JOHN HENRY v. WELLS REMODELING, LLC, et al.
Case No.: 2:16-cv-00511-SGC
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION
January 9, 2019
John Henry commenced this action against Wells Remodeling, LLC, and Andrew Wells, alleging violations of the Fair Labor Standards Act,
I. Facts2
Wells Remodeling, LLC, d/b/a Alabama ReBath (“Alabama ReBath“) provides bathroom remodeling services to residential customers. (Doc. 44-7 at 1). Andrew Wells (“Wells“) is the president of Alabama ReBath. (Id.). Sometime
Henry started his work days at the Alabama ReBath office. On his arrival, Henry typically would unload demolition debris from his company van and load materials required for that day‘s job. (Doc. 44-1 at 7-8; Doc. 44-3 at 21-22; Doc. 46-1 at 1).4 Alabama ReBath did not pay Henry for the actual amount of time he spent performing these tasks (Doc. 44-7 at 2-3), and that time is not explicitly recorded on Henry‘s time sheets or pay sheets (see, e.g., Doc. 44-5 at 42, 62). The defendants claim that based on Wells’ determination an installer could routinely unload demolition debris and load job materials in 15-30 minutes and that these tasks should rarely take more than 45 minutes to complete, Alabama ReBath paid installers for 45 minutes of “load/unload time” for each phase of a job. (Doc. 44-7 at 2-3). Wells testified that for Henry, this translated to $15. (Id. at 3).5 Henry testified it typically took between 45 minutes and one hour to unload debris and load job materials and that it might have taken more than one-and-one-half hours to perform these tasks on some days. (Doc. 46-1 at 1; Doc. 46-1 at 1).
After unloading demolition debris and loading job materials, Henry departed the Alabama ReBath office for the job site in his company van. (Doc. 46-1 at 1). In addition to job materials, Henry carried personal and company tools in the van. (Doc. 44-7 at 5). Henry claims he was not always paid for travel time from the Alabama ReBath office to the job site. (Doc. 46-1 at 1). He further claims that when was paid for this time, his compensation was based on an estimate derived from Google Maps, not his actual travel time, which was greater than the estimated
Henry typically returned his company van to the Alabama ReBath office at the end of the day. (Doc. 44-1 at 20). The defendants did not compensate Henry at all for return travel time. (Doc. 44-7 at 3). Henry testified the defendants required him to return his company van to the Alabama ReBath office at the end of the day. (Doc. 44-1 at 20; Doc. 46-1 at 2). Wells testified Henry could drive the van home at the end of the day if his home was closer to the job site than the Alabama ReBath office. (Doc. 44-7 at 5). David Wilkinson, who was employed by Alabama ReBath in a supervisory role, testified Henry could drive his company van home at the end of the day on occasion if the job site was close to his home, but that otherwise he had to bring the van back to the Alabama ReBath office. (Doc. 44-6 at 16; Doc. 44-10 at 17). Henry acknowledged he sought and received permission to drive the van home on two or three occasions. (Doc. 44-1 at 11; Doc. 46-1 at 2). For some period of time in early-to-mid September 2015, Henry did not work while his company van was in the shop for repairs. (Doc. 44-8 at 122-28).
Beginning on September 1, 2015, Alabama ReBath paid Henry on a commission, rather than an hourly basis. (Doc. 44-7 at 4). Henry claims he never wanted to be paid on commission, which resulted in a smaller rate of pay than his hourly rate. (Doc. 44-1 at 10-11; Doc. 46-1 at 3; Doc. 47 at 10). According to Henry, he was transitioned to commission-based pay in retaliation for his complaints regarding his compensation for load/unload time and travel time. (Doc. 46-1 at 2-3; Doc. 47 at 23). In support of their first motion for summary judgment, the defendants calculated Henry‘s rate of pay for each of the six weeks he was compensated on a commission by dividing his hours for each week into his compensation for each week. (Doc. 36 at 10). In all but two of those weeks,
Wells terminated Henry on October 26, 2015. (Doc. 44-3 at 52; Doc. 44-7 at 2). Wells did not give Henry a reason for his termination. (Doc. 44-1 at 16; Doc. 44-3 at 54). Henry testified he did not ask for one. (Doc. 44-1 at 16). Wilkinson testified Wells did not have any conversation with him about why Henry was no longer working for Alabama ReBath. (Doc. 44-10 at 20, 28).
