JOHN H. ENGLAND, III, Magistrate Judge.
Plaintiff Michelle Lee Sims ("Sims" or "Plaintiff") brought this action on September 1, 2017, against Defendants Event Operations Group, Inc. ("EOG") and Mike Jones ("Jones," and together with EOG, "Defendants"), alleging Defendants violated the Fair Labor Standards Act ("FLSA") by failing to pay her overtime compensation. (Doc. 1). Sims has since amended her complaint, and her second amended complaint, (doc. 15) is the operative pleading. Sims now moves for partial summary judgment. (Doc. 24).
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, Sims has moved to strike nearly identical declarations by Jones or, failing that, what she alleges are inadmissible portions of those declarations. (Doc. 30).
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).
The two declarations Sims objects to are identical apart from their signature blocks. (Compare doc. 28 at 11-14 with doc. 29). Both declarations are attributed to "Mike Jones, in my capacity as CEO of Event Operations Group, Inc., and in my proper person herein." (Doc. 28 at 14; doc. 29 at 4). The first was submitted along with Defendants' response to Sims' motion for summary judgment on September 10, 2018 (one day before Defendants' response deadline, (see doc. 27)); it is dated the same day. (Doc. 28 at 11-14). Instead of a signature, the declaration states it was "reviewed and approved by Declarant with signature to follow." (Id. at 14). True to that representation, the second declaration, submitted separately on September 24, 2018 and dated the same day, contains a signature. (Doc. 29 at 4).
Sims argues the unexecuted declaration submitted timely with Defendants' motion for summary judgment is technically defective because it fails to include a statement that it was made under penalty of perjury. (Doc. 30 at 3-4). She then contends the executed declaration is procedurally defective because it fails to comply with the requirement in the undersigned's Initial Order requiring evidentiary materials to be filed along with briefs, (see doc. 18 at 6). Regardless of any technical defect in the original affidavit, based on Defendants' representations Jones was unavailable to sign the declaration when their brief was due, (doc. 33 at 1-2), the undersigned will excuse Defendants' noncompliance with the Initial Order and will consider the substantively identical executed declaration (the "Jones Declaration") timely filed.
Sims points to three paragraphs in the Jones Declaration she says contain inadmissible evidence: paragraphs 5, 11, and 13. (Doc. 30 at 5-6). In relevant part, these paragraphs state:
(Doc. 29 at ¶¶ 5, 11 & 13). Sims states these paragraphs contain statements not made on personal knowledge, conclusory statements and opinions, and irrelevant statements. (Doc. 30 at 6-11). Defendants' response states only that Jones' unique position within EOG means the statements are not inadmissible, and because of Jones' "ownership and executive officer positions" he is a knowledgeable declarant. (Doc. 33 at 4-5).
For the most part, Sims has the better argument. Rule 56(c)(4) requires that "[a]n affidavit or declaration used to support or oppose a motion must be made on personal knowledge [and] set out facts that would be admissible in evidence. . . ." FED. R. CIV. P. 56(c)(4). Jones specifically disclaims knowledge of Sims' employment and the event locations where Sims worked, familiarity with EOG's issuance of wage checks or tax forms to Sims, and knowledge of payroll miscalculations related to Sims. (Doc. 29 at ¶¶ 2-5). Beyond Jones' statement he is "a sixty percent (60%) owner and CEO of Event Operations Group, Inc," (doc. 29 at ¶ 1), the Jones Declaration provides no reason to conclude Jones has any firsthand knowledge of EOG's policies and procedures related to overtime compensation, scheduling, or payroll, nor the reason Sims was not properly paid overtime. That said, the undersigned concludes Sims is entitled to summary judgment even taking the contentions in the Jones Declaration into account; therefore, Sims' objection is
EOG provides staffing (e.g., security and customer service staff) to its customers for events. (Doc. 15 at ¶ 1; doc. 16 at ¶ 1).
Jones is an owner and corporate officer of EOG and controls its day-to-day operations and finances. (Doc. 15 at ¶ 10; doc. 16 at ¶ 10). Jones' control extends to employee compensation, and Jones could direct EOG to compensate Sims consistent with the FLSA or not compensate her consistent with the FLSA. (Doc. 15 at ¶ 11(a)-(b); doc. 16 at ¶ 11).
