Simmons et al v. Boys & Girls Club of The Pikes Peak Region, et al

MOTION for Partial Summary Judgment

D. Colo.May 23, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No.: 1:16-cv-01461-RBJ ELIZABETH SIMMONS, an individual, Plaintiff, v. BOYS & GIRLS CLUB OF THE PIKES PEAK REGION, a Colorado corporation, JAMES M. SULLIVAN III, an individual, Defendants. ______________________________________________________________________________ PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT ON HER “TEEN COORDINATOR” FAIR LABOR STANDARDS ACT CLAIM ______________________________________________________________________________ Plaintiff Elizabeth Simmons (“Ms. Simmons”), by and through counsel, Lewis Kuhn Swan PC, submits her Motion for Partial Summary Judgment on her “Teen Coordinator” Fair Labor Standard Claim (“Motion”) as follows: INTRODUCTION This Motion presents more of an accounting problem than a legal one. How much unpaid overtime and liquidated damages does Defendant Boys & Girls Club of the Pikes Peak Region (“Boys & Girls Club”) owe Ms. Simmons for her work as a Teen Coordinator pursuant to the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq.? The Court can resolve this mathematical question on summary judgment because (1) it is undisputed that, while employed as a Teen Coordinator, Ms. Simmons was a non-exempt employee; (2) Ms. Simmons does not challenge the accuracy of Boys & Girls Club’s timekeeping records for her time as a Teen Case 1:16-cv-01461-RBJ Document 21 Filed 05/23/17 USDC Colorado Page 1 of 8 2 Coordinator; and (3) there is no dispute Ms. Simmons is entitled to liquidated damages. Accordingly, Ms. Simmons is entitled to summary judgment on this claim and this Court should enter judgment in her favor in an amount of $947.76 plus her reasonable attorneys’ fees. 1 UNDISPUTED FACTS 1. Boys & Girls Club employed Ms. Simmons as a Teen Coordinator from August 18, 2014 to April 5, 2015. See Exh. 1, ¶ 2, Declaration of Elizabeth Simmons. 2. Boys & Girls Club originally classified its Teen Coordinators as exempt from the overtime requirements of the FLSA. Id., ¶ 3. 3. While employed as a Teen Coordinator, Boys & Girls Club required Ms. Simmons to report the hours she worked on timesheets she submitted every other week. Id., ¶ 3. Ms. Simmons completed these timesheets during the relevant time period, and she does not dispute the accuracy of them for those she submitted as a Teen Coordinator. Id. 4. On May 16, 2016, Boys & Girls Club reclassified its Teen Coordinators and issued Ms. Simmons a check in the amount of $947.76-reflecting what it believed was the amount of unpaid overtime owed. This amount neither included liquidated damages nor recoverable attorneys’ fees and costs. Id., ¶ 4. 5. Boys & Girls Club, relying on Ms. Simmons’s timesheets, compiled a summation of the unpaid overtime owed to her for her work as a Teen Coordinator. Id., ¶¶ 4-5. The summation is attached as Exhibit 1-A to the Declaration of Elizabeth Simmons. Ms. Simmons does not dispute the accuracy of these calculations. Id., ¶ 5. 