Jones v. RK Enterprises of Blytheville Inc et al

Filing 47

ORDER based on the findings of fact and conclusions of law, Plaintiff is entitled $7,438.03 for back pay overtime wages and $7,438.03 for liquidated damages, for a total of $14,876.06. Since Defendants have already paid Plaintiff $7,000, Plaintiff is entitled to a judgment of $7,876.06 from Defendants. Signed by Judge Billy Roy Wilson on 4/15/2015. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
TRISTA JONES
VS.

PLAINTIFF
No. 3:13-CV-00252-BRW

RK ENTERPRISES OF
BLYTHEVILLE, INC., et al.

DEFENDANTS
ORDER

The parties presented evidence at a one-day bench trial on April 7, 2015. Post-trial briefs were
submitted the next day.1
I.

BACKGROUND
1. Plaintiff worked as the manager for Defendants’ hotel from January until December 2013,

which is the relevant time period for this case.
2. During 2013, Plaintiff’s compensation package included a salary of $1,500 a month and
free on-site housing.2
3. Plaintiff either quit or was fired on December 13, 2013, but returned to work on
December 17, 2013.
4. Plaintiff quit working for Defendant in January 2014, and worked at a different hotel from
January to September 2014.
5. Plaintiff was rehired by Defendant in January 2015.
6. Despite Plaintiff’s title as “manager,” she is not an exempt employee under the FLSA.
7. Since this litigation began, Defendants paid Plaintiff $7,000 in previously unpaid overtime
compensation, and the parties agree that $7,000 should be set off from Plaintiff’s damages.

1

Doc. Nos. 38, 39, 42, 45.

2

Plaintiff’s Trial Exhibit 3.
1

II.

DISCUSSION
A.

Overtime Compensation
1.

Plaintiff’s Compensation Package

Since Plaintiff’s compensation included free lodging, “the reasonable cost or the fair value of
the lodging (per week) must be added to the cash wages before the regular rate is determined.”3
Defendant testified that the lodging was valued at $18,000 a year, and Plaintiff did not dispute this
amount; so the lodging has a value of $1,500 a month. With lodging and salary, Plaintiff regular rate
is $3,000 a month, which is $750 a week.
2.

Plaintiff’s Hours

To determine the hourly rate, the $750 must be divided by the number of hours Plaintiff
worked, but there were no set hours. Defendant testified that because Plaintiff was the hotel manager
she might work “unlimited” hours, but he expected her to work 40 to 60 hours when they reached their
compensation agreement. Other evidence at trial also supported the fact that Plaintiff hours varied
weekly, based on demand. Accordingly, the “fluctuating work week method” will be used to
determine Plaintiff’s regular rate.4
“[W]hen an employee is, by agreement, paid a fixed weekly wage for hours that fluctuate from
week to week, the proper way to calculate the employee’s regular rate of pay is to divide the weekly
wage by the number of hours actually worked in a particular week.”5 Under this method, Plaintiff is
entitled to overtime of one-half the regular rate.6

3

29 C.F.R. § 778.116.

4

29 C.F.R. § 778.114.

5

Urnikis-Negro v. American Family Property Services, 616 F.3d 665, 674 (7th Cir. 2010)
(citing Overnight Motor Transp. Co. v. Missel, 316 U.S. 572 (1942)).
6

29 C.F.R. § 778.114 (“Payment for overtime hours at one-half such rate in addition to
the salary satisfies the overtime pay requirement because such hours have already been
2

Here, determining the number of weekly hours is difficult because Defendants did not keep
records of Plaintiff’s hours.7 Complicating the issue more are the inconsistencies within each side’s
testimony.
Plaintiff testified that she worked 65 hours of overtime per week from January to June 2013
and 32 hours of overtime per week from June to December 2013. However, in a December 12, 2013
interview statement to the Department of Labor, Plaintiff indicated that she worked an average of 32
hours of overtime per week.8 In a December 21, 2013 letter to the Department of Labor, Plaintiff
asserted that she worked 0-10 hours of overtime a week on average.9 Plaintiff’s estimations also
assume that she worked the same amount every week throughout the year and do not account for time
off. However, it is undisputed that Plaintiff was off, at a minimum, for several days in November and
December.
Defendants provided a much lower estimation of hours. In a response to interrogatories,
Defendants indicated that between January and March 2013, Plaintiff worked 10-15 hours of overtime
per week,10 and from April to December she worked 0-10 hours of overtime a week.11 However,

compensated at the straight time regular rate, under the salary arrangement.”).
7

