Opinion
19 CV 1441
12-13-2022
Rosemarie C. Wiseman Plaintiff v. Santiva, Inc., d/b/a “Better Taste” Et al. Defendants
PLAINTIFF'S MOTION FOR ENTRY OF JUDGMENT AND FULL RELIEF AGAINST DEFENDANTS RAYMOND SCOTT HENNING, SANTIVA INTERNATIONAL, POP BOX U.S. AND SANTIVA INC., D/B/A BETTER TASTE
The Honorable: Susan E. Cox, Judge
NOW COME the Plaintiff, Rosemarie C. Wiseman, (“Plaintiff”), by and through her undersigned counsel of record, John C. Ireland, Motions this Honorable Court for entry of Judgement and full relief on her claims, including damages determination, liquidated damages, statutory penalties, prejudgment interest and costs, and in support of this motion states as follows:
INTRODUCTION
On November 17, 2022 the Jury in this case entered a verdict in favor of the Plaintiff Rosemarie Wiseman on Plaintiff's two claims: 1) on Plaintiff's FLSA overtime claim 2) on Plaintiff's IWPCA vacation pay claim. The Jury also found that the Defendants acted willfully, extending the damages period from two years to three years from filing of this action. This court had previously found that Defendant Henning was an Employer under the FLSA and IWPCA, thus the Jury's verdict was against all Defendants.
Plaintiff now motions this Honorable Court to enter Judgment for the Plaintiff Rosemarie Wiseman and in doing so award Plaintiff the full amount of her damages as determined by the Jury, as well as liquidated damages, IWPCA statutory penalties, prejudgment interest and costs.
PLAINTIFF SEEKS ENTRY OF A JUDGEMENT ORDER IN A SPECIFIC AMOUNT PURSUANT TO THE FLSA
While the Jury entered a finding of liability, the Jury also determined the amount of overtime hours worked by Plaintiff, but not paid. (See Verdict Form; attached to this Motion as Plaintiff's Exhibit 1). The Jury's verdict found that from February 28, 2016 to March 30, 2017 Plaintiff Rosemarie Wiseman was not paid for 450 hours of overtime and that from March 31, 2017 to January 12, 2018 Plaintiff was not paid for 200 hours of overtime. (Ex. 1). Further the parties stipulated to the following overtime rates of pay for Plaintiff: from February 28, 2016 to March 30, 2017 Plaintiff's overtime rate of pay was $30.00 per hour and for the remaining work time her rate of pay was $33.00 per hour. (See Stipulation of rates of pay; memorialized in Jury Instructions ¶ 18).
Thus Plaintiff asks the court to enter a Judgement Order, consistent with that Jury Finding, in the following specific amounts of owed wages:
March 31, 2017 to January 12, 2018 = 450 X $30 = $13,500.00
March 31, 2017 to January 12, 2018 = 200 X $33 = $6,600.00 Total $20,100.00
Thus Plaintiff asks this court to enter Judgement for the Plaintiff in the amount of $20,100.00 in FLSA damages against Defendants Raymond Scott Henning, SANTIVA INTERNATIONAL, POP BOX U.S. AND SANTIVA INC., D/B/A BETTER TASTE.
PLAINTIFF SEEKS ENTRY OF A JUDGEMENT ORDER IN A SPECIFIC AMOUNT PURSUANT TO THE IWPCA
The Jury in this cause also found, via the proper completion of the Jury verdict form, the number of hours for vacation days owed to Plaintiff, but not paid, pursuant to the IWPCA. (See Ex 1 Pg. 4). In that verdict the Jury found that Defendants liable for 24 hours of unpaid vacation pay. Further the parties stipulated to a rate of pay for March 31, 2017 to January 12, 2018: $22.00 per hour.
Thus Plaintiff asks the court to enter a Judgement Order in the following amount:
24 vacation hours X $22.00 per hour = $528.00
Thus Plaintiff asks this court to enter a Judgement Order for the Plaintiff in the amount of $528.00 in IWPCA damages against Defendants Raymond Scott Henning, SANTIVA INTERNATIONAL, POP BOX U.S. AND SANTIVA INC., D/B/A BETTER TASTE.
PLAINTIFF ALSO SEEKS LIQUIDATED DAMAGES PURSUANT TO THE FLSA
Plaintiff also seeks liquidated damages under the FLSA. Under the FLSA, liquidated damages are mandatory unless the district court finds that the defendant-employer was acting in good faith and reasonably believed that its conduct was consistent with the law. 29 U.S.C. § 260; Shea v. Galaxie., 152 F.3d 729, 733 (7th Cir. 1998). Here the evidence presented by Defendants in the trial failed to prove either good faith nor reasonable conduct, thus an Order for liquated damages is proper.
Under FLSA an employer may avoid liquidated damages only if it proves that the discriminatory actions were taken in good faith, and that it had reasonable grounds for believing that the actions did not violate the FLSA. Id. (FLSA). Further “good faith defense” is narrowly construed, Castro v. Chicago Housing Authority, 360 F.3d 721, 730 (7th Cir. 2004), and places upon an employer a “substantial burden in showing that it acted reasonably and in good faith.” Bankston v. Illinois, 60 F.3d 1249, 1254 (7th Cir. 1995).
Defendants cannot meet these substantial burdens of proof for two key reasons: (1) the jury's findings that they acted willfully precludes a finding of good faith; and (2) at trial, Defendants failed to prove good faith nor reasonableness in Defendants actions. As such, liquidated damages should be awarded.
The Jury's Findings Of Willfulness Precludes Findings Of Good Faith
At trial, the jury was required to determine if Defendants' violations of the FLSA were willful because if Defendants' conduct were not willful, certain aspects of Plaintiff's claims would have been barred by the statute of limitations. (See Ex. 1). More specifically, for the FLSA claim, the Court explained that some of Plaintiff's overtime claims would be time-barred unless the then violations were willful, thereby extending statute of limitations from two to three years.
Accordingly, the Court instructed the jury that willfulness was an essential element of Plaintiff's cause of action and held that with this instruction, a general verdict could be returned on those claims without a need for a separate special interrogatory on willfulness. (See Ex. 1)(see also jury instructions ¶ 24) . Ultimately the jury found in Plaintiff's favor on her FLSA claims and entered a specific finding that the violations were willful. (Ex. 1; Pg. 1)
With the jury findings of willfulness on the FLSA overtime claim, Plaintiff respectfully submits that the Court is precluded from finding that Defendants acted in good faith when it decides the liquidated damages question. See, e.g. Alvarez Perez v. Sanford-Orlando Kennel Club, Inc., 515 F.3d 1150, 1166 (11th Cir. 2008) (holding that where jury makes a finding of willfulness for purposes of deciding the applicable statutes of limitations, the court cannot later find the employer acted in good faith in deciding liquidated damages).
Locally, in this District Court, Judge Manish Shah found the same preclusive effect of willfulness and good faith in Sheils v. GateHOUSE MEDIA, INC., Case No. 12 CV 2766. (NID (Shah) April 29, 2015) (Judge Shah's Order Attached as Plaintiff's Exhibit 4; for the ready reference of this court). In this finding Judge Shah found:
Here, the jury's findings of willfulness preclude a finding of good faith and on this basis alone, Plaintiff should be awarded liquidated damages. (Ex. 3 Pgs. 5-6).
Thus while not tested by the 7th Circuit at this time, Judge Shah's ruling is substantial support for this court to find that Defendants are preclude from a finding of good faith.
Defendants Cannot Establish That They Acted In Good Faith
Even if liquidated damages were not mandated by the findings of willfulness, Defendants cannot meet the substantial burden necessary to show their violations were in good faith and reasonable based on the evidence presented at trial, as supported by the following evidence:
• Defendant Henning testimony demonstrated his abject failure to maintain accurate records by ignoring his duty to inquire and/or understand the records that his company was creating. This was shown by his alleged ignorance of the time sheet entries for the work from home (See attached transcripts of Defendants testimony attached as Exhibit 2 and 3; Pg.24 Lns. 5-17; Pg. 26 Lns. 2-13). As a blatant example of Defendants claims and attempts at willful blindness, Mr. Henning ignored the entry for “plus three hours” and claimed that he had no idea what that time sheet entry meant. (Pg. 27 Lns. 12-14; Lns. 22-23; Pg. 83 Lns. 7-9). Further the +3 was based on the full six hours found on the top of the sheet, again no inquiry made by Defendants to understand, or create accurate records. (Pg. 28 Lns.1-17).
• Mr. Henning understood that Plaintiff was working from home, yet made no inquiry if Plaintiff was paid fully. (Pg. 29 Lns. 7-25). Rather than inquire, as a reasonable employer would, even at trial on this matter, he sought to blame the victim. (Pg. 29 Ln. 25).
• Mr. Henning also completely failed to pay the amount specifically communicated by Plaintiff: Plaintiff stated in a text a report of “86.5” hours (Pg. 31 Lns. 12-25) and Defendants paid 86.0 hours. (Pg. 32 Lns. 2-5). Defendants' failed to pay the amount reported, while pleading to the Jury, “we paid all hours”, this is neither reasonable nor in good faith. Defendants also had the temerity to claim “if there is an error, I correct it”, (Pg. 33 Lns. 3-5),
• Defendant also repeatedly blamed his alleged lack of access to the Excel time sheets, (Pg. 34 Lns. 5-6) (which he testified he had access to, had he wanted to), but also agreed that during the litigation he did have free access, and did nothing about the blatant shortages. (Pg. 36 Lns. 20-25; Pg. 37 Lns. 1-13). Further when asked by his own counsel, he admitted knowing that the hours were on an Excel sheet, (Pg. 81 Lns. 23-24),
• Mr. Henning also claimed ignorance of Plaintiff working nights and weekends which was shown by email and text communications. (Pgs. 57-60). Such claims of ignorance are highly suspect, as shown by his impeachment on several issues, such as claims that he “paid all reported hours” was shown as untrue. This uncredible claim of ignorance of homework, (from emails sent at 3:00 AM on a weekend) is further shown to be false as Mr. Henning claimed repeatedly to have an alleged “no overtime/ no home work” policy, yet not once did he seek to enforce that policy in response to clear work from home. (Pgs. 61-62). Further, when Defendant counsel asked about his claim of ignoring the time and date of the emails, Defendants testified that he only looked at the “substance” of the emails (Pg. 101 Ln. 4) yet when Plaintiff emailed on a Saturday morning at 1000 AM and complained in the “substance” of the email that she had worked from 100 AM to 1004 AM, nine hours and had added 400 listing working hours and hours at home, Defendants again did nothing but sit back and enjoy the free work done by Plaintiff. (Pg. 130-131)
• Defendant Henning also claimed repeatedly that he always “paid the hours on the time sheet” or “paid all overtime reported”, (Pg. 9 Lns. 16-17; Pg. 13 Ln. 12), this was demonstrated as simply untrue, as shown by the blatant failure to pay the hours on the time sheets. (Pg. 16 Lns 10-11).
• Mr. Henning also failed to even agree to what any reasonable person would see and understand. In regards to the clear payment of some of Cary Wiseman's owed wages, he claimed his hand written notes, on his own business records, were doodles or “notes all over the place”, but not payments to Cary, as clearly shown on the records. (Pg. p Lns. 16). This additionally was an indication of his lack of proper record keeping, as he could not name what the extra 19 hours of wages were paid for other than a vague claim of an “error”. (Pgs. 5-9)
• Defendants attempts at blame were placed on some unnamed “error” was also used to seek excuse from the underpayment of 85 hours on 91.5 hours reported. (Pg. 17 Lns. 2-4; Pg. 124 Lns. 1-3). The same error was not corrected, at any time during Plaintiff's employment, during the IDOL case, nor any time in this litigation. (Pgs. 20 and 22) and this despite four years of litigation and review of the time sheets. (Pg. 20 Ln. 20) despite doing all the accounting, Defendants had no clue the amount owed. (Pg. 21 Lns. 1-5). Mr. Henning simply did not bother, after four years of litigation to add the numbers up to verify if he paid all the wages correctly. (Pg. 21 Lns. 1-5).
• Mr. Henning also blamed no one because he “Don't know whose fault it is” (Pg. 38 Lns. 23-24) or maybe it's the fault of the payroll company: “That's what I pay them for”. (Pg. 40 Lns 7-9; Pg. 124 Lns. 8-9). This blame game was in response to Defendants blatant failure to pay overtime hours at an overtime rate of pay, (Pg. 40 Lns. 10-19; Pg. 41 Lns. 8-10; Pg. 44 Lns. 13-16; Pgs. 47-48). When asked when these hours of half time were repaid, (after four years of litigation) Defendants testified he “Don't recall”. (Pg. 41 Lns.12-14) and “I have no recollection one way or the other”. (Pg. 44 Lns. 18-20) and I “Have no recollection” (Pg. 48 Ln. 9).
• Further Mr. Henning is not some ‘babe in the woods', he began his first company at 25 years of age. (Pg. 68 Ln. 19)
• While Defendants' counsel finally got Mr. Henning to admit some mistakes (Pg. 79 Lns. 8-11) but after finally admitting mistakes he could not accept any responsibility, rather his only unmoving excuse is to again seek to blame the victim (Plaintiff) for not making a demand for the unpaid wages. (Pg. 79 Lns. 23-25).
• When asked about the blatant failure to pay (or even inquire) about the 3+ hours, (Pg. 83 Lns. 7-9), again Defendant sought to bolster the defense of “blame the victim” (Pg. 83 Lns. 10-14).
• Mr. Hennings also admitted that Plaintiff asked for half of her hours worked from home (Pg. 80 Lns. 5-12), yet his odd response was Plaintiff was to submit all her hours. (Id.).
• This blame-game strategy was further supported by Defendants claim that Plaintiff could easily ask for help or assistance, “.. .the cinnamon should be on the first shelf' (Pg. 90 Ln. 6), and that “just turn and talk to her” (Pg. 99 Lns. 9-12)
• Defendants blame-game also was cloaked in testimony about “trust” of the Plaintiff's time keeping (Pg. 98). This type of blame again is not consistent with the duty of the employer to do its job, making sure records are correct and payments made in full.
• Defendants also attempted to mitigate the paying two employees on one check, by claiming it only occurred for about two months, (Pg. 101 Lns. 14-20), yet again Defendants were tripped up by the truth, as the actual time that the payrolls were combined was actually from February to October 13. (Pg. 126-129).
All the above are Defendants admissions, actions and inactions that show Defendants utter lack of reasonableness in action and/or lack of good faith in fulfillment of Defendants' FLSA duties.
The good faith defense cannot be established merely by professed ignorance of the FLSA, and requires that the employer met a duty to at least investigate potential liability. Barcellona v. Tiffany English Pub, Inc., 597 F.2d 464, 468-69 (5th Cir. 1979). While not directly citing ignorance, Defendants seek shelter from liquidated damages by claiming to be a small company or too busy to bother or by blaming the Plaintiff for their FLSA violations. But Barcellona does not allow for an employer to prove good faith on those bases, rather Defendants are required to “at least investigate” if their actions were legal under the FLSA. Defendants did not conduct any such investigation ever, including after the IDOL was filed and after the federal case was filed and even as the case was tried before this court. Defendants did not present an accounting, did not present any mitigation efforts, nor any demonstration that they paid wages properly.
Further Defendants professed that they thought they complied is not sufficient. This belief is not sufficient since knowledge of the Act and its obligations is imputed. See Reeves v. International Telephone & Telegraph Corp. (5th Cir.1980), 616 F.2d 1342, 1353, cert. denied (1981), 449 U.S. 1077, 66 L.Ed.2d 800, 101 S.Ct. 857.
Defendants' abject failures to keep proper records, such as allowing “unknown” time entries to be undocumented, further disprove the good faith defense. In Dunlop v. Gray-Goto,Inc. (10th Cir.1976), 528 F.2d 792, 796, the court indicated that the employer cannot rely on a good-faith defense when it fails to meet the record-keeping requirements of the Act. (See also Hodgson v. Elm Hill Meats of Kentucky, Inc. (E.D. Ky. 1971), 327 F.Supp. 1009, 1014, aff'd (6th Cir.1972), 463 F.2d 1186; Walling v. Stone (7th Cir.1942), 131 F.2d 461, 463.). Here the Defendant professed that the records included “doodles” and random notes that were unknown, despite being authored by Defendants themselves.
Defendants attempts to blame the Plaintiff for their FLSA errors does not excuse the Defendants nor prove good faith. As the Fifth Circuit found in LeCompte v. Chrysler CreditCorp., 780 F.2d 1260, 1263 (5th Cir. 1986), "an employer cannot satisfy its dual burden under § 260 solely by suggesting that lower-level employees are responsible for the violations..” thus Defendants repeated finger pointing is not proof of good faith, rather is the opposite.
In LeCompte the court also found that claiming ignorance was not proof of good faith finding “From such incidents, Heacock knew, or in the exercise of reasonable diligence should have known, that considerable overtime work was being required of accounts adjusters.” (at 1263). Mr. Henning likewise could easily have found (if the court believes the claims of ignorance) that Plaintiff was working the 650 hours awarded by the Jury; simply by looking at his own emails, text messages, and Plaintiff's work product of 400+ listing.
“To prove that it acted in good faith, an employer ‘must show that [it] took affirmative steps to ascertain the Act's requirements, but nonetheless violated its provisions “Martin v. Indiana Michigan Power Co., 381 F.3d 574, 584 (6th Cir. 2004). Here Mr. Henning presented zero evidence of efforts to understand the FLSA.
Plaintiff also notes that this defense has a burden of proof that required Defendants, not Plaintiffs to prove this defense. “However, it is not Plaintiffs' responsibility to prove bad faith. Rather, it is Defendants' responsibility to prove good faith” Jordan v. IBP, Inc., 542 F.Supp.2d 790, 815-16 (M.D. Tenn. 2008). Because Defendants bear the burden, Defendants must demonstrate they took affirmative steps to comply with the FLSA, here Mr. Henning presented nothing to show any efforts; much less “affirmative steps”.
"To establish the requisite subjective 'good faith,' an employer must show that it took active steps to ascertain the dictates of the FLSA and then act[ed] to comply with them." Barfield v. New York City Health & Hosps. Corp., 537 F.3d 132, 150 (2d Cir. 2008) (internal quotation marks and citation omitted). See also Addison v. Huron Stevedoring Corp., 204 F.2d 88, 93 (2d Cir. 1953) ("The 'good faith' of the statute requires, we think, only an honest intention to ascertain what the [FLSA] requires and to act in accordance with it."); Beebe v. United States, 640 F.2d 1283, 1295 (Ct. Cl. 1981). Here Mr. Henning took no steps, no actions, no efforts to understand his duties under the FLSA.
Accordingly, Plaintiff respectfully requests entry of judgment in the amount of $20,100.00 for the unpaid overtime and an additional $20,100.00 as liquidated damages.
PLAINTIFF SEEKS IWPCA PENALTIES
Plaintiff also seeks an entry of a Judgement pursuant to IWPCA in the amount of $528.00 (See Ex. 1 and see argument/calculations above). The IWPCA has mandated 2% interest per month on underpayments, which was increased to 5% per month until paid (820 ILCS 115/14).
Thus Plaintiff calculates the IPWCA penalties periods as follows
February 2018 to July 2021 = 41 months (3 years + 5 months = 41 months) August 2021 to December 2022 = 16 months (1 year + 4 months = 16 months) Thus the respective IWPCA penalties are calculated as follows:
$528.00 X 2% = $10.56 per month X 41 months = $432.96
$528.00 X 5% = $26.40 per month X 16 months = $422.40 Total $855.36
Thus Plaintiff asks this court to enter a Judgement Order for the Plaintiff in the amount of $855.36 in IWPCA penalties/damages against Defendants Raymond Scott Henning, SANTIVA INTERNATIONAL, POP BOX U.S. AND SANTIVA INC., D/B/A BETTER TASTE.
PLAINTIFF SEEKS PREJUDGMENT INTEREST
More than four years have passed since Plaintiff's overtime hours were unpaid. Her equitable damages award should include an award of pre-judgment interest. In Lomas v. Kold-Lena Cheese 720 F.Supp. 110 (NID 1989) the court awarded pre-judgement interest “The court believes prejudgment interest is appropriate in this case. Such an award serves to compensate Plaintiff for the delay in receiving his overtime and Sunday wages during the relevant time period.” Likewise here Plaintiff asks for prejudgment interest from January of 2018 to present. $20,100.00 X 5% = $1005.00 X 4.5 years = $4,522.50
Costs
In addition to the damages set forth above, Plaintiff seeks costs for prevailing on her overtime and vacation claims. Plaintiff also seeks costs for prevailing on her overtime and vacation claims. The FLSA directs courts to award reasonable costs to prevailing parties.
Conclusion
Based on the foregoing, Plaintiff respectfully requests this Court enter judgment in Plaintiff's favor and award Plaintiff the following relief consistent with the jury's verdict and case law: unpaid overtime compensation in the amount of $20,100.00; prejudgment interest in the amount of $4,522.50; liquidated damages in the amount of $20,100.00; IWPCA Judgment $528.00, IWPCA penalties in the amount of 855.36. Plaintiff also respectfully requests leave to file a bill of costs.
Respectfully submitted
The Law Office of John C. Ireland
636 Spruce Street South Elgin ILL 60177
630-464-9675 Fax 630-206-0889 attomeyireland@gmail.com
Dated: 12/12/22
Jury Trial Demanded
PLAINTIFF'S MOTION FOR ENTRY OF JUDGMENT AND FULL RELIEF AGAINST DEFENDANTS RAYMOND SCOTT HENNING, SANTIVA INTERNATIONAL, POP BOX U.S. AND SANTIVA INC., D/B/A BETTER TASTE
Plaintiff's Exhibit 4
DARLENE SHEILS, Plaintiff, v.
GATEHOUSE MEDIA, INC., GATEHOUSE MEDIA SUBURBAN NEWSPAPERS, INC., and SHAW SUBURBAN MEDIA GROUP, INC., Defendants.
