Phillips v. Pearson's Painting, Inc.

Filing 76

MEMORANDUM AND ORDER - The plaintiff's motion for summary judgment (Filing No. 44 ) is denied. The defendant's motion for summary judgment (Filing No. 47 ) is denied. The defendant's motion for an extension of response time (Filing No. 50 ) is denied as moot. The parties shall contact the chambers of Magistrate Judge Thomas Thalken within ten (10) days of the date of this order to schedule a conference addressing further progression of this case. Ordered by Judge Joseph F. Bataillon. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CHARLES L. PHILLIPS,
8:13CV211
Plaintiff,
v.

MEMORANDUM AND ORDER

PEARSON’S PAINTING, INC.,
Defendant.

This matter is before the court on the parties’ cross-motions for summary
judgment, Filing No. 44 and Filing No. 47, and defendant’s motion for an extension of
time to conduct additional discovery to refute plaintiff’s motion, Filing No. 50.1 This is an
action for damages for unpaid overtime compensation for work performed by the plaintiff
as an employee of defendant Pearson’s Painting, Inc. (hereinafter, “the Company”),
under the Fair Labor Standards Act, 29 U.S.C. § 216 et seq., and the a violation of the
Nebraska Wage Payment and Collection Act, Neb. Rev. Stat. § 48-1228 et seq.
Jurisdiction is premised on 28 U.S.C. § 1331 (federal question jurisdiction ) and 28
U.S.C. § 1367(a) (supplemental jurisdiction).
I. BACKGROUND
In his first claim for relief, plaintiff alleges that he routinely worked overtime hours
and was not compensated by the defendant, in violation of the FLSA. Filing No. 1,
Complaint at 2. In his second claim for relief, plaintiff alleges that he was entitled to an
agreed upon hourly wage for the hours he worked for defendant, but was not paid the

1

In light of the court’s disposition, the defendant’s motion for an extension of time is moot. Also,
the defendant submitted and the court considered the defendant’s response to the plaintiff’s motion.

set hourly wage for all hours worked, in violation of the NWPCA. Plaintiff’s Complaint, .
Filing No. 1 at 3, ¶15.
The parties’ respective statements of material fact show that they agree on the
following facts. See Filing No. 45, Brief in Support of Plaintiff’s Motion for Summary
Judgment at 2-9; Filing No. 56, Brief in Opposition to Plaintiff’s Motion for Partial
Summary Judgment at 3-18; Filing No. 58, Plaintiff’s Brief in Opposition at 2-6.
Pearson’s Painting is a commercial painting contractor based in Blair, Nebraska.
Robert (“Bob”) Pearson is the Company owner and President. Pearson’s Painting has
20 employees on average, and averages over $500,000 in sales annually.
Bob Pearson runs the business day-to-day with the help of his sons and his
superintendent, Craig Wessel. Bob Pearson handles the human resources aspects of
the business, including scheduling and payroll.

From an operational standpoint,

Pearson’s Painting has work crews at three to four work sites at a given time, and
contracts to perform about 25 paint jobs per year.
The plaintiff worked as a foreman throughout his employment and was
terminated in May of 2013. His ending wage was $24 per hour. Prior to Craig Wessel’s
hiring, Phillips reported directly to Bob Pearson.

After Wessel was hired, Phillips

reported to Wessel. In addition to his foreman responsibilities, Phillips ran errands and
hauled equipment for the Company. The Company authorized him to buy supplies from
the Company’s suppliers, including Sherwin-Williams. The plaintiff purchased supplies
on an account at virtually every Sherwin-Williams store in the Omaha metropolitan area.
Phillips bought defendant’s painting supplies on defendant’s accounts and was
supposed to be paid for the time that he spent purchasing supplies for defendant.

2

Whenever Phillips charged something to the Sherwin-Williams account, Bob Pearson
received an invoice in the mail. Mr. Pearson received invoices from Sherwin-Williams
on a weekly basis and reviewed them personally.
With respect to defendant’s scheduling and recordkeeping practices during
Phillips’s employment, Bob Pearson and Craig Wessel were responsible for scheduling
employees. Pearson admits that they created no written schedules for employees. Bob
Pearson admits that there were no written policies regarding employee break times.
(Pearson Dep. 33:24-34:2). He claims that employees received a paid 15-minute break
at 9:30 a.m., and an unpaid lunch break at 12:00 p.m.

