JOHN H. ENGLAND, III, Magistrate Judge.
Plaintiff Roderick Holt ("Holt" or "Plaintiff") brought this action on April 27, 2017, against Defendant Jefferson County Committee for Economic Opportunity ("JCCEO" or "Defendant"), alleging JCCEO violated the Fair Labor Standards Act ("FLSA") by failing to pay him overtime compensation. (Doc. 1). JCCEO now moves for summary judgment. (Doc. 17). Holt opposes the motion. (Doc. 21). JCCEO has filed a reply in support. (Doc. 24). JCCEO has also moved to strike evidentiary material Holt has submitted with his response in opposition to the motion for summary judgment, (doc. 25), which Holt opposes, (doc. 28). Both motions are fully briefed and ripe for review. For the reasons stated more fully below, both motions are
Under Rule 56(a) of the Federal Rules of Civil Procedure, 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, 447 U.S. 317, 322 (1986). The moving party bears the initial burden of proving the absence of a genuine issue of material fact. Id. at 323. The burden then shifts to the nonmoving party, who is required to "go beyond the pleadings" to establish that there is a "genuine issue for trial." Id. at 324. (citation and internal 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 255 (all justifiable inferences must be drawn in the non-moving party's favor). Any factual disputes will be resolved in Plaintiff's favor when sufficient competent evidence supports Plaintiff's version of the disputed facts. See Pace v. Capobianco, 283 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 the 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) (per curiam) (citing Bald Mtn. Park, Ltd. v. Oliver, 836 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 the 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).
As noted above, JCCEO objects to evidence Holt relies on in opposition to its motion for summary judgment. (Doc. 25). In addition, it objects in its reply to "self-serving statements" by Holt describing his job duties. (Doc. 24 at 6). In his response, Holt raises an evidentiary objection to an affidavit submitted by JCCEO. (See doc. 21 at 26-28).
With the December 1, 2010 rules change to Rule 56 of the Federal Rules of Civil Procedure, motions to strike submitted on summary judgment are no longer appropriate. Revised Rule 56(c)(2) provides that "[a] party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence." The Advisory Committee Notes specify as follows:
FED. R. CIV. P. 56, Adv. Comm. Notes, "Subdivision (c)" (2010 Amendments). "Before this amendment, parties properly challenged evidence used in a summary judgment motion by filing a motion to strike. The plain meaning of these provisions show that objecting to the admissibility of evidence supporting a summary judgment motion is now a part of summary judgment procedure, rather than a separate motion to be handled preliminarily." Campbell v. Shinseki, 546 F. App'x 874, 879 (11th Cir. 2013).
JCCEO specifically objects to three related exhibits to Holt's summary judgment response: (1) sign in/sign out sheets filled out by Holt during his employment, (doc. 22-4); (2) a spreadsheet summarizing those sheets, (doc. 22-5); and (3) the Declaration of Brooke Henderson and attached chart quantifying the data from the sheets, (doc. 22-11).
Under Federal Rule of Evidence 401, "evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence and (b) the fact is of consequence in determining the action." FED. R. EVID. 401. Since the facts in this action revolve around Holt's allegedly uncompensated overtime, the times Holt got to work and left work are relevant. Holt testified he signed in on the sheets at the beginning of the day and out at the end of the day, not signing out for eating lunch or any other purpose in between. (Doc. 20-2 at 29 (109:4-112:12)). Regardless of whether the sheets are a perfect record of the hours Holt spent actually working, the sheets are probative of the hours Holt spent at work. Additionally, under the law of this circuit, in the absence of accurate time records from JCCEO,
Allen v. Bd. of Pub. Educ. for Bibb Cty., 495 F.3d 1306, 1315-16 (11th Cir. 2007). Thus, the sheets are relevant — and admissible — to the extent they provide a basis for the inference Holt worked overtime.
To the extent JCCEO states the sheets are unreliable, whether the sheets are accurate or not is an issue of weight, not admissibility. See Crompton-Richmond Co., Factors v. Briggs, 560 F.2d 1195, 1202 n.12 (5th Cir. 1977) (an argument premised on the "inaccuracy and incompleteness" of records is an attack on weight, not admissibility).
In addition to its motion to strike, JCCEO "objects to portions of Holt's Statement of Facts to the extent that they include self-serving statements about what Holt claimed he was doing in the performance of his job," which it contends are irrelevant and immaterial. (Doc. 24 at 6). JCCEO does not support this objection with any authority, and in any event the court may not disregard testimony at summary judgment simply because it is self-serving. See Feliciano v. City of Miami Beach, 707 F.3d 1244, 1253 (11th Cir. 2013) (stating, with respect to self-serving statements by the plaintiff, "[a]s a general principle, a plaintiff's testimony cannot be discounted on summary judgment unless it is blatantly contradicted by the record, blatantly inconsistent, or incredible as a matter of law, meaning that it relates to facts that could not have possibly been observed or events that are contrary to the laws of nature."). JCCEO's objection to Holt's description of his job duties is
Holt contends JCCEO should be precluded from relying on the affidavit of Brenda Singgellos ("Singgellos"), (doc. 20-1) (the "Singgellos Affidavit"), JCCEO's current Human Resources Director, because it did not disclose her as a witness during discovery. (Doc. 21 at 26-28). Holt contends JCCEO's failure to disclose Singgellos deprived him of the opportunity to take her deposition. (Id. at 27-28). JCCEO responds that Singgellos was not included in its initial disclosures because she had not been hired at the time, and once she became employed by JCCEO she executed the answers to Holt's interrogatories on behalf of JCCEO. (Doc. 24 at 3-4). Consequently, it states Holt cannot have been surprised by Singgellos's affidavit, nor did he lack an opportunity to depose her. (Id. at 15).
