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explaining that a summary chart must be properly introduced through the testimony of a witness who supervised its preparation, and must also be accurate and non-argumentative
Summary of this case from Azar v. City of ChambleeOpinion
1:19-CV-01115-ELR
11-09-2020
Amy LOISEAU, Plaintiff, v. THOMPSON, O'BRIEN, KEMP & NASUTI, P.C., and Aaron Kappler, Defendants.
Charles Ronald Bridgers, Kevin D. Fitzpatrick, Jr., DeLong Caldwell Bridgers Fitzpatrick & Benjamin, LLC, Atlanta, GA, for Plaintiff. John Douglas Bennett, Natalie Pulley, Freeman Mathis & Gary, LLP, Molly Martin, Elarbee, Thompson, Sapp & Wilson, LLP, Atlanta, GA, for Defendants.
Charles Ronald Bridgers, Kevin D. Fitzpatrick, Jr., DeLong Caldwell Bridgers Fitzpatrick & Benjamin, LLC, Atlanta, GA, for Plaintiff.
John Douglas Bennett, Natalie Pulley, Freeman Mathis & Gary, LLP, Molly Martin, Elarbee, Thompson, Sapp & Wilson, LLP, Atlanta, GA, for Defendants.
ORDER
Eleanor L. Ross, United States District Judge There are several matters pending before the Court. The Court sets forth its rulings and conclusions below.
I. Background
This case stems from Plaintiff Amy Loiseau's claims that her former employer failed to pay her earned overtime wages pursuant to the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. ("FLSA"). Compl. [Doc. 1]. Defendant Thompson, O'Brien, Kemp & Nasuti, P.C. ("TOKN") is a professional corporation and full-service law firm. Defendants’ Statement of Undisputed Material Facts ("Defs.’ SOMF") ¶ 2 [Doc. 50-2]. TOKN previously maintained a collections practice group (hereinafter "Collections Department") that was disbanded as of July 31, 2019. Id. Defendant Aaron Kappler is currently a shareholder, board member, the Chief Executive Officer ("CEO"), and Chief Financial Officer ("CFO") of TOKN. Id. ¶ 3. From January 5, 2015, through March 30, 2018, Plaintiff worked as a paralegal in TOKN's Collections Department. Id. ¶ 1.
A. TOKN's Corporate Structure and Policies
As a professional corporation, TOKN (or "the firm") is owned by shareholders but managed and controlled by its board of directors. Id. ¶¶ 5–6. The board of directors adopts and approves TOKN's Employee Handbook, which sets out the general policies and procedures of the firm. Id. ¶ 10. Although the board of directors is responsible for managing the firm, it does not oversee the day-to-day supervision of non-attorney staff. Id. ¶ 9. Instead, individual attorneys are responsible for directly supervising the work of paralegals and other administrative staff who work for them. Id.
TOKN also employs a firm Administrator whose responsibilities include recruiting and on-boarding new employees, supervising non-administrative staff, processing payroll, and addressing personnel issues. Id. ¶ 11. However, the firm Administrator does not have the ability to adopt, change, or modify the policies and procedures contained in TOKN's Employee Handbook. Id. ¶ 12. That ability rests solely with TOKN's board of directors. Id.
From April 2006 through April 2015, TOKN employed Elizabeth "Lisha" Stuckey as its firm Administrator. Defs.’ SOMF ¶ 14. After Ms. Stuckey's departure, starting on May 18, 2015, Patricia Diane Beams assumed the role of TOKN's firm Administrator. Id. 13.
