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Butler v. DirectSAT USA, LLC

United States District Court, D. Maryland

October 16, 2014

JEFFRY BUTLER, ET AL.
v.
DIRECTSAT USA, LLC, ET AL

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[Copyrighted Material Omitted]

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For Jeffry Butler, Individually, and on Behalf of All Others Similarly Situated, Derrick Green, Opt-In Plaintiff, Plaintiffs: Daniel Adlai Katz, Law Office of Gary M Gilbert and Associates PC, Silver Spring, MD; Jac A Cotiguala, PRO HAC VICE, Jac A Cotiguala and Associates, Chicago, IL; James B Zouras, Ryan F Stephan, PRO HAC VICE, Stephan Zouras LLP, Chicago, IL.

For Charles N. Dorsey, Individually, and on Behalf of All Others Similarly Situated, Plaintiff: Daniel Adlai Katz, Law Office of Gary M Gilbert and Associates PC, Silver Spring, MD; Ryan F Stephan, Stephan Zouras LLP, Chicago, IL.

For Directsat USA, LLC, Unitek USA, LLC, Unitek Global Services, Inc., Defendants: Colin D Dougherty, Jonathan David Christman, PRO HAC VICE, Fox Rothschild LLP, Blue Bell, PA; Dirk Densford Haire, Nicholas T Solosky, Fox Rothschild LLP, Washington, DC; John Augustine Bourgeois, Katrina J Dennis, Kramon and Graham PA, Baltimore, MD.

For Armand Tanoh, Romulus Albu, Herman Altson, Ronald Cromer, Grayson Leslie Stone, Ralph Roosevelt Jones, Derrick A. Bryant, Eric Eugene Leftwood, Ellsworth Patrick Newman, Kevin Anthony Rogers, Mark Robert Monroe, Claimants: Daniel Adlai Katz, Law Office of Gary M Gilbert and Associates PC, Silver Spring, MD; Jac A Cotiguala, PRO HAC VICE, Jac A Cotiguala and Associates, Chicago, IL; James B Zouras, Ryan F Stephan, PRO HAC VICE, Stephan Zouras LLP, Chicago, IL.

For Dwayne Anthony Grainger, Moses A. Nicholls, Shaka Harrington, Christopher Thomas Adams, Lionel Murray, William Earl Kilson, III, Allen Gilbert Leith, Spencer Lee Shaffer, Robert C. Nash, Kami Edmundo Boven, Ebrima Gikeneh, Steven Andre Poindexter, Claimants: Daniel Adlai Katz, LEAD ATTORNEY, Law Office of Gary M Gilbert and Associates PC, Silver Spring, MD; Jac A Cotiguala, LEAD ATTORNEY, PRO HAC VICE, Jac A Cotiguala and Associates, Chicago, IL; James B Zouras, Ryan F Stephan, LEAD ATTORNEY, PRO HAC VICE, Stephan Zouras LLP, Chicago, IL.

For Mayhew Rupert Murphy, Claimant: Daniel Adlai Katz, LEAD ATTORNEY, Law Office of Gary M Gilbert and Associates PC, Silver Spring, MD; Jac A Cotiguala, PRO HAC VICE, Jac A Cotiguala and Associates, Chicago, IL; James B Zouras, Ryan F Stephan, PRO HAC VICE, Stephan Zouras LLP, Chicago, IL.

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MEMORANDUM OPINION

DEBORAH K. CHASANOW, United States District Judge.

Presently pending and ready for resolution in this Fair Labor Standards Act collective action case is a motion for summary judgment (ECF No. 257), filed by Defendants DirectSAT USA, LLC (" DirectSAT" ), UniTek USA, LLC (" UniTek" ), and UniTek Global Services, Inc (" UGS" ). Also pending are motions to seal filed by Defendants and Plaintiff Jeffry Butler. (ECF Nos. 265 and 270). The issues have been fully briefed and the court now rules, no hearing being deemed necessary. Local Rule 105.6.

