Desmond v. Pngi Charles Town Gaming, LLC, Civil Action No. 3:06-CV-128.

• Court: United States District Courts. 4th Circuit. Northern District of West Virginia
• Writing for the Court: John Preston Bailey
• Citation: 661 F.Supp.2d 573
• Parties: John S. DESMOND, Dana E. Witherspoon, and Larry Sanders, Plaintiffs, v. PNGI CHARLES TOWN GAMING, LLC d/b/a Charles Town Races & Slots, Defendant.
• Decision Date: 16 September 2009
• Docket Number: Civil Action No. 3:06-CV-129.,Civil Action No. 3:06-CV-135.,Civil Action No. 3:06-CV-128.

661 F.Supp.2d 573 John S. DESMOND, Dana E. Witherspoon, and Larry Sanders, Plaintiffs,
v.
PNGI CHARLES TOWN GAMING, LLC d/b/a Charles Town Races & Slots, Defendant. Civil Action No. 3:06-CV-128. Civil Action No. 3:06-CV-129. Civil Action No. 3:06-CV-135. United States District Court, N.D. West Virginia, Martinsburg. September 16, 2009.

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COPYRIGHT MATERIAL OMITTED

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Paul B. Weiss, Martin & Seibert, LC, Martinsburg, WV, for Plaintiffs.

Charles F. Printz, Jr., Bowles Rice McDavid Graff & Love LLP, Martinsburg, WV, for Defendant.

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT AND GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT

JOHN PRESTON BAILEY, District Judge.

Pending before this Court are Plaintiffs' Motion for Partial Summary Judgment (Doc. 132) and Defendant's Motion for Partial Summary Judgment (Doc. 133). Both motions have been fully briefed and are ready for disposition by this Court. For the reasons hereinafter stated, this Court will grant in part and deny in part both of the motions.

These consolidated actions were brought under the Fair Labor Standards Act, 29 U.S.C. § 201, et seq., ("FLSA") by former employees of defendant PNGI Charles Town Gaming, LLC ("PNGI"), asserting that PNGI violated the FLSA by failing to pay overtime compensation as required by the Act. PNGI defended on the basis that the employees were administrative employees who were exempt from the overtime provisions of the FLSA. This Court agreed with PNGI and granted summary judgment in the defendant's favor. 2008 WL 153492 (N.D.W.Va. January 14, 2008). The United States Court of Appeals for the Fourth Circuit disagreed, found the positions not to be exempt from the FLSA overtime provisions, and reversed and remanded the action to this Court. Desmond

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v. PNGI Charles Town Gaming, L.L.C., 564 F.3d 688 (4th Cir.2009).

As a housekeeping matter, the plaintiffs have moved for the entry of summary judgment on liability consistent with the decision of the Fourth Circuit. This portion of the plaintiffs' Motion will be GRANTED.

With respect to the damage phase of this action, the parties seek ruling on a number of issues:

1. The calculation of the number of overtime hours attributable to each of the three plaintiffs;

2. The method of calculating compensation for the unpaid overtime hours;

3. Whether the plaintiffs are entitled to liquidated damages;

4. With respect to plaintiff Desmond only, whether the actions of the defendant were wilful such as to provide for a three year statute of limitations; and

5. Whether the plaintiffs are entitled to recover attorneys fees and costs.

This Court will deal with each issue seriatim.

A. The Calculation of Overtime Hours.

It is undisputed that the defendant did not keep time records as to the three plaintiffs. "Section 11(c) of the FLSA requires employers subject to the provisions of the Act to make, keep, and preserve records of their employees' wages, hours, and other conditions and practices of employment, as prescribed by the Secretary's regulations. 29 U.S.C. § 211(c). These regulations require employers to make, keep, and preserve records of the daily and weekly hours actually worked by their employees, including meal periods in which the employees are not completely relieved from duty, and to make these records available for inspection by the Secretary's representatives. 29 C.F.R. Part 516." Martin v. Deiriggi, 1991 WL 323416 (N.D.W.Va. Dec. 12, 1991), affirmed by Martin v. Deiriggi, 985 F.2d 129 (4th Cir. 1993).

The Fourth Circuit, in a decision written by Associate Justice Powell, stated that "[w]here an employer fails to keep adequate and accurate records of employees' wages and hours as expressly required by the FLSA, the Secretary's burden of showing the extent of uncompensated work is reduced." Martin v. Deiriggi, 985 F.2d 129, 132 (4th Cir.1993), citing Anderson v. Mount Clemens Pottery Co., 328 U.S. 680, 687, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946).

