Tarver v. Delta Tranz, LLC et al

Filing 13

Opinion & Order signed by Judge James S. Gwin on 2/22/18. The Court, for the reasons set forth in this order, grants plaintiff's summary judgment motion as to his FLSA, Ohio Wage Act, and unjust enrichment claims and grants plaintiff 9;s request for damages, attorney's fees and court costs on those claims in the amounts set forth in this order. The Court denies plaintiff's motion for summary judgment as to his termination in violation of Ohio public policy and whistleblower claims. (Related Doc. 10 ) (D,MA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
------------------------------------------------------:
JOHN TARVER,
:
:
Plaintiff,
:
:
v.
:
:
DELTA TRANZ, LLC, et al.
:
:
Defendants.
:
:
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CASE NO. 1:17-cv-01963

OPINION & ORDER
[Resolving Doc. No. 10]

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
Plaintiff John Tarver moves for summary judgment against Defendants Delta Tranz,
LLC, Edina Duric, and Eddie Duric (“Defendants”).1 Defendants have failed to respond to
Plaintiff Tarver’s request for admissions or his motion for summary judgment.2
For the reasons stated below, the Court GRANTS IN PART and DENIES IN PART
Plaintiff Tarver’s motion for summary judgment.
I. Background
Defendants previously employed Plaintiff Tarver as a truck driver from April 4, 2017
until his termination on May 28, 2017.3 He was compensated on a weekly basis at the rate of
forty-three cents per mile.4 He drove approximately 4,000 miles per week for Defendants.5
While working for Defendants, Tarver noticed that his truck was not in compliance with
the Department of Transportation’s (“DOT”) guidelines and policies.6 The truck was also a

1

Doc. 10.
See Doc. 9; Doc. 12.
3
Doc. 10-1 at ¶¶ 2, 29.
4
Id. at ¶¶ 3-4.
5
Id. at ¶ 5.
6
Doc. 1 at ¶ 36.
2

Case No. 1:17-cv-1963
Gwin, J.
hazard to the public at large.7 Tarver notified Defendants via text message that his truck was
unsafe and non-compliant with DOT guidelines and policies.8
Despite their knowledge of the faults with Tarver’s truck, Defendants instructed Tarver to
continue driving the vehicle.9 Defendants did not make any attempts to repair the truck before
ordering Tarver to drive it.10
Because of the truck’s deficiencies, Tarver got into an accident.11 While he was driving
the truck, the truck’s engine overheated, and Tarver almost drove off of a cliff as a result.12
Immediately after the accident, Tarver informed Defendants that he refused to continue driving
the vehicle.13 Because of his experience in the trucking industry, Tarver knew that continuing to
drive the truck was against the applicable trucking guidelines and regulations.14
Tarver had the truck towed to a local motel, where he stayed the night.15 When he woke
up the next morning, he discovered that Defendants had the truck towed from the motel back to
them.16 Defendants fired Tarver almost immediately after this event.17 Defendants fired Tarver
because he was unwilling to continue driving the truck.18

7

Id. at ¶ 37.
Id. at ¶¶ 38-41.
9
Id. at ¶ 45.
10
Id. at ¶ 46.
11
Id. at ¶ 47.
12
Id. at ¶¶ 48-49.
13
Id. at ¶ 50.
14
Id. at ¶ 51.
15
Id. at ¶¶ 56-58.
16
Id. at ¶¶ 58-60.
17
Id. at ¶ 61.
18
Id. at ¶ 62.
8

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Gwin, J.
Tarver kept a number of personal belongings in the truck at the time of the accident.19 He
has not been able to collect these belongings after Defendants had the truck towed, and
Defendants have refused to return them.20
After firing Tarver, Defendants refused to pay him for his previous weeks of work.21 As
of this date, he has still not been paid for his final two-and-a-half weeks of driving for
Defendants.22
During his employment, the mirror on a truck that Tarver drove for Defendants became
damaged.23 Tarver states that this mirror was damaged in the course of his employment with
Defendants.24 Defendants deducted $900.00 from Plaintiff Tarver’s pay to repair this mirror.25
Defendants never informed Tarver that he was responsible for the cost of repairs to his vehicle.26
Tarver estimated the repair should cost only $20.00.27 Because of the $900.00 deduction from
his pay, Tarver was paid below the minimum wage for his work during that pay period.28
II. Legal Standard
A party is entitled to summary judgment “if the pleadings, depositions, answers to the
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.”29 The moving party bears an initial burden of pointing to facts in the record that entitle

