United States District Court, D. Utah, Central Division
MEMORANDUM DECISION AND ORDER GRANTING
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (ECF NO. 13) AND
DENYING PLAINTIFF'S CROSS MOTION FOR SUMMARY JUDGMENT
(ECF NO. 18)
J. Furse, United States Magistrate Judge.
Inc., EME Mechanical, EME Service, and John Bodnar
(collectively, “the EME Defendants”), move the
Court for summary judgment. (Defs.' Mot. for
Summ. J. & Mem. in Supp. (Defs.' Mot.), ECF No. 13.)
The EME Defendants contend they do not owe Mr. Butler
overtime because he functions as an outside salesman exempt
from the Fair Labor Standards Act's (“FLSA”)
overtime requirements. The EME Defendants further contend
that Mr. Butler's contract and unjust enrichment claims
fail because there was no meeting of the minds regarding
paying Mr. Butler a fifty percent commission on net
construction sales or on a final payment, and they did not
receive unjust enrichment because they paid Mr. Butler a
salary for his work.
Plaintiff, Vandy Butler, cross moves for summary judgment.
(Pl.'s Mot. for Summ. J. with Supporting Mem. & Decl.
(Pl.'s Mot.), ECF No. 18.) Mr. Butler argues he functions
as an inside salesman, and alternatively, the EME Defendants
have not met their burden of proving he acted as an exempt
outside salesman. Mr. Butler further argues the EME
Defendants breached his contract and received unjust
enrichment when they did not pay overtime pay for the weeks
when he worked in excess of forty hours. Having carefully
considered the parties' memoranda and the law, applying
the appropriate burden of production to each motion, for the
reasons stated below, the Court DENIES Mr. Butler's Cross
Motion for Summary Judgment and GRANTS the EME
Defendants' Motion for Summary Judgment.
STANDARD OF REVIEW
grant summary judgment when the record demonstrates “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). Only facts “essential to the proper disposition
of a claim” qualify as material. Crowe v. ADT Sec.
Servs., Inc., 649 F.3d 1189, 1194 (10th Cir. 2011).
“[W]here the non moving party will bear the burden of
proof at trial on a dispositive issue” that party must
“go beyond the pleadings” and “designate
specific facts” so as to “make a showing
sufficient to establish the existence of an element essential
to that party's case” in order to survive summary
McKnight v. Kimberly Clark Corp., 149 F.3d 1125,
1128 (10th Cir. 1998) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986)). A party asserting or
disputing a fact “must support the assertion by…
citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials.”
Fed.R.Civ.P. 56(c)(1)(A). When applying the summary judgment
standard, the court must “view the evidence and draw
reasonable inferences therefrom in the light most favorable
to the nonmoving party.” Ribeau v. Katt, 681
F.3d 1190, 1194 (10th Cir. 2012) (quoting Doe v. City of
Albuquerque, 667 F.3d 1111, 1122 (10th Cir. 2012)).
Where the Court is “presented with cross-motions for
summary judgement, ” as in this case, the Court
“must view each motion separately, in the light most
favorable to the non-moving party, and draw all reasonable
inferences in that party's favor.” United
States v. Sup. Ct. of N.M., 839 F.3d 888, 906-07 (10th
Cir. 2016) (Manganella v. Evanston Ins. Co., 702
F.3d 68, 72 (1st Cir. 2012)). “Cross motions for
summary judgment are to be treated separately; the denial of
one does not require the grant of another.”
Id. (quoting Buell Cabinet Co. v. Sudduth,
608 F.2d 431, 433 (10th Cir. 1979)). When faced with cross
summary judgment motions, the court may “assume that no
evidence needs to be considered other than that filed by the
parties.” James Barlow Family Ltd. P'ship v.
David Munson, Inc., 132 F.3d 1316, 1319 (10th Cir.
MR. BUTLER'S MOTION FOR SUMMARY JUDGMENT
Butler's Motion for Summary Judgment fails because it
reads as an opposition to the EME Defendants' Motion for
Summary Judgment with the occasional request for summary
Butler moves for summary judgment on the EME Defendants'
affirmative defense of professional/administrative exemption
to Mr. Butler's FLSA claim. (Pl.'s Mot. 10-12, ECF
No. 18.) Because the professional/administrative exemption is
an affirmative defense, the EME Defendants bear the burden of
proof. See Archuleta v. Wal-Mart Stores, Inc., 543
F.3d 1226, 1233 (10th Cir. 2008) ("While it is the
employee's burden to prove that the employer is violating
the FLSA ... it is the defendant employer's burden to
prove that the employee is exempt from FLSA coverage.")
(citations omitted). Mr. Butler claims an exception to that
exemption, namely the constant shifting of Mr. Butler's
pay between hourly and salary makes the professional
exemption a scam. (Id. at 11.) The EME Defendants do
not assert the professional/ administrative exemption. (Def.
EME, Inc.'s Opp'n to Pl.'s Mot. for Summ. J.
