Wade v. Werner Trucking Co.

• Decision Date: 18 March 2014
• Docket Number: Case No. 2:10-cv-270
• Parties: MALCOLM WADE, individually and on behalf of all others similarly situated, Plaintiffs, v. WERNER TRUCKING CO. a/k/a WERNER ENTERPRISES, INC., Defendant.
• Court: U.S. District Court — Southern District of Ohio

MALCOLM WADE, individually and on behalf of all others similarly situated, Plaintiffs, v. WERNER TRUCKING CO. a/k/a WERNER ENTERPRISES, INC., Defendant.

Case No. 2:10-cv-270

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

DATE: March 18, 2014

JUDGE SARGUS

Magistrate Judge Abel

OPINION AND ORDER

This case is before the Court on cross motions for summary judgment (Docs. 122, 123). Defendant's motion to dismiss opt-in plaintiffs who failed to respond to discovery (Doc. 112), and Plaintiffs motion to strike affidavits (Doc. 135). For the reasons that follow. Plaintiffs' motion to strike is DENIED, Plaintiffs' motion for summary judgment is GRANTED in part and DENIED in part. Defendant's motion for summary judgment is GRANTED in part and DENIED in part, and Defendant's motion to dismiss is DENIED.

I. INTRODUCTION & POSTURE

Defendant, Werner Enterprises, Inc., is a trucking company. (Doc. 121, Ex. 8, Dittberner Depo. at 9:2-9:6). In Werner's hierarchy, truck drivers are the line employees. Id. at 23:8-23:9. Overseeing the truck drivers are fleet coordinators. Id. at 23:6-23:7. Parallel with fleet coordinators are fleet managers; the only significant difference between the two is that fleet coordinators work the night shift. (Doc. 121, Ex. 1, Andresen Depo. at 29:19-29:24). Above fleet coordinators and managers are dedicated managers and supervisors, then directors, and thenvice presidents. (Doc. 121, Ex. 8, Dittberner Depo. at 22:12-23:21). Werner also has two faces to its business - a dedicated side that has employees who only deal with a single large customer and an operations side or asset side that hauls a variety of different customers* loads. (Doc. 121. Ex. 16, Welton Depo. at 8:17-8:21). This lawsuit concerns fleet coordinators and fleet managers on both sides of the business.

Plaintiff, Malcolm Wade, brings suit on his own behalf and on behalf 111 of his fellow current and former fleet coordinators and fleet managers.¹ He alleges that Werner violated the Fair Labor Standards Act (FLSA) and Ohio Minimum Fair Wage Standards Act (OMFWSA) when it failed to pay him and his fellow plaintiffs overtime wages for hours worked by them in excess of 40 per week. (Doc. 30, Amend. Compl. in passim); see also, e.g., 29 U.S.C. § 207 (2012); Ohio Rev. Code § 4111.03 (2007). Plaintiffs all claim (and Werner does not dispute)² that they generally worked in excess of 40 hours per week.³ See infra pp. 4-13. Yet. Wernernever paid any sort of overtime to the Plaintiffs because Werner believed them to be exempt employees under the acts. (Doc. 121, Ex. 13, Polenz Depo. at 25:19-26:5). Hence, Plaintiffs' case succeeds or fails based on their classification - exempt or not.

In order to classify the employees, the Court must determine what the record shows about what tasks were performed for Werner by Plaintiffs in their roles of fleet coordinator/manager. The Court is required to ascertain whether that issue is genuinely in factual dispute and, if not. whether there is a clear enough answer about what tasks Plaintiffs performed to enable the Court to decide whether, as a matter of law, they are exempted from the FLSA and OMFWSA. Accordingly, a detailed review of the evidence before the Court is necessary.⁴

Plaintiffs have taken the position that the evidence before the Court is representative of the whole and that a summary judgment decision as to one should be the decision as to all. (Doc. 122, P. Mot. for SMJ at 2 n.2). Though it appears that the Plaintiffs share a number of significant commonalities which may ultimately make Plaintiffs, or a subset thereof, suitable for trial as a class, the summary judgment record presented here does not prescribe a monolithic result that could legitimately be applicable to all class members. Because of this, and because deciding the exemption questions presented requires a detailed record, the Court will not, at this juncture, decide summary judgment as to plaintiffs who have not been deposed and regarding whom there is little evidence in the record.⁵ The summary judgment decision announced herein.therefore, only applies to the 10 Plaintiffs who have been deposed: Malcolm Wade, Mathew Brewer, James Brown, John Cannon, Joseph Casper, Robert Cook, Stephen Dean, Neil Kitchen. Joseph Ogier, and Troy Sohn.

