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Wagner v. ABW Legacy Corp. Inc.

United States District Court, D. Arizona

March 8, 2016

Michael Wagner, Plaintiff,
ABW Legacy Corp, Inc., et al, Defendants.


John Z. Boyle United States Magistrate Judge

Pending before the Court are Defendant’s Motion to Exclude Plaintiff’s Expert Brian H. Kleiner (Doc. 73), Defendant’s Motion to Exclude Plaintiff’s Expert Colin Haddock (Doc. 74), Plaintiff’s Motion to Strike (Doc. 88), and Defendant’s Motion for Summary Judgment (Doc. 71). For the reasons below, the Court will grant Defendant’s Motion to Exclude Dr. Kleiner’s testimony, grant in part and deny in part Defendant’s Motion to Exclude Mr. Haddock’s testimony, deny Plaintiff’s Motion to Strike, and deny Defendant’s Motion for Summary Judgment.[1]

I. Background

a. Plaintiff’s Employment With Defendant

Defendant provides collision repairs to the public. (Doc. 72 ¶ 1.) Plaintiff began working for Defendant as a mechanic in February 2007. (Id. ¶ 31.) During Plaintiff’s employment, Defendant paid him a flag rate per assigned flag hour, with a set number of assigned flag hours per job. (Id. ¶¶ 33, 36-37.) The insurance companies set the amounts they would pay Defendant for repairs on vehicles that had been in collisions. (Id. ¶ 36.) The amount Plaintiff earned would increase the faster and more efficiently he completed jobs as compared to the insurance companies’ guidelines. (Id.) Payment was made to Plaintiff upon the completion of the job and delivery of the repaired vehicle. Therefore, payment could be paid in a different pay period than the one in which Plaintiff performed the work, and Plaintiff’s pay fluctuated from week to week. (Id. ¶ 19.)

When he began his employment, Plaintiff received a flag rate of $21 per flag hour. (Id. ¶¶ 31, 33.) In July 2010, Defendant raised Plaintiff’s flag rate to $23 per flag hour for mechanical work. (Id. ¶ 39.) Around that time, Plaintiff also began to perform body technician work in addition to mechanic work, for which he was paid a $17.50 flag rate. (Id.) It is undisputed that the chart Bates numbered ABW 1214, and found at Doc. 72-7 at 83, contains Plaintiff’s total hours worked per week as reflected in Defendant’s time clock records, and Plaintiff’s gross earnings per pay period (bi-weekly in 2010 and weekly in 2011) as reflected in Defendant’s payroll records, for the period of June 2010 through October 2011. (Id. ¶ 30; Doc. 83 at 7.) It is also undisputed that in 2011, the Arizona minimum wage was $7.35 and, therefore, $11.025 is 1.5 times the state minimum wage in effect at that time. (Doc. 72 ¶ 27; Doc. 83 at 7.)

On August 18, 2011, Plaintiff suffered an injury while at work. (Doc. 72 ¶ 43.) Plaintiff spoke with a representative from Defendant’s worker’s compensation carrier shortly after his injury, and subsequently received worker’s compensation benefits. (Id. ¶ 44.) Plaintiff’s employment with Defendant ended on July 25, 2012. (Id. ¶¶ 105-06.) The parties dispute the circumstances surrounding and reasons for the end of Plaintiff’s employment. (Docs. 72, 83.) Plaintiff asserts Defendant terminated his employment in retaliation for filing a worker’s compensation claim, in violation of the Arizona Employment Protection Act (AEPA), A.R.S. § 23-1501(3)(c)(iii). (Doc. 82 at 2-3.) Defendant asserts that it did not terminate Plaintiff’s employment; rather, Plaintiff abandoned his position by failing to communicate his intent to return to work. (Doc. 71 at 4-8.) Plaintiff further asserts claims against Defendant for failure to pay Plaintiff the required minimum wage pursuant to the Arizona Minimum Wage Act (AMWA), A.R.S. § 23-363, and failure to pay Plaintiff overtime pursuant to the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 206, 207. (Doc. 82 at 12.) Defendant asserts that Plaintiff was exempt under the FLSA, and Defendant paid Plaintiff all wages owed to him. (Doc. 71 at 10-17.)

b. Dr. Kleiner’s Report

On January 26, 2015, Dr. Kleiner, a human resources expert disclosed by Plaintiff, issued his Report. (Doc. 73-1 at 60-72.) Dr. Kleiner asserts that he relied on the following data in forming the opinions in his Report: (1) transcripts of the depositions of Plaintiff, Nelly Diaz, Sean Emile St. Cyr, and Christopher Parker; (2) notes created by Plaintiff’s attorney, including a legal analysis, witnesses, a chronology, documentation regarding attempts to communicate with Plaintiff by Defendant, and “Documented Ulterior Motives for Termination”; (3) numerous exhibits to Ms. Diaz’s deposition; (4) a Technical Assistance Manual of the Employment Provisions (Title 1) of the Americans with Disabilities Act, by the EEOC, from January 1992; and (5) a 2010 publication titled “Helping Injured Employees Return to Work.” (Id. at 65-66.)

Dr. Kleiner opines that “[t]he ‘return to work’ practices followed by [Defendant] in relation to [Plaintiff] were not consistent with the standard of care of appropriate human resource management practice” in the following three ways: (1) Defendant “did not adequately develop and formalize their policies and procedures concerning their return-to-work process and train their personnel, especially [Plaintiff], on them”; (2) “[a]s a result, their interactive process with [Plaintiff] was inadequate; and they never selected and made an offer of reasonable accommodation to him that was consistent with his limitations”; and (3) Defendant “terminated [Plaintiff’s employment] without adequate justification after he properly complied with their latest request of him to call them back if he was interested in continuing his employment with them.” (Id. at 71-72.)