Henry claims Wells terminated him because he continued to complain about his compensation for load/unload time and travel time and about his transition to commission-based pay. (Doc. 44-1 at 23; Doc. 46-1 at 3). Wells denied he terminated Henry because of any complaints Henry made regarding pay. (Doc. 44-3 at 55). He testified he terminated Henry because (1) Henry failed to communicate with him and other Alabama ReBath employees for purposes of scheduling, (2) there were frequent problems with Henry‘s jobs, for which Henry refused to take responsibility, (3) Henry rebuffed Wells’ efforts to help him learn how to do his job more effectively and efficiently, and (4) Henry generally had a poor attitude. (Id. at 52-55).
Henry testified neither Wells nor Wilkinson ever discussed with him issues regarding communication, timely completion of jobs, scheduling, job performance, or attitude. (Doc. 44-1 at 11-12; Doc. 46-1 at 3). He notes that during a meeting to discuss his transition to commission-based pay, he told Wells there were no complaints regarding his jobs and that his jobs were perfect. (Doc. 46-1 at 2). Wells responded by mentioning a customer complaint but noting he was not trying to blame Henry for the complaint, which he suspected had something to do with “corporate.” (Id.).
Wells: and what about monday‘s schedule? and why couldn‘t you discuss this earlier? this is why we struggle with scheduling and why we don‘t schedule ahead. i can‘t have surprises. monday expects you to be there around 8. so how do we do both? i tend to be okay with a lot of things as long as they are not surprises because i can‘t plan around surprises. so i would like to know your plan for Monday being you have to be at two places at once. how do we reconcile this?
Henry: Monday is not a problem as Gloria is aware I am coming first thing to have that signed and I will call the customer and make them aware of when I will be arriving. I will take care of my end and I understand how frustrating that can be to you worrying about it . . . .
. . .
Wells: i think you very well understand how unforeseen items can cause a schedule delay . . . right? . . . i‘ve cleared out most of our issues, but right now what‘s left is and seems to still be is communication[.]
. . .
Wells: so the next thing to address is communication. you have to communicate items like this with me or us. if there was an issue with gloria, it would‘ve been nice to know wednesday or as soon as you know so we can address it together[.]
(Doc. 44-9 at 3-4). On Friday, October 16, 2015, after Henry told Wells he would be available for another job on the following Tuesday, the following exchange ensued:
Wells: ugh. we already scheduled you monday[.] why would you say this on friday[.] last week you told us you were good for monday[.] i mean this week on wed[.]
Henry: I‘m in the bathroom.
Wells: are you joking or serious. i need to know what to do as it‘s already scheduled and unsure if i now have to unscheduled this[.]
Henry: Is Tuesday out of the question?
Wells: well we just booked him. so yes. otherwise we keep doing the very thing we have been trying so hard to avoid. the whole point of not scheduling ahead unless you say something was to keep us from rescheduling. it takes a lot of time chasing them around all the time. and the uncertainty of the rest of the week makes it difficult to schedule anything else[.] now that you finally told us ahead like we asked, we did what we said which is we scheduled ahead. now you‘re asking us to undo this[.]
. . .
Wells: what would solve my problem in scheduling is communication, in a nut shell[.] you communicate, we schedule. you become predictable, we schedule without having to communicate[.] . . . help me with communication. i don‘t know how to fix this but i‘m doing the best i can[.]
(Id. at 8-10). Text messages from Wells to Henry in October 2015 also show Wells believed there to be problems with the quality of Henry‘s work and that Henry denied responsibility for the alleged problems. On October 26, 2015, the day of Henry‘s termination, Wells and Henry exchanged text messages regarding one customer‘s squeaky floor and another‘s plumbing problem:
Henry: . . . . [the customer‘s floor] did not squeak until a month or so later. Was not squeaking directly after install. This problem had nothing to do with my install. . . .”
Wells: she called it in the day or two later. we were out there twice before i had sent you guys on friday[.] we‘ve been dealing with it since. you just didn‘t know about it until about a month later[.]”
. . .
Wells: bottom line . . . it should‘ve been taken care of and it‘s easy to say it didn‘t squeak then (except it actually did). for it to happen exactly right after we were working in there is too much of a coincidence[.]
. . .
Wells: . . . . Abbot has called back and she‘s getting back flow of water filling up her sink. it seems possible you may have had trash in the sink that clogged it up as it didn‘t happen before we did her job.
Henry: Abbot‘s problem is in the wall no possible way trash could get in that area.
(Doc. 44-9 at 19-20).
