United States District Court, D. South Carolina, Greenville Division
OPINION AND ORDER
BRUCE HOWE HENDRICKS, District Judge.
The Plaintiff, Christopher Linnville ("Linnville"), was employed by the defendant, RW Properties, LLC d/b/a Gallery of Homes of the Upstate ("RW Properties") from November 2008 through December 13, 2011. RW Properties sells manufactured homes and performs "setup" of those homes. (Deposition of Randal Walker 6:7-24, ECF No. 33-2.) "Setup" involves delivering a manufactured home, securing it to the property, running sewer and water lines, installing vinyl siding, sheetrock, crown molding, and seam carpet, and then conducting a walkthrough to ensure that everything is ready for the customer. ( Id. at 7:2-21.) Additionally, RW Properties also provides services when claims are made on the warranties for the homes. ( Id. 8:1-8.)
During Linnville's employment, he worked as a service technician, performed lead trim and "finish out" work on manufactured homes, and vehicle escort duties. (Deposition of Christopher Linnville 28:16-24, ECF No. 32-3.) He was initially hired for "setup, " but was subsequently moved to the "inside crew" and his primary duties appear to have involved work on the interior portion of homes that were being set up. ( See Walker Dep. 10:2-21). Randall Walker who appears to have been Linnville's boss, described his responsibilities as follows:
[He would] lag the floors, lag the ceilings, bolt them together, align the walls on the inside, and hang the sheetrock, and then they hang the crown molding and the baseboard molding and seam the carpet. And then I have a sheetrock finisher that would come in if it was a drywall house.... And then Chris [Linnville] would come back afterwards, or the interior guys would come back afterwards and do fit and finish and adjust doors and make sure everything was perfect for the customer.
( Id. at 14:6-18). Linnville also testified that he worked in "service" handling warranty calls after houses had been set up. ( See Linnville Dep. 24:1-12.)
Finally, Linnville testified that occasionally, he would serve as an escort, driving a small vehicle in front of the "toter" that was pulling the manufactured home. ( See id. 29:1-7.) He estimated that he did this approximately "four times a year" and that it typically took "[a]bout a half a day, depending on the lot where the house was being transported to and the distance." ( Id. 29:8-15.) When asked if he thought that Linnville fell under a "driver escort exemption" to the FLSA, Walker responded, "He drove an escort. That wasn't his full-time job. Most of his job was the setup and everything. He would drive occasionally, but occasionally he did drive a dually with - pulling an F-350; but it wasn't a significant part of his workload." (Walker Dep. 29:18-23.) Walker testified that he recalled Linnville driving approximately four times per month, but indicated that there would be no record showing when he was driving as opposed to performing other duties. ( Id. 29:24-30:14.)
It appears that sometime around December of 2009, the defendant altered the way that it compensates its employees, changing from hourly pay, under which it presumably paid its employees overtime, to daily pay without overtime (or with some overtime calculated into the daily rate) ( Id. 23:8-22.) The plaintiff alleges that he questioned the defendant about overtime and was told if he did not like it he could quit. The plaintiff was terminated in December of 2011, but waited over a year to file this action.
2. Procedural History
Plaintiff filed his initial complaint on March 1, 2011 (ECF No. 1.) The defendant moved to dismiss for failure to state a claim (ECF No. 7), and the plaintiff filed an amended complaint (ECF No. 9.) The defendant then filed an Amended motion to dismiss (ECF No. 13) raising some of the same arguments about the statute of limitations that are raised in the motion at hand. On October 9, 2013, Judge Lewis, to whom the case was previously assigned, issued an order denying the motions to dismiss. The defendant filed a motion for summary judgment (ECF No. 32) on May 27, 2014, and the plaintiff responded in opposition (ECF No. 33.) The defendant did not file a reply to the response in opposition. On June 27, 2014, the case was transferred to the undersigned. On August 20, 2014, the Court granted the parties joint motion to stay the case pending resolution of the motion for summary judgment, which is now before this Court.
STANDARD OF REVIEW
A court should grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(a). In deciding whether a genuine issue of material fact exists, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in his favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The moving party bears the initial burden of demonstrating that summary judgment is appropriate; if the party moving for summary judgment carries its burden, then the burden shifts to the non-moving party to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
A party asserting that a fact is genuinely disputed must support the assertion by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." Fed.R.Civ.P. 56 (c)(1)(A). A litigant "cannot create a genuine issue of material fact through mere speculation or the building of one inference upon another." Beale v. Hardy, 769 F.2d 213, 214 (4th Cir.1985). "Mere unsupported ...