Rikard v. U.S. Auto Protection, LLC et al
MEMORANDUM AND ORDER re: 283 ORDERED that Plaintiffs' Motion for Partial Summary Judgment on the Issue of Defenants' [sic] Failure to Consider Commission and Bonus Payments in the Overtime Rate (ECF No. 283) is GRANTED in part and DENIED in part, in accordance with the foregoing.. Signed by District Judge Jean C. Hamilton on 9/26/13. (CEL)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
LATEASE RIKARD, individually and
on behalf of others similarly situated,
U.S. AUTO PROTECTION, LLC, et al.,
Case No. 4:11CV1580 JCH
MEMORANDUM AND ORDER
This matter is before the Court on Plaintiffs’ Motion for Partial Summary Judgment on the
Issue of Defenants’ [sic] Failure to Consider Commission and Bonus Payments in the Overtime Rate,
filed June 3, 2013. (ECF No. 283). The motion is fully briefed and ready for disposition.
Defendants U.S. Auto Protection, LLC, and U.S. Auto Warranty, LLC, are Missouri limited
liability companies. (Plaintiffs’ Second Amended Complaint, ¶¶ 8-9). According to Plaintiffs,
Defendants Ray Vinson, Jr., Shawn Vinson, and Matthew McLain were officers or members of the
Defendant companies, and possessed control over the hiring and firing practices, pay practices, and
overall operational functions of the entities. (Id., ¶¶ 10-12).
Beginning in or around early May, 2011, Defendants paid their employees an hourly wage,
plus bonuses and commissions. (Plaintiffs’ Statement of Uncontested Material Facts, ¶ 1). From
approximately early May through August or September, 2011, Defendants paid their employees
based on a Paychex time clock program, and paid overtime wages for work performed in excess of
forty hours in a single workweek. (Id., ¶¶ 2, 3). The parties agree that Defendants utilized an
overtime pay rate equivalent to precisely one and one-half times the employees’ hourly rate of pay,
and thus did not include commission or bonus payments in their calculations. (Id., ¶ 5).
As stated above, Plaintiffs filed the instant Motion for Partial Summary Judgment on June
3, 2013, requesting that the Court find in Plaintiffs’ favor on the issue of Defendants’ failure to
consider commission and bonus payments in the overtime rate paid to employees. (ECF No. 283).
SUMMARY JUDGMENT STANDARD
The Court may grant a motion for summary judgment if, “the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The substantive
law determines which facts are critical and which are irrelevant. Only disputes over facts that might
affect the outcome will properly preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). Summary judgment is not proper if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party. Id.
A moving party always bears the burden of informing the Court of the basis of its motion.
Celotex, 477 U.S. at 323. Once the moving party discharges this burden, the nonmoving party must
set forth specific facts demonstrating that there is a dispute as to a genuine issue of material fact, not
the “mere existence of some alleged factual dispute.” Fed. R. Civ. P. 56(e); Anderson, 477 U.S. at
247. The nonmoving party may not rest upon mere allegations or denials of its pleadings. Anderson,
477 U.S. at 256.
In passing on a motion for summary judgment, the Court must view the facts in the light most
favorable to the nonmoving party, and all justifiable inferences are to be drawn in its favor.
Anderson, 477 U.S. at 255. The Court’s function is not to weigh the evidence, but to determine
whether there is a genuine issue for trial. Id. at 249.
Both the Fair Labor Standards Act and the Missouri Minimum Wage Law require employers
to include commission and bonus payments in the “regular rate,” which is used to determine
employees’ overtime rates of pay. See 29 U.S.C. § 207(e); 29 C.F.R. § 778.109; 29 C.F.R. §
778.117; 8 C.S.R. § 30-4.010. In their response to Plaintiffs’ motion Defendants concede this point,
as follows: “Defendants further acknowledge that the law generally requires commissions and
bonuses to be included in the total pay for a workweek toward ascertaining the regular rate of pay,
on which the applicable overtime rate is based.” (Defendants’ Response to Plaintiffs’ Motion for
Partial Summary Judgment on the Issue of Defendants’ Failure to Consider Commission and Bonus
Payments in the Overtime Rate (“Defendants’ Response”), P. 1). The Court thus holds that as to the
issue of whether Plaintiffs’ regular rate of pay should have included commission and bonus
payments for purposes of overtime payment calculations, summary judgment in Plaintiffs’ favor is
To the extent Plaintiffs seek summary judgment with respect to the issue of damages1,
however, the Court will deny Plaintiffs’ motion, as fact questions remain. For example, Plaintiffs
dispute Defendants’ contention that the time clock program effectively captured all time worked,
accepting such proposition for purposes of the instant motion only. (See Plaintiffs’ Memo in
It is unclear to the Court whether Plaintiffs even seek summary judgment on the issue of
damages. See Memorandum in Support of Plaintiffs’ Motion for Partial Summary Judgment on
the Issue of Defenants’ [sic] Failure to Consider Commission and Bonus Payments in the
Overtime Rate (“Plaintiffs’ Memo in Support”), P. 15 (“Here, the uncontradicted evidence
warrants summary judgment on the issue of liability....The specific amount of damages can be
determined at trial.”).
Support, P. 2 n. 1). For their part, Defendants maintain discrepancies between the time records kept
through Defendants’ phone system and the compensable times indicated in the sales representatives’
payroll records raise a question as to whether any overtime compensation was due in the first
instance. (See Defendants’ Response, PP. 1-2). Under these circumstances, the Court finds genuine
issues of material fact exist with respect to whether Plaintiffs are entitled to any damages, and so this
portion of Plaintiffs’ motion must be denied.
IT IS HEREBY ORDERED that Plaintiffs’ Motion for Partial Summary Judgment on the
Issue of Defenants’ [sic] Failure to Consider Commission and Bonus Payments in the Overtime Rate
(ECF No. 283) is GRANTED in part and DENIED in part, in accordance with the foregoing.
Dated this 26th day of September, 2013.
/s/Jean C. Hamilton
UNITED STATES DISTRICT JUDGE
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