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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

John Radford,

Plaintiff,

v. 

Berg Homes LLC, et al.,

Defendants.

No. CV-18-00287-PHX-DWL

ORDER 

Pending before the Court is Plaintiff John Radford’s motion for summary judgment. 

(Doc. 42.) Radford’s amended complaint asserts that Berg Homes, LLC (“Berg”) and 

Connie Schwichtenberg (collectively, “Defendants”) failed to pay him overtime in 

accordance with the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”). For the 

following reasons, the motion will be denied.

BACKGROUND

I. Factual Background

In April 2009, Radford began working for Berg as a live-in caregiver. (Doc. 1 ¶ 6; 

Doc. 43 ¶ 14.) Berg is an assisted living facility and Schwichtenberg is the sole proprietor 

of the business and member of the LLC. (Doc. 43 ¶¶ 3, 10; Doc. 47 at 1-2 ¶¶ 3, 10.)

In 2013, Radford was promoted to the position of Program Manager. (Doc. 47 at 4-

5 ¶ 1.) He served in that position between January 26, 2015 and December 26, 2017, which 

is the time period during which he alleges Defendants failed to pay him overtime. (Doc. 

42 at 3.)

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Beyond this basic factual foundation, the parties largely disagree. They disagree 

about Radford’s job responsibilities. (Compare Doc. 10 ¶¶ 19-31 [amended complaint, 

describing various tasks and decisions that Radford was not authorized to do or make] with

Doc. 13 ¶¶ 19-31 [answer, denying all such allegations] and Doc. 46 at 8 [stating that 

Radford’s primary duties were managerial].) They also disagree about Radford’s regularly 

scheduled hours. (Compare Doc. 43 ¶ 17 [Radford’s hours were 8 a.m. to 4 p.m., Monday 

through Friday] with Doc. 47 at 2 ¶ 17 [Radford’s hours varied].) And they disagree about 

Radford’s salary. (Compare Doc. 43 ¶ 16 [$25,000] with Doc. 47 at 2 ¶ 16 [$41,600].) On 

top of all of this, Radford was never deposed in this case (Doc. 46 at 5 n.5), so the summary 

judgment record is particularly sparse. 

II. Procedural Background

On January 26, 2018, Radford initiated this lawsuit by filing a complaint. (Doc. 1.) 

On February 7, 2018, Radford filed an amended complaint. (Doc. 10.)

On March 16, 2018, Defendants filed an answer. (Doc. 13.)1

On August 23, 2019, Radford filed a motion for summary judgment (Doc. 42) and 

an accompanying statement of facts (Doc. 43).

On October 1, 2019, Defendants filed a response to the motion for summary 

judgment (Doc. 46) and a controverting and separate statement of facts (Doc. 47).

Radford did not file a reply.

DISCUSSION

I. Standard Of Review

A party moving for summary judgment “bears the initial responsibility of informing 

the district court of the basis for its motion, and identifying those portions of ‘the pleadings, 

depositions, answers to interrogatories, and admissions on file, together with the affidavits, 

if any,’ which it believes demonstrate the absence of a genuine issue of material fact.”

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “In order to carry its burden of 

production, the moving party must either produce evidence negating an essential element 

1 This case was assigned to the undersigned Judge on October 31, 2018. (Doc. 29.)

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of the nonmoving party's claim or defense or show that the nonmoving party does not have 

enough evidence of an essential element to carry its ultimate burden of persuasion at trial.” 

Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). “If . . . 

[the] moving party carries its burden of production, the nonmoving party must produce 

evidence to support its claim or defense.” Id. at 1103.

“Summary judgment is appropriate when ‘there is no genuine dispute as to any 

material fact and the movant is entitled to judgment as a matter of law.’” Rookaird v. BNSF 

Ry. Co., 908 F.3d 451, 459 (9th Cir. 2018) (quoting Fed. R. Civ. P. 56(a)). “A genuine 

dispute of material fact exists if ‘there is sufficient evidence favoring the nonmoving party 

for a jury to return a verdict for that party.’” United States v. JP Morgan Chase Bank 

Account No. Ending 8215 in Name of Ladislao V. Samaniego, VL: $ 446,377.36, 835 F.3d 

1159, 1162 (9th Cir. 2016) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-

50 (1986)). The court “must view the evidence in the light most favorable to the 

nonmoving party and draw all reasonable inference in the nonmoving party's favor.” 

Rookaird, 908 F.3d at 459. Summary judgment is also appropriate against a party who 

“fails to make a showing sufficient to establish the existence of an element essential to that 

party's case, and on which that party will bear the burden of proof at trial.” Celotex, 477 

U.S. at 322.

II. Merits

A. Prima Facie Case

“An employee seeking to recover unpaid minimum wages or overtime under the 

FLSA has the burden of proving that he performed work for which he was not properly 

compensated.” Brock v. Seto, 790 F.2d 1446, 1447-48 (9th Cir. 1986). Courts in this 

district have varied when enumerating the elements such a plaintiff must establish. See, 

e.g., Harrison v. Honeywell Int’l, 2019 WL 4138571, *4 (D. Ariz. 2019); Quinonez v. 

