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Lozoya v. Allphase Landscape Construction, Inc.

United States District Court, D. Colorado

April 15, 2015

JOSÉ LOZOYA; ANTONIO MALDONADO; and MARIO PEÑA, on behalf of themselves, individually, and on behalf of those similarly situated, Plaintiffs,
ALLPHASE LANDSCAPE CONSTRUCTION, INC., a Colorado corporation, doing business as ALL PHASE LANDSCAPE; DONALD TROY TINBERG; and MARK FISHER, in their individual and corporate capacities, Defendants.


JOHN L. KANE, Senior District Judge.

Before me are the parties' cross motions for partial summary judgment on certain issues (Docs. 104, 112, 114 and 105, 111, 113). For the reasons that follow, Defendants' motion is GRANTED in part and DENIED in part, and Plaintiffs' Motion is DENIED.


The Plaintiffs in the action have brought claims against their former employer, AllPhase Landscape Construction ("AllPhase" or "Defendant") and two of its executives under the Federal Labor Standards Act ("FLSA") and Colorado's minimum wage law, challenging certain of Defendant's pay policies and practices, including its policy of not paying employees for time spent traveling to job sites ("windshield time") and of taking deductions from wages for equipment damaged on the job. The discovery cut-off was August 14, 2014, and both parties have now fully briefed cross-motions for partial summary judgment on certain issues (Docs. 104, 112, 114 and 105, 111, 113).

Summary Judgment Standard

Summary judgment is appropriate only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem Coal Co., Inc., 41 F.3d 567, 569 (10th Cir.1994). Whether there is a genuine dispute as to a material fact depends upon whether the evidence presents a sufficient disagreement to require submission to a jury or conversely, is so one-sided that one party must prevail as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986); Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136 (10th Cir. 2000); Carey v. U.S. Postal Service, 812 F.2d 621, 623 (10th Cir.1987). A fact is "material" if it pertains to an element of a claim or defense; a factual dispute is "genuine" if the evidence is so contradictory that if the matter went to trial, a reasonable party could return a verdict for either party. Anderson, 477 U.S. at 248. The Court must resolve factual ambiguities against the moving party, thus favoring the right to a trial. Quaker State Minit-Lube, Inc. v. Fireman's Fund Ins. Co., 52 F.3d 1522, 1527 (10th Cir.1995); Houston v. Nat'l General Ins. Co., 817 F.2d 83, 85 (10th Cir.1987).

Defendants' Motion for Partial Summary Judgment

Defendants seek partial summary judgment on two issues: (1) whether Plaintiffs can recover penalties or liquidated damages with respect to their state law claims under Colo. Rev. Stat. § 109(3)(b), and (2) whether Plaintiffs can recover damages for allegedly missed rest periods required by the Minimum Wage Order.

i. Penalties Under the Colorado Wage Act

The Colorado Wage Act ("CWA") provides that if an employee is terminated "by volition of the employer, " the employee thereafter makes a written demand for wages due, and the employer does not pay those wages within 14 days, "the employer shall be liable to the employee for the wages or compensation, and a penalty" calculated under a certain formula. C.R.S. § 8-4-109(3)(b). An employee who has not made a written demand for the payment within sixty days after the date of separation "shall not be entitled to any such penalty under this subsection (3)." C.R.S. § 8-4-109(3)(d).[1] Plaintiffs argue that Section 109's written demand requirement does not apply to current employees, and that Plaintiff Lozoya's complaint to the Colorado Department of Labor ("CDOL") in December of 2011 (while he was still an employee) satisfies the written demand requirement on behalf of the class such that class members are entitled to statutory penalties. Doc. 111 at 11-14. Defendant argues that the penalty provision does not apply to demands made during employment, and that Plaintiff Lozoya's complaint to the CDOL concerned only travel time. Doc. 105 at 9-10.

The CWA contemplates payment after termination of wages that are not in dispute. See CWA 8-4-109(1)(a) (providing that wages "earned, vested, determinable, and unpaid at the time of such discharge [are] due and payable immediately"); Summers v. Texas de Brazil (Denver) Corp., No. 09CV3147, 2011 WL 1832334, *4 (D. Colo. May 11, 2011) ("Colorado courts have held that penalties assessable under § 8-4-109(3) are for wages that are undisputed but unpaid.'"). The only written demand in this case was made while Plaintiff Lozoya was still an employee, and the wages sought are not "undisputed and unpaid, " but rather compensation for Defendant's "windshield time" policy and other practices, which were and continue to be an area of factual and legal dispute between the parties. Accordingly, I find that statutory penalties are not available, and grant this portion of Defendants' motion for summary judgment.

ii. Compensation for Rest Periods

Plaintiffs seek straight or overtime pay for the rest periods required by the Minimum Wage Order that Defendant allegedly did not allow them to take. Defendants argue that because Plaintiffs were paid for all the time that they actually worked, they are not entitled to any further monetary damages for rest periods, even if they were not taken. Doc. 105 at 10-12. Defendants also rely on a redacted letter from a "Compliance Officer" at the CDOL indicating that "[i]t is the position of this office... [that] unless the employee is docked for [rest] breaks not allowed, there is no monetary recovery" available for missed rest periods. Ex. G to Doc 105. Plaintiffs argue that the Court owes no deference to a letter written by a "Compliance Officer" under unspecified circumstances and that being forced to work through required rest breaks means in effect that Plaintiffs were not compensated for that time. Doc. 111 at 16-19. The Colorado Wage Claim Act allows an employee "to sue his or her former employer for earned wages and other compensation the employer has refused to pay." Lester v. Career Bldg. Acad., 338 P.3d 1054, 1058 (Colo.App.2014); see also Colo. Rev. Stat. § 8-4-109. Although there do not appear to be any state or federal Colorado decisions on point, the idea that missed rest periods can constitute "wages or compensation" has been accepted by other courts. See, e.g., Wingert v. Yellow Freight Systems, Inc., 50 P.3d 256, 260 (Wash. 2002) (rejecting argument that failure ...

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