Lisa Hicks v. Avery Drei, LLC, et al
Filing
Filed opinion of the court by Judge Kanne. The judgment of the district court is AFFIRMED. Richard D. Cudahy, Circuit Judge, concurring in part and concurring in the judgment; Joel M. Flaum, Circuit Judge and Michael S. Kanne, Circuit Judge. [6330501-3] [6330501] [10-2744]
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In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2744
L ISA H ICKS,
Plaintiff-Appellant,
v.
A VERY D REI, LLC and C HANCE F ELLING,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:07-cv-01215-JMS-DML—Jane E. Magnus-Stinson, Judge.
A RGUED M AY 13, 2011—D ECIDED A UGUST 17, 2011
Before C UDAHY, F LAUM, and K ANNE, Circuit Judges.
K ANNE, Circuit Judge. Lisa Hicks worked for Chance
Felling and his hotel management company, Avery Drei,
LLC, as a security guard and then as a desk clerk during
the construction and operation of a new hotel in the
Indianapolis area. After being terminated from her job as
a desk clerk, Hicks sued Felling and Avery Drei (the
“Defendants”) seeking unpaid wages, overtime pay, and
accrued vacation pay. The district court granted the De-
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fendants’ motion for judgment as a matter of law on
Hicks’s vacation pay claim and a portion of their similar
motion on her overtime pay claim. The jury returned a
verdict in the Defendants’ favor on the remaining portion
of her overtime wages claim. Hicks appeals, challenging
both the district court’s denial of her pretrial motion to
prevent the Defendants’ introduction of belated evidence
of cash payments and its interpretations of the law in
granting the judgments as a matter of law. We affirm.
I. B ACKGROUND
Hicks began working for Felling as a security guard
at the site of a hotel construction project in July 2006.
She was an hourly employee, and Felling regularly paid
her in cash for her services. Once the hotel opened in
October 2006, Hicks transitioned to working as a front
desk clerk. Felling was the owner and manager of Avery
Drei, the company that operated the hotel, so he continued to serve as Hicks’s employer at her new job. As
a desk clerk, she received her hourly wages by check
instead of cash. The parties disagree, however, about
her overtime pay at that job. Hicks alleges she was
never paid for overtime work at either her hourly rate or
at an overtime rate. Felling alleges that he gave Hicks
cash payments for overtime earnings, even though he
neither requested nor authorized her to work overtime.
For reasons immaterial to this appeal, the Defendants
terminated Hicks’s employment in April 2007, after
less than a year of work with the hotel.
In September 2007, Hicks sued the Defendants in a
proposed class action to recover compensation allegedly
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owed for the work she and similarly situated employees
performed at the hotel. After her former coworker was
dismissed from the suit and her counsel abandoned
attempts to certify a class (despite twice requesting and
receiving extensions of time to file motions for class
certification), Hicks proceeded in the case as the sole
plaintiff seeking three forms of compensation. In Count I
she claimed the Defendants owed her overtime wages
pursuant to the Fair Labor Standards Act (FLSA), 29 U.S.C.
§ 201 et seq. In Count II she sought payment of earned
but unpaid hourly wages pursuant to Indiana’s Wage
Payment Statute, Indiana Code § 22-2-5-1 et seq. Finally,
in Count III she sought payment of accrued vacation
pay under Indiana’s Wage Claims Statute, Indiana Code
§ 22-2-9-1 et seq. The case festered for three years, with
little activity on the docket until February 2010, when
the case was set for trial in June 2010.
Also in February 2010, Hicks sent a letter to Defendants’
counsel requesting them to supplement responses to
discovery requests originally answered in 2008. The
Defendants failed to supplement their responses in accordance with Hicks’s request in a timely manner,
leading the district court to grant Hicks’s motion to
compel in May 2010. The Defendants then supplemented
their responses to the interrogatories and requests for
production specified by Hicks. But they also included an
unsolicited supplemental response to Hicks’s Interrogatory Number 12. That interrogatory requested that the
Defendants identify each instance and the amount of cash
payments made to Hicks during her employment, and
the Defendants had originally responded in 2008 with
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seven instances of cash payments made in August and
September 2006, when Hicks was working as a security
guard. In responding to the motion to compel on June 1,
2010, the Defendants indicated they had made six additional cash payments to Hicks between December 8,
2006, and April 6, 2007, when Hicks was working as a
desk clerk.
