Polly v. E & E Foods

 THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 LOGAN POLLY, CASE NO. C20-1432-JCC 10 Plaintiff, ORDER 11 v. 12 E&E FOODS, et al., 13 Defendants. 14 15 This matter comes before the Court on Plaintiff’s motion for partial summary judgment 16 (Dkt. No. 6) and Defendants E&E Foods and F/V Beagle LLC’s (“Defendants”) cross-motion for 17 partial summary judgment (Dkt. No. 9).1 Having considered the parties’ briefing and the relevant 18 record, and finding oral argument unnecessary, the Court hereby DENIES Plaintiff’s motion 19 (Dkt. No. 6) and GRANTS Defendants’ cross-motion (Dkt. No. 9) for the reasons explained 20 herein. 21 I. BACKGROUND 22 Defendant E&E Foods hired Plaintiff to work the 2019 salmon season as a seafood 23 24 1 Defendants also ask the Court to strike Plaintiff’s reference to the Cape Greig as a “slave ship.” (Dkt. No. 16 at 2.) Such inflammatory assertions, without evidentiary support, 25 particularly in light of the ongoing Black Lives Matter movement, have no place in this Court. While the Court declines to strike the statement in this instance, counsel is cautioned regarding 26 continued use of such inflammatory rhetoric. 1 processor aboard Defendants’ processing vessel. (Dkt. No. 11-9 at 1–2.) Undisputed terms of the 2 arrangement include the following: Plaintiff would be paid an hourly base wage and time and a 3 half for hours worked over 8 per day and 40 per week. Plaintiff would also reside on the vessel 4 during the season—with room and board provided at Defendants’ expense—and be scheduled 5 for 16-hour daily shifts. (Dkt. Nos. 1 at 4, 6 at 1–2, 9 at 5.) Defendants had a “no fish, no pay” 6 policy, meaning when there were no fish for Plaintiff to process, he would not be paid, even if he 7 were otherwise scheduled to work during that time. (Id.) At issue in the instant motions is 8 whether Defendant’s “no fish, no pay” policy complies with the Fair Labor Standards Act 9 (“FLSA”), 29 U.S.C. § 201 et seq., and Washington’s Minimum Wage Act (“MWA”), Wash. 10 Rev. Code. § 49.46.005 et seq. Plaintiff, who was not paid for the time he spent on-call during 11 the 2019 season, moves for summary judgment on his unpaid wage claims. (Dkt. No. 6.) 12 Defendants, who oppose, also cross-move solely on Plaintiff’s MWA wage claim. (Dkt. No. 9.)2 13 II. DISCUSSION 14 A. Legal Standard 15 In general, the Court will “grant summary judgment if the movant shows that there is no 16 genuine dispute as to any material fact and the movant is entitled to judgment as a matter of 17 law.” Fed. R. Civ. P. 56(a). A fact is material if it “might affect the outcome of the suit under the 18 governing law,” and a dispute of fact is genuine if “the evidence is such that a reasonable jury 19 could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 20 248 (1986). “[A] party seeking summary judgment . . . bears the initial responsibility of 21 informing the district court of the basis for its motion, and identifying those portions of [the 22 record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex 23 Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party meets its burden, the party 24 25 2 Plaintiff also brought a claim for maintenance and cure following an alleged injury that occurred while on the vessel. (Dkt. No. 1 at 3–4.) That claim is not the subject of the instant 26 motions. 1 opposing summary judgment “must do more than simply show that there is some metaphysical 2 doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 3 587 (1986). The nonmoving party must “show[] that the materials cited do not establish the 4 absence . . . of a genuine dispute” or “cit[e] to particular parts of . . . the record” that show there 5 is a genuine dispute. Fed. R. Civ. P. 56(c)(1). When analyzing whether there is a genuine dispute 6 of material fact, the “court must view the evidence ‘in the light most favorable to the opposing 7 party.’” Tolan v. Cotton, 572 U.S. 650, 657 (2014) (quoting Adickes v. S.H. Kress & Co., 398 8 U.S. 144, 157 (1970)). 