Chapman v. Grable Plumbing Co., Case No. 8:10-cv-1202-T-30AEP

FRANK CHAPMAN, Plaintiff, v. GRABLE PLUMBING COMPANY, INC., Defendant.

Case No. 8:10-cv-1202-T-30AEP

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

Dated: August 1, 2011

ORDER

THIS CAUSE comes before the Court upon Defendant's Motion for Summary Judgment (Dkt. 28) and Plaintiff's Response in opposition (Dkt. 49). The Court, having reviewed the motion, response, record evidence, and being otherwise advised in the premises, concludes that the motion should be granted in part and denied in part.

BACKGROUND¹

Plaintiff Frank Chapman was employed at Defendant Grable Plumbing Company, Inc. as a service technician/plumber in March, 2007. He remained employed, other than a brief hiatus, until April 5, 2010, when his employment was terminated.²

Grable is a small residential and commercial plumbing business. The majority of its business is to customers in and around Tampa Bay. It currently has nine employees, including its owner, Bill Grable.

Grable's plumbers drive directly from their home in a company-provided service van to their first service call. Each plumber takes his service van to his residence at the end of the workday. A dispatcher arrives at Grable's office around 7:30 a.m., prioritizes any service calls received, and then calls or texts the plumbers to assign the jobs. Each plumber is provided a cell phone. According to Chapman, in the ordinary course of business he would probably run four or five calls a day. He would account for his time on a daily driver's report ("DDR"), which he turned in to Grable on Wednesdays. The DDR would reflect the customer's name, address, type of call, what time he arrived at the address, what time he left, how he charged the customer, and how the customer paid for the work performed.

Chapman was paid by Grable on an hourly basis. According to Chapman and another former plumber, Andrew Therien, they were expected to be in their service van each morning at 7:30 a.m., ready to receive word from the dispatcher directing them where to go on their first call of the day. Defendant vehemently disputes that Chapman, or any other plumber, was required to wait in his service van for the first call.

It is undisputed that Grable does not pay its plumbers to drive from their home to the first job site. The plumbers' pay begins when they arrive at the first job site. And their paid time ends when they leave the last job site of the day. Grable does not pay its plumbers for the time spent driving from their last job site to their home.

Each plumber works "on-call" shifts. One plumber is on-call at the end of the regular workday until the regular shifts begin the following morning. This was typically from 4:30 p.m. until 7:30 a.m., the following morning. Additionally, one plumber is on-call during an entire weekend about one time per month.

When on-call, a plumber needs to be within fifteen minutes of his service van. If a plumber is unable to respond for some reason, he has the ability to trade his on-call time with another plumber. It is undisputed that Grable only paid the plumbers for the time they spent responding to and working on a call. In other words, Grable did not compensate the plumbers for the time they spent on-call when they were not working on a customer service call.

According to Chapman, when he was on-call, he was pretty much restricted from leaving his home or going anywhere to do other personal things because he always had to be within fifteen minutes of his service van. According to Chapman, he was prohibited from using his service van for personal reasons, except for one occasion. Defendant disputes that the on-call policy prevented plumbers from leaving their homes. Also, according to Defendant, plumbers could use their service vans for personal reasons, as long as they received approval ahead of time.

Subsequent to Chapman's termination, he filed the instant action claiming he should have been compensated for all time periods he spent on-call and other wait time; for time spent driving from his home to the first job site; for travel time between job sites; and for time spent driving from his last job site to his home.

This case is at issue upon Defendant's motion for summary judgment. Defendant contends that it is entitled to judgment, as a matter of law, on the entirety of Chapman's claims.

DISCUSSION

I. Summary Judgment Standard

Motions for summary judgment should be granted only when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The existence of some factual disputes between the litigants will not defeat an otherwise properly supported summary judgment motion; "the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (emphasis in original). The substantive law applicable to the claimed causes of action will identify which facts are material. Id. Throughout this analysis, the court must examine the evidence in the light most favorable to the non-movant and draw all justifiable inferences in its favor. Id. at 255.

