Creese v. Bald Eagle Towing & Recovery

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

JACOB CREESE,

Plaintiff,

v. Case No: 2:19-cv-626-SPC-MRM

BALD EAGLE TOWING &

RECOVERY, DEWAYNE

GRUBER, JR., BUDDY HAGER

and DANIEL POPOFF,

Defendants.

/

OPINION AND ORDER1

Before the Court is Plaintiff Jacob Creese’s Motion for Summary

Judgment (Doc. 42). Defendants Bald Eagle Towing & Recovery, Dewayne

Gruber, Buddy Hager, and Daniel Popoff’s also filed for summary judgment

(Doc. 44). Creese moved to strike Gruber’s declaration too (Doc. 51). The

parties responded to the Motions and then some. (Docs. 52; 53; 59; 60; 61; 64).

BACKGROUND

This is a Fair Labor Standards Act (“FLSA”) case. Creese worked for

Bald Eagle as a heavy-duty tow truck driver. This generally entailed

1 Disclaimer: Documents hyperlinked to CM/ECF are subject to PACER fees. By using

hyperlinks, the Court does not endorse, recommend, approve, or guarantee any third parties

or the services or products they provide, nor does it have any agreements with them. The

Court is also not responsible for a hyperlink’s availability and functionality, and a failed

hyperlink does not affect this Order.

responding to calls for roadside services on large vehicles like semi or dump

trucks. Bald Eagle provided different services (e.g., tows, jumps start, and lock

outs).2 As Bald Eagle’s primary heavy-duty driver, any call for a heavy-duty

tow went to Creese first. Because towing work is somewhat unpredictable,

calls could come in whenever. Jobs varied in both frequency and time. Some

days had no tows, while others had five. And each tow could take anywhere

from thirty minutes to fourteen hours.

Apart from his tow calls, Creese had other duties. He communicated

with clients, estimated non-roadside jobs, trained coworkers, and worked

around Bald Eagle’s office (the “Shop”). What’s more, Creese worked as a

backup driver for tows on light-duty vehicles, such as cars and small pickup

trucks. In all, Creese estimates he worked about 132 hours each week (ninety-

two overtime hours). Gruber, Hager, and Popoff (together, the “Individuals”)

owned and operated Bald Eagle during the relevant period.

Creese filed a three-count Complaint—suing for FLSA overtime and

minimum wage violations, along with a state-law claim for failure to pay

vacation wages. (Doc. 26). Now, each party moves for summary judgment.

2 For ease of reference below, the Court refers to all Creese’s calls for service as tows.

LEGAL STANDARD

“The court shall grant summary judgment if the movant shows that

there is no genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” if it

“might affect the outcome of the suit under the governing law.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And a material fact is in genuine

dispute “if the evidence is such that a reasonable jury could return a verdict

for the nonmoving party.” Id.

The moving party bears the initial burden to show the lack of genuinely

disputed material fact. Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir.

2008). If carried, the burden shifts onto the nonmoving party to point out a

genuine dispute. Boyle v. City of Pell City, 866 F.3d 1280, 1288 (11th Cir.

2018). At this stage, courts view all facts and draw all reasonable inferences

in the light most favorable to the nonmoving party. Rojas v. Florida, 285 F.3d

1339, 1341-42 (11th Cir. 2002).

When (as here) the parties file cross summary judgment motions, these

principles are unchanged. Bricklayers, Masons & Plasterers Int’l Union of Am.

v. Stuart Plastering Co., 512 F.2d 1017, 1023 (5th Cir. 1975). The only

difference is that courts must take care to view the facts most favorably to the

nonmovant for each motion. Chavez v. Mercantil Commercebank, N.A., 701

F.3d 896, 899 (11th Cir. 2012).

DISCUSSION

To start, the Court addresses what the parties agree on: (1) there is

enterprise coverage; and (2) the Individuals are employers under the FLSA.

So the Court grants Creese’s Motion in part on those two issues. What’s more,

neither party addresses Creese’s claim for minimum wage violations (Count 2).

Thus, the Court does not tackle it below.

A. Motion to Strike

Before turning to the merits, the Court must decide whether it will strike

parts of Gruber’s declaration. It won’t. Creese challenges the declaration on a

host of grounds.

