IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 09-cv-00894-JLK
CONNIE PERRY,
KENT MENGE,
CHUCK WEDDEL,
Plaintiffs,
v.
AT&T OPERATIONS, INC.,
Defendant.
________________________________________________________________________
ORDER STRIKING MOTION FOR SUMMARY JUDGMENT
AND RELATED BRIEFING
________________________________________________________________________
KANE, J.
This overtime compensation action is before me on Plaintiffs Motion for Summary
Judgment (Doc. 47). Plaintiffs contend they were non-exempt employees who regularly
worked more than 40 hours a week and were not compensated for their overtime hours in
violation of the § 207(a)(1) of the Fair Labor Standards Act (FSLA) and Colorado Wage
Order 24, Colo. Code Regs. § 1103-1. Plaintiffs submit affidavits attesting to the fact that
they were “forced” to work more than 40 hours per week and that they were not
compensated for their excess hours, and argue that Defendant’s failure to keep adequate
records of the hours worked by employees precludes its ability to rebut Plaintiffs’
evidence and entitled them to judgment as a matter of law. I have spent considerable time
with the parties’ briefs and disagree.
In both form and substance, Plaintiffs’ summary judgment theory of relief and
their briefing are inadequate. Plaintiffs characterize both their Fair Labor Standards Act
(FLSA) and state law wage claims in only the most general terms,1 support those claims
with legal conclusions, non sequiturs, and minimal and unpersuasive legal authority,2 and
pepper their briefs with miscitations and grammatical errors.3 Most importantly,
a wage claim plaintiff based on reasonable estimates of uncompensated overtime hours even
when an employer presents sworn testimony in rebuttal. To the contrary, the trial court in Doty
ruled for plaintiffs only after a trial on the merits where the court, as the trier of fact, weighed the
evidence, as I am specifically precluded from doing on summary judgment. If anything, Doty
supports a denial of Plaintiffs’ motion, so that the parties’ competing evidence may be weighed
by the trier of fact.
1 In their Complaint (Doc. 1), Scheduling Order (Doc. 19), and summary judgment
briefing, Plaintiffs claim Defendant has violated their rights under “29 U.S.C. § 201, et seq.,”
the elements of which Plaintiffs contend are set forth at 29 U.S.C. § 207(a) (1) and “29
U.S.C. § 785.12 (1997).” Mot. Summ. J. (Doc. 47) at 9-10. FLSA Section 207(a) is the
Act’s general prohibition that “no employer shall employ any of his employees . . . for a
workweek longer than forty hours unless such employee receives compensation for his
employment in excess of the hours above specified at a rate not less than one and one-half
times the regular rate at which he is employed.” After some consternation I realized the
citation to “29 U.S.C. § 785.12 (1997)” was likely a citation to a thirteen-year-old version of
29 C.F.R. § 785.12, which provides that employers must pay overtime for work “performed
away from the premises or the job site,” a subject about which Plaintiffs argue elsewhere in their
briefing but not in the section of page 10 of their opening brief where the regulation is cited.
2 In their reply in support of the undisputed facts they averred in their opening
brief, for example, Plaintiffs respond to Defendant’s denial that AT&T managers ever emailed or
“quequed” with Plaintiffs after hours by asserting “whether or not Plaintiffs corresponded with
their managers via queque [or email] after hours, AT&T was still on constructive notice that
Plaintiffs were working overtime hours.” Reply Br. at p. 6, ¶¶ 16-17 (Doc. 58)(emphasis mine.)
Not only does the conclusion not follow from the premise, but it is a legal one insufficient to
support a claim even under a Rule 12(b)(6) standard, let alone the standard governing motions
for summary judgment under Rule 56. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007), applied in Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009).
3 In arguing their entitlement to summary judgment, for example, Plaintiffs cite
Doty v. Elias, 733 F.2d 720, 725 (10th Cir. 1984), for the proposition that “Courts have been very
differential [sic] to employees when examining evidence that employer’s [sic] try to use to
negate the employee’s reasonable estimate of uncompensated overtime hours.” Pls.’ Mot.
Summ. J. (Doc. 47) at 17. Besides the inclusion of distracting grammatical/typographical errors,
the case Plaintiffs cite in no way supports the proposition they purport to make, namely, that
district courts have in the past, or that this court should, in this case, grant summary judgment to
It is not the time-consuming burden of this court to proofread and correct errors, or, in the
case of the miscitation of 29 U.S.C. § 785.12, to determine what the correct citation was
intended, simply to understand what represented parties are trying to communicate in their
briefs.
