Opinion
Civil No. 1:02-CV-171 J.
April 5, 2005
MEMORANDUM OPINION AND ORDER
Plaintiff Michael S. Noorda filed his complaint against defendant Chaparral Fire Protection Inc. on December 20, 2002, civil no. 1:02-CV-171, in an effort to recover straight-time compensation, overtime compensation, liquidated damages, and attorney's fees and costs under the provisions of Section 16(b) of the Fair Labor Standards Act of 1983 ("FLSA"), 29 U.S.C. § 216(b) (2000).
Chaparral Fire Protection Inc. does not claim that its employees are exempt from overtime compensation under the FSLA, 29 U.S.C. § 213 (2000).
The matter was tried before the court in a three-day bench trial from January 10, 2005 to January 12, 2005. Mark Fitzgerald Bell of Marsden Bell, L.L.C. represented plaintiff Michael S. Noorda ("Mr. Noorda"). Steven R. Paul of the Armstrong Law Offices represented defendant Chaparral Fire Protection, Inc. ("CFP").
FACTUAL HISTORY
The following facts are either uncontroverted or based on the evidence presented at trial. Mr. Noorda is a former employee of CFP. CFP is a Utah corporation, having its principal place of business in the city of North Salt Lake, Davis County, State of Utah. CFP is an enterprise that provides design, fabrication and installation of sprinkler and other fire protection systems for commercial and residential buildings. Prior to termination, Mr. Noorda was an employee at CFP for approximately nine years. He worked as a field employee and sometimes as a foreman performing installation and service. Mr. Noorda was paid at an hourly rate for his work at CFP. This hourly rate increased over time as well as during work periods when Mr. Noorda worked as the supervisor or foreman of a particular job.The job sites where CFP employees worked were located at various places along the Wasatch Front in the State of Utah, and as far away as Cache County and Washington County, Utah.
CFP employees, including Mr. Noorda, were responsible for recording their hours worked each week on time cards supplied by CFP.
Mr. Noorda alleges that he was routinely required to report to the office and shop of CFP located in North Salt Lake prior to traveling to and from the various job sites, and that as a result, the time cards prepared by him and for which he was paid did not reflect the actual number of hours between the times that he actually began and ended work. Specifically, Mr. Noorda alleges that the time cards did not accurately record the time he traveled to and spent at the office and shop of CFP, pulling parts prior to arriving at the jobsite; and further, did not accurately record the time he returned to or left CFP's office and shop at the conclusion of each work day. Mr. Noorda claims that his time-keeping procedure was reflective of CFP policies and practices and that these policies and practices resulted in unreported and thus unpaid straight-time hourly wages, and overtime wages.
Mr. Noorda alleges that CFP management, directors and officers wilfully and wrongfully refused to compensate Mr. Noorda for additional straight-time and overtime hours worked.
In pertinent part, the FLSA provides that "no employer shall employ any of his employees . . . for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed." 29 U.S.C. § 207(a)(1) (2000).
Mr. Noorda's employment with CFP was terminated on or about November 7, 2002.
STANDARD OF LAW
To recover straight and overtime pay under the Fair Labor Standards Act, the burden rests upon the employee to show that he performed the work for which he was not properly compensated and to show the extent and amount of such work as a matter of just and reasonable inference. Plaintiff must establish hours actually worked, but the plaintiff's burden should not be made an impossible hurdle for the employee, and due regard must be given to the fact that the employer has the duty under § 211 of Title 29 to keep proper records of employment. Andersen v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946). When the employee proves that he did in fact perform overtime work for which he was not properly compensated and produces sufficient evidence to show the extent and amount of such work as a matter of just and reasonable inference, the burden shifts to the employer to come forward with evidence of the precise amount of the work performed or with evidence to negate the reasonableness of the inference to be drawn from the evidence of the employee. And if the employer fails to produce such evidence, it is the duty of the court to enter judgment for the employee, even though the amount be only a reasonable approximation. Mitchell v. Caldwell, 249 F.2d 10, 10 (10th Cir. 1957).
The Portal-to-Portal Act, 29 U.S.C. §§ 254 et seq. (2000) exempts certain activities from the requirements of the Fair Labor Standards Act. Exempt activities include those which are designated as follows,
(1) walking, riding or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and
(2) activities which are preliminary to or postliminary to said principal activity or activities,
which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities.29 U.S.C. 254(a) (2000). The Portal-to-Portal Act supports the inference that every contracting business has floating locations. But courts have struggled to define preliminary and postliminary activities. The most frequently cited test was set out by the Supreme Court in Steiner v. Mitchell, 350 U.S. 247 (1956). In determining whether an activity is exempt under the Portal-to-Portal Act, a court must decide if the employee has engaged in an activity that is "an integral and indispensable part of the principal activity." Id. at 256. Moreover, the Tenth Circuit has explained that "a definite standard cannot be fixed for determining what activities of an employee, performed before and after his hours of work, are an integral part of and indispensable to his principal activities covered by this section, but each case must be decided upon its peculiar facts." D.A. S. Oil Well Servicing, Inc. v. Mitchell, 262 F.2d 552, 552 (10th Cir. 1958). The entire picture and the industrial realities of the situation are unique and must be considered.
