Parry v. New Dominion Constr., Inc.

• Decision Date: 10 February 2015
• Docket Number: 14cv1115
• Parties: ENOCH W. PARRY, III, Plaintiff, v. NEW DOMINION CONSTRUCTION, INC., MICHAEL PASCUZZI, AND NICHOLAS PASCUZZI, III, Defendants.
• Court: U.S. District Court — Western District of Pennsylvania

ENOCH W. PARRY, III, Plaintiff, v. NEW DOMINION CONSTRUCTION, INC., MICHAEL PASCUZZI,AND NICHOLAS PASCUZZI, III, Defendants.

14cv1115

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

February 10, 2015

ELECTRONICALLY FILED

Memorandum Opinion on Motions for Summary Judgment

I. Introduction

This is an action brought pursuant to the Fair Labor Standards Act ("FLSA") of 1938.¹ Plaintiff alleges that he is entitled to overtime compensation under the FLSA, the Pennsylvania Minimum Wage Act of 1968, and the Pennsylvania Wage Payment and Collection Law. He seeks to recover lost wages, including overtime pay for time he allegedly worked in excess of 40 hours per week, pre- and post-judgment interest, liquidated damages, costs, compensatory and punitive damages, and attorneys' fees. Defendants, New Dominion Construction et al. (New Dominion) have filed Counterclaims alleging negligent "Damage to Equipment" and for "Recoupment of Overcompensation." Defendants have filed a Motion for Summary Judgment (doc. no. 19), with supporting documents, arguing primarily that Plaintiff's claims fail as a matter of law because he was an "exempt" employee under federal and state laws who maintained a managerial position with Defendants. Plaintiff/Counterclaim Defendant has filed a Motion for Partial Summary Judgment with supporting documentation, and a Motion toAmend his Complaint (doc. no. 23) arguing that Defendants' Counterclaim for recoupment of overpayment is baseless and was asserted in retaliation for filing this lawsuit, Defendants' Counterclaim for damage to equipment was brought for the improper purpose of retaliation against Plaintiff, and that leave shall be given to file an amended FLSA Retaliation Claim addressing Defendants' Counterclaims. After careful consideration, this Court will GRANT Defendants' Motion for Summary Judgment (on all but Retaliation Claims), will DENY Plaintiff's Motion for Partial Summary Judgment on the Retaliation Claim, and will GRANT Plaintiff leave to Amend his Complaint to allege that the Counterclaim was filed in retaliation of Plaintiff exercising his rights under the FLSA.

II. Facts

Although the parties have amassed approximately 60 pages of concise factual narrative, the Court has attempted to glean only the pertinent material facts. Unless otherwise noted, the following facts are not in dispute. See Doc. Nos. 34, 44, 47 and 48. New Dominion is a family owned and operated construction business specializing in landfill, heavy earth-moving construction, and subcontracted labor to oil and gas companies. Doc. No. 44 at ¶ 1. Brothers and co-defendants, Nicholas Pascuzzi, III and Michael Pascuzzi oversee the company's operations on a daily basis. The brothers Pascuzzi and their father, Nicholas Pascuzzi serve as the Officers of New Dominion and each own a one-third share of the company's stock. Id. at ¶ 2.

New Dominion compensates its construction managers and supervisors with a salaried compensation structure that is not weather dependent, and provides other benefits not afforded to hourly employees, including a company vehicle and health-care benefits. Construction managers who are salaried are paid the same salary whether they work more or less than 40hours per week. New Dominion, however, pays its hourly employees including laborers, equipment operators, and truck drivers for only the hours that they actually work at set rates and time and a half for overtime.

When Plaintiff originally sought a position with New Dominion as a project manager (in October 2011), it was the highest position available below the company's owners and officers. Ultimately, Plaintiff applied for and agreed to work in the lower construction management position of foreman, and New Dominion offered its "salaried compensation package," which he accepted. As a foreman, Plaintiff reported directly to a superintendent. The parties dispute whether foreman such as Plaintiff primarily manage or take exclusive direction from superintendents. Doc. No. 48 at ¶ 9.

The Daily Job Reports of New Dominion (which were the company's record of how employees and equipment were deployed on its construction projects) showed that Plaintiff was listed as a foreman on 329 of the 351 Daily Job Reports (93.7 % of the time). Id. at ¶ 35. Plaintiff contends that while the Daily Reports listed him as a foreman, the Reports do not reflect his job duties or assignments. Also, the Daily Reports are prepared by foreman, but are compiled by superintendents at least in part. Doc. No. 47 at ¶ 14. Plaintiff was issued a Purchase Order book and he made at least one purchase on behalf of New Dominion during his employment, but Plaintiff argues that he did not have authority to purchase things without direction from a superintendent. Doc. No. 48 at ¶ 38. Plaintiff conducted at least one weekly safety meeting, although Plaintiff claims the superintendent would have asked him to conduct the meeting. Id. at ¶ 39.

