Coleman et al v. Morris-Shea Bridge Company Inc et al

Filing 182

MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 9/27/2021. (PSM)

FILED
2021 Sep-27 PM 02:51
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
LARRY COLEMAN, et al.,
Plaintiffs,
v.
MORRIS-SHEA BRIDGE
COMPANY, INC., et al.,
Defendants.

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2:18-cv-00248-LSC

MEMORANDUM OF OPINION
Litigants have an obligation to refrain from “playing fast and loose with the
courts,” and from using “intentional self-contradiction . . . as a means of obtaining
[an] unfair advantage.” Patriot Cinemas, Inc. v. Gen. Cinemas Corp., 834 F.2d 208,
212 (1st Cir. 1987) (quoting Scarano v. Central R. Co., 203 F.2d 510, 513 (3d Cir.
1953)). Here, the Plaintiffs violated that duty in an apparent attempt to gain an unfair
advantage.
Plaintiffs Larry Coleman (“Larry”), Chester Coleman (“Chester”), and
Freddie Seltzer (“Freddie”) (collectively, “Plaintiffs”), three African American
brothers, brought this action against their former employer, Morris-Shea Bridge
Company (“MSB”), and the President of MSB, Richard J. Shea, Jr. (“Shea”)
(collectively, “Defendants”). Plaintiffs asserted twenty-two claims against
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Defendants for race discrimination, age discrimination, and unpaid overtime wages
under the FLSA. (See doc. 18.) Defendants filed a motion for summary judgment on
all claims. (Doc. 75.) The Court granted Defendants’ motion as to twenty-one of
twenty-two claims. (See docs. 123 & 124.) The remaining claim, Larry’s FLSA claim
for unpaid overtime wages, was presented before a jury, which found in favor of
Defendants. (See doc. 156.)
During the trial, the Court expressed concern regarding testimony elicited
from Chester and Larry by their counsel. Chester and Larry made completely
contrary representations during trial to their sworn deposition testimony and
declarations, which were presented to this Court in opposition to Defendants’
motion for summary judgment. Larry also appears to have made completely contrary
representations to the Social Security Administration (“SSA”) in an application for
disability benefits.
At the conclusion of the trial, the Court ordered Plaintiffs to show cause as to
why they should not be judicially estopped from making contradictory assertions of
fact in their claims against Defendants. (See doc. 160.) Plaintiffs filed a response to
the order on July 22, 2021. (Doc. 164.) Defendants filed a reply on July 30, 2021.
(Doc. 165.) Plaintiffs filed a motion seeking leave to respond to the Defendant’s reply
because Defendants suggested sanctions might be appropriate in their reply. (Doc.
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166.) On August 10, 2021, this Court granted that motion and ordered Plaintiffs to
respond by August 16, 2021. (Doc. 172.) On August 12, 2021, Plaintiffs filed another
motion for extension of time to retain counsel before filing their response. (Doc. 173.)
This Court granted that motion and gave Plaintiffs until August 20, 2021 to retain
counsel and file their response. (Doc. 174.) On August 20, 2021, Plaintiffs filed a
response to Defendants’ reply to the show cause order and a response to
Defendants’ suggestion of sanctions. (Doc. 176 & 178.)
I.

BACKGROUND
The Court’s concerns regarding this case began at the summary judgment