Reliable Auto Glass, LLC, 2012 WL 2848426, *2 (D. Ariz. 2012); Baker v. D.A.R.A. II, 

Inc., 2008 WL 191995, *7 (D. Ariz. 2008). Common to each iteration, however, is that the 

plaintiff must prove he was not properly compensated. Id. The FLSA requires employers 

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to pay overtime at a rate of one-and-one-half times a non-exempt employee’s regular rate 

for hours worked in excess of 40 per week. 29 U.S.C. § 207(a)(1).

Here, even assuming that Radford is entitled to overtime pay under the FLSA—an 

issue that is addressed in Part B below—he has failed to establish the absence of a genuine 

issue of material fact as to whether he performed work for which he was not properly 

compensated. Radford appears to have calculated his base and overtime rate of pay by 

dividing his purported annual salary of $25,000 (based on a job description advertising an 

opening for Program Manager) over 50 40-hour workweeks (based on what looks to be a 

different job posting) to arrive at a base hourly rate of $12.50 and an overtime rate of 

$18.75. (Doc. 42 at 5; Doc. 43-4 at 2, 3.) Then, he multiplied the number of hours he 

purportedly worked in excess of 40 hours per week2 by $18.75 to reach the sum 

($37,058.44) he contends he is owed. (Doc. 42 at 6.) 

Defendants dispute the starting point for those calculations, stating that Radford’s 

annual salary (before bonus) was actually $41,600. (Doc. 46 at 5; Doc. 47 at 2 ¶ 16; Doc. 

47 at 9 ¶ 20; Doc. 47-1 at 7-9 [W-2 forms].) Defendants also contend that Radford “made 

his own schedule, which varied week to week,” and “was never paid hourly.” (Doc. 46 at 

13; Doc. 47 at 2 ¶ 17; Doc. 47 at 5 ¶ 2.) Finally, Defendants note that although Radford’s 

theory in this case is that he received $25,000 each year in 2015, 2016, and 2017 and that 

he should have received an additional $37,058.44 in unpaid overtime over that period, for 

a total of just over $112,058, his W-2 forms reflect that he “actually earned $132,887.50 

from 2015-2017. Therefore, [Radford] was paid more than he now claims he is owed . . . 

.” (Doc. 46 at 11.)

In sum, the parties dispute how much Radford received as a salary, his base and 

overtime rate of pay, and the nature of his schedule. As another court in this district put it, 

when denying summary judgment in a case in which the “parties dispute[d] both the 

2 One of the employment records upon which Radford relies to calculate his overtime 

hours states that he earned a “gross amount paid” of $41,700 in 2015. (Doc. 43-5 at 2.) 

This is inconsistent with Radford’s contention that he only earned an annual salary of 

$25,000 and, if anything, tends to support Defendants’ contention that his annual salary 

was $41,600.

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number of hours Plaintiff worked and the amount that she was paid . . . [i]t is hard to 

imagine disputes of fact more genuine and material than these.” Lopez v. JJJRT Inc., 2017 

WL 4769528, *2 (D. Ariz. 2017). These factual disputes preclude the Court from finding 

as a matter of law that Radford performed work for which he was not properly 

compensated, so summary judgment must be denied. 

B. Administrative Exemption

The parties’ briefing also touches upon Defendants’ affirmative defense that 

Radford fell within the FLSA’s administrative exemption. Radford argues in his motion 

that Defendants cannot invoke this exemption because they failed to properly raise it in 

their answer. (Doc. 42 at 7-9.) In response, Defendants contend they properly raised this 

affirmative defense earlier in the proceedings. (Doc. 46 at 9-11.)

The administrative exemption to the FLSA is an affirmative defense. Jones v. Giles, 

741 F.2d 245, 248 (9th Cir. 1984). In the Ninth Circuit, affirmative defenses ordinarily 

must be asserted in an answer but can be raised “for the first time in a motion for summary 

judgment . . . if the delay does not prejudice the plaintiff.” Hung Lam v. City of San Jose, 

869 F.3d 1077, 1087 (9th Cir. 2017) (citation and internal quotation marks omitted). 

Here, Defendants’ answer specifically denied Radford’s assertion that he was a nonexempt employee. (Doc. 10 ¶ 18 [amended complaint: “From April 2009 until December 

31, 2016, Plaintiff was a non-exempt employee . . . .”]; Doc. 13 ¶ 18 [answer: “Defendants 

deny Plaintiff’s paragraph 18”].) Defendants also stated, in the portion of the answer 

entitled “Affirmative Defenses,” that one of their defenses was “exemption.” (Doc. 13 ¶ 

50(p).) Although Radford argues this portion of the answer was too vague because it didn’t 

specifically identify which exemption Defendants were seeking to invoke (Doc. 42 at 8), 

Defendants explained in the parties’ Joint Case Management Report, filed less than two 

months after they filed their answer, that their position was that Radford was a “salaried 

employee and exempt from the overtime regulations of the Fair Labor Standards Act 

(FLSA). The FLSA provides that its overtime requirements do not apply with respect to 

an employee employed in an administrative capacity . . . 29 U.S.C. § 213(a)(1).” (Doc. 23 

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at 3.) Thus, Defendants will not be precluded from raising the administrative exemption 

as an affirmative defense.

