Darden v. Southwest Arkansas Development Inc
ORDER denying 50 Motion for Summary Judgment. Signed by Honorable Susan O. Hickey on May 17, 2017. (mll)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
RICKY DARDEN; CAROLYN HAYES;
ANGELA LAFAYETTE; and JARVIS YOUNG
CASE NO. 16-CV-4023
SOUTHWEST ARKANSAS DEVELOPMENT, INC., d/b/a
SOUTHWEST ARKANSAS DEVELOPMENT COUNCIL
Before the Court is Defendant’s Motion for Summary Judgment. ECF No. 50. Plaintiffs
have filed a response. ECF No. 53. Defendant has filed a reply. ECF No. 55. The Court finds this
matter ripe for consideration.
This action was originally filed by Plaintiff Ricky Darden in the United States District
Court for the Eastern District of Arkansas on January 28, 2015, alleging violations of the Fair
Labor Standards Act (“FLSA”) and Arkansas Minimum Wage Act (“AMWA”). ECF No. 1.
Plaintiff Darden subsequently filed a Motion for Rule 23 Class Certification on November 13,
2015, seeking class certification in regard to his AMWA claims. ECF No. 11. The case was later
transferred to the United States District Court for the Western District of Arkansas on March 16,
2016. ECF No. 27. This Court subsequently refused to exercise supplemental jurisdiction over
Plaintiff Darden’s AMWA class claims and dismissed those claims without prejudice on August
3, 2016. ECF No. 30. On that same day, the Court, accordingly, denied Plaintiff Darden’s
Motion for Rule 23 Class Certification as moot. ECF No. 31.
In light of these rulings, the Court gave Plaintiff Darden leave to file a Second Amended
and Substituted Complaint, adding three additional plaintiffs. 1 ECF No. 40. Plaintiffs filed their
Second Amended and Substituted Complaint on December 21, 2016. ECF No. 43. Plaintiffs
allege that Defendant failed to provide proper overtime compensation in violation of the FLSA,
29 U.S.C. §§ 207, et seq., and the AMWA, Ark. Code Ann. §§ 11-4-211, et seq. ECF No. 43, ¶
2. Plaintiffs also contend that they are entitled to punitive damages under the Arkansas Civil
Justice Reform Act (“ACJRA”), Ark. Code Ann. § 16-55-206. Defendant subsequently filed the
instant Motion for Summary Judgment and argues that summary judgment is proper as, based on
the record, there is no genuine issue of material fact. ECF No. 50.
Plaintiffs are former employees of Defendant who were employed as Non-emergency
Medicaid Transportation (“NEMT”) Drivers. ECF No. 51, ¶ 4; ECF No. 54, ¶ 4. In that role,
“Plaintiffs were required to pick up clients from their place of residence, drop clients off at their
medical appointments, wait or pick up additional clients who were on their driver’s manifest and
drop them at their appointments, pick up clients from their appointments upon completion of
their appointment and transport them back to their place of residence.” ECF No. 51, ¶ 14; ECF
No. 54, ¶ 14. Defendant paid each Plaintiff an hourly rate. ECF No. 43, ¶ 21. Defendant provided
each Plaintiff with a cell phone that they were required to carry for the purpose of receiving
dispatches from Defendant and communicating with dispatchers and clients. ECF No. 51, ¶ 10;
ECF No. 54, ¶ 10.
At the end of each day, Defendant gave each Plaintiff a “Driver’s Manifest” (hereinafter
“manifest”) detailing the next day’s schedule. ECF No. 51, ¶¶ 11, 12, 13; ECF No. 54, ¶¶ 11, 12,
13. “The driver’s manifest contained the name of the Defendant’s clients to be transported, the
client’s address, the location of the client’s appointment, the time for their appointment,
Plaintiff Darden had previously filed an Amended Complaint on June 22, 2015. ECF No. 5.
requested pick up times, actual pick up and drop off times, driver’s run start, first pick up[,]
driver’s run end, stop time, break periods, odometer readings, last drop-off, date, and signature
and initial of driver.” ECF No. 51, ¶ 12; ECF No. 54, ¶ 12. Upon receiving the manifest, each
Plaintiff was required to contact the clients listed to confirm their appointment and transportation
needs for the following day. ECF No. 51, ¶ 13; ECF No. 54, ¶ 13.