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For the following reasons, Defendants' motion for summary judgment, and motion to seal will be granted in part and denied in part. Plaintiff Butler's motion to seal will be denied.

I. Background

Defendant DirectSAT, a subsidiary of UniTek and UGS, provides satellite installation services to DirecTV customers throughout the country. Plaintiff Jeffry Butler (" Plaintiff Butler" or " Butler" ) is a technician who previously installed, upgraded, and serviced DirecTV equipment at customer locations in Maryland, Virginia, and the District of Columbia.[1] Defendants classified Butler's position as non-exempt under federal and state wage and hour laws. Butler began working for Defendants as a technician in October 2007 and held this position until July 20, 2008, when he was promoted to warehouse manager. He typically worked six or seven days per week.

Technicians were paid pursuant to a " job rate" or " piece rate" system. Technicians would be given assignments at the beginning of the day, go out into the field and complete those assignments, report back as to the work performed, and be paid based on credits accounting for quantity and type of work, as opposed to an hourly wage.[2] Technicians were instructed to clock-in when they arrived at their first job-site and clock-out when they left their last job-site of the day. Plaintiff Butler alleges that he regularly worked more than forty hours per week without proper overtime compensation and, furthermore, was encouraged by Defendants to begin work before the start of his route and continue working after completing his last work order, thereby performing work without being paid. This alleged off-the-clock work included receiving work orders at home, mapping out his route, preparing satellite dishes, and loading and unloading equipment from his company vehicle. Butler also alleges that Defendants had a uniform policy and practice to encourage unpaid work and deny earned overtime.

On October 4, 2010, Plaintiff Butler brought suit against Defendants alleging violations of the Fair Labor Standards Act (" FLSA" ) (Count I), the Maryland Wage and Hour Law (" MWHL" ) (Count II), the Maryland Wage Payment and Collection Law (" MWPCL" ) (Count III), and the District of Columbia Minimum Wage Law (" DCMWL" ) (Count IV). (ECF No. 1). As to the FLSA claim, Butler sought to represent a collective of all technicians employed by Defendants in Virginia, Maryland, and the District of Columbia during the applicable statute of limitations period

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for unpaid overtime. Butler alleges that the collective is similarly situated in that they all had similar duties, performed similar tasks, were subjected to the same requirements under the FLSA to be paid overtime wages unless specifically exempted thereunder, were subjected to similar pay plans, were required to work and did work more than forty hours per week, and were not paid one and one-half times their regular rate for overtime worked. As to the Maryland and D.C. law claims, Butler sought to represent a class comprised of all technicians employed by Defendants during the applicable statute of limitations period in Maryland and D.C., respectively. Defendants filed a motion to dismiss and the court, through Memorandum Opinion and Order dated July 6, 2011, granted in part Defendants' motion, dismissing Butler's MWPCL claim (Count III).[3] (ECF Nos. 28 and 29). Plaintiff Butler has seemingly abandoned representing a class on his state law claims as he failed to move for conditional certification by the October 1, 2012 deadline. (ECF No. 79). On November 1, 2011, Butler moved for conditional certification of an FLSA collective action and to facilitate notice pursuant to 29 U.S.C. § 216(b). (ECF No. 41). On April 10, 2012, Plaintiff Butler's motion was granted and a collective consisting of all technicians based out of Defendants' Waldorf and Beltsville warehouses during the past three years was conditionally certified and notices were disseminated. (ECF No. 65 and 66). At one point, fifty-two (52) technicians initially declared their desire to be opt-in Plaintiffs, but many opt-in Plaintiffs have been dismissed for a variety of reasons, leaving Mr. Butler as the named Plaintiff and twenty-five (25) others as opt-in Plaintiffs (collectively " Plaintiffs" ).

On May 12, 2014, Defendants filed a motion for summary judgment as to the only named Plaintiff Jeffry Butler's claims. (ECF No. 257). Butler filed an opposition on July 16, 2014 (ECF No. 268), to which Defendants replied on August 15, 2014 (ECF No. 273). The parties each filed unopposed motions to seal certain exhibits attached to their filings. (ECF Nos. 265 and 270).

