Jennifer Jenkins v. S. David Anton, PA

Case: 17-13073 Date Filed: 04/29/2019 Page: 1 of 31

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 17-13073
________________________

D.C. Docket No. 8:15-cv-00283-JSM-AEP

JENNIFER JENKINS,

Plaintiff-Appellant,

versus

S. DAVID ANTON, PA,
d.b.a. Anton Legal Group,
S. DAVID ANTON,
individually,

Defendants-Appellees.
________________________

Appeal from the United States District Court
for the Middle District of Florida
________________________

(April 29, 2019)

Before TJOFLAT, MARCUS, and, NEWSOM, Circuit Judges.

TJOFLAT, Circuit Judge:

Jennifer Jenkins worked as a paralegal for David Anton for about nine

months. She had a flexible work schedule, and records of the hours she worked
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were not kept. After her employment ended, Jenkins sued Anton and his law firm

for unpaid overtime wages under the Fair Labor Standards Act. The case was tried

to the District Court, which entered judgment in favor of Anton. Jenkins moved

for relief under Rules 59 and Rule 60 of the Federal Rules of Civil Procedure. Her

motion was denied, and she appealed. On appeal, she says the District Court

abused its discretion by denying relief under Rule 59 and Rule 60. She also argues

that the Court misapplied the legal standard in ruling against her, and she claims

the Court should have recused. We affirm.

We divide our discussion into three parts. First, we set out the evidence that

was presented to the District Court during the bench trial. Second, we consider the

arguments on appeal. Third, we conclude.

I.

We refer to Jenkins as “Employee” and Anton as “Employer” for

convenience.

A.

The parties stipulated to a bench trial. Almost two weeks thereafter,

Employee filed a notice of disclosure with the District Court. There, she notified

the District Court that Employer had represented the District Judge’s ex-wife in the

couple’s divorce proceedings. Employee never asked the District Judge to recuse,

and he continued to preside over the case. The case proceeded to trial.

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At trial, the parties told two very different stories. According to Employee,

she typically arrived in the office by 8:15 a.m. and left sometime between 6:30

p.m. and midnight. She said she worked about 70 hours a week. Altogether, she

claimed that she worked 711 hours of unpaid overtime. (This was a revised

calculation; she originally claimed 1078.88 hours but reduced the number at trial

after reviewing documents she received in discovery and after subtracting

vacation-related time.) To support her claim for overtime, Employee introduced

into evidence emails that she sent Employer after normal business hours and on

weekends. She also argued that these emails were probably just a subset of all the

emails she sent after hours. She didn’t have all of the emails because soon after

she left the law firm, her successor deleted many of her emails.

Employer told a different story. He said that Employee originally agreed to

work a fixed schedule. But the schedule became more flexible, according to

Employer, because Employee took a lot of time off and worked later hours to make

up the time. He didn’t keep a record of the hours she worked, but he testified that

she never worked more than 40 hours a week. He gave a few reasons why he

believed that. First, Employer said that Employee’s predecessor never worked

“anywhere near 40 hours a week.” (Employee’s predecessor did not testify, and

that becomes important later.) Employee’s successor never worked overtime,

either. Second, he explained that his practice was slow while Employee worked

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for him. 1 Third, he noted that he could see her office from his, and he saw her

studying—not working—at times. 2

Employer also addressed the emails that Employee sent after hours and on

the weekends: he said it would not have taken Employee more than a few minutes

to type those emails and to send them to him. They were short emails.

Other witnesses echoed Employer’s testimony. For example, the firm’s

bookkeeper—who came in two days a week, four hours each day, the entire time

Employee worked at the firm—never saw Employee working at a “harried pace.”

Nor did the bookkeeper ever notice Employee being pressed for time at work. In

the bookkeeper’s opinion, there was not enough work at the firm to fill even 40

hours of Employee’s time each week. And Employee never told the bookkeeper

that she was working overtime and should be paid for it, even though the

bookkeeper was the one who told the payroll company how many hours each

employee should be paid for, which Employee knew.

Another witness bolstered Employer’s testimony. This witness worked for a

different lawyer, but she shared the same office space as Employee for three

months. She said that Employee’s workload was “[n]ot particularly heavy”; most

1
Employer introduced billing records from several years to support this statement. In
2011, his firm billed 1883 hours. In 2012, his firm billed 1809 hours. In 2013—the year
Employee worked for him—his firm billed 1342 hours. And in 2014, his firm billed 1851 hours.
2
Employee was taking college classes while working for Employer.
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of the clients belonged to the lawyer she worked for and not Employer. And

Employee did not work on matters related to those clients. The witness explained

that her boss eventually left the firm, and Employer kept her on for a while. There

was not enough client-related work to keep the witness busy, so Employer asked

her to clean the office and to organize rooms. Employer eventually had to let the

witness go because there was not enough work for her to do.

