Bayles v. American Medical Response of Colorado, Civil Action No. 94-B-2300.

• Decision Date: 04 September 1996
• Docket Number: Civil Action No. 94-B-2300.
• Citation: 937 F. Supp. 1477
• Parties: Brett L. BAYLES, Michael P. Frey, Jeralyn Johansen, Steven J. Nelson, Jeffrey S. Turner, James Reynolds, Steve Dunn, on behalf of themselves and others similarly situated. Plaintiffs, v. AMERICAN MEDICAL RESPONSE OF COLORADO, INC., a Delaware corporation. Defendant.
• Court: U.S. District Court — District of Colorado

937 F. Supp. 1477

Brett L. BAYLES, Michael P. Frey, Jeralyn Johansen, Steven J. Nelson, Jeffrey S. Turner, James Reynolds, Steve Dunn, on behalf of themselves and others similarly situated. Plaintiffs, v. AMERICAN MEDICAL RESPONSE OF COLORADO, INC., a Delaware corporation. Defendant.

Civil Action No. 94-B-2300.

United States District Court, D. Colorado.

September 4, 1996.

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Donna Dell'Olio, Cornish and Dell'Olio, Colorado Springs, CO, for Plaintiffs.

John R. Webb, Holme Roberts & Owen, Denver, CO, for Defendant.

MEMORANDUM OPINION AND ORDER

BABCOCK, District Judge.

Plaintiffs bring this action against the American Medical Response Center (AMR) alleging violations of the Fair Labor and Standards Act (FLSA), 29 U.S.C. § 201 et seq., for failure to pay them for meal time, sleep time, and hours worked in excess of forty per week at a rate of one-and-a-half times regular pay. Reed Ambulance, Inc. (Reed) is the predecessor of AMR. It is undisputed here that Reed's pay practices are imputed to AMR as Reed's successor.

The following motions are at issue:

1) AMR's motion to strike plaintiffs' affidavits in support of summary judgment;

2) Plaintiffs' motion to strike documents filed in support of motion for summary judgment on exclusion of meal times;

3) Plaintiffs' motion for summary judgment;

4) AMR's cross-motion for summary judgment;

5) AMR's motion for summary judgment on the statute of limitations;

6) AMR's motion for summary judgment on plaintiff David Sanko's claims; and

7) Plaintiffs' motion to dismiss defendant's second, third, fifth, seventh, eighth, twelfth, thirteenth, fifteenth, and sixteenth affirmative defenses.

I. Preliminary Motions.

A.

AMR moves to strike plaintiffs' affidavits arguing that plaintiffs wrongfully invoked the attorney-client privilege in their objections to questions regarding "the process through which the affidavits" were made. AMR contends that the questions were probative of the accuracy of plaintiffs affidavits and, therefore, it was denied the opportunity to explore contradictions between language in the affidavits and the affiants' true understanding of the facts. AMR's allegations are based on the "limited number and extremely uniform adjectives used" in describing events while working which, it contends, casts doubt on the affiants' credibility.

Fed.R.Civ.P. 30(d)(1) states: "A party may instruct a deponent not to answer only when necessary to preserve a privilege...." If AMR had a proper objection to plaintiffs' failure to respond it should have moved to compel pursuant to Fed.R.Civ.P. 37(a)(2)(B). AMR did not do so. Instead, AMR seeks to have the affidavits stricken pursuant to Fed. R.Civ.P. 56(g) which states:

Should it appear to the satisfaction of the court at anytime that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused the other party to incur, including reasonable attorney's fees, and any offending party or attorney may be adjudged guilty of contempt.

Having failed to file a motion to compel, I have no basis on which to make a determination on whether these affidavits were in fact filed in "bad faith." Furthermore, Rule 56(g) does not provide the remedy sought by AMR. Accordingly, the motion will be denied.

B.

Plaintiffs move to strike documents attached to AMR's reply to plaintiffs' response in opposition to summary judgment on the issue of meal time compensation because the court did not grant AMR leave to file these additional documents. Plaintiffs contend that AMR has denied them the opportunity to challenge the affidavits under Fed. R.Civ.P. 56(e). However, the motion to strike adequately sets forth plaintiffs' objections to these documents and, thus, I will treat it as a surreply. Accordingly, the plaintiffs' motion to strike will be denied.

II.

