Adams v. City and County of Honolulu

          REPORT AND RECOMMENDATIONS OF SPECIAL MASTER PURSUANT TO FED. R. CIV. P. 53 AND L.R. 53.3.

          BARRY M. KURREN UNITED STATES MAGISTRATE JUDGE

         Pursuant to Fed.R.Civ.P. 53 and L.R. 53.3, the Special Master hereby submits the following report and recommendations to the Court:

         1. This a Fair Labor Standards Act (hereinafter “FLSA”) case in under 29 U.S.C. § 201, et seq. case, initiated by lead plaintiff Sonya Adams (hereafter the “Collective Representative”) on December 12, 2012, and, as of June 1, 2017, joined by 317 other named Plaintiffs employed by Defendant City and County of Honolulu (“Defendant”) as Emergency Medical Technicians (“EMTs”) and Paramedics (hereafter the EMTs and Paramedics are referred to collectively as “Plaintiffs”).

         2. The FLSA collective class is defined as all EMT's and Paramedics who worked for Defendant City and County of Honolulu, during the period from December 1, 2009, through the present (the “Claims Period”), who allege they were not paid overtime wages as required by the FLSA.

         3. At the status conference on December 8, 2015, the parties agreed upon and the Court approved a method to advance the case to resolution at trial or determination by motion, mediation or other settlement. The plan was to prepare and present 10 representative bell weather cases (the “Bell Weathers”) for the Court's consideration, from which damages for the rest of the collective members could be determined by extrapolation, based on weekly averages for the Bell Weathers, applied to each non-bell weather plaintiff (the “Non-Bell Weathers”) for each week they worked during the Claim Period. The Court approved this process and the parties then selected the Bell Weathers by agreement.

         4. At the status conference held January 21, 2016, the Court ordered Defendant to provide the time records and payroll record information for the Bell Weathers to Plaintiffs' counsel.

         5. Defendant agreed to produce time sheets from December 1, 2009, to the present or their electronic equivalent for the Bell Weathers. Similarly, Defendant agreed to produce payroll records, in the form of the C2HERPS records from February 26, 2010, to present, or their electronic equivalent. Records equivalent to the C2HERPS would be produced documenting regular time, shift premium, FLSA overtime and collective bargaining agreement overtime for December 1, 2009, through February 26, 2010. The time sheets and payroll records are referred to collectively as the “Payroll Data.” Production of Payroll Data for the Bell Weathers was completed in April 2017.

         6. Pursuant to Fed.R.Civ.P. 53, L.R. 53.3 and Fed.R.Evid. 706, on August 12, 2016, the parties agreed and the Court appointed David M. Breshears, CPA/CFF of the forensic accounting firm of Hemming Morse, as Special Master and Expert (hereafter the “Special Master”) to evaluate the Payroll Data and calculate: (1) the “regular rate of pay” pursuant to 29 U.S.C. § 207(e), for each of the Bell Weathers during the period from February 7, 2010 to October 1, 2016; (2) the amount of asserted FLSA overtime owed for each week for each of the Bell Weathers, if any; (3) the amount of asserted FLSA overtime paid for each week for each of the Bell Weathers, if any; (4) the amount of asserted FLSA overtime unpaid for each week for each of the Bell Weathers, if any; (5) the amount of asserted FLSA overtime paid late for each week for each of the Bell Weathers, if any; and (6) the amount of asserted overtime unpaid for each week for each of the Bell Weathers, if any (collectively the “Unpaid Overtime”). See Stipulation to Appointment of Special Master Pursuant to Fed.R.Civ.P. 53, L.R. 53.3 and Court Experts Pursuant to Fed.R.Evid. 706 [Filed 8/12/16] Doc. No. 78 (the “Appointment Order”).

         7. Pursuant to the Appointment Order, the parties are bound by the Special Master's report and recommendations regarding the Bell Weathers pursuant to Fed. R. Civ. Pro. 53(a)(1)(A). Id. ¶ 8.f.

         8. The Payroll Data were analyzed pursuant to the Appointment Order and, utilizing the data provided by Defendant:

a. Pursuant to 29 U.S.C. § 207(e), the “regular rate of pay” was calculated for each of the Bell Weathers during the period from February 7, 2010 to October 1, 2016;

b. The amount of FLSA overtime owed for each week for each of the Bell Weathers was calculated;

c. The amount of FLSA overtime paid for each week for each of the Bell Weathers was calculated;

d. The amount of FLSA overtime unpaid for each week for each of the Bell ...