*

The Honorable Arthur J. Tarnow, United States District Judge for the Eastern District of

Michigan, sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 09a0273p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

TERESA O’BRIEN, et al. (No. 07-4553);

JESSICA DELLARUSSIANI, et al. (No. 08-

3184),

Plaintiffs-Appellants,

v.

ED DONNELLY ENTERPRISES, INC., and ED

DONNELLY,

Defendants-Appellees.

X

-

-

-

-

>

,

-

-

-

-

-

N

Nos. 07-4553; 08-3184

Appeal from the United States District Court

for the Southern District of Ohio at Columbus.

Nos. 04-00085; 07-00253—George C. Smith, District Judge.

Argued: December 2, 2008

Decided and Filed: August 5, 2009 

Before: MOORE and WHITE, Circuit Judges; TARNOW, District Judge.*

_________________

COUNSEL

ARGUED: Lisa A. Wafer, FERRON & ASSOCIATES, Columbus, Ohio, for

Appellants. Loriann E. Fuhrer, KEGLER, BROWN, HILL & RITTER, Columbus,

Ohio, for Appellees. ON BRIEF: Lisa A. Wafer, John W. Ferron, Jessica G. Fallon,

FERRON & ASSOCIATES, Columbus, Ohio, for Appellants. Loriann E. Fuhrer,

KEGLER, BROWN, HILL & RITTER, Columbus, Ohio, for Appellees. 

TARNOW, D. J., delivered the opinion of the court, in which MOORE, J.,

joined. WHITE, J. (p. 53), delivered a separate opinion concurring in part.

_________________

OPINION

_________________

ARTHUR J. TARNOW, District Judge. 

1
Nos. 07-4553; 08-3184 O’Brien, et al. v. Ed Donnelly

Enterprises, et al.

Page 2

I. Factual and Procedural Background ................................... 4

II. The Dellarussiani suit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

A. Considering the offer of judgment .............................. 6

B. Mootness of counts I and II in view of offer of judgment ............ 8

C. Reasonable attorneys’ fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

D. Liquidated damages under Ohio’s Prompt Pay Act . . . . . . . . . . . . . . . . 11

III. Motion to dismiss Dellarussiani plaintiffs from O’Brien appeal . . . . . . . . . . . 14

A. Mootness due to Dellarussiani judgment on counts I and II . . . . . . . . . 15

B. Defendants’ argument that mootness of the FLSA claim necessarily renders

any supplemental claims moot . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

C. Res judicata and the Dellarussiani plaintiffs’ Prompt Pay Act claim in

O’Brien . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

D. Res judicata and Dellarussiani plaintiffs’ common-law claims in O’Brien

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

IV. The O’Brien suit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

A. Decertification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

1. Standard of review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

2. The meaning of “similarly situated” . . . . . . . . . . . . . . . . . . . . . . 22

B. The lead plaintiffs in O’Brien . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

1. Spoliation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

2. O’Brien . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

a. Rogan deposition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

b. Deposition in the instant case . . . . . . . . . . . . . . . . . . . . . 32

c. Affidavit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

d. Summary Judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

3. Prater . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

a. Affidavit ¶¶ 6-9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

b. Affidavit ¶¶ 10-13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

c. Affidavit ¶¶ 15-16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

d. Affidavit ¶ 14; Exhibits 6 and 7 . . . . . . . . . . . . . . . . . . . 49

e. Summary judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

4. Burden of proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

V. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

These appeals involve two related cases in which former employees of two

McDonald's franchises allege that their employer refused to pay the employees the

wages that they were due, in violation of the Fair Labor Standards Act (“FLSA”), 29

U.S.C. § 216(b); the corresponding Ohio statute; and other Ohio law. For the reasons
Nos. 07-4553; 08-3184 O’Brien, et al. v. Ed Donnelly

Enterprises, et al.

Page 3

that follow, in the Dellarussiani appeal, we affirm the district court’s entry of judgment

pursuant to the defendants’ Fed. R. Civ. P. 68 offer of judgment, except that the issue of

attorney fees is remanded to the district court. Having achieved all the relief that they

could hope to get on their most important claims, the Dellarussiani plaintiffs no longer

have a stake in these claims in the O’Brien case. As for an Ohio Prompt Pay Act claim,

which plaintiffs lost in Dellarussiani on summary judgment, and as to common-law

claims pleaded in O’Brien but not in Dellarussiani, the appeal is not moot, though these

claims will be barred by res judicata. Therefore, defendants’ motion to dismiss the

Dellarussiani plaintiffs from the O’Brien appeal is granted in part, but denied in part as

to the Prompt Pay Act and common-law claims. Though we disagree with the standard

that the district court applied in deciding whether the O’Brien plaintiffs were “similarly

situated” under the FLSA, we affirm the decertification. We do so, because in view of

our dismissal of most of the Dellarussiani plaintiffs’ claims from the O’Brien appeal,

there is only one possible opt-in plaintiff who could join the lead plaintiffs in O’Brien.

But the district court correctly observed that this particular opt-in plaintiff failed to

allege that she suffered from any unlawful practices. She is clearly not similarly situated

to the lead plaintiffs. Nor are the Dellarussiani plaintiffs, who have only a few extant

supplemental claims, similarly situated to the lead plaintiffs, given that these claims will

inevitably be barred by res judicata. Therefore, we affirm the district court’s

decertification of the collective action. That leaves the claims of the lead O’Brien

plaintiffs. As to the lead plaintiffs, we reverse the district court’s grant of summary

judgment in defendants’ favor as to the lead plaintiffs’ “off the clock” claims and vacate

the grant of summary judgment as to the lead plaintiffs’ claim that their time-sheets were

improperly altered.
Nos. 07-4553; 08-3184 O’Brien, et al. v. Ed Donnelly

Enterprises, et al.

Page 4

1

Through the same counsel who represent the O’Brien and Dellarussiani plaintiffs, employees

at these same two McDonald’s restaurants had sued the former owner in October 2001. The employees

alleged that employee time records had been improperly edited in violation of the FLSA. See O’Brien

Resp. Br. at 2; O’Brien Reply Br. at 7.

I. Factual and Procedural Background

The defendants in this case are Ed Donnelly and the corporation that he and his

wife own, Ed Donnelly Enterprises, Inc. O’Brien J.A. 150. Defendants bought two

McDonald’s stores in Bellefontaine, Ohio in February 2002. O’Brien J.A. 155.

For varying lengths of time between 2002 and 2004, plaintiffs worked in at least

one of these two stores. They earned wages between $6.25 and $9.00 per hour. O’Brien

Appellants’ Br. at 7.

Plaintiffs allege that there were two main ways in which defendants and their

managers paid plaintiffs less than what they had earned. The first practice involved

requiring plaintiffs to work “off the clock,” that is, before they had punched into, or after

they had punched out of, the computerized system that tracked employees’ start, end,

and break times. 

The second manner in which plaintiffs claim they were cheated is this: plaintiffs

say that defendants electronically altered the times that had previously been entered by

the timekeeping system when an employee punched in or out of work. These edits,

according to plaintiffs, reduced the total number of hours recorded in the employees’

payroll reports to a number less than what the employees had actually worked.1

In O’Brien v. Ed Donnelly Enterprises, Inc., and Ed Donnelly, plaintiffs brought

the following claims: the first cause of action was for violations of the FLSA; the

second, for violations of Ohio’s corresponding wage-payment law, O.R.C. § 4111; the

third, for violations of Ohio’s Prompt Pay Act, O.R.C. § 4113.15(B); the fourth, for

fraud; the fifth, for breach of contract; and the sixth, for promissory estoppel.

The district court initially certified a class of plaintiffs under the FLSA. The

ultimate class of plaintiffs (two lead plaintiffs and eight opt-in plaintiffs) moved for
Nos. 07-4553; 08-3184 O’Brien, et al. v. Ed Donnelly

Enterprises, et al.

Page 5

sanctions against defendants for spoliation of evidence. This request was denied. After

discovery, the district court found that the opt-in plaintiffs were not similarly situated

and decertified the class, dismissing the eight opt-in plaintiffs without prejudice. All

plaintiffs but one appealed the decertification order, and this appeal is before this court.

Retaining the same counsel as used in the O’Brien action, six opt-in plaintiffs refiled

individual suits, which were consolidated as Dellarussiani v. Ed Donnelly Enterprises,

Inc., and Ed Donnelly. Stevie LeVan, another opt-in plaintiff, did not file an individual

action, but joins the O’Brien appeal.

The two lead plaintiffs in O’Brien proceeded individually in that case. After

striking several affidavits as inconsistent with prior deposition testimony, the district

court granted summary judgment in favor of the defendants against both plaintiffs. The

two O’Brien plaintiffs appealed this final judgment and several of the evidentiary

decisions made by the district court. This appeal is also before this court.

Each of the Dellarussiani plaintiffs filed a three-count complaint. Count I

claimed violations of the FLSA; count II claimed violations of the corresponding Ohio

statute; and count III alleged that defendants were required to pay liquidated damages

under Ohio law, separate from any FLSA damages. Defendants made an offer of

judgment pursuant to Fed. R. Civ. P. 68 with regard to counts I and II. Defendants

offered to pay $6,142.20 (the full amount of claimed damages for counts I and II) plus

reasonable attorney fees as determined by the district court. The offer allowed the

district court to decide count III on the merits. The Dellarussiani plaintiffs rejected the

offer; however, the district court found that defendants’ offer of judgment mooted counts

I and II. The district court entered judgment in favor of the Dellarussiani plaintiffs in

the amount of the offer on counts I and II.

The district court also determined reasonable attorney fees and costs to be

$6,024.94. In making this determination, the district court found that the bills submitted

by the Dellarussiani plaintiffs’ counsel included time spent both on the unsuccessful

O’Brien case and the successful Dellarussiani case. In addition, the bills did not
Nos. 07-4553; 08-3184 O’Brien, et al. v. Ed Donnelly

Enterprises, et al.

Page 6

properly explain what expenses were incurred in preparation solely for Dellarussiani.

The district court awarded attorney fees and costs only for the work it determined was

done solely for the Dellarussiani action, even though some of the evidence used in

Dellarussiani was gathered during the O’Brien action.

Regarding count III, the district court granted defendants’ motion for summary

judgment, finding that the wages in question were in dispute. According to the district

court, under Ohio Rev. Code § 4113.15(B), if wages are in dispute, an employer is not

liable for liquidated damages. The Dellarussiani plaintiffs appealed the district court’s

entry of judgment on counts I and II, the attorney-fees award, and the grant of summary

judgment on count III. Defendants filed a motion with this court to dismiss the

Dellarussiani plaintiffs from the O’Brien appeal, asserting that the Dellarussiani

plaintiffs’ claims in O’Brien were mooted by the district court’s entry of judgment in the

Dellarussiani plaintiffs’ favor.

II. The Dellarussiani suit

The six Dellarussiani plaintiffs contend that the district court erred (1) when it

considered defendants’ offer of judgment, (2) when it dismissed counts I and II of their

complaint for mootness in view of the offer of judgment, (3) when it refused to award

any attorneys’ fees that were incurred in O’Brien while prosecuting the Dellarussiani

plaintiffs’ claims, and (4) when it granted summary judgment in defendants’ favor on

count III. We affirm the district court’s disposition of these issues, except as to the

award of attorney fees.

A. Considering the offer of judgment

Plaintiffs maintain that the district court abused its discretion by even considering

the offer of judgment, because Fed. R. Civ. P. 68(b) states that “[e]vidence of an

unaccepted offer is not admissible except in a proceeding to determine costs.”

The district court considered the offer of judgment on defendants’ Rule 12(b)(1)

motion to dismiss for lack of subject-matter jurisdiction. Both the district court and the
Nos. 07-4553; 08-3184 O’Brien, et al. v. Ed Donnelly

Enterprises, et al.

Page 7

defendants explain that a district court can consider an offer of judgment to determine

whether a claim is moot, in order to ascertain whether there is a justiciable case or

controversy under Article III of the Constitution. In other words, an offer of judgment

cannot be used to support or challenge the merits of a claim and to thereby influence the

trier of fact. See Hopper v. Euclid Manor Nursing Home, 867 F.2d 291, 295 (6th Cir.

1989) (“The rule contemplates that whether jury or judge tries the case the

decisionmaker will be unaware of the extraneous fact that an offer of judgment has been

made. This ensures that the trier of fact will not be influenced in its evaluation of the

case by any knowledge of a rejected offer or the consequences thereof.”). But a Rule 68

offer can be used to show that the court lacks subject-matter jurisdiction. See Greisz v.

Household Bank (Ill.), N.A., 176 F.3d 1012, 1015 (7th Cir. 1999) (an offer of judgment

that encompasses the relief claimed “eliminates a legal dispute upon which federal

jurisdiction can be based,” because “[y]ou cannot persist in suing after you’ve won”);

cf. Drs. Hill & Thomas Co. v. U.S., 392 F.2d 204 (6th Cir. 1968) (government offered,

though not pursuant to Rule 68, to give more money to tax-refund claimant than was

claimed and district court correctly dismissed the claim as moot).