The same witness also replaced Employee when she left Employer’s law

firm. Despite taking over all of Employee’s responsibilities, and despite having

less paralegal experience than Employee, the witness did not work overtime for

Employer.

Finally, Employer’s current paralegal testified. She said that Employer had

about 15 active cases that she worked on. With that caseload—which was similar

to Employer’s caseload while Employee worked for him—she had never worked

overtime. 3 In fact, the witness said, she didn’t even work 40 hours a week.

As is apparent from our discussion thus far, much of the testimony was

pretty vague and generic. But the parties did testify more specifically about the

work Employee did—or didn’t do—during an arbitration that Employer handled

and Employee attended. The arbitration lasted four days, Tuesday through Friday.

3
Employer testified that he had 17 active cases when Employee started. He said that he
typically has anywhere from 12 or 15 to 20 active cases at one time.
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The parties agreed that Employee worked the Saturday and Sunday before the

arbitration. But Employer said that Employee “took a lot of time off” during the

normal workweek (Monday through Friday) that preceded the weekend. (As we

explain below, it is important whether the hours Employee worked on Sunday

count as part of her workweek for the week of the arbitration, or if they count as

part of the prior workweek.) Employee claimed she worked “13 or 14 hours” the

Monday before the arbitration.

As for the arbitration itself, each day had a three-hour morning session,

followed by an hour-and-a-half lunch break, and a three-hour afternoon session.

During lunch, Employer and Employee stayed at the facility and ate with their

expert witness. Both parties agreed that they talked about the case during lunch.

Employee testified that she worked “about 70 hours” or “[a] little over 70 hours”—

like she did “most weeks”—the week of the arbitration.

B.

The District Court resolved the he-said-she-said swearing match in

Employer’s favor. It concluded that Employer’s “testimony [was] more credible

because it better matche[d] the other evidence . . . , particularly the testimony of

other employees.” Based on this credibility determination, the Court found that

Employee did not prove that she worked more than 40 hours in any given

workweek.

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The Court explained some of the evidence that supported Employer’s

version of events. It noted that the firm billed fewer hours the year that Employee

worked there than it did the two years before Employee came on and the year after

she left. This was consistent with Employer’s claim that business was slower than

normal while Employee worked for him. The Court also found that Employer’s

description of his practice was consistent with the bookkeeper’s; the bookkeeper

said that Employer’s practice was not busy compared to other lawyers she worked

for, and she never noticed Employee rushing or working through lunch.

Employer’s version was also consistent with the testimony of Employee’s

successor. The Court pointed out that Employer had the successor do “busy work”

during the three months that she overlapped with Employee, and this was because

Employee needed no help with paralegal work. The successor also said that the

workload was light when she took over for Employee, and she never worked

through lunch or on a weekend. And finally, Employer’s current paralegal testified

that she never came close to working overtime.

The Court discounted the emails that Employee sent after normal business

hours because many of them would have taken Employee no more than “two or

three minutes to draft.” Others were unrelated to work or asked for time off. The

Court said the closest Employee came to proving that she worked overtime was the

week of the arbitration. It found that the time Employee worked the Saturday

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before the arbitration did not make up for the time she took off earlier in the week.

The Court said Employee’s claim that she worked late the Monday before the

arbitration was “conclusory” because she didn’t identify any work she did. It also

rejected Employee’s claim that the lunches during the arbitration were working

lunches because she didn’t point to any work she did and said only that they talked

about what happened during the morning sessions. And finally, Employee’s claim

that she worked late nights during the arbitration suffered a similar fate: the Court

rejected it because Employee didn’t identify any work she did.

Employee moved for relief under Rule 59 and Rule 60 based on several

grounds. The District Court denied the motion, and Employee appealed. We

explain below why the District Court denied relief under Rule 59 and Rule 60.

II.

Employee makes four arguments on appeal: (1) the District Court abused its

discretion by denying relief under Rule 59, (2) the District Court abused its

discretion by denying relief under Rule 60, (3) the District Court misapplied the

legal standard when it found that Employee did not prove she worked overtime,

and (4) the District Court abused its discretion by not recusing sua sponte. We

take up each argument separately.

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A.

Employee moved the District Court to alter or amend the judgment under

Rule 59(e).4 Alternatively, she moved to open the judgment under Rule 59(a)(2)

or for a new trial under Rule 59(a)(1)(B). 5 We first set out the relevant legal

standards and then consider Employee’s arguments.

1.

Under Rule 59(e), a district court may “alter or amend a judgment.” Fed. R.

Civ. P. 59(e). There are no specific grounds for relief listed in Rule 59(e). But we

have said that a district court may alter or amend a judgment that is based on

“manifest errors of law or fact.” See Metlife Life & Annuity Co. of Conn. v.

