Stuart v. Resurgens Risk Management, Inc. et al
Filing
78
ORDER granting in part and denying in part Defendant's 59 Motion for Summary Judgment. It is GRANTED with respect to any Count I claim for overtime compensation arising after March 21, 2011 and as to Plaintiffs Count II claim for quantum meru it/unjust enrichment in its entirety. It is DENIED with respect to Defendants assertion that Defendants McAdams and Yingling are not employers under the FLSA. Plaintiffs Motion for Partial Summary Judgment 55 is GRANTED in part and DENIED in part. It is GRANTED on Plaintiffs claim that Defendants Burks and Yingling are employers under the FLSA. It is DENIED, however, with respect to Plaintiffs claim that Defendant McAdams is an employer under the FLSA. It is also DENIED with respect to Plaint iffs Count I claim for overtime compensation, liquidated damages, costs, and attorneys fees under the FLSA, and with respect to Plaintiffs assertion that Defendants violation of the FLSA was willful. Finally, it is DENIED with respect to Plaintiffs claim that Defendants violated the record-keeping provisions of the FLSA.. Signed by Judge Richard W. Story on 6/12/2013. (cem)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
MICHAEL J. STUART,
Plaintiff,
v.
RESURGENS RISK
MANAGEMENT, INC., WILLIE
H. BURKS, RONALD D.
MCADAMS, and WAYNE
YINGLING,
Defendants.
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CIVIL ACTION NO.
1:11-CV-04251-RWS
ORDER
This case comes before the Court on Plaintiff’s Motion for Partial
Summary Judgment [55] and Defendants’ Motion for Summary Judgment [59].
After reviewing the record, the Court enters the following Order.
Background
This is a case concerning overtime compensation allegedly owed Plaintiff
under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq. (See
generally Compl., Dkt. [1-1].) Except where otherwise indicated, the following
facts are undisputed.
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Defendant Resurgens Risk Management, Inc. (“Resurgens”) is a Georgia
corporation in the business of insurance sales and related services. (Pl.’s
Statement of Undisputed Material Facts As To Which No Genuine Issue
Remains To Be Tried (“Pl.’s SMF”), Dkt. [55-2] ¶ 1.) Defendant Willie H.
Burks (“Burks”) is Resurgens’s Chief Executive Officer (“CEO”) and sole
shareholder. (Id. ¶ 4.) Burks has day-to-day operational and supervisory
control of Resurgens. (Id. ¶ 5.) He has authority to set compensation and work
schedules of Resurgens employees and to hire and fire Resurgens employees,
and he has exercised that authority. (Id. ¶ 6.) He has also exercised his
authority to enter into contracts on behalf of Resurgens. (Id. ¶ 7.) Everything
that happens at Resurgens is Burks’s ultimate responsibility. (Id. ¶ 8.)
Defendant Ronald D. McAdams (“McAdams”) is Resurgens’s President
and Chief Operating Officer (“COO”) and supervises the company’s property
and casualty division. (Id. ¶ 9.) Defendant Wayne Yingling (“Yingling”) has
served as Resurgens’s Vice President since June 1, 2010, when he became
employed by Resurgens, and he supervises the company’s employee benefits
division. (Id. ¶ 10; Defs.’ Statement Of Undisputed Material Facts In Support
Of Their Motion For Summary Judgment (“Defs.’ SMF”), Dkt. [59-2] ¶ 40.)
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McAdams and Yingling have day-to-day operational control over their
respective divisions at Resurgens, including setting the compensation of the
employees they supervise and the authority to hire and fire employees in their
respective divisions. (Id. ¶ 11.) McAdams and Yingling also have authority to
enter into contracts on behalf of Resurgens. (Id. ¶ 11.) Additional facts
regarding McAdams and Yingling’s roles in the company are stated in the
Discussion section, infra.
Plaintiff Michael J. Stuart (“Plaintiff”) was employed by Resurgens as an
hourly, non-exempt Account Representative/Coordinator in the company’s
employee benefits division. (Id. ¶ 14.) Plaintiff had responsibilities for
working on Requests for Proposals (“RFPs”) for Resurgens. (Id. ¶ 17.) He also
assisted Resurgens’s local government clients with open insurance enrollments.
(Id. ¶ 18.) Plaintiff represented Fulton County, Georgia in unemployment
hearings conducted by the Georgia Department of Labor. (Id. ¶ 19.) These
hearings occasionally required Plaintiff to work outside the office. (Id.)
Additional facts regarding the conditions of Plaintiff’s employment are stated in
the Discussion section, infra.
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In August 2011, Resurgens downsized by implementing a reduction to its
workforce. (Id. ¶ 22.) At that time, Burks directed McAdams and Yingling to
reduce the size of their respective divisions and to return to Burks with a list of
employees from each division to be separated from Resurgens, which they did.
(Id. ¶ 23.) Plaintiff was one of the individuals laid off from Resurgens’s
employee benefits department. (Id. ¶ 24.)
Plaintiff initiated this litigation by filing a Complaint, seeking to recover
from Defendants “unpaid overtime wages as a result of performing work ‘off
the clock’ for the benefit of Defendants, with their knowledge,” pursuant to the
FLSA. (Compl., Dkt. [1-1].) In Count I of the Complaint, Plaintiff raises a
claim for overtime compensation under the FLSA. (Id. ¶¶ 29-39.) In Count II,
Plaintiff raises a claim for quantum meruit/unjust enrichment, alleging that “[t]o
the extent that Plaintiff performed any services for Defendants for which he was
not compensated, but which did not result in Plaintiff working more than 40
hours per week, Defendants have been unjustly enriched . . . .” (Id. ¶¶ 40-42.)
Plaintiff now moves for partial summary judgment, seeking judgment as
a matter of law on the following issues: (1) that Defendants Burks, McAdams,
and Yingling (the “Individual Defendants”) were Plaintiff’s “employers” within
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the meaning of the FLSA; (2) that Defendants are liable under Count I for
unpaid overtime compensation under the FLSA; (3) that Defendants are
therefore also liable for liquidated damages, costs, and attorney’s fees under the
FLSA; (4) that Defendants’ violation of the FLSA was “willful”; and, finally,
(5) that Defendants violated the FLSA’s record-keeping requirements. (See
generally Mem. of Law in Supp. of Pl.’s Mot. for Summ. J. (“Pl.’s Mem.”),
Dkt. [55-1].)