stage where Plaintiffs made multiple misrepresentations in their briefs and
evidentiary citations submitted to this Court. Thus, before addressing the
inconsistencies at trial, the Court will address some of the ways in which it would
appear that Plaintiffs attempted to manipulate the summary judgment process.
First, Plaintiffs sought excessive extensions of time and blatantly disregarded
this Court’s orders. This case was filed in January 2018. This Court is responsible
for managing its docket and as such, it requires parties to follow its scheduling order
to allow for timely disposition of cases. That being said, the Court recognizes that
extensions of time are sometimes necessary and thus granted Plaintiffs and
Defendants multiple extensions throughout this case. (See docs. 41, 44, 46, 53, & 71,
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86.) Some of these extensions of time were for Plaintiffs to submit their response to
Defendants’ motion for summary judgment. Defendants filed their timely motion on
August 17, 2020. As stated in the Uniform Initial Order, Plaintiffs’ response brief
was due twenty-one days thereafter. (See doc. 17 at 13.) Plaintiffs requested an
additional two weeks to respond to Defendants’ motion. (See doc. 85.) Concerned
that this Court had already granted numerous extensions of time, the Court granted
in part Plaintiffs’ motion, providing them with an additional seven days in which to
file their response brief. (See doc. 86.) Plaintiffs then sought an additional seven-day
extension of time (See doc. 87), which this Court granted. (See doc. 90.) Finally,
Plaintiffs requested an additional eleven days to respond to Defendants’ motion. (See
doc. 97.) That request was denied; however Plaintiffs were permitted to supplement
their response to Defendants’ motion after taking two outstanding depositions if
needed. (See doc. 99.) Plaintiffs then submitted a ninety-nine-page response brief
that did not comply with this Court’s Uniform Initial Order. (See doc. 17 at 14
(“Initial and response briefs are limited to thirty pages.”).) Instead of striking their
brief for failure to comply with this Court’s Order, the Court gave Plaintiffs leave to
file a brief not to exceed fifty-nine pages. Plaintiffs complied with this Order in part.
Their brief still did not comply with the requirements of the Court’s Uniform Initial
Order as Plaintiffs’ footnotes were in 8-point type instead of 12-point type, perhaps
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in an effort to circumvent the page limitation (see id. at 10); however, preferring to
rule on the merits of Defendants’ motion with the benefit of Plaintiffs’ briefing, the
Court declined to strike Plaintiffs’ brief.
Second, even with extensions of time and additional pages in which to respond
to Defendants’ motion for summary judgment, Plaintiffs’ briefing contained
extensive apparent misrepresentations, many of which were outlined in this Court’s
Opinion. (See generally doc. 123.) In the following paragraphs, the Court will address
some of these misrepresentations.
In their motion for summary judgment, Defendants asserted as an undisputed
fact that per diem rates of pay for employees at their company fluctuated based on
factors such as cost of living, distance of travel, and the employee’s position. (Doc.
75 at 6 ¶ 26.) Defendants supported this assertion with citations to the evidentiary
record. Plaintiffs challenged this assertion, specifically stating that Plaintiffs
“[d]ispute that per diem rates fluctuate.” (Doc. 112 at 4 ¶ 26 & n.50.) However,
Plaintiffs cited to deposition testimony that did not support this assertion and instead
supported Defendants’ position that per diem rates fluctuated based on a variety of
factors. (See doc. 123 at 5 n.2.) As noted in the Court’s Opinion, Plaintiffs cited to
Shea’s deposition in which he stated that “in different areas, the wage rates change”
and that “per diem . . . fluctuates by area, depending on . . . what the cost of living
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is.” (Doc. 76–3 at 64 & 67.) Obviously, this quote does not support Plaintiffs’
assertion that per diem rates did not fluctuate as they cited to deposition testimony
that stood for the contrary position.
Plaintiffs then filed a Motion to Reconsider, arguing that the Court
misconstrued their position and accusing the Court of resolving material disputes of
fact in favor of Defendants. (See doc. 132 at 10–14.) Even in this, Plaintiffs
misrepresented their own summary judgment brief as well as this Court’s Opinion.
Plaintiffs repeatedly cited to page thirty-nine of their response brief for the
proposition that “Plaintiffs clearly admit that per diem rates may fluctuate based on
cost of living in the area where an employee is required to work.” (See doc. 132 at
10.) Obviously, if Plaintiffs dispute that per diem rates fluctuate, they have not
“clearly admitted” that per diem rates fluctuate. As Plaintiffs cited to this deposition
testimony to dispute Defendants’ assertion that per diem rates fluctuated, Plaintiffs’
argument that the Court improperly relied on their own evidence is perplexing.
As another example, Defendants asserted that hourly employees were paid
overtime for work “in excess of forty hours a week or on scheduled holidays.” (Doc.
75 at 7 ¶ 28.) Defendants supported their assertion with a citation to their employee
handbook. (See doc. 76-4 at 10.) Plaintiffs disagreed with this representation and
asserted as part of their response that “Larry’s salary was based on a 50-hour work
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week; Watson’s and Dennis’ [two other employees] were based on 40 hours.” (Doc.
112 at 4 ¶ 28 & n.54.) While Plaintiffs’ assertion is not a direct response to
Defendants’ statement as Larry was not an hourly employee, Plaintiffs offered no
evidence to support their assertion. Instead, Plaintiffs cited to Larry’s deposition
testimony (doc. 76-7 at 116:17–23); Sean Watson’s deposition testimony (doc. 10077 at 15:3–8); and Tony Dennis’s deposition testimony (doc. 111-1 at 142:18–22).
(See doc. 112 at 4 ¶ 28 & n.54.) But the cited deposition testimony does not even
remotely relate to Plaintiffs’ assertion. The cited testimony from Larry’s deposition
is as follows:
Q: As the superintendent, did you have the authority to
rectify that situation?
A: No.
Q: Okay. Why do you say that?
A: Because there was other superintendents on that job
before I did had—had seniority and they—and, you know,
they was there before I got there. So I wasn’t the – the head
– the head man
(Doc. 76-7 at 116:17-23–117:1.) The cited testimony from Sean Watson’s deposition
testimony is as follows:
A: The day I received the summons, I did text him and let
him know that I had been summoned—a subpoena.
Q: The subpoena, when you received that?
A: Yes, ma’am.

