United States District Court, M.D. Alabama, Eastern Division
MEMORANDUM OPINION AND ORDER
F. MOORER UNITED STATES MAGISTRATE JUDGE
pending before the Court is Defendant's Motion for
Summary Judgment (Doc. 68, filed August 15, 2016). This
action is assigned to the undersigned magistrate judge to
conduct all proceedings and order entry of judgment by
consent of all the parties pursuant to 28 U.S.C. §
636(c). See Docs. 45, 46. After a careful review of
all the written pleadings, motions, responses, and replies,
the Court GRANTS in part and DENIES in part the motion for
summary judgment (Doc. 68).
asserts claims pursuant to 28 U.S.C. § 1331 (federal
question jurisdiction) as she brings claims for violations of
the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201,
et seq. No party contests either subject matter or
personal jurisdiction and adequate support exists for both.
Background and Procedural History
Karla Morrison (“Plaintiff” or
“Morrison”) filed her Complaint in this case on
October 2, 2014 wherein she alleged violations of the Fair
Labor Standards Act (“FLSA”). See Doc.
1. Defendant is Charles J. Veale, M.D., P.C.
(“Defendant” or “Veale Practice”).
Plaintiff argues she was employed by Defendant from September
2011 through her termination on August 19, 2014. Plaintiff
asserts two counts for violations of FLSA. Count I alleges
that Defendant failed to pay her the minimum wage from
September 2011 until mid-February 2012 though she worked
approximately thirty (30) hours per week. Count II alleges
that Defendant failed to pay overtime compensation from
February 2012 to August 19, 2014 (her termination date)
though Plaintiff regularly worked in excess of forty (40)
several continuances of the discovery deadline and other
relevant deadlines, the discovery period finally concluded on
August 5, 2016. See Doc. 66. On August 30, 2016,
Defendant filed its motion for sanctions for spoliation of
evidence. See Doc. 73. Specifically, Defendant
alleges that after Plaintiff's termination, she
improperly logged in to the office email account and deleted
all the emails contained within the account, would secretly
and repeatedly log-in to the email account to delete emails
throughout the course of the litigation, and added 2-step
verification to the log in process to prevent others from
accessing the email account. Plaintiff denied the
allegations. Due to the nature of the spoliation allegations,
the Court suspended briefing on the motion for summary
judgment to resolve the issues of spoliation and sanction.
See Doc. 74. After holding a hearing and considering
all briefs on the matter, the Court determined that
deliberate spoliation occurred and that the emails were
deleted in bad faith. See Docs. 87, 92.
Consequently, the Court granted the request for sanction and
imposed an unrebuttable adverse inference instruction -
deeming the hours presented in the time cards as admitted and
accepted as true. See Doc. 92 at p. 15.
Specifically, the Court stated
The fact-finder must accept as true the time cards /
timesheets created by Plaintiff while she worked for the
Veale Practice. Plaintiff is precluded from submitting
evidence in dispute of the time cards that she herself
created to reflect her hours while working at the Veale
Practice. All Veale Practice employees sent their respective
time cards and time sheets to Plaintiff (as the Office
Manager) who then signed off on them and sent them to the
Practice's accountant for pay calculation. Plaintiff
created her own time records to reflect her hours paid.
Further, as the Office Manager, Plaintiff bore the
responsibility for reviewing all employee's time cards
(including her own) for accuracy to ensure employees were
paid for all the hours they worked. See Doc. 80, p.
6-7 (containing citations to evidence). This mandatory
evidentiary presumption that the time cards are accurate
prevents Plaintiff from benefiting from the email
Id. at p. 15-16.
making its determination, the Court issued a new briefing
schedule for the motion for summary judgment and set the
remaining deadlines in the case. See Docs. 88-89.
Plaintiff timely filed her opposition to the motion for
summary judgment. See Doc. 95. Defendant timely
filed its reply. See Doc. 96.
of the Complaint alleges Plaintiff worked from September 2011
to mid-February 2012 and was not paid for the work she
performed for the benefit of the Defendant. See Doc.
1 at p. 3; see also Doc. 95 at p. 2 (Response in
opposition to summary judgment). Defendant asserts in its
motion for summary judgment that this claim is barred by the
FLSA's two-year statute of limitations. See Doc.
68 at p. 7-9. Specifically, Defendant states that Plaintiff
has not shown the claim arises out of a willful violation
which is the only time the statute of limitations extends to
three years. Id. Further, Defendant argues Plaintiff
volunteered for the first several months and FLSA is not even
applicable to the claim. Id. Plaintiff opposes
summary judgment on Count I and states FLSA does not allow an
employee to work for free or volunteer services without pay.
See Doc. 95 at p. 6. Plaintiff further argues that
the three-year statute of limitations may apply even when the
employer did not knowingly violate the FLSA, but simply
disregarded the possibility that it might be violating the
II of the Complaint alleges Plaintiff regularly worked in
excess of forty hours in a work week, but was rarely paid for
her overtime hours. See Doc. 1 at p. 4-5.
Specifically, Plaintiff claims she consistently worked
between 25-30 hours of overtime each week from mid- February
2012 through August 2014 and was not paid 1 ½ times
her regular hourly rate for those hours. Id.
Defendant asserts in its summary judgment motion that the
Veale Practice maintained time sheets to demonstrate the
hours worked by its employees. See Doc. 68 at p. 5.
