Bowman et al v. Crossmark, Inc
Filing
102
MEMORANDUM AND OPINION as set forth in following order.Signed by District Judge R Leon Jordan on 7/5/12. (ABF)
IN THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF TENNESSEE
KNOXVILLE DIVISION
KATHI BOWMAN, INDIVIDUALLY
AND ON BEHALF OF ALL OTHER
PERSONS SIMILARLY SITUATED,
Plaintiff,
v.
CROSSMARK, INC.,
Defendant.
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No. 3:09-CV-16
MEMORANDUM OPINION
This civil action is before the court on “Defendant Crossmark, Inc.’s Motion
for Summary Judgment” [doc. 56].1 Plaintiffs have filed a response [doc. 68], and defendant
has submitted a reply [doc. 72]. Oral argument is unnecessary, and the motion is ripe for the
court’s consideration and determination.
Plaintiffs have brought suit for alleged violation of the Fair Labor Standards
Act (“FLSA”), 29 U.S.C. § 206(a) and § 207(a). Plaintiff Kathi Bowman has also brought
claims for retaliatory discharge under the FLSA, 29 U.S.C. § 215(a)(3), and based upon
Tennessee common and statutory law under the Tennessee Public Protection Act (“TPPA”),
1
Defendant’s motion seeks summary judgment on all the claims asserted by plaintiffs Kathi
Bowman and Cheryl Bean. Plaintiffs’ second amended complaint [doc. 54] filed on January 26,
2011, contains collective action allegations. Prior to the filing of this amended complaint, on July
19, 2010, the court entered a memorandum opinion and order [docs. 47, 48] denying plaintiffs’
“Motion for Conditional Certification of Collective Action and for Court Approved Notice to
Members of Collective Class” [doc. 18]. Thus, the only claims that remain before the court are those
of the individual plaintiffs.
Tenn. Code Ann. § 50-1-304. Plaintiff Cheryl Bean has brought common law claims for
debt, quantum meruit, and unjust enrichment under Texas law and a statutory claim pursuant
to the Texas Payday Law, Texas Labor Code § 61.001 et seq. For the reasons that follow,
the motion will be granted in part and denied in part.
I.
Background
Defendant, Crossmark, Inc. (“Crossmark”), provides sales and retail
merchandising and inventory support services to retailers and consumer goods
manufacturers. These services are provided by employees called “retail representatives.”
According to Crossmark, this group includes more than 12,000 employees nationwide who
are divided into different divisions and who perform different roles and duties. The
representatives are also located in different territories and report to different supervisors.
The supervisors provide retail representatives with instructions and suggestions regarding
how best to perform administrative tasks and their store work assignments.
Retail
representatives are employed full time, regular part-time, or surge part-time. Full-time
representatives work 40 hours per week; regular part-time representatives generally work less
than 40 hours per week but do receive regular ongoing work assignments and objectives.
Surge part-time representatives are employed on an “on-call” basis and work irregular hours.
Crossmark considers retail representatives non-exempt under the FLSA and pays them on an
2
hourly basis.
Crossmark has a standard job description for a Retail Representative that
includes a list of “Essential Duties and Responsibilities.” That list states that a retail
representative:
1. Schedules tasks on weekly basis to meet execution objectives
2. Executes retail merchandising tasks as scheduled
3. Performs stores/tasks in efficient/cost effective manner
4. Accurately reports all completed retail tasks via the
appropriate designated systems on the day the work is performed
5. Communicates effectively with store personnel regarding
tasks, sales activities, promotions, and client/sales plan
objectives
6. Completes required training and certification programs
7. Engage every workday with CROSSMARK’S communication
tools for the purpose of accurately planning, reporting, and
reviewing work
8. Ability to implement retail schematics and merchandising
materials as assigned
9. Flexibility to participate in team scheduled tasks and clients
work-withs (sic)
10. Dedicated to providing excellent customer service and to
develop a professional working relationship with store
management, associates and other merchandising companies to
effectively meet company and client objectives
11. Insures proper maintenance on all company equipment
12. Follows company policies, procedures, and position
responsibilities
The job description also notes that representatives may be required to perform other jobrelated tasks as directed by management other than those listed. In addition to in-store duties,
representatives perform certain work-related tasks outside of the stores. These administrative
duties include checking emails, confirming work schedules, contacting a supervisor, and
3
reporting to SalesTrak, the computer program used by representatives to self-report their time
worked. Crossmark pays its representatives for this administrative time.
Crossmark also has a “Drive Time” policy related to retail representatives
which states as follows:
Non-exempt associates are “on the clock” once the associate
arrives at the first work location of the day and goes “off the
clock” once the associate leaves the last work location of the
day. Drive time between work locations during the day is to be
recorded as time worked. Time spent on personal stops and
lunch breaks between work locations is not considered drive
time. However, the theoretical drive time between store
locations will be paid in the event the associate deviates from
their recommended coverage routes for personal stops . . . .
For retail associates, certain territories/work assignments may
require longer than normal drive times to the first work location
of the day. For those assignments, the associate will “go on the
clock” after the first hour of drive time and will go “off the
clock” at the beginning of the last hour of travel home. The
supervisor will determine if this applies to the associate.
Therefore, the associate is not paid for the first hour of drive
time to his/her work location of the day or for the last hour of
drive time when returning home.
Retail representatives are not required to work during drive time and are discouraged from
doing so. Further, representatives are completely relieved during drive time. Both plaintiffs
acknowledged and signed the drive-time policy, agreeing to abide by it.
Plaintiff Kathi Bowman (“Bowman”) was hired by Crossmark as a “Surge”
Retail Representative on March 17, 2006. Bowman worked mostly in and around the
LaFollette, Tennessee area, and her field supervisor was Malinda Hackworth. Hackworth
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reported to her Regional Operations Manager at the time, Tom Miller. Bowman was
terminated on July 31, 2008. Crossmark states that Bowman was terminated because she
continued to refuse to comply with the drive-time policy. Bowman’s position is that she was
terminated in retaliation for complaining about the drive-time policy, which she claims is
illegal.
Prior to July 2008, Bowman had several conversations with Hackworth in
which Bowman contended that based upon an IRS position, she was entitled to be paid for
all of her drive time.2 Bowman maintained to Hackworth that the policy was illegal and she
would not follow it. Hackworth’s deposition testimony and declaration indicate that she had
suspicions that Bowman was not following the policy despite checking her entries
periodically.
On July 14, 2008, a payroll associate, Tine Rodriguez, received an automated
payroll flag for excessive drive-time entries for Bowman on July 7 and 9, 2008. Rodriguez
contacted Bowman and Hackworth, and eventually Rodriguez’s supervisor became involved.
