Edmund v. City of Fort Myers

Filing 56

OPINION AND ORDER denying 34 Motion for summary judgment and granting in part and denying in part 37 Motion for summary judgment. See Opinion and Order for details. Signed by Judge John E. Steele on 1/5/2012. (SVC) Modified on 1/5/2012 (RKR).

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ROY F. EDMUND, on behalf of himself
and those similarly situated,
Plaintiff,
vs.

Case No.

2:10-cv-474-FtM-29SPC

CITY OF FORT MYERS,
Defendant.
______________________________________
OPINION AND ORDER
This matter comes before the Court on Defendant City of Fort
Myers’s (defendant or the City) Rule 56 Dispositive Motion for
Summary Judgment and Memorandum of Law (Doc. #34) filed on October
13, 2011.

Plaintiff, Roy F. Edmund (plaintiff or Edmund), filed a

response on October 27, 2011.

(Doc. #41.)

Also before the Court

is Plaintiff’s Motion for Partial Summary Judgment (Doc. #37) filed
on October 14, 2011.
2011.

(Doc. #45.)

The City filed a response on November 15,

For the reasons discussed below, defendant’s

motion is denied and plaintiff’s motion is granted in part and
denied in part.
I.
Summary

judgment

is

appropriate

only

when

the

Court

is

satisfied that “there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of
law.”

Fed. R. Civ. P. 56(c).

An issue is “genuine” if there is

sufficient evidence such that a reasonable jury could return a

verdict for either party.
U.S. 242, 248 (1986).

Anderson v. Liberty Lobby, Inc., 477

A fact is “material” if it may affect the

outcome of the suit under governing law.
The

moving

party

bears

the

burden

Id.
of

identifying

those

portions of the pleadings, depositions, answers to interrogatories,
admissions, and/or affidavits which it believes demonstrate the
absence of a genuine issue of material fact.

Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986); Rice-Lamar v. City of Fort
Lauderdale, 232 F.3d 836, 840 (11th Cir. 2000).

In order to avoid

the entry of summary judgment, a party faced with a properly
supported summary judgment motion must come forward with extrinsic
evidence,

i.e.,

interrogatories,

affidavits,
and/or

depositions,

admissions,

which

are

answers

to

sufficient

to

establish the existence of the essential elements to that party’s
case, and the elements on which that party will bear the burden of
proof at trial.

Celotex Corp. v. Catrett, 477 U.S. at 322; Hilburn

v. Murata Elecs. N. Am., Inc., 181 F.3d 1220, 1225 (11th Cir.
1999).
In ruling on a motion for summary judgment, the Court is
required to consider the evidence in the light most favorable to
the nonmoving party. Johnson v. Booker T. Washington Broad. Serv.,
Inc., 234 F.3d 501, 507 (11th Cir. 2000); Jaques v. Kendrick, 43
F.3d

628,

630

(11th

Cir.

1995).

The

Court

does

not

conflicting evidence or make credibility determinations.

-2-

weigh

Hilburn

v. Murata Elecs. N. Am., Inc., 181 F.3d at 1225.

“If the record

presents factual issues, the court must not decide them; it must
deny the motion and proceed to trial.”

Tullius v. Albright, 240

F.3d 1317, 1320 (11th Cir. 2001)(citing Clemons v. Dougherty Cnty.,
684 F.2d 1365, 1369 (11th Cir. 1982)).

However, “[t]he mere

existence of some factual dispute will not defeat summary judgment
unless that factual dispute is material to an issue affecting the
outcome of the case.”

McCormick v. City of Fort Lauderdale, 333

F.3d 1234, 1243 (11th Cir. 2003). A genuine issue of material fact
exists only if there is sufficient evidence favoring the nonmoving
party for a reasonable jury to return a verdict in its favor.

Id.

