Moschos v. Creighton University

Filing 46

MEMORANDUM AND ORDER - The Motion for Summary Judgment (Filing No. 22 ) filed by Defendant Creighton University is granted. All other pending motions in this case are denied as moot. This action is dismissed, with prejudice. A separate judgment will be entered. Ordered by Chief Judge Laurie Smith Camp. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ILEANA MOSCHOS,
Plaintiff,

8:11CV403

vs.
MEMORANDUM AND ORDER
CREIGHTON UNIVERSITY,
Defendant.

This matter is before the Court on the Motion for Summary Judgment (Filing No.
22) filed by Defendant Creighton University (“Creighton” or “the University”).

The

parties have filed briefs and indexes of evidence in support of their respective positions.
For the reasons stated below, Defendant’s Motion will be granted.
FACTUAL BACKGROUND
Unless otherwise indicated, the following facts were presented in the parties’
briefs and were supported by pinpoint citations to admissible evidence in the record that
the parties have admitted, or that the parties have not properly resisted as required by
NECivR 56.11 and Fed. R. Civ. P. 56.
Creighton is a private university which operates several undergraduate, graduate
and professional colleges or schools. One of the departments of the University is the
Department of Athletics, through which Creighton makes available to its students the
opportunity to participate in numerous intercollegiate sports, including women’s soccer.
From July 5, 1999, until the present, Bruce Erickson (“Erickson”) has served as the
Head Coach of Creighton’s Women’s Soccer program.
1

Erickson reports to Bruce

“Properly referenced material facts in the movant’s statement are considered admitted unless
controverted in the opposing party’s response.” NECivR 56.1(b)(1).

Rasmussen (“Rasmussen”), Creighton’s Athletic Director.

In the winter of 2006-07

Erickson contacted the Plaintiff, Ileana Moschos (“Moschos” or “Plaintiff”) regarding an
open position for an Assistant Women’s Soccer Coach at Creighton.
Moschos was a highly skilled soccer player who had played as a goalkeeper
professionally in the United States and for the Greek National Team in the 2004
Olympics. She was also a very experienced assistant coach, having served as an
assistant at Florida State University, Iowa State University, the University of North
Texas, Sacramento State University, the University of Wyoming, and Davidson College.
At the time Erickson and Moschos discussed a possible position at Creighton, Moschos
was working as a volunteer assistant coach at Florida State University and taught sports
management classes. In that position Moschos was earning $17,000 per year.
In January of 2007, Moschos came to Creighton for an interview, after which
Erickson offered Moschos a position as Assistant Women’s Soccer Coach. A one-page
offer letter was prepared by Erickson outlining the financial terms, which included a
$30,000.00 salary, a car stipend, and the opportunity for separate summer camp
earnings. Moschos accepted the offer, and signed the offer letter on January 26, 2007,
with an anticipated start date of April 2007. Moschos then returned to Florida State
University to complete her work there. On March 7, 2007, a second letter was sent to
Moschos, this time by a recruiter in Creighton’s Human Resources Department. This
letter again offered the position to Moschos, but said “The salary for this full-time nonexempt position is $14.42 per hour.” The letter also stated: “This letter represents an
initial offer of employment; however, it does not constitute an employment contract for
any specific period of time . . . .” (Filing No. 24-5.)
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Moschos began work at Creighton in late April 2007. From the date she started
until December 7, 2007, Moschos was paid for 40 hours of work each week at $14.42
per hour. Effective December 7, 2007, Moschos’s pay was changed from $14.42 per
hour paid twice per month, to an annual salary, paid monthly. Moschos was aware that
her compensation had been changed to a salary, but did not voice her objections to
anyone at Creighton. (Filing No. 24-1 at 71:5-7.)
Creighton asserts that the change was due to an analysis conducted by
Creighton’s Human Resource Department regarding whether certain positions at the
University were properly classified as exempt or non-exempt under the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. § 201, et seq.

