Large v. Hilton et al

Filing 108

ORDER that Hilton's 85 Motion for Summary Judgment is granted in part and denied in part. Hilton's request for attorneys' fees is denied without prejudice. Hilton's 100 Motion to Strike is granted. Signed by Judge G Murray Snow on 1/9/2013.(LFIG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Robert Large,

No. CV-11-1127-PHX-GMS
Plaintiff,

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v.

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ORDER

Steven Hilton,
Defendant.

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Defendant Steven Hilton has filed a Motion for Summary Judgment against

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Plaintiff pro se Robert Large. (Doc. 85.) The Court grants in part and denies in part the

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Motion for the reasons stated below. Hilton also requests attorneys’ fees in his Motion.

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That request is denied without prejudice. Finally, Hilton filed a Motion to Strike (Doc.

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100) a declaration (Doc. 99) filed by Large. That motion is granted.
FACTUAL BACKGROUND

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Hilton employed Large to conduct a variety of household maintenance tasks,

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landscaping, and automobile detailing for his own home and family. (Doc. 86 ¶¶ 1, 9.)1

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They came to an oral employment agreement. (Id. ¶ 3.) As part of their agreement, Hilton

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advanced $20,000 to Large to purchase a vehicle. (Id. ¶ 16.) They agreed that $300 would

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be withheld from each paycheck until Large paid back the loan in full. (Id.) Large and

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Large did not file a separate statement of facts in his Response in contravention
of Local Rule of Civil Procedure 56.1(a). He did, however, include a “Statement of
Facts” in his Response, which the Court construes as his separate statement of facts. The
citations here are to what appear to be undisputed facts contained Hilton’s Separate
Statement of Facts (Doc. 86) or the record.

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Hilton also agreed that Large would work 40 hours a week, but did not have a set
methodology for reporting hours or requesting overtime. (Id. ¶¶ 3-4.) Nevertheless, a
series of emails between Large and Hilton revealed that Large often worked longer hours,
and told Hilton that was the case. (Doc. 87, Ex. A.) Large never received any overtime
pay for his work.
The relationship was occasionally testy. On one occasion, when Large emailed
Hilton a list of completed tasks and noted that some requested items had not been
finished before the end of the day, Hilton responded by writing “Do the items I ask you to
do before you leave for the day. Period!” (Doc. 38-1, Ex. E.) On another occasion, Large
sent Hilton an email in which he detailed the work he had done that day, mentioned that
he did not believe that standing on the ladder without a spotter was safe, and requested
that for his safety, someone serve as a spotter the next time he was required to clean the
fixtures. (Id., Ex. G). Hilton responded with an email that read, in total, “No one likes a
smart ass. Maybe we should discuss ending our relationship tomorrow. I think I am at the
end of my rope with your attitude.” (Id.) On March 21, 2010, Large sent Hilton an email
detailing the history of how he was hired, that he had never been paid overtime and had
never received a raise, that because he was salaried, he had earned less per hour than the
hourly workers who had been hired to help him on a project in Utah, and that he had been
asked to do much more than the landscaping, detailing, and driving for which he had
originally been hired. (Doc. 38-1, Ex. H.) At some point between the date Large sent this
email and October 6, 2010, Hilton fired him.
Upon termination, Large requested overtime pay. (Doc. 86 ¶ 8.) Large admits,
however, that he still owed Hilton several thousand dollars for the truck. (Id. ¶ 18.) That
debt remains unpaid, and Large is still using the truck. Large looked elsewhere for
employment, eventually applying to work for Craig Jackson. (Id. ¶ 11.) Jackson did not
hire Large. (Id.) Large claims that Hilton told Jackson that Large “hurt one of the
[Hiltons’] children” and that those comments made Jackson worry about Large being
around his son. (Doc. 38 ¶ 50.)

