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Smith v. Schwan's Home Service, Inc.

United States District Court, D. Maine

November 25, 2014



JOHN A. WOODCOCK, Jr., Chief District Judge.

In this wage and hour action, Michael Smith claims that his former employer, Schwan's Home Service, Inc. (Schwan's), violated federal and state law by failing to pay him overtime. In view of the vigorously disputed record, the Court concludes that under Federal Rule of Civil Procedure 56, there are genuine disputes of material fact that require jury resolution, and denies Schwan's motion for summary judgment.


A. Procedural History

On June 19, 2013, Michael Smith filed a complaint against Schwan's, alleging that Schwan's violated the Maine overtime statute, 26 M.R.S. § 664, and the federal Fair Labor Standards Act, 29 U.S.C. § 207, and that Schwan's has been unjustly enriched. Compl. (ECF No. 1). On October 30, 2013, Schwan's answered the Complaint, denying its essential allegations and asserting several affirmative defenses. Def.'s Answer to Pl.'s Compl. (ECF No. 7). On January 9, 2014, Schwan's filed an amended answer. Def.'s First Am. Answer to Pl.'s Compl. (ECF No. 19).

On May 29, 2014, Schwan's filed a motion for summary judgment with a supporting statement of material facts. Def.'s Mot. for Summ. J. (ECF No. 25) ( Def.'s Mot. ); Separate Statement of Uncontroverted Facts (ECF No. 26) (DSMF). Mr. Smith responded to Schwan's motion and its statement of material facts, and filed a statement of additional material facts on June 19, 2014. Pl. Michael Smith's Resp. to Def.'s Mot. for Summ. J. (ECF No. 31) ( Pl.'s Opp'n ); Pl.'s Opp'n to Def.'s Statement of Material Facts (ECF No. 32) (PRDSMF); Pl.'s Statement of Additional Material Facts (ECF No. 32) (PSAMF). On July 3, 2014, Schwan's filed a reply to Mr. Smith's response and to his statement of additional material facts. Schwan's Home Serv., Inc.'s Reply Mem. of Points and Authority in Further Support of its Mot. for Summ. J. (ECF No. 34) ( Def.'s Reply ); Schwan's Home Serv., Inc.'s Reply Statement of Uncontroverted Facts in Further Support of its Mot. for Summ. J. (ECF No. 35); Def.'s Resps. to Pl.'s Statement of Additional Material Facts (ECF No. 35) (DRPSAMF).[1]

B. Factual Background[2]

1. General Background regarding Schwan's Shared Services, LLC and Schwan's Home Service, Inc.

a. Schwan's Shared Services, LLC

Schwan's Shared Services, LLC (Shared Services) assists in maintaining a "Driver Qualification File" on employees working in positions subject to the United States Department of Transportation (DOT) regulations. DSMF ¶ 27; PRDSMF ¶ 27. The "Facility Supervisor" position for Schwan's is subject to DOT regulations. Id.

Shared Services continuously monitors driving information, hours of service records, Medical Examination Card renewals, as well as reviews and audits "Driver Qualification Files" of drivers, manages DOT-required drug and alcohol testing, and assists in the investigation of non-compliance with DOT regulations and the imposition of discipline for any violations. Id. [3]

b. Schwan's Home Service, Inc.

i. The Manufacturing and "Caselots" Process

Since at least 1990, Schwan's food products have been manufactured in at least seven states, and it owns each of the manufacturing facilities in these states. DSMF ¶ 28; PRDSMF ¶ 28. Schwan's generally obtains immediate title to all food products manufactured by it, whereas it obtains title to all food products manufactured by copackers when it takes delivery at the manufacturing site or at one of its distribution centers. DSMF ¶ 29; PRDSMF ¶ 29. After obtaining title, Schwan's retains title until the product is delivered to its customer. Id.

The food products are shipped in "caselots"-large shipping containers of numerous individual sales units-to its distribution centers in various locations, and then to hundreds of depots across the continental United States via "long-haul, overthe-road trucks." DSMF ¶ 30; PRDSMF ¶ 30. Upon arrival at a depot, these caselots are broken down and loaded onto smaller delivery trucks. DSMF ¶ 31; PRDSMF ¶ 31. This process of loading and unloading is performed by a Material Handler under the supervision of a Facility Supervisor. Id. [4] These products are then stored at the depot until delivered to customers. DSMF ¶¶ 32-33; PRDSMF ¶¶ 32-33.

ii. The Delivery Process and the Delivery Trucks

When Schwan's products travel in interstate commerce to reach customers, Schwan's does not use long-haul, over-the-road trucks to deliver the products from the distribution centers directly to individual consumers due to safety and efficiency concerns. DSMF ¶¶ 34-35; PRDSMF ¶¶ 34-35. The delivery trucks have a gross vehicle weight rating (GVWR) in excess of 10, 001 pounds, meaning that the vehicles are subject to the requirements of the DOT's Federal Motor Carrier Safety Regulations (FMCSR). DSMF ¶ 36; PRDSMF ¶ 36.