II.
The following facts are undisputed: Edmund was employed by the
City

and

performed

his

duties

on

the

Eastwood

Golf

Course

(“Eastwood”), a golf course owned and operated by the City.1
Although plaintiff initially misstated his work schedule, as is
discussed in more detail infra, the parties ultimately agree that
plaintiff’s regular schedule was a forty (40) hour work week as
follows: Monday, Tuesday, Thursday, and Friday, from 5:00 AM

1

Edmund alleges that he was employed as an Irrigation
Technician.
In their Answer, the City admits that Edmund was
employed by the City but denies that he was employed as an
Irrigation Technician. (Doc.#9, ¶18.) The City does not indicate
what position it believes Edmund was employed.
The Fair Labor
Standards Act Exemption Form, produced by Edmund, indicates that he
was employed as a “Golf Course Maintenance Worker” rather than
irrigation technician. (Doc.#37-4, p.2.). This distinction has not
been asserted to be material in this case.
-3-

through 1:00 PM, Wednesday, from 5:00 AM through 10:30 AM, and
either Saturday or Sunday, from 5:00 AM through 7:30 AM.

The City

of Fort Myers required employees working at the Eastwood Golf
Course to clock in and clock out for their shifts.

The parties

agree

morning

that

plaintiff

typically

approximately 4:30 a.m.

clocked

in

every

at

They disagree, however, as to whether

Edmund was engaged in work activities prior to his regular start
time of 5:00 a.m.
Plaintiff filed a one-count Complaint on his behalf and those
similarly situated (Doc. #1) against the City alleging defendant
violated the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-19,
by failing to properly compensate him for overtime hours worked in
excess of his 40 hour per week schedule.

He seeks compensation,

liquidated damages, and reasonable attorney’s fees.
III.
Congress enacted the FLSA to ensure a “minimum standard of
living necessary for health, efficiency, and general well being .
. . .” for workers in the United States.

29 U.S.C. § 202(a).

The

FLSA mandates that an employee who is “engaged in interstate
commerce” must be paid an overtime wage of one and one-half times
his regular rate for all hours he works in excess of forty hours
per week.

29 U.S.C. § 207(a).

If a covered employee is not paid

the statutory wage, the FLSA creates for that employee a private
cause of action against his employer for the recovery of unpaid

-4-

overtime wages and back pay. Id. § 216(b).

Before a plaintiff may

recover for uncompensated overtime work under the FLSA, he or she
must

prove

that

(1)

they

worked

overtime

hours

without

compensation, and (2) the defendant had knowledge, or should have
had knowledge, of the plaintiff’s overtime work. Reich v. Dep’t of
Conservation & Natural Res., 28 F.3d 1076, 1082 (11th Cir. 1994).
An employee who brings suit for overtime wages under the FLSA has
the burden of proving that uncompensated work was performed.
Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946).
Since April 15, 1986, a municipality has been an “employer” for
purposes of the FLSA.

Garcia v. San Antonio Metro. Transit Auth.,

469 U.S. 528, 533 (1985); Wethington v. City of Montgomery, 935
F.2d 222, 224-25 (11th Cir. 1991)(citing Fair Labor Standards
Amendments of 1985, Pub. L. No. 99-150 § 2(c), 99 Stat. 787, 788).
IV.
A.

The City’s Motion for Summary Judgement (Doc. #34)
The City seeks summary judgment because Edmund initially

misstated his work schedule (Doc. #34.)

In support, the City

provided an affidavit of Kathy Musa (Musa), the Administrative
Manager2 for the City of Fort Myers, in which she attests to
plaintiff’s

regularly

scheduled

work

2

week.2

As Administrative Manager, Musa’s
keeping and payroll. (Doc. #34-1, ¶2.)
2

Attached

to

Musa’s

affidavit
-5-

is

duties
a

pay

(Doc.

#34-1.)

included

time

register which
(continued...)

Edmund acknowledges his initial misstatement regarding his work
schedule, but contends he has since amended his statement and the
misstatement is irrelevant.

(Doc. #41.)

On January 7, 2011, Edmund filed his Responses to the Court’s
Interrogatories (Doc. #25) in which he described his regular work
schedule as follows: “Monday through Saturday, from 5:00 a.m.
through 1:00 p.m. I worked, and was expected to work from 4:30
through 1:30 p.m.

I was scheduled to have a half-hour lunch, but

I was not able to take my lunch due to the work load.”
1,

p.1.)

