1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Bejtush Hyseni, No. CV-19-05671-PHX-DWL
10 Plaintiff, ORDER
11 v.
12 Penske Logistics LLC,
13 Defendant. 14 15 Plaintiff Bejtush Hyseni (“Hyseni”) alleges that his employer, Defendant Penske 16 Logistics LLC (“Penske”), failed to pay him all of the wages he was owed and retaliated 17 after he complained about this failure, in violation of the Arizona Wage Act (“Wage Act”) 18 and the Fair Labor Standards Act’s (“FLSA”) retaliation provision. (Doc. 1-3.) Now 19 pending before the Court is Penske’s motion for summary judgment. (Doc. 24.) For the 20 following reasons, the motion is granted and this action is terminated. 21 BACKGROUND 22 I. Factual Background 23 The following facts are derived from evidence submitted alongside the parties’ 24 summary judgment briefing. The facts are undisputed unless otherwise noted. 25 Penske is a national provider of logistical and supply chain management services. 26 (Doc. 24-2 at 2 ¶¶ 2-4.) Hyseni started driving trucks for Penske in November 2016. (Id. 27 at 3-4 ¶ 9.) Depending on the job, Hyseni might be paid hourly or based on mileage and 28 stops. (Id.) On June 25, 2018, Hyseni began working on Penske’s Trader Joe’s account. 1 (Id.) From June 25, 2018 to November 10, 2019, Penske paid Hyseni at a rate of $20.50 2 per hour. (Id. at 4 ¶ 10.) By October 2018, he was paid on an hourly basis only. (Id.)1 3 The amount of work available to Hyseni on the Trader Joe’s account fluctuated “from 4 month-to-month, week-to-week, and even day-to-day.” (Id. at 4 ¶ 13; id. at 12-13.) 5 Hyseni contends, and Penske disputes, that when he was moved to the Trader Joe’s 6 account, he was guaranteed a minimum of 60 hours of work per week. (Doc. 25-2 at 1, 8, 7 16-18, 24-25.) Hyseni further contends this promise exists in writing, but only Penske has 8 the written document. (Id. at 28, 79.) Hyseni testified in his deposition that he would not 9 have agreed to work on the Trader Joe’s account if he hadn’t been guaranteed at least 60 10 hours of work per week. (Id. at 30.) 11 Hyseni further contends, and Penske disputes, that Penske management would alter 12 the number of driving hours he recorded in his driving logs on various days to make it 13 appear as though he and Penske were in compliance with U.S. Department of 14 Transportation (“DOT”) regulations setting the maximum number of hours a commercial 15 driver may drive in one day. (Id. at 36-38.) Hyseni describes this scheme as a cooperative 16 one between himself and management. (Id. at 39.) For instance, if Hyseni were in Tucson 17 on a delivery, but had already driven the maximum number of hours that day, he would 18 call a manager, who would instruct him to log out of the timekeeping system and then log 19 herself in to set his clock-in time to two hours later than it actually was (say, from 4:00 20 a.m. to 6:00 a.m.) so that Hyseni could make the return trip to Phoenix without exceeding 21 the maximum hours. (Id. at 39-40.) Hyseni contends this hour-tinkering happened 22 “hundreds of times.” (Id. at 72.) It appears, based on Hyseni’s deposition testimony and 23 response to summary judgment, that Hyseni’s theory is that this scheme was at least in part 24 what caused him not to be paid for the correct number of overtime hours worked. (Doc. 25 25 at 9; see generally Doc. 25-2 at 35-40, 47-48, 56-58, 60-61.) 26 An important part of the parties’ dispute on summary judgment centers on how, and 27 using what platform, Hyseni logged his driving hours. One of the platforms, “Cellcomm,” 28 1 Hyseni has since moved to a non-hourly position. (Doc. 24-2 at 4 ¶ 12.) 1 is the platform that Hyseni used to log his working hours. (Doc. 25-2 at 43-44.) Cellcomm 2 is housed on a cell phone that Hyseni would carry with him as he worked. (Id. at 46, 48.) 3 He would clock in and out every day on Cellcomm and he would be paid based on the 4 hours logged on the app. (Doc. 24-2 at 234; Doc 25-2 at 51-52.) Meanwhile, the so-called 5 “XRX”2 platform, which would log the number of hours that Hyseni was driving, rather 6 than simply on the job (as some of Hyseni’s work involved tasks besides driving the 7 vehicle), was used to report the number of hours Hyseni drove for DOT compliance 8 purposes. (Doc. 24-2 at 228; Doc. 25-2 at 73.) 9 Hyseni contends that, beginning in August 2018, between 10-20 hours of his 10 working time went unrecorded every week. (Doc. 25-2 at 56-57.) Hyseni asserts that his 11 timecards, driver logbooks, and trip sheets did not match up. (Id. at 57.) 12 Also in August 2018, Hyseni started to complain that he was not being paid correctly 13 for the overtime hours he worked. (Id. at 33-34.) His concerns were not addressed to his 14 satisfaction, and in March 2019 he threatened that he would sue Penske. (Id. at 35.) 15 On July 8, 2019, after complaining about these issues for months and not getting 16 what he believed to be a satisfactory response, Hyseni filed suit. Hyseni v. Penske Logistics 17 LLC, 2:19-cv-04663 (D. Ariz. July 8, 2019), Doc. 1.3 However, Hyseni voluntarily 18 dismissed the suit on September 25, 2019. Id. at Docs. 16, 17. Hyseni asserts that in 19 retaliation for filing that lawsuit, his hours were cut and Penske put cameras in his truck 20 that monitor him 24 hours per day. (Doc. 25-2 at 66, 68.) This led Hyseni to file a second 21 suit, which is this case. (Id. at 68.) 22 …