Defendant had a policy that Plaintiffs, as NEMT drivers, “were allotted a one hour lunch
when [they] worked more than seven hours a day;  were allotted a thirty-minute lunch when
[they] worked between six and six and one-half hours a day; and,  were allotted a break of
fifteen minutes when [they] worked five hours or less a day.” ECF No. 51, ¶ 17; ECF No. 54, ¶
17. Plaintiffs were required to submit an hourly time sheet on a bi-weekly basis, and each time
sheet reflected the same clock-in and clock-out information that was recorded by Plaintiffs on
their individual manifests, and included time taken for lunch, sick leave, administrative time,
holiday time, and vacation time. ECF No. 51, ¶¶ 18, 19; ECF No. 54, ¶¶ 18, 19. Lunch or meal
periods were mandatory and Plaintiffs were required to include their lunch or meal period and
break time taken on their manifest. ECF No. 51, ¶¶ 23, 24; ECF No. 54, ¶ 23, 24.
The present controversy regards two aspects of Plaintiffs’ employment as NEMT drivers.
The first issue concerns the compensability of Plaintiffs’ lunch or break period. Plaintiffs argue
that even though they were required to take an un-compensated lunch or break period and reflect
that time on their time sheets, in reality they were not relieved of their work duties during these
periods. Therefore, Plaintiffs argue, they are entitled to compensation. Defendant takes the
position that these periods were non-compensable because Plaintiffs were free to utilize their
breaks in any way they chose. ECF No. 50, ¶ 26. Furthermore, Defendant states that if Plaintiffs
“did not have the opportunity to take their lunch then they were to report the failed opportunity
to their Transportation Supervisor so that management could ensure they received payment for
their time.” ECF No. 50, ¶ 25.
As for the second issue, Plaintiffs contend that “Defendant’s express policies or
directions required Plaintiffs to make contact with customers while at home, off-the-clock” and
that Plaintiffs should be appropriately compensated for the time spent contacting clients. ECF
No. 53, p. 12. Defendant argues that “no driver was ever instructed to contact clients off-theclock and the greater weight of the evidence in this case dictates a finding that no such approved
policy or practice existed[.]” ECF No. 52, pp. 11-12. Further, Defendant asserts that any off-theclock phone calls would be non-compensable as insignificant or de minimis, based on
Defendant’s analysis of certain phone records. ECF No. 52, p. 12.
Furthermore, Defendant argues that “the March 2015 FLSA investigation by the U.S.
Department of Labor [“DOL”] demonstrates that no genuine issue of material fact exists in this
case and that Defendant is entitled to judgment as a matter of law.” ECF No. 52, p. 14.
Defendant notes that the DOL reviewed Defendant’s practices regarding regular and overtime
pay and determined that Defendant had not violated the FLSA payment provisions. That being
said, Defendant concedes that the DOL findings are not binding on the Court, but urges the Court
to consider the DOL’s investigation and conclusions.
II. LEGAL STANDARD
The Federal Rules of Civil Procedure provide that when a party moves for summary
judgment “[t]he 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). The Supreme Court has issued the following guidelines for trial
courts to determine whether this standard has been satisfied:
The inquiry performed is the threshold inquiry of determining whether there is a
need for trial—whether, in other words, there are genuine factual issues that
properly can be resolved only by a finder of fact because they may reasonably be
resolved in favor of either party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); see also Agristor Leasing v. Farrow,
826 F.2d 732 (8th Cir. 1987); Niagara of Wis. Paper Corp. v. Paper Indus. Union-Mgmt.
Pension Fund, 800 F.2d 742, 746 (8th Cir. 1986). A fact is material only when its resolution
affects the outcome of the case. Anderson, 477 U.S. at 248. A dispute is genuine if the evidence
is such that it could cause a reasonable jury to return a verdict for either party. Id., at 252.
