United States District Court, D. Maryland, Southern Division
R. ALEXANDER ACOSTA, SECRETARY OF LABOR, U.S. DEPARTMENT OF LABOR, Plaintiff,
ROMERO LANDSCAPING, INC., et al., Defendants.
W. Grimm, United States District Judge.
Alexander Acosta, while still serving as Secretary of Labor
for the U.S. Department of Labor (the
“Department”) filed suit against Jose Romero and
Romero Landscaping, Inc. (individually “Mr.
Romero” and “Romero Landscaping”; together,
“Romero”), alleging that they violated various
provisions of the Fair Labor Standards Act, 29 U.S.C.
§§ 201-219 (“FLSA” or
“Act”), and seeking to recover back wages and
liquidated damages and to enjoin them from committing further
violations. Compl., ECF No. 1. Pending is the
Department's Motion for Summary Judgment, in which it
argues that the undisputed facts establish Romero's
liability for failing to pay overtime wages and failing to
keep sufficient and accurate records of their Employees'
hours and wages, as the FLSA requires. ECF No.
undisputed facts on the record before me demonstrate that
Romero violated the FLSA's recordkeeping and overtime
compensation provisions. See 29 U.S.C. §§
207(a)(1), (e), (h), 211(c); 29 C.F.R. § 516.2(a).
Therefore, summary judgment is granted in the
Department's favor as to liability for these violations.
While the undisputed facts establish that injunctive relief
is warranted and that Defendants must pay back wages and
liquidated damages for the overtime hours the Employees
worked without compensation, a genuine dispute exists on the
record before me as to the number of hours the Employees
worked. Accordingly, the Department's Motion is denied as
to the amount of damages, and I will schedule a bench trial
to resolve the dispute.
before the Court
closed on June 21, 2018, ECF Nos. 13, 14, and on October 5,
2018, the Department filed the pending Motion for Summary
Judgment. The Department based its Motion on Romero's
written discovery responses; declarations from eight of the
Employees, who asserted that they consistently worked well
over 40 hours each week without receiving time and a half
compensation for the overtime hours; the scant payroll
records that Romero produced in discovery, showing payments
by check for no more than 40 hours each week; Mr.
Romero's deposition; and Romero's apparent failure to
keep any other wage and hour records. See Pl.'s
Mem. 5-6; ECF Nos. 21-5 - 21-14, 21-7, 22.
response, Defendants filed their Opposition on December 10,
2018, along with affidavits from Romero and two employees,
ECF Nos. 25-2, 25-3, 25-5, and seventy-seven pages of
timesheets (the “Timesheets”), ECF No. 25-7, that
Mr. Romero claimed to have discovered on October 5, 2018 (the
date the Department filed its Motion) and passed to his
attorney on December 3, 2018, see Romero Aff.
¶¶ 9, 10, ECF No. 25-5. In its Reply, the
Department argues that the Timesheets, which Romero never
produced in discovery, should be excluded under Rule
37(c)(1).Pl.'s Reply 8-10. Romero did not seek
leave to file a surreply to address this argument.
See Docket. Defendants did, however, assert in their
Opposition that the delay was not intentional or a form of
foul play, insisting that they would have produced the
Timesheets sooner if they had located them sooner, as the
Timesheets would have provided a defense to the
Department's allegation that they kept inadequate
records. Defs.' Opp'n 15 n.12.
discovery, the Department requested “[a]ll documents
showing the hours worked, during the relevant time period, by
employees, including but not limited to payroll records,
employee lists, employee schedules, time cards and/or work
schedules.” Pl.'s First Req. for Prod. of Docs.,
No. 5, ECF No. 28-1. Defendants did not produce the
Timesheets, which they rely on now in support of their
arguments that they kept payroll records and paid the
Employees adequate wages for all hours worked.
a party fails to provide information . . ., the party is not
allowed to use that information . . . to supply evidence on a
motion, at a hearing, or at a trial, unless the failure was
substantially justified or is harmless.” Fed.R.Civ.P.