(Filing No. 24-14, Aff. of Ronni

Beckwith, ¶¶ 3-4.) The analysis included the position of Women’s Assistant Soccer
Coach, and concluded that because the primary duties of the position included
independent judgment and discretion, the position should be re-classified as exempt
and Moschos should be paid on a salaried basis. (Id. ¶¶ 5-8.) Moschos claims that she
was reclassified in a salary position because she made complaints about not being paid
for all hours over 40 per week, and was being directed to change her time sheets to
only show 40 hours per week. (See Filing No. 25-3, Aff. of Ileana Moschos, ¶¶ 17-19.)
Moschos alleges she was told by two administrative assistants within the athletic
department that she was required to report 40 hours per week on each timesheet,
regardless of her actual hours worked. (Id. ¶¶ 18, 19.)
Beginning December 9, 2007, Moschos kept no timesheets or records of her
hours worked at Creighton. Effective July 1, 2008, Moschos’s salary was increased to
$32,000.00 per year, paid monthly. In addition to her salary from Creighton, Moschos
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worked summer camps for Erickson for which she was paid by him $6,000.00 per
summer in each of the years 2007-10.

Moschos also worked summer camps at other

schools or organizations for which she was paid separately by those schools or
organizations. Moschos received her regular paycheck from Creighton each summer,
even though Moschos was working elsewhere during those camps. Moschos asserts
that her work at these camps benefitted Creighton by allowing her to evaluate potential
recruits. (Filing No. 25-3 ¶ 2.) Moschos left Creighton effective June 2, 2011.
Moschos filed this lawsuit on December 1, 2011. Moschos’s first claim is that
Creighton owes her unpaid overtime under the FLSA. Moschos claims that Creighton
improperly changed her wage status, and that Creighton owes her overtime pay under
the FLSA dating back to December 1, 2008, the furthest date her claim could extend
under the statute of limitations. Moschos also asserts that Creighton is liable under the
principle of promissory estoppel because Moschos detrimentally relied on Creighton’s
promise to pay her $14.42 per hour. Third, Moschos claims on behalf of herself and
others similarly situated, that Creighton had a pattern and practice of failing to pay
employees’ overtime wages. Fourth, Moschos claims she is owed wages under the
Nebraska Wage Payment and Collection Act (“NWPCA”), Neb. Rev. Stat. § 48-1228.
Finally, Moschos claims that Creighton breached its agreement to pay Moschos $14.42
per hour when it changed Moschos from an hourly compensation to a salary without her
approval.

Creighton denies these claims, and asserts that Moschos was properly

classified as exempt from overtime pay in December 2007, and remained so throughout
the balance of her employment. Creighton now asserts that Moschos’s claims fail as a
matter of law, and are proper for disposition by summary judgment.
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STANDARD OF REVIEW
“Summary judgment is appropriate when the record, viewed in the light most
favorable to the non-moving party, demonstrates there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law.” Gage v. HSM
Elec. Prot. Serv., Inc., 655 F.3d 821, 825 (8th Cir. 2011) (citing Fed. R. Civ. P. 56(c)).
The court will view “all facts in the light most favorable to the non-moving party and
mak[e] all reasonable inferences in [that party's] favor.” Schmidt v. Des Moines Pub.
Sch., 655 F.3d 811, 819 (8th Cir. 2011). However, “'facts must be viewed in the light
most favorable to the nonmoving party only if there is a “genuine” dispute as to those
facts.'” Ricci v. DeStefano, 557 U.S. 557, 586 (2009) (quoting Scott v. Harris, 550 U.S.
372, 380 (2007)).
In response to the movant’s showing, the nonmoving party’s burden is to produce
“evidentiary materials that demonstrate the existence of a ‘genuine issue’ for trial.” Id.
“[T]he absence of an adequate response by the nonmovant, even after the moving party
has carried its initial burden of production, will not automatically entitle the movant to
entry of summary judgment.” Lawyer v. Hartford Life & Acc. Ins. Co., 100 F. Supp. 2d
1001, 1008 (W.D. Mo. 2000) (citing Celotex, 477 U.S. at 331). Instead, “the moving
party must show that the evidence satisfies the burden of persuasion and that the
evidence is so powerful that no reasonable jury would be free to disbelieve it.” Id. (citing
Celotex, 477 U.S. at 331). In other words, where the Court finds that “the record taken
as a whole could not lead a rational trier of fact to find for the non-moving party”–where
there is no “'genuine issue for trial'”–summary judgment is appropriate.

