(Id.

This incident, however, is too isolated to clearly establish Richard's authority. Credit, Inc. v. Brock, 483 U.S. 27, 32 (1987).

Defendants cite authority from a number of circuits for the proposition that unruly, disruptive, and disrespectful behavior constitutes a legitimate reason for terminating an employee, even when the behavior is connected with an activity protected by antidiscrimination statutes. 82.) (Id. For the reasons outlined above, Defendants' motion for summary judgment (Dkt.

Richard testified, in September 2006 he spent the majority of his time "handling dogs, taking them on walks, picking up poop, maintenance, mowing the law," and that it was not until the "beginning of 2008 [] when I really did more, I would help out in the office."

Corp., 557 F.3d 301, 307 (6th Cir. Consol. Defendants are entitled to a credit for those overpayments. Mitigation of damages is an affirmative defense and "the burden remains on the employer to prove that the employee failed to mitigate her damages. In the beginning, she would spend at least half an hour every other day searching for jobs on the internet. (Id. at 587. 138-39.) 5 attachments E and F.) Because Defendants allege Richard Bray was a supervisor beginning in 2007, they have only calculated the hours and payments for Richard Bray for 2006. Julie Rescigno, an employee of Dog Star Ranch, recalls hearing a conversation between Richard and Carol just prior to Carol leaving for vacation. 1986). 541.100(a)(4). 146, 864 F.2d 1368, 1375 (7th Cir. IT IS SO ORDERED. The court finds persuasive the calculation of damages employed in D'Camera, Roman, and Lupien. However, the collective bargaining agreement in effect between April 15, 1986 and October 1, 1987 did not authorize payment with compensatory time off in lieu of monetary overtime pay. In Thurman, the plaintiff, who alleged race discrimination for failure to hire, sought and obtained subsequent employment. (Id. 1992) (per curiam); see also Moore v. Freeman, 355 F.3d 558, 562 (6th Cir. (Id. Id. 5 attachment F.) Richard was underpaid by a total of $1,647.98 and overpaid by a total of $1,750.12. 84.) "This burden is not onerous, and does not mandate that the plaintiff be successful in mitigating the damage." The district court explained that its holding was "properly characterized as a conclusion in equity. Ex. The issue regarding mitigation of damages was whether defendant's liability for backpay was tolled upon his termination for cause from his subsequent employment. 55.) Id. During the time Katy and Richard were alleged to have raised their voices, the meetings were taking place in private areas, away from other employees. (Id. Ex. at 308 (citing NLRB v. Reynolds, 399 F.2d 668, 669 (6th Cir. 32.) Miller v. Marsh, 766 F.2d 490, 493 (11th Cir. EEOC v. Romeo Comm. Sch. 2009) (quoting NLRB v. Westin Hotel, 758 F.2d 1126, 1130 (6th Cir. 71-73.) at 89. (R. Bray. 2001). These statements suffer the same problem as the other evidence offered by Defendants, they do not establish that Richard supervised these individuals as of January 1, 2007. As the conversation continued, Carol told Katy that she felt as though Katy was stabbing her in the back and that Katy had agreed to the pay system. After his termination, almost every day Richard checked several websites for jobs for which he was qualified. In Carcano v. William J. Kline Son, Inc., No. at 828. When he walked back to the area where Carol and Katy were meeting, he could hear Katy yelling at Carol. (citing 29 C.F.R. I Herbert Affidavit 7.) ( Id. 1986) (reviewing a district court's award of backpay under the clearly erroneous standard). 28.) Defendants have offered no evidence that Richard began performing these duties prior to January 1, 2007. P. 56(e); Matsushita, 475 U.S. at 574. Carol explained she felt disrespected and that Katy was trying to deface her in front of other employees. ), At her deposition, Katy Bray discussed her efforts to secure employment after she was terminated from Dog Star Ranch.