In

response

to

interrogatory

7,

which

(Doc. # 25sought

an

accounting of plaintiff’s claim, Edmund responded that in addition
to his regular schedule of 40 hours per week, he worked 14 hours of
overtime.

Id.

On October 14, 2011, plaintiff filed an

Amended response to

the Court’s Interrogatories (Doc. #36) in which he described his
regular work schedule as follows:
Monday, Tuesday, Thursday, Friday, 5:00 AM through 1:00
PM, Wednesday, 5:00 AM through 10:30 AM, and Saturday OR
Sunday, 5:00 AM through 7:30 AM. However, I regularly
and customarily began work before the 5:00 AM (between

2

(...continued)
indicates that between July 30, 2008, and April 14, 2010, Edmund
was paid $6,659.06 in overtime wages.
(Doc. #34-1, p.3.)
The
City, however, makes no argument in their motion that summary
judgment is warranted because Edmund has been fully compensated.
To the contrary, the City’s motion is limited to summary judgment
based on plaintiff’s misstatement of his work schedule. The same
affidavit was provided in response to plaintiff’s Motion for
Summary Judgment and is discussed in further detail in Section
V.B.1 ,infra.
-6-

4:30 AM and 4:40 AM) scheduled start time and continued
to work after the scheduled end time (i.e. after 1:00 PM
on Mondays, Tuesdays, Thursdays and Fridays, after 10:30
AM on Wednesdays, and after 7:30 AM on weekends.
(Doc.

#

36-1,

p.

1.)

This

amended

statement

defendant’s account of Edmund’s schedule.

comports

with

The accounting of

plaintiff’s claim in his amended response indicates that he worked
“approximately” 14 overtime hours per week.

In both his first and

amended response to the court’s interrogatories, plaintiff claims
he is owed $24,328.34 in overtime compensation.
Although plaintiff initially misstated his work schedule,
plaintiff has always maintained that, in addition to his regularly
scheduled 40 hour work week, he regularly worked overtime for which
he

was

not

compensated.

The

Court

is

not

persuaded

that

plaintiff’s initial failure to correctly report the exact times he
was

expected

to

work

warrants

summary

judgment

in

favor

of

defendant, nor does defendant cite to any case law which would
support such a finding. Plaintiff’s misstatement has been cured by
plaintiff’s amended response, and summary judgment as a sanction
would simply be far too severe.

Defendant’s motion for summary

judgment is denied.
B.

Edmund’s Partial Motion for Summary Judgment (Doc. #37)
Plaintiff’s motion seeks summary judgment that: (1) defendant

violated, and is liable under, the FLSA for unpaid wages; (2)
plaintiff is entitled to an award of liquidated damages; and (3)
plaintiff’s affirmative defenses lack merit.
-7-

Plaintiff contends

that trial should be set solely on the issue of damages.
#37.)
1.

(Doc.

The Court disagrees.
Whether Defendant is Liable for
Liquidated Damages Under the FLSA

Unpaid

Wages

and

Plaintiff contends that summary judgment is appropriate as to
the City’s liability for unpaid wages under the FLSA because his
time cards clearly reflect that he was clocked in for more time
than he was compensated.

He further contends that time cards were

often collected at the end of his regularly scheduled work day
although he often was required to stay after hours.

Plaintiff

contends that he was engaged in work activities for all time he was
clocked in.

Plaintiff acknowledges that he has been compensated

for some overtime throughout his tenure with the City, but claims
that he has not been compensated for all work he performed.
The City acknowledges that Edmund’s time cards demonstrate
that plaintiff was clocked in for a period of time that exceeds his
compensation.

The City asserts, however, that although plaintiff

clocked in early, he usually was not engaged in work activities
until his start of shift.

On the occasions that he did engage in

work activities outside of his regularly scheduled shift, he was
compensated.

As such, Edmund is not entitled to any additional

overtime compensation under the FLSA.

Further, the City argues

that (1) it had an overtime policy and any overtime claimed by
Edmund was not authorized; (2) the City had no notice of Edmund’s
alleged uncompensated overtime; (3) estoppel is applicable to
-8-

plaintiff’s claim; and (4) any error in plaintiff’s overtime pay is
de minimus.
A genuine issue of material fact exists as to whether Edmund
performed work for which he was not compensated.

