Summary
In Millington v. Morrow County Board of Commissioners, No. 2:06-cv-347, 2007 WL 2908817, at **7-8 (S.D. Ohio Oct. 4, 2007), there was no evidence that the plaintiff had told his supervisors that he was working overtime or that his supervisors had any reason to know that he was working overtime.
Summary of this case from Hilton v. Executive Self Storage Associates, Inc.Opinion
Case No. 2:06-cv-347.
October 4, 2007
OPINION AND ORDER
This is an action brought by plaintiff John Millington against the Board of Commissioners of Morrow County, Ohio, and Olen Jackson, Donald Staley and Jean McClintock, individually and in their official capacity as commissioners of Morrow County. Plaintiff, a former county employee, asserts claims for unpaid overtime compensation under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 207 (Count III), and the Minimum Fair Wage Standards Act ("MFWSA"), Ohio Rev. Code § 4111.03 (Count IV). This matter is now before the court on the defendants' motion for summary judgment and plaintiff's motion for partial summary judgment.
All other claims in this action have been dismissed. See Orders of January 16, 2007, and May 1, 2007.
The procedure for granting summary judgment is found in Fed.R.Civ.P. 56(c), which provides:
The judgment sought shall be rendered forthwith if 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.
The evidence must be viewed in the light most favorable to the nonmoving party. Adickes v. S.H. Kress Co., 398 U.S. 144 (1970). Summary 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 v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). However, summary judgment is appropriate if the opposing party 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 (1986). See also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986).
The Sixth Circuit Court of Appeals has recognized that Liberty Lobby, Celotex and Matsushita effected "a decided change in summary judgment practice," ushering in a "new era" in summary judgments. Street v. J. C. Bradford Co., 886 F.2d 1472, 1476 (6th Cir. 1989). The court in Street identified a number of important principles applicable in new era summary judgment practice. For example, complex cases and cases involving state of mind issues are not necessarily inappropriate for summary judgment. Id. at 1479. In addition, in responding to a summary judgment motion, the nonmoving party "cannot rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact, but must `present affirmative evidence in order to defeat a properly supported motion for summary judgment.'" Id. (quoting Liberty Lobby, 477 U.S. at 257). The nonmoving party must adduce more than a scintilla of evidence to overcome the summary judgment motion. Id. It is not sufficient for the nonmoving party to merely "`show that there is some metaphysical doubt as to the material facts.'" Id. (quoting Matsushita, 475 U.S. at 586). Moreover, "[t]he trial court no longer has a duty to search the entire record to establish that it is bereft of a genuine issue of material fact."Id. That is, the nonmoving party has an affirmative duty to direct the court's attention to those specific portions of the record upon which it seeks to rely to create a genuine issue of material fact.
I. Motions to Strike Affidavits
Defendants have filed motions to strike portions of plaintiff's affidavit and to strike the affidavit of Linda Millington, plaintiff's wife. Defendants argue that the affidavits fail to comply with Fed.R.Civ.P. 56(e), which provides in relevant part:
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.
Defendants first note that plaintiff's affidavit refers in paragraphs 11, 12, 16 and 21 to mileage logs, phone logs, phone records, call logs and comp time requests, but that none of these documents are attached to the affidavit. The exact nature of the documents to which plaintiff refers is not clear. With the exception of the telephone call log kept by Gary Eckert, attached as an exhibit to his affidavit, no other documents have been properly authenticated. Plaintiff attached minutes of Zoning Commission meetings to his affidavit, but those records have not been certified. The other records to which plaintiff refers, such as mileage logs, phone records, and comp time requests, were not attached.
An affidavit must be disregarded where the movant fails to attach or produce documents to which the affiant refers in his affidavit, as required under Fed.R.Civ.P. 56(e). Logan v. Denny's, Inc., 259 F.3d 558, 570 (6th Cir. 2001). To be admissible in summary judgment proceedings, documents must be authenticated by and attached to an affidavit. Williams v. United Dairy, Inc., No. 2:03-cv-868, 2005 WL 1077596 at *5 (S.D. Ohio April 18, 2005). Unauthenticated exhibits are not proper evidence for opposing or supporting a summary judgment motion. Steele v. Jennings, No. 2:04-cv-189, 2005 WL 2124152 at *3 (S.D. Ohio Aug. 31, 2005). See also Lomax v. Sears, Roebuck Co., 2000 WL 1888715 at *5 (6th Cir. Dec. 19, 2000). Since the documents referred to in plaintiff's affidavit have not been properly authenticated, and since most of them are not attached to the affidavit as required under Rule 56(e), any reference to these documents in plaintiff's affidavit must be disregarded.
Defendants further argue that in the absence of certified copies of these documents, plaintiff's statements based on these documents are hearsay and therefore not admissible under 56(e). The Sixth Circuit has held that "`it is well settled that only admissible evidence may be considered by the trial court in ruling on a motion for summary judgment.'" Wiley v. United States, 20 F.3d 222, 226 (6th Cir. 1994) (quoting Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1181 (9th Cir. 1988)). Hearsay evidence may not be considered on a motion for summary judgment. Jacklyn v. Schering-Plough Healthcare Products Sales Corp., 176 F.3d 921, 927 (6th Cir. 1999).