Dr. Kleiner states in his Report that the applicable “standard of care”[2] relevant to his analysis is provided by the Equal Employment Opportunity Commission (EEOC) and consists of the following steps:

1. “Look at the particular job involved” and “[d]etermine its purpose and its essential functions.”
2. “Consult with the individual with a disability to find out his or her specific physical or mental abilities and limitations as they relate to the essential job function. Identify the barriers to job performance and assess how these barriers could be overcome with an accommodation.”
3. “In consultation with the individual, identify potential accommodations and assess how effective each would be in enabling the individual to perform essential job functions.”
4. “If there are several effective accommodations that would provide an equal employment opportunity, consider the preference of the individual with a disability and select the accommodation that best serves the need of the individual and the employer.”

(Id. at 66-67.)[3]

In support of his opinions, Dr. Kleiner cites to the EEOC standard of care as detailed above, and to his summary of selected portions of testimony by Plaintiff, Mr. St. Cyr, and Ms. Diaz during their depositions. (Id. at 67-71.) Outside of this summary, Dr. Kleiner provides no analysis regarding his opinions or any discussion of his methodology in reaching them.

c. Mr. Haddock’s Reports

Plaintiff also retained a damages expert, Mr. Haddock, to do the following: (1) to determine Plaintiff’s “effective regular hourly rate of pay” and compare that rate to the Arizona minimum wage per hour then in effect, and to calculate any shortfall; (2) to determine whether Plaintiff was paid 1.5 times his regular pay for overtime hours worked per week, and the amount of any overtime owed; and (3) to project Plaintiff’s earnings if he had continued to work for Defendant after his injury, and to calculate the amount of Plaintiff’s economic loss resulting from the termination of Plaintiff’s employment. (Doc. 79-1 at 3.)

On December 31, 2014, Mr. Haddock issued a Report regarding his analysis and findings. (Id. at 3-39.) In conducting his analysis, Mr. Haddock relied on the following data: (1) a summary of gross pay and hours worked; (2) copies of pay stubs for each pay period; (3) time records covering the period from June 25, 2010 to August 18, 2011; (4) Flag Pay Reports covering most, but not all, of the pay periods from July 30, 2010 to January 23, 2011; (5) copies of offer letters from Defendant to Plaintiff after his injury; (6) Reports regarding worker’s compensation insurance payments; and (7) documents from O’Reilly’s Automotive Stores, Inc., including pay stubs and an IRS W-2 form reporting wages paid to Plaintiff. (Id. at 4.)

In his Report, Mr. Haddock described the calculations he conducted regarding the minimum wage and overtime wages owed to Plaintiff, as well as Plaintiff’s projected wages loss had he returned to work for Defendant on May 29, 2012, and Plaintiff’s economic loss resulting from his termination of employment. (Id. at 4-12.) To calculate Plaintiff’s “effective hourly rate of pay, ” Mr. Haddock, relying on data provided by Defendant, divided the gross pay in each period by the number of regular hours worked, plus the number of overtime hours worked multiplied by 1.5. He then compared the effective hourly rates earned during each pay period with the Arizona minimum wage then in effect. (Id. at 7.) To determine the amount of overtime wages owed, Mr. Haddock calculated an average of the two flag rates Plaintiff was paid for mechanic and body repair work per flag hour (not hour worked), weighted the average to reflect the number of hours worked in each category of work, and where Plaintiff worked in excess of 40 hours a week, he calculated the overtime premium as 50% of the weighted average rate of pay. (Id. at 9.) To calculate Plaintiff’s projected earning loss and post-termination economic loss, Mr. Haddock calculated the lost wages based on the flag rate stated in Defendant’s May 22, 2012 letter, assumed Plaintiff would work 45 hours per week, and subtracted other earnings Plaintiff received from O’Reilly’s Automotive Stores, Inc., as well as some cash earnings Plaintiff identified. (Id. at 9-12.)

Importantly, after comparing the flag hours assigned to Plaintiff’s work with Plaintiff’s actual hours worked, Mr. Haddock concluded that Plaintiff “frequently performed more efficiently than the standards.” (Id. at 7.) In support of this conclusion, Mr. Haddock calculated that “in the period June 2010 to August 2011, [Plaintiff] completed work in 237 hours less than the standards.” (Id.)

Ultimately, based on this analysis, Mr. Haddock concluded the following:

1. Wagner was not paid at least the Arizona minimum wage for 3 pay periods. The shortfall in wages was $ 288.81.
2. Wagner appears not to have been paid for at least 67 hours worked. At his weighted average pay rate, he should have be[e]n paid $1, 343.01 for these hours.
3. Wagner was not paid 1.5 times his normal pay for overtime hours, and the shortfall is $4, 044.87.
4. Wagner arrived for work on May 29, 2012 as instructed, yet he was sent home, and continued to receive worker’s compensation payments, which were lower than the amount he would have earned from working at ABW. The difference was $1374.66 based on the May 22, 2012 return to work letter (Bates# ABW 0097), or $979.79 based on the weighted average pay rate.
5. Wagner suffered economic loss in the period following his termination. Four calculations of his loss up to November 30, 2014 have been made, as follows:
• Based on the May 22, 2012 return to work letter, $127, 688.15
• Based on the May 22, 2012 return to work letter, plus raises, $130, 853.01
• Based on his weighted average hourly rate $109, 636.91
• Based on the weighted average hourly rate, plus ...

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