The Court must view the evidence and the inferences that may be reasonably drawn from
the evidence in the light most favorable to the nonmoving party. Enterprise Bank v. Magna
Bank, 92 F.3d 743, 747 (8th Cir. 1996). The moving party bears the burden of showing that there
is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Id. The
nonmoving party must then demonstrate the existence of specific facts in the record that create a
genuine issue for trial. Krenik v. Cnty. of LeSueur, 47 F.3d 953, 957 (8th Cir. 1995). A party
opposing a properly supported motion for summary judgment may not rest upon mere allegations
or denials, but must set forth specific facts showing that there is a genuine issue for trial.
Anderson, 477 U.S. at 256.
As discussed above, the present matter concerns whether Plaintiffs are entitled to
compensation for lunch and break periods and purported off-the-clock client phone calls under
either the FLSA or AMWA. In general, “[t]he FLSA and the AMWA impose similar minimum
wage and overtime requirements on employers and, in cases involving claims brought under both
acts, the courts have concluded that their parallel provisions should be interpreted in the same
manner.” Cummings v. Bost, Inc., 2016 WL 6514103, at *5 (W.D. Ark. Nov. 1, 2016) (quoting
Carter v. Primary Home Care of Hot Springs, Inc., 2015 WL 11120563, at *2 (W.D. Ark. May
14, 2015)). Therefore, the Court will only refer to the FLSA in the proceeding discussion but all
conclusions apply with equal force to Plaintiffs’ AMWA claims. Further, the Court will briefly
address the effect of the DOL’s investigation and findings regarding Defendant’s compensation
A. FLSA and AMWA Claims
The FLSA dictates the minimum wage that an employer must pay employees who work
up to forty hours per week. 29 U.S.C. § 206(a). Further, the FLSA requires employers to pay
overtime pay when an employee works more than forty hours in a workweek. Specifically, the
FLSA states that:
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). Although the FLSA “does not define when an individual should be
considered to be working for purposes of the Act,” the Supreme Court “has defined work as
‘physical or mental exertion (whether burdensome or not) controlled or required by the employer
and pursued necessarily and primarily for the benefit of the employer and his business.’” Henson
v. Pulaski Cnty Sheriff Dep’t, 6 F.3d 531, 533 (8th Cir. 1993) (quoting Tenn. Coal, Iron & R.R.
v. Muscoda Local No. 123, 321 U.S. 590, 598 (1944)).
i. Compensability of Meal and Break Periods
In order to determine whether meal periods are compensable under the FLSA, the Eighth
Circuit has adopted the predominantly-for-the-benefit-of-the-employer standard. Henson, at 534.
“Whether time is spent predominantly for the employer’s benefit or for the employee’s is a
question dependent upon all the circumstances of the case.” Armour & Co. v. Wantock, 323 U.S.
126, 133 (1944). Further, time may be deemed compensable even if an employee is waiting to be
called into service, as the readiness to be called upon may be for the benefit of the employer. See
id. “While there is no precise formula, courts have considered a variety of factors in evaluating
whether employees’ meal break periods are spent for the predominant benefit of their employer.”
Haviland v. Catholic Health Initiatives – Iowa, Corp., 729 F. Supp. 2d 1038, 1061 (S.D. Iowa
2010). “Such factors include: the limitations and restrictions placed upon the employees, the
extent to which those restrictions benefit the employer, the duties for which the employee is held
responsible during the meal period, the frequency in which the meal periods are interrupted, and
whether employees are allowed to resume an interrupted break.” Id.
In Henson v. Pulaski County Sheriff Department, the Eighth Circuit examined two district
court decisions, Henson v. Pulaski County Sheriff Department and Houser v. North Little Rock
Police Department, in a consolidated appeal to determine whether certain law enforcement
officers’ meal breaks were compensable under the FLSA. For the sake of clarity, the Court will
hereinafter refer to the Eighth Circuit’s opinion as Henson or Houser, depending on which
district court decision the court was addressing.
In Houser, the Eighth Circuit found that summary judgment had been proper. Houser, 6
F.3d at 535-36. The court noted that the officers were given a half-hour meal break and that each
officer had to obtain clearance before beginning their break. Officers were allowed to return to
the department and change into civilian clothes in preparation for their break while still on-theclock. Id., at 536. While on break the officers had to “monitor their radios and respond to
emergencies” and were subject to being approached by members of the public in their capacity
as law enforcement officers. Id. However, the court noted that “[m]ost importantly, the officers
may and do tend to personal errands” during their break periods. Id. Based on these facts, the
court found that “these restrictions could not support a finding that the patrol officers spend their
meal breaks predominantly for the benefit of their employer” and that the “officers have a full
thirty minutes to use for their own purposes and in which to travel, subject only to the possibility
of being recalled in an emergency.” Id.
