Kirk v. Invesco, Ltd

Filing 69

ORDER ADOPTING 60 Memorandum and Recommendations DENYING 38 MOTION for Partial Summary Judgment , GRANTING 43 MOTION for Summary Judgment . (Signed by Judge Gray H Miller) Parties notified.(rkonieczny, 4)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
CHERYL KIRK,
Plaintiff,
v.
INVESCO, LTD.,
Defendant.

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CIVIL ACTION H-15-833

ORDER ADOPTING MEMORANDUM & RECOMMENDATION
Pending before the court is the Magistrate Judge’s Memorandum and Recommendation
(the “M&R”) (Dkt. 60), recommending that plaintiff Cheryl Kirk’s (“Kirk”) motion for partial
summary judgment (Dkt. 38) be denied and that defendant Invesco, Ltd.’s (“Invesco”) motion for
summary judgment (Dkt. 43) be granted. Kirk filed objections to the M&R. Dkt. 64. Having
reviewed the M&R, the objections to the M&R, the related briefing, the record evidence, and the
applicable law, the court OVERRULES Kirk’s objections and ADOPTS the M&R.
I. BACKGROUND
On March 31, 2015, Kirk filed this lawsuit against her then-employer Invesco to collect
unpaid overtime wages pursuant to the Fair Labor Standards Act (“FLSA”). Dkt. 1. Kirk began
working for Invesco on a contract basis in September of 2010 and was later hired as an employee
on April 15, 2011. Id. at 2. During her employment, Kirk held the position of “IT Training
Manager.” Id. at 3. Invesco classified Kirk as exempt from the FLSA’s overtime pay requirements
and paid her a fixed weekly salary. Id. at 5. As a result, Kirk received no additional compensation
for the hours she worked in excess of forty in a given week. Id. Kirk alleges that she worked
approximately sixty hours per week. Id. at 4. Kirk contends that Invesco willfully mis-classified her

as an exempt employee in violation of the FLSA and therefore is obligated to compensate her for the
overtime hours she worked in the three years prior to filing this lawsuit. Id. at 5–6.
On October 28, 2015, the court referred this case to the Magistrate Judge for full pretrial
management. Dkt. 21. On December 28, 2015, Kirk filed a motion for partial summary judgment.
Dkt. 38. On January 21, 2016, Invesco also filed a motion for summary judgment. Dkt. 43.
On May 4, 2016, the Magistrate Judge issued the M&R regarding the parties’ motions for
summary judgment. Dkt. 60. Although the parties’ motions raised several issues, the M&R
addressed a single point: whether Kirk had produced sufficient evidence to establish that she worked
more than forty hours per week. Id. at 4–5. The Magistrate Judge held that Kirk failed to produce
sufficient, competent evidence to raise a fact issue regarding whether she ever worked more than
forty hours in any week of her employment. Id. at 4–5, 19. The Magistrate Judge therefore
recommended granting Invesco’s motion for summary judgment. Id. at 19. Because the Magistrate
Judge found that Kirk could not prove that she worked overtime hours, the Magistrate Judge did not
decide whether Kirk was properly classified as an exempt employee under the FLSA. Id. at 4–5.
On May 13, 2016, Kirk filed objections to the M&R. Dkt. 64. On May 26, 2016, Invesco
responded. Dkt. 67. On May 31, 2016, Kirk filed a reply in support of her objections. Dkt. 68.
II. LEGAL STANDARDS
A.

Motion for Summary Judgment
A court shall grant summary judgment when a “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(c). “[A] fact is genuinely in dispute only if a reasonable jury could return a verdict for
the non-moving party.” Fordoche, Inc. v. Texaco, Inc., 463 F.3d 388, 392 (5th Cir. 2006). The
moving party bears the initial burden of demonstrating the absence of a genuine issue of material
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fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548 (1986). If the party meets its
burden, the burden shifts to the non-moving party to set forth specific facts showing a genuine issue
for trial. Fed. R. Civ. P. 56(e). The court must view the evidence in the light most favorable to the
non-movant and draw all justifiable inferences in favor of the non-movant. Envtl. Conservation Org.
v. City of Dall., Tex., 529 F.3d 519, 524 (5th Cir. 2008).
B.

