Garrett v. Rutter and Sleeth Law Offices et al
ORDER denying 52 motion for partial summary judgment; denying 35 motion for summary judgment. Signed on 11/18/2020 by District Judge M. Douglas Harpool. (Maerz, Mary)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
RUTTER AND SLEETH LAW
OFFICES, BRIAN D. SLEETH AND
Case No. 2:19-cv-04203-MDH
ORDER ON MOTIONS FOR SUMMARY JUDGMENT
Before the Court are Defendants’ Motion for Summary Judgment (Doc. 35) and Plaintiff’s
Motion for Partial Summary Judgment (Doc. 52). Defendants contend that the are entitled to
judgment as a matter of law on all of Plaintiff’s claims. Plaintiff moves this Court for summary
judgment on Counts I (Fair Labor Standards Act—Failure to Pay Overtime) and II (Missouri
Minimum Wage Law—Failure to Pay Overtime) of her Complaint. For the reasons set forth herein,
both motions are DENIED.
Plaintiff Angel Garrett is suing Defendants Brian D. Sleeth, James Rutter, and Rutter and
Sleeth Law Offices (“Defendants”) for violations of the Fair Labor Standards Act (“FLSA”) and
Missouri Minimum Wage Law (“MMWL”) for unpaid overtime for her work as a
paralegal/secretary at Defendants’ law firm. Specifically, the Amended Complaint (Doc. 9) alleges
that Defendants violated the FLSA by failing to pay overtime (Count I); Defendants violated the
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MMWL for failing to pay overtime (Count II); Plaintiff alleges quantum meruit (Count III); and
Plaintiff alleges unjust enrichment (Count IV).
Defendants practice in varied areas of law, including criminal defense, estate law, family
law, personally injury, and bankruptcy. (See Doc. 46, 5). Defendants hired Plaintiff as a
paralegal/secretary on or around September 7, 2017. (Doc. 9, Ex. C). While there is dispute over
whether Plaintiff voluntarily quit or was constructively discharged, Plaintiff’s employment with
Defendants ended on or about March 29, 2019. (See Doc. 35-1, Ex. C).
According to Defendants, Plaintiff’s job duties were clerical and included answering the
phone, talking to clients, and scheduling appointments for the two attorneys in Defendants’ office.
(Doc. 35-1, 6). According to Plaintiff, in addition to these duties, Plaintiff researched legal issues,
drafted discovery requests, drafted correspondence, interacted with marketing firms, ran billing
for clients and for pre-paid legal services, interacted with insurance companies, interacted with
Medicare and Medicaid, assisted with online filing in state and federal courts, ordered supplies,
and drafted and mailed demand letters. (Doc. 46, 6). Plaintiff also asserts that she assisted with
bankruptcy litigation during her employment. Id. Plaintiff states that she also ordered office
supplies for Defendants, which Defendants also dispute. Id. at 12-13.
Defendants assert that during the time of Plaintiff’s employment, Defendants’ law firm
practiced law and generated business from clients located exclusively within the State of Missouri.
(Doc. 35-1, 7). Plaintiff alleges that she was aware of at least four clients of Defendants that were
out of state clients, allegedly located in California, Maryland, Arizona, and Connecticut, and that
Plaintiff communicated with these clients on several occasions via telephone. (Doc. 46, 17). The
extent to which Plaintiff was involved with personal injury cases handled by the law firm is
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disputed. See id. at 19. Moreover, Plaintiff claims she regularly communicated with out of state
parties on behalf of Defendants. See id. at 27. Defendants dispute this. (See Doc. 35-1, 8).
Many of Plaintiff’s claims are purportedly supported by the “Work Record” document
produced by Plaintiff. Plaintiff allegedly kept a record of her activities for Defendants in this
document, which is comprised of a table that lists Date, Client, and Work Description. Plaintiff
asserts that she worked approximately 342 hours of overtime, and that these added hours were a
result of Plaintiff working though her lunch hour. (See Doc. 53, 19). Defendants dispute this.
