Banks v. Birmingham Board of Education

          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 ...