# Forbes v. Britt's Bow Wow Boutique, Inc

> District Court, S.D. Florida · February 19, 2025

URL: https://www.frixlaw.com/law-library/cases/10802538

## Case

- **Court:** District Court, S.D. Florida
- **Decided:** February 19, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

Case No. 23-cv-23216-BLOOM/Torres

ADRIAN FORBES,

Plaintiff,

v.

BRITT’S BOW WOW BOUTIQUE, INC.,
and MERRI COLVARD,

Defendants.
____________________________________/

ORDER ON RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW
PURSUANT TO FED. R. CIV. P. 50(b)

THIS CAUSE is before the Court upon Defendants Britt’s Bow Wow Boutique, Inc. and
Merri Colvard’s (“Defendants”) Renewed Motion for Judgment as a Matter of Law, ECF No. [77]
(“Motion”). Plaintiff Adrian Forbes filed a Response in Opposition, ECF No. [84], to which
Defendants filed a Reply, ECF No. [85]. The Court has reviewed the Motion, the supporting and
opposing submissions, the record in this case, the applicable law, and is otherwise fully advised.
For the reasons set forth below, Defendants’ Motion is denied.
I. BACKGROUND
This is an action for uncompensated wages arising from Defendants’ failure to pay Plaintiff
for overtime work pursuant to the Fair Labor Standards Act (“FLSA”). Plaintiff alleged
Defendants failed to pay Plaintiff his “full and proper overtime wages” and asserted a FLSA claim
for unpaid overtime wages against Defendants. ECF No. [1] The case proceeded to a jury trial, and
at the close of the evidence, Defendants moved for judgment as a matter of law. The Court denied
the motion and the jury thereafter found that Defendants violated the FLSA by failing to properly
compensate Plaintiff for the overtime hours he had worked. ECF No. [69]. Consistent with the
jury’s verdict, the Court entered judgment for Plaintiff in the amount of $38,206.08, which
represented the $12,735.36 verdict rendered by the jury against Britt’s Bow Wow Boutique, Inc.,
the $6,367.68 verdict against Merri Colvard, plus $19,103.04 in liquidated damages. ECF No. [76].

Defendants now seeks judgment as a matter of law because Plaintiff “failed to offer any
credible, admissible evidence that [Plaintiff] worked any overtime.” ECF No. [77]. In the Motion,
Defendants argue (1) Plaintiff failed to offer any proof that he worked for Britt’s Bow Wow from
August 2020 through mid-December 2020, notwithstanding the claim period was from August 23,
2020 through April 11, 2021; (2) the Court impermissibly instructed the jury on “a relaxed legal
standard for cases where a defendant ‘failed to keep adequate time and pay records for Plaintiff’”
despite Defendants offering “into evidence every single time record, for every pay period Plaintiff
worked”; (3) even assuming the relaxed standard was appropriate, Plaintiff “failed to offer any
evidence of actual overtime worked”; (4) Plaintiff failed to “offer any evidence or even argument
that Defendants ‘knew or showed reckless disregard that their conduct was prohibited by the

FLSA’”; and (5) Plaintiff failed to offer any evidence “supporting the jury’s damages awards.” Id.
at 2-3.
Plaintiff responds that (1) Colvard testified, and the parties stipulated, that Plaintiff worked
from August 23, 2020, through April 11, 2021; (2) the relaxed standard was appropriate in light of
Plaintiff’s testimony that Colvard did not formally track his hours; (3) Plaintiff “testified in detail
about the overtime he worked, his schedule, and his duties”; (4) Plaintiff’s testimony that
Defendants did not permit him to report overtime hours was sufficient to show Defendants had
knowledge that their conduct violated the FLSA; and (5) the jury award was not unduly speculative
because it was based on Plaintiff’s testimony that he worked “32 overtime hours per week during
a period that totaled 33 weeks” at a hourly rate of $18.00 and therefore, the jury award of
$19,103.04 was within the limits of the evidence presented at trial. ECF No. [84].
II. LEGAL STANDARD
A. Rule 50(b)—Motion for Judgment as a Matter of Law

“Under Federal Rule of Civil Procedure 50, judgment as a matter of law is appropriate only
if the facts and inferences point so overwhelmingly in favor of one party . . . that reasonable people
could not arrive at a contrary verdict.” Brown v. Ala. Dep’t of Transp., 597 F.3d 1160, 1173 (11th
Cir. 2010) (quotation marks omitted; alteration in the original). The Court must consider the
evidence in the light most favorable to the nonmoving party and determine “whether or not
reasonable jurors could have concluded as this jury did based on the evidence presented.” Combs
v. Plantation Patterns, 106 F.3d 1519, 1526 (11th Cir. 1997) (citation omitted). It is “the jury's
task,” not the Court’s, “to weigh conflicted evidence and inferences, and determine the credibility
of witnesses.” McGinnis v. Am. Home Mortg. Servicing, Inc., 817 F.3d 1241, 1254 (11th Cir. 2016)
(quotation marks and citation omitted); see also 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.”).
When considering the evidence, the Supreme Court stated in Reeves v. Sanderson
Plumbing Prods. Inc. that:
[A]lthough the court should review the record as a whole, it must disregard all
evidence favorable to the moving party that the jury is not required to believe. That
is, the court should give credence to the evidence favoring the nonmovant as well
as that evidence supporting the moving party that is uncontradicted and
unimpeached, at least to the extent that that evidence comes from disinterested
witnesses.
530 U.S. 133, 151 (2000) (emphasis added) (internal quotations omitted) (citations
omitted), quoted in Cadle v. GEICO Gen. Ins. Co., 838 F.3d 1113, 1127 (11th Cir. 2016).
A Rule 50(b) motion is made after the case has been submitted to the jury, “thereby insuring
that a motion for such a judgment is used only to invite the district court to reexamine its decision

