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Daniel O‟Hara, An Individual On Behalf, of Himself and v. City of Pittsburgh

September 9, 2011

DANIEL O‟HARA, AN INDIVIDUAL ON BEHALF, OF HIMSELF AND OTHER INDIVIDUALS SIMILARLY SITUATED, PLAINTIFFS,
v.
CITY OF PITTSBURGH, DEFENDANT.



The opinion of the court was delivered by: Ambrose, Senior District Judge

FINDINGS OF FACT CONCLUSIONS OF LAW AND ORDER OF COURT SYNOPSIS

This is a case brought pursuant to the Fair Labor Standards Act, 29 U.S.C. §201, et seq. ("FLSA") seeking liquidated damages for overtime pay pursuant to 29 U.S.C. §216(b). The sole issue is whether Defendant is entitled to the FLSA‟s safe harbor from liquidated damages pursuant to 29 U.S.C. §260. A non-jury trial was commenced on May 12, 2011, and concluded on May 13, 2011. At the conclusion of the trial, I directed the parties to submit proposed Findings of Fact and Conclusions of Law. The parties have done so. (ECF Nos. 37, 40, and 41-1). Having now fully considered the testimony of all witnesses and evidence admitted at trial, as well as the submissions of the parties, I make the following Findings of Fact and Conclusions of Law pursuant to Rule 52 of the Federal Rules of Civil Procedure.

FINDINGS OF FACT

1. Based on the Third Circuit case of Wheeler v. Hampton Twp., 399 F.3d 238 (3d Cir. 2005), the parties concluded that the overtime rate for City of Pittsburgh Police Officers should be augmented by including a shift differential and longevity pay.

2. On January 13, 2006, Defendant signed a Letter of Understanding (Revised) that recognized longevity pay and shift differential pay at a basic median rate of 3% to be paid to the City of Pittsburgh Police Officers for overtime worked from January 13, 2006, forward.

3. The President for the FOP, Michael R. Haves, Jr., with the approval of membership, signed the Letter of Understanding in March of 2006.

4. The Letter of Understanding was signed by Mr. Havens, Bryan Campbell, Esq (counsel for the officers), Susan E. Malie, Esq. (City Solicitor), and Hugh McGough, Esq. (Assistant City Solicitor).

5. The Letter of Understanding was entered into to comply with the FLSA.

6. Donna DuBois was the Defendant‟s employee working on the implementation of the Letter of Understanding.

7. Ceridian was the outside payroll administrator for Defendant.

8. In February, 2006, at the direction of Ms. DuBois, Ceridian completed the steps necessary to implement the longevity into overtime pay.

9. In March, 2006, Ceridian started to work on applying the 3% shift differential.

10. In April of 2006, Ms. DuBois was terminated without notice.

11. Ms. DuBois did not have an opportunity to discuss any of her pending projects with any other staff member, including the Letter of Understanding, nor did Defendant attempt to contact her subsequently regarding the Letter of Understanding.

12. Defendant did not specifically assign the implementation of the Letter of Understanding to any other employee.

13. Two months after her termination, an employee of Defendant went through Ms. DuBois‟ desk but did not give the Letter of Understanding to Anna DeSarro, the employee who took over for Ms. DuBois.

14. Ms. DeSarro was informed by Chuck Tanczuk, an employee who had been assisting Ms. DuBois that the shift differential was still outstanding.

15. Ms. DeSarro did not know about the Letter of Understanding, so she had Ceridian program the shift differential at a previous rate schedule rather than the 3% ...


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