Rodems v. Temperature-Control Incorporated

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Shane Rodems, No. CV-22-00237-TUC-SHR

10 Plaintiff, Order Re: Summary Judgment 11 v.

12 Temperature-Control Incorporated, et al.,

13 Defendants. 14 15 Pending before the Court is Defendants Temperature-Control Incorporated and 16 Tony Bohard’s motion for summary judgment. (Doc. 28.) For the following reasons, the 17 Court grants Defendants’ motion.1 18 I. BACKGROUND 19 The following facts are undisputed. 20 Plaintiff Shane Rodems began working for Defendant Temperature Control in 21 August 2021 as a Service Technician and was paid an hourly rate. (DSOF ¶ 1; PSOF ¶ 1.)2 22 As a Service Technician, Plaintiff went to clients’ homes to sell and repair HVAC units. 23 (DSOF ¶ 2; PSOF ¶ 2.) Defendants provided Plaintiff with a company vehicle. (DSOF 24 ¶ 3; PSOF ¶ 3.) Soon after starting work for Defendants, Plaintiff asked his service

25 1Defendants requested oral argument. (Doc. 28 at 1.) The Court finds oral argument will not aid in resolution of the issues raised and, therefore, denies this request. See LRCiv 26 7.2(f); Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998) (“[A] district court can decide the issue without oral argument if the parties can submit their papers to the court.”); see 27 also Bach v. Teton Cnty. Idaho, 207 F. Appx 766, 769 (9th Cir. 2006) (“Due process does not require the district court to hold oral argument before ruling on pending motions.”). 28 2DSOF refers to the Defendants Statement of Facts (Doc. 29); PSOF refers to the Plaintiff’s Statement of Facts (Doc. 31). 1 manager if he could receive a salary, and the service manager agreed. (DSOF ¶ 7; PSOF 2 ¶ 7.) During Plaintiff’s first pay period as a salaried employee, he worked more than 40 3 hours one week and was properly compensated for that overtime. (DSOF ¶ 9, Exh. E; 4 PSOF ¶ 9.) Plaintiff, however, believes he worked additional overtime for which he was 5 not compensated and, therefore, he filed this suit. (Doc. 1.) 6 The parties vehemently disagree on the accuracy of Temperature Control’s method 7 of tracking Plaintiff’s work hours. Temperature Control used “service call tracking 8 software [called Service Titan] and GPS tracking devices on its vehicles in order to, among 9 other reasons, verify its employees’ work hours.” (DSOF ¶ 4, Exh. C.) Based on the 10 tracking data, Defendants assert that from September 2021 until Plaintiff’s employment 11 ended in March 2022, Plaintiff did not work more than 40 hours in a week. (DSOF ¶ 10– 12 11, Exh. G–FF.) Plaintiff disputes this and argues: “The time records Defendants[] claim 13 tracked Plaintiff’s hours worked are a reflection of the hours Plaintiff spent on site at a 14 service call, not the hours he spent working.” (DSOF ¶ 11; Rodems Decl. (Doc. 30-1) 15 ¶¶ 9–10, 14–24.) Plaintiff asserts he “worked for at least an hour before arriving at 16 [his]service call and at least an hour after his service call.” (Id.) Additionally, “Plaintiff 17 worked ‘on call’ weeks during his employment during which he worked evenings and 18 weekends, which are not reflected in Defendants’ time records.” (Id.) 19 Plaintiff brought a single claim against Defendants for violating the overtime 20 provisions of the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. (“FLSA”). (Doc. 1.) 21 Plaintiff seeks his allegedly unpaid wages and liquidated damages under the FLSA. (Id.) 22 Defendants have moved for summary judgment, arguing “Plaintiff’s claim for 23 unpaid overtime fails as a matter of law because he did not work any overtime.” (Doc. 28 24 at 4 .) 25 II. LEGAL STANDARD 26 Under Rule 56 of the Federal Rules of Civil Procedure, upon a party’s motion, a 27 court “shall grant summary judgment if the movant shows that there is no genuine dispute 28 as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 1 Civ. P. 56(a). A genuine dispute exists if “the evidence is such that a reasonable jury could 2 return a verdict for the nonmoving party,” and material facts are those “that might affect 3 the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 4 U.S. 242, 248 (1986). In evaluating a motion for summary judgment, the evidence of the 5 nonmoving party “is to be believed, and all justifiable inferences are to be drawn in his 6 favor.” Anderson, 477 U.S. at 255. 