Byrd v. ABC Prof'l Tree Serv., Inc.

832 F.Supp.2d 917

17 Wage & Hour Cas.2d (BNA) 1594

Michael BYRD, Plaintiff,

v.ABC PROFESSIONAL TREE SERVICE, INC., Defendant.

Case No. 1:10–cv–0047.

United States District Court,

M.D. Tennessee,

Columbia Division.

June 6, 2011.

Eugene Raymond Hallworth, Hallworth & Associates, Columbia, TN, for Plaintiff.

Kendra E. Samson, Aubrey B. Harwell, III, Neal & Harwell, Nashville, TN, for Defendant.

MEMORANDUM

ALETA A. TRAUGER, District Judge.

Pending before the court is the Motion for Summary Judgment filed by the defendant (Docket No. 20), to which the plaintiff has filed a response (Docket No. 24), and in support of which the defendant has filed a reply (Docket No. 34). For the reasons discussed below, the defendant's motion will be denied.

FACTS

The plaintiff, Michael Byrd, worked for defendant ABC Professional Tree Service, Inc. (“ABC”) from September 2007 through July 2008.¹ He alleges that ABC violated the Fair Labor Standards Act (“FLSA”), 29 U.S.C. 201 et seq., by failing to pay him for all hours worked and failing to pay proper overtime.

ABC, which is based in Houston, Texas, provides vegetation management and tree trimming services throughout the country. The plaintiff worked for ABC as a “trim lift bucket truck” driver. He alleges that, during his first several months of employment, he was required to perform approximately two hours of uncompensated work each day and that he sometimes worked entire days without pay. The plaintiff further alleges that ABC's confusing timekeeping methods—in particular, the fact that his time sheets were often signed by someone else—exacerbated the problem. The plaintiff claims that he complained to various supervisors regarding the unpaid overtime but that they were unresponsive.

In May 2008, the plaintiff began working on a job for a different ABC customer, and from that point forward he was compensated for all hours worked. On June 7, 2010, the plaintiff filed this suit, which alleges violations of § 207 of the FLSA and seeks back wages and unpaid overtime. The defendant denies that it violated the statute.

ABC has previously faced investigations by the Department of Labor (“DOL”) related to FLSA violations. The plaintiff has submitted a DOL press release, dated February 15, 2007, announcing that ABC agreed to pay $1.8 million in overtime back pay to 2,501 employees in 16 states following a DOL investigation. (Docket No. 24, Ex. 2.) The press release states that the investigation revealed that, between August 2004 and August 2006, ABC had “violated the overtime provisions of the [FLSA].” ( Id.) It further states that “[a] portion of the back wages will go to workers who worked for the company in the aftermath of Hurricane Katrina.” ( Id.)

In a verified interrogatory response, ABC stated that it “provides lodging for its crews when they are away from home” and that, “due to the massive numbers of persons displaced by the 2005 hurricanes, Defendant was unable to find accommodations for many of its employees working in the affected area.” (Docket No. 22, Ex. 3 at 4.) ABC has also submitted the affidavit of its president, Rocio Jasso, who states that the DOL opened its inquiry in August 2006 as a result of “ABC's inability to find appropriate lodging for its employees during the hurricane clean-ups.” (Docket No. 34, Ex. 1 ¶ 9.) According to Jasso, the DOL “ultimate[ly] developed a formula it applied across the company to calculate back wages and ABC paid the amount determined by the [DOL].” ( Id.)

The DOL also apparently investigated ABC on a smaller scale in 2005. The plaintiff has submitted a “Compliance Action Report,” dated June 16, 2005, from the Nashville, Tennessee district office of the DOL's Wage and Hour Division. (Docket No. 24, Ex. 1 at 2–3.) The report lists a Nashville address for ABC. ( Id. at 2.) It cites the company for FLSA violations for failing to pay minimum wage and failing to pay proper overtime to one employee. ( Id.) The “Conclusions & Recommendations” section of the document states, in relevant part:

Payroll manager Laura Solis ATP one EE for more than one month's wages last check.² ... EE notified WH of rec. of partial BW. Employee was due BW for more than mo. period, [d]ue to WH intervention company advanced partial payment due to the EE. Company then reviewed hrs. and compensated for any balance of hours and OT due. EE has been informed and has accepted the BWs found to be due.

( Id. at 3 (minor grammatical corrections included).) The document indicates that ABC agreed to pay $2,445 in back wages and overtime and agreed to comply with the FLSA in the future. ( Id. at 2.)

