Abdelkhaleq v. Precision Door of Akron

• Decision Date: 28 August 2009
• Docket Number: Case No. 5:07 CV 3585.
• Citation: 653 F.Supp.2d 773
• Parties: Carolyn ABDELKHALEQ, Plaintiff, v. PRECISION DOOR OF AKRON, Defendant.
• Court: U.S. District Court — Northern District of Ohio

653 F.Supp.2d 773

Carolyn ABDELKHALEQ, Plaintiff, v. PRECISION DOOR OF AKRON, Defendant.

Case No. 5:07 CV 3585.

United States District Court, N.D. Ohio, Eastern Division.

August 28, 2009.

COPYRIGHT MATERIAL OMITTED

John A. Tucker, Law Office of John A. Tucker, Akron, OH, Robert B. Kapitan, Smith & Condeni, Cleveland, OH, for Plaintiff.

Stephen C. Lawson, Ravenna, OH, for Defendant.

MEMORANDUM AND ORDER

McHARGH, United States Magistrate Judge.

I. FACTS AND BACKGROUND

Plaintiff brings this action pursuant to the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq. Plaintiff is a former employee of Defendant. Defendant Precision Door of Akron is a franchise operation that is in the business of installing and repairing automatic garage doors. (Doc. 33, at 2; Defendant's Exhibit 4 [hereinafter, "Lybrook Dep."], at 5).

Plaintiff began employment as a customer service representative for Defendant on or about March 9, 2005. (Doc. 28, at 3; Plaintiff's Exhibit A [hereinafter, "Abdelkhaleq Dep."], at 10-11). Plaintiff's duties included handling incoming calls from customers. (Doc. 28, at 3; Abdelkhaleq Dep., at 10). George Lybrook is the owner of the franchise where Plaintiff worked, and Margo Smith was the office manager and Plaintiff's immediate supervisor. (Defendant's Exhibit 2 [hereinafter, "Lybrook Aff."], at ¶ 1; Defendant's Exhibit 3 [hereinafter, "Smith Aff."], at ¶¶ 1-2).

Vickey Todd also worked in the office with Plaintiff. (Doc. 28, at 3-4; Abdelkhaleq Dep., at 10-11). At the beginning of her employment, Plaintiff earned ten dollars per hour. (Abdelkhaleq Dep., at 10). After approximately one month, Plaintiff received a fifty-cent per hour wage increase. (Abdelkhaleq Dep., at 10-11). Plaintiff worked a forty-hour week in the office. (Abdelkhaleq Dep., at 12).

Throughout Plaintiff's employment, Defendant used a roll-over call system to deal with customer inquiries after regular business hours and on weekends. (Doc. 33, at 2; Abdelkhaleq Dep., at 23-24). The following represents Plaintiff's description of how the roll-over call system operated during her tenure. At the close of the work day, an office employee would call a number from Defendant's office, which would transfer all incoming calls to a paging system. (Abdelkhaleq Dep., at 24). When a customer called thereafter, the call would be forwarded to the paging company, and the paging company would transmit information from the call to a pager belonging to Defendant. See Abdelkhaleq Dep., at 25. Information from the incoming call included the customer's name, telephone number, and in some cases, the customer's address and/or a short description of the customer's issue. (Doc. 28, at 4; Abdelkhaleq Dep., at 25). After receiving the page, the employee monitoring the pager would be required to return the customer's call, usually within five to ten minutes. (Abdelkhaleq Dep., at 26).

Often the customer's issue would require the employee to contact a technician to schedule an emergency repair for that night or the following day. (Abdelkhaleq Dep., at 15-18, 26-27). Information about the technicians and their schedules was available on company computer software. (Abdelkhaleq Dep., at 33-35; Plaintiff's Exhibit B [hereinafter, "Vickey Todd Aff."], at ¶ 8). Once the employee had successfully contacted a technician and arranged a time with him to meet the customer, the employee would call the customer again to notify the customer of the appointment time. (Abdelkhaleq Dep., at 17; Vickey Todd Aff., at ¶ 7). The employee then would enter notes into the computer program to allow future users to access information about the service call. (Abdelkhaleq Dep., at 46; Vickey Todd Aff., at ¶ 7). Defendant mandated that one of its employees monitor the pager at all times after hours. (Abdelkhaleq Dep., at 52).

At some point during her employment, Plaintiff began to monitor the cell phone and pager after hours and on weekends. (Doc. 28, at 4; Abdelkhaleq Dep., at 14). Defendant asserts that Plaintiff did not begin monitoring the pager until August 2005, approximately four to five months after the commencement of her employment with Defendant. (Doc. 33, at 2; Lybrook Aff., at ¶ 5). The parties dispute who approached whom about taking the pager. Plaintiff claims that Mr. Lybrook and Ms. Smith called Plaintiff into the main warehouse to ask if she "would be interested in working with the pager." (Doc. 28, at 4; Abdelkhaleq Dep., at 14). Defendant claims that Plaintiff came to Defendant "wanting to make some extra money and asked if she could have the pager." (Doc. 33, at 2; Lybrook Dep., at 16-17).

