Sheaffer v. Superior Tank Lines Northwest Division LLC

• Court: District Court, W.D. Washington
• Decided: March 23, 2020
• Docket: 2:19-cv-00190
• Status: Unknown

Opinion

6 UNITED STATES DISTRICT COURT FOR THE 7 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 ) 9 MICHAEL SHEAFFER, ) ) CASE NO. 2:19-cv-00190-BJR 10 Plaintiff, ) ) ORDER DENYING IN PART AND 11 v. ) GRANTING IN PART DEFENDANT’S ) MOTION FOR SUMMARY JUDGMENT 12 SUPERIOR TANK LINES NORTHWEST ) DIVISION, LLC, ) 13 ) Defendant. ) 14 ____________________________________)

16 I. INTRODUCTION 17 Plaintiff Michael Sheaffer (“Plaintiff”) brought this action against his former employer 18 Defendant Superior Tank Lines Northwest Division, LLC (“STL”), alleging: (1) willful 19 withholding of wages; (2) wrongful termination in violation of public policy; and (3) sex 20 discrimination. Dkt. No. 1-2. On June 13, 2019, this Court dismissed Plaintiff’s wrongful 21 termination and sex discrimination claims. Dkt. No. 24. STL now moves for summary judgment 22 23 24 25 1 on Plaintiff’s remaining claim for willful withholding of wages. Dkt. No. 31.1 Plaintiff opposes 1 summary judgment. Dkt. No. 41. Having reviewed the motion, opposition thereto, the record of 2 3 the case, and the relevant legal authorities, the Court will deny the motion in part and grant the 4 motion in part. The reasoning for the Court’s decision follows. 5 II. BACKGROUND 6 The Court outlined the facts of this case in its Order Granting Defendant’s Motion to 7 Dismiss Without Leave to Amend. Dkt. No. 24. As relevant to Plaintiff’s remaining claim, STL, 8 a regional transportation company for refined petroleum products, hired Plaintiff in January 2017 9 to work at STL’s Tacoma location as a Diesel Mechanic/Shop Manager. Dkt. No. 31 at 2; Dkt. 10 11 No. 41 at 2. Plaintiff’s typical workday lasted from 8:00 AM to 4:00 PM, but his hours could 12 fluctuate between 7:30 AM to 4:30 PM. Dkt. No. 31 at 2. Mark Van Osdol, the Northwest regional 13 manager for STL, was Plaintiff’s supervisor. Dkt. No. 41 at 2. 14 As part of his duties, Plaintiff was required to maintain STL’s fuel tankers, manage the 15 Tacoma shop, and remain on call outside work hours to respond to road calls, which are calls from 16 STL truck drivers experiencing mechanical issues while on the road. Dkt. No. 41 at 2–3. Plaintiff 17 was also required to send Mr. Van Osdol shop spend reports, i.e., reports outlining the Tacoma 18 19 shop’s total monthly spending. Id. at 10. Other tasks included sending Mr. Van Osdol fault code 20 reports, which are “spreadsheets created in Microsoft Excel that contained fault codes produced 21 by the computers inside each of STL’s trucks.” Id. at 12. 22 23

