United States District Court, E.D. Missouri, Eastern Division
SANDRA DRAKE and RANDY SMITH, on behalf of themselves and others similarly situated, Plaintiffs,
STEAK N SHAKE OPERATIONS, INC., Defendant.
MEMORANDUM AND ORDER
A. ROSS UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant Steak N Shake
Operations, Inc.'s (“SnS”) Motion to Exclude
the Report and Testimony of Plaintiffs' Expert. (Doc.
251.) Plaintiffs oppose the motion (Doc. 259), and SnS has
filed a reply in support (Doc. 262).
Plaintiffs are two classes of current and former Managers who
seek unpaid overtime wages for their work in restaurants in
SnS's St. Louis Market: a class of 275 Managers
proceeding under Missouri Rule of Civil Procedure 23
(“Missouri Managers”) and an opt-in class of
eleven Managers proceeding under the Fair Labor Standards Act
(“FLSA”) (“FLSA Class”). (Doc. 259 at
2.) Plaintiffs intend to offer the report and testimony of
Leisel M. Fox, Ph.D. to assist the jury in determining
damages in the event SnS is found liable. (See Doc.
Fox's report attempts to calculate a total amount of
damages for each plaintiff by multiplying the plaintiff's
average hourly rate by the number of hours he or she worked
during the class period. (Id.) SnS's records
list each plaintiff's pay information. In determining how
many hours each Plaintiff worked, Dr. Fox considered four
sources of data. (Id.) The first was a questionnaire
sent by SnS during discovery. (Id. at 5.) All eleven
FLSA Class members and thirty-six Missouri Managers who were
then part of the FLSA Class responded. (Id. at 5.)
The second was a questionnaire sent by Plaintiffs'
counsel to the Missouri Managers. (Id.; Doc. 259-2.)
Forty-seven responded, again under oath. (Docs. 259-1,
259-2.) Together, these responses provided a personal average
number of hours worked for all eleven FLSA Class members and
eighty-three of the 275 Missouri Managers.
remaining 192 Missouri Managers, Dr. Fox first considered a
third source: an internal SnS document titled “2016
Overtime Regulation, ” which summarized SnS's
examination of Managers' weekly hours conducted to assist
in determining whether to convert Managers from salaried
employees to hourly employees in response to the Department
of Labor's announced change to overtime regulations.
(Doc. 259-1 at 5-6.) That survey revealed that the average
SnS Manager worked fifty-two to fifty-four hours per
week. (Id. at 5.) Dr. Fox's final
source was timeclock data from November 2016 to January 2017,
during which time SnS did pay Managers as non-exempt hourly
employees, which showed an average of 54.2 hours per week.
(Id.) In light of those sources, Dr. Fox employed an
average of fifty-four hours per week for all plaintiffs who
did not provide their own personal average in response to
Fox's use of the various source data to determine each
Plaintiff's average hours worked can be summarized as
• For the eleven FLSA Class members and the thirty-six
Missouri Managers who were previously part of the FLSA Class:
an individualized number based on his or her actual response
to SnS's discovery questionnaire, provided under oath;
• For the forty-seven Missouri Managers who responded to
Plaintiffs' counsel's questionnaire: an
individualized number based on his or her actual response to
Plaintiffs' questionnaire, provided under oath;
• For the 192 Missouri Managers who did not respond to
Plaintiff's counsel's questionnaire: a general
average of fifty-four hours per week, based on SnS's
internal survey and timeclock data.
(Doc. 259 at 5.) Using those numbers, Dr. Fox calculated how
many hours each plaintiff would have worked during the class
period, subtracting hours for vacation time, sick days,
holidays, and other time off, as listed on internal SnS
records. (Doc. 259-1 at 6-7.)
then multiplied the number of hours each plaintiff worked
during the class period by that plaintiff's hourly pay.
To determine a weekly rate, Dr. Fox divided each
Manager's yearly salary by fifty-two, applying salary
increases to the week they became effective and thereafter,
and accounting for any bonus payments. (Id. at 7-8.)
Dr. Fox then divided each Manager's weekly pay rate by
fifty hours. (Id. at 7.) She used fifty hours
because SnS Managers are scheduled fifty hours per week and
because SnS used a fifty-hour workweek to determine each
Manager's hourly rate during the period in which it payed
Managers as hourly employees. (Id. at 7 n.18.)
multiplying each plaintiff's total hours worked by his or
her hourly pay rate, Dr. Fox was able to determine the
overtime due for all work beyond forty hours. Because
Plaintiffs were paid their hourly rate for hours forty to
fifty, Dr. Fox multiplied those hours by one half times that
plaintiff's hourly rate, adding only the unpaid overtime
premium. (Id. at 7-8.) Because Plaintiffs were paid
for fifty hours of work, Dr. Fox multiplied any hours above
fifty by the full overtime rate of one and one half times
hourly rate. (Id.) The result is a chart listing the
total unpaid overtime for each of the 286 plaintiffs. (Doc.
259-1 at 15-22.) Dr. Fox also included a calculation of total
damages for each. (Id.; see Mo. Rev. Stat.
§ 290.527 (authorizing liquidated damages in the amount
of unpaid overtime).)
challenges a number of Dr. Fox's assumptions and argues
that her calculations are based on unreliable sources. (Doc.
252.) Specifically, it argues that the questionnaires are
unscientific surveys which Dr. Fox neither helped prepare nor
reviewed and that she did not verify the accuracy of the
responses. (Id.) In addition, SnS argues that Dr.
Fox failed to account for biases inherent in the surveys,
further eroding the reliability of the source material.
(Id.) Finally, SnS argues that because Dr. Fox's