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September 20, 2004.

JAMES WILSON, individually and on behalf of a class of persons similarly situated, Plaintiffs,
CITY OF CHICAGO, a municipal corp., Defendant.

The opinion of the court was delivered by: REBECCA PALLMEYER, District Judge


Plaintiff James Wilson ("Wilson" or "Plaintiff"), is a Chicago police officer. In this lawsuit, Mr. Wilson alleges that during his term as a Probationary Police Officer ("PPO"), Defendant City of Chicago (the "City" or "Defendant") willfully failed to compensate him for overtime work, including meal periods, in violation of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. ("FLSA"). After a lengthy period of discovery, the City filed a motion for summary judgment on January 16, 2004. Plaintiff responded first by filing a motion for conditional certification of a class of similarly situated PPOs, which the court construes as filed under § 216(b) of FLSA. Plaintiff has also filed a response in opposition to Defendant's summary judgment motion. For the reasons set forth below, Defendant's motion for summary judgment is granted in part and denied in part without prejudice, and Plaintiff's motion to certify the class and give notice to potential class members is denied without prejudice.


  In support of its motion for summary judgment, the City has filed a statement of undisputed material facts, supported by exhibits, as required by this court's Local Rule 56.1. Plaintiff has responded to Defendant's statement and has furnished a statement of additional undisputed material facts pursuant to Local Rule 56.1(a)(3). In several instances, however, Plaintiff has denied assertions in Defendant's Local Rule 56.1 statement, but has cited no evidence in support of his denial. In such circumstances, the statements are deemed admitted. The parties here agree that under the Fair Labor Standards Act, the City is required to pay its police officers overtime compensation (in premium pay or compensatory time) for all hours worked in excess of 171 in a 28-day pay period. See 29 U.S.C. § 207(k); 29 C.F.R. § 553.230. In 1986, the Chicago Police Department ("CPD") implemented an overtime policy (the "Policy") that provided that PPOs would receive compensatory time at a rate of time and one half for all hours worked in excess of 171 hours in a 28-day period. (Defendant's 56.1 Statement of Undisputed Material Facts (hereinafter "Def.'s 56.1 Stmt.") ¶ 11.) In addition to providing PPOs with compensatory time for hours in excess of 171 ("FLSA overtime"), Department policy also compensates PPOs on an hour-for-hour basis for any work beyond their daily tours of duty, for work on designated holidays, and for their work-related court appearances ("non-FLSA overtime"). (Id. ¶¶ 12, 17.) The Policy provides that the first 480 hours of FLSA overtime, and all non-FLSA overtime, earned by PPOs must be taken as compensatory time rather than as additional pay. (Id. ¶ 12.) Under the Policy, PPOs must exhaust all FLSA compensatory time before non-FLSA compensatory time may be used. (Id. ¶ 30.)

  Plaintiff James Wilson was hired by Defendant City of Chicago on September 13, 1999 as a Police Recruit assigned to the CPD training academy. (Id. ¶¶ 5-6.) On February 6, 2000, Wilson graduated from the academy and was sworn in as a PPO. (Id. ¶ 7.) On or about September 12, 2000, Wilson completed his probationary period and became a career-service police officer with the CPD. (Id. ¶ 8.)

  Audit of PPO Payroll Records by Officer Smith

  Plaintiff filed his original complaint in this case on May 10, 2002. At some point after that date, Officer Deborah K. Smith of the CPD Auditing and Internal Control Division conducted an audit of the PPO "Time and Attendance" records during the period June 1999 through April 2001, a period that included the seven months in which Plaintiff Wilson was a PPO. (Id. ¶¶ 33, 35, 38.) The audit revealed errors in calculations of overtime for dozens of PPOs. As a result, in March 2003, Defendant made more than 5,000 hours in total adjustments by adding hours to or deducting hours from these PPOs' records. (Id. ¶ 49; Plaintiff's 56.1(a)(3) Statement of Undisputed Material Facts (hereinafter "Pltf.'s 56.1 Stmt.").) One of the largest adjustments was to Plaintiff Wilson's records; specifically, following the audit, Defendant credited Wilson with 36 additional hours of non-FLSA compensatory time. (Def.'s 56.1 Stmt. ¶ 49.)

