Holt v. Jefferson County Committee For Economic Opportunity

          MEMORANDUM OPINION AND ORDER ^[1]

          JOHN H. ENGLAND, III UNITED STATES 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 DENIED.

         I. Standard of Review

          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 Plaintiffs favor when sufficient competent evidence supports Plaintiffs 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).

         II. Evidentiary Objections

         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:

Subdivision (c)(2) provides that a party may object that material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence. The objection functions much as an objection at trial, adjusted for the pretrial setting. The burden is on the proponent to show that the material is admissible as presented or to explain the admissible form that is anticipated. There is no need to make a separate motion to strike. If the case goes to trial, failure to challenge admissibility at the summary-judgment stage does not forfeit the right to challenge admissibility at trial.

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 Fed.Appx. 874, 879 (11th Cir. 2013).^[2]

         A. JCCEO's Motion to Strike (Doc. 25)

         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).^[3] (Doc. 25 at ¶ 2). JCCEO argues there is no way to verify the accuracy of the sheets, pointing to Holt's deposition testimony indicating he could not determine from the sheets how much of his time was spent working, as opposed to doing other things. (Id. at ¶ 3). JCCEO states the sheets are not intended to be timekeeping records, do not accurately reflect time actually worked, are unreliable on the issue of how much time Holt actually worked, and are therefore irrelevant. (Id. at ¶¶ 4-7). In response, Holt contends the evidence would be admissible at trial - the relevant inquiry - and should therefore be considered. (Doc. 28).

         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, ^[4] Holt may provide evidence from which a factfinder could infer the approximate hours he worked:

[I]n situations where the employer's records cannot be trusted and the employee lacks documentation, the Supreme Court held “that an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.” [Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946)]. The burden then becomes the employer's, and it must bring forth either evidence of the precise amount of work performed or evidence to negate the reasonableness of the inference to be drawn from the employee's evidence. Id. at 687-88, 66 S.Ct. 1187. “If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result be only approximate.” Id. at 688, 66 S.Ct. 1187.

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).^[5] Questions of evidentiary weight are not resolved at summary judgment. Anderson, 477 U.S. at 250. JCCEO also emphasizes that the sign-in sheets are intended as a record of who was in the building for security purposes, but the original intent behind the sheets is simply another question of how accurate they are as a reflection of the time Holt actually worked. Accordingly, JCCEO's objection is OVERRULED, and its motion to strike is DENIED.

         B. JCCEO's Objection to Holt's Description of Job Duties

          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 OVERRULED.

         C. Holt's Objection to Singgellos Affidavit

         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 Fed.Appx. 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 Fed.Appx. 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.^[6] Consequently, Holt's objection is OVERRULED, and the undersigned will consider Singgellos's affidavit.

         III. Summary Judgment Facts^[7]

         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)).

         A. Holt's Early Work at JCCEO

         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)).

         B. Holt's Promotion to Transportation Manager

          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, ”^[8] which would require preapproval from his supervisor. (Id. at 28 (106:1-22)). Holt signed the offer letter, acknowledging that the employment offer was contingent on a background check, drug test, and completion of an I-9 form. (Doc. 20-2 at 57).

         JCCEO's written job qualifications for Transportation Manager are:

EDUCATION: AA degree in some area related to business or transportation. Must have a valid Alabama driver's license, a CDL, experience in operating a motor vehicle, and an accident-free record for at least three years.

EXPERIENCE: Five years supervisory and management experience related to some aspect of transportation and/or supplies.

ABILITIES: Ability to work cooperatively and collaboratively with other staff members and vendors. Able to exercise discretion and sound judgment in the performance of duties.

PERSONAL Sound physical and mental health. Must be able to

ATTRIBUTES: relate positively and professionally to staff, participants, and vendors. Must be willing to attend night meetings and/or meetings outside of regular working hours when necessary.

(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)).

         C. Holt's Working Hours as Transportation Manager

          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)).

         D. Holt's Duties as ...