Brennan v. Qwest Commc'n Intern., Inc.

Decision Date20 July 2010
Docket NumberCivil No. 07-2024 ADM/JSM
PartiesLyle BRENNAN, Christopher Richard, and Michael Lundell, on behalf of themselves and other individuals similarly situated, Plaintiffs, v. QWEST COMMUNICATIONS INTERNATIONAL, INC., Qwest Communications Corporation, and Qwest Corporation, Defendants.
CourtU.S. District Court — District of Minnesota
727 F.Supp.2d 751

Lyle BRENNAN, Christopher Richard, and Michael Lundell, on behalf of themselves and other individuals similarly situated, Plaintiffs,
QWEST COMMUNICATIONS INTERNATIONAL, INC., Qwest Communications Corporation, and Qwest Corporation, Defendants.

Civil No. 07-2024 ADM/JSM.

United States District Court,
D. Minnesota.

July 20, 2010.

727 F.Supp.2d 753

James H. Kaster, Esq., Paul J. Lukas, Esq., Sarah M. Fleegel, Esq., David E. Schlesinger, Esq., and Amy S. York, Esq., Nichols Kaster & Anderson, PLLP, and Paul Egtvedt, Esq., Egtvedt Law Firm, PLC, Minneapolis, MN, on behalf of Plaintiffs.

Robert R. Reinhart, Esq., Melissa Raphan, Esq., and Ryan E. Mick, Esq., Dorsey & Whitney LLP, Minneapolis, MN, on behalf of Defendants.


ANN D. MONTGOMERY, District Judge.


On April 29, 2010, the undersigned United States District Judge heard oral argument on Defendants Qwest Communications International, Inc., Qwest Communications Corporation, and Qwest Corporation's (collectively "Qwest") Rule 56(d) Motion [Docket No. 395] and Motion for Summary Judgment [Docket No. 398].1 Plaintiffs Lyle Brennan, Christopher Richard, and Michael Lundell ("Plaintiffs") initiated this collective action asserting claims against Qwest for wage violations under the Fair Labor Standards Act of 1938 ("FLSA"), 29 U.S.C. §§ 201- 219, and the Minnesota Fair Labor Standards Act ("MFLSA"), Minn Stat. §§ 177.21-.35. For the reasons set forth herein, Qwest's Rule 56(d) Motion is denied and Motion for Summary Judgment is granted in part and denied in part.


The Court granted conditional certification of Plaintiffs' claims on March 25, 2008, 2008 WL 819773 [Docket No. 108], and denied Qwest's motion for decertification on June 4, 2009, 2009 WL 1586721 [Docket No. 339]. Because the factual background is set forth in the prior orders, only a summary of the facts relevant to the specific issues raised by the current motions will be repeated here.

727 F.Supp.2d 754

Qwest is a telecommunications company operating a network of internet service, cellular telephone service, long-distance telephone service, and digital television service to business and residential customers. March 25, 2008 Order at 2, June 4, 2009 Order at 2. Plaintiffs are current and former network technicians employed by Qwest throughout Minnesota. Collective & Class Action Compl. ("Compl.") [Docket No. 1] ¶ 3. Plaintiffs' job responsibilities are driving Qwest trucks to customers' premises to install, maintain, repair, and test various aspects of Qwest's telecommunications network. June 4, 2009 Order at 2; Coddington Aff. [Docket No. 403] ¶ 3.

At the forefront of the parties' dispute is the Quality Jobs per Day ("QJD") metric, which is a "performance measurement component" Qwest created in 2003 and 2004 to "develop[ ] stronger technician performance and enhanc[e] relationships between technicians and management, in order to continuously improve productivity, quality and customer service." Peirce 2d Suppl. Aff. [Docket No. 412] ¶¶ 2-4; Berringer Aff. [Docket No. 414] ¶¶ 5, 8. QJD measures "real productivity" by determining a QJD score through the following formula: "(Job Co-ons-30 Day Repeats) / (Payroll Hours / 8 hours)." Peirce 2d Suppl. Aff. ¶¶ 8, 11. Because technicians perform different types of work, QJD scores are measured in four categories or "buckets"-Plain Old Telephone Service or "POTS," Designed Services or "DS," Digital Subscriber Line or "DSL," and Cable-with different expectations applicable to each category. Id. ¶¶ 8, 12. Expectations are "stratified" into five performance levels: "Outstanding," "Satisfactory," "Less than Satisfactory," "Needs Improvement," and "Unacceptable." 3 Id. ¶ 18; Defs.' Mem. in Supp. of Rule 56(d) Mot. [Docket No. 397] at 14. Technicians whose QJD scores fall in the "needs improvement" performance level may be subject to progressive levels of discipline, from "Documented Discussion, to Written Warning, then Warning of Dismissal, and finally becom[ing] subject to Dismissal." June 4, 2009 Order at 4.