When an employer fails to keep time records, an employee is “to be awarded
compensation on the most accurate basis possible.” Dole v. Tony and Susan Alamo Foundation,
915 F.2d 349, 351 (8th Cir. 1990). Though the burden is lessened, Plaintiff still is required to
“prove the existence of damages.” Carmody v. Kansas City Board of Police Commissioners, 713
F.3d 401, 407 (8th Cir. 2013).
8

Plaintiff’s Trial Exhibit 3. Plaintiff testified that she believed she was being asked how
much she currently worked. However, the document states that the relevant time frame was
“Jan. 2013 to present.”
9

Defendants’ Trial Exhibit F. I note that this document has reliability problems, since
Plaintiff testified she signed it under duress from Defendant.
10

Defendants asserted that Plaintiff worked 50-55 hours a week.

11

Plaintiff’s Trial Exhibit 1.
3

Defendant testified that Plaintiff worked 23 hours of overtime the first week in January and 12 hours
of overtime the last two weeks in January. The other monthly overtime totals were between 0 and 82
hours. Defendants’ numbers average to around 7 hours of overtime per week.
There are a few of problems with Defendants’ overtime estimations. First, Defendants did not
keep up with Plaintiff’s hours during the year, so the calculations were made in response to litigation.
Second, the hours are based on a reverse calculation of when other people were working, and assumes
there was never more than one person working the front desk. Third, there are dates missing in the
calculations and there was no explanation for this at trial. Finally, Defendants’ calculations were for
two-week intervals, but the FLSA requires that each workweek stand alone and “does not permit
averaging of hours over 2 or more weeks.”12
3.

The Court’s Calculations

According to Defendants’ numbers, Plaintiff worked 325.5 hours of overtime. Plaintiff claims
she worked 2,357 hours of overtime. That is a difference of 2,031.5 hours, and neither estimate is
reasonable.
Because there was no reliable evidence, I used the average of the estimates. For example, on
week one, Defendants estimated 16 hours of overtime and Plaintiff said 65 hours – the average of the
two is 40.5 hours. Since Plaintiff’s salary is $750, her regular rate for that week was $9.32,13 and she
is entitled to $188.73 of overtime wages.14 On dates where Defendant had no information, I assumed

12

29 C.F.R. § 778.104. Each week standing alone is necessary because an employee
might work 80 hours over a two week period, but if she worked 30 hours one week and 50 hours
the next week, she would be entitled to 10 hours of overtime.
13

$750 / 80.5 hours = $9.32.

14

$9.32 x .5 = 4.66 x 40.5 = $188.73.
4

that Plaintiff worked 8 hours. Based on these calculations for each of the 52 weeks in 2013 (see
attached spreadsheet), Plaintiff is entitled to overtime compensation of $7,438.03.
B.

Liquidated Damages

Plaintiff seeks liquidated damages., and, at trial, Defendants conceded that Plaintiff was
entitled to liquidated damages if she prevailed. Since Plaintiff was awarded $7,438.03 in unpaid
overtime wages, she is entitled to $7,438.03 in liquidated damages.15
C.

Retaliation Claim

Plaintiff conceded the retaliation claim, because there was “no testimony or evidence . . . that
Plaintiff actually lost wages for the four days in which she was off work.”16 Defendants contend that
it was at best a swearing match and there was no proof that Plaintiff lost wages or was kicked out of
the apartment.
D.

Punitive Damages

As I announced at the end of the trial on April 8, 2015, the evidence does not support a claim
for punitive damages (even assuming they are permitted under the FLSA).17
E.