Plaintiff - as the office manager - was responsible for
ensuring the accuracy of the time sheets, certifying the
hours, and submitting the time sheets to the accountant for
pay computation. Id. Defendant asserts that because
they had no knowledge of the overtime hours and Plaintiff
herself was the one responsible for the allegedly false time
cards, it cannot be held responsible for actions Plaintiff
independently chose to take without its knowledge.
Id. at p. 10-11. Additionally, Defendant argues the
job could be done within the normal 40-hour workweek as
before and after Plaintiff's tenure as Office Manager,
the position was only part-time. Id. at p. 11.
Finally, and in the alternative, Defendant argues that from
January 13, 2014, Plaintiff was an exempt, salaried,
administrative employee and therefore not entitled to
overtime. Id. at p. 12-13. Plaintiff, in her
opposition to defendant's motion for summary judgment,
acknowledges that as a result of the Court's sanction
imposing the mandatory evidentiary presumption that the time
cards are accurate, there are “[no] remaining issues to
be addressed at this time regarding the Plaintiff's
overtime claim.” See Doc. 95 at p. 1-2.
Plaintiff does add in a footnote that if the Court disagrees
with the assessment then supplemental briefing could be
Defendant also asserts it is entitled to summary judgment on
Plaintiff's prayer for liquidated damages and
attorney's fees. The basis for this is tied to the
previous assertion that Plaintiff cannot establish any
violation would be willful.
Court has carefully reviewed the pleadings, motions,
responses, and reply on this matter. The motion and the
issues presented are fully briefed and ripe for review.
Standard of Review
court shall grant summary judgment 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.”
Fed.R.Civ.P. 56(a). A factual dispute alone is not enough to
defeat a properly pled motion for summary judgment; only the
existence of a genuine issue of material fact will preclude a
grant of summary judgment. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91
L.Ed.2d 202 (1986). “[T]he substantive law will
identify which facts are material.” Id. at
248, 106 S.Ct. at 2510. At the summary judgment juncture, the
court does not “weigh the evidence and determine the
truth of the matter, ” but solely “determine[s]
whether there is a genuine issue for trial.”
Id. at 249, 106 S.Ct. at 2511. An issue is genuine
if the evidence is such that a reasonable jury could return a
verdict for the non-moving party. Mize v. Jefferson City
Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996) (citing
Hairston v. Gainesville Sun Publ'g Co., 9 F.3d
913, 918 (11th Cir. 1993)).
moving party bears the initial burden of showing the court,
by reference to materials on file, that there are no genuine
issues of material fact that should be decided at trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106
S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986)). A party must
support its assertion that there is no genuine issue of
material fact by “citing to particular parts of
materials in the record, including depositions, documents,
electronically stored information, affidavits or
declarations, stipulations . . . admissions, interrogatory
answers, or other materials” or by “showing that
the materials cited do not establish the absence or presence
of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.” Fed.R.Civ.P.
56(c)(1). The admissibility of evidence is subject to the
same standards and rules that govern admissibility of
evidence at trial. Clemons v. Dougherty County,
Georgia, 684 F.2d 1365, 1369 n.5 (11th Cir. 1982)
(citing Pan-Islamic Trade Corp. v. Exxon Corp., 632
F.2d 539, 556 (5th Cir. 1980)).
a moving party has discharged its burden, the non-moving
party must then ‘go beyond the pleadings, ' and by
its own affidavits, or by depositions, answers to
interrogatories, and admissions on file, ' designate
specific facts showing that there is a genuine issue for
trial.” Jeffery v. Sarasota White Sox, Inc.,
64 F.3d 590, 593-94 (11th Cir. 1995) (citing
Celotex, 477 U.S. at 324). The court must view facts
and draw all reasonable inference in favor of the nonmoving
party. Moore v. Reese, 637 F.3d 1220, 1231 (11th
Cir. 2011) (citing Rosario v. Am. Corrective Counseling
Servs., Inc., 506 F.3d 1039, 1043 (11th Cir. 2007)).
However, to avoid summary judgment, the nonmoving party
“must do more than simply that there is some
metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co., Ltd v. Zenith Radio
Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89
L.Ed.2d 538 (1986) (citations omitted). Conclusory
assertions, unsupported by specific facts, presented in
affidavits opposing the motion for summary judgment are
likely insufficient to defeat a proper motion for summary
judgment. Lejaun v. Nat'l Wildlife Federation,
497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990).
Fed.R.Civ.P. 56(e) also provides that “[i]f 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: (1) give an
opportunity to properly support or address the fact; (2)
consider the fact undisputed for purposes of the motion; (3)
grant summary judgment if the motion and supporting
materials-including the facts considered undisputed-show that
the movant is entitled to it; or (4) issue any other
Discussion and Analysis
seeks to hold Defendant liable for violation of the minimum
wage and overtime provisions of the FLSA, 29 U.S.C.
§§ 206(a), 207(a) (“FLSA”). The federal
minimum wage at the time at issue was $7.25 per hour. 29
U.S.C. § 206(a). Also, an employer must pay one and
one-half times the employee's regular rate for all hours
worked in excess of forty hours per work week. 29 U.S.C.
§ 207(a). Plaintiff bears the burden of proving by a
preponderance of the evidence: 1) the existence of an
employment relationship; 2) that she was an employee engaged
in commerce or employed by an “enterprise”
engaged in commerce; 3) that Defendants failed to pay her the
minimum wage and overtime required by the FLSA; 4) the
Plaintiff was not exempt from FLSA; 5) the Defendant knew or
showed reckless disregard for whether FLSA prohibited its