United States District Court, N.D. Illinois
[Copyrighted Material Omitted]
For Alexander Caraballo, Joann Disalvo, Fredric L. Dokey, Jr., John T. Hubley, David Jamison, John Kevin Kaveney, Kenneth S. Kosmoski, Vincent Lewis, Joseph J. Pullano, Ronald E Rysztogi, Mary M. Wheatley, also known as, Christopher D. Wheatley, Daniel J. Wheatley, Plaintiffs: Jac A. Cotiguala, LEAD ATTORNEY, Jac A. Cotiguala & Associates, Chicago, IL; Brian Massatt, Law Offices of Jac A. Cotiguala & Associates, Chicago, IL.
For City of Chicago, a Municipal Corporation, Defendant: Jennifer Anne Naber, LEAD ATTORNEY, Joseph Michael Gagliardo, Laner Muchin, Ltd., Chicago, IL; George Ronald Thomson, City College of Chicago, Chicago, IL; Joseph Francis Graham, Kathleen Veronica Crowe, City of Chicago, Law Department, Chicago, IL; Matthew Patrick Kellam, Sara Paull Leitenberger, Laner Muchin, Ltd., Chicago, IL.
JOHN W. DARRAH, United States District Court Judge.
MEMORANDUM OPINION AND ORDER
Plaintiff David L. Jamison has filed for summary judgment, arguing that Defendant City of Chicago failed to properly pay Jamison, and other paramedics, one and one-half times his regular rate of pay for all hours worked over forty hours in a week, in violation of the Fair Labor Standards Act, 29 U.S.C. § § 201 et seq. (the " FLSA" ). The City has cross-filed for partial summary judgment, arguing that the City complied with the FLSA in the methodology it used to calculate paramedics' overtime compensation and that the City did not engage in any willful conduct to violate the FLSA.
Pending before this Court are the following FLSA lawsuits filed on behalf of Emergency Medical Services paramedics employed by the City of Chicago Fire Department:
Alvarez v. Chicago, 06-cv-4639; Caraballo v. Chicago, 07-cv-2807; Baley v. Chicago, 09-cv-228; and Canby v. Chicago, 12-cv-669. Jamison is a named Plaintiff in the Caraballo action, and his claim contains examples of all of the FLSA pay issues disputed in the above cases. Because the procedural history of this matter is long and complicated, a brief summary is necessary for context.
Judge Hibbler originally presided over this matter, Caraballo v. Chicago, 07-cv-2807, which was consolidated with another case, Alvarez, et al. v. City of Chicago, 06-cv-4639. On March 18, 2009, after extensive discovery, Judge Hibbler granted the City's motion for summary judgment against both the Alvarez and Caraballo Plaintiffs because their claims were heterogeneous. Caraballo, et al. v. City of Chicago, Nos. 06-cv-4639, 07-cv-2807, 2009 WL 743315, at *6 (N.D. Ill. Mar. 18, 2009). Judge Hibbler dismissed the collective action Complaints without prejudice to allow Plaintiffs to pursue their collective overtime pay claims through the arbitration provision contained in the collective bargaining agreement (the " CBA" ) entered into between Plaintiffs and the City. Id.
On July 7, 2009, this Court granted summary judgment in favor of the City in another FLSA matter, Baley v. Chicago, No. 09-cv-228, 2009 WL 1953132 (N.D. Ill. July 07, 2009), holding that there was no factual dispute that Plaintiffs were heterogeneous and that their claims could not proceed as a collective action. On October 29, 2009, the judgment was clarified to hold that Plaintiffs' claims were dismissed without prejudice with leave to file individual claims.
Subsequently, in Alvarez v. City of Chicago, 605 F.3d 445 (7th Cir. 2010), the Seventh Circuit reversed the district court's dismissal of the named Plaintiffs' claims and remanded for proceedings consistent with its opinion. Id. at 451. The Seventh Circuit also entered an order, vacating the summary judgment opinion in Baley v. Chicago, 09-cv-228, and remanded the case for proceedings consistent with its opinion in Alvarez. See Baley v. Chicago, No. 09-cv-228, 2011 WL 2214673 (N.D. Ill. Jun. 02, 2011). After remand, on November 11, 2011, Judge Hibbler ordered that the consolidated cases, Caraballo and Alvarez, would proceed with Plaintiff Jamison as the representative plaintiff. (Dkt. # 156.) In April 2012, Caraballo and Alvarez, as well as another FLSA case, Canby v. Chicago, 12-cv-669, were reassigned to this Court, to be decided along with Baley v. Chicago, 09-cv-228.
The facts regarding the City's timekeeping procedures and how it pays its paramedics are generally not in dispute. ( See generally Def.'s Responses to Plaintiff's Local Rule 56.1(a)(3) Statement of Undisputed Material Facts (" Def. Resp. to SOF" ).) The City's current compensation structure for its paramedics is derived, in part, from prior litigation. Prior to 1995, the City compensated both its firefighters and paramedics under the FLSA's Section 207(k) limited overtime exemption for public sector employees who engage in fire protection activities and law enforcement. The applicable CBA that covered both the City's firefighters and paramedics contained a compensation structure, including overtime premiums, based on a fire platoon schedule. (Defendant's Local Rule 56.1(a)(3) Statement of Undisputed Material Facts ¶ 4 (" Def. SOF" ).) However, in Alex, et al. v. City of Chicago, 29 F.3d 1235 (7th Cir. 1994), the Seventh Circuit held that the Section 207(k) did not apply to paramedics and that, consequently, the City was obligated to compensate its paramedics FLSA overtime pay for hours
worked in excess of forty in a seven-day workweek.