We agree with the Seventh Circuit's view that an offer of judgment that satisfies

a plaintiff's entire demand moots the case and reject the plaintiffs' contention that the

offer of judgment could not be considered. We also note that our decision does not

implicate Sandoz v. Cingular Wireless LLC, 553 F.3d 913, 922 (5th Cir. 2008). That

court held that a Rule 68 offer of judgment cannot moot a lead plaintiff’s FLSA claim

when the lead plaintiff timely moves for collective certification, because the motion

relates back to the lead plaintiff’s filing of the complaint. Of course, if the court

eventually denies the motion, then the lead plaintiff represents only herself, and her

claim is moot. Contrary to the Sandoz plaintiff, the Dellarussiani plaintiffs did not

purport to bring a collective action, so we are not concerned that the Dellarussiani

plaintiffs have been picked off by defendants to avoid the onslaught of a putative

collective action.
Nos. 07-4553; 08-3184 O’Brien, et al. v. Ed Donnelly

Enterprises, et al.

Page 8

We disagree, however, with the Seventh Circuit’s view that a plaintiff loses

outright when he refuses an offer of judgment that would satisfy his entire demand. See

Greisz, 176 F.3d at 1015 (barring recovery of any damages or attorney fees when the

plaintiff refused an offer of judgment for the full amount of damages plus reasonable

costs and attorney fees). Instead, we believe the better approach is to enter judgment in

favor of the plaintiffs in accordance with the defendants’ Rule 68 offer of judgment, as

the district court did in this case, following the lead of district courts in the Second

Circuit. See Greif v. Wilson, Elser, Moskowitz, Edelman & Dicker LLP, 258 F. Supp.

2d 157, 160-61 (E.D.N.Y. 2003); Ambalu v. Rosenblatt, 194 F.R.D. 451, 453 (E.D.N.Y.

2000).

B. Mootness of counts I and II in view of offer of judgment

Plaintiffs maintain that the district court erred in dismissing counts I and II for

mootness. In particular, plaintiffs argue that the defendants’ offer of judgment did not

include attorneys’ fees and costs.

True, the defendants’ offer did not offer a number certain for plaintiffs’

attorneys’ fees. But the defendants did offer to pay costs accrued and a reasonable

attorneys’ fee to be determined by the court. Dellarussiani J.A. 281. Plaintiffs do not

argue that they could have obtained anything more for their substantive claims in counts

I and II than what the defendants offered. The only issue is whether an offer of judgment

which offers to pay a reasonable attorneys’ fee as later determined by the court — but

which does not offer to pay whatever sum reported by opposing counsel — moots the

FLSA and corresponding Ohio claim in this case.

The district court noted that offers of judgment with language similar to

defendants’ offer have been deemed by other district courts sufficient to moot the claims

at issue. See Ambalu, 194 F.R.D. at 452; see also Greisz, 176 F.3d at 1014 (defendant

who offered judgment of “$1,200 plus reasonable costs and attorneys’ fees” in a Truth

in Lending Act case was “offering [plaintiff] more than her claim was worth to her in a

pecuniary sense”). Furthermore, the FLSA does not entitle a prevailing plaintiffs’
Nos. 07-4553; 08-3184 O’Brien, et al. v. Ed Donnelly

Enterprises, et al.

Page 9

counsel to get whatever fee counsel claims. Rather, under the statute, the “court . . . shall

. . . allow a reasonable attorney’s fee.” 29 U.S.C. § 216(b). Defendants’ offer to pay the

reasonable attorneys’ fee as determined by the court is consonant with the statutory

language which requires that the court “allow” the reasonable fee when it awards a

judgment to a FLSA plaintiff.

Plaintiffs also contend that the offer did not purport to satisfy plaintiffs’ claim for

liquidated damages under Ohio Revised Code § 4113.15(B). However, the offer was

only extended as to counts I and II. Dellarussiani J.A. 281. Count III, which entailed

plaintiffs’ claim to liquidated damages under Ohio law, proceeded to summary judgment.

See infra Part II.D.

Therefore, the district did not err when it dismissed counts I and II as moot in

view of the offer of judgment.

C. Reasonable attorneys’ fees

Plaintiffs’ counsel incurred fees of roughly $6,000 in this case and $150,000 in

O’Brien. Dellarussiani J.A. 42. The district court determined that the reasonable fee

to which plaintiffs’ counsel were entitled did not include the O’Brien fees. Dellarussiani

J.A. 47. We review under an abuse-of-discretion standard. Wells v. New Cherokee

Corp., 58 F.3d 233, 239 (6th Cir. 1995).

Plaintiffs contend that the Dellarussiani plaintiffs’ claims were prosecuted

primarily in O’Brien. But the district court and defendants reason that the statute

authorizes an award of fees only in “the action” where a plaintiff prevails. 29 U.S.C.

§ 216(b) (“The court in such action shall, in addition to any judgment awarded to the

plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant, and

costs of the action.”) (emphasis added); Dellarussiani J.A. 44. The plaintiffs did not

prevail in O’Brien, and therefore, say defendants, any fees incurred in O’Brien cannot

be awarded.
Nos. 07-4553; 08-3184 O’Brien, et al. v. Ed Donnelly

Enterprises, et al.

Page 10

Such a wooden reading of the statute is unnecessary, and at a different point in

the district court’s opinion, the court appears to acknowledge this. See Dellarussiani

J.A. 46 (district court expressing difficulty in determining “how much time was spent

on tasks in the O’Brien matter that were necessary, not redundant, and contributory to

the success of the six plaintiffs” on counts I and II of Dellarussiani). The reality is that

discovery concerning the Dellarussiani plaintiffs’ claims took place in O’Brien.

Expenses that plaintiffs’ counsel incurred while trying to obtain collective-action

certification in O’Brien should not be attributed to prosecution of the Dellarussiani

plaintiffs’ particular claims, unless these expenses benefitted the Dellarussiani plaintiffs’

individual claims. For instance, fees for depositions in O’Brien that uncovered the facts

surrounding the Dellarussiani plaintiffs’ claims, even if the depositions were conducted

as part of the O’Brien plaintiffs’ effort to obtain collective-action certification, should

not be rejected on the basis of the FLSA.

Consonant with our conclusion that the statute does not bar the district court from

awarding attorney fees incurred in the O’Brien suit for the Dellarussiani plaintiffs’

claims, the proper amount of attorney fees is an issue remanded to the district court. We

do so notwithstanding the inadequacy and perhaps even the impropriety in the billing

records that plaintiffs’ counsel had originally presented to the district court. The

plaintiffs can have one more opportunity to present records that reflect fees incurred in

pursuit of and which benefitted the Dellarussiani plaintiffs’ claims on which they

prevailed pursuant to the Rule 68 offers that included reasonable attorney fees.

Plaintiffs are advised, however, that Hensley v. Eckerhart, 461 U.S. 424, 435

(1983) does not entitle them to the entirety of their fees incurred in O’Brien. As we

explained in Imwalle v. Reliance Medical Products, Inc., 515 F.3d 531, 554–55 (6th Cir.

2008), Hensley held that a prevailing plaintiff’s lodestar amount — that is, the hours

expended multiplied by the hourly billing rate — cannot be reduced for lack of overall

success if some claims were successful and others were unsuccessful, when all of those

claims “are based on a common core of facts or are based on related legal theories.”

Imwalle, 515 F.3d at 554. Hensley does not mean that all of the fees in O’Brien can be
Nos. 07-4553; 08-3184 O’Brien, et al. v. Ed Donnelly

Enterprises, et al.

Page 11

2

Although the statute says that a claimant may be entitled to 6 % of the unpaid claim, plaintiffs

claimed roughly $12,000 in Ohio liquidated damages compared to the roughly $6,000 they sought in

counts I and II. See Dellarussiani Resp. Br. at 6. At oral argument, defendants’ counsel explained that

the $12,000 figure was tallied by adding $200 for each alleged violation. 

recouped, even if arguendo the claims of all of the O’Brien plaintiffs, including those

who splintered off to Dellarussiani, were based on a “common core of facts.”

Addressing some of defendants’ concerns, we note that, absent a specific

showing of benefit to the Dellarussiani plaintiffs, fees cannot be recovered for expenses

incurred for the claims of O’Brien plaintiffs who did not file suit in Dellarussiani, nor

for the claims of the lead plaintiffs in O’Brien who remained after the collective action

was decertified.

D. Liquidated damages under Ohio’s Prompt Pay Act

Count III of the Dellarussiani complaint sought liquidated damages available

under Ohio Revised Code § 4113.15(B), also known as the Prompt Pay Act or the

Prompt Payment Act, which states:

Where wages remain unpaid for thirty days beyond the regularly

scheduled payday or, in the case where no regularly scheduled payday is

applicable, for sixty days beyond the filing by the employee of a claim

or for sixty days beyond the date of the agreement, award, or other act

making wages payable and no contest[,] court order or dispute of any

wage claim including the assertion of a counterclaim exists accounting

for nonpayment, the employer, in addition, as liquidated damages, is

liable to the employee in an amount equal to six per cent of the amount

of the claim still unpaid and not in contest or disputed or two hundred

dollars, whichever is greater.

(Emphasis added).2

 The district court found that disputes accounting for nonpayment

of the wages claimed by plaintiffs did exist and that therefore as a matter of law,

plaintiffs could not receive liquidated damages. See Dellarussiani J.A. 28. So the trial

court granted the employer’s motion for summary judgment on count III. We agree.

The district court correctly reasoned that Ohio law requires that a dispute

accounting for nonpayment precludes the award of liquidated damages to a wage
Nos. 07-4553; 08-3184 O’Brien, et al. v. Ed Donnelly

Enterprises, et al.

Page 12

3

Plaintiffs cite Twaddle v. RKE Trucking Co., 2006 WL 840388 (S.D. Ohio 2006) as an instance

where a trial court ruled that liquidated damages under O.R.C. 4113.15(B) are available, even though

defendants disputed liability on certain claims. Twaddle, at *13, *2. Twaddle’s analysis of liquidated

damages under Ohio law was truncated. The court thought it was for the trier of fact to decide whether

the defendant employer could show it acted with “good faith.” A showing of good faith would allow the

employer to avoid liquidated damages under FLSA. See 29 U.S.C. § 260 (“if the employer shows to the

satisfaction of the court that the act or omission giving rise to such action [under § 216(b)] was in good

faith and that he had reasonable grounds for believing that his act or omission was not a violation of the

[FLSA], the court may, in its sound discretion, award no liquidated damages” or limit liquidated damages”)

(emphasis added). However, O.R.C. 4113.15(B) does not contain this language about good faith or

reasonable grounds. It is not self-evident that FLSA law on liquidated damages should control the

interpretation of a “dispute . . . accounting for nonpayment” under Ohio statute.

claimant. See, e.g., Jones v. Select Indus. Corp., 2006 WL 1705201, at *6 (S.D. Ohio

2006) (“where the employer disputes the wage claim, no liquidated damages are due”).

Plaintiffs contend that there was no dispute in this case, because the employer never

informed its employees that the employer was disputing the employees’ entitlement to

certain wages. Dellarussiani Appellants’ Br. at 36. But the statute does not require such

interaction between an employer and an employee. And even though the cases cited by

defendants involve situations where an employer had to decide whether wages were due

as a matter of policy, nothing in the statute limits a dispute accounting for nonpayment

to such situations. See Fridrich v. Seuffert Construction Co., Inc., 2006 WL 562156, at

*4 (Ohio Ct. App. 2006) (deciding that “dispute existed as to whether Seuffert

Construction's vacation policy required the payout for unused vacation days”); Haines

& Company, Inc. v. Stewart, 2001 WL 166465, at *3 (Ohio Ct. App. 2001) (holding that

where parties disputed whether certain commissions were “wages” under Prompt Pay

Act, a “contest” existed, meaning no liquidated damages were available). We see no

reason why a factual dispute over the hours worked could not suffice as a dispute

accounting for nonpayment.

Next, plaintiffs suggest that the district court’s broad interpretation of what

constitutes a dispute allows any recalcitrant employer to reflexively invoke the safe

harbor that a dispute existed. Dellarussiani Reply Br. at 9.3

 That, according to

plaintiffs, would render as surplus the statute’s provision of liquidated damages.

But there could be situations where, under the district court’s interpretation of

the statute, the liquidated-damages provision could come into play. Suppose an
Nos. 07-4553; 08-3184 O’Brien, et al. v. Ed Donnelly

Enterprises, et al.

Page 13

employer had promised to pay a certain sum, and the employees agreed that this sum was

their due wage. However, a clerical glitch prevented the sum from being delivered to

the employees. In such a situation, the employer could not reasonably maintain that a

“dispute” accounted for nonpayment. Likewise, if an employer were short on incoming

cash, and consequently had to delay paying its employees, but conceded the employees’

entitlement to payment, the employer could not reasonably argue that a “dispute”

accounted for nonpayment. Further, because application of the statute’s safe harbor

requires that there be a contest, court order, or dispute of a wage claim accounting for

nonpayment, it is proper to focus on whether the asserted dispute accounts for the

nonpayment. Thus, it is not the case that any recalcitrant employer can simply declare

that there is a dispute and then retroactively insulate its actions.

Concerning Dellarussiani, the defendants disputed that they owed anything more

than what they paid their employees according to the employer’s own payroll records.

Contrary to plaintiffs’ argument, the offer of judgment does not undermine the existence

of a dispute accounting for nonpayment, because the Rule 68 offer did not concede

liability; it was a procedural tool to encourage the quick resolution of litigation.

Dellarussiani J.A. 281–82.

