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Tyler v. JP Operations, LLC

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

September 20, 2018

ANDREW TYLER, Plaintiff,
v.
JP OPERATIONS, LLC d/b/a JACK'S PIZZA, INC., Defendant.

          ENTRY ON CROSS-MOTIONS FOR PARTIAL SUMMARY JUDGMENT

          TANYA WALTON PRATT, JUDGE UNITED STATES DISTRICT COURT.

         Before the Court are the parties' cross-motions for partial summary judgment. Plaintiff Andrew Tyler, (“Tyler”), initiated this action against his former employer, Defendant JP Operations, LLC d/b/a Jack's Pizza, Inc., (“Jack's”), for unpaid wages and the failure to pay minimum wage for hours worked while working as a pizza delivery driver. On October 24, 2017, Jack's filed its Motion for Partial Summary Judgment (Filing No. 62), and on December 13, 2017, Tyler filed his Cross-Motion for Partial Summary Judgment (Filing No. 70). For the following reasons, the Court grants in part and denies in part Jack's Motion for Partial Summary Judgment, and grants in part and denies in part Tyler's Cross-Motion for Partial Summary Judgment.

         I. BACKGROUND

         This case arises out of a wage dispute involving Tyler's time working for Jack's as a part-time pizza delivery driver. JP Operations, LLC operates Jack's, a chain of pizza stores in central Indiana. (Filing No. 64-3.) Tyler worked primarily at the store located at 8025 Pendleton Pike, Lawrence, Indiana 46226 (the “Pendleton Pike store”) from approximately August 6 to December 23, 2013, and was subsequently transferred to the store located at 5650 East 86th Street, Indianapolis, Indiana 46240 (the “Castleton store”), where he worked from January 9 to May 10, 2014. (Filing No. 64-1 at 21; Filing No. 64-3 at 1.)[1] Both stores were open 4:00 p.m. until 11:00 p.m., Sunday through Thursday. On Friday and Saturday, the business hours for the Pendleton Pike store was 4:00 p.m. until 1:00 a.m., and the Castleton store hours were from 4:00 p.m. until 12:00 a.m. (Filing No. 64-3 at 2). The Pendleton Pike store used a computer-based point-of-sale system (“POS”) to enter customer order details including the delivery address and assigned pizza delivery driver. (Filing No. 64-14 at 31.) Because the Castleton store did not have a POS system, all orders were recorded on paper. Id. at 23.

         Tyler's base rate of pay was $7.25 per hour. (Filing No. 64-3 at 3.) Tyler's supervisor, Ryan Johnson (“Johnson”), recorded Tyler's clock-in and clock-out times while Tyler was employed at the Pendleton Pike store. (Filing No. 64-1 at 38.) For several shifts, Tyler initialed completed timesheets, prepared by Johnson, verifying that the timesheet was accurate. (Filing No. 64-1 at 82-84.) Tyler did not keep track of his own log of hours. Id. at 24. The Castleton store had actual timesheets that Tyler initialed each and every shift.[2] Id. at 32. Tyler testified that he closed the Pendleton Pike store almost every shift he worked, which caused him and Johnson (closing manager) to leave the store close to midnight or shortly thereafter at the end of Tyler's shifts. Id. at 35. The closing duties included: washing dishes, taking out the trash, sweeping and mopping the floor, and folding boxes if needed. Id. at 45. Tyler testified that it would take an hour or more to perform all of the closing tasks. Id. A sample of Tyler's clock out times for certain dates where he alleges that he was not paid for all of his hours is included below:

a.

Tuesday

8-6-13

11:30 p.m.

b.

Tuesday

8-27-13

11:35 p.m.

c.

Monday

9-9-13

11:10 p.m.

d.

Monday

9-16-13

11:35 p.m.

e.

Wednesday

9-18-13

11:30 p.m.

f.

Monday

9-23-13

11:25 p.m.

g.

Wednesday

10-2-13

11:10 p.m.

h.

Monday

10-7-13

11:30 p.m.

i.

Monday

10-14-13

11:20 p.m.

j.

Wednesday

10-16-13

11:10 p.m.

k.

Wednesday

10-23-13

11:10 p.m.

l.

Monday

10-28-13

11:20 p.m.

m.

Wednesday

10-30-13

11:15 p.m.

n.

Tuesday

11-5-13

11:00 p.m.

