Parker v. Breck's Ridge, LLC

• Decision Date: 30 September 2019
• Docket Number: Civil Action 2:17-cv-633
• Parties: GARRY PARKER, Plaintiff, v. BRECK'S RIDGE, LLC, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

GARRY PARKER, Plaintiff, v. BRECK'S RIDGE, LLC, et al., Defendants.

Civil Action 2:17-cv-633

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

September 30, 2019

JUDGE EDMUND A. SARGUS, JR.

Magistrate Judge Elizabeth P. Deavers

OPINION AND ORDER

This matter is before the Court for consideration of Defendant Breck's Paving, Inc.'s ("Breck's Paving") Motion to Decertify the Conditional Class Certification (ECF No. 61); Defendant Breck's Ridge, LLC's ("Breck's Ridge") Motion for Summary Judgment and to Decertify the Conditional Class (ECF No. 62); Breck's Paving's Motion for Summary Judgment (ECF No. 63); Named Plaintiff Garry Parker's ("Plaintiff") Responses in Opposition (ECF Nos. 67, 68, 69, 70); Defendants' Reply briefs (ECF Nos. 73 & 74); Breck's Paving's Motion for Leave to File the Supplemental Affidavits of Carl Castle, Max Laudermilt, Joel Robis, and Steven Bloxam (ECF No. 75); and Plaintiff's Motion to Strike the Affidavits of Barbara Bloxam, Carlos Medina, and Kevin Imer (ECF No. 76).

For the reasons that follow, Breck's Paving's Motion to Decertify the Conditional Class Certification is GRANTED (ECF No. 61); Breck's Ridge's Motion for Summary Judgment and to Decertify the Conditional Class is GRANTED in part and DENIED in part (ECF No. 62); and Breck's Paving's Motion for Summary Judgment is GRANTED in part and DENIED in part (ECF No. 63).

I.

A. Factual Background

Prior to its sale in 2016, Breck's Paving was an asphalt removal, repair, and installation company located in central Ohio. (Bloxam Aff. ¶ 2-3). In addition to installing driveways and parking lots for individual home owners, Breck's Paving provided services to "gas stations, churches, and other commercial entities." (Id. ¶ 3). The company "was incorporated and actively conducted business from June 29, 1995, to April 10, 2016." (Id. ¶ 2). Barbara Bloxam ("VP Bloxam") acted as the Vice President, Secretary, and Treasurer of Breck's Paving. (Id. ¶ 1). VP Bloxam's husband, Kevin Bloxam ("CEO Bloxam"), was the President. (Id.).

According to VP Bloxam's testimony, most Breck's Paving workers "did not work at the central location or a single job site." (Id. ¶ 6). Instead, work crews would clock-in at the business office in the morning, "travel and work at various and multiple job sites throughout central Ohio" during the day, and return to Breck's Paving at the end of the workday to clock-out. (Id.). VP Bloxam further testified that "[e]ach employee was required to take a 30 minute, unpaid break, each work day . . . for the safety of the employee due to summer weather, the hot asphalt, and the physical nature of the work." (Id. ¶ 7).

When calculating payroll, VP Bloxam testified that the "30 minute, unpaid break was automatically deducted from the total number of hours worked between the time the employee clocked in and the time the employee clocked out." (Id.; see also VP Bloxam Dep. 102:16-20, ECF No. 66-1). In her deposition testimony, VP Bloxam further testified:

A. A half an hour lunch is required.

Q. Okay.

A. If it's not taken, you go to a supervisor and you report when you come in—Q. Okay.

A. -that you didn't take lunch, and then it would not be deducted. It would be initialed that there was no lunch taken.

(VP Bloxam Dep. 93:16-23). In addition, VP Bloxam testified during her deposition that "[t]he company policy says you have to at least take half an hour. If [the employees], for some reason, cannot due to work or whatever, then you notify [management]." (Id. at 117:1-4).

Plaintiff worked for Breck's Paving as a dump truck driver, where he "drove a dump truck to and from jobsites delivering stone and asphalt from quarries." (Id. ¶ 14). According to Plaintiff's testimony, he was laid-off each year from January through March, and then hired back next work season. (Pl.'s Dep. 10:16-20). In August 2015, Plaintiff was promoted to Stone Foreman, "where he supervised 2 to 6 personnel including dump truck drivers and laborers." (Bloxam Aff. ¶ 14). As part of his responsibilities as Stone Foreman, Plaintiff graded driveways as a skid load operator, oversaw prep work, and ordered necessary stone materials. (Pl.'s Dep. 13:1-14:11; Bloxam Aff. ¶ 14). According to VP Bloxam, Breck's Paving "never asked [Plaintiff] to work during his 30 minute break." (Bloxam Aff. ¶ 18). Instead, VP Bloxam testified that management "consistently and frequently reinforce[d] to all . . . employees that they should not work during their 30 minute break." (Id.). Based on VP Bloxam's testimony, Plaintiff's time card was marked with "'NL' a total of 32 times: 17 from July 20, 2014, to December 12, 2014; and 15 from March 30, 2015, to December 3, 2015." (Id. ¶ 16).

