                In the Missouri Court of Appeals
                        Eastern District
                                                  DIVISION III

SHAUN STANBROUGH,                                    )            No. ED100567
                                                     )
                    Appellant,                       )            Appeal from the Circuit Court
                                                     )            of St. Louis County
vs.                                                  )
                                                     )            Honorable Michael T. Jamison
VITEK SOLUTIONS, INC.,                               )
                                                     )
                    Respondent.                      )            FILED: July 8, 2014

                                                   Introduction

           Appellant Shaun Stanbrough (“Stanbrough”) appeals from the entry of summary

judgment in favor of Vitek Solutions, Inc. (“Vitek”). Stanbrough alleged in a two-count petition

that Vitek violated the Missouri Minimum Wage Law (“MMWL”) by failing to pay overtime

compensation he was due and that Vitek breached its contract with him and violated Section

290.1001 by unilaterally decreasing his pay without notice. Vitek filed a motion for summary

judgment claiming that Stanbrough was estopped from bringing a claim for unpaid overtime

because Stanbrough submitted daily timesheets that he certified as true and accurate and Vitek

relied on the accuracy of those timesheets. Vitek also argued it was undisputed that its pay

schedule changed only once during Stanbrough’s employment and that Stanbrough received

1
    All statutory references are to RSMo. 2000.
notice of the change, which increased his pay. The trial court granted summary judgment on

both counts for Vitek.

       On appeal, Stanbrough claims that the trial court erred in granting summary judgment for

Vitek because a genuine dispute exists as to the facts necessary to support Vitek’s affirmative

defense of estoppel. Stanbrough also claims the trial court erred in entering summary judgment

in favor of Vitek on his claim for breach of contract and violation of Section 290.100 because he

provided evidence to establish a genuine issue of fact as to whether Vitek unilaterally decreased

his pay without 30 days’ notice. Because the summary judgment evidence in the record

establishes the existence of a genuine issue of material fact as to both of Stanbrough’s claims, we

reverse the judgment of the trial court and remand this matter for trial.

                                  Factual and Procedural History

       Viewed in the light most favorable to the non-moving party, the record contains the

following uncontroverted facts. Stanbrough worked as a technician for Vitek from January 1,

2009, until November 10, 2010. As a technician for Vitek, Stanbrough repaired or installed

cable television, internet services, and telephone services for Charter Communications, Inc.

(“Charter”) customers in the St. Louis area. Because of the nature of Stanbrough’s job, he often

worked outside of Vitek’s corporate offices in the homes of Charter customers. Stanbrough’s

route, the number of customers he serviced, the type of installation or repairs he performed, and

the complexity of any particular job he completed varied from day to day.

       Stanbrough was required to submit timesheets and self-report the hours he worked each

day. During the course of his employment with Vitek, Stanbrough submitted 424 daily, self-

reported timesheets, signing all but six of them. Beneath the signature line was a sentence

stating, “I represent the above information is true and accurate.” Vitek paid Stanbrough for all of



                                                  2
the hours that Stanbrough recorded and submitted on his daily timesheets, including overtime for

hours he reported working in excess of 40 hours per week. Stanbrough reported on his

timesheets that he worked in excess of 40 hours per week for 16 of the 94 weeks he worked for

Vitek. Stanbrough reported working less than 30 hours per week for 37 weeks, less than 40

hours per week for 40 weeks, and exactly 40 hours for one week.

        Vitek paid Stanbrough on a “piece-rate” basis in accordance with two published

schedules, dated January 1, 2009 (“2009 schedule”), and January 3, 2010 (“2010 schedule”).

The piece-rate schedules prescribed the amount a technician was to be paid for performing

specific installation or repair tasks. On a weekly basis, a technician’s total piece-rate earnings

were added up and divided by the total number of hours worked in order to determine the

technician’s hourly rate for that week. If the technician worked overtime, the employee was

entitled to his or her hourly rate of pay for all hours worked plus an additional 50 percent of that

hourly rate for any hours worked in excess of 40 hours per week. Prior to the 2010 schedule

taking effect, Vitek provided Stanbrough with a copy of the updated piece rates. On December

4, 2009, Stanbrough signed and dated a written acknowledgment of his receipt and

understanding of the updated schedule. The 2010 schedule provided for either the same or

higher piece rates when compared with the 2009 schedule.

        On December 22, 2011, Stanbrough filed a First Amended Petition for Damages against

Vitek and two of its executives: Steve Tihen (“Tihen”) and Kevin Schaefer (“Schaefer”)

(collectively, “Defendants”).2 In his petition, Stanbrough first alleged that Defendants violated

the MMWL by failing to pay him overtime compensation he had earned. Stanbrough claimed

that Defendants routinely deducted 30 minutes to an hour from his daily timesheet for a work


2
  The petition also named Suzanne Schaefer as a defendant, but Stanbrough later consented to her dismissal from the
lawsuit with prejudice.