First, Creese challenges several statements as legal conclusions. The

statements Creese highlights are barely objectionable (if at all). Gruber says

the Department of Transportation (“DOT”) regulates Bald Eagle. As Creese

himself points out though, Bald Eagle is—by state law—subject to a host of

DOT regulations. Fla. Stat. § 316.302(b); see also 49 C.F.R. § 383.3 (requiring

intrastate drivers of some vehicles to have a CDL). What Creese is really

getting at is saying Gruber’s statements are not dispositive on the issue of an

FLSA exemption. The Court agrees. But that is a separate matter addressed

below. And if Gruber makes improper conclusions, the Court “is fully capable

of ignoring such legal conclusions in performing [a] review of the summary

judgment motions.” Edmondson v. Caliente Resorts, LLC, No. 8:15-cv-2672-T-

23TBM, 2017 WL 8948389, at *4 (M.D. Fla. Apr. 7, 2019).

Second, Creese attacks a handful of statements because Gruber lacks

personal knowledge. Many relate to his knowledge of Bald Eagle’s clients and

their relationships with the company. Creese’s arguments all fall flat.

To start, Gruber is the owner and president of Bald Eagle. And he has

been actively involved in the company’s operations for over twenty-five years.

In other words, if anyone has personal knowledge about Bald Eagle, its clients,

and their relationships, that person is Gruber. See United States v. Stein, 881

F.3d 853, 858 (11th Cir. 2018) (“Rule 56(c) states only that an affidavit must

be ‘made on personal knowledge, set out facts that would be admissible in

evidence, and show that the affiant or declarant is competent to testify on the

matters stated.’”). It seems Creese demands documented corroboration of

Gruber’s knowledge, but that isn’t required. Id.

Creese’s hearsay challenge to paragraph 7 is likewise unconvincing.

Gruber’s challenged statement does not seek to prove the truth of anything

written in a contract. Confusingly, even Creese concedes “Gruber may be in a

position to give first-hand testimony regarding the existence of Bald Eagle’s

contracts with motor clubs.” (Doc. 51 at 11). But that is what the declaration

says—Bald Eagle arranged or contracted with motor clubs to provide towing

services to commercial vehicles. Again, Gruber may testify on Bald Eagle’s

relationships with its clients if he has personal knowledge. Like above, Creese

is trying to litigate an exemption through a motion to strike. And as stated,

the Court will disregard any improper legal conclusions. Relatedly, Creese

challenges Gruber not attaching contracts with third-party motor clubs, it is a

nonstarter. Once more, Gruber’s declaration does not seek to prove the content

of a contract.

Finally, as to Creese’s contentions on statements related to data

provided in exhibits, there is no reason to strike. As much as Creese questions

Bald Eagle’s failure to attach the documents, the argument flounders. Bald

Eagle offered the exhibits—along with the declaration—attached to summary

judgment. What’s more, the declaration itself is clear to what records it refers

for anyone familiar with this case. And a later declaration removed any doubt.

Finally, the records speak for themselves. As Bald Eagle argues, they are

business records and Gruber appears qualified to lay their foundation. See

Meunier Carlin & Curfman, LLC v. Scidera, Inc., 234 F. Supp. 3d 1269, 1278

(N.D. Ga. 2018). So the Court will consider the paragraphs, which records

support.

The Court, therefore, denies Creese’s Motion to Strike.

B. Motor Carrier Act (“MCA”) Exemption

Turning to the merits, the Court first considers a potentially dispositive

issue: whether Creese is an exempt employee.

Employers subject to the FLSA must pay employees overtime. 29 U.S.C.

§ 207(a)(1). Yet the FLSA’s overtime provision “does not apply with respect to

all employees.” Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 147

(2012). “Under the MCA exemption, workers are exempt from the FLSA

overtime requirement if the United States Secretary of Transportation is

authorized to set their maximum hours.” Ehrlich v. Rich Prods. Corp., 767 F.

App’x 845, 847 (11th Cir. 2019); 29 U.S.C. § 213(b)(1). For years, courts

narrowly construed FLSA exemptions against employers. A.H. Phillips, Inc.

v. Walling, 324 U.S. 490, 493 (1945). That’s no longer the case. Encino

Motorcars, LLC v. Navarro, 138 S. Ct. 1134, 1142 (2018). Still, employers bear

the burden to establish an FLSA exemption. Klinedinst v. Swift Inv., Inc., 260

F.3d 1251, 1254 (11th Cir. 2001).

