United States District Court, D. Alaska
Russel Holland United States District Judge
for Summary Judgment
moves for summary judgment. This motion is opposed. Oral argument
was requested and has been heard.
is Ronald Lane. Plaintiff was born in 1942. In 2015-2017,
plaintiff lived in Virginia City, Montana.
is URS Midwest, Inc., a division of United Road Services,
Inc. (“URS”). “URS transports vehicles
across the State of Alaska, across portions of Canada, and in
the States of Oregon and Washington[.]” “URS
operates in interstate commerce under the authority of the
Federal Motor Carrier Safety Administration
(‘FMCSA'), which is an agency under the U.S.
Department of Transportation's (‘DOT')
began working for defendant as a long-haul truck driver in
April 2000. Plaintiff was originally based in Billings,
Montana, but for the last 8-10 years of his employment with
defendant, he was based in Federal Way, Washington.
“Plaintiff's primary job was transporting
customers' vehicles to and from a variety of locations .
. . via a car hauler tractor and trailer assigned to him by
URS[.]” Plaintiff's 18-wheeler weighed 42, 500
pounds when unloaded and more than 80, 000 pounds when
loaded. Plaintiff transported vehicles primarily
in Alaska, Washington, Oregon, Idaho, and Montana. But,
plaintiff avers that “[b]etween the period of February
28, 2014 through November 15, 2015, . . . my travel during
the trips w[as] exclusively within the State of
avers that his
job duties as a truck driver for defendant required me to do
a variety of tasks, in addition to driving. For instance, I
regularly hooked up trailers, fueled the truck assigned to
me, tied down loads for the truck assigned to me, engaged in
chaining and unchaining the wheels of the truck assigned to
me, performed pre- and post-trip and in-transit equipment and
load checks, attended to truck breakdowns, attended to truck
repairs while in-transit, performed light maintenance, [did]
offloading, completed required paperwork such as vehicle
inspection reports and hours logs as required by the
Department of Transportation, and wash[ed] the truck and
paid its drivers such as plaintiff “in accordance with
a commissions and bonus system.” Mike Martin,
defendant's vice president of operations, avers that
“the commissions amount fairly compensated . . .
drivers” for all their job duties, “including . .
.time spent (1) driving; (2) hooking up; (3) fueling; (4)
tying down; (5) chaining up and unchaining; (6) performing
pre-trip and in-transit equipment and load checks; (7) during
breakdowns; (8) making repairs; (9) loading and offloading;
and (10) completing required paperwork.”
January 1, 2015 and his last day of active duty on October
31, 2016, [p]laintiff was paid a commission of 27% of the
revenue generated per line haul trip.”Plaintiff
avers that “[b]etween February 28, 2014 through October
31, 2016, ” defendant's bonus program was called
“the Quality Fund Bonus Program” and that it was
“3% of the revenue generated per line haul
trip.” Plaintiff further avers that
“[p]ayment from the Quality Fund, however, was
restricted by the defendant, so that it could deduct from
this fund if any damage . . . occurred to the cargo
in-transit or to the vehicle used.”
“Plaintiff received $65, 012.17 in wage compensation
from URS in 2015 and $78, 540.68 in wage compensation in
2016. Plaintiff avers that defendant also paid
him “an hourly rate of $15.00 per hour for non-driving
work, and a flat fee of $100 for washing the URS Midwest Inc.
truck and trailer assigned to me.” Plaintiff
avers, however, that defendant “failed to pay me for
hours that I spent driving my vehicle . . . when I had no
cargo in the vehicle after a delivery, and I had to go to
another location for a pickup
October 31, 2016, plaintiff was working on his truck in the
URS garage in Anchorage when he noticed a pickup truck that
had a dead battery. Plaintiff jump-started the pickup and
then left it running in order to charge the battery. Around
midnight that evening, plaintiff went to sleep in his
truck's sleeper berth but forgot that the pickup was
still running. The next morning, plaintiff's supervisor,
Jim Carey, found plaintiff in his sleeper berth overcome by
carbon monoxide. Plaintiff was taken by ambulance to Alaska
Regional Hospital. While hospitalized, plaintiff suffered a
heart attack due to the lack of oxygen in his blood stream.
Plaintiff remained hospitalized for approximately one week.
the carbon monoxide incident, plaintiff was placed on
workers' compensation leave. After plaintiff's
workers' comp leave expired, he was granted Family
Medical Leave Act (FMLA) leave.
January 27, 2017, plaintiff's doctor issued a
“release to work” note, in which he stated that
plaintiff “is recovering well. He is able to drive a
commercial vehicle at this time, but he is still restricted
to lifting a maximum of 20 pounds and refraining from any
exertional activity.” On January 30, 2017, Carey
forwarded this release to Colleen Ward, who then forwarded it
to defendant's Human Resources department. In her email,
Ward stated that “Jim Carey would like to put him
[plaintiff] back to work right away.” Sometime
thereafter, Carey told plaintiff that he had to speak to
Martin about coming back to work.
February 9, 2017, plaintiff had a telephone conversation with
Martin about coming back to work. What exactly was said by
Martin during this conversation is in dispute and is
discussed in detail below.
avers that “[o]n February 10, 2017, . . . I went to the
Alaska Department of Wage and Hour to file a complaint for
unpaid overtime compensation.” Plaintiff further avers
that “[o]n February 28, 2017, I assigned my overtime
claim against URS to Alaska's Wage and Hour
FMLA leave expired on March 7, 2017. On March 31, 2017,
defendant reminded plaintiff that his FMLA leave had expired
and informed plaintiff that “[y]our status had been
converted to Inactive and your benefits ended effective March
March 1, 2017, plaintiff filed an age discrimination
complaint with the Alaska Equal Rights
Commission. Plaintiff avers that “[a]fter my
claim of discrimination had been investigated for more than
60 days, I opted to file my claim for age discrimination with
the Federal Courts[.]”
