Smith et al v. Werner Enterprises, Inc.

Filing 118

ORDER denying 86 Motion for Summary Judgment as to the issue of the applicable workweek; denying 105 Motion to Strike. Signed by Chief Judge William H. Steele on 7/21/2015. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CORNELIUS SMITH, et al.,
Plaintiffs,
v.
WERNER ENTERPRISES, INC.,
Defendant.

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) CIVIL ACTION 14-0107-WS-B
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ORDER

This matter is before the Court on the parties’ motions for partial summary
judgment. (Docs. 86, 93). The parties have filed briefs and evidentiary materials
in support of their respective positions, (Docs. 87-89, 94-95, 99-100, 107-08), and
the motions are ripe for resolution. This order addresses only the issue, made a
basis of the defendant’s motion, of the applicable workweek. After careful
consideration, the Court concludes that the defendant’s motion as to this issue is
due to be denied.
BACKGROUND
This is the second FLSA action brought by plaintiffs employed by the
defendant to provide certain trucking services to a non-party (“Boise”) that
operates a paper mill in Jackson, Alabama. See Pritchett v. Werner Enterprises,
Inc., Civil Action No. 12-0182-WS-C. In Pritchett, as here, the parties disagreed
as to the applicable workweek. The plaintiffs claimed a Monday-Sunday
workweek (resulting in 44 hours of overtime every other workweek on their
normal work schedule), while the defendant asserted a Friday-Thursday workweek
(resulting in eight hours of overtime every other workweek). The parties filed

competing motions for summary judgment on this issue, which the Court denied
after finding genuine issues of material fact. (Id., Doc. 105).
DISCUSSION
Summary judgment should be granted only if “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). The party seeking summary judgment bears “the initial
burden to show the district court, by reference to materials on file, that there are no
genuine issues of material fact that should be decided at trial.” Clark v. Coats &
Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The moving party may meet its
burden in either of two ways: (1) by “negating an element of the non-moving
party’s claim”; or (2) by “point[ing] to materials on file that demonstrate that the
party bearing the burden of proof at trial will not be able to meet that burden.” Id.
“Even after Celotex it is never enough simply to state that the non-moving party
cannot meet its burden at trial.” Id.; accord Mullins v. Crowell, 228 F.3d 1305,
1313 (11th Cir. 2000); Sammons v. Taylor, 967 F.2d 1533, 1538 (11th Cir. 1992).
“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.” Fitzpatrick v. City of Atlanta, 2 F.3d
1112, 1116 (11th Cir. 1993); accord Mullins, 228 F.3d at 1313; Clark, 929 F.2d at
608.
“If, however, the movant carries the initial summary judgment burden ...,
the responsibility then devolves upon the non-movant to show the existence of a
genuine issue of material fact.” Fitzpatrick, 2 F.3d at 1116. “If the nonmoving
party fails to make ‘a sufficient showing on an essential element of her case with
respect to which she has the burden of proof,’ the moving party is entitled to
summary judgment.” Clark, 929 F.2d at 608 (quoting Celotex Corp. v. Catrett,
477 U.S. 317 (1986)) (footnote omitted); see also Fed. R. Civ. P. 56(e)(2) (“If a
party fails to properly support an assertion of fact or fails to properly address
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another party’s assertion of fact as required by Rule 56(c), the court may …
consider the fact undisputed for purposes of the motion ….”).
In deciding a motion for summary judgment, “[t]he evidence, and all
reasonable inferences, must be viewed in the light most favorable to the
nonmovant ….” McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243
(11th Cir. 2003).
There is no burden on the Court to identify unreferenced evidence
supporting a party’s position.1 Accordingly, the Court limits its review to the
exhibits, and to the specific portions of the exhibits, to which the parties have
expressly cited. Likewise, “[t]here is no burden upon the district court to distill
every potential argument that could be made based upon the materials before it on
summary judgment,” Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599
(11th Cir. 1995), and the Court accordingly limits its review to those arguments the
parties have expressly advanced.
“Except as otherwise provided in this section, no employer shall employ
any of his employees … for a workweek longer than forty hours unless such
employee receives compensation for his employment in excess of the hours above
specified at a rate not less than one and one-half times the regular rate at which he
is employed.” 29 U.S.C. § 207(a)(1). The FLSA does not define the term
“workweek.” The Department of Labor (“DOL”) provides the following
guidance:
An employee’s workweek is a fixed and regularly recurring period

