United States District Court, M.D. Florida, Tampa Division
ALFRED W. THOMAS, Plaintiff,
WASTE PRO USA, INC. and WASTE PRO OF FLORIDA, INC., Defendants.
Charlene Edwards Honeywell United States District Judge.
matter comes before the Court on Defendant Waste Pro USA,
Inc.’s Motion for Summary Judgment and Incorporated
Memorandum of Law (Doc. 185), Plaintiff’s response
thereto (Doc. 206), Defendant Waste Pro USA Inc.’s
reply (Doc. 215), Waste Pro of Florida, Inc.’s Motion
for Summary Judgment and Incorporated Memorandum of Law (Doc.
187), Plaintiff’s response thereto (Doc. 207),
Defendant Waste Pro of Florida, Inc.’s reply (Doc.
218), Plaintiff’s Amended Motion for Partial Summary
Judgment and Incorporated Supporting Memorandum of Law (Doc.
197), Defendant Waste Pro USA, Inc.’s response thereto
(Doc. 210), Defendant Waste Pro of Florida, Inc.’s
response thereto (Doc. 211), and Plaintiff’s reply
(Doc. 221). Defendants both move for summary judgment and
Plaintiff moves for partial summary judgment as to liability.
Doc. 185, Doc. 187, Doc. 197.
Court, having considered the motions, being duly advised in
the premises and for reasons described herein, will deny
Defendant Waste Pro USA, Inc.’s Motion for Summary
Judgment (Doc. 185), will grant in part and deny in part
Waste Pro of Florida, Inc.’s Motion for Summary
Judgment (Doc. 187) and deny Plaintiff’s Amended Motion
for Partial Summary Judgment (Doc. 197).
BACKGROUND AND FACTS
a collective action filed pursuant to § 216(b) of the
FLSA by Plaintiff Alfred W. Thomas (“Thomas” or
“Plaintiff”) pertaining to the pay of certain
“Helpers” employed by Defendants Waste Pro USA,
Inc. (“Waste Pro USA” or “WP USA”),
and Waste Pro of Florida, Inc. (“Waste Pro of
Florida” or “WP Florida”) (collectively,
“Defendants”), which alleges willful violations
of the FLSA. Doc. 111 ¶¶ 1, 64, 72. Waste Pro USA
is the parent company to various subsidiaries who provide
professional solid waste collection and disposal and
recycling services in nine states pursuant to various
commercial, municipal, subscription or military contracts.
Id. ¶ 23, Doc. 130 ¶ 23, Doc. 197-28 at 2;
Doc. 213 ¶ 4. One of those subsidiaries is Waste Pro of
Florida. Doc. 111 ¶ 23, Doc. 131 ¶ 23; Doc. 213
Second Amended Complaint raises two causes of action: (1)
violation of the FLSA by Defendants, jointly and severally,
by failing to pay Plaintiff and other Helpers time and a half
overtime premium pay when they worked more than forty hours
per week, and (2) violation of the FLSA by Waste Pro USA by
failing to pay Plaintiff and other Helpers time and a half
overtime premium pay when they work more than forty hours per
week. Doc. 111 ¶¶ 58-73.
was founded by John J. Jennings, who is the Chairman of the
Board and Chief Executive Officer (“CEO”) of WP
USA. Doc. 197-27 at 7:8-9; Doc. 197-30 at 2. Jennings is also
the CEO of WP Florida. Doc. 206-1 at 3211-14. WP USA operates
in nine states, including Florida, Georgia, North Carolina,
South Carolina, Alabama, Mississippi, Louisiana, Arkansas,
and Tennessee. Doc. 197-30 at 2. WP USA is “one of the
largest, full-service, vertically integrated waste management
companies.” Id. at 3.
Vice Presidents act as the CEOs of their area, but report to
Jennings. Doc. 206-1 at 32:8-14. There are ten Regional Vice
Presidents. Doc. 197-30. The CEO of WP U.S. A hires Regional
Vice Presidents and the decision to fire a Regional Vice
President is made by Jennings or the Board of Directors of WP
USA. Doc. 213 ¶¶ 8-9. Jennings meets with the
Regional Vice Presidents roughly three times per year to
discuss the status of the regions. Id. ¶ 13.
Once every week, the Regional Vice Presidents conduct a
conference call to discuss the needs and success of their
regions. Id. ¶ 16.
subsidiary has its own Human Resources Manager. Doc. 205
¶ 17. Some subsidiaries, including WP Florida, has a
Human Resources Manager for each region. Id. ¶
Florida consists of five regions: southeast, central, north,
southwest, and coastal. Doc. 205 ¶ 1. Each region is
made up of divisions. Id. ¶ 3. Each region
within WP Florida is managed by a Regional Vice President,
and each division is managed by a Division Manager, who
reports to the Regional Vice President. Id.
