Murray v. Birmingham Board of Education (172 F. Supp. 3d 1225, 2016)

MEMORANDUM OPINION

KARON OWEN BOWDRE, CHIEF UNITED STATES DISTRICT JUDGE

The court has withdrawn its Memorandum Opinion (doc. 149) and substitutes this Memorandum Opinion in its stead.

Seventeen employees working in various schools within the Birmingham City school system bring this Fair Labor Standards Act case; they claim they worked’ overtime without compensation during the relevant time period. The relevant period commences on May 1, 2010 if the alleged violation was willful, or commences' on May 1, 2011 if the alleged violation was not willful, and proceéds until the filing of this case oh May 1, 2013, or the termination of employment with the Board, whichever occurred first.

The case comes before the court on “Defendant Birmingham Board of Education’s Motion for Summary Judgment” (doc. 70), and “Defendant’s Motion to Strike” (doc. 92). As to the motion for summary judgment, Defendant filed a brief and eviden-tiary material in support of its motiojn for summary judgment (does. 71 & 38-39, respectively, the motion relying on evidence previously filed in support of a prior motion for summary judgment, which was withdrawn). The Plaintiffs responded with a brief and evidentiary material (docs. 80 & 81-82), and Defendant replied (docs. 93 & 94). As to the motion to strike, Plaintiffs filed a response (doc. 97).

For the reasons stated in this Memorandum Opinion, the court WILL GRANT IN PART and DENY IN PART both motions as further set out below.

I. PROCEDURAL BACKGROUND

Although Plaintiffs filed this case in 2013, the court has stayed it twice: (1) from May 28, 2014 through April 8, 2015 pending the Eleventh Circuit’s ruling on the immunity issue, initially and pending re-hearing, in separate cases filed against different school boards (doc. 57 — staying case; & doc. 64 - continuing the stay pending re-hearing); and (2) from- July 10, 2015 through February. 18, 2016 pending mediation (doc. 114 — notice of the unsuccessful conclusion to mediation & doc. 127 - confirmation of lifting of the stay).

The court also has addressed various motions. In the Amended’Complaint, the Plaintiffs sued not only the Defendant Birmingham Board of Education but also individuals, whom this court dismissed (doc. 25) in response to those individual Defendants’ motions (docs. 9 & 18).

On May 5, 2014, the Defendant Board filed a motion to dismiss Plaintiffs Shirley Pritchett, Linda Mitchell, and Bridgette Jackson for failure to prosecute, because they did 'not appear for their depositions. (Doc. 41). The court granted the motion as to Plaintiffs Pritchett and Mitchell and dismissed them,' but, because Plaintiff Jackson advised the court that she was out of town for an unexpected family emergency on the date of her deposition, the court denied the motion'as to Jackson “without prejudice to its re-filing if Jackson fails in the future to participate appropriately in the prosecution of this cáse.” (Doc. 55). The Board filed two ’more motions to dismiss Plaintiff Jackson. (Docs. 72 & 129). Although the court denied the second motion to dismiss as prematurely filed (doc. 84), after Ms. Jackson failed once again to appear at a noticed deposition, the court granted the third request'and dismissed Ms. Jackson’s claims (doc. 137).

On May 5, 2014, the Defendant Board also filed its first motion for summary judgment (doc. 36) as corrected (doc. 48), with evidentiary material (docs. 38 & 39,), but the court struck the accompanying brief as failing to comply with, the court’s requirements (doc. 43). The Board filed an amended brief with the court’s permission (doc. 46) and an appendix to the amended brief containing state court litigation and orders (doc. 47). As noted earlier, shortly after this motion came under submission, the court stayed the cáse while awaiting the Eleventh Circuit’s ruling in a separate case with "a similar immunity issue. When that ruling was adverse to the Board, the Board withdrew its motion for summary judgment with the court’s permission, with a view to re-filing an amended version in light of the Circuit Court’s ruling. (Docs. 68-motion to withdraw & 69-granting motion to withdraw).

In 2015, the Board filed both motions currently pending: on April 30, 2015, the Board filed the second and current motion for summary judgment (doc. 70 and incorporating previously-filed evidentiary materials, docs. 38 & 39); and on June 10, 2015, the Board filed the pending motion to strike (doc. 92). This court again stayed the case and suspended deadlines pending mediation of the claims both in this case and in the related case of Banks v. Jefferson County Bd. of Educ., Case No. 12-1682-MHH. (Docs. 101 & 102).

After attempts to mediate this case stagnated (docs. 114), the parties in both Banks and the instant Murray case held some joint evidentiary proceedings to determine whether issues in the cases could be' clarified and whether settlement remained an option (docs. 119 & 125). After-wards, this court determined that it must proceed with the pending motion for summary judgment in the Murray ■ case, and confirmed the lifting of the stay. (Doc. 127).

II. MOTION TO STRIKE

The Defendant’s motion to strike (doc. 92) requests that this court strike seven separate evidentiary offerings numbered to correspond with the paragraphs in the motion: (1) the declaration of Sharon Jack-: son (doc. 82-3); (2) (a & b) the declarations of Angela Jackson (doc. 82-4, at pp. 1-7); (3) the declaration of Andrea Stallings (doc. 81-11); (4) the deposition of Dr. Craig Witherspoon .(doc. 82-5 in the instant case but taken in the case of Reynolds v. Birmingham Bd. of Educ., 10-CV-2963); (5) the affidavit of Katrina Cosby (doc. 82-G); and (6) the affidavit of former Plaintiff Bridgette Jackson (doc. 82-1).

As a preliminary matter, the court notes that the Board repeats in mo’st paragraphs of its motion the objection that Plaintiffs failed to “disclose[ ] this individual in their responses nor was she mentioned as a witness in the hours of deposition testimony.” (Doc. 92, at 2-5, ¶¶1, 2, 3, 5), and 6 (which specified Bridgette Jackson by name instead of using the generic term “this individual.”). The objection makes sense when the Board used it to object to testimony of non-parties, such as Sharon and Angela Jackson and Katrina Cosby. But, the objection is nonsensical when applied to Plaintiff Andrea Stallings (doc. 92, at 3, ¶ 3) and to former Plaintiff Bridgette Jackson (doc. 92, at 4, ¶ 6); obviously, the parties do not have to disclose their own names as potential witnesses.