Defendants also move for summary judgment. Defendants first seek
dismissal of the Complaint in its entirety on grounds of judicial estoppel, based
on Plaintiff’s failure to disclose his claims against Defendants in Plaintiff’s
Chapter 13 bankruptcy proceeding, which was proceeding contemporaneously
with this action. (Defs.’ Mot. for Summ. J., Dkt. [59] at 1.) In the event the
Court declines to dismiss the Complaint on grounds of judicial estoppel,
Defendants move for summary judgment on (1) Plaintiff’s Count I claim for
overtime under the FLSA, to the extent any such claim arises after March 21,
2011; (2) Plaintiff’s Count II claim for quantum meruit/unjust enrichment in its
entirety; and (3) all claims against Defendants McAdams and Yingling on the
basis that these Defendants are not “employers” subject to the FLSA. (Id. at 2.)
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The Court sets out the legal standard governing a motion for summary judgment
before considering the parties’ motions on the merits.
Discussion
I.
Summary Judgment Legal Standard
Federal Rule of Civil Procedure 56 requires that summary judgment be
granted “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 moving party bears ‘the initial responsibility of informing the . . .
court of the basis for its motion, and identifying those portions of the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, which it believes demonstrate the absence of a genuine issue
of material fact.’” Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259
(11th Cir. 2004) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)
(internal quotations omitted)). Where the moving party makes such a showing,
the burden shifts to the non-movant, who must go beyond the pleadings and
present affirmative evidence to show that a genuine issue of material fact does
exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).
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The applicable substantive law identifies which facts are material. Id. at
248. A fact is not material if a dispute over that fact will not affect the outcome
of the suit under the governing law. Id. An issue is genuine when the evidence
is such that a reasonable jury could return a verdict for the non-moving party.
Id. at 249-50.
Finally, in resolving a motion for summary judgment, the court must
view all evidence and draw all reasonable inferences in the light most favorable
to the non-moving party. Patton v. Triad Guar. Ins. Corp., 277 F.3d 1294, 1296
(11th Cir. 2002). But, the court is bound only to draw those inferences which
are reasonable. “Where the record taken as a whole could not lead a rational
trier of fact to find for the non-moving party, there is no genuine issue for trial.”
Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
“If the evidence is merely colorable, or is not significantly probative, summary
judgment may be granted.” Anderson, 477 U.S. at 249-50 (internal citations
omitted); see also Matsushita, 475 U.S. at 586 (once the moving party has met
its burden under Rule 56(a), the nonmoving party “must do more than simply
show there is some metaphysical doubt as to the material facts”).
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II.
Defendants’ Motion for Summary Judgment [59]
A.
Judicial Estoppel
Defendants seek dismissal of the Complaint in its entirety on grounds of
judicial estoppel, arguing that this sanction is warranted in light of Plaintiff’s
failure to disclose his claims against Defendants in his Chapter 13 bankruptcy
proceeding. (Defs.’ Mem. of Law in Supp. of Mot. for Summ. J. (“Defs.’
Mem.”), Dkt. [59-1] at 4-13.)
“Judicial estoppel is an equitable doctrine that precludes a party from
asserting a claim in a legal proceeding that is inconsistent with a claim taken by
that party in a previous proceeding.” Barger v. City of Cartersville, 348 F.3d
1289, 1293 (11th Cir. 2003) (internal quotes and citation omitted). “The
doctrine exists to protect the integrity of the judicial process by prohibiting
parties from deliberately changing positions according to the exigencies of the
moment.” Id. (internal quotes and citation omitted). In the Eleventh Circuit,
the applicability of the doctrine turns primarily on two factors: “First, it must be
shown that the allegedly inconsistent positions were made under oath in a prior
proceeding. Second, such inconsistencies must be shown to have been
calculated to make a mockery of the judicial system.” Robinson v. Tyson
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Foods, Inc., 595 F.3d 1269, 1273 (11th Cir. 2010). These factors, however, are
not exhaustive; “courts must always give due consideration to the circumstances
of the particular case.” Id. (citation omitted).
Plaintiff initiated this litigation by filing his Complaint in the Superior
Court of Fulton County on November 8, 2011. (Compl., Dkt. [1-1].) Plaintiff
subsequently filed a petition for Chapter 13 bankruptcy on April 2, 2012.
(Decl. of Dean Fuchs (“Fuchs Decl.”), Dkt. [71] ¶ 3.) It is undisputed that
Plaintiff failed to disclose his claims against Defendant in his Chapter 13
bankruptcy proceeding, which was proceeding contemporaneously with this
litigation. Thus, it is undisputed that Plaintiff took an inconsistent position in a
prior proceeding under oath. See Robinson, 595 F.3d at 1275 (“[F]ailure to
timely amend a Chapter 13 reorganization plan to reflect a pending claim while
simultaneously pursuing that claim in another court of law constitutes
inconsistent positions under oath.” (citing Ajaka v. Brooksamerica Mortgage
Corp., 453 F.3d 1339, 1344 (11th Cir. 2006))); Evans v. Potter, No. 1:08-cv1687-TWT, 2009 WL 529599, at *2 (N.D. Ga. Feb. 27, 2009) (“In the context
of Chapter 13 bankruptcies, ‘judicial estoppel bars a plaintiff from asserting
claims previously undisclosed to the bankruptcy court where the plaintiff both
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knew about the undisclosed claims and had a motive to conceal them.’”
(quoting De Leon v. Comcar Indus., Inc., 321 F.3d 1289, 1291 (11th Cir.
2003))). The first prong of the judicial estoppel test is satisfied. The issue
therefore becomes one of intent.
As stated above, judicial estoppel will bar Plaintiff’s claims in this action
only if Plaintiff’s failure to disclose those claims in the bankruptcy proceeding
was “calculated to make a mockery of the judicial system.” “For purposes of
judicial estoppel, intent is a purposeful contradiction—not simple error or
inadvertence.” Barger, 348 F.3d at 1294. “In considering judicial estoppel for
bankruptcy cases, the debtor’s failure to satisfy its statutory disclosure duty is
‘inadvertent’ only when, in general, the debtor either lacks knowledge of the
undisclosed claims or has no motive for their concealment.” Robinson, 595
F.3d at 1275. Moreover, “[w]hile an estopped party’s contradiction must be
intentional, such intent may be inferred from the record.” Id.
The Eleventh Circuit has cautioned, however, that “[j]udicial estoppel is
intended to be a flexible rule in which courts must take into account all of the
circumstances of each case in making [a] determination.” Ajaka, 453 F.3d at
1344 (internal quotes and citation omitted). Indeed, the United States Supreme
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Court has noted that there are no “inflexible prerequisites or an exhaustive
formula for determining the applicability of judicial estoppel. Additional
considerations may inform the doctrine’s application in specific factual
contexts.” New Hampshire v. Maine, 532 U.S. 742, 751 (2001). Judicial
estoppel is an equitable doctrine, and the decision whether to invoke it is within
the court’s discretion. Burnes v. Pemco Auroplex, Inc., 291 F.3d 1282, 1287
(11th Cir. 2002).