On July 15, Hackworth contacted Miller informing him that Bowman was not following the
drive-time policy. Miller responded that Bowman’s drive time needed to be closely
monitored. Also on July 15, Miller confirmed the drive-time policy with Fisher and asked
Hackworth to reiterate the policy to Bowman. Hackworth forwarded Fisher’s email to
2
The factual events that follow concerning Bowman only provide a basic time-line
framework for purposes of background. The record presented by the parties is beyond voluminous
and will not be completely restated herein.
5
Bowman. On July 16 Miller emailed Hackworth that “if we continue to have issues with her
we may need to start with a counseling form and move forward from there.”
On July 18, Bowman sent an email to Fisher explaining her position concerning
the drive-time policy based upon the IRS publication. In an email sent July 21, Miller asked
Rodriguez to provide a list of Bowman’s payroll entries for July 14-July 18, 2008, which
Rodriguez sent at 7:23 p.m. July 21. At 8:06 p.m. the same evening, Miller sent an email to
Rodriguez and Hackworth saying that “this has to end and we need to make sure all of us,
payroll, HR, Malinda and I are all in agreement that we need to move to terminate her as
soon as possible . . . .” The next morning, July 22, 2008, Bowman informed Fisher, Miller,
Hackworth and Rodriguez that she had obtained counsel. Bowman was not notified of the
termination decision until July 31, 2008, because Miller had to obtain approval from
Employee Relations.
Plaintiff Cheryl Bean (“Bean”)3 was employed by Crossmark as a part-time
retail representative from approximately May 2006 through October 2008, when she was
terminated. She worked primarily in and around the Kountze, Texas area. She worked on
the Wal-Mart team, meaning she worked exclusively in Wal-Mart stores. Michelle Oatman
was Bean’s supervisor for the majority of her employment.
Both plaintiffs’ position is that they were required to perform job-related
activities in their homes immediately before traveling to their first retail location and
3
Plaintiff Bowman filed the original complaint January 12, 2009. An amended complaint
adding Bean as a named plaintiff was filed October 28, 2009 [doc. 16].
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immediately after returning home from their last retail location. Their contention is that
because their workday began with job-related tasks at home, the drive time to their first retail
location should have been part of the continuous workday and compensable. The drive time
home should also be compensable because their workday did not end until they completed
job-related tasks at home after returning from the last retail location. Crossmark’s position
is that the administrative duties plaintiffs performed were not required to be done at home
at a specific time and could have been accomplished at various times of the day, wherever
the employee had access to the internet.
II.
Standard of Review
Crossmark’s motion is brought pursuant to Federal Rule of Civil Procedure 56,
which governs summary judgment.4 Rule 56(a) sets forth the standard for summary
judgment and provides in pertinent part: “The court shall grant summary judgment if the
movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” The procedure set out in Rule 56(c) requires that
“[a] party asserting that a fact cannot be or is genuinely disputed must support the assertion.”
4
Federal Rule of Civil Procedure 56 was amended effective December 1, 2010. The
Advisory Committee Notes to the 2010 amendments reflect that the standard for granting summary
judgment “remains unchanged,” and “[t]he amendments will not affect continuing development of
the decisional law construing and applying [that standard].” Fed. R. Civ. P. 56 advisory committee’s
note.
7
This can be done by citation to materials in the record, which include depositions,
documents, affidavits, stipulations, and electronically stored information. Fed. R. Civ. P.
56(c)(1)(A). Rule 56(c)(1)(B) allows a party to “show[] that the materials cited do not
establish the absence or presence of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact.”
After the moving party has carried its initial burden of showing that there are
no genuine issues of material fact in dispute, the burden shifts to the non-moving party to
present specific facts demonstrating that there is a genuine issue for trial. Matsushita Elec.
Indus. Co., v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). “The ‘mere possibility’ of
a factual dispute is not enough.” Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992)
(citing Gregg v. Allen-Bradley Co., 801 F.2d 859, 863 (6th Cir. 1986)).
In order to defeat the motion for summary judgment, the non-moving party
must present probative evidence that supports its complaint. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249-50 (1986). The non-moving party’s evidence is to be believed, and all
justifiable inferences are to be drawn in that party’s favor. Id. at 255. The court determines
whether the evidence requires submission to a jury or whether one party must prevail as a
matter of law because the issue is so one-sided. Id. at 251-52.
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III.
Analysis
The FLSA
Congress enacted the FLSA in 1938 “to correct existing ‘labor conditions
detrimental to the maintenance of the minimum standard of living necessary for health,
efficiency, and general well-being of workers.’” In re Cargill Meat Solutions Wage & Hour
Litig., 632 F. Supp. 2d 368, 377 (M.D. Pa. 2008) (citing 29 U.S.C. § 202(a)).
Section
207(a)(1) of the FLSA provides:
Except as otherwise provided in this section, no employer shall
employ any of his employees . . . 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.
Brock v. City of Cincinnati, 236 F.3d 793, 800 (6th Cir. 2001) (quoting 29 U.S.C. §
207(a)(1)). “Neither ‘work’ nor ‘workweek’ is defined in the statute.” IBP, Inc. v. Alvarez,
546 U.S. 21, 25 (2005). Early Supreme Court cases defined these terms broadly. Id. The
Supreme Court in Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590,
598 (1944) defined “work” as “physical or mental exertion (whether burdensome or not)
controlled or required by the employer and pursued necessarily and primarily for the benefit
of the employer and his business.” In Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680
(1946), the Supreme Court “defined ‘the statutory workweek’ to ‘includ[e] all time during
which an employee is necessarily required to be on the employer’s premises, on duty or at
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a prescribed workplace’ . . . [and] held that the time necessarily spent by employees walking
from timeclocks near the factory entrance gate to their workstations must be treated as part
of the workweek.” IBP, 546 U.S. at 25-26 (citing Anderson, 328 U.S. at 690-92).
In 1947, in response to Anderson and “[b]ased on findings that judicial
interpretations of the FLSA had superseded long-established customs, practices, and
contracts between employers and employees, thereby creating wholly unexpected liabilities,
immense in amount and retroactive in operation,” Congress passed the Portal-to-Portal Act.
