March 31, 2016
from the United States District Court for the Northern
District of Indiana, Hammond Division at Lafayette. No.
4:ll-CV-46 - Theresa L. Springmann, Judge.
Manion and Kanne, Circuit Judges, and Pepper, District Judge.
he disregarded an order from his supervisor that he could not
change his schedule to make up for missed time, Plaintiff
James Melton was discharged from his job at the Tippecanoe
County Surveyor's Office. Melton later filed suit against
the County, alleging that during his time there, he had
arrived early and worked through lunch every day and was not
compensated for overtime in violation of the Fair Labor
Standards Act. The district court granted summary judgment to
the County because Melton had not designated sufficient
evidence to find that he worked more than forty hours in a
workweek. We affirm.
worked in the Tippecanoe County Surveyor's Office from
July 6, 2009, through his termination on September 1, 2010.
Regular work hours in the Surveyor's Office were from
8:00 a.m. to 4:30 p.m. with a one-hour floating lunch break.
On May 13, 2010, Melton asked his supervisor in an email if
he could take a class during work hours and "make up the
4 hours a week by only taking l/2hour [sic] lunches and
coming in l/2hour [sic] early on T, R, F." His
supervisor responded by email that Melton could take the
class, but due to concerns about supervision and being able
to keep track of time, he could not make up the missed time.
Instead, he would have to treat the time as unpaid or as
vacation time. Melton acknowledged his supervisor's
answer, responding "[t]hat is fine with me."
his class began the week of August 23, 2010, Melton worked
through lunch on one day and came in early three days that
week. Melton was paid for the additional time worked, but he
was also terminated for failing to follow his
supervisor's order that he could not work extra time.
week while he was employed at the Surveyor's Office,
Melton would certify a timecard reporting the hours he
worked. According to County records, Melton was paid for all
of the hours that he certified he worked. Not so, according
to Melton. Melton filed suit in state court alleging
violations of the Fair Labor Standards Act
("FLSA"), 29 U.S.C. § 207(a), and the Indiana
Wage Claim law, Ind. Code § 22-2-9-2(a). The County
subsequently removed the case to federal court.
complaint, Melton alleged that his timecards did not
accurately reflect the hours he worked because when he put
his actual time worked on his timecard, the office secretary
would reduce his hours to 37.5, telling him that he could not
be paid for more than 37.5 hours in a workweek. Specifically,
Melton claimed that he was not compensated for (1) time
worked before 8 a.m. even though his supervisor told him to
come to work early every day and (2) time worked through all
or part of his floating lunch each day.
support of his claim that he was not properly compensated,
and in response to discovery requests, Melton produced a
spreadsheet created from memory that purports to show the
dates and times he worked during the whole of his employment
with Tippecanoe County.
County moved for summary judgment on several grounds. In
particular, it argued that Melton "was paid for the time
he certified ..., his recollection of uncertified time is
demonstrably unreliable, and ... he did not take those steps
available to him to put Tippecanoe County on notice of any
allegedly inadequate compensation." (Def.'s Mot.
Summ J. 22.)
response, Melton refused to address the County's argument
that his "memory is unreliable/' calling it a
"premature argument" that "concerns
credibility to be decided at trial." (PL's Opp. to
Def.'s Mot. Summ. J. 7 n.2.) Instead, Melton addressed
the County's argument that it did not have knowledge of
Melton's additional work hours by designating the
following testimony from his deposition as evidence that he
worked hours for which he was not compensated: (1) that he
submitted time sheets with more than 37.5 hours to the
secretary; (2) that she would return a "corrected
version" with 37.5 hours; (3) that she told him he would
not be paid for hours worked beyond 37.5; (4) that Melton was
told by his supervisor on three occasions that he was
required to be at work before 8:00 a.m.; and (5) that he
spoke with his ...