190; Pl. 4; Def. By paying in advance, the city did not violate the FLSA's requirement that overtime compensation be paid without unnecessary delay. 57.) at 26.) The two entered another portion of the building where several other employees were working. Carol asked Richard to watch the employee, and Richard and Carol agreed, based on the employee's actions, the employee needed to be terminated. Plaintiffs complain that the documentary evidence submitted by Defendants do not establish when Richard Bray performed as a supervisor. ( Id. 1999); Evans v. Kansas City, Mo.

Because Kukowski did not start working until after January 1, 2007, it is unclear how he would have personal knowledge about Richard's duties at the Ranch prior to that date. Carol admits, "in the heat of the moment, that, you know, she was fired, I'm not going to have someone disrespect me, you know, talk the way she was talking about the business." No. The Sixth Circuit has interpreted the section of the FLSA prohibiting retaliation to include retaliation against employees who informally assert their statutory rights at work.

1998); see also Wagner v. Dillard Dept. (Id. 541.700(a). In Lupien v. City of Marlborough, 387 F.3d 83 (1st Cir. Speedway SuperAmerica, 506 F.3d at 501-502 (clarifying that the employer need not meet a heightened evidentiary standard and quoting Renfro v. Indiana Michigan Power Co., 497 F.3d 575, 576 (6th Cir. 10, 2010). 24.) Carol described Richard as "disrespectful," "very agitated, angry." (Id. (Id. Dist. (R. Bray Dep. 61.) Weighing in Defendants' favor, the record does provide some evidence that, prior to January 1, 2007, Richard performed duties typically performed by a supervisor. 1988) ("If an employer proves that an employee has not made reasonable efforts to obtain work, the employer does not also have to establish the availability of substantially comparable work."). The issue arose under sections 207(e)(5-7) and (h), none of which are at issue here. (Def. 153.) 1997)). Finally, Defendants contend that Richard's vocational training waiver eliminated his requirement to seek work for the purpose of unemployment benefits and establishes that he did not seek to mitigate damages. (Id.)

Ex.

Richard submitted resumes and applications after he began school. Within this context, the appellate court reversed the lower court's decision, which had allowed the employer to offset the sum total of the premiums paid, and remanded the issue for the district court to "determine the amount of compensation credit that [the defendant] may claim on a pay period by pay period basis." at 826-28. Ex. (Pl. Sch., 976 F.2d 985, 989-990 (6th Cir. McDonnell Douglas Corp v. Green, 411 U.S. 792, 802 (1973).

(Id. 47; R. Bray Dep. (C. Yarnold Dep. First, Plaintiffs allege Defendants failed to appropriately compensate them for overtime. United States District Court, W.D. 74.) 29 C.F.R. (Id.

93-94.) (Id. On appeal, the Fifth Circuit explained the factual basis underlying the decision. (Pl Ex.

Initially, the Sixth Circuit places the burden on a defendant to show that substantially equivalent job opportunities exist as part of the affirmative defense. See Kahn, 64 F.3d at 280 (involving an employee who, among other things, exhibited foul language and unconsented and unwarranted touching of another). ), Patrick Yarnold recalls a different version of events. 2006) (involving a claim under the Family and Medical Leave Act and citing Rasimas). at 24) If he worked less than 40 hours and did not have banked time, he would not receive a full paycheck for 40 hours' work. (Pl.

(Def. Second, Defendants allege both Richard and Katy Bray were terminated, not because of their complaints, but due to the manner in which they raised their complaints. 09-cv-1178, 1998 WL 690867 (N.D.N.Y Oct. 1, 1998), the mitigation of damages issue was decided on a motion for summary judgment prior to any determination of liability. At the end of the summer, Katy returned to school and only worked for Dog Star Ranch sporadically, approximately one weekend a month and holidays. (Id.) Richard went home for lunch and then called Carol and asked to meet someplace more public and further stated that he wanted to bring someone along. ( Id.) The Court concluded that Plaintiffs would be unjustly enriched if the City's overpayments were not taken into account in any manner whatsoever, as the Plaintiffs desire." 1987)). 145-147.) Patrick Yarnold then entered the area and joined the conversation. (R. Bray Dep. When he started school, he applied for a work study position. Br. at 826. Patrick then accused Richard of yelling at Carol, told Richard his sister Katy was yelling at Carol, that their behavior was unacceptable, and that Richard did not have a job at Dog Star Ranch anymore. (Id.). Ex. 81.) (Id.

