Baker v. Lake Mary Surgery Center, L.L.C., et al

REPLY to Response to Motion re MOTION for summary judgment

M.D. Fla.September 4, 2018

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION KARA BAKER, Plaintiff, v. Case No. 6:17-cv-01456-PGB-KRS LAKE MARY SURGERY CENTER, LLC, ET AL., Defendants. / REPLY MEMORANDUM OF DEFENDANTS IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT The Court must grant Defendants’ Motion for Summary Judgment because: 1. Plaintiff has failed to meet her burden of proving Defendants did not pay her overtime for time worked over forty (40) hours in any workweek. The “examples”1 offered by Plaintiff purporting to show unpaid overtime, in actuality, do not remotely establish any unpaid overtime, and must be disregarded as a matter of law; and 2. Plaintiff concedes she did not engage in any protected activity under the FLSA that was followed by any adverse employment action; specifically, Plaintiff’s record evidence firmly establishes that she abandoned her position after Defendants informed Plaintiff they could not accommodate her changed school schedule for the semester. I. PLAINTIFF BEARS THE BURDEN OF PROVING UNCOMPENSATED WORK “The FLSA places upon the employee-plaintiff ‘the burden of proving that [s]he performed work for which [s]he was not properly compensated.”’ Lamonica v. Safe Hurricane Shutters, Inc., 711 1 In a footnote, Plaintiff contends, “There are many pages of records produced between the parties showing unpaid overtime being worked by Baker.” (Dkt. 68, p. 6, n. 3.) Inexplicably, rather than make any of this alleged evidence part of the summary judgment record, Plaintiff only offers what she considers her best “examples” of instances of alleged unpaid overtime for “brevity.” (Dkt. 68, p. 6, n. 3.) This is absurd and wholly insufficient to defeat summary judgment, which relies upon the “record” evidence and not an assertion that there exists some other evidence not provided. Case 6:17-cv-01456-PGB-KRS Document 65 Filed 09/04/18 Page 1 of 11 PageID 1326 2 F.3d 1299, 1315 (11th Cir. 2013) (citing Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 686-87 (1946)). In opposition to summary judgment, Plaintiff tries to shift this burden on Defendants based on her position that Defendants’ records are inadequate. A more relaxed burden for an FLSA plaintiff is appropriate where the employer has failed to keep records, or because the records cannot be trusted. See Anderson, 328 U.S. at 686-87. However, the burden-shifting scheme of Anderson does not negate a FLSA plaintiff’s burden to show uncompensated work. The “burden-shifting” framework applies only after “‘an employee has carried out h[er] burden”’ by “‘prov[ing] that [s]he has in fact performed work for which [s]he was improperly compensated and . . . produc[ing] sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.”’ Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1047 (2016) (citing Anderson, 328 U.S. at 686-87). Then, the burden shifts to the employer to “negate the reasonableness of the inference,” but this is true if, and only if, the employer’s records are not adequate and cannot be trusted. Anderson, 328 U.S. at 686-87. Plaintiff has not challenged the trustworthiness of Defendants’ records other than suggesting that Defendants did not maintain accurate records. She states, Defendants “allowed” a “plethora of different disorganized systems” to report her time via time clock, e-mail, text message, written paper, phone call, time card exception sheet or Post-It Note (none of which she complained about during her employment). (Dkt. 68, p. 11.) Plaintiff admits the only reason she submitted her time in this fashion was because she improperly neglected to clock in/out using the time clock, worked at a different center, or worked from home. (Dkt. 59-4, Baker 15: 6-19; 48: 19-25.)2 Moreover, it is undisputed that Defendants maintained a policy to insure accurate reporting of time, and that employees were to contact payroll, human resources, or their supervisors if any errors were made. (Dkt. 59-4, Baker 102: 1-6, 107: 5-25, 111: 7-13, Def’s Ex. 5.) Plaintiff admits no one employed by Defendants told her she should 2 Importantly, where Plaintiff reported time edits or additional time was reported timely to her supervisors