Addressing the appeal from Henson v. Pulaski County Sheriff Department, the Eighth
Circuit found that the grant of summary judgment in favor of the employee deputies was
improper. Henson, 6 F.3d at 537. The court noted that at the trial level, the magistrate judge,
sitting by consent of the parties, had found that:
the deputies must remain on the premises of the jail facility during their thirtyminute meal breaks. If they receive their supervisor’s permission, they may go to
their cars or across the street to a fast food restaurant to pick up an order to bring
back to the jail grounds. During the meal break, the deputies are free to do
“anything they wish” and are relieved of all of their regular duties, which include
supervising and feeding the inmates and maintaining order. The deputies,
however, must respond to any emergency calls that are issued over the jail’s
Id. The Eighth Circuit then stated that:
[t]he extent to which, if any, the stay-on-the-premises requirement benefits the
Department by eliminating the need to hire additional deputies to maintain order
during meal breaks is an issue of material fact to be determined by a jury.
Likewise, the extent to which, if any, the requirement interferes with the deputies’
ability to attend to personal matters during their meal breaks is an issue of
material fact to be determined by a jury.
In the present case, Plaintiffs argue that they should have been compensated under the
FLSA for their time spent on meal breaks, claiming that “Defendant did not completely relieve
Drivers during the hour in which Defendant deducted for lunch or meal time.” ECF No. 43, ¶ 31.
Specifically, Plaintiffs state that they were required to monitor their employer-issued cell phones
during meal breaks and be available to pick up a client at the time the client or dispatcher called,
even if they were not finished with their allotted break time. ECF No. 43, ¶¶ 28, 29. Furthermore,
Plaintiffs claim that “Defendant maintained a policy requiring Plaintiffs to remain nearby clients
after delivering them to their appointment destination.” ECF No. 54, ¶ 26. Plaintiffs also state
that they “often had to pick up and look after clients during their lunch because they transported
multiple clients at a time to staggered appointment times and pick up times” and that they “often
worked through their lunch by staying with and looking after their clients, bringing them to eat
or to the park to wait, or just waiting nearby [for] their clients to get done with appointments.”
ECF No. 53, p. 11. Based on these assertions, Plaintiffs argue that their “lunch periods were
fictitious, but to the extent they existed, they were primarily for Defendant’s benefit.” ECF No.
53, p. 11.
Defendant states that “Plaintiffs were allotted a one hour lunch when Plaintiffs worked
more than seven hours a day; . . . a thirty-minute lunch when Plaintiffs worked between six and
six and one-half hours a day; and . . . a break of fifteen minutes when Plaintiffs worked five
hours or less a day.” ECF No. 51, ¶ 17. Further, while admitting that “Plaintiffs’ lunch or meal
periods were mandatory” and that “Plaintiffs were required to include their lunch or meal period
and break time taken on their driver’s manifest,” Defendant states that if a NEMT driver did not
have the opportunity to take a scheduled break “they were to report the failed opportunity to their
Transportation Supervisor so that management could ensure they received payment for that
time.” ECF No. 51, ¶¶ 23, 24, 25. Defendant further contends that Plaintiffs were to utilize their
break or meal time for their own benefit and “could drive their vans to [places] like the park, the
mall, or to garage sales[.]” ECF No. 51, ¶ 29. Likewise, Defendant claims that it does not have a
policy mandating that NEMT drivers stay close by clients after dropping them off. Defendant
contends that NEMT drivers were simply required to stay within the “geographical area of
Texarkana” when working in Texarkana, Arkansas, and Texarkana, Texas, and within the “local
commuting area of Little Rock” when working in Little Rock, Arkansas. ECF No. 44-1, ¶ 6.
