TIMOTHY J. CORRIGAN, District Judge.
This case is before the Court on three pending motions: Carter's Retail, Inc.'s ("Carter's") Motion for Summary Judgment as to the Estate of Bridget Washington (Doc. 79), Carter's Motion for Summary Judgment as to plaintiff Catherine Harrington (Doc. 80), and Carter's Motion for Rule 11 Sanctions (Doc. 91). The Court has reviewed and considered the parties' submissions regarding these motions, as well as relevant portions of the record. The Court heard oral argument on the motions on June 2, 2014 and incorporates the record of the hearing by reference.
This suit involves allegations against Carter's under the Fair Labor Standards Act ("FLSA"), 28 U.S.C. § 201
Carter's hired Washington to be the store manager at its St. Augustine location ("Store 87") on March 20, 2000 (Doc. 24 at 6), and Carter's hired Harrington to be a part-time retail associate on April 24, 2007.
Washington and Harrington's FLSA claims stem from allegedly being forced to work off the clock hours without pay, in order to manage the store adequately. Doc. 90-3 (Harrington Dep.) at Tr. 11. Washington alleges Carter's violated the FLSA by failing to compensate her for the work performed off the clock in excess of forty-hours per week, and then retaliated against her when she complained. (Doc. 24 at 13). Harrington alleges that Carter's violated the FLSA when the number of hours she worked off the clock from June 2007 to November 2008, pushed her hourly rate below the federal minimum wage standard. Doc. 90-3 (Harrington Dep.) at Tr. 104; (Doc. 24 at 11-12). Furthermore, Washington alleged Carter's violated her rights under the FMLA when she requested multiple days off for medical treatment and Carter's refused.
Plaintiffs claim the alleged FLSA violation stems from "unrealistic expectations by the district manager," and Washington's direct supervisor, Jessie Cunningham ("Cunningham"). Doc. 90-3 (Harrington Dep.) at Tr. 11. Plaintiffs allege Cunningham forced them to get work done off the clock because she would not authorize overtime. See id. Plaintiffs claim the low payroll hours budgeted to the store through Cunningham, as well as high associate turnover, and "unsafe" closing practices forced them to clock out, but continue working. See id. at Tr. 11, 95. Washington and Harrington would sometimes work before clocking in, or work after clocking out, to complete the necessary tasks still needed to be done. See id. Harrington claims that the uncompensated work included times she stayed "afterward and worked off the clock to either protect another coworker or to clean the store or to talk to the next manager coming in or supervisor coming in to explain what we were doing and what was going on." Id. at Tr. 95. Washington would sometimes work from home without recording her time. Doc. 79-12 (Doretha Washington Dep.) at Tr. 64. Washington's mother testified that it was the only way her daughter could get the job done.
The only notice that Carter's had about the off the clock work was a self-report made by Harrington. Harrington said she notified Cunningham about staying to protect an employee scheduled to close alone. Doc. 80-6 (Harrington Dep.) at Tr. 122. Harrington claims her purpose in reporting her own violation of Carter's timekeeping policy was to influence Cunningham to budget more employee payroll hours for the store and said that Washington knew what she was doing. Doc. 80-6 (Harrington Dep.) at Tr. 159. Harrington never "wanted pay" to stay with an employee closing alone, but wanted "HR to realize that it is an unsafe practice to do that." Doc. 90-3 (Harrington Dep.) at Tr. 158-59. Following this report to Cunningham, Washington—as the store manager—disciplined Harrington for violating Carter's timekeeping policy. Doc. 80-6 (Harrington Dep.) at Tr. 159.
Carter's "clearly communicated" its timekeeping policy to both Washington and Harrington. The policy prohibited off the clock work. Doc. 90-3 (Harrington Dep.) at Tr. 90. Plaintiffs further knew that if they did not follow the timekeeping policy, that it "could end . . . in termination." Doc. 90-3 (Harrington Dep.) at Tr. 90. Although at times Store 87's computer system would not allow employees to clock in or out, Washington and Harrington were able to manually enter store associates' time, and all records were "absolutely" accurate. Doc. 90-3 (Harrington Dep.) at Tr. 92-93. Cunningham never told any employee at Store 87 that they must clock out by 9:30 p.m. Doc. 90-3 (Harrington Dep.) at Tr. 96. However, Washington did tell Harrington, "[i]n a store meeting" that it was the store's policy to clock out at 9:30 p.m. Doc. 90-3 (Harrington Dep.) at Tr. 97. Harrington concedes that "no one ever told [her] to work off the clock," including Washington. Doc. 90-3 (Harrington Dep.) at Tr. 98.