Upon hire, TOKN designates all employees as either exempt or non-exempt from the FLSA's overtime provisions. Id. ¶ 19. Here, the Parties do not dispute that Plaintiff was designated as a non-exempt employee, and thus, theoretically eligible for overtime pay. Id. ¶ 21. According to Defendants, all non-exempt employees are provided with the Employee Handbook and trained on the policies contained therein, including policies on overtime work and how an employee should record the hours she works. Id. ¶ 15. Plaintiff disputes that all non-exempt employees were trained on the Employee Handbook policies, but admits that she received a copy of TOKN's Employee Handbook at the outset of her employment, was instructed to review it, and was directed to speak with the firm Administrator if she had any questions. Plaintiff's Response to Defendants’ Statement of Undisputed Material Facts ("Pl.’s Resp. to Defs.’ SOMF") ¶¶ 15, 60, 62 [Doc. 73]. Pursuant to Policy 401 of the Employee Handbook, "accurately recording time worked is the responsibility of every non[-]exempt employee." Employee Handbook at 23 [Doc. 57-1]. Policy 401 further states that:
Non[-]exempt employees should accurately record the time they begin and end their work, as well as the beginning and ending time of each meal period. They should also record the beginning and ending time of any split shift or departure from work for personal reasons. Overtime work must always be approved before it is performed.
Id. Additionally, with regards to compensation and timekeeping, Policy 408 of the Employee Handbook provides:
If you are classified as a non-exempt employee, you must maintain a record of the total hours you work each day. You must accurately record your hours in accordance with The Firm's time keeping procedures. Your time record must accurately reflect all regular and overtime hours worked, any absences, late arrivals, early departures, and meal breaks. Employees are prohibited from performing any "off-the-clock" work. "Off-the-clock" work means work you may perform but fail to report. Any employee who fails to report or inaccurately reports any hours worked will be subject to disciplinary action, up to and including discharge.
It is a violation of company policy for any employee to falsify or alter his or her or another employee's time. It is also a serious violation of company policy for any employee or manager to instruct another employee to incorrectly or falsely report hours. If any manager or employee instructs you to: 1) incorrectly or falsely under- or over-report your hours worked; or 2) alter another employee's time records to inaccurately or falsely report that employee's hours worked, you should report it immediately to your supervisor or the Administrator.
Id. at 26 (emphasis in original). In sum, according to the Employee Handbook, non-exempt employees were: (1) required to accurately report their time; (2) required to seek pre-approval for any overtime hours; (3) prohibited from performing any "off-the-clock" work; (4) prohibited from incorrectly or falsely reporting their hours; and (5) prohibited from altering, tampering, or inaccurately reporting another employee's hours. Id.
The Parties do not dispute that Defendant TOKN paid the full amount of overtime reported by non-exempt employees, even when non-exempt employees did not receive pre-approval to work overtime. See Defs.’ SOMF ¶ 95.
As part of this timekeeping system, between January 5, 2015, and October 31, 2016, all non-exempt employees, including Plaintiff, were required to record their time on a weekly basis on timecards in an Excel spreadsheet format. Defs.’ SOMF ¶ 35. The Excel spreadsheet timecards included spaces to input times of arrival, times of departure, times of lunch breaks, and any other non-compensable time. Id. At the end of each workweek, non-exempt employees were required to print out these timecards, sign and date them, and then physically submit them to the firm Administrator. Id. ¶ 36.
Beginning November 1, 2016, TOKN moved away from the Excel system to a different timekeeping model. Id. ¶ 38. From that point, non-exempt employees were required to record their weekly time worked electronically via Paycor, a third-party timekeeping system and payroll processor. Id. Like the Excel spreadsheet system, the Paycor system requires non-exempt employees to record their daily times of arrival, departure, meal breaks, and other nonwork related time. Id. ¶ 39.
During Plaintiff's employment with TOKN, all non-exempt employees, including Plaintiff, had opportunities to review any of their "estimated" time entries and provide corrections. Id. ¶¶ 44, 47, 108. These corrections allowed non-exempt employees to receive compensation for any earned overtime pay, which would be deposited the following pay period. Id. ¶¶ 44, 47.
