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Jeffrey A. Wink v. David Ott and Fine Line Trim LLC

May 21, 2012


The opinion of the court was delivered by: Chief Judge Kane


Presently pending before the Court is Plaintiff's motion for summary judgment. (Doc. No. 13.) For the reasons stated more fully herein, the Court will deny the motion.


Plaintiff Jeffrey A. Wink worked as a trim carpenter for Defendant Fine Line Trim, LLC ("FLT") from May 4, 2006 until November 21, 2010. (Doc. No. 14 ¶¶ 1, 52; Doc. No. 17 ¶¶ 1, 52.) After Plaintiff was hired, Defendants issued him a company vehicle. (Doc. No. 14 ¶¶ 3-4; Doc. No. 17 ¶¶ 3-4.) Plaintiff and other FLT employees used the vehicle to travel to distant work sites as well as to transport tools. (Doc. No. 14 ¶¶ 6, 12; Doc. No. 17 ¶¶ 6, 12.) The gross weight of the vehicle did not exceed 10,000 pounds, and no more than six FLT employees traveled in the van at any given time. (Doc. No. 14 ¶¶ 35-37; Doc. No. 17 ¶¶ 35-37.)

According to Defendants, FLT employees who were working at a distant work site had three options: (1) they could commute to and from the work site at their own expense; (2) they could stay overnight near the job site at FLT's expense; or (3) they could meet co-workers at a "rendezvous point" from which one of the co-workers would drive to the work site, with Defendant FLT compensating them for fuel and toll expenses. (Doc. No. 17 ¶ 6.) Defendants assert that Plaintiff would elect the third option on "days when the Plaintiff was a crew leader or lead carpenter" and there were other employees working at the same distant work site. (Id.) According to Plaintiff, on all such days, he would drive his co-workers to and from the work site. (Doc. No. 14 ¶¶ 6, 9-10.)

Defendant FLT required Plaintiff to submit weekly time sheets. (Doc. No. 14 ¶ 14; Doc. No. 17 ¶ 14.) According to Plaintiff, neither he nor other employees indicated the amount of time that they spent driving on the time sheets, and Defendant FLT had no way of determining the amount of time an employee spent driving on a given day. (Doc. No. 14 ¶¶ 20-21, 28-29.) Defendants, however, assert that employees were paid for the time they spent driving to a distant work site, that most of the time sheets identified the amount of time an employee spent driving, and Defendant David Ott, the managing member of Defendant FLT, was in daily contact with Plaintiff and would ascertain the number of hours that Plaintiff or other employees had spent driving during each week. (Doc. No. 14 ¶ 18; Doc. No. 17 ¶¶ 18, 20-21, 29, 45.) According to Defendants, Defendant Ott would review the time sheets each week and "because of the small size of the company, he was able to ascertain at the time in question, who had been doing driving the previous week." (Doc. No. 17 ¶ 22.) After determining the total number of hours of straight pay and the total number of overtime hours for each employee based on the time sheets, Defendant Ott would then provide that information to his wife, Jerrica C. Ott, who would enter the information into the payroll data system. (Doc. No. 14 ¶¶ 30-32; Doc. No. 17 ¶¶ 30-32.) FLT employees were paid "straight time," not overtime, for the amount of time that they spent driving to distant work sites. (Doc. No. 14 ¶ 23; Doc. No. 17 ¶ 23.) Plaintiff disputes the fact that Defendant Ott instructed his wife to differentiate between work hours and driving hours when entering the information into the payroll data system. (Doc. No. 14 ¶ 33.)

