EWING v. FIRST ENERGY CORP.

Filing 63

OPINION. Signed by Chief Judge Mark R. Hornak on 12/21/18. (bdb)

IN THE UNITED ST ATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
LINDA EWING,
Plaintiff,
V.

FIRST ENERGY CORP.,
Defendant.

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2: 17-cv-01573

OPINION
On December 4, 2017, Plaintiff Linda Ewing filed a Complaint on behalf of herself and a
putative class alleging overtime violations under the FLSA and state wage acts. (Complaint, ECF
No. 1 ("Compl.").) Defendant FirstEnergy Corporation filed a Motion to Dismiss, averring that
Plaintiff did not plead sufficient factual allegations to establish that Defendant exercised
"significant control" over her in order to show Defendant was her "employer" under the FLSA.
(Motion to Dismiss, ECF No. 13; Brief in Support, ECF No. 14.) Defendant instead alleged that
Plaintiff worked for Spring Creek Acquisitions, LLC, which had entered into an agreement with
Defendant to perform compliance services, and that any such work was supervised by Bums &
McDonnell Engineering Co., Inc. under a separate contract with Defendant. (ECF No. 14, at 12.)
The Court denied without prejudice Defendant's Motion to Dismiss, in part because
Defendant relied on extrinsic documents to support its arguments. (Order, ECF No. 22.) After the
initial case management conference, and after the parties submitted an Amended Rule 26(f)
Report, ECF No. 37, the Court ordered the parties to engage in a limited, first phase of discovery
"target[ing] ... whether FirstEnergy is an employer or joint employer of Plaintiff," and stating

that a deadline for the second phase of discovery would be set by further order. (Initial Case
Management Order, ECF No. 38, at 2.)
Plaintiff then alerted the Court of a discovery dispute (Notice, ECF No. 42), and the
Court held a telephonic status conference on August 17, 2018. (ECF No. 43.) At that conference,
the Court summed up the arguments pertinent to the limited, first phase of discovery: "[T]he
defense-the argument was Miss Ewing was never an employee of FirstEnergy. And Miss
Ewing's argument was: Oh, yes, I was." (Tr. of Aug. 17, 2018 Telephonic Status Conf., ECF No.
58-10 ("TSC Tr."), at 10:5-7.) The Court rejected Plaintiffs contention that discovery on this
topic required finding out "how [FirstEnergy] treats these workers [like Ms. Ewing]" as opposed
to investigating whether Ms. Plaintiff was in fact an employee of Defendant's at all. (Id. at 11: 13.) The Court also told Defendant that its strategy in responding to discovery was "in the Court's
estimation, cagier than [it] needed to be." (Id. at 7: 15-17.)
Plaintiff has now filed two more Motions (ECF Nos. 45 & 49), both of which relate to its
contention that the Court either should have or did order that the parties' discovery focus at the
first phase on the "economic realities test," which governs whether a plaintiff or class member is
an employee or an independent contractor, see Donovan v. Dia/America Marketing, Inc., 757
F.2d 1376, 1382 (3d Cir. 1985).

A. Motion for Equitable Tolling
Plaintiff argues that Defendant "has forestalled the typical FLSA conditional certification
process and taken advantage of the delay pending this initial issue that rightly should have been
decided at the second stage of certification." (Pl.'s Br., ECF No. 46, at 9.) She requests that the
Court apply equitable tolling "to cure the prejudice inflicted on potential class members through
no fault of their own." (Id.) She repeatedly refers to the Court's phased discovery Order as a

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"merits-first approach," which she contends "is not only far from normal, but contrary to [the]
purpose of the FLSA collective action mechanism." (ECF No. 45-1, at 3.)
Plaintiff further argues that, "[h]ad First Energy not insisted on conducting discovery on
the employer-employee relationship with the express intention to file a motion for summary
judgment, Ewing would have filed her motion for conditional certification promptly after the
June 6, 2018 scheduling conference," and therefore the Court should toll the statute of limitations
from that date. (ECF No. 46, at 9.)
"Equitable tolling is a rare remedy to be applied in unusual circumstances, not as a cureall for an entirely common state of affairs." Wallace v. Kato, 549 U.S. 384, 396 (2007). "There
are three principal situations in which equitable tolling is appropriate: ( 1) where the defendant
has actively misled the plaintiff respecting the plaintiffs cause of action, and that deception
causes non-compliance with an applicable limitations provision; (2) where the plaintiff in some
extraordinary way has been prevented from asserting his rights; or (3) where the plaintiff has
timely asserted his or her rights mistakenly in the wrong forum." Podobnik v. US. Postal Serv.,
409 F.3d 584, 591 (3d Cir. 2005), abrogated in part on other grounds by Rotkiske v. Klemm, 890
F .3d 422 (3d Cir. 2018). The plaintiff bears the burden of showing that equitable tolling is
warranted. Id.
Here, Plaintiff argues that the statute of limitations should be tolled based on the first and
second factors. She argues that Defendant misled her and other potential class members by
leading them to believe they were independent contractors, and that Defendant continues to
stymy discovery by refusing to respond to inquiries related to the economic realities test.
Plaintiff appears to conflate the threshold issue of whether First Energy was an employer
or joint employer of Ms. Ewing with the economic realities test used at the second class of class