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(Doc. 100-77 at 15:3–8.) The cited testimony from Tony Dennis’s deposition is as
follows:
A: Just when you—when you work a job and you put in 70
hours a week, and then you work a job and you do 40 hours
a week, you can do the math right there, and it don’t come
out.
(Doc. 111-1 at 142:18–22.) The deposition excerpts provided by Plaintiffs in no way
supported their assertion that Larry’s salary was based on a fifty-hour work week,
whereas other employees’ salaries were based on a forty-hour work week.
Plaintiffs’ also challenged Defendants’ assertion that Larry engaged in some
supervisory duties at MSB. Defendants quoted from Larry’s deposition testimony,
stating that Larry’s “duties included ‘giv[ing] out work assignment[s], mak[ing]
sure that [the crew] did what they was (sic) assigned to do.’” (Doc. 75 at 12 ¶ 37
(quoting doc. 76-7 at 41: 9–13).) Defendants also quoted from Shea’s deposition
testimony to support their assertion that Larry supervised and directed a crew of
several workers. (See id. (quoting doc. 76-2 at 123:8–124:9 & 397:16–398:6).)
Plaintiffs disputed this, without explanation, and then cited to the following sections
from Larry’s deposition testimony (see doc. 112 at 8 ¶ 37 & n.73):
A: It was different because I went back—I went back as a—
as a pile—as a pile driving foreman when I went back
because that what Tony—Tony had hired me back as a
pile-driving foreman. And I was able to run a crew, you
know, tell the guys—you know, tell the guys what to do,
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you know. And just take—because I was the night shift
foreman. I was—I was pretty much over the whole thing
at the time.
Q: When you say the whole thing, what do you mean?
A: The whole job, the whole night shift.
Q: And as part of your duties being over the entire night
shift, did you have to do any paperwork for your crew?
A: Yes, I did.
Q: Tell me about that.
A: Had to fill out the time sheets. Basically back then it was
time sheets, and if I got a delivery in, I had to, you know,
sign for it.
Q: Any other paperwork?
A: That I—not that I can recall at the time.
Q: And were you able to complete that paperwork
yourself?
…
Q: And you recall specifically that Mr. Shea did make you
a superintendent at some point during that job at Bowater?
A: Yes.
Q: Is that correct?
A: Yes.
Q: And how did your job duties change as a superintendent
versus what they had been as a foreman?
A: It changed—it changed from—it gave me more
responsibility. I had to work—I had to deal with—the
client. I had to see to the crew. I had to order material. And
made—to make sure that everything went as smoothly as
possible or as good as possible.
Q: Did that superintendent position require more
paperwork to be completed than the foreman position?
A: As time went by, yes, it did.
Q: Tell me about the additional paperwork.
A: Safety paperwork, you know, for say S–JSAs. Going to
meetings, you know, right when a—when a person left,
you know, you had to—you had write them a slip of—a
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slip on about whether, you know, whether—what he was
left or why he fired or it was—it was quite a bit of
paperwork, you know, I can’t remember every piece that
we—that I’ve done.
Q: And did the paperwork take a considerable amount of
time?
A: Yes, it did.
Q: Did you ever find yourself having difficulty getting all
that paperwork done?
Object to form.
A: No, I didn’t have no difficulty—I just had the timing.
Sometime I had to take it home on the weekend to—to—
to finish it and have it ready for Monday morning.
Q: Were you always able to turn in the paperwork on time?
A: Yes, sir.
Q: Did you ever have to seek out any assistance in doing
that paperwork?
A: No.
((Doc. 76-7 at 59:2–60:2; 69:1–70:21.) The cited deposition testimony actually
confirms Defendants’ assertion that at times, Larry engaged in some supervisory
duties. This testimony certainly does not create any dispute regarding Defendants’
assertion that Larry had some supervisory duties. These are but a few examples that
are illustrative of much of Plaintiffs’ brief, where assertions of fact were made, but
the citations to the evidentiary record in no way provided support for those
assertions.
Plaintiffs also made misrepresentations in the evidentiary material submitted
with their brief in opposition to summary judgment. Larry, Chester, and Freddie
signed declarations under penalty of perjury, drafted by their attorneys, in which
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they attested to certain facts, such as the fact that Larry was in a supervisory role at
MSB. Some of the facts attested to in these declarations could not be reconciled with
Larry, Chester, and Freddie’s sworn deposition testimony, and thus the Court
struck these assertions as stated in its Opinion. (See doc. 123 at 1821.) For example,
Chester stated in his deposition that he had been terminated once for failing a drug
test. (Doc 76–9 at 20.) Yet, in his declaration opposing summary judgment, Chester
swore that he “never received any discipline” while working for MSB. (Doc. 102–2
at 1.) Larry, in his deposition, stated that it was his personal choice to work alongside
his crew. (Doc. 76–7 at 29.) Yet, in his declaration, Larry swore that he was
“required” to work alongside his crew. (Doc. 102–1 at 1.) Freddie’s declaration and
deposition were also inconsistent. For instance, in his deposition, Freddie stated that
the only person to whom he expressed an interest in being promoted was his brother,
Larry. (Doc. 76–12 at 23–24.) Yet, in his declaration, Freddie swore that he was
“denied job advances and promotions due to my race.” (Doc. 102–3 at 3.) Despite
these inconsistencies, the Court declined to strike the declarations in their entirety,
and instead relied upon statements asserted by Plaintiffs which were consistent with
their sworn deposition testimony. In ruling on summary judgment, the Court still
gave careful consideration to all of Plaintiffs’ claims and evidence, even though it
was difficult to determine which portions of Plaintiffs’ brief and evidentiary material
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should be relied upon by the Court. And, upon pointing out the Court’s
disappointment with Plaintiffs’ briefing, Plaintiffs responded that any errors were
the fault of this Court for not granting sufficient extensions of time and enough
additional pages for their response brief. (See doc. 132 at 39.)
At trial on Larry’s FLSA claim, the Court expressed concerns with both
Chester and Larry’s testimony. Concerning Chester, both his sworn deposition
testimony and declaration submitted at the dispositive motion stage conflicted with
his testimony at trial. In his declaration, Chester attested that Larry was a
superintendent who:
did his own payroll, hired employees for the job and performed all the
duties of a superintendent. He never asked to be promoted because he
was in the highest job available other than a job in the office… Larry
could perform all the duties on a job site as the highest level
superintendent on site.
(Doc. 102-2 at 6 ¶ 21.) During his deposition, Chester similarly identified Larry as a
superintendent that he worked under. Chester testified as follows:
Q: Okay. What other superintendents did you work with
besides Lee Dubberly?
A: Let me think about it. It’s hard for me to come up with
some names because these guys I haven’t seen them in a
long time. Well, Larry, he was -- he was superintendent so
he had some jobs and I worked with him.
Q: Larry?
A: Larry Coleman, my brother.
…
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Q: All right. What -- what was your brother Larry’s
position at the time, let’s say, 2017? Was he a foreman,
superintendent or what?
A: Well, as far as I’m concerned, he was still a
superintendent. Because at the -- he was --he had -- you
know, they put him over jobs before we went to the lake,
and he was superintendent.
(Doc. 76-9 at 16:5–13, 87:8–14). During the trial, Chester’s testimony was initially
that:
Q: Who were your supervisors when you were working at
Morris-Shea Bridge?
A: Lee Dubberly – they had multiple supervisors that I
worked under. Larry Coleman, my brother, he was in a
supervisor position, he was a foreman. And that about it.
(Doc. 163-4 at 5.) However, Chester then testified that:
Q: Did you ever see Larry performing supervisory or
management activities?
A: Very rarely. If anybody needed to learn something, he
would show them. You know, we all did that. If one was
performing a job and he wasn’t doing it right, he would
show him how to do it. So I guess that would be a part of
supervisory work.
Q: But the majority of the time when you were working
with Larry was he performing manual labor with the crew
or was he performing management or supervisory
functions?
A: Well, he always doing manual labor because he knew
more about the job and he had to work -- a lot of time I was
in the machine, you know, I couldn’t be on the ground. So
he did a lot of labor work.
(Id. at 6–7.)

