PEREZ v. CENTRAL LAUNDRY INC. et al

Filing 85

OPINION SIGNED BY HONORABLE WENDY BEETLESTONE ON 8/10/17. 8/11/17 ENTERED AND COPIES E-MAILED. (va, )

– FOR PUBLICATION –

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
R. ALEXANDER ACOSTA, SECRETARY
OF LABOR, UNITED STATES
DEPARTMENT OF LABOR,
Plaintiff,

CIVIL ACTION

v.

NO. 15-1502

CENTRAL LAUNDRY, INC., GEORGE
RENGEPES and JIMMY RENGEPES,
Defendants.

OPINION
Presently before the Court is Plaintiff’s Motion for Reconsideration (ECF No. 82-1) of
the order granting Defendants’ Motion in Limine (ECF No. 74) to preclude the lay testimony of
Wage and Hour Investigator (“WHI”) Jennifer Azeles. For the following reasons, Plaintiff’s
motion will be granted.
I.

BACKGROUND
This case concerns violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §

201, et seq. On March 24, 2015, Plaintiff filed a complaint against Defendants, alleging
extensive FLSA violations. Defendants have admitted liability, conceding to a history of paying
certain employees substandard wages and failing to provide appropriate compensation for
overtime and breaks. A trial on the issue of damages is ongoing.
The presentation of damages has been complicated by Defendants’ failure to maintain
accurate employee records, in violation of Section 211 of the FLSA. 29 U.S.C. § 211(c). In the
absence of proper documentation, Plaintiff intends to rely upon lay witness WHI Azeles, an
experienced wage and hour investigator, to prepare and testify to a series of schedules and

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exhibits that reconstruct how she calculated the amount of back wages and liquidated damages
that the government contends is owed by Defendants, based upon evidence offered by a
representative group of injured employees. Plaintiff did not identify WHI Azeles as an expert
witness, and on July 19, 2017, Defendant filed a Motion in Limine, arguing that WHI Azeles’s
calculations lie outside her personal knowledge, and as such are inadmissible as lay opinion
testimony under Federal Rule of Evidence 602. ECF No. 74. The Court denied Defendants’ pretrial motion without prejudice.
In response to the renewal of Defendants’ motion at trial, Plaintiff argued that the
introduction of WHI Azeles’s calculations would be proper given the absence of adequate
employee records. Plaintiff maintained that in cases where an employer has violated the FLSA
by failing to keep accurate records, an employee need only submit “sufficient evidence from
which violations of the [FLSA] and the amount of an award may be reasonably inferred.” See
Martin v. Selker Bros., 949 F.2d 1286, 1297 (3d Cir. 1991). This argument, while procedurally
correct, failed to address the underlying evidentiary issue, namely, whether WHI Azeles’s lay
opinion testimony was in fact based on the sort of “scientific, technical, or . . . specialized
knowledge within the scope of Rule 702” prohibited by Rule 701(c) of the Federal Rules of
Evidence. The Court found that WHI Azeles’s calculations rested upon certain inferences,
including the number of employees not paid the proper rate of pay, the number of hours that each
employee worked each week, and the length of their employment. Because these inferences
appeared to be the product of WHI Azeles’s specialized judgment as a wage and hour
investigator, the Court granted Defendants’ motion to exclude WHI Azeles’s testimony. Plaintiff
would, however, be granted leave to seek to qualify WHI Azeles as an expert witness, and
Defendants would be provided with an opportunity to depose her. Plaintiff now asks that the

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Court reconsider this order, and allow WHI Azeles to testify as a lay witness as to how she
calculated back wages and liquidated damages.
II.

LEGAL STANDARD
“The purpose of a motion for reconsideration is to correct manifest errors of law or fact

or to present newly discovered evidence.” Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir.
1985). A motion for reconsideration will be granted if the movant shows “(1) an intervening
change in the controlling law; (2) the availability of new evidence that was not available when
the court granted the [motion]; or (3) the need to correct a clear error of law or fact or to prevent
manifest injustice.” Max’s Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677
(3d Cir. 1999) (citing North River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d
Cir. 1995)).
III.

