     Case: 16-20601      Document: 00514061226         Page: 1    Date Filed: 07/06/2017




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

                                      No. 16-20601
                                                                                Fifth Circuit

                                                                              FILED
                                                                           July 6, 2017

CHERYL KIRK,                                                             Lyle W. Cayce
                                                                              Clerk
              Plaintiff–Appellant,

v.

INVESCO, LIMITED,

              Defendant–Appellee.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:15-CV-833


Before KING, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Plaintiff–Appellant Cheryl Kirk sued her former employer, Defendant–
Appellee Invesco, Ltd. (“Invesco”), alleging that Invesco violated the Fair Labor
Standards Act (“the FLSA” or “the Act”). Kirk argued that Invesco
misclassified her as an employee exempt from the overtime provisions of the
Act and deprived her of overtime pay to which she was legally entitled. The
district court granted summary judgment in favor of Invesco. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
     Case: 16-20601      Document: 00514061226         Page: 2    Date Filed: 07/06/2017



                                      No. 16-20601
                                  I. BACKGROUND
A.     Facts
       Cheryl Kirk began working as the IT Training Manager at Invesco on
April 15, 2011. Beginning in 2012 or 2013, Lisa Soanes, Invesco’s Head of IT
Risk and Controls, Software Compliance, and IT Training, became Kirk’s
direct supervisor. Per employee policy, Kirk was expected to work 37.5 hours
each week but was paid the same amount regardless of the actual number of
hours she worked. Indeed, Kirk stated that the total number of hours and the
period of time during which she worked fluctuated daily depending on when
trainings were scheduled. Although she apparently used a timekeeping
program, Kirk testified that these records are not accurate. 1 She explained that
because these time records “don’t get fed into the . . . time and attendance
program that actually pays people,” the program “is not a true . . . recording of
anybody’s hours.”
       Kirk testified that on average she worked more than 60 hours per week.
In support of this assertion, Kirk offered the following evidence:
           • Her own testimony that she worked an average of 60 hours per
              week and that she probably spent “about 7 to 10 hours enrolling
              people” in training classes per day;
           • A list of work emails over five groups of consecutive days
              throughout three years showing emails sent before, during, and
              after regular work hours, including on weekends;
           • GPS phone records showing that Kirk was at work for 13 hours
              and 38 minutes on December 9, 2013; 11 hours and 14 minutes on


       1 Kirk testified that when she was first hired as an employee, one of her supervisors
informed her that her “time [was] not going to be billed back to any projects” and therefore
the time she recorded “d[id]n’t really matter.” Although in 2014 Soanes told Kirk that she
should accurately bill her time, Kirk testified that she chose to violate that policy going
forward.
                                             2
     Case: 16-20601   Document: 00514061226     Page: 3   Date Filed: 07/06/2017



                                 No. 16-20601
            April 21, 2014; and 11 hours and 24 minutes on September 11,
            2014;
         • Her mother’s testimony that (1) she observed Kirk working “on and
            off” about two evenings per week between 7:00 p.m. and 11:00 p.m.
            or 12:00 a.m.; (2) she believed Kirk “probably worked 9, 10 hours a
            day or longer” on weekdays, and “probably five to six hours a day
            on Saturday and Sunday”; (3) she observed Kirk making work
            phone calls using her landline before 6:00 a.m.; and (4) she believed
            Kirk “stayed at Invesco working many nights after what [she]
            thought would be . . . quitting time,” sometimes not even getting
            home from work until around 10:00 p.m.;
         • Invesco supervisor David Jordan’s testimony that Kirk “indicated
            she had to work over the weekend, late at night” and that he had
            no reason to disbelieve her;
         • Invesco policies showing that as IT Training Manager, Kirk was
            required to work 37.5 hours each week, typically during regular
            business hours.
      Beginning in June 2015, shortly after Kirk filed this lawsuit, Soanes
gave Kirk several written performance improvement plans describing alleged
deficiencies in Kirk’s work and conduct and detailed instructions on how to
improve. On October 15, 2015, Kirk was terminated, purportedly for sending
“insubordinate and unprofessional” emails and failing to timely complete
assignments.
B.    Procedural History
      On March 31, 2015, Kirk sued Invesco alleging that the company had
misclassified her as an exempt employee under the FLSA and failed to pay her
overtime as required by law. On December 28, 2015, Kirk filed a motion for
partial summary judgment. Invesco likewise moved for summary judgment on
                                       3
     Case: 16-20601    Document: 00514061226        Page: 4   Date Filed: 07/06/2017