II. Motion for Summary Judgment

A. Standard of Review

A motion for summary judgment will be granted only if there exists no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party bears the burden of showing that there is no genuine dispute as to any material fact. No genuine dispute of material fact exists, however, if the nonmoving party fails to make a sufficient showing on an essential element of his or her case as to which he or she would have the burden of proof. Celotex, 477 U.S. at 322-23. Therefore, on those issues on which the nonmoving party has the burden of proof, it is his or her responsibility to confront the summary judgment motion with an affidavit or other similar evidence showing that there is a genuine dispute for trial.

In Anderson v. Liberty Lobby, Inc., the Supreme Court of the United States explained that, in considering a motion for summary judgment, the " judge's function

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is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." 477 U.S. at 249 (1986). A dispute about a material fact is genuine " if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248. Thus, " the judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the [nonmoving party] on the evidence presented." Id. at 252.

In undertaking this inquiry, a court must view the facts and the reasonable inferences drawn therefrom " in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ( quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962)); see also EEOC v. Navy Fed. Credit Union, 424 F.3d 397, 405 (4th Cir. 2005). The mere existence of a " scintilla" of evidence in support of the non-moving party's case is not sufficient to preclude an order granting summary judgment. See Anderson, 477 U.S. at 252.

A " party cannot create a genuine dispute of material fact through mere speculation or compilation of inferences." Shin v. Shalala, 166 F.Supp.2d 373, 375 (D.Md. 2001) (citation omitted). Indeed, this court has an affirmative obligation to prevent factually unsupported claims and defenses from going to trial. See Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993) ( quoting Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987).

B. Analysis

1. Statute of Limitations

Defendants first argue that Butler's claim is barred by the applicable statute of limitations. The FLSA provides for a two-tiered statute of limitations, depending on the standard of culpability a plaintiff can prove. 29 U.S.C. § 255(a). By default, a plaintiff must commence an FLSA action within two years of the date the cause of action accrued. If Butler can prove a " willful violation" of the FLSA, however, the period to commence an FLSA cause of action is extended to three years. Id.

In his answers to Defendants' interrogatories, Butler states that Defendants employed him as a technician from August 2007 to July 20, 2008.[4] (ECF No. 264). Thus, the outer limits of his FLSA claim extend to July 20, 2010, or to July 20, 2011, if he can prove willfulness. Butler filed his complaint in October 2010. Defendants contend, however, that because Butler is bringing a collective action, the statute of limitations did not toll until he filed a consent form opting-in to the collective action, despite the fact that he is a named Plaintiff.

At first glance, Defendants' argument seems needlessly formalistic, but it cannot be denied that " [c]ourts have repeatedly interpreted [29 U.S.C. § ] 256 as requiring all plaintiffs in an FLSA collective action, whether named or unnamed, to file written consents to toll the statute of limitations." Faust v. Comcast Cable Communs. Mgmt., LLC, No. WMN-10-2336, 2013 WL 5587291, at *3 (D.Md. Oct. 9, 2013). Indeed, the United States Court of Appeals for the Fourth Circuit noted, albeit in an unpublished opinion, that " [c]ase authority

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has interpreted the statutory sections as requiring all plaintiffs in a collective action under the FLSA to file written consents for statute of limitations purposes. . . . [S]igned consents filed after the filing of the complaint do not relate back to the date the complaint was filed." In re Food Lion, Inc., 151 F.3d 1029, 1998 WL 322682, at *13 (4th Cir. June 4, 1998) (unpublished table decision). These holdings are based on the precise language of the FLSA, which states that " [n]o employee shall be a party plaintiff to a [collective] action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought." 29 U.S.C. § 216(b); see also id. § 256 (stating that a collective action is commenced on the date on which complaint is filed if named plaintiff filed his written consent to become a party plaintiff or, if that situation does not exist, the subsequent date on which written consent is filed with the court).[5] Defendants contend that because Butler never filed a consent form and more than three years have passed since the last alleged wrongful action, he cannot bring an FLSA claim on behalf of a collective.