A. The Declarations of Sharon Jackson (Doc. 82-3) and Angela Jackson (Doc. 82-4), and the Affidavit of Katrina Cosby (Doc, 82-8)

The Board objects to these declarations because, among other reasons, the Plaintiffs failed to disclose their names as witnesses in response to question 3 in the interrogatories, which requested that they identify every witness with knowledge of the circumstances made the basis of this suit. Further, the Board stated that the Plaintiffs failed to mention these three people as witnesses when asked to do so in deposition testimony. In their response to the motion to strike, the Plaintiffs do not deny that they failed to list Sharon Jackson, Angela Jackson, and Katrina Cosby as a possible witnesses.

According to Rule 26(a)(1)(A) of the Federal. Rules of Civil Procedure, each party is required to provide to the other parties “the name, and, if known, the address and phone number of each individual likely to have discoverable information ....” Fed. R. Civ. P 26(a)(1)(A). Rule 37(c)(1) provides that “[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at trial unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1).

If Plaintiffs desired to use these three individuals as witnesses, they should have apprised the Board of that fact by including them in Initial Disclosures or on the witness list that the Board requested by interrogatory. Or, if the Plaintiffs did not initially know that these people had relevant information, they should have supplemented that list when they discovered such information. The Plaintiffs cannot wait until after discovery is closed and then rely on witnesses at summary judgment whom the Plaintiffs had not identified; the Board was not expecting that reliance and had no reasonable opportunity to depose them in the instant case. The Plaintiffs have not shown where the failure to disclose Sharon Jackson, Angela Jackson, and/or Katrina Cosby was substantially justified or harmless.

Under these circumstances, pursuant to Rule 37(c)(1), the court will not allow the testimony of these three witnesses to be used at this summary judgment stage; the court WILL GRANT the motion as to their testimony and WILL STRIKE the declarations of Sharon and Angela Jackson and the affidavit of Katrina Cosby.

B. The Declaration of Andrea Stallings with Attached Timesheets (Doc. Sill & 81-12)

The Board requests that the declaration of Plaintiff Stallings given in the related Banks case in 2013 be stricken because Stallings gave a thorough deposition in the instant case in- 2014, and that the declaration is self-serving and overbroad. Ms. Stallings originally gave this declaration in the Banks case, which was filed just over a year before the Murray case. The Plaintiffs responded that the declaration is dated a year before her deposition in the instant case and “could not possibly contradict the deposition which was taken one year later.” (Doe. 97, at 6).

The issue is not whether the declaration is dated before or after the deposition, because the Board does not specifically argue that the declaration is contrary to the deposition or is otherwise a sham concocted to create a genuine issue of material fact after the taking of a deposition in the instant case. Rather, the issue, based on the Board’s objection, is whether a party is precluded from using her declaration testimony simply because it was given in another case against the same Defendant, when she has also' given a thorough deposition in the case at bar. Rule 56(c), which addresses the use of depositions and other testimony to support factual positions at the summary judgment stage, does not preclude the reliance on testimony given in another casé when the same declarant has given deposition testimony in the instant case, and the Board does not point this court to any federal rule or federal caselaw that precludes such testimony or reliance on it.

The Board generally objects that the declaration is “sélf-serving and over broad” but does not specify how it is over broad and what particular language in the declaration is objectionable. If Ms. Stallings’s declaration testimony in the Banks case about her work had focused on a certain time period that did not include the relevant timé period in the Murray case, then an objection about its breadth and time frame could be well-taken. However, the date of Ms. Stallings’s declaration was January 4, 2013, a few months before this action was filed on May 1, 2013, and she testified to work schedules and work policies that were consistent during her tenure as a Child Nutrition Program Manager employee'-of the Birmingham Board of Education. . Therefore, her testimony would include much of the relevant period for this suit. To the extent, if any, that the testimony covers additional time periods and information irrelevant or improper for the instant case, the court is capable of disregarding that information for summary judgment purposes. Further, the characterization of testimony, as “self serving” is not alone grounds to strike it. See generally Feliciano v. City of Miami Beach, 707 F.3d 1244, 1252 (11th Cir.2013) (“To be sure, Feliciano’s sworn statements are self-serving, but that alone does not permit us to disregard them at the summary judgment stage.”).

The court notes, that the same counsel represent the Board in both the instant case and the Banks case. The Board has not specifically alleged that the Plaintiffs failed to disclose this document in Initial Disclosures or as a response to discovery requests; it has not characterized this declaration as an unfair surprise.

Based on the limited. information presented in the motion, the court FINDS that the Board has not.established that the entire declaration is due to be stricken, and WILL DENY the motion as to Stall-ings’s declaration.

As for the timesheets, the Board requests that the first two pages of document 81-12 be stricken because they are for the time period of April 2010, which is outside the relevant time period here, beginning either on May 1, 2010 or May 1, 2011, depending on the resolution of the willfulness issue. The court’s review of document 81-12 confirms that the first two pages concern Stallings’s time from April of 2010. Accordingly, the court WILL GRANT the motion as to pages one and two of document 81-12, and WILL STRIKE those pages, but the rest of that document remains.

C. Deposition of Dr. Craig Witherspoon (Doc, 82-5)

The Board requests that the court strike this deposition because (1) it was not given for the instant case but was given for the case of Reynolds v. Birmingham Bd. of Educ., Case No. 2:10-CV-02963; (2) because, although the defendant in Reynolds is the same as here, counsel for the Board were not counsel in the Reynolds case and counsel do not know what time frame that case involves except that the time frame is different from the time frame relevant here; and (3) because the deposition references exhibits that are not attached to it in the record of this case. The Plaintiffs respond that they referred to the Reynolds case in them Amended Complaint. Neither party advised the court whether the Plaintiffs had disclosed that they would be relying on this document in discovery responses or in Rule 26 responses.

Part of the court’s analysis regarding whether such a deposition can be used is whether the deposition testimony would be admissible in evidence. Fed. R. Civ. P. 32 (a) (1 & 3). Rule 32, entitled “Using Depositions in- Court Proceedings,” provides that-an adverse party may use for any purpose the deposition of a party’s officer, director, or managing agent, provided that the party against whom it is admitted “was present or represented at the taking of the deposition or had reasonable notice of it,” Rule 32(a)(8), entitled “Deposition Taken in an Earlier Action,” provides that such a deposition “may be used in a later action involving the same subject matter between the same parties ... to the same extent as if taken in the later action. A deposition previously taken may also be used as allowed by the Federal Rules of Evidence.” Fed. R. Civ. P. 32(a)(8). Further, Rule 804 of the Federal Rules of Evidence provides that deposition testimony is an exception to hearsay and admissible “whether given during, the current proceeding or a different one” when the deponent is unavailable and the party against whom, the testimony is offered had “an opportunity and similar motive to develop [the testimony] by direct, cross-, or redirect examination.” Fed. R. Evid. 804(b)(1).

