Ortiz v. Anchor Realty Construction, Inc. et al

Filing 82

ORDER granting in part and denying in part (51) Motion for Summary Judgment; finding as moot (56) Motion for Leave to Appear ; granting in part and denying in part (70) Motion to Strike in case 2:08-cv-00800-GLF-EPD; granting in part and denying i n part (26) Motion for Summary Judgment; finding as moot (30) Motion for Leave to Appear ; granting in part and denying in part (44) Motion to Strike in case 2:09-cv-00337-GLF-EPD. Signed by Judge Gregory L Frost on 6/14/11. Associated Cases: 2:08-cv-00800-GLF-EPD, 2:09-cv-00337-GLF-EPD (kn)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JESUS MANUEL ORTIZ,
Plaintiff,

Case No. 2:08-cv-800
JUDGE GREGORY L. FROST
Magistrate Judge E.A. Preston Deavers

v.
ANCHOR REALTY
CONSTRUCTION, INC., et al.,
Defendants.

JESUS MANUEL ORTIZ,
Plaintiff,

Case No. 2:09-cv-337
JUDGE GREGORY L. FROST
Magistrate Judge E.A. Preston Deavers

v.
ANCHOR REALTY
CONSTRUCTION, INC., et al.,
Defendants.

OPINION AND ORDER
The captioned consolidated cases are before the Court for consideration of the following
filings:1
(1) a motion for summary judgment filed by Defendants (ECF No. 51), a memorandum in
opposition2 filed by Plaintiff (ECF No. 68) that incorporates a memorandum in opposition filed

1

For ease of reference, the Court shall refer only to the docket numbers of the filings in
Case No. 2:08-cv-800 unless otherwise specified. This Opinion and Order applies to the
corresponding filings in Case No. 2:09-cv-337.
2

Plaintiff states in his memorandum in opposition that he “respectfully requests that this
Court deny [D]efendants’ Motion for Summary Judgment and enter Judgment on behalf of the
1

by movant the Office of the Franklin County Prosecuting Attorney (“County Prosecutor”) (ECF
No. 56-1), and a reply memorandum filed by Defendants (ECF No. 69);
(2) a motion for leave to file an amicus brief filed by the County Prosecutor (ECF No.
56), a memorandum in opposition filed by Defendants (ECF No. 79), and a reply memorandum
filed by the County Prosecutor (ECF No. 81); and
(3) a motion to strike filed by Defendants (ECF No. 70), a memorandum in opposition
(incorrectly labeled as a motion in opposition) filed by Plaintiff (ECF No. 78), and a reply
memorandum filed by Defendants (ECF No. 80).
For the reasons that follow, the Court finds the motion to strike well taken in part, the
motion for leave to be moot, and the motion for summary judgment well taken in part.
I. Background
Defendants, Anchor Realty Construction, Inc., Anchor Management Group, Inc., and
LEED Construction, Ltd. (collectively, “Anchor”), are in the construction business. From
August 15, 2005 to February 10, 2008, Plaintiff, Jesus Manuel Ortiz, performed work for
Defendants. The precise nature of this work is in partial dispute, as is whether Plaintiff was an
employee or an independent contractor. Equally in dispute is whether Plaintiff, who is of
Hispanic origin, was acting as a subcontractor with his own crew of employees or whether he
was an Anchor employee supervising Anchor employees. What is not in dispute is that
Defendants would pay Plaintiff by check, who in turn would pay the employees in cash.

Plaintiff.” (ECF No. 68, at 9.) The former request is appropriate in a memorandum in
opposition, while the latter request for judgment is not. If Plaintiff wanted to move for summary
judgment, he could and should have filed a motion. Inserting an essentially throwaway tagalong reference in a brief does not constitute an appropriate and viable motion for summary
judgment.
2

On August 19, 2008, Plaintiff filed a lawsuit against Defendants constituting Case No.
2:08-cv-800. The Complaint asserted a claim under the Fair Labor Standards Act and the Portal
to Portal Act (“FLSA”). (ECF No. 2.) Plaintiff avers that he worked on-site for 90 hours per
week for specified times, that he was on call for 24.5 hours per week during that same period,
and that he is owed overtime pay for this period. In the year prior, Plaintiff asserts that he
worked a similar number of hours and is also due overtime pay. He claims that Defendants
controlled his hours of work, location of work, and performance of work, provided the tools used
at job sites, and required him to work exclusively for Defendants during this period. Defendants
contend that Plaintiff worked as an independent contractor. They assert counterclaims for
conversion, fraud, unjust enrichment, and declaratory judgment. (ECF No. 45.)
Plaintiff later filed a second action against Defendants on April 28, 2009. In Case No.
2:09-cv-337, he asserts federal and state law claims for discrimination under 42 U.S.C. §
2000(e), 42 U.S.C. § 1981, and Ohio Revised Code Chapter 4112, as well as claims of disparate
impact under Title VII and common law fraud. Plaintiff avers claims that he was employed as a
construction crew leader throughout his time with Defendants and that he was also required to
perform oral translation services for other Hispanic workers. Plaintiff claims that Defendants
failed to withhold proper taxes and that he was required to pay the other Hispanic workers from
a single check made out to him representing all hours collectively worked by Hispanic
employees. He also claims there was a wage differential between his own pay rate and that of
members of other unprotected classes. Finally, he asserts that Defendants sought to require him
to obtain signatures from the other Hispanic workers on written agreements that attempted to
create an independent contractor status for all Hispanic workers.

