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City of Roswell v. Bible

Court of Appeals of Georgia, Fifth Division

September 16, 2019

CITY OF ROSWELL
v.
BIBLE et al.

          MCFADDEN, C. J., MCMILLIAN, P. J., and SENIOR APPELLATE JUDGE PHIPPS

          MCMILLIAN, PRESIDING JUDGE

         In August 2017, David Bible and Brian Rogers (collectively "Appellees") filed suit against the City of Roswell (the "City"), seeking to represent a class of similarly situated firefighters on various claims arising from the City's classification of the putative class members as part-time rather than full-time employees, thereby depriving them of full-time benefits under the City's "Policy Manual." Following discovery limited to the issue of class certification, the trial court entered an order certifying the proposed class. On appeal, the City asserts that the trial court erred by (1) relying on the Appellees' unsupported allegations; (2) finding that class issues predominate; (3) finding that Appellees met their burden of proof as to numerosity; and (4) finding that Appellees satisfy the typicality requirement. For the reasons that follow, we find no error and affirm.

         The record shows that the City has a population of nearly 100, 000 and employed over 100 firefighters each year during the class period.[1] In 2000, the City converted from a system of employing mostly full-time firefighters - with some reliance on volunteer firefighters - to a system of employing a significant number of "part-time" firefighters who are not entitled to the same benefits as full-time City employees.[2] Bible worked at the Roswell Fire Department (the "Department") in various capacities, including as a firefighter, fire lieutenant, fire captain, and emergency medical technician, from 1992 until his retirement in March 2017. Rogers worked at the Department from 2007 to 2018 as a firefighter, a fire captain, and a paramedic.[3] All City employees, including the putative class members, are subject to the provisions of the City's Policy Manual.[4]

         City Ordinance 2.2.1 defines "regular" employees as those who work "full-time whether salary is hourly, weekly or some other pay rate," whereas part-time employees are those who "work at irregular intervals on a short-term basis." Section 3.8 of the Policy Manual further specifies that "[a]n employee whose standard workweek is forty hours or more is a regular full-time employee. An employee whose standard workweek is less than forty hours per week is a part-time employee." And finally, the Policy Manual provides that "[a] person appointed to a part-time position shall not be eligible for the privileges and benefits conferred through the [Policy Manual] to regular full-time City employees."[5]

         Appellees allege that for each year during the class period, they worked forty hours or more per standard workweek "virtually every week." And they both testified at their depositions that they believed throughout their employment with the City that they were considered part-time employees and were therefore not eligible for most of the benefits available to full-time employees. In 2016, Rogers asked the City's benefits manager about participating in the City's retirement plan, and she told Rogers that he should do some research about how part-time employees are treated in other jurisdictions. Approximately one year later, Appellees filed their complaint against the City, asserting claims for breach of contract, breach of duty of good faith and fair dealing, quantum meruit, declaratory judgment, and attorney fees.

         The trial court directed the parties to engage in discovery limited to the issue of class certification, and in June 2018, Appellees filed a motion to certify a class of similarly situated firefighters as follows:

All persons currently and/or formerly employed as firefighters by the Roswell Fire Department between August 29, 2011 and the date of the filing of the Complaint (inclusive), who worked forty (40) hours or more per standard workweek, but did not receive the benefits conferred upon regular full-time employees.

         The City opposed the motion and moved to strike Rogers' and Bible's declarations and to suppress a former plaintiff's deposition errata sheet. In its order granting class certification for the proposed class, the trial court found that the estimated 149 class members' claims arise out of a single contract -- the Policy Manual -- and were confined to a limited time period of August 29, 2011 to August 29, 2017. The trial court ultimately concluded that the Appellees had satisfied each of the class certification requirements under OCGA § 9-11-23 (a) and that class issues predominate over the issues of any individual class members. This appeal followed.

         1. In its first enumeration of error, the City simply asserts that the Appellees failed to meet their burden of proof in establishing class certification - without specifying which factor(s) the Appellees failed to establish - because the trial court improperly relied on the Appellees' unsworn allegations in their complaint and other assertions outside their personal knowledge for "key factual propositions," including the allegations about the City and the Department's benefits practices and the number of hours worked by Appellees and other class members.

         We begin by noting that "[i]n determining the propriety of a class action, the first issue to be resolved is not whether the plaintiffs have stated a cause of action or may ultimately prevail on the merits, but whether the requirements of OCGA § 9-11-23 (a) have been met." (Citation and punctuation omitted.) Endochoice Holdings, Inc. v. Raczewski, ___ Ga.App. ___, (830 S.E.2d 597) (2019). Trial courts are "vested with broad discretion to decide whether to certify a class, and absent an abuse of that discretion, we will not disturb the trial court's decision." (Citation and punctuation omitted.) Id. at ___ ("Implicit in this deferential standard of review is a recognition of the fact-intensive basis of the certification inquiry and of the trial court's inherent power to manage and control pending litigation."). And "we will affirm the trial court's factual findings unless they are clearly erroneous." (Citation and punctuation omitted.) Id. at ___.

         In order to certify a class, the trial court must find:

(1) [t]he class is so numerous that joinder of all members is ...

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