II. Procedural History
In their first motion for summary judgment, the defendants sought dismissal of Henry‘s claims for unpaid wages and overtime for the period September 1, 2015, to October 26, 2015, during which the defendants paid Henry on a commission basis, on the grounds those claims were subject to the “retail or service establishment” exemption codified at
III. Standard of Review
Under
IV. Discussion
The defendants seek summary judgment on Henry‘s claims for load/unload time and travel time from the Alabama ReBath office to the job site on the ground Henry‘s pay sheets show he was compensated for that time. (Doc. 51 at 21-23). They claim the Portal-to-Portal Act, which amended the FLSA, excepts Alabama ReBath from compensating Henry for return travel time. (Id. at 24-26). Finally, they claim Henry has failed to make out a prima facie case of retaliation and that they have articulated legitimate, non-retaliatory reasons for Henry‘s termination that Henry cannot rebut as pretext. (Id. at 27-32).
In his interrogatory responses, Henry identified a number of days as to which the job start time recorded on his time sheet was earlier than the job start time recorded on his pay sheet. (Doc. 44-2 at 10-11). He claimed he did not receive compensation for the difference, totaling 42 hours, which represented time he spent unloading demolition debris and loading job materials. (Id.). The defendants claim Henry has simply misunderstood how to read his pay sheets, which recorded load/unload time and travel time separately from time spent on the job site. (Doc. 51 at 21). According to the defendants, their records show Henry was not yet employed by Alabama ReBath on days as to which he claims a total of 6.5 hours owed and that he was paid for a total of 34.66 hours of load/unload time and travel time on the remaining days. (Id. at 21-23).9 The defendants’ calculation is based on an allotment of 45 minutes of load/unload time to Henry, irrespective of the actual time Henry spent unloading demolition debris and loading job materials. (See id.). For purposes of the defendants’ motion, the dispositive
While the FLSA does not require an employer to compensate an employee on an hourly basis but, rather, permits an employer to compensate an employee on a piece-rate, salary, commission, or other basis, an employer cannot necessarily pay an employee on one of these alternative bases without consideration of the hours actually worked by the employee.
As the movants, the defendants bear the burden of demonstrating their entitlement to summary judgment – that there are no genuine issues of material fact regarding Henry‘s compensation for load/unload time or whether this compensation complied with the FLSA‘s minimum wage and overtime requirements. Specifically, that means (1) calculating a regular rate of pay for each week Henry worked, based on his hourly compensation, flat-rate compensation for
Although the burden is the defendants, in the interest of an efficient resolution of the parties’ dispute and because, ultimately, liability under the FLSA is a question of law, Birdwell v. City of Gadsden, 970 F.2d 802, 808 (11th Cir. 1992) (“It is for the court to determine if a set of facts gives rise to liability [under the FLSA]; it is for the jury to determine if those facts exist.“), the undersigned has scrutinized the evidence submitted by both parties and attempted to identify undisputed facts from which it could be determined whether Henry‘s compensation for load/unload time was FLSA-compliant. The answer to the question turns on
First, while Wells testified Henry was paid $15 for load/unload time (Doc. 44-7 at 3) and Henry‘s pay sheets for May and June 2015 indicate the same (Doc. 44-5 at 62-66), Henry‘s pay sheets for July and August 2015 indicate he was paid $11.25 for that time (id. at 67-76). At least with respect to July and August 2015, determination of which rate is accurate – the rate Wells testified Henry was paid for load/unload time or the rate recorded on Henry‘s pay sheets as paid for that time – is necessary to determine Henry‘s regular rate of pay.
Second, even assuming Henry spent no more than 45 minutes unloading demolition debris and loading job materials and was compensated $15 for that time, there is some question whether that compensation complied with the FLSA‘s overtime requirements. Henry‘s pay sheets appear to calculate straight time and overtime based solely on time spent on the job site, with load/unload time added on
For the foregoing reasons, the defendants’ motion for summary judgment on Henry‘s claims for load/unload time and travel time to the job site are due to be denied.
B. Return Travel Time
Under the Portal-to-Portal Act, which amended the FLSA, an employer is not required to pay an employee for (1) “traveling to and from the actual place of performance of the principal activity or activities which [the] employee is employed to perform” or (2) “activities which are preliminary to or postliminary to [the employee‘s] principal activity or activities.”
