resolved the Board’s
summary judgment motion.
The
plaintiffs have asked the Court to amend its summary judgment
order and deny the Board’s motion for summary judgment
on the claims of the 43 plaintiffs as to whom the Court
entered judgment for the Board. (Doc. 231). Eleven of the 43
plaintiffs attached affidavits in support of the motion to
amend. The plaintiffs who submitted affidavits signed the
affidavits after the Court ruled on the Board’s summary
judgment motion. (Docs. 231-1, 231-2).[5] The plaintiffs
submitted executed discovery responses for plaintiff Theresa
Sheppard. (Doc. 231-4). The discovery responses were verified
on March 2, 2018. (Doc. 231-4, p. 4). The plaintiffs assert
that they inadvertently omitted from their March 8, 2018
summary judgment submissions Ms. Sheppard’s verified
discovery responses. (Doc. 231, p. 3, ¶ 10) (describing
the discovery responses as an affidavit “which should
have been filed with the Plaintiffs’ Doc. 221”).
The 30 plaintiffs who did not submit evidence in support of
the motion to amend request:
an additional thirty (30) days to providing [sic] an
affidavit regarding the Court’s analysis of the
Board’s time record and their off-the-clock hours which
did not and could not possibly appear on the record.
Plaintiffs request[] the Court set this matter for hearing
and upon said hearing alter or amend the Court’s Order
granting partial summary judgment to the Birmingham Board of
...