Federal Rule of Civil Procedure 26(a)(1)(A)(i) requires parties to disclose "the name and, if known, the address and telephone number of each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment[.]" That duty does not end after initial disclosures have been served, because each party is required to supplement its initial disclosures "if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing[.]" FED. R. CIV. P. 26(e). A party who "fails to provide information or identify a witness as required by Rule 26(a) or (e) . . . is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless." FED. R. CIV. P. 37(c). The non-disclosing party bears the burden of establishing the justification for or harmlessness of its failure to disclose. Mitchell v. Ford Motor Co., 318 F. App'x 821, 824 (11th Cir. 2009) (citing Leathers v. Pfizer, Inc., 233 F.R.D. 687, 697 (N.D. Ga. 2006)).
Since Singgellos was not employed by JCCEO at the time of its initial disclosures, whether JCCEO may rely on her affidavit turns on whether it shirked its duty to supplement its initial disclosures under Rule 26(e). JCCEO's discovery responses, signed by Singgellos as "Human Resources Director of Jefferson County Committee for Economic Opportunity" and accompanied by a certificate of service dated October 16, 2017, (doc. 22-6 at 15-16), resolve this issue. Singgellos was not a surprise witness. Holt was on notice from the date of JCCEO's discovery responses that Singgellos likely possessed information about the information included in those responses, including the duties of its employees (the substance of Singgellos's affidavit, as discussed further below). See Chadwick v. Bank of Am., N.A., 616 F. App'x 944, 948 (11th Cir. 2015) (no error when district court considered affidavit of defense witness not explicitly disclosed during discovery when witness verified responses to defendant's interrogatories). Further, discovery closed in this matter on February 15, 2018, four months after the date of service of the discovery responses. (Doc. 12). Holt had ample time to depose Singgellos if he had wanted to do so.
JCCEO is an organization that provides five main services in Jefferson County, Alabama: children's Head Start, home weatherization, adult day care, energy assistance, and financial literacy. (Doc. 20-3 at 19 (70:1-72:6)).
Holt was initially hired by JCCEO in 2009 as a driver/janitor. (Doc. 20-2 at 6 (20:11-21)). In that role, Holt was responsible for the janitorial issues at the JCCEO headquarters building and drove a school bus, transporting children to and from JCCEO headquarters. (Id. at 6-7 (20:16-21:13)). As a driver/janitor, Holt was paid $8.00 per hour. (Id. at 7 (22:22-23:1)).
In February 2010, Holt was promoted to Assistant Transportation Manager, also an hourly position. (Id. (23:2-5); doc. 20-3 at 24 (95:3-16)). Holt remained in that position for approximately three years. (Doc. 20-1 at 9 (31:3-6)). As Assistant Transportation Manager, Holt reported to the Transportation Manager. (Id. at 14 (49:8-12); doc. 20-4 at 11 (38:13-39:6)). For approximately the last year of Holt's time as Assistant Transportation Manager, Holt reported to Transportation Manager Ellis Fowler, who had taken the position on a temporary basis following the previous Transportation Manager's demotion. (Doc. 20-2 at 10-11 (36:2-37:13); doc. 20-4 at 11 (38:13-39:6)). Holt's duties as Assistant Transportation Manager required him to drive a school bus or van almost every day, covering other drivers who had called in sick or could not come in to work. (Doc. 20-2 at 9 (31:7-32:11)).
On January 21, 2016, after JCCEO posted the Transportation Manager position to be filled on a permanent basis, Holt sent a letter to JCCEO's Human Resources Department stating his qualifications and interest in the position. (Doc. 20-2 at 18 (66:10-22), 61).
On May 12, 2016, Holt was offered the Transportation Manager position. (Doc. 20-2 at 56-57). JCCEO's offer letter states "this position is Exempt status at a salary of $28,500 annually," (id. at 56). At the time of the offer, Randi Clark ("Clark"), who was Human Resources Director for JCCEO from August 2014 to October 1, 2017 (and who had prepared the offer letter), met with Holt and explained that the position was salaried and exempt. (Doc. 20-3 at 27-28 (104:20-105:4)). However, Holt testified he was quoted an hourly rate of $13.81 for the position, (id. at 12 (43:11-22), 13 (47:3-48:8)). Clark also explained to Holt that the position was not eligible for overtime, but that he could accrue "comp time,"
JCCEO's written job qualifications for Transportation Manager are:
(Doc. 20-1 at 5). Since Holt lacked an associate's degree, Clark told him that JCCEO would pay for the cost of his education; following the completion of his associate's degree, Holt would receive a substantial salary increase. (Doc. 20-3 at 12 (41:17-42:12)).
