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Furgason v. Furrer

United States District Court, S.D. Indiana, Indianapolis Division

September 16, 2014

WRAY L. FURGASON, Plaintiff,


MARK J. DINSMORE, Magistrate Judge.

The Court began a bench trial in this action on January 27, 2014, which, when Plaintiff Wray Furgason fell ill, was continued to April 24, 2014. Plaintiffs Wray Furgason and Michael Wharton were present in person and by counsel Robert Kondras. Defendants James Furrer and Proteus Pros, LLC d/b/a Mr. Handyman ("Mr. Handyman") were present in person, by Defendant Furrer, and by counsel Steven Sams.

Plaintiffs brought their individual actions against the Defendants to recover unpaid overtime compensation and statutory damages pursuant to the Fair Labor Standards Act (FLSA) and the Indiana Minimum Wage Law (IMWL). [ See Dkt. 1; No. 1:11-cv-01222-TWP-DKL Dkt. 1.] The Court, in response to cross motions for summary judgment in Plaintiff Furgason's case, ruled that (1) the IMWL, and not the FLSA, apply to Plaintiff Furgason's claims, (2) the Court retains supplemental jurisdiction over the IMWL claims, (3) Plaintiff Furgason at no point waived his right to sue Defendants pursuant to the IMWL, and (4) Plaintiff Furgason was not paid the overtime due to him under the IMWL on at least one work week. [Dkt. 54.] In January of 2014, the Court severed Plaintiff Wharton's wage claim from his other claims, consolidating said claim with Plaintiff Furgason's wage claim. [Dkt. 59.] All parties then consented to the jurisdiction of the Magistrate Judge for the purposes of conducting a bench trial on the remaining issues of the matter, namely the extent of damages owed to the Plaintiffs pursuant to the IMWL. [Dkt. 63.] Having heard testimony and considered the exhibits and arguments of counsel, the Court makes the following Findings of Fact and Conclusions of Law[1] pursuant to Federal Rule of Civil Procedure 52.

I. Findings of Fact

Mr. Handyman is a home repair business headquartered in Indianapolis, Indiana. Defendant Furrer is the owner, sole member, and sole manager of Proteus Pros, LLC, doing business as Mr. Handyman. As such, Defendant Furrer makes all the employment decisions, determines all employees' hours and wages, and has operational control over his business.

Plaintiff Furgason worked as a "technician" (handyman) for Mr. Handyman from February 28, 2011 through January 27, 2012. From February 28, 2011 through October 29, 2011 Plaintiff Furgason was paid a "salary" of $700 per week, regardless of the number of hours he worked. Plaintiff Wharton also worked as a technician for Mr. Handyman during this time period, from April 10, 2011 through August 4, 2011, and was paid the same "salary." In exchange for this "salary, " Plaintiff Furgason and Defendant Furrer testified that it was an understood expectation that each technician would average a 45-hour work week.

Defendant Furrer does not contest the finding of liability against him made in the District Judge's Order granting partial summary judgment. It was not until Plaintiff Wharton filed his lawsuit in the fall of 2011 that Mr. Furrer knew that his technicians were not exempt from receiving overtime pay when they worked more than 40 hours in one week. Accordingly, on October 30, 2011, Mr. Furrer began paying his technicians, including Plaintiff Furgason, $15 per hour for up to 40 hours per week and then $22.50 per hour of overtime. Prior to October 29, 2011, however, Defendant Furrer did not have a timekeeping method that tracked each hour worked by his technicians.

Plaintiff Furgason testified that, on a typical day from February 28, 2011 through October 29, 2011, he received a call from Mr. Furrer at 6:30 am to receive his assignment(s) for the day, which call lasted from twenty to thirty minutes. He then, as needed, was required to get certain fuel for the take-home work truck, which fuel was located fifteen minutes from where he lives, and was not always on the way to the first site, at which he had to arrive by 7:45 a.m. Throughout his time working for Mr. Handyman, Plaintiff Furgason worked at sites located throughout Hamilton, Boone, Johnson, and Marion Counties in Indiana. Mr. Handyman also required the technicians to buy supplies from certain stores, which were not always conveniently located, and to take debris to a dumpster that was located near Zionsville, Indiana. Generally, there were two assignments each day, with the first lasting from 8:00 a.m. through 12:00 p.m. and the second from 1:00 p.m. through 5:00 p.m. Although Mr. Furrer permitted his technicians to take a lunch break, Plaintiff Furgason testified that he was often on the road during that hour, having to clean out the truck and buy more supplies, when necessary. After leaving the last work site, Plaintiff Furgason was required to deliver the billing records to the Mr. Handyman office in Washington Township, Marion County, Indiana before returning home each Monday, Wednesday, and Friday. On average, Plaintiff Furgason testified that he did not arrive home until 6:00 p.m. or later.

