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Cunningham v. Fulton County

United States District Court, N.D. Georgia, Atlanta Division

March 29, 2019

Tracey Cunningham, et al., Plaintiffs,
Fulton County, Georgia, et al., Defendants.

          OPINION & ORDER


         Plaintiffs are over five hundred current and former Fulton County Sheriff's Office employees, including deputy sheriffs, custodial officers, clerks, and other non-emergency administrative employees. They sued Fulton County claiming the county violated the federal Fair Labor Standards Act and breached contracts in the manner it applied credits for overtime, vacation time, holiday pay, and sick leave. Plaintiffs seek $6 million in damages, attorneys' fees, and revisions to the County's personnel policies about the accrual of these benefits. The Court grants the County's motion for summary judgment; grants the County's motion for sanctions; denies Plaintiffs' cross-motion and partial cross-motion for summary judgment; denies Plaintiffs' cross motion for sanctions; and denies Plaintiffs' motion to certify class as moot.

         I. Factual and Procedural Background

         Fulton County has policies about holiday pay, vacation leave, sick leave, and compensatory time for employees of the Sheriff's Office. (Dkt. 98-6 at ¶ 34 (citing Dkt. 99-34 at 9:2-10, 8:25-9:4).) The County's policies trump any conflicting Standing Operation Procedures (“SOPs”), directives, memorandums, or orders from the Sheriff's Office. (Id. at ¶ 7 (citing Dkt. 99-37 at 9:5-8).) Plaintiffs work or worked for the Fulton County Sheriff's Office and earned holiday pay, vacation leave, sick leave, and compensatory time under these policies. Some Plaintiffs received copies of the County's policies and procedures and the Sheriff's Office's SOPs when hired. (Id. at ¶¶ 4, 20, 28.) The County updated its policies and procedures in November 2013, December 2015, and March 2017. (Id. at 35.) Plaintiffs routinely received emails about updates to the County policies and procedures and the Sheriff's Office SOPs. (Id. at ¶¶ 6, 21, 29, 35.)

         In February 2016, Plaintiffs filed this action alleging that Defendants use a “rollover” provision to deprive them of pay for accumulated overtime, vacation, holiday, and sick time. (Dkt. 35-1 at ¶¶ 33, 45, 52, 68.) Specifically, Plaintiffs allege the County unjustly enriches itself “by rolling over the employee's compensatory time, overtime, and vacation time into a category labeled sick time and then requiring the employee to forfeit all, or part of, the sick time upon leaving.” (Dkt. 35-1 at ¶ 38.) Plaintiffs claim this practice violates the Fair Labor Standards Act (“FLSA”) and breaches contracts. (Id. at ¶ 1.)

         Plaintiffs first sued the Fulton County Sheriff, seven Fulton County Commissioners, and the County. (Dkt. 1.) Plaintiffs filed an amended complaint and then a second amended complaint. (Dkts. 20, 35.) The Court dismissed all claims against the individual defendants and the FLSA claims against the County, leaving only breach of contract claims against the County. (Dkts. 43, 44.)

         Both the County and Plaintiffs have filed motions for summary judgment on the remaining claims. (Dkts. 97, 104.) Plaintiffs have also filed a partial cross-motion for summary judgment and a third motion to certify class. (Dkts. 54, 103.) The parties have filed cross-motions for sanctions for discovery violations. (Dkts. 95, 102, 106.)

         II. Cross Motions for Summary Judgment

         A. Legal Standard

         Summary judgment is appropriate when “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). “No genuine issue of material fact exists if a party has failed to ‘make a showing sufficient to establish the existence of an element . . . on which that party will bear the burden of proof at trial.' ” AFL-CIO v. City of Miami, 637 F.3d 1178, 1186-87 (11th Cir. 2011) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). An issue is genuine when the evidence is such that a reasonable jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986).

         The moving party bears the initial responsibility of asserting the basis for his motion. See Celotex Corp., 477 U.S. at 323. The movant is not, however, required to negate the non-movant's claim. Instead, the moving party may meet his burden by “‘showing' - that is, pointing to the district court - that there is an absence of evidence to support the nonmoving party's case.” Id. at 325. After the moving party has carried its burden, the non-moving party must present competent evidence that there is a genuine issue for trial. Id. at 324.

         The Court views all evidence and factual inferences in a light most favorable to the non-moving party. See Samples v. City of Atlanta, 846 F.2d 1328, 1330 (11th Cir. 1988). But the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Anderson, 477 U.S. at 248. “The requirement is that there be no genuine issue of material fact.” Id. The essential question is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-52.

