Caiazza v. Carmine Marceno

             UNITED STATES DISTRICT COURT                            
              MIDDLE DISTRICT OF FLORIDA                             
                 FORT MYERS DIVISION                                 

JOSEPH CAIAZZA, on his own                                                
behalf and those similarly situated                                       

     Plaintiff,                                                      

v.                                                                              Case No.: 2:18-cv-784-FtM-38MRM 

CARMINE MARCENO,                                                          

     Defendant.                                                      
                         /                                           
                OPINION AND ORDER1                                   
Before the Court is Defendant Carmine Marceno’s Motion for Summary   
Judgment (Doc. 46) and Plaintiff Joseph Caiazza’s response in opposition (Doc. 
58).  The parties replied, surreplied, and sur-surreplied too.  (Docs. 61; 66; 69).  
The Court grants the Motion in part.  Also here is Caiazza’s Motion for Summary 
Judgment (Doc.  67), which seeks judgment on the same two issues.  Marceno 
responded (Doc. 70) and Caiazza replied (Doc. 71).  The Court denies that Motion.2 


1 Disclaimer: Documents hyperlinked to CM/ECF are subject to PACER fees.  By using hyperlinks, 
the Court does not endorse, recommend, approve, or guarantee any third parties or the services 
or products they provide, nor does it have any agreements with them.  The Court is also not 
responsible for a hyperlink’s availability and functionality, and a failed hyperlink does not affect 
this Order.                                                               
2 On the factual issues, Caiazza takes contradictory positions.  Compare (Doc. 58 at 20 (arguing 
“there are genuine issues of material facts”)), with (Doc. 67 at 1 (“there are no issues of 
material fact”)).  One day before moving for summary judgment based on the lack of a genuine 
dispute, Caiazza surreplied to Marceno’s Motion contending “there are material issues of fact.”  
(Doc. 66 at 1).  It is unclear how counsel can—in good faith—sign court papers making such 
representations.  This seems to be an attempt to increase the briefing and drive up fees running 
afoul Rule 1.  Fed. R. Civ. P. 1 (The Rules “secure the just, speedy, and inexpensive determination 
of every action.”).  That said, the Court denies the Motion for the reasons described below. 
                    BACKGROUND                                       
This is a Fair Labor Standards Act (“FLSA”) case.  Marceno is the Lee County 
Sheriff.  And Caiazza  is a retired Sheriff’s Deputy.   During the relevant time, 

Caiazza worked on Captiva and Sanibel Islands (collectively, the “Islands”).  The 
Islands had only one other patrol officer, along with a supervisor who had mostly 
administrative duties.                                                    
Every  fourteen days,  Marceno scheduled  Caiazza  for seven  twelve-hour 
shifts of active patrol, with each followed by a twelve-hour on-call period.  For one 

other day every week, Caiazza was on call again.  When on call, Caiazza had to 
respond to call outs within one hour.3  Given geographical reality, this restricted 
Caiazza to the Islands and their surrounding waters while on call.  To facilitate his 
job, Caiazza lived in a condo on Captiva, with rent paid by Marceno.  After a shift, 
Caiazza turned off his radio to charge it.  So dispatchers notified him of call outs 
on a work cell phone.  While not required, Caiazza regularly watched his work 

computer for  call  outs too  because  notifications sometimes appeared  in that 
system before the dispatcher could make a call.  Even when not on call, Caiazza 

3 Caiazza tries to put this in dispute but falls well short.  He offers vague, unsupported declarations 
that he “had to be available to immediately respond.”  (Doc. 58-1 at 3).  Caiazza also points to 
language from his job description explaining an officer (including an on-duty officer) “diligently 
monitors dispatch and responds to all dispatch directed services calls in a timely manner 
consistent with call classification.”  (Doc. 47-1 at 3).  Where it addresses on-call time, the job 
description simply states officers must respond to “requests in a timely manner consistent with 
agency policies/procedures.”  (Doc. 48-2 at 10).  None of that disputes the only evidence on 
Marceno’s policy that on-call officers had one hour to respond to call outs.  (Docs. 48-1 at 4; 67-2 
at 13-15).  And there is no evidence of Marceno ever applying a shorter response time during the 
relevant three years.  Rather than confront that evidence with evidence a reasonable jury could 
rely on, Caiazza’s counsel makes mere argument grasping for ambiguity straws.  In short, Caiazza 
does not put the one-hour policy into genuine dispute.                    
could receive call outs to serve as backup.  When on call, Caiazza could not drink 
alcohol.  Because of these conditions, Caiazza says he used on-call time to benefit 
Marceno, his coworkers, and Island residents.                             