The FLSA does not

provide a definition of “work” so “the task of giving that term
meaning has fallen to the courts.”

Anderson v. Perdue Farms, 604

F.Supp.2d 1339, 1347 (M.D. Ala. 2009).

The Supreme Court has

interpreted “work” or “employment” as “physical or mental exertion
(whether burdensome or not) controlled or required by the employer
and pursued necessarily and primarily for the benefit of the
employer and his business.”

IBP, Inc. v. Alvarez, 546 U.S. 21, 25

(2005). Whether time is spent predominantly for the employer’s
benefit or for the employees’ depends on the circumstances of the
case. See Armour & Co. v. Wantock, 323 U.S. 126, 133 (1944).
Here,
testimony

the

Court

regarding

is

presented

whether

with

plaintiff

contradictory

was

engaged

sworn

in

work

activities performed outside of his regularly scheduled hours.
Plaintiff’s testimony indicates that he routinely arrived to work
at 4:30 a.m. to open up the facilities, set up his vehicle, and
take care of a dog “that was left by the past superintendent that
was given to [him] to take care of.” (Doc. #37-7, pp.7-8.)

In

addition, prior to 5:00 a.m. he regularly rode the golf course
looking for broken pipes, leaky pipes, and flooded drains in order
to report any such problems to his supervisor, Kevin Burke (Burke).

-9-

(Id. at p.8.)

Plaintiff also testified that he regularly clocked

out a 1:00 p.m. although he remained working on the premises past
such time. Finally, he attests that he was often called back to
work for emergencies for which he was not compensated.
1,

pp.4-7.)

Plaintiff’s

testimony

is

buttressed

(Doc. #37by

his

co-

worker’s, Jeffrie Vandrie, affidavit who attests that Edmund was
frequently working on the golf course prior to 5:00 a.m., that
Edmund frequently worked after 1:00 p.m. even though the time cards
were collected early, and that on Wednesdays, time cards were
routinely collected before the end of shift and employees were not
paid if they continued to work after 1:00.

(Doc. #37-8, pp.3-4.)

In contrast, Burke’s deposition testimony indicates that he
does not recall “sending [Edmund] out to ride the course prior to
5:00 a.m.”

(Doc. #37-5, p.10.)

Burke further testified that on

occasions where Edmund was engaged in work activities prior to 5:00
a.m. he was compensated appropriately based on his clock-in and
clock out

time.

(Doc.

#37-5, pp.12-13.)

Burke’s

affidavit

indicates that on occasions where Edmund clocked in early although
no work was assigned, he was not compensated because he was
socializing, drinking coffee, and feeding the dog.

(Doc. #45-1,

p.5.) Furthermore, Burke indicates that he maintained a journal of

-10-

work performed, and attested that his journal indicates that Edmund
was in fact paid for all overtime work performed.3

(Id.)

Additionally, Musa’s testimony also indicates that the time
that employees clock in indicates when an employee “arrive[s] at
work [and not] when they begin their work.”

(Doc. #37-3, pp.8-9.)

She testified that the purpose of clocking in early is to attend to
personal matters prior to beginning the workday. (Id. at p.6.)

If

actual work was completed before an employee’s start time, the
supervisor made a notation on their time card to alert payroll that
overtime work was in fact completed.

(Id. at pp.6-10; 12-13)

This conflicting sworn testimony goes directly to the heart of
the conflict between the parties: whether Edmund performed work for
which he was not compensated.

This raises a genuine issue of

material

summary

fact

which

precludes

judgment

in

favor

of

plaintiff.
Further, the Court is not persuaded by defendant’s arguments
that its overtime policy, lack of notice, doctrine of estoppel, or
that Edmund’s damages are de minimis preclude relief for plaintiff
under the FLSA.
a.

Overtime Policy

The City contends that it has an overtime policy that requires
prior approval before overtime work can be conducted.