23 2 According to Penske, the system is actually called “XRS” (Doc. 26 at 1 n.1), but both parties refer to it as XRX and the Court follows suit. 24 3 Neither party attached any evidence of this lawsuit other than reference to the case’s 25 docket. (Doc. 24 at 7; Doc. 25 at 2.) The existence of the July 2019 lawsuit is subject to judicial notice and may be considered when resolving the motion for summary judgment. 26 United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) (“[W]e ‘may take notice of proceedings in other courts, both within 27 and without the federal judicial system, if those proceedings have a direct relation to matters at issue.’”) (citation omitted); Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 28 741, 746 n.6 (9th Cir. 2006) (“[Courts] may take judicial notice of court filings and other matters of public record.”) (citation omitted). 1 II. Procedural History 2 On October 11, 2019, Hyseni filed the complaint in Maricopa County Superior 3 Court. (Doc. 1-3.) 4 On November 22, 2019, Penske removed the action to this Court. (Doc. 1.) The 5 parties then engaged in discovery, which closed on July 10, 2020. (Docs. 8-19.) 6 On October 2, 2020, Penske filed the motion for summary judgment. (Doc. 24.) 7 The motion is now fully briefed. (Docs. 25, 26.)4 8 DISCUSSION 9 I. Legal Standard 10 “The court shall grant summary judgment if [a] movant shows that there is no 11 genuine dispute as to any material fact and the movant is entitled to judgment as a matter 12 of law.” Fed. R. Civ. P. 56(a). “A fact is ‘material’ only if it might affect the outcome of 13 the case, and a dispute is ‘genuine’ only if a reasonable trier of fact could resolve the issue 14 in the non-movant’s favor.” Fresno Motors, LLC v. Mercedes Benz USA, LLC, 771 F.3d 15 1119, 1125 (9th Cir. 2014). The court “must view the evidence in the light most favorable 16 to the nonmoving party and draw all reasonable inference in the nonmoving party’s favor.” 17 Rookaird v. BNSF Ry. Co., 908 F.3d 451, 459 (9th Cir. 2018). “Summary judgment is 18 improper where divergent ultimate inferences may reasonably be drawn from the 19 undisputed facts.” Fresno Motors, 771 F.3d at 1125 (internal quotation marks omitted). 20 A party moving for summary judgment “bears the initial responsibility of informing 21 the district court of the basis for its motion, and identifying those portions of ‘the pleadings, 22 depositions, answers to interrogatories, and admissions on file, together with the affidavits, 23 if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” 24 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “In order to carry its burden of 25 production, the moving party must either produce evidence negating an essential element 26 4 Penske requested oral argument (Doc. 24), but that request is denied because the 27 issues have been fully briefed and oral argument will not aid the Court’s decision. See Fed. R. Civ. P. 78(b); LRCiv 7.2(f). 28 1 of the nonmoving party’s claim or defense or show that the nonmoving party does not have 2 enough evidence of an essential element to carry its ultimate burden of persuasion at trial.” 3 Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). “If . . . 4 [the] moving party carries its burden of production, the nonmoving party must produce 5 evidence to support its claim or defense.” Id. at 1103. 6 “If the nonmoving party fails to produce enough evidence to create a genuine issue 7 of material fact, the moving party wins the motion for summary judgment.” Id. There is 8 no issue for trial unless enough evidence favors the non-moving party. Anderson v. Liberty 9 Lobby, Inc., 477 U.S. 242, 249 (1986). “If the evidence is merely colorable or is not 10 significantly probative, summary judgment may be granted.” Id. at 249-50 (citations 11 omitted). At the same time, the evidence of the non-movant is “to be believed, and all 12 justifiable inferences are to be drawn in his favor.” Id. at 255. “[I]n ruling on a motion for 13 summary judgment, the judge must view the evidence presented through the prism of the 14 substantive evidentiary burden.” Id. at 254. Thus, “the trial judge’s summary judgment 15 inquiry as to whether a genuine issue exists will be whether the evidence presented is such 16 that a jury applying that evidentiary standard could reasonably find for either the plaintiff 17 or the defendant.” Id. at 255. 18 II. Analysis 19 A. Wage Act Claim 20 Count One of the complaint asserts a violation of the Wage Act. (Doc. 1-3 at 3 ¶¶ 21 13-19.) This claim is predicated on the allegation that, from late August 2018 to early 22 April 2019, Hyseni worked well over 40 hours per week pursuant to Penske’s promise that, 23 after he moved to the Trader Joe’s account, he would work at least 60 hours per week and 24 be paid at 1.5 times his normal wage for overtime hours. (Id. at 3 ¶¶ 8-9.) Hyseni 25 acknowledges that Penske generally paid him for ten or twenty hours of his overtime work 26 but contends Penske “failed or refused to pay [him] wages for all of the hours over forty 27 hours per week that [he] worked.” (Id. at 3 ¶ 10.) Hyseni asserts that under the Wage Act, 28 he “had a reasonable expectation that Penske would pay him wages at 1.5 times his regular 1 rate of pay for all hours he worked over forty hours in a week,” that “Penske failed or 2 refused to pay [him] all the wages due him,” and that Penske “had no reasonable, good 3 faith basis for withholding payment of [his] wages.” (Id. at 3 ¶¶ 16-18.) 