Viviani v. Coffey and Associates Inc

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

NINA VIVIANI, )

)

Plaintiff, )

)

v. )

) Case No. CIV-22-00090-PRW

COFFEY & ASSOCIATES, INC., and CY )

COFFEY, )

)

Defendants. )

ORDER

Before the Court are Plaintiff Nina Viviani’s Motion for Partial Summary Judgment

(Dkt. 48) and Defendants Coffey & Associates, Inc. and Cy Coffey’s Motion for Summary

Judgment and Brief in Support (Dkt. 45). For the reasons given below, Plaintiff’s Motion

is GRANTED in part and DENIED in part, and Defendants’ Motion is likewise

GRANTED in part and DENIED in part.

Background

Defendant Cy Coffey is an officer and director of Defendant Coffey & Associates,

Inc., an Oklahoma corporation that provides landscaping and yard services in the

Oklahoma City area. Defendants employed Plaintiff for just over three years, first as a

landscape foreman and then as a landscape design manager. In December 2018, Plaintiff

entered into a noncompete agreement that prohibited Plaintiff from, among other things,

soliciting Defendants’ customers or using Defendants’ customer list to start a business

providing similar services. Defendants terminated Plaintiff on December 20, 2021.

Plaintiff filed her complaint on January 31, 2022, alleging that Defendants violated

the Fair Labor Standards Act by failing to pay her overtime wages and by terminating her

in retaliation for threatening to report to the Department of Labor an alleged kickback

scheme. In response, Defendants brought a counterclaim for unjust enrichment based on

alleged overpayments for vacation days exceeding allowed time off, as well as various

other state-law counterclaims based on Plaintiff’s alleged violation of the noncompete

agreement. Plaintiff has moved for summary judgment on portions of her unpaid-overtime

claim, and Defendants have moved for summary judgment on both Plaintiff’s unpaid-

overtime claim and her claim for retaliation.

Legal Standard

Federal Rule of Civil Procedure 56(a) requires “[t]he court [to] grant summary

judgment 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.” In deciding whether summary

judgment is proper, the Court does not weigh the evidence and determine the truth of the

matter asserted, but instead determines only whether there is a genuine dispute for trial

before the factfinder.1 The movant bears the initial burden of demonstrating the absence of

a genuine, material dispute and an entitlement to judgment.2 A fact is “material” if, under

the substantive law, it is essential to the proper disposition of the claim.3 A dispute is

1 See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Birch v. Polaris

Indus., Inc., 812 F.3d 1238, 1251 (10th Cir. 2015).

2 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

3 Anderson, 477 U.S. at 248; Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670

(10th Cir. 1998).

“genuine” if there is sufficient evidence on each side so that a rational trier of fact could

resolve the issue either way.4

If the movant carries its initial burden, the nonmovant must then assert that a

material fact is genuinely disputed and must support the assertion by “citing to particular

parts of materials in the record, including depositions, documents, electronically stored

information, affidavits or declarations, stipulations (including those made for purposes of

the motion only), admissions, interrogatory answers, or other materials”; by “showing that

the materials cited [in the movant’s motion] do not establish the absence . . . of a genuine

dispute”; or by “showing . . . that an adverse party [i.e., the movant] cannot produce

admissible evidence to support the fact.”5 The nonmovant does not meet its burden by

“simply show[ing] there is some metaphysical doubt as to the material facts”6 or theorizing

a plausible scenario in support of its claims. Instead, “the relevant inquiry is whether the

evidence presents a sufficient disagreement to require submission to a jury or whether it is

so one-sided that one party must prevail as a matter of law.”7 And as the Supreme Court

explained, “the mere existence of some alleged factual dispute between the parties will not

defeat an otherwise properly supported motion for summary judgment,”8 since “[w]here

4 Anderson, 477 U.S. at 248; Adler, 144 F.3d at 670.

5 Fed. R. Civ. P. 56(c)(1); see also Celotex Corp., 477 U.S. at 322.

6 Neustrom v. Union Pac. R.R. Co., 156 F.3d 1057, 1066 (10th Cir. 1998) (quoting

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).

7 Id. (quoting Anderson, 477 U.S. at 251–52); Bingaman v. Kan. City Power & Light Co.,

1 F.3d 976, 980 (10th Cir. 1993)).

8 Liberty Lobby, 477 U.S. at 247–48.

the record taken as a whole could not lead a rational trier of fact to find for the nonmoving

party, there is no ‘genuine issue for trial.’”9 Thus, “[w]hen opposing parties tell two

different stories, one of which is blatantly contradicted by the record, so that no reasonable

jury could believe it, a court should not adopt that version of the facts for purposes of ruling

on a motion for summary judgment.”10

When the nonmoving party has the ultimate burden of persuasion at trial, the

moving party “has both the initial burden of production on a motion for summary judgment

and the burden of establishing that summary judgment is appropriate as a matter of law.”11

“The moving party may carry its initial burden either by producing affirmative evidence

negating an essential element of the nonmoving party’s claim, or by showing that the

nonmoving party does not have enough evidence to carry its burden of persuasion at

trial.”12 “Once the moving party points out the absence of evidence to create a ‘genuine

issue’ of a ‘material fact’ on which the non-moving party bears the burden of proof at trial,

. . . [t]he non-moving party must set forth specific facts showing there is a genuine issue

for trial.”13

9 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986).

10 Scott v. Harris, 550 U.S. 372, 381 (2007).

11 Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2002), as amended

on denial of re’g, (Jan. 23, 2003).