Along with these policies, all non-exempt employees of TOKN, including Plaintiff, were required to notify the firm's receptionist, April Phillips, of their arrival times, departure times, and when they took lunch breaks. Id. ¶¶ 100–101. Phillips would then track this time in what was known internally as the "in/out" sheets. Id. ¶ 101.
B. Plaintiff's Time and Payroll History at TOKN
As mentioned above, Plaintiff worked as a paralegal in TOKN's Collections Department from January 5, 2015, through March 30, 2018. Id. ¶ 1. During most of her employment with TOKN, Plaintiff was directly supervised by Adam L. Cleveland, a former associate attorney who was the head of TOKN's Collections Department from January 5, 2015, until his termination on October 6, 2017. Id. ¶ 51. Once Cleveland was terminated, Plaintiff was supervised by attorney Jeremy Ross until she resigned on March 30, 2018. Id. ¶ 53.
Plaintiff claims that due to the "grueling" conditions in TOKN's Collections Department, she often worked overtime hours for which she was not compensated. Plaintiff's Statement of Additional Material Facts ("Pl.’s SOMF") ¶¶ 3–4 [Doc. 74]. Specifically, Plaintiff claims she worked unpaid overtime during seventy (70) workweeks. [See Doc. 76 at 8]. However, Plaintiff never reported her total alleged uncompensated overtime hours. Defs.’ SOMF ¶ 77. In fact, Plaintiff concedes that she often told the receptionist, April Phillips, that she was on a meal break or had left for the day, but then continued working. Pl.’s SOMF ¶¶ 41, 43; see also Defs.’ SOMF ¶ 100.
Although Plaintiff claims she worked unreported unpaid overtime hours, she also admits that when she did report overtime pay, she received all of her pay every time. Pl.’s Resp. to Defs.’ SOMF ¶¶ 108–110. For example, between March 6, 2016, and October 31, 2016, Plaintiff submitted at least eighteen (18) corrected timesheets, and admits to receiving all her pay, including overtime pay. Id. ¶ 109. Thus, Plaintiff's claims concern only those pay periods when she worked overtime hours but did not report her overtime work.
Because she did not report her alleged uncompensated overtime, Plaintiff claims that the Excel and Paycor timesheets she submitted during her employment are inaccurate and unreliable. [Doc. 76 at 6–8]. Thus, in her verified interrogatory responses, Plaintiff produced a spreadsheet of the "real" workhours she kept between March 21, 2016, through March 16, 2018. Pl.’s Resp. to Defs.’ SOMF ¶¶ 74–76. Although Plaintiff claims these spreadsheets are accurate, she admits they were created retroactively, rather than contemporaneously, and were never actually reported to TOKN as required by the firm's timekeeping policies. Id. ¶ 77. Plaintiff further admits the retroactively created spreadsheets only reflect "an estimate" of her overtime hours worked. Id. ¶ 78. Finally, Plaintiff submits an additional Summary Chart which purports to show the inconsistencies between her timesheets and TOKN's non-payroll records. [Doc. 74-12].
C. Procedural History
Plaintiff initiated this action on March 8, 2019, seeking to recover her alleged unpaid overtime wages from Defendants. See Compl. Specifically, Plaintiff alleges that she worked in excess of forty (40) hours per week for seventy (70) workweeks and was not appropriately compensated for such overtime. See generally id.; [see also Doc. 76 at 8]. After the close of discovery, on November 27, 2019, Defendants filed their "Motion for Summary Judgment" [Doc. 50], and "Motion for Sanctions due to Spoliation of Evidence." [Doc. 51]. On December 3, 2019, Plaintiff filed her "Motion for Partial Summary Judgment as to Defendants’ Seventh Affirmative Defense." [Doc. 55]. Having been fully briefed, these matters are now ripe for the Court's review.
II. Legal Standard for Summary Judgment
The Court begins with the Parties’ cross-motions for summary judgment. The Court first sets out the legal standard before turning to the Parties’ arguments.