1 This claim is admittedly a small component of this case. Resolution of it, however, will streamline and simplify the remaining, larger claims. Case 1:16-cv-01461-RBJ Document 21 Filed 05/23/17 USDC Colorado Page 2 of 8 3 6. According to Boys & Girls Club’s own calculation, it failed to pay Ms. Simmons $947.76 in overtime premiums, specifically 57.44 overtime hours multiplied by Ms. Simmons’s hourly overtime rate of $16.50. Id. 7. Boys & Girls Club’s reclassification was proper because, as a Teen Coordinator, Ms. Simmons did not earn $455 per week, did not exercise discretion and independent judgment with respect to matters of significance, and did not supervise any employees. Id., ¶ 2. She was thus non-exempt under the FLSA. 8. Additionally, Boys & Girls Club has produced no evidence that its failure to pay overtime compensation for these hours was in good faith and that it had reasonable grounds for believing that its failure to pay overtime was not a violation of the FLSA. Accordingly, Ms. Simmons is entitled to an equal amount in liquidated damages as a matter of law, bringing the total amount owed to $1,895.52 ($947.76 + $947.76). 9. Ms. Simmons is thus entitled to judgment in her favor in the amount of the unpaid liquidated damages, $947.76 ($1,895.52 - $947.76 = $947.76). Ms. Simmons is likewise entitled to her reasonable attorneys’ fees and costs related to this claim. 10. This amount does not include the overtime Ms. Simmons worked while she was a Branch Manager. That position is not at issue in this Motion because there are arguably disputed issues of fact concerning her non-exempt status as a Branch Manager. LEGAL STANDARD Summary judgment should be granted when there are no genuine issues as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). While the moving party has the initial burden to show that there is no genuine issue as to Case 1:16-cv-01461-RBJ Document 21 Filed 05/23/17 USDC Colorado Page 3 of 8 4 any material fact, once that initial burden is met, the burden shifts to the non-moving party to establish that a triable issue of fact exists. In re Ribozyme Pharm., Inc. Sec. Litig., 209 F. Supp.2d 1106, 1111 (D. Colo. 2002). Mere allegations, conjecture, or speculation are not enough; the non-moving party must produce admissible evidence that is “significantly probative of the claims he has made.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The non- moving party cannot rest on the pleadings alone, but must designate specific facts in affidavits, oral discovery, and responses to written discovery that establish a genuine triable issue. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); In re Ribozyme, 209 F. Supp. 2d at 1111. Summary judgment must not be regarded as “a disfavored procedural shortcut,” but as “an integral part of the [rules of civil procedure] as a whole, which are designed ‘to secure the just, speedy and inexpensive determination of every action.’” Celotex, 477 U.S. at 327 (quoting Fed. R. Civ. P. 1). ARGUMENT I. MS. SIMMONS IS ENTITLED TO SUMMARY JUDGMENT ON THE UNPAID OVERTIME OWED FOR WHEN SHE WORKED AS A TEEN COORDINATOR. A. The Teen Coordinator Position Is Non-Exempt. Boys & Girls Club relies on no FLSA exemption for the time Ms. Simmons worked as a Teen Coordinator. Nor can it. Ms. Simmons earned $440 per workweek ($11/hour x 40 hours), short of the $455 per workweek necessary for the administrative exemption. 29 C.F.R. § 541.200(a)(1). Ms. Simmons likewise did not supervise any employees as a Teen Coordinator and did not exercise discretion and independent judgment with respect to matters of significance, and did not supervise any employees. Accordingly, Ms. Simmons was a non-exempt employee as a matter of law, and thus, entitled to overtime compensation for all hours worked over 40 in any workweek. Case 1:16-cv-01461-RBJ Document 21 Filed 05/23/17 USDC Colorado Page 4 of 8 5 B. The Number of Hours Ms. Simmons Worked Is Undisputed. Boys & Girls Club’s timekeeping records