Despite the fact the Plaintiff initially failed to disclose his claims against
Defendants in his Chapter 13 bankruptcy proceeding, the Court finds judicial
estoppel unwarranted in light of the particular facts of this case. Although the
requisite intent to “make a mockery of the judicial system” may be inferred
from the record under certain circumstances, the Court finds such inference
improper in this case in light of the following evidence.
The Court notes, first, Plaintiff’s assertion that he did not intend to
conceal the pendency of this action from the bankruptcy court. (Decl. of
Michael J. Stewart (“Pl.’s Decl.”), Dkt. [70] ¶ 10.) Plaintiff explains that on
March 31, 2012, he went to his bankruptcy counsel’s law office and was
assisted with the preparation of his bankruptcy petition by non-lawyer
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personnel. (Pl.’s Decl., Dkt. [70] ¶¶ 7-9.) These individuals questioned
Plaintiff “in rapid-fire succession” and recorded information on a lap-top
computer. (Id. ¶ 8.) Plaintiff states that while he does not recall all of the
questions he was asked, “[he] specifically [does] not recall being asked about
whether [he] had any existing claims or lawsuits.” (Id. ¶ 9.) “To the extent [he]
was asked about claims or lawsuits, [he] must not have understood what [he]
was being asked.” (Id.) Plaintiff admits that he knew, as of March 31, 2012, of
the pendency of this litigation against Defendants, his former employer and its
principals. (Id. ¶ 10.) He states, “Had I been asked about the existence of
pending litigation, or understood that information was being requested, I would
have disclosed the existence of the litigation against my former employer. At
the time, I did not understand my obligation to disclose, or that I was being
asked to disclose the existence of my law suit [sic] against my former
employer.” (Id.) Plaintiff’s bankruptcy petition was filed on April 2, 2012.
(Id. ¶ 11.)
This evidence of lack of bad intent is bolstered by the fact that Plaintiff’s
counsel in this action, upon discovery of Plaintiff’s failure to disclose his claims
against Defendants in the bankruptcy action, acted immediately and persistently
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to rectify that omission. On May 21, 2012, Plaintiff, for the first time, informed
his counsel in this litigation, Dean R. Fuchs (“Fuchs”), of the pendency of his
bankruptcy petition. (Id. ¶ 12.) Fuchs immediately accessed Plaintiff’s
bankruptcy petition via PACER to ascertain whether his claims in this litigation
had been disclosed. (Decl. of Dean R. Fuchs (“Fuchs Decl.”), Dkt. [71] ¶ 4.)
Upon discovery that Plaintiff’s claims had not been identified in the bankruptcy
petition or related schedules, Fuchs immediately faxed a letter to Plaintiff’s
bankruptcy counsel, informing the latter of the omission and requesting that he
amend the bankruptcy petition and schedules to identify the claims against
Defendants in this case. (Id. ¶ 5; see also Fuchs Decl., Ex. A (May 21, 2012
letter from Fuchs to Brain M. Schockley), Dkt. [71] at 6 (“Regrettably,
[Plaintiff] did not identify his pending litigating against [Defendants] in Section
4 of his Statement of Financial Affairs, and I request your assistance in the
filing of an Amended Statement of Financial Affairs so as to identify the
pending litigation.”).) Fuchs followed up with Plaintiff’s bankruptcy counsel
about the issue on May 25, 2012 and again on June 8, 2012.
The evidence also shows that on May 22, 2012, Plaintiff and Fuchs
notified the bankruptcy trustee of Plaintiff’s claims against Defendants. (Pl.’s
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Decl., Dkt. [70] ¶ 13; Fuchs Decl., Dkt. [71] ¶ 6; Fuchs Decl., Ex. B (May 22,
2012 Letter from Fuchs to Adam M. Goodman), Dkt. [71] at 11 of 20
(“Regrettably, [Plaintiff] did not identify his pending litigation against
[Defendants] in Section 4 of his Statement of Financial Affairs, or in Schedule
B reflecting his personal property. I have requested the assistance of Brian M.
Schockley, Esq., the Debtor’s Bankruptcy counsel, to file amended schedule of
assets and an amended Statement of Financial Affairs so as to identify the
pending litigation . . . .”).) Plaintiff’s proposed repayment plan in his
bankruptcy proceeding was never confirmed and his debts were never
discharged, as his bankruptcy petition ultimately was dismissed. (Pl.’s Decl.,
Dkt. [70] ¶ 21.)
In light of the foregoing evidence, the Court finds that estopping Plaintiff
from pursuing his claims in this case would be unduly harsh. It does not appear
to the Court that Plaintiff’s nondisclosure of his claims against Defendants was
“calculated to make a mockery of the judicial system.” Plaintiff avers that he
was unaware or did not understand his obligation to disclose the pendency of
this suit in his bankruptcy petition and that his nondisclosure was therefore
inadvertent. The evidence shows that upon learning of Plaintiff’s failure to
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disclose this suit, Plaintiff’s counsel in this litigation immediately sought to
correct the nondisclosure by contacting Plaintiff’s bankruptcy counsel, on
several occasions, and the bankruptcy trustee, directly. At this time Plaintiff
also informed the bankruptcy trustee of the existence of this litigation.
The Court also notes that Plaintiff gained no advantage from his
nondisclosure because his bankruptcy petition was dismissed without
discharging his debts. The Eleventh Circuit has declined to apply judicial
estoppel, despite a plaintiff’s failure to disclose a claim in her bankruptcy
proceeding, in a case where the bankruptcy court never discharged the
plaintiff’s debts. Strauss v. Rent-A-Center, Inc., 192 F. App’x 821, 823 (11th
Cir. 2006). The court reasoned, “Strauss was not successful in ‘persuading a
tribunal to accept the earlier position, so that judicial acceptance of the
inconsistent position in a later proceeding creates the perception that either
court was misled.’” Id. (quoting Burnes, 291 F.3d at 1285). The court
distinguished Barger, the case relied on by Defendants in this case, on grounds
that in Barger, “(1) the debtor intentionally misled the bankruptcy court as to
the existence and then character of her employment lawsuit, and (2) the debtor’s
success at concealing the true character of her lawsuit from the bankruptcy
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court resulted in a bankruptcy court ordered discharge of all her debts.” Id.
(citing Barger, 348 F.3d at 1289).
In sum, for the foregoing reasons, the Court in its discretion declines to
estop Plaintiff from pursuing the claims in his Complaint. Defendants’ Motion
for Summary Judgment on the basis of judicial estoppel therefore is DENIED.
