Dalton v. Omnicare, Inc.

• Decision Date: 09 October 2015
• Docket Number: CIVIL ACTION NO. 1:14CV71
• Citation: 138 F.Supp.3d 709
• Parties: Rayma Dalton, Plaintiff, v. Omnicare, Inc., an Ohio Corporation, Act Fast Delivery, Inc., a Texas Corporation, and Act Fast Delivery of West Virginia, a West Virginia Corporation, Defendants.
• Court: U.S. District Court — Northern District of West Virginia

138 F.Supp.3d 709

Rayma Dalton, Plaintiff,

v.Omnicare, Inc., an Ohio Corporation, Act Fast Delivery, Inc., a Texas Corporation, and Act Fast Delivery of West Virginia, a West Virginia Corporation, Defendants.

CIVIL ACTION NO. 1:14CV71

United States District Court, N.D. West Virginia.

Signed October 9, 2015

Mark E. Gaydos, Woodrow E. Turner, McNeer Highland McMunn & Varner LC, Kingwood, WV, Samuel H. Harrold, III, McNeer Highland McMunn & Varner LC, Clarksburg, WV, for Plaintiff.

MEMORANDUM OPINION AND ORDER GRANTING OMNICARE'S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 59], AND GRANTING IN PART AND DENYING IN PART ACT FAST'S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 57]

IRENE M. KEELEY

, UNITED STATES DISTRICT JUDGE

Pending before the Court are the motions for summary judgment filed by the defendants, Omnicare, Inc., Act Fast Delivery, Inc., and Act Fast Delivery of West Virginia. For the reasons that follow, the Court GRANTS Omnicare's motion (Dkt. No. 59) and GRANTS IN PART and DENIES IN PART Act Fast's motion (Dkt. No. 57).

BACKGROUND

This case concerns the employment and termination of the plaintiff, Rayma Dalton ("Dalton"), who worked as a courier for Act Fast Delivery of West Virginia ("AFDWV").¹ The questions presented on summary judgment include:

1) Whether AFDWV and Omnicare, Inc., were Dalton's joint employers;

2) Whether AFDWV improperly classified Dalton as an independent contractor;

3) Whether AFDWV violated the public policy of West Virginia, the Fair Labor Standards Act, and the West Virginia Human Rights Act by retaliating against Dalton;

4) Whether AFDWV violated the West Virginia Wage Payment and Collection Act by failing to pay Dalton wages earned for wait time and by forcing her to loan a company scanner and purchase a company uniform; and,

5) Whether AFDWV intentionally inflicted emotional distress on Dalton by terminating her.

I. Factual Background²

In January, 2007, Dalton began working as an independent contractor for Courier Services, a company that provided delivery services to Omnicare, Inc. ("Omnicare") (Dkt. No. 65–3 at 2). As a courier, Dalton delivered pharmaceuticals from the Omnicare facility in Morgantown, West Virginia, to Omnicare's clients, mostly long-term care facilities. Id. It was Omnicare's practice to provide office space, free of charge, within its Morgantown facility to whichever courier service it had contracted with at that particular time (Dkt. No. 63–4 at 3).

In approximately 2009, Courier Services lost the Omnicare contract to Business as Usual, which also provided courier services (Dkt. No. 65–3 at 3).³ Dalton continued on as a courier and dispatcher for Business as Usual, which kept all of Courier Services' employees. Id. As a courier, Dalton was classified as an independent contractor and paid by the mile. Id. Business as Usual classified Dalton as an employee, however, for her services as a dispatcher, paying her by the week. Id. at 4.

In June, 2012, AFDWV won the Omnicare contract (Dkt. No. 59–2 at 5; Dkt. No. 59–3). Dalton, who continued performing her courier duties as she had for Business as Usual, signed an independent contractor agreement with AFDWV on August 30, 2012 (Dkt. No. 59–2 at 104). She did not continue serving as a dispatcher, however. Id. at 5.

Although Dalton understood that AFDWV was classifying her as an independent contractor, she believed that she was an employee (Dkt. No. 59–2 at 41, 94, 108). Dalton filed her personal income tax return as an independent contractor, taking deductions for business expenses. Id. at 42, 77–78. Additionally, she used her own vehicle, cell phone, e-mail address, and gas to perform her deliveries (Dkt. No. 58 at 7). Dalton was required, however, to purchase and wear a shirt with the AFDWV logo to identify herself when she made deliveries. Id. Furthermore, AFDWV required her either to provide her own scanner or to lease one from AFDWV.⁴ Id. If drivers leased a AFDWV scanner, 3.5% was deduced from their pay (Dkt. No. 59–2 at 43).

In the course of her duties as a courier, Dalton performed "sweeps," deliveries based on a pre-established daily route, and "stats," emergency deliveries of drugs to a nursing home (Dkt. No. 58 at 7). Dalton ran the 10:00 A.M. and 2:00 P.M. sweeps, working approximately 20 hours per week plus any stats (Dkt. No. 59–2 at 17-18). She was paid a set dollar amount for each sweep and stat, plus mileage for each stat over a set amount of miles. Id. at 18, 20. AFDWV also paid drivers for "wait time," time spent waiting for Omnicare employees to prepare the delivery totes; after waiting 46 minutes past the scheduled sweep, drivers were paid $5 every 15 minutes. Id. at 32. The couriers sign up each week for their sweep schedule, and pick up stats as they wish (Dkt. No. 59–4 at 5-7; Dkt. No. 59–6 at 5).