Defendants also contend that certain statements in plaintiff's affidavit contradict his previous sworn deposition testimony. A party may not create a factual issue by filing an affidavit, after a motion for summary judgment has been made, which contradicts his earlier deposition testimony. Moore v. LaFayette Life Ins. Co., 458 F.3d 416, 433-34 (6th Cir. 2006) Gagne v. Northwestern National Ins. Co., 881 F.2d 309, 315 (6th Cir. 1989).
Plaintiff states in his affidavit that he was required to work in excess of forty hours per week without compensation (¶ 13), that he was not required to document his time in excess of forty hours per week (¶ 15), and that the defendants did not record the times he worked through lunch (¶ 19). However, plaintiff testified during his deposition that his time sheets reflected the overtime he worked, for example, for Zoning Commission meetings (Dep. p. 95); that he filled in the compensatory time accrued and was unaware of any overtime worked which was not reflected on the time sheets (Dep. p. 96); that he reviewed and approved the time sheets he submitted, and that they were correct to the best of his knowledge (Dep. p. 94); that the eight-hour period he worked during the day included any lunch period he took (Dep. p. 106); that he was paid all of his accrued compensatory time upon his termination (Dep. p. 72); that he did not think there was any problem with the calculation of his compensatory time balance remaining at his termination (Dep. p 74); and that at some point he was required to apply for overtime use in advance (Dep. pp 109-112). The court agrees that plaintiff's deposition testimony is in conflict with the statements in paragraphs 13, 15 and 19 of his affidavit.
Defendants' motion to strike paragraphs 11 through 13, 16, 17, and 23 of plaintiff's affidavit and the attached list of overtime worked to the extent that it relies on the unattached and uncertified documents is granted. However, in considering the pending motions for summary judgment, the court, in the alternative, will also consider the information provided in plaintiff's affidavit.
Defendants have also moved to strike the affidavit of Linda Millington. Defendants argue that Linda Millington was not properly disclosed as a witness under Fed.R.Civ.P. 26(a)(1)(A), which requires a party, without awaiting a discovery request, to provide "the name and, if known, the address and telephone number of each individual likely to have discoverable information that the disclosing party may use to support its claims or defenses, unless solely for impeachment, identifying the subjects of the information." As the court noted in Quintanilla v. AK Tube LLC, 477 F.Supp.2d 828, 836 (N.D.Ohio 2007):
This rule is not merely a technical procedural rule. It is enforced for good reasons, among them that notice of possible witnesses is consistent with full and fair disclosure, and disclosure allows opposing parties the opportunity, or at least the option, to conduct its own deposition or other investigation of the potential witness's statements.
The failure to timely disclose a witness is sanctionable by exclusion of that witness's testimony. Fed.R.Civ.P. 37(c)(1).
Defendants note that while Linda Millington was listed as a potential witness in plaintiff's initial disclosure, she was listed as a character witness, not as a witness with knowledge of the overtime issues in the case. Defendants argue that if they had been notified that Mrs. Millington was a witness with knowledge concerning the overtime allegedly worked by plaintiff, they could have made an informed decision whether to depose her. However, they were deprived of that opportunity. The court concludes that her affidavit should be stricken for failure to comply with Rule 26(a)(1)(A).
Defendants also argue that Mrs. Millington's affidavit should be stricken because the statements therein are not based on personal knowledge, but rather on hearsay. An affidavit filed in opposition to a motion for summary judgment "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Fed.R.Civ.P. 56(e). A party opposing a motion for summary judgment cannot use hearsay or other inadmissible evidence to create a genuine issue of fact. Sperle v. Michigan Dept. of Corrections, 297 F.3d 483, 495 (6th Cir. 2002) (affidavit insufficient to create genuine issue of fact where it was not based on personal knowledge); Mitchell v. Toledo Hosp., 964 F.2d 577, 584 (6th Cir. 1992) (Rule 56(e) affidavit improper where it was not made on personal knowledge and did not set forth facts that would be admissible into evidence).
The statements in Linda Millington's affidavit concern phone conversations and other information about which she had no personal knowledge. There is no information in the affidavit indicating that she was a party to any of these phone conversations. Defendants' motion to strike her affidavit as containing inadmissible hearsay is well taken.
II. Facts of the Case
The record reveals that starting in July of 2001, plaintiff was employed by Morrow County as a part-time zoning inspector. He was paid a flat monthly fee for that service. In 2004, funding became available for a full-time position, and plaintiff was hired by the defendant commissioners as a full-time zoning inspector on February 1, 2004. Plaintiff was advised by the commissioners at his job interview that cash payments would not be made for overtime work due to budgetary constraints, but that compensatory time would be awarded instead. This policy was in keeping with a resolution which was adopted by the Board of Commissioners on August 9, 1999, and included in § 5.2(F) of the County Personnel Policy.