not to direct a verdict as a matter of law, not to reexamine facts found by the jury.” 27A Fed. Proc.,
L. Ed. § 62:695 (Supp. 2022) (emphasis added). “[A]ny renewal of a motion for judgment as a
matter of law under Rule 50(b) must be based upon the same grounds as the original request for
judgment as a matter of law made under Rule 50(a) at the close of the evidence and prior to the
case being submitted to the jury.” Doe v. Celebrity Cruises, Inc., 394 F.3d 891, 903 (11th Cir.
2004).
“The standard for granting a renewed motion for judgment as a matter of law under
Rule 50(b) is precisely the same as the standard for granting the pre-submission
motion [under 50(a)].” Chaney v. City of Orlando, 483 F.3d 1221, 1227 (11th Cir.
2007) (alteration in original) (quoting 9A Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 2537 (2d ed. 1995)). Thus, as with motions
under Rule 50(a), the question before a district court confronting a renewed Rule
50(b) motion is whether the evidence is “legally sufficient . . . to find for the party
on that issue.” Fed. R. Civ. P. 50(a)(1).

McGinnis v. Am. Home Mortg. Servicing, Inc., 817 F.3d 1241, 1254 (11th Cir. 2016).
B. FLSA Overtime Claim
“A plaintiff who has worked overtime without pay may bring a private FLSA action for
damages.” Florez v. Workforce Sol. Staffing, LLC et al., No. 20-22766-CIV, 2021 WL 7161783,
at *6 (S.D. Fla. July 26, 2021) (citing 29 U.S.C. § 216(b)), report and recommendation adopted
sub nom., No. 20-22766-CIV, 2022 WL 539078 (S.D. Fla. Feb. 23, 2022).
Under the FLSA, an employer must pay its employees “an overtime wage of one and one-
half times his regular rate for all hours he works in excess of forty hours per week.” Josendis v.
Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1298 (11th Cir. 2011); see also 29 U.S.C. §
207(a). “In order to prevail on their claim in this case, Plaintiffs must prove that they were suffered
or permitted to work without compensation.” Allen v. Bd. of Pub. Educ. for Bibb Cnty., 495 F.3d
1306, 1314 (11th Cir. 2007) (citing 29 U.S.C. § 201 et seq.). “Courts have interpreted this to mean
that a FLSA plaintiff must demonstrate that (1) he or she worked overtime without compensation

and (2) the [defendant] knew or should have known of the overtime work.” Id. at 1314-15 (citing
Reich v. Dept. of Cons. and Nat. Res., 28 F.3d 1076, 1081-82 (11th Cir. 1994); 29 C.F.R. § 785.11).
III. DISCUSSION
Defendants contend that the undisputed evidence demonstrates they are entitled to
judgment as a matter of law. ECF No. [77] at 1. Defendants argue Plaintiff failed to provide any
evidence that he worked overtime without compensation, particularly with respect to the period
from August 2020 through mid-December 2020, or that Defendants knew or should have known
of that overtime work. Id. at 2-3. Defendants also maintain that the Court improperly instructed
the jury on the more relaxed standard for proving overtime hours under the FLSA, and even under
the more relaxed standard, Plaintiff provided insufficient evidence to prevail on his claim.

Consequently, due to the lack of evidence, the damages the jury awarded were unduly speculative.
Id. at 3.
Plaintiff responds that Colvard testified that Plaintiff worked for the relevant claim period,
and, in any event, the parties previously stipulated that Plaintiff worked throughout the claim
period. ECF No. [84] at 1-2. Furthermore, Plaintiff contends he demonstrated Defendants’ time
records were either missing or inaccurate for the claim period, and therefore, Plaintiff was
permitted to rely on the relaxed FLSA standard to prove his overtime claim. Id. at 2-3. Given the
relaxed standard, Plaintiff argues his testimony was sufficient to establish that he worked the
overtime hours alleged and that Defendants knowingly failed to compensate him for that overtime
work. Id. at 3-8
A. Whether Plaintiff Offered Sufficient Proof He Worked for Defendant from
August 2020 Through Mid-December 2020

According to Defendants, while Plaintiff alleged the claim period includes August 23,
2020, through mid-December 2020, Plaintiff presented “no credible or admissible evidence” that
he “was even working for Britt’s Bow Wow during that period . . . let alone that he worked
overtime during that period.” ECF No. [77] at 4.1 Although more than 9,000 pages worth of
documents were produced at trial, Defendants contend not a single document indicates that
Plaintiff worked from August 2020 through mid-December 2020. Id. To highlight the significance
of the lack of documents for the first four months of the claim period, Defendants point out that,
between mid-December 2020 and mid-April 2021, Plaintiff provided text messages with Colvard
that evidenced the work Plaintiff performed. Id. According to Defendants, those text messages
were the only way for Plaintiff to communicate the work he completed to Colvard and Megan
Fleming since he was working in Florida, and Colvard and Fleming resided outside of Florida. Id.
Consequently, Defendants contend the absence of text messages between Plaintiff and Colvard

1 The Court takes a moment to note that resolving a motion is tedious and unnecessarily more difficult when
the parties either do not know their own facts, or are too careless to state them correctly in their briefs.
While Defendants repeatedly assert throughout their Motion that the relevant period where there is no
evidence of Plaintiff working for Britt’s Bow Wow spans from August 23, 2020, through mid-December
2021, ECF No. [77] at 1-6, 8, Plaintiff’s total claim period only spans from August 2020-April 2021. See
ECF No. [77] at 1 n. 1; ECF No. [46] at 2 (quoting ECF No. [36-1] ¶ 3). Therefore, because Defendants
acknowledge that Plaintiff offered evidence of work for at least part of the claim period, Defendants cannot
in good faith contend there was no evidence that Plaintiff worked from August 2020-December 2021.

