Romero v. Prindle Hill Construction, LLC et al

Filing 71

RULING. For the reasons set forth in the attached Ruling, plaintiff's 55 Motion In Limine to preclude defendants' evidence at trial is DENIED, and the request to apply burden shifting is DENIED, as premature, and without prejudice to renewal at the conclusion of trial. Signed by Judge Sarah A. L. Merriam on 8/7/2017. (Katz, S.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
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:
LUIS ROMERO
:
:
v.
:
:
PRINDLE HILL CONSTRUCTION,
:
LLC, et al.
:
:
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Civ. No. 3:14CV01835(SALM)

August 7, 2017

RULING ON PLAINTIFF’S MOTION IN LIMINE AND
REQUEST TO APPLY BURDEN SHIFTING [Doc. #55]
Plaintiff Luis Romero (“plaintiff”) has filed a motion in
limine seeking to “limit any documentary or testamentary
evidence that the defendants assert shows the hours worked by or
wages paid to the plaintiff and apply the burden-shifting
framework” established by the United States Supreme Court, and
adopted by the Connecticut Supreme Court. Doc. #55 at 1.
Defendants Prindle Hill Construction, LLC and Franklin C.
Bradley, III (“defendants”) object to plaintiff’s motion. [Doc.
#59]. For the reasons articulated below, plaintiff’s motion in
limine [Doc. #55] to preclude defendants’ evidence at trial is
DENIED, and the request to apply burden-shifting is DENIED, as
premature, and without prejudice to renewal at the conclusion of
trial.

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I.

BACKGROUND
Plaintiff brings this action pursuant to the Fair Labor

Standards Act (“FLSA”), 29 U.S.C. §201, et seq., the Connecticut
Minimum Wage Act (“CMWA”), Conn. Gen. Stat. §31-58 et seq., and
Connecticut’s prevailing wage law, Conn. Gen. Stat. §31-53, et
seq. See generally Doc. #1, Complaint. Plaintiff alleges that
(1) defendants did not pay him appropriate overtime wages, in
violation of the FLSA and CMWA; (2) defendants did not pay him
the proper minimum wage, in violation of the FLSA and CMWA; (3)
defendants failed to pay him all of the wages owed to him, in
violation of Conn. Gen. Stat. §31-72; and (4) defendants failed
to pay him the prevailing wage for work performed on Connecticut
public works projects, in violation of Conn. Gen. Stat. §31-53.
See id. at 5-7. Defendants deny plaintiff’s allegations. See
Doc. #16, Answer.
A bench trial in this matter is scheduled to commence on
September 12, 2017. See Doc. #66.
II.

LEGAL STANDARD
The purpose of a motion in limine is to allow the court to

rule in advance of trial on the admissibility of anticipated
evidence. See Luce v. United States, 469 U.S. 38, 40 n.2 (1984);
Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996). “Evidence
should be excluded on a motion in limine only when the evidence
is clearly inadmissible on all potential grounds.” Jean-Laurent
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v. Hennessy, 840 F. Supp. 2d 529, 536 (E.D.N.Y. 2011) (citation
omitted). “Indeed, courts considering a motion in limine may
reserve judgment until trial, so that the motion is placed in
the appropriate factual context.” Id. (citing Nat’l. Union Fire
Ins. Co. v. L.E. Myers Co. Grp., 937 F. Supp. 276, 287 (S.D.N.Y.
1996)). “[T]he court’s ruling regarding a motion in limine is
‘subject to change when the case unfolds, particularly if the
actual testimony differs from what was [expected].’” Id.
(quoting Luce, 469 U.S. at 41).
III. DISCUSSION
Plaintiff, relying on the cases of Anderson v. Mt. Clemens
Pottery, 328 U.S. 680 (1948),1 and Schoonmaker v. Lawrence
Brunoli, Inc., 828 A.2d 64 (Conn. 2003), requests
that the Court rule in limine that: (1) the defendants’
documents or witness testimony not be allowed into
evidence for the purpose of showing the hours worked or
the wages paid to the plaintiff; (2) the plaintiff be
permitted to put on such evidence as he has regarding
the hours he worked and the pay he received; and (3) the
defendants may only rebut the plaintiff’s evidence
regarding the hours he worked and the pay he received
with specific evidence to the contrary.
Doc. #55 at 1-2. Defendants oppose plaintiff’s motion and
respond that: (1) plaintiff has not satisfied the requirements