12 Id.

13 Otis v. Canadian Valley-Reeves Meat Co., 884 F. Supp. 446, 449–50 (W.D. Okla. 1994),

aff’d, 52 F.3d 338 (10th Cir. 1995) (quoting Matsushita Elec. Indus. Co., 475 U.S. at 586).

Discussion

The Court will address Plaintiff’s motion for partial summary judgment before

turning to Defendants’ motion for summary judgment.

I. Plaintiff’s Motion for Partial Summary Judgment.

The Fair Labor Standards Act of 1938 (“FLSA”) requires employers to pay overtime

to nonexempt employees when they work more than forty hours a week. But an employee

is exempt, and thus not entitled to overtime compensation, if she works “in a bona fide

executive, administrative, or professional capacity,” or in an outside-sales position, as those

terms are defined by agency regulations.14 The parties dispute whether Plaintiff was an

exempt employee and thus whether she is entitled to overtime compensation under the

FLSA.

A. Professional-Capacity Exemption.

An employee must meet certain requirements to fall within the “bona fide

professional capacity” exemption. These requirements are that (1) the employee is

“compensated on a salary or fee basis”; (2) the compensation is “at a rate of not less than

$684 per week”; and (3) the employee’s “primary duty is the performance of work . . .

[r]equiring knowledge of an advanced type in a field of science or learning customarily

acquired by a prolonged course of specialized intellectual instruction” or “[r]equiring

invention, imagination, originality or talent in a recognized field of artistic or creative

14 29 U.S.C. § 213(a)(1).

endeavor.”15 The first requirement is the “salary-basis test,” the second is the “salary-level

test,” and the third is the “duties test.”16 It is the employer’s burden to prove that an

employee qualifies as an exempt professional, and “because the FLSA is a remedial statute,

this exemption must be narrowly construed.”17

Plaintiff argues that Defendants cannot meet their burden of proving the exemption

applies. Specifically, Plaintiff says that she was not paid on a salary basis and that her

compensation was less than the required $684 per week.18

1. Salary-Basis Test.

An employee is paid on a salary basis if she “regularly receives each pay period on

a weekly, or less frequent basis, a predetermined amount constituting all or part of [her]

compensation, which amount is not subject to reduction because of variations in the quality

or quantity of the work performed.”19 As a general rule, “an exempt employee must receive

the full salary for any week in which the employee performs any work without regard to

15 29 C.F.R. § 541.300(a).

16 See Helix Energy Sols. Grp., Inc. v. Hewitt, 143 S. Ct. 677, 678 (2023).

17 Dobrosmylov v. DeSales Media Grp., Inc., 532 F. Supp. 3d 54, 58 (E.D.N.Y. 2021)

(quoting Young v. Cooper Cameron Corp., 586 F.3d 201, 204 (2d Cir. 2009)). See Chessin

v. Keystone Resort Mgmt., Inc., 184 F.3d 1188, 1192 (10th Cir. 1999) (“In a case involving

the FLSA, an employer bears the burden of proving . . . the applicability of an FLSA

exemption; we must construe the exemption narrowly against the employer.”).

18 Plaintiff’s motion doesn’t address the duties test, as she “recognizes that there may be

fact issues that would prevent a finding as a matter of law on that prong.” Pl.’s Mot. (Dkt.

48), at 17 n.4.

19 Ellis v. J.R.’s Country Stores, Inc., 779 F.3d 1184, 1188 (10th Cir. 2015).

the number of days or hours worked.”20 But an employer may deduct from an exempt

employee’s paycheck when she “is absent from work for one or more full days for personal

reasons, other than sickness or disability.”21 This means that “[s]ince exempt employees

are not paid by the hour, the FLSA’s implementing regulations prohibit employers from

docking their pay for working less than a full eight-hour day.”22 So, for example, “if an

exempt employee is absent for one and a half days for personal reasons, the employer can

deduct only for the one full-day absence.”23

In contrast to the permissible deductions described above, impermissible deductions

will cause the employer to “lose the exemption if the facts demonstrate that the employer

did not intend to pay employees on a salary basis.”24 An employer’s intent to not pay on a

salary basis “turns on whether the employer has an ‘actual practice of making improper

deductions.’”25 This is because the employer’s “‘actual practice’ of improperly deducting

pay vitiates the intent to pay a salary under the salary-basis test.”26 In such a case, “the

exemption is lost during the time period in which the improper deductions were made.”27

20 29 C.F.R. § 541.602(a)(1).

21 Id. § 541.602(b)(1) (emphasis added).

22 Ellis, 779 F.3d at 1188.

23 29 C.F.R. § 541.602(b)(1).

24 Ellis, 779 F.3d at 1188.

25 Id.

26 Id. at 1189 (quoting 29 C.F.R. § 541.603(b)).

27 Id.

In determining whether an employer has an “actual practice of making improper

deductions,” the FLSA’s implementing regulations list five non-exhaustive factors for

courts to consider:

the number of improper deductions, particularly as compared to the number

of employee infractions warranting discipline; the time period during which

the employer made improper deductions; the number and geographic

location of employees whose salary was improperly reduced; the number and

geographic location of managers responsible for taking the improper

deductions; and whether the employer has a clearly communicated policy

permitting or prohibiting improper deductions.28

Plaintiff argues that Defendants regularly made partial-day deductions to her

paychecks. The alleged impermissible deductions occurred in three pay periods in 201929

and in five pay periods during the final two months of Plaintiff’s three-year employment:30

• January 6, 2019–January 12, 2019. Plaintiff was paid $605.77 for the week,

which Plaintiff says reflects a deduction of 2.5 days.

