Rikard v. U.S. Auto Protection, LLC et al

Filing 412

MEMORANDUM AND ORDER: HEREBY ORDERED that Defendants' Motion for Summary Judgment against Individual Plaintiffs (ECF No. 302 ) is GRANTED in part and DENIED in part, in accordance with the foregoing. Signed by District Judge Jean C. Hamilton on 10/29/2013. (CLK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

LATEASE RIKARD, individually and
on behalf of others similarly situated,
Plaintiff(s),
vs.
U.S. AUTO PROTECTION, LLC, et al.,
Defendant(s).

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Case No. 4:11CV1580 JCH

MEMORANDUM AND ORDER

This matter is before the Court on Defendants= Motion for Summary Judgment against
Individual Plaintiffs, filed July 3, 2013. (ECF No. 302). The motion is fully briefed and ready
for disposition.
BACKGROUND
Defendants U.S. Auto Protection, LLC, and U.S. Auto Warranty, LLC, were Missouri
limited liability companies. (Plaintiffs= Second Amended Complaint (AComplaint@ or ACompl.@),
&& 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).

From approximately January through May, 2011, named Plaintiff Latease Rikard was one
of many sales representatives employed by Defendants at their call center in Chesterfield,
Missouri. (Compl., && 1, 5). Plaintiffs maintain Defendants employed sales representatives to A
pre-screen@ and Aclose@ telephone sales of vehicle service contracts, which were essentially
extended automobile warranties.1 (Id., && 1, 17). According to Plaintiffs, Defendants did not
pay their sales representatives based on the number of hours they worked per week, but instead
utilized a commission-based pay scheme, with a weekly or monthly minimum payment. (Id., &
17). Plaintiffs further state that sales representatives were not required to track or record the
hours they worked in any way, and that Defendants had no system in place for doing so. (Id., &
18).
Plaintiffs allege sales representatives frequently worked in excess of 40 hours in a given
workweek, as they often were required to work before and/or after their designated shifts,
through some lunch periods, and on certain Saturdays.

(Compl., & 19).

Plaintiffs assert

Defendants refused to pay the proper overtime pay of one-and-a-half times the regular hourly
rate of pay for this excess work, and that this deliberate failure on the parts of Defendants
violated the Fair Labor Standards Act (AFLSA@) and Missouri law. (Id., && 20, 21).2 Based on
this alleged wrongdoing, Plaintiffs filed their Complaint on April 20, 2012, asserting claims for
violations of the FLSA (Count I) and the Missouri Minimum Wage Law (Count II), and unjust
enrichment (Count III).
Subsequent to filing their Complaint, Plaintiffs timely petitioned the Court for an order
granting conditional certification of the case as a collective action under ' 216(b) of the FLSA,
and authorizing them to send notice to all current and former sales representatives who had
worked for Defendants in the last three years. In an Order entered December 23, 2011, the Court

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conditionally certified the class for purposes of Count I of the Complaint3, and tailored the
possible class of opt-in Plaintiffs to Ainclude only those persons that worked for Defendants as
sales representatives . . . from September 13, 2008[,] to September 13, 2011.@ (ECF No. 37, P.
11).4

In conditionally certifying the class, the Court found that Plaintiffs had submitted

allegations sufficient to clear the relatively low hurdle of showing that potential class members
were co-victims of Defendants= pay practices. (Id., P. 8). The Court also determined that a
three-year statute of limitations was appropriate for the FLSA claim, stating that APlaintiffs . . .
produced sufficient evidence that Defendants either knew or showed reckless disregard for the
matter of whether its [sic] conduct was prohibited by statute.@ (Id., P. 10).
On November 30, 2012, the Court certified a Rule 23(b)(3) class for Counts II and III of
Plaintiffs= Complaint. (ECF No. 213). The class consists of all individuals who were employed
by Defendants as non-supervisory call center employees at any time during the relevant statute
of limitations.5
As stated above, Defendants filed the instant Motion for Summary Judgment on July 3,
2013, requesting that the Court dismiss from Plaintiffs’ FLSA claim certain individual Plaintiffs
Defendants maintain do not fit within the class definition. (ECF No. 302).
SUMMARY JUDGMENT STANDARD
The Court may grant a motion for summary judgment if, Athe 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.