Plaintiff's normal work hours were from 8:00 a.m. to 4:00 p.m. Plaintiff was paid an hourly rate. Plaintiff was paid for a half-hour lunch break regardless of whether he ate lunch or worked during that period, and this half-hour lunch period counted toward the forty-hour work week. If plaintiff used any vacation time, sick leave, or compensatory time during the week, that time also counted toward the forty-hour work week. If plaintiff worked over forty hours during the week, he was permitted to claim compensatory time at a rate of time-and-a-half for each hour over forty he worked.
For each two-week pay period, plaintiff was required to fill out a time sheet reporting the number of hours worked and the amount of vacation, sick leave, and compensatory time used. At times, plaintiff provided the information to Gary Eckert, the zoning commission clerk, who filled in the form for plaintiff, and plaintiff then signed the form. Plaintiff occasionally attended zoning commission meetings after work, or worked beyond normal hours when he was out in the field on a call. On such occasions, he claimed compensatory time on his time sheet. Beginning in the fall of 2004, the commissioners adopted a policy requiring employees to obtain permission to work overtime in advance by completing a form. Plaintiff submitted several such requests for work such as attending zoning commission meetings, and his requests to work overtime were always granted.
For each two-week pay period, employee time sheets were compiled by Cheryl Heacock, an assistant clerk for the county commissioners. She submitted the sheets along with a cover letter to one of the commissioners for signature before sending the information to the payroll clerk in the auditor's office. Both Ms. Heacock and the Auditor's Office kept records of the employees' compensatory time balances.
The commissioner performing this administrative function was typically the current chairman of the board of commissioners, a position which the commissioners shared in turn, rotating on an annual basis.
Plaintiff's employment was terminated on November 20, 2006. At the time of termination, plaintiff was given a cash payment commensurate with his compensatory time balance.
III. Plaintiff's Claims A. Overtime Claims — FLSA and MFWSA
Plaintiff asserts claims under the FLSA and the MFWSA. Plaintiff claims that the defendants violated federal and Ohio law by giving him compensatory time instead of cash payments for overtime worked. Plaintiff further claims that he worked some overtime hours answering phone calls at home for which he was not paid in cash or in compensatory time. Plaintiff also claims that the defendants violated the law by failing to keep adequate payroll records.
The defendants have moved for summary judgment on plaintiff's claims. Plaintiff has filed a cross-motion for partial summary judgment on the issues of whether he should have received overtime compensation for answering phone calls at home, and whether the defendants could legally compensate him for overtime with compensatory time instead of cash payments.
The FLSA provides:
[N]o employer shall employ any of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.29 U.S.C. § 207(a)(1). The relevant Ohio provision, Ohio Rev. Code § 4111.03(A), contains requirements identical to those in § 207(a)(1), and incorporates the procedures and standards contained in the FLSA. See Briscoe v. Columbus Metropolitan Area Comm. Action Org., No. 81AP-887 (10th Dist.), 1982 WL 4028 at *3 (Ohio App. Mar. 9, 1982) ("By virtue of R.C. 4111.03(A), Ohio defers to federal regulations and case law for the determination of eligibility for overtime compensation.").
The FLSA requires employers to pay their employees time-and-a-half for work performed in excess of forty hours per week. Acs v. Detroit Edison Co., 444 F.3d 763, 764-65 (6th Cir. 2006). An employee who brings a claim under the FLSA for unpaid overtime compensation has the burden of proving that he performed work for which he was not adequately compensated. Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 686-87 (1946); Myers v. Copper Cellar Corp., 192 F.3d 546, 551 (6th Cir. 1999).
To "employ" includes "to suffer or permit to work." 29 U.S.C. § 203(g). The Department of Labor regulations state that "[w]ork not requested but suffered or permitted is work time[,]" and that if "[t]he employer knows or has reason to believe that" an employee "is continuing to work," then "the time is working time." 29 C.F.R. § 785.11.
If the employer knows or has reason to believe that the employee is continuing to work, and that work was suffered or permitted by the employer, the employee must be compensated for overtime even if the employer did not ask that the employee work during that time. Kosakow v. New Rochelle Radiology Assocs., P.C., 274 F.3d 706, 718 (2d Cir. 2001). Once an employer knows or has reason to know that an employee is working overtime, it cannot deny compensation even where the employee fails to claim overtime hours. Holzapfel v. Town of Newburgh, N.Y., 145 F.3d 516, 524 (2d Cir. 1998). The requirement to pay overtime applies to work performed away from the employer's premises or at home if the employer knows or has reason to believe that the work is being performed. C.F.R. § 785.12. An employer need not have actual knowledge of off-site work; constructive knowledge is sufficient. Holzapfel, 145 F.3d at 524.
