The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
LARRY CARTER, et al.,
Case No. 5:18-cv-04404-JDW
v.
CITY OF PHILADELPHIA,
MEMORANDUM
Mental Health Emergency Service Coordinators (“MHESC”) filed this civil suit
alleging that the City of Philadelphia violated the Fair Labor Standards Act by
misclassifying them as exempt and failing to pay overtime wages. The Court granted
summary judgment on the misclassification issue. It held a bench trial on damages. After
thorough consideration of the evidence presented at trial and relevant law, the Court
makes the following findings of fact and conclusions of law pursuant to Fed R. Civ. P. 52(a).
I. FINDINGS OF FACT
A. Creation Of The MHESC Position
1. At all relevant times, the City of Philadelphia has employed each Plaintiff as
a MHESC.
2. The City created the MHESC job classification in 1987 pursuant to the
process in its Civil Service Regulations for creating new positions.
3. Under the Civil Service process, the City’s Office of Human Resources and at
least one operating department work together to define the job role at issue by describing
and documenting typical examples of work along with any educational or experiential
requirements.
4. The Office of Human Resources distributes the resulting document, known
as a job specification, to various stakeholders, including unions if the position is union-
represented, before presenting it to the City’s Civil Service Commission at a monthly
public meeting for the Commission’s approval.
5. In 1987, following its Civil Service procedures, the City defined the MHESC
responsibilities and experiential requirements at creation as follows:
This is a full performance mental health work consulting, advising, and
providing a facilitative service to mental health professionals and other
city workers on matters pertaining to accessing and managing care for
seriously mentally ill persons. Crisis intervention. Referral, and
information services are additionally provided for individuals having
mental, emotional and social problems. Employees in this class act on
behalf of the county administrator, ensuring that actions of the public
and professionals in the field are in accordance with established legal
mandates, state law and the office’s policies and procedures. Work
involves frequent telephone contact with members of the general
public, social and mental agency staff, and medical and mental health
care professionals, on mental health matters. Significant aspects of the
work include reviewing, evaluating, and authorizing psychiatric
commitment requests, assessing, prioritizing and diverting psychiatric
emergencies, deploying resources, and handling a variety of situations
which may be deemed as a threat to life or public safety. Work is
performed under the supervision of a technical supervisor.
(Ex. 20 at Appx. 185.)
6. The City also defined the MHESC experiential requirements:
Completion of a master’s degree program at an accredited college or
university with major coursework in psychology, nursing, sociology or
social work. One year of counseling or administrative experience
handling psychiatric emergencies, which included voluntary or
involuntary commitments. Or any equivalent combination of
education and experience determined to be acceptable by the
Personnel Department which has included the completion of a
bachelor’s degree as an educational minimum.
( at Appx. 186.)
7. The Civil Service follows the same procedures when revising existing job
descriptions as it does when creating a new one.
8. The City revised the MHESC job class specification in 2003, 2010, and 2017.
9. In 2003, the City revised the experiential requirement from one year to two,
and it added language to the general job description stating, “positions in this class are
required to work any operational on-site or standby shift as necessary. . .” ( at Appx.
171-176.)
10. In 2010, the City added “mental health counseling” and removed “nursing”
from the job class education requirements, and it increased the amount of general
experience required from one year to two. ( at Appx. 178.)
11. In 2017, the City revised language within the job specification to conform
with current nomenclature on disabilities.
B. FLSA Classifications Of MHESCs
12. Since at least 1987, the Office of Human Resources has reviewed newly
created job positions to determine whether the FLSA covers them.
13. To make FLSA exemption determinations, the Office of Human Resources
might have further discussions with a position’s department about the level of
responsibility and scope of functions for the position.
14. The Office of Human Resources may also seek advice from the City Law
Department when it has questions about application of the FLSA.
15. There is no record of the City requesting outside counsel or advice from any
state or federal agency with regards to the MHESCs’ FLSA determination.