through any means, her supervisors would add Plaintiff’s reported work time to her time card to insure she was paid properly, and where her hours exceeded forty (40) hours in any workweek, she received overtime pay. (Dkt. 59-8, Sturm ¶ 5; Dkt. 59-3, Przychocki ¶ 7; and Dkt. 59-9, Geiger ¶ 3.) Case 6:17-cv-01456-PGB-KRS Document 65 Filed 09/04/18 Page 2 of 11 PageID 1327 3 not provide accurate time records, or that anyone employed by Defendants did not permit her to properly record her time. (Dkt. 59-4, Baker 86: 21-25; 87: 1-19; 102: 7-23.) Plaintiff herself verified her time records and had the opportunity to challenge her supervisor if her hours incorrectly reflected the amount of time she worked (which she did). (Dkt. 59-4, Baker 16: 21-25; 17: 1-10.) Under the FLSA, employers are required to keep adequate records reflecting the number of hours worked by employees. Anderson, 328 U.S. at 687. This requirement is met where all information called for is recorded at some place. Walling v. Silver Fleet Motor Exp., 67 F. Supp. 846, 855 (W.D. Ky. Sept. 20, 1946). The record evidence clearly demonstrates that Defendants met the standard for adequate record- keeping. The cases where courts have applied a relaxed burden of proof for this reason are based on remarkably different facts. In opposition to summary judgment, Plaintiff cites to Murray v. Birmingham Bd. Of Educ., 172 F. Supp. 3d 1225 (N.D. Ala. Sept. 12, 2016). In Murray, the employer’s records contained time sheets that were noticeably altered. See id. The edits were “substantial” and subtracted hours of time. Id. Employees also testified supervisors directed them to work off-the-clock before they scanned in for the day. See id. Plaintiff makes none of these allegations.3 Contrary to Plaintiff’s position, Defendants’ records reflect the “strong documentary evidence” required by the Court in Estrada v. FTS USA, LLC, 2016 WL 6157989, *5 (S.D. Fla. Oct. 24, 2016). The employer in Estrada, like Defendants, maintained a policy that required payment for all hours worked, and allowed employees to verify the account of time reflected on the timesheets and alert a supervisor if the hours incorrectly reflected the amount of time the employee worked. See id. at *3. 3 In Allen v. Bd of Public Educ. for Bibb City, the Eleventh Circuit applied Anderson’s relaxed burden of proof where the employer’s records contained time sheets that were destroyed or capriciously altered. 495 F.3d 1306, 1316 (11th Cir. 2007). Moreover, in Allen, the employees testified they “were told not to record their overtime hours because the Board would not pay them overtime” and, when they did record overtime hours, they were to “resubmit new time sheets that reflected their scheduled, not actual, hours. Id. At least one employee said that time sheets were “torn up” if they reflected overtime work, and another said the employer would “white out” time worked. Id. Plaintiff neglected to cite this seminal case. Again, none of these facts are present in this case. Case 6:17-cv-01456-PGB-KRS Document 65 Filed 09/04/18 Page 3 of 11 PageID 1328 4 In Estrada, as in our present case, the time records provided by Defendants are consistent with the work time (including overtime) provided by Plaintiff to her supervisor and “serves only to undermine [Plaintiff’s] contention that [Defendants’] records are inaccurate.” Id. at *4. Thus, Plaintiff should be held to her burden of proving uncompensated overtime work, which Plaintiff has failed to, and cannot, do. II. PLAINTIFF HAS FAILED TO MEET HER BURDEN THAT SHE WAS NOT COMPENSATED BY DEFENDANTS FOR ALL HOURS WORKED A. PLAINTIFF’S CONCLUSORY SELF-SERVING HEARSAY MUST BE DISREGARDED AS A MATTER OF LAW 1. Plaintiff’s Interrogatory Responses and Spreadsheet Attached Thereto (Pl’s Ex. 1) In opposing summary judgment, Plaintiff relies nearly solely upon her own self-serving hearsay evidence contained in her June 11, 2018 Interrogatory Responses and accompanying summary spreadsheet created after her termination. Plaintiff provides no contemporaneously created documents or information or any other exception to hearsay making this “evidence” material or probative to overcome summary judgment. Interrogatory responses, like Plaintiff’s, may not be used to defeat summary judgment. See