3

Defendants filed a motion for summary judgment on most but not all of the claims and
counterclaims involved in this consolidated litigation. (ECF No. 51.) The County Prosecutor
then filed a motion for leave to file a memorandum in opposition as amicus curiae (ECF No. 56),
and Defendants filed a motion to strike portions of various affidavits submitted in the course of
the summary judgment briefing (ECF No. 70). The parties have completed briefing on all three
motions, which are ripe for disposition. Because the motion to strike and the motion for leave to
file a brief as amicus curiae can affect the record, this Court is obligated to address those filings
before ruling on the motion for summary judgment. Brainard v. Am. Skandia Life Assurance
Corp., 432 F.3d 655, 667 (6th Cir. 2005) (“a district court should dispose of motions that affect
the record on summary judgment before ruling on the parties’ summary judgment motions”).
II. Motion to Strike
On February 1, 2011, Defendants filed a motion to strike two affidavits by Plaintiff.
(ECF No. 70.) The first affidavit is a November 1, 2010 affidavit (ECF NO. 56-2) that the
County Prosecutor filed attached to the Motion for Leave to File Brief as Amicus Curiae (ECF
No. 56). The affidavit is also separately filed on the docket. (ECF No. 58.) The second
affidavit is a January 18, 2011 affidavit filed as an attachment to Plaintiff’s memorandum in
opposition to Defendants’ motion for summary judgment. (ECF No. 68-1.) Defendants make
five basic arguments in support of their motion to strike these affidavits. None of these
arguments prove persuasive.
Defendants first contend that because Plaintiff is illiterate and because there is no
credible evidence indicating that he knows or understands the contents of the affidavits, the
affidavits are unreliable and cannot qualify as evidence under Federal Rule of Civil Procedure

4

56(c). In response to this assertion, Plaintiff submitted a February 21, 2011 affidavit in which he
attests that all three of his affidavits were read to him prior to his signing the documents, that he
agreed with their content, and that the erroneous references Defendants point out were simply
minor mistakes. (ECF No. 78-1, Ortiz Aff. ¶¶ 5-7.) Defendants disregard these sworn
representations and ask the Court to deem the third affidavit unbelievable.
There is no persuasive basis on the record before this Court to accept Defendants’
propositions that Plaintiff has submitted three fraudulent affidavits. There is also no basis to
accept Defendants’ implicit premise that an illiterate individual can never submit an affidavit
because he or she can never truly know that what was read to him or her was the actual affidavit
content. To reject that the affidavits were read to Plaintiff as he describes would mean that
counsel failed to accurately read the affidavits and then participated in the submission of a
fraudulent document misrepresenting their actions. There is no basis to believe that counsel
Mark Chuparkoff failed to act within his ethical duties as an officer of this Court in notarizing
and submitting the February 21, 2011 affidavit. Because Defendants’ conjecture regarding
Plaintiff’s ability to understand the affidavits he signed lacks sufficient evidentiary support, this
Court declines Defendants’ invitation to reject Plaintiff as competent to testify to the matters
stated in his affidavits.
In their second argument, Defendants aver that portions of both affidavits contradict Rule
36 admissions. Defendants assert that, pursuant to Rule 36, they served requests for admissions
upon Plaintiff at his last known address on July 30, 2010. During this period of time, Plaintiff
was without counsel, with his prior counsel having withdrawn and Plaintiff not yet having
obtained new counsel. Plaintiff never responded or objected to the requests and in fact alleges

5

that he never heard of them until November 1, 2010. Defendants contends that the failure to
respond thereby deems the matters admitted.
Rule 36 indeed contemplates admission by default, stating that “[a] matter is admitted
unless, within 30 days after being served, the party to whom the request is directed serves on the
requesting party a written answer or objection addressed to the matter and signed by the party or
its attorney.” Fed. R. Civ. P. 36(a)(3). The rule also provides, however, that a court, on motion,
may allow a party to withdraw or amend the otherwise conclusively established admission. Fed.
R. Civ. P. 36(b). Such withdrawal or amendment is permissible “if it would promote the
presentation of the merits of the action and if the court is not persuaded that it would prejudice
the requesting party in maintaining or defending the action on the merits.” Fed. R. Civ. P. 36(b).