Defendant also states that “Plaintiffs were not required to disrupt their lunch or meal
period or break to drop off or pick up clients” and “were not directed to pick up clients prior to
the completion of Plaintiffs’ lunch or meal period or any other allotted rest period.” ECF No. 51,
¶¶ 26, 27, 28, 29, 34. Defendant has submitted affidavits of Vickie Vital and Karen Morine,
former and current Transportation Supervisors employed by Defendant, attesting to Defendant’s
policies regarding NEMT drivers’ lunch periods. Specifically, Ms. Morine states that:
With regards to lunch times, when a Dispatcher calls to notify a driver that their
client is ready for pickup, our drivers are instructed to tell the Dispatcher that they
are at lunch and the Dispatcher will get another NEMT Driver to pick up the
client. When the Driver finishes their lunch, they are to call back to Dispatch to
find out which Driver/Vehicle picked up the client so that the changes can be
written on their manifest. In the event that the Dispatcher calls to notify a driver
that their client is ready for pickup, and another driver is not in the area or is
unavailable to pick up the client, then the client is to wait until the driver finishes
their lunch break before they are picked up from the medical facility.
ECF No. 55-2. The affidavit of Ms. Vital outlines the same policy and further states that
“dispatchers were not to interrupt or disrupt the lunch hour of NEMT drivers by dispatching
them during their lunch hours.” ECF No. 44-1, ¶ 5. However, Ms. Vital concedes that there are
occasions when a NEMT driver cannot take her scheduled break, but that if a NEMT driver is
not able to reschedule her meal or break period into the current day’s schedule, she is to notify a
supervisor so they can include that period in her working hours. ECF No. 44-1, ¶ 5. In regard to
monitoring their Defendant-issued cell phones during breaks, Defendant admits that “Plaintiffs
were required to monitor their cell phones, however, they [were] not directed or required to
discontinue any lunch break to pick up clients.” ECF No. 51, ¶ 33.
It is undisputed that Plaintiffs were required to keep their Defendant-issued cell phone on
and monitor it throughout the day, including during scheduled meal or break periods. However,
the parties do not agree as to whether Plaintiffs were restricted in where they could go on their
lunch breaks. Likewise, the parties have submitted conflicting affidavits as to whether Plaintiffs
were required to end their meal or break period and proceed to pick up clients when contacted by
the dispatcher or a client. The Court will address each of these issues in relation to the
compensability of Plaintiffs’ meal or break periods in turn.
a. Requirement that Plaintiffs Monitor Defendant-Issued Cell Phones
During Meal and Break Times
Plaintiffs use the fact that they were required to monitor their Defendant-issued cell
phones during their meal or break period as the basis for their argument that, regardless of what
they were doing during a scheduled break period, they were simply waiting for a dispatcher to
call and direct them to pick up a waiting client. Thus, Plaintiffs argue that while on “break” they
were still working in that they were waiting to be called into immediate action, regardless of
whether or not their break period was over. However, the fact that Plaintiffs were required to
monitor their cell phones during their meal or break period is not dispositive. It is noteworthy
that in Houser the Eighth Circuit found that even though officers had to monitor their radios and
respond to emergencies, their meal times were not compensable.
Further, it appears to be undisputed that dispatchers do in fact call NEMT drivers while
they are on their scheduled meal or break periods. However, neither party has put forth evidence
as to the frequency of such calls. If a NEMT driver on average receives one call a week during
his scheduled break that may suggest that NEMT drivers are generally free to use their break as
they see fit. However, if NEMT drivers receive multiple calls from dispatchers during their break
every day that may significantly affect their ability to use meal or break periods for personal
pursuits. Without this key piece of information regarding frequency of such interruptions, it is
difficult to weigh how the fact that Plaintiffs were required to monitor their cell phones
throughout their break times affects the determination of whether those break or meal periods
were compensable. 2 Thus, the Court finds that summary judgment is not appropriate as the
record contains conflicting affidavits and is not sufficiently developed regarding the frequency of
dispatcher and client calls during Plaintiffs’ meal or break periods.
b. Geographical Restrictions During Break or Meal Times
A key issue in determining whether employee break or meals times are compensable
under the FLSA centers around the restrictions placed on the employee during meal or break
times. In the case at bar, the parties disagree as to the extent of the limitations placed on
Plaintiffs. Plaintiffs contend that they were required to stay nearby the location of a client’s
appointment. Likewise, Plaintiffs assert that they were required to end their scheduled break
period when notified by the dispatcher or client that the client was ready to be picked up. If true,
this would necessarily require a NEMT driver to remain relatively close by client appointment
locations. In contrast, Defendants state that Plaintiffs were free to use their break periods to
attend to personal errands like going to the mall or garage sales, or simply driving to a park.
