Opinion
Case No. 00-CV-73473
December 3, 2002
OPINION AND ORDER GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT
INTRODUCTION
In this case, involving the claims of a former employee of defendant BFI Waste Systems, Inc. ("BFI") brought under the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 201 et seq., defendants BFI and Allied Waste Systems, Inc. ("Allied Waste") both move for summary judgment. Because the court is in agreement that Allied Waste is not the plaintiff's employer, the court will grant Allied Waste's motion for summary judgment. Concerning the motion brought by defendant BFI, for the reasons stated herein, the court will grant summary judgment as to all claims brought by plaintiff against that defendant.
BACKGROUND
Plaintiff Robert Sexton is a former BFI garbage truck driver whose employment was terminated shortly after he gave a deposition in this case. He alleges the following violations of the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 201 et seq.: that he was not paid for lunch hours he was required to work by the company; that he was not paid for attendance at mandatory safety meetings; that BFI did not calculate his overtime in accordance with the FLSA; and that he was improperly discharged in retaliation for pursuing this lawsuit against BFI.
In March 2001 the court granted BFI's early-filed motion for summary judgment in part, dismissing 23 of the 24 plaintiffs included in plaintiffs' first amended complaint without prejudice, and denied BFI's motion for summary judgment as to the claim of Mr. Sexton. Mr. Sexton was the only plaintiff for whom an affidavit was prepared at the time of the summary judgment motion, therefore the only plaintiff for whom the court had any probative evidence.
Thereafter, in June 2001, the court held a hearing on plaintiff's motion to amend the complaint under Fed.R.Civ.P. 15(a) and add 31 plaintiffs. Plaintiff asserted that because just before that hearing plaintiff Robert Sexton was terminated by defendants, plaintiff required additional time to research and add other necessary claims against the defendants. Plaintiff's motion was denied without prejudice, as was plaintiff's oral request for in camera review of affidavits prepared by proposed new plaintiffs.
In November 2001, the court considered two additional motions filed by plaintiff: one to amend the complaint, to add 23 claimants (former or current employees of defendant(s)) who had allegedly signed affidavits/questionnaires attesting to their claims in this proceeding; 2) defendants' alleged failure to pay for work performed during lunch breaks; 3) defendants' alleged failure to pay for attendance at safety meetings/training and work done off the clock; 4) defendants' alleged retaliatory discharge of plaintiff Sexton in violation of the FLSA; and 5) defendants' alleged violation of Michigan Whistleblowers' Protection Act, MCLA 15.361 et seq. Plaintiff did not attach any of the referenced "affidavit/questionnaires" to his motion but referred to the contents of those affidavits in the proposed amended complaint. The court granted in part and denied in part plaintiff's motion to file a second amended complaint and dismissed the motion for an evidentiary hearing regarding the retaliatory discharge claim. Plaintiff's second amended complaint was filed on November 20, 2001.
Each of the defendants now move for summary judgment of all of plaintiff's claims.
STANDARD FOR SUMMARY JUDGMENT
Federal Rule of Civil Procedure 56(c) empowers the court to render summary judgment "forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." See FDIC v. Alexander, 78 F.3d 1103, 1106 (6th Cir. 1996). The Supreme Court has affirmed the court's use of summary judgment as an integral part of the fair and efficient administration of justice. The procedure is not a disfavored procedural shortcut. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986); see also Kutrom Corp. v. City of Center Line, 979 F.2d 1171, 1174 (6th Cir. 1992).
The standard for determining whether summary judgment is appropriate is "`whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Winningham v. North Am. Resources Corp., 42 F.3d 981, 984 (6th Cir. 1994) (citing Booker v. Brown Williamson Tobacco Co., 879 F.2d 1304, 1310 (6th Cir. 1989)). The evidence and all inferences therefrom must be construed in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Enertech Elec., Inc. v. Mahoning County Comm'r, 85 F.3d 257, 259 (6th Cir. 1996); Wilson v. Stroh Co., Inc., 952 F.2d 942, 945 (6th Cir. 1992). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); see also Hartleip v. McNeilab, Inc., 83 F.3d 767, 774 (6th Cir. 1996).
If the movant establishes by use of the material specified in Rule 56(c) that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law, the opposing party must come forward with "specific facts showing that there is a genuine issue for trial." First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 270 (1968);see also Adams v. Philip Morris, Inc., 67 F.3d 580, 583 (6th Cir. 1995). Mere allegations or denials in the non-movant's pleadings will not meet this burden. Anderson, 477 U.S. at 248. Further, the nonmoving party cannot rest on its pleadings to avoid summary judgment. It must support its claim with some probative evidence. Kraft v. United States, 991 F.2d 292, 296 (6th Cir.), cert. denied, 510 U.S. 976 (1993).