iii. Facility Supervisors' Duties and Responsibilities under the FMCSR and DOT

Because Facility Supervisors at Schwan's must operate commercial motor vehicles, they must follow the requirements set forth under the FMCSR. DSMF ¶ 37; PRDSMF ¶ 37. These requirements include: (1) an annual "Certification of Compliance"; (2) a DOT medical examination occurring every two years or at the interval established by the medical examiner, which may be less than every two years based on a medical condition; (3) passing a DOT road test; and (4) performing daily post and pre-trip-required vehicle inspections. Id. [5]

During the course of operating DOT-regulated commercial motor vehicles, Facility Supervisors must travel to and from the fleet maintenance provider, shuttling product as well as the vehicles themselves among depots and/or to the "Route Sales Representatives" in the field. DSMF ¶ 38; PRDSMF ¶ 38.

The following documents were found in Mr. Smith's personnel file, evidencing the DOT's regulation of him: (1) Request and Consent for Information on Alcohol Testing, Drug Testing and Vehicle Accident History from Schwan's Application for Employment; (2) January 2007 Certificate of Violations; (3) December 2007 Certificate of Violations; (4) December 2008 Certificate of Violations; (5) December 2009 Certificate of Violations; (6) December 2010 Certification of Violations; (7) 2007 Medical Examiner's Certificate sign-off for DOT positions; (8) 2009 Medical Examiner's Certificate sign-off for DOT positions; (9) 2007 Fleet Safety Policies and Procedures Acknowledgment Sign-Off; (10) 2007 Certificate of Road Test; and (11) Substance Abuse Awareness Training for DOT Compliance. DSMF ¶ 47; PRDSMF ¶ 47.

iv. Schwan's and the DOT

Schwan's has complied with DOT regulations concerning qualifications and hours of service for its Facility Supervisors, as well as safety for its vehicles, since its creation over 60 years ago. DSMF ¶ 39; PRDSMF ¶ 39. In addition, the DOT issued Schwan's an operating certificate with a motor carrier fleet number. DSMF ¶ 40; PRDSMF ¶ 40. If Schwan's did not comply with DOT regulations, the DOT would have the power to withdraw Schwan's fleet number and shut down the company's interstate operations if it believed the company was non-compliant. DSMF ¶ 41; PRDSMF ¶ 41.

In 1994, Schwan's requested an opinion from the DOT as to whether Schwan's operations are governed by the FMCSR. DSMF ¶ 42; PRDSMF ¶ 42. The facts set forth in Schwan's letter to the DOT have not materially changed since it was written. DSMF ¶ 43; PRDSMF ¶ 43. In June 1994, the DOT responded with its opinion, expressly notifying Schwan's that it was subject to DOT and Federal Highway Administration jurisdiction. DSMF ¶ 44; PRDSMF ¶ 44.[6] Schwan's has been subject to various audits and reviews to ensure regulatory compliance, including on-site reviews, depot audits, and ongoing road side inspections. DSMF ¶ 48; PRDSMF ¶ 48.

2. The "Position Description": The Duties and Responsibilities of a Facility Supervisor at Schwan's Home Service, Inc.

According to the "Position Description, " Facility Supervisors are supposed to execute the "company's Good Warehouse Practices (GWP) and follow[] any government regulations concerning EPA, OSHA, all food safety regulations, and other safety-related regulations, as specified in the company's manual." PSAMF ¶ 20; DRPSAMF ¶ 20; DSMF ¶ 3; PRDSMF ¶ 3.[7] Facility Supervisors are also responsible for "proper product handling (depot sales under $3, 000, 000 annually) and safety, warehouse maintenance and employee safety, " which falls under the umbrella of "daily management and operation of the warehouse facility within Schwan's GWP Guidelines." PSAMF ¶ 20; DRPSAMF ¶ 20; DSMF ¶ 4; PRDSMF ¶ 4.[8]

Additional duties of a Facility Supervisor include hiring, training, supervising, and managing the performance of the Material Handlers who carry out warehouse operation duties, as well as scheduling Material Handlers' hours. DSMF ¶ 5; PRDSMF ¶ 5. The Position Description also includes the duty to "manage designated fleet management responsibilities which includes maintaining DOT compliance files, communicating with truck maintenance provider, vehicle registration and license, and periodic fleet safety inspections." PSAMF ¶ 30; DRPSAMF ¶ 30; DSMF ¶ 6; PRDSMF ¶ 6.[9] The Position Description also specifically states that a Facility Supervisor "[m]ust meet the Federal [DOT] eligibility requirements, including appropriate driver's license and corresponding medical certification as a condition of employment for the position." DSMF ¶ 7; PRDSMF ¶ 7. Schwan's requires both its Facility Supervisors and its Material Handler IIIs to be DOT-certified. PSAMF ¶ 29 DRPSAMF ¶ 29.

