Gomley v. Crossmark, Inc.

Filing 53

MEMORANDUM DECISION AND ORDER. IT IS ORDERED: Defendant's Motion for Partial Summary Judgment 42 is GRANTED in part and DENIED in part. Plaintiff's Renewed Motion for Equitable Tolling 43 is GRANTED. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
LISA GOMLEY,
Case No. 1:13-cv-00420-BLW
Plaintiff,

MEMORANDUM DECISION AND
ORDER

v.
CROSSMARK, INC.,
Defendant.

INTRODUCTION
The Court has before it Defendant’s Motion for Partial Summary Judgment (Dkt.
42) and Plaintiff’s Renewed Motion for Equitable Tolling (Dkt. 43). The motions were
argued on March 31, 2015, and taken under advisement. For the reasons explained below,
the Court will grant in part and deny in part Defendant’s Motion for Partial Summary
Judgment. The Court will grant Plaintiff’s Renewed Motion for Equitable Tolling.
BACKGROUND
Plaintiff Lisa Gomley was a named plaintiff in a collective action brought against
her former employer, defendant Crossmark, Inc., alleging violations of the wage and
overtime provisions in the Fair Labor Standards Act (“FLSA”). The action was originally

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filed on February 9, 2011 in the District Court for the Eastern District of Pennsylvania.
During an oral argument on plaintiffs’ collective action certification motion, the
Pennsylvania court tolled the claim from February 9, 2011. The Pennsylvania court
ultimately denied certification on November 14, 2012, but the presiding judge did not set
a deadline for individual plaintiffs to refile their individual complaints.
On January 24, 2013, 71 days after the court denied certification, Gomley filed her
individual complaint in Pennsylvania, alleging the same FLSA violations. Additionally,
Gomley filed a motion to equitably toll the statute of limitations from the date of the
filing of her opt-in form, February 9, 2011. The Pennsylvania court transferred Gomley’s
action to this Court, and denied the motion for equitable tolling without prejudice.
Gomley has since renewed her motion for equitable tolling and amended her
complaint. She seeks damages for unpaid wages, as well as liquidated damages.
Crossmark asks for summary judgment on the following claims: (1) morning commute
time; (2) evening commute time; (3) unpaid straight-time wages (gap time); and (4)
liquidated damages. Crossmark also argues that Gomley’s claims are partially barred by
the statute of limitations.
LEGAL STANDARD
Summary judgment is appropriate where a party can show that, as to any claim or
defense, “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). One of the principal purposes of the
summary judgment “is to isolate and dispose of factually unsupported claims . . . .”

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Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). It is “not a disfavored procedural
shortcut,” but is instead the “principal tool[ ] by which factually insufficient claims or
defenses [can] be isolated and prevented from going to trial with the attendant
unwarranted consumption of public and private resources.” Id. at 327. “[T]he mere
existence of some alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247-48 (1986). There must be a genuine dispute as to any material fact – a fact
“that may affect the outcome of the case.” Id. at 248.
The evidence must be viewed in the light most favorable to the non-moving party,
and the Court must not make credibility findings. Id. at 255. Direct testimony of the
non-movant must be believed, however implausible. Leslie v. Grupo ICA, 198 F.3d
1152, 1159 (9th Cir. 1999). On the other hand, the Court is not required to adopt
unreasonable inferences from circumstantial evidence. McLaughlin v. Liu, 849 F.2d
1205, 1208 (9th Cir. 1988).
The moving party bears the initial burden of demonstrating the absence of a
genuine dispute as to material fact. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir.
2001)(en banc). To carry this burden, the moving party need not introduce any
affirmative evidence (such as affidavits or deposition excerpts) but may simply point out
the absence of evidence to support the nonmoving party’s case. Fairbank v. Wunderman
Cato Johnson, 212 F.3d 528, 532 (9th Cir. 2000).

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This shifts the burden to the non-moving party to produce evidence sufficient to
support a jury verdict in her favor. Deveraux, 263 F.3d at 1076. The non-moving party
must go beyond the pleadings and show “by her [ ] affidavits, or by the depositions,
answers to interrogatories, or admissions on file” that a genuine dispute of material fact
exists. Celotex, 477 U.S. at 324.
ANALYSIS
1.

