United States District Court, S.D. Ohio, Western Division
AND ENTRY SUSTAINING PLAINTIFF SCOTT STARGEL'S MOTION FOR
SUMMARY JUDGMENT (DOC. #21); JUDGMENT SHALL ULTIMATELY ENTER
IN FAVOR OF PLAINTIFF AND AGAINST DEFENDANTS LEWARO
CONSTRUCTION, INC., PHILIP MOORE AND MARK PARKS, JOINTLY AND
SEVERALLY, IN AN AMOUNT TO BE DETERMINED AT AN EVIDENTIARY
H. RICE UNITED STATES DISTRICT JUDGE
Scott Stargel ("Plaintiff') claims that, while
serving as an employee of Defendants Lewaro Construction,
Inc. ("Lewaro"), Philip Moore ("Moore")
and Mark Parks ("Parks") (collectively
"Defendants"), he was not paid overtime
compensation, and that Defendants did not pay him for all the
hours he had worked. Doc. #1. Plaintiff alleges that
Defendants' conduct violated the Fair Labor Standards Act
("FLSA"), 29 U.S.C. §201 et seq, Ohio Minimum
Fair Wage Standards Act ("OMFWSA"), Ohio Rev. Code
§4111.01 et seq., and Ohio's Prompt Pay
Act. Ohio Rev. Code §4113.15. Id. Plaintiff
moved for summary judgment on each of those claims. Doc.
For the reasons set forth below, the Court SUSTAINS
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
was a Lewaro employee from June 14, 2014, through February
24, 2015, when he was terminated due to lack of available
work. Doc. #21-1, ¶¶ 2-3, PAGEID #105. He was paid
bi-weekly at a rate of $35.00 per hour. Id., ¶
5. While Plaintiff was not initially working full-time for
Lewaro, Parks, Lewaro's Chief Administrative Officer, and
George Weber ("Weber"), Stargel's direct
supervisor, later directed him to work in excess of forty
hours per week. Id.¶ 9, PAGEID #106. Plaintiff
was informed that he would not be paid at 150% of his normal
hourly rate for any time in excess of forty hours that he
worked in a given week. Id., ¶ 10. Rather,
"these overtime hours would be 'banked' for
future weeks when I would not work a full 40 hours."
Id. Plaintiff reported his hours to Lewaro on a
weekly basis. "In weeks that I reported more than
[forty] hours, those hours were either applied to the other
week in the pay period, or if I had worked more than [eighty]
hours in the pay period, all hours in excess of [eighty] were
'banked.'" Id., ¶ 11. Plaintiff
subsequently compiled a summary "of what I should have
been paid, what I was paid, and the difference between the
two." Id., ¶ 13 (citing Doc. #21-3).
termination, Plaintiff was informed that he would not be paid
at all for the banked overtime hours because Moore,
Lewaro's Chief Executive Officer, did not personally
authorize Plaintiff's overtime. Doc. #21-1, ¶ 14,
PAGEID #106; Doc. #21-3. After he was terminated, Plaintiff
completed at least eight hours of "wind-down" work
at Parks's request. Despite Lewaro's human resources
representative informing Parks that Plaintiff needed to be
compensated for those eight hours, Defendants refused to pay
Plaintiff. Id., ¶ 15, PAGEID #106-07.
December 19, 2016, Defendants moved for an extension of time
to respond to Plaintiff's Motion for Summary Judgment
until thirty days after the depositions of all parties could
be completed. Doc. #25, PAGEID #117. On December 21, 2016,
the Court, in a Notation Order, sustained Defendants'
motion. On January 9, 2017, Defendants' counsel moved for
leave to withdraw, stating that Defendants "have failed
to communicate promptly in accordance with the terms of the
fee agreement and comply with their financial obligations
thereunder[.]" Doc. #27, PAGEID #123. In a telephone
conference that same day, counsel for Plaintiff and for
Defendants indicated to Magistrate Judge Michael J. Newman
that: (1) Defendants had not responded to discovery requests
propounded upon them in August 2016; and (2) it was unlikely
that Defendants would appear at their depositions, which were
scheduled for January 10, 2017. Doc. #28, PAGEID #125. On
January 10, 2017, the Magistrate Judge sustained the motion
for leave to withdraw, id., and issued an Order
directing the Defendants to undertake five actions within
thirty days of the Order's entry, including but not
limited to "[f]il[ing] a memorandum in opposition to
Plaintiff's motion for summary judgment."
Id., PAGEID #126. Defendants did not comply with any
portion of the Magistrate Judge's Order; specifically,
they never filed a memorandum in opposition to
Plaintiff's properly authenticated Motion for Summary
judgment shall be granted "if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). Summary judgment must be entered
"against a party who fails to make a showing sufficient
to establish the existence of an element essential to that
party's case, and on which that party will bear the
burden of proof at trial." Celotex Corp. v.
Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d
265 (1986). The moving party always bears the initial
responsibility of informing the court of the basis for its
motion, and identifying those portions of the record which it
believes demonstrate the absence of a genuine issue of
material fact. Id. at 323; see also Boretti v.
Wiscomb, 930 F.2d 1150, 1156 (6th Cir. 1991).
the moving party has met its initial burden, the nonmoving
party must present evidence that creates a genuine issue of
material fact making it necessary to resolve the difference
at trial. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Once the
burden of production has so shifted, the party opposing
summary judgment cannot rest on its pleadings or merely
reassert its previous allegations. It is not sufficient to
"simply show that there is some metaphysical doubt as to
the material facts." Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348,
89 L.Ed.2d 538 (1986). Rule 56 requires the nonmoving party
to go beyond the pleadings and present some type of
evidentiary material in support of its position.
Celotex, 477 U.S. at 324. "The plaintiff must
present more than a scintilla of evidence in support of his
position; the evidence must be such that a jury could
reasonably find for the plaintiff." Michigan Prot.
& Advocacy Sen/., Inc. v. Babin, 18 F.3d 337, 341
(6th Cir. 1994).
judgment will not lie if the dispute about a material fact is
'genuine, ' that is, if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party." Anderson, 477 U.S. at 248. In
determining whether a genuine dispute of material fact
exists, a court must assume as true the evidence of the
nonmoving party and draw all reasonable inferences in favor
of that party. Id. at 255. If the parties present
conflicting evidence, a court may not decide which evidence
to believe. Credibility determinations must be left to the
fact-finder. 10A Wright, Miller & Kane, Federal
Practice and Procedure Civil 3d, 2726 (1998).
determining whether a genuine dispute of material fact
exists, a court need only consider the materials cited by the
parties. Fed.R.Civ.P. 56(c)(3). "A district court is
not. . . obligated to wade through and search the entire
record for some specific facts that might support the
nonmoving party's claim." InterRoyal Corp. v.
Sponseller, 889 F.2d 108, 111 (6th Cir. 1989), cert,
denied, 494 U.S. 1091 (1990). If it so chooses, however,
the court may consider other properly presented materials in
the record. Fed.R.Civ.P. 56(c)(3).