Caiazza brought a one-count Complaint alleging FLSA overtime violations 
over three years.   (Doc.  17).   Caiazza  contends the time he spent on call was 
compensable and he worked many overtime hours without pay.                
                  LEGAL STANDARD                                     
“The court shall grant summary judgment 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).  A fact is “material” if it “might affect the 
outcome of the suit under the governing law.”  Anderson v. Liberty Lobby, Inc., 
477 U.S. 242, 248 (1986).  And a material fact is in genuine dispute “if the evidence 
is such that a reasonable jury could return a verdict for the nonmoving party.”  Id.  
The moving party bears the initial burden to show the lack of genuinely disputed 

material fact.  Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008).  At this 
stage, courts must view all facts and draw reasonable inferences in the light most 
favorable to the nonmoving party.  Rojas v. Florida, 285 F.3d 1339, 1341-42 (11th 
Cir. 2002).                                                               
                     DISCUSSION                                      

To start, the Court addresses the hours at issue before turning to the dispute 
on pay for hours worked.                                                  
A.  On-Call Time                                                          
Caiazza contends all the time he spent on call is compensable.  Marceno 
counters that such time was not spent working under the FLSA, so no pay was 

necessary.  The Court agrees with Marceno and holds the time Caiazza spent on 
call (but not called out) was not compensable, so Caiazza is not entitled to overtime 
pay based on those hours.                                                 
On-call employees may be entitled to pay for the time they spend waiting.  
Armour & Co. v. Wantock, 323 U.S. 126, 134 (1944).  Traditionally, the distinction 

has been whether an employee “was engaged to wait” or “waited to be engaged,” 
with only the former compensable.  Skidmore v. Swift & Co., 323 U.S. 134, 136 
(1944).  Deciding whether an employee is working during on-call time “depends 
on the degree to which the employee may use the time for personal activities.”  
Birdwell v. City of Gadsden, Ala., 970 F.2d 802, 807 (11th Cir. 1992).  In other 
words, “whether ‘the time is spent predominantly for the employer’s benefit or for 

the employee’s.’” Id. (quoting Armour, 323 U.S. at 133).  To determine if time is 
compensable, courts scrutinize “the agreements between the particular parties, 
appraisal  of their practical  construction of the working agreement by conduct, 
consideration of the nature of the service, and its relation to the waiting time, and 
all of the surrounding circumstances.”  Skidmore, 323 U.S. at 137.        

If “a particular set of facts and circumstances is compensable under the 
FLSA is a question of law for the Court to decide.”  Llorca v. Sheriff, Collier Cnty., 
Fla., 893 F.3d 1319, 1324 (11th Cir. 2018).  So “it is for the court to determine if a 
set of facts gives rise to liability; it is for the jury to determine if those facts exist.”  
Dade  Cnty.,  Fla.  v.  Alvarez,  124  F.3d  1380,  1383 (11th Cir.  1997)  (alteration 
accepted and citation omitted).                                           

While not controlling, regulations interpreting the FLSA address “on-call 
time”:                                                                    
     An  employee who  is  required to  remain on  call  on  the     
     employer’s premises or so close thereto that he cannot use the  
     time effectively for his own purposes is working while “on      
     call.”  An employee who is not required to remain on the        
     employer’s premises but is merely required to leave word at     
     his home or with company officials where he may be reached      
     is not working while on call.                                   

29 C.F.R. § 785.17.  The regulations explain on-call time spent at home.  Such time 
“may or may not be compensable depending on whether the restrictions placed on 
the  employee  preclude  using  the  time  for  personal  pursuits.”    29  C.F.R. 
§ 553.221(d).   “Where, for example,  [a firefighter] has returned home after the 
shift, with the understanding that he or she is expected to return to work in the 
event of an emergency in the night, such time spent at home is normally not 
compensable.”   Id.    “On the other hand,  where the conditions placed  on the 
employee’s activities are so  restrictive that the employee cannot use the time 
effectively for personal pursuits, such time spent on call is compensable.”  Id.  At 
bottom, for on-call time to be work time, an employee’s use of the “time must be 
severely restricted.”  Birdwell, 970 F.2d at 810.                         
Here, the restrictions were not severe enough to transform Caiazza’s on-call 
time into work time and the period was not predominantly for Marceno’s benefit.  
Mainly, Caiazza contends he was on call for twenty-four hours at a time and had to 
monitor his computer constantly, which prevented him from pursuing personal 
activities.  Yet Marceno did not impose significant restrictions on Caiazza, who 

