Malicki v. Leman USA Inc

Filing 62

DECISION AND ORDER signed by Magistrate Judge Nancy Joseph on 3/21/2019 denying 56 Motion for Reconsideration. (cc: all counsel) (llc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JODIE L. MALICKI,
Plaintiff,
v.

Case No. 17-CV-1674

LEMAN U.S.A., INC.,
Defendant.
DECISION AND ORDER ON PLAINTIFF’S MOTION
FOR RECONSIDERATION
Jodie L. Malicki, a former hourly-paid, non-exempt Office and Warehouse employee
at Leman U.S.A., Inc.’s Wisconsin location, alleges that Leman maintained several policies
in violation of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”) and
Wisconsin Wage Payment and Collection Laws, Wis. Stat. §§ 109.01 et seq., 103.01 et seq.,
104.01 et seq., and Wis. Admin. Code § DWD 272.01. Specifically, Malicki alleged that she
and other employees were frequently not completely relieved of duty from work during their
regular meal times and that Leman had a common policy of failing to compensate its
employees by rounding, deducting, and/or failing to count recorded and compensable time,
to the benefit of Leman. Malicki initially sought to certify a conditional class of similarly
situated hourly paid, non-exempt Office and Warehouse employees at all of Leman’s
United States locations within three years prior to the date of this lawsuit; however, she later
acknowledged that she was only potentially similarly situated to those employed at Leman’s
Sturtevant, Wisconsin facility.

I denied Malicki’s motion for conditional class certification on February 20, 2019.
(Docket # 55.) Presently before me is Malicki’s motion for reconsideration. Malicki argues
that the decision denying conditional class certification was predicated upon a manifest
error of fact (Docket # 57 at 3–11) and will result in manifest injustice and needless
additional expense (id. at 11–15). For the reasons more fully explained below, Malicki’s
motion for reconsideration is denied.
ANALYSIS
1.

Reconsideration Standard

Malicki moves for reconsideration of the February 20, 2019 order denying her
motion for conditional class certification. Fed. R. Civ. P. 54(b) allows a court to exercise its
inherent authority to reconsider nonfinal orders. See Civix-DDI, LLC v. Hotels.com, LP, 904 F.
Supp. 2d 864, 866 (N.D. Ill. 2012) (citing Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp.,
460 U.S. 1, 12 (1983) (“Every order short of a final decree is subject to reopening at the
discretions of the . . . judge.”). A motion for reconsideration serves a very limited purpose in
federal civil litigation; it should be used only “to correct manifest errors of law or fact or to
present newly discovered evidence.” Rothwell Cotton Co. v. Rosenthal & Co., 827 F.2d 246, 251
(7th Cir. 1987) (quoting Keene Corp. v. Int'l Fid. Ins. Co., 561 F. Supp. 656, 665–66 (N.D. Ill.
1982), aff’d, 736 F.2d 388 (7th Cir. 1984)). While “[a] court has the power to revisit prior
decisions of its own,” courts “should be loathe to do so in the absence of extraordinary
circumstances such as where the initial decision was ‘clearly erroneous and would work a
manifest injustice.’” Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988)
(quoting Arizona v. California, 460 U.S. 605, 618 n.8 (1983)). In general, “litigants must fight

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an uphill battle in order to prevail on a motion for reconsideration.” United Air Lines, Inc. v.
ALG, Inc., 916 F. Supp. 793, 795 (N.D. Ill. 1996).
2.

Reconsideration of Conditional Class Certification Order

The crux of Malicki’s reconsideration motion is that I made a manifest factual error
in finding that Malicki failed to cite any evidence indicating that the alleged similarly
situated employees were not properly compensated for the time they actually worked.
(Docket # 57 at 3.) Malicki further argues I misunderstood her allegations by focusing solely
on the rounding component of her time shaving allegations. (Id. at 5.)
As an initial matter, I did not misunderstand Malicki’s allegations. I noted that she
was challenging the alleged Leman policy of indiscriminately shaving time by impermissibly
rounding, deducting, and/or failing to count recorded and compensable hours. (Docket #
55 at 2.) Malicki argues that her allegations are better understood as time shaving, of which
rounding may be a component. (Docket # 57 at 5.) It is not clear to me, however, how this
distinction impacts the analysis in Malicki’s case. Malicki alleges that time was shaved from
timecards by rounding down, for example, 8.41 hours worked became 8.30 hours worked
and 9.11 hours worked became 9.00 hours worked. (Docket # 26-4.) Either way, Malicki
alleges that Leman improperly altered the timecards to the benefit of Leman.
Malicki argues that evidence of Leman’s practice of rounding, deducting, and/or
failing to count recorded and compensable hours is “plain and indisputable” based on the
timecards and the defendant’s testimony. (Docket # 55 at 6–10.) She believes I was
confused about how the “hours paid” column on the timecard summary was derived and
counters that how it was derived was “plain and indisputable based on the credible evidence

