ABDUL K. KALLON, District Judge.
Edna Jackson filed this lawsuit against her former employers, Haynes & Haynes, P.C., Alicia Haynes, and Kenneth Haynes, alleging violations of the Fair Labor Standards Act, 29 U.S.C. § 201, and Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. Doc. 1. This court previously dismissed the FCRA claims (Counts III and IV). See doc. 18. Presently before the court are defendants' motion for sanctions for spoliation of evidence, doc. 35, and motions for summary judgment, docs. 43 & 48. The motions are fully briefed, docs. 35; 38; 39; 40; 47; 48; 55; 56; 57; and 59, and ripe for review.
Under Federal Rule of Civil Procedure 56(a), summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." "Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (alteration in original). The moving party bears the initial burden of proving the absence of a genuine dispute of material fact. Id. at 323. The burden then shifts to the non-moving party, who is required to go "beyond the pleadings" to establish that there is a "genuine issue for trial." Id. at 324 (internal citations and quotation marks omitted). A dispute about a material fact is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The court must construe the evidence and all reasonable inferences arising from it in the light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); see also Anderson, 477 U.S. at 244 (all justifiable inferences must be drawn in the non-moving party's favor). Any factual dispute will be resolved in the non-moving party's favor when sufficient competent evidence supports that party's version of the disputed facts. But see Pace v. Capobianco, 238 F.3d 1275, 1276-78 (11th Cir. 2002) (a court is not required to resolve disputes in the non-moving party's favor when that party's version of events is supported by insufficient evidence). However, "mere conclusions and unsupported factual allegations are legally insufficient to defeat a summary judgment motion." Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (citing Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th Cir. 1989)). Moreover, "[a] mere `scintilla' of evidence supporting the opposing party's position will not suffice; there must be enough of a showing that a jury could reasonably find for that party." Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252).
Jackson worked as a paralegal for Haynes & Haynes, P.C., a law firm owned and managed by Alicia Haynes and Kenneth Haynes, for approximately three weeks in August 2014. Doc. 54-1 at 2. Jackson's first paycheck included overtime pay "for at least some of the hours [Jackson] had worked over 40 during the work week or weeks covered by that first pay-check." Doc. 1 at 5. Allegedly, after Alicia Haynes learned about the overtime payment, she "had a conversation with [Jackson]," and purportedly informed Jackson that Haynes & Haynes did not pay overtime and that Jackson should record her daily "stop time" as 5:00 p.m. regardless of when Jackson actually stopped working. Doc. 1 at 5. Thereafter, after noticing that Kenneth Haynes was "alter[ing] the hours of work [Jackson] recorded for Defendants and reduc[ing] them," id. at 6, Jackson complained to Kenneth Haynes about the failure to pay her overtime. Still, Kenneth Haynes continued to alter the hours Jackson recorded on the firm's TrackSmart database. Id. at 7. On August 29, 2014, after two complaints by Jackson about the purported FLSA violations, Kenneth Haynes discharged Jackson. Doc. 54-1 at 5-6.
The court begins its analysis with the motion for sanctions for spoliation of evidence, followed by the summary judgment motions.
The subject of defendants' spoliation motion is electronically stored information ("ESI") Jackson purportedly maintained, reflecting her arrival and departure times from work.
To keep track of her work hours, Jackson used an "Hours Tracker" application on her cell phone. See doc. 54-1 at 3. However, because Jackson used a free version of the application, she could not export the data electronically. Therefore, Jackson manually transposed the information into Excel and Microsoft Word spreadsheets on her daughter's MacBook. See doc. 35-2 at 8. Jackson no longer has the cell phone, which she returned to Verizon after filing a complaint with the Department of Labor about the overtime pay and retaining counsel for this litigation. Also, Jackson's daughter allegedly denied Jackson access to the MacBook for a period of time, during which the information Jackson inputted into Excel and Microsoft Word somehow disappeared. After Jackson regained access to the MacBook, she took it to the Apple Genius Bar, where store personnel were unable to recover the data. See doc. 38-6 at 3. However, sometime before her daughter denied her access to the MacBook, Jackson apparently printed copies of the data and is seeking to use her printouts to prove her claims in this lawsuit. This failure to preserve the original data is the basis for the motion for sanctions.
