United States District Court, D. Colorado
THOMASZ SOBOLEWSKI, on behalf of himself and all similarly situated persons, Plaintiff,
BOSELLI & SONS, LLC, a Colorado limited liability company, BOSELLI INVESTMENTS LLC, a Colorado limited liability company, JAMES J. BOSELLI, DON A. BOSELLI, FRANCIS A. BOSELLI, and STEPHEN M. BOSELLI, Defendants.
MEMORANDUM OPINION AND ORDER
RAYMOND P. MOORE, UNITED STATES DISTRICT JUDGE.
Thomasz Sobolewski is a former employee who worked at
Defendants' McDonald's restaurants in Colorado.
Plaintiff seeks, on behalf of himself and as class
representative, damages against Defendants for alleged meal
and rest period violations. Defendants have filed two motions
for partial summary judgment seeking resolution of four
issues: (1) whether Colorado's Minimum Wage Order grants
Plaintiff a private right of action for violations of its
meal period and rest period requirements; (2) whether, based
on the undisputed facts, Plaintiff's claim for violation
of the Wage Order's meal period requirements fail as a
matter of law; (3) whether Plaintiff's breach of contract
claim must be dismissed for lack of consideration; and (4)
whether the statute of limitations provision contained in the
Wage Order applies to Plaintiff's claims for meal period
and rest period violations. (ECF Nos. 39 and 83.)
reasons stated below, the Court denies in part and grants in
part Defendants' first motion for partial summary
judgment. (ECF No. 39.) Defendants' second motion for
partial summary judgment is denied. (ECF No. 83.)
FACTUAL AND PROCEDURAL BACKGROUND
following are the undisputed and material facts taken from
the parties' statements of undisputed facts and
are the owners and operators of twelve McDonald's
restaurants in Colorado. (ECF No. 49-1, Defs.' Sep.
Statement of Undisputed Mat. Facts (“Defs.'
SUMF”), Defs.' SUMF ¶ 1.) Plaintiff worked at
least one of the locations. (Id.) Plaintiff's
Class and Collective Action Complaint alleges that
Defendants' violated federal law and Colorado law by:
“1) failing to ensure that employees received meal and
rest breaks during their shifts; and 2) deducting time from
employee pay for breaks that never were taken.” (ECF
No. 1 at ¶ 1.) Plaintiff asserts the following four
causes of action: (1) violation of the Fair Labor Standards
Act, 29 U.S.C. § 201, et seq.
(“FLSA”); (2) violation of the Colorado Wage
Claim Act, Colo. Rev. Stat. § 8-4-101, et seq.
(“CWCA”); (3) violation of the Colorado Minimum
Wage Act, Colo. Rev. Stat. § 8-6-101, et seq.
(“CMWA”), as implemented by the Colorado Minimum
Wage Order (“Wage Order”); and (4) breach of
contract. (See id.) Two motions for partial summary
judgment are before the Court.
[First] Motion for Partial Summary Judgment (the
“First Motion”) seeks dismissal of
Plaintiff's third claim under the Wage Order for meal
period and rest period violations. (ECF No. 39 at 2.) The
underlying facts supporting Plaintiff's third claim are
almost entirely undisputed. Defendants had a policy that
required its employees to clock in and out of a computer
system for 10-minute rest periods and 30-minute meal periods.
(ECF No. 49-1, Defs.' SUMF ¶¶ 2-4.) Employees
were required to punch in when they arrived for their shift,
punch out for their 30-minute unpaid meal periods, and then
punch back in to the system when they returned from their
30-minute meal period. (Id., Defs.' SUMF ¶
5.) The employees are paid based on the time punches recorded
by Defendants' computer system. (Id., Defs.'
SUMF ¶ 6.) The heart of Plaintiff's meal period
claim is that Defendants' management was very strict
about making sure that employees clocked back into the system
no later than 30 minutes after their lunch break started.
(Id., Defs.' SUMF ¶ 8.) As a result,
employees “often went to the timeclock to clock back in
a few minutes before 30 minutes had passed to make sure
[they] clocked in no late[r] than the 30 minute
deadline.” (Id., Defs.' SUMF ¶ 9.)