Bob Pearson claims that

foremen were responsible for recording each crew member’s work hours on handwritten
time cards. There was no time clock.
The company’s time cards only specified the number of hours worked per day, as
opposed to start times and stop times.

Wessel or Pearson would collect data on

employees’ work hours at the end of the week. They would either (1) pick up handwritten time cards from the job sites, or (2) ask employees to report their time over the
phone.

Wessel was responsible for turning in time information to Pearson.

The

defendant admittedly did not collect time cards for weeks that employees reported their
work hours over the phone. When the defendant received time cards or self-reported
hours over the phone, it would record the data into a Quickbooks spreadsheet and
generate an electronic time card for payroll (“electronic time sheets”). The defendant’s
electronic time sheets are what the defendant relied on when cutting checks to plaintiff.
The defendant claims that its electronic timesheets document any overtime that an
employee would have worked during a workweek, and that its electronic records were

3

about 99 percent accurate. The defendant also does not dispute that the plaintiff was
employed to buy paint from Sherwin-Williams, and that the plaintiff was “on the clock”
whenever he bought such supplies for the defendant. The defendant admits that after
purchasing supplies from Sherwin-Williams, the plaintiff would have had to transport the
supplies to one of the Company’s work sites, and was on the clock while he transported
the supplies.
The parties disagree, however, on several points.

See, e.g., Filing No. 58,

Plaintiff’s Brief in Opposition at 2-5 (generally disputing the veracity of statements by
Robert Pearson in his deposition); Filing No. 63, Defendant’s Brief in Reply to Plaintiff’s
Brief in Opposition to Defendant’s Motion for Summary Judgment at 2-4 (generally
disputing inferences to be drawn from the plaintiff’s evidence).

The defendant

disagrees as to the accuracy and importance of the timesheets, the adequacy of the
defendant’s records, and whether the Sherwin-Williams invoices reflect purchases on
behalf of the Company or personal purchases. Further, they disagree on whether the
plaintiff documented all his overtime hours or claimed, complained or inquired about
overtime or being under-compensated. Each party disputes the veracity of the other
party’s testimony.
The parties have submitted documents and affidavits in support of and opposition
to the respective motions. The defendant submits the affidavit of field superintendent
Craig Wessell, who states that the plaintiff’s hours are largely self-reported and that the
plaintiff had submitted timesheets that did not reflect that he left early on certain days.
Filing No. 49, Index of Evid., Ex. 2, Affidavit of Craig Wessell (“Wessell Aff.”) at 2-4.
Wessell also states the plaintiff was terminated on May 6, 2013, in part for falsifying

4

hours. Id. at 3. The defendant also submits the affidavits of Robert Pearson and of a
Sherwin-Williams employee, explaining the Company’s policies and hours and the paint
store’s practices and invoices in general.

Filing No. 57, Ex. 1, Affidavit of Robert

Pearson; Ex. 2, Affidavit of Trevor Tegels.

The plaintiff submits his own affidavits,

various invoices, handwritten timesheets, electronic payroll timesheets, holiday
timesheets, an email obtained in discovery, and authenticating affidavits. See Filing No.
46, Index of Evid., Exs. 1-7. In his first affidavit, the plaintiff states that “[f]rom 2009
through 2013, [he] worked a lot of overtime hours for the Company and was not
compensated for any of [his] time. Specifically, [he] worked many hours prior to 7:00
a.m. and after 3:30 p.m., as well as many hours on Saturdays and Sundays.” Id., Ex. 7,
Phillips Aff. at 1. The plaintiff also submitted evidence and affidavits in response to the
defendant’s submissions.

Filing No. 59, Index of Evid., Exs. 1-13.

In his second

affidavit, plaintiff states that he was authorized to, and did, purchase paint for the
defendant at Sherwin Williams. Id., Ex. 8, Phillips Aff. II at 1. He further states that the
timesheets produced by the defendant in discovery do not reflect all the hours he
worked.

Id. at 2.