could use on-call time for his own benefit.  According to Christopher Lusk (the 
Islands’ other patrol officer), he spent on-call time reading, watching tv or movies, 
cooking, entertaining guests, visiting friends, eating out, shopping,  playing with 
his kids, fishing (on or near the Islands), exercising, and sleeping.  (Doc. 49-1 at 4).  
In  other words,  Lusk used  on-call time primarily for his  benefit rather than 

Marceno’s.  While Caiazza blankly states he could not do similar activities, he never 
explains why.  Marceno imposed no restriction on those activities.  And besides the 
limitations described  below,  Caiazza  never  points  to  evidence  showing  any 
restriction on his personal pursuits.                                     
Rather, Caiazza seems to claim he could not engage in any activities because 
he might be interrupted while doing so.  For instance, Caiazza contends he was 

restricted from simply watching a tv show because if a call came in, he would have 
to leave during the show.  (Doc. 47 at 32 (“Say if you want to watch a TV show, you 
start watching it, you have to leave.  So that’s one of the restrictions.”)).  Likewise, 
he claims grilling was out of the question because there was a chance he might have 
to turn the grill off.  (Doc. 47 at 32 (“If I wanted to try to cook out, there’s times I 

wanted to grill out on the back porch, I had to go, shut the grill off, come back later, 
the food is done.”)).  Neither of these is an instance in which Marceno’s demands 
were so restrictive that Caiazza could not engage in those activities.  Instead—like 
all  on-call  employees—there  was  just  a  chance  Caiazza’s  pursuit  might  be 
interrupted.  But if the mere chance of interruption alone is enough to convert on-
call time to FLSA compensable time, then all on-call time is compensable.  This 

would ignore the case law and regulations, which clarify “an employee’s free time 
must be severely restricted for off-time to be construed as work time.”  Bridwell, 
970 F.2d at 810.  Other courts rejected similar arguments, reasoning a plaintiff’s 
voluntary abstention from activities for fear of interruption is not enough unless 
the  employer  restricted  the  activity  expressly  or  implicitly  through  other 

limitations (like response times).  Taunton v. GenPak LLC, 762 F. Supp. 2d 1338, 
1351  (M.D.  Ala.  2010).   At bottom, the possibility a work call  will disrupt an 
employee’s pursuits is an inconvenience every on-call employee must deal with.  
See Gaylord v. Miami-Dade Cnty., 78 F. Supp. 2d 1320, 1325 (S.D. Fla. 1999) (“As 
a matter of law, an employee is not ‘working’ simply because that employee must 
be on call if needed.”).                                                  

To be sure, there were restrictions on some of Caiazza’s personal pursuits 
while on call.  Given geographic and temporal limitations, he could not spend time 
on the mainland, which eliminated some activities like going to a movie theatre or 
certain stores.  And Caiazza could not drink alcohol.  Yet such restrictions were not 
so harsh that Caiazza could not use the time for his own benefit.  As Lusk clarifies, 

there were plenty of personal activities Caiazza could have pursued either at home 
or on the Islands.  Testimony Caiazza offers bears this out.  His friend testified 
Caiazza often went to her house for coffee, dinner, or just to visit while on call.  
(Doc. 67-4 at 7-9).  She noted Caiazza often received call outs on his work phone 
during the visits.  But it is clear Caiazza could leave home and visit friends while 
on call.  Courts must be careful to distinguish between work schedules that are 

unenviable, even “perhaps oppressive,”  and those preventing an employee from 
using on-call time for their benefit.  Birdwell, 970 F.2d at 809-10.  Only the latter 
is actionable under the FLSA.  That Caiazza had to respond to calls sober within an 
hour did not severely restrict his time so it could not be used for his benefit. 
Much of Caiazza’s position relies on his practice of constantly checking the 

computer.   Yet  this was  not a  restriction Marceno  imposed.    Nothing in the 
record—not even Caiazza’s testimony—suggests anyone ever asked him to monitor 
his computer on call.  Lusk provided it wasn’t a requirement.  (Doc. 49-1 at 4-5 (“I 
was not required to monitor my agency-issued computer, and no supervisor has 
ever directed or instructed me to monitor my agency-issued computer while ‘On 
Call.’”).  And Caiazza explained he checked the computer voluntarily to respond 