Summary Judgment
a) Morning Commute Time
Crossmark argues that Gomley cannot recover for her morning commute time

between her home and her work because Crossmark did not control her activities, which
allowed Gomley to use that time for her own purposes. Def.’s Reply in Supp. of Mot.,
Dkt. 49, at 2. Crossmark further argues that it did not require Gomley to perform her
administrative duties immediately before her morning commute, relieving Crossmark
from any duty to pay Gomley for morning commute time. Def.’s Mem. in Supp. of Mot.,
Dkt. 42, Ex. 1, at 7.
Congress created the FLSA “to protect all covered workers from substandard
wages and oppressive working hours.” Adair v. City of Kirkland, 185 F.3d 1055, 1059
(9th Cir. 1999) (internal citation and quotations omitted). “The FLSA’s minimum wage
and overtime provisions are central among the protections the Act affords to workers.”
Id.

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Generally, ordinary home-to-work travel is not compensable under the FLSA. See
Rutti v. Lojack Corp., Inc., 596 F.3d 1046, 1054 (9th Cir. 2010). The Portal-to-Portal Act,
an amendment to the FLSA, clarifies this general rule by relieving an employer from
compensating an employee for travel “to and from the actual place of performance of the
principal activity or activities which such employee is employed to perform,” and for
“activities which are preliminary to or postliminary to” the employee’s principal
activities. 29 U.S.C. § 254(a)(1)-(2). Accordingly, an employee shall only be
compensated for off-the-clock activities which are related to her “principal activities” for
her employer, provided that these activities are not de minimis. See Rutti, 596 F.3d at
1055. Thus, if off-the-clock administrative tasks are non-de minimis, and constitute
principal activities, the tasks are part of the workday pursuant to the continuous workday
doctrine, making morning commute time after completing such tasks compensable. See
Perez v. Mountaire Farms, Inc., 650 F.3d 350, 363 (4th Cir. 2011).
The definition of “principal activities” warrants a liberal construction, and
includes activities “performed as part of the regular work of the employees in the
ordinary course of business.” Id. at 1056 (internal citation and quotations omitted).
Specifically, the Supreme Court has held that “any activity that is ‘integral and
indispensable’ to a ‘principal activity’ is itself a principal activity.’” IBP, Inc. v. Alvarez,
546 U.S. 21, 37 (2005). Moreover, in determining whether an activity is a principal
activity, the court considers “the extent to which the work impacts the employee’s
freedom to engage in other activities.” Id.

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Here, Crossmark required Gomley to perform certain tasks each morning. She was
required to check work e-mails, sync a handheld device provided by Crossmark to verify
the stores she would travel to that day, organize store folders, and load her car before she
attended her first appointment. These activities constitute non-de minimis, principal
activities. Indeed, such activities are integral and indispensable to Gomley’s job. Gomley
simply could not attend her first appointment without first completing these tasks. And
while Gomley may have had time to occasionally stop for a coffee during her commute to
her first appointment after completing these tasks, her freedom to engage in non-work
activities was limited by a scheduled first appointment of the day.
Crossmark nevertheless argues that it did not require Gomley to perform these
tasks immediately before her morning commute to her first job site. Instead, Crossmark
suggests that Gomley could have performed these tasks the night before work, several
hours before she had to leave for her first appointment, or possibly in her parked car in
front of her first job site. This would have given Gomley free time between when she
performed the tasks and her first appointment of the day.
In support of this argument, Crossmark cites to 29 C.F.R. § 785.16, which
provides that “[p]eriods during which an employee is completely relieved from duty and
which are long enough to enable him to use the time effectively for his own purpose are
not hours worked.” 29 C.F.R. § 785.16. Thus, if Crossmark did not require Gomley to
perform administrative tasks immediately before her morning commute, then she was
“completely relieved from duty” until she arrived at her first appointment of the day.

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Crossmark further points to three separate court orders – all of which granted the
defendant’s motions for summary judgment on the morning commute time claims for
other individuals originally part of Gomley’s proposed class. Garcia v. Crossmark, Inc.,
No. 13-CV-0693-MV-LAM (D. N.M. Mar. 26, 2015); Bettger v. Crossmark, Inc., No.
1:13-CV-2030, 2014 WL 2738536 (M.D. Pa. June 17, 2014); Roath v. Crossmark, Inc.,
4:13-CV-00758-BCW (W.D. Mo. Sept. 26, 2014). However, in two of those cases, the
court found insufficient evidence that Crossmark required the plaintiff to complete
administrative tasks immediately before leaving home for the morning commute. Bettger,
No. 1:13-CV-2030, 2014 WL 2738536 at *6; Roath, 4:13-CV-00758-BCW at *8. In the
third, the court did not indicate whether sufficient evidence existed. Garcia, No. 13-CV0693-MV-LAM. But, in precluding compensation for morning commute time, the court
in Garcia cited to a Second Circuit case which “explain[ed] that because the ‘record
indicates only that it might have been necessary to perform certain activities in the
morning . . .,’ commuting time was not compensable under the FLSA.” Garcia, No. 13CV-0693-MV-LAM at *5 (quoting Kuebel v. Black & Decker Inc., 643 F.3d 352, 360-61
(2nd Cir. 2011). The court in Kuebel affirmed the defendant’s motion for summary
judgment because the record lacked any evidence that the plaintiff “was required to
perform [certain activities] immediately before leaving home. Kuebel, 643 F.3d at 361.
Moreover, another case which was originally part of Gomley’s same proposed
collective action suggests that it is inappropriate to grant summary judgment when a
plaintiff provides evidence that she was required to perform administrative tasks