37(c). Though district courts have “broad
discretion” to decide whether a failure to disclose was
substantially justified or harmless, the Fourth Circuit has
held courts “should” consider five factors:
(1) the surprise to the party against whom the evidence would
be offered; (2) the ability of that party to cure the
surprise; (3) the extent to which allowing the evidence would
disrupt the trial; (4) the importance of the evidence; and
(5) the non-disclosing party's explanation for its
failure to disclose the evidence.
Sanchez Carrera v. EMD Sales, Inc., No. JKB-17-3066,
2019 WL 3946469, at *4 (D. Md. Aug. 21, 2019) (quoting S.
States Rack & Fixture, Inc. v. Sherwin-Williams Co.,
318 F.3d 592, 597 (4th Cir. 2003)). The party that fails to
disclose the evidence bears the burden of
“establish[ing] that nondisclosure was substantially
justified or harmless.” Id. (quoting
Wilkins v. Montgomery, 751 F.3d 214, 222 (4th Cir.
the first factor, Defendants' reliance on the Timesheets
clearly was surprising, in light of their failure to produce
them in response to the Department's March 29, 2018
request for production of documents; their admission that
they did not “maintain an account of hours worked for
the employees listed in Schedule A” or the
Employees' “overtime earnings” until after
the Department's investigation concluded; and their
interrogatory answer stating that they did not begin tracking
work hours until after the investigation concluded.
Defs.' Resp. to Req. for Admissions Nos. 12, 13, ECF No.
21-5; Defs.' Ans. to Interrog. No. 9, ECF No. 21-6. But,
as for the second factor, the Department could cure the
surprise before trial by seeking to reopen discovery, which
it has not done. Certainly, they can no longer cure the
surprise for purposes of the pending motion, because they did
not ask to stay resolution of the motion while they sought
additional discovery. There is not harm in this surprise,
however, as consideration of the Timesheets, which cover only
a part of the period at issue, does not affect the outcome of
the motion. As discussed further below, with or without the
Timesheets, no genuine dispute exists as to Defendants'
failure to keep adequate records or to pay the Employees
time-and-a-half for all of the overtime hours they worked.
And, with or without the Timesheets, a genuine dispute exists
regarding the amount of overtime wages Defendants now must
pay. Thus, this evidence's importance is minimal.
when a party “fail[s] to disclose . . . information
prior to the close of discovery and the filing of summary
judgment motions, ” as Romero did here, this failure
“argues strongly in favor of exclusion.”
Sanchez Carrera, 2019 WL 3946469, at *4. Yet when,
as here, the Court has not scheduled trial yet, the factor
concerning disruption of trial “only leans slightly in
favor of exclusion, ” even though reopening discovery
would prolong resolution of the case. Id. For
example, in MCI Communications Services, Inc. v. American
Infrastructure-MD, Inc., the Court concluded that this
factor was “split between the two parties”
because “the trial date ha[d] not been set, ” but
the disclosure “[came] in the midst of competing
cross-motions for partial summary judgment. No. GLR-11-3767,
2013 WL 4086401, at *9 (D. Md. Aug. 12, 2013).
provide very little explanation for the belated disclosure of
the Timesheets. But, what they do say is significant: They
note that producing the Timesheets was in Romero's best
interest when faced with allegations of inadequate record
keeping. See Pl.'s Opp'n 15 n.12. Thus, the
delayed production does not appear to have been willful.
Weighing these factors, it is clear that, despite the
surprise, it is curable and admission of the Timesheets is
harmless because the Department could seek additional
discovery and trial has not been scheduled and, more
significantly, the Timesheets do not impact the Court's
analysis of the Department's claims. Therefore, I will
not exclude the exhibit. See S. States Rack &
Fixture, 318 F.3d at 597; Sanchez Carrera, 2019
WL 3946469, at *4.
reviewing a motion for summary judgment, the Court considers
the facts in the light most favorable to the nonmovant,
drawing all justifiable inferences in that party's favor.
