Nacy et al v. D.F.C. Enterprises, Inc. et al
ORDER granting parties' Joint Motion to Vacate the Order Certifying the Class 76 ; granting plaintiff's Motion for Partial Summary Judgment 80 ; and denying defendant's Motion for Summary Judgment 90 . A pretrial teleconference wit h the parties is set for 8/30/12 at 9:00 a.m. The parties are also advised that due to a conflict with the Court's calendar, the trial date of September 10, 2012 is canceled. The parties should review their calendars and be prepared to discuss possible new trial dates during the pretrial conference. Signed on 8/20/12 by Chief District Judge Fernando J. Gaitan, Jr. (Enss, Rhonda).
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
JAMES NACY, et al.,
D.F.C. ENTERPRISES, INC., et al.,
) No. 11-0331-CV-W-FJG
Currently pending before the Court is the parties’ Joint Motion to Vacate the
Order Certifying the Class (Doc. # 76), Plaintiff’s Motion for Partial Summary Judgment
(Doc. # 80) and Defendant’s Motion for Summary Judgment (Doc. # 90).
Defendant D.F.C. Enterprises, Inc. (“DFC”) operates three companies engaged
in the car rental business. Defendant Daniel F. Collins is the owner and manager of
D.F.C. Defendants are subject to the overtime pay requirements of Missouri Minimum
Wage Law (“MMWL”) because they are employers under Mo.Rev. Stat. § 290.500(4)
and plaintiffs are employees under Mo.Rev.Stat. § 290.500(3). Additionally, plaintiffs
argue that defendants are subject to the overtime requirements of the Fair Labor
Standards Act (“FLSA”) because they were engaged in commerce and also because
their gross annual revenue exceeded $500,000.
On March 30, 2011, plaintiffs James Nacy, Joseph Gladstone, Cole Tumberg
and Debbie King individually and on behalf of a class of other similarly situated plaintiffs
filed suit against the defendants alleging FLSA wage and overtime violations. The
Complaint requested FLSA class certification and Fed.R.Civ.P. 23 certification of the
Missouri minimum wage, breach of contract and unjust enrichment claims. On August
26, 2011, the Court conditionally certified the FLSA class action. On September 29,
2011, plaintiffs filed an Amended Complaint, which added FLSA retaliation claims and
state law wrongful termination claims for plaintiffs James Nacy, Cole Tumberg, Wade
Tumberg and Jackie Tumberg. On March 2, 2012, the parties stipulated to the
dismissal of Joseph Gladstone’s claim. On the same day, plaintiffs also withdrew their
Motion for Fed.R.Civ.P. 23 class certification. On March 28, 2012, the parties stipulated
to the dismissal of plaintiffs Debbie King and W.A. Gladstone. On the same day, the
parties jointly moved to decertify the collective action. Thus, the claims which remain
are the wage and hour claims of James Nacy and Cole Tumberg and the FLSA
retaliatory discharge and state law wrongful termination claims of Nacy, Cole Tumberg,
Wade Tumberg and Jackie Tumberg.
Plaintiff James Nacy worked as a rental agent for defendants from September
20, 2009 to April 6, 2011. While Nacy was being paid on a salary basis, Nacy was not
paid at a rate of time-and-a-half for the work he performed in excess of 40 hours a
week. Defendants’ expert witness, Terry L. Berger, after reviewing the defendants’
timekeeping and payroll records concluded that Nacy should have been paid overtime
and was owed at least $2,239.56.
Plaintiff Cole Tumberg worked for defendants as a Porter and a Rental Agent
from April 4, 2010 until June 2, 2011. Defendants expert witness Terry Berger testified
that Cole Tumberg was underpaid overtime compensation on four occasions.
A moving party is entitled to summary judgment on a claim only if there is a
showing that “there is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). “[T]he substantive law
will identify which facts are material. Only disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude the entry of summary
judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986). If the moving party meets this requirement, the burden shifts to the
non-moving party to “set forth specific facts showing that there is a genuine issue for
trial.” Anderson, 477 U.S. 242, 248 (1986). In Matsushita Electric Industrial Co. Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), the
Court emphasized that the party opposing summary judgment “must do more than
simply show that there is some metaphysical doubt as to the material facts” in order to
establish a genuine issue of fact sufficient to warrant trial. In reviewing a motion for
summary judgment, the court must view the evidence in the light most favorable to the
non-moving party, giving that party the benefit of all inferences that may be reasonably
drawn from the evidence. Matsushia, 475 U.S. 574, 588; Tyler v. Harper, 744 F.2d 653,
655 (8th Cir. 1984), cert. denied, 470 U.S. 1057 (1985).