Portions of the holding in Anderson have been superseded by
statute. See Gorman v. Consol. Edison Corp., 488 F.3d 586, 590
(2d Cir. 2007). However, the holdings of the decision at issue
here remain good law. See, e.g., Kuebel v. Black & Decker Inc.,
643 F.3d 352, 361-63 (2d Cir. 2011).
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under Anderson and Schoonmaker for application of the burdenshifting framework; and (2) plaintiff has not established that
defendants’ records are inadequate. See Doc. #59 at 1.
A. Burden-Shifting Framework of Anderson and Schoonmaker
Under both federal and Connecticut law, employers are
required to keep accurate records of their employees’ wages and
hours. See 29 U.S.C. §211(c); 29 C.F.R. §§516.2(a), 516.5; see
also Conn. Gen. Stat. §31-66. “These requirements are not mere
technicalities, but substantive obligations that are fundamental
underpinnings of FLSA and critical to ensuring the statute’s
effectiveness, for an employer’s failure to keep accurate
records can obscure a multitude of minimum wage and overtime
violations.” Moon v. Kwon, 248 F. Supp. 2d 201, 218 (S.D.N.Y.
2002) (citation and internal quotation marks omitted).
“To establish liability under the FLSA on a claim for
unpaid overtime, a plaintiff must prove that he performed work
for which he was not properly compensated, and that the employer
had actual or constructive knowledge of that work.” Kuebel, 643
F.3d at 361 (collecting cases).
When an employer has failed to maintain complete and
accurate records, the plaintiff “has carried out his burden if
he proves that he has in fact performed work for which he was
improperly compensated and if he produces sufficient evidence to
show the amount and extent of that work as a matter of just and
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reasonable inference.” Anderson, 328 U.S. at 687; see also
Kalloo v. Unlimited Mech. Co. of NY, 977 F. Supp. 2d 187, 200
(E.D.N.Y. 2013). This burden is not a heavy one, and the
plaintiff may meet the burden by offering estimates based on his
best recollection. See Daniels v. 1710 Realty LLC, 497 F. App’x
137, 139 (2d Cir. 2012); Kuebel, 643 F.3d at 362 (collecting
cases).
Once a plaintiff has met his burden, “[t]he burden then
shifts to the employer to come forward with evidence of the
precise amount of work performed or with evidence to negative
the reasonableness of the inference to be drawn from the
employee’s evidence. If the employer fails to produce such
evidence, the court may then award damages to the employee, even
though the result be only approximate.” Anderson, 328 U.S. at
687–88.
Where an employer fails to keep adequate records,
Connecticut courts apply “the burden shifting scheme articulated
in Anderson” to state law wage and hour claims. Schoonmaker, 828
A.2d at 83; see also Fuk Lin Pau v. Jian Le Chen, No.
3:14CV841(JBA), 2015 WL 6386508, at *4 (D. Conn. Oct. 21, 2015)
(“The law is clear that where, as here, an employer fails to
keep proper records as required by the CMWA and FLSA, an
employee has carried out his burden of proving that he worked
uncompensated overtime if he proves that he has in fact
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performed work for which he was improperly compensated and if he
produces sufficient evidence to show the amount and extent of
that work as a matter of just and reasonable inference.”
(citation and internal quotation marks omitted)); Roberts v.
Bennaceur, No. 3:12CV01222(JAM), 2015 WL 1471889, at *23 (D.
Conn. Mar. 31, 2015) (discussing Anderson burden-shifting
framework in connection with an alleged violation of the
Connecticut Wage Statute), aff’d, 658 F. App’x 611 (2d Cir.
2016).
B. Analysis
As a threshold matter, there is a factual dispute as to
whether defendants failed to retain “adequate” records of
