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Depew v. Mobile Dredging and Plumbing Co.

United States District Court, D. Maryland

April 18, 2017

LARRY DEPEW and FRANCIS SPOKUS, Plaintiffs.
v.
MOBILE DREDGING AND PUMPING COMPANY and CARYLON CORPORATION Defendants.

          MEMORANDUM OPINION

          J. MARK COULSON, UNITED STATES MAGISTRATE JUDGE

         Plaintiffs, 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.

         I. Background

         Mobile 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.[1]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).[2] 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, [3] Plaintiffs worked as either “laborers” or “operators.”[4]

         From 2012 to 2015, the relevant time period in this case, Plaintiffs were employed as operators.[5] 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., described below.

         A 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 Plains facility.

         From 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[6] commuted to Blue Plains.[7] 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 108-109.

         Mr. 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.[8] 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 77-78, 82-83.

         Regardless 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.”[9] 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.

         Specifically, 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 Plains facility?
[Mr. Smith] Yes, to do the work.

         Smith 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 as follows:

[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 ...

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