Free Findings of Fact & Conclusions of Law - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Wiley Y. Daniel Civil Action No. 03-cv-02474-WYD-PAC CHARLOTTE SCHNEIDER and DEAN WYMER, Plaintiffs, v. LANDVEST CORPORATION, a Kansas corporation, and DAVID MASON, individually, Defendants. __________________________________________________________________ FINDINGS OF FACT AND CONCLUSIONS OF LAW __________________________________________________________________ THIS MATTER came before the Court on a trial to the Court held September 26, 27 and 28 and October 5 and 6, 2005. The parties submitted proposed findings of facts and conclusions of law on October 26, 2005, and thereafter submitted certain supplements After considering the testimony of the witnesses, the credibility of the witnesses, the exhibits submitted, the arguments of counsel, and the parties' proposed findings of fact and conclusions of law, the Court enters the following Findings of Fact and Conclusions of Law. I. FINDINGS OF FACT The Parties 1. Defendant Landvest Corporation [" Landvest" is a Kansas corporation ]

which manages self storage space. The 50-plus facilities managed by Landvest

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Corporation are located in Colorado, Kansas, Louisiana, Missouri, New Mexico, Ohio and Texas. Doc. 67, Approving Final PTO; PTO: p. 5, ¶ 6. 2. At all times relevant to this action Landvest was doing business in

Colorado. Id., ¶ 7. 3. Plaintiffs Charlotte Schneider [" Schneider" and Dean Wymer [" ] Wymer" ]

are natural persons who reside in El Paso County, Colorado. Id., ¶ 1, 3. 4. Schneider and Wymer were employed by Landvest as resident managers

of a storage facility located at 10601 Iliff, Aurora, Colorado from April10, 2002 until April 4, 2003. Id., ¶ 4. . Plaintiffs' Background and the Application for Employment 5. Schneider applied for employment with Landvest on or about March 27,

2002, and began working at the storage facility located at 10601 Iliff, Aurora, Colorado, on April 10, 2002, as a resident manager. Testimony of Schneider, Trial Transcript [" ] at 24, lines [" ] 20-24. Tr." ll." 6. Wymer applied for employment with Landvest on or about March 27,

2002, and also began working at the storage facility located at 10601 Iliff, Aurora, Colorado, on April 10, 2002, as a resident manager. Testimony of Wymer, Tr. at 267-268. 7. 8. Plaintiffs are married to each other. Prior to their employment with Landvest, Plaintiffs resided near

Edgemont, South Dakota. Schneider was not working at the time she applied for employment with Landvest. She had previously worked as an accounts receivable

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clerk, a motel manager, and a manager of an apartment complex. She had also worked as an assistant manager in a convenience store. Exhibit [" ] A14-0002. Ex." 9. Wymer had previously owned businesses, including a pawn shop and a

sound business. He had worked as a musician, a motel manager, and a manager of an apartment complex. Ex. A13-0002. 10. At the time they were hired by Landvest, Plaintiffs owned their home near

Edgemont, South Dakota. 11. In March, 2002, Schneider saw an on-line classified advertisement in the

Denver Post for a Landvest resident manager. 12. In response to the advertisement, Plaintiffs called Landvest and spoke to

John Cramer [" Cramer" a Landvest regional manager. Cramer asked them to fax their ], resumes to him. 13. During Schneider' first telephone conversation with Cramer, he told her s

the job required two persons to work the site, that managers live on site and that managers worked 4 hours each per day. Testimony of Schneider, Tr. at 25, ll. 16-24. 14. At Cramer' request, Plaintiffs traveled to Denver two or three days after s

the first telephone conversation with Cramer. They met Cramer at a restaurant and spent approximately one hour with him. Testimony of Schneider, Tr. at 26, ll. 20-24. He again mentioned 4 hours a day of work per person and stated that they would earn $416.00 every two weeks. Testimony of Schneider, Tr. at 27, ll. 5-9; Testimony of Wymer, Tr. at 267, l. 19 - 268, l. 11. 15. Cramer then told them that a final decision would be made in the future

concerning their employment and that he would contact them in a day or two.

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16.

Plaintiffs returned to South Dakota and were offered employment with

Landvest shortly thereafter. After accepting their positions, they were asked to begin work on April 1, 2002. 17. Plaintiffs were later notified by Cramer that there was a problem with the

apartment they were to occupy and were told to report to duty on April 10, 2002. 18. Plaintiffs physically arrived in Denver on April 9 and reported to work at

10:00 a.m. on April 10, 2002. Tr. at 28, ll. 2-8. 19. Plaintiffs were hired by Landvest to manage a self storage facility located

at 10601 East Iliff, Aurora, Colorado. They worked at the Iliff facility until they terminated their employment on April 4, 2003. 20. Plaintiffs received three days of training at the Iliff site (April 10-12, 2002)

from Judi French [" French" a resident manager. Cramer was present for part, but not ], all, of the training. At the end of the first day of training Wymer had worked approximately 8 hours. Testimony of Wymer, Tr. at 272, l. 2 . Schneider had worked approximately 9 hours. Testimony of Schneider, Tr. at 29, l. 15. They were instructed by French to record only 4 hours each on their time sheets. Tr. at 273, ll. 9-10. 21. The following day they were again instructed to record 4 hours of work

although they had each worked anywhere from " to 12 hours a day, depending on 8 what was going on." When questioned by Schneider about this practice, Cramer told her that " that was just the way it was." Testimony of Schneider, Tr. at 46, ll. 2-6. 22. Plaintiffs were instructed by Cramer to only record 4 regular hours of work

per day regardless of the number of hours actually worked. Cramer explained to them that their pay was based on 4 hours a day and that their time sheets had to record 4

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hours a day. He told them that they were salaried. Testimony of Schneider, Tr. at 48, l. 18 - 49, l. 17. 23. Plaintiffs' testimony was supported by the statement of Cramer to the

Colorado Department of Labor, dated July 2, 2003. Ex. A 28-0001. Cramer wrote: Dean and Charlotte were told by me that they should record 22 hours of work per person on their time record each week and that overtime would only be approved in emergencies. Id., paragraph 1. 24. At the end of the second pay period Schneider attempted to submit a time

sheet reflecting her actual hours worked. She was told that she was required to submit hours as she had been trained or that she would not be paid; she was told to create a new time sheet. Testimony of Schneider, Tr. at 47, ll. 6-12. 25. Plaintiffs' testimony was also supported by the payroll records of Landvest

which showed that trainer French recorded 9 hours on April 10, 2002, 8 hours on April 11, 2002 and 8 hours on April 12, 2002 (Exhibit 35-051), the days when Schneider testified she was being trained by French. Plaintiffs' time sheets for the same days only record 4 hours each per day. Exhibits A1-003 and Exhibit A2-004. 26. Shortly after beginning work, Cramer told Plaintiffs that they were both

required to be at the site and available to work, during office hours (10:00 a.m.- 6:00 p.m. Monday through Friday and 9:00 a.m. - 5:00 p.m. on Saturday), unless they were performing work-related errands. Testimony of Schneider, Tr. at 40, ll. 1-2; Testimony of Wymer, Tr. at 294, l. 8. 27. Plaintiffs' testimony was supported by Cramer' first letter to the Colorado s

