Henry v. Wells Remodeling LLC et al

Filing 54

MEMORANDUM OPINION AND ORDER- The defts' second motion for summary judgment (Doc 43 ) is DENIED as to John 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 John Henry's FLSA retaliation claims are DISMISSED WITH PREJUDICE. Signed by Magistrate Judge Staci G Cornelius on 1/9/19. (MRR, )

FILED

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2019 Jan-09 PM 04:00
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JOHN HENRY,
Plaintiff,
v.
WELLS REMODELING, LLC, et al.,
Defendants.

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Case No.: 2:16-cv-00511-SGC

MEMORANDUM OPINION & ORDER1
John Henry commenced this action against Wells Remodeling, LLC, and
Andrew Wells, alleging violations of the Fair Labor Standards Act, 29 U.S.C. §
201, et seq. (Doc. 1). Pending before the undersigned is the defendants’ second
motion for summary judgment. (Doc. 43). For the reasons discussed below, the
motion is due to be denied in part and granted in part.
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

1

The parties have consented to the exercise of dispositive jurisdiction by a magistrate judge
pursuant to 28 U.S.C. § 636(c). (Doc. 12).
2
The following facts are undisputed, unless otherwise noted. They are viewed in the light most
favorable to Henry, as the non-movant, with Henry given the benefit of all reasonable inferences.

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during the first half of 2015, Alabama ReBath hired John Henry (“Henry”) as an
installer and agreed to pay him $20 per hour. (Id. at 2; Doc. 44-1 at 39).3
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).

3

The parties dispute when Henry’s employment with Alabama ReBath commenced. (Doc. 46-1
at 1; Doc. 53-1 at 1).
4
Henry claims he also picked up trash that had been dumped outside. (Doc. 44-1 at 7-8; Doc.
46-1 at 1). Wells denies Henry was required to clean up trash (Doc. 44-3 at 52), and the
defendants contend that even if Henry performed such work, the time it required was de minimis
(Doc. 51 at 24).
5
Henry disputes that Alabama ReBath always paid this fixed amount of load/unload time. (Doc.
47 at 7).

2

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If Henry was to receive compensation for load/unload time on a given day,
“yes” was recorded in a field for load/unload time on his pay sheet. (See, e.g.,
Doc. 44-5 at 62). Henry’s pay sheets for May and June 2015 indicate he was paid
$15 for load/unload time on days he was credited with that time. (Id. at 62-66).
However, Henry’s pay sheets for July and August 2015 indicate Henry was paid
$11.25 for that time. (Id. at 67-76). Whatever Henry was paid for load/unload
time, neither the estimated 45 minutes required to unload debris and load job
materials nor the actual time Henry spent performing these tasks appears to have
been counted towards Henry’s overtime. (See, e.g., id. at 62). 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 top of that calculation.

(See, e.g., id.).

Henry’s pay sheets for May through August 2015 show he worked 40 or more
hours on the job site during some weeks. (Id. at 62, 63, 65, 66, 68-70, 74-76).
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
3

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time. (Id. at 1-2). However determined, travel time from the Alabama ReBath
office to the job site, like load/unload time, does not appear to have been counted
towards Henry’s overtime. (See, e.g., Doc. 44-5 at 61).
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).

4

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Henry complained to Wells and Wilkinson about his compensation for
load/unload time and travel time. (Doc. 46-1 at 2-3; Doc. 51 at 28).6 Henry
testified Wells appeared frustrated and upset regarding Henry’s complaints. (Doc.
46-1 at 2-3).7 Henry claims that in retaliation for his complaints, Wells informed
him and his co-workers they would not be compensated for load/unload time at all.
(Doc. 44-1 at 21; Doc. 46-1 at 2; Doc. 47 at 23). However, Henry’s pay sheets for
the weeks leading up to September 1, 2015, show he was paid for some
load/unload time during each of those weeks. (Doc. 44-5 at 62-76).
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.
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,

6

The defendants dispute the precise nature of Henry’s complaints and characterize them as
arising from Henry’s misunderstanding of the Alabama ReBath pay system. (Doc. 51 at 28).
7
The defendants dispute this testimony. (Doc. 52 at 5).