• May 26, 2019–June 1, 2019. Plaintiff was again paid $605.77 for the week,

which Plaintiff says reflects a deduction of 2.5 days.

• July 14, 2019–July 20, 2019. For the third and final deduction in 2019,

Plaintiff was again paid $605.77 for the week, which Plaintiff says reflects a

deduction of 2.5 days.

28 29 C.F.R. § 541.603(a).

29 Plaintiff’s weekly paycheck in 2019 was supposed to be $1,009.62, which is an hourly

rate of $25.24 based on a forty-hour week.

30 Plaintiff’s weekly paycheck for the relevant times in 2021 was supposed to be $1,153.85,

which is an hourly rate of $28.85 based on a forty-hour week.

• October 31, 2021–November 6, 2021. Plaintiff alleges she missed a half day

of work on October 29, 2021, and that Defendants deducted $115.40 from

her paycheck for the following week.31

• November 7, 2021–November 13, 2021. Plaintiff alleges she didn’t work on

November 8 and then worked part of November 9. As a result, Defendants

deducted $375.05 (thirteen hours total) from her paycheck.

• November 14, 2021–November 20, 2021. Plaintiff worked five days but

argues that Defendants improperly deducted a full day from her paycheck.

She also alleges that Defendants deducted an additional $148.31 because

Plaintiff performed a job at a client’s house “incorrectly.”

• November 28, 2021–December 4, 2021. Plaintiff alleges that Defendants

deducted 2.5 hours from her paycheck for time spent on jury duty.32

• December 5, 2021–December 11, 2021. Payment records show that Plaintiff

received a paycheck for only $302.89.33

At least as of 2021, Defendants calculated Plaintiff’s paycheck deductions based on

her hourly rate.34 And though Plaintiff’s 2018 employment contract specifies that

Defendants would deduct $156 per day for time off from work,35 the evidence would

support an inference that the 2019 deductions were also based on Plaintiff’s hourly rate.

To break this down, Plaintiff’s weekly paycheck in 2019 was $1,009.62, which equates to

31 This amount is based on a calculated $28.85 hourly rate multiplied by four hours. The

parties do not dispute that this is the correct hourly rate for the relevant time period.

32 Defendants contend that this 2.5-hour deduction was for personal vacation, not jury duty.

Either way, it is a partial-day deduction.

33 Plaintiff also alleges that for the week of December 12, 2021, through December 18,

2021, she was not paid her final paycheck on time and was “instead only paid after signing

a ‘settlement release.’” Pl.’s Mot. (Dkt. 48), at 11. But she does not otherwise allege that

an improper deduction occurred during this week.

34 See Pl.’s Mot. (Dkt. 48), at 9; Defs.’ Resp. (Dkt. 55), at 9.

35 Pl.’s Mot. (Dkt. 48), Ex. 7.

$25.24 per hour. If calculated using this hourly rate, a full-day deduction would have been

$201.92 ($25.24 x 8 hours), or $403.84 for two days. Plaintiff seems to assume, however,

that the $156-per-day deduction applied in 2019, asserting that a paycheck of $605.77—a

$403.85 difference from her full paycheck of $1,009.62—reflects an impermissible two-

and-a-half-day deduction (($1,009.62 – $605.77) ÷ $156 = 2.59).36 But if calculated based

on the $25.24 hourly rate, a $605.77 paycheck reflects an almost exact two-day deduction

($25.24 x 8 hours x 2 days = $403.84). In light of this issue, there is a genuine dispute

about whether the 2019 deductions were impermissible, partial-day deductions under the

FLSA.

Turning to the 2021 deductions, Defendants offer no argument as to why these

deductions were permissible.37 And although an employee’s exempt status isn’t lost when

an employer makes “isolated or inadvertent” deductions and then “reimburses the

employee[],” Defendants do not show that they reimbursed Plaintiff for these deductions.38

Nor do the parties point to any “clearly communicated policy permitting or prohibiting

improper deductions.”39 The Court thus finds that these 2021 deductions over five pay

36 See Pl.’s Resp. (Dkt. 56), Ex. 1, at 87–88.

37 The only exception is for the deduction based on Plaintiff “incorrectly” performing a job

at a client’s house. Defendants argue that Plaintiff “offered” and “agreed” that she would

“bear the cost of the incorrect planting 50/50,” Defs.’ Resp. (Dkt. 55), Ex. 2, but Plaintiff

denies ever having agreed to this deduction, Pl.’s Mot. (Dkt 48), at 10. The Court considers

this a genuine dispute of material fact related to the additional $148.31 deduction.

38 Ellis, 779 F.3d at 1189 (quoting 29 C.F.R. § 541.603(c)).

39 See 29 C.F.R. § 541.603(a). Plaintiff cites deposition testimony from Natalie Coffey for

the proposition that Defendants had a “policy” of making impermissible, partial-day

deductions. See Dkt. 59, at 107. Indeed, Ms. Coffey states that Defendants would make

partial-day deductions if Plaintiff asked for less than a full day off from work. Id. But

periods were impermissible under the FLSA and demonstrate that Defendants had an

“actual practice of making improper deductions.” Defendants are “stripped of the

exemption because its ‘actual practice’ of improperly deducting pay vitiates the intent to

pay a salary under the salary-basis test.”40 Consequently, Defendants lose the exemption

“during the time period in which the improper deductions were made,” i.e., from October

31, 2021, through November 20, 2021, and November 28, 2021, through December 11,

2021.41

2. Salary-Level Test.

Plaintiff next argues that Defendants cannot satisfy the salary-level test because

“[their] own records conclusively establish that Plaintiff received less than the required

Plaintiff has not pointed to any evidence that a “policy permitting or prohibiting improper

deductions” was ever “clearly communicated,” either orally or in written form, and the

only partial-day deductions that Plaintiff cites are those that occurred in the final two

months of her employment.

