IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

CORNELIUS SMITH, et al., )

 )

Plaintiffs, )

 )

v. ) CIVIL ACTION 14-0107-WS-B

 )

WERNER ENTERPRISES, INC., ) 

 )

Defendant. )

 ORDER

This matter is before the Court on the parties’ motions for partial summary 

judgment. (Docs. 86, 93). The parties have filed briefs and evidentiary materials 

in support of their respective positions, (Docs. 87-89, 94-95, 99-100, 107-08), and 

the motions are ripe for resolution. This order addresses only the issue, made a 

basis of the defendant’s motion, of the applicable workweek. After careful 

consideration, the Court concludes that the defendant’s motion as to this issue is 

due to be denied.

BACKGROUND

This is the second FLSA action brought by plaintiffs employed by the 

defendant to provide certain trucking services to a non-party (“Boise”) that 

operates a paper mill in Jackson, Alabama. See Pritchett v. Werner Enterprises, 

Inc., Civil Action No. 12-0182-WS-C. In Pritchett, as here, the parties disagreed 

as to the applicable workweek. The plaintiffs claimed a Monday-Sunday 

workweek (resulting in 44 hours of overtime every other workweek on their 

normal work schedule), while the defendant asserted a Friday-Thursday workweek 

(resulting in eight hours of overtime every other workweek). The parties filed 

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competing motions for summary judgment on this issue, which the Court denied 

after finding genuine issues of material fact. (Id., Doc. 105). 

DISCUSSION

Summary judgment should be granted only if “there is no genuine dispute 

as to any material fact and the movant is entitled to judgment as a matter of law.” 

Fed. R. Civ. P. 56(a). The party seeking summary judgment bears “the initial 

burden to show the district court, by reference to materials on file, that there are no 

genuine issues of material fact that should be decided at trial.” Clark v. Coats & 

Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The moving party may meet its 

burden in either of two ways: (1) by “negating an element of the non-moving 

party’s claim”; or (2) by “point[ing] to materials on file that demonstrate that the 

party bearing the burden of proof at trial will not be able to meet that burden.” Id. 

“Even after Celotex it is never enough simply to state that the non-moving party 

cannot meet its burden at trial.” Id.; accord Mullins v. Crowell, 228 F.3d 1305, 

1313 (11th Cir. 2000); Sammons v. Taylor, 967 F.2d 1533, 1538 (11th Cir. 1992). 

“If the party moving for summary judgment fails to discharge the initial 

burden, then the motion must be denied and the court need not consider what, if 

any, showing the non-movant has made.” Fitzpatrick v. City of Atlanta, 2 F.3d 

1112, 1116 (11th Cir. 1993); accord Mullins, 228 F.3d at 1313; Clark, 929 F.2d at 

608. 

“If, however, the movant carries the initial summary judgment burden ..., 

the responsibility then devolves upon the non-movant to show the existence of a 

genuine issue of material fact.” Fitzpatrick, 2 F.3d at 1116. “If the nonmoving 

party fails to make ‘a sufficient showing on an essential element of her case with 

respect to which she has the burden of proof,’ the moving party is entitled to 

summary judgment.” Clark, 929 F.2d at 608 (quoting Celotex Corp. v. Catrett, 

477 U.S. 317 (1986)) (footnote omitted); see also Fed. R. Civ. P. 56(e)(2) (“If a 

party fails to properly support an assertion of fact or fails to properly address 

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another party’s assertion of fact as required by Rule 56(c), the court may ... 

consider the fact undisputed for purposes of the motion ....”).

In deciding a motion for summary judgment, “[t]he evidence, and all 

reasonable inferences, must be viewed in the light most favorable to the 

nonmovant ....” McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 

(11th Cir. 2003).

There is no burden on the Court to identify unreferenced evidence 

supporting a party’s position.1 Accordingly, the Court limits its review to the 

exhibits, and to the specific portions of the exhibits, to which the parties have 

expressly cited. Likewise, “[t]here is no burden upon the district court to distill 

every potential argument that could be made based upon the materials before it on 

summary judgment,” Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 

(11th Cir. 1995), and the Court accordingly limits its review to those arguments the 

parties have expressly advanced. 