During and after his one and a half year employment with New Dominion, Plaintiff prepared a written description of his work experience at New Dominion (on his LinkedIn profileand resume) and represented himself as a "construction supervisor," "assistant superintendent," and "lead supervisor," although Plaintiff argues that his job experience at New Dominion was not commensurate with those titles. Id. at ¶ 44. Plaintiff also testified during a Workers Compensation proceeding that he was a "foreman, supervisor." Doc. No. 44 at ¶ 13. Plaintiff described himself as a working foreman, who reported to a superintendent. Doc. No. 48. at ¶ ¶ 9 and 11.

On March 8, 2013, his fifth day on a work assignment at Godwin Pump Project, a supervisor at New Dominion's client, Godwin, instructed New Dominion to remove Plaintiff from the project. Plaintiff agrees that he was told to leave, but it also was the same day he allegedly complained to a Godwin supervisor that he was a salaried employee working well in excess of 50 hours per week doing laborer tasks. After a several week layoff, New Dominion assigned Plaintiff to a crushing operation in Imperial, Pennsylvania known as the BFI project, where Plaintiff worked for approximately two weeks (April 15, 2013 through April 29, 2013). Doc. No. 44 at ¶¶ 55-56.

On April 29, 2013, within approximately 20 minutes after Plaintiff caused a collision damaging a loader owned by New Dominion, Nicholas Pascuzzi, III terminated Plaintiff's employment while Mr. Pascuzzi was on site. Id. at ¶ 57. The basis for Plaintiff's discharge, according to Mr. Pascuzzi, was that Plaintiff had been a poor construction manager, had been caught and removed by New Dominion's client from a job for leaving the job site without authorization, and had caused damage to New Dominion's construction equipment. Five months after Plaintiff was terminated, on October 10, 2013, via a counseled demand letter, Plaintiff then complained to New Dominion over not receiving overtime compensation. Plaintiff testified that he has "no idea" of whether Mr. Pascuzzi had heard of any allegedcomplaint of Plaintiff regarding overtime before he was terminated, but the same day he complained about overtime to the supervisor at Godwin Pumps Project, Michael Pascuzzi told him "he did not expect [Plaintiff] to cause trouble." Id. at ¶ 65.

Defendants filed Counterclaims against Plaintiff and after Plaintiff filed this lawsuit, New Dominion sought the repair estimate for the damage to the loader. Doc. No. 48 at ¶ 27-28. The amount of the repair estimate was approximately $12,469.10. Prior to Plaintiff filing this lawsuit, New Dominion never had asserted a claim for damages or set off against any employee nor required an employee to pay for damages. Doc. No. 48 at ¶ 31. Michael Pascuzzi however testified that going forward, the policy will be "if you make a mistake and bang up my equipment, you are going to start to pay for it." Doc. No. 48 at ¶ 30. Another New Dominion employee, Keith Diamond, damaged a company truck in a DUI accident and was not required to pay for damage to the truck, although Defendants contend that he lost benefits/compensation. Doc. No. 48 at ¶ 32.

III. Summary Judgment Standards

"Rule 56 of the Federal Rules of Civil Procedure 'mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.'" Marten v. Godwin, 499 F.3d 290, 295 (3d Cir. 2007), citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). 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." Woodside v. Sch. Dist. of Philadelphia Bd. of Educ., 248 F.3d 129, 130 (3d Cir. 2001), quotingFoehl v. United States, 238 F.3d 474, 477 (3d Cir. 2001) (citations omitted). An issue of material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Doe v. Abington Friends Sch., 480 F.3d 252, 256 (3d Cir. 2007) ("A genuine issue is present when a reasonable trier of fact, viewing all of the record evidence, could rationally find in favor of the non-moving party in light of his burden of proof."), citing Anderson and Celotex Corp. In deciding a summary judgment motion, a court must view the facts in the light most favorable to, draw all reasonable inferences, and resolve all doubts, in favor of the nonmoving party. Doe v. County of Centre, PA, 242 F.3d 437, 446 (3d Cir. 2001); Woodside, 248 F.3d at 130; Heller v. Shaw Indus., Inc. , 167 F.3d 146, 151 (3d Cir. 1999). Further, the court must not engage in credibility...