Moran v. Al Basit LLC et al

Filing 26

OPINION and ORDER Granting Defendants' 17 MOTION for Summary Judgment - Signed by District Judge Judith E. Levy. (FMos)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Jeffrey Moran,
Plaintiff,

Case No. 13-cv-13625
Hon. Judith E. Levy
Mag. Judge Michael J. Hluchaniuk

v.
Al Basit, LLC, et al.,
Defendants.
________________________________/

OPINION AND ORDER GRANTING DEFENDANTS’ [17]
MOTION FOR SUMMARY JUDGMENT
This action is brought by plaintiff Jeffrey Moran against his
former employers, defendants Al Basit, LLC, Al Ghani, LLC, Zain Syed,
and Zohaib Syed. Plaintiff alleges defendants violated the Fair Labor
Standards Act of 1938, 29 U.S.C. § 201 et seq., by failing to pay him
overtime wages. This matter is before the Court on defendants’ Motion
for Summary Judgment. (Dkt. 17). Oral argument was held on July
17, 2014. For the reasons discussed below, the Court will grant the
motion.

1

I.

Background
Defendants Zohaib and Zain Syed are principals of defendants Al

Ghani, LLC and Al Basit, LLC. Al Ghani and Al Basit are Michigan
limited liability companies that own and operate two auto repair shops
under the name Auto Pro, one in Warren, Michigan and the other in
Troy, Michigan. Zain Syed manages the Warren Auto Pro. Plaintiff
Jeffrey Moran is an auto mechanic who worked at the Warren Auto Pro
from July or August 2011 until April 30, 2013.
Plaintiff interviewed with defendant Zohaib Syed on June 27,
2011, for a position as a mechanic. (Dkt. 20, Pl.’s Resp. 4). According to
plaintiff, he and Zohaib Syed agreed plaintiff would work 58 hours for
$300 per week, plus bonuses representing a share of defendants’ profits.
(Id.; Dkt. 1, Compl. ¶ 12). Plaintiff began work for defendants on July
11, 2011, primarily at the Warren AutoPro. (Dkt. 20, Pl.’s Resp. 3).
According to defendants, plaintiff was hired in August 2011 to work 30
hours per week for $300 per week. (Dkt. 17-2, Ex. 4 to Defs.’ Br. in
Support of Mot. Summ. J., Zohaib Syed Dep. 13-14).

Defendants

maintain plaintiff began work on August 17, 2011, the date reflected in
plaintiff’s first pay stub. (See Dkt. 17-6, Ex. 5 to Defs.’ Br. 2).
2

Plaintiff alleges he worked “approximately 68 hours per week on
average” for the entire period of his employment with defendant. (Dkt.
1, Compl. ¶¶ 12-13). Plaintiff testified he had to be at the shop every
Monday through Friday at 7:30 A.M., a half-hour before the shop
opened.

(Dkt. 20-3, Ex. 1 to Pl.’s Resp., Moran Dep. 44).

Plaintiff

stayed “till the work was completed,” that is, 6:30 or 7 P.M., after the
shop had closed. (Id.). Plaintiff also testified “[i]t was not unusual to be
there at 8:00 at night.” (Id. at 47). Plaintiff alleges he worked every
Saturday, again from before opening until after closing, 7:30 A.M. until
4:30 or 5 P.M. (Id. at 44). He worked “on Sundays a lot of times” as
well, although the shop was closed on Sundays. (Id. at 47).
Plaintiff testified that he worked with John Blue, the manager of
Auto Pro Warren, and at least one other mechanic at any given time.
(Id. at 45). Plaintiff did not have a key to the shop and could only get in
when Blue unlocked the shop each morning. (Id. at 47). According to
plaintiff, Zohaib Syed was never at the Warren location, and Zain Syed
was only there Wednesday afternoons. (Id. at 50-51).
Plaintiff alleges he was not compensated at the required overtime
rate for hours in excess of 40 per week. (Dkt. 1, Compl. ¶¶ 12-13; Dkt.
3

20, Pl.’s Resp. 4).