                                                        3
break, even if he did not take a break. Stanbrough additionally alleged that after finishing his

last scheduled service call, he was required to stay near his vehicle on his assigned route until 5

p.m. However, Defendants routinely did not count this “remain on route” time in determining

the number of hours Stanbrough worked for the purposes of paying overtime. Stanbrough

claimed that by undercounting the hours he worked, Defendants knowingly and intentionally

failed to pay him overtime in violation of the MMWL. Stanbrough also brought a claim for

breach of contract, alleging that Vitek unilaterally and without notice decreased his piece-rate

pay in violation of Section 290.100.

       In its answer to Plaintiff’s First Amended Petition, filed January 30, 2012, Vitek raised

the affirmative defense of estoppel with regard to Stanbrough’s claim for unpaid overtime. On

January 25, 2013, Defendants filed a motion for summary judgment also based on the theory of

estoppel. In their motion, Defendants claimed that Stanbrough submitted 424 daily timesheets

that documented all of the hours Stanbrough attested he had worked each day. Stanbrough

signed all but six of the timesheets directly above a sentence that read “I represent the above

information is true and accurate.” The Defendants averred it was undisputed that they relied

upon Stanbrough’s daily timesheets in order to calculate his pay, Stanbrough was paid for all of

the hours he submitted, and they neither knew nor had reason to know that the hours Stanbrough

recorded on his daily timesheets were inaccurate or false. Accordingly, Defendants argued that

these undisputed facts estopped Stanbrough from seeking recovery for any overtime hours that

he did not record on his timesheets. As to Stanbrough’s claim that Defendants decreased his

piece-rate pay without notice, Defendants noted the facts were uncontroverted that during

Stanbrough’s employment, the piece rates changed only once, Stanbrough received 30 days’

notice of the change, and the piece-rate compensation either stayed the same or increased.



                                                 4
       Stanbrough filed suggestions in opposition to Defendants’ motion for summary

judgment, which included Stanbrough’s sworn affidavit. In his affidavit, Stanbrough stated that

J.R. Payne, a Vitek executive, told Stanbrough’s supervisors, Tom Mahaney, Jeremy Huff, and

Matt Hammond, not to allow Stanbrough to include time spent performing administrative work

at the Vitek office on his timesheets. Stanbrough also stated in his affidavit that Mahaney, Huff,

and Hammond instructed him to inaccurately record three specific segments of daily

compensable time. First, Stanbrough stated that he was instructed to deduct time for a meal

break from his daily time sheet, regardless of whether he took a meal break or not. On days that

his timesheet indicated at least eight hours of work, he was told to record his meal break as one

hour. On days that Stanbrough worked between four hours and eight hours, the meal break was

to be recorded as 30 minutes. If Stanbrough worked less than four hours, no break was required

to be recorded. Stanbrough stated in his affidavit that Huff and Mahaney also told him that

Stanbrough’s drive time between jobs should be considered his meal break, even if he ate while

he was driving and did not actually take a meal break. On two or three occasions when

Stanbrough turned in a completed time sheet that did not include a meal break, Stanbrough stated

in his affidavit that Huff returned the timesheet to Stanbrough and demanded that he deduct time

for an unpaid meal break. Because Huff was his supervisor, Stanbrough complied with his

demands. Second, Stanbrough stated in his affidavit that he was instructed not to include on his

timesheets any of the required “remain on route” time spent waiting for additional work orders

between the completion of his last job and 5 p.m. Third, Stanbrough stated in his affidavit that

his supervisors instructed him not to record any time worked prior to arriving at his first assigned

job in the field, despite the fact that he was required to report to the Vitek office by 7:30 a.m. to

pick up his equipment for the day. Stanbrough also averred in his affidavit that he questioned



                                                  5
Huff several times as to why he was not receiving the full piece rates due to him. Stanbrough

claimed that Huff told him his pay was based on what Charter paid Vitek.

          In his suggestions in opposition to summary judgment, Stanbrough acknowledged that

he provided no evidence that either Tihen or Schaefer controlled Stanbrough’s supervisors or

directed them to instruct Stanbrough to underreport his hours. Stanbrough conceded that

summary judgment in favor of Tihen and Schaefer was appropriate; accordingly, the trial court

granted summary judgment in favor of Tihen and Schaefer. Upon review of the record and

applicable law, the trial court also granted summary judgment in favor of Vitek on both claims in

Stanbrough’s petition. This appeal follows.3

                                                 Points on Appeal

         Stanbrough presents two points on appeal. In his first point on appeal, Stanbrough argues

that the trial court erred in entering summary judgment in favor of Vitek on his MMWL claim.

