                                                                         FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                     UNITED STATES COURT OF APPEALS                   May 1, 2008
                            FOR THE TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                      Clerk of Court


    JAMES McGRATH,

                Plaintiff-Appellant,                    No. 07-1367
                                            (D.C. No. 1:06-cv-00224-MSK-CBS)
    v.                                                   (D. Colo.)

    CENTRAL MASONRY CORP.,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before MURPHY, McKAY, and GORSUCH, Circuit Judges.


         Plaintiff-appellant James McGrath sued his former employer, Central

Masonry Corporation (Central), for failure to pay overtime compensation in

violation of the Fair Labor Standards Act, 29 U.S.C. § 207 (FLSA), and also

asserted a claim under the Colorado Wage Claim Act, C.R.S. §§ 8-4-101 through

8-4-123, for Central’s failure to pay him the balance of a bonus upon his

separation from employment.


*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      The district court granted summary judgment for Central, and McGrath

appeals. We review the grant of summary judgment de novo, using the same

standard as that applied by the district court. Rodriquez v. Whiting Farms, Inc.,

360 F.3d 1180, 1184 (10th Cir. 2004). Thus, judgment “should be rendered if the

pleadings, the discovery and disclosure materials on file, and any affidavits show

that there is no genuine issue as to any material fact and that the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).

      On appeal, McGrath argues that, contrary to the holdings of the district

court, he had come forth with evidence of Central’s actual or constructive

knowledge that he had engaged in unpaid overtime work for purposes of his

FLSA claim, and that he had further established that the unpaid bonus constituted

“wages and compensation” for purposes of the Colorado Wage Claim Act. We

agree with the district court that McGrath has failed to show that the unpaid

bonus constituted wages and compensation, but we further hold that McGrath has

raised a genuine issue of material fact concerning Central’s knowledge of his

unpaid overtime. We therefore affirm in part and reverse and remand in part.

      With certain exceptions not relevant here, employers engaged in interstate

commerce are required by 29 U.S.C. § 207(a)(1) to pay overtime to employees

who work more than forty hours in a work week. In addition to showing that he

actually worked overtime in an amount that can be established by justifiable and

reasonable inference, a plaintiff proceeding under § 207(a)(1) must also show that

                                         -2-
the employer had actual or constructive knowledge of the overtime. Davis v.

Food Lion, 792 F.2d 1274, 1276 (4th Cir. 1986); see also McKnight v. Kimberly

Clark Corp., 149 F.3d 1125, 1130 (10th Cir. 1998) (holding that “failure to record

claimed time is fatal to a later claim for such, if the company has no reason to be

aware of the overtime” (emphasis added)). Thus, in order to withstand Central’s

motion for summary judgment on his FLSA claim, McGrath was required to show

that a genuine issue of material fact existed relative to whether Central knew or

should have known of his overtime work, even though McGrath failed to report

such work on his time sheets. See Davis, 792 F.2d at 1276.

      The district court found that McGrath’s self-reported timesheets did not

include the admittedly compensable time involved in attending mandatory

foremen meetings, mandatory Spanish classes, and the pick-up of employee

paychecks. Central’s president, Neal House, testified that he has no way of

knowing that an employee has worked overtime unless the employee requests

approval for the extra hours and then reports them on his timesheet. Because

McGrath did neither of these things, the district court held that Central had no

knowledge, either actual or constructive, that McGrath was not reporting his

actual hours and was actually working more than forty hours per week, or, stated

differently, that the mandatory meetings, classes, and paycheck pick ups were

requiring McGrath to work overtime. The court granted summary judgment to

Central on the overtime claim.

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      This case is complicated by a procedural irregularity in the district court.

Essentially, the problem arose because the parties fully briefed the summary

judgment motion before the deadline for discovery had passed. After movant

Central’s reply to its motion for summary judgment was filed and the summary

judgment motion was at issue, McGrath took two additional depositions which

yielded evidence establishing an issue of fact as to whether Central had

knowledge that McGrath was working uncompensated overtime. That evidence

consists of testimony from Central’s foremen supervisor and sole vice president,

Victor Curci, that he had received complaints from “quite a few” of Central’s

foremen, including McGrath, that they were being required to work

uncompensated overtime. Aplt. App. at 52. Curci testified that he did not discuss

the issue with Central’s president, Neal House, because Curci felt House’s mind

was closed on the subject and that his policy was not to pay for foremen

meetings. Id. at 54. Dawn Forst, Central’s office manager, also testified that

other foremen complained that they were not being compensated for attendance at

foreman meetings. Id. at 63.

      After McGrath brought this evidence to the attention of the district court in

the form of a supplemental response to Central’s motion for summary judgment,

Central moved to strike the pleading. Central argued that local rules do not

contemplate the filing of sur-replies or supplemental responses without leave of

the court and that McGrath had failed to confer with opposing counsel before

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filing the supplement as required by the district court’s local rule 7.1(A). D.C.

Colo. L. Civ. R. 7.1(A).

