Allen v. Board of Public Educ. for Bibb County

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-12131 AUG 17, 2007
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 03-00258-CV-WDO-5

ALICIA ALLEN, BARBARA ANDREWS, MELISSA BRAXTON, PATRICIA
BROWN, SHIRLEY BROWN, CAROLYN FINNEY, NORARENE GILBERT,
VERONICA JACKSON, VERA LONG, JAMES MAYS, SYLVIA PETTIGREW,
EARLINE SCOTT, LAROSE SMITH, PATRICIA STEWART, ELEANOR
WELCH, ESSIE WILLIAMS, DOROTHY WOODFORD, et al., All individually
and on behalf of all other similarly situated individuals,

Plaintiffs-Appellants,
versus

THE BOARD OF PUBLIC EDUCATION FOR BIBB COUNTY,

Defendant-Appellee.

________________________

Appeal from the United States District Court
for the Middle District of Georgia
_________________________

(August 17, 2007)

Before BIRCH and PRYOR, Circuit Judges, and COVINGTON,* District Judge.

*
Honorable Virginia M. Hernandez Covington, United States District Judge for the
Middle District of Florida, sitting by designation.
COVINGTON, District Judge:

Plaintiffs brought this action against Defendant, the Board of Public

Education for Bibb County, to recover for violations of the Fair Labor Standards

Act. The district court granted summary judgment in favor of the Board, and this

appeal followed. For the reasons set forth below, we affirm the district court’s

decision in part and reverse in part.

I. BACKGROUND

Plaintiffs are Defendant’s employees or former employees. They are or

were bus drivers, bus monitors or aides, paraprofessionals, secretaries, and

custodians. Plaintiffs claimed that the Board failed to pay overtime wages and

failed to pay the appropriate “regular rate” of pay in violation of the Fair Labor

Standards Act. The bus drivers and monitors moved the district court for partial

summary judgment, claiming that the Board’s methodology for computing their

regular rate of pay, and for computing overtime in general, violated the FLSA.

The Board moved for summary judgment on all of Plaintiffs’ claims and argued

that its practices were in compliance with the FLSA.

The district court denied the motion for partial summary judgment filed by

the bus drivers and bus monitors and granted the Board’s motion for summary

judgment. All plaintiffs now appeal the district court’s grant of summary

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judgment and raise the following issues: (1) whether the district court erred in

granting the Board’s motion for summary judgment in connection with the claims

of the bus drivers and bus monitors, where the bus drivers and bus monitors

received different rates of pay depending on the type of route driven, and the

overtime rates reflect the differing rates of pay; and (2) whether the district court

erred in granting the Board’s motion for summary judgment in connection with the

claims of those Plaintiffs who assert that they have worked unpaid overtime hours.

II. STANDARD OF REVIEW

The grant of summary judgment is subject to de novo review and the circuit

court applies the same standard used by the district court. Elan Pharm. Research

Corp. v. Employers Ins. of Wausau, 144 F.3d 1372, 1375 (11th Cir. 1998).

III. ANALYSIS

As noted, this case involves two different groups of plaintiffs. The first

group, which consists of bus drivers and bus monitors, alleges that the Board

violated the FLSA by paying different rates for regular and other routes, and

calculating overtime through the use of a blended rate. The second group, which

consists of paraprofessionals, secretaries, custodians, bus drivers, and bus

monitors, asserts that they worked uncompensated overtime in violation of the

FLSA. Although both groups appeal from the district court’s ruling on the

3
Board’s motion for summary judgment, the two have distinct facts and legal issues

that are treated separately here.

A. Different Rates for Different Routes

The first issue we address is whether the district court erred in granting the

Board’s motion for summary judgment in connection with the claims of the bus

drivers and bus monitors. Plaintiffs argue that the Board violated the FLSA when

it paid a driver or bus monitor different rates of pay depending on the type of route

driven. On a regular route, the rate of pay is based largely on the employee’s years

of service to the school. On an additional route, the rate of pay is set— a $6 per

hour rate for field trips and a $7 per hour extended day rate that applies to

everything other than the regular route and field trips. In its brief, the Board

utilized the following example to explain its current pay policy of blending these

rates when calculating overtime:

Bus drivers and aides earn straight time at the rate of pay
applicable to the particular duty they are performing. For example, if
a driver drives a regular route for 25 hours in a week, and the driver’s
rate of pay for regular-route work is $11.00 an hour, he will earn
$275. If that driver also drives 15 hours of field trips during the same
week, he will earn an additional $90 (15 hours x $6/hour). If the
driver also cleans his bus for 1 hour, drives an after-school route
(taking students home following an after-school program) for 5 hours,
and attends a safety-meeting for 2 hours, he will earn an additional 8
hours of work at the extended day rate of $7 an hour for a total of
$56. Therefore, in this example, the driver has worked a total of 48

4
 hours in a week and earned a total of $421 straight time.

Because the driver in this hypothetical worked over 40 hours in
the week, he is also entitled to 8 hours of overtime (or an additional ½
time). The overtime rate of pay is based on the blended (or weighted)
rate of pay. The total straight-time compensation ($421) is divided by
the total hours worked (48) to determine the blended rate of pay at
which to pay the overtime. In this example, the blended rate is $8.77.
Because this driver has already been paid straight time (or 1 time) for
those 8 hours, he is entitled to ½ of the blended rate ($4.39) for a total
additional overtime compensation of $35.12.

The district court found that this policy of paying different rates for

different types of routes, and paying overtime based upon a blended rate, did not

violate the FLSA because the routes constituted different types of work. While we

disagree with the district court’s analysis, we nonetheless affirm its grant of

summary judgment for the Board on this issue because we believe that the Board’s

policy is in accordance with the FLSA.