Plaintiff claims that Vickey Todd previously had been responsible for monitoring the pager, but she had "quit using the pager and refused to use it again after that." (Abdelkhaleq Dep., at 15). Plaintiff testified that she expressed an interest in the pager when approached about it but made clear at that time that she only wanted to monitor the pager a few nights per week so that she could spend time with her ailing father. (Doc. 28, at 4; Abdelkhaleq Dep., at 15). It is undisputed that Plaintiff was paid ten dollars per night for each weekday night and twenty-five dollars for each weekend day that she monitored the pager. (Doc. 28, at 9; Abdelkhaleq Dep., at 49, 60, 71; doc. 33, at 2-3; Smith Aff., at ¶ 5).

Plaintiff contends that despite her desire only to monitor the pager a few times per week, she soon began having to take the pager on a near-daily basis. (Abdelkhaleq Dep., at 28-29). Plaintiff asserts that although she occasionally was able to give the pager to someone else, she often was told that she had to take it because no one else was available or willing. (Abdelkhaleq Dep., at 54). She felt that monitoring the pager had become a requirement of her job and that she could have been terminated for permanently refusing to take the pager, although no one explicitly so told her. (Abdelkhaleq Dep., at 21-22, 29-30). Defendant claims that monitoring the pager was completely voluntary and that Plaintiff was free to forego monitoring the pager at any time. (Lybrook Aff., at ¶¶ 7, 12). Three current employees of Defendant who have monitored the pager swore in affidavits that monitoring the pager is completely voluntary. (Defendant's Exhibits 5, 6 and 7 [hereinafter, "Wright Aff.," "Summerville Aff.," and "Reynolds Aff.,"], at ¶¶ 2, 5-6). Defendant also notes that during the period in which Plaintiff monitored the pager "there were days during the week in which someone else monitored, and there were eleven full weeks within these months where Plaintiff did not monitor the pager at all." (Doc. 33, at 3; Defendant's Exhibit 1 [hereinafter "Pager Table"]; Lybrook Aff., at ¶¶ 9-10; Smith Aff., at ¶¶ 7, 9-10).

According to Plaintiff, the process for dealing with after-hours customer pages many times involved a great deal of communication back and forth with the customer and technician, and that each service call, from start to finish, could take as little as thirty minutes or as much as two hours to complete. (Vickey Todd Aff., at ¶¶ 4, 7; Abdelkhaleq Dep., at 28, 58). Defendant claims that this process normally took fewer than three minutes per service call. (Doc. 33, at 3). Defendant bases this assertion on an "examplar" of a service call played during Plaintiff's deposition. See id.; Abdelkhaleq Dep., at 42-45.

Plaintiff also claims that monitoring the pager severely restricted her ability to engage in personal pursuits. Plaintiff cites a couple of examples in support of this assertion. In one example, Plaintiff claims that she had to spend over two hours dealing with a particular call because she had difficulty reaching the on-duty technician and, upon reaching him, discovered that he was "under the influence." (Abdelkhaleq Dep., at 28). In another example, Plaintiff claims that she was forced to leave the park one afternoon with her daughter because the office had closed and she needed to return home before the calls started. (Abdelkhaleq Dep., at 50-51). Plaintiff claims that she could not deal with the calls efficiently unless she was at home because the technicians' schedules were available only through the company software, accessible on her home computer. (Abdelkhaleq Dep., at 33-36). However, Plaintiff also testified that if she were away from home upon receiving a page, she could call Ms. Smith, who also had access to the company software on her home computer and, if she were at home, could help Plaintiff find a technician. (Abdelkhaleq Dep., at 34-35). Plaintiff also noted that the pager was not restricted to any particular geographical range and that it would work reliably anywhere she went. (Abdelkhaleq Dep., at 32).

Defendant disputes that the pager forced employees such as Plaintiff to remain at their homes during on-call hours. According to Defendant, Plaintiff admits in her deposition that she was able to, among other things, participate in family functions, shop and visit while monitoring the pager, and to service calls from her car. (Doc. 33, at 5 (citing Abdelkhaleq Dep., at 32-33 50, 52, 54)). Three of Defendant's current employees who have monitored the pager swore in affidavits that they are not restricted to their homes while monitoring the pager and that they are able to engage in a variety of activities while doing so. See Wright Aff., at ¶¶ 4, 7-8; Summerville Aff., at ¶¶ 4, 7-8; Reynolds Aff., at ¶¶ 4, 7-8. One of these employees, Kimberly Wright, states that she is able to monitor the pager while working at a second job. (Wright Aff., at ¶ 7). Another employee, Nicole Summerville, states that she monitors the pager while tending to her infant child, and that the pager has never prevented her from fully caring for her child. (Summerville Aff., at ¶ 7). Another employee, Jennessa Reynolds, states that she is able to take the pager with her to class after work hours. (Reynolds Aff., at ¶ 7).

Defendant terminated Plaintiff in March of 2006. (...