In his opposition, Butler does not dispute the overarching legal principle that every plaintiff to an FLSA collective action, even named plaintiffs, must file a written consent to be a party. Nor does he contend that he has ever filed a formal consent form. Instead, Butler argues that his verified answers to interrogatories and signed declaration provide the necessary consent to opt-in.

In Faust, Judge Nickerson collected what authority there is on the issue of what form a consent to participate in a collective action can take:

The FLSA requires only that a plaintiff give consent, to be filed with the court, in writing. 29 U.S.C. § 216(b). " While it is clear that some document in addition to the complaint must be filed, it is not clear what form the written consent must take, especially when the alleged party plaintiff is a named plaintiff." D'Antuono v. C& G of Groton, Inc., No. 3:11cv33 (MRK), 2012 WL 1188197, at *2 (D.Conn. Apr. 9, 2012). Courts have generally shown " considerable flexibility" with respect to the form of consent, Manning v. Gold Belt Falcon, LLC, 817 F.Supp.2d 451, 454 (D.N.J. 2011), requiring only that " the signed document verif[y] the complaint, indicate[] a desire to have legal action taken to protect the party's rights, or state[] a desire to become a party plaintiff." Perkins v. S. New England Tel. Co., No. 3:07-cv-967, 2009 WL 3754097, at *3 n.2 (D.Conn. Nov. 4, 2009).

Faust, 2013 WL 5587291, at *5 (alterations in original). Butler filed his signed answers to interrogatories on October 31, 2011, and his declaration in support of conditional certification on November 1, 2011. (ECF Nos. 257-4 and 257-5).

Butler's interrogatory answers and declaration are sufficient to constitute written consent to be a party plaintiff. The documents refer to the facts underlying the litigation and express his view that the alleged practices applied to all technicians. Furthermore, the signed documents filed by Butler are similar to those accepted as sufficient in Faust. See 2013 WL 5587291, at *6.

Defendants also argue that even accepting these documents as Butler's written consent that tolls the statute of

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limitations, none of the alleged wrongdoing falls within the three-year statute of limitations. Butler was last a technician on July 20, 2008, but he did not constructively opt-in until October 31, 2011, more than thirty-nine months later, and three months after the three-year statute of limitations ended. Consequently, they contend that Butler's claim is time-barred because it was filed outside the three-year limitations period.

In response, Butler argues that Defendants overlook a critical fact: he opted-in to an identical FLSA case against these same Defendants in the United States District Court for the Western District of Wisconsin: Espenscheid v. DirectSAT USA, LLC, et al. As the undersigned previously noted, the defendants are the same in both cases and there is substantial overlap in the claims. Butler v. DirectSat USA, LLC, 800 F.Supp.2d 662, 666 (D.Md. 2011). Butler filed his written consent in the other action on July 28, 2010 and opted-out on January 12, 2011.[6] He argues that his FLSA statute of limitations equitably should be tolled for the 168 days he was a plaintiff in Espenscheid.

" The statute of limitations for a plaintiff in a collective action is tolled after the plaintiff has filed a consent to opt in to the collective action, and begins to run again if the court later decertifies the collective action." Green v. Harbor Freight Tools USA, Inc., 888 F.Supp.2d 1088, 1105 (D.Kan. 2012). Where Defendants are the same and there is substantial overlap between the claims, tolling is sensible given that " the opt-in individual could have initiated his or her own action . . . [a]nd Defendants are not prejudiced because Defendants were on notice of the potential claims at the point that the individuals opted in." Burch v. Qwest Communs. Int'l, No. 06-3523 (MJD/AJB), 2010 WL 529427, at *5 (D.Minn. Feb. 4, 2010). Defendants argue that Butler has taken inconsistent positions on whether the claims in Espenscheid and this case are the same. The cases are sufficiently similar, however, so that the time a plaintiff spent as a plaintiff in Espenscheid should not count as part of the statute of limitations period. The time that Butler was an opt-in party in Espenscheid will toll the statute of limitations for this case. After accounting for the minimally applicable 168 day tolling period, Butler's statute of limitations period is approximately forty-one and one-half months (three years and 168 days), which extends the limitations period back to May 16, 2008 (three years and 168 days prior to October 31, 2011). Because Butler was a technician -- and subjected to policies allegedly violative of the FLSA -- through July 20, 2008, he has viable FLSA claims for the period between May 16, 2008 and to July 20, 2008, provided he can extend the FLSA's statute of limitations to three years by proving willfulness.