When Congress enacted the Fair Labor Standards Act in 1938, its goal was

to provide minimum wage and maximum hour protections for workers. Moreau v.

Klevenhagen, 508 U.S. 22, 25 (1993). By establishing a floor for wages and a

ceiling for hours worked without overtime compensation, lawmakers attempted “to

compensate those who labored in excess of the statutory maximum number of

hours for the wear and tear of extra work and to spread employment through

inducing employers to shorten hours because of the pressure of extra cost.” Bay

5
Ridge Operating Co. v. Aaron, 334 U.S. 446, 460 (1948). To that end, § 6 of the

FLSA establishes that an employee must receive no less than the statutorily-set

minimum wage and § 7 mandates that an employee who works for more than forty

hours a week is entitled to overtime compensation equal to one and a half times

his regular rate of pay. 29 U.S.C. §§ 206, 207.

In the present case, Plaintiffs argue that the Board has violated the FLSA's

mandate that overtime be paid at one and a half times the regular rate.

Specifically, they assert that the Board’s policy of blending the rates for regular

and other routes, and calculating overtime based on the blended rate, does not

satisfy the FLSA. Plaintiffs cite to 29 U.S.C. § 207(g)1 and 29 C.F.R. § 778.115

for the proposition that the use of a blended rate is improper because different

rates of pay and the resulting blended overtime rate are only permitted if the

employee is engaged in two or more different types of work. We disagree.

We begin by noting that Plaintiffs’ argument is predicated on their

assumption that the rate paid by the Board for regular routes is their regular rate.

Under the FLSA, the regular rate is derived from “all remuneration for

1
Plaintiffs inadvertently cited 29 U.S.C. § 207(a), but clearly refer to the language in §
207(g) that “in the case of an employee performing two or more kinds of work for which
different hourly or piece rates have been established, [his or her rate] is computed at rates not less
than one and one-half times such bona fide rates applicable to the same work when performed
during non-overtime hours.”

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employment paid to, or on behalf of, the employees.” 29 U.S.C. § 207(e). For this

reason, the rate of pay Plaintiffs receive for regular routes is only the regular rate

when Plaintiffs do not drive any of the other types of routes or receive any other

rate of pay. When a driver drives a combination of regular and other routes, and

receives two different rates of pay, then the combined pay for those rates must be

used in calculating all remuneration for employment. The total remuneration for

employment is then divided by the total number of hours actually worked in that

workweek. See 29 C.F.R. § 778.209; Overnight Transp. Co. v. Missel, 316 U.S.

572, 580 n.16 (1942) (“[w]age divided by hours equals regular rate”). The number

resulting from this equation is the employee’s regular rate, and “the result . . . is

unaffected by any designation of a contrary ‘regular rate’ in the wage contracts,”

Walling v. Youngerman-Reynolds Hardwood Co., 325 U.S. 419, 424 (1945).

Section 7(g)(2) of the FLSA states that an employer does not violate the

requirement that overtime payment be time and a half of the employee’s regular

rate, if:

the amount paid to the employee for the number of hours worked by
him in such workweek in excess of the maximum workweek
applicable to such employee under such subsection in the case of an
employee performing two or more kinds of work for which different
hourly or piece rates have been established, is computed at rates not
less than one and one-half times such bona fide rates applicable to the
same work when performed during non-overtime hours.

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29 U.S.C. § 207(g)(2). Section 7(g)(2), therefore, alerts employers to an

acceptable alternative method of calculating overtime for employees who are paid

at more than one rate. The Board did not utilize the method described in this

section, and we do not believe that the language contained therein should be

construed as a requirement that different types of work be performed if different

rates are paid. Section 7 regulates hours. It was not created as a way to regulate

an employee’s compensation, nor was its purpose “to prescribe that an hourly

wage be set at any particular level; it is its purpose to require that an hourly wage

be set at some level and that it be scrupulously adhered to, with augmented

payments for overtime work.” Nunn’s Battery & Elec. Co. v. Goldberg, 298 F.2d

516, 520 (5th Cir. 1962). Indeed, the Supreme Court has said that “[a]s long as the

minimum hourly rates established by § 6 are respected, the employer and

employee are free to establish this regular rate at any point and in any manner they

see fit.” Walling, 325 U.S. at 424. Accordingly, § 7(g) does not require that

different types of work be performed in order for employers to lawfully pay

different rates.

Neither do the regulations mandate that different types of work be

performed if different rates are paid. Plaintiffs state that “it is well-settled” under

29 C.F.R. § 778.115 that “different rates of pay and the resulting blended overtime

8
rate is only permitted if the employee is engaged in ‘two or more different types of

work.’” (Br. of Appellants at 14.) The relevant portion of 29 C.F.R. § 778.115

states that:

[w]here an employee in a single workweek works at two or more
different types of work for which different nonovertime rates of pay
(of not less than the applicable minimum wage) have been
established, his regular rate for that week is the weighted average of
such rates. That is, his total earnings (except statutory exclusions) are
computed to include his compensation during the workweek from all
such rates, and are then divided by the total number of hours worked
at all jobs.

29 C.F.R. § 778.115. Plaintiffs argue that this section creates a requirement that,

in order for a blended rate to be used in calculating the regular rate, different types

of work must be performed. However, when viewed in the proper context, it is

apparent that section 778.115 contains no such mandate. Section 778.109 states

that:

[t]he regular hourly rate of pay for an employee is determined by
dividing his total remuneration for employment. . . in any workweek
by the total number of hours actually worked by him in that
workweek for which such compensation was paid. The following
sections give some examples of the proper method of determining the
regular rate of pay in particular instances . . .

