Kurpan v. CNC Precision Machine, Inc.

Filing 42

Memorandum Opinion and Order denying Defendant's Motion for summary judgment (Doc. # 30 ). Judge John R. Adams on 8/28/24. (K,C)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
PAUL KURPAN,
Plaintiff,
v.
CNC PRECISION MACHINE, INC.
Defendant.

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CASE NO: 5:23-cv-00070
JUDGE JOHN ADAMS
MEMORANDUM OF OPINION
AND ORDER
(Resolves Doc. 30)

Pending before the Court is Defendant CNC Precision Machine, Inc.’s (“CNC” or
Defendant) motion for summary judgment. Doc. 30. Upon review, the Court DENIES Defendant’s
motion for summary judgment.
I.

FACTS
Defendant is a “hydraulic fittings manufacturer.” Doc. 14, p. 2-3. Defendant provides

services including computer numerical control turning, computer numerical control milling, and
multi-spindle screw machining. Id. Plaintiff commenced his employment with Defendant on
approximately November 2, 2020, as a Machine Operator, and ended his employment on
September 15, 2022. Doc. 30, p. 2, 4. Plaintiff’s daily clock-in procedure required him to enter his
employee ID number into a computer. Id. Defendant utilized a bell system to ring at shift start and
shift end, as well as 10 minutes prior to shift end to notify employees to begin cleaning up their
stations. Doc. 30, p. 3. Clean-up duties included mopping the floor, turning off the machine,
refilling machine fluids, and counting parts. Id. Shift times are 8 a.m. to 4:30 p.m. Id.
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In his deposition, Plaintiff provided specifics of his tasks and work expectations, including
testimony that he was expected to come in early and stay late in order to complete his tasks. Doc.
34, p.3-4. Defendant provided the deposition of Al Miller, Plaintiff’s supervisor, which provides
conflicting testimony that there was no compensable work completed prior to 8 a.m. Doc. 37, p.
2-3. Defendant has also provided timesheets which detail the Plaintiff’s exact clock-in and clockout times for the duration of his employment. Doc. 14, p. 5. Doc. 30, p. 4. Alongside the timesheets,
Defendant asserts that it has a lawful rounding policy that “rounds time to shift start and stop,
unless an employee has worked overtime.” Doc. 30, p. 4. However, as noted below, Defendant
fails to provide evidence of said policy other than its own CFO’s conclusory statement. Defendant
also highlights the existence of a policy that requires employees to seek permission to work
overtime, however, Defendant does not provide any such policy for the process to report
uncompensated time. Id. p.8.
II.

LEGAL STANDARD
Rule 56(c) of the Federal Rules of Civil Procedure governs summary judgment motions

and provides:
The judgment sought shall be rendered forthwith if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law * * *.
In reviewing summary judgment motions, this Court must view the evidence in a light most
favorable to the non-moving party to determine whether a genuine issue of material fact exists.
White v. Turfway Park Racing Ass'n, Inc., 909 F.2d 941, 943–944 (6th Cir. 1990).
A fact is “material” only if its resolution will affect the outcome of the lawsuit. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is appropriate whenever the
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non-moving party fails to make a showing sufficient to establish the existence of an element
essential to that party’s case and on which that party will bear the burden of proof at trial. Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). Moreover, “the trial court no longer has a duty to
search the entire record to establish that it is bereft of a genuine issue of material fact.” Street v.
J.C. Bradford & Co., 886 F.2d 1472, 1479–1480 (6th Cir. 1989) (citing Frito–Lay, Inc. v.
Willoughby, 863 F.2d 1029, 1034 (D.C. Cir. 1988)).
The burden of production for the movant is to identify which portions of the evidence
“demonstrate the absence of a genuine issue of material fact” in regard to an essential element or,
alternatively, to demonstrate a showing that there is “literally no evidence in the record” in support
of an essential element of the other party’s initial claim. Celotex Corp. v. Catrett, 477 U.S. 317,
323, 332 (1986). The non-moving party is under an affirmative duty to point out specific facts in
the record as it has been established which create a genuine issue of material fact. Fulson v. City
of Columbus, 801 F. Supp. 1, 4 (S.D. Ohio 1992). The non-movant must show more than a scintilla
of evidence to overcome summary judgment; it is not enough for the non-moving party to show
that there is some metaphysical doubt as to material facts. Id.
III.

LAW AND ANALYSIS
A.

