Perez v. City of New Orleans
173 F. Supp. 3d 337
E.D. La.2016Background
- Chad Perez, on behalf of a conditionally certified class of NOPD officers, sued the City, Superintendent Serpas, and others under the FLSA and related claims alleging unpaid overtime and manipulation of the NOPD’s J&T timekeeping system; trial was set for April 11, 2016.
- Perez alleges (1) the scheduled 42.5-hour workweek and the J&T system improperly avoid FLSA overtime and (2) retaliation after he complained about unpaid overtime; he also pleaded § 1983, defamation, and IIED claims.
- Defendants moved to dismiss or for summary judgment and filed two motions in limine seeking to exclude untimely-disclosed exhibits and expert testimony (IPM Susan Hutson).
- Discovery dispute: Plaintiff produced documents late (including an IPM report) and did not provide an expert report for Ms. Hutson; Plaintiff’s second exhibit list included previously undisclosed items.
- Court ruled: excluded exhibits not on Perez’s timely first exhibit list and barred any undisclosed expert testimony (Hutson can testify as a fact witness); denied sanctions. Some claims were dismissed; others survived summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Exclusion of late-disclosed exhibits / expert testimony | Perez argued the documents were already known to Defendants or could be addressed at trial; Hutson may testify without a report | Defendants argued prejudice from untimely disclosure and lack of required expert report under Rule 26 and the scheduling order | Court excluded documents not on the timely exhibit list and barred undisclosed expert testimony; Hutson may testify only as a fact witness; declined to award fees/sanctions |
| Service on Robert Norton | Perez offered no proof of individual service | Defendants argued Norton was not properly served in his individual capacity under Rule 4 | Court dismissed all claims against Norton without prejudice for insufficient service |
| § 1983 claim (seeking to enforce FLSA rights) | Perez alleged Serpas and others established a policy causing FLSA deprivations | Defendants argued FLSA provides the exclusive remedy and § 1983 cannot be used to enforce FLSA rights | Court dismissed Perez’s § 1983 claim for failure to state a claim (FLSA is the exclusive remedy for overtime violations) |
| FLSA overtime challenge to J&T system | Perez claimed J&T and incomplete records resulted in unpaid unscheduled overtime; offered affidavits and representative class interrogatories | Defendants argued the 14-day work period and J&T scheme comply with § 207(k) and records show Perez was fully paid | Court held the J&T policy facially complies with § 207(k) — summary judgment for Defendants on the categorical J&T violation — but denied summary judgment on Perez’s claim that NOPD failed to accurately record unscheduled hours because factual disputes remain about record accuracy and unpaid hours |
| FLSA retaliation claim | Perez invoked protected activity (complaints about unpaid overtime) and relied on the Civil Service Commission’s finding of retaliatory motive | Defendants argued jurisdiction belongs to Civil Service Commission and, on the merits, the suspension had a legitimate non-retaliatory reason | Court retained jurisdiction (Civil Service cannot provide the damages sought) and denied summary judgment on retaliation because a genuine fact issue exists as to pretext; Commission’s decision supports Perez’s claim |
| Defamation and IIED | Perez alleged false, reputation-damaging statements and extreme, outrageous conduct causing severe distress | Defendants argued Perez failed to plead required elements and offered no opposing evidence | Court dismissed defamation and IIED claims (insufficient pleading and no opposing evidence/support) |
Key Cases Cited
- Barrett v. Atlantic Richfield Co., 95 F.3d 376 (5th Cir.) (district court’s broad discretion to enforce scheduling orders and impose pretrial sanctions)
- Ashcroft v. Iqbal, 556 U.S. 662 (plausibility standard for Rule 12(b)(6) motions)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (same; factual allegations must permit plausible inference of liability)
- Celotex Corp. v. Catrett, 477 U.S. 317 (summary judgment burden-shifting principles)
- Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (employee burden when employer records are inadequate; reasonable inference of unpaid hours)
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (burden-shifting framework for discrimination/retaliation claims)
- Brennan v. Gen. Motors Acceptance Corp., 482 F.2d 825 (5th Cir.) (representative evidence can establish pattern or practice in wage cases)
- Kanida v. Gulf Coast Medical Personnel LP, 363 F.3d 568 (5th Cir.) (McDonnell Douglas adapted to FLSA retaliation claims)