16. As Deputy Director for Hiring Services for the City of Philadelphia, Janine
Labletta is responsible for reviewing FLSA job classifications. Ms. Labletta is familiar with
the FLSA via her role within the City of Philadelphia’s Office of Human Resources, but she
does not have any specialized legal expertise or training.
17. The City maintains a process to permit position incumbents or their
bargaining representatives to file “FLSA Status Appeals,” which are questionnaires that
document the scope of functions and responsibilities for the position(s) in question. The
Office of Human Resources then uses the FLSA Status Appeals to assess whether the City
has made the correct FLSA designation for the position.
C. MHESC Job Responsibilities
18. At all relevant times, the MHESCs have been part of the City’s Acute Services
Unit. The City employs more than a dozen individuals in this role.
19. MHESCs provide 24 hour-a-day, 7 day-a-week coverage of suicide
prevention and mental health crisis intervention phone lines.
20. MHESCs worked forty hours of regularly scheduled time per week.
21. The suicide prevention and mental health crisis intervention lines receive
calls from people who are in crisis, their family members, doctors, mental health centers,
crisis centers, and members of the general public.
22. The MHESCs’ service responsibilities vary by call type. With suicide
prevention line calls, MHESCs are responsible for keeping callers on the line while
involving co-workers to get support services to them.
23. When answering crisis intervention line calls, MHESCs may connect with
other behavioral health services, but they may also be asked to dispatch a mobile
emergency team or approve a petition for involuntary commitment.
24. If asked to dispatch a mobile emergency team, an MHESC takes the caller’s
information and provides it to a team that makes the ultimate decision on whether to go
to the caller.
25. If asked to approve a petition for involuntary commitment, an MHESC may
only approve the petition if the behavior described meets four criteria in the Mental
Health Procedures Act.
26. Once an MHESC approves an involuntary commitment petition, the police
take the individual in crisis to a crisis response center for a psychiatric evaluation.
27. MHESCs counsel distressed callers in the colloquial sense, but they do not
provide clinical counseling.
28. The majority of MHESCs are not licensed to conduct clinical counseling.
D. MHESC Compensation Prior To October 2020
29. MHESCs are unionized employees. AFSCME District Council 47, Local 2187,
represents them and negotiates the terms and conditions of their employment, including
wages.
30. MHESCs worked 8.5 hour shifts that started between 7:30 and 9 a.m. or that
started between 4 and 5:30 p.m. They worked those shifts at a City office in Philadelphia.
31. In order to ensure 24/7 coverage of the phone lines, the City also required
MHESCs to work “standby” shifts overnight, on weekends, and on holidays. Standby shifts
generally lasted 7 hours, and MHESCs worked three standby shifts each week.
32. MHESCs worked standby shifts at home. They had to answer incoming calls
within three rings and remain close to a phone’s base.
33. The MHESCs received an hourly rate, known as “Rate 1,” for any regularly-
scheduled time that they worked between 8:00 am and 12:00 am on a weekday. The Court
refers to Rate 1 as the “Office Rate.”
34. Absent specific Civil Service Regulations to the contrary, the City
compensates all Union-represented employees with either cash or compensatory time for
work performed beyond eight hours in a day and time worked on regular days off.
Phila. Civ. Serv. Reg. (“C.S.R.”) 6.1131 (detailing overtime compensation paid to employees
represented by District Council 47, Local 2187).
35. Per this regulation, MHESCs received one-and-a-half times the Office Rate
for overtime hours that they worked between 8:00 a.m. and 12:00 a.m. on a weekday or if
they performed certain activities on the weekend.
36. MHESCs received an additional shift differential for Office Rate work they
completed between 4 p.m. and 8 a.m.
37. The City paid MHESCs a lower rate, known as “Rate 2,” or a “Standby Rate,”
for all work that they completed at home between 12:00 a.m. and 8:00 a.m. on weekdays,
and most work completed on weekends. C.S.R. 6.155.
38. The City has paid MHESCs at this lower rate for overnight and weekend work
since at least 1997.
39. Before the City adopted C.S.R. 6.155, it presented it to the Union. The Union
had the opportunity to challenge that regulation, but it never did so.