The term “principal activities” includes all activities that are an “integral and indispensable part of the principal activities.” IBP, Inc. v. Alvarez, 546 U.S. 21, 30 (2005) (quoting Steiner v. Mitchell, 350 U.S. 247, 256 (1956)). Therefore, while ordinary home-to-work and work-to-home travel is not compensable, travel that is an integral and indispensable part of an employee‘s principal activities is compensable. See Llorca v. Sheriff, Collier Cty., Florida, 893 F.3d 1319, 1324 (11th Cir. 2018) (holding that in the Eleventh Circuit, “commuting time and other preliminary and postliminary activities are compensable only if they are both an
In Integrity Staffing, the United States Supreme Court emphasized the integral-and-indispensable test is tied to the productive work an employee is employed to perform and held that the United States Court of Appeals for the Ninth Circuit had erred in focusing on whether an employer required a particular activity. Id. at 519. According to the defendants, this calls into doubt the decision of the United States Court of Appeals for the Eleventh Circuit in Burton v. Hillsborough Cty., Florida, 181 F. App‘x 829 (11th Cir. 2006), on which Henry relies to support his claim the defendants were required to pay him for return travel time because they mandated he leave his company van at the Alabama ReBath office at the end of the day. (Doc. 52 at 9 n.37). In that case, the circuit court held that “if an employee driving an employer-owned car is required to return to the employer‘s premises after a day‘s work prior to returning home, that time is compensable under the FLSA.” Id. at 835 (emphasis in original). Although the
In Meeks v. Pasco Cty. Sheriff, 688 F. App‘x 714, 716 (11th Cir. 2017), a deputy sheriff sought overtime compensation for time spent transporting his patrol car between a sheriff‘s patrol division office and his patrol zone. The deputy sheriff was not allowed to store the car at home but, rather, was required to store it at a sheriff‘s patrol division office because he lived more than fifteen miles outside the county. Id. Citing Integrity Staffing, the Eleventh Circuit held that the travel time was an integral and indispensable part of the deputy sheriff‘s principal activities – his patrol duties – because he relied on the patrol car to maintain contact with the sheriff and respond to calls assigned by the sheriff and could not have patrolled his zone without it. Id. at 717. In other words, although the requirement that the deputy sheriff store his patrol car at a designated location may not have been sufficient to render the time spent transporting it between that
The regulations promulgated by the Department of Labor to implement the FLSA lend support to the conclusion an employer‘s requirement may render travel time compensable. See
Here, evidence Henry carried job materials and personal and company tools in his company van (Doc. 44-7 at 5) and was not able to work for some period of time in early-to-mid September 2015 while the van was in the shop for repairs (Doc. 44-8 at 122-28) suggests Henry relied on the van to transport materials to and from the job site and could not have performed his principal activity – installing bathrooms – without it. Moreover, there is conflicting testimony as to whether the defendants required Henry to return his company van to the Alabama ReBath office at the end of the day. (Doc. 44-1 at 20; Doc. 44-6 at 16; Doc. 44-7
C. Retaliation
The FLSA protects an employee against retaliation for asserting his rights under the statute. See
Henry claims that in retaliation for his continued complaints regarding his compensation, the defendants first eliminated compensation for all load/unload time, then transitioned him to commission-based pay, and finally terminated his employment. (Doc. 44-1 at 10-11, 21, 23; Doc. 46-1 at 2-3; Doc. 47 at 23). The defendants argue Henry‘s complaints did not rise to the level of activity protected by the FLSA; the acts, other than termination, of which Henry complains are not adverse for purposes of maintaining an FLSA retaliation claim;12 Henry cannot demonstrate a causal connection between his complaints and his termination; and they have articulated legitimate, non-retaliatory reasons for Henry‘s termination that Henry cannot rebut as pretext. (Doc. 51 at 26-32).
1. Elimination of Compensation for Load/Unload Time
Henry is not specific as to when he claims the defendants eliminated compensation for all load/unload time. To the extent he claims the defendants took this action prior to September 1, 2015, his pay sheets refute the claim. Henry‘s pay sheets for the weeks leading up to September 1, 2015, show Henry was paid for
2. Transition to Commission Compensation
Henry claims his transition to commission-based pay was adverse because he never wanted to be paid on commission and his commission-based rate of pay was smaller than his hourly rate. (Doc. 44-1 at 10-11; Doc. 46-1 at 3; 47 at 10). “[N]ot everything that makes an employee unhappy is an actionable adverse employment action.” Bass v. Bd. of Cty. Comm‘rs, Orange County, Florida, 256 F.3d 1095, 1118 (11th Cir. 2001) (internal quotation marks omitted), overruled in part on other grounds by Crawford v. Carroll, 529 F.3d 961 (11th Cir. 2008). To be adverse, conduct falling short of termination, failure to hire, or demotion “‘must, in some substantial way, alter the employee‘s compensation, terms, conditions, or privileges of employment, deprive him or her of employment opportunities, or adversely affect his or her status as an employee.‘” Blue v. Dunn Const. Co., 453 F. App‘x 881, 884 (11th Cir. 2011) (quoting Crawford, 529 F.3d at 970). In other words, the mere fact Henry did not want to be paid on commission
3. Termination
The defendants do not argue, and it is beyond dispute, termination is an adverse action for purposes of maintaining an FLSA retaliation claim. See Blue, 453 F. App‘x at 884 (identifying termination as adverse employment action). However, this aspect of Henry‘s FLSA retaliation claim fails, as well, because the defendants have articulated legitimate, non-retaliatory reasons for Henry‘s termination that Henry has failed to rebut as pretext.