40 Ellis, 779 F.3d at 1189.

41 See id. (quoting 29 C.F.R. § 541.603(b)) (emphasis added); see also Malphurs v. Active

Prod. & Design, Inc., No. 1:17-CV-03303-CAP, 2018 WL 6521480, at *3 (N.D. Ga. Oct.

22, 2018) (“An actual practice of making improper deductions generally satisfies the intent

requirement, but the exemption is lost only during the time when the improper deductions

were made.”); Hansberger v. L’Italia Rest., LLC, No. 5:16-CV-00056, 2017 WL 3923979,

at *3 (W.D. Va. Sept. 7, 2017) (“[E]ven if the facts demonstrated that [the employer] had

an ‘actual practice’ of improper deductions, it would only lose the exemption for the week

of January 23, 2016.”); Beauperthuy v. 24 Hour Fitness USA, Inc., 772 F. Supp. 2d 1111,

1133 (N.D. Cal. 2011), abrogated on other grounds by Campbell v. City of Los Angeles,

903 F.3d 1090 (9th Cir. 2018) (“Under Department of Labor regulations, even if an

employer incorrectly docks an exempt employee’s salary, it loses the exemption only for

that workweek, not for all time.”). The Court finds no support for Plaintiff’s argument that,

based on these improper deductions, Defendants lose the exemption for the duration of her

three-year employment.

guaranteed ‘minimum’ of $684.00.”42 To qualify as an exempt employee under the FLSA,

“an employee must be compensated on a salary basis at a rate of not less than $684 per

week.”43 But Plaintiff’s salary-level argument targets only those weeks in which

Defendants made impermissible deductions from her paycheck.44 Because the Court has

already concluded that Defendants lost the exemption for those weeks under the salary-

basis test, it need not address the parties’ arguments concerning salary level.

B. Good-Faith Defense.

For violations of the FLSA’s overtime-compensation provision, 29 U.S.C. § 216(b)

provides that an employer “shall be liable to the employee or employees affected in amount

of their . . . unpaid overtime compensation . . . and in an additional equal amount as

liquidated damages.” That provision “requires that liquidated damages be awarded as a

matter of right”45 unless “the employer shows to the satisfaction of the court that the act or

omission giving rise to such action was in good faith and that he had reasonable grounds

for believing that his act or omission was not a violation” of the FLSA.46

Plaintiff asks the Court to find that Defendants didn’t act in good faith and had no

reasonable grounds for believing their actions were permissible under the relevant FLSA

provisions. But in a case for unpaid overtime, the good-faith defense (and any award of

42 Pl.’s Mot. (Dkt. 48), at 20.

43 29 C.F.R. § 541.600.

44 Pl.’s Mot. (Dkt. 48), at 11.

45 Lorillard v. Pons, 434 U.S. 575, 582 n.8 (1978).

46 29 U.S.C. § 260.

liquidated damages) assumes there was an underlying violation of the FLSA’s overtime

provision47—i.e., a nonexempt employee worked unpaid overtime, and the employer knew

or should have known about the overtime.48 For reasons more fully explained below in

relation to Defendants’ motion for summary judgment, genuine issues of material fact

remain as to whether Plaintiff worked more than forty hours during a week in which an

exemption didn’t apply. It is thus premature to decide whether Defendants may rely on the

good-faith defense.

C. Outside-Sales Exemption.

The FLSA’s overtime-compensation requirement doesn’t apply to “any employee

employed . . . in the capacity of outside salesman.”49 An employee is “employed in the

capacity of an outside salesman” when the employee’s primary duty is (1) making sales or

(2) “obtaining orders or contracts for services,” and who “customarily and regularly”

performs either of those primary duties “away from the employer’s place or places of

business.”50 “[T]he test is whether the person is actually engaged in activities directed

47 29 U.S.C. § 216(b) (“Any employer who violates the provisions of . . . section 207 of

this title shall be liable to the employee or employees affected in the amount of their . . .

unpaid overtime compensation . . . and in an additional equal amount as liquidated

damages.”) (emphasis added).

48 Bailey v. TitleMax of Georgia, Inc., 776 F.3d 797, 801 (11th Cir. 2015) (“An unpaid-

overtime claim has two elements: (1) an employee worked unpaid overtime, and (2) the

employer knew or should have known of the overtime work.”).

49 29 U.S.C. § 213(a)(1).

50 29 C.F.R. § 541.500.

toward the consummation of his own sales, at least to the extent of obtaining a commitment

to buy from the person to whom he is selling.”51

Again, it is Defendants’ burden to prove that Plaintiff “fit[s] plainly and

unmistakably within the exemption’s terms.”52 They have not done so here. In response to

Plaintiff’s motion, Defendants provide a general narrative of Plaintiff’s job duties. But their

statement that “[t]he undisputed facts of this case show Plaintiff was involved in making

sales” is conclusory. And they do not otherwise “cit[e] to particular parts of materials in

the record” to support the proposition that their Landscape Design Manager’s primary

duties were in fact making sales or obtaining contracts for services away from Defendants’

place of business.53 The Court thus finds that Defendants cannot rely on the outside-sales

exemption.

