NEEDREPLACE, Civil Case No. PWG–13–1696.

CourtNew York District Court
Writing for the CourtPAUL W. GRIMM
Citation7 F.Supp.3d 561
Decision Date25 March 2014
Docket NumberCivil Case No. PWG–13–1696.
PartiesGregory RANDOLPH, et al., Plaintiffs, v. POWERCOMM CONSTRUCTION, INC., et al., Defendants.

7 F.Supp.3d 561

Gregory RANDOLPH, et al., Plaintiffs,

Civil Case No. PWG–13–1696.

United States District Court, D. Maryland, Southern Division.

Signed March 25, 2014

Company's motion denied and controllers' motion granted.

[7 F.Supp.3d 563]

Robert Scott Oswald, Nicholas Wyckoff Woodfield, The Employment Law Group PC, Washington, DC, for Plaintiffs.

Geoffrey Martin Bohn Bohn and Kouretas PLC, Arlington, VA, for Defendants.

PAUL W. GRIMM, District Judge.

Plaintiffs bring this collective action under the Fair Labor Standards Act (“FLSA”) and the Maryland Wage and Hour Law (“MWHL”), alleging that they worked in excess of forty hours per week as traffic controllers for Defendant PowerComm Construction, Inc. (“PowerComm”) but were not paid sufficient overtime wages. Defendants have moved for summary judgment, arguing that Plaintiffs were independent contractors and not employees covered by the FLSA and MWHL. Plaintiffs respond that, even though they were classified as independent contractors by PowerComm, they actually qualify under the federal and state statutes as employees. Plaintiffs also seek permission to provide notice to other potential plaintiffs. Because a reasonable jury could find that Plaintiffs are employees under the FLSA and MWHL, I deny Defendants' motion for summary judgment and grant Plaintiffs' motion to provide notice.


In reviewing a motion for summary judgment, the Court considers the facts in the light most favorable to the non-movant, drawing all justifiable inferences in that party's favor. Ricci v. DeStefano, 557 U.S. 557, 585–86, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009); George & Co., LLC v. Imagination Entm't Ltd., 575 F.3d 383, 391–92 (4th Cir.2009); Dean v. Martinez, 336 F.Supp.2d 477, 480 (D.Md.2004). Unless otherwise stated, this background is composed of undisputed facts. Where a dispute exists, I consider the facts in the light most favorable to Plaintiffs. See Ricci, 557 U.S. at 585–86, 129 S.Ct. 2658; George & Co., 575 F.3d at 391–92; Dean, 336 F.Supp.2d at 480.

Defendant PowerComm is an electrical utility construction company that “ ‘specializes in construction, upgrading, and maintenance of overhead and underground distribution systems.’ ” First Kwasnik Decl. ¶ 3–4, Mem. of Points & Authorities in Support of Defs.' Mot. for Summ. J. as to Pl.'s Individual Claims (“Defs.' Randolph Summ. J. Mem.”) Ex. 1, ECF No. 21. Defendant David Kwasnik, Sr. has been President and CEO of PowerComm since 2010. Id. ¶ 2.

Plaintiffs Gregory Randolph and Dana Brown both have worked as “flaggers,” or traffic controllers, for PowerComm. See Randolph Decl. ¶ 1, Pl.'s Opp'n to Defs.' Mot. for Summ. J. as to Pl.'s Individual

[7 F.Supp.3d 564]

Claims (“Randolph Summ. J. Opp'n”) Ex. 1, ECF No. 24; Brown Decl. ¶ 1, Pls.' Opp'n to Defs.' Mot. for Summ. J. as to Pl. Dana Brown (“Brown Summ. J. Opp'n”) Ex. 1, ECF No. 37. As a flagger, Randolph and Brown each “directed traffic through PowerComm construction sites or other temporary traffic control zones past an area using signs or flags. [They were] responsible for maintaining the safety and efficiency of traffic, as well as the safety of road workers, while allowing construction, accident recovery or other tasks to proceed.” Randolph Decl. ¶ 2; Brown Decl. ¶ 2.

PowerComm has provided traffic control services to Pepco since 2002, id. ¶ 3, but otherwise does not perform traffic services, and most of its work does not require traffic control. First Kwasnik Decl. ¶ 6. Kwasnik asserts that PowerComm “has used independent contractors to provide traffic control services to Pepco” and that “[s]ome of PowerComm's traffic controllers schedule their work directly with Pepco's other contractors and not with PowerComm.” Id. ¶ 13.

While working for PowerComm, both Randolph and Brown became certified as flaggers by the American Traffic Safety Services Association, Randolph Decl. ¶ 4; Brown Decl. ¶ 4, which was a necessary prerequisite to work as a flagger, First Kwasnik Decl. ¶ 9. Randolph was trained for this qualification by Milton Roosevelt, whom he describes as a PowerComm supervisor, Randolph Decl. ¶ 4, but whom Kwasnik characterizes as “an independent contractor pursuant to having signed IRS form W–9,” Second Kwasnik Decl. ¶ 7, Defs.' Reply in Further Support of Defs.' Mot. for Summ. J. as to Pls.' Individual Claims (“Defs.' Reply/Randolph”) Ex. 18, ECF No. 33, and who worked for another company, First Kwasnik Decl. ¶ 23.1 Brown was trained on the job by Randolph. Brown Decl. ¶ 4.