As Transportation Manager, Holt filled out timesheets on a biweekly basis. (Doc. 20-2 at 27 (103:1-11)). When he had been Assistant Transportation Manager, Holt had made several claims for overtime by reporting additional hours on his timesheet and had been paid for those claims. (Id. at 35 (134:16-135:23)). Holt was subsequently told that he could not ask to be paid for overtime that had not been pre-approved and should not record unapproved overtime on his timesheet. (Id. 35-36 (136:1-138:9)). Nevertheless, Holt continued to work overtime without pre-approval — for example, when driving a route and the work ran long — and did not submit claims for overtime because he had not received pre-approval. (Id. at 35 (136:7-17)). Holt generally indicated on his Transportation Manager timesheets that he worked eight hours per day, unless he had worked fewer hours. (Id. at 28 (106:10-107:21)). However, Holt testified he normally worked "maybe nine, ten" hours per day. (Id. at 28-29 (108:21-109:3)). In addition to his timesheet, Holt kept a log of when he arrived at work and when he left work on sign-in sheets, although these would not necessarily account for when Holt left the building between the sign-in and sign-out times. (Doc. 20-2 at 29 (109:4-112:12)).
As Transportation Manager, Holt reported to John Woods ("Woods"), JCCEO's Director of Transportation. (Doc. 20-4 at 5 (14:3-11), 7 (22:2-13)). Woods, also a salaried employee, would also only put eight hours on his timesheet no matter how many additional hours he worked. (Doc. 20-4 at 14-15 (52:5-54:5)). Woods explained that he had been trained to do this by his former supervisor. (Id. at 15 (54:6-55:10)). Woods testified he believed Holt arrived to work every day at around 6:00 or 6:30 a.m. and would work until 3:00 or 3:30 p.m. (Id. at 8 (28:7-15)).
The JCCEO employee handbook states: "[n]on-exempt employees will be paid overtime at one and one-half times the regular rate for all hours worked in excess of their normal paid hours . . . within a regular work week. Prior written approval by the supervisor and Division Director must be obtained, as well as verification from the accounting department that funds are available before the over-time is worked." (Doc. 22-3 at 2). Woods was not sure of the process an employee would use to receive overtime pay if the employee had worked more than forty hours per week but had not obtained prior approval. (Doc. 20-4 at 31-32 (120:22-121:15)). Clark testified employees would be paid for unapproved overtime, but it would be up to managers to inform employees they needed approval prior to working more than forty hours per week. (Doc. 20-3 at 3 (8:11-16), 13 (45:13-47:6)). Frank Wright ("Wright"), who oversaw JCCEO's Human Resources Department from March 2017 until the end of May 2017, testified workers would be paid for approved overtime; he did not know whether unapproved overtime would be paid, but "[t]hat never happened while I was there." (Doc. 22-2 at 4 (9:10-17), 7 (21:12-15)).
The Transportation Manager job description consists of the following:
(Doc. 20-1 at 6-7). Additionally, the Singgellos Affidavit lists a number of responsibilities and characteristics of the Transportation Manager position. (Doc. 20-1). Notwithstanding this, Holt testified his duties did not change when he transitioned from Assistant Transportation Manager to Transportation Manager. (Doc. 20-2 at 39 (149:2-6)). Holt did not have an Assistant Transportation Manager during his time as Transportation Manager. (Doc. 21-1 at ¶ 7).
JCCEO employed four to five van drivers and seven or eight bus drivers. (Doc. 20-2 at 14 (51:20-23)). Drivers split their duties between driving and janitorial work; drivers would drive their routes at the beginning and the end of the day but would do janitorial work in between. (Doc. 20-2 at 22 (83:23-84:17); doc. 20-3 at 7 (21:1-6)). Each driver was assigned to a specific center, and the driver would report directly to their center manager (who was responsible for evaluating the drivers) while performing janitorial work.
If a driver called in sick, Holt would try to find a replacement driver; otherwise, he would have to drive the route for the absent driver. (Doc. 20-2 at 12 (41:1-8), 15 (53:12-55:15)). This happened almost every day; a minimum of three days per week. (Id. at 21 (79:18-80:20); doc. 22-1 at ¶ 3). Although Holt attempted to find replacement drivers, he had no power to require a driver to come in and cover a shift if the driver did not want to work. (Doc. 22-1 at ¶ 11).
In addition to driving, Holt's duties included performing work on the vehicles, such a changing light bulbs, fuses, and wiper blades, checking transmission fluid and oil levels, vehicle inspections, and checking tire wear. (Doc. 20-2 at 12 (41:11-16); doc. 20-4 at 21-22 (79:21-80:2), 25 (95:22-96:11)). Maintenance staff could also perform these duties, but Holt did not generally take advantage of them because he wanted to do the job himself. (Doc. 20-4 at 24 (89:1-90:18)).
Holt also went to Sam's Club to purchase items for the vending machines or issuing office supplies, kept the vending machines stocked, went to other locations to get documents signed or deliver documents, and picked up food from vendors. (Doc. 20-2 at 12 (42:3-14)). These were not activities Holt would ask drivers to do. (Id. at 23 (87:21-88:22)). Holt was responsible for getting the money out of the vending machine, counting the money, rolling the coins, and taking the money to the bank to get dollars. (Id. at 25-26 (96:21-97:7, 100:17-19)). The money was kept onsite and was used either to buy additional vending machine supplies or to pay for DMV reports on new drivers. (Id. at 26-27 (99:13-101:20)).