However, "an employer cannot suffer or permit an employee to perform services about which the employer knows nothing." Id. There is no violation of the FLSA where the employee performs uncompensated work but deliberately prevents his employer from learning of it. Forrester v. Roth's I.G.A. Foodliner, Inc., 646 F.2d 413, 414 (9th Cir. 1981).
B. Failure to Pay Overtime for Phone Calls
Plaintiff alleges that he did not receive compensatory time for overtime which he worked beyond his forty-hour work week. Plaintiff claims that he worked an average of five hours per week at home answering phone calls. Defendants argue that plaintiff has failed to produce sufficient evidence to raise a genuine issue of material fact in regard to whether he actually worked at least five hours every week beyond the forty-hour work week.
The only documentation of overtime work performed by plaintiff consists of the time sheets completed by plaintiff, his compensatory time use requests, and his requests to work overtime. The list of overtime attached as an exhibit to plaintiff's affidavit is a record of the overtime he reported and for which he received compensatory time. Compensatory time was awarded for the overtime reflected in these documents. Defendants note that although plaintiff refers to phone logs, he has not produced any records, let alone contemporaneous records, documenting the calls he allegedly answered at home. Although he refers to mileage logs in his affidavit, no mileage logs have been produced, presumably since when plaintiff became a full-time zoning inspector, he was provided a county vehicle and no longer had to keep mileage records. Staley Dep., p. 41.
Plaintiff's bare allegation that he worked an average of five hours every week at home is insufficient to meet his burden of proof. Mere conclusory, factually unsupported allegations are insufficient to withstand a motion for summary judgment. Gagne, 881 F.2d at 316. See also Hartsel v. Keys, 87 F.3d 795, 804 (6th Cir. 1996) (mere subjective, vague or conclusory allegations are insufficient to preclude summary judgment); Mitchell, 964 F.2d at 585 (statements amounting to rumors, conclusory allegations and subjective beliefs insufficient to defeat summary judgment). This general rule applies in the context of overtime claims under the FLSA. See Simmons v. Wal-Mart Associates, Inc., No. 2:04-cv-51, 2005 WL 1684002 (S.D.Ohio 2005) (employee's bald assertions of overtime hours worked, unsupported by any documentation, insufficient to create a genuine issue of material fact); Gregg v. SBC/Ameritech, Nos 2:02-cv-980, 2:02-cv-1232 and 2:03-cv-636, 2005 WL 1514114 (S.D.Ohio June 24, 2005) (where plaintiff failed to identify support for his position in the record, unsupported factual contentions will not enable him to evade summary judgment on his FLSA claim).
Plaintiff relies on a phone log which was maintained by Greg Eckert, the clerk for the Zoning Commission, which describes calls received by the zoning office. The log is attached as an exhibit to Eckert's affidavit. Eckert stated that if plaintiff told him he had received a call at home, he would include it in the log. Eckert Aff., ¶ 4. The log, which includes calls received from February 7, 2005, to August 4, 2006, reflects two calls on April 27, 2005, and June 13, 2005, which were specifically noted as being received by plaintiff at home. There is nothing to indicate how long the calls lasted. This evidence is insufficient to support plaintiff's claim that he spent an average of five hours per week answering phone inquiries at home. If anything, these two calls would fall within the de minimus exception applicable to FLSA claims where the amount of theoretically compensable work is negligible. See Brock v. City of Cincinnati, 236 F.3d 793, 804 (6th Cir. 2001).
An employee bringing an action under the FLSA for unpaid overtime must first demonstrate that he has performed work for which he was not compensated. Anderson, 328 U.S. at 687-88. Plaintiff must produce sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.Id. Here plaintiff has submitted no evidence beyond bare allegations and vague undocumented estimates to support his claim. This is not sufficient to survive summary judgment. See Harvill v. Westward Communications, L.L.C., 433 F.3d 428 (5th Cir. 2005) (affirming summary judgment for employer where plaintiff failed to present evidence of the amount or the extent of hours she worked overtime, or any evidence that the employer was aware that she worked overtime).
In order to establish his overtime claims, plaintiff must also show that the defendants knew or had reason to know that he was making phone calls at home. Plaintiff technically reported to the commissioners. However, he usually worked without direct supervision. Staley testified that although he occasionally went with plaintiff on zoning calls, he usually had no personal knowledge of when plaintiff worked. Staley Dep., p. 34. Jackson stated that he had very limited involvement in plaintiff's work, and that he only became involved if he received a complaint about plaintiff's handling of a zoning matter. Jackson Dep., p. 35. He had no knowledge of plaintiff performing any duties after hours other than to attend Zoning Commission meetings. Jackson Dep., p. 50; Aff. ¶ 14-15.
