Shuman v. Simply Right, Inc.

Filing 18

MEMORANDUM OPINION OF THE COURT. Signed by Chief Judge Kevin H. Sharp on 10/28/2015. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
DAVID SHUMAN,

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Plaintiff,
v.
SIMPLY RIGHT, INC.,
Defendant.

No. 3:14-cv-01368
Judge Sharp/Bryant

MEMORANDUM
Pending before the Court is Plaintiff David Shuman’s unopposed Motion for Summary
Judgment (“Motion”), Docket No. 17. Plaintiff brings claims for violations of the Fair Labor
Standards Act of 1938, 29 U.S.C. § 201, et seq. (“FLSA”), seeking overtime back pay, liquidated
damages, and attorney’s fees. For the reasons set forth below, Plaintiff’s Motion will be granted.
I.

Factual and Procedural Background

Unless stated otherwise, the following facts are derived from Plaintiff’s Statement of
Undisputed Material Facts (Docket No. 17-1), to which Defendant has failed to respond.
Plaintiff Shuman worked for Defendant Simply Right as a commercial custodian from January 4,
2014 through March 31, 2014. Throughout his tenure at Simply Right, Plaintiff received hourly
wages of $7.25. Simply Right placed Plaintiff at the Roxy 10 movie theater in Lebanon,
Tennessee, where Plaintiff cleaned the theater overnight. Although Simply Right told Plaintiff
that he would be given a company phone to clock in and out through the time keeping system, he
did not receive any such phone. Plaintiff therefore did not record his hours. Neither have
Defendants submitted any records of Plaintiff’s hours.

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Plaintiff arrived at the theater after the staff closed it and was required to finish his
cleaning duties before the theater reopened the next morning.1 Plaintiff typically started his
work between 11:30 PM and 12:30 AM and completed his duties between 9:30 and 10:30 AM.
Thus, on any given night he worked between nine and eleven hours. Plaintiff cleaned the Roxy
10 theater seven nights a week and avers that he did not take any breaks longer than fifteen
minutes. For each two-week pay period, then, Plaintiff worked eighty (80) hours of regular work
and between forty-six (46) and seventy-four (74) hours of overtime. For each of the two-week
pay periods except for the first, Plaintiff’s pay check stubs confirm that Simply Right
compensated Plaintiff for only 15.44 hours of overtime work. (Docket No. 17-3).
Plaintiff filed this action approximately three months after he stopped working for Simply
Right. The record reveals that Simply Right initially participated in the litigation: Defendant
filed an Answer (Docket No. 12) and responded to Plaintiff’s Motion to Amend the Case
Management Plan (Docket No. 15). Simply Right has not, however, responded to the instant
Motion.
II.

Summary Judgment Standard

Under Rule 56(c), summary judgment is proper if the record, taken as a whole, shows
that “there is no genuine issue of material fact and that the moving party is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(c). The burden of establishing that there is no genuine
issue of material fact falls upon the moving party. See Celotex Corp. v. Catrett, 477 U.S. 317,
330 n.2 (1986). The Court must view the facts and all inferences are to be drawn therefrom in

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Plaintiff’s nightly cleaning duties included picking up garbage left by movie theater patrons, scraping gum from
theater seats, sweeping out theater rows, vacuuming each row and under each seat, vacuuming the hallways and
stairs, moping rows, wiping down banisters and rails, cleaning the bathrooms, including scrubbing toilets, urinals
and sinks, picking up trash and toilet paper, scrubbing bathroom walls and stalls, dusting ceilings, light fixtures and
stalls, removing trash and replacing soap, toilet paper and paper towels, as well as cleaning the lobby, removing
trash, scrubbing trash cans, sweeping floors, mopping floors, cleaning windows and doors, and cleaning and
mopping the video arcade area.

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the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986); Burchett v. Kiefer, 310 F.3d 937, 942 (6th Cir. 2002).
To establish a genuine issue as to the existence of a particular element, the non-moving party
must point to evidence in the record upon which a reasonable jury could find in its favor. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The genuine issue must also be
material; that is, it must involve facts that might affect the outcome of the suit under the
governing law. See id.
While a court may accept the plaintiff’s version of the facts when a motion for summary
judgment is unopposed by a defendant, “a district court cannot grant summary judgment in favor
of a movant simply because the adverse party has not responded.” Carver v. Bunch, 946 F.3d
451, 455 (6th Cir. 1992). Rather, “[t]he court is required, at a minimum, to examine the
movant’s motion for summary judgment to ensure that the movant has demonstrated the absence
of a genuine issue of material fact.” Id.
III.