At the time of the challenged deposition offered in the instant case, the deponent, Dr. Witherspoon, was an officer of the Board, and the Board was represented at the taking of that deposition, so the court FINDS that Rule 32(a)(1) and (3) would apply. The Eleventh Circuit has previously affirmed a district court’s consideration of deposition testimony given in a separate litigation under similar circumstances. The Nippon Credit Bank, Ltd. v. Matthews, 291 F.3d 738, 750-51 (11th Cir.2002), abrogated on other grounds by Diamond Crystal Brands, Inc. v. Food Movers Int'l, Inc., 593 F.3d 1249 (11th Cir.2010). The Court of Appeals found-that the district court did not err by considering at the summary judgment stage depositions taken in a separate proceeding. The Court of Appeals cited both Rule 32(a) of the Federal Rules of Civil Procedure and Rule 804(b)(1) of the Federal Rules of Evidence, explaining: “[a] deposition taken in a different proceeding is admissible if the party against whom it is offered Was provided with an opportunity to examine the deponent.” 291 F.3d at 750-51.

The Board has not provided the court with a sufficient reason for striking the entire deposition of Dr. Witherspoon. The mere fact the deposition of the Board’s superintendent was taken in another lawsuit and defended by counsel who are not members of or associated with the Board-man, Carr law firm does not render the totality of the deposition testimony inadmissible, because the Board was a party and had an opportunity tó be present at the deposition and develop the facts. The court recognizes that parts of Dr, Wither-spoon’s testimony may refer to facts that relate to a different time period or to facts that do not relate to this lawsuit, but the Board has failed to point to those specific facts. To the extent, if any, that the testimony relates to a time period not relevant to this case, or that the testimony is unclear because of the omission of exhibits, the court is capable of disregarding that part of the deposition.

Accordingly, the court FINDS that the use of the deposition at the summary judgment stage meets Rule 32(a)(l & 3) and 56(c) of the Federal Rules of Civil Procedure and Rule 804(b)(1) of the Federal Rules of Evidence; the court DENIES the motion to strike as to Dr.; Witherspoon’s deposition as a whole.

D. Affidavit .of Bridgette Jackson (doc. 82-1)

In addition to the inappropriate objection that this Plaintiff was not disclosed as a potential witness, the Board requests that the court strike this affidavit because the ¡Board did not have the opportunity to take her deposition. The court recognizes the unfairness of allowing Ms. Jackson to file an affidavit to present evidence in her favor when she repeatedly failed to show up at her depositions that the Board noticed, and, in any case, the court has dismissed her claims because of her failure to prosecute them. (Docs. 129 & 137). The court WILL GRANT the motion to strike as to Ms. Jackson’s affidavit.

III. MOTION FOR SUMMARY JUDGMENT

The Board argues that this court should grant summary judgment in its favor on all claims for the following reasons: (1) as to the claims that the Board failed to pay for work performed in excess of scheduled hours but not greater that 40 hours per week, the FLSA requirements for overtime compensation do not cover such claims; (2) as to all other claims of overtime, the Plaintiffs have not established that they worked overtime without overtime compensation and have not established that the Board had knowledge, or should have had knowledge, that they worked overtime; and (3) as to the claims for willful violations of the FLSA, the Plaintiffs have not established that a genuine issue of material fact exists that their conduct falls within the definition of willfulness.

A. Legal Standard on a Motion for Summary Judgment

Summary judgment is an integral part of the Federal Rules of Civil Procedure. Summary judgment allows a trial court to decide cases when no genuine issues of material fact are present and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56. When a district court reviews a motion for summary judgment it must determine two things: (1) whether any genuine issues of material fact exist; and if not, (2) whether the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).

The moving party “always 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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed. R. Civ. P. 56). The moving party can meet this burden by offering evidence showing no dispute of material fact or by showing that the non-moving party’s evidence fails to prove an essential element of its case on which it bears the ultimate burden of proof. Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548.

Once the moving party meets its- burden of showing the district court that no genuine issues of material fact exist, the burden then shifts to the non-moving party “to demonstrate that thére is indeed a material issue of fact that precludes summary judgment.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991). Mere disagreement between the parties is not significant unless the disagreement presents ■ a “genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) Substantive law determines which facts are material and which are irrelevant. Id. at 248, 106 S.Ct. 2505.

In responding to a motion for summary judgment, the non-moving-party “must do more than simply show that there is some metaphysical doubt as to the material fact.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). -The non-moving party must “go beyond the pleadings and by [its] own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’” Celotex, 477 U.S. at 324, 106 S.Ct. 2548 (quoting Fed. R. Civ. P. 56(e)); see also Advisory Committee Note to 1963 Amendment of Fed. R. Civ. P. 56(e), 28 U.S.C. app. (“The very mission of summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.”). “The non-moving party need not present evidence in a form admissible at trial.” Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir.1999) (citingCelotex, 477 U.S. at 324, 106 S.Ct. 2548).

In reviewing the evidence submitted, the court must “view the evidence presented through the prism of the substantive evi-dentiary burden,” to determine whether the nonmoving party presented sufficient evidence on which a jury could reasonably find for the nonmoving party. Anderson, 477 U.S. at 254, 106 S.Ct. 2505; Cottle v. Storer Commc’n, Inc., 849 F.2d 570, 575 (11th Cir.1988). The court must refrain from weighing the evidence and making credibility determinations, because these decisions fall to the province of the jury. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505; Stewart v. Booker T. Washington Ins. Co., 232 F.3d 844, 848 (11th Cir.2000); Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir.1999). Furthermore, all evidence and inferences drawn from the underlying facts must be viewed in the light most favorable to the non-moving party. Graham, 193 F.3d at 1282. The non-moving party “need not be given the benefit of every inference but only of every reasonable inference.” Id. The evidence of the non-moving party “is to be believed and all justifiable inferences are to be drawn in [its] favor.” Anderson, 477 U.S. at 255, 106 S.Ct. 2505.