5

Matsushita

Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting First
Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).
DISCUSSION
I.

Evidence of Hours Worked for FLSA Claims
Creighton argues that the Court should dismiss Moschos’s claim because she

cannot meet her burden of proof as to her overtime hours claimed. In a claim for unpaid
overtime under the FLSA, plaintiffs must “present evidence that they worked above their
scheduled hours without compensation and that the [employer] knew or should have
known that they were working overtime.”2 Hertz v. Woodbury Cnty., Iowa, 566 F.3d
775, 781 (8th Cir. 2009). The plaintiff bears the burden of demonstrating “(1) that the
plaintiff has performed compensable work and (2) the number of hours for which the
plaintiff has not been properly paid.” Id. at 783 (citing Goldberg v. Kickapoo Prairie
Broad. Co., 288 F.2d 778, 784 (8th Cir.1961)). The parties dispute, however, the extent
to which Moschos must show the amount of her uncompensated work—in essence, her
damages—in order to survive summary judgment.

Specifically, Creighton claims that

Moschos is unable to meet her burden of proof as to the hours claimed, and the
evidence upon which Moschos relies is inadmissible and unreliable. For the reasons

2

Creighton does not directly argue that it lacked knowledge of any overtime hours Moschos may
have worked. The Court presumes this is because, during the relevant limitations period, Creighton
assumed she was exempt from the FLSA. Under the FLSA, “[a]n employee must be compensated for
duties ‘before and after scheduled hours ... if the employer knows or has reason to believe the employee
is continuing to work and the duties are an integral and indispensable part of the employee's principal
work activity.’” Hertz, 566 F3d at 781 (quoting Mumbower v. Callicott, 526 F.2d 1183, 1188 (8th
Cir.1975)). The Eighth Circuit has elaborated that “constructive knowledge of overtime work is sufficient
to establish liability under the FLSA, if the [employer], through reasonable diligence, should have acquired
knowledge that Plaintiffs were working in excess of their scheduled hours.” Id. Even assuming Moschos
was improperly classified, she still must present evidence that Creighton knew or should have known she
worked overtime during the relevant period.

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discussed below, the Court agrees, and concludes that Moschos has not met her
burden, even under the relaxed standard articulated in Anderson v. Mt. Clemens Pottery
Co., 328 U.S. 680, 687-88 (1946).
A.

Relaxed Burden Under Anderson

The FLSA requires employers to Amake, keep and preserve such records of the
persons employed by him and of wages, hours, and other conditions and practices of
employment maintained by him, and shall preserve such records for such periods of
time, and shall make such reports therefrom to the Administrator [of the Department of
Labor=s Wage and Hour Division] as he shall prescribe by regulation or order . . . .@ 29
U.S.C. ' 211(c). If an employer has not kept adequate records of hours and wages,
employees generally are not denied recovery on the ground that the precise extent of
their uncompensated work cannot be proved. Dole v. Alamo Foundation, 915 F.2d 349,
351 (8th Cir. 1990). Rather, employees Aare to be awarded compensation on the most
accurate basis possible.@ Id. (citing Anderson v. Mt. Clemens Pottery Co., 328 U.S.
680, 687-88 (1946)).

When “an employer fails to maintain accurate time records,

Anderson relieves the employee of proving the precise extent of uncompensated work
and creates a relaxed evidentiary standard.”

Carmody v. Kansas City Bd. of Police

Comm'rs, 713 F.3d 401, 406 (8th Cir. 2013) (citing Anderson, 328 U.S. at 687). Under
the relaxed standard, “once the employee has shown work performed for which the
employee was not compensated, and ‘sufficient evidence to show the amount and
extent of that work as a matter of just and reasonable inference,’ the burden then shifts
to the employer to produce evidence to dispute the reasonableness of the inference.”
Id. (quoting Anderson, 328 U.S. at 687-88). This relaxed standard only applies where
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the existence of damages is certain, and uncertainty remains as to the amount of
damages. Id.
B.