Plaintiff argues that the defendants should have been aware that he was receiving telephone calls at home from the phone log maintained by Eckert. However, Eckert was not plaintiff's supervisor. The phone logs were submitted to the Zoning Commission during their monthly meetings, but were not submitted to the commissioners. Eckert Aff., ¶¶ 6, 8. Plaintiff also notes the minutes from the Zoning Commission meeting held on January 18, 2005, contained in plaintiff's cross-motion for summary judgment, attachment #4. Those minutes indicate that plaintiff was asked during the meeting whether he had any problem with people calling him at home. Plaintiff responded that he got three to seven calls per day at his home, receiving one or two calls after 4:00 p.m., and that he tried to stop at home during the noon hour to get any messages and bring them back to the office for Eckert to return. There is no evidence that any of the defendants ever reviewed the minutes of the Zoning Commission meetings, or that they were otherwise aware of this disclosure. There is also no evidence that the commissioners should have been informed by the bills for his office cell phone that he was working after hours. However, the phone records, which are not authenticated or in evidence, were reviewed by Cheryl Heacock only to determine the number of minutes used. No one checked to see if the calls were related to county business. Heacock Dep., p. 43. Staley stated that he never reviewed the phone bills for plaintiff's office cell phone. Staley Dep., p. 72.
The "Mr. Staley" referred to in the minutes is Virgil Staley, the Zoning Commission chairman, not defendant Donald Staley. Gruber Dep., p. 50.
There is also other evidence which would preclude a reasonable jury from finding that the defendants "suffered" or "permitted" plaintiff to work overtime. There is evidence that although plaintiff's home phone number was included in a township directory when he was a part-time zoning inspector, when he was hired for the full-time zoning inspector position, he was expected to work within the scope of his regular hours. Staley Dep. p. 10. There is no evidence that plaintiff would have been unable to complete his work, including responding to phone inquiries, within the scope of the eight-hour work day, with the exception of attending evening functions such as Zoning Commission meetings, for which overtime was authorized. Staley looked at plaintiff's time logs and determined that plaintiff could do everything he was required to do within the forty hours. Staley Dep., p. 29. If plaintiff received calls at home, he was supposed to handle them the next day during work hours. Staley Dep., p. 11. Staley further stated that plaintiff had an answering machine and was not supposed to return calls at home. Rather, plaintiff was supposed to record the phone number and answer the calls the next day. Staley Dep., pp. 68, 76. Plaintiff could easily have placed a message on his answering machine asking callers to phone the zoning office the next day. Jackson also stated that plaintiff was expected to return phone calls the following work day, and he was unaware of any instance in which plaintiff did not follow that instruction. Jackson Aff., ¶ 15.
An instruction to an employee not to work overtime can establish that the employer does not "suffer" or "permit" work to be done, thereby relieving the employer from liability for overtime compensation, if the employee could have performed the work during regular hours and the employer did not pressure the employee to work overtime. Lindow v. United States, 738 F.2d 1057, 1060 (9th Cir. 1984); Gregg, 2005 WL 1514114 at *20. Here, there is evidence that plaintiff could have completed his work during regular hours, and no evidence that he was pressured in any way to work overtime returning phone calls.
Defendants also note that plaintiff submitted time sheets every pay period. Plaintiff's Dep., pp. 90-91. Those sheets required plaintiff to enter the number of hours he worked each of the seven days in the week. Plaintiff was also required to sign the sheets, which contained the language "I HEREBY CERTIFY THAT THE ABOVE IS CORRECT." Plaintiff testified at his deposition that to the best of his knowledge, all the sheets were correct because he had to approve them. Plaintiff's Dep., p. 94. The sheets reflected the amount of overtime he worked. Plaintiff's Dep., p. 95. He also stated that he was unaware of any overtime worked that was not reflected on his time sheets. Plaintiff's Dep., p. 96.
Later in his deposition, plaintiff claimed that he worked an average of five hours per week returning phone calls at home which he did not put on his time sheets. He claimed that he didn't know that he could include the overtime he worked at home on his time sheets. Plaintiff's Dep., pp. 132-33. However, he acknowledged that he reported other overtime he worked on his time sheets, and that toward the end of 2004, employees were required to get prior approval for overtime work by submitting a form to one of the commissioners for signature. Plaintiff's Dep., pp. 108-09.
The evidence in this case is analogous to the facts before the court in Wood v. Mid-America Management Corp., 192 Fed.Appx. 378, 2006 WL 2188706 (6th Cir. Aug. 1, 2006). In Wood, the employee did not keep any records of the overtime he worked, and simply estimated the amount of overtime he worked. He reported some overtime, for which he was paid, but he also failed to report some of the overtime he worked. He also acknowledged that the tasks he performed after hours could have been done during the normal workday. The court noted that because the employee did report some overtime, the employer had no reason to suspect that he neglected to report other overtime hours. Id., 192 Fed.Appx. at 380-381. In affirming the dismissal of plaintiff's FLSA claim, the court stated:
At the end of the day, an employee must show that the employer knew or should have known that he was working overtime or, better yet, he should report the overtime hours himself. Either way, the employee bears some responsibility for the proper implementation of the FLSA's overtime provisions. An employer cannot satisfy an obligation that it has no reason to think exists. And an employee cannot undermine his employer's efforts to comply with the FLSA by consciously omitting overtime hours for which he knew he could be paid.Id. at 381.