Plaintiffs’ briefs read like trial briefs full of argument on disputed points of fact.
Plaintiffs contend, for example, that they have “proven” each of the elements of a wage
act claim, asserting AT&T managers had “actual knowledge” that Plaintiffs were working
overtime and maintaining those managers’ sworn affidavits to the contrary “are not
credible.” Mot. Summ. J. (Doc. 47) at 9; Pls’ Reply at 15. This is not the stuff of
summary judgment, it is the antithesis of it.
The essence of Plaintiffs’ argument on summary judgment is that the Department
of Labor has already investigated AT&T and issued a report finding AT&T to have
maintained, for a period of time that has since expired, inadequate records of employee
hours worked and that two of the three Plaintiffs were owed overtime compensation for
work performed from the date they were hired in April 2007 to September 2007, and that
these findings somehow relieve Plaintiffs of any burden on summary judgment other than
to present evidence from which the existence and number of additional overtime
violations since can be inferred. This is incorrect.
Under old, but apparently still applicable Supreme Court precedent, where an
employer in a wage act case has kept inaccurate or inadequate records, “an employee has
carried out his burden [of making out a claim for unpaid minimum or overtime wages
under the Act] if he proves that he has in fact performed work for which he was
improperly compensated and if he produces sufficient evidence to show the amount and
extent of that work as a matter of just and reasonable inference.” Anderson v. Mt.
Clemens Pottery Co., 328 U.S. 680, 687 (1946). If this burden is met, however, “the
burden then shifts to the employer to come forward with evidence of the precise amount
of work performed or with evidence to negative [sic] the reasonableness of the inference
to be drawn from the employee’s evidence.” Id. at 687-88. On the record before me,
Plaintiffs’ initial burden is the subject of strenuous objection and denial in sworn
affidavits by the managers charged with supervising them and overseeing their work, and
those same managers offer emphatic, and emphatically disputed, testimony to support
their burden of negating the reasonableness of the inference to which Plaintiffs claim they
are entitled. It is, in short, completely unreasonable to conclude in this case that a
reasonable trier of fact could find only in favor of Plaintiffs on their claims. Under these
circumstances, Plaintiffs’ Motion for Summary Judgment would be subject to denial on
the merits even if I were to consider the briefing as filed. See Robertson v. Board of
County Comm’rs, 78 F. Supp.2d 1142, 1160 (D. Colo. 1999)(Babcock, J.)(finding in
favor of wage claim plaintiffs in part after weighing evidence on the merits), aff’d, 166
F.3d 1222 (10th Cir. 1999)(unpublished).
Before concluding, I pause also to reflect on Defendant’s submissions.
Defendant’s submissions constitute an effort to rebut Plaintiffs’ allegations regarding
overtime compensation due and their managers’ awareness that (1) those hours were, in
fact, worked, and (2) that Defendant avoided having to compensate Plaintiffs for them by
creating an atmosphere where employees felt claiming overtime would reflect poorly on
their performance and job security and therefore did not request or seek approval for
overtime compensation. Because they are sworn statements essentially denying and
completely recasting almost every fact alleged, it is hard to arrive at a conclusion other
than that someone or other is perjuring him or herself under oath. Defendant is
admonished that should any of the testimony it has proffered to rebut Plaintiffs’ Motion is
ultimately be shown to have been false when made, not only Defendant but also the
individual witnesses/affiants and Defendant’s counsel, may each be subjected to sanctions
to and including a referral to the United States Attorney. The same holds true for
Plaintiffs and Plaintiffs’ counsel.
Based on the foregoing, the Motion for Summary Judgment and briefs in support
and in opposition thereto are STRICKEN with leave to refile. If Plaintiff chooses to refile
its Motion, it should do so on or before January 13, 2011. Defendant’s refiled Response
shall be due on or before January 21, 2011, and any Reply shall be due on or before
January 28, 2011. The Court is aware that Magistrate Judge Shaffer has set this case for a
Final Pretrial Conference on February 1, 2011. The parties are strongly encouraged to
confer on the issue of settlement before the Pretrial Conference date and to let Magistrate
Judge Shaffer know whether further settlement negotiations would be helpful. I express
no view on the advisability of settlement one way or the other, but it does appear that the
case is one that must be tried, to whatever assessable risk to the parties as such a trial may
portend.
