Quoc Viet v. Victor Le; Copier Victor, Inc.

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 20a0076p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
QUOC VIET,
Plaintiff-Appellant,
v.
VICTOR LE; COPIER VICTOR, INC.,
Defendants-Appellees.
┐
│
│
│
│
│
│
│
┘
No. 18-6191
Appeal from the United States District Court
for the Eastern District of Tennessee at Knoxville.
No. 3:17-cv-00114—Harry S. Mattice, Jr., District Judge.
Decided and Filed: March 10, 2020
Before: KETHLEDGE, BUSH, and MURPHY, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Katherine A. Young, YOUNG LAW OFFICE, P.C., Knoxville, Tennessee, for
Appellant. Dale J. Montpelier, MONTPELIER, DELLA-RODOLFA & LOPE, P.C., Knoxville,
Tennessee, for Appellees.
_________________
OPINION
_________________
MURPHY, Circuit Judge. The Fair Labor Standards Act (FLSA), 29 U.S.C. § 207(a)(1),
requires employers to pay overtime to employees who work more than 40 hours per week. In
this case, we consider the kind of evidence employees must present to create a jury question over
whether they worked overtime. Quoc Viet bought used copiers for Victor Le and Le’s
corporation, Copier Victor, and shipped these copiers to Vietnam for resale. After the parties’
relationship soured, Viet sued Le and Copier Victor alleging that they wrongly failed to pay him
>

-- 1 of 10 --

No. 18-6191 Viet v. Le Page 2
overtime. Viet testified that he typically worked 60 hours per week but offered few details to
support his estimate. The district court found Viet’s testimony about his average workweek too
vague and conclusory to withstand summary judgment. We agree and affirm.
I
Born in Vietnam, Quoc Viet immigrated to this country with his parents as a teenager.
After years of service in the U.S. Navy, Viet settled near Knoxville, Tennessee, and began
working as a handyman. In 2012, Viet met Victor Le while doing repair work at Le’s home.
Like Viet, Le had also previously lived in Vietnam. While there, he had operated a company that
imported and resold goods, including copiers. A couple years after Le immigrated to the United
States, he incorporated another company, Copier Victor, to export copiers to Vietnam for resale
in that country.
Shortly after meeting Viet, Le asked him to invest in, and do work for, Copier Victor.
Viet invested $10,000 in the company in exchange for payments of $750 every 30 or 40 days.
He also received training from Le on how to purchase used copiers online. After training Viet,
Le returned to Vietnam.
From mid-2013 until September 2016, Le ran the business primarily from Vietnam and
Viet ran the business primarily from the United States. Viet purchased used copiers in the
United States and shipped them to Vietnam. Le then resold the copiers in that country.
Viet conducted his stateside work from his home and a nearby warehouse.
He communicated with Le through Facebook accounts, as well as by phone and messaging
applications. Le typically gave Viet instructions on the types of copiers to buy and the general
price range to seek. Viet would then search for copiers on websites like Craigslist and negotiate
the price with sellers. Viet typically arranged for the copiers to be shipped to the Tennessee
warehouse. Occasionally, he would have to pick up and transport a copier to the warehouse
himself. When Viet had enough copiers at this warehouse, he oversaw their bulk shipment to
Vietnam. He sent spreadsheets to Le that itemized the copiers he had purchased and the amounts
Le owed him.