Spoliation is the "failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation." Oil Equip. Co. v. Modern Welding Co., 661 F. App'x 646, 652 (11th Cir. 2016) (internal quotation marks omitted). Federal Rule of Civil Procedure 37(e), which governs a party's failure to preserve electronic evidence, states that:
Fed. R. Civ. P. 37(e).
Although Jackson concedes that she had a duty to preserve the ESI, she contends that she took "reasonable" steps to preserve it and that defendants have not proven that the ESI cannot be restored or replaced through additional discovery. See doc. 38 at 5-6. The court is confounded by Jackson's latter point and the related contention that defendants failed to subpoena the MacBook,
The court is also not persuaded by Jackson's contention that she took reasonable steps to preserve the ESI. Accusing an employer of violating any law is a serious allegation. To the extent evidence exists to support this contention, the employee must take reasonable and prudent steps to preserve it — a fact Jackson acknowledges. See doc. 38 at 5. Here, Jackson admits that she relinquished the phone — the source of the raw data — after retaining counsel to litigate this case. Doc. 35-2 at 9. Although Jackson claims she returned the phone to Verizon because she "had already downloaded or wr[itten] down the information,"
As a sanction, defendants ask the court to impose a default judgment or to issue an "adverse inference instruction" regarding the ESI. Doc. 35 at 15. However, Rule 37(e) limits these severe sanctions to situations where a party "acted with the intent to deprive another party of the information's use in the litigation." Being "negligent and irresponsible in maintaining the information" and "know[ing] of her obligation to preserve the integrity of the information," see doc. 35 at 14-15, are not sufficient to show an intent to deprive defendants of the information to warrant the severe sanctions defendants seek. Accordingly, the motion for sanctions is due to be denied. Instead, consistent with the directive that it "order measures no greater than necessary to cure the prejudice," Fed. R. Civ. P. 37(e), and the Federal Rules of Evidence, the court will analyze the printouts under standard evidentiary rules in evaluating the motions for summary judgment.
The court has for consideration two separate motions for summary judgment: one by Kenneth Haynes and Haynes & Haynes P.C., doc. 43, and the other by Alicia Haynes, doc. 48. The court examines the motions separately below.
Kenneth Haynes and Haynes & Haynes raise various grounds in support of their motion: (1) that they properly classified Jackson as "nonexempt" and paid her all the overtime due; (2) that no private right of action exists for a recordkeeping violation under the FLSA; and (3) that Jackson cannot prove pretext on her retaliation claim.
Jackson alleges that defendants improperly classified her as an "exempt" employee and failed to pay her for all the overtime hours she worked. Although the parties bicker over whether defendants actually classified Jackson as "exempt," the parties' disagreement centers primarily on the number of overtime hours Jackson worked. Indeed, Jackson concedes that defendants paid her at least some overtime compensation, and is primarily challenging the failure to pay her for all of the overtime she claims she worked. Relevant here, defendants' records show that Jackson worked 162.71 hours, including 5.83 overtime hours, see doc. 44-1 at 13-14, and Jackson claims that she worked 182.75 hours, including 22.75 overtime hours, see doc. 45-7 at 11. To support her position, Jackson relies on the printout of the summaries she independently created of the Hours Tracker data and for which, to date, she has not successfully recovered the metadata from the MacBook. See doc. 44-2 at 2, 10-11. Jackson maintains that she "created" these summaries from "information generated by and electronically stored on her phone." Doc. 47 at 22. Although the Federal Rules of Evidence allow a party to produce large volumes of data in the form of a summary in certain circumstances, "[t]he proponent must make the originals or duplicates available for examination . . . ." See Fed. R. Evid. 1006. As defendants note, however, the data upon which the summaries are based is "no longer available to [Jackson] and has not been produced to Defendants." Doc. 47 at 22. Absent the original ESI or duplicates thereof, Jackson cannot rely upon these summaries to rebut defendants' contention that they fully compensated Jackson for her regular and overtime hours. See U.S. v. Arias-Izquierdo, 449 F.3d 1168, 1184 (11th Cir. 2006) ("[O]ther parties to the case must be provided the original records upon which the summary is based — or duplicates of those originals — prior to the admission of the summary.").