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in the record.” (Id. at 6.) Malicki again points to the handwritten numbers on the timecards.
(Id. at 7.) I respectfully disagree with Malicki.
To begin, Malicki does not address or attempt to distinguish the strikingly similar
case of Yockey v. Staffing Sols., Inc., No. 215CV00411JMSMJD, 2016 WL 7242482 (S.D. Ind.
Dec. 15, 2016) cited in the decision. In Yockey, the plaintiff also provided timecards with
handwritten numbers on them as purported evidence of timekeeping violations. In finding
Yockey failed to satisfy even the lenient standard at the conditional class certification stage,
the court stated as follows:
Mr. Yockey does not attest to or provide any evidentiary support as to
what the entries on these time cards reflect (i.e., the entries on the righthand side, versus the handwriting on the left); whose handwriting appears
on the time card; or who prepared the time card and how it was prepared.
He also does not identify which entries on these time cards provide
evidence of a timekeeping violation, and if so, which type of violation is
evident (i.e., illegal rounding or meal time violations).
Id. at *5. I have similar concerns in Malicki’s case, as I stated in the order denying
conditional class certification. I do not know whose handwriting appears on the time cards
or what the numbers mean. While Malicki wants me to assume that the handwritten
numbers were written by a Leman employee and signify the time for which the employees
were actually paid, assumptions are not evidence and a plaintiff must provide at least some
evidence that she and other potential plaintiffs were victims of a common policy or plan that
violated the law. See id. at *4. Nor does Malicki address the fact that she specifically testified
that she was not aware of any other employees who were required to work through their
lunch or were otherwise subjected to Leman’s alleged improper timekeeping practices.
(Docket # 55 at 9.)

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Malicki further argues that the defendant’s testimony establishes that employees
were not paid based upon their time actually worked. (Docket # 57 at 8.) Malicki points to
Janice Larsen’s affidavit in which she explained Leman’s system for verifying and correcting
any payroll errors with the employees. Malicki argues that because Larsen averred that the
“manual punch cards were first reviewed by the employees then totaled by either the
employee or his or her supervisor,” this demonstrates that employees were not paid based
upon their time actually worked. (Docket # 57 at 8, emphasis by Malicki.) Nothing about
the supervisor totaling the hours worked, in and of itself, indicates in any way that
employees were not being properly paid. Further, Malicki ignores that Larsen further
averred that after the hours were totaled, the “manual punch cards were then initialed by
both the employee and the supervisor to certify that the totals were a true and correct record
of the actual hours worked by the employee.” (Affidavit of Janice Larsen ¶ 2, Docket # 481.)
Again, either the employee or the supervisor totals the employee’s hours worked. But
if that number is then written on the timecard, who wrote it? The employer or the
employee? While Malicki believes the same handwriting appears on three of the timecards
(Docket # 57 at 8), she presented no evidence that the handwriting is that of the same
person or who that person is. And what of the handwriting on the other timecards? And the
fact that some of the timecards do not contain any handwritten numbers at all? Perhaps the
handwritten numbers reflect corrections made by the employee. While I can make
suppositions, the point is that Malicki presents no evidence to support her contentions.
Malicki also effectively argues that Leman’s switch to the computerized time card
system called UltiPro in April 2016 shows Leman was aware of the alleged FLSA violations
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because UltiPro was “automatically programmed to round time entries in a neutral
manner.” (Docket # 57 at 10.) Malicki cites to paragraph five of the affidavit of Susan
Satula in support of this assertion. (Id.) Paragraph five, however, does not speak to
automatic rounding, nor does any portion of Satula’s affidavit. (Affidavit of Susan Satula,
Docket # 48-3.) Thus, as I stated in the decision, nothing in any of the affidavits of Leman
employees even shows that time shaving or rounding was taking place. (Docket # 55 at 7–
9.)
Again, without either pay statements or testimony from fellow employees regarding
what they were actually paid, I am left with Malicki’s supposition that the handwritten
numbers on these timecards were written by Leman and that the numbers represent the
hours the employees were actually paid. This is insufficient to satisfy the requirement of
even the modest factual showing.
Malicki further argues that the decision results in a manifest injustice and will result
in needless additional expense if the putative class members must file separate lawsuits. She
argues that as the employee, she is at a fundamental disadvantage because she is
discouraged from conducting substantial discovery, “lest she face being held to an even
higher level of evidentiary scrutiny,” whereas the defendant-employer can cherry-pick those
individuals most advantageous to its defenses and present those declarations. (Docket # 57
at 12–13.) Malicki is not being held to a higher level of evidentiary scrutiny. The showing
she must make is minimal. But Malicki’s showing is non-existent. And nothing prevented
Malicki from submitting affidavits or declarations from putative class members stating that
they too were improperly paid. Consider Brabazon v. Aurora Health Care, Inc., No. 10-CV714, 2011 WL 1131097, at *5 (E.D. Wis. Mar. 28, 2011), where the plaintiff supported his
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motion for conditional class certification with the declarations of nine putative plaintiffs.
Again, while plaintiffs need not produce evidence that other employees wish to join a class
before the class notice may be sent out, see Heckler v. DK Funding, 502 F. Supp. 2d 777, 780
(N.D. Ill 2007), a “demonstrable lack of interest in a collective action is a strike against
certification,” Hadley v. Journal Broad. Group, Inc., No. 11-CV-147, 2012 U.S. Dist. Lexis
19452, at *15 (E.D. Wis. Feb. 16, 2012).
Malicki has not shown a manifest error of fact. Rather, she rehashes previously
rejected arguments, which is not a proper basis for reconsideration. See Caisse Nationale de
Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1270 (7th Cir. 1996). For these reasons,
Malicki’s motion for reconsideration is denied.
ORDER
NOW, THEREFORE, IT IS HEREBY ORDERED that the plaintiff’s motion for
reconsideration (Docket # 56) is DENIED.
Dated at Milwaukee, Wisconsin this 21st day of March, 2019.
BY THE COURT:
s/Nancy Joseph
NANCY JOSEPH
United States Magistrate Judge

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