IBP, 546 U.S. at 26 (internal quotation marks and citation omitted). The Portal-to-Portal Act
“narrowed the coverage of the FLSA by excepting two activities that had been treated as
compensable under [Supreme Court] cases: walking on the employer’s premises to and from
the actual place of performance of the principal activity of the employee, and activities that
are ‘preliminary or postliminary’ to that principal activity.” Id. at 27. The Portal-to-Portal
Act provides in pertinent part:
[N]o employer shall be subject to any liability or punishment
under the Fair Labor Standards Act of 1938, as amended, . . . on
account of the failure of such employer to pay an employee
minimum wages, or to pay an employee overtime compensation,
for or on account of any of the following activities of such
employee . . .
(1) walking, riding, or traveling to and from the actual place of
performance of the principal activity or activities which such
employee is employed to perform and
(2) activities which are preliminary to or postliminary to said
principal activity or activities, which occur either prior to the
time on any particular workday at which such employee
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commences, or subsequent to the time on any particular workday
at which he ceases, such principal activity or activities.
29 U.S.C. § 254(a).
Other than these express exceptions, “the Portal-to-Portal Act does not purport
to change [the Supreme Court’s] earlier descriptions of the terms ‘work’ and ‘workweek,’
or to define the term ‘workday’.” IBP, 546 U.S. at 28. Regulations promulgated by the
Secretary of Labor after the Portal-to-Portal Act was passed “concluded that the statute had
no effect on the computation of hours that are worked ‘within’ the workday.”
Id.
Additionally, “the Department of Labor has adopted the continuous workday rule, which
means that the ‘workday’ is generally defined as ‘the period between the commencement and
completion on the same workday of an employee’s principal activity or activities.’” Id. at 29
(citing 29 CFR § 790.6(b)).
Section 206 of the FLSA deals with the requirement to pay minimum wage.
It provides in relevant part:
Every employer shall pay to each of his employees who in any
workweek is engaged in commerce or in the production of
goods for commerce, or is employed in an enterprise engaged in
commerce or in the production of goods for commerce, wages
at the following rates:
(1)
except as otherwise provided in this section, not less than
-(A) $5.85 an hour, beginning on the 60th day after May
25, 2007;
(B) $6.55 an hour, beginning 12 months after that 60th
day; and
(C) $7.25 an hour, beginning 24 months after that 60th
day; . . . .
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29 U.S.C. § 206(a).
Plaintiffs’ FLSA Claims
Section 206(a) Claims
Both plaintiffs asserted claims for alleged violation of § 206(a) of the FLSA.
As noted above, section 206(a) requires employers to pay employees the minimum wage
rates set out in the statute. At the end of July 2008, the minimum wage rate rose from $5.85
to $6.55 per hour. Bowman was being paid $10.75 per hour in July 2008 while Bean began
employment in May 2006 with a wage of $10.00 per hour, which rose to $10.20 per hour in
May 2007. That rate remained her wage until her termination in October 2008. Crossmark
argues, and both plaintiffs have no evidence to the contrary, that even if the drive time at
issue were compensable, failure to pay for that time did not reduce the wage of either
plaintiff below the minimum wage level. Consequently, both plaintiffs’ claims based upon
a violation of § 206(a) fail.
Neither Bowman nor Bean can establish a minimum wage violation as they
have presented no proof to demonstrate that any failure to pay them drive time resulted in
their being paid below minimum wage. Consequently, the § 206(a) claims for both plaintiffs
fail and will be dismissed.
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Section 207(a) Claims
Section 207(a) of the FLSA addresses the required payment of overtime by
employers. Again, both plaintiffs asserted claims for failure to pay overtime based upon
nonpayment of drive time. However, Bean has presented no proof that she, as a part-time
employee, worked overtime without payment and thus cannot establish an overtime violation
claim. Accordingly, her § 207(a) claim will be dismissed, and the court will only address
Bowman’s FLSA overtime claim.
With regard to Bowman’s § 207(a) claim, she admits in her response to
Crossmark’s motion for summary judgment that prior to July 22, 2008, she did not lose any
overtime compensation because she reported all of her drive time and thus was paid for all
of her drive time up until July 22, 2008. Bowman was terminated July 31, 2008, so her
overtime claim covers only the time she worked between July 22, 2008, and July 31, 2008,
when she reported her drive time in compliance with Crossmark’s policy.
Under the requirements of the FLSA, employers must “pay their employees
time-and-a-half for work performed in excess of forty hours per week.” Acs v. Detroit
Edison Co., 444 F.3d 763, 765 (6th Cir. 2006). The employee has the burden of proving “by
a preponderance of the evidence that he or she ‘performed work for which he [or she] was
not properly compensated.’” Myers v. Copper Cellar Corp., 192 F.3d 546, 551 (6th Cir.
1999) (quoting Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 686-87 (1946)). If
liability is established, the employee can prove damages “through discovery and analysis of
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the employer’s code-mandated records.” Id. (citing Mt. Clemens Pottery, 328 U.S. at 687).
Bowman bases her overtime claim on the contention that her drive time is
compensable under the continuous workday rule. Her argument is that because she was not
paid for all her drive time, she did not receive compensation for the hours over 40 that she
worked in a week. Bowman contends that her drive time falls within the continuous workday
rule because at the beginning and end of each workday she was required to perform tasks that
were integral and indispensable to the principal activities of her job.
Crossmark argues that the duties Bowman performed at the beginning and end
of the workday were not integral and indispensable and did not trigger the continuous
workday rule. Crossmark maintains that Bowman was not required to do the administrative
tasks immediately before leaving home or immediately upon returning home and that she was
completely relieved during her commute time.
The general rule has always been that under the FLSA, ordinary home to
workplace travel is not compensable.5 Kuebel v. Black & Decker, Inc., 643 F.3d 352 (2nd
Cir. 2011); Kavanagh v. Grand Union Co., 192 F.3d 269 (2d Cir. 1999).
An employee who travels from home before his regular workday
and returns to his home at the end of the workday is engaged in
ordinary home to work travel which is a normal incident of
employment. This is true whether he works at a fixed location
or at different job sites. Normal travel from home to work is not
worktime.
5
“The regulations have reflected this fact for at least fifty years.” Kuebel v. Black & Decker,
Inc., 643 F.3d 352, 360 (2nd Cir. 2011) (citing 29 C.F.R. § 785.35; 26 Fed.Reg. 190, 194 (Jan. 11,
1961)).
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29 C.F.R. § 785.35 (emphasis added).