Plaintiffs' unpaid overtime claims also implicate Qwest's so-called "out-of-garage rule." Technicians begin their work day at a Qwest garage and drive Qwest trucks to customers' premises to perform their work. June 4, 2009 Order at 2. Before leaving the garage, technicians must (1) review all assigned work and commitment times; (2) make sure the vehicle is clean, stocked with necessary tools and equipment, and otherwise ready for the day; (3) call the first customer and Qwest dispatch; and (4) perform certain pre-tests. Id. at 2-3. Technicians are expected to complete these tasks and leave the garage for the first job within fifteen minutes of the start time. Id. at 3. Also, upon returning to the garage at the end of the day, the technician must complete time entries. Id.

Plaintiffs allege that they have performed off-the-clock work to meet QJD expectations and comply with the out-of-the garage rule. Further, Plaintiffs allege that Qwest knew (or should have known) that its policies and expectations were causing such off-the-clock work and yet has failed to compensate them for that time worked. Qwest denies the allegations and stresses that (1) the QJD expectations were carefully developed to be objectively reasonable; (2) its policies and practices prohibit, rather than cause, off-the-clock work; (3) technicians bear the responsibility of self-reporting their time and doing so honestly and accurately; and (4) every

727 F.Supp.2d 755
minute of overtime that technicians report is compensated.


A. Summary Judgment Standard

Federal Rule of Civil Procedure 56(c) provides that summary judgment shall issue "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). On a motion for summary judgment, the Court views the evidence in the light most favorable to the nonmoving party. Ludwig, 54 F.3d at 470. The nonmoving party may not "rest on mere allegations or denials, but must demonstrate on the record the existence of specific facts which create a genuine issue for trial." Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir.1995).

B. Qwest's Motion for Partial Summary Judgment Regarding QJD

The FLSA requires employers to pay all covered employees at least one and a half times their regular rate of pay for hours worked in excess of forty hours per week. 29 U.S.C. § 207(a)(1). An employer violates the FLSA by failing to compensate employees for overtime work if the employer suffered or permitted such work. See Chao v. Gotham Registry, Inc., 514 F.3d 280, 291 (2d Cir.2008); Falcon v. Starbucks Corp., 580 F.Supp.2d 528, 533 (S.D.Tex.2008) ("An employer must compensate employees for all work it suffers or permits."). " '[T]he words "suffer" and "permit" as used in the statute mean "with the knowledge of the employer." ' " Forrester v. Roth's I.G.A. Foodliner, Inc., 646 F.2d 413, 414 (9th Cir.1981) (quoting Fox v. Summit King Mines, 143 F.2d 926 (9th Cir.1944)) (alteration in original). Knowledge may be actual or constructive, and, thus, an employer is liable for its employees' unpaid overtime work if the employer "knew or should have known that they were working overtime." Hertz v. Woodbury County, Iowa, 566 F.3d 775, 781 (8th Cir.2009); see also Newton v. City of Henderson, 47 F.3d 746, 748 (5th Cir.1995). "[I]t is the duty of the management to exercise its control and see that the work is not performed if it does not want it to be performed," management "cannot sit back and accept the benefits without compensating for them," and "[t]he mere promulgation of a rule against such work is not enough" because "[m]anagement has the power to enforce the rule and must make every effort to do so." 29 C.F.R. § 785.13. By contrast, if an employer has no actual or constructive knowledge of overtime work and the employee fails to notify the employer or deliberately prevents the employer from learning of the overtime work, no violation has occurred. Forrester, 646 F.2d at 414.

By its first motion, Qwest seeks summary judgment that Plaintiffs' attempt to predicate FLSA claims on QJD expectations fails as a matter of law. Specifically, Qwest argues that no triable issues remain concerning whether (1) Plaintiffs performed off-the-clock work in order to comply with QJD standards and (2) Qwest knew or should have known that such off-the-clock work was occurring.

1. Performance Standards and Off-the-clock Work

Qwest insists that, as a matter of law, employers cannot be held liable for unpaid overtime on a theory that performance or productivity standards such as

727 F.Supp.2d 756
QJD caused off-the-clock work. However, Qwest cites no authority, and the Court is aware of none, in support of such a proposition.4 Qwest reasons that employers have an "undisputed right to impose performance expectations, even difficult ones," and an employee's choice to falsify his time records cannot be justified by claiming that the performance expectations forced him to do so. Defs.' Mem. in Supp. of Rule 56(d) Mot. at 21, n. 4. Certainly, if an employer were to impose performance expectations at an unattainably high level such that it could be shown that the employer necessarily knew that employees could not meet the expectations without working off the clock, then the employer would have suffered or permitted such off-the-clock work if it failed to prevent it. See Chao, 514 F.3d 280, 290-91 (2d Cir.2008).


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