On February 5, 2013, Dalton accepted a role as a lead driver for AFDWV, which employed 20 to 25 drivers at the Morgantown location (Dkt. No. 59–2 at 22, 27). AFDWV paid her $40 per day, seven days per week, to recover the drivers' route sheets, track their stop counts, and turn in payroll information. Id. at 22–23. Additionally, Dalton continued to run sweeps and stats. Id. at 22.

In March, 2013, Dalton was promoted to lead driver/manager and compensated $1,200 every two weeks. Id. at 28. Although AFDWV still classified her as an independent contractor, Dalton received a company laptop. Id. at 29. In her role as manager, Dalton hired new employees, scheduled sweep routes, and sent in stop count reports to Omnicare. Id. at 29–30.

When Omnicare received customer complaints relating to the behavior of an AFDWV courier or the delivery of pharmaceuticals, it was Omnicare's standard practice to conduct a root cause analysis and discuss the problem with AFDWV, which would then handle the complaint (Dkt. No. 57–4 at 6; Dkt. No. 59–2 at 82; Dkt. No. 59–5 at 8). If Omnicare's customer requested that a driver be reassigned to a different route, Omnicare would relay that request to AFDWV (Dkt. No. 57–4 at 6; Dkt. No. 59–5 at 8-9, 11; see also Dkt. No. 57–6 at 4). Omnicare had no authority to actually reassign or terminate AFDWV drivers. Id.

In early March, 2013, Chris Lockard ("Lockard"), General Manager of the Morgantown Omnicare facility, requested a meeting with Dalton to discuss a complaint Omnicare had received from Genesis, a company that owned a significant number of nursing homes in the area (Dkt. No. 59–2 at 57-60, 91). Dalton alleges that, during that meeting, Lockard asked AFDWV to reassign three African-American couriers, Charlie Heard, O'Dell Tucker, and Tim Robertson, after narcotics went missing on the Frostburg route. Id. at 57. Jeff Pugh ("Pugh"), a warehouse supervisor for Omnicare who was present at the meeting, commented that the nursing homes on the eastern panhandle were prejudiced, following which Lockard asked that AFDWV relocate the three African-American drivers to a different route rather than lose business with those nursing homes. Id. ; see also Dkt. No. 59–6 at 9.

That night, Shadd Friday ("Friday"), regional manager for AFDWV, drove to Morgantown to address the Genesis complaint (Dkt. No. 59–2 at 57).⁵ After meeting with Lockard and Pugh, Friday instructed Dalton to take the three African-American drivers off their routes, reassign them to stat deliveries, and not call them, all in an attempt to "phase them out." Id. at 62. Dalton subsequently disobeyed Friday's instruction, reassigning the three drivers to other routes. Id. at 61-62.

One of the reassigned drivers, Charlie Heard ("Heard"), began complaining to Dalton and AFDWV Regional Manager Chris Frummage ("Frummage") that he was only receiving short stat runs. Id. at 63. When Dalton attempted to address Heard's complaints, Frummage "yelled" at her for sticking up for Heard. Id. at 67-68. Dalton attributes her termination, in part, to the fallout from the March, 2013, meeting and her complaints to Frummage (Dkt. No. 63–3 at 17-18).

On August 30, 2013, Dalton resigned as lead driver/manager and returned to running sweeps and stats as a courier, complaining that she wasn't getting any respect, and that AFDWV had been improperly deducting scanner fees from her pay when she wasn't running deliveries (Dkt. No. 59–2 at 47, 110).

In early October, 2013, Pugh informed Dalton that she needed to take a stat delivery to Valley Mental Health ( Dkt. No. 57–7 at 5). Because the delivery needed to occur as soon as possible, Pugh added it to Dalton's sweep route. Dalton, however, had a scheduled dental procedure that afternoon, and asked dispatch to have another courier take the delivery. Id. It is uncontested that another courier delivered the package. Id.

Around October 6, 2013, Pugh left his employment with Omnicare and began working for AFDWV as a lead driver/manager, the position from which Dalton had recently resigned (Dkt. No. 58 at 9). It is undisputed that Pugh did not have the authority to discipline AFDWV drivers when he worked at Omnicare (Dkt. No. 59–7 at 7; Dkt. No. 66–2 at 2; Dkt. No. 66–3 at 5-8). On his first day as an AFDWV manager, however, Pugh convened an employee meeting in the parking lot (Dkt. No. 59–2 at 52). Before the meeting began, in front of 20 or more AFDWV employees, Pugh walked up to Dalton and told her that he was terminating her contract. Id. at 52.

When Dalton asked why she was being fired, Pugh told her that she had failed to deliver a package on her sweep the previous week. Id. Dalton attempted to explain that she had needed an emergency dental procedure after a filling came out of her tooth, and that another AFDWV employee, Don Smith, had delivered the package. Id. at 52-53. Pugh expressed the opinion, however, that Dalton "had plenty of time to get [the package] delivered and get to her doctor's appointment or dentist appointment ...." (Dkt. No. 63–5 at 5). He did acknowledge that another courier had delivered the package on time. Id. When asked about AFDWV's policy regarding termination of drivers who missed deliveries, Pugh...