United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER 
H. ENGLAND, III UNITED STATES MAGISTRATE JUDGE
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.
Standard of Review
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).
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).
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
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
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
JCCEO's Motion to Strike (Doc. 25)
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). (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).
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,  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.
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). 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.
JCCEO's Objection to Holt's Description of Job
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.
Holt's Objection to Singgellos Affidavit
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).
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)).
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. Consequently,
Holt's objection is OVERRULED, and the
undersigned will consider Singgellos's affidavit.
Summary Judgment Facts
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)).
Holt's Early Work at JCCEO
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)).
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)).
Holt's Promotion to Transportation Manager
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).
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, ” 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).
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
(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)).
Holt's Working Hours as Transportation Manager
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)).
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)).
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),
Holt's Duties as ...