29 C.F.R. § 778.109. Following section 778.109 is a list of different employment

arrangements and the proper method for complying with the FLSA for each type

of arrangement. That list includes section 778.115. Thus, reading section 778.115

9
in the context of section 778.109, it becomes apparent that the former is one of the

examples mentioned in the latter as a way that the regular rate may be calculated

in certain cases. While it exemplifies one way that a regular rate may be

determined, it does not mandate that differing rates of pay are only permitted when

different types of work are performed.

For the reasons stated above, we hold that the FLSA does not contain a

requirement that employees perform different types of work in order for employers

lawfully to pay them different rates, and we believe that the Board’s current policy

is in accordance with the FLSA. With respect to this issue, the district court’s

ruling is affirmed.

B. Uncompensated Overtime

The second issue we must address is whether the district court erred in

granting summary judgment in favor of the Board in connection with the claims of

those Plaintiffs who assert that they worked uncompensated overtime hours.

According to Federal Rule of Civil Procedure 56, the district court should

grant summary judgment only upon a showing that there is no genuine issue as to

any material fact. The moving party bears the burden of proof, and the district

court should “view all evidence and make all reasonable inferences in favor of the

party opposing summary judgment.” Whatley v. CNA Ins. Cos., 189 F.3d 1310,

10
1313 (11th Cir. 1999); Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986).

Summary judgment is appropriate where “the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if

any, show that there is no genuine issue as to any material fact and that the moving

party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). Entry of

summary judgment is appropriate “after adequate time for discovery and upon

motion, against a party who fails to make a showing sufficient to establish the

existence of an element essential to that party’s case, and on which that party will

bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986).

The movant bears the responsibility for demonstrating the basis for the

summary judgment motion. Id. A factual dispute alone is not enough to defeat a

properly pled motion for summary judgment; only the existence of a genuine issue

of material fact will preclude grant of summary judgment. Anderson, 477 U.S. at

247-48 (1986). An issue is genuine if the evidence is such that a reasonable jury

could return a verdict for the nonmoving party. Mize v. Jefferson City Bd. of

Educ., 93 F.3d 739, 742 (11th Cir. 1996)(citing Hairston v. Gainesville Sun Publ’g

Co., 9 F.3d 913, 918 (11th Cir. 1993)). A fact is material if it may affect the

outcome of the suit under the governing law. Allen v. Tyson Foods, Inc., 121 F.3d

11
642, 646 (11th Cir. 1997). The moving party bears the initial burden of showing

the court, by reference to materials on file, that there are no genuine issues of

material fact that should be decided at trial. Hickson Corp. v. N. Crossarm Co.,

Inc., 357 F.3d 1256, 1260 (11th Cir. 2004)(citing Anderson, 477 U.S. at 248).

“When a moving party has discharged its burden, the non-moving party

must then ‘go beyond the pleadings,’ and by its own affidavits, or by ‘depositions,

answers to interrogatories, and admissions on file,’ designate specific facts

showing that there is a genuine issue for trial.” Jeffery v. Sarasota White Sox,

Inc., 64 F.3d 590, 593-94 (11th Cir. 1995) (citing Celotex, 477 U.S. at 324). If

there is a conflict between the parties’ allegations or evidence, the non-moving

party’s evidence is presumed to be true and all reasonable inferences must be

drawn in the non-moving party’s favor. Shotz v. City of Plantation, Fla., 344 F.3d

1161, 1164 (11th Cir. 2003).

In the present case, the district court held that summary judgment was

appropriate, and that no genuine issues of fact remained. Specifically, the district

court found that (1) when employees work overtime and record that time on their

time sheets, the Board pays the overtime compensation; (2) the Board expended a

significant amount of time and resources training the employees on how to

properly record and turn in their time sheets; (3) all of the Plaintiffs acknowledged

12
in their depositions that they were instructed on how to record their hours worked,

how to report a problem with their time cards or paychecks, and not to work

overtime unless it had previously been approved by a supervisor; (4) some of the

employees were allowed to take flex time, where if they worked more than forty

hours in a week, they could take a corresponding amount of time off in flex time

during that same pay period; (5) no employee was able to state with any clarity the

hours he or she allegedly worked overtime; (6) each Plaintiff’s testimony was “so

vague and contradictory that it is impossible to determine whether they have

claims against the Board”; (7) because of the nature of Plaintiffs’ work, their

supervisors could not monitor them all the time; and (8) there was “an absence of

anything to put the Board on notice that overtime was worked.”

Plaintiffs now urge us to reverse this ruling, arguing that the district court

erred in finding no remaining questions of fact regarding their entitlement to

compensation for unpaid overtime. Plaintiffs argue that they have set forth

sufficient evidence to demonstrate that they worked unpaid overtime, and are

permitted to approximate the number of hours they have worked. They also assert

that there is a genuine issue of material fact as to the Board’s actual or

constructive knowledge of their uncompensated overtime work.

Under the FLSA, an employer may not employ his employee for a

13
workweek longer than forty hours unless his employee receives overtime

compensation at a rate not less than one and a half times his regular rate. 29

U.S.C. § 207(a)(1). A person is employed if he or she is suffered or permitted to

work. 29 U.S.C. § 203(g). It is not relevant that the employer did not ask the

employee to do the work. The reason that the employee performed the work is

also not relevant. “[I]f the employer knows or has reason to believe that the

employee continues to work, the additional hours must be counted.” Reich v.

Dep’t of Conservation and Nat. Res., 28 F.3d 1076, 1082 (11th Cir. 1994) (citing

29 C.F.R. § 785.11).

In order to prevail on their claim in this case, Plaintiffs must prove that they

were suffered or permitted to work without compensation. 29 U.S.C. § 201 et seq.