ANALYSIS
Defendant Allied Waste's motion for summary judgment:
Defendant Allied Waste, an entity related to defendant BFI, asserts that it has never been the employer of Robert Sexton and that it is entitled to summary judgment for that reason. Allied Waste contends that plaintiff has admitted that he was hired by BFI and that all W-2s and paychecks provided by plaintiff list BFI as his employer. Allied Waste states that plaintiff admitted in deposition that he does not recall getting a check with a name other than BFI on it, and, moreover, that he has received all unemployment benefits from BFI. Allied Waste's contention is, simply, that Sexton has come forward with no probative evidence that he was employed by Allied. Further, Allied Waste asks that Sexton pay its costs and attorney's fees pursuant to Fed.R.Civ.P. 11.
Note that alternatively, Allied joins in BFI's motion for summary judgment, which the court is granting for the reasons stated below.
In response, Sexton maintains that Allied is his "true" employer, and attaches various documents, such as portions of the collective bargaining agreement between a division of Great Lakes Waste Services and the Teamsters Local 247, references to Great Lakes Waste Services, and references to the parent corporation of both Allied and BFI, Allied Waste Industries, Inc.
Allied Waste's reply brief demonstrates that plaintiff has brought forward no evidence of employment by Allied Waste. Allied Waste convincingly shows the court that "Great Lakes Waste" is an assumed name used by BFI, and that "Allied Waste Industries, Inc." is the parent company of both Allied Waste Systems, Inc. and BFI. Because the court is in agreement that the documents proffered by the plaintiff do not appear to raise a material question of fact that Allied Waste Systems, Inc. has ever been Sexton's employer, the court will grant Allied Waste's motion for summary judgment as to all claims brought against Allied Waste in the plaintiff's complaint.
Defendant BFI's motion for summary judgment: 1. Nonpayment for lunch hours
This claim was added at the time of his plaintiff's second amended complaint. In arguing for its dismissal, defendant BFI states that plaintiff has no evidence that he was not paid for lunch hours worked. As BFI has convincingly argued, plaintiff testified at deposition and at a post-termination arbitration proceeding filed by his union that if he failed to take a lunch break, he was susceptible to immediate discharge by BFI (Sexton deposition, pp. 139-40). Furthermore, BFI contends plaintiff has admitted that he was never disciplined for taking lunch at BFI (Sexton arbitration, pp. 116-119), that he was not threatened with discharge for taking a lunch (Sexton deposition pp. 140-41), that he knew of no documents supporting his claim that his pay was docked for a lunch that he worked (Sexton deposition pp. 141-146), and that plaintiff cannot specifically cite any lunch he worked but for which he was not paid (Sexton arbitration pp. 104-05).
Plaintiff, however, maintains that defendant subtracted lunch breaks from employees' compensation, whether they took lunch breaks or not. Plaintiff points to time sheets (located at Tab H attached to his response) that do appear to indicate that time was deducted from the total worked each day. Plaintiff further cites to his own testimony and that of a John Reynolds, to support their contention that despite the fact that lunch breaks were normally not taken, a half hour was regularly deducted from hours worked in calculating the applicable day rate. Plaintiff cites to Dr. Pepper Bottling Company v. Hartsell, 207 F.3d 694 (5th Cir. 2000) for the proposition that a determination on entitlement to compensation for a meal period depends on whether the employee or employer predominately benefited from the meal period. Plaintiff cites to the Dr. Pepper case and states that an employee "must be completely relieved from duty for the purposes of eating regular meals" for the period to be classified as a meal period. Plaintiff does not address defendant's contention that he was required to take a lunch break under company policy, but argues that there is a genuine issue of material fact here when the "predominate benefit" test used in the Dr. Pepper case is applied to the facts of this case.
In the Dr. Pepper case, the court looked to the language of 29 C.F.R. § 785.19 to assist it in determining whether the plaintiff-employees were entitled to compensation for their lunch periods. That provision states that:
* * *
Bona fide meal periods are not worktime. Bona fide meal periods do not include coffee breaks or time for snacks. These are rest periods. The employee must be completely relieved from duty for the purposes of eating regular meals. Ordinarily 30 minutes or more is long enough for a bona fide meal period. A shorter period may be long enough under special conditions. The employee is not relieved if he is required to perform any duties, whether active or inactive, while eating. For example, an office employee who is required to eat at his desk or a factory worker who is required to be at his machine is working while eating.