EOG employed Sims from August 11, 2015, until her termination. (Doc. 15 at ¶ 9; doc. 16 at ¶ ¶ 9; doc. 10 at ¶ 5). During Sims' employment, EOG assigned her to work at various locations including Barber Motor Sports, Pelham High School, the University of Alabama, and the City of Vestavia Hills. (Doc. 15 at ¶ 12; doc. 16 at ¶ 12). Since December 2015, Sims was assigned to the McWane Center in downtown Birmingham. (Doc. 15 at ¶ 13; doc. 16 at ¶ 13)
EOG paid Sims on an hourly basis. (Doc. 15 at ¶ 11; doc. 16 at ¶ 11). Sims' time was recorded weekly and she was paid "straight time" for all hours worked. (Doc. 25-1 at ¶ 10; doc. 15 at ¶ 14; doc. 16 at ¶ 14). Sims was a non-exempt employee and eligible for overtime compensation. (Doc. 15 at ¶ 22; doc. 16 at ¶ 22). Nevertheless, Sims was never paid overtime for work performed over forty hours per week. (Doc. 25-1 at ¶ 10). All told, EOG failed to pay Sims for 260.50 hours of overtime during 2017, a total of $1,172.25, and 222.75 hours of overtime in 2016, a total of $968.00. (Doc. 25-1 at ¶¶ 12-16).
Jones denies any knowledge of Sims' employment with EOG or the way in which EOG paid Sims specifically. (Doc. 29 at ¶¶ 3-4). Jones also states EOG has "company policies in place to handle payroll calculations and employee scheduling and to prevent payroll miscalculations and occasions of self-scheduling." (Id. at ¶ 5). Jones says any payroll miscalculations in general would have been caused by "[p]aid employees who chose to bypass policies leading to errant payroll calculations and errant scheduling." (Id. at ¶ 5). He extends this to Sims, stating any failure to pay overtime pay to Sims was the result of "company policies having not been followed," and disclaims, on behalf of himself and EOG, that he or any other EOG owner or leader directed or knew about the violations. (Id. at ¶ 11).
Sims' second amended complaint asserts two counts: (1) in Count I, that Defendants failed to pay her overtime in violation of the FLSA; and (2) in Count II, Defendants terminated her after she filed her lawsuit in violation of the FLSA's anti-retaliation provisions. (Doc. 15). Sims has moved for summary judgment on the following issues: (1) her entitlement to unpaid overtime; (2) the amount of unpaid overtime she is entitled to; (3) whether liquidated damages are appropriate; (4) whether Jones was her employer; and (5) whether Jones is jointly and severally liable for the FLSA damages. (Doc. 24 at 5-6). Defendants concede the first two: they admit Sims is owed unpaid overtime in the amount she claims (483.25 hours, for a total of $2,140.25), and have stipulated judgment should be entered in Sims' favor on EOG's liability to her for unpaid overtime. (Doc. 28 at 6-7). However, they oppose summary judgment on the remaining three issues.
An employer who violates the FLSA's overtime provisions is liable to the employee for the employee's unpaid overtime compensation and for liquidated damages equal to that unpaid overtime compensation. 29 U.S.C. § 216(b). An employer may avoid liquidated damages only by "show[ing] to the satisfaction of the court that the act or omission giving rise to [the violation] was in good faith and that [it] had reasonable grounds for believing that [the] act or omission was not a violation." 29 U.S.C. § 260. The employer bears the burden to show it acted with both objective and subjective good faith. Rodriguez v. Farm Stores Grocery, Inc., 518 F.3d 1259, 1272 (11th Cir. 2008). Absent a showing of good faith, an award of liquidated damages is mandatory; the court has no discretion to deny liquidated damages until the employer carries its burden. Spires v. Ben Hill Cty., 980 F.2d 683, 689 (11th Cir. 1993); Joiner v. City of Macon, 814 F.2d 1537, 1539 (11th Cir. 1987) (citation omitted).
The only evidence Defendants have offered is the Jones Declaration. After reciting the legal standard, the entirety of Defendants' argument liquidated damages are unwarranted in this case is:
(Doc. 28 at 8) (emphasis in original).
Defendants misunderstand the liquidated damages issue. The burden is not on Sims to show the absence of good faith, it is on them to show its presence. See Rodriguez, 518 F.3d at 1272. Defendants have not done so. The Jones Declaration states Jones' speculative
The Jones Declaration is also insufficient to show subjective good faith. To the extent Jones disclaims knowledge of overtime violations and speculates the overtime violations resulted from other employees not following EOG's policies (whatever they may be), (doc. 29 at ¶¶ 5 & 11), an employer cannot necessarily escape liability by delegating overtime decisions to subordinates. "[I]n reviewing the extent of an employer's awareness, a court need only inquire whether the circumstances . . . were such that the employer either had knowledge [of overtime hours being worked] or else had the opportunity through reasonable diligence to acquire knowledge." Reich v. Dep't of Conserv. and Nat. Res., St. of Ala., 28 F.3d 1076, 1082 (11th Cir.1994) (internal quotations and citations omitted). See also Caserta Caserta v. Home Lines Agency, Inc., 273 F.2d 943, 946 (2d Cir. 1959) (the employer cannot "transfer his statutory burdens of accurate record keeping . . . and of appropriate payment, to the employee). In this case, the evidence supports EOG had actual knowledge of an FLSA violation because EOG recorded Sims' hours, paying her straight time for hours she should have received overtime pay. (Doc. 25-1 at ¶ 10; doc. 15 at ¶ 14; doc. 16 at ¶ 14). Jones could have obtained this knowledge for himself through reasonable diligence; as he noted in his declaration, his review of Sims' paystubs indicated she was erroneously paid. (See doc. 29 at ¶ 6). This demonstrates Jones' constructive awareness of a violation. See Ingram v. Passmore, 175 F.Supp.3d 1328, 1334 (N.D. Ala. 2016) (imposing liquidated damages over employer's objection he lacked knowledge of overtime violations when employer could easily calculate overtime owed through examining employee's paychecks). In the absence of contrary evidence — which was Defendants' burden to produce — the undersigned concludes Defendants' professed ignorance of overtime violations is insufficient to show their subjective good faith.
