Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Miller v. Food Concepts International, LP

United States District Court, S.D. Ohio, Eastern Division

March 29, 2017

JOSEPH MILLER, Plaintiff,
v.
FOOD CONCEPTS INTERNATIONAL, LP, et al, Defendants.

          Deavers Magistrate Judge

          OPINION & ORDER

          ALGENON L. MARBLEY UNITED STATES DISTRICT JUDGE

         In 2013, Plaintiffs Joseph Miller (2:13-cv-00124), Teddy Crozier (2:13-CV-00125), Komekeo Coleman (2:13-CV-00126), Eric Gibbs (2:13-CV-00127), Stacie Johnson (2:13-CV-00129), Lucas Troyer (2:13-CV-00130), Angie Tigner (13-CV-132), Amanda McEldowney (2:13-CV-00133), and Jamie Keegan (2:13-CV-00134) (collectively, “Plaintiffs”) sued Food Concepts International, LP (“Food Concepts”), Abuelo's International LP (“Abuelo's”), Mark Myers, and Darren DelVecchio (collectively, “Defendants”). Currently before the Court are: (1) Defendants' Motions for Summary Judgment; (2) Defendants' Motion to Strike Affidavits Filed with Plaintiffs' Memoranda in Opposition to Defendants' Motions for Summary Judgment; and (3) Plaintiffs' Motion to Strike Defendants' Reply in Support of their Motion to Strike Plaintiffs' Affidavits. For the following reasons, the Court GRANTS in part Defendants' motion to strike, DENIES Plaintiffs' motion to strike, and GRANTS in part Defendants' motions for summary judgment.

         I. BACKGROUND

         These cases deal primarily with the wage and hours practices at Abuelo's Restaurant #621 at Easton Town Center, in Columbus, Ohio.[1]

         A. Factual Background

         Food Concepts is the parent company for Abuelo's restaurants, which is a nationwide chain of high volume restaurants. (Miller Dep. Ex. 2.) Plaintiffs are current or former employees of Abuelo's Store #621, which is located in the Easton Town Center shopping mall in Columbus, Ohio. Plaintiffs served in various roles, including bartender, server, trainer, and shift lead. Defendant Mark Myers serves as Regional Manager for Abuelo's, and has served in that role since approximately 2003. Mark Myers supervised the General Managers of several stores, including Store #621. Defendant Darren DelVecchio served as General Manager of Store #621 from April 2010 until January 12, 2011.

         Abuelo's Store #621 keeps employees' time through an Aloha point of sale system. Employees record their time at work by clocking in and out of the Aloha system. Abuelo's corporate payroll department uploads this data weekly and pays employees bi-weekly pursuant to payroll reports it generates from the uploaded data. The time spent between clocking in and clocking out is time spent “on the clock.” The Aloha point of sale system does not record time spent working “off the clock, ” meaning time spent working before clocking in or after clocking out. For a number of years, Store #621 management encouraged employees to work off the clock to reduce labor costs and prevent employees from accruing overtime.

         When a server or bartender (for ease of reference, the Court will refer to both as “servers”) begins a shift, she is ostensibly supposed to clock in. Store #621's unwritten policy, however, was for servers to wait to clock in until they received their first table. Servers typically spent the time between arrival and clock-in doing “side work, ” or preparing their tables, sweeping floors, filling sugar and salt shakers, et cetera.

         Once the server ends her shift, she closes all of the transaction from her sales for that shift by going through a checkout (or “cash out”) process. The server initiates the checkout process by swiping her card to activate the Aloha system, which then generates a checkout report. The server prints the checkout report and takes it to a manager for review. The server then reconciles the money with the manager.

         A server typically clocks out after the “cash out” process. When she clocks out, she declares her tips. After clocking out, she may finish her side work, if she did not do so before clocking out. She also may be drawn into running food, taking out trash, or helping other employees.

         When a server clocks out, the Aloha system prints a “chit”-a paper receipt identifying the job under which the employee clocked in, the employee's clocked-in and out times, the number of hours worked during that shift, the total hours worked during that work week, total sales, tip share amount, declared tips, and charged tips. The system does not keep an electronic copy of the chit; rather, the chit is for the employee's records. Plaintiffs in these cases did not keep their chits.

         Managers are able to adjust an employee's time if she, for example, forgets to clock in or out at the correct time or fails to declare the correct amount of tips. This adjustment is called a “punch edit.” The company maintains a punch edit report, which shows adjustments made to time or tips. Plaintiffs claim that Defendants made invalid punch edits to their time by, in general, reducing their hours and increasing declared tips.

