United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION & ORDER 
G. CORNELIUS U.S. MAGISTRATE JUDGE
Henry commenced this action against Wells Remodeling, LLC,
and Andrew Wells, alleging violations of the Fair Labor
Standards Act, 29 U.S.C. § 201, et seq. (Doc.
1). Pending before the undersigned is the defendants'
second motion for summary judgment. (Doc. 43). For the
reasons discussed below, the motion is due to be denied in
part and granted in part.
Remodeling, LLC, d/b/a Alabama ReBath ("Alabama
ReBath") provides bathroom remodeling services to
residential customers. (Doc. 44-7 at 1). Andrew Wells
("Wells") is the president of Alabama ReBath.
(Id.). Sometime during the first half of 2015,
Alabama ReBath hired John Henry ("Henry") as an
installer and agreed to pay him $20 per hour. (Id.
at 2; Doc. 44-1 at 39).
started his work days at the Alabama ReBath office. On his
arrival, Henry typically would unload demolition debris from
his company van and load materials required for that
day's job. (Doc. 44-1 at 7-8; Doc. 44-3 at 21-22; Doc.
46-1 at l). Alabama ReBath did not pay Henry for the
actual amount of time he spent performing these tasks (Doc.
44-7 at 2-3), and that time is not explicitly recorded on
Henry's time sheets or pay sheets (see, e.g.,
Doc. 44-5 at 42, 62). The defendants claim that based on
Wells' determination an installer could routinely unload
demolition debris and load job materials in 15-30 minutes and
that these tasks should rarely take more than 45 minutes to
complete, Alabama ReBath paid installers for 45 minutes of
"load/unload time" for each phase of a job. (Doc.
44-7 at 2-3). Wells testified that for Henry, this translated
to $15. (Id. at 3). Henry testified it typically took
between 45 minutes and one hour to unload debris and load job
materials and that it might have taken more than
one-and-one-half hours to perform these tasks on some days.
(Doc. 46-1 at 1; Doc. 46-1 at 1).
Henry was to receive compensation for load/unload time on a
given day, "yes" was recorded in a field for
load/unload time on his pay sheet. (See, e.g., Doc.
44-5 at 62). Henry's pay sheets for May and June 2015
indicate he was paid $15 for load/unload time on days he was
credited with that time. (Id. at 62-66). However,
Henry's pay sheets for July and August 2015 indicate
Henry was paid $11.25 for that time. (Id. at 67-76).
Whatever Henry was paid for load/unload time, neither the
estimated 45 minutes required to unload debris and load job
materials nor the actual time Henry spent performing these
tasks appears to have been counted towards Henry's
overtime. (See, e.g., Id. at 62). Henry's pay
sheets appear to calculate straight time and overtime based
solely on time spent on the job site, with load/unload time
added on top of that calculation. (See, e.g., id.).
Henry's pay sheets for May through August 2015 show he
worked 40 or more hours on the job site during some weeks.
(Id. at 62, 63, 65, 66, 68-70, 74-76).
unloading demolition debris and loading job materials, Henry
departed the Alabama ReBath office for the job site in his
company van. (Doc. 46-1 at 1). hi addition to job materials,
Henry carried personal and company tools in the van. (Doc.
44-7 at 5). Henry claims he was not always paid for travel
time from the Alabama ReBath office to the job site. (Doc.
46-1 at 1). He further claims that when was paid for this
time, his compensation was based on an estimate derived from
Google Maps, not his actual travel time, which was greater
than the estimated time. (Id. at 1-2). However
determined, travel time from the Alabama ReBath office to the
job site, like load/unload time, does not appear to have been
counted towards Henry's overtime. (See, e.g.,
Doc. 44-5 at 61).
typically returned his company van to the Alabama ReBath
office at the end of the day. (Doc. 44-1 at 20). The
defendants did not compensate Henry at all for return travel
time. (Doc. 44-7 at 3). Henry testified the defendants
required him to return his company van to the Alabama ReBath
office at the end of the day. (Doc. 44-1 at 20; Doc. 46-1 at
2). Wells testified Henry could drive the van home at the end
of the day if his home was closer to the job site than the
Alabama ReBath office. (Doc. 44-7 at 5). David Wilkinson, who
was employed by Alabama ReBath in a supervisory role,
testified Henry could drive his company van home at the end
of the day on occasion if the job site was close to his home,
but that otherwise he had to bring the van back to the
Alabama ReBath office. (Doc. 44-6 at 16; Doc. 44-10 at 17).
