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Gutierrez v. Summit Mountain Holding Group

United States District Court, D. Utah, Northern Division

November 9, 2018

K LEIGH GUTIERREZ, Counterclaim-Defendant.

          Brooke C. Wells Magistrate Judge.



         After her employment was terminated, Plaintiff Kami Gutierrez brought this suit against her former employers, Defendants Summit Mountain Holding Group and Summit Powder Mountain (collectively, Summit Mountain). Gutierrez claims Summit Mountain is liable for unpaid wages and retaliation under the Federal Labor Standards Act; unjust enrichment, breach of contract, and wrongful termination under Utah common law; and for violations of the Utah Payment of Wages Act. Summit Mountain counterclaimed for conversion, fraudulent concealment, and unjust enrichment.[1] Before the court are Gutierrez and Summit Mountain's cross motions for summary judgment on Gutierrez's claims.[2]


         Summit Mountain hired Gutierrez as an at-will employee in late 2015.[3] She initially worked as part of the events staff, but was soon promoted to captain of events.[4] During her work in both positions, Sydney Osmun was Gutierrez's direct supervisor.[5] Gutierrez clocked in for events, but claims she also spent time working “off the clock” and was not paid for that time.[6] In late December 2015 or early January 2016, Gutierrez asked Osmun how to get paid for time she spent picking up a case of alcohol for an event.[7] She asked, “How do I get paid for this? Am I just expected to do this or what?” Osmun responded, “Oh yeah, yeah, yeah.”[8]

         Between approximately January and April 2016, Gutierrez worked as a bartender at one of Summit Mountain's restaurants, the Powder Keg.[9] In April, she was given a new position at the North Fork Table & Tavern as a bar manager.[10] Gutierrez clocked in while working on site, but claims she worked additional time off the clock for which she was not paid.[11]

         The North Fork closed in October 2016 and Summit Mountain began converting the building to a new events space known as “Bower Lodge.” Gutierrez was asked to help with the transition and directed to track and report her hours to Emily Vanderhoof by email.[12]

         After approximately a month and a half in that position, Gutierrez became part of the events crew again.[13] Summit Mountain hired Tanner Blonquist on December 12, 2016 to oversee the Bower Lodge transition and to supervise Gutierrez.[14] According to Summit Mountain, Blonquist was instructed to monitor Gutierrez's work to ensure she reported the correct number of hours.[15] Blonquist was told that Gutierrez had not reported to a direct supervisor during the transition;[16] however, Gutierrez understood Reid Tomassi, director of events, to be her supervisor.[17]

         At the close of 2016, Gutierrez worked a New Year's Eve party at Bower Lodge. Prior to the event, Gutierrez noticed a name on the guest list because Gutierrez's husband had an anti-stalking injunction against this person.[18] Gutierrez informed Reid Tomassi of the situation. Tomassi told Gutierrez he would “take care of it.”[19] Later that evening, one of the owners of Summit Mountain called Gutierrez and informed her that the enjoined person would not attend the event.[20]

         On the evening of January 4, 2017, Tomassi called Gutierrez and thanked her for working the New Year's Eve event. Although the parties agree this phone call took place, they dispute the nature of the conversation. Summit Mountain claims Tomassi called Gutierrez as a colleague simply to thank her;[21] Gutierrez claims Tomassi also offered her a promotion, and that she responded by stating she would “need to be paid for the overtime that [she] was working.”[22]

         The next day, Vanderhoof approached Gutierrez and told her it would be her “last day with the company.”[23] Summit Mountain contends Gutierrez's termination was the result of her “failure to be present on-site” and “perform[] her job duties up to expected standards, ” and her “combative and insubordinate attitude towards Blonquist.”[24] According to Summit Mountain, the decision to terminate Gutierrez was made during a lunch meeting on January 4, when Blonquist recommended to the COO of Powder Mountain that she be terminated and advised him that Gutierrez had not shown up for work that day.[25]