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certification to determine whether a worker is a properly considered an "employee" under the
FLSA. The Court ordered limited discovery to determine the former, that is, whether Defendant
employed Ms. Ewing and therefore is a proper party to this litigation in the first place. The Court
did not, contrary to Plaintiffs assertions, order "merits-based discovery," (Pl.' s Br., at 9). Rather,
the Court ordered the parties to engage in limited discovery to determine whether First Energy
was a proper party to the case.
The standard to determine whether an entity is the "employer" of a worker-plaintiff
raising an FLSA claim is whether that entity exercised "significant control" over the worker. In
re Enterprise Rent-A-Car Wage & Hour Empl. Practices Litig., 683 F.3d 462,468 (3d Cir. 2012)
(quoting NLRB v. Browning-Ferris Indus. of Pa., 691 F.2d 1117, 1124 (3d Cir. 1982). The Third
Circuit has announced a nonexhaustive list of factors for determining whether an entity is an
employer or joint employer of a given employee. 1 "Does the alleged employer have: (1)
authority to hire and fire employees; (2) authority to promulgate work rules and assignments, and
set conditions of employment, including compensation, benefits, and hours; (3) day-to-day
supervision, including employee discipline; and (4) control of employee records, including
payroll, insurance, taxes, and the like." In re Enter., 683 F.3d at 469.
The Enterprise test, and not the "economic realities test," which courts use to determine
whether a worker is an "employee'' for FLSA purposes, applies to the threshold question of
whether Defendant employed Plaintiff. Plaintiffs accusations that Defendant "forestalled the
typical FLSA conditional certification discovery process and [took] advantage of the delay
pending this initial issue that rightly should have been decided at the second stage of
certification," (ECF No. 46, at 9), therefore lack foundation. Any merits-based defenses,

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The Court uses the word "employee" solely for ease of reference. Whether Plaintiff and the putative class members
are employees or independent contractors is an issue yet to be determined.

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including a defense that an employer had no employees, will indeed be resolved at the second
stage of certification. See, e.g., Zavala v. Wal Mart Stores, Inc., 691 F.3d 527, 536-37 (3d Cir.
2012). But an inquiry into whether a purported employer is a proper defendant in the first place
is not a merits-based defense. Asking the Court for a limited inquiry into whether Defendant
even employed Plaintiff is far from "extraordinary," nor has it prevented Plaintiff from asserting
her rights. To the extent that anyone insists on a "merits-first approach," it is Plaintiff, who has,
contrary to Court Order, repeatedly requested discovery going to the issue of whether Plaintiff
was properly classified as an independent contractor.
Relatedly, Plaintiff avers that First Energy has "misled Ewing and the other potential
class

members"

into

thinking

they

were

independent

contractors,

and

that

this

"misrepresentation" suffices to toll the limitations period. (ECF No. 46, at 11.) That is because,
Plaintiff says, this alleged wrongdoing presents Podobnik's first situation where equitable tolling
is appropriate: "where the defendant has actively misled the plaintiff respecting the plaintiffs
cause of action, and that deception causes non-compliance with an applicable limitations
provision," 409 F.3d at 591. Not so. Again, whether Plaintiff is an employee or an independent
contractor is a merits question, and she may not bootstrap this inquiry to accuse Defendant of
misleading her and others as to their status.
Plaintiffs cited cases point out what type of defendant conduct is actually misleading or
extraordinary in this context. See, e.g., Kim v. Dongbu Tour & Travel, Inc., 2013 WL 5674395,
at *4 (D.N.J. Oct. 16, 2013) (granting tolling when defendants failed to post notice,
misrepresenting the employees' status after the court had determined as a matter of law that they
were employees and not independent contractors, bringing a frivolous appeal, and retaliating
against the plaintiffs); Yahraes v. Rest. Assocs. Events Corp., No. 10-cv-935, 2011 WL 844963,

