     Case: 13-20186      Document: 00512530880         Page: 1    Date Filed: 02/12/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit


                                    No. 13-20186
                                                                                   FILED
                                                                            February 12, 2014
                                  Summary Calendar
                                                                              Lyle W. Cayce
                                                                                   Clerk
EDITH IHEGWORD,

                                                 Plaintiff-Appellant,
v.

HARRIS COUNTY HOSPITAL DISTRICT, d/b/a Ben Taub General Hospital,
d/b/a Lyndon Baines Johnson General Hospital, d/b/a Quentin Mease
Community Hospital, d/b/a Various Community Health Centers,

                                                 Defendant-Appellee.



                   Appeal from the United States District Court
                        for the Southern District of Texas
                              U.S.D.C. 4:10-cv-5180


Before STEWART, Chief Judge, and JOLLY and SOUTHWICK, Circuit
Judges.
PER CURIAM:*
       Plaintiff-Appellant Edith Ihegword brought suit under the Fair Labor
Standards Act (“FLSA”) against Defendant-Appellee Harris County Hospital
District (“HCHD”). The district court granted summary judgment in favor of
HCHD and dismissed Ihegword’s claims with prejudice. We affirm.



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 13-20186
                                       I.
      Ihegword, who is Nigerian, began working as a nurse for Ben Taub
Hospital in 1988 and in 2002, transferred to Quentin Mease Community
Hospital (“Quentin”) to work in the Geriatric Progressive Care Unit (“GPCU”).
In 2006, Jimmie Anglin, an African-American female, became the Nurse
Manager for the GPCU and consequently, became Ihegword’s supervisor. On
May 29, 2009, HCHD discharged Ihegword from her employment. HCHD cited
as reasons for Ihegword’s termination poor job performance, loss of confidence,
and inability to get along with co-workers.
      Ihegword ultimately brought suit in federal district court alleging: (1)
discrimination on the basis of national origin in violation of VII of the Civil
Rights Act of 1964 as amended; (2) discrimination on the basis of disability in
violation of the Americans with Disabilities Act (“ADA”); (3) failure to pay
overtime wages in violation of both the FLSA and Chapter 60 of the Texas
Labor Code; and, (4) retaliation. HCHD filed for summary judgment as to all
claims and the district court subsequently granted judgment in favor of HCHD.
Ihegword only appeals the district court’s ruling with respect to her claim for
unpaid overtime wages in violation of the FLSA.
                                      II.
      Ihegword contends that the district court erred in finding that she had
failed to produce sufficient evidence for a jury to find that she performed
uncompensated overtime work and that HCHD was aware that Ihegword had
performed the uncompensated overtime work. We disagree.
      This court reviews a district court’s grant of summary judgment de novo.
Nat’l Cas. Co. v. W. World Ins. Co., 669 F.3d 608, 612 (5th Cir. 2012) (citation
omitted).




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                                        No. 13-20186
      The FLSA mandates that “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.” Harvill v. Westward Commc’ns, LLC, 433 F.3d 428, 441
(5th Cir. 2005) (quoting 29 U.S.C. § 207(a)(1)). 1 “An employer who is armed
with [knowledge that an employee is working overtime] cannot stand idly by
and allow an employee to perform overtime work without proper compensation,
even if the employee does not make a claim for the overtime compensation.”
Id. at 441 (alteration in original) (citations and internal quotation marks
omitted).      “[I]f the employee fails to notify the employer or deliberately
prevents the employer from acquiring knowledge of the overtime work, the
employer’s failure to pay for the overtime hours is not a violation of § 207.” Id.
(alteration in original) (citation and internal quotation marks omitted).
      “An employee bringing an action pursuant to the FLSA, based on unpaid
overtime compensation, must first demonstrate that she has performed work
for which she alleges she was not compensated.” Id. (citing Anderson v. Mount
Clemens Pottery Co., 328 U.S. 680, 687-88 (1946)). An employee has met her
requisite burden of proof if she proves that she has performed work for which
she was improperly compensated and if she produces sufficient evidence to
show the amount and extent of that work as a matter of “just and reasonable



      1   29 U.S.C. § 207(a)(1) provides:

