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Simmons v. Boys & Girls Club of Pikes Peak Region

United States District Court, D. Colorado

October 13, 2017

BOYS & GIRLS CLUB OF THE PIKES PEAK REGION, a Colorado corporation, and JAMES M. SULLIVAN III, an individual, Defendants.



         This matter is before the Court on plaintiff Elizabeth Simmons' motion for partial summary judgment, ECF No. 21, and defendants Boys & Girls Club's and James M. Sullivan's motion for summary judgment, ECF No. 27. For the reasons below, the Court denies plaintiff's motion and grants in part and denies in part defendants' motion. Additionally, as explained below, plaintiff's motion for leave to amend to add a claim for exemplary damages, ECF No. 22, is mooted by this order.


         In August 2014 the Boys & Girls Club of the Pikes Peak Region (“Boys & Girls Club”) hired Elizabeth Simmons as a Teen Coordinator at its E.A. Tutt facility. ECF No. 27 at 2. The position was originally classified as exempt from the Fair Labor Standards Act's (“FLSA”) overtime requirements, so Ms. Simmons did not receive overtime pay. Id. However, Boys & Girls Club later reclassified the position as non-exempt and paid Ms. Simmons $947.76, which it believes more than compensated for her prior overtime hours. Id.

         In April 2015 Ms. Simmons became the Branch Director of the E.A. Tutt Club. Id. at 3. This role was also classified as exempt from the FLSA's overtime requirements, though Ms. Simmons disputes this exemption. ECF No. 27 at 4; ECF No. 28 at 3-4.

         Boys & Girls Club receives funding through Boys & Girls Club of America that originates from the Office of Justice Programs (“OJP”), a federal agency. ECF No. 27 at 4; ECF No. 28 at 5. These funds are referred to as OJP grants. ECF No. 27 at 4. In May 2015 Mr. Sullivan-Boys & Girls Club's CEO-accepted an OJP grant for $7, 500 on behalf of Boys & Girls Club for amounts expended or obligated from January to December 2015. ECF No. 27 at 5. The terms of this OJP grant, which were outlined in a “letter of agreement, ” required Boys & Girls Club to mentor at least eight youths with connections to the military. ECF No. 28-12 at 1. The grant also required that at least one Boys & Girls Club staff person participate in specific trainings. Id. at 2.

         In August 2015 Ms. Simmons met with Boys & Girls Club's Director of Operations, Sherrel Bethel, to review this OJP grant's requirements. ECF No. 27 at 6. Ms. Bethel indicated that Boys & Girls Club staff should mentor youth in the Club two days per week and keep written logs of their meetings and progress. ECF No. 27-6 at 126:4-24. Ms. Bethel mistakenly informed Ms. Simmons that Boys & Girls Club would need to return the grant money if it did not mentor the requisite number of military youth. ECF No. 27-8 at ¶ 7.

         Ms. Bethel also informed Ms. Simmons that she was required to complete an online training by December 2015. ECF No. 27-6 at 127:10-18. In September 2015 Ms. Simmons reported to Ms. Bethel that she had not yet conducted the training. ECF No. 27 at 6-7. When Ms. Simmons reported to Ms. Bethel that she still had not completed the training at the end of December 2015, Ms. Bethel instructed her not to complete the training. Id. at 7. Ms. Simmons contends that she did not understand its importance. ECF No. 28 at 5.

         As noted, Ms. Simmons was required to fill out reports related to the OJP grants. ECF No. 27 at 5; ECF No. 28 at 5. In December 2015 Ms. Bethel instructed Ms. Simmons to “backdate” information on a grant report, meaning that she should write about mentoring sessions-that Ms. Simmons alleges did not occur-for youths dating back to August 2015. ECF No. 27 at 7; ECF No. 28 at 6. Ms. Bethel informed Ms. Simmons that Mr. Sullivan had instructed her that Boys & Girls club would not pay the grant money back, so they would need to backdate the forms. ECF No. 27-6 at 137:23-138:9. During this conversation, Ms. Simmons raised concerns about backdating, noting her belief that doing so was a federal crime, and she told Ms. Bethel she would not backdate. Id. Ms. Simmons again refused to backdate in early March 2016 during a meeting with Ms. Bethel and three co-workers. Id. at 236:22-237:8. During Ms. Simmons' employment, Ms. Bethel avers that she did not tell Mr. Sullivan about Ms. Simmons' backdating concerns; Mr. Sullivan similarly avers that he did not know of her concerns during her employment. ECF No. 27-8 at ¶ 11; ECF No. 27-2 at ¶12.

         Mr. Sullivan learned about Ms. Simmons' failure to complete the OJP training on March 8, 2016. ECF No. 27 at 8. Boys & Girls Club of America sent him an email inquiring whether his staff had completed the required training, at which point Ms. Bethel informed Mr. Sullivan that Ms. Simmons had failed to do so. Id. At a meeting with Ms. Simmons on March 9, 2016, Mr. Sullivan decided to terminate her employment based on her failure to complete the training. Id. Mr. Sullivan contends that he also took into account her attitude and prior disciplinary record. ECF No. 27-2 at ¶11. This record included a report from October 2014 in which Ms. Simmons was alleged to have displayed unprofessional conduct during a training and a report from September 2015 in which she was alleged to have engaged in three unprofessional incidents. ECF No. 27-7 at 15-17. Plaintiff counters that Mr. Sullivan was only aware of her October 2014 disciplinary report. ECF No. 27 at 8; ECF No. 28 at 10.