Hicks promptly (still on June 1, 2010) moved in limine
to bar the introduction of any evidence of the alleged
additional payments during trial. She argued that the
tardy disclosure mandated exclusion under the Federal
Rules of Civil Procedure because it severely prejudiced
her case preparations. The district court was not convinced by her counsel’s assertion that indulging this
disclosure—a “mere twenty days” before trial—amounted
to “trial by ambush.” After discussing Hicks’s motion
to exclude in its final pre-trial conference on June 17,
2010, the district court ruled that the Defendants could
introduce evidence of the payments during trial.
Trial commenced on June 21, 2010. When Hicks rested
her case the following day, the Defendants moved for
directed verdicts in their favor on Hicks’s FLSA overtime
and Indiana Wage Claims vacation pay claims. The
district court granted the motion in part, having determined that the evidence presented by Hicks could not,
as a matter of law, support a jury verdict in her favor.
On the same day, the jury returned a verdict against
Hicks on the remainder of her overtime wages claim
(the only claim remaining in the trial), and the district
court subsequently entered judgment on that verdict.
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Hicks timely filed a notice of appeal and then moved
for a waiver of transcription fees. The Defendants opposed the motion, arguing that she did not fulfill the
district court’s request that she proffer reasons why her
issues on appeal were not frivolous. The district court
requested additional briefing from Hicks regarding the
necessity of a transcript to appeal the directed verdict on
part of her FLSA claim, but it denied the motion as to
any portions of the transcript relating to her vacation
pay claim, as it found that claim to be frivolous and
without any evidentiary foundation. Hicks moved for
reconsideration of the court’s vacation pay decision and
submitted information regarding her FLSA appeal. The
district court waived the transcription fee for the testimony relevant to her FLSA claim, but denied Hicks’s
motion for reconsideration, noting that Hicks “herself
testified at trial that she was not entitled to vacation
pay.” Hicks then procured only a partial transcript (comprising only those portions for which the transcription
fee was waived), and she submitted only a portion of
that partial transcript to this court in support of her appeal.
II. A NALYSIS
Hicks presents three issues on appeal. First, she contends that the district court erred by denying her motion
to exclude evidence of additional cash payments the
Defendants allegedly made to her. Second, she contends
that the district court erred in granting a directed verdict
in the Defendants’ favor on part of her FLSA claim for
two reasons: the district court erred in its enterprise
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coverage determination, and there was sufficient evidence for a jury to find that the Defendants were within
the FLSA’s coverage. Third, she contends that the
district court erred in granting a directed verdict in
the Defendants’ favor on her vacation pay claim
because there was no evidence that Defendants had a
published policy departing from the state’s default rule
of pro-rata vacation accrual.
A. Vacation Pay Claim
We deal with Hicks’s vacation pay issue first because
it is frivolous. Hicks testified at trial that she and Felling
agreed that she would not earn vacation time until
after having worked for over a year. The district court
entered a directed verdict on this claim because of that
testimony:
There is no dispute in [Hicks’s] mind that this is
not a circumstance where she was earning a little
bit a month. She had to be there a year to get a
week. She was terminated before that year. . . .
[T]he Defendant is entitled to judgment as a
matter of law with respect to the vacation claim
because of the agreement with respect to vacation
pay that the undisputed evidence establishes
in this case.
(Directed Verdict Tr. at 16-17.) We review de novo the
district court’s grant of judgment as a matter of law in
the Defendants’s favor on Hicks’s vacation pay claim.
Marcus & Millichap Inv. Servs. of Chicago, Inc. v. Sekulovski,
639 F.3d 301, 311 (7th Cir. 2011).
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On appeal, Hicks renews the argument she made in a
motion to reconsider below: in the absence of a published
policy to the contrary, covered workers in Indiana earn
vacation time pro rata. She cites Die & Mold, Inc. v. Western,
448 N.E.2d 44 (Ind. Ct. App. 1983), in support of that
proposition, but the case does not support her argument.