         “Finally, the filing of cross-motions for summary judgment does not give rise to any presumption that no genuine issues of material fact exist.” Glenn v. Brumby, 724 F.Supp.2d 1284, 1295 (N.D.Ga. July 2, 2010). “Rather, ‘[c]ross-motions must be considered separately, as each movant bears the burden of establishing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law.' ” Id. (quoting Shaw Constructors v. ICF Kaiser Eng'rs, Inc., 395 F.3d 533, 538-39 (5th Cir. 2004)).

         B. Discussion

         The summary judgment analysis starts with consideration of the elements of the claim - here, breach of contract. “The elements for a breach of contract claim in Georgia are the (1) breach and the (2) resultant damages (3) to the party who has the right to complain about the contract being broken.” Bates v. JPMorgan Chase Bank, NA, 768 F.3d 1126, 1130 (11th Cir. 2014) (quoting Norton v. Budget Rent A Car Sys., Inc., 705 S.E.2d 305, 306 (Ga.Ct.App. 2010)). “[T]he party asserting the existence of a contract has the burden of proving its existence and its terms.” Sherman v. Dickey, 744 S.E.2d 408, 411 (Ga.Ct.App. 2013).

         In moving for summary judgment, the County argues that Plaintiffs failed to produce evidence establishing a contract that prohibits the conduct Plaintiffs allege. The County also argues Plaintiffs have failed to provide any evidence of material breach or damages. Plaintiffs counter that the County breached “the contract” between it and Plaintiffs by “violat[ing] its own policies through the scheme of comp time, rollover and manipulations of the hours” and “tak[ing] the employee's vacation pay and convert[ing] it into the County's treasury.” (Dkt. 103-1 at 16- 17.)

         At the outset, the parties dispute what evidence the Court should consider in deciding the summary judgment motions. The County objects to consideration of three exhibits Plaintiffs attached to their cross-motion and opposition to the County's summary judgment motion, specifically Exhibits C, D, and E. (Dkts. 103-4; 103-5; 103-6; 104 at 25-36, 38). These documents allegedly include leave accrual and pay records for three putative class members - Stephanie Barnes, William Sanders, and Margaret Ware. (Id.) Apparently, these are the only three plaintiffs who provided actual records of how they accrued hours, pay, or leave under the County's policies. (Dkt. 115 at 4 n.3.) The County claims Plaintiffs submitted these documents as exhibits to their cross-motion and opposition to the County's summary judgment motion without having produced them in discovery. (Id. at 4.)

         The County says Plaintiffs violated Rules 26 and 37 of the Federal Rules of Civil Procedure. Rule 26(a)(1)(A)(ii) provides

Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties: a copy - or a description by category and location - of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment . . . .

         Parties also must supplement their Rule 26 disclosures at appropriate intervals. See Fed. R. Civ. P. 26(e)(1). Parties who fail to satisfy these disclosure and supplementation requirements are prohibited, under Rule 37(c)(1), from using the undisclosed evidence “at trial, at a hearing, or on a motion, ” unless the failure is harmless. Fed.R.Civ.P. 37(c)(1); see also Cooley v. Great S. Wood Preserving, 138 Fed.Appx. 149, 161 (11th Cir. 2005). The “burden rests upon the non-producing party to demonstrate that its actions were substantially justified or harmless.” United States v. Batchelor-Robjohns, No. 03-20164-CIV, 2005 WL 1761429, at *2 (S.D. Fla. June 3, 2005); see also Mitchell v. Ford Motor Co., 318 Fed.Appx. 821, 824 (11th Cir. 2009).

         During discovery, the County asked Plaintiffs to produce all the documents that putative representative Plaintiff, Adriana Christopher, [1] may offer as an exhibit at trial or in support of or opposition to any dispositive motion. (Dkt. 99-17 at 15.) At the time, Plaintiffs assured the County they had already produced any such documents. (Id.) The County asserts, however, that Plaintiffs did not produce “any time records, pay records, leave requests, or documents evincing accrual or usage of vacation time, sick time, or compensatory time, on behalf of any Plaintiff or putative Plaintiff during the discovery period.” (Dkt. 115 at 4.) The County also argues Plaintiffs should have produced such documents in their Rule 26 disclosures. See Fed. R. Civ. P. 26(a)(1)(A)(ii). Finally, the County claims that it was unfair for Plaintiffs to produce records for these three current or former employees after the close of discovery in response to summary judgment briefing. The County is correct.

         Plaintiffs neither listed these documents as support for their damage computations in their initial disclosures under Rule 26(a) nor tried to supplement their disclosures with this information under Rule 26(e). (See Dkt. 46 at 4, 10.) Plaintiffs also produce no time, pay, or leave records or documents showing the vacation, sick, or compensatory time any Plaintiff accrued or used. The County thus had no opportunity to depose Ms. Barnes, Mr. Sanders, Ms. Ware. It also had no time during discovery to analyze their records or conduct additional discovery. Plaintiffs have failed to explain their failure to disclose timely this information and cannot cure their error.[2] The documents about Mr. Sanders and Ms. Ware are dated 2015 or 2016 - showing they were available during discovery. Under these circumstances, Plaintiffs' failure to disclose or produce this evidence was neither harmless nor substantially justified.

