Babineau v. Federal Exp. Corp., No. 08-16227.

Decision Date27 July 2009
Docket NumberNo. 08-16227.
PartiesPaul BABINEAU, Kenny Bosely, et al., Plaintiffs-Appellants, v. FEDERAL EXPRESS CORPORATION, Defendant-Appellee.
CourtU.S. Court of Appeals — Eleventh Circuit

Gwen Freeman, Knapp, Petersen & Clarke, Glendale, CA, for Plaintiffs-Appellants.

Sandra C. Isom, Richard S. McDonnell, Jr., Jeana M. Littrell, Federal Express Corp., Memphis, TN, for Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before MARCUS and PRYOR, Circuit Judges, and EDENFIELD,* District Judge.

EDENFIELD, District Judge:

Plaintiffs, who are hourly employees of defendant Federal Express Corporation, Inc. ("FedEx"), appeal the district court's denial of class certification. They assert claims of breach of contract and unjust enrichment resulting from FedEx's failure to pay employees for "all hours worked." The district court concluded that certification was improper primarily because individualized factual inquiries into whether and how long each employee worked without compensation would swamp any issues that were common to the class. The sole question before this Court is whether the district court abused its discretion in declining to certify the class. We hold that the district court acted within the bounds of its discretion and affirm its decision.

I. BACKGROUND

In what might be characterized as "Round Two" of their litigation against FedEx for its compensation practices, Plaintiffs allege that FedEx has engaged in a pervasive and long-standing policy of failing to pay hourly employees for all time worked. Previously, the district court denied certification of a nationwide class of FedEx employees asserting substantially similar claims in Clausnitzer v. Federal Express Corp., 248 F.R.D. 647 (S.D.Fla. 2008). Plaintiffs subsequently brought this suit which attempts to address the defects identified in Clausnitzer by limiting the scope of the class to Florida employees, adding a claim for quantum meruit, and altering the theory of their breach of contract claim.

Plaintiffs seek to certify a class defined as "All employees of [FedEx] paid on an hourly basis as nonexempt employees, who were employed in the state of Florida, from the maximum time period preceding the filing of this complaint, as permitted by the statute of limitation, until such time as the Class period closes." The class includes couriers, courier/handlers, service agents, and any other non-exempt employees who are, or were, required during the class period to punch in and out on a manual time clock, but were paid only from their scheduled start time to their scheduled end time. The class also includes employees who worked during unpaid breaks.

Plaintiffs claim that FedEx breached their contracts by failing to pay for three categories of time worked: (1) the interval between an employee's manual punch in time and his scheduled start time; (2) the interval between an employee's scheduled end time and his manual punch out time; and (3) the time worked during unpaid breaks. They also assert a claim for quantum meruit.1

A. The Contract

Plaintiffs claim that their employment relationship with FedEx is governed by an express contract which requires FedEx to pay for "all time worked." This contract and its terms are allegedly embodied in several documents including a standard written agreement (the "Agreement") that every FedEx employee signs during the employment application process as well as certain FedEx employment manuals. The Agreement contains a statement that "all terms of my employment except to the extent covered specifically by this contract or any other valid contract between Company and me ... shall be determined and governed by Company's Policies and Procedures Manual as same may be amended from time to time hereafter...."

FedEx publishes or otherwise provides employees with a "People Manual" and an "Employee Handbook."2 Both manuals state, "It is the policy of FedEx [] to compensate for all time worked in accordance with applicable state and federal law." In the People Manual, the next sentence states, "Except for certain approved preliminary and post-liminary activities, no employee should perform work `off the clock' for any reason, whether on their own initiative or at the request of management." Each manual contains an express disclaimer that it is not a contract and its provisions should not be read or implied to provide for one.3 Furthermore, upon receipt of the Employee Handbook, each employee signed an acknowledgment that the Handbook does not create a contract.4

Plaintiffs conceded at oral argument that under Florida law the manuals do not themselves create a contract. Rather, they argue that the Agreement signed during the application process creates the contract and that the Agreement expressly incorporates the manuals' terms. FedEx disputes the existence of any express employment contract. However, even if the Agreement constitutes an at-will employment contract, FedEx contends that under Florida law the terms in its policy manuals do not create any contractual rights.