In her affidavit, Singgellos states the Transportation Manager has the authority to make suggestions and recommendations as to hiring and firing. (Doc. 20-1). However, Holt did not have the power to hire or fire employees by himself (although no one else at JCCEO had the authority to fire anyone by themselves, either). (Doc. 20-3 at 7-8 (24:22-25:12; doc. 22-2 at 12 (43:8-18)). Holt testified he was not involved in interviewing applicants as Transportation Manager.
Clark testified Holt (like any other JCCEO employee) had "[n]ot a lot" of ability to exercise discretion and independent judgment; everything had to go through a collaborative process that began by bringing an issue to leadership. (Doc. 20-3 at 12-13 (44:3-45:12)). Asked about Holt's discretionary functions, Wright could only point to "deciding . . . whether every vehicle . . . that went on the road carrying children, other employees, staff people, whatever the case was, was absolutely up to date on all the maintenance, all safety, all required items, all of those sorts of things." (Doc. 22-2 at 12 (41:4-44:23)).
The Finance Department — not Holt — set the budget for the transportation department, although Holt could go to his supervisor (Woods) for additional expenditures he needed to make; Woods would then go to the Head Start director to see if there were funds in the budget for the expenditure. (Doc. 20-4 at 11-12 (39:23-40:41:3)). If a bus had a mechanical problem, Holt would take a new bus to the site of the breakdown and ensure the malfunctioning bus was towed to the shop or repaired. (Doc. 20-2 at 15-16 (57:16-59:7)). Holt would decide where to send the vehicle, but JCCEO had specific vendors it used for specific repairs. (Id. at 19-20 (72:20-73:20)). Holt could authorize small repairs, but he would generally have to get approval from his supervisor for repairs over about $500, and certainly above $1,000. (Id. at 16-17 (60:20-61:16), 18 (65:13-66:2)).
Holt's complaint alleges, in a single count, that JCCEO failed to pay him overtime in violation of the FLSA, despite the fact that he worked in excess of forty hours per week, and misclassified him as an exempt employee. (Doc. 1 at ¶¶ 18-21). JCCEO argues it is entitled to judgment as a matter of law because (1) Holt cannot show a willful violation of the FLSA, as he alleges in his complaint, (doc. 19 at 11-15); (2) no evidence supports JCCEO knew of any FLSA violations (id. at 15); and (3) Holt was properly classified as an exempt employee, (id. at 16-18). (Doc. 19). Because the exemption issue is potentially dispositive, and because the first issue is informed to some extent by the second, the undersigned addresses these in reverse order.
The FLSA exempts several categories of employees from FLSA coverage. See 29 U.S.C. § 213. "Whether an employee meets the criteria for an FLSA exemption, although based on the underlying facts, is ultimately a legal question." Pioch v. IBEX Eng'g Servs., Inc., 825 F.3d 1264, 1268 (11th Cir. 2016). The employer bears the burden of demonstrating that an exemption applies, and exemptions are construed narrowly against the employer. Id. While position descriptions and titles are relevant, they are not determinative; whether an employee is exempt or nonexempt depends on the duties actually performed by the employee, and the regulations require an examination of those specific duties. See Wagner v. Murphy Oil USA, Inc., 139 F. App'x 131, 132 (11th Cir. 2005); 5 C.F.R. § 551.202. "[E]xtend[ing] an exemption to other than those plainly and unmistakably within its terms and spirit is to abuse the interpretative process and to frustrate the announced will of the people." Id. (quoting A.H. Phillips, Inc. v. Walling, 324 U.S. 490, 493 (1945)).
JCCEO claims Holt is exempt under the FLSA's executive exemption and the administrative exemption. (Id. at 16-18). Preliminarily, JCCEO's argument the two exemptions apply is to recite the regulatory requirements and then state, without elaboration, that its "evidentiary submission" shows the requirements are satisfied. (Doc. 19 at 16-18). These bald pronouncements, which JCCEO expands upon only in its reply brief (though still failing to cite to any particular evidence within the whole of its "factual submission," (see doc. 24 at 13)), fall short of discharging JCCEO's burden to show that an exemption applies. See Herring v. Sec'y, Dep't of Corr., 397 F.3d 1338, 1342 (11th Cir. 2005) ("arguments raised for the first time in a reply brief are not properly before a reviewing court."). Alternatively to JCCEO's failure to meet its burden, though, it is not entitled to summary judgment on either exemption, as discussed below.
Although the FLSA generally requires that an employee receive overtime pay if he or she works more than forty hours per week, it exempts "any employee employed in a bona fide executive . . . capacity." 29 U.S.C. §§ 207(a)(1), 213(a)(1). Under the relevant regulations, an exempt executive employee is one:
29 C.F.R. § 541.100. "Summary judgment based on the executive exemption is appropriate only where the four prongs of the `executive exemption' test are met as a matter of law." Barreto v. Davie Marketplace, LLC, 331 F. App'x 672, 678 (11th Cir. 2009). The first element of the executive exemption is not in dispute, but Holt contests JCCEO has met its burden to demonstrate each of the three remaining elements. (Doc. 21 at 25-26).