Department of Labor where he explained:

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On several occasions during the years I have worked for Landvest Corp. I had several managers complain that they were not being allowed by Landvest to record the full amount of hours they worked. This claim was based on the fact that Landvest work agreement required both managers to devote their full time and attention to the business of the employer. Their complaint was that they both had to devote 8 hours each or(sic) every day worked but they were only being allowed by Landvest to record 4 hours on every day worked. It was explained to the Managers that they could spend time in their apartments as long as the manager was available to answer the business phone and greet customers that came in the office. Ex. A 29-0001, final paragraph 0001- first paragraph 0002. Execution of the Employment Agreement 28. On April 10, 2002, Cramer presented Plaintiffs with a Managers

Employment Agreement. Ex. A0004 [hereafter " MEA" Plaintiffs read and signed the ]. MEA. A second MEA, identical to the first in all material respects, was signed by Plaintiffs at the request of Landvest on July 23, 2002. Ex. A0005. 29. Before they signed, Cramer reviewed the MEA (Ex. A0004) with Plaintiffs.

During that conversation Schneider did not perceive anything in the MEA to be inconsistent with Cramer' earlier representations. When they had gone over the s contract, Cramer told Plaintiffs as to compensation that " anything over the 22 hours [worked per week] is compensated." Testimony of Schneider, Tr. at 33, ll. 5-14. 30. Cramer could not be located at the time of trial and was not available

to testify. The parties stipulated to the admission of three statements by Cramer: Exhibit A 29 -- a hand written letter dated May 21, 2003 addressed to Joseph Herrera at the Colorado Department of Labor; Exhibit A 28 -- a hand written letter dated July 2,

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2003 addressed to Joseph Herrera at the Colorado Department of Labor; and Exhibit 26 -- a letter on Landvest stationary written by Landvest' attorneys for s Cramer' signature. Exhibit 26 was a document which Cramer admitted at his s deposition he did not spend very much time reading. Deposition of Cramer, p. 60, l. 24 - p. 61, l. 1. Cramer' deposition was also admitted into evidence at trial. s 31. Cramer' written statements and deposition support Plaintiffs' s testimony

that they understood that they were hired to work 4 hours a day or 22 hours a week. Cramer' statements all refer to a job duty of 4 hours a day or 22 hours a week. While s he quotes the contract language that prohibits more than a combined total of 70 hours a week, his statements and deposition never mentioned a 35 hour work week. Even the statement written by Landvest' attorneys dated June 5, 2002 (Ex. A-026) s makes no mention of an agreement to work 35 hours a week. 32. The July 2, 2003 letter (Ex. A-028) is specific about the expectation of

the parties that resident managers work 4 hours a day. Cramer wrote: The Iliff site is a busy site, it has a lot of turnover in renters and the property itself collects a lot of trash. During the time I supervised this couple they began stating concerns about the number of hours it was taking them to keep the property clean and complete the paperwork relating to the renters. They believed that no one could do the work expected by the company if they both only worked 4 hours a day . . . . I had worked that same site as a manager when it first opened in 1995 and I know from [first] hand experience that 4 hours per day per person is not always enough time to do the job as expected . . . . Ex. A28-001,002.

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33.

The form of the MEA used on April 10, 2002 by Landvest (Ex. A4) had

undergone at least four revisions since it was first used by Landvest in 1993. See Ex. 68. The contract was written by Landvest attorneys, Husch & Eppenberger, LLC. Testimony of David Mason [" Mason" Tr. at 492, l. 11. ], 34. Paragraph 5 of the MEA titled " Hours and Days of Work"states in part: In performance of the duties described herein, Employees shall not work more than a combined total of 70 hours per week. Employees shall work approximately 44 hours per week but may be called upon to work additional hours as needed. Ex. A4-0001. 35. The contract does not specifically state whether: (1) 44, 22, 35 or some

other number of hours was expected of each employee; and (2) how hours over 22, including overtime hours, would be compensated. Further, the reference to 44 hours per week does not differentiate whether 44 hours is a combined total of hours for two employees or a job duty of each employee. 36. The contract contains a prohibition at ¶ 5 against two employees working

more than " combined total of 70 hours"per week but does not prohibit an individual a employee from working more than 40 hours a week. ¶ 7 only limits employees to working within scheduled hours. There were 44 scheduled hours a week. Ex. A4-0007. 37. The contract did not require that the employees split the " combined total

of 70 hours"evenly. Testimony of Mason, Tr. at 488, ll. 4-18 - 489, l. 1; 490, l. 11. Managers could, for example, split hours 50/20. Id. at 490, l. 11. The payroll records

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of Landvest demonstrate uneven splits in hours. See Ex. 29-188-200, time sheets of Neil and Kathy Murray. 38. The ambiguities contained in the Landvest contract were created, in part,

by the decision of Landvest to use one contract for two employees. For example, the language referring to 44 hours a week was taken from an earlier form of contract used for a single employee. See Ex. 68-013, 014. Thus, when originally written the reference to 44 hours a week was intended by Landvest to refer to the duties of a single employee. No explanation was given by Defendants at trial for the reference in the contract to " approximately 44 hours per week"rather than a " combined total of 44 hours per week"or " hours per week." 22 39. Mason admitted in a memorandum to employees dated April 15, 2003 that

the contract was confusing. Ex. A9-0001, ¶¶ 2, 3. Mason admitted at trial that the language of the contract was ambiguous. Testimony of Mason, Tr. at 494, l. 4. 40. The form contract signed by employees does not unambiguously identify

how many hours each employee was to work for the biweekly salary of $415.39. 41. The contract could have used words to state and disclose that each

employee was " agreeing to work between 22 and 35 hours a week for a fixed salary of $10,800.00" if that had been the intention of Landvest. , 42. The ambiguous paragraph 5 (Ex. A4) served the business purposes of

Landvest by making the agreed pay of $21,600.00 for two employees appear more generous and by allowing potential employees to believe that they would earn $9.44/hour. Mason admitted he never told any resident manager that they would be paid $5.93 or $5.94/hour. Testimony of Mason, Tr. at 492, l. 3.

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43.

