Jackson v. Art of Life, Inc.

• Decision Date: 12 December 2011
• Docket Number: Civil Action No. 10–3043.
• Parties: Keith JACKSON, Sr., et al. v. ART OF LIFE, INC., et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

836 F.Supp.2d 226

Keith JACKSON, Sr., et al.

v.ART OF LIFE, INC., et al.

Civil Action No. 10–3043.

United States District Court, E.D. Pennsylvania.

Dec. 12, 2011.

Adam C. Lease, Ari Risson Karpf, Paul C. Lantis, Karpf & Karpf, Bensalem, PA, for Plaintiff.

Paul H. Schultz, Leonard & Sciollo, LLP, Philadelphia, PA, for Defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

JACOB P. HART, United States Magistrate Judge.

In this action, plaintiffs Keith Jackson, Sr., Kevin Joe, David Whaley, Gregory Reaves, Jr., and Aja Garlick (now Mrs. Reaves) allege overtime violations under the Fair Labor Standards Act (“FLSA”) (29 U.S.C. § 201, et seq.) against defendants Art of Life, Inc., Advanced Life Support Ambulance, Inc., and Nick Broytman. A bench trial was held before the undersigned on November 1, 2011.

As explained in the forthcoming findings of fact and conclusions of law, which are set out in a narrative form, I find in favor of plaintiffs and against all defendants in the total amount of $105,078.62.

I. The Trial EvidenceA. Plaintiffs' Testimony

Art of Life, Inc. (“Art of Life”) is a Pennsylvania corporation engaged in the business of medical transportation, including both para-transit in vans, and emergency transportation in ambulances. Trial Transcript (“Transcript”) at 151–152, Defendant Nick Broytman owns 50% of the stock of Art of Life, and his father owns the other 50%. Id. at 151. His father, however, does not manage the company. Id. at 157. Daily business operations are conducted by Nick Broytman, and, secondarily, by his general manager, Igor Makhnovetskiy. Id. at 157–158.

All five plaintiffs were para-transit van drivers for Art of Life. (Garlick remains employed by Art of Life, but is on disability; the other plaintiffs are no longer employed by Art of Life). Pretrial Stipulation at ¶¶ 1–2. Their duties were to transport elderly or infirm individuals in the Philadelphia area to medical appointments, day programs, or other destinations, and then to pick the individuals up and return them to their residences. Id. at ¶ 3; Transcript at 9 (Jackson's testimony); 64 (Whaley's testimony); 124 (Garlick's testimony).

The plaintiffs typically worked over 40 hours per week. Each plaintiff usually had a first pickup around 5 or 6 a.m., and a last pickup around 3 p.m. Transcript at 13–15 (Jackson); 64–68 (Whaley); 102–104(Joe) and 125–126 (Garlick).¹ However, they had to arrive at the Art of Life workplace well in advance of the first pickup, in order to obtain the van and drive to the first pickup site. Id. at 148–9 (Testimony of Igor Makhnovetskiy).

Further, the plaintiffs did not clock out at Art of Life until several hours after their last pickup, since they had to return the passengers to their residences, which could be far apart. Id. at 150 (Makhnovetskiy's testimony). For example, Jackson testified that he was assigned to pick up between ten and twelve individuals from a mental health program at 3:00 p.m., and take each one home “to various locations around the city, West Philly, South Philly, North Philly, Kensington, Northeast.” Transcript at 9–10. After this, a plaintiff would drive back to Art of Life, and clean the inside and outside of the van before leaving for the day. Id.

Plaintiffs testified that they were unable to take breaks during the day because they were continuously picking up and dropping off clients at various locations in the area. Transcript at 10 (Jackson's testimony). Thus, plaintiffs generally worked 12–14 hours per day, for a five or six-day week, which added up to 60 or 70 hours per week. Transcript at 15 (Jackson); 68–69 (Whaley); and 104–107(Joe).

Each plaintiff testified at trial that he or she was paid hourly, at a rate between $10 and $11.50. Transcript at 1648 (Jackson); 71, 90 (Whaley); 108(Joe); 129–130 (Garlick). Jackson, Whaley and Joe all testified that Makhnovetskiy told them upon hiring that they would be paid hourly, and what their hourly rate would be. Transcript at 16 (Jackson); 71 (Whaley); 108(Joe), Garlick testified that she was told her hourly wage by a scheduler/dispatcher named Ala. Transcript at 129. Jackson testified that he was told by Makhnovetskiy that he could work all the hours he liked, but that the company did not pay overtime. Transcript at 44. Garlick and Joe also denied that they were paid overtime. Transcript at 109(Joe); 130 (Garlick). Whaley did not testify to this directly, but affirmed that he was claiming entitlement to unpaid overtime. Transcript at 75.

