Bowman v. Crossmark, Inc.
| Decision Date | 05 July 2012 |
| Docket Number | No. 3:09-CV-16,3:09-CV-16 |
| Parties | KATHI BOWMAN, INDIVIDUALLY AND ON BEHALF OF ALL OTHER PERSONS SIMILARLY SITUATED, Plaintiff, v. CROSSMARK, INC., Defendant. |
| Court | U.S. District Court — Eastern District of Tennessee |
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"),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.
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 anhourly 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:
The job description also notes that representatives may be required to perform other job-related 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, andreporting 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:
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. Hackworthreported 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 toBowman. 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 andimmediately 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.
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...
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