Plaintiffs suggest that a jury decide whether a dispute existed. Dellarussiani

Appellants’ Br. at 36. However, plaintiffs have failed to raise a genuine issue of material

fact, as required under Rule 56, as to whether defendants’ disputes with the plaintiffs

count as “dispute[s]” under the statute. The district court examined the facts surrounding

each of the plaintiffs’ claims and concluded that a dispute accounting for nonpayment

did indeed exist. Dellarussiani J.A. 32–38. The district court framed its inquiry as one

determining whether the evidence demonstrated “a reasonable basis upon which

Defendants disputed” the plaintiffs’ claims. Although asking whether the defendant has

a “reasonable basis” for disputing the claims does not flow directly from O.R.C.

§ 4113.15(B), the district court’s “reasonable basis” gloss aided its consideration of

whether there was a genuine issue regarding whether there was a contest or dispute

“accounting for nonpayment.” Plaintiffs have not shown that the district court erred
Nos. 07-4553; 08-3184 O’Brien, et al. v. Ed Donnelly

Enterprises, et al.

Page 14

in concluding as a matter of law that there was no genuine issue of material fact whether

there was a contest or dispute accounting for nonpayment. Even if plaintiffs may have

provided evidence creating an issue of fact as to whether the underlying FLSA and

wage-payment violations occurred, that evidence, even when viewed most favorably

towards plaintiffs, does not suggest that there was no dispute accounting for

nonpayment. Rather, the evidence, even when viewed in the required light, establishes

that a contest or dispute regarding defendant’s liability for further wages accounted for

its nonpayment.

Alternatively, if plaintiffs had evidence that the wages were withheld even

though defendants conceded or reasonably had to concede that the wages were due, such

evidence — like evidence about clerical glitches or cash-flow problems — could create

a triable issue of fact on the Prompt Pay Act claim. But in our case, the plaintiffs have

no such evidence: the reason that the lawsuit has continued is that defendants do not

concede that the wages claimed by plaintiffs are due. Therefore, the district correctly

granted summary judgment in defendants’ favor on count III.

III. Motion to dismiss Dellarussiani plaintiffs from O’Brien appeal

Arguing that we lack subject-matter jurisdiction due to mootness, defendants

move to dismiss from the O’Brien appeal the plaintiffs who splintered off from the

O’Brien case following decertification so that they could file individual claims in

Dellarussiani. The motion is granted in part and denied in part. We explain why in four

parts: (A) mootness due to Dellarussiani judgment on counts I and II; (B) defendants’

argument that mootness of the FLSA claim necessarily renders any supplemental claims

moot; (C) the hurdle of res judicata for the Dellarussiani plaintiffs’ Prompt Pay Act

claim in O’Brien; (D) and the res judicata bar against the common-law claims that

Dellarussiani plaintiffs have in O’Brien.
Nos. 07-4553; 08-3184 O’Brien, et al. v. Ed Donnelly

Enterprises, et al.

Page 15

A. Mootness due to Dellarussiani judgment on counts I and II

Because we affirm the district court’s entry of judgment in the Dellarussiani

plaintiffs’ favor on counts I and II, any of the plaintiffs’ corresponding claims in O’Brien

— claims that they hope to maintain if the district court’s decertification is reversed on

appeal — are now moot. There is no longer a live controversy as to the FLSA and the

corresponding Ohio wage-payment claim, Gottfried v. Med. Planning Servs., Inc., 280

F.3d 684, 691 (6th Cir. 2002), because there is no other relief that plaintiffs could obtain

on those claims in O’Brien, given our overall affirmance of the district court’s rulings

in Dellarussiani and our remand of the attorney-fees issue in Dellarussiani. 

B. Defendants’ argument that mootness of the FLSA claim necessarily renders

any supplemental claims moot

Defendants suggest that our inquiry stops here, because the only claim in O’Brien

that is statutorily capable of proceeding collectively is the FLSA claim. Appellees’

Reply in Supp. of Mot. to Dismiss at 3. Given that the FLSA claim that the

Dellarussiani plaintiffs had in O’Brien has been mooted by the judgment entered in

Dellarussiani pursuant to the Rule 68 offer, the collective-action device is unavailable,

according to defendants’ theory, for the Dellarussiani plaintiffs’ supplemental claims

that remain in O’Brien. Defendants maintain that because the Dellarussiani plaintiffs’

appeal in O’Brien seeks reinstatement into a collective action, the unavailability of this

vehicle means that their appeal is moot. 

We reject this argument. In general, as we discuss in Part IV.A, if a FLSA lead

plaintiff also brings supplemental state claims and then seeks certification as a collective

action, a district court evaluates whether the opt-in plaintiffs are “similarly situated”

under 29 U.S.C. § 216(b). If the opt-in plaintiffs are similarly situated to the lead

plaintiffs, it does not make sense to suggest, as defendants seem to, that only the FLSA

claims may proceed collectively, while the supplemental claims would have to proceed

individually or would be required to run in parallel to the collective action only by

satisfying the more stringent requirements of Fed. R. Civ. P. 23. See, e.g., Molina v.
Nos. 07-4553; 08-3184 O’Brien, et al. v. Ed Donnelly

Enterprises, et al.

Page 16

First Line Solutions, 566 F. Supp. 2d 770, 789–90 (N.D. Ill. 2007) (declining to certify

a parallel Fed. R. Civ. P. 23(b)(3) class of supplemental claims alongside a FLSA

collective action, but allowing any opt-in plaintiffs to pursue supplemental claims as part

of a collective action). To disjoin FLSA and supplemental claims in the manner

proposed by defendants would defeat the purpose of supplemental jurisdiction, which

is to facilitate the resolution of claims that are so closely related to claims for which

federal jurisdiction originally lies that the supplemental claims are part of the same case

or controversy as the claim independently invoking federal jurisdiction. See 13D

Wright, Miller, Cooper, & Freer, Federal Practice and Procedure § 3657 at 317 n.4 (3d

ed. 2008). Notwithstanding the lack of express statutory authority in the FLSA for

collective certification of non-FLSA claims, supplemental claims by definition are

treated as part of the same controversy animated by a particular employee’s FLSA claim.

See 28 U.S.C. § 1367(a). 

So far, we have explained that an opt-in employee with FLSA and supplemental

claims can have both of those claims certified as part of a collective action where a lead

plaintiff has FLSA and supplemental claims. That is the background for the situation we

face, where a lead plaintiff has FLSA and supplemental claims, but an opt-in employee

only has supplemental claims. 

In Exxon Mobil Corp. v. Allapattah Services, Justice Ginsburg explained the

Court’s unanimous understanding that 28 U.S.C. § 1367(a) confers supplemental

jurisdiction in cases where one plaintiff has a claim invoking federal-question

jurisdiction, 28 U.S.C. § 1331, but other plaintiffs only have state claims. 545 U.S. 546,

587–88 (2005) (Ginsburg, J., dissenting); see id. at 559 (majority opinion) (“If the court

has original jurisdiction over a single claim in the complaint, it has original jurisdiction

over a ‘civil action’ within the meaning of §1367(a), even if the civil action over which

it has jurisdiction comprises fewer claims than were included in the complaint. Once the

court determines it has original jurisdiction over the civil action, it can turn to the

question whether it has a constitutional and statutory basis for exercising supplemental

jurisdiction over the other claims in the action.”); see also Lindsay v. Gov’t Employees
Nos. 07-4553; 08-3184 O’Brien, et al. v. Ed Donnelly

Enterprises, et al.

Page 17

Ins. Co., 448 F.3d 416, 423 (D.C. Cir. 2006) (analyzing Allapattah and holding in a case

involving FLSA and state-law claims that “so long as the district court has original

jurisdiction over a single claim, it may exercise supplemental jurisdiction over any

additional claim that forms part of the same Article III case or controversy”). Under

Allapattah, § 1367(a)'s requirement that the section only apply “in any civil action of

which the district courts have original jurisdiction” is clearly satisfied when a single

claim invoking federal-question jurisdiction exists. Thus, an inquiry whether

supplemental jurisdiction exists over state-law claims need only examine whether the

state claims are so closely related to the federal claim that the state claims form part of

the same Article III case or controversy as the federal claim.

Therefore, as long as someone in a collective action has a FLSA claim,

employees who are similarly situated can be part of the collective action, even if the

other employees only have supplemental claims. Accordingly, if for some reason, a

particular employee or group of employees did not have viable FLSA claims, due to

mootness or claim preclusion, for instance, but had extant supplemental claims, a court

would examine whether these employees were still similarly situated to the lead

plaintiffs, which they may or may not be.

The short of our discussion is that we have jurisdiction to consider whether the

Dellarussiani plaintiffs, who have only supplemental claims that are still alive, could

still be part of the collective action, were we to remand the case for recertification. Even

though the Dellarussiani plaintiffs’ FLSA claim in O’Brien is now moot due to the

Dellarussiani judgment, the FLSA only requires an analysis of whether these plaintiffs

are similarly situated to the lead plaintiffs whom they would join upon a putative remand

for recertification of the collective action. That similarly-situated analysis is not mooted

by the lack of a FLSA claim on the part of the employees who seek to opt into the

collective action.
Nos. 07-4553; 08-3184 O’Brien, et al. v. Ed Donnelly

Enterprises, et al.

Page 18

C. Res judicata and the Dellarussiani plaintiffs’ Prompt Pay Act claim in

O’Brien

We turn therefore to the other supplemental claims. With respect to the

plaintiffs’ third claim in O’Brien for liquidated damages under Ohio’s Prompt Pay Act,

O.R.C. § 4113.15(B): In Dellarussiani, this claim died on summary judgment, and

above, we explain why we affirm the district court’s disposition of count III. But the

Dellarussiani plaintiffs still have a Prompt Pay Act claim in O’Brien. Mootness

typically would not bar the Dellarussiani plaintiffs’ § 4113.15(B) claim in O’Brien, in

view of their loss at summary judgment on an identical claim in other litigation.

Ordinarily, when a claim has already been resolved in a prior suit, mootness is invoked

as a bar to subject-matter jurisdiction when “full relief” has been accorded by the prior

tribunal. See, e.g., Davis v. Sun Oil Co., 148 F.3d 606, 611 n.4 (6th Cir. 1998). Indeed,

this is the case for counts I and II of Dellarussiani: plaintiffs have already won on these

claims in Dellarussiani, and there is nothing more for them to win on a putative remand

in O’Brien, particularly since we are remanding to the Dellarussiani district court the

issue of what attorney fees can be recouped. That is why the Dellarussiani plaintiffs’

are dismissed from the O’Brien appeal as to their FLSA and O.R.C. § 4111 claims.

But with regard to the Prompt Pay Act claim for liquidated damages, the

Dellarussiani plaintiffs in O’Brien are not, strictly speaking, barred by mootness but by

claim preclusion. This fine distinction is worth discussing, because if mootness were to

apply when a losing party received an adverse ruling but persisted in seeking relief in a

subsequent suit, a federal court sitting in that subsequent suit would be required to sua

sponte inquire into its own subject-matter jurisdiction over the previously losing party’s

claim. In other words, whether res judicata applied would be probative of whether the

subsequent claim was moot and whether the claim was justiciable. But Fed. R. Civ. P.

8(c) clearly frames res judicata as an affirmative defense, which means that it can be

waived and that it does not go to subject-matter jurisdiction. See O’Connor v. Pierson,

426 F.3d 187, 194 (2d Cir. 2005). Therefore, losing a claim on summary judgment in

a previous suit does not moot such a claim in a subsequent lawsuit. Rather, the
Nos. 07-4553; 08-3184 O’Brien, et al. v. Ed Donnelly

Enterprises, et al.

Page 19

subsequent claim is barred under the doctrine of claim preclusion. See Ohio Nat. Life

Ins. Co. v. U.S., 922 F.2d 320, 325 (6th Cir. 1990).

Under Sixth Circuit Rule 27(d)(1), “[m]otions to dismiss ordinarily may not be

filed on grounds other than lack of jurisdiction.” This rule favors denying the

defendants’ motion to dismiss as to the Dellarussiani plaintiffs’ Prompt Pay Act claim

in O’Brien, because claim preclusion, not mootness, is the obstacle that plaintiffs face

on this claim. The individual Dellarussiani plaintiffs could then conceivably be

recertified into a collective action along with the lead plaintiffs in O’Brien, given our

conclusion, which we discuss later in Part IV.A.2, that the district court applied the

wrong standard in decertifying the collective action in O’Brien. However, on remand,

the defendants would surely raise res judicata and ask the district court to dismiss the

extant Dellarussiani plaintiffs’ claim once and for all. Res judicata in this instance is

an “insurmountable hurdle” that has mootness-like effects. See Myer v. Americo Life,

Inc., 469 F.3d 731, 733 (8th Cir. 2006).

Rather than grant the defendants’ motion to dismiss the Dellarussiani plaintiffs’

appeal in O’Brien as to their Prompt Pay Act claim, we instead choose to avoid

transgressing the boundary between mootness and claim preclusion. The motion is

denied as to the claim for § 4113.15(B) liquidated damages, but we find that under

§ 216(b) of the FLSA, the Dellarussiani plaintiffs are not “similarly situated” to the lead

plaintiffs in O’Brien, given the inevitable preclusion of both the Prompt Pay Act claims

and the common-law claims, as discussed next in Part III.D. Therefore, on the merits,

we affirm the district court’s decertification of these plaintiffs’ Prompt Pay Act claim.

Thus, the Dellarussiani plaintiffs are unable to rejoin the collective action. Technically,

they could attempt to file individual actions, as we are affirming the district court’s

decertification and dismissal without prejudice of their claim. But such suits would be

nipped in the bud by the affirmative defense of claim preclusion.
Nos. 07-4553; 08-3184 O’Brien, et al. v. Ed Donnelly

Enterprises, et al.