Plaintiff’s Fair Labor Standards Act Violation Claim

Plaintiff asserts that Defendant violated the Fair Labor Standards Act (FLSA), 29 U.S.C.
§207, by not compensating him for all overtime hours worked from November 2020 to October
2022.
Defendant moves for summary judgment asserting three arguments: 1) that Plaintiff’s
conclusory allegations regarding his daily schedule does not establish a genuine issue of material
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fact to survive summary judgment, 2) to the extent Plaintiff did perform compensable off-the-clock
work, such time was de minimis; and 3) Plaintiff failed to comply with Defendant’s polices related
to reporting overtime and its rounding policy is permissible and did not result in unpaid overtime
wages. Doc. 30, p. 10. The Court will address Defendant’s arguments in turn.
FLSA requires employers to pay overtime to employees who work more than 40 hours per
week. 29 U.S.C. § 207(a)(1). Pursuant to FLSA, an employer must pay an employee overtime
compensation at the rate of “not less than one and a half times the regular rate” for every hour over
40 hours. Id. Plaintiff bears the burden to prove that he has performed overtime work for which he
was not compensated. Viet v. Le, 951 F.3d 818 at 822 (6th Cir. 2020), quoting Anderson v. Mt.
Clemens Pottery Co., 328 U.S. 680, 687 (1946).
B.

Plaintiff’s Evidence Regarding His Schedule

Defendant first contends that Plaintiff’s conclusory statements regarding overtime do not
meet his burden to establish liability under FLSA. Doc. 30, p. 7. Id. at p. 9. The Court notes that
Defendant, as the movant, has the initial burden to point this Court to portions of the record
demonstrating an absence of a genuine issue of material fact. Civ. R. 56. Generally, Defendant
points to Plaintiff’s deposition testimony and its own time records in an attempt to satisfy its
burden, claiming that this testimony is “conclusory” and therefore not proper. Defendant relies on
Miller’s deposition, who testified that there was no compensable work completed prior to 8 a.m.
Doc. 37, p. 2-3. Upon review, what Defendant refers to as “conclusory” is actually admissible
evidence that contradicts its own view of the case. In opposition, Plaintiff asserts that his
deposition testimony detailing specific tasks during overtime hours as well as Defendant’s own

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timekeeping records are not conclusory, and establish a genuine issue of material fact, thus
precluding summary judgment at this stage. Doc. 34, p. 20.
This case is directly governed by the Sixth Circuit Court of Appeals in Viet. Viet v. Le, 951
F.3d 818. The issue in Viet was whether the evidence Plaintiff presented in his motion for summary
judgment would permit a reasonable jury to conclude that he worked more than 40 hours per week.
Id. at 822. According to the Court, a plaintiff cannot survive a motion for summary judgment by
simply putting forth a “conclusory statement” about overtime work because it alone does not allow
a rational jury to conclude that he worked overtime. Id. at 825. “Conclusory statements unadorned
with supporting facts are insufficient to establish a factual dispute that would defeat summary
judgment.” Id., citing Alexander v. CareSource, 576 F.3d 551, 560 (6th Cir. 2009). The Court
explained:
When applying these general Rule 56 standards in this FLSA context, courts have
considered the level of evidence that employees must present to create a jury
question over whether they worked overtime. Generally speaking, if an employee
describes a specific work schedule exceeding 40 hours, courts have found the
testimony sufficient. If, by contrast, the employee testifies generically that the
employee worked overtime without providing details to support this claim, courts
have found that the testimony falls short.
Viet, 951 F.3d at 823.
Defendant asserts that Plaintiff “cannot provide any witness or other evidentiary support
of the claim other than his own uncorroborated testimony.” Doc. 30, p. 7. Plaintiff provides
specifics of his tasks and work expectations in his deposition, including an expectation to come
early and stay late to complete tasks. Doc. 34, p.3-4. Plaintiff’s deposition, as record evidence, was
subject to cross-examination and supported by time-keeping records, which distinguishes it from
an unsupported, self-serving affidavit like that in Viet. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871,
888 (1990). Further, Plaintiff’s deposition provides testimony that is in direct opposition to
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Miller’s testimony stating that no compensable work was completed prior to 8 a.m. Doc. 37, p. 23. Defendant has failed to demonstrate that Plaintiff cannot prove the plausibility of their claim
that compensable work was done prior to 8 a.m. Rather, this dispute in the factual record presents
a genuine issue of material fact sufficient to survive summary judgment as opposed to an
unsupported legal conclusion.
C.