It contends

that any uncompensated overtime work was in contravention of this

3

A copy of his journal was not provided to the Court.
-11-

policy, and therefore he is not entitled to compensation under the
FLSA.
The City contends that its overtime policy, a copy of which
was not provided to the Court, provides:
Department Directors may schedule overtime or extra
shifts when it is deemed necessary.
Supervisors will
assign overtime to employees in the particular job for
which overtime is required. Non-exempt employees (those
employees subject to minimum wage and overtime provisions
of the Fair Labor Standards Act) are not permitted to
work overtime without the prior approval of their
supervisor or department director.
(Doc. #45, p.3.)

Nonetheless, under the FLSA regulations,

In all such cases 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.
29 C.F.R. § 785.13.

Thus, the existence of the City’s overtime

policy, standing alone, is insufficient to defeat plaintiff’s FLSA
claim.

Furthermore, the Court does not find defendant’s reliance

on Contini v. United Trophy MFG. Inc., 2007 WL 1696030 (M.D. Fla.
June 12, 2007) persuasive.

In Contini, the plaintiff failed to

include his overtime worked on his time sheets and never provided
notice of any kind to his employer.

The plaintiff conceded that

although he had the opportunity, he chose not to ask his supervisor
for the hours of overtime he believed he was entitled.

Here,

plaintiff’s time cards clearly reflect a period of time for which
plaintiff was clocked-in but was not compensated.
-12-

b.

Lack of Notice

The City also contends that plaintiff is precluded from
recovery because

it

had

overtime compensation.

no

notice

that Edmund

contested his

Specifically, it contends that Edmund

consistently signed the following certification on his time-cards
which provided him approximately 138 times to contest his pay:
I, the undersigned, certify that this is a true and
accurate record of my working time for the period
mentioned. I have not had any unreported work related
accidents or injuries during this time.
(Doc. #45, p. 4.)
“[I]n reviewing the extent of an employer's awareness, a court
need only inquire whether the circumstances were such that the
employer either had knowledge of overtime hours being worked or
else had the opportunity through reasonable diligence to acquire
knowledge.”

Reich v. Dep’t of Conservation & Nat'l Res., 28 F.3d

1076, 1082 (11th Cir. 1994) (internal quotation marks omitted).
“The employer's knowledge is measured in accordance with his duty
to inquire into the conditions prevailing in his business.” Allen,
495 F.3d at 1319 (quoting Golf King Shrimp Co. v. Wirtz, 407 F.2d
508, 512 (5th Cir.1969)) (internal quotation marks omitted); see
also Reich, 28 F.3d at 1082.

Furthermore, an employer “does not

rid himself of that duty because the extent of the business may
preclude

his

personal

supervision,

and

compel

reliance

on

subordinates. The cases must be rare where prohibited work can be
done and knowledge or the consequences of knowledge avoided.”
-13-

Reich, 28 F.3d at 1082 (quoting Wirtz, 407 F.2d at 512) (internal
quotation marks omitted).
Despite an employer’s duty to inquire, “[a]n employer must
have an opportunity to comply with the provisions of the FLSA.”
Forrester v. Roth's I.G.A. Foodliner, Inc., 646 F.2d 413, 414-15
(9th Cir. 1981).

When an “‘employee fails to notify the employer

or deliberately prevents the employer from acquiring knowledge of
the overtime work, the employer’s failure to pay for the overtime
hours is not [an FLSA] violation.’”

Newton v. City of Henderson,

47 F.3d 746 (5th Cir.1995) (quoting Forrester, 646 F.2d at 414);
see also Allen, 495 F.3d at 1319 (“There is no violation of the
FLSA

where

the

employee

performs

uncompensated

work

but

deliberately prevents his or her employer from learning of it.”);
Brumbelow

v.

Quality

Mills,

Inc.,

462

F.2d

1324,

1327

(5th

Cir.1972); Gaylord v. Miami-Dade County, 78 F.Supp.2d 1320, 1325
(S.D.

Fla.

1999)

(“An

employer

does

not

have

knowledge

of

uncompensated overtime when an employee submits time sheets showing
such overtime did not occur.”).
Defendant did not provide a copy of any of plaintiff’s time
cards to

the

Court,

but

plaintiff’s submission.

such

documents were

included

within

A review of the time cards demonstrates a

computerized clock in and clock out time.