Because the applicability of the administrative exemption is an affirmative defense, 

Defendants would bear the burden of proving it at trial.

3 Thus, had Radford succeeded in 

proving an entitlement to summary judgment on the elements of his FLSA claim (which 

he has not, see Part A above), Defendants arguably4 would have been required in their 

response to Radford’s summary judgment motion to produce evidence demonstrating the 

exemption’s applicability. Defendants did so here (Doc. 46 at 7-9) and Radford did not 

bother to file a reply. This provides an additional reason why Radford’s summary 

judgment motion must be denied.

C. Liquidated Damages And Three-Year Statute Of Limitations

Radford argues that Defendants willfully violated the FLSA, entitling him to a threeyear statute of limitations and liquidated damages in an amount equal to his unpaid 

3 See McKeen-Chaplin v. Provident Savings Bank, FSB, 862 F.3d 847, 850 (9th Cir. 

2017) (an employer claiming that an employee falls within an FLSA exemption bears the 

burden of proving the employee is exempt).

4 There appears to be a split of authority on this issue that the Ninth Circuit has not 

addressed. See, e.g., United Cent. Bank v. Wells St. Apartments, LLC, 957 F. Supp. 2d 978, 

987 (E.D. Wisc. 2013) (“[Some] cases support[] the proposition that in order to obtain 

summary judgment on a claim, a plaintiff must in its opening brief demonstrate the absence 

of a factual dispute concerning any affirmative defenses to the claim that the defendant 

may have listed in its answer. However, to the extent that these cases could be read to 

support such a rule, I will not follow them. Instead, I conclude that a rule applied by other 

courts—the rule that the failure to raise an affirmative defense in opposition to a motion 

for summary judgment constitutes an abandonment of the defense—is the better rule.”); 

Office of Thrift Supervision v. Paul, 985 F. Supp. 1465, 1470 (S.D. Fla. 1997) (“On a 

plaintiff’s motion for summary judgment, the defendant bears the initial burden of showing 

that the affirmative defense is applicable. . . . Thus, summary judgment is appropriate 

where the defendant fails to come forward with evidence sufficient to . . . support an 

affirmative defense.”). But see Stillman v. Travelers Ins. Co., 88 F.3d 911, 913 (11th Cir. 

1996) (“Stillman’s motion for summary judgment did not address [the affirmative] 

defenses raised by Charter Oak, nor did it offer any evidence of undisputed facts as to these 

defenses . . . . Stillman’s argument that a general request for summary judgment on all 

issues in a case may be granted when no opposing evidentiary matter is presented is 

unsupported in the law.”); United States v. Innovative BioDefense, Inc., 2019 WL 7195332, 

*8 (C.D. Cal. 2019) (“[T]o prevail at summary judgment, Plaintiff has the burden of 

point[ing] out to the Court that there is an absence of evidence to support the non-moving 

party’s affirmative defense.”) (citation and internal quotation marks omitted); Navistar 

Int’l Transp. Corp. v. Freightliner Corp., 1998 WL 786388, *1-2 (N.D. Ill. 1998) (a 

movant at summary judgment has the burden of showing an absence of a genuine issue of 

material fact on a non-movant’s affirmative defense and may not prevail by “simply 

ignoring [a non-movant’s] defenses”).

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overtime wages. (Doc. 42 at 7.) Defendants argue that any FLSA violation was reasonable 

and committed in subjective good faith, so liquidated damages and an extended statute of 

limitations are inappropriate. (Doc. 46 at 12.) 

Under the FLSA, the extended statute of limitations and liquidated damages are 

distinct issues with different burdens of proof. For a three-year statute of limitations to 

apply, the employee must show the employer “knew or showed reckless disregard for the 

matter of whether its conduct was prohibited by the statute.” McLaughlin v. Richland Shoe 

Co., 486 U.S. 128, 133 (1988). In contrast, liquidated damages are unavailable if the 

“employer shows that it acted in subjective ‘good faith’ and had objectively ‘reasonable 

grounds’ for believing that its conduct did not violate the FLSA.” Chao v. A-One Med. 

Servs., Inc., 346 F.3d 908, 920 (9th Cir. 2003). 

Radford has not demonstrated an entitlement to summary judgment on either issue. 

The sole evidence Radford offers as proof of Defendants’ willfulness is that Berg was once 

sued for violating the FLSA. (Doc. 42 at 7.) At best, this is proof Berg was aware the 

FLSA exists. It fails to foreclose the possibility that Defendants—as Schwichtenberg’s 

affidavit provides—carefully considered the law and reasonably concluded, with the advice 

of counsel, that the classification of Radford as an exempt employee was legally correct. 

(Doc. 46 at 12; Doc. 47-1 ¶ 14 [“No judgment has ever been entered against Berg . . . for 

any FLSA violation. A prior case that made such allegations was voluntarily dismissed.”].) 

***

Accordingly, IT IS ORDERED that Radford’s motion for summary judgment 

(Doc. 42) is denied.

Dated this 10th day of February, 2020.

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