Review of a Magistrate Judge’s Recommendation
For dispositive matters, the court “determine[s] de novo any part of the magistrate judge’s

disposition that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). “The district judge may
accept, reject, or modify the recommended disposition; receive further evidence; or return the matter
to the magistrate judge with instructions.” Id. “When no timely objection is filed, the court need
only satisfy itself that there is no clear error on the face of the record in order to accept the
recommendation.” Fed. R. Civ. P. 72(b), Advisory Comm. Note (1983). For nondispositive matters,
the court may set aside the magistrate’s order only to the extent that it is “clearly erroneous or
contrary to law.” Fed. R. Civ. P. 72(a).
III. ANALYSIS
Kirk has filed objections regarding (a) certain discovery rulings made by the Magistrate Judge
and (b) the Magistrate Judge’s substantive holding that Kirk presented insufficient evidence that she
worked overtime hours. Dkt. 64. The court will address each set of objections in turn.
A.

Discovery Issues
1.

Log In Records

On December 9, 2015, Kirk filed a motion to compel, seeking records regarding when she
logged into Invesco’s network or computers. Dkt. 36. On January 7, 2016, the Magistrate Judge
granted Kirk’s motion but required the documents to be produced at Kirk’s expense. Dkt. 41. On
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February 2, 2016, Kirk filed a motion for reconsideration of the Magistrate Judge’s order after
Invesco indicated that it would cost over $1.13 million to produce these documents. Dkt. 45. Kirk
asked that Invesco be required to produce these documents at its own expense. Id. On February 11,
2016, the Magistrate Judge heard oral argument on the motion for reconsideration. Dkt. 52. At the
hearing, counsel for Invesco emphasized that, while Invesco kept records of when a person logged
into their system, it kept no records of when a person logged out. Dkt. 65 at 8–9. The Magistrate
Judge noted that the relevance of documents showing when Kirk logged into Invesco’s system was
significantly diluted by the fact that there were no records of when she logged out. Id. at 9.
Accordingly, the Magistrate Judge found that the relevance of the log in documents was not
proportional to the $1.13 million cost of production and denied Kirk’s motion for reconsideration.
Id. at 12.
In Kirk’s objections, Kirk re-asserts the arguments she made in front of the Magistrate Judge
and requests that the court order Invesco to produce all of Kirk’s log in records. Dkt. 64 at 3.
Federal Rule of Civil Procedure 72 requires that a party object to a magistrate judge’s order on a
nondispositive matter within 14 days. Fed. R. Civ. P. 72(a). A party “may not assign as error a
defect in the order not timely objected to.” Id. Kirk’s objections were filed over three months after
the Magistrate Judge denied Kirk’s motion for reconsideration. Therefore, Kirk failed to timely
object to the Magistrate Judge’s holding. Further, the court agrees with the Magistrate Judge’s
determination that information regarding when Kirk logged into Invesco’s system, without any
corresponding information regarding when Kirk logged out of the system, is not sufficiently
probative to justify the $1.13 million cost of production. Kirk’s objection is OVERRULED.

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2.

Computer Image

At the February 11, 2016 hearing on Kirk’s motion for reconsideration, the following
exchange occurred:
[KIRK]: Your Honor, can I ask about - - I still don’t know what
happens to her work computer. Can I be permitted to get her work
computer that she utilized at work and - - because I think that’s
separate than a backup tape.
[THE MAGISTRATE JUDGE]: I would agree, but a lot of times
companies - - you know, someone’s out the door, they wipe the
computer. Do you still have her computer in an unwiped state?
[INVESCO]: I believe they have an image of it.
[THE MAGISTRATE JUDGE]: Okay. Then give it to [Kirk].
Dkt. 65 at 12. On March 30, 2016, Invesco produced an image of Kirk’s computer. Dkt. 64 at 3.
Kirk objects that the image Invesco produced violates the Magistrate Judge’s order because it was
not a “true image” of Kirk’s computer. Id. The image apparently contained a “series of folders” but
was missing “primary default user data storage folders” and “the majority of system/registry files
commonly examined during device forensic analyses.” Id. at 4.
The exchange at the February 11, 2016 hearing merely indicates that Invesco had an image
of Kirk’s computer and would be required to produce it. There was no discussion regarding what
information that image contained. Further, the Magistrate Judge made no ruling regarding how the
image should be produced or what information she expected would appear on the image. Therefore,
the court has no basis to conclude that the image produced by Invesco failed to comply with the
Magistrate Judge’s order. Further, the court notes that Kirk did not attempt to inform the Magistrate
Judge that her discovery order had allegedly been violated. Rather, Kirk raised the issue for the first
time as an objection to the M&R. Kirk’s objection is OVERRULED.
B.