Die & Mold did hold that because “vacation pay is additional wages, earned weekly, where only the time of
payment is deferred, it necessarily follows that, absent
an agreement to the contrary, the employee would be
entitled to a pro rata share of it to the time of termination.” Id. at 48 (emphasis added). But unlike in Die &
Mold, see id. at 46, the unequivocal evidence in our case
showed that Hicks and the Defendants had “an agreement to the contrary” where each understood that Hicks
was not earning vacation compensation throughout
her employment. “In other words, she never rendered
the services necessary to have her interest in vacation
pay vest.” Williams v. Riverside Cmty. Corr. Corp., 846
N.E.2d 738, 748 (Ind. Ct. App. 2006).
Hicks neither addresses this foundation for the
district court’s reasoning nor explains the contradiction
between her testimony and her position on appeal. Although she argues that the Defendants introduced no
evidence that they had a “published policy” stating
that employees would not earn vacation time pro-rata
through their first year of employment, Die & Mold
does not require that all agreements be written or memorialized in printed publications. Hicks’s argument is
meritless, and we find no error in the district court’s
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determination that “there is absolutely no evidentiary
foundation” for her claim.
B. Admission of Evidence Regarding Cash Payments
We next address Hicks’s contention that the district
court erroneously denied her motion in limine to prevent the Defendants from introducing newly disclosed
evidence of additional cash payments. She alleges that
this error entitles her to a new trial without the admission of that evidence. As she did in her motion below,
Hicks argues that she prepared her case on the theory
that she’d been paid only by check while working as a
desk clerk and that the Defendants’ belated supplemental response alluding to evidence of cash payments
during that time was so prejudicial as to warrant
exclusion of that evidence. She makes the unsupported
allegation that the Defendants’ supplemental response
showing additional payments was “a baseless fabrication concocted by [the Defendants] to confuse this court.”
(Reply Br. at 8.)
We would ordinarily review the district court’s denial
of Hicks’s evidentiary motion in limine for an abuse of
discretion, as “decisions regarding the admission and
exclusion of evidence are peculiarly within the competence of the district court.” Aldridge v. Forest River, Inc.,
635 F.3d 870, 874 (7th Cir. 2011) (quoting Von der Ruhr v.
Immtech Int’l, Inc., 570 F.3d 858, 862 (7th Cir. 2009)). But
our review is significantly hampered by the absence of
any record of the district court’s reasoning below. Hicks
requested transcripts from the trial, but she did not
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request transcription of (or even waiver of the transcription fee for) the oral arguments or bench ruling on her
motion in limine. 1 Her failure to abide by Federal Rule
of Appellate Procedure 10 leaves us without a meaningful basis of review and results in a forfeiture of her
argument. See Fed. R. App. P. 10(b)(2); Learning Curve
Toys, Inc. v. PlayWood Toys, Inc., 342 F.3d 714, 731 n.10
(7th Cir. 2003). Further, Hicks’s brief does not describe—let alone address or refute—any of the district
court’s reasons for denying her motion to exclude, and
she cites only one inapposite case in support of her position. See Fed. R. App. P. 28(a)(9); Smith v. Ne. Ill. Univ.,
388 F.3d 559, 569 (7th Cir. 2004). Her evidentiary challenge is therefore doubly forfeited.
We could review her forfeited contention for plain
error, but we rarely apply that doctrine in civil cases,
and our assessment shows that hers is not a case with
exceptional circumstances or one where a miscarriage
of justice could occur if we decline to exercise our discretion and apply plain error review. See Jackson v. Parker,
627 F.3d 634, 640 (7th Cir. 2010). Hicks asserts that she
prepared her entire case on the assumption that no
cash payments from her desk clerk tenure would be
discussed at trial, that the Defendants violated discovery
rules by waiting so long, and that finding out twenty
days before trial that the evidence would be presented
1
Nor did Hicks indicate that transcription was unavailable
due to the absence of an audio recording or machine-aided
shorthand record of the hearing. See Fed. R. App. P. 10(c).