The following undisputed facts are relevant to the determination of the motions for summary judgment. AMR's predecessor, Reed, operated an ambulance service until it merged with Ambulance Service Company in September of 1993. In October 1993, Ambulance Service Company changed its name to American Medical Response of Colorado, Inc. Before August 1, 1993, Reed scheduled its ambulance crews to work approximately ten, twenty-four hour shifts per month. Before August 1, 1992, Reed deducted three hours per shift for meals. After August 1, 1992, it deducted two hours per shift. If an employee was unable to enjoy a meal break during the designated meal period, he could submit an extra time slip requesting compensation. Management would then review the call out records to determine whether the employee had sufficient time between calls to enjoy a meal.

Reed also deducted eight hours from each twenty-four hour shift for sleep time. If ambulance crews were called to duty during this time, they were paid for time worked rounded to the nearest half hour as long as time worked exceeded fifteen minutes. When calls to duty amounted to more than 3½ hours, employees were paid for all eight hours. Thus, on average plaintiffs were paid for either thirteen or fourteen hours of work per twenty-four hour shift. Plaintiffs contend that Reed's failure to pay overtime compensation and deduction of meal and sleep time from hours worked violated the Fair Labor Standards Act.

III.

The very purpose of a summary judgment motion is to assess whether trial is necessary. White v. York Int'l Corp., 45 F.3d 357, 360 (10th Cir.1995). Fed.R.Civ.P. 56 provides that summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions, or affidavits show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The non-moving party has the burden of showing that there are issues of material fact to be determined. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A party seeking summary judgment bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, interrogatories, and admissions on file together with affidavits, if any, which it believes demonstrate the absence of genuine issues for trial. Celotex, 477 U.S. at 323, 106 S.Ct. at 2552; Mares v. ConAgra Poultry Co., Inc., 971 F.2d 492, 494 (10th Cir.1992). Once a properly supported summary judgment motion is made, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried. Otteson v. U.S., 622 F.2d 516, 519 (10th Cir.1980); Fed.R.Civ.P. 56(e). These specific facts may be shown "by any of the kinds of evidentiary materials listed in Rule 56(c), except the pleadings themselves." Celotex, 477 U.S. at 324, 106 S.Ct. at 2553.

If a reasonable juror could not return a verdict for the non-moving party, summary judgment is proper and there is no need for a trial. Celotex, 477 U.S. at 323, 106 S.Ct. at 2552. The operative inquiry is whether, based on all documents submitted, reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). However, summary judgment should not enter if, viewing the evidence in a light most favorable to the nonmoving party and drawing all reasonable inferences in that party's favor, a reasonable jury could return a verdict for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. at 252, 106 S.Ct. at 2512; Mares, 971 F.2d at 494. Unsupported allegations without "any significant probative evidence tending to support the complaint" are insufficient, see White at 360 (internal quote and citation omitted), as are conclusory assertions that factual disputes exist. Anderson, 477 U.S. at 247-48, 106 S.Ct. at 2509-10.

IV.

A. Section 213(b) Exemption under the Motor Carrier Act.

The purpose of the FLSA is to ensure minimum wages and working conditions to workers in industries throughout the states. Generally, § 207(a)(1) of the FLSA requires than an employee who works more than forty hours in a workweek must be paid compensation at a rate of one and one-half times his regular pay for hours in excess of forty. 29 U.S.C. § 207(a)(1). Section 213 of the FLSA exempts certain job classes from this overtime pay requirement.

Reed argues that it is entitled to exemption under § 213(b)(1) which provides: "The provisions of section 207 providing for overtime pay of this title shall not apply with respect to — (1) any employee with respect to whom the Secretary of Transportation has power to establish qualifications and maximum hours of service pursuant to the provisions of section 304 of Title 49." 29 U.S.C. § 213(b)(1). "The power of the Secretary of Transportation to establish maximum hours and qualifications of service of employees, on which exemption depends, extends to those classes of employees and those only who (1) are employed by carriers whose transportation of passengers or property by motor vehicle is subject to his jurisdiction under section 204 of the Motor Carrier Act, ... and (2) engaged in activities of a character directly affecting the safety of operation of motor vehicles in the transportation on the public highways of passenger of property in interstate or foreign commerce within the meaning of the Motor Carrier Act." 29 C.F.R. § 782.2(a).

The employer bears the burden of establishing exemption from the FLSA. Corning Glass Works v. Brennan, 417 U.S. 188, 197, 94 S.Ct. 2223, 2229, 41 L.Ed.2d 1 (1974). "These exemptions are to be narrowly construed against the employers seeking to...