A. Joint Motion to Decertify
On August 26, 2011, the Court granted plaintiffs’ Motion for Conditional
Certification under the FLSA. The Court conditionally certified two collective actions
All current and former DFC employees who have worked for Defendants
at any time during the last 3 years and whose job duties involved
processing rental car applications, selling insurance to customers renting
cars, or inspecting cars prior to rental and upon return; and
All current and former DFC employees who have worked for Defendants at any
time during the last 3 years and whose job duties involved cleaning cars,
checking cars in upon return, inspecting cars for damage, and taking cars to
Seven plaintiffs opted-in to the present litigation. W.A. Gladstone was the only
opt-in plaintiff who was employed as a Rental Agent. The other opt-in plaintiffs were
employed as Porters. W.A. Gladstone’s claim was voluntarily dismissed on March 28,
2012. Plaintiff Joseph Gladstone was the sole class representative for the Porters.
Joseph Gladstone’s claim was also voluntarily dismissed on March 19, 2012. The
parties state that without a class representative for the Porters and without any opt-in
Rental Agents, the parties believe that the FLSA collective action should be decertified.
The Court agrees and find no basis on which to continue this collective action.
Accordingly, the Court hereby GRANTS the parties’ Joint Motion to Decertify the
Collective Action (Doc. # 76).
B. Plaintiffs’ Motion for Partial Summary Judgment
Plaintiffs state that is no genuine dispute that defendants violated the FLSA and
the MMWL by failing to pay overtime compensation to James Nacy and Cole Tumberg.
Plaintiffs state that the timesheets and paystubs for Nacy and Tumberg establish that
they were not paid the overtime which they were due.
Defendants in response to the Motion for Partial Summary Judgment admit that
Mr. Nacy is entitled to overtime pay for his overtime hours while salaried as a night
manager. Defendants state that this error was inadvertent and caused by a
misunderstanding of the law. Defendants state that they will submit a separate Offer of
Judgment in the amount of $2,239.56, agreeing to judgment in this amount. Similarly,
with regard to Cole Tumberg, defendant state that there were four separate errors made
regarding his wages and he is owed back wages of $60.27. Defendants state that they
will present an offer of judgment in that amount.
Plaintiffs state that they are entitled to partial summary judgment on the issue of
liability as to the overtime claims, because the defendants have admitted that James
Nacy and Cole Tumberg were improperly denied overtime compensation. As the
defendants have admitted liability on these claims, the Court will GRANT plaintiffs’
Motion for Partial Summary Judgement on the failure to pay overtime compensation
claims of James Nacy and Cole Tumberg (Doc.# 80). The Court declines to enter
judgment in a specific amount, as plaintiffs state that the precise amount of damages
owed remains in dispute and they did not move for entry of summary judgment on
C. Defendants’ Motion for Summary Judgment
Defendants have moved for summary judgment on the retaliatory discharge
claims of James Nacy, Cole Tumberg and Wade and Jackie Tumberg. Section
215(a)(3) of the Fair Labor Standards Act makes it unlawful “to discharge or in any other
manner discriminate against any employee because such employee has filed any
compliant . . . or has testified in any . . . proceeding [under or related to the FLSA].” In
Grey v. City of Oak Grove, 396 F.3d 1031, 1034-35 (8th Cir.2005), the Court stated, “[t]o
establish a prima facie case of retaliation, [plaintiff must] show that he participated in
statutorily protected activity, that [defendants] took an adverse employment action
against him, and that there was a causal connection between them.” The defendants
then have an opportunity to offer a legitimate, non-retaliatory reason for the termination
or other adverse action. The burden then shifts back to the plaintiff to show that those
reasons “were not the true reasons for [the action], but merely a pretext for retaliation.”
Id. at 1035. See also, Pearson v. City of Big Lake, Minnesota, 689 F.Supp.2d 1163,
1183 (D.Minn. 2010).
After reviewing the parties’ briefs and arguments regarding defendants’ Motion
for Summary Judgment, the Court finds that there are disputed facts regarding whether
there was a causal connection between the protected activities engaged in by the
plaintiffs and their terminations and/or reductions in hours. Additionally, the Court finds
that there are disputed facts relating to whether the stated reasons for the adverse
employment actions were actually a pretext for retaliation against the plaintiffs.
Accordingly, the Court hereby DENIES defendants’ Motion for Summary Judgment
(Doc. # 90).
The Court will hold a pretrial teleconference with the parties on August 30, 2012
at 9:00 a.m. The parties are also advised that due to a conflict with the Court’s
calendar, the trial date of September 10, 2012 is canceled. The parties should review
their calendars and be prepared to discuss possible new trial dates during the pretrial
For the reasons stated above, the Court hereby GRANTS the parties’ Joint
Motion to Vacate the Order Certifying the Class (Doc. # 76), GRANTS Plaintiff’s Motion
for Partial Summary Judgment (Doc. # 80) and DENIES Defendant’s Motion for
Summary Judgment (Doc. # 90).
S/ FERNANDO J. GAITAN, JR.
Fernando J. Gaitan, Jr.
Chief United States District Judge
Date: August 20, 2012
Kansas City, Missouri
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?