Mammos, Denise v. Wyndham Vacation Resorts, Inc.

Filing 40

ORDER granting in part and denying in part 12 Motion for Summary Judgment. Signed by District Judge Barbara B. Crabb on 3/14/14. (krj)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - DENISE MAMMOS,
OPINION AND ORDER
Plaintiff,
13-cv-59-bbc
v.
WYNDHAM VACATION RESORTS, INC.,
Defendant.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Plaintiff Denise Mammos (now Denise Lopez) is suing her former employer,
defendant Wyndham Vacation Resorts, Inc., for failing to give her overtime pay in
accordance with the Fair Labor Standards Act and Wisconsin labor law. Plaintiff has filed
a motion for summary judgment on the following issues:
(1) plaintiff’s job as a podium presenter qualified for overtime pay under the
FLSA and Wisconsin law;
(2) while working as a podium presenter, plaintiff worked more than 40 hours
in a week without receiving overtime pay;
(3) while working as a frontline sales representative, plaintiff worked more
than 40 hours in a week without receiving overtime pay;
(4) defendant failed to keep records of the hours plaintiff worked as required
by the FLSA;
(5) plaintiff is entitled to liquidated damages for defendants’ failure to give her
overtime pay while she was working as a podium presenter; and
(6) plaintiff is entitled to liquidated damages for defendants’ failure to give her

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overtime pay while she was working as a frontline sales representative.
In its opposition brief, defendant does not respond to plaintiff’s first argument that
her job as a podium presenter qualified for overtime pay, so I will grant her motion as to that
issue. (Plaintiff did not seek summary judgment on the question whether her job as a
frontline sales representative qualified for overtime pay, presumably because the parties did
not dispute that issue even when plaintiff filed the lawsuit.) I am denying plaintiff’s motion
in all other respects for her failure to show that there are no genuine issues of material fact.
Fed. R. Civ. P. 56.

OPINION
A. Overtime
From November 2008 until at least July 2010 and then again in 2012, plaintiff
worked as a frontline sale representative for defendant, selling timeshares.

Her

responsibilities included giving tours of the time share units and giving “sales pitches” to
potential customers. From July 2010 to March 2012 and from July 2012 to September
2012, plaintiff worked as a “podium presenter” for defendant. Among her duties in this job
was giving group presentations about the time shares.
At this point, the parties agree that, under the Fair Labor Standards Act and
Wisconsin law, defendant was required to pay plaintiff one and a half times her normal rate
of pay for any time she worked more than 40 hours in a particular week, regardless whether
she was working as a frontline sales representative or as a podium presenter. 29 U.S.C. §

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207(a); Wis. Stat. § 103.02. Neither side suggests that there are any relevant differences
between state and federal law for the purpose of plaintiff’s motion and neither side cites any
Wisconsin case law in their briefs, so I will look to federal case law for guidance in deciding
the motion.
Because plaintiff is not seeking summary judgment on the amount of damages, the
question raised by plaintiff’s motion is whether the undisputed facts show that she did not
receive overtime pay for working more than 40 hours during any week while she was a
frontline sales representative and any week while she was a podium presenter. This question
can be broken down into three parts: (1) whether plaintiff ever worked more than 40 hours
in a week for either job; (2) if so, whether defendant had actual or constructive knowledge
of this, Kellar v. Summit Seating Inc., 664 F.3d 169, 177-78 (7th Cir. 2011); and (3) if so,
whether plaintiff received overtime pay for the week in question. With respect to both of
her jobs, plaintiff has failed to show the absence of any disputed facts on the first and second
parts of the question, so I need not consider the third part.

1. Frontline sales representative
To show that she worked more than 40 hours in a week while she was a frontline sales
representative, plaintiff does not rely on defendant’s time records. It seems to be undisputed
that the records do not show that she worked overtime. However, plaintiff argues that the
records are inaccurate and she cites several types of evidence in her brief to support her view.
First, plaintiff cites her own testimony about the duties she performed. Plt.’s PFOF

