Koch v. Jerry W. Bailey Trucking, Inc.

• Decision Date: 27 August 2020
• Docket Number: Cause No. 1:14-CV-72-HAB
• Citation: 482 F.Supp.3d 784
• Parties: Daniel KOCH, et al., Plaintiffs, v. JERRY W. BAILEY TRUCKING, INC., the Estate of Jerry W. Bailey, and Linda L. Bailey, Defendants.
• Court: U.S. District Court — Northern District of Indiana

482 F.Supp.3d 784

Daniel KOCH, et al., Plaintiffs,

v.JERRY W. BAILEY TRUCKING, INC., the Estate of Jerry W. Bailey, and Linda L. Bailey, Defendants.

Cause No. 1:14-CV-72-HAB

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

Signed August 27, 2020

Ronald E. Weldy, Weldy Law, Indianapolis, IN, for Plaintiffs.

Theodore T. Storer, Rothberg Logan & Warsco LLP, Fort Wayne, IN, for Defendants.

OPINION AND ORDER

HOLLY A. BRADY, JUDGE

"But everyone else is doing it!" This, effectively, is the excuse that Defendants advance for not paying their employee truck drivers to perform DOT inspections, among other tasks. This rationale has not worked on a mother in recorded history and, as it turns out, is no more effective when explaining away wage and hour violations.

Before the Court are competing, dispositive motions addressing Defendant Jerry W. Bailey Trucking, Inc.’s ("JWBT") policy of not paying its drivers for work performed at the company yard before leaving for, and after returning from, the day's work tasks. Having reviewed the filings and the entirety of the record, the Court concludes that JWBT committed violations of the Fair Labor Standards Act ("FLSA") and Indiana's wage statutes. As such, the Court will enter partial summary judgment in favor of Plaintiffs.

A. Factual and Procedural Background

1. Factual Background

Jerry W. Bailey ("Jerry") and Linda Bailey ("Linda") were co-owners of JWBT until Jerry's death. JWBT provides dump truck services, focusing on hauling demolition debris, limestone and dirt. With respect to the relevant periods here, JWBT always owned approximately 40 tri-axle dump trucks. All trucks would be in use each day during peak seasons, with around 15 in use each day during the off-season. JWBT had gross revenues of $500,000.00 in 2010, 2011, and 2012.

While he was alive, Jerry was President of JWBT in addition to acting as a manager. Jerry, along with his son, Chad, oversaw hiring, firing, and raises for drivers. Linda was the Vice President of JWBT. She oversaw HR and operations for the company. She also served as the record keeper for timecards, inputting the driver's time worked into the accounting system. She spoke with at least two of the Plaintiffs when their paychecks or hours were incorrect.

The time inputted by Linda would be recorded by drivers on handwritten timecards. Hours were recorded to the quarter-hour, with employees rounding to the nearest 15 minutes. JWBT had a written policy requiring its drivers to report to work 15 minutes prior to the start of shift. However, JWBT did not begin to pay the drivers until they had driven their truck out of the work yard. Similarly, JWBT considered a driver's workday to be over when he returned to JWBT's facility.¹

The apparent purpose for requiring drivers to report early was to allow the drivers to conduct pre-trip inspections of, and to warm up, the trucks. These inspections were required by JWBT policy and DOT regulations. Plaintiff Johnny Ray Wells, Jr. ("Wells") described a typical inspection:

I would go to the truck, I would open the hood and check the oil. After that, the oil's good and I didn't have to go to the shop to get some, I would shut the hood. I go to the truck and start it. I would turn on the lights and four-ways and proceed to walk around the truck, checking my tires, making sure I'm not missing any lug nuts or mud flaps, making sure everything's good to go. Walk completely around the truck, just to make sure all my lights were working correctly. And then I'd proceed to walk to the shop after that[.]

(ECF No. 222 at 7). While there was some discrepancy as to the exact amount of time this inspection would take, Plaintiffs universally estimated that they would spend approximately fifteen minutes inspecting their truck in the morning.

Defendants have a different take on the drivers’ morning routine. While they admit that the fifteen-minutes-early policy exists, they maintain that no one follows it. They also admit that drivers are supposed to conduct the inspection described by Wells, but they assert that the process only takes a few minutes. In a statement that would cause their liability insurer to have heart palpitations, Defendants state that sometimes drivers skip the inspection altogether. They also maintain that drivers often fail to warm up the diesel engines on the several-hundred-thousand-dollar dump trucks. Notably, Defendants do not testify that any of the Plaintiffs failed to conduct the required morning activities. Instead, their testimony indicts only unidentified "drivers."