         When Plaintiffs were hired by Abuelo's, they received an employee handbook. They also signed an acknowledgement of receipt of the employee handbook. The employee handbook contains disclaimers, set forth in detail below, that state that the handbook does not form a contract of employment, and it may be changed by Defendants at any time.

         Plaintiffs report that they worked off the clock and were not paid for such time-in regular, or overtime wages. Plaintiffs also report not being afforded paid vacations or bonuses, as outlined in the employee handbook.

         B. Procedural Background

         The Court will provide only highlights of the tortured procedural background of these cases. Plaintiffs' original complaints, filed in January 2013 in the Franklin County Court of Common Pleas, alleged various causes of action against Defendants, such as: sex discrimination; negligent hiring, supervision and retention; intentional infliction of emotional distress; violation of state and federal minimum wage and overtime laws; and wrongful termination. (Doc. 1-1.)[2]The original complaints, albeit long, were short on facts pertaining to Plaintiffs. Defendants removed the cases to federal court on February 12, 2013. (Doc. 1.)

         Over the next eight months, following multiple requests from Defendants, the Court issued several orders requiring Plaintiffs to file amended complaints that complied with the basic notice requirements of Federal Rule of Civil Procedure 8(a). (Docs. 9, 16, 27, 30.) When Plaintiffs' counsel finally filed Amended Complaints on October 15, 2013, it became clear that these Amended Complaints, too, failed to comply with the Court's orders and the federal rules. Consequently, the Court was compelled to order Plaintiffs to show cause why their lawsuits should not be dismissed. (Doc. 30.)

         On October 25, 2013, Plaintiffs attached a third version of their complaints to their responses to Magistrate Judge Abel's Order to Show Cause. (Doc. 31.) With no explanation or request for leave, some Plaintiffs attached a fourth version on November 18, 2013. (See, e.g., Doc. 33.) Depending on the Plaintiff, these complaints alleged causes of action for: (a) wage and hour violations of FLSA; (b) breach of contract; (c) retaliation under state and federal law; (d) aiding and abetting discrimination in violation of state law; (e) a hostile work environment; and/or (f) retaliation/loss of job benefits. (Doc. 36.) On January 17, 2014, Magistrate Judge Abel conducted an exhaustive review as to whether these versions could pass muster under the lenient, notice-pleading standard of Federal Rule of Civil Procedure 8(a). (Doc. 36.) Alas, large sections of them could not, and Magistrate Judge Abel recommended that Plaintiffs' retaliation and aiding and abetting claims be dismissed with prejudice, as well as the vast majority of their hostile work environment claims. (Doc. 36.) Judge Abel recommended that Plaintiffs' FLSA wage and hours, and breach of contract, and Johnson's hostile work environment claims, be allowed to proceed. (Doc. 36.) No party objected, and, on February 18, 2014, this Court adopted the Magistrate Judge's Report and Recommendation. (Doc. 38.)

         The next several months were punctuated by discovery disputes, (see, e.g., Docs. 45, 50, 53, 61, 62, 79), Plaintiffs' unsuccessful motion for sanctions following a mailing mix-up, (Docs. 47, 69), and Plaintiffs' attempt to file a second amended complaint. (Doc. 60.) The Magistrate Judge denied Plaintiffs' motion for leave to file a second amended complaint on February 18, 2015. (Doc. 82.) At least one Plaintiff objected to the Magistrate Judge's order, (see, e.g., Tigner Doc. 62), and this Court overruled this objection. (Tigner Doc. 66.) Plaintiffs also filed a motion for prejudgment attachment of Defendants' assets, (Doc. 90), which, following a hearing, this Court denied for lack of valid justification. (Doc. 119 at 5.)

         Defendants filed motions for summary judgment on July 5, 2016. (Doc. 156.) Following three extensions of the time to file their responses, Plaintiffs filed their oppositions on August 23, 2016. (Doc. 171.)[3] Defendants filed their replies in support of their motions on September 23, 2016 (Doc. 177), along with a motion to strike the affidavits filed with Plaintiffs' responses. (Doc. 178.) On November 3, 2016, Plaintiffs moved to strike Defendants' reply in support of Defendants' motion to strike, (Doc. 181), and Defendants responded on November 4, 2016. (Doc. 182.) Defendants' motions for summary judgment (Doc. 156) and motion to strike (Doc. 178), and Plaintiffs' motion to strike (Doc. 181), are ripe for review.