         Gutierrez initiated this action by filing her Complaint on April 6, 2017.[26]


         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.”[28] A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”[29] A fact is material if, under the governing substantive law, it could affect the outcome of the suit.[30] In evaluating the motions, the court must “view the evidence and make all reasonable inferences in the light most favorable to the nonmoving party.”[31] The court considers the parties' cross-motions for summary judgment independently - “the denial of one does not require the grant of another.”[32] The moving party's burden of production to succeed on a motion for summary judgment depends on whether that party bears the ultimate burden of persuasion at trial.[33]

         I. FLSA Unpaid Wages

         Gutierrez's first claim is for unpaid wages under the FLSA. She alleges she worked overtime hours “off the clock” for which she was not compensated. Gutierrez never reported the hours in question to Summit Mountain.[34]

         To succeed on an FLSA unpaid wages claim, the employee bears the burden to prove she “performed work for which [s]he was not properly compensated.”[35] If an employer's records are inaccurate or unreliable, the employee does not have to establish the number of hours with concrete certainty. Instead, the Mt. Clemens burden-shifting framework applies.[36] Under that framework, the employee can meet her burden by showing she ‘“in fact performed work for which [s]he was improperly compensated and . . . . [producing] sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.”'[37] The burden then shifts to the employer “to produce evidence of the precise amount of work performed or to negate the reasonableness of the inference drawn from the employee's evidence.”[38] If the employer fails to rebut the employee's evidence, the court may award approximate damages.[39]

         The Mt. Clemens framework applies in this case, given Gutierrez's claim that she did not report off-the-clock overtime hours because Summit Mountain “discourage[d] and disallow[ed] overtime for fear of retaliation.” But Gutierrez fails under this framework to present sufficient evidence to show the amount and extent of unpaid work as a matter of just and reasonable inference.[40]

         The only evidence Gutierrez provides in support of her unpaid wages claim is her own testimony estimating she worked “between 55 to 60 hours per week” during several periods of her employment.[41] She testified in a deposition that she did not keep track of the time she worked off the clock[42] or make any written record of those hours.[43] When asked what tasks she performed off the clock, she testified:

Multiple times I had to go over and unlock the building, help set up because employees weren't there on time, picking up the liquor order from Ogden, working on the scheduling at home on the computer, [and] responding to emails and phone calls.[44]

         Gutierrez does not testify or provide other evidence regarding how long these tasks took or when or how often they were performed. She also maintains it would be “impossible” for her to list the work done on her computer and phone.[45]

         Faced with similar evidence, other courts have concluded employees failed to satisfy their burden under the Mt. Clemens framework. For example, in Brown v. Script Pro, LLC, the Tenth Circuit affirmed summary judgment for an employer on a FLSA unpaid overtime claim.[46]The plaintiff estimated he had worked about 80 hours from home over a four-month period.[47]Although he provided uncontroverted evidence - his own and others' testimony - that he had “actually worked overtime, ” he had not recorded the hours on the employer's timekeeping system nor kept “any other record of any sort to document the hours worked.”[48] The Court found the plaintiff failed to show the amount and extent of overtime by just and reasonable inference.[49]

         In contrast, employees in other cases have met their burden by supplementing their testimony with other evidence, such as personal records of the hours worked.[50] Even absent written documentation as corroboration, an employee's testimony can be sufficient evidence if it connects the estimation of unpaid time to specific and time-limited tasks, allowing the court to reasonably approximate the total amount of unpaid time.[51]

         Gutierrez's testimony that she worked “between 55 to 60 hours” per week, without any evidence to corroborate that estimate or connect it to specific tasks, is insufficient to show the “amount and extent of [unpaid] work as a matter of just and reasonable inference.” Gutierrez therefore fails to meet her burden as a matter of law, and her Motion for Summary Judgment on this claim is denied. And because Gutierrez fails to present evidence to establish an element of her claim, summary judgment is granted for Summit Mountain.[52]