The Court now considers Defendants’ alternative arguments that certain of
Plaintiff’s claims fail as a matter of law.
B.
Count I claims for overtime compensation under the FLSA arising
after March 21, 2011
Defendants move for summary judgment on any claim for overtime
compensation arising after March 21, 2011. (Defs.’ Mem., Dkt. [59-1] at 14.)
In response, Plaintiff states that he is not seeking overtime compensation from
Defendants for work performed after that date.1 (Pl.’s Br. in Opp’n to Defs.’
Mot. for Summ. J. (“Pl.’s Opp’n Br.”), Dkt. [69] at 13.) Accordingly,
Defendants’ Motion for Summary Judgment is GRANTED as to any claim for
overtime compensation arising after March 21, 2011.
1
Indeed, Plaintiff admits that he was paid for any overtime worked after March
21, 2011. (Pl.’s Resp. to Defs’ SMF, Dkt. [67] ¶ 26.) Thus, he admits he is not
seeking to recover overtime after March 21, 2011 as part of Count I. (Id. ¶ 27.)
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C.
Count II claim for quantum meruit/unjust enrichment
Defendants move for summary judgment on Plaintiff’s Count II claim for
quantum meruit/unjust enrichment in its entirety. (Defs.’ Mem., Dkt. [59] at
14-17.) Plaintiff has not responded to Defendants’ motion with respect to this
claim. (See generally Pl.’s Opp’n Br., Dkt. [69].)
In Count II, Plaintiff seeks to recover for allegedly uncompensated nonovertime work. Plaintiff alleges, “To the extent that Plaintiff performed any
services for Defendants for which he was not compensated, but which did not
result in Plaintiff working more than 40 hours per week, Defendants have been
unjustly enriched by receiving the benefit of Plaintiff’s services at a rate of total
compensation below that to which the Plaintiff agreed to work.” (Compl., Dkt.
[1-1] ¶ 41.) Thus, Plaintiff seeks to recover for work performed in weeks when
he allegedly was compensated for less than 40 hours of work. (Defs.’ SMF,
Dkt. [67] ¶ 29; Pl.’s Resp. to Defs.’ SMF, Dkt. [67] ¶ 20.)
The essential elements of a claim for quantum meruit under Georgia law
are “(1) the performance of valuable services; (2) accepted by the recipient or at
his request; (3) the failure to compensate the provider would be unjust; and (4)
the provider expected compensation at the time services were rendered.”
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Amend v. 485 Properties, 627 S.E.2d 565, 567 (Ga. Ct. App. 2006). Similarly,
to prevail on a claim for unjust enrichment, a plaintiff must show that “a benefit
[has been] conferred which would result in an unjust enrichment unless
compensated.” Cochran v. Ogletree, 536 S.E.2d 194, 196 (Ga. Ct. App. 2000).
Defendants move for summary judgment on grounds that there is no evidence in
the record that Plaintiff was not fully compensated for non-overtime work.
(Defs.’ Mem., Dkt. [59-1] at 14-17.) In other words, Defendants contend that
Plaintiff has failed to show that it conferred any benefit on Defendants (in the
form of non-overtime work) for which it was not compensated. The Court
agrees.
It is undisputed that Plaintiff was paid by Defendant Resurgens every two
weeks. (Pl.’s Resp. to Defs.’ SMF, Dkt. [67] ¶ 30.) The only evidence Plaintiff
cites in support of his claim that he was not fully compensated for non-overtime
work are payroll records for the periods between July 31, 2011 and August 13,
2011 and August 14, 2011 and August 27, 2011, indicating that Plaintiff was
compensated for 79.62 (as opposed to 80) hours of work performed during both
of these periods. (Pl.’s Resp. to Defs.’ SMF, Dkt. [67] ¶¶ 33-37; June 6, 2012
Dep. of Yelennis Paez (“Paez Dep.”), Ex. 3, Dkt. [65-3] at 37-38 of 40.)
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Plaintiff, however, has failed to produce any evidence that he, in fact, worked
more than 79.62 hours during these two periods and therefore was not
compensated for non-overtime work performed. Accordingly, this evidence
does not show that Plaintiff performed work for which he was not compensated.
Absent such evidence, the Court agrees with Defendants that Plaintiff’s Count
II claim fails as a matter of law. Defendants’ Motion for Summary Judgment
therefore is GRANTED on Count II.
D.
Claims against Defendants McAdams and Yingling
Finally, Defendants move for summary judgment on Plaintiff’s FLSA
claims against Defendants McAdams and Yingling, arguing that these
Defendants are not “employers” within the meaning of the FLSA and therefore
not subject to individual liability thereunder. (Defs.’ Mem., Dkt. [59-1] at 1721, 22-23.) The Court considers Defendants’ arguments regarding McAdams
and Yingling in Part III.C., infra, where it considers Plaintiff’s Motion for
Summary Judgment on the issue of whether these Defendants were “employers”
under the FLSA.
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III.
Plaintiff’s Motion for Partial Summary Judgment [55]
As stated in the Background section, supra, Plaintiff moves for summary
judgment on the following claims and issues: (1) whether the Individual
Defendants were Plaintiff’s “employers” within the meaning of the FLSA; (2)
whether Defendants are liable under Count I for unpaid overtime compensation
under the FLSA; (3) whether Defendants, therefore, are also liable for
liquidated damages, costs, and attorney’s fees under the FLSA; (4) whether
Defendants’ violation of the FLSA was “willful”; and, finally, (5) whether
Defendants violated the FLSA’s record-keeping requirements. The Court
considers, first, whether Plaintiff is entitled to judgment as a matter of law on
his Count I claim for overtime compensation. Resolution of this issue may
resolve several other issues raised by Plaintiff—namely, whether Defendants
are liable for liquidated damages, costs, and attorney’s fees under the FLSA and
whether their violation of the FLSA (if any) was “willful.” The Court then
considers whether the Individual Defendants are “employers” subject to the
FLSA. Finally, the Court considers Plaintiff’s claim that Defendants violated
the FLSA’s record-keeping requirements.
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A.
Count I claim for overtime compensation under the FLSA2
“Under the FLSA, an employer may not employ his employee for a
workweek longer than forty hours unless his employee receives overtime
compensation at a rate not less than one and a half times his regular rate.” Allen
v. Bd. of Pub. Educ., 495 F.3d 1306, 1314 (11th Cir. 2007) (citing 29 U.S.C. §
207(a)(1)). “A person is employed if he or she is suffered or permitted to
work.” Id. (citing 29 U.S.C. § 203(g)). “It is not relevant that the employer did
not ask the employee to do the work. The reason that the employee performed
the work is also not relevant. If the employer knows or has reason to believe
that the employee continues to work, the additional hours must be counted.” Id.