Plaintiff’s Response is also not a model of clarity. Plaintiff states that “Defendants deny Plaintiff presented
evidence at trial that Forbes worked during the period of August 23, 2023, through Mid-December 2021.
ECF No. [84] at 1 (emphasis added).
from August 2020 to December 2020 is strong evidence that Plaintiff did not work for Britt’s Bow
Wow at that time.
Defendants further argue that “Plaintiff’s W-4 establishes that his first day of employment
with Britt’s Bow Wow was December 21, 202[0].” Id. at 5 (citing Defs. Trial Ex. 43).2 Defendants

maintain the December 21, 2020 start date is further buttressed by the fact that Plaintiff did not
provide Colvard with his employment information until December 28, 2020. Id.3 Thus, according
to Defendants, given the absence of evidence beyond Plaintiff’s own assertions that he worked for
Britt’s Bow Wow prior to December 2020, in combination with the Defendants’ affirmative
evidence that Plaintiff did not start until December 2020, the Court should not have allowed the
jury “to consider any alleged overtime before December 28, 202[0].” Id. at 5.
Plaintiff responds that both the Parties’ Joint Stipulation and the evidence presented at trial
directly contradict Defendants’ contention that Forbes worked for Britt’s Bow Wow from August
23, 2020 through Mid-December 2020. See ECF No. [84]. According to Plaintiff, he and Colvard
each testified at trial that Plaintiff worked for Britt’s Bow Wow from August 2020 through Mid-
December 2020. Id. at 1-2.4 Before trial, the Parties also agreed in their Joint Pretrial Stipulation

2 Defendant’s Motion states that the W-4 shows Plaintiff did not start working for Brit’s Bow Wow until
December 21, 2021. However, nothing in Defense Exhibit 43 states that Plaintiff’s first day of employment
was December 21, 2021. See ECF No. [70-1] at 248. The W-4 is a 2020 tax form, the employee’s signature
is dated December 20, 2020, and Britt’s Bow Wow Boutique listed the first date of employment as
December 31, 2021. Id. Moreover, the payroll and timecards indicate that Plaintiff began working for Britt’s
Bow Wow in 2020. Yet again, Defendants either intentionally or carelessly misrepresent the contents of
the evidence presented to the jury.

3 Again, despite Defendants’ representation to the contrary, the text messages referenced in Exhibit 42
purport to be from 2020, not 2021. See ECF No. [70-1] at 246. As such, the Court is left to assume that
Defendants are making an argument that Plaintiff did not start working for Britt’s Bow Wow until
December 2020, not December 2021.

4 However, as Plaintiff concedes in his Response, Colvard argued that Plaintiff was merely a contractor
from August 2020 through Mid-December 2020 and did not become a full-time employee until later.
that “[a]t all times material hereto, Plaintiff was . . . an ‘employee’ of Defendants as defined by
the FLSA,” and that the relevant claim period was from “August 23, 2020 through April 11, 2021.”
ECF Nos. [53], [84] at 1-2. Accordingly, since Defendants admitted that Plaintiff was an employee
“as defined by the FLSA” during the entire claim period, and Colvard later testified at trial that

Plaintiff worked for Defendants during that period, Plaintiff maintains that there can be no serious
dispute that there was sufficient evidence that Plaintiff worked for Defendants from August 23,
2020, through mid-December 2020. See ECF No. [84] at 1-2.
There is no merit to Defendants’ argument that no evidence was presented at trial, nor was
there a stipulation prior to trial, that Plaintiff was an employee from August 23, 2020 through mid-
December 2020. The record reflects that the Parties stipulated that the relevant claim “for overtime
is for the period of August 23, 2020 through April 11, 2021,” and that “all times material hereto,
Plaintiff was a resident of Florida and an ‘employee’ of Defendants as defined by the FLSA.” ECF
No. [53] at 3 (emphasis added). Based on the Pretrial Stipulation, there is no serious dispute that
Plaintiff established he was Defendants’ employee, as defined by the FLSA, from August 2020

through mid-December 2020. See G.I.C. Corp., Inc. v. United States, 121 F.3d 1447, 1450 (11th
Cir. 1997) (explaining “parties are bound by their stipulations and a pretrial stipulation frames the
issues for trial).
Moreover, Plaintiff testified at trial that he was an employee during the relevant claim
period—August 2020 to April 2021. While Colvard may have contradicted Plaintiff’s testimony
by asserting that Plaintiff was merely a contractor during his first four months of employment, that
inconsistency is irrelevant to the Court’s Rule 50(b) inquiry as such considerations go to the weight
of the evidence and the credibility of the witnesses, not the sufficiency of the evidence. See
Lamonica v. Safe Hurricane Shutters, Inc., 711 F.3d 1299, 1312 (11th Cir. 2013) (“In conducting
our [Rule 50(b)] review, ‘[w]e do not make credibility determinations or weigh the evidence.”’)
(quoting Hubbard v. Bank Atlantic Bancorp, Inc., 688 F.3d 713, 724 (11th Cir. 2012)); McGinnis,
817 F.3d at 1254 (“In considering whether the verdict is supported by sufficient evidence, ‘the
court must evaluate all the evidence, together with any logical inferences, in the light most

