United States District Court, S.D. Ohio, Eastern Division
Elizabeth P. Deavers Chief Magistrate Judge.
OPINION AND ORDER
A. SARGUS, JR. CHIEF JUDGE.
matter is before the Court on (1) Defendant's Partial
Motion for Summary Judgment on Count III (ECF No. 103), (2)
Defendant's Motion for Summary Judgment on All Claims
Raised by Plaintiff Thompson (ECF No. 106), and (3)
Defendant's Partial Motion for Summary Judgment on Counts
V and VI (ECF No. 109). For the reasons that follow, the
Court DENIES U.S. Cargo's Partial Motion
for Summary Judgment on Count III (ECF No. 103),
GRANTS in PART and DENIES in
PART the Motion for Summary Judgment on All Claims
Raised by Plaintiff Thompson (ECF No. 106), and
DENIES the Partial Motion for Summary
Judgment on Counts V and VI (ECF No. 109).
David Hall ("Hall"), a former delivery driver for
Defendant U.S. Cargo and Courier Service, LLC ("U.S.
Cargo"), filed this action on April 13, 2016, against
U.S. Cargo alleging violations of the Fair Labor Standards
Act, 29 U.S.C. §§ 201, etseq.
("FLSA"), the Ohio Wage Act ("OWA"), and
the Ohio Prompt Pay Act ("OPPA"), stemming from
U.S. Cargo allegedly misclassifying Hall as an independent
contractor rather than an employee. (ECF No, 1.) Hall also
asserted claims for unjust enrichment and interference with
his benefits under the Family Medical Leave Act, 29 U.S.C.
§§ 2601, etseq. ("FMLA"), and
sought a constructive trust.
the Court's permission (ECF No. 17), Hall filed the First
Amended Complaint on August 22, 2016 (ECF No. 18). Hall added
a disability-related claim under the Americans With
Disabilities Act, 42 U.S.C. § § 12111 et seq.
("ADA") and removed his claims under the FMLA.
OnNovember 1, 2017, with the Court's permission (ECF No.
31), Plaintiffs filed a Second Amended Complaint, adding as
plaintiffs Nick Thompson ("Thompson") and Dustin
Bryan ("Bryan") (collectively
"Plaintiffs"), both former delivery drivers for
U.S. Cargo, and adding class and collective action claims
(ECF No. 32).
March 9, 2018, this Court granted Plaintiffs' request for
conditional class certification under the FLSA. (ECF No. 53.)
Twenty-three former delivery drivers opted into this case.
After discovery, however, the parties agreed that Plaintiffs
were not similarly situated, and that decertification of the
class was appropriate. (ECF No. 99.) On February 22, 2019,
this Court decertified the class. (ECF No. 102.)
the Court's permission (ECF No. 97), Plaintiffs filed the
Third Amended Complaint, in which they removed the class
claims (ECF No. 98). In the Third Amended Complaint,
Plaintiffs assert seven claims for relief: (I) Violation of
the FLSA; (II) Violation of the Overtime Provisions of the
OWA; (III) Violation of the OPPA; (IV) Unjust Enrichment; (V)
Disability Claims as to Plaintiff Hall; (VI) Retaliation
Claims as to Plaintiff Hall; and (VII) Constructive Trust and
other Equitable Relief.
February 22, 2019, U.S. Cargo filed a Motion for Summary
Judgment on Count III (ECF No. 103) and Brief in Support (ECF
No. 104), and Plaintiffs filed their Memorandum in Opposition
to U.S. Cargo's Motion on Count III on March 15, 2019
(ECF No. 122). On March 29, 2019, U.S. Cargo filed its Reply
in Support of its Motion on Count III. (ECF No. 129.)
February 22, 2019, U.S. Cargo also filed a Motion for Summary
Judgment on All Claims Raised by Thompson (ECF No. 106) and
Brief in Support (ECF No. 107). On March 15, 2019, Plaintiffs
filed their Memorandum in Opposition to U.S. Cargo's
Motion on Thompson Claims. (ECF No. 123.) On March 29, 2019,
U.S. Cargo filed a Reply in Support of its Motion on Thompson
Claims. (ECF No. 128.)