To demonstrate pretext, a plaintiff “must produce sufficient evidence for a reasonable fact finder to conclude that a retaliatory reason for the adverse
Henry first argues the defendants’ proffered reasons for his termination are pretext because the defendants never discussed with him problems with communication, scheduling, job performance, or attitude before dismissing him. (Doc. 47 at 23-26). If true, this might create an inference of pretext. See Stanfield v. Answering Serv., Inc., 867 F.2d 1290, 1294 (11th Cir. 1989) (holding that lack of complaints or disciplinary reports in employee‘s personnel file could support finding of pretext); but see Wascura v. City of South Miami, 257 F.3d 1238, 1245-46 (11th Cir. 2001) (discounting lack of such evidence where there was no formal review process for employee). However, text messages exchanged between Wells and Henry refute Henry‘s claim the defendants did not discuss communication, scheduling, and job performance issues with him. (Doc. 44-9 at 3-4, 8-10). Henry
Henry next argues the defendants’ proffered reasons for his termination are pretext because he was not disciplined in accordance with Alabama ReBath‘s progressive discipline policy. (Doc. 47 at 26-27). An employer‘s departure from normal procedures may evidence pretext. See Bass, 256 F.3d at 1108 (“An employer‘s violation of its own normal hiring procedure may be evidence of pretext.“); Hurlbert v. St. Mary‘s Health Care Sys., Inc., 439 F.3d 1286, 1299 (11th Cir. 2006) (holding that employer‘s issuance of separation notice twelve days after employee‘s termination, when usual practice was to prepare separation notice
Finally, Henry argues the defendants’ proffered reasons for his termination are pretext because they did not give him a reason for his termination at the time of his dismissal. (Doc. 47 at 27-28). Henry cites Mock v. Bell Helicopter Textron, Inc., 196 F. App‘x 773 (11th Cir. 2006), in support of this argument. (Doc. 47 at 27). In that case, the Eleventh Circuit held that a triable issue of fact existed as to whether an employer‘s proffered reason for terminating an employee was pretext where the employee insisted the employer give him its reason for terminating him at the time of termination and the employer refused to do so, only articulating a reason (unacceptable performance) in a later letter. Mock, 196 F. App‘x at 774. By contrast, Henry testified he did not ask why he was being terminated. (Doc. 44-1 at 16). See Kohser v. Protective Life Corp., 2015 WL 1395911, at *7-8 (N.D. Ala. Mar. 25, 2015) (distinguishing Mock where evidence failed to show employee
Because Henry has failed to raise a genuine issue of material fact regarding whether the defendants’ legitimate, non-retaliatory reasons for terminating him were pretext, the defendants are entitled to summary judgment on Henry‘s FLSA retaliation claim. See Johnson, 778 F. Supp. 2d at 1277.
V. Conclusion
For the foregoing reasons, the defendants’ second motion for summary judgment (Doc. 43) is DENIED as to Henry‘s claims for unpaid wages and overtime compensation related to “load/unload time” and travel time incurred prior to September 1, 2015. The motion is GRANTED as to Henry‘s FLSA retaliation claims, and those claims are DISMISSED WITH PREJUDICE.
DONE this 9th day of January, 2019.
STACI G. CORNELIUS
U.S. MAGISTRATE JUDGE
Notes
Q. Do you recall specifically what issues Andrew had about the communication?
A. I could only guess.
(Doc. 44-10 at 16).Johnson works 40 hours a week at the plant and is paid $7 an hour, or $280. In the same workweek he earns $60 for 10 hours of piecework done at home. His hourly rate of pay is $6.80 [($280 + $60) ÷ 50]. As overtime he gets an extra half-time for the 10 hours he worked over 40, or $34 [10 × $3.40]. His total wage for the week is $374 [$280 + $60 + $34].
1 GUIDE TO EMPLOYMENT LAW AND REGULATION § 13:32.