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Andrews v. Weatherproofing Technologies, Inc.

United States District Court, D. Massachusetts

September 28, 2017





         Brent Andrews (“Andrews”), and Ernest Rezendes (“Rezendes”, and, together with Andrews “Plaintiffs”) filed suit against Weatherproofing Technologies, Inc. (“WTI” or “Defendant”) alleging: statutory claims for violation of the straight wage provisions of the Massachusetts Wage Act, Mass.Gen.L. ch. 149, §§ 148, 150 (“MWA”), the overtime compensation provisions of the Massachusetts Fair Minimum Wage Act, Mass.Gen.L. ch. 151, §1A (“MFMAW”) and Fair Labor Standards Act, 29 U.S.C. §207 (“FLSA”), and the prevailing wage provision of the Massachusetts Wage Act, 149, §§26 and 27 (“MWAPW”); and Massachusetts common law claims for breach of the covenant of good faith and fair dealing, breach of contract, and unjust enrichment.

         This Memorandum of Decision and Order addresses Defendant's Motion For Summary Judgment (Docket No. 36). For the reasons set forth below, that motion is granted, in part, and denied, in part.

         Standard of Review

         Summary Judgment is appropriate where, “the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Carroll v. Xerox Corp., 294 F.3d 231, 236 (1st Cir. 2002) (citing Fed.R.Civ.P. 56(c)). “‘A “genuine” issue is one that could be resolved in favor of either party, and a “material fact” is one that has the potential of affecting the outcome of the case.'” Sensing v. Outback Steakhouse of Florida, LLC, 575 F.3d 145, 152 (1st Cir. 2009) (quoting Calero-Cerezo v. U.S. Dep't. of Justice, 355 F.3d 6, 19 (1st Cir. 2004)).

         When considering a motion for summary judgment, the Court construes the record in the light most favorable to the nonmoving party and makes all reasonable inferences in favor thereof. Sensing, 575 F.3d at 153. The moving party bears the burden to demonstrate the absence of a genuine issue of material fact within the record. Id., at 152. “‘Once the moving party has pointed to the absence of adequate evidence supporting the nonmoving party's case, the nonmoving party must come forward with facts that show a genuine issue for trial.'” Id. (citation to quoted case omitted). “‘[T]he nonmoving party “may not rest upon mere allegations or denials of the [movant's] pleading, but must set forth specific facts showing that there is a genuine issue of material fact as to each issue upon which [s/he] would bear the ultimate burden of proof at trial.” Id. (citation to quoted case omitted). The nonmoving party cannot rely on “conclusory allegations” or “improbable inferences”. Id. (citation to quoted case omitted). “‘The test is whether, as to each essential element, there is “sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” ' ” Id. (citation to quoted case omitted).

         Findings of Fact

         WTI's Motion to Strike

         WTI filed a motion to strike Plaintiffs' statement of material facts two days before the hearing on its motion for summary judgment. At the hearing, WTI's counsel briefly mentioned that to support Plaintiffs' statement of material facts, which the Plaintiffs allege are undisputed, they cite to the deposition of Bernard Honeywell, who supervised Andrews for a time. See Pls' Resp. to Def's Statement of Undisputed Material Facts (Docket No. 41)(“Pls' Disputed Facts and Additional Factual Assertions”), at pp. 25-32; Pls' Opp. And Mem. Of L. in Opp. To Def's Mot. For Sum.J. (Docket No. 40), at Ex. 3 (the “Honeywell Deposition”). The Honeywell Deposition was obtained in a prior case, Wright v. Weatherproof Technologies, 13-13264-WGY, which Plaintiffs alleged involved similarly situated employees who filed suit against WTI asserting substantially identical claims to the ones asserted by them in this case. Plaintiffs did not depose Honeywell in this case. Neither party otherwise made or requested to make any formal argument to the Court regarding the motion to strike. Moreover, post-hearing, Plaintiffs did not file an opposition to the motion to strike.

