Clark v. Northview Health Services, L.L.C. et al

Filing 49

ORDER finding as moot 46 Motion to Strike ; denying 26 Motion for Summary Judgment. Signed by Chief Judge William H. Steele on 3/4/2013. (sdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ASHLEE CLARK,
Plaintiff,
v.
NORTHVIEW HEALTH SERVICES,
LLC, et al.,
Defendants.

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) CIVIL ACTION 11-0664-WS-N
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ORDER
This matter is before the Court on the defendants’ motion for summary judgment.
(Doc. 26). The parties have filed briefs and evidentiary materials in support of their
respective positions, (Docs. 27-28, 31-32, 44-45), and the motion is ripe for resolution.
After careful consideration, the Court concludes that the motion is due to be denied.
BACKGROUND
According to the complaint, the plaintiff was employed by defendant Northview
Health Services, LLC (“Northview”). Defendant Lillian Knox acted in the interest of
Northview. Count One alleges that the defendants violated the straight time, overtime
and record keeping requirements of the Fair Labor Standards Act (“FLSA”). Count Two
alleges that Northview breached its contract with the plaintiff concerning pay. Count
Three seeks a declaration that the plaintiff is entitled to receive overtime compensation
under the FLSA. (Doc. 1).
The defendants argue that the plaintiff has no evidence that she worked unpaid
overtime hours of which they knew or should have known. They also argue that the
plaintiff has no evidence that they did not pay her for all mileage incurred in carrying out
her on-the-job responsibilities. (Doc. 26 at 1).

DISCUSSION
Summary judgment should be granted only if “there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). The party seeking summary judgment bears “the initial burden to show the
district court, by reference to materials on file, that there are no genuine issues of material
fact that should be decided at trial.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608
(11th Cir. 1991). The moving party may meet its burden in either of two ways: (1) by
“negating an element of the non-moving party’s claim”; or (2) by “point[ing] to materials
on file that demonstrate that the party bearing the burden of proof at trial will not be able
to meet that burden.” Id. “Even after Celotex it is never enough simply to state that the
non-moving party cannot meet its burden at trial.” Id.; accord Mullins v. Crowell, 228
F.3d 1305, 1313 (11th Cir. 2000); Sammons v. Taylor, 967 F.2d 1533, 1538 (11th Cir.
1992).
“If the party moving for summary judgment fails to discharge the initial burden,
then the motion must be denied and the court need not consider what, if any, showing the
non-movant has made.” Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116 (11th Cir.
1993); accord Mullins, 228 F.3d at 1313; Clark, 929 F.2d at 608.
“If, however, the movant carries the initial summary judgment burden ..., the
responsibility then devolves upon the non-movant to show the existence of a genuine
issue of material fact.” Fitzpatrick, 2 F.3d at 1116. “If the nonmoving party fails to
make ‘a sufficient showing on an essential element of her case with respect to which she
has the burden of proof,’ the moving party is entitled to summary judgment.” Clark, 929
F.2d at 608 (quoting Celotex Corp. v. Catrett, 477 U.S. 317 (1986)) (footnote omitted);
see also Fed. R. Civ. P. 56(e)(2) (“If a party fails to properly support an assertion of fact
or fails to properly address another party’s assertion of fact as required by Rule 56(c), the
court may … consider the fact undisputed for purposes of the motion ….”).

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In deciding a motion for summary judgment, “[t]he evidence, and all reasonable
inferences, must be viewed in the light most favorable to the nonmovant ….”
McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003).
There is no burden on the Court to identify unreferenced evidence supporting a
party’s position.1 Accordingly, the Court limits its review to the exhibits, and to the
specific portions of the exhibits, to which the parties have expressly cited. Likewise,
“[t]here is no burden upon the district court to distill every potential argument that could
be made based upon the materials before it on summary judgment,” Resolution Trust
Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995), and the Court accordingly
limits its review to those arguments the parties have expressly advanced.
I. FLSA Claim.
“Under the FLSA, an employer may not employ his employee for a workweek
longer than forty hours unless his employee receives overtime compensation at a rate not
less than one and a half times his regular rate.” Allen v. Board of Public Education, 495
F.3d 1306, 1314 (11th Cir. 2007) (citing 15 U.S.C. § 207(a)(1)). “[I]f the employer
knows or has reason to believe that the employee continues to work, the additional hours
must be counted.” Id. (internal quotes omitted). To recover, “a FLSA plaintiff must
demonstrate that (1) he or she worked overtime without compensation and (2) the
[employer] knew or should have known of the overtime work.” Id. at 1314-15.
A. Uncompensated Overtime Hours.
The plaintiff worked as a compassionate care facilitator at the defendants’ group
home. Her primary complaint is that she was not paid for overtime hours she worked in

