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Smith v. Keypoint Government Solutions, Inc.

United States District Court, D. Colorado

December 16, 2016

RICHARD SMITH, individually and on behalf of all others similarly situated, Plaintiffs,
v.
KEYPOINT GOVERNMENT SOLUTIONS, INC., a Delaware corporation, Defendant.

          ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          ROBERT E. BLACKBURN UNITED STATES DISTRICT JUDGE.

         The matters before the court are (1) Defendant's Motion for Summary Judgment [#77], [1] 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.[2]

         I. JURISDICTION

         I have jurisdiction over this matter under 28 U.S.C. § 1331 (federal question) and 29 U.S.C. § 216(b) (Fair Labor Standards Act).

         II. STANDARD OF REVIEW

         Summary 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.

         A party 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).

         III. ANALYSIS

         This is 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.

         It is 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.

         However, 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).

         Given 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. ...


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