Grace & Co. v. City of Los Angeles, 278 F.2d 771, 776 (9th Cir.1960) (At summary judgment, “[n]ormally, a party may not introduce his self-serving answers to an opponent’s interrogatories.”); Lobel v. American Airlines, 192 F.2d 217, 221 (2nd Cir. 1951) (same). Furthermore, if the responses have been contradicted by Plaintiff’s deposition testimony, like here, they cannot be considered by this Court. Jones v. UPS Ground Freight, 683 F.3d 1283, 1294 (11th Cir. 2012) (If “the declarant has given sworn testimony during the course of discovery that contradicts the hearsay statement, we may not consider the hearsay statement at the summary judgment phase.”). The contradiction of evidence amounts only to “a suggestion that admissible evidence might be found in the future,” which “is not enough to defeat a motion for summary judgment.” McMillian v. Johnson, 88 F.3d 1573, 1584 (11th Cir. 1996). Here, Plaintiff “attests” to “many weeks of overtime hours worked for which she was not compensated” and refers to the summary spreadsheet that further Case 6:17-cv-01456-PGB-KRS Document 65 Filed 09/04/18 Page 4 of 11 PageID 1329 5 details Plaintiff’s claims. (Dkt. 68, p. 11.) But, Plaintiff testified that this spreadsheet was created by her counsel based on alleged documents and/or a different privileged spreadsheet that Plaintiff has never produced and is not record evidence before the Court. (Dkt. 68, p. 11, Ex. 1, ¶¶ 3-5.)4 At deposition, Plaintiff could not testify to any specific day or hours on the spreadsheet when questioned. (See Plaintiff’s Deposition Excerpt attached as Exhibit A, Baker 115: 1-10.) Thus, Plaintiff’s responses incorporating this inadmissible hearsay is demonstrative and cannot defeat summary judgment. 2. Plaintiff’s May 2016 and February 2017 Annotated Time Records (Pl’s Exs. 10-11) Plaintiff also asserts that, “[a]t times, Baker would correct her time entries prior to Defendants paychecks” and “Defendants did not always correct her pay to match the actual time she worked.” (Dkt. 68, p. 6.) Plaintiff attempts to support this conclusory allegation with “contemporaneous edits to her time entries” for pay periods 5/22/2016 to 6/04/2016 and 2/26/20127 to 3/11/2017. (Dkt. 68, Pl’s Exs. 10-11.) However, Plaintiff provides no evidence she ever submitted any of these annotated time records to Defendants to correct her pay, as necessary. To prove an unpaid-overtime claim, Plaintiff must show “the [employer] knew or should have known of the overtime work.” Allen, 495 F.3d at 1314-15 (emphasis added). Importantly, Plaintiff does not allege in her response or show that any tertiary evidence exists from which Defendants would have known of the edits.5 Moreover, Plaintiff admits that she did not provide accurate time records, and because she worked remotely at times, there is no way that her supervisors would have known of these edits. Plaintiff’s reference to these annotated time records, with no record evidence that Defendants 4 At deposition, Plaintiff admitted the spreadsheet was created by one of her attorneys in this case, Robert Sutton, based on a different – not disclosed – spreadsheet that Plaintiff provided to counsel who objected as attorney-client privileged information. (Dkt. 59-4, Baker 113:23-25.) 5 Knowledge may only be imputed to the employer when its supervisors or management “encourage[ ] artificially low reporting.” See id. at 1319. No facts here support such an inference. Again, Plaintiff admits no one employed by Defendants told her she should not provide accurate time records. (Dkt. 59-4, Baker 86: 21-25; 87: 1-19. Plaintiff does not claim that anyone employed by Defendants did not permit her to properly record her time. (Dkt. 59-4, Baker 102: 7-23.) Case 6:17-cv-01456-PGB-KRS Document 65 Filed 09/04/18 Page 5 of 11 PageID 1330 6 ever were aware of them, is pure hearsay and cannot defeat Defendants’ motion for summary judgment. See McCaskill v. Ray, 279 Fed. Appx. 913, 914 (11th Cir.2008). B. PLAINTIFF’S NINE (9) PHONE CALLS AND TWO (2) SUNDAY E-MAILS TO A CO-WORKER ARE DE MINIMUS AND MUST BE DISREGARDED AS A MATTER OF LAW 1. Plaintiff’s Phone Calls (Pl’s Exs. 2-7) Interestingly, Plaintiff provides her Verizon phone records wherein she highlights nine (9) phone calls lasting a total of 18 minutes to/from