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Fed. R. Civ. P. 56(c)(3) (“The court need consider only the cited materials, but it may
consider other materials in the record.”); accord Adler v. Wal-Mart Stores, Inc., 144 F.3d 664,
672 (10th Cir. 1998) (“The district court has discretion to go beyond the referenced portions of
these [summary judgment] materials, but is not required to do so.”).
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August and September 2011.2 During that nine-week period, about two days a week the
plaintiff worked a split shift, which means she worked a morning shift, was off for about
two hours, then worked an afternoon/evening shift. Since the plaintiff did not go home
during her break between shifts, Knox instructed her to perform tasks such as grocery
shopping for residents, picking them up from school, picking up their medical supplies,
processing paperwork, and calling employees to come to meetings. The plaintiff
estimates she spent an average of 2.5 hours a week performing these tasks off the clock,
for which she was not paid. (Clark Affidavit at 1-3).
The plaintiff’s submitted time records reflect that, for the six work weeks
beginning August 8 and ending September 17, the plaintiff worked more than 40 hours a
week even without these extra hours. Thus, the extra hours would qualify for overtime
compensation. For the week September 18-24, the plaintiff’s time records reflect 39.5
hours worked, so that a portion of her extra hours that week would qualify for overtime
compensation. (Doc. 31, Exhibit 6).3
The evidence summarized in the preceding two paragraphs creates a genuine issue
of material fact as to whether the plaintiff worked overtime hours without compensation.
In opposition to this conclusion, the defendants assert that, because the time
records the plaintiff submitted to Northview do not include the claimed extra hours, she
could not have worked them. (Doc. 27 at 8). The plaintiff’s explanation is that Knox
told her this work was “unauthorized overtime,” for which she would not be paid and

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The plaintiff also seeks recovery of straight time and/or overtime with respect to her
first two days of employment; her attendance at mandatory monthly meetings; and her
attendance at a class (and follow-up demonstrations) put on by Northview to achieve
certification to administer medications. (Doc. 32 at 4; Clark Affidavit at 3-4). The defendants
do not address these components of the plaintiff’s claim and therefore cannot obtain summary
judgment as to them.
3