40. MHESCs performed the same work during standby from home as they did
during regularly scheduled time at the office.
41. MHESCs routinely worked over 20 hours per week of standby shifts, for
which the City paid them the Standby Rate.
42. MHESCs’ pay rates varied only based on the time of day and/or day of the
week that they performed work, and where that work was performed, not how many hours
a particular MHESC worked or was scheduled to work during the week in question.
43. The City’s adoption of the Standby Rate was an exception to its general rule
concerning payment of overtime and was specific to MHESCs. C.S.R. 6.155.
44. The Union could have demanded to bargain an increase to the Standby Rate
but did not do so.
45. City employees authored several memoranda in 1997 evincing a desire to
increase the Standby Rate that the City would pay MHESCs. Those memoranda
acknowledged that the hours that the City designated as “standby” would ordinarily
qualify as overtime under the city’s Collective Bargaining Agreement. The memoranda
suggested that paying an increased Standby Rate would be a lower-cost alternative to
hiring additional staff to cover the standby shifts.
46. After the exchange of the memoranda in 1997, the City elected not to raise
the pay rate for standby time to time-and-a-half.
47. MHESCs often voiced concerns to their supervisors that they did not receive
overtime pay for overnight or weekend work.
48. Lowell Kennedy, a former MHESC, informed Dave Mora, a union
representative, that MHESCs were not paid overtime for night and weekend work.
49. Plaintiff Larry Carter, a former shop steward for Local 2187, also discussed
with Mr. Mora and Cathy Scott, another union representative, that MHESCs were not
being paid overtime for night or weekend work.
50. The CBA between the City and the Union contains a grievance procedure
that permits either party to the agreement to raise disputes or disagreements over the
interpretation or application of the agreement.
51. Under the Parties’ negotiated grievance procedure, any dispute must first
go through the existing grievance procedure; if the parties cannot resolve the dispute,
either party may refer the dispute to binding arbitration conducted in accordance with
the Voluntary Rules of Labor Arbitration of the American Arbitration Association.
The Union filed a grievance over the pay for MHESCs; the City denied the grievance, and
it is now pending in arbitration.
E. Late Overtime Payments
52. In or around March of 2018, the City of Philadelphia switched its payroll
processing from a legacy system to “One Philly.”
53. After the City switched to One Philly, MHESCs complained about having
their pay delayed by several months.
54. Two MHESCs, Kimberly Rodriguez and Leslie Davis, testified that their
respective overtime payments were each delayed by several months.
55. The City’s Office of Human Resources maintained a list of the inaccurate and
late payments, but that list is not before the Court.
56. The City has offered no explanation for the alleged late payments.
F. Procedural History
57. On October 12, 2018, ten MHESCs filed a complaint in this matter alleging
violations of the Fair Labor Standards Act, 29 U.S.C. § 203 for the failure to pay
overtime compensation. The ten plaintiffs are Catherine Mackey-Gaither, Ms. Davis,
Sharon Agbede, Tiara Council, Rochelle Morris, Jennifer Jubilee, Mr. Carter, Gregory
Garner, Ms. Rodriguez, and the Estate of Tiffany Capers-Allen.
58. In July of 2019, the Parties filed cross-motions for summary judgment.
Neither motion, nor the Parties’ responses and replies to those motions, raised the issue
of how to calculate the MHESCs’ regular rate for the purposes of determining damages.
( ECF Nos. 11, 12, 15, 17, 18.)
59. The Court denied the City’s motion but granted the MHESCs’ motion,
holding that the City improperly classified the MHESCs as exempt from the FLSA’s
overtime requirement.
60. In the Memorandum granting summary judgment, the Court stated,
“Plaintiffs are therefore entitled to receive overtime compensation at the rate of 1 ½ times
the regular rate at which they are employed on their regular shifts for all hours worked in
excess of 40 hours per week.” (ECF No. 20 at 24-25.)
61. On October 5, 2020, four additional MHESCs filed a separate suit under the
FLSA raising identical issues. , 2:20-cv-04911-JDW.