Defendants have offered proof of the hours Richard and Katy worked during their employment and the paychecks they received. Plaintiffs, however, are only entitled to damages for their unpaid overtime compensation. (Pl. Defendants' have not correctly calculated the backpay to which Plaintiffs are entitled. Richard concedes, after this agreement, if he worked 75 hours instead of 80 hours, he would still get paid for 80 hours, whether he had banked hours or not. Id.

83.) There are sufficient questions of material fact on the issue of retaliatory discharge, specifically concerning Defendants' proffered reason for terminating Plaintiffs. In Singer, the district court offset overpayments made to city firefighters during certain two week periods against underpayments made during other two week pay periods. 2007). Her employment with Dog Star Ranch ended on June 23, 2008. Defendants have not proffered evidence of the availability of equivalent jobs in the area. 29 U.S.C. 778.106 and Halferty v. Pulse Drug Co., Inc., 821 F.2d 261, 271 (5th Cir.

No. Citing Roman, the court concluded the City's liablity could be offset by the comp time used by the plaintiffs. This conclusion is generally consistent with the cases cited by Defendants. 1985)). Elizabeth Schaub and Rebecca Herbert observed the conversation in the parking lot and did not hear either Richard or Carol raise their voices or get upset. (Herbert Affidavit 11; Pl. Ex. Id.

541.700(a). In September, October, and December he submitted resumes for janitor jobs at Hackley Hospital. Furthermore, this calculation of damages is consistent with the directives of the FLSA. The conversation lasted about 20 minutes and by the end Richard had calmed down. 2003). 1975), overruled on other grounds by Ruckelshaus v. Sierra Club, 463 U.S. 680, 687-88 (1983); see also Washington v. Kroger Co., 671 F.2d 1072 (8th Cir. 59-60.) See Matima, 228 F.3d at 80-81. If he needed time off or could not work a scheduled shift, Kukowski would call Richard or Carol. (Id. 39-42.) 148.) 103.) 1988), police officers under the rank of sergeant brought suit for unpaid overtime. Both Richard and Katy were terminated after explaining their concerns to Carol. 1983)). (Id. G R. Bray Affidavit 7.)

The court rejected the plaintiffs' calculation of damages, concluding it would result in the plaintiffs being paid three times for each hour of overtime: once in the form of paid time off, once as compensatory damages, and once as liquidated damages. (R. Bray Dep. Defendants assert that Richard failed to mitigate damages when he opted to enroll in school, citing authority from the Tenth and Eleventh Circuits. (R. Bray Affidavit 7. Id. The court justified its conclusion on D'Camera and on 29 U.S.C. The two went to the training area and sat down and Carol asked Katy what she wanted to discuss at the meeting. Before trial, the city conceded the comp time system violated the FLSA and argued any remedy must take into account the fact that the plaintiffs had already taken advantage of the paid time off given to them in lieu of monetary payments.

66.) (Id. 70-71.) 5 attachment E.) Defendants acknowledge that the FLSA doubles damages and therefore doubled the amount of underpayments, before subtracting the amount of overpayments. Although both Mr. Bray and Rebecca were across the room, they could hear Patrick yelling at Richard through Richard's cell phone.

134-35.)

541.102. (Id. 1985)). Dog Star Ranch provides day care, boarding, grooming, and training services for dogs on a 48 acre wooded facility in Whitehall, Michigan. (Id. (K. Bray Dep. ( Id. But see Brady v. Thurston Motor Lines, Inc., 753 F.2d 1269, 1274 (4th Cir. It was not until some point in 2008, that Richard "officially started actually doing the schedule." The plaintiff can establish pretext by showing the proffered reason (1) has no basis in fact, (2) did not actually motivate the defendant's decision, or (3) was insufficient to warrant the challenged decision. ( Id., 2.) Get your stuff and leave." 104.) (R. Bray Dep. (Id.