-- 2 of 10 --

No. 18-6191 Viet v. Le Page 3
Copier Victor and Le treated Viet as an independent contractor. Viet always received the
1099 tax form used for independent contractors, not the W-2 form used for employees. Le also
did not set any work schedule for Viet, did not keep track of Viet’s hours, and did not pay Viet
an annual salary or wage. Instead, Le paid Viet a fixed rate for each copier that Viet purchased.
The more copiers that Viet bought, the more money he made. The commission Le paid Viet for
a copier depended on its purchase price. If Viet bought a copier for $500 or less, Le would pay
him $100. If Viet bought a copier for between $500 and $1,000, Le would pay him $150. And if
Viet bought a copier for between $1,000 and $1,500, Le would pay him $200. The commissions
continued to increase by $50 for every $500 increase in a copier’s purchase price.
By mid-2016, tensions arose in this business relationship. According to Viet, Le stopped
paying him for copiers and reimbursing him for expenses. According to Le, Viet began sending
damaged copiers that could not be resold in Vietnam and continued to do so even after Le asked
him to stop. The relationship ended in September 2016.
Claiming to have been an employee all along, Viet brought this FLSA suit against Le and
Copier Victor. He alleged that Le and Copier Victor violated the FLSA by not paying him
overtime wages from April 2014 to September 2016. During this time, the complaint asserted,
Viet worked about 60 hours per week. Viet also alleged that Le and Copier Victor violated the
FLSA by not reimbursing him for expenses incurred for the business. (Viet originally filed an
additional breach-of-contract claim against Le and Copier Victor, but the parties agreed to
litigate their competing state-law claims in a case that Copier Victor had brought against Viet in
state court.)
The district court granted summary judgment to Le and Copier Victor. The court
assumed that Viet qualified as an employee under the FLSA for purposes of its ruling. It
concluded, however, that Viet’s evidence that he had worked more than 40 hours per week did
not suffice to withstand summary judgment. The court described Viet’s testimony about the
hours he had worked as “equivocal, conclusory, and lacking in relevant detail.” Viet also
provided no written evidence to corroborate his claim that he worked 60 hours per week, despite
suggesting that his emails would back up his testimony. Turning to Viet’s claimed expenses, the
court next held that the FLSA did not entitle him to any reimbursement. The court found instead

-- 3 of 10 --

No. 18-6191 Viet v. Le Page 4
that Viet should attempt to recover those expenses through his breach-of-contract claim pending
in state court. Viet appealed.
II
It is not at all clear that Viet qualifies as an employee covered by the FLSA under the
multi-factored balancing test we use to answer that question. Compare Acosta v. Off Duty Police
Servs., Inc., 915 F.3d 1050, 1054–63 (6th Cir. 2019), with Donovan v. Brandel, 736 F.2d 1114,
1117–20 (6th Cir. 1984). The district court, however, assumed that Viet was an employee for
purposes of its ruling, and Le and Copier Victor do not seek to defend its judgment on this
alternative ground. We thus make the same assumption on appeal. Taking that assumption as a
given, Viet says the district court committed two errors: (1) it wrongly found that he lacked
enough evidence to create a jury question over whether he worked overtime, and (2) it wrongly
interpreted the FLSA to bar his request for expenses.
A
The FLSA requires an employer to pay its employees overtime wages at a rate of not less
than one-and-a-half times the regular rate of pay for every hour that employees work over 40
hours per week. See Keller v. Miri Microsystems, LLC, 781 F.3d 799, 806 (6th Cir. 2015); 29
U.S.C. § 207(a)(1). An employee who claims that he was not paid this overtime rate “has the
burden of proving that he performed work for which he was not properly compensated.”
Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946), superseded by statute on other
grounds as stated in Carter v. Panama Canal Co., 463 F.2d 1289, 1293 (D.C. Cir. 1972);
O’Brien v. Ed Donnelly Enterps., Inc., 575 F.3d 567, 602–03 (6th Cir. 2009), abrogated on other
grounds by Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663 (2016). If an employee carries this
initial burden but cannot recall the precise number of unpaid overtime hours, the employee may
seek the work records that the FLSA requires employers to maintain. Anderson, 328 U.S. at 687;
29 U.S.C. § 211(c). Yet if an employer has failed in its statutory duty to keep these records, the
Supreme Court has held that the employee may still establish damages by “produc[ing] sufficient
evidence to show the amount and extent of [his uncompensated] work as a matter of just and
reasonable inference.” Anderson, 328 U.S. at 687. This relaxed burden, however, applies to