The plaintiffs in that case are Brian Buhler, Tiffany Hawkins, Shelly Brown, and Amanda
Winter. The Court consolidated the cases.
62. On September 10, 2021, the parties stipulated to several damages-related
facts, including (a) the back pay that the Court should award if it concludes that the Office
Rate provides the base rate for all overtime hours that MHESCs worked; (b) the back pay
that the Court should award if it concludes that a blended rate, consisting of a weighted
average of the Office Rate and Standby Rate, provides the base rate for all overtime hours
that MHESCs worked; and (c) the amounts of late overtime payments that each Plaintiff
claimed. ( ECF No. 51.)
63. The Court conducted a non-jury trial on damages on October 18-19, 2021.
II. CONCLUSIONS OF LAW
A. The Office Rate Applies To All Hours The MHESCs Worked
1. The FLSA does not permit the City to pay MHESCs an Office Rate for some
hours and a Standby Rate for other hours because there is no difference between the
work that MHESCs perform when the City pays the two different rates.
2. The FLSA is silent as to compensation plans that purport to set different
rates for the same work, but the interpretive guidance from the Department of Labor’s
Wage and Hours Division (“WHD”) is clear that where parties agree on a particular rate
for specified work, they cannot “lawfully agree that the rate for that work shall be lower
merely because the work is performed during the statutory overtime hours, or during a
week in which statutory overtime is worked.” 29 C.F.R. § 778.316. Because the parties
cannot agree to such an arrangement, any agreement that only “the hours worked
between certain fixed hours of the day or only the first 40 hours of any week will be
counted as working time will clearly fail of its evasive purpose.”
3. WHD’s guidance “constitute[s] a body of experience and informed
judgment to which courts and litigants may properly resort for guidance.”
, 873 F.3d 420, 426–27 (3d Cir. 2017) (quoting
, 323 U.S. 134, 140 (1944)).
4. To determine the deference that a court should afford to WHD’s
interpretations of the FLSA, the Third Circuit has adopted a “‘sliding-scale’ test in which
the level of weight afforded to an interpretation varies depending on [the] analysis of the
enumerated factors.” at 427 (citations omitted). Those
factors include whether the interpretation was (1) issued contemporaneously with the
statute; (2) consistent with other agency pronouncements; (3) reasonable given the
language and purposes of the statute; (4) within the expertise of the relevant agency; and
(5) part of a longstanding and unchanging policy.
5. The Court concludes that the WHD’s interpretation should receive
substantial deference under . Although WHD did not issue its guidance at the
time Congress adopted the FLSA, its interpretations of the regulations controlling this
dispute have been consistent. The Department of Labor has consistently held that
individuals should be compensated for each hour worked over forty at a rate not less than
one and one-half times the regular rate at which the employee is actually employed.
29 C.F.R. § 778.101; 29 C.F.R. § 778.107; 29 C.F.R. § 778.109; 29 C.F.R. § 778.315.
It is also consistent in finding that the regular rate cannot be left to a declaration by the
parties, but that it is “the hourly rate actually paid the employee for the normal,
nonovertime workweek for which he is employed—an “actual fact.” 29 C.F.R. § 778.108
(quoting , 325 U.S. 419).
6. The WHD’s interpretation is reasonable given the language and purpose of
the FLSA. In enacting the FLSA, Congress recognized the effect of labor conditions that
are “detrimental to the maintenance of the minimum standard of living necessary for
health, efficiency, and general well-being of workers.” 29 U.S.C. § 202(a). Safeguarding
employees from compensation schemes that manipulate overtime to a lower rate than
allowed under the FLSA protects employee efficiency and general well-being by providing
employees with compensation commensurate with their efforts
7. Finally, the interpretive guidance found in section 778.316 is within the
WHD’s expertise (29 U.S.C. § 204(a)), and it is both longstanding and unchanging. The text
of the rule today is identical to the text of the rule when it WHD adopted it in 1968.
33 FR 986-01.
8. Consistent with WHD’s guidance, once an employer and employee agree
upon a rate for a particular type of work, the FLSA does not permit them to evade its
requirements by adopting a pay structure that provides for a lower rate for statutory
overtime hours. 29 C.F.R. § 778.316.
