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Turner v. BFI Waste Services, LLC

United States District Court, D. South Carolina, Charleston Division

August 7, 2017

DARREN TURNER, on behalf of himself and others similarly situated, Plaintiff,
v.
BFI WASTE SERVICES, LLC d/b/a REPUBLIC SERVICES; REPUBLIC SERVICES OF SOUTH CAROLINA, LLC d/b/a REPUBLIC SERVICES; and REPUBLIC SERVICES, INC., Defendants.

          ORDER

          DAVID C. NORTON, UNITED STATES DISTRICT JUDGE.

         This matter is before the court on a motion for partial summary judgment filed by defendants BFI Waste Services d/b/a Republic Services, Republic Services of South Carolina, LLC d/b/a Republic Services, and Republic Services Inc. (collectively “Republic”) and a motion for conditional class certification pursuant to the Fair Labor Standards Act (“FLSA”) filed by plaintiff Darren Turner (“Turner”). For the reasons set forth below, the court denies Republic's motion for partial summary judgment and grants Turner's motion for conditional class certification.

         I. BACKGROUND

         Turner is a residential waste disposal driver for Republic. Turner originally worked at Republic's North Charleston, South Carolina location. On April 22, 2014, he transferred to Republic's Concord, North Carolina location. For completing his trash collection route, Turner was paid a “day rate, ” which was $135.00 per day at the time of his initial hire in North Charleston, South Carolina and $152.13 per day in Concord, North Carolina. ECF No. 44 at 2. In addition to this day rate, Turner was paid on an hourly basis for a variety of required tasks, including: (1) “help pay” for time spent collecting trash on another employee's route, and (2) “downtime” for when his truck was inoperable, when he was attending a safety meeting, or when he was training another driver. The hourly rates were added together with the “day rate” to come to the “total wages” for the week, which was divided by the total number of hours worked during the week to arrive at the “regular rate” of pay. When calculating overtime, Republic would pay half of that regular rate as the overtime premium.

         After Turner began his employment at the North Charleston, South Carolina location of Republic, he was allegedly regularly required to work more than 40 hours per week. Turner alleges that he and other drivers received only half-time pay for hours worked over 40, instead of receiving overtime at a rate of time and a half the “regular rate” based on a 40-hour work week. On August 17, 2016 Turner filed suit citing violations of the FLSA's overtime provisions, alleging that: (1) Republic miscalculated his and other drivers' regular rate of pay, paying them overtime at an illegally low rate of pay (“regular rate theory”), and (2) Republic automatically deducted a thirty minute meal break each shift even though drivers regularly worked through the meal period, thus failing to pay all owed overtime (“meal break theory”).

         Turner filed a motion for conditional certification of a collective action under the FLSA on October 4, 2016, ECF No. 15, to which Republic responded on November 1, 2016, ECF No. 25, and Turner replied on January 16, 2017, ECF No. 44. Republic filed a motion for partial summary judgment on Turner's regular rate claim on November 1, 2016, ECF No. 25, to which Turner responded on January 16, 2017, ECF No. 44, and Republic replied on February 7, 2017. ECF No. 49. The court held a hearing on March 8, 2017. After the hearing, Republic filed supplemental briefing on April 10, 2017 to which Turner responded on April 13, 2017. The motion has been fully briefed and is now ripe for the court's review.

         II. STANDARD

         A. Motion for Summary Judgment

         Summary judgment is appropriate “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). “Rule 56(c) of the Federal Rules of Civil Procedure requires that the district court enter judgment against a party who, ‘after adequate time for discovery . . . 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 of proof at trial.'” Stone v. Liberty Mut. Ins. Co., 105 F.3d 188, 190 (4th Cir. 1997) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). Any reasonable inferences are to be drawn in favor of the nonmoving party. See Webster v. U.S. Dep't of Agric., 685 F.3d 411, 421 (4th Cir. 2012). However, to defeat summary judgment, the nonmoving party must identify an error of law or a genuine issue of disputed material fact. See Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); see also Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003).

         Although the court must draw all justifiable inferences in favor of the nonmoving party, the nonmoving party must rely on more than conclusory allegations, mere speculation, the building of one inference upon another, or the mere existence of a scintilla of evidence. See Anderson, 477 U.S. at 252; Stone, 105 F.3d at 191. Rather, “a party opposing a properly supported motion for summary judgment . . . must ‘set forth specific facts showing that there is a genuine issue for trial.'” Bouchat, 346 F.3d at 522 (quoting Fed.R.Civ.P. 56(e) (2002) (amended 2010)). If the adverse party fails to provide evidence establishing that the factfinder could reasonably decide in his favor, then summary judgment shall be entered “regardless of ‘[a]ny proof or evidentiary requirements imposed by the substantive law.'” Id. (quoting Anderson, 477 U.S. at 248).

         B. Motion for Conditional Certification

         Under the § 216(b) of the FLSA, plaintiffs may institute a collective action against their employer on behalf of themselves and other similarly situated employees. The collective action procedures of § 216(b) require similarly situated employees to give their consent before joining a collective action. Id. “In order to expedite the manner in which collective actions under the FLSA are assembled, ‘district courts have discretion[, ] in appropriate cases[, ] to implement . . . § 216(b) . . . by facilitating notice to potential plaintiffs.'” Purdham v. Fairfax Cnty. Pub. Sch., 629 F.Supp.2d 544, 547 (E.D. Va. 2009) (quoting Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 169 (1989)). To obtain the benefits of this court-approved notice procedure, plaintiffs must demonstrate that the proposed class members are “similarly situated” and that notice is “appropriate.” Id. at 548. Notice is “appropriate” where the proposed class members' claims “share common underlying facts and do not require substantial individualized determinations for each class member.” Id.; MacGregor v. Farmers Ins. Exch., No. 2:10-cv-03088, 2012 WL 2974679, at *2 (D.S.C. July 20, 2012). Ordinarily, the plaintiff's burden at the conditional certification stage is fairly lenient, requiring only a modest factual showing that members of the proposed class are “victims of a common policy or plan that violated the law.” Purdham, 629 F.Supp.2d at 547-48; Regan v. City of Charleston, S.C., No. 2:13-cv-3046, 2014 WL 3530135, at *2 (D.S.C. July 16, 2014) reconsideration denied, 40 F.Supp.3d 698 (D.S.C. 2014); Essame v. SSC Laurel Operating Co. LLC, 847 F.Supp.2d 821, 824-25 (D. Md. 2012).

         III. DISCUSSION

         A. Motion for Partial Summary Judgment

         Republic moves for partial summary judgment on Turner's FLSA claim that Republic failed to pay Turner overtime at a rate not less than one and one-half times his regular rate of pay (the “regular rate claim”). The court finds that there is a genuine issue of material fact sufficient to preclude summary judgment as to whether there was a “clear and mutual understanding” that Turner was truly an hourly employee such that the regular rate for the purpose of overtime calculations should have been Turner's hourly wage.[1]

         1.Calculating ...


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