The MCA exemption presents a mixed question of law and fact. Williams

v. Cent. Transp. Int’l, Inc., 830 F.3d 773, 775 (8th Cir. 2016). “The question of

how [Creese] spent his time working for [Bald Eagle] is a question of fact; the

ultimate issue of whether his work activities exempted [Bald Eagle] from

paying FLSA overtime is one of law.” Id.

For some “motor carrier” employees, the DOT Secretary may set the

“maximum hours of service.” 49 U.S.C. § 31502(b). The Secretary’s

jurisdiction extends to “transportation by a motor carrier and the procurement

of that transportation, to the extent that passengers, property, or both, are

transported by motor carrier” between states. 49 U.S.C. § 13501(1). The MCA

“exemption applies only to those employees over whom the Secretary of

Transportation has this authority.” Walters v. Am. Coach Lines of Miami, Inc.,

575 F.3d 1221, 1227 (11th Cir. 2009)

The Secretary has authority over “employees who are employed (1) by a

common carrier by vehicle; (2) engaged in interstate commerce; and (3) whose

activities directly affect the safety of operations of such motor vehicles.” Abel

v. S. Shuttle Servs., Inc., 631 F.3d 1210, 1213 (11th Cir. 2011) (citation

omitted). So the Eleventh Circuit applies a two-part test:

First, [the] employer’s business must be subject to the

Secretary of Transportation’s jurisdiction under the

MCA. Second, the employee’s business-related

activities must directly affect the safety of operation of

motor vehicles in the transportation on the public

highways of passengers or property in interstate or

foreign commerce within the meaning of the [MCA].

Walters, 575 F.3d at 1227 (cleaned up). The Secretary “does not have to

exercise the authority granted . . . by the MCA for the motor carrier exemption

to be applicable.” Id. at 1226. Rather, the “power to regulate under the act

merely needs to cover a particular group of employees.” Id. The exemption,

thus, “depends both on the class to which [an] employer belongs and the class

of work involved in the employee’s job.” 29 C.F.R. § 782.2(a).

The parties seemingly agree Creese’s work directly affected the safe

operation of motor vehicles on public highways. Their disagreement boils down

to whether Bald Eagle and Creese’s tows within Florida constitutes interstate

commerce. That requirement can impact both prongs of the Walters test. Abel,

631 F.3d at 1215. Because there is a genuine dispute of material fact on the

interstate commerce question, summary judgment for both sides is misplaced.

Let’s start with what is undisputed. Bald Eagle only tows vehicles

within Florida. In fact, it registered with DOT for only intrastate tows.

Unsurprisingly then, all Creese’s work was within Florida (mostly in

Southwest Florida). This may suggest an open-and-shut conclusion Creese did

not engage in interstate commerce. But the law is more nuanced. “Even purely

intrastate transportation can constitute part of interstate commerce if ‘it is

part of a continuous stream of interstate travel,’ meaning there is ‘a practical

continuity of movement between the intrastate segment and the overall

interstate flow.’” Ehrlich, 767 F. App’x at 848 (quoting Walters, 575 F.3d at

1229). In other words, Creese’s activity may have been part of interstate

commerce despite him never crossing a state line.

When viewed most favorably to each nonmoving party, the record does

not establish either is entitled to judgment as a matter of law on the MCA

exemption.

Bald Eagle offers evidence showing about seven percent of Creese’s tows

were commercial vehicles registered in other states. In all, Creese towed

vehicles with out-of-state plates 467 times. Of those jobs, sixty-eight were

cargo trucks.3 According to Popoff, the vehicles of at least one regular

commercial client were in transit from Michigan. (Doc. 44-1 at 34-35). What’s

more, Bald Eagle arranged to provide towing services for nationwide motor

clubs that serve out-of-state commercial vehicles. From this evidence, a jury

could reasonably infer Creese’s work involved more than de minimis towing of

vehicles during their interstate trips. Stated another way, the jury could

decide Bald Eagle was part of a “continuous stream of interstate travel,”

ensuring people or goods continue their interstate journey despite unplanned

breakdowns during transport. See Walters, 575 F.3d at 1229 (citation omitted).

Creese claims evidence supporting these facts is not in the record, but he

is mistaken. Bald Eagle provides the data for all (or nearly all) Creese’s tows.