In her affidavit, Jasso states that she “has no recollection” of this DOL investigation, nor does ABC have any record “at the corporate office” of it. (Docket No. 34, Ex. 1 ¶ 4.) She also searched and “found no check written to any payee for any of the amounts shown” in the report. ( Id.) Jasso states that any communication with the DOL “should come through [her] as the President of the company” and that “[n]o other person is authorized to speak to the [DOL] on behalf of ABC unless [she] direct[s] them to do so.” ( Id. ¶ 3.) She further states that she did not authorize anyone to speak to the DOL and that ABC does not have, and has never had, a physical office in Tennessee.

The defendant has also submitted the affidavit of Laura Soliz, ABC's payroll manager, who was mentioned in the Compliance Action Report as “Laura Solis.” Soliz states that she “did not take part in any investigation by the [DOL] as reflected in” the report. (Docket No. 34, Ex. 2 ¶ 2.) She, too, states that ABC's corporate office has no record of any such investigation. ( Id.)

Finally, ABC was the subject of another DOL investigation in March 2010. That investigation, however, did not find that ABC owed any overtime wages, and, regardless, it took place after the FLSA violations alleged by the plaintiff. (Docket No. 22, Ex. 3 at 5.)

The defendant has filed a Motion for Summary Judgement, pursuant to Federal Rule of Civil Procedure 56, arguing that the plaintiff's claims are barred by the applicable statute of limitations.

ANALYSIS

I. Summary Judgment Standard

Rule 56 requires the court to grant a motion for 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). If a moving defendant shows that there is no genuine issue of material fact as to at least one essential element of the plaintiff's claim, the burden shifts to the plaintiff to provide evidence beyond the pleadings “set[ting] forth specific facts showing that there is a genuine issue for trial.” Moldowan v. City of Warren, 578 F.3d 351, 374 (6th Cir.2009); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “In evaluating the evidence, the court must draw all inferences in the light most favorable to the [plaintiff].” Moldowan, 578 F.3d at 374.

At this stage, “ ‘the judge's function is not ... to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial.’ ” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). But “the mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient,” and the plaintiff's proof must be more than “merely colorable.” Anderson, 477 U.S. at 249, 252, 106 S.Ct. 2505. An issue of fact is “genuine” only if a reasonable jury could find for the plaintiff. Moldowan, 578 F.3d at 374 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).

II. Statute of Limitations

The defendant argues that the plaintiff's claims are time-barred because he cannot show that ABC's actions were willful. The statute of limitations applicable to FLSA claims provides a two-year limitations period, unless the claim “aris[es] out of a willful violation,” in which case the limitations period is three years. 29 U.S.C. § 255(a). The plaintiff concedes that he must show willfulness to recover, because ABC's alleged violations all occurred more than two years before he filed this suit. (Docket No. 33 at 2.)

In McLaughlin v. Richland Shoe Co., 486 U.S. 128, 108 S.Ct. 1677, 100 L.Ed.2d 115 (1988), the Supreme Court construed “willful” to be “synonymous with such words as ‘voluntary,’ ‘deliberate,’ and ‘intentional.’ ” Id. at 133, 108 S.Ct. 1677. The Court rejected a standard of willfulness that would extend the limitations period merely because “an employer knew that the FLSA ‘was in the picture,’ ” because “it would be virtually impossible for an employer to show that he was unaware of the Act and its potential applicability.” Id. at 132–33, 108 S.Ct. 1677 (quotation marks omitted). Instead, the Court held that a violation is only willful if “the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute.” Id. at 133, 108 S.Ct. 1677. This requires something more than mere negligence by the employer. Id. at 135, 108 S.Ct. 1677.

The Sixth Circuit has liberally applied the McLaughlin standard, repeatedly holding that previous DOL investigations regarding overtime violations are evidence that subsequent FLSA violations are willful. In Dole v. Elliott Travel & Tours, Inc., 942 F.2d 962 (6th Cir.1991), the Secretary of Labor sued the defendant travel agency for failing to pay overtime for hours in excess of 40 per week and for failing to account for employees' commissions when calculating the overtime rate. Id. at 964. The Secretary argued that these violations were willful because the defendant “had actual knowledge of the overtime provisions of the FLSA prior to the violations at issue.” Id. at 967. More than ten years earlier, in 1975, the defendant's predecessor company was investigated for “overtime violations,” and it agreed...