The responsibilities of a Facility Supervisor, as stated in the Position Description, were in effect during Mr. Smith's employment in that position. DSMF ¶ 7; PRDSMF ¶ 7. Mr. Smith acknowledged that the Position Description was "fairly accurate" as to the job duties that he performed in that role. DSMF ¶ 8; PRDSMF ¶

8. During his deposition, Mr. Smith addressed the tasks listed in the Position Description:

Q: I want you to pull out Exhibit 10 and have a look at it. Exhibit 10 is the job description for facility supervisor?
A: Yes.
Q: And I just want to ask you a few questions about some of the duties and responsibilities on that sheet. If you look under that field, duties and responsibilities, about a third of the way down the page, you will see in that first paragraph it says: Executes the company's good warehouse practices. Do you know what Schwan's good warehouse practices are?
A: Not specifically. They - they didn't have that term when I was there or we possibly called it something else. We had the walk-throughs that we did and things like that, but the term doesn't ring a bell.
Q: Okay. So fair to say, as you sit here right now, you don't recall anything that was termed good warehouse practices?
MR. RUPE: Object.
A: Correct.
MR. RUPE: Leading.


Q: That's fine. Your answer?
A: Correct.
Q: Did you ever receive any training from Schwan's with respect to EPA regulations?
A: No.
Q: Did you ever receive any training from Schwan's with respect to OSHA regulations?
A: No.
Q: Did you ever receive any training from Schwan's with respect to food safety regulations?
A: I didn't receive any formal training, but we had the general knowledge of the temperatures and things like that of food safety. There was no formal - no training but it was just common knowledge.
Q: Okay. And with respect to the EPA and OSHA, prior to your employment at Schwan's had you ever received training in those areas before?
A: At Hannaford we had - they went over some OSHA things about bleach and ammonia. They had damage bins at each end of the warehouse, not to mix the two, and then obviously steel toes.
Q: What about the EPA?
A: No. We were just told at the depot that we couldn't wash the Schwan's trucks in the parking lot for the runoff. That was the only EPA instance we had there.


Q: Where were the OSHA logs kept?
A: I don't know. Probably in the office on the shelf somewhere.
Q: Did you ever tend to the OSHA logs, make any additions to them, write in your own handwriting in them?
A: I don't recall, no. We had the MSDS sheets and I had pest control logs that I filled out and temperature sheets, but I don't recall any OSHA logs.
Q: Those other things that you just listed, where were those items located?
A: In the office.
Q: And were you responsible for those?
A: Yes.
Q: And when you had your own office they were in your office, right?
A: Correct.
Q: What's HPPCA?
A: Has-ip (Phonetic).
Q: Did you keep any records on that?
A: I believe we had to fill out a sheet, everybody had to sign.
Q: Okay. And you were responsible for that?
A: Yes.

PSAMF ¶ 21; DRPSAMF ¶ 21.[10]

3. Michael Smith's Employment Duties and Responsibilities at Schwan's Home Service, Inc.

a. Employment History

Mr. Smith worked for Schwan's in Gorham, Maine from December 12, 2004 through February 19, 2011. PSAMF ¶ 32; DRPSAMF ¶ 32. He was originally hired as a "Material Handler I" and promoted to "Material Handler II" on January 25, 2006. Id. He was promoted again on January 7, 2007 to "Material Handler III." Id. In 2005, Mr. Smith's gross pay was $31, 603.69; in 2006, $36, 018.43; and in 2007, through June 9, 2007, $19, 682.59. PSAMF ¶ 33; DRPSAMF ¶ 33.

On June 1, 2007, Mr. Smith was offered the position of "Facility Supervisor I HS, " and he accepted this position on June 6, 2007. PSAMF ¶ 34; DRPSAMF ¶ 34.[11] Mr. Smith worked for Schwan's as a Facility Supervisor from June 10, 2007 to February 19, 2011. DSMF ¶ 1; PRDSMF ¶ 1. During his employment in this position, he was paid on a salary basis. DSMF ¶ 26; PRDSMF ¶ 26. From June 10, 2007 through March 2, 2008, Mr. Smith was paid a salary of $37, 500.00 per year. PSAMF ¶ 34; DRPSAMF ¶ 34. On March 2, 2008, he received a two percent raise to $38, 250.00 per year. Id. Mr. Smith did not receive another raise during his employment with Schwan's. Id.

b. Duties and Responsibilities as Facility Supervisor; Comparison to Material Handler Position

