United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, Jr., District Judge.
This matter is before the Court on defendant's motion for summary judgment. Plaintiff has not filed a response and the time for doing so has expired. The motion is ripe for disposition. For the following reasons, the Court will grant the motion.
Plaintiff Anthers Cage was a cable installer for defendant Multiband, Inc. from July 2007 to February 2010. Plaintiff filed this multi-count action against Multiband alleging claims of race discrimination and retaliatory discharge under Title VII of the Civil Rights Act, failure to pay overtime and retaliatory discharge under the Fair Labor Standards Act (FLSA), and wrongful discharge in violation of public policy.
In accordance with this Court's Case Management Order, on August 29, 2014, defendant filed its motion for summary judgment. On September 19, 2014, plaintiff's counsel filed a motion for leave to withdraw indicating a strained relationship between plaintiff and counsel such that counsel could no longer represent plaintiff and that plaintiff had advised counsel that he intended to seek new counsel. At the same time, plaintiff's counsel filed a request for an extension of plaintiff's deadline to respond to defendant's motion for summary judgment. The Court granted the motion to withdraw and entered an Order extending plaintiff's response deadline to October 20, 2014.
On November 17, 2014, the Court sua sponte issued an Order providing notice to plaintiff that if he did not respond to the motion for summary judgment within twentyone days it would be taken up as an unopposed motion. On December 12, 2014, plaintiff requested an additional thirty to sixty days to obtain counsel. Plaintiff's request failed to state any reason why he had been unable to obtain counsel or why he needed additional time to obtain counsel. Defendant opposed the motion. The Court denied the motion finding plaintiff had been given sufficient time to obtain new counsel following the withdrawal of counsel. Plaintiff did not file a response to the motion for summary judgment.
II. Summary Judgment Standard
Pursuant to Federal Rule of Civil Procedure 56(a), a district court may grant a motion for summary judgment if all of the information before the court demonstrates that "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The burden is on the moving party. City of Mt. Pleasant, Iowa v. Associated Elec. Co-op. Inc., 838 F.2d 268, 273 (8th Cir. 1988). After the moving party discharges this burden, the nonmoving party must do more than show that there is some doubt as to the facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Instead, the nonmoving party bears the burden of setting forth affirmative evidence and specific facts by affidavit and other evidence showing that there is a genuine dispute of a material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Celotex, 477 U.S. at 324.
The movant's statement of facts are deemed admitted if not specifically controverted by the opposing party. E.D. Mo. L.R. 4.01 (E). Even where all of movant's facts are deemed admitted, the Court must look at the entire record to determine whether summary judgment is warranted. "The Eighth Circuit has determined that when a plaintiff fails to respond adequately to a motion for summary judgment, a district court should not treat such a non-response as sufficient to dispose of the motion." Lowry v. Powerscreen USB, Inc., 72 F.Supp.2d 1061, 1064 (E.D. Mo. 1999) (citing Canada v. Union Electric Co., 135 F.3d 1211, 1213 (8th Cir. 1997). "Courts should proceed to examine those portions of the record properly before them and decide for themselves whether the motion is well taken." Id. "In so ruling, even on an unopposed motion for summary judgment, the court should review the facts in a light most favorable to the party who would be opposing the motion." Id.
Plaintiff failed to specifically controvert defendant's statement of facts and, therefore, those facts are deemed admitted for this motion. O'Connell v. Accurate Plumbing, LLC, 4:04CV1368 FRB, 2005 WL 2176926, at *2 (E.D. Mo. Sept. 8, 2005) (citing Northwest Bank & Trust Co. v. First Ill. Nat'l Bank, 354 F.3d 721, 724-25 (8th Cir. 2003); Harris v. Interstate Brands Corp., 348 F.3d 761, 762-63 (8th Cir. 2003)). The undisputed facts, as supported by the record, are set forth below.
Multiband, via its subsidiaries, maintains DIRECTV's installations, service, and upgrades for residential and commercial digital media services. Multiband maintains office locations throughout the United States, including an office in Paducah, Kentucky. Among many other types of workers, Multiband employs technicians to install, repair, and upgrade equipment for its customers.
Cage was employed as a technician for Multiband in the Paducah location from July 19, 2007 to February 12, 2010. During all times relevant to the amended complaint, certain Multiband technicians, including plaintiff, were represented by the Communication Workers of America (the "Union"). A Collective Bargaining Agreement (CBA) between the Union and Multiband was in effect at all times relevant to this case. Cage was subject to the CBA beginning in 2008.
Pursuant to the terms of the CBA, Multiband technicians, including Cage, are classified as "job based" employees and compensated at a piece rate, receiving a certain amount for each piece of work they perform. Cage agrees the piece rate is meant to incorporate payment for all the work performed for each job. In addition to the piece rate, job based technicians received an overtime premium of time and one-half. Multiband calculates that premium by taking the weekly gross compensation for a job based technician, including production work only, and dividing by the hours worked in the week to determine a rate per hour. The hourly rate is then divided by two to determine one half of the hourly rate. One half of the hourly rate is then multiplied by the hours worked, in excess of forty, to determine the amount of the overtime premium. Cage agrees Multiband calculated and paid him overtime in the manner described.
At all times relevant to this lawsuit, Multiband maintained a set of written employment policies. Cage signed a Receipt and Acknowledgement for the Policy Manual on July 26, 2007. Multiband maintains a written policy that job based technicians are expected to arrange their schedule, have meals, and take breaks in a manner that will allow them to complete their work in no more than forty hours per week. Multiband's written policy requires employees to obtain advance written approval before working overtime.
Multiband provided Cage with a vehicle to use while traveling to customer work sites. Cage executed a Vehicle Assignment Agreement when he received the vehicle from Multiband. Cage did not have to obtain any special licenses to drive his Multiband vehicle and parked the vehicle in his driveway. Multiband has a written policy that the time a technician spends traveling to each customer site to perform work is counted as compensable work time. Multiband has a written policy indicating that employees who believe there is an error in their pay should contact the corporate payroll office immediately. Cage alleges he complained to a supervisor and various Union members about not receiving compensation for his commute to work each day. However, Cage did not report to Multiband, as hours worked or as overtime, the time it took him to drive from his home to the first job of the day.
At the time he was hired, Cage knew he was assigned to work in the Southeast Missouri region and that he would be required to travel throughout Missouri. At the time he was hired, Cage knew Multiband required him to attend weekly technician meetings. Multiband maintains a written policy that employees are responsible for accurately recording and reporting all time worked. If Cage reported to Multiband his attendance at a weekly technician meeting, Multiband compensated him for his attendance. Cage alleges he reported his attendance at weekly technician meetings about half the time. Cage never complained to anyone at Multiband about having to attend to weekly technician meetings.
Cage claims he kept handwritten notes on scraps of paper each week indicating the hours over forty he worked for Multiband, but did not provide those notes to Multiband. In determining how many hours he worked over forty each week for the purposes of this lawsuit, Cage included the time each day, "from when I woke up in the morning [to] when I done my last job [...]." To calculate how many hours he worked each day for the purposes of this lawsuit, Cage looked at each work order and assigned a particular amount of time based on the ...