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immediately before starting her morning commute. Bowman v. Crossmark, Inc., No.
3:09-CV-16, 2012 WL 2597875, at *8 (E.D. Tenn. July 5, 2012). In Bowman, the court
noted that the plaintiff “submitted a declaration in which she [made] statements
concerning written and verbal instructions given to her concerning when she was to
perform administrative tasks and how quickly.” Id. Such evidence created an issue of fact
that she was required to perform such tasks immediately before her morning commute,
which led the court to deny summary judgment.
Gomley’s case is more akin to Bowman. In her deposition, Gomley states that
Crossmark instructed employees to sync their handhelds and check their e-mails before
commuting to the first store in the morning. Gomley Dep., Dkt. 42, Ex. 12, at 87, 88
(“Before we left the house, we had to sync our handheld, we had to check email, we had
to make sure we had everything with us. Yes, it was before we left the house.”; “We were
instructed to sync our handheld before we left, and check our emails before we left to see
if there were any issues.”). Gomley’s testimony creates at least a genuine dispute of
material fact about whether Crossmark required Gomley to perform administrative tasks
immediately before leaving for her morning commute. In fact, Crossmark’s suggestion
that Gomley could have done her tasks the night before, in the middle of the night or very
early morning hours, or possibly in her car, is neither supported by the record before the
Court, nor does it seem particularly realistic. Accordingly, the Court will deny summary
judgment on the morning commute time.

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The Court recognizes that Gomley conceded that she could have accomplished her
administrative tasks from a location other than her home, and in fact did so when she was
out of town. But there is simply no evidence that another option was plausible when she
began her day at home. There is no evidence that Gomley had, or was required to have, a
wi-fi enabled car. And beginning her commute, then stopping at a library, coffee shop,
café, or other place with wi-fi or the other necessary technology to sync her device and
check e-mails seems unrealistic.
b) Evening Commute Time
Gomley asks for leave to amend her complaint to add a claim for evening
commute time. Generally, a motion to amend is analyzed under Rule 15(a). Rule 15(a) is
a liberal standard and leave to amend “shall be freely given when justice so requires.”
AmerisourceBergen Corp. v. Dialysist West, Inc., 465 F.3d 946 (9th Cir. 2006). However,
where a party seeks to amend a pleading after the deadline to amend pleadings set forth in
the court’s scheduling order has passed, Rule 16(b)’s “good cause” standard applies.
Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992).
The “good cause” standard “primarily considers the diligence of the party seeking
the amendment.” Id. “[C]arelessness is not compatible with a finding of diligence and
offers no reason for a grant of relief.” Id. The existence of prejudice to the opposing party
may supply additional reasons to deny a motion, but the real focus of the inquiry is upon
the moving party’s reasons for seeking the amendment. Id. “If that party was not diligent,
the inquiry should end.” Id.

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Here, the Court’s CMO set September 4, 2014 as the deadline to amend pleadings.
Not until her February 9, 2015 response to Crossmark’s Motion for Summary Judgment
did Gomley ask for leave to amend her complaint to add the evening commute time
claim. Gomley waited until her response brief to ask for the amendment even though
Crossmark stated at her December 8, 2014 deposition that she had not pled such a claim.
Gomley Dep., Dkt. 42, Ex. 12, at 190.1 In fact, Gomley filed her first Amended
Complaint just 9 days after her deposition, but still failed to specifically plead facts for an
evening commute time claim. Under these circumstances, the Court finds that Gomley
was not diligent in timely asserting an evening commute time claim.
Moreover, to ask Crossmark to address a claim first asserted in a response to
Crossmark’s motion for summary judgment would likely create another round of
briefing, which would prejudice Crossmark. Although unnecessary to the Court’s
determination, such prejudice supplies additional reasons to deny the motion. Id.