Specifically, Stanbrough argues that even though he did not record overtime hours on his

timesheets, he is not estopped from claiming unpaid overtime wages because Vitek’s actions

squelched his truthful reports of overtime. In his second point on appeal, Stanbrough claims the

trial court erred in entering summary judgment in favor of Vitek on his claim for breach of

contract and violation of Section 290.100 because he provided evidence to establish a genuine

issue of fact as to whether Vitek unilaterally decreased his pay without 30 days’ notice.




3
  Initially, we address the merits of Vitek’s motion to dismiss or, in the alternative, to strike Stanbrough’s brief for
failure to comply with Rule 84.04(c). Vitek claims that Stanbrough failed to present a “fair and concise statement of
the facts relevant to the questions presented for determination without argument.” Rule 84.04(c). While it is true
that failure to comply with Rule 84.04 may constitute grounds to dismiss an appeal, our review is discretionary.
Because we are able to discern the relevant facts from the record, Vitek’s motion to dismiss or, in the alternative, to
strike Stanbrough’s brief is denied.

                                                           6
                                        Standard of Review

       This Court reviews the grant of summary judgment de novo and gives no deference to the

trial court’s findings or determinations. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply

Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). We review the record in the light most favorable

to the party against whom judgment was entered and give the non-movant the benefit of all

reasonable inferences from the record. Id.; Calvert v. Plenge, 351 S.W.3d 851, 854-55 (Mo.

App. E.D. 2011). We will affirm where the pleadings, depositions, affidavits, answers to

interrogatories, exhibits, and admissions establish that no genuine issue of material fact exists

and the moving party is entitled to judgment as a matter of law. Calvert, 351 S.W.3d at 855.

                                            Discussion

I.     Stanbrough’s Claim for Unpaid Overtime

       Stanbrough’s first point on appeal addresses Vitek’s argument that Stanbrough is

estopped from raising his claim for unpaid overtime because he seeks payment for hours not

reported on his timesheets. Stanbrough claims that estoppel does not bar his claim, and

consequently cannot support the trial court’s grant of summary judgment because his supervisors

at Vitek encouraged him to file inaccurate timesheets. In order to address this issue, we first

examine the rules supporting a proper grant of summary judgment.

       A.      Summary Judgment

       Under Rule 74.04(c), a defending party may establish a right to summary judgment by

demonstrating: (1) facts negating any one of the elements of the non-movant’s claim; (2) “that

the non-movant, after an adequate period for discovery, has not been able and will not be able to

produce sufficient evidence to allow the trier of fact to find the existence of any one” of the

elements of the non-movant’s claim; or (3) “that there is no genuine dispute as to the existence of



                                                  7
the facts necessary to support movant’s properly pleaded affirmative defense.” Goerlitz v. City

of Maryville, 333 S.W.3d 450, 453 (Mo. banc 2011) (quoting ITT Commercial Fin. Corp., 854

S.W.2d at 381). “Each of these three methods individually establishes the right to judgment as a

matter of law.” Id. (citation omitted).

       In this case, Vitek claims the summary judgment evidence before us supports its

affirmative defense of estoppel. Therefore, we must determine whether the record contains any

genuine issues of fact which, if proven, could defeat Vitek’s affirmative defense. For purposes

of summary judgment, a “genuine issue” exists where the record reasonably supports two

plausible, but contradictory, accounts of the essential facts. Id. at 382; Phillips v. CNS Corp.,

135 S.W.3d 435, 440 (Mo. App. W.D. 2004). “The rule that the non-movant is ‘given the

benefit of all reasonable inferences’ means that if the movant requires an inference to establish

his right to judgment as a matter of law, and the evidence reasonably supports any inference

other than (or in addition to) the movant’s inference, a genuine dispute exists . . . .” ITT

Commercial Fin. Corp., 854 S.W.2d at 382.

       When a genuine issue of material fact exists, summary judgment should be denied.

Phillips, 135 S.W.3d at 440. “It is not the truth of these facts which matter, but whether the facts

are disputed.” Id. (quoting Rogers v. Frank C. Mitchell Co., 908 S.W.2d 387, 389 (Mo. App.