7 A court must grant summary judgment “if the movant shows that there is no genuine 8 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 9 Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). If 10 the movant meets its initial responsibility, the burden shifts to the nonmovant to 11 demonstrate the existence of a factual dispute and that the fact in contention is material, 12 i.e., a fact that might affect the outcome of the suit under the governing law, and that the 13 dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict 14 for the nonmovant. Anderson, 477 U.S. at 248, 250; see Triton Energy Corp. v. Square D. 15 Co., 68 F.3d 1216, 1221 (9th Cir. 1995). The nonmovant need not establish a material 16 issue of fact conclusively in its favor. First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 17 U.S. 253, 288-89 (1968). However, he must “come forward with specific facts showing 18 that there is a genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio 19 Corp., 475 U.S. 574, 587 (1986) (internal citation omitted); see Fed. R. Civ. P. 56(c)(1). 20 III. DISCUSSION 21 The FLSA regulates the wage, hour, and working conditions of American 22 employees. See 29 U.S.C. § 201, et seq. Under the FLSA, non-exempt employees who 23 work more than forty hours in a week are entitled to overtime compensation. 29 U.S.C. 24 § 207(a)(1). To prevail on an FLSA overtime claim, “Plaintiff bears the burden of proving 25 that: (1) Defendants were employers under the FLSA; (2) Plaintiff was an employee under 26 the FLSA; (3) Plaintiff worked overtime; and (4) Plaintiff was not paid overtime for 27 overtime hours worked.” Rogers v. Brauer Law Offices, PLC, CV-10-1693-PHX-LOA, 28 2012 WL 426725, at *3 (D. Ariz. Feb. 10, 2012). The parties do not dispute Defendants 1 are employers and Plaintiff was an employee under the FLSA who was not exempt from 2 the overtime provisions of the FLSA. Therefore, the only dispute is whether Plaintiff 3 worked more than 40 hours in a single week and is owed overtime compensation. 4 An employee bringing an action for unpaid overtime with liquidated damages has 5 the burden of proving he performed work for which he was not properly compensated. 6 Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 686–87 (1946), superseded by statute 7 on other grounds. However, if the employer fails to keep accurate and adequate records 8 of the employee’s hours, the employee’s burden is lightened. Id. at 687. Then, the 9 employee “must only (1) prove that he has in fact performed work for which he is owed 10 overtime, and (2) produce ‘sufficient evidence to show the amount and extent of that work 11 as a matter of just and reasonable inference.’” Ader v. SimonMed Imaging Inc., 465 F. 12 Supp. 3d 953, 964 (D. Ariz. 2020) (quoting Mt. Clemens, 328 U.S. at 687). Once the 13 employee establishes the amount and extent of overtime worked as a matter of just and 14 reasonable inference, the burden shifts to the employer to produce “evidence of the precise 15 amount of work performed or [] evidence to negative the reasonableness of the inference 16 to be drawn from the employee’s evidence.” Mt. Clemens, 328 U.S. at 687–88. 17 A. Accuracy of Defendants’ Records 18 Plaintiff asserts Defendants’ time records “are inaccurate and unreliable because 19 those records were not designed to track working hours” and “simply show when Plaintiff 20 was out for a service call, not when he started or ended work.” (Doc. 30 at 5; Rodems 21 Decl. ¶ 8–9, 21–24.) According to Plaintiff, “without using the time clock function, Service 22 Titan would not consider [him[ ‘clocked in’ until [he] arrived at [his] first service call and 23 clicked the ‘on-site’ button on the app.” (Rodems Decl. ¶ 22.) For example, Plaintiff states 24 that “[a]round three days per week, [he] went to Defendants’ offices at 7:00 am to complete 25 paperwork, order and pick up parts, or attend meetings.” (Id. ¶ 15.) That is, Plaintiff 26 asserts, Defendants’ employment records only show when Plaintiff was out for a service 27 call, not when he was “actually at work.” (Id. ¶ 21.) 28 Defendants argue Plaintiff cites “no legal authority for the proposition that an 1 employer’s records of its employee’s work hours must be ‘designed to track working hours’ 2 to be reliable and accurate.” (Doc. 32 at 4.) Defendants’ time records describe Plaintiff’s 3 work each day in detail, including time, location, type of work, customer name, and the 4 start and stop time for each “job.” (Docs. 29-1, 29–92.) Descriptions for the type of work 5 Plaintiff performed included time spent stocking his work truck (id. at 30), time spent on 6 “non-job events” (id. at 32, 34), idle time (id. at 40), meetings (id. at 32, 34, 36, 38, 40, 42, 7 44, 48, 52, 54), office time (id. at 36, 38, 44, 46, 48, 52, 54), and acquiring parts (id. at 32, 8 34, 36). Additionally, Defendants argue the records illustrate that on many days the 9 Plaintiff began work between 7:00 and 8:00 am. (Doc. 32 at 3; Doc. 29-1 at 42–54.) Many 10 of these 7:00 am start times were due to meetings. (Doc. 29-1 at 32, 34, 36, 38, 40, 42, 44, 11 48, 52, 54.) Therefore, Defendants assert, the records of Plaintiff’s hours are sufficiently 12 detailed to determine whether Plaintiff worked more than 40 hours in any given week. (Id. 13 at 3.) 