         Ms. Simmons filed this lawsuit against Boys & Girls Club and Mr. Sullivan, alleging violations of the FLSA and the Colorado Minimum Wage Order, extreme and outrageous conduct, and wrongful discharge in violation of public policy and the False Claims Act. ECF No. 5. In my previous order on defendants' motion for judgment on the pleadings, I dismissed plaintiff's claim under the Colorado Minimum Wage Order and her FCA retaliation claim against Mr. Sullivan. ECF No. 30. Defendants now move for summary judgment on all claims, ECF No. 27, while plaintiff moves for summary judgment on part of one claim, ECF No. 21.


         The Court may grant summary judgment if “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). The moving party has the burden to show that there is an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The nonmoving party must “designate specific facts showing that there is a genuine issue for trial.” Id. at 324. A fact is material “if under the substantive law it is essential to the proper disposition of the claim.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998). A dispute about a material fact is genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court will examine the factual record and make reasonable inferences in the light most favorable to the party opposing summary judgment. Concrete Works of Colo., Inc. v. City & Cty. of Denver, 36 F.3d 1513, 1517 (10th Cir. 1994).


         Plaintiff seeks summary judgment on her FLSA claim for her employment as a Teen Coordinator, ECF No. 21, while defendants move for summary judgment on all claims and incorporate their response to plaintiff's motion for that claim, ECF No. 27. These motions will therefore be addressed together, and each of the claims will be addressed below.

         A. FLSA: Teen Coordinator.

         Plaintiff moves for summary judgment on her FLSA claim for $947.76 in unpaid overtime and liquidated damages due for her employment as a Teen Coordinator, as well as for reasonable attorneys' fees and costs. ECF No. 21 at 7. Defendant Boys & Girls Club also moves for summary judgment on this claim, arguing that it has satisfied any amounts allegedly owed to plaintiff as unpaid overtime and liquidated damages. ECF No. 27 at 9. As an aside, I question the parties' exercise of good judgment in devoting so much time and, presumably, expense to litigation about what at most is a $947.76 item.

         Plaintiff argues that it is undisputed that she was a non-exempt employee during her tenure as a Teen Coordinator, that her hours were reported correctly, and that she is entitled to liquidated damages. ECF No. 21 at 1-2. She accepts Boys & Girls Club's initial payment of $947.76 in overtime wages but demands an equal amount in liquidated damages. Id. at 7. She alleges that liquidated damages are justified here due to Boys & Girls Club's failure to allege a good faith belief in its previous misclassification of her role. Id.

         Defendants concede that Boys & Girls Club's initial overtime payment was based on the timekeeping records that plaintiff submitted. ECF No. 21 at 2. However, they now argue that her overtime hours and wages were improperly calculated, and that under the “fluctuating workweek method, ” she was only due $218.74 in unpaid overtime. Doubling that for liquidated damages, plaintiff would be owed only $437.48. Therefore, defendants suggest that Boys & Girls Club's payment of $947.76 in fact over compensated plaintiff for her overtime wages and liquidated damages. Id. Alternatively, defendants argue that even under Boys & Girls Club's previous method of calculating her hourly wage, plaintiff would still have been overcompensated once personal time off (PTO) and holiday payments that she was improperly paid (while misclassified as exempt) are accounted for.[1] Id. at 13-14.

         The Court determines that the method Boys & Girls Club initially used to calculate Ms. Simmons' overtime was a reasonable method to be used with respect to her Teen Coordinator position, and that even if it were not the correct method, Boys & Girls Club waived the use of alternative methods. The Court further finds that defendants have failed to come forward with any evidence of a good faith reason for their initial misclassification of plaintiff's role as Teen Coordinator. Therefore, Ms. Simmons is entitled to liquidated damages. The Court is unable to determine on the present record whether any adjustment should be made for PTO or holiday time, or if so, in what amounts, and to that extent only, plaintiff's motion for summary judgment on the Teen Coordinator issue is denied. Defendant's motion is denied as to this issue.

         B. FLSA: Branch Director.

         Next, defendants argue that plaintiff was properly characterized as exempt from the FLSA overtime requirements during her tenure as a Branch Director. Employers need not pay overtime if an employee is “‘employed in a bona fide executive, administrative, or professional capacity' as defined by the regulations promulgated by the Secretary of Labor.” Reyes v. Snowcap Creamery, Inc., No. 11-CV-02755-WJM-KMT, 2013 WL 4229835, at *2 (D. Colo. Aug. 14, 2013). Although employees bear the burden of proving that their employer violated the FLSA, an employer who asserts that an employee is exempt under the “executive exemption” “bears the burden of establishing that such category applies.” Id. ...

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