         (Filing No. 71 at 4-5). Most of Tyler's closing shifts were worked with Johnson. On such days Johnson's timesheets reflect the same clock-out times as Tyler's. (Filing No. 64-3 at 3.) Tyler's timesheets for both the Pendleton Pike store and Castleton store reflect that 696.16 hours were recorded and paid to him. Id.

         In addition to Tyler's base hourly rate, he also received reimbursements for driving expenses (“Driver's Fees”) which was calculated based on the following formula: “for each order a driver delivered, the driver received $1.25 3% of the order total (pre-tax)”. Id. at 5. Jack's maintained a policy that it would not deliver an order if the order total was less than $15.00, thus based on the calculation ($1.25 [0.03 * $15.00]), a driver would receive at least $1.70 on each order. Id. The store manager on shift calculated the Driver's Fee reimbursements at the end of each shift. The Pendleton Pike store manager used the POS system, which printed out an account report that showed the total order amount for each driver, to calculate and pay Driver's Fees. Id. at 42. Because the Castleton store did not have a POS system, the store manager used a paper form called a Driver Checkout sheet to calculate Driver's Fees. Id. at 61. As an example, on August 21, 2013, Tyler delivered three orders totaling $103.23, and based on the Driver's Fee calculation he received $6.59 in Driver's Fees. (Filing No. 64-3 at 5.) Tyler earned a total of $1, 520.97 in Driver's Fees during his employment at both store locations. The parties disagree on the total mileage driven by Tyler as a delivery driver, however the disagreement is de minimis as it is a seventy mile difference. Tyler's calculation for total mileage, for the Pendleton Pike store, is 2, 416.4 miles derived from Tyler's counsel using Mapquest.com and customer's addresses round-trip miles, while Jack's figure is approximately 2, 346.40 derived from the POS system. (Filing No. 70-2 at 1; Filing No. 64-3 at 4.) It is undisputed that Tyler was paid $866.17 total in Driver's Fees from the Pendleton Pike store; however, based on the different total mileage calculations, Tyler alleges Jack's mileage rate actually paid to him equals $0.36 per mile, while Jack's calculation equals $0.37 per mile. (SeeFiling No. 71 at 6; Filing No. 63 at 6.)[3]

         II. LEGAL STANDARD

         Summary judgment is only appropriate by the terms of Rule 56 where there exists “no genuine issue as to any material facts and . . . the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56. This notion applies equally where, as here, opposing parties each move for summary judgment in their favor pursuant to Rule 56. I.A.E., Inc. v. Shaver, 74 F.3d 768, 774 (7th Cir. 1996). Indeed, the existence of cross-motions for summary judgment does not necessarily mean that there are no genuine issues of material fact. R.J. Corman Derailment Serv., Inc. v. Int'l Union of Operating Eng'rs, 335 F.3d 643, 647 (7th Cir. 2003). Rather, the process of taking the facts in the light most favorable to the non-movant, first for one side and then for the other, may reveal that neither side has enough to prevail without a trial. Id. at 648. “With cross-motions, [the court's] review of the record requires that [the court] construe all inferences in favor of the party against whom the motion under consideration is made.” O'Regan v. Arbitration Forums, Ins., 246 F.3d 975, 983 (7th Cir. 2001) (quoting Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 692 (7th Cir. 1998)).

         A court is not permitted to conduct a paper trial on the merits of a claim and may not use summary judgment as a vehicle for resolving factual disputes. Ritchie v. Glidden Co., ICI Paints World-Grp., 242 F.3d 713, 723 (7th Cir. 2001); Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994). Indeed, a court may not make credibility determinations, weigh the evidence, or decide which inferences to draw from the facts. Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003) (“these are jobs for a factfinder”); Hemsworth v. Quotesmith.Com, Inc., 476 F.3d 487, 490 (7th Cir. 2007). Instead, when ruling on a summary judgment motion, a court's responsibility is to decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial. Id.