Courts have interpreted this to mean that a FLSA plaintiff must demonstrate that

(1) he or she worked overtime without compensation and (2) the Board knew or

should have known of the overtime work. See Reich, 28 F.3d at 1081-82; see also

29 C.F.R. § 785.11 (interpreting the “suffer or permit to work” requirement to

mean that an employer violates the FLSA when it “knows or has reason to believe

that he is continuing to work and the time is working time.”). In granting

summary judgment for the Board, the district court noted that it believed Plaintiffs

could prove neither that they worked overtime without compensation, nor that

14
their supervisors knew or should have known of this overtime work. Examining

these issues in turn, we review the district court’s ruling de novo, applying the

same standard used by the district court.

1. Performance of Uncompensated Overtime Work

In granting the Board’s motion for summary judgment, the district court

stated that Plaintiffs had failed “to state with any clarity the hours they allegedly

worked overtime” and had provided testimony that was “so vague and

contradictory that it is impossible to determine whether they have claims against

the Board.” On appeal, Plaintiffs argue that the district court erred in finding that

their approximations did not provide a sufficient basis to survive summary

judgment. We agree with Plaintiffs.

To the extent that evidence conflicts at summary judgment, the district court

has an obligation to “view all evidence and make all reasonable inferences in favor

of the party opposing summary judgment.” Whatley, 189 F.3d at 1313; Anderson,

477 U.S. at 255. If a reasonable fact finder evaluating the evidence could draw

more than one inference from the facts, and if that inference introduces a genuine

issue of material fact, then the court should not grant summary judgment. Samples

ex rel. Samples v. City of Atlanta, 846 F.2d 1328, 1330 (11th Cir. 1988) (citing

Augusta Iron & Steel Works, Inc. v. Employers Ins. Of Wausau, 835 F.2d 855,

15
856 (11th Cir. 1988)). “Credibility determinations, the weighing of the evidence,

and the drawing of legitimate inferences from the facts are jury functions, not

those of a judge, whether he is ruling on a motion for summary judgment or for a

directed verdict. The evidence of the nonmovant is to be believed, and all

justifiable inferences are to be drawn in his favor.” See Anderson, 477 U.S. at

255.

Although a FLSA plaintiff bears the burden of proving that he or she

worked overtime without compensation,“[t]he remedial nature of this statute and

the great public policy which it embodies . . . militate against making that burden

an impossible hurdle for the employee.” Anderson v. Mt. Clemens Pottery Co.,

328 U.S. 680, 687 (1946). It is the employer’s duty to keep records of the

employee’s wages, hours, and other conditions and practices of employment. Id.

The employer is in a superior position to know and produce the most probative

facts concerning the nature and amount of work performed and “[e]mployees

seldom keep such records themselves.” Id.

In Anderson, the Court noted that if an employer has failed to keep proper

and accurate records and the employee cannot offer convincing substitutes,

[t]he solution . . . is not to penalize the employee by denying him any
recovery on the ground that he is unable to prove the precise extent of
uncompensated work. Such a result would place a premium on an

16
 employer’s failure to keep proper records in conformity with his
statutory duty; it would allow the employer to keep the benefits of an
employee’s labors without paying due compensation as contemplated
by the Fair Labor Standards Act.

Id.

Thus, in situations where the employer’s records cannot be trusted and the

employee lacks documentation, the Supreme Court held “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.” Id.

The burden then becomes the employer’s, and it must bring forth either evidence

of the precise amount of work performed or evidence to negate the reasonableness

of the inference to be drawn from the employee’s evidence. Id. at 687-88. “If the

employer fails to produce such evidence, the court may then award damages to the

employee, even though the result be only approximate.” Id. at 688.

Plaintiffs’ deposition testimony calls into question the Board’s records.

Some employees testified that they were told not to record their overtime hours

because the Board would not pay them overtime. Some recorded their overtime

hours, but were made to take back their accurate time sheets and resubmit new

time sheets that reflected their scheduled, not actual, hours. At least one plaintiff

17
said that time sheets were torn up if they reflected overtime work. Another said

that the individual in charge of time sheets would white out time worked on his

time sheets.

If true, these facts indicate that the Board’s records cannot be trusted.

According to Anderson, in this type of situation the employee carries its burden of

proving that he or she performed work without proper compensation if he or she

produces sufficient evidence to show the amount and extent of that work as a

matter of just and reasonable inference.

Plaintiffs made statements regarding the amount and extent of their

uncompensated work in declarations and in deposition testimony taken by the

Board. The Board argues that Plaintiffs’ declarations should be disregarded

because they are unnotarized, unsworn, and because they contradict Plaintiffs’

deposition testimony.

In Van T. Junkins & Assocs., Inc. v. U.S. Indus., Inc., 736 F.2d 656, 656

(11th Cir. 1984), this Court affirmed a district court’s finding that an affidavit that

contradicted testimony on deposition was a sham when the party merely

contradicted its earlier testimony without giving any valid explanation. There, we

said that “[w]hen a party has given clear answers to unambiguous questions which

negate the existence of any genuine issue of material fact, that party cannot

18
thereafter create such an issue with an affidavit that merely contradicts, without

explanation, previously given clear testimony.” Id. at 657.

This rule is applied “sparingly because of the harsh effect [it] may have on a

party’s case.” Rollins v. Tech South, 833 F.2d 1525, 1530 (11th Cir. 1987).

Furthermore,

to allow every failure of memory or variation in a witness’ testimony
to be disregarded as a sham would require far too much from lay
witnesses and would deprive the trier of fact of the traditional
opportunity to determine which point in time and with which words
the . . . affiant . . . was stating the truth.

