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Petrone v. Werner Enterprises, Inc.

United States District Court, D. Nebraska

August 3, 2015

PHILLIP PETRONE, et al., Plaintiffs,
v.
WERNER ENTERPRISES, INC., and DRIVERS MANAGEMENT, LLC, Defendants. PHILLIP PETRONE, et al., Plaintiffs,
v.
WERNER ENTERPRISES, INC., and DRIVERS MANAGEMENT, LLC, Defendants

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          For Philip Petrone, Plaintiff (8:11-cv-00401-LES-FG3): Justin L. Swidler, PRO HAC VICE, Richard S. Swartz, SWARTZ, SWIDLER LAW FIRM, Cherry Hill, NJ.

         For Stewart Fisher, Jasbir Singh, Brian Pankz, Plaintiffs (8:11-cv-00401-LES-FG3): Justin L. Swidler, SWARTZ, SWIDLER LAW FIRM, Cherry Hill, NJ.

         For Jason Dewayne Gunn, Ahmad Abdinasir, Adam F. Akhalu, Latoshia Denise Anderson, Derek C. Anglero, Alan Blane Arthur, Christopher Ayala, Tim McCabe Bailey, Csaba G. Barabas, Henry Barentine, Joseph E. Barker, Diego Armando Barraza, Richard Clair Bash, Terry Lee Batko, Elizabeth Baumgartel, Jeremy Alfred Bennett, Gary M. Bernstine, Stacy Lynn Bluebird, Rafarel K. Boadu, Damien Marcus Boyer, Christina Bradley, Elias Bratcher, Justin Bristol, Karl Matthew Emerson, Scott A. Larrow, Steve N. Neely, Tonya McDonald, Micheal Anthony Brooks, Nicholas Brown, Olivia Bryant, Lawrence F. Bunkowski, David Burgess, Steven Dale Burgess, Justin Burkholder, Richard Calvert, Johnny Carter, Brett Carty, Joel Castaneda-Dominguez, Lawrence Edward Cecil, Issac Houston Chase, Victor Chavarria, Paul L. Cleaver, Larry Nathaniel Clinton, Jr., Kenneth B. Cloud, Thomas Ricky Coker, Kenya Dyone Collins, Michael Ray Combs, Kenneth Ray Cook, Richard W. Copley, Howard Corley, Jr., Jeffrey G. Crissman, Jimmy Carl Criswell, Thomas Cross, Francisco Cruz, James Michael Cullity, Kabik Daam, Wilson M. Dagaye, David Davila, Michael Scott Davis, Jermey Leonard Dawson, Perry A. Deeke, David Andrew Delisi, Louis James Dietry, John Michael Doss, Steven Dubinsky, Luis Duran Saldivar, Carl Eberhardt, Harcourt P. Edgecombe, Douglas Allen Elbon, Terry Lee Elkins, Paul Terry Elliott, Jr., Mark C. Eure, Seth Fezatte, Roscoe W. Forman, Anthony Frank, Nathaniel Anthony Frazier, Jr., Ernest G. Fulp, Jr., Peter Liyayi Gaitano, Jose Garcia-Gonzalez, JoAnna Hancock Geddings, Clair Henry Gilmore, Jr., Fred Glass, III, John Christopher Glover, Jean Marie Gogolin, Steven Scott Goodman Tamaro R. Graham, Eric Franklin Green, August William Grow, Gary Eugene Gude, Debra Paula Gugle, Fardrel J. Guice, Shaun Phillip Guthrie, Randy Halcomb, Kathleen M. Hallmark, D'Andre LeMare Handy, John Robert Hardin, Robert William Herrmann, ail Marie Hess, Annette Fay Holder, Charles Roy Honacher, Michael Hossler, Robert Edward Howes, Brett Allen Huckstep, Byron Huffin, Loman Hutchings, Delandos Jackson, Morris Jacobs, Jr., Daniel Jefferson, Ciera Lillian Jenkins, Darrell Wayne Johnson, David Allen Jones, Michael T. Jones, Willie Lee Jones, Sr., Michael A. Karpouskas, Behzad Kazemiseresht, Gary Ward Kennerly, Kristopher Kibby, Ronald L. Kilpatrick, Nathan Phillip Koehler, Michael Kovacsi, Timothy Michael Kyser, Martha L. Lantz, Alonza David Lee, Guertho Lemorin, Darran LaVan Lewis, Joshua Brooke Lipham, Russell E. Lourwood, Paul Lowe, Stacey Marie Lowe, Krystel Lucas, Kevin L. Maehrer, Jonathan Michael Magnuson, James Mancuso, Jeremy L. Maness, Thomas C. Marchione, William Clyde Marks, David Jacob Marrs, Norrek McCarty, Matthew Jay McDaniel, David Andrew McDevitt, Samuel Ray McMillian, Doug Anthony McSwain, Jack Dean Michael, Steven Richard Milstead, Robert John Monroe, Carl Montgomery, Gary C. Montgomery, Debra A. Moore, Michael W. Moore, Clell Morgan, II, John Anthony Morris, Michael Wayne Murray, Lorenc Musabelli, Nathan Joel Nadell, Saleh M. Nasser, Chad Michael Newsom, Aaron Jermain Nixon, Luis S. Ogando Colon, Peter B. Oh, Marcus Oscar Orr, Christopher Otto, Donald Wade Owens, Charles D. Paglicco, Jr., James G. Paige, Jr., Matthew Pereira, Michael Andrew Pertle, Willie James Petty, Jr., Jarrod Scott Pitts, Robert Lee Plunkett, James Matthew Potts, Bryan James Pratt, David Frank Pressley, John Jason Pryor, Joseph Pusateri, Noel Ramirez, Steven M. Ramsey, John Manson Ray, Heath Daniel Reams, Jasper U. Reaves, John Reddick, Benjamin Reno, Oscar Reyes, Brandon Richard, Gregory Scott Vian Risdon, Clarence Robinson, Rayo Emmiito Robinson, Barney Robson, Brandon Roldan, William Thomas Roop, Curtis Ryals, Nickilas Sams, Franklin L. Schmidt, III, Barbara Ann Scoby, Joseph Franklin Scott, Robert A. Scott, III, Vernon B. Seaborn, Jr., Michael A. Sederquist, Phillip Wayne Senecal, Guillermo Serrano-Lopez, Pablo A. Serrano-Lopez, Charles Shackelford, Katherine P. Shoemaker, Howard Arthur Singer, Harpal Singh, Dennis Dean Smith, Kyle Anthony Smith, Randy Shane Smith, Timothy Leonardo Smith, Quitz Snider, Richard Adam Solomon, Roman Stelter, Winston Stewart, Shawn Michael Stone, Derick Lynn Sullins, James Julian Alan Surrency, Tim J. Swadley, George A. Tapia, Shannon Leigh Terry, Noulieng Thisanakone, Dan Vilaythong, Erick Thompkins, Brennon Thompson, Stephen Loyd Tillerson, David Wright Tillman, Kevin Toll, Richard F. Torrisi, Jeffrey S. Torsrud, Gregory D. Trent, Jose Valentine, Luanne Santoro Voght, Wayne Woodrow Waite, David C. Waldron, Marisa Sabrinda Walker, Robert Wallace, Lance Wallace, Patrick Mark Walters, Steven Anthony Wasson, Joseph Kane Weatherford, Derrick Earl Webb, Stacey Webb, Trey Anthony Webber, Keeley Wheeler, Jr., Johnny Keith White, Kacy Fonteze Williams, Tiffany Nicole Williams, Steven M. Willis, Reia Winn, Marlon Dewayne Witcham, Devon Terelle Wofford, William Wood, Mark Antonio Woods, Warren R. Wright, Plaintiffs (8:11-cv-00401-LES-FG3): Justin L. Swidler, PRO HAC VICE, SWARTZ, SWIDLER LAW FIRM, Cherry Hill, NJ.

