Mazurek v. Metalcraft of Mayville Inc

Filing 109

ORDER signed by Judge Brett H Ludwig on 12/16/21 granting 90 Motion for Summary Judgment and DISMISSING case. (cc: all counsel)(MP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
RICHARD MAZUREK, et al,
Plaintiffs,
v.

Case No. 17-cv-1439-bhl

METALCRAFT OF MAYVILLE INC,
Defendant.
______________________________________________________________________________
SUMMARY JUDGMENT ORDER
______________________________________________________________________________
This case is like a Tribble. 1 It began as a single, straightforward, FLSA action for failure
to pay overtime wages. In short order, however, it spawned into more than two dozen largely
identical cases in which individual employees brought the same claims against the same employer.
Even worse, the new cases were not designated as related and were therefore assigned to different
judges, ultimately appearing on the dockets of nearly every judge in this district. The effects of
this multiplication have been ameliorated, at least in part. Some of the cases ended on their own,
by voluntary dismissal. At the Court’s direction, the rest were reassigned to a single judge in an
effort to preserve some modicum of judicial resources. And, on June 3, 2021, the Court sua sponte
ordered the consolidation of all the cases for purposes of discovery. In hopes that exemplar rulings
might help resolve the entire batch, the Court also allowed each side to pick two cases to test on
summary judgment.
Currently pending are four motions for summary judgment—two filed by Plaintiffs and
two by Defendant. All four cases demonstrate a shared fundamental flaw. While Plaintiffs claim
that their employer, Metalcraft, improperly denied them overtime pay, they are unable to show the
amount and extent of the work they claim to have performed as a matter of “just and reasonable
inference.” Instead, Plaintiffs can muster only unreliable speculation and guesswork, which are
insufficient, as a matter of law, to prove damages. As a result, all four motions will be resolved in
Defendant’s favor. The Court will also require counsel for Plaintiffs to file in each of the remaining
1

Star Trek: The Trouble with Tribbles (NBC television broadcast Dec. 29, 1967).

cases a statement identifying any particular facts or legal arguments that might warrant a different
result. If such differences exist, the Court will schedule further proceedings for the resolution of
those cases. If not, the Court will enter summary judgment for Defendant in those cases too.
PROCEDURAL HISTORY
In late 2017, Plaintiff Richard Mazurek filed this case, seeking to certify a collective action
of Metalcraft employees denied overtime pay under the Fair Labor Standards Act, 29 U.S.C.
§216(b). (17-1439 ECF No. 1.) In early 2018, Magistrate Judge William E. Duffin conditionally
certified a FLSA class or collective based on stipulation between the parties. (17-1439 ECF No.
16.) After discovery and the identification of a handful of putative class members, Mazurek moved
to decertify the class. (17-1439 ECF No. 55.) Judge Duffin granted this motion on April 30, 2020.
(17-1439 ECF No. 63.) Subsequently, Mazurek’s counsel filed 24 related cases on behalf of the
putative collective members who were dismissed from the original case upon decertification. On
June 3, 2021, the Court consolidated the cases for purposes of discovery and granted counsel for
each side leave to file up to two motions for summary judgment in cases of their choosing. (171439 ECF No. 88.)
On July 24, 2021, Defendant filed a motion for summary judgment in both 17-1439,
Mazurek v. Metalcraft of Mayville, Inc., and 20-0452, Lamberg v. Metalcraft of Mayville, Inc. On
August 27, 2021, Plaintiff moved for summary judgment in 20-0441, Webster v. Metalcraft of
Mayville, Inc., and 20-0447, Sias v. Metalcraft of Mayville, Inc. All four motions are now fully
briefed and ripe for decision.
FACTUAL BACKGROUND 2
Metalcraft is a company that employs hourly workers to engage in metal fabrication,
welding, painting, and assembly line work. (17-1439 ECF No. 96 at 1.) For a portion of the period
between 2008 and 2019, Richard Mazurek, Casey Lamberg, Gordon Webster, and William Sias
(Plaintiffs) each worked at a Wisconsin Metalcraft plant. (17-1439 ECF No. 96 at 6; 20-0452 ECF
No. 41 at 6; 20-0441 ECF No. 44 at 3; and 20-0447 ECF No. 47 at 1.)
During Mazurek’s, Lamberg’s, and Webster’s employment, Metalcraft used a timekeeping
system called SEE-IT. (17-1439 ECF No. 96 at 3; 20-0452 ECF No. 41 at 3; 20-0441 ECF No.