At his deposition, Richard agreed with the questioner that the interaction with Carol was "nonconfrontational." 60.) She made a list of jobs she found that she would be interested in pursuing. (Id. Id. 35.) 2005) (citing Romeo). Ex. C C. Yarnold Dep.

(Pl. 47; R. Bray Dep.

The next day, Carol and Pat left for a vacation. 33.) 28-29.) Ex. 8 Hladki Statement 6, 8.) In April 2009, Richard enlisted in the Navy. 2004); Matima v. Celli, 228 F.3d 68, 79 (2d Cir.

207(o) (emphasis added). The next officer training class, for which she would qualify, was not offered until May 2009. 76.) Id. Tennessee, Inc., 454 F.3d 549, 557 (6th Cir.

(Id. This usually happened because one of the employees wanted a day off and needed someone to cover their schedule. ( Id. In Roman v. Maietta Constr., Inc., 147 F.3d 71 (1st Cir. Ex. The burden then shifts back to the plaintiff to demonstrate that the proffered reasons are pretextual. Typically, mitigation of damages is an issue resolved by the finder of fact. Plaintiffs have offered a prima facie case of retaliation and Defendants have offered a legitimate reason for its decision to terminate Plaintiffs. (Id. at 592.

213(a)(1); see ACS v. Detroit Edison Co., 444 F.3d 763, 767 (6th Cir. No. Plaintiffs filed a response. 83-84.) Co., 29 F.3d 1078, 1084 (6th Cir. Oct. 25, 2001). ), Carol Yarnold offers a different version of her conversation with Richard. Once the moving party has carried its burden, the nonmoving party must set forth specific facts showing there is a genuine issue for trial. 71.) "A defendant satisfies its burden only by establishing that there were substantially equivalent positions available and that the plaintiff did not use reasonable care and diligence in seeking such positions." (Id.

The burden is on the moving party to show that no genuine issue of material fact exists, but that burden may be discharged by pointing out the absence of evidence to support the nonmoving party's case. Michigan, Southern Division. Defendants' calculation of backpay pays Plaintiffs for their overtime work at Plaintiffs' regular rate of pay, not at their overtime rate of pay. ( Id. It was then that Carol told Katy not to come back to work. Therefore, whether Plaintiffs' tone and attitude were sufficiently disrespectful to justify their termination is a question that must be answered by the jury. According to Carol, if Katy worked in excess of 40 hours, it was because Katy and another employee swapped shifts. Defendants need not establish that Richard had the authority to hire or terminate others as of January 1, 2007, rather, they only need to show Richard's suggestions or recommendations for hiring and termination were "given particular weight." Ex. Katy testified she never raised her voice during her meeting with Carol. Defendants argue Richard Bray met all the elements of an executive as of January 1, 2007 when his pay was increased to $600 per week and his primary duties were that of a manager. The record does not clearly establish that Plaintiffs' conduct was unruly, disruptive, or disrespectful. (Id. (Id. She applied for three or four positions on the list of six that she generated. In Miller v. Marsh, the parties conceded the issue of liability for the purpose of a summary judgment motion on mitigation of damages.

7 Kukowski Statement, 1.) Ex. NLRB v. Jackson Hosp. 27) is GRANTED IN PART and DENIED IN PART. The complaint alleges two claims under the Fair Labor Standards Act ("FLSA"). First, Defendants allege Richard Bray was a supervisor and therefore is not entitled to overtime as of January 1, 2007.

Coll., 839 F.2d 1132, 1139 (5th Cir. 27) is GRANTED IN PART and DENIED IN PART. Beginning on January 13, 2007 and running through June 14, 2008, Richard Bray received a paycheck every other week totaling $1,200.