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left her without time to prepare her case.2 Yet Hicks
does not explain why it was an abuse of discretion to
admit the evidence; rather, she provides only a conclusory statement that the “tardy disclosure of this vital
information severely prejudiced Employee’s ability to
prosecute this action as the circumstances amply demonstrate.” (Appellant’s Br. at 8.) We cannot agree. The
alleged payments would have been made to Hicks, so
she would have had knowledge of them or of their nonexistence. She might have been surprised by evidence
thereof, but we perceive no reason why refutation
of that evidence would have required extraordinary
preparation that could not have been accomplished in
a “mere” twenty days. Perhaps she believed the evidence was prejudicial simply because it undermined
her case. Indeed, her request for a new trial where
2
The appellees indicated that Hicks’s counsel had actual
knowledge of the purported cash payments at least as early as
May 20, 2010, as they were discussed during a settlement
conference before Magistrate Judge McVicker Lynch. Hicks
did not deny this knowledge. Her counsel instead moved to
strike the comment—because the disclosure of that information “clearly” violated Local Alternative Dispute Resolution
Rule 1.6—and requested that we impose sanctions for the
violation. Counsel is incorrect, as the local rules he attempts
to invoke “clearly” state: “Settlement conferences conducted
by the Judges and Magistrate Judges of the Court are not
governed by these Rules.” S.D. Ind. Local A.D.R. Rule 1.1.
Regardless, the important point is that counsel likely had
knowledge of the Defendants’ intent to prove the additional
payments at least a month in advance of trial.
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that evidence would be excluded strongly suggests her
underlying objection: if “trial by ambush” was her actual
concern, the additional preparation time afforded by a
remand for retrial would certainly cure any prejudice
arising from the timing of the disclosure. Her requested
remedy convinces us that the alleged prejudice arises from
the evidence’s power to persuade and not the timing of
its disclosure. That is not a kind of “prejudice” that warrants exclusion. See Cobige v. City of Chicago, Ill., ___ F.3d
___, ___, 2011 WL 2708756, at *4 (7th Cir. July 12, 2011)
(“This kind of effect is not ‘prejudice’ at all—not unless
we count as ‘prejudice’ all evidence that undermines
the other side’s contentions . . . .”).
We also cannot conclude that a miscarriage of justice
likely occurred. We acknowledge that the Defendants
did not timely supplement their discovery responses
and even had to be compelled by the district court to
respond. See Fed. R. Civ. P. 26(e)(1). Hicks repeatedly—but selectively—quotes language from Federal
Rule of Civil Procedure 37(c) to argue that belated disclosure prevents admission of any evidence of the additional cash payments: “a party that ‘. . . fails to provide
information . . . as required by Rule 26(a) or (e) . . . is not
allowed to use that information . . . to supply evidence on
a motion, at a hearing, or at a trial . . . .’ Rule 37(c)(1)
(emphasis added).” (Appellant’s Br. at 10; Reply Br. at 8.)
Her incomplete quotation is misleading. In a salient
segment Hicks omits, the Rule goes on to qualify the
proscription on use:
. . . unless the failure was substantially justified or
is harmless. In addition to or instead of this sanc-
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tion, the court, on motion and after giving an
opportunity to be heard: (A) may order payment
of the reasonable expenses, including attorney’s
fees, caused by the failure; (B) may inform the
jury of the party’s failure; and (C) may impose
other appropriate sanctions, including any of the
orders listed in Rule 37(b)(2)(A)(i)-(vi).
Fed. R. Civ. P. 37(c)(1) (emphases added). The district
court responded appropriately to the Defendants’ delay
by ordering the Defendants to pay a portion of Hicks’s
attorney’s fees and by informing the jury of the allegedly
late disclosure and their answering questions about the
circumstances. See Fed. R. Civ. P. 37(c)(1). It could have
excluded the additional cash payment evidence, but
Hicks offers no convincing reason why the alternative
sanctions chosen by the district court were not sufficient remedies—let alone any indication that a miscarriage of justice resulted.
We discern neither extraordinary circumstances nor
a risk of miscarried justice in this case, so we choose not
to conduct a full plain error review of this forfeited
issue. Nor do we find any manifest indication that the
district court abused its discretion by admitting the
evidence while sanctioning the Defendants’ delay. Accordingly, we affirm its denial of Hicks’s motion in limine.