-- 4 of 10 --

No. 18-6191 Viet v. Le Page 5
damages questions only after an employee has met the initial burden to “establish[] liability” by
showing that the employee performed uncompensated overtime work. O’Brien, 575 F.3d at 603;
see also Carmody v. Kansas City Bd. of Police Comm’rs, 713 F.3d 401, 406 (3d Cir. 2013). In
other words, the ordinary burden of proof governs the threshold question whether the plaintiff
worked overtime at all.
This case concerns that threshold question: Does Viet’s evidence permit a reasonable jury
to conclude that he worked more than 40 hours per week during any given week between April
2014 and September 2016? To answer that question, we begin with a general refresher on
Federal Rule of Civil Procedure 56. Rule 56 directs a court to grant summary judgment “if the
movant shows that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). This language compels summary
judgment “against a party who fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the burden of proof at
trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A nonmoving party has not made that
sort of showing if “the record taken as a whole could not lead a rational trier of fact to find” in
the party’s favor. Ricci v. DeStefano, 557 U.S. 557, 586 (2009) (citation omitted). That is true
even if the moving party does not itself come forward with evidence affirmatively negating the
disputed element. Celotex, 477 U.S. at 323.
So what does it take for a party to establish that a “rational trier of fact” could rule in its
favor on a disputed element? The party must identify “specific facts, as opposed to general
allegations,” establishing the element. 10A Charles Alan Wright et al., Federal Practice and
Procedure § 2727.2, at 501 (4th ed. 2016). Just as a plaintiff may not rely on conclusory
allegations to proceed past the pleading stage, Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007), so too a plaintiff may not rely on conclusory evidence to proceed past the summary-
judgment stage, Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888–89 (1990). “Conclusory
statements unadorned with supporting facts are insufficient to establish a factual dispute that will
defeat summary judgment.” Alexander v. CareSource, 576 F.3d 551, 560 (6th Cir. 2009).
A discrimination plaintiff’s generic testimony that she was qualified for a position, for example,
does not suffice to withstand summary judgment on that qualification issue without specific facts

-- 5 of 10 --

No. 18-6191 Viet v. Le Page 6
supporting this general testimony. Id.; see also, e.g., Tschappatt v. Crescent Metal Prods., Inc.,
__ F. App’x __, 2020 WL 260985, at *2 (6th Cir. Jan. 17, 2020); Mosquera v. MTI Retreading
Co., 745 F. App’x 568, 573 (6th Cir. 2018); Arendale v. City of Memphis, 519 F.3d 587, 605 (6th
Cir. 2008).
When applying these general Rule 56 standards in this FLSA context, courts have
considered the level of evidence that employees must present to create a jury question over
whether they worked overtime. Generally speaking, if an employee describes a specific work
schedule exceeding 40 hours, courts have found the testimony sufficient. If, by contrast, the
employee testifies generically that the employee worked overtime without providing details to
support this claim, courts have found that the testimony falls short.
On one side of things, our court has twice found evidence sufficient when it detailed the
specific hours that the employee typically worked. See Moran v. Al Basit LLC, 788 F.3d 201,
205–06 (6th Cir. 2015); Keller, 781 F.3d at 816. In Keller, Michael Keller installed satellite
dishes for “a satellite-internet-dish installation company.” 781 F.3d at 804. We suggested in
dicta that Keller’s testimony that he worked more than 40 hours per week might satisfy Rule 56,
but we did not “rely on [his] testimony alone[.]” Id. at 816. That is because his employer
conceded that Keller worked six days a week, that he performed four jobs per day, and that each
job would take about two-and-a-half hours. Id. So Keller presented specific evidence allowing a
rational jury to conclude that he regularly worked “sixty hours each week” excluding the travel
time between jobs and administrative tasks. Id.
Similarly, the employee in Moran, Jeffery Moran, held a mechanic’s job in an auto repair
shop. 788 F.3d at 202. Moran testified that he had agreed to work six days per week during the
store’s hours of operation, which added up to “fifty-eight hours a week.” Id. Not only that,
Moran got to the shop a half hour before it opened and stayed until the day’s work was done,
which meant that he typically worked “an average of sixty-five to sixty-eight hours per week.”
Id. at 202–03. Despite conflicting evidence from the employer, we found this testimony
sufficient to create a genuine dispute of material fact over whether Moran had worked overtime:
Moran’s “testimony coherently describe[d] his weekly work schedule, including typical daily
start and end times which he used to estimate a standard work week of sixty-five to sixty-eight