First, Holt states JCCEO cannot establish his primary duty was management. (Doc. 21 at 25). JCCEO's attempt to do this is, apparently, the Singgellos Affidavit, in which Singgellos states: "The Transportation Manager's primary duty is management of JCCEO's Transportation Department. This is the principal, main major [sic] and most important duty that the Transportation Manager performs. The Transportation Manager spends well over 50% of his or her time performing this primary duty, and is relatively free from direct supervision in performing the primary duty." (Doc. 20-1 at ¶ 11). Singgellos goes on to list a variety of these duties: interviewing for vacant positions; training staff; directing the work of Transportation Department employees; evaluating the work of Transportation Department employees; maintaining records related to the operation of the Transportation Department; planning the work of Transportation Department employees; determining the techniques used by Transportation Department employees; apportioning work among the Transportation Department employees; determining the type of materials, supplies, machinery and equipment to be used or merchandise to be bought, stocked, and sold; controlling the flow and distribution of materials, merchandise and supplies; providing for the safety and security of the Transportation Department's employees; and monitoring or implementing legal compliance. (Id. at ¶ 12). The problem for JCCEO is that these are nearly word-for-word recitations of the regulations explaining an employee's primary duty, (compare doc. 20-1 at ¶ 11 with 29 C.F.R. § 541.700), and defining "management," (compare doc. 20-1 at ¶ 12 with 29 C.F.R. § 541.102). These are simply legal conclusions, not facts supporting summary judgment, and they are inadequate to establish Holt's primary duty was management.
Holt states it is undisputed that he did not "customarily and regularly direct[] the work of two or more other employees." (Id. at 25). In its reply, JCCEO states (without citing any specific evidence) Holt was responsible for supervising the drivers and shared that supervisory responsibility with the Center Managers. (Doc. 24 at 13). As JCCEO notes, shared supervisory responsibility can suffice for directing work. See 29 C.F.R. § 541.104(b). However, the evidence conflicts as to whether Holt actually exercised any degree of supervision over drivers other than the "floater" who reported directly to him, (doc. 20-2 at 23 (87:10-20); doc. 20-4 at 7 (21:5-17)). Although Singgellos states, as a general matter, the Transportation Manager was responsible for directing two or more other employees including drivers, (doc. 20-1 at ¶ 4), Holt testified the drivers did not check in with him and would only approach him when they needed something from him, in which case he would issue the needed supplies. (Doc. 20-2 at 18 (68:2-14), 22-23 (84:18-85:12)). Further, Holt did not have the power to require a driver to come in if the driver did not want to work, (doc. 22-1 at ¶ 11), and there is conflicting evidence as to whether Holt had any degree of responsibility for evaluating the drivers. (Compare doc. 20-3 at 7 (21:21-22:8) (Clark's testimony that driver evaluations were "supposed to be in conjunction" with the Transportation Manager) with (doc. 20-2 at 18-19 (68:19-69:6) (Holt's testimony that he was not involved in driver evaluations)). Wright explicitly testified Holt did not have two direct reports. (Doc. 22-2 at 11 (43:17-18)). Considering the evidence in the light most favorable to Holt, the evidence does not bear out Holt's supervisory responsibilities for two or more drivers.
Finally, Holt states he lacked the authority to hire and fire. (Doc. 21 at 25). JCCEO responds that "the undisputed evidentiary support for [its] Motion" shows that Holt's suggestions and recommendations as to hiring and firing were given particular weight, which is sufficient under the 29 C.F.R. 541.105 even if a higher-level manager had the ultimate power to hire and fire. (Doc. 24 at 13-14). Again, JCCEO appears to rely primarily on the Singgellos Affidavit, which, again, largely parrots the regulation. (Compare doc. 20-1 at ¶ 14 with 29 C.F.R. § 541.100). Singgellos does venture further than the regulation by stating that the Transportation Manager frequently makes suggestions and recommendations with respect to "hiring, firing, advancement, promotion or other changes of status of other employees in the Transportation Department . . . and at least annually, as part of the performance review of each employee working in the Transportation Department." (Doc. 20-1 at ¶ 14). However, there is no evidence in the record to suggest Holt ever made any recommendation at all with respect to "hiring, firing, advancement, promotion or other changes of status," and nor is there any evidence that Holt ever participated in an annual performance review. To the contrary, Holt testified he was not involved in interviewing applicants, (doc. 20-2 at 19 71:6-10)), nor in driver reviews, (id. at 18-19 (68:19-69:6)).
Factual disputes exist as to the second, third, and fourth elements of the executive exemption. JCCEO is not entitled to summary judgment as to its applicability.
JCCEO also contends the administrative exemption applies to Holt. (Doc. 20 at 17-18). Holt argues JCCEO has waived the right to argue the FLSA's administrative exemption (which JCCEO relies on in its motion for summary judgment, (see doc. 19 at 17-18)) applies, as the defense was "neither pleaded nor completely disclosed in discovery." (Doc. 21 at 26-28). Holt says JCCEO did not include the defense in its answer or its interrogatory responses and has failed to amend its answer or supplement its discovery responses to include the defense. (Doc. 21 at 26).
In its answer, JCCEO's eleventh defense is that "Plaintiff was an exempt employee, per agreement of the parties, the provisions of the FLSA and/or the applicable interpretive caselaw." (Doc. 5 at 4). JCCEO claims this is sufficient to invoke the administrative exemption. (Doc. 24 at 11). However, "[u]nder Rule 8(c) of the Federal Rules of Civil Procedure, a claim of exemption is an affirmative defense that must be specifically pled or it will be deemed waived." Sejour v. Steven Davis Farms, LLC, 28 F.Supp.3d 1216, 1224 (N.D. Fla. 2014). The general invocation of exemptions under the FLSA in JCCEO's answer does not meet this standard. See id.; Morrison v. Exec. Aircraft Refinishing, Inc., 434 F.Supp.2d 1314, 1318 (S.D. Fla. 2005) (a defendant's claim that a plaintiff is "not covered" under the FLSA is inadequate under Rule 8(c)).
