Ziegler v. Tower Cmtys., LLC

KEITH ZIEGLER AND SHANDA ZIEGLER, Plaintiffs, v. TOWER COMMUNITIES, LLC, Defendant.

CASE NO.: 2:13-CV-872-KOB

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

March 17, 2015

MEMORANDUM OPINION

This FLSA matter is before the court on cross-motions for summary judgment: "Plaintiffs' Motion for Summary Judgment" (doc. 37) and Defendant Tower Communities, LLC's "Motion for Summary Judgment" (doc. 39). Despite the titles of these motions, each is for partial summary judgment; the Plaintiffs' motion addresses the FLSA claim for overtime wages in Count I but not the claim for FLSA retaliation in Count II, and the Defendant's motion is also limited in scope. The Plaintiffs responded to the Defendant's motion (doc. 43), and the Defendant responded to the Plaintiff's motion (doc. 45). All parties filed replies (docs. 49 & 50). These motions have received thorough briefing, with voluminous evidentiary submissions.

For the reasons stated in this Memorandum Opinion, the court FINDS that both motions are due to be GRANTED IN PART and DENIED IN PART. More specifically, the court WILL GRANT the Plaintiffs' motion as to Defendant's misclassification of the Plaintiffs, and also as tothe Defendant's violation of the FLSA's requirements of recordkeeping and of paying overtime wages for time actively worked on behalf of Tower. Further, the court WILL GRANT the Defendant's motion and WILL DENY the Plaintiffs' motion as to Defendant's liability for overtime wages for on-call time other than time spent actively working on behalf of Tower. Finally, the court WILL DENY the Defendant's motion on the issues of its liability for paying overtime wages for active overtime work; of the applicability of the fluctuating workweek method; and of its liability on the claim for FLSA retaliation.

PROCEDURAL BACKGROUND

On May 9, 2013, the Plaintiffs, Keith and Shanda Ziegler, filed a Collective Action Complaint (doc. 1) on behalf of themselves and all others similarly situated, against Defendant, Tower Communities, LLC, asserting violations of the Fair Labor Standards Act. The Zieglers have twice amended the initial pleading; the current pleading, "Plaintiffs' Second Amended Complaint" (doc. 28), dropped the collective class claims, listing only the two named Plaintiffs¹. The Second Amended Complaint contained two causes of action: Count I, alleging that Tower and Steele violated the FLSA in failing to pay minimum wage compensation and overtime compensation and in misclassification of Managers despite their actual job duties; and Count II, alleging that Tower and Steele retaliated against them in violation of the FLSA when the Defendants took retaliatory adverse employment actions against them, including terminating them in retaliation for filing a complaint asserting FLSA violations.

FACTS

Tower does not dispute that the Zieglers are entitled to summary judgment on the claims that Tower misclassified the Zieglers and that it failed to keep time records, but Tower disputes that the Zieglers worked over forty hours per week.

Tower manages trailer and RV parks throughout the United States, including Carson Village and Hidden Valley mobile home communities in Birmingham, Alabama. The company's home office is in California, where its part-owner, former Defendant Bill Steele, is based, and it employees roughly 200 people. Tower is run by three Managers, and Steele is the only one of the three who manages the Alabama parks. Steele decides how much Tower pays its Alabama park employees. Tower generally hires husband and wife teams to manage its trailer parks, with the men generally in charge of outside maintenance work and the women generally in charge of the office and bookkeeping.

Although Steele is the Manager and Supervisor of the Alabama parks, Tower employs Janet and Dan Zuckerman as Auditor-Trainers, and their job is to travel the country in their RV, performing audits of Defendants' parks, training new managers, and helping with management changes.

The Zieglers' Employment and Contract

In January of 2013, Tower hired Keith and Shanda Ziegler to work at the Hidden Valley park. They initially held the position of Assistant Managers, working under Managers Amy and Randy Pruitt, with a total salary of $2,400 per month as a couple, plus living accommodations on the park premises. The contract valued the living accommodations provided to the Zieglers, which was the 3-bedroom/2-bath Managers' Trailer, at $243.10 per month, which is the lot rentalat Hidden Valley. The contract also provided that the Zieglers had a $75.00 monthly utility allowance, a $50.00 monthly cell phone reimbursement allowance, and a fuel allowance that equaled at least $92.00 every month. (Doc. 38-7, at 2).