4 In its summary judgment motion, Penske makes three arguments. First, Penske 5 asserts that a one-year statute of limitations applies to Hyseni’s Wage Act claim, meaning 6 any claims arising before October 11, 2018 (one year before Hyseni filed the complaint) 7 are time-barred. (Doc. 24 at 7-8.) Second, Penske argues that, to the extent Hyseni claims 8 he is owed damages under the Wage Act for weeks he worked fewer than 60 hours (because 9 Penske had promised him at least 60 hours of work per week), this is not a viable Wage 10 Act theory, because “the Wage Act provides a cause of action for unpaid wages related to 11 work the employee actually performed; it does not provide a cause of action for an 12 employer’s alleged unfulfilled promise that an employee will have an opportunity to 13 perform work.” (Id. at 8-9.) Third, Penske argues that Hyseni has proffered no evidence 14 demonstrating that he was insufficiently paid for the hours he actually worked, because he 15 admitted during his deposition that he “accurately recorded his work hours with his 16 Cellcomm punches” and he received overtime pay consistent with the hours recorded in 17 Cellcomm. (Id. at 9.) 18 Hyseni responds as follows. First, Hyseni acknowledges his claims are subject to a 19 one-year statute of limitations but argues his claims are subject to equitable tolling in light 20 of his July 2019 lawsuit. (Doc. 25 at 7-9.) Second, Hyseni argues he reasonably relied on 21 Penske’s promise of at least 60 hours of work per week and that Penske’s “failure to abide 22 by their own agreement is a violation” of the Wage Act and also violates the implied 23 covenant of good faith and fair dealing. (Id. at 5-7.) Third, Hyseni argues that because his 24 deposition testimony and responses to Penske’s requests for admission create a factual 25 dispute over whether he was in fact paid appropriately for all hours worked, summary 26 judgment on this issue is improper. (Id. at 9.) 27 Penske replies that equitable tolling does not apply in this case, binding Ninth 28 Circuit precedent forecloses Hyseni’s argument that he can recover for Penske’s failure to 1 provide him with 60 hours of work per week, and there is no genuine dispute about whether 2 Hyseni was ever not paid for all hours worked. (Doc. 26 at 1-6.) 3 1. Promise To Work 60 Hours Per Week 4 During his deposition, Hyseni repeatedly emphasized that when he was moved to 5 the Trader Joe’s account, he was promised at least 60 hours of work per week. (See, e.g., 6 Doc. 25-2 at 1, 8, 16-18, 24-25, 28, 30, 79.) And in his summary judgment response brief, 7 Hyseni argues that Penske’s failure to fulfill this promise constitutes “a violation of the 8 Arizona Wage Act and an adverse employment action.” (Doc. 25 at 6.) 9 This argument fails for the simple reason that a plaintiff cannot prevail on a Wage 10 Act claim under the theory that he wasn’t given the opportunity to work as many hours as 11 promised. In Nieto-Santos v. Fletcher Farms, 743 F.2d 638 (9th Cir. 1984), the Ninth 12 Circuit reviewed Arizona case law and held that the district court had been “clearly correct” 13 in interpreting the Wage Act as providing recovery only on “compensation due an 14 employee for work performed.” Id. at 642 (internal quotation marks omitted). Thus, the 15 plaintiffs in that case could not recover “damages for the balance of the contract term 16 during which they were not permitted to work.” Id. In other words, a Wage Act plaintiff 17 cannot recover money based on work that he wishes he’d had the opportunity to perform 18 or was promised the opportunity to perform—instead, recovery is limited to “wages for 19 work already performed.” Id. This forecloses Hyseni’s theory that he can recover money 20 for weeks he did not have the opportunity to work at least 60 hours. See also Schade v. 21 Dietrich, 760 P.2d 1050, 1062 (Ariz. 1988) (“By its terms, the statute subjects an employer 22 to treble damages for failing to pay nondiscretionary compensation for labor or services 23 actually performed and for which the employee had a reasonable expectation . . . .”) 24 (emphasis added); Thompson v. Apache County, 2011 WL 5547981, *10 (D. Ariz. 2011) 25 (granting summary judgment for defendant where plaintiff sought payment for hours not 26 worked and admitted that he had been timely paid for hours actually worked); Ufheil v. 27 Carraba’s Italian Grill, LLC, 2011 WL 3665382, *3 (D. Ariz. 2011) (“Given that 28 Plaintiff’s complaint appears to seek damages for work not yet completed, [the Wage 1 Act’s] treble damages provision is not applicable to this case . . . .”). 2 Notably, although Penske offered an extensive discussion of Nieto-Santos and its 3 progeny in the summary judgment motion, Hyseni did not acknowledge this line of 4 precedent (much less attempt to distinguish it) in his response brief. This is not a helpful 5 or appropriate strategy. Cf. Borowski v. DePuy, Inc., 850 F.2d 297, 304 (7th Cir. 1988) 6 (criticizing “the ostrich-like tactic of pretending that potentially dispositive authority 7 against [a party’s] contention does not exist”) (citation and internal quotation marks 8 omitted). At any rate, Hyseni’s Wage Act theory of recovery here is substantially identical 9 to the Wage Act theories that were rejected in the cases cited above and it fails for the same 10 reasons. 