Further, when asked through Holt's Interrogatory 1 to "[s]tate each and every legal theory and supporting fact on which Defendant relies in asserting that Plaintiff was not entitled to overtime pay under the FLSA, including, but not limited to, the specific exemption(s) on which Defendant relies," JCCEO identified only "the executive/managerial exemption, 29 U.S.C. Section 213(a)(1)." (Doc. 22-6 at 3). Although JCCEO contends its reference to the statute is sufficient because § 213(a)(1) covers both the executive and the administrative exemptions, its response is inconsistent with this characterization. JCCEO does not explain why it specifically listed the executive exemption and not the administrative exemption. Additionally, the remainder of its response discusses the requirements in 29 C.F.R. § 541.100, which is exclusively about the executive exemption, with no mention of the administrative exemption requirements contained in 29 C.F.R. § 541.200. (Doc. 22-6 at 3). JCCEO's interrogatory response does nothing to adequately identify the administrative exemption.
The question now becomes what to do with JCCEO's deficient answer and failure to supplement its discovery to include its intention to rely on the administrative exemption. The Eleventh Circuit has stated Rule 8(c) is primarily concerned with whether the plaintiff has notice that a defense will be raised at trial. See Hassan v. U.S. Postal Serv., 842 F.2d 260, 263 (11th Cir. 1988). Based on this, it has frequently held affirmative defenses are not waived when a plaintiff has notice of the affirmative defense or was not prejudiced by lack of notice. See Proctor v. Fluor Enterprises, Inc., 494 F.3d 1337, 1350 (11th Cir. 2007) (collecting cases).
Here, two JCCEO employee witnesses testified specifically about the administrative exemption, and Holt's counsel questioned them extensively about it. Under questioning by Holt's counsel at a January 18, 2018 deposition, Wright explained that he believed Holt met the administrative exemption. (Doc. 22-2 at 11-12 (39:6-44:23)). Holt's counsel explored this belief by going through the criteria for the administrative exemption with Wright. (Id.). Later, Holt's counsel took Clark's deposition and asked her specifically if she agreed with Wright's assessment that Holt fell into the administrative exemption. (Id. at 11 (39:21-40:9)). Holt's counsel then questioned Clark, in detail, about criteria relevant to the administrative exemption. (Id. at 11-13 (40:9-45:12)). Based on the facts that Holt has been on notice since at least January 18, 2018 that the administrative exemption was relevant to this case, that JCCEO likely intended to rely upon it, and that Holt had ample opportunity to explore the issue in discovery (which he seems to have used), Holt has not been prejudiced by JCCEO's failure to include the defense in its answer pursuant to Rule 8(c), or to supplement its interrogatory response to include the defense pursuant to Rule 26(e). Accordingly, neither Rule 8(c) nor Rule 37 bar JCCEO from raising the defense, and the undersigned considers it below.
The FLSA exempts employees who are "employed in a bona fide . . . administrative . . . capacity" from overtime requirements. 29 U.S.C. § 213(a)(1). Under the governing regulations, an "employee employed in a bona fide administrative capacity" means an employee:
29 C.F.R. § 541.200. Like the executive exemption, the administrative exemption is concerned with the "actual day-to-day job activities of the [employee] . . . not the labels the [employee] or the [employer] place on those duties Mutch v. PGA Tour, Inc., No. 3:04-CV-97J12TEM, 2006 WL 510068, at *4 (M.D. Fla. Mar. 2, 2006) (citing Schaefer v. Indiana Michigan Power Co., 358 F.3d 394, 400 (6th Cir. 2004); Reich v. Chicago Title Insurance Company, 853 F.Supp. 1325, 1330-31 (D. Kan. 1994)).
As stated above, JCCEO's motion only recites the criteria for the administrative exemption and states it applies. (See doc. 19 at 17-18). Unlike the executive exemption, though, JCCEO does not expand on the administrative exemption at all in its reply brief. (See doc. 24 at 14-18). Instead, it simply argues it has not waived the exemption, and that it has "more than adequately demonstrated the factual support for the application of the administrative exemption." (Id. at 16). It spends the remainder of its reply brief attacking Holt's "self-serving claims."
Assuming JCCEO intends the Singgellos Affidavit to supply its basis for the administrative exemption's application (although it never actually states it does), its argument suffers from the same flaws as its argument for the executive exemption. The Singgellos Affidavit spends paragraphs mechanically reciting the regulatory criteria for the exemption, (compare doc. 20-1 at ¶¶ 5, 7-8 with 29 C.F.R. § 541.200), portions of the regulation defining what it means to be "directly related to management or general business operations, (compare doc. 20-1 at ¶ 6 with 29 C.F.R. § 541.201(b)), and the regulation defining "discretion and independent judgment," (compare doc. 20-1 at ¶¶ 9-10 with 29 C.F.R. § 541.202(a) & (b)). Again, it never connects these legal conclusions to the actual duties Holt performed. See Wagner, 139 F. App'x at 132.
