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6th Cir.: Where Plaintiff Presented No Other Evidence, Plaintiff’s Testimony Alone Sufficient to Defeat Defendant’s Motion for Summary Judgment
This case was before the Sixth Circuit on the plaintiff’s appeal of the trial court’s order awarding defendants summary judgment on liability. As explained in more detail in the court’s decision, the defendants relied on their own time and pay records, and testimony from plaintiff’s former supervisor, in which they denied that plaintiff ever worked more than 40 hours in a workweek. Although the plaintiff testified that the records were not accurate and that he typically worked approximately 58 hours per week, the court below adopted the testimony of the defendants that plaintiff never worked in excess of 30 hours per week, and thus was properly paid $10 per hour (or $300 per week). The Sixth Circuit reversed and remanded, and applied well-settled law regarding the parties’ respective burdens at the summary judgment stage.
The court framed the issue before it as follows:
This appeal raises one simple question: Where Plaintiff has presented no other evidence, is Plaintiff’s testimony sufficient to defeat Defendant’s motion for summary judgment?
The Sixth Circuit held that an FLSA plaintiff’s testimony alone is sufficient to defeat a defendant’s motion for summary judgment:
We hold that it is. Plaintiff’s testimony coherently describes his weekly work schedule, including typical daily start and end times which he used to estimate a standard work week of sixty-five to sixty-eight hours. The district court characterized this testimony as “somewhat vague .” (R. 26, Opinion and Order, Page ID # 475.) However, while Plaintiff’s testimony may lack precision, we do not require employees to recall their schedules with perfect accuracy in order to survive a motion for summary judgment. It is unsurprising, and in fact expected, that an employee would have difficulty recalling the exact hour he left work on a specific day months or years ago. It is, after all, “the employer who has the duty under § 11(c) of the [FLSA] to keep proper records of wages [and] hours,” and “[e]mployees seldom keep such records themselves.”Anderson, 328 U.S. at 687. Defendants emphasize the fact that Plaintiff’s testimony is inconsistent with the allegedly contemporaneous timesheets Defendants provided to the court. But these timesheets do not amount to objective incontrovertible evidence of Plaintiff’s hours worked. Plaintiff denies the validity of these timesheets, which were handwritten by Defendants, and contends that Defendants sanctioned his overtime work. Whether his testimony is credible is a separate consideration that is inappropriate to resolve at the summary judgment stage.
Putting this case in perspective, the Sixth Circuit discussed its prior jurisprudence regarding the same issue:
We have previously found that a Plaintiff’s testimony can create a genuine issue of material fact foreclosing summary judgment in a lawsuit brought under the FLSA. In O’Brien v. Ed Donnelly Enters., Inc., 575 F.3d 567 (6th Cir.2009), we considered a collective action brought against an employer for underpayment of wages in violation of the FLSA. Although we affirmed the district court’s decertification of the collective action in O’Brien, we considered the district court’s grant of summary judgment as to the lead plaintiffs. Plaintiff O’Brien alleged both that the defendants altered her time records and that she was required to work off-the-clock. With respect to O’Brien’s “off-the-clock” claim, the defendants argued that they were “not liable under the FLSA because there is no evidence that defendants knew that O’Brien was working without compensation.”Id. at 595–96. Nonetheless, despite the lack of corroborating evidence, we held that the district court “erred when it granted defendants’ motion for summary judgment as to O’Brien’s ‘off the clock’ claim,'” since the plaintiff’s own “deposition testimony clearly creates a genuine factual issue, because she asserts that [the defendants] knew that she was working off the clock.”Id. at 596. The O’Brien court reached this conclusion despite the plaintiff’s at times contradictory testimony. Id. at 595.
This holding is consistent with our decision in Harris v. J.B. Robinson Jewelers, where we explicitly found that a plaintiff’s testimony is itself sufficient to create a genuine issue of material fact. 627 F.3d 235 (6th Cir.2010). In Harris, we considered the appropriateness of summary judgment where a plaintiff testified that her jeweler had replaced a diamond in her ring with a smaller, less-valuable diamond. In that case, we reviewed the district court’s decision to exclude the plaintiff’s testimony as well as its decision to exclude the affidavits of three corroborating witnesses. Notably, we determined that “[the plaintiff’s] testimony alone is sufficient to create a jury question regarding the alleged replacement [of her diamond].”Id. at 239 (emphasis added). The district court in this case disregarded the applicability of that determination to the case at hand, focusing instead on the fact that the Harris court also deemed admissible the sworn affidavits of the three corroborating witnesses. Such disregard was mistaken. Our opinion in Harris clearly states that, regardless of the three additional affidavits, the plaintiff’s testimony was itself sufficient to create a genuine issue of material fact.
