Bean et al v. Doug & Matthew Home Remodeling, LLC et al

Filing 16

ORDER Denying 12 Motion for Summary Judgment and Cancelling Hearing. Signed by District Judge Thomas L. Ludington. (Sandusky, K)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
DAVID BEAN, et al.,
Plaintiffs,

Case No. 14-cv-12536

v

Honorable Thomas L. Ludington

DOUG & MATTHEW HOME REMODELING, LLC,
et al.
Defendants.
__________________________________________/
ORDER DENYING MOTION FOR SUMMARY JUDGMENT
AND CANCELLING HEARING
On June 27, 2014, Plaintiffs David Bean, Michael Harris, and Joshua Thorpe filed suit against
their former employer, Doug & Matthew Home Remodeling, LLC, and its manager Douglas
Wooding. Plaintiffs allege that Defendants violated the Fair Labor Standards Act by requiring
them to work more than forty hours per week without any overtime pay.
On March 2, 2015, Defendants filed a motion for summary judgment contending that
Plaintiffs had not established that they worked more than forty hours a week, which is part of
their prima facie case. Because Plaintiffs are entitled to rely on their own deposition testimony
to establish the factual issue of whether they worked more than forty hours a week, Defendants’
motion for summary judgment will be denied.
I.
Defendants are in the business of buying homes, repairing them, and then reselling them.
Mot. Summ. J. 2.
Each Plaintiff worked for Defendants between 2012 and 2014. Compl. ¶ 8-11. Plaintiffs
worked as general laborers, performing plumbing, roofing, drywall installation, window
installation, siding installation, and painting. Id. ¶ 13. Plaintiffs allege that they worked an
average of fifty-six hours per week, but were not paid overtime. Id. ¶ 17.

II.
A motion for summary judgment should 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 has the initial burden of identifying where to look
in the record for evidence “which it believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the
opposing party who must set out specific facts showing “a genuine issue for trial.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (citation omitted). The Court must view the
evidence and draw all reasonable inferences in favor of the non-movant and determine “whether
the evidence presents a sufficient disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.” Id. at 251-52.
III.
The Fair Labor Standards Acts compels employers to pay the federal minimum wage and
provide overtime pay to those employees covered by the Act’s overtime provisions. Jewell
Ridge Coal Corp. v. Local No. 6167, 325 U.S. 161, 167 (1945). An employer must compensate
any covered, non-exempt employee who works more than forty hours per workweek for
“employment in excess of the hours above specified at a rate not less than one and one-half times
the regular rate at which he is employed.” 29 U.S.C. § 207(a)(1). In an action by the employee
to recover unpaid wages under the FLSA, the employee “must prove by a preponderance of
evidence that he or she performed work for which he was not properly compensated.” Myers v.
Copper Cellar Corp., 192 F.3d 546, 551 (6th Cir. 1999) (citing Anderson v. Mt. Clemens Potter
Co., 328 U.S. 680, 686-87 (1946)).

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A.
In their motion for summary judgment, Defendants assert only one argument: that
Plaintiffs cannot establish that they ever worked more than forty hours in one week because they
kept no written time records:
In this case no time records were kept by anyone. It is pure speculation as to the
amount of hours Plaintiffs worked. Without being able to prove the essential
element of their case (that they worked more than 40 hours in any week) summary
judgment is not only appropriate, but required.
Defs.’ Mot. Summ. J. 5, ECF No. 12.1
In response, Plaintiffs offer their deposition testimony in which they claim that they often
worked more than forty hours a week. Plaintiff Bean provided the following typical schedule in
his deposition, in which he claimed to work at least 56 hours a week:
Q:

So tell me how your typical workweek would go.

Bean:

Monday through Thursday 8 o’clock in the morning until 8 o’clock
at night. Friday 8 o’clock in the morning until 4 o’clock in the
afternoon. And sometimes we would get called in to go to work on
weekends. We would get told we have to work later than 8 o’clock
sometimes.