Personal Liability

As I ruled at trial, the individual defendants are personally liable for damages.18

15

29 U.S.C. § 216(b).

16

Doc. No. 39 (emphasis in original).

17

See 22A Fed. Proc., L. Ed. § 52:1767 (“While there is authority that punitive damages
are available in an action under the FLSA for employer retaliation, the prevailing rule is that
punitive damages are not available in actions to enforce the FLSA, even in cases of employer
retaliation.”).
18

Darby v. Bratch, 287 F.3d 673, 681 (8th Cir. 2002) (“If an individual meets the
definition of employer as defined by the FMLA, then that person should be subject to liability in
his individual capacity.”).
5

CONCLUSION
Based on the findings of fact and conclusions of law above, Plaintiff is entitled $7,438.03 for
back pay overtime wages and $7,438.03 for liquidated damages, for a total of $14,876.06. Since
Defendants already have paid Plaintiff $7,000, Plaintiff is entitled to a judgment of $7,876.06 from
Defendants.
IT IS SO ORDERED this 15th day of April, 2015.

/s/ Billy Roy Wilson
UNITED STATES DISTRICT JUDGE

6

Defendants'
Hours
Estimate

Defendants'
Overtime
Estimate

Plaintiff's
Overtime
Estimate

Work Week Rate

Overtime Money
Owed

(Plaintiff's Estimate +
Defendants' Estimate) / 2

Date

$750 / (Court's
Hours + 40)

1/2 Work Week
Rate x Court's
Hours

Court's Hours Finding

1/3/2013
1/4/2013
1/5/2013
1/6/2013
1/7/2013
1/8/2013
1/9/2013

7
7
8
7
10
10
7
56

16

65

40.5

$9.32

$188.73

1/10/2013
1/11/2013
1/12/2013
1/13/2013
1/14/2013
1/15/2013
1/16/2013

7
No info
No info
No info
No info
No info
No info
55

15

65

40

$9.38

$187.60

1/17/2013
1/18/2013
1/19/2013
1/20/2013
1/21/2013
1/22/2013
1/23/2013

0
7
8
10
10
10
10
55

15

65

40

$9.38

$187.60

1/24/2013
1/25/2013
1/26/2013
1/27/2013
1/28/2013
1/29/2013
1/30/2013

8
8
7
7
7
No info
No info
53

13

65

39

$9.49

$185.06

1/31/2013
2/1/2013
2/2/2013
2/3/2013
2/4/2013
2/5/2013
2/6/2013

No info
6
6
10
7
7
10
54

14

65

39.5

$9.43

$186.24

Defendants'
Hours
Estimate

Defendants'
Overtime
Estimate

Plaintiff's
Overtime
Estimate

Work Week Rate

Overtime Money
Owed

(Plaintiff's Estimate +
Defendants' Estimate) / 2

Date

$750 / (Court's
Hours + 40)

1/2 Work Week
Rate x Court's
Hours

Court's Hours Finding

2/7/2013
2/8/2013
2/9/2013
2/10/2013
2/11/2013
2/12/2013
2/13/2013

7
10
7
10
10
10
7
61

21

65

43

$9.04

$194.36

2/14/2013
2/15/2013
2/16/2013
2/17/2013
2/18/2013
2/19/2013
2/20/2013

10
7
7
8
8
8
7
55

15

65

40

$9.38

$187.60

2/21/2013
2/22/2013
2/23/2013
2/24/2013
2/25/2013
2/26/2013
2/27/2013

7
7
8
7
8
9
9
55

15

65

40

$9.38

$187.60

2/28/2013
3/1/2013
3/2/2013
3/3/2013
3/4/2013
3/5/2013
3/6/2013

7
7
0
8
8
8
8
46

6

65

35.5

$9.93

$176.26

3/7/2013
3/8/2013
3/9/2013
3/10/2013
3/11/2013
3/12/2013
3/13/2013

9
0
7
No info
No info
No info
No info
48

8

65

36.5

$9.80

$178.85

Defendants'
Hours
Estimate

Defendants'
Overtime
Estimate

Plaintiff's
Overtime
Estimate

Work Week Rate

Overtime Money
Owed

(Plaintiff's Estimate +
Defendants' Estimate) / 2

Date

$750 / (Court's
Hours + 40)

