               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 16a0570n.06

                                          No. 16-1052
                                                                                   FILED
                         UNITED STATES COURT OF APPEALS                        Oct 13, 2016
                              FOR THE SIXTH CIRCUIT                       DEBORAH S. HUNT, Clerk

STEVEN ROBINSON,                                      )
                                                      )
       Plaintiff-Appellant,                           )
                                                      )   ON APPEAL FROM THE UNITED
v.                                                    )   STATES DISTRICT COURT FOR
                                                      )   THE EASTERN DISTRICT OF
ROBERTS HOTELS MANAGEMENT                             )   MICHIGAN
DETROIT, LLC; MICHAEL V. ROBERTS,                     )
JR.,                                                  )
                                                      )
       Defendants-Appellees.                          )


       BEFORE: MERRITT, ROGERS, and KETHLEDGE, Circuit Judges.

       ROGERS, Circuit Judge.       Steven Robinson has sued his former employer, Roberts

Hotels, for unpaid overtime under the Fair Labor Standards Act. After conducting a bench trial,

the magistrate judge concluded that Robinson failed to produce sufficient credible evidence to

prove that he worked overtime hours. Because Robinson relied primarily on his own testimony,

which the magistrate judge found not credible, and because Robinson’s testimony contradicted

his own documentary evidence, the magistrate judge did not clearly err.

       From September 24, 2012, until July 10, 2014, Stephen Robinson worked for Roberts

Hotels Management Detroit (“RHMD”) as a maintenance worker at the Roberts Riverwalk

Hotel. R. 28, PageID #164. Although RHMD now stipulates that Robinson was not a salaried

employee, and therefore agrees that Robinson was subject to FLSA’s overtime requirements,

R. 32, PageID #180, RHMD did not contemporaneously record how many hours Robinson

worked per week because RHMD considered Robinson a salaried employee at the time, R. 28,
No. 16-1052, Robinson v. Roberts Hotels Mgmt. Detroit, LLC

PageID #164–65. After his termination, Robinson sued RHMD,1 alleging that he worked an

average of fifty-two hours per week throughout his employment, R. 1, PageID #3, and that

RHMD failed to pay him for the overtime hours, violating the Fair Labor Standards Act

(“FLSA”), id.; see 29 U.S.C. § 207(a). The parties consented to bench trial by a magistrate

judge. R. 13.

        At trial, Robinson failed to prove that he worked overtime. To recover unpaid overtime

compensation under the FLSA, the employee “must prove, by a preponderance of the evidence,

that he ‘performed worked for which he was not properly compensated.’” Moran v. Al Basit

LLC, 788 F.3d 201, 205 (6th Cir. 2015) (quoting Anderson v. Mt. Clemens Pottery Co., 328 U.S.

680, 687 (1946)). The employee must satisfy that burden even where, as here, the employer has

failed to record hours as required by the FLSA. See Mt. Clemens Pottery Co., 328 U.S. at 687.

Robinson did not carry that burden because, as the magistrate judge noted, Robinson “made

bare-bones evidentiary presentations.” R. 28, PageID #163. In total, Robinson offered his own

testimony, his wife’s testimony, and his barely legible handwritten notes of what work he did on

which days.

        While Robinson testified that he worked ten-hour days on five or more days per week, his

testimony was weak. For example, he testified that he worked Wednesdays through Sundays,

R. 32, PageID #214, but his own notes showed that he worked Tuesdays through Saturdays, see

R. 24-2. On appeal, Robinson brushes off the contradiction as “confusion while on the witness

stand.” Robinson Brief at 20. While the cause of the contradiction may indeed be Robinson’s

temporary confusion, it may also be Robinson’s defective memory, desire to inflate hours, or

attempt to fabricate a story.        The most likely explanation depends partially on Robinson’s


1
 Robinson also sued RHMD’s agent, Michael V. Roberts, Jr., but abandoned his claims against Roberts before trial.
R. 28, PageID #163 n.1.

                                                      -2-
No. 16-1052, Robinson v. Roberts Hotels Mgmt. Detroit, LLC

demeanor on the witness stand, which the magistrate judge could observe, but which we cannot.

The magistrate judge cited this inconsistency and other questionable aspects of Robinson’s

testimony, R. 28, PageID #167 n. 8, and concluded that Robinson’s testimony was “simply not

credible.” R. 28, PageID #168. That conclusion receives “substantial deference.” United States

v. Aloi, 9 F.3d 438, 440 (6th Cir. 1993).

         Ms. Robinson’s testimony hardly added anything.                        She testified, as Mr. Robinson

testified, that Mr. Robinson typically worked three weekdays: Wednesdays, Thursdays, and

Fridays. R. 32, PageID #267. But Mr. Robinson’s notes indicated otherwise. See R. 24-2.

She also testified that Mr. Robinson was called to work beyond his shift “all the time.” R. 32,

PageID #267. But Robinson’s notes only showed a handful of weeks in which he worked more

than five days. See R. 24-2. For those reasons, the magistrate judge found Ms. Robinson’s

testimony to be “not credible.”              R. 28, PageID #169.             That determination, too, receives

“substantial deference.” Aloi, 9 F.3d at 440.