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After he was fired, Large asked whether Hilton would be paying him for unused

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vacation so that he could accurately report to the Arizona Department of Economic
Security whether he had received such funds. Hilton wrote back “I don’t owe you any
vacation. Not sure what you’re talking about.” (Doc. 38-1, Ex. P.) Nevertheless, Hilton
reported to the Arizona Department of Economic Security that he paid Large $980.64 in
“unused vacation, holiday, sick pay, or . . . severance or dismissal pay,” for “the period of
09/23/2010 through 09/30/2010.” (Id., Ex. N.) Large claims he never received those
funds. Large was denied unemployment insurance as a result. (Id.)
At some point, Large brought an action through the United States Department of

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Labor (“DOL”) and rejected a settlement offer from Hilton. (Doc. 38-1, Ex. O.) Large
filed a complaint in this Court on June 6, 2011 (Doc. 1), and amended it on November 3,
2011 (Doc. 38). The Court dismissed a number of claims in the First Amended Complaint
(“FAC”) on April 18, 2012. (Doc. 46.) Hilton moves for summary judgment on all
remaining claims and requests attorneys’ fees. Large filed a Declaration (Doc. 99) almost
one month after this Motion for Summary Judgment became ripe. The declaration
appears to set forth facts in opposition to Hilton’s Motion for Summary Judgment. Hilton
has moved to strike the declaration for failure to comply with the rules. (Doc. 100.)
II.

DISCUSSION
A.

Legal Standard

Summary judgment is appropriate if the evidence, viewed in the light most
favorable to the nonmoving party, demonstrates “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). Substantive law determines which facts are material and “[o]nly disputes over
facts that might affect the outcome of the suit under the governing law will properly
preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). “A fact issue is genuine ‘if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.’” Villiarimo v. Aloha Island Air, Inc., 281 F.3d
1054, 1061 (9th Cir. 2002) (quoting Anderson, 477 U.S. at 248). If the moving party

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bears the burden of proof on the issue at trial, it must “establish all of the essential
elements of the claim or defense for the court to find that [it] is entitled to judgment as a
matter of law.” E.E.O.C. v. Cal. Micro Devices Corp., 869 F. Supp. 767, 770 (D. Ariz.
1994). Thus, the moving party must affirmatively demonstrate that no reasonable trier of
fact could find other than in its favor. S. Cal. Gas. Co. v. City of Santa Ana, 336 F.3d 885,
888 (9th Cir. 2003).
“A party opposing a properly supported summary judgment motion must set forth
specific facts demonstrating a genuine issue for trial.” Whitaker v. Pima Cnty., 640 F.
Supp. 2d 1095, 1100 (D. Ariz. 2009). This rule applies equally to pro se litigants, who are
given significant leeway in other areas, but “are bound by the rules of procedure.”
Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995). Mere allegation and speculation are not
sufficient to create a factual dispute for purposes of summary judgment. Witherow v.
Paff, 52 F.3d 264, 266 (9th Cir. 1995) (per curiam); see also Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986) (the non-moving party “‘must do
more than simply show that there is some metaphysical doubt as to the material facts’”).
B.

Analysis
1.

Motion to Strike

Large filed a Declaration on November 26, 2012, that contains various factual
assertions. (Doc. 99.) This Declaration was not attached to any motion or response to a
motion. Indeed, Hilton’s Motion for Summary Judgment had been fully briefed for
almost a month by that point. If the Declaration was intended to support Large’s
Response to Hilton’s Motion, it was late. The Response, due by October 27, 2012, was
filed on October 12. (Doc. 87.) Hilton now moves to strike the Declaration. (Doc. 100.)
Pro se litigants receive the benefit of the doubt on many matters in federal courts.
Nevertheless, they “are bound by the rules of procedure.” Ghazali, 46 F.3d at 54. The
Court cannot permit a pro se litigant to disregard the published Federal Rules of Civil
Procedure and Local Rules. Large has proffered no reason why he submits the declaration
in the first place, and, assuming it was intended to support his Response, why it was filed

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so late. Consequently, the Declaration is stricken pursuant to L.R. Civ. 7.2(m). The Court
will not consider its contents in deciding this Motion.
2.

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Large’s remaining claims are for overtime pay under the Fair Labor Standards Act
(“FLSA”), reimbursement of expenses, vacation pay, failure to pay within three days
under Ariz. Rev. Stat. § 23-353(A), defamation, blacklisting in violation of Ariz. Rev.
Stat. § 23-1362(A), and intentional infliction of emotional distress. Only the claim under
§ 23-353(A) for failure to pay within three days and the claim for unpaid vacation survive
summary judgment.
a.