favorable to the non-moving party.’ And, as we have stressed, ‘it is the jury’s task—not the
court’s—to weigh conflicting evidence and inferences, and determine the credibility of
witnesses.”) (quoting Beckwith v. City of Daytona Beach Shores, 58 F.3d 1554, 1560 (11th Cir.
1995) and Shannon v. Bellsouth Telecomms., Inc., 292 F.3d 712, 715 (11th Cir. 2002)).
Accordingly, the Court rejects Defendants’ argument that Plaintiff failed to establish he was an
employee throughout the entire claim period.5 The Court therefore turns to the question of whether
Plaintiff provided sufficient evidence of the overtime hours he worked during the claim period.
B. Whether the Court Properly Instructed the Jury on the Legal Standard for FLSA
Overtime Claims

Defendants contend that the Court improperly “instructed the jury that Plaintiff could rely
on an estimate of alleged overtime” because the relaxed standard only applies if Plaintiff has
proven “Defendants did not keep complete or accurate time records.” ECF No. [77] at 6.
Defendants claim that, at trial, they “offered into evidence every single time record, ADP Earning
Statements, Earning Records, and Payroll Records for Plaintiff” while Plaintiff “did not offer any
evidence that any of the records were missing[.]” Id. According to Defendants, the employment
records introduced at trial were therefore sufficient to preclude Plaintiff from relying on the relaxed
standard to prove the overtime hours he worked.

5 As noted earlier, Defendants do not dispute that Plaintiff was an employee during the remaining portion
of the claim period. Therefore, the Court need not conduct a review of the record involving the period from
December 2020 to April 2021 to determine whether there was sufficient evidence that Plaintiff was an
employee as defined by the FLSA.
Plaintiff argues the “relaxed standard” for cases involving incomplete or inadequate
records was appropriate here because Plaintiff testified “in detail about . . . Defendants’ failure to
maintain accurate time records.” ECF No. [84] at 2.
The Court remains convinced that the jury instructions provided for Plaintiff to prove his

overtime hours was the appropriate legal standard in this case. While it is true that “an employee
bringing a claim for unpaid overtime wages must initially demonstrate that [he] performed work
for which [he] was not properly compensated,” it is still “the employer’s duty to keep records of
the employee’s wages, hours, and other conditions and practices of employment” as “[t]he
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.’”
Allen v. Bd. of Pub. Educ., 495 F.3d 1306, 1314-15 (11th Cir. 2007) (quoting Anderson v. Mt.
Clemens Pottery Co., 328 U.S. 680, 687 (1946)). Therefore, where the employer has failed to keep
records or the records cannot be trusted, the employee satisfies h[is] burden of proving that [he]
performed work without compensation if [he] ‘produces sufficient evidence to show the amount

and extent of that work as a matter of just and reasonable inference.’” Jackson v. Corrections Corp.
of Am., 606 F. App’x 945, 952 (11th Cir. 2015) (quoting Allen, 495 F.3d at 1316).
While Defendants contend that the relaxed standard is only appropriate where there are no
time keeping records or no overtime, courts have found that so long as there are significant or
material defects in the employer’s records, an employee must only satisfy the relaxed burden to
prove their claim. See Celorrio v. Facci of Merrick Park, Inc., Case No. 19-25283, 2022 WL
4594119, at *4 (S.D. Fla. June 22, 2022) (“[T]he extent of the employer’s records’ inaccuracy
must be material and significant in order for the trier of fact to rely on burden shifting under M[t].
Clem[e]ns. That is the standard the Eleventh Circuit has applied, and others have followed.”);
Solano v. A Navas Party Prod., Inc., 728 F. Supp. 2d 1334, 1343 (S.D. Fla. 2010) (finding that the
plaintiff could “prove his damages under the relaxed burden-shifting scheme” where the
defendants produced records and time cards but there were significant defects with records).
Here, there are more than simply a few missing entries or inconsistencies in the payroll and

employment records Defendants offered into evidence. As noted above, Plaintiff established he
was an employee from August 23, 2020 through December 20, 2020. However, Defendants failed
to provide any payroll records or any other type of records evidencing the hours Plaintiff worked
during that four-month period. Even assuming, as Colvard testified, that Plaintiff was merely a
contractor during that time, Defendants would have been able to or should have been able to,
produce some records documenting Plaintiff’s work prior to Britt’s Bow Wow processing Plaintiff
as a formal employee in late December 2020. However, Defendants did not provide any such
records at trial for the jury to consider.
Moreover, the records Defendants did produce for the remainder of the claim period were
either inaccurate, inconsistent, or had the potential to leave a reasonable jury incredulous about the

