Myers v. Critter Control, Inc. et al
ORDER granting 22 Critter Control's Motion for Summary Judgment; granting in part and denying in part 28 plaintiff's Motion for Summary Judgment. Signed by Magistrate Judge Katherine P. Nelson on 12/6/2012. (srr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
MICHAEL W. MYERS,
CRITTER CONTROL, INC., et al.,
) CIVIL ACTION NO. 12-0015-N
Plaintiff filed this FLSA action on January 12, 2012 (doc. 1) alleging that he had
not been properly paid for overtime. This action is before the court on two motions: a
Motion for Summary Judgment (doc. 22) filed by defendant Critter Control, Inc., with
accompanying brief (doc. 23), evidentiary submissions (doc. 24), proposed findings of
fact (doc. 25) and proposed order (doc. 26), to which plaintiff has not responded, and a
Motion for Summary Judgment (doc. 28) filed by plaintiff against defendants Critter
Control of the Gulf Coast, LLC and Van Normand, together with plaintiff’s brief (doc.
29) and affidavit (doc. 31), defendants’ Response (doc. 32) and plaintiffs’ Reply (doc.
34). The parties have consented to the exercise of jurisdiction by a Magistrate Judge
(docs. 9, 15) and this matter has been referred to the undersigned to conduct all
proceedings and enter judgment pursuant to 28 U.S.C. §636.
Summary Judgment Standard
Summary judgment should be granted “if the movant shows that 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). If a party asserts “that a fact cannot be or is genuinely
disputed”, the party must:
(A) cit[e] to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the motion
only), admissions, interrogatory answers, or other materials; or
(B) show that the materials cited do not establish the absence or presence
of a genuine dispute, or that an adverse party cannot produce admissible
evidence to support the fact.
Fed. R. Civ. P. 56(c)(1)(A)&(B).
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). Also, the party seeking summary judgment “always bears the initial responsibility
of informing the district court of the basis for its motion, and identifying those portions of
‘the pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue
of material fact.” Clark, 929 F.2d at 608 (quoting Celotex Corp. v. Catrett, 477 U.S. 317,
Where summary judgment is sought with regard to
issues on which the movant would bear the burden of proof at trial, that
party must show affirmatively the absence of a genuine issue of material
fact: it must support its motion with credible evidence ... that would entitle
it to a directed verdict if not controverted at trial. In other words, the
moving party must show that, on all the essential elements of its case on
which it bears the burden of proof at trial, no reasonable jury could find for
the non-moving party. If the moving party makes such an affirmative
showing, it is entitled to summary judgment unless the non-moving party,
in response, come[s] forward with significant, probative evidence
demonstrating the existence of a triable issue of fact.
U.S. v. Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir. 1991) (en banc)
(citations and internal quotation marks omitted; emphasis in original).
Once the moving party has satisfied its responsibility, the burden shifts to the nonmovant to show the existence of a genuine issue of material fact. Id. “In reviewing
whether the nonmoving party has met its burden, the court must stop short of weighing
the evidence and making credibility determination of the truth of the matter. Instead, the
evidence of the non-movant is to be believed, and all justifiable inferences are to be
drawn in his favor.” Tipton v.Bergrohr GMBH-Siegen, 965 F.2d 994, 999 (11th Cir.
1992) (citing Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986)); Adickes v. S.H.
Kress & Co., 398 U.S. 144, 158-159 (1970). Overall, the Court must “resolve all issues of
material fact in favor of the [non-movant], and then determine the legal question of
whether the [movant] is entitled to judgment as a matter of law under that version of the
facts.” McDowell v. Brown, 392 F.3d 1283, 1288 (11th Cir. 2004) (citing Durruthy v.
Pastor, 351 F.3d 1080, 1084 (11th Cir. 2003)). However, “A court need not permit a case
to go to a jury, [ ] when the inferences that are drawn from the evidence, and upon which
the non-movant relies, are ‘implausible.’” Cuesta v. School Bd. of Miami-Dade County,
285 F.3d 962, 970 (11th Cir.2002) (citations omitted). Additionally, “[a] moving party is
entitled to summary judgment if the nonmoving party has ‘failed to make a sufficient
showing on an essential element of her case with respect to which she has the burden of
proof.’” In re Walker, 48 F. 3d 1161, 1163 (11th Cir. 1995) (quoting Celotex, 477 U.S. at
Motion of Critter Control, Inc. (doc. 22)
Defendant Critter Control, Inc. filed its motion for summary judgment on the
basis that it was not plaintiff’s employer and did not exercise control over the personnel
or time-keeping practices of its franchisees; defendant states that it was merely the
franchisor through which plaintiff’s employer had obtained its franchise. Defendant
submitted evidence supporting this understanding of its relationship to plaintiff and the
other defendants. As noted above, plaintiff has not filed a response and has not otherwise
challenged those factual assertions or the corporation’s right to summary judgment.1
Upon review of the record, including particularly the Declaration of Kevin Clark
(exhibit A to doc. 24), the court finds that defendant Critter Control, Inc., was not the
employer of the plaintiff and is not liable to plaintiff under the Fair Labor Standards Act.