This would be enough to conclude that JCCEO has not met its burden to establish the administrative exemption applies and deny summary judgment, but there are also clear factual issues precluding summary judgment on the exemption — especially construing the exemption narrowly against the employer, as the court must, Pioch, 825 F.3d at 1268. Although the Singgellos Affidavit states Holt exercised "discretion and independent judgment," (doc. 201- at ¶ 8), the only testimony related to Holt's discretion establishes he had little. Clark testified Holt had "not a lot" of ability to exercise discretion, (doc. 20-3 at 12-13 (44:3-45:12)), and Wright could only describe Holt's discretion to keep the JCCEO fleet "up to date on all the maintenance, all safety, all required items, all of those sorts of things," (doc. 22-2 at 12 (41:4-44:23)). Although Holt could authorize small repairs, his limit appears to have been a maximum of $1,000. (Doc. 20-2 at 16-17 (60:20-61:16), 18 (65:13-66:2)). This does not support Holt had the ability to "commit the employer in matters that have significant financial impact," 29 C.F.R. § 541.202, as Singgellos recites, (doc. 20-1 at ¶ 10). The evidence reflects, at a minimum, a healthy factual dispute as to the discretion Holt employed. Accordingly, JCCEO is not entitled to summary judgment as to the administrative exemption.
An FLSA plaintiff claiming unpaid overtime is required to show (1) he worked overtime without compensation and (2) his employer knew or should have known of the overtime work. Allen, 495 F.3d at 1314-15. "An employer is said to have constructive knowledge of its employee's overtime work when it has reason to believe that its employee is working beyond his shift." Id. at 1319 (citing 29 C.F.R. § 785.11). When an employer's supervisors encourage artificially low reporting or squelch truthful reports of overtime worked, knowledge of overtime work may be imputed to the employer. Bailey v. TitleMax of Georgia, Inc., 776 F.3d 797, 801 (11th Cir. 2015) (citation omitted); Allen, 495 F.3d at 1319.
JCCEO's entire argument is a single paragraph in which it states, in conclusory fashion and without pointing to anything specific in the record, that its "evidentiary submittal affirmatively establishes that Holt did not report any alleged overtime work, for which he was not compensated, and that JCCEO did not know of any such alleged overtime." (Doc. 19 at 15). It further states "no legitimate evidence" supports JCCEO should have known of the alleged overtime.
Taken in the light most favorable to Holt, there is evidence from which a jury could conclude JCCEO knew of Holt's uncompensated overtime. First, Holt's supervisor, Woods, testified that he believed Holt came into work at 6:00 to 6:30 a.m. and left at 3:00 to 3:30 p.m. — at a minimum, a nine-hour workday. (Doc. 20-4 at 8 (28:7-15)). This raises a genuine issue of material fact as to Woods' knowledge Holt was working overtime without pay, and thus as to JCCEO's actual knowledge of Holt's overtime. Second, the evidence indicates Holt's supervisor told him he could not ask to receive overtime pay for overtime that had not been pre-approved and should not record overtime hours on his timesheets unless they had been preapproved. (Doc. 20-2 at 35-36 (136:1-138:9)). A jury could conclude that this was JCCEO's effort to discourage reporting legitimate overtime and impute knowledge of Holt's overtime worked to JCCEO even without Woods' actual knowledge.
In its reply, JCCEO attempts to distinguish two cases cited by Holt (indirectly, as they are discussed within Holt's blockquote of Bailey, 776 F.3d at 802, (see doc. 21 at 2-23)) to support imputed knowledge. (Doc. 24 at 8-9). In the first case, Brennan v. Gen. Motors Acceptance Corp., supervisors exerted "pressure" on their inferiors to understate their overtime. 482 F.2d 825, 827 (5th Cir. 1973). In the second, Allen, an employee supervisor "was aware that [the employee] was working overtime hours" and was also "aware that [the employee] had been told that she could not be paid overtime." 495 F.3d at 1318. Although JCCEO states "[t]here are no legitimate facts in this case to support the type of evidence relied upon" by the Allen and Brennan courts, as discussed above, there is evidence that supports both the inference that Holt's former supervisor pressured him not to report overtime (the situation in Brennan) and that Woods was aware Holt was working more than eight hours per day (the situation in Allen). JCCEO also cites Brumbelow v. Quality Mills, Inc., 462 F.2d 1324 (5th Cir. 1972), to support that Holt's deliberate underreporting of his hours resulted in his lack of overtime pay. (Doc. 24 at 9-10). In that case, the court found no evidence to support either that the employer required the employee to underreport hours or "in any manner encouraged workers to falsely report." Brumbelow, 462 F.2d at 1327. Despite JCCEO's contention, though, there
JCCEO contends Holt's complaint alleges only a willful violation of the FLSA, and the evidence is insufficient to support a finding of willfulness. (Doc. 19 at 11-15). Holt responds that whether there is an FLSA violation and whether the violation was willful are two independent questions, but regardless there is enough evidence for a reasonable jury to answer both in the affirmative. (Doc. 21 at 18-21). In its reply, JCCEO argues an ordinary violation of the FLSA and a willful violation of the FLSA are two separate causes of action, and Holt's complaint contains only the latter. (Doc. 24 at 6-7).
