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March 9, 1992

ERIC A. BEALE, et al., Plaintiffs,


The opinion of the court was delivered by: GEORGE H. REVERCOMB


The parties in this case are currently before the Court on cross motions for summary judgment. This case is an addendum to the actions determined previously by this district court in D'Camera v. District of Columbia, 693 F. Supp. 1208 (D.D.C. 1988) (D'Camera I), D'Camera v. District of Columbia, 722 F. Supp. 799 (D.D.C. 1989) (D'Camera II), and Wyland v. District of Columbia, 728 F. Supp. 35 (D.D.C. 1990) (Wyland). Based on the holdings in those cases and for the reasons set forth below, plaintiffs' motion for summary judgment is denied, and defendant's motion for summary judgment is granted.

 In D'Camera I, Judge John H. Pratt held that the District of Columbia violated 29 U.S.C. 207(o), a provision of the Fair Labor Standards Act (FLSA), when it paid Metropolitan Police officers ranked sergeant and below in compensatory time, rather than in money, for overtime worked between April 15, 1986, and October 1, 1987, in the absence an express agreement between the parties allowing for such a substitution. The two dates are the period from when the FLSA first applied to the District to when the parties adopted a collective bargaining agreement expressly authorizing so-called "comp" time payments for overtime worked. Section 207(o)(3)(A) allows comp-time payments to police officers for overtime up to a limit of 480 hours; overtime worked in excess of 480 hours must be paid in money under the statute. Judge Pratt's holding in D'Camera I rejected the District's argument that plaintiffs at the rank of sergeant were exempt from the FLSA's overtime provisions as "administrative employees" under 29 U.S.C. 213(a)(1).

 In D'Camera II, Judge Pratt decided the precise amount of damages to which the D'Camera I plaintiffs were entitled. Of first importance here, Judge Pratt noted that, subsequent to his decision in D'Camera I, the District had distributed back pay to the plaintiffs in amounts equal to time-and-a-half pay for each hour of overtime the plaintiffs worked during the 18-1/2 month violation period, minus two-thirds of this amount for each hour of comp time the plaintiffs used during the violation period. *fn1" Judge Pratt found that this method of computing the back pay awards was fair and permissible under the FLSA. Judge Pratt next noted that under FLSA, an additional award of liquidated damages, in an amount equal to the back pay owed, was mandatory unless the District could show that, in paying comp time during the violation period, it had both acted in good faith and had reasonable grounds for believing it was not violating the FLSA. Judge Pratt held that the District had failed to make such a showing and, accordingly, that the District was liable to all plaintiffs, including sergeants, for liquidated damages in the amount of back pay.

 In Wyland, a second group of police officers ranked sergeant and below brought suit based on the same violations adjudicated in the D'Camera suits. Based on the D'Camera holdings, the District conceded liability and damages and argued only that its FLSA violations were not wilful as to the Wyland plaintiffs who were ranked as sergeants. This was significant because a wilful violation of the FLSA extends the applicable statute of limitations under 29 U.S.C. 255 from two years to three years. The Wyland suit was not commenced until July 26, 1988, and application of a two-year rather than three-year limitation to the sergeants would bar their recovery for about one-sixth of the violation period. Judge Pratt found no evidence that the District actually knew the sergeants were not exempt from the FLSA's overtime provisions, and he accordingly limited those plaintiffs to recovery for a period of two years dating back from the date of their complaint, while allowing those plaintiffs ranked below sergeant to recover for a period of three years prior to their complaint.

 Plaintiffs in the case at bar filed their complaint on February 7, 1991. By their own description, plaintiffs are the "remaining" officers and sergeants who did not "opt-in" to the D'Camera and Wyland lawsuits. *fn2" Plaintiffs admit that they "never received monetary compensation for their accrued pre-October 1, 1987, FLSA comp time solely because they neglected to file opt-in forms in the D'Camera and Wyland cases." Plaintiffs' Memo in Support of Summary Judgment at 11. Furthermore, as to this pre-October 1, 1987, compensation, plaintiffs acknowledge that, under the normal operation of 29 U.S.C. 255 as construed in Judge Pratt's decisions, recovery by both officers and sergeants would be barred by the three-year and two-year statute of limitations, respectively. Plaintiffs' Opposition to Cross-Motion for Summary Judgment at 2. Plaintiffs nonetheless ask this Court to award back pay and liquidated damages for overtime they worked during the violation period. Plaintiffs also ask for FLSA overtime accrued in excess of 480 hours since October 1, 1987, which they claim the District also has not paid. Complaint para. 34. The District argues that the pre-October 1, 1987, claim is time-barred. Defendant's Memo in Support of Summary Judgment at 7-8. It further argues that it has paid or is endeavoring to pay the post-October 1, 1987, overtime pay owed, that its delay in doing so have been caused by unavoidable administrative obstacles, and that its good-faith efforts preclude FLSA liability and imposition of liquidated damages. Id. at 12-16.

 Pre-October 1, 1987, Claims

 Plaintiffs' basis for their pre-October 1, 1987, claims is not immediately apparent from their pleadings. Plaintiffs initially contend that the reason they, unlike the D'Camera and Wyland plaintiffs, took no legal action against the District until February 1991 is because the police department, and specifically Police Chief Isaac Fulwood, had made representations until December 1990 that the department would pay all of its officers and sergeants for the pre-October 1, 1987, comp time accrued, whether or not the officers and sergeants were D'Camera or Wyland plaintiffs. Plaintiffs' Memo at 3, 5; Plaintiffs' Statement of Material Facts Not in Dispute. In support of this contention, plaintiffs provide the affidavits of three officers of the Labor Committee of the Fraternal Order of Police, all of whom attribute such representations to Chief Fulwood; Chief Fulwood replies in his own affidavit that he does not recall making such representations. Plaintiffs' might also point to the fact that, on December 2, 1990, the District's central payroll office issued settlement checks to officers who were not D'Camera or Wyland plaintiffs, and that in a December 13, 1990, communication to "The Force," Chief Fulwood stated

 I do not have authority to compensate other [department] members who are not plaintiffs. . . . The additional checks for non-plaintiffs were printed by central payroll in error. We have been directed to return them for cancellation . . . .

 Plaintiffs' Memo, Exhibit D.

 Despite plaintiffs' assertion of false representations attributable to the defendant, however, plaintiff's do not ask this Court to allow for an equitable tolling of the statute of limitations until December 13, 1990, at which time they allege that Chief Fulwood, by the above communication, "informed all members of the [police department] for the first time that [it] would not pay" employees who were not D'Camera or Wyland plaintiffs. Rather, plaintiffs allege that

 from February 25, 1989 and up to the present, the District has deleted from the Beale plaintiffs' payroll records [i.e., time and attendance sheet] their pre-October 1, 1987 FLSA overtime balance, thus depriving them of the use of their accrued FLSA overtime. The District admits that from February 25, 1989 up to the present that it has never paid for, restored, or made available for use to the Beale plaintiffs the FLSA overtime balance earned prior to October 1, 1987.

 Plaintiffs' Memo at 5-6. Plaintiffs offer no authority for their conclusion that "such actions violate the FLSA." Id. In later pleadings, plaintiffs make clear their theory that

 to the extent . . . the employees may have let one cause of action lapse by failing to join in the D'Camera and Wyland suits, the District gave them a new cause of action when it again violated the FLSA by taking away ...

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