-- 6 of 10 --

No. 18-6191 Viet v. Le Page 7
hours.” Id. at 205. And employees need not “recall their schedules with perfect accuracy in
order to” avoid summary judgment. Id.
On the other side of things, courts have deemed conclusory allegations about an
employee’s work schedule insufficient under Rule 56. See, e.g., Holaway v. Stratasys, Inc., 771
F.3d 1057, 1059–60 (8th Cir. 2014); Carmody, 713 F.3d at 407; Turner v. The Saloon, Ltd., 595
F.3d 679, 690–91 (7th Cir. 2010); Harvill v. Westward Commc’ns, L.L.C., 433 F.3d 428, 441
(5th Cir. 2005). Holaway provides the best example. Greg Holaway worked as a field service
engineer for a company that made 3D printers, and traveled to client sites to install or service
printers. 771 F.3d at 1058. Holaway estimated that he typically worked 60 to 70 hours per
week, but provided few details showing that his tasks required more than 40 hours per week. Id.
He said that he would spend “two to three hours doing preparation work” before heading to any
jobs and “three to four hours traveling to locations.” Id. He also mentioned several after-hours
weekly activities, including preparing expense reports. Id. The Eighth Circuit found that this
testimony was too conclusory under Rule 56. Id. at 1059–60. Holaway “failed to put forward
any evidence of the amount and extent of his work in excess of forty hours a week for any week
worked for [the company], let alone evidence of excess hours worked every week of his
employment.” Id. at 1059. His general testimony about his average hours also did not suffice to
create a jury question because he did not support it with a “meaningful explanation of how he
arrived at his final estimate of sixty hours a week, every week, of his employment.” Id. at 1060.
Where does Viet’s case fall? It is more like the Eighth Circuit’s decision in Holaway
than our decisions in Moran or Keller. The district court correctly held that Viet’s testimony was
too “equivocal, conclusory, and lacking in relevant detail” to create a genuine dispute of material
fact under Rule 56.
Begin with Viet’s estimate of his average weekly schedule. He claimed that he typically
worked 60 hours per week. Yet, just as in Holaway, that “bare assertion[]” is too conclusory to
create a jury question over whether Viet worked overtime in any given week between April 2014
and September 2016. 771 F.3d at 1059; see also Mosquera, 745 F. App’x at 573.

-- 7 of 10 --

No. 18-6191 Viet v. Le Page 8
And unlike Moran and Keller—where the evidence established specific day-to-day
hourly routines that added up to well over 40 hours per week, see Moran, 788 F.3d at 202–03;
Keller, 781 F.3d at 816—Viet did not fill in his general 60-hour estimate with specific facts
about his daily schedule. Without Viet’s general estimate, his deposition testimony would leave
a jury simply guessing at the number of hours he worked in any given week. Le lived primarily
in Vietnam, and Viet worked independently and set his own daily hours. Yet he did not provide
even basic details about his typical day (such as by saying, for example, that he preferred to work
from 8 to 6 or 9 to 8). And deposition questions seeking to probe his daily or weekly routine
were met with entirely conclusory responses. When asked, for example, whether he worked
10 hours per day, Monday through Saturday, he said only: “Whenever like I have time I do it.”
When asked the days of the week that he typically worked, he responded: “Almost every day.”
When asked how much time he spent working from his house, he answered: “So much time.
Every time I got free time.” He offered no estimate of his daily hours or schedule.
Unable to rely on a usual workweek to establish overtime work, Viet also cannot rely on
estimates about the time required for his duties. Take, for example, his primary duty of
searching online for copiers. He testified that it took him at least 30 minutes to find a machine.
Yet he conceded that Le never asked him to find 80 copiers in a week (which would add up to 40
hours of searching). And he gave conflicting testimony about the average search time, noting
that some copiers took up to 20 hours to find. He also provided no estimates of the average
number of copiers he searched for each day. Was it 10? Was it 100? We do not know.
Next consider Viet’s work at the warehouse arranging for shipments. He gave no
estimate of the amount of time each week he spent there. He instead invoked another conclusory
response: “Sometimes I work at the warehouse” but “not all the time[.]” He also conceded he
was not at the warehouse enough to have mail delivered there. And although he explained some
of the tasks he performed at the warehouse—sweeping the floors, wrapping and hauling
machines, waiting for deliveries—the evidence does not show how often he did them.
All told, Viet could withstand summary judgment only if we adopted a legal rule that
conclusory estimates about an employee’s average workweek allow a rational jury to conclude
that the employee worked overtime. Like the Eighth Circuit, we reject that rule. Here, as in