ANALYSIS
The standards controlling lay witness opinion testimony are laid out in Rule 701 of the

Federal Rules of Evidence:1
If the witness is not testifying as an expert, the witness’ testimony in the form of opinions
or inferences is limited to those opinions or inferences which are (a) rationally based on
the perception of the witness, and (b) helpful to a clear understanding of the witness’
testimony or the determination of a fact in issue, and (c) not based on scientific, technical,
or other specialized knowledge within the scope of Rule 702.
Fed. R. Evid. 701.
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Defendants have objected to WHI Azeles’s proffered testimony pursuant to Federal Rule of Evidence 602, which
reads: “A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the
witness has personal knowledge of the matter.” Fed. R. Evid. 602. The Third Circuit has found a witness’s personal
examination of records introduced at trial sufficient to satisfy the personal knowledge requirement of Rule 602. See
also United States v. Bansal, 663 F.3d 634, 667 (3d Cir. 2001) (finding an IRS Special Agent qualified to testify
under Rule 602 when his testimony was based on a “personal examination of the . . . records actually introduced at
trial”).
In this case, WHI Azeles has developed personal knowledge of Defendants’ employment practices through
interviews with Defendants’ employees as well as personal examination of Defendants’ extant records. The
personal knowledge requirement of Rule 602 is thereby satisfied, leaving the Court to consider whether WHI
Azeles’s proffered testimony will be admissible under Rule 701.

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Rule 701 “is rooted in the modern trend away from fine distinctions between fact and
opinion.” Asplundh Mfg. Div. v. Benton Harbor Eng’g, 57 F.3d 1190, 1195 (3d Cir. 1995). But
while the rule does attempt to “liberal[ize] . . . the admissibility of opinion evidence,” id., lay
opinion testimony will be inadmissible unless the witness has a “‘reasonable basis grounded in
experience or specialized knowledge for arriving at the opinion that he or she expresses.’” See
Eichorn v. AT&T Corp., 484 F.3d 644, 649 (3d Cir. 2007) (quoting Asplundh, 57 F.3d at 1201).
Accordingly, where an opinion is the reasonable product of a witness’s particularized
knowledge, it may be admissible under 701(a). See Donlin v. Philips Lighting North America
Corp., 581 F.3d 73, 82-83 (3d Cir. 2009). Such knowledge, gained by virtue of personal
experience, will support lay opinion testimony, since such testimony is “based upon a
layperson’s personal knowledge,” rather than her technical expertise. See Notes to 2000
Amendments. Particularized knowledge may be achieved through either personal experience or
specialized training, and, where such experience or training is lacking, the witness’s opinion will
be precluded. See Donlin, 581 F.3d at 83. The Donlin court, for instance, found a lay witness’s
testimony as to speculative front pay damages inadmissible, as the witness had no job-related
experience or training in finance upon which to base her calculations. Id.; but see United States
v. Muhammad, 512 Fed. App’x. 154, 161 (3d Cir. 2013) (allowing lay opinion testimony
concerning surveillance videotape showing footage of a robbery when witness had reviewed the
videotape “for the purpose of reporting details of the robbery,” and was familiar with the bank’s
premises); United States v. Thompson, 393 Fed. App’x. 852, 858 (3d Cir. 2010) (allowing lay
opinion testimony as to GPS technology from a witness who was “trained in, experienced in, and
had verified the functioning of GPS devices”); Teen-Ed, Inc. v. Kimball Int’l, Inc., 620 F.2d 399,

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403 (3d Cir. 1980) (allowing an accountant to give lay opinion testimony as to a business’s lost
profits based on the accountant’s review of the business records).
The witness’s particularized knowledge must, however, “provide a truly rational basis for
his or her opinion,” a basis that does not stray into the realm of expert testimony. See Asplundh,
57 F.3d at 1201. Subsection (c) was added to Rule 701 in 2000 to help courts police this
boundary between lay and expert testimony, with the aim of “eliminat[ing] the risk that the
reliability requirements set forth in Rule 702 will be evaded through the simple expedient of
proffering an expert in lay witness clothing.” See Notes to 2000 Amendments; see also Hirst v.
Inverness Hotel Corp., 544 F.3d 221, 227 (3d Cir. 2008) (“a party simply may not use Rule 701
as an end-run around the reliability requirements of Rule 702”). While expert testimony “results
from a process of reasoning which can be mastered only by specialists in the field,” 701(c)
demands that lay testimony be grounded on “process[es] of reasoning familiar in everyday life.”
Notes to 2000 Amendments (quotations and citations omitted); see also United States v. Garcia,
413 F.3d 201, 215 (2d Cir. 2005) (“[I]n considering the third prerequisite for lay opinion
testimony, a court must focus on the ‘reasoning process’ by which a witness reached his
proffered opinion.”).
Thus even testimony otherwise admissible under 701(a) may be barred by 701(c). See
Asplundh, 57 F.3d at 1199. If the “rational basis” grounding a lay opinion would prove
inaccessible to “a person of average intelligence,” it will not qualify as lay testimony. See
United States v. Kale, 445 Fed. App’x. 482, 485 (3d Cir. 2011). In Asplundh, for instance,
certain types of specialized lay testimony were found inadmissible, despite a witness’s
particularized knowledge of the subject matter. See Asplundh, 57 F.3d at 1199-1201. The court
found “technical matters such as product defect or causation” sufficiently speculative and