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On cross examination at trial, Defendants’ counsel presented Chester with his
declaration, in which he had attested that Larry was a superintendent. On redirect,
Plaintiffs’ counsel attempted to rehabilitate Chester, asking if Larry was a
superintendent between 2015 and 2017. The following exchange occurred:
Q: Was Larry a superintendent on any job where you were
working with him during 2015 to 2017?
A: I think that he had been like demoted from
superintendent down to foreman.
Q: Was Larry a superintendent on a job where you were
working some time before 2015?
A: Yeah, he have -- he have performed his own jobs.
Q: Between 2015 and 2017 was Larry working as a
superintendent or a foreman?
A: I take it to be as a foreman.
Q: When Larry was working as a superintendent, did he do
his own payroll, hire employees and perform all duties of a
superintendent?
A: He did his own payroll, but we already had a crew, so
he didn’t hire anybody that I know of.
(Id. at 48.) Even if these statements could be reconciled with Chester’s declaration,
Plaintiffs’ counsel led Chester to give a response that completely contradicted his
sworn deposition testimony, where he stated that Larry was a superintendent when
Chester worked with him from 2015 to 2017. This was important because in order to
prevail on his FLSA claim, Larry could not be a supervisor.
Larry similarly had sworn statements submitted at summary judgment that
conflicted with his testimony at trial. In his declaration, Larry swore as follows:
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I ran my own job sites as a superintendent. I did my own payroll, hired
employees for the job and performed all the duties of a superintendent.
I never asked to be promoted because I was in the highest classification
other than a job in the office. I was performing the duties of a
superintendent without the pay.
(Doc. 102–1 at 8 ¶ 34.)
In his deposition, Larry again claimed to be a superintendent. Larry testified
as follows:
Q: What position do you think you were rehired on on
September of 2014?
A: As superintendent, because that’s what I did when I
went back. I went back to take over a job just like Sam
Gardner did, just like Johnny Diemer did when he -- when
he -- when he left, come back --he left and took a whole
crew with him. Keith Pate, he come back to take over the
job. David Turberville left, come back and took over a job.
And they --they -- they – they put them back as a
superintendent. When I went -- this document here, when
I went to Maryland, I took over a job. So I don’t know why
they call me. They never even say --they never said that I
was a salaried foreman because I didn’t -- I did -- I did -- I
run the job just like other superintendents ran they job.
(Doc. 76–7 at 309:23–310:1–15.) These representations are consistent with Larry’s
representations on his SSA disability application, where he stated that he was a

