Covert v. ITT Educ. Servs. Inc.

BRIAN COVERT Plaintiff,

v. ITT EDUCATIONAL SERVICES, INC., d/b/a ITT TECHNICAL INSTITUTE,a Delaware corporation, Defendant.

Case No. 1:10-CV-00393-EJL-MHW

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

DATED: October 25, 2011

MEMORANDUM ORDER

INTRODUCTION

Pending before the Court in the above entitled matter is the Defendant's Motion for Summary Judgment. The parties have submitted responsive briefing on the Motion and the matter is now ripe for the Court's consideration. Having fully reviewed the record herein, the Court finds that the facts and legal arguments are adequately presented in the briefs and record. Accordingly, in the interest of avoiding further delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oralargument, this Motion shall be decided on the record before this Court without oral argument.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Robert Covert's Complaint alleges a violation of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., for failure to pay overtime compensation. (Dkt. 1.) Mr. Covert was employed by Defendant ITT Educations Services, Inc ("ITT") as a recruiter/admissions representative from November 9, 2007 to March of 2010. (Dkt. 15-1 at p. 3.) Mr. Covert alleges he worked over his lunch hour and beyond his scheduled shift hours on a regular basis, working an average of 50-55 hours per week during the busy times of the year. (Dkt. 1 at ¶¶ 8, 10.) Mr. Covert asserts he, as well as his co-workers, were told by their supervisors to keep track of their overtime separately from their regular hours recorded on handwritten timecards and that they would receive comp time for the overtime hours. (Dkt. 1 at ¶ 11.) If overtime hours were reported on the timecard, Mr. Covert alleges, his superior would instruct him to edit his time card to remove the overtime hours or his timecard would not be signed and he would not be paid. (Dkt. 1 at ¶ 13.) As a result, Mr. Covert claims he suffered lost wages and overtime pay and has filed this FLSA claim to recover such damages. ITT has filed the instant Motion for Summary Judgment arguing the claim should be dismissed as a matter of law. The Court finds as follows.

STANDARD OF LAW

Motions for summary judgment are governed by Rule 56 of the Federal Rules of Civil Procedure. Rule 56 provides, in pertinent part, that "[t]he court shall 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. The court should state on the record the reasons for granting or denying the motion." Fed. R. Civ. P. 56(a). "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) 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; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1).

The party moving for summary judgment has the initial burden of showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, 477 U.S. 242, 247-48 (1986). Once the moving party has met this initial burden, the nonmoving party has the subsequent burden of presenting evidence to show that a genuine issue of fact remains. The party opposing the motion for summary judgment may not rest upon the mere allegations or denials of her pleading, but must set forth specific facts showing that there is a genuine issue for trial. Id. at 248. If the non-moving party "fails to make a showing sufficient to establish the existence of an element essentialto that party's case, and on which that party will bear the burden of proof at trial" then summary judgment is proper as "there can be no 'genuine issue of material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).¹

Moreover, under Rule 56, it is clear that an issue, in order to preclude entry of summary judgment, must be both "material" and "genuine." An issue is "material" if it affects the outcome of the litigation. An issue, before it may be considered "genuine," must be established by "sufficient evidence supporting the claimed factual dispute . . . to require a jury or judge to resolve the parties' differing versions of the truth at trial." Hahn v. Sargent, 523 F.3d 461, 464 (1st Cir. 1975) (quoting First Nat'l Bank v. Cities Serv. Co. Inc., 391 U.S. 253, 289 (1968)). The Ninth Circuit cases are in accord. See, e.g., British Motor Car Distrib. V. San Francisco Automotive Indus. Welfare Fund, 883 F.2d 371 (9th Cir. 1989).

According to the Ninth Circuit, in order to withstand a motion for summary judgment, a party

(1) must make a showing sufficient to establish a genuine issue of fact with respect to any element for which it bears the burden of proof; (2) must show that there is an issue that may reasonably be resolved in favor of either party; and (3) must come forward with more persuasive evidence than would otherwise be necessary when the factual context makes the non-moving party's claim implausible.

