Free Proposed Findings of Fact - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-D-2474 (PAC) _____________________________________________________________________________ CHARLOTTE SCHNEIDER AND DEAN WYMER, Plaintiffs, v. LANDVEST CORPORATION, a Kansas corporation, and DAVID MASON, individually, Defendants. _____________________________________________________________________________ DEFENDANTS' SECOND REVISED PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW _____________________________________________________________________________ FINDINGS OF FACT A. Parties 1. Landvest Corporation is a Kansas corporation which manages self storage space. The

50-plus facilities managed by Landvest 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 the Defendant corporation was doing business in

Colorado. [Doc. 67, Approving Final PTO; PTO: p 5, ¶7.] 3. Charlotte Schneider and Dean Wymer are naturalpersons who reside in El Paso County,

Colorado. [Doc. 67, Approving Final PTO; PTO: p. 5, ¶1,3.] 4. Schneider and Wymer were employed by the Defendant, Landvest Corporation, as

resident managers of a storage facility located at 10601 Iliff, Aurora, Colorado from April10, 2002 until April 4, 2003. [Doc. 67, Approving Final PTO; PTO: p. 5 ¶2, 4.]i)ii) 1

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B.

Plaintiffs' Agreed Job Responsibilities 5. At the time of their hire, on April10, 2002, Schneider and Wymer signed a joint

Managers Employment Agreement which set forth the terms of their employment, duties and compensation. [Record 30:6-11; Def. Ex. A0004.] 6. Soon thereafter, they signed a revised joint Managers Employment Agreement dated

July 23, 2002 (" Agreement" This contract was substantially similar to their April 2002 contract July ). setting forth the terms of their employment, duties and compensation. [Def. Ex. A0005; Record 73:2-6 (Schneider).] 7. Pursuant to the JulyAgreement, Schneider and Wymer agreed and understood that they

were to perform, collectively, the following duties, as set forth in the July Agreement: a. b. Direct leasing to new tenants [and meet and greet customers]. . . . Generally promoting the rental space, by responding to phone calls, marketing to outside businesses, distributing informational leaflets to area businesses and apartment complexes, campaigning perspective tenants by phone and encouraging tenants to help through word-of-mouth efforts. Helping tenants solve problems; taking care of complaints. Handling " local books," keeping track of the fact about tenants, who are i.e. planning to move in or move out, on what dates, who has which unit, which units are vacant, accepting rental payments when necessary, and reminding tenants to make their payments by phone or written correspondence. Maintaining the mini warehouse complex in good condition and good order, keeping the areas swept clean, taking care of the public facilities, such as the restroom, and cleaning any units vacated in an untidy condition; Following office instructions to lock out any tenants listed as delinquent in rental payments. Collecting payments in arrears from locked-out tenants, and reopening the units restored to a current status. Conducting a regular, but unscheduled surveillance at least six times each day of the entire complex, watching to see that unauthorized persons are not allowed to remain on the premises; keeping an eye on the tenants to see that 2

c. d.

e.

f.

g.

h.

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they do not interfere with each other'activities. s i. Providing security for the complex by ascertaining that the outside gates are locked and unlocked on schedule; or that the computerized security system is on and working properly. Making sure exterior lights and signs function correctly at night. Examining perimeter protection, such as fencing to see that it is functional; phoning the police or fire department in case of an emergency. Representing the Home Office/developer to the public; creating a favorable image of the entire operation to tenants and prospective tenants, thereby helping accomplish the overall objectives of the mini-storage project.

j.

[Schneider Depo. 195:24-196:10; Def. Ex. A0004-006; Record 727:4-728:1 (Beck).] 8. This job description set forth the job responsibilities of all of the resident managers in

the Denver Region. 9. The job description described generally the job responsibilities of a resident manager.

The actual job tasks performed by the resident managers fell under one or more of the responsibilities listed in the job description. 10. Not all of the job tasks that resident managers were required to perform had to be

completed on a daily basis. In fact, many of these duties could be spread out throughout the week and, in some cases, throughout the month or year. 11. In general, most resident managers were able to complete all job responsibilities in 22-

35 hours per week. [Record 518:1-8 (Mason testified that it should only take approximately 22 hours to complete the job responsibilities expected of a resident manager and, even though they are allowed to work up to 70 hours combined or 35 hours each, most of the Landvest managers get the job completed with the 44 hours we' open); Record 752:22-753:1 (Shaw); Record 782:10-24 (Warren re Fisher testified take maximum of 6-8 hours per day for one person or 3-4 hours per person where two people working to complete job responsibilities)1.]

1Warren Fisher testified that the first month or so after he started on June 11, 2003, he and his wife " played catch-up" on cleaning up the site and worked more than 20-30 hours per week per person. However, after the Fishers caught up with the site, neither manager recorded more than 35 hours each per week after August 11, 2003. See Def. Exs.

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12.

Several managers testified as to the job responsibilities required of a resident manager

and the average length of time it took them to complete these job responsibilities. These tasks, and their estimates can be summarized as follows: 13. On a daily basis, resident managers were required to perform the following tasks and,

on average, could be completed in the following times: (a.) Open the office (including turn on the computer and print tasks, play phone

messages, etc.) - 1.5 HOURS A WEEK (15 minutes a day): i. ii. iii. iv. v. Louise Adolphson: 15 minutes [Record 181:22-25.]; Neil Murray: no particular amount of time [Record 575:6-14]; Derald Beck: 2-3 minutes [Record 728:4-9.]; Judith Shaw: 15 minutes [Record 753:3-5.]; Warren Fisher: 15 minutes (20 minutes if include bank run) [Record

770:12-771:9.]; and vi. Paul Stevens: 5-10 minutes (estimated at the Iliff site) [Record 844:25-

845:3.]. (b.) Take daily deposit to the bank - 3.5 HOURS A WEEK (35 minutes a day): i. ii. iii. iv. v. vi. Dean Wymer: 30 to 35 minutes [Record 283:5-9] Neil Murray: 10-15 minutes if walking from Iliff [Record 575:15-24] Derald Beck: 6-7 minutes [Record 728:4-9.]; Judith Shaw: 15 minutes [Record 753:11-14.] Warren Fisher: 5 minutes for Iliff site [Record 770:12-771:9.] Paul Stevens: 15 minutes for Iliff site [Record 845:4-9.]

A0065-001 through A0065-046; Record 803:14-20.]

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(c.)

Sweep in front of the office: 2 HOURS A WEEK (20 minutes a day): i. Plaintiffs were the only ones who testified that they performed this task

in addition to opening the office or making surveillance checks. Wymer testified he would sweep this " small little entryway going into the property" that would " open up to three or four parking places" which would take him an hour to an hour and a half. [Record 282:19-24 (Wymer).] (d.) Answer incoming telephone calls: 3 HOURS A WEEK (30 minutes a day): i. Plaintiffs averaged total 2.83 calls/walk-ins per day over course of

employement [Record 863:4-17 (Millsap summarizing Illiff phone and customer log sheets, Def. Ex. A0042).] ii. iii. iv. Derald Beck: 2-4 minutes each call [Record 728:10-21.]; Judith Shaw: 1 hour a day [Record 753:6-10.] Warren Fisher: 5-10 minutes per call with average of 3-5 calls per day

[Record 778:24-779:15.]; iv. (e.) Paul Stevens: 2-15 calls per day [Record 846:7-10.]

