holding that a new timecard and record-keeping policy implemented by defendant after FLSA suit constituted a subsequent remedial under Rule 407
How later courts described this case
- holding that a new timecard and record-keeping policy implemented by defendant after FLSA suit constituted a subsequent remedial under Rule 407
- affirming the district court’s decision to admit evidence of backpay issued to some plaintiffs in an FLSA case because the evidence did not constitute a subsequent remedial measure under Rule 407
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JOSEPH WEY,
Plaintiff,
v. Case No. 8:19-cv-1314-T-60JSS
CITY OF ST. PETERSBURG,
Defendant.
__________________________________________/
ORDER GRANTING IN PART AND DENYING
IN PART DEFENDANT’S MOTION TO STRIKE
This matter is before the Court on “Defendant, City of St. Petersburg’s, Objection
to Plaintiff’s Response to Summary Judgment Evidence, Motion to Strike and
Incorporated Memorandum of Law,” filed October 15, 2020. (Doc. 56). Plaintiff filed
his response in opposition on October 29, 2020. (Doc. 57). Upon review of the motion,
response, court file, and record, the Court finds as follows:
Background
In January 2007, Plaintiff Joseph Wey began working as a Waste Water
Operator trainee for Defendant City of St. Petersburg, Florida (the “City”), and in 2009
was promoted to Water Reclamation Plant Operator II at the Northwest Waste Water
Facility (“Plant”). During his employment, Plaintiff alleges it was common practice for
operators to arrive up to 15 minutes before their shifts began for shift change meetings,
where the outgoing operator briefed the incoming operator on all that was going on at
the Plant.
To calculate how much time operators were to be paid, the City used the Kronos
timekeeping system, which “round[s] up to an employee’s start time if they clock in
within 15 minutes of the start of their shift… [h]owever, at all other times, the system
rounds down to the tenth of an hour.” (Doc. 40 at 3). Put differently, if an individual is
set to start their shift at 7:00 a.m. and he or she logs in at 6:46 a.m., Kronos will round
up and start the pay period at 7:00 a.m. Furthermore, if an employee’s shift is set to
end at 7:00 p.m. and the employee logs in at 7:05 p.m., Kronos will round down and
that employee will not be paid for the five minutes of overtime worked. This system
was in place and applied to Plaintiff the entire time he was employed by the City until
his termination on February 5, 2018. (Doc. 40-1 at 92). Plaintiff later filed suit against
the City on May 15, 2019, alleging, in part, that the rounding policy violated the Fair
Labor Standards Act (“FLSA”).
Plaintiff further alleges that, after this lawsuit was filed, the City modified its
rounding policy and issued backpay for three years plus liquidated damages to its
employees. To support this claim, Plaintiff submitted an affidavit and exhibits from
Kenneth Jackson, a recently-retired City Waste Water Operator, attesting that he
received backpay and liquidated damages from the City for missed payments under the
old rounding policy. (Doc. 54-7). Plaintiff also submitted Exhibits A and B of the
declaration of Jackie McNeil, a paralegal with the law firm employed by Plaintiff.
Exhibit A shows that the City paid on average $2,779.42 in unpaid wages, exclusive of
liquidated damages, to forty-eight City employees, and Exhibit B contains medical
records from Dr. Neeley, Plaintiff’s former psychiatrist. (Docs. 54-6; 55 at 6-7; 56 at 4).
Based on the information provided and the calculations used by the City, Wey would
have been owed $4,354.28 in unpaid wages plus liquidated damages and has not yet
been reimbursed. The City now moves to strike these filings for violating Rule 56(e) of
the Federal Rules of Civil Procedure and the Federal Rules of Evidence.
Legal Standard
Under Rule 56, an affidavit submitted in support of a motion for summary
judgment “must be made on personal knowledge, set out facts that would be admissible
in evidence, and show that the affiant is competent to testify on the matters stated.”
Fed. R. Civ. P. 56. If an affidavit does not satisfy these requirements, the court may
strike the affidavit or disregard it in whole or in part. Hawthorne v. Baptist Hosp., Inc.,
No. 3:08cv154/MCR/MD, 2010 WL 716539, at *1 (N.D. Fla. Feb. 25, 2010); Brown v.
Gulf Coast Jewish Fam. Servs., Inc., No. 8:10-cv-1749-T-27AEP, 2011 WL 3957771, at
*3 (M.D. Fla. Aug. 9, 2011).
Analysis
The City argues that the affidavit and exhibits from Kenneth Jackson and
Exhibit A of the declaration of Jackie McNeil are inadmissible under Rule 407 of the
Federal Rules of Evidence and should therefore be stricken.