Plaintiff did “get a little extra” money from

defendants “every once in a while,” and once received a car loan from
Zain Syed. (Dkt. 20-3, Ex. 1 to Pl.’s Resp., Moran Dep. 52-54).
Defendants have submitted paystubs and timesheets showing
defendant never worked over 30 hours per week. (Dkt. 17-6, Ex. 5 to
Defs.’ Br.; Dkt. 17-8, Ex. 7 to Defs.’ Br.). Defendant Zain Syed testified
that he scheduled employees for the following week, and then kept
track of their starting and stopping times each day through a camera
system at Auto Pro Warren. (Dkt. 17-2, Ex. 1 to Defs.’ Br., Zain Syed
Dep. 50, 60). Syed wrote down employees’ starting and stopping times,
used those times to record the number of hours the employees worked,
and then discarded the paper with the starting and stopping times. (Id.
at 56-7). Defendants have also submitted an affidavit of John Blue, in
which Blue attests that plaintiff “barely worked 30 hours per week, and
never worked over 30 hours per week.” (Dkt. 17-3, Ex. 2 to Defs.’ Br.,
Blue Aff. ¶ 9).

Blue also attests that “I never opened the shop for

[plaintiff], either during the week or on the weekends, to work on
customer vehicles. Nor did Plaintiff seek, or I permit him, to work on
customer vehicles after I closed the shop to the public.” (Id. ¶ 10).
4

In response, plaintiff maintains these paystubs and timesheets do
not accurately reflect the hours he actually worked (Dkt. 20, Pl.’s Resp.
11). Moreover, plaintiff claims the timesheets are “false” and “made
solely to substantiate [defendants’] claim.” (Dkt. 20-3, Ex. 1 to Pl.’s
Resp., Moran Dep. 64-66). Plaintiff claims he only needs to establish a
reasonable inference that he has performed overtime work, because
defendants’ paystubs and timesheets are inadequate. (See Dkt. 20, Pl.’s
Resp. 12-13). Plaintiff maintains his estimate of hours worked – 65-68
per week – is reasonable, given that defendants did not have a timetracking system, and never gave him a written schedule. (Id. at 12).
Over the course of his employment with defendants, plaintiff
complained to Zain Syed “[m]aybe six or seven times” about wanting
“more money.”

(Dkt. 20-3, Ex. 1 to Pl.’s Resp., Moran Dep. 53).

Although plaintiff “would get a little extra every once in a while,” he
claims he “was promised and needed a bonus, profit sharing, and I
never got it, and I just had enough at the end.” (Id. at 54). On April 30,
plaintiff approached Zain Syed and “asked for more money, overtime or
my bonus money or however you want to word it.” (Dkt. 20-3, Ex. 1 to
Pl.’s Resp., Moran Dep. 82). “An argument ensued,” although it was not
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“heated,” but “[j]ust two guys talking.”

(Id. at 82, 86-7).

Plaintiff

alleges he was terminated, as “it was either hit the road or stay working
like it is.” (Id. at 82). The next day, plaintiff was sentenced on a felony
conviction and was confined in the Oakland County, Michigan Jail for
52 days.

(Id. at 35-6, 83).

Ten days after his sentencing, plaintiff

notified Zain Syed that he would not be returning to work. (Id. at 81).
Plaintiff alleges defendants 1) failed to pay plaintiff overtime
wages, in violation of § 207 of the FLSA (Count I), and 2) terminated or
constructively

discharged

plaintiff

in

retaliation

for

plaintiff’s

complaints about the failure to pay overtime, in violation of § 215 of the
FLSA (Count II).

(Dkt. 1, Compl. ¶¶ 24, 30-31).

Plaintiff seeks

approximately $55,120 (based on a wage of $10 per hour and a
workweek of 68 hours) in back wages and an equal amount in
statutorily-mandated liquidated damages, plus attorney’s fees and
costs. (Dkt. 17-9, Pl.’s Ans. to Defs.’ First Interrogs., No. 13).

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II.

Analysis
A.

Summary judgment standard

Summary judgment is proper where “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 Court may
not grant summary judgment if “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.”