Make outgoing telephone calls (collection calls): 3 HOURS A WEEK (30

minutes a day): i. Charlotte Schneider: Made 20-40 courtesy calls in one day until Mason

instructed her that she no longer needed to make these calls. She then made approximately 15 late fee calls every day. [Record 103:11-104:1 (Scheider).] ii. Derald Beck: average 8 calls a day at 2-3 minutes each call or 24

minutes a day [Record 728:22-729:8.]; iii. iv. Judith Shaw: average 30 minutes a day [Record 754:2-4.]; Warren Fisher: 20-30 minutes a day [Record 773:5-774:3.]; 5

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v. (f.)

Paul Stevens: 1-2 hours a week [Record 846:11-17.];

Lock checks/surveillance checks (usually performed in conjunction with picking

up trash, pulling weeds, sweeping, could perform while showing units to customers) 15 HOURS PER WEEK (assuming perform 6 per day at 25 minutes for each check): i. ii. Dean Wymer: 30 minutes to one and one half hours [Record 287:6-15] Neil Murray: 1 hour split between picking up trash, pulling weeds, etc. [Record 582:6-16] iii. Derald Beck: average 15 minutes on golf cart; 20-25 minutes on foot

[Record 733:24-734:25.]; iv. Judith Shaw: 15-20 minutes initial check; up to 1 hour if include

cleaning out units for move-outs [Record 753:15-754:1.]; v. Warren Fisher (at Iliff site): 15 minutes on golf cart; 35 minutes if walk

entire site [Record 771:15-772:2.]; and vi. Paul Stevens (at Iliff site): 20 minutes on golf cart; 40-45 minutes if

walk entire site but would only do 2-3 per week otherwise perform surveillance checks in car when came and left propery [Record 845:10-20; 852:14-853:8.]. (g.) End of day reports: 3 HOURS PER WEEK (30 minutes a day): i. ii. iii. iv. v. (h.) Charlotte Schneider: at least 30 minutes a day [Record 37:15-25]; Derald Beck: average 10 minutes a day [Record 735:1-6.]; Judith Shaw: average 10 minutes a day [Record 755:24-756:4.]; Warren Fisher: 15 minutes a day [Record 781:7-12.]; Paul Stevens: 20-30 minutes a day [Record 846:18-847:1.].

Assist customer walk-ins - 4.5 HOURS PER WEEK (45 minutes a day); i. Neil Murray: maximum of 30 to 45 minutes per day [Record 582:176

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583:4]; ii. iii. Derald Beck: average 2-10 minutes per person [Record 735:19-13.]; Judith Shaw: average 10-15 minutes per person with 2-3 people visiting

the site on a busy day (45 minutes a day maximum) [Record 754:5-9; 758:1-6.]; iv. Warren Fisher: average 5 walk-ins a week where spend maximum of 20

minutes per person if go out and show a unit (1.66 hours a week) [Record 779:16-780:14.]; and v. Paul Stevens: 10 minutes maximum if showed customer a unit [Record

847:21-848:4.]. (i.) Assist existing tenants - RARE - 10 MINUTES A WEEK: i. Neil Murray: " there is rarely any contact. Folks have their code to get

in the gate. They certainly know where their unit is. They have their own personal lock on that unit, and they have access 24 hours a day. There'rarely s any, any reason for them to stop in the office, unless they have a question or something of that nature." [Record 582:6-20 (Murray).] 14. On a weekly basis, resident managers were required to perform the following tasks and,

on average, could be completed in the following times: (a.) Weekly reports - 20-30 MINUTES A WEEK:2 i. Charlotte Schneider: one to one and one half hours [Record 38:23-24]

Plaintiffs desperately tried to rely upon the fax headers shown on the weekly occupancy reports to argue that those time-stamps proved that Plaintiffs were working at the site at the time that they were faxed. However, resident managers were trained to start preparing the reports enough time before closing so that if there were any problems, the service companies would be available to help them on the computer end of it. [Murray Depo. 31:20-25.] Further, notwithstanding the unreliability of the time stamp on the fax machine, the fax could be delayed for hours on a busy week-end where all faxes for all sites are trying to go through at the same time and it may not go through until later. Normally, these reports are faxed during business hours but there may be occasions where they are set aside to finish up other things and then fax it out. [Murray Depo. 32:8-33:2.] In any event, sending a fax requires minimal time and effort, requiring just a few seconds to place the fax on the machine and key in the numbers. [Record 746:4-748:12 (Beck).]

2

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ii. iii. iv. v. 15.

Derald Beck: maximum 30 minutes [Record 735:7-13.]; Judith Shaw: 10 minutes [Record 756:7-8.]; Warren Fisher: 20 minutes [Record 781:13-15.]; and Paul Stevens: 10-15 minutes [Record 847:2-9.].

On a monthly basis, resident managers were required to perform the following tasks

and, on average, could be completed in the following times: (a.) Clean out units from move-outs - maximum of 2.5 HOURS WEEK (average

30 move-outs per month at 30 minutes for each unit): i. Plaintiffs averaged 29.5 move-outs per month during employment.

[Record 864:15-865:24 (Millsap summarizing Illiff monthly rental activity reports during Plaintiffs' employment, Def. Ex. A0042.] ii. iii. iv. v. Neil Murray: 5 minutes or less per unit [Record 576:22-577:4] Derald Beck: 3-5 minutes per unit [Record 730:22-10.]; Judith Shaw: 15-20 minutes per unit [Record 754:24-25.]; Warren Fisher: 5-15 minutes per unit (depending on the size) [Record

775:10-23.]; and vi. (b.) Paul Stevens: 5 minutes per unit (Iliff) [Record 848:5-9.].

Perform all tasks associated with a lock-cut (after sent letters and phone calls,

cut the lock on the unit with the Regional Manager; take a photograph of the contents; take a visual inventory of the property inside without entering the unit; close the door; overlock the lock; completing lock-cut paperwork) - 1.15 HOURS A WEEK (5 hours a month): i. Charlotte Schneider/Wymer: Averaged 5 lock cuts per month but could

not estimate how much time averaged per month to complete this procedure 8

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[Record 106:14-107:17 (Schneider). See generally, Def. Ex. A0046-0001 through Def. Ex. A0046-0082.]; ii. iii. Neil Murray: 5 minutes per unit [Record 573:20-574:4]; Derald Beck: 7-8 minutes per unit (not including going to the post

office) [Record 731:23-733:4.] ; iv. Judith Shaw: 1 hour a month per lock cut with 3-4 lock cuts a month

[Record 757:4-25; 758:19-759:19.]; and v. Warren Fisher: 7-10 minutes per lock-cut with five lock-cuts in the

worst month [Record 777:15-778:23.]. (c.) Monthly paperwork: 6.92 MINUTES A WEEK (30 minutes a month) i. Charlotte Schneider/Wymer: Described as the " manuscript becuase it

was so thick of all the things that needed to be submitted."Did not estimate a time. [Record 111:3-11 (Schneider).] ii. iii. iv. (d.) Derald Beck: average 30 minutes [Record 735:14-18.]; Judith Shaw: 25 minutes [Record 756:9-20.]; Warren Fisher: 45 minutes [Record 781:16-19.]