  With respect to these 36 hours, Smith determined that the district timekeeper had failed to include eight hours of non-FLSA compensatory time for the January 1, 2000 New Year's Day holiday. (Def.'s 56.1 Stmt. ¶ 45.) She also determined that the timekeeper had mistakenly placed the total of earned FLSA straight time and non-FLSA compensatory time in an incorrect box on Wilson's Time and Attendance Record for both the May 14, 2000 to June 10, 2000 and June 11, 2000 to July 8, 2000 periods (referred to as "Cycle 6" and "Cycle 7," respectively.) (Id. ¶¶ 46-47.) Defendant asserts that these two 28-day cycles were the only ones in which Plaintiff Wilson earned any FLSA overtime. (Id. ¶ 44.)*fn1 First, during the period May 14, 2000 through June 10, 2000 ("Cycle 6"), Wilson worked 180.5 hours, or 9.5 hours in excess of 171 hours. Similarly, between June 11, 2000 and July 8, 2000 ("Cycle 7"), Wilson worked 217.5 hours, or 46.5 hours over 171 hours. (Id. ¶¶ 40-44, 52, 54; Ex. B to Ex. 4 to Def.'s Mem.) According to Defendant, Wilson earned a total of 84 compensatory hours (46.5 9.5 = 56; 56 x 1.5 = 84) during Cycles 6 and 7. Defendant contends that Wilson used all of these 84 hours by taking compensatory time between May 31, 2000 and May 5, 2001. (Def.'s 56.1 Stmt. ¶ 53.)

  Defendant insists that the errors uncovered in Smith's audit "did not change the total balance of the 26 hours of FLSA half-time that Wilson was entitled to receive for working in excess of 171 hours in Cycles 6 and 7," (id. ¶ 48), but the court is unable to verify this assertion from the materials Defendant has submitted. The expression "half-time" is, initially, confusing; the court would expect that in crediting an officer for FLSA overtime, the CPD might simply record a single figure equal to one-and-one-half the number of overtime hours worked. From its own review of the records, the court understands, instead, that the CPD initially records additional hours equal to the number of overtime hours worked, and then records yet another entry, in the amount of one-half the number of overtime hours worked. (See Smith Aff., Ex. 5 to Def.'s 56.1, at ¶ 11, 13.)*fn2 Again from its own review of the records, the court is unable to conclude that Smith's audit "did not change the total balance of the 26 hours of FLSA half-time" to which Wilson was entitled. Instead, the figures in Officer Smith's affidavit reflect that Mr. Wilson should have been credited with 28 hours of half time for work performed in Cycles 6 and 7 (4.75 half-time hours for Cycle 6 plus 23.25 half-time hours in Cycle 7 equals 28 hours, not 26 hours).

  Defendant asserts, further, that the 36-hour error Officer Smith detected in Wilson's records was "not based on the timekeeper's failure to calculate Wilson's FLSA overtime at the rate of time and one half." (Id. ¶ 50.) Again, however, because Defendant has not explained precisely how this 36-hour figure was calculated, the court is unable to verify this assertion, either.

  The court recognizes that Plaintiff bears the burden of proving that his FLSA rights were violated, and has presented little indication that he will be able to meet that burden. Indeed, in his deposition, Wilson acknowledged that he is unable to determine whether any of the 36 hours credited to him related to FLSA overtime. (Id. ¶ 51.) He acknowledged, further, that, based on the overtime hours that he recorded in his Fraternal Order of Police handbook, the CPD has recorded his compensatory time accurately, with the exception of one hour each on April 25, 2000 and June 18, 2000. (Pltf.'s 56.1 Stmt. ¶ 1; Wilson Dep., Ex. 2 to Def.'s Mem., at 65.) He also testified that he had neglected to record at least four hours of compensatory time in his handbook for which the City had nevertheless compensated him. (Defendant's Reply to Plaintiff's 56.1(a)(3) Statement of Undisputed Material Facts (hereinafter "Def.'s Reply to Pltf.'s 56.1 Stmt.") ¶ 1; Wilson Dep., at 55-57, 59.)