¶¶ 2, 4. Depending on the size of the division,
there is also an Operations Manager or Site Manager who
reports to the Division Manager and who oversees Route
Supervisors or Route Managers. Id. ¶¶ 5,
6. Helpers report to Route Supervisors or Route Managers.
Id. ¶ 7.
Managers have the authority to determine schedules for
Helpers and staff the routes. Id. ¶ 8. The
number of hours worked by a Helper each day depends on his or
her assigned route. Id. ¶ 11. Additionally,
Division Managers have the authority to train and evaluate
Helpers, although WP USA provides guidelines related to
training. Id. ¶¶ 8, 16. Because Helpers
are laborers, most training occurs on the job, although
Helpers receive limited classroom training. Id.
rate of pay for Helpers varies among divisions and regions.
Id. ¶ 9. Some divisions start all Helpers at
the same pay rate, whereas others set Helpers’ rates
based on experience. Id. ¶ 10. WP USA maintains
employees’ 401(k)s and health insurance plans.
Id. ¶ 19.
and WP Florida are indisputably related to a certain extent.
Defendants urge in this proceeding that WP USA provides
guidance and administrative support to its subsidiaries,
including WP of Florida. See generally Doc. 210.
Banasiak testified during his deposition with respect to
various forms of support provided by WP USA, including human
resources support as needed with respect to specific
questions or issues (Doc. 206-1 at 58:19-59:12), provision of
a timekeeping system, ADP (Id. at 62:11-63:5), and
provision of an intranet site that hosts forms and data that
can be used by the subsidiaries (Id. at 63:7-15).
also has a corporate safety department, accounting
department, maintenance department, and sales department.
Id. at 66:7-16, 69:14-16. The WP USA safety
department provides information related to changes in safety
information, such as changes in Department of Transportation
regulations, via posting documents with such information on
the intranet. Id. at 70:19-22, 71:1-8. The
maintenance department is responsible for changes in
equipment and service for equipment. Id. at
72:15-16. For example, maintenance would advise of changes in
how often oil should be changed for trucks. Id. at
72:15-23. The WP USA maintenance department has a record of
the vehicles that are purchased by the regions. Id.
at 73:25-74:9. The WP USA accounting department evaluates
financial results and performance. Id. at 76:16-17.
The financial results handled by the WP USA accounting
department are generated by each region by a regional
controller. Id. at 77:3-5. The WP USA sales
department is a support mechanism for the field and does not
generate any sales. Id. at 79:3-6.
argues that WP USA and its subsidiaries are a single
enterprise and WP USA is a joint employer of the Helpers.
See generally Doc. 197. Plaintiff relies on evidence
that WP USA advertises itself as a waste removal company,
like its subsidiaries (Doc. 197-30), and Jennings is on the
Board of Directors of WP USA, is CEO of each subsidiary, and
delegates management to the Regional Vice Presidents, some of
whom oversee operations across several different subsidiaries
(Doc. 197-24, Doc. 197-27 at 7:7-9, 17:14-18, Doc. 197-28 at
2). Additionally, payroll for the subsidiaries is handled
locally, but managed by WP USA. Doc. 197-35. Moreover, the
subsidiaries may use documents with the WP USA logo on them
and, even if they have the power to change various documents,
such as an employee handbook, Defendants present no evidence
that any region actually made any changes. Doc. 197-41, Doc.
206-1 at 17-19, Doc. 206-14, Doc. 206-15, Doc. 206-16, Doc.
206-17. Plaintiff also relies on evidence that employees
applied for Helper positions through the WP USA webpage,
receive documents purportedly from WP USA, and understand
themselves to be WP USA employees. Doc. 206-14 ¶¶
5-8; Doc. 206-15 ¶¶ 1-7, Doc. 206-16 ¶¶
1-6, Doc. 206-17 ¶¶ 1-5.
are employees who load garbage, recycling, or other solid
waste into a rear-load truck. Doc. 197-2; Doc. 206-1 at
30:22-31:1. Helpers in WP Florida are paid a day rate,
although the starting pay differs by division and is set by
the division manager. Doc. 206-1 at 181:21-183:9-14. Most
Helpers employed by WP USA subsidiaries are paid via the day
rate method, although some are paid on an hourly basis. Doc.