9. The City compensated MHESCs at the Office Rate during any regularly
scheduled time worked between 8:00 am and 12:00 am on weekdays. The MHESCs
performed the same work when they worked standby shifts, but the City paid them a
Standby Rate. That arrangement has the effect of driving down the rate of compensation
that MHESCs receive if they worked standby shifts in a week that included more than 40
hours.
10. The FLSA did not permit the City to draw that distinction. The City had to
pay MHESCs the Office Rate for hours that they worked, including standby shifts, because
the work that they performed was the same.
11. The 1997 memos justifying an increased Standby Rate explain that the
alternative to having MHESCs work standby shifts was for the City “to hire the equivalent
of 12 additional full-time staff to handle the late night shift.” (Ex. 30 at Appx. 250.)
Understandably, the City did not want to incur that cost. And, while the 1997 memos
appear to focus on the City’s obligations under the CBA, rather than the FLSA, they also
demonstrate that the City’s purpose in setting up this compensation system was to evade
overtime obligations. The memos reveal that the pay structure evaded the FLSA’s
prohibition against setting a lower rate during weeks in which an MHESC worked statutory
overtime.
12. The City contends that this is really a “gap pay” issue. “‘[G]ap time’ is non-
overtime hours worked for which an employee is not compensated. Because an employee
has a sufficiently high hourly rate, when all compensated and non-compensated hours
are divided into the weekly pay, the employee's average hourly pay still exceeds the FLSA
minimum.” , 765 F.3d 236, 244 (3d Cir. 2014). “Gap time”
claims are claims that an employer failed to properly compensate employees for hours
worked that “fall between the minimum wage and the overtime provisions of the FLSA.”
at 243. But it’s not. Although in any given week, standby shifts might have come before
office shifts, MHESCs were scheduled for 40 hours in the office each week, meaning that
the effect of the standby shifts was consistently to push MHESCs past 40 total hours
worked for the week.
13. That said, if there was a week in which an MHESC worked less than 40 total
hours, including some hours for which the City paid a Standby Rate, then the City would
not have to pay the Office Rate because the FLSA would not apply.
14. The City also claims that the Court should calculate overtime based on a
blended rate that reflects the weighted average of the hours that each MHESC worked
each week. But a weighted average only applies if the FLSA allows the City to distinguish
between office work and standby work. The statute does not allow that distinction.
15. Notably, the City’s approach to compensation would mean that an MHESC
who performed overtime tasks in the office received 1.5 times the Office Rate, but an
MHESC who performed those same overtime tasks on a shift designated “standby” would
be paid 1.5 times a blended rate. The City offers no principled basis to allow for such a
distinction, and the Court cannot conceive of one.
16. The City suggests that the Court should look to the CBA to determine the
applicable rate. But the CBA cannot modify the FLSA, which is a federal statute. Thus, even
if the City and Union intended to modify the FLSA, that aspect of the CBA would be void
as against public policy.
17. The Court will award each MHESC the amount of unpaid overtime set forth
in Exhibit B to the Parties’ Damages Stipulation (ECF No. 51-2).
B. The City Did Not Classify The MHESCs As Exempt In Good Faith
18. The Court decided in ruling on summary judgment that the City violated the
FLSA by classifying MHESCs as exempt.
19. An employer that violates the minimum wage or overtime provisions of the
FLSA “shall be liable” both for any unpaid compensation “and in an additional equal
amount as liquidated damages.” 29 U.S.C. § 216(b);
, 940 F.2d 896, 907 (3d Cir. 1991).
20. A District Court may, however, “in its sound discretion, award no liquidated
damages” or reduce the amount, “if the employer shows to the satisfaction of the court
that the act or omission giving rise to [the FLSA action] was in good faith and that [the
employer] had reasonable grounds for believing that [the] act or omission was not a
violation of the [FLSA].” 29 U.S.C. § 260. “Ignorance alone will not exonerate the employer,”
, 940 F.2d at 908 (quoting , 747 F.2d 121,
129 (3d Cir. 1984)), and “[t]o carry [its] burden, a defendant employer must show that [it]
took affirmative steps to ascertain the Act’s requirements, but nonetheless, violated its
provisions[.]” at 908.