Together, an exhibit and spreadsheet include information showing vehicle type

(VIN, make, model, and year), its license plate, and association with a

corporate account. Put another way, Bald Eagle has data to support its

contentions. And the strategy to ignore or exclude that evidence falls short.

Likewise, the argument that Bald Eagle’s activity was unexpected or

unintended fails. No vehicle is immune from mishaps. Presumably for that

reason, motor clubs have relationships with Bald Eagle to provide towing

services for members travelling in Southwest Florida. If those vehicles are in

3 This data is from Gruber’s declaration (Doc. 44-5), which relies on data on the docket (Doc.

44-2) and provided to the Court in electronic copy.

interstate transit, Bald Eagle’s services become essential to ensure the

“practical continuity of movement between the intrastate segment and the

overall interstate flow.” Id. (cleaned up).

That said, Bald Eagle’s evidence does not—on its own—establish the

identified tows were vehicles traveling interstate. As Creese points out,

perhaps some (or even all) of those trips were commercial vehicles moving only

within Florida that simply happened to be registered in another state. Because

Bald Eagle never collected information on where vehicles were coming from or

going to, it cannot say with certainty what percent were engaged in interstate

commerce. Rather, it is a matter of inference. At a deposition, Creese

highlighted this by identifying the tow of a rental car, which may have only

been used locally. (Doc. 44-1 at 29-31). For those reasons, the Court agrees

with Creese it cannot grant Bald Eagle summary judgment on the MCA

exemption. See Swan v. Nick Grp., Inc., No. 1:11-cv-1713-WSD, 2013 WL

5200508, at *4-5 (N.D. Ga. Sept. 13, 2013). But at the same time, the Court

disagrees Bald Eagle did not present enough evidence to survive Creese’s effort

to get judgment on this matter. See Johnson v. Hix Wrecker Serv., Inc., 651

F.3d 658, 663-64 (7th Cir. 2011) (holding even though employer’s affidavit did

not establish entitlement to MCA exemption, it was enough to survive

summary judgment).

In short, there is a genuine issue of material fact over the MCA

exemption. Both parties want summary judgment in their favor. But a

reasonable jury could find for either. Viewing the evidence and taking

reasonable inferences in a light most favorable to each nonmoving party, the

Court denies both Motions on the issue. See 10A Charles Alan Wright &

Arthur R. Miller, Federal Practice and Procedure § 2725.2 (4th ed. 2021)

(“Therefore, if the evidence presented on the motion is subject to conflicting

interpretations, or reasonable people might differ as to its significance,

summary judgment is improper.” (footnotes omitted)).

C. Creese’s Motion on Liability

Considering that conclusion, the Court must deny Creese’s Motion to the

extent that it seeks partial judgment on FLSA violations. See Rich v. Sec’y Fla.

Dep’t of Corr., 716 F.3d 525, 530 (11th Cir. 2013). To be sure, it is not Creese’s

burden to disprove Bald Eagle’s defenses. Yet because there is a genuine

dispute on the MCA exemption, it would be impossible to rule Creese is entitled

to judgment when the jury still needs to decide if the FLSA applies to him at

all. 10B Charles Alan Wright & Arthur R. Miller, Federal Practice and

Procedure § 2734 (4th ed. 2021) (“Since a single valid defense may defeat

recovery, however, a claimant’s motion for summary judgment should be

denied when any defense presents significant fact issues that should be tried.”).

As this was the last matter addressed in Creese’s Motion, the Court resolves

Bald Eagle’s remaining arguments below.

D. On-Call Time

The FLSA demands employers pay nonexempt employees for “all hours

worked.” 29 C.F.R. § 778.223(a). And an employer cannot “suffer or permit”

an employee “to work” more than forty hours a workweek without paying time

and a half. 29 U.S.C. §§ 203(g), 207(a)(1). Bald Eagle seeks to clarify the scope

of hours for which Creese is entitled to pay. In other words, it wants a ruling

that the time Creese spent on call—but not working—is not compensable. The

Court agrees with one caveat. While Creese is entitled to pay for hours worked

while on call, he has no right to pay for hours spent waiting between calls

outside his regularly scheduled work time.

To start, it is necessary to dispel Creese’s notion that he was always

considered on duty, which means all hours were work time. Without a doubt,

a tow call could come at any time. But Creese provides no evidence that he

was actually on duty every hour for almost three years (as he argued at

summary judgment) or even nineteen hours a day (as he testified to and

estimated for his hours). Confusingly, Creese admitted to spending long

periods of time at home—not working—on weekends. Likewise, he does not

seek to recover time spent sleeping because he recognized it was not work time.