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superintendent who supervised ten workers for over eight hours a day. (Doc. 1643 at 5, 10–11.)1
Yet when asked about his position at MSB at trial, Larry testified that he was
not in a supervisory role. Larry testified as follows:
Q: And what was your job title?
A: 2015, I don’t think I -- I don’t think, actually, I had a
title from the company. But I called myself, I called myself
a superintendent, I called myself a foreman based on the
years before, way back years before when I did foreman and
superintendent work. But when I – I came back to MorrisShea in 2015. And when I -- I went to Mr. Shea and I asked for
my job back. And he did -- when he decided to hire me back,
he told me I wasn’t going to be no foreman, he was going to
send me on that job as a pile driver up in Maryland, that’s the
job that I went on, first job I went on when I came back. So I
didn’t do no -- I didn’t do no superintendent work other
than with the crew, I worked with the crew when I went up
there, because there was nobody in the crew that knew
anything as far as piledriving. So I went and I did all the -everything that it need to do. Except for the hiring, the
firing, and the paperwork, and do that. I just -- I just got in
the crew and went to work, you know.
…
Q: When you were working these different projects [after
being rehired by Morris-Shea in 2014], and I’m looking at
the sheet we have in front of the jury right now, Bates
number 5083, were you supervising or doing other work?
A: No, I was – I was in the mix with the – putting it all
together. I wasn’t supervising.
1

The Court notes that this portion of Larry’s SSA disability application was not submitted
by the parties for consideration at summary judgment. If it had been, then the Court’s analysis
regarding Larry’s FLSA claim likely would have been different.

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…
Q: Were those supervisory jobs that you were performing
there?
A: That I was – no.
Q: What were you doing there?
A: The actual work.
…
Q: And do you see anywhere on special projects [Shea
Lake and Richard Shea’s house] where you were
categorized or labeled as a superintendent, foreman or
laborer?
A: No.
Q: When you were working at either Richard Shea’s lot or
the Shea lake, did you have a crew?
A: No, I didn’t have a crew.
…
Q: Were you doing supervisory work at the Birmingham
Thunderbolts?
A: No.
Q: Did you have a crew?
A: No. It was a crew there, but I didn’t have a crew.
…
Q: Did you have a crew on that job [Richard Shea’s
house]?
A: No, I didn’t have -- Chester and Freddie was there, but it
wasn’t my crew.
…
Q: On any job you were doing, what was your primary job
duty?
A: Didn’t have one. I was all over the place from fixing
hammers to moving piles to driving piles to looking over - looking over the crew, made sure that they were doing
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what they suppose to do. . . .
…
Q: Could you hire and fire from 2015 to 2017?
A: No.
…
Q: Do you believe you were misclassified as a salaried
employee from 2015 to 2017 on some jobs at Morris-Shea.
A: Yes, I believe so.
Q: Why?
A: For the work that I did. You know, like I said, I don’t
know -- I believe when -- when it -- when it rain, I don’t
think the other superintendent was done like me or other
foreman was done like me. When they, you know, when
they said I was – when they say I was another foreman or a
superintendent and then they say I wasn’t nothing, you
know, I didn’t -- I really didn’t think that I was in that rank
with them, you know, as higher up management. Because
when the job was being done, I got out there and I
performed the job. And I don’t know if they looked at me
as upper management just because I was able to do it and I
just went and did it. I didn’t have to have no
superintendent telling me what to do because of my thirtyfive years of experience. But I wasn’t paid like the rest of the
superintendents. I wasn’t treated like the rest of the
superintendents because -- well, that’s why I – that’s the
way I feel that I was misclassified.
(Doc. 163-4 at 82–83, 97–98, 105–107, 128–29, 133–34).
It appears that both Larry and Chester altered their testimony in this case
regarding whether Larry was a supervisor to strengthen the argument that Larry was
incorrectly classified as an exempt employee under the FLSA

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The Court understands that parties often attempt to present facts in the light
most favorable to their claims; however, they are not permitted to change the facts
back and forth in an effort to survive judgment. Perhaps each incident outlined by
the Court, standing alone, does not rise to the level of intentionally “playing fast and
loose” with the Court. However, when viewed in the aggregate, Plaintiffs’ actions
support the conclusion that Chester and Larry are attempting to manipulate the
judicial system as they see fit, without regard for the integrity of the system.
II.

