SHARON LOVELACE BLACKBURN, District Judge.
This case is presently pending before the court on plaintiff's Motion for Partial Summary Judgment, (doc. 29);
Pursuant to Fed. R. Civ. P. 56(a), summary judgment is appropriate "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); Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991); see Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Once the moving party has met its burden, the non-moving party must go beyond the pleadings and show that there is a genuine issue of fact for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Fed. R. Civ. P. 56(c)(1); see also Clark, 929 F.2d at 608 ("it is never enough simply to state that the non-moving party cannot meet its burden at trial").
In deciding a motion for summary judgment, the court's function is not to "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249. "[C]ourts are required to view the facts and draw reasonable inferences `in the light most favorable to the party opposing the [summary judgment] motion.'" Scott v. Harris, 550 U.S. 372, 378 (2007)(quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)(per curiam)). Nevertheless, the non-moving party "need not be given the benefit of every inference but only of every reasonable inference." Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir. 1999)(citing Brown v. City of Clewiston, 848 F.2d 1534, 1540 n.12 (11th Cir. 1988)); see also Scott, 550 U.S. at 380 ("When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.").
Defendant, Morris-Shea Bridge Company, is a "deep foundation contractor," whose work includes "foundation drilling, pile driving, [and] shoring." (Doc. 30-5 at 13-14.) Its corporate office is located in Irondale, Alabama, a suburb of Birmingham; defendant seldom has field work in the Birmingham area. (Id. at 77-78; doc. 32-1 at 56.) Defendant has 120-150 employees nationwide, working in the corporate office, the equipment yard, and in the field. (Doc. 30-5 at 76.)
Defendant's superintendents work in the field on construction jobs for the company. (Doc. 32-6 ¶ 2.) Superintendents seldom, if ever, report to or work in the corporate office; "the actual site of the construction [job] is where . . . Superintendents . . . work overseeing and managing the day-to-day construction work of [defendant's] employees and coordinating with other companies also on site." (Id.)
Defendant employs workers at the construction site. (Id. ¶ 3.) For these workers, the job site is "their home base during a construction job and [they] report to the construction site daily for their work." (Id.) The superintendents give out work assignments at the job sites and they evaluate the employees based on their observations at the job site. (Id.) Decisions regarding hiring, disciplining, transferring, and terminating employees working in the field are made by the superintendent at the job site, with or without approval from the corporate office. (Id.; see also doc. 30-5 at 19 [corporate office involved with reassigning workers at the end of a job]; doc. 30-5 at 69 [corporate office approved raises based on recommendation of superintendent].) Most employees working the field, superintendents included, either travel directly to the other job site to report for work or may go home to their personal residence briefly before traveling directly to the new construction job site. (Doc. 32-6 ¶ 5.)
Plaintiff, Marvin Stanley "Stan" Reaves lives in Lincoln, Alabama. (Doc. 32-1 at 14.) He began working for defendant in July 2000 as a welder. (Id. at 113-14; doc. 32-2 at 4.) He was promoted to foreman in 2001, and supervisor in 2008. (Doc. 32-1 at 114-17; doc. 30-3 at 83-84.) Lee Dubberly was plaintiff's superintendent. (Doc. 32-4 at 15-16.)
Plaintiff was laid off in 2009. (Doc. 32-1 at 122.) A year later, in December 2010, Dubberly hired plaintiff as a foreman to work on a construction project in the area around New Orleans, Louisiana. (Id. at 126-27; doc. 32-4 at 30-31.) This project, to build gates in a flood wall around New Orleans, consisted of three jobs: Job 935, "Bayou Dupre Sector Gate;" Job 945, "Western Tie-In Structure;" and Job 948, "Hero Canal." (Doc. 30-5 at 36-38, 40; doc. 32-1 at 130-32.) Dubberly told plaintiff where to go to be ready for work. (Doc. 32-4 at 31.) Once he began working on the Louisiana jobs, plaintiff lived in his camper, which he was parked at a campsite about 15-20 miles from Job 935's job site; he did not drive home to Lincoln after work each day. (Doc. 32-1 at 131-32.) Although plaintiff worked at the three job sites around New Orleans, his camper "stayed in one spot." (Id. at 132-33.)
Plaintiff testified that he was "a working supervisor" on these jobs. (Doc. 32-1 at 130-32, 141.) His work responsibilities included assigning work to the members of the pile-driving crew, conducting safety meetings with the crew, and performing pile-driving work. (Id. at 140-41.) This work was performed at the job site without communication with the corporate office.
For most of 2011, Dubberly supervised plaintiff.