As noted by the Sixth Circuit in Fegley v. Higgins, 19 F.3d 1126 (6th Cir. 1994):

Addressing the burden of proof for an employee suing for unpaid overtime or wages under the FLSA, the Supreme Court has held:

[W]here the employer's records [of work hours] are inaccurate or inadequate and the employee cannot offer convincing substitutes .... we hold that an employee has carried out his burden if he proves he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee's evidence. If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result be only approximate.

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Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687-88, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946), superseded by statute on other grounds as stated in Carter v. Panama Canal Co., 463 F.2d 1289, 1293 (D.C.Cir.), cert. denied, 409 U.S. 1012, 93 S.Ct. 441, 34 L.Ed.2d 306 (1972); see Shultz v. Tarheel Coals, Inc., 417 F.2d 583, 584 (6th Cir.1969) (where employees presented evidence of work for which they were improperly compensated, burden shifted to employer "`to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the ... evidence.'" (quoting Mt. Clemens)). In Mt. Clemens, the Supreme Court noted that it is the employer who has the responsibility of keeping records of hours under the FLSA. 328 U.S. at 687, 66 S.Ct. 1187.

19 F.3d at 1132-33.

Similarly, in Hunter v. Sprint Corporation, 453 F.Supp.2d 44, 52-53 (D.D.C. 2006), the Court held that "where the employer's time records are inaccurate or incomplete, the plaintiff-employee can make out a prima facie case of an FLSA violation by alleging that he performed work for which he was not properly compensated and then `produc[ing] sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.' Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946). At that point, the burden shifts to the defendant-employer to `come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee's evidence.' Id. at 687-88, 66 S.Ct. 1187. The fact that the employee's evidence is merely an approximation is not a bar to recovery. Id. at 688, 66 S.Ct. 1187; Reeves v. Int'l Tel. & Tel. Corp., 616 F.2d 1342, 1351 (5th Cir.1980) (`Where the inaccuracy is due to the employer's failure to keep adequate records as required by statute, imprecise evidence on quantum can provide a "sufficient basis" for damages.')."

"An award to an employee for overtime compensation pursuant to the FLSA may be appropriate even if the award is only an approximation of the overtime hours actually worked. Alvarez v. IBP, Inc., 339 F.3d 894, 914 (9th Cir.2003) (citing Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946)). Once the employee has carried his burden of showing that he worked overtime hours for which he was not compensated and the only uncertainty is the amount of damages, an employer's failure to keep sufficiently detailed records of the hours worked cannot bar recovery of damages. Mt. Clemens Pottery, 328 U.S. at 688, 66 S.Ct. 1187. However, even if the employee shows that the amount of hours can be determined based on reasonable inferences, the employer may rebut the employee's reasonable inferences `with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee's evidence.' Id. at 687-88 [66 S.Ct. 1187]; Alvarez, 339 F.3d at 915." Tumulty v. FedEx Ground Package System, Inc., 2005 WL 1979104 (W.D.Wash. Aug. 16, 2005).

In this case, the determination of the number of overtime hours has been simplified by the parties. The defendant has conceded the number of hours that each employee has worked. See Memorandum of Law in Support of Defendant's Motion for Partial Summary Judgment (Doc. 133-1) ("The parties have stipulated to the hours worked in this case, and are simply awaiting a determination of the proper

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method of calculating damages.").¹

Accordingly, this Court finds that the number of hours of overtime to be credited to the plaintiffs are as follows: John Desmond-849.05 hours (1,231.71 if three years); Larry Sanders-624.99 hours; and Dana Witherspoon-669.99 hours.

B. The Method of Calculating Compensation

"[T]he FLSA has been termed the `minimum wage/maximum hour law.'" Monahan v. County of Chesterfield, 95 F.3d 1263, 1266 (4th Cir.1996). "The FLSA is clearly structured to provide workers with specific minimum protections against excessive work hours and substandard wages." Id. at 1267, citing Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 739, 101 S.Ct. 1437, 67 L.Ed.2d 641 (1981). "[T]he `FLSA should be given a broad reading, in favor of coverage. It is a remedial statute that "has been construed liberally to apply to the furthest reaches consistent with congressional direction."'" Id., quoting Kelley v. Alamo, 964 F.2d 747, 749-50 (8th Cir.1992), in turn quoting Mitchell v. Lublin, McGaughy & Assocs., 358 U.S. 207, 211, 79 S.Ct. 260, 3 L.Ed.2d 243 (1959).

"Over the past 20 years, courts have adopted two markedly different approaches to calculating back pay in exemption misclassification cases." DeCamp & Tully, Half-Time or Time and a Half? Calculating Overtime in Misclassification Cases Employers Guide to...