The opinion of the court was delivered by: Judge Joan B. Gottschall
MEMORANDUM OPINION & ORDER
Via order entered on June 8, 2009 ("June 8 Order"), judgment on liability was entered in favor of Plaintiff James Sedrick, leaving the issue of damages to be resolved. Three motions are now before the court. First, Defendants have moved to alter or amend the June 8 Order. Second, Sedrick has moved for summary judgment on the issue of damages. Finally, Defendants have moved to strike some of the attachments and arguments included in Sedrick's reply brief in support of his damages claim.
I. DEFENDANTS'MOTION TO ALTER OR AMEND JUNE 8 ORDER
First, Defendants seek to have the judgment altered or amended. The judgment was entered against both All Pro Logistics, LLC ("APL"), the company for whom Sedrick worked, and Ronald L. Leek, a partial owner of APL. The June 8 Order focused on the Fair Labor Standards Act ("FLSA") and the Motor Carrier Act ("MCA") exemption to the FLSA, and did not separately consider parallel state-law claims because for purposes of liability the legal and factual issues were the same. Leek now argues that judgment against him is improper because Sedrick has failed to allege and/or prove that Leek exercised supervisory authority over Sedrick, which is necessary for a finding of liability under the FLSA. See Riordon v. Kempiners, 831 F.2d 690, 694 (7th Cir. 1987).
However, Leek did not present this legal argument in his motion or supporting memorandum for summary judgment, nor in response to Sedrick's cross motion for summary judgment. "A party seeking to defeat a motion for summary judgment is required to 'wheel out all its artillery to defeat it.'... Reconsideration is not an appropriate forum for... arguing matters that could have been heard during the pendency of the previous motion." Caisse Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1270 (7th Cir. 1996) (citations omitted). Defendants' motion to alter or amend is therefore denied.*fn1
II. DEFENDANTS'MOTION TO STRIKE
Defendants seek to strike certain affidavits and legal arguments regarding Leek's individual liability (and whether he exercised supervisory authority over Sedrick). The court did not consider these arguments in reaching its decision that Leek has waived this defense, and thus the motion to strike is denied as moot.
III. PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT ON DAMAGES
The final motion is by Sedrick for summary judgment on the issue of damages. Three issues must be resolved. First, although pay stubs and other records of hours worked were maintained, the parties dispute whether they accurately reflect the hours worked by Sedrick. Thus the court must resolve how the overtime damages will be calculated. Second, the court must determine how many years of overtime violations will be covered. Finally, the court must determine whether to apply liquidated damages under the FLSA.
A. Calculation of Overtime Damages
This is an overtime wage case only; Sedrick received his actual pay rate for each hour worked, and thus his damages are to be calculated as half of his hourly rate times the total number of hours worked per week over forty hours. The parties do not dispute this formula, but they present competing arguments regarding how many hours Sedrick actually worked.
Sedrick has attached evidence of his hours worked, in the form of, e.g., pay stubs showing the number of hours reported, and his hourly salary. Sedrick contends that these reports should not be taken at face value, however, because starting March 21, 2005, and continuing through the rest of the applicable period, Sedrick argues that defendants engaged in a scheme to misrepresent his actual hours worked. He argues that defendants reported only half his hours, but then paid him double his normal hourly rate. For example, if he worked 70 hours per week*fn2 and he was paid $16 per hour, but starting March 21, 2005, this would be reported as 35 hours of work at $32 per hour. Sedrick's base hourly pay was unaffected-he still received $16 for every actual hour worked-but for purposes of calculating overtime, the reported hours are no longer accurate.
To support his theory that this change occurred on March 21, 2005, Sedrick presents the following evidence. First, he shows the pay stubs themselves, which reflect that his salary doubled on March 21, 2005, and that his hours decreased. Of course, the pay stubs are silent as to the reason for this change in pay, and the pay stubs merely reflect the hours reported, but do not explicitly state "this is half as many hours as before." Sedrick also has included an affidavit in which he states that he was told by Leek and others that defendants were going to double his pay and cut his reported hours in half because of concerns about compliance with certain (unnamed) laws. However, this assertion may not be credited at this stage since Sedrick appears to have stated in his deposition that he never spoke to Leek about the change in pay. See Sedrick Apr. 3, 2008 Dep. Tr. 58.*fn3 However, Sedrick also states without contradiction that he knew the company was doubling his rate of pay and halving his hours, even if he cannot state explicitly why this was done. See id. at 50:13--22. Sedrick also points out in his reply brief that he received eight hours per day of holiday pay prior to March 21, 2005, but only four hours after March 21, 2005. Compare Pay Stub for Period Ending 12/26/04 (reporting 8 hours of holiday pay at rate of $16 per hour) with Pay Stub for Period Ending 01/01/06 (reporting 4 hours of holiday pay at rate of $34 per hour)*fn4 (attached as Ex. B to Sedrick's Statement of Facts). The court is convinced that this evidence speaks for itself; absent an explanation for why Sedrick's salary suddenly doubled and his hours dropped roughly in half, the only reasonable conclusion is that Sedrick was being paid double for half as many hours.
Defendants contend that the number of hours worked is a disputed fact, but point to nothing that puts these facts at issue. Defendants do not put forth any affidavits or testimony to provide a contrary explanation as to why Sedrick's salary doubled in March, 2005. Instead, they dispute the reported numbers proffered by Sedrick by citing one week of pay, March 20, 2006 to March 26, 2006, where Sedrick reportedly worked 67.5 hours according to his time cards. They argue that it is unfathomable that Sedrick actually worked 135 hours in one week, especially since Sedrick stated in his deposition that he worked only six days a week. On its face, this is a worthwhile observation. But as Sedrick points out in his reply, defendants disingenuously failed to observe that there is also no pay stub for the prior week. A logical inference is that Sedrick was for some reason not paid during the previous week, and these hours were lumped together into his ...