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248. The Court “views the evidence,
all facts, and any inferences that may be drawn from the facts in the
light most favorable to the nonmoving party.” Pure Tech Sys., Inc. v.
Mt. Hawley Ins. Co., 95 F. App'x 132, 135 (6th Cir. 2004) (citing
Skousen v. Brighton High Sch., 305 F.3d 520, 526 (6th Cir.2002)).
The non-movant cannot, however, “rely on the hope that the trier
of fact will disbelieve the movant’s denial of a disputed fact, but must
present affirmative evidence” to defeat the motion.

Street v. J.C.

Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989).

The “mere

existence of a scintilla of evidence in support of the plaintiff's position
will be insufficient.” Liberty Lobby, 477 U.S. at 252. “If the evidence is

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merely colorable, or is not significantly probative, summary judgment
may be granted.” Id. at 249-250.

B.

Failure to pay overtime (Count I)

Section 207 of the FLSA requires employers to pay employees at
least 1 ½ times their regular rate of pay for any time worked in excess
of 40 hours per week. 29 U.S.C. § 207(a). Section 216 provides that an
employer who violates § 207 “shall be liable to the employee or
employees affected” for unpaid overtime compensation and an
additional equal amount as liquidated damages. Id. § 216(b).
To establish a claim for failure to pay overtime under § 207, a
plaintiff must prove, by a preponderance of the evidence, “that he or she
performed work for which he was not properly compensated.” Anderson
v. Mt. Clemens Pottery Co., 328 U.S. 680, 686-87 (1946). Defendants
argue plaintiff cannot establish that he worked more than 40
compensable hours per week.
The plaintiff can often meet his or her burden through “discovery
and analysis of the employer’s code-mandated records.”

Myers v.

Copper Cellar Corp., 192 F.3d 546, 551 (6th Cir. 1999). “However, if the
8

employer kept inaccurate or inadequate records, the plaintiff’s burden
of proof is relaxed . . .” Id. Specifically, plaintiff’s burden is satisfied “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.” Mt. Clemens Pottery, 328 U.S. at 687.
1. The adequacy of defendants’ records and whether plaintiff is
entitled to a relaxed burden of proof
The parties spend much of their briefing arguing about the
adequacy of paystubs and timesheets submitted by defendants, and
whether plaintiff is entitled to a relaxed burden of proof in resisting
summary judgment on the overtime claim.
These arguments are misplaced, however. As plaintiff’s counsel
correctly pointed out at the hearing on this motion, the adequacy of an
employer’s records and an employee’s entitlement to a relaxed burden of
proof relate only to damages, not liability. The Sixth Circuit addressed
this very issue in O’Brien v. Ed Donnelly Enterps., Inc., 575 F.3d 567,
602-03 (6th Cir. 2009). In O’Brien, the plaintiffs contended they were
entitled to a relaxed burden of proof at summary judgment because the
9

employer’s records were inadequate. Id. at 602. The court rejected the
plaintiffs’ argument, holding:
Mt. Clemens Pottery and its progeny do not lessen the
standard of proof for showing that a FLSA violation
occurred.
Rather, Mt. Clemens Pottery gives a FLSA
plaintiff an easier way to show what his or her damages are .
. . In short, Mt. Clemens Pottery does not help plaintiffs show
that there was a violation under the FLSA. It would only
allow them to prove damages by way of estimate, if they had
already established liability.
O’Brien, 575 F.3d at 602-03. Here, defendants argue they are entitled
to summary judgment because plaintiff has not created a genuine
dispute of material fact as to defendants’ liability under § 207 of the
FLSA. That is, plaintiff has not, according to defendants, presented
sufficient evidence to establish that he worked compensable hours in
excess of 40 per week. Plaintiff is not entitled to a relaxed burden in
resisting summary judgment on that issue.
Even if the adequacy of defendants’ records were germane to the
Court’s analysis here, the time sheets and paystubs submitted by
defendants appear to meet the recordkeeping requirements under 29
C.F.R. § 516.2. Plaintiff has offered no basis for finding those records

10

inadequate, other than his bare assertion that the records are “false”
and “made solely to substantiate [defendants’] claim.” (Dkt. 20-3, Ex. 1
to Pl.’s Resp., Moran Dep. 64-66).
2. Whether plaintiff’s deposition testimony alone is sufficient to
create a genuine issue of material fact
Plaintiff must present “affirmative evidence” – more than a “mere
scintilla” – that he worked more than 40 hours per week for defendants.
Plaintiff’s evidence here consists solely of his own somewhat vague
deposition testimony that he worked 65-68 hours every week for the
duration of his employment with defendants.