quickly if another officer needed backup.  (Doc. 47 at 16).  But Caiazza’s dedication, 
while commendable, does not convert otherwise noncompensable time into work 
time.  Likewise, Caiazza’s testimony he vigilantly slept clothed in a chair rather 
than a bed does not advance his cause.  Marceno never asked him to do so.  More 
important, Caiazza provides no evidence this was necessary to respond to call outs 

within an hour.   Put another way,  nothing supports  the conclusion Caiazza’s 
sleeping pattern was time spent predominantly for Marceno’s benefit.  Rather, this 
appears to be another admirable choice by Caiazza as opposed to a restriction or 
condition placed upon his free time by Marceno.                           
Still, Caiazza looks at two out-of-Circuit cases for support.  But those simply 

reveal that the types of on-call assignments demanding pay under the FLSA are far 
more restrictive than Caiazza’s.                                          
In one, a court found on-call time compensable for firefighters restricted to 
a geographical area.  Cross v. Ark. Forestry Comm’n, 938 F.2d 912 (8th Cir. 1991).  
Yet those firefighters needed to respond to calls in only thirty minutes.  What is 

more, the employer required them to continuously monitor radio transmissions—
all  day  everyday—even  somehow while sleeping.    This  severely limited those 
firefighters’ abilities to do anything else besides listen to the radio.  Again, Caiazza 
did not have to monitor his computer, and (regardless of monitoring the computer) 
he received call outs on a cell phone.  So Caiazza could leave his house to do other 
things in the area if he carried his cell phone.  Cross specifically distinguished that 

scenario.  Id. at 917.                                                    
The other case is more dissimilar.  Renfro v. City of Emporia, Kan., 948 F.2d 
1529  (10th Cir. 1991).   There, firefighters had to report to work within twenty 
minutes of  a  call.    Those call  outs occurred  three to five  times  per  day  and 
sometimes up  to thirteen times.  Given the frequency of calls outs and  quick 

response,  the  firefighters  could  not  use  on-call  time  as  they  pleased.    The 
undisputed evidence here, however, shows far fewer call outs and longer response 
times.   In  his  declaration, Caiazza  says  call  outs were “frequent” and  “near-
constant.”  (Doc. 58-1 at 3-4).  Without explanation, these descriptions contradict 
his earlier deposition testimony, which described call outs as inconsistent from 
week to week.  (Doc. 47 at 32 (“It could be – there’s weeks where you would go 

maybe one or two calls or nothing, there’s other weeks you’re working 20 straight 
hours.”)).  Most important, time records specify Caiazza was called out around five 
times every two weeks.  (Docs. 48-2 at 29-111; 62-1 at 3-6; 62-2 at 135-47; 62-3).4  
This is a far cry from the daily call outs Renfro found to preclude an employee’s 
use of time.  Likewise, the frequency distinguishes the only in-Circuit case Caiazza 

relies on.  Smith v. Ideal Towing, LLC, No. 1:16-CV-1359-TWT, 2017 WL 5467154, 
at *4 (N.D. Ga. Nov. 13, 2017).  There, tow truck drivers could except  twelve to 
fifteen calls a day, preventing them from effectively using on-call time for their 
benefit.  Again, the calls here occurred much less often.                 
Rather  than  rely  on  those distinguishable cases,  controlling precedent 
resolves the question.  In Birdwell, the Eleventh Circuit held on-call detectives 

were not working despite restrictions on their activities such as a requirement to 
respond “immediately.”  Birdwell, 970 F.2d at 807.  As here, those detectives could 
not leave town or drink.  Further, they could neither hunt and fish nor go on family 
outings without taking two cars.  And if the detectives left home, they needed to 


4 As Marceno notes, this figure includes call outs voluntarily initiated by Caiazza.  Without 
deciding the issue, the Court treats these like any regular call out from dispatch as it is most 
favorable to Caiazza.  Caiazza pincites no evidence to dispute the frequency of call outs.  At one 
point, he says Marceno’s records are incorrect and asks the Court to compare hundreds of pages 
of call data to find a needle-in-the-haystack inaccuracy.  But at summary judgment, that’s his job, 
not the Court’s.  Fed. R. Civ. P. 56(c)(1)(A), (3).                       
provide a forwarding number or buy a beeper.  Otherwise, “They could do anything 
they normally did so long as they were able to respond to a call promptly and 
sober.”  Id. at 810.  Caiazza was in a similar position.                  