Thorough cleaning of the office - 2 HOURS A WEEK i. Charlotte Schneider: 2 hours a week or 8.67 hours a month. [Record

120:3-10.] ii. Judith Shaw: 20-30 minutes a week (4.33 hours a month) [Record

756:21-25.] iii. Paul Stevens: 30 minutes to 1 hour a week (4.33 hours a month)

[Record 847:14-20.]

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16.

On an annual basis, resident managers were required to perform the following tasks

and, on average, could be completed in the following times: (a.) Paint all bollards on site - 41 MINUTES A WEEK (3 hours a month): i. ii. Dean Wymer: 20 minutes to 3 hours once a month [Record 288:2-15] Neil Murray: one hour per shift over 4 to five days once a year [Record

575:25-576:10] iii. Derald Beck: 3 minutes paint entire bollard and 1-2 minutes for touch

up [Record 729:9-730:5.]; iv. Judith Shaw: 5 minutes for touch up; 2 hours to paint all bollards

[Record 755:15-23.]; v. Warren Fisher: 7 minutes to paint entire bollard with 32 total bollards;

paint all bollards once a year; touch ups take 2 minutes each and do a total of 6-7 a year [Record 772:3-17; 774:4-20.]; and vi. Louise Adolphson: Touch up every 3 months approximately 20-30

bollards [Record 187:19-9.]. (b.) Snow removal (shovel light snow in front of the office and in front of storage

unit doors when requested by tenant) - 3.46 MINUTES A WEEK (1.5 hours a year): i. Dean Wymer: Worked 12 hours for 3 days following the 2002 " storm

of the century." [Record 274:5-16 (Wymer).] ii. iii. iv. (c.) Neil Murray: done by TruGreen during 2003 storm [577:8-578:7] Derald Beck: 3 times a year for 5 minutes each [Record 730:6-20.]; and Paul Stevens: 30 minutes a storm [Record 849:5-16.].

Change light bulbs (many were lithium bulbs so not necessarily need to be

changed every year) .38 MINUTES A WEEK - (20 minutes a year): 10

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i. ii. iii.

Plaintiffs: Did not testify as to this task. Neil Murray: 5 minutes [Record 574:5-575:7] Derald Beck: 2 minutes per bulb in the unit; outside lithium bulbs only

replaced 2 in 6 years [Record 733:5-23.]; iv. Warren Fisher: 5 minutes per bulb on outside lithium bulbs; only

changed 12 in 3 years; 1 minute per bulb on bulbs inside the unit [Record 774:21-9.]; and v. Paul Stevens: 15 minutes per bulb on outside lithium bulbs and have 2

a year; 2 minutes per bulb on bulbs inside the unit [Record 848:10-849:4.]. 17. On rare occasions, resident managers might have to perform the following tasks and,

on average, could be completed in the following times: (a.) Deal with contractors i. Derald Beck: never had to deal with contractors; responsibility of the

area manager [Record 737:14-22.] 18. Other tasks Plaintiffs testified to performing which took little to no time included: (a.) Tenants visiting unit - automatic gate and did not have to help tenant unless

there was a problem with the gate or if they had trouble getting into their unit [Record 738:18-24.] 19. Those managers who testified included: (a.) Neil Murray - Worked at the Austin Bluffs site in Colorado Springs, Colorado

from January of 2001-May of 2005. [See generally, record 565:6-612:17. (b.) Derald Beck - Worked at the Fillmore site in Colorado Springs from July 28,

1998 through September 20, 2004. Fillmore site had 294 units. [See generally, Record 724:13-748:14.]; 11

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(c.)

Judith Shaw - Currently works at the Nevada site in Colorado Springs. Nevada

site has 384 units. [See generally, Record 748:21-766:5.]; (d.) Warren Fisher - Has worked at the Holly Holly site in Denver Colorado since

June of 2003. Holly site has 352 units. [See generally, Record 766:13-806:17.]; and (e.) Paul Stevens - Has worked at the Lakewood site in Denver Colorado since

March of 1996. Also worked as relief manager at the Iliff site. Lakewood site has 397 units. [See generally, Record 844:1-854:12.]. 20. Itemizing all possible job tasks, and using the high average in estimating the amount of

time spent on each task given by the resident managers, a weekly breakdown of the total time required by resident managers to operate a site is as follows: (a.) (b.) (c.) (d.) (e.) Daily tasks: Weekly tasks: Monthly tasks: Annual/seasonal tasks: Rarely 35.6 hours a week .5 hours a week 3.27 hours a week 4.14 hours a week .10 hours a week 43.61 COMBINED HOURS A WEEK (21.8 hours each per week) 21. An effecient manager was able to " multi-task" perform several of these task at one and

TOTAL

time. For example, if a resident manager was running an end-of-the-day report, the manager would get the system up and running to print out and then could file documents or fill out deposit slips. [Record 620:4-13 (Murray).] 22. With the exception of performing surveillance checks, it took the same amount of time

to perform these tasks at the various sites, regardless of the size of the facility. [See, Record 749:35750:15 (Judith Shaw worked at Nevada, Fillmore and Pikes Peak sites which were all 384 units or less 12

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and she testified that there was no difference in amount of time spent performing job); Record 780:15781:6 and 798:18-799:6 (Warren Fisher worked at other locations, including the Iliff site and in fact his site required more work than the Iliff site becuase had climate control buildings).] 23. Plaintiffs were the only ones who testified that it took them 2 and 1/2 hours to clean the

office on a weekly basis [See generally, Judith Shaw testimony, Record 758:9-12.] 24. Plaintiffs also performed work that was not required by Landvest but were generally

done by outside contractors, such as painting the stripes on the parking lot. Landvest could not, therefore, have had knowledge that Plaintiffs were performing such work as painting the stripes on the parking lot. [Record 804:22-805:3 (Fisher).] 25. Further, Plaintiffs' estimation of the number and amount of time spent on collection calls

was counterintuitive to the 20 percent delinquency rate at the Iliff facility the last few months before they left. Plaintiff Schneider testified that she was making upwards of 40 " courtesy calls" day until per Mr. Mason instructed her she did not need to complete these calls, and after that made approximately 15 calls per day. [Record 103:11-104:9.] 26. In fact, during the entire year they were employed by Landvest, Plaintiffs never got their

delinquency percentage less than 5% which would have qualified them for a delinquency bonus. To the contrary, their high delinquency rate suggested that they were not making their collection calls. [Record 872:3-873:1 (Millsap testifying as to Plaintiffs' delinquency rate during relevant period.] 27. Customer walk-ins and phone inquiries were recorded on a daily log sheet by Plaintiffs.

Plaintiffs received, on average, as few as two and as many as six walk-in and phone inquiries total per day. [See generally, Def. Ex. A0042-0001 through Def. Ex. A0042-130.] 28. As part of their job responsibilities, Schneider and Wymer were trained and agreed that

they were to " devote their entire time, attention and energies to the business of the Employer" not by engaging in any other full-time business activity. [Cramer Depo. 44:8-17; Def. Ex. A0004-002.] 13

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29.