         II. FLSA Retaliation

         Gutierrez also sues for retaliation under the FLSA. Section 215(a)(3) of the FLSA makes it unlawful for an employer to “discharge or in any other manner discriminate against any employee because such employee has filed any compliant or instituted or caused to be instituted any proceeding under or related to [the FLSA] . . . .”[53] Courts apply the burden-shifting framework articulated by the Supreme Court in McDonnell Douglas Corp v. Green to retaliation claims.[54] Under this standard,

a plaintiff must first establish a prima facie case of retaliation. The burden then shifts to the employer to offer a legitimate reason for the plaintiff's termination. Once the employer offers such a reason, the burden then shifts back to the plaintiff to show that there is a genuine dispute of material fact as to whether the employer's proffered reason for the challenged action is pretextual.[55]

         Applying this framework to the pending motions, the court concludes Gutierrez is not entitled to summary judgment because there are questions of material fact preventing her from establishing a prima facie case as a matter of law. As for Summit Mountain, it is entitled to summary judgment because even if Gutierrez could establish her prima facie case, she cannot show Summit Mountain's proffered reasons for her termination are pretext for retaliation.

         A. Gutierrez's Motion for Summary Judgment

         To establish a prima facie case of retaliation, a plaintiff must show “(1) [she] engaged in activity protected by the FLSA; (2) [she] suffered an adverse action by the employer, subsequent to or contemporaneous with such activity; and (3) a causal connection existed between the [protected] activity and . . . adverse action.”[56]

         There is no dispute here that Gutierrez suffered an adverse action when her employment was terminated on January 5, 2017. Gutierrez claims she was terminated in retaliation for bringing up overtime pay in two conversations she had with different supervisors during her employment. The first conversation was with Sydney Osmun in late 2015 or early 2016; the second was with Reid Tomassi the night before Gutierrez was terminated.

         The conversation with Osmun cannot serve as the basis for Gutierrez's retaliation claim, however, because it is not casually related to her termination. An employee can demonstrate a causal connection with circumstantial evidence of retaliation, including temporal proximity between a protected activity and the adverse action.[57] But unless there is “very close temporal proximity, ” additional evidence of causation is required.[58] A period of three months or more between a protected activity and adverse action is generally insufficient by itself to establish causation.[59] Gutierrez claims she spoke to Osmun about overtime approximately one year before she was terminated; without more, this loose temporal proximity falls far short of the evidence necessary to establish a causal connection between the two events.

         As for Gutierrez's conversation with Tomassi, it took place the night before her termination. However, there remain questions of fact as to whether the conversation constituted a protected activity. Section 215(a)(3) of the FLSA protects employees against retaliation for, among other things, the “unofficial assertion of rights through complaints at work.”[60] To constitute a protected activity, however, a complaint must be “sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute.”[61] In other words, it must be capable of putting the employer “on notice” of a potential FLSA claim.[62]

         The parties dispute Tomassi's relationship to Gutierrez and the nature of their January 4 conversation. Gutierrez testified in her deposition that Tomassi was her supervisor. She says Tomassi called her to thank her for her work at the New Year's event and to offer her a promotion to “event manager.” Gutierrez claims she responded that she would “love to do that” but would need to be “paid for the overtime that [she] was working.”[63] Summit Mountain, on the other hand, claims Tomassi was never Gutierrez's supervisor and that he lacked authority to promote her or discuss her wages. As support for this position, they submit a declaration from Tomassi. According to Tomassi, he called Gutierrez “because [they] were colleagues who were friendly;” he states he did not offer Gutierrez a promotion or discuss wages or overtime with her.