(internal quotes and citation omitted).
Thus, to prevail on his claim for unpaid overtime compensation under the
FLSA, Plaintiff must prove that he “was suffered or permitted to work without
compensation.” Id. (citing 29 U.S.C. § 201 et seq.). “Courts have interpreted
this to mean that a FLSA plaintiff must demonstrate that (1) he or she worked
overtime without compensation and (2) the [employer] knew or should have
2
As stated in Part II.B., supra, Plaintiff’s Count I claim for overtime under the
FLSA is limited to overtime hours allegedly worked and uncompensated on or before
March 21, 2011.
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known of the overtime work.” Id. (citations omitted). See also 29 C.F.R. §
785.11:
Work not requested but suffered or permitted to work is work time.
For example, an employee may voluntarily continue to work at the
end of the shift. He may be a pieceworker, he may desire to finish
an assigned task or he may wish to correct errors, paste work
tickets, prepare time reports or other records. The reason is
immaterial. The employer knows or has reason to believe that he
is continuing to work and the time is working time.
The Court considers these two elements in turn.
1.
Performance of overtime work without compensation
The plaintiff-employee bears the burden of proof on the issue of whether
he or she worked overtime without compensation. Allen, 495 F.3d at 1314
(citing Anderson v. Mt. Clemens Pottery, Inc., 328 U.S. 680, 687 (1946),
superceded by statute on other grounds). “The remedial nature of [the FLSA]
and the great public policy which it embodies, however, militate against making
that burden an impossible hurdle for the employee.” Anderson, 328 U.S. at
687. Indeed, “[i]t is the employer’s duty to keep records of the employee’s
wages, hours, and other conditions and practices of employment,” and it is the
employer “who is in position to know and produce the most probative facts
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concerning the nature and amount of work performed.” Allen, 495 F.3d at 1314
(citing Anderson, 328 U.S. at 687).
In cases where the employer has kept proper and accurate records of its
employees’ hours, the plaintiff-employee may discharge his or her burden of
proof simply by producing those records. Anderson, 328 U.S. at 687. “But
where the employer’s records are inaccurate or inadequate and the employee
cannot offer convincing substitutes a more difficult problem arises.” Id. The
Supreme Court has recognized that in such situations,
The solution . . . is not to penalize the employee by denying him
any recovery on the ground that he is unable to prove the precise
extent of uncompensated work. Such a result would place a
premium on an employer’s failure to keep proper records in
conformity with his statutory duty; it would allow the employer to
keep the benefits of an employee’s labors without paying due
compensation as contemplated by the [FLSA].
Id. Thus, the Supreme Court has held that in such situations, the plaintiffemployee discharges 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
reasonable inference.” Id. “The burden then shifts to the employer to come
forward with evidence of the precise amount of work performed or with
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evidence to negative the reasonableness of the inference to be drawn from the
employee’s evidence.” Id. at 687-88. “If the employer fails to produce such
evidence, the court may then award damages to the employee, even though the
result be only approximate.” Id. at 688.
As a threshold matter, Plaintiff contends that the employment records
generated by Defendants do not reflect the number of hours Plaintiff worked. It
is undisputed that prior to July 2010, Resurgens used a time-clock mechanism
to record employees’ hours, which required employees to “swipe” companyissued identification cards that contained magnetic strips. (Defs.’ Resp. to Pl.’s
SMF, Dkt. [66-1] ¶ 48.) Plaintiff testified, however, that he was instructed by
his immediate supervisor at Resurgens, Vice President Roy Callahan, to “swipein” at 8:30 a.m. and “swipe-out” at 5:30 p.m., even if Plaintiff continued
working after 5:30 p.m. (Pl.’s SMF, Dkt. [55-2] ¶ 51; Pl.’s Dep., Dkt. [50] at
67:23-68:6.) Plaintiff testified that the reason given for this instruction was that
Resurgens does not pay overtime. (Pl.’s Dep., Dkt. [50] at 68:24-69:1.)
(Defendants dispute or deny the two foregoing factual assertions. (“Defs.’
Resp. to Pl.’s SMF, Dkt. [66-1] ¶ 51.)) It is undisputed that the records
generated from the time-clock system are now illegible and of limited utility.
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(Defs.’ Resp. to Pl.’s SMF, Dkt. [66-1] ¶ 52.) Defendants contend that this is
due to “errors in the old time clock system outside of Defendants’ control.”
(Id.)
It is further undisputed that on or about July 26, 2010, Resurgens began
using new timekeeping software called “Qquest,” a computerized time clock
used to track employee time. (Defs.’ Resp. to Pl.’s SMF, Dkt. [66-1] ¶ 53.)
Under this system, employees use a user-ID to log into a computer when they
arrive in the morning and log out when they leave. (Id. ¶ 54.) Plaintiff
challenges the accuracy of the records generated by the Qquest system. In
particular, Plaintiff has presented evidence that at some point in time, the
Qquest system was programmed such that it would automatically default to a
maximum of 8.0 hours for each workday, regardless of the number of hours
actually worked on that day. (E.g., Pl.’s SMF, Dkt. [55-2] ¶¶ 60-67; June 6,
2012 30(b)(6) Dep. of Resurgens Risk Management (Vincent Harris) (“Harris
Dep.”), Dkt. [55-13] at 66:9-72:5.)
In addition to challenging the accuracy of the records of Plaintiff’s
working time, Plaintiff has presented evidence that he, in fact, worked overtime
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for which he was not compensated.3 It is undisputed that Resurgens’s normal
business hours are 8:30 a.m. to 5:30 p.m. (Defs.’ Resp. to Pl.’s SMF, Dkt. [661] ¶ 25.) Plaintiff testified in his deposition, however, that he often began his
work day before 8:30 a.m. and ended his workday after 5:30 p.m. (E.g., June 4,
2012 Dep. of Michael J. Stuart (“Pl.’s Dep.”), Dkt. [50] at 112-116; 118:6-14.)
For example, Plaintiff testified that the annual open enrollments for Resurgens’s
local government clients occasionally required Plaintiff to begin his work day
before 8:30 a.m. and end after 5:30 p.m. to accommodate the work schedules of
those clients’ employees. (Pl.’s SMF, Dkt. [66-1] ¶ 33; Pl.’s Dep., Dkt. [55] at
136:20-139:9; 142:14-143:9.) Similarly, when Resurgens had a deadline to
respond to an RFP, Plaintiff testified that he could not leave the office at 5:30
p.m. but had to stay and work into the evening hours until the RFP was
completed. (Pl.’s SMF, Dkt. [55-2] ¶ 32; Pl.’s Dep., Dkt. [50] at 111:16112:14; 114:11-116:13.)