21. The FLSA good faith defense has both a subjective and objective
component. , 747 F.2d at 129. The subjective component “requires that the
employer have an honest intention to ascertain and follow the dictates of the Act.” .
(quote omitted). The reasonableness inquiry “imposes an objective standard by which to
judge the employer’s conduct.” (cite omitted). An employer's failure to take “affirmative
steps to ascertain the legality of its pay practices” mandates an award of liquidated
damages. , 940 F.2d at 910
22. The City did not take reasonable steps to ascertain and follow the dictates
of the FLSA. There is no record of the City requesting an opinion from a lawyer—either
outside counsel or the City Law Department office—concerning the FLSA determination.
Nor is there any evidence that the City consulted any state or federal agency. Indeed, it
no longer knows how it first decided to classify MHESCs as exempt.
23. Without some evidence concerning the process that it used to make that
classification, the City cannot demonstrate its good faith.
24. When MHSECs complained about not being paid overtime, including to
their supervisors, the City did not perform any soft of investigation. The City was on notice
that this compensation plan might not be permissible. Regardless of whether the MHESCs
invoked the FLSA by name, they made numerous complaints about their overtime
compensation dating back to the early 2000s. Despite being on notice, the City did not
investigate whether the plan was FLSA compliant. Had it done so, the City would have
found the WHD’s interpretive guidance from section 778.316, but it did not, and the City
therefore bore the risk of ignoring the complaints and applicable guidance at its own peril.
25. The City cannot rely on an absence of grievances or complaints to
demonstrate its good faith. The burden of FLSA compliance falls on the City, not on
employees, unions, or anyone else. If the City could demonstrate good faith by relying on
third parties, it would effectively shift the compliance burden to those people. The FLSA
does not allow it to do so.
26. In addition, the City did get complaints about a lack of overtime. Employees
do not have to use magic words to trigger an employer’s obligation to reassess a
classification. When MHESCs complained, the City should have conducted a new analysis
of its FLSA classification. The record does not contain any evidence that the City did
anything to assess those complaints, which undermines any claim of good faith.
27. Because the City has not shown its good faith, the Court will award each
MHESC liquidated damages.
C. The City Did Not Willfully Violate The FLSA
28. Under the FLSA, a determination that an employer willfully violated the
statute extends the FLSA’s limitations period from two years to three. 29 U.S.C. §
255(a).
29. An employer “willfully” violates the FLSA “when the employer, at the time of
its FLSA violation, either ‘knew’ its conduct was prohibited by the FLSA or ‘showed reckless
disregard for the matter.’” , 872 F.3d 122, 126 (3d Cir. 2017)
(quoting , 486 U.S. 128, 133, (1988). “Acting only
‘unreasonably’ is insufficient—some degree of actual awareness is necessary.” . To prove
willfulness, a plaintiff must put forth at least some evidence of the employer’s awareness
of a violation of the FLSA overtime mandate. at 127 (citing, ,
824 F.3d 890, 907 (9th Cir. 2016)).
30. Although the Court concludes the City did not act in good faith in classifying
(and maintaining the classification) the MHESCs as exempt, the MHESCs offer no proof
that the City knew that its conduct violated the FLSA.
31. The City knew that MHESCs had complaints about their wages and overtime,
but the complaints did not invoke the FLSA. The 1997 memos, with their references to
holidays, nights, and weekends (periods that the CBA but not the FLSA designate as
overtime) only suggest that the City designed its conduct to save money in light of its
contractual overtime responsibilities. Nothing in the record speaks directly to the City’s
awareness of a violation of the FLSA.
32. The MHESCs also lack proof that the City acted recklessly, even though it
was wrong.