DISCUSSION
Judicial estoppel is an equitable doctrine intended “to protect the integrity of

the judicial process.” New Hampshire v. Maine, 532 U.S. 742, 749–50 (2001) (quoting
Edwards v. Aetna Life Ins. Co., 690 F.2d 595, 598 (6th Cir. 1982)). Judicial estoppel
is properly invoked when a party makes a “calculated assertion of divergent sworn
positions [that makes] a mockery of justice.” McKinnon v. Blue Cross & Blue Shield,
935 F.2d 1187, 1192 (11th Cir. 1991) (quoting Am. Nat’l Bank v. FDIC, 710 F.2d 1528,
1536 (11th Cir. 1983)). The Supreme Court suggested several “non-exclusive”
factors to consider when determining whether to apply judicial estoppel, including
that (1) “a party’s later position must be ‘clearly inconsistent’ with its earlier
position”; (2) a court adopted a party’s position such that “judicial acceptance of an
inconsistent position in a later proceeding would create ‘the perception that either
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the first or the second court was misled’”; and (3) “the party seeking to assert an
inconsistent position would derive an unfair advantage or impose an unfair detriment
on the opposing party if not estopped.” New Hampshire, 532 U.S. at 750–51
(acknowledging that there are “no inflexible prerequisites or an exhaustive formula
for determining the applicability of judicial estoppel”). The Eleventh Circuit
generally applies a two-factor test for judicial estoppel, examining whether (1)
“allegedly inconsistent positions were made under oath in a prior proceeding”; and
requiring that (2) “such inconsistencies must have been calculated to make a
mockery of the judicial system.” Parker v. Wendy’s Int’l Inc., 365 F.3d 1268, 1271
(11th Cir. 2004) (quoting Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282, 1285 (11th
Cir. 2002)); see also Slater v. U.S. Steel Corp., 871 F.3d 1174, 1180–81 (11th Cir. 2017)
(en banc).
Other circuits have applied the doctrine of judicial estoppel when parties
adopt inconsistent positions within the same litigation. See, e.g., Chrysler Corp. v.
Silva, 118 F.3d 56, 59–60 & n.5 (1st Cir. 1997) (affirming the district court’s dismissal
of the defendant’s counterclaim when he “repeatedly made judicial admissions
negating his [counterclaim], and, thus, is estopped from raising said claim”);
Morganroth & Morganroth v. DeLorean, 123 F.3d 374, 380–81 (6th Cir. 1997) (“A
party cannot testify one way at trial and then reverse her factual contentions on
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appeal in order to overcome an adverse evidentiary ruling.”); Milgard Tempering,
Inc. v. Selas Corp. of Am., 902 F.2d 703, 716 (9th Cir. 1990) (“This circuit has
recognized that the doctrine of judicial estoppel precludes parties from taking
inconsistent positions in the same litigation . . . .” Furthermore, some courts
“extend[] judicial estoppel in all cases where the offending party has played ‘fast and
loose’ with the court, even if ultimately unsuccessful.” (citing Patriot Cinemas, 834
F.2d at 212)); Allen v. Zurich Ins. Co., 667 F.2d 1162, 1166 (4th Cir. 1982) (stating
that “a party may properly be precluded as a matter of law from adopting a legal
position in conflict with one earlier taken in the same or related litigation . . . to
prevent the party from ‘playing fast and loose’ with the courts, and to protect the
essential integrity of the judicial process”); see also New Hampshire, 532 U.S. at 749
(recognizing that judicial estoppel “generally prevents a party from prevailing in one
phase of a case on an argument and then relying on a contradictory argument to
prevail in another phase” (quoting Pegram v. Herdrich, 530 U.S. 211, 227 n.8
(2000)).2

The Court notes that the Eleventh Circuit typically applies judicial estoppel when contrary
representations are made in separate judicial proceedings that involve bankruptcy. But the
underlying reasoning upon which the Eleventh Circuit relies is that “absent any good
explanation, a party should not be allowed to gain an advantage by litigation on one theory, and
then seek an inconsistent advantage by pursuing an incompatible theory.” Slater, 871 F.3d at 1181
(quoting Ryan Operations G.P. v. Santiam-Midwest Lumber Co., 81 F.3d 355, 358 (3d Cir. 1996)).
And, the Eleventh Circuit has not prohibited the application of judicial estoppel to a scenario in
2