         Robinson’s handwritten notes were incomplete, often illegible, and silent on the most

critical issues. At trial, Robinson’s counsel stipulated that the notes never stated, “[M]anager

asked me to stay late” or “Manager asked me to come in,” and also stipulated that the notes did

not specify otherwise that “any manager . . . made a specific request” to Robinson to work off-

shift. R. 32, PageID #238.2 Furthermore, while the notes stated the days on which Robinson

worked, and while they generally specified the time when Robinson reported to work, they never

specified when Robinson left work. See R. 24-2; R. 34; R. 35. Even if they are unconditionally


2
  Contrary to that stipulation, Robinson’s handwritten notes do indicate that RHMD asked Robinson to come in to
work on non-work days on at least October 29, 2012, December 11, 2012, January 21, 2013, May 13, 2013, and
April 21, 2014. R. 34, PageID #439, #478; R. 35, PageID #512, #526, #537. However, the stipulation controls.
Christian Legal Soc. Chapter of the University of California v. Martinez, 561 U.S. 661, 677 (2010) (quoting 83
C.J.S., Stipulations § 93 (2000)) (“[Factual stipulations are] binding and conclusive . . . , and the facts stated are not
subject to subsequent variation. So, the parties will not be permitted to deny the truth of the facts stated, . . . or to
suggest, on appeal, that the facts were other than as stipulated . . . .”).

                                                          -3-
No. 16-1052, Robinson v. Roberts Hotels Mgmt. Detroit, LLC

believed, the notes therefore fail to prove that Robinson worked more than forty hours in any

week. Lastly, while the notes show that Robinson worked more than five days per week on

some weeks, see R. 24-2, they also show that Robinson sometimes came in late to work to

compensate himself for the additional hours he had worked on previous days. The magistrate

judge noted one such entry in Robinson’s notes. R. 28, PageID #167 n. 8 (quoting R. 35, PageID

#513). There are at least four more. See R. 35, PageID #500 (“10/1[/2012] Reported for duty

@0800 for 0700 – 1500 1hr difference due to coming in on 9/29 to finish repairing kitchen

freezer fan.”); id. at PageID #508 (“10/20[/2012] Reported for duty @ 0900 due to Eagle

breaking down (Timing belt) issues + comp time.”); id. at PageID #512 (“10/30[/2012] Reported

for duty @0900 from comp. time.”); id. at PageID #513 (“10/31[/2012] Reported for duty

@1000 after calling Mr. J. Robinson about comp. time. Upon arrival Mr. J. Robinson informed

me that they handle comp time differently around this facility which we had [illegible] of

[illegible] communication from using it as you go along.           Then we discussed Ms. S.

Donaldson[’s] feelings on this issue . . . .”).

        Robinson’s other arguments on appeal are unconvincing. While Robinson argues that the

district court erred by “requiring” Robinson to prove specific weeks in which Robinson worked

overtime, Robinson Brief at 29, the district court required no such proof. At trial, Robinson

maintained that he worked overtime “pretty much every week,” R. 32, PageID #228, and when

pressed to specify a particular week, Robinson responded that he could not pinpoint “right off

hand” a specific week, id. at PageID #229. In its opinion, the district court found that Robinson

“was unable to identify any specific workweek during which he worked more than forty hours.”

R. 28, PageID #167. Robinson’s testimony may have been more credible if he had testified, for

example, that he recalled particularly busy weeks in which particular problems forced him to

stay at work beyond his normal shifts. The district court found that Robinson did not so testify.

                                                  -4-
No. 16-1052, Robinson v. Roberts Hotels Mgmt. Detroit, LLC

But by finding that, the district court did not require Robinson to catalogue specific weeks when

he worked overtime. The district court correctly stated that Robinson’s burden was to “prove[]

that he has in fact performed work for which he was improperly compensated,” not to prove that

he worked those improperly-compensated hours on specified weeks. R. 28, PageID #170.

       Similarly, while Robinson also argues that the district court erred by “requiring”

Robinson to produce various pieces of evidence, Robinson Brief at 29–32, the district court

required no such thing. The district court noted that Robinson failed to produce several pieces of

evidence that would have strengthened Robinson’s case. R. 28, PageID #167–68. But to note

the lack of certain pieces of supporting evidence is not to have required production of those

specific pieces of evidence. Robinson had the burden of proof. A district court may point to

missing evidence to explain why Robinson failed to carry the burden, without implying that

Robinson’s proof must have included those missing pieces.

       There are no grounds for reversal in this case. The district court concluded that Robinson

“has failed to prove by a preponderance of the evidence that RHMD violated the FLSA.” R. 28,

PageID #172. The district court found Robinson’s testimony and his wife’s testimony not

credible. Id. at PageID #168, 169. The district court also found Robinson’s notes incomplete

and inconsistent with the testimonies. Id. at PageID #165, 167. Giving “substantial deference”

to the district court’s determination that Mr. Robinson’s testimony and Ms. Robinson’s

testimony were not credible, Aloi, 9 F.3d at 440, the district court’s conclusion is eminently

plausible. “If the district court’s account of the evidence is plausible in light of the record

viewed in its entirety, the court of appeals may not reverse it even though convinced that had it

been sitting as the trier of fact, it would have weighed the evidence differently.” Anderson v.

City of Bessemer City, 470 U.S. 564, 573–74 (1985).

       The district court’s judgment is affirmed.

                                              -5-
