TYAGI v. HOOSIER BROADBAND LLC et al

Filing 98

ORDER - GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; Now before the Court is Defendants' Motion for Summary Judgment [Dkt. 75], filed on May 23, 2022, pursuant to Federal Rule of Civil Procedure 56. For the reasons detailed, Defendants' Motion for Summary Judgment Dkt. 75 is GRANTED IN PART as to all claims brought against Defendant Sushma Tyagi and DENIED IN PART as to all claims brought against Defendants Vichitra Tyagi and Hoosier Broadband, LLC. The case shall proceed accordingly. Signed by Judge Sarah Evans Barker on 8/24/2022. *** SEE ORDER *** (CKM)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
VINITA TYAGI,

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Plaintiff,
v.
HOOSIER BROADBAND LLC, et al.,
Defendants.

No. 1:18-cv-00953-SEB-TAB

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS'
MOTION FOR SUMMARY JUDGMENT
Now before the Court is Defendants' Motion for Summary Judgment [Dkt. 75],
filed on May 23, 2022, pursuant to Federal Rule of Civil Procedure 56. Plaintiff Vinita
Tyagi (now, Singh) ("Vinita") brings this action against her former employer Defendant
Hoosier Broadband LLC ("Hoosier Broadband"), her former mother-in-law Defendant
Sushma Tyagi ("Sushma"), and her ex-husband Defendant Vichitra Tyagi ("Vichitra"),
alleging that Defendants failed to pay her the minimum wage, in violation of the Fair
Labor Standards Act (FLSA), 29 U.S.C. § 201, and failed to pay her earned wages due
and owing in a timely fashion, in violation of the Indiana Wage Claims Statute, Indiana
Code § 22-2-9-1. Defendants deny these allegations.
In her response to Defendants' Motion for Summary Judgment, Plaintiff conceded
that Defendant Sushma is entitled to summary judgment as she is not an "employer"
under the FLSA or the Indiana Wage Claims Statute. Accordingly, we GRANT
Defendants' Motion for Summary Judgment as to all claims brought against Defendant
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Sushma. However, for the reasons detailed below, Defendants' Motion for Summary
Judgment is DENIED as to all claims brought against Defendants Hoosier Broadband and
Vichitra Tyagi.
Factual Background
Current Operations of Hoosier Broadband
Defendant Hoosier Broadband provides internet service to businesses and
residences in rural areas in central, eastern, west-central, and northern Indiana. Hoosier
Broadband is operated out of a home in Zionsville, Indiana, where Vichitra resides with
his mother, Sushma, his father, Vigai Tyagi, and his brother, Aditya Tyagi. Sushma
owns Hoosier Broadband and Vichitra is the principal operator.
Vinita and Vichitra Operate Hoosier Broadband
Between 2007 and July 29, 2016, Vinita operated Hoosier Broadband with her
then-husband, Vichitra. Vinita claims that she later returned to work for Hoosier
Broadband from December 2016 through early March 2017, but Defendants deny this.
According to Vinita, throughout her employment with Hoosier Broadband, she and
Vichitra had discussions twice annually to set monthly salaries for themselves. Vinita
has testified by declaration that for the work she performed in March and April 2016, her
monthly gross salary was set at $15,666.32 for a net of $10,000, which salary was raised
to a monthly gross salary of $19,002.47 for a net of $12,000 each month beginning in
May 2016 and going forward. Vinita Decl. ¶ 8. Because it was a small, family-run
company, if, in a given month, Hoosier Broadband's cash flow would not allow it to pay