Page 20

D. Res judicata and Dellarussiani plaintiffs’ common-law claims in O’Brien

Finally, we must consider whether the Dellarussiani plaintiffs’ appeal from the

decertification order in O’Brien is moot as to common law claims pleaded in O’Brien.

Because the FLSA and common-law claims appear to be based on the same alleged

conduct, we are skeptical that the district court would afford any more relief upon a

putative remand on the common-law claims in O’Brien than what the plaintiffs already

received on counts I and II pursuant to the offer of judgment in Dellarussiani.

Nevertheless, we cannot say as a matter of law how the disposition of a FLSA claim

affects the common-law claims. That would require an analysis of the elements of and

remedies offered by the common-law claims compared to the FLSA claim. It is possible

that a federal claim could be moot while a supplemental claim based on the same

conduct might not be.

The doctrine that would definitively bar the Dellarussiani plaintiffs from

pursuing their common-law claims in O’Brien upon a putative remand is claim

preclusion, not mootness. Therefore, for the reasons discussed in the previous section,

we have subject-matter jurisdiction over the Dellarussiani plaintiffs’ appeal as to the

common-law claims, and the motion to dismiss is accordingly denied with respect to

these claims.

The plaintiffs pled for common-law relief in O’Brien, but not in Dellarussiani.

See O’Brien J.A. 11–14; Dellarussiani J.A. 4–6. Because the district court dismissed

the Dellarussiani plaintiffs from O’Brien without prejudice, the Dellarussiani plaintiffs

could have brought the common-law claims in Dellarussiani. But they did not.

Therefore, they will inevitably be barred by res judicata. We affirm the decertification

in O’Brien as to the Dellarussiani plaintiffs: they are not similarly situated under the

FLSA to the lead plaintiffs, because they will not have any claims grounded in the

actionable conduct. They have nothing left to litigate in O’Brien, as all of their claims

in O’Brien are moot or will be claim-precluded.
Nos. 07-4553; 08-3184 O’Brien, et al. v. Ed Donnelly

Enterprises, et al.

Page 21

IV. The O’Brien suit

Therefore, only the two lead O’Brien plaintiffs and Stevie LeVan are now parties

to the appeal from the O’Brien district court’s decertification order. After we discuss

why the district court’s application of the “similarly situated” language from the FLSA

was partly in error, we explain why the district court’s decertification of the collective

action will be affirmed. We then discuss the district court’s evidentiary and summaryjudgment rulings concerning the two lead O’Brien plaintiffs.

A. Decertification

The Fair Labor Standards Act provides a private cause of action against an

employer “by any one or more employees for and in behalf of himself or themselves and

other employees similarly situated.” 29 U.S.C. § 216(b) (emphasis added).

Unlike class actions under Fed. R. Civ. P. 23, collective actions under FLSA

require putative class members to opt into the class. See 29 U.S.C. § 216(b) (“No

employee shall be a party plaintiff to any such action unless he gives his consent in

writing to become such a party and such consent is filed in the court in which such action

is brought.”). These opt-in employees are party plaintiffs, unlike absent class members

in a Rule 23 class action. See 7B Wright, Miller, & Kane, Federal Practice and

Procedure § 1807 at 474 n.13 (3d ed. 2005).

The district court followed a two-stage certification process, as many courts do,

to determine whether the opt-in plaintiffs and lead plaintiffs were similarly situated. See

id. § 1807 at 487 n.48. After the initial conditional certification of the class, the parties

entered into discovery. At the second stage, the district court reviewed the evidence

produced during discovery and decertified the class for two main reasons. First, the

district court stated that each claim presented by each plaintiff would require an

extensive individualized analysis to determine whether a FLSA violation had occurred,

frustrating the “collective consideration of common questions of fact and law.” O’Brien

J.A. 72. Second, the alleged violations were not based on a broadly applied, common
Nos. 07-4553; 08-3184 O’Brien, et al. v. Ed Donnelly

Enterprises, et al.

Page 22

scheme, nor were the violations widespread even among the plaintiffs, who constituted

only a small fraction of the total number of potential collective-action members. See

J.A. 69. Specifically, out of the 426 potential collective-action members, the district

court noted that evidence produced through discovery revealed that only five of the ten

plaintiffs alleged that their time-sheets were altered, only five alleged that they were

required to work off the clock, and three plaintiffs failed to allege that they suffered from

either practice. Id.

1. Standard of review

The Sixth Circuit has not previously announced its standard for reviewing a

district court’s certification rulings in the FLSA context. But the Eleventh Circuit

reviews collective-action–certification decisions for abuse of discretion, and even the

plaintiffs suggest that the court apply this deferential standard. See Anderson v. Cagle’s,

Inc., 488 F.3d 945, 953–54 (11th Cir. 2007). We adopt this standard.

2. The meaning of “similarly situated”

The Fair Labor Standards Act does not define “similarly situated,” and neither

has this court. However, district courts have based their final-certification decisions on

a variety of factors, including the “factual and employment settings of the individual[]

plaintiffs, the different defenses to which the plaintiffs may be subject on an individual

basis, [and] the degree of fairness and procedural impact of certifying the action as a

collective action.” See 7B Wright, Miller, & Kane, supra, § 1807 n.65 at 497; Anderson,

supra, 488 F.3d at 953 . The lead plaintiffs bear the burden of showing that the opt-in

plaintiffs are similarly situated to the lead plaintiffs. See 7B Wright, Miller, and Kane,

supra, § 1807 at 476 n.21. Showing a “unified policy” of violations is not required,

though. See Grayson v. K Mart Corp., 79 F.3d 1086, 1095 (11th Cir. 1996) (suit

alleging age discrimination under Age Discrimination in Employment Act (ADEA), 29

U.S.C. §§ 621–34, which incorporates by reference the enforcement provisions of the

FLSA). But see Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1214 n. 8 (5th Cir.1995)

(for conditional certification so that notice to putative class members could be sent, court
Nos. 07-4553; 08-3184 O’Brien, et al. v. Ed Donnelly

Enterprises, et al.

Page 23

required that plaintiffs allege that they were victims of a single decision, policy, or plan

infected by discrimination), overruled on other grounds by Desert Palace, Inc., v. Costa,

539 U.S. 90 (2003); Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1105 (10th

Cir. 2001) (same).

Plaintiffs argue that they did indeed allege two common ways by which the

employer violated the FLSA, namely, (1) that the defendant made employees work off

the clock, and (2) that the employer or its agents improperly edited employees’ time

punches after the fact, thus cutting the hours for which plaintiffs were paid. Both the

district court and the defendant note that to determine whether a particular violation of

the FLSA took place in this case requires an individualized analysis that examines the

facts of each alleged violation. For this reason, the district court decertified, determining

that individualized issues predominated.

But such a collection of individualized analyses is required of the district court.

Under the FLSA, opt-in plaintiffs only need to be “similarly situated.” While Congress

could have imported the more stringent criteria for class certification under Fed. R. Civ.

P. 23, it has not done so in the FLSA. See Grayson, 79 F.3d at 1096 (section 216(b)’s

“similarly situated” requirement is less stringent than Rule 20(a) requirement that claims

“arise out of the same action or occurrence” for joinder to be proper, or even Rule

23(b)(3)’s requirement that common questions predominate for a 23(b)(3) class to be

certified). But see Shushan v. Univ. of Colo. at Boulder, 132 F.R.D. 263, 266–67

(D. Colo. 1990) (applying Rule 23 to collective actions under 216(b) for purpose of

effective management of litigation). The district court implicitly and improperly applied

a Rule 23–type analysis when it reasoned that the plaintiffs were not similarly situated

because individualized questions predominated. See O’Brien J.A. 70. This is a more

stringent standard than is statutorily required. 

Granted, it is clear that plaintiffs are similarly situated when they suffer from a

single, FLSA–violating policy, and when proof of that policy or of conduct in

conformity with that policy proves a violation as to all the plaintiffs. In the instant case,
Nos. 07-4553; 08-3184 O’Brien, et al. v. Ed Donnelly

Enterprises, et al.

Page 24

proof of a violation as to one particular plaintiff does not prove that the defendant

violated any other plaintiff’s rights under the FLSA. Nevertheless, the plaintiffs are

“similarly situated” according to § 216(b). Furthermore, it is possible that representative

testimony from a subset of plaintiffs could be used to facilitate the presentation of proof

of FLSA violations, when such proof would ordinarily be individualized. See Morgan

v. Family Dollar Stores, Inc., 551 F.3d 1233, 1263–65, 1279–80 (11th Cir. 2008) (as

amended) (determining that although proof of exemption from FLSA’s overtime-pay

requirements might appear to be individualized, certain plaintiffs’ representative

testimony could be used to show exemption’s inapplicability, as all plaintiffs in

collective action were similarly situated), petition for cert. filed, 77 U.S.L.W. 3596 (U.S.

Apr. 15, 2009) (No. 08-1287). We do not purport to create comprehensive criteria for

informing the similarly-situated analysis. But in this case, the plaintiffs were similarly

situated, because their claims were unified by common theories of defendants’ statutory

violations, even if the proofs of these theories are inevitably individualized and distinct.

The claims were unified so, because plaintiffs articulated two common means by which

they were allegedly cheated: forcing employees to work off the clock and improperly

editing time-sheets. We do not mean to require that all collective actions under § 216(b)

be unified by common theories of defendants’ statutory violations; however, this is one

situation where a group of employees is similarly situated.

Plaintiffs offer their own interpretation of what “similarly situated” means.

Instead of arguing that Rule 23(b)(3) predominance should not be a criterion for § 216(b)

collection actions, plaintiffs say that putative collective-action members whose “causes

of action under the FLSA accrued at about the time and place in the approximate manner

of the named plaintiff would be similarly situated” to the lead plaintiffs. See O’Brien

Appellants’ Br. at 20 (citing Pritchard v. Dent Wizard Intern. Corp., 210 F.R.D. 591,

595 (S.D. Ohio 2002)). Defendants explain that those cases cited by plaintiffs arise in

situations where a court has to decide whether a certain class of employees is exempt

from the FLSA’s overtime-pay requirements. Those cases, argue defendants, lend

themselves to collective adjudication because common questions predominate. For
Nos. 07-4553; 08-3184 O’Brien, et al. v. Ed Donnelly

Enterprises, et al.

Page 25

instance, a court can easily decide whether all the dent-removal technicians (as in

Pritchard) are exempt from overtime-pay requirements, without having to examine the

specific factual situation of each dent-removal technician.

While we agree with plaintiffs that “about the time and place in the approximate

manner” is a starting point for understanding what “similarly situated” means, such an

interpretation can result in a standard that is more demanding than what the statute

requires, unless one excludes Rule 23 predominance from being an implicit requirement

for § 216(b) collective actions. And protecting § 216(b) in this way is what we have

outlined above. We do not suggest that aspects of Rule 23 could never be applied to a

FLSA collective action. Rather, applying the criterion of predominance undermines the

remedial purpose of the collective action device. 

As for the argument that the alleged unlawful practices — making employees

work off the clock and altering the time-sheets — were not alleged by all of the

plaintiffs, this argument ultimately requires us to affirm the decertification. Stevie

LeVan is the only opt-in plaintiff who could possibly benefit from the recertification of

the collective action. Unlike the Dellarussiani plaintiffs, LeVan had opted into O’Brien

but did not pursue her claim in Dellarussiani. As the district court observed, LeVan is

clearly not similarly situated to the lead plaintiffs, because she failed to allege that she

suffered from either unlawful practice. O’Brien J.A. 69 (district-court opinion), 289

(LeVan Dep. at 33). And as we explained in Part II, the Dellarussiani plaintiffs cannot

be recertified because some of their claims are moot and the others will be claimprecluded, leaving them without any claims to pursue and necessarily excluding them

from being “similarly situated” under § 216(b).

In general, though, a district court should examine whether partial decertification

is possible, when faced with the situation where a subset of the plaintiffs fail to allege

violations of the FLSA. The option of partial certification is important to consider,

because it counters the argument that a collective action must be totally decertified if

some members are not similarly situated to the others. In general, plaintiffs who are not
Nos. 07-4553; 08-3184 O’Brien, et al. v. Ed Donnelly

Enterprises, et al.

Page 26

4

But see Greisz v. Household Bank (Ill.), N.A., 176 F.3d 1012, 1013 (7th Cir. 1999) (in Rule 23

context, “[t]he smaller the individual claim, the less incentive the claimant has to police the class lawyer’s

conduct, and the greater the danger, therefore, that the lawyer will pursue the suit for his own benefit rather

than for the benefit of the class.”)

similarly situated — for instance, plaintiffs who did not allege suffering under either

unlawful practice — could be dismissed while keeping intact a partial class. Plaintiffs

who do present evidence that they are similarly situated to the lead plaintiffs should not

be barred from the opportunity to be part of a FLSA collective action, because the

collective action serves an important remedial purpose. Through it, a plaintiff who has

suffered only small monetary harm can join a larger pool of similarly situated plaintiffs.

See Hoffman–La Roche, Inc., v. Sperling, 493 U.S. 165, 170 (1989). That pool can

attract effective counsel who knows that if the plaintiffs prevail, counsel is entitled to a

statutorily required reasonable fee as determined by the court.4

 In the age-discrimination

context, which also requires that opt-in plaintiffs be similarly situated for certification

of a collective action, “Congress has stated its policy that ADEA plaintiffs should have

the opportunity to proceed collectively.” See Grayson, 79 F.3d at 1096. As some

district courts have noted, “imposing any additional restrictions from Rule 23 would be

contrary to the broad remedial goals” of the FLSA and its sister statutes — such as the

Equal Pay Act, 29 U.S.C. § 206(d), and the ADEA, 29 U.S.C. § 626(b) — which

incorporate the same statutory language concerning collective actions. See 7B Wright,

Miller, and Kane, supra, § 1807 at 481 n.25, at 468–69 nn.2–3.

