Eakins v. Alvarado Broadcasting Company

• Citation: 125 F. Supp. 87
• Decision Date: 25 June 1954
• Docket Number: Civ. No. 2482.
• Parties: Philip EAKINS, Plaintiff, v. ALVARADO BROADCASTING COMPANY, Defendant.
• Court: U.S. District Court — District of New Mexico

125 F. Supp. 87

Philip EAKINS, Plaintiff, v. ALVARADO BROADCASTING COMPANY, Defendant.

Civ. No. 2482.

United States District Court D. New Mexico.

June 25, 1954.

T. B. Keleher, Albuquerque, N. M., for plaintiff.

Rodey, Dickason, Sloan, Mims & Akin, Albuquerque, N. M., for defendant.

WALLACE, District Judge.

Plaintiff, Philip Eakins, brings this action under the Fair Labor Standards Act¹ to recover from defendant, Alvarado Broadcasting Company, for overtime hours allegedly worked but for which no compensation was received.

The evidence indicates that plaintiff worked for the defendant as an announcer from April 1, 1952, until July 14, 1953. During this term of employment the plaintiff displayed considerable initiative as well as ability and on February 1, 1953, was made Chief Announcer for the defendant radio station. Plaintiff was discharged immediately after a letter, signed by plaintiff, was delivered to the managing officers of the defendant, in which letter various suggestions as well as grievances of different employees of the defendant were aired, including the remark that the plaintiff was working some 60 hours per week and not being paid overtime. Plaintiff's evidence upon which recovery is sought consists of plaintiff's oral testimony and a written recapitulation of hours worked over the entire term of employment, which recapitulation was made up by plaintiff from memory after his employment had been terminated; this recapitulation implies that the plaintiff worked something over 900 overtime hours for which he was not paid.

After careful consideration the Court has concluded that the plaintiff did not establish by the proper measure of proof just what unpaid overtime hours he actually worked.

The plaintiff in testifying from the witness stand made a very favorable impression on the Court; and, the Court is satisfied that plaintiff no doubt worked hours in excess of 40 which inured to the benefit of his employer for which he was not paid; and, doubtless, the defendant company, through its managing officers, although not specifically aware of the actual time spent by the plaintiff in connection with his radio station duties, blinked its eyes insofar as ascertaining the actual number of hours worked each week by the plaintiff. However, the proof as adduced will not support a specific finding by the Court of unpaid overtime hours.² Although the plaintiff in a case such as this need not prove exactly just what hours were worked the evidence must be sufficiently specific and conclusive to establish with reasonable certainty not only that overtime hours were worked, but the approximate number thereof. The plaintiff's claim, in the instant case, is predicated, almost exclusively, upon the written resumé of daily hours worked over a 15 month period, which resumé was prepared from memory without the aid of any written notation made contemporaneous to the time the extra hours were being worked; and, the statement was prepared after the termination of plaintiff's employment. The Court does not believe that the plaintiff is entitled to a finding that he did in fact work some 900 overtime hours based upon such evidence, and the Court certainly cannot by mere conjecture make a finding that some lesser number of hours were worked in the absence of some specific proof tending to accurately establish just what hours were worked.³

Although the Court does not condone the defendant's violation of the Fair Labor Standards Act in failing to keep detailed records as to the actual hours worked by each employee coming within the terms of the Act, such a failure on the part of the defendant cannot serve as positive evidence to establish that the plaintiff did in fact work overtime hours for which he did not receive compensation. This breach of duty by the defendant, although serving to discredit defendant's...