-- 8 of 10 --

No. 18-6191 Viet v. Le Page 9
Holaway, Viet’s “evidence is inconsistent and provides no details which would allow a jury to
determine [that he] worked beyond forty hours in any specific week.” 771 F.3d at 1060.
Viet’s contrary arguments do not convince us otherwise. He starts with arguments that
misread both the FLSA and Rule 56. As for the FLSA, Viet says that it places the onus on
Copier Victor to keep accurate records and that the Supreme Court has relaxed the standard of
proof when an employer does not do so. Anderson, 328 U.S. at 687–88. Yet this relaxed
standard applies to damages calculations only after an employee has shown “a violation under
the FLSA.” O’Brien, 575 F.3d at 603. Viet failed to present evidence that creates a genuine
dispute of material fact about Le and Copier Victor’s purported FLSA “liability.” Id.
As for Rule 56, Viet argues that Le and Copier Victor failed to identify evidence showing
that he worked less than 40 hours per week. Yet Viet bears the burden to prove that he worked
overtime during every week for which he seeks overtime pay. Id. at 602–03. Because Viet bears
this burden, Le and Copier Victor are entitled to summary judgment if “the record taken as a
whole could not lead a rational” jury to conclude that he worked overtime. Ricci, 557 U.S. at
586 (citation omitted). And Viet’s “[c]onclusory statements” about his overtime work do not
allow a rational jury to make that conclusion. Alexander, 576 F.3d at 560. So Viet failed to
“establish the existence of an element essential to [his] case,” and Le and Copier Victor had no
further duty to present evidence negating the overtime work. Celotex, 477 U.S. at 322–23.
Viet next points to evidence other than his testimony to create a fact question over
whether he ever worked more than 40 hours per week. He argues that Copier Victor’s “volume
of business” (roughly $1.2 million over three years) and his emails with Le “at all hours of the
day and night” indirectly bolster his testimony. We agree with the district court that this
evidence would not allow the jury even to “hazard a guess as to how many hours” he worked. If
anything, the lack of documentary evidence cuts against Viet. He testified that his many work
emails would corroborate his claim that he worked overtime. Yet, as the district court noted,
Viet did not rely on these emails at this summary-judgment stage. And while he argues that
Copier Victor failed to produce them during discovery, he did not assert any discovery violations
or ask the district court for more time before ruling on the summary-judgment motion. Cf. Fed.
R. Civ. P. 56(d).

-- 9 of 10 --

No. 18-6191 Viet v. Le Page 10
Viet lastly complains that the district court created a “seemingly impossible standard” for
employees to withstand summary judgment over whether they worked more than 40 hours per
week. Not at all. Moran and Keller show that employees do not face heavy burdens. See
Moran, 788 F.3d at 205; Keller, 781 F.3d at 816. They need not “recall their schedules with
perfect accuracy in order to survive a motion for summary judgment.” Moran, 788 F.3d at 205.
They must only “coherently describe[]” their day-to-day work schedules or the time it takes to
complete their duties so that a rational jury could find that they worked more than 40 hours in the
weeks claimed. See id. What they may not do is simply turn a complaint’s conclusory
allegations about overtime work into an affidavit’s conclusory testimony about overtime work
and expect to get a jury trial under Rule 56. See Lujan, 497 U.S. at 888.
B
Viet’s failure to show that he worked overtime also dooms his distinct claim that Le and
Copier Victor failed to reimburse him for expenses incurred while pursuing their joint business.
On appeal, Viet seeks $1,200 in unreimbursed telephone expenses. He cites caselaw holding that
employers sometimes may not compel employees to pay certain expenses if those expenses
would cut the employees’ total pay below the level that the FLSA requires employers to pay in
minimum or overtime wages. See Gaxiola v. Williams Seafood of Arapahoe, Inc., 776 F. Supp.
2d 117, 125 (E.D.N.C. 2011) (discussing 29 C.F.R. § 531.35). In this case, however, Viet does
not assert that his pay fell below the required minimum wage. And because we have held that he
did not present sufficient evidence that he ever worked overtime hours, he cannot show that these
expenses cut into any overtime pay that he was entitled to receive. The district court thus
properly held that Viet could not recover his expenses under the FLSA (as compared to his
breach-of-contract suit).
We affirm.

-- 10 of 10 --