         For the reasons set forth below, I am, for the most part, allowing the motion to strike. This is not a decision I make lightly and is not being made simply because the Plaintiffs neglected to file an opposition. I am allowing the motion because I agree with the Defendant that the evidence in the record cited by the Plaintiffs too often fails to support their factual assertions. For example, Plaintiffs assert that Bernard Honeywell (“Honeywell”) “fielded complaints from the technicians about not being paid for performing paperwork at home.” Pls' Disputed Facts and Additional Factual Assertions, at ¶76. However, Honeywell's testimony was that plaintiffs in the Wright case complained to him that they doing paperwork at home-he did not testify that they complained they were not being paid for the doing that paperwork. See Honeywell Deposition, at p. 128 lines 1-5. Additionally, Plaintiffs state that “Honeywell was aware that the technicians were not getting paid for their administrative work done at home.” Pls' Disputed Facts and Additional Factual Assertions, at ¶77. While one of the deposition lines cited could be read to support this factual assertion, the others do not. Honeywell Dep. P. 133 l. 22-24; P. 134 l. 1-19; p. 145 l. 1-5; p. 153 l. 1-7; p. 181 l. 11-16. Plaintiffs assert that “[a]nother labor intensive part of the at-home paperwork were organizing, captioning and uploading photos-especially for a TremCare, which could have 500 photos. Submitting photos took approximately 30 minutes. If the photos were related to a patch-and repair job, or smaller work, the photos took approximately 15 minutes.” Pls. Additional Facts, at ¶80. However, what Honeywell testified about was how long it would take to caption the photos, not submit and organize them from home. In fact, Honeywell repeatedly stated that this process should have been completed at the jobsite- pushed by Plaintiffs' counsel, he estimated it could take approximately 30 minutes if the employee took this work home to complete. Honeywell Dep. P. 144 l.10-24' p. 145 l. 1-24; p. 146 l. 1-20; p. 152 l. 6-11.

         Plaintiffs also misstate the testimony of Edward Kolasienski (“Kolasienski”). Plaintiffs state that “WTI expects its technicians, particularly Mr. Andrews and Mr. Rezendes to complete paperwork every single night.” Pls' Disputed Facts and Additional Factual Assertions, at ¶100. However, what Kolasienski actually testified was that TremCare's Q&A's and OLI uploads were to be done every day with no exceptions, including by the Plaintiffs. They were supposed to complete this task by the end of shift, if they could not, they were to upload it at home and charge their time to that number of the job they had been working on. See Pls' Opp. at Ex. 2 (Kolasienski Deposition), at p. 44. There are more examples which I will not take the time to point out. Instead, I am granting WTI's motion to the extent that it seeks to strike the additional facts asserted by the Plaintiffs set forth in Pls' Disputed Facts and Additional Factual Assertions, , at ¶¶75-125, pp. 25-32.

         Putting aside whether the Plaintiffs have accurately characterized Honeywell's deposition testimony, there is a more fundamental problem with their reliance thereon. Honeywell's deposition was taken in October 2014 for use in a case filed at the end of 2013. From the deposition excerpts, it appears that Honeywell left Weatherproofing's employ sometime in 2014. The Federal Rules of Civil Procedure allow depositions taken in earlier actions to be used in a later action so long as the later action involves “the same subject matter between the same parties, or their representatives or successors in interest.” See Fed.R.Civ.P. 32(a)(8). The key is whether an adversary with the same motive to cross-examine the deponent was present when the deposition was taken in the earlier action. However, even if I were to assume that the prerequisites to using Honeywell's deposition from the earlier action have been met, Plaintiffs have failed to establish that his testimony is relevant to this case. That is, they have failed to establish that the time frame to which Honeywell was testifying in the earlier action is the same timeframe as in this case or that the testimony made by Honeywell regarding the specific plaintiffs in that case pertains to Andrews and Rezendes. Therefore, I am striking the Honeywell Deposition for all purposes.

