FURGASON v. PROTEUS PROS et al

Filing 76

FINDINGS OF FACT AND CONCLUSIONS OF LAW- The Court finds that the Defendants are jointly and severally liable to Plaintiff Furgason for unpaid overtime. Additionally, the Court finds that the Defendants are jointly and severally liable to Plaintiff Wharton for unpaid overtime (See Order). Signed by Magistrate Judge Mark J. Dinsmore on 9/16/2014.(CBU)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

WRAY L. FURGASON,

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Plaintiff,
vs.
JAMES FURRER,
PROTEUS PROS, LLC,
Defendants.

No. 1:12-cv-00738-MJD-RLY

FINDINGS OF FACT AND CONCLUSIONS OF LAW
The Court began a bench trial in this action on January 27, 2014, which, when Plaintiff Wray
Furgason fell ill, was continued to April 24, 2014. Plaintiffs Wray Furgason and Michael Wharton were
present in person and by counsel Robert Kondras. Defendants James Furrer and Proteus Pros, LLC d/b/a
Mr. Handyman (“Mr. Handyman”) were present in person, by Defendant Furrer, and by counsel Steven
Sams.
Plaintiffs brought their individual actions against the Defendants to recover unpaid overtime
compensation and statutory damages pursuant to the Fair Labor Standards Act (FLSA) and the Indiana
Minimum Wage Law (IMWL). [See Dkt. 1; No. 1:11-cv-01222-TWP-DKL Dkt. 1.] The Court, in
response to cross motions for summary judgment in Plaintiff Furgason’s case, ruled that (1) the IMWL,
and not the FLSA, apply to Plaintiff Furgason’s claims, (2) the Court retains supplemental jurisdiction
over the IMWL claims, (3) Plaintiff Furgason at no point waived his right to sue Defendants pursuant to
the IMWL, and (4) Plaintiff Furgason was not paid the overtime due to him under the IMWL on at least
one work week. [Dkt. 54.] In January of 2014, the Court severed Plaintiff Wharton’s wage claim from
his other claims, consolidating said claim with Plaintiff Furgason’s wage claim. [Dkt. 59.] All parties
then consented to the jurisdiction of the Magistrate Judge for the purposes of conducting a bench trial on
the remaining issues of the matter, namely the extent of damages owed to the Plaintiffs pursuant to the

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IMWL. [Dkt. 63.] Having heard testimony and considered the exhibits and arguments of counsel, the
Court makes the following Findings of Fact and Conclusions of Law 1 pursuant to Federal Rule of Civil
Procedure 52.
I. Findings of Fact
Mr. Handyman is a home repair business headquartered in Indianapolis, Indiana. Defendant
Furrer is the owner, sole member, and sole manager of Proteus Pros, LLC, doing business as Mr.
Handyman. As such, Defendant Furrer makes all the employment decisions, determines all employees’
hours and wages, and has operational control over his business.
Plaintiff Furgason worked as a “technician” (handyman) for Mr. Handyman from February 28,
2011 through January 27, 2012. From February 28, 2011 through October 29, 2011 Plaintiff Furgason
was paid a “salary” of $700 per week, regardless of the number of hours he worked. Plaintiff Wharton
also worked as a technician for Mr. Handyman during this time period, from April 10, 2011 through
August 4, 2011, and was paid the same “salary.” In exchange for this “salary,” Plaintiff Furgason and
Defendant Furrer testified that it was an understood expectation that each technician would average a 45hour work week.
Defendant Furrer does not contest the finding of liability against him made in the District Judge’s
Order granting partial summary judgment. It was not until Plaintiff Wharton filed his lawsuit in the fall
of 2011 that Mr. Furrer knew that his technicians were not exempt from receiving overtime pay when
they worked more than 40 hours in one week. Accordingly, on October 30, 2011, Mr. Furrer began
paying his technicians, including Plaintiff Furgason, $15 per hour for up to 40 hours per week and then
$22.50 per hour of overtime. Prior to October 29, 2011, however, Defendant Furrer did not have a
timekeeping method that tracked each hour worked by his technicians.