Further, he states he believes he was terminated because he

complained that he injured his back on the job, but was told by defendant Pearson that
he was terminated because of a shortage of work. Id. at 2.
The plaintiff argues that the time records produced by defendant are not an
accurate accounting of the hours plaintiff worked for defendant.

He argues that

although the defendant claims that he only worked from 7:00 a.m. to 3:30 p.m. with an
unpaid 30-minute break at noon, numerous invoices show that the plaintiff purchased
supplies on defendant’s behalf at times outside of these reported hours. He argues

5

those receipts demonstrate he was “on the clock” during the weekends. The defendant,
on the other hand, argues that the plaintiff was purchasing supplies for his personal use
and not on behalf of the Company on many of those occasions.
II. LAW
“Summary judgment is appropriate when the record, viewed in the light most
favorable to the non-moving party, demonstrates there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law.” Gage v. HSM
Elec. Prot. Serv., Inc., 655 F.3d 821, 825 (8th Cir. 2011). The court will view “all facts in
the light most favorable to the non-moving party and mak[e] all reasonable inferences in
[that party’s] favor.” Schmidt v. Des Moines Pub. Sch., 655 F.3d 811, 819 (8th Cir.
2011).

“[W]here the nonmoving party will bear the burden of proof at trial on a

dispositive issue . . . Rule 56(e) permits a proper summary judgment motion to be
opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the
mere pleadings themselves.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The
moving party need not negate the nonmoving party’s claims by showing “the absence of
a genuine issue of material fact.” Id. at 325. Instead, “the burden on the moving party
may be discharged by ‘showing’ . . . that there is an absence of evidence to support the
nonmoving party’s case.” Id.
“[T]he filing of cross motions for summary judgment does not necessarily indicate
that there is no dispute as to a material fact, or have the effect of submitting the cause
to a plenary determination on the merits.” Wermager v. Cormorant Twp. Bd., 716 F.2d
1211, 1214 (8th Cir. 1983) (citations omitted).

Summary judgment is inappropriate

when the record permits reasonable minds to draw conflicting inferences about a

6

material fact. Ozark Interiors, Inc. v. Local 978 Carpenters, 957 F.2d 566, 569 (8th Cir.
1992). Ambiguities and conflicts in a deponent’s testimony are generally matters for the
jury to sort out. Id.
“The FLSA prohibits the employment of any person ‘for a workweek longer than
forty hours unless such employee receives compensation for his employment in excess
of the hours above specified at a rate not less than one and one-half times the regular
rate at which he is employed.’” Lopez v. Tyson Foods, Inc., 690 F.3d 869, 874 (8th Cir.
2012) (quoting 29 U.S.C. § 207(a)(1)). “An employee who sues for unpaid overtime
‘has the burden of proving that he performed work for which he was not properly
compensated.’” Id. (quoting Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 68687 (1946), other parts superseded by statute); Fast v. Applebee’s International, Inc.,
638 F.3d 872, 881 (8th Cir. 2011). “When an employer maintains accurate time records
. . . employees can satisfy their evidentiary burden by securing those accurate records.”
Carmody v. Kansas City Bd. of Police Comm’rs, 713 F.3d 401, 406 (8th Cir. 2013). If
an employer fails to keep accurate records, the employee gets the benefit of a relaxed
evidentiary standard. Id. (stating that under the “relaxed evidentiary standard, once the
employee has shown work performed for which the employee was not compensated,
and ‘sufficient evidence to show the amount and extent of that work as a matter of just
and reasonable inference,’ the burden then shifts to the employer to produce evidence
to dispute the reasonableness of the inference”) (quoting Anderson v. Mount Clemens
Pottery Co., 328 U.S. 680, 687-88 (1946).
The Nebraska Wage Payment and Collection Act, Neb. Rev. Stat. § 48-1228 to
48-1232 (“NWPCA”), provides the employee with a remedy to collect any compensation

