Devine v. Ripa & Associates, LLC

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

CLARENCE DEVINE,

Plaintiff,

v. Case No. 8:20-cv-349-T-33AEP

RIPA & ASSOCIATES, LLC,

Defendant.

______________________________/

ORDER

This matter comes before the Court pursuant to Defendant

Ripa & Associates, LLC’s Motion for Summary Judgment (Doc. #

34), filed on September 15, 2020. Plaintiff Clarence Devine

responded on October 16, 2020. (Doc. # 39). For the reasons

that follow, the Motion is denied.

I. Background

Devine was hired by Ripa as a laborer in February 2019.

(Doc. # 34-1 at 49). He left Ripa in mid-December 2019. (Id.

at Pl. Depo. 15:8-15:11).

Devine was paid on an hourly basis. (Id. at Pl. Depo.

34:20-34:21). He started at $12 an hour and received a raise

to $13.50 an hour in September 2019. (Id. at Pl. Depo. 36:11-

36:25). At the outset of his employment, Devine received

Ripa’s handbook. (Id. at Pl. Depo. 22:10-24:1; 49-50). The

Handbook states that:

All required deductions, such as for Federal taxes,

Social Security, etc., and all authorized voluntary

deductions, such as Health Insurance contributions,

will be withheld automatically from paychecks.

(Doc. # 34-2 at 2, 10).

According to Ripa’s Chief Financial Officer, Joe Pitre,

Ripa “kept time and payroll records for [Devine] which show

the amount of hours worked in each workweek as well as the

pay for such work, including overtime pay at the rate of time

and a half of [Devine’s] regular rate.” (Id. at 2-3, 12-36).

Devine’s paystubs show that taxes were withheld from his pay.

(Id. at 3, 12-13). Additionally, Devine admits that he was

paid overtime in some weeks. (Doc. # 34-1 at Pl. Depo. 61:23-

62:4).

Pitre averred that “Ripa made significant efforts to

ensure its employees were paid correctly.” (Doc. # 34-2 at

3). Each of Ripa’s supervisors used “an electronic method to

enter and record each employee’s hours worked on a daily

basis.” (Id.). Billy Maness supervised Devine. (Doc. # 34-1

at Pl. Depo. 34:15-34:19). Sandra Schmidt, who worked with

him and was Maness’s significant other, had a notebook and a

company-issued tablet in which she recorded the hours worked

by Devine on a daily basis. (Id. at Pl. Depo. 57:21-58:18;

74:5-74:16). According to Devine, the hours in the notebook

and the tablet were the same. (Id. at Pl. Depo. 80:6-80:8).

As a laborer, Devine performed duties as a general

laborer, tail man, pipe layer, and skid steer operator on a

construction crew. (Id. at Pl. Depo. 25:14-26:1). Each of

these positions required him to work on a team with other

employees. (Id. at Pl. Depo. 25:19-30:4). He also admitted

that co-workers with the same work schedule drove him to work,

with the exception of a period of one month when his mother

drove him. (Id. at Pl. Depo. 31:5-34:14).

On approximately five occasions, Plaintiff was asked by

another supervisor, Mr. Temple, to leave his normal work crew

and work on a different job site. (Id. at Pl. Depo. 39:7-

40:18). At the end of those workdays, Devine was brought back

to his crew and, at least once, he carpooled with a co-worker

to drive home. (Id. at Pl. Depo. 43:11-43:25).

Devine contends that for two of the days he worked with

Temple, he was “shorted” two hours because Maness only

recorded Devine as working the same number of hours that the

rest of the crew worked. (Id. at Pl. Depo. 44:4-44:10). Yet,

Devine has no idea what two days he was shorted. (Id. at Pl.

Depo. 40:19-41:8).

Devine testified that he told Temple when this happened,

and that Temple agreed to fix it. (Id. at Pl. Depo. 45:19-

45:25). Devine stated that he does not “know if he ever fixed

it or not,” but also testified that Temple “never corrected

it.” (Id.).