Crossmark relies heavily on Kuebel, a recent Second Circuit case remarkably
similar to this one. Kuebel was a Retail Specialist for Black & Decker (“B&D”) whose
responsibilities included making sure that B&D products were properly stocked, shelved, and
supplied at Home Depot stores. This required him to drive to various store locations. Retail
Specialists were also required to use Personal Digital Assistants (PDAs”) to record store
time. The PDAs had to be synchronized with B&D’s server which Kuebel did from his home
computer. Kuebel also performed other tasks from his home office, including dealing with
emails, checking voicemail, reviewing and printing sales reports, and taking online training
courses. These activities took fifteen to thirty minutes in the morning before Kuebel left for
his first store and fifteen to thirty minutes after he returned home from his last store at the
end of the day. B&D asserted that Kuebel was not required to perform all of these tasks at
home or at a particular time. B&D had a commute time policy which paid Retail Specialists
for driving time to and from their first and last Home Depot Store to the extent the time was
in excess of sixty miles. Kuebel’s manager instructed him to use sixty minutes as the
measure of compensable driving time.
Kuebel brought a claim for commute time based upon the continuous workday
rule theory. He sought compensation for all of his commuting time because he contended
that the administrative tasks he performed at home were integral and indispensable to his
principal job activities.
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The district court had held that Kuebel’s administrative tasks done at home
were not integral and indispensable to his principal job activities and did not extend the
workday, so his commute time was not compensable. The Second Circuit confirmed this part
of the district court’s opinion, but based upon different reasoning. Kuebel 643 F.3d at 361
n.4.
In its analysis, the Second Circuit referenced by analogy 29 C.F.R. § 785.16,
a regulation that applies in the context of whether time spent waiting is compensable, which
has been used by courts in cases like this one. The regulation provides that “[p]eriods during
which an employee is completely relieved from duty and which are long enough to enable
him to use the time effectively for his own purposes are not hours worked.” 29 C.F.R. §
785.16(a).
The Court cited as examples two cases, Rutti v. Lojack Corp., 596 F.3d 1046
(9th Cir. 2010) and Ahle v. Veracity Research Co., 738 F. Supp. 2d 896 (D.Minn. 2010).
With regard to these cases, the Second Circuit noted:
[I]n Rutti v. Lojack Corp., 596 F.3d 1046, 1060 (9th Cir. 2010),
the Ninth Circuit held that a technician’s evening commute was
not rendered compensable merely because he performed the
arguably principal activity of uploading data to his employer
after returning home, because he was free to “make the
transmission[ ] at any time between 7:00 p.m. and 7:00 a.m.”
Similarly, in Ahle v. Veracity Research Co., 738 F.Supp.2d 896,
917 (D.Minn. 2010), the court held that even if the plaintiff
private investigators’ pre- and post-surveillance activities – e.g.,
performing background checks and submitting reports –
qualified as principal, that did not extend their workday to
include the time spent driving to and from a surveillance site,
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since “Plaintiffs were not required to perform the activities ...
immediately prior to leaving for an investigation or immediately
after returning home.”
Kuebel, 643 F.3d at 360 (emphasis added). The Second Circuit in Kuebel concluded that a
similar analysis applied:
[I]t cannot seriously be disputed that Kuebel had flexibility in
deciding when to complete his daily administrative
responsibilities of checking email, checking voicemail, synching
his PDA, printing sales reports, making signs, and so forth. The
record indicates only that it might have been necessary to
perform certain activities in the morning, or in the evening. It
does not indicate that Kuebel was required to perform them
immediately before leaving home, or immediately after returning
home. Indeed, there is nothing in the record to suggest that a
Retail Specialist could not, for example, wake up early, check
his email, synch his PDA, print a sales report, and then go to the
gym, or take his kids to school, before driving to his first Home
Depot store of the day; nor was Kuebel prevented from leaving
his last store of the day and going straight to a restaurant for
dinner, or waiting until late at night to synch his PDA (as
electronic records show he sometimes did). That Kuebel may
have frequently chosen to perform his at-home activities
immediately before and after his commutes does not mean that
B&D must pay him for the first hour of those drives – time that
was not part of his continuous workday and that was, in the end,
“ordinary home to work travel” outside the coverage of the
FLSA.
Id. at 360-61 (citations omitted).
The reasoning and analysis in Kuebel can be applied in this case. The key
element noted by the Second Circuit was the flexibility that Kuebel had regarding when he
performed his administrative tasks at home. The record did not reflect any requirement that
they be done immediately before leaving in the morning or immediately upon returning in
17
the evening. This was a significant factor in both Rutti and Ahle as well. Crossmark argues
that Bowman was not required to do her administrative duties immediately before leaving
or returning home and that there is no company policy that requires these duties be performed
at a particular time or place. Bowman has, however, in response to the summary judgment
motion, submitted a declaration in which she makes statements concerning written and verbal
instructions given to her concerning when she was to perform administrative tasks and how
quickly.6 Thus, there is an issue of fact whether Bowman was required to perform
administrative tasks immediately prior to leaving for her first retail location and immediately
after returning home from her last retail location.
Willfulness Claim
In an attempt to obtain a three-year statute of limitations under the FLSA,
plaintiffs assert a claim that Crossmark willfully violated the FLSA. 29 U.S.C. § 255. “An
ordinary violation of the FLSA is subject to a two-year statute of limitations. However,
6
The Bowman deposition excerpts and email references offered by Bowman in support of
her contention that she was required to perform administrative tasks immediately before leaving and
after returning do not support that contention. However, the declaration provided in response to the
summary judgment motion raises an issue of fact. In addition, Bowman has also provided in support
of her contention that she was required to do administrative tasks immediately before leaving home
and immediately after arriving home affirmations from litigants in a New Jersey case involving
Crossmark. The court has not considered these as they are irrelevant to Bowman’s individual §
207(a) case. What retail representatives were told in New Jersey is not relevant to what Bowman
was told in Tennessee by different supervisors. The same applies to Bean’s statements on the
subject. She no longer has a § 207(a) case, and the statements made to her by those named in her
deposition testimony have not been connected to Bowman and what she individually was told.
18
where a violation is ‘willful’ a three-year statute of limitations applies.” Dole v. Elliot Travel
& Tours, Inc., 942 F.2d 962, 966 (6th Cir. 1991) (citing McLaughlin v. Richland Shoe Co.,
486 U.S. 128, 135 (1988)). In order for a violation of the FLSA to be considered willful, a
plaintiff must show “that the employer either knew or showed reckless disregard for the
matter of whether its conduct was prohibited by the statute[.]” McLaughlin, 486 U.S. at 133;
Dole, 942 F.2d at 967. “Noncompliance with the FLSA that is merely negligent, even if
unreasonable, is not considered willful.” Monroe v. FTS USA, LLC, 763 F.Supp.2d 979, 991
(W.D.Tenn. 2011) (citing McLaughlin, 486 U.S. at 135 & n.13). The employee bringing the
FLSA claim has the burden of showing that the employer’s conduct was willful. Perez v.