Similarly, in Newton v. City of Henderson, 47 F.3d 746 (5th Cir. 1995), the employee was told by his supervisors that he had to obtain authorization prior to working overtime hours, but the employee ignored those procedures and never demanded payment for overtime he had already worked without prior authorization. The court concluded that the evidence was insufficient to support a finding that the employer should have known that the employee was working overtime. Id. at 749. The court further held that it was reasonable for the employer to rely on the time sheets submitted by the employee for payroll purposes where there was no evidence that the employer encouraged workers to falsely report their hours. Id. at 750. See also Brumbelow v. Quality Mills, Inc., 462 F.2d 1324, 1327 (5th Cir. 1972) (employee estopped from claiming that she had worked more hours than the hours she claimed on her time sheets where the employer did not know and had no reason to know that the information was inaccurate).
Even assuming that plaintiff did work overtime at home, there is uncontroverted evidence that any such overtime was contrary to his employer's instructions that he return phone calls the next day at the office, that he failed to obtain permission to work overtime, that he did not report the overtime for phone calls on his time sheets, which he certified were correct, and that he reported and sought prior authorization for other overtime work, thereby giving the defendants the impression that he was properly claiming any overtime he worked. The record fails to reveal the existence of a genuine issue of material fact as to whether the defendants knew or had reason to know that plaintiff was working overtime at home, or that they "suffered" or "permitted" such work. Defendants are entitled to summary judgment on this branch of plaintiff's claims.
C. Compensatory Time in Lieu of Cash Payments
Plaintiff argues that he should have received cash payments for overtime work, not compensatory pay. The FLSA provides that employees of a public agency, including a political subdivision of a state, may be given compensatory time off at a rate not less than one and one-half hours for each hour of overtime worked in lieu of cash overtime compensation. 29 U.S.C. § 207(o)(1); Aiken v. City of Memphis, Tenn., 190 F.3d 753, 756 (6th Cir. 1999) (FLSA permits public agencies to provide compensatory time in lieu of overtime). The purpose of § 207(o) was to address the financial hardships that the FLSA imposed upon states and their political subdivisions. Beck v. City of Cleveland, Ohio, 390 F.3d 912, 917 (6th Cir. 2004). Compensatory time may be substituted, in the case of an employee not covered by a collective bargaining agreement, if "an agreement or understanding [is] arrived at between the employer and employee before the performance of the work[.]" 29 U.S.C. § 207(o)(2)(A)(ii). The Department of Labor regulations further provide:
[T]he agreement or understanding concerning compensatory time off must be between the public agency and the individual employee and must be reached prior to the performance of work. This agreement or understanding with individual employees need not be in writing[.] . . . An agreement or understanding may be evidenced by a notice to the employee that compensatory time off will be given in lieu of overtime pay. In such a case, an agreement or understanding would be presumed to exist for purposes of section 7(o) with respect to any employee who fails to express to the employer an unwillingness to accept compensatory time off in lieu of overtime pay. However, the employee's decision to accept compensatory time off in lieu of cash overtime payments must be made freely and without coercion or pressure.29 C.F.R. § 553.23(c)(1). Under Ohio Rev. Code § 4111.03(C), a county employee may elect to take compensatory time off in lieu of overtime pay, but under Ohio Rev. Code § 4111.03(D), a county appointing authority may adopt an alternative policy concerning the calculation and payment of overtime which would prevail over the requirements of § 4111.03(C).
The Morrow County Personnel Policy Manual, § 5.2(F), states: "Employees may elect and/or be required to take compensatory time in lieu of a cash payment, if approved by the Appointing Authority or designees." The Morrow County Board of Commissioners adopted a resolution on August 9, 1999, which provided that employees may be required to take compensatory time in lieu of cash payment for overtime worked. After the passage of that resolution, all persons employed by the Board of Commissioners were required to take compensatory time in lieu of cash payments.
Defendant Staley testified in his deposition that during plaintiff's interview for the zoning inspector position, plaintiff was informed that he would be given compensatory time instead of cash payments for overtime, and plaintiff accepted that condition. Staley Dep., pp. 9-10, 22, 24. Defendant Jackson confirmed in his deposition that during the interview, Staley informed plaintiff that he would be given compensatory time, not overtime pay. Jackson Dep., p. 23. Defendant McClintock also testified that when plaintiff was hired as a full-time zoning inspector, Staley made it clear that plaintiff would receive compensatory time instead of cash, and that plaintiff nodded and said, "That's fine." McClintock Dep., pp. 25-26.
Plaintiff now contends that he did not voluntarily accept compensatory time in lieu of cash payments. However, this claim is contradicted by his own deposition testimony concerning his actions at the time of his hiring. Plaintiff testified in his deposition that during the job interview, he and the commissioners discussed the fact that he would receive compensatory time, not cash. Plaintiff's Dep., p. 27. He recalled Don Staley stating that they didn't pay overtime, only compensatory time. Plaintiff's Dep., p. 28. Plaintiff let the commissioners know during the meeting that he would take the job with that condition. Plaintiff's Dep., p. 30.