"The standard of review for cross-motions for summary judgment does not differ from the standard applied when one party files a motion, but simply requires a determination of whether either of the parties deserves judgment as a matter of law on the facts that are not disputed." GEBAM, Inc. v. Inv. Realty Series I, LLC, 15 F. Supp. 3d 1311, 1315–16 (N.D. Ga. 2013) (citing Am. Bankers Ins. Grp. v. United States, 408 F.3d 1328, 1331 (11th Cir. 2005) ); cf. United States v. Oakley, 744 F.2d 1553, 1555 (11th Cir. 1984) ("Cross-motions for summary judgment will not, in themselves, warrant the court in granting summary judgment unless one of the parties is entitled to judgment as a matter of law on facts that are not genuinely disputed.") (internal quotation omitted). The Court must consider each motion on its own merits, resolving all reasonable inferences against the party whose motion is under consideration. See U.S. ex rel. Saldivar v. Fresenius Med. Care Holdings, Inc., 972 F. Supp. 2d 1339, 1341 (N.D. Ga. 2013). Cross-motions may, however, be probative of the absence of a factual dispute where they reflect general agreement by the parties as to the controlling legal theories and material facts. Id. at 1341.
The Court may grant summary judgment only if the record shows "that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). A factual dispute is genuine if there is sufficient evidence for a reasonable jury to return a verdict in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A factual dispute is material if resolving the factual issue might change the suit's outcome under the governing law. Id. The motions should be granted only if no rational fact finder could return a verdict in favor of the non-moving party. Id. at 249, 106 S.Ct. 2505.
When ruling on a motion for summary judgment, the Court must view all the evidence in the record in the light most favorable to the non-moving party and resolve all factual disputes in the non-moving party's favor. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). The moving party need not positively disprove the opponent's case; rather, the moving party must establish the lack of evidentiary support for the non-moving party's position. See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party meets this initial burden, in order to survive summary judgment, the non-moving party must then present competent evidence beyond the pleadings to show that there is a genuine issue for trial. Id. at 324–26, 106 S.Ct. 2548. The essential question is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251–52, 106 S.Ct. 2505. However, the Court is not obligated to "scour the record" to determine whether triable issues exist. Tomasini v. Mt. Sinai Med. Ctr. of Fla., 315 F. Supp. 2d 1252, 1260 n.11 (S.D. Fla. 2004).
III. Defendants’ Motion for Summary Judgement [Doc. 50]
Having laid out the relevant legal standard, the Court now turns to Defendants’ motion for summary judgment before addressing Plaintiff's motion for partial summary judgment. As mentioned above, Plaintiff seeks to recover alleged unpaid overtime wages. Compl. ¶ 1. Pursuant to the FLSA, an employer must compensate an employee who performs overtime work—work in excess of forty (40) hours per week—in an amount of one and one-half (1.5) times her regular rate. See Allen v. Bd. of Pub. Educ. for Bibb Cty., 495 F.3d 1306, 1314 (11th Cir. 2007) (citing 29 U.S.C. § 207(a)(1) ). An employee who has not received appropriate overtime pay may bring a private FLSA action against the employer for damages. Bailey v. TitleMax of Ga., Inc., 776 F.3d 797, 801 (11th Cir. 2015) (citing 29 U.S.C. § 216(b) ). In order to prevail on an overtime claim, an employee must demonstrate (1) that she worked unpaid overtime and (2) that the employer knew or should have known of her overtime work. Id. (citing Allen, 495 F.3d at 1314–15 ).
A. Established Unpaid Overtime
In an overtime action brought under the FLSA, the plaintiff employee bears the burden of proving that she performed overtime work without appropriate compensation. Allen, 495 F.3d at 1315.