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at *3 (E.D.N.Y Mar. 8, 2011) (granting tolling because defendants withheld documents from the
plaintiff related to the investigation and asked the court to decide defendants' motion to dismiss
before certification); Antonio-Morales v. Bimbo's Best Produce, Inc., No. 8:5105, 2009 WL
1591172 (E.D. La. Apr. 20, 2009) (granting tolling in light of pending criminal action against
employer).
Given her repeated filings on the same topic despite the Court's straightforward
instructions to the parties on August 17, 2018, it appears to the Court that any delay in discovery
here can be fairly attributed to Plaintiff, and not to Defendant. Thus, Plaintiff has not carried her
burden to demonstrate that any of the factors justifying equitable tolling exist. Her Motion to
Extent Time to Statute of Limitations, ECF No. 45, will therefore be denied. Of course, this
conclusion does not preclude Plaintiff from later seeking equitable tolling, upon a proper
showing of the presence of one of the factors outlined in Podobnik.
B. Motion to Compel
Plaintiff advances related arguments in her Motion to Compel, ECF No. 59, in which she
asks the Court to compel responses to several interrogatories, requests for production, and a Rule
30(b)(6) notice. (See Motion to Compel, at 1-2.) She argues that she seeks "routine FLSA,
independent contractor, discovery" but that Defendant has "stonewalled all attempts at discovery
on [the] 'gateway' issue" of whether Defendant is Plaintiffs employer or joint employer. (Id. at
1.)

Defendant responds that Plaintiff has misstated the applicable law by averring that the
Enterprise employer/joint employer test overlaps with the economic realities test. Defendant

contends that Plaintiffs requests fall outside the authorized first phase of discovery, and that it

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has fully responded to Plainitff s First Amended Interrogatories and her First Requests for
Production. (See Opposition to Motion to Compel, ECF No. 61 ("Def.'s Opp."), at 1-2; 11.)
For the reasons that follow, Plaintiffs Motion to Compel will be denied.

1. Enterprise and economic realities tests
Plaintiff argues that there is "clear overlap" between the Enterprise joint employer factors
and the economic realities factors, (Motion to Compel, at 2), and that because Defendant's
purported misclassification of Plaintiff as an independent contractor is "at the heart of this
dispute," (id. at e), it is entitled to discovery under both the economic realities and joint
employment test. However, the Court explicitly told the parties on multiple occasions that the
first phase of discovery was limited to "whether FirstEnergy is an employer or joint employer of
Plaintiff." (Initial Case Mgmt. Order, at 2.)
For the sake of comparison, the two tests, both composed of nonexhaustive factors, are as
follow:
a. Economic Realities Test

1) [T]he degree of the alleged employer's right to control the manner in which the
work is to be performed; 2) the alleged employee's opportunity for profit or loss
depending upon his managerial skill; 3) the alleged employee's investment in
equipment or materials required for his task, or his employment of helpers; 4)
whether the service rendered requires a special skill; 5) the degree of permanence
of the working relationship; 6) whether the service rendered is an integral part of
the alleged employer's business.
Martin v. Selker Bros., Inc., 949 F.2d 1286, 1293 (3d Cir. 1991).
b. Enterprise Joint Employer Test

1) the alleged employer's authority to hire and fire the relevant employees; 2) the
alleged employer's authority to promulgate work rules and assignments and to set
the employees' conditions of employment: compensation, benefits, and work
schedules, including the rate and method of payment; 3) the alleged employer's
involvement in day-to-day employee supervision, including employee discipline;