In deciding that case, Birdwell relied on several other circuit courts that 
determined far harsher conditions were not work time.  See Norton v. Worthen 
Van Serv., Inc., 839 F.2d 653 (10th Cir. 1988) (employee required to remain near 
workplace for eight to ten hours a day  and respond in twenty minutes was not 
working because he could pursue personal interests); Bright v. Hous. Nw. Med. 

Ctr. Survivor, Inc., 934 F.2d 671 (5th Cir. 1991) (employee was on call for all off-
duty time and had to respond to calls within twenty minutes); Halferty v. Pulse 
Drug Co., 864 F.2d 1185 (5th Cir. 1989) (idle time spent at home to answer calls 
not for employer’s benefit because employee could visit friends, entertain guests, 
sleep, watch tv, do laundry, and babysit).  Many districts courts following Birdwell 
reached similar conclusions.  This Court noted another nearby sheriff’s one-hour 

response requirement did not convert on-call time into FLSA compensable time.  
Calderone v. Scott, No. 2:14-519-FtM-PAM-CM, 2017 WL 5444190, at *3-4 (M.D. 
Fla. Feb. 27, 2017), aff’d on other grounds, Llorca, 893 F.3d 1319.  Similarly, on-
call bomb squad technicians who had to remain at home, respond promptly, and 
not drink were found not severely restricted.  Lurvey v. Metro. Dade Cnty., 870 F. 

Supp. 1570 (S.D. Fla. 1994).  Likewise, one court held an employee that seldom left 
his house while on call was not working as he could watch tv, eat, and sleep.  W. v. 
S. AG Carriers, Inc., No. 1:16-CV-00134 (WLS), 2018 WL 2753029 (M.D. Ga. Apr. 
27, 2018).                                                                
Even viewing all facts and drawing reasonable inferences for Caiazza, his 

time spent on call (but not called out) was not so severely restricted that it was for 
Marceno’s benefit.  The time is therefore not compensable under the FLSA and 
summary judgment is granted to Marceno in part.                           
B.  Overtime Hours                                                        
Having concluded what hours are relevant, the Court turns to the dispute 

over the number of hours Caiazza worked.  Part of Caiazza’s claim stems from the 
argument that all his  on-call time was  compensable,  which  (as  described)  is 
incorrect.  But the unpaid overtime claim is not limited to that.  Caiazza also says 
he did not receive overtime pay for call outs and other time worked outside the 
shifts listed on his timesheets.  Marceno contends Caiazza received pay for all the 
hours he worked.  While Marceno argues officers must flex time to adjust their 

work schedules and account for overtime, Caiazza asserts supervisors prevented 
him from doing so.   On overtime, the Court concludes summary judgment is 
misplaced.                                                                
Employees that work overtime without pay can sue for damages under the 
FLSA.  29 U.S.C.  § 216(b).  “An unpaid-overtime claim has two elements: (1) an 

employee worked unpaid overtime, and (2) the employer knew or should have 
known of the overtime work.”  Bailey v. TitleMax of Ga., Inc., 776 F.3d 797, 801 
(11th Cir. 2015).  On both prongs, there is a genuine issue of material fact. 
First, the parties dispute whether Caiazza worked over forty-two hours per 
week without pay.  Marceno contends he paid Caiazza for all hours reflected on the 
timesheets, which Caiazza  had  to submit accurately.   Marceno also  points  to 

instances when Caiazza received overtime pay.  (Doc. 62-2 at 128-134).  Caiazza 
counters his timesheets were false and  did  not include many hours he spent 
working.  Because Marceno did not allow overtime on timesheets, says Caiazza, he 
kept  his own records with the actual number of  hours he worked during the 
relevant period.  (Doc. 58-3).  Marceno challenges these records as hearsay, but 