Implicit in the rule is that “[a] ‘district court has considerable discretion over whether to
permit withdrawal or amendment of admissions.’ ” Kerry Steel, Inc. v. Paragon Indus., Inc., 106
F.3d 147, 153-54 (6th Cir. 1997) (quoting Am. Auto. Ass’n v. AAA Legal Clinic of Jefferson
Crooke, P.C., 930 F.2d 1117, 1119 (5th Cir. 1991)). Perhaps less obvious from the face of Rule
36 is that, as the Sixth Circuit has held, a formal motion is not always required for a court to
grant leave to withdraw or amend admissions. Id. at 154. See also United States v. PetroffKline, 557 F.3d 285, 293 (6th Cir. 2009). Rather, “a withdrawal ‘may be imputed from a party’s
actions.’ ” Petroff-Kline, 557 F.3d at 293-94 (quoting Chancellor v. City of Detroit, 454 F.
Supp. 2d 645, 666 (E.D. Mich. 2006)).
The circumstances here evince Plaintiff’s intent to withdraw the admissions. After
Plaintiff received the requests for admission, he filed two affidavits, the first of which was filed

6

only a day after he purportedly learned of the admission requests. Functioning as belated
denials, both affidavits directly contradict the contentions that Defendants would like the Court
to deem conclusively established. This Court finds such actions by Plaintiff effectuated an
informal albeit clear attempted withdrawal of the default admissions and the filing of late
responses. See White Consol. Indus., Inc. v. Waterhouse, 158 F.R.D. 429, 432 (D. Minn. 1994)
(Rule 36 admissions case in which the court noted that “ ‘[i]t does not further the interests of
justice to automatically determine all the issues in a lawsuit and enter summary judgment against
a party because a deadline is missed” (quoting Hadra v. Herman Blum Consulting Engineers, 74
F.R.D. 113, 114 (N.D. Tex. 1977))).
The circumstances here also satisfy the test for permitting such withdrawal by Plaintiff.
The first prong of the Rule 36(b) test is met “when upholding the admission would practically
eliminate any presentation on the merits of the case.” Hadley v. United States, 45 F.3d 1345,
1348 (9th Cir. 1995). Second,
[t]he prejudice contemplated by Rule 36(b) is “not simply that the party will now
have to convince the factfinder of its truth. Rather it relates to the difficulty a party
may face in proving its case, e.g., caused by the unavailability of key witnesses,
because of the sudden need to obtain evidence” with respect to the questions
previously deemed admitted.
Id. (quoting Brook Vill. N. Assocs. v. Gen. Elec. Co., 686 F.2d 66, 70 (1st Cir. 1982)). Applying
these standards to the instant cases, the Court finds that under the first prong of Rule 36(b), the
admissions go to the core of this litigation. For example, Defendants asked Plaintiff to “Admit
YOU were an independent contractor during all work performed for ANCHOR.” (ECF No. 512, at 3, Request No. 11). Allowing such an admission would eliminate any possibility of
reaching the merits. Furthermore, the Court is not persuaded that allowing withdrawal of the

7

admissions would prejudice Defendants in the Rule 36 sense. Accordingly, the Court in its
discretion recognizes the admissions as withdrawn and finds no consequent grounds to strike the
affidavit content.
Defendants’ next three arguments for striking affidavit content all fall under Rule
56(c)(4), which requires that an affidavit “be made on personal knowledge, set out facts that
would be admissible in evidence, and show that the affiant or declarant is competent to testify on
the matters stated.” Fed. R. Civ. P. 56(c)(4). Defendants assert in their third argument that the
Court must strike portions of the affidavits because they are not based on personal knowledge.
In their fourth argument, Defendants then contend that the Court must strike portions of the
affidavits because they contain conclusory statements not based on facts. Finally, Defendants
posit in their last argument that the Court must strike portions of the affidavits because they
contain inadmissible hearsay. The Court will address each affidavit paragraph Defendants
laboriously target in turn.
Paragraph four of Plaintiff’s January 18, 2011 affidavit expresses Plaintiff’s opinion as to
why he was named in another lawsuit. Defendants argue that this is impermissible speculation
not based on a factual foundation arising from personal knowledge. There are indeed no facts
cited as grounds upon which Plaintiff bases his assertion. The Court strikes this conclusory
paragraph.
Paragraph five of Plaintiff’s January 18, 2011 affidavit includes Plaintiff’s statement that
at all times detailed in the affidavit, Anchor employed him. Defendants assert that this is a legal
conclusion lacking a proper foundation. See Harrah’s Entm’t, Inc. v. Ace Am. Ins. Co., 100 F.
App’x 387, 394 (6th Cir. 2004) (“ ‘It is well settled that courts should disregard conclusions of