For that reason, the motion (doc. 22) of defendant Critter Control, Inc. is due to be
granted and judgment entered in favor of this defendant.
Plaintiff’s Motion (doc. 28)
Plaintiff seeks summary judgment against defendants Critter Control of the Gulf
Coast LLC and Van Normand on both liability and damages. With regard to the issue of
damages, the court finds that there exist genuine issue of material fact precluding
summary judgment: specifically, plaintiff’s own affidavit offered in support of his
summary judgment motion states
The court has been notified that plaintiff does not oppose dismissal of this
defendant, but that counsel felt that they could not easily request voluntary dismissal of
the claim against the corporation due to the requirement of the FLSA that the court must
approve any settlement.
8. I rarely took a one hour meal break or interrupted meal break while
employed by Critter Control. On most days, I took a break of less than 20
minutes, or ate while working and did not take a break at all. When I did
take a lunch break, it was rarely for more than 30 minutes.
Doc. 28-1, exhibit 1 at 2 (emphasis added). Plaintiff nonetheless calculates the
value of his overtime claim based on 5 hours of unpaid overtime per week,
reflecting one full uncompensated hour allegedly worked for each of five days
every week of his employment with Critter Control. Id. at ¶17. Plaintiff’s own
affidavit testimony contradicts his claimed hours; even if plaintiff might try to
explain this apparent contradiction on the basis that he often worked more than
five days per week,2 the plaintiff’s calculations do not demonstrate that they take
into account either that fact or the fact that he sometimes took all or part of his
lunch break. Regardless, for purposes of the instant motion, the accuracy of
plaintiff’s estimate does not appear so clearly that plaintiff can be said to have
“show[n] affirmatively the absence of a genuine issue of material fact,” Four
Parcels, at 1438 (emphasis original), concerning the amount of damages to which
he would be entitled if he prevails. Accordingly, summary judgment is not
available to plaintiff on the issue of damages.
The parties’ dispute over liability revolves around the daily automatic deduction
of one hour for a lunch break. Plaintiff worked between 40 and 70 hours per week;
defendants had no general rule against working overtime. Plaintiff offers evidence that
he told his supervisors on a few occasions that he sometimes worked through lunch; he
It is not apparent from the record whether defendants’ automatic lunch break
was imposed on weekends.
also offers evidence that he entered some of the time he worked during lunch breaks on
his timecard. Doc. 28-1. Defendants acknowledge that they were aware that plaintiff
sometimes worked through lunch, but that plaintiff was repeatedly counseled on the
procedure he was supposed to follow3 to be paid for that time, and indeed had enforced
that provision on other employees. Doc. 32 at 7, 9. Taking the evidence in the light most
favorable to the nonmovant,4 plaintiff knew of the procedure set by defendant for
employees to be paid for hours worked during the lunch hour but that he never followed
that procedure. See doc. 32. Defendants thus had actual knowledge of some of those
occasions and the extra time worked, but did not compensate plaintiff for that time.
The parties take contradictory positions on the propriety under the FLSA of an
employer’s policy of automatically deducting an hour for lunch, as that policy was
applied by defendants. Plaintiff cites 29 C.F.R. §785.13, which states:
In all such cases [of rules against unwanted overtime work] it is the duty
of the management to exercise its control and see that the work is not
performed if it does not want it to be performed. It cannot sit back and
accept the benefits without compensating for them. The mere
promulgation of a rule against such work is not enough. Management has
the power to enforce the rule and must make every effort to do so.
Defendants cite Frye v. Baptist Meml. Hosp., Inc., 2010 WL 3862591, *5
(W.D.Tenn.)5 for the proposition that FLSA does not ban automatic deductions of time
for meal breaks as long as there is a policy which allows an employee to be compensated
if lunch is interrupted. Doc. 32 at 7. Defendants attribute the following quote to the Frye
case: “Employers utilizing an automatic meal deduction policy may legally shift the
Defendant’s procedure was that time worked during the lunch hour would be
paid if requested and approved by his supervisor prior to the performance of the work.
In his Reply (doc. 32), plaintiff acknowledges that the
In their brief, defendants left out one digit from the Westlaw citation.
burden to their employees to cancel the automatic deduction if they work through an
unpaid meal break.” That language appears nowhere in the Frye opinion. However, Frye
does address the issue of meal break deductions, and holds that
[s]tanding alone, an employer policy providing automatic deductions for
meal breaks does not violate the FLSA. See, e.g., Fengler v. Crouse Health
Found., Inc., 595 F.Supp.2d 189, 195 (N.D.N.Y 2009); see also Wage and
Hour Div., U.S. Dep't of Labor Fact Sheet No. 53, The Health Care
Industry and Hours Worked (July 2009), ECF No. 373–16 (“Dep’t of
Labor Fact Sheet”) (recognizing that the FLSA permits automatic
Id. at *5. It also holds that “[a] natural consequence of any employers’ adopting an
automatic deduction policy is that employees will be required to cancel the deduction if
they work through meal breaks.” Id. at *7. The court then discussed the plaintiff’s
arguments that defendant had done too little to enforce its meal-break policy. Id.