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Motion for Summary Judgment

FLSA Overtime

A threshold question before addressing Large’s claim for overtime pay is whether
his employment relationship with Hilton is covered by the FLSA overtime provisions.
Coverage attaches when employees are “engaged in commerce or in the production of
goods for commerce, or . . . employed in an enterprise engaged in commerce.” 29 U.S.C.
§ 207(a)(1). The courts refer to this as “individual” and “enterprise” coverage. Tony &
Susan Alamo Found. v. Sec’y of Labor, 471 U.S. 290, 306 n.8 (1985) (“Employment may
be covered under the Act pursuant to either ‘individual’ or ‘enterprise’ coverage.”). The
burden of establishing individual or enterprise coverage rests on the employee. See Locke
v. St. Augustine’s Episcopal Church, 690 F. Supp. 2d 77, 84 (E.D.N.Y. 2010).
Individual coverage exists if the employee is engaged in commerce. 29 U.S.C.
§ 203(b) defines “commerce” as “trade, commerce, transportation, transmission, or
communication among the several States or between any State and any place outside
thereof.”
Typically, but not exclusively, employees engaged in interstate or foreign
commerce include employees in distributing industries, such as wholesaling
or retailing, who sell, handle or otherwise work on goods moving in
interstate commerce as well as workers who order, receive, pack, ship, or
keep records of such goods; clerical and other workers who regularly use
the mails, telephone or telegraph for interstate communication; and
employees who regularly travel across State lines while working.

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29 C.F.R. § 779.103. Persons performing landscaping, detailing, and maintenance duties
do not qualify as employees engaged in commerce. See Lenca v. Laran Enterprises, Inc.,
388 F. Supp. 782, 784 (N.D. Ill. 1974) (collecting cases finding no FLSA coverage for
landscape and maintenance workers). The duties that Large had do not fit within any
rational construction of the term “commerce.” He cannot therefore claim individual
coverage under the FLSA.
The other way to obtain coverage is to be employed by an enterprise engaged in
commerce. 29 U.S.C. § 203(s) defines an “enterprise engaged in commerce” as one that,
among other things, is run for a common business purpose and has annual gross revenue
of $500,000 or greater. Chao v. A-One Med. Services, Inc., 346 F.3d 908, 914 (9th Cir.
2003); 29 U.S.C. § 203(r)(1) (“‘Enterprise’ means the related activities performed (either
through unified operation or common control) by any person or persons for a common
business purpose.”). Large, however, was employed by Hilton personally and worked at
Hilton’s private residences to support his household. He was not furthering a business
purpose in any direct way. Enterprise coverage is therefore unavailable.
Large asserts that the U.S. Department of Labor determined he was a covered
employee pursuant to 29 C.F.R. § 552.3. (Doc. 38-1, Ex. J.) That section interprets the
term “domestic service employee” found in 29 U.S.C. § 213(a)(15), (b)(21) to mean

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services of a household nature performed by an employee in or about a
private home (permanent or temporary) of the person by whom he or she is
employed. The term includes employees such as cooks, waiters, butlers,
valets, maids, housekeepers, governesses, nurses, janitors, laundresses,
caretakers, handymen, gardeners, footmen, grooms, and chauffeurs of
automobiles for family use.

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29 C.F.R. § 552.3. Section 213, however, describes exemptions to coverage under the

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FLSA: “The provisions of section 207 [maximum hour requirements] of this title shall

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not apply with respect to . . . any employee who is employed in domestic service in a

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household and who resides in such household.” 29 U.S.C. § 213(b)(21). While Large did

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not reside with Hilton and therefore is not covered by this specific exemption, the Court

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cannot see how the reference by the Department of Labor to 29 C.F.R. § 552.3

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establishes that Large is a covered employee when that regulation applies to exemptions
from FLSA coverage.
Because Large has not shown that he is a covered employee under the FLSA, he
cannot assert a claim under its provisions. Summary judgment is granted for Hilton on
the FLSA overtime claim.
b.