Pls.’ Resp. Ex. 3 at 20, ECF No. 15. Likewise, Plaintiff Harris reiterated that a 56 hour workweek was typical:
Q:

Did you keep track of the hours that you worked in 2012 or 2013
for the Defendants?

Harris:

No. The reason I didn’t keep track is because it was 8 a.m. to 8
p.m. most generally Monday through Thursday, unless we were
asked to work over due to a job being finished up or whatever.
And then Fridays we usually worked 8 to 4. And then sometimes
we were asked to work late to burn trash from the house or to
finish a house or occasionally on a Saturday.

Pls.’ Resp. Ex. 4 at 10. As did Plaintiff Thorpe:
Q:

1

How did you keep track of your hours worked?

This is literally Defendants’ entire argument section in their brief.

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Thorpe:

We worked 8 to 8 Monday through Thursday and 8 to 4 on Friday
as a norm. And outside of that, sometimes we would—late at night
we would end up having to burn, burn items that we’re pulling out
of the houses that were burnable. And I would say three nights a
week we would end up working until 11, 12 o’clock at night
tending fire. Sometimes on the weekends he would get close to
selling a house, something would be wrong. He would call one of
his workers and send us out to whatever job site it was to fix
whatever the problem it was.

Pls.’ Resp. Ex. 5 at 16. Thus, all three Plaintiffs testified during their depositions that they
typically worked more than forty hours a week.
B.
First, contrary to Defendant’s assertion, FLSA plaintiffs are not limited to proving the
number of hours worked through contemporaneous written time records.

Not only is this

assertion contrary to Sixth Circuit precedent, but also to the Federal Rules of Civil Procedure.
See Bueno v. Mattner, 829 F.2d 1380, 1387 (6th Cir. 1987) (FLSA plaintiffs testimony can be
sufficient to satisfy their burden of proof regarding the number of hours worked); Federal Rule
of Civil Procedure 56(c)(1)(A) (a party can support a factual assertion by “citing to particular
parts of materials in the record, including depositions . . . .”) (emphasis added).
Second, courts generally may not resolve credibility disputes on summary judgment.
Dawson v. Dorman, 528 F. App’x 450 (6th Cir. 2013) (citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). But this statement presupposes that there is actually a credibility
dispute; that is, that the parties have offered conflicting evidence on the issue of credibility.
Here, Defendants have not offered any evidence to show that Plaintiffs did not work more than
forty hours in a week, nor have they offered any evidence that would undermine Plaintiffs’
credibility. Thus, for purposes of Defendants’ motion for summary judgment, there is not even a
disputed issue of fact regarding whether Plaintiffs worked more than forty hours a week.
Lastly, Plaintiffs’ estimation of the hours they worked is not so speculative as to merit
summary judgment. Courts have routinely held that “[it] is . . . a fundamental precept of the
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FLSA that an employee should not be denied recovery because proof of the number of hours
worked is inexact or not perfectly accurate.” Monroe v. FTS USA, LLC, 763 F. Supp. 2d 979,
989 (W.D. Tenn. 2011) (quoting Mendez v. Brady, 618 F. Supp. 579, 587 (W.D. Mich. 1985);
Berger v. Cleveland Clinic Found., 2007 WL 2902907, at *15 (N.D. Ohio Sept. 29). As the
Supreme Court explained: “The employer cannot be heard to complain that the damages lack the
exactness and precision of measurement that would be possible had he kept records in
accordance with the requirements of . . . the Act . . . .” Mt. Clemens, 328 U.S. at 688.
Here, Plaintiffs have produced sufficient evidence, in the form of their deposition
testimony, to establish a prima facie case that Defendants violated overtime provisions of the
FLSA. Therefore, Defendants’ motion for summary judgment will be denied.
IV.
Accordingly, it is ORDERED that Defendants’ Motion for Summary Judgment (ECF
No. 15) is DENIED.
It is further ORDERED that the motion hearing set for May 20, 2015 is CANCELLED.

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: April 15, 2015

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on April 15, 2015.
s/Karri Sandusky
Karri Sandusky, Acting Case Manager

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