The MEA was interpreted by the law firm of Husch & Eppenberger, LLC ,

Landvest' attorney, for the Colorado Department of Labor in May of 2003. Ex. 1. The s interpretation of the contract language made by the Landvest attorneys who wrote the employment agreement was that it required 22 hours of work a week. Ex. 001-004 (second full paragraph - " She was to work 22 hours per week; accordingly, her base rate of pay was $9.44 per hour; her overtime rate was $14.16 per hour" The lawyers ). who wrote the contract did not discern the interpretation of the MEA advanced at trial by Defendants. 44. Circumstances surrounding the execution of the MEA which are relevant

to its interpretation are: a. Cramer' representation to Plaintiffs that they would work 22 s hours a week; and b. Cramer' representation that additional work beyond that discussed s (22 hours a week) might be required and that the work would be compensated. 45. Plaintiffs reasonably interpreted the MEA to be an agreement to work 22

hours per week each for a salary of $10,800.00 each. Record Keeping at Landvest 46. Plaintiffs were instructed that they could only record and submit 4 regular

hours per day and that they could not submit overtime hours for routine work. Testimony of Schneider, Tr. at 51, ll. 11, 12. Her testimony was supported by the written statement of Cramer, wherein he wrote " . . overtime would only be approved in . emergencies." Ex A28-0001, ll. 13,14. An example of when overtime work would be

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approved given to Schneider by Cramer was a circumstance where no relief manager was available. Testimony of Schneider, Tr. at 51, l. 25 - Tr. at 52, l. 9. All recorded overtime had to be approved by a regional manager before being submitted to Landvest for payment. Testimony of Jeff Etter [" Etter" Tr. at 669, l. 14. ], 47. Schneider did not attempt to submit more than 4 regular hours of time per

work day after being instructed not to do so. However, Schneider repeatedly attempted, with her regional manager' approval, to submit additional hours for s payment which were worked outside of scheduled hours. She testified, and the business records of Landvest confirmed, that she was repeatedly denied payment for recorded hours which were worked outside of scheduled business hours and which were worked in excess of forty hours per week. Testimony of Schneider, Tr. at 58-72; Exs. A17, A18, A23, A27, A28, A29. 48. Thereafter and throughout their employment Plaintiffs recorded 22 regular

hours of work per week although they regularly worked many more hours " the off clock." At times, and when approved by their supervisor, they recorded additional hours as " overtime hours" . 49. The testimony of other witnesses supported Schneider' testimony that s

she was only allowed to record 4 regular hours a day. Shirley Noe [" Noe" a former ], resident manager at the Iliff site, testified that she was instructed by Mason to only record a total of 8 hours per couple per day. Testimony of Noe, Tr. at 252, ll. 11- 12. Louise Adolphson, the resident manager of the Buckley site, testified she was trained to record 4 hours per day. Testimony of Louise Adolphson, Tr. at 166, l. 18. Earl

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Adolphson testified that he was told to " down"4 hours a day. Testimony of Earl put Adolphson, Tr. at 337, l. 7. 50. As the regional manager for Colorado and Plaintiffs' direct supervisor,

Cramer was authorized by Landvest to train Plaintiffs in the record keeping practices of Landvest, to represent the pay plan to them, and to instruct them on how to fill out time sheets. He was also authorized to approve and deny requests for overtime pay. Testimony of Mason, Tr. at 438, l. 8 - Tr. at 439, l. 4; Deposition of Cramer, p. 33, l. 11-14. 51. At trial, there was substantial evidence of a corporate policy of requiring

employees to only record 4 hours of work per day, which extended beyond the regional manager, John Cramer. The first complaint of the practice was from a regional manager, Don Wooldridge, who worked in Texas in 1998. Ex. 71-004. Cramer testified at his deposition that he was following a company policy -- " s basically what that' was put out by the company. . ." Deposition of Cramer, p. 22, ll. 2-3. Noe testified that she was instructed by Mason to record 8 hours for two employees. Testimony of Noe, Tr. at 252, ll. 11-12. The volume of uniform time sheets filled out by employees prior to September of 2003 which uniformly record exactly 4 hours a day is substantial evidence of the corporate policy. See Ex. 25 (time sheets of B.F. and Esla Cosper); Ex. 29 (time sheets of Kathleen and Neil Murray); Ex. 31 (time sheets of Leo and Betty Caire, who complained to John Cramer that they were being required to only record 4 hours of work) (Deposition of Cramer, p. 31, l. 11- p. 32, l. 4); Ex. 35 (time sheets of Judi and Stan French); Ex. 39 (time sheets of Van Kirk); Ex. 43 (time sheets of Barbara and Ross Davis); Ex. 45 (time sheets of Linda and Bill Shooley); Ex. 47 (time sheets of

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Glenda and Bill Andrews); Ex. 55 (time sheets of David Rix, Leslie Schump). When employees recorded more than 22 regular hours a week, there is evidence that time sheets were changed to show 22 hours a week. See Ex. 29, 35, 55. 52. Plaintiffs proved by a preponderance of the evidence that throughout

their employment they prepared time sheets according to instructions provided by their trainer, Judi French, and according to instructions provided by their supervisor John Cramer, and recorded only 22 regular hours a week. 53. At all times relevant to their employment, Cramer knew or should have

known that the time sheets were not an accurate representation of Plaintiffs' actual hours worked. He admitted as much in a written statement to the Colorado Department of Labor dated May 22, 2003. Ex. A0029. 54. Mason knew or should have known that Plaintiffs' time sheets did not

record actual hours worked. Notations on time sheets indicate that Mason was personally involved in granting or denying requests for overtime compensation which included review of resident manager' time sheets. See Ex. A1-0080; Ex 25-081. s Ex. 39-028. He personally authorized payment of, or denial of, individual resident manager' requests for overtime compensation. The uniformity of the time sheets s submitted by all resident managers in the Colorado and New Mexico region prior to June, 2003 should have provided notice to anyone reviewing the time sheets that they did not reflect actual hours worked. Additionally, it is not plausible that employees working under different regional managers would consistently record exactly 4 hours per day of work or 22 regular hours unless they were instructed to do so by supervisors. It also is not plausible that a uniform company wide practice of recording

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only 4 hours per day of work would exist unless regional managers had been told by management to instruct resident managers to record their time in this manner. 55. Landvest never recorded in any payroll record a regular hourly rate or an

overtime rate for any resident managers during the time that Plaintiffs were employed by Landvest. Landvest never disclosed in writing a regular hourly rate to resident managers during the time that Plaintiffs were employed by Landvest. Landvest never disclosed to resident managers the number of regular hours they were being compensated for, the number of overtime hours they were being paid for, the overtime rate being used, or the calculation of the overtime rate. 56. The record keeping practices of Landvest made it impossible to determine

based on an examination of the payroll records at what rate employees were paid, how many hours they were paid for, or whether time and a half was paid for recorded hours worked over 40 in a single work week. An example are the payroll records of Judi French for the week ending April 14, 2002. Exs. 35-051, 35-052, 39-021. The employee recorded 43 + 22 hours in a single work week (Exs. 35-051, 35-052). The employee was paid $311.50 in hourly wages plus her salary of $415.39. There is no indication that she was paid at a premium rate for hours over 35. It appears by deduction that she was paid at $7.00/hr for 40 hours and $10.50 for 3 hours, a formula which bears no relationship to the requirements of the Fair Labor Standards Act or Etter' claim that the regular rate was $5.93/hr. Testimony of Etter, Tr. at 722, l. 10. s 57. Landvest' practice of failing to record all hours worked allowed it to claim s

at trial that when it disallowed payment of recorded overtime hours of employees such as Schneider that the overtime hours were actually non-overtime hours.