         For Werner Enterprises, Inc., doing business as Werner Trucking, Drivers Management, LLC, Defendant (8:11-cv-00401-LES-FG3): Elizabeth A. Culhane, Joseph E. Jones, Patrick J. Barrett, FRASER, STRYKER LAW FIRM, Omaha, NE.

         For Philip Petrone, Brian Pankz, on behalf of himself and all those similarly situated, Stewart Fisher, on behalf of himself and all those similarly situated, Jasbir Singh, on behalf of himself and all those similarly situated, Plaintiffs (8:12-cv-00307-LES-FG3): Justin L. Swidler, PRO HAC VICE, Richard S. Swartz, SWARTZ, SWIDLER LAW FIRM, Cherry Hill, NJ.

         For Werner Enterprises, Inc., doing business as Werner Trucking, Drivers Management, LLC, Defendants (8:12-cv-00307-LES-FG3): Elizabeth A. Culhane, Joseph E. Jones, Patrick J. Barrett, Sarah L. McGill, FRASER, STRYKER LAW FIRM, Omaha, NE.

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          MEMORANDUM AND ORDER

         LYLE E. STROM, Senior United States District Judge.

         The matter is before the Court on the parties' cross-motions for summary judgment (Filing Nos. 316 and 321).[1] This is a class action for unpaid wages under the Fair Labor Standards Act of 1938 and Nebraska wage and hour laws. After reviewing the briefs, evidentiary record, and applicable law, the Court finds as follows.