Even if a district court “ ‘believes that the evidence presented by one side is of doubtful veracity, it is not proper to grant summary judgment on the basis of credibility choices.’” Feliciano v. City of Miami Beach, 707 F.3d 1244, 1252 (11th Cir.2013) (quoting Miller v. Harget, 458 F.3d 1251, 1256 (11th Cir.2006)). The court should not disregard self-serving statements made in sworn testimony simply because they are self-serving at the summary judgment stage, and if. the self-serving statements create a genuine issue of material fact, the court should deny summary judgment on that basis. Id. at 1253. After both parties have addressed the motion for summary judgment, the court must grant the motion if no genuine issues of material fact exist and if the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56.

B. FLSA Law

1. Elements of an FLSA Claim for Overtime

In the instant case, the Plaintiffs allege that the Board violated the FLSA in failing to compensate them for overtime work. To prevail on an FLSA claim for overtime, a plaintiff “must demonstrate that'(l) he or she worked overtime without compensation and (2) the Board knew or should have known of the overtime work.” Allen, 495 F.3d at 1314-15.

a. Overtime Worked

As to the first element, . the FLSA requires employers to provide compensation at \h times an employee’s regular rate of pay for all hours they are “[e]mployed” over 40 hours in a work week. 29 U.S.C. § 207(a)(1). “A person is employed if he or ’she is suffered or permitted to work.” Allen v. Bd. of Public Educ. for Bibb Cty., 495 F.3d 1306, 1314 (11th Cir.2007) (citing 29 U.S.C. § 203(g)). “[I]f the employer knows or has reason to believe that the employee continues to work, the additional hours must be counted.” Reich v. Dep’t of Conservation & Nat. Res., 28 F.3d 1076, 1082 (11th Cir.1994) (citing C.F.R. § 785.11).

The Supreme Court of the United States has explained that although Plaintiffs in an FLSA case bear the burden of proving that they worked overtime without compensation, “[t]he remedial nature of this statute and the great public policy which it embodies ... militate ■ against making that burden an impossible hurdle for the employee.” Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946), superceded by the Portal-to-Portal Act as recognized in Integrity Staffing So., Inc. v. Busk, — U.S. -, 135 S.Ct. 513, 516, 190 L.Ed.2d 410 (2014). The employer has a duty to keep records of the employee’s wages and hours, and “[e]mployees seldom keep such records themselves.” Id.

The Supreme Court in Anderson stated that. if. an employer has failed to keep accurate records and if the employee cannot offer “convincing substitutes,” .

[t]he solution .,. is not to penalize the employee by denying him any recovery on the ground that he is unable to prove the precise extent of uncompensated work. Such a result would place a premium on an employer’s failure to keep proper records in conformity with his statutory duty; it would allow the employer to keep the benefits of an employee’s labors without paying due compensation as contemplated by the Fair Labor Standards Act.

328 U.S. at 687, 66 S.Ct. 1187.

Thus, in.circumstances where the employer’s records are not accurate— whether because it has failed to keep records or because the records it kept cannot be trusted — and where the employee lacks documentation, the Supreme Court held in Anderson- “that an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated ánd -if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.” Id. The burden then shifts from the employee to the employer: the employer must present either evidence “of the precise amount of work performed” or evidence that negates “the reasonableness of the inference to bé drawn from the employee’s evidence.” Id. “ If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result be only approximate.” Id.

. b. N.otice

The second element of art FLSA overtime case is notice; thé Plaintiffs must show that the Board knew or should have known of the uncompensated overtime work. They may establish this element by raising a genuine issue of material fact that the Board had actual or constructive knowledge of such'work.

The Eleventh Circuit has explained that, in an FLSA case requiring such notice, “[k]nowledge may be imputed to the employer when its supervisors or management ‘encourage [ ] artificially low reporting.’ ” Bailey v. TitleMax of Ga., Inc., 776 F.3d 797, 801 (11th Cir.2015) (citing Allen, 495 F.3d at 1314-15 and Brennan v. Gen. Motors Acceptance Corp., 482 F.2d 825, 828 (5th Cir.1973)). Similarly, the prior Fifth Circuit stated that a “company cannot disclaim knowledge” when immediate supervisors “squelched truthful responses” regarding the number of hours actually worked,, even when the company’s “upper management regularly encouraged the full reporting of overtime.” Brennan, 482 F.2d at 827-28.

Thus, when an employee of a county school board presented evidence of her supervisor’s awareness of overtime worked without overtime pay, the Eleventh Circuit imputed the supervisor’s knowledge to the employer board and found that the evidence created a genuine issue of material fact as to the board’s actual knowledge of the overtime violation. Allen, 495 F.3d at 1318-19. Consistent with those rulings, the Eleventh Circuit recently found that when evidence reflected that the supervisor “encouraged artificially low reporting by explicitly instructing [the employee] to un-deiTeport his time by working off the clock” and also “squelched truthful timekeeping by changing [] time records to show fewer hours worked,” the employee had presented sufficient evidence of notice to survive the employer’s summary judgment motion. Bailey, 776 F.3d at 801 & 805.

The Plaintiffs can also establish the element of notice by creating a genuine issue of fact that the Board should have known of the uncompensated overtime work. “An employer is said to have constructive knowledge of its employee’s overtime work when it has reason to believe that its employee is working beyond his shift.” Allen, 435 F.3d at 1319 (citing 29 C.F.R. § 1785.11. The court measures the employer’s knowledge “in accordance with his ‘duty . to inquire into the conditions prevailing in his business.’” Id. (quoting Gulf King Shrimp Co. v. Wirtz, 407 F.2d 508, 512 (5th Cir.1969))). Although no FLSA violation exists “where the employee performs uncompensated work but deliberately prevents his or her employer from learning of it,” the employer cannot claim it did not know, about the overtime work when its “actions squelch truthful reports or where the employer encourages artificially low reporting.” Allen, 495 F.3d at 1319.

2. Equitable Defenses

An employer may not successfully assert an equitable defense to bar an FLSA action based on the employee’s intentional underreporting of work hours where the employer knew or had reason to know of that underreporting. Applying equitable defenses under such circumstances would undermine the Act’s deterrent purpose. Allen, 495 F.3d at 804-805.