D. Record Keeping.

The FLSA requires employers to keep employee records related to “wages, hours,

and other conditions and practices of employment.”54 But the extent of an employer’s

record-keeping obligations depends on whether the employee is exempt or nonexempt

under the FLSA.55 As explained below, a genuine issue of material fact remains as to

51 Clements v. Serco, Inc., 530 F.3d 1224, 1228 (10th Cir. 2008) (quoting 29 C.F.R. §

541.504(b)(2)).

52 Id. at 1227.

53 See Fed. R. Civ. P. 56(c)(1); see also Celotex Corp., 477 U.S. at 322.

54 29 U.S.C. § 211(c).

55 See 29 C.F.R. § 516.3; Gonzalez v. Sara, Inc., No. 4:12CV1586 CDP, 2014 WL 28662,

at *3 (E.D. Mo. Jan. 2, 2014) (“The type of data required for exempt employees and non-

exempt employees is different.”).

whether Plaintiff was ever exempt under the FLSA’s professional-capacity exemption.56

But as already concluded, the exemption didn’t apply during the weeks in which they made

impermissible deductions to Plaintiff’s paychecks in 2021. So Defendants were obligated

to maintain certain records for Plaintiff as an overtime-eligible employee.

The FLSA “requires employers to record overtime-eligible employees’ daily and

weekly hours, hourly rate of pay, daily or weekly straight-time earnings and overtime pay,

and total wages per pay period.”57 The parties dispute, however, whether Defendants

maintained a complete record of Plaintiff’s work hours and whether Plaintiff failed to

submit accurate timesheets.58 For example, while Plaintiff claims that she was required to

record only her billable time and that besides her self-recorded timesheets, “no other record

of her hours worked exists,”59 Defendants respond that they also tracked Plaintiff’s hours

through her use of company vehicles and that Plaintiff didn’t comply with her time-

reporting duties.60 The Court thus finds that there is a genuine dispute of material fact

related to Defendants’ compliance with the FLSA’s record-keeping requirements during

the weeks in which Plaintiff was eligible for overtime compensation.

56 Plaintiff alleges that Defendants failed to maintain billable records for multiple time

periods before March 2021. Pl.’s Mot. (Dkt. 48), at 7. But “[s]ince I cannot resolve

[Plaintiff’s] exempt status at this stage, I also cannot determine whether [D]efendants

violated the FLSA’s record-keeping requirements.” See Gonzalez, 2014 WL 28662 at *3.

57 Acosta v. Min & Kim, Inc., 919 F.3d 361, 365 (6th Cir. 2019).

58 See Pl.’s Mot. (Dkt. 48), at 5–7; Defs.’ Resp. (Dkt. 55), at 4–6.

59 Pl.’s Mot. (Dkt. 48), at

60 Defs.’ Resp. (Dkt. 55), at 4–5.

For the foregoing reasons, Plaintiff’s motion for partial summary judgment is

GRANTED in part and DENIED in part.

II. Defendants’ Motion for Summary Judgment.

Defendants seek summary judgment on Plaintiff’s claim for unpaid wages and

overtime, as well as on Plaintiff’s claim for retaliation. For the reasons given below, the

motion is GRANTED in part and DENIED in part.

A. Unpaid-Overtime Claim.

Defendants argue that Plaintiff’s unpaid-overtime claim fails because she didn’t

work uncompensated overtime, and even if she did, they didn’t have actual or constructive

knowledge of her overtime work. They also assert that they were not required to pay

overtime because Plaintiff was properly classified as an exempt employee under the

FLSA’s professional-capacity exemption.

1. Overtime.

Plaintiff’s unpaid-overtime claim has two elements: (1) that she worked unpaid

overtime and (2) that Defendants “knew or should have known of the overtime work.”61

Plaintiff need only produce “sufficient evidence to show the amount and extent of that

work as a matter of just and reasonable inference.”62 The burden then “shifts to the

61 Bailey v. TitleMax of Georgia, Inc., 776 F.3d 797, 801 (11th Cir. 2015).

62 Courtright v. Bd. of Cnty. Comm’rs of Payne Cnty., Okla., No. CIV-08-230-D, 2011 WL

2181954, at *10 (W.D. Okla. June 3, 2011) (“To prevail on his claim that he is entitled to

damages for unpaid overtime compensation, [the plaintiff] need only prove “that he has in

fact performed work for which he was improperly compensated” and produce “sufficient

evidence to show the amount and extent of that work as a matter of just and reasonable

inference.”) (quoting Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946)).

employer to produce evidence of the precise amount of work performed or to negate the

reasonableness of the inference drawn from the employee’s evidence.”63

Plaintiff has not produced evidence sufficient to create a “just and reasonable

inference” that she worked overtime in any week preceding October 31, 2021. That is

because Plaintiff relies solely on her own self-serving declaration and deposition

testimony, which state that she “generally worked at least forty-seven (47) hours per week,

but on average fifty (50) hours a week.”64 But she provides no other evidence—such as

timesheets, coworker depositions or affidavits, etc.—to support this statement, which is “at

best conclusory.”65 Plaintiff also asserts that Defendants knew or should have known of

her regular overtime work because they “texted and called her both during and outside

Plaintiff’s scheduled hours” and “witnessed Plaintiff working.”66 But again, Plaintiff

merely relies on her own deposition testimony, and she doesn’t connect her statements with

63 Donovan v. Simmons Petroleum Corp., 725 F.2d 83, 85 (10th Cir. 1983) (quoting

Anderson, 328 U.S. at 687–88).