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Applying judicial estoppel is appropriate in this case as Plaintiffs took
inconsistent positions to make a mockery of the judicial system. Throughout
Plaintiffs’ defense of summary judgment and motion to reconsider, Larry asserted
that he was a superintendent at MSB. This Court accepted that position in its
Memorandum of Opinion at the summary judgment stage. In that opinion, this Court
wrote that:
Larry provides a list of nine employees classified as foremen and
fourteen employees classified as superintendents. A similarly situated
comparator for Larry would have similar job responsibilities, similar
licenses or certifications, and a similar employment history. Thus, a
proper comparator would, at the very least, be either a foreman or
superintendent who lacked an NCCCO or CIC license, and who had no
other certifications from MSB.
(Doc. 123 at 33–34.) Therefore, this Court relied on the fact that someone with a
supervisorial role would be the comparator for Larry. For the purposes of his
discrimination claims, this Court failed to find a proper comparator existed because
of the differences in licenses, not because of the supervisorial status. Further, in
affidavits submitted at the summary judgment stage, both Larry and Chester claimed
that Larry was a superintendent who ran his own crew and had the power to hire and
fire. (Docs. 102-2 at 6; 102–1 at 8).

which parties seek to gain an advantage in the same litigation, such as is the case before the
Court.

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However, Larry and Chester have now represented, under oath at trial, that
Larry was not a superintendent in an attempt to prevail on his FLSA claim. For
instance, at trial Chester was asked whether he ever saw Larry performing
supervisory activities to which he responded, “very rarely.” (Doc. 163–4 at 6).
Chester was later asked if Larry was a superintendent between 2015 and 2017, to
which Chester replied, “I think that he had been like demoted from superintendent
down to foreman.” (Id. at 48). Plaintiffs’ counsel then asked Chester whether
“Larry was working as a superintendent or a foreman” between 2015 and 2017. (Id.)
Chester replied, “I take it to be as a foreman.” (Id.)
Larry was asked whether he could hire and fire himself from 2015 to 2017 to
which he responded “[n]o.” (Id. at 129.) Larry was also asked whether he was a
supervisor in numerous projects such as the Shea Lake job, the Birmingham
Thunderbolts job, the Shea house job, and the Maryland job. (Id. at 82–83, 97, 105,
106.) Larry each time responded that he was doing the actual work and not
performing a supervisory role. (Id.) Essentially, Larry’s trial testimony is that
between 2015 and 2017, he never hired his own crews or functioned in a supervisory
capacity but did manual labor only. This position is in direct conflict with his
submitted affidavit which says, “I ran my own job sites as a superintendent. I did my
own payroll, hired employees for the job and performed all the duties of a
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superintendent.” (Doc. 102–1 at 8). It also conflicts with his deposition testimony in
which he says that he was rehired for the Maryland job as a superintendent. (Doc.
76–7 at 309:23–310:1–15.)
The Eleventh Circuit has found that the mere amending of a complaint alone
is not an inconsistency that warrants the application of judicial estoppel. Smith v.
Haynes & Haynes P.C., 940 F.3d 635, 647 (11th Cir. 2019). In Smith, the district court
applied judicial estoppel after Smith amended her complaint and changed her
position as to when she became aware of an overtime claim against the defendants.
Id. The district court applied judicial estoppel based on an inference from Burnes and
Barger v. City of Cartersville, 348 F.3d 1289 (11th Cir. 2003). Smith, 940 F.3d at 647.
At the time, Burnes and Barger permitted the inference that a party’s taking of
inconsistent positions meant that the party intended to manipulate the judicial
system. Id. The Eleventh Circuit reversed the application of judicial estoppel and
remanded that issue back to the district court because district courts are now
required to “consider the totality of the facts and circumstances of the case to
determine whether a plaintiff intended to make a mockery of the judicial system.”
Id. The Eleventh Circuit also noted in dicta that prior inconsistent statements are
usually matters for impeachment that add to the adversarial process. Id. at 647–48.