197-4. A day rate is intended to compensate an employee for
his or her work that day, regardless of the number of hours
worked. Doc. 197-1 at 8, Doc. 197-10 at 61:9-17. More
specifically, divisions have routes to collect solid waste,
and Helpers have a daily task of picking up a route, and
receive a day rate for picking up that daily task. Doc. 206-1
at 91:12-19. Additionally, Helpers also receive
non-discretionary bonuses if they assist on other routes or
meet the criteria for performance bonuses. Id. at
95:24-96:2, Doc. 197-18; Doc. 213 ¶¶ 2-3.
respect to half-day rates, these were paid by various WP USA
subsidiaries, including WP Florida, until 2017. Doc. 206-1 at
124:1-125:25. The half day rate was not paid anywhere in WP
Florida after August 24, 2017. Doc. 186-1 ¶ 14.
for day rate workers in WP Florida is calculated by
multiplying each hour worked over 40 hours by one-half of the
workers’ regular rate, which is calculated by dividing
the total compensation by the total hours worked. Doc. 197-1
at 9. The workers’ total compensation for the week
includes their day rate, their half day rate, and
non-discretionary bonuses. Doc. 187 at 3.
Disputed Facts as to Pay Method
Vice President for the West Coast of Florida, Keith Banasiak,
testified during his deposition that the half day rate is
“compensation for something less than what the daily
task would be.” Doc. 206-1 at 124:1-6. When asked
whether it was triggered by hours, Banasiak stated that he
would describe the half day rate as a task. Id. at
126:5-11. He further explained that “if an employee . .
. has a set task to do, but” the helper is also asked
to do something that was not “his normal daily task,
” such as coming in on a weekend to clean the yard, he
would be paid the half day rate. Id. at 126:11-17.
Plaintiff argues that Defendants have a common practice of
paying the half day rate if Helpers work 4.0 hours or less in
a day. Doc. 197 at 11. To support this assertion, Plaintiff
cites to an e-mail from Judi Craigo, the Director of Benefits
for WP USA (Doc. 197-29), to Tia Epps, a regional human
resources representative for Georgia, North Carolina, and
South Carolina, in response to Epps’ question of
“after how many hours a person has worked do we pa[y]
them the FULL Day Rate?” Doc. 197-13. Craigo’s
response states “Less than 4 hours = ½ Day[;] 4
hours or more = 1 Full Day.” Id. Plaintiff
also relies on an e-mail exchange between Craigo, Shannon
Early, who is the Director of Human Resources for WP USA, and
Trish Reid, who is a human resources manager for the
“Southern Region of WastePro USA.” Doc. 197-14.
The exchange concerns how to explain the overtime rate for a
day rate employee. Id. In the exchange, Reid states
that she is hesitant to use a supplied spreadsheet because
employees did “not understand it” and it shows
that a specific employee was being paid a low overtime rate.
Id. at 2. Reid suggests explaining the overtime rate
by stating, in relevant part, that day rate employees
“are not paid time and a half like hourly employees are
because [day rate employees] earn a day rate for the day. As
long as [day rate employees] work at least 4.00 hours they
get their whole day rate.” Id.
contends that this case is similar to a prior case against WP
Florida, Andreu v. Waste Pro of Florida, et al., No.
17-60926-CIV-WPD (S.D. Fla.). That case involved a lawsuit by
a driver employed by WP Florida who alleged that WP
Florida’s day rate compensation practice violated the
FLSA and entitled him to unpaid overtime compensation. Doc.
197-5. There, the court denied a motion for summary judgment
filed by WP Florida, that is similar to WP Florida’s
Motion for Summary Judgment in this case. Doc. 207-1, Doc.
207-2. The case proceeded to a jury trial and the jury
returned a verdict in favor of the Andreu plaintiff.
Previous Reviews of WP Florida Pay Methods
Florida relies on prior reviews of its pay method by the
Department of Labor (“DOL”). More specifically,
the DOL conducted an audit of WP Florida’s compliance
with the FLSA’s overtime provisions for the period
between August 6, 2011 through August 5, 2013. Doc. 187-1 at
11-23. The DOL Audit indicates that “employees were
paid on a daily fee basis, however the firm accurately paid
for their overtime hours.” Id. at 18. The
Audit explains that “employees received the same rate
for each day of work, ” and, therefore, received half
their regular rate for hours worked over 40 per week.
Id. Additionally, the auditor does not conclude that
this was altered by the payment of bonuses. Id. at
20. The auditor explains that “[b]onuses were divided
by all hours worked during the same week in which the bonus
was allocated in order to obtain the additional amount
originally not included in the regular rate. Once the new
rate was obtained, it was then divided by ½ and then
multiplied by all the hours worked over 40 during the same
conducted another investigation of WP Florida for the period
of March 15, 2014, to March 14, 2016. Id. at 25-30.