The central question

before the Court, then, is whether plaintiff’s deposition testimony alone
is sufficient to create a genuine dispute as to that material fact.
Defendants maintain that plaintiff’s exclusive reliance on his deposition
testimony is legally insufficient to show that he worked overtime.
The Sixth Circuit has held that a non-movant’s deposition
testimony can, at least in some circumstances, suffice to create a
genuine dispute of material fact. Harris v. J.B. Robinson Jewelers, 627
F.3d 235, 238 (6th Cir. 2010) (citing cases from the 5th, 6th, 8th, and 9th
Circuits).

In Harris, the court stated that the plaintiff’s testimony
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“alone is sufficient to create a jury question” as to whether defendant
had switched the stone in plaintiff’s diamond ring for one of lesser
value. Id. But the court also considered three supporting affidavits in
deciding the plaintiff had created a genuine issue of material fact. Id.
Likewise, in Churchwell v. Bluegrass Marine, Inc., 444 F.3d 898,
904 (6th Cir. 2006), the court found the plaintiff’s testimony alone
created a genuine issue of material fact. But the court was guided in
part by the fact that claims under the statute at issue, the Jones Act,
had to clear only a “very low evidentiary threshold” to reach a jury, in
light of the underlying “policy of providing expansive remedies.” Id. at
903.

No such lower evidentiary threshold applies here. Harris and

Churchwell are thus not analogous to this case, and suggest that
something more – e.g., additional testimony, or a lower evidentiary
standard – is needed for a plaintiff’s deposition testimony to create a
genuine dispute of material fact.
Plaintiff cites two cases in support of the position that a plaintiff
may satisfy the burden of establishing a prima facie overtime case by
his testimony alone. (Dkt. 20, Pl.’s Resp. 13). In the first case, Bueno v.
Mattner, 829 F.2d 1380 (6th Cir. 1987), migrant farmworkers had sued
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their employer for failure to pay overtime. The employer appealed from
the district court’s judgment in favor of the plaintiffs. The district court
had first found the employer’s recordkeeping inadequate, based on its
failure to keep individual time records for employees. The court had
then found that the testimony of multiple plaintiffs, combined with such
records as the employer and the employees themselves had kept,
established a reasonable inference of the number of hours plaintiffs had
worked. Id. at 1387.
The second case, Williams v. Tri-County Growers, Inc., 747 F.2d
121 (3d Cir. 1984), similarly involved an employer’s appeal from a
judgment in favor of farmworkers suing for failure to pay minimum
wage. The district court had based its decision on the testimony of
multiple plaintiff farmworkers and their crew leader, who was not a
party to the case.
As in Harris, then, in neither Bueno nor Williams did the court
rely solely on a single plaintiff’s testimony to find a violation of the
FLSA. Rather, the court in each case had more evidence to support its
decision: employer and employee records or third-party testimony.
Plaintiff has not directed the Court to a case in this Circuit in which a
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plaintiff claiming unpaid overtime successfully resisted summary
judgment based on his or her deposition testimony alone.
Defendants, on the other hand, point to three district court cases
from within this circuit in which a plaintiff’s deposition testimony was
not enough to avoid summary judgment on a FLSA overtime claim.
In the first of these cases, McCrimon v. Inner City Nursing Home,
Inc., No. 10-392, 2011 U.S. Dist. LEXIS 113302, at *3-4, *10-14 (N.D.
Ohio Sept. 30, 2011), the plaintiff claimed in an affidavit to have
“worked

uncompensated

overtime

on

many

occasions”

at

her

supervisor’s instruction, and to have recorded the overtime hours on
slips of paper, which she then submitted to her supervisor.