Evidence of Overtime Hours
Kirk objects to the Magistrate Judge’s conclusion that Kirk has produced insufficient
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evidence at the summary judgment stage to establish that she ever worked more than forty hours in
a week. Kirk primarily contends that (1) the M&R is inconsistent with Supreme Court precedent set
forth in Anderson v. Mt. Clemens Pottery Co.; (2) the M&R improperly finds that Kirk’s testimony
is insufficient evidence to support her allegations that she worked overtime hours; and (3) even if
Kirk’s testimony is insufficient on its own, Kirk’s testimony is effectively substantiated by her
emails, her GPS phone records, and her mother’s testimony. Dkt. 64 at 2.
1.

Anderson v. Mt Clements Pottery Co.

Kirk argues that the Magistrate Judge misapplied Anderson v. Mt. Clements Pottery Co. by
improperly placing the burden on Kirk to prove the precise extent of her uncompensated work.
Dkt. 64 at 5–7. In Anderson, the Court explained the legal framework applicable to claims for
unpaid overtime compensation under the FLSA:
An employee who brings suit under § 16(b) of the Act for unpaid
minimum wages or unpaid overtime compensation, together with
liquidated damages, has the burden of proving that he performed
work for which he was not properly compensated. The remedial
nature of this statute and the great public policy which it embodies,
however, militate against making that burden an impossible hurdle
for the employee. Due regard must be given to the fact that it is the
employer who has the duty under § 11(c) of the Act to keep proper
records of wages, hours and other conditions and practices of
employment and who is in position to know and to produce the most
probative facts concerning the nature and amount of work performed.
Employees seldom keep such records themselves; even if they do, the
records may be and frequently are untrustworthy. It is in this setting
that a proper and fair standard must be erected for the employee to
meet in carrying out his burden of proof.
When the employer has kept proper and accurate records the
employee may easily discharge his burden by securing the production
of those records. But where the employer’s records are inaccurate or
inadequate and the employee cannot offer convincing substitutes a
more difficult problem arises. The solution, however, is not to
penalize the employee by denying him any recovery on the ground
that he is unable to prove the precise extent of uncompensated work.
Such a result would place a premium on an employer’s failure to keep
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proper records in conformity with his statutory duty; it would allow
the employer to keep the benefits of an employee’s labors without
paying due compensation as contemplated by the Fair Labor
Standards Act. In such a situation we hold that an employee has
carried out 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 amount and extent of that work as a
matter of just and reasonable inference. The burden then shifts to the
employer to come forward with evidence of the precise amount of
work performed or with evidence to negative the reasonableness of
the inference to be drawn from the employee’s evidence. If the
employer fails to produce such evidence, the court may then award
damages to the employee, even though the result be only
approximate.
328 U.S. 680, 686–88, 66 S. Ct. 1187 (1946), superseded by statute on other grounds, Portal-toPortal Act of 1947, Pub. L. No. 80-49, 61 Stat. 84, as recognized in Integrity Staffing Sols., Inc. v.
Busk, 135 S. Ct. 513 (2014). In following the Anderson framework, the court must first determine
whether Invesco kept “proper and accurate records” of Kirk’s hours. The Magistrate Judge found
that Invesco’s records were inadequate and inaccurate. Dkt. 60 at 10–12. Kirk testified that her
supervisor had told her that the time she recorded in Invesco’s system did not matter because she was
not being paid by the hour. Dkt. 48, Ex. 20 at 210. Therefore, Kirk testified that she “just randomly”
put her hours into the system. Id. Kirk explained that the system was “not a true, you know,
recording of anybody’s hours . . . this is simply just to track how much is - - hours are spent on
projects. It’s not meant to pay anybody.” Id. at 211. Further, she stated that, by inputting her time
into the system, she was just “filling in numbers to make sure that management doesn’t get on a
report. Doesn’t have anything to do with how many hours I’m actually working.” Id. at 212. Kirk’s
testimony leaves no question that the Magistrate Judge correctly determined that Invesco’s records
were inaccurate or inadequate. Further, the court notes that the Magistrate Judge’s conclusion on
this issue is consistent with Kirk’s litigation position. See Dkt. 48 at 10 (Kirk’s brief) (arguing that
Kirk’s testimony provided evidence that Invesco’s records were inaccurate or inadequate).
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Under Anderson, where the employer’s records are inaccurate or inadequate, the employee
then has the burden to “ produce[ ] sufficient evidence to show the amount and extent of [her] work
as a matter of just and reasonable inference.” 328 U.S. at 687. Kirk is correct that this standard
explicitly does not require her to prove “the precise extent of uncompensated work.” Id. However,
at no point did the Magistrate Judge require Kirk to prove the precise extent of her uncompensated
work. Rather, consistent with Anderson, the Magistrate Judge explicitly found that Kirk had failed
to meet her burden to produce sufficient evidence to raise a “just and reasonable inference” that she
worked more than forty hours during any week of her employment. Dkt. 60 at 19. Because the
Magistrate Judge found that Kirk failed to meet her burden, the Magistrate Judge’s Anderson
analysis was complete, and the burden did not shift to Invesco. See Ihegword v. Harris Cty. Hosp.
Dist., 555 F. App’x 372, 374 (5th Cir. 2014) (explaining that the employee bears the initial burden
to produce sufficient evidence that she has performed work for which she was not compensated).
The court finds nothing in the M&R that deviates from the standard set forth in Anderson.
Accordingly, Kirk’s objection is OVERRULED. The court will address the sufficiency of Kirk’s
overtime evidence separately below.
2.