Tippens v. Celotex Corp., 805 F2d 949, 953-54 (11th Cir. 1986). As such, “our

cases require the court to find some inherent inconsistency between an affidavit

and a deposition before disregarding the affidavit.” Id. at 954.

We do not believe that the sort of inherent inconsistency exists between the

deposition testimony and declarations that would require us to find Plaintiffs’

declarations a sham. The declarations were made before the deposition testimony,

and to the extent an individual plaintiff varied from the statements made in his or

her declaration about hours worked, it was to admit that he or she lacked certainty

about the number of hours worked, and on what days they had worked those

hours. This is the type of inconsistency that the Board should test through cross-

examination at trial and allow the jury to weigh in determining the credibility of

19
each plaintiff’s testimony in support of his or her claims.2

It is not insignificant that Plaintiffs’ inability to state the hours they worked

may be at least partly the fault of the Board; after all, several Plaintiffs have

testified that when they submitted time sheets to the Board that showed overtime

work, those time sheets were destroyed. Because the Board seems to bear at least

partial responsibility for the lack of documentation, we must reject its assertion

that Newton v. City of Henderson, 47 F.3d 746 (5th Cir. 1995), supports summary

judgment here. In Newton, the court found no violation of the FLSA because

Plaintiff failed to record his overtime work on his time sheets. Id. at 750. Yet,

unlike the plaintiff in Newton, several Plaintiffs in this case testified that they

were discouraged from accurately recording overtime work on their time sheets,

and were encouraged to falsify their own records by submitting time sheets that

reflected their scheduled, rather than actual, hours. It can be inferred that these

Plaintiffs would have reported their overtime if they had not been discouraged

from doing so.

Furthermore, it is possible that Plaintiffs’ burden at trial may ultimately be

2
We note that the district judge indicated that he considered each Plaintiffs’ declaration
individually and specifically stated that the entire record was taken into consideration. The court
noted that the declarations were “at least minimally sufficient to satisfy the requirements of the
statute because they were made ‘under the penalty of perjury.’” Although the district court
declined to strike the declarations and did not find them to be a sham, it found that they were not
sufficient to create a material issue of fact.

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met with evidence other than precise, written documentation. For example, while

Porter-Glover could not produce documents proving her overtime work, she

testified to certain “triggering factors,” such as occasional after-school ice cream

sales, dances, and occasions when parents were late to pick up their children that

helped her recall when she worked overtime. The ice cream sales occurred two to

four times a week and Ms. Wesley would witness Porter-Glover selling ice cream

because she would come in to buy ice cream from her. PTO meetings occurred

every six weeks beginning in 2000, and on the dates that PTO meetings were held

Porter-Glover would be at school “from the time school ended until after the PTO

meeting, which would be usually about 7:30 to 8:00.” Porter-Glover testified that

she only missed two PTO meetings, and that the school had a calendar of PTO

meetings, which Porter-Glover had created. Furthermore, the Board elicited from

Porter-Glover that numerous individuals, including the assistant principal, the

school secretary, numerous co-workers, and her husband would be able to support

her claim that she worked beyond her scheduled hours. We believe Anderson

demonstrates that Plaintiffs may ultimately be permitted to show the amount and

extent of their unpaid overtime as a matter of just and reasonable inference based

on facts such as these.

Thus, it is clear that the Board was not entitled to summary judgment based

21
on Plaintiffs’ lack of documentation and inability to state with precision the

number of uncompensated hours they worked and the days on which that work

was performed. We believe that Plaintiffs have produced “sufficient evidence to

show the amount and extent of that work as a matter of just and reasonable

inference.” See Anderson, 328 U.S. at 687. We also believe that there is no merit

in the Board’s contention that Plaintiffs cannot recover because any off-the-clock

work was of such short duration or sporadic that it was negligible. The evidence

presented in the declarations and deposition testimony in this case indicates that

the amounts in question are not negligible; therefore, Mitchell v. Adams, 129 F.

Supp. 377 (M.D. Ga. 1955), has no application here.

2. The Board’s Actual or Constructive Knowledge

The Board claims that even if unpaid hours can be shown, Plaintiffs cannot

demonstrate that their supervisors knew that they were working overtime without

pay. Plaintiffs’ claims were viable if a reasonable jury could conclude from the

evidence that the Board had actual or constructive knowledge.

a. Actual Knowledge

Two plaintiffs testified that they worked overtime and notified their

supervisors that they had not received pay. Angela Porter-Glover testified that her

supervisor, Ms. Wesley, who was the principal of the school, told her that she

22
could not continue to be paid overtime, and would need to take comp time. This

indicates that Ms. Wesley was aware that Porter-Glover was working overtime

hours. However, even though Ms. Wesley told Porter-Glover that she would need

to take comp time, when Porter-Glover earned and tried to use hours of comp time,

on at least one occasion Ms. Wesley could or did not allow Porter-Glover to take

comp time.3 Porter-Glover’s testimony raises a genuine issue of material fact as to

the Board’s actual knowledge, because Ms. Wesley was aware that Porter-Glover

had been told that she could not be paid overtime, and was aware that she had

earned hours that she could not be compensated for with comp time.4 See Reeves

3
Porter-Glover testified that this occurred on more than one occasion, but could not
recall more than one specific instance.
4
The Board responds to Plaintiffs’ testimony by stating that even if a supervisor saw an
employee working beyond his or her scheduled hours, that supervisor would not have assumed
that the employee was working without pay. Instead, the supervisor would have assumed that the
employee would be compensated under the Board’s flex time policy, which gave employees time
off in exchange for overtime hours worked.

