Mathews v. Bronger Masonry Inc.

• Decision Date: 18 April 2011
• Docket Number: No. 1:09–cv–478–SEB–DML.,1:09–cv–478–SEB–DML.
• Citation: 772 F.Supp.2d 1004
• Parties: Penny MATHEWS, Plaintiff,v.BRONGER MASONRY, INC., Defendant.
• Court: U.S. District Court — Southern District of Indiana

772 F.Supp.2d 1004

Penny MATHEWS, Plaintiff,

v.BRONGER MASONRY, INC., Defendant.

No. 1:09–cv–478–SEB–DML.

United States District Court, S.D. Indiana, Indianapolis Division.

Feb. 18, 2011.Order Denying Reconsideration April 18, 2011.

Ronald E. Weldy, Weldy & Associates, Indianapolis, IN, for Plaintiff.Michael L. Einterz, Jr., Zachary Judson Eichel, Einterz & Einterz, Zionsville, IN, for Defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW FOLLOWING BENCH TRIAL

SARAH EVANS BARKER, District Judge.

This matter came before the Court on December 13–14, 2010, to resolve Plaintiff Penny Mathews's claims that Defendant Bronger Masonry, Inc. failed to pay her overtime wages for personal and vacation time accrued over the course of her employment, and, alternatively, an unpaid portion of her salary. Ms. Mathews's claims were brought pursuant to the Fair Labor Standards Act (“FLSA”) and the Indiana Wage Payment Statute, Ind.Code § 22–2–5–1 et al. For the reasons discussed below, we find Bronger Masonry, Inc. LIABLE to Ms. Penny Mathews in the amount of $676.92 plus reasonable attorney fees related to her claim for unpaid salary, pursuant to Ind.Code § 22–2–5–2.¹

Findings of Fact

Defendant Bronger Masonry, Inc. (“Bronger”) is an incorporated business with offices located in Boone County, Indiana. Stip. ¶ 1. Bronger is a masonry company that performs bricklaying services on construction projects. Bronger is an employer pursuant to the FLSA and Indiana's Wage Payment Statute. Stip. ¶¶ 5–6.

Ms. Mathews submitted her resume to Bronger through monster.com, an internet website designed to match employers with job applicants. The position posted on monster.com was entitled “Office Manager,” and was described with duties similar to positions Mathews had previously held at Duke Realty and two other construction companies. Dwayne Bronger, President and owner of Bronger Masonry, contacted Ms. Mathews shortly thereafter to discuss the position generally. During that discussion, Mr. Bronger provided Ms. Mathews with general information about the company, such as its size, typical projects, and revenue. Ms. Mathews sought clarification that the position was based on a 40 hour work week and explained that, if hired, she would need some time off for an impending dental procedure. This telephone discussion ended with an in-person interview scheduled for sometime during the first or second week of March, 2007.

Ms. Mathews's in-person interview took place at Bronger's office in Lebanon, Indiana, following which Ms. Mathews was hired and began working for Bronger on April 2, 2007. Stip. ¶ 2. Her employment there lasted approximately fifteen months, until July 29, 2008. Stip. ¶ 3. According to Ms. Mathews, the promised leave arrangements entitled her to 5 sick or personal days for the remainder of 2007 and to the same allocation in 2008. She was also entitled to one week of vacation time during the remainder of 2007 and, beginning in 2008, she would be entitled to two weeks of vacation time. Thus, given the length of Ms. Mathews's employment at Bronger, she was entitled to a total of 25 sick, personal, or vacation days. Bronger did not require that any of these days off be used for any specific purpose, i.e. Ms. Mathews was not required to actually be “sick” in order to utilize her sick days.

During the period Ms. Mathews was employed at Bronger, the company employed both salaried and hourly employees. Ms. Mathews estimated that Bronger employed a total of between 30 and 90 union employees during her term of employment. Bronger did not pay its hourly employees for holidays, vacation days, or paid time off. Bronger also employed approximately four office employees, including Ms. Mathews, Mr. Bronger, a field superintendent, and an estimator. Mr. Bronger testified that each of these office employees, as well as one truck driver, was a salaried employee. Bronger paid its salaried employees for holidays as well as their allotted time off. Bronger had no way of tracking its salaried employees' days off. Rather, these employees were responsible for tracking their own days off in accordance with an “honor system.”

