United States District Court, E.D. Arkansas, Western Division
MARIO BAILEY, INDIVIDUALLY AND ON BEHALF OF OTHERS SIMILARLY SITUATED PLAINTIFF
v.
NEW AGE DISTRIBUTING, INC. DEFENDANT
ORDER
James
M. Moody Jr.United States District Judge
This
action is brought under the Fair Labor Standards Act
(“FSLA”) and the Arkansas Minimum Wage Act
(“AMWA”). On June 4, 2019, the Court granted the
Plaintiff's Amended Motion for Conditional Class
Certification of the following class: All delivery drivers,
helpers and driver/helpers employed by New Age Distributing,
Inc. since August 17, 2015 who worked more than 40 hours in
any given week during that time period. Now pending before
the Court are Defendant's motion for summary judgment
(docket No. 80) and motion to decertify the class (docket #
83). Plaintiffs have responded, and Defendant has filed reply
briefs.
In its
motion for summary judgment, Defendant seeks dismissal of all
claims made by the collective class against them arguing that
the Plaintiffs cannot meet their burden of proof under the
FLSA or, as it imposes the same requirements as the FLSA, the
AMWA. See Helmert v. Butterball, LLC, 805 F.Supp.2d
655, 663 n.8 (E.D. Ark. July 27, 2011).
Summary
judgment is appropriate only when there is no genuine issue
of material fact, so that the dispute may be decided solely
on legal grounds. Holloway v. Lockhart, 813 F.2d 874
(8th Cir. 1987); Fed.R.Civ.P. 56. The Supreme Court has
established guidelines to assist trial courts in determining
whether this standard has been met: The inquiry is the
threshold inquiry of determining whether there is a need for
trial -- whether, in other words, there are genuine factual
issues that properly can be resolved only by a finder of fact
because they may reasonably be resolved in favor of either
party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986).
The
Eighth Circuit Court of Appeals has cautioned that summary
judgment should be invoked carefully so that no person will
be improperly deprived of a trial of disputed factual issues.
Inland Oil & Transport Co. v. United States, 600
F.2d 725 (8th Cir. 1979), cert. denied, 444 U.S. 991
(1979). The Eighth Circuit set out the burden of the parties
in connection with a summary judgment motion in Counts v.
M.K. Ferguson Co., 862 F.2d 1338 (8th Cir. 1988):
[T]he burden on the moving party for summary judgment is only
to demonstrate, i.e., “[to] point[] out to the
District Court, ” that the record does not disclose a
genuine dispute on a material fact. It is enough for the
movant to bring up the fact that the record does not contain
such an issue and to identify that part of the record which
bears out his assertion. Once this is done, his burden is
discharged, and, if the record in fact bears out the claim
that no genuine dispute exists on any material fact, it is
then the respondent's burden to set forth affirmative
evidence, specific facts, showing that there is a genuine
dispute on that issue. If the respondent fails to carry that
burden, summary judgment should be granted.
Id. at 1339. (quoting City of Mt. Pleasant v.
Associated Elec. Coop., 838 F.2d 268, 273-274 (8th Cir.
1988) (citations omitted)(brackets in original)). Only
disputes over facts that may affect the outcome of the suit
under governing law will properly preclude the entry of
summary judgment. Anderson, 477 U.S. at 248.
New Age
Distributing, Inc. is company that delivers soft drinks by
trucks to customers, which range from liquor stores to large
grocery stores. The Plaintiffs are Drivers and Helpers.
Drivers are distinct from Helpers. Drivers have a main route
that they work every workday. There are nineteen delivery
routes that the company uses to deliver products to its
customers. Drivers are assigned routes on a daily basis. The
Driver is responsible for checking the inventory before the
truck leaves the distribution center, gassing the truck up
before making deliveries, counting the merchandise upon
delivery, and accounting to the Defendant the amounts paid by
the customer for the delivery. Drivers are assisted by
Helpers who take part in pre-delivery, delivery and
post-delivery activities. Drivers have different
responsibilities in making deliveries depending on which
route the Driver is assigned. Defendant's customers
dictate the manner of delivery. Different customers require
different amounts of products and manner of delivery. Helpers
are assigned on a day-by-day basis to assist Drivers.
