Jeffrey Moran v. Al Basit LLC ( 2015 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 15a0105p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
JEFFREY MORAN, ┐
Plaintiff-Appellant, │
│
│ No. 14-2335
v. │
>
│
AL BASIT LLC; AL GHANI LLC; ZAIN SYED, ZOHAIB │
SYED, │
Defendants-Appellees. │
┘
Appeal from the United States District Court
for the Eastern District of Michigan at Ann Arbor.
No. 5:13-cv-13625—Judith E. Levy, District Judge.
Decided and Filed: June 1, 2015
Before: KEITH, CLAY, and STRANCH, Circuit Judges.
_________________
COUNSEL
ON BRIEF: David A. Hardesty, GOLD STAR LAW, P.C., Troy, Michigan, for Appellant.
Kevin J. Campbell, THE ALLEN LAW GROUP, P.C., Detroit, Michigan, for Appellees.
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OPINION
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CLAY, Circuit Judge. Plaintiff Jeffrey Moran appeals the district court’s grant of
summary judgment to Defendants Al Basit LLC, Al Ghani LLC, Zain Syed, and Zohaib Syed
(collectively, “Defendants”) on Plaintiff’s claim that Defendants violated the Fair Labor
Standards Act of 1938, 29 U.S.C. § 201, et seq. (“FLSA”) by failing to properly compensate
Plaintiff for overtime work.
1
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For the reasons set forth below, we REVERSE the ruling of the district court granting
summary judgment in favor of Defendants and REMAND the case for further proceedings
consistent with this opinion.
BACKGROUND
Defendants own and operate two auto repair shops in Michigan. Both shops are called
Auto Pro. One is located in Warren, Michigan, and the other is located in Troy, Michigan.
Plaintiff was employed by Defendants as a mechanic at the Warren Auto Pro shop from July or
August of 2011 until April 30, 2013. Defendant Zain Syed manages the Warren Auto Pro shop.
The parties disagree about the beginning date of Plaintiff’s employment and the nature of
his compensation. Plaintiff recalls beginning to work at the Warren Auto Pro in July of 2011,
whereas Defendants contend that he began to work for them on August 17, 2011. Plaintiff
claims that he and Defendant Zohaib Syed agreed that Plaintiff would be paid $300 per week in
addition to “bonus type profit sharing,” and that he would work six days a week during the
store’s hours of operation–the equivalent of fifty-eight hours a week. (R. 20-3, Moran Dep.,
Page ID # 418.) Defendants claim that Plaintiff was hired to work thirty hours per week for
$300 weekly pay.
Plaintiff contends that, in practice, he worked an average of sixty-five to sixty-eight hours
per week for the duration of his employment. He testified that he was required to be at work
every weekday at 7:30 AM, half an hour before the shop opened. He then stayed at work, as
instructed by Defendants, until “the work was completed,” which meant he was typically at work
until 6:30 PM or 7:00 PM on weekdays. (Id.) Plaintiff stated that it was also “not unusual [for
him] to be there at 8:00 at night.” (Id. at 419.) On Saturdays, Plaintiff testified that he worked
from 7:30 AM until approximately 4:30 PM or 5:00 PM. During his deposition, Plaintiff at one
point claimed to have worked “on Sundays a lot of times” and later stated that he worked
“maybe six [Sundays] over the almost two-year period.” (Id. at 419, 423.)
According to Plaintiff, he always worked with a manager named John Blue, and typically
worked with one other mechanic. Because Plaintiff did not have a key to the auto shop, he was
let in every morning by Blue. Plaintiff further testified that Zohaib Syed never came to the
No. 14-2335 Moran v. Al Basit LLC, et al. Page 3
Warren Auto Pro, and that Zain Syed would usually only come in on Wednesday afternoons.
Plaintiff was never paid overtime by Defendants, but admitted to receiving “a little extra” money
on a few occasions. He also received a car loan from Zain Syed. (Id. at 420.)