In addition, there are

handwritten notations from payroll which indicate a period of time
which is often times less than the hours for which Edmund was

-14-

clocked in.

For each time card, Edmund signed the certification

recited above.

The certification, however, is not dated.

generally, Docs. ##37-10;37-11.)

(See

As such, it is unclear whether

Edmund certified as to the accuracy of the computerized clock in
time or the handwritten notations from the payroll department or
both.

Further, the record contains competing affidavits regarding

whether

Edmund’s

overtime work.
pp.7-8.)

supervisor

was

aware

of

plaintiff’s

alleged

(See, e.g., Doc.#37-5 pp.10;12-13 and Doc. #37-7,

Accordingly, there is sufficient evidence to create a

disputed issue of material fact as to whether the City was provided
with sufficient notice under the FLSA.
c.

Estoppel

Generally speaking, estoppel is not a recognizable defense
under the FLSA.

However, an exception exists “where the party

asserting estoppel is not seeking to entirely preclude the opposing
party from bringing its FLSA claim.”

Gonzalez v. Spears Holdings,

Inc., 2009 WL 2391233 (S.D. Fla. July 31, 2009). In order for an
estoppel defense to stand against an FLSA claim, the estoppel
sought must be less than full, and a good faith reason must be
provided.

Judkins v. Bloomen Intern., Inc., 2010 WL 2510665, *4

(M.D. Fla. June 24, 2010.)

Here, the City seeks to preclude Edmund

from asserting his FLSA claim.

Thus, the exception to the general

rule that estoppel is not a recognizable offense under the FLSA is
not applicable.

-15-

d.

De Minimis

The City also argues that any error in Edmund’s compensation
is de minimus.

As such, plaintiff’s recovery is precluded.

“An employer is not required . . . to compensate an employee
for all of the employee’s time that is associated with work.”
Kavanagh v. Grand Union Co., 192 F.3d 269, 272 (2d Cir. 1999).

The

Portal-to-Portal Act, 29 U.S.C. § 251 et seq., which amends the
FLSA, identifies activities that are not compensable under the
FLSA.

Under the Portal-to-Portal Act, an employer is not subject

to liability under the FLSA for failure to pay employees overtime
compensation for
(1) walking, riding, or traveling to and from the actual
place of performance of the principal activity or
activities which such employee is employed to perform,
and
(2) activities which are preliminary to or postliminary
to said principal activity or activities,
which occur either prior to the time on any particular
workday at which such employee commences, or subsequent
to the time on any particular workday at which he ceases,
such principal activity or activities. For purposes of
this subsection, the use of an employer's vehicle for
travel by an employee and activities performed by an
employee which are incidental to the use of such vehicle
for commuting shall not be considered part of the
employee's principal activities if the use of such
vehicle for travel is within the normal commuting area
for the employer's business or establishment and the use
of the employer's vehicle is subject to an agreement on
the part of the employer and the employee or
representative of such employee.
29 U.S.C. § 254(a).

-16-

Preliminary

and

postliminary

activities

are

considered

compensable if they are “an integral and indispensable part of the
[employee's] principal activities.”

Steiner v. Mitchell, 350 U.S.

247, 256 (1956); Dunlop v. City Electric, Inc., 527 F.2d 394, 399
(5th Cir. 1976).4

By contrast, an employer is not required to pay

employees for otherwise compensable activities if the time spent
performing those activities is de minimis. See Anderson v. Mt.
Clemens Pottery Co., 328 U.S. 680, 692 (1946), superseded by
statute on other grounds as stated in Carter v. Panama Canal Co.,
463 F.2d 1289, 1293 (D.C. Cir. 1972); Dunlop v. City Electric,
Inc., 527 F.2d 394 (5th Cir. 1976).
In

Anderson,

the

Supreme

Court

held

that

preliminary

activities such as putting on aprons, removing shirts, turning on
switches, and opening windows are “clearly work” because “they
involve exertion of a physical nature, controlled or required by
the

employer

and

pursued

necessarily

and

primarily

for

the

employer's benefit.” Id. at 693. An employer, however, is not
required

to

compensable

pay

employees

preliminary

for

de

activities.

minimis
Id.