Akpele, 886 F.3d 998, 1008 (11th Cir. 2018). The Rule 59(e) motion looks back at

4
Rule 59(e) reads as follows: “(e) Motion to Alter or Amend a Judgment. A motion to
alter or amend a judgment must be filed no later than 28 days after the entry of the judgment.”
Fed. R. Civ. P. 59(e).
5
Here are the relevant parts of Rule 59(a):
Rule 59. New Trial; Altering or Amending a Judgment
(a) In General.
(1) Grounds for New Trial. The court may, on motion, grant a new trial on all or
some of the issues—and to any party—as follows:
...
(B) after a nonjury trial, for any reason for which a rehearing has heretofore been
granted in a suit in equity in federal court.
(2) Further Action After a Nonjury Trial. After a nonjury trial, the court may,
on motion for a new trial, open the judgment if one has been entered, take
additional testimony, amend findings of fact and conclusions of law or make new
ones, and direct the entry of a new judgment.
Fed. R. Civ. P. 59(a).
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what was; it does not look forward at what could have been. For this reason, a

district court should not grant relief under Rule 59(e) after a nonjury trial based on

newly discovered evidence.6 We review a district court’s decision on a Rule 59(e)

motion for abuse of discretion. Jacobs v. Tempur-Pedic Int’l, Inc., 626 F.3d 1327,

1343 n.20 (11th Cir. 2010).

Rule 59(a)(2), by contrast, does look forward at what could have been. It

says that “[a]fter a nonjury trial, the court may, on motion for a new trial, open the

judgment if one has been entered, take additional testimony, amend findings of fact

and conclusions of law or make new ones, and direct the entry of a new judgment.”

6
This is not to say a party is out of luck if it wants to present newly discovered evidence
after a nonjury trial. Our point is only that Rule 59(e) is the wrong vehicle. Indeed, Rule
59(a)(2) specifically allows a district court to open the judgment, take additional evidence,
amend its findings of fact and conclusions of law, and enter a new judgment. Rule 60(b)(2)
reinforces this reading of Rule 59(e):
Rule 60. Relief from a Judgment or Order
(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On
motion and just terms, the court may relieve a party or its legal representative
from a final judgment, order, or proceeding for the following reasons:
...
(2) newly discovered evidence that, with reasonable diligence, could not have
been discovered in time to move for a new trial under Rule 59(b)[.]
Fed. R. Civ. P. 60(b) (emphasis added). Rule 59(b) simply says how many days—after judgment
is entered—that a party has to file a motion for new trial under Rule 59(a). So, Rule 60(b)(2)
supports our reading of Rule 59(e) because Rule 60(b)(2) strongly suggests that Rule 59(a) is the
proper vehicle for a new motion based on newly discovered evidence. But if the party discovers
the new evidence more than 28 days after judgment is entered and misses the Rule 59 cutoff, see
Rule 59(b), the party may then move for relief under Rule 60(b).
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Fed. R. Civ. P. 59(a)(2). A party should use this vehicle if it wants to present

newly discovered evidence after a nonjury trial. See supra note 6.

And under Rule 59(a)(1)(B), a district court may grant a new trial “after a

nonjury trial, for any reason for which a rehearing has heretofore been granted in a

suit in equity in federal court.” Fed. R. Civ. P. 59(a)(1)(B). As relevant for our

purposes, a district court may grant a new trial if “the verdict . . . will result in a

miscarriage of justice.” 7 Hewitt v. B.F. Goodrich Co., 732 F.2d 1554, 1556 (11th

Cir. 1984) (quoting United States v. Bucon Constr. Co., 430 F.2d 420, 423 (5th

Cir. 1970)). We also review a district court’s decision on a Rule 59(a) motion for

abuse of discretion. See id.

2.

Employee argued that she was entitled to relief based on three grounds: (1) a

previously unavailable witness was now available, (2) a newly discovered email

that showed possible spoliation, and (3) errors related to the Court’s finding that

she did not work overtime the week of the arbitration. In effect, she argued that

relief was appropriate under all three subsections—Rule 59(e), Rule 59(a)(2), and

Rule 59(a)(1)(B)—based on each of the three claimed grounds. 8 We consider each

7
A district court may also grant a new trial under Rule 59(a) if “the verdict is against the
clear weight of the evidence.” Hewitt v. B.F. Goodrich Co., 732 F.2d 1554, 1556 (11th Cir.
1984) (quoting United States v. Bucon Constr. Co., 430 F.2d 420, 423 (5th Cir. 1970)).
8
We should note that Employee made her arguments to the District Court without tying
them to the proper Rules. Instead, she made her arguments and then dumped at the end a cite to
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ground—and whether it triggers relief under Rule 59(e), Rule 59(a)(2), or Rule

59(a)(1)(B)—separately.

i.