Once a party properly makes a summary judgment motion by demonstrating the absence of a genuine issue of material fact, whether or not accompanied by affidavits, the nonmoving party must go beyond the pleadings through the use of affidavits, depositions, answers to interrogatories and admissions on file, and designate specific facts showing thatthere is a genuine issue for trial. Celotex, 477 U.S. at 324. The evidence must be significantly probative to support the claims. Anderson, 477 U.S. at 248-49 (1986).

This Court may not decide a genuine factual dispute at the summary judgment stage. Fernandez v. Bankers Nat'l Life Ins. Co., 906 F.2d 559, 564 (11th Cir. 1990). "[I]f factual issues are present, the Court must deny the motion and proceed to trial." Warrior Tombigbee Transp. Co. v. M/V Nan Fung, 695 F.2d 1294, 1296 (11th Cir. 1983). A dispute about a material fact is genuine and summary judgment is inappropriate if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 248; Hoffman v. Allied Corp., 912 F.2d 1379 (11th Cir. 1990). However, there must exist a conflict in substantial evidence to pose a jury question. Verbraeken v. Westinghouse Elec. Corp., 881 F.2d 1041, 1045 (11th Cir. 1989).

II. Defendant's Motion for Summary Judgment

A. On-Call Time

Chapman claims that he should have been compensated for all the time he spent on-call, including the time he spent waiting to receive a call. When employees are engaged to wait for the employer's call to work, the time may be compensable. See Skidmore v. Swift & Co., 323 U.S. 134, 136 (1944). The issue depends on whether the employee may use the time for personal reasons. Birdwell v. City of Gadsen, Ala., 970 F.2d 802, 807 (11th Cir. 1992). This question has been formulated as whether "the time is spent predominately for the employer's benefit or for the employee's." Armour & Co. v. Wantock, 323 U.S. 126,133, 65 S.Ct. 165, 168, 89 L.Ed. 118 (1944). And this question is "dependent upon all the circumstances of the case." Skidmore, 323 U.S. at 136.

In Birdwell, the Eleventh Circuit reviewed holdings in a number of cases involving the issue of whether on-call waiting time was compensable. After a review of those cases, the Eleventh Circuit determined that detectives who were on-call for a week were not entitled to compensation under the FLSA. Id. at 810. The detectives were on-call twenty-four hours a day for seven days in a row. Id. at 808. They did not have to stay at the police station, but they were required to carry a beeper with them if they left home. Id. They were not allowed to drink alcohol, leave town, go on vacation, or participate in outdoor activities such as hunting or fishing. Id. If they did go anywhere with friends or family, they had to take their own vehicle in case they were called in to work suddenly. Id. Despite these restrictions, the Eleventh Circuit found that the detectives' on-call time was used predominantly for their own benefit, and that no reasonable jury could find otherwise. Id. at 810. The Court concluded that "an employee's free time must be severely restricted for off-time to be construed as work time for purposes of the FLSA." Id. at 810 (emphasis added).

In Bright v. Houston Northwest Medical Center, 888 F.2d 1059 (5th Cir.1989), one of the cases discussed in Birdwell, the plaintiff was on call for eleven months straight. During this time he was required to remain sober, always be reachable by beeper, and arrive at work within 20 minutes of being called. Birdwell, 970 F.2d at 808-09. The court in Bright "acknowledged that Bright's job was undesirable and perhaps oppressive, [but] held that this on-call time was not working time under the FLSA." Id. at 809.

In Brekke v. City of Blackduck, 984 F. Supp. 1209 (D. Minn. 1997), the court granted summary judgment to the defendant because "the general rule is that, although every on-call policy creates some imposition on the life of the employee subject to the terms thereof, such time will nonetheless rarely be compensable." Id. at 1220-21. In Brekke, the plaintiffs/ambulance drivers were required to wear paging devices, and remain within a certain geographic proximity of the Ambulance Service Garage when they were on-call. See also Berry v. County of Sonoma, 30 F.3d 1174 (9th Cir. 1994) (coroners were not entitled to compensation for on-call time despite the fact that they were on call twenty-four hours a day, were required to respond to pages within fifteen minutes, and received three to six calls per day).

The same result was reached in Lurvey v. Metropolitan Dade County, 870 F. Supp. 1570 (S.D. Fla. 1994) and ...