19

Id. at ¶ 65.
Id. at ¶¶ 65-67.
21
Id. at ¶¶ 68-69.
22
Id.
23
Id. at ¶ 19.
24
Id. at ¶ 20.
25
Id. at ¶¶ 25-26.
26
Id. at ¶¶ 22, 27.
27
Id.
28
Id. at ¶¶ 29-32.
29
Fed. R. Civ. P. 56(c).
20

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Gwin, J.
it to summary judgment. Once the moving party has met this burden, the non-moving party
“must set forth specific facts showing there is a genuine issue for trial.”30
If a motion for summary judgment goes unopposed, a reviewing court is not required to
“conduct its own probing investigation of the record” and may properly rely on the facts
provided by the moving party.31 A court is only required to “intelligently and carefully review
the legitimacy of such an unresponded-to motion” in order to determine whether the movant has
met their initial burden.32
Similarly, if a party fails to respond to a request for admissions within thirty days of
being properly served, those matters are deemed admitted pursuant to Federal Rule of Civil
Procedure 36(a)(3).
III. Analysis
Tarver brings claims under the Fair Labor Standards Act (FLSA),33 the Ohio Minimum
Fair Wage Standards Act (“Ohio Wage Act”),34 and the Ohio whistleblower statute,35 as well as
claims for wrongful termination in violation of public policy and unjust enrichment. Tarver
bases his motion for summary judgment on these claims on several affidavits, his complaint, and
unanswered requests for admissions.36 The Court addresses each claim in turn.

30

Fed. R. Civ. P. 56(e).
Guarino v. Brookfield Tp. Trustees, 980 F.2d 399, 405 (6th Cir. 1992).
32
Id.; see also Allstate Ins. Co. v. Das, 86 F. Supp. 3d 716, 724-25 (E.D. Mich. 2015).
33
29 U.S.C. §§ 206(a), 207(a).
34
Ohio Rev. Code §§ 4111.03, 4111.10.
35
Ohio Rev. Code § 4113.52.
36
Tarver served these requests for admissions on Defendants on October 26, 2017, and they have still not
responded to them. See Doc. 7. The Court therefore deems the matters addressed in Tarver’s October 26,
2017 requests for admissions admitted and part of the record for purposes of summary judgment. See
Jasar Recycling, Inc. v. Major Max Mgmt. Corp., No. 4:08-cv-2830, 2010 WL 395212, at *3 (N.D. Ohio
Jan. 22, 2010) (“Matters deemed admitted from a failure to respond to requests for admissions can serve
as a basis for a summary judgment motion.”).
31

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Case No. 1:17-cv-1963
Gwin, J.
A. FLSA and Ohio Wage Act Claims
Tarver is entitled to summary judgment on his FLSA and Ohio Wage Act claims. Both
acts require employers to pay their employees a minimum wage for each hour worked. 37
Defendants have admitted that they employed Plaintiff Tarver, and that they failed to compensate
him at or above the minimum wage for the period of time in question.38
Tarver alleges that Defendants did not pay him at all for his final two weeks of work.
Tarver’s entitlement to pay for those final two weeks of work is clear, as Defendants admit that
they have not paid him at all for that work.39
Tarver also presented evidence that Defendants deducted the repair cost of his truck’s
mirror from his check, which caused him to receive less than the minimum wage. Both the Sixth
Circuit and the Department of Labor have found an FLSA violation where a deduction taken
from an employee’s paycheck for equipment required for the employee to complete their work
decreases the employee’s pay below the minimum wage.40 Tarver is therefore entitled to
summary judgment on this claim as well.
As such, Plaintiff Tarver is entitled to summary judgment on his FLSA and Ohio Wage
Act claims relating to both Defendants’ failure to pay him for his final two weeks of work and
Defendants’ impermissible deduction for a broken mirror. The Court GRANTS Tarver’s motion
for summary judgment on both of these claims.

37

See Hurt v. Commerce Energy, Inc., No. 12-cv-758, 2013 WL 4427255, at *1 (Aug. 15, 2013).
See Doc. 10-3 at 5-7 (Requests for Admission 1, 8, 10).
39
See id. at 7 (Request for Admission 10).
40
See Marshall v. Root’s Restaurant, Inc., 667 F.2d 559, 560 (6th Cir. 1982); see also 29 C.F.R. § 531.35
(noting that “there would be a violation of the [FLSA] in any workweek when the cost of such tools
purchased by the employee cuts into the minimum or overtime wages required to be paid him under the
Act”).
38