The Frye decision focused on the named plaintiff’s ability to represent a putative
class. The court addressed the automatic deduction issue as part of its analysis of
whether the policy constituted a “unified policy of FLSA violations capable of binding
the Plaintiffs together.” Id. A few other cases have more directly addressed the issue of
an employer’s duties where it enacts an automatic meal deduction policy. Frye cites
Fengler v. Crouse Health Found., Inc., 595 F.Supp.2d 189, 195 (N.D.N.Y 2009); see also
Hill v. United States, 751 F.2d 810 (6th Cir. 1984)(upholding automatic deduction); Hertz
v. Woodbury County, 566 F.3d 775 (8th Cir. 2009)(similar analysis for claims of unpaid
work during meal break and other unpaid overtime claims). In addition, the Sixth Circuit
recently addressed automatic meal break deductions in the context of an appeal from a
grant of summary judgment for defendant and a decertification of the plaintiff class. See
White v. Baptist Meml. Health Care Corp., --- F.3d ---, 2012 WL 5392621 (6th Cir. Nov.
In each of these cases, the courts recognized that an employer could shift to the
employee some of the burden for assuring payment for hours worked. See e.g. White, at
*2-*3. It is also established that, “[i]f an ‘employer knows or has reason to believe that
[a worker] is continuing to work [then]the time is working time.’” White, at 2, quoting
29 C.F.R. §785.11. An employee’s failure to use the employer’s procedures for reporting
overtime work, such as plaintiff’s alleged work during meal-breaks, may preclude a
showing that the employer should have known about the time, there is no question that
the FLSA requires that the employee be paid for time that does come to the employer’s
actual or constructive notice. See White, at *4-*5. “[A]n employee must show that the
employer knew or should have known6 that he was working overtime or, better yet, he
should report the overtime hours himself. Either way, the employee bears some
responsibility for the proper implementation of the FLSA’s overtime provisions.” Id., at
*5 (quoting Wood. v. Mid-America Mgmt. Corp., 192 Fed. Appx. 378, 381 (6th Cir.
As noted, plaintiff submitted some of the time he claims to have worked on his
time sheet; defendant clearly received actual notice of the exact amount of this time
worked. Defendant argues—and offers evidence—that plaintiff did not comply with
Plaintiff’s complaints to supervisory and management personnel may have
provided defendant with notice of additional time worked. The cited cases contain
discussion of “constructive notice,” particularly with respect to unreported time, which
the parties should consider in preparing this action for trial or for potential settlement.
See White at *3-*4. The court also notes that the fact that plaintiff expressly notified
defendants of some of the work he now claims may affect defendants’ constructive
notice. See Hertz at 784.
defendants’ procedure for obtaining permission to work during meal breaks. See doc. 30
at ¶11. This does not alter defendants’ duty to pay plaintiff for this time of which it
received actual notice, whether or not plaintiff could have been disciplined for failing to
follow a work-place rule on the manner in which he was to submit such work.7
Defendant does not contest that it did not pay plaintiff for the time so submitted.
To that limited extent, the plaintiff has established that he is entitled to summary
judgment on the issue of liability.8 However, plaintiff has failed to demonstrate that
summary judgment is appropriate on liability or damages for any other aspect of his
For the foregoing reasons, it is hereby ORDERED that the motion of defendant
Critter Control, Inc. for summary judgment is GRANTED. A separate Judgment shall
enter in favor of the corporate defendant. It is further ORDERED that the motion of
plaintiff for summary judgment is GRANTED in part and DENIED in part, as follows:
plaintiff is entitled to summary judgment solely on the issue of the two remaining
defendants, for failure to pay him for hours worked during his lunch break which he
actually submitted to his employer in a contemporaneous time sheet; however, plaintiff
has failed to prove the amount of damages related to such time entries and has failed to
demonstrate entitlement to summary judgment on any other aspect of his claims.
It is not clear why the defendants imposed a policy requiring preauthorization, as
opposed to a simple post-work time entry, for work performed during the lunch break
when overtime was regularly paid for work performed at other times.
The record before the court does not appear to contain such time-sheet entries
by plaintiff; the court thus can not determine the amount of time for which he was owed.
The parties are reminded that this case is set for final pretrial conference before
the undersigned on January 18, 2013, with jury selection on February 5, 2013. Pretrial
documents are due no later than December 28, 2012. See Doc. 13.
DONE this the 6th day of December, 2012.
/s/ Katherine P. Nelson
UNITED STATES MAGISTRATE JUDGE
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