Next, Jackson seeks equitable relief due to defendants purportedly "misclassif[ying] [her] as `exempt' and fail[ing] to keep accurate records of the hours [she] worked in violation of the FLSA . . . ." Doc. 1 at 15. As defendants correctly point out, no private right of action exists for such a claim. See Powell v. Florida, 132 F.3d 677, 678 (11th Cir. 1998) ("[W]e follow the decisions of the other circuits which have held that the plain language of the [FLSA] provides that the Secretary of Labor has the exclusive right to bring an action for injunctive relief."). Although Jackson acknowledges that "prior FLSA case law is against [her] on this issue," doc. 56 at 19, she asks the court to consider other potential vehicles for relief, including the All Writs Act, 28 U.S.C. § 1651(a), Section 2 of Article III of the United States Constitution, and the Declaratory Judgment Act, 28 U.S.C. § 2201, id. at 20. The court declines to do so in light of Powell, and finds that the motion as to Count II is also due to be granted.
Lastly, Jackson alleges that defendants discharged her in retaliation for her complaints. Doc. 1 at 20. Where, as here, Jackson has presented no direct evidence of retaliation, the court "must employ the burden-shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L. Ed. 2d 668 (1973), to analyze [her] retaliation claim." Jones v. Gulf Coast Health Care of Del., L.L.C., 854 F.3d 1261, 1271 (11th Cir. 2017). "Under the McDonnell Douglas framework, the plaintiff must first establish a prima facie case by demonstrating (1) she engaged in statutorily protected activity, (2) she suffered an adverse employment decision, and (3) the decision was causally related to the protected activity." Schaaf v. Smithkline Beecham Corp., 602 F.3d 1236, 1243 (11th Cir. 2010). If Jackson can establish a prima facie case, then the burden shifts back to defendants to articulate a legitimate, nonretaliatory reason for Jackson's discharge. Finally, if defendants meet this burden, then Jackson must show that the proffered reason(s) were pretext designed to mask retaliation.
Jackson's claim fails because she cannot show that defendants' alleged desire to retaliate was the but-for cause of her discharge. See Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2528 (2013) ("Title VII retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment action."). In fact, Jackson testified to a number of reasons for her discharge that had no connection to her purported protected activity.
Alternatively, even if Jackson can establish a prima facie case, her claim fails because she cannot rebut each of the legitimate, nonretaliatory reasons for her discharge. Among other reasons, Kenneth Haynes asserts that he came to distrust Jackson after speaking with her former employer (at Jackson's request)
To show pretext, Jackson cites, in part, a letter Kenneth Haynes sent to Jackson's placement agency following her discharge in which Mr. Haynes stated that "Ms. Jackson represented in her new hire documents that she had never been arrested." Doc. 54-3 at 14. See also id. ("I terminated Edna Jackson last Friday for misrepresenting to us that she had never been arrested."). Jackson says this reason is false, because Kenneth Haynes later acknowledged that the employment application asked only whether Jackson had been "convicted" of a crime, see doc. 54-3 at 7, and that "it [was not] true that [he] terminated Edna Jackson for misrepresenting to Haynes & Haynes, P.C. that she had never been arrested," see doc. 56 at 13. Jackson's focus on the arrest ignores the rest of the letter where Kenneth Haynes identified other reasons for his decision that are consistent with his testimony in this case — i.e., the report from Jackson's former employer that Jackson "had written a number of checks to herself that were not authorized." Doc. 54-3 at 14. While Mr. Haynes stated in the letter to the placement agency that the allegations against Jackson were "unfounded," he noted also that the allegations "caused some degree of concern." Id. Mr. Haynes also testified that, "whether [the former employer owed Jackson money] or not, . . . that was bad judgment on [Jackson's] part to [write the checks out of the employer's account]." Doc. 54-3 at 6. When viewed as a whole, Kenneth Haynes's letter sufficiently described the concerns he had about Jackson and is mostly consistent with his testimony in this case. Therefore, Jackson's reliance on this letter to show pretext is unavailing.