Plaintiff Wharton then testified that his experience as a full-time technician for Mr. Handyman from April 10, 2011 through July 23, 2011 was quite similar to that of Plaintiff Furgason. As a technician for Mr. Handyman, Plaintiff Wharton worked as a handyman (fixed siding, re-caulked showers, repaired windows, etc.) and also performed preparatory and administrative functions (fueled the truck, submitted paperwork, picked up materials, etc.). Plaintiff Wharton testified that he received a call from Mr. Furrer every morning between 6:00 a.m. and 7:00 a.m. that lasted from five to fifteen minutes. Plaintiff Wharton also serviced homes located in Boone, Montgomery, Hamilton, Hendricks, and Marion Counties in Indiana during his time at Mr. Handyman, with the same two-assignment workday as described by Plaintiff Furgason. In sum, Plaintiff Wharton testified that he usually began his workday around 7:00 a.m. and ended his workday at about 6:00 p.m., for an average of 55 hours per week.

In support of these claims, Plaintiffs presented a sampling of GPS records as evidence of their 55-hour work weeks, emphasizing Plaintiff Furgason's GPS records from the week of June 19, 2011 through June 25, 2011 when he worked "at least 54 hours and 37 minutes." [ See. Dkt. 75-1 at 3-4.] However, the GPS records do not tell the whole story, as Mr. Furrer did not have the GPS systems installed in the trucks until June of 2011, and the GPS records do not include any time not on the road, such as organizing and cleaning the trucks or receiving their assignments from Mr. Furrer over the phone. On cross examination, Defendants pointed out that there were several days where it seemed that Plaintiff Furgason was parked at home throughout the day, but Plaintiff Furgason testified that one assignment was at a house down the street from his own, and Mr. Furrer did not present any billing records or other evidence to contradict that testimony. Additionally, Defendants made similar observations during cross examination of Plaintiff Wharton for days at the end of July 2011, but Plaintiff Wharton was injured on the job on about July 19, 2011 and is only claiming damages through the pay period ending July 23, 2011.

Defendant Furrer then testified in his defense and in defense of Mr. Handyman. Mr. Furrer confirmed that he hired Plaintiffs Furgason and Wharton as "salaried" employees at $700 per week for 45 hours of work each week, with no overtime pay. On cross examination, Mr. Furrer could not present a "traditional timecard" to represent when his technicians' workdays began and ended prior to October 30, 2011. Nor did Mr. Furrer present the telephone records to confirm the times or lengths of his morning calls or any evening calls, even though he testified that Plaintiffs were supposed to call him upon leaving the last site of the day. Mr. Furrer presented billing records as evidence of Plaintiffs' hours worked, but he admitted that such records do not reflect any time Plaintiffs performed work-related activities off the work site premises.

II. Credibility Determination

The Court recognizes that some of the foregoing findings are based on controverted evidence. The Court accepts the testimony of both Plaintiff Furgason and Plaintiff Wharton to the extent that their testimony is in agreement. However, the Court does not accept Plaintiff Furgason's claim that the morning call from Mr. Furrer lasted twenty to thirty minutes when Plaintiff Wharton testified that the morning call only lasted five to fifteen minutes. On this issue, the Court finds Plaintiff Wharton's testimony credible, and a morning call lasting ten minutes on average will be factored into the Court's final calculation of damages.

Likewise, it appears that Plaintiff Wharton may have believed that the $700 per week "salary" was only intended to compensate for 40 hours per week and not 45. [ See No. 1:11-cv-01222-TWP-DKL Dkt. 1 at 2.] This is significant because five hours of uncompensated overtime work at the regular rate of $17.50 ($700/40 hours) would be calculated at $26.25 per hour, while five hours of work paid only at the regular rate of $15.56 ($700/45 hours) instead of the overtime rate of $23.33 would be calculated at the difference, $7.77 per hour. Both Plaintiff Furgason and Mr. Furrer testified that the "salary" was intended to compensate for 45 hours of work per week, and this consensus is presented in Plaintiffs' proposed Findings of Fact and Conclusions of Law. [Dkt. 75-1.] Therefore, the Court finds that the $700 per week "salary" was intended for a 45 hour work week, and ...

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