24 1 STL has requested oral argument. Dkt. No. 31. The Court finds that oral argument is unnecessary and will 25 proceed on the papers. 2 According to STL, Plaintiff was required to report all the hours he worked in order to be 1 paid. See Dkt. No. 31 at 8; Dkt. No. 48 at 6. Mr. Van Osdol reviewed Plaintiff’s time records and, 2 3 if necessary, made corrections. Id. at 3. STL’s Human Resources conducted a final review of time 4 records, then processed payroll. Id. To keep track of road calls, which Plaintiff performed outside 5 of the office and therefore could not use the time clock to record his time, Mr. Van Osdol states he 6 would call Plaintiff and adjust the hours during the next morning meeting, or if the road call 7 occurred on a weekend, he would make sure that Plaintiff texted or emailed him the hours spent 8 on road calls. Dkt. No. 42-1 at 63:14–19. As for records of road calls, Mr. Van Osdol testified he 9 “generally tried to take notes on what the road call was.” Id. at 64:24–25. 10 11 On April 30, 2018, Plaintiff claims he submitted two weeks’ notice of his intent to resign 12 from STL to Mr. Van Osdol. Dkt. No. 41 at 17. Plaintiff claims he was terminated on May 4, 13 2018, prior to the expiration of his two-weeks. Id. On August 1, 2018, Plaintiff sent STL a letter 14 claiming unpaid wages for work he performed off-the-clock. Dkt. No. 41 at 18. STL reviewed 15 Plaintiff’s claim and issued him a check for $1,488.38 based on unpaid work for 375 emails, with 16 “five minutes of pay for every allegedly unpaid email, plus six months of interest at the rate of 17 18 12% on the full amount from the date of the first allegedly unpaid email.” Dkt. No. 31 at 4. STL 19 did not require Plaintiff to sign a settlement agreement or release of claims in exchange for cashing 20 the check, which he did shortly thereafter. Id. 21 On November 28, 2018, Plaintiff filed suit in the Superior Court of the State of Washington 22 for King County seeking additional unpaid wages, along with his claims for wrongful termination 23 in violation of public policy and sex discrimination. Dkt. No. 1-2. STL removed the case to this 24 Court on February 7, 2019. Dkt. No. 2. 25 3 In total, Plaintiff claims approximately 605 hours of work for which STL did not pay him. 1 Dkt. No. 41 at 15–16. Plaintiff claims that STL failed to pay him for numerous tasks and time 2 3 spent working, including (1) a one-year promised raise Plaintiff claims STL never honored, see 4 Dkt. No. 41 at 16–17; (2) road calls for which he was never compensated, id. at 7; (3) time spent 5 sending shop spend reports, id. at 10–11; (4) time spent reviewing and updating Mr. Van Osdol on 6 fault code reports, id. at 12; and (5) time spent responding to other work emails, phone calls, and 7 text messages outside of working hours, id. at 9–10, 13; see also Dkt. No. 50 at ¶ 2. 8 III. LEGAL STANDARD 9 To succeed on a motion for summary judgment, the movant must show that there is “no 10 11 genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 12 FED. R. CIV. P. 56(a). The movant bears the “initial responsibility of informing the district court 13 of the basis for its motion,” including “identifying those portions of the pleadings . . . which it 14 believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 15 477 U.S. 317, 323 (1986) (internal citations and quotations removed). “Where the moving party 16 will have the burden of proof on an issue at trial, the movant must affirmatively demonstrate that 17 no reasonable trier of fact could find other than for the moving party.” Soremekun v. Thrifty 18 19 Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). On an issue where the nonmovant bears the 20 burden of proof, however, “the moving party can prevail merely by pointing out to the district 21 court that there is an absence of evidence to support the non-moving party’s case.” Macareno v. 22 Thomas, 378 F. Supp. 3d 933, 940 (W.D. Wash. 2019) (citing Celotex Corp., 477 U.S. at 325). 23 Where the moving party meets its initial burden, the nonmovant must show that a genuine 24 issue of material fact exists for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). 25 4 Summary judgment should be entered against the nonmoving party if it fails “to make a sufficient 1 showing on an essential element of her case with respect to which she has the burden of proof.” 2 3 Celotex Corp., 477 U.S. at 323. 4 Facts are material if they “might affect the outcome of the suit under governing law.” 5 Williams v. PRK Funding Services, Inc., 596 B.R. 375, 379 (W.D. Wash. 2019) (citing Anderson, 6 477 U.S. at 248). A dispute is genuine “if the evidence is such that a reasonable jury could return 7 a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. 8 In considering a motion for summary judgment, the Court must view the evidence “in the 9 light most favorable to the nonmoving party.” Universal Cable Prod., LLC v. Atlantic Specialty 10 11 Ins. Co., 929 F.3d 1143, 1151 (9th Cir. 2019) (quoting Pension Tr. Fund for Operating Eng’rs v. 12 Fed. Ins. Co., 307 F.3d 944, 949 (9th Cir. 2002)). 13 IV. DISCUSSION 14 A. Plaintiff’s Non-Willful and Federal Claims 15 STL contends that Plaintiff’s response to its Motion for Summary Judgment “tacitly asserts 16 new claims” not pled in his complaint. Dkt. No. 48 at 4, 4 n.6. STL argues that the Court should 17 not allow Plaintiff to advance these new claims so late in litigation. Here, the claims at issue are: 18 19 (1) Plaintiff’s invocation of non-willful causes of action under Washington state law and (2) his 20 federal claims. 21 1. Plaintiff’s “non-willful” state claim 22 Plaintiff’s complaint is relatively sparse. In the relevant “Causes of Action” section, 23 entitled “Willful Withholding of Wages,” Plaintiff claims “STL willfully paid Mr. Sheaffer a lower 24 wage than the wages which STL was required to pay him under state and federal law.” Dkt. No. 25 5 1-2 at ¶ 3.3. Nowhere in his complaint does Plaintiff mention non-willful withholding of wages. 1 It is not until his response to STL’s Motion for Summary Judgment that Plaintiff makes arguments 2 3 invoking non-willful withholding of wages claims, citing RCW § 49.46.090 (Payment of amounts 4 less than chapter requirements) and RCW § 49.46.130 (Minimum rate of compensation for 5 employment in excess of forty-hour workweek). See Dkt. 41 at 20. 6 Under Washington law, there is a difference between willful withholding of wages under 7 RCW §§ 49.52.050 (Rebates of wages) and 49.52.070 (Civil liability for double damages)2 8 (included in the Wage Rebate Act) and non-willful failure-to-pay claims under RCW §§ 49.46.090 9 and 49.46.130 (included in the Minimum Wage Act). Thus, while STL was able to identify 10 11 Plaintiff’s claim as a Wage Rebate Act claim in its Motion for Summary Judgment, it was not on 12 notice as to claims under the Minimum Wage Act until cited in Plaintiff’s response to the summary 13 judgment motion. See generally Dkt. Nos. 31, 48. 14 Under Federal Rule of Civil Procedure 8, the allegations in a complaint must contain “a 15 short and plain statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. 16 P. 8(a)(2). Rule 8 is designed to give defendants “fair notice of what the plaintiff’s claim is and 17 18 the grounds upon which it rests.” Pickern v. Pier 1 Imports (U.S.), Inc., 457 F.3d 963, 968 (9th 19 Cir. 2006) (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002)). Ninth Circuit 20 “precedents make clear that where . . . the complaint does not include the necessary factual 21 allegations to state a claim, raising such claim in a summary judgment motion is insufficient to 22