Following the Seventh Circuit's decision in Alex, the City and the paramedics' union participated in multiple negotiations of the CBA regarding the paramedics' pay structure. (Pl.'s Resp. Br. at 1.)  The City adjusted the paramedics' schedule to a " paramedic platoon schedule," which is 24 hours on-duty followed by 72 hours off-duty. This schedule is a seven-day workweek that includes either one or two 24-hour shifts. (Def. SOF ¶ 5.) Paramedics typically work a scheduled shift rotation of three, 48-hour weeks, followed by one, 24-hour week. (Plaintiff's Local Rule 56.1(a)(3) Statement of Undisputed Material Facts (" SOF" ) ¶ ¶ 7-8.) The CBA includes the following provisions regarding hours of work:
The normal on duty tours of duty shall be twenty-four (24) consecutive hours on duty . . . followed by seventy-two (72) consecutive hours off duty . . . The normal weekly work period shall be the seven (7) days from Sunday through Saturday. . .
Employees authorized to work any time on duty in addition to the normal shifts as defined in this Article shall be considered as working overtime hours, subject to the overtime rate provision of this Agreement.
(Def. SOF ¶ 7 and Exs. 4 and 5 at § § 4.1-4.5).
All paramedics receive an annual salary, which is paid in twenty-four equal payments and issued twice a month. (Def.'s Resp. to SOF ¶ 16; see also Def. SOF ¶ 8.) For their regularly scheduled shifts of 48-hour weeks, paramedics receive additional payment for the extra eight hours worked over forty at a rate of half (50 percent) their straight-time hourly rate. (Def.'s Resp. to Pl. SOF, Exh. 7.) If paramedics work overtime outside of their regularly scheduled shifts, according to the CBA, they receive pay at the rate of one and a half (150 percent) times their straight-time hourly rate of time, regardless of whether that regular schedule was a 24-hour or a 48-hour week. (SOF ¶ ¶ 17, 37; Def. SOF ¶ 8.) 
Pursuant to the CBA, the City makes certain, additional payments that are not calculated into the paramedics' regular rate for purposes of determining overtime pay. Two of these payments are automatic: " Duty Availability Pay" and " Uniform Pay" (an allowance for uniforms that was paid only until March 1, 2007, as specified in the CBA). (SOF ¶ ¶ 27-29.) The other payments are conditional and therefore paid to paramedics fulfilling certain conditions: (1) " Acting Pay," paid for performing the work of a higher ranking and higher paid position (SOF ¶ 19); (2) " Driving Pay," paid for performing duties related to driving ambulances (SOF ¶ 21); (3) " Fitness Pay," paid for passing an annual physical fitness test (SOF ¶ 23); (4) " Specialty Pay," paid to paramedics certified as divers or hazardous materials technicians (SOF ¶ 25); and (5) " Continuing Education Pay," paid for paramedics attending continuing education classes outside of their regularly scheduled shifts (SOF ¶ 18).
Summary judgment is proper " if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The moving party bears the initial responsibility of informing the court of the basis for its motion and identifying the evidence it believes demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party meets this burden, the nonmoving party cannot rest on conclusory pleadings but " must present sufficient evidence to show the existence of each element of its case on which it will bear the burden at trial." Serfecz v. Jewel Food Stores, 67 F.3d 591, 596 (7th Cir. 1995) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). A mere scintilla of evidence is not sufficient to oppose a motion for summary judgment; nor is a metaphysical doubt as to the material facts. Robin v. ESPO Eng'g Corp., 200 F.3d 1081, 1088 (7th Cir. 2000) (internal citations omitted). Rather, the evidence must be such " that a reasonable jury could return a verdict for the nonmoving party." Pugh v. City of Attica, Ind., 259 F.3d 619, 625 (7th Cir. 2001) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).
In considering a motion for summary judgment, the court must view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in the nonmoving party's favor. Abdullahi v. City of Madison, 423 F.3d 763, 773 (7th Cir. 2005) (citing Anderson, 477 U.S. at 255). The court does not make credibility determinations or weigh conflicting evidence. Id.
The parties' Cross-Motions for Summary Judgment present the following issues: (1) whether the City should have included additional payments made to the paramedics when calculating their regular rate for purposes of overtime under the FLSA; (2) whether the City properly used the " fluctuating work week" methodology for calculating the paramedics' hourly rate under the FLSA; (3) whether the City is entitled to overtime credits to offset any FLSA liability; (4) whether the City properly included certain continuing education hours as hours worked for purposes of calculating overtime compensation; and (5) whether the City acted willfully to violate the FLSA. Each of these issues is addressed in turn.
The Exclusion of Certain Payments in Calculating the Paramedics' Regular Rate
Under the FLSA, a nonexempt employee who works more than forty hours in a given week must be compensated for those excess hours. 29 U.S.C. § 207(a)(1). An employee's overtime rate is calculated based on his " regular rate" at which he is employed.  The FLSA defines the " regular rate" to " include all remuneration for employment paid to, or on behalf of, the employee," subject to certain exclusions. 29 U.S.C. § 207(e). In the case where an employee receives an annual salary, his regular rate for these purposes is computed
by dividing the " total remuneration for employment (except statutory exclusions) in any workweek by the total number of hours actually worked by him in that workweek for which such ...