Johnson v. Rgis Inventory Specialists

• Decision Date: 29 May 2007
• Docket Number: Civil Action No. 1:05-CV-389.
• Citation: 554 F.Supp.2d 693
• Parties: Joel JOHNSON, Plaintiff, v. RGIS INVENTORY SPECIALISTS, Defendant.
• Court: U.S. District Court — Eastern District of Texas

554 F.Supp.2d 693

Joel JOHNSON, Plaintiff, v. RGIS INVENTORY SPECIALISTS, Defendant.

Civil Action No. 1:05-CV-389.

United States District Court, E.D. Texas, Beaumont Division.

May 29, 2007.

COPYRIGHT MATERIAL OMITTED

Camilla L. Roberson and Guy B. Wallace, of Schneider & Wallace, San Francisco, CA, Peter Brian Schneider and William T. Jones, Jr. of Grady Schneider Newman LLP, Houston, TX, for Plaintiff.

Larry James Simmons, Jr. of Germer Gertz, Beaumont, TX, Cheryl D. Orr and Heather M. Sager of Drinker Biddle & Reath LLP, San Francisco, CA, for Defendant.

MEMORANDUM AND ORDER

MARCIA A. CRONE, Judge.

Pending before the court is Defendant RGIS Inventory Specialists's ("RGIS") Motion for Summary Judgment (# 83). RGIS seeks summary judgment on Plaintiff Joel Johnson's ("Johnson") claims against RGIS for purported violations of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201-219. Having reviewed the pending motion, the submissions of the parties, the pleadings, and the applicable law, the court is of the opinion that summary judgment should be granted in part and denied in part.

I. Background

This lawsuit was filed on June 7, 2005, to challenge the compensation practices of RGIS and recover allegedly unpaid over-time and minimum wages pursuant to the FLSA's collective action provision. See 29 U.S.C. § 216(b). RGIS is the nation's largest provider of inventory services to the retail industry, employing individuals to count and record merchandise for its customers. Johnson, on her own behalf and on behalf of others similarly situated, alleges that RGIS has engaged, and continues to engage, in a willful policy, pattern, or practice of denying its employees working as "auditors" full compensation for all hours worked.

On June 27, 2006, the court conditionally certified a class of non-exempt, hourly auditors working within District 166 during the three-year period prior to the filing of Johnson's lawsuit and authorized Johnson to send notice to said individuals.¹ Twenty-four opt-in plaintiffs consented to participate in this action. On March 23, 2007, however, the court decertified the class upon motion by RGIS because the class members were not sufficiently similar to each other or to Johnson to warrant collective treatment. Accordingly, the opt-in plaintiffs were dismissed without prejudice and Johnson proceeds on her individual claims against RGIS.

Johnson was employed by RGIS from December 18, 1996, until October 25, 2004, when RGIS terminated her employment. She was initially hired as an auditor, which is an hourly position held by employees trained in the use of RGIS equipment to count merchandise at retail stores. Auditors are entry-level employees who are supervised during an inventory by a team leader, area manager, district manager, or any combination thereof. Although Johnson was promoted to team leader approximately three months after she was hired, she requested to step down from that position and resumed her duties as an auditor on July 21, 2001.² Because the relevant time period in this case is from June 7, 2002, until Johnson's termination on October 25, 2004, only her experiences as an auditor are at issue.

Due to the diverse locations of RGIS's customers, the stores are categorized by the district manager as either "local stores" or "travel stores." While RGIS has no specific policy with regard to designating certain stores as local and others as travel, locations more than twenty miles from Beaumont are generally considered travel stores and those less than twenty miles from Beaumont are ordinarily deemed local stores. According to Johnson, approximately half of her inventories were completed at local stores and half were completed at travel stores. She acknowledged that this ratio was different for other employees and that some employees opted to work only at local stores. Johnson described working at travel stores within a one hour to two-and-one-half hour drive from Beaumont, in locations such as Lake Charles, Louisiana, Lufkin, Texas, and Houston, Texas.