E.D. 1995)); see also ITT Commercial Fin. Corp., 854 S.W.2d at 382 (the trial court must look

simply for the existence, not the extent, of genuine disputes). “Therefore, where the trial court,

in order to grant summary judgment, must overlook material in the record that raises a genuine

dispute as to the facts underlying the movant's right to judgment, summary judgment is not

proper.” ITT Commercial Fin. Corp., 854 S.W.2d at 378. “Questions of fact should be

presented to the jury.” Phillips, 135 S.W.3d at 440 (citation omitted).



                                                  8
       B.      The FLSA and Estoppel

       Under Missouri law, no employee shall be employed for a workweek longer than 40

hours unless such employee receives compensation for his or her employment in excess of 40

hours at a rate not less than one and one-half times his or her regular rate. Section 290.505.1.

Missouri law regulating overtime compensation is to be interpreted in accordance with the Fair

Labor Standards Act (“FLSA”), 29 U.S.C. Section 201, et seq. Section 290.505.4.

       To establish a claim under the FLSA for unpaid overtime, an employee must prove that

he performed work for which he was not compensated and that the employer had knowledge of

that work. Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 686-87 (1946), superseded by

statute on other grounds as stated in IBP, Inc. v. Alvarez, 546 U.S. 21, 41 (2005). Knowledge

may be actual or constructive; thus, an employer is liable for employees’ unpaid overtime work

if the employer knew or should have known they were working overtime. Hertz v. Woodbury

County, Iowa, 566 F.3d 775, 781 (8th Cir. 2009). An employer who knows that an employee is

working overtime “cannot stand idly by and allow an employee to perform overtime work

without proper compensation.” Forrester v. Roth’s I.G.A. Foodliner, Inc., 646 F.2d 413, 414

(9th Cir. 1981).

       Although the employer may be held liable for unreported work hours, it is well

established in FLSA cases that an employee is estopped from making a claim for unpaid

overtime when the plaintiff is at fault for failing to record his hours worked, the employer is

otherwise not at fault for such failure by the plaintiff, and the employer otherwise lacks

knowledge of such work performed by the plaintiff. Id. at 414-15; see also Brumbelow v.

Quality Mills, Inc., 462 F.2d 1324, 1327 (5th Cir. 1972) (employee was estopped from claiming

unpaid overtime where employee was at fault for not recording overtime hours and admitted that



                                                 9
no supervisor instructed her to falsify her timesheets); Haviland v. Catholic Health Initiatives-

Iowa Corp., 729 F.Supp.2d 1038, 1076 (S.D. Iowa 2010) (employees were estopped from raising

overtime claims when they failed to use employer’s system for reporting unpaid time, thereby

preventing the employer from acquiring knowledge of uncompensated overtime hours).

        However, it is equally recognized in FLSA cases that an employer will not be permitted

to disclaim knowledge of unreported overtime hours worked when the employer’s actions

squelch truthful reports of hours worked, or where the employer encourages artificially low

reporting. Allen v. Bd. of Pub. Educ. For Bibb County, 495 F.3d 1306, 1319 (11th Cir. 2007);

see also McConnell v. Thomson Newspapers, Inc., 802 F.Supp. 1484, 1506-07 (E.D. Tex. 1992)

(employee was not estopped from raising FLSA claim for unpaid overtime when he testified that

management told him not to keep records of overtime hours worked). “[O]nce an employer

knows or has reason to know that an employee is working overtime, it cannot deny compensation

simply because the employee failed to properly record or claim his overtime hours.” Kuebel v.

Black & Decker Inc., 643 F.3d 352, 363 (2d Cir. 2011). “[W]here the employee's falsifications

were carried out at the instruction of the employer or the employer's agents, the employer cannot

be exonerated by the fact that the employee physically entered the erroneous hours into the

timesheets.” Id.

        In this case, Vitek sought summary judgment on the basis of its affirmative defense of

estoppel. Vitek argued that Stanbrough was estopped from seeking overtime pay for hours he

allegedly worked but failed to record on his daily timesheets. Vitek also claimed it had no

knowledge of any overtime work performed by Stanbrough for which he was not compensated.4


4
  The only evidence in the record to support Vitek’s claim that it had no knowledge of Stanbrough’s uncompensated
overtime hours is the affidavits of Kevin Schaefer and Steve Tihen, Vitek executives, who both state that neither
they nor Vitek knew or had reason to know that the hours of work recorded by Stanbrough on his daily timesheets
were inaccurate or untruthful.

                                                       10
Therefore, because Stanbrough was paid for all of the overtime hours that he recorded, and

because Vitek allegedly neither knew nor had reason to know that the hours Stanbrough recorded

were inaccurate, Vitek argued Stanbrough was estopped from pursuing his claim for overtime.