Plaintiffs
claim that Drivers and Helpers worked in excess of eight
hours per day, and often worked more than forty hours per
week. In support of their claims, Plaintiffs produced twelve
virtually identical declarations from Plaintiffs Mario
Bailey, Keith McGee, Ivan Roseby, Brian Bell, Antoine
Eubanks, Vida Davis, Brent Williams, Otha Hall, Terrell
Parker, Imarcus Ewing and Keith Hatton. Each claim that
during their differing terms of employment with New Age, they
arrived at the Defendant's facility between 5:00 and 5:30
a.m. for pre-delivery tasks, began the delivery route, worked
through lunch or only stopped at a fast food restaurant like
McDonald's or Taco Bell, and after delivery returned to
the Defendant's facility for post-delivery work,
resulting in a work day of approximately ten to twelve hours
per day. Each Plaintiff claims to have worked fifty to sixty
hours each week. None of the Plaintiffs attach or reference
outside materials which support their declarations. Further,
none of the Plaintiffs account for any time off for sick
days, vacation or holidays.
Defendant
argues that the Plaintiffs cannot meet their burden of proof
and that all claims against them should be dismissed with
prejudice. In an overtime claim, “[a]n employee who
sues for unpaid overtime ‘has the burden of proving
that he performed work for which he was not properly
compensated.'” Holaway v. Stratasys, Inc.,
771 F.3d 1057, 1059 (8th Cir. 2014) (quoting, Anderson v.
Mt. Clemens Pottery Co., 328 U.S. 680, 686-87 (1946)).
While § 11(c) of the FLSA requires employers to keep
accurate time records for each employee that is subject to
the overtime limits, an employer cannot avoid liability for
violations by failing to do so. As recognized by the Supreme
Court in Anderson v. Mt. Clemens Pottery Co., 328
U.S. 680, 687 (1946):
[d]ue regard must be given to the fact that it is the
employer who has the duty under § 11(c) of the Act to
keep proper records of wages, hours and other conditions and
practices of employment and who is in position to know and to
produce the most probative facts concerning the nature and
amount of work performed. Employees seldom keep such records
themselves; even if they do, the records may be and
frequently are untrustworthy.
In the
situation where employers fail to keep accurate time records,
the employee is relieved of proving the precise extent of
uncompensated work, and Anderson sets out a relaxed
evidentiary standard that is to be applied. “Under this
relaxed evidentiary standard, once the employee has shown
work performed for which the employee was not compensated,
and ‘sufficient evidence to show the amount and extent
of that work as a matter of just and reasonable
inference,' the burden then shifts to the employer to
produce evidence to dispute the reasonableness of the
inference.” Carmody v. Kansas City Bd. of Police
Com'rs, 713 F.3d 401, 406 (2013) (citing
Anderson at 687-88); see also Holaway v.
Stratasys, Inc., 771 F.3d. 1057, 1059 (8th Cir. 2014)
(summary judgment for employer affirmed where employee put
forth contradictory and bare assertions of his overtime hours
worked). This relaxed evidentiary standard only applies when
there is uncertainty in the amount of the damages, but the
existence of damage is certain. Carmody at 406;
Anderson at 688.
Although
Plaintiffs are subject to this relaxed standard, they must
still provide some “details which would allow a jury to
determine [they] worked beyond forty hours in any specific
week of [their] employment.” Holaway v. Stratasys,
Inc., 771 F.3d at 1060. Here, Plaintiffs provide
virtually identical declarations which claim each declarant
worked the exact same hours, lunched at the same fast food
restaurants and fail to account for any holiday, vacation or
sick day. Plaintiffs' declarations are unsupported by any
record evidence, are overinclusive and uncorroborated. Even
taking the evidence in the light most favorable to
Plaintiffs, the Court finds that Plaintiffs have
“failed to come forward with sufficient evidence to
show the amount and extent of [overtime] work which would
allow a fact-finder to find overtime hours as a matter of
just and reasonable inference.” Holaway, 771
F.3d at 1060 (quoting Anderson, 328 U.S. at 687-88,
66 S.Ct. 1187).
For
these reasons, Defendant's motion for summary judgment
(docket No. 80) is GRANTED, and the complaint is dismissed
with prejudice. Defendant's motion to ...