Plaintiff and her supervisors, Christina Geiger and Meagan Przychocki, over a nineteen (19) month period of time. It is Plaintiff’s position these calls occurred before her clock-in for that day. The longest phone call is 6 minutes long, and the eight others last 1-2 minutes. Plaintiff has failed allege these 1-2 minute phone calls were conversations or merely voicemail messages, or that any of these phone calls were work related. Plaintiff is grasping: First, at the time these telephone calls occurred, Plaintiff had not completed her time cards for that day and was the individual in the best position to record the calls and include them in her time for the pay period. However, she did not. Second, there is no increment of time that would be prohibited under the FLSA’s rounding rules and are de minimis. Under the FLSA, “[i]n recording working time under the Act, insubstantial or insignificant periods of time beyond the scheduled working hours, which cannot as a practical administrative matter be precisely recorded for payroll purposes, may be disregarded. The courts have held that such trifles are de minimis.” 29 C.F.R. § 785.47. “An important factor in determining whether a claim is de minimis is the amount of daily time spent on the additional work.” Lindow v. United States, 738 F.2d 1057, 1062 (9th Cir.1984) (emphasis added). “[C]ommon sense must be applied to the facts of each case. Most courts have found daily periods of approximately 10 minutes de minimis even though otherwise compensable.” Id. at 1062. Plaintiff’s alleged telephone calls are clearly de minimus. 2. Plaintiff’s Two (2) Sunday October 4, 2015 E-mails With Co-Workers (Pl’s Ex. 8) Case 6:17-cv-01456-PGB-KRS Document 65 Filed 09/04/18 Page 6 of 11 PageID 1331 7 Plaintiff also submits two Sunday, October 4, 2015, e-mails in support of her claims. However, again, the time can only be considered de minimus. First, Plaintiff’s timecard shows that Plaintiff was clocked-in and working when the first e-mail was sent on Friday, October 2, 2015 (and paid for the time) (Pl’s Ex. 8). Plaintiff’s only response on Sunday October 4 was “Thank you, Kristen.” Importantly, as to the additional, second Sunday e-mail late on the evening of October 4 to Plaintiff’s co-worker, Lorie Lanier, there is no evidence that any of Plaintiff’s supervisors6 or the Payroll Administrator, were aware of it, or that Plaintiff requested the time be corrected. There is no record evidence that Defendants had any reason to know that Plaintiff was working on October 4, 2015. See Allen, 495 F.3d at 1314-15 (11th Cir. 2007) (Plaintiff must show “the [employer] knew or should have known of the overtime work.”). Even so, this second e-mail is also de minimus and must be disregarded. A. PLAINTIFF’S SEPTEMBER 11, 2015 EDIT TO HER TIME (PL’S EX. 9) DID NOT AMOUNT TO OVERTIME AND MUST BE DISREGARDED AS A MATTER OF LAW The last of the “examples” Plaintiff provides is a Friday, September 11, 2015, 5:23 pm e-mail from Plaintiff to Plaintiff’s supervisor Przychocki’s personal e-mail address asking Przychocki to “just duplicate last pay period’s” hours. (Dkt. 68, Pl’s Ex. 9.) Przychocki did exactly what Plaintiff requested. The pay period from which Plaintiff requested Przychocki to “duplicate” was 8/16/2015 to 8/29/2015, and reflected nine (9) hours per day Monday-Friday, resulting in ten (10) hours overtime. (Dkt. 68, Pl’s Ex. 9, DEF005483.) As Plaintiff requested, Przychocki reflected nine (9) hours for each working day 8/30/2015 to 9/12/2015. (Dkt. 68, Pl’s Ex. 9, DEF005486.) However, Monday, September 7, 2015, was the Labor Day holiday, and Plaintiff received holiday pay for eight (8) hours. (Dkt. 68, Pl’s Ex. 9, DEF005486.) Holiday hours are not hours worked under the FLSA, and they do not count toward overtime. Thus, Plaintiff was paid correctly for this two week pay period five (5) 6 Plaintiff has stipulated that her only supervisors while employed by Defendants were Christina Geiger, Meagan Przychocki, and Angela Sturm. See Dkt. 67. Case 6:17-cv-01456-PGB-KRS Document 65 Filed 09/04/18 Page 7 of 11 PageID 1332 8 hours of overtime. Plaintiff never questioned, complained, or in any way asserted contemporaneously or in opposition to summary judgment that she performed work on that Labor Day.7 C. PLAINTIFF