3
The following is not an exhaustive account of the evidence presented by
Plaintiff but is only illustrative.
26
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Defendants, however, have presented evidence that Plaintiff did not work
overtime hours for which he was not compensated.4 In particular, Defendants
dispute Plaintiff’s testimony that he often worked before 8:30 a.m. and after
5:30 p.m. (Defs.’ Statement of Additional Material Facts Which Present A
Genuine Issue For Trial (“Defs.’ Statement of Additional Material Facts” or
“Defs.’ SAF”), Dkt. [66-2] ¶¶ 1-3.)5 Defendants have presented testimony of
Burks and Yingling, in addition to the testimony of other employees, that
Plaintiff was never seen in the office before 8:30 a.m., after 5:30 p.m., or on the
weekends, or regularly was seen leaving the office at 5:30 p.m. (Id.)
Additionally, Defendants have presented evidence that on the limited occasion
when Plaintiff would have to work after 5:30 p.m., Resurgens either paid
Plaintiff for the resulting overtime or permitted him to take time off in the same
week to avoid working overtime. (Id. ¶¶ 4, 9, 11-12.) Yingling testified that he
never refused to authorize the payment of overtime to Plaintiff after Plaintiff
4
The following is not an exhaustive account of Defendants’ evidence but is
merely illustrative.
5
The Court notes that Plaintiff did not file a response to Defendants’ Statement
of Additional Material Facts.
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indicated that he had worked overtime. (Defs.’ SAF, Dkt. [66-2] ¶ 25; Aug. 29,
2012 Dep. of Wayne Yingling (“Yingling Dep.”), Dkt. [66-5] at 43:2-10.)
Viewing the evidence in the record in the light most favorable to
Defendants, the non-movants, the Court cannot rule as a matter of law that
Plaintiff worked overtime hours for which he was not compensated. For this
reason, Plaintiff is not entitled to summary judgment on his Count I claim for
overtime compensation under the FLSA.
2.
Defendants’ knowledge of the overtime work
In light of the Court’s ruling in sub-section 1, supra, finding genuine
issues of material fact as to whether Plaintiff worked overtime for which he was
not compensated, the Court need not consider the second element of Plaintiff’s
claim—whether Defendants knew or should have known of Plaintiff’s
uncompensated overtime work.6 Plaintiff’s Motion for Summary Judgment on
6
While the Court need not address it, Defendants appear to have presented
sufficient evidence to withstand a motion for summary judgment on this issue. For
example, Defendants have presented evidence that Resurgens employees were
instructed not to work unapproved overtime and were disciplined for beginning work
prior to 8:30 a.m. and continuing to work past 5:30 p.m. without authorization.
(Defs.’ SAMF, Dkt. [66-2] ¶¶ 26-29, 32.) Defendants have also presented evidence
that Plaintiff was compensated for overtime work when Resurgens was aware of it,
and that Resurgens was not aware of any overtime work apart from the work for
which Plaintiff was compensated. (Defs.’ Resp. to Pl.’s SMF, Dkt. [66-1] ¶ 47; Defs.’
SAMF, Dkt. [66-2] ¶¶ 19-25.)
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Count I is DENIED.
B.
Whether Plaintiff is entitled to liquidated damages, costs, and
attorney’s fees under the FLSA and whether Defendants’ violation
of the FLSA was “willful”
In light of the Court’s ruling in Part III.A., supra, that genuine issues of
material fact preclude the Court from ruling on Plaintiff’s FLSA claim as a
matter of law, the Court cannot find as a matter of law that Plaintiff is entitled
to liquidated damages, costs, or attorney’s fees or that Defendants’ violation of
the FLSA (if any) was willful. Accordingly, Plaintiff’s Motion for Summary
Judgment on these issues is DENIED.
C.
Whether the Individual Defendants are “employers” under the
FLSA
As stated in the Background section, supra, Plaintiff moves for summary
judgment on the issue of whether the Individual Defendants are “employers”
under the FLSA. (Pl.’s Mem., Dkt. [55-1] at 19-22.) Defendants do not dispute
that Burks was Plaintiff’s “employer” within the meaning of the FLSA. (Defs.’
Resp. in Opp’n, Dkt. [66] at 2.) Accordingly, Plaintiff’s Motion for Summary
Judgment is GRANTED insofar as the Court finds as a matter of law that
Defendant Burks was Plaintiff’s “employer” under the FLSA. Defendants,
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however, dispute that McAdams and Yingling were Plaintiff’s “employers” and
cross-move for summary judgment on these issues. (Defs.’ Mem., Dkt. [59-1]
at 17-21, 22-23.)
1.
Legal Principles
Defendants McAdams and Yingling cannot be held personally liable
under the FLSA unless they are “employers” within the meaning of the FLSA.
Perez v. Sanford-Orlando Kennel Club, Inc., 515 F.3d 1150, 1159 (11th Cir.
2008) (citing 29 U.S.C. § 207(a)(1)). The FLSA broadly defines “employer” as
“any person acting directly or indirectly in the interest of an employer in
relation to an employee . . . .” 29 U.S.C. § 203(d). “Whether an individual falls
within this definition does not depend on technical or isolated factors but rather
on the circumstances of the whole activity.” Perez, 515 F.3d at 1159 (internal
quotes and citation omitted). A plaintiff may simultaneously be an employee of
multiple employers. 29 C.F.R. § 791.2.
In determining whether an individual is an employer under the FLSA, the
court must examine the facts “in light of the ‘economic reality’ of the
relationship between the parties.” Villarreal v. Woodham, 113 F.3d 202, 205
(11th Cir. 1997) (quoting Goldberg v. Whitaker House Co-op, Inc., 366 U.S.
30
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28, 33 (1961)). The Eleventh Circuit has provided several factors to consider
under the economic-reality test in determining whether a person is an employer
under the FLSA: whether the alleged employer (1) had the power to hire and
fire employees, (2) supervised and controlled employee work schedules or
conditions of employment, (3) determined the rate and method of payment, and
(4) maintained employment records. Id.