64 Dkt. 49, Ex. 2, at 1; Garrett v. Hewlett–Packard Co., 305 F.3d 1210, 1213 (10th Cir.

2002) (“We do not consider ‘conclusory and self-serving affidavits.’”) (citation omitted).

65 Ellis, 779 F.3d at 1203 (internal quotations omitted) (concluding that it would require “a

huge dollop of conjecture” to find a genuine issue of material fact when the plaintiff merely

“aver[red] that she worked more than her time sheets indicated” and that she “knew” she

“did more work than 50 hours during [the relevant time period]”); Ellis v. J.R.’s Country

Stores, Inc., No. 12-CV-01916-CMA-KLM, 2013 WL 3661665, at *4 (D. Colo. July 12,

2013), aff’d, 779 F.3d 1184 (10th Cir. 2015) (“[The plaintiff] has provided no evidence—

such as an affidavit from another manager or coworker—to substantiate her assertions of

having worked more than [the defendant’s] timesheets indicate.”).

66 Pl.’s Resp. (Dkt. 56), at 10. The assertion that Plaintiff’s employer texted or called

outside her regularly scheduled hours tells us nothing about how many hours she worked

in a given week, nor does the mere claim that Defendants “witnessed Plaintiff working”

indicate whether she in fact worked more than forty hours.

any evidence that she worked more than forty hours in those weeks. The Court will not

credit Plaintiff’s “bald assertion[s]” that she worked on average fifty hours per week,67

especially since she provides no other corroborating evidence in addition to her self-serving

declaration and deposition transcript.68

The only corroborating evidence Plaintiff provides is her timesheets for weeks

between October 31, 2021, and December 11, 2021—the weeks in which Defendants made

impermissible deductions to her paychecks. Though Plaintiff doesn’t allege an

approximate amount of overtime she worked during those weeks (or undertake to calculate

the precise hours), the Court has reviewed the timesheets and concludes that there is a

genuine issue of material fact regarding whether Plaintiff worked more than forty hours.

Defendants seek to chip away at Plaintiff’s timesheets, alleging that she made personal

phone calls and sent non-work-related emails that brought her under the forty-hour

threshold.69 But this at best raises a genuine dispute about how Plaintiff spent her day and

67 11 Moore’s Federal Practice § 56.41[1][c] (3d ed. 2023) (“Merely restating a pleading,

submitting new pleadings, or making bald assertions in a legal memorandum, or even in

an affidavit, will not enable the nonmovant to withstand a properly supported summary

judgment motion.”).

68 See, e.g., Courtright, 2011 WL 2181954, at *10 (“Upon consideration of the summary

judgment record, the Court finds that [the employee] has not identified sufficient facts or

evidence to support his [unpaid-overtime] claim, even when he is given the benefit of all

reasonable inferences. Aside from the county clerk’s records, discussed above, [the

employee] relies solely on his own testimony. . . . [O]n the summary judgment record

presented, the Court finds that [the employee] has failed to demonstrate facts on which a

finding of accrued overtime hours could reasonably be based.”); United States v.

$21,055.00 in U.S. Currency, 778 F. Supp. 2d 1099, 1102–03 (D. Kan. 2001) (“Nor is a

conclusory, self-serving affidavit by a claimant sufficient to create a genuine issue of

material fact . . . without corroborating documentation.”).

69 Defs.’ Mot. (Dkt. 45), at 18.

whether certain periods were compensable under the FLSA. The former question is one for

the jury, not the Court.

In sum, Plaintiff’s unpaid-overtime claim is limited to the weeks in which

Defendants made improper deductions to her paychecks, as discussed above.

2. Professional-Capacity Exemption.

An employee is “exempt” under the FLSA if she works “in a bona fide executive,

administrative, or professional capacity”70 and is “compensated on a salary or fee basis

. . . at a rate of not less than $684 per week.”71 Defendants argue that they properly

classified Plaintiff as an exempt employee, relying on the FLSA’s professional-capacity

exemption.72 The professional-capacity exemption is limited to individuals whose primary

duties (1) “[r]equir[e] knowledge of an advanced type in a field of science or learning

customarily acquired by a prolonged course of specialized intellectual instruction,” or (2)

whose primary duties “[r]equir[e] invention, imagination, originality or talent in a

recognized field of artistic or creative endeavor.”73 The regulations define the latter

category as “creative professionals.”74

70 29 U.S.C. § 213(a)(1).

71 29 C.F.R. § 541.300(a).

72 Because the Court has already concluded that Defendants lost the exemption during the

weeks in which they made impermissible deductions to Plaintiff’s paychecks, and because

Plaintiff’s unpaid-overtime claim is now limited to those weeks, the professional-capacity

exemption is relevant only for determining whether Defendants violated the FLSA’s

record-keeping requirements earlier in Plaintiff’s employment.

73 29 C.F.R. § 541.300(a)(2)(i)–(ii).

74 29 C.F.R. § 541.302(a).