         II. MOTIONS TO STRIKE

         Defendants seek to strike the affidavits filed with Plaintiffs' memoranda in opposition to Defendants' motions for summary judgment, because: (1) many were untimely filed; (2) they contradict the affiants' deposition testimony and contain evidence not produced in discovery; and (3) the third-party affidavits were made with no personal knowledge of the statements made therein. (Doc. 178 at 4.) Plaintiffs seek to strike Defendants' reply in support of their motion to strike because, they argue, Defendants untimely filed their brief. (Doc. 181.)

         A. Plaintiffs' Motion to Strike

         Plaintiffs' motion to strike for Defendants' allegedly untimely filing is easily disposed-of and not well taken. Defendants filed their motion to strike on September 23, 2016. (Doc. 178.) Response and reply deadlines are governed by Local Rule 7.2(a)(2) and Federal Rule of Civil Procedure 6(d). Local Rule 7.2(a)(2) provides twenty-one (21) days for Plaintiffs to respond to Defendants' motion. Because Defendants' motion was filed in September 2016, Federal Rule of Civil Procedure 6(d) adds three days to that deadline because Defendants' motion was filed electronically.[4] In accordance with these rules, Plaintiffs filed their response on October 17, 2016-twenty-four days after Defendants filed their motion. (Doc. 179.)

         Under Local Rule 7.2(a)(2) and Federal Rule of Civil Procedure 6(d), Defendants had fourteen days plus three days to file their reply brief. Consequently, Defendants' reply brief was due on November 3, 2016. Defendants' reply brief, which they filed on November 3, 2016, was timely. (Doc. 180.)

         For these reasons, Court DENIES Plaintiffs' motion to strike. (Doc. 178.)

         B. Defendants' Motion to Strike

         With each memorandum in opposition to Defendants' motions for summary judgment, Plaintiffs filed three affidavits: one from each Plaintiff, one from former Abuelo's General Manager Miro Lucinan, [5] and one from former Abuelo's Assistant General Manager Ed Linihan. Defendants argue that this Court should strike the affidavits filed with Plaintiffs' memoranda in opposition to Defendants' motions for summary judgment, because: (1) many of Plaintiffs' affidavits were untimely filed; (2) all three affidavits contradict the affiants' deposition testimony and contain evidence not produced in discovery; and (3) the third-party affidavits were executed without personal knowledge of the statements made therein. (Doc. 178 at 4.)

         Amendments made to Federal Rule of Civil Procedure 56 in 2010 changed the mechanism for objecting to the affidavits filed with Plaintiffs' opposition briefs. Foreword Magazine, Inc. v. OverDrive, Inc., No. 1:10-cv-1144, 2011 WL 5169384, at *2 (W.D. Mich. Oct. 31, 2011). Where, before 2010, Defendants would have filed a motion to strike, there is no longer any need for such a motion. Id. Instead, the Court will treat Defendants' motion to strike as an objection under Federal Rule of Civil Procedure 56(c)(2), which provides: “[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.” Fed.R.Civ.P. 56(c)(2). The Court will disregard only the inadmissible portions of the affidavits. See Roshen v. Int'l Business, Machines Corp., no. 2:14-cv-260, 2016 WL 950363, at *8 (S.D. Ohio March 14, 2016).

         For the following reasons, the Court GRANTS in part and DENIES in part Defendants' Motion to Strike. More specifically, the Court will consider the affidavits of Plaintiffs Gibbs and Johnson, but not the affidavits or supporting documentation of Plaintiffs Miller, Crozier, Coleman, Troyer, Tigner, McEldowney (to the extent referencing time worked off the clock or unpaid overtime), or Keegan. The Court will also not consider paragraphs 3-4, 10-13, 15-16, or 20 of Lucinan's affidavit, or paragraphs 7-12, or 16-22 of Linihan's affidavit.

         1. Timeliness of Filing (Affidavits of Miller, Coleman, Gibbs, Johnson, Troyer, McEldowney, and Keegan)[6]

         Plaintiffs Miller, Coleman, Gibbs, Johnson, Troyer, McEldowney, and Keegan filed their affidavits on August 24, 2016, one day after their thrice-extended deadline for filing their oppositions and exhibits in connection thereto. (Docs. 160, 163, 170.) One extension had been jointly sought by Plaintiffs and Defendants; the next two were sought by Plaintiffs alone. (Docs. 159, 162, 169.) Defendants seek to strike these affidavits as untimely in light of Local Rules 7.2(d) and (e), and Plaintiffs' counsel's continuing “bold disregard of deadlines” throughout this litigation. (Doc. 178 at 6.)