Mountaire Farms, Inc., 650 F.3d 350, 375 (4th Cir. 2011).
In the court’s opinion, however, this issue does not need to be reached. The
only overtime claim remaining is Bowman’s individual claim for one week of unpaid
overtime in July 2008, the last week she was employed. She had admitted in her briefing that
she did not lose overtime compensation prior to July 22, 2008. Thus, whether a two-year or
three-year statute of limitations is applied is of no consequence. Bowman is not claiming
unpaid overtime for the entire expanse of her employment, March 17, 2006 - July 31, 2008;
she admits to only a claim of unpaid overtime covering one week. Accordingly, whether or
not there was a willful nonpayment of overtime in this case is moot.
19
Bowman’s Retaliation Claims
FLSA Retaliation
Bowman alleges that she was retaliated against when she asserted her rights
under the FLSA. The Act contains an anti-retaliation provision that makes it unlawful “to
discharge or in any other manner discriminate against any employee because such employee
has filed any complaint or instituted or caused to be instituted any proceeding under or
related to this chapter[.]” 29 U.S.C. § 215(a)(3). The McDonnell Douglas burden- shifting
analysis applies to FLSA retaliation claims. Adair v. Charter County of Wayne, 452 F.3d
482, 489 (6th Cir. 2006). “To establish a prima facie case of retaliation, an employee must
prove that (1) he or she engaged in a protected activity under the FLSA; (2) his or her
exercise of this right was known by the employer; (3) thereafter, the employer took an
employment action adverse to her; and (4) there was a causal connection between the
protected activity and the adverse employment action.” Id.
If the plaintiff successfully makes this prima facie showing, a presumption is
created that the employer unlawfully discriminated against the employee. Id. The burden
shifts to the employer to demonstrate a legitimate, non-discriminatory reason for the adverse
employment action. Id. If this burden is met, the plaintiff “must prove by a preponderance
of the evidence that the defendant’s proffered reasons were not its true reasons but merely
a pretext for illegal discrimination.” Id.
20
Crossmark argues that Bowman cannot establish a prima facie case because
she cannot show she engaged in protected activity and cannot show a causal connection
between her complaints and termination. As to the protected activity element, Crossmark
contends that Bowman’s prior complaints that according to the IRS her home was a work
location do not meet the purposes of the FLSA. Bowman contends that her complaints were
sufficiently clear and detailed as they identified the drive-time policy which she claims is
illegal. Bowman made verbal complaints to Hackworth and sent an email on July 18, 2008,
to Rodger Fisher, the HR Vice President. In the email, Bowman set forth her position that
her drive time was compensable based upon an IRS publication.
Based upon that
publication, she considered her home a work location, and the tasks she performed at home
began and ended her workday. Therefore, she should be paid for her drive time.
“To fall within the scope of the antiretaliation provision, a complaint must be
sufficiently clear and detailed for a reasonable employer to understand it, in light of both
content and context, as an assertion of rights protected by the statute and a call for their
protection. This standard can be met, however, by oral complaints, as well as by written
ones,” Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325, 1335 (2011).
Bowman’s complaints, while not specifically referencing the FLSA, did refer to a policy she
claimed to be illegal that implicated her wages. Bowman’s actions were sufficient to fall
within the protected activity of the FLSA.
21
Crossmark also asserts that Bowman is unable to demonstrate the fourth prong
of a prima facie case, a causal connection between the protected activity and her termination.
“In order to demonstrate a causal connection, ‘plaintiff must produce sufficient evidence
from which an inference can be drawn that the adverse action would not have been taken had
the plaintiff not [engaged in the protected activity].’” Adair, 452 F.3d at 490 (quoting Allen
v. Mich. Dep’t of Corr., 165 F.3d 405, 413 (6th Cir. 1999)). Bowman argues that the close
time proximity of events surrounding her termination establish a causal connection sufficient
for a prima facie case. She points out that on July 16, 2008, Miller’s position was “we may
need to start a counseling form and move forward from there.” On July 18, Bowman sent
her email to Fisher, and on Monday July 21, 2008, Miller’s position was that “this has to end
and we need to make sure all of us, payroll, HR, Malinda and I are in agreement that we need
to move to terminate her as soon as possible.” On July 22, 2008, Bowman sent an email
notifying Crossmark that she had retained counsel. Bowman was not notified of the
termination until July 31 because according to Miller he was seeking approval of his
superiors.
The Sixth Circuit has held that “[w]here an adverse employment action occurs
very close in time after an employer learns of a protected activity, such temporal proximity
between the events is significant enough to constitute evidence of a causal connection for the
purposes of satisfying a prima facie case of retaliation.” Thompson v. Quorum Health Res.,
LLC, No. 10-5685, 2012 WL 2368871, at *8 (6th Cir. June 22, 2012) (citing Mickey v.
22
Zeidler Tool & Die Co., 516 F.3d 516, 525 (6th Cir. 2008)). While Crossmark makes
numerous well crafted arguments explaining the facts surrounding this event, the pending
matter is before the court on summary judgment, and all justifiable inferences must be drawn
in the plaintiff’s favor. Bowman has presented sufficient evidence to at least raise a material
issue of fact concerning a causal connection between her protected activity and her
termination.
Because Crossmark has offered a legitimate explanation for terminating
Bowman, her violation of the drive-time policy, the next inquiry is whether that reason is just
a pretext. To demonstrate pretext, a “plaintiff must produce sufficient evidence from which
the jury may reasonably reject the employer’s explanation.” Manzer v. Diamond Shamrock
Chems. Co., 29 F.3d 1078, 1083 (6th Cir. 1994), abrogated on other grounds by Gross v.
FBL Fin. Servs., Inc., 557 U.S. 167 (2009).
With regard to pretext, the Sixth Circuit has stated:
To raise a genuine issue of material fact on the validity of an
employer’s explanation for an adverse job action, the plaintiff
must show, again by a preponderance of the evidence, either (1)
that the proffered reasons had no basis in fact; (2) that the
proffered reasons did not actually motivate the action; or (3)
that they were insufficient to motivate the action.
Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 883 (6th Cir. 1996)(citations omitted); see
also Chen v. Dow Chem. Co., 580 F.3d 394, 400 n.4 (6th Cir. 2009) (the court asks “whether
the plaintiff has produced evidence that casts doubt on the employer’s explanation, and, if
so how strong it is.”). At all times, the ultimate burden of persuasion remains with the
23
plaintiff. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Crossmark’s reason has a basis in fact since there is proof that Bowman
violated the drive-time policy, even admitting to doing so. Violation of company policy is
arguably sufficient for termination, especially since she signed and agreed to follow the
policy. The inquiry then centers around whether the proffered reason actually motivated the
termination, i.e., whether Bowman present sufficient evidence to cast doubt on Crossmark’s
explanation. The question is a close one. Crossmark offers very cogent arguments for why
its explanation is not a pretext for discrimination. Nevertheless, Bowman has offered proof
of a tight sequence of events involving the decisionmaker, Miller, the timing of which casts
doubt on Crossmark’s explanation. The court concludes that there is a material issue of fact
concerning pretext, precluding summary judgment.
TPPA Claim
Bowman asserts a claim under the TPPA for retaliatory discharge based on her
alleged complaints regarding Crossmark’s failure to pay for compensable drive time. Under
the TPPA, “the plaintiff must demonstrate an exclusive causal relationship between his
whistleblowing activity and his subsequent discharge. That is, the plaintiff must show that
he was terminated solely because of his whistleblowing activity.” Sacks v. Jones Printing
Co., Inc., No. 1:05-CV-131, 2006 WL 686874, at *3 (E.D. Tenn. Mar. 16, 2006) (citing
Darnall v. A+ Home Care, Inc., No. 01-A-01-9807-CV-0034, 1999 WL 346225, at *5 (Tenn.
24
Ct. App. June 2, 1999)) (emphasis in original).7
In order to establish a prima facie case under the TPPA, a plaintiff must
demonstrate four elements:
(1) The plaintiff’s status as an employee of the
defendant;
(2) The plaintiff’s refusal to participate in, or to
remain silent about, illegal activities;
(3) The employer’s discharge of the employee;
and
(4) An exclusive causal relationship between the
plaintiff’s refusal to participate in or remain silent
about illegal activities and the employer’s
termination of the employee.
Sacks, 2006 WL 686874, at *4 (citing Hill v. Perrigo of Tenn., No. M2000-02452-COA-R3CV, 2001 WL 694479, at *3 (Tenn. Ct. App. June 21, 2001)). “Once a plaintiff has made
out a prima facie case, the burden shifts to the employer to advance a non-discriminatory
reason for the termination.8 The burden then shifts back to the plaintiff to show that his
7
The court notes that Bowman does not state a claim under the TPPA in the second amended
complaint because she fails to allege an element of the claim, that she was discharged solely for
refusing to remain silent about or participate in illegal activity. See Quinn-Glover v. Reg’l Med. Ctr.
at Memphis, No. W2011-00100-COA-R3-CV, 2012 WL 120209, at *7 (Tenn. Ct. App. Jan. 17,
2012). In her complaint, Bowman pleads her TPPA and common law claims together and makes
no allegation that she was terminated solely because of her alleged complaints.
8
In Gossett v. Tractor Supply Co., Inc., 320 S.W.3d 777 (Tenn. 2010), the Tennessee
Supreme Court called into question continued application of the McDonnell Douglas burden-shifting
framework in state retaliation claims. However, in Moling v. O’Reilly Auto., Inc., 763 F. Supp. 2d
956 (W.D. Tenn. 2011), the district court analyzed the relevant issues and concluded that the
standard applied at the summary judgment stage is procedural rather than substantive. The district
court therefore analyzed the plaintiff’s state law retaliation claim using the McDonnell Douglas
framework. The court noted that “Gossett addressed only the analysis to be applied to common law
retaliation claims,” but “assume[d] Gossett governs both types of retaliation, although some courts
(continued...)
25
termination was solely for the reasons which he initially alleged.” Sacks, 2006 WL 686874,
at *4 (internal quotation marks and citations omitted). “Courts have recognized ‘that the
plaintiff has indeed a formidable burden in establishing elements number two and four of the
cause of action.’” Hill, 2001 WL 694479, at *5 (and cases cited therein). The statute defines
“illegal activities” as “activities that are in violation of the criminal or civil code of this state
or the United States or any regulation intended to protect the public health, safety or
welfare.” Wisdom v. Wellmont Health Sys., No. E2010-00716-COA-R9-CV, 2010 WL
5093867, at *3 (Tenn. Ct. App. Dec. 10, 2010); Tenn. Code Ann. § 50-1-304(a)(3).
Crossmark argues in part that Bowman cannot establish a prima facie case
because she cannot establish the fourth element, the exclusive causal relationship. This is
based on proof in the record that Bowman did in fact violate the company’s drive-time
policy. Bowman argues that there is sufficient evidence to show that her termination was
based solely on the complaints, i.e., her refusal to remain silent about the drive-time policy
which she believed violated the law. Therefore, there is evidence from which a jury could
find the exclusive causal relationship necessary for the claim.
The exclusive causal relationship element is difficult to establish, and there is
proof in this record that Bowman was terminated for reasons other than complaining about
Crossmark’s drive-time policy. Nevertheless, for the same reasons already discussed in
8
(...continued)
have held otherwise.” Id. at 974 n.11 (citing Philip v. Wrigley Mfg. Co., LLC, No. 1:09-CV-144,
2010 WL 4318880, at *11 n.5 (E.D.Tenn. Oct. 22, 2010)). This court will apply the burden-shifting
analysis to Bowman’s state law retaliation claims.
26
Bowman’s FLSA retaliatory discharge claim, there is a question of fact as to a causal
relationship between Bowman’s complaints/failure to remain silent and termination. The
same is true for the issue of pretext concerning this claim. For the reasons already discussed,
there is an issue of fact.
Common Law Claim
In order to establish a prima facie case of common law retaliatory discharge,
a plaintiff must demonstrate:
(1) that an employment-at-will relationship
existed; (2) that he was discharged; (3) that the
reason for his discharge was that he attempted to
exercise a statutory or constitutional right, or for
any other reason which violates a clear public
policy evidenced by an unambiguous
constitutional, statutory, or regulatory provision;
and (4) that a substantial factor in the employer’s
decision to discharge him was his exercise of
protected rights or compliance with clear public
policy.
Franklin v. Swift Transp. Co., 210 S.W.3d 521, 528 (Tenn. Ct. App. 2006)(citing Crews v.
Buckman Labs. Int’l, Inc., 78 S.W.3d 852, 862 (Tenn. 2002)); see also McLeay v.
Huddleston, No. M2005-02118-COA-R3-CV, 2006 WL 2855164, at *6 (Tenn. Ct. App. Oct.