To show that there was not a genuine issue as to the Board’s knowledge, the Board is
required to point to materials on file with the court that demonstrate the absence of a factual
dispute. Part of the Board’s argument is that the existence of a flex time policy allowed the
Board to assume that flex time was being taken to compensate for unscheduled hours worked.
The Board did not, however, reference any materials on file to support that assertion. For
example, other than the arguments contained in its briefs, the Board points to nothing in the
record that indicates that the Board assumed that Porter-Glover, or any Plaintiff in this case, was
compensated through the use of flex time.

To the extent that the Board claims that the flex time policy would permit the assumption
that an employee was compensated for working beyond his or her scheduled hours, there is
nothing on file, such as an affidavit from an employee’s supervisor, stating that the supervisor
assumed that the employee would receive flex time. Our skepticism is bolstered by the fact that

23
v. Int’l Tel. & Tel. Corp., 616 F.2d 1342, 1353 (5th Cir. 1980) (“Knowledge will

generally be imputed to the offending employer.”).

Clara Patterson claims that she also worked for Ms. Wesley. Patterson’s

deposition testimony revealed that Patterson attended a meeting in which Ms.

Wesley stated that she “could not approve” overtime; however, Ms. Wesley did

not say that employees should not work beyond their scheduled hours. Although

Patterson does not specifically recall Ms. Wesley telling her that she was required

to work without pay, she stated that it was her understanding that when Ms.

Wesley asked her to stay late, it would be without pay. Patterson recalls that she

worked “three or four” Saturdays to prepare paperwork for returning teachers, and

on “maybe all except one” of those Saturdays, Ms. Wesley was also at the school.

Patterson states that she told Ms. Wesley that she also brought work home with

her. Patterson’s testimony creates a genuine issue of material fact as to the

Board’s actual knowledge, because Patterson’s supervisor told her that she could

not be paid overtime, but observed her working beyond her scheduled hours. As a

Sharon Patterson’s August 17, 2001 Memorandum addressing flex and comp time stated that an
employee must receive prior approval from his or her supervisor before flex time could be
utilized. In other words, it was clear that flex time was not earned if it had not been approved
beforehand, which means that no supervisor could believe that an employee was receiving flex
time if it had not been approved in advance. Of course, the Board could argue that one employee
may have had more than one supervisor who could have approved flex time; however, an issue of
fact would still exist.

24
jury could reasonably conclude that Ms. Wesley knew that Patterson was working

without pay, summary judgment as to Patterson was improper.

In both cases, actual knowledge can be presumed and summary judgment

was not appropriate.

b. Constructive Knowledge

Other Plaintiffs testified in their depositions that although they could not be

sure that the Board had actual knowledge of their overtime work, circumstances

should have alerted the Board that they performed work beyond their scheduled

hours without pay. These circumstances, they argue, provided the Board with

constructive knowledge.

An employer is said to have constructive knowledge of its employee’s

overtime work when it has reason to believe that its employee is working beyond

his shift. 29 C.F.R. § 785.11. The employer’s knowledge “is measured in

accordance with his ‘duty . . . to inquire into the conditions prevailing in his

business.’” Gulf King Shrimp Co. v. Wirtz, 407 F.2d 508, 512 (5th Cir. 1969)

(quoting People ex rel. Price v. Sheffield Farms-Slawson-Decker Co., 121 N.E.

474 (N.Y. 1918)).

There is no violation of the FLSA where the employee performs

uncompensated work but deliberately prevents his or her employer from learning

25
of it. Forrester v. Foodliner, 646 F.2d 413, 414 (9th Cir. 1981). However, our

predecessor court stated that when an employer’s actions squelch truthful reports

of overtime worked, or where the employer encourages artificially low reporting,

it cannot disclaim knowledge. Brennan v. Gen. Motors Acceptance Corp., 482

F.2d 825, 828 (5th Cir. 1973).

At summary judgment, it was the Board’s burden to support the motion by

reference to materials on file that demonstrated the absence of any genuine issue

of material fact as to its knowledge. To that end, it referred the trial court to

portions of some of Plaintiffs’ depositions indicating that the Board lacked actual

or constructive knowledge. These deposition excerpts supported the Board’s

argument that some Plaintiffs had not informed their supervisors of their overtime

work, or had not told them that they had not recorded or been paid for hours that

the supervisor may have known they worked beyond their scheduled hours.

Plaintiffs responded with specific references to testimony that tended to create a

dispute of fact as to whether the Board knew or should have known that Plaintiffs

were working without pay. We believe that summary judgment as to some

Plaintiffs was inappropriate, but affirm the grant of summary judgment as to

others.

Several Plaintiffs testified that their supervisors were aware of their work

26
beyond their scheduled hours. An issue of fact exists as to the Board’s knowledge

that these Plaintiffs were performing work without compensation. Alicia Allen is

one such plaintiff who testified that her supervisors knew that she had worked

beyond her scheduled hours. She testified that Bob Donaldson, the transportation

department director, clocked her out when he knew she was still working. She

also testified that Bernard Kitchens, a route supervisor, knew she was working off

the clock.

Timothy Brown testified that he recorded certain hours on his time sheets

that Patti Allen removed from or changed on his time sheet. Brown stated that he

told Mr. Donaldson that Ms. Allen had altered his time sheets, and Mr. Donaldson

told him that he didn’t have time and “go back to Patty.”

Wilbert Jones testified that he worked without pay on several occasions,

such as when his lunch break was interrupted and when he worked late. He stated

that he told Ms. Spies, his principal, that he was working late.

Vera Long testified that she had to supervise children on her lunch break

and the secretary told her she needed to sign out regardless of whether she had to

work during lunch. She stated that her supervisors knew she was working at lunch

because they would be in the lunch room when she and the children were there.

Long also testified that she worked overtime when buses broke down or were late,

27
and when she needed to attend meetings.