1

Fed. R. Civ. P. 56(c)(3) (“The court need consider only the cited materials, but it
may consider other materials in the record.”); accord Adler v. Wal-Mart Stores, Inc., 144
F.3d 664, 672 (10th Cir. 1998) (“The district court has discretion to go beyond the
referenced portions of these [summary judgment] materials, but is not required to do
so.”). “[A]ppellate judges are not like pigs, hunting for truffles buried in briefs,” and
“[l]ikewise, district court judges are not required to ferret out delectable facts buried in a
massive record ….” Chavez v. Secretary, Florida Department of Corrections, 647 F.3d
1057, 1061 (11th Cir. 2011) (internal quotes omitted).

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of 168 hours – seven consecutive 24-hour periods. It need not coincide
with the calendar week but may begin on any day and at any hour of
the day. For purposes of computing pay due under the [FLSA], a
single workweek may be established for a plant or other establishment
as a whole or different workweeks may be established for different
employees or groups of employees. Once the beginning time of an
employee’s workweek is established, it remains fixed regardless of
the schedule of hours worked by him. The beginning of the workweek
may be changed if the change is intended to be permanent and is not
designed to evade the overtime requirements of the Act.
29 C.F.R. § 778.105.
Neither the FLSA nor the DOL regulations specify how a workweek is to
be “established.” E.g., Abshire, v. Redland Energy Services, LLC, 695 F.3d 792,
795 (8th Cir. 2012) (“[T]he FLSA does not prescribe how an employer must
initially establish its ‘workweek’ for overtime purposes ….”). The defendant
argues that its workweek is established (or at least reflected) by its employee
handbook, which provides that “Werner Enterprises’ work week runs from Friday
to Thursday with pay periods every other Friday.” (Doc. 89-4 at 7). It is
uncontroverted that every version of the employee handbook in effect during the
time relevant to this lawsuit contains this provision. (Doc. 89-7).
The plaintiffs attempt to distance themselves from the handbook, pointing
out that some of them were employed by the defendant as over-the-road drivers
before being “transferred to the Boise dedicated service.” (Doc. 100 at 16).
Though their point is obscure, they appear to suggest that the employee handbook
on which the defendant relies did not apply to over-the-road drivers. This may be
correct (the plaintiffs cite no evidence to prove the point), but it is also irrelevant,
because each of the plaintiffs became subject to the employee handbook when
hired for, or transferred into, service of the defendant’s contract with Boise. (Doc.
87 at 3-4 & 4 n. 21).
The plaintiffs lavish most of their energy on an effort to show that, despite
the employee handbook, the defendant in fact established a Monday-Sunday

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workweek as to drivers under the Boise contract. They first cite two ancillary
documents that, correctly, describe the plaintiffs’ work schedule as running
Monday through Sunday. (Doc. 100 at 14-15). Work schedule and workweek,
however, are separate concepts, and there is no logical or legal requirement that
the two be identical. E.g., Johnson v. Heckmann Walter Resources (CVR), Inc.,
758 F.3d 627, 630, 633 (5th Cir. 2014); Abshire, 695 F.3d at 796; Johnson v.
Phoenix Group, LLC, 2013 WL 1345799 at *3 (S.D. Ohio 2013) (because
“regulations make clear that the term ‘workweek’ is not necessarily synonymous
with an employee’s work schedule …, the mere fact that Plaintiffs worked seven
consecutive days, in and of itself, is not evidence that those seven consecutive
workdays constitute the employer’s designated workweek.”).
The plaintiffs’ next argument, based on the FLSA’s recordkeeping
requirements, proves more fruitful.
(a) Items required. Every employer shall maintain and preserve
payroll or other records containing the following information and
data with respect to each employee to whom section 6 or both sections
6 and 7(a) of the Act apply:
…
(5) Time of day and day of week on which the employee’s workweek
begins …,
…
(7) Hours worked each workday and total hours worked each
workweek ….
29 C.F.R. § 516.2(a)(5), (7). The only records produced by the defendant that
could satisfy these requirements, the plaintiffs say, are daily reports, which do not
reflect a Friday-Thursday workweek. Instead, these reports, which include an
employee’s name, his or her start and end time and hours on the clock, appear
uniformly to begin on Monday and end on the next Sunday. (Doc. 100-4). The
plaintiffs conclude that, since the defendant is legally obligated to keep records of
the day and time the workweek begins and of the total hours worked each
workweek, and since the daily reports are the only records that could satisfy this
legal requirement, they are evidence that the defendant established a Monday5