1

Crossmark represented to the Court that it “did not ask Ms. Gomley about [evening commute
time]” in her deposition, so it would be unfair and prejudicial to allow Gomley to now plead evening
commute time. Def.’s Reply in Supp. of Mot., Dkt. 49, at 6. The deposition transcript appears to indicate
otherwise. Gomley Dep., Dkt. 42, Ex. 12, at 190-96, 238 (“I can’t find anywhere in your lawsuit where
you allege that you were not paid for drive time in the evening; that is, driving from your last store of the
day to your home. Are you telling us now that that’s part of your lawsuit, too?”; “How much time in the
evening, if any, do you believe that you underreported or didn’t report for performing administrative
tasks?”; “Are you claiming that you had drive time on the way back from your last store visit that you did
not report?”). Still, had the evening commute time claim been specifically pled, Crossmark may have
questioned Gomley in more depth about the issue. Under a Rule 15 analysis, this would have made the
motion to amend a closer call. However, as explained above, under Rule 16 the real issue is Gomley’s
diligence.

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Finally, to the degree Gomley claims that she did not need to specifically plead
evening commute time – she only needed to state facts that demonstrate she was not paid
overtime for all hours worked over forty hours – the Court disagrees. In her complaint,
Gomley stated specific facts for a morning commute time claim, which put Crossmark on
notice that she was asserting that claim. Pl.’s Am. Comp., Dkt. 40, ¶ 24 (“Defendant
never paid Plaintiff wages for the time she spent driving to her first assignment of the day
unless the drive exceeded forty (40) miles or took more than one hour”). But she did not
plead specific facts for an evening commute time claim. Instead, she merely alleged that
“Defendant did not fully compensate her for all the time she spent working on [] end-ofday reporting tasks.” Pl.’s Am. Comp., Dkt. 40, ¶ 25. This allegation seeks recovery for
performing tasks – not recovery for commute time. Asking Crossmark to assume that
Gomley was asserting an evening commute time claim, even though she specifically
asserted facts about a morning commute claim but not an evening commute claim, is not
proper notice. Accordingly, to the extent Crossmark seeks summary judgment on evening
commute time claim, the Court will grant the motion. Moreover, the Court will deny
Gomley leave to amend her complaint to add such a claim.
c) Gap Time Wages
“Gap time” refers to “uncompensated hours worked that fall between the
minimum wage and the overtime provisions of the FLSA.” Adair, 185 F.3d at 1062.
Essentially, gap time “is non-overtime hours worked for which an employee is not
compensated.” Davis v. Abington Mem’l Hosp., 765 F.3d 236, 244 (3rd Cir. 2014). Some

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courts have distinguished between two types of gap time – pure gap time and overtime
gap time. See, e.g., Monahan v. County of Chesterfield, Va., 95 F.3d 1263, 1280 (4th Cir.
1996). As explained below, Gomley is not entitled to recover either pure gap time or
overtime gap time.
Regarding the first type of gap time, the prevailing view is that “pure gap time
claims – straight time wages for unpaid work during pay periods without overtime – are
not cognizable under the FLSA, which requires payment of minimum wages and
overtime wages only.” Id. at 244. See also Nakahata v. New York-Presbyterian
Healthcare Sys., Inc., 723 F.3d 192, 201-02. (2nd Cir. 2013) (“the FLSA does not
provide a cause of action for unpaid gap time”); Monahan, 95 F.3d at 1280 (“there is no
cause of action under the FLSA for pure gap time when there is no evidence of a
minimum wage or maximum hour violation by the employer”); Hensley v. MacMillan
Bloedel Containers, Inc., 786 F.2d 353, 357 (8th Cir. 1986). The Ninth Circuit has not
directly addressed pure gap time, but this Court agrees with the clear weight of authority.
An employee may not recover pure gap time wages under FLSA.
The more difficult question is whether the FLSA allows recovery for overtime gap
time. The two circuits which have addressed the issue – the Second and the Fourth –
reached different conclusions. In Monahan, the Fourth Circuit held that while pure gap
time is always precluded under the FLSA, an employee may recover overtime gap time if
an employee exceeds the overtime threshold and the employment contract does not

