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Lane v. URS Midwest INC.

United States District Court, D. Alaska

August 8, 2019

RONALD LANE, Plaintiff,
v.
URS MIDWEST, INC., Defendant.

          ORDER

          H. Russel Holland United States District Judge

         Motion for Summary Judgment

         Defendant moves for summary judgment.[1] This motion is opposed.[2] Oral argument was requested and has been heard.

         Facts

         Plaintiff is Ronald Lane. Plaintiff was born in 1942. In 2015-2017, plaintiff lived in Virginia City, Montana.

         Defendant 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[.]”[3] “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') jurisdiction.”[4]

         Plaintiff 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[.]”[5] Plaintiff's 18-wheeler weighed 42, 500 pounds when unloaded and more than 80, 000 pounds when loaded.[6] 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 Alaska.”[7]

         Plaintiff 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 trailer.[8]

         Defendant paid its drivers such as plaintiff “in accordance with a commissions and bonus system.”[9] 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.”[10]

         “Between 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.”[11]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.”[12] 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.”[13] “Plaintiff received $65, 012.17 in wage compensation from URS in 2015 and $78, 540.68 in wage compensation in 2016.[14] 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.”[15] 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 (‘Dead-heading[']).”[16]

         On 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.

         After 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.

         On 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.”[17] On January 30, 2017, Carey forwarded this release to Colleen Ward, who then forwarded it to defendant's Human Resources department.[18] In her email, Ward stated that “Jim Carey would like to put him [plaintiff] back to work right away.”[19] Sometime thereafter, Carey told plaintiff that he had to speak to Martin about coming back to work.

         On 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.

         Plaintiff 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.”[20] Plaintiff further avers that “[o]n February 28, 2017, I assigned my overtime claim against URS to Alaska's Wage and Hour Division.”[21]

         Plaintiff's 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 31, 2017.”[22]

         On March 1, 2017, plaintiff filed an age discrimination complaint with the Alaska Equal Rights Commission.[23] 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[.]”[24]

         In March and April 2017, plaintiff began applying for jobs in Montana. In May 2017, plaintiff began working as truck driver for A.M. Wells.[25]

         Plaintiff 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 attorney.”[26]

         On 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).

         Defendant now moves for summary judgment on both of plaintiff's claims.

         Discussion

         Summary 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. 1987)).

         Defendant 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.

         As an 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.

         Turning 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.

         “‘Direct 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.

         Plaintiff 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.[27] 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 conversation?
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 ...

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