These facts are taken from the parties’ proposed statements of facts. (17-1439 ECF Nos. 96 & 97; 20-0452 ECF
Nos. 41 & 42; 20-0441 ECF Nos. 40 & 44; and 20-0447 ECF Nos. 43 & 47.) Disputed facts are viewed in the light
most favorable to the nonmoving party.

2

40 at 5.) During Sias’ tenure, Metalcraft used both SEE-IT and another system called Kronos.
(20-0447 ECF No. 43 at 5.) SEE-IT collected employees’ work time via a “Clock-In” and “ClockOut” function and transmitted the work time for each employee to payroll. (17-1439 ECF No. 96
at 3.) Kronos functioned similarly. (See 20-0447 ECF No. 43 at 5-8.)
At all relevant times, Metalcraft had a longstanding policy permitting employees to punch
in up to 15 minutes before their scheduled start times and punch out up to 15 minutes after their
scheduled end times, referred to as the “Grace Period.” (17-1439 ECF No. 96 at 3.) If an employee
punched in during this “Grace Period” but did not engage in work, Metalcraft adjusted the
employee’s “Clock-In” time to their scheduled start time. (Id. at 4.) Plaintiffs allege that they
performed compensable work during the “Grace Period,” but Metalcraft adjusted their “Clock-In”
times to the scheduled start time anyway, so they received no corresponding overtime pay. (171439 ECF No. 1 at 4-6; 20-0452 ECF No. 1 at 3-6; 20-0441 ECF No. 1 at 3-6; and 20-0447 ECF
No. 1 at 3-6.)
Richard Mazurek worked as a CNC Machinist for Metalcraft at its West Bend plant from
November 24, 2008 to April 30, 2017. (17-1439 ECF No. 96 at 6-7.) Between October 20, 2014
and August 30, 2017—the relevant statutory interval—he worked 132 weeks, or 599 days. (Id. at
6.) During this period, Metalcraft paid Mazurek $13,139.99 in overtime. (Id. at 7.) Mazurek
testified that he normally punched in approximately 14 minutes before his scheduled start time,
though he also testified that his actual punch-in times varied. (Id. at 9.) On a damages spreadsheet
prepared with the assistance of counsel, he claims a uniform 14 minutes of unpaid pre-shift activity
every day. (17-1439 ECF No. 99-19.) Despite this claim, he admitted in deposition that he was
not sure how many minutes he actually worked prior to any given shift. (17-1439 ECF No. 96 at
9.) Although he estimated that he did between 1 and 15 minutes of pre-shift work every day, he
admitted this was guesswork. (17-1439 ECF No. 92-1 at 69:15-71:24.) He also could not
remember an instance where he worked overtime and was not properly compensated, and he stated
that nothing could trigger his memory. (Id. at 75:11-23.) And he did not know if the pre-shift
work for which he received overtime pay was included in his damages calculations. (See id. at
62:8-20.) Additionally, he testified to using at least some of the “Grace Period” for unquestionably
noncompensable personal activities such as socializing with coworkers (Id. at 46:7-21.), going to
the bathroom (Id. at 46:22-47:16.), and collecting aluminum cans. (Id. at 51:5-52:1.)

Casey Lamberg performed welding and assembly line work for Metalcraft at its West Bend
plant from January 26, 2014 to August 10, 2016. (20-0452 ECF No. 41 at 6-7.) Between March
14, 2015 and August 10, 2016—the relevant statutory interval—he worked 73 weeks. (Id. at 6.)
During this period, Metalcraft paid Lamberg $1,889.93 in overtime.

