# Devine v. Ripa & Associates, LLC

> District Court, M.D. Florida · October 22, 2020

URL: https://www.frixlaw.com/law-library/cases/10106185

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** October 22, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10106185

## How later opinions describe it (automated extraction)

- 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”

## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10106185. Public record. Not legal advice.