veracity of the record keeping. For instance, the “Time Card” Defendants introduced as evidence
states that for the entire month of December 2020, Plaintiff only worked 12.48 hours. ECF No.
[70-1] at 182 (Defs’ Exhibit 13). However, in the ADP Earning Statements covering December
21, 2020 through December 27, 2020, the records reflect that Plaintiff worked 20 hours. Id. at 213
(Defs’ Exhibit 14).
Furthermore, during the trial, Plaintiff pointed out four separate occasions from December
2020 to April 2021 where, although Plaintiff did not work a standard forty-hour work week, the
Defendants’ records reflected that he worked precisely forty hours each week. Id. (Defs. Exhibit
14). Even more noteworthy, however, is that for those four weeks, none of the accompanying time
card entries reflect that Plaintiff worked forty hours. Id. (Defs. Exhibit 13). In some instances, the
timecards reflect Plaintiff worked more than forty hours, and in others, they indicate he worked
less. While it may be unclear from the record which is the correct information, it is certainly clear
that the records Defendants produced could not be considered reasonably accurate or precise so as

to have rebutted Plaintiff’s claim of incomplete or missing records. Thus, given the evidence of
missing and inaccurate employment records, Plaintiff was properly permitted to proceed under the
FLSA standard to prove his overtime claim and the jury was properly instructed.
C. Whether Plaintiff Offered Sufficient Evidence of Actual Overtime Worked

Alternatively, Defendants contend that Plaintiff still failed to provide sufficient evidence
to support his overtime claim under the relaxed standard. Defendants argue that “Plaintiff’s entire
case boiled down to his unsupported testimony that he worked an ‘average’ amount of hours of
overtime every week during the supposed claim period.” Id. at 8. According to Defendants,
Plaintiff’s testimony was based on pure speculation as it was an average estimate of overtime and
not supported by any records that would evidence the actual amount of overtime hours worked.
Plaintiff responds that he testified in detail “about the overtime he worked, his schedule,
and his duties.” ECF No. [84] at 3. Plaintiff points the Court to its Order on Motion for Summary
Judgment where the Court found that “Plaintiff stated his average weekly work schedule during
the [c]laim [p]eriod with relative precision complete with details about his tasks.” Id. at 4. (quoting
Forbes v. Britt’s Bow Wow Boutique, Inc., Case No. 23-cv-23216, 2024 WL 3874596, at *10-11
(S.D. Fla. Aug. 20, 2024)). As such, the Court was satisfied at the time that Plaintiff’s evidence
could be presented to a jury under the relaxed standard because “Plaintiff consistently testified he
worked an average of 73 hours a week, complete with a daily breakdown on his hours, as well as
specific details about his job duties.” Id.
The Court finds Plaintiff satisfied his burden at trial through the record evidence by
creating a reasonable inference as to the amount and extent of overtime work performed for
Defendants’ during the claim period. Unlike the employees Defendants point to in Jackson v.
Corrections Corp. of Am. and Pigford v. Flotel Inc., “who never stated with any clarity or precision

the number of hours [they] allegedly worked, the amount or nature of that work, where or when
that work was completed, or anything else that would assist a factfinder in approximating [the
plaintiff’s] unpaid overtime,” Plaintiff testified and provided consistent and specific details about
his job duties and weekly overtime hours. Jackson v. Corrections Corp. of Am., 606 F. App’x 945,
952 (11th Cir. 2015); Pigford v. Flotel Inc., Civ. Act. File No. 1:17-cv-01652, 2018 WL 10741753,
at *15 (N.D. Ga. Nov. 19, 2018).6 Plaintiff testified at trial that he worked an average of 73 hours
a week, and stated with specificity his typical working hours.7 Plaintiff supported his claim of
hours worked with details about his tasks, as well as when and where he would complete each of
those tasks assigned to him.8 Moreover, Plaintiff explained that he was the only Britt’s Bow Wow

6 The evidence in this case is also distinguishable from the other two cases cited by Defendants. In Evertt
v. Grady Memorial Hospital Corp., the plaintiff acknowledged she was only scheduled to work 30-35 hours
per week, and she admitted that she had not made an estimate of the number of overtime hours worked, nor
could she identify the specific weeks in which she was entitled to overtime pay. Civ. Act. File No. 1:15-
CV-173, 2016 WL 9651268, at *24 (N.D. Ga. May 12, 2016). Therefore, unlike here, there was a lack of
evidence on which a reasonable jury could rely to determine the amount of unpaid overtime she worked.
As for Morgan v. Kalka & Baer LLC, 750 App’x 784 (11th Cir. 2018), that case is also distinguishable for
the same reasons stated in the Court’s Order on Motion for Summary Judgment. ECF No. [46] at 21.
(“Unlike the plaintiff in Morgan, Plaintiff testified that he worked overtime each week during the Claim
Period. See, e.g., ECF No. [30-3] at 9 (“Every week during mid-August 2020 through mid-April 2021, I
wasn’t paid my correct time.”). Further, Plaintiff testified Defendants prohibited him from reporting
overtime. ECF No. [30-3] at 12, 20; ECF No. [36-1] ¶ 5. Plaintiff contends there are no time records to
reject—not that Defendants’ admittedly accurate time records fail to tell the full story of his overtime work.
Moreover, the defendants in Morgan provided accurate and precise time sheets and paystubs upon which
the plaintiff relied, and which negated the reasonableness of the inference that she worked unpaid overtime.
See 750 F. App’x at 790-91.”).

7 Plaintiff stated his weekly hours were as follows: Monday, Wednesday, Friday (7:30 a.m. to 1:30 a.m.);
Tuesday and Thursday (6:00 p.m. to 3:30 a.m.); and Saturday (12:00 p.m. to 7:30 p.m.).