Plaintiffs were free, however, to engage in part-time work or outside of their

employment with Landvest. Plaintiffs were aware of this because they knew other resident managers in the Denver area, such as the Fishers, Caires, and Ricards who held part-time employment outside of Landvest. [Record 541:11-542:12; Def. Ex. A0037-0001.] 30. Landvest further clarified this provision in a memorandum dated May 28, 2002,

whereby David Mason stated that the new employment agreement was revised to clarify several ambiguous areas and that under this new agreement " employees [would] not be allowed to run a separate business out of their home where customers can visit the premises." [Def. Ex. A0006-001.] 31. 32. Landvest did not require them to be on-site at all times. [Cramer Depo. 44:8-17.] In fact, Landvest only required that the site has to be open and available for business -

not necessarily that one manager had to be in the office at all times. [Record 598:14-25 (Murray); Record 800:21-24 (Fisher).] 33. Landvest expected them to also perform the regular responsibilities of showing storage

space, picking up the grounds, maintaining the storage units, and conducting unscheduled surveillance of the property which required them to work outside of the office. [Def. Ex. A004-006 (Exhibit A to Contract " Managers Job Description" ).] 34. Schneider and Wymer were trained and understood that when there were no customers

in the office; they could perform their duties outside of the office or could easily walk into the apartment and engage in activities not associated with work. Their only responsibility in manning the office was to make sure that they answered the phone within a reasonable number of rings, greeted any and all people who came through the front door, and completed the required daily paperwork for the site. [Cramer Depo. 38:16:13.] 35. Cramer specifically trained Schneider that she was not required to be in the office during

the hours that the business was open, she could either be in her apartment or in her office and she was 14

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allowed to keep the door open between the two during working hours. [Cramer Depo. 39:20-40:8.] 36. Many resident managers, including Plaintiffs, had a bell in the office that customers

could ring to alert the manager if he or she was in the apartment. [Record 736:21-737:3 (Beck); 754:14-23 (Shaw); 37. In addition, the home office distributed a sign to resident managers that they could post

on the door if they were on-site but doing other things, indicating that the manager is unavailable but will return. [Record 736:14-20 (Beck).] 38. Resident managers, including Plaintiffs, also had cordless telephones so that they could

answer incoming calls while they are away from the office. [Murray 38:16-19.] D. 39. Plaintiff'Agreed Compensation s Pursuant to the Managers Agreement, Schneider and Wymer agreed that, in exchange

for performing their duties under the agreement, they would receive a combined annual salary of $21,600, or $10,800 each3 [Def. Ex. A0005.] 40. Landvest paid Schneider and Wymer on a bi-weekly basis. As provided and agreed to

in their Agreement, each were paid a fixed bi-weekly salary of $415.39 as straight time pay for a regular workweek of 35 hours. The Agreement set forth that in exchange for this salary, Schneider and Wymer shall collectively " work approximately 44 hours per week but may be called upon to work additional hours as needed," that " but [e]mployees shall not work more than a combined total of 70 hours per week." [Def. Ex. A0005-002.] 41. Other managers signed a similar agreement and understood that they were being paid

a salary wage for a minimum of 22 hours and a maximum of 35 hours of work per week per manager. [Record 760:23-25 (Shaw testified she understood this because it was explained to her and it was stated as such in the contract).]
3

This does not include compensation for bonuses.

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42.

Except in cases of emergencies, however, Schneider and Wymer understood and agreed

that they were not to perform work outside of their scheduled hours in the contract. If there was work that could not be performed, they agreed and understood that they were to inform Landvest of this work. [Def. Ex. A0005-002 (employment contract).] 43. " Emergencies" were classified by the contract as " situation [occurring] outside of a

operation hours when it is impossible to reach management personnel and time must be spent to handle the emergency." [Def. Ex. A0005-002 (employment contract); Record 678:22-679:4 (Etter explained that managers were generally compensated for these emergencies even if they did not work more than 35 hours in a workweek).] 44. In the event either Plaintiff, individually, worked over 40 hours in a workweek, the

regular rate for purposes of calculating overtime was based on the 35-hour workweek set forth in the agreement. [Record 653:1-654:19 (Etter).] 45. For example, where Schneider worked 45 hours in a workweek, she would be entitled

to her regular salary wage ($207.69), plus $5.94 per hour for five hours ($29.70), plus $8.90 an hour for the remaining five hours ($44.50), for a total of $281.89 for that workweek. [Record 653:1-654:19; 662:11-663:23 (Etter).] 46. At all times during their employment, Landvest compensated Plaintiffs pursuant to this

agreed pay plan. Often times, Plaintiffs were compensated in excess of their agreed salary amount for approved work performed in which they received a flat premium rate for those hours. [See generally, Record 679:10-680:23.] E. 47. Adequate Time Records Schneider and Wymer also agreed and understood that it was their responsibility to

maintain accurate time records of work performed. Their contract clearly spelled out that " Employees shall keep accurate records of work performed."[Def. Ex. A0005-0002.] 16

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48.

On every timesheet completed by Plaintiffs from their first week of employment to their

last week of employment, Plaintiffs signed their timesheet certifying " the above is a correct record that of my time worked for the period indicated."[See generally Def. Exs. A0001-0003 through A000010081; and A0002-0004 through A0002-0080.] 49. As part of the training process, Cramer reviewed the Landvest employment agreement

with Plaintiffs, which specifically covered such areas as " compensation, hours, days of work, overtime, payroll records and job description as well as other work related items." [Def. Ex. A0029-001, ¶ 1 (written statement by Cramer).] 50. John Cramer trained Schneider and Wymer, along with other resident managers,

including Paul and Sarah Stevens and Louise Adolphson, in how to fill out their time sheets. [Cramer Depo. p. 20:11-22:7.] 51. Cramer had also trained resident manager Judi French, who assisted in training Plaintiff

Schneider and Louis Adolphson. [Cramer Depo. p. 21:5-14.] 52. Cramer trained managers consistent with the training that he received, which was to fill

out the actual hours worked by the resident manager on the time sheet. [Cramer Depo. 20:4-21:2.] 53. Cramer'testimony that he trained managers to record actual hours was supported by s

at least two other resident managers who worked under Cramer'supervision during the same time s frame. [Record 726:6-727:3 (Beck testified that under the supervision of John Cramer, he was advised to write down all hours worked); Record 849:17-850:9 (Stevens testified that Cramer and Murray instructed him to write down the actual hours worked but told to try to balance out the number of hours worked with other team manager).] 54. It also is clear from Cramer'written correspondence and his deposition read at trial s

that he trained resident managers to record actual hours; he told resident managers to only record four

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hours per week, but if they worked more hours that they were to record those additional hours. [See generally, Def. Exs. A0026; A0028; A0029; Cramer Depo.] 55. Cramer'first explanation of this was made to the Colorado Department of Labor on s

May 21, 2003, following Plaintiffs' complaint that they worked additional hours for which they were not properly paid for. Cramer stated that " employees in this region were told that they should all record no more than 22 [hours] per person per [week] on the payroll records and that anything beyond that must be approved by the Regional Manager. Overtime was approved by me when it was needed, and it is my understanding that overtime was paid to employees." [Def. Ex. A0029-001, ¶ 1.] 56. Cramer continues in the same letter regarding his instructions on recording actualhours,

and states that " manager was ever told by me that they could not record overtime hours." [Def. No Ex. A0029-001, ¶ 2.] 57. In an effort to clarify any ambiguities contained in this first letter, a second letter was

drafted by attorneys for Landvest based on David Mason'conversation with Cramer; he reviewed and s signed it on June 5, 2003. [Record 874:11-875:9; 880:16-881:9.] 58. Cramer reviewed this statement before signing it and Cramer felt that it accurately

represented the events. [Cramer Depo. 60:8-61:24.] 59. The letter clarified Cramer'previous statement that he " trying to say he cautioned s was

emplyees that they shouldn'have to work more than 22 hours each (which is entirely consistent with t the 44-hour requirement for teams) but that more time could be worked when necessary with approval." [Def. Ex. A0026-002, ¶ 2.] 60. In fact, the letter pointed out that after Landvest discussed his May 21 statement with

Cramer, he " [Landvest] that he never told the claimants to record only 22 hours per week told regardless of the numbers of hours they actually worked. [Def. Ex. A0026-002, ¶ 2.]

