The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Plaintiff, Greg Kuebel ("plaintiff" and/or "Kuebel"), a Retail Specialist and former employee of defendant Black & Decker (U.S.) Inc., ("Black & Decker" and/or "defendant") instituted this action alleging the defendant of the following: (1) Violation by Black & Decker of the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. §201 et seq. ("FLSA"); (2) Retaliation in violation of the FLSA; (3) Violation of the New York Labor Law, §190 et seq.;*fn1 and (4) Retaliation in violation of the New York Labor Law ("NY Labor Law"). Specifically, plaintiff claims that defendant failed to pay wages to which he was legally entitled because of time he spent commuting between his daily work location ("Commute Time") and time he worked "off the clock" but was not recorded on his time sheets ("off-the-clock" claims).
Plaintiff initially moved for conditional class certification for violation of the FLSA claiming that he was similarly situated to all other Retail Specialists of Black & Decker as it relates to defendant's failure to compensate for Commute Time. The parties thereafter stipulated to conditional certification solely as to the Commute Time pay issue. Notice was sent to potential plaintiffs and 130 opt-in plaintiffs filed consents to join the Commute Time claim. On December 3, 2008, defendant moved for partial summary judgment for dismissal of plaintiff's Commute Time claims, which was granted by this Court. Now pending are motions made by both plaintiff and defendant, which the court will set forth in the order in which they were filed.
Defendant filed a Motion For Notice to Opt-In Collective Action Plaintiffs informing them that the collective action claims brought by Kuebel have been decided in defendant's favor and have been dismissed. Plaintiff opposed this motion and filed a Motion seeking permission to send supplemental notice to all Retail Specialists and Sales and Marketing Specialists employed by Black & Decker to inform them of the "off-the-clock" claim by Kuebel, which defendant opposes. In addition, defendant filed a Motion for Summary Judgment under Federal Rules of Civil Procedure 56 dismissing all of plaintiff's remaining individual claims, which plaintiff opposes.
Defendant contends that plaintiff abandoned his retaliation claims under the FLSA and the NY Labor Law because plaintiff did not respond to defendant's arguments concerning these claims in his opposition to defendant's summary judgment motion. Courts generally consider claims waived or abandoned when not fully briefed on a summary judgment motion. See Barlow v. Connecticut, 319 F.Supp.2d 250, 266-67 (D.Conn.2004) (Courts may deem abandoned any claims not fully briefed in a motion for summary judgment). Whether to do so is within the discretion of the court. See Lipton v. County of Orange, 315 F.Supp.2d 434, 446 (S.D.N.Y.2004) ("This Court may, and generally will, deem a claim abandoned when a plaintiff fails to respond to a defendant's arguments that the claim should be dismissed.") In Taylor v. City of New York, 269 F.Supp.2d 68, 75 (E.D.N.Y.2003) the court stated that "[f]ederal courts may deem a claim abandoned when a party moves for summary judgment [on one ground] and the party opposing summary judgment fails to address the argument in any way." See also Fed.R.Civ.P. 56(e)(2). Here, defendant moved for summary judgment, but plaintiff did not address defendant's argument concerning dismissal of the retaliation claims in its response. Accordingly, the court finds that plaintiff abandoned both retaliation claims under the FLSA and the NY Labor Law and grants defendant's motion for summary judgment dismissing these claims.
For the reasons set forth below, I grant defendant's motion for summary judgment, and dismiss plaintiff's remaining individual claims since plaintiff cannot, as a matter of law, establish the necessary elements of proof in support of the alleged claims. The two remaining motions: defendant's Motion For Notice to Opt-In Collective Action Plaintiffs and plaintiff's Motion for Supplemental Notice to Putative Plaintiffs are denied as moot.
Defendant previously filed a motion for partial summary judgment requesting that the Court dismiss plaintiff's Commute Time claims. See Kuebel v. Black & Decker, 2009 WL 1401694 (W.D.N.Y. May 18, 2009) ("May 2009 Decision"). The Court granted defendant's motion for reasons set forth in its May 2009 Decision. The facts of this case were set forth in the Court's May 2009 Decision, familiarity with which is presumed and therefore are not repeated in their entirety here. Accordingly, only the facts relevant to the instant motions are discussed below.