C. Enterprise Coverage under the FLSA
Hicks also contends that the district court erred in
granting a directed verdict in the Defendants’ favor on a
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portion of her FLSA claim based on its determination
that her employer at the time did not fall within the
FLSA’s coverage. She first argues that Felling was bound
by the FLSA as a matter of law because he controlled
an enterprise of businesses with a common business
purpose. She then argues, in the alternative, that the
jury should have decided whether Felling was within
the FLSA’s coverage based on his testimony at trial
about his annual revenues in one of his companies,
Felling Hotels, LLC. We review de novo the district court’s
grant of judgment as a matter of law on Hicks’s FLSA
claim in the Defendants’s favor. Marcus & Millichap,
639 F.3d at 311.
Under the FLSA, an employer must pay its employee
overtime wages (150% of the employee’s hourly wage)
for each hour worked in excess of forty hours a week. 29
U.S.C. § 207(a)(1). For Hicks to prevail on her FLSA
claim for overtime wages, she must first demonstrate
that she or her “Employer”—a concept she defines as the
combination of Felling and Avery Drei—falls within the
Act so as to trigger its substantive provisions. During
oral arguments on the Defendants’ motion for a directed
verdict on this count, the district court concluded that
Hicks would have been engaged in commerce while
working as a desk clerk at the hotel and that she could
therefore seek overtime wages under the FLSA for
that period. Accordingly, the district court denied the
Defendants’ directed verdict motion to that extent, allowing the jury to consider her claim.
While the hotel was being constructed in 2006 and
Hicks was working as a security guard, however, Hicks
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was arguably not engaged in interstate commerce. To
place herself within the FLSA’s protection during that
period, Hicks argues that the Defendants were part of
“an enterprise engaged in commerce” because Felling
operated several businesses. 29 U.S.C. § 207(a)(1). The
FLSA defines an enterprise as “the related activities
performed (either through unified operation or common
control) by any person or persons for a common business purpose, and includes all such activities whether
performed in one or more establishments or by one
or more corporate or other organizational units.” 29
U.S.C. § 203(r)(1). Thus, to fall within enterprise coverage, Felling’s businesses must “1) be engaged in
related activities, 2) under unified operation or common
control, and 3) have a common business purpose.” Reich
v. Gateway Press, Inc., 13 F.3d 685, 694 (7th Cir. 1994).
Further, the enterprise must have an “annual gross
volume of sales made or business done [of] not less
than $500,000.” 29 U.S.C. § 203(b)(1)(A).
According to Hicks, Felling’s various business endeavors—including Felling Hotel, LLC (operating entity for
two hotels not involved in this suit) and Felling Investments, LLC (rental property management company)—
meet these elements, as they were under Felling’s control
and operation and had combined annual gross revenues
in excess of $500,000. The district court assumed that
Hicks demonstrated the common control criterion, but
it questioned what common business purpose united
the endeavors into a single FLSA enterprise. (Directed
Verdict Tr. at 9.) Her counsel responded, “The common
business purpose is to make money and how they do
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that can be different.” (Id. at 10.) The district court, noting
that a profit motive alone is not a sufficient common
business purpose, found that the businesses did not
constitute an enterprise under the FLSA. Accordingly,
it granted a judgment as a matter of law in the Defendants’ favor as to Hicks’s overtime claim as it related to
her time as a security guard in 2006. (Id. at 20-22.)
Hicks asks us to review and reverse that judgment, but
she takes an entirely different tack on appeal than she
took below. She now argues that Felling “used the resources of Felling Investments, LLC and Felling Hotel,
LLC for the common business purpose of constructing
the hotel.” (Appellant’s Br. at 12.) This theory was never
presented, let alone developed, in the district court.
Because she advances a completely different theory
before us than she advanced below, she has forfeited
this issue. See Jackson, 627 F.3d at 640; cf. Liberles v. Cook
County, 709 F.2d 1122, 1127 (7th Cir. 1983) (“It is a
well-settled rule that a party opposing a summary judgment motion must inform the trial judge of the reasons,
legal or factual, why summary judgment should not be
entered. If it does not do so, and loses the motion, it
cannot raise such reasons on appeal.”). The argument
she did make lacks merit; the district court was correct
that a profit motive alone does not constitute a “common business purpose” as required for enterprise coverage in the FLSA. Brennan v. Veterans Cleaning Serv.,
Inc., 482 F.2d 1362, 1367 (5th Cir. 1973) (“More than a
common goal to make a profit, however, must be shown
to satisfy the requirement.”); Wirtz v. Columbian Mut. Life
Ins. Co., 380 F.2d 903, 907 (6th Cir. 1967) (same).