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Any finding of fact that is more properly considered a conclusion of law is adopted as such. Similarly, any
conclusion of law that is more properly considered a finding of fact is so adopted.

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Plaintiff Furgason testified that, on a typical day from February 28, 2011 through October 29,
2011, he received a call from Mr. Furrer at 6:30 am to receive his assignment(s) for the day, which call
lasted from twenty to thirty minutes. He then, as needed, was required to get certain fuel for the takehome work truck, which fuel was located fifteen minutes from where he lives, and was not always on the
way to the first site, at which he had to arrive by 7:45 a.m. Throughout his time working for Mr.
Handyman, Plaintiff Furgason worked at sites located throughout Hamilton, Boone, Johnson, and Marion
Counties in Indiana. Mr. Handyman also required the technicians to buy supplies from certain stores,
which were not always conveniently located, and to take debris to a dumpster that was located near
Zionsville, Indiana. Generally, there were two assignments each day, with the first lasting from 8:00 a.m.
through 12:00 p.m. and the second from 1:00 p.m. through 5:00 p.m. Although Mr. Furrer permitted his
technicians to take a lunch break, Plaintiff Furgason testified that he was often on the road during that
hour, having to clean out the truck and buy more supplies, when necessary. After leaving the last work
site, Plaintiff Furgason was required to deliver the billing records to the Mr. Handyman office in
Washington Township, Marion County, Indiana before returning home each Monday, Wednesday, and
Friday. On average, Plaintiff Furgason testified that he did not arrive home until 6:00 p.m. or later.
Plaintiff Wharton then testified that his experience as a full-time technician for Mr. Handyman
from April 10, 2011 through July 23, 2011 was quite similar to that of Plaintiff Furgason. As a technician
for Mr. Handyman, Plaintiff Wharton worked as a handyman (fixed siding, re-caulked showers, repaired
windows, etc.) and also performed preparatory and administrative functions (fueled the truck, submitted
paperwork, picked up materials, etc.). Plaintiff Wharton testified that he received a call from Mr. Furrer
every morning between 6:00 a.m. and 7:00 a.m. that lasted from five to fifteen minutes. Plaintiff Wharton
also serviced homes located in Boone, Montgomery, Hamilton, Hendricks, and Marion Counties in
Indiana during his time at Mr. Handyman, with the same two-assignment workday as described by
Plaintiff Furgason. In sum, Plaintiff Wharton testified that he usually began his workday around 7:00
a.m. and ended his workday at about 6:00 p.m., for an average of 55 hours per week.

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In support of these claims, Plaintiffs presented a sampling of GPS records as evidence of their 55hour work weeks, emphasizing Plaintiff Furgason’s GPS records from the week of June 19, 2011 through
June 25, 2011 when he worked “at least 54 hours and 37 minutes.” [See. Dkt. 75-1 at 3-4.] However, the
GPS records do not tell the whole story, as Mr. Furrer did not have the GPS systems installed in the
trucks until June of 2011, and the GPS records do not include any time not on the road, such as
organizing and cleaning the trucks or receiving their assignments from Mr. Furrer over the phone. On
cross examination, Defendants pointed out that there were several days where it seemed that Plaintiff
Furgason was parked at home throughout the day, but Plaintiff Furgason testified that one assignment was
at a house down the street from his own, and Mr. Furrer did not present any billing records or other
evidence to contradict that testimony. Additionally, Defendants made similar observations during cross
examination of Plaintiff Wharton for days at the end of July 2011, but Plaintiff Wharton was injured on
the job on about July 19, 2011 and is only claiming damages through the pay period ending July 23, 2011.
Defendant Furrer then testified in his defense and in defense of Mr. Handyman. Mr. Furrer
confirmed that he hired Plaintiffs Furgason and Wharton as “salaried” employees at $700 per week for 45
hours of work each week, with no overtime pay. On cross examination, Mr. Furrer could not present a
“traditional timecard” to represent when his technicians’ workdays began and ended prior to October 30,
2011. Nor did Mr. Furrer present the telephone records to confirm the times or lengths of his morning
calls or any evening calls, even though he testified that Plaintiffs were supposed to call him upon leaving
the last site of the day. Mr. Furrer presented billing records as evidence of Plaintiffs’ hours worked, but
he admitted that such records do not reflect any time Plaintiffs performed work-related activities off the
work site premises.