Reimbursement of Expenses

Large seeks reimbursement of expenses he incurred while working for Hilton. He
cites 29 C.F.R. § 778.217 as the basis for his claim, but that provision applies to
interpretations of the FLSA. The Court has determined that Large’s employment was not
covered by the FLSA. Nevertheless, the Court will construe his claim to be that he and
Hilton, as part of their employment agreement, agreed that Hilton would reimburse Large
for his expenses. But there is no evidence that expense reimbursement was part of the
employment agreement. Large’s own notes from his conversation—which appear to be
the only memorialization of their arrangement—do not mention expense reimbursement.
(Doc. 38-1, Ex. A.) Because Large has failed to produce any evidence that
reimbursement of expenses was part of his employment agreement with Hilton, no breach
could occur and summary judgment for Hilton on this claim is appropriate.
c.

Vacation Pay

Employers are liable for wages, including vacation pay “when the employer has a
policy or a practice of making such payments.” Ariz. Rev. Stat. § 23-350. In Arizona, an
employer may stipulate in a contract that vacation time must be used or lost at the
termination of employment. Inclusion of such a “use-it-or-lose-it” provision “is legal if
the employee knows or should have known of the policy since the policy becomes part of
the employment contract.” Ariz. Atty. General Op. I80–120 (Jun. 26, 1980). Unless an
employee knows or should have known that he was working under a “use-it-or-lose-it”
contract, “[i]f the employee is unable to use the leave time for various reasons, he is
entitled to compensation for the unused leave time.” Id.
While there is no direct evidence of an agreement between Large and Hilton

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regarding payment of unused vacation, Large has provided sufficient circumstantial
evidence to survive summary judgment. He relies on a statement in a letter from the
Arizona Department of Economic Security (DES) that informed him he was denied
unemployment because Hilton claimed that he paid Large $980.64 “for unused vacation,
sick, or holiday leave, or the receipt of severance or dismissal pay, or payment for
military accrued leave. . . . [during] the period of 9/23/10 through 9/30/10.” (Doc. 38-1,
Ex. N.) Large claims to have never received that payment. (Id.) The ambiguity in the
description of the reason for the $980.64 payment is sufficient to create a genuine issue of
material fact as to whether Hilton and Large agreed that Large would receive accrued
vacation pay at termination. A reasonable jury could examine the document and conclude
that Hilton was trying to have it both ways—claiming to the Department of Economic
Security that he paid Large for vacation while not actually paying him.
To refute Large’s claim, Hilton cites Large’s deposition statement that vacation
time “didn’t roll over. I couldn’t, like hold on to them and take a month off the following
year.” (Doc. 86-1, Ex. A (Large Dep.) at 81:9-22.) There is, however, a difference
between vacation pay not “rolling over” from year to year, such that Large could take
lengthy vacations, and reimbursing for accrued vacation time. Accordingly, summary
judgment on this claim is inappropriate.
d.

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Failure to Pay Wages within Three Days

Large claims that Hilton failed to pay him the wages due within three days of his
termination. Ariz. Rev. Stat. § 23-353(A) provides that “[w]hen an employee is
discharged from the service of an employer, he shall be paid wages due him within
[three] working days or the end of the next regular pay period, whichever is sooner.”2
Section 23-355(A) permits an employee to “recover in a civil action against an employer
or former employer an amount that is treble the amount of the unpaid wages.”
The Parties agree that Hilton paid Large five days after termination. Hilton claims,

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The statute has since been amended to allow seven working days to pay those
wages. Both parties agree that the relative time period at this time was three days.
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however, that § 23-353 is triggered only when wages are not paid out at all. That is
incorrect. The violation is that the employer fails to timely pay the wages due, not that the
employer fails to pay any wage. See Crum v. Maricopa Cnty., 190 Ariz. 512, 513-14, 950
P.2d 171, 172-73 (Ct. App. 1997) (countenancing a claim under § 23-353(A) “because a
portion of [the employee’s] pay was mailed five business days after his discharge and not
delivered, as statutorily required, within three”). Summary judgment is therefore

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inappropriate on this claim.
e.
Defamation and Intentional Infliction of Emotional
Distress

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Large claims that Hilton made defamatory comments about him to a potential

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employer that also amounted to severe emotional distress. Large describes the alleged

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conversation in his FAC: “On 04/25/11, the Plaintiff called Mark from I.D.P.G. to inquire

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about moving forward. Mark called Mr. Craig Jackson [potential employer] and Mr.