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61.

Cramer also confirmed that his first statement simply was meant to convey the notion

that, under normal circumstances, employees should not need to work more than 22 hours per week." [Def. Ex. A0026-002, ¶ 2.] 62. These two letters incited Plaintiffs to contact Cramer directly about his statements, and,

according to Cramer, Schneider called and accused him of accepting a bribe for " changing" first his statement. Cramer responded to Schneider that he " received nothing" that he " not change [his] and did statement." [Def. Ex. A0028-003.] 63. A0028.] 64. In it, Cramer explained that when he was contacted by Landvest after he wrote his first Cramer then sent a letter directly to the Department dated July 2, 2003. [Def. Ex.

statement (dated May 21), he refused to change it. He further explained that he later met with Marshall Millsap with Landvest on June 5, 2003 and read over a letter that was prepared by Landvest and felt that " contained the same things [he] had said in [his] first statement" he signed it. [Def. Ex. it and A0028-003, ¶ 2.] 65. Although Cramer indicated that he felt four hours per manager per day was not " always

enough time to do the job as expected," never states that managers were only to write down four he hours regardless of the actual hours worked. [Def. Ex. A0028.] 66. In fact, Cramer reiterated that he instructed Plaintiffs to record four hours on their

timesheets and " were free to record on there [sic] timesheets what ever time they believed they they had work [sic] during the pay period." [Def. Ex. A0028-002, ¶ 1.] 67. This resulted in a fierce response from Plaintiffs, dated July 6, 2003, alleging that " Mr.

Mason continued to pressure Mr. Cramer to change his first statement - sometimes calling him two to three times in one day"and that they " ; understood that the pressure appliedby Landvest, coupled with

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[Cramer' personal and financial problems," believed " Cramer was not thinking clearly at the s] and that time he signed [the] interpreted version of his first statement." [Def. Ex. A0031-003, ¶ 2.] 68. Plaintiffs make no reference to Cramer' third statement indicating that neither s

statements were inconsistent. [Def. Ex. A0031.] 69. Finally, on April 6, 2004, Cramer testified under oath at his deposition regarding his

instructions to Plaintiffs on recording their hours and his knowledge of the number of hours that they worked. [See generally, Cramer Depo. taken April 6, 2004.] 70. Again, his testimony is consistent with his previous statements. At that deposition, he

again stated that he trained managers " record four hours a day on the time sheets." to [Cramer Depo. p. 21:15-22:1-8.] 71. He did not, however, ever testify that he instructed resident managers to only record

four hours a day regardless of the actual hours worked. Although Plaintiffs' counsel refused to allow Cramer to clarify his testimony on several occasions regarding this issue, Cramer'testimony is clear. s Cramer instructed Plaintiffs to write down four hours but if they worked more than four hours, they were to write down those hours; if they did not record those additional hours they did so at their discretion and contrary to his instructions. Cramer testified: Cramer Depo. 21:24-22:8 Dell' Olio: Did you train resident managers to record four hours a day on the time sheets. Rupe: Object to the form. Cramer: That'basically what was put out by the company, yes. I' like to s d expand on that answer. Dell' Olio: You' have a chance to. ll Rupe: Let him expand on the answer. Dell' Olio: No, this is my deposition. We will get back to that. If you are not satisfied that I did, you know you can ask the question. ...

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Cramer Depo. p. 31:24-32:21 Dell' Olio: So what you are saying is, when they read the contract, they didn' t object. But later on, there were managers who objected to working more than four hours but being required by the company to only record four hours? Cramer: Yes. Dell' Olio: Okay. Cramer: Now, I' going to give you the rest of the story. m Dell' Olio: Uh-huh. Cramer: Whether you want me to or not, you' going to listen. re Dell' Olio: Uh-huh. Cramer: If they told me, we had to work extra hours because of something that had to be done, that had to be handled, I always informed the managers, put it on your time sheets, the company will pay you. And to my understanding and my belief, the company paid those people for any and all overtime that they recorded on their time sheets and turned in. If they didn'record it, that was t their decision not to do that, it wasn'mine. And I don'believe it would have t t been anybody'in the company. s Cramer Depo. p. 45:18-47:3 Dell' Olio: And at that time you understood that she (Schneider) was recording on her time sheet fewer hours than the hours she said she was actually working? Rupe: Objection. Mischaracterization. Cramer: I can'answer that. You are trying to put words in my mouth, and you t are not going to do it. Dell' Olio: Okay. Cramer: I can explain to you what took place there, if you like. ... Dell' Olio: I think that'a yes or a no. s Cramer: No, it'not. s Dell' Olio: Are you refusing to answer that question? Cramer: In that fashion, you bet. Dell' Olio: I want the question flagged, if you would. Rupe: Can you explain? Cramer: I' be glad to give you an explanation if you like. ll Dell' Olio: I didn'object to an explanation; it'a yes or no answer and you t s haven'provided an answer. Do you want it read back again? t Cramer: Yes, please. Dell' Olio: Le'hear it again and see if you can give a yes or no answer. Would t you read it again please. (The record was read as requested) Cramer: Yes. Dell' Olio: Thank you. Cramer: Now, would you like the rest of the story?

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Dell' Olio: No, I don' You are going to wait, and you are going to answer the t. questions that I as you or-Cramer Depo. p. 53:15-54:3 Dell' Olio: When you reported to [David Mason] that the " Claires"had complained about not being paid for all hours worked, what was his response? Cramer: I think that his response, and I' got to give you the answer as how ve I recall, okeay? But I think his response was probably exactly the same response that I had to them. If you feel like you' got overtime hours, put it ve on your timesheets. If that'truly what you feel like, put it on your timesheets. s And this young lady [Schneider] knows it for a fact that that'what was told s to her, as well. Rupe: You are indicating Ms. -Cramer: Ms. Schneider. Cramer Depo. p. 58:23-59:19 Dell' Olio: Did you ever question why there was a practice of having employees record four hours a day? Rupe: Same objection. Dell' Olio: Did you ever question? Cramer: I think I asked about it, yes. Dell' Olio: Who did you ask? Cramer: Probably David. Dell' Olio: And what did he say? Cramer: And I' sure, I' sure that I asked Jim Kelly as well. m m Dell' Olio: and what did Mr. Mason say? Cramer: To the best of my recollection, he indicated that it was­ it had been that their policy for a long time that the couple managing the unit would record and be responsible for working four hours per day, each. But there were times that they might have to work more than that. And that if anything come up like that, that they were free to put it on their time sheets. Dell' Olio: What about Jim Kelly, what did he say to you? Cramer: Probably the same thing. Cramer Depo. p. 65:3-7 Dell' Olio: Did you ever tell any manager they should work no more than four hours? Cramer: Yeah. Dell' Olio: Who did you say that to? Cramer: I told that to probably all of them. Cramer Depo. p. 72:25-73:7