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Case No. 1:17-cv-1963
Gwin, J.
B. Ohio Whistleblower Claim
Tarver’s Ohio Whistleblower claim fails. “For an employee to be afforded protection as a
‘whistle blower,’ he or she must strictly comply with the requirements of [Ohio Revised Code §]
4113.52. An employee who fails to do so is barred from claiming the protections of the
statute.”41
The Ohio Whistleblower Statute requires an employee to fulfill three requirements. First,
the employee may either orally notify their employer of a violation and follow that oral
notification with a sufficiently detailed written report, or the employee may simply file the
written report.42 Next, the employee must give the employer twenty-four hours to make a goodfaith effort to resolve the issue.43 Third and finally, if, after twenty-four hours, the employer has
not taken good-faith steps to fix the problem, the employee must report the employer’s violation
to a relevant outside authority.44
As an initial matter, Tarver has not provided a copy of the text messages that he alleges
satisfied the statute’s written report requirement, and no other piece of evidence details what
these text messages actually said. This lack of evidence could preclude summary judgment on
its own.45

41

Wood v. Dorcas, 757 N.E.2d 17, 21 (Ohio Ct. App. 2001).
See id. (citing Ohio Rev. Code § 4113.52).
43
Id.
44
Id.
45
See, e.g., Behm v. Progress Plastic Prods., Inc., 2007 WL 4216971, at *5 (Ohio Ct. App. 2007)
(analyzing the text of messages purporting to fulfill the whistleblower statute’s reporting requirement and
denying summary judgment because “[t]he abovementioned messages lacked what the statute demands:
sufficient detail to identify and describe a specific safety violation”).
42

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Case No. 1:17-cv-1963
Gwin, J.
Even assuming, however, that the text messages do satisfy the written report requirement,
there is no evidence that Tarver ever made a report to one of the outside authorities listed in the
statute.46 This failure is also fatal to his whistleblower claim.47
The Court DENIES Tarver’s motion for summary judgment on his Ohio Whistleblower
Act claim.
C. Wrongful Termination in Violation of Public Policy
Tarver alleges that Defendants’ terminated him in violation of public policy. He
states that Defendants’ violated the public policy of public safety because his truck
violated DOT regulations and was unsafe to the public at large.
In order to support a claim for discharge in violation of public policy, a plaintiff
must demonstrate (1) the existence of a clear public policy sufficient to justify an
exception to the employment-at-will doctrine that is manifested in a state or
federal constitution, statute, administrative regulation, or common law (the
“clarity” element); (2) that the dismissal of employees under circumstances like
those involved in the plaintiff’s dismissal would jeopardize the public policy (the
“jeopardy” element); (3) that the plaintiff’s dismissal was motivated by conduct
related to the public policy (the “causation” element); and (4) that the employer
lacked overriding legitimate business justification for the dismissal (the
“overriding justification” element).48
The first element of this test, the clarity element, is a determination of law that the Court
must make.49 The Court finds that Plaintiff Tarver’s claim fails on this element as a matter of
law: he has not identified a sufficiently clear public policy.

See Ohio Rev. Code § 4113.52 (allowing an employee to file a report with “the prosecuting authority of
the county or municipal corporation where the violation occurred, with a peace officer, with the inspector
general if the violation is within the inspector general’s jurisdiction, or with any other appropriate public
official or agency that has regulatory authority over the employer and the industry, trade, or business in
which the employer is engaged”).
47
Behm, 2007 WL 4216971, at *5 (“Appellant’s failure to strictly adhere to the dictates of [Ohio Revised
Code §] 4113.52 . . . prohibits him from claiming the protections of the statute.”).
48
Zajc v. Hycomp, Inc., 873 N.E.2d 337, 341-42 (Ohio Ct. App. 2007).
49
Id. at 342.
46

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Case No. 1:17-cv-1963
Gwin, J.
Although Tarver argues that the truck he drove violated DOT regulations, he never
identifies any specific regulation or regulations that Defendants violated.50 Similarly, although
Tarver argues that his truck was unsafe to the public at large, merely hand-waving in the
direction of a danger to the public does not sufficiently identify a specific violated public policy.
This is especially so when Tarver does not even identify what about the truck violated DOT
regulations and made it unsafe to drive.
Tarver has provided no authority that suggests that his invocation of DOT regulations and
public safety generally is sufficient to satisfy the clarity element, and the Court has found no
such authority in its own research.
For this reason, the Court DENIES Tarver’s motion for summary judgment on his
termination in violation of public policy claim.
D. Unjust Enrichment
Plaintiff Tarver is entitled to summary judgment on his unjust enrichment claim. To
prevail on this claim, Tarver must prove that (1) he conferred a benefit on Defendants; (2) that
Defendants were aware of that benefit; and (3) that Defendants “retained that benefit under
circumstances in which it would be unjust for [them] to retain that benefit.”51 “The goal of an
unjust enrichment claim is ‘to prevent one from retaining property to which he is not justly
entitled,’ not to compensate the plaintiff for a loss.”52

