United States District Court, D. Maryland
LARRY DEPEW and FRANCIS SPOKUS, Plaintiffs.
MOBILE DREDGING AND PUMPING COMPANY and CARYLON CORPORATION Defendants.
MARK COULSON, UNITED STATES MAGISTRATE JUDGE
Mr. Larry Depew and Mr. Francis Spokus (collectively,
“Plaintiffs”), filed their complaint in this
Court, on October 9, 2015, against Defendants, Mobile
Dredging and Pumping Company (“Mobile”) and the
Carylon Corporation (“Carylon”) (collectively,
“Defendants”), alleging that they were not
properly compensated for hours worked in violation of Fair
Labor Standards Act of 1938, as amended, 29 U.S.C.
§§ 201, et seq. (“FLSA”), the
Maryland Wage and Hour Law, Maryland Code Annotated, Labor
and Employment Article §§ 3-401, et seq.
(“MWHL”), and the Maryland Wage Payment and
Collection Act, Maryland Code Annotated, Labor and Employment
Article §§ 3-501, et seq.
(“MWPCL”). The parties consented to proceed
before a magistrate judge pursuant to 28 U.S.C. § 636(c)
and Local Rule 301.4. (ECF Nos. 8, 10, 11, 13). Now pending
before the Court is Defendants' “Motion for Summary
Judgment, or in the alternative Motion to Dismiss.”
(ECF No. 33). In deciding that motion, the Court has also
considered Plaintiffs' Response in Opposition and
Defendants' Reply, and a hearing was held on April 11,
2017. (ECF No. 36, 37, 38, 40). For the reasons that follow,
Defendants' motion is GRANTED IN PART and DENIED IN PART.
is an “environmental services contractor” based
in Chester, Pennsylvania that provides “sewer cleaning,
industrial cleaning, sediment and sludge dredging, and
dewatering services.” Vetter Dep. at 13 (ECF Nos. 33-3,
36-2, 37-7). Mobile is a subsidiary of Carylon, a
privately-held corporation that owns environmental service
contractors. Vetter Dep. at 17-18.From 2008 to 2015, Plaintiffs
were, at various and overlapping periods, employees of
Mobile. Mr. Depew, who at all times relevant to this
litigation lived in Dundalk, Maryland, worked for Mobile from
October 2008 to June 2015. Depew Interog. Ans. No. 2 (ECF No.
33-10); Depew Dep. at 25, 95 (ECF Nos. 33-5, 36-3,
37-4). Mr. Spokus, also a resident of Dundalk,
Maryland, worked for Mobile from June 2011 to April 2015.
Spokus Interog. Ans. No. 2 (ECF No. 33-11); Spokus Dep. at
11-12, 18-19 (ECF Nos. 33-4, 36-4, 37-5). At different times
during the course of their employment with Mobile,
Plaintiffs worked as either “laborers” or
2012 to 2015, the relevant time period in this case,
Plaintiffs were employed as operators. Depew Dep. at 25,
36; Spokus Dep. at 18-19, 26. This position generally
required Plaintiffs to be present at the jobsite, speak with
the customer about any concerns and expectations relating to
the ongoing work, inspect the vehicles and equipment, and
ensure that the crew had all the necessary tools to complete
the job. Depew Dep. at 25, 37, 50-51, 105, 107; Spokus Dep.
at 62, 65, 67. Plaintiffs, themselves, would also operate the
equipment and vehicles to complete whatever project they were
working on. Depew Dep. at 25, 37, 50-51, 105, 107; Spokus
Dep. at 62, 65, 67. Plaintiffs' supervisor at Mobile, Mr.
David Smith, testified that Plaintiffs would “take the
truck to the site, help hook up the hoses, engage the blowers
to make the trucks work, fill the water pumps to make the
water blasters work. And then . . . they would operate the
water blaster themselves, unless they had a qualified second
man on the truck to do the water blasting.” Smith Dep.