(Id. at 6-7.)

In his

interrogatory responses, Lamberg stated that he punched in every day approximately 10 minutes
before his shift start time and arrived at his workstation and began working “within a minute or
two.” (Id. at 9.) In his deposition, Lamberg conceded that, at times, he used up to 10 minutes of
the “Grace Period” for personal activities, including spending at least 5 minutes on his cellphone
every day. (Id.) Nevertheless, on his damages spreadsheet, Lamberg claims a uniform 10 minutes
of unpaid pre-shift activity every day. (20-0452 ECF No. 43-15.) Like Mazurek, Lamberg did
not know if the pre-shift work for which he received overtime pay was included in his damages
calculations. (20-0452 ECF No. 41 at 8.) Lamberg also admitted that, because he biked to work
each day, his actual punch-in time varied based on the weather. (Id. at 9.) Additionally, he testified
that his work routine was not based on actual memory, and the routine itself could vary wildly
from day to day. (20-0452 ECF No. 36-1 at 48:25-52:17.)
Gordon Webster ran a robotic brake press for Metalcraft at its West Bend plant from
February 20, 2017 until September 7, 2017. (20-0441 ECF No. 44 at 3, 5.) During that period,
Metalcraft paid Webster $847.79 in overtime. (Id.) Webster testified that he punched in 14 to 15
minutes before his shift every day. (Id. at 4.) On his damages spreadsheet, he claims a uniform
14 minutes of unpaid pre-shift activity every day. (20-0441 ECF No. 50-1.) But Webster also
admitted to arriving later and even being tardy on some days due to road conditions and his
daughter’s needs. (20-0441 ECF No. 44 at 2-3.) As with Mazurek and Lamberg, Webster stated
that he did not know if the pre-shift work for which he received overtime pay was included in his
damages estimations. (Id. at 4.) He also testified that he did not have a memory as to what he did
each day, and he could not think of any triggering factors or events that would help him recall
work he performed for which he was not paid. (Id. at 6.) Additionally, he stated that his claim
was based on his daily routine, but he had no memory of that routine, and he acknowledged that it
could vary. (Id. at 2-3.)
William Sias worked as a robotic welder for Metalcraft at its Mayville plant from February
14, 2014 to February 26, 2019. (20-0447 ECF No. 47 at 1.) Between March 12, 2017 and February
26, 2019—the relevant statutory interval—Metalcraft paid Sias $24,576.81 in overtime. (Id. at

