Judge denies Morgantown’s motion to dismiss firefighter pay case

CLARKSBURG – A federal judge has denied the City of Morgantown’s motion to dismiss a compensation case filed by nearly 60 city current and former firefighters.

U.S. District Judge Thomas Kleeh filed his memorandum opinion and order September 16. He also said the parties may move for summary judgment after the completion of discovery.

Last year, the 56 firefighters sued the city in both state and federal court alleging the city incorrectly calculates their regular rate of pay and overtime compensation by using an improper method for calculating a firefighter’s base rate of pay from a stated annual salary. Specifically, the firefighters say the city deflated their hourly rate by using a number for annual hours that is higher than the hours actually worked to calculate the hourly rate. That, the firefighters say, deflated their overtime compensation.

In his ruling, Kleeh declined to consider the city’s motion as a motion for summary judgment because it was filed as a motion to dismiss.

“Plaintiffs have not yet been granted a reasonable opportunity to conduct discovery in this case,” Kleeh wrote. “Based upon the procedural posture of the case and the plaintiffs’ averments in their response briefing, a summary judgment assessment is premature.”

Kleeh also says the plaintiffs have sufficiently stated plausible violations under the Fair Labor Standards Act to survive dismissal.

According to the complaint, the firefighters are scheduled to work about 2,912 hours per year. Based on city policy, firefighters are nonexempt employees who should be paid overtime at a rate of 1.5 times. But the complaint says the city “has incorrectly calculated the plaintiffs’ regular rate of pay,” which also makes their overtime pay rate incorrect.

“The Morgantown firefighters through their IAFF Local 313 will not back down until the city follows the law on their wages and compensation,” attorney Teresa Toriseva previously told The West Virginia Record. “Because firefighters cannot strike or collectively bargain, they have only one remedy when they are cheated in pay – to go to court.”

Toriseva, whose Wheeling firm has represented firefighters and police officers across the state numerous times in recent years regarding pay issues, said the miscalculations have cost each Morgantown firefighter thousands of dollars in wages per year.

“There is no stated policy or mathematical calculation for how the city calculates a firefighter’s regular rate of hourly pay from the stated annual salary,” the complaint states. “The City’s Handbook contains no such policy or mathematical calculation.”

According to the complaint, the city calculates firefighters’ base pay rate on the average of 56 hours per week or 2,912 hours per year. From that, the city deducts the 40 hours each week – or 2,080 per year – as regular pay. That leaves 832 hours per year for scheduled overtime hours.

Then, the city reduces 240 hours of paid time off from that amount, leaving 592 hours. It then multiplies that 592 hours by 1.5, which equals 888 hours. The city then adds the 2,080 regular pay hours to the 240 PTO hours and the 888 hours for overtime pay to get 3,208 hours. It then divides the employee’s annual salary by 3,208 hours to arrive at the regular hourly pay rate.

But during testimony in another action last year, Assistant City Manager Emily Muzzarelli said the hourly pay rate was based on 3,328 hours, meaning the firefighters’ regularly hour rate would be lower than it should be, according to the complaint.

“Furthermore, the plaintiffs have not and do not agree to the city’s calculation of the plaintiffs’ regular rate of pay,” the complaint states. “The city’s miscalculation of a firefighter’s regular rate of pay has resulted in the plaintiffs being underpaid.

“The city’s miscalculation of a fire fighter’s regular rate of pay has resulted in the plaintiffs not being paid overtime compensation correctly.”

In the state court case, the firefighters accuse the city of violating the state Minimum Wage and Maximum Hours Standards and the state Wage Payment and Collection Act for failure to properly calculate their regular rate of pay and for failure to promptly pay wages when due. They also accuse the city of breach of employment agreement. In the federal case, they accuse the city of violating the Fair Labor Standards Act.

The state case still is pending in Monongalia Circuit Court. It was remanded back to state court, and the city filed a renewed motion to dismiss. That case is before Circuit Judge Cindy Scott.

The firefighters seek judgment, injunctive relief, declaratory relief, compensatory damages, statutory interest, liquidated damages, court costs, attorney fees and other relief.

In addition to Campbell, the complete list of firefighter plaintiffs includes Mitchell Beall, Brandon Bailey, Michael Benson, Hunter Bishop, John Borzik, Joseph R. Bragg, George Calvert, Matthew Chisler, Michael Close, Klint Connery, Tanner Dalton, Thadius Dalton, Douglas A. Daniels Jr., Bryan Davis, Christopher DeBerry, Gary Freshour, Jason Ganoe, Aaron Giles, Larry Hagedorn, Jason Hatfield, Dan Horbachewski, Brian Izzo, Ashley Jenkins, Chad Laskody, William Lyons, Anthony Martin, Bailey McClain, Brent Mergenthaler, John Moore, Joshua Morgan, Nicholas L. Morris, Jayson Nicewarner, Eric Nickelson, Joshua Nypaver, Roman Olszewski, Marco Pantalo, Brett Paugh, Matt Peery, Trevor Pickenpaugh, Derek Porter, David Ross, Douglas Sharpe, Travis Smith, Anthony Stake, Mark Thalman, Travis Thomas, Lucas Turner, Coby Ware, Keith Watson, Andrew Waxman, Sean R. Whiten, Robert Wolfe, Nicholas Wright, Devon J. Zaroda and Robert Zimmerman.

The firefighters are being represented by Toriseva and Joshua D. Miller of Toriseva Law.

U.S. District Court for the Northern District of West Virginia case number 1:24-cv-66