Earline Scott testified that she worked hours she did not record on her time

sheet because her supervisor said he would “take care of it.” After performing the

overtime work, she asked her supervisor if she should record the hours on her time

sheet, and her supervisor, Mr. Carswell, said “no, I’ll take care of it” or “I’ll take

care of it.” Scott testified that she knew she never received more pay in her check.

John Finney testified in his deposition that Dr. Sims, his supervisor, told

him that he should record his scheduled time to finish work on his time sheet, even

if he had worked later. He said that when Dr. Sims said this to him, he had

worked an hour beyond his scheduled time. According to Finney, Dr. Sims

explained that Dennis Staton, the Director of Custodial Services, had told her that

if Finney took a long time to do his job, he should record on his time sheet the

time that he was scheduled to leave, not when he actually left. In his deposition,

Finney offered contradictory testimony indicating that he had been paid for his

overtime work, but he also claimed at several points not to understand the

questions he had answered. Finney’s declaration states that during his

employment with the Board, he regularly worked one extra hour beyond his

scheduled work time. Additionally, his declaration alleges that he was forced to

work off the clock for PTA meetings and had to work outside of his scheduled

28
hours.

Essie Williams testified that she washed and cleaned her bus without pay.

Her deposition testimony indicates that she alerted two transportation department

directors, Beverly Skipper and Bob Donaldson, to the fact that she was not being

paid for washing and cleaning her bus. Ms. Skipper informed Williams that she

would not be paid for the work because it was part of her job. Even though the

Board argues that Skipper’s last date of employment was August 11, 2000, and the

district changed its procedures for recording hours in July of 2000, Williams’s

testimony is sufficient to create a genuine issue of material fact as to whether

Williams performed uncompensated work with the knowledge of the Board.

The Board argues that these allegations are insufficient to create a genuine

issue of fact as to the Board’s knowledge. They state that even if the supervisors

were aware that Plaintiffs were working beyond their scheduled hours, the

supervisors did not know that Plaintiffs were not recording their time and would

not be paid. We believe that these arguments should be made to a jury. Plaintiffs

are or were hourly employees who worked set schedules. Testimony abounds that

Plaintiffs were told that the Board would not pay overtime. The Board

acknowledged that it recently paid out large sums of money to employees who had

29
not received pay that they were due.5 The Board’s claim that the supervisors

lacked knowledge of the uncompensated work is not sufficiently supported by

materials on file, such as deposition testimony or declarations executed by the

supervisors. Accordingly, we believe that the circumstances were such that, even

if these Plaintiffs did not inform their supervisors that they were not recording

their hours, a jury could still charge the Board with constructive knowledge.

Some Plaintiffs did not inform their supervisors of their overtime work, but

an issue of fact nonetheless remains as to whether the Board should be charged

with constructive knowledge as to them. Our cases indicate that an employer can

be charged with constructive knowledge even when an employee has not alleged a

supervisor’s direct knowledge. We have said that if an employer had an

opportunity to acquire knowledge of an employee’s work by using reasonable

diligence, then the employer can be charged with constructive knowledge. Reich,

28 F.3d at 1082 (citing People ex rel. Price, 121 N.E. at 476). An employer is not

excused merely because his business requires him to rely on subordinates and

personal supervision is not possible. Id. “The cases must be rare where prohibited

5
The Board provided this information in its brief, where it noted that “[i]n March 2001,
the School District paid 418 non-exempt employees a total of $376,735.28 in back wages
covering the time period from August 2, 1998 to July 30, 2000. This ‘pay out’ was under the
supervision of the Department of Labor and was conducted with the assistance of two accounting
firms in addition to the School District’s staff and legal counsel.”

30
work can be done . . . and knowledge or the consequences of knowledge be

avoided.” Id. (quoting People ex rel. Price, 121 N.E. at 476).

In Brennan v. General Motors, the Fifth Circuit found constructive

knowledge where the employer’s employees performed their work independently

and the employer relied on them to accurately report their hours because close

supervision was not possible. When employees underreported their hours, the

court found that although upper management encouraged truthful reporting,

immediate supervisors had pressured employees to understate their hours. The

court determined that the exercise of reasonable diligence would have made the

employer aware of this fact. Brennan, 482 F.2d at 827.

The following Plaintiffs presented evidence that created a genuine issue of

material fact as to whether the Board should have known of their uncompensated

work. Their claims should have survived summary judgment because, taking

Plaintiff’s facts as true, a jury could conclude that Plaintiffs’ truthful responses

were squelched. Knowledge cannot be avoided simply because certain

supervisory tasks were delegated to subordinates. Summary judgment as to these

plaintiffs was improper as the relevant inquiry is a highly factual one that only a

jury is equipped to undertake.

Katherine Laster testified that she worked overtime when she came to work

31
early and worked on her lunch break. In her deposition, she was never asked

whether her supervisor knew she was working overtime without pay, but in her

earlier declaration she states that her overtime work was performed with the

Board’s knowledge. Her deposition testimony reflects that when she arrived to

work early and signed in using her actual time, the secretary, Ms. Pullen, corrected

her and told her to sign in the time she was scheduled to arrive. Laster believed

that the secretary was the voice of the principal.

Sharon Walker testified that she worked beyond her scheduled hours when

she came in early or worked late in order to finish her work. She claims she was

given more work than time in which to complete it. She admits she did not tell her

supervisors that she worked late, nor that she was not recording her hours. Walker

testified that her supervisor knew that she was working beyond the time that she

recorded on her time sheet. When she recorded her actual hours worked, the

school secretary called her and told her that she needed to put her scheduled time

on her time sheet.

Eleanor Welch testified that she worked off the clock during lunch, took

work home, and worked late after school. She stated that although she never

informed the principal or assistant principal about her extra work off the clock,

when she worked at lunch it was because the teacher was absent and the principal

32
and assistant principal knew that she would be with the children all day without a

break.

