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Holland v. Bynum & Sons Plumbing, Inc.

United States District Court, N.D. Georgia, Atlanta Division

September 11, 2014

JAMES HOLLAND, Plaintiff,
v.
BYNUM & SONS PLUMBING, INC., et al., Defendants.

MEMORANDUM OPINION INCLUDING FINDINGS OF FACT AND CONCLUSIONS OF LAW

JANET F. KING, Magistrate Judge.

This case is before the court following a bench trial conducted on June 23 and 25, 2014. [Docs. 68 and 69].[1] On March 11, 2011, Plaintiff James Holland filed a complaint against Defendants Bynum & Sons Plumbing and Scott Bynum alleging that Defendants improperly classified him as an independent contractor rather than as an employee and failed to pay him the wages he was entitled to under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et seq. [Doc. 1]. After Defendant Bynum & Sons Plumbing filed for Chapter 11 bankruptcy, triggering the automatic stay of proceedings, pursuant to 11 U.S.C. § 362(a), as to that Defendant, the case proceeded against Defendant Scott Bynum ("Bynum"), who is proceeding pro se. [Docs. 18 and 24].

Plaintiff filed a motion for summary judgment on December 3, 2012. [Doc. 35]. After consideration of the briefs of the parties, which District Judge Forrester, then the presiding judge on the case noted did not comply with the court's local rules [Doc. 46 at 2], the Judge held that Defendant Bynum was an employer as defined by 29 U.S.C. § 203(d) of the FLSA and, therefore, that he is personally liable for any damages resulting from violations of the FLSA [Id. at 5-6]. The Judge further held that Plaintiff had been improperly classified as an independent contractor under the provisions of the FLSA and, instead, was an employee of Defendant Bynum and entitled to minimum and overtime wages. [Id. at 7-10].

As to the issue of damages flowing from any failure of Defendant Bynum to pay Plaintiff minimum wage and overtime compensation due him under the FLSA, the Judge found, based on the incomplete record before him, that he did "not presently have enough information before [him] to even guess the overtime hours Holland worked" and noted that the evidence was disputed, especially in light of the lack of official records from the employer. [Doc. 46 at 11-12]. Although the Judge noted having Plaintiff's 1099s demonstrating the total amount he was paid for the years employed at Bynum & Sons Plumbing, he stated that this information does not provide Plaintiff's hourly rate. [Id. at 12]. Accordingly, the Judge could not determine the amount, if any, of damages. [Id.].

The Judge further found that, once the amount of damages was determined, pursuant to 29 U.S.C. § 216(b), Plaintiff was entitled to liquidated damages, "which should be equal to actual damages[.]" [Id. at 12-13]. And, finally, the Judge found that Defendant Bynum acted willfully in mis-identifying Plaintiff as an independent contractor and that, therefore, the three-year statute of limitations applied in this case.[2] [Id. at 13-14].

On March 10, 2014, Plaintiff and Defendant Bynum consented to proceed before the undersigned on a bench trial to determine the issue of damages for any violation of the FLSA. [Doc. 60]. The bench trial was held on June 23 and 25, 2014. [Docs. 68 and 69]. Plaintiff filed a post-trial brief in support of his claims for FLSA damages. [Doc. 72]. And Plaintiff filed a motion [Doc. 73] for approval of attorney's fees and costs. Defendant Bynum did not file a post-hearing brief or a response to the motion for fees and costs.

I. Bench Trial Evidence

With respect to the evidence introduced during the bench trial, Plaintiff Holland objected to the introduction by Defendant Bynum of any Bynum & Sons Plumbing records pertaining the hours that he worked and his compensation. (Tr. 6/23/14 at 7-11). This dispute over the introduction of such records arose due to Defendant Bynum's failure to produce the records, in response to discovery requests, during the discovery period. (Id.). After the case was stayed against Defendant Bynum & Sons Plumbing, Plaintiff sought from Defendant Bynum business records relating to Plaintiff's compensation and hours of employment. In response to those discovery requests, Defendant Bynum stated that he did not have possession of the records and that Plaintiff should seek to obtain the records from the business. [Doc. 26, Exhibit 1]. In ruling on Plaintiff's objection to Defendant Bynum introducing business records at the bench trial, the court determined that Defendant Bynum, due to his relationship to the business and because he was able to obtain some of the records in preparation for the bench trial, had authority to access and produce the business records in response to discovery requests and, therefore, could not introduce the records during the bench trial. (Tr. 6/23/14 at 11-12). Plaintiff did not, during discovery or in preparation for the bench trial, apparently make any attempt to obtain directly from Bynum & Sons Plumbing the business records regarding his compensation or hours of employment.