Id. at 374 (citation omitted). Of course, when applying the above standard, the Court must view all of the evidence in the light most favorable to the non-moving party. Anderson, 477 U.S. at 255; Hughes v. United States, 953 F.2d 531, 541 (9th Cir. 1992).

DISCUSSION

1. FLSA Claim

The FLSA requires an employer to pay overtime compensation to employees who work more than forty hours per week unless certain FLSA exemptions apply. See 29 U.S.C. § 207(a)(1). Under Section 7 of the FLSA, "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." Solis v. Best Miracle Corp., 709 F.Supp.2d 843, 850 (C.D. Cal. 2010) (quoting 29 U.S.C. § 207).

The plaintiff in an FLSA action bears the burden of proving as a matter of just and reasonable inference that he or she performed work for an employer, and was not properly compensated. Chao v. Westside Drywall, Inc., 709 F.Supp.2d 1037, 1060 (D.Or. 2010) (citing Imada v. City of Hercules, 138 F.3d 1294, 1296 (9th Cir. 1998) (citing Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 686-877 (1946)); see also Fenters v. YosemiteChevron, 761 F.Supp.2d 957, 1001-02 (E.D. Cal. 2010) ("An employee seeking to recover unpaid minimum wages or overtime under the FLSA 'has the burden of proving that he performed work for which he was not properly compensated.'") (quoting Mt. Clemens Pottery Co., 328 U.S. at 687); see also Brock v. Seto, 790 F.2d 1446, 1447-48 (9th Cir. 1986); Ulin v. ALAEA-72, Inc., No. C-09-3160-EDL, 2011 WL 723617, at *11-12 (Feb. 23, 2011 N.D. Cal. 2011); see also Peterson v. Snodgrass, 683 F.Supp.2d 1107, 1125-26 (D.Or. 2010). "[A]n employee has carried out his burden 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 a just and reasonable inference." Mt. Clemens Pottery, 328 U.S. at 687. "In view of the remedial purpose of the FLSA and the employer's statutory obligation to keep proper records of wages, hours and other conditions and practices of employment, this burden is not to be 'an impossible hurdle for the employee.'" Fenters, 761 F.Supp.2d at 1002.

The burden of record-keeping is on the employer. See 29 U.S.C. § 211(c).² "If an employee establishes that overtime hours and wages were not recorded by the employer as required by the FLSA, 'an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficientevidence to show the amount and extent of that work as a matter of a just and reasonable inference.'" Fenters, 761 F.Supp.2d at 1002; see also Peterson, 683 F.Supp.2d at 1126 (quoting Mt. Clemens Pottery, 328 U.S. at 687-88) ("When an employer fails to keep adequate employment records, an employee may make a prima facie case of overtime violations if she produces 'sufficient evidence to show the amount and extent of [her] work as a matter of just and reasonable inference.'"). "The burden then shifts to the employer to show the precise number of hours worked or to present evidence sufficient to negate 'the reasonableness of the inference to be drawn from the employee's evidence.'" Id. (quoting Mt. Clemens Pottery, 328 U.S. at 688); see also Peterson, 683 F.Supp.2d at 1126 (citing Brock, 790 F.2d at 1448) ("Once the employee establishes a prima facie case, the burden then shifts back to the employer to rebut the number of hours alleged by presenting specific evidence disproving those hours."). "An employee is entitled to summary judgment based upon a reasonable estimate of hours worked when there is no factual dispute that the employer failed to keep adequate records of time worked and the employer submits no other evidence negating the reasonable inference to be drawn from the employee's evidence." Peterson, 683 F.Supp.2d at 1126. "If the employer fails to make such a showing, the court 'may then award damages to the employee, even though the result be only approximate.'" Fenters, 761 F.Supp.2d at 1002.

Here, ITT argues because it has maintained accurate detailed records of hours worked, it is Mr. Covert's burden to offer sufficiently particular evidence to...