8 In particular, Plaintiff testified that he would manage 20 to 40 pets at any given time and “did anything
employee working at the Miami location during the claim period notwithstanding that there were
typically 20 to 40 dogs at the location at any given point in time. Based on his testimony of the
hours he worked, the duties he performed, the number of animals he cared for, the lack of
assistance Plaintiff had during the claim period, and that he was not paid for overtime, Plaintiff

produced sufficient evidence that he was not properly compensated for overtime hours worked
notwithstanding that Plaintiff’s testimony included estimations and approximations. See Evertt v.
Grady Memorial Hospital Corp., Civ. Act. File No. 1:15-CV-173, 2016 WL 9651268, at *23 (N.D.
Ga. May 12, 2016) (“The Court recognizes that it is permissible for a plaintiff to rely on overtime
hours that are ‘reconstructed from memory, inferred from the particular jobs. . ., or estimated in
other ways.”’) (quoting Espensheid v. DirectSat USA, LLC, 705 F.3d 770, 775 (7th Cir. 2013));
Torres v. Rock & River Food, Inc., 244 F. Supp. 3d 1320, 1333 (S.D. Fla. 2016) (“Although the
Plaintiff could not answer questions during his deposition about exact dates for which he was owed
overtime and what amount of money he would be willing to accept, this is not fatal to his claim.
Plaintiff contends that he worked approximately sixty hours a week. This estimation is not grossly

disproportionate to the times shown on the available time cards.”).
As the district court explained in Allen v. Robert F. DeLuca, M.D., P.A., especially when
applying the relaxed FLSA standard, the reasonableness and “the credibility [ ] of the hours
Plaintiff alleges is a question for the jury [because] ‘[c]redibility determinations, the weighing of
the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those
of a judge, whether [s]he is ruling on a motion for summary judgment or for a directed verdict.

from kenneling the pets, boarding the pets[,] picking up pets from the airport[,] dropping them off at the
airport[,] [and] dropping them off at the client’s house [a]nywhere in the state.” He also claims he took the
dogs to the bathroom, cleaned their crates, and ensured the animals had their proper paperwork for travel.
With regard to his transportation of pets, he stated he “drove to Virginia two or three times[,] Georgia two
[or] three times,” as well as Alabama, North Carolina, South Carolina, and Buffalo, New York a couple of
times.
The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in
his favor.”’ No. 18-81265-CIV, 2019 WL 3890457, at *3 (S.D. Fla. June 18, 2019) (quoting
Anderson, 477 U.S. at 255). Defendants nevertheless insist that Plaintiff’s testimony at trial was
deficient because Plaintiff failed to offer the following types of evidence:

• His actual schedule or actual task performed on any specific day in the
claim period;

• Specific hours worked, including specific days those hours were worked
that include overtime;

• Specific tasks performed for which Plaintiff was allegedly not paid
overtime;

• Documentary proof showing the tasks/hours allegedly performed on a
specific day or week that demonstrate that he worked overtime;

• Documentary proof showing the actual amount of hours worked on any
specific day or week;

• His own time records that establish alleged overtime worked, including
records that would support an alleged “estimated” hours per week;

• Any records whatsoever that showed Plaintiff worked unpaid overtime; or

• Any records or documentary proof whatsoever that called into question
Defendants’ time records and established that, contrary to the records,
Plaintiff worked overtime.

Based on the issues outlined, Defendants’ primary contention appears to be that there is no
record proof or documentary evidence to support Plaintiff’s overtime claim. However, courts in
this circuit have made clear that under the relaxed standard, “[t]he employee’s burden is not great
and . . . an employee can successfully shift the burden of proof by presenting his own testimony
indicating . . . that he worked the claimed overtime.” Centeno v. I&C Earthmovers Corp., 970 F.
Supp. 2d 1280, 1287 (S.D. Fla. 2013) (quoting Jones v. Carswell Prop. Maint., Inc., No. 09–
22027–CIV, 2012 WL 163035, at *1 (S.D. Fla. Jan. 19, 2012)); Brown v. Gulf Coast Jewish Family
Serv., Inc., No. 8:10–cv–1749–T–27AEP, 2011 WL 3957771, at *7 (M.D. Fla. Aug. 9, 2011)
(report and recommendation) (noting that “much of the evidence concerning the amount and extent
of uncompensated work comes from [the p]laintiff's own assertions . . . [a]lthough [the p]laintiff
largely submits her own testimony to demonstrate the amount and extent of unpaid work, the Court

is satisfied that [the p]laintiff 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.”),
report and recommendation adopted in 2011 WL 4005928 (M.D. Fla. Sept. 8, 2011). Thus,
because an employee may testify about the hours he worked and the extent of that work, “any
inconsistency or uncertainty in an employee’s testimony about the number of unpaid hours of work
should be tested by cross-examination and left for the jury to consider.” Frew v. Tolt Technologies
Service Group, LLC, No. 6:09–CV–49–ORL–19GJK, 2010 WL 557940, at *5 (M.D. Fla. Feb. 11,
2010) (citing Allen, 495 F.3d at 1317).
Defendants also contend that Plaintiff’s testimony was not sufficiently specific as it did not