In September 2008, a former assistant manager at Store 87 raised concerns with Cunningham about employees being "told to work off the clock." Doc. 60-6 (Gaby Dep.) at Tr. 255. Subsequently Cunningham pulled the alarm report and time sheets to "perform[] an audit of Bridget Washington's timekeeping practices." Doc. 79-6 (Gaby Decl.) ¶ 12; Doc. 60-6 (Gaby Dep.) at Tr. 255-57. The audit revealed that Washington was working off the clock, and she "sometimes waited hours to clock in ... sometimes leaving the store without clocking out." Doc. 79-6 (Gaby Decl.) ¶ 12. "Ms. Washington was suspended pending further investigation on December 5, 2008." Doc. 79-6 (Gaby Decl.) ¶ 13. Carter's officially terminated Washington's employment on December 12, 2008. Id. Washington claims Carter's terminated her employment in retaliation for complaining to management about not being paid overtime wages. (Doc. 24 at 13). However, at no time did Washington ever complain to any manager at Carter's about working off the clock. Doc. 90-3 (Harrington Dep.) at Tr. 144.
Washington alleges Carter's violated her right under the FMLA when Cunningham denied Washington's request to take time off for medical reasons. (Doc. 24 at 14-16). Washington requested to take time off in September 2007, but never told Cunningham that the purpose of the request was for a medical procedure. Doc. 79-12 (D. Washington Dep.) at Tr. 29. Washington's mother testified that it "was none of her [Cunningham's] business" why Washington requested the leave, and her daughter did not "have to explain to [Cunningham] what she was taking off for." Id. Washington "figured if she took the vacation time, you didn't have to — she didn't have to explain all of that to her [Cunningham]."
Summary judgment is appropriate where "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(a). "An issue of fact is `material' if, under the applicable substantive law, it might affect the outcome of the case. An issue of fact is `genuine' if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party."
The FLSA directs that "[e]xcept as otherwise provided . . ., no employer shall employ any of his employees . . . for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed." 29 U.S.C. § 207(a)(1).
An action commenced under the FLSA has a two-year statute of limitations, unless the action "aris[es] out of a willful violation." 29 U.S.C. § 255(a). Plaintiffs can "obtain the benefit of a 3-year" statute of limitations by proving that "the employer's conduct was willful."
Courts have held that a cause of action under FLSA accrues "when the employer fails to pay the required compensation for any workweek at the regular pay day for the period in which the workweek ends." 29 C.F.R. § 790.21(b). "Because each violation gives rise to a new cause of action, each failure to pay overtime begins a new statute of limitations period as to that particular event."
Under 29 U.S.C § 256, an action is commenced for purposes of an FLSA claim on the date the named plaintiff files the complaint. However, collective actions fall into an exception to the general rule. 29 U.S.C. § 256(a)-(b). If the collective action names an additional "party plaintiff" in the complaint and she files a written consent on the date the complaint is filed, the action is also considered to be commenced on that date vis-à-vis the additional plaintiff. 29 U.S.C. § 256(a). However, if the additional plaintiff's name does not appear in the complaint and written consent is not filed, the subsequent date on which the additional plaintiff filed the consent will be the date the action is deemed to have been commenced as to that plaintiff. 29 U.S.C. § 256(b).
The parties disagree both over whether plaintiffs commenced this action within the two-year statute of limitations and whether the three-year statute of limitations applies. Before taking up the issue of whether Carter's alleged conduct amounted to a willful violation—entitling plaintiffs to an additional year to file—this Court must determine the date the cause of actions accrued as well as the date the action commenced for plaintiffs Washington and Harrington respectively.