5

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Henry’s rate of pay exceeded his $20 hourly rate. (Id.). Henry did not dispute the
accuracy of this calculation (Doc. 38), which formed a basis for the entry of
summary judgment in the defendants’ favor on Henry’s unpaid wages and
overtime claims for the period September 1, 2015, to October 26, 2015 (Doc. 42).
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. 443 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).

6

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Wells did not discipline Henry for issues regarding his communication, job
performance, or attitude pursuant to a progressive discipline policy included in the
Alabama ReBath Employee Handbook prior to terminating him. (Doc. 44-3 at 54).
A prefatory paragraph to the policy states, “progressive discipline is not
appropriate in every case and Alabama Re-Bath will review each case on its own
facts.” (Doc. 44-4 at 47 (emphasis in original)). A note at the end of the policy
states, “[t]he progressive discipline procedure outlined here is a general guideline
only and the management of Alabama Re-Bath is NOT required to follow this
procedure in every case.” (Id. at 50 (emphasis in original)). Wells testified
Alabama ReBath had an informal and liberal approach to discipline at the time of
Henry’s employment. (Doc. 44-3 at 18-19).
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.).

7

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Wilkinson testified he personally did not have frustrations with Henry’s
communication (Doc. 44-10 at 16), could only guess at what specific issues Wells
had with Henry’s communication (id.),8 and himself did not receive complaints
regarding the quality of Henry’s work (id. at 24). However, he also testified Wells
was frustrated with Henry’s job performance in that it took Henry longer than
scheduled to complete jobs, which made it difficult to schedule Henry for jobs, and
that there were “a lot of problems” on Henry’s jobs. (Doc. 44-10 at 12, 14-16).
Text messages from Wells to Henry in October 2015 confirm Wells was frustrated
with Henry’s communication as it related to scheduling. On Friday, October 2,
2015, after Henry told Wells he planned to have a customer sign paperwork on the
following Monday morning at 8:00 A.M., the following exchange ensued:
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?

8

Henry mischaracterizes Wilkinson’s testimony on this point. While Henry claims Wilkinson
testified he did not recall Wells having frustrations with Henry’s communication (Doc. 47 at 25),
Wilkinson testified as follows:
Q. Do you recall specifically what issues Andrew had about the communication?
A. I could only guess.
(Doc. 44-10 at 16).

8

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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?

9

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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[.]”
...
10

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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 29 U.S.C. § 207(i).
Henry conceded the argument.

(Doc. 38).

(Doc. 35).

The undersigned granted the

defendants’ motion, dismissing Henry’s claims for unpaid wages and overtime for
the period September 1, 2015, to October 26, 2015, with prejudice. (Doc. 42).

11

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Through the presently pending motion, the defendants seek summary
judgment on Henry’s claims for unpaid wages and overtime compensation related
to “load/unload time” and travel time incurred prior to September 1, 2015, in
violation of 29 U.S.C. §§ 206 and 207 and unlawful retaliation in violation of 29
U.S.C. § 215(a)(3).
III. Standard of Review
Under Rule 56 of the Federal Rules of Civil Procedure, “[t]he [district] court
shall grant 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The party seeking summary judgment bears the initial burden of informing the
district court of the basis for its motion and identifying those portions of the record
the party believes demonstrate the absence of a genuine dispute as to a material
fact. Celotex Corp., 477 U.S. at 323. If the movant fails to carry its initial burden,
the motion must be denied, and the court need not consider what showing the nonmovant has made. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116 (11th Cir.
1993).

Otherwise, the non-movant must go beyond the pleadings and come

forward with evidence showing there is a genuine dispute as to a material fact for
trial. Celotex Corp., 477 U.S. at 324.