Plaintiff's subsequent conduct also indicates his acceptance of compensatory time in lieu of cash payments. Plaintiff earned and used compensatory time to work at his farming and cattle-raising business. According to defendant Jackson, plaintiff never complained to the commissioners about the requirement that he take compensatory time instead of cash payments for overtime worked, and plaintiff accepted his paychecks without complaint. Jackson Aff., ¶¶ 17-18. See Auten v. Brooks, No. 2:05-cv-40, 2006 WL 2090095 (S.D.Ohio July 25, 2006) (finding sufficient evidence of agreement where plaintiffs did not refuse paychecks or express an unwillingness to accept compensatory time, but instead indicated a willingness to accept compensatory time by accepting paychecks and continuing to work overtime hours).
Plaintiff argues that he did not have a full understanding of the FLSA when he accepted the position. However, the record suggests that plaintiff was not unsophisticated in matters of overtime compensation. He was employed by Whirlpool for thirty-six years and also ran his own construction business with four employees. In any event, he cites no authority for the proposition that an employee is required to have full legal knowledge of the provisions of the FLSA prior to entering into an agreement to accept compensatory time instead of cash payments. It is sufficient under the statute if the employee has knowledge before the work is performed that he will be receiving compensatory time instead of a cash payment for overtime work, and agrees to accept compensatory time in lieu of cash.
The evidence establishes that plaintiff was informed prior to performing any work that the commissioners would only give compensatory time as compensation for overtime, and that he would not be receiving cash payments. The FLSA and Ohio law authorize the commissioners to give compensatory time in lieu of overtime payments to new employees who agree to accept compensatory time. There is no requirement in the statute or the regulations that the public agency also offer a job applicant the option of receiving cash payments. The fact that a job applicant might prefer to receive cash payments from a government employer if that option were available, in itself, is not sufficient to render involuntary the applicant's agreement to accept a position which offers only compensatory time. If plaintiff did not like the fact that the position he was offered gave compensatory time instead of cash for overtime work, he was free to decline the position. Instead, he stated that he was willing to receive compensatory time and accepted the job offer.
The evidence presented concerning plaintiff's actions and statements at the time of his hiring is sufficient to show the existence of a knowing and voluntary agreement to accept compensatory time within the meaning of § 207(o)(2)(A)(ii). Plaintiff's bare allegation, made years later, that he did not voluntarily accept compensatory time and that he would have preferred to receive cash payments, is insufficient to raise a genuine issue of material fact concerning the existence of an agreement.
In light of this court's determination that the defendants are entitled to summary judgment on plaintiff's claims for overtime compensation, this court need not address defendants' argument that plaintiff would not be entitled to liquidated damages under 29 U.S.C. § 216(b).
D. Failure to Keep Records
Plaintiff also claims that the defendants failed to keep overtime records in violation of the FLSA and the MFWSA. An employer is required under 29 U.S.C. § 211(c) to make and preserve records of employee wages and hours worked, and of other conditions and practices of employment maintained by the employer. Ohio Rev. Code § 4111.08 also requires the employer to maintain records concerning the hours worked by each employee and the rate and amount of pay for each pay period.
However, the authority to enforce the record-keeping requirements under the FLSA is vested exclusively in the Secretary of Labor under 29 U.S.C. § 217. The FLSA does not authorize employee suits for violations of those requirements.Elwell v. University Hospitals Home Care Servs., 276 F.3d 832, 843 (6th Cir. 2002). Similarly, the authority to investigate whether records are properly kept is given to the Director of Commerce under Ohio Rev. Code § 4111.04. Although civil fines and criminal penalties may be imposed as a result of a violation, see White v. Sears, Roebuck Co., 163 Ohio App.3d 416, 425, 837 N.E.2d 1275 (2005), Ohio law does not provide for a civil cause of action for failure to maintain or falsification of records.See DeMell v. Cleveland Clinic Foundation, No. 88508 (8th Dist.), 2007 WL 1705094 at *2-3 (Ohio App. June 14, 2007).
Thus, insofar as plaintiff seeks to assert a separate claim for failure to maintain records, such a claim is not available. In addition, the record includes evidence which shows that the Morrow County Auditor's Office does maintain records of hours worked by employees and compensatory time balances. During his deposition, plaintiff was unable to identify any employment records that he was unable to locate. There is no evidence to support plaintiff's claims that the defendants failed in their record-keeping responsibilities.
Plaintiff complains that the defendants kept no records of when he worked through lunch. However, a separate record of working through lunch was unnecessary, since plaintiff was paid for his lunch period regardless of whether he ate lunch or worked through lunch. The half-hour lunch period was included in and reported as a part of the standard eight-hour work day on plaintiff's time sheets and counted toward the forty-hour work week for purposes of calculating overtime regardless of whether the employee ate lunch or worked through lunch. Plaintiff would not be entitled to any extra compensation or compensatory time for working through lunch because he was always paid for his lunch period.