24 2 RCW § 49.52.050 makes it a misdemeanor for an employer to willfully withhold an employee’s wages and RCW § 49.52.070, in turn, provides employees a cause of action against employers who violate RCW § 49.52.050. See 25 infra at 8–9. 6 present the claim to the district court.” Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1080 1 (9th Cir. 2008); see also Pickern, 457 F.3d at 968–69 (holding that a district court need not address 2 3 allegations raised for the first time in a response to a motion for summary judgment where 4 complaint failed to give adequate notice of the claim). A plaintiff may not use summary judgment 5 as a “procedural second chance to flesh out inadequate pleadings.” Wasco Prod., Inc. v. Southwall 6 Techs., Inc., 435 F.3d 989, 992 (9th Cir. 2006) (quoting Fleming v. Lind–Waldock & Co., 922 F.2d 7 20, 24 (1st Cir. 1990)); see also Williams v. Fed. Exp. Corp., No. 12-cv-0348, 2013 WL 2256227, 8 at *10 (W.D. Wash. May 22, 2013) (“[Plaintiff] may not assert new causes of action or theories of 9 recovery for the first time in her opposition to [Defendant]’s motion for summary judgment”). The 10 11 Court, therefore, rejects Plaintiff’s tacit and late attempt to assert non-willful state-law failure-to- 12 pay claims. 13 2. Plaintiff’s federal law claim 14 The same reasoning and conclusion applies to Plaintiff’s federal law claim. While 15 Plaintiff’s complaint does reference federal law, see Dkt. No. 1-2 (“STL willfully paid Mr. 16 Sheaffer a lower wage than the wages which STL was required to pay him under state and federal 17 law”) (emphasis added), it does so in the most cursory manner. Such a reference does not provide 18 19 proper notice to STL. Plaintiff did not raise the federal Fair Labor Standards Act (“FLSA”), 29 20 U.S.C. § 203, et. seq., until his response to summary judgment. See Dkt. No. 41 at 29–30. Even 21 there, Plaintiff merely stated that he is entitled to double damages based on STL’s withholding of 22 wages, citing 29 U.S.C. § 216(b). Id. at 29. This provision, in turn, permits employees to recover 23 against employers who violate 29 U.S.C. § 206 (Minimum wage) and 29 U.S.C. § 207 (Maximum 24 hours). Neither of these causes of action are for “willful withholding of wages.” See also Dkt. 25 7 No. 41 at 29 (citing 29 U.S.C. § 260); 29 U.S.C. § 260 (providing courts discretion to award no 1 liquidated damages in cases of employer good faith “[i]n any action . . . to recover unpaid minimum 2 3 wages, unpaid overtime compensation, or liquidated damages”) (emphasis added). Therefore, the 4 Court finds that Plaintiff’s general allusion to “federal law” did not provide STL with fair notice 5 of the grounds upon which Plaintiff’s claim rested. Without citation to statute, at the very least, it 6 is unclear which federal law the complaint sought to invoke. Plaintiff may not here assert a claim 7 under the FLSA. 8 Based on the foregoing, the only claim left in this matter is Plaintiff’s claim for willful 9 withholding of wages under the Wage Rebate Act, RCW §§ 49.52.050 and 49.52.070. 10 11 B. Plaintiff’s Willful Withholding of Wages Claim 12 Washington’s Wage Rebate Act provides employees with a private cause of action against 13 employers who “[w]ilfully [sic] and with intent to deprive the employee of any part of his or her 14 wages” pay an employee less than what they are owed, RCW § 49.52.050, and grants successful 15 employees double their withheld wage in damages as well as attorneys’ fees and costs, so long as 16 the employee does not “knowingly submit[]” to the violation, RCW § 49.52.070. 17 To be willful, the employer’s actions must be “knowing and intentional.” Chelan Cty. 18 19 Deputy Sheriffs' Ass'n v. Chelan Cty., 745 P.2d 1, 11 (Wash. 1987); see also Durand v. HIMC 20 Corp., 214 P.3d 189, 198 (Wash. Ct. App. 2009) (“[a]n employer's failure to pay wages due is 21 willful if the employer knows what he or she is doing [and] intends to do it”). A failure to pay is 22 willful “unless it was a result of ‘careless[ness] or err[or].’” Id. (quoting Washington State Nurses 23 24 25 8 Ass'n v. Sacred Heart Med. Ctr., 287 P.3d 516, 520 (Wash. 2012)).3 1 1. Plaintiff’s claim for willful withholding of wages for off-the-clock work 2 3 STL in its briefing denies that it failed to pay Plaintiff wages he was entitled, see Dkt. No. 4 48 at 3, but also asserts that if it did fail to pay Plaintiff for time he earned, the failure was 5 inadvertent and occurred because Plaintiff did not report the time to STL. See Def.’s Mot. for 6 Summ. J., Dkt. No. 31 at 6–8. According to STL, Plaintiff’s October 24, 2019 deposition makes 7 clear that “Plaintiff was paid for all hours that he reported to STL” and that “Plaintiff failed to 8 report his alleged additional hours worked to STL.” Id. at 7; see also Dkt. No. 48 at 6 (STL’s 9 Reply in Support of Motion for Summary Judgment stating “Plaintiff admits he never reported the 10 11 hours he now claims, so STL could not know about these unpaid hours. When Plaintiff reported 12 his time, as required under [STL’s reporting policy], STL paid him virtually every time.”). 13 Plaintiff responds that STL “had knowledge that [Plaintiff] was performing work off-the- 14 clock but did not ensure that his time was being recorded or he was being compensated.” Pl.’s 15 Resp. to Def.’s Mot. for Summ. J., Dkt. No. 41 at 1. To establish STL’s knowledge, Plaintiff 16 points to his own testimony that he spoke to his boss, Mr. Van Osdol, at least six times about 17 unpaid wages. Id. at 13–14; see also Dkt. No. 43 at ¶ 20 (January 2, 2020 Declaration of Michael 18 19 Sheaffer); Dkt. No. 49 at 42:7–43:9 (October 24, 2019 Deposition of Michael Sheaffer). STL, 20