The plaintiff has submitted no time records for the period August 1-7. Her time records
for September 25 – October 1 reflect only 35 hours worked, (Doc. 31, Exhibit 6 at 9-10), so the
extra hours that week probably would not qualify for overtime compensation.
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which was therefore unauthorized to be included by the plaintiff on her time sheets.
(Clark Deposition at 81-83; Clark Affidavit at 3).
In their reply brief, the defendants clarify their position as being that the
timesheets and wage statements contain “no discrepancies, inaccuracies, or
inconsistencies” and thus “must be considered an accurate representation of the wages
earned by the plaintiff.” (Doc. 44 at 2). The defendants rely on Allen for this
proposition, but the Eleventh Circuit ruled therein that, “in situations where the
employer’s records cannot be trusted,” an employee “carries its burden of proving that he
or she performed work without proper compensation if he or she produces sufficient
evidence to show the amount and extent of that work as a matter of just and reasonable
inference.” 495 F.3d at 1316. The plaintiff has certainly produced enough evidence to
meet this standard. This is all she need do because, when employees are “told not to
record their overtime hours because the [employer] would not pay them overtime,” such
facts “indicate that the [employer’s] records cannot be trusted,” id., enabling the plaintiff
to prove her claim by other means. Since there is evidence that Knox told the plaintiff
her off-duty work would be considered unauthorized overtime, prompting her not to
record those hours, the defendants cannot hide behind their records and thereby avoid
liability.
The defendants next object that the plaintiff has no records showing that Knox
called and sent text messages directing her to perform these tasks at times she was on
unpaid break, and she has no receipts or other documentation that she purchased food or
supplies while on break. (Doc. 27 at 9). The absence of corroborating physical evidence
to bolster the plaintiff’s sworn testimony cannot preclude that testimony from creating a
genuine issue of fact.
Finally, the defendants point out Northview’s policy, communicated to the
plaintiff, prohibiting the working of overtime hours without advance authorization. (Doc.
27 at 8, 9). To the extent the defendants intend to argue that, in light of this policy, the
plaintiff would not have worked the claimed extra hours, it is but jury argument. To the
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extent they suggest their prohibition of unauthorized overtime precludes a claim for
overtime, they are mistaken. “‘Work not requested but suffered or permitted is work
time.’” Reich v. Department of Conservation and Natural Resources, 28 F.3d 1076, 1082
(11th Cir. 1994) (quoting 29 C.F.R. § 785.11). Thus, “[t]he mere promulgation of a rule
against such [overtime] work is not enough.” 29 C.F.R. 785.13. Here, the plaintiff’s
evidence is that Knox herself instructed the plaintiff to perform the work and, as
discussed in the next section, Knox knew or had reason to know that such work would
constitute overtime hours. Nominally forbidding what an employer nevertheless directs
an employee to do cannot insulate the employer from FLSA liability.
B. Employer’s Knowledge of Overtime Work.
Knox is the owner of Northview. It was Knox who instructed the plaintiff to
perform work during her break. It was also Knox who created the plaintiff’s work
schedules. When the plaintiff asked to be paid for the work she was performing between
her shifts, Knox told her this work constituted unauthorized overtime. (Clark Affidavit at
1-3).
The foregoing constitutes evidence that Knox knew or should have known that the
plaintiff was performing overtime work between her shifts. Because Knox created the
plaintiff’s schedules, she knew the plaintiff was off duty during the time she was
requiring the plaintiff to work. For the same reason, she knew that the work between
shifts would constitute hours in excess of 40 for the workweek. Knox’s response to the
plaintiff’s request for payment confirms Knox’s awareness that this work constituted
overtime. Because Knox is Northview’s owner, her awareness is attributable to
Northview.
The defendants argue against actual or constructive knowledge on the grounds that
the plaintiff did not record the overtime hours on her time sheets and did not ask to be
compensated for such hours. (Doc. 27 at 10-11). Knox’s denial that the plaintiff
requested payment, (Knox Declaration at 2), is contradicted by the plaintiff’s testimony
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and thus cannot be credited on motion for summary judgment. And the plaintiff’s failure
to record the hours on her time sheets is irrelevant given the evidence that Knox
instructed her to perform the work and knew (and even admitted) that the work
represented overtime hours. The defendants insist that “[a]n employer does not have
knowledge of uncompensated overtime when an employee submits time sheets showing
such overtime did not occur,”4 but this is not an exceptionless rule, and it cannot be
applied when, as here, the employer had actual knowledge of the overtime hours from its
own involvement in their incurrence.5
Even ignoring the evidence of Knox’s actual knowledge, “when an employer’s
actions squelch truthful reports of overtime worked, or where the employer encourages
artificially low reporting, it cannot disclaim knowledge.” Allen, 495 F.3d at 1319; accord
Brennan v. General Motors Acceptance Corp., 482 F.2d 825, 828 (5th Cir. 1973) (“At the
very least [the plaintiffs’ supervisors] had constructive knowledge, for they had the
opportunity to get truthful overtime reports but opted to encourage artificially low
reporting instead.”). There is evidence of such squelching and encouragement, and it
precludes the defendants from effectively denying constructive knowledge.
II. Breach of Contract.
While the defendants nominally move for summary judgment as to “all claims,”
(Doc. 26 at 1), they address only the FLSA claim. (Id.; Doc. 27 at 7). Their briefing
asserts curtly that the plaintiff was paid for all mileage she submitted, (id. at 4), but the
plaintiff’s affidavit squarely contradicts that assertion, (Clark Affidavit at 4), creating a
genuine issue of material fact.

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Gaylord v. Miami-Dade County, 78 F. Supp. 2d 1320, 1325 (S.D. Fla. 1999).

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Gaylord has been repeatedly distinguished on this basis. See Brubach v. City of
Albuquerque, ___ F. Supp. 2d ___, 2012 WL 4466857 at *8 (D.N.M. 2012); Dudley v. All
Seasons Landscaping, Inc., 2011 WL 5358699 at *2 (M.D. Fla. 2011); Reyna v. ConAgra Foods,
Inc., 2006 WL 3667231 at *5 (M.D. Ga. 2006).
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CONCLUSION
For the reasons set forth above, the defendants’ motion for summary judgment is
denied.6
DONE and ORDERED this 4th day of March, 2013.

s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

6

Because the Court has not relied on any testimony save that of the plaintiff, the
defendants’ motion to strike the affidavits of the plaintiff’s witnesses, (Doc. 46), is denied as
moot.
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