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complex to require that a witness be qualified as an expert under Rule 702. Id.; see also Donlin,
581 F.3d at 82 (finding “tasks such as calculating life-expectancy, assessing amortization rates . .
. or calculating earnings potential in a pension portfolio” complex enough to require expert
testimony). Such technical testimony, though perhaps based upon a witness’s particularized
knowledge of a technical or specialized subject, nevertheless too closely resembles the sort of
complex, hypothetical speculation characteristic of expert testimony. See Asplundh, 57 F.3d at
1201. A trial court, in performing its judicial gatekeeping function, must exclude such
specialized testimony unless the witness meets the expert qualification requirements of Rule 702.
Id. at 1202.
In this case, however, WHI Azeles’s proffered testimony reflects at most a “modest
departure[] from the core area of lay opinion testimony,” and, as such, for the following reasons,
is therefore admissible under Rule 701. See Asplundh, 57 F.3d at 1198. WHI Azeles developed
particularized knowledge of the facts grounding her testimony by conducting an extensive
investigation, interviewing the employees and reviewing the Defendants’ extant records. Based
upon this experience, she has prepared a series of schedules and exhibits demonstrating how she
reconstructed the amount of back wages and liquidated damages owed by Defendants to their
injured employees, and now seeks to testify to her calculations and reconstruction. Unlike the
lay witness in Donlin, who had no background in determining damages, WHI Azeles experience
as a wage and hour investigator as well as her extensive investigation of the facts of this case
satisfy the particularized knowledge required to testify as a lay witness under 701(a).
Further, WHI Azeles’s proffered testimony is reasonably derived from the data that she
personally perceived. WHI Azeles’s proffered reconstruction is neither complex nor speculative:
while her calculations necessarily rest on inferences concerning the number of hours and length

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of time worked by employees for whom no records are available, the reasoning process
grounding these inferences is accessible to the average layperson. In order to arrive at the base
amount of back pay due for each hour worked, WHI Azeles subtracted the amount Defendant
paid its employees for regular and overtime hours from the federal minimum wage. She then
multiplied these figures by the estimated number of regular and overtime hours worked by each
employee.
In determining the number of regular and overtime hours worked by each employee,
WHI Azeles relied upon interviews with the employees as well as available time card and handscanner records. Where records were incomplete, WHI Azeles determined the number of hours
worked for time card employees by first averaging the 255 time cards provided for 10
employees, then averaging the hand-scanner records, and then averaging the two figures
together, arriving at an average of 63.72 hours worked per week. ECF No. 76-3. To determine
the length of employment for employees whose records were unavailable, WHI Azeles took an
average of the length of time worked by employees with relatively complete dates of
employment. ECF No. 76-3. She then performed an average that excluded the years worked of
the three longest-employed individuals, and came to an average of three years worked. ECF No.
76-3.
Although the number of hours worked by each individual per week as well as the number
of years that each individual was employed are inferences, these inferences do not rest on the
sort of complicated tasks, like assessing amortization rates that lie outside the realm of lay
testimony. See Donlin, 581 F.3d at 82. WHI Azeles is merely performing averages based upon
her reasonable perception of the evidence available to her, and as such is not relying upon the
sort of technical or specialized judgment contemplated by 701(c). Further, these calculations are

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not offered as substantive evidence, but rather as an opinion that is “helpful . . . to determining a
fact in issue.” Fed. R. Evid. 701(b). WHI Azeles’s reconstruction shows a method of
calculating damages, a methodology which, in this bench trial, the Court is free to accept or
reject. Insofar as these calculations show what the damages would be under that methodology,
WHI Azeles’s proffered testimony offers a helpful synthesis of witness testimony and the
information she uncovered during her investigation.
Plaintiff has proffered that WHI Azeles is a seasoned wage and hour investigator, who
has spent time developing particularized knowledge of this case through her investigation.
While WHI Azeles’s testimony necessarily reflects certain inferences that lie outside her
personal experience, her reasoning process in developing and relying on these inferences is a
matter of simple arithmetic, accessible to the average layperson. There is no “aura of expertise”
surrounding this testimony. See Garcia, 413 F.3d at 215. Accordingly, given the new evidence
provided to the Court through the briefing process, the government’s motion for reconsideration
shall be granted and, provided that Plaintiff lays a proper foundation, WHI Azeles will be
permitted to testify about her back wage calculations.
An appropriate order follows.

Dated: August 10, 2017

BY THE COURT:

/s/ Wendy Beetlestone
________________________________
WENDY BEETLESTONE, J.

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