F D. Bray Dep. Exemptions to the FLSA must be narrowly construed against the employer seeking to assert them. (Schaub Affidavit 14; Herbert Affidavit 10. 162-65.) The defendants ultimately paid the plaintiff for 105 of the 120.75 hours, but at the plaintiff's regular hourly rate. Carol told Katy she still had her job after the alleged yelling took place. Under the regulations, an employee is exempt as an executive from the wage and hour requirements if he or she (1) is compensated on a salary basis of not less than $455 per week, (2) has a primary duty of management in the business in which he or she is employed, (3) customarily and regularly directs the work of two or more other employees, and (4) "has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees are given particular weight." 76-77. Both Plaintiffs submitted a limited number of resumes and applications. According to Hladki, Richard did the scheduling, assigned tasks, instructed individuals on tasks, and corrected her when tasks were not done properly. 1988); Holden v. Owens-Wilson, Inc., 793 F.2d 745, 753 (6th Cir.

(Def. Finally, Defendants' subjective interpretation of Plaintiffs' tone, attitude and statements do not have objective support on this record. (C. Yarnold Dep. Accordingly, this court agrees with Defendants that they are entitled to an offset, but this court rejects Defendants' calculation of backpay.

An employee may be considered an executive even though the majority of his or her time is spent performing non-executive duties. (Dkt. 151.) Katy asked Carol if Carol wanted her to come in the morning, because she wasn't sure if she was still fired. 24-25.) 59.) The retaliation issue in this case is contested at the third stage of the McDonnell Douglas burden shifting scheme, whether the legitimate reason proffered by Defendants for the adverse employment action was pretext. ( Id. (Id., 1.)

Second, Plaintiffs allege they were discharged in retaliation for complaining about violations of the FLSA. (Id.) Under the agreement, if he worked more than 40 hours in a week, he would receive a paycheck for working 40 hours, and he would bank the extra hours and they would be applied to weeks where he worked less than 40 hours.

(Def. 2005) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). 207(a)(1); see Thomas v. Speedway Super America, LLC, 506 F.3d 496, 501 (6th Cir. Ex. (Def. Patrick remembers going to Dog Star Ranch found Carol in a meeting with Katy. 8.) Both Richard and Katy expressed concerns about the legality of the banking system.

( Id. Between June 23 and August 31, 2008, Katy also tried to join the Marines, which involved a lengthy application process. "); Sellers v. Delgado Cmty. ), The same day, Carol told Richard to go to lunch and then come out to the Yarnold's house so that she and Patrick could speak with him. (Def. Citicorp Indus. at 804. 5 attachment A.) 161.)

2001) ("[W]e reject Wagner's argument that, to establish a Title VII plaintiff's failure to mitigate, an employer must always present evidence of available, suitable employment, even when the employer has demonstrated that the plaintiff made no reasonable attempt to find work. 42.) If she worked more than 40 hours in a week, she was paid for 40 hours, and the overtime was banked for future use.

(Id. Id.

A plaintiff who removes himself or herself from the job market and enrolls in school "after a diligent job search does not constitute a failure to mitigate."

Of Mental Health, 714 F.2d 614, 624 (6th Cir. Id. Section 541.1(f) was amended and moved to section 541.100, and elsewhere, in 2004. (Def.

No. 96-97.) 92.) (Id. Id. Rescigno remembers hearing Richard "raising his voice loudly at Carol." 29 U.S.C. (Pl. Richard testified that at some point in 2007, about a year before his termination, he began reviewing the work of the Star Buddies and Cabin Buddies to make sure they were completing their tasks. Defendants have offered statements from several former or current employees at Dog Star Ranch, all of whom state that they considered Richard their supervisor. Furthermore, the appellate court held the district court's decision could not be based on section 207(h) of the FLSA. However, in the other cases cited by Defendants, the trier of fact was afforded the opportunity to determine whether the claimants mitigated damages. 541.106(a). The court concluded the plaintiff was entitled to his overtime rate, one and a half times his regular rate, for the entire 120.75 hours of overtime. A Cabin Buddy cleans the facilities and does not handle the dogs. (Id.)