22 3 Plaintiff argues that constructive notice that Plaintiff worked off-the-clock is enough to establish STL’s liability citing Reich v. Dep’t of Conservation, 28 F.3d 1076 (11th Cir. 1994) and Dixon v. City of Forks, No. 08-cv-5189, 23 2009 WL 1459447 (W.D. Wa. May 26, 2009). Dkt. No. 41 at 21–23. Both cases, however, involved non-willful maximum hours claims under the FLSA, 29 U.S.C. § 207, and, in Dixon, the Minimum Wage Act. See Reich, 28 24 F.3d at 1081–82; Dixon, 2009 WL 1459447, at *2, *6. The Court has already held that Plaintiff did not properly plead such claims. See supra at 5–8. Therefore, constructive knowledge is not the appropriate standard for 25 Plaintiff’s remaining willful withholding claim. 9 however, claims that the Court should disregard this testimony because the later-in-time 1 declaration conflicts with Plaintiff’s initial deposition. Dkt. No. 48 at 8. 2 3 After reviewing the record, the Court determines that Plaintiff has established a genuine 4 dispute of fact for trial. In his deposition, Plaintiff testified that he approached Mr. Van Osdol at 5 least six times about working “off-the-clock.” Dkt. No. 49 at 42:7–43:9. Plaintiff’s later-in-time 6 declaration confirms that he “raised the issue of [his] unpaid wages to Mr. Van Osdol at least six 7 times during [his] employment with STL.” Dkt. No. 43 at ¶ 20.4 8 By contrast, Mr. Van Osdol testified that Plaintiff never approached him about not being 9 paid for overtime work. See Dkt. No. 42-1 at 123:13–17 (“Q. Did [Plaintiff] ever tell you that he 10 11 felt like he wasn’t getting paid for all of his time? A. Never. Q. Never Once? A. Never.”). 12 Credibility determinations as well as STL’s willfulness in the face of Plaintiff’s lack of reporting 13 are for the jury to decide. See Anderson, 477 U.S. at 255. Thus, there is a genuine dispute of fact 14 precluding summary judgment over whether Plaintiff raised his concern over unpaid wages with 15 Mr. Van Osdol and the extent to which Mr. Van Osdol knew Plaintiff was working and not being 16 paid. 17 18 2. Plaintiff’s claimed entitlement to a raise 19 Plaintiff claims STL willfully withheld wages when it promised he would receive a raise 20 after working for the company for one year and then failed to institute the raise. Dkt. No. 41 at 21 22

