Rasberry v. Columbia County, AR
ORDER granting 46 Motion for Partial Summary Judgment; Kumesha Ward's claims are dismissed with prejudice. Signed by Honorable Susan O. Hickey on April 11, 2018. (cnn)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
MICHELLE RASBERRY, individually
and on Behalf of Others Similarly Situated;
KUMESHA WARD; JACOB CAIN;
and JOHNNY HAYNES
CASE NO. 1:16-CV-1074
COLUMBIA COUNTY, ARKANSAS
Before the Court is Defendant’s Motion for Partial Summary Judgment. ECF No. 46.
Plaintiffs have filed a response. ECF No. 50. The Court finds this matter ripe for consideration.
Plaintiff Michelle Rasberry filed her Complaint on August 4, 2016. ECF No. 1. Plaintiff
Rasberry sought relief pursuant to the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201, et
seq., and the Arkansas Minimum Wage Act (“AMWA”), Ark. Code Ann. §§ 11-4-201, et seq.
ECF No. 1, ¶ 1. Plaintiff Rasberry claimed that Defendant failed to pay her, and others similarly
situated, overtime compensation for all hours worked in excess of 171 hours in a twenty-eight
consecutive day work period. ECF No. 1, ¶ 1. Specifically, Plaintiff Rasberry alleged that
Defendant had “misclassified [Plaintiff Rasberry and all those similarly situated] as exempt from
the overtime requirements of the FLSA . . . and the AMWA[.]” ECF No. 1, ¶ 9. Plaintiff Rasberry
claimed that she was a salaried employee employed by Defendant and “was routinely required to
work off-the-clock in excess of 171 hours in a 28-day work period and was not allowed to report
all hours worked, including overtime.” ECF No. 1, ¶¶ 15, 18. The Court conditionally certified a
FLSA collective action on January 31, 2017. ECF No. 25. Upon completion of the FLSA opt-in
period, six individuals, including Plaintiff Rasberry, had consented to be part of the FLSA
collective action. ECF Nos. 11, 12, 27, 28, 29. On July 31, 2017, the Court denied Plaintiff
Rasberry’s motion for class certification pursuant to Federal Rule of Civil Procedure 23. ECF No.
On March 7, 2018, Plaintiff Rasberry was given leave to file an amended complaint adding
individual AMWA claims for Plaintiffs Kumesha Ward, Jacob Cain, and Johnny Haynes. On
March 8, 2018, Plaintiffs filed their First Amended and Substituted Complaint—Collective Action
(hereinafter “Amended Complaint”). ECF No. 45. In the Amended Complaint, Plaintiff Rasberry
again asserts individual and collective FLSA claims, and all Plaintiffs assert individual AMWA
claims. In regard to Plaintiff Rasberry’s individual and collective FLSA claims, Plaintiffs state that
Defendant misclassified Rasberry and those similarly situated as exempt from FLSA overtime
provisions and failed to pay Rasberry and those similarly situated for all hours worked, including
overtime. ECF No. 45, ¶¶ 48, 59, 60. In regard to Plaintiffs’ individual AMWA claims, they state
that “[d]espite the entitlement of Plaintiffs to minimum wage and overtime payments under the
AMWA, Defendant failed to pay Plaintiffs for all hours worked including overtime. . . . Defendant
willfully failed to pay overtime wages to Plaintiffs[.]” ECF No. 45, ¶¶ 53, 54.
The Federal Rules of Civil Procedure provide that when a party moves for summary
judgment “[t]he court shall grant summary judgment 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). The Supreme Court has issued the following guidelines for trial courts to determine
whether this standard has been satisfied:
The inquiry performed is the threshold inquiry of determining whether there is a
need for trial—whether, in other words, there are genuine factual issues that
properly can be resolved only by a finder of fact because they may reasonably be
resolved in favor of either party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); see also Agristor Leasing v. Farrow,
826 F.2d 732 (8th Cir. 1987); Niagara of Wis. Paper Corp. v. Paper Indus. Union-Mgmt. Pension
Fund, 800 F.2d 742, 746 (8th Cir. 1986). A fact is material only when its resolution affects the
outcome of the case. Anderson, 477 U.S. at 248. A dispute is genuine if the evidence is such that
it could cause a reasonable jury to return a verdict for either party. Id. at 252.
