United States District Court, E.D. Michigan, Northern Division
R. ALEXANDER ACOSTA Secretary of Labor, United States Department of Labor Plaintiff,
TIMBERLINE SOUTH LLC, a Michigan limited liability company, and JIM PAYNE, an individual, Defendants.
PATRICIA T. MORRIS JUDGE
ORDER GRANTING SUMMARY JUDGMENT AS TO
L. LUDINGTON UNITED STATES DISTRICT JUDGE
April 29, 2016, Plaintiff Secretary of Labor filed a
Complaint against Defendants Timberline South LLC, a timber
felling concern, and its manager Jim Payne, alleging
violations of the overtime and recordkeeping provisions of
the Fair Labor Standards Act of 1938. ECF No. 1. The parties
filed cross motions for summary judgment. ECF Nos. 18, 19. On
October 6, 2017, the Court entered an order denying
Defendant's motion for summary judgment, granting
Plaintiff's motion for summary judgment in part as to the
issues of liability and liquidated damages, and ordered
supplemental briefing on damage calculation. ECF No. 33. On
October 20, 2017, Defendants filed a motion for
reconsideration of the Court's conclusion that Defendants
are liable for liquidated damages under the FLSA. ECF No. 35.
On February 14, 2018, the motion was denied. ECF No. 42.
Defendants took issue with Plaintiff's damage calculation
for several reasons, and a second round of supplemental
briefing was ordered. ECF No. 43. Plaintiff was directed to
address the following outstanding issues identified by
. Plaintiff should provide a declaration
signed by Jeffrey Wrona or furnish legal authority for the
proposition that the current declaration is competent
evidence to be considered at summary judgment.
. Plaintiff should address the issue of
overlapping workweek entries for the weeks of August 7, 14,
16, 21 and 23, 2015, and revise its calculations accordingly.
This appears to be an issue in all three of its Transcription
and Computation sheets.
. Plaintiff should further explain how it
calculated that drivers work an average of 60 hours per week
and equipment operators work an average of 51 hours per week.
Plaintiff should identify who the “similarly situated
employees” are whose records were used to calculate
those averages and cite to the applicable page ranges in the
. Plaintiff should address Defendants'
contention that “Crawford is one of the non-hourly
employees for which hourly records exist.” Def Br. at
15 (citing ECF No. 19-9). If hourly records do exists for
him, Plaintiff should also address why they were not used.
Finally, Plaintiff should explain why its overtime total for
Mr. Crawford changed from roughly $780 to over $2, 000.
has now submitted Mr. Wrona's original declaration with
his signature. With respect to the overlapping workweek
entries for the hourly employees for the weeks of August 7,
14, 16, 21, and 23, 2015, Plaintiff asserts that Randy
Newberry was the only employee for whom overlapping overtime
wages were assessed, in an amount of $20.63, which Plaintiff
has removed from its revised back wage computations. Pl.
Suppl. Br. at 2-3. In response, Defendants contend that Mike
Lube's third computation sheet contains 9 overlapping or
duplicate date entries, including January 22, 29, February 5,
12, 19, 26, March 4, 11, 18, 2016, and January 20, 27,
February 3, 10, 17, 24, March 10, 17, 2016. Plaintiff appears
to have made a typographical error. The workweeks between
Jan. 20 and March 17, 2016 should in fact reflect the year as
2017, not 2016. Indeed, January 20-March 17, 2017 is
otherwise unaccounted for in Plaintiff's computation
sheet for Mike Lube. Additionally, the workweeks ending
January 20-March17 correspond to the year 2017 for the other
hourly employees, not the year 2016 (in which the workweeks
ended January 22, 29, etc). Furthermore, the payroll journal
for Mike Lube (ECF No. 18-11 at 19) correctly reflects the
year 2017 for January 20-March 17 workweeks, and the dollar
amounts match up to the workweeks listed in the computation
sheets. Rather than directing another round of supplemental
briefing on this issue, Defendants will be given the benefit
of the doubt with respect to these workweeks, and the
overtime award will be reduced accordingly. Of the two
periods of time containing allegedly overlapping workweeks,
January 22-March 18, 2016 contain the higher amounts for
overtime due, totaling $6, 060. That amount will be deducted
from the award.
was also directed to explain how the average hours were
calculated for truck drivers and equipment operators.
Plaintiff has now identified the records relied upon in
making this calculation, and has also revised this
calculation to incorporate data for the updated time period
from Defendants' second payroll journal (which reduced
the average hours for truck drivers and equipment operators
to 55 and 48 hours, respectively). In response, Defendants
contend the updated calculation should have been made sooner.
In any event, Defendants do not dispute that the update
calculation has now been made.
also argue that the data “remains fatally flawed”
because it “does not discount travel or lunch
time.” Def. Suppl. Br. at 6-7. This argument was
already addressed in the Court's initial order granting
summary judgment in part. ECF No. 33 at 27. Defendants offer