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Julian v. Swift Transportation Inc.

United States District Court, D. Arizona

December 27, 2019

Pamela Julian, Plaintiff,
v.
Swift Transportation Company Incorporated, et al., Defendants.

          ORDER

          HONORABLE ROLYN O. SILVER SENIOR UNITED STATES DISTRICT JUDGE

         Swift Transportation Company was entitled to deduct from Plaintiffs' pay no more than eight hours of time, per day, for time Plaintiffs were logged as “sleeper berth.” In theory, that legal ruling should have allowed the parties to calculate the amount of damages due each Plaintiff. Unfortunately, Swift was not able to produce complete and accurate time records that would allow for a simple calculation of damages. But Swift did produce partial records and those partial records were enough to shift the burden of proof to Swift to prove why the damages calculated under the partial records were inaccurate. Swift has not carried its burden, meaning Plaintiffs are entitled to an award of damages in the amount calculated by their expert. The parties' other disputes involving the compensability of the first day of orientation and additional uncompensated time in the sleeper berth must proceed to trial.

         BACKGROUND

         In prior orders, the Court concluded Plaintiffs were entitled to be paid for time they were logged as “sleeper berth” in excess of eight hours per day. After reaching that conclusion, the Court believed Plaintiffs likely could be awarded damages as a matter of law. After all, throughout this litigation Swift has repeatedly argued its time records accurately reflected the amount of time each plaintiff spent logged as “sleeper berth.” (See, e.g., Doc. 157 at 12). But when Plaintiffs filed their motion seeking damages based on Swift's own records, Swift's belief in the accuracy of its records evaporated. According to Swift, its records are not, in fact, reliable. Thus, Swift now claims its records are so incomplete and full of errors that they cannot be used to determine Plaintiffs' damages. While Swift argues the alleged deficiencies in the records means only a jury can determine the appropriate damages, that is not accurate.

         During discovery, Swift produced two types of records that are relevant for determining damages: 1) “DOT driver logs” and 2) “compensation data.” (Doc. 223 at 9). The “DOT driver logs” refer to the records kept by Plaintiffs to comply with Department of Transportation requirements. Those logs contained the following information for the time period from June 30, 2015 through August 28, 2017: date, driver ID, and a driver's status throughout each day (i.e., “driving, ” “off duty, ” “on duty, ” and “sleeper berth”). (Doc. 223-1 at 8). As for the “compensation data” Swift produced, those records contained the driver ID, hours worked, amount paid, and a description of the hours worked as either “on duty [driving]” or “on duty not [driving].” (Doc. 234-6 at 39). Swift was not able to produce complete DOT driver logs or “compensation data” for every Plaintiff.

         Beginning with the DOT drivers logs, Swift produced logs related to 8, 238 Plaintiffs. However, 10, 210 opt-in consent forms have been filed. (Doc. 237 at 12). The parties agree that some of those opt-in consent forms are duplicates but they disagree on the exact number. It is undisputed, however, that there are at least 9, 552 unique opt-in forms, meaning there are at least 9, 552 Plaintiffs. Given that number, and the DOT driver logs produced, Swift did not produce any data for 1, 314 (9, 552-8, 238) opt-in plaintiffs. In other words, Swift did not produce DOT driver logs for 13.7% of the collective.[1]

         As for the “compensation data, ” Swift was not able to produce anything close to comprehensive data. The DOT driver logs covered approximately 52, 541 employee workweeks but Swift was able to produce “compensation data” for less than half of those workweeks. (Doc. 237 at 4, 8). Moreover, the “compensation data” did not indicate the amount of time Plaintiffs spent in the sleeper berth. Given that the “compensation data” did not cover over half of the relevant time and contained no information regarding sleeper berth time, the “compensation data” is of very limited use for calculating the damages presently at issue. The DOT driver logs are the only realistic basis for calculating those damages and that is what Plaintiffs' expert primarily relied upon in reaching his conclusions.

         Plaintiffs retained an expert, David Breshears, to provide damages calculations.[2]Breshears used both the DOT driver logs and the “compensation data” to complete his calculations but the “compensation data” was only used to make a preliminary calculation regarding hourly rates. Starting with the “compensation data, ” Breshears calculated “a ‘driving' pay rate” as the amount paid under the “description of ‘D-On Duty Driv. Hrl'” divided by the hours under that description. Breshears then calculated “a ‘non-driving' pay rate” as the amount with an income description of “D-On Duty Not Drv” divided by the hours under that description. These two calculations gave Breshears hourly pay rates he then applied to the information contained in the DOT driver logs.