        The district court did not formally rule on these technical arguments,

concluding instead that “nothing within [the supplemental response] would

otherwise alter the Court’s disposition of the substantive summary judgment

motion.” Aplt. App. at 76. The court then denied Central’s motion to strike as

moot.

        As mentioned above, the district court held that McGrath had “failed to

come forward with facts establishing that [Central] had actual or constructive

knowledge that his self-reported timesheets did not include the time spent on

meetings and classes and picking up paychecks.” Id. at 81. While the district

court stated that it read the supplemental response, it did not mention any of the

evidence contained therein, and thus it did not address the deposition evidence

from Curci or Forst.

        Because the district court denied Central’s motion to strike, the evidence in

the supplemental response is part of the record on appeal. Further, neither party

on appeal argues the merits of the motion to strike, and both parties discuss

Curci’s testimony in their briefs. We thus see no prejudice to Central from this

court’s consideration of that evidence as part of its de novo review.

        In its brief on appeal, Central argues that Curci’s testimony does not

support a conclusion that McGrath, himself, complained about noncompensation

                                          -5-
for the foremen meetings and for picking up paychecks. Appellee Br. at 8-9. We

think this argument is hypertechnical and does not convey the spirit of Curci’s

testimony. The following is the relevant evidence:

            Q. (to Mr. Curci) Okay. During your time that you
            were supervising these ten foremen, was overtime
            compensation ever raised as an issue by any of the
            foremen?

            A. Yes.

            Q. Do you remember who specifically?

            A. There was probably quite a few. James McGrath, Mike
            Seabert.

            Q. Do you recall what Mr. Seabert’s complaints were –

            MR. FOWLER: Object –

            Q. (BY MR. REESE) — specifically?

            MR. FOWLER: Object to form.

            A. I don’t.

            Q. (BY MR. REESE). Okay. Let me ask you
            specifically: Do you recall any foreman, including
            Mr. McGrath, who complained to you about not being
            compensated for having to come in on Thursday
            afternoons and pick up paychecks?

            A. Repeat the question.

            Q. Sure. Did any foreman under your supervision or
            any that you’re aware of at Central Masonry, whether
            they were under your supervision or not, ever complain
            about not being compensated for the time necessary to


                                        -6-
go back to the office on Thursdays to pick up paychecks?

A. They did complain.

Q. Okay. More than one person complained?

A. Yes.

Q. And did you, in your experience at Central Masonry,
ever hear any of the foremen, whether under your
supervision or not, complain about not being
compensated for the foremen meetings on Thursday
evenings once a month?

A. Yes.

Q. More than one complaint?

A. More than one.

Q. When you heard that complaint, what did you do?
Did you report it to Mr. House?

A. No.

Q. Why?

A. It’s – you’re arguing with somebody you’ll never
win.

Q. What do you mean by that?

A. It’s just – it’s his way. I mean, it’s, you know, I
don’t know what to say. I mean, it’s – when he pretty
much says, This is the way it is, that’s the way it is, and
he doesn’t bend very much at all.
Q. Okay. At any time, then, did he tell you that, you
know, foremen meetings were a part of their job and
they’re not going to be compensated for them?

A. I don’t remember him saying that, no.

                             -7-
            Q. Okay. Well, when you say that, you know, you
            didn’t want to get into an argument, I assume that at
            some point you must have gone to him and said, you
            know, The foremen are complaining about not being
            compensated for the meetings, and he gave you his
            response, and you said, I’m not going to argue with you.

            That’s what I assumed. Is that what happened –

            A. No.

            Q. – or did you ever raise –

            A. I never raised the issue.

            A. Okay. And why, specifically, as a vice president and
            as the foremen supervisor, when they complained to you
            about not being compensated for foremen meetings, and
            specifically for the record, why did you not take that
            complaint to Mr. House?

            A. I just didn’t –

            MR. FOWLER: Object to form.

            A. I just didn’t think I could change his mind.

            Q. (BY MR. REESE). Okay. Did you believe that his
            mind was set on the idea that foremen were not to be
            compensated for foremen meetings? Is that the
            impression you had?

            A. Right.

Aplt. App. at 52-54.

      In addition to this evidence, McGrath testified that the last time he reported

overtime, House screamed at him and asked him whether he had given himself “a


                                           -8-
fucking raise.” Aplee. Supp. App. at 44. House then told McGrath he was not to

bill more than forty hours per week. Id. at 42-45. After this incident, Central

instituted a policy requiring approval for overtime, but McGrath never made such

a request. Id. at 44-45. “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.” Harvill v. Westward

Commc’ns, 433 F.3d 428, 441 (5th Cir. 2005) (quotation and alteration omitted).

We view this evidence as sufficient to establish a genuine issue of material fact as

to Central’s knowledge regarding whether McGrath was being paid for his

overtime.

      Andrea J. Kershner’s motion to withdraw as attorney for McGrath is

GRANTED. The judgment of the district court is AFFIRMED in part and

REVERSED in part, and this case is remanded for further proceedings consistent

with this order and judgment.


                                               Entered for the Court



                                               Monroe G. McKay
                                               Circuit Judge




                                         -9-