11 Finally, the Court also rejects Hyseni’s alternative theory that Penske’s failure to 12 give him 60 hours of work per week violated “the covenant of good faith and fair dealing 13 that is implied in all contracts including employment contacts.” (Doc. 25 at 6-7.) This 14 claim does not appear in the complaint, which expressly styled Count One as a statutory 15 claim under the Wage Act (Doc. 1-3 at 3 [“Count One (Wage Claim Pursuant to A.R.S. 16 23-350 et seq”], not a common-law breach of contract claim. A defendant is not put 17 properly on notice of a claim where it is not pled in the complaint and is raised for the first 18 time in response to a summary judgment motion. Paralyzed Veterans of Am. v. 19 McPherson, 2008 WL 4183981, *10 (N.D. Cal. 2008). Cf. Wasco Prods., Inc. v. Southwall 20 Techs., Inc., 435 F.3d 989, 992 (9th Cir. 2006) (“Wasco therefore may not toll the statute 21 of limitations based on its allegations of civil conspiracy, which appear for the first time in 22 its response to the summary judgment motion. . . . Simply put, summary judgment is not 23 a procedural second chance to flesh out inadequate pleadings.”) (internal quotation marks 24 omitted). See also Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 25 2004) (“Gilmour may not raise a contractual claim in her opposition to Gates’ summary 26 judgment motion. Gates had no notice of a contract claim based on the tort claims set forth 27 in the complaint. Liberal pleading does not require that, at the summary judgment stage, 28 defendants must infer all possible claims that could arise out of facts set forth in the 1 complaint.”); Ziptronix, Inc. v. Omnivision Techs., Inc., 71 F Supp. 3d 1090, 1099 (N.D. 2 Cal. 2014) (“A plaintiff cannot raise a claim for the first time in response to a motion for 3 summary judgment.”). 4 2. Non-Payment For Work Performed 5 Penske argues Hyseni has no evidence that he was insufficiently paid for work 6 actually performed. (Doc. 24 at 9.) Penske further argues that Hyseni admitted during his 7 deposition that he recorded all of his time accurately in the Cellcomm system and that 8 Penske paid him according to the time recorded in Cellcomm. (Id. at 4-7, 9.) 9 Hyseni disputes that all of his hours were in fact accurately recorded, contending 10 his “hours were often changed by [Penske].” (Doc. 25 at 9.) Hyseni cites his own 11 deposition testimony wherein he claims that his managers would reduce the number of 12 hours recorded on Penske’s drive-logging system to circumvent DOT regulations. (Doc. 13 25-2 at 61-62, 70-76.) As noted above, Hyseni’s theory seems to be that in order to allow 14 him to return home after having already driven the maximum number of hours permitted 15 by DOT regulations, Penske managers regularly would go into Hyseni’s driving log and 16 reduce the number of hours by 1-4 hours so he could make the return trip without appearing 17 to violate the regulations. Then, the theory seems to be, Penske would pay Hyseni for the 18 amount of hours that appeared in the logs, rather than the longer hours he actually worked 19 but did not report in order to avoid regulatory scrutiny. 20 Penske replies that it uses separate time-logging systems for paying employees and 21 complying with DOT regulations. Thus, it argues, even if Penske did alter the regulatory 22 records (Penske disputes that it did so), this would not affect the number of hours logged 23 for payment purposes. (Doc. 26 at 4 & n.4.) Accordingly, Penske argues, Hyseni’s 24 assertions about the hours being changed are irrelevant to the Wage Act claim. (Id. at 4- 25 6.) Further, Penske contends, Hyseni’s assertions about his work hours are vague, 26 generalized, and lacking in supporting documentation—he has not identified a single 27 concrete instance in which his hours were inaccurately recorded, leading to less pay than 28 he earned, or where his hours were recorded accurately but Hyseni nevertheless received 1 less pay than he should have. (Id.) Thus, Penske argues, there is insufficient evidence in 2 the record for there to be a genuine issue of material fact on whether Hyseni was paid 3 properly for the hours he worked. 4 Penske is entitled to summary judgment on the underpayment-for-actual-hours- 5 worked component of Hyseni’s Wage Act claim. Penske attached its wage policy and over 6 one hundred pages of earnings statements and reports showing Hyseni’s pay during the 7 relevant time period (Doc. 24-2 at 16-187), painstakingly set out how Hyseni’s pay was 8 calculated, and swears that these calculations are correct. (Doc. 24 at 4-6; Doc. 24-2 at 16- 9 23.) This suffices for Penske to carry its initial burden of production under Celotex, and 10 therefore Hyseni as the nonmoving party was required to produce evidence to support his 11 claim. Nissan Fire & Marine Ins. Co., 210 F.3d at 1103. Hyseni’s responsive evidence 12 must be enough to create a genuine of material fact. Id. If it is “merely colorable” or “not 13 significantly probative” then summary judgment is proper. Anderson, 477 U.S. at 249-50. 14 Hyseni attaches two categories of evidence to his response: his own deposition 15 testimony and dozens of photocopies of driver’s vehicle inspection reports from July and 16 August 2018. (Docs. 25-2, 25-3, 25-4.) He also points to denials he submitted in response 17 to Penske’s request for admissions. (Doc. 25 at 9.) This evidence is insufficient to avoid 18 summary judgment, even when the Court, as it must, views it in the light most favorable to 19 Hyseni and draws all reasonable inferences in his favor. 