"It is the employer's duty to keep records of the employee's wages, hours, and other conditions and practices of employment." Id. (internal citation omitted). Therefore, "in cases where the employer has kept proper and accurate records of its employees’ hours, the plaintiff-employee may discharge his or her burden of proof simply by producing those records." Stuart v. Resurgens Risk Mgmt., Inc., 2013 WL 2903571, at *8 (N.D. Ga. June 12, 2013) (citing Anderson, 328 U.S. at 687, 66 S.Ct. 1187 ). However, when an employer's records of hours and compensation paid to employees are inaccurate or inadequate, the plaintiff-employee's burden of proof is "relaxed." Estrada v. FTS USA, LLC, No. 1:14-CV-23388-KMM, 2016 WL 6157989, at *3 (S.D. Fla. Oct. 24, 2016) ; see also Allen, 495 F.3d at 1315–16 ("It is the employer's duty to keep records of the employee's wages and hours, if [the employer has] failed to do so and the employee cannot offer convincing substitutes ‘the solution ... is not to penalize the employee by denying him any recovery on the ground that he is unable to prove the precise extent of uncompensated work.’ ") (quoting Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946) ) (alteration adopted).
Because employees are subject to the control of their employers, the remedial nature of the FLSA provides protection for employees by lessening the burden of proof where an employer has failed to maintain accurate and adequate records. Allen, 495 F.3d at 1315–16.
In such a situation, the employee carries her burden by proving that she actually performed work for which she was improperly compensated and producing evidence that allows a just and reasonable inference of the amount and extent of that work. Estrada, 2016 WL 6157989, at *3 (citing Allen, 495 F.3d at 1316 ). The burden then shifts to the employer, who must produce evidence that either (1) shows "the precise amount of work the employee performed" or (2) "negate[s] the reasonableness of the inference to be drawn from the employee's evidence." Allen, 495 F.3d at 1316 (internal quotations omitted).
As an initial issue, the Parties dispute whether Plaintiff has introduced admissible evidence to establish that she actually performed overtime work for which she was not compensated. [See Docs. 76, 85]. Plaintiff has submitted thousands of pages of time records and emails, and a spreadsheet which purportedly shows the inconsistencies between her timecards and non-payroll records (the "Summary Chart"). [See, e.g., Docs. 74-4, 74-5, 74-6, 74-7, 74-8, 74-9, 74-10, 74-11, 74-12]. Although Plaintiff claims this chart establishes that she actually worked uncompensated overtime hours, for the following reasons, the Court finds that the Summary Chart is inadmissible.
Pursuant to Rule 1006 of the Federal Rules of Evidence :
The proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court. The proponent must make the originals or duplicates available for examination or copying, or both, by other parties at a reasonable time and place.
FED. R. EVID. 1006. Additionally, Rule 1006 imposes five (5) requirements for a summary chart, such as that proffered by Plaintiff here, to be admissible:
(1) the underlying documents are so voluminous that they cannot be conveniently examined in court; (2) the proponent of the summary must have made the documents available for examination or copying at a reasonable time and place; (3) the underlying documents must be admissible in evidence; (4) the summary must be accurate and nonprejudicial; and (5) the summary must be properly introduced through the testimony of a witness who supervised its preparation.
Glock, Inc. v. Glob. Guns & Hunting, Inc., No. 1:12-CV-136-MHS, 2015 WL 13614255, at *8–9 (N.D. Ga. Mar. 30, 2015) (citing United States v. Moon, 513 F.3d 527, 545 (6th Cir. 2008) ); FED. R. EVID. 1006.
Here, the Court finds that Plaintiff's Summary Chart does not satisfy the fourth admissibility requirement of Rule 1006 —that the summary must be accurate and non-prejudicial. See Glock, 2015 WL 13614255, at *9 ; [see also Doc. 76-12]. In fact, Plaintiff's Summary Chart does not summarize the content of the underlying records, but rather appears to present arguments in support of Plaintiff's position that she worked overtime. [See Doc. 76-12]. This is an improper usage of Rule 1006. See Glock, 2015 WL 13614255, at *9 (excluding spreadsheet where plaintiff failed to establish its contents were non-prejudicial and accurately reflected the underlying documents).