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58.

All indications from the payroll records of Landvest are that Landvest was

paying a fixed compensation for 22 hours a week. Hours recorded in addition to 22, when allowed, were paid at hourly rates which ranged from $7.75 to $14.16 an hour. 59. No mutual understanding existed that the fixed compensation was a

salary for up to 35 hours of work a week because this was never communicated to Plaintiffs. 60. Landvest' record keeping practice of failing to record a regular rate for s

employees allowed it to claim at trial that it paid more that it paid more than time and a half for recorded overtime hours based on an artificially deflated regular rate. 61. There was no evidence in any pay record from before June, 2003 that any

resident manager was actually paid at a $5.93 hourly rate as Landvest claims. There is no pay record where an employee recorded 35 hours per week and was paid $415.39 for two weeks nor is there a payroll record where an employee' recorded hours worked s was multiplied by $5.93. The Landvest Pay Plan 62. Landvest attorneys were involved in the creation of the Landvest pay

plan. Testimony of Etter, Tr. at 674, ll. 13, 14. The plan was referred to at trial as a " fixed work week salary pay plan." The plan was never recorded in any written manual, written payroll procedure, memoranda to payroll clerks, or other document. See response to document request No. 10, Ex. 7-007. No memoranda to employees was produced at trial explaining the plan to employees. The only place where the pay plan existed in writing was in the MEA. Testimony of Mason, Tr. at 420, ll. 14-16.

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63.

A pay plan providing for payment of $415.39 for as many as 35 hours of

work and premium pay for hours worked over 35 is not described in the MEA. The MEA describes " overtime"as work that cannot be performed within the scheduled hours"except in the case of emergencies. A4-0002, ¶ 7. To the extent the MEA provides for the payment of overtime, it ties the payment of overtime pay to work performed outside scheduled hours, not work in excess of 35 hours per week. A4-002, ¶ 7 and Exhibit " to A4. B" 64. Defendants did not offer any evidence at trial that the Landvest " fixed

work week salary pay plan"was ever communicated to Plaintiffs. Neil Murray testified that he explained the pay plan at a meeting of resident managers. However, Louise Adolphson testified that the meeting where the pay plan was discussed occurred after Plaintiffs left employment with Landvest. Testimony of Louise Adolphson, Tr. at 197, l. 5. 65. At trial Etter testified that he is a certified public accountant and the CFO

of Landvest. He testified that he oversees the payment of overtime at Landvest (Testimony of Etter, Tr. at 645, ll. 9,10) and is responsible for compliance with the Fair Labor Standards Act. Id. at 689, l. 5. At trial he demonstrated little working knowledge of the Fair Labor Standards Act. As an example, he was unable to calculate a regular hourly rate which included lodging. Id. at 651. Etter also appeared ignorant of the record keeping requirements of the Act, and testified that Landvest had selected payroll software that did not allow it to record a regular hourly rate. 66. At trial Mason and Etter testified that a " fixed work week salary pay plan"

existed at Landvest which compensated resident managers for up to 35 hours at a

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biweekly salary of $415.39. Testimony of Etter, Tr. at 647, ll. 8, 9. They were not consistent in describing the " fixed work week salary plan"which they claimed existed between April 10, 2002 and April 3, 2003. At times Etter testified that " basically a premium rate"was paid for any hours over 22 and " some occasions 22, and in, you in know, over 35 hours." Id. at 646, l. 18. At times Etter testified that employees received premium pay for hours worked over 22 in a work week. Id. at 662, l. 17. At other times he testified that Landvest used " hours to calculate overtime." Id. at 660, ll. 21-23. 35 He testified that in some circumstances where employees worked between 22 and 35 hours they received premium pay. Id. at 678, ll. 22-24. He testified that those circumstances were " training emergencies, no relief manager." Id. at 679, l. 1. 67. Although there were thousands of pages of payroll records admitted into

evidence (including time sheets and payroll records for over 40 employees), there was no pay record showing payment to resident managers at an overtime or premium rate only after they exceeded 35 hours. Most records show hours over 22 recorded in the " overtime"column of the time sheet and payment of those hours at $14.16/hr. Because Landvest instructed resident managers to only record 22 regular hours per week, there are very few pay records from before April, 2003 which record 36 or more hours. 68. When asked about the few time records which did exist where employees

recorded more than 35 hours in a single work week, Etter could not apply the pay plan he claimed existed to show how the employee' pay was calculated. When asked to s calculate LaRue Van Kirk' pay from her time sheet (Ex. 39-030), he declined to s calculate the pay. Testimony of Etter, Tr. at 701-711. When asked to apply the pay

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plan to Esla Cosper' time sheet (Ex 25-083), he declined claiming that the Cospers s were operating under a different agreement. When asked to apply the pay plan to Judi French' time sheet for April, 2002 (Ex. 35-051), he declined. Testimony of Etter, Tr. at s 719-721. 69. The first pay record in evidence where resident managers appear to be

paid at a premium rate for hours over 35 are the pay records of the Fishers beginning in June of 2003. Ex. 65. 70. There is no evidence in the record other than the testimony of Etter and

Mason that the " fixed work week salary pay plan"as described by them was used by Landvest before June, 2003 when it was first applied to calculate the pay of Warren and Diane Fisher. 71. Some employees, such as Plaintiff Schneider and Louise Adolphson,

staffed the site office during all regular business hours, which were either 40 or 44 hours depending on site occupancy. This work was performed without knowledge of a " fixed work week salary pay plan"which, if it existed as described by Mason, would have paid them additional compensation for all hours worked over 35. 72. Landvest' failure to communicate its fixed work week pay plan to the s

resident managers, if it existed, served Landvest' purposes by allowing Landvest to s avoid paying compensation for hours worked between 22 and 40 and for all hours worked over 40 in a single work week. 73. It also served Landvest' purposes to not record all hours worked by s

employees, and to instead require employees to only record 22 hours. The practice allowed Landvest to represent to the Colorado Department of Labor that Plaintiffs only

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worked 22 hours per week and were therefore not entitled to overtime. The practice also allowed Mason to disallow overtime hours recorded by employees, and claim that they had not worked over 35 hours and therefore were not entitled to additional pay. 74. The practice of paying fixed compensation­ " salary" for fluctuating a ­

hours, as employed by Landvest, created confusion in the minds of Plaintiffs and other employees who were unclear as to whether they were hourly employees and as to whether they were entitled to overtime compensation. 75. As applied to Plaintiffs, Landvest' pay plan did not provide Plaintiffs with s

compensation at one and one half times their regular hourly rate for all hours worked over 40. 76. Also as applied to Plaintiffs, Landvest' pay plan provided compensation s

at a rate of $4.65 per hour for work weeks when Plaintiffs worked 44 hours a week during scheduled business hours. Credibility of Witness Jeff Etter 77. Etter made many assertions during his testimony which were inconsistent

with the weight of the evidence. As a result, I find that his testimony was unpersuasive. For example, he refused or was unable to answer many questions which should have been easy for a person with his background and training. 78. He denied that there was any pattern to the payroll records of the resident

managers of Landvest before June of 2003 when thousands of pages of time sheets which were in evidence demonstrated an obvious pattern of 4 recorded regular hours per day per employee.