Case No. 12 CV 2766.
United States District Court, N.D. Illinois, Eastern Division.
April 29, 2015.
PLAINTIFF'S MOTION FOR ENTRY OF JUDGMENT AND FULL RELIEF
MANISH S. SHAH, Judge.
Plaintiff, Darlene Sheils, by her attorneys, Pedersen & Weinstein LLP, respectfully submits this motion for entry of judgment and asks that she be awarded full relief on her claims, including back pay, prejudgment interest, liquidated damages, statutory penalties, reinstatement or front pay, award for adverse tax consequences, emotional distress damages, punitive damages, attorneys' fees and costs.
I. Introduction
On March 27, 2015, a jury returned a verdict on liability in Plaintiff's favor on the following four (4) claims: (a) Plaintiff's claim of FMLA retaliation with respect to her demotion (Claim 2); (b) Plaintiff's claim of FMLA retaliation with respect to her discharge (Claim 3); (c) Plaintiff's claim for unpaid overtime (Claim 4); and (d) Plaintiff's claim of retaliatory discharge under Illinois law (Claim 5). The jury also found in Plaintiffs favor on the issue of joint employer liability, finding that Gate House Media, Inc. was a joint employer of Plaintiff with GateHouse Media Suburban Newspapers, Inc.
The jury found in favor of Defendants on one claim, Plaintiff's FMLA interference claim (Claim 1).
Following the liability phase of trial, the parties presented evidence on Plaintiff's damages and on March 30, 2015, the jury returned a verdict awarding Plaintiff the following:
Claim 2 - Back pay (FMLA demotion): $3,637
Claims 3 and 5 - Back pay (FMLA discharge, retaliatory discharge): $62,036.01
Claim 5 - Emotional distress damages: $60,000
Claim 5 - Punitive damages: $125,000
Additionally, the jury concluded that Defendants' violation of the Fair Labor Standards Act ("FLSA") was willful, and for 2010 found that Plaintiff worked 37.5 hours of overtime.
Plaintiff now moves the Court to enter judgment awarding Plaintiff the full amount of her back pay, emotional distress damages and punitive damages as determined by the jury, as well as prejudgment interest, liquidated damages under the FMLA and FLSA, the statutory penalty for unpaid wages under the Illinois Minimum Wage Law, an award for the adverse tax consequences on her back pay, plus attorneys' fees as determined by Federal Rule of Civil Procedure 54(d)(2) and Local Rule 54.3 and costs as determined by Federal Rule 54(d)(1) and Local Rule 54.1.
II. FMLA And Retaliatory Discharge Claims - Back Pay And Prejudgment Interest
Under the FMLA, Defendants are liable for damages equal to "(i) the amount of [] any wages, salary, employment benefits, or other compensation denied or lost ...; (ii) the interest on the amount described in clause (i) calculated at the prevailing rate; and (iii) an additional amount as liquidated damages equal to the sum of the amount described in clause (i) and the interest described in clause (ii) ..." 29 USCS § 2617(1)(A)(i)-(iii). Back pay is also a well-established remedy for a retaliatory discharge claim under Illinois law. See, e.g. Reinneck v. Taco Bell Corp., 297 Ill.App.3d 211 (Ill.App.Ct. 5th Dist. 1998)(awarding $370,000 back pay and future pay).
Back Pay. As this Court held in its March 11, 2015 Order, back pay under the FMLA is an issue to be decided by the jury. (Doc. 88)(citing Frizzell v. S.W. Motor Freight, 154 F.3d 641, 642-644 (6th Cir. 1998). Likewise, back pay is a jury issue under Illinois retaliatory discharge law. (Doc. 88)(citing Holland v. Schwan's Home Serv.,Inc., 2013 Il App (5th) 110560 ¶207 (5th Dist. 2012); Kritzen v. Flender Corp., 226 Ill.App.3d (2d Dist. 1992)). After finding in favor of Plaintiff on her FMLA retaliation and Illinois retaliatory discharge claims (Claims 2, 3 and 5), the jury awarded Plaintiff back pay in the total amount of $65,673.01 ($3,637 for the demotion in Claim 2 + $62,036.01 for the termination in Claims 3 and 5). Accordingly, Plaintiff should be awarded back pay in the amount of $65,673.01.
Prejudgment Interest. Pursuant to 29 USCS § 2617(1)(A)(ii), Plaintiff seeks interest on the back pay award, which is also presumed to be appropriate under the FMLA. See U.S. v. Bd. of Educ.of Consol. High Sch. Dist. 230, Palos Hills, Ill., 983 F.2d 790, 799 (7th Cir. 1993) (Prejudgment interest is "presumptively available" because "[w]ithout it, compensation is incomplete and the defendant has an incentive to delay.") Because prejudgment interest is an element of complete compensation, "compound prejudgment interest is the norm in federal litigation." Am. Nat'l FireIns. Co. v. Yellow Freight Sys. Inc., 325 F.3d 924, 937-38 (7th Cir. 2003); see also Gorenstein Enters., Inc. v. Quality Care U.S.A., Inc., 874 F.2d 431, 436 (7th Cir. 1989)(compound, rather than simple, interest is proper).
Further, back pay interest should be calculated by compounding monthly the prime rate set by the Federal Reserve during the month in which interest is sought. See Ryl-Kuchar v. Care Centers, Inc., 564 F.Supp.2d 817, 829 (N.D. Ill. 2008) affd, 565 F.3d 1027 (7th Cir. 2009) (basing calculations on the monthly prime rate set by the Federal Reserve during months for which plaintiff seeks interest was acceptable); see also Rasic v. City of Northlake, 2010 U.S. Dist. LEXIS 86815 at * 35 (N.D. Ill. Aug. 24, 2010)(Schenkier, Mag.)("we agree with plaintiff that the compounding should be done on a monthly, and not an annual, basis"). In Rasic, the court explained that where a claim is made for ongoing lost wages, prior to judgment, the amount of lost wages increases with every missed pay check. In that situation, the court held compounding interest on a monthly basis is a more accurate way to fully compensate a plaintiff for the time value of an increasing amount of lost wages. Id. at *36.
As the courts in Ryl-Kuchar and Rasic held, prejudgment interest in this case should be compounded monthly at the prevailing prime rate starting on February 17, 2011 (the day Defendants fired Plaintiff) and continuing through the date judgment is entered against Defendants. Because the Court has not yet entered judgment in this case, Plaintiff is submitting a spreadsheet detailing her calculation of prejudgment interest through April 17, 2015 (see Exhibit A, attached), which is $9,509.72. Plaintiff will supplement this calculation as appropriate once judgment is entered. Plaintiff also seeks post-judgment interest, for which Defendants are also liable following the entry of judgment, as provided by 28 U.S.C. § 1961. Alcazar-Anselmo v. City of Chicago, 2011 U.S. Dist. LEXIS 82291 at *15 (N.D. Ill. July 27, 2011). Post-judgment interest is calculated as described in the statute.
Plaintiff calculated prejudgment interest at the prevailing prime rate of 3.25%. See First Nat'l Bank of Chicago v. Standard Bank & Trust, 172 F.3d 472, 480 (7th Cir. 1999) ("Our practice has been to use the prime rate as the benchmark for prejudgment interest unless either there is a statutorily defined rate or the district court engages in 'refined rate-setting' directed at determining a more accurate market rate for interest."); www.federalreserve.gov/releases/h15 (prime rate from February 17, 2011 until the present is 3.25%).
III. FMLA And FLSA Claims - Liquidated Damages
Plaintiff seeks liquidated damages under the FMLA and FLSA. The liquidated damages provisions of the FMLA and FLSA are identical and courts treat the case law under the statutes interchangeably. Ulit v. Advocate S. Suburban Hosp., 2009 U.S. Dist. LEXIS 118587 at *3 fn 1 (N.D. Ill.Dec. 21, 2009)(Dow, J.). Accordingly, Plaintiff addresses liquidated damages under both statutes in this section.
A. Legal Standard
The FMLA provides that an employer who violates the FMLA shall be liable not only for lost wages and interest, but also for "liquidated damages equal to the sum of the amount" of lost wages plus interest. 29 U.S.C. § 2617(a)(1)(A)(iii)(emphasis added). Likewise, under the FLSA, liquidated damages are mandatory unless the district court finds that the defendant-employer was acting in good faith and reasonably believed that its conduct was consistent with the law. 29 U.S.C. § 260; Shea v. Galaxie Lumber & Constr. Co., 152 F.3d 729, 733 (7th Cir. 1998).
Under both statutes, an employer may avoid liquidated damages only if it proves that the discriminatory actions were taken in good faith, and that it had reasonable grounds for believing that the actions did not violate the FLSA or FMLA. Id. (FLSA); Ryl-Kuchar, 564 F.Supp.2d at 829 (FMLA). This "good faith defense" is narrowly construed, Castro v. Chicago Housing Authority, 360 F.3d 721, 730 (7th Cir. 2004), and places upon an employer a "substantial burden in showing that it acted reasonably and in good faith." Bankston v. Illinois, 60 F.3d 1249, 1254 (7th Cir. 1995). Defendants cannot meet this substantial burden for two key reasons: (1) the jury's findings that they acted willfully precludes a finding of good faith; and (2) at trial, Defendants failed to prove good faith. As such, liquidated damages should be awarded.
B. The Jury's Findings Of Willfulness Preclude Findings Of Good Faith
At trial, the jury was required to determine if Defendants' violations of the FMLA and FLSA were willful because if Defendants' conduct was not willful, certain aspects of Plaintiff's claims would have been barred by the statute of limitations. More specifically, for the FMLA claim, the Court explained in its March 11, 2015 Order that Plaintiff's claims based on her demotion would be time-barred unless the alleged violations were willful, thereby extending the statute of limitations from two to three years. Accordingly, the Court instructed the jury that willfulness was an essential element of Plaintiff's cause of action and held that with this instruction, a general verdict could be returned on those claims without a need for a separate special interrogatory on willfulness. See Jury Instructions, Doc. 100, p. 20; March 11, 2015 Order, Doc. 88, p. 1. Ultimately the jury found in Plaintiff's favor on her FMLA-Retaliation-Demotion claim, meaning the jury found that Defendants' violation of the FMLA was willful.
Similarly, with respect to Plaintiff's FLSA claim, the Court held that where willfulness affects the applicable statute of limitations as it did in this case, the inquiry is to be resolved by the jury. March 11, 2015 Order, Doc. 88, p. 2 (citing Bankston, 60 F.3d at 1253). Accordingly, during the damages portion of the trial, the jury was required to determine whether Defendants' violation of the FLSA was willful and the jury returned a verdict concluding that it was.
With jury findings of willfulness on both of these claims, Plaintiff respectfully submits that the Court is precluded from finding that Defendants acted in good faith when it decides the liquidated damages question. See, e.g. Alvarez Perez v. Sanford-Orlando Kennel Club, Inc., 515 F.3d 1150, 1166 (11th Cir. 2008) (holding that where jury makes a finding of willfulness for purposes of deciding the applicable statutes of limitations, the court cannot later find the employer acted in good faith in deciding liquidated damages). While Plaintiff was unable to find a Seventh Circuit case on this issue, the majority of circuits have reached the same conclusion as the Eleventh Circuit reached in Alvarez Perez. See Singer v. City of Waco, Tex., 324 F.3d 813, 823 (5th Cir. 2003) (affirming liquidated damages where jury found violation of the FLSA was willful, because defendant could not show it had acted in good faith); Chao v. A-One Med. Servs., Inc., 346 F.3d 908, 920 (9th Cir. 2003) (affirming liquidated damages under FLSA where there was a finding of willfulness, and noting that "a finding of good faith is plainly inconsistent with a finding of willfulness"); Herman v. PaloGroup Foster Home, Inc., 183 F.3d 468, 474 (6th Cir. 1999) (affirming liquidated damages for violations of the FLSA because "a finding of willfulness is dispositive of the liquidated-damages issue"); Pollis v. New Sch. for Soc. Research, 132 F.3d 115, 120 (2d Cir. 1997) (finding in an EPA case that employer acted willfully for purposes of the statute of limitations, "and the resulting compensatory award should be doubled pursuant to the Fair Labor Standards Act's liquidated damages provision" under 29 U.S.C. § 260); Brinkman v. Dep't of Corr., 21 F.3d 370, 372 (10th Cir. 1994) (determining that district court "properly awarded liquidated damages based upon the jury's finding of willfulness" because "when fact issues central to a claim are decided by a jury upon evidence that would justify its conclusion, the Seventh Amendment right to a jury trial prohibits the district court from reaching a contrary conclusion"). Here, the jury's findings of willfulness preclude a finding of good faith and on this basis alone, Plaintiff should be awarded liquidated damages.
C. Defendants Cannot Establish That They Acted In Good Faith
Even if liquidated damages were not mandated by the findings of willfulness, Defendants cannot meet the substantial burden necessary to show their violations were in good faith.
1. FMLA Claims
On Plaintiff's FMLA claims, Defendants cannot establish that they acted in good faith and reasonably believed that their conduct was consistent with the law. The evidence in this regard with respect to Plaintiff's demotion and pay cut (Claim 2) includes the following:
• Defendants knew that the FMLA provided job protection to employees on approved FMLA leave, yet they failed to return Plaintiff to her position or an equivalent position after her FMLA leaves in 2009 and 2010.
• The suspicious timing of the adverse actions against Plaintiff - more specifically, after years of performing well for Defendants, and on the heels of Plaintiff requesting and taking FMLA leaves, Defendants demoted her and cut her pay.
• Defendants attempted to justify demoting Plaintiff and cutting her pay from $48,000 per year to $20 per hour by claiming she was no longer a supervisor, but as she and Maggie Grover testified, and as the job descriptions for Plaintiff before and after the demotion showed, nothing about Plaintiff's job actually changed. She was doing the same job but for less pay.
• Defendants claimed at trial that everyone in Plaintiff's department had their hours cut from 40 hours per week to 37.5 to create the appearance that everyone was negatively impacted at the same time Plaintiff was demoted. Contrary to Defendants' claim, however, Sue Krish, who had never taken FMLA leave and who ultimately got one of the jobs for which Plaintiff applied, testified that her hours were not cut and she continued to work 40 hours per week.
• Even if other employees in Plaintiff's department had a slight reduction in their hours and pay, the evidence showed that Plaintiff's pay was cut twice as much as anyone else in the department (none of whom had taken FMLA leave) with no credible justification.
• Carol Gilbert, Plaintiff's direct supervisor and one of the decision makers on the demotion, made repeated negative comments to Plaintiff about taking FMLA leave before each leave preceding her demotion. Gilbert was worried about deadlines and questioned how all of the work would get done when Plaintiff was out for her surgeries.
• Similarly, Maggie Grover testified that in 2009 when Plaintiff needed surgery in the middle of a very busy time at the paper, Gilbert was annoyed that Plaintiff had to take time off, asked Plaintiff if she had to be gone so long and if she could come back earlier.
• On another occasion, Maggie Grover heard Gilbert question Plaintiff about a medical appointment saying, "Does it have to be now" and "can't you get another appointment?"
• Maggie Grover also testified that several other times she heard Gilbert question Plaintiff about her need to take time off at all and about the length of the leave.
• Additionally, Maggie Grover testified that Gilbert said she thought that Plaintiff was overblowing the pain and indicated that she did not think it was as bad as Plaintiff was making it out to be.
• Maggie Grover further testified that during a conversation about assigning work to other employees in Plaintiff's absence, Gilbert said that Plaintiff's FMLA leave "should not take that long" and appeared unhappy.
• After Plaintiff's surgeries and FMLA leaves, Gilbert began ignoring and distancing herself from Plaintiff. Gilbert told Plaintiff not to sit in her office anymore even when they discussed work, yet Plaintiff still saw other employees sitting and talking with Gilbert - the new "rule" about not sitting in Gilbert's office only applied to Plaintiff.
As for Plaintiff's termination, in addition to the evidence summarized above which includes Defendants' knowledge of the law, the repeated negative comments to and about Plaintiff taking FMLA leaves and the false explanations for demoting her and cutting her pay, Defendants cannot establish that they acted in good faith and reasonably believed that their conduct was consistent with the law in light of the following evidence:
• Defendants' Vice President of Human Resources testified that it would violate the FMLA to use an employee's FMLA leave as a negative factor in making an employment decision, yet Gilbert admitted that this was exactly what she did. Specifically, when Gilbert ranked Plaintiff's attendance, which was part of a chart that Defendants relied on heavily when deciding to fire Plaintiff, she took into consideration Plaintiff's FMLA time.
• Further, in unlawfully taking Plaintiff's FMLA leave into account, Gilbert ranked Plaintiff the lowest of any other employee in the department on attendance.
• Moreover, in looking at the total number of hours that employees took off before Gilbert did her rankings (specifically from Plaintiff's return from her second FMLA leave until the time Gilbert did her rankings), Plaintiff actually had fewer hours off than all but two other employees (1 of whom had the same number of hours off and 1 who appeared to have no time off at all, including holidays). However, Gilbert still rated Plaintiff a 2 (the lowest of any other employee in the department) and rated everyone else (including those with the same or more time off than Plaintiff) a 4 or 5.
• Gilbert's unlawful consideration of Plaintiff's FMLA leave adversely affected the other areas Gilbert ranked Plaintiff on for purposes of deciding who to retain following the department's reorganization. Despite Gilbert's equivocation and attempt at trial to distinguish "hypothetical criteria and rankings" from the actual criteria and rankings used to fire Plaintiff, Gilbert clearly testified at her deposition that attendance, in her view, would affect 6 additional criteria she ranked employees on, including Plaintiff.
• Had these 7 rankings, all of which Gilbert admitted were her own subjective opinions, not been affected by her unlawfully taking into account Plaintiff's FMLA leaves, Plaintiff would have scored as high as Sue Krish and Lynn Adamo who got the jobs instead of Plaintiff.
• Defendants argued that Gilbert considered a greater period of time than was reflected on the summary chart used at trial, but even if she went back further to some undefined time, it would not have changed anything because Gilbert admitted that she still would have taken into account Plaintiff's other FMLA leaves, which again, is illegal.
• Defendants claimed they hired the most qualified people following the reorganization (none of whom had taken FMLA leave), yet they gave one of the jobs Plaintiff applied for (that of senior production coordinator), a job that required attention to detail, to the candidate with an obvious typo on her resume and who wrote on her application that she needed training on 30% of the essential job functions for the position.
• Defendants claimed that Plaintiff did not get the other position she applied for (ad traffic coordinator) because there was only one such position and it went to Sue Krisch, yet at the same time Defendants ran an advertisement seeking candidates for the exact same job.
• Thereafter, within two months after telling Plaintiff that there were no ad traffic coordinator positions for her, Defendants hired two more people for the job, including an outside applicant. Within a year, Defendants hired 6 more ad traffic coordinators.
• Defendants repeatedly claimed at trial that all graphic design work (Plaintiff's work) was outsourced to India, that there was no graphic design work left here, and that no one working for Defendants built ads anymore. Yet, as recently as two weeks before trial, Defendants were recruiting for ad traffic coordinators/graphic artists with a job description stating, "the position also creates ads," and sought applicants with experience in graphic design.
• Caroll Stacklin (publisher and another decision-maker) and Gilbert both admit they knew Plaintiff wanted the job of ad traffic coordinator, yet when ad traffic coordinator jobs became available - even within a matter of a month or two of Plaintiff applying for it, neither contacted Plaintiff or hired her, despite her 17-year tenure with the company and the fact that Plaintiff had never withdrawn her application.
• In the midst of deciding who to hire and who to fire during the restructuring, Stacklin was making inquiries about Plaintiff's FMLA claim, corresponding with Hana Zach, who functioned as the local human resources representative, and Laura Williams, the Vice President of Human Resources.
• Defendants tried to explain Stacklin's email communications about Plaintiff's FMLA leave as "due diligence" it conducted with respect to the restructuring. However, this explanation was not credible and instead appeared to be a cover up for Defendants trying to fire an employee they viewed as a problem. The evidence that there was no true due diligence includes the following: Stacklin never mentioned "due diligence" in her deposition when asked about her email communications regarding Plaintiff; there was no documentation about how the termination decisions were made, something that typically would be included in any due diligence; Defendants conducted no interviews of applicants as part of the selection process; and Defendants had no notes of any conversations among the decision-makers or on how decisions were made. Instead, Defendants had only Gilbert's ranking chart - and if there had truly been any due diligence by human resources, upper management or counsel, Defendants would have looked at the chart and seen the obvious disparity in the attendance ranking Gilbert gave Plaintiff as compared to the ranking given to every other employee in the department - none of whom had ever taken FMLA leave.
• Gilbert changed her testimony on one of the key issues in this case - which was what she knew when she prepared the ranking chart (which as described above was unlawful) used by Defendants to fire Plaintiff. At trial, Gilbert claimed that her ranking chart was not part of the decision-making process to make it appear as though she ranked Plaintiff without knowing the reason she was asked to do so. Gilbert was impeached with her deposition testimony, in which she plainly testified, "[the chart] actually was the first thing that I was ever asked to do after I found out we were going to outsource." At trial, Gilbert admitted that she was changing her testimony. This was a critical issue because the chart - which was unlawful under the FMLA because Plaintiff was ranked poorly on account of her FMLA leaves - was the basis for firing Plaintiff. It is axiomatic that Defendants cannot prove good faith when one of the decisionmakers lied under oath about the very decision at issue.
• Other witnesses lacked credibility at trial. Stacklin, one of the other decision makers, testified about how dire the economic situation was at the company and the drastic measures that needed to be taken both with respect to Plaintiff's demotion and termination. Yet, Stacklin admitted under cross examination that for at least two straight years during this "financial crisis," she got a bonus of $40,000 per year in addition to her six figure salary.