plaintiff’s employment. Plaintiff alleges in the Complaint that
defendants “did not maintain a complete and accurate record of
the hours worked, wages earned, and wages paid to the
plaintiff.” Doc. #1, Complaint at ¶23. Defendants deny this
allegation, and argue in opposition to the motion in limine that
they in fact did maintain adequate records, and that they “have
provided documentation concerning the Plaintiff’s year end
salary for approximately the last five years[,]” and have
“provided information to the Plaintiff that they logged each
Friday when workers were paid.” See Doc. #59 at 1-2. The Court
is not in a position to make a finding as to whether the records
maintained by defendants were adequate. Therefore, plaintiff’s
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request to apply Anderson’s burden-shifting framework is
premature. See Anderson, 328 U.S. at 687.
Plaintiff’s request is also premature because plaintiff has
not yet met his initial burden that would trigger the Anderson
burden-shifting framework. Anderson provides that before the
burden is shifted to defendants, plaintiff must “prove[] that he
has in fact performed work for which he was improperly
compensated.” Kalloo, 977 F. Supp. 2d at 200. Plaintiff does not
proffer any evidence which would permit the Court, at this time,
to make such a finding, and thus to invoke the Anderson burdenshifting framework. See generally Doc. #55-1.
Plaintiff’s request to preclude defendants from offering
evidence of the hours worked by or wages paid to plaintiff also
runs afoul of Anderson by effectively undoing the very burdenshifting framework plaintiff seeks to apply. Plaintiff cites to
no authority in support of the notion that he should be
permitted to testify about the hours he worked, but the
defendants should be barred from offering any evidence of their
own on that issue. Cf. Berry v. Office of the Fayette Cty.
Sherriff, No. 5:14CV356(DCR), 2016 WL 552475, at *1 (E.D. Ky.
Feb. 10, 2016). Plaintiff’s approach turns Anderson on its head,
by prohibiting the defendants from coming forward with evidence
even when the burden shifts back to them and requires such
production. Indeed, were defendants to fail to produce such
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evidence, the Court would be empowered to award damages to
plaintiff based solely on his estimates. See Anderson, 328 U.S.
at 687-88. Plaintiff’s argument is more properly viewed as going
to the weight of defendants’ evidence than to its admissibility.
Accordingly, plaintiff’s motion in limine to preclude
defendants’ evidence of hours worked by and wages paid to
plaintiff is DENIED. See Berry, 2016 WL 552475, at *1-2 (denying
motion in limine seeking similar relief).
Finally, the Court notes that the parties are trying this
matter to the Court, not to a jury. Accordingly, where there is
no risk of confusion to the jury, the Court will determine
whether to apply the Anderson burden-shifting framework after
the presentation of all evidence.
For the reasons stated above, the Court DENIES plaintiff’s
motion in limine to preclude the introduction of defendants’
evidence regarding plaintiff’s hours worked and wages paid, and
DENIES, without prejudice to renewal at trial, plaintiff’s
request to apply the Anderson burden-shifting framework
discussed above. [Doc. #55].
IV. CONCLUSION
For the reasons articulated above, plaintiff’s motion in
limine [Doc. #55] to preclude defendants’ evidence at trial is
DENIED, and the request to apply burden-shifting is DENIED, as

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premature, and without prejudice to renewal at the conclusion of
trial.
SO ORDERED at New Haven, Connecticut this 7th day of August
2017.
/s/
HON. SARAH A. L. MERRIAM
UNITED STATES MAGISTRATE JUDGE

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