Dated January 6, 2011.
s/John L. Kane
SENIOR U.S. DISTRICT JUDGE
FOR THE DISTRICT OF COLORADO
Civil Action No. 09-cv-00894-JLK
CONNIE PERRY,
KENT MENGE,
CHUCK WEDDEL,
Plaintiffs,
v.
AT&T OPERATIONS, INC.,
Defendant.
________________________________________________________________________
ORDER STRIKING MOTION FOR SUMMARY JUDGMENT
AND RELATED BRIEFING
________________________________________________________________________
KANE, J.
This overtime compensation action is before me on Plaintiffs Motion for Summary
Judgment (Doc. 47). Plaintiffs contend they were non-exempt employees who regularly
worked more than 40 hours a week and were not compensated for their overtime hours in
violation of the § 207(a)(1) of the Fair Labor Standards Act (FSLA) and Colorado Wage
Order 24, Colo. Code Regs. § 1103-1. Plaintiffs submit affidavits attesting to the fact that
they were “forced” to work more than 40 hours per week and that they were not
compensated for their excess hours, and argue that Defendant’s failure to keep adequate
records of the hours worked by employees precludes its ability to rebut Plaintiffs’
evidence and entitled them to judgment as a matter of law. I have spent considerable time
with the parties’ briefs and disagree.
In both form and substance, Plaintiffs’ summary judgment theory of relief and
their briefing are inadequate. Plaintiffs characterize both their Fair Labor Standards Act
(FLSA) and state law wage claims in only the most general terms,1 support those claims
with legal conclusions, non sequiturs, and minimal and unpersuasive legal authority,2 and
pepper their briefs with miscitations and grammatical errors.3 Most importantly,
a wage claim plaintiff based on reasonable estimates of uncompensated overtime hours even
when an employer presents sworn testimony in rebuttal. To the contrary, the trial court in Doty
ruled for plaintiffs only after a trial on the merits where the court, as the trier of fact, weighed the
evidence, as I am specifically precluded from doing on summary judgment. If anything, Doty
supports a denial of Plaintiffs’ motion, so that the parties’ competing evidence may be weighed
by the trier of fact.
1 In their Complaint (Doc. 1), Scheduling Order (Doc. 19), and summary judgment
briefing, Plaintiffs claim Defendant has violated their rights under “29 U.S.C. § 201, et seq.,”
the elements of which Plaintiffs contend are set forth at 29 U.S.C. § 207(a) (1) and “29
U.S.C. § 785.12 (1997).” Mot. Summ. J. (Doc. 47) at 9-10. FLSA Section 207(a) is the
Act’s general prohibition that “no employer shall employ any of his employees . . . for a
workweek longer than forty hours unless such employee receives compensation for his
employment in excess of the hours above specified at a rate not less than one and one-half
times the regular rate at which he is employed.” After some consternation I realized the
citation to “29 U.S.C. § 785.12 (1997)” was likely a citation to a thirteen-year-old version of
29 C.F.R. § 785.12, which provides that employers must pay overtime for work “performed
away from the premises or the job site,” a subject about which Plaintiffs argue elsewhere in their
briefing but not in the section of page 10 of their opening brief where the regulation is cited.
2 In their reply in support of the undisputed facts they averred in their opening
brief, for example, Plaintiffs respond to Defendant’s denial that AT&T managers ever emailed or
“quequed” with Plaintiffs after hours by asserting “whether or not Plaintiffs corresponded with
their managers via queque [or email] after hours, AT&T was still on constructive notice that
Plaintiffs were working overtime hours.” Reply Br. at p. 6, ¶¶ 16-17 (Doc. 58)(emphasis mine.)
Not only does the conclusion not follow from the premise, but it is a legal one insufficient to
support a claim even under a Rule 12(b)(6) standard, let alone the standard governing motions
for summary judgment under Rule 56. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007), applied in Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009).
3 In arguing their entitlement to summary judgment, for example, Plaintiffs cite
Doty v. Elias, 733 F.2d 720, 725 (10th Cir. 1984), for the proposition that “Courts have been very
differential [sic] to employees when examining evidence that employer’s [sic] try to use to
negate the employee’s reasonable estimate of uncompensated overtime hours.” Pls.’ Mot.
Summ. J. (Doc. 47) at 17. Besides the inclusion of distracting grammatical/typographical errors,
the case Plaintiffs cite in no way supports the proposition they purport to make, namely, that
district courts have in the past, or that this court should, in this case, grant summary judgment to
It is not the time-consuming burden of this court to proofread and correct errors, or, in the
case of the miscitation of 29 U.S.C. § 785.12, to determine what the correct citation was
intended, simply to understand what represented parties are trying to communicate in their
briefs.