(Defs.' Opp'n) 8, ECF No. 19.) The Court need not
grant summary judgment on an affirmative defense not
Butler also contends the EME Defendants changed his work
duties from salesman to include bookkeeping and payroll,
preventing him from qualifying as an outside salesman.
(Pl.'s Mot. 12, ECF No. 18.) Whether Mr. Butler's
position constitutes an outside sales position turns on
whether his primary duty is outside sales. 29 C.F.R. §
541.700. Courts consider all of the facts surrounding how the
plaintiff performed the job and the employer's treatment
of the job. Id. To prevail at trial, the EME
Defendants would have to prove by a preponderance of the
evidence that Mr. Butler worked as an outside sales person.
See Lederman v. Frontier Fire Protection, Inc., 685
F.3d 1151, 1158-59 (10th Cir. 2012) (explaining the burden of
proof in claiming an exemption to the FLSA). Taking the
evidence in the light most favorable to the EME Defendants,
they cite to evidence from which a reasonable jury and the
Court could conclude Mr. Butler qualified for the outside
sales exemption. (Defs.' Opp'n 8-10, ECF No. 19.)
Therefore, despite Mr. Butler's contention that the EME
Defendants lack sufficient evidence to show his primary duty
fell into the outside sales person exception, the Court
DENIES Mr. Butler Summary Judgment Motion on this point
because the EME Defendants have put forth sufficient
Butler also moves for summary judgment on his FLSA claim.
(Pl.'s Mot. 12-16, ECF No. 18.) Where the party bearing
the burden of proof at trial moves for summary judgment, he
must put forth evidence to support each element of his claim,
not just counter arguments made by opposing counsel. See
Pelt v. Utah, 539 F.3d 1271, 1280 (10th Cir. 2008)
(stating "... if the moving party bears the burden of
proof, to obtain summary judgment, ... the moving party must
establish, as a matter of law, all essential elements of the
issue before the nonmoving party can be obligated to bring
forward any specific facts alleged to rebut the movant's
case."). Mr. Butler's own contention that genuine
disputes of material fact exist which preclude summary
judgment demonstrates that Mr. Butler does not meet his
burden. Indeed, Mr. Butler states “[b]ecause of the
constant changing of [Mr.] Butler's employment duties and
the arbitrary manner in which EME computed his pay, there are
many disputed issues of fact relevant to whether [Mr.] Butler
was an exempt or nonexempt employee.”
(Defs.' Opp'n 6, ECF No. 19.) On this basis, the
Court DENIES Mr. Butler's Motion for Summary Judgment on
his FLSA claim.
Butler further moves the Court for summary judgment on his
contract claim. (Pl.'s Mot. 16-18, ECF No. 18.) Mr.
Butler cites no contract law in support of his motion.
(Id.) The only law Mr. Butler cites in support of
his motion is the FLSA. The FLSA does not set forth Utah
contract law. Because Mr. Butler fails to support his motion
with any legal citation necessary to prove his claim, the
Court DENIES his motion for summary judgment on his contract
Butler moves for summary judgment on his unjust enrichment
claim. (Pl.'s Mot. 18, ECF No. 18.) He cites no law and
no facts in support of this portion of his motion.
(Id.) The Court will not research the law and scour
the record to save Mr. Butler the effort of doing so.
Therefore, the Court DENIES Mr. Butler's Motion for
Summary Judgment on his unjust enrichment claim.
the Court denies Mr. Butler's Motion for Summary
Judgment, the Court considers only the material facts needed
to determine the EME Defendants' Motion for Summary
Judgment for the remainder of this opinion. All facts come
from the parties' briefings and accompanying exhibits.
The Court resolves all disputed issues of material fact in
favor of Mr. Butler. See Ribeau v. Katt, 681 F.3d
1190, 1194 (10th Cir. 2012) (setting forth summary judgment
The Employment Contract
Butler worked for the EME Defendants from the fall of 2014
until spring of 2016. (Butler Decl. 4, 14, ECF No. 16-2.)
Before working for the EME Defendants, Mr. Butler approached
the EME Defendants, in April 2014, about working with them.
(Butler Dep. 12:05-17, Ex. F, ECF No. 16-1.) The EME
Defendants presented Mr. Butler with an informal offer where
Mr. Butler stood to “receive a salary of $60, 000. per
year payable bi-weekly plus sales commission of 1-1/2% on
your sales revenue to be paid after we start work on each
project.” (April 1, 2014 Offer Letter, Ex. A, ECF No.
16-1.) Mr. Butler ultimately decided to work for another
company called Vision Air because “Vision Air was a
two-man shop that wanted to grow, and that's what I do is
build sales.” (Butler Dep. 12:18-25, Ex. F, ECF No.
on October 10, 2014, while Mr. Butler still worked for Vision
Air, the EME Defendants presented Mr. Butler with another
offer to work for the EME Defendants with an anticipated
start date of November 1, 2014. (Oct. 10, 2014 Offer Letter,
ECF No. 17-1.) The offer letter purports to be “an
informal offer of employment, ” which conditioned
employment on “receiving satisfactory reference,
background check and drug test results.” (Id.
at 2.) Under this “possible offer, ” Mr. Butler
stood to receive a salary of $65, 000 per year, “[p]lus
50% sales commission of the realized net profit on your
construction sales revenue to be paid after we are paid on
each project. (No commission paid on the first $500, 000. of
construction sales).” (Id.) Further, the
company would give Mr. Butler “10% of the paid service
sales of each customer during their first year with [the
company], beginning with your first service sale. (No
commission on existing service customers).”