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79.

He admitted that he had only seen some time sheets by 2003, although

he had been supervising the payroll department for three years at that time. Testimony of Etter, Tr. at 694, l. 6. 80. He claimed that the hourly rate of resident managers was disclosed to

them in the MEA. Ex. A4. 81. hourly rate. 82. He claimed that he did not remember any change to the pay practices of He claimed the payroll software used by Landvest could not print an

Landvest in 2003, when the payroll records show employees began recording actual time and Landvest began paying for hours over 35 (beginning with the Fishers and the O' Dells in June of 2003 and including all employees after September, 2003). Testimony of Etter, Tr. at 693, ll. 18-20. 83. He claimed that the value of lodging was included in the premium rate for

resident managers but did not know what amount was allocated for lodging. Id., Tr. at 648, ll. 3-12. He also claimed that he " tested"the rate. Id. at 691, l. 4. The Iliff Site 84. Plaintiffs were assigned to a large site operated by Landvest in Colorado,

which was referred to at trial as the Iliff site. The site consisted of 456 units and covered more than 2 acres. Ex. A52. The description of the site provided by Plaintiffs' supervisor was of a busy site with a high turnover of tenants which collected lots of trash. Ex. A 28-001, 002. 85. Wymer testified that the site was located on a busy street and across from

a casino. He testified that tickets and trash were blown on to the site from the casino.

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Work Performed By Dean Wymer 86. Wymer performed the outdoor maintenance required to maintain the Iliff

site to the standards of Landvest. Regional managers who conducted site inspections, which were conducted without notice, praised his work with comments such as " great job,"" very fine job"and " looks good!" site 87. Landvest' standards for site maintenance were high according to the s

operations manual and site inspection reports. According to Wymer' testimony and s the Landvest Manual he was expected to and did perform all maintenance and repairs required to keep the site " market ready"at all times. Ex. A40-012, Landvest Manual. The Manual describes in detail the types of repairs expected of a resident manager which included: minor electrical, plumbing and mechanical, caulking and painting, and snow and ice removal. Ex. 40-013. 88. Wymer testified that he had a regular daily maintenance routine which he

described as beginning at 10:00 a.m. He performed a walking security check of the entire facility. He then returned to the office to retrieve a golf cart, which he used to pick up trash from the site. He then walked the front of the property picking up any trash that had accumulated during the night and swept the driveway and entry to the facility. In between the performance of these tasks, Wymer would return to the office to check in with Schneider to see if she needed him to show units or assist tenants. If needed, Wymer would interrupt his routine to provide whatever assistance was necessary. After completing the morning clean-up, Wymer would drive to the bank to make the daily deposit, and at least three times per week he would go to the Post Office as well. After returning from the bank and/or Post Office, Wymer would check in

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with Schneider in the office for any vacates or units that needed cleaning. If there were none at that time, he would then perform another security check. 89. Wymer used his afternoons to perform tasks that were not required on a

daily basis such as: painting buildings, trim, bollards, and striping, fixing and repairing door latches, seals, and bolts that had pulled out of the drywall, cleaning vacated units, performing maintenance on the golf cart and the fences, and seasonal maintenance, such as pulling weeds, shoveling snow/de-icing, or sweeping and blowing leaves. Wymer made trips to the hardware store and assisted at other sites. Testimony of Wymer, Tr. at 303, ll. 21-25. His work day in the afternoons was not predictable. Any of his maintenance tasks would be interrupted if Schneider or any tenants needed assistance. Id. at 278-281. 90. The evidence was that Wymer also answered the phone in the office

when Schneider required breaks, accepted payments from tenants, performed " tracing" on delinquent tenants, monitored the certified mail that was required on " lock outs"and performed marketing for the site. Testimony of Schneider, Tr. at 40, l. 24 - 41, l. 3. 91. Wymer testified that he also had contact with tenants either to assist

tenants or resolve tenant complaints about once a day after business hours. Testimony of Wymer, Tr. at 284, ll. 13, 14. 92. Wymer performed at least one security check each day before he went to

bed and sometimes performed two outside of business hours. Id. at 287. He performed security checks on Sundays and on his days off. Id. at 288, ll. 15-20. Security checks usually took him 30 minutes to perform. Id. at 287, l. 8.

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93.

He assisted the relief manager on his days off with tasks she could not

perform such as repair of doors. Id. at 289, l. 15. On Sundays he performed cleaning and security checks and worked 4 to 5 hours. Id. at 301, l. 1. He performed other duties requested by Landvest after business hours such as watering the lawn during the night. He testified that he turned on a sprinkler system to water the lawn but stayed outside while the sprinklers were running to watch for the water police. Id. at 286, l. 9. 94. Wymer testified that he was able to go to the apartment and not work

approximately twice a week for periods of up to two hours during scheduled business hours, otherwise he was occupied with work. Testimony of Wymer, Tr. at 283, ll. 2123. The job duties of resident manager at the Iliff site required a minimum of 8 hours a day, at times he worked 9 to 91/2 hours a day, for example when there were leaves on the ground. Id. at 278, ll. 12-13. He testified that during the blizzard of March 2003, he worked as many as 12 hours a day for three days. 95. Wymer' testimony was supported in part by the business records of the s

employer. The site inspection reports demonstrated that the site was maintained to the employer' high standards. Ex. 65. All site inspection reports, including one performed s six weeks before Wymer terminated his employment, are positive. Id. The manager' s job description attached to the MEA is comprehensive. The job description requires, for example, security checks of the " entire complex"six times a day as well as marketing to outside businesses and " helping tenants solve problems; taking care of complaints"in addition to maintenance duties." A4-0006. The Landvest Manual describes Landvest' s expectations that managers will take full responsibility for the property including painting and snow shoveling. Ex. 40-0012- 0016. Exhibit A50 describes Landvest' s

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expectations that individual bollards would be repainted when scraped, and that tree trimming and tree removal as well as fence post replacement would be performed by the resident manager. Ex. 50-001. 96. Wymer' testimony was also supported, at least in part, by the testimony s

of other witnesses. Shirley Noe testified that when her husband, John Cramer, managed the Iliff site he worked at least 8 hours a day. Testimony of Noe, Tr. at 251, l. 25. Schneider testified that Wymer worked 6 to 8 hours a day not including work performed after business hours and work on Sundays. Testimony of Schneider, Tr. at 223. l. 9; Tr. at 239, ll. 11-15. Earl Adolphson testified that the job of resident manager was a full time job requiring more than 40 hours a week. Testimony of Earl Adolphson, Tr. at 340, ll. 13-14. Earl Adolphson frequently recorded more than 40 hours on his time sheets when first instructed to record actual time, even though his site was smaller, was closed on Sundays and he did not record trips to the bank and security checks performed outside business hours. Id. at 364, ll. 7-9, 363, l. 13; Ex. A61- 0109, 0111, 0114, 0117. He was subsequently told to " keep his hours down." Testimony of Earl Adolphson, Tr. at 354, l. 10. Louise Adolphson testified that very rarely did Earl perform his job in less that 8 hours. Testimony of Louise Adolphson, Tr. at 182, ll. 20, 21. Warren Fisher consistently recorded 40+ hours of work for the first 3 months of his employment. Ex. 65-0005-015. Charles Van Kirk recorded 8 hours a day throughout his employment, but only submitted 22 hours on the recap sheet for payment. Ex. 39. 97. Wymer proved by a preponderance of the evidence that he performed

work for which he was not properly compensated. He produced evidence to show the amount and extent of the work performed as a matter of just and reasonable inference.