Sunday workweek for them. (Doc. 100 at 15). Even though the Pritchett
plaintiffs raised the same argument, and even though the Court credited that
argument,2 the defendant ignores it. The Court therefore again credits it.
Work under the Boise contract began in May 2010. The plaintiffs argue
that how the defendant paid its drivers under that contract in May 2010 is
inconsistent with a Friday-Thursday workweek and thus established a different,
Monday-Sunday workweek, which the defendant has never effectively altered.
(Doc. 100 at 16-17). The Court agrees that the plaintiffs’ evidence would support
the inferences for which they contend.3
The defendant moves to strike the plaintiffs’ evidence, on the grounds it is
irrelevant since the drivers on whose May 2010 experience they rely are not
plaintiffs in this lawsuit. (Doc. 105). For reasons explained in the preceding
paragraph and accompanying note, the defendant is incorrect; the evidence is
relevant to the workweek the defendant established for the class of employees that
includes the plaintiffs.
The defendant’s only other response to the plaintiffs’ evidence is the
unexplained one-liner that the evidence “does not coincide with a Monday through
Sunday workweek.” (Doc. 107 at 5). “[D]istrict courts should not be expected to
construct full blown claims from sentence fragments,”4 and the Court declines to
guess at how the defendant arrives at its conclusion. In any event, the argument
misses the point. The defendant has moved for a summary judgment establishing
2

(Pritchett, Doc. 105 at 7-8).

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The employee handbook, with its general designation of a Friday-Thursday
workweek, precedes the Boise contract. (Doc. 89-7). Thus, the defendant’s conduct in
May 2010 could have carved out from the handbook’s reach a different workweek for
drivers under the Boise contract, as Section 778.105 permits. Without some clear
subsequent action by the defendant to establish a Friday-Thursday workweek for such
drivers (and the mere continued existence of the handbook could not easily satisfy that
standard), a Monday-Sunday workweek would remain in effect.
4

T.P. ex rel. T.P. v. Bryan County School District, ___ F.3d ___, 2015 WL
4038715 at *5 (11th Cir. 2015).
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the plaintiffs’ workweek as Friday-Thursday, (Doc. 86), so merely showing it is
not Monday-Sunday would fail to show it is instead Friday-Thursday.
The employee handbook reflects pay periods “every other Friday.” (Doc.
89-4 at 7). The defendant presents evidence that, consistent with this statement, it
pays the plaintiffs every other Friday for work in the preceding 14 days. (Doc. 87
at 7-10). The defendant then quotes Johnson for the proposition that “an
employer’s set pay period is prima facie evidence of the employer’s established
workweek.” 2013 WL 1345799 at *3. Even if this is so, “the FLSA does not
specifically require that a pay period and the workweek for FLSA overtime
purposes must coincide,” id., and the defendant does not explain how its pay
period could neutralize the plaintiffs’ evidence that it established a MondaySunday workweek for its drivers fulfilling the Boise contract.
To the extent the parties make additional arguments in support of their
respective favored workweeks, they cannot eliminate the genuine issue of material
fact generated by the matters discussed herein.
CONCLUSION
For the reasons set forth above, the defendant’s motion for summary
judgment as to the issue of the applicable workweek is denied. The defendant’s
motion to strike, (Doc. 105), is also denied.
DONE and ORDERED this 21st day of July, 2015.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

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