         Local Rules 7.2(d) and (e) provide, in relevant part:

(d) Evidence Supporting Motions - Deadlines. When proof of facts not already of record is necessary to support or oppose a motion, all evidence then available shall be discussed in, and submitted no later than, the primary memorandum of the party relying upon such evidence. … If evidence is not available to meet this schedule or circumstances exist as addressed by Fed.R.Civ.P. 56(d), counsel shall consult one another and attempt to stipulate to a joint motion for extension of the schedule established by this Rule; failing agreement, counsel shall promptly bring the matter to the attention of the Court.
(e) Memoranda Evidence. …Unless already of record, such evidence [in opposition to a motion for summary judgment] shall be attached to the memorandum or included in an appendix thereto. … All evidence shall be submitted within the time limit set forth above. Evidence submitted, including discovery documents, shall be limited to that necessary for decision and shall include only essential portions of transcripts or exhibits referenced in the memorandum.

S.D. Ohio R. Civ. P. 7.2(d) and (e). Analogously, Federal Rule of Civil Procedure 16 “grants district courts wide latitude to impose sanctions for failure to comply with their scheduling orders.” Estes v. King's Daughters Med. Ctr., 59 F. App'x 749, 752-53 (6th Cir. 2003) (affirming the district court's decision to strike untimely-filed affidavits) (citation omitted).[7] The fact that proposed testimony is important “cannot singularly override the enforcement of local rules and scheduling orders.” Estes, 59 F. App'x at 754 (quotation omitted).

         The affected Plaintiffs oppose the striking of their affidavits, arguing (but not supporting with affidavits or otherwise) that: (a) they had prepared their response “well in advance of the filing deadline”; (b) Plaintiff's counsel “attempted to file Plaintiffs' affidavits and exhibits well before the Court ordered deadline;” but (c) “unfortunately, the size of Plaintiffs' affidavits and exhibits exceeded the limits of the CM/ECF system.” (Doc. 179 at 2.) Plaintiffs' counsel's definition of “well in advance of the deadline” appears to mean, as set forth more fully below, the evening his clients' filings were due. (Id.) Plaintiffs distinguish this latest untimely filing from the “prior incident cited by Defendants” by arguing that “in this instance Plaintiff [sic] were ready and willing but unable to file their affidavits and exhibits in support electronically because of CM/ECF limitations.” (Id.)

         The Court has no means to determine whether Plaintiff's counsel's current cry of the technological version of “wolf” is justified. The Court is aware, however, of Plaintiffs' continuous blatant disregard of deadlines throughout this litigation. For example, after several attempts by Defendants and the Court to induce Plaintiffs to amend their complaints to comply with the notice requirements of Federal Rule of Civil Procedure 8(a), Plaintiffs filed, without explanation or justification, amended complaints that, again, were deficient under the federal rules. Magistrate Judge Abel ordered Plaintiffs to show cause why they did not comply with the Court's orders and the federal rules, and summarized Plaintiff's counsel's explanation:

In response, plaintiffs' counsel did not maintain that the amended complaints complied with the October 3 Order. Instead, he asserted that he and his co-counsel drafted amended complaints, but on October 16 he and his staff were unable to find the word processing files for them. After his IT staff failed in their attempts to locate the files, plaintiffs' counsel and his staff hurriedly attempted to replicate the draft amended complaints in the 3-5 hours they had remaining before the filing deadlines. Now Plaintiff's counsel has substantially recovered the draft amended complaints and could file them on October 21. Plaintiffs' counsel did not communicate this information to me or opposing counsel until the October 18, 2013 telephone conference. (Doc. 30 at 3-4.)

         Plaintiffs finally filed another set of amended complaints, as ordered, in their responses to Magistrate Judge Abel's order to show cause. (Doc. 31.) Yet, in certain cases, Plaintiffs filed another amended complaint weeks later, again with no explanation. (Doc. 33.)

         Plaintiffs also tried to skirt the deadline for filing expert reports by providing successive sets of amended reports to Defendants after the deadline. The Court barred the untimely reports. (Doc. 115 at 3-4.) In striking as untimely Plaintiffs' exhibits in support of their Response in Opposition to Defendants' Motion in Limine, the Court noted that this was “not the first instance in this case of Plaintiffs' counsel failing to meet deadlines and making excuses based on technological failures.” (Doc. 145 at 3.)

         Plaintiffs have not changed their behavior following these orders; rather, the affidavits at issue now are just the latest in a long string of untimely filings, showing Plaintiffs' counsel's disrespect for the Court's deadlines. Now as before, Plaintiffs did not explain their technological issue or otherwise seek leave to file late responses. (Id.)[8]

         Plaintiffs' finger-pointing at Defendants for not raising the issue of Plaintiffs' untimely-filed affidavits until Defendants' replies in support of their motions for summary judgment (Doc. 179 at 3), is not well-taken. It was Plaintiffs' burden to justify the late filing. Having already experienced technological failures over the course of these cases, Plaintiffs' counsel was in an excellent position to learn from his past technological failures and allow extra time for filing his clients' affidavits.

