United States District Court, D. Colorado
ORDER ON PENDING MOTIONS
BROOKE JACKSON, UNITED STATES DISTRICT JUDGE.
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.
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.
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.
& 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.
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.
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.
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.
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
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.
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).
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.
FLSA: Teen Coordinator.
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
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.
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. Id. at 13-14.
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.
FLSA: Branch Director.
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. ...