Pietrzycki v. Heights Tower Serv., Inc.

Decision Date29 November 2017
Docket NumberNo. 14 C 6546,14 C 6546
Citation290 F.Supp.3d 822
Parties Jason PIETRZYCKI, on behalf of himself and all other plaintiffs similarly situated, Plaintiff, v. HEIGHTS TOWER SERVICE, INC., and Mark Motter, Defendants.
CourtU.S. District Court — Northern District of Illinois

John C. Kunze, Kimberly A. Hilton, David J. Fish, The Fish Law Firm, Naperville, IL, for Plaintiff.

Douglas P. Holthus, Pro Hac Vice, Mazanec, Raskin & Ryder Co., LPA, Columbus, OH, Michael H. McColl, Foran, Glennon, Palandech Ponzi & Rudloff PC, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

Jeffrey T. Gilbert, Magistrate Judge

Plaintiff Jason Pietrzycki ("Pietrzycki"), on behalf of himself and others similarly situated, has sued Defendant Heights Tower Service, Inc. ("HTS") and Defendant Mark Motter ("Motter") (collectively, "Defendants") for allegedly underpaying some of HTS's employees for overtime in violation of the Illinois Minimum Wage Law ("the IMWL"), 820 ILL. COMP. STAT. §§ 105/1 et seq. , and the Fair Labor Standards Act ("the FLSA"), 29 U.S.C. §§ 201 et seq. Second Amended Complaint, [ECF No. 74]. The Court has certified a class under Federal Rule of Civil Procedure 23 for the IMWL claim and a collective action under 29 U.S.C. § 216(b) for the FLSA claim. Memorandum Opinion and Order, [ECF No. 108]; Pietrzycki v. Heights Tower Serv., Inc. , 197 F.Supp.3d 1007 (N.D. Ill. 2016). Throughout this Memorandum Opinion and Order, the Court will refer collectively to the class members and the collective action members as "Plaintiffs."

This matter is now before the Court on three motions. The parties have filed cross-motions for summary judgment. Plaintiffs' Motion for Summary Judgment ("Plaintiffs' SJ Motion"), [ECF No. 132]; Defendants' Motion for Summary Judgment ("Defendants' SJ Motion"), [ECF No. 142]. Defendants also have filed a motion to decertify the Rule 23 class action and the FLSA collective action. Defendants' Second Amended Motion to Decertify the FLSA Collective Action and Motion to Decertify the Rule 23(a) Class Action ("Defendants' Motion to Decertify"), [ECF No. 140]. The parties have briefed these motions and the Court heard oral argument. For the reasons stated below, Plaintiffs' Motion for Summary Judgment [ECF No. 132] is denied, Defendants' Motion for Summary Judgment [ECF No. 142] is denied, and Defendants' Motion to Decertify [ECF No. 140] is denied. As the Court notes throughout this Memorandum Opinion, the record developed by the parties in discovery—or at least the record as presented in support of the parties' respective motions—is not adequate to justify granting any of the motions now before the Court.

I. BACKGROUND
1. Background Facts

HTS services cellular communication towers ("towers"). Plaintiff's Statement of Undisputed Material Facts in Support of His Motion for Summary Judgment ("Plaintiffs' SoF"), [ECF No. 134], ¶ 4; Defendants' Statement of Undisputed Material Facts in Support of Their Motion for Summary Judgment ("Defendants' SoF"), [ECF No. 143], ¶ 3. Motter is HTS's president and sole owner. Plaintiffs' SoF, [ECF No. 134], ¶ 2. Plaintiffs are current and former foremen and tower technicians employed by HTS and Motter. Id. ¶¶ 1, 2; Defendants' SoF, [ECF No. 143], ¶ 1.

Typically, HTS sends a four-person crew consisting of one foreman and three tower technicians to work on each tower. Defendants Heights Tower Service, Inc. and Mark Motter's Memorandum of Law in Support of Collective Action Decertification and in Opposition to Plaintiff's Motion for Class Certification ("Defendants' Prior Decertification Brief"), [ECF No. 94], at 8. At the tower, foremen and tower technicians install, repair, upgrade, and maintain towers and related equipment. Defendants' SoF, [ECF No. 143], ¶ 3; Pietrzycki , 197 F.Supp.3d at 1012. Foremen also are responsible for assigning work, supervising tower technicians, and tracking the work performed. Pietrzycki , 197 F.Supp.3d at 1012. The differences between the roles of foreman and tower technician are not material to the resolution of the motions now before the Court. To save a few words, the Court will refer to foremen and tower technicians as "employees" (or "employee," as appropriate).1

To record how much time employees work in a given week, HTS relies on foremen to fill out daily activity reports ("DARs") for their respective crews. Plaintiffs' SoF, [ECF No. 134], ¶ 16; Defendants' SoF, [ECF No. 143], ¶ 20. A DAR reports each crew member's start time, end time, "work hours," and "travel hours." Plaintiffs' SoF, [ECF No. 134], ¶¶ 17–19; Sample DAR, [ECF No. 134–5]. HTS then collects the information recorded in the DARs and uses it to prepare Employee Job Detail Reports, Timecard Lists, and Payroll Stubs. Plaintiffs' SoF, [ECF No. 134], ¶ 20.