The

plaintiff did not produce copies or records of the slips of paper. Id. at
*13. The court held that the plaintiff had not met her burden to resist
summary judgment, as her “allegations amount[ed] to no more than
bald assertions that she sometimes worked off the clock.” Id. at *14.
The plaintiff had failed to “state the number of days, number of hours,
or dates on which [the overtime work] occurred.” Id. at *15.
Similarly, in Simmons v. Wal-mart Assocs., Inc., No. 04-51, 2005
WL 1684002, at *29-30 (S.D. Ohio July 19, 2005), the plaintiff testified
14

at deposition that he had worked off the clock approximately 200 times
over a four-year period. The plaintiff claimed to keep a personal log of
hours worked, but did not offer a log into evidence. Id. at *30. The
court held that “plaintiff's bald assertion that from 1999 to 2003 he
worked off the clock over 200 times on unspecified days is not enough to
create genuine issues of material fact as to whether he is owed any
additional compensation.” Id.
In the third case, Millington v. Morrow Cty. Bd. of Comm’rs, No.
06-347, 2007 U.S. Dist. LEXIS 74348, at *16-18 (S.D. Ohio Oct. 4, 2007),
the plaintiff, a zoning inspector, claimed he spent an average of five
overtime hours per week making work-related phone calls from home.
The plaintiff referred to phone logs, but produced no records
documenting the calls he had received at home. Id. at *17. The court
found the plaintiff had “submitted no evidence beyond bare allegations
and vague undocumented estimates to support his claim” and held such
evidence “not sufficient to survive summary judgment.” Id. at *19.
Plaintiff here has similarly offered little more than the assertion
that he worked “on average” 65-68 hours per week, every week.
Plaintiff adds the detail that he began work at 7:30 A.M. every day,
15

before the shop opened, and stayed until after the shop closed, again
every day. This is similar to the Millington plaintiff’s claim to have
worked an average of five overtime hours per week, or the Simmons
plaintiff’s claim to have worked overtime on 200 occasions. The only
difference is that plaintiff here has not specified when he worked
overtime because he claims to have worked overtime every week for two
years.

And as with the plaintiffs in McCrimon, Simmons, and

Millington, plaintiff here claimed to have documentation supporting his
overtime claim, but failed to submit it. (Dkt. 20-3, Ex. 1 to Pl.’s Resp.,
Moran Dep. 58).

Plaintiff’s efforts to distinguish Millington and

Simmons are unavailing. (See Dkt. 20, Pl.’s Resp. 10-12). Plaintiff has
failed to present affirmative evidence sufficient to defeat defendants’
motion.

Defendants are therefore entitled to summary judgment on

plaintiff’s overtime claim.

C.

Retaliation (Count II)

Section 215(a)(3) prohibits an employer from “discharg[ing] or in
any other manner discriminat[ing] against [an] employee because such

16

employee has filed [a] complaint or instituted . . . any proceeding under
[the FLSA].”
1. Prima facie case
To establish a prima facie showing of retaliation, a plaintiff must
show that 1) he or she engaged in an activity protected under the FLSA;
2) the defendant knew of the protected activity; 3) the defendant took
an employment action adverse to plaintiff; and 4) there was a causal
connection between the protected activity and the adverse action. Adair
v. Charter County of Wayne, 452 F.3d 482, 489 (6th Cir. 2006). If the
plaintiff establishes a prima facie case of retaliation, the burden shifts
to the defendant to proffer a legitimate, non-discriminatory reason for
the adverse action. Id.

If defendant carries this burden, the plaintiff

must then offer evidence that defendant’s proffered reason is
pretextual. Id.
Defendants argue plaintiff has failed to establish two elements of
a prima facie retaliation case: protected activity and an adverse
employment action. (Dkt. 17, Defs.’ Mot. ¶ 7).

