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McGrath v. City of Somerville

United States District Court, D. Massachusetts

September 30, 2019

MICHAEL MCGRATH, et al., Plaintiffs,
v.
CITY OF SOMERVILLE, Defendant.

          MEMORANDUM AND ORDER ON MOTIONS TO STRIKE

          F. Dennis Saylor IV United States District Judge.

         This is an action for violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., and the Massachusetts Wage Act, Mass. Gen. Laws ch. 149, §§ 148, 150. Plaintiff Michael McGrath and 82 other individually named plaintiffs are current and former police officers who are or were employed by defendant the City of Somerville, Massachusetts, between May 26, 2014, and May 26, 2017. The complaint alleges that McGrath and the other officers regularly worked more than 40 hours a week but were not paid overtime as required by law. Essentially, plaintiffs allege that they were underpaid because the City of Somerville miscounted their overtime hours.

         The parties have filed cross-motions for summary judgment. The City of Somerville has also filed two motions to strike portions of plaintiffs' statement of material facts. For the following reasons, the first motion will be granted in part and denied in part, and the second motion will be denied.

         A. The City's First Motion to Strike

         On February 15, 2019, when plaintiffs filed their motion for summary judgment, they submitted affidavits by Michael McGrath, James McNally, and Kevin Goulart. The City has moved to strike various portions of those affidavits on the grounds that (1) some of the statements are not based on the affiants' personal knowledge, (2) some are improper conclusory statements, and (3) some directly contradict the affiant's prior deposition testimony.

         1. Alleged Lack of Personal Knowledge

         The City seeks to strike several paragraphs from all three affidavits that it contends are not based on the affiants' personal knowledge: nine from the First McGrath Affidavit, four from the McNally Affidavit, and three from the Goulart Affidavit.

         a. McGrath Affidavit

         The City seeks to strike the following nine paragraphs of the McGrath Affidavit that describe paid details and the City's payroll processes for details:

Paragraph 15: DETAILS are worked on behalf of third party vendors (hereinafter “Private details”) as well as on behalf of the Cit1 y (hereinafter “City details”).
Paragraph 16: Private details are procured by a third party that contacts the City to request a detail officer for work being performed by the third party, i.e., work of a third party that is not being performed at the request of the City.
Paragraph 17: City details are procured by a City department such as the City's Department of Public Works (“DPW”), Office of Strategic Planning and Community Development (“OSPCD”), School Department, or Engineering, in conjunction with a need for a detail officer to be attending to an activity or security function at a City facility, work of City employees, or work being performed by a third party with whom the City contracted to perform work on behalf of the City. The City's police department detail clerks make entries in a computer program called “Extra Duty” to record the specifics for both Private details and City details.
Paragraph 23: For each paycheck in which DETAILS are paid to police officers, the police department detail clerk prepares a document referred to herein as an “Export.” The Export is emailed each week to all patrol officers and itemizes, by police officer, the specific details that the police officer worked that are being paid to each police officer in that week's pay check; the date when the detail was worked by the police officer that is being paid; and the amount being paid for the detail.
Paragraph 24: The weekly Export report for each workweek in the period May 2014 to present, establish which DETAILS are City details, to the extent that they list a City department or the City itself in the column next to each of the DETAILS being paid in that paycheck. In particular, for each police detail itemized on the Export as paid to a police officer in that week's paycheck, there is a listing of an entity. Where the Export lists the entity as a department of the City or the City itself-e.g., “City of Somerville, ” “DPW” (Department of Public Works), “School Department, ” or “OSPCD” (Office of Strategic Planning and Community Development)-those entries denote that the detail is a City detail.
Paragraph 25: The Export also lists third parties (i.e., entities that are not City departments) next to some details. Though the listing of a third party sometimes indicates that the corresponding detail is a Private detail, in some instances a third party is listed for a City detail. One example of this is the listing of “P.T. Kelley, ” a company with which the City contracts for water infrastructure work. P.T. Kelley is listed next to a detail regardless of whether the detail is a Private detail (i.e., when P.T. Kelley is working for a private party) or a City detail (i.e., when P.T. Kelley is working under contract with the City).
Paragraph 29: For some private parties with whom the City contracts to perform work on behalf of the City, the Export document prepared by the Police Department detail clerks shows that the detail is a City detail. One example of this is when the City contracts with Gioioso Construction to perform construction on behalf of the City; even if the Plaintiff on the detail slip lists the organization for whom the detail is performed as “Gioioso Construction, ” the Export reflects the detail as having been procured by the “City of Somerville DPW” or other City department.
Paragraph 30: The Export sheets for the period May 2014 to present, establish the date when each Plaintiff worked DETAILS, and the date when each Plaintiff was paid for having worked such DETAILS.
Paragraph 32: The account referred to in the CBA at Article VI, Section 11, “Paying Police Details, ” SMF at ¶31, is for purposes of the City depositing funds when a private vendor is delayed in paying a detail. The City pursuant to this provision is to advance the money to pay for the detail and then obtain reimbursement thereafter from the private vendor once that private vendor makes payment.

         The City contends that McGrath has not established any personal knowledge about the detail office's administrative processes. According to the City, McGrath does not claim he ever worked in the office or personally observed its processes, and the City's senior detail coordinator says McGrath never worked there, (E. Roche Decl. ¶ 11). In response, plaintiffs point to McGrath's statement that “[b]y my employment in various positions and as a union officer I have come to know the specific aspects of the City's Police Departments [sic] operations and ...


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