         III. DISCUSSION

         A. Tyler's Declaration

         Tyler designates his Affidavit as part of his Response in Opposition to Summary Judgment which contains a paragraph stating: “I made a mistake in my deposition testimony when I testified that I drove my car, the 2002 Mercury Marquis, for my other job at Central Insulation. See (Deposition p. 23:4-12). I drove my truck, the 2001 Mazda Tribute, for both my jobs at Central Insulation and Jack's.” (Filing No. 70-1 at 1). Jack's requests that this Court disregard this portion of the Affidavit, as it improperly contradicts Tyler's prior deposition testimony that he drove different cars for both jobs. (SeeFiling No. 64-1 at 22-23; Filing No. 74 at 6.) The Court agrees on this point. “It is a well-settled rule of this Court that a plaintiff cannot create an issue of material fact merely by manufacturing a conflict in his own testimony by submitting an affidavit that contradicts an earlier deposition.” Piscione v. Ernst & Young, L.L.P., 171 F.3d 527, 532 (7th Cir. 1999) (citations omitted). Because Tyler's expert report relies on a vehicle expense calculation based on Tyler driving the same car to both jobs, Jack's also contends that this proves that the expert report is unreliable.[4] (Filing No. 74 at 9.) Tyler responds that the Affidavit was submitted to clarify the mistaken testimony and the relevant vehicle (or vehicles) used for both jobs goes to the calculation of cost per mile in arriving at a figure, for the expert report calculation, rather than on an issue of material fact. (Filing No. 80 at 7.) (“If the expert report was given false information, then this would greatly increase the cost per mile for Mr. Tyler to deliver pizza for Jack's and the potential liability of Jack's.”) Thus, Tyler contends that the clarification is not an attempt to manufacture a conflict (or create a disputed issue of material fact) and Jack's contention that the testimony should be struck is unfounded.

         The Court will disregard Tyler's Affidavit regarding Tyler driving different vehicles to his two jobs. Tyler does not allege that he was confused or tricked by opposing counsel when asked which vehicle he drove to either job during the initial deposition. However, the Court will not find Tyler's expert report unreliable solely on the basis of this. In any event, Tyler alleges that the expert report was based on the correct information.[5] Moreover, even if the expert report relied on a faulty calculation, Tyler has also proposed the Internal Revenue Service mileage rate as the rate that he should have been reimbursed at.

         B. Tyler's Expert Report

         Tyler's expert report was prepared by CJ&E Associates, LLC, a certified public accounting (“CPA”) firm. Jack's objects to the use of Tyler's Expert Report on the bases that it was untimely disclosed and is inadmissible due to unreliability. (Filing No. 74 at 4.) The Court will address each contention in turn.

         Jack's contends that Tyler's expert report was not served at least 90 days prior to the dispositive motion deadline. (Filing No. 74 at 2.) Tyler responds that the reason that the expert report could not be served within the 90 day timeframe is due to Jack's failure to timely produce all records from its POS system which is relevant to Tyler's minimum wage claim. (Filing No. 80 at 3.) On July 21, 2017, Jack's served the documents relating to Tyler's delivery locations from the POS system at the Pendleton Pike store. (Filing No. 80-1 at 2.) Tyler persuasively argues that based upon receiving the delivery locations from the POS data, he could now engage an expert to calculate his costs per mile for making deliveries armed with the POS data. (Filing No. 80 at 4.) In any event, on August 16, 2017, Tyler filed a Motion to Extend Expert Report Deadline to which Jack's filed a brief in opposition. (Filing No. 49; Filing No. 50.) Magistrate Judge Matthew Brookman granted the extension. Contained in Tyler's Motion to Extend Expert Report Deadline, Tyler notified Jack's that he intended to use an expert in this matter to calculate his vehicle cost per mile driven. (SeeFiling No. 49 at 1.) Tyler contends that his Motion to Extend Expert Report Deadline, including the notice that he intended to use an expert, occurred within the first 26 days after receiving the POS documentation from Jack's, a reasonable amount of time. (Filing No. 80 at 4.)

         Because the timing of Jack's disclosures affected the relevant information that Tyler needed to hire an expert for the underlying calculations and Tyler's extensions were granted, the Court declines to strike the expert report on the basis of timeliness. A party must make an expert disclosure at the times and in the sequence that the court orders. Fed.R.Civ.P. 26 (a)(2)(D). “Absent a stipulation or a court order, the disclosures must be made at least 90 days before the date set for trial or for the case to be ready for trial.”

         “Whether to admit expert testimony rests within the discretion of the district court.” Marshall v. Town of Merrillville,228 F.Supp.3d 853, 869 (N.D. Ind. 2017) (citing Gen. Elec. v. Joiner,522 U.S. 136, 142, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997)). The Court now turns to ...


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