So it is clear Creese was not always on duty for FLSA purposes. Even if he

were, the inquiry to determine his hours would be like the one employed for

on-call time. See 29 C.F.R. § 785.15. So the Court turns to that analysis.

On-call employees may be entitled to pay for the time they spend waiting.

Armour & Co. v. Wantock, 323 U.S. 126, 134 (1944). Traditionally, the

distinction has been whether an employee “was engaged to wait” or “waited to

be engaged,” with only the former compensable. Skidmore v. Swift & Co., 323

U.S. 134, 136 (1944). Deciding whether an employee is working during on-call

time “depends on the degree to which the employee may use the time for

personal activities.” Birdwell v. City of Gadsden, Ala., 970 F.2d 802, 807 (11th

Cir. 1992). In other words, “whether ‘the time is spent predominantly for the

employer’s benefit or for the employee’s.’” Id. (quoting Armour, 323 U.S. at

133). To determine if time is compensable, courts scrutinize “the agreements

between the particular parties, appraisal of their practical construction of the

working agreement by conduct, consideration of the nature of the service, and

its relation to the waiting time, and all of the surrounding circumstances.”

Skidmore, 323 U.S. at 137.

If “a particular set of facts and circumstances is compensable under the

FLSA is a question of law for the Court to decide.” Llorca v. Sheriff, Collier

Cnty., Fla., 893 F.3d 1319, 1324 (11th Cir. 2018). So “it is for the court to

determine if a set of facts gives rise to liability; it is for the jury to determine if

those facts exist.” Dade Cnty., Fla. v. Alvarez, 124 F.3d 1380, 1383 (11th Cir.

1997) (cleaned up).

While not controlling, regulations interpreting the FLSA address “on-

call time”:

An employee who is required to remain on call on the

employer’s premises or so close thereto that he cannot

use the time effectively for his own purposes is

working while “on call.” An employee who is not

required to remain on the employer’s premises but is

merely required to leave word at his home or with

company officials where he may be reached is not

working while on call.

29 C.F.R. § 785.17. The regulations explain on-call time spent at home. Such

time “may or may not be compensable depending on whether the restrictions

placed on the employee preclude using the time for personal pursuits.” 29

C.F.R. § 553.221(d). “Where, for example, an employee . . . has returned home

after the shift, with the understanding that he or she is expected to return to

work in the event of an emergency in the night, such time spent at home is

normally not compensable.” Id. “On the other hand, where the conditions

placed on the employee’s activities are so restrictive that the employee cannot

use the time effectively for personal pursuits, such time spent on call is

compensable.” Id. At bottom, for on-call time to be work time, an employee’s

use of the “time must be severely restricted.” Birdwell, 970 F.2d at 810.

Here, the restrictions on Creese’s time were not so severe that he was

working 24/7 predominantly for Bald Eagle’s benefit. Here’s why.

From seven to five during business days, Creese had to be within the

general vicinity of the Shop or Naples proper.4 (Doc. 44-6 at 53-54). While the

area was never defined, it was clear Creese could neither leave Collier County

nor be near his home (about thirty to forty-five minutes from the Shop).

Outside those hours, Creese could be called out for tows at any time. Those

calls came to Creese’s cell phone—provided by Bald Eagle—which Creese had

to monitor constantly. Creese had to bring home his work truck, which he used

as a personal vehicle. Other than response times (addressed below), there was

seemingly no other restrictions on Creese’s time.

This arrangement is a far cry from one that would convert wait time to

work time. See, e.g., Birdwell, 970 F.2d 802 (holding detectives not working

even though they could not leave town, drink, or go anywhere with family in

one car); Bright v. Houston Nw. Med. Ctr. Survivor, Inc., 934 F.2d 671 (5th Cir.

1991) (holding time for employee always on call not compensable despite need

to be reachable by pager); Norton v. Worthen Van Serv., Inc., 839 F.2d 653 (10th

Cir. 1988) (holding driver not entitled to pay despite needing to stay near

premises for eight to ten hours per shift). Nor does Creese argue calls were so

4 There is a genuine dispute on this fact. But the Court must view the evidence most

favorably to Creese.

frequent he could not effectively use the time for his own benefit. Cf. Smith v.

