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Posted August 17, 2012 | comments Leave a comment

Deputies' attorney seeks more time to prepare

By Alex Bridges -- abridges@nvdaily.com

Attorneys representing current and former Frederick County sheriff's deputies believe it's too soon to drop the county from a civil claim over pay.

More than 60 current and former officers with the Frederick County Sheriff's Office claim in a lawsuit filed in U.S. District Court in Harrisonburg that the government failed to compensate them for accrued overtime under state and federal guidelines.

The county has argued in court documents that the local government does not hire or fire the sheriff's office deputies and therefore is not at fault if the employees did not receive proper compensation.

The county, represented by Jim H. Guynn Jr., seeks to dismiss the local government as a defendant in the case in a motion for summary judgment. However, Daniel J. Hebda, an attorney for the plaintiffs, states in a filing made available Thursday the court should deny, or at least postpone the judgment request because the plaintiffs "are unable to present facts essential to defend against Defendants' claims because discovery has not even been begun in this case."

Hebda notes the court entered a discovery order for June 20 and a Jan. 25 deadline for that part of the process. Neither plaintiffs nor defendants have exchanged written requests for discovery or deposed any witnesses, according to Hebda. Also, both parties have since agreed to delay initial disclosures until Aug. 22, Hebda adds.

"The discovery process that has yet to get underway will allow Plaintiffs to present facts essential to showing whether Defendants have an employment relationship with Plaintiffs," Hebda's filing states. "Such a question is fact-intensive and of necessity turns on the economic realities of the relationship between Plaintiff and Defendants County and Riley."

Plaintiffs still dispute the defendants' assertion that the county does not employ deputies.

"Plaintiffs have alleged that Defendants Frederick County and [County Administrator] John Riley [Jr.] are in an employment relationship to Plaintiffs due to their level of involvement and control in the employment of Plaintiffs, including budgeting and funding," the plaintiffs' motion states. "Since this issue is factual and not a matter of law, and since discovery has not been completed, Defendants Frederick County and John Riley have prematurely asked for summary judgment and their motion should be denied."

Hebda argues the court may grant a motion for summary judgment only when the moving party has shown no genuine dispute as to any material fact exists and that they are entitled to judgment as a matter of law.

The plaintiffs argue that the county has asked the court to apply the test for an employment relationship on an affidavit of one person -- Paula Nofsinger, who heads up the Human Resources Department -- who neither side has deposed nor identified as a witness. As the plaintiffs argue, the test "requires a record that includes evidence sufficient to allow the court to examine the full scope of the relationship and its actual operation, not merely a description of its operations as stated by a single official in an affidavit."

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