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Rupe: Now let'go to that, those occassions in which Charlotte complained to s you that she wasn'able to get the work done within the four hours allotted: It t sounds like to me, tell me if I' wrong, it sounds like on those occasions you m told her to report the additional hours. Cramer: I most certainly did, and she is very much aware of that. Cramer Depo. p. 75:7-13 Rupe: The letter, Exhibit 28 [Def. Ex. A0026, June 5, 2003 letter] now that you have had an opportunity to review it, even if you can'recall if you reviewed t it at the time you sat with Marshall, have you pointed out any inaccuracies or anything you disagree with in that letter? Cramer: It is a valid description of what the company policies are. 72. Cramer also states in his first letter to the Department of Labor, dated May 21, 2003,

that "had several managers complain that they were not being allowed by Landvest to record the full I amount of hours they worked." [Def. Ex. A0029-001, ¶ 3.] 73. It is clear, however, from Cramer'subsequent statements that this was not because s

they were being instructed to only record four hours, it was because of their misinterpretation of the portion of the contract which spoke to " Extent of Services."This particular provision provided: " employees shall devote their entire time, attention and energies to the business of The the Employer, and shall not during the term of this Agreement be engaged in any other full time business activity whether or not such business activity is pursued for gain, profit, or other pecuiary advantage; but this shall not be construed as preventing the Employees from investing their assets in such form or manner as will not require any services on the part of the Employees in the operation of the affairs of the companies in which such investments are made." [Def. Ex. A0004-002, ¶ 8.] 74. Cramer explains that the manger complaints " based on the fact that Landvest work was

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 on every day worked but they were only being allowed by Landvest to record 4 [hours]each on every day worked." [Def. Ex. A0029-001, ¶ 3.]

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75.

Cramer again points out, however, that any confusion on the part of the managers was

not created by him because he " explained to the Managers that they could spend time in their apartments as long as one manager was available to answer the business phone and greet customers that came into the office." 76. Further, Cramer also agreed that Landvest does " require off-duty managers to not

remain on the premises during business hours," although " some managers grossly interpreted the language and may have believed they were not free to pursue part-time business interests or opportunities even when off-duty."[Def. Ex. A0026-002, ¶ 4.] 77. This is consistent with Cramer'memo to David Mason, dated April 16, 20024, in which s

Cramer informs Mason that he spoke with two resident managers regarding their second job and Bill agreed to " either quit his outside work or reduce it to a point that he puts 4 [hours] each day working on the site during regular office business hours."Consistent with Cramer'testimony, the resident s manager was not being asked to quit his job to perform 8 hours a day; rather he was being asked to perform the minimum agreed to under the contract - 4 hours. [Def. Ex. A0037-0001.] 78. This is also consistent with other resident manager' understanding based on their s

training that they received from John Cramer and their interpretation of the contract. [Record 585:2325 (Murray); Record 769:16-770:2 (Fisher testified that he worked a part-time job when he first started with Landvest and he knows other resident managers who currently hold part-time jobs with Landvest). See also, Record 541:11-542:12 (Mason testifies as to a number of managers that worked part-time while working for Landvest and history behind provision in contract on " Extent of Services." ).]

Cramer'memo was authored on April 16, 2002 - almost three weeks before Plaintiffs s even brought their wage and hour complaint with the Department of Labor. [Def. Ex. A0021; A0037.] 24

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79.

Finally, Plaintiffs were instructed by David Mason in December of 2002 that Landvest

" must report the hours worked by each Manager." [Record 217:1-23 (Schneider).] 80. Plaintiffs did in fact keep daily time records and submitted these to Defendant Landvest

bi-weekly. [See generally, Trial Exhibits Def. Ex. A0001 and Def. Ex. A0002.] 81. At all times, Plaintiffs were compensated for all hours worked. [See generally, Trial

Exhibits Def. Ex. A0001 and Def. Ex. A0002.] 82. During each week of employment, Plaintiffs received their regular salary pay, and, in

most instances where they recorded hours outside of their normal scheduled office hours for training, late lease or an emergency, they received additional compensation for this straight time at a premium rate. [See generally, Trial Exhibits Def. Ex. A0001 and Def. Ex. A0002.] 83. There were occasions in which Schneider and Wymer worked only their scheduled

office hours for a total of 22 hours per week (or 44 hours bi-weekly). [Def. Ex. A0001 and Def. Ex. A0002.] 84. There were also occasions in which Schneider and Wymer worked and recorded hours

in addition to their scheduled office hours up to 35 hours per week. [Def. Ex. A0001 and Def. Ex. A0002.]5 85. In both instances in which Plaintiffs worked and submitted time records for up to 35

hours per week each (or 70 hours total), they were compensated their regular salary wage of $415.39. [Def. Ex. A0001 and Def. Ex. A0002.] 86. Plaintiffs' workweek was Monday through Sunday. They each had one scheduled day

off during the week. If they were required to work Sundays, the office was only open for 4 hours. They generally each recorded 2 hours on Sundays. [Def. Ex. A0001 and Def. Ex. A0002.]

5

See Def. Ex. A0001-0019; Def. Ex. A0001-0022; Def. Ex. A0002-0020; Def. Ex. A0002-0023

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87.

As a reward for doing a good job of leasing units, resident managers were not required

to work Sundays if they achieved a high occupancy at the site. Regardless of whether a manager worked on Sundays, he or she still received the fixed salary wage. [Record 585:12-22 (Murray).] 88. Plaintiffs, however, routinely worked on Sundays because their site was not performing

as well as it should have been and from approximately November 10, 2002 through their resignation, their site was open on Sundays. [Record 95:5-13 (Schneider).] 89. As an incentive and a reward for working beyond their normal scheduled hours,

Landvest compensated its resident managers, in addition to their salary wage, an hourly premium rate wage for approved straight-time work performed. Such work included attending training or working on a scheduled day off or where they had to work additional hours due to an " emergency" [Record .6 662:11-663:10 (Etter described Landvest'fixed workweek pay plan).] s 90. The premium pay was a flat rate of $14.16 per hour for approved hours. This rate was

pre-determined as a set amount for all resident managers employed at Landvest during that period regardless of their salary rate. This figure was picked so that it would be high enough to cover the minimum regular and/or overtime rate for all employees, regardless of their salary, as well as any other type of compensation such as the residence. [Record 647:14-650:4 (Etter testified regarding the basis for the $14.16 per hour used for the premium rate).] 91. " Premium pay" reflected on Plaintiffs' stubs in the " was pay overtime" column as there

was no other place to indicate this additional payment on their paycheck. [Record 706:18-707:2. (Etter).]

" Premium pay" was termed " overtime pay" Plaintiffs' on timesheets and pay stubs although it was not necessarily an overtime rate as calculated under the FLSA.
6

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92.