10.) Sias stated that his arrival time could vary because of weather or construction. (Id. at 2.)
Nevertheless, on his damages spreadsheet prepared with the assistance of counsel he claims a
uniform 14 minutes of unpaid pre-shift activity every day. (20-0447 ECF No. 53-1.) As with
Mazurek, Lamberg, and Webster, Sias stated that he did not know if the pre-shift work for which
he received overtime pay was included in his damages estimations. (20-0447 ECF No. 47 at 3.)
He testified that his alleged pre-shift routine was not based on his memory because “When I got
to work, I don’t remember the work I did on the day-to-day basis.” (Id. at 2.) Sias also testified
that nothing could trigger his memory so that he could recall instances where he did not receive
pay for overtime work. (Id. at 4.)
SUMMARY JUDGMENT STANDARD
“Summary judgment is appropriate where the admissible evidence reveals no genuine issue
of any material fact.” Sweatt v. Union Pac. R. Co., 796 F.3d 701, 707 (7th Cir. 2015) (citing Fed.
R. Civ. P. 56(c)). Material facts are those under the applicable substantive law that “might affect
the outcome of the suit.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of
“material fact is ‘genuine’ . . . if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Id. If the parties assert different views of the facts, the Court must view
the record in the light most favorable to the nonmoving party. E.E.O.C. v. Sears, Roebuck & Co.,
233 F.3d 432, 437 (7th Cir. 2000). But the nonmoving party “is only entitled to the benefit of
inferences supported by admissible evidence, not those ‘supported only by speculation or
conjecture.’” Grant v. Trustees of Indiana Univ., 870 F.3d 562, 568 (7th Cir. 2017) (quoting
Nichols v. Michigan City Plant Plan. Dep’t, 755 F.3d 594, 599 (7th Cir. 2014)).
ANALYSIS
Plaintiffs allege violations of both the Fair Labor Standards Act and Wisconsin’s Wage
Payment and Collection Laws stemming from Defendant’s failure to pay overtime. Under the
FLSA, an employee seeking unpaid overtime compensation has the burden of proving (1) that “he
performed work for which he was not properly compensated,” Anderson v. Mt. Clemens Pottery
Co., 328 U.S. 680, 686-87 (1946), superseded by statute, 29 U.S.C. §254(a); (2) the amount and
extent of that work, id. at 687-88; and (3) that the “employer [knew] or [had] reason to believe that
he [was] continuing to work.” 29 C.F.R. §785.11. The same burden applies to Wisconsin Wage
Payment and Collection Laws claims. Shivalec v. Milwaukee Mixed Metal Cycles LLC, 2018 WL
6813926, at *5 (E.D. Wis 2018). None of the plaintiffs in the four instant cases has come forward

with admissible evidence sufficient to allow a jury to find, as a matter of just and reasonable
inference, the amount and extent of the compensable pre-shift work Plaintiffs claim to have
performed. To the contrary, all four plaintiffs admit they have no concrete proof beyond their own
guesswork and speculation. Accordingly, all four summary judgment motions must be resolved
in Defendant’s favor. 3
I.

Plaintiffs Are Unable to Satisfy Even the Limited Burden of Showing the Amount and
Extent of Their Work As a Matter of “Just and Reasonable Inference.”
It is neither uncommon nor surprising for FLSA plaintiffs to be unable to prove with

precision the amount and extent of their unpaid work. Accordingly, unless the employer’s records
provide a means of proof, the law gives employees a reduced burden. As the Supreme Court
explained, “where the employer’s records are inaccurate or inadequate and the employee cannot
offer convincing substitutes” the employee can carry his FLSA 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.”
Anderson, 328 U.S. at 687. Here, Defendant’s timekeeping systems rounded to the scheduled shift
start and end times when employees punched in during the 15-minute “Grace Period.” Therefore,
the timekeeping records do not provide an accurate representation of the time employees spent
performing compensable work. Under such circumstances, the law does not punish “the employee
by denying him any recovery on the ground that he is unable to prove the precise extent of
uncompensated work.” Id. Rather, the employee is given the opportunity to prove the amount and
extent of their work as a matter of just and reasonable inference, even if their calculations lack the
precision of a computerized timekeeping system. Id. But while employees’ calculations need not
hit the bullseye, they must at least land somewhere on the proverbial dart board.
II.

Plaintiffs’ Contradictory, Speculative Guesswork Is Insufficient to Prove the Amount
and Extent of Work They Performed As a Matter of Just and Reasonable Inference.

In Webster, 20-0441, and Sias, 20-0447, Defendant did not move for summary judgment. The Court may grant
summary judgment for a nonmovant as long as the movant had notice and a reasonable time to respond. Fed. R.
Civ. P. 56(f)(1). Normally, “saying that one party is not entitled to summary judgment is not to say that its opponent
necessarily is.” Hotel 71 Mezz Lender LLC v. Nat’l Retirement Fund, 778 F.3d 593, 602 (7th Cir. 2015) (emphasis
in original). But in this case, the Court’s June 3, 2021 order in Mazurek, 17-1439, put all parties on notice of the
Court’s intention to test the viability of a slew of related cases via four motions for summary judgment. (17-1439
ECF No. 88.) Further, both parties had the opportunity to present arguments opposing summary judgment in two
nearly identical cases. Under the circumstances, the Court is confident that all parties had the opportunity to
marshal all the favorable evidence in support of their arguments. See Jones v. Union Pac. R. Co., 302 F.3d 735, 740
(7th Cir. 2002). Webster and Sias had the opportunity to submit their best evidence to support denial of summary
judgment for Defendant. The evidence was simply insufficient.
3