         In the event the Court is inclined to disregard Plaintiffs' affidavits for being untimely, Plaintiffs seek, in their response to Defendants' motion to strike, leave to file their affidavits. Plaintiffs posit that Defendants have not been prejudiced by the delay, and request that the Court find the untimely filings to be the product of excusable neglect. (Doc. 179 at 3.) Plaintiffs cite no rule or case to support their argument. (Id.)

         Despite Plaintiffs' counsel's carelessness, the Court will not strike Plaintiffs' affidavits for being untimely. The affidavits of Plaintiffs Miller, Coleman, Gibbs, Johnson, Troyer, McEldowney, and Keegan were filed one day late. Neither Plaintiffs nor Defendants raised the issue until Defendants' motion to strike, filed nearly a month later. (Doc. 178.) Defendants were not prejudiced by the short delay, and disregarding affidavits based on untimeliness does not serve the interests of justice. Because the Court has the discretion to issue just orders in relation to its schedule, the Court will not disregard Plaintiffs' affidavits on the ground that they were filed one day late. Besides, this Court will not punish Plaintiffs for the dilatoriness of their counsel where, as here, no prejudice inures to the Defendants.

         2. Statements Contradictory of Deposition Testimony (All Three Affidavits)

         A nonmoving party cannot defeat a motion for summary judgment “simply by contradicting his or her own previous sworn statement (by, say, filing a later affidavit that flatly contradicts that party's earlier sworn deposition) without explaining the contradiction or attempting to resolve the disparity.” Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999); Kelso v. City of Toledo, 77 F. App'x 826, 834 (6th Cir. 2003). This Court has previously held that “[i]f a witness, who has knowledge of a fact, is questioned during her deposition about that fact, she is required to ‘bring it out at the deposition and cannot contradict her testimony in a subsequent affidavit.'” Bradley v. Mary Rutan Hosp. Assoc., 322 F.Supp.2d 926, 933 (S.D. Ohio 2004) (quotation omitted).

         In deciding the admissibility of a post-deposition affidavit at the summary judgment stage, a district court “must first determine whether the affidavit directly contradicts the nonmoving party's prior sworn testimony.” Aerel, S.R.L v. PCC Airfoils, L.L.C., 448 F.3d 899, 908 (6th Cir. 2006). If so, the affidavit should be stricken “unless the party opposing summary judgment provides a persuasive justification for the contradiction.” Id. If there is no direct contradiction, the district court “should not strike or disregard that affidavit unless the court determines that the affidavit ‘constitutes an attempt to create a sham fact issue.'” Id. (quoting Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir. 1986)). In Aerel, the Sixth Circuit adopted three non-exhaustive factors, originally set forth by the Tenth Circuit in Franks, for courts to consider in determining whether the nonmoving party has attempted to use the affidavit to create a sham fact issue:

[W]hether the affiant was cross-examined during his earlier testimony, whether the affiant had access to the pertinent evidence at the time of his earlier testimony or whether the affidavit was based on newly discovered evidence, and whether the earlier testimony reflects confusion [that] the affidavit attempts to explain.

Id. at 909 (quoting Franks, 796 F.2d at 1237) (alteration in original). The first factor, whether the affiant was cross-examined during the earlier testimony, is important because “a party who is cross-examined but nevertheless offers unequivocal testimony, only to be contradicted by a later affidavit, has indeed tried to create a sham fact issue.” O'Brien v. Ed Donnelly Enters., Inc., 575 F.3d 567, 593 (6th Cir. 2009).

         Defendants argue that each Plaintiff testified in his deposition to not keeping records of their allegedly unpaid time, and that no Plaintiff could provide any specifics as to any lost time or unpaid overtime. (See, e.g., Miller Dep., 91-92, 97, 107-109, 115-116; Crozier Dep., 17-20, 27-30, 51; Tigner Dep., 31-36, 44, 107-109; McEldowney Dep., 11-13, 17, 22-23, 25-27, 31-33, 35, 42-43, 60-61, 97-98; Keegan Dep., 23-26, 49, 89-100, 132; Troyer Dep., 142, 144, 147, 150; Gibbs Dep., 28-29, 32-34, 107; Coleman Dep., 25, 62-63, 67, 114, 115; Johnson Dep., 92-94, 100-101.) Plaintiffs argue that they attended their depositions armed with evidence, but that Defendants deliberately did not ask Plaintiffs about specifics and did not permit Plaintiffs to refer to their documents. (Doc. 179 at 5.) The affidavits, therefore, simply supplemented the record that Defendants deliberately failed to develop at Plaintiffs' depositions. (Id. at 9-10.) The Court will consider each Plaintiff's deposition below.