Drivers had similar duties at the end of the day. After returning to JWBT, drivers would refuel their truck, record their mileage, conduct a post-trip inspection, and take their job paperwork into the office. Like the morning routine, Plaintiffs estimated that the process took approximately fifteen minutes, depending on whether the driver had to wait to refuel. Also like the morning routine, the drivers were not paid for this time.

Defendants do not dispute that the drivers had these morning and evening duties, nor that they were not on the clock while performing them. Instead, they provide reasons that this non-payment policy existed. Jerry testified that he talked to other dump truck business operators and believed that JWBT's policy was consistent with the rest of the industry. According to Plaintiffs, they were told that JWBT started the policy because "they had too many people out at the trucks talking, and that they were paying their drivers for that extra time; and they weren't going to do that anymore." (Id. at 5).

2. Procedural History

On March 7, 2014, Plaintiff Koch filed a class and collective action against Defendants for violations of the FLSA. (ECF No. 1). An Amended Complaint, adding Plaintiff Wells, was filed one week later. (ECF No. 8). Koch and Wells moved to certify a collective action on March 22, 2014, consisting of employees of JWBT who "were not paid overtime wages for time spent performing morning (pre-driving) inspections, fueling and end of day (post-driving) inspections." (ECF No. 18). Two months later, the parties filed a stipulation for collective certification of the overtime wage claim and a class certification of the regular wage claim. After more than a year of additional briefing, this Court certified the following class action:

All present truck drivers employed by Jerry W. Bailey Trucking Inc. and former truck drivers who voluntarily ended their employment, who were employed by Jerry W. Bailey Trucking Inc. on or after March 7, 2012, until November 1, 2013, and were not paid regular wages for time spent performing morning (pre-driving) inspections, fueling and end of day (post-driving) inspections.

(ECF No. 59 at 4). The Court also certified the following collective action:

All present and former truck drivers employed by Jerry W. Bailey Trucking Inc. who were employed on or after June 1, 2011, until November 1, 2013, and were not paid overtime wages for time spent performing morning (pre-driving) inspections, fueling, and end of day (post-driving) inspections.

(Id. at 5).

In April 2018, Defendants moved to decertify the class and collective actions. Finding that Plaintiffs could not satisfy the numerosity requirement of Federal Rule 23(a)(1), this Court decertified both the class and collective actions in May 2019.² As a result, Plaintiffs filed a Second Amended Complaint asserting individual claims on behalf of each Plaintiff. (ECF No. 191-1).

Defendants moved for summary judgment in April of this year. (ECF No. 204). On May 8, 2020, Plaintiffs moved to strike an argument in Defendant's summary judgment brief asserting that the Motor Carrier Exemption ("MCE") to the FLSA barred Plaintiffs’ claims. (ECF No. 207). Plaintiffs claimed that the MCE was an affirmative defense that should have been asserted in Defendants answers to any one of Plaintiffs’ complaints, and that Defendants’ failure to do so prejudiced them. This Court granted Plaintiffs’ motion to strike, striking Section II.B. of Defendants’ Memorandum in Support of Defendants’ Motion for Summary Judgment. (ECF. No. 213). Plaintiffs’ cross-moved for summary judgment (ECF No. 217), and both motions are now fully briefed.

B. Legal Analysis

1. Summary Judgment Standard

Summary judgment is warranted when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The non-moving party must marshal and present the Court with evidence on which a reasonable jury could rely to find in their favor. Goodman v. Nat'l Sec. Agency, Inc. , 621 F.3d 651, 654 (7th Cir. 2010). A court must deny a motion for summary judgment when the nonmoving party presents admissible evidence that creates a genuine issue of material fact. Luster v. Ill. Dep't of Corrs. , 652 F.3d 726, 731 (7th Cir. 2011) (citations omitted). A court's role in deciding a motion for summary judgment "is not to sift through the evidence, pondering the nuances and inconsistencies, and decide whom to believe. The court has one task and one task only: to decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial." Waldridge v. Am. Hoechst Corp. , 24 F.3d 918, 920 (7th Cir. 1994).

Facts that are outcome determinative under the applicable law are material for summary judgment purposes. Smith ex rel. Smith v. Severn , 129 F.3d 419, 427 (7th Cir. 1997). Although a bare contention that an issue of material fact exists is insufficient to create a factual dispute, a court must construe all facts in a light most favorable to the nonmoving party, view all reasonable inferences in that party's favor, Bellaver v. Quanex Corp. , 200 F.3d 485, 491–92 (7th Cir. 2000), and avoid "the temptation to decide which party's version of the facts is more likely true," Payne v. Pauley , 337 F.3d 767, 770 (7th Cir. 2003). Additionally, a court is not "obliged to research and...