In addition to the four-factor test provided by Villarreal, the cases
provide several additional guideposts in the determination of employer status
under the FLSA. First, “[t]he overwhelming weight of authority is that a
corporate officer with operational control of a corporation’s covered enterprise
is an employer along with the corporation, jointly and severally liable under the
FLSA for unpaid wages.” Patel, 803 F.2d at 637-38. “To be personally liable,
an officer must either be involved in the day-to-day operation or have some
direct responsibility for the supervision of the employee.” Patel, 803 F.2d at
638 (emphasis added). Thus, in Patel, the Eleventh Circuit held that the
individual defendant, who was the President, director, and principal stockholder
of the corporate defendant, was not an “employer” under the FLSA because he
did not “have operational control of significant aspects of [the company’s] day31
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to-day functions, including compensation of employees or other matters in
relation to an employee.” Id. at 638. The Court also noted that the relevant
inquiry for purposes of individual liability under the FLSA is not the degree of
control the individual defendant could have exercised but, rather, the degree of
control that actually was exercised. See Perez, 515 F.3d at 1161 (“While
acknowledging that the defendant in Patel could have, if he had chosen, played
a greater role in the operations of the company, we focused on the role that he
did play in concluding that he ‘lacked the operational control necessary for the
imposition of liability as an ‘employer’ under the FLSA.’” (quoting Patel, 803
F.2d at 638).)
Second, employer status under the FLSA is most strongly demonstrated
where the individual has control over the policies or conduct that allegedly
violates the FLSA. See Freemon v. Foley, 911 F. Supp. 326, 331 (N.D. Ill.
1995) (“[E]ven if a defendant does not exercise exclusive control over all the
day-to-day affairs of the employer, so long as he or she possesses control over
the aspect of employment alleged to have been violated, the FLSA will apply to
that individual.”). Utilizing these legal principles, the Court considers whether,
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as a matter of law, McAdams and/or Yingling are “employers” within the
meaning of the FLSA.
2.
McAdams
It is undisputed that McAdams is President and COO of Resurgens and
the supervisor of the property and casualty division. It is further undisputed
that Plaintiff worked in the employee benefits division, which was supervised
by Yingling. Defendants argue that McAdams is not an “employer” under the
FLSA because he did not exercise sufficient control over Plaintiff’s
employment. (Defs.’ Mem., Dkt. [59-1] at 19.) In support of this argument,
Defendants have presented evidence that McAdams exercised operational
control only over the property and casualty department of Resurgens and,
therefore, only over the employees of that department. (Id.) For example,
Yingling testified that while McAdams could exercise authority over the
employee benefits department, he did not do so. (Aug. 29, 2012 Dep. of Wayne
Yingling (“Yingling Dep.”), Dkt. [59-8] at 25:25-26:1 (“[McAdams] could
exercise authority over my department, yes. Did he, no.”).) Defendants have
also presented evidence that McAdams was not responsible for setting
Plaintiff’s work schedule, setting the conditions of Plaintiff’s employment,
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making decisions regarding Plaintiff’s compensation, or approving or
authorizing the payment of overtime to Plaintiff. (Decl. of Ronald McAdams
(“McAdams Decl.”), Dkt. [59-9] ¶¶ 11-14.) McAdams declares that he did not
supervise Plaintiff or exercise authority over employees in the employee
benefits department. (Id. ¶ 9-10.)
Plaintiff argues, on the contrary, that McAdams is an “employer” under
the FLSA because, as President and COO of Resurgens, he had day-to-day
operational control over the company, not just the property and casualty
division. (Pl.’s Br. in Opp’n to Defs.’ Mot. for Summ. J. (Pl.’s Opp’n Br., Dkt.
[69] at 17-18.) In support of this argument, Plaintiff points to the following
deposition testimony of Vincent Harris, Resurgens’s Business Development
Manager:
Q:
And can we agree, sir, that Mr. Burks has day to day
operational control over [Resurgens]?
A:
No, Ron McAdams as president is chief operating officer.
Day to day control is his responsibility. [Mr. Burks] is in his
office, he’s there. But Ron’s responsibility is operations day
to day.
Q:
Okay. So let’s start with Mr. McAdams, then. Can we agree
Mr. McAdams then has day to day operational control over
[Resurgens]?
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A:
Yes.
Plaintiff also points to the deposition testimony of Yingling, stating that
McAdams was involved in the day to day operation of the company. (Pl.’s
Resp. to Defs.’ SMF, Dkt. [67] ¶ 41.) Indeed, Yingling testified as follows:
Q:
. . . Do you know if Mr. McAdams was ever involved in
setting or determining employee schedules?
A:
Yes.
Q:
Does Mr. McAdams have the authority to hire or fire
employees?
A:
Yes.
Q:
Have you ever known Mr. McAdams to ever hire or fire
employees?
A:
Yes.
Q:
Was that true during the period of time [Plaintiff] was
employed by Resurgens?
A:
Yes.
Q:
Does Mr. McAdams have authority to set or determine
compensation for Resurgens employees?
A:
Yes.
Q:
Does Mr. McAdams as president of the company have
authority to contract with vendors?
35
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A:
Yes.
Q:
And have you known him to actually do that?
A:
Yes.
Q:
And did he have that authority and exercise that authority
during the period of time [Plaintiff] was employed there?
A:
Yes.
(Yingling Dep., Dkt. [58] at 26:2-27:3.)
Plaintiff has also presented evidence that McAdams exercised authority
with respect to the conditions of Plaintiff’s employment, itself. Plaintiff
contends that in late July or early August 2009, he spoke with McAdams about
the fact that he and a co-worker had not received a pay raise when everyone else
in the company had. (Stuart Decl., Dkt. [70] ¶ 23.) Plaintiff contends that
McAdams promised to “look into it” and “get back to [Plaintiff]” and that, as a
result of the meeting with McAdams, Plaintiff received the pay raise in October
2009. (Id. ¶¶ 23-224.) Plaintiff also contends that McAdams was directly
involved in administering quarterly bonus payouts for employees who met
certain sales performance criteria, including Plaintiff. (Id. ¶ 25.) Finally,
Plaintiff contends that McAdams made decisions regarding working hours that
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were applicable to all employees, including Plaintiff—for example, regarding
when hourly employees could leave the office before 5:30 p.m. (Id. ¶¶ 26-27.)
In light of the conflicting evidence presented above, the Court cannot rule
as a matter of law that McAdams was or was not an “employer” within the
meaning of the FLSA. In particular, genuine issues of material fact exist as to
whether McAdams had direct responsibility for the supervision of Plaintiff.
Issues of fact also exist regarding the extent of McAdams’s control over the
day-to-day operations of the company as a whole, as opposed to merely the
property and casualty division, which he supervised.
For example, although Harris testified that McAdams had day to day
control over the operations of Resurgens, McAdams himself declared that he
only had control over the property and casualty division of the company, in
which Plaintiff did not work. Moreover, while Yingling testified to
McAdams’s authority with respect to hiring and firing employees and setting
their compensation, it is not clear whether this authority is limited to the
property and casualty division or whether it extends to the company as a whole.