A final word on the parties’ less persuasive points. Defendants note that some

of the plaintiffs were managers and therefore could not be “similarly situated.” This is

not a compelling argument, because managers could also have been cheated by

defendants. Also, in their reply brief, plaintiffs mischaracterize the reasoning of the

district court, implying that the district court decertified the class because plaintiffs

alleged two ways, instead of one way, in which the plaintiffs suffered violations. As

discussed, the district court decertified because it did not see how plaintiffs’ claims, even

if based on two theories of how the FLSA violations were committed, could be

adjudicated but in an individualized manner.
Nos. 07-4553; 08-3184 O’Brien, et al. v. Ed Donnelly

Enterprises, et al.

Page 27

B. The lead plaintiffs in O’Brien

Having affirmed the district court’s decertification of the collective action, we

turn to the claims of the lead plaintiffs in O’Brien. The district court denied their motion

for sanctions due to spoliation, granted defendants’ motions to strike plaintiffs’

affidavits, and in the end, granted defendants’ motion for summary judgment. We

conclude that spoliation may have taken place; therefore, this issue is remanded for the

district court’s consideration. As for the district court’s other evidentiary rulings, the

affidavits should not have been stricken. Apart from any consideration of the effect of

possible spoliation sanctions on the merits of the lead plaintiffs’ claims, we disagree with

the district court in part and reverse as to the lead plaintiffs’ off-the-clock claims. We

vacate the district court’s entry of summary judgment on the lead plaintiffs’ timesheet–alteration claims, so that the district court may revisit this disposition once it

decides the spoliation issue.

1. Spoliation

In a motion for discovery sanctions, plaintiffs alleged that the defendants

intentionally lost or destroyed some of the Time Punch Change Approval (TPCA)

Reports. O’Brien J.A. 55. In addition to seeking monetary sanctions, the employees

wanted the district court to infer that the missing reports would have been adverse to the

employer. Id. at 4. These TPCA reports were printed by defendants’ computer system

at the end of each day, but the computer system itself only held the past 72 days in

backup. O’Brien J.A. 161–62. Plaintiffs maintain that these reports are the only records

that would reveal improper changes made by defendant to the time-sheets punched by

the employees. See O’Brien J.A. 178–79.

Although a district court’s discovery rulings are reviewed for abuse of discretion,

see U.S. v. Guy, 978 F.2d 934, 938–39 (6th Cir. 1992), we reverse the district court and

remand for its consideration whether it was reasonably foreseeable that the missing

reports would be needed in future litigation.
Nos. 07-4553; 08-3184 O’Brien, et al. v. Ed Donnelly

Enterprises, et al.

Page 28

5

Although the reply brief cites particular pages of Donnelly’s deposition transcript, those pages

are not included in the joint appendix or the supplemental appendix.

6

Here again, the reply brief cites and reproduces excerpts from one Chad Totche’s deposition

transcript, but those pages are not included in the appendices.

The magistrate judge’s opinion, adopted by the district court, reasons that

destruction or loss of evidence before notice of the O’Brien lawsuit is not a basis for

sanctions. O’Brien J.A. 60. That is true, but the issue here concerns when the defendant

was or should have been on notice that litigation requiring the missing reports as

evidence might ensue. See John B. v. Goetz, 531 F.3d 448, 459 (6th Cir. 2008) (duty to

preserve evidence is triggered when a “party has notice that the evidence is relevant to

litigation or . . . should have known that the evidence may be relevant to future

litigation”). The magistrate judge appears to assume that the defendant was on notice

only when the O’Brien lawsuit was filed. However, the district court should consider

whether the defendants should have been on notice earlier than the date of the filing of

the O’Brien suit. 

As the district court has not yet considered whether the employer was on notice

of its duty to preserve evidence before the O’Brien lawsuit, we do not conclude in the

first instance that spoliation did take place. Rather, the district court can consider facts

which could suggest that the employer should have anticipated that the missing records

needed to be preserved. For instance, plaintiffs assert that within four to six weeks after

buying the McDonald’s stores, defendant Donnelly learned that the prior owners had

been sued by a former employee who claimed she had not been paid wages due her. See

O’Brien Reply Br. at 7.5

 Plaintiffs also maintain that Donnelly knew that one of his

managers was changing employees’ time records by inserting breaks and that one of the

managers was making employees work off the clock. See O’Brien Reply Br. at 7, 9–10.6

If the district court concludes that spoliation did take place, the district court can

consider, under its inherent authority, whether it was negligence or bad faith that

motivated the defendants and relatedly, what sanction, if any, should be imposed.

Adkins v. Wolever, 554 F.3d 650, 653 (6th Cir. 2009) (en banc).
Nos. 07-4553; 08-3184 O’Brien, et al. v. Ed Donnelly

Enterprises, et al.

Page 29

Plaintiffs also argue that the defendants were under a duty to preserve for longer

than 72 days the electronic versions of the TPCA reports. O’Brien Appellants’ Br. at 29.

But plaintiffs provide no authority for that proposition. What matters is whether the

employer produces the reports in discovery, in either hard copy or electronic form.

Defendants also maintain that they did in fact produce payroll records which

show the hours worked. O’Brien Resp. Br. at 27. However, the payroll records would

not show whether edits were made by defendants to employees’ time-sheets. The TPCA

reports are therefore relevant to one of plaintiffs’ theories of how the alleged FLSA

violations happened. Defendants may argue that any edits were made for good reason,

see id., but the question of whether the edits were proper is separate from defendants’

obligation to produce relevant, non-privileged discovery materials. Finally, defendants

argue that of the missing reports, all but two pertain to the time period before the lawsuit

was filed. See O’Brien Resp. Br. at 26. But as stated above, the district court should

consider whether the defendant had a duty to preserve the records even before O’Brien

was filed.

2. O’Brien

Plaintiffs appeal the district court’s decision to strike portions of an affidavit that

O’Brien filed with her summary-judgment papers because they allegedly conflicted with

portions of her prior deposition testimony. The district court based its decision on the

rule that “a party cannot create a genuine issue of material fact by filing an affidavit,

after a motion for summary judgment has been made, that essentially contradicts [her]

earlier deposition testimony.” Penny v. United Parcel Serv., 128 F.3d 408, 415 (6th Cir.

1997).

The district court found that O’Brien “twice testified that the first thing she did

when she walked into the restaurant was clock in.” O’Brien v. Ed Donnelly Enters., Inc.,

No. 2:04-CV-00085, 2007 WL 4510246, at *3 (S.D. Ohio Dec. 18, 2007) (emphasis in

the original). The two sources the court looked to were (1) pages 45 and 46 of O’Brien’s
Nos. 07-4553; 08-3184 O’Brien, et al. v. Ed Donnelly

Enterprises, et al.

Page 30

deposition testimony in another case, Rogan v. Ed Donnelly Enterprises, and

(2) O’Brien’s deposition in this case. Id. 

However, plaintiffs pointed out that O’Brien also testified at her deposition in the

instant case that O’Brien performed work tasks before clocking in. Defendants’

argument as to this was that “the testimony ‘was given by O’Brien after she had already

testified under oath twice to the contrary, after consultation with her lawyer, and upon

questioning from her own lawyer at her deposition,’” and “that [t]his belated

testimony—given with assistance of counsel—is no different from the submission of an

inconsistent affidavit.” Id. (quoting defendants’ brief). Faced with O’Brien’s

subsequent deposition testimony that she worked before clocking in, the court framed

the question before it accordingly: “The essential question Plaintiffs’ argument poses

under [Reid v. Sears, Roebuck & Co., 790 F.2d 453 (6th Cir. 1986)] is whether there is

a compelling reason to allow deposition testimony that conflicts with prior testimony,

where such conflicting testimony clearly would not be allowed if it were contained in

an affidavit.” O’Brien, 2007 WL 4510246 at *4. The court looked to the purpose

behind barring subsequent contradictory affidavits—“screening out sham issues of fact”

(quoting Reid)—and decided to strike the conflicting portions of the O’Brien affidavit.

The court reasoned accordingly:

In the instant case, Plaintiff O’Brien twice testified — once during

deposition in the Rogan case, and once during deposition in the instant

case — that the first action she took upon arriving at work was clocking

in. (Rogan O’Brian Depo. at 45-46; O’Brien Depo. at 37). Plaintiff

O’Brien’s subsequent testimony that Ed Donnelly told her to clock in

half an hour late directly conflicts with her two prior statements. The

fact that Plaintiff O’Brien twice stated that she clocked in before starting

work, and only once stated that she performed work before clocking in

is of only minor importance. It is more than simple arithmetic that

convinces this Court that Plaintiff O’Brien’s later conflicting testimony

should not be allowed. Plaintiff O’Brien’s testimony during deposition

in the instant case — at a new time, in a new place, in a new action,

under circumstances removed from her prior testimony in the Rogan case

— serves as an independent reaffirmation of the testimony she originally

provided during deposition in Rogan. It is this entirely consistent

reaffirmation of her testimony in Rogan that convinces this Court that
Nos. 07-4553; 08-3184 O’Brien, et al. v. Ed Donnelly

Enterprises, et al.

Page 31

Plaintiff O’Brien’s subsequent testimony looks like a discrepancy that

creates a “transparent sham” and not a discrepancy that creates “an issue

of credibility . . . or go[es] to the weight of the evidence.” Bank of

Illinois at 1169-70. Accordingly, Defendants’ Motion to Strike is

well-taken with respect to the conflicting portions of the O’Brien

Affidavit.

Id.

We hold that the district court abused its discretion when it struck portions of

O’Brien’s affidavit. See Seay v. Tenn. Valley Auth., 339 F.3d 454, 480 (6th Cir.2003)

(applying abuse-of-discretion standard to district court’s ruling on motion to strike

evidentiary submissions). We consider the evidence chronologically — first, the Rogan

deposition; then, the deposition in the instant case; and finally, the affidavit filed with

appellants’ summary-judgment papers.

a. Rogan deposition

The district court found that O’Brien’s testimony in the instant case was an

“independent reaffirmation” of her deposition testimony in the earlier Rogan v. Ed

Donnelly Enterprises, Inc., et al., case. The court looked to pages 45–46 of the Rogan

deposition, where O’Brien testified that her first action upon arriving at work was to

clock in. However, the Rogan deposition itself contains conflicting testimony. A few

pages earlier in O’Brien’s deposition of April 4, 2005 in Rogan, O’Brien testified about

the various tasks she would perform when opening the store:

Q. . . . Will you explain what you did to open the store; that is,

getting in, what you turned on, that sort of thing.

A. Oh, boy. It’s been a while.

Q. I understand.

A. Go in, you turn on some nights [sic], because it was dark. The

fryer had to be turned on. Then you go boot up the computers for the

register, the computer for the registers; count the drawers; put the

drawers in; turn on the registers.
Nos. 07-4553; 08-3184 O’Brien, et al. v. Ed Donnelly

Enterprises, et al.

Page 32

J.A. 355 (O’Brien Rogan Dep. 42) (emphasis added). Thus, at one point in the Rogan

deposition, O’Brien testified that she would do a series of tasks before she turned on the

registers. 

Shortly thereafter, however — after testifying about those tasks — she was

specifically asked about clocking in:

Q. How did you clock in in the morning?

A. On the cash register.

Q. Okay. Did you have to turn it on before you clocked in?

A. I believe you could do that when you walked in.

Q. Okay.

A. You just had to turn on the register.

Q. Okay. So as you would walk in, you would – 

A. Clock in your number.

Q. – clock in and then go about doing the things you described,

turning on the computer in the back, the fryer, that sort of thing, correct?

A. Yes.

J.A. 226-27 (O’Brien Rogan Dep. 45–46) (emphasis added). 

The district court only cited to the latter portion of O’Brien’s deposition in

Rogan, in which O’Brien testified that she would clock in first. See O’Brien, 2007 WL

4510246, at *3-4 (citing O’Brien Dep. 45-46). Yet, the earlier portion of her Rogan

testimony indicates the opposite — that O’Brien performed certain tasks before turning

on the register and clocking in. Therefore, the testimony in the Rogan case was

internally inconsistent.

b. Deposition in the instant case

Months later, at the November 21, 2005 deposition in the instant case, opposing

counsel read part of O’Brien’s previous testimony in the Rogan case back to her — the

part about clocking in — and plaintiff affirmed that it had been transcribed accurately.

The following exchange then occurred:

Q. So is that the way it would work, that you would go in and then

you would clock in at the register and then go about doing the other

duties that you had as opening manager?
Nos. 07-4553; 08-3184 O’Brien, et al. v. Ed Donnelly

Enterprises, et al.

Page 33

7

See J.A. 215 (O’Brien Dep. 76) (noting that a “short recess” was taken right before concluding

defendants’ portion of the deposition).

A. Yes. Poke in your number and then – you had to turn on the lights

so you could see.

Q. Turn on the lights because it’s the middle of the night?

A. Yes.

Q. And then the first thing you would do is you’d clock in at the

registers, correct?

A. Yes.

Q. So that’s the first thing you would do before you’d go on and do

the other things?