It is true Holt's complaint contains multiple references to JCCEO's "willful" violations of the FLSA. (See doc. 1 at ¶¶ 15-17, 19-21 (alleging JCCEO "has willfully violated the FLSA" in various ways). But JCCEO cites no authority for its willful-or-nothing position. In fact, whether a violation is willful or not extends the limitations period for a plaintiff's recovery. Alvarez Perez v. Sanford-Orlando Kennel Club, Inc., 515 F.3d 1150, 1162 (11th Cir. 2008). If a violation is willful, a plaintiff can recover damages for violations three years prior to the date of filing; if it is not, the violation is subject to the ordinary two-year statute of limitations. Murray v. Birmingham Bd. of Educ., 172 F.Supp.3d 1225, 1239 (N.D. Ala. 2016) (citing 29 U.S.C. § 255(a)). Nothing in the case law concerning willful violations implies a plaintiff who has pleaded a willful violation is barred from any recovery at all if he merely shows an ordinary violation within the two years prior to when he filed his complaint.
Turning to the question of whether there is sufficient evidence of willfulness in this case to survive summary judgment, "[t]o establish that the violation of the [FLSA] was willful in order to extend the limitations period, 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." Alvarez Perez v. Sanford-Orlando Kennel Club, Inc., 515 F.3d 1150, 1162-63 (11th Cir. 2008) (citing McLaughlin, 486 U.S. at 133). Holt relies on "reckless disregard," defined as an employer's "failure to make adequate inquiry into whether [its] conduct is in compliance with the [FLSA]." 5 C.F.R. § 551.104. An employer's actions are not willful if it "acts unreasonably but not recklessly in determining its legal obligation under the FLSA." Allen v. Bd. of Pub. Educ., 495 F.3d 1306, 1324 (11th Cir. 2007).
JCCEO argues its conduct here cannot willful because (1) it had an overtime policy as set out in its employee handbook; (2) even if any employee failed to request approval for overtime, the employee was paid for overtime if he or she actually worked it; and (3) employees completed timesheets of their hours, and it is undisputed Holt completed and signed timesheets and was paid for all the time he reported. (Doc. 19 at 14-15). It purports to contrast this with two cases it says are illustrative. In Souryavong v. Lackawanna County, 872 F.3d 122 (3d Cir. 2017), the Third Circuit affirmed a district court's decision to grant judgment as a matter of law to an employer, in part due to the plaintiffs' inability to connect an email that discussed potential labor grievances for overtime back pay to the FLSA. It is unclear what application Souravong has to this case, because it is undisputed that JCCEO's employee handbook explicitly connects the issue of overtime to the FLSA. (See doc. 22-3 at 3 (discussing overtime pay for non-exempt employees on a page entitled "Fair Labor Standards Act (FLSA) and Compensation)). In the other case JCCEO cites, Davila v. Menendez, 717 F.3d 1179 (11th Cir. 2013), a minimum wage case, there was evidence to support that the employers were aware of hourly wage laws but did not investigate their compliance with them; that they failed to keep records of the employee's hours; that they falsified their tax returns; that they used the employee's immigration status against her; that they paid the employee in cash; and that they otherwise covered up their noncompliance with minimum wage laws. JCCEO says this type of conduct is not present in this case, (doc. 19 at 14), but it is not necessarily due summary judgment on the issue of willfulness just because its conduct is not as egregious as another employer's.
Although in an unpublished, per curiam decision, the Eleventh Circuit confronted similar facts to this case in Gilbert v. City of Miami Gardens, 625 F. App'x 370 (11th Cir. 2015). In Gilbert, the plaintiff was responsible for recording her own timesheets. Id. at 371. After several years on the job, one of her supervisors informed her that the department lacked the budget for overtime and stated she would have to seek preapproval if she needed to or was asked to work overtime. Id. Afterwards, the plaintiff often worked overtime, but stopped recording that she was working more than eight hours a day on her timesheets. Id. After a jury trial, the district court granted judgment as a matter of law to an employer, finding no reasonable jury could find a willful violation and, in the absence of willfulness, the plaintiff's claims were time-barred. Id. at 371-72. The Eleventh Circuit reversed. Id. at 372. It pointed to the fact that the plaintiff had worked overtime prior to being told to seek preapproval for overtime, but afterwards recorded exactly eight hours of work despite the fact that her job duties required her to work longer. Id. Further, some of the plaintiff's coworkers saw her working hours consistent with overtime. Id. And, despite the fact that the employer nominally allowed preapproved overtime, a jury could have believed that the direction that the plaintiff should not submit overtime "essentially trumped the former rule." Id. Although the jury heard facts that undermined willfulness, the court held these facts entitled the jury "to decide for itself whether the City willfully violated the FLSA." Id. at 373.
There is no evidence to support that Holt's job duties increased such that his superiors would have known he could not complete his work in a forty-hour week, but this case is close to the facts of Gilbert. Although JCCEO points out that Holt was paid for overtime he actually reported, as in Gilbert, a reasonable jury could find his supervisor's instruction he could not report unapproved overtime on his timesheet effectively put an end to Holt's reports of overtime. And, as in Gilbert, JCCEO cannot simply rely on the fact that it paid Holt for the hours he reported when its supervisor's direction arguably led Holt to underreport his hours. Consequently, there is evidence in this case from which a jury could find JCCEO's conduct was willful.
For the reasons stated above, JCCEO's motion for summary judgment, (doc. 19), and motion to strike, (doc. 25), are
