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Henry v. Wells Remodeling, LLC

United States District Court, N.D. Alabama, Southern Division

January 9, 2019

JOHN HENRY, Plaintiff,
WELLS REMODELING, LLC, et al, Defendants.



         John 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.

         I. Facts[2]

         Wells 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).[3]

         Henry 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).[4] 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).[5] 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).

         If 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).

         After 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).

         Henry 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).

         Henry 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).[6] Henry testified Wells appeared frustrated and upset regarding Henry's complaints. (Doc. 46-1 at 2-3).[7] 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).

         Beginning 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).

         Wells 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).

         Henry 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).

         Wells 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).

         Henry 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.).

         Wilkinson 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.)[8]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 wed[.]
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 ...

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