The report indicates that “[m]ost drivers and helpers
[were] paid a day rate.” Id. at 25. The
investigation was conducted because an employee complained
that he or she was not paid proper overtime because he
received only half time for his or her daily rate.
Id. at 27. With respect to the half day rate, the
investigator concludes that this “was still a flat rate
without regard to the number of hours worked and did not
result in an overtime violation.” Id. at
27-28. The investigation concluded that “the drivers
and helpers . . . were paid a daily rate intended to cover
all hours worked, ” and were paid half time for hours
worked in excess of 40 per week, there was no FLSA violation.
Id. at 28.
The Motions for Summary Judgment
filed a Motion for Summary Judgment requesting judgment with
respect to three issues: (1) that Defendants’ day rate
overtime pay violates the FLSA; (2) that WP USA employs
Plaintiff and Helpers; and (3) that WP of Florida is
collaterally estopped from asserting its good faith
affirmative defense in this case. Doc. 197 at 23-24.
moved for summary judgment on the basis that it does not
employ Plaintiff or any Opt-In Plaintiff. Doc. 185. WP USA
argues that the record evidence shows that it does not
control Plaintiff’s or other Helpers’ conditions
of employment. Id.
Florida moved for summary judgment and argues that its
compensation methodology is consistent with the FLSA, 29
C.F.R. § 778.112 is not the only permissible method for
compensating day rate employees, and occasional instances in
which Helpers were paid the half day rate did not invalidate
WP Florida’s compensation methodology. Doc. 187 at
8-15. WP Florida also argues that summary judgment is
appropriate for Helpers who are not adversely affected by any
common policy or plan of WP Florida. Id. at 15-17.
judgment is appropriate when the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, show there is no genuine issue as to any
material fact and that the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex
Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91
L.Ed.2d 265 (1986). The moving party bears the initial burden
of stating the basis for its motion and identifying those
portions of the record demonstrating the absence of genuine
issues of material fact. Celotex, 477 U.S. at 323;
Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256,
1259-60 (11th Cir. 2004). That burden can be discharged if
the moving party can show the court that there is “an
absence of evidence to support the nonmoving party’s
case.” Celotex, 477 U.S. at 325.
the moving party has discharged its burden, the nonmoving
party must then designate specific facts showing that there
is a genuine issue of material fact. Id. at 324.
Issues of fact are “genuine only if a reasonable jury,
considering the evidence present, could find for the
nonmoving party, ” and a fact is “material”
if it may affect the outcome of the suit under governing law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248-49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In determining
whether a genuine issue of material fact exists, the court
must consider all the evidence in the light most favorable to
the nonmoving party. Celotex, 477 U.S. at 323.
However, a party cannot defeat summary judgment by relying
upon conclusory allegations. See Hill v. Oil Dri Corp. of
Ga., 198 Fed.App’x 852, 858 (11th Cir. 2006).
standard of review for cross-motions for summary judgment
does not differ from the standard applied when only one party
files a motion, but simply requires a determination of
whether either of the parties deserves judgment as a matter
of law on the facts that are not disputed. Am. Bankers
Ins. Grp. v. United States, 408 F.3d 1328, 1331 (11th
Cir. 2005). The Court must consider each motion on its own
merits, resolving all reasonable inferences against the party
whose motion is under consideration. Id. The
Eleventh Circuit has explained that “[c]ross-motions
for summary judgment will not, in themselves, warrant the
court in granting summary judgment unless one of the parties
is entitled to judgment as a matter of law on facts that are
not genuinely disputed.” United States v.
Oakley, 744 F.2d 1553, 1555 (11th Cir. 1984) (quoting
Bricklayers Int’l Union, Local 15 v.
Stuart Plastering Co., 512 F.2d 1017 (5th Cir. 1975)).
Cross-motions may, however, be probative of the absence of a
factual dispute where they reflect general agreement by the
parties as to the controlling legal theories and material
facts. Id. at 1555-56.
FLSA states that, except as otherwise provided,
[N]o employer shall employ any of his employees who in any
workweek is engaged in commerce . . . or is employed in an
enterprise engaged in commerce . . . 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). Time and a half overtime pay is
the presumed amount to which workers are entitled as overtime
pay. Falken v. Glynn Cty., Ga., 197 F.3d 1341, 1345
(11th Cir. 1999).
argue that the Court should not consider the evidence
Plaintiff submits in support of his Motion for Summary
Judgment because it is not authenticated and is not
self-authenticating. Doc. 210 at 2-4; Doc. 211 at 1-4.
