Olivo v. Crawford Chevrolet Inc., Civ. No. 10-782 BB/LFG

• Decision Date: 26 July 2011
• Docket Number: Civ. No. 10-782 BB/LFG
• Parties: DONACIANO OLIVO and CLARENCE PACHECO, Plaintiffs, v. CRAWFORD CHEVROLET INC. and CARL ROMERO, Defendants.
• Court: U.S. District Court — District of New Mexico

DONACIANO OLIVO and CLARENCE PACHECO, Plaintiffs,
v.
CRAWFORD CHEVROLET INC. and CARL ROMERO, Defendants.

Civ. No. 10-782 BB/LFG

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

Dated: July 26, 2011

MEMORANDUM OPINION

This matter comes before the Court on Defendants' motion for summary judgment (Doc. 61). Having reviewed the submissions of the parties and the relevant law, the Court finds that Defendants' motion should be DENIED in part and GRANTED in part.

Summary of Relevant Facts

Plaintiff Olivo worked for Defendant Crawford Chevrolet, Inc. at the Santa Fe Chevrolet car dealership as an autopainter. Plaintiff Pacheco worked for Defendant Crawford Chevrolet, Inc., at the same car dealership, as a bodyman. Defendant Crawford Chevrolet, Inc. employed Plaintiffs to repair collision-damaged automobiles. Defendant Carl Romero was a managerial employee of Defendant Crawford Chevrolet, Inc., and he supervised both Plaintiffs in the body shop section of the dealership.

Both Plaintiffs were paid by the job. At Crawford Chevrolet, that meant that employees were given certain assignments and were paid a set amount per assignment-regardless of the amount of time it actually took to complete the assignment. For example, Plaintiff Olivo might be given a painting assignment designated as 15 hours of work; he would be paid for 15 hours on that assignment, even if he spent more or less time on it. Supervisors, including Defendant Romero, distributed the work assignments. If no work was available, the employees had to wait

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for work. At least some of the time, employees had to wait at the body shop until new work assignments opened up.

Plaintiffs allege they were each made to wait approximately 10-15 hours each week, without pay, at the body shop between work assignments. Plaintiffs commenced this action by filing a complaint for violations of the New Mexico Minimum Wage Act, the Fair Labor Standards Act, and the New Mexico Human Rights Act in the First Judicial District Court of New Mexico. Defendants removed the case to this Court. Doc. 1.

Jurisdiction

Plaintiff brings this suit pursuant to 42 U.S.C. § 1981 and 29 U.S.C. § 201. The Court has jurisdiction over the suit pursuant to 42 U.S.C. § 1331 ("federal question"). This Court has supplemental jurisdiction over Plaintiffs' state law claims pursuant to 28 U.S.C. § 1367(a), as those claims "form part of the same case or controversy" over which this Court has original jurisdiction.

Standard of Review

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Medina v. Income Support Div., 413 F.3d 1131, 1133 (10th Cir. 2005) (quoting Fed. R. Civ. P. 56(c)). In response, the nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial."Matsushita Elec. Indus. Co. v. Zenith, 475 U.S. 574, 587-88 (1986). To avoid summary judgment, the nonmoving party may not rest upon the mere allegations in the pleadings but must show, at a minimum, an inference of the existence of each essential element of the case. Eck v. Parke, Davis & Co., 256 F.3d 1013, 1016-17 (10th Cir. 2001) (citing Hulsey v. K-Mart, Inc., 43 F.3d 555, 557 (10th Cir. 1994)). When viewing the

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evidence, the Court must draw reasonable inferences in favor of the non-moving party.

Matsushita, 475 U.S. at 587.

Discussion
Count I: New Mexico Minimum Wage Act and Fair Labor Standards Act claims

Plaintiffs allege that they were made to wait at the body shop between repair jobs and were not compensated for that time. Defendants do not deny that Plaintiffs were required to wait at the body shop between assignments, but they argue that Plaintiffs' pay for completed assignments was understood by all to compensate for waiting time as well. Defendants also argue that neither Plaintiff is protected by the New Mexico Minimum Wage Act or the Fair Labor Standards Act as they were paid on a piecework, flat rate, or commission basis and thus waiting time is not compensable. Doc. 61, p. 2.

A. New Mexico Minimum Wage Act

Plaintiffs bring Count I of their complaint in part pursuant to the New Mexico Minimum Wage Act, NMSA § 50-4-1 et seq. The Minimum Wage Act ("MWA") establishes a base rate of pay that all employers must pay to their employees. Plaintiffs allege that Defendant Crawford Chevrolet did not pay them any wage at all for the time that they "were instructed to wait on the employer's premises." Doc. 29, p. 4. Defendants counter that Plaintiffs are not covered by the MWA, because individuals "compensated upon piecework, flat rate schedules or commission basis" are not considered "employees" under the Act. NMSA § 50-4-21(C)(5).

All parties agree that Plaintiffs earned a predetermined wage per each job assignment. The parties also agree that Plaintiffs had to wait between job assignments. Plaintiffs allege and Defendants do not deny that...