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Hicks decided not to provide a complete transcript of
the district court’s reasoning regarding its enterprise
coverage decision, 3 she changed her tack on appeal so
that neither the district court nor the Defendants had an
opportunity to respond to the theory now espoused, and
she neither acknowledged this forfeiture nor made
any attempt to show the elements required for plain
error review in her brief. Accordingly, we decline to
review this aspect of her contention for plain error. See
Jackson, 627 F.3d at 640.
We also find no merit in her final argument regarding
FLSA coverage. Hicks argues that the district court
should have allowed the jury to decide whether
Felling Hotels, LLC independently earned more than
$500,000 in annual revenue. She does not explain the
relevance of that potential finding in light of her defining
her “Employer” as Avery Drei and Felling individually,
but we will assume she implicitly argues that Felling
Hotels and Avery Drei are both innkeeping ventures
that should comprise an FLSA enterprise. It is true that
Felling’s testimony established that one of his businesses
(Felling Hotels) could have had revenues of over $500,000
in 2005. But the transcript shows that he was completely
uncertain about the values, and no other testimony or
3
At least sixteen of the twenty-two pages comprising the
directed verdict argument transcript involve counsels arguments and the district court’s ruling and reasoning on the
enterprise coverage issue. Hicks included only one of those
pages in her separate appendix, and that page does not show
the district court’s decision or rationale.
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evidence showed the amount of gross revenue the
entity earned. Nor did Hicks seek any business records
or other documentation of revenue during discovery.
Felling’s testimony, standing alone, would not support the conclusion that Felling Hotels met the revenue
threshold outlined in 29 U.S.C. § 203(b)(1)(A). See Fed. R.
Civ. P. 50(a); Zimmerman v. Chicago Bd. of Trade, 360 F.3d
612, 623 (7th Cir. 2004) (“[I]n order to reverse a district
court’s grant of judgment for the defendants as a matter
of law, there must be more than a mere scintilla of evidence to support the plaintiffs’ case.”).
Further, the ultimate determination whether the employer is an enterprise subject to FLSA’s requirements
is ordinarily the court’s province, not the jury’s. See
Sapperstein v. Hager, 188 F.3d 852, 856 (7th Cir. 1999); Reich
v. Bay, 23 F.3d 110, 114 (5th Cir. 1994); Brock v. Hamad, 867
F.2d 804, 806 (4th Cir. 1989); Brennan v. Plaza Shoe Store,
Inc., 522 F.2d 843, 846 (8th Cir. 1975). In light of the
meager evidence of revenue; Hicks’s undeveloped argument as to its significance; her decision not to include
the transcript of the court’s decision; and her neglect of
the district court’s reasoning in her appellate arguments, we cannot conclude that the district court erred
in granting the Defendants’ motion for a judgment of
law on her FLSA overtime wage claim.
III. C ONCLUSION
Finding no error in the district court’s rulings and
judgments, we A FFIRM .
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C UDAHY, Circuit Judge, concurring in part and concurring in the judgment. With respect to the issue of Fair
Labor Standards Act (FLSA) coverage, I believe that
there is sufficient evidence to avoid a judgment for
the defendants as a matter of law. Specifically, Chance
Felling’s testimony contains an admission against his
interest, as the owner of Felling Hotels, that the company could have had revenues exceeding $500,000. He
was probably the most authoritative witness on the
subject of the company’s income, and the fact that his
testimony was somewhat equivocal should fall by the
wayside when the evidence is viewed in the light most
favorable to the plaintiff. See Cooper v. Carl A. Nelson &
Co., 211 F.3d 1008, 1017 (7th Cir. 2000). However, as the
majority points out, Felling Hotels is not a named defendant, and there is no explanation how its potential
liability under the FLSA is connected to the liability of
the defendants that are named in this suit. I therefore
join the judgment of affirmance.
8-17-11
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