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Joseph Foley, Individually and On Behalf of Others Similarly v. City of Buffalo

July 26, 2011


The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court Buffalo, New York



Plaintiff, Joseph Foley, commenced this collective action on January 23, 2006, alleging violations of 29 U.S.C. §§ 201,et seq., the Fair Labor Standards Act ("Labor Act"). (Docket No. 1.)*fn1 Plaintiff also alleges violations of New York State Unconsolidated Law § 1015 and New York Retirement and Social Security Law § 323. (Docket No. 1.) Plaintiff seeks a judgment declaring Defendant's overtime pay practices unlawful, an injunction restraining those practices, and monetary damages. Presently before this Court are three motions: Plaintiff's Motion for Leave to File an Amended Complaint; Plaintiff's Motion for Leave to File a Late Notice of Claim; and Defendant's Motion to Dismiss. For the following reasons, Plaintiff's Motion to Amend the Complaint is granted and Defendant's Motion to Dismiss is granted. Pursuant to 28 U.S.C. § 1367(c)(3), this Court declines to exercise jurisdiction over Plaintiff's remaining state claims and his notice of claim motion.

As an initial matter, this Court will address Plaintiff's Motion to Amend the Complaint. (Docket No. 14.) Leave to amend is freely granted. See Fed. R. Civ. P. 15 (a)(2) ("The court should freely give leave when justice so requires.") Defendant argues that Plaintiff's proposed amended complaint is a futile re-pleading of insufficient facts and conclusions of law. Nonetheless, Defendant has addressed Plaintiff's proposed amended complaint and is therefore not prejudiced by this Court considering the amended pleading at this time. For the sake of allowing Plaintiff to fully and precisely express his claims, this Court will grant leave to amend and resolve the Motion to Dismiss as against the amended complaint. Consistent with the amended complaint, the Clerk of Court will be directed to change the caption to reflect the newly named plaintiffs.


A. Facts

Joseph Foley, President of the Buffalo Firefighters Association, brings this action on behalf of himself and other firefighters, alleging that the City of Buffalo violated and continues to violate the Labor Act's provisions regarding overtime pay. (Amended Complaint ("Am. Compl.") ¶ 31; Docket No. 16-2.)*fn2

Plaintiff and other firefighters work an 8-day schedule. (Am. Compl. ¶ 14.) It consists of two 9-hour day shifts, two 15-hour night shifts, and four days off. (Id.) It is undisputed that this results in workweeks where firefighters perform 48 hours of work. (Id. ¶¶ 15,17.) Over the course of the calendar year, if Plaintiff averages more than 40 hours of work per week, Defendant awards compensatory time equal to the amount of overtime worked. (Id. ¶ 18) This is in lieu of monetary compensation. (Id.) Plaintiff claims that this system violates 29 U.S.C. § 207(a)(1), which reads:

Except as otherwise provided in this section, no employer shall employ any of his employees . . . for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.*fn3

Plaintiff further claims that Defendant violates this law through policies that require firefighters to perform training exercises, be present for briefings, and submit doctor's notes outside of regularly scheduled shifts and without additional compensation.

However, Defendant asserts that it is exempt from this provision under section 207(k) of the same law, which is a specific exemption for emergency service providers. See 29 U.S.C. § 207(k).*fn4 This section allows firefighters to work up to 212 hours in a twenty-eight-day "work period" before becoming eligible for overtime pay. 29 C.F.R. § 553.201. The term work period is defined as any "established and regularly recurring period of work" between 7 and 28 days. 29 C.F.R. § 553.224. If a firefighter's work period is less than 28 days, the number of hours required to trigger overtime pay is prorated to the number of days in his or her work period. 29 C.F.R. § 553.230.*fn5 For example, Plaintiff and Defendant agree that Plaintiff works an 8-day schedule.*fn6 If section 207(k) applies, Defendant would not be required to pay the increased overtime rate until Plaintiff worked 61 hours in that 8-day period. Id.*fn7
Defendant also disputes that it owes Plaintiff overtime pay for time spent training, in briefings, or obtaining doctor's notes. The Labor Act's central themes are its minimum wage and overtime requirements. Therefore, Defendant asserts, the Labor Act is not implicated as long as Plaintiff's outside activities neither rise to the level that triggers overtime pay, nor create a situation where Plaintiff's pay for total hours worked falls below the minimum wage.*fn8 Defendant concedes that this is true only if the § 207(k) exemption applies.

Plaintiff claims that the exemption is merely an option, which Defendant must explicitly "elect" or "adopt"; Plaintiff submits that Defendant has not exercised this option. (Am. Compl. ¶ 26.)

B. Procedural History

On January 23, 2006, Plaintiff filed suit in this Court alleging violations of the Labor Act, New York State Unconsolidated Law § 1015, and New York Retirement and Social Security Law § 323. Defendant answered on February 16, 2006 and moved to dismiss the complaint on August 3, 2007. On September 18, 2007, Plaintiff filed his Cross-Motion to Amend the Complaint and for Leave to File a Late ...

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