A. You clock in and you turn on the fryer and just keep walking

backwards.

J.A. 206-07 (O’Brien Dep. 36-37) (emphasis added). It is clear from this testimony that

the first thing O’Brien would do after arriving in the morning, after turning on the lights

so that she could see, was clock in — that she would clock in before performing her

other tasks. Moreover, she testified she “clocked in approximately the same time every

day,” which was when she “came to work”:

Q. So you clocked in at the time that you came to work and clocked

out at the time you left?

A. Yes.

J.A. 208 (O’Brien Dep. 40) (emphasis added). 

However, later in O’Brien’s deposition in the instant case, her attorney conducted

some direct examination with the stated purpose of “clarify[ing] some testimony from

earlier.” J.A. 215 (O’Brien Dep. 76). On direct examination — after at least one recess

had occurred7

 — the following exchange occurred:

Q. You also testified earlier that you would clock in in the mornings

when you would come in to work, right?

A. Yes.

Q. Did you ever perform any work tasks before you would actually

clock in?

A. Yes.

Q. What work tasks would you perform?
Nos. 07-4553; 08-3184 O’Brien, et al. v. Ed Donnelly

Enterprises, et al.

Page 34

A. Turn on the lights. Turn on the fryer, the prep tables, the grill,

the oven. Count – unlock the safe, pull out the register drawers and

count the money there, count the safe. Turn on the computers. Turn on

the computers, you’d clock in, put the drawer – the register drawers in

the registers.

Q. Is there a – how long would you say it took for you to perform

those tasks before clocking in?

A. About 15 minutes.

Q. Was there any reason you didn’t clock in as soon as you would

come into the restaurant in the morning?

A. Ed told me not to. He said it only took an hour to open the store.

But I knew from working for KCJ. It took about an hour and a half.

Because if your computers didn’t come up, you had to be on the phone

with the computer company getting help to bring those up. Otherwise

you had no registers and you had to take your orders by hand and

calculate by hand.

J.A. 216-17 (O’Brien Dep. 77-78) (emphasis added). 

Later in the deposition, defense counsel resumed their examination of O’Brien.

O’Brien testified that the schedule would have her set to come in an hour before the

restaurant opened, but she would come in at approximately 4:30 a.m. to have additional

time to perform tasks before the restaurant opened:

Q. And you did that on a volunteer basis?

A. No.

Q. Well, Mr. Donnelly told you not to come in until an hour before

the restaurant opened, right?

A. He said it only took an hour to open the restaurant, but it took

closer to an hour and a half.

Q. But your instructions from your employer was to come in an hour

before the restaurant opened, right?

A. To clock in.

Q. Did Mr. – well, your instruction was to come in an hour before

the restaurant opened, right?

A. Yes.

* * *

Q. Mr. Donnelly never instructed you to come in an hour and a half

before the restaurant opened, correct?

A. Correct.

* * *
Nos. 07-4553; 08-3184 O’Brien, et al. v. Ed Donnelly

Enterprises, et al.

Page 35

8

Given such reasoning, it seems doubtful that the district court would have recognized the

attempted creation of a sham discrepancy if there had been no Rogan deposition at all.

Q. [Your manager] Nancy never instructed you to come in an hour

and a half before the restaurant opened?

A. No.

Q. . . . [D]id you ever tell Ed that you were coming into the

restaurant more than an hour before?

A. I told him that I come in at approximately 4:30 so I could have a

good opening and the restaurant would open on time.

Q. And is that when he said, no, come in at 5:00?

A. He said it only takes an hour to open the store. And he didn’t

want me clocking in until closer to 5:00.

Q. He never agreed to pay you for any time more than an hour before

the store opened, correct?

[Objection]

A. I don’t believe there was an agreement.

Q. He never said, I’ll pay you for more than an hour before the store

opened, correct?

A. He only wanted to pay for an hour because he thought that’s all

you needed. And you did need more.

J.A. 218-20 (O’Brien Dep. 80-82) (emphasis added).

O’Brien’s deposition testimony in the instant case, like her deposition testimony

in the Rogan case, is internally inconsistent. Admittedly, the more favorable testimony

for O’Brien is testimony that her attorney elicited from her after a recess. The district

court was convinced that this was an attempt to create a “sham” issue of fact because

O’Brien’s initial deposition testimony in the instant case was “an independent

reaffirmation of the testimony she originally provided during deposition in Rogan.”

O’Brien, 2007 WL 4510246, at *4. Indeed, the court concluded, “[i]t is this entirely

consistent reaffirmation of her testimony in Rogan that convinces this Court that

Plaintiff O’Brien’s subsequent testimony looks like a discrepancy that creates a

‘transparent sham’ and not a discrepancy that creates ‘an issue of credibility . . . or go[es]

to the weight of the evidence.’” Id. (emphasis added) (quoting Bank of Ill. v. Allied

Signal Safety Restraint Sys., 75 F.3d 1162, 1169-70 (7th Cir. 1995)).8

 As shown above,

however, the Rogan testimony itself was not consistent. There is no real discrepancy
Nos. 07-4553; 08-3184 O’Brien, et al. v. Ed Donnelly

Enterprises, et al.

Page 36

9

Moreover, in the Seventh Circuit case of Bank of Illinois v. Allied Signal Safety Restraint

Systems, which defendants and the district court cited, the prior statements that were made under oath in

a judicial proceeding were made in a child custody hearing and in responses to interrogatories. See Bank

of Ill., 75 F.3d at 1165. That case does not stand for the proposition that testimony in a later portion of a

deposition may be disregarded when it conflicts with testimony in an earlier portion of the same

deposition. Cf. also Srisavath v. City of Brentwood, 243 F. App’x. 909, 911-12, 917 (6th Cir. 2007) (cited

by plaintiffs at Reply Br. 18).

between O’Brien’s two depositions. If anything, what the O’Brien testimony in the

instant case reaffirms is that her Rogan testimony was likewise internally inconsistent.

That O’Brien could be inconsistent in both her depositions regarding this subject may

indicate a lack of credibility on her part or go to the weight of the evidence.9

c. Affidavit

In her affidavit filed at the summary-judgment stage of this case, O’Brien averred

the following:

6. Throughout my employment with Defendants, as an opening shift

swing manager, I routinely reported to work for Defendants at the North

store at 4:30 a.m. on weekdays and Saturdays. And, when I worked on

Sundays, I routinely regularly reported to work at 5:30 a.m.

7. I was required to report for work at these early times so that I, and

other crew members at the North store, could perform necessary tasks to

open the restaurant and begin serving food to customers at the time the

North store when it [sic] opened to the public.

8. These opening job tasks included turning on the lights, turning on

the computers, warming up the grills and fryers, turning on and placing

drawers in each of the five cash registers and preparing salads, yogurt

parfaits and breakfast foods.

9. Even though I was required to report to work at 4:30 a.m. during

the week, and 5:30 a.m. on Sundays, Mr. Donnelly instructed me not to

clock in on the cash register until closer to 5:00 a.m., and 6:00 a.m., on

Sundays. And, I followed Mr. Donnelly’s instruction in this regard.

10. As a result, Defendants’ timekeeping records relating to my hours

of work do not reflect all of the time that I worked at the North store.

J.A. 330-31. 

O’Brien’s initial testimony in her deposition in the instant case that she clocked

in first before performing other tasks only unambiguously contradicts the last sentence

of paragraph 9 of the affidavit — that O’Brien followed Donnelly’s instruction not to
Nos. 07-4553; 08-3184 O’Brien, et al. v. Ed Donnelly

Enterprises, et al.

Page 37

clock in until a certain time. But as discussed above, other testimony suggests that,

consistent with the affidavit, Donnelly also instructed O’Brien to not clock in until a

certain time. O’Brien never testified at her deposition that Donnelly instructed her to

clock in when she arrived. Indeed, she testified at her deposition that Donnelly did not

want her clocking in until closer to 5:00 and only wanted to pay her for an hour.

In short, the deposition testimony in O’Brien and Rogan did not speak with one

voice. In Aerel, S.R.L. v. PCC Airfoils, L.L.C., 448 F.3d 899, 908 (6th Cir. 2006), we

explained that when deciding the admissibility of a post-deposition affidavit at the

summary-judgment stage, the district court must first determine whether the affidavit

“directly contradicts” prior sworn testimony. The internal inconsistencies in O’Brien’s

testimony mean that the affidavit did not directly contradict the prior deposition

testimony. Because there is no direct contradiction, then, the court must not disregard

the affidavit, unless the court determines that the affidavit “constitutes an attempt to

create a sham fact issue.” Aerel, 448 F.3d at 908 (citing Franks v. Nimmo, 796 F.2d

1230, 1237 (10th Cir. 1986)). One of the factors to consider in determining whether the

affidavit tries to create a sham fact issue is whether the affiant was cross-examined

during earlier testimony. Aerel, 448 F.3d at 909. This factor matters, because a party

who is cross-examined but nevertheless offers unequivocal testimony, only to be

contradicted by a later affidavit, has indeed tried to create a sham fact issue. See

generally Franks, 796 F.2d at 1237 (citing Camfield Tires, Inc., v. Michelin Tire Corp.,

719 F.2d 1361, 1364–65 (8th Cir. 1983) for factors to consider whether sham fact issue

exists). That is not the case here, because “the alleged inconsistency created by the

affidavit existed within the deposition itself.” Kennett-Murray Corp. v. Bone, 622 F.2d

887, 894 (5th Cir. 1980). The district court should not have disregarded the affidavit.
Nos. 07-4553; 08-3184 O’Brien, et al. v. Ed Donnelly

Enterprises, et al.

Page 38

10A district court’s order granting summary judgment is reviewed de novo. Ciminillo v.

Streicher, 434 F.3d 461, 464 (6th Cir. 2006). In reviewing a motion for summary judgment, we must

determine whether the evidence presents a sufficient disagreement to require submission to a jury or

whether it is so one-sided that one party must prevail as a matter of law. Patton v. Bearden, 8 F.3d 343,

346 (6th Cir. 1993). When deciding a motion for summary judgment, the court must view the evidence

and draw all reasonable inferences in favor of the nonmoving party. Matsushita Electric Industrial Co.,

v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

d. Summary Judgment

Yet this portion of paragraph 9 of the affidavit is not essential for the Rule 56

analysis:10 a genuine issue of material fact had already been “raised by the deposition

even without consideration of the affidavit.” Kennett-Murray, 622 F.2d at 894.

The remaining portion of paragraph 9 and a portion of paragraph 7 remain to be

considered. O’Brien claims in paragraph 9 that she “was required to report to work at

4:30 a.m. during the week, and 5:30 a.m. on Sundays.” This apparently conflicts with

O’Brien’s deposition testimony, discussed above, that Donnelly “never instructed [her]

to come in an hour and a half before the restaurant opened” — nor did Nancy, her

manager. To avoid a conflict with this deposition that would call for the affidavit to be

stricken as an attempt to create a sham dispute of fact, this portion of the affidavit should

be read in a limited manner — i.e., that O’Brien “was required” to report to work at

those earlier times, but not that Ed Donnelly or Nancy (O’Brien’s manager) required her

to do so. By interpreting this sentence as O’Brien feeling required — perhaps by what

she deemed to be the demands of the job—to report early, the affidavit does not conflict

with her deposition and is therefore not subject to being stricken. Indeed, her deposition

testimony supports such a reading: Donnelly only wanted to pay for an hour of prep

time while, according to O’Brien, “you did need more.” This reading of this portion of

paragraph 9 and of the similar language in paragraph 7 saves them from being stricken,

but effectively neutralizes their usefulness for plaintiffs. Nevertheless, the

inconsistencies within the O’Brien and Rogan depositions, when read with the affidavit,

reveal a genuine issue of material fact.

The other aspect of the affidavit that should be considered is paragraph 10, which

significantly overlaps with plaintiffs’ legal claim on which the district court proceeded
Nos. 07-4553; 08-3184 O’Brien, et al. v. Ed Donnelly

Enterprises, et al.

Page 39

to grant summary judgment to defendants that O’Brien worked “off the clock.”

Paragraph 10 of the affidavit reads as follows: “As a result, Defendants’ timekeeping

records relating to my hours of work do not reflect all of the time that I worked at the

North store.” Though defendants moved for it to be stricken, it is not clear that the court

struck it. See O’Brien, 2007 WL 4510246, at *2 (noting that “Defendants ask the Court

to strike paragraphs 6-11,” but then listing the “at-issue paragraphs” of the O’Brien

Affidavit as paragraphs 6-9). We assume it was effectively stricken because the court

struck the paragraphs preceding it, on which it explicitly relied. 

Striking or disregarding paragraph 10 (to the extent the court did so) and granting

summary judgment to defendants on O’Brien’s “off the clock” claim was erroneous.

Admittedly, a colorable argument can be made that this court should affirm the district

court’s grant of summary judgment for defendants as to O’Brien’s “off the clock” claim

notwithstanding our ruling that the district court should not have stricken portions of the

O’Brien affidavit. Plaintiffs’ FLSA claims are of two varieties: that defendants

improperly altered the plaintiffs’ time records and that defendants did not pay plaintiffs

for time worked “off the clock.” As for the latter, O’Brien testified at her deposition as

follows:

Q. So you clocked in at the time that you came to work and clocked

out at the time you left?

A. Yes.

Q. So assuming that the computer accurately accepted the

information you punched into it and that it wasn’t later changed, the

computer records would reflect the actual time that you worked?