According to Defendant, Plaintiffs’ only geographical limitation was that they were required to
stay in the “geographical area of Texarkana” when working in Texarkana, Arkansas, or
Texarkana, Texas, and within the “local commuting area of Little Rock” when working in Little
Rock, Arkansas. ECF No. 44-1, ¶ 6.
Both parties support their positions with signed statements. ECF No. 41-1, ¶ 5; ECF Nos.
53-2, 53-3, 53-4; ECF No. 44-1, ¶ 6. This issue is significant as, if Plaintiffs are required to stay
nearby clients then their ability to attend to personal matters and errands during their scheduled
break may be hindered. If that is the case, it may suggest that although they were off-the-clock,
The same issue arises in regard to Plaintiffs’ contention that they often had to “babysit” clients during their
scheduled break periods. Plaintiffs make no allegations as to how often they used their breaks to take clients to
meals or the frequency of occasions when they had to take their break while a client was in the van. If NEMT
drivers are expected to take clients with them during their break periods that would likely limit a driver’s ability to
use that break period to attend to personal matters.
they were actually waiting for clients to finish appointments. Therefore, the Court finds that there
is a genuine issue of material fact as to the limitations on where NEMT drivers could go during
their break or meal periods. Accordingly, summary judgment is not appropriate.
c. Requirement that Plaintiffs Return to Duty Upon Dispatcher’s Call
The parties also disagree about whether NEMT drivers were required to end their meal or
break period when notified by a dispatcher or client that a client was ready to be picked up.
Plaintiffs assert that they were required to end their break and resume their duty as a NEMT
driver whenever a dispatcher or client notified them that a client was finished with her scheduled
appointment. In contrast, Defendant contends that NEMT drivers were not required to return to
service upon receiving a dispatcher’s or client’s call, and instead were to inform the dispatcher
that they were taking a scheduled break. According to Defendant, the dispatcher would then
notify the client and advise the client of the projected time the NEMT driver would return to pick
them up. ECF No. 44-1, ¶ 4. Further, clients were also given NEMT drivers’ phone numbers so
the client could call the NEMT driver directly. ECF No. 55-2. Thus, the parties take wholly
opposite positions on this factual issue.
Again, both parties have supported their positions with signed statements. ECF No. 41-1,
¶ 5; ECF Nos. 53-2, 53-3, 53-4; ECF No. 44-1, ¶ 4; ECF No. 55-2. Whether a NEMT driver was
required to drop what he or she was doing during a scheduled break and return to duty upon a
call from a dispatcher or client would likely have a significant impact on whether a NEMT driver
could pursue personal matters during their time off-the-clock. Thus, there appears to be a
genuine issue of material fact as to this issue and, therefore, summary judgment is not
For the foregoing reasons, the Court finds that summary judgment is not appropriate in
regard to whether Plaintiffs’ meal or break times were compensable as genuine issues of material
fact remain. Based on the current record, the Court cannot determine whether Plaintiffs’ meal or
break periods were used predominately for the benefit of Defendant.
ii. Compensability of Off-the-Clock Client Phone Calls
Turning to the issue of whether Plaintiffs were due compensation for alleged off-theclock client calls, the Court also finds that summary judgment is inappropriate. As an initial
matter, it appears to be undisputed that NEMT drivers received their manifest detailing the next
day’s assignments, and were required to call each client, the day before their scheduled
appointments. ECF No. 52, p. 11; ECF No. 53, p. 12.
Defendant states that “while Plaintiffs allege that they contacted clients off-the-clock,
several other NEMT drivers declared that they contacted their clients while on the clock.” ECF
No. 52, p. 11. Defendant also argues that “no driver was ever instructed to contact clients off-theclock and the greater weight of the evidence in this case dictates a finding that no such approved
policy or practice existed at Defendant’s agency.” ECF No. 52, pp. 11-12. Furthermore, Ms.