Additionally, the Court notes that Plaintiff's Summary Chart is impossible to verify and contains inaccuracies on its face. For example, Plaintiff indicates in many different rows that she worked "off the clock" because she sent emails during times when she was supposedly at lunch or clocked out for the day. [See generally Doc. 76-12]. But there is no supporting explanation as to whether the emails she worked on during these times were work-related or personal. Plaintiff also fails to include other necessary information, i.e., how long it took for her to "work" on any of these emails. [See Docs. 76, 74-12]. Accordingly, the Court concludes that Plaintiff has not sufficiently demonstrated the accuracy and non-prejudicial nature of her Summary Chart to satisfy the admissibility requirements of Rule 1006. See Fed. R. Evid. 1006.
Consequently, pursuant to the fourth requirement of Rule 1006, the Court finds that Plaintiff has failed to produce any admissible documentation of the overtime hours she allegedly worked. Accordingly, the relevant questions at hand are whether Plaintiff has created a genuine issue of fact that Defendant TOKN's records are unreliable, and if so, whether Plaintiff has created a genuine issue as to the amount and extent of her overtime work as a matter of just and reasonable inference.
Here, the Parties dispute the accuracy and reliability of the time records kept by Defendant TOKN. [See Docs. 50-1, 76, 85]. As discussed above, Plaintiff has produced her own retroactively created spreadsheets which she claims create a genuine issue of material fact as to the reliability of TOKN's time records. [See Doc. 50-9 at 136–150]. She further claims that TOKN's Excel and Paycor timecards do not accurately reflect the time that she worked and cites to Allen, 495 F.3d 1306, and Kuebel v. Black & Decker Inc., 643 F.3d 352 (2d Cir. 2011) in support. [Doc. 76 at 8, 19].
However, Plaintiff's reliance on these cases is misplaced because they are both distinguishable from the facts at hand. In Kuebel, the plaintiff demonstrated that his employer's records were inaccurate because he was instructed by his manager to inaccurately record his hours. See 643 F.3d at 363. Thus, the inaccuracy in the records was a result of the employer's non-official policy of encouraging the plaintiff to underreport his hours worked. Id. However, in the instant matter, Plaintiff has not proven that an unofficial policy encouraging underreporting existed at the time of her employment. As further explained below, Plaintiff cannot rely on upon any purported statement by Stuckey—TOKN's former firm Administrator—to prove there was an unofficial policy promoting underreporting of hours, because any such statement constitutes inadmissible hearsay. See infra Section III(B).
Further, Plaintiff's reliance on Allen is also misplaced. In Allen, several plaintiffs testified that they were discouraged from accurately recording their overtime hours through statements from supervisors that they would not get paid for any overtime work. 495 F.3d at 1316. Other employee-plaintiffs in Allen testified that when they did submit overtime hours, they were told to "take back their accurate time sheets and resubmit new timesheets[.]" Id. Moreover, several employee-plaintiffs testified that "when they submitted time sheets to the [employer] that showed overtime work, those time sheets were destroyed." Id. at 1317. Thus, the Eleventh Circuit held that there was a genuine question of material fact as to the reliability of the employer's timekeeping records. Id. at 1317–18.
However, this case is readily distinguishable from Allen. Plaintiff has not presented any evidence that anyone altered her timesheets or refused to accept them for any overtime hours she reported. [Doc. 76 at 19]. Instead, Plaintiff claims that her timecards are inaccurate because of an unwritten policy of underreporting—but she fails to support that contention with any admissible evidence. [Id. ]
In sum, the admissible evidence in this case demonstrates that: (1) Plaintiff was subject to the policies of TOKN's Employee Handbook; (2) TOKN's Employee Handbook prohibited "off-the-clock" work; (3) Plaintiff had opportunities to correct her timesheets to report overtime, and did so at least twenty (20) times; (4) Plaintiff received overtime pay every time she officially reported it; and (5) none of Plaintiff's Excel or Paycor timesheets were ever rejected, tampered with, or altered. Pl.’s Resp. to Defs.’ SOMF ¶¶ 20, 23–33, 62–63, 108–110. Based on the foregoing, the Court finds that Plaintiff fails to establish that an issue of material fact exists regarding the reliability of TOKN's timekeeping records. Allen, 495 F.3d at 1315–16. Because Plaintiff fails to establish the unreliability of the records and no admissible evidence supports Plaintiff's argument that she was improperly compensated for overtime hours worked, Defendants are entitled to summary judgment.
