Kuebel v. Black & Decker Inc.

• Decision Date: 05 May 2011
• Docket Number: Docket No. 10–2273–cv.
• Citation: 643 F.3d 352,17 Wage & Hour Cas.2d (BNA) 1025
• Court: U.S. Court of Appeals — Second Circuit
• Parties: Greg KUEBEL, on behalf of himself and all others similarly situated, Plaintiff–Appellant,Sava Ghicas, Plaintiff,v.BLACK & DECKER INC., United States, Defendant–Appellee.

643 F.3d 352

161 Lab.Cas. P 35,900

17 Wage & Hour Cas.2d (BNA) 1025

Greg KUEBEL, on behalf of himself and all others similarly situated, Plaintiff–Appellant,Sava Ghicas, Plaintiff,

v.BLACK & DECKER INC., United States, Defendant–Appellee.

Docket No. 10–2273–cv.

United States Court of Appeals, Second Circuit.

Argued: March 10, 2011.Decided: May 5, 2011.

J. Nelson Thomas, Thomas & Solomon LLP, Rochester, N.Y. (Alan G. Crone, Kramer & Crone, PLC, Memphis, TN, on the brief), for Plaintiff–Appellant.Amanda C. Sommerfeld, Winston & Strawn LLP, Los Angeles, CA, for Defendant–Appellee.Before: B.D. PARKER, LIVINGSTON, and LYNCH, Circuit Judges.B.D. PARKER, JR., Circuit Judge:

Plaintiff–Appellant Greg Kuebel appeals from a judgment of the United States District Court for the Western District of New York (Telesca, J.) granting summary judgment for Defendant–Appellee Black & Decker (U.S.) Inc. (“B & D”). Kuebel sues on behalf of himself and other similarly situated current and former B & D employees, asserting three sets of claims under the Fair Labor Standards Act and the New York Labor Law. Principally, Kuebel asserts that B & D owes him compensation for (1) all of the time he spent commuting between home and the job site (the “commute time” claims), and (2) overtime hours that he allegedly worked but did not record (the “off-the-clock” claims). He also alleges that B & D fired him in retaliation for complaining about unpaid overtime (the “retaliation” claims). As explained below, we conclude that the district court properly granted B & D summary judgment on the commute time claims, but that Kuebel has raised genuine issues of material fact on his off-the-clock claims. We leave it to the district court to decide in the first instance whether to allow Kuebel to reassert his retaliation claims, which he abandoned below, in light of recent Supreme Court precedent. Accordingly, we affirm in part, vacate in part, and remand for further proceedings consistent with this opinion.

BACKGROUND

The Parties

B & D is a manufacturer of power tools, and sells its products in stores like Home Depot.¹ Kuebel was employed by B & D as a Retail Specialist from September 2006 to June 2007. Retail Specialists are assigned to particular Home Depot stores within a specified territory, and are responsible for B & D product merchandising and marketing at those stores. Kuebel was assigned to six Home Depot stores, ranging from twenty minutes to three hours from his home by car. As a Retail Specialist, he did not report to a central office, but rather used his home as a base. While he was employed by B & D, Kuebel also did merchandising work for three other companies.

Kuebel's Job Duties

Kuebel's primary responsibility as a Retail Specialist was to ensure that B & D products were properly stocked, priced, and displayed in his assigned Home Depot stores. His duties also included setting up B & D displays, training Home Depot sales employees, and assisting those employees in selling B & D products. B & D expected a Retail Specialist to spend five to eight hours per day completing these in-store activities.

Retail Specialists were required to use B & D-issued Personal Digital Assistants (“PDAs”) to record entry and exit times at their assigned Home Depot stores. B & D refers to the amount of in-store time recorded by a PDA as “Beacon” hours. A Retail Specialist's Beacon hours were 0 electronically communicated to his managers when he synchronized (synched) his PDA with B & D's server. To synch his PDA, Kuebel plugged it into a cradle attached to his home computer. B & D expected Retail Specialists to synch their PDAs six times per week. Electronic records show that Kuebel typically synched his PDA five or six times per week, usually in the evening; that it almost always took him less than a minute to synch his PDA; and that it was not uncommon for him to synch his PDA fairly late at night, around 10:00 p.m.