II.

Credibility Determination

The Court recognizes that some of the foregoing findings are based on controverted evidence.
The Court accepts the testimony of both Plaintiff Furgason and Plaintiff Wharton to the extent that their
testimony is in agreement. However, the Court does not accept Plaintiff Furgason’s claim that the

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morning call from Mr. Furrer lasted twenty to thirty minutes when Plaintiff Wharton testified that the
morning call only lasted five to fifteen minutes. On this issue, the Court finds Plaintiff Wharton’s
testimony credible, and a morning call lasting ten minutes on average will be factored into the Court’s
final calculation of damages.
Likewise, it appears that Plaintiff Wharton may have believed that the $700 per week “salary”
was only intended to compensate for 40 hours per week and not 45. [See No. 1:11-cv-01222-TWP-DKL
Dkt. 1 at 2.] This is significant because five hours of uncompensated overtime work at the regular rate of
$17.50 ($700/40 hours) would be calculated at $26.25 per hour, while five hours of work paid only at the
regular rate of $15.56 ($700/45 hours) instead of the overtime rate of $23.33 would be calculated at the
difference, $7.77 per hour. Both Plaintiff Furgason and Mr. Furrer testified that the “salary” was intended
to compensate for 45 hours of work per week, and this consensus is presented in Plaintiffs’ proposed
Findings of Fact and Conclusions of Law. [Dkt. 75-1.] Therefore, the Court finds that the $700 per week
“salary” was intended for a 45 hour work week, and the regular rate of pay will be calculated at $15.56
per hour, with overtime pay calculated at $23.33 per hour, and the hours worked between 40 and 45 hours
per week will be calculated at the difference of $7.77 per hour.
Finally, the Court finds Defendant Furrer’s statements, when pressed, were generally credible, but
does not give credit to his presentation of the evidence. Defendants’ mischaracterization of billing
records as “Labor Records” is evident in Mr. Furrer’s own testimony that the billing records do not
include any work related activities performed away from a work site, such as receiving assignment calls,
cleaning and fueling the trucks, purchasing supplies, disposing of debris, submitting paperwork, and
travel time to and from such necessary destinations. Defendants also mischaracterized Plaintiff
Furgason’s Severance Agreement and General Release at a “settlement agreement” at trial in an attempt
to receive a credit for the $1800 Severance Payment made in 2012. The District Judge already decided in
his entry of partial summary judgment that a plaintiff cannot waive his IMWL claim by signing such a
document, and Plaintiff Furgason’s claims are not so precluded in this matter. Additionally, the
Agreement lists eighteen other causes of action and includes two catch-all provisions, meaning that
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dozens of possible claims are potentially waived by a signatory of the Agreement. Therefore, the $1800
Severance Payment does not pertain to the claim at issue here and will not be considered in the Court’s
calculations.
III.