• Similarly, Stacklin also testified how "ridiculously hard" it was to lay people off, yet when she could have rehired one of those very same employees (as proven by Defendants' continued efforts to recruit ad traffic coordinators), Stacklin did not reach out to Plaintiff, who she knew had just applied for the job, wanted the job, met all of the requirements of the job and had been a dedicated employee for seventeen years. Instead, Stacklin hired seven people from outside the company.
• After Plaintiff's superiors (Stacklin, Gilbert and Don Stamper) testified that Plaintiff was a good employee, who they liked working with, who was never disciplined, who was never written up, was dedicated to her job, who took pride in her work, who had good communication skills and who was never in jeopardy of losing her job over any performance issue, Defendants chose to call two current employees of another Defendant, Shaw Media, to testify that Plaintiff was a bad employee who no one wanted to work with, who yelled at people and made people cry. Defendants' attempt to muddy Plaintiff up in front of the jury knowing that they never claimed Plaintiff was demoted or fired for any of these reasons is further evidence that they did not act in good faith.
In sum, Defendants presented no credible evidence at trial to show they acted in good faith and reasonably believed that their conduct was consistent with the law. Instead, the evidence showed that Defendants knew their conduct was unlawful and simply tried to cover it up at the time Plaintiff was demoted and fired, and continued trying to cover it up at trial. As such, Plaintiff should be awarded liquidated damages in the amount of $75,182.73 ($65,673.01 back pay + 9,509.72 prejudgment interest).
2. FLSA Claim
With respect to the jury's verdict that Defendants violated the FLSA by failing to pay Plaintiff overtime wages, Defendants cannot establish that they had reasonable grounds for believing that their actions did not violate the FLSA, as supported by the following evidence:
• As Caroll Stacklin testified, all managers, including Plaintiff's direct manager, Carol Gilbert, were trained on the overtime requirements under the law. Yet, as the jury concluded, Plaintiff worked more than 40 hours a week in many weeks and was never paid overtime.
• Plaintiff testified there were many times that she worked off the clock - either by clocking out at the end of the day and going back to work or coming in early and clocking in later - and that Gilbert was aware of this because Plaintiff told Gilbert about the extra time worked.
• Gilbert yelled at Plaintiff for recording working more than 40 hours a week and required her to deduct time for lunches that Plaintiff never took.
• Gilbert repeatedly altered Plaintiff's time cards so that Plaintiff never was paid for more than 4 hours a week.
• Even Sue Krish, who handled the time cards when Gilbert was out, changed Plaintiff's time card to make it appear that Plaintiff had left work earlier than she actually had, which resulted in Plaintiff being paid exactly 40 hours and not for overtime she worked.
• For years into this litigation, Defendants denied that Plaintiff ever worked overtime without pay, yet when Gilbert was deposed, she admitted that she knew Plaintiff had worked overtime, knew Plaintiff was not paid for that overtime, and never did anything to ensure that Plaintiff was paid for it. Instead, Gilbert tried to blame Plaintiff, claiming falsely she did not report the overtime because Plaintiff asked her not to.
• Maggie Grover, a disinterested third party who reported to Gilbert at the same time Plaintiff did, testified that she witnessed Plaintiff clock out at the end of the day and go back to her desk and continue working.
• Maggie Grover also testified that overtime was not allowed at GateHouse, meaning employees could work overtime, but they would never get paid for it.
• Two years into the litigation, and after requiring Plaintiff to hire lawyers and file a case in federal court to recover money she was undisputedly owed, Defendants tried to absolve themselves of liability by paying Plaintiff $180 and claimed this was the most Plaintiff would ever be entitled to receive.
• Consistent with the testimony of Plaintiff and Maggie Grover, no one in the entire composing department was paid a single hour of overtime for the entire year of 2010. This is so despite the fact that Defendants' witnesses all testified that although overtime was discouraged, they would be paid if they worked it. Indeed, Jay Bogardus (one of the current Shaw Media employees who was called to say bad things about Plaintiff) testified that he knew of an employee who had worked overtime in 2010 and had been paid, yet the records do not support this claim. Further, Gilbert testified that given the nature of Defendants' deadline-driven business, it would be unusual if there was not overtime worked in Plaintiff's department, yet again, not a single hour of overtime was paid in 2010.
In sum, the evidence shows that Defendants plainly knew Plaintiff was entitled to be paid overtime wages, yet they went to great lengths to deny her these wages. While Gilbert tried to blame Plaintiff for changing her own time cards and otherwise denied knowing about Plaintiff's overtime, the Court and the jury had the opportunity to observe Gilbert throughout the trial and conclude that she simply was not credible on this or many other points. Gilbert's non-credible denials do not amount to good faith and Defendants have failed to meet their burden.
As for the amount of liquidated damages, that is determined by first calculating the unpaid overtime compensation. An employer who violates the overtime provisions of the FLSA shall be liable to the employee affected in the amount of her unpaid overtime compensation and in an additional equal amount as liquidated damages. 29 USCS § 216. As noted above, the jury found Plaintiff worked 37.5 hours of overtime in 2010 and it is undisputed that Plaintiff's hourly rate was $20, meaning her overtime rate was $30 per hour ($20 x. 1.5). Accordingly, Plaintiff respectfully requests entry of judgment in the amount of $1,125 for the unpaid overtime and an additional $1,125 as liquidated damages, for a total of $2,250 on her FLSA claim. See also Shea, 152 F.3d at 733 (noting that there is a "strong presumption" in favor of doubling); Bankston, 60 F.3d at 1254. ("Doubling is the norm, not the exception").
IV. Statutory Penalty Under The Illinois Minimum Wage Law
On Plaintiff's claim for unpaid overtime under the Illinois Minimum Wage Law ("IMWL"), and separate from recovering $1,125 in overtime pay and an equal amount for liquidated damages under the FLSA, Plaintiff is also entitled to a statutory penalty. Specifically, under the IMWL, an employee who is not paid as the statute requires is entitled to recover the amount of the underpayment, plus "damages of 2% of the amount of any such underpayments for each month following the date of payment during which such underpayments remain unpaid." 820 ILCS 105/12(a). As one district court observed, "It would appear that this penalty is imposed over and above the damages, including liquidated damages, that are available under the FLSA." Calderon v. J. Younes Constr. Llc & John Younes, LLC, 2013 U.S. Dist. LEXIS 87817 at *23 (N.D. Ill. June 23, 2013)(Kennelly, J.) Here, as of April 30, 2015, the number of months Plaintiff remained unpaid is approximately 50. Accordingly, the statutory penalty Defendants owe Plaintiff is $1,125.00 ($1,125 x .02 x 50 months).
V. Reinstatement Or Front Pay
Under the FMLA, an employer who violates the statute "shall be liable ... for such equitable relief as may be appropriate, including employment, reinstatement, and promotion." 29 U.S.C. § 2617(a)(1)(B). Alternatively, front pay is an equitable remedy designed to supplant reinstatement where reinstatement would be infeasible. Breneisen v. Motorola, Inc., 2009 U.S. Dist. LEXIS 52360 (N.D. Ill. June 22, 2009)(citing Franzen, 543 F.3d at 426). Front pay is designed to place the plaintiff "in the identical financial position that he would have occupied had he been reinstated." Avitia v. Metropolitan Club, 49 F.3d 1219, 1231 (7th Cir. 1995). Front pay is also an appropriate remedy for Plaintiff's state law claim for retaliatory discharge. See Hunt v. DaVita, Inc., 2010 U.S. Dist. LEXIS 128527, *3-4 (S.D. Ill.Dec. 6, 2010)(as a matter of Illinois law a wrongfully discharged employee may recover lost back pay and front pay from her former employer for the period following the discharge until the employee either finds new employment or is reinstated) (citations omitted).
Here, Plaintiff seeks reinstatement to the position of Senior Production Coordinator, or in the alternative if reinstatement is infeasible, front pay for 3 years. Plaintiff's request for reinstatement or 3 years of front pay is reasonable in light of her qualifications, long-term history of employment with Defendants, commitment to continued employment, and established earnings. Based on the difference between Plaintiff's W-2 earnings and the W-2 earnings of the Senior Production Coordinator for 2014 (Joint Exhibits 15 and 20), the amount of front pay for 3 years is $16,148.46 ($5,382.82 x 3 years). Accordingly, Plaintiff seeks reinstatement or $16,148.46 in front pay.
VI. Award For Adverse Tax Consequences
As an additional remedy, Plaintiff also seeks $6,567.30 to offset the tax burden she will incur as a result of her lump-sum back-pay and/or front pay award, which the Seventh Circuit recently recognized as an appropriate remedy in employment discrimination cases. EEOC v. NorthernStar Hospitality, Inc., 777 F.3d 898, 902-904 (7th Cir. 2015)(citing Eshelman v. Agere Sys., 554 F.3d 426, 441 (3d Cir. 2009) (holding that "an award to compensate a prevailing employee for her increased tax burden as a result of a lump sum award will, in the appropriate case, help to make a victim whole") and Sears v. Atchison, Topeka & Santa Fe Ry. Co., 749 F.2d 1451, 1456 (10th Cir. 1984) (upholding award of tax component to back pay given a district court's "wide discretion in fashioning remedies to make victims of discrimination whole")).
While the Seventh Circuit found an award to offset higher taxes appropriate in a Title VII case, such an award is also appropriate under the FMLA, which similarly provides for equitable relief. 29 U.S.C. § 2617(a)(1)(B); see also Powell v. N. Ark. College, 2009 U.S. Dist. LEXIS 59826 (W.D. Ark. July 1, 2009)(in FMLA case finding "the Court is of the opinion that if the back pay awarded by the jury will push [plaintiff] into a higher tax bracket than she would have been in had the monies been timely paid, in equity the [defendant] should be required to cover that expense as part of making [plaintiff] whole." Powell v. N. Ark. College, 2009 U.S. Dist. LEXIS 59826 at *7 (W.D. Ark. July 1, 2009).
Here, upon Plaintiff's receipt of $65,673.01 in back pay, taxable as wages in the year received, see Northern Star Hospitality, 777 F.3d at 902 (citing IRS Pub. No. 957 (Rev. Jan. 2013), available at www.irs.gov/pub/irs-pdf/p957.pdf), Plaintiff will be bumped into a higher tax bracket. The resulting tax increase, which would not have occurred had she received the pay on a regular, scheduled basis as she should have, will then decrease the total award she will receive. As the Seventh Circuit explained, without the tax-component award, Plaintiff will not be made whole. Northern Star Hospitality, 777 F.3d at 902. Accordingly, Plaintiff should be awarded $6,567.30 to offset the additional tax burden.
Plaintiff's W-2 for 2014 reflects wages of $35,665.40. (Joint Exhibit 15) If Plaintiff's wages remain consistent in 2015, which is probable given that she remains employed by the same company, her tax bracket would be 15%, but adding the back pay award of $65,673.01 would bump her to the next highest tax bracket of 25%. (see Rev. Proc. 2014-61 available at www.irs.gov/pub/irs-drop/rp-14-61.pdf). Accordingly, Plaintiff calculated the tax component by multiplying the back pay award by the 10% increase in taxes.
VII. Attorneys' Fees And Costs
In addition to the damages set forth above, Plaintiff seeks attorneys' fees and costs for prevailing on her overtime and FMLA claims. With respect to the FMLA claims, the statute provides: "The court in such an action shall, in addition to any judgment awarded to the plaintiff, allow a reasonable attorney's fee, reasonable expert witness fees, and other costs of the action to be paid by the defendant." 29 U.S.C. § 2617(a)(3). As the Seventh Circuit has explained, "[u]nlike most other statutory fee-shifting provisions, section 2617 requires an award of attorneys' fees to the plaintiff when applicable. The award is not left to the discretion of the district court." Franzen v. Ellis Corp., 543 F.3d 420, 430 (7th Cir. 2008)(emphasis in original)(citations omitted). In this way, the fee-shifting provision under the FMLA is more favorable toward prevailing plaintiffs than many other statutory fee-shifting provisions. Id. (citing McDonnell v. Miller Oil Co., Inc., 968 F.Supp. 288, 293 (E.D. Va. 1997)).
Plaintiff also seeks attorneys' fees and costs for prevailing on her overtime claims. The FLSA directs courts to award reasonable attorneys' fees and costs to prevailing parties. See 29 U.S.C. § 216(b) ("The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the defendant, and costs of the action."); Spegon v. Catholic Bishop of Chicago, 175 F.3d 544, 550 (7th Cir. 1999). Similarly, the IMWL states that a prevailing party "may recover * * * costs and such reasonable attorney's fees as may be allowed by the Court." 820 ILCS 105/12(a).
Accordingly, Plaintiff respectfully requests reasonable attorneys' fees and costs, which will be detailed in separately filed motions pursuant to Federal Rule of Civil Procedure 54(d) and Local Rules 54.1 and 54.3
VIII. Conclusion
Based on the foregoing, Plaintiff respectfully requests this Court enter judgment in Plaintiff's favor and award Plaintiff the following relief consistent with the jury's verdict and case law: back pay in the amount of $65,673.01; prejudgment interest in the amount of $9,509.72; unpaid overtime compensation in the amount of $1,125; liquidated damages in the amount of $76,307.73 ($65,673.01 + $9,509.72 + $1,125); statutory penalty under the IMWL in the amount of $1,125; emotional distress damages in the amount of $60,000; punitive damages in the amount of $125,000; reinstatement or front pay in the amount of $16,148.46; and $6,567.30 to offset the additional taxes she will owe as a result of the back pay award. Plaintiff also respectfully requests attorneys' fees as determined by Federal Rule of Civil Procedure 54(d)(2) and Local Rule 54.3 and costs as determined by Federal Rule of Civil Procedure 54(d)(1) and Local Rule 54.1.
Prevailing Prime Rage
3.25
Monthly Rate:
0.00270833
Date
Prejudgment Interest on $65,673.01
2/17/2011
$65,673.01
3/17/2011
$65,850.87
4/17/2011
$66,029.22
5/17/2011
$66,208.05
6/17/2011
$66,387.36
7/17/2011
$66,567.16
8/17/2011
$66,747.45
9/17/2011
$66,928.22
10/17/2011
$67,109.48
11/17/2011
$67,291.24
12/17/2011
$67,473.49
1/17/2012
$67,656.23
2/17/2012
$67,839.46
3/17/2012
$68,023.19
4/17/2012
$68,207.42
5/17/2012
$68,392.15
6/17/2012
$68,577.38
7/17/2012
$68,763.11
8/17/2012
$68,949.34
9/17/2012
$69,136.08
10/17/2012
$69,323.32
11/17/2012
$69,511.07
12/17/2012
$69,699.33
1/17/2013
$69,888.10
2/17/2013
$70,077.38
3/17/2013
$70,267.17
4/17/2013
$70,457.48
5/17/2013
$70,648.30
6/17/2013
$70,839.64
7/17/2013
$71,031.50
8/17/2013
$71,223.88
9/17/2013
$71,416.77
10/17/2013
$71,610.19
11/17/2013
$71,804.14
12/17/2013
$71,998.61
1/17/2014
$72,193.60
2/17/2014
$72,389.13
3/17/2014
$72,585.18
4/17/2014
$72,781.77
5/17/2014
$72,978.88
6/17/2014
$73,176.53
7/17/2014
$73,374.72
8/17/2014
$73,573.44
9/17/2014
$73,772.70
10/17/2014
$73,972.51
11/17/2014
$74,172.85
12/17/2014
$74,373.73
1/17/2015
$74,575.16
2/17/2015
$74,777.13
3/17/2015
$74,979.66
4/17/2015
$75,182.73
75,182.73
65,673.01
Total Prejudgment Interest
9,509.72
Chicago, Illinois November 16, 2022
10:03 o'clock a.m.
EXCERPT OF TRIAL PROCEEDINGS BEFORE THE HONORABLE SUSAN E. COX, AND A JURY
APPEARANCES:
For the Plaintiff: THE LAW FIRM OF JOHN C. IRELAND BY: MR. JOHN C. IRELAND 636 Spruce Street South Elgin, Illinois 60177
For the Defendant: ZANE D. SMITH & ASSOCIATES, LTD. BY: MR. ZANE D. SMITH MS. SHEILA A. GENSON 111 W. Washington St., Suite 1750 Chicago, Illinois 60602
Court Reporter: MR. JOSEPH RICKHOFF Official Court Reporter 219 S. Dearborn St., Suite 2128 Chicago, Illinois 60604 (312) 435-5562
PROCEEDINGS RECORDED BY MECHANICAL STENOGRAPHY TRANSCRIPT PRODUCED BY COMPUTER
(Proceedings had in open court:)
THE CLERK: 19 CV 1441, Wiseman vs. Santiva. * * * * *
THE COURT: Call your next witness, please.
MR. IRELAND: Mr. Henning, please.
THE COURT: Come on up, Mr. Henning. Take your place in the witness box and raise your right hand, prepare to be sworn.
THE CLERK: Sir, can you please raise your right hand.
State and spell your last name for the record, please.
THE WITNESS: Raymond Scott Henning, H-e-double n-i-n-g.
RAYMOND SCOTT HENNING, DEFENDANT HEREIN, SWORN
THE COURT: You may proceed.
MR. IRELAND: Thank you.
DIRECT EXAMINATION
BY MR. IRELAND:
Q. Good morning, Mr. Henning.
A. Good morning.
Q. Can you state your name for the record again.
A. Raymond Scott Henning.
Q. And are you the sole owner of Santiva and the other named defendants?
A. Yes.
Q. And how did Rosemarie Wiseman -MR. IRELAND: Strike that.
BY MR. IRELAND:
Q. You heard the testimony of Rosemarie Wiseman in regards to how she reported her work hours when she was on the stand. You were here, correct?
A. Yes.
Q. And you agree that she followed those procedures as -- in regards to making a timesheet, submitting it, or having a phone call with you or a text message with you regarding that, correct?
A. It was pretty much always timesheet
Q. Okay.
A. -- given to me.
Q. And
THE COURT REPORTER: Hold on a second.
(Brief pause.)
BY THE WITNESS:
A. Timesheets were handed to me.
BY MR. IRELAND:
Q. Okay.
But they were also left on your desk and there was also occasions when it was communicated by e-mail, text or orally, correct?
A. I don't remember it being by e-mail, text or orally. It was usually on my desk.
Q. Okay.
And you also heard testimony that Mr. Wiseman's hours were also found on Mrs. Wiseman's timesheets, correct?
A. That she instituted, yes.
Q. Well, I'm going to ask you to answer my questions.
A. Yes.
Q. Whether or not she did it or you did it
MR. SMITH: Objection.
THE COURT: The objection is overruled.
Answer the question that's asked.
BY THE WITNESS:
A. Yes.
BY MR. IRELAND:
Q. And as a result of that, for a period of time, Mr. Wiseman's wages appeared on Mrs. Wiseman's checks in a merged fashion; would you agree?
A. Yes.
Q. Okay.
MR. IRELAND: Exhibit B-027, your Honor.
THE COURT: Of Group Exhibit
MR. IRELAND: I'm sorry?
THE COURT: Which group exhibit?
MR. IRELAND: Exhibit B.
THE COURT: Thank you. Sorry. I missed that.
MR. IRELAND: 027.
THE COURT: Thank you.
MR. IRELAND: Yep.
BY MR. IRELAND:
Q. We've seen this one a number of times, so I'm not going to spend a lot of time on it. But we've had testimony from both -- from the plaintiff that that "in" is your "in"; is that correct?
A. Correct.
Q. So, that is you would circle it; you would put the "in"; and then you would submit it. You would be the person submitting it to the payroll processor, correct?
A. I would call it in.
Q. Okay.
And call it in to the payroll processor?
A. Yes.
Q. Okay.
And is this writing down here also yours?
A. Yes.
Q. Okay.
And did you write the word "Cary"?
A. Yes.
Q. All right.
And, then, it has 84.25 hours found on the timesheet from Ms. Wiseman, correct?
A. Correct.
Q. All right.
And we've already gone over the math. There's two extra hours that Ms. Wiseman overcharged you for. So, her actual hours for this would be 82.25, correct?
A. Correct.
Q. All right.
Exhibit C-548.
THE COURT: Okay.
BY MR. IRELAND:
Q. This is the related check from the same Dated: 9-1, 9-1.
And the amount paid is 103.25, correct?
A. Correct.
Q. Okay.
Would you agree with me that the differential between the 103 and the 82.25 is a payment to Mr. Wiseman, not to Mrs. Wiseman?
A. Not necessarily.
Q. Okay.
Why is it not?
A. It could have been just a mistaken note that I put on that piece of paper.
Q. So, why did you pay 103.25 if not a payment to Mr. Wiseman?
A. Because it could have been an error of extra money that I did by accident.
Q. So, you could have called in an extra 19 hours to Mrs. Wiseman
A. If we needed
Q. -- and it has nothing to do with Mr. Wiseman?
A. I could have.
Q. But you agree that Cary Wiseman's name there with an arrow pointing to the 23.25 hours of overtime, correct?
A. Just a notation on that piece of paper.
Q. Okay.
So, you just put that there for no reason?
A. I was doing something with that number.
Q. Okay.
But you agree that the wages of the two plaintiffs -excuse me -- Mr. and Mrs. Wiseman were merged at this point? A. There is no Cary next to any of these dates. That would mean that he was not included on one of these dates. He should not have had a paycheck.
Q. So, you're denying that this payment was to Mr. Wiseman?
A. I believe it was not.
Q. Okay.
So, this was all Rose-
A. It was -- I think it was an error, actually
Q. Okay.
A. -- that I gave
Q. So, you made an error?
A. -- him extra money.
Q. What was your error?
A. I believe I had a notation made for something else and gave extra money to Rosemarie that was not even on her timesheet.
Q. Okay.
What was the over -- extra money to Rosemarie for?
A. I think it was an error.
Q. Okay.
An error for what reason?
A. Because it was an error that I just called it in because I saw those -- a notation on my sheet and called it in.
Q. But you
A. I would follow -- I normally always followed her sheet and called in based on her hours.
Q. Okay.
But you agree you wrote 80 reg, right?