6, 2006). The essential difference between the statutory cause of action for retaliatory
discharge and the common law cause of action is that with the common law cause of action
a plaintiff need only show that his activity was a substantial factor in effectuating his
27
discharge rather than showing it was the sole reason for his discharge. Guy v. Mut. of Omaha
Ins. Co., 79 S.W.3d 528, 537 (Tenn. 2002).
If the plaintiff makes the necessary prima facie showing, the burden shifts to
the employer to articulate a legitimate, non-pretextual reason for the discharge. Yates v.
Hertz Corp., 285 F. Supp. 2d 1104, 1117 (M.D. Tenn. 2003) (citations omitted). If the
employer offers a legitimate reason for terminating the plaintiff, the burden then shifts back
to the plaintiff to show that the reason given is pretextual or not worthy of belief. Id. at 1118
(citations omitted). “Essentially, causation does not exist if the employer’s stated basis for
the discharge is valid and non-pretextual.” Id. (citations omitted).
For the reasons previously addressed in Bowman’s TPPA and FLSA retaliation
claims, this claim also has issues of fact regarding the prima facie element of causation and
whether Crossmark’s stated reason for Bowman’s termination is pretextual. Therefore,
summary judgment is not appropriate.
Bean’s Texas Common Law Claims
Bean cannot establish claims based upon the FLSA, since she cannot show a
minimum wage violation under § 206(a) nor can she demonstrate an overtime violation under
§ 207(a). “The remedial purpose of the FLSA simply does not reach employer obligations
beyond the minimum wage and overtime requirements mandated under the Act.” Wright v.
Pulaski Cnty., No. 4:09CV00065 SWW, 2010 WL 3328015, at *7 (E.D. Ark. Aug. 24, 2010).
28
She concedes that she has no right of action under the Texas Payday Law since that statute
provides only an administrative avenue of relief. See Igal v. Brightstar Info. Tech. Group,
Inc., 250 S.W.3d 78 (Tex. 2008). Remaining for consideration are Bean’s three common law
claims asserted under Texas law: actions for debt, quantum meruit, and unjust enrichment.
Action for Debt
Bean alleges a claim for unpaid wages based upon a common law action for
debt. The underpinning of the claim is that she was not paid for her drive time to her first
retail location and from her last retail location. Bean asserts that she performed integral and
indispensable activities before and after her workday, and while paid for these administrative
activities, she was not paid for her drive time at the beginning and end of her workday.
Crossmark argues that there is no common law claim for debt under Texas law and even if
such a claim existed Bean cannot show she is owed any debt for lost wages as commuting
time is not compensable. While the court disagrees with Crossmark that such a cause of
action exists under Texas law, the court does agree that Bean has failed to demonstrate a
specific debt for lost wages.
“Under Texas common law, employees may sue for recovery of debt, and the
Payday Law is ‘neither cumulative of the common-law remedy, nor does it expressly or
impliedly negate or deny the common-law remedy . . . .” Nart v. Open Text Corp., No. A-10CA-870 LY, 2011 WL 3844216, at *4 (W.D. Tex. Aug. 29, 2011) (quoting Bloch v. Dowell
29
Schlumberger Inc., 925 S.W.2d 301, 304 (Tex.App.-Houston 1996) (citing Holmans v.
Transource Polymers, Inc., 914 S.W.2d 189, 192-93 (Tex.App.-Fort Worth 1995)); see also
Hull v. Davis, 211 S.W.3d 461, 464 (Tex.App.-Houston 2006) (“An employee seeking
unpaid wages from an employer may pursue a judicial action against the employer or may
seek an administrative remedy as provided under the Payday Law.”).
Nevertheless, Bean has not demonstrated a basis for lost wages. As noted
above, Bean has conceded that she has no claims under the FLSA as the alleged failure to
pay her drive time did not result in her wages going below the minimum wage and she did
not work overtime because she did not work enough hours as a part-time employee. Her
state law debt claim, however, is based on elements that would assert an FLSA violation, the
necessity of activating the continuous workday rule in order to turn commuting time into
compensable. Bean is attempting to be paid wages under Texas common law by using a
factual overlay based upon the FLSA. As stated, she has no FLSA claim and has not
provided any underlying basis in state law for the alleged unpaid wages, for example, breach
of contract. “A worker seeking wages has two options: file an administrative claim with the
Texas Workforce Commission (TWC) under the Payday Act or sue for a common law breach
of contract claim.” Douglass v. Williams, No. A-11-CV-416 LY, 2012 WL 1884908, at *4
(W.D. Tex. May 23, 2012) (citing Abatement Inc. v. Williams, 324 S.W3d 858, 863-64
(Tex.App.-Houston [14th Dist.] 2010, pet. denied)); see also Bloch, 925 S.W.2d 301
(common law action for debt to collect severance pay permitted in breach of contract action);
30
Nart, 2011 WL 3844216, at *3 (employee can pursue common law claim for unpaid wages
as a breach of contract claim and sue for recovery of debt). Thus, Bean has not properly
asserted or presented any proof to substantiate an actual debt based upon unpaid wages.
In addition, while Bean testified in her deposition that she is entitled to
$10,000, she has not shown specifically how this documents lost wages. She referred to
calendars that allegedly had drive time recorded, but such calendars have not been produced.
In fact, no documentation to support her demand for $10,000 has been offered. Again, there
is no proof of lost wages to support an action for common law debt.
Quantum Meruit
In her quantum meruit claim, Bean alleges that Crossmark knew, based on its
drive time policy, that she was not being compensated for her drive time. Bean also alleges
that the uncompensated drive time was a valuable service to Crossmark, accepted by
Crossmark for its benefit, and with knowledge that Bean expected to be paid for the service.
Crossmark argues that the claim must be dismissed because Bean cannot establish all of the
necessary elements of the claim. The court agrees with Crossmark that the claim fails.
“Quantum meruit is an equitable theory which permits a right to recover ...
based upon a promise implied by law to pay for beneficial services rendered and knowingly
accepted.” CWTM Corp. v. AM Gen. L.L.C., No. H-04-2857, 2006 WL 1804622, at *10
(S.D. Tex. June 28, 2006) (quoting Leasehold Expense Recovery, Inc. v. Mothers Work, Inc.,
31
331 F.3d 452, 462 (5th Cir. 2003) (internal quotation marks omitted); see also LTS Group,
Inc. v. Woodcrest Capital, L.L.C., 222 S.W.3d 918, 920 (Tex.App.-Dallas 2007) (“Quantum
meruit is an equitable theory of recovery which is based on an implied agreement to pay for
benefits received.”). “Founded on unjust enrichment, quantum meruit will be had when non
payment for the services rendered would result in an unjust enrichment to the party benefitted
by the work.” Green Garden Packaging Co., Inc. v. Schoenmann Produce Co., Inc., No.