Employees can only recover wages for hours they can prove they actually worked. Weil v.
Metal Techs, Inc., 925 F.3d 352, 358, n.5 (7th Cir. 2019). When there is a discrepancy between
the employee’s alleged work hours and the employer’s records, the employee must tender some
evidence to substantiate his version of events. Unreported work time can be “reconstructed from
memory, inferred from the particulars of the job[] . . . , or estimated in other ways—any method
that enables the trier of fact to draw a ‘just and reasonable inference’ concerning the amount of
time the employee had worked would suffice.” Espenscheid v. DirectSat USA, LLC, 705 F.3d 770,
775 (7th Cir. 2013). This is a lenient standard. It recognizes the employee’s inherent epistemic
disadvantages, but it is not an open invitation to guess or invent working hours post hoc. Indeed,
a survey of relevant Seventh Circuit caselaw confirms that internally inconsistent testimony and
speculative guesswork will not suffice. See Bum Hoon Lee v. BK Schaumburg Inc., No. 18-CV3593, 2020 WL 3577994, at *5 (N.D. Ill. July 1, 2020) (“An employee’s own vague, inconsistent,
or speculative testimony is insufficient to establish . . . a ‘just and reasonable inference’ as to how
many overtime hours the employee worked.”).
In Brown v. Family Dollar Store of IN, LP, 534 F.3d 593 (7th Cir. 2008), the Seventh
Circuit held that hours worked could be proven through “triggering factors.” Id. at 597-98. The
plaintiff presented evidence that she opened and closed the store where she worked, that it took
her 1-2 hours to do so, and that the store was open for extended holiday hours from Thanksgiving
to Christmas. Id. These extended holiday hours sufficed as “triggering factors” that signaled the
true scope of her worktime during that period. Id. This was sufficient as an evidentiary matter for
plaintiff to proceed with her claim.
In Urnikis-Negro v. American Family Property Serv, 616 F.3d 665 (7th Cir. 2010), an
employer failed to record the plaintiff’s work hours because it believed she was a salaried
employee exempt from FLSA overtime provisions. Id. at 669. Based on the plaintiff’s testimony
that she arrived at work at about 8:15 a.m. after dropping her children at school, and, considering
the evidence of the large volume of business the defendant handled during the relevant time period,
the court determined that the plaintiff had adequately shown she averaged between 10 and 12 hours
of work a day, five days a week. Id. at 669. Notably, the defendant did not dispute that the plaintiff
worked more than 40 hours per week, nor did it argue that she spent pre-shift time performing
noncompensable activities. Id.