Cargo also filed a third motion on February 22, 2019, moving
for Summary Judgment on Counts V and VI (ECF No. 109), and
Brief in Support (ECF No. 110). Plaintiffs filed their
Memorandum in Opposition to U.S. Cargo's Motion on Counts
V and VI on March 15, 2019 (ECF No. 124), and, on March 29,
2019, U.S. Cargo filed its Reply in Support of its Motion on
Counts V and VI (ECF No. 127).
Plaintiff David Hall
June 20, 2012 to July 24, 2015, Hall was a delivery driver
for U.S. Cargo in Columbus, Ohio. U.S. Cargo paid Hall a
daily flat rate of approximately $179.00. Additionally, U.S.
Cargo paid Hall $3.00 per stop, and $0.75 per piece of
freight, if he delivered more than three pieces per stop.
to Hall, he typically arrived at the U.S. Cargo warehouse
around 7:30 a.m. and returned around 5:30 p.m. Upon arriving
at the warehouse, Hall would receive a Preliminary Manifest
from U.S. Cargo, load freight onto his vehicle, submit
paperwork to a U.S. Cargo Shift Supervisor, and then receive
his route for the day. When Hall returned to the U.S. Cargo
warehouse after completing his route, a U.S. Cargo Shift
Supervisor would confirm Hall's deliveries for accuracy.
Hall typically worked approximately five days per week for
ten to twelve hours each day, for a total of 50 to 60 hours
per week. Hall estimates that he spent approximately one hour
completing paperwork each day.
a type-1 diabetic. Hall contends that he informed U.S. Cargo
about his condition when he was hired on June 20, 2012.
Hall's condition required regular visits to his doctor.
When working for U.S. Cargo, Hall requested shorter route
assignments on certain days or a day off altogether so that
he could visit his doctor. U.S. Cargo denied his request.
Unable to change his route, Hall missed several scheduled
doctor visits on different occasions.
7, 2015, Hall claims he requested an adjusted route so that
he could visit his doctor. U.S. Cargo denied his request.
Gina Gould ("Gould"), a U.S. Cargo Safety Manager,
reminded Hall that his contract required him to find a
back-up driver to cover his route when he was absent. Gould
provided Hall with the name of one back-up driver. Gould Dep.
Tr. at 65:17-20, Ex. 12. Hall explained to Gould that the
back-up driver was too busy to cover Hall's shift. Gould
Dep., Ex.12. Hall missed his scheduled appointment.
to Hall, the next morning he again complained to Gould that
U.S. Cargo had denied his request for an adjusted schedule so
that he could attend his appointment. Id. Hall
argued that an adjusted route was a matter of safety. He
further explained that he had notified U.S. Cargo about his
doctor's appointments, but that he was still unable to
schedule his appointments around his assigned routes.
to Gould, Hall then mentioned that he had considered calling
other U.S. Cargo employees to "let them know that he is
not what U.S. Cargo needs to run this route [and] that he
cannot fulfill the responsibilities of this route in the way
that U.S. Cargo thinks it should be covered."
Id. Hall then decided not to contact those U.S.
Cargo employees because he didn't "want to add [to]
what [they] already [had] on [their] plate."
Id. Hall then left and completed his route.
day, Gould emailed several U.S. Cargo employees about her
discussions with Hall. Gould asked: "Can we take this
conversation as an act of wanting to terminate his contract
or do we have to wait until ... Hall speaks to Matt or David
Hammel [(U.S. Cargo's Director of Operations)]?"
Id., The next day, on July 9, 2015, Dave Goss
("Goss"), another U.S. Cargo Safety Manager,
informed Hall that U.S. Cargo had terminated him due to
concerns about Hall's ability to perform his route. That
day, Hall received a written notification of termination,
effective July 24, 2015.
