Ennis v. Two Men And A Truck International, Inc. et alMEMORANDUM BRIEF in Support of 59 MOTION for Summary Judgment as to Remaining Claims of Haskell Fuller, IV and Micah LindsayW.D. Ark.June 28, 2017IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS FAYETTEVILLE DIVISION IN RE TWO MEN AND A TRUCK LITIGATION CONSOLIDATED CASE NO. 5:16-CV-005255 BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AS TO REMAINING CLAIMS OF HASKELL FULLER, IV AND MICAH LINDSAY The consolidated plaintiffs, Robert Ennis, Haskell Fuller, IV, Lonnie Harris, and Micah Lindsay, filed this lawsuit against TMT Arkansas, Inc. (sometimes referred to herein as “TMT”) pursuant to the Fair Labor Standards Act, 29 U.S.C. §201 et seq. (“FLSA”) and the Minimum Wage Act of the State of Arkansas, ARK. CODE ANN. §11-4-201 et seq. (“AMWA”), alleging that they were not paid overtime wages and, further, that deductions from their paychecks brought their wages below minimum wage. TMT moved for partial summary judgment with respect to the plaintiffs’ overtime claims and by an Order entered on February 24, 2017, the motion was granted and the plaintiffs’ overtime claims were dismissed with prejudice. [Doc. 54] TMT now moves for summary judgment as to the remaining claims of the separate plaintiffs, Haskell Fuller, IV and Micah Lindsay. In paragraphs 58 and 65 of the plaintiffs’ First Amended Complaint, it is alleged that “unauthorized and impermissible deductions for the employer’s benefit, such as deductions for property damages, were regularly deducted from the Plaintiff’s paychecks.” TMT does not dispute Case 5:16-cv-05255-TLB Document 60 Filed 06/28/17 Page 1 of 6 PageID #: 1373 that some deductions were made in 2016 from the plaintiffs’ wages for uniforms and, under certain circumstances, for damage caused to customers’ property. TMT’s Employee Handbook provides on page 10 that drivers and movers are required to wear a uniform consisting of an approved Two Men and a Truck shirt, the cost of which will be deducted from their next paycheck. (See Exhibit “A” attached hereto.) Drivers and movers are also required to wear black slacks or shorts provided by the employee. TMT’s vice-president, Christi Baldwin, testified in her deposition that the employees pay only a portion of the cost of a $15 shirt. They may purchase Two Men and a Truck hats or other articles of clothing if they so choose, but those purchases (and any resultant deductions from the employees’ paychecks) are entirely voluntary. (Baldwin Depo. 33-38; Excerpts from Christi Baldwin’s deposition are attached hereto collectively as Exhibit “B”) Ms. Baldwin also testified in her deposition about pay deductions for damage to customers’ property. She explained that if damage is reported, then the company’s damage coordinator investigates the incident. If it is determined that the damage occurred as a result of the negligence of a TMT employee, then the cost to repair or replace the damaged item is split between the parties involved, with the cost deducted from the employees’ paychecks in an amount agreed upon by the company and the employee. (Baldwin Depo. 17-24) Deductions for damage to customers’ property are addressed on page 15 of the Employee Handbook. (See Exhibit “C” attached hereto.) TMT acknowledges that the FLSA prohibits the deduction of the cost of a required uniform or the cost of damage to customers’ property from an employee’s wages if to do so would reduce the employee’s wages below the minimum wage. See, e.g., Marshall v. Root’s Restaurant, Inc., 667 F.2d 559 (6th Cir. 1982); Juvera v. Salcido, 2013 U.S. Dist. LEXIS 176716 (2013). Such costs are considered to be in furtherance of the employer’s interests and, thus, reimbursable by the employer. 2 Case 5:16-cv-05255-TLB Document 60 Filed 06/28/17 Page 2 of 6 PageID #: 1374 29 U.S.C. §207(e)(2). Fact Sheet #16 published by the United States Department of Labor, Wage and Hour Division (attached hereto as Exhibit “D”), confirms that an employer may not take credit for uniforms or property damages in meeting its obligation to pay the minimum wage. Stated another way, an employee must still receive his minimum wage after uniform or damage deductions are made. The Fact Sheet also states that an employer may prorate deductions over a period of paydays provided the prorated deductions do not reduce the employee’s wages below the required minimum wage in any workweek. The minimum wage in the State of Arkansas for the year 2014 was $6.25 per hour and for the year 2016 was $8.00 per hour. (See Exhibit “E” attached hereto, which is the United States Department of Labor’s historical table showing the minimum wage requirements of each state. Arkansas’s 2014 minimum wage of $6.25 per hour and its 2016 minimum wage of $8.00 per hour are shown on page 6 of that table.) Mr. Fuller was employed by TMT for eight