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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 Amere 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.
DISCUSSION

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I.

Plaintiffs Not Employed By Defendants After November 17, 2009
In their motion, Defendants claim to have identified the following six opt-in Plaintiffs

whose employment with Defendants definitively ended before November 17, 2009: Forrest
Wayne (“Butch”) Elam; Katherine L. (Gilda) Fry; Claudia Gonzalez; Antonio Pagano; Rob
Saumier; and Regina L. Twidwell. (See Defendants’ Memorandum of Law in Support of their
Motion for Summary Judgment against Individual Plaintiffs (“Defendants’ Memo in Support”),
PP. 4-5). Defendants further claim to have identified the following two additional Plaintiffs
whose employment with Defendants likely ended before November 17, 2009: Michael Boyer;
and Troy Liticker. (Id., PP. 5-6). Defendants thus request that these Plaintiffs be dismissed from
both the FLSA and Missouri state-law claims.
Plaintiffs do not oppose the entry of summary judgment with respect to opt-in Plaintiffs
Elam, Fry, Gonzalez, Pagano, Saumier, Twidwell, and Liticker. (See Plaintiffs’ Response to
Defendants’ Statement of Facts, ¶ 7 (“The persons identified by Defendants were employed by
Defendant U.S. Auto Protection prior to November 17, 2009 and were therefore previously
excluded from the claims against the remaining Defendants per the parties’ agreement.”)). With
respect to opt-in Plaintiff Michael Boyer, however, Plaintiffs correctly note that while Mr.
Boyer’s personnel file lists his start date as October 13, 2009, the record contains no indication
as to his length of employment. (Id., ¶ 6). Under these circumstances, the Court finds a genuine
issue of material fact exists with respect to whether Mr. Boyer was employed by Defendants
during the relevant time period, and so their Motion for Summary Judgment as to Mr. Boyer
must be denied.
II.
Plaintiffs Who Spent A Portion Of Their Employment With Defendants In Positions
Other Than Sales Representatives

Defendants next claim the following opt-in Plaintiffs must be excluded because they
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spent a portion of their employment with Defendants in positions other than sales
representatives: Richard Bohling; Candice Ghobrial; Susan Hampe; Teresa L. Hill; Amanda
Maestas; Martha Romero; Martha Turner6; Aaron Callison; Gerald E. Cardwell, Jr.; Jason Ernst;
Jonathan McCutchen; Ben Peters; Gary Primm7; Samantha Prier; Eric Eisleben8; Moriah Tess
Copeland9; Larry Henderson10; and Joe Meador11. Upon consideration, however, the Court
finds dismissal of these Plaintiffs’ claims to be inappropriate, as arguably they each spent at least
some time working in positions within the FLSA class. See 29 U.S.C. §207(a)(1) (compliance
with FLSA overtime requirement is determined on the basis of each workweek). See also Chao
v. A-One Med. Servs., Inc., 346 F.3d 908, 916 (9th Cir. 2003), citing 29 U.S.C. § 207(a)(2)(C)
(“An employer becomes responsible for overtime once its employees exceed forty hours in one
workweek.”). The Court thus agrees with Plaintiffs that the fact certain Plaintiffs may have
worked in positions outside the defined class at times during their employment merely means
their recovery may be limited to those times they worked in positions within the FLSA class
definition.12 This portion of Defendants’ Motion for Summary Judgment must therefore be
denied.
III.

Opt-In Plaintiff Becky A. Young
Defendants next assert opt-in Plaintiff Becky A. Young is not part of the FLSA class, as

for the entire duration of her employment with Defendants she worked in their accounting and
payroll departments. (Defendants’ Memo in Support, P. 9). Plaintiffs concede this point in their
response, but note Young remains part of the Rule 23 class, more broadly defined as all
individuals who were employed by Defendants as non-supervisory call center employees at any
time during the relevant statute of limitations. (Plaintiff’s Response to Defendants’ Statement of
Facts, ¶ 34). Defendants’ Motion for Summary Judgment with respect to Plaintiff Young will

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therefore be granted as to her participation in the FLSA class only.13
IV.

