Hayes v. McIntosh

• Citation: 604 F. Supp. 10
• Decision Date: 11 January 1984
• Docket Number: Civ. No. F 80-236.
• Parties: David M. HAYES, Plaintiff, v. Russell McINTOSH; Joan McIntosh; and McIntosh Energy Company, Defendants.
• Court: U.S. District Court — Northern District of Indiana

604 F. Supp. 10

David M. HAYES, Plaintiff, v. Russell McINTOSH; Joan McIntosh; and McIntosh Energy Company, Defendants.

Civ. No. F 80-236.

United States District Court, N.D. Indiana, Fort Wayne Division.

January 11, 1984.

COPYRIGHT MATERIAL OMITTED

Frank A. Webster, Fort Wayne, Ind., Larry J. Burke, Fort Wayne, Ind., for plaintiff.

Thomas S. Locke, Fort Wayne, Ind., for defendants.

MEMORANDUM AND ORDER

WILLIAM C. LEE, District Judge.

This matter is before the court for a decision on the merits following a bench trial. Plaintiff brought this action alleging wrongful discharge or discrimination under 29 U.S.C. § 215, et seq. This court having considered the entire record and being duly advised, hereby renders and enters the following Findings of Fact and Conclusions of Law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.

Findings of Fact

1. This is a statutory action for wrongful discharge or discrimination under 29 U.S.C. § 215(a)(3). Plaintiff, David M. Hayes, was a full time employee of defendant McIntosh Energy Company.

2. Plaintiff is an experienced and trained semi-truck driver.¹ In late December 1976 plaintiff was offered a position by defendant McIntosh Energy Company. His actual employment with that firm began on or about January 2, 1977.

3. The three defendants consist of one corporation and two individuals. Defendant Russell McIntosh has been the primary owner and/or operator of McIntosh Energy and its predecessor entities,² for the past thirty years. Defendant Joan McIntosh is defendant Russell McIntosh's wife. Her involvement with McIntosh Energy Company up until 1978 consisted of occasional help with the bookkeeping, and since that time Joan McIntosh has had no direct contact with the workings of McIntosh Energy.³ Defendant McIntosh Energy Company is a proprietorship owned by Russell McIntosh and is engaged in the business of selling gasoline, oil, lubricants and related products on both the wholesale and retail level.

4. During all relevant times, the principal place of business of defendant Russell McIntosh and defendant McIntosh Energy Company was located at 3910 Northrop Avenue, Fort Wayne, Indiana. That site was a "tank farm" consisting of several storage tanks for various "Union 76" brand fuels. Out of that facility operated one semi-tractor trailer and two self-contained fuel trucks as well as a van. From that location, the employees could service the accounts of McIntosh Energy Company which consisted of various independent gasoline dealers and at least two convenience markets which were subsidiaries of McIntosh Energy Company.

5. During his employment at McIntosh Energy Company, plaintiff's job consisted primarily of driving a tractor trailer to deliver fuel oil and gas to the various business accounts of defendant McIntosh Energy in the Fort Wayne and Huntington, Indiana area. When plaintiff was not driving the semi-truck, he engaged in other work such as removing gasoline pumps and installing new pumps at different service stations; doing minor mechanical repairs and maintenance work on various vehicles owned by defendant McIntosh Energy Company; and general maintenance work on defendants' premises including lawn mowing and, on at least one occasion, paneling the offices of defendant McIntosh Energy Company.

6. While employed at McIntosh Energy Company, plaintiff's hours were long and flexible—often beginning in the early hours of the morning and continuing until 10:00 or 11:00 p.m. On only one occasion during his tenure with that company did defendant work less than forty hours during a given work week. As compensation, plaintiff was paid on a "per load" basis for the time spent driving the semi-truck and on an hourly basis for all non-truck driving work time.⁴ At first, plaintiff was paid $13.00 for each "long trip" in the semi-truck; $10.00 for each short trip;⁵ and $4.00 per hour for work which did not entail driving the transport. Later, and up until shortly before his departure, plaintiff received $22.00 per load⁶ and $5.00 per hour for non-driving work. Combining the hours spent driving and the hours spent in non-driving work plaintiff was averaging $347.00 per week at the time he left the employ of McIntosh Energy Company.

7. In the early part of May 1980, the Wage and Hour Division of the Department of Labor instituted an investigation into the payment practices of defendant McIntosh Energy Company. The purpose of the investigation, precipitated by the complaint of an undisclosed source, was to determine whether or not McIntosh Energy Company was in compliance with the requirements of the Fair Labor Standards Act. The period encompassed within the scope of the investigation was from April 24, 1978 to April 24, 1980.