Moschos Failed to Meet Her Burden of Proving Damages

Even if Moschos’s primary job duty did trigger Creighton’s obligation to make,
keep, or preserve records under the FLSA, and Creighton failed to do so, Moschos has
not presented sufficient evidence to show the amount and extent of unpaid work as a
matter of just and reasonable inference.

The Eighth Circuit recently addressed this

issue in Carmody, upholding the district court’s ruling that Kansas City police officers
failed to provide enough proof to survive summary judgment in an FLSA claim. The
police officers alleged that their captain used a flex time policy from 2006 until 2009 in
which officers

received

flex time or time off rather than receiving overtime

compensation. 713 F.3d at 403. Neither the city nor the officers tracked the accrued
flex time, and the flex time was allegedly lost if not used within a short period. Id. The
Internal Affairs Department of the Kansas City Police Department (the “IA”) investigated
the flex time policy and concluded that the officers worked unpaid overtime hours. Id.
Based on department documents, the IA investigation showed that the officers had
worked 481 unpaid overtime hours.

Id. However, the IA report could not determine

whether the officers were given flex time for the unpaid overtime, and stated that the
police officers were unable to “identify specific occurrences when flextime was
mandated.” Id.
The police officers sued the city, and the district court granted summary
judgment for the city. Id. at 405. The Eighth Circuit upheld the district court’s ruling,
concluding that the officers’ evidence was insufficient because the IA investigation could
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not determine whether flex time or time off was used in lieu of overtime pay. Id. at 4067. The court noted that the city’s failure to keep accurate records allowed the district
court to apply the relaxed evidentiary standard pronounced in Anderson. Id. at 406.
Thus, the officers’ initial burden was to prove that they carried flex time hours into a new
work week, or went entirely unpaid for those hours. Id. at 406. The evidence before the
court demonstrated that the officers were unable to identify specific occurrences when
flextime was mandated. Id. The officers also could not provide evidence of specific
dates worked, specific hours worked, or money owed. Id. at 407. Thus, the officers
were unable “to identify any record evidence showing actual damages from unpaid work
in excess of forty hours per week, in violation of the FLSA.”

Id. Considering this

evidence, the Eighth Circuit concluded:
The city's failure to provide accurate time records reduces the officers'
burden, but does not eliminate it. Even though Anderson relaxes the
burden of proof, the officers must still prove the existence of damages.
See Anderson, 328 U.S. at 688. Viewed in the light most favorable to the
officers, the officers have failed to provide any evidence of actual
damages. Without record evidence of a single hour worked over forty
hours that did not receive overtime wages or flextime, the officers'
unsupported estimations of the unpaid hours due are not enough.
Id. (emphasis added).
Moschos has presented minimal evidence of her overtime hours during the
relevant period. In her affidavit resisting summary judgment, Moschos states that she
“believes that the hours worked in years 2008-11 would be substantially similar to those
listed in deposition exhibit 5 (my calendar for 2007) for the months of May-December.”
(Filing No. 25-3 at 5 ¶ 14.) In her deposition, Moschos testified that her hours during
any week of 2008 would be “[s]imilar to the exact hours I worked in 2007 . . . .” (Filing

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No. 24-1 at 72:8-12.) Other than references to her 2007 calendar (Filing No. 24-6),
Moschos provides no evidence of actual hours worked, or money owed, for the relevant
period. For example, Moschos testified that in 2009 she “worked a lot” and that could
mean “some weeks 40 hours, and some weeks it could be over 40 hours.” (Filing No.
24-1 at 73:17-23.)