The trial court granted Vitek’s motion for summary judgment without explanation.5

        To be entitled to summary judgment on its affirmative defense of estoppel, Vitek must

show that there is no genuine dispute as to the existence of facts necessary to support the

affirmative defense. See Goerlitz, 333 S.W.3d at 453 (when a defendant moves for summary

judgment based on an affirmative defense, it must show there is no genuine dispute as to the

existence of each of the facts necessary to support the properly pleaded affirmative defense).

        Stanbrough insists Vitek cannot meet this burden because there is a genuine issue of

material fact as to Vitek’s knowledge of the inaccuracy of Stanbrough’s timesheets. In response

to Vitek’s motion for summary judgment, Stanbrough filed an affidavit alleging that his

supervisors specifically told him not to accurately report his time. Because Stanbrough’s

supervisors are agents of Vitek, their knowledge regarding matters within their scope of

employment and authority is imputed to Vitek. See Iota Mgmt. Corp. v. Boulevard Inv. Co., 731

S.W.2d 399, 410 (Mo. App. E.D. 1987) (“The knowledge of an agent of a corporation regarding

matters within the agent's scope of employment and authority and to which his employment or

authority extends is imputed to the corporate principal.”).

        We are required to give Stanbrough the benefit of all reasonable inferences. In doing so,

we find Stanbrough’s affidavit reasonably supports an inference that Vitek knew Stanbrough was

working hours for which he was not paid. Because Vitek disputes this inference, a genuine issue

of material fact exists that must preclude summary judgment. See ITT, 854 S.W.2d at 382 (a

5
 Where the trial court does not state its reasoning for granting summary judgment, we presume the court based its
decision on the grounds asserted in the movant’s motion. Reed v. McDonald's Corp., 363 S.W.3d 134, 138 (Mo.
App. E.D. 2012).

                                                        11
“genuine issue” exists where the record reasonably supports two plausible, but contradictory,

accounts of the essential facts); Phillips, 135 S.W.3d at 440 (when facts are disputed, regardless

of the truth of the facts, the movant’s motion for summary judgment should be overruled).

       Vitek, however, argues that we may not consider Stanbrough’s affidavit as summary

judgment evidence. Vitek asserts that the affidavit is legally insufficient to create a genuine

dispute as to whether Stanbrough worked any overtime hours beyond those he self-reported or

whether Vitek squelched his truthful reports of overtime. As support for this proposition, Vitek

maintains that Stanbrough’s affidavit is too generalized, speculative, and self-serving; contains

hearsay and lacks foundation; and is a disingenuous attempt to create a sham issue of fact. We

examine each of Vitek’s arguments in turn.

       1. Generalized, Speculative Affidavit

       Vitek contends that Stanbrough’s affidavit contains generalized, speculative, and self-

serving statements regarding the days and hours he worked in a typical workweek. Vitek posits

that Stanbrough’s generalized, speculative statements are legally insufficient to support a

reasonable inference that he worked any more hours than he recorded on his timesheets. We

disagree.

       In order to overcome a motion for summary judgment, a party must “by affidavits or

otherwise, set forth specific facts showing a genuine issue for trial.” St. Charles County v.

Dardenne Realty Co., 771 S.W.2d 828, 830 (Mo. banc 1989). Affidavits in opposition to

motions for summary judgment must be made on personal knowledge, set forth facts as would be

admissible in evidence, and show that the affiant is competent to testify. Syngenta Crop Prot.,

Inc. v. Outdoor Equip. Co., 241 S.W.3d 425, 428 (Mo. App. E.D. 2007). Generally, an affiant

who fails to assert specific facts and relies only upon mere doubt and speculation fails to raise



                                                 12
any issue of material fact. Id. (citing Kellog v. Kellog, 989 S.W.2d 681, 687 (Mo. App.

E.D.1999)). “Conclusory allegations are not sufficient to raise a question of fact in summary

judgment proceedings.” Id.

       Here, Vitek’s argument fails because Stanbrough’s affidavit contains specific allegations,

based on Stanbrough’s personal knowledge, that create a genuine dispute as to Vitek’s

knowledge of overtime hours worked. The affidavit alleges that three named supervisors

instructed him to deduct time for a meal break even if he did not actually take a break; to not

record any “remain on route” time; and to not record any time between 7:30 a.m. and his first

assigned job in the field. Stanbrough’s attestations are not conclusory or speculative, but rather

contain specific facts from which a reasonable juror could conclude that Stanbrough performed

work for which he was not compensated.

       We acknowledge that the number of hours Stanbrough alleges in his affidavit that he

worked but was not paid is inexact. However, given the nature of Stanbrough’s claims, we do

not hold him to the level of specificity as suggested by Vitek. Instead, Stanbrough is permitted

by law to present evidence of the number of hours he worked as a matter of just and reasonable

inference.