Discussion

An employee seeking recovery of unpaid overtime compensation generally has the
burden of proving the employer violated FLSA by showing that “he performed work for which
he was not properly compensated.” Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687
(1946). See also Herman v. Palo Group Foster Home, Inc., 183 F.3d 468, 472 (6th Cir. 1999).
In cases where the employer has kept “proper and accurate records,” the employee may satisfy
his burden by securing production of those documents. See Anderson, 328 U.S. at 687. Where
the employer’s records are “inaccurate or inadequate and the employee cannot offer convincing
substitutes,” an employee may satisfy his burden “if he proves that he has in fact performed work
for which he was improperly compensated and if he produces sufficient evidence to show the

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amount and extent of that work as a matter of just and reasonable inference.” Id. (quoted and
reaffirmed in United States Dep’t of Labor v. Cole Enters., Inc., 62 F.3d 775, 779 (6th Cir.
1995)), superseded by statute on other grounds as stated in Carter v. Panama Canal Co., 463 F.2d
1289, 1293 (D.C. Cir. 1972). See also Herman, 183 F.3d at 472 (quoting Anderson, 328 U.S. at
687-88); Bueno v. Mattner, 829 F.2d 1380, 1387 (6th Cir. 1987) (citing Anderson, 328 U.S. at
686-88). In such a case, the burden would shift to the employer to produce evidence of the
precise amount of work or evidence to rebut the reasonableness of the inference drawn from the
employee’s evidence. See Anderson, 328 U.S. at 687-88; Herman, 183 F.3d at 472; Bueno, 829
F.2d at 1387. If the employer fails to produce such rebuttal evidence, the Court may award
damages to the employee. See Anderson, 328 U.S. at 687-88; Herman, 183 F.3d at 472; Bueno,
829 F.2d at 1387.
In the present case, it is unknown whether Defendant has kept “proper and accurate”
records, because Defendant has not responded to the pending Motion. “In such a circumstance,
it is logical to treat defendant’s conduct much the same as an employer who produces inaccurate
or inadequate records.” Burns v. Olin, No. 3:05-CV-172, 2006 WL 897959, at *3 (E.D. Tenn.
Apr. 6, 2006). Plaintiff will therefore have satisfied his burden of proof “if he proves that he has
in fact performed work for which he was improperly compensated and if he produces sufficient
evidence to show the amount and extent of that work as a matter of just and reasonable
inference.”

Anderson, 328 U.S. at 687.

As noted above, the burden would then fall on

Defendant to produce evidence of the precise amount of work or to rebut the reasonableness of
the inferences drawn from plaintiff’s evidence. Id. at 687-88; Herman, 183 F.3d at 472; Bueno,
829 F.2d at 1387.
Plaintiff declares that he worked overtime for which he was not properly compensated

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under § 207. (Docket No. 17-2). Plaintiff also submitted pay stubs, showing that Simply Right
paid him for the exact same number of overtime hours each pay period. The Court finds that
Plaintiff’s declaration and pay stubs constitute proof that he performed work for which he was
improperly compensated. See Anderson, 328 U.S. at 687; Herman, 183 F.3d at 472; Bueno, 829
F.2d at 1387. In response, Simply Right has produced no evidence to rebut Plaintiff. Therefore,
viewing the evidence in the light most favorable to Defendant, the Court can find no genuine
issue of disputed material fact, and plaintiff is entitled to judgment as a matter of law. See Fed.
R. Civ. P. 56(c).
IV.

Damages

Turning to the amount of Defendant’s liability, “[a]ny employer who violates the
provisions of [section 207] of this title shall be liable to the employee or employees affected in
the amount of their unpaid . . . overtime compensation . . . and in an additional equal amount as
liquidated damages.”

29 U.S.C. § 216(b).

In addition to any unpaid compensation and

liquidated damages, a court may hold an employer liable for the payment of a reasonable
attorney’s fee and litigation costs. Id.
In the present case, Plaintiff seeks compensation for 27.75 hours of overtime per week for
the relevant weeks. (Docket No. 17 at 7-8). However, he offers no evidence to explain how he
determined the number of uncompensated hours he worked per week. The Court also notes that
this estimate would put Plaintiff’s overtime hours at approximately 71 overtime hours per pay
period, which nears the upper end of the range of overtime hours Plaintiff could have worked
based on his statements about his arrival and departure times at the Roxy 10 theater. Without
more, the Court is reluctant to adopt Plaintiff’s calculations. While Plaintiff has provided
sufficient evidence that he worked hours for which he was improperly compensated, he has not

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provided adequate proof to support the requested damages award and additional proof of
damages is necessary before a determination as to the amount of Defendant’s liability can be
made.
V.

Conclusion

For the foregoing reasons, Plaintiff’s Motion for Summary Judgment (Docket No. 17)
will be granted. The Court will set a status conference to discuss the future proceedings that may
be necessary relating to Plaintiff's claim for damages.
An appropriate Order will be entered.
_______________________________
KEVIN H. SHARP
UNITED STATES DISTRICT JUDGE 

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