McKinney v. Med Grp. Transp. LLC
| Decision Date | 18 December 2013 |
| Docket Number | Case No. 13–CV–222–JPS. |
| Parties | Lyndon McKINNEY, John Baldwin Jr., Douglas Blackshire, Douglas Blackshire Jr., Gregory Boyd, Ulysses A. Chaney, Stewart Clifford, Theodore Cobbs, Tony Colts, Mario Corday Davis, Floy Denson, Renee Green, Dion Griffin, Walter Hankins, Waymon Harris, Tyrone Harris, Victor Irving, Kilia Irving, Donnell Jackson, Calvin Jamison, Otis Jones, William Laster, Demetrius Love, Sammie Luckett, Lisa Luckett Jones, Ulysses Marshall, Eunice Martin, Treva Matchem, Joe Miller, Rickey Norman, Rondalyn Perry, Jessica Robinson, Dwayne F. Slade, Todd Smith, Antoine Sykes, Derris Sylvester, Jacqueline Thomas, Allen Vaughn, Kevin Wallace, Tyrone Whitley, Jay Wright, and Jerry L. Young, Plaintiffs, v. MED GROUP TRANSPORTATION LLC and Gene Shikhman, Defendants. |
| Court | U.S. District Court — Eastern District of Wisconsin |
OPINION TEXT STARTS HERE
Summer H. Murshid, Larry A. Johnson, Hawks Quindel SC, Milwaukee, WI, for Plaintiffs.
Eugene Bykhovsky, Machulak Robertson & Sodos, Milwaukee, WI, for Defendants.
This action, filed in February of this year, was originally filed as a class action by plaintiff Lyndon McKinney (“McKinney”), asserting that defendants Med Group Transportation LLC (“Med Group”) and Gene Shikhman (“Shikhman”) violated the federal Fair Labor Standards Act (“FLSA”) and Wisconsin's Wage Payment and Collection Laws (“WWPCL”) when they did not compensate McKinney and other drivers for pre- and post-shift travel time, and when they did not award premium pay for hours worked in excess of forty per week. (Docket # 1). The court conditionally certified a class pursuant to the parties' stipulation. (Docket # 33). Defendants were ordered to produce a class list of all persons who have been employed as drivers between April 12, 2010, and March 11, 2013. The parties stipulated to grant McKinney leave to amend his complaint to add each individual who opted into the action as a plaintiff; plaintiffs so filed an amended complaint, the operative complaint for this action. (Docket # 64).
This matter comes before the court on plaintiffs' motion for summary judgment. (Docket # 65). In their motion, plaintiffs argue that they are entitled to summary judgment on their claims for premium overtime compensation and for compensation for time pre- and post-shift driving time. In opposition, defendants argue that they are exempted from the obligation to pay overtime premium pay because they are in the “business of operating taxicabs,” one type of business exempted from overtime obligations under the FLSA. As to the charge that they must pay their drivers for pre-and post-shift travel time, Med Group argues, in part, that plaintiffs do not state a claim under the FLSA because the plaintiffs' compensation remained higher than the minimum hourly wage. For the reasons explained below, the court concludes that Med Group is not entitled to invoke the taxicab exemption to the FLSA, and that, therefore, Med Group is obligated to pay the plaintiffs premium overtime compensation for hours worked in excess of forty per week. The court further concludes that plaintiffs have not met their burden to prove entitlement to summary judgment on their claim for travel time compensation. Accordingly, plaintiffs' motion will be granted in part and denied in part, for the reasons that follow.
1. Facts
The following undisputed facts are presented, for clarity of analysis, according to their relevance to the claims before the court.
1.1 Facts Relevant to the Taxicab Exemption
Med Group is a Wisconsin corporation located in Mequon, Wisconsin, that provides non-emergency medical transportation in Milwaukee, Waukesha, and Ozaukee Counties. Plaintiffs' Proposed Findings of Fact and Defendants' Response (“Pl. PFOF”) (Dockets # 67, # 80) ¶ 1. Over half of Med Group's clients are elderly or disabled, and others require transportation for health care-related or mental health-related appointments, such as visits to their psychologist. Pl. PFOF ¶ 6. Drivers for Med Group use Med Group's vans to provide door-to-door transportation servicesto Med Group's clients. Stipulated Findings of Fact ( ) (Docket # 66) ¶ 6. Med Group's vehicles are mostly Dodge and Chrysler minivans with the company logo on the side. Defendants' Proposed Findings of Fact and Plaintiffs' Response (“Def. PFOF”) (Dockets # 79, # 83) ¶ 3. Some of Med Group's vans are modified to accommodate loading and unloading of wheelchair-bound clients, but fifty percent of the vehicles are ordinary minivans. Stip. FOF ¶ 15; Def. PFOF ¶ 3. Med Group's vans do not have a top light located on their roofs to indicate whether the vehicles are available for hire. Stip. FOF ¶ 16. The vans do not have the word “taxi” displayed inside or outside the vans, nor do they have the word “Milwaukee” or a Milwaukee-issued taxi permit number displayed outside the van. Stip. FOF ¶¶ 17, 18. Med Group does not display the rates that a client will be charged for services on the inside of their vehicles. Stip. FOF ¶ 22. The vehicles have neither a taximeter to track the milage of the clients' trips, nor credit card machines to accept payment by credit card. Stip. FOF ¶¶ 20, 21.