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full salaries to Vichitra and Vinita, they would pay themselves a reduced salary that
month and make up the difference in subsequent months.
Vichitra denies having these meetings with Vinita about their salaries and instead
claims that their monthly compensation was solely dependent on Hoosier Broadband's
profitability that month; thus, for the first several years, neither received any
compensation for their work for the company. As Hoosier Broadband became more
profitable, however, they paid themselves a salary each month, the amount of which
fluctuated depending on that month's profits.
While employed by Hoosier Broadband, among other duties, Vinita was
responsible for arranging payroll with the payroll clerk who worked for the Hoosier
Broadband accountant. Each month, Vinita would tell the payroll clerk the amount of net
salary to pay herself and Vichitra and the accountant calculated the amount of tax to pay
on the net amounts. Vinita's and Vichitra's salaries were direct deposited in their bank
accounts each month. According to Vichitra, he and Vinita were paid on a monthly basis
for the work that was performed within that month. In other words, the salary they were
paid in January was for the work performed in January. Vinita, on the other hand, claims
that they were paid for the work performed the month before, meaning that the salary
they were paid in January was for the work performed in December.
Salary Amounts Hoosier Broadband Paid to Vinita
For the year 2016, bank records establish that Hoosier Broadband paid Vinita the
following net salary amounts: (1) January 2016 -- $9,000; (2) February 2016 -- $10,000;
(3) March 2016 -- $5,000; (4) April 2016 -- $10,000; (5) May 2016 -- $12,000; (6) June
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2016 -- $12,000; (7) July 2016 -- $12,000. Exh. 1 to Vichitra Decl. The salary amounts
that Hoosier Broadband paid Vichitra during those months also varied. For instance, in
January 2016, Vichitra received $13,000; in March 2016, he received $7,000; and in July
2016, he was paid $14,000. Id.
As noted above, the parties dispute whether Vinita worked for Hoosier Broadband
from December 2016 through the beginning of March 2017. It is undisputed, however,
that Hoosier Broadband did not pay Vinita any salary or other wages during that time
period.
Vinita's Termination and Dispute Regarding Her Rehiring
In late July 2016, Vinita informed Vichitra that she had purchased a home and
would be moving out of their shared Zionsville residence where Hoosier Broadband was
operated. Shortly after this announcement, on July 30, 2016, Vichitra notified Vinita that
she was being terminated from Hoosier Broadband, effective July 29, 2016. Following
Vinita's termination, Vichitra hired his father and brother to replace her.
After moving out of the Zionsville residence in August 2016, Vinita filed a
petition for divorce in October 2016. Vichitra claims that Vinita was not rehired to work
for Hoosier Broadband after July 29, 2016. Vinita disputes this, claiming that she and
Vichitra briefly reconciled from December 2016 through early March 2017, during which
period she returned to work for Hoosier Broadband. Upon Vinita's rehiring, she
"perform[ed] the same work that [she] had performed prior to July 29, 2016," except that
she was not involved with the payroll because she was addressing "operational
challenges" that had arisen in her absence. Vinita Decl. ¶¶ 12, 14; Vinita Dep. at 28–30.
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Vinita testified that she worked "full time" and "pretty much" every day during January
and February 2017 and was not paid her salary either of those months. Vinita Decl. ¶ 14;
Vinita Decl. 30. She testified that, during those two months, her hours "were different,
were not like 9 to 5 or 8 to 4. It was around the clock. So the first call I could be getting
at 7:30 in the morning, and the last call I could be getting at midnight." Vinita Dep. at
30. According to Vinita, she was terminated for a second time in March 2017 after she
determined that the reconciliation would not be successful and proceeded with the
divorce.
The Instant Litigation
Vinita filed her complaint in this lawsuit on March 23, 2018, alleging that she was
not paid minimum wage in violation of the FLSA and that she was not paid wages she
was owed in violation of the Indiana Wage Claims Statute. Specifically, she claims that
Hoosier Broadband failed to pay her for any of the work she performed in July 2016,
January 2017, and February 2017, despite her working "full time" those months.
Now before the Court is Defendants' Motion for Summary Judgment, which
motion is fully briefed and ripe for ruling.
Legal Analysis
I.

Summary Judgment Standard
Summary judgment is appropriate where there are no genuine disputes of material

fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);
Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). A court must grant a motion for
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summary judgment if it appears that no reasonable trier of fact could find in favor of the
nonmovant on the basis of the designated admissible evidence. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247–48 (1986). We neither weigh the evidence nor evaluate
the credibility of witnesses, id. at 255, but view the facts and the reasonable inferences
flowing from them in the light most favorable to the nonmovant. McConnell v. McKillip,
573 F. Supp. 2d 1090, 1097 (S.D. Ind. 2008).
II.