March and April 2017, plaintiff began applying for jobs in
Montana. In May 2017, plaintiff began working as truck driver
for A.M. Wells.
avers that “[o]n October 10, 2017, I received the
reassignment of my wage claim against URS Midwest, Inc., so I
could pursue this claim through a private
October 30, 2017, plaintiff commenced this action. In his
amended complaint, plaintiff asserts an Age Discrimination in
Employment Act (ADEA) claim and an overtime claim under the
Alaska Wage and Hour Act (AWHA).
now moves for summary judgment on both of plaintiff's
judgment is appropriate when there are no genuine issues of
material fact and the moving party is entitled to judgment as
a matter of law. Fed.R.Civ.P. 56(a). The initial burden is on
the moving party to show that there is an absence of genuine
issues of material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 325 (1986). If the moving party meets its
initial burden, then the non-moving party must set forth
specific facts showing that there is a genuine issue for
trial. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247-48 (1986). In deciding a motion for summary
judgment, the court views the evidence of the non-movant in
the light most favorable to that party, and all justifiable
inferences are also to be drawn in its favor. Id. at
255. “‘[T]he court's ultimate inquiry is to
determine whether the specific facts set forth by the
nonmoving party, coupled with undisputed background or
contextual facts, are such that a rational or reasonable jury
might return a verdict in its favor based on hat
evidence.'” Arandell Corp. v. Centerpoint
Energy Services, Inc., 900 F.3d 623, 628-29 (9th Cir.
2018) (quoting T.W. Elec. Service, Inc. v. Pacific Elec.
Contractors Ass'n, 809 F.2d 626, 631 (9th Cir.
first moves for summary judgment on plaintiff's ADEA
claim. “The ADEA makes it unlawful for an employer to
discriminate ‘because of [an] individual's
age.'” France v. Johnson, 795 F.3d 1170,
1172 (9th Cir. 2015) (quoting 29 U.S.C. § 623(a)(1)). An
employee must be “at least 40 years of age” to be
entitled to “[t]he protections of the ADEA. . .
.” Day v. AT & T Disability Income Plan,
698 F.3d 1091, 1099 (9th Cir. 2012). It is undisputed that
plaintiff is over 40 years of age.
initial matter, defendant suggests that plaintiff's ADEA
claim may be subject to dismissal because plaintiff did not
exhaust his administrative remedies. “An ADEA plaintiff
can satisfy the exhaustion requirement by filing a charge of
discrimination with the EEOC or the equivalent state agency
and waiting 60 days.” Marshall v. Silver State
Disposal Service, Inc., Case No. 2:15-cv-00953-APG-PAL,
2016 WL 1298102, at *2, n.25 (D. Nev. March 31, 2016) (citing
Sanchez v. Pac. Power Co., 147 F.3d 1097, 1099 (9th
Cir. 1998)). Plaintiff filed a claim with the Alaska Human
Rights Commission on March 1, 2017. His complaint was filed
in this court on October 30, 2017, more than six months
later. Plaintiff has exhausted his administrative remedies
under the ADEA.
then to the merits of plaintiff's ADEA claim, “[t]o
prevail on a claim for age discrimination under the ADEA, a
plaintiff must prove at trial that age was the
‘but-for' cause of the employer's adverse
action.” Shelley v. Geren, 666 F.3d 599, 607
(9th Cir. 2012). A plaintiff may oppose a motion for summary
judgment either by “present[ing] direct evidence of a
discriminatory motive” or under “the
burden-shifting framework set forth in McDonnell Douglas
Corp. v. Green[.]” France, 795 F.3d at
1173. Defendant first argues that plaintiff has not come
forward with any direct evidence of a discriminatory motive.
evidence, in the context of an ADEA claim, is defined as
evidence of conduct or statements by persons involved in the
decision-making process that may be viewed as directly
reflecting the alleged discriminatory attitude . . .
sufficient to permit the fact finder to infer that that
attitude was more likely than not a motivating factor in the
employer's decision.'” Id. (quoting
Enlow v. Salem-Keizer Yellow Cab Co., 389 F.3d 802,
812 (9th Cir. 2004)). “Direct evidence, which standing
alone can defeat summary judgment, must be evidence directly
tied to the adverse employment decision.” Id.
contends that he has direct evidence of age discrimination in
the form of Martin's statements during the February 9
phone call. In his first amended complaint, plaintiff alleged
that during the phone call, Martin first offered him a
severance package if he would quit and then told him that he
was “too old to drive” and that he was not going
to be allowed to drive anymore. Plaintiff was then asked
about this phone call at his deposition:
Q. What did Mike Martin say during that call?
A. He said he wouldn't put me back in another truck again
because I'd lost my skills.
Q. And what did you say in response to that?
A. I told him I didn't think so.
Q. And what did he say, if anything, in response to that?
A. Well, he said he couldn't do it, but he would be
willing to give me 25, 000 - I'm not sure if it was this
conversation or a later one, but he offered to give me $25,
000 if I would take my body and go someplace else.
Q. Anything else you recall about that five-minute phone
A. Well, I think in the $25, 000 deal, he was urging me to
retire because I was getting too old.
Q. Well, did he say to you, “I think you should retire
be- cause you're getting too old?”
A. I believe just about in those words.
Q. Okay. What exactly were his words?
A. Well, I don't remember his exact words, but that comes