         The Court thus sustains the County's objections to Exhibits C, D, and E to the Plaintiffs' cross-motion and opposition to the County's summary judgment motion. (Dkts. 103-4; 103-5; 103-6; 104 at 25-36, 38.) The Court will not consider this evidence when evaluating the parties' motions for summary judgment. See Cooley, 138 Fed.Appx. at 161 (11th Cir. 2005) (per curiam) (striking undisclosed affidavits was not an abuse of discretion); see also Johnson v. Gwinnett Cty. Sch. Dist., No. 1:11-cv-471, 2012 WL 5987584, at *2 (N.D.Ga. Oct. 17, 2012) (sustaining objections to affidavit and documents not produced during discovery), adopted by, No. 1:11-cv-471, 2012 WL 5987581 (N.D.Ga. Nov. 28, 2012).

         1. Contract

         To prevail on their breach of contract claim, Plaintiffs must show that a contract exists between themselves and the County and establish that contract's terms. See Sherman, 744 S.E.2d at 411. An employer's policies in place when it hires an employee can create a contract over the employee benefits provided in the policy. See Popovich v. Bekaert Corp., 474 S.E.2d 286, 288 (Ga.Ct.App. 1996); Fulton-DeKalb Hosp. Auth. v. Metzger, 417 S.E.2d 163, 164 (Ga.Ct.App. 1992); Superior Ins. Co. v. Browne, 395 S.E.2d 611, 612 (Ga.Ct.App. 1990).

         Plaintiffs' second amended complaint identified written County policies that they claim set forth the terms of their employment, including their rights and benefits. (Dkt. 35-1 at ¶ 18.) Plaintiffs specifically identify County policies PR-1200-2 and PR-1200-10(1), as the County's policies on compensatory time, vacation leave, sick leave, employee separation, and holiday pay. (Id. at ¶¶ 20-27.) In opposing summary judgment, Plaintiffs identified a larger group of written policies governing holiday pay, vacation leave, sick leave, compensatory time, and employee separation: PR-300-12; PR-1200-2; PR-1200-3; PR-1200-10; and PR-1200-13. They claim the County breached these policies. The County does not disagree that these policies applied to Plaintiffs.

         Plaintiffs also allege in the second amended complaint that the County uses “unwritten personnel policies and practices to deprive employees of compensatory time, vacation benefits, overtime pay, holiday pay and sick time earned.” (Id. at ¶ 28.) At summary judgment, Plaintiffs produced no evidence of these allegedly unwritten policies and, in fact, did not even discuss any specific policy in their pleadings. The Court thus limits its consideration to the written policies the parties agree are relevant to this dispute.

         2. Breach

         “A breach occurs if a contracting party repudiates or renounces liability under the contract; fails to perform the engagement as specified in the contract; or does some act that renders performance impossible.”, Inc. v. Paragon Techs., Inc., 740 S.E.2d 887, 893 (Ga.Ct.App. 2013) (citations and punctuation omitted). “When a court construes contractual terms to determine if a breach has occurred, the cardinal rule of contract construction is to ascertain the intention of the parties.” Id. (quoting Bd. of Comm'rs of Crisp Cty. v. City Comm'rs of Cordele, 727 S.E.2d 524, 527 (Ga.Ct.App. 2012)). If the language of a contract is plain and unambiguous, no construction is required and courts must give the terms of the contract an interpretation of ordinary significance. See Calabro v. State Med. Educ. Bd., 640 S.E.2d 581, 583 (Ga.Ct.App. 2006). “[I]f the contract is ambiguous . . . courts must apply the rules of contract construction to resolve the ambiguity.” Old Republic Nat. Ins. Co. v. Panella, 734 S.E.2d 523, 526 (Ga.Ct.App. 2012) (quoting Holmes v. Clear Channel Outdoor, Inc., 644 S.E.2d 311, 313 (Ga.Ct.App. 2007)).

         Plaintiffs argue that the County has breached its policies governing holiday pay, vacation leave, sick leave, and compensatory time. Upon examination, however, Plaintiffs either misunderstand or are dissatisfied with the County's policies. Plaintiffs even admit that the County has not violated any of its policies, procedures, or SOPs. (Dkts. 98-6 at ¶ 79 (citing 99-79 at 90:7-91:5 (providing no examples of times when Sheriff's office violated its written policies)); 108 at ¶ 79 (admitting the County's statement of fact that “Plaintiffs admit the County has not violated any policies, procedures or SOPs.”).)

         a) ...

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