       An employee who makes a claim for unpaid wages under the FLSA bears the burden of

proving that he performed work for which he was not properly compensated. Anderson, 328

U.S. at 686-87. It is the duty of the employer to keep proper records of employee wages and

hours. Id. at 687. The employer’s duty to maintain accurate records of its employees’ hours is

non-delegable, even where the employee is required to submit his own timesheets. Kuebel, 643

F.3d at 363. If the employer has kept accurate records of the employee’s hours, the employee

can easily meet his burden by securing production of those records. Anderson, 328 U.S. at 687.



                                                13
However, if the employer’s records are inaccurate and prevent the employee from proving the

precise extent of uncompensated work, the solution is not to penalize the employee, as such a

result would run contrary to the “remedial nature” of the FLSA. Id.; Kuebel, 643 F.3d at 363.

“To place the burden on the employee of proving damages with specificity would defeat the

purpose of the FLSA where the employer's own actions in keeping inadequate or inaccurate

records had made the best evidence of such damages unavailable.” Brown v. Family Dollar

Stores of IN, LP, 534 F.3d 593, 595 (7th Cir. 2008).

       It is well established that where the employer’s records are unreliable or inaccurate, a

relaxed evidentiary standard as to the measure of the employee’s damages applies. In this

situation, “an employee has carried out his burden if he proves that he has in fact performed

work for which he was improperly compensated and if he produces sufficient evidence to show

the amount and extent of that work as a matter of just and reasonable inference.” Anderson, 328

U.S. at 687 (emphasis added). An employee may meet this burden by relying on recollection

alone. Kuebel, 643 F.3d at 362; see also Garner v. Chevron Phillips Chem. Co., L.P., 834 F.

Supp. 2d 528, 547 (S.D. Tex. 2011) (evidence can include plaintiff's attestations in his or her

affidavit as to when and how many overtime hours were worked); England v. Advance Stores

Co. Inc., 263 F.R.D. 423, 450 (W.D. Ky. 2009) (evidence as to the uncompensated work the

employee performed can consist solely of the plaintiff’s own testimony). “It is . . . a

fundamental precept of the FLSA that an employee should not be denied [recovery] because

proof of the number of hours worked is inexact or not perfectly accurate.” Monroe v. FTS USA,

LLC, 763 F.Supp.2d 979, 989 (W.D. Tenn. 2011)).

       After the employee produces evidence that shows he has in fact performed work for

which he was improperly compensated, as well as the amount and extent of that work as a matter



                                                14
of just and reasonable inference, 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 to be

drawn from the employee’s evidence. Anderson, 328 U.S. at 687-88. If the employer fails to

meet that burden, a court may award damages even though they are approximate. Id. at 688.

       Critical to our analysis is the application of Anderson’s relaxed evidentiary standard in

situations where the employee is responsible for filling out his own timesheets. When an

employee inaccurately records his or her hours of work at the instruction of the employer or the

employer’s agents, “the employer cannot be exonerated by the fact that the employee physically

entered the erroneous hours into the timesheets.” Kuebel, 643 F.3d at 363. Any other

conclusion would obviate the public policy behind the FLSA and would “permit an employer to

obligate its employees to record their own time, have its managers unofficially pressure them not

to record overtime, and then, when an employee sues for unpaid overtime, assert that his claim

fails because his timesheets do not show any overtime.” Kuebel, 643 F.3d at 364.

       Here, Stanbrough’s affidavit asserts that his supervisors at Vitek prevented him from

recording all of the hours that he worked. The affidavit states that Stanbrough’s timesheets are

inaccurate despite the fact that he personally recorded his time. Given the nature of the

assertions set forth in the affidavit, we are guided by Anderson. Applying the relaxed

evidentiary standard described in Anderson, Stanbrough need only show that he performed work

for which he was improperly compensated and produce evidence to show the amount and extent

of that work as a matter of just and reasonable inference. See Allen, 495 F.3d at 1317-18

(holding the just and reasonable inference standard applied where plaintiffs had not recorded

overtime but testified that they were discouraged from accurately recording overtime work).