3. Relevant Time Period:- Willful or Not?

The relevant time period of the FLSA case is either two or three years prior to the date of filing, depending upon whether a plaintiff can establish that the violation was willful: a cause of action arising out of a willful violation may be brought within three years after the action’s accrual, whereas the ordinary statute of limitations in cases brought under the FLSA is two years. 29 U.S.C. § 255(a).

“To establish that the violation of the [FLSA.] was willful in order to extend the limitations period, the employee must prove by a preponderance of the evidence that his employer either knew that its conduct'was prohibited by the statute or showed reckless disregard about whether it was.” Alvarez Perez v. Sanford-Orlando Kennel Club, Inc., 515 F.3d 1150, 1162-63 (11th Cir.2008). Showing reckless disregard is the “failure to make adequate inquiry into whether conduct is in compliance with the Act.” 5 C.F.R. § 551.104. A willful violation of the FLSA exists when the employer “ ‘disregarded the very possibility that- it was violating the statute.’ ” Allen, 495 F.3d at 1323-24 (quoting Alvarez v. IBP, Inc., 339 F.3d 894, 908-09 (9th Cir.2003) (internal quotations omitted)). “The determination of willfulness is ‘a mixed question of law and fact.’ ” Id. (quoting Alvarez, 339 F.3d at 908).

C. Facts and Analysis

All of the Plaintiffs in this case worked at various schools in the Birmingham City School System and claim violations of the FLSA’s overtime requirements. They claim that the Board’s official timesheets regarding their work hours were inaccurate because the. Plaintiffs woi’ked off-the-clock and because school management edited their timesheets to report fewer hours than they actually worked. They further claim that the Board knew or should have known about their true work hours because their supervisors had such knowledge. Although Plaintiff Murray, was a custodian and Plaintiff Scott was a bookkeeper, the other Plaintiffs worked in lunchrooms as part of the Child Nutrition Program (“CNP”), either as managers or as CNP workers.

1, Board Time-Keeping and Overtime Policies

The official policy of the Birmingham Board of Education is to pay overtime in compliance with the FLSA. (Doc. 50-1, at 5 ¶ 10 & at 8). Policy 3060 from the Board of Education’s employee policy manuals, approved in 1996 and revised in 2004, states that non-exempt employees “shall be scheduled for overtime work only with the prior approval of the employee’s direct supervisor and the Superintendent.” (Doc. 50-1, at 7) (emphasis added). Policy 3.8.5 from the Board’s policy manual, approved November 13, 2012, states that “[n]on-exempt employees are not authorized to work more than forty (40) hours in a workweek without specific direction or authorization to do so by the Superintendent, the employee’s supervisor, or the supervising school principal.” (Doc. 50-1, at 8) (emphasis added). Neither the page of the policy manual reflecting the approval of the November 2012 policy nor the affidavit of Craig Witherspoon, attaching pages with policies 3060 and 3.8.5, specifically acknowledged the conflict between the-two policies or specifically stated that the November 2012 policy superceded the earlier policy. However, the policy approved in 2012 would allow an employee to work overtime with the pre-approval of her supervisor or principal even if the Superintendent had not concurred with that approval. Regardless, the apparent practice in the relevant time period was to require the Superintendent’s pre-approval before working overtime.

The record reflects numerous memoran-da from Birmingham City Schools superintendents. and other administrators to city school principals, directors, supervisors, and coordinators regarding overtime plans. Qn January 16, 2008, Arthur Watts, Jr., the Chief Financial Officer sent a memo entitled “Changing Time,” confirming the FLSA requirements to pay an employee for actual time served; directing school leadership to stop adjusting employees’ times to subtract time when they have already worked beyond scheduled hours; and “strongly sugges[ting]” that principals and supervisors monitor the timesheets of all non-exempt employees on a daily basis ■to ensure compliance. (Doc. 50-3, at 6).

On March 6, 2008, in a memo entitled “OVERTIME PLAN,” Acting Superintendent Barbara Allen stated that the following overtime plan was effective immediately:

The Fair Labor Standards Act set basic wage and overtime pay standards. The district is required to pay a non-exempt employee time-and-a-half for work that exceeds 40 hours during a workweek. Please Do Not Allow Non-Exempt Employees to Clock-Out and Remain .Working And Do Not Allow Non-Exempt Employees to Take Work Home!!!

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All employees who serve in a supervisory capacity shall acknowledge and adhere to the following:

* * *

2.OVERTIME MUST BE PRE-AP-PROVED BY THE SUPERINTENDENT. If a situation arises where there is a need for overtime, the supervisor shall submit a request for overtime to his/her direct report. The overtime request shall be approved by all direct reports and finally by the Superintendent.

(Doc. 50-3, at 8) (emphasis in original). Also part of that March 2008 memorandum was a sheet that contained the following statements:

If a Principal or Department Head allows an employee to work overtime without allowing the employees to be paid, then he/she Shall Be Held Personally Responsible. Disciplinary actions will be accessed [sic], immediately. Again, overtime must be pre-approved.

(Doc. 50-3, at 9).

On July 21, 2013; Dr. Witherspoon advised officers, directors, coordinators, and principals in the school system by'written memorandum regarding an overtime' plan effective immediately. That plan confirmed the Board’s obligation under the FLSA to pay non-exempt employees time-and-a-half for work exceeding 40 hours per week, and reiterated the March 6,2008 directive: “Do not allow non-exempt employees to clock-out and remain working and do not allow non-exempt employees to take work home.” (Doc. 50-1, at 9).

The Board provided training sessions on FLSA for supervisors and required directors and principals to sign a statement in 2013 that reiterated much of the language in the March 2008 memo. The 2013 statement read in pertinent part as follows:

I,_, have read and fully understand the procedure for overtime expenditures as these relate to the Fair Labor Standards Act and Birmingham City Schools policy. I understand that in my supervisory position I will acknowledge and adhere to the following:

2. Overtime must be pre-approved by the superintendent or his designee. The supervisor shall submit a request for overtime to his/her direct report. The overtime request shall be approved by all direct reports and final [sic] by the Superintendent or his des-ignee.

3. The request for overtime should include the following: (1) name of employee(s) performing-the services, (b) date(s) for which overtime is requested, (c) estimated number of hours to be worked, (d) type of work to be performed with signature of all direct reports, including the Superintendent or his designee.

