United States District Court, N.D. Georgia, Atlanta Division
OPINION & ORDER
MICHAEL L. BROWN UNITED STATES DISTRICT JUDGE.
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.
Factual and Procedural Background
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.)
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.)
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.)
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.)
Cross Motions for Summary Judgment
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).
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.
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.
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)).
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).
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.)
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.)
County says Plaintiffs violated Rules 26 and 37 of the
Federal Rules of Civil Procedure. Rule 26(a)(1)(A)(ii)
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 . .
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).
discovery, the County asked Plaintiffs to produce all the
documents that putative representative Plaintiff, Adriana
Christopher,  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.
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. 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.
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).
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
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
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
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.” UWork.com, 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.
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