Under 29 U.S.C. § 256, the date of commencement for this action is the date Washington filed the original complaint on December 13, 2010. (Doc. 1). To bring a claim for a non-willful violation of the FLSA, the cause of action must have accrued no earlier than December 13, 2008. 29 U.S.C. § 255(a). Washington maintains that the FLSA claims are within the statute of limitations because she filed her complaint on December 13, 2010 and continued to receive wages after December 13, 2008. (Doc. 96-2, Doc. 101-3).
Unfortunately, the only person with personal knowledge of distinct dates and times of the alleged off the clock work is Washington, and she is no longer alive.
The record reveals the following: the pay period for work Washington performed on or before December 5, 2008 ended on December 6, 2008.
Thus, even viewing the evidence in light most favorable to Washington, the actual accrual date for Washington's FLSA claim could have been no later than December 12, 2008. Albeit by one day, she filed this lawsuit late too late to meet the two-year statute of limitations. Unless Washington shows sufficient evidence that Carter's willfully violated the FLSA, any FLSA claim under 29 U.S.C. § 255(a) is time-barred.
While Washington filed the original complaint on December 13, 2010, the complaint did not mention Harrington, nor did it contain a consent form with her signature. (Doc. 1). On March 23, 2011, Harrington filed a consent to join the lawsuit, however the document did not include Harrington's signature. (Doc. 18). It was not until March 28, 2011 that Harrington filed a signed consent form. (Doc. 19). Subsequently on May 10, 2011, plaintiff filed a motion to amend the complaint to add Harrington as an individual plaintiff and withdraw the count asserting a collective action. (Doc. 24). The Court granted that motion and deemed the Amended Complaint (Doc. 24) to be filed as of the date of the Order, on July 13, 2011. (Doc. 30).
Harrington alleged she worked off the clock hours through November 2008. Doc. 80-6 (Harrington Dep.) at Tr. 107. Viewing the evidence in the light most favorable to Harrington, the last possible date she could have worked those off the clock hours was November 30, 2008. Using the pay end and pay dates on Carter's employee earning record, the hours worked November 23 to December 6, 2008 were paid on December 12, 2008. Doc. 101-3 (Washington Earnings Records). Therefore any payment that Carter's failed to pay Harrington for her hourly work done on or up to November 30, 2008 would have also been paid on December 12, 2008.
A "cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued." 29 U.S.C. § 255(a). "To establish that the violation of the Act was willful . . . the employee must prove by a preponderance of the evidence that his employer either knew that its conduct was prohibited by the statute or showed reckless disregard about whether it was."
In this case, the question of willfulness turns on whether management knew or should have known that plaintiffs were working off the clock hours for which compensation was due, thus intentionally or voluntarily violating the FLSA.
No jury could reasonably infer that Cunningham—or any member of management—instructed Washington or Harrington to underreport their hours or work off the clock. In fact, Harrington testified that the system used to record payroll hours was always "absolutely" accurate, even when the computer system had issues. Doc. 80-6 (Harrington Dep.) at Tr. 91-94. Both Washington and Harrington clocked themselves in and out and accounted for their own hours worked. As part of the management team of Store 87, it was Washington and Harrington's duty to make sure all records were accurate including their own; Harrington testified all employee time records were accurate.
Throughout the litigation, Harrington has testified that neither she nor Washington ever complained to upper management about working off the clock because working off the clock "was against company policy." Doc. 79-8 (Harrington Dep.) at Tr. 144. Moreover, Washington never complained or told anyone that she was working uncompensated overtime hours. (Doc. 78 at 13). Plaintiffs concede that both were aware of Carter's timekeeping policy and knew that the company strictly prohibited any off the clock work. As managers, Washington and Harrington were responsible to ensure that Carter's policies—including timekeeping—were followed, not broken. Do. 90-3 (Harrington Dep.) at Tr. 90-91. Both were fully aware of the repercussions if this policy was not followed, including their jobs being "in jeopardy." Doc. 79-8 (Harrington Dep.) at Tr. 144.
Harrington did testify that on one occasion she told Cunningham that she would stay after her scheduled shift to protect associates scheduled to close alone. Harrington believed this was an unsafe practice.