Plaintiff received three pay raises between September 26, 2006 and April 2010. (Doc. No. 17 ¶¶ 24-26.) On September 26, 2006, his salary was increased from $15.00 per hour to $15.25 per hour. (Doc. No. 14 ¶ 24; Doc. No. 17 ¶ 24.) On April 23, 2008, his salary was increased to $16.25 per hour. (Doc. No. 14 ¶ 25; Doc. No. 17 ¶ 25.) In April 2010, his salary was increased to $17.25 per hour. (Doc. No. 14 ¶ 26; Doc. No. 17 ¶ 26.) The parties dispute whether Plaintiff was ever compensated for his drive time. Plaintiff asserts that Defendants never compensated him for 2,035 hours of drive time, but Defendants assert that Plaintiff's pay included his drive time for which he was paid straight pay. (Doc. No. 14 ¶¶ 27, 41; Doc. No. 17 ¶¶ 28, 41.) Plaintiff asserts that he is entitled to $49,613.33, an amount constituting 2,035 hours of drive time at a rate of $24.38 per hour. (Doc. No. 14 ¶ 42.) Plaintiff also asserts that he did not receive all of the overtime pay to which he was entitled and is entitled to $1,617.94 of overtime, which Defendants dispute. (Doc. No. 14 ¶¶ 43, 50-51.) Finally, Plaintiff states that when he was not paid for his drive time, "the shortages in the wage payments made exceed five percent (5%) of the gross wages payable on any two regularly scheduled paydays in the same calendar quarter." (Doc. No. 14 ¶ 47.)


Rule 56(a) of the Federal Rules of Civil Procedure provides that summary judgment is warranted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A factual dispute is material if it might affect the outcome of the suit under the applicable law, and it is genuine only if there is a sufficient evidentiary basis that would allow a reasonable fact finder to return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). At summary judgment, the inquiry is whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law. Id. at 251-52. In making this determination, the Court must "consider all evidence in the light most favorable to the party opposing the motion." A.W. v. Jersey City Pub. Schs., 486 F.3d 791, 794 (3d Cir. 2007).

The moving party has the initial burden of identifying evidence that it believes shows an absence of a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 145-46 (3d Cir. 2004). Once the moving party has shown that there is an absence of evidence to support the non-moving party's claims, "the non-moving party must rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal memoranda, or oral argument." Berckeley Inv. Grp.. Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006); accord Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). If the non-moving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden at trial," summary judgment is warranted. Celotex, 477 U.S. at 322. With respect to the sufficiency of the evidence that the non-moving party must provide, a court should grant summary judgment where the non-movant's evidence is merely colorable, conclusory, or speculative. Anderson, 477 U.S. at 249-50. There must be more than a scintilla of evidence supporting the non-moving party and more than some metaphysical doubt as to the material facts. Id. at 252; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Further, a party may not defeat a motion for summary judgment with evidence that would not be admissible at trial. Pamintuan v. Nanticoke Mem'l Hosp., 192 F.3d 378, 387 (3d Cir. 1999).


In his complaint, Plaintiff raises the following counts against Defendants: (1) a violation of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et seq.; (2) a violation of the Pennsylvania Minimum Wage Act ("PMWA"), 43 Pa. Stat. § 333.101, et seq.; and (3) a violation of the Pennsylvania Wage Payment and Collection Law ("PWPCL"), 43 Pa. Stat. § 260, et seq. (Doc. No. 1.) The Court will address each count in turn.

A. FLSA Claim

In Count I of his complaint, Plaintiff alleges that Defendants violated Section 207 of the FLSA. The FLSA "established a comprehensive remedial scheme requiring a minimum wage and limiting the maximum number of hours worked, absent payment of an overtime wage for all hours worked in excess of the specified maximum number." Lamon v. City of Shawnee, Kan., 972 F.2d 1145, 1149 (10th Cir. 1992). Section 207 provides in relevant part that, subject to certain exceptions, those employees who work in excess of forty hours in a workweek are entitled to compensation at a rate of one-and-one-half times their regular rate of pay. 29 U.S.C. § 207(a)(1). "In order to prevail on a FLSA overtime claim, 'plaintiffs must show that they 'performed work for which [they were] not properly compensated.'" Fed. Air Marshals v. United States, 84 Fed. Cl. 585, 592 (Fed. Cl. 2008) (quoting Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946)). ...

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