A federal judge from the District of Nebraska has granted summary judgment to Creighton University, in a case in which the school was sued by an assistant soccer coach for alleged violations of the Fair Labor Standards Act (FLSA).
In so ruling, the court reasoned that the plaintiff Ileana Moschos’s evidence was lacking. In fact, she “failed to provide any evidence of a single hour worked over 40 hours per week in the relevant period.”
In the winter of 2006-07, Moschos was contacted by Creighton University Women’s Soccer Head Coach Bruce Erickson about an open assistant coach position. The court noted that, besides a distinguished playing career, she was also a very experienced assistant coach, having served as an assistant at Florida State University, Iowa State University, the University of North Texas, Sacramento State University, the University of Wyoming, and Davidson College. At the time Erickson and Moschos discussed a possible position at Creighton, Moschos was working as a volunteer assistant coach at Florida State University and taught sports management classes.
In January of 2007, Moschos came to Creighton for an interview, after which Erickson offered her the position. A one-page offer letter was prepared by Erickson outlining the financial terms, which included a $30,000.00 salary, a car stipend, and the opportunity for separate summer camp earnings. Moschos accepted the offer, and signed the offer letter on January 26, 2007, with an anticipated start date of April 2007. Moschos then returned to Florida State University to complete her work there. On March 7, 2007, a second letter was sent to Moschos, this time by a recruiter in Creighton’s Human Resources Department. This letter again offered the position to Moschos, but stated that “the salary for this full-time non-exempt position is $14.42 per hour.” The letter also stated: “This letter represents an initial offer of employment; however, it does not constitute an employment contract for any specific period of time . . . .”
Moschos began work at Creighton in late April 2007. From the date she started until December 7, 2007, Moschos was paid for 40 hours of work each week at $14.42 per hour. Effective December 7, 2007, Moschos’s pay was changed from $14.42 per hour paid twice per month, to an annual salary, paid monthly. Moschos was aware that her compensation had been changed to a salary, but did not voice her objections to anyone at Creighton.
Creighton claimed that the change was due to an analysis conducted by Creighton’s Human Resource Department regarding whether certain positions at the University were properly classified as exempt or non-exempt under the FLSA 29 U.S.C. § 201, et seq. The analysis included the position of women’s assistant soccer coach, and concluded that because the primary duties of the position included independent judgment and discretion, the position should be re-classified as exempt and Moschos should be paid on a salaried basis. Moschos claims that she was reclassified in a salary position because she made complaints about not being paid for all hours over 40 per week, and was being directed to change her time sheets to only show 40 hours per week. Moschos alleges she was told by two administrative assistants within the athletic department that she was required to report 40 hours per week on each timesheet, regardless of her actual hours worked.
Beginning December 9, 2007, Moschos kept no timesheets or records of her hours worked at Creighton. Effective July 1, 2008, Moschos’s salary was increased to $32,000 per year, paid monthly. In addition to her salary from Creighton, Moschos worked summer camps for Erickson for which she was paid by him $6,000 per summer in each of the years 2007-10. Moschos also worked summer camps at other schools or organizations for which she was paid separately by those schools or organizations. Moschos received her regular paycheck from Creighton each summer, even though Moschos was working elsewhere during those camps. Moschos asserts that her work at these camps benefitted Creighton by allowing her to evaluate potential recruits. Moschos left Creighton effective June 2, 2011.
Moschos sued on December 1, 2011, alleging that Creighton owes her unpaid overtime under the FLSA. Specifically, she claimed that Creighton improperly changed her wage status, and that Creighton owes her overtime pay under the FLSA dating back to December 1, 2008, the furthest date her claim could extend under the statute of limitations.
Creighton denied the claims, and argued that Moschos was properly classified as exempt from overtime pay in December 2007, and remained so throughout the balance of her employment. The school moved for summary judgment.
From the start, the court focused on whether Moschos could present sufficient proof of her overtime hours claimed. “In a claim for unpaid overtime under the FLSA, plaintiffs must ‘present evidence that they worked above their scheduled hours without compensation and that the employer knew or should have known that they were working overtime. Hertz v. Woodbury Cnty., Iowa, 566 F.3d 775, 781 (8th Cir. 2009). The plaintiff bears the burden of demonstrating ‘(1) that the plaintiff has performed compensable work and (2) the number of hours for which the plaintiff has not been properly paid.’ Id. at 783 (citing Goldberg v. Kickapoo Prairie Broad. Co., 288 F.2d 778, 784 (8th Cir.1961)). The parties dispute, however, the extent to which Moschos must show the amount of her uncompensated work—in essence, her damages—in order to survive summary judgment. Specifically, Creighton claims that Moschos is unable to meet her burden of proof as to the hours claimed, and the evidence upon which Moschos relies is inadmissible and unreliable.”
The court agreed that Moschos “has not met her burden, even under the relaxed standard articulated in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687-88, 66 S. Ct. 1187, 90 L. Ed. 1515 (1946).”
Elaborating, the court wrote that Moschos “offers no factual allegations to substantiate her overtime claims during the relevant period. Further, she provides no evidence of the amount or extent of hours she actually worked without compensation, and provides no evidence that Creighton was aware that she worked unpaid overtime hours during the relevant period. Moschos’s conclusory evidence is insufficient to establish the amount and extent of unpaid overtime.”
Ileana Moschos v. Creighton University; D. Neb.; 8:11CV403, 2013 U.S. Dist. LEXIS 78213; 6/4/13
Attorneys of Record: (for plaintiff) Michael B. Kratville, KRATVILLE LAW FIRM, Omaha, NE.(for defendant) Thomas F. Hoarty, Jr., BYAM, HOARTY LAW FIRM, Omaha, NE.