Summary judgment is proper where, viewing the evidence in the light most favorable to
the non-moving party, there are no genuine issues of material fact and the moving party is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(a); Reich v. ConAgra, Inc., 987 F.2d 1357, 1359
(8th Cir. 1993). “Where there is no dispute of material fact and reasonable fact finders could not
find in favor of the nonmoving party, summary judgment is appropriate.” Quinn v. St. Louis
County, 653 F.3d 745, 750 (8th Cir. 2011). Initially, the moving party bears the burden of
demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). If the movant meets the initial step, the burden shifts to the nonmoving party to
“set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). To satisfy this burden, the nonmoving party must “do more than
simply show there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
A question of material fact is not required to be resolved conclusively in favor of the party
asserting its existence. Rather, all that is required is sufficient evidence supporting the factual
dispute that would require a jury to resolve the differing versions of truth at trial. Anderson v.
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Liberty Lobby, Inc., 477 U.S. at 248-249. Further, determinations of credibility and the weight to
give evidence are the functions of the jury, not the judge. Wierman v. Casey’s General Stores, et
al., 638 F.3d 984, 993 (8th Cir. 2011).
The FLSA requires employers to pay all covered employees at least time and half for all
hours worked in excess of forty hours. 29 U.S.C. § 207(a)(1). To establish a prima facie case for
overtime under the FLSA, a plaintiff must prove four things. First, a plaintiff must show the
existence of an employment relationship. Reich v. ConAgra, Inc., 987 F.2d 1357, 1360 (8th Cir.
1993). Second, a plaintiff must show that she was covered by the FLSA. Baker v. Stone Cnty., Mo,
41 F. Supp. 2d 965, 978 (W.D. Mo. 1999). Third, a plaintiff must establish the defendant’s actual
or constructive knowledge of overtime hours worked without proper compensation for all hours in
excess of forty in one workweek. Brennan v. Qwest Commc’n Intern., Inc., 727 F. Supp. 2d 751
(D. Minn. 2010); see also 29 C.F.R. § 785.11 (including in the definition of work time “work [that
is] not requested but suffered or permitted”). Finally, a plaintiff must demonstrate that she was not
properly compensated under the Act and must prove the amount of the liability. Anderson v. Mt.
Clemens Pottery Co., 328 U.S. 680, 687 (1946). Plaintiff has the burden of proof to establish her
prima facie case.
As raised by the cross motions for summary judgment in this case, the three primary issues
identified by the parties are whether or not there is a genuine issue of material fact as to: (1) whether
the not Plaintiff qualifies for the FLSA’s individual coverage, and (2) whether Plaintiff is entitled
to unpaid overtime as she alleges. As set forth below, the Court finds that there is a genuine issue
of material fact as to whether Plaintiff qualifies for FLSA coverage or is entitled to unpaid
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Individual Coverage under the FLSA
At issue is whether there is a genuine issue of material fact as to whether Plaintiff qualifies
for the FLSA’s individual coverage. One of the two methods plaintiffs may use to prove
“coverage” under the interstate commerce requirement of the FLSA is through proof of “individual
coverage.” See 29 U.S.C. § 207. Individual coverage under the FLSA exists when an employee’s
work involves the continued use of the interstate mails, telegraph, telephone or similar
instrumentalities for communication across state lines. Schmidt v. Peoples Tel. Union of Maryville,
Mo., 138 F.2d 13, 15 (8th Cir. 1943); O’Quinn v. Country Inn, Inc., 2019 WL 1968051, at *4
(W.D. Ark. April 4, 2019) (citing 29 C.F.R. § 776.10(b)). For individual coverage to apply under
the FLSA must be engaged in commerce or in the production of goods for commerce. McLeod v.
Trelkeld, 319 U.S. 491, 497 (1943).
Plaintiff alleges that she had regular, recurrent, and meaningful contact with Defendants’
vendors, clients, and/or companies who were outside the state of Missouri about two to three times
per week and that this is sufficient to establish that she was engaged in commerce. (Doc. 53, 18).