         As for WTI's factual assertions which Plaintiffs contend are in dispute, Plaintiffs have made objections to WTI's material statement of facts and these objections are unsupported by citation to the record or don't actually contradict the factual assertions made by the Defendant. For example, WTI asserted that it had not received any reports or complaints regarding off-the-clock or unreported work or denial of overtime in Massachusetts through this an employee hotline it set up with a third party vendor. See Def's Statement of Undisputed Material Facts (Docket No. 38), at ¶20. Plaintiffs dispute this factual assertion stating that “WTI has received countless complaints from its Massachusetts technicians regarding off the clock work, including a separate lawsuit on the issue and has many witnesses (current and former technicians) who intend to testify to the opposite.” Pls' Disputed Facts and Additional Factual Assertions, at ¶23. In support of this statement, Plaintiffs cite to numerous pages of the Kolasienski Deposition. Ignoring the fact that Plaintiffs do not cite to any record evidence to support their contention that they have “many witnesses (current and former technicians) who intent to testify to the opposite, ” none of the Kolasienski Deposition testimony cited by the Plaintiffs disputes WTI's assertion that the employee hotline received no complaints. Moreover, while some of the testimony relates to complaints which Kolasienski received from the Plaintiffs, most of this testimony has nothing to do with employee complaints. Again, there are more examples which I will not take the time to mention. Plaintiffs also cite generally to their responses to interrogatories without specifying which response supports their assertion/objection: It is not the Court's responsibility to review the interrogatory responses in their entirety to determine which support Plaintiffs' objections. In many instances, Plaintiffs “dispute” WTI's asserted facts by interjecting irrelevant editorial comments. I have accepted as true factual assertions made by WTI which Plaintiffs have not properly disputed.

         Plaintiffs' Employment

         Plaintiffs work as roofing technicians, inspecting and repairing WTI's clients' roofing systems. They do not work with each other and do not have personal knowledge of each other's hours. Andrews began working for WTI in 2006 and, according to the complaint, Rezendes started working for WTI in 2003. Both Plaintiffs are supervised by Kolasienski. Kolasienski has been their supervisor for approximately three years. For the rest of the relevant period, Plaintiffs' were supervised by Honeywell: He supervised Andrews from the beginning of his employment in 2006, and supervised Rezendes starting in 2011.

         Plaintiffs do not work at a facility operated or maintained by WTI and perform their work at client sites throughout Massachusetts, and sometimes in other states. Kolasienski does not observe Plaintiffs' day-to-day activities and instead communicates with each Plaintiff by telephone approximately once per day and visits each Plaintiff on a job site approximately once per week. WTI does not monitor any work Plaintiffs perform at home.

         WTI's Policies and Related Training

         The WTI Time Reporting and Expense Policy (“Time Reporting Policy”) requires all employees to: (i) “maintain an accurate daily record of all hours worked, ” (ii) “record and report all hours worked, ” without exception; and (iii) review weekly time and expense reports “to verify that they have submitted all of their hours worked . . . and that their time record and expense reporting is complete and accurate.” The Time Reporting Policy further provides: “Hours worked is all time in a day that is worked and should be recorded accurately from start time to stop time. This includes all responsibilities of the job, i.e., paperwork, material handling, meetings, etc.” An employee's failure to comply with the policy may result in discipline. A separate policy requires prior approval for overtime hours.

         WTI conducted a training in Rhode Island on October 21, 2013 at which the Time Reporting Policy was distributed. Plaintiffs and Kolasienski attended the Rhode Island training. In October 2013, Each Plaintiff read and understood the Time Reporting Policy and agreed to comply with it. Each Plaintiff acknowledged that the Time Reporting Policy requires him to report his time and expenses accurately and timely, and that in reporting his time, he is certifying that it is complete and correct.

         Honeywell also attended the training and presented a portion of it. This training also reviewed the job codes that technicians use to enter their time. These codes were provided to technicians in a “flip book” to make the time-entry process easy and efficient. The flip book included labor codes for work billed to WTI's customers, in addition to codes for non-billable tasks, such as administrative and training tasks. WTI has retained a third party vendor to receive employee complaints through an anonymous hotline and distributes information regarding the hotline number.

         Plaintiffs' ...

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