20 First, Hyseni’s denials of Penski’s requests for admissions (Doc. 24-2 at 7-14) are 21 not sufficient to create a genuine dispute of material fact, because “[t]he mere existence of 22 some alleged factual dispute between the parties will not defeat an otherwise properly 23 supported motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 381 (2007). See 24 also Est. of Tucker v. Interscope Records, Inc., 515 F.3d 1019, 1033 n.14 (9th Cir. 2008) 25 (“To defeat a summary judgment motion, . . . [t]he non-moving party must establish the 26 existence of a genuine factual dispute on the basis of admissible evidence; bare allegations 27 without evidentiary support are insufficient to survive summary judgment.”). Cf. Deakins 28 v. Pack, 957 F. Supp. 2d 703, 742 (S.D. W. Va. 2013) (“Defendants’ simple denial [of a 1 request for admission on liability] is not sufficient to show that they are entitled to judgment 2 as a matter of law.”). Additionally, Hyseni’s denials are not supported by any evidence in 3 the record beside his own deposition testimony, which, as discussed below, is vague, 4 conclusory, and—like the denials themselves—unsupported by (and sometimes 5 contradicted by) other evidence in the record. The denials do not weigh against granting 6 summary judgment in this case. 7 As for Hyseni’s deposition testimony, it shows, at most, that Hyseni subjectively 8 believes he was not paid all of the wages he was due. But Hyseni’s strident position that 9 he was underpaid, standing alone, is merely colorable evidence and is not sufficiently 10 probative because it is vague, conclusory, and unsupported by other evidence in the record. 11 For example, Hyseni testified that one of his managers “never pays me” and that “I never 12 got paid. You can check my pay stubs.” (Doc. 25-2 at 7.) Although Hyseni mentions the 13 pay stubs, they are not attached to his response. This is improper. See, e.g., Connick v. 14 Teachers Ins. and Annuity Ass’n of Am., 784 F.2d 1018, 1020 (9th Cir. 1986) (“A party 15 may not defeat a summary judgment motion by reference to ‘phantom’ documents not 16 supplied to the court.”); Fed. R. Civ. P. 56, advisory committee’s note to 2010 amendment 17 (“Materials that are not yet in the record—including materials referred to in an affidavit or 18 declaration—must be placed in the record.”). His allusions to not being paid are also 19 vague—it is unclear when this incident of nonpayment occurred and what underlying facts 20 support the nonpayment, other than the unproffered pay stubs. (The copious earnings 21 statements Penske attached to its motion for summary judgment (Doc. 24-2 at 28-179) do 22 not show, as far as the Court can tell, that Hyseni was ever underpaid, and Hyseni does not 23 point to any of the earnings statement documents as evidence of underpayment.) Later, 24 Hyseni testified that his supervisors repeatedly acknowledged that he was being underpaid 25 and promised to eventually pay him the full amount, which they never did. (See, e.g., Doc. 26 25-2 at 33-34.) But Hyseni fails to state how or why his managers thought he was being 27 underpaid. For instance, it is unclear, based on Hyseni’s testimony, whether he is referring 28 to being underpaid for hours worked, or not getting enough hours to work (which, as 1 discussed above, is not an actionable Wage Act theory), or some combination. Ultimately, 2 Hyseni’s deposition testimony on these points amounts to a number of vague, conclusory, 3 and unsupported assertions of nonpayment. (See, e.g., Doc. 25-2 at 9, 22.) This evidence 4 might be “colorable,” but it cannot defeat summary judgment where Penske has attached 5 authentic pay documents, laid out careful calculations to show the manner in which Hyseni 6 was accurately paid for time worked, and identified other instances (discussed below) 7 where Hyseni seemed to concede that he was paid for all of his overtime work. As noted, 8 the “mere existence of some alleged factual dispute will not defeat an otherwise properly 9 supported motion for summary judgment.” Scott, 550 U.S. at 380. 10 As noted, Penske proffered evidence that Hyseni made two important concessions. 11 First, during his deposition, Hyseni acknowledged that he regularly and accurately logged 12 his hours in the Cellcomm system, that Cellcomm was the basis for his pay, and that only 13 on two occasions were there issues with this system, which Penske quickly resolved in 14 each case. (Doc. 24-2 at 226-28, 231-36.) This Hyseni’s already unsupported assertions 15 that he was not paid for hours worked. Second, relatedly, Hyseni admitted in an 16 interrogatory response that his Cellcomm time was “logged accurately,” while his “Driver 17 Logbook” in the XRX system was not logged accurately. (Doc. 24-2 at 243.) This, 18 combined with the first admission, suggests that he was paid for hours actually worked: if 19 Cellcomm hours were accurately recorded, and Cellcomm hours were the basis for his pay, 20 then Hyseni was paid accurately. In short, Hyseni’s deposition testimony, on which Hyseni 21 substantially relies to survive summary judgment, either does not rise beyond colorable 22 evidence or, in some places, affirmatively undermines Hyseni’s case, especially when 23 viewed in light of his interrogatory responses. 24 The final category of evidence proffered by Hyseni is a large collection of driver’s 25 vehicle inspection reports, which are forms that have been penciled in with mileage and 26 other information. (Docs. 25-3, 25-4.) Hyseni points to this evidence once in his response 27 brief, as supposed support for the assertion that “the paychecks simply do not match 28 1 Plaintiff’s trip sheets that he recorded on a daily basis.” (Doc. 25 at 12.)5 Unfortunately, 2 Hyseni does not provide further elaboration on how the driver’s vehicle inspection reports 3 demonstrate this fact—they show the mileage driven on a given day but do not, at least so 4 far as the Court can tell, state the number of hours. This omission is problematic for Hyseni 5 because the basis for his wage claim is that he did not receive the correct hourly 6 compensation during the relevant time period—hours worked, rather than mileage driven, 7 was the