Devine initially testified that his pay was simply

calculated by multiplying his hourly rate by the hours worked

and that taxes were not deducted, which made the calculation

simple. (Id. at Pl. Depo. 46:9-50:3). He testified: “I wasn’t

getting taxes to it, my taxes. They wasn’t taking taxes out

of my check at all. I don’t know why. I don’t know why if I

put something — I don’t [know] what it was, but I wasn’t

getting taxes taken out.” (Id. at Pl. Depo. 49:9-49:12). He

continued: “if I’m getting $12 an hour times and I add times

48 and they add up to what I get on my paycheck — I mean, my

paycheck didn’t add up to that, that means Mr. Temple didn’t

correct it.” (Id. at Pl. Depo. 49:14-49:17). Yet, the

undisputed pay records establish that taxes were deducted

from Devine’s paycheck. (Doc. # 34-2 at 3, 12-13).

Devine also claims that he was at times not compensated

for the hours Schmidt recorded. (Doc. # 34-1 at Pl. Depo.

76:13-76:17). According to Devine, when he would check the

tablet in which his hours were recorded, he would point out

to Schmidt when the recorded number of hours was wrong. (Id.

at Pl. Depo. 75:10-24). In response, Schmidt would say

“Everybody makes mistakes” or “I’ll fix it” but “it was never

getting corrected at the end of the day.” (Id. at Pl. Depo.

75:25-76:3).

Devine seemed to base his contention that Schmidt never

corrected his hours on the fact that the number of recorded

hours multiplied by his hourly rate did not amount to the net

amount he received on his pay card. (Id. at Pl. Depo. 76:5-

17; 84:16-84:24). Specifically, Devine testified “I didn’t

write it down, but I will go - like when we look at the tablet

or notebook, I will go, and we’ll add hours up that I’m

looking at, we’ll add it up. And, like I said, I wasn’t

getting taxes took out of my stub, so I know how much.” (Id.

at Pl. Depo. 84:20-84:24). After being informed that taxes

were taken out, Devine then testified that he knew his taxes

were taken out of his paycheck but that it “wasn’t that much.”

(Id. at Pl. Depo. 62:17-62:24; 85:4-85:20).

In Devine’s declaration, he reiterates that Schmidt

incorrectly recorded the number of hours worked. He states

that he “and many others on [his] crew, routinely complained

that [their] hours were not being recorded properly.” (Doc.

# 39-2 at 2). “For instance, [they] would routinely work a

ten (10) hour shift but then find out [they] were only

credited for eight (8) hours of work.” (Id.). “[They] were

told that it would be corrected but when [they] would receive

[their] pay, it was clear that [they] were not receiving

[their] full hours because the paychecks were not adding up

to what [they] believed [they] were owed.” (Id.). Similarly,

another former Ripa employee, Clevant Davis, averred that he

and Devine “routinely complained that [their] hours were not

being recorded properly” and that, although they were told it

would be corrected, it usually was not, resulting in a lower

paycheck than expected. (Doc. # 39-5 at 2).

Devine is unable to point to any specific workweek during

which he was allegedly not paid properly for all overtime

hours worked. (Doc. # 34-1 at Pl. Depo. 63:4-63:11; 102:1-

102:14). He admits that he does not have any documentation

showing on which days he allegedly was not properly paid.

(Id. at Pl. Depo. 102:1-102:17). He did not take any notes of

the hours he worked. (Id. at Pl. Depo. 73:20-74:2). Generally,

Devine could not remember any specific number of hours worked

in any week and agrees that his hours fluctuated. (Id. at Pl.

Depo. 64:7-64:11). But Devine testified that he recalls one

week where he worked 56 hours but was only paid for 42 hours.

(Id. at Pl. Depo. 73:14-19). The pay records reflect that

Devine was not paid for working 56 hours for any week. (Doc.