“Except as otherwise provided in this section, no employer shall employ 

any of his employees ... for a workweek longer than forty hours unless such 

employee receives compensation for his employment in excess of the hours above 

specified at a rate not less than one and one-half times the regular rate at which he 

is employed.” 29 U.S.C. § 207(a)(1). The FLSA does not define the term 

“workweek.” The Department of Labor (“DOL”) provides the following 

guidance:

An employee’s workweek is a fixed and regularly recurring period 

 1 Fed. R. Civ. P. 56(c)(3) (“The court need consider only the cited materials, but it 

may consider other materials in the record.”); accord Adler v. Wal-Mart Stores, Inc., 144 

F.3d 664, 672 (10th Cir. 1998) (“The district court has discretion to go beyond the 

referenced portions of these [summary judgment] materials, but is not required to do 

so.”). “[A]ppellate judges are not like pigs, hunting for truffles buried in briefs,” and 

“[l]ikewise, district court judges are not required to ferret out delectable facts buried in a 

massive record ....” Chavez v. Secretary, Florida Department of Corrections, 647 F.3d 

1057, 1061 (11th Cir. 2011) (internal quotes omitted). 

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of 168 hours – seven consecutive 24-hour periods. It need not coincide 

with the calendar week but may begin on any day and at any hour of 

the day. For purposes of computing pay due under the [FLSA], a 

single workweek may be established for a plant or other establishment 

as a whole or different workweeks may be established for different 

employees or groups of employees. Once the beginning time of an 

employee’s workweek is established, it remains fixed regardless of 

the schedule of hours worked by him. The beginning of the workweek 

may be changed if the change is intended to be permanent and is not 

designed to evade the overtime requirements of the Act. 

29 C.F.R. § 778.105. 

Neither the FLSA nor the DOL regulations specify how a workweek is to 

be “established.” E.g., Abshire, v. Redland Energy Services, LLC, 695 F.3d 792, 

795 (8th Cir. 2012) (“[T]he FLSA does not prescribe how an employer must 

initially establish its ‘workweek’ for overtime purposes ....”). The defendant 

argues that its workweek is established (or at least reflected) by its employee 

handbook, which provides that “Werner Enterprises’ work week runs from Friday 

to Thursday with pay periods every other Friday.” (Doc. 89-4 at 7). It is 

uncontroverted that every version of the employee handbook in effect during the 

time relevant to this lawsuit contains this provision. (Doc. 89-7). 

The plaintiffs attempt to distance themselves from the handbook, pointing

out that some of them were employed by the defendant as over-the-road drivers 

before being “transferred to the Boise dedicated service.” (Doc. 100 at 16). 

Though their point is obscure, they appear to suggest that the employee handbook 

on which the defendant relies did not apply to over-the-road drivers. This may be 

correct (the plaintiffs cite no evidence to prove the point), but it is also irrelevant, 

because each of the plaintiffs became subject to the employee handbook when 

hired for, or transferred into, service of the defendant’s contract with Boise. (Doc. 

87 at 3-4 & 4 n. 21). 

The plaintiffs lavish most of their energy on an effort to show that, despite 

the employee handbook, the defendant in fact established a Monday-Sunday 

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workweek as to drivers under the Boise contract. They first cite two ancillary 

documents that, correctly, describe the plaintiffs’ work schedule as running 

Monday through Sunday. (Doc. 100 at 14-15). Work schedule and workweek, 

however, are separate concepts, and there is no logical or legal requirement that 

the two be identical. E.g., Johnson v. Heckmann Walter Resources (CVR), Inc., 

758 F.3d 627, 630, 633 (5th Cir. 2014); Abshire, 695 F.3d at 796; Johnson v. 

Phoenix Group, LLC, 2013 WL 1345799 at *3 (S.D. Ohio 2013) (because 

“regulations make clear that the term ‘workweek’ is not necessarily synonymous 

with an employee’s work schedule ..., the mere fact that Plaintiffs worked seven 

consecutive days, in and of itself, is not evidence that those seven consecutive 

workdays constitute the employer’s designated workweek.”). 

The plaintiffs’ next argument, based on the FLSA’s recordkeeping 

requirements, proves more fruitful.

(a) Items required. Every employer shall maintain and preserve 

payroll or other records containing the following information and 

data with respect to each employee to whom section 6 or both sections 

6 and 7(a) of the Act apply:

...

(5) Time of day and day of week on which the employee’s workweek 

begins ...,

...