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98.

His testimony supports a reasonable inference that he worked at least 36

hours a week during business hours. On Sundays he worked an additional 4-5 hours performing trash detail, security checks, cleaning the office and assisting tenants. The evidence supports the inference that Wymer worked 40 hours a week total. Further, throughout his employment, the evidence shows that Wymer regularly performed work outside regular hours, such as security checks and assisting tenants. While the amount of overtime work performed cannot be established with precision, I find that allowing 2 hours per week for security work and for work dealing with tenants and monitoring the facility is fair and supported by the evidence. Credibility of Witness Neil Murray [" Murray" ] 99. Murray' testimony was contradicted by the testimony of other witnesses. s

Murray testified that the " end of month"report only required half an hour to complete. Testimony of Murray, Tr. at 569, l. 4. Noe testified that it took 2 ½ to 3 hours. Testimony of Noe, Tr. at 259, ll. 7-10. Louise Adolphson testified it took more than 2 hours to prepare. Testimony of Louise Adolphson, Tr. at 188, l. 25. Murray testified that all daily maintenance including sweeping, trash pick up, weed removal and cleaning units, could be completed in one hour a day. Testimony of Murray, Tr. at 582, ll. 11-12, Tr. at 576, l. 21. He testified that he could go to the bank, conduct business and return to the site in 10 or 15 minutes. Id. at 575, l. 24. He could remove a stain from concrete in 5 minutes. Id. at 577, l. 5. 100. Murray volunteered on direct examination that he encouraged resident

managers to go to their apartments during their " four hour shift." Id. at 583, ll. 6-11. But when asked at deposition about Landvest' requirement for staffing the office, he s

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stated that the office had to be open and that the manager had to " there." When be asked what " there"meant at deposition he said managers had to be " be physically"in the office. Id. at 599, ll. 16-19. 101. Murray testified on direct examination that the job could easily be done in

22-35 hours. Id. at 586. At deposition he testified that the job could " easily"be done in 22 hours. Id. at 598. He adopted that testimony at trial. Id. Yet as regional manager he was supervising the Adolphsons, the Van Kirks and Schneider and Wymer, all couples who had the wife perform full time duties in the office. Murray' s testimony that the job could be performed in 22 hours is not credible since that would require the husband to spend 22 hours in the office and leave him no time to perform maintenance work. 102. Murray claimed that he worked full time at the Iliff site for 30 days after

Plaintiffs resigned but his time sheets record no time at the Iliff site. Instead, the time sheets show him working at the Austin Bluffs site in Colorado Springs at the time, working 10:00 a.m. to 2:00 p.m. Ex. 29-135-144. 103. Murray testified at deposition that he had no recollection of anyone ever

telling him that he was supervising salaried employees. Testimony of Murray. Tr. at 595, ll. 15-16. He admitted, however, at his deposition that he was supervising hourly employees. Id. at 596, l. 1. At trial he testified that he explained to everyone he supervised that they were salaried and that their pay was for between 22 and 35 hours and that his testimony was " absolutely consistent." Id. at 597, l. 8. 104. Murray testified that Wymer' job performance declined after Landvest s

denied Schneider' request to lower her salary in early December 2002. Yet the only s

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documentation he created after December, 2002 states " office and site look good!" Ex. 65-008. 105. Murray testified at trial that he accurately recorded his hours worked, yet

every time sheet he submitted for a 2 year period records exactly 4 hours of work. Ex. 29. He claimed he rarely had to help a customer after 5:00 p.m. Testimony of Murray, Tr. at 603, ll. 14-17. He was unable to answer whether he performed all required security checks during his 4 hour shift. Id. at 602-603. 106. He testified that hand shoveling of snow was not the responsibility of

resident managers. Id. at 605, ll. 17-18. He testified that resident managers were not required to perform hand shoveling to prevent flooding of units. Id. at 606, l. 3. Yet the Landvest Manual states: " Hand shoveling should be done to avoid snow melting and running into small units." Ex. 40-015, paragraph 3. 107. Murray denied that he told Louise and Earl Adolphson that he was

recording 35 hours on his time sheets and that they could do the same. Testimony of Murray, Tr. at 608, l. 22 - 609, l. 10. They both testified that he did. Testimony of Earl Adolphson, Tr. at 359, l. 1; Testimony of Louise Adolphson, Tr. at 178, l. 5. Work Performed by Charlotte Schneider 108. The evidence was that Schneider was a conscientious and serious worker

who carefully followed Landvest' detailed procedures. She testified credibly that she s remained in the office working, except for short breaks during scheduled business hours. 109. Some of the tasks Schneider performed for Landvest included: staffing

the office 40 or 44 hours a week; direct leasing to new tenants; contact with potential

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tenants; answering phones; helping tenants " solve problems" resolving complaints; ; handling " local books" recording information about tenants and units; accepting rental ; payments; reminding tenants to make payments by phone and written correspondence; helping to maintaining the complex in " good condition and good order" collecting ; payments from locked out tenants; reopening locked units; monitoring tenants activities; monitoring gates and computerized security systems; representing the company to the public; preparing days-end, week-end, month-end and other reports; and transmitting them to the home office. Ex. 068-018, 019. 110. It was Landvest' management' policy that one person be in the office s s

during office hours. Testimony of Schneider, Tr. at 42, ll. 8-10. This requirement was also evidenced by: a. The site inspection report form which asks whether the manager

was in the office; b. Landvest managers' expectation that the telephone be answered

during office hours. Cordless phones were not provided prior to April, 2003, and the phone could not be answered from inside the apartment. Testimony of Schneider, Tr. at 42, l. 11; c. Landvest residents were to remove bells from their desks. Id. at

42, l. 20-21; and d. Landvest managers requested that doors between offices and

apartments be closed. Id. at 43, l. 7. 111. Plaintiffs fulfilled their duty by having Schneider staff the office during

regular business hours. She remained in the office working during business hours and