Vital stated that:
Most, if not all drivers, would remain in their vans and call their clients at the end
of the day. No NEMT driver was ever instructed to call their transportation client
off-the-clock or after hours. Calling clients off-the-clock was not an approved
practice or procedure during my tenure nor was it expected.
ECF No. 44-1, ¶ 7. Ms. Vital further stated that she was never advised of any off-the-clock client
contact practices by any NEMT driver. ECF No. 44-1, ¶ 8. Defendant has also provided signed
statements of sixteen NEMT drivers stating that they did not make client calls off-the-clock. ECF
No. 17. Each NEMT driver declaration states:
I am familiar with the requirement for drivers to contact their clients prior to the
time for transporting them and I have undertaken this responsibility. However, I
have undertaken this requirement during duty time and have not been denied
compensation for undertaking this work.
ECF Nos. 17-5, ¶ 6; 17-6, ¶ 6; 17-7, ¶ 6; 17-8, ¶ 6; 17-9, ¶ 6; 17-10, ¶ 6; 17-11, ¶ 6; 17-12, ¶ 6;
17-13, ¶ 6; 17-14, ¶ 6; 17-15, ¶ 6; 17-16, ¶ 6; 17-17, ¶ 6; 17-18, ¶ 6; 17-19, ¶ 6; 17-20, ¶ 6.
Defendant also claims that, upon examination of some of the Plaintiffs’ phone records, 3
any calls made off-the-clock were “insignificant or de minimis.” ECF No. 52, p. 12. The analysis
of Plaintiffs’ phone records was done by Jeff Cummings, who is employed by Defendant as a
Transportation Supervisor, and his staff. ECF No. 52, p. 12. Defendant does not state whether
this analysis was of Plaintiffs’ Defendant-issued cell phones or personal cell or home phones.
Plaintiffs argue that their purported off-the-clock client contacts are compensable
“because Defendant’s express policies or directions required Plaintiffs to make contact with
customers while at home, off-the-clock.” ECF No. 53, p. 12. Plaintiffs note that Defendant
“maintained a policy or practice of providing each Driver a manifest, which showed the names of
each client for whom each Driver was responsible for providing non-emergency transportation
the next day” and that Defendant “generally gave each Driver a manifest at the end of each
Driver’s shift or otherwise after the Driver returned to the office at the end of all their
transportation duties for the day, on the day prior to the client’s scheduled day of transport.” ECF
No. 53, p. 12. Plaintiffs further state that Defendant “maintained a policy requiring Drivers to fill
out their manifest to match their compensable working time” and required “Drivers to turn in
their manifest for the day that just ended upon finishing their routes, not the next day.” ECF No.
53, p. 12. Plaintiffs also allege that “Defendant maintained a policy requiring Drivers to call each
client on the Client Manifest on the day prior to the scheduled day of transport to remind each
client of their pick up time” and “never instructed Drivers to refrain from calling these clients
after going home, off-the-clock.” ECF No. 53, p. 12. Plaintiffs argue that:
Defendant states that “no detailed records could be provided by” Plaintiffs Lafayette and Youngs’ phone service
providers. ECF No. 52, p. 12. However, Defendant subsequently attached purported copies of both Plaintiff
Lafayette and Plaintiff Youngs’ phone records. ECF Nos. 55-7, 55-8. Defendant does not state whether these records
are for Plaintiffs’ Defendant-issued cell phones or personal phones.
Defendant cannot disclaim knowledge that Plaintiffs and others were working offthe-clock when Defendant knew of and created the circumstances for such work
to occur. If Drivers must enter in a stop time on the current day’s manifest and
must turn in the manifest at the end of that day, but also do not receive the next
day’s manifest until the end of a shift and must call those clients on the day prior
to their trip, then Drivers would be naturally inclined to perform this duty at
home, off-the-clock. No one ever affirmatively told Drivers to refrain from calling
clients while at home, off-the-clock. Defendant did not specifically allot time for
Plaintiffs to make calls during paid times, but required the calls to be made.
ECF No. 53, p. 13.