4. Request' should be submitted' one week prior to needed overtime. Extenuating circumstances' will be considered, but only if it meets the criteria for emergency relating to the health and safety of students/staff.

If a principal or Department Head allows an employee to work overtime without prior approval, the principal/department head shall be held personally responsible. Disciplinary actions,will be assessed immediately.

Doc. 50-1, Att. 3 at 10-11.

Neither the statement nor Dr. Wither-spoon’s -affidavit explains the conflict between this requirement-that the superintendent approve all overtime in advance versus the November 2012 written policy allowing ■ other school supervisors to approve all overtime in advance.

2. Time Keeping Records

To maintain a precise record of employees’ time worked, the Board implemented the Employee Attendance Management System (“EAMS”), approved for all schools in 2006. The system involved a hand scanner, which each employee is .required to use to scan in when they begin work and scan out when they stop. The monthly timesheet generated by the scans shows “regular hours” as the hours the employee is scheduled to work; “straight time” as the time over scheduled hours up to 40 hours per week when the employee is scheduled to work less than 40 hours per week; “overtime” as the hours over 40 that the employee works per week; and-vacation, sick leave, and holiday pay. The monthly timesheet was presented to each-employee on a monthly basis for his or her signature under the words: “I agree this accurately reflects my time and I have not been requested to falsify this timesheet.” Each employee’s supervisor also reviewed timesheets and signed them as well, agreeing to their accuracy. The timesheets were then sent to the Board’s Payroll Department for payroll processing, and paychecks were issued based on the time reported.

•However, despite, the signed agreement at the bottom of each timesheet, the Plaintiffs testified that the monthly timesheet they signed was not an accurate reflection of the time actually worked, either beeáuse they worked “off-the-cloek” or because the scanned times had received edits, or both. They claim that they signed their time-sheets because they understood that signing them was the only way that they'would receive their pay; that they feared contesting them would endanger their job; and/or that the Board would not pay overtime even if they had worked hours to earn it. Although the record does not always include copies of checks, pay stubs, or other payment documents other than the signed timesheets, most Plaintiffs acknowledged that the Board issued paychecks to each employee based on the time and applicable leave reported on the signed timesheets. Mr. Murray is an exception; he testified that, before January of 2014, even if his timesheets reflected overtime earned, he received- payment for his regular wage without payment either for overtime listed on the timesheets or overtime worked off-the-clock. (Murray Dep. Doc. 39-10, pp. 68-69 & 87).

a. Edited Timesheets

With some exceptions, the Board’s signed monthly timesheets generally reflected round daily hours: 6 for those scheduled to work 6 hours, 7 hours for 7-hour-per-day employees, and 8 hours for those who were scheduled to work a 40-hour week.

Some of the Plaintiffs presented archived unsigned timesheets that showed the actual scanned times with supervisor edits, which generally edited the scanned time to the rounded hours scheduled. Sometimes the edits only changed a few minutes to obtain the round numbers, but many of the actual scanned times showed repeated, substantial edits. This opinion will deal more specifically with those edits later as they relate to individual Plaintiffs.

(1) Punch Additions & Subtractions with [0],

Generally, the archived unsigned time-sheets showed numerous “punch” additions through “supervisor edits” that could' show that Plaintiffs simply forgot to scan in or out. But those additions are also consistent with the Plaintiffs’ testimony, which this court must accept at this stage, that they frequently did not take lunch breaks because they were too busy to do so and that the reason they sometimes forgot to scan in or out at the beginning and end of the day was that they were working before and after the scheduled work times.

When an employee scanned in or out, the scan reflected the employee’s designated number next to the scan time in brackets; however, when a supervisor/bookkeeper added the time punch without an employee scan, the time on both the archived unsigned timesheets and the monthly signed timesheets shows a [0].‘

(2) Transferred Time with no [0]

The archived unsigned timesheets also reflected edits that occurred even when the Plaintiff" did scan in and out: edits “transferring” time from the actual time scanned to another time. Put another way, the “transferred” time in fact altered- a time actually scanned with the employee’s scan number and changed it to another different time that the editor recorded, still retaining the.employee’s scan number. And, most troubling, because the “transferred” time edit retains the scan number of the employee, the alteration is invisible on the official signed timesheets; no [0] marks the alteration. Although some of the transferred edits are de minimis, some of these transferred edits subtracted substantial time from the employee’s scanned time — as much as thirty minutes to an hour — and support testimony from many Plaintiffs that they worked more than de minimis extra time that is not reflected on the official signed timesheet upon which their pay was based. Because the scan numbers correlated to each employee, and another employee cannot scan in or out for someone else, this evidence reflects that the Plaintiffs must have been present at the actual scanned times listed on the archived unsigned timesheet at the beginning and end of the day, and yet, those times were , sometimes edited to take away minutes from the Plaintiffs. The archived unsigned timesheet showed the transfer/alteration in the edit section at the bottom of the timesheets, but the resulting official timesheets that the Plaintiffs signed and from which they were paid, did not reflect the transfer at all; the number in brackets next to the altered time is the employee’s number and not a [0], as if it reflected the actual time the employee scanned in or out when in fact it reflected the altered time.

b. Working Ojf-the-Clock

The Plaintiffs also testified that the timesheets did not accurately reflect thé time they worked because their supervisors directed them to work off-the-clock, working in the morning before they scanned in for the day, scanning in. and out for lunch break even though they worked all or part of the break, and scanning out for the day before completing their chores. Some supervisors testified that they directed their supervisees to take breaks and that those employees did so. Other supervisors acknowledged that they knew the employees'in their charge did. not take lunch breaks or did not take the full breaks because they were unable to complete the necessary tasks if they did so. Some of these supervisors further acknowledged that employees scanned out and in for breaks to make sure the time-sheets reflected the break and scanned out at the end of the scheduled work day, but then worked “off the clock” to complete their tasks.