Kimberly Saunders, who is Plaintiff Holland's fiance and has been in a relationship with him for seventeen years (with three children a result of that relationship), was employed by Bynum & Sons Plumbing as an Office Dispatcher from the end of 2006/early 2007 through sometime in May 2010. She was terminated from her employment. (Tr. 6/23/14 at 27-28). Her duties included scheduling customer appointments and dispatching the eight to ten plumbers working for the business to the appointments. (Id. at 28-29). The normal operating hours for the business was 8:00 a.m. to 4:00 p.m., Monday through Friday, and on Saturdays until noon. (Id. at 29). Any emergency appointments needing attention after those hours or on Sunday were handled by the dispatcher on call and routed out to one of the plumbers. (Id.). Although Saunders was not aware of the status of each plumber each day, she would have an idea of how long into the evenings each plumber, including Plaintiff Holland, [3] might be working and which appointments remained on the schedule. (Id. at 30-31).

The plumbers, including Plaintiff Holland, covered appointments to the north in Gainesville, Georgia, and to the south in Valdosta and Bainbridge, Georgia, as well as in Alabama. (Id. at 31, 33, 49). Plaintiff Holland regularly worked six days a week and was on call on Sundays approximately once every month and a half.[4] He reported to work between 8:00 and 8:30 a.m. and did not arrive at home in the evenings until between 9:00 and 10:00 p.m. (Id. at 32-35, 49-51). During the relevant time period, Saunders stated that she and Plaintiff Holland took two weeks of vacation time each year. (Id. at 36, 40). Although not providing any specific year, Plaintiff Holland testified that he worked on a New Year's Day and one Easter and that he has worked on the Fourth of July and Christmas Eve. (Tr. 6/25/14 at 15-16). Plaintiff Holland did not work Memorial Day, Labor Day, Thanksgiving, and Christmas Day. (Id. at 16-17). Plaintiff Holland did not work one week in September 2009, when the business was closed due to flooding.[5] (Id. at 17). He also did not work four days in January 2010 when the business was closed due to snow[6] and one week in January 2010 due to an eye injury. (Id. at 17, 22). Plaintiff testified that he did not work on the following days in 2010 due to attendance at plumbing school: October 16, 23 and 30; November 6, 13, 16, 20; and December 6. (Id. at 17).

Plaintiff Holland utilized a vehicle provided by Bynum & Sons Plumbing when working and drove that vehicle home in the evenings. (Id. at 49). He was compensated for his work on commission, approximately 25% of the amount billed to each customer. (Id. at 51). Before that commission was paid, the business deducted certain expenses, such as, the supplies or parts needed for the plumbing appointment, whether those supplies or parts were obtained from the business or had to be purchased off-site such as from Lowe's. (Id. at 51-52). Plaintiff Holland was not "paid back" for the cost of the supplies or parts used for a plumbing job. He received the percentage of the total bill charged the customer, which included the cost for those supplies and parts, as his commission. (Id. at 52). When asked "[w]hat other things... Bynum & Sons charge[d him] for before they paid you the money that showed up on a 1099[, ]" Plaintiff Holland listed these items: uniforms, gas, worker's compensation, liability insurance, automobile insurance, $145.00 per week for use of the vehicle, and tires.[7] (Id. at 53-54). Plaintiff also stated that, in addition to these "things" (that is, the items that were deducted by Bynum & Sons Plumbing before he received his compensation), he had other expenses which were identified as business expenses on his federal income tax returns, such as, gas for the vehicle[8] and repairs on the vehicle. (Id. at 53).

Plaintiff Holland identified for the record his Exhibit 1 which is a copy of selected pages from his 2008 federal tax return. (Tr. 6/23/14 at 41-43). The return was prepared by an accountant. (Id. at 43). On cross-examination, Plaintiff Holland was questioned about specific entries on the Profit and Loss From Business page (Exhibit 1, 08-1) and what expenses supported the entries. (Id. at 57-59). Plaintiff was not able to explain the entries, stating that he kept all of his receipts - "every receipt that I have ever - that I use when I am out in the field that I keep[, ]" and that he gives everything to his accountant to prepare the tax returns. (Id. at 58). Although Plaintiff Holland stated that he did not keep a daily calendar recording the dates that he worked for Bynum & Sons Plumbing, he reiterated that he "did keep all the paperwork." (Tr. 6/25/14 at 31).

Plaintiff identified his Exhibit 2 which is a copy of the 1099 for the year 2009 received from Bynum & Sons Plumbing and selected pages from his 2009 federal tax return which was prepared by an accountant. (Tr. 6/23/14 at 44-45). Plaintiff supplemented Exhibit 2 due to the fact that an amended return was filed, after an audit by the Internal Revenue Service, identified as Exhibit 2A.[9] (Tr. 6/25/14 at 5-10, 23-24).

Plaintiff also identified his Exhibit 3 which is a copy of the 1099 for the year 2010 received from the business and selected pages from his 2010 federal tax return which was prepared by an accountant. (Tr. 6/23/14 at 47-48). With respect to this tax return, Plaintiff Holland was also questioned on cross-examination about the amounts identified on the Profit and Loss From Business page ...


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