To the extent that plaintiff complains that defendants have no record of the time he allegedly spent answering phone calls at home, the defendants cannot be expected to keep a record of work time of which they were unaware, and of which they had no reason to be aware. As the court stated in Wood, 192 Fed.Appx. at 381, the employee "bears some responsibility for the proper implementation of the FLSA's overtime provisions" and "should report the overtime hours himself."
Defendants are entitled to summary judgment on plaintiff's record-keeping claims.
E. Individual Liability of Commissioners
The defendant commissioners also argue that they are not subject to liability in their individual capacities. Under the FLSA, the term "`Employer' includes any person acting directly or indirectly in the interest of an employer in relation to an employee and includes a public agency[.]" 29 U.S.C. § 203(d). The term "employer" in the MFWSA is defined as "the state of Ohio, its instrumentalities, and its political subdivisions and their instrumentalities, any individual, partnership, association, corporation, business trust, or any person or group of persons, acting in the interest of an employer in relation to an employee[.]"
The Sixth Circuit "has never extended individual liability to public employees under the FLSA." Mitchell v. Chapman, 343 F.3d 811, 832 (6th Cir. 2003) (holding that public employees cannot be individually liable under the Family Medical Leave Act ("FMLA")). In Mitchell, the court noted that Congress merely engrafted "Public Agency" into the FLSA by adding to an existing definition for private employers, thereby creating an ambiguous situation concerning the liability of public agency employees. Id. at 832. In enacting the FMLA, the term "public agency" was included in the definition of "employer" in a separate subsection. The fact that Congress indicated an intent not to hold individual public agency officials liable under a similar definition in the FMLA suggests that Congress likewise never intended to impose individual liability on public employees under the FLSA. However, even assuming arguendo that public officers may be held individually liable under the FLSA and the MFWSA, grounds for imposing individual liability have not been shown in this case.
As noted above, there is no evidence that the defendant commissioners knew or had reason to know that plaintiff was working overtime hours at home which he did not report. Further, the individual commissioners did not exercise the type of control over plaintiff's employment which is typical of persons found to be acting "in the interest of an employer." In the case of private employers, the Sixth Circuit has used the "economic reality" test, which imposes individual liability on a corporate officer with operational control of a corporation's covered enterprise.See Fegley v. Higgins, 19 F.3d 1126, 1131 (6th Cir. 1994). The court looks to such factors as whether the officer had a significant ownership interest in the corporation, controlled significant day-to-day functions, determined salaries, or made hiring decisions. See Dole v. Elliott Travel Tours, Inc., 942 F.2d 962, 966 (6th Cir. 1991).
Here, the evidence shows that while plaintiff technically reported directly to the commissioners, he worked largely unsupervised, and the commissioners only accompanied him on zoning calls occasionally. More significantly, it is not the individual commissioners who had the authority to hire plaintiff, set his salary, or dictate policy regarding overtime or other terms of his employment or his job functions. Rather, the commissioners can only act collectively as the Morrow County Board of Commissioners. See State ex rel. Salyers v. Scioto County Board of Commissioners, No. 03CA2914 (4th Dist.), 2004 WL 1118715 at *4 (Ohio App. May 12, 2004) (county board of commissioners can only exercise powers by means of orders, ordinances, or resolutions; layoff notice sent to employee by chairman of the board of commissioners was ineffective unilateral action undertaken by individual board member). An affirmative vote by a majority of the board is necessary before action can be undertaken. Id. (citing State ex rel. Cline v. Wilkesville Twp., 20 Ohio St. 288, 293-94 (1870)). An individual member cannot bind the board by his acts. Id. (citing Brophy v. Landman, 28 Ohio St. 542, 545 (1876)). Thus, the Morrow County Board of Commissioners is the only proper defendant in regard to plaintiff's overtime claims.
The defendant commissioners also argue that they are entitled to immunity under Ohio Rev. Code § 9.86. The applicable provision is Ohio Rev. Code § 2744.03(A)(6), which provides for immunity for employees of a political subdivision such as Morrow County. In light of this court's determination that the circumstances of this case do not justify the imposition of liability under the FLSA or the WMFSA on the defendant commissioners individually, the court need not address the issue of statutory immunity.
IV. Conclusion
Defendants' motion (Doc. #53) to strike portions of plaintiff's affidavit and defendants' motion to strike the affidavit of Linda Millington (Doc. #58) are granted. Plaintiff's cross-motion for partial summary judgment (Doc. #48) is denied. Defendants' motion for summary judgment (Doc. #37) on plaintiff's claims in Counts III and IV of the amended complaint is granted. In accordance with this order and the orders of January 16, 2007, and May 1, 2007, previously entered, this case is dismissed.