The Court must view the evidence and the inferences that may be reasonably drawn from
the evidence in the light most favorable to the nonmoving party. Enter. Bank v. Magna Bank, 92
F.3d 743, 747 (8th Cir. 1996). The moving party bears the burden of showing that there is no
genuine issue of material fact and that it is entitled to judgment as a matter of law. Id. The
nonmoving party must then demonstrate the existence of specific facts in the record that create a
genuine issue for trial. Krenik v. Cnty. of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995). A party
opposing a properly supported motion for summary judgment may not rest upon mere allegations
or denials, but must set forth specific facts showing that there is a genuine issue for trial. Anderson,
477 U.S. at 256. The non-moving party “must do more than simply show that there is some
metaphysical doubt as to the material facts.” Matsuhita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). “A case founded on speculation or suspicion is insufficient to survive a
motion for summary judgment.” Nat’l. Bank of Comm. of El Dorado, Ark. v. Dow Chem. Co., 165
F.3d 602, 610 (8th Cir. 1999). The non-moving party “must come forward with sufficient evidence
to support their claims and cannot stand on their complaint and unfounded speculation.” Id.
(internal citations omitted). “When opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not
adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott v.
Harris, 550 U.S. 372, 380 (2007).
In the instant motion, Defendant asserts that it is entitled to summary judgment concerning
“any and all claims brought by Separate Plaintiff Kumesha Ward[.]” ECF No. 46, ¶ 2. Defendant
asserts that Plaintiff Ward’s claims (1) fail as a matter of law and (2) are barred by the applicable
statutes of limitation. The Court will address each of these assertions in turn.
Defendant’s Assertion That Plaintiff Ward’s Claims Fail as a Matter of Law
Defendant states that, like the other plaintiffs in this action, Plaintiff Ward was a salaried
employee. ECF No. 47, pp. 1-2. However, Defendant claims that, unlike the other plaintiffs,
Plaintiff Ward was a part-time employee. ECF No. 47, p. 2. Defendant further asserts that when
deposed, Plaintiff Ward stated that she worked approximately thirty-eight to forty hours every two
weeks. ECF No. 47, p. 2. Defendant states that although Plaintiff Ward:
testified that her time sheets were inaccurate, she could present no documentary
proof and had no recollection of what hours she actually worked during her
employment with Columbia County, except that she testified repeatedly that she
did not work as much as the full-time employees.
ECF No. 47, p. 2. Defendant asserts that, accordingly, Plaintiff Ward would have been “nearly 100
hours short of overtime eligibility.” ECF No. 47, p. 4. Based on this testimony, Defendant claims
that Plaintiff Ward’s FLSA claims fail as a matter of law.
Defendant further states that during her deposition, Plaintiff Ward testified that she was
paid an annual salary of $13,685.88, with a bi-weekly paycheck of $526.38. ECF No. 47, p. 2.
Accordingly, Defendant argues that Plaintiff Ward’s AMWA claims fail “because a biweekly
paycheck of $526.38 for approximately 38-40 of work yields an effective hourly rate of $13-$14
per hour, nearly double the minimum wage.” ECF No. 47, p. 3. Thus, Defendant argues that no
reasonable juror could conclude that Plaintiff Ward was denied overtime compensation or paid
less than minimum wage.
In response, Plaintiff Ward concedes that she “never worked more than 171 hours in a 28day period and thus is not entitled to overtime.” 1 ECF No. 50, p. 3. However, Plaintiff Ward argues
that a genuine issue of material fact exists as to whether she received a minimum wage and states
that “her claims arise exclusively under the AMWA.” ECF No. 50, p. 4. In regard to this issue,
Plaintiff Ward argues:
During her employment with Defendant, Ward was typically scheduled to work
five or six 12-hour shifts every two weeks. This amounts to 60 to 72 hours per
biweekly period. However, Ward regularly worked more than her scheduled shifts,
as she was required to arrive early and stay late on most days. This additional,
undocumented work could easily result in several hours of extra work each shift.
However, even assuming Ward only ever worked one additional hour per shift, she
still did not receive a minimum wage. If Ward worked one additional hour per shift,
then she worked roughly 65 to 78 hours per biweekly period. Thus, her biweekly
salary of $526.38 becomes an hourly wage of $6.74 to $8.09. Clearly, there were
at least some weeks in which Plaintiff was not paid a minimum wage of $7.25,
which is enough to defeat Defendant’s Motion. How many additional hours Ward
worked, and how much she is owed, is a fact question still to be determined at trial.
ECF No. 50, p. 4.