Plaintiffs were required to provide their own “personal protective equipment,” which included boots, reflective clothing, hard hats, and eye and ear protection, First Kwasnik Decl. ¶¶ 8, 10, but PowerComm supplied flagging equipment and transportation to job sites, Randolph Decl. ¶ 9; Brown Decl. ¶ 9. “Some of PowerComm's traffic controllers work only part time.” First Kwasnik Decl. ¶ 16.

The parties disagree as to whether Plaintiffs worked for PowerComm. Plaintiffs both allege that they did. Randolph Decl. ¶ 1; Brown Decl. ¶ 1. Defendants allege that “PowerComm did not use its own traffic controllers, (including Gregory Randolph or Dana Brown).” Second Kwasnik Decl. ¶ 4. However, there is no dispute that both Randolph and Brown were paid by PowerComm for their work in a job that Defendants repeatedly have described as a “PowerComm traffic controller.” See Kwasnik, Jr. Decl. ¶¶ 3–15.

A. Gregory Randolph

Gregory Randolph alleges that he was required to call his crew foreman, Chester Brown, every morning to find out if there was work for him that day, and that he was required to work whenever Brown had work for him. Randolph Decl. ¶¶ 7–8. When there was work, Randolph would

[7 F.Supp.3d 565]

report to a Pepco yard, record his start time, and then drive to the worksite in a van provided by PowerComm. Id. ¶¶ 10–11. At the end of the day, Randolph would drive the van back to the Pepco yard and record his end time. Id. ¶ 12. Randolph often worked twelve-hour days, at a wage of $12.00 per hour irrespective of how many hours he worked. Id. ¶ 13. Randolph has attached to his Declaration several pay stubs, all of which indicate that he was paid for his work by PowerComm. See id. ¶ 14. Randolph's income typically was reflected on a 1099 form from PowerComm, but sometimes was recorded on a W–2 form. Id.

At some point, Randolph came to believe that he was entitled to time-and-a-half for work in excess of forty hours a week, and spoke to Kwasnik's son, Dave Kwasnik, Jr. (“Kwasnik, Jr.”). Id. ¶ 16–17. Kwasnik, Jr. stated that he did not have any documentation for Randolph but otherwise would be willing to pay him overtime; Randolph was fired a few days later. Id. ¶¶ 19–20.2 Randolph avers that he did not receive overtime pay from June 12, 2010 through approximately March 2013, during which time he worked an average of fifty-five hours per week at a wage of $10.00 to $12.00 per hour, totaling approximately $11,797.50 in unpaid overtime. Id. ¶ 23.

Defendants dispute several of Randolph's facts, and have introduced declarations stating that Chester Brown was the foreman for another contractor, Utility Lines, Inc., and that PowerComm did not determine Randolph's work schedule or duties or sign off on his time sheets. First Kwasnik Decl. ¶¶ 19–21; Second Kwasnik Decl. ¶¶ 8–9; Salihu Decl. ¶¶ 7–11, Defs.' Randolph Summ. J. Mem. Ex. 10, ECF No. 21; Puryear Decl. ¶¶ 6–10, Defs.' Randolph Summ. J. Mem. Ex. 11, ECF No. 21. Further, Kwasnik states that PowerComm never signs off on its traffic controllers' timesheets because those controllers are supervised by Pepco or other contractors, and not by PowerComm directly. Id. ¶ 21. At one point, Randolph refused to provide PowerComm with information “related to his parole officer because he was, in his own words, ‘an independent contractor.’ ” Id. ¶ 24. Finally, Kwasnik asserts that “Randolph never worked on any PowerComm construction site.” Id. ¶ 10.

The documents introduced by Defendants show that Randolph did work in excess of forty hours per week on multiple occasions, Randolph Employee Information Report, Defs.' Randolph Summ. J. Mem. Ex. 6, ECF No. 21 (listing several pay periods in which Randolph recorded in excess of eighty hours), and Defendants admit that he was not paid for that time until at least March 2013, Defs.' Randolph Summ. J. Mem. 7. Defendants assert that, in Randolph's final pay period, his hours were adjusted upwards from seventy to 107 in order to compensate for his unpaid overtime prior to that date. Kwasnik Decl. ¶¶ 10–15.

B. Dana Brown

Dana Brown was employed as a flagger from June 2011 through December 2012. Brown Decl. ¶ 1. Sometimes she was paid as a W–2 employee, and at other times her income was reflected on 1099 forms. Id. ¶ 13. Brown avers that she worked overtime often, and typically worked twelve-hour days and in excess of forty hours in a week. Id. ¶ 13. Although she received overtime on one occasion when she was

[7 F.Supp.3d 566]

asked to work “on an emergency job,” Kwasnik, Jr. told her “that PowerComm doesn't pay overtime.” Id. ¶ 14. Brown claims that she worked an average of forty-four to forty-nine hours per week at a final wage of $9.50 per hour, and that she was not paid overtime wages for her work in excess of forty hours per week. Id. ¶ 15.

In contrast to their position with respect to Randolph, Defendants do not dispute that Brown did work for PowerComm. Kwasnik explains, “PowerComm paid [Brown] one $456.00 payment in 2012 as a W–2 for a two-week pay period, because PowerComm initially believed it was required to do so under Obamacare. However, this issue remains unresolved, and Brown thereafter demanded that she be paid as a 1099.” Third Kwasnik Decl. ¶ 3, Mem. of Points and Authorities in Support of Defs.' Mot. for Summ. J. as to Pl. Dana Brown's Individual Claims (“Defs.' Brown Summ. J. Mem.”) Ex. 9, ECF No. 35...

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