Plaintiff Nick Thompson
worked as a delivery driver for U.S. Cargo from July 2013 to
September 2014. U.S. Cargo paid Thompson a flat daily rate,
plus $3.00 per stop, regardless of how many hours he worked.
Thompson typically arrived at the U.S. Cargo warehouse around
7:00 a.m. and returned to the warehouse around 7:45 p.m. He
usually worked five days per week, for approximately 60 hours
per week, and oftentimes Hall worked up to 67.5 hours per
Plaintiff Dustin Bryan
worked as a delivery driver for U.S. Cargo from August 14,
2012 to December 31, 2014, and again from August 17, 2015 to
approximately September 17, 2015. U.S. Cargo paid Bryan a
flat daily rate, plus $3.00 per stop, regardless of how many
hours he worked. Bryan typically worked five days per week,
for at least 50 hours per week. Often, Bryan worked up to 70
hours per week.
judgment is appropriate "if the movant shows that there
is no genuine issue as to any material fact and the movant is
entitled to judgment as a matter of law." Fed.R.Civ.P.
56(a). The Court may therefore grant a motion for summary
judgment if the nonmoving party, who has the burden of proof
at trial, fails to make a showing sufficient to establish the
existence of an element that is essential to that party's
case. Celotex Corp. v. Catrett, 477 U.S. 317, 322
"party seeking summary judgment always bears the initial
responsibility of informing the district court of the basis
for its motion, and identifying those portions" of the
record which demonstrate "the absence of a genuine issue
of material fact." Id. at 323. The burden then
shifts to the nonmoving party who "must set forth
specific facts showing that there is a genuine issue for
trial." Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 250 (1986) (quoting Fed.R.Civ.P. 56(e)). "The
evidence of the nonmovant is to be believed, and all
justifiable inferences are to be drawn in his favor."
Id. at 255 (citing Adickes v. S. H. Kress &
Co., 398 U.S. 144, 158-59 (1970)). A genuine issue of
material fact exists "if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party." Anderson, 477 U.S. at 248; see also
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986) (the requirement that a dispute be
"genuine" means that there must be more than
"some metaphysical doubt as to the material
facts"). Consequently, the central issue is
'"whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is
so one-sided that one party must prevail as a matter of
law.'" Hamad v. Woodcrest Condo. Assn., 328
F.3d 224, 234-35 (6th Cir. 2003) (quoting Anderson,
477 U.S. at 251-52).
preliminary matter, U.S. Cargo classified Plaintiffs in this
case as independent contractors, maintaining that no
employee-employer relationship existed between it and
Plaintiffs. Neither party has moved for summary judgment on
this issue, which will therefore be decided by a jury.
See Lilley v. BTM Corp., 958 F.2d 746, 750 n.l (6th
Cir. 1992) ("The determination of employment status is a
mixed question of law and fact. Normally, a judge will be
able to make this determination as a matter of law. However,
where there is a genuine issue of fact or conflicting
inferences can be drawn from the undisputed facts, as here,
the question is to be resolved by the finder of fact in
accordance with the appropriate rules of law.") Although
Plaintiffs' statutory claims only apply to employers, the
Court will nevertheless address those claims.
U.S. Cargo's Motion for Summary Judgment on Count III
Cargo moves for summary judgment on Plaintiffs' claims
filed under the OPPA, Ohio Rev. Code § 4113.15, which
provides for liquidated damages on unpaid wages. The OPPA
provides in relevant part:
Where wages remain unpaid for thirty days beyond the
regularly scheduled payday or, in the case where no regularly
scheduled payday is applicable, for sixty days beyond the
filing by the employee of a claim or for sixty days beyond
the date of the agreement, award, or other act making wages
payable and no contest court order or dispute of any wage
claim including the assertion of a counterclaim exists
accounting for nonpayment, the employer, in addition, as
liquidated damages, is liable to the employee in an amount