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Thomas v. Waste Pro USA, Inc.

United States District Court, M.D. Florida, Tampa Division

September 30, 2019

ALFRED W. THOMAS, Plaintiff,


          Charlene Edwards Honeywell United States District Judge.

         This 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.

         The 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).


         This is 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 ¶ 4.

         The 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.

         A. Undisputed Facts

         1. Company Structure

         WP USA 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.

         Regional 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.

         Each subsidiary has its own Human Resources Manager. Doc. 205 ¶ 17. Some subsidiaries, including WP Florida, has a Human Resources Manager for each region. Id. ¶ 18.

         WP 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.

         Division 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. ¶¶ 13-14.

         The 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.

         WP USA 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).

         WP USA 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.

         Plaintiff 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.

         2. Pay Methods

         Helpers 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.

         With 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.

         Overtime 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.

         B. Disputed Facts as to Pay Method

         Regional 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.

         However, 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.

         C. Andreu

         Plaintiff 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. Doc. 197-8.

         D. Previous Reviews of WP Florida Pay Methods

         WP 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 workweek.” Id.

         The DOL 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.

         E. The Motions for Summary Judgment

         Plaintiff 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.

         WP USA 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.

         WP 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.


         Summary 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.

         When 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).

         The 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.


         The 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).

         A. Plaintiff’s Evidence

         Defendants 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).

         Federal 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.

         Prior 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.

         Here, 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.[2]

         B. Single Enterprise

         To 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)).

         However, 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 relationship.”).

         Here, 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 judgment, ...

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