The Sufficiency of Kirk’s Testimony

Kirk argues that the Magistrate Judge incorrectly found that Kirk’s testimony was insufficient
to establish that she worked overtime hours. Dkt. 64 at 7–9. Kirk contends that, in an FLSA
misclassification case, an employee’s mere testimony of overtime hours worked is sufficient
evidence to defeat an employer’s motion for summary judgment. Id. at 9. In support of this position,
Kirk relies primarily on two, non-binding district court cases. See Clark v. Centene Co. of Tex.,
L.P., 104 F. Supp. 3d 813 (W.D. Tex. 2015); Johnson v. Big Lots Stores, Inc., 604 F. Supp. 2d 903
(E.D. La. 2009). Even assuming that these opinions stand for the proposition that an employee’s
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unsubstantiated testimony is sufficient evidence to survive summary judgment, the court finds that
the weight of authority does not support this position.
In Ihegword, plaintiff sued defendant for failure to pay overtime wages in violation of the
FLSA. 555 F. App’x at 373.

Plaintiff “estimate[d] from memory alone that she worked

approximately twelve hours of uncompensated overtime a week.” Id. at 374. The district court
found that there was a “complete lack of evidence, other than [plaintiff’s] unsubstantiated assertions
speculated from memory, to prove that she actually worked overtime for which she was not
compensated.” Id. at 375. Therefore, the district court granted summary judgment to defendant.
Id. On appeal, the Fifth Circuit affirmed and explicitly agreed with the district court’s holding that
“an unsubstantiated and speculative estimate of uncompensated overtime does not constitute
evidence sufficient to show the amount and extent of that work as a matter of just and reasonable
inference.” Id. Other courts have similarly held that a plaintiff’s unsubstantiated assertion that she
worked overtime hours is insufficient to satisfy her evidentiary burden at the summary judgment
stage. See Dixon v. First Choice Messengers, Inc., No. 4:14-CV-02895, 2016 WL 774680, at *3
(S.D. Tex. Feb. 29, 2016) (Hoyt, J.) (holding that plaintiff’s “own unsubstantiated assertions that she
worked an estimated fifteen hours of unpaid overtime per week” were insufficient to raise a genuine
issue of material fact for trial); Oti v. Green Oaks SCC, LLC, No. 4:13-CV-816-A, 2015 WL 329216,
at *3 (N.D. Tex. Jan. 23, 2015) (granting summary judgment to defendant on plaintiff’s FLSA claim
where plaintiff relied solely on her “admitted guess as to how many overtime hours she worked”).
Accordingly, the court finds that Kirk’s testimony that she worked sixty hours per week, unless
properly substantiated by other evidence, is insufficient to establish that she performed overtime
work for which she was not compensated. Kirk’s objection is OVERRULED.

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3.

Kirk’s Additional Evidence

Kirk objects that, even if her testimony alone is insufficient to avoid summary judgment, she
presented other evidence that properly substantiates her testimony. Dkt. 64 at 10–11. Specifically,