8

law (or “ultimate fact”) found in affidavits’ submitted for summary judgment.” (quoting F.R.C.
Int'l, Inc. v. United States, 278 F.3d 641, 643 (6th Cir. 2002))). The Court need not strike the
first sentence of paragraph five, which is the only sentence of that paragraph Defendants target,
and can instead consider such statements for whatever value (if any) they possess in the
summary judgment context. See Carl Kelley Constr. LLC v. WTNM Tech., Ltd., No. CIV 080379 JB/RLP, 2009 WL 1312904, at *1 (D.N.M. Jan. 5, 2009) (“Certain aspects of the
challenged paragraphs can be understood as making legal conclusions. The Court does not need
to strike the affidavit, however, because the affidavit contains legal conclusions. The Court will
come to its own determination of the legal issues involved in this case.”).
Paragraph six of Plaintiff’s January 18, 2011 affidavit contains Plaintiff’s assertion that
he was hired by Anchor and performed work for the company at various locations. Defendants
argue that “[t]hat this is not appropriate affidavit testimony because Mr. Ortiz states he was
‘hired’ by Anchor but provides no factual support to show he was an ‘employee.’ ” (ECF No. 70,
at 17.) Defendants’ objections parses the affidavit statement to reach a possible inference that
they then attack, but the affidavit paragraph does not state Plaintiff was an employee.
Paragraph nine of Plaintiff’s January 18, 2011 affidavit speaks to what Plaintiff perceived
he was permitted to do by Defendants and what Anchor purportedly knew concerning side jobs
Plaintiff and other employees worked. The Court agrees with Defendants that the portion of the
paragraph setting forth imputed knowledge should be stricken. See Perez v. Volvo Car Corp.,
247 F.3d 303, 316 (7th Cir. 2001) (rejecting affidavit’s statement of what a party knew when
affidavit lacked specificity demonstrating personal knowledge). See also Spencer v. City of
Hollywood, Fla., No. 08-60028-CIV, 2009 WL 980274, at *3 n.4 (S.D. Fla. Apr. 10, 2009)

9

(noting that “broad assertions in affidavits, made without specific supporting facts, are
insufficient to prevent summary judgment”).
Paragraph eleven of Plaintiff’s January 18, 2011 affidavit is a blanket assertion of
disagreement with the entire contents of two other witnesses’ affidavits. The Court agrees that
such a sweeping, conclusory statement is impermissible and strikes the paragraph.
Paragraph thirteen of Plaintiff’s January 18, 2011 affidavit indicates that Anchor
controlled the jobs Plaintiff performed. Defendants posit that this is a legal conclusion that
Plaintiff presents without an appropriate factual foundation. The obvious counterargument is
that although Plaintiff does not provide examples, he is certainly drawing upon personal
knowledge in stating whether he worked at his own direction or the direction of Anchor. Erring
if at all on the side of caution, however, the Court strikes the paragraph.
Paragraph seventeen of Plaintiff’s January 18, 2011 affidavit provides that had Plaintiff
known earlier the distinction between an employee and an independent contractor, he would
never had testified that he was an independent contractor. Defendants argue that this is
inappropriate because Plaintiff fails to provide a factual foundation for the legal implications
between the two terms. This argument overreaches and requires more than Rule 56
contemplates.
Paragraph five of Plaintiff’s November 1, 2010 affidavit states what various individuals
allegedly did. Defendants disagree with Plaintiff’s classification of these individuals’ roles and
argues that Plaintiff does not have personal knowledge of who the company officers were at the
time in question. Plaintiff may or may not be correct in his factual representations as to the
individuals’ actions and status, but the correctness of the factual assertions is not an issue for

10

disposition for today. Additionally, there is no basis to conclude that Plaintiff’s factual
representations are not based on his personal knowledge, regardless of whether Plaintiff is
correct.
Paragraphs seven and eleven of Plaintiff’s November 1, 2010 affidavit provides that
various agents or employees of Defendants paid select employees in cash. Defendants argue that
this affidavit content is inappropriate because Plaintiff has failed to provide a factual foundation
demonstrating his personal knowledge of this purported fact. The Court agrees and strikes the
first sentences of paragraphs seven and eleven. Plaintiff’s blanket statement in the first
paragraph of his affidavit that the entirety of the affidavit is based on personal knowledge unless
otherwise indicated cannot save this or any other affidavit provision. See Spencer, 2009 WL
980274, at *3 n.4 (“The inclusion of a blanket statement that the affidavit is made upon personal
knowledge will not save statements made upon belief, no matter how strong the belief.” (citing
Pace v. Capobianco, 283 F.3d 1275, 1279 (11th Cir. 2002))).
Paragraph eighteen of Plaintiff’s November 1, 2010 affidavit describes in part the
formation of Defendant LEED Construction, Ltd., the position Megan Gunsorek allegedly
played in that company, and her or another individual’s purported activities at a construction
site. Defendants argue that the affidavit fails to indicate that Plaintiff has personal knowledge of
this information. The Court agrees and strikes the first three sentences and the last two sentences
of paragraph eighteen.
Paragraph twenty-five of Plaintiff’s November 1, 2010 affidavit contains assertions
regarding the ownership or provision of tools, equipment, and materials. Defendants correctly
assert that Plaintiff fails to provide any basis as to any personal knowledge underlying these