Defendants, apparently, did not realize that a 2010 amendment
to the Rule 56(c) allows parties to submit evidence that can
be presented in an admissible form at trial, and requires the
opposing party to object to the evidence on the basis that it
“cannot be presented in a form that would be admissible
in evidence.” Fed.R.Civ.P. 56(c)(2).
Rule of Civil Procedure 56(c)(1) directs that a party must
support its assertion that a fact cannot be genuinely
disputed by “citing to particular parts of materials in
the record, including depositions, documents, electronically
stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials.”
This may be objected to by the other party on the basis that
“a fact cannot be presented in a form that
would be admissible in evidence.” Fed.R.Civ.P.
56(c)(2). The practice commentary to Rule 56 explains that
“parties who want the court to consider documentary
evidence must be sure to include it in the record and to make
sure that it is properly authenticated (usually by affidavit)
and otherwise admissible.” Fed.R.Civ.P. 56, Rules and
Commentary (citing Woods v. City of Chi., 234 F.3d
979, 988 (7th Cir. 2000)). The commentary further explains
that the party submitting documents that are not
self-authenticating may “meet the authentication
requirement by attaching the documents to an affidavit of a
witness who can authenticate them, ” Federal Rule of
Civil Procedure 56, Rules and Commentary (citations omitted),
or “through deposition testimony, ” id.
to 2010, a party was required to authenticate documents for
them to be considered in support of summary judgment.
However, Rule 56 was amended in 2010 so that authentication
is no longer required until an objection is raised that the
evidence cannot be submitted in an admissible form.
Abbott v. Elwood Staffing Servs., Inc., 44 F.Supp.3d
1125, 1134 (N.D. Ala. 2014) (quoting Foreword Magazine,
Inc. v. OverDrive, Inc., No. 1:10-cv-1144, 2011 WL
5169384, at *2 (Oct. 31, 2011)). The advisory committee
explained the amendment, stating that such an
“objection functions much as an objection at trial,
adjusted for the pretrial setting, ” and that
“[t]he burden is on the proponent to show that the
material is admissible as presented or to explain the
admissible form that is anticipated.” Fed.R.Civ.P. 56,
Advisory Comm. Notes.
Defendants do not raise a sufficient objection to the
documentary evidence submitted by Plaintiff to support his
Motion for Summary Judgment because they do not argue, as
Rule 56 requires an objection to do, that the evidence
“cannot be presented in a form that would be admissible
evidence.” Fed.R.Civ.P. 56(c)(2). Accordingly, the
Court will consider the documents provided by Plaintiff to
support his Motion for Summary Judgment.
establish that two entities are a single enterprise, a
plaintiff must demonstrate: (1) related activities; (2)
unified operation or common control; and (3) a common
business purpose. Donovan v. Easton Land & Dev.
Co., 723 F.2d 1549, 1551 (11th Cir. 1984). Because the
FLSA is to be construed liberally, Dunlop v. Ashy,
555 F.2d 1228, 1234 (5th Cir. 1977), the Court must construe
the definition of “enterprise” liberally,
Williams v. Johnny Kynard Logging, Inc., No.
2:11-CV-2138-VEH, 2013 WL 2107658, at *6 (N.D. Ala. May 10,
2013). Whether two entities constitute an enterprise is a
question of law for the court to decide. Cabral v. Lakes
Café Sports Bar & Grill, Inc., No.
09-21128-CIV, 2010 WL 1372457, at *3 (S.D. Fla. Mar. 31,
2010) (citing Tafalla v. All Fla. Dialysis Serv.,
Inc., No. 07-80396, 2009 WL 151159, at *9 (S.D. Fla.
Jan. 21, 2009)).
establishing that two entities are a single enterprise does
not establish that both are potentially liable. Patel v.
Wargo, 803 F.2d 632, 636 (11th Cir. 1986). Instead,
whether entities are a single enterprise is relevant to
determining coverage under the FLSA. Id. at 635. To
establish liability for two entities, the plaintiff must show
that there is a joint employer relationship. Id.
(“There is no suggestion in the language of the [FLSA]
that an employer is responsible to other employers’
employees, unless of course there is a joint employer
WP USA does not contest whether it is a covered employer
under the FLSA. Doc. 210 at 6. Because whether WP Florida and
WP USA are a single enterprise is not determinative of
liability, the issue on which Plaintiff seeks summary