Although summary judgment was improperly granted as to the Plaintiffs

discussed above, the district court did not err in granting summary judgment

against other Plaintiffs. For example, some Plaintiffs have stipulated that they

accurately reported all of their hours during the relevant time period. Their only

claim is that the Board improperly calculated their overtime when they were paid

at different rates for the same type of work. As we have held that the Board’s

methodology did not violate the FLSA, summary judgment was appropriate as to

those Plaintiffs. The Plaintiffs in this group are Melissa Braxton, Patricia Ann

Brown, Betty Davison, Melissa Deshazer, Corine Gilmore, Tamika Hutchings,

Dorothy Lester, Shandrika Matthews, Sylvia Pettigrew, Henry Poole, Bobby

Strange, Loretta Thomas, and Dorothy Woodford.6

Likewise, some Plaintiffs testified in their depositions that all of the hours

they worked were properly recorded on their time sheets. The Plaintiffs in this

group are Barbara Andrews, Shirley Brown, Carolyn Finney, Veronica Jackson,

and James Mays. Summary judgment was appropriate as to these Plaintiffs.

For the reasons stated in the Board’s brief, to which Plaintiffs stated no

6
At one point, it appears that Essie Williams was also part of this group.

33
disagreement, Patricia Stewart’s claims are barred by the statute of limitations

because she was not employed within the applicable time period. Accordingly,

summary judgment was appropriate as to her.

Other Plaintiffs presented insufficient facts tending to show that the Board

was aware of their overtime work. As to them, no genuine issue of material fact

existed and summary judgment was proper. The facts relating to these plaintiffs

are detailed below.

Alice Johnson testified that she worked unpaid hours when she stayed late,

but no one told her to work off the clock and she did not inform anyone of her

overtime work. She testified that she does not know how the Board should have

known that she was working without compensation. As to Johnson, it was not

error for the district court to grant summary judgment in favor of the Board, as

Johnson’s unsupported declaration constitutes a mere scintilla of evidence that the

Board had actual or constructive knowledge of her overtime work. See Gunning

v. Cooley, 281 U.S. 90, 94 (1930) (“A mere scintilla of evidence is not enough to

require the submission of an issue to the jury.”).

Norarene Gilbert is a bus driver who parked her bus at home at the end of

her work day. She estimates that on about ten occasions she cleaned her bus and

did not record her time. She testified that she never told anyone that she had not

34
recorded her time on her time sheets. In her declaration, she stated that there were

other occasions that required her to work off the clock and she stated that school

representatives and officials were aware of this work; however, she put forth no

testimony to support such claims. As to Gilbert, the mere scintilla of evidence

presented in her declaration is not sufficient to survive summary judgment. Id.

LaRose Smith testified that she did not perform any work off the clock and

she put all the hours that she worked on her time sheets. Nevertheless, she stated

in her deposition that there must have been time that did not end up on her time

sheet because she did not see a difference in her pay when she stayed late to speak

with her route supervisor. Smith’s testimony to this effect presents a mere scintilla

of evidence to support her claims and we cannot find error in the grant of summary

judgment as to her. Id.

C. Liquidated Damages

The FLSA provides that violations of the Act will trigger liability in the

amount of the employee’s unpaid overtime compensation “and in an additional

equal amount as liquidated damages.” 29 U.S.C. § 216(b). An exception exists

when the employer acted in good faith and had “reasonable grounds for believing

that he was not violating the Act.” 29 U.S.C. § 260.

The district court ruled that Plaintiffs had failed to prove any violation of

35
the FLSA and, as a result, had no entitlement to any type of damages. We have

determined that the district court’s grant of summary judgment in favor of the

Board was erroneous as to certain Plaintiffs, because we believe an issue of fact

exists with respect to their claims. Where issues of fact remain, we reverse the

district court’s ruling that those Plaintiffs have no entitlement to damages, and we

remand for further proceedings consistent with this opinion. Of course, where we

have affirmed the district court’s grant of summary judgment as to other Plaintiffs,

we also affirm its ruling that those Plaintiffs are not entitled to damages.

D. Statute of Limitations

Although the ordinary statute of limitations in cases brought under the

FLSA is two years, a cause of action arising out of a willful violation of the FLSA

may be commenced within three years after the cause of action accrued. 29 U.S.C

§ 255(a). A willful violation may be found when the employer “disregarded the

very ‘possibility’ that it was violating the statute.” Alvarez v. IBP, Inc., 339 F.3d

894, 908–09 (9th Cir. 2003) (citing Herman, 172 F.3d at 141). The three-year

statute of limitations may apply even when the employer did not knowingly violate

the FLSA; rather, it may apply when it simply disregarded the possibility that it

might be violating the FLSA. If an employer acts unreasonably but not recklessly

in determining its legal obligation under the FLSA, then its actions should not be

36
considered willful and the two-year statute of limitations should be applied.

Lockaby v. Top Source Oil Analysis, Inc., 998 F. Supp. 1469, 1471 (N.D. Ga.

1998)(citing McLaughlin, 486 U.S. at 135 n.13). The determination of willfulness

is “a mixed question of law and fact.” Id. at 908.

We have concluded that triable issues of fact remain as to some Plaintiffs’

claims that they worked overtime without compensation; as such, the district

court’s ruling that the two-year limitation applies is reversed and a determination

of which statute of limitations to apply must be reserved until it is determined

whether a violation of the FLSA occurred in this case.

IV. CONCLUSION

For the foregoing reasons, we hold that the district court’s ruling must be

affirmed in part and reversed in part.

AFFIRMED IN PART, REVERSED IN PART.

37