# 39-4).

Devine admitted during his deposition that, contrary to

the allegations in the complaint, he did not routinely work

10-hour days Monday through Friday and every other Saturday

from 6:45 am until 5:30 am. (Doc. # 34-1 at Pl. Depo. 68:10-

71:4). Although he was supposed to work 10-hour days Monday

through Friday, he sometimes worked more than that, and

sometimes less. (Id. at Pl. Depo. 108:1-18). He also admitted

that his verified interrogatory answers are incorrect because

he in fact did not work overtime hours in every week during

his employment. (Id. at Ex. A, Pl. Depo. 71:5-73:13).

Devine initiated this case on February 13, 2020, against

Ripa, asserting a claim for unpaid overtime under the Fair

Labor Standards Act (FLSA). (Doc. # 1). The Court entered its

fast-track Scheduling Order on March 31, 2020. (Doc. # 9).

The parties mediated on May 19, 2020, but reached an impasse.

(Doc. # 21). The Court subsequently entered its Case

Management and Scheduling Order on May 27, 2020, and the case

proceeded through discovery. (Doc. # 24).

Ripa now seeks summary judgment on Devine’s claim. (Doc.

# 34). Devine has responded (Doc. # 39), and the Motion is

ripe for review.

II. Legal Standard

Summary judgment is appropriate “if the movant shows

that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a). A factual dispute alone is not enough to

defeat a properly pled motion for summary judgment; only the

existence of a genuine issue of material fact will preclude

a grant of summary judgment. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247-48 (1986).

An issue is genuine if the evidence is such that a

reasonable jury could return a verdict for the non-moving

party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742

(11th Cir. 1996)(citing Hairston v. Gainesville Sun Publ’g

Co., 9 F.3d 913, 918 (11th Cir. 1993)). A fact is material if

it may affect the outcome of the suit under the governing

law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.

1997). The moving party bears the initial burden of showing

the court, by reference to materials on file, that there are

no genuine issues of material fact that should be decided at

trial. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260

(11th Cir. 2004)(citing Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986)). “When a moving party has discharged its

burden, the non-moving party must then ‘go beyond the

pleadings,’ and by its own affidavits, or by ‘depositions,

answers to interrogatories, and admissions on file,’

designate specific facts showing that there is a genuine issue

for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,

593-94 (11th Cir. 1995)(quoting Celotex, 477 U.S. at 324).

If there is a conflict between the parties’ allegations

or evidence, the non-moving party’s evidence is presumed to

be true and all reasonable inferences must be drawn in the

non-moving party’s favor. Shotz v. City of Plantation, 344

F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact finder

evaluating the evidence could draw more than one inference

from the facts, and if that inference introduces a genuine

issue of material fact, the court should not grant summary

judgment. Samples ex rel. Samples v. City of Atlanta, 846

F.2d 1328, 1330 (11th Cir. 1988). But, if the non-movant’s

response consists of nothing “more than a repetition of his

conclusional allegations,” summary judgment is not only

proper, but required. Morris v. Ross, 663 F.2d 1032, 1034

(11th Cir. 1981).

III. Analysis

To succeed on his FLSA claim, Devine “must demonstrate

that (1) he [] worked overtime without compensation and (2)

[Ripa] knew or should have known of the overtime work.” Allen

v. Bd. of Pub. Educ. for Bibb Cty., 495 F.3d 1306, 1314–15

(11th Cir. 2007). Devine “bears the burden of proving [his]

claim that [he] performed unpaid overtime work.” Straley v.

Ferrellgas, Inc., No. 8:08-cv-2460-T-26MAP, 2009 WL 10670500,

at *2 (M.D. Fla. Sept. 16, 2009).

“Although a FLSA plaintiff bears the burden of proving

that he or she worked overtime without compensation, ‘[t]he

remedial nature of this statute and the great public policy

which it embodies . . . militate against making that burden

an impossible hurdle for the employee.’” Allen, 495 F.3d at

1315 (quoting Anderson v. Mt. Clemens Pottery Co., 328 U.S.