Defendants have established that, before it began making impermissible deductions

in the final two months of Plaintiff’s employment, there is no genuine dispute that

Plaintiff’s weekly pay exceeded the statutorily required minimum of $684 per week.75 But

although Plaintiff’s pay stubs show that she was typically paid a “predetermined amount”

that was “not subject to reduction because of variations in quality or quantity of the work

performed,”76 she points to several weeks in 2019 in which she argues that Defendants

applied impermissible, partial-day deductions to her paychecks.77 As noted above,

however, it is unclear in those weeks whether Defendants applied a $156-per-day deduction

(as contemplated in Plaintiff’s 2018 employment contract) or a deduction based on her

hourly rate ($25.24 per hour, or $201.92 per day). This raises a genuine issue of material

fact about whether Defendants satisfied the salary-basis test for those specific time periods

in 2019.

There is also a genuine issue of material fact related to Plaintiff’s status as an exempt

creative professional. For Plaintiff to be an exempt creative professional, Defendants must

show that her primary duties consisted of “the performance of work requiring invention,

imagination, originality or talent in a recognized field of artistic or creative endeavor as

opposed to routine mental, manual, mechanical or physical work.”78 Such recognized fields

75 As discussed above, because Defendants lost the exemption for the weeks in which they

made impermissible deductions in October through December 2021, the Court’s salary-

level conclusion is confined to Plaintiff’s employment preceding those weeks.

76 29 C.F.R. § 541.602(a).

77 Pl.’s Resp. (Dkt. 56), at 5.

78 29 C.F.R. § 541.302(a).

include, for example, “music, writing, acting and the graphic arts.”79 And as for “invention,

imagination, originality or talent,” the regulations recognize that “[t]he duties of employees

vary widely,” such that “[d]etermination of exempt creative professional status . . . must

be made on a case-by-case basis.”80 In short, a court must distinguish “work requiring

invention, imagination, originality or talent” from “work that primarily depends on

intelligence, diligence and accuracy.”81

According to Defendants, Plaintiff’s job duties place her squarely within the

creative-professional exemption. They claim that, as the Landscape Design Manager, her

primary job duties were to design landscape projects for customers, “relying on her own

creativity, talent, and experience” and “taking into consideration the customer’s

preferences and aesthetic considerations.”82 In support, Defendants point to Plaintiff’s

deposition testimony in which she explains that she created a custom, original design for

each customer.83 Plaintiff responds, however, that she “depend[ed] primarily on her

intelligence, diligence, and willing [sic] to adapt other individuals [sic] designs to the

specific landscaping needs of her clients and the Oklahoma climate.”84 Rather than creating

79 Id. § 541.302(b).

80 Id. § 541.302(c).

81 Id. §§ 541.302(a), (c).

82 Defs.’ Mot. (Dkt. 45), at 15.

83 Id. at 6.

84 Pl.’s Resp. (Dkt. 56), at 23.

original designs, Plaintiff says that she merely “search[ed] the internet for landscaping

ideas to implement for Defendants’ clients.”85

Whether Plaintiff’s primary job duties fall within the creative-professional

exemption is a “fact-intensive inquiry,”86 and the answer depends on the level of

“invention, imagination, originality or talent” required to perform those duties.87 In light

of the parties’ conflicting narratives and the evidence in their briefs, the Court concludes

that there is a genuine issue of material fact that precludes summary judgment on this issue.

3. Damages.

Defendants also argue that “Plaintiff was fully compensated” and that she “cannot

prove damages” related to her unpaid-overtime claim.88 This is because, Defendants say,

“Plaintiff was overpaid under [their] policy and kept this overpayment.”89 But Defendants

fail to support their argument by pointing to any evidence in the record. The Court thus

denies summary judgment on damages.

B. Retaliation Claim.

In addition to Plaintiff’s unpaid-overtime claim, Defendants seek summary

judgment on Plaintiff’s claim for retaliation. FLSA retaliation claims follow the shifting

85 Id. at 24.

86 Dobrosmylov, 532 F. Supp. 3d at 59.

87 29 C.F.R. § 541.302(a). See Dobrosmylov, 532 F. Supp. 3d at 61 (“[I]t is not the

employee’s general field that determines the employee’s status––what matters is what this

particular employee’s primary duties actually were.”) (internal quotations and citation

omitted).

88 Defs.’ Mot. (Dkt. 45), at 19.

89 Id.

burden-of-proof scheme established in McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973).90 Under that scheme, a plaintiff must first establish a prima facie case of

retaliation.91 To establish a prima facie case of retaliation under the FLSA, a plaintiff must

show (1) that she “engaged in activity protected by the FLSA”; (2) that she “suffered

adverse action by the employer subsequent to or contemporaneous with such employee

activity”; and (3) that “a causal connection existed between the employee’s activity and the

employer’s adverse action.”92

Once a plaintiff establishes a prima facie case, the burden then shifts to the

defendant “to articulate a legitimate, nondiscriminatory reason for the adverse action.”93

The defendant “need not prove the absence of retaliatory motive, but only produce

evidence that would dispel the inference of retaliation by establishing the existence of a

legitimate reason.”94 If the defendant articulates such a reason, “the burden then shifts back

to the plaintiff to show that there is a genuine dispute of material fact as to whether the

employer’s proffered reason for the challenged action is pretextual.”95

It is undisputed that Plaintiff “engaged in activity protected by the FLSA” when she

reported to Defendants an alleged illegal kickback scheme and that she subsequently

90 Conner v. Schnuck Markets, Inc., 121 F.3d 1390, 1394 (10th Cir. 1997).

91 Id.

92 Id.

93 Id. at 1395.

94 Burrus v. United Tel. Co. of Kansas, 683 F.2d 339, 343 (10th Cir. 1982) (internal

quotations and citation omitted).