at 34. In addition to these duties, Plaintiffs obtained, at
Mobile's request, Commercial Drivers Licenses
(“CDLs”) so that they could drive large
commercial vehicles on behalf of Mobile. Spokus Dep. at 33,
36; Depew Dep. at 45. Plaintiffs obtained these licenses
before their transfer from Baltimore to Washington D.C.,
central issue in the pending motion for summary judgment is
the change in Plaintiffs' jobsite location, and whether
that change imposed additional, compensable work obligations
upon Plaintiffs for which they were not paid. When Plaintiffs
began their employment with Mobile, in 2008 and 2011
respectively, they were working at the Bethlehem Steel/RG
Steel (“Bethlehem Steel”) facility located at
Sparrows Point in Baltimore, Maryland. At that time, Mobile
had a long-term contract to provide industrial cleaning
services at the Sparrows Point facilities. Vetter Dep. at 34
(ECF Nos. 33-3, 36-2, 37-7). However, when Bethlehem Steel
went out of business, Mobile entered into a contract to
provide industrial cleaning services at Blue Plains Advanced
Water Treatment Facility, (“Blue Plains”),
located in Washington D.C. Spokus Dep. at 36; Vetter Dep. at
34. Despite losing the contract with Bethlehem Steel,
Plaintiffs continued their employment with Mobile and were
required to commute from the Baltimore area to the Blue
2012 to 2015, Plaintiffs commuted from Sparrows Point to Blue
Plains, and it is this period of employment with Mobile that
is the focus of the present motion. However, the exact
timeline and details of this commute are not entirely clear
from the record. Mr. Depew testified at his deposition that,
upon the closing of Bethlehem Steel, he was transferred or
“told to report” to the Blue Plains facility in
February or March of 2012. Depew Dep. at 100. Mr. Depew noted
that for his first day at the Blue Plains facility, he was
instructed by Mr. Smith to “get with” Mr. Spokus
at a small facility nearby Sparrows Point where Mobile kept
some of its vehicles and equipment. Spokus Dep. at 76; Depew
Dep. at 103. Once there, they would use “the company
truck” to travel to Blue Plains together. Depew Dep. at
100-101. Mr. Depew stated that this is how he, Mr. Spokus,
and several other Mobile employees commuted to Blue
Plains. Mr. Depew further added that he almost
exclusively used company vehicles to commute to and from
Sparrows Point and Blue Plains, and only on “very
rare” occasion would he drive his personal vehicle to
Blue Plains directly. Depew Dep. at 108. In fact, Mr. Depew
testified that he generally did not have the option of
driving his personal vehicle to Blue Plains, rather, he was
“told to report” to the Sparrows Point facility
to get the company truck and equipment. Depew Dep. at
Spokus's deposition testimony, however, offers a slightly
different account. He testified that he began at Blue Plains
in September of 2012, five to six months after Mr.
Depew's start at the Washington D.C. facility. Spokus
Dep. at 73. Mr. Spokus noted that for the first few weeks of
this commute, he used a company truck that was located at a
Mobile owned parking lot near Sparrows Point. Spokus Dep. at
73-73, 76. However, after a few weeks of this, Mr. Spokus was
required to drive his own personal vehicle from his house
directly to the Blue Plains facility. Spokus Dep. at 77.
Eventually, after some period of time commuting this way, Mr.
Spokus complained about the commute to his supervisors,
(Spokus Dep. at 78-79), prompting them to provide a different
method of commute for their employees making this
trip. As a result, Mr. Spokus, Mr. Depew, and
several others would meet in the mornings at a facility
located at Sparrows Point, where they would drive a company
vehicle from Sparrows Point to Blue Plains. Spokus Dep. at
of these discrepancies, both Plaintiffs contend that for a
significant period of time, at least from 2013 to 2015, they,
along with the other Mobile employees, would meet in the
mornings at Sparrows Point and travel to Blue Plains using a
company vehicle that they loaded with Mobile equipment that
would be used in the cleaning process at Blue Plains.
Plaintiffs would generally drive one of several different
vehicles that were stored at Mobile's facility at
Sparrows Point, including a “Guzzler, ” a
“Hydro, ” and a “Stakebody
truck.” Spokus Dep. at 111; Depew Dep. at 127. The
work equipment and tools that they would load into the
vehicle and transport each day would include such things as
oil, fluids, hoses, piping, shovels, picks, and squeegees
that were stored at Mobile's facility at Sparrows Point.
Spokus Dep. at 135-136. The particular vehicles, equipment,
and tools that Plaintiffs would transport each day were
communicated to them the day prior by their supervisor, Mr.
Smith. Depew Dep. at 251.
as it related to which vehicle would be brought down from
Sparrows Point to Blue Plains, Mr. Smith testified as follows
at his deposition:
[Counsel] Did you ever request a [utility truck equipped with
a fuel cell] to be transported from the Baltimore area to the
Blue Plains facility?
[Mr. Smith] Always.
[Counsel] Okay. And why is that?
[Mr. Smith] That's how we fueled up all our equipment.
[Counsel] Okay. Did Mr. Depew ever drive the utility truck or
the fuel cell?
[Mr. Smith] Yes.
[Counsel] And why would he - why did he do that?
[Mr. Smith] They rotated. One would drive in the morning. And
one would drive in the evening.
* * *
[Counsel] Okay. All right. To your knowledge, did Larry Depew
ever drive a company vehicle from Sparrows Point to the Blue
Plains facility without your knowledge?
[Mr. Smith] No.
[Counsel] Did Mr. Depew ever drive a company vehicle from
Sparrows Point to Blue Plains without your request?
[Mr. Smith] No.
[Counsel] . . . And when Mr. Depew drove whatever vehicle he
drove that day to the Blue Plains facility, was it used by
the workers, Mobile Dredging workers? Was it used at the Blue
[Mr. Smith] Yes, to do the work.
Dep. at 41, 45. And, as it related to the tools and equipment
that Mr. Smith instructed Plaintiffs to transport from
Sparrows Point to Blue Plains each day, Mr. Depew testified
[Counsel] But every day, you would load your fuel cell?
[Mr. Depew] Fuel up, yes. It was required.
[Counsel] Now the equipment, the tools that you loaded up on
the truck, was that your property?
[Mr. Depew] No. It was Mobile Dredging's.
[Counsel] Were you told what equipment to bring each day from
Sparrows Point to Blue Plains?
[Mr. Depew] Usually, at the end of day, prior to.
[Counsel] And who would tell you what to ...