De Minimis Time

Plaintiff next asserts that even if Plaintiff did establish that he worked a “few minutes prior
to the start of his shift each day” that it was de minimis and not in violation of the FLSA. Doc. 30,
p. 8.
Defendant claims that a de minimis calculation is anything under 10 minutes as a matter of
law. Doc 30, p. 8. However, this is not true. While “Courts have found daily periods of
approximately 10 minutes de minimis even though otherwise compensable,” this is far from
establishing a hard and fast rule that employers can claim any failure to pay and employee for
compensable work so long as it is less than 10 minutes. Doc. 30, p. 8, citing Green v. Planters Nut
Chocolate Co., 177 F.2d 187, 188 (4th Cir. 1949) (finding 10 minutes to be de minimis).
The de minimis doctrine is appropriately applied in instances where the periods of time
spent in preliminary activities is “insubstantial and insignificant” and does not necessitate
compensation. Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 693 (1946). There are three
factors for consideration in assessing whether otherwise compensable time is de minimis: “1) the
practical administrative difficulty of recording the additional time; 2) the size of the claim in the
aggregate; and 3) whether ‘the claimants performed the work on a regular basis.’" Brock v. City of
Cincinnati, 236 F.3d 793, 803-4 (6th Cir. 2001) quoting Lindow v. United States, 738 F.2d 1057,
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1062-63 (9th Cir. 1984). Further, in applying the de minimis doctrine, the determination of the
extent of work performed is a “purely factual issue.” Mt. Clemens Pottery, 328 U.S. at 692.
Thus, a de minimis determination inherently requires a determination of fact as to the extent
of work performed, which as noted above is in dispute. Defendant makes no effort to point to any
evidence in the record to support its claim that Plaintiff’s alleged overtime meets the factors to
qualify it as de minimis time. Instead, Defendant places blame on Plaintiff for not informing it
that he was performing work pre and post shift as required by its policy. However, Defendant
does not present this policy for this Court’s review, nor does such an argument excuse its failure
to satisfy its burden at the summary judgment stage. Accordingly, Defendant is not entitled to
summary judgment on this ground.
D.

Defendant’s Policies

Plaintiff asserts that Defendant knowingly deducted time worked to reduce labor costs
through an illegal time-rounding policy which “circumvented the requirements of FLSA.” Doc.
14, p. 9. Defendant argues that Plaintiff fails to provide any evidence that the practice resulted in
a loss of compensation and, further, that its time rounding practices are actually lawful under 29
C.F.R. § 785.48(b). Doc. 30, p.9.
Time rounding is a lawful practice where it does “not result, over a period of time, in failure
to compensate the employees properly for all the time they have actually worked.” 29 C.F.R. §
785.48(b). This practice is “stopping time to the nearest 5 minutes, or to the nearest one-tenth or
quarter of an hour.” Id. The lawfulness of this practice is based on the presumption that “this
arrangement averages out so that the employees are fully compensated for all the time they actually
work.” Id. Therefore, time rounding practice must be evidenced as neutral. See Corbin v. Time
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Warner Entm't-Advance/Newhouse P'ship, 821 F.3d 1069, 1076 (9th Cir. 2016) cited in Rapp v.
Forest City Techs., Inc., No 1:20-cv-2059 2021 WL 2982005, *4 (N.D. Ohio July 15, 2021).
Defendant asserts that its time rounding practice is lawfully neutral and “did not
unreasonably favor the employer” as Plaintiff “rarely clocked in more than a few minutes early.”
Doc 30, p.4. Once again, it is Defendant’s burden to point this Court to the portions of the record
establishing the absence of material fact. Defendant has failed to do so, instead providing a
declaration of its Chief Financial Officer Marc Karyo concluding that “Kurpan’s pay records show
that CNC Precision’s rounding policy did not unreasonably favor CNC Precision.” Doc. 30-1, p.
2. Defendant makes no attempt to support this conclusory statement or to point to any evidence
that the time rounding policy ever rounded in Plaintiff’s favor. In response, Plaintiff asserts that
Defendant modified time to their benefit 97% of the time. Doc 34, p.5. Plaintiff demonstrates
through the timesheet records that the time rounding policy always rounded to 8 a.m. regardless
of when Plaintiff actually clocked in, even 10-15 minutes prior to 8 a.m. Doc. 14 p. 5. Doc. 34 p.
3-4. Defendant has failed to satisfy its burden that it is entitled to summary judgment on this issue.
IV.

CONCLUSION
Based upon the above, Defendant’s motion for Summary Judgment is DENIED.

IT IS SO ORDERED.

DATE: August 28, 2024

/s/ John R. Adams
Judge John R. Adams
UNITED STATES DISTRICT COURT

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