         Given this record, there are genuine disputes regarding whether Tomassi was Gutierrez's supervisor and whether he offered her a promotion. The disputes are material; if Tomassi was not Gutierrez's supervisor, then the conversation could not have put Summit Mountain “on notice” and could not constitute a protected activity.[64] There is also a material dispute regarding whether Gutierrez clearly asserted FLSA-protected rights by asking to be paid for time she was working off the clock. These disputes present questions of fact that preclude summary judgment for Gutierrez.[65]

         B. Summit Mountain's Motion for Summary Judgment

         Even if Gutierrez succeeded in making a prima facie showing, she cannot meet her ultimate burden to show Summit Mountain's proffered reason for her termination is pretextual. If an employee makes a prima facie case of retaliation, the employer must then offer a legitimate, non-retaliatory reason for the termination. At that point, the burden shifts back to the employee to show “a genuine issue of material fact as to whether the employer's proffered reason for the challenged action is pretextual.”[66] At this third stage, “the presumption of discrimination . . . drops from the case and the factual inquiry proceeds to a new level of specificity.”[67]

         Here, Summit Mountain has submitted evidence that Gutierrez was terminated due to absences, inadequate performance, and a “combative” attitude. Blonquist avers he observed Gutierrez coming to work late and leaving early.[68] Summit Mountain provides Blonquist's handwritten record of Gutierrez's time on-site, which he kept between December 26, 2016 and January 5, 2017 - it indicates she was on site a total of 31 hours during that time.[69] Blonquist states that Gutierrez was combative and insubordinate toward him and toward another employee in an event captain position.[70]

         The burden therefore shifts back to Gutierrez to show, by a preponderance of the evidence, that Summit Mountain's articulated reasons are pretext for retaliation. An employee can show pretext by pointing out “weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's . . . reasons for its action.”[71] To survive summary judgment, Gutierrez must “produce evidence from which a reasonable jury could believe that the defendant's proffered reason is a false one.”[72]

         This she fails to do. Gutierrez relies on her “sterling work history, ” her previous promotions, and the timing of her firing in relation to the Tomassi conversation to establish pretext. However, she provides no evidence to support her “sterling work history.” Although the record shows Gutierrez was promoted soon after she was hired and again around April 2016, those facts are not inconsistent with Summit Mountain's proffered reasons, all of which stem from Blonquist's interaction with and observance of Gutierrez starting in December 2016.

         Gutierrez thus relies solely on the temporal proximity between her conversation with Tomassi and her termination. While this piece of circumstantial evidence raised an issue of fact at the prima facie stage, it cannot do the same at this stage; “close temporal proximity is a factor in showing pretext, yet is not alone sufficient to defeat summary judgment.”[73] Gutierrez therefore fails to raise a question of fact and Summit Mountain's Motion for Summary Judgment is granted.

         III. Unjust Enrichment

         Gutierrez brings a claim for unjust enrichment, arguing Summit Mountain benefitted from unpaid, off-the-clock hours she worked during her employment.

         As Summit Mountain correctly points out, this claim is preempted by the FLSA. ‘“[W]here a state common law claim is based upon the same facts as a FLSA cause of action, the duplicative state-law claim is preempted by the FLSA and must be dismissed.”'[74] Gutierrez's unjust enrichment claim depends on the same facts and circumstances underlying her FLSA unpaid wages claim and is therefore preempted as a matter of law.[75] Summit Mountain's Motion is granted on this claim and Gutierrez's Motion is denied.

         IV. Breach of Contract

         It is undisputed that Gutierrez worked as an at-will employee and that the parties did not have a written employment agreement.[76] Gutierrez nevertheless asserts a breach of contract claim, arguing that the parties formed “some form of contract, ” such as an implied contract, which Summit Mountain breached.

         Gutierrez bears the burden to show she and Summit Mountain “created an implied-in-fact contract, modifying [her] at-will status.”[77] She fails to do so here, offering only the vague suggestion that “if Powder Mountain's Employee Handbook says that employees will be fired only for certain misconduct . . . it can be required to live up to that promise - especially if the employee is at will.”[78] She does not provide the Employee Handbook as an exhibit nor cite to any language ...

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