In Melton v. Tippecanoe Cnty., 838 F.3d 814 (7th Cir. 2016), a plaintiff blindly sought
compensation for every single day’s lunch—which he claimed to have worked through—even
though company records indicated that he had been compensated for that time on certain occasions.
Id. at 817, 820. The court determined that no reasonable person would believe the plaintiff’s story
because it was directly contradicted by undisputed time records. Id. at 820. Accordingly, the court
of appeals concluded the plaintiff had not shown the amount and extent of hours worked as a matter
of just and reasonable inference. Id. at 819-20 (“[R]elying on recollection does not mean the
plaintiff may survive summary judgment where his recollection ‘is flatly refuted’ by other
evidence in the record . . . or his story is so ‘internally inconsistent or implausible on its face’ that
‘no reasonable person would believe it. . . . At the very least, an employee relying on his own
recollection to prove a violation of FLSA must have a reasonably reliable story[.]” (quoting
Seshadri v. Kasraian, 130 F.3d 798, 802 (7th Cir. 1997))).
Similarly, in Turner v. The Saloon, Ltd., 595 F.3d 679 (7th Cir. 2010), the Seventh Circuit
held a plaintiff had not shown the amount and extent of his work as a matter of just and reasonable
inference. Id. at 690-91. The plaintiff claimed that he worked multiple Sundays from 2003 to
2004 and was instructed to alter his time records to prevent overtime accrual. Id. However, his
employer produced evidence showing the employee had only worked Sundays four times, and, on
two of those times, was paid overtime. Id. On the other two occasions, his total hours worked for
the week were so low that there would be no need to shave his Sunday worktime to keep him
below the overtime threshold. Id. Thus, “[a]lthough [the plaintiff] dispute[d] the accuracy of [the
employer’s] records, his mere assertions [were] insufficient to create a jury issue.” Id. at 691.
Finally, in Brand v. Comcast Corp., 135 F. Supp. 3d 713 (N.D. Ill. 2015), a district court
recognized that plaintiffs seeking to establish hours worked for purposes of a FLSA claim may
rely on recollection but not speculation and therefore granted summary judgment to the defendant.
Id. at 742. “The language [Plaintiffs] use about how often they ‘maybe’ or ‘probably’ worked
through lunch suggests guesswork. They point to no explanations as to how they reached their
estimates, nor do they point to any memory ‘triggering factors’ or other details providing the basis
for their recollection.” Id. “‘Bare allegations and vague undocumented estimates’ are insufficient
to survive summary judgment.” Id. (quoting Millington v. Morrow Cty. Bd. of Comm’rs, No. 2:06CV-347, 2007 WL 2908817, at *7 (S.D. Ohio 2007)).

A. Plaintiffs’ Allegations are Speculative, and Speculative Allegations Cannot Survive
Summary Judgment.
The four cases presented in the pending motions are more like the Turner-Melton-Brand
line than Brown or Urnikis-Negro. All four plaintiffs admit that their reconstructed worktime
represents guesswork. (17-1439 ECF No. 91 at 5; 20-0452 ECF No. 35 at 3; 20-0441 ECF No. 43
at 4; and 20-0447 ECF No. 46 at 5.) Mazurek acknowledged that he “couldn’t even guess” how
often he worked more than eight hours a day. (17-1439 ECF No. 92-1 at 30:7-13.) Lamberg
agreed that he could not remember what work he did before his scheduled start time. (20-0452
ECF No. 36-1 at 47:11-21.) Webster stated, “[t]here ain’t really no memory involved” in his FLSA
claim. (20-0441 ECF No. 37-2 at 109:25-110:6.) And Sias repeatedly testified that he had no
memory of what he did when he got to work. (20-0447 ECF No. 39-1 at 54:11-21, 55:2-9, 55:1824.)
Each plaintiff also ruled out the possibility of “triggering factors,” like those that helped
substantiate the plaintiff’s allegations in Brown. (17-1439 ECF No. 91 at 10; 20-0452 ECF No.
35 at 8-9; 20-0441 ECF No. 43 at 17; and 20-0447 ECF No. 46 at 17.) Mazurek said nothing could
trigger his recollection. (17-1439 ECF No. 92-1 at 75:11-23.) Lamberg agreed that there was no
event or anything else that would trigger his memory so he could recall if he worked before his
start time or after his end time and was not paid. (20-0452 ECF No. 36-1 at 34:9-15.) Webster
identified a single event that triggered his memory of working late, but he also admitted that he
was paid for the work in that instance. (20-0441 ECF No. 37-2 at 33:25-34:4, 34:9-20.) Sias stated
that nothing could trigger his memory of when he worked overtime and was not paid. (20-0447
ECF No. 39-1 at 35:10-14.)
With no access to memories and no prospect of recovering them, Plaintiffs can offer
nothing more than “bare allegations.” See Brand, 135 F. Supp. 3d at 742. To the extent that those
bare allegations establish disputes of material fact, the disputes are improperly based on
speculation.