50

Cf. Keehan v. Certech, Inc., No. 5:15-cv-1236, 2015 WL 8483179, at *7 (N.D. Ohio Dec. 10, 2015)
(finding that the “clarity” element of a plaintiff’s wrongful termination claim was met when he cited a
relevant specific statute in addition to “a myriad of Ohio and Federal laws”).
51
San Allen, Inc. v. Buehrer, 11 N.E.3d 739, 782 (Ohio Ct. App. 2014).
52
Kline v. Mortg. Elec. Registration Sys., Inc., 704 F. App’x 451, 459 (6th Cir. 2017) (quoting San Allen,
11 N.E.3d at 781).

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Case No. 1:17-cv-1963
Gwin, J.
Defendants have Tarver’s personal property that he left in his truck before they fired him.
This property has monetary value that qualifies as a benefit conferred to Defendants.53 Tarver
has informed Defendants that they have this property multiple times.54 Defendants have offered
no reason why it would be just for them to retain personal property that does not belong to them,
and the Court can think of none.
The Court GRANTS Tarver’s motion for summary judgment on his unjust enrichment
claim.
E. Damages
Tarver is entitled to damages on his successful FLSA, Ohio Wage Act, and unjust
enrichment claims.55
For his FLSA and Ohio Wage Act claims Defendants must pay Tarver at least $7.25 (the
minimum wage) for each hour worked in economic damages,56 as well as an equal amount in
liquidated damages.57 The Court applies that rule here.
For his FLSA and Ohio Wage Act claim regarding an impermissible deduction for a
mirror repair, Tarver is entitled to $107.50 in economic damages and $107.50 in liquidated
damages.58 Similarly, because of Defendants’ failure to pay Tarver for his final two weeks of
work, Tarver is entitled to $1,268.75 in economic damages and $1,268.75 in liquidated
damages.59

Cf. id. at 781 (“Unjust enrichment occurs where a person has and retains money or benefits which in
justice and in equity belong to another.”) (internal quotations omitted); see also Doc. 10-1 at ¶ 19 (valuing
Tarver’s personal property at approximately $2,502.17).
54
Id. at ¶ 20.
55
See, e.g., Jasar Recycling, Inc., 2010 WL 395212, at *10-11 (awarding damages after a defendant
failed to respond to a request for admissions and summary judgment motion).
56
See 29 U.S.C. § 206(a)(1)(C).
57
29 U.S.C. § 216(b).
58
$7.25 * 70 hours worked - $400 previously paid = $107.50. See Doc. 10 at 23; Doc. 10-1 at ¶ 15.
59
$7.25 * 175 hours worked = $1,268.75. See Doc. 10 at 23; Doc. 10-1 at ¶¶ 22-23.
53

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Case No. 1:17-cv-1963
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Both the Ohio Wage Act and FLSA also allow attorney’s fees and court costs for
violations like these.60 Tarver is entitled to $4,505.00 in attorney’s fees and $484.00 in court
costs.61
Finally, Tarver is entitled to either the return of his personal property or $2,502.17, the
value of that property, in damages on his unjust enrichment claim.62
In total, Tarver is entitled to $5,254.67 in damages,63 $4,505.00 in attorney’s fees, and
$484.00 in court costs.
IV. Conclusion
The Court GRANTS Plaintiff Tarver’s summary judgment motion as to his FLSA, Ohio
Wage Act, and unjust enrichment claims. The Court GRANTS Tarver’s request for damages,
attorney’s fees, and court costs on those claims in the amount of $5,254.67 in damages,
$4,505.00 in attorney’s fees, and $484.00 in court costs. The Court DENIES Plaintiff Tarver’s
motion for summary judgment as to his termination in violation of Ohio public policy and
whistleblower claims.
IT IS SO ORDERED.

Dated: February 22, 2018

s/
James S. Gwin___________
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

60

Ohio Rev. Code § 4111.10(A); 29 U.S.C. § 216(b).
Doc. 10-4 at ¶¶ 2, 4.
62
See Doc. 10-1 at ¶ 19.
63
Alternately Defendants could pay Tarver $2,752.50 in damages and return his personal property to him.
61

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