The same principles at work in Harris and O’Brien apply here. Despite the lack of corroborating evidence, Plaintiff’s testimony is sufficient to create a genuine dispute of material fact that forecloses summary judgment at this juncture. Defendants cite to no Sixth Circuit precedent for the opposite conclusion; rather, they rely on three district court opinions and a handful of opinions from other circuits. None of these cases counsel in favor of ignoring clearly applicable Sixth Circuit caselaw. The district court cases cited by Defendants are neither precedential nor instructive in the present case, and we note that this Court did not have an opportunity to review their reasonableness on appeal. Nor do the out-of-circuit cases cited by Defendants belie the applicability of our own Circuit’s on-point precedent and the basic tenets of summary judgment law to the case at hand.
As such the court concluded:
On summary judgment, all reasonable inferences must be made in favor of the non-moving party and, as we have held in the past, a plaintiff’s testimony alone may be sufficient to create a genuine issue of material fact thereby defeating a defendant’s motion for summary judgment. This is such a case. Here, Plaintiff put forward testimony that contradicted that of Defendants, describing his typical work schedule with some specificity and estimating that he worked sixty-five to sixty-eight hours a week on average. This contradictory testimony creates a genuine issue of material fact.
We therefore REVERSE the ruling of the district court granting summary judgment in favor of Defendants and REMAND the case for further proceedings consistent with this opinion.
Click Moran v. Al Basit LLC to read the entire Sixth Circuit decision.
E.D.Wisc.: Plaintiff Who Helped Set Up Defendants’ Business Was an Employee Subject to FLSA Coverage, Not a Volunteer
Okoro v. Pyramid 4 Aegis
This case was before the Court on the plaintiff’s motion for summary judgment on a variety of issues. As discussed here, the plaintiff sought a finding that she was entitled to minimum wages under the FLSA as an employee, while the defendants contested that, arguing that any duties she had performed for them were volunteered. The case apparently followed the break-up of the plaintiff from the individual defendant in their romantic relationship. It was undisputed that the plaintiff performed many duties for the defendants- operators of a group home- over the approximate 2 years in question, including obtaining workers compensation insurance, attendance at residential training classes, cleaning and purchasing items for the facility, putting in business processes for the business (i.e. payroll services), marketing, hiring employees on behalf of defendants and other duties necessary for the defendants’ business to operate. While most of these facts were uncontested, the defendants maintained that this work was all volunteered, despite the fact, while the plaintiff asserted she expected to be paid as an employee.
After discussing various tests for employment under the FLSA (i.e. independent contractor vs employee), the court noted that there was no specific test for determining whether someone who performs duties for another is an employee or a volunteer under the FLSA. Thus, the court explained it was constrained only by a flexible “reasonableness” standard that takes into account the totality of the circumstances. The court explained:
In determining whether someone is an employer or a volunteer, this court has not stumbled upon any factored test similar to that of the 6–factor economic realities test used to differentiate independent contractors and employees. Rather, the court finds that the test for employment is governed by a reasonableness standard that takes into account the totality of the circumstances. The court is to review ” ‘the objective facts surrounding the services performed to determine whether the totality of the circumstances’ establish volunteer status, … or whether, instead, the facts and circumstances, objectively viewed, are rationally indicative of employee status.” Purdham, 637 F.3d at 428 (quoting Cleveland v. City of Elmendorf, 388 F.3d 522, 528 (5th Cir.2004)). In addition to the “economic reality” of the situation, other factors to consider include whether there was an expectation or contemplation of compensation, whether the employer received an immediate advantage from any work done by the individual, the relationship of the parties, and the goals of the FLSA. See Alamo Found., 471 U.S. at 300–01;
Rutherford Ford Corp. v. McComb, 331 U.S. 722, 730 (1947) (stating that the employer-employee relationship “does not depend on such isolated factors but rather upon the circumstances of the whole activity”); Lauritzen, 835 F.2d at 1534–35). It is the examination of objective indicia and the application of common sense with which this court arrives at its determination of whether the plaintiff here is an employee for purposes of the FLSA.
Applying this test to the facts at bar, the court held that the plaintiff was an employee rather than a volunteer:
According to Okoro, she never agreed to volunteer for Aegis; at all times, she expected to be compensated for her work. Specifically, Okoro expected to be paid $2,000 per month for her work, and in agreeing to defer her compensation until the facility garnered clients, she still worked with the expectation that she would be paid. (Okoro Aff. ¶¶ 4, 7–9.) Battles, while arguing that Okoro was a volunteer, also states that he intended to pay Okoro for her work if she qualified as an administrator and if the business had enough money in the future. (Battles Aff. ¶¶ 6, 25 .) The court notes Battles’s expectation not for the purpose of weighing the parties’ competing assertions (for this would surely contradict the FLSA’s remedial purpose) but to merely highlight that he too contemplated a compensation mechanism for Okoro’s work.