CANNOT DEMONSTRATE THAT SHE WAS SUBJECTED TO ANY UNLAWFUL RETALIATION AS A MATTER OF LAW A. DECEMBER 2015 E-MAIL IS NOT A COMPLAINT REGARDING UNPAID OVERTIME AND IS NOT STATUTORILY PROTECTED ACTIVITY AS A MATTER OF LAW In December 2015, Plaintiff e-mailed payroll to insure that she was paid on December 5, 2015 for time she worked on a Saturday in the previous pay period. (Dkt. 68, Pl’s Exs. 12-15.) A review of Plaintiff’s time records reveals that Plaintiff was paid for her November 21, 2015, Saturday work, receiving 9.25 hours of premium pay overtime entered on the time card on Saturday, December 5, 2015. (Dkt. 59-3, Przychocki ¶ 15, Ex. A, Def 000021-000022.)8 Plaintiff does not dispute being paid for the time she worked, and testified that she believed she was paid for her work time for this procedure with Dr. Gupta during a different pay period.9 This is not protected activity -- Plaintiff does not specifically complain about the failure to be compensated for overtime work. Rather, Plaintiff requested that she be paid on a different pay date than the day she worked after the payroll period closed. See Foy v. Pat Donalson Agency, 946 F. Supp. 2d 1250, 1275-76 (N.D. Ala. May 22, 2013) (complaining about not getting paid “promptly” and “regularly” is not a complaint about the failure to be compensated for overtime work and not protected activity). Moreover, Plaintiff’s inquiry cannot support a claim for retaliation, because it is in no way temporally related to Plaintiff’s separation over 7 Przychocki followed Plaintiff’s directions despite Plaintiff failing to record her time for an entire two week pay period, sent the request to Przychocki’s personal (as opposed to work) e-mail address, and late reported her time after business hours on the last day of the pay period. Indeed, these facts alone demonstrate that Defendants made every effort to insure Plaintiff was paid all overtime owed even when reported at the eleventh-hour, outside normal business methods to do so. 8 Plaintiff testified that she worked 9.25 hours for Dr. Gupta on Saturday, November 21, 2015, but then failed to notify her then supervisor, Geiger, until after the pay period had closed and her paycheck had been processed (Dkt. 59-4, Baker 251: 13-17; Dkt. 59-9, Geiger ¶ 4.) 9 Specifically, Plaintiff was asked and answered as follows: Q. Ms. Baker, are you saying that you believe you were paid several pay periods after the fact for the time that you worked with Dr. Gupta? Is that what you were just saying in the answer? A. I thought I was, but I don’t see it here. (Dkt. 59-4, Baker 251: 13-17.) Case 6:17-cv-01456-PGB-KRS Document 65 Filed 09/04/18 Page 8 of 11 PageID 1333 9 fifteen (15) months later. Raspanti v. Four Amigos Travel, Inc., 266 Fed. Appx. 820, 824 (11th Cir. 2008). B. FALL 2016 CONVERSATION WITH PRZYCHOCKI IS NOT A COMPLAINT REGARDING UNPAID OVERTIME AND IS NOT STATUTORILY PROTECTED ACTIVITY AS A MATTER OF LAW Next, Plaintiff attempts to manipulate a fall 2016 conversation with Przychocki into one about unpaid lunches. However, when asked about her conversation with Przychocki, Plaintiff testified this conversation was about her Saturday work for Dr. Gutpa the year prior in November 2015.10 There is no discussion of any alleged unpaid lunches by Geiger, but rather, Plaintiff relives the resolved delayed payment of November 2015. Plaintiff’s attempt to bootstrap a conversation about a past, rectified, one- time issue occurring a year before, is not protected activity. Even taking this alleged fall 2016 conversation in the light most favorable to Plaintiff, such an alleged complaint is in no way temporally related to Plaintiff’s separation over six (6) months later. Raspanti, 266 Fed. Appx. at 824. This standard requires that the actions be “very close.” Id. (citing Clark County Sch. Dist. v. Breden, 532 U.S. 268, 273-74 (2001)). A delay of three to four months does not suffice. Id. C. DEFENDANTS INFORMED PLAINTIFF HER SCHOOL SCHEDULE COULD NOT BE ACCOMMODATED BEFORE PLAINTIFF INFORMED PRZYCHOCKI SHE WAS INTERRUPTED AT LUNCH On April 10, 2017, Plaintiff provided Przychocki with a proposed school schedule for classes each Monday and Wednesday from 1 p.m to 6 p.m. (Dkt. 59-3, Przychocki ¶ 18.) Now, Plaintiff alleges she only needed two hours off per week (Dkt. 68, p. 17) – this allegation is unsupported by her own testimony; wherein she alleged that she needed eight (8) hours per week. (See generally, Dkt. 59.) 