                                   No. 16-20601
January 21, 2016. In May 2016, a magistrate judge recommended that the
district court deny Kirk’s motion and grant Invesco’s. Kirk filed objections to
the magistrate’s recommendation, but on August 18, 2016, the district court
overruled    these    objections    and       adopted   the   magistrate     judge’s
recommendation. This appeal followed.
                               II. DISCUSSION
A.    Standard of Review
      We review a grant of summary judgment de novo using the same
standard as the district court. Williams v. Henagan, 595 F.3d 610, 615 (5th
Cir. 2010). Summary judgment is warranted “if the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). “If the record, taken as a
whole, could not lead a rational trier of fact to find for the non-moving party,
then there is no genuine issue for trial.” Harvill v. Westward Commc’ns, L.L.C.,
433 F.3d 428, 433 (5th Cir. 2005) (quoting Steadman v. Tex. Rangers, 179 F.3d
360, 366 (5th Cir. 1999)). “In considering a summary judgment motion, all facts
and evidence must be taken in the light most favorable to the non-movant.”
LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 387 (5th Cir. 2007).
B.    Analysis
      On appeal, Kirk makes four arguments: (1) she was improperly classified
as an exempt employee under the FLSA’s administrative exemption; (2)
Invesco did not act in good faith in attempting to comply with the FLSA; (3)
the time-and-a-half method of calculating overtime damages is appropriate in
this case; and (4) the district court erred in holding that Kirk failed to raise
sufficient evidence that she worked overtime during the relevant time period.
The district court granted summary judgment only on the basis that Kirk had
failed to raise an issue of material fact over whether she actually worked
overtime. Therefore, this is the only issue we address on appeal. Singleton v.
                                          4
    Case: 16-20601     Document: 00514061226     Page: 5   Date Filed: 07/06/2017



                                  No. 16-20601
Wulff, 428 U.S. 106, 120 (1976) (“It is the general rule . . . that a federal
appellate court does not consider an issue not passed upon below.”); Humphries
v. Elliott Co., 760 F.3d 414, 418 (5th Cir. 2014).
      “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.” Harvill, 433 F.3d at 441.
Where accurate time records are unavailable—as both parties agree is the case
here—an employee has met this burden of proof if she “proves that [she] has
in fact 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 inference.” Id. (alterations in original)
(quoting Anderson v. Mount Clemens Pottery Co., 328 U.S. 680, 687 (1946),
superseded by statute on other grounds by Portal-to-Portal Act of 1947, 29
U.S.C. § 254). “The burden [then] shifts to the employer to come forward with
evidence of the precise amount of work performed or with evidence to negative
the reasonableness of the inference to be drawn from the employee’s evidence.”
Id. (quoting Anderson, 328 U.S. at 687–88). In order to raise a “just and
reasonable inference” as to the amount and extent of her work, an employee
need not prove “the precise extent of uncompensated work.” Anderson, 328 U.S.
at 687. But an employee must provide more than mere “unsubstantiated
assertions.” Harvill, 433 F.3d at 411; see Ihegword v. Harris Cty. Hosp. Dist.,
555 F. App’x 372, 375 (5th Cir. 2014).
      Even though Kirk presented the district court with more than just her
own assertions, we agree with the district court’s conclusion that this
“additional evidence is insufficient to substantiate her testimony that she
worked overtime.” Kirk presented a list showing work emails sent before,
during, and after regular work hours, including on weekends. The list,
however, shows only two- to three-day snapshots of such email activity over
                                         5
    Case: 16-20601     Document: 00514061226     Page: 6   Date Filed: 07/06/2017



                                  No. 16-20601
the course of three years. Moreover, while this record demonstrates that Kirk
did work outside of normal work hours, it does not validate Kirk’s assertion
that she worked more than forty hours in any given week. In fact, Kirk
admitted that the window during which she worked varied depending on when
trainings were scheduled and that any records or logs of her work time would
not account for breaks she took during the day. Accordingly, the mere existence
of emails sent outside of normal work hours does not raise a justifiable
inference that Kirk worked any overtime during the relevant time period.
      The same reasoning applies to the other evidence Kirk presented in
support of her overtime claim. The GPS phone records, which show that Kirk
worked some long days, demonstrate only that she worked eleven- to thirteen-
hour days three separate times over the course of two years but not that she
worked more than forty hours in any week during which those days occurred.
Kirk’s mother’s testimony likewise does not support an inference that Kirk
worked overtime. Kirk’s mother testified that she occasionally witnessed Kirk
using the computer “on and off” in the evening, making conference calls late at
night, and making work phone calls early in the morning. Nevertheless, Kirk’s
mother admitted that she could only remember actually seeing Invesco work
on Kirk’s computer four or five times and lacked any personal knowledge of
how much time Kirk spent making work phone calls. Because Kirk’s mother’s
testimony only accounts for sporadic occasions during which Kirk worked
outside of typical work hours, it likewise does not raise a question of fact as to
whether Kirk worked overtime. Finally, Jordan’s testimony that he had no
reason to disbelieve Kirk’s complaints to him about working weekends and
nights similarly fails to raise a question of fact as to whether Kirk worked more
than forty hours in any week during the relevant time period.
      Given that Kirk has presented only evidence of sporadic instances during
which she worked outside of typical work hours and has admitted that the
                                        6
    Case: 16-20601   Document: 00514061226     Page: 7   Date Filed: 07/06/2017



                                No. 16-20601
window during which she worked varied depending on when and where
trainings were scheduled, we hold that she has failed to present sufficient
evidence allowing a just and reasonable inference that she worked overtime.
                            III. CONCLUSION
      For the foregoing reasons, we AFFIRM the district court’s summary
judgment in favor of Invesco.




                                     7