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The substantive law identifies which facts are material and which are
irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute
is genuine if there is a real basis in the record for the dispute, Ellis v. England, 432
F.3d 1321, 1326 (11th Cir. 2005), and the evidence is such that a reasonable jury
could return a verdict for the non-movant, Anderson, 477 U.S. at 248. If the
evidence is merely colorable or not significantly probative, summary judgment is
appropriate. Id. at 249-50 (internal citations omitted). All reasonable doubts about
the facts should be resolved in favor of the non-movant, and all justifiable
inferences should be drawn in the non-movant’s favor. Fitzpatrick, 2 F.3d at 115.
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).

13

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A. Load/Unload Time & Travel Time to Job Site
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

9

In response, Henry claims there are missing time sheets and that his pay sheets were altered to
remove load/unload time and travel time from the Alabama ReBath office to the job site, as a
result of which he can meet a reduced burden of proving his claims for this time through
deposition and affidavit testimony. (Doc. 47 at 13-15). It is not necessary to address the
substance of Henry’s response or the defendants’ reply thereto (Doc. 52 at 6-9) because, as
discussed below, the defendants have not demonstrated Henry’s compensation for load/unload
time and travel time to the job site complied with the FLSA’s minimum wage and overtime
requirements. See Fitzpatrick, 2 F.3d at 1116 (“If the party moving for summary judgment fails
to discharge the initial burden, then the motion must be denied and the court need not consider
what, if any, showing the non-movant has made.”).

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question is whether the defendants, as the movants, have shown payment of Henry
for load/unload time in this manner complied with the FLSA’s minimum wage and
overtime requirements. As discussed below, they have not carried their burden on
this issue.
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.

29 C.F.R. § 778.109.10

Where an

employer compensates an employee on an other-than-hourly basis, compliance
with the FLSA’s minimum wage and overtime requirements is generally
determined by reference to an employee’s “regular rate of pay,” and that rate is
determined by reference to the hours actually worked by the employee. Id. For
example, if an employee is compensated solely on an hourly basis, his regular rate
is his hourly rate. 29 C.F.R. § 778.110. If an employee is paid a flat sum for doing
a particular job without regard to the number of hours spent on the job, his regular
rate is the total of all sums received at the job rate for a given work week divided
by the total hours actually worked during that week. 29 C.F.R. § 778.112. If an
employee is compensated on the basis of multiple rates, his regular rate is his total
10

The Department of Labor’s regulations implementing the FLSA are accorded Chevron
deference. Falken v. Glynn County, Georgia, 197 F.3d 1341, 1346 (11th Cir. 1999).

15

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earnings from all rates for a given work week divided by his total hours worked
during that week. 29 C.F.R. § 778.115; see also §778.109. However computed,
the employee’s regular rate of pay must not fall below the statutory minimum
wage, and the employee must be compensated at one-and-one-half times that rate
for hours worked in excess of forty. 29 C.F.R. § 778.107; see also 29 U.S.C. §§
206, 207; Helmert v. Butterball, LLC, 805 F. Supp. 2d 655, 667 (E.D. Ark. 2011)
(holding that employer cannot compensate employees based on amount of time a
reasonably efficient employee would spend donning and doffing smocks if actual
time is greater and result is that compensation falls below FLSA’s minimum wage
and overtime requirements).11
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
11

For example:
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 G UIDE TO EMPLOYMENT LAW AND REGULATION § 13:32.