A. The computer records would.

J.A. 208 (O’Brien Dep. 40) (emphasis added). This italicized testimony is damaging to

O’Brien’s “off the clock” argument. Of course, it is only damaging if one assumes that

the computer records were accurate and were not later changed. 

Therefore, before we discuss whether the deposition testimony just cited

extinguishes plaintiff’s off-the-clock theory, we have to discuss the time-sheet–alteration

theory. Plaintiffs provide no evidence to support an allegation that the time records were
Nos. 07-4553; 08-3184 O’Brien, et al. v. Ed Donnelly

Enterprises, et al.

Page 40

subsequently altered to O’Brien’s detriment. Plaintiffs write in their appellate brief that

“[d]iscovery in the case below revealed that, on many occasions, Appellees’ managers

improperly changed many of the Appellants’ recorded hours of work in order to pay

them less than they were due.” Appellants’ Br. 11. They cite multiple sources for this

argument — none of which, as far as we can determine, support either O’Brien’s or

Prater’s time-sheet–alteration claim. Moreover, as the district court observed, O’Brien

testified at her deposition that she has no personal knowledge whether her time records

were altered by Ed Donnelly Enterprises or Ed Donnelly himself — that, aside from

being told by her attorney that her time records were altered, she has never heard that her

time records had been altered by Ed Donnelly Enterprises. J.A. 211-12 (O’Brien Dep.

50-51). Thus, O’Brien’s allegation regarding her time records is unsupported and thus

insufficient to survive summary judgment. However, the district court’s reconsideration

of the spoliation issue may alter its summary-judgment analysis of the alteration claims.

Therefore, we vacate the grant of summary judgment.

Returning to the off-the-clock theory: Assuming, then, that the computer was

accurate and was not subsequently changed, O’Brien’s deposition testimony that the

computer records reflected her actual time worked would initially seem to imperil

O’Brien’s “off the clock” claim. To the extent the subsequent affidavit contradicts this

testimony (as paragraph 10 of the affidavit does) it would seem to not have been error

to strike it. However, this excerpt of O’Brien’s deposition testimony should be read in

context. The question preceding this testimony about computer records concerned

clocking in: O’Brien answered “Yes” to the question of whether she “clocked in at the

time that [she] came to work and clocked out at the time [she] left.” See supra.

Although this is also not helpful testimony for O’Brien, we have already discussed how

she later contradicted this testimony in the same deposition, and how the Rogan

deposition was unclear on this point as well. Thus, the conflicting testimony within the

depositions raises a genuine issue of material fact as to the off-the-clock claim which

precludes summary judgment for defendants on this theory.
Nos. 07-4553; 08-3184 O’Brien, et al. v. Ed Donnelly

Enterprises, et al.

Page 41

Defendants raise one other argument. According to defendants, even if the

affidavit is considered and a factual dispute exists as to whether O’Brien clocked in first

or worked first before clocking in, defendant is not liable under the FLSA because there

is no evidence that defendants knew that O’Brien was working without compensation.

Appellees’ Br. at 37. But O’Brien’s deposition testimony clearly creates a genuine

factual issue, because she asserts that Donnelly knew that she was working off the clock.

See J.A. 223 line 22 (O’Brien Dep. at 89).

Thus, the district court did not err in granting defendants’ motion for summary

judgment as to the claim that O’Brien’s time records were altered. However, because

the district court’s ruling on spoliation might create a fact issue as to the alteration

claims, we vacate the grant of summary judgment. The district court did err in striking

portions of O’Brien’s affidavit and thus erred when it granted defendants’ motion for

summary judgment as to O’Brien’s “off the clock” claim. 

3. Prater

Plaintiffs appeal the district court’s decision to strike portions of the affidavit and

other documentation filed at the summary-judgment stage by plaintiff Dallas Prater. The

district court struck or otherwise disregarded paragraphs 6-9 of the affidavit as

inadmissible hearsay; paragraphs 10-13 for violating the Best Evidence Rule; paragraphs

15-16 for being inconsistent with deposition testimony and thus barred by the rule

discussed above; and exhibits 6 and 7 and paragraph 14 of the affidavit (which is based

on exhibit 7) because the exhibits do not qualify as “pedagogical devices,” which is what

the plaintiffs argued that they were. O’Brien, 2007 WL 4510246, at *4-10. We consider

each in turn.
Nos. 07-4553; 08-3184 O’Brien, et al. v. Ed Donnelly

Enterprises, et al.

Page 42

a. Affidavit ¶¶ 6-9

Paragraphs 6-9 of Prater’s affidavit read as follows:

6. Throughout my employment with Defendants, I often noticed

significant discrepancies on my paycheck as compared with the actual

number of hours I worked for Defendants.

7. At the time I worked for Defendants, I wrote down the number of

hours I worked in a ledger to compare with my paychecks. And, on at

least four occasions, I noticed that my paychecks did not reflect all the

hours I had noted working in my ledger.

8. As a result, I complained to Chad Totche, the restaurant manager

at the North store, on at least two occasions about the apparent shortages

in my pay.

9. On those occasions, Mr. Totche told me that he would look into

the pay discrepancy and get back to me, or words to that effect. But, Mr.

Totche never did follow up with me.

J.A. 333. The district court struck these paragraphs as inadmissible hearsay. O’Brien,

2007 WL 4510246, at *5-6. The district court pointed to Prater’s testimony, as

characterized by the district court, that, “without his ledger, he does not know whether

he worked overtime in any given week, and he has no recollection of when he worked

on any given day.” Id. at *5 (citing Prater Dep. 83, 98). The district court also pointed

to Prater’s testimony that, as the district court put it, “he cannot identify any overtime

for which he claims he was not paid without referencing the ledger.” Id. Thus, the

district court concluded, Prater’s testimony that he was underpaid “is based entirely on

his recollection of the information contained in the personal ledger. In 2003, however,

Plaintiff Prater threw away his ledger and pay records. Consequently, Defendants argue

that any testimony about the information stated in the ledger amounts to inadmissible

hearsay.” Id. (citations omitted). 

The district court agreed with defendants’ argument that testimony about the

contents of the ledger—beyond the fact that Prater kept a ledger—is inadmissible

hearsay and should be stricken. “[T]he Court can consider the statements to show that

Plaintiff Prater created a ledger. The Court, however, will disregard Plaintiff Prater’s

attestations regarding the contents of the ledger.” Id. at *6. 
Nos. 07-4553; 08-3184 O’Brien, et al. v. Ed Donnelly

Enterprises, et al.

Page 43

The district court erred when it disregarded these paragraphs of Prater’s affidavit.

First, paragraphs 6 and 9 and most of paragraph 8 in Prater’s affidavit do not discuss the

ledger. Second, the statements in the affidavit are not hearsay. As plaintiffs argue, 

Prater’s testimony merely describes the actions he personally took in the

past. . . . Prater’s affidavit properly describes that he personally wrote

down the hours he worked in a ledger because he believed Appellees

were shorting him hours and wages in his paychecks. Prater’s testimony

regarding his use of the ledger, which itself is not in evidence because

Prater later misplaced it, is not an out of court statement made by

someone other than the declarant that is offered for the truth of the matter

asserted.

Appellants’ Br. 37-38 (citation omitted; emphasis in the original). The affidavit does not

purport to introduce the contents of the ledger as evidence. Rather, it shows that Prater

kept a ledger (a fact the district court said it could consider; see supra), that he “noticed”

at least four times that the ledger diverged from his paychecks as to the number of hours

worked, and that, “[a]s a result,” he complained to Chad Totche. His affidavit provides

a foundation for why Prater believes he was cheated by defendants; it might also be used

to corroborate or dispute any testimony by Totche. Though the ledger’s contents

themselves may be inadmissible (for example, to prove that the ledger actually diverged

from Prater’s paychecks), what Prater remembers he noticed in the ledger is admissible

for the purposes plaintiffs offer this portion of the affidavit.

Thus, the district court swept too broadly when it declined to consider Prater’s

“attestations regarding the contents of the ledger.” O’Brien, 2007 WL 4510246, at *6

(emphasis added).

b. Affidavit ¶¶ 10-13

Paragraphs 10-13 of the Prater affidavit read as follows:

10. As an opening shift crew member, I routinely reported to work for

Defendants at the North store at 4:00 a.m.

11. When I reported to work at 4:00 a.m., I often times had to wait for

an opening shift manger [sic] - including Chad Totche, Angela Tall and

David Clark - to arrive at the North store to open the restaurant.
Nos. 07-4553; 08-3184 O’Brien, et al. v. Ed Donnelly

Enterprises, et al.

Page 44

12. Once an opening shift manager had arrived at the North store, I

would begin working right away without clocking in because the opening

shift managers told me they would clock me in at 4:00 a.m., which was

the time I arrived at the North store.

13. In this lawsuit, Defendants produced some of my timekeeping

records relating to showing the times that restaurant managers clocked

me in on Defendants’ computer system. However, my beginning work

times, as entered by the restaurant managers on Defendants’ computer

and reflected on Defendants’ timekeeping records, are later than the time

I usually reported to work for Defendants, which was 4:00 a.m.

J.A. 333-34. 

In evaluating these paragraphs, the district court was mindful of Prater’s previous

deposition testimony—most importantly, it seems, the following colloquy:

Q. Are you telling me, though, that every time that you worked it

was in accordance with the schedule at the restaurant?

A. Yes.

J.A. 257 (Prater Dep. 73). 

Based on this deposition testimony, the district court ruled that paragraphs 10-13

of the affidavit violated the Best Evidence Rule, which states that “[t]o prove the content

of a writing . . . , the original writing . . . is required, except as otherwise provided in

these rules or by Act of Congress.” Fed. R. Evid. 1002. The court acknowledged that

plaintiffs correctly pointed out that Rule 1002 does not apply when the proponent of the

evidence is not seeking to prove the contents of the writing. The court then

characterized plaintiffs’ argument as to Rule 1002’s application to the instant case:

Plaintiffs conclude that the Rule is inapplicable here because Mr. Prater’s

testimony is not offered to prove the contents of the schedule, but instead

is offered to establish his actual hours of work, and to demonstrate that

Defendants’ timekeeping records are inaccurate. In other words,

Plaintiffs assert that the Prater Affidavit is not disputing the content or

accuracy of the schedules, but instead it attests to when Plaintiff Prater

reported to work.

O’Brien, 2007 WL 4510246, at *7 (citation omitted). The court rejected this argument:
Nos. 07-4553; 08-3184 O’Brien, et al. v. Ed Donnelly

Enterprises, et al.

Page 45

Plaintiffs’ argument, however, ignores Plaintiff Prater’s prior deposition

testimony in which he testified that he always worked in accordance with

the written schedules. If Plaintiff Prater always reported to work in

accordance with the written schedules, the best evidence of when

Plaintiff Prater reported to work on any given day is in the written

schedule for the day. Consequently, Fed. R. Evid. 1002 operates to bar

testimony that Plaintiff Prater's scheduled start time was anything other

than what is presented in the written schedules.

Id. (citation omitted).

Alternatively, the court ruled that the testimony was barred as inconsistent with

Prater’s prior deposition testimony: 

Plaintiff Prater testified that he always reported to work in accordance

with the written schedules. The written schedules reflect that Plaintiff

Prater was never scheduled to begin work at 4:00 am during his first

period of employment with Defendants. Accordingly, Plaintiff Prater's

attestations that he routinely reported to work at 4:00 a.m. are

inadmissible contradictions of his prior deposition testimony.

Id. (citation omitted).

The district court’s decision to disregard these paragraphs in the affidavit was

error. First, these averments themselves were not offered to “prove the content of a

writing.” By its terms, that is the only time that Rule 1002 applies. The district court

concluded that the averments in the affidavit were deficient because they were not “the

best evidence of when Plaintiff Prater reported to work on any given day.” Id.

(emphasis added). The best evidence to prove that contention may be the schedules, but

requiring the best evidence available (here, apparently, the schedules) to prove

something besides the “content” of the schedules is not what the Best Evidence Rule

demands. See Allstate Ins. Co. v. Swann, 27 F.3d 1539, 1543 (11th Cir. 1994) (“Rule

1002 requires production of an original document only when the proponent of the

evidence seeks to prove the content of the writing. It does not, however, require

production of a document simply because the document contains facts that are also

testified to by a witness.”) (citations and internal quotation marks omitted); see also

Simas v. First Citizens’ Fed. Credit Union, 170 F.3d 37, 51 (1st Cir. 1999) (quoting
Nos. 07-4553; 08-3184 O’Brien, et al. v. Ed Donnelly

Enterprises, et al.

Page 46

Allstate for the proposition that “there is no general rule that proof of a fact will be

excluded unless its proponent furnishes the best evidence in his power” and reasoning

that a plaintiff “can prove he filed a loan application simply through his own trial

testimony” and does not need to furnish the application). 

Second, this affidavit does not contradict the deposition when the deposition is

construed in the light most favorable to plaintiffs, as is required at the summary

judgment stage. The questions immediately preceding the colloquy quoted above

concerned any “days” that Prater was scheduled to work but did not work, and vice

versa. Thus, when read in context, it seems Prater’s statement that “every time” that

Prater worked he worked in accordance with the schedule was only testimony as to the

days he worked. By contrast, these paragraphs in the affidavit concern the hours that

Prater alleges he worked on the days he worked. Thus, there is no contradiction —

especially not one that would call for Prater’s affidavit to be disregarded. The district

court was in error when it ruled otherwise.

c. Affidavit ¶¶ 15-16

The court granted defendants’ motion to strike paragraphs 15 and 16 of the Prater

affidavit as being inconsistent with prior deposition testimony. The affidavit states:

15. On approximately nine occasions, I arrived for work at the North

store in the morning and was instructed by one of the North store

managers that I was needed to work at the South store because it was

short staffed. Then, on thee [sic] occasions, I traveled to the South store

to work a shift as a grill cook. But, I did not clock in at the South store

to record my hours of work.