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Jackson told Mark, ‘Robb Large is tainted. The Hilton’s [sic] say he hurt one of their

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children and I don’t trust him around my son.” (Doc. 38 ¶ 50.) Large, however, cannot

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rely on the allegations contained in his FAC at this stage of the litigation. His complaint

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was not verified and thus may not be considered an opposing affidavit for purposes of

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summary judgment. Cf. Schroeder v. McDonald, 55 F.3d 454, 460 (9th Cir. 1995)

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(allegations in a verified complaint based upon “personal knowledge of admissible

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evidence” may be used as opposing affidavit under Fed. R. Civ. P. 56). His burden is

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present specific facts that could lead a jury to believe that such a statement was made.

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Hilton has flatly denied making those comments to Jackson. (Doc. 86-2, Ex. B ¶

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5.) More importantly, Jackson also denies speaking with Hilton and states that he chose

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not to hire Large because a better-qualified candidate emerged. (Doc. 86-3, Ex. C ¶¶ 1-5.)

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Hilton has offered no contravening evidence outside of the statement in his Complaint.

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That is insufficient to create a genuine issue of material fact in light of the evidence cited

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by Hilton. Because both the defamation and intentional infliction of emotional distress

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claims rest on the alleged statement by Hilton to Jackson, summary judgment on both

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claims is appropriate in light of the lack of evidence.
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f.

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Large asserts that Hilton blacklisted him in violation of Ariz. Rev. Stat. § 231361(A).3 He has produced no evidence that Hilton in fact engaged in such conduct,
especially in light of the Court’s conclusion with respect to the defamation claim above.
In his Response, Large describes some interaction with regard to “racecars” between
Jackson, Hilton, and some person named Chris Hines. The Court does not see how that
discussion is relevant to a claim for blacklisting. Summary judgment on this claim is
appropriate.
3.

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Request for Attorneys’ Fees

Hilton includes in his Motion for Summary Judgment a request for attorneys’ fees,
claiming that Large pressed his case despite having no evidence. Portions of Large’s case
remain, however, and the Court reserves judgment on the question of attorneys’ fees until
the conclusion of the case. See Ariz. Rev. Stat. §§ 12-349(A), 12-341.01(C). Hilton’s
request is denied without prejudice.
CONCLUSION

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Blacklisting

Summary judgment is appropriate with regard to all claims except the vacation
pay and failure to pay within three days claims. That includes the federal statutory claim
that was the source of this Court’s jurisdiction. The Court has discretion to determine
whether to continue exercising supplemental jurisdiction over the remaining state law
claims. See 28 U.S.C. § 1367(c); Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635,
638-41 (2009) (“A district court's decision whether to exercise that jurisdiction after
dismissing every claim over which it had original jurisdiction is purely discretionary.”) In
light of the relatively advanced stages of this case, the Court exercises its discretion to
retain jurisdiction over the two remaining claims. Large, though a pro se litigant, must

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“Blacklist” means any understanding or agreement whereby the names of any
person or persons, list of names, descriptions or other means of identification shall be
spoken, written, printed or implied for the purpose of being communicated or transmitted
between two or more employers of labor, or their bosses, foremen, superintendents,
managers, officers or other agents, whereby the laborer is prevented or prohibited from
engaging in a useful occupation. Ariz. Rev. Stat. § 23-1361(A)
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follow the rules of procedure and did not put forward sufficient evidence to create a
genuine issue of material fact for the other claims. The declaration he submitted was
untimely and is stricken. Hilton’s request for attorneys’ fees is likewise is denied at this
juncture.
IT IS THEREFORE ORDERED THAT:
1.

Hilton’s Motion for Summary Judgment (Doc. 85) is granted in part and

denied in part.
2.

Hilton’s request for attorneys’ fees is denied without prejudice.

3.

Hilton’s Motion to Strike (Doc. 100) is granted.

Dated this 9th day of January, 2013.

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