Plaintiffs were employed by Landvest for a total of 52 calendar weeks. Plaintiffs did

not work an entire workweek (Sunday through Monday), the first or last weeks of their employment. [Record .] 93. Out of the 50 calendar weeks where Schneider and Wymer worked the entire

workweek, Schneider recorded work performed outside of the 22 scheduled office hours in 22 of those weeks. [Def. Ex. A0001.]7 94. In all but seven of those 22 weeks, Schneider received a flat premium pay rate of $14.16

an hour for each hour worked over 22 hours a week for working her day off, training or other special " emergency" situations. [Def. Ex. A0001.] 95. During those remaining seven weeks, Schneider was not paid a premium rate for a total

of 26.5 hours as those hours were not considered hours eligible for the premium pay. [Def. Ex. A0001.] 96. Regardless, Schneider was paid her salary wage for each workweek that she worked

up to 35 hours. There were only two weeks where Schneider recorded more than 35 hours in one workweek. During those weeks, Schneider'premium pay sufficiently compensated Schneider for her s regular and overtime rate for those hours worked that were not covered under her salary wage. [Def. Ex. A0001.]8

7

See Def. Ex. A0001-0006; Def. Ex. A0001-0009; Def. Ex. A0001-0012; Def. Ex. A0001-0017; Def. Ex. A0001-0020; Def. Ex. A0001-0023; Def. Ex. A0001-0029; Def. Ex. A0001-0032; Def. Ex. A0001-0035; Def. Ex. A0001-0038; Def. Ex. A0001-0044; Def. Ex. A0001-0053; Def. Ex. A0001-0056; Def. Ex. A0001-0062; Def. Ex. A0001-0066; Def. Ex. A0001-0069; Def. Ex. A0001-0078; Def. Ex. A0002-0007; Def. Ex. A0002-0010; Def. Ex. A0002-0021; Def. Ex. A0002-0024; Def. Ex. A0002-0033; Def. Ex. A0002-0036; Def. Ex. A0002-0045; Def. Ex. A0002-0056; Def. Ex. A0002-0062; Def. Ex. A0002-0054; and Def. Ex. A0002-0077. 8 See Def. Ex. A0001-0004 through Def. Ex. A0001-0006; Def. Ex. A0001-0021 through Def. Ex. A0001-0023.

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97.

The first week ended May 5, 2002, and Schneider recorded 20 hours in addition to her

regularly scheduled 22 hours. She was paid a premium rate of $14.16 an hour for these 20 hours worked and recorded. [Def. Ex. A0001.] 9 98. The second week ended July 7, 2002, and Schneider recorded a total of 13.5 hours in

addition to her regularly scheduled 22 hours. She was paid a premium rate of $14.16 an hour for 9.5 hours where she was engaged in training. Although Schneider did not receive a premium rate for 4 of the additional recorded hours, these hours were considered part of her regular duties " to the 35 up hours" which she received her regular salary compensation for. [Def. Ex. A0001.]10 99. Similarly, out of the 50 calendar weeks where Wymer worked the entire workweek,

Wymer recorded work performed outside of the 22 scheduled office hours in 12 of those weeks. [Def. Ex. A0002.] 100. In all but one of those 12 weeks, Wymer received a flat premium pay rate of $14.16 an

hour for each hour worked over 22 hours a week for working his day off, training or other special " emergency" situations. [Def. Ex. A0002.] 101. The week that Wymer did not receive premium pay, he worked a total of 26 hours. He

was compensated only his regular salary wage for these hours worked because they fell within the 22 to 35 hour contracted hours. [Def. Ex. A0002-0022-24 (Wymer wage records); Record 662:20-22 (Etter testimony that if worked between 22 and 35 hours in a workweek, received salary wage pursuant to fixed workweek pay plan).] 102. On the occasions in which Plaintiffs recorded that they worked over 40 hours in a

workweek, they were compensated a premium rate. This rate was a flat-rate that was arrived at to sufficiently compensate all managers at time and one-half their regular rate of $5.94 an hour, including

9

10

See Def. Ex. A0001-0004 through Def. Ex. A0001-0006. See Def. Ex. A0001-0021 through Def. Ex. A0001-0023.

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lodging. [Record 649:13-652:15 (Etter testified that he completed a " litmus test" whereby he took the salary of the highest paid manager and confirmed that the premium rate of $14.16 an hour would cover the overtime rate and lodging.). See generally, Def. Ex. A0001 and Def. Ex. A0002.] 103. In sum, Plaintiffs' were compensated based on one of the four following scenarios: (a.) If Plaintiffs worked less than 22 hours per week, then they were paid a pro-rated salary. (b.) If Plaintiffs worked greater than 22 hours per week, but less than 35 hour per week, then they were paid their salary wage (premium pay paid for qualifying hours only). (c.) If Plaintiffs worked greater than 35 hours per week, but less than 40 hours per week, then they were paid premium pay in addition to their salary wage. (d.) Worked greater than 35 hours per week and greater than 40 hours per week, then they were paid premium pay in addition to their salary wage. 104. Under all of these scenarios, Plaintiffs were paid for all hours worked and were properly

paid for all hours worked over forty in a single work week at a rate of not less than one and one half times the employee'regular rate of pay. s F. 105. Plaintiffs' Claimed Unpaid Wages Notwithstanding the hours that they recorded and submitted to Landvest on their

timesheets, Schneider and Wymer filed separate complaints with the Colorado Department of Labor (" CDOL" after they resigned their employment effective April 4, 2002. [Def. Ex. A0022.] ) 106. Schneider claimed that she arrived at the amount of her claim by " adding the additional

(actual hours worked) but forbidden to put down on the time sheet, times the regular hourly rate. Then added the overtime hours worked but denied payment for, times 1 ½ regular hourly rate."[Def. Ex. A0022-0001.] 29

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107.

Wymer claimed that he " added all hours worked but not allowed to put down on time

sheet times the hourly rate plus the amount of overtime on time sheet that was not paid."[Def. Ex. A0022-0002.] 108. In their complaint to the CDOL, Schneider and Wymer claimed that they each worked

" least 4 hours more per day than allowed to record on our time sheets." " order to operate a at In Security Self Storage facility to Landvest'specifications, it was necessary for us to work 8 hours each s per day."[Def. Ex. A0031-0001.] 109. This consisted of working four 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. In addition, they claimed to have worked four hours on every Sunday except one from November, 2002 - March 2003. [See generally, Def. Ex. A0031-0001.] 110. They continued to reiterate in each of their correspondence to the Department that they

worked a " minimum of 8 hours each per day." [Def. Ex. A0031-003, ¶ 3 (July6, 2003 letter).] 111. An itemization of Plaintiffs' damages as alleged in their complaint to the CDOL can be

summarized as follows: Schneider Regular Hours 1,092.50 (at $9.44/hr = $10,313.20) Overtime Hours 24.75 (at $14.16/hr = $350.46) Total unpaid wages - $10,663.66 Wymer Regular Hours 1,057 (at $9.44/hr = $9,978.08) Overtime Hours 12 (at $14.16/hr = $169.92)) Total unpaid wages = $10,148.00

[Def. Ex. A0021-0001; Def. Ex. A0024-0002.] 112. Since filing this lawsuit, however, Plaintiffs have expanded their wage claim to include

an additional two to three hours every week after 6:00 p.m. preparing end of day, end of week and end of month reports. [Plaintiffs' Initial Rule 26(a)(1) Disclosures, January 30, 2004.] 113. By the time of trial, Plaintiffs number of hours have grown to 45 to 50 hours per week

[Record 117:16-118:10.] 30

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114.