A. That would be 80 regular.
Q. You agree that you wrote 23.25 hours, correct?
A. Correct.
Q. That's not Mrs. Wiseman's notes?
A. That might not -- might not even pertain to this check.
Q. Do you agree --
A. It was just written on this piece of paper.
Q. Okay.
So, it was just a random doodle?
A. It could have.
Q. Okay.
A. I make notes all over the place.
Q. Okay.
You agree that 80 and 23.25 equals 103.25, right?
A. Yes.
Q. Okay.
There were some questions about access to your work computer. Do you remember that?
A. Refresh me.
Q. Okay.
Your attorney asked Mrs. Wiseman about the documents found on her computer and there was questions. Did you have access to Mr. Henning's computer? Is your -A. I'm Mr. Henning.
MR. SMITH: Hold on. I'm going to object to the form. I think he just asked if he had access to Mr. Henning's computer.
MR. IRELAND: I meant she.
THE COURT: You can rephrase, Mr. Ireland.
MR. IRELAND: Thank you, your Honor.
BY MR. IRELAND:
Q. So, the rephrasing is, did you -- do you now recall Mr. Smith asking my client if my client had access to your work computer?
A. I believe he did.
Q. Okay. Great.
And I think the implication was that she didn't?
A. She had access to my computer when she was at the office.
Q. Okay. Thank you.
And you say that you had, and Santiva had, a no unauthorized overtime policy, right?
A. That's what I required and asked.
Q. Okay.
What handbook does Santiva have to demonstrate the existence of this alleged policy?
MR. SMITH: I'm going to object to that question because it suggests that a handbook's required.
THE COURT: Overruled.
BY THE WITNESS:
A. We have no handbook. We're a small company.
BY MR. IRELAND:
Q. Okay.
But you're able to write a handbook, right, or hire somebody to write a handbook?
MR. SMITH: Objection.
THE COURT: Overruled.
BY THE WITNESS:
A. I've never had to write a handbook.
BY MR. IRELAND:
Q. Mr. Henning, it would be a lot faster if you answer my question. I asked if somebody could or you could write a handbook.
A. Of course.
Q. Thank you.
Did you write a memorandum to any of your employees saying what you claim is the overtime unauthorized policy?
A. No.
Q. Did you ever send an e-mail to the plaintiff instructing her in regards to this alleged no overtime policy?
A. I could have written an e-mail somewhere saying I do not want overtime.
Q. Okay.
But referencing the unauthorized overtime policy, did you ever write an e-mail?
A. No. Because it was a verbal policy.
Q. Okay.
So, you agree that the only alleged existence of the communication to my client was you saying to her no overtime -- no unauthorized overtime
A. Yes.
Q. -- correct?
You never once texted her and said, hey, what are you work - -- why are you working on a Saturday, this isn't authorized?
A. Because I always told her I don't want overtime and I kept getting it.
Q. Right.
But you never put it in writing in an e-mail, a text, a document, a discipline, a termination notice. Nothing, right?
A. Well, it's because I saw her every week.
Q. I understand.
But you communicated with her frequently. We saw a lot of e-mails. We have a thick stack of texts, which is in evidence. Not once in any of those communications do you say, I have this policy of unauthorized overtime, correct?
A. No, you must not have seen it, no.
Q. Did I miss it?
A. I haven't created -- I haven't looked at every one of those back and forth again to check to make sure I did not.
But I know that we've always talked about no overtime constantly.
Q. Mr. Henning, I'm focused on documents. So, please, I understand you want to say that you said it -A. I do not believe
Q. -- you've said that?
A. I do not believe
THE COURT: You're talking over each other. Ask a question.
Answer the question that's asked.
BY THE WITNESS:
A. I don't believe I ever sent an e-mail out like that or a text.
BY MR. IRELAND:
Q. And when somebody worked, quote-unquote, unauthorized overtime, you didn't pay that, quote-unquote, unauthorized overtime, correct? That was your policy?
A. No. I always paid every overtime that Rose gave me.
Q. Mr. Henning, again, I didn't ask if you paid everything that Rose submitted. I asked if you didn't pay unauthorized overtime as a policy. So, can you answer that question?
A. I never not paid overtime as a policy.
MR. IRELAND: Page 76, counsel, 21 to 24 and 77, 1 to 2 .
BY MR. IRELAND:
Q. You were deposed in this case, correct, sir?
A. Yes.
Q. And you were sworn to tell the truth, correct?
A. Yes.
Q. And you did tell the truth then?
A. Yes.
Q. And I asked you this question:
"If you received work hours report from the plaintiff and there was unapproved overtime on that sheet, you would pay it?"
"Answer: I wouldn't pay anything that wasn't approved."
You testified
A. Yes.
Q. -- to that?
A. Yes. And I approved her overtime and paid it.
THE COURT: There's no question pending, sir.
THE WITNESS: Oh, sorry.
THE COURT: Please.
MR. SMITH: Your Honor, I would object to strike that as non-impeaching.
THE COURT: Overruled.
Ask your question.
MR. IRELAND: Thank you, your Honor.
BY MR. IRELAND:
Q. When did you not pay Mrs. Wiseman for unauthorized time?
A. Never.
Q. So, any of the shortages that we've seen in the documents is not related to your unapproved authorized time, correct?
MR. SMITH: I'm going to object to the form of the question. Shortages. I don't know what that means.
THE COURT: Overruled.
The witness can answer the question.
BY THE WITNESS:
A. I think you would see on both sides there was occasionally errors of adding up time for -- whether it would be Rosemarie's or me entering once in a while or the payroll service hearing it wrong and putting a final amount on a check.
BY MR. IRELAND:
Q. Mr. Henning, I didn't ask about that. I asked if the shortages in the paychecks and the timesheets that we had were the result of your deductions for this unauthorized -A. No.
Q. -- overtime.
A. Never.
Q. Exhibit B-031.
Do you remember this timesheet, Mr. Henning?
A. There were many, but I -- yes, I guess so.
Q. You remember this one? It was 91 hours point five, correct?
A. I don't see my "in" on top, but I imagine it's something she gave me.
Q. Thank you for pointing that out. I agree.
There's no "in" at the top, correct?
A. Which I didn't always do.
Q. Okay.
Exhibit C-552. This is a payment of 85 hours; would you agree?
A. It says 85.
Q. I'm sorry?
A. It says 85.
Q. And this is 84 and 84, correct?
A. Correct.
Q. Okay.
91.5 reported, 85 found on the paycheck, correct?
A. Correct.
Q. And I think yesterday Mr. Smith did a fine job pointing out that some of these, math doesn't add up; would you agree? A. Agreed.
Q. Okay.
Did you add up the columns and deduct the wages
A. No.
Q. -- or the hours based on that?
A. No. Because you would have seen my notation on there doing that.
Q. Okay.
So, if you're doing that based upon the math, you would put a note on there; is that your testimony?
A. If I was checking her time and trying to add it up, which I often did not, I just would call it in.
Q. Okay.
So, if it wasn't related to the math errors, why did you pay 85 on 91.5?
A. In error.
Q. I'm sorry?
A. In error, possibly calling it in.
Q. And you produced the Excel spreadsheet in Exhibit A, you agree?
A. I did not produce that.
Q. This isn't a defendant document?
A. This was created by Rosemarie.
Q. Right.
THE COURT: That was - again, that's
BY MR. IRELAND:
Q. But which party produced that document?
A. I printed it off the computer she used.
Q. And you gave it to your attorney?
A. Yes.
Q. Okay.
And this, from that Excel spreadsheet, is that two-week period, correct?
MR. IRELAND: I'm sorry, your Honor, Exhibit A-1299.
THE COURT: Thank you.
MR. IRELAND: And let me see if I can get both of them on the screen.
BY MR. IRELAND:
Q. 45.5, 45.5; 46, 46, correct?
A. Correct.
Q. All right.
So, this is the Excel spreadsheet with a bunch of notes that weren't on this document which you didn't put the i-n in, correct?
A. Correct.
Q. Okay.
And if you do the math with all of the additional notes, the math actually works; would you agree?
A. I would have to try to sit and figure it all out, like I always had to.
Q. There's a calculator in front of you. Can you please
A. I never -- I never had this Excel spreadsheet till after Rosemarie left. So, only thing I ever got was a modified version of that.
Q. Okay.
A. So, I'm just letting you know.
Q. So, you didn't see the Excel spreadsheet while Rosemarie Wiseman was working there, correct?
A. No.
Q. It was on her computer at work?
A. Alls I did was get a copy
THE COURT: Again, answer the question asked.
BY THE WITNESS:
A. No, I never saw that Excel spreadsheet till after she left.
BY MR. IRELAND:
Q. Mr. Henning
A. Yes.
Q. -- my question was: Was it on her computer?
A. Yes.
Q. It's your computer at your facility?
A. The computer she used.
Q. It's your computer at your facility?
A. Yes.
Q. Okay.
And you had the passwords to get into that computer?
A. We both did.
Q. Okay.
So, you could have accessed it at any time?
A. If I knew that was there.
Q. Okay.
So, while you were -- while she was working, you say that you had this sheet, correct?
A. That's what she would give me weekly.
Q. And you had access to this check, correct?
A. Well, I called in that check.
Q. You didn't review the checks when they came in?
A. I usually would sign them and give them to her.
Q. Okay.
And while she was employed, you could have seen that she was shorted the difference between 91.5 and 85, correct? A. Correct.
Q. And during your -- during her employment with you and Santiva, you didn't pay the differential, correct?
A. I have no recollection because Rose would let me know when I was a quarter hour off. So, I don't know why she didn't know this and have me pay her.
Q. My question is: Did you pay the differential while Rosemarie Wiseman was working there?
A. I have no idea with this information.
Q. You have no idea?
A. Not with this check. I don't know if there was another check that I gave her or added it, hours into a following check.
Q. What hours were added what week?
A. I don't know. You have to show me.
Q. I'm asking you, sir. You're the witness. I'm asking you what week you added the differential in to some other week.
A. I don't know.
Q. You agree that Mr. Smith went through in detail and demonstrated all of the overpayments, underpayments and math errors from 2015 to 2018; would you agree?
A. Agree.
Q. How much did that add up to?
A. Don't know.
Q. You didn't add it up?
A. No.
Q. Okay.
Would you disagree with me that it was about 5.75 hours or six hours?
A. Possibly.
Q. Over, I mean. There's also under.
A. Yeah.
Q. Okay.
A. I could have easily paid more
Q. Okay.
A. -- than I owed.
Q. But you have no record of repayment of this that you can testify to right now, correct?
A. No, but there was obviously a check I paid them too much to that we just looked at.
Q. You mean the 103.25 that had nothing to do with Cary Wiseman?
A. Correct.
Q. Okay.
So, you believe that that was repayment for this?
A. No.
Q. Okay.
And during this litigation, you saw that Excel spreadsheet, and you saw the check for less hours than was on both the first version of the hours and the Excel version.
You saw those documents, right?
A. If they're here, I've seen them.
Q. Right.
During the litigation, you saw them?
A. Yes.
Q. During the litigation, you didn't pay anything to
Ms. Wiseman for those shorted hours, correct?
A. I don't recall.
Q. Was there a check that you presented to me or counsel to pay for those hours?
A. I don't recall.
Q. So, you might have given a check to me?
A. I didn't give a check to you for anything.
Q. Okay.
And you understand that if you're going to pay Mrs. Wiseman at this time, you have to pay it through me? A. I don't understand.
MR. SMITH: Objection as to form.
THE COURT: Why don't you rephrase the question.
MR. IRELAND: I'm sorry, your Honor?
THE COURT: Why don't you rephrase the question.
MR. IRELAND: Yes, your Honor.
BY MR. IRELAND:
Q. Can I talk to you outside the presence of your counsel?
MR. SMITH: Objection, your Honor.
THE COURT: Overruled.
BY THE WITNESS:
A. Why?
BY MR. IRELAND:
Q. I didn't ask why, sir. I asked can I under the ethical rules of this state?
MR. SMITH: Oh, your Honor.
THE COURT: Just have a seat, Mr. Smith.
If you know the answer, answer it. If you don't know, you don't know.
BY THE WITNESS:
A. I don't know.
BY MR. IRELAND:
Q. So, if you didn't pay a check to me, did you pay a check and send it to Ms. Wiseman for those hours?
A. Not that I can recall.
Q. If you find one, can you please give it to your attorney so that we may submit it in evidence?
A. Is that a joke?
MR. SMITH: Objection. Your Honor
THE COURT: Excuse me, Mr. Smith.
What's the nature of your objection? Argumentative?
MR. SMITH: Yes.
THE COURT: Sustained.
BY MR. IRELAND:
Q. We've seen a number of notations on the timesheets, both the big sheets and the Excel spreadsheet, would you agree, from Mrs. Wiseman?
A. Yes.
Q. Many of them refer to work from home or work over the weekend. You agree?
A. Yes.
Q. And would you agree that you do not inquire regarding what those notations are? Would you agree?
A. I didn't understand a lot of the notations.
Q. I didn't ask you if you understood them. I asked did you inquire with Rosemarie Wiseman about those notations?
A. No. I paid the hours that she asked for.
Q. Okay.
And Mrs. Wiseman testified that you were asked to pay for some of the -- or, actually, she said all of the work that she did at home and you said no.
Do you remember that conversation?
A. No.
Q. Okay.
A. I never told her I wouldn't pay her for what she did.
Q. Again, please answer my questions.
MR. SMITH: Objection. Asked and answered.
THE COURT: Read the question back, Joe.
(Record read.)
THE COURT: Overruled.
BY MR. IRELAND:
Q. She also testified that in response to that inquiry or that request, that you agreed to pay one hour for two hours of work. Did you hear that?
A. That's what she testified.
Q. Right.
Do you disagree that she made that request?
A. It could have been her request.
Q. Okay.
A. But I paid her for what I believe she did.
Q. Okay.
Did you agree or did you offer to pay one hour for two hours worth of work?
A. No.
Q. You didn't agree to that?
A. I agreed to pay her what she worked and that was on her sheets, what she submitted.
Q. Exhibit B-41.
We've looked at this timesheet a couple times and your "in" is on it, correct?
A. Correct.
Q. And it indicates six hours home over the weekend, Amazon listings and see open cases.
Did I read that right?
A. Yes. That's something she's used.
Q. Okay.
And you made no inquiry regarding that -- what that meant whatsoever, correct?
A. That's notations to herself.
Q. I didn't ask if it was notations to themselves. I asked did you make an inquiry. And I believe you've already testified that you didn't make inquiries.
A. No. I paid her the hours, I'm sure, that were on her check that she gave me.
Q. And we've done the math on this one. You agree that this column adds up to 43.25, correct?
A. Correct.
Q. And you agree that the plus 3 is not found within that, correct?
A. I'd have to add those up.
Q. There's a calculator in front of you, sir.
A. Yes.
(Brief pause.)
BY THE WITNESS:
A. Okay. The hours that she put down, which is the 83.25, is what I paid. And that's what that adds up to.
BY MR. IRELAND:
Q. Mr. Henning, I asked you to add up this column and tell us if it's 43.25.
A. Yes, it is.
Q. Thank you.
It does not include the plus 3, correct? A. I don't know what the plus 3 means.
THE COURT: Again, Mr. Henning, please answer the question that's asked.
BY MR. IRELAND:
Q. Again, sir, the plus 3 is not included in the 43.25, correct?
A. I guess not. No.
Q. And you have testified that the person who could tell us what those entries mean is Mrs. Wiseman. Do you remember that?
A. She made the notations.
Q. So, she's the one that can tell us; you can't?
A. These are her notations.
Q. Right.
And you have no idea what they mean?
A. No. Because they vary all over.
Q. Okay.
This one says, home over weekend, Amazon listings.
You understand what that means, right?
A. That means that she worked over home at the weekend.
Q. Okay.
Six hours is what she put on the timesheet?
A. That's what she put.
Q. And
A. That's just written. I have no idea because I'm not there watching her. That's why we work from the office.
Q. Okay.
But here, she's reporting six hours work and it wasn't paid?
A. She can put down anything she wants. She could put down 400 hours as a notation to herself. I pay based on what she gives me.
Q. My question, sir, is: You didn't pay the six hours, correct?
A. No. It's not tabulated by her.
Q. And you didn't understand that? You had no idea what that entry was?
A. She's making notations to herself of something she's doing.
Q. Okay.
So, you have no idea, but you understand what Amazon listings are, correct?
A. This could be six hours and home over the weekend.
Q. Mr. Henning, you understand what Amazon listings are?
MR. IRELAND: Move to strike the last response, your Honor.
THE COURT: I'll let the response stand.
MR. IRELAND: Okay, your Honor.
BY MR. IRELAND:
Q. You understand what Amazon listings mean, right?
A. Well, yes.
Q. Okay.
And you understand what home over weekend means, right?
A. Yes. That's her notations to herself.
Q. Not to you? A. Not necessarily.
Q. This was given to you, though?
A. Yes.
Q. Okay.
A. She printed it out.
Q. Right.
And gave it to you?
A. Yes.
Q. And you didn't pay the six hours?
A. It's not added up by her to pay it.
Q. Mr. Henning, you didn't pay the six hours?
A. She didn't give me the six hours to pay.
Q. Mr. Henning, for the third time -- is this funny?
A. I don't understand why you're asking me because it's not tabulated in her hours.
Q. Mr. Henning
THE COURT: Mr. Henning
BY MR. IRELAND:
Q. -- this is not a conver-
THE COURT: -- I have to -- Mr. Henning, you need to answer the questions that Mr. Ireland asks unless they're objected to and I sustain the objection.
THE WITNESS: Okay.
BY THE WITNESS:
A. No, I didn't pay the six hours that were not added up.
BY MR. IRELAND:
Q. Exhibit A-1297. Again, we've looked at this timesheet a couple times. This is the timesheet where she reported on the Excel spreadsheet 94.75 and she put a note, told Scott 86 hours.
Do you see that?
A. I see that.
Q. Okay.
Do you have -- Exhibit C-572 shows that you paid 86 hours, correct?
A. That's what she said she told me.
Q. Right. She says she told you that?
A. Yeah.
Q. Yeah.
And she did tell you that, right?
A. I believe so. Do you have my sheet that she turned in?
Q. No, sir. It's not been produced.
A. Well, that - those
THE COURT: Again, there's no question pending
THE WITNESS: Oh, sorry.
THE COURT: -- Mr. Henning. Those are the rules.
MR. IRELAND: Plaintiff's 25, counsel, 66 and 67.
BY MR. IRELAND:
Q. Is this a text message from you dated March 16th, 2017?
A. Okay.
Q. Is that a "Yes," sir?
A. Yes.
Q. Okay.
And you say: Rose, can you send me the hours? I need to call them in.
Do you see that?
A. Correct.
Q. 9:28 a.m.?
A. Okay.
Q. Here is 9:31 a.m., Response from Mrs. Wiseman: Hours, 86.5.
Correct?
A. That's what she got paid.
Q. It says 86 on this check?
A. Oh. .5. Okay.
Q. You didn't pay her the .5?
A. I paid her the 86.
Q. You paid her 86. Why did you pay her 86?
A. Because that's maybe what the payroll heard me calling it in.
Q. So, it's payroll's fault?
A. I could have said 86.5. They might have heard 86.
Q. Okay.
So, it's the pay-
A. I don't know whose fault it is.
Q. So, do you check the checks when they come in to make sure they're right?
A. You just asked me that. And I usually just signed them and give them to Rose. If she was shorted .5 hours, she should have let me know like she's done before in the past. She's let me know she was off a quarter hour.
Q. So, it's her fault?
A. I'm not saying
MR. SMITH: Objection
BY THE WITNESS:
A. -- it's her fault.
MR. SMITH: -- as to the form suggesting --
THE COURT: Overruled.
BY THE WITNESS:
A. It's no one's fault. If there's an error, someone -we -- I correct it.
BY MR. IRELAND:
Q. Have you repaid that .5 during her employment?
A. Probably with the extra money I paid her along the way.
Q. So, the overages and underages, that took care of this?
A. We don't know.
Q. You have no record of repayment of this then?
A. No, but Rose often would say, you owe me .25 hours, and I paid her.
Q. When did she say that?
A. There was a notation on one of her checks or something that she put in on a paycheck, shorted .25 hours. She added it to that and I paid her, if she noticed it.
Q. Other than that one occasion, when did that notation occur?
A. Well, that could have been many occasions after how many years.
Q. When did that occur?
A. I don't know, but it did happen.
Q. But we haven't seen any other documents indicating that?
A. No. Obviously, it happened once. It could have happened again --
Q. Could have happened a thousand times?
A. No. There wasn't a thousand checks in that time.
Q. And at the time, you were told 86 and 86.5 or 86.5 and you paid 86, but the actual timesheet shows 94.7, correct?
A. That's an Excel spreadsheet that I never had access or saw until after Rose has left.
Q. During this litigation, after you had access, did you make a payment to Mrs. Wiseman for the differential between 94 hours -- 94.75 hours and 86 hours?
A. No, because those are
MR. SMITH: Objection.
BY THE WITNESS:
A. -- just her notes.
MR. SMITH: Hold on. Hold on, Scott.
THE COURT: Hold on. You need to wait.
What's the objection?
MR. SMITH: Objection. That calls for a legal conclusion as to whether there was any obligation to do that.
THE COURT: Overruled.
BY MR. IRELAND:
Q. The question was: Did you ever make a payment during this litigation for the differential between the 86, the 86.5 and the 94.75?
MR. SMITH: Objection.
BY THE WITNESS:
A. For something I never saw, of course not.
THE COURT: Mr. Henning, I just told you when there's an objection, you have to stop talking.
THE WITNESS: Okay.
THE COURT: What's the objection?
MR. SMITH: Same objection. He asked the question again.
THE COURT: And I overruled your objection. Okay?
BY THE WITNESS:
A. I couldn't have paid her on something I never saw.
THE COURT: There isn't a question
THE WITNESS: Oh.
THE COURT: - pending.
THE WITNESS: I thought I was still answering his question.
