Tierney v. Halls Ferry Pizza, Inc.
| Docket Number | 4:21CV828 JAR |
| Decision Date | 23 August 2023 |
| Parties | JOSEPH TIERNEY, Plaintiff, v. HALLS FERRY PIZZA, INC., Defendant. |
| Court | U.S. District Court — Eastern District of Missouri |
This matter is before the Court on Plaintiff Joseph Tierney's Motion for Summary Judgment [ECF No. 77]. Defendant Halls Ferry Pizza, Inc., filed its response in opposition to Plaintiff's Motion. This matter is fully briefed and ready for disposition. For the reasons set forth below Plaintiff's Motion for Summary Judgment will be granted in part and denied in part.
On July 9, 2021, Plaintiff Joseph Tierney filed this action for violations of overtime pay under the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-219, and the Missouri Minimum Wage Law (MMWL), Mo. Rev. Stat. §§ 290.500 et seq., against Defendant Halls Ferry Pizza, Inc., which owns and operates an Imo's Pizza franchisee store in St Louis, Missouri. Plaintiff alleges that while he was employed by Defendant as a pizza delivery driver, Defendant failed to pay him the required minimum wage and overtime pay, failed to accurately make and maintain records of delivery drivers' hours worked, and failed to reimburse him for vehicle/mileage expenses.
Plaintiff filed the instant motion seeking summary judgment on issues regarding the number of hours he worked for Defendant overtime and minimum wage pay, FSLA's “tip credit” application, vehicle/mileage reimbursement as wages, statute of limitations, and liquidated damages. Plaintiff attached a Statement of Material Facts to his Motion, which Defendant responded to and noted its oppositions. Defendant filed its response in opposition. Defendant filed a Statement of Additional Uncontroverted Material Facts, which Plaintiff responded to and noted his oppositions. The parties each attached exhibits with their respective memoranda.
The following facts are taken from Plaintiff's Statement of Material Facts [ECF No. 78] and Defendant's Statement of Additional Uncontroverted Material Facts [ECF No. 85] and are undisputed, unless otherwise noted:
Defendant operates a single Imo's Pizza franchisee store, located at 1192 Riverview Boulevard in St. Louis, Missouri. Yuriy Ostrovskiy is Defendant's President and directly manages the store when present. Ostrovskiy has managers who are in charge of other employees, but these managers in turn report to him. Ostrovskiy makes all hiring and firing decisions, as well as scheduling decisions. Ostrovskiy determines payroll which he does on a weekly basis, and he is responsible for his own human resources matters.
It is undisputed between the parties that Plaintiff was a covered, non-exempt employee of Defendant and Defendant was similarly Plaintiff's employer.[1]Plaintiff's duties as a pizza delivery driver for Defendant was to deliver the customers' orders, collect money, and drive back using his personal vehicle. The drivers are required to have licensed and insured vehicles.
Defendant has never provided any of its own vehicles to its drivers. Defendant did not track or record automobile expenses incurred by drivers during the statutory period.
Ostrovskiy made the schedules for Defendant's employees by placing it on a clipboard. A schedule of 10 A.M. to 10 P.M. or 10 A.M. to 5 P.M. was a typical shift for the drivers. The store usually opened before 11 A.M. Employees could request off or make other scheduling requests, and Ostrovskiy would make notes if they were late or missed a day on the schedule. Ostrovskiy kept track of the drivers' time by their schedule. Ostrovskiy kept this scheduling paperwork for some period of time and then shredded it. No schedules were located at the office for the statutory period here.
Since 2017, Defendant has paid payroll to drivers on a weekly basis. Prior to November 6, 2019, drivers were paid $2.50 per delivery plus tips. On November 6, 2019, this was changed to $3.00 per delivery plus tips. At all points during the statutory period, drivers who took multiple deliveries on one trip were paid those amounts for each delivery. Defendant has always reimbursed drivers separately for second and/or third deliveries on the same trip and for “unsuccessful” deliveries (e.g., deliveries in which the customer was not home, did not pay, etc.) during the statutory period.
Defendant did not track actual mileage driven by its drivers. Defendant paid $15 per shift plus $1 per delivery to compensate for mileage/automobile expenses during most of the statutory period. The methodology was developed by Ostrovskiy to ensure drivers were paid at least 2.5 miles per delivery.