(Id.) The offer letter continues “[a]s an
outside sales person, reasonable personal vehicle fuel costs
may be reimbursed. As the service consultant, a company owned
mobile phone will also be provided for company work.”
(Id.) The offer letter states in the note section:
“This employment offer is for no definite time period.
Employment or this offer may, regardless of date of payment
of wages, be terminated or withdrawn at any time without
previous notice. Any employment is deemed to be at will of
both employee and employer.” (Id. at 3.)
October 13, 2014, Mr. Butler gave his two weeks notice with
Vision Air and agreed to work for the EME Defendants. (Butler
Decl. 3, ECF No. 16-2.) Mr. Butler believed the EME
Defendants hired him because of his sales experience and
customer relationships. (Butler Dep.at 14:25-15:2, 19:12-18,
Ex. F, ECF No. 16-1.)
days before Mr. Butler's start date, the EME Defendants
told Mr. Butler that they would reduce his salary to $48, 000
until Mr. Butler could acquire a contract with Kier
Construction. (Id. 38:01-09, Ex. F, ECF No. 16-1.)
On November 3, 2014, the EME Defendants issued Mr. Butler a
formal employment offer (Nov. 3, 2014 Employment Offer, Ex.
E, ECF No. 13-5), which Mr. Butler accepted (Butler Dep.
38:01-24, Ex. F, ECF No. 16-1).
the terms of the November offer, the EME Defendants hired Mr.
Butler as a “Commercial Salesman” and provided
Mr. Butler a salary of $48, 000 a year “[p]lus a sales
commission based on the realized net profit actually earned,
to be paid after we are paid for the finished project. (No
commission on the first $250, 000 of construction
sales).” (Nov. 3, 2014 Offer Letter, Ex. E, ECF No.
13-5; Pl.'s Opp'n to Defs.' Mot. for Summ. J.
& Supp. Mem. (“Pl.'s Opp'n”)
Responses to Defs.' Statement of Undisputed Facts
(“Response”), ¶ 5, ECF No. 16.) The letter
does not specify the amount of the commission. The EME
Defendants also agreed to give Mr. Butler ten percent
“of the paid service sales of each new
customer [Mr. Butler] acquire[d] during [the customer's]
first year with [the EME Defendants], beginning with [Mr.
Butler's] first service sale. (No commission on existing
service customers).” (Nov. 3, 2014 Offer Letter, Ex. E,
ECF No. 13-5.)
Defendants agreed to raise Mr. Butler's salary to $65,
000 per year once Mr. Butler acquired a contract from Kier
Construction. (Butler Dep. 38:01-41:04, Ex. F, ECF No. 16-1.)
In December 2014, the EME Defendants increased Mr.
Butler's salary to $65, 000 per year. (Butler Dep.
39:21-41:03, Ex. F, ECF No. 16-1; c.f. Dec. 25,
2014-Jan. 7, 2015 Pay Stub, doc # EME00082, ECF No. 16-1 at
95 with Nov. 28, 2014 - Dec. 12, 2014 Pay Stub, doc
#EME00083, ECF No. 16-1 at 96.)
Mr. Butler's Job Duties
Mr. Butler worked for the EME Defendants, Mr. Butler was
responsible for making construction, commercial, and HVAC
sales to contractors and suppliers. (Butler Dep. at
15:20-16:03, 17:10-19, 18:11-23:14, Ex. F, ECF No. 16-1;
Bodnar Dep. 9:03- 09, Ex. G, ECF No. 16-1.) One of Mr.
Butler's critical duties involved building and
maintaining relationships with current and potential clients
“[e]ither via phone, e-mail, or face-to-face
visits.” (Butler Dep. 23:11-14, Ex. F, ECF No. 16-1.)
Mr. Butler described his process for obtaining sales for the
EME Defendants as follows:
Relationships are very important in any sales. I have had
many relationships with many general contractors. I'd
stay in touch with general contractors. General contractors
would contact me and ask me to bid particular jobs for them.
I would evaluate through estimating off of blueprints or
conversation with the general contractors, find out what they
want, and then see if it was viable for us to do the work and
for us to make money on those jobs.
(Id. at 18:11-23.)
Defendants did not provide Mr. Butler with any sales or
estimating training. (Id. at 16:20-17:01.) On a
typical work day, Mr. Butler arrived to the office by 7 or
7:30 in the morning, depending on his workload. (Id.
at 17:05-07.) He would spend a few hours finishing paperwork
and assigning staff where they needed to go. (Id. at
17:06-07.) After he completed paperwork, if he ...