                                                15
        Under Anderson’s relaxed evidentiary standard, Stanbrough has presented sufficient

evidence to show that he performed work for which he was improperly compensated and has

shown the amount of his uncompensated work “as a matter of just and reasonable inference.” In

his affidavit, Stanbrough specifically attests that he was required to be at Vitek offices by 7:30

a.m. but was not allowed to begin recording his time until he arrived at his first job site. He also

attests that he was required to deduct one half hour to one full hour for lunch breaks, when, in

reality, he worked through those breaks. Finally, Stanbrough attests that he was not allowed to

record any “remain on route” time – the time between his last job of the day and 5 p.m. when he

was required to stay near his route and wait for any additional work orders. Although we

recognize the challenge Stanbrough may have in quantifying the amount of work for which he

alleges he was not compensated, we find that Stanbrough has presented sufficient evidence under

Anderson to defeat Vitek’s claim that the affidavit is too generalized or speculative to create a

genuine issue of fact. Thus, the burden now shifts to Vitek to come forward with evidence to

negate the reasonableness of the inference created by Stanbrough’s affidavit as to the amount of

his uncompensated overtime work. Any dispute as to the precise amount of damages is a fact

issue for trial.

        2. Hearsay

        Vitek next argues that Stanbrough’s affidavit is insufficient to create a genuine issue of

material fact because it contains hearsay as to what certain supervisors allegedly said. Vitek

specifically directs this Court to paragraph 9 of Stanbrough’s affidavit, in which he states:

        I was instructed by three different supervisors, Tom Mahaney, Jeremy Huff and
        Matt Hammond, not to include the time I spent performing administrative work at
        the St. Peters office on my daily time sheets. Each of them stated that they were
        instructed by J.R. Payne, a Vitek executive, not to allow me to include such time
        on my time sheets. I complained on several occasions to each of those three
        supervisors, Mahaney, Huff and Hammond, that the hours I spend working in

                                                 16
       Vitek’s office should be included on my time sheets. All three of those
       supervisors, on each of those occasions, told me that I could not include those
       hours on my daily time sheets.

       Vitek also points to Stanbrough’s allegations that Mahaney, Huff, and Hammond

instructed him to deduct time for a meal break even if he did not take one, to consider his “drive

time” between jobs as his “meal break,” to exclude any “remain on route” time from his

timesheets, and to exclude time worked between picking up his daily assignments and his first

assigned job in the field. Stanbrough also claimed that when he asked Huff why he received less

than the full piece-rate compensation he was due, Huff told him he was paid based on what

Charter paid Vitek.

       Vitek is incorrect in its assertion that these allegations consist of inadmissible hearsay.

Rather, these alleged statements by Vitek employees constitute admissible statements by a party-

opponent. A statement or admission by a party-opponent may be admitted as evidence if the

statement is material to the issues of the case, the statement is relevant to the case, and the

statement is offered by the opposing party. State v. Floyd, 347 S.W.3d 115, 124 (Mo. App. E.D.

2011). The statement must be inconsistent with the party’s current position. Spearman v.

Hoskins, 806 S.W.2d 440, 441 (Mo. App. E.D. 1991). Furthermore, an admission of an

employee may be received into evidence against the employer if the statement is relevant to the

issues involved and the employee, in making the admission, was acting within the scope of his

authority. Bynote v. National Super Markets, Inc., 891 S.W.2d 117, 124 (Mo. banc 1995)). The

admission of a party opponent is not hearsay. Floyd, 347 S.W.3d at 124.

       The alleged statements by Vitek employees are material to the issues of the case, relevant

to the case, and inconsistent with Vitek’s current position that Stanbrough accurately recorded all

of the time that he worked and was paid according to the appropriate piece-rate schedule.



                                                  17
Furthermore, Vitek does not dispute that Payne or the three named supervisors were acting

within the scope of their authority when they allegedly made these statements. Therefore, these

statements are admissible as admissions by a party-opponent and do not render Stanbrough’s

affidavit legally insufficient to raise an issue of fact.6

         3. Sham Issues of Fact

         Vitek’s final argument with regard to Stanbrough’s affidavit addresses the inconsistencies

between Stanbrough’s timesheets and the attestations made by Stanbrough in his summary

judgment affidavit. Vitek argues that Stanbrough’s affidavit is a disingenuous attempt to create

an issue of fact that otherwise does not exist, and therefore, cannot be considered as summary

judgment evidence due to Stanbrough’s prior attestations of the truthfulness of his timesheets.

Vitek points to the fact that Stanbrough signed 418 of his 424 timesheets above a line stating “I

represent the above information is true and accurate.”

         We acknowledge the general principle that “a party may not avoid summary judgment by

giving inconsistent testimony and then offering the inconsistencies into the record in order to

demonstrate a genuine issue of material fact.” ITT Commercial Fin. Corp., 854 S.W.2d at 388.

The utility of summary judgment “as a procedure for screening out sham issues of fact” would be

diminished if a party “who has been examined at length on deposition could raise an issue of fact

simply by submitting an affidavit contradicting his own earlier testimony.” Camfield Tires, Inc.

v. Michelin Tire Corp., 719 F.2d 1361, 1365 (8th Cir. 1983).