FLSA Claim
The FLSA provides that "every employer shall pay to each of his employees who

in any workweek is engaged in commerce" the federal minimum wage, which throughout
the time period relevant to this litigation was $7.25 per hour. See 29 U.S.C. § 206(a).
Defendants do not dispute that the requirements of the FLSA apply to them or that they
were required to pay Vinita minimum wage for the work she performed. The parties do
dispute, however, whether Vinita ever performed work for Defendants for which she was
paid less than minimum wage.
Under the FLSA, Vinita bears the burden of establishing that she performed work
for Defendants for which she was not properly compensated. Melton v. Tippecanoe
Cnty., 838 F.3d 814, 818 (7th Cir. 2016). In a situation such as this where there are no
records of the employee's hours, "an employee has carried out [her] burden if [she]
proves that [she] has in fact performed work for which [she] was improperly
compensated and if [she] produces sufficient evidence to show the amount and extent of
that work as a matter of just and reasonable inference." Anderson v. Mt. Clemens Pottery
Co., 328 U.S. 680, 687 (1946), superseded on other grounds by the Portal-to-Portal Act
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of 1947, 29 U.S.C. §§ 251–62). If the employee satisfies this burden, it 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." Id. at 687–88. If the employer fails to do so, "the court may then
award damages to the employee, even though the result be only approximate." Id. at 688.
To satisfy her initial burden of proving that she performed work for which she did
not receive minimum wage, Vinita relies solely on her own testimony. Here, Vinita
claims that she was not paid any of her $12,000 salary in July 2016, despite performing
her usual work that month, and that, following her alleged rehiring in December 2016,
she worked "full time" and "pretty much" every day in January and February 2017 but
was never paid. When asked to describe her typical hours during the two-month period
she claims she worked without compensation following her rehiring, she testified that her
schedule was "not like 9 to 5 or 8 to 4. It was around the clock. So the first call I could
be getting at 7:30 in the morning, and the last call I could be getting at midnight." Vinita
Dep. at 30. She also testified that, after she was rehired, she worked in the same capacity
for Hoosier Broadband as she had previously, except that, after she was rehired, she was
no longer involved with payroll because she was instead focused on addressing a backlog
of operational issues that had arisen in her absence.
Defendants contend that they are entitled to summary judgment on Vinita's FLSA
minimum wage claim because she has not met her burden of establishing that she
performed work for Hoosier Broadband for which she was not properly compensated as
she has failed to adduce any evidence in the form of bank records or other financial
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documentation to support her claim and instead relies solely on her own self-serving
declaration to explain when and how much she should have been paid. 1 Vinita's lack of
documentary evidence and sole reliance on her own testimony and recollections to
support her FLSA claim is not necessarily fatal, however. "Relying on the employee's
recollection is permissible given the unlikelihood that an employee would keep h[er] own
records of h[er] work hours." Melton, 838 F.3d at 819. "But relying on recollection does
not mean the plaintiff may survive summary judgment where [her] recollection is flatly
refuted by other evidence in the record or [her] story is so internally inconsistent or
implausible on its face that no reasonable person would believe it.'" Id. (internal
quotation marks and citations omitted).
Defendants have presented documents showing that Vinita received a $12,000
paycheck on July 12, 2016, which is an amount significantly in excess of minimum wage.
However, they have not established through documentary or other objective evidence
whether the July 2016 paycheck Vinita received was to compensate her for work

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Defendants' argument that Vinita's declaration contradicts her prior deposition testimony and
thus cannot be considered by the Court is without merit. See Abraham v. Washington Group
Int'l, Inc., 766 F.3d 735, 741 (7th Cir. 2014) ("[A] deponent may not use an affidavit sworn to
after a deposition to contradict deposition testimony without giving a credible explanation for the
discrepancies."). While Vinita's declaration indisputably expands on her deposition testimony by
identifying for the first time the specific months in which she claims she worked without
compensation, Defendants have not shown that those averments contradict any testimony she
provided in her deposition. See Cook v. O'Neill, 803 F.3d 296, 298 (7th Cir. 2015) (holding that
affidavit that amplified rather than contradicted deposition testimony was not subject to
exclusion). The only specific contradiction between Vinita's declaration and her deposition
testimony that Defendants reference is her averment in her declaration that the work she
performed upon her rehiring was the same as that she performed prior to her July 2016
termination. In her deposition, Vinita testified that she performed the same work after she was
rehired with the exception that, she no longer performed duties related to payroll. To the extent
that this testimony is in conflict, we rely on Vinita's deposition testimony.
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performed in July 2016—which would refute Vinita's claim that she was not paid
minimum wage that month—or was, as Vinita claims, compensation for work performed
the previous month, in June. Likewise, while we understand that it may be difficult to
present documents or other objective evidence to prove a negative, to wit, that Vinita was
not rehired by Hoosier Broadband at the end of 2016, Defendants have failed to provide
any evidence beyond Vichitra's denial to contradict Vinita's testimony that she was
rehired by Hoosier Broadband in December 2016 and performed full time work in
January and February 2017 for which she was not paid. Resolving these issues will
require credibility determinations that cannot be made on summary judgment.
We therefore cannot say that Vinita's recollection of performing full time work
without compensation in July 2016, January 2017, and February 2017 is "flatly refuted"
by documentary evidence in the record, nor is her version of events so "internally
inconsistent [or] implausible on its face," that we can dismiss it as wholly unreasonable.
Seshadri v. Kasraian, 130 F.3d 798, 802 (7th Cir. 1997). Assuming that a jury believes
Vinita's testimony that she worked full time for Hoosier Broadband those three months
and was never paid, such testimony is sufficient to establish that she "in fact performed
work" for which she was improperly compensated.
With regard to the evidence required to satisfy Vinita's burden of showing "the
amount and extent" of uncompensated work she performed, "[c]ourts have routinely
found that plaintiffs' testimony estimating their daily or weekly uncompensated hours and
explaining the basis for their estimates is sufficient to meet their initial burden of proof,
especially at the summary judgment stage." Pineda v. Skinner Servs., Inc., No. CV 169