Some Plaintiffs who were CNP managers testified not only that their employees worked off-the-clock but ..that they did themselves. CNP managers also testified that they were not .paid for the time .they took paperwork home-to complete or the time they spent to take lunchroom money to the bank daily after they had clocked out. .

c. Time of Individual Plaintiffs and Burden of Proof

Prior to addressing the evidence regarding the time each individual Plaintiffs worked and making determinations regarding whether each has raised a genuine issue of material fact as to overtime hours, the court must address the appropriate burden ■ of proof as to evidence of overtime worked. The Board asserts that, in light of its precise time records generated by employee hand scans, the court must require that Plaintiffs provide “definite and certain” direct evidence of overtime hours sufficient .to counter those records; the Board insists-that the Plaintiffs do not meet this burden of proof with their evidence of approximate hours worked. ,

On the other hand, the Plaintiffs argue that this court should apply the more relaxed burden stated in the Supreme Court’s decision of Anderson v. Mt. Clemens Pottery Co., requiring only that they present evidence showing “the amount and extent of that work as a matter of just and reasonable inference.” 328 U.S. 680, 687, 66 S.Ct. 1187, 90 L.Ed. 1516 (1946). The Supreme Court has explained that the more relaxed burden is appropriate in circumstances where the employer’s records are not accurate, whether because it has failed to keep records or because the records it kept cannot be trusted. Id.

The Eleventh Circuit has spoken on this issue of the appropriate burden of proof, defeating the Board’s argument in the instant case. In Allen v. Bd. of Public Educ. for Bibb Cty., the defendant Board made a similar but unsuccessful argument. It asserted that the Court of Appeals should affirm summary judgment in its favor because the employees had not met their burden to counter the board’s precise time records that showed no overtime work; the employees had provided evidence of approximations of overtime hours worked but no documents showing the precise overtime hours. However, the Court of Appeals noted that “ ‘employees seldom keep such records themselves.’ ” Id. (quoting Anderson, 328 U.S. at 687, 66 S.Ct. 1187). It determined that Anderson’s relaxed burden of proof applied where the employees’ deposition testimony called into question the board’s records: they had testified that they “were told not to record their' overtime hours because the Board would not pay them overtime” and, when they did record overtime hours, they were told to “resubmit new time sheets that reflected their scheduled, not actual hours.” Id.

Applying the decisions of Allen and Anderson compels a decision that the relaxed standard of proof applies to the instant case. The Plaintiffs’ deposition testimony calls into question the trustworthiness of the Board’s official timesheets; they testified -that they worked off-the-clock at the direction of supervisors and that the schools adjusted their time scans to subtract time actually worked.' The archived time-sheets themselves raise questions about the reliability of the Board’s time records, as described above, and support to some extent the Plaintiffs’ testimony regarding the schools’ adjustment of their time scans. Although none of the Plaintiffs produced documents showing the precise time actually worked, they testified about their daily custom and habit of arriving and departing work at a particular time and working a specified amount of time during the lunch break. The court FINDS that the Plaintiffs have each produced' “sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.” See Anderson, 328 U.S. at 687, 66 S.Ct. 1187; Allen, 495 F.3d at 1317-18.

Having determined that the Plaintiffs have met their burden of producing sufficient evidence of hours worked, the court will next address whether that evidence raises a genuine issue of material fact that each Plaintiff worked more than 40 hours per work week during the relevant period without compensation.

1. Clarence Batain: Mr. Batain was a CNP worker at Minor School. His scheduled work hours ranged from 6 to &k hours per day. Based on his archived time-sheets, his work schedule was as follows:

• May 2010 through August of 2012 — 6 lk hours daily (7:00 AM-2PM, including a scheduled 30-minute break) and 32.5 hours weekly.

• September 2012 until his retirement in September of 2013 — 6 hours daily (7:30AM-2:00PM including a scheduled 30-minute break) and 30 hours weekly.

(Doc. 136-1).

Mr. Batain’s signed timesheets are not part of the record. However, the Board recently supplemented the record to include his archived unsigned timesheets dated May of 2010 through September of 2013, which were exhibits to his deposition but were not filed with the deposition. (Doc. 36-1). Those archived timesheets reflected straight pay but no overtime pay and contained numerous supervisor edits. Those edits included frequent additions of a 30-minute lunch break and some occasional transfers of time from the scan times.

Mr. Batain ■ testified that the only time he worked off-the-clock was in the after? noon. He testified that, in the mornings, when he worked at Minor, he would scan in and begin working (doc. 39-1 p. 14), and if he took a break, he would scan out and in (id. p. 17); however, he would scan out at his scheduled departure time at approximately 2:00PM and continue to work off-the-clock until he finished, which he estimated to be 2:30PM (id. p. 18). Therefore, accepting Mr. Batain’s testimony at this summary judgment stage, the scan times reflected in the archived timesheets with Batain’s number should accurately reflect the times he arrived and times he took lunch, breaks unless those scan times were adjusted by supervisor edits. Because the court also has the archived timesheets with the.supervisor edits, that time can be reconstructed with a degree of accuracy.

- • Accepting that testimony — accepting the morning and lunch break scans if they contained Mr. Batain’s number unadjusted by supervisor edits and accepting his testimony that he generally worked until 2:30PM — results in the conclusion that Mr. Batain worked substantial straight time in excess of his work schedule but no overtime.

Therefore, the court FINDS that Mr. Batain has not created a genuine issue of material fact of an FLSA overtime viola- • tion; the court WILL GRANT the motion for summary judgment as to Mr. Batain’s claims.

2. Daryl Carr: Mr. Carr was a CNP worker at Hudson Middle School. The unsigned archived timesheets reflected that Mr. Carr’s scheduled varied as follows:

• from April through August 2011 — 6 % hours daily (8AM-3PM including a 30-minute break) and 32 lh hours per week;

• from September through January 2012— 6 hours daily (7:30AM-2:00PM, including a scheduled 30-minute break) and 30 hours weekly;

• from February through September 2012 — 6 lk hours daily (7:30-2:30 PM, including a 30-minute break) and 32 ]/¿ hours per week; and

• October 2012 through January 2013 — 7 hours daily (7AM-2:30PM including a scheduled 30-minute ■ break) and 35 hours weekly.

(Doc. 136-2).

Mr. Carr testified that his supervisor “shifted my time around,” so he sometimes worked before he scanned in and before his scheduled commencement time (doc. 39-2, pp. 48, 75-76); that he scanned out for lunch break but continued working; and that when his shift ended at 2:30, he clocked out about the scheduled time but left for the day at approximately 3:15 or 3:30PM, or an hour after his scheduled .departure. (Id. pp. 11, 19-20, 27-28). Testifying about archived timesheet from September of 2012, Mr. Carr stated that the scans showing him generally arriving near 7:00AM were accurate, even though his scheduled time was 7:30AM; that he generally worked through the 30-minute lunch break, even though the timesheet shows he scanned out and in; and that he generally left about 3:30 even though the scans showed earlier times because he continued to work after scanning out for the day. (Doc. 39-2, at 57-68).