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load/unload time, and the number of hours he actually worked at both of these
rates, (2) confirming that rate did not fall below the statutory minimum wage, and
(3) showing that Henry was compensated at one-and-one half times that rate for
hours worked in excess of forty. Because the defendants have not done this, they
have fallen short of meeting their burden. See Gaytan v. G&G Landscaping
Constr., Inc., 145 F. Supp. 3d 320, 326-27 (D.N.J. 2015) (denying employer’s
motion for summary judgment where employer neglected to address question as to
whether its method of overtime compensation complied with FLSA); Wirtz v.
Williams, 369 F.2d 783, 785 (5th Cir. 1966) (holding district court’s conclusion
employer had complied with FLSA’s overtime requirements was clearly erroneous
where employer paid employees based on estimated hours and kept no record of
hours actually worked).
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
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the number of hours Henry actually spent at the Alabama ReBath office unloading
demolition debris and loading job materials in a given work week and the
compensation he received for that time. See discussion supra. Neither Henry’s
time sheets nor his pay sheets explicitly record the actual time Henry spent
unloading debris and loading materials on a given day. To the extent the time
could be deduced from other recorded information, the undersigned declines to
undertake this time-consuming analysis, given other questions of fact would
nonetheless preclude summary judgment.
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
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top of that calculation.

(See, e.g., Doc. 44-5 at 62).

As a general rule, all

compensable time must be considered in determining whether overtime
compensation is owed. See 29 C.F.R. § 790.6 (“Periods of time between the
commencement of the employee’s first principal activity and the completion of his
last principal activity on any workday must be included in the computation of
hours worked . . . .”); 29 C.F.R. § 778.315 (“In determining the number of hours
for which overtime compensation is due, all hours worked [] by an employee for an
employer in a particular workweek must be counted.”); 29 C.F.R. § 785.38 (“Time
spent by an employee in travel as part of his principal activity . . . must be counted
as hours worked.”); Mendez v. Radec Corp., 232 F.R.D. 78, 88 (W.D.N.Y. 2005)
(“[C]ompensable travel time is to be included in determining the number of hours
an employee has worked in a given week. . . . There is no basis to treat travel time
differently from employees’ other work-related activites, and those hours count in
determining whether the employee is entitled to overtime.”); Kroll v. Home Depot
U.S.A., Inc., 2003 WL 23332905, at *4 (S.D. Ga. Aug. 20, 2003) (holding that
employee would be entitled to overtime pay for compensable travel time that
occurred during week in which she worked more than forty hours). To the extent
Henry’s hours on the job site exceeded 40 in a given week or those hours together
with the hours Henry spent unloading demolition debris and loading job materials
exceeded 40 – and there is evidence they did (Doc. 44-5 at 62, 63, 65, 66, 68-70,
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74-76) – Henry would be due overtime compensation for load/unload time, absent
a valid argument from the defendants to the contrary. The same is true with
respect to Henry’s travel time from the Alabama ReBath office to the job site.
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.” 29 U.S.C. § 254(a).
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
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integral and indispensable part of the principal activities” (emphasis in original));
Preston v. Settle Down Enterprises, Inc., 90 F. Supp. 2d 1267, 1279 (N.D. Ga.
2000) (noting travel time is compensable only if it is a principal activity of the
employee).

An activity such as travel is integral and indispensable to an

employee’s principal activities if it “is an intrinsic element of those activities and
one with which the employee cannot dispense if he is to perform [the] principal
activities.” Integrity Staffing Sols., Inc. v. Busk, 135 S. Ct. 513, 517 (U.S. 2014).
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
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Eleventh Circuit has not expressly addressed Burton following Integrity Staffing, it
has noted that “the fact that an employer requires or benefits from the activity at
issue does not establish that the activity is integral and indispensable.” Llorca, 893
F.3d at 1324 (citing Integrity Staffing, 135 S. Ct. at 519). See also Brantley v.
Ferrell Elec., Inc., 112 F. Supp. 3d 1348, 1370 (S.D. Ga. 2015) (noting that in
Integrity Staffing, the Supreme Court rejected tests like the one articulated in
Burton to the extent they focus on whether an employer required a particular
activity). However, persuasive authority suggests it is not irrelevant, either.
In Meeks v. Pasco Cty. Sheriff, a deputy sheriff sought overtime
compensation for time spent transporting his patrol car between a sheriff’s patrol
division office and his patrol zone. 688 F. App’x 714, 716 (11th Cir. 2017). 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
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location and his patrol zone compensable, it was relevant to the extent the car was
essential to the deputy sheriff’s job; the deputy sheriff had to have the car, and
because his employer required it to be stored at a designated location, he had to
transport it between that location and his patrol zone.
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 29 C.F.R. § 785.38 (“If an employee normally finishes his
work on the premises at 5 p.m. and is sent to another job which he finishes at 8
p.m. and is required to return to his employer’s premises arriving at 9 p.m., all of
the time is working time.

