Settlement
BUS DRIVERS' FLSA (OVERTIME PAY) SETTLEMENT PAGE
FINAL FLSA SETTLEMENT DOCUMENTS
Plaintiffs' Amended Unopposed Motion to Approve Settlement and Distribution of Settlement Proceeds
The motion asking the Court to approve the settlement and distribution of proceeds was filed on February 2, 2005. The Amended Motion was filed on March 13 (effective filing date, March 11). The Court has set a hearing for March 16 at 10:00 a.m. in the old U.S. Courthouse at 421 Gold S.E. Written objections to the settlement and distribution may be filed with the Court no later than March 1, 2005, and those objections will be heard at the time of hearing on March 16.
Exhibit A - Payout Chart Listing Names and AmountsAfter each driver's name, the first column shows the City's gross payout amount, the second column is the amount calculated as an additional payment (at the rate of 58%), the third column shows the payment to reach the $300.00 minimum per driver, and the last column, on the right, shows the total to be received by each driver. The City's payout amount (first column) will be reduced by tax withholding and deductions.
Plaintiffs' Response to Objections by Ron Otero and Michael Paul Froonjian
FLSA OVERTIME PAY CASES SETTLED
Settlement discussions between the City's attorneys and an employee negotiating committee have resulted in a settlement agreement amounting to $450,000.00 for drivers' back pay, damages and interest. One lawsuit, involving more than 150 drivers was filed in 1996; the other, including about 75 City bus drivers, was filed in 1999. A 1998 appeal to the 10th Circuit Court of Appeals in Denver, UTU, Local 1745, et al., v. City of Albuquerque, et al., 178 F.3d 1109 (10th Cir. 1999), resulted in a partial decision for the bus drivers, who were awarded pay for mid-day travel between the garage and relief points around the City. Despite the 1999 decision of the Court of Appeals upholding the U.S. District Judge's ruling, the employees' could not reach agreement with the City over the amount of back wages they were owed.
A "Special Master," former-Judge Rebecca Sitterly was appointed by the Court to calculate the amounts owed to the drivers, and her "calculations," somewhat amending the numbers set out by Don Marquez for the Transit Department, were used as the basis for the City's conclusion that it owed no more than $286,000 in back wages. As month after month went by without any resolution, U.S. District Judge Hansen prepared his final decision, and the drivers became increasingly anxious to end the seemingly endless litigation.
Most recently, although the drivers had filed a second appeal to the Court of Appeals, that appeal was withdrawn "without prejudice" (meaning it could be re-filed following the conclusion of the case if settlement talks were unsuccessful). The appeal was withdrawn with the understanding that the City and the drivers would engage in serious settlement negotiations to try to resolve the issues. By that time both sides seemed ready to find a compromise and end the cases. Any further dispute with the Special Master and District Judge's numbers would have meant re-filing the appeal and additional months, or possibly years, of delay.
The settlement negotiations took place on October 12 and 13, 2004, at the Alvarado Transit Center. The City and the bus drivers jointly agreed to employ former-Chief Justice of the New Mexico Supreme Court, Eugene Franchini, to be the Settlement Facilitator. The Negotiating Committee for the drivers included Robert Gutierrez, John Bazan, John Barnes, Mike Toya, Dave Lovato, Dale Padilla, Ismael Montanez, and Victor Vega. Attorneys Paul Livingston and Justin Pennington represented the drivers. The City was represented by Chicago attorney Ed Bergmann, Assistant City Attorney Michael Garcia, and former Assistant City Attorney and present Director of Risk Management, Charles Kolberg.
At the end of two days of vigorous negotiations, the City agreed to pay the drivers a total of approximately $250,000.00 in back wages for split shifts under an hour and mid-day travel time, as well as the difference between that and the agreed upon $450,000.00 (approximately $200,000), which will be distributed equitably by the Drivers' Negotiating Committee. Attorney's fees in the amount of $25,000.00 (representing a compromise of the 15% agreed upon at the start of the case) will come out of the settlement amount and the attorneys will additionally be entitled to apply to the Court for their fees and other costs of the lawsuit to be paid by the City.