Ideal Towing, LLC, No. 1:16-CV-1359-TWT, 2017 WL 5467154, at *4 (N.D. Ga.

Nov. 13, 2017) (holding tow truck drivers who could get fifteen calls each day

could not use time for own benefit).

None of this considers the evidence showing Creese could use on-call

time for his own benefit. For instance, he spent long periods of time on

weekends at home with his family as he normally would have. (Doc. 44-6 at

175). And he could do things like go to the grocery store with his fiancée if they

took separate cars (although he tended not to because call outs while shopping

were inconvenient). (Doc. 44-6 at 75-76). Creese’s work schedule may have

been undesirable. But that does not somehow entitle him to pay for hours he

did not work. Birdwell, 970 F.2d at 809-10 (noting a job can be “undesirable

and perhaps oppressive” without on-call time being compensable).

As noted, Creese’s response time needs a closer inspection. Creese tries

to piece together disparate pieces of evidence to create a genuine dispute on

whether Bald Eagle required him to “immediately” respond to calls or face

discipline. The biggest problem is Creese testified otherwise: “I had to make

sure that I was always available to go to a call within 30 to 45 minutes of when

that call came in.” (Doc. 44-6 at 187). None of the other evidence calls Creese’s

testimony into doubt or suggests Bald Eagle demanded any quicker response.

Creese’s argument seems to be that because Bald Eagle provides around-

the-clock emergency towing services, he had to respond immediately. But

nothing suggests that was a restriction Bald Eagle placed on him. While he

relies on an employee handbook, it does not demand any specific response time.

Rather, it warns against the consequences of a consistent “poor response

time.”5 (Doc. 42-2 at 9). And even though Creese points out an e-mail from

Bald Eagle chastising employees for averaging one-hour responses, this does

not alter Creese’s testimony. To be sure, there were certain calls that required

specific response times. For instance, law enforcement calls required a thirty-

minute response. But again, that tracks Creese’s statement. In sum, the

evidence on response times did not impose a severe restriction on Creese’s free

time. See Birdwell, 970 F.2d 802 (immediate response); Bright, 934 F.2d 671

(twenty-minute response); Norton, 839 F.2d 653 (twenty-minute response).

This Court recently considered—and rejected—a similar claim. Caiazza

v. Marceno, No. 2:18-cv-784-FtM-38MRM, 2020 WL 5892019, at *2-5 (M.D. Fla.

Oct. 5, 2020). Creese’s attempt to distinguish the case misfires. The difference,

says Creese, is that he needed to carry and check his phone. Yet that was the

same situation in Caiazza. 2020 WL 5892019, at *1, 4 (Plaintiff “received call

5 It is unclear how much of this document even applied to Creese. Certain provisions could

not apply to his unique arrangement (e.g., “Drivers with poor response time will go to the

bottom of the driver’s rotation.”). (Doc. 42-2 at 9).

outs on a cell phone. So [plaintiff] could leave his house to do other things in

the area if he carried his cell phone.”). That makes the cases similar, not

different. What’s more, Creese contends he had an immediate response time.

As explained, that’s just not true. And while Caiazza concerned a longer

response time, Creese still cannot show his time was severely restricted. So,

like Caiazza, this is a typical case in which an on-call employee allowed to go

home is not paid for time spent there. 29 C.F.R. § 553.221(d).

The Court grants summary judgment to Bald Eagle as to Creese’s theory

he is entitled to pay for time not spent working while on call. To be clear,

however, this ruling is limited to the time outside seven to five on weekdays.

Creese contends he was scheduled for those hours and required to be in his

truck at or near the Shop during that time. The parties genuinely dispute

whether that was a requirement or if Creese even had a schedule. All that

time (fifty hours per week) may or may not be compensable. See Norton, 839

F.2d at 655-56 (holding on-call drivers required to stay near employer’s office

not entitled to pay). Yet the parties did not sufficiently brief that issue.

Rather, they briefed on-call time generally without differentiating between

Creese’s scheduled and unscheduled hours. On this record, the Court cannot

address the distinction. So whether Creese was working and entitled to pay

from seven to five every weekday will proceed to trial.

E. Burden of Proof

With the scope of hours clarified, the inquiry turns to Bald Eagle’s theory

Creese did not meet the burden to proceed. This contention is a dud.