Finally, Plaintiffs contend that Defendant’s argument that time spent making off-theclock calls was de minimis is meritless, as Defendant has “offered no proof of phone records for
Angela Lafayette or Jarvis Young.” 4 ECF No. 53, p. 13. Further, Plaintiffs have submitted
declarations stating that they spent anywhere from twelve to sixty minutes, respectively, on
average each day making off-the-clock client phone calls. ECF No. 53-1, ¶ 4; ECF No. 53-2, ¶ 8;
ECF No. 53-3, ¶ 8; ECF No. 53-4, ¶ 8. Likewise, Plaintiffs contend that Defendant has not
addressed the fact that Plaintiff Hayes has declared that she did not always use her Defendantissued cell phone to call her next day’s clients. ECF No. 53, p. 13; ECF No. 53-3, ¶ 9.
Upon examination of the parties’ arguments it is clear that there is a material factual
dispute regarding whether or not Plaintiffs were required to make some client phone calls while
off-the-clock. Plaintiffs’ argument that Defendant’s policy of requiring each NEMT driver to
turn in her manifest at the end of her route and then receive her next day’s manifest necessarily
required NEMT drivers to call their clients off-the-clock may have merit. It seems logical that
after turning in a daily manifest and receiving the next day’s manifest, a NEMT driver may have
to make calls after her shift ended, while off-the-clock, in order to comply with Defendant’s
requirement that NEMT drivers confirm the next day’s appointments with clients. However, the
Court notes that, based on the record thus far, it is not clear whether NEMT drivers could simply
Defendant subsequently provided phone records for Plaintiffs Lafayette and Young. ECF Nos. 55-7, 55-8.
record any time spent calling clients after turning in the current day’s manifest on the next day’s
manifest. If NEMT drivers were allowed to do so, it would seem that they could call their clients
at any time after they ended their shift, record that time on the next day’s manifest, and thereby
be compensated for their time spent calling clients. Therefore, the Court finds that, based on the
record before the Court, material factual issues remain regarding whether Plaintiffs were
required to call clients off-the-clock and whether Plaintiffs were compensated for those calls.
Further, there is a material factual issue as to whether Plaintiffs in fact did call clients offthe-clock. Defendants claim that if Plaintiffs called clients after-hours, any off-the-clock calls
would be de minimis. Plaintiffs argue that they spent significant amounts of time calling clients
off-the-clock, with each Plaintiff claiming to have spent from twelve to sixty minutes per day
making uncompensated client calls. Although Defendant has provided some relevant phone
records and statements regarding the analysis of those records, the Court is unable to determine
whether Plaintiffs were compensated for client calls based on these records. Likewise, as
Plaintiff Hayes has stated that she did not always use her Defendant-issued cell phone for client
calls, the record of relevant phone calls is incomplete.
Furthermore, upon review of the manifests that have been entered into the record, it
appears that NEMT drivers often worked somewhat irregular hours, with start times as early as
4:30 a.m. and end times as late as 8:15 p.m. ECF No. 35-2. Therefore, because of the highly
variable schedules of NEMT drivers, a list of phone records, without more, is of little use as
phone calls that would appear to be after-hours may in fact have taken place while a NEMT
driver was still on-the-clock. Thus, in order for the Court or Plaintiffs to undertake a meaningful
examination of those records, Defendants must provide not only phone records, but also
complimentary manifests and time sheets. Only by a detailed examination of Plaintiffs’ phone
records in conjunction with corresponding manifests and time sheets will the Court or the parties
be able to determine whether Plaintiffs actually engaged in off-the-clock client calls and whether
they were compensated for that time. Accordingly, summary judgment on the current record
would be inappropriate and Defendant’s motion should be denied.
B. Effect of Department of Labor Investigation and Conclusions
As previously noted, Defendant concedes that the DOL’s findings are not binding on the
Court. However, the Court certainly agrees with Defendant that generally DOL findings are
entitled to a certain degree of persuasive weight. That being said, the documents in the record
regarding the DOL investigation are significantly redacted and provide little insight into the
scope or depth of the DOL’s investigation or the facts and assertions considered by investigators.
ECF No. 17-21. Therefore, the Court finds that, without more, the DOL’s findings and
conclusions are not very helpful in resolving the matter currently before the Court.
Therefore, for the foregoing reasons, the Court finds that genuine issues of material fact
remain and Defendant’s Motion for Summary Judgment (ECF No. 50) should be and hereby is
IT IS SO ORDERED, this 17th day of May, 2017.
/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?