14 The time records included in Defendants’ statement of fact cover the entire period 15 Plaintiff worked for Temperature Control and do not appear to have any significant gaps 16 or alterations that would indicate a lack of reliability. (Doc 29-1 Exhs. G–FF.) Further, 17 Defendants’ time records directly contradict Plaintiff’s assertion that Defendants only 18 tracked when he was on a service call. Rather, Defendants’ time records include a variety 19 of work activities outside of being on a service call, including Plaintiff’s time spent in 20 meetings and in the office, stocking the truck, and picking up parts. Therefore, the Court 21 concludes Defendants’ time records are accurate and adequate. 22 Accordingly, Plaintiff’s burden remains unchanged, so he must prove “he 23 performed work for which he was not properly compensated.” Mt. Clemens, 328 U.S. at 24 686–87. 25 B. Plaintiff’s Evidence of Overtime Worked 26 Plaintiff states he was “generally scheduled to work eight-hour shifts, but due to the 27 variant nature of HVAC repair work, [he] hardly ever worked exactly eight hours. 28 Sometimes it was less . . . but that was rare, and [he] usually worked 10- or 11-hour shifts.” 1 (Doc. 30-1 ¶ 14.) Therefore, Plaintiff asserts his “regular workweek was almost always 2 more than 40 hours and averaged around 50 to 60 hours per week.” (Id. ¶ 13.) In support 3 of these assertions, Plaintiff makes several generalized statements about his work schedule 4 and the type of work he performed. (Id. ¶ 15–20.) 5 Defendants counter that Plaintiff’s statements in his declaration are unsupported and 6 contradict his prior disclosure in violation of Federal Rule of Civil Procedure 37(c)(1). 7 (Doc. 32 at 5.) According to Defendants, “Plaintiff previously disclosed his alleged 8 damages in the form of a chart” and, in that chart, “allege[d] he worked between 40 and 46 9 hours during five specific weeks; and he worked approximately 57 hours, 83 hours, and 10 112 hours during three other workweeks.” (Id. at 5, Exh. A.) Plaintiff did not allege he 11 worked any overtime during the other 18 workweeks of his employment. (Id.) Defendants 12 argue the information in Plaintiff’s declaration directly contradicts his prior disclosure, so 13 he cannot use the additional information to defeat Defendants’ motion for summary 14 judgment. (Id. at 6.) 15 Under Rule 37(c)(1), “[i]f a party fails to provide information . . . required by Rule 16 26(a) or (e), the party is not allowed to use that information or witness to supply evidence 17 on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is 18 harmless.” The information Plaintiff included in his declaration was known and accessible 19 when initial disclosures were made to Defendants. The late disclosure also exposes 20 Defendants to new, additional time that Plaintiff now claims to have worked overtime, thus 21 increasing the claimed overtime owed. Therefore, the Court concludes the late disclosure 22 is not substantially justifiable and is potentially harmful. Accordingly, the Court declines 23 to consider it. See Fed. R. Civ. P. 37(c)(1). 24 Comparing the specific 8-week period in which Plaintiff claims to have worked 25 overtime against Defendants’ time records, the Court concludes there is no genuine factual 26 dispute. Plaintiff has only made conclusory statements about how much time he worked 27 and has provided no evidence to support these statements. By Plaintiff’s own admission 28 “after [he] started getting a salary, [he] quit tracking [his] hours.” (Doc. 30-1 ¶ 12.) 1 || Plaintiff has failed to carry the burden of showing he worked more than 40 hours in a single 2|| week and is therefore entitled to compensation for that overtime. 3 IV. CONCLUSION 4 Defendants have shown, based on the undisputed material facts, that Plaintiff did not 5 || work overtime for which he was not properly compensated. Therefore, Defendants have 6 || shown they are entitled to judgment as a matter of law on Plaintiff's FLSA claim. See Fed. 7 R. Civ. P. 56(a) 8 Accordingly, 9 IT IS ORDERED Defendants’ motion for summary judgment (Doc. 28) is GRANTED. 11 IT IS FURTHER ORDERED the Clerk of Court shall enter judgment accordingly and close this action. 13 Dated this 24th day of August, 2023. 14 15 /} “tt Taal "7 J vinited States District Judge 18 19 20 21 22 23 24 25 26 27 28

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