Make your practice more effective and efficient with Casetexts legal research suite. (Id. Id. Casetext, Inc. and Casetext are not a law firm and do not provide legal advice. The defendants sued for monetary pay for the overtime worked for the period between April 15, 1986 and October 1, 1987.

(R. Bray Dep. 145.) 1985) and Taylor v. Safeway Stores, Inc., 524 F.2d 263, 268 (10th Cir. Carol and Richard both recall that Carol agreed to look into the situation. (Id. (Id. This district has cited this particular holding favorably. 28.) At that point, Carol told Katy "you don't get to throw your weight around in front of other employees. Greenway v. Buffalo Hilton Hotel, 143 F.3d 47 (2d Cir. ( Id. (Id. 31. 1999) (involving a retaliation claim under Title VII). (Id. ), The employees at the Dog Star Ranch were not paid for work done in excess of forty hours each week. Richard denies making decisions to hire someone on his own. Patrick, not Carol, terminated Richard more than one week after the incident occurred. 6-9.)

His employment with Dog Star Ranch ended June 23, 2008. 35.) Bennett v City of Eastpointe, 410 F.3d 810, 817 (6th Cir. See Suggs v. Servicemaster Educ.

144-45.) The record does not show Plaintiffs used curse words or threatened Carol. Br. He created these instructional documents at Carol's request because he had experience doing the job. Richard was required by the Unemployment Insurance Agency to certify that he was available for work and that he was looking for work. 54.) (Id.) Dist., 65 F.3d 98, 102 (8th Cir. When Richard offered reference points during his deposition testimony, he consistently stated that he did not assume duties typically performed by a supervisor until late 2007 or 2008.

Plaintiffs are entitled to be made whole; they are not entitled to a windfall at Defendants' expense. Section 213(a)(1) exempts from those requirements "employees employed in a bona fide executive, administrative, or professional capacity." Defendants liability must be determined by identifying those weeks in which Plaintiffs worked in excess of forty hours, and multiplying those excess hours by one-and-a-half times Plaintiffs' then hourly wages. 25-26.) Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (quoting Matsushita Elec. When Richard started working at the Dog Star Ranch, he claims he and Carol reached an agreement regarding overtime hours. 215(a)(3). Defendants filed a reply. The protests were limited to two meetings with Carol and the record does not clearly establish that these meetings disrupted either Plaintiffs' work, Carol's work, or the work of any other employee. See Harrison v. Admin. Shortly before June 13, 2008, Richard did some research on the internet and concluded the method of overtime payment at Dog Star Ranch was wrong. (Id.) 799 (D.D.C. 68.) Beginning on that date, he was paid more than $455 per week. Richard took three classes or thirteen hours each quarter. Although a close call, there are sufficient questions of material fact on the issue of mitigation of damages. (K. Bray Dep. 59.)

27.) 29 C.F.R. 105.) ( Id., 2.) 42; see K. Bray Dep. (Id. At some point during the conversation, Richard asked Patrick if he should come to work in the morning, to which Patrick replied "hell, no, who the F are you, you don't work here anymore." B K. Bray Dep. Furthermore, Carol, the individual who was allegedly yelled at, did not decide to terminate either Richard or Katy because of their allegedly loud voices. ), According to Richard, Baker College runs on a quarter system with fall classes running from September through December, winter classes running from January through March, and spring classes running from April through June. 2008). Neither Richard nor Katy were exemplars of determination at pursuing work after they were fired from the Dog Star Ranch. The firefighters were paid the same amount for each two week period. This court's own research reveals several cases from other circuits, not referenced by either party, that are analogous to Plaintiffs' situation. ), Carol Yarnold generally agrees with how the conversation occurred.

Michigan, Southern Division. Rescigno looked in Carol's office and saw the two sitting across from each other. Miller, 766 F.2d at 491-92. (Def. See Manzer, 29 F.3d at 1084. 4; Def. 2007)). For example, Richard initially provided Carol Yarnold input on the work schedule.