First, Employee asked the District Court to grant relief because her

predecessor, an “impeachment witness,” was unable to testify during the trial. We

begin with Rule 59(e) and make quick work of it. The testimony of Employee’s

predecessor is additional evidence. Call it evidence from a previously “unavailable

witness”—as Employee called it before the District Court—or call it newly

discovered evidence—as Employee calls it on appeal. The point is that the

testimony is additional evidence; it’s not a mistake in the judgment. Thus, relief

under Rule 59(e) is inappropriate.

Now for Rule 59(a)(2). According to Employee, the District Court relied on

Employer’s testimony in deciding the case in Employer’s favor. And during

Employer’s testimony, he said that his office was not busy enough to require

overtime, and he said that Employee’s predecessor never worked any overtime.

In turn, Employee planned to “attack [Employer’s] credibility” on this issue

by calling her predecessor as a witness. Her predecessor, Employee said, would

“directly rebut” Employer by testifying that she regularly worked 20 hours of

Rule 59(e), Rule 59(a), and Rule 60(b). To impose necessary structure, we pick her arguments
that belong under each Rule and analyze them separately.
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overtime during her employment. Employee coordinated with Court personnel so

that her predecessor (who lived in Chicago) could testify by videoconference. But

after the trial began, it was continued, 9 and Employee was unable to contact or

locate her predecessor when the trial picked back up a month later. As it turned

out, her predecessor had been in the hospital and had no access to her phone or

email.

Oddly, Employee never brought any of this to the District Court’s attention.

Nor did she ask for a continuance so that she could locate this important witness.

Employee kept the issue to herself apparently because she did not know why her

predecessor was unavailable to testify. And because she didn’t know why her

predecessor was unavailable, she apparently thought she couldn’t notify the

District Court or ask for a continuance.

The District Court never raised the issue with the parties because it had no

way of knowing that Employee planned to call this witness. Indeed, Employee

never listed her predecessor on her trial witness list. And this must have been

strategic because Employee knew—more than a year before the trial started—that

Employer would say (if asked) that Employee’s predecessor never worked

9
Employee asked for a continuance because her son suffered a traumatic brain injury
after the first day of trial. The Court granted the continuance, and things resumed about a month
later.
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overtime. And Employee knew this because Employer said as much in his

deposition.

To sum up, Employee knew well before trial that, if asked, Employer would

say that Employee’s predecessor never worked overtime. So, Employee had her

predecessor waiting in the wings, planning to call her to flatly contradict

Employer’s sworn testimony. Yet she never tried—at least not on the record

before the District Court—to call her predecessor as a potential witness.

As we said above, Rule 59(a)(2) is the proper vehicle if a party wants to

present newly discovered evidence after a nonjury trial. But this evidence—

despite Employee’s label for it—is not newly discovered. Quite the opposite.

Employee was making plans and setting up the logistics to call her predecessor as a

witness before the trial began. The only thing that is “new” about the testimony

from Employee’s predecessor is that she’s finally available to give it. 10 But this

10
There’s one thing we should point out on the topic of newly discovered evidence. On
appeal, the parties spend a lot of time arguing about how to label the testimony of Employee’s
predecessor. On the one hand, Employee says that her predecessor’s testimony potentially
shows that Employer committed perjury. On the other hand, Employer says that the testimony is
impeachment only. This perjury-or-impeachment distinction would matter if the testimony from
Employee’s predecessor were newly discovered evidence. This is because, as the parties agree,
newly discovered evidence does not trigger Rule 59 relief if that evidence simply impeaches
other testimony or evidence. See Davis v. Yellow Cab Co. of St. Petersburg, 220 F.2d 790, 792
(5th Cir. 1955) (Davis is binding because in Bonner v. City of Prichard, 661 F.2d 1206, 1207
(11th Cir. 1981) (en banc), this Court adopted as binding precedent all decisions of the former
Fifth Circuit handed down by the close of business on September 30, 1981). But this general
rule does not apply when the newly discovered evidence potentially shows perjury. See United
States v. Espinosa-Hernandez, 918 F.2d 911, 913–14 (11th Cir. 1990).
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does not help Employee, either, which takes us to the miscarriage-of-justice

argument she made to the District Court.

In her motion to the District Court, Employee argued that it would be a

“miscarriage of justice” if her predecessor were not allowed to testify. Her

predecessor would “directly challenge” the reliability of Employer’s testimony,

and the District Court, according to Employee, relied heavily on Employer’s

credibility.

The District Court rejected the argument: “[T]here is no miscarriage of

justice when [Employee’s] inability to present [her predecessor’s] testimony was

due to [Employee’s] strategic choices.” The Court noted that Employee was not

surprised by Employer’s testimony because he gave the same testimony in his

deposition. And the Court pointed out that Employee coordinated with her

predecessor “in preparation for trial.” The Court summed up with this: “If

[Employee] wanted to ensure that the Court benefitted from [her predecessor’s]

testimony, she should have taken [her predecessor’s] deposition and entered it into

evidence.”