HTS services towers in at least seven states, Illinois, Ohio, Wisconsin, Kentucky, Pennsylvania, Georgia, and South Dakota. Plaintiffs' SoF, [ECF No. 134], ¶ 7; Defendants' SoF, [ECF No. 143], ¶ 6. Most of HTS's business is concentrated in the first three states, which collectively accounted for 97% of its business in 2014. Plaintiffs' SoF, [ECF No. 134], ¶ 7; Defendants' SoF, [ECF No. 143], ¶ 6. HTS has warehouses in Yorkville, Illinois, and Mount Vernon, Ohio. Defendants' Prior Decertification Brief, [ECF No. 94], at 7. HTS's employees reside in Illinois, Ohio, Wisconsin, and Michigan. Id. at 8. To get to or from a tower on a given day, employees may have to travel a significant distance. Plaintiffs' SoF, [ECF No. 134], ¶ 10.

This case has to do with the time that employees spend traveling to and from towers. Employees' travel options can be broken into two categories. First, employees are allowed to arrange their own transportation if they want to do so. Defendants' SoF, [ECF No. 143], ¶ 5; see also Plaintiffs' Combined Reply in Support of Their Motion for Summary Judgment and in Response to the Defendants' Motion for Summary Judgment ("Plaintiffs' Combined Brief"), [ECF No. 147], at 3. Typically, this involves driving a personal vehicle or riding in another crew member's personal vehicle. Alternatively, HTS provides a free transportation option, allowing a crew's members to travel in an HTS-owned truck ("HTS truck") to and from their tower. See Plaintiffs' SoF, [ECF No. 134], ¶¶ 6, 11; Defendants' SoF, [ECF No. 143], ¶¶ 5, 7. One member of the crew, typically the foreman, drives the HTS truck and all other crew members who opt to travel in the HTS truck ride as passengers. If employees want to travel in an HTS truck, HTS requires them to meet at a designated location—normally an HTS warehouse at the start of the day—by a certain time. See Defendants' Memorandum of Law in Support of Their Motion for Summary Judgment ("Defendants' Opening SJ Brief"), [ECF No. 144], at 6; Defendants' Reply in Support of Their Motion for Summary Judgment ("Defendants' SJ Reply"), [ECF No. 156], at 7 n.3. It seems that employees usually choose to travel in an HTS truck and only infrequently arrange to travel in a personal vehicle.2 Plaintiff's SoF, [ECF No. 134], ¶ 6.

In approximately 2012, HTS decided to implement the travel time compensation arrangement at issue in this case by paying $10 per hour for travel hours (the "Drive Time Rate"). See id. ¶¶ 8, 10; Defendants' SoF, [ECF No. 143], ¶¶ 7, 13. HTS took this step so that it could remain compensation-competitive and attract employees. Plaintiffs' SoF, [ECF No. 134], ¶ 9; Defendants' SoF, [ECF No. 143], ¶ 12. HTS and Motter intended the new arrangement to be a uniform policy applied in a consistent manner. Defendants' SJ Reply, [ECF No. 156], at 2; see also Defendants' Motion to Decertify, [ECF No. 140], at 14 (stating "Defendants expected one application on [sic] the Drive Time [Rate]").

Under HTS's new plan, employees should receive at least some compensation for all of the time that they spend traveling in an HTS truck. Time spent driving an HTS vehicle should be recorded as normal work hours. Defendants' Motion to Decertify, [ECF No. 140], at 12. Time spent riding as passengers normally should be recorded as travel hours. Id. at 9. Passengers' time should be recorded as normal work hours, though, if the passengers perform work in the truck while traveling. Defendants Heights Tower Service, Inc. and Mark Motter's Reply in Support of Their Second Motion to Decertify the FLSA Collective Action and Motion to Decertify the Rule 23(a) Class Action ("Defendants' Decertification Reply"), [ECF No. 152], at 3–4, 9. Passengers' time also should be recorded as normal work hours if they perform what Defendants call "substantial" work before getting in the truck at the start of the day or after exiting it at the end of the day. Id. Even under this new compensation arrangement, the time that employees spend traveling in personal vehicles—regardless of whether the employees drive or ride as passengers—should not be recorded as either work hours or travel hours. Defendants' Motion to Decertify, [ECF No. 140], at 9; see also id. at 12.

The parties dispute whether HTS consistently paid the Drive Time Rate in accordance with this plan. Plaintiffs say HTS largely followed it except that HTS also usually recorded the time spent traveling in personal vehicles as travel hours. Defendants, however, claim foremen distorted HTS's intended policy by recording "travel hours" on DARs in a haphazard and inconsistent manner. The Court will address this dispute—including whether it presents a genuine issue of material fact within the meaning of Federal Rule of Civil Procedure 56 —later in this Memorandum Opinion.

The parties agree that HTS treated all time that it recorded as travel hours and paid at the Drive Time Rate in a consistent manner when calculating how much overtime compensation to pay employees. When determining how many hours employees worked in a given week, HTS excluded all time that was recorded as travel hours and paid at the Drive Time Rate. Plaintiffs' SoF, [ECF No. 134], ¶ 21; Defendants' SoF, [ECF No....

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