THE COURT: Mr. Henning, I'm going to have to say again we have rules in the courtroom. The rules are the attorney asks the questions, you answer the question. Okay? That's how it works. Your lawyer will have a chance to ask you questions, too.
THE WITNESS: Okay.
THE COURT: Are we clear here?
THE WITNESS: Yeah.
THE COURT: Please.
THE WITNESS: Yes.
THE COURT: Thank you.
MR. IRELAND: Your Honor, did I get an answer to that question?
THE COURT: I'm not sure.
MR. IRELAND: I'm going to ask it again because I don't think I did.
THE COURT: Have Joe read it back.
(Record read.)
THE COURT: And the question was?
MR. IRELAND: The question was: Did you pay her this during this litigation?
I can do a follow-up, your Honor.
THE COURT: I think you should just follow up. I think he
MR. IRELAND: Yes, your Honor.
THE COURT: -- did answer the question, at least in part.
MR. IRELAND: His answer was that he never saw it.
BY MR. SMITH:
Q. You saw it during this litigation, correct?
A. Yes.
Q. Okay.
And your attorney has analyzed, reviewed, calculated all of the shortages, the overages, the underages, all of that, correct?
A. To the best of their ability.
Q. Okay.
So, my question is. During this litigation, did you pay Mrs. Wiseman for the shortage from the 86.5, that was reported to you in a text message, or the 94.7, which was found on the Excel spreadsheet?
MR. SMITH: Objection, your Honor. That suggests that the amount is actually owed.
THE COURT: Okay. Overruled. And I have now overruled that same objection three times. Okay?
MR. SMITH: Different question, but okay.
BY THE WITNESS:
A. I'll say no. No.
BY MR. IRELAND:
Q. Thank you.
I'll try to save a little time. Do you remember the testimony about the half-time shortages?
A. Yes.
Q. Okay.
There was about
A. And I said - okay. Go ahead.
Q. There were about four of those, right?
A. Yes.
Q. Okay.
And you discovered --
MR. IRELAND: Or strike that.
BY MR. IRELAND:
Q. You agree that payment of overtime is due after 40 hours in a single week and is unrelated to the two-week total, correct?
A. Well, each week would encompass 40 hours, and then after that would be overtime.
Q. Okay.
And there were four instances in 2016 where you didn't pay overtime rate for overtime hours in a single week, correct?
MR. SMITH: Objection. Calls for a legal conclusion. That's why we're here.
THE COURT: It does not.
Overruled.
BY MR. IRELAND:
Q. I can show them to you, but you already said you heard testimony about it. Trying to save time.
A. If the payroll company didn't put in overtime when I called it in -- I would call in hours and they would make the checks. That's why I use a professional payroll company.
Q. Okay.
So, it's the payroll company's fault?
A. Don't know whose fault it is.
Q. So, you're speculating it's the payroll company's fault?
MR. SMITH: Objection.
BY THE WITNESS:
A. Well, if I see the sheet, I can look at it and decide what was called in based on what.
BY MR. IRELAND:
Q. A-1294. Does this refresh your memory?
A. No, because I did not get this sheet. This is not the sheet I would get from Rose on payroll day.
Q. But this is what she would cut and paste from and print and hand to you, right?
A. Potentially.
Q. Potentially.
How else -- we saw that she texted you, which you said she did?
A. She constantly cut things out and didn't give them to me that were noted on here.
Q. Okay.
So, she wouldn't have given you the totals?
A. I don't have a record of seeing it, but either she told me or gave it to me. But I don't have that record in front of me.
Q. Okay.
And we don't have the big timesheets for 2016?
A. I could have called in 80.75 hours and they elected 70.75 hours as overtime.
Q. So, you think they paid overtime on that?
A. I would think if I gave someone 80.75 hours, they would consider .75 overtime as a payroll company.
Q. And if you called in 90 hours, they would do the same? As a payroll company, they would pay properly?
A. They should.
Q. So, it's their job to figure it out?
A. Yes. That's what I pay them for.
Q. Exhibit C-586.
You agree 90 hours is found on this check from 12-9, correct?
A. Correct.
Q. There's no possible way for Rose to work under 40 if you're paying over 40, correct, per week?
A. This is when she just started. I'm trying to recall the check.
Q. Mr. Henning, I'm asking you simply, is there overtime paid on 90 hours?
A. No.
MR. SMITH: I'm sorry, can you give me that check number again, John. The one you
MR. IRELAND: C-586.
MR. SMITH: Thank you.
BY MR. IRELAND:
Q. A-1295. This is the relative period for the 90 hours.
And some of that isn't overtime; would you agree?
The holiday is not paid as overtime rate, correct?
A. It's possibly why it's not overtime.
Q. Okay.
But you agree the first week is 44 hours, right?
A. What it says, yes.
Q. All right.
So, four hours of overtime. Half-time is due for that week, correct?
A. I believe so, yeah.
Q. Okay.
And when did you repay that four hours of half-time to Rosemarie Wiseman while employed -- while she was employed?
A. Don't recall.
Q. During this litigation, when have you paid Rosemarie
Wiseman the half-time that she was not paid
A. It's the same question over and over.
Q. -- at the proper rate of
A. We're not saving time here
MR. SMITH: Hold on.
BY THE WITNESS:
A. -- you asking
MR. SMITH: Objection.
THE COURT: I need a sidebar, please.
(Proceedings had at sidebar:)
THE COURT: Mr. Smith, it is entirely appropriate for Mr. Ireland to ask if these payments have ever been paid. You may argue to the jury that those payments are not overtime, didn't exist, shouldn't be paid. That's an argument you can make. But it's appropriate for him to establish that up to and including today they have not been paid. It does not call for a legal conclusion. It does not establish in any way, shape or form that there's an obligation to pay. It's simply a fact. So, those objections that you're continuing to raise are all going to be overruled.
MR. SMITH: So, I respectfully disagree. The questions that were asked of this witness is: Did you pay the amount that you owed?
THE COURT: I actually heard the question as have you paid this amount, and I've heard that a number of times.
MR. SMITH: I would be okay with, have you paid any overtime for these periods? I don't have a problem with that. But what I do have a problem with is, did you pay the amount that you owed? That's why we're here.
THE COURT: Well, again, you can argue and ask questions establishing that he doesn't think he owed it. But I actually thought the questions were pretty factual. You know, if you want to
Mr. Ireland, if you want to in abundance of caution ask the question has he paid any -- as a fact, I guess you can.
But I also want you to know that your client is not answering questions asked. He is testifying essentially when there's no question pending. And this is happening repeatedly and repeatedly. And I don't like as a judge having to reprimand your client over and over and over again.
MR. SMITH: I understand.
THE COURT: So, it might be helpful for you to take your client aside and tell him to answer the questions
MR. SMITH: If you'd like
THE COURT: -- so I don't have to keep doing it.
MR. SMITH: If you would like to take a short break, I can do that.
THE COURT: At the break, which we will take at 11:15, I suggest you do that, and only that since he's on direct examination.
MR. SMITH: Yes, your Honor.
THE COURT: Thank you.
(Proceedings had in open court:)
BY MR. IRELAND:
Q. The week prior, there's 44.5. Would you agree with me without looking at the check that you didn't pay that at an overtime rate? Be happy to show you the check.
A. You said without looking at the check. How would I know if I paid it or not without looking at it?
Q. Because we've gone through this multiple times.
MR. SMITH: Objection. Argumentative.
THE COURT: Why don't you show him the check, Mr.
Ireland, again.
MR. IRELAND: Yes, your Honor.
BY MR. IRELAND:
Q. So, the date that Ms. Wiseman put down is 11-25 and the amount is 79 hours, correct, sir?
A. Correct.
Q. And Exhibit C-588, 11-28, which is approximately the same range of dates, 79 hours, correct?
A. Correct.
Q. And you agree with me that there's no overtime paid despite the fact that there is 4.5 hours of overtime that was due for that week?
A. Correct.
Q. Okay.
When have you made a payment to Rosemarie Wiseman to make up that half-time shortage during her employment?
A. I have no recollection one way or the other.
Q. During this litigation, when did you make the half-time payment that we allege is due during this litigation?
A. There has been none during this litigation.
Q. I'm sorry, repeat that.
A. No, there has not been a check made to you for that hours.
Q. Then we have two other instances. Do you need to see the checks or can you take my word that those were paid at halftime?
A. No, I want to see the checks.
MR. IRELAND: Rosa, could you separate them.
BY MR. IRELAND:
Q. Mr. Henning, are you familiar with this document?
MR. SMITH: Wait. What is the exhibit number?
MR. IRELAND: 22. It's not in evidence.
MR. SMITH: I thought that was
MR. IRELAND: 23 was withdrawn -- no. I don't know if it was. This one was not brought up prior.
THE COURT: That's true. Right.
MR. IRELAND: Yes.
THE COURT: So, you're going to attempt to admit it now?
MR. IRELAND: That's correct, your Honor. Trying to lay the foundation.
THE COURT: Okay. Go ahead.
MR. IRELAND: Do you need to see it?
THE COURT: Do you have it, Mr. Smith?
MR. SMITH: Yeah. I need to know which
MR. IRELAND: You have it as 23.
MR. SMITH: You have it as?
MR. IRELAND: 22.
MR. SMITH: 22.
BY MR. IRELAND:
Q. Mr. Henning, are you familiar with this document?
A. Yes.
Q. Okay.
And is this a document of the payroll journal for Santiva for at least what's on the page?
A. Yes.
Q. Okay.
MR. IRELAND: Move to admit, your Honor.
THE COURT: Any objection?
MR. SMITH: One moment, Judge. I thought that's the one you withdrew.
MR. IRELAND: No, sir.
THE COURT: It doesn't matter whether he withdrew it or not. Do you have an objection to it?
MR. SMITH: No objection.
THE COURT: Thank you. It's admitted.
(Exhibit received.)
MR. IRELAND: Can it be published, your Honor?
THE COURT: Yes, you may.
BY MR. IRELAND:
Q. And can you tell the jury, again, what this document is?
A. It's a payroll journal from Paychex for Santiva.
Q. Whose name have I just highlighted?
A. Hard to read, but it says Wiseman, Rosemarie C.
Q. And it is hard to read, I will agree.
Can you tell me what that date is, sir?
A. 10-17-16.
Q. Okay.
And can you tell me how many hours are paid?
A. It looks like 80.75.
Q. Okay.
And what is the rate of pay that they're paid at?
A. $20.
Q. Okay.
And that is the straight-time wages -- wage rate of Rosemarie Wiseman at this time; would you agree?
A. Correct.
Q. There is no overtime payment in that journal, correct?
A. Not seeing it.
Q. Okay.
And 80.75, at least .75 should be overtime; would you agree?
A. I agree.
Q. Back to Exhibit A-1294. 80.75 is found on this entry in the Excel spreadsheet; would you agree?
A. Yes.
Q. And 1.75 is overtime, correct?
A. Correct.
Q. So, that 1.75 was not paid at an overtime rate according to Exhibit 22, correct?
A. Correct.
Q. When during this litigation
MR. IRELAND: Strike that.
BY MR. IRELAND:
Q. When during Rosemarie Wiseman's employment did you correct that error?
A. Have no recollection.
Q. So, you don't remember if you repaid that or not?
A. No.
Q. When during this litigation was the half-time for that pay period paid to Mrs. Wiseman?
A. Was not.
Q. You agree that Santiva vacation policy was after a year of full-time employment, that the full-time employee would receive a vacation of five days, eight hours per day, correct?
A. After continual 40-hour-plus weeks, yes.
Q. Okay.
And how did you communicate that policy to Mrs. Wiseman?
A. It was probably never even discussed.
Q. Never discussed?
A. Probably not. It was just maybe assumed once you're full-time, you get a week.
Q. Okay.
A. And we could have talked about it, but that wasn't the first thing off her mind when she came and asked me for a job.
Q. Okay.
But you don't have an independent recollection of having a conversation with Mrs. Wiseman about vacation; is that correct?
A. Not after five years, four years.
Q. And it's been five years, six years, seven years for some of this stuff?
A. Right.
Q. You agree?
A. Right.
Q. Memories fade?
A. I'm pretty good.
Q. I'm not asking if you're pretty good. I'm asking if as humans memories fade.
MR. SMITH: Objection.
THE COURT: Overruled.
BY THE WITNESS:
A. Yes, memories can fade or get better.
BY MR. IRELAND:
Q. Memories can get better?
A. Yes.
Q. Okay. I want some of that. I'll go to Santiva as soon as we're done.
A. Mine has eight-and-a-half years, believe me.
Q. You agree that Mrs. Wiseman did take a vacation in September of 2017, took five days and got paid eight hours per vacation day, correct?
A. That was after she -- that would have been the anniversary of working full-time for a year, yes.
Q. So, now you remember that there was some sort of memorial
A. Well, I remember she had a vacation and it was around that time.
Q. Okay.
So, did you have a conversation with her where you said to her, oh, you've now worked full-time for a year, you get a vacation?
A. I think she probably told me.
Q. She told you?
A. Potentially said, hey, I've been here a year, I get a vacation.
Q. Okay.
And is it possible also she told you, I've been here a year in January of 2017, I get a vacation and I got another one in January of 2018?
A. No.
Q. That's not possible?
A. Not that I can recall.
Q. Do you agree that she scheduled a vacation in January of 2018?
A. I don't remember her scheduling a vacation.
Q. She never talked to you about a vacation in January of 2018?
A. Well, she just got one in September of 2017, correct? Is that what you were saying?
Q. I'm asking
A. Sorry.
Q. I'm asking if you recall her having a conversation with you saying, January of 2018, I've now been working full-time for two years, so I get my second vacation?
A. No.
Q. You don't remember that?
A. No.
Q. Okay.
MR. IRELAND: Exhibit B-16, your Honor.
BY MR. IRELAND:
Q. You agree that you submitted this timesheet as her employment ended, correct?
A. Correct.
Q. And she wrote this one week vacation owed, right?
A. The timesheet and one week's vacation owed, which she believed she was owed.
Q. Okay.
But she submitted this to you, correct?
A. She wrote this on the way out the door. Yes.
Q. She submitted this to you. Okay.
And you didn't pay it?
A. No, because it wasn't questioned.
Q. I didn't ask -- I didn't ask anything further.
A. No.
Q. Okay.
A. No.
Q. Thank you.
You didn't pay it because you believed that she wasn't working full-time for a full year, correct?
A. No. Her next yearly date would have been September of 2018.
Q. Okay.
And there's no document that demonstrates that. It's just your statement or your belief that you have to work full-time for a full year and that was it?
A. I would think that's common practice.
Q. I didn't ask if it was common practice. I asked if that was your policy; and, if so, how it was communicated to the Wi-
A. Yes, it was my policy.
Q. And how did you communicate it to --
A. Verbally.
Q. Verbally?
A. I'm sure.
Q. I thought you said you didn't have a conversation?
A. Don't know what we had conversation at the beginning about vacation pay. If she came up and said, I've been here a year, we obviously had a vacation pay conversation at some point.
Q. Turning to work from home. You agree that the plaintiff worked from home sometimes?
A. Sometimes.
Q. Okay.
You described it as very seldom, correct?
A. It was never required. Okay.
Q. Mr. Henning
A. Very -- very seldom. What I got from the timesheet is what I believe she was really working from home.
Okay. Sorry. What do you want me to say?
Q. I want you to answer my question, sir, and not add anything.
MR. SMITH: Objection. Asked and answered.
THE COURT: Overruled.
BY MR. IRELAND:
Q. My question, sir, was: Did you previously testify that she worked from home very seldom?
A. Yes.
Q. Okay.
You agree that the plaintiff responded to customer inquiries, questions from Amazon and your other Web sites, correct? That was a job duty?
A. That was part of her job description.
Q. Okay.
And she did that -- the -- Amazon had ratings based upon the responsiveness of the salespeople, correct?
A. We have no salespeople.
Q. I misspoke. Let me correct my bad question.
Amazon had a rating system that included a rating for responsiveness to customer questions, inquiries and complaints, correct?
A. Yes.
Q. Okay.
And responding faster gets you a better rating, correct?
A. No.
Q. It doesn't?
A. No, not necessarily.
Q. Okay.
So, Amazon doesn't care how fast the customers are responded to? A. You're just required on a five-day workweek to respond in 24 hours.
Q. Okay.
That's the minimum, right?
A. That's just what's required.
Q. That's what's required?
A. There's no -- there's no benefit to responding in 22 hours. You just have to respond by 24 hours on a workday -business day.
Q. And you've heard the plaintiff testify that she worked from home a lot of time?
A. She testified that.
Q. Okay.
And she presented computer files or copies of files that memorialized the working times on particular documents, right?
MR. SMITH: Objection. That assumes facts in evidence.
THE COURT: Overruled.
BY THE WITNESS:
A. That was after she was no longer employed. BY MR. IRELAND:
Q. The dates on that document were post-employment?
A. Well, we never saw that till after she was employed.
Q. The dates on the document were post-employment?
A. I have no -- those dates were on there and they were computer generated. And they could have been just from an automated download system.
Q. Right.
A. I get -- I get how computers and you can have a computer running and it will just give you a timestamp when people look at it or the product itself is viewed by anybody.
Q. You saw copies of the dates that were during her employment on that document, correct?
A. Yes, there's
Q. Okay.
A. -- dates on it.
Q. All right.
And she's testified that that was work that she did from home on her home computer, correct?
A. A lot of them were just a JPEG - wasn't even a JPEG. It was a thumbnail non-useable image that had no purpose to anything.
Q. How do you know what purpose it had?
A. Because I know what images are and thumbnails and JPEGs, and a thumbnail at times typically is a non-useable document. It's just a screen capture.
Q. While Mrs. Wiseman was working for you, did you see an increase in the Amazon listings?
A. There was an increase in Amazon listings. That's what she got paid to do.
Q. But your claim is that she did it all in the office except for the three hours, I think, or three occasions that you paid work from home on the timesheets?
A. No. She constantly had overtime almost every week. Every week.
Q. I didn't ask about overtime.
A. It was not three times. Look at your records of how many times she got overtime.
Q. You understand, Mr. Wiseman -- excuse me, Mr. Henning, that the overtime and the work from home are not interchangable. There are times that she worked in the office overtime, correct?
A. Yes.
Q. Okay.
And she claims that she worked additional time from home, right?
A. Whatever she turned in to be paid is the time I figured. THE COURT: Again, Mr. Henning, please answer the question that is asked.
BY MR. IRELAND:
Q. You received e-mails, we saw, about 25 of them, from Mrs. Wiseman at all hours; would you agree?
A. Yeah. Didn't understand why, but I did.
Q. And you didn't inquire about what she was doing, correct?
A. I would never see these e-mails till the workdays.
Q. Okay.
But when you see them, you could respond to them, right?
A. Well, yes.
Q. You could have sent a reply saying, are you working?
A. What -- what -- I guess I could have.
Q. But you didn't?
A. Because I don't know what she's doing on a Saturday or Sunday morning e-mailing me something that needed to be done during the workday.
Q. Right.
But you
A. Workweek.
Q. But you didn't inquire as to what she was doing?
A. A lot of times I didn't even know when it was sent.
Q. So, you didn't read anything except
A. I never read the time. I just look at there's an e-mail.
Q. So, you don't care if your employee's working off the clock or not?
A. Well, they shouldn't be working off the clock and they should be working at the office.
Q. But you don't care if they're working off the clock?
A. Well, yes, I do. They shouldn't be working on -- off the clock.
Q. So, why didn't you look at the time to verify if they're indeed working off the clock or not?
A. Well, because I figured they're doing it during working hours like everybody else?
Q. But you didn't look at the time?
A. I get thousands of e-mails, probably like you. I don't check every time they come in. I just look at an e-mail and respond to it.
Q. At this time, you had one employee, also Cary, and a couple of 1099s; is that correct?
A. Yeah, but I -- these - the e-mails I get from this, I have hundreds of e-mails, potentially, a day from everybody.
Q. Mr. Henning, I didn't ask you
THE COURT: The question was how many employees and 1099s did you have.
BY THE WITNESS:
A. You would know that. Probably a couple employees and couple 1099s.
BY MR. IRELAND:
Q. You had a couple employees?
A. I -- at what point in time?
Q. In 2016 and 2017, why we're here. How many employees did you have?
A. Probably had Rose.
Q. Okay.
So, that's one?
A. Right.
Q. Did Cary Wiseman ever send you an e-mail that you're aware of?
A. Not that I'm aware of.
Q. Okay.
So, you had one employee sending you e-mails, correct?
A. Employee.
Q. Okay.
A. To the e-mail that I use for countless other
Q. Right.
And you have this no overtime policy and you claim that she has this problem working unauthorized overtime and you don't pay attention to the time it's being sent?
A. I didn't want overtime
MR. SMITH: Hold on.
Objection. Argumentative.
THE COURT: Well, I would like to hear the question before Mr. Henning starts to answer it. I don't even think you got the question completely out.
MR. IRELAND: I thought I got it.
THE COURT: Could you read it, please, then, Joe.
I thought the witness was talking over you.
(Record read.)
THE COURT: Overruled.
MR. IRELAND: Was there an answer?
THE COURT: I don't think so.
BY MR. IRELAND:
Q. Can you please answer the question, sir?
A. Is it a "Yes" or "No" or can I talk?
THE COURT: You heard the question. Please answer the question.
BY MR. IRELAND:
Q. Please answer the question.
A. Ask it again.
Q. You have this alleged no overtime policy. You have testified that Rosemarie Wiseman has this problem with working unauthorized overtime, and you're saying that you just don't look at the send time ever that Rosemarie Wiseman sent you these e-mails, correct?
A. It's -- it's not common. It's common for me to look at the e-mail, not the time sent.
Q. Okay.
So, you didn't use that piece of information to enforce or to explore your alleged overtime policy, correct? A. If someone wants to e-mail, I can't stop them.