Conclusions of Law

The Indiana Minimum Wage Law states that “no employer shall employ any employee for a work
week longer than forty (40) hours unless the employee receives compensation for employment in excess
of the hours above specified at a rate not less than one and one-half (1.5) times the regular rate at which
the employee is employed.” Ind. Code 22-2-2-4(k). Further, an “employer” is defined as “any
individual, partnership, association, limited liability company, corporation, business trust, the state, or
other governmental agency or political subdivision during any work week in which they have two (2) or
more employees.” 2 Id. at 22-2-2-3 (emphasis added). Defendants do not dispute that they were in
violation of section 4 between the February 28, 2011 and October 29, 2011. [See Dkt. 74 (Defendants’
Proposed Findings of Fact and Conclusions of Law, proposing an award of damages “against
Defendants”).] Thus, the Court need only determine the extent of damages owed to the Plaintiffs.
Additionally, the IMWL requires every employer to “furnish each employee” with a statement of
their hours worked during each pay period. Ind. Code 22-2-2-8(a). A failure to keep such records is an
additional violation of the IMWL separate from the requirement to pay each employee pursuant to the
payment requirements of section 4. Ind. Code 22-2-2-11(a). Although Mr. Furrer presents the Mr.
Handyman billing records as “Labor Records,” the billing records are an incomplete representation of
Plaintiffs’ hours worked, failing to account for morning calls and travel time between work sites and other
work-related destinations. Although the GPS records paint a more complete picture, they are not

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The IMWL further specifies that an “employer,” as defined in section 3, “shall not include any employer who is
subject to the minimum wage provisions of the federal Fair Labor Standards Act.” Although Plaintiffs initially
brought claims under the FLSA, Defendants argued that they were not subject to the FLSA, and, when Plaintiff
Furgason stipulated to the application of only the IMWL to his claims, the District Judge ruled that “any dispute
regarding whether Mr. Handyman qualifies under the FLSA is now moot.” [Dkt. 54 at 4.] Thus, for the purposes of
Plaintiffs’ claims now before the Court, Defendants are not “subject to” the FLSA, and the IMWL will properly be
applied to the matter.

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available for four of the months in question, and Mr. Furrer did not “furnish each employee” with the
GPS records from their trucks, as required by section 8 of the IMWL. Thus, Defendants failed to keep
adequate records of the hours worked by their employees.
With an admission of a section 4 violation, failure to compensate, in conjunction with a section 8
violation, failure to keep adequate records, the Plaintiffs must prove the extent of Defendants’ damages
against them by a preponderance of the evidence. See, e.g., Travelers Indem. Co. v. Armstrong, 442
N.E.2d 349, 361 (Ind. 1982) (“‘Preponderance of the evidence,’ when used with respect to determining
whether or not one's burden of proof has been met, simply means the “greater weight of the evidence”);
SJS Refractory Co., LLC v. Empire Refractory Sales, Inc., 952 N.E.2d 758, 766 (Ind. Ct. App. 2011).
While Plaintiffs claim that they worked an average of 55 hours per week for the entire time period in
question, Plaintiffs only provided the Court with two weeks’ worth of GPS records for Plaintiff Furgason
and about one month’s worth of GPS records for Plaintiff Wharton for the relevant time period. With
these GPS records provided, the Court was able to examine two weeks’ worth of data (June 20, 2011
through June 24, 2011 and June 27, 2011 through July 1, 2011) for both Plaintiffs. By the Court’s
calculation, the average number of hours worked per day for those two overlapping weeks is 10.9 hours
per day—11.1 hours for Plaintiff Furgason and 10.7 hours for Plaintiff Wharton. 3 These averages
indicate that Plaintiffs’ estimate of 55 hours of work per week is reasonable, assuming a five day work
week. In response, Defendants offer no GPS evidence from other time periods to support their assertion
that the billing records are an accurate representation of Plaintiffs’ hours worked. Therefore, the greater
weight of the evidence supports Plaintiffs’ claims that they worked an average of 55 hours per week
during the time period in question.
Accordingly, the Court makes the following calculations with regard to Plaintiff Furgason:

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To arrive at these numbers, the Court measured the time each Plaintiff first turned on his truck in the morning to
the time each Plaintiff’s work truck first arrived at his home address at night, subtracting any time spent at his home
address during the day. For each day worked, an additional ten minutes was added for a phone call from Mr. Furrer,
and an additional fifteen minutes was added for any at-home organizing and cleaning of the work truck.