Opt-In Plaintiff Michael C. Walker
With respect to Plaintiff Walker, Defendants assert without dissent that he began working

for Defendants on January 10, 2011, that his biweekly salary as a sales representative was $650,
and that according to 2011 payroll records, his total compensation from Defendants was $290.
(Defendants’ Facts, ¶¶ 63, 6514). Defendants further note that Plaintiff Rikard spent her first
week of employment with Defendants in training, and worked no overtime. (Id., ¶ 66). From
this information, Defendants attempt to extrapolate that Plaintiff Walker worked for Defendants
for only one week, spent in training, and thus worked no overtime during his employment with
Defendants. (Defendants’ Memo in Support, P. 10). Upon consideration, the Court finds
Defendants’ position does not rely solely on uncontroverted facts, but instead requires a leap of
logic to substantiate. Under these circumstances, entry of summary judgment with respect to Mr.
Walker is inappropriate and will be denied.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Defendants= Motion for Summary Judgment against
Individual Plaintiffs (ECF No. 302) is GRANTED in part and DENIED in part, in accordance
with the foregoing.
Dated this 29th Day of October, 2013.

/s/ Jean C. Hamilton
UNITED STATES DISTRICT JUDGE
1 Plaintiff Rikard worked as both a pre-screener and a closer at various times during her
employment with Defendants in 2011. (Compl., & 5).
2

Plaintiffs further maintain Defendants= failure accurately to record all time worked by
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their sales representatives violated the FLSA and Missouri law. (Compl., & 22).
3

Although the Court=s December 23, 2011, Order was directed to Plaintiffs= First
Amended Complaint, the only change in the Second Amended Complaint was the addition of
individual Defendants Brian Schatzberg, Paul Benenati, Josh Markert, and Ben Deverger, each
of whom has since been dismissed or settled. (See ECF Nos. 160, 161, 171, 339).
4

In a subsequent Order entered January 19, 2012, the Court reconsidered the
aforementioned timeframe and decided that Athe conditionally certified class shall include only
those persons that worked for Defendants as sales representatives . . . from December 14, 2008[,]
to December 14, 2011.@ (ECF No. 41, P. 2).
5 In

light of their settlement with prior ownership, Plaintiffs agreed to limit the recovery
period to times since November 17, 2009. (See ECF No. 191, P. 23).
6 Defendants maintain opt-in Plaintiffs Bohling, Ghobrial, Hampe, Hill, Maestas, Romero and
Turner must be excluded because they spent at least part of their employment with Defendants
working in the customer service department. (Defendants’ Memo in Support, PP. 6-7).
7 Defendants maintain opt-in Plaintiffs Callison, Cardwell, Ernst, McCutchen, Peters, Primm,
Bohling and Romero must be excluded because they spent at least part of their employment with
Defendants in supervisory positions. (Defendants’ Memo in Support, PP. 7-8).
8 Defendants maintain opt-in Plaintiffs Prier and Eisleben must be excluded because they spent
at least part of their employment with Defendants working on the “Internet team.” (Defendants’
Memo in Support, PP. 8-9).
9 Defendants maintain opt-in Plaintiffs Copeland and Primm must be excluded because they
spent at least part of their employment with Defendants working in the training department.
(Defendants’ Memo in Support, P. 9).
10 Defendants maintain opt-in Plaintiff Henderson must be excluded because he spent at least
part of his employment with Defendants serving as a “Policy Advisor.” (Defendants’ Memo in
Support, P. 9).
11 Defendants maintain opt-in Plaintiff Meador must be excluded because he spent at least part
of his employment with Defendants working in advertising. (Defendants’ Memo in Support, P.
9).
12 In their response, Plaintiffs further point out these Plaintiffs may be members of the Rule 23
class for the entirety of their employment with Defendants.
13 In their reply brief, Defendants request that the Court, “[r]econcil[e] the class definitions for
plaintiffs’ FLSA and class claims with each other and with plaintiffs’ amended complaint…by
either interpreting the scope of the certified Rule 23 class, in light of plaintiffs’ certification
request, as excluding non-sales representative U.S. Auto employees or issuing an order expressly
amending the class definition.” (Defendants’ Reply Brief in Support of their Motion for
Summary Judgment against Individual Plaintiffs, P. 5). The Court will deny this request,
however, as the requested relief falls outside the scope of the instant Motion for Summary
Judgment.
14 Defendants have two statements of uncontroverted fact numbered 65, both of which are above
referenced.

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