1/2 Work Week
Rate x Court's
Hours

Court's Hours Finding

3/14/2013
3/15/2013
3/16/2013
3/17/2013
3/18/2013
3/19/2013
3/20/2013

7
7
0
11
10
10
6
51

11

65

38

$9.62

$180.31

3/21/2013
3/22/2013
3/23/2013
3/24/2013
3/25/2013
3/26/2013
3/27/2013

7
9
9
9
9
9
9
61

21

65

43

$9.04

$194.36

3/28/2013
3/29/2013
3/30/2013
3/31/2013
4/1/2013
4/2/2013
4/3/2013

0
0
6
No info
8
8
8
38

0

65

32.5

$10.34

$168.03

4/4/2013
4/5/2013
4/6/2013
4/7/2013
4/8/2013
4/9/2013
4/10/2013

0
9
7
11
8
8
8
51

11

65

38

$9.62

$182.78

4/11/2013
4/12/2013
4/13/2013
4/14/2013
4/15/2013
4/16/2013
4/17/2013

0
7
7
11
8
7
8
48

8

65

36.5

$9.80

$178.85

Defendants'
Hours
Estimate

Defendants'
Overtime
Estimate

Plaintiff's
Overtime
Estimate

Work Week Rate

Overtime Money
Owed

(Plaintiff's Estimate +
Defendants' Estimate) / 2

Date

$750 / (Court's
Hours + 40)

1/2 Work Week
Rate x Court's
Hours

Court's Hours Finding

4/18/2013
4/19/2013
4/20/2013
4/21/2013
4/22/2013
4/23/2013
4/24/2013

6
7
8
11
8
11
9
60

20

65

42.5

$9.09

$193.16

4/25/2013
4/26/2013
4/27/2013
4/28/2013
4/29/2013
4/30/2013
5/1/2013

0
9
7
8
8
8
9
49

9

65

37

$9.74

$169.28

5/2/2013
5/3/2013
5/4/2013
5/5/2013
5/6/2013
5/7/2013
5/8/2013

0
0
7
9
8
8
11
43

3

65

34

$10.14

$172.38

5/9/2013
5/10/2013
5/11/2013
5/12/2013
5/13/2013
5/14/2013
5/15/2013

0
8
4
11
8
8
8
47

7

65

36

$9.87

$177.66

5/16/2013
5/17/2013
5/18/2013
5/19/2013
5/20/2013
5/21/2013
5/22/2013

0
8
7
8
8
11
8
50

10

65

37.5

$9.68

$181.50

Defendants'
Hours
Estimate

Defendants'
Overtime
Estimate

Plaintiff's
Overtime
Estimate

Work Week Rate

Overtime Money
Owed

(Plaintiff's Estimate +
Defendants' Estimate) / 2

Date

$750 / (Court's
Hours + 40)

1/2 Work Week
Rate x Court's
Hours

Court's Hours Finding

5/23/2013
5/24/2013
5/25/2013
5/26/2013
5/27/2013
5/28/2013
5/29/2013

0
7
7
10
8
8
10
50

10

65

37.5

$9.68

$181.50

5/30/2013
5/31/2013
6/1/2013
6/2/2013
6/3/2013
6/4/2013
6/5/2013

12
0
0
8
0
0
0
20

0

32

16

$13.39

$107.12

6/6/2013
6/7/2013
6/8/2013
6/9/2013
6/10/2013
6/11/2013
6/12/2013

0
8
10
10
9
11
0
48

8

32

20

$12.50

$125.00

6/13/2013
6/14/2013
6/15/2013
6/16/2013
6/17/2013
6/18/2013
6/19/2013

9
0
0
7
11
8
8
43

3

32

17.5

$13.04

$114.10

6/20/2013
6/21/2013
6/22/2013
6/23/2013
6/24/2013
6/25/2013
6/26/2013

5
11
0
0
8
8
8
40

0

32

16

$13.39

$107.12

Defendants'
Hours
Estimate

Defendants'
Overtime
Estimate

Plaintiff's
Overtime
Estimate

Work Week Rate

Overtime Money
Owed

(Plaintiff's Estimate +
Defendants' Estimate) / 2

Date

$750 / (Court's
Hours + 40)