B. Actual or Constructive Knowledge
Even assuming, arguendo , that a genuine issue of fact exists as to whether TOKN's records can be trusted, the Court further finds that Plaintiff has not established that Defendants "knew or should have known of [her] overtime work." Bailey, 776 F.3d at 801.
An employee carries her burden if she produces evidence sufficient to allow a reasonable jury to conclude that the employer had actual or constructive knowledge of her overtime work. See Allen, 495 F.3d at 1318 ; cf. Segraves v. AGCO, Inc., 2018 WL 3772397, at *4 (N.D. Ga. Aug. 9, 2018) (an employee fails to carry this burden when the employee provides no evidence indicating that the employer knew, or had reason to believe, that an employee performed overtime work). Actual knowledge can be presumed when plaintiffs or other employees testify that they worked overtime hours and notified their supervisors that they had not received the appropriate compensation. Allen, 495 F.3d at 1318 ; see also Jarmon v. Vinson Guard Servs., No. 2:08-CV-2106-VEH, 2010 WL 11507029, at *11 (N.D. Ala. July 13, 2010) (finding that a genuine issue of material fact remains when an employee complains to his manager or employer that he was not receiving appropriate compensation for overtime hours worked). Constructive knowledge can be presumed even if an employer does not have actual knowledge of an employee's overtime work, if the employer had reason to believe that the employee was working beyond her shift. Allen, 495 F.3d at 1319 (citing 29 C.F.R. § 785.11). Thus, an employee may survive summary judgment by providing evidence that her employer and supervisor were aware or should have been aware of her overtime work. See id. at 1320.
Here, the Court finds that Plaintiff has failed to establish that Defendants possessed either actual or constructive knowledge of her unreported overtime hours. The Court discusses each below.
1. Actual Knowledge
As to Defendants’ actual knowledge of Plaintiff's alleged uncompensated overtime work, the Court finds no issue of material fact remains. Although Plaintiff claims that Defendants "knew" of her unreported overtime work, the Court finds no admissible evidence in the record that demonstrates the firm "actually knew" that Plaintiff was working uncompensated overtime. Plaintiff never reported to a supervisor that she was working uncompensated overtime. In fact, Plaintiff admits she often misrepresented to April Phillips, the receptionist, that she was on a break and would nevertheless continue to work. See Allen, 495 F.3d at 1319 ("There is no violation of the FLSA where the employee performs uncompensated work but deliberately prevents [ ] her employer from learning of it."). Accordingly, the Court finds that Plaintiff has not demonstrated a genuine issue of material fact exists as to Defendants’ actual knowledge.
2. Constructive Knowledge
Plaintiff also argues that Defendants had constructive knowledge because they should have known she was working uncompensated overtime. [Doc. 76 at 15–21]. To support this contention, Plaintiff claims: (1) TOKN had an unwritten policy encouraging uncompensated overtime; (2) Plaintiff complained of the voluminous workload at the firm to the firm Administrator; and (3) TOKN's time records are inconsistent. [Id. at 10–20]. Upon review, the Court disagrees that Defendants had constructive knowledge of Plaintiff's uncompensated overtime work. Regarding Plaintiff's first allegation of an unwritten policy, there is no admissible evidence that creates an issue of material fact on that issue. Plaintiff's main evidence for this "unwritten policy" is an alleged statement made by former firm Administrator Elizabeth Stuckey. [Doc. 76 at 10–12]; Pl.’s SOMF ¶ 5. According to Plaintiff, Stuckey told her that "paralegals were not to report more than a minimal amount of overtime regardless of the amount of time they worked." Pl.’s SOMF ¶ 5.