basis of his pay, so the mileage driven on each day says little about Hyseni’s proper 8 payment on that day. (Doc. 1-3 at 3 ¶¶ 8-11, 16-17; see also Doc. 25 at 2-3 [setting out, in 9 response to summary judgment, Hyseni’s theory that he was not paid at his proper hourly 10 overtime rates during the relevant time period].) Other problems with the reports include 11 that they all date from July and August 2018, while Hyseni alleges the underpayment began 12 in August 2018 and ran through April 2019. Further, different reports appear to have been 13 completed by different people, as the handwriting and signatures on the reports vary from 14 report to report. (Compare Doc. 25-3 at 1 with id. at 3-4.) It is accordingly not clear that 15 all of these reports record Hyseni’s trips, or if they record a mixture of Hyseni’s and other 16 drivers’ trips. Hyseni does not explain in his brief or via a sworn declaration what these 17 reports mean or why they should be taken as authentic. For all these reasons, the reports 18 are not probative of Hyseni’s Wage Act claims (to put it mildly). 19 In sum, because Hyseni’s failed to proffer sufficient evidence in response to 20 Penske’s amply supported motion for summary judgment, his Wage Act claim fails. On 21 this record, no reasonable juror could find for Hyseni.6 22 B. FLSA Retaliation Claim 23 Hyseni’s final claim is for FLSA retaliation. (Doc. 1-3 at 4.) In the complaint, 24 Hyseni alleges that he brought a separate lawsuit against Penske on July 8, 2019 for failure 25 to pay overtime wages under the FLSA, which constituted protected activity, and Penske
26 5 This argument is made in the section of Hyseni’s response brief addressing the FLSA retaliation claim, not the Wage Act claim. 27 6 Because Hyseni did not proffer sufficient evidence to defeat summary judgment on 28 the merits of the Wage Act claims, the Court need not consider Penske’s alternative request for partial summary judgment on statute-of-limitations grounds. 1 then retaliated against him by engaging in the “adverse employment action” of “drastically 2 reducing [his] hours.” (Id. at 4 ¶¶ 21-24.) In his summary judgment response, Hyseni 3 identifies two additional adverse employment actions to which he was allegedly 4 subjected—“failure of payment for all hours worked” and “having a camera placed in the 5 cab of his work vehicle.” (Doc. 25 at 12.) 6 Penske moves for summary judgment on this claim, arguing that (1) under the 7 applicable burden-shifting framework of McDonnell Douglas, Hyseni has not established 8 a prima facie retaliation case; (2) alternatively, even if Hyseni had established a prima facie 9 case, Penske has demonstrated that it had legitimate reasons for undertaking the allegedly 10 adverse employment actions; and (3) there is no evidence the actions were pretextual. 11 (Doc. 24 at 10-15.) 12 In response, Hyseni disputes each of these points. (Doc. 25 at 10-13.) Penske 13 replies that Hyseni has not raised genuine disputes of material fact and has not offered 14 evidence to support the existence of any dispute. (Doc. 26 at 6-10.) 15 Under 29 U.S.C. § 215(a)(3), it is unlawful to retaliate against an employee because 16 the employee complained about FLSA violations. To establish a prima facie case of 17 retaliation, a plaintiff must show (1) the plaintiff engaged in FLSA-protected conduct, or 18 the employer erroneously believed the plaintiff engaged in such conduct; (2) the plaintiff 19 suffered an adverse employment action; and (3) there was a causal link between the 20 protected activity and the adverse action. Mayes v. Kaiser Found. Hosps., 917 F. Supp. 2d 21 1074, 1080 (E.D. Cal. 2013). See also Ader v. SimonMed Imaging Inc., 465 F. Supp. 3d 22 953, 975-76 (D. Ariz. 2020) (articulating same test). The evidentiary burden to establish a 23 prima facie case “on summary judgment is minimal and does not even need to rise to the 24 level of a preponderance of the evidence.” Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 25 (9th Cir. 1994). A plaintiff must only produce “very little” evidence that “gives rise to an 26 inference of unlawful” retaliation. Id. “If a plaintiff establishes a prima facie case of 27 retaliation, the burden shifts to the defendant to provide a legitimate, nonretaliatory reason 28 for the adverse employment action.” Ader, 465 F. Supp. 3d at 976. See also Spata v. 1 Smith’s Food & Drug Ctrs., Inc., 253 F. App’x 648, 649 (9th Cir. 2007) (McDonnell 2 Douglas burden-shifting framework may be applied to FLSA retaliation claims regardless 3 of whether evidence of retaliatory motive is direct or circumstantial). If a defendant 4 provides a legitimate, nonretaliatory reason for the action, the burden shifts back to the 5 plaintiff to show the proffered reason is pretextual. Ader, 465 F. Supp. 3d at 976. 6 1. Prima Facie Burden 7 Penske argues that Hyseni has failed to meet his prima facie burden on all three 8 prongs of the McDonnell Douglas test. (Doc. 24 at 10-14.) Hyseni responds that he has 9 met his burden. (Doc. 25 at 10-12.) The Court concludes that, even assuming that Hyseni’s 10 filing of the July 2019 lawsuit qualifies as “protected activity” and that the three forms of 11 retaliation identified in Hyseni’s complaint and summary judgment papers (i.e., reduced 12 hours, non-payment for work, and having a camera placed in one’s work vehicle) all 13 qualify as “adverse employment actions,” Hyseni has failed to meet his prima facie burden 14 because he has failed to establish a causal link between the alleged protected activity and 15 the alleged adverse actions. 