Tyler v. JP Operations, LLC

• Decision Date: 20 September 2018
• Docket Number: Case No. 1:16-cv-01478-TWP-DLP
• Citation: 342 F.Supp.3d 837
• Parties: Andrew TYLER, Plaintiff, v. JP OPERATIONS, LLC d/b/a Jack's Pizza, Inc., Defendant.
• Court: U.S. District Court — Southern District of Indiana

342 F.Supp.3d 837

Andrew TYLER, Plaintiff,

v.JP OPERATIONS, LLC d/b/a Jack's Pizza, Inc., Defendant.

Case No. 1:16-cv-01478-TWP-DLP

United States District Court, S.D. Indiana, Indianapolis Division.

Signed September 20, 2018

Ronald E. Weldy, Weldy Law, Indianapolis, IN, for Plaintiff.

Hannah Lee Meils, Tiffany Lynn Gooden, Todd J. Kaiser, Ogletree Deakins Nash Smoak & Stewart, P.C., Jaclyn Susan Gessner, Nathan A. Baker, Barnes & Thornburg LLP, Indianapolis, IN, for Defendant.

ENTRY ON CROSS-MOTIONS FOR PARTIAL SUMMARY JUDGMENT

TANYA WALTON PRATT, JUDGE, United States District CourtBefore the Court are the parties' cross-motions for partial summary judgment. Plaintiff Andrew Tyler, ("Tyler"), initiated this action against his former employer, Defendant JP Operations, LLC d/b/a Jack's Pizza, Inc., ("Jack's"), for unpaid wages and the failure to pay minimum wage for hours worked while working as a pizza delivery driver. On October 24, 2017, Jack's filed its Motion for Partial Summary Judgment (Filing No. 62), and on December 13, 2017, Tyler filed his Cross-Motion for Partial Summary Judgment (Filing No. 70). For the following reasons, the Court grants in part and denies in part Jack's Motion for Partial Summary Judgment, and grants in part and denies in part Tyler's Cross-Motion for Partial Summary Judgment.

I. BACKGROUND

This case arises out of a wage dispute involving Tyler's time working for Jack's as a part-time pizza delivery driver. JP Operations, LLC operates Jack's, a chain of pizza stores in central Indiana. (Filing No. 64-3.) Tyler worked primarily at the store located at 8025 Pendleton Pike, Lawrence, Indiana 46226 (the "Pendleton Pike store") from approximately August 6 to December 23, 2013, and was subsequently transferred to the store located at 5650 East 86^th Street, Indianapolis, Indiana 46240 (the "Castleton store"), where he worked from January 9 to May 10, 2014. (Filing No. 64-1 at 21; Filing No. 64-3 at 1.)¹ Both stores were open 4:00 p.m. until 11:00 p.m., Sunday through Thursday. On Friday and Saturday, the business hours for the Pendleton Pike store was 4:00 p.m. until 1:00 a.m., and the Castleton store hours were from 4:00 p.m. until 12:00 a.m. (Filing No. 64-3 at 2). The Pendleton Pike store used a computer-based point-of-sale system ("POS") to enter customer order details including the delivery address and assigned pizza delivery driver. (Filing No. 64-14 at 31.) Because the Castleton store did not have a POS system, all orders were recorded on paper. Id. at 23.

Tyler's base rate of pay was $7.25 per hour. (Filing No. 64-3 at 3.) Tyler's supervisor, Ryan Johnson ("Johnson"), recorded Tyler's clock-in and clock-out times while Tyler was employed at the Pendleton Pike store. (Filing No. 64-1 at 38.) For several shifts, Tyler initialed completed timesheets, prepared by Johnson, verifying that the timesheet was accurate. (Filing No. 64-1 at 82-84.) Tyler did not keep track of his own log of hours. Id. at 24. The Castleton store had actual timesheets that Tyler initialed each and every shift.² Id. at 32. Tyler testified that he closed the Pendleton Pike store almost every shift he worked, which caused him and Johnson (closing manager) to leave the store close to midnight or shortly thereafter at the end of Tyler's shifts. Id. at 35. The closing duties included: washing dishes, taking out the trash, sweeping and mopping the floor, and folding boxes if needed. Id. at 45. Tyler testified that it would take an hour or more to perform all of the closing tasks. Id. A sample of Tyler's clock out times for certain dates where he alleges that he was not paid for all of his hours is included below:

   a.     Tuesday       8-6-13       11:30 p.m
                   b.     Tuesday       8-27-13      11:35 p.m
                   c.     Monday        9-9-13       11:10 p.m
                   d.     Monday        9-16-13      11:35 p.m
                   e.     Wednesday     9-18-13      11:30 p.m
                   f.     Monday        9-23-13      11:25 p.m.
                   g.     Wednesday     10-2-13      11:10 p.m.
                   h.     Monday        10-7-13      11:30 p.m.
                   i.     Monday        10-14-13     11:20 p.m.
                   j.     Wednesday     10-16-13     11:10 p.m.
                   k.     Wednesday     10-23-13     11:10 p.m.
                   l.     Monday        10-28-13     11:20 p.m.
                   m.     Wednesday     10-30-13     11:15 p.m.
                   n.     Tuesday       11-5-13      11:00 p.m.
                