Ms. Mathews began working for Bronger at a rate of compensation equal to $18.75 per hour, based upon a 40 hour work week. From the pay period beginning April 10, 2007 until the pay period ending October 29, 2007, Ms. Mathews was paid $750.00 without regard to whether she worked more or less than 40 hours per week. Over the course of Ms. Mathews's employment at Bronger, she received two pay raises. The first occurred in October, 2007, and the second occurred in June, 2008.² From the pay period beginning October 30, 2007 and through the pay period ending June 2, 2008, Ms. Mathews was paid $846.16, whether she worked more or less than 40 hours per week.³ From the pay period beginning June 3, 2008 and through the pay period ending July 28, 2008, Ms. Mathews was paid $902.16 per week.⁴ In sum, over the course of Ms. Mathews's employment at Bronger, she was paid for the equivalent of eight hours of work for every week day, regardless of her actual attendance, including holidays (with the exception of the two instances noted above.)

Mr. Bronger testified that Ms. Mathews's attendance record was on the whole unacceptable, including that she often arrived late to work. On January 8, 2008, Mr. Bronger sent Ms. Mathews a letter informing her that she would be suspended for three days without pay based on her pattern of poor attendance. That suspension, however, was not enforced.

In performing her assigned tasks, Ms. Mathews's utilized an accounting program called Quick Books. She also used Excel to create spreadsheets and a software program called Quantum which related to billings for government projects (this constituted the majority of Bronger's work). Most of information generated from these two programs was eventually put into Quick Books as well. Ms. Mathews's username for the Quick Books program was “Admin.”

Ms. Mathews testified that she worked under the direction of Mr. Bronger, but that she had considerable discretion in the performance of her duties. She indicated that she tried to complete all of her tasks within the 40 hour work week but that she was not always able to do so. As indicated in the parties' stipulations and elaborated on in Ms. Mathews's testimony, Ms. Mathews's duties at Bronger included the following responsibilities: (1) processing account receivables; (2) processing accounts payable; (3) answering telephones; (4) calculating payroll timesheets; (5) submitting that payroll information to the payroll company; (6) preparing bid documents; (7) maintaining personnel files; (8) combining invoices relating to certain projects and running job costing reports based on that information; (9) tracking job costs; (10) collecting unpaid invoices from third parties; (11) monitoring employee use of company cellular phones; (12) processing of workers' compensation claims; (13) dealing with corporate insurance; (14) reconciling vendor accounts; (15) collecting information from QuickBooks and Excel spreadsheets for use in monthly financials; (16) reconciling bank statements at the request of Bronger's outside accountants; (17) cleaning bathrooms and performing other janitorial duties; (18) purchasing office supplies; (19) working with Bronger's outside accountants; (20) assisting with union benefits; (21) managing capital assets; (22) working with the bank; (23) entering monthly general ledger journal entries; (24) setting up company email accounts; (25) processing company credit cards and expenses; (26) performing other administrative tasks, including faxing, filing, and copying. Stip. ¶ 78.

At trial, Ms. Mathews elaborated on almost all of these duties. For purposes of our ruling, the following details are relevant:

Payroll: Ms. Mathews's duty with regard to payroll was to collect timesheets from the Bronger employees and to put that information into a spreadsheet. Mr. Bronger would review the spreadsheet, make any necessary changes, and return the sheet to Ms. Mathews to forward to the outside company that handled Bronger's payroll.

Preparing Bid Documents: With regard to preparing bid documents, Ms. Mathews's duty was to order plans for the projects and to enter Bronger's “standard” information, i.e. name of the company, address, etc., into the bid documents. She highlighted non-standard portions of the documents for Mr. Bronger to complete. Ms. Mathews estimated that, on average, it took her half of a day to prepare a set of bid documents.

Collecting Unpaid Invoices: Ms. Mathews ran a report showing past due accounts and telephoned those customers to inquire about the unpaid amounts.

Company Financials: Ms. Mathews did not prepare the company's year-end financials. Bronger employed an outside accounting firm for that purpose. However, Ms. Mathews collected the company's financial information from QuickBooks and Excel for use by the accountants. At one point, Bronger's accountants discovered a mistake in Bronger's reported cash account, after which discovery, the accountants directed Ms. Mathews to reconcile 16 months worth of prior bank statements. Ms. Mathews explained that her process was to “undo” the bank reconciliation, to verify the correctness of the information within the statement by matching it up with the transactions recorded in QuickBooks, and, finally, to re-reconcile the statements. Ms. Mathews explained that Bronger's accounting firm instructed her on how to complete this process.

Setting Up Company Email Accounts: At Mr. Bronger's direction, Ms. Mathews was responsible for moving Bronger's employees onto a “business-based” e-mail system under the Bronger domain name. She contacted the company that Bronger used for their internet access and followed their instructions to set up those accounts.

Bronger's work week was Tuesday through Monday, and the employees were paid weekly. When Ms. Mathews...