Ultimately, Jackson cannot show pretext due to her failure to produce any evidence showing that Kenneth Haynes did not sincerely believe that Jackson was untrustworthy in light of the reports he received, including Jackson's admission to Mr. Haynes that her text messages to "Katie" about a funeral were untrue. See Morgan v. Orange Cnty., 477 F. App'x 625, 628 (11th Cir. 2012) ("[I]f the employer acted on an honestly held belief that the employee engaged in misconduct, even if it was mistaken, no retaliation exists."). See also Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991) ("We can assume for purposes of this opinion that the complaining employees interviewed by [the decisionmaker] were lying through their teeth. The inquiry . . . is limited to whether [the decisionmaker] . . . believed that [plaintiff] was guilty of [of the alleged conduct], and if so, whether this belief was the reason behind [plaintiff's] discharge.") (emphasis in original). Based on this record, Jackson has failed to demonstrate that Kenneth Haynes's distrust of Jackson in light of the reports of the former employer is a "false" reason. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993) ("[A] reason cannot be proved to be a pretext for [retaliation] unless it is shown both the reason was false, and that [retaliation] was the real reason.") (emphasis and internal quotation marks omitted). Therefore, because Jackson has failed to rebut all of defendants' proffered reasons for her discharge — in particular, Kenneth Haynes's contention that he discharged Jackson because he found her untrustworthy due to reports he believed that challenged her trustworthiness, Kenneth Haynes' and Haynes & Haynes's motion as to Count III is due to be granted. See Crawford v. City of Fairburn, 482 F.3d 1305, 1308 (11th Cir. 2007) (Where "the employer proffers more than one legitimate, non[retaliatory] reason, the plaintiff must rebut each of the reasons to survive a motion for summary judgment.") (emphasis added).
Jackson alleges that Alicia Haynes violated the FLSA's overtime provisions by capping Jackson's paid hours at 40 per week. See doc. 1 at 5. To support her claim, Jackson cites a specific occasion when Ms. Haynes informed Jackson by a text message that sending a work-related email after hours "creates an overtime violation for [Ms. Haynes]." See doc. 49-1 at 6. Jackson undisputedly was not paid for sending the email or communicating with Ms. Haynes about it via text messages. See doc. 59 at 7-8 (Alicia Haynes arguing only that "the time spent sending this e-mail is de minimis"). However, "[w]hen the matter in issue concerns only a few seconds or minutes of work beyond the scheduled working hours, such trifles may be disregarded . . . . It is only when an employee is required to give up a substantial measure of his time and effort that compensable working time is involved." Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 692 (1946). For this reason, and because, as discussed in Part III.B.1.a, supra, Jackson has produced no other admissible evidence to contradict defendants' records of her work hours or that they paid her the overtime due, Alicia Haynes's motion is also due to be granted as to Count I.
Because, as discussed in Part III.B.1.b, supra, there is no private right of action for an FLSA recordkeeping violation, Alicia Haynes's motion is due to be granted as to Count II.
Finally, because Jackson has presented no evidence that Alicia Haynes played any role in her discharge, see doc. 49-3 at 10 (Q: "Do you have any knowledge of any communications Kenny Haynes had with Alicia Haynes about the decision to terminate you?"; A: "I don't have any knowledge of any, no."), and because, as discussed in Part III.B.1.c, supra, Jackson has failed to show that each of Kenneth Haynes's proffered reasons for discharging Jackson are false, Alicia Haynes's motion is also due to be granted as to Count III.
For the reasons stated above, the motion for sanctions, doc. 35, is due to be denied, and the motions for summary judgment, docs. 43 & 48, are due to be granted. Therefore, Jackson's remaining claims (Counts I, II, and V) are due to be dismissed. The court will enter a separate order consistent with the foregoing.
