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Morrison v. Veale

United States District Court, M.D. Alabama, Eastern Division

March 23, 2017

CHARLES J. VEALE, M.D., P.C., Defendant.



         Now 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).

         I. Jurisdiction

         Morrison 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.

         II. Background and Procedural History

         Plaintiff 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) hours.

         After 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 destruction.

Id. at p. 15-16.

         After 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.

         Count I 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 FLSA. Id.

         Count 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 filed.

         Finally, 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.

         The 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.

         III. Standard of Review

         “The 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)).

         The 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)).

         “When 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).

         Finally, 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 appropriate order.”

         IV. Discussion and Analysis

         Plaintiff 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 ...

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