(Filing No. 71 at 4-5). Most of Tyler's closing shifts were worked with Johnson. On such days Johnson's timesheets reflect the same clock-out times as Tyler's. (Filing No. 64-3 at 3.) Tyler's timesheets for both the Pendleton Pike store and Castleton store reflect that 696.16 hours were recorded and paid to him. Id.

In addition to Tyler's base hourly rate, he also received reimbursements for driving expenses ("Driver's Fees") which was calculated based on the following formula: "for each order a driver delivered, the driver received $1.25 + 3% of the order total (pre-tax)". Id. at 5. Jack's maintained a policy that it would not deliver an order if the order total was less than $15.00, thus based on the calculation ($1.25 + [0.03 * $15.00] ), a driver would receive at least $1.70 on each order. Id. The store manager on shift calculated the Driver's Fee reimbursements at the end of each shift. The Pendleton Pike store manager used the POS system, which printed out an account report that showed the total order amount for each driver, to calculate and pay Driver's Fees. Id. at 42. Because the Castleton store did not have a POS system, the store manager used a paper form called a Driver Checkout sheet to calculate Driver's Fees. Id. at 61. As an example, on August 21, 2013, Tyler delivered three orders totaling $103.23, and based on the Driver's Fee calculation he received $6.59 in Driver's Fees. (Filing No. 64-3 at 5.) Tyler earned a total of $1,520.97 in Driver's Fees during his employment at both store locations. The parties disagree on the total mileage driven by Tyler as a delivery driver, however the disagreement is de minimis as it is a seventy mile difference. Tyler's calculation for total mileage, for the Pendleton Pike store, is 2,416.4 miles derived from Tyler's counsel using Mapquest.com and customer's addresses round-trip miles, while Jack's figure is approximately 2,346.40 derived from the POS system. (Filing No. 70-2 at 1; Filing No. 64-3 at 4.) It is undisputed that Tyler was paid $866.17 total in Driver's Fees from the Pendleton Pike store; however, based on the different total mileage calculations, Tyler alleges Jack's mileage rate actually paid to him equals $0.36 per mile, while Jack's calculation equals $0.37 per mile. (See Filing No. 71 at 6; Filing No. 63 at 6.)³

II. LEGAL STANDARD

Summary judgment is only appropriate by the terms of Rule 56 where there exists "no genuine issue as to any material facts and ... the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56. This notion applies equally where, as here, opposing parties each move for summary judgment in their favor pursuant to Rule 56. I.A.E., Inc. v. Shaver , 74 F.3d 768, 774 (7th Cir. 1996). Indeed, the existence of cross-motions for summary judgment does not necessarily mean that there are no genuine issues of material fact. R.J. Corman Derailment Serv., Inc. v. Int'l Union of Operating Eng'rs , 335 F.3d 643, 647 (7th Cir. 2003). Rather, the process of taking the facts in the light most favorable to the non-movant, first for one side and then for the other, may reveal that neither side has enough to prevail without a trial. Id. at 648. "With cross-motions, [the court's] review of the record requires that [the court] construe all inferences in favor of the party against whom the motion under consideration is made." O'Regan v. Arbitration Forums, Inc. , 246 F.3d 975, 983 (7th Cir. 2001) (quoting Hendricks-Robinson v. Excel Corp. , 154 F.3d 685, 692 (7th Cir. 1998) ).

A court is not permitted to conduct a paper trial on the merits of a claim and may not use summary judgment as a vehicle for resolving factual disputes. Ritchie v. Glidden Co., ICI Paints World-Grp. , 242 F.3d 713, 723 (7th Cir. 2001) ; Waldridge v. Am. Hoechst Corp. , 24 F.3d 918, 920 (7th Cir. 1994). Indeed, a court may not make credibility determinations, weigh the evidence, or decide which inferences to draw from the facts. Payne v. Pauley , 337 F.3d 767, 770 (7th Cir. 2003) ("these are jobs for a factfinder"); Hemsworth v. Quotesmith.Com, Inc. , 476 F.3d 487, 490 (7th Cir. 2007). Instead, when ruling on a summary judgment motion, a court's responsibility is to decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial. Id.

III. DISCUSSION

A. Tyler's Declaration

Tyler designates his Affidavit as part of his Response in Opposition to Summary Judgment which contains a paragraph stating: "I made a mistake in my deposition testimony when I testified that I drove my car, the 2002 Mercury Marquis, for my other job at Central Insulation. See (Deposition p. 23:4-12). I drove my truck, the 2001 Mazda Tribute, for both my jobs at Central Insulation and Jack's." (Filing No. 70-1 at 1). Jack's requests that this Court disregard this portion of the Affidavit, as it improperly contradicts Tyler's prior deposition testimony that he drove different cars for both jobs. (See Filing No. 64-1 at 22-23; Filing No. 74 at 6.) The Court agrees on this point. "It is a well-settled rule of this Court that a plaintiff cannot create an issue of material fact merely by manufacturing a conflict in his own testimony by submitting an affidavit that contradicts an earlier deposition." Piscione v. Ernst & Young, L.L.P., 171 F.3d 527, 532 (7th Cir. 1999) (citations omitted). Because Tyler's expert report relies on a vehicle expense calculation based on Tyler driving the same car to both jobs, Jack's also contends that this proves that the expert report is unreliable.⁴ (Filing No. 74 at 9.) Tyler responds that the Affidavit was submitted to clarify the mistaken testimony...