Ricci v. DeStefano, 557 U.S. 557, 585-86 (2009);
George & Co., LLC v. Imagination Entm't
Ltd., 575 F.3d 383, 391-92 (4th Cir. 2009). Summary
judgment is proper when the moving party demonstrates,
through “particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations . . .
admissions, interrogatory answers, or other materials,
” that “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), (c)(1)(A); see
Baldwin v. City of Greensboro, 714 F.3d 828, 833 (4th
Cir. 2013). If the party seeking summary judgment
demonstrates that there is no evidence to support the
nonmoving party's case, the burden shifts to the
nonmoving party to identify evidence that shows that a
genuine dispute exists as to material facts. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 585-87 & n.10 (1986). The existence of only a
“scintilla of evidence” is not enough to defeat a
motion for summary judgment. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 251-52 (1986). Instead, the
evidentiary materials submitted must show facts from which
the finder of fact reasonably could find for the party
opposing summary judgment. Id.
Landscaping, Inc. “is a residential landscaping
company”; Jose Romero owns 100% of the company.
Pl.'s Mem. 4; Defs.' Opp'n 6, ¶
It is undisputed that the company is subject to the
provisions of the Fair Labor Standards Act, 29 U.S.C.
§§ 201-219 (“FLSA” or
“Act”), and that the employees listed in Schedule
A of Plaintiff's Complaint (“Employees”) are
covered under the Act. Pl.'s Mem. 4, 9; Defs.'
Opp'n 6, ¶ 1. It also is undisputed that Mr. Romero
qualifies as an “employer” under the Act,
see Pl.'s Mem. 5, ¶ 5; Defs.' Opp'n
6, ¶ 1; Pl.'s Reply 2, and therefore he can be held
jointly and severally liable for his company's violations
of the Act. See 29 U.S.C. § 203(d).
Department investigated Romero's payroll practices from
March 7, 2014 to March 7, 2017. Defs.' Opp'n 2;
Pl.'s Reply 14. The parties agree that the earliest
damages the Department could recover, however, would be from
June 8, 2014, and only if the three-year statute of
limitations for willful violations applies. Defs.'
Opp'n 3; Pl.'s Reply 14. It is undisputed that,
during that period, the Employees were paid regular wages for
all hours worked, even when they worked overtime. Romero Aff
¶ 12; B. Batz Decl. ¶¶ 3-4, ECF No. 21-8; C.
Batz Decl. ¶¶ 4-5, ECF No. 21-9; V. Batz Decl.
¶¶ 3-4, ECF No. 21-13; Lopez Decl. ¶¶
3-4, ECF No. 21-10; Ramirez Decl. ¶¶ 3, 5, ECF No.
21-12; Rosales Decl. ¶¶ 4-5, ECF No. 21-14; L. Batz
Decl. ¶¶ 3-4, ECF No. 21-11.
paystubs for the period at issue reflect the payments of
regular wages for up to forty hours per week but no hours
worked or wages paid beyond those forty hours. Paystubs, ECF
Nos. 21-7, 25-8, 25-9. The Department submitted evidence that
the Employees regularly worked overtime, typically working
between fifty and sixty-five hours per week, but they were
not paid one and one-half times their wages for overtime
hours. B. Batz Decl. ¶¶ 4-6; C. Batz Decl.
¶¶ 5-7; V. Batz Decl. ¶¶ 4-6; Lopez Decl.
¶¶ 4, 6-7; Ramirez Decl. ¶¶ 5-7; Rosales
Decl. ¶¶ 4-7; L. Batz Decl. ¶¶ 4-5.
Defendants agree that the Employees worked overtime, but they
submitted evidence to show that it was not as frequent as the
Employees claim and that the Employees' extra
compensation for the overtime hours satisfies the FLSA
requirements. Romero Aff. ¶ 3, 5, 9, 11; E. Cruz Aff.
¶¶ 3, 5, ECF No. 25-2; W. Cruz Aff. ¶¶ 3,
5, ECF No. 25-3; Timesheets.
Department seeks summary judgment on its claim that
Romero's payroll records do not meet the requirements of
the FLSA, as well as its claim that Romero failed to pay the
Employees time-and-a-half for overtime hours worked.
Pl.'s Mem. 2-3.