Randolph v. PowerComm Construction, Inc.

7 F. Supp. 3d 561, 22 Wage & Hour Cas.2d (BNA) 526, 2014 U.S. Dist. LEXIS 39819
CourtDistrict Court, D. Maryland
DecidedMarch 25, 2014
DocketCivil Case No. PWG-13-1696
StatusPublished
Cited by21 cases

This text of 7 F. Supp. 3d 561 (Randolph v. PowerComm Construction, Inc.) is published on Counsel Stack Legal Research, covering District Court, D. Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Randolph v. PowerComm Construction, Inc., 7 F. Supp. 3d 561, 22 Wage & Hour Cas.2d (BNA) 526, 2014 U.S. Dist. LEXIS 39819 (D. Md. 2014).

Opinion

MEMORANDUM OPINION

PAUL W. GRIMM, District Judge.

Plaintiffs bring this collective action under the Fair Labor Standards Act (“FLSA”) and the Maryland Wage and Hour Law (“MWHL”), alleging that they worked in excess of forty hours per week as traffic controllers for Defendant Power-Comm Construction, Inc. (“PowerComm”) but were not paid sufficient overtime wages. Defendants have moved for summary judgment, arguing that Plaintiffs were independent contractors and not employees covered by the FLSA and MWHL. Plaintiffs respond that, even though they were classified as independent contractors by PowerComm, they actually qualify under the federal and state statutes as employees. Plaintiffs also seek permission to provide notice to other potential plaintiffs. Because a reasonable jury could find that Plaintiffs are employees under the FLSA and MWHL, I deny Defendants’ motion for summary judgment and grant Plaintiffs’ motion to provide notice.

I. FACTUAL BACKGROUND

In reviewing a motion for summary judgment, the Court considers the facts in the light most favorable to the non-mov-ant, drawing all justifiable inferences in that party’s favor. Ricci v. DeStefano, 557 U.S. 557, 585-86, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009); George & Co., LLC v. Imagination Entm’t Ltd., 575 F.3d 383, 391-92 (4th Cir.2009); Dean v. Martinez, 336 F.Supp.2d 477, 480 (D.Md.2004). Unless otherwise stated, this background is composed of undisputed facts. Where a dispute exists, I consider the facts in the light most favorable to Plaintiffs. See Ric-ci, 557 U.S. at 585-86, 129 S.Ct. 2658; George & Co., 575 F.3d at 391-92; Dean, 336 F.Supp.2d at 480.

Defendant PowerComm is an electrical utility construction company that “ ‘specializes in construction, upgrading, and maintenance of overhead and underground distribution systems.’ ” First Kwasnik Deel. ¶ 3-4, Mem. of Points & Authorities in Support of Defs.’ Mot. for Summ. J. as to Pl.’s Individual Claims (“Defs.’ Randolph Summ. J. Mem.”) Ex. 1, ECF No. 21. Defendant David Kwasnik, Sr. has been President and CEO of PowerComm since 2010. Id. ¶ 2.

Plaintiffs Gregory Randolph and Dana Brown both have worked as “flaggers,” or traffic controllers, for PowerComm. See Randolph Deck ¶ 1, Pl.’s Opp’n to Defs.’ Mot. for Summ. J. as to Pl.’s Individual [564]*564Claims (“Randolph Summ. J. Opp’n”) Ex. 1, ECF No. 24; Brown Decl. ¶1, Pis.’ Opp’n to Defs.’ Mot. for Summ. J. as to PI. Dana Brown (“Brown Summ. J. Opp’n”) Ex. 1, ECF No. 37. As a flagger, Randolph and Brown each “directed traffic through PowerComm construction sites or other temporary traffic control zones past an area using signs or flags. [They were] responsible for maintaining the safety and efficiency of traffic, as well as the safety of road workers, while allowing construction, accident recovery or other tasks to proceed.” Randolph Decl. ¶2; Brown Decl. ¶ 2.

PowerComm has provided traffic control services to Pepeo since 2002, id. ¶3, but otherwise does not perform traffic services, and most of its work does not require traffic control. First Kwasnik Decl. ¶ 6. Kwasnik asserts that PowerComm “has used independent contractors to provide traffic control services to Pepeo” and that “[s]ome of PowerComm’s traffic controllers schedule their work directly with Pepco’s other contractors and not with PowerComm.” Id. ¶ 13.