The District Court denied relief under Rule 59(a) because “impeachment evidence is not
sufficient to warrant a new trial.” So, the parties understandably devote a good deal of the
briefing to this issue. But because we find that the evidence is not newly discovered, we need
not wade into the perjury-or-impeachment issue.
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The District Court did not abuse its discretion by denying relief under Rule

59(a)(2). Specifically, there’s no miscarriage because Employee made a strategic

decision—to rest her case without asking for a continuance so that she could call

her predecessor—and it backfired. And we know it was a strategic decision

because nothing prevented Employee from raising the issue with the District Court

and asking for a continuance. She claimed that she could not ask for a continuance

because she did not know why her predecessor was unavailable. But the District

Court could have granted a continuance if Employee made a showing of “good

cause.” M.D. Fla. Local Rule 3.09(a). And nothing in the local rules requires a

party to explain why a witness is unavailable when asking for a continuance

because an important witness is unavailable. Perhaps the District Court would

have denied the request for a continuance—after all, Employee would have needed

to explain why she left her predecessor off her witness list—but nothing prevented

Employee from at least raising the issue.

Now, with the benefit of hindsight, and with the benefit of knowing that the

District Court rejected her position at trial, Employee says her predecessor’s

testimony is indispensable. Without it, she says, there’s a miscarriage a justice.

We disagree. Here, Rule 59(a)(2) relief is inappropriate because Employee (1)

knew about the testimony, (2) did not ask for a continuance, (3) hoped for the best,

and (4) now, with the benefit of hindsight, asks for a second bite at the apple.

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* * *

We quickly pause to make an obvious observation: when a party asks for

relief under Rule 59(a)(2) based on newly discovered evidence, the evidence must

in fact be newly discovered. This case shows why. If we endorsed Employee’s

theory, parties would be incentivized to strategically manipulate Rule 59(a)(2).

They would do so by rolling the dice and trying their case without a witness that

they knew about well before trial. Then, they would wait and see if they won.

Next, if they lost, they would run to the District Court asking for relief under Rule

59. Conveniently, that witness they chose not to call is—all of sudden—necessary

for a full and complete trial. But odds are, if the witness really is necessary for a

full and complete trial, the party would have presented the witness at trial. Or, if

the witness was unavailable, the party would have at least asked for a continuance.

If the party is willing to chance it by going to trial without the witness, we doubt

that the witness is really that helpful. Even if the party’s after-the-fact request for

relief says otherwise. In any event, Rule 59(a)(2) does not reward parties who roll

the dice with this wait-and-see approach.

ii.

Second, Employee asked the District Court to grant relief because she

discovered evidence after the trial that suggests Employer might have intentionally

deleted evidence. We again begin with Rule 59(e), and we again make quick work

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of it. Relief under Rule 59(e) is inappropriate because the ground for relief is

newly discovered evidence.

Now for Rule 59(a)(1)(B) (new trial) and Rule 59(a)(2) (open the judgment

on a motion for new trial). The newly discovered evidence was an email that

Employer allegedly sent to his IT specialist two months after Employee filed this

lawsuit.11 In the email, Employer asked his IT specialist to “delete all emails from

2014 and earlier” from the server’s deleted items folder. In her brief to the District

Court, Employee argued that this evidence looked “like a deliberate attempt by

[Employer] to destroy material information.” And because Employer did not turn

the email over during discovery, Employee was unable to explore whether

Employer engaged in spoliation.

The District Court rejected the argument. It concluded that Employee did

not “satisfactorily” explain how her approach would have changed if she had seen

the email before trial. The Court reasonably guessed that Employee would use the

email to impeach Employer, but it explained that impeachment evidence isn’t

sufficient grounds for granting a new trial.

Next, the Court assumed that the email showed spoliation and asked whether

applying an evidentiary presumption—that the deleted emails contained

11
Employee says she received this email via U.S. mail two days after the District Court
entered judgment in Employer’s favor. She claims there was no return address or other
information on the envelope showing who sent it.
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information that was unfavorable to Employer—would change the outcome of the

trial. It held that the evidentiary presumption wouldn’t change anything. The

Court explained that Employee never claimed that the allegedly deleted emails

would prove that she worked overtime. It said that, at best, the emails would show

that Employee sent or received additional emails outside normal business hours.

But the Court said it was aware during trial that additional emails like that might

have existed; indeed, the Court heard testimony that Employee’s successor deleted

emails soon after Employee was terminated. Plus, there were emails introduced at

trial showing that Employee sent or received emails outside normal working hours.

Thus, the Court reasoned, additional emails would have been cumulative.