11

representations. The Court therefore strikes all but the last sentence of paragraph twenty-five.
Paragraph twenty-eight of Plaintiff’s November 1, 2010 affidavit indicates that Plaintiff’s
rate of pay never varied based on factors such as his profit. Defendants attack the statement on
the grounds that the statement implies that Plaintiff understands the meaning of “profit” for an
independent contractor. At best, Defendants’ argument goes to the weight of Plaintiff’s sworn
testimony more than it does its admissibility. In any event, the argument fails to present grounds
for striking the targeted content.
Paragraph thirty-four of Plaintiff’s November 1, 2010 affidavit states that Plaintiff did
several side jobs as an independent contractor during a specified period of time. Defendants
argue that this presents a legal conclusion that the referenced side jobs are not evidence that
Plaintiff is in fact an independent contractor. Again, Defendants overreach in their motion to
strike by relying on argument going more to the weight of Plaintiff’s sworn testimony than its
admissibility.
Paragraph thirty-eight of Plaintiff’s November 1, 2010 affidavit contains Plaintiff’s
explanation of why he previously stated in another case that he was an independent contractor.
Defendants first argue that this content is impermissible because Plaintiff fails to provide a
factual basis for his changed belief that demonstrates that he knows the legal distinction between
an independent contractor and an employee. Plaintiff does not have to set forth in detail the
foundation for his belief beyond pointing to what personal knowledge he relies upon, however,
and he does just that by explaining that he discussed the matter with his own counsel.
Defendants next argue that Plaintiff is presenting a legal conclusion that is inappropriate
for an affidavit. As noted, legal conclusions are indeed impermissible. The line between factual

12

contention and conclusion of law is not always as clear as Defendants suggest, however, and
Plaintiff’s statement as to his belief is presented as his impression and his explanation for his
prior testimony. The Court declines to strike the hardly binding statement.
Finally, Defendants argue that a portion of the paragraph is impermissible because
Plaintiff is attempting to testify based on hearsay from his counsel. Plaintiff has not indicated
what his counsel said; rather, Plaintiff simply cites to conversations with his counsel as the
foundation for Plaintiff’s subjective belief that he was an employee during a specified period.
Because no statement by counsel is offered for the truth of the matter asserted, no hearsay issue
warrants striking the statement at issue.
Paragraph forty of Plaintiff’s November 1, 2010 affidavit provides that Plaintiff did no
work as an independent contractor at a donut factory, but only as an Anchor employee.
Defendants characterize the paragraph as containing inaccurate assumptions and attempt to add
factual contentions via argument as to the tenant nature of the donut business and how Plaintiff
was paid. Defendants then conclude that Plaintiff’s purportedly incorrect representations are not
based on personal knowledge. There is no basis for accepting here either Defendants’ version of
the facts or that Plaintiff lacks the personal knowledge to make the statements set forth in the
paragraph. See Relational Design & Tech., Inc. v. Data Team Corp., Civ. A. No. 91-2452-O,
1992 WL 350219, at *2 (D. Kan. Oct. 21, 1992) (“To the extent that the affiant is testifying
regarding whether he was employed during the period in question and whether he performed
certain acts pursuant to that employment, the testimony is perfectly proper.”). Defendants also
attack the paragraph on the grounds that Plaintiff has set forth a legal conclusion without setting
forth the grounds for his knowing its underlying foundation. Plaintiff can testify to the nature of

13

the job–whether he controlled the job or whether he worked under another entity–and
Defendants’ argument to the contrary requires too much of a lay witness.
Paragraph forty-three of Plaintiff’s November 1, 2010 affidavit sets forth Plaintiff’s
statement that during a specific period of time, he was dependent on Anchor for his income.
Defendants challenge the statement as conclusory and parses the meaning of dependent.
Certainly, Plaintiff more than anyone can speak to what entity he relied upon for making money.
Defendants’ argument that essentially disagrees with Plaintiff’s wording and meaning goes to the
weight of his testimony and not its admissibility.
Paragraph forty-six of Plaintiff’s November 1, 2010 affidavit includes statements based
upon Plaintiff’s beliefs concerning whether Defendants are providing Misty Smitley with
financial support as of October 24, 2010, and whether Defendants owned the apartment
referenced in that paragraph. Similarly, Paragraph forty-seven of Plaintiff’s November 1, 2010
affidavit includes a statement regarding the ownership of a car and its registration that Plaintiff
avers is based upon belief. Defendants are correct that this is impermissible. See Alpert v.
United States, 481 F.3d 404, 409 (6th Cir. 2007) (holding that an affidavit statement that is based
upon belief and that does not demonstrate the affiant’s personal knowledge does not satisfy the
Rule 56 requirement). The Court therefore strikes the first sentence of paragraph forty-six, the
“owned by Anchor” clause of the second sentence of paragraph forty-six, and the second
sentence of paragraph forty-seven. Defendants overreach, however, in including the remaining
portions of paragraph forty-six in their attack. Certainly, Plaintiff’s awareness that he has three
children in common with Smitley is based on his personal knowledge, as is his ability to recall
where he performed work for Defendants.