* * *
29 C.F.R. § 785.19. In the case of Hill v. United States, 751 F.2d 810 (6th Cir. 1984), the court determined that the plaintiff postal worker did not have a right to compensation for his lunch period. That court reasoned that:
[a]s long as the employee can pursue his or her mealtime adequately and comfortably, is not engaged in the performance of any substantial duties, and does not spend time predominantly for the employer's benefit, the employee is relieved of duty and is not entitled to compensation under the FLSA. . . .Hill, 751 F.2d at 814. Under both the applicable regulation and the standard set forth in Hill a critical inquiry is whether or not the employee is relieved of work duties.
Unlike the Dr. Pepper case, where the employees' testimony concerning their lunch breaks included information that they had been disciplined verbally for taking a lunch break, and that required work made it difficult to take such a break, plaintiff in the matter sub judice has not produced one item of evidence to demonstrate that he was ever unable to take a lunch break. The fact that plaintiff, and possibly other BFI employees, chose to work through such lunch periods or take abbreviated breaks to speed up completion of their routes does not convince the court that BFI's policy thwarts the intent of the FLSA. Plaintiff, who could not be supervised during his work day due to the nature of his job, spent his half hour lunch period as only he saw fit. The court is persuaded by BFI that a company's requirement that its employees record a lunch period, during which they are not required to work, is not a violation of the FLSA. The court is persuaded that the plaintiff was relieved of his duties during his lunch period. Thus, summary judgment will enter as to BFI on this claim.
2. Plaintiff's mandatory meeting claim
In this claim, also added in plaintiff's second amended complaint, plaintiff states that he was regularly required to attend safety meetings that would begin before his shift, and that it was a consistent practice to require employees to wait until after the safety meeting to punch in for the day. Defendant moves for summary judgment of this claim, asserting that plaintiff has no evidence that he was not paid for mandatory meetings, that in deposition testimony plaintiff admitted that this claim was based on his beliefs, not facts, and that the claim is pure speculation.
In response to defendant's motion for summary judgment on this claim, plaintiff cites to his own testimony and that of John Reynolds to support this assertion. Plaintiff's deposition testimony on this subject, located at pp. 150-152 of his deposition transcript (Exhibit G to plaintiff's response brief), indicates that plaintiff was trying to discover whether he was paid or not paid for such meetings, pp. 150-51, and that he believed he was docked 1/2 hour for a meeting "a couple of months" prior to his May 21, 2001 deposition. Reynolds' testimony, on pp. 5 and 13-14 of his deposition transcript (Exhibit F to plaintiff's response brief), states that when he attended safety meetings, he would not even get his time card to punch in until after he attended the safety meeting. However, as BFI points out in response, Reynolds' testimony also includes his statement that he had no personal knowledge of how many safety meetings were attended by plaintiff, and cannot assert whether plaintiff was paid for any such meetings (Reynolds' deposition transcript, pp. 53-54).
The only particular instance on which plaintiff has offered evidence concerns plaintiff's request for pay for a meeting he attended on May 16, 2001, to which defendant responded that plaintiff had come early to the wrong meeting and was not entitled to pay for that time period. However, defendant's reply brief shows that plaintiff was in fact paid for that one-half hour time period.
Because the court is in agreement that neither plaintiff's nor Reynolds' testimony indicates any personal knowledge or recollection of any meetings which plaintiff attended but for which he was not paid, it is the court's finding that plaintiff has not shown with specific facts that there is a genuine issue for trial. Summary judgment will enter for defendant BFI as to this claim as well.
3. Day rate calculation claim
In arguing for summary judgment on this claim, concerning calculation of the day rate, BFI asserts plaintiff's concession that he does not in fact know whether BFI calculated his pay in accordance with the FLSA. Plaintiff cannot assert the amount of his unpaid compensation, and BFI points to his deposition testimony where he states that his problem with BFI was that his regular rate bounced up and down depending on the number of hours he worked, which he beileved caused his overtime to be undercompensated. This does appear to be the claim that was rejected by the Fifth Circuit in DuFrene v. Browning-Ferris, Inc., 207 F.3d 264 (5th Cir. 2000).
On the other hand, plaintiff argues that defendant's reliance on theDuFrene opinion and 29 C.F.R. § 778.112 is misplaced. This is because, plaintiff asserts, he received "other compensation" for his services (see below). Further, he states that this court does not have to follow a Department of Labor regulation promulgated under the FLSA and does not have to follow the Fifth Circuit, if following that precedent thwarts the intent of the FLSA. Plaintiff contends that his employer did not pay a true "day rate."
29 C.F.R. § 778.112 states the following:
If the employee is paid a flat sum for a days' work or doing a particular job, without regard to the number of hours worked in the day or at the job, and if he receives no other form of compensation for services, his regular rate is determined by totaling all the sums received as such day rates or job rates in the work week and divided by the total hours worked. He is then entitled to extra half-time pay at this rate for all hours worked in excess of forty in the week.