Finally, the Court explained that the email evidence would not prove that

Employee worked overtime because there was evidence showing that she had a

“flexible work schedule” and often took time off during normal hours. Nor could

the email evidence overcome “significant testimony” from other witnesses. Two

of these witnesses overlapped with Employee’s time at the firm and testified that

there was not enough work for Employee to work overtime. And two witnesses

who succeeded Employee testified that they never even “came close” to working

overtime.

Relief under Rule 59(a)(1)(B) and Rule 59(a)(2) is inappropriate because the

email would not have affected the outcome of the trial. See, e.g., 11 Charles Alan

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Wright et al., Federal Practice & Procedure § 2808 (3d ed. Nov. 2018) (“Evidence

that will not change the result does not merit a new trial [under Rule 59(a)]. Thus,

newly discovered evidence that would merely affect the weight and credibility of

the evidence ordinarily is insufficient for a new trial, as is evidence that is

cumulative of evidence already offered.” (footnotes omitted)). In light of the entire

record, the District Court reasonably concluded that the outcome of the trial would

have been the same, even if the email showed spoliation and the Court applied an

evidentiary presumption against Employer. Thus, the District Court did not abuse

its discretion by denying relief under Rule 59(a)(1)(B) and Rule 59(a)(2) based on

the newly discovered email. 12

iii.

Third, Employee argued that the District Court should grant relief because

the judgment was based on manifest errors of law or facts. We begin with Rule

59(e). The Court erred, Employee argued, by finding that she did not work

overtime during the arbitration in May of 2013. In making that finding, the Court

overlooked the hours she worked the Sunday before the arbitration. If the Court

had considered the hours Employee worked on Sunday, and if the Court had

12
Employee does not seriously argue otherwise. She argues only that Employer’s
“actions prevented [her] from exploring whether [Employer] deliberately spoliated evidence or
seeking sanctions.”
The is the exact argument the District Court rejected, and Employee does not explain
why the District Court’s rejection amounts to an abuse of discretion.
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applied “the most favorable workweek standard” to her,13 it would have concluded

that she worked overtime the week of Sunday, May 19, 2013, through Saturday,

May 25, 2013. This is a proper Rule 59(e) argument.

The District Court agreed that it erred by overlooking the hours that

Employee worked the Sunday before the arbitration. But it found that the error

was harmless because it concluded Employee’s workweek ran Monday through

Sunday, not Sunday through Saturday. The Court found that “[i]t is more

reasonable to conclude that the workweek started on Monday, given that the

Parties described [Employee’s] weekly work schedule as starting on Monday

mornings.”14 Thus, the hours that Employee worked the weekend before the

arbitration did not count toward the number of hours she worked the week of the

arbitration. Instead, those weekend hours counted toward the number of hours that

Employee worked the week before the arbitration. And because Employer testified

that Employee took more time off at the beginning of that week than she worked

on the weekend, the Court found that Employee did not work overtime the week

before the arbitration.

13
A “workweek is a fixed and regularly recurring period of . . . seven consecutive 24–
hour periods” that “need not coincide with the calendar week but may begin on any day and at
any hour of the day.” 29 C.F.R. § 778.105. Employee did not explain why the Court should
apply the workweek standard that was most favorable to her—Sunday to Saturday—instead of
the standard that was supported by the evidence.
14
The Court also noted that Employee did not cite any authority to support her argument
that the workweek started on Sunday rather than Monday.
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The District Court’s finding that Employee’s workweek ran Monday to

Sunday is a finding of fact that we review for clear error. See Renteria-Marin v.

Ag-Mart Produce, Inc., 537 F.3d 1321, 1324 (11th Cir. 2008) (“We review factual

findings made by a district court after a bench trial for clear error, which is a highly

deferential standard of review.”).

Under the Fair Labor Standards Act, overtime is calculated on a workweek

basis. See 29 U.S.C. § 207(a)(1); 29 C.F.R. § 778.103. “An employee’s

workweek is a fixed and regularly recurring period of . . . seven consecutive 24–

hour periods” that “need not coincide with the calendar week but may begin on any

day and at any hour of the day.” 29 C.F.R. § 778.105.

The District Court did not clearly err in finding that Employee’s workweek

ran Monday to Sunday. The parties presented little evidence at trial on this issue.

When asked whether he had a regularly recurring period of seven days that would

amount to a workweek, Employer said he was “not sure.” Employer said he paid

Employee twice a month, but he didn’t know exactly how to classify the

workweeks that made up the pay periods. Employee testified that her employment

began on a Monday. On balance, the record supports a finding that the workweek

began on Monday. Employee argues that it was “more reasonable” to find that the

workweek began on Sunday. But even if that were true, given the lack of

evidence, we would not be “left with the definite and firm conviction” that the

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District Court erred. See Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S. Ct.

1504, 1511 (1985) (explaining when a finding of fact is clearly erroneous) (quoting

United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 542 (1948)).