      Except as otherwise provided in this section, no employer shall employ any of
      his employees who in any workweek is engaged in commerce or in the
      production of goods for commerce, or is employed in an enterprise engaged in
      commerce or in the production of goods for commerce, 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.
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                                 No. 13-20186
inference.” Id. (citation omitted). “The burden shifts to the employer to come
forward with evidence of the precise amount of work performed or with
evidence to [negate] the reasonableness of the inference to be drawn from the
employee’s evidence.” Id. (citation omitted). “If the employer fails to produce
such evidence, the court may then award damages to the employee even though
the result may only be approximate.” Id. (citation omitted).
      Ihegword asserts that while working for HCHD she was told by her
supervisor, Anglin, that she was required to have her paperwork and filing
completed before she left work each day. According to Ihegword, however,
there were staffing shortages and nurses were often required to stay past their
shift and work overtime to complete their job duties. For this reason, Ihegword
was not always able to complete her paperwork by the end of her shift.
Ihegword also claims that because she often worked as Charge Nurse, she had
extra duties assigned to her in addition to her regular duties which made it
even more difficult to complete all of her duties before the end of the work day.
As a result, Ihegword asserts that she often worked in excess of forty hours
during a seven-day workweek.
      Additionally, however, Ihegword claims that HCHD management stated
during employee meetings that it discouraged overtime and required approval
before nurses were allowed to work overtime hours. Management approved
overtime for certain types of work such as meetings and training and generally,
overtime of less than one hour.       According to Ihegword though, Anglin
instructed nurses who needed to work more than an hour of overtime to clock
out and then complete their work, resulting in many hours of uncompensated
overtime.   Ihegword avers that she began keeping a detailed log of her
uncompensated overtime hours and stored the log in her locker but was never
permitted to retrieve her personal belongings from her locker after she was
terminated. Consequently, Ihegword estimates from memory alone that she
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                                 No. 13-20186
worked approximately twelve hours of uncompensated overtime a week, or four
hours at the end of each twelve-hour shift, typically working three shifts a
week.
        In response to Ihegword’s argument, HCHD points to Ihegword’s written
declaration in opposition to its motion for summary judgment wherein
Ihegword claims that she was instructed to clock out before completing her
work and often worked approximately four hours of overtime after each shift,
or twelve hours a week, and that she was paid for some but not all of her
overtime work. HCHD then points to Ihegword’s deposition testimony wherein
she claimed not to remember how often she worked overtime and that on the
days she remembers working overtime, it could have been “three or two or one”
hours. Additionally, in her deposition, Ihegword stated that she tried “as much
as possible not to show in [her time card reports] the extent that [she worked
overtime]” after clocking out. Moreover HCHD points to the time card reports
contained in the record which reflect that Ihegword’s regularly scheduled
workweek was usually less than forty hours per week and on a number of
occasions, was less than thirty hours per week. In conclusion, HCHD argues
that Ihegword failed to produce sufficient evidence of uncompensated overtime
or evidence that HCHD knew she performed overtime work for which she was
not paid.
        In his memorandum opinion and order, the district judge noted the
contradictions in Ihegword’s deposition testimony and her written
declaration. The district judge also cited to the declaration of Ihegword’s co-
worker Sheila Carter, who stated that she and Ihegword rarely worked past
their normal workday shifts, however, when they did so, it was on, and not
off, the clock. Another co-worker testified that she worked the shift following
Ihegword’s and only occasionally would Ihegword stay past her scheduled
shift into the following shift. The district judge then looked to the time card
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                                 No. 13-20186
reports evidencing that Ihegword rarely worked an entire forty-hour work
week, a prerequisite before an employee could begin working overtime, and
reasoned that the reports “soundly refuted” her allegations of clocking out
and continuing to perform uncompensated overtime work. Moreover, the
district judge noted the complete lack of evidence, other than Ihegword’s
unsubstantiated assertions speculated from memory, to prove that she
actually worked overtime for which she was not compensated. Finally, the
district judge pointed to Ihegword’s failure to produce sufficient evidence that
anyone at HCHD knew of the alleged uncompensated overtime Ihegword
claimed to have worked each week. Consequently, the district judge held
that Ihegword failed to raise a genuine issue of material fact that HCHD
permitted her to work overtime hours for which she was not paid. We agree.
As noted by the district judge, “an unsubstantiated and speculative estimate
of uncompensated overtime does not constitute evidence sufficient to show
the amount and extent of that work as a matter of just and reasonable
inference.” Ihegword v. Harris Cnty. Hosp. Dist., 929 F. Supp. 2d 635, 668
(S.D. Tex. 2013) (citing Harvill, 433 F.3d at 441); see also 29 U.S.C. §
207(a)(1). Accordingly, we hold that the district court did not err in granting
summary judgment in favor of HCHD.
                                      III.
      After considering the parties’ arguments as briefed on appeal, and after
reviewing the record, the applicable statutory and case law, and the district
court’s judgment and reasoning, we AFFIRM the district court’s summary
judgment in favor of Defendant-Appellee Harris County Hospital District and
adopt its analysis in full.




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