Donatti v. Charter Commc'ns, L.L.C.

950 F.Supp.2d 1038

Peter DONATTI, et al., Plaintiffs,

v.CHARTER COMMUNICATIONS, L.L.C., et al., Defendants.

No. 11–4166–CV–C–MJW.

United States District Court,

W.D. Missouri,

Central Division.

March 29, 2013.

John J. Ziegelmeyer, III, Mark A. Jess, The Employee Rights Law Firm, Kansas City, MO, Kerry C. Connealy, Gaughan Cundiff Herman & Connealy, Overland Park, KS, Michael A. Hodgson, The Hodgson Law Firm, L.L.C., for Plaintiffs.

David Dunn, New York, NY, Jeffrey D. Hanslick, Julianne P. Story, Kansas City, MO, Robert J. Tomaso, Husch Blackwell LLP, St. Louis, MO, Robin J. Samuel, Los Angeles, CA, for Defendants.

ORDER

MATT J. WHITWORTH, United States Magistrate Judge.

Before the Court are cross-motions for partial summary judgment filed by plaintiffs Peter Donatti and Matthew Cowan, and defendants Charter Communications, L.L.C., and Charter Communications, Inc. (collectively “Charter”).¹ The motions argueCharter's Post–May 2010 Compensation Policies as they relate to the Portal–to–Portal Act, as amended by the Employee Flexibility Commuting Act (EFCA) of 1996. 29 U.S.C. § 254.

Plaintiffs are or were previously employed as Broadband Technicians with Charter. Plaintiffs assert they are entitled to be paid for the time they spent driving to and from work in company-provided vehicles and performing activities they are required to complete before or after commuting. Charter asserts plaintiffs are not entitled to compensation for such time and that their policies do not violate the Federal Labor Standards Act (FLSA), Portal–to–Portal Act, or the Employee Commuter Flexibility Act.

Standard

Rule 56(c) of the Federal Rules of Civil Procedure requires “the entry of summary judgment ... against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden on the party moving for summary judgment “is only to demonstrate ... that the record does not disclose a genuine dispute on a material fact.” City of Mt. Pleasant, Iowa v. Associated Elec. Co-op., 838 F.2d 268, 273 (8th Cir.1988).

Once the moving party has done so, the burden shifts to the nonmoving party to go beyond his pleadings and show, by affidavit or by “depositions, answers to interrogatories, and admissions on file,” that there is a genuine issue of fact to be resolved at trial. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. Evidence of a disputed factual issue which is merely colorable or not significantly probative, however, will not prevent entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Summary judgment, however, “is an extreme remedy, to be granted only if no genuine issue exists as to any material fact.” Haas v. Weiner, 765 F.2d 123, 124 (8th Cir.1985). In ruling on a motion for summary judgment, this court must view all facts in a light most favorable to the nonmoving party, and that party must receive the benefit of all reasonable inferences drawn from the facts. Robinson v. Monaghan, 864 F.2d 622, 624 (8th Cir.1989).

If “there is no genuine issue as to any material fact and ... the movant is entitled to judgment as a matter of law,” the court must grant summary judgment. Fed.R.Civ.P. 56(c).

Facts

Plaintiff Matthew Cowan is a current Charter employee, and plaintiff Peter Donatti is a former Charter employee. Plaintiffs were employed by Charter during the relevant periods as Broadband Technicians (“technicians”). Charter allows, but does not require, technicians to commute to and from work in their assigned company vehicles. The decision to use a Charter vehicle to commute is voluntary. Instead of commuting in a company-provided vehicle, employees may choose to commute in their personal vehicles and park their assigned company vehicles at a Charter facility. Mr. Donatti elected to commute in a Charter vehicle, but Mr. Cowan did not. Mr. Cowan left his Charter vehicle at Charter's Sedalia office each night. However, there is an exception when technicians, like Mr. Cowan, are “on-call.” During the time that a Charter technician is “on call,” policy states that an employee may be required to take their company vehicle home.

Mr. Donatti held the positions of Broadband Technician II and Broadband Technician III during the relevant period of June 27, 2009, through June 27, 2011 (the “Class Period”), and Mr. Cowan held the position of Broadband Technician IV (also known as Broadband Technician Senior, or “Tech Senior”).