During their shift, drivers would sign in on the computer to take their first delivery through the Firefly/Thrive Point-of-Sale system. These first clock-ins to get their first pizza would be reflected on the driver ticket reports produced by Thrive. The driver ticket report reflects when a driver returned from his/her last delivery before being paid out and leaving. The driver ticket reports show when the orders are placed, when the drivers leave, and when they come back.
The Driver Ticket Report columns are depicted below [ECF No. 78-6 at 8]
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Another report, the Driver Performance Report, shows the total number of deliveries, fees, and tips. Cash tips collected by drivers are not reflected on this report.
Defendant's secretary, Maria Clark, testified by deposition as the designated corporate representative for Defendant and discussed its Delivery Performance Report for 12/24/2018 to 12/30/2018, as depicted below [ECF No. 78-5 at 1]:
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The first column has the name of the drivers. “Total Delivery” shows the total number of deliveries performed during the week by the driver. The “Total Fee” is 2.50 times the “Total Delivery” number. The “Total Trips” are the amount of times the delivery driver left the store, including the number of deliveries they took with them on each trip. The “Total Tips” reflect the total credit card tips for the week, not counting cash tips.
In a given week, Plaintiff received a paycheck, and separately he was paid for delivery charges and tips. These components comprised his total compensation. Ostrovskiy created the reimbursement methodology that forms the amount paid on the paycheck to Plaintiff.
Plaintiff's pay stub for the same week discussed above, 12/24/2018 to 12/30/2018, is depicted below [ECF No. 78-4 at 25]:
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Clark testified to the contents of this pay stub in detail, as summarized below:
At the top it shows Plaintiff's name, Joseph Tierney, and shows a pay period of 12/24/2018 to 12/30/2018. There is a section called “Earnings and Hours,” and below that, a category called “Driver Hourly.” The quantity reflects 32.50 at a $6.00 rate, which equals $195. However, Plaintiff was not paid this $195 in hourly wages for that week because he was paid nightly for delivery charges and tips. The number 32.5 was manually generated into this pay stub by Ostrovskiy using the schedule. Clark stated that she had no explanation for small variances in the hours reflected on the paystubs. Clark does not know how Ostrovskiy was arriving at the .25 or .5 portions of an hour for the pay stubs. She does not know how Ostrovskiy was adding up the week exactly, but he told her that he didn't have them clock in. Ostrovskiy used the schedules to determine the drivers' hours.
The next line, “tips,” goes across to current and shows $111.70. Clark noted that the total tips for Plaintiff on the Delivery Performance Report for the same week shows $34.48. Clark explained that these numbers are different between the pay stub and the Driver Performance Report simply because Ostrovskiy put a different number on there, and he put a different number for the delivery fees too. The $497.50 doesn't match the $195. The number $111.70 on the pay stub was derived or created, because Ostrovskiy thought he was following the franchise guidelines and put minimum wage at $6.00 an hour for their part for their hourly and less than whatever the rate was back then in tips. He put more in tips than the real tips that Plaintiff received, and he put less than Plaintiff actually collected in fees. Clark speculated that the number Ostrovskiy made up to put there has something to do with the hours he put on there, so that it would come up to at least minimum wage at that time. Thrive's actual amounts that Plaintiff took home doesn't match what Ostrovskiy put on the QuickBooks pay stub. The $111.70 figure is a made-up number that was not actually paid to the driver.
The total tax amount reflected in the pay stub is -$52.54. The company paid this amount into Social Security, Federal Withholding, Medicare, Missouri, and Clark handles those payments.
The next part of the pay stub says “Adjustments to Net Pay” and there's a “Tip and Hourly Deduction.” On this pay stub, it shows the number -306.70. This number is created by adding the driver hourly, which here is $195, and the tips, $111.70, which is $306.70. The driver did not actually take that amount home. This is just listed on the paycheck to be able to pay taxes out of the driver's pay. The number -306.70 represents essentially cancels out of the driver hourly and tips that's shown up in the columns above that.
The next line states “Vehicle Reimbursement,” which reflects the amount of $323.64 for this pay period. Lastly, there's a Net Pay that is $271.10. This was the amount paid to the driver out of the company's bank account after deducting taxes. That amount was sent to Plaintiff as check number 2242.
Referring back to the Driver Performance Report for this same week, it reflects that total fees were $497.50, plus $34.48 for...
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