Because the Court

concludes that plaintiff has failed to create a genuine dispute of

17

material fact as to protected activity, the Court need not analyze
whether a genuine dispute exists as to the adverse action element.
2. Protected activity
Defendants maintain plaintiff’s alleged protected activity is too
vague to constitute fair notice to defendant that plaintiff was asserting
his rights under the FLSA. The Court agrees.
Section 215(a)(3) of the FLSA protects “fil[ing a] complaint or
institut[ing] . . . any proceeding [under the FLSA].” The Supreme Court
has interpreted this provision to cover oral, informal complaints from
an employee to an employer, so long as the complaint is “sufficiently
clear and detailed for a reasonable employer to understand it, in light of
both content and context, as an assertion of rights protected by the
statute and a call for their protection.” Kasten v. Saint-Gobain
Performance Plastics Corp., 131 S.Ct. 1325, 1335 (2011).
The issue here is whether plaintiff made a sufficiently clear and
detailed assertion of his right to overtime pay. Two of the leading Sixth
Circuit cases addressing the issue were decided before Kasten but are
nonetheless instructive. In EEOC v. Romeo Cmty. Schs., 976 F.2d 985,

18

990 (6th Cir. 1992), the court found a teacher’s informal complaint to her
employer school district that “she believed it was breaking some sort of
law by providing higher wages to her male counterparts” was a
protected activity under section 215(a)(3). In Moore v. Freeman, the
court found that an African-American housing inspector’s “rais[ing] the
issue” of unequal pay, as between himself and a white inspector, was
“clearly” protected activity under section 215(a)(3). 355 F.3d 558, 56162 (6th Cir. 2004).
Plaintiff relies on Hill v. Herbert Roofing & Insulation, Inc., 2014
U.S. Dist. LEXIS 48140 (E.D. Mich. Apr. 8, 2014), at *12, in which the
court held the plaintiff had engaged in FLSA-protected activity when he
“complained several times to internal management regarding overtime
pay. He specifically referenced overtime policies and how to receive
overtime pay.”
Here, plaintiff testified that he complained “maybe six or seven
times” about his compensation to defendant Zain Syed, manager of Auto
Pro Warren (Dkt. 20-3, Ex. 1 to Pl.’s Resp., Moran Dep. 53). Plaintiff
further testified that on his last day of work he asked Syed “for more

19

money, overtime, or my bonus money or however you want to word it”
(Id. at 82).
It is not “sufficiently clear” from this statement that plaintiff was
asserting a right to overtime pay.

A reasonable employer could

understand plaintiff’s statement to be a demand for a bonus, or simply
for more money. This is even more likely when plaintiff’s statement is
considered in context. See Kasten, 131 S. Ct. at 1335. Plaintiff testified
that the parties had agreed his compensation would include a “bonus
type profit sharing” (Dkt. 20-3, Ex. 1 to Pl.’s Resp., Moran Dep. 43).
Plaintiff also testified that the substance of his six or seven earlier
wage-related discussions was “I was promised and needed a bonus,
profit sharing, and I never got it, and I just had enough at the end.” (Id.
at 54).
By contrast, the statements at issue in Romeo Cmty. Schs. and
Moore referred solely to illegal discrimination in pay practices.
Similarly, the statements in Hill referred only to overtime pay and
specifically referred to overtime policies.

Here, plaintiff alternately

characterized his complaints as about profit sharing, bonuses, or
overtime, and did not invoke legal rights or employer policies. Based on
20

this evidence, a reasonable juror could not conclude that plaintiff made
a sufficiently clear and detailed complaint for a reasonable employer to
understand it as an assertion of rights under the FLSA. See Kasten,
131 S. Ct. at 1335.

Defendants are therefore entitled to summary

judgment on plaintiff’s FLSA retaliation claim.
III. Conclusion
Accordingly, defendants’ Motion for Summary Judgment is
GRANTED with respect to both counts.
IT IS SO ORDERED.

Dated: August 25, 2014
Ann Arbor, Michigan

/s/ Judith E. Levy
JUDITH E. LEVY
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on August 25, 2014.

s/Felicia M. Moses
FELICIA M. MOSES
Case Manager
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