Expectations aside, it is not entirely correct for the plaintiff to assert that the defendants have failed to identify any personal benefit that Okoro purportedly received from her work for Aegis. In his affidavit, Battles avers that when Okoro sold him worker’s compensation insurance for Aegis, she told him “that she wanted to learn the group home business and therefore, she would learn the business by working at Pyramid 4 Aegis for no compensation.” (Battles Aff. ¶ 5.)
This court is not unmindful of any claim that Okoro may have wanted to learn and indeed did learn about the CBRF business. That may certainly have been part of her motivation in providing Battles some assistance in his effort to build the business. However, Battles does not deny that the work Okoro performed on behalf of Aegis conferred an immediate benefit to the company. Thus, the facts in this case stand in stark contrast to those in Walling. In Walling, the lower court’s finding that “the railroads receive[d] no ‘immediate advantage’ from any work done by the trainees” was unchallenged. 330 U.S. 148, 153. Indeed, “the applicant’s work [did] not expedite the company business, but … sometimes [did] actually impede and retard it.” Id. at 150. In other words, the railroad was not receiving any immediate benefit from the training that was being given to the prospective brakemen.
Not so in the case at bar. The evidence here does not demonstrate that the work performed by Okoro on behalf of Aegis interfered in any way with the business of Aegis. To the contrary, the nature of the work that she performed, such as cleaning, picking up prescriptions, appearing in court on behalf of clients at the facility, and calling in hours for caregivers to Paychex, was undeniably of substantial assistance to Aegis. Even more to the point, such work was not akin to the “course of practical training,” which the prospective yard brakemen in Walling received. Id. at 150. One hardly needs to be trained in how to clean a facility, how to pick up prescriptions, and how to call in hours for caregivers.
Additionally, the economic reality of the situation was that Okoro worked for Aegis for a substantial length of time. The length of the “training course” that the prospective brakemen received in Walling was seven or eight days. Id. at 149. By contrast, Okoro worked for Aegis over the course of almost one year.
To be sure, Okoro and Battles had a “personal relationship” over the course of the relevant time period. (Okoro Aff. ¶ 6.) While it may be that at least some of the time Okoro spent at Aegis was to socialize with Battles, that particular matter may speak to the amount of damages to which she is entitled; after all, socialization may not be the equivalent of work. For purposes of Okoro’s motion, it is sufficient to find that, despite her relationship with Battles, she still performed substantial work for Aegis, Aegis reaped a direct and immediate benefit from her work, and she had a reasonable expectation that she would be compensated for her work. In sum, taking into account the totality of the circumstances in this case leads me to conclude that Okoro performed work for Aegis as an employee and not as a volunteer.
The court also noted the duty to interpret the FLSA broadly in favor of coverage, given the FLSA’s remedial purpose:
Finally, it must not be forgotten that, by design, the FLSA’s purpose is “remedial and humanitarian.” Tenn. Coal, Iron & R.R. Co. v. Muscodoa Local No. 123, 321 U.S. 590, 597 (1944), superseded by statute, Portal–to–Portal Act of 1947, Pub.L. No. 80–49, 61 Stat. 86 (1947) (codified as amended at 29 U.S.C. § 254). To effectuate this purpose, the FLSA requires courts to interpret its application broadly. See id. With this in mind, allowing Aegis the benefit of Okoro’s free labor when there existed an expectation of compensation would not comport with the FLSA’s purpose.
Thus, to the extent that the plaintiff’s motion seeks a determination that she worked for Aegis and is therefore entitled to compensation for such work under the FLSA, her motion will be granted. Precisely how much work she performed for Aegis, and for how many hours she should be compensated by Aegis, are matters for trial. It is enough to say that the work she performed for Aegis, at least for purposes of the FLSA, was not as a volunteer, but rather as an employee.
Click Okoro v. Pyramid 4 Aegis to read the entire Decision and Order on Plaintiff’s Motion for Summary Judgment.
S.D.Fla.: Employer Need Not Pay Employee MW For All Hours Worked to Take Advantage of Tip Credit
Goldin v. Boce Group, L.C.