6
  Vitek also argues that Stanbrough’s affidavit lacks foundation for the statements made therein. Vitek directs this
Court to Stanbrough’s allegation that he asked Huff why he was not being paid in accordance with the piece-rate
code, and Huff told him he was being paid based on what Charter had paid Vitek. Vitek asserts that the statement
lacks foundation as to what knowledge Huff had as to the matter. However, the question is not whether Huff had
knowledge of the situation, but whether Stanbrough had personal knowledge of his encounter with Huff.
Stanbrough clearly stated in his affidavit that Huff told him he was being paid according to what Charter paid Vitek.
Because Stanbrough’s allegation was based on personal knowledge, his affidavit is legally sufficient to raise an issue
of material fact. See Syngenta Crop Prot., Inc., 241 S.W.3d at 428.

                                                         18
       Missouri cases have applied this principle to exclude an affidavit offered in a summary

judgment proceeding when the affidavit contradicts the affiant’s previous sworn deposition

testimony. See ITT Commercial Fin. Corp., 854 S.W.2d at 388 (“[A] party may not avoid

summary judgment by giving inconsistent testimony and then offering the inconsistencies into

the record in order to demonstrate a genuine issue of material fact.”).

       Vitek asks this Court to extend this principle to Stanbrough’s “certified” timesheets. We

decline to do so. Although Stanbrough signed the timesheets in question and attested to the

accuracy of the information therein, Stanbrough was not under oath when he signed his

timesheets and was not subject to cross-examination. See Shockley v. City of Newport News,

997 F.2d 18, 23 (4th Cir. 1993) (in FLSA claim for overtime, supervisor’s affidavit did not create

sham issues of fact when it contradicted letter he previously wrote; letter was not the equivalent

of deposition testimony because supervisor was not under oath nor was he subject to cross-

examination at the time it was written). We have found no cases in Missouri or elsewhere

extending this principle to an affiant’s prior unsworn statements. To the extent Stanbrough’s

affidavit conflicts with his previously signed and altered timesheets, those inconsistencies may

be tested through cross-examination at trial and considered by the jury in determining the

credibility of Stanbrough’s testimony in support of his claims. See Kuebel, 643 F.3d at 364;

Allen, 495 F.3d at 1317.

       Having reviewed Stanbrough’s affidavit, we find the affidavit is legally sufficient to

create a genuine issue of material fact as to the issue of estoppel. The attestations contained

within Stanbrough’s affidavit establish a genuine issue of fact as to whether Vitek knew or

should have known that Stanbrough’s timesheets underreported his hours. The affidavit states

that Stanbrough’s supervisors instructed him not to include all hours worked on his timesheets.



                                                 19
Taking these statements as true, and giving Stanbrough the benefit of all reasonable inferences,

the affidavit contains sufficient facts to dispute Vitek’s claim that it neither knew nor had reason

to know of overtime hours worked by Stanbrough. Because the record contains a genuine

dispute as to facts necessary to support Vitek’s affirmative defense of estoppel, the trial court’s

grant of summary judgment as to Stanbrough’s claim for unpaid overtime must be reversed.

Point One is granted.

II.        Stanbrough’s Claim for Breach of Contract and Violation of Section 290.100

           In his second point on appeal, Stanbrough asserts that the trial court erred in entering

summary judgment for Vitek on the second claim of his amended petition. Though framed as a

single issue, Stanbrough’s second claim sets forth two bases of recovery by Stanbrough against

Vitek. Stanbrough alleges that Vitek failed to pay him in accordance with the agreed upon

piece-rate schedule, resulting in a breach of contract and a violation of Section 290.100.7

           In his affidavit, Stanbrough claimed that he was paid less than required by the piece-rate

schedule. When he inquired into the matter, a Vitek supervisor told Stanbrough that he was

being paid based on what Charter had paid Vitek. In its motion for summary judgment, Vitek

did not aver that it always paid Stanbrough in accordance with the piece-rate schedule. Rather,

Vitek claimed it was undisputed that during Stanbrough’s employment, Vitek changed the piece-

rate schedule only once, and on that occasion Stanbrough signed and dated a written

acknowledgement of the changes. Furthermore, the new piece-rate schedule did not reduce

Stanbrough’s wages, but rather increased his pay. Therefore, Vitek claimed, it was entitled to

summary judgment on Stanbrough’s claims for breach of contract and violation of Section

290.100.



7
    Section 290.100 requires Missouri employers to give employees 30 days of notice before decreasing wages.

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