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DOMINICI v. BOARD OF EDUC. OF CHICAGO

February 24, 1995

JAMES DOMINICI, et al., on their own behalf and as representatives of all others similarly situated, Plaintiff,
v.
BOARD OF EDUCATION OF THE CITY OF CHICAGO, Defendant.



The opinion of the court was delivered by: RUBEN CASTILLO

 This case involves resolution of Plaintiffs' claims for liquidated damages in the amount of untimely paid overtime, attorney fees and costs under the Fair Labor Standards Act, 29 U.S.C. ยง 207(a). James Dominici filed this representative action on behalf of himself and similarly situated employees of the Board of Education of the City of Chicago ("Board of Education") on March 3, 1994. Plaintiff alleged that he and other Board of Education employees had worked more than 40 hours in numerous workweeks since September 1992 and had not been paid any compensation for those overtime hours. In May, June, and July of 1993, the Board of Education voluntarily paid to Plaintiffs and similarly situated employees the overtime compensation they were owed.

 Plaintiffs and Defendant have filed cross-motions for summary judgment on the issue of whether the Board of Education's untimely payments of overtime compensation were violations of the Fair Labor Standards Act ("FLSA"). Defendant has also filed a motion for summary judgment denying liquidated damages if liability is present. For the reasons stated below, the Plaintiffs' motion for summary judgment on the issue of liability is granted and, sua sponte, the Plaintiffs are granted summary judgment on the issue of liquidated damages, attorney fees and costs.

 The following facts are material and undisputed.

 A. The Plaintiffs and Their Claims

 The Plaintiffs in this case are 37 custodial employees of the Board of Education who claim the Board of Education violated the FLSA by untimely paying overtime wages. From June 7, 1992 through April 25, 1993, 127 custodial employees of the Board of Education, 32 of whom are plaintiffs in this case, worked more than 40 hours in at least one workweek in connection with programs operated by Chicago Park District at Board of Education buildings. From August 30, 1992 through March 27, 1993, five Board of Education employees worked more than 40 hours in at least one workweek which were not connected with Chicago Park District programs. During this time period the Plaintiffs accrued approximately $ 132,527.87 in unpaid overtime compensation. *fn1" The Board of Education voluntarily paid the accrued overtime compensation *fn1" on May 7, 1993 through July 9, 1993, and began making timely payment *fn2" of overtime wages on May 14, 1993. See Joint Stipulations, PP 10-14, 16-20.

 B. The Board of Education's Actions

 Beginning in October, 1991, Dr. Grady Jordan, the District Superintendent of High Schools, was given responsibility for administering the "360 Playground" fund. The term "360 Playground" was the Board's accounting designation for a fund from which overtime was to be paid in connection with Park District programs prior to the 1992-93 school year. See Pls.' Rule 12 (N) Statement, P 6, Def.'s Statement of Material Facts, P 6. In fiscal year 1993 (i.e., September 1992 through August 1993), the Board of Education substantially reduced appropriations for overtime. See Def.'s Statement of Material Facts, P 8. The overtime payments which were eventually made to the Plaintiffs were charged against both the "552 Public Building Commission" fund and the "360 Playground" fund. See Def.'s Statement of Material Facts, P 16.

 Prior to this reduction in overtime appropriations, in February 1992, the Board of Education had adopted a new accounting procedure utilizing "bucket numbers" (i.e., payroll accounting numbers). Thereafter, whenever a custodial employee worked overtime, the overtime had to be charged to a particular bucket number. To establish a bucket number for custodial compensation, an administrator must estimate the amount of regular and overtime wages anticipated for that particular purpose and transmit to the Budget department this estimate along with the "fund" to be charged. The Budget department then issues a bucket number. If the overtime is not charged to a valid bucket number, the Board of Education will not pay the employee for the overtime worked. The bucket number is inserted by the chief engineer of each school on Board of Education forms submitted for each payroll period. It was the failure of the custodial employees' supervisors to charge overtime to a bucket number, or to submit overtime for which no bucket number was available, which resulted in the delayed payment of overtime wages in this case. See Pls.' Rule 12(N) Statement, P 7, Def.'s Reply to Pls.'s 12(N) Statement, PP 6-7.

 C. Arguments of the Parties

 
I would check it. I knew I was doing these other things. As of this date I wasn't doing a heck of a lot as of November 27th, you see, because it was the beginning of the school year. A lot of other things to do. I would say okay, I would check into it. I wouldn't spend every waking hour worrying about this.
 
I have a lot of problems and this is just one of them.

 See Brody Dep. at 36. This is not the only evidence which demonstrates that the Board of Education was aware of the need to create bucket numbers for overtime performed by custodial employees. More than six months prior to the first delayed payments, Dr. Jordan received a memorandum from Mr. Gillispie, the Chief Financial Officer of Chicago Public Schools, dated October 28, 1992, requesting city-wide bucket numbers for overtime worked in connection with Park District programs. See Joint Stipulations, Ex. L. Additionally, the plaintiffs' union filed grievances, dated November 27, 1992 and January 22, 1993, based upon the Board's failure to timely pay overtime compensation. See Joint Stipulations, Ex.s N, Q.

 There is a complete absence of evidence that the Board of Education took any affirmative steps to determine its liability under the FLSA for delayed payment of overtime compensation. In fact, the only evidence submitted on the issue of what the Board of Education knew about its potential liability prior to the initiation of this lawsuit consists of the January 22, 1993, grievance which informed the Board of Education that they were potentially liable for liquidated damages in an amount equal to the delayed payments. See Joint Stipulations, Ex. Q. For evidence of its good faith, the Board of Education asserts that the Chief Financial Officer directed Jordan to establish bucket numbers on October 28, 1992, and that the Board acted diligently and in good faith thereafter to establish bucket numbers and compensate its custodial employees. See Def.'s Statement of Material Facts, P 11. The Board relies heavily upon the statements of Dr. Grady Jordan:

 
No one in my opinion, certainly not us, were dealing with this on the basis that we are not going to pay these people.
 
I had been an administrator first with the City and then with the Board of Education over 25 years and I am well aware people work, you pay them.
 
My record and my reputation is such in this agency, if you ask around, there is no one in this agency now or have been that will go to the limits I will to see that people of any rank; in fact, the ...

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