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However, Plaintiffs have not offered just a simple prior inconsistent statement
but mountains of them. As explained above, Plaintiffs consistently misrepresented
facts to gain an advantage in this litigation. When needed for the summary judgment
stage, Larry was allegedly a supervisor, evidence this Court relied upon in deciding
the motion for summary judgment. Then, when needed for trial, Larry was allegedly
not a supervisor. This contradiction goes far beyond a prior inconsistent statement
that can be used for impeachment. Instead, this is a blatant adulteration of the facts
which was intended to and did mislead this Court at the summary judgment stage.
See New Hampshire, 532 U.S. at 750–51. This testimony was presented despite
multiple warnings by the Court at the time the testimony was being presented to the
jury. The adversarial process is in no way benefitted by Plaintiffs being allowed to
abuse the Court. Considering the totality of the facts and circumstances in this case,
the Court concludes that Plaintiffs Chester and Larry intended to make a mockery
of the judicial system. See Smith, 940 F.3d at 647.
Indeed, should Plaintiffs appeal this Court’s grant of summary judgment on
the discrimination claims (Doc. 124) and succeed, would they then inconceivably be
allowed to present to a jury that Larry actually was a supervisor? Estoppel is
appropriate at this juncture to prevent Plaintiffs from arguing on appeal that Larry
was a superintendent for the purposes of their discrimination claims. The Court
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recognizes that parties may pursue different and conflicting legal theories
throughout litigation. However, what parties are not permitted to do is to change the
evidence and facts of the case as it suits them to increase their chances of prevailing
on a specific claim that was then under consideration, which appears to be what
occurred in this case.
Plaintiffs’ counsel retained counsel for themselves prior to responding to
MSB’s reply to the show cause order. The retained counsel wrote that:
Plaintiff’s claims that he performed the duties of a superintendent and
that he was not exempt under the FLSA are not inherently
contradictory. In fact, there is an entire genre of “working supervisor”
cases in which supervisors have been found to be non-exempt because
management – although among their duties – was not their “primary
duty.” See, e.g., Morgan v. Family Dollar Stores, 551 F.3d 1253 (11th Cir.
2008), cert. denied, 558 U.S. 816 (2009) (managers not exempt under
the FLSA because manual labor was their “primary duty”); Carr v.
Autozoner, LLC, 2020 U.S. Dist. LEXIS 72742 (N.D. Ala. 2020) (store
managers not exempt under FLSA because non-managerial tasks were
their primary duty).

(Doc. 176 at 4.) To be clear, Plaintiffs’ counsel was certainly free to argue that Larry
was a working supervisor or that his primary duties weren’t managerial. However,
what they are not permitted to do is change the facts to suit their needs. In the
declaration submitted in opposition to summary judgment, Larry testified that, “I
ran my own job sites as a superintendent. I did my own payroll, hired employees for
the job and performed all the duties of a superintendent.” (Doc. 102–1 at 8). Yet, at
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trial, Larry was asked whether he himself could hire and fire from 2015 to 2017 to
which he responded “[n]o.” (Doc. 163–4 at 129.) As mentioned above, Larry’s trial
testimony was that between 2015 and 2017, he never hired his own crews or
functioned in a supervisory capacity (Id. at 82–83, 97, 105, 106.) It appears that Larry
completely changed his testimony in an attempt to mislead this Court and the jury
to succeed on his FLSA claim.
In sum, it is inappropriate that Plaintiffs Larry and Chester represented the
facts one way at summary judgment and, when they lost that argument, altered the
facts and evidence in an effort to succeed on a different claim at trial. The Plaintiffs’
position at summary judgment, that Larry was a supervisor, or superintendent who
performed all the duties of such a position, was clearly inconsistent with Larry’s
claim for relief under the FLSA. This Court noticed the inconsistency when
considering Defendants’ motion for summary judgment. However, Defendants did
not sufficiently present the FLSA issue for the Court to grant a judgment on this
claim at the dispositive motion stage. While this Court wondered how Plaintiffs
would survive a motion for judgment as a matter of law during the trial, it was

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shocked when it became apparent that the witnesses would simply change their
testimony. This cannot be permitted.
III.

CONCLUSION
For the reasons discussed above, judicial estoppel is due to be applied to Larry

and Chester’s claims.3 Accordingly, in addition to the grant of summary judgment
on Counts II–XXII (Doc. 124), Larry and Chester’s claims4 are also due to be
DISMISSED WITH PREJUDICE based upon judicial estoppel. Due to the jury
verdict and the application of judicial estoppel, Larry’s FLSA claim, Count I, is due
to be DISMISSED WITH PREJUDICE. An Order consistent with this
Memorandum of Opinion will be entered contemporaneously herewith.
DONE and ORDERED on September 27, 2021.

_____________________________
L. Scott Coogler
United States District Judge
206770

The Court chooses not to apply judicial estoppel to Freddie’s claims as he did not testify.
Accordingly, the grant of summary judgment as to his claims does not change.
4
Chester’s deposition and declarations were clearly inconsistent, warranting the application of
judicial estoppel as another reason to dismiss all of his clams with prejudice. In addition, his
testimony at Larry’s trial on the FLSA claim also demonstrates that judicial estoppel should
apply. At trial, Chester changed his testimony in an attempt to perpetuate fraud upon the Court
with regard to Larry’s claim. It would be inappropriate for Chester to participate in a scheme to
defraud this Court and then be allowed to continue in litigation with the court he intentionally
misled.
3

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