However, if the employee goes home instead of

returning to his employer’s premises, the travel after 8 p.m. is home-to-work travel
is not hours worked.”).
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
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at 5; Doc. 46-1 at 2; Doc. 44-10 at 17). Resolution of these factual issues is
necessary to determine whether Henry’s return travel time is compensable under
the FLSA. Accordingly, the defendants’ motion for summary judgment on this
claim is due to be denied.
C. Retaliation
The FLSA protects an employee against retaliation for asserting his rights
under the statute. See 29 U.S.C. § 215(a)(3). To establish a prima facie case of
FLSA retaliation, a plaintiff must show the following: (1) he engaged in activity
protected under the FLSA, (2) he subsequently suffered adverse action by his
employer, and (3) there was a causal connection between his protected activity and
the adverse action. Wolf v. Coca-Cola Co., 200 F.3d 1337, 1342-43 (11th Cir.
2000). If the plaintiff makes this prima facie showing, the burden shifts to the
employer to articulate a legitimate, non-retaliatory reason for its adverse action.
See id. If the employer is able to do so, the burden shifts back to the plaintiff to
demonstrate the proffered reason is pretext for retaliation.

See id.; see also

Johnson v. Advertiser Co., 778 F. Supp. 2d 1270, 1277 (M.D. Ala. 2011) (citing
Wolf for proposition that “[i]n the Eleventh Circuit, retaliation claims under the
FLSA are analyzed under the burden-shifting framework employed by courts in
cases brought under Title VII of the Civil Rights Act”). If the plaintiff fails to
demonstrate a genuine dispute as to a material fact regarding pretext, the employer
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is entitled to summary judgment on the retaliation claim. Johnson, 778 F. Supp. 2d
at 1277 (citing Combs v. Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir.
1997)).
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
12

The defendants address this aspect of Henry’s FLSA retaliation claim in their amended brief in
support of their second motion for summary judgment. (Doc. 51 at 26 n.3). Henry, who did not
oppose the filing of the amended brief to address the same (Doc. 49), was given an opportunity
to respond to the defendants’ position (Doc. 50) but did not do so.

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some load/unload time during each of those weeks. (Doc. 44-5 at 62-76). To the
extent Henry claims the defendants eliminated compensation for all load/unload
time on or after September 1, 2015, Henry has conceded he was properly
compensated between that date and his termination on October 26, 2015 (Doc. 38),
as a result of which any such action cannot have been adverse for purposes of
maintaining an FLSA retaliation claim.
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
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does not make his transition to commission-based pay an adverse action.
Moreover, his claim the transition negatively affected his rate of pay is refuted by
evidence he did not contest.

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 basis by dividing his hours for each week
into his compensation for each week. (Doc. 36 at 10). In all but two of those
weeks, Henry’s rate of pay exceeded his $20 hourly rate. (Id.). Henry did not
dispute the accuracy of this calculation (Doc. 38), which formed a basis for the
entry of summary judgment in the defendants’ favor on Henry’s unpaid wages and
overtime claims for the period September 1, 2015, to October 26, 2015 (Doc. 42).
Accordingly, Henry’s transition to commission-based pay was not an adverse
action for purposes of maintaining an FLSA retaliation claim.
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.

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Wells denied he terminated Henry because of any complaints Henry made
regarding pay.