10 Plaintiff actually testified, Q. Okay. What did you specifically say about changing your time? A. In that particular conversation? Q. Yeah, to Megan. A. Christy was going – Christy didn’t pay me on that Saturday. I explained that story that we’ve talked about with working with Gupta. (Dkt. 59-4, Baker 220: 12-14.) Case 6:17-cv-01456-PGB-KRS Document 65 Filed 09/04/18 Page 9 of 11 PageID 1334 10 A week later, on April 17, 2017, Przychocki instructed via e-mail three (3) employees, Kristen Lee, Rebecca Haga, and Plaintiff, stating that they were to take a thirty (30) minute lunch each day. (Dkt. 68, Pl’s Ex. 17.) On April 20, 2017, Przychocki informed Plaintiff that her class schedule could not be accommodated because the schedule presented by Plaintiff did not meet the needs of the center. (Dkt. 68, Pl’s Ex. 18.; Przychocki ¶ 18). Przychocki asked Plaintiff if she wanted to work on a per diem basis in a different job at Park Place, and whether Plaintiff could switch to the night program for her classes, both of which Plaintiff rejected. (Dkt. 68, Pl’s Ex. 18-19.; Przychocki ¶ 18). Four days later, on April 24, 2017, Plaintiff responded to Przychocki’ s April 17 e-mail regarding lunches. (Dkt. 68, Pl’s Ex. 17.) Plaintiff advised, notwithstanding the e-mail instruction, she worked through her lunch on April 17, 2017, and on April 18 and 19, her lunch was interrupted by staff. (Dkt. 68, Pl’s Ex. 17.) That same day, Przychocki responded that the expectation going forward was that she take a thirty (30) minute lunch each day, and if Plaintiff is interrupted by staff, to advise them she is at lunch and to follow up with them after her lunch break is over. (Dkt. 68, Pl’s Ex. 17.) Importantly, Plaintiff was paid for each “no lunch” she reported on April 17, 18, and 19, 2017. (Dkt. 59-3, Przychocki, Ex. A, DEF000094.) More importantly, Plaintiff’s April 24, 2017 e-mail complaining about her lunch times is not a statutorily protected complaint regarding unpaid overtime. See Foy v. Pat Donalson Agency, 946 F. Supp. 2d at 1275 (general complaints about pay related issues not protected).11 Plaintiff reported to work the next day on April 25 and then abandoned her job -- she assumes she was terminated but she was not. Plaintiff’s claim of retaliation fails, and Defendants are entitled to judgment as a matter of law on this claim. 11 Even if Plaintiff could establish a prima facie case, her claim of retaliation still fails because she cannot rebut Defendants’ legitimate non-retaliatory reasons for not accommodating her school scheduling, namely that the centers required a full time Materials Manager. Jackson v. Ala. State Tenure Comm’n, 405 F.3d 1276, 1289 (11th Cir. 2005) (quoting Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981)) (internal quotation marks omitted). Plaintiff must establish pretext. Crawford v. City of Fairburn, 482 F.3d 1305, 1308 (11th Cir. 2007). Plaintiff has not and cannot do this, as she knows of no other Materials Manager who requested a similar school schedule, but was accommodated. Case 6:17-cv-01456-PGB-KRS Document 65 Filed 09/04/18 Page 10 of 11 PageID 1335 DATED this 4th day of September, 2018. Respectfully submitted, /s/ Jennifer Monrose Moore WILLIAM E. GROB Florida Bar No. 0463124 E-mail: william.grob@ogletree.com JENNIFER MONROSE MOORE Florida Bar No. 035602 E-mail: jennifer.moore@ogletree.com RACHEL A. MORRIS Florida Bar No. 091498 E-mail: rachel.morris@ogletree.com OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 100 North Tampa Street, Suite 3600 Tampa, Florida 33602 Telephone: 813.289.1247 Facsimile: 813.289.6530 ATTORNEYS FOR DEFENDANTS CERTIFICATE OF SERVICE I HEREBY CERTIFY that on September 4, 2018, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system which will send a notice of electronic filing to the following: Mary E. Lytle David V. Barszcz LYTLE & BARSZCZ, P.A. 543 North Wymore Road, Suite 103 Maitland, Florida 32751 E-mail: mlytle@lblaw.attorney E-mail: dbarszcz@lblaw.attorney /s/ Jennifer Monrose Moore Attorney 35468117.1 Case 6:17-cv-01456-PGB-KRS Document 65 Filed 09/04/18 Page 11 of 11 PageID 1336