See Hurrle v. Reconstructive Hand to Shoulder of Indiana LLC, No.

115CV00685RLYTAB, 2017 WL 264537, at *5 (S.D. Ind. Jan. 20, 2017). This is exactly what
spelled doom for the plaintiffs in Turner and Brand, and it is similarly fatal to Plaintiffs here.

B. Plaintiffs’ Allegations Are Internally Inconsistent, and Internally Inconsistent
Allegations Cannot Survive Summary Judgment.
Even if Plaintiffs claimed to possess dependable memories of their time at Metalcraft, their
contradictory narratives would belie those claims. Each claimant has provided a spreadsheet
purporting to summarize their damages. But, unlike the reliable testimony of the plaintiffs in
Brown and Urnikis-Negro, Plaintiffs’ stories are uniquely, advantageously malleable, colored by
outright contradictions, and subject to change at their convenience. As the court in Melton
recognized, this is contrary to basic rules of evidence and such internally inconsistent allegations
are insufficient to save a claim from summary judgment. See Melton, 838 F.3d at 819.
Mazurek’s damages spreadsheet uniformly seeks compensation for 14 minutes of daily
overtime work for the duration of the statutory period. (17-1439 ECF No. 99-19.) At the same
time, he testified that he cleaned up, clocked out, and went home 5 minutes before his shift’s
scheduled end time every day. (17-1439 ECF No. 99-1 at 93:6-22.) And he stated that he normally
punched in about 14 minutes early, but he also acknowledged that he sometimes arrived later, and
he sometimes used the “Grace Period” for noncompensable, personal activities. (17-1439 ECF
No. 96 at 9-10.) Additionally, Defendant’s books show that Mazurek was in fact paid overtime
for 161 of the 599 days his spreadsheet claimed went unpaid. (17-1439 ECF No. 91 at 15.) And
Mazurek does not know if his estimates account for the overtime he has already been paid. (See
17-1439 ECF No. 92-1 at 62:8-20.) Somewhere in this jumble, there are a handful of facts that
might support a FLSA action, but no reasonable person could find that Mazurek’s naked attempt
to extract and weaponize—from a morass of contradictory allegations—only those facts useful to
his cause established the amount and extent of work he performed as a matter of just and reasonable
inference. To the contrary, his inconsistent testimony requires the Court to grant Defendant’s
motion.
Lamberg’s damages spreadsheet uniformly seeks compensation for 10 minutes of daily
overtime work for the duration of the statutory period. (20-0452 ECF No. 43-15.) But his
deposition testimony directly contradicts this. (See 20-0452 ECF No. 43-2 at 57:7-9, 93:23-94:17,
83:2-7.) And his interrogatory responses contradict both the spreadsheet and the deposition. (See
ECF No. 36-7 at 2.) Were this just a set of opening allegations attached to a complaint, Lamberg’s
adjustments and deviations could be forgiven, but, at summary judgment, he must at least have a
“reasonably reliable story.” See Melton, 838 F.3d at 819. He does not.

Webster’s damages spreadsheet uniformly seeks compensation for 14 minutes of daily
overtime work for the duration of the statutory period. (20-0441 ECF No. 50-1.) He claimed he
could make such an accurate estimate because his daily routine was “automatic.” (See 20-0441
ECF No. 37-2 at 109:25-110:6.) However, he also acknowledged that he punched in around his
start time and even late on certain days. (Id. at 27:13-18, 39:21-22, 76:21-77:1, 77:6-9.) And he
did not perform uncompensated work after his scheduled end time.

(Id. at 38:15-39:6.)