Q. And you agree that if somebody's e-mailing you -- not somebody, we're talking about Rosemarie Wiseman. If Rosemarie Wiseman is e-mailing you, she's e-mailing you pursuant to her work duties, correct?
A. Yes. And she could be e-mailing during work time.
Q. Right.
And if you looked at the time, you could see if it was the work time or if it was 2:30 in the morning a.m., right?
A. And who is up working at 2:30 in the morning? I don't get it.
Q. I didn't ask that, sir.
If you looked at the time, you could see it was sent at 2:30 in the morning?
A. If I looked at the time, yes.
Q. Right.
And you just didn't -- you didn't?
A. It's not common practice the amount of e-mails I get.
Q. You didn't, in regards to Rosemarie Wiseman, look at the time and verify if she was working off the clock or not, correct?
MR. SMITH: Your Honor, it's been asked and answered
THE COURT: No, it has
MR. SMITH: -- three times.
THE COURT: It has not.
Overruled.
BY THE WITNESS:
A. I don't recall checking an e-mail and seeing it was at 2:15 in the morning, 2:17.
MR. IRELAND: No further questions, your Honor.
THE COURT: We'll take our morning break, guys. Let's come back -- it's almost 20 -- so, come back at 20 of 12:00. We'll take our lunch break at 12:30 again, okay?
Don't talk about the case.
(Jury out.)
THE COURT: Mr. Henning, I really don't like having to continually tell you to answer the question or to not interrupt Mr. Ireland or to talk when there's no question pending in front of the jury, okay? So, I'm going to tell you now, please stop that. Listen to the question that's asked. Answer that question. Believe me, Mr. Smith will ask lots of questions designed to get out whatever it is you're trying to say.
THE WITNESS: Sorry.
THE COURT: But for now, you're on cross-examination.
THE WITNESS: Okay.
THE COURT: And I've said this to you now I think five or six times and you're continuing to do it. So, please stop, okay? I don't want to have to reprimand you in front
THE WITNESS: I appreciate it. It's just my nature
THE COURT: You just did it again.
THE WITNESS: I'm sorry.
THE COURT: Just let me finish.
Please don't do it. I don't want to have to do that in front of the jury. Okay? But there are rules and my job is to enforce the rules. Okay? Got it?
THE WITNESS: I think it's my ADD. Sorry.
THE COURT: Well, it may be. I don't know. But, again, I have to enforce the rules and you need to follow them. So, hopefully, we'll be done with that.
THE WITNESS: Thank you.
MR. SMITH: So, just so I'm clear, you're done.
MR. IRELAND: With Mr. Henning, yes. I mean, obviously -THE COURT: You'll have redirect.
MR. IRELAND: I'm at an hour-nine, your Honor.
THE COURT: Yeah, I know. You did great time-wise.
I make no comment on anything else.
MR. IRELAND: Mr. Wiseman was four minutes.
MR. SMITH: I'm going to take John's time, just so you know.
THE COURT: No, you're not. You're going to leave time for the jury instruction conference.
Thank you.
(Brief recess.)
MR. IRELAND: Your Honor, I just handed you three plaintiff-proposed additions to the jury instructions, three of which were pursuant to the plaintiff's submitted but
disputed jury instructions. I've given counsel for the defendant a copy. They previously objected. I'm assuming they're going to do it again.
The last one is in regards to the issue of the overpayment/underpayment issue and whether or not the credits from one pay period can be applied to another. I provided a case out of Springfield, Seventh Circuit case, regarding this issue. I've highlighted what I believe is the pertinent section, which says that you cannot get a credit for overpayments versus underpayments.
THE COURT: Is that instruction among these three?
MR. IRELAND: It is not an instruction in there because I was -- it's not an instruction that I had submitted previously.
THE COURT: You need to submit it now. You need to give it to me before the jury instruction conference if you want it
MR. IRELAND: Okay, your Honor.
THE COURT: -- to be considered. I mean, that's your job.
MR. IRELAND: Yes, your Honor. I'll draft it up while we are working.
THE COURT: You can do it over the lunch hour if you'd like.
MR. IRELAND: Yes. On lunch, I will do so, your Honor. Thank you.
(Brief pause.)
THE COURT: We got another note.
This is a very curious jury. I've never had this happen.
The note says: "What decides if an employee had the status of either exempt or non-exempt from overtime rule?"
All employees are subject. They're going to be instructed she was subject to the overtime rule. I think -- I mean, right?
MR. IRELAND: Right. She's
THE COURT: There's not a choice here between exempt and non-exempt.
MR. IRELAND: She's classified as hourly.
THE COURT: Right.
MR. IRELAND: She was paid as hourly.
THE COURT: Right, right.
MR. SMITH: Well, maybe the question is in regards to Mr. Henning, why didn't he get overtime.
THE COURT: I'm sorry?
MR. SMITH: He's obviously an exempt employee.
THE COURT: Well, I don't think that's even come up, actually. So, I very much doubt that's what they're talking about.
"What decides if an employee has the status of either exempt or non-exempt from overtime rule?"
I think this is pretty clearly directed at Mrs. Wiseman. And I think what I should say is, you will get instructions about what needs to be proved under the FLSA at the end of the case. Until such time, hang tight.
MR. SMITH: Fine with me.
(Jury in.)
THE COURT: Have a seat.
I received another note from a juror, and what I'm going to say in response to that note is you will receive instructions as to what the plaintiff needs to prove in this case under the FLSA to be entitled to overtime hours.
And I'm going to further state that please don't discuss the case among yourselves or, you know, begin any kind of deliberation until -- unless and until you hear my instructions.
And I'm going to further say that I strongly discourage any further notes about what may or may not be the law in this case because my job is to give you the law at the end of the case. And I will do that. Until that time, I think -- we'll hear the evidence. Pay attention to the evidence. We'll have the closing arguments. You'll get that law. Okay? Thanks.
Okay. Let's go.
MR. SMITH: Thank you, your Honor.
CROSS-EXAMINATION
BY MR. SMITH:
Q. Good morning, Scott.
A. Zane.
Q. So, I would like to ask some background questions. If you could tell the ladies and gentlemen of the jury a little bit about your background, your education and your experience.
THE COURT: Is there a question? Would you ask questions, please. Ask a question.
BY MR. SMITH:
Q. What's your highest level of education?
A. College.
Q. And what is your experience in terms of jobs? What did you do before Santiva?
A. I was in the
Q. You have to speak up into the speaker.
A. I've been involved with the graphic arts business. Everything from printing, design, photography. I was in sales and owner. Started at 25 years old my own company and pretty much always worked for myself.
Later on, with the graphic arts demise and the printing demise, everything going to the Internet, I got more involved with online businesses and things like that. But I always was involved with the food business, including my customers, World's Finest Chocolate, people like that. So, I did photography, food styling. And I also knew a fair amount about all the graphics, but I wasn't an operator. I wasn't on the computers.
But that led me into the business I'm doing now because my father, when he retired at my age, started a company which is a family company of my brother's. And they're into spices, gourmet dessert business, things like that. When I started over again because of the graphic arts business changing, I used the information that I had of packaging, printing, different applications in computer graphics. And, then, along with my father being -- starting a food company, I decided to get into something that was healthy and good for people.
So, I got -- it kind of found me, but I create, market, manufacture non-metabolizing sweeteners, which are for diabetics, keto diet, cancer patients. And it was something that I basically pioneered the product that's now very large, but I was told when I first found it --Q. Hold on. Let me ask another question.
A. Okay.
Q. So, in Santiva, the company that's at issue in this case, how would you describe that company? Is it a brick and mortar? Is it an Internet company? How would you describe it?
A. It's basically all Internet. There's some business to business. Majority of it is business to consumer where we package, manufacture, label. And our main supplier because of, you know -- or distributor is Amazon, just because that's just where everything's at.
Q. So, when you say you distribute to Amazon, tell the ladies and gentlemen of the jury about that process. How does your product enter the public domain for sale.
A. Well, first of all, we'll take a product and we can create a listing fairly fast, if we want to make a -- you know, duplicate products.
But we'll take a product. We take an image. We launch it. We put some description. And that can take anywhere from 10 to 25 minutes longer. Depends on how much product and information you want to put on it. Most of it's readily available on the Internet.
And, so, you could launch a product. Once you do, we can internally sell where we actually get orders, let's say from Amazon, Shopify, whatever. We've added some other stores now. But we get an order. We can fulfill it right from our place where we ship it out with the Post Office, UPS, or whatever. Or we send to Amazon pallets now of product which goes to all their distribution centers. And, then, that's how you get your Amazon package in one day
Q. Let's talk about -- let's talk about 2016 and 2017 and 2018, okay?
A. Okay.
Q. So, in 2016, describe your facility. Describe what it looked like.
A. Well, it's a small facility. We've got some office space up in front. We have a secondary -- you know, we have a kitchen area, all that. But we have a room that we use just for filling, which is food grade. So, we do powders or liquids in that. Then we label, seal packaging, whatever we need to do. Then we actually will pouch product if we've, you know, blended it or filled -- liquid filled bottles. And, then, we pack it up.
And, again, we have inventory. We either send out when we have an order to consumers direct. Right now that's only about maybe 20 percent of our business. Most of it goes straight out on pallets.
Q. Okay.
So, I want you to focus on 2016, 2017, 2018. I'm going to ask you what you do now in a moment. But in 2016 through 2018, if you were getting ready for a product to sell, that was done on the premises, correct?
A. Yes.
Q. All right.
So, did you have bulk products like you would buy a gigantic box of something and then reduce that to saleable units?
A. Yes. We bring in, you know, 50-pound bags of sugar -- or modified sugar we use -- and we'll bring in 3,000-pound totes of liquid.
Q. And, then, you would then package that to individual units for sale?
A. Correct.
Q. Okay.
And the business that you had in 2016 through 2018, was it a business that had more than three employees at any one time?
A. I think we were up to four at one time. But not including myself.
Q. Okay.
So, let's not include yourself. So, you had two to three employees; is that your testimony?
A. Yes.
Q. Okay.
And were they sometimes part-time and sometimes full-time?
A. Yes.
Q. So, in 2016, how did you come to hire Rose -- I'm sorry, how did you come to hire Ms. Wiseman?
A. I ran into her originally when she was working at a company that I met at a food show and I was selling their products. Business to business somewhat, some grocery shows, as well as trying it direct to consumer. I first worked with the owners of the company and one of their office managers. Later on, Rose was there as, I guess, the new office manager. And, then, that's where I met her. And, then, Cary was there also working there somehow in the warehouse or manufacturing.
So, I was at my office one day and got a call because we -- she had my number because we communicated. She asked if she could come over and talk to me because her job ended at the other company and wanted to know if she could work for me part-time.
Q. And did you agree to hire her?
A. Yeah. We talked and I said, I could give you some part-time hours and see how things go.
Q. Okay.
And that was in November of '16, correct?
A. '15.
Q. I'm sorry, November of '15, correct?
A. Yeah, approximately November '15.
Q. Okay.
So, on November of '15, she started out part-time, and then at some point she moved to full-time; is that right? A. Yeah. A lot of her hours - she first started, I believe, at $18 an hour, moved her up to 20. But I don't believe until September of '16 is where she really started getting full-time hours of, you know, like 40 hours a week.
Q. On a regular basis?
A. On a regular basis, yes.
Q. And, actually, from September of '16 until her employment ended, for the most part, she would work approximately 40 hours per week?
A. Correct.
Q. Now, did you have a process in place for determining the payroll or is this a process that Ms. Wiseman developed?
A. The process was already in place of a payroll company.
Q. Okay.
And the process of determining what an individual employee's paycheck was, how did you determine that before Ms. Wiseman came onboard? How did you make that decision? A. People would write it down on paper. They would keep their own records. Obviously, small company, that's where you really trust and try to have people that, you know, work well, and if they said they worked hours, you believed them because they were there and you worked with them. Or there was times that -- just saying back then, too, and always, I was always pretty flexible of trying to help people with their situations and, you know, not saying, we work 9:00 to 5:00 around here. If someone needed to come in
MR. IRELAND: Objection.
THE COURT: Objection sustained. He's gone way beyond the question. Let's try to do questions and answers.
BY MR. SMITH:
Q. So, did you have a set time or set number of hours people had to be in there at 8:30 to 5:30 or anything like that?
A. No.
Q. Did you accommodate people as they needed in terms of when they could start and when they could leave?
A. Absolutely.
Q. So, when Ms. Wiseman started, did she start to provide you with some kind of a piece of paper or documentation that showed her payroll?
A. At the very beginning, I'm not sure if she handwrote it out, because that's how our people did it and would just turn it in to me. I believe that's probably how it started. And, then, she started giving me things done in a, you know, Excel worksheet. But I think that was pretty right off the bat. Right away she started going ahead and just doing it on the computer.
Q. Okay.
So, let's talk about that process. We looked at pages and pages and pages of these timesheets that Ms. Wiseman gave you when it was time for payroll. Remember? A. Correct.
Q. You recall seeing those, right?
A. Yes.
Q. There's also been this spreadsheet that's been going round and round. And the spreadsheet was a document that you never saw until her employment ended, correct?
A. Correct.
Q. And the spreadsheet is Group Exhibit A. We've looked at this. Page 1289 through 1302 -- I'm sorry, 1303.
So, all these pages of this spreadsheet, all these years of 2015 through 2018, that's not something that you saw until after Rose left your employment, correct?
A. Correct.
MR. IRELAND: Asked and answered.
THE COURT: I'll sustain the objection to form.
You're leading the witness.
MR. SMITH: I'm sorry, Judge, I didn't hear.
THE COURT: You're leading the witness. Ask open-ended questions, please.
MR. SMITH: Okay.
BY MR. SMITH:
Q. So
THE COURT: It's direct examination.
BY MR. SMITH:
Q. -- is it true that you've never seen this document before Rose ended her employment?
A. No. It was only found after I met Sheila and we had the demands for pay that she said, look
MR. IRELAND: Objection.
BY THE WITNESS:
A. -- through the computer and try to find any records.
THE COURT: Sustained.
BY MR. SMITH:
Q. So, how did you come upon this record if you never saw it before?
A. I went to the computer that Rose was working on -- doing her graphics work at my place, as well as listing IDs, checking e-mails -- and I saw a folder on it and I believe the folder said Rose info or maybe even timesheets. Something like that. So, I clicked on it, and I was amazed I found where she was getting all the clips that she gave me from.
Q. When Rose was working for you, did you make it a habit of going through and looking through her work computer?
MR. IRELAND: Objection.
BY THE WITNESS:
A. No.
MR. IRELAND: Leading.
THE COURT: Overruled.
BY THE WITNESS:
A. I would have to use it at times because I also would access files, images. My background allowed me to do retouch and color correction, cropping of images for -- so, I would go on the computer.
BY MR. SMITH:
Q. For what purpose?
A. But I never really
Q. Hold on.
For what purpose?
A. Just to do work of everything from listings, photos, photography work, things like that.
Q. Did you ever go on Ms. Wiseman's computer in an effort to look at payroll records or spreadsheets like this for payroll? A. No.
Q. Did you ever have a reason to question or inquire as to whether or not Ms. Wiseman's pay was correct or incorrect while she worked for you?
A. No, because I trusted people to hand me what was correct. Q. All right.
Now, there's been some inquiry here -- I'm sorry, let me rephrase that question. There has been a suggestion that you somehow either intentionally or purposely avoided the fact that Ms. Wiseman says she was working at home and now she's claiming that she wasn't paid. Did you ever make a conscious decision not to pay her?
A. No.
Q. Did you always pay her based upon the timesheets that she submitted for time that she claimed?
A. Yes.
MR. IRELAND: Leading.
THE COURT: I'm sorry?
MR. IRELAND: Leading.
THE COURT: Overruled.
BY MR. SMITH:
Q. Did you -- are you a perfect person?
A. No. I try. I try.
Q. Right.
When you did the payroll and prepared the payroll and you submitted the payroll, as a result of this litigation did you come to realize that you made some mistakes?
A. Yes.
Q. Did you come to realize, in your review of the documents, that sometimes those mistakes resulted in Ms. Wiseman being paid too much and sometimes not enough?
A. Correct.
Q. Now, there has been e-mails and communications where
Ms. Wiseman says in her e-mail I've been working hours and hours at home; I've done all kinds of work at home; I'm doing spices and Amazon and -- I'm paraphrasing. But there's been a lot of communications about her work from home.
You saw those, right?
A. Yes.
Q. Did Ms. Wiseman ever, ever make a demand to you for payment for that work at home?
A. No, never.
Q. Did she ever submit a request for overtime for any time that she says she worked from home other than what's noted on her timesheets?
A. No, never.
Q. Now, counsel asked you if you had an agreement of this two-for-one split. In other words, if she worked 6 hours at home, you agreed to pay her 3 or if she worked 12 hours, you agreed to pay her 6. Was there any kind of an agreement between you and Ms. Wiseman about that?
A. Wasn't really agreement. She mentioned something at one time and I just said, I want to pay you for what you do, and I paid her based on the hours she turned in.
Q. Okay.
So, the agreement that you had with Ms. Wiseman was that if she submitted the hours that she worked or submitted the overtime hours that she worked, that's what you paid her? A. Yes.
Q. Now, I want to go through a couple things here. There is a -- there's been testimony that these timesheets, these summaries of hours worked, that they were folded and put on your desk, correct?
A. Yeah. Typically just laid on my desk, not folded.
Q. So, because -- you had a payroll service, right?
A. Yes.
Q. Did you make the computation of what part of the salary was straight time and what part of the salary was overtime or did you leave that to the payroll service?
A. I left that to the payroll service.
Q. So, when you called the payroll service as an example, did you tell the payroll service, Ms. Wiseman worked 108 hours, I need a paycheck?
A. Correct.
Q. You didn't break it down with the payroll service and say, well, 108 hours, I know that that's 80 straight time and the rest of it's overtime and you need to compute that at one-and-a-half times per hour. You didn't do any of that?
A. No.
Q. You let the payroll service compute not only the number of hours that were overtime, but how much to pay per hour for the overtime?
A. Correct.
Q. And that was laid out in the checks. We've looked at dozens and dozens of checks that lays out the straight time and lays out the overtime, correct?
A. Correct.
Q. Did you ever question Ms. Wiseman's submission in terms of whether her math was right or wrong?
A. I thought that was all done in the spreadsheet where it automatically totalled it. But, no, I did not question.
Q. Okay.
So, did you make a determination that if she submitted whatever hours she submitted, that those were the hours that she was claiming was for overtime?
A. Yes.
Q. So, counsel asked you a couple questions here. Let's take a look at that. So, the first one is Timesheet 31. And counsel pointed out and said, well, hold on, this was for 91.5 hours right here (indicating). And the corresponding check, which is 552, is only for 85 hours.
Do you see that?
A. Uh-huh, yes.
Q. You see that right there, 85?
A. Yes.
Q. So, in fact, if we look at the timesheet again, the timesheet math is wrong. It's 45.50 and 46 is 91.50. That's right. But in real calculation, the math was 39.5 and 39.75, for a total of 79.25 hours, correct?
A. Correct.
Q. So, when you paid Ms. Wiseman for that paycheck, you overpaid her by over five hours?
A. Correct.
Q. You didn't underpay her. You overpaid her, correct?
A. Correct.
Q. Let's take another one that was referred to by counsel.
This one is the Document No. 41. This is the pay - I'm sorry, this is the timesheet that was submitted by Ms. Wiseman in the way that we've talked about, right? She would fold it, put it on your desk and you would call it in?
A. Correct.
Q. And the number you called in was 83.25, right?
A. Correct.
Q. You didn't ask about the plus 3. You didn't inquire about the 6 hours because that wasn't in the 83.25, right?
A. Correct.
Q. Did Ms. Wiseman ever give you or do you recall having a conversation of saying, now, listen, Scott, I'm asking for 83.25, but I'm really asking for more? Do you remember any kind of conversation about that?
A. No.
Q. Is 83.25 the number you called in to the payroll?
A. Should have been.
Q. Is that the check that was issued?
A. It should have -- I'm not seeing the check, but
Q. Well, this one we have it -- we looked at the payroll
A. Okay.
Q. -- journal.
A. Well, I'm assuming if I called in the 83.25, that's what they made it out for.
Q. All right. And counsel also showed you Document 16. Let me make this bigger here.
So, it looks like it says "last pay" at the top right. Is that what it says?
A. Right.
Q. And this is the time that Rose - I'm sorry, that Ms. Wiseman was leaving?
A. Correct.
Q. Do you have a date of her last day of employment?
A. I believe it was January 12th, Friday.
Q. January 12th?
A. I don't have that
Q. I'm sorry?
A. Well, according to -- I'm trying to remember which date was her last day. But this was what -- oh, I'm sorry. I'm sorry. I'm seeing these other dates here. I'm trying to remember if it was January 12th.
Q. Okay.
So, January 12th is her last day. That would have been January 12th of 2018?
A. Correct.
Q. Right?
And we know that -- we know you were referring to her last day because it says last days, right?
A. Correct, yes.
Q. So, it says on the bottom "plus one week vacation owed." See that?
A. Correct.
Q. You disagreed with that, right?
A. It was in question.
Q. Right.
You wrote that down because you agreed to it or you wrote that down because that was an issue that Ms. Wiseman had brought up to you?
A. This notation on the bottom is from Rosemarie on the way out. This is her last notation saying the only thing she was owed was this payroll and one week's vacation. That was it.
Q. Okay.
Did you have a conversation with her about the issue of her claiming that she was owed a vacation?
A. No. She basically wrote this and said this is what she was owed and left.
Q. And you disagreed with that?
A. Yeah, I -- until I verified if I owed her a week's vacation or not. I didn't know.
Q. Right.
But as we sit here now as of January when she left, she had -- had she worked a full calendar year to earn another vacation?
A. No.
Q. Was her calendar September of one year to September of another year?
A. Yes.
Q. And that was because she started full-time in September of 2016?
A. Correct.
Q. Okay.
So -- and I don't mean to belabor the point, but September '16 to September '17 would have been a one-year anniversary?