16 The causal link between the protected activity and the adverse employment action 17 “can be inferred from circumstantial evidence such as the employer’s knowledge of the 18 protected activities and the proximity in time between the protected activity and the adverse 19 action.” Dawson v. Entek Int’l, 630 F.3d 928, 936 (9th Cir. 2011). However, “it is 20 causation, not temporal proximity itself, that is an element of [a] plaintiff’s prima facie 21 case.” Porter v. Cal. Dep’t of Corr., 419 F.3d 885, 895 (9th Cir. 2005) (internal quotation 22 marks omitted). Thus, whether there was a causal link is a “highly context-specific” 23 inquiry. Id. See also Ader, 465 F. Supp. 3d at 976 (applying Dawson and Porter to FLSA 24 claim). The plaintiff’s prima facie causation burden “is much less stringent than the ‘but- 25 for’ causation that a jury must find.” McNicol v. DMB Sports Club LP, 2020 WL 1323143, 26 *4 (D. Ariz. 2020). 27 Penske argues that Hyseni does not explain any connection between the filing of his 28 July 2019 lawsuit and the alleged adverse employment actions, and therefore he has failed 1 to meet his prima facie burden. (Doc. 24 at 14.) Hyseni responds that the alleged reduced 2 work hours, nonpayment for all hours worked, and camera installation occurred after 3 Hyseni filed his FLSA lawsuit and therefore must have resulted from the filing. (Doc. 25 4 at 12.) In support, Hyseni points to passages of his deposition testimony wherein he 5 generally asserts that these actions took place as a result of his earlier lawsuit and 6 complaints about nonpayment. (Doc. 25-2 at 26-27, 30-32, 68-79.) In reply, Penske argues 7 that Hyseni’s deposition testimony fails to provide “a clear causal link” between the July 8 2019 lawsuit and the allegedly adverse employment actions because he does not identify a 9 precise date on which the allegedly adverse employment actions occurred and some of his 10 cited testimony suggests the adverse actions occurred before he filed the lawsuit. (Doc. 26 11 at 8-9.) 12 Hyseni has failed to demonstrate a causal link even under the forgiving prima facie 13 standard. As with his nonpayment-for-work evidence, Hyseni relies heavily on his own 14 deposition testimony, which merely demonstrates that Hyseni has a generalized impression 15 that he was being retaliated against for filing his first lawsuit and fails to specify, with any 16 clarity, what actions were actually taken against him in retaliation or when the adverse 17 actions occurred. 18 For example, Hyseni testified that he was given different work assignments after he 19 filed the first lawsuit. (Doc. 25-2 at 26-27.) But the nature of these different work 20 assignments is unclear, and nowhere in Hyseni’s summary judgment briefing does Hyseni 21 otherwise articulate that these assignments form the basis of his retaliation claim. Hyseni 22 also testified that Penske cut his hours at some point after his first lawsuit was filed, leading 23 to his desire to file the instant case. (Id. at 30-32.) But Hyseni never articulates exactly 24 when this occurred: he states at one point that this occurred in April 2019 (before the first 25 lawsuit was filed) and at another point that it occurred in September 2019, and at another 26 point that it occurred at some unidentified time period after the filing of the first lawsuit. 27 (Id. at 30-32, 68.) He also testified generally about not being paid for all of the hours he 28 worked over the course of his employment with Penske, without drawing any connection 1 between this underpayment and the filing of the July 2019 lawsuit or asserting that this 2 problem began or worsened after he filed the lawsuit. (Id. at 69-79.) This type of ipse dixit 3 testimony, which is vague, conclusory, and unsupported by any other evidence, does not 4 suffice to show causation. Although Hyseni’s testimony, taken as true, suggests that some 5 of the complained-of conduct occurred after the filing of the July 2019 lawsuit, “the mere 6 fact that an adverse action follows a protected activity is not sufficient evidence of 7 retaliation to survive a motion for summary judgment.” Justice v. Rockwell Collins, Inc., 8 117 F. Supp. 3d 1119, 1138 (D. Or. 2015), aff’d 720 F. App’x 365, 366 (9th Cir. 2017) 9 (“The district court properly granted summary judgment . . . because Justice failed to raise 10 a triable dispute as to whether there was a causal connection between any protected activity 11 and an adverse action.”). Hyseni has not proffered any evidence of a causal link besides 12 vague and confusing assertions about adverse actions possibly occurring after the filing of 13 his first lawsuit, and this alone does not suffice. 14 2. Legitimate Reason For Alleged Adverse Employment Action 15 Alternatively, even if Hyseni had met his prima facie burden, which would have 16 shifted the burden to Penske to provide a legitimate, nonretaliatory reason for the adverse 17 employment actions, Penske has met that burden by introducing a substantial amount of 18 evidence. The evidence demonstrates: (1) there was no significant reduction in Hyseni’s 19 hours after he filed his FLSA complaint (Doc. 24-2 at 21-22 ¶¶ 14-20); (2) to the extent 20 there was any reduction in hours, it resulted from the undisputed fact that work on the 21 Trader Joe’s account fluctuates on a monthly, weekly, and even daily basis according to 22 client need (id. at 4 ¶ 13, 12-13); (3) the legitimacy and nonretaliatory nature of this work 23 fluctuation is demonstrated by Hyseni’s standing as the first- or second-most active driver 24 on the Trader Joe’s account (because even if Hyseni’s hours declined slightly in real terms, 25 they remained well above-average in relative terms, which contradicts the notion that 26 Hyseni was being retaliated against) (id. at 13, 21-22 ¶¶ 14-20); (4) the installation of the 27 SmartDrive cameras in Hyseni’s truck was done pursuant to a nationwide program for the 28 legitimate reason of improving Penske’s drivers’ safety (id. at 4 ¶¶ 14-15); and (5) the 1 consequences of the SmartDrive program have been a number of coaching/counseling 2 sessions about improving driver safety, which do not qualify as adverse employment 3 actions and in any event are legitimate and nonretaliatory (id. at 5 ¶¶ 19-21, 247-48). 