         Each Plaintiff's affidavit is the same, providing, in considerable detail:

each shift I worked by job description and occupation (tipped versus non-tipped versus dual job occupation), the date of the shift, the day of the week of the shift, my scheduled start time, my arrival time, the time I began working, the “Time In” Defendants recorded in my Weekly Time and Attendance Report, the time my “Cashout” report was printed, the “Time Out” Defendants recorded on my Weekly Time and Attendance report, the time I actually stopped working for the shift, my departure time from the restaurant, the hours Defendants recorded for my shift, my regular rate designation or my overtime designation, my rate of pay as determined by Defendants, the proper rate of pay I should have received, the wages Defendants paid me, the calculated wages I should have received for each shift I worked, the actual hours I worked, the amount of wages which Defendants underpaid me, the credit card or “CC Tips” reflected on my “Checkout”, the tips I declared for the shift, the actual credit card tips reflected on my “Checkout”, the actual tips I declared, the amount of tips Defendants under or over reported on my behalf, the amount of tip share Defendants illegally confiscated from me and distributed to their illegal tip splitting and tip pooling arrangement, and any additional notes necessary for me to clarify the errors contained in the Defendants' Weekly Time and Attendance Reports.

(Miller Aff't, Miller Doc. 172 at ¶ 3; Crozier Aff't, Crozier Doc. 82-2 at ¶ 3; Coleman Aff't, Coleman Doc. 80-2 at ¶ 3; Gibbs Aff't, Gibbs Doc. 85 at ¶ 3; Johnson Aff't, Johnson Doc. 101 at ¶ 3; Troyer Aff't, Troyer Doc. 85 at ¶ 3; Tigner Aff't, Tigner Doc. 83-1 at ¶ 3; McEldowney Aff't, McEldowney Doc. 83 at ¶ 3; Keegan Aff't, Keegan Doc. 87 at ¶ 3.) The exhibits attached to Plaintiffs' affidavits do not actually provide all of the information indicated, but the Court will address issues with the affidavits only where relevant. The Court will now turn to whether each Plaintiff's deposition contradicts his or her detailed affidavit.

         a. Miller

         With respect to Miller's deposition, Defendants are correct: a theme winding its way through Miller's deposition is that, at the time of his deposition, he had no idea what damages he was claiming, or how they were calculated. For example, when discussing how Miller calculated nine weeks of improperly unpaid vacation time, he explained that Mr. Oberhousen[9] “would be more able to explain it than I would.” (Doc. 156-2, at 46.) When asked about bonuses (termed “LTEs, ” or long-term employee bonus), he said “No, I don't specifically know the number of LTEs-no, I'm sorry.” (Id. at 57.) Miller responded “I mean, no…” when asked the question, “As we are sitting here today, do you know what your damages are? Do you know how much in dollars your damages are?” (Id. at 59.) He also said “No…” to the question “…do you have any independent information of what time, in fact, you clocked out those [punch-edited] days?” (Id. at 109.) Although Mr. Miller reviewed documents in preparation for his deposition, including “updated” damages figures provided by Mr. Oberhousen, he did not bring these updated figures to his deposition such that he could answer, intelligently, questions about the amount of damages he claimed and how they were calculated. (Id. at 51-2.) At his deposition, Mr. Miller did not provide a single start time or end time for a single day worked at Abuelo's.

         The contrast between Mr. Miller's deposition and his affidavit is stark. Mr. Miller's affidavit provides hundreds of pages of detailed answers to the questions that Mr. Miller could not answer at his deposition. Miller is incorrect that his affidavit simply supplements his deposition testimony or that Defendants hid the ball. His affidavit directly contradicts his deposition testimony. In other words, Miller has not provided a “persuasive justification for the contradiction.” Aerel, 448 F.3d at 908. As the examples above illustrate, Defendants asked numerous questions at Miller's deposition aimed at how, and with what information, Miller calculated his damages. Miller simply did not have the knowledge or information to provide answers. Because Miller's affidavit directly contradicts his deposition testimony, the Court will not consider it. See, e.g., Kelso, 77 F. App'x at 833-34 (district court properly did not consider affidavit testimony that a witness “states that she saw police officers at the accident scene lean their heads into Noble's minivan[, ]” when that witness testified during her deposition that she “could not get close enough to see what officers were doing around Noble's minivan.”)

