United States District Court, D. Colorado
RICHARD SMITH, individually and on behalf of all others similarly situated, Plaintiffs,
KEYPOINT GOVERNMENT SOLUTIONS, INC., a Delaware corporation, Defendant.
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
E. BLACKBURN UNITED STATES DISTRICT JUDGE.
matters before the court are (1) Defendant's Motion for
Summary Judgment [#77],  filed April 18, 2016; and (2)
Defendant's Motion To Strike Portions of Plaintiff's
Response to Defendant's Motion for Summary Judgment
[#88], filed May 26, 2016. I grant the motion for summary
judgment on the grounds stated herein and deny the motion to
strike as moot.
jurisdiction over this matter under 28 U.S.C. § 1331
(federal question) and 29 U.S.C. § 216(b) (Fair Labor
STANDARD OF REVIEW
judgment is proper when there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91
L.Ed.2d 265 (1986). A dispute is “genuine” if the
issue could be resolved in favor of either party.
Matsushita Electric Industrial Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89
L.Ed.2d 538 (1986); Farthing v. City of Shawnee, 39
F.3d 1131, 1135 (10th Cir. 1994). A fact is
“material” if it might reasonably affect the
outcome of the case. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91
L.Ed.2d 202 (1986); Farthing, 39 F.3d at 1134.
who does not have the burden of proof at trial must show the
absence of a genuine dispute. Concrete Works, Inc. v.
City & County of Denver, 36 F.3d 1513, 1517 (10th
Cir. 1994), cert. denied, 115 S.Ct. 1315 (1995). Once the
motion has been properly supported, the burden shifts to the
nonmovant to show, by tendering depositions, affidavits, and
other competent evidence, that summary judgment is not
proper. Id. at 1518. All the evidence must be viewed
in the light most favorable to the party opposing the motion.
Simms v. Oklahoma ex rel Department of Mental Health and
Substance Abuse Services, 165 F.3d 1321, 1326 (10th
Cir.), cert. denied, 120 S.Ct. 53 (1999).
an action for allegedly unpaid wages under the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. §§
201 - 219. Plaintiff claims his work for defendant prior to
June 2012 was classified improperly as that of an independent
contractor, and therefore he and other similarly situated
employees are entitled to unpaid overtime wages. See
Johnson v. Unified Government of Wyandotte County/Kansas
City, Kansas, 371 F.3d 723, 727 (10th Cir. 2004);
Baker v. Flint Engineering & Construction Co.,
137 F.3d 1436, 1440 (10th Cir. 1998). The parties devote the
bulk of their briefing to arguing the relative merits of this
question. Nevertheless, the court does not address those
substantive arguments, because even assuming arguendo that
plaintiff has asserted a valid claim under the FLSA, it
plainly is barred by limitations. Moreover, because this
action has never been certified as a collective action due to
plaintiff's inexcusable delay in filing a motion for
certification, the entire action must be dismissed.
undisputed that plaintiff became a full-time employee of
defendant in June or July 2012. His FLSA claims relate
therefore only to the period of time prior to that
transition. This lawsuit was filed in state district court on
January 29, 2015. Generally, claims under the FLSA are
subject to a two-year statute of limitations. 29 U.S.C.
§ 255(a). Under that standard, plaintiff's claims
patently are time-barred.
if plaintiff can establish defendant acted “willfully,
” the period of limitations increases to three years.
Id. See also Mumby v. Pure Energy Services
(USA), Inc., 636 F.3d 1266, 1270 (10th Cir. 2011). An
employer acts willfully for purposes of the FLSA if it
“either [knows] or show[s] reckless disregard for the
matter of whether its conduct violated the statute.”
McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133,
108 S.Ct. 1677, 1681, 100 L.Ed.2d 115 (1988); Mumby, 636 F.3d
at 1270. To demonstrate “reckless disregard, ”
plaintiff must adduce evidence of “action entailing an
unjustifiably high risk of harm that is either known or so
obvious that it should be known.” Safeco Insurance
Co. of America v. Burr, 551 U.S. 47, 68, 127 S.Ct. 2201,
2215, 167 L.Ed.2d 1045 (2007) (citation, internal quotation
marks, and footnote omitted).
these standards, it is not enough to suggest merely that
defendant was aware of the existence FLSA or of the
statute's application to its employees.
McLaughlin, 108 S.Ct. at 1681-82. Courts have found
willful violations when the evidence shows, inter alia,
(1) admissions that an employer knew its method of payment
violated the FLSA prior to the accrual of the action; (2)
continuation of a pay practice without further investigation
after being put on notice that the practice violated the
FLSA; (3) earlier violations of the FLSA that would put the
employer on actual notice of the Requirements of the FLSA;
(4) failure to keep accurate or complete records of
employment; and (5) prior internal investigations which
revealed similar violations
Nieddu v. Lifetime Fitness, Inc.,
977 F.Supp.2d 686,
689 n.1 (S.D. Tex. 2013) (quoting Bingham v. Jefferson
County, Texas, 2013 WL 1312563 at *14 & nn. 9-13
(E.D. Tex. March 1, 2013), adopted as modified on other
grounds, 2013 WL 1312014 (S.D. Tex. March 27, 2013)
(footnotes omitted)). See also Reich v. Monfort,
Inc.,144 F.3d 1329, 1334-35 (10th Cir. 1998) (prior
wage and hour investigation and audit disclosed same
violations as claimed by plaintiff); Ali v. Jerusalem
Restaurant, Inc., 2015 WL 1345326 at *2-3 (D. Colo.
March 23, 2015) (genuine dispute of material fact where
evidence showed defendant owner was asked directly about
overtime wages by at least two employees); Smith v. Pizza
Hut, Inc., 2011 WL 2791331 at *6 (D. Colo. ...