Henry acknowledged he sought and received permission to drive
the van home on two or three occasions. (Doc. 44-1 at 11;
Doc. 46-1 at 2). For some period of time in early-to-mid
September 2015, Henry did not work while his company van was
in the shop for repairs. (Doc. 44-8 at 122-28).
complained to Wells and Wilkinson about his compensation for
load/unload time and travel time. (Doc. 46-1 at 2-3; Doc. 51
at 28). Henry testified Wells appeared frustrated
and upset regarding Henry's complaints. (Doc. 46-1 at
2-3). Henry claims that in retaliation for his
complaints, Wells informed him and his co-workers they would
not be compensated for load/unload time at all. (Doc. 44-1 at
21; Doc. 46-1 at 2; Doc. 47 at 23). However, Henry's pay
sheets for the weeks leading up to September 1, 2015, show he
was paid for some load/unload time during each of those
weeks. (Doc. 44-5 at 62-76).
on September 1, 2015, Alabama ReBath paid Henry on a
commission, rather than an hourly basis. (Doc. 44-7 at 4).
Henry claims he never wanted to be paid on commission, which
resulted in a smaller rate of pay than his hourly rate. (Doc.
44-1 at 10-11; Doc. 46-1 at 3; Doc. 47 at 10). According to
Henry, he was transitioned to commission-based pay in
retaliation for his complaints regarding his compensation for
load/unload time and travel time. (Doc. Doc. 46-1 at 2-3;
Doc. 47 at 23). In support of their first motion for summary
judgment, the defendants calculated Henry's rate of pay
for each of the six weeks he was compensated on a commission
by dividing his hours for each week into his compensation for
each week. (Doc. 36 at 10). hi all but two of those weeks,
Henry's rate of pay exceeded his $20 hourly rate.
(Id.). Henry did not dispute the accuracy of this
calculation (Doc. 38), which formed a basis for the entry of
summary judgment in the defendants' favor on Henry's
unpaid wages and overtime claims for the period September 1,
2015, to October 26, 2015 (Doc. 42).
terminated Henry on October 26, 2015. (Doc. 44-3 at 52; Doc.
44-7 at 2). Wells did not give Henry a reason for his
termination. (Doc. 44-1 at 16; Doc. 44-3 at 54). Henry
testified he did not ask for one. (Doc. 44-1 at 16).
Wilkinson testified Wells did not have any conversation with
him about why Henry was no longer working for Alabama ReBath.
(Doc. 44-10 at 20, 28).
claims Wells terminated him because he continued to complain
about his compensation for load/unload time and travel time
and about his transition to commission-based pay. (Doc. 44-1
at 23; Doc. 46-1 at 3). Wells denied he terminated Henry
because of any complaints Henry made regarding pay. (Doc.
44-3 at 55). He testified he terminated Henry because (1)
Henry failed to communicate with him and other Alabama ReBath
employees for purposes of scheduling, (2) there were frequent
problems with Henry's jobs, for which Henry refused to
take responsibility, (3) Henry rebuffed Wells' efforts to
help him learn how to do his job more effectively and
efficiently, and (4) Henry generally had a poor attitude.
(Id. at 52-55).
did not discipline Henry for issues regarding his
communication, job performance, or attitude pursuant to a
progressive discipline policy included in the Alabama ReBath
Employee Handbook prior to terminating him. (Doc. 44-3 at
54). A prefatory paragraph to the policy states,
"progressive discipline is not appropriate in every case
and Alabama Re-Bath will review each case on its own
facts." (Doc. 44-4 at 47 (emphasis in original)). A note
at the end of the policy states, "[t]he progressive
discipline procedure outlined here is a general guideline
only and the management of Alabama Re-Bath is NOT
required to follow this procedure in every
case." (Id. at 50 (emphasis in original)).