         Using the DOT driver logs, Breshears calculated each “employee's weekly total pay” as “(a) the driving hours in the log records . . . multiplied by the related driving pay rate . . . plus (b) the on duty hours in the log records multiplied by the related non-driving pay rate.” (Doc. 223-1 at 10). The sum of those two calculations was an individual's “weekly total pay.” Breshears then calculated each individual's “daily sleeper hours more than eight.” Breshears combined those sleeper hours with the “on duty hours” and the “driving hours” to get a total number of hours that should have been compensated. Finally, Breshears divided the “weekly total pay” by the total hours that should have been compensated and compared that to the amount the individual would have been paid if he had earned the federal minimum wage for all compensable time. An example using a particular driver illustrates each of Breshears' steps.

         Using the “compensation data, ” Breshears determined driver D354514 had a “driving pay rate” of $9.50 per hour and a “non-driving pay rate” of $7.25 per hour. Breshears then looked to the DOT driver logs for the week ending July 6, 2014. Those logs indicated D354514 had 50.67 hours for which he was in a status that required compensation. That is, the logs reflected D354514 logged 4.92 hours of “on duty” time and 45.75 hours of “driving time.” Applying the respective hourly rates to these hours (4.92 hours multiplied by $7.25 per hour and 45.75 multiplied by $9.50 per hour) resulted in D354514 being entitled to $470.28 based on the “on duty” and “driving time” reflected in the DOT driver logs. But the DOT driver logs also indicated that during this particular week, D354514 logged “26.83 daily sleeper hours more than eight per day.” Thus, Breshears added the 26.83 hours to the 50.67 hours to arrive at a total of 77.5 hours that should have been compensated. The total compensation D354514 had been entitled to receive under Swift's calculation was then divided by the total hours ($470.28 divided by 77.5 hours) to determine this individual had been paid an effective hourly rate of only $6.07 per hour. Using the federal minimum wage of $7.25 per hour, D354514 should have been paid $561.88 ($7.25 multiplied by 77.5). Thus, Breshears determined D354514 was entitled to $91.59 in additional wages ($561.88 minus $470.28).[3]

         Swift argues Breshears' calculations are inaccurate and unreliable. According to Swift, Breshears should have begun his analysis by looking to the “compensation data” to determine how much each driver was, in fact, paid. It is undisputed, however, that Swift was unable to produce “compensation data” for over half the workweeks at issue. Moreover, the “compensation data” did not contain information regarding the amount of sleeper berth hours in excess of eight each day. Thus, Swift's position that Breshears should have calculated damages by primarily looking to the “compensation data” is misguided. It simply was not possible for Breshears-or anyone else-to calculate damages in the manner suggested by Swift given Swift's failure to keep complete records.

         But even beyond attacking Breshears' basic steps, Swift argues Breshears' calculations were fatally flawed. Swift points to D354514 and argues the “compensation data” for the week ending July 6, 2014, shows D354514 was paid $568.29. Swift believes Breshears should have started with that total and then, together with the 77.5 hours calculated from the DOT driver logs, assessed whether D354514 was paid a sufficient hourly rate. Here, Swift's proposed calculation would result in an effective hourly rate of $7.33 per hour ($568.29 divided by 77.5 hours). Swift relies on this calculation to argue driver D354514 is not entitled to any damages as his effective hourly rate calculated in this manner exceeded the $7.25 minimum wage. Rather than identifying an error by Breshears, however, Swift's calculation suffers from a basic error of its own.

         According to the “compensation data” for the relevant week, D354514 was paid for 55.11 hours (8.52.6.72.17.35.75) that were logged as driving hours (i.e., “on duty driv”) and 6.17 hours (0.6.75.85.25.32.4) that were logged as on duty, not driving (i.e., “on duty not drv”). These two figures sum to 61.28 hours. The DOT driver logs, however, show only 50.67 compensable hours. In other words, the DOT driver logs and the “compensation data” reflect different totals of compensable hours. Using the higher total hours reflected in the “compensation data, ” and adding the 26.83 of sleeper berth hours reflected in the DOT driver logs, the total hours for which D354514 should have been compensated becomes 88.11 (61.28.83), not the 77.5 that Breshears calculated using the DOT driver logs. And dividing the total pay of $568.29 reflected in the “compensation data, ” by the 88.11 hours worked, results in D354514 receiving an effective hourly rate of $6.45 per hour. That is still less than the minimum wage, meaning even under Swift's approach of beginning with the “compensation data, ” D354514 would be entitled to $70.53. Accordingly, while complaining of alleged errors or inaccuracies in Breshears' work, Swift's own proposed calculations reflect a failure to include all compensable hours.

         Under Breshears' calculations for each of the opt-in Plaintiffs in the DOT driver logs, Swift owes those Plaintiffs a total of $6, 758, 478 for unpaid sleeper berth hours. This figure does not represent an extrapolation from a limited sample. Rather, this figure reflects Breshears' actual calculations for each Plaintiff in the DOT driver logs. As for the Plaintiffs not ...


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