Thus, the District Court did not abuse its discretion by denying relief under

Rule 59(e) based on its finding that the workweek began on Monday.

Finally, the District Court was correct to deny relief under Rule 59(a),

because Employee did not make any Rule 59(a) arguments based on the Court’s

workweek finding of fact.

* * *

Employee makes one more argument related to the arbitration.15 The

arbitration lasted four days; each day had a three-hour morning session, a break for

lunch, and a three-hour afternoon session. In finding that Employee did not work

overtime during the week of the arbitration, the District Court found that the breaks

for lunch did not count toward overtime. The Court said that Employee’s

“contention that lunch each day was a ‘working lunch’ is unsupported” because

“[s]he d[id] not identify any work that was performed.”

15
It’s not a Rule 59 argument because Employee didn’t raise it in her Rule 59 motion.
But we’ve included it in the Rule 59 section because it fits naturally with our discussion of
whether the District Court erred in finding that Employee did not work overtime the week of the
arbitration.
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Employee argues that the District Court erred by excluding the lunches from

the overtime calculation because lunches during work count toward overtime

unless the employee is “completely relieved from duty for the purposes of eating

regular meals.” 29 C.F.R. § 785.19(a). And the “employee is not relieved if [s]he

is required to perform any duties, whether active or inactive, while eating.”16 Id.

Interpreting 29 C.F.R. § 785.19, we have said that “what matters in meal

period cases is whether the employees are subject to real limitations on their

personal freedom which inure to the benefit of their employer.” Avery v. City of

Talladega, 24 F.3d 1337, 1345 (11th Cir. 1994) (quoting Kohlheim v. Glynn

County, 915 F.2d 1473, 1477 n.19 (11th Cir. 1990)). So, unlike the District

Court’s Order suggests, Employee was not necessarily required to identify any

“work” that she performed during lunch. That said, the District Court’s finding of

fact—which we review for clear error, see Renteria-Marin, 537 F.3d at 1324—that

the lunches did not count is not clearly erroneous. Again, the parties presented

little evidence on this issue at trial. Employee never said whether she was required

to perform any duties during the lunch. Nor did she identify any limitations on her

freedom. See Avery, 24 F.3d at 1345. She said only that they stayed at the facility

through lunch, and they “talked about what [they] were doing.” She also said they

16
That said, the regulation also makes clear that “[b]ona fide meal periods are not
worktime.” 29 C.F.R. § 785.19(a).
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ate with the expert and talked about work “the entire time.” On this record, we’re

not definitely and firmly convinced that the District Court made a mistake. See

Anderson, 470 U.S. at 573, 105 S. Ct. at 1511.

B.

In addition to Rule 59, Employee moved for relief under Rule 60(b)(3). 17

We again begin with the legal standards and then take up Employee’s argument.

1.

Under Rule 60(b)(3), a district court may “relieve a party . . . from a final

judgment” due to “fraud . . . , misrepresentation, or misconduct by an opposing

party.” Fed. R. Civ. P. 60(b)(3). To get relief under Rule 60(b)(3), “the moving

party must prove by clear and convincing evidence that the adverse party obtained

the verdict through fraud, misrepresentations, or other misconduct.” Waddell v.

Hendry Cty. Sheriff’s Office, 329 F.3d 1300, 1309 (11th Cir. 2003). “The moving

party must also demonstrate that the conduct prevented them from fully presenting

his case.” Id.

We review the District Court’s decision denying relief under Rule 60(b)(3)

for abuse of discretion. See id.

17
She also moved for relief under Rule 60(b)(2). The District Court denied relief, and
Employee does not challenge that decision on appeal.
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2.

Employee asked the District Court to grant relief under Rule 60(b)(3) based

on the newly discovered email—the same one we discussed above—that she said

showed Employer failed to disclose evidence that tended to show spoliation. The

District Court denied the request. It found that Employee had not shown the

alleged misconduct prevented her from fully presenting her case. 18

The Court noted that, even if Employee had gotten the email during

discovery, her litigation strategy would have been “fundamentally similar” to the

strategy she adopted without the email. Had Employee known about the email, she

might have asked Employer about it is his deposition. And she might have asked

to inspect his computer system. She probably would have used the email to

impeach Employer at trial. But Employee did question Employer about deleted

emails, the Court noted, and she argued that the deleted emails would have helped

prove that she worked overtime.

The District Court’s finding of fact—that the alleged misconduct did not

prevent Employee from fully presenting her case—is not clearly erroneous. See

Renteria-Marin, 537 F.3d at 1324 (reviewing finding of fact for clear error).

Employee argues that the District Court should have held an evidentiary hearing

18
The District Court also found that Employee failed to show by clear and convincing
evidence that Employer engaged in fraud or misconduct.
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before ruling on the motion. But the Court’s finding of fact is not clearly

erroneous simply because it did not hold an evidentiary hearing, especially in light

of the reasons the Court gave.