Plaintiff contends that because he has received another "form of compensation for services," (special pay), his pay should not be calculated according to the above formula. Plaintiff points out that inDuFrene, the parties stipulated that the only method of compensation used by the employer was a day rate compensation. Here, plaintiff contends, he and others were paid additional compensation in the form of special pay on the same day they received a day rate, and he was also paid using other methods during his tenure with BFI. The FLSA does require that
no employer shall employ any of his employees . . . for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.29 U.S.C. § 207(a)(1).
The court has considered the parties' arguments and authorities. First, the court is in agreement with the DuFrene case and its cited authorities, determining that although application of the formula set forth in 29 C.F.R. § 778.112 decreases the regular rate as the hours worked in a week increases, it does not violate the FLSA. DuFrene, 207 F.3d at 268. Further, as defendant contends, plaintiff has provided no authority for his position that the payment of special pay precludes the use of the DOL day rate formula provided for in § 778.112. Specifically, although the court did not make this determination at the time of the first motion for summary judgment filed by defendants in this matter, the court now finds that it has not been persuaded by plaintiff that special or extra pay is another "form of compensation for services" such that plaintiff should not have been paid pursuant to the formula set out in § 778.112. The court is persuaded by the reasoning in DuFrene performing a Chevron analysis and determining that deference is due to a permissible interpretation of the FLSA by the Department of Labor. Id. The court notes that the Opinion Letter FLSA-953 provided by defendant, although dated 1967, has not been controverted by the plaintiff, and finds that the special/extra pay in the instant matter is analogous to the $2.00 per hour for extra trips paid to bus drivers in that matter. Finally, the court is in agreement with defendant that the subtraction of a lunch period from a day's time does not preclude application of a day rate payment method, and notes that plaintiff has offered no authority in support of its argument otherwise. Summary judgment will also enter for defendant as to this claim.
Retaliatory discharge claim
Under § 215(a)(3) of the FLSA, it is a violation
to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.
Plaintiff asserts that his employment with BFI was terminated in retaliation for filing or pursuing the instant matter against defendant. This is disputed by defendant. In essence, defendant's argument for summary judgment on this claim is that there is no question of material fact concerning plaintiff's falsification of documents and that there is no dispute over the company's zero tolerance policy for such falsification. Plaintiff does not dispute defendant's assertion that BFI has a policy instructing its employees to fill in one-half hour for lunch every day on their time sheets. The reason given for plaintiff's termination was his acknowledgment at his deposition that if in fact he did not take a lunch on a given day, but filled out his time sheet in the manner instructed (i.e. indicate a lunch period), that the time sheet might not be accurate. Plaintiff's termination was only two weeks after this deposition testimony was given.
Plaintiff's argument in response is that the timing of the termination, the instruction to complete the documents in the way plaintiff completed them, an antagonistic history with the company, and the obvious chilling effect the termination had on other employees clearly reflects that the reason given for the termination was pretextual. Plaintiff contends that there are genuine issues of material fact concerning the employer's motivation for firing plaintiff.
The reported history of plaintiff and BFI includes plaintiff's reporting of BFI for alleged violations of the Motor Carrier Safety Act of 1963, pursuant to which BFI pled no contest to 30 different counts of violations of the Act. Sexton was also the leader in organizing the Teamsters Local Union No. 247 at defendant's location, prior to which the employer was non-union. Sexton has also made complaints to MIOSHA concerning his former employer, and finally filed the instant complaint under the FLSA.
The court has considered plaintiff's arguments in response to defendant's motion, and cannot find any question of material fact which must be submitted to a jury on this claim. Plaintiff has not produced evidence that his termination was not for the reasons stated by defendant. In fact, as defendant argued, the plaintiff's antagonistic history with the company had not inspired defendant to terminate plaintiff's employment at any point prior to the plaintiff's deposition. Further, regardless of whether or to what extent Michigan regulations dictate the recording of breaks for drivers, it is not disputed that the defendant had a policy against the falsifying of records, and that plaintiff's testimony demonstrated that he had done so. Finally, as defendant argued, plaintiff's termination was found by an arbitrator to be for just cause. The court is persuaded that summary judgment should be entered for the defendant on this claim as well.
the defendant did not argue concerning the preclusive effect this determination might have on the court, the court will not perform such an analysis.
CONCLUSION
For the foregoing reasons, the court hereby GRANTS defendants' motions for summary judgment as to all counts in plaintiff's complaint.
IT IS SO ORDERED.