Additionally, he was paid overtime for 33 of the 136 days his spreadsheet claimed went unpaid
(See id. at 66:21-68:24.), but he is uncertain if his estimate accounts for those payments. (20-0441
ECF No. 44 at 4.) Webster also admitted that he could not remember an instance where he worked
overtime and did not receive commensurate compensation. (Id. at 2.) An account this rife with
inconsistencies cannot establish a genuine dispute of material fact at summary judgment. See
Melton, 838 F.3d at 819.
Sias’ damages spreadsheet uniformly seeks compensation for 14 minutes of daily overtime
work for the duration of the statutory period. (20-0447 ECF No. 53-1.) But Sias testified that,
while Defendant used the SEE-IT timekeeping system, he punched in 15 minutes early every day,
and while Defendant used the Kronos timekeeping system, he punched in 11 minutes early every
day. (20-0447 ECF No. 43 at 9.) Furthermore, he acknowledged that not all of his pre-shift time
was spent performing compensable activities. (See 20-0447 ECF No. 47 at 4.) Plus, he was paid
overtime for 33 of the 298 days he later claimed went unpaid (Id. at 21), but like his fellow
plaintiffs, he does not know if he accounted for these payments in his damages estimates. (Id. at
3.) Again, a story this unreliable cannot survive summary judgment. See Melton, 838 F.3d at 819.
In short, none of the four plaintiffs in this case has produced evidence to support their
claims or even a coherent narrative worth crediting at summary judgment. As a result, they cannot
prevail. 4

The Court also notes that, even if any Plaintiff managed to prove the amount and extent of work they performed as
a matter of just and reasonable inference, they have not established that the work they allege to have performed was
compensable notwithstanding the Portal-to-Portal Act, 29 U.S.C. §254(a) and the de minimis exception recognized
in, e.g., Frank v. Wilson & Co., 172 F.2d 712, 715-16 (7th Cir. 1949).

4

III.

Plaintiffs May Not Rely on Punch Records to Establish Their Claims Because Punch
Records Do Not Reflect Time Worked.
29 C.F.R. §785.48(a), entitled “Differences between clock records and actual hours

worked,” states that:
Time clocks are not required. In those cases where time clocks are used,
employees who voluntarily come in before their regular starting time or
remain after their closing time, do not have to be paid for such periods
provided, of course, that they do not engage in any work. Their early or late
clock punching may be disregarded.
Accordingly, FLSA plaintiffs seeking overtime must “provide evidence that [they] were actually
working without compensation—not simply that they were clocked in for over 40 hours.” Weil,
925 F.3d at 357 (emphasis in original).
Plaintiffs all testified that access to Metalcraft’s punch records would trigger their
recollection of when they punched in and out on a particular day. (See 17-1439 ECF No. 92-1 at
115:11-15; 20-0452 ECF No. 36-1 at 121:2-11; 20-0441 ECF No. 37-2 at 108:9-14; 20-0447 ECF
No. 39-1 at 106:20-107:20.) One would certainly hope so. But Plaintiffs’ claims do not fail
because they are unable to precisely recall their punch times unprompted. They fail because
Plaintiffs are unable to establish the amount and extent of their uncompensated work as a matter
of just and reasonable inference. On this issue, punch records are immaterial; they do not establish
time worked. See Anderson, 328 U.S. at 690. Had Plaintiffs provided reliable evidence of the
work they performed immediately after “Clock-In,” the punch records would aid the Court in
estimating the extent of unpaid overtime. But throughout these cases, each Plaintiff has alleged a
general pre-shift work routine and then proceeded to undermine it with caveats, carveouts, and
admissions of forgetfulness. Knowing the exact minute Plaintiffs punched in on a nondescript
Friday in April is certainly a testament to the meticulousness of modern technology, but it does
nothing to remedy the inconsistent guesswork as to what happened subsequent to those punch-ins.
It is that inconsistent guesswork that stifles Plaintiffs’ claims.

CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Defendant’s Motion for Summary Judgment under
Fed. R. Civ. P. 56 (17-1439 ECF No. 90) is GRANTED, and the case is DISMISSED.
Dated at Milwaukee, Wisconsin on December 16, 2021.
s/ Brett H. Ludwig
BRETT H. LUDWIG
United States District Judge