Wells testified Alabama ReBath had an informal and liberal
approach to discipline at the time of Henry's employment.
(Doc. 44-3 at 18-19).
testified neither Wells nor Wilkinson ever discussed with him
issues regarding communication, timely completion of jobs,
scheduling, job performance, or attitude. (Doc. 44-1 at
11-12; Doc. 46-1 at 3). He notes that during a meeting to
discuss his transition to commission-based pay, he told Wells
there were no complaints regarding his jobs and that his jobs
were perfect. (Doc. 46-1 at 2). Wells responded by mentioning
a customer complaint but noting he was not trying to blame
Henry for the complaint, which he suspected had something to
do with "corporate." (Id.).
testified he personally did not have frustrations with
Henry's communication (Doc. 44-10 at 16), could only
guess at what specific issues Wells had with Henry's
communication (id.)and himself did not receive
complaints regarding the quality of Henry's work
(id. at 24). However, he also testified Wells was
frustrated with Henry's job performance in that it took
Henry longer than scheduled to complete jobs, which made it
difficult to schedule Henry for jobs, and that there were
"a lot of problems" on Henry's jobs. (Doc.
44-10 at 12, 14-16). Text messages from Wells to Henry in
October 2015 confirm Wells was frustrated with Henry's
communication as it related to scheduling. On Friday, October
2, 2015, after Henry told Wells he planned to have a customer
sign paperwork on the following Monday morning at 8:00 A.M.,
the following exchange ensued:
Wells: and what about monday's schedule?
and why couldn't you discuss this earlier? this is why we
struggle with scheduling and why we don't schedule ahead,
i can't have surprises, monday expects you to be there
around 8. so how do we do both? i tend to be okay with a lot
of things as long as they are not surprises because i
can't plan around surprises, so i would like to know your
plan for Monday being you have to be at two places at once,
how do we reconcile this?
Henry: Monday is not a problem as Gloria is
aware I am coming first thing to have that signed and I will
call the customer and make them aware of when I will be
arriving. I will take care of my end and I understand how
frustrating that can be to you worrying about it... .
Wells: i think you very well understand how
unforeseen items can cause a schedule delay . . . right? . .
. i've cleared out most of our issues, but right now
what's left is and seems to still be is communication[. ]
Wells: so the next thing to address is
communication, you have to communicate items like this with
me or us. if there was an issue with gloria, it would've
been nice to know Wednesday or as soon as you know so we can
address it together[.]
(Doc. 44-9 at 3-4). On Friday, October 16, 2015, after Henry
told Wells he would be available for another job on the
following Tuesday, the following exchange ensued:
Wells: ugh. we already scheduled you
monday[.] why would you say this on friday[.] last week you
told us you were good for monday[.] i mean this week on
Henry: I'm in the bathroom.
Wells: are you joking or serious, i need to
know what to do as it's already scheduled and unsure if i
now have to unscheduled this[.]
Henry: Is Tuesday out of the question?
Wells: well we just booked him. so yes.
otherwise we keep doing the very thing we have been trying so
hard to avoid, the whole point of not scheduling ahead unless
you say something was to keep us from rescheduling, it takes
a lot of time chasing them around all the time, and the
uncertainty of the rest of the week makes it difficult to
schedule anything else[.] now that you finally told us ahead
like we asked, we did what we said which is we scheduled
ahead, now you're asking us to undo this[.]
Wells: what would solve my problem in
scheduling is communication, in a nut shell[.] you
communicate, we schedule, you become predictable, we schedule
without having to communicate [.] . . . help me with
communication, i don't know how to fix this but i'm
doing the best i can[.]
(Id. at 8-10). Text messages from Wells to Henry in
October 2015 also show Wells believed there to be problems
with the quality of Henry's work and that Henry denied
responsibility for the alleged problems. On October 26, 2015,
the day of Henry's termination, Wells and Henry exchanged
text messages ...