During the relevant periods, Charter has had written timekeeping and vehicle-use policies in place, named Vehicle Policies, Timekeeping Policies, Timekeeping Memoranda, and an Employee Handbook, that specify when technicians such as plaintiffs begin and end their workday, and how they should record their work time for payroll purposes. (Doc. 57, Affidavit of Colleen Judson, (“Judson Aff.”), ¶¶ 24–28; see generally, Doc. 58, Ex. 9, 2008 Timekeeping Policy; Ex. 10, July 2009 Timekeeping Policy; Ex. 11, October 2009 Timekeeping Policy; Ex. 12, 2010 Timekeeping Policy ²; Ex. 5, 2011 Timekeeping Memo.) These written policies specify that technicians are not paid for their normal commuting time, i.e., the time they spend driving from their home to work in the morning, and from work back home in the evening, regardless of whether the technicians choose to commute in their private vehicles or in Charter-provided vehicles. See Doc. 58, Ex. 5, 2011 Timekeeping Memo at 1–4; Doc. 57, Judson Aff. ¶¶ 29–33; Doc. 58, Ex. 13, relevant excerpts from 2006 Handbook at 46; Ex. 14, relevant excerpts from March 2010 Handbook at 124; Ex. 15, relevant excerpts from December 2010 Handbook at 70; Ex. 16, relevant excerpts from 2011 Handbook ³ at 70.

The written policies further specify that technicians who commute in Charter-provided vehicles are not paid for performing certain activities that are related to their commute, such as carrying specified equipment and customer payments to and from their vehicles and conducting a limited safety check before beginning the drive to work. See Doc. 58, Ex. 5, 2011 Timekeeping Memo at 1–4. The written policies specify that Charter will pay its nonexempt employees for all hours they work, and strictly prohibit employees from working “off the clock”—that is, before their shift begins, after their shift ends, or during a meal break—without advance authorization. See Doc. 58, Ex. 12, 2010 Timekeeping Policy at 1; Ex. 16, 2011 Employee Handbook at 15. Nevertheless, if an employee works off the clock, even without authorization, Charter's policies require that the employee be compensated for the time worked. Id. Technicians are required to comply with Charter's timekeeping and vehicle-use policies, as amended from time to time. See Doc. 57, Judson Aff., ¶¶ 4, 5. Plaintiffs acknowledged, in writing, that they had read and understood Charter's timekeeping and vehicle-use policies. (Doc. 57, Judson Aff. ¶¶ 6, 12–17; see Doc. 58, Ex. 17, Donatti Acknowledgment of 2008 Timekeeping Memo; Ex. 18, Donatti Acknowledgment of 2009 Timekeeping Memo; Ex. 19, Donatti Acknowledgment of 2010 Timekeeping Memo; Ex. 20, Cowan Acknowledgment of 2008 Timekeeping Memo; Ex. 21, Cowan Acknowledgment of 2009 Timekeeping Memo; Ex. 22, Cowan Acknowledgment of 2010 Timekeeping Memo.)

Procedural History

Plaintiffs filed their complaint on June 27, 2011, and an amended complaint on August 15, 2011. In both complaints, plaintiffs assert FLSA claims on behalf of themselves and all similarly situated “Cable Technicians.” Plaintiffs allege a class period of two years in their Amended Complaint. See Doc. 8, Amended Complaint, ¶¶ 28, 44. Because the original complaint was filed on June 27, 2011, the class period extends back two years from the date of filing: June 27, 2009, through June 27, 2011.

Plaintiffs allege Charter failed to compensate them and the other technicians for time spent transporting company property in Charter vehicles, and for time spent performing certain pre-and post-shift activities, such as gathering tools and paperwork, obtaining routes and orders, and inspecting vehicles. Plaintiffs contend that Charter's failure to pay for the time spent performing these activities violates the FLSA. On November 30, 2011, the parties submitted a Joint Proposed Preliminary Scheduling Order in which they agreed that there are two potentially dispositive legal issues that the Court should resolve at the outset. The first threshold issue is whether plaintiffs' commuting time claims are cognizable under the ECFA. On December 5, 2011, this Court entered the parties' Proposed Scheduling Order and set a schedule for discovery and dispositive motions on the threshold issues.⁴

Charter's Compensation and Timekeeping Policies for Non–Exempt Employees

Charter is the fourth largest cable operator in the United States, and provides advanced video, high-speed Internet, and telephone services to approximately 5.2 million residential and business customers in 25 states. See Doc 58, Ex. 16, 2011 Handbook at 4. Charter requires its employees to accurately report all hours worked on their timecards. See Doc. 58, Ex. 12, 2010 Timekeeping Policy at 3; Ex. 16, 2011 Handbook at 15–16. An employee who provides false or inaccurate information on a timecard may be subject to discipline. See Ex. 12, 2010 Timekeeping Policy at 2; Ex. 16, 2011 Handbook at 16. Charter's general policies requiring compensation for nonexempt employees, including the rules described previously, are set forth in its Employee Handbook and Timekeeping Policy. (Doc. 57, Judson Aff., ¶ 4.)

All employees are given access to the Employee Handbook and the Timekeeping Policy at the time they begin employment with Charter. Id., ¶¶ 24, 29. The Timekeeping Policy and the Employee Handbook are published online via Charter's...