In a separate paragraph marked "KICK-BACKS," the contract provides, "I will not accept any payments, gifts, or other considerations ('kickbacks') from dealer, or others. I also acknowledge that this is illegal and detrimental to the best interests of owner." (Doc. 41-9, at 2).

Employment Duties

As was customary with Tower husband and wife management teams, Keith Ziegler did the "outside" work and maintenance, and Shanda Zieger performed the "inside" work of running the office. She was also responsible for gardening and making bank deposits. According to the Zieglers' employment contract with Tower, their job duties consisted of the following:

1. Advertise, rent, and show [RV/trailer lot] spaces as they become vacant.

2. Collect all rents when due and promptly deposit the same to owner's account or as otherwise instructed.

3. Clean or supervise the cleaning and preparation, of each space for re-rental.

4. Maintain the general premises in a clean, orderly and safe condition.

5. Perform minor maintenance as may be necessary, including, but not limited to, such items as leaking faucets, stopped up sewer and water drains, minor repairs, and painting. It is understood that employee will not be required to perform, unless otherwise indicated in this contract, major repairs or maintenance, but that employee will do such work as will keep outside plumbing and maintenance bills to a minimum.

6. Care, protection, and regular inventory of maintenance equipment, supplies, tools, and other personal property of owner. Maintain a maintenance log for equipment.

7. Prepare such records and reports as may be required by employer.

8. Be familiar with the Manager Instruction Manual and keep its bulletins updated at all times.

9. Adjust any complaints of tenants and enforce the rules in accordance with the policies of employer.

10. Report any unusual tenant problems to employer.

(Doc. 38-7).

Although the employment contract did not refer to the park pool, Keith Ziegler was also responsible for maintaining the pool when it was open. Keith Ziegler acknowledged that the pool was never open under his management, but he nevertheless cleaned it and added chemicals daily.

The Zieglers' employment contract did not list driving around the park regularly or providing security as one of their job duties, and neither the Zuckermans nor any other Tower supervisor instructed the Zieglers that they must provide security. However, Tower terminated its contract with a private security firm after the Zieglers arrived, and with that termination, Keith Ziegler decided that he would provide security, spending an hour or two regularly driving around the park to keep an eye on things. Ziegler acknowledged that he never told the Zuckermans that he was providing security as part of his work duties, but Dan Zuckerman testified that, with the security firm termination, he knew that Keith Ziegler took over some of the security duties by answering phone calls with complaints about parties and other security matters and by driving around the park once in a while. Dan Zuckerman testified that driving around the park at night took about 15 minutes and that he personally cruised the park once per night while on-call, but he did not specifically instruct the Zieglers to do so and he does not know how often Keith did so.

In an email dated January 29, 2013 from the Pruitts, Managers of both Birmingham Tower parks in January of 2013, referred to "daily rides around the community" and complained about Keith Ziegler failing to clean up a mess left after the removal of a mobile home on a Saturday and not discovered until the next Tuesday. The inference was that the Pruitts understood such daily rides were part of the job of Manager and Assistant Manager. (Doc. 53-3,at 104).

Employment Hours

The Zieglers' employment contract with Tower stated that "[a]lthough employee must reside on the community's premises, compensation is based on a maximum of 40 hours per week." (Doc. 38-7, at 2). During their employment with Tower, the Zieglers never received any pay for hours worked over 40 per week. Steele testified that he understood that the Manager salary would "not be an issue with minimum wage, by paying them the 1,200 and giving them, you know, space rent and a house and so on and so forth." (Doc. 38-2, at 35-36). When asked whether Tower had any method of tracking the time and dates Managers worked, he responded that they were on salary and that Tower did not track the hours actually worked, other than the office hours. The Managers at Hidden Valley park are each scheduled to work office hours from 8:00 a.m. to 4:00 p.m. for five days per week with a one-hour unpaid lunch break, equaling 35 hours per week. The Zieglers similarly understood that the salary amount was all they would receive, regardless of the hours worked.

In addition to the regular office hours, Tower also required that the Managers rotate being on-call, requiring one of the Zieglers to be on-call one week during all hours the office is closed with one of the Carson Managers on-call the next week. Shanda Ziegler testified, however, that when a Ziegler on-call period occurred, both Zieglers stayed at the park except to run short errands.

According to part-owner...