Plaintiff Ward makes this concession notwithstanding the facts that she opted-in to the conditionally certified FLSA
collective action and signed an affidavit in which she did “swear, affirm, and attest” that she “was regularly required
by Defendant to work in excess of 171 hours in a 28-day period work period.” ECF No. 14-8. In light of this
concession, the Court will only discuss Plaintiff Ward’s minimum wage violation claims.
Plaintiff Ward’s position rests on the contention that her timesheets are inaccurate. The
record contains eleven timesheets covering two-week periods from late June 2013 through midDecember 2013. See ECF No. 48-1, pp. 39-49. Each of these timesheets reflects that Plaintiff Ward
worked thirty-nine-and-a-half hours every two weeks, consisting of three twelve-hour shifts and
one three-and-a-half hour shift. 2 Each of these timesheets bears Plaintiff Ward’s signature above
her name. 3 ECF No. 48-1, p. 9. Likewise, each timesheet is signed and certified as being accurate
by Sheriff Mike Loe. However, as previously noted, Plaintiff Ward alleges that these timesheets
contain inaccuracies and fail to include certain hours she worked. That being said, Plaintiff Ward
readily admits she has no documentary evidence that contradicts the timesheets or supports her
contentions. ECF No. 48-1, p. 19 (Q: . . . I’m trying to figure out how much you worked. You
don’t have any written records, you didn’t keep a diary or anything like that, did you? A: No, sir,
I did not.); ECF No. 48-1, p. 19 (Q: Do you know of any other written records that would document
the amount of time that you worked in 2013, other than the time-sheets that were submitted? A:
Upon careful consideration, the Court finds that no genuine issues of material fact remain.
To begin, the Court notes that Plaintiff Ward correctly states that she at one point testified that she
worked “five or six” twelve-hour shifts every two weeks. ECF No. 48-1, p. 8 (Q: So you worked
12-hour shifts. How many 12-hour shifts would you work, say, every two weeks? A: About, about
five or six.). However, she does not account for or even address the fact that shortly thereafter, she
If these timesheets are correct—which Plaintiff Ward asserts they are not—when read in light of Plaintiff Ward’s biweekly salary of $526.38, Plaintiff Ward’s hourly pay-rate would be $13.32 per hour.
Plaintiff Ward testified that she signed these allegedly inaccurate timesheets because the jail administrator “told us
to only write down that and that she was going to take care of the rest; she was going to pay us for comp [time].” ECF
No. 48-1, p. 10. Accordingly, Plaintiff Ward would have a jury believe that she signed at least eleven consecutive
timesheets that were inaccurate.
also testified that she was unsure how many twelve-hour shifts she worked every two weeks. ECF
No. 48-1, p. 14 (Q: . . . How many 12-hour shifts did you work in every two-week period? A:
Well, actually, that, I’m really not for sure, because, you know, I did come in for other, they who
called in, but like I said, I was required to write down those twelve hours.). Likewise, Plaintiff
Ward fails to address her testimony in which she explicitly states that she worked approximately
thirty-eight to forty hours every two weeks. ECF No. 48-1, p. 16 (Q: Did you work approximately
38 to 40 hours every two weeks? A: Every two weeks, yeah.). If Plaintiff Ward worked five or six
twelve-hour shifts every two weeks, that would be between sixty and seventy-two hours over the
course of two weeks—not thirty-eight to forty hours as Plaintiff Ward testified. Furthermore,
Plaintiff Ward’s testimony that she worked approximately thirty-eight to forty hours every two
weeks is precisely what is reflected by her signed timesheets, which note that she worked thirtynine-and-a-half hours every two weeks. Finally, as noted above, Plaintiff Ward has no written
record that would support her claim that she worked five or six twelve-hour shifts every two weeks.
Simply put—other than Plaintiff Ward’s self-contradicted testimony—there is no evidence to
support a finding that she worked five or six twelve-hour shifts over the course of every two weeks.
Furthermore, although Plaintiff Ward testified that she was called in “quite a bit” to cover
shifts for co-workers and was not allowed to record that time, she was unable to state how often
she was asked to do so and did not offer any specific instances in which she was called in. ECF
No. 48-1, p. 26 (Q: Yeah, so how often did it happen where you had to come in to cover somebody
else’s shift? A: It happened quite a bit. Q: Once a month, once every two months? A: You know,
you just really, just didn’t really know, how people take off. No, sir, I’m not really sure.). Likewise,
Plaintiff Ward has not provided the Court with any records reflecting the frequency that she was
asked to cover shifts and her testimony makes clear no such records exist. ECF No. 48-1, p. 19.