However, the Court notes that any such purported statement by Stuckey is inadmissible hearsay and unsupported by the record evidence. First, TOKN's Employee Handbook, which governs the policies of the firm, denounces any such policy. See Employee Handbook at 26 (noting that non-exempt employees are prohibited from performing "off-the-clock" work). Second, Stuckey expressly denounces ever making such a statement. See Decl. of Elizabeth "Lisha" H. Stuckey ("Stuckey Decl.") ¶¶ 8–11 [Doc. 50-7]. Third, even if such a statement were made, Stuckey lacked the authority to modify or implement any time-reporting policy because that power belongs exclusively to TOKN's board of directors. See Defs.’ SOMF ¶ 12; Decl. of Aaron Kappler ¶ 11 [Doc. 5-5]; Stuckey Decl. ¶ 7. Thus, any alleged statement was not "authorized" or "within the scope" of Stuckey's employment, and accordingly, is mere hearsay. See FED. R. EVID. 801(d)(2)(C)–(D).
As for Plaintiff's second argument—that Defendants had constructive knowledge because Plaintiff complained of the voluminous workload to the firm Administrator—the Court finds this argument equally unavailing. Plaintiff states that she and other staff members occasionally discussed the heavy workload with firm Administrator Beams. [Doc. 76 at 13]. But Plaintiff admits that she never specifically told Administrator Beams that she had been working more than forty (40) hours and had not been paid for that time. Dep. of Amy Loiseau at 137:23–138:14 [Doc. 54]. There is no evidence that Plaintiff ever reported her off-the-clock activity to any supervisor, and in fact, Plaintiff admits to concealing it (by informing the receptionist she was on break while continuing to work). As stated in Allen, "[t]here is no violation of the FLSA where the employee performs uncompensated work but deliberately prevents [ ] her employer from learning of it." 495 F.3d at 1319.
Finally, as for Plaintiff's third argument—that TOKN's time records are inconsistent—the Court finds this contention to be meritless. As the Court discussed above, Plaintiff has not succeeded in demonstrating that TOKN's timekeeping system is inaccurate.
For the aforementioned reasons, the Court finds no genuine issue of material fact exists as to whether Defendants had actual or constructive knowledge of Plaintiff's alleged uncompensated overtime work. Accordingly, summary judgment is appropriate for Defendants. Allen, 495 F.3d at 1323 (finding summary judgment for employers appropriate where employee testified that she worked unpaid hours on her own accord but did not inform anyone of her overtime work). Based on this ruling, the Court denies as moot Defendants’ "Motion for Sanctions Due to Spoliation of Evidence" [Doc. 51] and Plaintiff's "Motion for Partial Summary Judgment as to Defendants’ Seventh Affirmative Defense." [Doc. 55]. IV. Conclusion
The issues presented in both motions are moot because Plaintiff's motion related to Defendants’ Seventh Affirmative Defense, while Defendants’ motion requested an adverse inference instruction during trial due to alleged spoliation of evidence. [See Docs. 51, 55].
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For the reasons stated herein, the Court GRANTS Defendants’ "Motion for Summary Judgement" [Doc. 50]; DENIES AS MOOT Defendants’ "Motion for Sanctions Due to Spoliation of Evidence" [Doc. 51]; and DENIES AS MOOT Plaintiff's "Motion for Partial Summary Judgment as to Defendants’ Seventh Affirmative Defense." [Doc. 55]. The Court DIRECTS the Clerk to ENTER JUDGMENT in favor of Defendants and to CLOSE this case.
SO ORDERED , this 9th day of November, 2020.