Caiazza is prepared to testify about unpaid overtime and the records seem to fall 
within the recorded recollection exception.  See Fed. R. Evid. 803(5); (Docs. 47 at 
26; 47-2 at 14-15).  Thus, the records could be reduced to admissible form at trial 
by reading them into evidence.  What is more, Caiazza provided specific examples 
of uncompensated work he claims.  On one scheduled day off, a DUI call came in 
right after Caiazza  finished a shift.  For that call, Caiazza  worked twelve more 

hours, for which he was not paid or given corresponding time off.  (Doc. 47 at 32-
33).  Relatedly, Marceno argues Caiazza  did not establish the exact dates and 
amounts of overtime without pay.  Yet such detailed information is unnecessary to 
survive summary judgment.  Allen v. Bd. of Pub. Educ. for Bibb Cnty., 495 F.3d 
1306, 1317-18 (11th Cir. 2007) (“Thus, it is clear that [defendant] was not entitled 

to summary judgment based on Plaintiffs’ lack of documentation and inability to 
state with precision the number of uncompensated hours they worked and the days 
on which that work was performed.”).  At bottom, the parties genuinely dispute 
whether Caiazza worked unpaid overtime hours.                             
Second, the parties dispute whether Marceno knew or should have known 

about Caiazza’s overtime hours.  “Knowledge may be imputed to the employer” if 
supervisors “encourage artificially low reporting” of hours.  Bailey, 776 F.3d at 801 
(alteration accepted  and citation omitted).  Imputed knowledge can also occur 
“when an employer’s actions squelch truthful reports of overtime worked.”  Allen, 
495 F.3d at 1319.                                                         

According to Caiazza, Marceno had a de facto policy preventing officers from 
reporting over forty-two hours each week.  (Doc. 47 at 15-16).  While the written 
policy  stated  officers  must flex  their time to avoid  working overtime (unless 
approved),  Caiazza  claimed it was impossible to do so for most of the relevant 
period because of short staffing on the Islands.  (Doc. 47 at 18-19).  And Caiazza 
testified about protesting the underreported hours to his supervisor, who told him 

the only way to get paid was by signing timesheets that did not reflect overtime 
hours.  (Doc. 47 at 16).                                                  
Marceno  sees  things  different.    He  provides  evidence  that  Lusk  was 
encouraged to keep accurate time records.  (Doc. 49-1).  Lusk also used flex time 
and received overtime pay if he could not flex off.  Likewise, Caiazza’s supervisor 

testified it was up to Caiazza to manage his hours and flex time as needed then 
submit correct timesheets.  (Docs. 67-2 at 35-40; 48-1).  He says Marceno had no 
de facto policy against overtime.  (Doc. 62-1 at 3).  And Caiazza used flex time and 
received overtime on at least several pay periods.                        
In  other words, there is  a  genuine dispute of  material fact  on whether 

Marceno (or his employees) knew or should have known about the overtime.  This 
defeats  Marceno’s  argument of  reliance on Caiazza  certifying his hours were 
correct.  When, as here, an employee offers evidence of supervisors encouraging 
low reporting, the Eleventh Circuit consistently rejects an employer’s defense that 
the employee had to report accurate hours.  Bailey, 776 F.3d at 803-04 (“[H]ere 

the supervisor encouraged and participated in the underreporting, so [defendant] 
knew or had reason to know that the employee was underreporting”); Allen, 495 
F.3d at 1318-20; Brennan v. Gen. Motors Acceptance Corp., 482 F.2d 825, 828 
(5th Cir. 1973).  The nonbinding case Marceno relies on does not fit.  There, an 
employer’s access to information about plaintiff’s work activities could not impute 
knowledge of overtime hours onto the employer when it relied on the employee’s 

signed timesheets showing no overtime.  Newton v. City Henderson, 47 F.3d 746 
(5th Cir. 1995).   Here, Caiazza repeatedly testified to informing his supervisors 
about  unpaid  overtime—a  situation  Newton  distinguished.    See  id.  at  750 
(Plaintiff’s “payroll forms would not be reliable indicators of the number of hours 
worked,  if  there  was  evidence  to  support  the  conclusion  that  [defendant] 

encouraged or forced [plaintiff] to submit incorrect time sheets.”).      
Because there is a genuine dispute on both elements of Caiazza’s overtime 
claim, summary judgment is improper.  Bailey, 776 F.3d at 801.            
 Accordingly, it is now 
 ORDERED: 
 (1)  Defendant’s Case Dispositive Motion for Summary Judgment (Doc. 46) 
    is GRANTED and DENIED in part. 
 (2)  Plaintiffs Motion for Summary Judgment (Doc. 67) is DENIED. 
 DONE and ORDERED in Fort Myers, Florida on October 3, 2020. 

                                   ,  ites WObLataathe  7 
                                     UNITED STATES DISTRICT JUDGE 

Copies:  All Parties of Record