01–09-00924-CV, 2010 WL 4395448, at *6 (Tex.App.-Houston Nov. 4, 2010) (internal
quotation marks and citations omitted). “To recover under the doctrine of quantum meruit
in Texas, Plaintiff must prove that (1) valuable services were rendered to Defendant; (2)
Defendant accepted, used, and enjoyed the services; (3) under circumstances that reasonably
notified Defendant that Plaintiff, in performing such services, expected to be compensated.”
CWTM Corp., 2006 WL 1804622, at *10 (citations omitted).
In support of her claim Bean relies on Rainbow Group, Ltd. v. Johnson, No.
03-00-00559-CV, 2002 WL 1991141 (Tex.App.-Austin Aug. 30, 2002). This case is clearly
distinguishable from the facts before this court. In Rainbow, hairstylists prevailed on a
quantum meruit claim. The stylists, who worked for a chain of salons, were required to be
at their particular store ready to work during scheduled hours, although they were off the
clock. The court determined that the stylists provided a benefit to the store locations because
they were present at store locations ready promptly to service arriving customers. The stylists
also provided a benefit by attending store and product knowledge meetings where important
32
issues were discussed.
Bean was not required to be at the employer’s premises attending meetings off
the clock. She seeks compensation for her drive time to her first retail location and from her
last retail location, commuting time. Crossmark did not require her to perform during that
time and she admits she was relieved during the time as well. Her circumstance is unlike the
hairstylists in Rainbow.
Bean simply did not provide a valuable service to Crossmark by driving to and
from her first and last retail location, i.e., commuting to work. This is presumptively noncompensable time absent a specific circumstances and showing by statute. Furthermore,
there are no circumstances notifying Crossmark that plaintiff expected to be compensated for
the alleged services, even if valuable services had been rendered. Bean was on notice after
the first month of her employment that the drive-time policy would be enforced and she
would not be compensated for her drive time. Bean stated in her deposition that she
complained that she should be paid. There is no written documentation supporting such
complaints. In any event, Bean had seen and agreed to follow the drive-time policy. These
facts do not give rise to “an implied agreement to pay for benefits received.” LTS Group,
222 S.W.3d at 920. Thus, no basis exists for equitable recovery based upon quantum meruit.
33
Unjust Enrichment
Bean’s unjust enrichment claim is based on the contention that her
uncompensated drive time from home to her first retail location and from her last retail
location to home was a benefit accepted by Crossmark that would be inequitable for
Crossmark to retain without payment. Crossmark contends inter alia that under Texas law
there is no independent cause of action for unjust enrichment and that it did not obtain any
“benefit” for the purposes of this “claim.”
The Texas courts have taken differing views regarding whether unjust
enrichment is an independent claim.
The majority of Texas appellate courts hold that unjust
enrichment is not an independent cause of action. See, e.g.,
Barnett v Coppell N. Tex. Court, Ltd., 123 S.W.3d 804, 816
(Tex.App.-Dallas 2003, pet. denied); Mowbray v. Avery, 76
S.W.3d 663, 679 (Tex.App.-Corpus Christi 2002, pet. stricken
and rev. denied). This view prevails among Texas courts
notwithstanding the fact that the Texas Supreme Court, in HECI
Exploration C. v. Neel, 982 S.W.2d 881 (Tex. 1998), refers to
unjust enrichment as a “cause of action,” a “remedy,” and a
“basis for recovery.” Id. at 891. Most Texas courts have
nevertheless read these statements as reiterations of the wellestablished principle that an equitable suit for restitution may be
raised against a party based on the theory of unjust enrichment.
See Mowbray, 76 S.W.3d at 680 & n. 25.
Lilani v. Noorali, No. H-09-2617, 2011 WL 13667, at *11 (S.D.Tex. Jan. 3, 2011) (footnote
omitted). The district court in Lilani “side[d] with the majority view that unjust enrichment
is merely an element of restitution for the purposes of [the motion before it].” Id. at n.62.
“The unjust enrichment doctrine applies principles of restitution to disputes where there is
34
no actual contract and is based on the equitable principle that one who receives benefits
which would be unjust for him to retain ought to make restitution.” Walker v. Cotter Props.,
Inc., 181 S.W.3d 895, 900 (Tex.App.-Dallas 2006) (court took position that “[u]njust
enrichment is not an independent cause of action”). “Unjust enrichment is typically found
under circumstances which one person has obtained a benefit from another by fraud, duress,
or the taking of an undue advantage.” Burlington N. R.R. Co. v. Sw. Elec. Power Co., 925
S.W.2d 92, 97 (Tex.App.-Texarkana 1996) (citing Heldenfels Bros. v. City of Corpus Christi,
832 S.W.2d 39, 41 (Tex. 1992)).
Like the district court in Lilani, this court will side with the majority view that
under Texas law unjust enrichment is not an independent action but an element of restitution.
Thus, Bean’s separate claim for unjust enrichment cannot stand, and she will have to show
that Crossmark needs to make restitution.
Crossmark has not received a benefit from Bean that requires restitution. Bean
drove to her first retail location at the start of her day and from her last retail location to her
home at the end of her day, time which was addressed in Crossmark’s drive-time policy.
Basically, she commuted to work as millions of employees do each day. In the very broadest
and universal sense, every employer “benefits” from employees who commute back and forth
to work. However, an employer does not pay for that benefit, absent unique circumstances
required by statute. Bean’s drive time did not bestow a specific or unique benefit on
Crossmark that was unjustly retained.
35
Further, this not a situation where a benefit was obtained by fraud, duress or
the taking of undue advantage. Such circumstances have not been pled by Bean, and in any
event, no such circumstances exist in the record. Bean was informed about Crossmark’s
drive-time policy and agreed to follow it. Although Bean states that she recorded all of her
drive time her first month of employment, after that time she was explicitly told by her
supervisor that she would required to follow the drive-time policy in the future. Such
conduct fails to meet the level required to demonstrate unjust enrichment.
Accordingly, all three of Bean’s common law claims fail to survive summary
judgment. Therefore, Crossmark’s motion as to Bean will be granted, and she will be
dismissed.
IV.
Conclusion
For all of the reasons stated herein, Crossmark’s motion for summary judgment
will be granted in part and denied in part. An order consistent with this opinion will be
entered.
ENTER:
s/ Leon Jordan
United States District Judge
36
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