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Kelly Butler v. Homeservices Lending LLC

March 26, 2013

KELLY BUTLER,
PLAINTIFF,
v.
HOMESERVICES LENDING LLC, ET
DEFENDANTS.



The opinion of the court was delivered by: M. James Lorenz United States District Court Judge

ORDER: (1) DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT [DOC. 24], AND (2) DENYING DEFENDANTS' CROSS-MOTION FOR SUMMARY JUDGMENT [DOC. 30]

On June 7, 2011, Plaintiff Kelly Butler commenced this action to recover unpaid wages under both California and federal law against Defendants Homeservices Lending LLC ("HSL") and Doherty Employment Group Inc. ("Doherty"). Now pending before the Court are the parties' cross-motions for summary judgment.

The Court found these motions suitable for determination on the papers submitted and without oral argument. See Civ. L.R. 7.1(d.1). (Docs. 44--45.) For the following reasons, the DENIES Plaintiff's motion for summary judgment (Doc. 24), and DENIES Defendants' cross-motion for summary judgment (Doc. 30).

BACKGROUND*fn1

From January 2008 through August 2010, Defendants employed Plaintiff as a Home Mortgage Associate ("HMA"). (JSUF ¶ 61.) As an HMA, Plaintiff's responsibilities included processing loans for several Home Mortgage Consultants ("HMC") and generally assisting HMCs with the administration of their mortgage files. (Id. ¶ 70.) Danny Valentini was HSL's branch manager, and Michael Yip was the area administrator under Mr. Valentini. (Id. ¶¶ 63--64.) Mr. Valentini's region included approximately eight HMAs including Plaintiff. (Id. ¶ 64.) Throughout her employment at HSL, Plaintiff was in communication with Mr. Valentini and Mr. Yip via phone, email, and text message before and after work hours. (Id. ¶ 65.)

HSL maintained a written policy requiring pre-approval for overtime work, which included a policy to pay employees for all overtime hours worked and recorded, even if an employee should or could have obtained pre-approval but failed to do so. (JSUF ¶ 2--3.) The also stated that "[f]ull time employees are generally expected to work 8:00 a.m. to 5:00 p.m. unless agreed to otherwise by management," and "[l]unch breaks are scheduled for one hour and must be taken." (Id. ¶¶ 91, 97.) HSL used Doherty, an outside human-resources firm for all of its human resource needs, including employee time-keeping and payroll. (Id. ¶ 66.) HMAs, including Plaintiff, submitted their times directly to Doherty by completing time cards online via Doherty's website. (Id. ¶ 86.) HSL's employees were instructed in various handout materials to accurately enter all time they worked on the online DohertyHRDirect time-keeping system. (Id. ¶¶ 4--5.) Doherty expected that either Mr. Valentini or someone else would review time cards before they were submitted. (Id. ¶ 67.)

Plaintiff learned of HSL's overtime policy requiring pre-approval for overtime work a couple weeks after she started working at HSL. (JSUF ¶¶ 10--11.) She understood that HSL's written policy required her to mark down all hours she worked. (Id. ¶ 7.) Early on during her tenure at HSL, after Plaintiff inputted her "actual" work hours in the time-keeping system-including substantial overtime hours that she did not get pre-approved-she received an email from Mr. Yip. (Id. ¶¶ 12, 80--81.) That email explained that, in the future, Plaintiff should obtain pre-approval from Mr. Valentini before working any further overtime hours. (Id. ¶ 13.) However, Plaintiff never asked Mr. Valentini for permission to work overtime or for clarification of HSL's overtime policy. (Id. ¶ 14.) Rather, Plaintiff testified that she interpreted the email to mean that recording overtime was never permitted at HSL, and felt that requesting overtime might jeopardize her job. (Id. ¶¶ 15--17.) And like Plaintiff, Mr. Yip testified that he did not report all of his overtime hours because he thought it would "probably affect his career." ¶ 84.)

On one occasion, Plaintiff testified that she complained to HSL President Michael Reza that her workload was too large, and he immediately reduced her workload. (JSUF ¶ 19.) But she did not advise him of any off-the-clock work, which amounted to an average of 28 hours of overtime per week for approximately two and a half years. (Id. ¶¶ 18--19.) Even though Plaintiff could come and go as she pleased, she contends that the volume of work could not have been finished in an eight-hour work day. (Id. ¶¶ 32, 39, 46, 75.) Plaintiff acknowledges that she took an off-duty lunch period once per week. (Id. ¶ 31.) Nevertheless, Defendants paid Plaintiff for all time she inputted into the time-keeping system, including all overtime hours that she recorded. (Id. ¶ 8.)

After receiving the email, Plaintiff only reported working hours from 9:00 a.m. to 5:00 p.m. without a lunch, even though purportedly working an average of 28 hours of overtime per week. (JSUF ¶¶ 83, 95.) She worked about twelve hours per weekday, and about eight hours on Saturdays and Sundays as needed. (Id. ¶ 74.) Throughout her employment at HSL, Plaintiff sometimes contacted Mr. Valentini and Mr. Yip via email, telephone, or text message before 8:00 a.m. and after 5:00 p.m. (Id. ¶ 76.) Plaintiff spoke with Mr. Valentini only when issues arose that neither she nor her HMC could handle. (Id. ¶ 58.) Mr. Yip also testified that he was aware of work telephone conversations between Mr. Valentini and other HMAs after work hours. (Id. ¶ 79.) Mr. Valentini also testified that he would not know how many hours HMAs worked. (Id. ¶ 77.) He "never reviewed actual timecards that HMA's [sic] were required to fill out" and "no one at HSL reviewed timecards before they went to Doherty." (Id. ¶ 88.) Mr. Yip also did not review the HMAs' time cards. (Id. ¶¶ 90.) Additionally, though based in San Diego, Mr. Valentini "hardly ever" visited Plaintiff's office. (Id. ¶¶ 33, 45.) Mr. Reza was the HSL executive located in Plaintiff's office. (Id. ¶ 34.) But the extent of Plaintiff's in-person communications with Mr. Reza were limited to "waving, saying 'hi' or . . . if there was a problem, maybe once a week, but not on a frequent basis." (Id. ¶ 35.)

On August 13, 2010, Plaintiff voluntarily resigned her position with HSL. (JSUF ¶ 57.) On June 7, 2011, Plaintiff commenced this action in the Central District of California. In the complaint, she asserts six claims: (1) Violation of the Fair Labor Standards Act ("FLSA"),

29 U.S.C. § 201, et seq.; (2) Overtime and Minimum Wage Violations, California Labor Code §§ 510, 1182.11, 1194, and 1198; (3) Failure to Provide Itemized Wage Statements, California Labor Code § 226; (4) Failure to Provide and/or Authorize Meal and Rest Periods, California Labor Code § 512; (5) Failure to Timely Pay Wages, California Labor Code §§ 201--03; and (6) Violation of California Business and Professions Code § 17200, et seq. Shortly thereafter, this case was transferred to the Southern District of California, and eventually assigned to this Court.

Both parties now move for summary judgment. Plaintiff primarily moves for summary judgment on her claims for violation of the FLSA and overtime-and-minimum-wage violations (Doc. 24); and Defendants move for summary judgment on all claims asserted against them (Doc. 30). Both motions are opposed.

LEGAL STANDARD

Summary judgment is appropriate under Rule 56(c) where the moving party demonstrates the absence of a genuine issue of material fact and ...


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