The settlement covered overdue overtime wages between 1994 (two years before the case was filed) and 1999, when the City included travel time and split shift time in the regular work-runs. Because the City insisted it had corrected its overtime pay deficit in 1999, according to the City's calculations many of the drivers in the second lawsuit, filed in 1999, are entitled to no overtime wages. The Motion to Approve the Settlement and Distribution of Proceeds was filed on February 2, 2005. The Drivers' Negotiating Committee decided to award a minimum of $300.00 to each driver who filed a consent form remaining in the case, that is, each driver who did not "settle" earlier, and a 58.5% supplement to the City's payout figure to each driver receiving more than the $300 minimum payment.
Case Summary:
In 1996 a group of 155 bus drivers signed on as Plaintiffs in a collective (class action) overtime pay claim under the FLSA. In September 1997, the U.S. district judge, LeRoy Hansen, issued a partial summary judgment, partly in the bus drivers' favor, partly in the City's favor. In 1999, while the first case was being appealed to the 10th Circuit Court in Denver, a second group of bus drivers filed a similar lawsuit. After the first appeal to the 10th Circuit Court of Appeals in Denver, the case went back to the Albuquerque district court for calculation of overtime wages. The City relied on numbers put on spreadsheets by Transit Supervisor Don Marquez. The bus drivers objected that the numbers were too low and didn't include all the time they were entitled to. Even the hiring of a "Special Master" to help calculate the drivers' pay more than two years ago didn't help. The bus drivers' back overtime wages have still not been paid. One of the main issues that continues to be in dispute is the amount of pay Extra Board drivers are entitled to. The City claims it resolved all the issues when it changed the bus routes so that travel would be only to downtown and it began including split shifts of less than an hour in the drivers' regular routes. However, the drivers continue to contest the time allotted to Extra Board work, charging that neither travel time or split shift time are adequately compensated for Extra Board drivers.
Almost two years ago, Albuquerque City Councilors closely questioned City Attorney Bob White about the bus drivers' overtime wage cases. The City Council wanted to know why the City's outside attorney, Ed Bergmann, and his law firm, Seyfarth, Shaw, had been paid a huge amount in attorneys' fees even though the bus drivers hadn't been paid what they were owed. White told the councilors that the City was "transitioning" the Chicago law firm out; he said he was "committed" to transferring the case to local counsel. Councilors asked White how much it would cost to get Chicago attorney Bergmann to "put the case in a box and send it back to Albuquerque." White said it wasn't as simple as that. Bergmann still represents the City, and the bus drivers still haven't been paid their overtime wages.
In the years the bus drivers' overtime wage claims have been pending, Paul Livingston, the bus drivers' attorney, has filed numerous motions and memorandum briefs trying to set the law and the facts straight. The two bus driver cases were consolidated by the Judge, who has ruled that the drivers in the second case are not allowed any litigation of their claims because of the Judge's rulings in the first case. Among the motions resulting from the disputed legal issues are motions to sever, disqualify the judge, and motions for sanctions. The briefs presented to the Court by Plaintiffs' counsel are, for the most part, available here. The Court has issued numerous "decisions" and "orders" and appointed a Special Master, Rebecca Sitterly.
Most recently, the bus drivers and the City have agreed to enter "good faith" attempts to settle the overtime wage claims. The parties have asked retired State Supreme Court Justice Eugene Franchini to assist as the settlement facilitator, and settlement talks are scheduled for October 12 and October 13, at the Alvarado Transportation Center.
Special Master's Reports
Special Master's Report on Regular Drivers' Travel Time (May 16, 2003)
Special Master's Report on Regular Drivers' Split Shift Time (May 16, 2003)
Special Master's Report on Extra Bd. Drivers' Split Shift Time (May 16, 2003)
Special Master's Report on Extra Bd. Drivers' Settlement (May 16, 2003)Bus Drivers' Objections to Special Master's Reports (July 18, 2003)
City's Submission of Additional Records (August 28, 2003)
District Judge's Rulings
Judge Hansen's Opinion on Regular Drivers' Travel Time (Sept. 30, 2003)
Judge Hansen's Opinion on Drivers' Split Shift Time (Sept. 30, 2003)
Judge Hansen's Opinion on Extra Bd. Drivers' Settlement (Sept. 30, 2003)