Plaintiffs’ briefs read like trial briefs full of argument on disputed points of fact.
Plaintiffs contend, for example, that they have “proven” each of the elements of a wage
act claim, asserting AT&T managers had “actual knowledge” that Plaintiffs were working
overtime and maintaining those managers’ sworn affidavits to the contrary “are not
credible.” Mot. Summ. J. (Doc. 47) at 9; Pls’ Reply at 15. This is not the stuff of
summary judgment, it is the antithesis of it.
The essence of Plaintiffs’ argument on summary judgment is that the Department
of Labor has already investigated AT&T and issued a report finding AT&T to have
maintained, for a period of time that has since expired, inadequate records of employee
hours worked and that two of the three Plaintiffs were owed overtime compensation for
work performed from the date they were hired in April 2007 to September 2007, and that
these findings somehow relieve Plaintiffs of any burden on summary judgment other than
to present evidence from which the existence and number of additional overtime
violations since can be inferred. This is incorrect.
Under old, but apparently still applicable Supreme Court precedent, where an
employer in a wage act case has kept inaccurate or inadequate records, “an employee has
carried out his burden [of making out a claim for unpaid minimum or overtime wages
under the Act] if he proves that he has in fact performed work for which he was
improperly compensated and if he produces sufficient evidence to show the amount and
extent of that work as a matter of just and reasonable inference.” Anderson v. Mt.
Clemens Pottery Co., 328 U.S. 680, 687 (1946). If this burden is met, however, “the
burden then shifts to the employer to come forward with evidence of the precise amount
of work performed or with evidence to negative [sic] the reasonableness of the inference
to be drawn from the employee’s evidence.” Id. at 687-88. On the record before me,
Plaintiffs’ initial burden is the subject of strenuous objection and denial in sworn
affidavits by the managers charged with supervising them and overseeing their work, and
those same managers offer emphatic, and emphatically disputed, testimony to support
their burden of negating the reasonableness of the inference to which Plaintiffs claim they
are entitled. It is, in short, completely unreasonable to conclude in this case that a
reasonable trier of fact could find only in favor of Plaintiffs on their claims. Under these
circumstances, Plaintiffs’ Motion for Summary Judgment would be subject to denial on
the merits even if I were to consider the briefing as filed. See Robertson v. Board of
County Comm’rs, 78 F. Supp.2d 1142, 1160 (D. Colo. 1999)(Babcock, J.)(finding in
favor of wage claim plaintiffs in part after weighing evidence on the merits), aff’d, 166
F.3d 1222 (10th Cir. 1999)(unpublished).
Before concluding, I pause also to reflect on Defendant’s submissions.
Defendant’s submissions constitute an effort to rebut Plaintiffs’ allegations regarding
overtime compensation due and their managers’ awareness that (1) those hours were, in
fact, worked, and (2) that Defendant avoided having to compensate Plaintiffs for them by
creating an atmosphere where employees felt claiming overtime would reflect poorly on
their performance and job security and therefore did not request or seek approval for
overtime compensation. Because they are sworn statements essentially denying and
completely recasting almost every fact alleged, it is hard to arrive at a conclusion other
than that someone or other is perjuring him or herself under oath. Defendant is
admonished that should any of the testimony it has proffered to rebut Plaintiffs’ Motion is
ultimately be shown to have been false when made, not only Defendant but also the
individual witnesses/affiants and Defendant’s counsel, may each be subjected to sanctions
to and including a referral to the United States Attorney. The same holds true for
Plaintiffs and Plaintiffs’ counsel.
Based on the foregoing, the Motion for Summary Judgment and briefs in support
and in opposition thereto are STRICKEN with leave to refile. If Plaintiff chooses to refile
its Motion, it should do so on or before January 13, 2011. Defendant’s refiled Response
shall be due on or before January 21, 2011, and any Reply shall be due on or before
January 28, 2011. The Court is aware that Magistrate Judge Shaffer has set this case for a
Final Pretrial Conference on February 1, 2011. The parties are strongly encouraged to
confer on the issue of settlement before the Pretrial Conference date and to let Magistrate
Judge Shaffer know whether further settlement negotiations would be helpful. I express
no view on the advisability of settlement one way or the other, but it does appear that the
case is one that must be tried, to whatever assessable risk to the parties as such a trial may
portend.
Dated January 6, 2011.
s/John L. Kane
SENIOR U.S. DISTRICT JUDGE
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