Generally, auditors are expected to provide their own transportation directly to the job site when an inventory is scheduled at a local store. For travel stores, District 166 uses the Beaumont district office as a "meet site" and offers free transportation to and from the inventory. A meet site may also be designated for a local inventory if concerns such as limited parking, toll roads, or multi-store inventories in scattered locations pose a problem. As Johnson explained at deposition, when her schedule indicated a meet site was offered, she had the option of arriving at the meet site and riding in an RGIS van, arriving at the meet site and taking her own vehicle or riding in another auditor's vehicle, or notifying her supervisor that she wished to transport herself to the inventory directly rather than use the meet site. Johnson typically chose to utilize the meet site and company transportation.

If a meet site is designated, whether the inventory is at a local or travel store, RGIS's travel and commute policy applies. RGIS implemented two different travel and commute policies between 2002 and 2004, which compensated auditors for certain hours spent traveling to and from inventories. Prior to March 2004, RGIS paid for travel time if there was a meet site designated and the employee reported to the meet site.³ The rate paid to auditors was based on a varying number of cents per mile, less twenty miles per round trip, or a minimum of $4.00 per hour, whichever rate was higher. After March 2004, however, RGIS modified its travel policy to pay auditors a flat rate of $5.15 per hour, minus the first hour of travel from the meet site to the inventory and the first hour of travel from the inventory back to the meet site. RGIS classified the two unpaid hours as noncompensable "commute time." In situations where an auditor worked at more than one store during a particular shift ("multi-store shift"), she continued to receive her inventory rate if the travel between job sites equaled one hour or less; if such travel exceeded one hour, the auditor received travel pay.

Additionally, RGIS management lists a "meet time" on auditors' schedules when a meet site is designated for an inventory. According to the RGIS Auditor's Handbook, the meet time represents the time that the company van is scheduled to leave the meet site. Thus, auditors are expected to arrive at the meet site promptly to enable the van to depart on schedule. Johnson alleges that the district manager, Ronald Eckerle ("Eckerle"), and area manager, Alecia Montgomery ("Montgomery"), frequently asked her to arrive at the meet site at least fifteen minutes prior to the scheduled meet time. Johnson contends that she complied with such requests but was not paid for arriving early. Rather, her travel pay commenced at the scheduled meet time.⁴ Similarly, Johnson asserts that management asked her to arrive at least fifteen minutes early at local inventories but she was not paid until the time the inventory was scheduled to begin. Although RGIS disputes that Johnson was required to arrive early at inventories or meet sites, it does not contest that travel pay commenced at the scheduled meet time and inventory pay commenced at the scheduled inventory start time or, in some cases, the actual start time if the inventory began ahead of schedule.

Johnson further alleges that she was not paid for tasks she completed in the van en route to the job site at the request of her supervisor. Specifically, Johnson claims that she would fill out paperwork, upload and download information between the audit machines and the portable computer, and verify that all of the required equipment was loaded into the van. She explained at deposition that such work occurred approximately once per month, when she inventoried delicatessens at various Wal-Mart locations. Team leader Doris Robertson ("Robertson") usually asked Johnson to perform this work, telling her that she did not have time to complete the tasks herself. Such duties were the responsibility of the team leader and were not part of Johnson's duties as an auditor. Johnson also contends that she helped load and unload equipment from the van and that supervisors occasionally held pre-inventory meetings, which are described below, in the company van while riding to travel stores.

Upon arrival at a job site, auditors must don special equipment in order to perform the inventory. Such equipment typically includes: (1) a belt and pouch that each auditor personally brings to the inventory; (2) a small portable computer, known as an Audit® or Audit Machine, which tracks the information from the inventory; (3) a laser gun used to scan bar codes that attaches to the Audit via a cable; (4) inventory tags to mark different areas of the store; and (5) a pen or other writing device. According to Johnson, she usually spent two to three minutes waiting in line to pick up her equipment in the store, twenty to thirty seconds putting on her belt, five seconds clipping the Audit to her belt, five seconds attaching the laser gun to the Audit, and one to two minutes turning on the Audit and waiting for the information to download.⁵ Hence, it generally took Johnson approximately four to six minutes to gather, don, and prepare her equipment.

Once the auditors don their equipment, the inventory supervisor conducts a preinventory meeting. As described by district manager Eckerle, the supervisor generally thanks the auditors for coming to the inventory, reiterates that accuracy is RGIS's primary concern, and provides instructions unique to the specific inventory, such as describing the layout of the store and explaining which items should be counted. Johnson stated at deposition that these pre-inventory meetings lasted no longer than ten minutes and occurred after the scheduled inventory start time. She also acknowledged that she received inventory pay for such...