Over the course of her one- and one-half years of employment, Plaintiff alleges that she has
identified around 100 communications across state lines. Id. Specifically, Plaintiff allegedly had
regular contact with insurance companies outside the state of Missouri in connection to five or
more personal injury cases of Defendants. Id. at 16. Plaintiff also alleges she had regular contact
with Medicare or Medicaid with respect to the injury clients, and Plaintiff claims that she was in
charge of drafting and sending the correspondence across state lines. Id. Plaintiff asserts that she
interacted with Medicare and out-of-state insurance companies more than 30 times during her
employment. Id. at 16-17.
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During Plaintiff’s employment, Defendants were contracted with various pre-paid legal
providers, and Plaintiff alleges she was responsible for submitting these billings, time entries, and
descriptions of services across the internet to these providers which are located in New York, Iowa,
and Texas. Id. at 17. Plaintiff alleges she interacted with these companies by telephone and email
more than 26 times during her employment. Id.
Plaintiff claims she was also responsible for communicating with Defendants’ internet
marketing consultant, which is based out of California, Texas, and New York. Id. Plaintiff alleges
that she spoke with this out-of-state marketing representative roughly 10 times on the telephone
and also exchanged emails. Id. Plaintiff asserts that she was aware of clients located in California,
Maryland, Arizona, and Connecticut, and that Plaintiff communicated with these clients on several
occasions via telephone and email. Id. at 18. Plaintiff claims she was responsible for securing a
process server in Arizona and Texas and was responsible for verifying other case/client details. Id.
Plaintiff alleges she made several calls to Arizona and Texas to accomplish these tasks. Id. Plaintiff
also claims she was responsible for running credit card payments of the firm’s clients on a roughly
weekly basis and assisted with many bankruptcy clients and filings. Id.
Defendants dispute Plaintiff’s factual allegations and furthermore argue that, even if
Plaintiff had contact with out-of-state clients or otherwise used the instrumentalities of interstate
commerce during her employment, Plaintiff’s activities were not so substantial or meaningful to
rise to the level of establishing individual coverage. (See, e.g., Doc. 35-1, 13-14). Defendants note
that Plaintiff uses the Work Record document to support most of her claims. (See generally, Doc.
49). While the Court has previously denied Defendants’ motion to exclude the Work Record (Doc.
65), Defendants also argue that the document itself fails to allege facts sufficient on which a
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reasonable jury could determine that Plaintiff qualified for individual coverage, because it is a
“conclusory, self-serving declaration[.]” lacking in specific facts. (Doc. 49, at 9).
Defendants rely heavily on Curry v. High Springs Family Practice and Diagnosis Center,
Inc., 2009 WL 3163221 (N.D. Fla. 2009), in which the court found that the evidence that Plaintiff
made only 29 calls and/or faxes to out of state insurance companies during her 15 months of
employment was not sufficient to survive summary judgment on the issue of individual coverage.
Similarly, Defendants cite Dent v. Giaimo, 606 F. Supp. 2d 1357 (S.D. Fla. 2009), where the Court
found that an office assistant who performed entirely clerical duties did not qualify for individual
coverage despite sporadic contact with out-of-state insurance companies.