Thus, the District Court did not abuse its discretion by denying relief under

Rule 60 based on the newly discovered email.

C.

Employee argues that the District Court misapplied the burden-shifting

framework set out in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 686–88,

66 S. Ct. 1187, 1192 (1946), superseded on other grounds by statute, 29 U.S.C.

§ 254(a), as recognized in Integrity Staffing Solutions, Inc. v. Busk, 135 S. Ct. 513,

516–17 (2014). An employer covered by the Fair Labor Standards Act must keep

records that show how many hours an employee worked in a workweek. See 29

C.F.R. § 516.2(a)(7). When an employer fails to keep accurate and adequate

records, Anderson says that “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 sufficient evidence to show the amount and extent of that work as a

matter of just and reasonable inference.” 328 U.S. at 687, 66 S. Ct. at 1192

(emphasis added).

“The burden then shifts to the employer to come forward with evidence of

the precise amount of work performed or with evidence to negative the

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reasonableness of the inference to be drawn from the employee’s evidence.” Id. at

687–88, 66 S. Ct. at 1192.

Employer admitted that he did not keep records. Rather than apply

Anderson’s burden-shifting framework—indeed, the District Court never cited

Anderson—Employee says the Court penalized her for Employer’s failure to keep

records. In turn, Employee argues, this error infected the Court’s findings of fact.

We disagree. The District Court found that Employer’s testimony was more

credible than Employee’s “because it better matche[d] the other evidence in the

case, particularly the testimony of other employees.” At the end of the trial, it was

Employee’s word against the word of four others—Employer, the bookkeeper,

Employee’s successor, and Employer’s current paralegal. So, the District Court

did not reject Employee’s narrative because it misapplied Anderson’s standard,

which is triggered only “if [the employee] proves that he has in fact performed

work for which he was improperly compensated.” Anderson, 328 U.S. at 687, 66

S. Ct. at 1192.

D.

Finally, Employee argues that the District Court abused it discretion when it

failed to sua sponte recuse. We set out the legal standard and then turn to

Employee’s argument.

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1.

Any district judge “shall disqualify himself in any proceeding in which his

impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). This is an

“affirmative, self-enforcing obligation.” United States v. Kelly, 888 F.2d 732, 744

(11th Cir. 1989). “The standard . . . is ‘whether an objective, disinterested, lay

observer fully informed of the facts underlying the grounds on which recusal was

sought would entertain a significant doubt about the judge’s impartiality.’” Id. at

744–45 (quoting United States v. Torkington, 874 F.2d 1441, 1446 (11th Cir.

1989)).

Typically, “we review a judge’s decision not to recuse him or herself for an

abuse of discretion.” United States v. Berger, 375 F.3d 1223, 1227 (11th Cir.

2004). But “because [Employee] failed to seek recusal of the district judge in the

proceedings below, we review [her] recusal request for plain error.” Id. This is a

civil case, so we apply the “civil plain error rule.” See In re Lett, 632 F.3d 1216,

1220 n.7, 1227 (11th Cir. 2011). Applying that rule here, we will review the issue

only if Employee shows that a “miscarriage of justice will result from [our] refusal

to” do so. See id. at 1220 n.7.

2.

Employee argues that the District Judge should have recused because

Employer represented the District Judge’s ex-wife during the couple’s contested

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divorce proceedings in 1990 and 1991.19 As part of those proceedings, Employee

says, Employer deposed the District Judge twice. Based on this, Employee argues

that an objective, disinterested lay person would have significant doubt about the

District Judge’s impartiality.

We disagree. Employer represented the District Judge’s ex-wife roughly 26

years before this bench trial. We do not think an objective, disinterested lay person

would question the District Judge’s partiality based on something so remote. And

even if an objective, disinterested lay person would question the District Judge’s

partiality, that person would expect the bias to benefit Employee. Finally, there is

nothing in this Court’s § 455(a) precedent that would have alerted the Judge that he

should recuse. There will be no miscarriage of justice if we refuse to review this

issue because the District Judge’s failure to recuse is consistent with § 455(a). See

Roofing & Sheet Metal Servs., Inc. v. La Quinta Motor Inns, Inc., 689 F.2d 982,

990 (11th Cir. 1982) (“Any wrong result resting on the erroneous application of

legal principles is a miscarriage of justice in some degree.”). Thus, the civil plain

error rule bars our review.

III.

Our analysis is always driven by the standard of review. Here, Employee

was up against a deferential standard at every turn. This case shows that

19
The case is Moody v. Moody, No. 90-DR-014416 (Fla. Cir. Ct. filed June 29, 1990).
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overcoming a deferential standard is an uphill battle. The judgment of the District

Court is

AFFIRMED.

31