Opinion
Case No. 1:02-CV-00132 PGC.
July 30, 2004
ORDER
This employment dispute is before the court on a motion by defendant Housing Authority of the City of Ogden for summary judgment and on related procedural motions. The Housing Authority claims it is not obligated to pay plaintiff Perry Martinez for hours he was "on-call" but not actually working. The court agrees and GRANTS the motion for summary judgment. The court also DENIES two related motions to strike pleadings and GRANTS IN PART another motion to strike affidavits.
BACKGROUND
In a summary judgment motion, the facts are viewed in the light most favorable to the non-moving party. Plaintiff Perry D. Martinez was employed by the defendant Housing Authority from 1991 until December 15, 2000. Mr. Martinez did general maintenance, which included on-call hours that exceeded a regular forty-hour week. On December 15, 2000, Mr. Martinez met with Carolyn McComb, the interim Executive Director of the Housing Authority, and his employment was terminated.
See Committee for First Amendment v. Campbell, 962 F.2d 1517, 1521 (10th Cir. 1992).
Some of the circumstances surrounding his dismissal are unclear. Mr. Martinez contends he sent a letter to Ms. McComb on or around December 10, 2000, demanding back pay in the amount of $190,000. The basis for this significant demand was his claim that he had not been paid for overtime "on-call" hours that he worked since 1994. He cites the employee policy and procedures manual, which states a minimum of 16 hours of overtime will be paid for on-call work per pay period. Mr. Martinez had never been written up or disciplined prior to his firing, and he claims this letter led the Housing Authority to terminate his employment on December 15, 2000.
The Housing authority responds that the policy and procedures manual is only a guideline and that Mr. Martinez signed a form stating that the manual was not a contract. They further claim that they never paid a minimum 16 hours to anyone until right before Mr. Martinez was fired and that he was never assigned to work the on-call shift after they had begun that practice. Ms. McComb claims that she did not receive the letter until after she had fired him for the poor quality of his work and other work related problems.
Mr. Martinez filed his initial complaint in federal court on October 11, 2002. In that complaint he sought recovery for the back pay under several theories. The Housing Authority filed the pending motion for summary judgment on March 3, 2004, and in the ensuing months, both sides filled additional motions to strike different pleadings and affidavits.
ANALYSIS
I. Motions to Strike PleadingsBoth Mr. Martinez and the Housing Authority have filed motions to strike pleadings based on procedural grounds. Both motions are DENIED.
Mr. Martinez seeks to strike the Housing Authority's reply memorandum as an improperly filed, over-length memorandum. To be sure, a reply memorandum should not exceed ten pages without leave of the court. However, the Housing Authority subsequently filed a motion for leave to file an over-length memo, which was granted. Thus, Mr. Martinez's motion is DENIED.
See DUCivR7.1(b)(3).
The Housing Authority has also moved to strike a pleading. Specifically, the Housing Authority has moved to strike Mr. Martinez's response to its reply memorandum because a response memorandum to a reply memorandum is not allowed without leave of the court. This argument is noted, but Mr. Martinez's reply will be allowed. The Housing Authority's motion is DENIED.
See id.; DUCivR56-1(b).
II. Motion to Strike Affidavits
In addition to these procedural motions, the Housing Authority moves to strike affidavits of Perry D. Martinez and Clorinda Cordova. Because the motion really challenges only specific statements, it is not necessary to strike the affidavits in their entirety, and the court GRANTS IN PART this motion. The basis for striking specific portions will be discussed as pertinent to the summary judgment motion. III. Motion for Summary Judgment
The central issue before the court is the Housing Authority's motion for summary judgment. The Housing Authority claims summary judgment should be granted because there is no issue of material fact in this case on any of Mr. Martinez's five claims. First, it claims it fully paid Mr. Martinez for his work under the Fair Labor Standards Act ("FLSA"). Second, the Housing Authority claims it did not breach Mr. Martinez's contract because the policies and procedures he relies on were only guidelines and never a contract. Third, the Housing Authority claims there is no breach of custom because it did not customarily pay on-call employees until after Mr. Martinez stopped working on-call shifts. Fourth, it claims it did not violate public policy because Mr. Martinez cannot point to a specific policy breached. Finally, the Housing Authority claims that Mr. Martinez failed to establish the elements of his retaliation claim. Each claim will be addressed in turn.