33. The complains that MHESCs made about overtime do not demonstrate the
City’s reckless disregard for its FLSA compliance obligations. The City could reasonably
have interpreted those complaints to be complaints about the CBA, not the FLSA. The
City’s failure to consider the FLSA implications of those complaints means it cannot
establish its good faith, but it does not rise to the level of reckless disregard. It just
demonstrates the City’s negligence in responding to those complaints.
34. The City’s other processes reinforce that, while it might have been negligent,
it did not recklessly disregard its FLSA compliance obligations. It created an open,
transparent process to review job specifications for accuracy, and it was not reckless for
the City to base its FLSA designations on those job specifications. It also created a process
to review FLSA classifications that was open both to job incumbents and their bargaining
representatives. While the existence of those processes does not establish the City’s good
faith, it also reflects an invitation and a willingness on the City’s part to consider concerns
about job classifications.
35. The Court concludes that the MHESCs have not carried their burden of
demonstrating the City willfully violated the FLSA.
D. The Court Awards Liquidated Damages For Late Overtime Payments
Only For The MHESCs For Whom There Is Evidence Of Late-Paid
Overtime
36. The FLSA requires employers to pay overtime promptly. 29 C.F.R. §
778.106. “As long as the overtime is paid as soon after the initial pay period as practicable,
‘the requirements of the Act will be satisfied.’” , No. 13-
6635, 2016 WL 3405449, at *2 (E.D. Pa. June 21, 2016) (quoting 29 C.F.R. § 778.106). The
WHD’s guidance on the matter states, “[p]ayment may not be delayed for a period longer
than is reasonably necessary for the employer to compute and arrange for payment of
the amount due and in no event may payment be delayed beyond the next payday after
such computation can be made.” 29 C.F.R. § 778.106.
37. Although the Parties do not dispute that the City had problems making
timely overtime payments after it switched to the One Philly payment system, Plaintiffs
only presented evidence of late payments to Ms. Rodriguez and Ms. Davis. For the other
Plaintiffs, the Court would have to assume that they suffered the same harm as Ms.
Rodriguez and Ms. Davis, and it has no basis to make such an assumption. Indeed,
Plaintiffs’ Proposed Findings of Fact and Conclusions of Law do not identify any evidence
to permit the Court to make that assumption,
38. The Court concludes that Plaintiffs have only proved by a preponderance of
the evidence that Ms. Rodriguez and Ms. Davis received late payments of overtime, so it
will only award liquidated damages to those two. For the other Plaintiffs, the Court
concludes that Plaintiffs have not satisfied their burden of proof.
39. Based on this conclusion, the Court will award Ms. Davis $6,445.89 in
liquidated damages, and it will award Ms. Rodriguez $9,955.27 in liquidated damages.
III. CONCLUSION
Plaintiffs have demonstrated by a preponderance of the evidence that the Office
Rate should apply to all hours they worked and that Ms. Davis and Ms. Rodriguez received
late payments of overtime wages. The City has not proved good faith, and Plaintiffs have
not proved the City’s willfulness or that any MHSEC other than Ms. Davis or Ms. Rodriguez
received a late payment of overtime. The Court will award damages in accord with these
findings of fact and conclusions of law. Based on the Parties’ stipulation concerning
damages found at ECF No. 51-2 (and, for Ms. Davis and Ms. Rodriguez, the amount of
late-paid overtime set forth in ECF No. 51-5), the amount to which each Plaintiff is entitled
is set forth below:
Name Amount
Gregory Garner $111,343.75
Jennifer Jubilee $125,976.88
Kimberly Rodriguez $260,077.34
Larry Carter $155,045.96
Leslie Davis $180,234.72
Rochelle Morris $165,501.25
Sharon Holmes-Agbede $85,665.30
Estate of Tiffany Capers-Allen $55,007.07
Catherine Mackey-Gaither $217,876.29
Tiara Council $80,439.59
Amanda Winter $46,607.99
Brian Buhler $69,924.21
Tiffany Hawkins $35,283.87
Shelly Brown $31,393.04
An appropriate Order follows.
BY THE COURT:
Hon. Joshua D. Wolson
United States District Judge
January 19, 2022