A. Correct.
Q. And when did she take her vacation in 2017? Do you recall?
A. September, right about her anniversary date.
Q. Right about her one-year anniversary?
A. Yes.
Q. Okay.
And, then, September '17, she would have earned another vacation in September of 2018? A. Correct.
Q. And she obviously left in January of 2018, right?
A. Correct.
Q. So, did she earn a one-week vacation as of January 12th, her termination date?
A. No.
Q. Her employment end date.
A. No.
Q. And you didn't pay her vacation, right?
A. No.
Q. Correct?
A. Correct.
Q. Now, counsel asked you about Amazon rating, and you heard testimony today that Ms. Wiseman would respond instantaneously to any inquiries or any customer questions or complaints. You heard that testimony?
A. Yes.
MR. IRELAND: Objection. Mischaracterizes the testimony.
THE COURT: Well, the jury can decide what the testimony is at the end of the case. That's their job.
MR. IRELAND: Thank you, your Honor.
BY MR. SMITH:
Q. So, what was the policy at Amazon about responding to customer complaints about your products?
A. Well, you had 24 hours to respond and the response requested was only on business days.
Q. Okay.
So
A. The Monday through Friday.
Q. Right.
So, if you were, for example, sitting down with your family and having Thanksgiving and you had an e-mail from a customer complaining about one of your spices, did Amazon require you to immediately respond to that complaint?
A. No.
Q. What was the Amazon policy in terms of responding to complaints that you received on the weekends?
A. Basically, you would answer the next business day.
Q. Okay.
So, if there was a complaint or an e-mail or something that needed to be done on an Amazon product, as long as you responded within 24 hours on a business day, you complied with the policy; is that right?
A. Correct.
Q. Now, counsel asked you questions about ratings and the suggestion is the quicker you respond, the better your rating; so, if you responded in 30 seconds, that would somehow give you a better rating than if you responded in 24 hours.
Is that true?
A. I don't believe so.
Q. Well, you don't believe so or you know it's not?
A. It -- no. As long as you respond in the certain amount of hours, that's all that's required.
Q. Counsel also suggested to you in his examination that as a result of Ms. Wiseman's work, your business improved, you had more sales, you sold more product.
Is that true?
A. No.
Q. So, there wasn't an increase in the total sales between the time of when she started in 2015 and when she left in 2018?
A. There wasn't much change in sales at all. It was pretty much steady.
Q. Okay.
Did you pay Ms. Wiseman for a full day's work?
A. Well, when she worked and I got the hours, yes, of course. Q. Now, counsel -- there's been an issue in this case of whether or not you made some decision not to pay her overtime. Okay? Did you ever send an e-mail or a text or a document or have a hard piece of paper that said, I don't want you to work overtime unless it's pre-approved, or, I don't want you to work at home? You never said any of that, right?
A. No.
Q. The fact that you told her orally, does that make it any less enforceable, that rule, in your opinion?
A. No.
Q. Did you tell her orally -- did you
-MR. SMITH: Strike that.
BY MR. SMITH:
Q. Did you regularly communicate with Ms. Wiseman orally about what to do with her job and how to do her job?
A. Yes.
Q. And was that the normal type of communication for a small business like yours?
A. Yes.
Q. When you had a dispute -- I'll call it a dispute. When you had a disagreement with Ms. Wiseman about any particular issue -- she says the cinnamon should be on the first shelf and you think it should be on the third shelf, as an example -- how did you resolve those kinds of issues?
A. I tried to be level-headed and just letting people have a say in what they do to -- it just makes people feel like it's more something that they're part of. But I never would argue and say, here and here, because I always like people's ideas because to me, that's how you learn, and someone might have a better idea than you.
Q. Did you ever not -- let me rephrase the question.
Did you trust Ms. Wiseman when she was your employee? A. At first.
Q. Was there a time when you didn't?
MR. IRELAND: Objection.
MR. SMITH: I'll withdraw the question.
MR. IRELAND: Thank you.
BY MR. SMITH:
Q. When she was working for you, did you trust her?
A. Yes.
Q. When she told you something, did you believe it to be true when she was working for you?
A. Yes.
Q. Did you have any reason to believe that anything that she was telling you about her work hours or her claimed payroll was untrue or incorrect?
A. No.
THE COURT: I'm going to stop you there, Mr. Smith, if you don't mind. We're a little bit early, but I have something I have to take care of.
MR. SMITH: Thank you.
THE COURT: We'll reconvene at 1:30.
Don't talk about the case.
(Jury out.) * * * * *
I certify that the foregoing is a correct excerpt from the record of proceedings in the above-entitled matter. Joseph Rickhoff Official Court Reporter
December 6, 2022
Chicago, Illinois November 16, 2022 1:26 o'clock
EXCERPT OF TRIAL PROCEEDINGS BEFORE THE HONORABLE SUSAN E. COX, AND A JURY
APPEARANCES:
For the Plaintiff: THE LAW FIRM OF JOHN C. IRELAND BY: MR. JOHN C. IRELAND 636 Spruce Street South Elgin, Illinois 60177
For the Defendant: ZANE D. SMITH & ASSOCIATES, LTD. BY: MR. ZANE D. SMITH MS. SHEILA A. GENSON 111 W. Washington St., Suite 1750 Chicago, Illinois 60602
Court Reporter: MR. JOSEPH RICKHOFF Official Court Reporter 219 S. Dearborn St., Suite 2128 Chicago, Illinois 60604 (312) 435-5562
PROCEEDINGS RECORDED BY MECHANICAL STENOGRAPHY TRANSCRIPT PRODUCED BY COMPUTER
(Proceedings had in open court:)
THE CLERK: 19 CV 1441, Wiseman vs. Santiva.
MR. SMITH: Your Honor, I have an issue that I'd like to discuss before the jury comes back.
THE COURT: Of course you do.
MR. SMITH: So, the questions that I have made multiple objections to in terms of whether or not Scott has paid the monies back. And if you recall during the examination
THE COURT: I recall. Keep going.
MR. SMITH: We believe that that opens up the issue of whether or not there were attempts to resolve the case
THE COURT: No, it does not.
MR. SMITH: - prior to
THE COURT: It does not.
MR. SMITH: If I can make my record?
THE COURT: Make your record, but I don't believe it's a 408 issue.
MR. SMITH: Okay. So
THE COURT: And please make it fast because I don't want to keep the jury waiting.
MR. SMITH: Absolutely.
So, the issue is, is that if the Court -- if the jury has heard the fact that we've never paid it, we've never made any payments -- counsel went all the way back to the date after she left and through today and all the litigation and we've never paid the overtime.
THE COURT: Right.
MR. SMITH: That suggests that we never wanted to pay the overtime, we never tried to pay the overtime. And that's not true.
THE COURT: It's not a question of whether you could compromise the claim or not. Either it was paid in full or it wasn't. It's a question of fact.
MR. SMITH: Okay. What is in full? Nobody knows.
THE COURT: Well, that's something you argue to the jury. I mean, I assume you're going to argue to the jury that your client doesn't owe anything and never did and, therefore, there was nothing to pay at any point in the case, including in the litigation. And, certainly, I would permit you to argue that based on the evidence.
But we're not going to get into settlement negotiations because, first of all, I think that -- I don't think the door's been opened. And, second of all -especially given what your defense is.
And, second of all, you're injecting into the case something that would be, I think, kind of fraught with peril and would lead to probably having to recall Ms. Wiseman. You know, it's possible then lawyers become witnesses as to what was said or not said. We're just not doing that. So, your objection is overruled.
MR. SMITH: So, the problem is I'm not sure how to approach it because I don't want to violate the Court's
THE COURT: Mr. Smith, I'm going to interrupt you. I think you know how to approach it. You just need to ask your client, do you believe you owe Ms. Wiseman any overtime and is that why you've never paid it? How hard is that?
MR. SMITH: Yes, your Honor. Got it.
THE COURT: You're permitted to ask those questions.
MR. SMITH: Okay.
THE COURT: There have not been objections to your -there have been a couple objections to your leading the witness. There haven't been objections to many of the times you have led. I would just ask you to try to keep your questions -- he's on direct now. I know you're used to cross. He's on direct, so your questions should be not leading. They should be
MR. SMITH: Yes, your Honor.
THE COURT: He's testifying.
I didn't want to say that in front of the jury, though.
MR. SMITH: I appreciate that.
MR. IRELAND: Your Honor, I was somewhat confused because we agreed that he can lead in regards to new areas and -- you know, so --
THE COURT: Well, if you don't care.
MR. SMITH: That's what I thought, too. But that's okay. I'll
THE COURT: Well, isn't he on direct examination?
MR. SMITH: Well
MR. IRELAND: He's
THE COURT: I guess you've muddled it all because of what you guys are -- and I appreciate you're just calling him once. I don't mean muddle in a pejorative way.
Look, Mr. Ireland, if you don't care, I don't care.
Usually when you have a hostile witness on direct examination -- not a hostile witness, a non-hostile witness on direct examination, you don't lead. But if you're okay with it, I'm okay with it.
MR. IRELAND: Well
THE COURT: Your case.
MR. IRELAND: Not
THE COURT: Not mine.
MR. IRELAND: I appreciate that, your Honor.
THE COURT: You did object a couple times. So, I thought maybe you did care. But I guess you don't.
MR. IRELAND: Well, and then I got denied and I thought perhaps
THE COURT: Well, the questions you objected to weren't leading questions.
MR. IRELAND: Okay. I see. I see.
THE COURT: But that's okay. You guys do -- you guys be you. It was a suggestion.
MR. IRELAND: Thank you.
THE COURT: Mr. Ireland, do you think you're going to have a lot of redirect?
MR. IRELAND: No, your Honor. Perhaps -- yeah, very little.
THE COURT: Very little. Okay. Thanks.
Well, it looks like we're doing good. He's been on -- he was on the stand for about 45 minutes.
MR. IRELAND: I've got it 1:28, your Honor. I have a timer. 1:28 left, I should say.
MR. SMITH: You're timing me?
THE COURT: Believe me, the jury appreciates a trial moving.
MR. IRELAND: I timed myself also, sir.
THE COURT: I have, too, actually. I've been timing everybody since you made the agreement. I think that's good. And I appreciate you doing it, because otherwise I don't think we would have finished this case.
(Jury in.)
THE COURT: Good afternoon, ladies and gentlemen.
Hope you had a good lunch. Have a seat.
Mr. Smith will resume his examination.
MR. SMITH: Thank you, your Honor.
Good afternoon, ladies and gentlemen of the jury.
A JUROR: Good afternoon.
RAYMOND SCOTT HENNING, DEFENDANT HEREIN, PREVIOUSLY SWORN CROSS-EXAMINATION (Resumed)
BY MR. SMITH:
Q. When we broke, Scott, I was asking you about trust issues, if you recall. I asked you if you trusted Ms. Wiseman while she worked for you. And I think your answer was "Yes"?
A. Yes. Yes.
Q. Can you pull that mic closer to you. The mic. There you go.
I want to ask, did you also trust Ms. Wiseman to provide you with the backup or information if she was claiming overtime?
A. Yes.
Q. So, if, for example, on the timesheets she submitted, if she claimed overtime of X number of hours, did you trust Ms. Wiseman to give you the information so that you could get her overtime hours?
A. I trusted she had the information that I would need for those hours.
Q. And, in fact, she gave them to you each and every pay -A. Well
Q. -- pay period?
A. -- she gave me her hours.
Q. Right.
When you communicated with Ms. Wiseman, was the primary way you communicated verbally?
A. Yes.
Q. And why was that?
A. Well, usually she was right with me in the office or the warehouse.
Q. So, if you wanted to talk to her, you could just turn and talk to her or could you just walk out of your office and talk to her?
A. Yes.
Q. In your office, how far away was she from you physically?
A. Ten feet.
Q. So, from where you're sitting to the jury box?
A. Yeah. You could just say someone's name and they're like, yes.
Q. Could you -- I don't want to put this wrong, could you yell out and say, Rosemarie, what about certain spice?
A. Yeah. I'm not a big yeller, but I could say, are you there?
Q. Okay. That's what I meant.
A. Okay.
Q. I didn't mean you were yelling at her.
A. Okay.
Q. I mean you were able to communicate without getting up off your chair?
A. Right. Correct.
Q. So, if you had a question for her, you could go to her and say, Ms. Wiseman, can you get me the picture of the peanut butter?
A. Correct.
Q. Now, you testified that you received lots and lots of e-mails.
Do you remember that?
A. Yes.
Q. You also testified that you didn't really look at the dates or the times of the e-mails, correct?
A. Correct.
Q. Why are you getting so many e-mails during this period?
A. I have multiple e-mail accounts, and I'm constantly getting e-mails from suppliers, new suppliers, unsolicited e-mails, trade show information. So, I just get a lot of e-mails.
Q. So, during the period of 2016 through 2018, can you tell the jury approximately on average the number of e-mails you would get per day?
A. Could be anywhere from -- on a slow day, could be 28 to 200.
Q. Now, when you got e-mails, you testified that you don't really look at the time of the e-mail, right?
A. No.
Q. Why not?
A. I look at the substance of the e-mail. Just because you have too much time to say what's the title of the e-mail, is that important? Is it something you need to answer? Is it something that's spam, trash, whatever? So, I pretty much just look at what the title of the e-mail is, and then if I elect to open it and see what it is, fine.
Q. Is it fair to say that your focus is on the subject matter -- is on the body of the e-mail?
A. Yeah, on the subject matter first and then when you go into the e-mail.
Q. Now, I want to talk for just a minute about this combined paycheck issue where Cary's hours were combined with Ms. Wiseman. Okay?
A. Okay.
Q. Do you agree that the total amount of time that those two payroll checks was combined was about two months?
A. Yeah. It wasn't a real long period of time.
Q. So, over this two-plus-year period, the only paychecks that were actually combined was maybe two, two-and-a-half months, fair?
A. Yes. Yes.
Q. Okay.
Now, tell the ladies and gentlemen of the jury what happened to cause you to change from combining the two paychecks to having two separate paychecks?
A. Well, originally Rose brought up that she wanted to put Cary and her paychecks together and it was fine to do. And I'm not really sure why. But I've never had a husband and wife work with me. So, it was always individuals.
So, I'm like, well, okay, whatever reasons. But it was very confusing backing out this, trying to figure this, that. It just -- it just was. And, then, towards the end, I was talking to my payroll person saying, all right, I'm calling in these payrolls, but it's so confusing for me. And she goes, well, you can't do that; you cannot have two people on one payroll even it they're husband and wife. Said, you need to back these out.
And I always try to do everything the right way. So, she asked me to go through all these and back his hours from her hours, which I had to do in order to fulfill what she said was the right way to do it.
Q. So, in fact, did you do that? Did you -A. Yes.
Q. Hold on.
Did you, in fact, go into Ms. Wiseman's payroll and Cary's payroll and back out the combined payrolls?
A. Yes.
Q. And, then, what did you do?
A. Well, then I gave the broken-out hours to Paychex, which is a national payroll company, and then they went ahead and made up each one to have their payroll records created the correct way.
Q. And did you, as you are required to do, issue W-2s to each one of them?
A. Yes. The corrected W-2s were issued.
Q. And those W-2s, again, were they generated by you at your desk or is this something the payroll service did?
A. All through the payroll service.
Q. Okay.
So, let me show you the payroll journal, which is Exhibit K -- Plaintiff's 22. And this particular one I think is Bates 87. And this is an example of the payroll journal. And it shows the time in, the time out, and the check and all that, right?
A. Correct. Yes.
Q. Is this a document that was generated by your payroll service?
A. Yes.
Q. All right.
And if we go to the end of the section for Ms. Wiseman, it shows in the last payroll 12-22-17 and then January 5th of 2018, and then January 19th of 2018, and then January 25th of 2018.
Is this the cleanup for the final checks for Ms. Wiseman?
A. I believe so.
Q. This is the corrected payroll for Ms. Wiseman, correct?
A. Yeah. When was that dated? Up on top it says 1
Q. Yeah, this is 1-29-16 to 1-25-18. But I'm just showing you the last page.
A. It should be the corrected if it's just her name on it. It's hard
Q. Let me make it a little bigger. See that?
A. Correct.
Q. So, these are the -- are these the -- is this record a record of the final checks that Rosemarie received?
A. I believe so. It's hard to tell because I'm not looking at possibly the payroll record combined, as well as the payroll record here just to say, yes, it is.
But I believe it is if it just says her name on the top.
Q. Right.
So, let me -- so that we're clear, Bates 83 all the way through
(Brief pause.)
MR. IRELAND: Your Honor
MR. SMITH: Hold on.
BY MR. SMITH:
Q. Bates 85 all the way through 95 are Rosemarie's payroll journal?
THE COURT: Hold on.
MR. IRELAND: Objection.
THE COURT: What's the objection?
MR. IRELAND: My document is two pages long, your Honor. I'm not sure what that is.
THE COURT: Why don't I give you a few minutes to confer, make sure you're talking about the same exhibit I admitted into evidence.
MR. SMITH: Okay. Let me lay a foundation then.
THE COURT: No, no, no. I want -- the document that you just used is not the same document that's in evidence, correct? Is that
MR. IRELAND: Correct, your Honor.
THE COURT: -- what you're saying?
MR. IRELAND: I specifically chose two pages that we didn't have paychecks for because we didn't have paychecks.
THE COURT: Okay.
And what are you attempting
MR. SMITH: I think counsel's right. I made a mistake. I grabbed it out of the book thinking that all the pages had been admitted and they have not.
THE COURT: Okay.
So, what you need to do then so the record is clear, you need to re-mark that as another exhibit and then ask for it to be admitted because it's different. So, it's not in evidence.
MR. SMITH: Okay.
If I may inquire, is there an agreement that this is
THE COURT: If you have to write it on, you can. Just make sure it's clear that it's a different document.
MR. IRELAND: No objection.
MR. SMITH: Okay.
So, let me move to admit
THE COURT: Lay the foundation first, sir.
What's it called?
MR. SMITH: Payroll Journal.
THE COURT: Okay. And
MR. SMITH: There's two payroll journals. One is for Cary Wiseman for the period of 1-29-16 through 1-25-18, and the second journal is for Rosemarie Wiseman from 1-29-16 through 1-25-18.
THE COURT: Okay.
So, now do what you need to do to lay a foundation for the admittance of that record, unless, Mr. Ireland, do you agree that this is admissible?
MR. IRELAND: I agree it's admissible, your Honor.
THE COURT: Okay. Well, then we can dispense with all that and get to it.
MR. SMITH: So, move to admit.
THE COURT: Uh-huh.
MR. SMITH: Thank you.
My apologies.
THE COURT: No problem.
BY MR. SMITH:
Q. So, getting back to the question, I want to show you the last page of the payroll journal that I showed you before and ask you if this is -- correctly reflects the final four checks -- 12-22, 1-5, 1-19, 1-25 checks - that Rosemarie received?
A. I believe so.
Can I see the first page on that? Is there a -- on the top right-hand corner. No, on the -- yeah, on the beginning of the first page. The top right-hand corner. Okay.
MR. IRELAND: Your Honor, could we have the Social Security number redacted?
THE COURT: Oh, yes, absolutely.
BY THE WITNESS:
A. Yeah, as long as it just has her name on it, I believe that's the correct record.
THE COURT: Okay. And, Mr. Smith, please redact those Social Security numbers.
MR. SMITH: Absolutely. I don't see it on here.
MR. IRELAND: I might have missed it, your Honor.
THE WITNESS: They usually just put the last four digits.
MR. IRELAND: I don't have that document in front of me, so -- I thought I saw it on the screen.
(Brief pause.)
MR. IRELAND: That's correct. It was the Santiva number at the upper right, your Honor.
THE COURT: All right.
MR. IRELAND: Four numbers. I thought it was
THE COURT: Okay.
MR. IRELAND: Thank you very much.
THE COURT: All right. Good. So, you both have the document now?
MR. SMITH: We do.
THE COURT: Okay. Great.
BY MR. SMITH:
Q. So, this is the upper right-hand corner. Is this what you wanted to see?
A. Yeah. I thought I just put a yellow circle up on top somewhere on the first page on the right-hand corner.
Q. Okay.
So, let me get back to my question. Again, showing you what we've marked as Exhibit K, Bates No. 95, this is the payroll journal for Rosemarie Wiseman and shows the last -this journal shows the last four checks, right?
A. Correct. Yes, correct.
Q. Those are -- the last two checks -- the last three checks, rather -- those are the corrected checks. Those are the checks after the two payrolls between Cary and Rosemarie had been separated?
A. I believe so. Without comparing the non-corrected, I'm just assuming that's the corrected payroll.
THE COURT: Well, don't assume.
BY MR. SMITH:
Q. "Yes" or "No"?
A. Yes.
Q. Okay.
So, now let me show you Cary's record and go to the second page, which is, again, Exhibit K, Bates No. 84.
MR. SMITH: Or 399? Which one is it? Both. All right.
They got two Bates numbers on the bottom.
BY MR. SMITH:
Q. Now, this is the payroll journal for Cary, right?
A. Correct.
Q. And in this at the end of this journal, it has checks for 12-22, 1-29 and 2-16, correct?
A. Correct.
Q. 1-28. Sorry. 1-28-16 and 2-16-16. I'm sorry. It's 12-22-17 right here. This one right here. See that?
A. Yes.
Q. That's Cary's last check. Correct?
A. No. I think Cary had a last regular check after he provided his Social Security number finally.
Q. Right.
But this is the check that was issued before the corrected check that you issued after they left, after January of 2018?
A. Yes.
Q. Okay.
So, the point of my question is you cleaned it up.
You fixed the combined checks and you separated out the two checks, one for Rosemarie and one for Cary, once you were told by the payroll service that this was incorrect?
A. Correct.
Q. Okay.
Now, there was testimony from Cary that you sent an Uber to pick him up. Remember that?