Defendant contends 25 employees were on the payroll of the Louisiana job sites on August 13, 2011. (Doc. 35 at 16 and nn.6-9.) On August 16, 2011, the day plaintiff requested medical leave, it contends it had 26 employees on payroll at the Louisiana job sites. (Id. at nn.10-13.) Plaintiff does not dispute these numbers. (Doc. 41 at 2.)
Plaintiff alleges, "Defendant employs more than 50 people within a 75 mile radius of its home office in Irondale, Alabama, when the nearby equipment yard (located in Wilsonville) is also included." (Doc. 41 at 4 [citing doc. 30-5 at 76-78].) He bases this assertion on the deposition of Richard Shea, defendant's vice president. (Id.) However, Shea's deposition testimony is equivocal:
(Doc. 30-5 at 76-78.) However, in his Declaration submitted in support of defendant's Motion for Summary Judgment, Shea was more specific; he testified:
(Doc. 32-5 ¶¶ 3-4 [emphasis added].)
In his surreply, plaintiff contends that additional employees, including superintendents and foremen, should be added to the total number of employees whose worksite in the corporate office. (Doc. 44-1 at 2-3.) However, plaintiff has not presented any evidence of how many additional employees should be added.
Defendant contends that plaintiff's claims are due to be dismissed because plaintiff is not an "eligible employee" covered by the FMLA.
Pursuant to the FMLA, "an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period" for certain qualifying reasons. 29 U.S.C. § 2612(a)(1). The FMLA defines "eligible employee" as:
29 U.S.C. § 2611(2)(A). However, "[t]he term `eligible employee' does not include. . . (ii) any employee of an employer who is employed at a worksite at which such employer employs less than 50 employees if the total number of employees employed by that employer within 75 miles of that worksite is less than 50." Id. (B)(ii).
Harbert v. Healthcare Services Group, Inc., 391 F.3d 1140, 1147-48 (10th Cir. 2004).
The regulations provide, "An employee's worksite under FMLA will ordinarily be the site the employee reports to or, if none, from which the employee's work is assigned." 29 C.F.R. § 825.111(a). "For employees with
The record evidence shows, without any meaningful dispute, that all work performed by plaintiff between December 2010, when he was hired to work on the Louisiana job sites, and August 16, 2011, when he told Richard Shea he needed to take leave, was performed in the area of the three job sites in Louisiana. (See doc. 32-1 at 129-33, 140-48.) Given the purpose of the 50/75 rule and the facts that plaintiff reported to work at the job sites in Louisiana, that he received his job assignments from Dubberly at the job sites in Louisiana, and, that, at the end of the work day, he returned to his camper within 20 miles of the job sites in Louisiana, the court finds that plaintiff's worksite was the area of the three job sites on the New Orleans flood wall. Specifically, the court notes that plaintiff's work as a foreman and a pile-driver would not be covered by a corporate-office employee or an employee of the equipment yard. Rather, to cover defendant's work during the time he would be on medical leave, defendant would have to find someone to perform the work in Louisiana. As such, the court finds that plaintiff's worksite is the field — in this case, the area of the three jobs on the New Orleans flood wall — and not the corporate office.
The undisputed evidence shows that defendant had 25-26 employees working on the three projects in Louisiana at the time plaintiff requested FMLA leave. Because defendant did not employ more than 50 employees within 75 miles of the Louisiana job sites, plaintiff is not an eligible employee. Therefore, defendant's Motion for Summary Judgment, (doc. 32), will be granted and plaintiff's FMLA claims will be dismissed.
For the foregoing reasons, the court is of the opinion that there are no material facts in dispute and defendant is entitled to judgment as a matter of law. An Order granting defendant's Motion for Summary Judgment, (doc. 32), will be entered contemporaneously with this Memorandum Opinion.
Because the court finds that plaintiff was not an eligible employee under the FMLA, his claims are due to be dismissed. Therefore, plaintiff's Motion for Partial Summary Judgment, (doc. 29), and defendant's Motion for Partial Summary Judgment on the Scope of Backpay Period, (doc. 36), will be denied as moot.
An Order denying as moot the Motions for Partial Summary, (docs. 29 and 36), will be entered contemporaneously with this Memorandum Opinion.
For the foregoing reasons, the court is of the opinion that there are no material facts in dispute and defendant is entitled to judgment as a matter of law. An Order granting defendant's Motion for Summary Judgment, (doc. 32), and denying as moot the Motions for Partial Summary Judgment, (docs. 29 and 36), will be entered contemporaneously with this Memorandum Opinion.
29 C.F.R. § 825.111(a)(2).