See 29 USC § 207.
A. Breach of the FLSA
The Housing Authority's first claim is that Mr. Martinez was properly compensated under the FLSA. The court agrees.
The FLSA states that work outside normal working hours should be compensated by no less than one and one-half the normal pay rate for "[a]n employee who is required to remain on call on the employer's premise or so close thereto that he cannot use the time effectively for his own purposes is working while on call." Conversely, the FLSA states that "[a]n employee who is not required to remain on the employer's premise but is merely required to leave word as his home or with company officials where he may be reached is not working while on call" and does not have to be compensated.
Id.
Id.
In short, this claim turns on how restricted Mr. Martinez was when he was on call. The undisputed facts show he was not so restricted that he was "working while on call," and summary judgment is proper on this claim. At several points in his deposition, Mr. Martinez acknowledges that his travel was not restricted and that he could use the time for his own purposes. For example, he admitted in his deposition that he could leave work and even went on vacation to Bear Lake while on call. These statements by themselves establish that Mr. Martinez was not "working while on call" and, thus, not entitled to compensation for his on call hours under the FLSA.
See Def.'s Mot. to Strike Aff. of Perry D. Martinez and Clorinda Cordova (# 24-1), Ex. A, Dep. of Perry David Martinez, 87-88, 95-96.
Mr. Martinez argues that these facts are disputed by his and Clorinda Cordova's affidavits. These affiants declare: "While performing on-call duty, I was not free to pursue personal activities of my choice. I was constantly called to perform numerous job-related duties. I was required to carry a cellular phone and to stay within a ten mile radius." Mr. Martinez also tries to show he was unduly restricted while on call by the fact that he was the primary responder to after-hours problems. Mr. Martinez states in his affidavit that "other maintenance workers . . . were not qualified to handle the type of work that I performed. Further . . . none were required to carry a cellular phone, as had been required of me." However, this affidavit conflicts with his prior sworn deposition statement that he had "discretion as a supervisor to, if it was something somebody else could handle, to call them and tell them to go do it." Further, when asked if co-worker, Mike Gallegos, was ever called out on emergency calls by the Housing Authority, Mr. Martinez answered, "they did."
Pl.'s Mem in Opp'n to Def.'s Mot. for Summ. J. (# 19-1), Ex. A, Aff. of Perry Martinez ¶ 7; see also id. at Ex. E, Aff. of Clorinda Cordova ¶ 6.
Id. at Exhibit A, Affidavit of Martinez ¶ 10.
Def.'s Mot. to Strike Aff. of Perry D. Martinez and Clorinda Cordova (# 24-1), Ex. A, Dep. of Perry David Martinez, pg. 86 lines 8-11.
Id. at 84 line 22.
As noted above, the Housing Authority has moved to strike Mr. Martinez and Ms. Cordova's affidavits. In the case of Mr. Martinez, the Housing Authority moves to strike the affidavit as creating a sham issue of fact. The Tenth Circuit has stated that although an affidavit generally "may not be disregarded [simply] because it conflicts with the affiant's prior sworn statement," such affidavits will not be allowed when they "attempt to create a sham fact issue." When determining if a sham fact issue has been created, the court looks to three factors: (1) whether the affiant was cross examined during his earlier testimony; (2) whether the affiant had access to evidence at the earlier testimony or is based on new evidence; and (3) whether the affidavit is attempting to explain earlier confusion. Although the prior sworn statements were made in a deposition rather than a formal court proceeding, counsel was present at the deposition. The critical factors here are that no new evidence has come to light that would explain the change in testimony and that Mr. Martinez's affidavit does not point to any confusion in the earlier deposition. To the contrary, the deposition testimony is quite clear about what Mr. Martinez was allowed to do. The court can only conclude that Mr. Martinez has submitted this affidavit to create an issue of fact where none existed before, so these statements are stricken.
Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir. 1986).
See id. at 1237.
Likewise, Ms. Cordova's statements is stricken. She makes essentially the same assertions as Mr. Martinez. However, nowhere does she lay the necessary foundation that she has personal knowledge of the events she describes — particularly as they bear on Mr. Martinez's situation. For statements to be admissible in opposition to a summary judgment motion, the declarent must have personal knowledge of the matter described. The plaintiff has the burden of laying that foundation, which he has not done. Accordingly, Ms. Cordova's statements must also be stricken.
See Tavery v. U.S., 32 F.3d 1423, 1427 (10th Cir. 1994).
See Fed.R.Civ.P.56(e).
Based on the admissible evidence, the court concludes that Mr. Martinez was not "working while on call" and is not entitled to compensation under the FLSA for time spent on call.
Before leaving this issue, the court notes that much of Mr. Martinez's affidavit goes to show that he was called in more frequently than his coworkers. This evidence is not relevant to the FLSA claim, which turns on how restricted he was when he was "on call" but not working. He admits that whenever he got calls he was on the clock and could have reported his time responding to requests. The fact that he chose not to report that time is not relevant to establishing the restrictiveness of his "on call" hours. B. Breach of Contract
The Housing Authority next claims that failure to pay Mr. Martinez for on-call time is not a breach of an implied contract. The court agrees.
Under Utah law the existence of an implied contract is a question of fact for the jury to decide, but on a summary judgment motion, the court will determine if a reasonable jury could find a contract exists. Although employee handbooks can create implied contracts, "[t]he alleged agreement must be read as a whole, so that any agreement terms are read in light of all disclaimers."
See Ingels v. Thiokol Corp., 42 F.3d 616, 624 (10th Cir. 1994).
See Hodgson v. Bunzel Utah, Inc., 844 P.2d 331, 334 (Utah 1992).
Ingels, 42 F.3d at 624.
Mr. Martinez claims that, according to the policies and procedures manual, he should have been paid for a minimum of 16 hours overtime for each pay period. However, it is undisputed that Mr. Martinez was an at-will employee and that he signed a document stating the manual was only a guide and not binding. It does not matter that Mr. Martinez is a lay person and may have misunderstood the significance of the language of the manual. The manual contained clear disclaimers stating that it was not a contract, and Mr. Martinez signed a document to that effect. Thus, summary judgment is GRANTED on this claim.
C. Breach of Custom
The Housing Authority next claims that it was not customary to pay on-call workers for 16 hours of overtime work per pay period. The court agrees.
Under the FLSA, on-call work should be compensated if it is "a custom or practice" to do so "at the time of such activity." Based on the undisputed facts, it was not the custom of the Housing Authority to pay on-call workers during Mr. Martinez's on-call time. While there is evidence that the Housing Authority started paying on-call workers near the end of Mr. Martinez's employment in late November 2000, between late November and December 15, 2000, Mr. Martinez was never assigned to on-call work. Thus, summary judgment is GRANTED on this claim.
D. Breach of public Policy
The Housing Authority next claims that it did not violate public policy in not paying for on-call time. The court agrees with the Housing Authority's position.
In Utah, a clear and substantial public policy can offset the at-will employment rule if the policy is defined by legislative enactments, constitutional standards, or judicial decisions. Mr. Martinez points to none of these to justify his claim. Instead, Mr. Martinez simply claims that public policy requires an employer to pay its employees and that he was forced to work without pay. Because Mr. Martinez's reasoning is tenuous at best, and because he does not point to any specific legislative enactments, constitutional standards, or judicial decisions for a public policy justification, summary judgment on this claim is GRANTED. E. Retaliation Claim
See Berube v. Fashion Centre, LTD., 771 P.2d 1033, 1043 (Utah 1989).
The Housing Authority's last claim is that Mr. Martinez was not terminated in retaliation for raising FLSA issues. The court agrees because Mr. Martinez has not established that his letter raising pay issues prompted his dismissal.