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The last portion of Defendants’ motion to strike addresses whether the Court should grant
the County Prosecutor’s motion for leave to file an amicus brief, the denial of which Defendants
assumed would effectively “strike” Plaintiff’s November 1, 2010 affidavit. (ECF No. 56.) As
discussed in the following section, the amicus curiae issue is moot.
This Court GRANTS IN PART and DENIES IN PART the motion to strike as set forth
above. (ECF No. 70.)
III. Motion for Leave to File Brief as Amicus Curiae
As noted, the County Prosecutor has filed a motion for leave to file a brief as amicus
curiae. (ECF No. 56.) In light of Plaintiff’s summary judgment memorandum in opposition that
subsequently incorporated the proffered amicus brief and its supporting affidavit, however, the
County Prosecutor’s motion is moot. (ECF No. 68, at 1.) The Court therefore DENIES AS
MOOT the County Prosecutor’s motion. (ECF No. 56.)
IV. Summary Judgment Motion
A. Standard Involved
Summary judgment is appropriate “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 Court may therefore grant a motion for summary judgment if the nonmoving party
who has the burden of proof at trial fails to make a showing sufficient to establish the existence
of an element that is essential to that party’s case. See Muncie Power Prods., Inc. v. United
Tech. Auto., Inc., 328 F.3d 870, 873 (6th Cir. 2003) (citing Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986)).
In viewing the evidence, the Court must draw all reasonable inferences in favor of the

15

nonmoving party, which must set forth specific facts showing that there is a genuine issue of
material fact for trial. Id. (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986)); Hamad v. Woodcrest Condo. Ass’n, 328 F.3d 224, 234 (6th Cir. 2003). A
genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Muncie, 328 F.3d at 873 (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)). Consequently, the central issue is “ ‘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.’ ” Hamad, 328 F.3d at 234-35 (quoting Anderson,
477 U.S. at 251-52).
B. Analysis
In addition to the already discussed debate over what affidavit evidence is properly
before this Court, there is the issue of a flawed deposition transcript that the Court must raise sua
sponte. Defendants rely upon the September 28, 2007 deposition transcript of Plaintiff from the
case of Bryant Food Group, LLC v. Alum Creek Arc, LLC, which they have submitted as an
attachment to their motion. (ECF No. 51-6.) In an apparent attempt to comply with Fed. R. Civ.
P. 56 and S. D. Ohio Civ. R. 7.2, Defendants filed this transcript and an accompanying exhibit
with their summary judgment motion. This deposition transcript lacks an accompanying signed
court reporter certification, which is an “essential portion[] of [the] transcript[].” S. D. Ohio Civ.
R. 7.2(e). The error means that the transcript filed with this Court fails to qualify as proper
summary judgment evidence under Fed. R. Civ. P. 56. See Fed. R. Civ. P. 30(f)(1); Soliday v.
Miami County, Ohio, No. C-3-91-153, 1993 WL 1377511, at *5 n.4 (S.D. Ohio Nov. 22, 1993)
(stating that “the Court cannot consider” deposition testimony referenced in summary judgment

16

reply memorandum but not filed with court); Moore v. Florida Bank of Commerce, 654 F. Supp.
38, 41 n.2 (S.D. Ohio 1986) (unauthenticated deposition not filed with court is not proper
material under Rule 56); Podlesnick v. Airborne Express, Inc., 550 F. Supp. 906, 910 (S.D. Ohio
1982) (depositions not filed with court but referred to in summary judgment memoranda were
not considered in court’s decision). See also Orr v. Bank of America, NT & SA, 285 F.3d 764,
774 (9th Cir. 2002) (discussing unauthenticated deposition extracts). The Court therefore cannot
consider the uncertified deposition transcript.3 See Harris v. City of St. Clairsville, Ohio, 330 F.
App’x 69, 71-72 (6th Cir. 2008) (affirming refusal to consider uncertified depositions in
summary judgment analysis).
This result is neither harsh nor unexpected in light of the fact that the same core rationale
for exclusion has been applied multiple times in this District. See, e.g., Hinkle v. Norfolk S. Ry.
Co., No. 2:05-cv-574, 2006 WL 3783521, at *6 n.10 (S.D. Ohio Dec. 21, 2006); Harris v. City of
St. Clairsville, Ohio, No. C2-04-cv-1179, 2006 WL 3791404, at *4 (S.D. Ohio Dec. 21, 2006);
United States v. Standring, No. 1:04CV730, 2006 WL 689116, at *4 (S.D. Ohio Mar. 15, 2006).
Moreover, this understanding of the certification requirement is hardly unique to this District.
See, e.g., Romanowski v. RNI, LLC, No. C 06-6575 PJH, 2008 WL 361125, at *4 (N.D. Cal. Feb.
11, 2008); Varela v. San Francisco City & Cnty., No. C 06-01841 WHA, 2007 WL 205069, at
*2 (N.C. Calif. Jan. 25, 2007); Witherow v. Crawford, No. 3:01-CV-00404-LRH (VPC), 2006