Although Defendants state "a divergence of factual assertions" requires the issue of liquidated damages to be resolved by the trier of fact at an evidentiary hearing, once liability is set, the question of liquidated damages falls to the judge. See Alvarez Perez v. Sanford-Orlando Kennel Club, Inc., 515 F.3d 1150, 1163 (11th Cir. 2008). It is not inappropriate to resolve the issue of liquidated damages at summary judgment once an FLSA violation has been established. See, e.g., Ingram, 175 F. Supp. 3d at 1334 (awarding liquidated damages to one set of plaintiffs on summary judgment, but deferring as to others because no FLSA violation had been established); Meeks v. Pasco Cty. Sheriff, 688 F. App'x 714, 718 (11th Cir. 2017) (affirming award of liquidated damages at summary judgment). Because Defendants have failed to meet their burden to establish good faith, an award of liquidated damages is mandatory. Therefore, Sims' motion for summary judgment is due to be granted as to liquidated damages in the amount of $2,140.25.
A person cannot be held individually liable for violating the FLSA's overtime provision unless he is an "employer" under the Act. Alvarez Perez, 515 F.3d at 1160 (citing 29 U.S.C. § 207(a)(1); Donovan v. Grim Hotel Co., 747 F.2d 966, 971 (5th Cir. 1984)). An employer is "any person acting directly or indirectly in the interest of an employer in relation to an employee." 29 U.S.C. § 203(d). "The overwhelming weight of authority is that a corporate officer with operational control of a corporation's covered enterprise is an employer along with the corporation, jointly and severally liable under the FLSA for unpaid wages." Patel v. Wargo, 803 F.2d 632, 637-38 (11th Cir. 1986) (internal quotation marks and citation omitted). To fit into this definition, the officer "must either be involved in the day-to-day operation or have some direct responsibility for the supervision of the employee." Id. at 638.
Sims points to Defendants' admissions in their answer that Jones had control over day-to-day operations of EOG, including employee compensation, and that he is Sims' employer. (Doc. 24 at 16-18). In their response, Defendants deny Jones had the amount of control Sims alleges "relating to operations and finances, including employee compensation." (Doc. 28 at 8-9). They also state that while Jones may be considered Sims' FLSA employer "in the most enlarged view," he lacked "privity of relationship" with Sims because Sims received pay from EOG. (Id. at 9). Defendants further deny Sims has produced any evidence Jones is Sims' employer. (Id.).
The problem for Defendants is the admissions in their answer bind them. Best Canvas Prods. & Supplies, Inc. v. Ploof Truck Lines, Inc., 713 F.2d 618, 621 (11th Cir.1983). Further, Sims was not required to come forward with any evidence in support of these contentions; "facts judicially admitted [in an answer] are facts established not only beyond the need of evidence to prove them, but beyond the power of evidence to controvert them." Cooper v. Meridian Yachts, Ltd., 575 F.3d 1151, 1178 (11th Cir. 2009) (quoting Hill v. Federal Trade Comm'n, 124 F.2d 104, 106 (5th Cir. 1941)).
As stated above, a corporate officer employer (like Jones) is jointly and severally liable with the corporation for unpaid wages. Patel, 803 F.2d at 637-38 (11th Cir. 1986). To rebut Sims' contention Jones is jointly and severally liable under this standard, (doc. 24 at 18), Defendants reproduce, word for word, their arguments against liquidated damages and against Jones' individual liability. (Doc. 28 at 9-10). The undersigned has already found these unavailing. Accordingly, Sims' motion is granted as to Jones' joint and several liability with EOG.
For the reasons stated above, Sims' motion for partial summary judgment is
The remaining claim in this action, Sims' retaliatory termination count, proceeds. The parties are encouraged to discuss alternative dispute resolution, including the potential for mediation. The parties are
