Smith et al v. Werner Enterprises, Inc.

Filing 119

Order denying the 86 & 93 Motions for Partial Summary Judgment as to the issues of willfulness and liquidated damages. Signed by Chief Judge William H. Steele on 7/21/2015. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CORNELIUS SMITH, et al.,
Plaintiffs,
v.
WERNER ENTERPRISES, INC.,
Defendant.

)
)
)
)
) CIVIL ACTION 14-0107-WS-B
)
)
)
)
ORDER

This matter is before the Court on the parties’ motions for partial summary
judgment. (Docs. 86, 93). The parties have filed briefs and evidentiary materials
in support of their respective positions, (Docs. 87-89, 94-95, 99-100, 107-08), and
the motions are ripe for resolution. This order addresses only the issues of the
willfulness and liquidated damages. After careful consideration, the Court
concludes that the motions as to these issues are due to be denied.
BACKGROUND
This is the second FLSA action brought by plaintiffs employed by the
defendant to provide certain trucking services to a non-party (“Boise”) that
operates a paper mill in Jackson, Alabama. See Pritchett v. Werner Enterprises,
Inc., Civil Action No. 12-0182-WS-C. In Pritchett, the parties filed competing
motions for summary judgment concerning the statute of limitations and liquidated
damages, which the Court denied after finding genuine issues of material fact.
(Id., Doc. 106).

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).
“When the moving party has 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. [citation omitted] 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, no reasonable jury could find for the nonmoving party.” United States v.
Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir. 1991) (en banc)
(emphasis in original); accord Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115
(11th Cir. 1993).
“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, 2 F.3d at 1116; 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
2

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 ….”).
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. Willfulness.
“[E]very such action shall be forever barred unless commenced within two
years after the cause of action accrued, except that a cause of action arising out of
1

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.”). “[A]ppellate judges are not like pigs, hunting for truffles buried in briefs,” and
“[l]ikewise, district court judges are not required to ferret out delectable facts buried in a
massive record ….” Chavez v. Secretary, Florida Department of Corrections, 647 F.3d
1057, 1061 (11th Cir. 2011) (internal quotes omitted).

3

a willful violation may be commenced within three years after the cause of action
accrued ….” 29 U.S.C. § 255(a). The plaintiff moves for summary judgment as
to this issue. (Doc. 93 at 1).
“To establish that the violation of the Act was willful in order to extend the
limitations period, the employee must prove by a preponderance of the evidence
that his employer either knew that its conduct was prohibited by the statute or
showed reckless disregard about whether it was.” Alvarez Perez v. SanfordOrlando Kennel Club, Inc., 515 F.3d 1150, 1162-63 (11th Cir. 2008). “The Code
of Federal Regulations defines reckless disregard as the ‘failure to make adequate
inquiry into whether conduct is in compliance with the Act.’” Id. (quoting 5
C.F.R. § 551.104); accord Davila v. Menendez, 717 F.3d 1179, 1185 (11th Cir.
2013) (an employer acts with reckless disregard “‘if the employer should have
inquired further into whether [its] conduct was in compliance with the Act, and
failed to make adequate further inquiry.’”) (quoting 29 C.F.R. § 578.3(c)(3)).
According to the defendant, a violation is not willful when “the employer
relies on advice of counsel.” (Doc. 99 at 18-19).2 Among the requirements for
successful reliance on advice of counsel is that the client “supply [counsel] with
all of the information needed to arrive at an informed opinion on the subject.”
Alvarez Perez, 515 F.3d at 1168. The Court agrees with the plaintiffs that the
testimony of the defendant’s witnesses concerning the solicitation and receipt of
legal advice is sufficiently vague, porous and contradictory that a jury would be
justified in finding that the defendant did not supply counsel with all the
information needed to arrive at an informed opinion as to whether the drivers on
2

Cutting and pasting from its brief in Pritchett, the defendant also says a violation
is not willful when “case law is unclear” or when the employer relies on an industry
standard. (Doc. 99 at 18-19). These sweeping statements are as insupportably overbroad
today as they were two years ago, for reasons the Court has explained. (Pritchett, Doc.
106 at 9-11). Since the defendant does not advance these propositions as bases for
denying the plaintiffs’ motion, (Doc. 99 at 19-20), the Court need not consider them
further.