A. Yes.
Q. Why did you send an Uber to pick up Cary so that he could come to your work?
A. Cary -- well, what happened, Rose said that she'd have to 110 leave -- we were still working -- because Cary doesn't
MR. IRELAND: Objection.
THE COURT: Yeah, I think we need a sidebar on this. (Proceedings had at sidebar:)
THE COURT: Go ahead.
MR. IRELAND: The objection, your Honor, is he was clearly going towards the issues that had been barred by motion in limine regarding the alcoholism, DUIs, et cetera.
THE COURT: It seemed that way to me, as well.
MR. SMITH: Well, how do I explain the Uber?
THE COURT: Why do you need to explain it?
MR. SMITH: Because why would he ask and pay money for an Uber for an employee unless it was extraordinary circumstances?
THE COURT: You know, I just don't think that's relevant to the case.
MR. SMITH: Well, counsel opened it up by asking -THE COURT: You didn't object to it.
MR. SMITH: I didn't.
THE COURT: Well, what you're going to do -- the marginal relevance of this piece of evidence to anything that we're doing in this case would be vastly outweighed by the prejudice you might cause the witness to create by revealing things about Mr. Wiseman that the Court has clearly barred in a motion in limine ruling.
MR. SMITH: The DUIs were barred, Judge.
THE COURT: But you're just
MR. SMITH: Not the fact that he doesn't have a driver's license.
THE COURT: If all you're going to do is ask him whether or not he has a driver's license, that's okay. It seemed to me you were moving in a slightly different direction and your client was moving in a different direction, and that's what I'm worried about. Your client has a tendency to just talk and talk and talk and talk. And I don't want him talk and talk and talking himself into issues that are not relevant and are prejudicial in this case.
So, I think we need to be clear what he can and can't say. If he wants to say, hey, you know, he doesn't have a driver's license and, therefore, he sent him an Uber to bring him to work, that's fine. Anything past that is not. And I don't want to risk the chance that your client blurts something out.
MR. SMITH: Okay. Well, then I'm going to ask that question in a leading way so as not to ask it open-ended so we don't have the wrong answer
THE COURT: And make sure
MR. SMITH: -- in contraversion to the Court's order.
THE COURT: I appreciate that. And make sure you tell him to answer "Yes" or "No" only.
MR. SMITH: Okay.
(Proceedings had in open court:)
THE COURT: For the record, the objection is overruled in part and sustained in part.
MR. SMITH: Okay.
BY MR. SMITH:
Q. Scott, you heard the testimony from Cary that he would -you would call him an Uber in order to pick him up and bring him in to work, right? You heard that?
A. I believe that
Q. Just "Yes" or "No."
A. -- happened once or twice. Yes.
Q. Is the reason that you needed to do that is because Cary did not have a valid driver's license; "Yes" or "No"?
A. Yes.
Q. So, while we took a break there, my assistant co-counsel saved me and found the final check. And I want to make sure. This is a check that was written on March 16th of 2018. Do you see the date there?
A. Yes.
Q. Okay.
This is the final check that was issued to Cary pursuant to the separation of the two checks, right?
A. Correct.
MR. IRELAND: Objection, your Honor.
BY THE WITNESS:
A. Correct.
MR. IRELAND: Relevance.
THE COURT: I think the objection should be asked and answered because we've gone over this now a number of times.
MR. IRELAND: Asked and answered then, your Honor. THE COURT: That's sustained.
I think this point -- your point has been made. It's time to move on to another topic, sir.
MR. SMITH: Okay.
BY MR. SMITH:
Q. Now, Ms. Wiseman provided the Court -- I'm sorry, provided and showed the jury Plaintiff's Exhibit No. 5. And she went through this list of records. And you heard the testimony where she said that she worked on each and every one of these items, and she testified that she worked on these items on or about the dates that are listed on this document, correct?
Do you remember that?
A. Yes.
Q. Is there any way that you can determine how much time she put into any one of these pages and pages of pictures of JPEGs that can help you determine how much time she put into this? A. No.
Q. Is there any record anywhere that you'd be able to access or look at or pull up that you would -- allow you to make a determination of how much time and, therefore, how much overtime was spent according to her on all of these doc- -all of these items?
A. No.
MR. IRELAND: Objection.
THE COURT: Well, the answer is already in.
BY MR. SMITH:
Q. I want to ask you some specific information or questions about this. You've looked at this. You've had the opportunity to look at Exhibit 5, which has pages and pages and pages of information on it. Do you have an opinion as to what the source of this information was?
MR. IRELAND: Objection.
THE COURT: We're going to have a sidebar right now about this.
(Proceedings had at sidebar:)
MR. SMITH: If I may cut this short, Judge, he's going to testify it came off his office computer.
THE COURT: Joe, what's the last question he asked?
(Record read.)
THE COURT: His opinion is not relevant. Either he knows where the document came from or he does not. Whether he has an opinion, a guess, a thought about it, is not evidence. Okay?
MR. SMITH: Okay. I'll rephrase the question.
THE COURT: So, you need to rephrase it.
MR. SMITH: Yep.
THE COURT: Thank you.
(Proceedings had in open court:)
THE COURT: The objection is sustained.
BY MR. SMITH:
Q. Scott, do you know where the information on Exhibit 5 came from?
A. I believe the images -- which we say JPEG or whatever -were captured from my Web site, and then this is nothing but a record of that they were just captured.
Q. Okay.
A. Not showing any work or anything done.
Q. Explain to the jury what the word "captured" means.
A. It almost would be like if you were on your phone and you copied an image and you made a new folder, like on your iPhone or whatever you might have, is basically that. Taking an image and just placing it again into your -- so, you're like moving a file from one file to another. That's really what it is.
Q. Now, on this document, there's a reference to movies, if I can find it.
(Brief pause.)
THE WITNESS: The right-hand side it says QuickTime movie.
MR. SMITH: Here we go.
BY MR. SMITH:
Q. Page 375 of Plaintiff's Exhibit No. 5. You see on here it says 059 MOV, 062 MOV?
In your business, Scott, did you have any reason to have a movie attached to any of your items or things that you had for sale?
A. We have no movies on our Web site.
Q. And the page before that, at the bottom there where it says 18, 19, 20 MOV, that's a -- do you know what that is, what that's a shorthand for?
A. Movie, MOV, because it says QuickTime movie to the right. Q. Okay.
And did you have any need or any work that would have been required on any movies?
A. No.
Q. Did you ever work before or since
MR. SMITH: Well, strike that.
BY MR. SMITH:
Q. Did you ever manipulate or work on these kinds of JPEGs in order to get them ready for sale on Amazon?
A. I have personally, yes.
Q. And when you worked on these, did you ever have to work with a movie?
A. No.
Q. Now, there's a reference here in terms of an automobile, a reference that's on this document. Do you know what that's from?
A. That would be from a personal e-mail of mine for a car club I belong to.
Q. That's 0355 right here, RROC
A. Yes.
Q. -- Ashville?
Does that have anything to do with your business?
A. Absolutely not.
Q. Does that support your statement that you believe this information was retrieved from your office computer?
A. My computer or someone had access to my e-mails.
Q. Did you give people access to your e-mail?
A. No, but they could have possibly known my password
Q. I'm not asking what possible.
A. Okay.
Q. I'm asking did you give access to anybody else
A. No.
Q. -- in your
A. I never.
Q. All right.
Now, did you ever willfully not pay Rose any overtime?
MR. IRELAND: Objection. Legal conclusion.
THE COURT: Objection sustained.
Rephrase the question.
BY MR. SMITH:
Q. Did you ever decide that even though Ms. Wiseman was owed overtime not to pay it?
A. No.
Q. Did you ever know that -- did you ever know that you owed Ms. Wiseman overtime and then just said, I don't care, I don't want -- I'm just not going to pay it?
A. No, never did.
MR. SMITH: That's all I have.
THE COURT: Okay.
Mr. Ireland?
MR. IRELAND: Thank you, your Honor. I have very few questions.
REDIRECT EXAMINATION
BY MR. IRELAND:
Q. Regarding the last area of questions, the questions about the movies, you weren't there when Ms. Wiseman was viewing those movies, correct?
A. Not if it was at her home in her personal computer.
Q. Were the times that she had the movies times that were on the clock or off the clock?
A. I'm not seeing that file and the time at this moment.
There is quite a few movies.
Q. And there were quite a few that were off the clock. I went through it in front of you. You agree?
A. Well, everything when you said before that were -- I'm sorry.
THE COURT: Yeah
THE WITNESS: Okay. I'm catching myself here.
THE COURT: Thank you.
BY THE WITNESS:
A. I don't know, but -- if they were on the clock. But supposedly all that -- all those files were things that she did for me on my time and now there's things -- this is what I was told. Here's all your evidence of what she did.
BY MR. IRELAND:
Q. Mr. Henning
THE COURT: Yeah.
BY THE WITNESS:
A. Okay. I'm just trying to
BY MR. IRELAND:
Q. I asked you if when you heard Rose on the stand and I put timesheets next to the PDF files and compared the on-the-clock time and the off-the-clock time, that the first page was all off the clock, the second page was off the clock. I found one section for one date that was on the clock and we acknowledged that.
Do you remember that?
A. I remember that, but not specifically each image compared to what time at this moment.
Q. I understand. I'm trying to move along here.
A. Okay. Me, too.
Q. So, you weren't there watching her watch the movies, correct?
A. No.
Q. So, you don't know whether or not she had a work purpose or a not work purpose, correct?
A. Well, yes, I don't know.
Q. Okay.
A-1299. In this box, it reads working on patent. Do you see that?
A. Yes.
Q. You agree that Ms. Wiseman worked on patents for products that you had?
A. Yes.
Q. Okay.
And this is around the dates that -- some of the movies that were described. I think they were July 8th or 9th and she marks it down not -- well, she marks it for three days. Are you aware if people use YouTube videos to learn how to do things they don't know how to do?
A. There's a multitude of things, yes.
Q. Okay.
Henning - redirect
And Rosemarie Wiseman's not a patent attorney, right?
A. No.
Q. So, could she have gone to YouTube, downloaded how to do a patent so she could learn how to do patents for you?
MR. SMITH: Objection, your Honor. Speculation.
THE COURT: Can I hear the question, again? I'm sorry.
(Record read.)
THE COURT: Sustained.
BY MR. IRELAND:
Q. What process did she use to learn how to make patents?
A. We had a subscription to Legal Zoom.
Q. Okay.
Is that the only thing she used?
A. I believe so.
Q. How do you know that?
A. Well, it's what she was working on in my office, and we signed up for Legal Zoom.
Q. Okay.
And that's the only place she worked on the patent?
A. I believe so.
Q. While we've got it on the screen, let's talk about the Excel spreadsheet and Exhibit B-31, the 91 hours from 8-4.
Counsel, once again, put this on the screen and did the math for this particular shortage, right?
A. Yes.
Q. Okay.
And when I put it on the screen, I asked you about whether or not you checked the math, and I believe your answer was not quite the same. I don't believe you said that you did the math for this, right?
A. I trusted her math to be correct
Q. Okay.
A. -- yes.
Q. But you didn't pay the number on the sheet. You paid less, correct?
A. I instructed payroll or Paychex to pay whatever was on that check or what was her total.
Q. And the total was not 85, which is what the paycheck is for, correct?
A. Correct. I'm trying to add up the numbers. I don't think the numbers in her category were correct either, right?
Q. Counsel - excuse me.
Mr. Henning, I was simply trying to elicit from you that when I showed you this document, you did not claim it was a math error or was anything related to adding it up. And when counsel questioned you, he did the math and you agreed that that was the basis for your not paying all the hours that are on the timesheet.
Remember that?
A. Right now I'm seeing 91.5 hours I would have called in.
Q. But you paid 85?
A. Somehow 85 got on that check.
Q. Again
A. We
Q. -- Pay-
A. Yes.
Q. Paychex made a mistake?
A. Yes.
MR. SMITH: Objection. Asked and answered. We've gone over this, your Honor.
THE COURT: Overruled.
BY MR. IRELAND:
Q. But Mr. Smith didn't do the math including all the notations from the same pay period, correct?
A. I guess, because we go by
Q. Sir
A. -- hours put on.
Q. -- I didn't ask you for more. I asked if he went over it.
Did he go over it?
A. He went over the calculations, I guess, yes.
Q. Again, sir, did he go over this?
A. No. He went over the sheet I was handed from Rosemarie.
Q. And there's no "in" indicating you received this, correct?
A. Well, I obviously maybe did, but maybe that was one that she called me in on -- on the phone, right? And gave me the 86 hours that I put in.
Q. Exhibit K
MR. IRELAND: K, right?
MR. SMITH: K.
BY MR. IRELAND:
Q. Exhibit K, you got a lot of questions about this and a lot of very kind of loose language of cleanup, cleanup, cleanup. This is a journal that was created after Cary received wages through Rosemarie's paycheck, correct?
A. Correct.
Q. Okay.
And Mr. Wiseman only received three checks in his name, and they're submitted in evidence, correct?
A. I believe so. I'm not seeing them.
Q. So, these other entries are basically you backing out what you believed his hours were, correct?
A. Backing out from Rose's sheets where she labeled Cary next to her time, backed all that out of her
Q. So
A. -- timesheets.
Q. So, you say it's from Rose's timesheets and only Rose's timesheets?
A. Sheets that were combined timesheets from the two.
Q. Right.
And that
A. Should have been because there's no check number. It says check unknown. That would mean it was probably on her check and it was backed out.
Q. So, in other words, you looked at Rose's sheet and if it said Cary, you put it on this sheet, correct?
A. Tried to decipher his hours away from hers at the advising of the payroll company.
Q. Sir, I'm asking about the process. So, please answer my question. You testified previously that you took Rose's timesheets and where it said Cary, you put it into -A. Yes.
Q. -- the journal?
A. Yes.
Q. Okay. Thank you.
So, by my vision, 6-9 is the first entry you have for six hours for Mr. Wiseman, correct?
A. If that is the first page.
Q. Are you saying that I don't have the first page?
A. I don't know. I'm just seeing what you have on the screen.
Q. So, you think your counsel produced an incomplete document?
A. No.
Q. So, the first entry -- and you agree this redacted section up here is -- this redacted section up here is a different person, right?
A. Yes.
Q. All right.
And, then, this starts 6-9-17, right?
A. Correct. That's what the date says.
Q. And, then, September 29th, '17?
A. Well, that would -- 6 is June.
Q. Mr. Henning, I'm simply reading the dates and asking you to confirm them?
A. Well, I can't see the other dates.
Q. Oh, I'm sorry. My apologies.
9-29 is directly above my finger, correct?
A. Correct.
Q. And, then, the next one is 10-31?
A. I think that's 10-13.
Q. 10-13? Okay.
But you agree that it's sequential? It starts in
June and goes to the end?
A. Correct.
Q. So, the first one is June, correct?
A. Correct.
Q. All right.
This timesheet has Cary's name in February of 2017
and you don't have that in the payroll journal, do you?
MR. SMITH: I'm sorry, what are we looking at? Which number?
MR. IRELAND: 1297-A.
(Brief pause.)
BY MR. IRELAND:
Q. Mr. Henning, I'm asking you
A. That one is different than every other one because it's next to the 7:30 in the morning with Cary. The rest of them are always to the right. If it says Cary. And, then, also Cary was sick through that time and someone was off sick on Thursday, the March 2nd. So, does that mean that Cary was sick on Monday and Tuesday or did Cary come in sick with her? I don't know what that means.
Q. But your first entry is in June, correct?
A. Going back to that time, that might have been the one time that she ever went ahead and brought him in. I don't know. Q. I didn't ask that, sir.
A. That's the one I see there is in June. I did print out a complete list from payroll company after everything was backed out for the whole year.
Q. Cary's name appears there in February 27th, correct?
A. Sick. So, obviously he wasn't working.
Q. Mr. Henning, answer my question, please, sir.
A. With Cary.
Q. It says, with Cary, correct?
A. Right.
Q. And with Cary appears there?
A. Yes.
Q. And Cary appears there?
A. Yes.
Q. And Cary appears there?
A. Yes.
Q. You testified that you didn't pay attention to the dates of the e-mails, all you cared about was the substance, right?
A. I always look at the title and see if it's something I need to answer or not. That's what I look at.
Q. So, the only thing you look at is the title, you don't look at the substance. You just look at the title?
MR. SMITH: Objection. Argumentative.
THE COURT: Overruled.
BY THE WITNESS:
A. You always look at the subject matter before you open an e-mail and see what it's about or if you're going to read it. BY MR. IRELAND:
Q. Right.
And when your attorney was asking you questions, you said you never paid attention to the times -- never -- and the only thing you looked at was the substance.
Do you remember that?
A. I go to the substance. I don't focus on when they came in. You are correct.
Q. Right.
Plaintiff's Exhibit 1. Do you remember seeing this, Mr. Henning?
A. Yes.
Q. The substance of this talks about Mrs. Wiseman working nine hours on a Saturday morning; does it not?
A. It says, I have been awake since 1:00 a.m., outside of writing this to you.
Q. I have spent all of these hours working on Amazon listings, correct?
A. What hours? These.
Q. 1:00 a.m. to 10:00 p.m. -- or 10:00 a.m. Nine hours of work.
So, the question is: The substance of this says that she worked from home on Amazon listings on a Saturday morning for nine hours. That's the substance?
A. Well, that's part of the substance, I guess, if you read this whole thing.
Q. You're right.
And, then, the next substance says that she did 400 listings and talks about prompt service, correct?
A. That's -- this is what she's saying, yes -- she's writing. Q. Right.
And the substance of the e-mail from your sole employee that wrote, please read, in the subject line, which you say you read, the substance is that she said she did 400 new listings as of February 2017, correct?
A. Correct. And we only have 111 products
Q. I
A. -- online.
Q. I'm asking you if that's the substance, sir. I'm not asking you to
A. Yes, that's the substance, I guess, if you
Q. Thank you very much.
A. -- read this whole thing.
Q. The substance of the middle paragraph is that she does hours and hours of work at home, correct?
A. Which she submitted to me; I paid.
Q. Sir, the substance says that she did hours and hours?
A. This is what she's saying.
Q. Thank you.
MR. IRELAND: No further questions.
MR. SMITH: If I may, your Honor.
RECROSS EXAMINATION
BY MR. SMITH:
Q. So, Scott, in that last document that counsel showed you, this e-mail that was drafted by Mrs. Wiseman, does it show anywhere in that e-mail at all what she worked on, which product?
A. No.
Q. Are you able to make any determination as to how long she worked on any of the individual products?
A. No.
Q. Are you able to make a determination that -- whether or not she worked on the product -- worked on these products without a break?
A. No.
Q. Do you know if she started one product, worked on another one, moved from that product, went back to another product, anything at all that would tell you the amount of time and overtime that she worked?
A. No.
Q. Are you able to determine from this document the dollar amount of overtime that she would be entitled to?
A. No.
Q. Now, counsel asked you questions about the trademark research.
THE COURT: The patent, I believe. I think it was patent.
MR. SMITH: I'm sorry. Thank you, your Honor.
BY MR. SMITH:
Q. The patent work that you did. Do you remember that?
A. Yes.
Q. And he showed you the page with that little gray box that refers to patent work. Let me find it. 1299.
MR. SMITH: Thank you.
BY MR. SMITH:
Q. So, this is 1299. Let me make it big.
Up until this lawsuit, you never saw that page, correct?
A. No.
Q. Correct?
A. No, I did not see that page.
Q. You have to say correct.
A. Correct.
Q. What you saw and what Ms. Wiseman submitted was this document, the timesheet?
A. Correct.
Q. Without my blue calculations on it?
A. Correct.
Q. Is there any way at all that you could tell from the document that Ms. Wiseman submitted to you that she was working on patent?
A. No.
MR. SMITH: That's all I have. Thank you.
THE COURT: Thank you.
Anything further?
MR. IRELAND: Just one or two questions, your Honor.
THE COURT: Please.
FURTHER REDIRECT EXAMINATION
BY MR. IRELAND:
Q. Mr. Henning, I was asking you about the patent to establish the reason why she might have been watching movies. Would you agree that was my questions?
A. That was your questions.
MR. SMITH: Hold on. I'm going to object to the form of the question.
THE COURT: Sustained.
BY MR. IRELAND:
Q. My questions -- I asked you a bunch of questions about people watching YouTube videos to learn how to do things, right?
A. Yes.
Q. Okay.
And I indicated that this patent entry was in the adjacent time period to the movies, correct?
A. This was what you told me.
Q. The documents don't support that?
MR. SMITH: Objection.
THE COURT: Overruled.
BY THE WITNESS:
A. I have to compare the documents to see the timesheet and that document and date next to each other for me to see it.
MR. IRELAND: Just a minute, your Honor.
THE WITNESS: It still won't prove that movies
THE COURT: Look
THE WITNESS: Oh.
THE COURT: -- we've talked about this. There's no question pending, sir. Please.
(Brief pause.)
MR. IRELAND: 375 from document -- I'm sorry, Exhibit
5, your Honor.
BY MR. IRELAND:
Q. Here's some of the MOVs. The date is 7-9, correct?
A. Correct.
Q. Back to Exhibit A-1299. 7-9 is right here (indicating) on a Saturday; would you agree?
A. Yes. And it looks like I paid the hours for that.
Q. Mr. Henning, did I ask you if you paid the hours?
A. Well, okay. I'm just looking at your information you're providing.
Q. Mr. Henning.
So, these movies could be related to the patent work, correct?
MR. SMITH: Objection. Speculation.
THE COURT: The question is, do you know if they are?
BY MR. IRELAND:
Q. Do you know if they are related to the patent work?
A. No.
Q. And who would know that?
A. The person looking at the videos
MR. SMITH: Objection.
BY THE WITNESS:
A. -- could verify.
THE COURT: Sustained.
MR. IRELAND: My apologies, your Honor.
No further questions.
(End of excerpt.) * * * * *
I certify that the foregoing is a correct excerpt from the record of proceedings in the above-entitled matter.
Joseph Rickhoff Official Court Reporter
December 6, 2022