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spent less than 30 minutes a day in the apartment. Testimony of Schneider, Tr. at 44, l. 10. 112. She testified that she was kept busy answering telephone calls, making

collection and other calls (Id. at 103, ll. 1-6), leasing units, accepting payments, preparing reports for Landvest, processing " vacates,"making bank deposits, filing and performing numerous other duties and procedures as described in the Landvest Manual. Ex. 40. 113. In addition, from November 2002- March 2003 Schneider worked 4 hours

on every Sunday staffing the office. Ex. A1; see also Pls.' Re Calculation of Br. Damages filed December 29, 2005.1 She also cleaned the office on Sundays. Testimony of Schneider, Tr. at 96, l. 6. Schneider worked between two and three hours every week after 6:00 p.m. preparing end-of-day, end-of-week, and end-of-month reports. Id. at 38, l. 25 - 39, l. 1. She devoted time after office hours to dealing with tenants who had been locked out of their units, potential tenants who were seeking to lease units (id. at 100, l. 24) and spent time twice a month preparing late notices after hours. Id. at 110, ll. 16-17. While the amount of work performed cannot be established with precision, I find that allowing 3 ½ hours per week for overtime work is fair and supported by the evidence. 114. Schneider' testimony was supported by the testimony of other witnesses. s

Shirley Noe testified that she worked 9 to 9 ½ hour days managing the Iliff site and did not take lunch breaks. Testimony of Noe, Tr. at 247, l. 16. Louise Adolphson testified

While Plaintiff Schneider claims that she worked 4 hours on Sunday for 19 weeks, she seeks compensation only for 18 weeks.

1

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that it was difficult to manage a smaller site, the Buckley site, in fewer than 40 hours a week. Testimony of Louise Adolphson, Tr. at 184, ll. 14-15. Knowledge of Management of Work Performed By the Plaintiffs A. 115. David Mason Schneider complained directly to Mason that she was not being paid for

all hours worked. Testimony of Schneider, Tr. at 86, ll. 11-16. His response, which was to the effect that those who liked Landvest stayed and those who didn' left, t demonstrated a prior knowledge of or a lack of interest in paying her for all hours worked. Cramer also told Mason that Schneider was complaining about not being paid for all hours worked. Deposition of Cramer, p. 49, l. 15 to p. 51, l. 7. 116. The evidence was that Mason had authority over the pay practices at

Landvest (Testimony of Mason, Tr. at 382, l. 7) and was involved in the implementation of the overtime policies of Landvest, including intervening in pay matters involving compensation to individuals for hours recorded on their time sheets. He personally authorized payroll clerks to alter time sheets to delete overtime hours submitted by resident managers that did not conform to Landvest' overtime policy. See Ex. s A1-0080; Ex. 25-081. 117. Mason knew or should have known that Plaintiffs' time sheets did not

record actual hours worked. Records of Landvest indicate that Mason personally reviewed at least some resident manager' time sheets which recorded overtime. See s Ex. A1-0080; Ex. 25-081; Ex. 39-028; Ex. A36 (memo disallowing payment for attending a sales meeting). The evidence was that he personally authorized payment of, or denial of, individual resident manager' requests for overtime compensation. While he s

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claimed at trial that time sheets recording overtime were brought to him on an ad hoc basis by clerks, the evidence was that he was routinely involved in denying requests for pay. For example, Mason disallowed a single hour' pay for a manager' snow s s shoveling. Ex. 39-28. 118. The uniformity of the time sheets submitted by all resident managers in

the Colorado and New Mexico region prior to June, 2003 provided or should have provided notice to anyone reviewing the time sheets that they did not reflect actual hours worked. Additionally, it is not plausible that employees working under different regional managers would consistently record exactly 4 hours per day of work or 22 regular hours unless they were instructed to do so by supervisors. It also is not plausible that a uniform company wide practice of recording only 4 hours per day of work would exist unless regional managers had been told by management to instruct resident managers to record their time in this manner. 119. Mason acted in the interests of Landvest in relation to the Plaintiffs by

formulating record keeping and overtime policies which insured that actual hours worked would not be recorded and by disallowing recorded overtime hours worked. Considering the level of interest Mason showed in controlling overtime costs by denying payment for recorded overtime, it is not credible that someone other than Mason was responsible for formulating record keeping and overtime polices at Landvest. These policies insured that employees, including Plaintiffs, would not be paid for all hours worked. 120. he wrote: Mason wrote a letter on December 17, 2002 to Schneider (Ex. A19) where

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Slanting one manager' duties would compromise the s minimum wage structure without having to include the value of the apartment as income. Ex. A19. 121. Mason knew on December 17, 2002 that the Landvest pay plan was

based on payment of minimum wage for hours worked under 40 in a work week. It is not believable that the salary chosen by Landvest was coincidentally just about a dollar over minimum wage. (Biweekly salary = 415.39 /2 weeks = 207.70, 40 hours x $5.15 minimum wage = $206.00). If Mason believed Schneider was only working 22 regular hours a week as reported on her time sheets he could have lowered her salary, as he had done for others, without compromising " minimum wage structure." the 122. Mason maintained at trial that the payroll records of Landvest which

were admitted into evidence accurately recorded the hours worked by resident managers. Testimony of Mason, Tr. at 395, l. 14. This testimony is not credible when the time sheets made by resident managers after they were instructed to record " actual" hours worked (Ex. 59) are compared with the 4 hour a day time sheets. Compare Ex. A61-001-103 with Ex. A61-104-118; compare Ex. A-65 (Fisher, hired June, 2003) with Ex. A-67 (French); compare Ex. 51 (Paccione) with Ex. A63, A64 (Beck). 123. I also find that Mason was aware or should have been aware that the job

duties of resident manager required more than the 4 hour shift recorded on almost all time sheets created at Landvest before June 2003. He knew or should have known that all six required security checks (Ex. A4-006 para. 8) could not be performed during the recorded 4 hour window. He knew or should have known that if one of the two coworkers was working in the office 4 hours a day he or she would have no time for

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maintenance and repair duties. He knew or should have known that a manager could not perform maintenance and staff the office at the same time. I thus do not find credible Mason' testimony that the Landvest records produced at trial were accurate s records of hours worked (Testimony of Mason, Tr. at 395, l. 14) and that Landvest always kept accurate records of hours worked by employees. Id. at 415, l. 18. 124. I also do not find credible Mason' testimony that he had been deceived s

by Plaintiffs' time sheets which recorded 22 regular hours and that no one had any reason to believe that they worked more than 22 hours. Id. at 449, ll. 12-13, 21. Schneider told him that she was not being paid for all hours worked. Testimony of Schneider, Tr. at 86, ll. 11-16. Cramer also told Mason that Schneider was complaining about not being paid for all hours worked. Cramer Deposition, pp. 49-51. 125. Also, I do not find credible Mason' testimony that denied that the s

September 30, 2003 memorandum instructing employees to record actual hours worked (Ex. 59) was a change in the record keeping practices at Landvest (Testimony of Mason, Tr. at 470, ll. 22-23), and that recording actual hours worked had been the policy of Landvest " along." Id. at 473, l. 8. It appears that the change in record all keeping at Landvest in 2003 was accompanied by a lowering of the overtime rate to $8.90/hour. See Ex. A65-005. It is reasonable to believe, based on Mason' direct s involvement in the overtime policies at Landvest, that the decision to lower the overtime rate was either made by him or that he was informed of the change. B. 126. John Cramer Cramer was authorized by Landvest to train Plaintiffs, to represent the

pay plan to Plaintiffs, to supervise Plaintiffs, and to review time sheets and disallow or