3

Defendants cannot evade the unsigned certification error by seeking refuge in the fact
that the Local Civil Rules permit the filing of “deposition excerpts” as attachments to summary
judgment memoranda. See S. D. Ohio Civ. R. 7.2(e). That same rule also requires that
“[e]vidence submitted . . . shall be limited to that necessary for decision and shall include only
essential portions of transcripts or exhibits referenced in the memorandum.” S. D. Ohio Civ. R.
7.2(e). The court reporter certification is an essential portion of a transcript necessary for
decision because it qualifies any submitted transcript pages as summary judgment evidence.
17

WL 3845145, at *5 (D. Nev. Dec. 28, 2006); Roberts v. Boeing Co., No. CV 05-6813 FMC
(SHx), 2006 WL 4704616, at *1 (C.D. Cal. Sept. 8, 2006); Gastelum v. Abbott Labs., No. CV
05-645 PHX NVW, 2006 WL 2456199, at *3 (D. Ariz. Aug. 22, 2006); AMCO Ins. Co. v.
Madera Quality Nut LLC, No. 1:04-CV-06456-SMS, 2006 WL 2091944, at *24 (E.D. Cal. July
26, 2006); Magana v. Sacramento Cnty. Main Jail, No. CIVS03-2061DFLKJMP, 2006 WL
314486, at *3 (E.D. Cal. Feb. 9, 2006).
Having resolved this additional issue as to what this Court can consider in its summary
judgment analysis, the Court finally turns to whether the viable summary judgment evidence
entitles Defendants to judgment as a matter of law. Defendants initially seek summary judgment
on the rationale that because Plaintiff was an independent contractor and not an employee, there
can be no liability under either the FLSA or Title VII. The briefing adequately sets forth the
often overlapping tests applicable to each type of claim, and given the pervasive factual issues
presented, this Court need not pad its opinion with a boilerplate recitation of that law here.
Rather, what proves dispositive of this aspect of Defendants’ motion today is not the nuances of
the law, but the conflicts in the evidence submitted to satisfy the governing law.
In support of their motion, Defendants rely on prior testimony in another case by
Plaintiff, asserted admissions by Plaintiff to his former live-in girlfriend, and testimony by other
individuals that Plaintiff was an independent contractor. Defendants also provide testimony that
Plaintiff allegedly stated to his then-girlfriend and an employee that he was going to file a sham
lawsuit, asserting that he was an employee, in order to obtain a lucrative settlement.
Plaintiff of course disagrees with Defendants’ theory of the case and the evidence upon
which they rely. He in turn has submitted the contested affidavits discussed above. What

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survives in these affidavits contradicts every key point of Defendants’ evidence that is relevant
under the applicable tests for employee versus independent contractor status. For example, there
is a factual dispute over whether Plaintiff was dependent on Defendants or in business for
himself. There are also issues as to whether he had a permanent relationship with Anchor and
whether his work for other entities was most often at Defendants’ direction. There is an issue as
to Plaintiff’s potential for profit or loss, as well as whether the workers he paid in cash were his
employees or Defendants’ employees. Additionally, whether Plaintiff or Anchor controlled the
manner in which work was performed is at issue, as is whether the business card upon which
Defendants rely is a forgery. There is an issue as to whether Plaintiff obtained Workers’
Compensation insurance and who paid for such coverage. These obvious genuine issues of
material fact preclude summary judgment based on the employee-independent contractor
distinction. In light of the foregoing, the Court also denies Defendants summary judgment on
their related declaratory judgment counterclaim.
Although the bulk of the parties’ briefing addresses the question of Plaintiff’s status,
Defendants also move for summary judgment on alternative grounds. Citing generally pre-1960
cases, they argue that even if Plaintiff were an employee, the FLSA does not apply to the purely
intrastate construction activity involved here. Defendants have failed to present this Court with
authority clearly supporting the dubious proposition that after the 1961 and 1974 “handling
clause” amendments, the FLSA cannot apply even to construction enterprises that utilize goods
or materials that have moved in interstate commerce. See Vega v. Peninsula Household Servs.,
Inc., No. C-08-03815 JCS, 2009 WL 656291, at *4 (N.D. Cal. Mar. 12, 2009). The scarcity of
authority presented and the evidence offered to this Court on the precise nature and scope of