         Background and Procedural History

         Defendants Werner Enterprises, Inc. and Drivers Management, LLC (collectively " Werner" ) operate an approximately eight-week Student Driver Program as part of the training and orientation for new drivers. Throughout the Student Driver Program, a student drives with an experienced driver during which the student assists in the driving, fueling, maintenance, and communications with Werner. Student drivers are required to accurately log their duty status throughout each workday by using the duty status regulated by the Department of Transportation (" DOT" ). Students are paid a flat weekly rate; however, Werner reviews the total number of on-duty hours logged and if necessary, supplements the student's pay to ensure minimum wage is paid for every hour of on-duty time.

         Employees are directed to log their " duty status" in the Qualcomm system according to a set of rules and definitions in Werner's employee manual. During the student driver program, driver trainers instruct the students on how to operate the Qualcomm system and log their duty status. The Werner manual includes the following four definitions:

1. Off Duty (Section 395.8) The period of time the Driver is Off-Duty and has no responsibility to the carrier, equipment, or cargo. Driver is relieved from all responsibility for his vehicle during meal, coffee, and routine stops, providing that said vehicle is legally and safely parked and keys for the vehicle are in the driver's possession. The break must be a minimum of 30 minutes in duration. . . .
2. Sleeper Berth (Section 395.1) The time the Driver spends resting in the sleeper berth.
3. Driving (Sections 395.2 and 395.3) DRIVE and DRIVING TIME shall include all time spent at the driving controls of a motor vehicle in operation.
4. On Duty - Not Driving (Sections 395.2 and 395.3) On-duty time means all time from the time a Driver begins to work or is required to be in readiness to work until the time the Driver is relieved from work and all responsibility for performing work. . . .

(Filing No. 323 at Exhibit 1-B). The messages are sent electronically to a corresponding message system at Werner's headquarters.

         During the eight-week program, students may take leaves of absence but are discouraged from doing so. Werner's leaves of absence policy states,

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We discourage leaves of absence but understand that unforeseen circumstances can arise. Unnecessary breaks in training hinder the learning process and delay a student's eligibility to test out. If your student wants to get off the truck, have them call their SDM. We do not want to force a student into ULOA (unauthorized leave of absence) situations if we can avoid it. LOAs are looked at on an individual basis.

(Filing No. 323 at Exhibit 1-L). During the student driver program, student drivers are on the road for approximately 8 weeks and under the supervision of driver trainers. Student drivers typically spend one day at home for every week the student drivers are away from home training ( See Filing No. 325 at ¶ 6). Student drivers generally complete 250-300 hours of driving instruction.

         Student drivers were trained to use the Qualcomm system and log " Line 1 off-duty" when on break not in the sleeper berth or truck cab. Line 1 time includes time waiting, stretching, using the bathroom, eating, and showering. Werner's Handbook has a policy that breaks are logged on Line 1 and should be 30 minutes or more (Filing No. 323 at Exhibit 1-B). In addition, all student drivers were directed to log all time spent in the sleeper berth as Line 2. Werner's computer system would total the time drivers log on Lines 3 and 4 to determine payment of minimum wage. Werner did not consider time logged in " Line 1 off-duty" or " Line 2 sleeper berth" in determining whether a student driver earned minimum wage.

         Plaintiff Philip Petrone filed this action on September 14, 2011, in the Eastern District of Pennsylvania, asserting minimum wage violations of the Fair Labor Standards Act (" FLSA" ) and Pennsylvania state law. On November 17, 2011, the Eastern District of Pennsylvania granted the defendants' motion to transfer to the District of Nebraska. On December 19, 2012, the Court certified this matter as a collective action on behalf of all drivers who participated in Werner's over-the-road training program in the three years preceding the filing date of plaintiffs' motion.

         Plaintiffs requested leave to file an amended FLSA complaint and filed a new complaint, " Petrone II," asserting violations of the Nebraska Wage Payment and Collect Act and the Nebraska Wage and Hour Act. The Court consolidated the two cases on October 11, 2012. On July 10, 2013, the Court granted Rule 23(b)(3) class certification for " Petrone II." On May 15, 2015, plaintiffs and defendants filed cross motions for summary judgment (Filing Nos. 316 and 321).

         Standard of Review

         Summary judgment is appropriate when, viewing the facts and inferences in the light most favorable to the nonmoving party, " 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); SeeCelotex Corp. v. Catrett, 477 U.S. 317, 321-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). " The inquiry performed is the threshold inquiry of determining whether there is the need for a trial -- whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, .Inc, 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The evidence must be viewed in the light most favorable to the nonmoving party, giving the nonmoving party the benefit of all ...


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