As a Facility Supervisor, Mr. Smith was responsible for supervising the depot Material Handlers, and coordinating the product receiving and material handling activities required to fulfill the sales activities at their assigned depot. DSMF ¶ 2; PRDSMF ¶ 2. In addition, Mr. Smith hired and trained the Material Handlers who reported to him. DSMF ¶ 9; PRDSMF ¶ 9. The only employees that Mr. Smith supervised were Material Handlers, and although technically he supervised the Material Handlers, Facility Supervisors and Material Handlers performed manual labor tasks. PSAMF ¶ 35; DRPSAMF ¶ 35.[12]

A Facility Supervisor's primary function was to perform the manual labor necessary to load Schwan's delivery trucks with product during the overnight shift and otherwise ensure that the trucks were fueled, serviced and loaded by morning so product could be delivered to Schwan's customers. PSAMF ¶ 6; DRPSAMF ¶ 6.[13] Robert Meier, one of Mr. Smith's supervisors, expected Mr. Smith first and foremost to work alongside his Material Handlers to make sure that all of the loads for Schwan's trucks were manually removed from the freezer and loaded onto the trucks in a timely manner, and to otherwise perform the manual labor necessary to ensure the trucks were properly inventoried, fueled and serviced. PSAMF ¶ 7; DRPSAMF ¶ 7.[14] Mr. Smith also had minimal administrative duties related to loading and ensuring the trucks were ready to travel in the morning, but it was much more important to Mr. Meier that the trucks be physically loaded on time during the overnight shift to ensure delivery to customers during the daytime. PSAMF ¶ 8; DRPSAMF ¶ 8.[15]

Generally, as Location General Manger (LGM), Mr. Meier expected Mr. Smith to spend at least 80 to 85 percent of his time (1) pulling product from the freezers; (2) loading the delivery trucks with the product pulled from the freezers; (3) cleaning the depot; (4) fueling the trucks and otherwise checking the trucks to make sure they were ready to go in the morning; and (5) performing other manual tasks around the Gorham depot. PSAMF ¶ 9; DRPSAMF ¶ 9. Mr. Smith estimates that he spent at least 80 percent of his time performing these non-administrative tasks. Id. [16]

During his deposition, Mr. Smith provided the following response regarding the duties of the Material Handler position:

Q: Give us a description, if you would, of the material handler job.
What was that job?
A: We pulled product, loaded trucks, cleaned the depot. Anything that needed to be done around the warehouse we did it.

PSAMF ¶ 10; DRPSAMF ¶ 10. He also described his typical shift as Facility Supervisor in response to questioning by Attorney Rupe:

Q: What I would like to understand is, walk me through a typical - and I understand your answer is that there were no typical days, but give me a sense of how the day worked when you were a facility supervisor.
A: I would usually get to the depot around 11 o'clock at night, and all the drivers would be back by then and they would have sent sales; go through and collect all their - they're called RTI's. They write out what route they are running, how many days they are going to be out, any extra product they are going to want on the truck. We'd run a load sheet, and generally one of us, after we run the load sheets, we would - one of us would start pulling, or we'd both start pulling on the freezer product, depending on how many trucks we had. One person would fuel the trucks because that took several hours when they were propane.
And then after all the loads were pulled, we were required to inventory the freezer; and then we'd start loading trucks after they had been fueled. Download all the handhelds; any cleaning that needed to be done. If the depot needed to be cleaned, we would clean.
Q: By the time you cleaned the depot, what time was it generally?
A: 6, 7 o'clock, 8 o'clock. Jack [Higley] required that I be there [by] 8 o'clock every morning for the meeting.
Q: For the pre-drive meeting with the drivers?
A: Yes.
Q: So you attended those meetings?
A: Yes.
Q: And then if you weren't unloading a semi or there wasn't some of these unusual situations you've described in this deposition, you would usually get out of there after the meeting?
A: Sometimes. Usually there is - drivers would want product. I'd have to do depot-to-truck transfer, put product on their truck. I would run some reports from time to time. Vendors would call. Usually the mornings were talk with vendors or do some work on the computer in the office.
Q: What would you do on the computer in the office?
A: I don't remember now.
Q: Was that a daily function that you would do?
A: Sometimes, yes.
Q: In terms of filing reports or -
A: File load sheets, file DOT slips, go around and clean up after the drivers a little bit, break down - we generate cardboard, so if we didn't have time to break it down throughout the night on the loading I would go do that because of our - they had an overtime policy, so they would send Bill home.
Q: So give me an idea after the meeting what time you would typically get out of there.
A: 9:30 or 10.

PSAMF ¶ 11; DRPSAMF ¶ 11.[17] In addition, Mr. Smith testified regarding the difference between the Material Handler and Facility Supervisor positions:

Q: All right. What was the difference between the Material Handler III job and the Material Handler II job you had held?
A: It was an increase in pay and a ...

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