23 4 These statements do not clearly conflict with Plaintiff’s deposition testimony. Therefore, the Court will not 24 preclude Plaintiff’s later-in-time declaration as a sham affidavit, as STL argues. See Van Asdale, 577 F.3d at 998– 99 (“the inconsistency between a party's deposition testimony and subsequent affidavit must be clear and 25 unambiguous to justify striking the affidavit”). 10 28–29. Specifically, Plaintiff claims that at the start of his employment he and STL agreed to start 1 him at $33.00 per hour, give him a raise to $34.00 per hour after 90 days, and finally a raise to 2 3 $35.00 per hour after one year. Id. at 3. Plaintiff claims that he received the raise from $33.00 per 4 hour to $34.00 per hour, but not from $34.00 per hour to $35.00 at year’s end. Dkt. No. 49 at 5 35:9–16. 6 Plaintiff’s contention that he was owed a raise does not raise a triable dispute of fact. By 7 his own admission, Plaintiff’s raise was contingent on STL’s approval. Dep. of Michael Sheaffer, 8 Dkt. No. 49 at 36:12–20. Plaintiff acknowledges that STL never tendered this approval. Id. at 9 36:24–37:25. Therefore, STL’s failure to increase Plaintiff’s wages did not constitute a willful 10 11 withholding of wages that it was obligated to pay him. See RCW § 49.52.050 (“. . . shall pay any 12 employee a lower wage than the wage such employer is obligated to pay such employee by any 13 statute, ordinance, or contract”) (emphasis added). The Court will grant summary judgment as to 14 this claim. 15 3. Knowing Submission 16 STL claims that, whether or not Plaintiff can establish willfulness, he cannot succeed on 17 his claims because he knowingly submitted to the underpayment. Dkt. No. 48 at 10–13. An 18 19 employee knowingly submits “when he or she intentionally defers to his or her employer the 20 decision as to whether, if ever, he or she will be paid.” Durand v. HIMC Corp., 214 P.3d 189, 199 21 (Wash. Ct. App. 2009) (citing Chelius v. Questar Microsystems, Inc., 27 P.3d 681, 682–683 22 (Wash. Ct. App. 2001)). 23 Based on his testimony that he raised the issue of his unpaid overtime wages with Mr. Van 24 Osdol, Plaintiff has created a dispute of fact over whether he knowingly submitted to the 25 11 underpayment. See supra at 9–10. Taking Plaintiff’s testimony as true, as it must at this stage, 1 the Court determines that STL has failed to establish its knowing submission defense. 2 3 V. CONCLUSION 4 For the foregoing reasons, the Court hereby DENIES in part and GRANTS in part 5 Defendant’s Motion for Summary judgment. Dkt. No. 31. 6

7 DATED this 23rd day of March, 2020. 8

9 _______________________________ BARBARA J. ROTHSTEIN 10 UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 12