Between ninety-five to ninety-eight percent of Med Group's business comes through contracts with third parties, including the Department of Aging, Logisticare, and MTM; these contracts require Med Group to provide transportation services to individual clients in return for payment from the agencies or brokers at a rate set by the contract. Pl. PFOF ¶¶ 2, 3. For clients transported under these contracts, Med Group does not collect payment at the time the transportation service is provided, but instead bills the appropriate third party and is paid at a later date. Pl. PFOF ¶ 4. The remaining two to five percent of Med Group's business comes from private pay clients. Stip. FOF ¶ 8. Med Group sets its own rates for private pay clients. Stip. FOF ¶ 10. These private pay clients either pay at the time services are rendered, or they are billed, depending on the client's relationship with Med Group. Stip. FOF ¶ 9.
Med Group contacts its drivers with information about their first pick-up for a given day on the night before that pick-up. Stip. FOF ¶ 25. The drivers first report to Med Group's Mequon location to pick up a vehicle. Pl. PFOF ¶ 18. While the first few pick-ups are generally scheduled for a driver each morning, the driver will not receive information about anything other than the first pick-up until he arrives at Med Group's Mequon location. Stip. FOF ¶ 27. After finishing their scheduled stops, the drivers call Med Group's dispatchers to determine where their next pick-up will be. Stip. FOF ¶ 28. Drivers continue to call the dispatchers via a two-way radio to determine every pick-up of the day after finishing their pre-scheduled stops. Stip. FOF ¶ 29. The drivers may experience standby time in the course of their day; during those times, they may take their breaks or run personal errands but they are required by Med Group to stay within a ten-block radius of their last drop-off. Stip. FOF ¶¶ 30, 31; Def. FOF ¶ 20. A driver's day ends when dispatch informs the driver that there are no more pick-ups for that driver that day. Stip. FOF ¶ 32. At the end of the day, the driver must return the van to Med Group's Mequon location within a half-hour of their last drop-off; drivers cannot continue to look for new customers after Med Group tells them that their shifts are over. Stip. FOF ¶ 33; Pl. PFOF ¶ 21. The drivers usually drop off their daily trip logs, which they are required to complete during the course of the day, when they drop off the vehicle, or when they pick up their vehicle prior to their next shift. Def. FOF ¶ 48. Drivers are not allowed to take Med Group's vehicles home overnight.1 Stip. FOF ¶ 34. Med Group's drivers are not paid a percentage of fares they collect; instead they are paid an hourly rate that is generally around ten dollars per hour. Pl. PFOF ¶ 22. Med Group's drivers are permitted to receive tips from their passengers. Def. PFOF ¶ 23.
All of Med Group's clients must schedule transportation services through the company's dispatchers. Stip. FOF ¶ 11. Ninety-nine percent of Med Group's transportation services are pre-scheduled. Pl. PFOF ¶ 9. In four years of operation, Med Group has only had its drivers pick up unscheduled clients for “maybe 50 or more” rides. Pl. PFOF ¶ 10. On very rare occasions,2 Med Group's drivers may be approached for transportation by a private pay client, a client who was earlier dropped off by Med Group, or a client who has been pre-approved to use Med Group's services by the client's insurance; the drivers must call in to Med Group's dispatch for approval in order to transport the client. Pl. PFOF ¶ 8. While half of the time Med Group transports a single passenger, Med Group allows multiple, unrelated clients that are paying separately for Med Group's services to be transported in the same van at the same time. Stip. FOF ¶ 12; Def. PFOF ¶ 12.
Med Group has not been issued any permits for its vehicles by the City of Milwaukee. Pl. PFOF ¶ 14. The City of Milwaukee also requires specialized public passenger vehicle licenses (“PPLs”) for drivers that provide personal transportation services to the public within the City. Pl. PFOF ¶ 15. Separate classes of PPLs are required in order to operate different types of public passenger vehicles, including “T” class for taxis and “H” class for handicapped elderly liveries. Pl. PFOF ¶ 16. Med Group has never required applicants for the Driver position to obtain a “T” class PPL in order to be hired, though Med Group could be subject to fines by the City of Milwaukee as a result. Stip. FOF ¶¶ 23, 24. Med Group does not advertise as a taxi service in the phone book. Stip. FOF ¶ 19.
Defendant Gene Shikhman is the husband of Med Group's owner, Dariko Mekvabishvili, and oversees Med Group's finances, human...
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