Eighth Circuit Holds Plaintiffs Must Provide Evidence of Actual Damages Even when Employer Doesn't Keep Accurate Time Records
By Matthew Hank
In Carmody v. Kansas City Board of Police Commissioners, the Eighth Circuit Court of Appeals addressed the standard of proof in a wage and hour case when an employer fails to maintain accurate timekeeping records. The court held that, even under the “relaxed standard” established by the U.S. Supreme Court in Anderson v. Mt. Clemens Pottery Co., plaintiffs in a wage and hour case must still provide evidence of actual damages.
Carmody involved a group of police officers who sued the Kansas City Board of Police Commissioners, claiming they were given flextime instead of overtime wages as required by the Fair Labor Standards Act (FLSA). Neither the officers nor the city tracked the accrued flextime. In response to discovery requests, the officers failed to provide information about the number of uncompensated hours they claimed to have worked or the amount of money they alleged was owed. Only after the close of discovery, and after the defendants moved for summary judgment, did the officers come forth with evidence of damages: the officers’ affidavits containing precise estimations, week by week, of unpaid hours worked.
The district court granted the defendants’ motion to strike the untimely affidavits, reasoning that the late production of the affidavits was prejudicial to the defendants because the city’s entire litigation posture might have been different if these numbers had been provided earlier. In addition, the court noted, allowing the officers to put forth untimely evidence of damages would prolong the litigation by forcing the district court to allow the defendants to re-open discovery and re-depose the officers, which would be unfair to the defendants, waste judicial resources, and fail to deter future violations of discovery obligations. The district court then granted summary judgment for the defendants because, without the affidavits, the court concluded that the officers could not satisfy their burden of proving the amount and extent of their alleged overtime work.
On appeal, the Eighth Circuit affirmed, finding that the district court did not abuse its discretion in striking the affidavits. Perhaps even more significantly, the Eighth Circuit delineated the standard of evidence required when the employer has not kept accurate time records. The court pointed out that the “relaxed” evidentiary standard under Mt. Clemens only applies when the existence of damages is certain. Thus, in this case, the plaintiffs had an initial burden of showing they carried flex hours forward into a new work week (in violation of the FLSA), or went entirely unpaid for those hours – a burden they did not satisfy. Although the officers provided evidence of the flextime practice, without the untimely affidavits there was no evidence of specific dates and hours worked, or money owed. “The city’s failure to provide accurate time records reduces the officers’ burden, but does not eliminate it,” the court stated. “Even though [Mt. Clemens] relaxes the burden of proof, the officers must still prove the existence of damages . . . . Without record evidence of a single hour worked over forty hours that did not receive overtime wages or flextime, the officers’ unsupported estimations of the unpaid hours due are not enough.”
Carmody provides welcome clarity to the often misconstrued “relaxed” evidentiary standard to be applied when, as in flextime or misclassification cases, employers have not maintained records of hours worked by employees they believed, in good faith, were not entitled to overtime wages.
Photo credit: Matthew John Hollinshead