A. Plaintiff's Remaining Individual Claims
On January 10, 2008, plaintiff filed a Collective Action Complaint, which along with an Amended Complaint alleged four causes of action namely: (1) violation of the FLSA; (2) retaliation in violation of the FLSA; (3) violation of the NY Labor Law; and (4) retaliation in violation of the NY Labor Law. See Docket #s 1 and 68. In his first and third claims, plaintiff alleges that defendant failed and has refused to pay him wages to which he was legally entitled for Commute Time and off-the-clock claims. See id. On December 3, 2008, Black & Decker moved for partial summary judgment seeking dismissal of plaintiff's Commute Time claims, which the Court granted in its entirety. In so doing, the Court held that defendant's Commute Time policy was lawful, tasks performed at home were neither "principal activities" nor "integral and indispensable" to Retail Specialists' jobs, and that defendant's conduct was not willful. See May 2009 Decision. Therefore, the only remaining claims in this lawsuit are plaintiff's off-the-clock claims.
B. Status of Certification of Collective and Class Action
A notice was sent on August 26, 2008 to all former and current Retail and Sales and Marketing Specialists who were employed by Black & Decker at any time between June 1, 2005 to the present permitting them to join plaintiff's FLSA action for Commute Time pay. This resulted in 130 individuals who opted-in to join plaintiff's Commute Time action. Defendant has moved to send these individuals a notice of dismissal of the Commute Time pay claim. Plaintiff, in turn has moved for supplemental notice to inform putative plaintiffs of the FLSA "offthe-clock" claim.
Black & Decker is a worldwide manufacturer of power tools which sells products under a number of brand names. In addition, defendant employs Retail Specialists who are responsible for product merchandising and marketing within Home Depot stores. Plaintiff was a Retail Specialist for Black & Decker from September 2006 to June 2007. In this position, he was directly supervised by a Market Manager, who oversees Retail Specialists within a territory called a "market."*fn2 Plaintiff was also employed by three other companies during the same time he was working for Black & Decker. He did field merchandising in Best Buy stores for 4-12 hours per week for a company called Mosaic, 1-4 hours per week for a company called Campaigners and occasional merchandising as an independent contractor for the Pat Henry Company. In addition, plaintiff had childcare obligations while employed by defendant, including taking his children to gymnastics class during the workweek. Defendant claims that plaintiff was terminated less than a year into his employment with Black & Decker for poor performance and falsification of company records. Plaintiff argues his termination was in retaliation for his complaints over failure to pay overtime compensation and because he had limited himself to working only 40 hours per week.
B. Plaintiff's work-related Duties and Responsibilities
The plaintiff's principal job duties as a Retail Specialist, was to ensure that Black & Decker products were properly stocked, priced and displayed within the space that he or Black & Decker negotiated in each of his six assigned Home Depot stores. Moreover, plaintiff provided product knowledge training sessions to store personnel and engaged in in-store sales conversations with Home Depot customers that were interested in Black & Decker's products. See id., 10. Importantly, the essential functions of plaintiff's job were to ensure that his six Home Depot stores were "fundamentally sound." This meant plaintiff had to make sure that: (1) the Black & Decker products in the store were priced correctly; (2) the product fact tags were accurate and properly displayed; (3) the Black & Decker products were adequately stocked; and (4) the Black & Decker products were clean, on the shelves and on display, and (5) the Black & Decker tool display was set in the pod correctly. Plaintiff contends that the essential functions of plaintiff's job also included office time or administrative duties consisting of: reviewing and responding to company e-mails, reviewing directives from managers, printing and reviewing sales reports, training on the Black & Decker website via E-learning courses,*fn3 assembling point-of-purchase ("POP") materials and synchronizing the company-provided Personal Digital Assistant ("PDA").*fn4
Defendant contends that the time it takes Retail Specialists to perform their administrative tasks may vary depending on their individual responsibilities. However, Black & Decker expected retail Specialists to generally allot 2.5 hours per week for their administrative tasks. Plaintiff argues that administrative responsibilities required more than 2.5 hours a week to be completed.