The FLSA applies a shifting burden of proof to retaliation claims. First, the plaintiff must make a prima facie case of retaliation, which requires a showing of three things:
See Conner v. Schnuck Markets, Inc., 121 F.3d 1390, 1394 (10th Cir. 1997).
(1) that he or she engaged in activity protected by the FLSA; (2) he or she suffered adverse action by the employer subsequent to or contemporaneous with such employee activity; and (3) a causal connection existed between the employee's activity and the employer's adverse action.
Id.
If the plaintiff makes a prima facie case, the burden shifts to the employer to give a reason for the termination. If the employer had a valid reason, the burden then shifts again to the plaintiff to show there is a genuine dispute of material fact as to the reasons given by the employer.
Id.
Id.
Whether this claim is valid depends on three issues: first, whether the letter is a protected activity under the FLSA; second, whether the letter pre-dated the firing; and third, whether Mr. Martinez was fired for another reason.
First, the FLSA protects three activities: filing a complaint, instituting or causing a proceeding under the FLSA, and testifying or planning to testify in such a proceeding. The Housing Authority claims that in this case, Mr. Martinez's retaliation claim should fail because all he did was send a letter asking for more money, which is not protected activity under the FLSA. Mr. Martinez claims that by sending a letter he was filing a complaint. The text of the FLSA protects "any complaint" filed by the employee. Viewing the facts in the light most favorable to Mr. Martinez, the court finds sending the letter is a protected activity.
See 29 USC § 215(a)(3).
Id.
The Housing Authority next argues that the letter could not have been the basis for Mr. Martinez's termination because Ms. McComb did not have knowledge of the letter until after the firing. Her testimony is that on the morning of December 15, 2000, she terminated Mr. Martinez's employment and then left the office for a time. When she returned, she found the letter dated December 10, 2000, on her desk. She figured it had arrived on her desk sometime after 12:00 noon and date stamped it December 15. The Housing Authority uses this to show that he was not fired in retaliation for the letter because it was not receive until after the firing.
The only challenge to this account comes from the Martinez and Cordova affidavits, which declare that Mr. Martinez actually delivered the letter "on or before" December 10. However, these statements should be stricken for the same reasons as the sections stricken above. In the case of Mr. Martinez, the statement is in direct conflict with his deposition testimony, which counsel developed at some length, that he did not remember how or to whom the letter was delivered. Mr. Martinez does not offer any new evidence, nor does he claim any prior confusion. As with the earlier statements, these statements in the affidavit are mere sham attempts to create disputed issues of facts. In addition, Ms. Cordova's statements are inadmissible because they lack the foundation that she had personal knowledge of when the letter was delivered by Mr. Martinez to Ms. McComb.
See Def.'s Mot. to strike Aff. of Perry D. Martinez and Clorinda Cordova (# 24-1), Ex. A, Dep. of Perry David Martinez, pg. 69 lines 14-24.
Moreover, even if these statements were admissible, they offer no basis to refute Ms. McComb's account of the sequence of events. Even if Mr. Martinez had delivered the letter to her office on December 10, he has offered no evidence that she saw the letter before their meeting on December 15. Mr. Martinez has offered no reason or evidence to discredit the account of Ms. McComb. Without reason to discount her testimony, the court must accept her declarations. Mr. Martinez does not allege that anyone other than Ms. McComb made the decision to fire him. Thus, even if the court were to consider the testimony in the affidavits, it would reach the same conclusion on this claim. Accordingly, Mr. Martinez cannot establish that he was fired subsequent to a protected activity, and summary judgment is GRANTED on this claim. Because this issue is dispositive, the court need not consider whether the Housing Authority's stated reason for firing Mr. Martinez (poor work ethic) was pretextual.
CONCLUSION
Accordingly, Mr. Martinez's motion to dismiss defendant's reply memorandum (#31-1) is DENIED. Likewise, the Housing Authority's motion to strike plaintiff's response to defendant's reply memorandum (#34-1) is DENIED. The Housing Authority's motion to strike affidavits (#23-1) is GRANTED IN PART, and its motion for summary judgment (#14-1) is GRANTED.
The clerk is directed to close this case.
SO ORDERED.