time

The

performing

Court

made

a

distinction between de minimis and compensable work, stating:
When the matter in issue concerns only a few seconds or
minutes of work beyond the scheduled working hours, such
trifles may be disregarded. . . . It is only when an

4

The Eleventh Circuit has adopted as precedent the decisions
of the former Fifth Circuit rendered prior to October 1, 1981. See
Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981)
-17-

employee is required to give up a substantial measure of
his time and effort that compensable working time is
involved.
Id. at 692.
Here, unlike Burton v. Hillsbourough Cnty., 181 F. App’x 829,
833 (11th Cir. 2006), cited by defendant, the plaintiff is not
claiming compensation for a few minutes of time for which he was
clocked in early.

Instead, plaintiff clocked in approximately 30

minutes early each day, a substantial measure of time.

As such,

this argument is rejected.
Thus, plaintiff’s motion for summary judgment as to the City’s
FLSA liability for unpaid wages as well as liquidated damages is
denied.
2.

The City’s Affirmative Defenses

Edmund also seeks summary judgment as to defendant’s various
affirmative defenses alleged in its Answer. However, he only makes
arguments pertaining to the City’s 8th, 16th, and 17th affirmative
defenses.
a.

8th Affirmative Defense

Plaintiff contends that in its 8th affirmative defense, the
City impermissibly pleads an offset.

(Doc.#37, p.15.)

The City’s

6th, rather than 8th, affirmative defense pleads an offset.

The

8th affirmative defense alleges that plaintiff “has failed to state
facts sufficient to support an award of damages, fees, or costs of
any type against defendant.”

(Doc. #9, p.4.)

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To the extent

plaintiff challenges this affirmative defense, such a challenge is
moot as this defense was stricken by the Court.

(See Doc. #19.)

To the extent that plaintiff intended to challenge the City’s
6th affirmative defense of offset, the motion is denied.

The

City’s 6th affirmative defense:
alleges that any claim for additional compensation by
plaintiff must be reduced by compensation already paid to
plaintiff for periods not compensable under the FLSA.
Defendant further affirmatively alleges that any claims
for compensation by plaintiff must be offset by premium
compensation, bonuses, compensatory time off, or other
job-related benefits paid or provided to plaintiff.
(Doc. #9, p.4, ¶6.)
The FLSA explicitly provides that certain payments made by an
employer

shall

be

“creditable

toward

overtime

compensation,”

namely: (1) extra compensation provided by a premium rate for
certain hours worked by the employee in any day or workweek because
such hours are hours worked in excess of eight in a day or in
excess of the maximum workweek applicable to such employee or in
excess of the employee’s normal working hours or regular working
hours, as the case may be; (2) extra compensation provided by a
premium rate paid for work by the employee on weekends, holidays,
or regular days of rest, or on the sixth or seventh day of the
workweek, where such premium rate is not less than one and one-half
times the rate established in good faith for like work performed in
non-overtime hours on other days; and (3) extra compensation
provided by a premium rate paid to the employee, in pursuance of an

-19-

applicable employment contract or collective-bargaining agreement,
for work outside of the hours established in good faith by the
contract or agreement as the basic, normal, or regular workday (not
exceeding eight hours) or workweek (not exceeding the maximum
workweek applicable to such employee), where such premium rate is
not less than one and one-half times the rate established in good
faith by the contract or agreement for like work performed during
such

workday

or

workweek.

See

29

U.S.C.

§§

207(e),

207(h).

Conversely, there are several types of payments that cannot be
applied to offset unpaid wages, including: (1) fringe benefits such
as meals, health insurance, bonuses, and paid vacations, see Dunlop
v. Gray-Goto, Inc., 528 F.2d 792, 794 (10th Cir. 1976) and Futrell
v. Columbia Club, Inc., 338 F.Supp. 566, 573 (D.C. Ind. 1971); (2)
wages for “down time” on the job, see Hiner v. Penn-Harris-Madison
Sch. Corp., 256 F.Supp.2d 854, 860 (N.D. Ind. 2003); (3) wages for
meal breaks, see Ballaris v. Wacker Siltronic Corp., 370 F.3d 901,
913-14 (9th Cir.2004); and (4) amounts loaned by an employer to an
employee,

see Donovan

v. Pointon,

717

F.2d

1320,

1323

(10th

Cir.1983).
Here, the City affirmatively alleges that it is entitled to an
offset for “premium compensation, bonuses, compensatory time off,
or other job-related benefits paid or provided to plaintiff.”
(Doc.

