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