On this issue there is simply a complete lack of evidentiary support aside from Plaintiff Ward’s
bare allegations. Accordingly, a jury would be left to speculate, with no guidance, as to how often
Plaintiff Ward allegedly covered shifts for co-workers.
Plaintiff Ward also alleges that she never worked anything less than a twelve-hour shift,
and testified that the timesheet notation that she worked three-and-a-half hours should have
reflected that she worked twelve hours: “that should have been the ‘twelve,’ not three-and-a-half
hours.” ECF No. 48-1, p. 13; ECF No. 48-1, p. 33. However, the Court again notes that Plaintiff
Ward has produced no documentary evidence to support her claim that she actually worked twelve
hours as opposed to three-and-a-half. Regardless, even if Plaintiff Ward provided evidence to
support this assertion and a jury were to find this statement credible and, therefore, that Plaintiff
Ward actually worked twelve hours each time her timesheet recorded that she worked three-anda-half hours, that would result in Plaintiff Ward working forty-eight hours every two weeks. This
would yield an effective hourly rate-of-pay of $10.96 4—well above the minimum wage of $7.25
per hour cited by Plaintiff Ward.
Plaintiff Ward likewise asserts that she generally arrived at work thirty-minutes before her
actual shift started because of “meetings and the things that we have got to go over,” but was
unable to record that time. 5 ECF No. 48-1, p. 13. She also states that she stayed after her shift on
This figure comes from four, twelve-hour shifts, which would result in forty-eight hours worked over a two-week
period. $526.38 divided by forty-eight hours comes to $10.96 per hour.
In her response, Plaintiff Ward claims that she regularly came to work thirty or forty-five minutes early. However,
in her deposition she only stated that she came in thirty minutes early. There is no indication that she ever came in
forty-five minutes early. Although defense counsel at one point asked her if she “worked an extra thirty or forty-five
minutes a shift” (ECF No. 48-1, p. 23) to which she responded, “it’s more than that,” there is no indication that Plaintiff
Ward ever arrived more than thirty minutes early.
occasion, 6 but it is unclear from her testimony as to how often she stayed late. ECF No. 48-1, p.
16 (Q: Do you remember ever staying late? A: Yes, sir. Because we, you know, couldn’t be
relieved until the other person came in to relieve us, so, yes, sir. Q: And, but those people would
be there thirty minutes early, just like you. Right? A: Yes, sir. Sometime. But, you know,
sometime, they, you know, had things come up, you know, or whatever, so, you know.). Once
again, the Court notes that Plaintiff Ward submits no evidence other than her testimony to support
these claims. Regardless, even if there was evidence to support these claims and a jury found they
had merit and determined that Plaintiff Ward worked even a whole extra hour each day, there
would be no minimum wage violations. 7
Accordingly, viewing the evidence and the inferences that may be reasonably drawn from
the evidence in the light most favorable to Plaintiff Ward, the Court concludes that she has failed
to provide sufficient evidence to support her claims. The documentary evidence in this case
directly contradicts Plaintiff Ward’s claims and her deposition testimony is contradictory and often
vague. Upon consideration, no reasonable jury could return a verdict in Plaintiff Ward’s favor.
Therefore, the Court finds that no genuine issues of material fact remain and, thus, summary
judgment as to Plaintiff Ward’s claims is warranted.
Although Plaintiff Ward asserts in her response that she stayed late “most days,” there is no record support for such
The only documentary evidence—the timesheets—shows that at most Plaintiff Ward worked four shifts per twoweek period. If a jury were to find that Plaintiff Ward worked an additional four hours on top of the time recorded on
her timesheet—thirty-nine-and-a-half hours—that would yield an hourly rate-of-pay of $12.10 ($526.38/43.5 hours).
Likewise, even if there was evidence to support Plaintiff Ward’s contention that the three-and-a-half hour shifts on
her timesheet should have been twelve-hour shifts and four hours were also added, that would yield an hourly rate-ofpay of $10.12 ($526.38/52 hours).
Defendant’s Assertion That Plaintiff Ward’s Claims are Barred by the Statutes
In light of the Court’s finding that Plaintiff Ward’s claims fail as a matter of law, the
Court need not discuss the issue of whether those claims would be time-barred.
For the foregoing reasons, the Court finds that Defendant’s Motion for Partial Summary
Judgment (ECF No. 46) should be and hereby is GRANTED. Accordingly, Plaintiff Kumesha
Ward’s claims are hereby DISMISSED WITH PREJUDICE.
IT IS SO ORDERED, this 11th day of April, 2018.
/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge
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