Defendants deny Plaintiff’s allegations, claiming that Plaintiff never worked more than
thirty hours per week. They put forward paystubs and timesheets (which Defendants refer to as
“time schedules”) to substantiate this assertion. Plaintiff’s paystubs indicate that he was paid
$300 per week, reflecting thirty hours of work at an hourly rate of $10. The timesheets provided
by Defendants include entries for the total number of hours Plaintiff worked each day along with
a weekly hour total for each week of Plaintiff’s employment. According to these timesheets, in
all but five of the ninety weeks Plaintiff was employed by Defendants, Plaintiff worked exactly
thirty hours a week, despite his schedule varying notably from week to week.1 Defendant Zain
Syed claims to have updated the timesheets regularly by tracking his employees’ starting and
stopping times each day through a security camera system in place at the Warren Auto Pro shop.
According to Zain Syed, he had a practice of watching the security footage in order to determine
his employees’ arrival and departure times, from which he calculated the daily hour totals
reflected in the timesheets. He would write these calculations on slips of paper that he
subsequently discarded. Plaintiff challenges the veracity of the timesheets, claiming that they are
“false document[s] that w[ere] produced to substantiate [Defendants’] claim.” (R. 20-3, Moran
Dep., Page ID # 423.)
Defendants also submitted an affidavit from John Blue in which Blue denied opening the
shop for Plaintiff to work on customers’ vehicles, and stated that he did not permit Plaintiff “to
work on customer vehicles after [Blue] closed the shop to the public.” (R. 17-3, Affidavit of
John Blue, Page ID # 107.) Blue further stated that “Plaintiff barely worked 30 hours per week,
and never worked over 30 hours per week. Plaintiff at times left work before completing his
scheduled partial day.” (Id. at 106.)
1
For example, on the week of June 20, 2012, Defendants’ timesheets reflect that Plaintiff worked a total of
thirty hours, which is the sum of the following daily hour totals for that week: 8+4+4+4+4+6 = 30, while on the
week of January 30, 2013, Defendants’ timesheets reflect that Plaintiff worked a total of thirty hours, which is the
sum of the following daily hour totals: 6+6.5+5+4.5+4+4 = 30. Based on Defendants’ timesheets, Plaintiff almost
always worked exactly thirty hours a week despite rarely, if ever, having the same weekly schedule.
No. 14-2335 Moran v. Al Basit LLC, et al. Page 4
Plaintiff complained to Zain Syed “maybe six or seven” times over the course of his
employment about “not getting [his] overtime, [and] not getting [his] bonuses over and above
what [he] was supposed to be getting.” (R. 20-3, Moran Dep., Page ID # 420.) On April 30,
2013, Plaintiff spoke with Zain Syed and “asked for more money, overtime or [his] bonus
money.” (Id. at 427.) He claims that this discussion turned into an argument during which he
was told to “either hit the road or stay working like it is.” (Id.) Plaintiff did not subsequently
return to Auto Pro.
On August 22, 2013, Plaintiff filed his complaint against Defendants raising two claims.
First, Plaintiff alleged that Defendants failed to compensate him properly for overtime work, in
violation of § 207 of the FLSA. Second, Plaintiff alleged that Defendants terminated his
employment in retaliation for requesting overtime compensation, in violation of § 215 of the
FLSA. After the close of discovery, Defendants moved for summary judgment. The district
court granted Defendants’ motion, dismissing both of Plaintiff’s claims. Plaintiff subsequently
filed a motion for reconsideration, which the district court denied. Plaintiff timely appealed.
The sole issue in this appeal is Plaintiff’s overtime compensation claim. Plaintiff does not appeal
the district court’s grant of summary judgment with respect to his retaliatory discharge claim.
DISCUSSION
This Court reviews a district court’s grant of summary judgment de novo. Mutchler v.