Plaintiffs also now claim that instead of each working four hours on Sunday, they

worked from " to six, seven" four hours on Sundays from November 10 until they resigned. [Record 96:2-6.] 115. An itemization of Plaintiffs' damages as alleged in their disclosures after the filing of

this lawsuit can be summarized as follows: Schneider Regular Hours 954 (at $9.44/hr = $9005.76) Overtime Hours 229.50 (at $17.12/hr = $3,929.04) Total unpaid wages - $12,934.80 Wymer Regular Hours 954 (at $9.44/hr = $9005.76) Overtime Hours 92 (at $17.12/hr = $1,575.04)) Total unpaid wages = $10,580.8011

[Plaintiffs' Supplemental Rule 26(e) Disclosures, March 15, 2004.] 116. Other than Plaintiffs' complaint made to the CDOL, David Mason, Vice President of

Landvest, was not aware of any other manger complaining of not being paid for all hours worked or complained about an adjustment of hours made either by a regional manager or by the area manager. 117. Plaintiffs were instructed, agreed and understood to write down all hours worked.

[Cramer Depo. p. 31:24-32:21; 53:15-54:3; 72:25-73:7; 75:7-13.] 118. They recorded the hours that they worked, which varied from week to week, and

submitted a weekly timesheet every two weeks. Plaintiffs were paid according to the time that they submitted on their timesheets. [See generally, Def. Ex. A0001 and A0002.] 119. Other than Plaintiffs' timekeeping records of work performed, Landvest had no

knowledge that Plaintiffs' were not properly recording the hours that they were working. Plaintiff never indicated, anyhow, any way, to Mason that they were not being able to record all hours worked. [Record 532:5-8 (Mason).]

11

Plaintiffs also claim liquidated damages in the amount of $3,929 for Schneider and $1,575.04 for Wymer for a grand total of $16,863.80 in claimed damages for Schneider and $12,155.84 in claimed damages for Wymer.

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120.

Although Plaintiff Schneider testified at trial that she was " instructed by Mr. Cramer

to destroy" written record of actual hours worked on her second pay period, this was the first time her that Schneider made this accusation. Prior to trial, Schneider did not make this allegation to the Department of Labor, nor did she raise it in her deposition or discovery responses. [Record 47:2-13 (Schneider).] 121. Plaintiffs were largely unsupervised and entrusted with performing their duties under

the agreed hours of operation. [Record 521:16-522:5 (Mason testified that the Plaintiffs and the current resident managers have reported similar hours but that he isn'there to observe how much time t they spend because they are unsupervised.).] 122. Landvest had no reason to suspect that the regular operation of Plaintiffs' facility

required them to work more than the hours that they were recording, let alone more than 40 hours in a single workweek. [Record 449:10-21 (Mason testified that he believed the Plaintiffs' when they submitted their timesheets showing 22 regular hours of work and he did not have any reason to think they' really worked more hours.).] d 123. In fact, it was the experience of prior and current managers of that facility that under

normal circumstances for any day'work, four hours a day per person, between them, was sufficient s to operate the facility. [Cramer Depo. 24:20-25:9; Record 586:1-6 (Murray testified that based on his experience as a resident manager and a regional manager, that it is possible to do the tasks that are required of a resident manager in 20 to 35 hours, " easily" See also, Record 521:15-23 (Mason . testifies that current resident managers at the Iliff facility are averaging 26 or 27 hours per week).] G. 124. Plaintiffs' Resignation from Employment On March 21, 2003, Plaintiff Wymer sent a hand-written letter of resignation by

facsimile to Neil Murray and David Mason. [Def. Ex. A0020-0002.] 32

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125.

Plaintiff Wymer informed Murray and Mason that he was giving his two-weeks notice

that he was leaving his position as an Area and Resident Manager, effective Friday, April 4, 2003. [Def. Ex. A0020-0002.] 126. Wymer indicated in his resignation letter that one of the reasons for his resignation was

that " David Mason treats all of his ` managers' with cruelty, suspicion, and disrespect. Even though his ` managers' good, hard-working, devoted and responsible people - he leaves their site only after are making them feel that their work is never good enough - no matter how wonderful a job they are doing."[Def. Ex. A0020-0002.] 127. When Murray contacted Wymer to discuss the letter, Wymer was very confrontational

and said that he had been " abused and mistreated as a child and would be damned if he was going to put up with it as a grown man."[Def. Ex. A0020-0001.] 128. From this conversation, Murray felt that Wymer " have serious anger problems that may

have the potential for physical confrontation," indicated he would try to take someone with him and as a witness when he went to the site the following day to collect the keys to the office. [Def. Ex. A0020-0001.] 129. In speaking with Wymer, Murray had also discovered that he had faxed his resignation

letter to all resident managers in the Denver area. [Def. Ex. A0020-0001.] 130. Wymer continued publicizing his anger in a public protest of the facility after he left

Landvest. [Def. Ex. A0041-001, Def. Ex. A0041-002.] 131. Wymer' sudden hostility towards Mason and his attempt to engage other resident s

managers in his coup resulted from Landvest'refusal to restructure Plaintiffs' s compensation in a way that could violate the Fair Labor Standards Act.

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132.

This was evident by Plaintiffs' sudden lack of devotion to their work when they began

to let the site run down. [Record 589:17-25 (Murray).] 133. In October of that year, Schneider had made a written request to Murray and Mason

that the annual salary of $21,600 not be divided equally among both of them while making no offer to reduce her hours worked. [Def. Ex. A0017-0001; Record 120:25-121:8 (Schneider).] 134. Schneider explained that the reason for the request was because:

I receive Social Security Disability and Medicare Benefits for a congenital condition called Charcot-Marie-Tooth (a form of Muscular Dystrophy). There is no known cure for this disease and should I have a severe enough relapse of my condition in the future, I would need to depend solely on the Medicare and Disability Benefits. I have checked into several private insurance companies and most will not even consider me a policyholder and all but one would not cover any Preexisting Conditions. Once Medicare or Social Security Disability has dropped you, it is almost impossible to go back on the program. [Def. Ex. A0017-001.] 135. Schneider admitted that she had been receiving Social Security disability benefits since

she was 18 years of age and she made the request in order to continue to receive her social security benefits without going over the limit of substantial gainful activity. [Record 228:12-229:4; 230:3-8 (Schneider).] 136. Schneider claimed that previous employers had " legally divided [their] pay unevenly"

and that there would be " legal problems with the situation" long as she was paid enough " be no as to covered by Workers' Compensation."[Def. Ex. A0017-0001; Record 229:23-230:2.] 137. Schneider stressed the urgency of her request and indicated that she needed to " make

a decision within the next 2 months based on the decision you make." She explained that she is " allowed one period of nine months where I am able to make any amount above $700.00 per month

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before I am dropped by Social Security."According to Schneider, her nine-month period was to end on December 31, 2002. [Def. Ex. A0017-0001.] 138. Schneider did not receive a response to her request and followed up with a memo to

Mason and Murray that was faxed on December 2, 2002 asking if a decision had been made for her " to be lowered and the difference to be given in Dean'name."[Def. Ex. A0018-0001.] pa