ANALYSIS
At trial, Mr. Noorda provided a general recollection and estimate of the hours he "worked" without compensation. He testified that he did not keep track of his time by start time and end time. ( See Trial Transcript, dated January 10, 2005 P.M. ("Jan. 10 P.M. Tr.") at 56:14-19.)
In support of his claims against CFP, Mr. Noorda asserts that CFP's formal policy was that their employees had to be at the shop at 6:30 a.m., before traveling to the jobsite.
Q. . . . Were you required to be at the Chaparral shop at any particular time?
Notably, Mr. Noorda testified that when a job site was located close to his home in Clearfield and thereafter Roy, he did not travel to the shop at 6:30 a.m., rather he drove directly to the job site. ( See Jan. 10 P.M. Tr. at 17:20-25; 18:1-25; 19:1-4.)
A. We were required to be there at 6:30.
Q. How do you know that?
A. Through a memo that we received in our checks one week.
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Q. Do you have a copy of that memo?
A. No, I don't.
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Q. What did the memo say?
A. The memo says as — it had like just the heading up top, and then it just said that we were required to be at the shop by 6:30.
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Q. And was that sent out just to you or was that sent out to everybody?
A. That was sent out to everybody.
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Q. And you don't have one in your possession?
A. No, I do not.
Q. Okay. Have you talked to other employees and tried to get copies to find out if they had a copy?
A. I have talked to one other employee. He does not have it.
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Q. Now prior to this date in 1995 or 1996, did you have an understanding of what time you needed to be at the Chaparral offices?
A. Yes, I did.
Q. And what was that?
A. 6:30.
Q. And how did you know that?
A. It was told to me through other people and through Bill Wright.
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( See Jan. 10 P.M. Tr. at 4:19-24; 5:9-10; 5:25; 6:1-3; 69:19-21; 70:8-13; 6:13-21.) Mr. Noorda asserts that the field workers were required to be at the CFP shop at 6:30 a.m. in order to pull parts, prepare for the job that day, and travel to the jobsite to begin work at 7:00 a.m. Mr. Noorda testified that "pulling parts" would take between ten to thirty minutes prior to leaving for the job site, and that this process was necessary to complete the job. ( See Jan. 10 P.M. Tr. at 9:24-25; 10:1-5.)
With the exception of Mr. Noorda's ex-wife, Charlene Noorda, no other witness testified to the existence of a memo or written policy which required workers to be at work by 6:30 a.m. to pull parts, although each of the employees did say consistently, that they were expected to be on the various job sites by 7:00 a.m. Dennis Strong, the current President of CFP testified that "pulling parts," if needed, would only take "minutes" because most of the material is prefabricated by the shop crew. ( See Trial Transcript, dated January 10, 2005 A.M. ("Jan. 10 A.M. Tr.") at 81:12-22, 82:17-21.)
( See Trial Transcript, dated January 11, 2005 A.M. ("Jan. 11 A.M. Tr.") at 29:5-8, 14-20.)
A former CFP employee Craig Hogan testified that he did not recall anything in writing that required employees to be at the CFP shop by 6:30 in the morning ( see Jan. 11 A.M. Tr. at 42:19-21), but that "it was common knowledge throughout the company that we [field employees] should be there at 6:30." (Jan. 11 A.M. Tr. at 36:18-20.)
Former owner of CFP (retired), Collins Maxfield, testified that there was never a policy that field crew employees were supposed to show up or report to the shop at 6:30 a.m., and that he did not recall any memo that required employees to be at the CFP shop by 6:30 in the morning. ( See Trial Transcript, dated January 11, 2005 P.M. ("Jan. 11 P.M. Tr.") at 8:3-17.) Regarding "pulling parts," Mr. Maxfield testified that it was the preference of the company that the employees call in and order any parts or equipment they might need for a job and then the field superintendent would see that the parts were delivered to the job site. ( See Jan. 11 P.M. Tr. at 14:4-5; 18:16-20.) Mr. Maxfield further testified that if employees were hanging out at the shop it was to catch a ride or to "go home." ( See Jan. 11 P.M. Tr. at 14:6-24.)