  The court is nevertheless unable to conclude that there are no material disputes of fact in the record now before the court. Wilson notes that Defendant has provided him with two different versions of his Time and Attendance Records and submitted yet another version to the court. As a result, he urges, he "cannot confirm" Defendant's statements regarding his hours. (Wilson's Response to Defendant's Statement of Material Undisputed Facts (hereinafter "Pltf.'s Resp. to Def.'s 56.1 Stmt.") ¶¶ 40-48, 50, 52-55; Pltf.'s 56.1 Stmt. ¶¶ 2-3; Exs. 2-4 to Wilson's Response to Defendant's Motion for Summary Judgment (hereinafter "Pltf.'s Resp. Mem."). Wilson even suggests that he "cannot be sure which, if any of these Time and Attendance Records were altered prior to being supplied to Wilson and this Court." (Pltf.'s Resp. to Def.'s 56.1 Stmt. ¶¶ 40-50, 52-55, citing Exhibits 2, 3, and 4.) Unfortunately, Wilson does not identify significant differences between the three sets of records himself, but the court's own review leaves at least some questions unanswered. As noted above, two of the three sets of records appear to be copies of the first, with additional annotations. Defendant claims that these three sets of records do not materially differ. (Def.'s Reply to Pltf.'s 56.1 Stmt. ¶¶ 2-3.) It does appear that the hours of work recorded in Cycles 6 and 7 on these three sets of time sheets are the same; the totals for those Cycles, however, as set forth on the versions that Plaintiff has submitted as Exhibits 3 and 4, have been altered by hand The time sheet in Exhibit 2 (apparently the original unaltered record) indicates that Wilson worked 180.5 hours during Cycle 6 and earned 4.75 FLSA "half-time" hours and 28.5 hours of non-FLSA compensatory time. For Cycle 7, Exhibit 2 suggests that Wilson worked 217.5 hours, earning 23.25 FLSA "half-time" hours and 42.25 hours of non-FLSA compensatory time. Plaintiff's Exhibit 4 (which is identical to the corresponding Exhibit B to Defendant's Exhibit 4) reflects these same figures, but a line has been drawn through the 42.25 non-FLSA figure. Plaintiff's Exhibit 3 shows that non-FLSA compensatory time for Cycle 6 has been changed to 33.25 hours. For Cycle 7, a line is drawn through a box indicating that Wilson worked 8 hours of "Actual Overt[ime]" on July 4, 2000; apparently as a consequence, his total number of hours worked is reduced by 8 hours, to 209.5. The sheet also indicates that Wilson received 16 hours of "Comp[ensatory] Time." Unfortunately, Defendant has not offered any explanation for the existence of three different sets of records, nor has Defendant explained the apparent alterations. Although it appears that none of the alterations affect Wilson's FLSA-compensatory time totals, the court is unable to make that determination without explanation from Defendant.

  Compensation for Meal Time

  Wilson claims that the City's failure to treat PPOs' half-hour meal periods as hours worked violates the FLSA. (Pl.'s Resp. to Def.'s 56.1 ¶ 64.) His sole apparent basis for this claim is the fact that PPOs are assigned to shifts that span eight-and-one-half hours. The parties agree that a PPO who is called upon to perform law enforcement duties during his scheduled meal period is entitled to overtime pay, but Defendant asserts that the half-hour meal period is ordinarily nonworking time. (Id. ¶ 68.) In its interrogatories, Defendant asked Wilson to "[i]dentify the specific month, day and year that you contend that you did not receive a meal period while you were a probationary police officer because you were directed to perform work on behalf of the Chicago Police Department." (Ex. 7 to Def.'s Mem., at 4.) Wilson responded that PPOs "are unable to leave their sector during their meal period" and must respond to calls if they are needed during the meal break. (Id.) In his deposition, Wilson testified that, "when you're a policeman, . . . you eat in your district during your 8-hour shift. . . . I just can't take the squad car and go home." (Def.'s 56.1 Stmt. ¶ 66.) Wilson acknowledged in his deposition, however, that he did not submit any overtime slips for time worked during meal ...

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