4

the Boise contract could lawfully be paid no overtime.3 But the Court disagrees
that this evidence so strongly supports the plaintiffs that no properly functioning
jury could fail to find willfulness under the governing standard. Accordingly, their
motion for summary judgment as to willfulness is due to be denied.
II. Liquidated Damages.
“Any employer who violates the provisions of … section 207 of this title
shall be liable to the employee or employees affected in the amount of their …
unpaid overtime compensation … and in an additional equal amount as liquidated
damages.” 29 U.S.C. § 216(b). Thus, “[w]hen the jury finds an employer has
violated the overtime provision of the FLSA and assesses compensatory damages,
the district court generally must add an award of liquidated damages in the same
amount ….” Alvarez Perez, 515 F.3d at 1163. The parties both seek summary
judgment as to this issue. (Doc. 86 at 1; Doc. 93 at 1).
[I]f the employer shows to the satisfaction of the court that
the act or omission giving rise to such action was in good faith and
that he had reasonable grounds for believing that his act or omission
was not a violation of the [FLSA], the court may, in its sound discretion,
award no liquidated damages or award any amount thereof not to exceed
the amount specified in section 216 of this title.
29 U.S.C. § 260. “The employer bears the burden of establishing both the
subjective and objective components of that good faith defense against liquidated
damages.” Alvarez Perez, 515 F.3d at 1163.4
3

A properly functioning jury could also find that the defendant did not seek, and
did not receive, any opinion that the Boise drivers were not covered by the FLSA or were
exempt from its overtime requirements.
4

A determination that the employer acted willfully precludes a finding that the
employer acted in good faith so as to potentially escape liability for liquidated damages.
Davila, 717 F.3d at 1186. Because the defendant’s willfulness remains an open question,
the Court cannot rely on this rule to resolve the liquidated damages issue. But neither
must the Court await the jury’s ruling on willfulness before resolving the parties’ motions
for summary judgment as to liquidated damages because, since “the burden of proof is
5

“To satisfy the subjective ‘good faith’ component, the employer has the
burden of proving that it had an honest intention to ascertain what the Act requires
and to act in accordance with it.” Davila, 717 F.3d at 1186 (internal quotes
omitted). “Apathetic ignorance is never the basis of a reasonable belief,” and the
objective component of the defense thus “requires some duty to investigate
potential liability under the FLSA.” Barcellona v. Tiffany English Pub, Inc., 597
F.2d 464, 469 (5th Cir. 1979).
The defendant again relies on advice of counsel. (Doc. 99 at 22-23). As
the Court has previously held, “[j]ust as failure to provide counsel the relevant
facts can support a finding of willfulness, it may also reflect an inadequate
investigation for purposes of objective good faith.”5 As discussed in Part I, the
evidence would not compel a properly functioning jury to find that the defendant
provided counsel the relevant facts and obtained a considered, legally relevant
opinion concerning the lawfulness of not paying the Boise drivers overtime. The
defendant’s motion for summary judgment must thus be denied. But, as also
indicated in Part I, a properly functioning jury would be justified in finding for the
defendant on these points. Thus, the plaintiffs’ motion for summary judgment
must also be denied.
CONCLUSION
For the reasons set forth above, the motions of the plaintiffs and the
defendant for summary judgment as to the issues of willfulness and liquidated
damages are denied.
DONE and ORDERED this 21st day of July, 2015.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE
placed differently …, a finding that willfulness was not present may co-exist peacefully
with a finding that good faith was not present.” Id. (internal quotes omitted).
5

(Pritchett, Doc. 106 at 13).
6