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12217-FDS, 2020 WL 5775160, at *16 (D. Mass. Sept. 28, 2020). Here, although Vinita
has not provided a specific number of hours she worked without compensation, she has
testified that she worked "full time" in each of the months that she claims she was not
paid; that after she was rehired, there was a backlog of operational issues requiring her to
work "around the clock"; and that her monthly salary "beginning in May of 2016 and
going forward" was set at a "gross salary of $19,002.47 for a net of $12,000." Vinita
Decl. ¶ 8. A reasonable jury could find based on this testimony that Vinita worked on a
regular, full-time basis for Hoosier Broadband in July 2016, January 2017, and February
2017 and that she was not compensated for any of those hours, necessarily being paid less
than minimum wage each of those weeks. This is sufficient to satisfy her initial burden
of showing "the amount and extent" of uncompensated work she performed "as a matter
of just and reasonable inference." Anderson, 328 U.S. at 687; see also Moran v. Al Basit
LLC, 788 F.3d 201, 205 (6th Cir. 2015) (holding that employees are not required to
"recall their schedules with perfect accuracy in order to survive a motion for summary
judgment").
Given the nearly complete lack of documentary evidence or corroborating witness
testimony presented by either side on summary judgment regarding any of the issues in
controversy, including documentation or witness testimony of Hoosier Broadband's
payroll practices, work records or billings/receipts from clients to document work
performed, or documentation of Vinita's rehiring, a myriad of factual issues remain for
trial, including whether the paycheck Vinita received on July 12, 2016 was for work
performed that month or the month prior, and whether Vinita was rehired by Hoosier
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Broadband in December 2016 and thereafter performed uncompensated work for the
company in January and February 2017. For these reasons, Defendants Hoosier
Broadband and Vichitra Tyagi are not entitled to summary judgment on Vinita's FLSA
claim.
III.

Indiana Wage Claims Act

Vinita asserts a state law claim against Defendants under the Indiana Wage Claims
Statute, Indiana Code § 22-2-9-1. Defendants have moved for summary judgment on this
claim as well but have presented no argument separate from the assertions of fact and
conclusions of law that they advanced regarding Vinita's FLSA claim. The Court has
concluded, for the reasons stated above, that there is a genuine issue of material fact as to
whether Vinita was compensated for all hours that she worked for Hoosier Broadband.
This factual dispute among the parties underlies Vinita's state law claim, as well as her
claim brought under the FLSA. Because Defendants have asserted no additional
evidence or argument with respect to Vinita's state law claim, their motion for summary
judgment is likewise denied as to this claim.
IV.

Conclusion
For the reasons detailed above, Defendants' Motion for Summary Judgment [Dkt.

75] is GRANTED IN PART as to all claims brought against Defendant Sushma Tyagi
and DENIED IN PART as to all claims brought against Defendants Vichitra Tyagi and
Hoosier Broadband, LLC. The case shall proceed accordingly.
IT IS SO ORDERED.
_______________________________

8/24/2022
Date: __________________________
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SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana

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Distribution:
Cameron S. Huffman
JESELSKIS BRINKERHOFF AND JOSEPH LLC
[e-mail]
Kimberly D. Jeselskis
JESELSKIS BRINKERHOFF AND JOSEPH LLC
[e-mail]
Jeffrey O. Meunier
Jeffrey O. Meunier
[e-mail]
MacKenzie Adair Watson
JESELSKIS BRINKERHOFF AND JOSEPH LLC
[e-mail]

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