Russell Tower, a current employee of CFP also did not recall the existence of a memo or policy requiring field workers to be at the shop by 6:30 in the morning. ( See Jan. 11 P.M. Tr. at 35:19-25; 36:1-6.) Mr. Tower testified that employees must be at the job site by 7:00 a.m. He testified that he gets to the office at about 6:15 or 6:30 a.m. in order to car pool and be on the job site by 7:00 a.m. ( See Jan. 11 P.M. Tr. at 28:1-18.) Regarding "pulling parts," Mr. Tower said, if the parts are not delivered, he may stop by the shop to retrieve the parts, but that doing so would take five minutes at the most. ( See Jan. 11 P.M. Tr. at 32:9-17.)
Scott Dalrymple, a current employee of CFP, similarly did not recall the existence of a memo or policy requiring field workers to be at the shop by 6:30, and that if workers did arrive early, it was to congregate for a ride and to have enough time to travel to the job site by 7:00 a.m. ( See Jan. 11 P.M. Tr. at 61:14-25; 48:17-25; 48:7-16.) He further stated that if workers were at the shop after their shift it was simply to be dropped off, to hang out, or to catch a ride home. ( See Jan. 11 P.M. Tr. at 53:2-18.) Mr. Dalrymple also testified that grabbing parts would take a matter of a few minutes. ( See Jan. 11 P.M. Tr. at 50:22-25; 51:1.)
Bill Wright, a current employee of CFP, and Mr. Noorda's former field supervisor testified that he never drafted a memorandum requiring field workers to be at the shop at 6:30 a.m., and that CFP policy requires field workers to be on the job at 7:00 a.m. ( See Jan. 11 P.M. Tr. at 74:4-17; 80:19-25; 81:1-4; 72:20-23.) Mr. Wright similarly stated that if workers were there at 6:30, it was likely to get a ride or car pool to the job site. ( See Jan. 11 P.M. Tr. at 85:22-25; 86:1.) Mr. Wright said that field workers do not normally "pull parts" in the mornings, and that the field workers should call in any parts they need. However, if the field workers did pull parts themselves, it would take "five minutes." ( See Jan. 11 P.M. Tr. at 86:2-14; 94:8-24.)
Moreover, Mr. Noorda concedes that there are no records that specifically support his allegations for unpaid compensation. ( See Jan. 10 P.M. Tr. at 68:5-8, 21-25.) Mr. Noorda repeatedly admits that he does not have a specific recollection or specific documents that support his version of the hours that he worked on the jobs. Therefore, unlike the plaintiff in Mitchell v. Caldwell, Mr. Noorda does not possess any daily record that might furnish a basis for ascertaining the reasonable hours for which Mr. Noorda seeks compensation. Mitchell v. Caldwell, 249 F.2d 10, 12.
Mere estimates of hours of work performed, without more, are not sufficient evidence to show amount and extent of that work as a matter of just and reasonable inference in a suit to recover unpaid straight and overtime compensation. See Gilbert v. Old Ben Coal Corp., 407 N.E.2d. 170, 175 (Ill. 1980). The evidence in its totality is insufficient to make a prima facie case for Mr. Noorda. Mr. Noorda has simply not met his burden of proof in presenting identifiable facts that meaningfully support his claims for compensation against CFP.
Q. So other than your testimony and Exhibit 8, there is no way for us to know when you went to the shop and when you didn't?
A. No.
Q. You didn't keep track?
A. No.
Q. And it's your job to keep track, isn't it?
A. Keep track of the hours?
Q. Keep track of the time you worked?
A. I kept track of the time I worked on the job.
Q. Okay. But your responsibility is to keep track of the hours you worked; isn't that true?
A. Yes, it is.
Q. Okay. And you were able to do that for nine years, correct?
A. Right.
Q. And you never made a written complaint or written concerns to Chaparral about getting less pay than you were working?
A. No.
( See Jan. 10 P.M. Tr. at 100:6-25.) Mr. Noorda filled out and signed his own time-cards and had opportunity to document or complain about his purportedly uncompensated hours to his supervisor, Bill Wright or to Dennis Strong or Collins Maxfield. He did not complain to any of them. ( See Jan. 11 A.M. Tr. at 6:6-22.) Nor did Mr. Noorda ever document his "unpaid hours" in books or his own journals to assist him to obtain compensation. He was paid for the hours that he recorded and signed for on his time-cards. ( See Jan. 10 P.M. Tr. at 6:23-25; 7:1-6.)
Absent corroboration by other CFP employees, and absent proof of actual hours worked or a reasonable footing from one can draw a reasonable inference, Mr. Noorda has not met his burden.
Because the Court finds that Mr. Noorda has not met his burden of proof to show his work day began at 6:30 a.m., the Court need not reach the secondary question as to whether "pulling parts," picking up tools, and materials at the office or shop prior to or following work at the jobsite are "compensable activities" within the meaning of Section 254 of the Portal-to-Portal Act.
CONCLUSION
The Court finds in favor of defendant Chaparral Fire Protection Inc. against plaintiff Michael S. Noorda. Plaintiff's complaint is hereby DISMISSED with prejudice.
Let judgment be entered accordingly.