Dunlap Mem’l Hosp., 485 F.3d 854, 857 (6th Cir. 2007). Summary judgment is appropriate
where “the pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.” Id.; Fed. R. Civ. P. 56(c). When
considering whether to grant summary judgment, all reasonable inferences must be made in
favor of the non-moving party. Little Caesar Enters., Inc. v. OPPCO, LLC, 219 F.3d 547, 551
(6th Cir. 2000). “[A]t the summary judgment stage the judge’s function is not himself to weigh
the evidence and determine the truth of the matter but to determine whether there is a genuine
issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). In undertaking this
inquiry, “credibility judgments and weighing of the evidence are prohibited.” Schreiber v. Moe,
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596 F.3d 323, 333 (6th Cir. 2010) (quoting Biegas v. Quickway Carriers, Inc., 573 F.3d 365, 374
(6th Cir. 2009)).
The FLSA requires employers to pay their employees “at a rate not less than one and one-
half times the regular rate” for work exceeding forty hours per week. 29 U.S.C. § 207(a)(1).
Employers who fail to do so may be liable to their affected employees “in the amount of their . . .
unpaid overtime compensation” and “in an additional equal amount as liquidated damages.”
29 U.S.C. § 216(b). “The legislative debates indicate that the prime purpose of the legislation
was to aid the unprotected, unorganized and lowest paid of the nation’s working population; that
is, those employees who lacked sufficient bargaining power to secure for themselves a minimum
subsistence wage.” Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697, 707 n. 18 (1945). And the
FLSA entrusted enforcement to those employees: “If there shall occur violations of either the
wages or hours, the employees can themselves . . . maintain an action in any court to recover the
wages due them . . . . [Section 216 of the FLSA] puts directly into the hands of the employees
who are affected by violation the means and ability to assert and enforce their own rights . . . .”
Id. at 706 n. 16 (quoting 83 Cong. Rec. 9264 (statement of Rep. Kent Keller)). To prevail in an
FLSA overtime suit, a plaintiff must prove, by a preponderance of the evidence, that he
“performed work for which he was not properly compensated.” Anderson v. Mt. Clemens
Pottery Co., 328 U.S. 680, 687 (1946), superseded by statute on other grounds, Portal-to-Portal
Act of 1947, Pub. L. No. 80-49 § 4(a), 61 Stat. 86-87 (codified at 29 U.S.C. 254(a)), as
recognized in Integrity Staffing Solutions, Inc. v. Busk, 135 S. Ct. 513, 516-17 (2014). As the
Supreme Court has noted, “[t]he remedial nature of this statute and the great public policy which
it embodies, however, militate against making that burden an impossible hurdle for the
employee.” 328 U.S. at 687.
This appeal raises one simple question: Where Plaintiff has presented no other evidence,
is Plaintiff’s testimony sufficient to defeat Defendant’s motion for summary judgment? We hold
that it is. Plaintiff’s testimony coherently describes his weekly work schedule, including typical
daily start and end times which he used to estimate a standard work week of sixty-five to sixty-
eight hours. The district court characterized this testimony as “somewhat vague.” (R. 26,
Opinion and Order, Page ID # 475.) However, while Plaintiff’s testimony may lack precision,
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we do not require employees to recall their schedules with perfect accuracy in order to survive a
motion for summary judgment. It is unsurprising, and in fact expected, that an employee would
have difficulty recalling the exact hour he left work on a specific day months or years ago. It is,
after all, “the employer who has the duty under § 11(c) of the [FLSA] to keep proper records of
wages [and] hours,” and “[e]mployees seldom keep such records themselves.” Anderson,
328 U.S. at 687. Defendants emphasize the fact that Plaintiff’s testimony is inconsistent with the
allegedly contemporaneous timesheets Defendants provided to the court. But these timesheets
do not amount to objective incontrovertible evidence of Plaintiff’s hours worked. Plaintiff
denies the validity of these timesheets, which were handwritten by Defendants, and contends that
Defendants sanctioned his overtime work. Whether his testimony is credible is a separate
consideration that is inappropriate to resolve at the summary judgment stage.