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expressly or implicitly compensate an employee for non-overtime hours. Monahan, 95
F.3d at 1273.
The Second Circuit, on the other hand, held that an employee may not bring a gaptime claim under the FLSA “even when an employee has worked overtime.” Lundy v.
Catholic Health Sys. of Long Island Inc., 711 F.3d 106, 116 (2nd Cir. 2013). The Second
Circuit reasoned, “the text of FLSA requires only payment of minimum wages and
overtime wages. It simply does not consider or afford a recovery for gap-time hours.” Id.
Lundy expressly rejected Monahan, finding the case unpersuasive because it relied on
interpretive and “unreasoned” guidance from the Department of Labor. Id. at 116-17.
Specifically, Lundy critiqued 29 C.F.R. § 778.315. Id. In discussing the FLSA pay
requirement for time-and-a-half, § 778.315 states that “[t]his extra compensation for the
excess hours of overtime under the Act cannot be said to have been paid to an employee
unless all the straight time compensation due him for the nonovertime hours under his
contract (express or implied) . . . has been paid.” 29 C.F.R. § 778.315. Lundy noted that
this section “suggests that an employer could violate FLSA by failing to compensate an
employee for gap time worked when the employee also works overtime; but the
Department of Labor provides no statutory support or reasoned explanation for this
interpretation.” Id. at 117. Finding no persuasive support to rule otherwise, and rejecting
Monahan, the court in Lundy affirmed the dismissal of the plaintiff’s overtime gap time
claim. Id.

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The Court agrees with the Second Circuit’s ruling. The plain language of the
FLSA does not encompass gap time pay – whether it be pure gap time or overtime gap
time. As such, the Court will grant summary judgment on this issue. In so holding, the
Court notes that Gomley is not without a remedy. Virtually every state provides some
type of statutory relief, including some form of liquidated damages, for employees who
are not paid the wages to which they are contractually entitled. See. e.g., IDAHO CODE §
45-615 (authorizing a civil suit to recover unpaid wages and permitting the recovery of
costs, attorney’s fees and treble damages).
d) Liquidated Damages
Crossmark requests summary judgment on Gomley’s claim for liquidated
damages, suggesting that liquidated damages may only be awarded for unpaid overtime
wages. The Court’s decision to grant summary judgment to Crossmark on gap time wage
claims renders the liquidated damages issue moot because any recovery by Gomley will
be limited to unpaid overtime wages, for which liquidated damages are available.
2.

Equitable Tolling of the Statute of Limitations
The statute of limitations for an FLSA action is two years, unless the employee

can show a willful violation, in which case the limitation period is extended to three
years. 29 U.S.C. § 255(a). Crossmark argues that because of the statute of limitations,
Gomley may only recover for claims arising from pay periods on or after April 21, 2008
(with a showing of willfulness) and April 21, 2009 (without a showing of willfulness). As

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explained below, the Court concludes that statute of limitations is equitably tolled in this
case, and will therefore deny Crossmark’s motion for summary judgment on this issue.
Gomley filed a motion for equitable tolling, arguing that the statute of limitations
should be equitably tolled from November 14, 2012, when the Pennsylvania court denied
certification of the collective action, through January 24, 2013, when Gomley filed her
individual action. A statute of limitations may be equitably tolled when (1) the plaintiff is
prevented from asserting a claim by the defendant’s wrongful conduct or (2)
extraordinary circumstances beyond the plaintiff’s control made it impossible to file a
claim on time. Stoll v. Runyon, 165 F.3d 1238, 1242 (9th Cir. 1999) (citation omitted).
The doctrine of equitable tolling “is extended sparingly and only where claimants
exercise diligence in preserving their legal rights.” Irwin v. Dep't of Veterans Affairs, 498
U.S. 89, 96 (1990).
The 71-day window between denial of class certification and the filing of
Gomley’s individual action is a reasonable amount of time for Gomley to re-file her
complaint. Moreover, in denying class certification, the Pennsylvania court did not set a
specific deadline for the proposed class members to file their individual complaints. The
lack of a deadline put Gomley in a difficult situation – was she expected to re-file that
day, the next day, the next week, etc.? Under these circumstances, 71 days was
reasonable, and the Court finds that Gomley exercised diligence in preserving her legal
rights. Accordingly, the Court will grant Gomley’s motion to equitably toll the statute of

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limitations from November 14, 2012, through January 24, 2013. Thus, Gomley’s claims
are not barred by the statute of limitations.
ORDER
IT IS ORDERED:
1.

Defendant’s Motion for Partial Summary Judgment (Dkt. 42) is
GRANTED in part and DENIED in part.

2.

Plaintiff’s Renewed Motion for Equitable Tolling (Dkt. 43) is GRANTED.

DATED: April 22, 2015

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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