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Tremore v. Jerry Bos Vending Service, Inc.

United States District Court, W.D. Michigan, Southern Division

April 30, 2019

MICHAEL TREMORE, Plaintiff,
v.
JERRY BOS VENDING SERVICE, INC., Defendant.

          OPINION

          Ray Kent, United States Magistrate Judge.

         Plaintiff Michael Tremore brought this action against defendant Jerry Bos Vending Service, Inc., claiming that defendant violated the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq., by failing to pay plaintiff wages and overtime. This matter is now before the Court on motions for summary judgment filed by plaintiff (ECF No. 27) and defendant (ECF No. 29).

         I. Plaintiff's claim

         Plaintiff set forth the following facts in his complaint. Defendant Jerry Bos Vending, Inc. (“Bos Vending”) employed plaintiff in June 2016. Compl. (ECF No. 1, PageID.2). “Tremore's primary function was to fill vending machines and collect money at Bos Vending accounts througout West Michigan.” Id. Tremore was initially paid hourly for his employment as a route driver. Id. at PageID.3. He worked overtime in June 2016 and was paid overtime. Id. On or about July 13, 2016, Bos Vending started to pay plaintiff a weekly salary of $800.00. Id. Plaintiff was the only route driver paid a salary. Id. After July 13, 2016, plaintiff no longer received overtime pay when he worked more than 40 hours per week and was improperly classified as an “exempt” employee from overtime. Id. Plaintiff was terminated on November 18, 2017. Id. at PageID.4.[1] The gist of plaintiff's claim is that defendant treated him as a salaried employee exempt from overtime pay, when he was actually just an hourly employee. Plaintiff seeks compensatory damages for wages, compensatory damages for unpaid overtime, liquidated damages, attorney fees, and injunctive relief.

         II. Legal Standard for summary judgment

         All defendants have moved for summary judgment. “The court shall grant summary judgment 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). Rule 56 further provides that a party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1).

         In Copeland v. Machulis, 57 F.3d 476 (6th Cir. 1995), the court set forth the parties' burden of proof in a motion for summary judgment:

The moving party bears the initial burden of establishing an absence of evidence to support the nonmoving party's case. Once the moving party has met its burden of production, the nonmoving party cannot rest on its pleadings, but must present significant probative evidence in support of the complaint to defeat the motion for summary judgment. The mere existence of a scintilla of evidence to support plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.

Copeland, 57 F.3d at 478-79 (citations omitted). “In deciding a motion for summary judgment, the court views the factual evidence and draws all reasonable inferences in favor of the nonmoving party.” McLean v. 988011 Ontario Ltd., 224 F.3d 797, 800 (6th Cir. 2000).

         III. Discussion

         The FLSA requires employers to pay overtime wages to nonexempt employees who work in excess of forty hours per week. 29 U.S.C. § 207(a)(1). The threshold question for the Court is whether plaintiff was exempt from the overtime provisions of the FLSA. For that reason, the Court will address defendant Bos Vending's motion for summary judgment, in which it contends that plaintiff was exempt from this requirement under ...


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