indicate his actual schedule on a given day, the specific hours worked, the specific days those
hours were worked, or the specific tasks performed for which he was not paid. However,
Defendants misconstrue Plaintiff’s burden under the relaxed FLSA standard. See Kinslow v. 5 Star
Filed Services Group, LLC, Case No. 1:19-cv-1605, 2021 WL 3493564, at *11 (N.D. Ga. Aug. 9,
2021) (“Defendants appear to add a ‘specificity’ requirement to Plaintiffs’ burden that does not
exist” under the relaxed burden shifting scheme for FLSA claims) (citing Solano v. A Navas Party
Prod., Inc., 728 F. Supp. 2d 1334, 1344 (S.D. Fla. 2010)). When an employer has inaccurate or
incomplete records, a plaintiff is not required to “prove the exact amount of time [ ]he spent
performing overtime work,” nor what specific work constituted overtime work. An approximation
or estimate is sufficient. See Solano v. A Navas Party Production, Inc., No. 09–22847–CIV, 2011
WL 98819, at *10 (S.D. Fla. Jan. 12, 2011) (“Anderson allowed the plaintiff ‘to prove damages
by way of estimate,’… In this case, because of Defendant’s own defective record-keeping, Plaintiff
did not need to prove his damages with precision.”) (quoting O’Brien v. Ed Donnelly Enters., 575

F.3d 567, 602–03 (6th Cir. 2009)); Maldonado v. Alta Healthcare Group, Inc., 17 F. Supp. 3d
1181 (M.D. Fla. 2014); Santelices v. Cable Wiring, 147 F. Supp. 2d 1313, 1328 (S.D. Fla. 2001)
(concluding that the plaintiff’s failure to demonstrate the exact number of overtime hours he
worked did not defeat his claim as a matter of law); Reese v. Fla. BC Holdings, LLC, No.
617CV1574ORL41GJK, 2020 WL 10486252, at *17 (M.D. Fla. Jan. 16, 2020) (explaining that
once a plaintiff demonstrates the relaxed standard is appropriate, “[t]he burden then shifts to the
employer to come forward with evidence of the precise amount of work performed or with
evidence to negative the reasonableness of the inference to be drawn from the employee’s
evidence. If the employer fails to produce such evidence, the court may then award damages to the
employee, even though the result be only approximate.”) (emphasis added) (quoting Etienne v.

Inter-Cty. Sec. Corp., 173 F.3d 1372, 1375–76 (11th Cir. 1999)); De Lotta v. Dezenzo’s Italian
Rest., Inc, No. 608CV2033ORL22KRS, 2010 WL 2541702, at *2 (M.D. Fla. June 4, 2010), report
and recommendation adopted sub nom. De Lotta v. Dezenzo’s Italian Rest., Inc., No.
608CV2033ORL22KRS, 2010 WL 2541714 (M.D. Fla. June 22, 2010) (“If the employer does not
come forward with evidence of the precise amount of work performed or other evidence to negate
the plaintiff’s prima facie case, the ‘court may award approximate damages based on the
employee’s evidence.”’) (quoting Etienne, 173 F.3d at 1375). Requiring Plaintiff to produce
precise and specific estimates rather than reasonable estimations and approximations of his work
would run counter to the remedial purpose of the FLSA and “the great public policy which it
embodies” because, as the Eleventh Circuit has explained:
[I]f an employer has failed to keep proper and accurate records and the employee
cannot offer convincing substitutes, the solution is not to penalize the employee by
denying him any recovery on the ground that he is unable to prove the precise extent
of uncompensated work. Such a result would place a premium on an employer’s
failure to keep proper records in conformity with his statutory duty; it would allow
the employer to keep the benefits of an employee's labors without paying due
compensation as contemplated by the [FLSA].

Allen, 495 F.3d at 1315-16 (alterations adopted) (citing Anderson v. Mt. Clemens Pottery Co., 328
U.S. 680, 687 (1946), superseded by statute on other grounds). Therefore, since Defendants failed
to provide precise evidence at trial of the hours Plaintiff actually worked, Plaintiff’s estimation of
his work and the hours he worked was a permissible basis for the jury to reasonably infer Plaintiff
had completed the overtime hours alleged and award damages accordingly.
D. Whether Plaintiff Offered Sufficient Evidence that Defendants “Knew or Showed
Reckless Disregard That Their Conduct was Prohibited by the FLSA”

Defendants contend Plaintiff failed to provide evidence that “Defendants either ‘knew’ or
‘showed reckless disregard’ that they were violating the FLSA.” ECF No. [77]. Defendants
maintain that, at trial, Plaintiff conceded he never notified Defendants of the overtime hours
worked, and therefore, Defendants could not have known of any FLSA violation with respect to
overtime. Id. at 15. According to Defendants, the only evidence offered was Plaintiff’s conclusory
assertions that Defendants’ timekeeping system was inaccurate. Id. However, Defendants contend
such conclusory testimony alone is insufficient to establish they were on notice of the purported
FLSA overtime violations. Id.
Plaintiff responds that, at trial, he testified that “Defendants did not permit him to report
the overtime hours that he worked.” ECF No. [84] at 7. Accordingly, because Plaintiff argues a
defendant “cannot disclaim knowledge” where a defendant inhibits truthful reporting of overtime
or where an employer encourages employees to report artificially low hours, Plaintiff contends
Defendants cannot argue they lacked knowledge of the FLSA violation given their conduct here.
Id.
As the Eleventh Circuit explained in Allen, “when an employer’s actions squelch truthful