9 B. Unpaid Wage Claims 10 Plaintiff asserts that, under both the FLSA and MWA, he is entitled to hourly wages for 11 the time he spent on-call during his scheduled shifts, regardless of whether there were fish for 12 him to process. (Dkt. No. 1 at 4.) At issue is whether he was “engaged to wait,” for his 13 employer’s benefit, or “wait[ing] to be engaged,” for his own benefit. Owens v. Loc. No. 169, 14 Ass’n of W. Pulp and Paper Workers, 971 F.2d 347, 350 (9th Cir. 1992). Plaintiff argues that the 15 “MWA has been construed consistently with the FLSA” and that, as a result, the Court need not 16 separately address the MWA. (Dkt No. 6 at 3 n.1.) But, as described below, the MWA contains a 17 plainly-applicable exception that FLSA does not. Therefore, the Court will first address 18 Plaintiff’s MWA claim. 19 1. MWA 20 Defendant cross-moves for partial summary judgment, seeking dismissal of Plaintiff’s 21 MWA claim based upon the MWA’s exclusion from Washington’s minimum wage statutes of 22 “any individual whose duties require that he or she reside or sleep at the place of his or her 23 employment.” Wash. Rev. Code. § 49.46.010(3)(j). “Whether the [] exclusion applies is a 24 question of worker categorization rather than the compensability of any given hour in a worker’s 25 day.” Berrocal v. Fernandez, 121 P.3d 82, 88 (Wash. 2005). If there exists “no factual 26 disagreement . . . that [Plaintiff] lived and slept at [his] place of employment” then Plaintiff is not 1 subject to the MWA. Id. 2 Plaintiff does not dispute that he lived and slept on Defendant’s vessel. (See generally 3 Dkt. No. 16.) Instead, he attempts to distinguish the facts of Berrocal from the facts of this case. 4 (Id. at 5–6.) But this argument is unavailing. The MWA’s plainly-stated exclusion for workers 5 who “reside or sleep at the place of his or her employment,” even narrowly construed, squarely 6 applies to Plaintiff. See Wash. Rev. Code. § 49.46.010(3)(j). Therefore, Plaintiff is not subject to 7 the MWA. 8 Accordingly, the Court GRANTS Defendants’ cross-motion for partial summary 9 judgment on Plaintiff’s MWA claim. 10 2. FLSA 11 The FLSA requires employers to pay certain employees a minimum wage for each hour 12 worked, including overtime pay. See 29 U.S.C. §§ 206, 207, 213. Whether time spent on-call is 13 “predominately for the employer’s benefit” and therefore subject to the FLSA’s minimum wage 14 requirement is “dependent upon all the circumstances of the case.” Brigham v. Eugene Water & 15 Elec. Bd., 357 F.3d 931, 936 (9th Cir. 2004) (citing Armour & Co. v. Wantock, 323 U.S. 126, 16 132 (1944)). Determining whether time on-call is predominantly for an employer’s benefit 17 requires a fact-intensive inquiry into the nature of the agreement between the parties and the 18 degree of freedom the employee has to engage in personal activities while not working. Id. 19 To prevail on a motion for summary judgment on his FLSA claim, Plaintiff must 20 demonstrate a lack of material disputed facts or provide sufficient unrebutted evidence for a 21 reasonable jury to conclude that he is entitled to the payment of a minimum wage while on-call. 22 Celotex Corp., 477 U.S. at 323–24. Plaintiff fails to meet this burden. The only evidence Plaintiff 23 offers is a short declaration regarding his understanding of the terms of the parties’ agreement, a 24 brief declaration from counsel regarding industry practices,3 and one of Defendants’ standard 25 3 Defendants object to portions of the declaration on the grounds that they contain legal 26 conclusions, unsubstantiated allegations, and hearsay. (Dkt. No 9 at 8–9.) Because Defendants 1 employment agreements. (Dkt. Nos. 6-1, 6-2, 6-3.) By contrast, Defendants submit significant 2 evidence regarding the nature of their agreement with Plaintiff, evidence of industry practices 3 supporting their position, deposition testimony from Plaintiff seemingly at odds with his 4 declaration, and the parties’ written agreement, which indicates “[t]here is no minimum or 5 guarantee of hours.” (Dkt. Nos. 11-1, 11-2, 11-3, 11-4, 11-5, 11-7, 11-8 at 5–6, 11-9.) Because 6 resolution of Plaintiff’s FLSA claim depends on genuinely disputed issues of material fact, the 7 Court DENIES Plaintiff’s motion for summary judgment on his FLSA claim. 8 III. CONCLUSION 9 For the foregoing reasons, the Court DENIES Plaintiff’s motion for partial summary 10 judgment (Dkt. No. 6) and GRANTS Defendants’ cross-motion (Dkt. No. 9). 11 12 DATED this 19th day of January 2021. A 13 14 15 John C. Coughenour 16 UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 put forth sufficient evidence to demonstrate a disputed material fact, regardless of the import of 26 counsel’s declaration, the Court need not rule on this objection now.