II. FACTS IN THE SUMMARY JUDGMENT RECORD

A. Plaintiffs' Witnesses - Fleet Managers and Fleet Coordinators

Wade, as mentioned, is the plaintiff who initiated this lawsuit. Werner hired him as a dedicated night fleet coordinator (off-hours fleet manager) for their Staples account in London. Ohio, effective August 9, 2004. (Doc. 121, Ex. 15, Wade Depo. at 18:19-19:3. 37:5-37:11). He received a base salary of approximately $35,000 per year while at Werner and, though he received raises and bonuses, the salary was not dependent on the hours worked and remained the same whether or not he exceeded 40 hours in any given week. Id at 19:4-20:7. His typical hours were 4 p.m. to 4 a.m. (or after) for a total of approximately 60 hours per week. Id. at 26:22-27:3, 84:5-84:8. The bonuses he received were, to his knowledge, based on operating efficiencies, safety, and timely delivery of his group of drivers. Id at 24:23-25:1, 34:10-34:12. In his fleet coordinator role. Wade was generally accountable for the safe delivery of products from the Staples facility to the store. Id at 33:21-34:12. In fact, as mentioned, his bonuses were based on his efficacy as a manager and, therefore. Wade was empowered to take a number of steps to ensure on-time and safe deliveries. For example, in the event of a breakdown, Wade wouldreroute trucks or rearrange the loads to make sure the route was covered. Id. at 29:16-31:4. In order to obtain the equipment resources to manage this, he would reach out to his superior, Al Gaston, or an off-hours management team at Werner's headquarters in Omaha. Id. In the event that, during a pre-inspection before setting out on his route, a driver noticed there was something wrong with their truck or trailer. Wade was the contact person. Id. at 38:3-38:6. In the case of, for instance, a damaged trailer, Wade would deal with the issue by ordering that the load be switched with a replacement trailer and then arranging for service for the broken trailer. Id. at 38:3-40:18. In the event that Wade could not manage to repower or reassign a load⁶ or otherwise deal with any eventuality that occurred, he would call Staples and inform them of the late load. Id. at 32:21-33:8, 62:3-63:12. He would also, on occasion, advise drivers of foul weather and attempt to steer them around it. Id. at 91:16-91:23. He posted safety notices and reminded drivers to do their preventative maintenance as well as quarterly safety training. Id. at 33:13-33:17, 50:18-52:1, 120:9-121:5. If drivers did not complete their quarterly safety training Wade would remove them from the schedule. Id. at 102:1-102:17. If drivers did not have enough remaining Department of Transportation (DOT) driving hours⁷ to complete a route he would schedule or reschedule them (possibly with a second driver) accordingly. Id. at 99:7-99:24. Wade lacked the power to unilaterally fire drivers, but he would discipline them through counseling and by forwarding recommendations regarding termination to his superior. Id. at 103:5-105:12. In short, he managed drivers, planned loads, scheduled drivers, worked with drivers on safety issues, and worked with the customer to maintain a good relationship betweenWerner and Staples. Id. at 57:19-60:11. Through his management, on-time safe deliveries improved at the London, Ohio Staples location from 90% to 99.6%. Id at 62:3-63:12, 69:6-70:7, 74:2-76:11, 123:19-124:13.

Mathew Brewer is an opt-in plaintiff who no longer works for Werner. (Doc. 121. Ex. 2, Brewer Depo. at 6:20-7:1; Doc. 82, Ex. 1, Consent Forms at 6). When he worked for Werner, however, he was a fleet coordinator at the Staples-dedicated facility in London, Ohio - meaning he was essentially a fleet manager who worked the night shift. Id. at 14:16-15:7. He was a salaried employee, who was paid the same (approximately $3,000 per month) regardless of how-many hours he worked. Id. at 16:6-18:3. During his time in London, he worked 4 p.m. to 4 a.m. Sunday-Thursday and worked three planning hours on Saturday - a total of 63 weekly hours. Id. at 18:17-19:18. When working, Brewer oversaw drivers, matching drivers with loads in order to make sure things were delivered on time. Id at 21:6-22:15. At the Staples-dedicated site, he was the only Werner employee, overseeing drivers who were employed by Staples. Id. at 22:22-24:24. If a driver used up, while out on delivery, the maximum allowable DOT hours, or had some other mishap, he would work with load planners and dispatchers to see if another truck could take over the load. Id at 23:11-25:20, 28:18-29:4. He did not have authority, he said, to punish a driver, but he could remove them from the schedule for safety issues (sickness) or having used their maximum number of DOT hours. Id. at 26:23-28:17. He would also help with making sure the drivers completed their required quarterly safety training. Id. at 29:5-29:24.

James Brown is an opt-in plaintiff in this litigation. (Doc. 90, Ex. 1 Consent Forms at 3). Brown has been, during his tenure at Werner, both a fleet manager and a fleet coordinator. (Doc. 121, Ex. 3, Brown Depo. at 9:14-9:22). He works at a Wal-Mart-dedicated facility in Tomah. Wisconsin. Id at 10:6-10:14 He is a salaried employee, paid the same no matter how manyhours he works. Id. at 10:18-11:12 (Brown started at approximately $2,200 per month). He currently works a 7 a.m. to 7 p.m. rotating schedule with two or three days on followed by two days off. Id. at 12:21-13:14. In his current capacity as fleet manager, he manages a board of drivers, works with a load planner to assign loads to drivers, works out "back hauls" and "detention pay" and otherwise manages the drivers to make sure t...