#9,

¶6.)

Since

at

least

premium

compensation

is

a

permissible offset under the FLSA, plaintiff’s motion is denied.

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b.

16th Affirmative Defense

Plaintiff also contests the City’s 16th Affirmative defense in
which defendant contends Edmund, and those similarly situated, “are
not entitled to overtime pay under FLSA because they are exempt as
employed
capacity.”

in

an

executive,

administrative,

(Doc. #9, p.5, ¶16.)

or

professional

Edmund contends this affirmative

defense is without merit because the City has conceded that he is
an hourly paid employee.
An exemption from the overtime pay requirement exists for
employees

in

a

“bona

fide

executive,

administrative,

or

professional capacity” as defined by regulations of the Secretary.
29 U.S.C. § 213(a)(1).

“The employer bears the burden of proving

the . . . exemption. We construe overtime exemptions narrowly,
against the employer.” Avery v. City of Talladega, Ala., 24 F.3d
1337, 1340 (11th Cir. 1994).

An employee is considered “paid on a

salary basis” if “he regularly receives each pay period on a
weekly, or less frequent basis, a predetermined amount constituting
all or part of his compensation, which amount is not subject to
reduction because of variations in the quality or quantity of the
work performed.”

29 C.F.R. § 541.602.

“[A]s long as there is a

non-deductible minimum, additional compensation on top of the
non-deductible salary is permissible.” Hogan v. Allstate Ins. Co.,
361 F.3d 621, 625 (11th Cir. 2004) (citation omitted).

And, while

additional compensation is permissible, the regulations do not

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require additional compensation.
employer

may

provide

an

29 C.F.R. § 541.604(a) (“An

exempt

employee

with

additional

compensation without losing the exemption or violating the salary
basis requirement, if the employment arrangement also includes a
guarantee of at least the minimum weekly-required amount paid on a
salary basis. . . . Such additional compensation may be paid on any
basis . . . .”).
Here, Edmund has provided evidence that indicates that he was
an hourly paid employee.

(See, e.g. Doc.#37-1, p.3.) The City

makes no arguments in response, nor does it point the Court to any
evidence that would support a finding that Edmund wad not an hourly
paid

employee.

In

fact,

the

City’s

answers

to

Edmund’s

Interrogatories state that plaintiff was paid on an hourly basis.
(Doc.#37-6, p.5.)

As such, it is undisputed that the City’s 16th

affirmative defense lacks merit.
c.

17th Affirmative Defense

Plaintiff’s request for summary judgment on defendant’s 17th
affirmative defense5 is denied as moot.
was stricken by this Court’s Order.
d.

This affirmative defense

(See Doc. #19.)

Remaining Affirmative Defenses

As to the remaining affirmative defenses, summary judgment is
denied.

Edmund

makes

no

arguments

5

related

to

the remaining

The City’s 17th affirmative defense alleges “that it is
entitled to the privileges and governmental immunities under
Florida Statutes.” (Doc. # 9, p.5, ¶17.)
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defenses in his motion nor does he point to any evidence he
believes demonstrates the absence of a material fact. See Celotex,
477 U.S. at 323.

Because plaintiff has not met his burden, the

request is denied.
ORDERED:
(1)Defendants’ Rule 56 Dispositive Motion for Summary Judgment
and Memorandum of Law (Doc. #34) is DENIED.
(2) Plaintiff’s Motion for Partial Summary Judgment (Doc. #37)
is GRANTED IN PART and DENIED IN PART:
(A)

Plaintiff’s

motion

for

summary

judgment

as

to

defendant’s 16th affirmative defense is GRANTED.
(B) The motion is denied in all other respects as stated
in this Opinion and Order.
DONE AND ORDERED at Fort Myers, Florida, this
January, 2012.

Copies: Counsel of record

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5th

day of