Defendants’ reliance on cases from the district courts of the 11th Circuit and the 11th
Circuit itself is not compelling, particularly given that the facts of those cases do not mirror the
facts at hand as Defendants would argue. Plaintiff argues that the facts of cases like Curry and
Dent are distinguishable—and the Court agrees—because they involve plaintiffs who allege far
less frequent or substantial contact with out-of-state entities than Plaintiff here does. (Doc. 46, 3133). Plaintiff cites case law from district courts in the 8th Circuit to support her argument that
summary judgment is inappropriate here. See, Lester v. Wildwood Financial Group, Ltd., 1999
WL 35793739, at *4 (E.D. Mo. 1999) (denying summary judgment due to potential individual
coverage, noting that “[i]t is undisputed that a large portion of Lester’s activities on behalf of
Wildwood entailed continued use of the interstate mails and telephone instrumentalities for
communication across State lines. As such, an employee performing Lester’s activities would be
entitled to individual coverage under the FLSA. Wildwood cannot avoid liability solely because it
does not qualify as an enterprise under the FLSA.”); Perez v. Mian Enterprises, Inc., 2018 WL
10394809, at *1 (W.D. Ark. 2018) (granting the plaintiff’s motion for summary judgment, holding
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as to FLSA individual liability that the sales clerk plaintiff “was a covered individual because she
used telephone lines to process credit cards for customers who purchased gasoline for use on
interstate highways and used the telephone and internet to order cigarettes from national brands
for resale.”); O’Quinn v. Country Inn, Inc., 2019 WL 1968051, at *4 (W.D. Ark. 2019) (denying
defendant’s summary judgment as to FLSA individual liability because the plaintiff – a small
motel office manager – produced evidence from which a reasonable jury could determine the she
qualified for individual coverage by regularly using the instrumentalities of interstate commerce
in her work).
This Court in Lochiano v. Compassionate Care, LLC, 2012 WL 4059873 (W.D. Mo. 2012)
denied summary judgment on this same issue where the Plaintiff alleged that she was engaged in
commerce via her work activities such as (1) traveling across state lines; (2) using her cell phone
to make interstate calls; (3) assisting clients in purchasing goods that had been transported in
interstate commerce; and (4) using goods that had moved in interstate commerce. Id. at *6. Even
though this Court found that the plaintiff’s only support for her allegations were her own
conclusory statements, the Court nonetheless found that there was a genuine issue of material fact
regarding whether the plaintiff was covered by the FLSA. Id.
Here, both parties dispute Plaintiff’s activities. In particular, whether she had contact with
certain out-of-state entities and how often she had contact with them. Both parties have submitted
evidence, including the Work Record and the parties’ own declarations, to support their arguments.
Like this Court’s conclusion in Lochiano, the Court here finds that there is genuine issue of
material fact as to whether Plaintiff is entitled to individual coverage under the FLSA.
Accordingly, Defendants’ Motion and Plaintiff’s Motion, with respect to the issue of FLSA
coverage, are denied.
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Plaintiff claims that she worked approximately 342 hours of overtime by working through
her lunch hour nearly every day of her employment. (Doc. 53, 19). Plaintiff alleges that she created
timesheets that kept track of her hours worked in each work week and provided these to Defendants
bi-weekly. Id. Plaintiff further asserts that (1) Defendants were at lunch for approximately two and
one-half hours each workday; (2) Defendants did not know what Plaintiff was doing while they
were at lunch; (3) Defendants did not keep track of the hours Plaintiff worked; and (4) Defendants
did not pay Plaintiff for all hours worked. Id.
Defendants claim that Plaintiff never worked more than 40 hours in any week in which she
was employed by Defendants. (Doc. 60, 47). Defendants have also produced “Plaintiff’s Payroll
Records” to support this claim, which show that Plaintiff was never paid for overtime hours. (Doc.
60, Ex. C). However, Defendants have admitted that they did not keep time records for Plaintiff.
Defendants argue that Plaintiff’s overtime claims appear inconsistent, as Plaintiff’s “time record”
only shows 144.25 documented hours of alleged overtime worked, at least in part because about
six months of time is missing. (Doc. 60, 47).
Given the overall deficiency in recordkeeping, as well as the conflicting and incomplete
nature of the evidence that has been submitted in this matter, the Court finds that there is a genuine
issue of material fact as to whether or not Plaintiff is entitled to unpaid overtime, which applies to
the claims under both the FLSA and MMWL.
For the reasons set forth above, the Defendants’ Motion for Summary Judgment (Doc. 35)
and Plaintiff’s Motion for Partial Summary Judgment (Doc. 52) are hereby DENIED in their
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IT IS SO ORDERED.
Dated: November 18, 2020
/s/ Douglas Harpool______
United States District Judge
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