Ultimately, an employee bears the burden to prove she was improperly

paid for overtime. Lamonica v. Safe Hurricane Shutters, Inc., 711 F.3d 1299,

1315 (11th Cir. 2011). But the employer has the “duty to keep records of the

employee’s wages, hours, and other conditions and practices of employment.”

Allen v. Bd. of Pub. Educ. for Bibb Cnty., 495 F.3d 1306, 1315 (11th Cir. 2007).

So if the employer’s records are untrustworthy or nonexistent and the

employee lacks documentation, the employee’s burden is relaxed. Lamonica,

711 F.3d at 1315; Allen, 495 F.3d at 1316.

In such cases, an employee must prove uncompensated overtime and

provide “sufficient evidence to show the amount and extent of that work as a

matter of just and reasonable inference.” Lamonica, 711 F.3d at 1315 (quoting

Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687-88 (1946)). If she can

do so, the burden shifts onto “the employer to come forward with evidence of

the precise amount of work performed or with evidence to negative the

reasonableness of the inference to be drawn.” Id. (citation omitted).

The parties seemingly agree Bald Eagle’s system for documenting

service calls should reflect all (or nearly all) the tows Creese performed. Yet

they disagree whether those records reflect the full extent of time Creese spent

on tows. He testified the system was flawed when it came to recording time

because a dispatcher may need to enter information manually. So the

timestamps were misleading. What’s more, Bald Eagle’s system only recorded

hours for tows. The records, thus, do not reflect all the time Creese spent

estimating jobs, taking phone calls, responding to e-mails, training coworkers,

or performing other tasks. According to Creese and a coworker, these

unrecorded hours were plentiful. And while GPS records tracked the

movement of Creese’s work truck, those records also failed to capture work

time spent doing nontow work. In short, Creese’s burden is relaxed because

Bald Eagle’s records do not reflect all work time.

Much of Bald Eagle’s challenge revolves around Creese’s inability to

provide specifics on the exact number of overtime hours each workweek. Such

certainty is not required though. Allen, 495 F.3d at 1317-18 (“Thus, it is clear

that [defendant] was not entitled to summary judgment based on [p]laintiffs’

lack of documentation and inability to state with precision the number of

uncompensated hours they worked and the days on which that work was

performed.”). Rather, if sufficiently detailed, a plaintiff’s testimony on hours

“regularly worked” may “allow the jury to approximate the hours” plaintiff

“actually worked in each week.” Lamonica, 711 F.3d at 1315; see also Medrano

v. Inv. Emporium LLC, 672 F. App’x 944, 948-49 (11th Cir. 2016) (holding

plaintiff’s testimony—without “documentation or a specific recitation of his

hours worked”—was enough to withstand directed verdict). So the

unpublished Eleventh Circuit cases Bald Eagle cites purportedly to the

contrary are unconvincing. See Jackson v. ThinkDirect Marketing, Grp., Inc.,

No. 1:16-cv-03749, 2019 WL 8277236, at *3 (N.D. Ga. Dec. 9, 2019)

(distinguishing the line of cases Bald Eagle relies on because plaintiff alleged

the type and amount of work). And Creese simply needs to provide enough to

support a reasonable estimate of hours. E.g., Wagner v. Lee Cnty., 678 F. App’x

913, 926 (11th Cir. 2017). At this stage, he did so.

As mentioned above, there is still a dispute whether Creese worked fifty

scheduled hours every week. If the jury believes him, then Creese worked at

least ten hours of unpaid overtime a week. That does not include the time

Creese spent working after five or on weekends. Some of those hours are

documented in Bald Eagle’s records of Creese’s tows. In other words, Creese

carried his burden to show he worked overtime without pay and can reasonably

estimate at least some of those hours. At trial, Creese will need to establish a

reasonable estimate on the total overtime sought—which should change given

the on-call ruling above. But Bald Eagle’s challenge goes more to its own

burden (once shifted) to negate the reasonableness of Creese’s inference.

At bottom, granting summary judgment would require disregarding

Creese’s testimony (along with a coworker’s declaration) on the hours he

worked. Of course, that would be improper. To be sure, Bald Eagle lists a

litany of reasons to doubt Creese. It very well may be right, and can bring out

that evidence at trial. But summary judgment is not the time to weigh

evidence or determine credibility. That’s the jury’s job.