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approve hours submitted for payment. Testimony of Mason, Tr. at 438-439; Deposition of Cramer, p. 33, l. 11- 14; see also Testimony of Etter, Tr. at 669, l. 14. 127. Schneider told Cramer that she and Wymer were working more than the

hours recorded on their time sheets. Testimony of Schneider, Tr. at 45, l. 20 - 46, l. 2. Deposition of Cramer, p. 25, l. 25- p. 26, l. 5. Plaintiffs' Regular Rate of Pay 128. The evidence supports Plaintiffs' argument that their regular rate of pay

was $9.44 per hour. 129. This is supported by a letter dated May 22, 2003 written by Michael

Gillespie, Landvest' lawyer at Husch and Eppenberger, LLC. That letter, analyzing s the MEA for the Colorado Department of Labor, states that the regular hourly rate of pay was $9.44/hour. Ex. 001-004, paragraph 3. Mason admitted that he read this letter before it was sent to the Colorado Department of Labor. Testimony of Mason, Tr. at 432, l. 11. 130. Further, Plaintiffs' pay for a two week period was $415.39. $415.39

divided by 44 (the number of regular hours recorded on the time sheets for a two week period) is $9.44. 131. Defendants have taken inconsistent positions in this litigation concerning

the regular rate of pay of Plaintiffs. At times Defendants claimed that the time sheets are accurate and that Plaintiffs only worked 22 hours a week. See Final Pretrial Order at 4; Testimony of Mason, Tr. at 395, l. 14. At other times, Defendants argued that Plaintiffs' regular hourly rate fluctuated from week to week. Ex. 006-004. Defendants

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have also claimed that Plaintiffs' hourly rate was $5.94 per hour. Testimony of Etter, Tr. at 649, ll. 6, 7. 132. Landvest' records do not record a fluctuating regular rate. The payroll s

records show fixed compensation for Plaintiffs ($415.39 biweekly) and a fixed number of regular hours worked (22 hours per week). 133. As represented by Cramer to Plaintiffs, the salary was intended to

compensate for 22 hours a week. Testimony of Schneider, Tr. at 49, ll. 12-17. If Defendants had an intention that the salary was to compensate for 35 hours, that intention was not clearly communicated to Plaintiffs and was not communicated to Cramer. If Cramer understood that the agreement between the parties was for 35 hours of work per week for a salary, as advocated by Defendants, Plaintiffs' inability to complete the work required by Landvest in 4 hours a day would not have been the subject of Cramer' correspondence with the Colorado Department of Labor. If the s Plaintiffs had agreed to work 35 hours a week, as Defendants claimed at trial, the subject of the Cramer correspondence would have been whether 6+ hours a day was a sufficient amount of time to complete the work required by Landvest. Cramer' s statements instead consistently refer to 4 hours a day. Ex. A28, Ex. A29. 134. There was not a mutual understanding that the salary was intended to

compensate for 35 hours of work per week. Estoppel 135. Landvest knew or should have known, through its agents Cramer and

Mason, of the fact that Plaintiffs were working more than 22 hours per week. See ¶¶ 53-54, 115, 117-118, 123-125, 127, supra. Accordingly, I find that Defendants were

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not misled by Plaintiffs' time sheets which recorded 22 regular hours of work per week. Defendants also were not misled by Plaintiffs' failure to record all overtime hours worked on their time sheets. 136. The plan to record 22 regular hours of work per week rather than

actual hours worked originated with the Defendants and was not a plan of the Plaintiffs. 137. Plaintiffs were following the instructions of Defendants' agents, John

Cramer and Judi French, when they recorded 4 regular hours of work rather than actual hours worked. 138. It was Defendants' overtime policy to deny overtime compensation for

routine work. Deposition of Cramer, p. 35, ll. 15-19. It was Defendants' policy to only pay for overtime worked in emergencies or on the manager' day off. Id, p. 33, s l. 15 - p. 34, l. 10. 139. Early in her employment, Schneider recorded more than 22 hours on

her time sheets for work she had performed outside regular office hours. Even when the extra hours were approved by her regional manager, they were crossed off by a payroll clerk of Landvest and not paid. Ex. A0001-0005, 0016, 0018, 0022, 0027. 140. Plaintiffs complied with instructions of Landvest to only record 4 hours per

day of work, for all work performed during regular working hours (10:00 a.m. Monday Friday and 9:00 a.m. to 5:00 p.m. on Saturday). Initially, they recorded time spent working after closing on paperwork or for a late customer. Payment for this time was denied. Exs. A0001-0023, A0001-0021. Time recorded and submitted by Plaintiffs for training a relief manager was denied. Ex. A0001-0029. Time spent working in place of a resident manager was paid. Id. Plaintiffs stopped recording overtime worked on their

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time sheets which they believed would not be paid by Landvest because they believed submitting the time would be futile. Findings of Fact on Work Performed 141. Plaintiffs proved through their own testimony and as a matter of just and

reasonable inference that they worked at least as many hours as are described below. Defendants offered no direct evidence of the amount of work performed by Plaintiffs and offered no precise evidence of the amount of work performed by Plaintiffs. 142. Schneider worked 4 week days per week from 10:00 a.m. until 6:00 p.m.

and Saturdays from 9:00 a.m. until 5:00 p.m. for 50 weeks.2 Plaintiff thus worked 40 hours a week but was only compensated 22 hours. Plaintiff Schneider is entitled to 18 additional hours of compensation at $9.44 an hour ($169.92) for 50 weeks of work, totaling $8,496.00. In addition, Schneider worked between 2 and 3 hours every week after 6:00 p.m. preparing end-of-day, end-of-week, and end-of-month reports. She devoted time after office hours to dealing with tenants who had been locked out of their units, potential tenants who were seeking to lease units, preparing late notices to be mailed to tenants, and performing other tasks for the employer. While the amount of work performed after 6:00 p.m. cannot be established with precision, allowing 2 ½ hours per week for preparation of end-of-day, end-of-week, and end-of-month reports is fair and consistent with the evidence. Allowing 1 hour per week for other work performed after 6:00 p.m. for other tasks as described above is fair and supported by

Plaintiff Schneider actually claims to have worked 52 weeks, but only seeks compensation for 50 weeks so as not to overstate her claim.

2

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the evidence. The total for overtime work that I find is supported by the evidence is 3 1/2 hours a week.3 Finally, for 18 weeks between November 2002 - March 2003, Schneider worked an additional 4 hours on every Sunday. 143. Wymer worked approximately 36 hours per week during scheduled

business hours, which were week days from 10:00 a.m. until 6:00 p.m. and Saturdays from 9:00 a.m. until 5:00 p.m. In addition,