4 Hyseni nowhere disputes the accuracy or authenticity of this evidence.7 5 3. Pretext 6 Because Penske has met its burden to show a legitimate, non-retaliatory reason for 7 the alleged adverse actions, the burden shifts back to Hyseni to show that Penske’s 8 proffered reasons are pretextual.8 9 A plaintiff “can prove pretext in two ways: (1) ‘indirectly by showing that the 10 employer’s proffered explanation is unworthy of credence because it is internally 11 inconsistent or otherwise not believable,’ or (2) directly, ‘by persuading the court that a 12 discriminatory reason more likely motivated the employer.’” Bowen v. M. Caratan, Inc., 13 142 F. Supp. 3d 1007, 1025 (E.D. Cal. 2015) (quoting Villiarimo v. Aloha Island Air, Inc., 14 281 F.3d 1054, 1062 (9th Cir. 2002)). This requires “specific, substantial evidence of 15 pretext,” such as “discriminatory or retaliatory statements or actions by the employer,” or 16 “specific and substantial facts” demonstrating that the employers actions were inconsistent 17 or not believable. Id. (internal quotation marks omitted). 18 In arguing for pretext, Hyseni nakedly asserts that Penske “had no legitimate 19 business reason that explains the failure to pay Defendant for all hours worked over 40 20 hours a week, reducing Plaintiff’s hours or installing a camera in the cab of Plaintiff’s truck 21 after he filed a lawsuit for non-payment of wages.” (Doc. 25 at 12.) As for the SmartDrive 22 program, Hyseni does not dispute that it is a national program aimed at increasing the safety 23 of all Penske drivers—the totality of his pretext argument is to note that the nationwide 24 program was applied to him “only after Plaintiff filed a lawsuit.” (Id. at 12-13.) Moreover, 25 the only evidence cited to support any of these arguments is two pages of Hyseni’s
26 7 Furthermore, to the extent Hyseni’s theory is that one of the adverse employment actions was non-payment for work performed, there is no evidence of such non-payment, 27 as discussed in Part II.A.2 supra. 28 8 All of this assumes, of course, that Hyseni met his prima facie burden in the first instance, which is not the case. 1 deposition testimony describing cameras being installed in the truck. (Id.; Doc. 25-2 at 65- 2 66.) 3 These arguments, and the scant evidence supporting them, are insufficient for 4 Hyseni to carry his burden of showing pretext. Hyseni does not substantively engage with 5 the evidence or point to any evidence that casts doubt on the legitimate reasons Penske 6 proffers for the allegedly adverse actions. He has therefore not demonstrated that Penske’s 7 explanation is not believable or shown that Penske’s actions were more likely motivated 8 by a desire to retaliate. Plaintiffs that have shown pretext in other cases have offered far 9 more than what Hyseni offers here. Compare Ader, 465 F. Supp. 3d at 977-78 (burden on 10 pretext carried where plaintiff offered evidence that factually undermined defendant’s 11 purported bases for termination and showed that he received positive performance 12 evaluations and a promotion just before termination); Bowen, 142 F. Supp. 3d at 1026-28 13 (burden on pretext carried where witness testimony contradicted defendant’s asserted non- 14 retaliatory bases for termination and where other evidence suggested that one purported 15 basis for termination was “demonstrably false”). 16 At best, in arguing for pretext, Hyseni asserts that pretext can be inferred because at 17 least some of the allegedly adverse actions took place after his filing of the July 2019 18 lawsuit. But temporal proximity between the actions and the protected activity does not 19 establish pretext on its own. Cf. Behan v. Lolo’s Inc., 2019 WL 1382462, *5-6 (D. Ariz. 20 2019) (“The Court is unpersuaded by Plaintiff’s argument that the ‘very close’ timing 21 between her break requests, discrimination charge, and eventual termination suffices to 22 defeat summary judgment. . . . Though the timeline is certainly suggestive, Plaintiff’s 23 admission that she photographed customer information without permission raises questions 24 of motive that temporal proximity alone cannot overcome.”); Yount v. Regent Univ., Inc., 25 2009 WL 995596, *8 (D. Ariz. 2009) (“[T]emporal proximity standing alone is not 26 sufficient to raise a genuine issue with respect to pretext.”). 27 Thus, even if Hyseni were found to have met his prima facie burden, Penske has 28 carried its burden to show a legitimate, non-retaliatory reason for the complained-of actions 1 || and Hyseni has failed to carry his burden to show these reasons are pretextual. 2 Accordingly, 3 IT IS ORDERED that Penske’s motion for summary judgment (Doc. 24) is granted. The Clerk of Court shall enter judgment accordingly. 5 Dated this 2nd day of August, 2021. 6 7 fm ee” g f □ _o—— Dominic W. Lanza 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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