Kirk submitted (1) a list of the dates and times when she sent emails, (2) GPS phone records,
indicating her location during particular days, and (3) her mother’s deposition testimony. The
Magistrate Judge found that this evidence was insufficient to substantiate Kirk’s testimony. Dkt. 60
at 14–17. The court agrees.
Email Records. Kirk’s email records show that she was working at certain particular
moments. See Dkt. 48, Ex. 25. However, the fact that Kirk sent emails at particular times does not
raise a just and reasonable inference that Kirk worked more than forty hours in any given week. In
fact, in reviewing Kirk’s email records, the Magistrate Judge found that the records could support
no more than seventeen hours of work in any particular week.
GPS Phone Records. Kirk submitted GPS phone records, showing her location throughout
the day, on four days: December 9, 2013; April 21, 2014; September 11, 2014; March 10, 2015.
Dkt. 48, Ex. 26. These records suggest that Kirk was at work for particularly long periods on these
four days. However, as the Magistrate Judge pointed out, none of these four days is in the same
week. Therefore, the records do not support an inference regarding whether Kirk worked over forty
hours in those weeks.
Kirk’s Mother’s Deposition. Kirk’s mother testified that she periodically saw Kirk working
“on and off” during evening hours and witnessed Kirk making phone calls in the early morning.
Dkt. 48, Ex. 27 at 19–20, 39. She further testified that Kirk had not told her how many hours per
week she worked on average. Id. at 21. Kirk’s mother could recall only “four or five times” where
she saw Invesco work on Kirk’s computer. Dkt. 55, Ex. 3 at 38. The court agrees with the
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Magistrate Judge that, although this testimony indicates that Kirk occasionally worked from home
beyond normal business hours, it is not sufficiently specific to allow the court to infer that Kirk
worked over forty hours in any given week.
The court finds that Kirk’s additional evidence is insufficient to substantiate her testimony
that she worked overtime hours. Kirk’s objection is OVERRULED.
On a de novo review of the record, the court finds that Kirk has failed to produce sufficient
evidence to raise a just and reasonable inference that she performed work for which she was not
properly compensated. The court finds that Kirk’s objections to the M&R are without merit.
Accordingly, Kirk’s objections are OVERRULED and the M&R is ADOPTED IN FULL.
IV. CONCLUSION
Kirk’s objections (Dkt. 64) are OVERRULED, and the M&R (Dkt. 60) is ADOPTED IN
FULL. Kirk’s motion for partial summary judgment (Dkt. 38) is DENIED. Invesco’s motion for
summary judgment (Dkt. 43) is GRANTED. Kirk’s claims are DISMISSED WITH PREJUDICE.
A final judgment will issue consistent with this opinion.
Signed at Houston, Texas on August 18, 2016.

___________________________________
Gray H. Miller
United States District Judge

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