95 Conner, 121 F.3d at 1394 (internal quotations and citation omitted).

“suffered adverse action” (her termination). The parties’ dispute thus boils down to

causation. A causal connection “may be demonstrated by evidence of circumstances that

justify an inference of retaliatory motive, such as protected conduct closely followed by

adverse action.”96 And “[u]nless the termination is very closely connected in time to the

protected conduct, the plaintiff will need to rely on additional evidence beyond mere

temporal proximity to establish causation.”97 An employee’s “discharge is unlawful [under

the FLSA] only if it would not have occurred but for the [employer’s] retaliatory intent.”98

Plaintiff has carried her burden to establish a prima facie case of retaliation. As to

causation, Defendants assert that Plaintiff’s “proximity argument fails” because they had

“already determined to fire Plaintiff” before she reported alleged illegal kickbacks. But this

assertion is conclusory, and they point only to a self-serving affidavit in support.99 It is

undisputed that Plaintiff’s termination occurred within the same month that she reported to

Defendants alleged illegal kickbacks.100 This “temporal proximity” is sufficient to “justify

96 Id. at 1395.

97 Id.

98 Id. at 1399.

99 Defs.’ Mot. (Dkt. 45), at 10. See Garrett, 305 F.3d at 1213 (“We do not consider

‘conclusory and self-serving affidavits.’”) (citation omitted).

100 Plaintiff does not dispute Defendants’ assertion that she reported the alleged illegal

kickbacks on December 10, 2021, and Defendant’s exhibits show that she was terminated

on December 20, 2021. See Defs.’ Mot. (Dkt. 45), Ex. 10, at 3.

an inference of retaliatory motive.”101 The burden thus shifts to Defendants to provide a

“legitimate, nondiscriminatory reason” for terminating Plaintiff.102

Defendants’ proffered reasons meet this burden. These reasons include Plaintiff

allegedly (1) soliciting employment from a customer, (2) exceeding her paid-time-off

allotment, and (3) failing to follow-up with a disgruntled customer who refused to pay a

$6,000 bill. In support, Defendants have produced an Order of Decision from the

Oklahoma Employment Security Commission indicating that Plaintiff was terminated for

her own misconduct.103 In light of these explanations and related exhibits, Plaintiff

“stipulate[s] that Defendants have produced evidence to satisfy the second prong” of the

McDonnell Douglas framework requiring a legitimate, nondiscriminatory reason for her

termination.104 Because Defendants have carried their burden, “the presumption of

discrimination created by the McDonnell Douglas framework drops from the case, and the

factual inquiry proceeds to a new level of specificity.”105 Plaintiff must therefore “produce

evidence that [her] discharge was in retaliation for [her] protected FLSA activity, either

through the use of direct evidence or by showing that [Defendants’] proffered non-

retaliatory reasons for terminating [her] were pretextual.”106

101 See Conner, 121 F.3d at 1395.

102 Id. at 1396.

103 Defs.’ Mot. (Dkt. 45), Ex. 10, at 3.

104 Pl.’s Resp. (Dkt. 56), at 29.

105 Conner, 121 F.3d at 1396 (internal quotations and citation omitted).

106 Id.

Plaintiff has pointed to no direct evidence that Defendants terminated her because

she reported an alleged illegal kickback scheme. Instead, she again relies on the inference

created by the close temporal proximity of her protected activity and termination. This

temporal proximity, says Plaintiff, is enough to show that Defendants’ proffered reasons

were pretextual. Though Plaintiff may use this same evidence at both the prima-facie stage

and in showing that Defendants’ reasons were pretextual,107 temporal proximity is not

necessarily sufficient, and any inference must be considered in light of all the facts of the

case.108 Yet considering the evidence in a light most favorable to Plaintiff as the non-

moving party,109 the Court concludes that the temporal proximity is sufficient to create a

genuine dispute of material fact on this issue. Plaintiff will have the ultimate burden of

persuasion at trial to show that Defendants’ documented reasons were in fact pretextual.110

107 See id. at 1397 (“This is not to say that evidence introduced as part of the prima facie

case cannot also be used at the pretext stage of the analysis.”); see also Texas Dep’t of

Cmty. Affs. v. Burdine, 450 U.S. 248, 256 n.10 (1981) (“Indeed, there may be some cases

where the plaintiff’s initial evidence, combined with effective cross-examination of the

defendant, will suffice to discredit the defendant’s explanation.”).

108 Conner, 121 F.3d at 1397–98 (“[The plaintiff] argues that even if rebuttal evidence is

needed in the ordinary McDonnell Douglas case, . . . a showing of temporal proximity

between protected activity and adverse employment action is always sufficient to survive

summary judgment. We disagree both with the breadth of this argument and the factual

predicate as applied to this case. . . . Each case turns on its facts . . . .”).

109 Saleh v. Ray, 107 F. App’x 865, 867 (10th Cir. 2004) (“We view the evidence and draw

any inferences in the light most favorable to the party opposing summary judgment.”

(citing Liberty Lobby, Inc., 477 U.S. at 255)).

110 Burrus, 683 F.2d at 343 (“The overall burden of persuasion remains on the plaintiff.”).

Conclusion

For the reasons given above, Plaintiff's Motion (Dkt. 48) is GRANTED in part and

DENIED in part, and Defendants’ Motion (Dkt. 45) is likewise GRANTED in part and

DENIED in part.

IT IS SO ORDERED this 12th day of May 2023.

PATRICK R., WYRICK

UNITED STATES DISTRICT JUDGE

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