demonstrate that Ms. Simmons worked 57.44 overtime hours for which she was not originally compensated. Ms. Simmons does not challenge the accuracy of these records as they relate to the Teen Coordinator position. Accordingly, this fact is undisputed. C. Ms. Simmons Is Entitled to Liquidated Damages. The FLSA provides that “any employer who violates [the overtime provisions] shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages.” 29 U.S.C. § 216(b) (emphasis added). However, “if in any action to recover unpaid overtime compensation an employer ‘shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of the FLSA,’ the court may refuse to award liquidated damages.” Renfro v. City of Emporia, Kan., 948 F.2d 1529, 1540 (10th Cir. 1991) (quoting 29 U.S.C. § 260). This additional compensation is “‘not a penalty exacted by the law, but rather compensation to the employee occasioned by the delay in receiving wages due caused by the employer’s violation of the FLSA.’” Jordan v. U.S. Postal Serv., 379 F.3d 1196, 1202 (10th Cir. 2004) (citing Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 142 (2d Cir.1999)). “‘[T]he purpose for the award of liquidated damages is the reality that the retention of a workman’s pay may well result in damages too obscure and difficult of proof for estimate other than by liquidated damages.’” Id. (citing Renfro, 948 F.2d at 1540). Case 1:16-cv-01461-RBJ Document 21 Filed 05/23/17 USDC Colorado Page 5 of 8 6 A court may eliminate “the award of liquidated damages only if the employer shows both that he acted in good faith and that he had reasonable grounds for believing that his actions did not violate the [FLSA].” Renfro, 948 F.2d at 1540 (emphasis added). “[T]he employer bears the burden of establishing, by plain and substantial evidence, subjective good faith and objective reasonableness.” Reich v. S. New England Telecomm. Corp., 121 F.3d 58, 71 (2d Cir. 1997). To demonstrate such good faith, the “employer bears the burden of proving an honest intention to ascertain and follow the dictates of the [FLSA and] must also prove its position was objectively reasonable.” Hultgren v. Cty. of Lancaster, 913 F.2d 498, 509 (8th Cir. 1990). In satisfying this burden, “[i]gnorance alone will not exonerate the employer under the objective reasonableness test.” Williams v. Tri-Cty. Growers, Inc, 747 F.2d 121, 129 (3d Cir. 1984). “It requires that an employer first take active steps to ascertain the dictates of the FLSA and then move to comply with them.” Reich, 121 F.3d at 71. “The burden, under 29 U.S.C. § 260, is a difficult one to meet, however, and double damages are the norm, single damages the exception.” Id. (quotations omitted). “If the employer fails to come forward with plain and substantial evidence to satisfy the good faith and reasonableness requirements, the district court is without discretion to deny liquidated damages.” Williams, 747 F.2d at 129. Here, it is Boys & Girls Club’s burden to avoid liquidated damages. See Robertson v. Bd. of Cty. Comm’rs, 78 F. Supp. 2d 1142, 1162 (D. Colo. 1999). Absent evidence showing that its failure to pay overtime to its Teen Coordinators was in good faith and reasonable, “liquidated damages are presumed[.]” Reyes v. Snowcap Creamery, Inc., 2014 WL 1101446, at *2 (D. Colo. Mar. 20, 2014). Boys & Girls Club has produced no evidence in discovery that it “took any ‘active steps,’ such as seeking a governmental or attorney opinion, ‘to ascertain the dictates of Case 1:16-cv-01461-RBJ Document 21 Filed 05/23/17 USDC Colorado