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Defendants’ businesses do not favor summary judgment here. See Wing Kwong Ho v. Target
Constr. of NY, Corp., No. 08-CV-4750 (KAM)(RER), 2011 WL 1131510, at *8 (E.D.N.Y. Mar.
28, 2011) (noting application of FLSA to construction companies).
Defendants next argue that even if the FLSA applies and even if Plaintiff is an employee,
he nonetheless falls under the bona fide executive exemption set forth in 29 U.S.C. § 213(a)(1).
This issue presents a closer call than much of the foregoing analysis, but still fails to provide
Defendants with a route to summary judgment. Defendants’ argument hinges in part on
application of the short test for executive employees, but they cite only to one of Plaintiff’s
complaints as evidence that he was paid more than the requite $250 per week. The pleading is
not summary judgment evidence. Equally unpersuasive is Defendants’ reliance on witnesses’
affidavits to support the contention that Plaintiff exercised necessary control over the projects
with which he was involved. Mandated to resolve all inferences in Plaintiff’s favor in this
summary judgment context, the Court must recognize that there are, as noted above, numerous
factual disputes as to the extent and scope of Plaintiff’s duties, including the extent of the
physical labor required of him.
The final argument Defendants present in regard to the FLSA claim is that Plaintiff’s
alleged “on call” time and purported overtime hours worked are not compensable under the
FLSA. They posit that Plaintiff had no on call restrictions placed on him and that he failed to
inform Defendants of any overtime he worked. As he has done with many of Defendants’
arguments, Plaintiff has failed to respond to these arguments. It is neither this Court’s obligation
nor inclination to scour the record in search of evidence supporting an on call restriction on
Plaintiff that would counter Defendants’ arguments. Consequently, Defendants are entitled to

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summary judgment on the on call component of Plaintiff’s claim in light of his failure to direct
this Court to any evidence supporting that issue. In contrast, the time sheets submitted with
Plaintiff’s November 1, 2010 affidavit introduce an issue of fact for the overtime component of
his claim.
Defendants next assert that because Plaintiff has failed to produce any evidence of
discrimination or disparate treatment related to his being of Hispanic origin, they are entitled to
summary judgment on these Title VII claims. Under Title VII, it is an unlawful employment
practice for an employer “to discriminate against any [employee] with respect to the
[employee’s] compensation, terms, conditions, or privileges of employment, because of such
[employee’s] race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1). It is well
settled that
in order to establish a prima facie case of discrimination by the defendant, “the
plaintiff must show (1) that he is a member of a protected group, (2) that he was
subject to an adverse employment decision, (3) that he was qualified for the position,
and (4) that he was replaced by a person outside of the protected class . . . . [t]he
fourth element may also be satisfied by showing that similarly situated non-protected
employees were treated more favorably.”
Clayton v. Meijer, Inc., 281 F.3d 605, 610 (6th Cir. 2002) (quoting Talley v. Bravo Pitino Rest.,
Ltd., 61 F.3d 1241, 1246 (6th Cir. 1995) (alteration in original)). Proceeding under this standard,
Defendants argue that even if Plaintiff were an employee, he cannot not meet the requirement of
demonstrating that similarly situated employees outside his protected class were treated more
favorably and that the companies’ proffered rationale underlying the decision to stop using him
on projects was discriminatory under the honest belief rule.
Plaintiff has failed to respond to these discrimination and disparate treatment arguments.
Because Defendants’ briefing sets forth a persuasive rationale for summary judgment that
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Plaintiff has failed to rebut, the Court concludes that Defendants are also entitled to judgment as
a matter of law on this aspect of the litigation. The genuine dispute of material fact as to
Plaintiff’s possible role as an uncompensated translator for Defendants precludes summary
judgment on this ground.
The same rationale and result applicable to Plaintiff’s Title VII claims apply to his Ohio
Revised Code Chapter 4112 claims as well. This is because Ohio courts apply Title VII case law
when analyzing claims under Ohio Revised Code § 4112. Kocak v. Cmty. Health Partners of
Ohio, Inc., 400 F.3d 466, 471–72 (6th Cir. 2005); Koval v. Dow Jones & Co., 86 F. App’x 61, 65
(6th Cir. 2004); Nelson v. Gen. Elec. Co., 2 F. App’x 425, 430 n.2 (6th Cir. 2001); Mitchell v.
Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992).
V. Conclusion
For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART the
motion to strike (ECF No. 70), DENIES AS MOOT the motion for leave to file a brief as
amicus curiae (ECF No. 56), and GRANTS IN PART and DENIES IN PART the motion for
summary judgment (ECF No. 51).
IT IS SO ORDERED.
/s/ Gregory L. Frost
GREGORY L. FROST
UNITED STATES DISTRICT JUDGE

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