Defendants next argue that, even accepting Butler's version of the limitations period, his claim is untimely unless he can prove willfulness, which he cannot. Butler does not dispute that there is no scenario by which he falls within the normal two-year statute of limitations. Therefore, the only way his claim is timely is to extend the statute of limitations to three years by proving that Defendants committed willful violations of the FLSA. To establish willfulness, Butler must show that " the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the

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[FLSA]." McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133, 108 S.Ct. 1677, 100 L.Ed.2d 115 (1988). The Supreme Court noted that " willful" is considered synonymous with " deliberate" and " intentional." Id. " Mere negligence on the part of the employer with regard to compliance with the FLSA is not sufficient to prove willfulness." Gionfriddo v. Jason Zink, LLC, 769 F.Supp.2d 880, 890 (D.Md. 2011); see also Desmond v. PNGI Charles Town Gaming, LLC, 630 F.3d 351, 358 (4th Cir. 2011) (" Negligent conduct is insufficient to show willfulness." ). The employee bears the burden of proof when alleging a willful violation. Desmond, 630 F.3d at 358.

Butler contends that willfulness is a question of fact for the factfinder and the record contains sufficient evidence pertaining to Defendants' willfulness, including:

the deposition testimony of its own management personnel, the declaration of its General Manager Walter Hanson, time records, pay stubs, and [Butler's] own testimony showing [Defendants'] undisputed policy requiring pre- and post-shift work, but prohibiting [Butler] from recording such integral and indispensable pre- and post-shift activities on [his] timesheets. Additionally, Mr. Butler testified that company officials directed him not to record all of the time worked, which meant [he was] only supposed to record the time worked from arriving on site at [his] first job until completing [his] last job of the day.

(ECF No. 268, at 17). Mr. Hanson declares that he was the General Manger for DirectSAT from 2005 until January 31, 2010, overseeing approximately 110 technicians in Maryland and Virginia. He states that " [d]uring the first couple of years of my employment technicians were instructed not to record more than 40 hours per week on their timesheets." (ECF No. 268-5 ¶ 7). Mr. Hanson also stated that later, during a meeting with Mr. Dan Yannantuano, DirectSAT's President, technicians were told that it was permissible to exceed 40 hours per week as long as they maintained a production rate of $15/hour or higher. He asserts that one way to maintain this production rate was to underreport time worked: " Technicians were trained they could maintain a higher production rate by excluding time worked before arriving at their first job and time worked after completing their last job." ( Id. ¶ ¶ 8-9). A better production rate gave a technician a higher ranking, which translated to higher pay per job, while technicians with lower production rates were subject to discipline including termination. Mr. Hanson declared that technicians were not paid for all time worked, and regularly performed work before and after their first and last job, including: preparing satellite dishes at home; loading and unloading equipment; attending weekly meetings; reading emails listing job assignments for the next day; looking up directions and planning routes to complete installations for the next work day; pre-calling customers; and washing and maintaining their company vehicles. ( Id. ¶ ¶ 10-11). Butler testified that he was told separately by Mr. Hanson and Mr. Rob Green, another DirectSAT supervisor, that technicians could not record more than 40 hours per week. (ECF No. 268-3, at 30, 34, Trans. 113:4-24, 126:16 - 127:5). In a declaration, Butler states that during ...


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