reports of overtime worked, or where the employer encourages artificially low reporting, it cannot
disclaim knowledge.” 495 F.3d at 1319 (citing Brennan v. Gen. Motors Acceptance Corp., 482
F.2d 825, 828 (5th Cir. 1973)). At trial, Plaintiff testified that Colvard failed to properly record his
hours, prevented Plaintiff from accurately reporting his overtime hours, and would get angry
anytime Plaintiff brought up his hours with her. Such testimony is sufficient to impute knowledge
of the FLSA violation on Defendants.9 See Bailey v. TitleMax of Ga., Inc., 776 F.3d 797, 801 (11th
Cir. 2015) (“Knowledge may be imputed to the employer when its supervisors or management
‘encourage artificially low reporting.’”) (quoting Allen, 495 F.3d at 1319)10; cf Reich v. Dep’t of
Conservation & Natural Res., State of Ala., 28 F.3d 1076, 1082 (11th Cir. 1994) (“The cases must
be rare where prohibited work can be done . . . and knowledge or the consequences of knowledge

avoided.”) (quoting Gulf King Shrimp Co. v. Wirtz, 407 F.2d 508, 512 (5th Cir. 1969)).
Consequently, given Plaintiff’s testimony, a reasonable juror could find that Defendants had either
constructive or actual knowledge of the FLSA overtime violations.

9 Colvard was Plaintiff’s supervisor, therefore, her knowledge can be imputed to Britt’s Bow Wow. See
Bailey, 776 F.3d at 802 (“Both panels ruled that knowledge on the part of supervisors could be imputed to
the employers.”).

10 In Bailey, the Eleventh Circuit found that the knowledge element of the plaintiff’s FLSA overtime claim
was satisfied where the defendant explicitly instructed the plaintiff “to underreport his time by working off
the clock,” and by “changing [the plaintiff’s] time records to show fewer hours worked. 776 F.3d at 801.
Importantly, those two bases for knowledge were independent of each other, and either one, alone, would
have been sufficient to establish the knowledge requirement.
E. Whether Plaintiff Offered Sufficient Evidence to Support the Damages Awarded
by the Jury

Finally, Defendants argue Plaintiff “did not offer any testimony or evidence at trial about
any specific alleged damages.” ECF No [77]. Defendants asserts Plaintiff exclusively relied on a
“one sentence demonstrative exhibit that was not tied to any evidence,” thereby allowing the jury
to simply speculate as to what damages they felt were appropriate. Id. at 16. According to
Defendants, Plaintiff never offered any evidence supporting a precise amount of damages, let alone
evidence proving those damages to a reasonable degree of certainty. Because Plaintiff was required
to present credible, admissible evidence supporting damages in order to establish his FLSA claim,
and had failed to do so here, Defendants contend the jury verdict must be set aside.
Plaintiff responds that the testimony at trial was specific and supported by the record.
Plaintiff points out that he testified “he worked an average of 32 overtime hours per week during
a period that totaled 33 weeks and that his hourly rate was $18.00.” ECF No. [84] at 8. Therefore,
based on the evidence Plaintiff presented at trial, he maintains that any amount up to $28,512 of
unpaid overtime wages would have been supported by the record. See id. Consequently, since the
jury awarded a total amount of $19,103.04, which is below the amount supported by the record,
there is no basis for Defendants’ challenge to the damages awarded.
The Court finds that the jury’s award of damages was adequately supported by the record.
As explained above, Plaintiff carried his burden necessary to recover damages by testifying at trial

both to the number of hours of overtime worked as well as the extent of that work. Plaintiff’s
proposed damages were directly tied to his testimony that he was paid $18 an hour and worked an
average of 33 overtime hours a week during the entirety of the claim period. Therefore, Plaintiff
did not request that the jury speculate as to the appropriate amount of damages, but instead,
requested that the calculation of damages be based on Plaintiff’s reasonable estimation of overtime
hours worked. While the credibility and veracity of that calculation could be called into question,11
there is no question that the ultimate calculation was based on the evidence presented at trial. To
suggest that the relaxed standard does not require an employee to prove, with precision, the number
of overtime hours he worked, but then insist that the employee’s damage calculation be based on

precise evidence is antithetical to the purpose of the relaxed evidentiary standard. See Brantley v.
Ferrell Elec., Inc., 112 F. Supp. 3d 1348, 1367 (S.D. Ga. 2015) (citing Anderson v. Mt. Clemens
Pottery Co., 328 U.S. 680, 687 (1946) (“The solution . . . is not to penalize the employee by
denying him any recovery on the ground that he is unable to prove the precise extent of
uncompensated work. Such a result would place a premium on an employer’s failure to keep proper
records in conformity with his statutory duty; it would allow the employer to keep the benefits of
an employee's labors without paying due compensation as contemplated by the [FLSA].”)); see
also Rodriguez v. Farm Stores Grocery, Inc., 518 F.3d 1259, 1267 (11th Cir. 2008) (“We
recognize, of course, that the jury had to make approximations and estimates in order to arrive at
a damages verdict because Farm Stores did not maintain payroll records documenting the number

of hours each store manager worked.”). Accordingly, the proposed damages and the demonstrative
exhibit used to assist in calculating the damages adequately relied on the evidence introduced at
trial. Accordingly, Defendants’ final argument is rejected.
IV. CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED that Defendants’ Renewed Motion for
Judgment as a Matter of Law, ECF No. [77], is DENIED.

11 But as the Court explained above, questions of veracity and credibility are for the jury to weigh not for
the Court to decide as a matter of law.
Case No. 23-cv-23216-BLOOM/Torres

DONE AND ORDERED in Chambers at Miami, Florida, on February 19, 2025.

BETH BLOOM
UNITED STATES DISTRICT JUDGE
Copies to: Counsel of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10802538. Public record. Not legal advice.