680, 687 (1946)). “It is the employer’s duty to keep records

of the employee’s wages, hours, and other conditions and

practices of employment.” Id. “The employer is in a superior

position to know and produce the most probative facts

concerning the nature and amount of work performed and

‘[e]mployees seldom keep such records themselves.’” Id.

(quoting Anderson, 328 U.S. at 687).

“Where the employer has records of time, the employee

must come forward with sufficient evidence to call such

records into question.” Id. “This is especially true where

the employer has kept records that reflect overtime hours.”

Id. Nevertheless, the payment of some overtime hours does not

preclude a plaintiff from succeeding on his claim. See Watts

v. Silverton Mortg. Specialists, Inc., 378 F. Supp. 3d 1164,

1175 (N.D. Ga. 2019)(“However, the fact that on some occasions

Plaintiff reported (or was allowed to report) overtime, and

was paid for it, does not defeat her claim that there were

other hours that she worked that she was not allowed to report

and was not paid for.”).

“Summary judgment is warranted in situations where

defendants provide detailed time records indicating the times

that employees arrive and leave.” Hernandez v. Quality

Constr. Performance, Inc., No. 1:13-CV-23267-UU, 2014 WL

12531531, at *3 (S.D. Fla. May 6, 2014). “Summary judgment

should be denied where the employer’s time records reflect

the total daily hours worked each day without indicating a

specific work schedule or whether there were any breaks in

the day.” Id. The Eleventh Circuit has explained that, “in

situations where the employer’s records cannot be trusted and

the employee lacks documentation, . . . an employee has

carried out his burden if he proves that he has in fact

performed work for which he was improperly compensated and if

he produces sufficient evidence to show the amount and extent

of that work as a matter of just and reasonable inference.”

Allen, 495 F.3d at 1316 (11th Cir. 2007)(citation omitted).

Ripa argues that it kept sufficient records of the hours

Devine worked — including some overtime hours — and that he

has not presented evidence to undermine the trustworthiness

of these records. (Doc. # 34 at 9-10). Ripa emphasizes that

Devine did “not take any notes of the hours he worked” and is

“also unable to remember any specific [number] of hours worked

in any week and agrees that his hours fluctuated.” (Id. at

10).

But, here, Ripa’s records only reflect the total number

of hours Devine worked each day. (Doc. # 34-2 at 15-36). These

records do not state the beginning and end times for each day

and, usually, do not indicate the number or length of breaks

taken. (Id.); see Hernandez, 2014 WL 12531531, at *3 (“Summary

judgment should be denied where the employer’s time records

reflect the total daily hours worked each day without

indicating a specific work schedule or whether there were any

breaks in the day.”); see also Centeno v. I & C Earthmovers

Corp., 970 F. Supp. 2d 1280, 1288 (S.D. Fla. 2013)(finding

defendants’ records unreliable because, among other reasons,

the “time sheets [did] not indicate what time the plaintiffs

arrived at work each day, if they took any breaks during the

work day or what time they left work”). Similarly, the records

reflect only rounded numbers of hours worked, such as 10.00

or 9.50 hours. (Id.); see Hernandez, 2014 WL 12531531, at *3

(“Defendants’ time records fall under the latter category and

do not merit summary judgment. . . . Often the total amount

of hours worked is a round 8.0, though this number may also

be 13.5 or 4.0. This round number does not reflect Plaintiff’s

actual work schedule and does not indicate whether Plaintiff

took any breaks during the day.”).