7

the employer owes. Malone v. American Bus. Info., 634 N.W. 2d 788, 792 (Neb. 2001).
It obligates an employer to “pay all wages due its employees on regular days
designated by the employer or agreed upon by the employer and employee.” Neb. Rev.
Stat. § 48-1230; see Malone, 634 N.W.2d at 792. The Act “places certain restrictions
upon the employer’s right to deduct, withhold, or divert a portion of an employee’s
wages, and specifies when unpaid wages are due following an employee’s separation
from the payroll.” Malone, 634 N.W.2d at 792. The Act also permits an employee to
bring suit on a claim for wages which are not paid in a timely fashion and, if successful
in prosecuting such a claim, to recover attorney fees. Id.; Neb. Rev. Stat. § 48-1231.
The statute defines the term “wages” very broadly as follows: “Wages means
compensation for labor or services rendered by an employee, including fringe benefits,
when previously agreed to and conditions stipulated have been met by the employee,
whether the amount is determined on a time, task, fee, commission, or other basis.”
Neb. Rev. Stat. § 48-1229(4). Although Nebraska courts require a plaintiff to show the
disputed wages were previously agreed to by a defendant, the statutory words
“previously agreed to and conditions stipulated have been met” require only that the
employer has “agree[d] to pay plaintiffs at the appropriate rate of pay for the duties they
were performing.” Hawkins v. City of Omaha, 627 N.W.2d 118, 130 (2001).
The appropriate rate of pay is determined with reference to the minimum wage
and overtime requirements of the FLSA since the statute requires employers to pay a
minimum hourly wage and overtime that parallels the minimum wages set forth in the
FLSA. Compare Neb. Rev. Stat. § 48-1203(1)(a)-(d) with 29 U.S.C. § 206(a)(1)(A)-(C).
The terms of the FLSA allow states and municipalities to enact wage and hour

8

legislation that is more favorable than what is provided for in the FLSA. See 29 U.S.C.
§ 218(a); Williams v. W.M.A. Transit Co., 472 F.2d 1258, 1261 (D.C. Cir. 1972) (stating
that the FLSA expressly contemplates that workers covered by state law as well as
FLSA shall have any additional benefits provided by the state law—higher minimum
wages or lower maximum workweek). Section 218(a) “demonstrates Congress’ intent
to allow state wage laws to co-exist with the FLSA by permitting explicitly, for example,
states to mandate greater overtime benefits than the FLSA.”

Shahriar v. Smith &

Wollensky Restaurant Group, Inc., 659 F.3d 234, 248 (2d Cir. 2011) (noting that
legislative history provides no support for precluding joint prosecution of FLSA and state
law wage claims in the same federal action); see also Knepper v. Rite Aid Corp., 675
F.3d 249, 262 (3d Cir. 2012) (noting that Congress explicitly contemplated dual
enforcement of the FLSA).
III. DISCUSSION
The court finds that neither party has shown it is entitled to judgment as a matter
of law. Resolution of the issues will require assessments of credibility. The court has
reviewed the evidence submitted by the parties and finds there are issues of fact which
will require assessments of credibility.
Moreover, the court cannot assess the importance of the documentary
submissions such as invoices and timesheets, without corresponding testimony to
provide context for and explanation of the documents. A reasonable fact-finder could
draw conflicting inferences from the materials, depending on whose testimony were
credited. The affidavits submitted in support of and against the motions show genuine
issues of fact on most material issues. Essentially, the case involves dueling affidavits:

9

the plaintiff states he routinely worked over 40 hours per week and the defendant
contends he did not. On this record, the court finds a rational jury could credit the
testimony of the plaintiff’s evidence or the defendant’s and could return a verdict for
either party. There is a genuine issue of material fact with respect to the adequacy of
the defendant’s recordkeeping and conflicting inferences can be drawn from the
evidence.
Accordingly, the court finds the motions for summary judgment should be denied.
THEREFORE, IT IS ORDERED that:
1.

The plaintiff’s motion for summary judgment (Filing No. 44) is denied.

2.

The defendant’s motion for summary judgment (Filing No. 47) is denied.

3.

The defendant’s motion for an extension of response time (Filing No. 50) is

denied as moot.
4.

The parties shall contact the chambers of Magistrate Judge Thomas

Thalken within ten (10) days of the date of this order to schedule a conference
addressing further progression of this case.
DATED this 8th day of September, 2014.
BY THE COURT:

s/ Joseph F. Bataillon
United States District Judge

10