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¶¶ 43-56, dkt. #13. However, that testimony is not helpful because she never establishes
how those duties added up to more than 40 hours in a particular week.
Next, she cites her own testimony that she “typically” began working between 7:30
a.m. and 9:00 a.m. and “there were days” that she worked until 11:00 p.m., id. at ¶ 41, that
her managers told her to punch out to keep her recorded hours under 40, id. at ¶ 34, and
that she “typically” worked six days a week during summer months, id. at ¶ 42. Even if I
assume that plaintiff’s testimony is sufficient to support a judgment in her favor, she cites
no authority for the proposition that a court should disregard time records if an employee
testifies that they are inaccurate. Rather, the competing evidence shows that there are
disputed issues of fact that must be resolved at trial.
Finally, plaintiff cites several work-related emails that she sent after she had punched
out for the day. Id. at ¶ 33. Although the emails are evidence that plaintiff was not paid for
all of her time, that is not the relevant question under the FLSA. Because plaintiff never ties
the discrepancies between the time records and the emails to a showing that she worked
more than 40 hours in a particular week, they do not show that she is entitled to judgment
as a matter of law.
Plaintiff cites new evidence in her reply materials, but it is well established that
parties may not make new arguments or cite new evidence in the context of a summary
judgment motion when the opposing party does not have an opportunity to respond. Casna
v. City of Loves Park, 574 F.3d 420, 427 (7th Cir. 2009); Narducci v. Moore, 572 F.3d 313,
324 (7th Cir. 2009). Accordingly, I am denying plaintiff’s summary judgment motion as to

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this claim.

2. Podium presenter
Plaintiff relies on her own testimony to show that she worked more than 40 hours a
week while she was a podium presenter. In particular, she says that she worked an average
of 60 to 65 hours a week. Plt.’s PFOF ¶ 15, dkt. #13. This claim starts out stronger because
defendant does not cite any time clock records to dispute plaintiff’s testimony. (Plaintiff
says that defendant was not tracking her time because it incorrectly classified the job as
exempt from the requirements of the FLSA. Defendant does not provide an explanation,
except to suggest that plaintiff was violating company policy by not using the time clock.)
Defendant cites other evidence in an attempt to dispute plaintiff’s testimony, but I need not
decide whether defendant’s evidence is sufficient to create a genuine issue of material fact.
Regardless whether it is undisputed that plaintiff worked more than 40 hours a week, the
problem with this claim is that, in her opening brief, plaintiff ignores the question whether
defendant had actual or constructive knowledge that she was working overtime, which is one
of the requirements of her claim. Kellar, 664 F.3d at 177-78 (“[T]he FLSA stops short of
requiring the employer to pay for work it did not know about, and had no reason to know
about.”). Again, plaintiff addresses this issue in her reply brief, but that was too late.
Accordingly, I am denying plaintiff’s summary judgment motion as to this claim as well.

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B. Record Keeping
Under 29 U.S.C. § 211(c), employers are required to “make, keep, and preserve”
records of the hours their employees work. Although plaintiff does not argue that she has
a separate cause of action under § 211(c), she asks the court to find that defendant violated
the provision so that “defendant has the burden to disprove any reasonable estimate of
damages offered by plaintiff.” Plt.’s Br., dkt. #14. She relies on Anderson v. Mt. Clemens
Pottery Co., 328 U.S. 680 (1946), in which the Supreme Court considered how an employee
may prove her case when the employer’s records are incomplete or inaccurate. The Court
stated that, once an employee “produces sufficient evidence to show the amount and extent
of that work as a matter of just and reasonable inference,” the burden shifts to the employer
to produce evidence of the precise amount of work performed or to negate the
reasonableness of the inference to be drawn from the employee's evidence. Id. at 687-88.
As discussed above, defendant denies that its time records are inaccurate, so I cannot
decide as a matter of law whether Anderson applies. Although it is undisputed that plaintiff
generally did not use a time clock while she was working as a podium presenter, defendant
says that other evidence reflects plaintiff’s time, such as their “tour reception reports.”
Because plaintiff did not address that evidence until her reply brief, I cannot grant summary
judgment on this issue.

C. Liquidated Damages
An employee is entitled to liquidated damages for violations of the FLSA unless the

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employer can show both that it acted in “good faith” and that it had “reasonable grounds”
for believing that it was acting lawfully. 29 U.S.C. §§ 216(b) and 260. Because I am
denying plaintiff’s motion for summary judgment as to liability, it follows that I must deny
her motion for summary judgment on the question whether she is entitled to liquidated
damages.

ORDER
IT IS ORDERED that plaintiff Denise Mammos’s motion for summary judgment,
dkt. #12, is GRANTED with respect to the issue that plaintiff’s job as podium presenter
qualified for overtime pay under the Fair Labor Standards Act and Wisconsin law. The
motion is DENIED in all other respects.
Entered this 14th day of March, 2014.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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