         b. Crozier

         Mr. Crozier provided some general information on damages at his deposition, but he also could not provide the specifics contained in his affidavit. For example, Mr. Crozier testified at his deposition that he began working at Abuelo's on August 21, 2010, and stopped working at Abuelo's around July 23, 2012. (Crozier Dep., Crozier Doc. 75-2, at 7.) He started as a server, but by April or May of 2011, he began working 4-5 times per week as a shift lead. (Id. at 8.) He also started training new hires around the same time he became a shift lead. (Id.) As a server, Mr. Crozier would typically work nights-from 4:00 or 4:30 p.m. until 10:30 or 11:00 p.m. on Saturday nights, and from 4:00 or 5:00 p.m. until 9:00 or 10:00 p.m. on weeknights. (Id.) Mr. Crozier testified that he should have received a LTE bonus in 2011, but did not, (id. at 16), and he should have received a one-week vacation, which he requested in November of 2011, but did not. (Id.) He referred to a stack of punch-edits that he brought with him to his deposition, and pointed out an issue he saw with a punch edit from January 22, 2011. (Id. at 17-18.) Mr. Crozier testified that he regularly worked off the clock to finish his side work (which took anywhere from 30 minutes to one hour per shift), though he did not have any examples. (Id. at 19-24.) He testified that he would clock in to complete side work at the beginnings of his shifts, (id. at 36), and that he was not paid for a two-to-three hour training quiz completed on his first day of work. (Id. at 31.) Mr. Crozier had no documentation or examples to substantiate his claims for 1, 500 minutes of unpaid overtime, 41, 120 minutes of off-the-clock regular time, 5, 760 minutes in unpaid training time, or $235 of tips added by punch-edit. (Id. at 20, 27-28, 33.)

         Mr. Crozier's deposition directly contradicts his affidavit. Although Mr. Crozier had more information at his deposition than did Mr. Miller, his affidavit provides hundreds of pages of detailed answers to the questions that Mr. Crozier could not answer at his deposition. Mr. Crozier is incorrect that his affidavit simply supplements his deposition testimony or that Defendants hid the ball. Because Mr. Crozier's affidavit directly contradicts his deposition testimony, and because Plaintiff did not provide a persuasive justification for the contradiction, the Court will not consider it. Kelso, 77 F. App'x at 833-34; Aerel, 448 F.3d at 908.

         c. Coleman

         Like Mr. Crozier, Ms. Coleman provided some generalities regarding her time worked at Abuelo's, but she did not provide any specifics. She also testified more than once that, although Mr. Oberhousen asked her the same types of questions, she could not provide specifics to Mr. Oberhousen, either. (Coleman Dep., Doc. 73-2, at 48, 60, 99-100.)

         As to the generalities, she mentioned that, for a period of time where she served as shift lead, she worked Mondays through Fridays from 10:30 a.m. until 4:00 p.m. (Id. at 9-10.) She typically arrived thirty to sixty minutes before these shifts, (id. at 12, 62), but she typically could not clock in until her scheduled time, 10:30 a.m. (Id. at 16.) She estimated that at least sometimes she would spend fifteen or thirty minutes performing opening duties, (id. at 22, 41), and twenty-five to thirty minutes performing post-shift duties, although she endeavored at times to complete her post-shift duties during, rather than after, her shift. (Id. at 45.) She does not know when she would clock in-sometimes, she would try to clock in early, and sometimes she would “forget” to clock in until her first table, fifteen or twenty minutes after her start time. (Id. at 63-64, 68-69, 90.) She had no specific clock-out time; sometimes, she helped her fellow employees and sometimes she had to wait around for other reasons. (Id. at 46-47.) She estimated that she would clock out at the same time that she checked out approximately seventy percent of the time. (Id. at 82.) She was never disciplined for being late. (Id. at 90-91.) When asked about how she calculated the hours spent working off the clock, Ms. Coleman did not know, nor did she know how many hours she is claiming she was not properly paid. (Id. at 50, 59, 107-08.)

         Ms. Coleman also estimated that she spent eighty to ninety percent of her time as a shift lead training others, although she has no documentation of her time spent training. (Id. at 51-55.) She began this grueling training schedule approximately two months after starting work at Abuelo's. (Id. at 55.)