This case was before the court on defendant’s motion to dismiss, for failure to state a claim. The plaintiff’s theory of relief for minimum wage violations arose from the fact that while he worked 51 hours per week, each week, Defendants paid Plaintiff the required reduced minimum wage for only forty hours, and failed to pay him at all for the additional eleven hours of overtime. Plaintiff claimed that because Defendants “did not pay Plaintiff the required amount for every hour he worked,” they were not permitted to take advantage of the tip credit at all and must disgorge the entire tip credit. Inasmuch as the FLSA requires that employers who seek to take the tip credit must pay tipped minimum wage in order to do so, this theory would seem to make perfect sense, however the court disagreed and dismissed the case.
The court reasoned:
“There is no basis in the FLSA for the relief Plaintiff seeks. The FLSA clearly lays out the prerequisites an employer must meet in order to claim the tip credit. There are only two: (1) the employer must inform the employee that the employee will be paid the reduced minimum wage; and (2) all tips received by the employee must be retained by the employee. 29 U.S.C. § 203(m). There is no “condition precedent” that the reduced cash wage be paid for every hour worked before an employer is entitled to claim the statutorily-mandated tip credit. See id. Congress could, and did, write into the FLSA express conditions precedent to the application of the tip credit. The Court declines to read a condition precedent into the statute where Congress did not create one. In re Tennyson, 611 F.3d 873, 877 (11th Cir.2010) (stating that where statute is “clear, unambiguous, and does not result in any absurd consequences,” the Court “will not … read into the text of the statute an unstated purpose.”).
In addition, the FLSA very clearly lays out the remedies available to employees who are subject to FLSA violations by employers. Successful FLSA plaintiffs are entitled to recover “the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and [ ] an additional equal amount as liquidated damages.” 29 U.S.C. § 216(b). Congress wrote specific remedies into the statute. Congress did not choose to include as a remedy disgorgement of the tip credit where the plaintiff is a tipped employee. The Court will not write this additional remedy into the statute where Congress did not see fit to do so. See In re Tennyson, 611 F.3d at 877.
In addition, two other divisions of court in this District have rejected Plaintiff’s theory on almost identical facts. See Muldowney v. Mac Acquisition, LLC, Case No. 09–22489–CIV, 2010 WL 520912 (S.D.Fla. Feb. 9, 2010) (Huck, J.); Perez v. Palermo Seafood, Inc., Case No. 07–21408–CIV, 2008 WL 7505704 (S.D.Fla. May 8, 2008) (O’Sullivan, M.J.). In both cases, a tipped employee who was paid the reduced minimum wage for some hours claimed their employers were not entitled to claim the tip credit because they were not paid for “off-the-clock work.”
In Palermo Seafood, Magistrate Judge O’Sullivan found no textual support in the statute for the plaintiff’s position, observing: “The cases that have disallowed the tip credit have done so because the employer failed to comply with one, or both, of the following requirements: (1) the employee receive proper notice of the tip credit and (2) that the employee is not required to share his or her tips with non-tipped employees.” 2008 WL 7505704 at *2. Accordingly, Judge O’Sullivan found tip credit should apply to the plaintiff’s regular shift hours, for which she was compensated at the reduced minimum wage. Id. at *1.
In Muldowney, Judge Huck came to the same conclusion:
Section 203(m) merely prescribes the method for calculating a tipped employee’s wages and sets forth two explicit requirements that must be met for an employer to claim the tip credit, both of which are satisfied in this case. The statute says nothing about unpaid wages due to off-the-clock hours. Further, by rejecting Plaintiff’s interpretation, she is not left without a remedy: she can seek unpaid wages for her alleged off-the-clock hours under state law or other sections of the FLSA. Therefore, the Court finds that Defendants are entitled to the tip credit for hours where Plaintiff was paid the specified reduced cash wage.2010 WL 520912 at *1.
The Court agrees with these two well-reasoned decisions. However, this does not mean, as Plaintiff argues, that employers are therefore not required to pay employees the minimum wage for every hour worked. Of course employers must compensate employees at the required rate for every hour worked, and of course the failure to do so is a violation of the FLSA. 29 U.S.C. § 206(a)(1) (providing minimum wage amounts); 29 U.S.C. § 215(a)(2) (creating cause of action for violation of minimum wage and overtime provisions).”
It should be noted that this decision and the 2 decisions on which it relies were all rendered in the Southern District of Florida. As tipped employee cases continue to become more and more prevalent though, as a result of tremendous amount of abuses of tipped workers in various industries, it will be interesting to see if courts outside of the Southern District of Florida have a different take, based on the text of 203(m).
Click Goldin v. Boce Group, L.C. to read the entire order.
Overtime Law Blog 