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and 4) the alleged employer's actual control of employee records, such as payroll,
insurance, or taxes.
In re Enter., 683 F .3d at 469.
As the reader can see, the economic realities test focuses on what the employee is doing
for the purported employer, while the Enterprise test focuses on what the employer is doing visa-vis the purported employee. The two tests, of course, contain a similar question-what kind of
authority, if any, does the alleged employer have over the alleged employee? But in the
economic realities test, this inquiry goes to whether the employer, as opposed to the alleged
employee, can decide the manner of the alleged employee's work. By contrast, in the Enterprise
test, the inquiry is whether this alleged employer, as opposed to some other entity or individual,
can fire or hire the alleged employee.
Plaintiff argues that she "is entitled to answers regarding what First Energy intends to use
to support its claim that Ewing was properly classified as an independent contractor." (Motion to
Compel, at 4.) That's not quite right. Plaintiff is entitled to answers regarding whether Defendant
employed or jointly employed her. Once that question is resolved, she may, pending further
Order of the Court, proceed with discovery relating to whether she was properly classified as an
independent contractor.
A review of Defendant's responses to Plaintiffs First Amended Interrogatories and First
Amended Requests for Production, as provided by the parties, reveals that Defendant has
consistently declined to answer questions related to the economic realities test. Rather, it
explained its position under the Enterprise test, namely that Plaintiffs employer was Spring
Creek Acquisitions, LLC, and/or Bums & McDonnell Engineering Co. Inc., and that Defendant
did not employ Plaintiff. (See Exhibit E, ECF No. 61-5 ("Def.'s Objections to First Amended
Interrogatories"), at 2-3 (providing full answer to Interrogatory No. 1).)
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Plaintiff protests that the Court did, in fact, expand the scope of discovery when it told
the parties that it was not "out of bounds" for Plaintiff to inquire into "how those in the same job
category or assigned the same task were also treated." (TSC Tr., at 24.) But the Court did not
intimate that this entitled Plaintiff to discovery on the economic realities test or whether Plaintiff
was similarly situated to other employees for conditional certification purposes. Instead, the
Court clarified that the proper inquiry was "what [Plaintiffs] status was, whether she was by
statute and regulation ... treated as an employee." (Id.) Thus, Defendant's response to Plaintiffs
Interrogatory No. 6, which sought a description of differences between Plaintiff and other Right
of way agents, answered Plaintiffs question within the scope of the Court's clarification. (See
Def.'s Objections to First Amended Interrogatories, at 6 ("Defendant states that Plaintiff and
other Right of Way agents supplied by Spring Creek were assigned to Defendant's projects by
Spring Creek and were supervised by Spring Creek and/or Bums & McDonnell.").)
For similar reasons, Plaintiffs objections to Defendant's answers to other interrogatories
are without merit. It may well be that Plaintiff is displeased or frustrated that Defendant lacks
information about some topics-for instance, Plaintiffs direct supervisors-because Defendant
states that Spring Creek and/or Bums & McDonnell (and not First Energy) supervised Plaintiff.
However, the question at this stage is whether Defendant employed Plaintiff. If it did not, which
is a matter yet to be determined, then Defendant would not have such information. In that case,
discerning whether Plaintiff was properly classified as an independent contractor would be better
resolved with her actual employer added as a party. In fact, the parties advise that Plaintiff did
indeed file a motion to compel subpoena responses against Bums & McDonnell, in a separate
forum. (See Reply, ECF No. 62, at 3.)

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Relatedly, Plaintiff has submitted exhibits as purported examples of standards or
requirements for her work, which she claims contradict Defendant's assertion that it had no such
standards or requirements pertaining to Plaintiff in particular. Aside from a "Contact Report"
format that uses the FirstEnergy logo, and an email from FirstEnergy's in-house counsel CCing
Ms. Ewing on an ongoing negotiation, these documents do not facially indicate that Defendant
(and not Spring Creek, Bums McDonnell, or some other entity) supplied them to Ms. Ewing.
(See Exh. 11, ECF No. 59-11; Exh. 13, ECF No. 59-13.) The Court will not compel Defendant

to respond further.

2. Rule 34 withholding statement
Plaintiff also alleges that Defendant failed to provide a withholding statement as
contemplated by Fed. R. Civ. P. 34(b)(2)(C). Rule 34(b)(2)(C) provides that a party objecting to
a production request "must state whether any responsive materials are being withheld on the
basis of that objection." However, the Court does not identify any objection in Defendant's
responses that is not based in a general objection to discovery on the economic realities test-in
other words, Defendant objected to inquiries that the Court did not authorize at this stage. Rule
34 does not require a withholding statement where entire topics have been taken off the table by
court order and a party declines to respond to interrogatories on such topics. Additionally, the
parties report that after they conferred regarding the scope and meaning of Plaintiffs requests,
Defendant supplemented its production request. (See Motion to Compel, at 9-12; Def.' s Opp., at
16-17.)

3. Objections to 30(b)(6) Notice
Plaintiff also argues that Defendant improperly objected to her Rule 30(b)(6) Deposition
Notice, and that its objections go not only to the economic realities test, but to the Enterprise

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joint employer test as well. (Motion to Compel, at 12.) For substantially the same reasons as
outlined above, the Court will not overrule Defendant's objections to the extent that the Notice
seeks information relevant to the economic realities test. The Court reviewed Defendant's
Objections, ECF No. 59-9, and does not identify any objections to discovery pertaining to the
Enterprise test. Plaintiffs request will be denied.

C. Conclusion
For the foregoing reasons, Plaintiffs Motion to Extend Time to Statute of Limitations
and her Motion to Compel will be denied. An appropriate Order will issue.

Mark R. Hornak
United States District Judge

Dated: December).( , 2018
cc:
All counsel of record

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