Just as the officers’ estimations in Carmody were insufficient,

Moschos’s unsupported estimations of her hours are not sufficient to support her claims.
Moschos argues that it is up to the jury to decide whether her allegations are
true, but she offers no factual allegations to substantiate her overtime claims during the
relevant period.3 Further, she provides no evidence of the amount or extent of hours
she actually worked without compensation, and provides no evidence that Creighton
was aware that she worked unpaid overtime hours during the relevant period. 4
Moschos’s conclusory evidence is insufficient to establish the amount and extent of
unpaid overtime “as a matter of just and reasonable inference.” Anderson, 328 U.S. at
687-88. Viewed in a light most favorable to Moschos, she has failed to provide any
evidence of a single hour worked over 40 hours per week in the relevant period, nor has
she provided any evidence of actual damages.

Accordingly, regardless of the

3

Moschos cites the Manual of Model Civil Jury Instructions of the Eighth Circuit, Instruc tion No.
16.10 (2013) which states, “If you find that the defendant failed to maintain records of the plaintiff=s hours
worked or that the records kept by the defendant are inaccurate, you must accept plaintiff=s estimate of
hours worked, unless you find it to be unreasonable.” However, Moschos has not provided an estimate of
her hours worked during the relevant period and this instruction is inapplicable.
4

Several courts have determined that failure to provide such evidence merits summary judgment.
See e.g. Carmody, 713 F.3d at 407; Turner v. The Saloon Ltd., 595 F.3d 679, 690-91 (7th Cir. 2010)
(affirming summary judgment and stating that a plaintiff’s mere assertions are insufficient to create a jury
issue); Harvill v. Westward Communications, L.L.C., 433 F.3d 428, 441 (5th Cir. 2005) (affirming
summary judgment despite plaintiff's conclusory allegation that she had worked 210 hours of unpaid
overtime); see also Daniels v. 1710 Realty, LLC, 497 Fed. Appx. 137, 139 (2d Cir. 2012) (stating that “[i]t
is only ‘once an employer knows or has reason to know that an employee is working overtime’ that the
employer ‘cannot deny compensation simply because the employee failed to properly record or claim his
overtime hours.’”) (quoting Kuebel v. Black & Deck er Inc., 643 F.3d 352, 362 (2d Cir. 2011)).

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limitations period or the applicability of any possible exemptions, Moschos has not met
her burden under the FLSA, and her claim must be dismissed.
II.

Claims For Promissory Estoppel and Pattern or Practice
Moschos does not dispute that her claims for promissory estoppel and pattern or

practice under the FLSA should be dismissed. Accordingly, Moschos’s second and
third theories of recovery will be dismissed.
III.

State Law Claims for Unpaid Wages
Moschos’s fourth and fifth theories of recovery assert claims for breach of

contract and for amounts due under the Nebraska Wage Payment and Collection Act
(“NWPCA”), Neb Rev. Stat. § 48-1231 (Reissue 2004). Creighton argues that her state
law claims are based on the existence of an employment contract, and that there is no
dispute that Moschos was an at-will employee. (Filing No. 23 at 20-21.) The record
demonstrates that no evidence supports the existence of an employment contract, and
Moschos’s claim for breach fails.

Moschos does not challenge this conclusion and

concedes that her “state law claim is entirely dependent upon the wage and hour claim
and is not a separate claim factually. It is simply another way to recover upon the same
set of facts. It is not a new claim.” (Filing No. 26 at 15.) Because Moschos has failed
to meet her burden under the FLSA, and she concedes that her state law claims are
entirely dependent upon her FLSA claims, her state law claims will be dismissed.
CONCLUSION
Under the FLSA, Moschos bears the burden of demonstrating that she worked
above her scheduled hours without compensation and that Creighton knew or should
have known that she was working overtime.
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Moschos presented no evidence that

Creighton knew she worked overtime, nor has she presented any evidence of her actual
damages. Because she failed to meet her burden of proof, both her FLSA claims and
state law claims under the NWPCA will be dismissed. Accordingly,
IT IS ORDERED:
1.

The Motion for Summary Judgment (Filing No. 22) filed by Defendant
Creighton University is granted;

2.

All other pending motions in this case are denied as moot;

3.

This action is dismissed, with prejudice; and

4.

A separate judgment will be entered.

Dated this 4th day of June, 2013.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge

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