We have previously found that a Plaintiff’s testimony can create a genuine issue of
material fact foreclosing summary judgment in a lawsuit brought under the FLSA. In O’Brien v.
Ed Donnelly Enters., Inc., 575 F.3d 567 (6th Cir. 2009), we considered a collective action
brought against an employer for underpayment of wages in violation of the FLSA. Although we
affirmed the district court’s decertification of the collective action in O’Brien, we considered the
district court’s grant of summary judgment as to the lead plaintiffs. Plaintiff O’Brien alleged
both that the defendants altered her time records and that she was required to work off-the-clock.
With respect to O’Brien’s “off-the-clock” claim, the defendants argued that they were “not liable
under the FLSA because there is no evidence that defendants knew that O’Brien was working
without compensation.” Id. at 595-96. Nonetheless, despite the lack of corroborating evidence,
we held that the district court “erred when it granted defendants’ motion for summary judgment
as to O’Brien’s ‘off the clock’ claim,’” since the plaintiff’s own “deposition testimony clearly
creates a genuine factual issue, because she asserts that [the defendants] knew that she was
working off the clock.” Id. at 596. The O’Brien court reached this conclusion despite the
plaintiff’s at times contradictory testimony. Id. at 595.
This holding is consistent with our decision in Harris v. J.B. Robinson Jewelers, where
we explicitly found that a plaintiff’s testimony is itself sufficient to create a genuine issue of
material fact. 627 F.3d 235 (6th Cir. 2010). In Harris, we considered the appropriateness of
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summary judgment where a plaintiff testified that her jeweler had replaced a diamond in her ring
with a smaller, less-valuable diamond. In that case, we reviewed the district court’s decision to
exclude the plaintiff’s testimony as well as its decision to exclude the affidavits of three
corroborating witnesses. Notably, we determined that “[the plaintiff’s] testimony alone is
sufficient to create a jury question regarding the alleged replacement [of her diamond].” Id. at
239 (emphasis added). The district court in this case disregarded the applicability of that
determination to the case at hand, focusing instead on the fact that the Harris court also deemed
admissible the sworn affidavits of the three corroborating witnesses. Such disregard was
mistaken. Our opinion in Harris clearly states that, regardless of the three additional affidavits,
the plaintiff’s testimony was itself sufficient to create a genuine issue of material fact.
The same principles at work in Harris and O’Brien apply here. Despite the lack of
corroborating evidence, Plaintiff’s testimony is sufficient to create a genuine dispute of material
fact that forecloses summary judgment at this juncture. Defendants cite to no Sixth Circuit
precedent for the opposite conclusion; rather, they rely on three district court opinions and a
handful of opinions from other circuits. None of these cases counsel in favor of ignoring clearly
applicable Sixth Circuit caselaw. The district court cases cited by Defendants are neither
precedential nor instructive in the present case, and we note that this Court did not have an
opportunity to review their reasonableness on appeal. Nor do the out-of-circuit cases cited by
Defendants belie the applicability of our own Circuit’s on-point precedent and the basic tenets of
summary judgment law to the case at hand.
CONCLUSION
On summary judgment, all reasonable inferences must be made in favor of the non-
moving party and, as we have held in the past, a plaintiff’s testimony alone may be sufficient to
create a genuine issue of material fact thereby defeating a defendant’s motion for summary
judgment. This is such a case. Here, Plaintiff put forward testimony that contradicted that of
Defendants, describing his typical work schedule with some specificity and estimating that he
worked sixty-five to sixty-eight hours a week on average. This contradictory testimony creates a
genuine issue of material fact.
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We therefore REVERSE the ruling of the district court granting summary judgment in
favor of Defendants and REMAND the case for further proceedings consistent with this opinion.