F. Vacation Pay

Finally, the parties dispute whether Creese has a right to vacation pay.

Count 3 alleges Bald Eagle owes those wages under Florida Statute § 448.08.

Bald Eagle disagrees. So does the Court.

The statute Creese relies on “does not create an action for unpaid wages.”

Hamann v. Little Italy’s Meatballs, LLC, No. 8:20-cv-2589-VMC-AEP, 2021 WL

1931257, at *4 (M.D. Fla. Mar. 31, 2021), report and recommendation adopted,

2021 WL 1541086 (Apr. 20, 2021). Instead, it permits prevailing party costs

and attorney’s fees in unpaid wage actions. Fla. Stat. § 448.08. Still, many

courts interpret this theory as a simple claim “for unpaid wages under Florida

common law.” Perez v. Mediglez Wellness Ctr., Inc., No. 8:12-cv-2751-T-33EAJ,

2013 WL 5566183, at *4 (M.D. Fla. Oct. 8, 2013) (cleaned up).

“Florida law broadly construes wages within the meaning of § 448.08 to

include all compensation paid by an employer for the performance of service by

an employee.” Short v. Bryn Alan Studios, Inc., No. 8:08-CV-145-T-30TGW,

2008 WL 2222319, at *3 (M.D. Fla. May 28, 2008) (collecting cases). So many

forms of earnings, such “as accrued vacation pay, are considered ‘wages’ for

purposes of” the statute. Id.

The parties apparently agree Creese is entitled to his 2019 vacation pay

(through their e-mail contract) if he reached the accrual date. They dispute

the date though. Creese argues the accrual date was every June, when he

signed the contract modifying his compensation package. Bald Eagle contends

that date falls in September, which is his new-hire anniversary date.

The contract says, “$2,600 would be added to your gross annual pay of

$67,600 if you did not take time off.” (Doc. 44-5 at 1). In other words, the

contract is ambiguous on the accrual date. Like Bald Eagle argues, the

circumstances and conduct make clear vacation pay accrued on Creese’s

anniversary date. See Hibiscus Assocs. Ltd. v. Bd. of Trs. of Policemen and

Firemen, 50 F.3d 908, 919 (11th Cir. 1995) (“However, when a contract term is

ambiguous, the best evidence of the parties’ intent is the construction the

parties themselves put on the agreement through their conduct.”).

Bald Eagle paid out Creese’s vacation bonus in November 2017. (Doc.

44-7 at 9). This was only five months after signing the contract. Creese makes

no effort to explain how his annual vacation bonus could have accrued and been

paid at that time unless the accrual date was in September. Rather, the parties

obviously intended their contract to modify the vacation pay provision set out

in the employee handbook. That clause awarded vacation pay after years of

“continued” or “completed” employment. (Doc. 42-2 at 4). Put another way,

the bonus accrued on the anniversary date.

What’s more, as Bald Eagle points out, accepting Creese’s argument

would ignore reality. Creese worked at Bald Eagle for less than three years.

During that time, he earned two annual vacation bonuses—in November 2017

and 2018. Unless Creese discovered a time warp, there is no chance he earned

three annual bonuses in just over two years (i.e., June 2017 to June 2019).

At bottom, the accrual date for Creese’s vacation pay was in September

2019. Because he did not reach that date, he is not entitled to those wages.

And summary judgment for Bald Eagle is proper on Count 3.

Accordingly, it is now

ORDERED:

(1) Plaintiff’s Motion for Summary Judgment (Doc. 42) is GRANTED in

part.

a. Defendant Bald Eagle is an “enterprise” as defined by the

FLSA.

b. Defendants Dewayne Gruber, Buddy Hager, and Daniel

Popoff are “employers” as defined by the FLSA.

c. The balance of the Motion is DENIED.

(2) Defendants’ Motion for Summary Judgment (Doc. 44) is GRANTED

in part.

a. As to Plaintiff’s theory of entitlement for on-call time, Counts

1 and 2 are—in part—DISMISSED with prejudice.

b. Count 3is DISMISSED with prejudice.

c. The balance of the Motion is DENIED.

(3) Plaintiffs Motion to Strike (Doc. 51) is DENIED.

DONE and ORDERED in Fort Myers, Florida on July 2, 2021.

, Lh platrathe 7

UNITED STATES DISTRICT JUDGE

Copies: All Parties of Record