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Plaintiff Furgason was incorrectly paid a $700 “salary” per week for the 35 weeks he worked
for Mr. Handyman, as measured from February 28, 2011 through October 29, 2011

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On average, Plaintiff Furgason worked 55 hours per week (10 hours per week greater than the
45 hours per week his “salary” covered), 15 hours of which Plaintiff Furgason should have
been paid 1.5 times the regular rate, pursuant to the IMWL

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The regular rate of pay will be calculated at $15.56 per hour ($700 divided by the 45 hours of
work per week expected)

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The overtime rate of pay will be calculated at $23.33 per hour (1.5 times the regular rate of
pay, as required by the IMWL)

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For the first five hours of overtime worked by Plaintiff Furgason per week (40 to 45 hours),
Plaintiff Furgason is owed $7.77 per hour (the difference between the regular rate of pay and
the overtime rate of pay)

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For the pay period of November 6, 2011 through November 12, 2011, Plaintiff Furgason was
paid assuming 50 “regular” instead of 40 and is further owed ten hours’ worth of payment at
$7.50 per hour (the difference between the regular rate of pay at that time, $15.00, and the
overtime rate of pay at that time, $22.50)

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In sum, Plaintiff Furgason is owed:
o

$1,359.75 (5 hours at $7.77 times 35 weeks) plus

o

$8165.50 (10 hours at $23.33 times 35 weeks) plus

o

$75.00 (10 hours at $7.50 in one week) for a total of

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$9600.25

Additionally, the Court makes the following calculations with regard to Plaintiff Wharton:
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Plaintiff Wharton was incorrectly paid a $700 “salary” per week for the 15 weeks he worked
for Mr. Handyman, as measured from April 10, 2011 through July 23, 2011

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-

On average, Plaintiff Wharton worked 55 hours per week (10 hours per week greater than the
45 hours per week his “salary” covered), 15 hours of which Plaintiff Wharton should have
been paid 1.5 times the regular rate, pursuant to the IMWL

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The regular rate of pay will be calculated at $15.56 per hour ($700 divided by the 45 hours of
work per week expected)

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The overtime rate of pay will be calculated at $23.33 per hour (1.5 times the regular rate of
pay, as required by the IMWL)

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For the first five hours of overtime worked by Plaintiff Wharton per week (40 to 45 hours),
Plaintiff Wharton is owed $7.77 per hour (the difference between the regular rate of pay and
the overtime rate of pay)

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In sum, Plaintiff Wharton is owed:
o

$582.75 (5 hours at $7.77 times 15 weeks) plus

o

$3499.50 (10 hours at $23.33 times 15 weeks) for a total of

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$4082.25

Further, according to section 9 of the IMWL, “[a]ny employer who violates the provisions of
section 4 of this chapter shall be liable to the employee or employees affected in the amount of their
unpaid minimum wages and in an equal additional amount as liquidated damages.” Ind. Code 22-2-2-9.
Because Plaintiffs additionally seek liquidated damages, the award to each Plaintiff will be twice the
amount of unpaid minimum wages calculated above.
IV.

Conclusion

For the reasons set forth above in the Court’s Findings of Fact and Conclusions of Law, the Court
finds that the Defendants are jointly and severally liable to Plaintiff Furgason for unpaid overtime in the
amount of $19,200.50, representing a compensatory damage award of $9,600.25 and a liquidated
damages award of $9,600.25. Additionally, the Court finds that the Defendants are jointly and severally

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liable to Plaintiff Wharton for unpaid overtime in the amount of $8,164.50, representing a compensatory
damage award of $4,082.25 and a liquidated damages award of $4,082.25.

Date: 09/16/2014

Distribution:
Robert Peter Kondras, Jr.
HUNT HASSLER LORENZ & KONDRAS LLP
[e-mail]
Steven Sams
STEVEN SAMS, P.C.
[e-mail]

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