1/2 Work Week
Rate x Court's
Hours

Court's Hours Finding

6/27/2013
6/28/2013
6/29/2013
6/30/2013
7/1/2013
7/2/2013
7/3/2013

7
6.5
0
0
8
0
0
21.5

0

32

16

$13.39

$107.12

7/4/2013
7/5/2013
7/6/2013
7/7/2013
7/8/2013
7/9/2013
7/10/2013

8
7
7
8
12
0
8
50

10

32

21

$12.30

$129.15

7/11/2013
7/12/2013
7/13/2013
7/14/2013
7/15/2013
7/16/2013
7/17/2013

0
7
7
8
8
0
8
38

0

32

16

$13.39

$107.12

7/18/2013
7/19/2013
7/20/2013
7/21/2013
7/22/2013
7/23/2013
7/24/2013

0
9
5
7
8
8
8
45

5

32

18.5

$12.82

$118.59

7/25/2013
7/26/2013
7/27/2013
7/28/2013
7/29/2013
7/30/2013
7/31/2013

7
8
8
8
6
8
8
53

13

32

22.5

$12.00

$135.00

Defendants'
Hours
Estimate

Defendants'
Overtime
Estimate

Plaintiff's
Overtime
Estimate

Work Week Rate

Overtime Money
Owed

(Plaintiff's Estimate +
Defendants' Estimate) / 2

Date

$750 / (Court's
Hours + 40)

1/2 Work Week
Rate x Court's
Hours

Court's Hours Finding

8/1/2013
8/2/2013
8/3/2013
8/4/2013
8/5/2013
8/6/2013
8/7/2013

8.5
8.5
8
8
4
4
4
45

5

32

18.5

$12.82

$118.59

8/8/2013
8/9/2013
8/10/2013
8/11/2013
8/12/2013
8/13/2013
8/14/2013

4
8
8
8
8
7
7
50

10

32

21

$12.30

$129.15

8/15/2013
8/16/2013
8/17/2013
8/18/2013
8/19/2013
8/20/2013
8/21/2013

8
9
0
8
7
8
0
40

0

32

16

$13.39

$107.12

8/22/2013
8/23/2013
8/24/2013
8/25/2013
8/26/2013
8/27/2013
8/28/2013

0
8
8
10
0
8
8
42

2

32

17

$13.16

$111.86

8/29/2013
8/30/2013
8/31/2013
9/1/2013
9/2/2013
9/3/2013
9/4/2013

8
8
No Info
0
0
0
0
24

0

32

16

$13.39

$107.12

Defendants'
Hours
Estimate

Defendants'
Overtime
Estimate

Plaintiff's
Overtime
Estimate

Work Week Rate

Overtime Money
Owed

(Plaintiff's Estimate +
Defendants' Estimate) / 2

Date

$750 / (Court's
Hours + 40)