(7) Hours worked each workday and total hours worked each 

workweek .... 

29 C.F.R. § 516.2(a)(5), (7). The only records produced by the defendant that 

could satisfy these requirements, the plaintiffs say, are daily reports, which do not 

reflect a Friday-Thursday workweek. Instead, these reports, which include an 

employee’s name, his or her start and end time and hours on the clock, appear 

uniformly to begin on Monday and end on the next Sunday. (Doc. 100-4). The 

plaintiffs conclude that, since the defendant is legally obligated to keep records of 

the day and time the workweek begins and of the total hours worked each 

workweek, and since the daily reports are the only records that could satisfy this 

legal requirement, they are evidence that the defendant established a MondayCase 1:14-cv-00107-WS-B Document 118 Filed 07/21/15 Page 5 of 7
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Sunday workweek for them. (Doc. 100 at 15). Even though the Pritchett

plaintiffs raised the same argument, and even though the Court credited that 

argument,2 the defendant ignores it. The Court therefore again credits it. 

Work under the Boise contract began in May 2010. The plaintiffs argue 

that how the defendant paid its drivers under that contract in May 2010 is 

inconsistent with a Friday-Thursday workweek and thus established a different, 

Monday-Sunday workweek, which the defendant has never effectively altered. 

(Doc. 100 at 16-17). The Court agrees that the plaintiffs’ evidence would support 

the inferences for which they contend.3 

The defendant moves to strike the plaintiffs’ evidence, on the grounds it is 

irrelevant since the drivers on whose May 2010 experience they rely are not 

plaintiffs in this lawsuit. (Doc. 105). For reasons explained in the preceding 

paragraph and accompanying note, the defendant is incorrect; the evidence is 

relevant to the workweek the defendant established for the class of employees that 

includes the plaintiffs. 

The defendant’s only other response to the plaintiffs’ evidence is the 

unexplained one-liner that the evidence “does not coincide with a Monday through 

Sunday workweek.” (Doc. 107 at 5). “[D]istrict courts should not be expected to 

construct full blown claims from sentence fragments,”4 and the Court declines to 

guess at how the defendant arrives at its conclusion. In any event, the argument 

misses the point. The defendant has moved for a summary judgment establishing 

 2 (Pritchett, Doc. 105 at 7-8).

3 The employee handbook, with its general designation of a Friday-Thursday 

workweek, precedes the Boise contract. (Doc. 89-7). Thus, the defendant’s conduct in 

May 2010 could have carved out from the handbook’s reach a different workweek for 

drivers under the Boise contract, as Section 778.105 permits. Without some clear 

subsequent action by the defendant to establish a Friday-Thursday workweek for such 

drivers (and the mere continued existence of the handbook could not easily satisfy that 

standard), a Monday-Sunday workweek would remain in effect.

4 T.P. ex rel. T.P. v. Bryan County School District, ___ F.3d ___, 2015 WL 

4038715 at *5 (11th Cir. 2015).

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the plaintiffs’ workweek as Friday-Thursday, (Doc. 86), so merely showing it is 

not Monday-Sunday would fail to show it is instead Friday-Thursday. 

The employee handbook reflects pay periods “every other Friday.” (Doc. 

89-4 at 7). The defendant presents evidence that, consistent with this statement, it 

pays the plaintiffs every other Friday for work in the preceding 14 days. (Doc. 87 

at 7-10). The defendant then quotes Johnson for the proposition that “an 

employer’s set pay period is prima facie evidence of the employer’s established 

workweek.” 2013 WL 1345799 at *3. Even if this is so, “the FLSA does not 

specifically require that a pay period and the workweek for FLSA overtime 

purposes must coincide,” id., and the defendant does not explain how its pay 

period could neutralize the plaintiffs’ evidence that it established a MondaySunday workweek for its drivers fulfilling the Boise contract. 

To the extent the parties make additional arguments in support of their 

respective favored workweeks, they cannot eliminate the genuine issue of material 

fact generated by the matters discussed herein.

CONCLUSION

For the reasons set forth above, the defendant’s motion for summary 

judgment as to the issue of the applicable workweek is denied. The defendant’s 

motion to strike, (Doc. 105), is also denied.

DONE and ORDERED this 21st day of July, 2015.

s/ WILLIAM H. STEELE

CHIEF UNITED STATES DISTRICT JUDGE 

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