While working for PowerComm, both Randolph and Brown became certified as flaggers by the American Traffic Safety Services Association, Randolph Decl. ¶4; Brown Decl. ¶ 4, which was a necessary prerequisite to work as a flagger, First Kwasnik Decl. ¶ 9. Randolph was trained for this qualification by Milton Roosevelt, whom he describes as a PowerComm supervisor, Randolph Decl. ¶ 4, but whom Kwasnik characterizes as “an independent contractor pursuant to having signed IRS form W-9,” Second Kwasnik Decl. ¶ 7, Defs.’ Reply in Further Support of Defs.’ Mot. for Summ. J. as to Pis.’ Individual Claims (“Defs.’ Reply/Randolph”) Ex. 18, ECF No. 33, and who worked for another company, First Kwasnik Decl. ¶ 23.1 Brown was trained on the job by Randolph. Brown Decl. ¶ 4.

Plaintiffs were required to provide their own “personal protective equipment,” which included boots, reflective clothing, hard hats, and eye and ear protection, First Kwasnik Decl. ¶¶ 8, 10, but Power-Comm supplied flagging equipment and transportation to job sites, Randolph Decl. ¶ 9; Brown Decl. ¶ 9. “Some of Power-Comm’s traffic controllers work only part time.” First Kwasnik Decl. ¶ 16.

The parties disagree as to whether Plaintiffs worked for PowerComm. Plaintiffs both allege that they did. Randolph Decl. ¶ 1; Brown Decl. ¶ 1. Defendants allege that “PowerComm did not use its own traffic controllers, (including Gregory Randolph or Dana Brown).” Second Kwasnik Decl. ¶ 4. However, there is no dispute that both Randolph and Brown were paid by PowerComm for their work in a job that Defendants repeatedly have described as a “PowerComm traffic controller.” See Kwasnik, Jr. Decl. ¶¶ 3-15.

A. Gregory Randolph

Gregory Randolph alleges that he was required to call his crew foreman, Chester Brown, every morning to find out if there was work for him that day, and that he was required to work whenever Brown had work for him. Randolph Decl. ¶¶ 7-8. When there was work, Randolph would [565]*565report to a Pepeo yard, record his start time, and then drive to the worksite in a van provided by PowerComm. Id. ¶¶ 10-11. At the end of the day, Randolph would drive the van back to the Pepeo yard and. record his end time. Id. ¶ 12. Randolph often worked twelve-hour days, at a wage of $12.00 per hour irrespective of how many hours he worked. Id. ¶ 13. Randolph has attached to his Declaration several pay stubs, all of which indicate that he was paid for his work by PowerComm. See id. ¶ 14. Randolph’s income typically was reflected on a 1099 form from Power-Comm, but sometimes was recorded on a W-2 form. Id.

At some point, Randolph came to believe that he was entitled to time-and-a-half for work in excess of forty hours a week, and spoke to Kwasnik’s son, Dave Kwasnik, Jr. (“Kwasnik, Jr.”). Id. ¶ 16-17. Kwasnik, Jr. stated that he did not have any documentation for Randolph but otherwise would be willing to pay him overtime; Randolph was fired a few days later. Id. ¶¶ 19-20.2 Randolph avers that he did not receive overtime pay from June 12, 2010 through approximately March 2013, during which time he worked an average of fifty-five hours per week at a wage of $10.00 to $12.00 per hour, totaling approximately $11,797.50 in unpaid overtime. Id. ¶ 23.

Defendants dispute several of Randolph’s facts, and have introduced declarations stating that Chester Brown was the foreman for another contractor, Utility Lines, Inc., and that PowerComm did not determine Randolph’s work schedule or duties or sign off on his time sheets. First Kwasnik Decl. ¶¶ 19-21; Second Kwasnik Decl. ¶¶ 8-9; Salihu Decl. ¶¶ 7-11, Defs.’ Randolph Summ. J. Mem. Ex. 10, ECF No. 21; Puryear Decl. ¶¶ 6-10, Defs.’ Randolph Summ. J. Mem. Ex. 11, ECF No. 21.

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7 F. Supp. 3d 561, 22 Wage & Hour Cas.2d (BNA) 526, 2014 U.S. Dist. LEXIS 39819, Counsel Stack Legal Research, https://law.counselstack.com/opinion/randolph-v-powercomm-construction-inc-mdd-2014.