1/2 Work Week
Rate x Court's
Hours

Court's Hours Finding

9/5/2013
9/6/2013
9/7/2013
9/8/2013
9/9/2013
9/10/2013
9/11/2013

0
5
6
5
5
0
8
29

0

32

16

$13.39

$107.12

9/12/2013
9/13/2013
9/14/2013
9/15/2013
9/16/2013
9/17/2013
9/18/2013

3
9
7
8
8
8
8
51

11

32

21.5

$12.20

$131.15

9/19/2013
9/20/2013
9/21/2013
9/22/2013
9/23/2013
9/24/2013
9/25/2013

0
8
8
8
8
8
8
48

8

32

20

$12.50

$125.00

9/26/2013
9/27/2013
9/28/2013
9/29/2013
9/30/2013
10/1/2013
10/2/2013

0
0
8
8
8
0
0
24

0

32

16

$13.39

$107.12

10/3/2013
10/4/2013
10/5/2013
10/6/2013
10/7/2013
10/8/2013
10/9/2013

8
0
0
8
8
8
8
40

0

32

16

$13.39

$107.12

Defendants'
Hours
Estimate

Defendants'
Overtime
Estimate

Plaintiff's
Overtime
Estimate

Work Week Rate

Overtime Money
Owed

(Plaintiff's Estimate +
Defendants' Estimate) / 2

Date

$750 / (Court's
Hours + 40)

1/2 Work Week
Rate x Court's
Hours

Court's Hours Finding

10/10/2013
10/11/2013
10/12/2013
10/13/2013
10/14/2013
10/15/2013
10/16/2013

0
8
8
8
0
0
5
29

0

32

16

$13.39

$107.12

10/17/2013
10/18/2013
10/19/2013
10/20/2013
10/21/2013
10/22/2013
10/23/2013

0
0
8
8
8
8
5
37

0

32

16

$13.39

$107.12

10/24/2013
10/25/2013
10/26/2013
10/27/2013
10/28/2013
10/29/2013
10/30/2013

5
7
8
4
7
8
8
47

7

32

19.5

$12.61

$122.95

10/31/2013
11/1/2013
11/2/2013
11/3/2013
11/4/2013
11/5/2013
11/6/2013

0
7
0
0
11
11
8
37

0

32

16

$13.39

$107.12

11/7/2013
11/8/2013
11/9/2013
11/10/2013
11/11/2013
11/12/2013
11/13/2013

0
12
8
8
0
8
12
48

8

32

20

$12.50

$125.00

Defendants'
Hours
Estimate

Defendants'
Overtime
Estimate

Plaintiff's
Overtime
Estimate

Work Week Rate

Overtime Money
Owed

(Plaintiff's Estimate +
Defendants' Estimate) / 2

Date

$750 / (Court's
Hours + 40)

1/2 Work Week
Rate x Court's
Hours

Court's Hours Finding

11/14/2013
11/15/2013
11/16/2013
11/17/2013
11/18/2013
11/19/2013
11/20/2013

0
0
6
4
7
8
8
33

0

32

16

$13.39

$107.12

11/21/2013
11/22/2013
11/23/2013
11/24/2013
11/25/2013
11/26/2013
11/27/2013

8
8
0
0
0
0
9
25

0

32

16

$13.39

$107.12

11/28/2013
11/29/2013
11/30/2013
12/1/2013
12/2/2013
12/3/2013
12/4/2013

8
12
8
6
4
9
5
52

12

32

22

$12.10

$133.10

12/5/2013
12/6/2013
12/7/2013
12/8/2013
12/9/2013
12/10/2013
12/11/2013

0
8
8
5
8
8
10
47

7

32

19.5

$12.61

$121.88

12/12/2013
12/13/2013
12/14/2013
12/15/2013
12/16/2013
12/17/2013
12/18/2013

0
6.5
0
0
0
8
8
22.5

0

32

16

$13.39

$107.12

Defendants'
Hours
Estimate

Defendants'
Overtime
Estimate

Plaintiff's
Overtime
Estimate

12/19/2013
12/20/2013
12/21/2013
12/22/2013
12/23/2013
12/24/2013
12/25/2013

0
8
8
8
8
7.5
8
47.5

12/26/2013
12/27/2013
12/28/2013
12/29/2013
12/30/2013
12/31/2013
1/1/2014

7.5
8.5
7
0
9
9
No info
49

TOTAL

Work Week Rate

Overtime Money
Owed

(Plaintiff's Estimate +
Defendants' Estimate) / 2

Date

$750 / (Court's
Hours + 40)

1/2 Work Week
Rate x Court's
Hours

Court's Hours Finding

7.5

32

19.75

$12.55

$123.93

9

32

20.5

$12.40

$127.10

373.5

2357

1365.25

$7,438.03