C. Plaintiff's Time Management
Black & Decker contends that except in temporary or irregular circumstances involving understaffing or special events, the Retail Specialists' work can be accomplished in a 40 hour workweek, which plaintiff disputes. Market Managers expect Retail Specialists to manage themselves and budget their time to perform their responsibilities within a 40-hour workweek. Plaintiff argues that this policy resulted in Retail Specialists not recording hours over 40 in order to get all their work done within that time constraint. Defendant explains that if a Retail Specialist did not have enough time allotted to complete every task at a particular store, he should accomplish what is most important at the store and make a note to accomplish the remaining activities at his next store visit.*fn5
If a Retail Specialist has trouble budgeting his time for a 40-hour workweek, his Market Manager would generally train and counsel him on time management. If the problem is a lack of computer skills or tools that prevent him from completing his administrative tasks efficiently, defendant could provide computer training or make alternative arrangements. Plaintiff claims that Market Managers insist that the Retail Specialist must complete his work without recording more than 40 hours. Plaintiff's former Market Manager, Davolt, frequently did "work withs" with plaintiff at several of plaintiff's assigned stores. See Plaintiff Dep., 90:21-91:10; Davolt Decl., ¶9. When Davolt met with plaintiff at the store, he specifically discussed how to calculate how much in-store time plaintiff could spend there, based on an eight-hour day, and taking into account his compensable Commute Time and administrative tasks.
D. Defendant's Time Reporting Policies
It is defendant's policy to compensate Retail Specialists for (a) all time spent working at Home Depot stores; (b) all time spent working at home; and (c) all travel time between stores during the workday, and all Commute Time in the morning or evening in excess of 60 miles. In addition, defendant requires Retail Specialists to accurately self-report their total hours worked on their handwritten time sheets. Further, defendant claims that it paid for all hours worked in addition to overtime hours which are paid at the appropriate overtime premium. Plaintiff contends that Market Managers remind the Retail Specialist that he must complete his work without recording more than 40 hours.
Retail Specialists are trained in their new hire orientation regarding accurately recording all hours worked on their time sheets, including overtime. As the direct supervisors of field employees, Market Managers are responsible for training, coaching and re-training Retail Specialists about Black & Decker's policy requiring accurate record keeping and to pay for all hours worked. The Human Resources department trains and re-trains the Market Managers, Regional Managers and Divisional Managers concerning these company policies twice each year. Black & Decker maintains a Code of Ethics that requires all employees to maintain the integrity of company records, explains the company's commitment to obeying all laws expressly, including all wage and hour laws, and requiring employees to report what they believe to be violations of the Code of Ethics. The Code outlines a strict no- retaliation policy that protects employees from good faith complaints under the Code.
As part of the effort to reinforce the Code of Ethics with all employees, Black & Decker mailed a copy of a brochure entitled "Doing What's Right" to all employees on April 10, 2006, which summarized the critical aspects of the Code of Ethics. Over the following several months, Black & Decker followed up with a series of e-mails to all current employees, including all Retail Specialists, entitled "Live the Code," which focused on one of the topics addressed in the Code of Ethics. The e-mail sent to all employees on January 16, 2007 regarding "Live the Code -- Accurate Business Records" provided that all employees were required to "ensure that business records (for example time cards, travel and expense reports, invoices, and purchase orders) are honest, complete and not misleading." It directed employees to "watch out for falsifying records or documents" and to beware of [a]ssisting anyone with or going along with the creation of inaccurate or misleading records." Employees were told, "If you are asked or aware of efforts to alter, destroy, conceal, falsify or not create business records, report this to your supervisor immediately. If you still have questions or concerns, e-mail email@example.com." In addition, employees were given a phone number by which they could make anonymous reports of violations. No complaint was ever made by plaintiff utilizing this process, nor was any anonymous complaint made regarding plaintiff's supervisors.
1. Plaintiff's Beacon Hours
Black & Decker provided plaintiff with a hand-held PDA that he used to record his entry and exit times at each Home Depot store and to signal completion of the "task lists." Black & Decker refers to the amount of in-store time recorded by the PDA as "Beacon" hours. Black & Decker frequently received "Beacon" reports reflecting plaintiff's Beacon hours. The Regional and Market Managers take into consideration a number of factors about each store in the territory, including store volume (i.e. how busy the store is) and the store's location relative to other stores in the territory (i.e. geographical distance and travel time), when they develop expectations for the amount of in-store time expected of each Retail Specialist for each store.
The Beacon reports were one tool among several for Market Managers to evaluate Retail Specialists' performance, but they were not the most important tool. This is so because the Beacon reports were subject to inaccuracies and even employee fraud. For example, Retail Specialists were not expected to "Beacon" out of a store for breaks or meal breaks, although, they were encouraged to take both. Beacon reports would typically over state in-store hours by 2.5 to 5 hours per week due to meal periods. Moreover, if a Retail Specialist forgot to Beacon in or out of a Home Depot store, or if either the PDA or the Beacon sensors at the store were not working properly, then he could "manual" in or out from anywhere.*fn6 On certain days, some Retail Specialists failed to either Beacon in/out or even to "manual" in/out, because of technical error, or they forgot, or because they never visited the store that day at all. Plaintiff himself had some days in which he had no Beacon hours, yet identified a full day's work on his timecard for which he was paid.