         By contrast, Ms. Coleman provided specifics-daily start times, end times, daily time off-the-clock, etc., in her affidavit. Ms. Coleman is incorrect that Defendants did not ask her about specifics in her deposition. Because her deposition directly contradicts her affidavit, and because Ms. Coleman did not provide a persuasive justification for the discrepancies, the Court will not consider her affidavit. Kelso, 77 F. App'x at 833-34; Aerel, 448 F.3d at 908.

         d. Gibbs

         Defendants point to pages 28-29, 32-34, 52-53, and 107 of Plaintiff Gibbs' deposition to argue that his deposition directly contradicts his affidavit. (Doc. 178 at 10; Doc. 180 at 8.) These excerpts of Gibbs' deposition, however, do not directly contradict his affidavit. In pages 28-34, Mr. Gibbs is explaining his methodology for estimating his unrecorded time. (Gibbs Dep., Doc. 77-2, at 28-34.) Directly following this testimony, Mr. Gibbs lists dozens of start times that he testifies are incorrect, and compares these start times with what he believes to be are his scheduled times for those days. (Id. at 34-38.)

         Pages 52-53 of Gibbs' deposition refer to allegedly misrecorded tips. (Id. at 52-53.) Mr. Gibbs' affidavit does not enumerate misrecorded tips. Therefore, the affidavit does not contradict the deposition testimony. Mr. Gibbs testifies on page 107 that he provided Mr. Oberhousen the same sorts of estimates that he provided during his deposition. (Id. at 107.)

         Plaintiffs' argument that the affidavits fill gaps in deposition testimony, (Doc. 179 at 5-10), rings true with Plaintiff Gibbs. Defense counsel rejected Mr. Gibbs' offer to provide further documentation. (Gibbs Dep., Doc. 77-2, at 14.) Mr. Gibbs provided the same sort of estimates to his expert that he did during his deposition. For these reasons, Mr. Gibbs' deposition does not directly contradict his affidavit, nor does it reflect an attempt to create a sham issue of fact. See Aerel, 448 F.3d at 909. The Court will consider Mr. Gibbs' affidavit.

         e. Johnson

         Johnson's affidavit, like that of Plaintiff Gibbs, does not directly contradict her deposition. In arguing that it does, the Defendants point to pages 38-39, 92-94, and 100-101 of her deposition. (Johnson Doc. 92-2.) On pages 38-39, Ms. Johnson testified that she did not keep contemporaneous records of unrecorded time spent working at Abuelo's, but that she would typically arrive fifteen to twenty minutes before her shift. On pages 92-94, Ms. Johnson testified that there are documents that support the amount of time she spent working as a bartender for Abuelo's but not being paid. These documents consisted of “[t]he spreadsheets and algorithms and work that Mr. Oberhausen [sic] has done to be able to calculate.” (Id. at 92.) She continued, testifying that four estimates of underpaid work time contained in her interrogatory answer number five are inaccurate, and that she does not know the accurate numbers. (Id. at 80, 93.) She notes that the accurate figures are contained on the “multiple” spreadsheets and documents she reviewed in preparation for her deposition. (Id. at 94.) Her attorney went on to offer to show defense counsel the specific documents she reviewed, and defense counsel rejected the offer. (Id. at 95-96.) On pages 100-101, Plaintiff testified that she does not know all her scheduled times off the top of her head, but that she typically arrived fifteen to twenty minutes early for her shift.

         Although Ms. Johnson did not know off the top of her head at her deposition the total amount of time for which she estimates she was underpaid, she offered to provide these figures-including spreadsheets and algorithms-to defense counsel during her deposition. Defense counsel declined. Therefore, the affidavit simply supplements the record rather than contradicts it, and does not reflect an attempt to create a sham issue of fact. See Aerel, 448 F.3d at 909. The Court will consider Ms. Johnson's affidavit.

         f. Troyer

         Defendants argue that Mr. Troyer's affidavit directly contradicts his deposition testimony, based on pages 85, 110, 112, 142, 144, 147, and 150 of his deposition. (Doc. 180 at 9.) Mr. Troyer testified at his deposition that there was “no way to reliably predict which days” he worked off the clock after clocking out, though he also testified that “nearly every shift [he] worked [he] would be performing work off the clock [at the end of a shift].” (Troyer Dep., Troyer Doc. 77-2, at 84-85.) He referred defense counsel to Mr. Oberhousen for any specifics. (Id.) He also “d[id] not know if [he] had [his] bartender hours [for 2010.]” (Id. at 110.) He speculated regarding arrival times on a few specific days, and explained his methodology behind his total estimated damages: extrapolation, for example, estimating an average of thirty-five minutes off the clock per shift. (Id. at 144-50.)

         Mr. Troyer's affidavit, which contains detailed time-in and time-out records, indeed conflicts with this deposition testimony. Because Plaintiff did not provide a persuasive justification for the contradiction, the Court will not consider ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.