Evidence of New Time-Keeping Policy
Rule 407 provides that evidence of subsequent remedial measures – measures
that “would have made an earlier injury or harm less likely to occur” – are not
admissible to prove “culpable conduct.”1 Fed. R. Evid. 407. Here, Plaintiff himself
states that the new time-keeping policy implemented by the City “approves of the shift-
1 This rule is justified by two policies. First, subsequent remedial measures are generally of
limited probative value. See Fed. R. Civ. P. 407 advisory committee notes. Second, people
should be encouraged to take, or at least not be discouraged from taking, steps to further
public safety. Id.
change meetings at issue in this case” and “properly compensates for them.” (Doc. 57 at
1). Under this new policy, Plaintiff’s injuries, loss of proper overtime pay, would likely
not have occurred, and therefore the new policy constitutes a subsequent remedial
measure. See Torres v. Rock & River Food Inc., 201 F. Supp. 3d 1373, 1374 (S.D. Fla.
2016) (holding that a new timecard and record-keeping policy implemented by
defendant after FLSA suit constituted a subsequent remedial under Rule 407); Holick
v. Cellular Sales of N.Y., LLC, No. 13–CV–738 (NAM/RFT), 2014 WL 4771719, at *2-3
(N.D.N.Y. Sept. 24, 2014) (finding that the defendants' reclassification of their work
force after the plaintiff's FLSA suit was a remedial measure). Accordingly, pages four
and five of Exhibit A to the Declaration of Jackie McNeil (Doc. 54-6), which directly
detail the new timekeeping policy, are due to be stricken to the extent they are offered
for purposes forbidden by Rule 407.2 The Court will disregard these pages when ruling
upon the pending motion for summary judgment.
Evidence of Back Payments
The Court, on the other hand, will not disregard evidence of back payments. The
fact that current employees, and not Plaintiff, received backpay for time
uncompensated under the previous rounding policy would not, standing on its own,
have made Plaintiff’s injuries less likely to occur. See Novick v. Shipcom Wireless, Inc.,
946 F.3d 735, 740 (5th Cir. 2020) (affirming the district court’s decision to admit
evidence of backpay issued to some plaintiffs in an FLSA case because the evidence did
not constitute a subsequent remedial measure under Rule 407). Furthermore, even if
2 This ruling is restricted to the purpose of resolving the pending cross motions for
summary judgment. (Docs. 41 and 52).
these back payments were subsequent remedial measures, Plaintiff appears to offer
this evidence for permissible purposes, such as to show the activity was not de minimis.
The City’s motion to strike the remaining portions of Exhibits A and B of the
Declaration of Jackie McNeil, and the affidavit and exhibits from Kenneth Jackson, is
therefore due to be denied without prejudice.
Medical Records
Finally, the City argues that Exhibit B of the Declaration of Jackie McNeil,
which contains medical records from Plaintiff’s former psychiatrist, Dr. Neeley, should
be stricken because the exhibit contains hearsay since the records have not been
testified to by Dr. Neeley at this time.
Rule 901 of the Federal Rules of Evidence requires evidence to be authenticated
or identified to support a finding that the “item is what the proponent claims it is.”
This may be accomplished through testimony by a witness with knowledge. Fed. R.
Evid. 901(b)(1). However, even if not yet authenticated, hearsay evidence should
nevertheless “be considered on summary judgment… [where] it can be reduced to an
admissible form at trial.” See Brannon v. Finkelstein, 754 F.3d 1269, 1277 n. 2 (11th
Cir. 2014). While Plaintiff’s medical records have yet to be formally authenticated, this
minor defect may easily be cured before or during trial. See Jones v. UPS Ground
Freight, 683 F.3d 1284, 1294 (11th Cir. 2012) (“The most obvious way that hearsay
testimony can be reduced to admissible form is to have the hearsay declarant testify
directly to the matter at trial.”). The City’s motion to strike Exhibit B of the
Declaration of Jackie McNeil is therefore due to be denied.
It is therefore
ORDERED, ADJUDGED, and DECREED:
(1) “Defendant, City of St. Petersburg’s, Objection to Plaintiff's Response to
Summary Judgment Evidence, Motion to Strike and Incorporated Memorandum
of Law” (Doc. 56) is hereby GRANTED IN PART and DENIED IN PART.
(2) The motion to strike pages four and five of Exhibit A in the Declaration of Jackie
McNeil (Doc. 54-6) is GRANTED. The Court will disregard these pages when
ruling upon the motion for summary judgment.
(3) The motion is DENIED WITHOUT PREJUDICE to the extent that it seeks to
strike the declaration and exhibits of Kenneth Jackson (Doc. 54-7), and the
remaining portions of Exhibit A in the Declaration of Jackie McNeil (Doc. 54-6).
(4) The motion is DENIED to the extent that it seeks to strike Exhibit B of the
Declaration of Jackie McNeil.
DONE and ORDERED in Chambers, in Tampa, Florida, this 30th day of
November 2020.
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-TOMBARBER i (assst—‘“‘i‘:;™”
UNITED STATES DISTRICT JUDGE
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