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White v. The NIF Corp.

United States District Court, S.D. Alabama, Southern Division

January 18, 2017

KATHERINE WHITE, et al., Plaintiffs,
THE NIF CORPORATION, etc., Defendant.



         This matter is before the Court on the plaintiffs' motion for partial summary judgment. (Doc. 67). The parties have filed briefs and evidentiary materials in support of their respective positions, (Docs. 66, 67, 69, 70, 73), and the motion is ripe for resolution. After careful consideration, the Court concludes the motion is due to be granted in part and denied in part.


         This is a collective action to recover amounts allegedly due the original plaintiff and seven opt-in plaintiffs (collectively, “the plaintiffs”) under the Fair Labor Standards Act (“FLSA”). According to the complaint, (Doc. 1), the plaintiffs were employed by the defendant as servers at its Spanish Fort restaurant. As relevant to the instant motion, the complaint alleges that the defendant: (1) failed to pay the plaintiffs for all hours worked; and (2) failed to pay the plaintiffs the minimum wage for substantial non-tipped work. On the instant motion, various subsets of the plaintiffs seek partial summary judgment as to specific dates and hours, resulting in specific monetary awards, plus an equal amount as liquidated damages.


         Summary judgment should be granted only if “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). The party seeking summary judgment bears “the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The moving party may meet its burden in either of two ways: (1) by “negating an element of the non-moving party's claim”; or (2) by “point[ing] to materials on file that demonstrate that the party bearing the burden of proof at trial will not be able to meet that burden.” Id. “Even after Celotex it is never enough simply to state that the non-moving party cannot meet its burden at trial.” Id.; accord Mullins v. Crowell, 228 F.3d 1305, 1313 (11th Cir. 2000); Sammons v. Taylor, 967 F.2d 1533, 1538 (11th Cir. 1992).

         “When the moving party has the burden of proof at trial, that party must show affirmatively the absence of a genuine issue of material fact: it must support its motion with credible evidence ... that would entitle it to a directed verdict if not controverted at trial. [citation omitted] In other words, the moving party must show that, on all the essential elements of its case on which it bears the burden of proof, no reasonable jury could find for the nonmoving party.” United States v. Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir. 1991) (en banc) (emphasis in original); accord Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993).

         “If the party moving for summary judgment fails to discharge the initial burden, then the motion must be denied and the court need not consider what, if any, showing the non-movant has made.” Fitzpatrick, 2 F.3d at 1116; accord Mullins, 228 F.3d at 1313; Clark, 929 F.2d at 608.

         “If, however, the movant carries the initial summary judgment burden ..., the responsibility then devolves upon the non-movant to show the existence of a genuine issue of material fact.” Fitzpatrick, 2 F.3d at 1116. “If the nonmoving party fails to make ‘a sufficient showing on an essential element of her case with respect to which she has the burden of proof, ' the moving party is entitled to summary judgment.” Clark, 929 F.2d at 608 (quoting Celotex Corp. v. Catrett, 477 U.S. 317 (1986)) (footnote omitted); see also Fed. R. Civ. P. 56(e)(2) (“If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may … consider the fact undisputed for purposes of the motion ….”).

         In deciding a motion for summary judgment, “[t]he evidence, and all reasonable inferences, must be viewed in the light most favorable to the nonmovant ….” McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003).

         There is no burden on the Court to identify unreferenced evidence supporting a party's position.[1] Accordingly, the Court limits its review to the exhibits, and to the specific portions of the exhibits, to which the parties have expressly cited. Likewise, “[t]here is no burden upon the district court to distill every potential argument that could be made based upon the materials before it on summary judgment, ” Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995), and the Court accordingly limits its review to those arguments the parties have expressly advanced.

         I. Uncompensated Hours.

         The parties agree that employees clock in and out using a point-of sale (“POS”) system with individually assigned code numbers. The parties agree that an employee's time can be reflected in up to four sets of records: (1) attendance reports (“Focus Attendance Reports”), which are generated directly from the POS system; (2) internal reports (“Internal Payroll Reports”) created by the defendant, which the defendant admits are supposed to match exactly the hours reflected on the Focus Attendance Reports; (3) worksheets (“Payroll Worksheets”), which are blank forms completed by hand by the defendant's representatives from the Focus Attendance Reports and/or Internal Payroll Reports and sent to the defendant's payroll outsourcing company (“APS”) for its use in completing the defendant's weekly payroll; and (4) reports (“Payroll Registers”) prepared by APS and reflecting the number of hours for which the employee was paid for the workweek. (Doc. 66-5 at 36-38; Doc. 67 at 10-11; Doc. 69 at 6-7).

         The defendant has not maintained a complete set of either the Focus Attendance Reports or the Internal Payroll Reports. However, because the latter are intended by the defendant to reflect exactly the former, the plaintiffs may, and do, rely on the latter when the former are missing. (Doc. 66-12 at 3; Doc. 67 at 12 n.5; Doc. 69 at 7).

         The plaintiffs identify two ways in which the defendant failed to compensate them for all worked hours. In the first, the defendant edited the Focus Attendance Reports to delete time entries, resulting in the affected plaintiff receiving no pay for the deleted hours. In the second, the Focus Attendance Reports were not edited but the affected plaintiff nevertheless received pay for fewer hours than reflected on the Focus Attendance Reports or Internal Payroll Reports. The plaintiffs identify eight specific instances of the former circumstance and nine specific instances of the latter. The Court has reviewed the documents on which the plaintiffs rely and has confirmed both that the discrepancies exist and that they exist in the precise amounts asserted by the plaintiffs.

         The defendant neither denies the discrepancies nor quarrels with the plaintiffs' mathematical calculations. Instead, the defendant asserts that “the unedited Focus Attendance Reports and Internal Payroll Reports are unreliable as records of actual hours worked by Plaintiffs.” (Doc. 69 at 10).

         An FLSA plaintiff “has the burden of proving that he performed work for which he was not properly compensated. … When the employer has kept proper and accurate records the employee may easily discharge his burden by securing the production of those records.” Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946). The defendant's evidence of unreliability, (Doc. 69 at 10-12), is far too feeble to prevent the plaintiffs from proving the fact and quantity of uncompensated hours from the defendant's own records.

         The defendant stresses that employees have been known to forget to clock out, resulting in the unedited Focus Attendance Reports crediting them with working all the way through to their next shift, thereby crediting them with workdays of up to 20 hours; plaintiff White even testified this had happened with her. The problem, of course, is that none of the seventeen specific instances at issue on this motion involve such an extreme situation with such a radical reduction of recorded hours; that such lengthy forgetfulness may have occurred at other times is irrelevant.

         The defendant also stresses that employees have on occasion forgotten to clock out but have quickly notified management so that the correct hours can be paid; White again testified that she had done so. Such circumstances might explain why some entries in the Focus Attendance Reports are edited to reduce the reported time but, again, none of the eight specific instances of editing at issue on this motion involve such a situation. The only edits to the Focus Attendance Reports at issue herein involve the complete deletion of entire work shifts, something that cannot be explained as a response to an employee forgetting to clock out at the end of her shift.

         As to the nine other specific instances of reduced hours, adjustments for employee forgetfulness theoretically could explain the discrepancy between the Focus Attendance ...

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