16. Instead, I was told by the South store managers that one of the

North store managers would clock me in and out at the North store.

However, none of the records Defendants produced in this lawsuit show

any of my work hours at the South store, which averaged ten hours per

shift.

J.A. 334. The district court ruled that these paragraphs conflict with Prater’s deposition

testimony — that, as the district court put it, Prater “admitted that he has no independent

recollection of when he worked or of how much time he worked on any given day. He
Nos. 07-4553; 08-3184 O’Brien, et al. v. Ed Donnelly

Enterprises, et al.

Page 47

11Such a reading of the question is far from charitable to defendants, but on summary judgment

such a reading is appropriate, as the testimony must be reasonably read in the best light for the nonmovant.

also admitted that he has no knowledge of ever having worked off the clock at the South

store. Finally, Plaintiff Prater testified that he never worked ten hours without pay[.]”

O’Brien, 2007 WL 4510246, at *8 (citations omitted).

The district court erred. Prater at his deposition answered “Well, yeah” to the

question about whether it would be “very hard sitting here today [i.e., at the deposition]

for me [i.e., opposing counsel] to ask you particular days of the year back in 2002 how

many hours you worked or when you showed up that day, wouldn’t it?” J.A. 261 (Prater

Dep. 83). Thus, the question was whether it would be “very hard” to “ask” such a

question. (Emphasis added.)11 This question followed a query to which Prater

acknowledged he did not know the answer and that it would be “hard to remember,” but

that query was worded as follows: “And other than that generalized recollection, if I

asked you a particular week, like, the first week in November of 2002, do you know

whether you worked overtime that week from your memory?” Id. (emphasis added). 

Later in the deposition, the following colloquy occurred:

Q. And for any of the days that we would go through here in these

time punch records, you don’t have any independent recollection of when

you worked on those days, do you?

A. No. Not right offhand, no.

J.A. 262 (Prater Dep. 98). First, we note the qualification that Prater does not have any

such “independent recollection” “right offhand.” This is not a clear admission that

Prater has no independent recollection. Second, it is not clear what an “independent

recollection” is or why a recollection of events of several years ago that is not

“independent” would be insufficient. Third, and probably most importantly, the question

involves a potential day-by-day inquiry — for each date, Prater would be asked when

he worked — but the paragraphs of Prater’s affidavit in question do not allege any

specific dates. Indeed, the affidavit implicitly acknowledges that Prater does not know
Nos. 07-4553; 08-3184 O’Brien, et al. v. Ed Donnelly

Enterprises, et al.

Page 48

the specific dates, as it states that Prater arrived at the North store and was instructed to

go to the South store on “approximately nine occasions.” (Emphasis added.) 

Finally, Prater disputed an exhibit shown to him at his deposition that said he

worked 10 hours off the clock on September 18, 2002:

Q. Do you have any understanding of why someone would say you

worked 10 hours on that day off the clock?

A. No, I wasn’t working no 10 hours off the clock without getting

paid for it. Maybe 5, 10, even 15 minutes, but not 10 hours.

J.A. 269-70 (Prater Dep. 107-08). After a brief discussion off the record, Prater then

testified as follows:

A. That’s why I ain’t got no records. That might be when I worked

at south store.

Q. What do you mean, when you worked at the south store?

A. There was times I went down to the south to work for them down

there. When I went in they needed – they would call and said they

needed somebody down there, so I would go down there and work. And

whoever the manager was in charge would say that they would punch us

– punch me in, I – because I would ask them if I would wait until I got

down there and punch in or what. And they say, no, we’ll punch you in

here. So, you know, I went on down and worked.

J.A. 270 (Prater Dep. 108). Opposing counsel accused Prater of changing his testimony,

but Prater explained:

A. Well, because I forgot about me going down to the south store

and working.

Q. Do you know whether or not you were punched in when you went

to the south store to work?

A. No, I do not.

Q. So you don’t know of having ever worked 10 hours off the clock

at the south store, do you?

A. That’s right. I don’t mind giving them a few minutes, but ten

hours, not [sic].

J.A. 271 (Prater Dep. 109). 
Nos. 07-4553; 08-3184 O’Brien, et al. v. Ed Donnelly

Enterprises, et al.

Page 49

12This court understands a “pedagogical device” to be:

an illustrative aid such as information presented on a chalkboard, flip chart, or drawing,

and the like, that (1) is used to summarize or illustrate evidence, such as documents,

recordings, or trial testimony, that has been admitted in evidence; (2) is itself not

admitted into evidence; and (3) may reflect to some extent, through captions or other

organizational devices or descriptions, the inferences and conclusions drawn from the

underlying evidence by the summary’s proponent. This type of exhibit is “‘more akin

to argument than evidence’ since [it] organize[s] the jury’s examination of testimony

and documents already admitted in evidence.” Trial courts have discretionary authority

to permit counsel to employ such pedagogical-device “summaries” to clarify and

simplify complex testimony or other information and evidence or to assist counsel in the

Here, Prater is testifying in the present tense: as of his deposition, he does not

know whether someone else punched him in when he went to the South store and

whether he worked off the clock at the South store for ten hours. Such testimony is

admittedly not helpful for plaintiffs’ case. But the affidavit does not contradict this

testimony — paragraph 16 of the affidavit only says that “none of the records

Defendants produced in this lawsuit” show any of his work hours at the South store. In

other words, Prater may not personally know whether he was punched in, but he could

still discern whether the records produced by the defendants reflect the hours that he

asserts he worked. Moreover, paragraphs 15 and 16 are consistent with Prater’s

deposition testimony explaining needing to go down to the South store, that he would

not punch in himself, and that he was told that a North store manager would clock him

in at the North store. The district court’s characterization that “Prater alleges in his

affidavit that he is claiming he worked ten-hour days without pay at the South store”

(O’Brien, 2007 WL 4510246, at *8 (emphasis added; citing paragraph 16 of affidavit))

is technically erroneous. 

For all these reasons, the district court erred when it struck these paragraphs in

the Prater affidavit.

d. Affidavit ¶ 14; Exhibits 6 and 7

The district court disregarded plaintiffs’ exhibits 6 and 7, and thus paragraph 14

of Prater’s affidavit which was based on exhibit 7, because the exhibits do not qualify

as “pedagogical devices” as defined by United States v. Bray, 139 F.3d 1104, 1111 (6th

Cir. 1998),12 which is what the plaintiffs claimed they are.13 The court found that the
Nos. 07-4553; 08-3184 O’Brien, et al. v. Ed Donnelly

Enterprises, et al.

Page 50

presentation of argument to the court or jury. 

Bray, 139 F.3d at 1111 (internal citations omitted).

13Although plaintiffs initially state in their brief that their “damage calculations are proper

evidence under Fed. R. Civ. P. 56(c),” they then go on to argue that their “damage calculations are not

evidence themselves, but are the consolidation of evidence adduced from relevant and admissible evidence

already presented to the district court in this case. Therefore, Appellants’ damage calculations are proper

pedagogical devices that should have been considered by the district court.” Appellants’ Br. 42, 45

(emphasis added).

14Note that this discussion is restricted to a court’s consideration of a motion for summary

judgment and other proceedings in which there is no jury present to consider evidence. A district court

does not have license to keep any pedagogical device it wishes from a jury’s eyes. Cf. Bray, 139 F.3d at

1111 (noting that trial courts have “discretionary authority” to permit the use of such devices).

Furthermore, note the obvious limit that a district court does not have license to disregard whatever

evidence it wants to. We are only discussing “pedagogical devices” characterized as such by the party that

brings them before the court.

portions of the exhibits that were based on portions of plaintiffs’ affidavits that the court

already found to be inadmissible were themselves inadmissible. The court also observed

that “the exhibits are not accurate representations of the evidence.” O’Brien, 2007 WL

4510246, at *10. 

Since these exhibits are pedagogical devices and are not themselves evidence, it

does not matter whether the district court considered them or not. Any decision by a

district court to strike or otherwise not consider a “pedagogical device” at the summaryjudgment stage would be, at most, harmless error. A pedagogical device is not evidence.

On a motion for summary judgment, such a device is offered merely to “aid” the court.

If a district judge — for whatever reason — believes that a pedagogical device would

not help him or her to rule on a motion for summary judgment, such a device is, by

definition, useless.14 

e. Summary judgment

Plaintiffs articulate two theories of recovery: that plaintiffs’ time records were

changed to their detriment and that plaintiffs worked “off the clock.” The first theory

fails as to Prater, and the district court was not in error when it entered summary

judgment for defendants as to that claim. Prater has testified that managers would

“fix[]” the time-in and time-out when necessary, but he was not aware of any such

changes being inaccurate. See J.A. 256 (Prater Dep. 67); see also J.A. 268 (Prater Dep.
Nos. 07-4553; 08-3184 O’Brien, et al. v. Ed Donnelly

Enterprises, et al.

Page 51

106). He also testified that he has no knowledge of anyone intentionally altering his

hourly time records or anyone else’s hourly time records. J.A. 274 (Prater Dep. 141);

see also J.A. 258 (Prater Dep. 77). As stated, though, we vacate the district court’s grant

of summary judgment, because the spoliation issue remains open for the district court

to consider on remand.

However, given the evidentiary rulings above, the district court erred when it

granted defendants’ motion for summary judgment as to Prater’s “off the clock” claim.

We reverse and remand.

4. Burden of proof

Plaintiffs raise another argument on appeal, which the district court did not

discuss in its opinion, but which pertains to our decision to affirm the grant of summary

judgment on some of plaintiffs’ claims. To begin with, a “FLSA plaintiff must prove by

a preponderance of evidence that he or she ‘performed work for which he [or she] was

not properly compensated.’” Myers v. Copper Cellar Corp., 192 F.3d 546, 551 (6th Cir.

1999) (citing Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 686–87 (1946),

superseded by statute on other grounds as stated in Carter v. Panama Canal Co., 463

F.2d 1289, 1293 (D.C. Cir. 1972)). To determine the extent of damages, the plaintiff can

“prove his or her ‘under-compensation’ damages through discovery and analysis of the

employer's code-mandated records. However, if the employer kept inaccurate or

inadequate records, the plaintiff's burden of proof is relaxed, and, upon satisfaction of

that relaxed burden, the onus shifts to the employer to negate the employee's inferential

damage estimate.” Id. (emphasis added) (citing Mt. Clemens Pottery, 328 U.S. at

687–88). 

Plaintiffs imply that their claims should not have been dismissed on summary

judgment because they only needed to satisfy this lesser initial burden, as the defendants’

records were inaccurate and inadequate. However, Mt. Clemens Pottery and its progeny

do not lessen the standard of proof for showing that a FLSA violation occurred. Rather,

Mt. Clemens Pottery gives a FLSA plaintiff an easier way to show what his or her
Nos. 07-4553; 08-3184 O’Brien, et al. v. Ed Donnelly

Enterprises, et al.

Page 52

damages are. When an employer keeps inaccurate or inadequate records, for a FLSA

plaintiff to show what his or her damages were, a FLSA plaintiff does not need to prove

every minute of uncompensated work. Rather, she can estimate her damages, shifting

the burden to the employer. If the employer cannot negate the estimate, then the “court

may award damages to the employee, even though the result be only approximate.” Mt.

Clemens Pottery, 328 U.S. at 688. In short, Mt. Clemens Pottery does not help plaintiffs

show that there was a violation under the FLSA. It would only allow them to prove

damages by way of estimate, if they had already established liability. Plaintiffs’ failure

to show a genuine issue of material fact as to the time-sheet–alterations claims required

the district court’s entry of summary judgment against them, though as discussed, the

grant of summary judgment is vacated for the district court to revisit the spoliation issue.

V. Conclusion

We reverse the district court’s rulings with regard to the affidavits presented by

the lead plaintiffs on summary judgment. And we vacate the entry of summary judgment

against plaintiffs on the time-sheet–alteration claims, because we have also remanded

for the district court’s consideration whether sanctions for spoliation are warranted. This

may alter the merits of the summary-judgment analysis of the lead plaintiffs’ timesheet–alteration claims. 

The district court’s decertification of the collective action in O’Brien is affirmed.

Regarding Dellarussiani, the entry of judgment in plaintiffs’ favor due to mootness, as

well as the entry of summary judgment in defendants’ favor are affirmed, with the

exception that the issue of the attorney fees awarded in Dellarussiani is remanded to the

district court.

Accordingly, the district court is AFFIRMED IN PART and REVERSED IN

PART. Defendants’ motion to dismiss the Dellarussiani plaintiffs from the O’Brien

appeal is GRANTED IN PART, but DENIED IN PART as to the Prompt Pay Act and

common-law claims. These cases are REMANDED for further proceedings consistent

with this opinion.
Nos. 07-4553; 08-3184 O’Brien, et al. v. Ed Donnelly

Enterprises, et al.

Page 53

____________________________

CONCURRING IN PART

____________________________

WHITE, Circuit Judge, concurring in part. I concur in the majority opinion

except with regard to its determination that the Dellarussiani plaintiffs’ common-law

claims in O’Brien are necessarily barred by res judicata. I would leave such a

determination to the district court on remand.