weeks in 2014 but no deductions were taken from his paychecks that year. With respect to 2016, a careful review of the wages paid to Mr. Fuller and Mr. Lindsay shows that even when all uniform (including possible voluntary uniform purchases) and property damage deductions are taken into account, these two employees still received in excess of $8.00 per hour for all weeks they worked for TMT that year. In other words, any deductions from their wages for uniforms and property damages did not reduce Mr. Fuller’s or Mr. Lindsay’s wages below minimum wage. Accordingly, as a matter of law, TMT has not violated the FLSA or the AMWA with respect to plaintiffs Fuller and Lindsay. Attached hereto as Exhibits “F” and “G” are spreadsheets showing the wages paid and the deductions taken from the paychecks issued to Mr. Fuller and Mr. Lindsay, along with copies of the back-up pay stub documentation for both employees. It is clear from these attachments that even 3 Case 5:16-cv-05255-TLB Document 60 Filed 06/28/17 Page 3 of 6 PageID #: 1375 when the uniform and damage deductions are subtracted from these two employees’ gross pay, they were still paid more than minimum wage for all of their hours worked. For example, looking at the spreadsheet for Haskell Fuller, IV (Exhibit “F”), for the week of June 2 through June 8, 2016, Mr. Fuller had gross wages of $490.90. Subtracting from that amount the $32.34 he received in tips and the $39.00 in uniform and damage deductions leaves the sum of $419.56 for hourly-paid work. Dividing $419.56 by 45, which is the number of hours he worked that week, results in an hourly wage of $9.32 per hour, which is well above the 2016 Arkansas minimum wage of $8.00 per hour. Looking down the spreadsheet column headed “ACTUAL HOURLY”, it is readily apparent that in each week he worked, Mr. Fuller was paid an effective hourly wage ranging from $8.33 to $10.20, but always more than the required minimum wage. Likewise, a review of plaintiff Micah Lindsay’s spreadsheet (“Exhibit G”) shows that for each week he worked, he was paid an effective rate ranging from $8.74 per hour to $12.27 per hour. In every week he worked, he, too, received more than minimum wage for his hours worked. Another way to look at the spreadsheets is to compare the columns headed “HOURLY PAY” with the ones headed “GROSS @ MINIMUM”. The “GROSS @ MINIMUM” column shows the amount of money Mr. Fuller and Mr. Lindsay were required by law to be paid (the minimum wage of $8.00 per hour multiplied by the total hours worked), while the “HOURLY PAY” column shows what they each actually received after uniform and damage deductions are subtracted. A comparison of those two columns shows that for every week they worked, both Mr. Fuller and Mr. Lindsay received more than they were required by law to be paid. Summary judgment is proper if the evidence, viewed in the light most favorable to the nonmoving party, shows that there is no genuine issue of material fact and that the defendant is 4 Case 5:16-cv-05255-TLB Document 60 Filed 06/28/17 Page 4 of 6 PageID #: 1376 entitled to entry of judgment as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). TMT of Arkansas, Inc. submits that there is no dispute as to any material fact with respect to application of the federal and Arkansas minimum wage laws in this case. Deductions taken from the paychecks issued to Haskell Fuller, IV and Micah Lindsay never reduced their wages below minimum wage and, thus, there has been no violation of the FLSA or the Arkansas Minimum Wage Act. Accordingly, TMT is entitled to judgment in its favor as a matter of law on the minimum wage claims of the separate plaintiffs Fuller and Lindsay, along with their associated claims for liquidated damages, costs and attorney’s fees. These remaining claims of plaintiffs Fuller and Lindsay must be dismissed with prejudice. Respectfully submitted, TMT ARKANSAS, INC., d/b/a TWO MEN AND A TRUCK/NW ARKANSAS, An Arkansas Corporation By /s/ Constance G. Clark Constance G. Clark #79033 Kelly Carithers #80006 DAVIS, CLARK, BUTT, CARITHERS & TAYLOR, PLC P.O. Box 1688 Fayetteville, AR 72702-1688 (479) 521-7600 (Telephone) (479) 521-7661 (Facsimile) cclark@davis-firm.com 5 Case 5:16-cv-05255-TLB Document 60 Filed 06/28/17 Page 5 of 6 PageID #: 1377 CERTIFICATE OF SERVICE I, Constance G. Clark, hereby certify that on this 28th day of June, 2017, I electronically filed the foregoing document with the clerk of the United States District Court for the Western District of Arkansas, using the electronic case filing system of the court, which will send notification of such filing to the following: Joshua Q. Mostyn and William Gene Horton, as well as other attorneys who have entered an appearance for notice of electronic filings. /s/ Constance G. Clark Constance G. 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