Furthermore, Devine has presented evidence to call the

accuracy of these records into question. Both he and another

former Ripa employee have declared under penalty of perjury

that Schmidt frequently under-recorded the number of hours

that they worked. (Doc. # 39-2; Doc. # 39-5); see also Brown

v. Gulf Coast Jewish Family Servs., Inc., No. 8:10-cv-1749-

T-27AEP, 2011 WL 3957771, at *6 (M.D. Fla. Aug. 9,

2011)(denying summary judgment where another former employee

provided an affidavit, stating that “Defendant’s supervisors

directed her and others to record a lunch break regardless of

whether a lunch break was taken or not”), report and

recommendation adopted, No. 8:10-cv-1749-T-27AEP, 2011 WL

4005928 (M.D. Fla. Sept. 8, 2011). Devine similarly testified

during his deposition that he recalled one week where he

worked 56 hours but was only paid for working 42 hours. (Doc.

# 34-1 at Pl. Depo. 73:14-19). Indeed, the payroll records

indicate that Devine was never paid for working 56 hours in

a week. (Doc. # 39-4; Doc. # 34-2 at 15-36).

And, while Devine at times stated he did not believe

taxes were deducted from his paycheck, he later testified

that he was aware that taxes were deducted, and this was not

the cause of his belief that he was underpaid. (Doc. # 34-1

at Pl. Depo. 85:4-85:20). To the extent that the credibility

of Devine’s testimony is an issue, such credibility

determinations are the province of the jury. See Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)(“Credibility

determinations, the weighing of the evidence, and the drawing

of legitimate inferences from the facts are jury functions,

not those of a judge, whether he is ruling on a motion for

summary judgment or for a directed verdict.”).

The Court is also mindful that “[i]n this circuit, in

an FLSA action, an employee need not support their testimony

with time records or other documentation.” Long v. Alorica,

Inc., No. CIV.A. 11-00476-KD-C, 2012 WL 4820493, at *6 (S.D.

Ala. Oct. 10, 2012). While Devine lacks documentation to

support the number of overtime hours he worked without pay,

he can rely on his testimony and his average work schedule to

establish the number of overtime hours. See Hernandez, 2014

WL 12531531, at *3 (“As Plaintiff has discredited the accuracy

of Defendants’ time records, Plaintiff’s affidavit that his

average schedule was from 7 A.M. to 7 P.M. each day, Monday

through Friday, with one Saturday each month, is sufficient

to deny Defendants’ Motion.”); Brown, 2011 WL 3957771, at *7

(“Although Plaintiff largely submits her own testimony to

demonstrate the amount and extent of unpaid work, the Court

is satisfied that Plaintiff has produced a just and reasonable

inference as to the amount of unpaid work, and that ‘any

inconsistency or uncertainty in [her] testimony about the

number of unpaid hours of work should be tested by cross-

examination and left for the jury to consider.’” (citation

omitted)). Devine testified that he worked an average of ten

hours per day for five days a week and worked — on average —

one Saturday per month as well. (Doc. # 34-1 at Pl. Depo.

108:4-18; 109:4-22). This is sufficient to move forward to

trial. See Pascual v. Family Boarding Home, Inc., No. 11-

21221-CIV, 2012 WL 2953768, at *6 (S.D. Fla. July 19,

2012)(“[W]hile Plaintiffs Pascual and Fernandez were unable

to testify to the exact number of hours they worked each week,

both Plaintiffs have testified to the number of hours they

generally worked each week and the number of overtime hours

for those weeks. . . . Thus, although Plaintiffs Pascual and

Fernandez are unable to state with precision the number of

uncompensated hours they worked and the days those hours were

worked, pursuant to Allen, they are entitled to demonstrate

at trial the amount and extent of the unpaid overtime as a

‘matter of just and reasonable inference.’”).

In short, there is a genuine issue of material fact

regarding whether Ripa failed to pay Devine for all overtime

hours worked. Thus, the Motion is denied.

Accordingly, it is now

ORDERED, ADJUDGED, and DECREED:

Defendant Ripa & Associates, LLC’s Motion for Summary

Judgment (Doc. # 34) is DENIED.

DONE and ORDERED in Chambers in Tampa, Florida, this

22nd day of October, 2020.

tins Yr. Hnendey Cree

VIRGINIA M. HERNANDEZ’COVINGTON

UNITED STATES DISTRICT JUDGE

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