(Doc. 44-3 at 55). Wells testified he terminated Henry for

reasons that included Henry’s lack of communication, which affected scheduling,
and problems with the quality of Henry’s work for which Henry refused to take
responsibility. (Id. at 52-55). These are legitimate, non-retaliatory reasons for
terminating an employee. See Penaloza v. Target Corp., 2012 WL 6721011, at
*10 (M.D. Fla. Dec. 27, 2012) (“Poor job performance . . . is a legitimate, non discriminatory reason for adverse employment action.”), aff’d 549 F. App’x 844
(11th Cir. 2013); Haigh v. Gelita USA, Inc., 632 F.3d 464, x (holding that
employee’s interpersonal and communication problems were legitimate, nondiscriminatory reasons for his termination); Brown v. Ohio State Univ., 616 F.
Supp. 2d 740, 751 (S.D. Ohio 2009) (holding that failure to accept problems within
her responsibility, untimely completion of assignments, and poor communication
are legitimate, non-discriminatory reasons for an employee’s termination), aff’d,
385 F. App’x 486 (6th Cir. 2010). Accordingly, the burden shifts to Henry to
demonstrate a genuine issue of material fact as to whether the defendants’
proffered reasons for his termination are pretext. See Johnson, 778 F. Supp. 2d at
1277.
To demonstrate pretext, a plaintiff “must produce sufficient evidence for a
reasonable fact finder to conclude that a retaliatory reason for the adverse
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employment action is more likely or that each of the employer’s proferred reasons
for the adverse employment action is unworthy of credence.” Id. at 1281 (citing
Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Jackson v. Ala.
State Tenure Comm’n, 405 F.3d 1277, 1289 (11th Cir. 2005); Chapman v. Al
Transport, 229 F.3d 1012, 1037 (11th Cir. 2000)); see also Raspanti v. Four
Amigos Travel, Inc., 266 F. App’x 820, 823-24 (11th Cir. 2008). “ ‘Provided that
the proffered reason is one that might motivate a reasonable employer, an
employee must meet that reason head on and rebut it.’” Raspanti, 266 F. App’x at
824 (quoting Chapman, 229 F.3d at 1030).
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, 124546 (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
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does not dispute the authenticity of these messages. Moreover, Wilkinson testified
Wells was frustrated with Henry’s job performance in that it took Henry longer
than scheduled to complete jobs, which made it difficult to schedule Henry for
jobs, and there were “a lot of problems” on Henry’s jobs. (Doc. 44-10 at 12, 1416).

That Wilkinson personally did not have frustrations with Henry’s

communication (see id. at 16) or receive complaints about the quality of Henry’s
work (see id. at 24) is not sufficiently probative of pretext, given the evidence,
including Wilkinson’s own testimony, Wells was frustrated with Henry’s job
performance for a variety of reasons. This evidence also diminishes any probative
value that could otherwise be assigned to a single incident identified by Henry
where Wells told Henry he suspected “corporate,” not Henry, was to blame for a
problem with one of Henry’s jobs. (See Doc. 46-1 at 2).
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
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within one or two days of termination, was evidence of pretext). However, the
Alabama ReBath policy is peppered with language, some in emphasized font,
making it clear it is not strictly applied (see Doc. 44-4 at 47, 50), and Wells
testified Alabama ReBath had an informal and liberal approach to discipline at the
time of Henry’s employment (Doc. 44-3 at 18-19). For these reasons, that Henry
was not disciplined in accordance with Alabama ReBath’s progressive discipline
policy prior to his termination does not cast doubt on the defendants’ proffered
reasons for that termination.
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
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asked any questions regarding her demotion or that employer refused to provide
her with any answers about her work-related deficiencies), aff’d, 649 F. App’x 774
(11th Cir. 2016). That Wells did not tell Wilkinson he terminated Henry because
of performance issues (see Doc. 44-10 at 28) does not call the defendants’
proffered reasons for Henry’s termination into question given Wells had no
conversation with Wilkinson at all about why Henry was no longer working for
Alabama ReBath (id. at 20).
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
32