Each plaintiff specifically denied that he or she was ever paid a salary or given the option of receiving a salary. Transcript at 16 (Jackson); 72 (Whaley); 109–110(Joe); 130 (Garlick). Jackson, Whaley and Joe, however, testified that in February 2010 they were told they could either switch to a flat weekly rate or have their hours cut to 30 or fewer per week. Transcript at 18 (Jackson); 71–72 (Whaley); 108–109(Joe). Garlick had ceased working in January, 2008. Transcript at 124.

B. Plaintiffs' Exhibits

Plaintiffs have provided as trial exhibits spreadsheets for each plaintiff, setting forth six categories of information: the number of hours worked in each two-week pay period; the amount of money paid for this period; the hourly rate during that pay period; the overtime rate for the period; the number of hours over 40 worked during the period, representing overtime; and, finally, the amount of unpaid overtime wages for that period, Plaintiffs' Exhibits 34–38. The exhibits show that Keith Jackson is owed $8,188.89; Kevin Joe is owed $20,631,34; David Whaley is owed $ 19,11.4.21; Gregory Reaves is owed $3,137.98; and Aja Garlick is owed $1,466,89. Plaintiffs' Exhibits 34–38, respectively.

As discussed below, Defendants deny that Plaintiffs were paid hourly. However, Defendants have not criticized the methodology employed in the creation of the spreadsheets. For that reason, it is sufficient to explain briefly that Plaintiffs' Exhibits 34–38 are compilations of information drawn from Plaintiffs' earnings statements, and from the time cards provided by Art of Life, when possible. Transcript at 19; Joint Exhibits 3–12.

In many instances, no time card was provided. When this was the case, Plaintiffs estimated the hours worked by using records from LogistiCare. ² Transcript at 20–21; Joint Exhibit 16, LogistiCare records do not show the time expended before the first pickup, or after the last pickup. For that reason, Plaintiffs added three hours to those shown by LogistiCare for a particular day: one hour to account for time spent in the morning, picking up the van and driving to the first pickup location, and two hours after the last pickup, to account for time spent returning passengers to their homes, and returning and cleaning the van at the end of the day. Transcript at 23, 26.

Plaintiff's also focused at trial on examples pulled from their time cards, showing that each plaintiff's pay, when divided by the number of hours worked, actually equaled the hourly rate of pay to which the plaintiff had testified. Transcript at 49–59 (Jackson); 92–97 (Whaley), Exhibits 3–7. For instance, Whaley was paid $1,240 for the period of August 26 to September 2, 2007. Id. at 93. He worked 124 hours in that time period. Id. at 92. Thus, he was paid $10 per hour, as he had testified. For the period of October 21–28, 2007, he worked 125 hours. Id. at 95. He was paid $1,250. Id. at 96. Whaley testified that he was at some point given a pay raise to $11 per hour. Id. at 71, 96. For the pay period between January 27 and February 3, 2008, he was paid $1,386 for a 126–hour week, at a rate of $11 per hour Id. and 96. Similarly, for the period of February 10–17, 2008, Whaley was paid $1,391.50 for a 126, 35–hour week, also at a rate of $11 per hour. 96–97.

When counsel examined Joe on redirect, he began to show similar examples. However, the Court stopped him; “I know what you're going to do because you've done it with the last two witnesses ... Once you've done it once, I understand it.” Transcript at 122. Nevertheless, the Plaintiffs have attached as Exhibit A to their Proposed Findings of Fact and Conclusions of Law similar examples for Joe, Garlick and Reaves. This information may be considered by the Court because it is not new evidence. Rather, it is a series of calculations drawn from admitted exhibits, i.e., the time cards and earning statements.

Also admitted into evidence was a letter from Art of Life written to Garlick during her disability, inviting her to resume her employment “without loss of wages ($11.00/hour working a 36 hour minimum week per our records).” Plaintiffs' Exhibit 41.

C. The Defense1. Broytman's Testimony

Nick Broytman was the sole witness for the defense. He agreed at trial that he is personally responsible for administering the payroll at Art of Life. Transcript at 194. In other litigation, Broytman has testified as the corporate designee having the most information about payroll practices at Art of Life. Id. at 195.

Broytman testified that no plaintiff was ever paid hourly except for Garlick, who opted after a few pay periods to convert to salary. Transcript at 175–176. Broytman stated that each plaintiff was told upon employment that he or she had the option of either working for an hourly wage or for salary. Id. at 186. However, in order to keep overtime hours down, hourly workers would ordinarily be limited to between 37 and 40 hours per week. Id. at 190.

Broytman testified that salaried workers also got overtime, calculated in a method prescribed by the United States Department of Labor, but that this resulted in a lower overtime rate than that which hourly employees would receive. Id. at 177. Therefore, the company saved money. Id.

As discussed more fully below, exhibits submitted by the Defendants showing their purported method of paying the plaintiffs salary plus overtime never corresponded to the gross amount of pay the plaintiff actually received. Defendants'...