Also, a Retail Specialist could Beacon in to a store in person and then leave the store to conduct personal errands, or (as defendant has at times suspected of plaintiff) go to work for another company, while supposedly working for Black and Decker at a Home Depot store. For this reason Market Managers consistently visited the Home Depot stores to observe for themselves the status of the Black & Decker displays and products. Should a Market Manager discover that the stores had old, discontinued products, dusty products, old displays or fact tags, or lacks new displays, product information or specials, the Market Manager strongly suspected that the Retail Specialist has not actually worked in the store for the minimal amount of time required to make it "fundamentally sound." In addition, the Market Managers verify with the Home Depot store managers and department heads whether the Retails Specialists are performing and if the Home Depot Managers are satisfied with their work. On some occasions, Home Depot store managers expressed dissatisfaction with a Retail Specialist's performance, commenting that they have not seen the representative in ages. Tucker Decl., ¶18.
2. Black & Decker's Policy Regarding Overtime
There is no Company policy prohibiting Retail Specialists from working, recording, and receiving compensation for overtime. While employees are expected to get prior approval before working overtime, they are paid for all hours worked, regardless. Plaintiff claims that Black & Decker's "manage to 40 hours" policy results in Retail Specialists not being paid overtime i.e. employees are not paid for all hours worked. Black & Decker, however, has historically paid overtime to Retail Specialists (including plaintiff) in every year that the position has existed. Black & Decker's National Merchandising Manager testified at his deposition that there is no corporate prohibition on overtime, nor any directive to limit overtime worked by Retail Specialists. Market Managers are not directed to monitor the amount of overtime hours worked, or overtime dollars spent. According to plaintiff's supervisor, Davolt, he never felt any pressure from Black & Decker to minimize overtime. In addition, he testified that he was never disciplined or counseled because any of his Retail Specialists recorded overtime. Moreover, he never disciplined a Retail Specialist for recording overtime.
E. Plaintiff's Performance Issues and Termination
During his nine months of employment as a Retail Specialist, plaintiff was consistently coached and trained by his supervisors due to his performance problems. Plaintiff frequently reported fewer than 28 in-store Beacon hours, had a number of "manual" Beacon entries, and on some occasions, had a full day of work identified on his time card, but no Beacon time for that day. Davolt counseled plaintiff about his in-store hours, and frequently did "work withs" with him in order to coach and counsel his performance. In addition, Davolt occasionally visited plaintiff's stores in order to evaluate whether the store was "fundamentally sound." According to Davolt, during the "work withs" that plaintiff had with him, plaintiff lacked focus and familiarity with his stores, which left him with the impression that plaintiff had not been in his assigned stores in some time.*fn7 Despite the warnings and reminders, plaintiff continued to fail to meet Davolt's expectations about performing even the most fundamental activities that were pointed out to him during the "work withs." Accordingly, Davolt issued several written disciplinary warnings and had many counseling sessions with plaintiff to discuss his job deficiencies.
Moreover, Davolt learned that plaintiff had lied to him and falsified his time records in violation of Black & Decker's policy. One morning in February 2007 on the way to a Home Depot store, plaintiff had a traffic accident. Plaintiff notified Davolt of the accident and told Davolt that he would spend time that day taking an online training course. After reviewing plaintiff's time sheet for that week, Davolt noticed that plaintiff had recorded four hours of work on the day of the accident, despite the fact that Black & Decker's computer records showed that plaintiff had not taken an online course.*fn8 Thereafter, Davolt asked plaintiff whether he had recorded on his time sheet and in his weekly status report that he had taken the course and plaintiff responded that he had. Davolt then confronted plaintiff by asking him exactly which course he had taken, and plaintiff was unable to provide him with a straight answer. Plaintiff admitted falsifying his time records and was not completely truthful with Davolt about his online training. Plaintiff testified as follows:
Q: Did you actually do the online training when you went home?
Q. Did you tell [Davolt] after that day that you did, in fact, do the online training?
See Plaintiff Dep., 116:10-15
Q: All right. So he asked you if you took the course and you say no, and what did...Davolt say in response?
A. He said you recorded on your weekly time or your weekly summary that you did take the ...