B. Timekeeping

An understanding of Plaintiffs' claims requires an understanding of FedEx's time-keeping procedures. FedEx employs three methods of tracking time. First, employees track their time by entering various codes corresponding to different work activities into a hand-held computerized tracking device (a "tracker"). Employees manually enter into the trackers their scheduled start times and end times as well as the times at which they start and finish a break. The tracker data is transmitted to FedEx's payroll database and is used to calculate employee compensation. Additionally, as a backup for the tracker data, employees manually write on a time card the time codes for each task, as well as the start and end time for that task.

FedEx also requires employees to punch in and out on a manual punch clock before and after their shifts. Until 2007 the trackers did not automatically time stamp the employees' entries, so an employee who was supposed to commence work at 8:00 a.m. but arrived for work at 8:05 a.m. could hide his tardiness by entering an 8:00 a.m. start time into the tracker. Thus, FedEx claims that the manual punch records were simply used to verify the integrity of time entries that employees entered into the trackers. FedEx paid its employees only for the time between the scheduled start and end times as entered into the trackers, which did not necessarily coincide with employees' manual punch in and punch out times. The periods of time between the start/end times entered into the tracker and the punch in/out times are referred to as "gap periods." Thus, if an employee punched in at 7:45 a.m. but entered a start time of 8:00 a.m. into the tracker, there would be a fifteen minute gap period for which the employee would not be paid. Additionally, FedEx required employees to take an unpaid break (the "break period") during the day, but Plaintiffs claim that employees frequently worked during their breaks. Plaintiffs seek compensation for work that they performed during gap periods and break periods.

C. Gap Periods

Plaintiffs allege that FedEx structures employees' workloads such that it is usually impossible for its hourly employees to perform all necessary pre- and post-liminary tasks during their scheduled shifts. Thus, they argue, FedEx requires employees to perform certain work activities during the gap periods. These activities vary according to the job function of the particular employee but include retrieving the tracker and keys to the truck, gathering equipment and supplies, finishing paperwork, and completing closing procedures. For example, plaintiff Kenny Bosley stated that he spent "time gathering [his] equipment and preparing to work [his] route" during the pre-shift gap periods. During post-shift gap periods, he stated that he performed unpaid duties including logging off from the tracker system, punching out on the time clock, and other unspecified end of day duties. Plaintiff Larry Horton stated that the work he performed during gap periods "included getting equipment, truck keys, going to [the] truck, participating in a meeting if a meeting was scheduled, and other kinds of pre-trip activities ...." Furthermore, Plaintiffs allege that from the moment they punched in to the moment they punched out, hourly employees were under the control of FedEx, and, if asked to perform a task, they had to do so.

FedEx has submitted evidence that employees punched in at different times and for different reasons. For example, one employee stated that she arrived early to avoid traffic or because she had to drop her child off at school. Another employee arrived early simply because he "didn't like to rush." After manually punching in, some employees drank coffee, chatted with their co-workers, talked on their phones, or simply relaxed. FedEx claims, and certain Plaintiffs have confirmed, that there was no policy requiring employees to manually punch in until their scheduled start time. As for the post-shift gap period, FedEx claims that employees who remained punched in after their scheduled stop time did so for a variety of reasons. For example, one employee stated that during the post-shift gap period he "may [have] stop[ped] to talk to coworkers" but did not "expect to be paid for this time because [he was] not working."

FedEx claims that published policies and procedures established that employees would be paid based on scheduled start and end times, not manual punch times. It has submitted evidence that employees, including plaintiff Bosley, understood that they would be paid based on the times entered into the trackers. Bosley also stated that he was never directed by FedEx managers to work off-the-clock nor did he know of any FedEx managers who were aware that he had worked off-the-clock. FedEx alleges that if it ever required employees to work...

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