Furthermore, Washington's complaints about payroll hours would not have imputed knowledge to Cunningham that the FLSA was being violated. Just because the FLSA is "in the picture" does not mean the violation is willful; that would "virtually obliterate any distinction between willful and nonwillful violations.
A jury would not be authorized to conclude that Carter's willfully violated the FLSA with reckless disregard because there is no evidence of voluntary, deliberate, or intentional conduct by Carter's. Carter's has established that it made adequate inquiry into both Washington and Harrington's conduct once Harrington's allegations of off the clock work surfaced. Carter's verbally disciplined Harrington and terminated Washington for failing to comply with Carter's timekeeping policies prohibiting off the clock work.
Because plaintiffs have failed to produce evidence from which a jury could infer Carter's willfully violated the FLSA, the default two-year limitations period governs plaintiffs' claims. 29 U.S.C. § 255(a). As plaintiffs filed their claims more than two years after the date they received their final paychecks from which they would have had unpaid compensation due, their FLSA overtime pay claims are time-barred.
Washington asserts that she engaged in protected activity by complaining to Carter's about not being paid overtime wages. Washington maintains Carter's terminated her for complaining about being forced to work off the clock without compensation. Washington asserts that is a non-legitimate, retaliatory reason for termination.
The FLSA's retaliation provision makes it unlawful "to discharge . . . any employee because such employee has filed any complaint. . . ." 29 U.S.C. § 215(a)(3). "The requirement that a complaint be `filed' is intended to provide the employer with `fair notice' that an employee `is in fact making a complaint about an Act violation,' rather than `just letting off steam.'"
Although the statutory requirements may be satisfied by an "informal workplace grievance procedure," the record does not show that Washington ever made anything close to a serious complaint to Carter's. In fact, Washington never complained to anyone at all about working off the clock, except to Harrington. Washington only ever voiced concerns about needing more payroll hours to run the store adequately. Doc. 90-3 (Harrington Dep.) at Tr. 147. Harrington testified that she had personal knowledge that Washington never complained to any manager that any employee in Store 87 was working over 40 hours a week without compensation. Doc. 90-3 (Harrington Dep.) at Tr. 149. Carter's suspended and subsequently terminated Washington after discovering that she was violating the timekeeping policy by not clocking in and out when she was at work. As the store manager, Washington was familiar with the timekeeping policy and was aware that a violation could result in discipline including termination. There is no evidence to suggest Washington complained about off the clock hours or that Carter's terminated her based on any such complaints. This Court finds Washington's complaint falls short of any protected activity under 29 U.S.C. § 215(a)(3).
Although Washington's complaint includes an FMLA claim, Carter's contends Washington has abandoned the claim by virtue of her having failed to mention it in her briefs. (Doc. 89).
Failure to brief and argue the issue during proceedings before the district court is grounds for a finding that the issue has been abandoned.
In Washington's Response to Defendant's Motion for Summary Judgment, Washington failed to defend the FMLA claim. (Doc. 86). In Carter's Reply brief, Carter's argues that because Washington did not mention the FMLA "claim, its elements, or why the claim should survive summary judgment" the "Plaintiff's omission must be deemed abandonment of the claim." (Doc. 89 at 8 n.13). In the sur-reply, Washington does not deny that the claim has been abandoned, and never once mentions the FMLA. Beyond the absence of the FMLA claim in plaintiffs' briefs, at the hearing on June 2, 2014, plaintiffs' counsel candidly told this Court that the crux of the case related to the FLSA, not the FMLA.
Because the FMLA claim alleged in the complaint was not raised during opposition to the motion for summary judgment, the Court deems it abandoned.
Carter's filed a motion under Rule 11 seeking sanctions for plaintiffs' filing and maintaining factually baseless claims. (Doc. 91). Plaintiffs are now represented by court appointed, pro bono counsel after the Supreme Court of Florida suspended plaintiffs' former counsel who brought the suit. Moreover, while unmeritorious, plaintiffs' claims were not so deficient that Rule 11 sanctions are appropriate. In light of these circumstances, the Court declines to sanction plaintiffs.
Accordingly, it is hereby
