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Bailey v. Innovative Contracting Solutions, Inc.

United States District Court, N.D. Georgia, Atlanta Division

December 4, 2014



LEIGH MARTIN MAY, District Judge.

This is an action for unpaid overtime under the Fair Labor Standards Act (the "FLSA"). It is before the Court on the Defendants' Motion for Summary Judgment [Doc. 28] and the Defendants' Motion to Strike or Exclude the Declaration of Brian Williams [Doc. 35]. For the reasons stated below, the Defendants' Motion for Summary Judgment is GRANTED in part and DENIED in part. The Defendants' Motion to Strike or Exclude is DENIED.

I. Background

On July 11, 2011, Defendant Innovative Contracting Solutions, Inc. ("ICS") hired the Plaintiff, Christopher Bailey, as a project superintendent at a salary of $49, 000 per year.[1] Mr. Bailey remained in that position until July 12, 2012.[2] ICS is a commercial general contractor that renovates offices, medical facilities, industrial buildings, and restaurants throughout the southeast.[3] Defendant Matthew Hubbard is the President and sole shareholder of ICS.[4]

The parties dispute exactly what Mr. Bailey's duties as a project superintendent entailed. They agree that on a typical day, Mr. Bailey was the most senior ICS employee on the job site.[5] The Plaintiff contends, however, that usually he was the only ICS employee at a given job site.[6] The Defendants claim that Mr. Bailey was rarely supervised, but Mr. Bailey claims that he reported to or checked in with his supervisor on a regular basis.[7] The parties further dispute whether Mr. Bailey was responsible for hiring subcontractors. The Defendants claim that Mr. Bailey exercised "sole discretion" in selecting project labor, determining the amount of labor needed, assessing the skills of laborers, and recommending pay rates for laborers.[8] Mr. Bailey asserts that laborers were used only ten to fifteen percent of the time, but admits that on those occasions, he consulted with his supervisors to determine the amount of labor needed and then made recommendations regarding which people to hire.[9] Mr. Bailey denies that he ever set the pay rate for laborers.[10] He further denies that he had "sole discretion" in selecting laborers - he needed approval from his superiors.[11] Mr. Bailey admits that his recommendations for which laborers to hire were never rejected.[12] Additionally, when laborers were used, Mr. Bailey recorded and submitted their time to ICS management.[13]

In regard to supervision of subcontractors, Mr. Bailey admits that he was responsible for overlooking the work of the subcontractors on site, but asserts that he had little to no control over their actions.[14] Additionally, Mr. Bailey stated that the subcontractors already knew what their jobs were without any direction.[15] Mr. Bailey did not keep track of the subcontractors' time, but would report if subcontractors were absent, late, or left early.[16] About ninety percent of the time, subcontractors were scheduled by someone other than Mr. Bailey, but on occasion, he coordinated subcontractors' presence on job sites.[17]

Most significantly, the parties dispute the hierarchy of employees at ICS and the basic duties of project superintendents like Mr. Bailey. Mr. Bailey contends that as a project superintendent, he was supervised by project managers.[18] ICS, on the other hand, states that project superintendents and project managers worked together to ensure the successful completion of projects.[19] Mr. Bailey testified that he spent seventy-five to eighty percent of his day performing manual labor, which was the majority of his responsibility.[20] ICS stated that two-thirds of Mr. Bailey's work was non-manual labor, that any manual labor performed was limited to items after the completion of construction, and that temporary laborers performed manual labor.[21] It is not disputed that on occasion, Mr. Bailey would purchase supplies and pick up building permits.[22]

Mr. Bailey claims that ICS failed to pay him time-and-a-half pay for hours over forty per week. The Defendants now move for summary judgment, claiming that Mr. Hubbard does not qualify as an employer, that Mr. Bailey was an exempt employee, or at the very least, that some of Mr. Bailey's claims are barred by the statute of limitations.

II. Legal Standard

Summary judgment is appropriate only when the pleadings, depositions, and affidavits submitted by the parties show no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law.[23] The court should view the evidence and any inferences that may be drawn in the light most favorable to the nonmovant.[24] The party seeking summary judgment must first identify grounds to show the absence of a genuine issue of material fact.[25] The burden then shifts to the nonmovant, who must go beyond the pleadings and present affirmative evidence to show that a genuine issue of material fact does exist.[26] "A mere scintilla' of evidence supporting the opposing party's position will not suffice; there must be a sufficient showing that the jury could reasonably find for that party."[27]

III. Discussion

A. Motion to Strike or Exclude

In opposition to the Defendants' Motion for Summary Judgment, the Plaintiff offers the Declaration of Brian Williams. The Defendants move to strike or exclude that declaration. They claim that Mr. Williams was disclosed too late in the discovery process for his testimony to be considered.[28] Pursuant to the 2010 Amendments to the Federal Rules of Civil Procedure, motions to strike are not a preferred method for challenging the admissibility of evidence on summary judgment.[29] The Court will therefore consider the motion only as a motion to exclude.

Here, the Plaintiff became aware of a new witness late in discovery and disclosed that witness to the Defendants.[30] The Defendants claim prejudice because they were unable to depose that witness, Mr. Williams, within the discovery period.[31] The Plaintiff offered to consent to an extension of discovery to allow the Defendants to depose Mr. Williams.[32] The Defendants never responded to that offer.[33] Additionally, Mr. Williams is a former employee of the Defendants.[34] This Court refuses to exclude the declaration where the witness ...

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