During his deposition, Plaintiff testified that VP Bloxam and CEO Bloxam never asked him to work before or after clocking out. (Pl.'s Dep. 84:2-4; 97:5-10). In addition, Plaintiff testified that there was never a time when he worked overtime and did not get paid time and a half. (Id. at 100:6-12). According to Plaintiff's testimony, neither VP Bloxam nor CEO Bloxam ever told Plaintiff to work through his lunch break. (Id. at 88:21-89:2). Moreover, Plaintiff testifiedthat he was aware of Breck's Paving's mandatory lunch break policy. (Id. at 86:4-12). Although Plaintiff acknowledged that he wrote NL on this timecard "[m]aybe once," he testified that he only did so because Mr. Justus "said just put NL on there and maybe you'll get paid for it and maybe you won't." (Id. at 93:18-20 & 95:11-12). Plaintiff further testified that: (1) he was not paid for lunch when he marked NL, and (2) he never requested to have 30 minute lunch breaks credited back to his timecard. (Id. at 99:9-16; 95:23-25). Additionally, he testified that "I know other people did [mark NL] and [30 minutes] still got taken out of your day anyway." (Id. at 93:23-25).

However, Plaintiff noted that Breck's Paving maintained an open-door policy, in which employees were free to speak directly with VP Bloxam or CEO Bloxam about timecards or paychecks. Specifically, Plaintiff testified:

Q. Okay. In your experience with Breck's Paving from July of 2014 to April 10th of 2016 if you went to [CEO Bloxam] and [VP Bloxam] and said, hey, there's a mistake with my payroll, they would fix it?

A. Oh, yeah.

(Id. at 133:14-18). In addition, Plaintiff testified:

A. I've always added up my hours at the end of the week, and when I got my check, if I felt it was incorrect, then I would have let them know.

Q. How would you let them know?

A. I would walk in the office and say, look, this is what I got, this is what's on my check, can you check it for me.

Q. And what would they do?

A. They would check it.

Q. Would they fix it?

A. They would correct it.

(Id. at 132:10-22).

Plaintiff further testified that he never experienced racial discrimination while working at Breck's Paving. (Id. at 78:14-79:13). In Plaintiff's words: "[CEO Bloxam] would not allow [racial discrimination] at Breck's Paving ever." (Id. at 78:22-23). Moreover, Plaintiff testified that he never felt discriminated against or faced negative employment consequences due to his race at Breck's Paving. (Id. at 79:6-13).

1. Transfer of Ownership

On April 10, 2016, Breck's Paving "sold and completely transferred all ownership, assets, interest, and control" to Breck's Ridge pursuant to an asset purchase agreement. (Id. ¶ 12). Following the sale, Breck's Ridge continued business operations by installing and maintaining asphalt driveways—primarily for "tract home developments." (Fissel Dep. 18:8-16). According to current CEO Mark Fissel ("CEO Fissel"), the company still operates under the name Breck's Paving. (Id. at 17:22-18:7). CEO Fissel testified that when Breck's Ridge began operations in 2017, Kevin Imer ("Mr. Imer") and Rick Justus ("Mr. Justus") were promoted to co-managers of the company. CEO Fissel also testified that "[Mr. Justus] was handling all the field operations and was the superintendent over all the foremen, and [Mr. Imer] was managing the office and sales." (Id. at 23:9-15). In addition, CEO Fissel testified that "both of those two gentlemen were reporting to me." (Id. at 23:17-19).

CEO Fissel testified that Plaintiff worked as an hourly employee for roughly $20 per hour. (Id. at 36:10-17). CEO Fissel further testified that each employee was compensated for "the number of hours that he worked, which for those guys almost always are over 40." (Id. at 36:18-24). According to CEO Fissel's testimony, Breck's Ridge did not compensate employees for time clocked before 7:00 A.M. (Id. at 82:3-16). Moreover, CEO Fissel testified that Breck's Ridge continued the practice of deducting a 30 minute lunch break from employee time cards after thechange in ownership. (Id. at 51:21-52:3). CEO Fissel testified that he reiterated the lunch policy in August 2016:

I would say I was definitely aware of [the 30 minute break policy] when I came in in early August. And even at one point—I can't recall exactly—in the fall, you know, there was a question about, "Hey, should we be getting paid for lunch," so we actually posted up by the time clock, kind of, what the policy is that's expected, that everybody takes 30 minutes. And that was mainly due to safety.

(Id. at 52:20-53:3). In addition, Breck's Paving Company Policy Book dated August 31, 2016 included the following provision: "[a] one-half hour lunch break is mandatory. There will be no exception to this policy." (BR Exhibit 2, ECF No. 56-3).

CEO Fissel testified there was no written policy regarding how to report a missed or interrupted lunch break. (Id. at 57:14-20). However, CEO Fissel testified that, "we kind of had a practice that the foreman would sign off [on a missed lunch] . . . by indicating on the timecard that, you know, "my crew didn't get a lunch that day." So they'd have to initial." (Id. at 57:2-6). Moreover, CEO Fissel testified as follows:

A. If an employee worked through his meal period, it was the responsibility of the foreman to so indicate on the

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