8. During the course of the investigation, Mr. Raymond Hoffman of the Wage and Hour Division of the United States Department of Labor interviewed plaintiff in the offices of defendant McIntosh Energy Company. The essence of the interview was reduced to a written statement which the plaintiff signed.

9. Based upon the interview and a review of the time sheets, it was determined that plaintiff was not being properly paid. Specifically, it was determined that defendant McIntosh Energy Company was not paying plaintiff and four other employees time and a half for all hours worked over forty hours per week.

10. As a result of defendants' failure to pay overtime, it was determined by the Wage and Hour personnel that plaintiff was entitled to $2,500.00⁷ in back pay. On June 26, 1980, plaintiff received a check in that amount.

11. While the Wage and Hour investigation was in process plaintiff's wages were reduced from $22.00 per load to $18.00 per load so that the payment of overtime would not result in an increase in plaintiff's gross wages. It was further understood by the parties that plaintiff would receive a bonus each month so that his pay would equal $22.00 per load straight time.

12. Prior to plaintiff's actual receipt of the back pay check, defendant Russell McIntosh suggested on numerous occasions that the check should be returned to him or given to charity.⁸ In fact, in the course of a telephone conversation between plaintiff Hayes and defendant McIntosh, defendant reiterated that notion while Raymond Hoffman of the Wage and Hour Division of the Department of Labor was present in defendant's office. Upon overhearing defendant's suggestion that the money should be given to charity, Mr. Hoffman informed defendant that a back pay offer had to be a bona fide offer. At a later meeting, Mr. Hoffman counseled defendant from taking any retaliatory action against plaintiff Hayes as a result of the back pay award.

13. The record adequately supports and the court finds that defendant did in fact request that the plaintiff return the back pay check. Plaintiff did not, however, return the check.⁹

14. The day after plaintiff received the back pay check, his wages were cut to the minimum of $3.10 per hour. On that date, June 27, 1980, plaintiff received a pay check for the preceding week in an amount of $139.00 reflecting the minimum wage rate. Plaintiff objected because he had worked that week prior to being informed of the wage reduction. Upon his objection a new check was drawn up in the amount he had been receiving ($347.00). On the same date that the controversy surrounding the wage rate was brewing, defendant Russell McIntosh hired another driver.¹⁰

15. The wage reduction ostensibly occurred because of defendant Russell McIntosh's understanding that the minimum wage was all he had to pay his employees under the wage and hour laws. Given the timing of the reduction, the fact that defendant Russell McIntosh expected a "present", and the underlying circumstances, however, the court finds that the reduction resulted from plaintiff's refusal to turn over the back pay check and was done to retaliate for that refusal.

16. On June 28, 1980 defendant called plaintiff at home and offered plaintiff his job back at his regular rate of pay. Plaintiff accepted and further inquired into the possibility of taking his accrued vacation time since defendant had already hired another driver. The parties reached an agreement¹¹ and plaintiff went on vacation for approximately one and one-half weeks.

17. Upon his return from vacation, plaintiff was informed that his wages would be based upon a set rate of $5.00 per hour.¹² That wage would reduce plaintiff's rate of pay substantially. Plaintiff indicated his unwillingness to accept the reduction and was fired.¹³

18. After his termination, plaintiff made repeated efforts to secure employment.¹⁴ On July 28, 1980 plaintiff went to work as a truck driver for Faylor Milk Transport. Plaintiff was employed to transport two loads of milk per day from Fort Wayne to Muncie, Indiana. He was terminated from that employment on August 22, 1980. According to Susan Faylor, wife of the owner of Faylor Milk Transport, and the person in charge of "hiring and firing", several factors entered into the decision to terminate plaintiff's employment. Chief among the reasons given was plaintiff's excessive speed in driving and his mishandling of the tractor trailer. It was further felt, however, that by terminating plaintiff, Mrs. Faylor would not receive any more calls from McIntosh Energy Company regarding that employee.¹⁵ While Mrs. Faylor's testimony on this score cut both ways on the issue considering her testimony as a whole and her demeanor, the court finds that the phone calls from McIntosh were a factor in plaintiff's termination from Faylor's Transport.

19. Shortly after his termination with Faylor Milk Transport, plaintiff returned to McIntosh Energy Company in an effort to secure a letter of recommendation. The avowed purpose of the request was so that plaintiff could seek employment with a west coast trucking firm. While "hints" were made about the possibility of plaintiff returning to McIntosh Energy Company...