In addition to synching his PDA, Kuebel performed several other tasks at his home office. These activities included reading and responding to company emails, checking voicemail, printing and reviewing sales reports, organizing “point-of-purchase” materials (e.g., fact tags for B & D products), making display signs, taking online training courses, and loading and unloading his car. B & D expected these “administrative” duties to take a Retail Specialist on average thirty minutes per day. Kuebel, however, testified that it took him thirty minutes to an hour to complete these at-home activities—fifteen to thirty minutes in the morning, before driving to his first Home Depot store of the day, and fifteen to thirty minutes in the evening, after returning home from his last store. B & D asserts that Kuebel was not required to perform all of these activities at home, or at any particular time of day. However, B & D does instruct Retail Specialists to record the time they spend working at home, and its policy is to pay them for that time.

B & D's Commute Time Policy

In 2004, B & D consulted with outside counsel regarding an appropriate compensation policy for time spent by field employees (like Retail Specialists) traveling to and from their job 1 sites. In advising B & D, outside counsel relied on a January 29, 1999 opinion letter issued by the Wage and Hour Division of the Department of Labor (“DOL”), which stated, in response to an inquiry concerning the compensability of field employees' travel time, that “[the DOL] would not take exception to a practice that treats one hour of commuting time as non-compensable home-to-work travel, and that treats all travel time in excess of that amount as hours worked,” 1999 DOLWH LEXIS 9, at *6. In light of that letter, B & D implemented a policy of paying Retail Specialists for time spent driving to their first Home Depot store of the day and for time spent driving home from the last store of the day, to the extent that travel time represented travel in excess of sixty miles for either leg. Some managers, including Kuebel's, instructed their Retail Specialists that commute time to and from home was compensable to the extent it was for travel in excess of sixty minutes in duration, rather than sixty miles in length. Kuebel was compensated in accordance with that policy. For example, if he drove 2.5 hours from home to his assigned store in the morning, and 2.5 hours from that store back home at the end of the day, he was paid for three of those five hours of commuting time.

B & D's Time Reporting Policies

B & D's policies required Retail Specialists to accurately record their hours on timesheets that they submitted to their managers. In a January 2007 email sent to all employees, including Retail Specialists, B & D reiterated that employees were obligated to “[e]nsure that business records (for example, timecards ...) are honest, complete, and not misleading,” and should “watch out” for “going along with the creation of inaccurate or misleading records”; the email also provided a phone number that could be used to anonymously report violations of these policies.

It is undisputed that there was no official written B & D policy that prohibited Retail Specialists from working, recording, and being paid for overtime. Indeed, the one time that Kuebel recorded overtime (a half hour), he was paid for it. However, B & D believed that Retail Specialists should be able to complete all of their in-store and administrative duties, as well as any compensable commute time, in a forty-hour workweek. B & D therefore “expect[s] Retail Specialists to manage themselves and budget their time for a 40–hour workweek.” Appellee's Br. 11.

Kuebel's Time Reporting Practices

Kuebel alleges that it was not possible to complete all of his duties in forty hours per week and that, as a result, he frequently worked overtime. However, he did not record any overtime on his timesheets (except for the one occasion noted above), and thus was not paid for his alleged overtime. Kuebel testified at his deposition that when he worked more than forty hours in a week, he would shave his time entry for Friday so that his recorded hours for the week added up to only forty. He estimated that when he was reporting to his first supervisor (Uzo Idigo, from September 2006 to January 2007), 50% of his timesheets were false, and that when he was reporting to his second supervisor (Scott Davolt, from January 2007 to June 2007), 90% were false. In a subsequent declaration submitted in opposition to B & D's summary judgment motion, Kuebel averred that to the best of his memory, he worked more than forty hours “just about every week,” and “averaged from one to five hours of uncompensated overtime every week.”

Kuebel asserts that he falsified his timesheets because his supervisors instructed him not to record more than forty hours per week. He testified that at monthly meetings, “there was always a point that [Idigo] and Mr. Davolt and [another manager] would always indicate that we [Retail Specialists] were not to put more than forty hours on our time sheet,” and that Davolt “told all of the reps that they were only to record forty hours a week, ... no matter what they worked during that particular week.” Kuebel further testified that during a personal discussion with Davolt on February 22, 2007, Davolt said to him, “you can't work overtime, you're only supposed to put forty hours on your timecard.”

During that same discussion, Kuebel allegedly told Davolt that the forty hours appearing on his timesheets “was not accurate” because he was working more than forty hours per week, and Davolt responded, “you're only supposed to mark forty on your timecard because we can't afford overtime.” According to Kuebel, he similarly complained to Davolt about uncompensated overtime on three occasions in May 2007. For example, he testified that on one occasion, he told Davolt that he was “working extra hours” but “still only putting forty hours on my time sheet per...