Testifying about the archived timesheet for December , of 2012, Mr. Carr testified that although the timesheet showed that he generally arrived at 7:00AM, scanned out and in for a 30-minute lunch, and scanned out from 2:33-3:llPM, the lunch and departure scans were not accurate;'he continued to work off-the-clock for 30 minutes during lunch and after scanning out for the day. (Doc. 39-2 pp. 75-79). He testified that in December of 2012, when he was scheduled to work 7 hours a day and 35 hours per week, he worked a minimum of an hour after his scheduled departure time- of 2:30PM, and often worked an hour-and-a-half to two hours after scanning out. (Id. p, 77).

Based on this testimony that, at his manager’s direction (doc, 39-2, p. 75), he began work sometimes at 7:00AM, sometimes at 7:15AM, and sometimes worked off-the-clock before work, worked through lunch despite scanning out, and did not leave until 3:15 or 3:30PM even though he scanned out earlier, his testimony supports regularly working over 40 hours per week during certain periods. Because he. claims to have worked off-the-clock, the court must accept his .testimony to the extent that it conflicts with the timesheets,’ and acknowledge the existence of a genuine issue material fact as to the. time actually worked. In addition, the scans on the archived timesheets support his testimony to this extent: they show, for example, that in August and September of 2012 when he was a 6/é-hour employee scheduled to work 7:30AM-2:30PM, he often scanned in closer to 7AM and often scanned out. past 2:30PM. (Doc. 136-2, at 11-12). As another example, in late 2012 and January of 2013, when he was a 7-hour employee, he regularly scanned out after his scheduled end time. (Id. at 13-16).

Therefore, based on Mr. Carr’s testimony, the court FINDS that Mr.'Carr has created a genuine issue of material fact that he worked over 40 hours per work week without overtime pay.

3. Anita Clark: Ms. Clark was a CNP Manager at Norwood’ Elementary and Barrett Elementary who was scheduled to work as follows:

• May of 2011 — 8 hours- daily (6:30AM-2:30PM, including no break while at Norwood)';

• 2011-2012 school year at Barrett — 8 hours daily (6:30AM-3:00PM including a scheduled 30-minute break).’

(Doc. 38-33).

She testified that she regularly worked 15 minutes before and 30 minutes after her scheduled hours and did not receive a full 30-minute lunch break, often receiving no break at all. (Doc. 39-3, at 12, 18-21, 23). She also testified that, before she moved to Barrett and before Ms. Michelle Sales, Director of the Child Nutrition Program, streamlined the ordering process on the computer, she took paperwork home two days each week and worked on it for 30 minutes, presumably each night (id. pp. 38-40). At Barrett, she did not take paperwork home, but she did go to the bank daily about 3:30 PM, a 20-25 minute trip after she clocked, out. At Norwood, she would go to the bank and back while still on the clock. (Id. pp. 12-13, 43).

■ Ms. Clark’s signed timesheets occasionally reflected overtime, but did not show overtime as a daily occurrence; these time-sheets reflected that Ms. Clark rarely scanned out for lunch, but, beginning in August of 2012, would simply show that site regularly scanned out in the evening 30 minutes earlier than her scheduled departure time.

An unexplained gap in the timesheets occurs for August 2011 .through May 2012. The archived unsigned timesheets were provided only for four of the relevant months — November of 2011, March of 2012, June of 2013, and February ■ of 2014 — the first three of which have no corresponding signed timesheet in the record. The archived timesheets primarily reflected supervisor edits adding daily punches in and out for lunch breaks; without those edits, the timesheets would reflect overtime of approximately 2]é hours per week. (Doc. 81-16). Ms. Clark testified that the secretary manipulated her time through supervisor edits to cut down or cut out overtime when she in fact earned it. (Doc. 39-3 pp. 19-20, 23).

The court FINDS that she has raised a genuine issue of material fact that she worked over 40 hours per work week without overtime pay.

4. Michelle Dunner: Ms. Dunner was a CNP worker at West End Academy, who had the following scheduled hours:

• August 2011 & 2012-13 school year — 7 hours per day (6:30AM-2PM or 6:00 AM-1:30 PM, both schedules including a 30-minute break), 35 hours per work week;

• May through June 2010; February through July 2011 — 6 hours per day (7:00AM-1:30PM, including a 30-minute break) and 30 hours per work week;

• 2013-14 school year — 6 % hours per day (6:30 AM-L30PM including a 30-minute break) and 32 $ hours per work week.

(Doc. 38-34; Doc. 136-3).

Despite these official hours, she testified that she started work' at 6:00AM and worked until 2:00PM nonstop, taking no lunch break: a total of 40 hours per week. (Doc. 39-5, pp. 19, 23, 25-27, 32, 43-50). She testified that, at her supervisor’s direction, she worked 30 minutes in the morning before clocking in, worked through lunch although she clocked out and in for lunch, and continued to work after clocking out for the day. However, even adding the off-the-clock hours does not result in mare than 40 hours per week. (Doc. 39-5, pp. 23-24, 27, 44-45).

Her signed timesheets do not cover the 2011-12 school year, although her archived unsigned timesheets attached to Claudia Cochran’s deposition include some months of that school year. (Docs. 38-34; 136-3). The signed timesheets in later years reflected that she earned' straight time (working over her scheduled hours'but not over 40 hours per week) but not overtime. (Doc 38-34.).

However, the court notes that Ms. Dunner claimed that, during the leave of her supervisor, Claudia Cochran, she performed extra hours and tasks for three weeks to three months, such as opening and closing the lunchroom, making deposits, and taking home paperwork like production reports; while disputes of fact exist about whether and how long she performed these tasks, the court must view those disputes of fact in the light most favorable to Ms. Dunner and accept her testimony.

Although Ms. Dunner was unsure about the date of Ms. Cochran’s leave and gave varying “guestimate” dates in her deposition testimony, Ms. Cochran testified that the event precipitating her leave occurred in June of 2010, so the leave would have occurred during the time period relevant to this lawsuit. (Cochran Dep. Doc. 39-4, p.' 65; Dunner Dep. Doc. 39-5, at 9-14, 16-17). Accordingly, accepting Ms. Dunner’s