Page 6 of 8 7 the FLSA.’” Id. (quoting Koellhoffer v. Plotke-Giordani, 858 F. Supp. 2d, 1181, 1193 (D. Colo. 2012)). Moreover, Boys & Girls Club’s voluntary payment of the overtime component before trial does not negate Ms. Simmons’s entitlement to liquidated damages. See Jordan, 379 F.3d at 1202 (“[T]he FLSA required an award of liquidated damages equal to the full amount of back pay notwithstanding the employer’s voluntary payment of part of these damages before trial.”) (citing approvingly Braswell v. City of El Dorado, Ark., 187 F.3d 954, 956 (8th Cir. 1999)) Accordingly, Ms. Simmons is entitled to liquidated damages as a matter of law because it is Boys & Girls Club’s burden to avoid liquidated damages and it has no evidence to create a triable issue of fact on this point. See Fed. R. Civ. P. 56(c)(1)(B); Bleil v. Williams Prod. RMT Co., LLC, 911 F. Supp. 2d 1141, 1148 (D. Colo. 2012) (“While the movants must show the absence of a genuine issue of material fact, they do not need to negate the nonmovant’s claim in order to prevail on summary judgment. Instead, the movants have the initial burden of demonstrating an absence of evidence to support the nonmoving party’s case. If they can do that, the burden then oscillates back to the nonmoving party to show that there is a genuine issue of material fact.”) (citations and quotations omitted). WHEREFORE, Ms. Simmons respectfully requests the Court grant summary judgment in her favor on this claim in the amount of $947.76, representing the unpaid overtime and liquidated damages to which she is entitled for when she was employed as a Teen Coordinator. Ms. Simmons further requests the Court award her reasonable attorneys’ fees and costs. 2 2 Ms. Simmons asserts this claim jointly against Boys & Girls Club and its Defendant James M. Sullivan III. This Motion, however, is cabined to the claim against Boys & Girls Club. Case 1:16-cv-01461-RBJ Document 21 Filed 05/23/17 USDC Colorado Page 7 of 8 8 Dated this 23th day of May, 2017. /s/ Michael D. Kuhn Paul F. Lewis Michael D. Kuhn Andrew E. Swan LEWIS | KUHN | SWAN PC 620 North Tejon Street, Suite 101 Colorado Springs, CO 80903 Telephone: (719) 694-3000 Facsimile: (866) 515-8628 plewis@lks.law mkuhn@lks.law aswan@lks.law Attorneys for Plaintiff CERTIFICATE OF SERVICE I hereby certify that on this May 23, 2017, I electronically filed the foregoing using the Court’s CM/ECF system which will send notification of such filing to all counsel of record. /s/ Cameron L. Caldwell Case 1:16-cv-01461-RBJ Document 21 Filed 05/23/17 USDC Colorado Page 8 of 8 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No.: 1:16-cv-01461-RBJ ELIZABETH SIMMONS, an individual, Plaintiff, V. BOYS & GIRLS CLUB OF THE PIKES PEAK REGION, a Colorado corporation, JAMES M. SULLIVAN III, an individual. Defendants. DECLARATION OF ELIZABETH SIMMONS IN SUPPORT OF HER MOTION FOR PARTIAL SUMMARY JUDGMENT I, Elizabeth Simmons, declare: 1. My name is Elizabeth Simmons, and I am the Plaintiff in this action. 2. Defendant Boys & Girls Club of the Pikes Peak Region ("Boys & Girls Club") employed me as a Teen Coordinator from August 18, 2014 to April 5, 2015. As a Teen Coordinator, I did not earn $455 per week, did not exercise discretion and independent judgment with respect to matters of significance,and did not supervise any employees. 