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Butler v. Eme Inc

United States District Court, D. Utah, Central Division

May 18, 2018

VANDY BUTLER, Plaintiff,
v.
EME, INC; EME MECHANICAL; EME SERVICE; and JOHN BODNAR, Defendants.

          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)

          Evelyn J. Furse, United States Magistrate Judge.

         EME, Inc., EME Mechanical, EME Service, and John Bodnar (collectively, “the EME Defendants”), move the Court[1] 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.

         The 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.

         I. STANDARD OF REVIEW

         Courts 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 judgment.

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. 1997).

         II. MR. BUTLER'S MOTION FOR SUMMARY JUDGMENT

         Mr. 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 judgment added.

         Mr. 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 asserted.

         Mr. 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 evidence.

         Mr. 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.

         Mr. 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 claim.

         Mr. 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.

         III. FACTUAL BACKGROUND

         Because 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 standard).

         A. The Employment Contract

         Mr. 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. 16-1.)

         Subsequently, 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.)

         On 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.)

         A few 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).

         Under 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.)

         The EME 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.)

         B. Mr. Butler's Job Duties

         While 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.)

         The EME 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 ...


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