Indeed, immediately preceding his testimony regarding this authority, Yingling
testified as follows:
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AO 72A
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Q:
Did McAdams, to your knowledge, ever supervise
[Plaintiff]?
A:
Not to my knowledge.
Q:
And is that because—is that because he supervised a
different group or—
A:
Primarily—yeah, my responsibility is employee benefits,
generally [McAdams]’s is property casualty employees.
(Yingling Dep., Dkt. [58] at 25:14-21.)
As stated in the Background section, supra, it is also undisputed that
Burks, the CEO of Resurgens, has day-to-day operational and supervisory
control over Resurgens. It is undisputed he has the authority to hire and fire
employees and to set their compensation and work schedules, and that he has
exercised this authority. The parties agree that everything that happens at
Resurgens is Burks’s ultimate responsibility. (See Background section, supra.)
In light of the conflicting evidence regarding the extent to which
McAdams supervised Plaintiff and/or exercised day-to-day operational control
over Resurgens, the Court cannot rule as a matter of law that McAdams is or is
not an “employer” under the FLSA. Plaintiff’s and Defendants’ Motions for
Summary Judgment therefore are DENIED with respect to this issue.
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3.
Yingling
It is undisputed that Yingling is Vice President of Resurgens and
supervisor of the employee benefits division, the division in which Plaintiff was
employed. It is further undisputed that Yingling had day-to-day operational
control over this division, including the authority to set the compensation of
employees in the division and to hire or fire those employees. Indeed, it is
undisputed that when Resurgens reduced its workforce, Yingling selected the
employees from the employee benefits department who would be terminated,
including Plaintiff.
Defendants, nonetheless, argue that Yingling is not an “employer” under
the FLSA because his authority was ultimately subject to the superior authority
of Burks. (Defs.’ Opp’n Br., Dkt. [66] at 6.) Defendants point to evidence that
Yingling did not have authority to approve overtime hours for Plaintiff without
the express approval of Burks, and point out that Yingling does not have an
ownership interest in the company. (Id. at 6 (citing Yingling Dep., Dkt. [58] at
40:8-13, 18:3-5).) Defendants argue, “In short, even though Yingling had
operational control over the department where Plaintiff worked, Yingling did
not have final authority with respect to overtime.” (Id.)
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Even if Burks had ultimate authority with respect to the payment of
overtime, Yingling had sufficient responsibility over Plaintiff’s employment to
qualify as an “employer” under the FLSA. As stated immediately above, it is
undisputed that Yingling had the authority to determine the compensation of
employees in the employee benefits division, including Plaintiff, and to hire or
fire those employees. It is undisputed that Yingling decided to terminate
Plaintiff when Resurgens downsized. The evidence also shows that while
Yingling may not have had authority to authorize overtime without the approval
of Burks, his authorization was required for an employee in his division to work
overtime. (See Yingling Dep., Dkt. [58] at 41:6-10 (“Q: Now, you see the
language in bold [in the Resurgens overtime policy] that says your supervisor
must approve all overtime? What does that mean to you? A: That if one of my
employees was going to work overtime that they would have to have my
approval.”). This evidence demonstrates that Yingling had sufficient
responsibility for the terms and conditions of Plaintiff’s employment to
constitute an “employer” under the FLSA. Accordingly, Plaintiff’s Motion for
Summary Judgment on the issue of whether Yingling is an “employer” under
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the FLSA is GRANTED and Defendants’ Motion for Summary Judgment on
the same issue is DENIED.7
D.
Whether Defendants violated their FLSA record-keeping
obligations
Finally, Plaintiff moves for summary judgment on its claim that
Defendants violated their obligations under the FLSA to “preserve certain
payroll records, including records reflecting the hours worked by each
employee each workday and the total hours worked each workweek for a period
of three years.” (Pl.’s Mem., Dkt. [55-1] at 22 (citing 29 C.F.R. §§ 561.2(a)(7),
516.5(a)).) In response, Defendants first argue there is no private right of action
under the FLSA for alleged record-keeping violations. (Defs.’ Opp’n Br., Dkt.
[66] at 22-23.) Defendants also contend that Plaintiff has failed to show, as a
matter of law, that such violations occurred. (Id. at 23-24.)
The Court agrees with Defendants that no private right of action exists
under the FLSA for alleged record-keeping violations. See, e.g., Contreras v.
Lara’s Trucks, Inc., No. 1:12-cv-85-TWT, 2013 WL 163648, at *3 (N.D. Ga.
7
As Defendants argue, however, Plaintiff’s claim for unpaid overtime
compensation against Yingling is limited to overtime hours worked (if any) on or after
June 1, 2010, the date Yingling began his employment with Resurgens. (Defs.’ Mem.,
Dkt. [59-1] at 22.)
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Jan. 14, 2013) (“If the Plaintiff intends to assert a violation of the FLSA’s
record keeping requirement as a separate cause of action, this claim fails
because there is no private right of action to enforce this provision.” (citing
cases)); Helmert v. Butterball, 805 F. Supp. 2d 655, 668 n.15 (E.D. Ark. 2011)
(“Even if [the defendant] were in violation of the FLSA’s recording
requirement for failing to record actual hours worked, the plaintiffs would not
be entitled to damages because the FLSA does not provide a private cause of
action for violations of the recording requirements.” (citing 29 U.S.C. §§
211(c), 216(b)).) Accordingly, Plaintiff’s Motion for Summary Judgment is
DENIED as to this claim.
Conclusion
In accordance with the foregoing, Defendant’s Motion for Summary
Judgment [59] is GRANTED in part and DENIED in part. It is GRANTED
with respect to any Count I claim for overtime compensation arising after
March 21, 2011 and as to Plaintiff’s Count II claim for quantum meruit/unjust
enrichment in its entirety. It is DENIED with respect to Defendants’ assertion
that Defendants McAdams and Yingling are not “employers” under the FLSA.
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Plaintiff’s Motion for Partial Summary Judgment [55] is GRANTED in
part and DENIED in part. It is GRANTED on Plaintiff’s claim that
Defendants Burks and Yingling are “employers” under the FLSA. It is
DENIED, however, with respect to Plaintiff’s claim that Defendant McAdams
is an “employer” under the FLSA. It is also DENIED with respect to Plaintiff’s
Count I claim for overtime compensation, liquidated damages, costs, and
attorney’s fees under the FLSA, and with respect to Plaintiff’s assertion that
Defendants’ violation of the FLSA was “willful.” Finally, it is DENIED with
respect to Plaintiff’s claim that Defendants violated the record-keeping
provisions of the FLSA.
SO ORDERED, this 12th
day of June, 2013.
_______________________________
RICHARD W. STORY
UNITED STATES DISTRICT JUDGE
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