3. As a Teen Coordinator, Boys & Girls Club originally classified me as an exempt employee. Nonetheless, I still reported the hours I worked on time sheets I submitted every other week. These timesheets accurately reflect the number of hours I worked while employed as a Teen Coordinator. Case 1:16-cv-01461-RBJ Document 21-1 Filed 05/23/17 USDC Colorado Page 1 of 4 4. On May 16,2016, Boys & Girls Club notified me that it was reclassifying me for the time I worked as a Teen Coordinator. Boys & Girls Club, relying on the timesheets I submitted, sent me a check in the gross amount of $947.76 and a summary of the unpaid overtime hours for which it was compensating me. This amount reflected 57.44 hours of unpaid overtime at my overtime rate of $16.50 per hour. This amount did not include liquidated damages or attorneys' fees or costs. 5. Boys & Girls Club's summary and the earning statement for the check it sent me are attached as Exhibit 1-A to this declaration. I do not dispute the accuracy of the number of overtime hours Boys & Girls Club claims it failed to pay me. Pursuant to 42 U.S.C. § 1746, 1 declare under penalty of perjury that the foregoing statements are true and correct and that 1 have personal knowledge of the information provided above. Signature " Date Case 1:16-cv-01461-RBJ Document 21-1 Filed 05/23/17 USDC Colorado Page 2 of 4 E li za b et h S im m o n s C la ss if ic at io n C ha ng e T ee n C oo rd in at or ef fe ct iv ed at e 8/ 24 /1 5 P ay d at e 8 /2 8 /2 0 1 4 9 /1 5 /2 0 1 4 9 /3 0 /2 0 1 4 1 0 /1 5 /2 0 1 4 1 0 /3 0 /2 0 1 4 1 1 /1 4 /2 0 1 4 1 1 /2 8 /2 0 1 4 1 2 /1 5 /2 0 1 4 1 2 /3 0 /2 0 1 4 1 /1 5 /2 0 1 5 1 /3 0 /2 0 1 5 2 /1 3 /2 0 1 5 2 Q 7 /2 0 1 5 3 /1 5 /2 0 1 5 3 /3 0 /2 0 1 5 4 /1 5 /2 0 1 5 P ay p er io d 0 8 /0 7 /1 4 -0 8 /2 2 /1 4 0 7 /2 3 /1 4 -0 9 /0 8 /1 4 0 9 /0 9 /1 4 -0 9 /2 3 /1 4 0 9 /2 4 /1 4 -1 0 /0 8 /1 4 1 0 /0 9 /1 4 -1 0 /2 3 /1 4 1 0 /2 4 /1 4 -1 1 /0 8 /1 4 1 1 /0 9 /1 4 -1 1 /2 3 /1 4 1 1 /2 4 /1 4 -1 2 /0 8 /1 4 1 2 /0 9 /1 4 -1 2 /2 3 /1 4 1 2 /2 4 /1 4 -0 1 /2 4 /1 4 0 1 /0 9 /1 5 -0 1 /2 3 /1 5 0 1 /2 4 /1 5 -0 2 /0 8 /1 5 0 2 /0 9 /1 5 -0 2 /2 3 /1 5 0 2 /2 4 /1 5 -0 3 /0 8 /1 5 0 3 /0 9 /1 5 -0 3 /2 3 /1 5 0 3 /2 4 /1 5 -0 4 /0 8 /1 5 R eg H o u rs 7 2 .2 5 Se m i« M on th ly Pa yr ol l T im e sh e e t O v er ti m e H o u rs T o ta l H o u rs 4 5 .5 0 7 3 .5 0 1 0 2 .5 0 8 9 .1 2 8 1 .5 0 8 4 .0 0 6 7 .0 0 7 5 .2 5 1 0 .2 5 9 0 .2 5 a s . u u 8 8 .6 7 4 2 .6 7 8 6 .6 7 0 .0 0 7 4 .6 7 8 4 .6 7 4 6 .0 0 8 6 .6 7 6 4 .6 7 7 0 .6 7 H o u rs P a id 5 5 .0 0 8 6 .6 7 8 8 .6 7 8 6 .6 7 7 2 .6 7 8 6 .6 7 T o ta l h o u rs R a te o f T o ta ls S T o ta l R e tr o P aE ar ni ng s ow ed to em pl oy ee R eg H o u rs O v er ti m e H o u rs 1 4 4 2 (2 3 .9 4 ) 1 1 .0 0 2 6 3 .3 4 B G C P P R /S im m o n s 0 0 0 1 5 6 1 0 .2 5 5 7 .4 4 9 4 7 .7 6 6 8 4 .4 2 Case 1:16-cv-01461-RBJ Document 21-1 Filed 05/23/17 USDC Colorado Page 3 of 4 B u si n e ss P ay ro ll S e rv ic e s E ar n in g s S ta te m en t #1 02 90 26 B oy s an d G ir is C lu b of th e P ik es P ea k R e C he ck D at e: 05 /2 7/ 20 16 - 1 |P ay P er io d: 05 /0 9/ 20 16 w k» 20 -0 5/ 23 /2 01 5 w »0 f2 2 S im m o n s, E li za b et h C h e c k D at e: 20 16 -O 5- 27 -1 Ea rn in g R al e E 10 R et ro P ay 0 .0 0 C h e c k T o ta ls : i C od a i 10 0 A c c tu a d 0 .0 0 E m p I N um : 44 7 C h e c k N u m : 1 8 4 7 9 H rs /U ni ts A m i 6! 60 94 7. 76 Y T O H rs B a ta n c a 0 -0 0 '• •A c a u a l d at a Is a s of th e pr in t d at e N et P a y m e n ts N P C -C h e c k N et P ay m en ts T ot al : A m o u n t 8 7 5 .2 6 8 7 6 .2 6 62 00 9 W ef is Fa rg o Sa nk ,N .A Al lr ig ht s re se rv ed .M em be r FO iC . 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