Stated differently: “Many employees just waited around
the timeclock until exactly 30 minutes had passed so they
could clock in exactly on time.” (Id.,
Defs.' SUMF ¶ 10.) Defendants' First Motion
argues that the Wage Order does not provide a private cause
of action for Plaintiff's alleged meal period and rest
period violations. (See ECF No. 39.) And, even if
Plaintiff may maintain a private right of action, no meal
period violation has occurred under these undisputed facts.
Second Motion for Partial Summary Judgment (the
“Second Motion”) does not rely on any additional
facts. (ECF No. 83.) Instead, the Second Motion seeks
resolution of two legal questions: (1) whether Plaintiff has
stated a valid breach of contract claim; and (2) assuming
that Plaintiff can maintain a private action under the Wage
Order, whether the statute of limitations provided in Section
15 the Wage Order applies to such a claim. (Id. at
1-2.) Plaintiff opposes the relief sought in both motions.
LEGAL STANDARD FOR SUMMARY JUDGMENT
judgment is appropriate only if there is no genuine dispute
of material fact and the moving party is entitled to judgment
as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Henderson v.
Inter-Chem Coal Co., Inc., 41 F.3d 567, 569- 70 (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 is
so one-sided that one party must prevail as a matter of law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
251-52 (1986); Stone v. Autoliv ASP, Inc., 210 F.3d
1132, 1136 (10th Cir. 2000); Carey v. United States
Postal Serv., 812 F.2d 621, 623 (10th Cir. 1987). Once
the moving party meets its initial burden of demonstrating an
absence of a genuine dispute of material fact, the burden
then shifts to the nonmoving party to demonstrate the
existence of a genuine dispute of material fact to be
resolved at trial. See 1-800-Contacts, Inc. v. Lens.com,
Inc., 722 F.3d 1229, 1242 (10th Cir. 2013) (citation
Court will consider statements of fact, or rebuttals thereto,
which are material and supported by competent evidence.
Fed.R.Civ.P. 56(c)(1)(A), 56(e)(2), 56(e)(3). Summary
judgment evidence need not be submitted in a form that would
be admissible at trial, but the content or substance of the
evidence must be admissible. Johnson v. Weld Cty.,
594 F.3d 1202, 1210 (10th Cir. 2010). Affidavits must be
based on personal knowledge and must set forth facts that
would be admissible at trial. Murray v. City of
Sapulpa, 45 F.3d 1417, 1422 (10th Cir. 1995) (quotations
and citation omitted). “Conclusory and self-serving
affidavits are not sufficient.” Id.
“[O]n a motion for summary judgment, it is the
responding party's burden to ensure that the factual
dispute is portrayed with particularity, without depending on
the trial court to conduct its own search of the
record.” Cross v. The Home Depot, 390 F.3d
1283, 1290 (10th Cir. 2004) (quotations and citation
omitted). The Court is “not obligated to comb the
record in order to make [a party's arguments].”
Mitchell v. City of Moore, Okla., 218 F.3d 1190,
1199 (10th Cir. 2000). The Court now addresses the motions.
Private Right of Action Under the Colorado Minimum Wage
alleges violations of the Colorado Minimum Wage Act, C.R.S.
§ 8-6-101, et seq., and the Colorado Wage Claim
Act, C.R.S. § 8-4-101, et. seq. These two acts
are implemented by Colorado Minimum Wage Orders. See,
e.g., Colo. Minimum Wage Order No. 34, 7 Colo. Code
Regs. § 1103-1 (effective January 1, 2018 through
December 31, 2018). The Colorado Department of Labor and
Employment is authorized to promulgate a new Wage Order each
year. C.R.S. Title 8, Articles 1, 4, 6, and 12; see
also Colo. Const. art. XVIII, § 15. Each Wage Order
supersedes the previous year's order, establishes a
minimum wage, and “regulates wages, hours, working
conditions and procedures for certain employers and employees
for work performed within the boundaries of the state of
Colorado.” Colo. Code Regs. § 1103-1:1.
“Section 1103-1:18. Recovery of Wages” states
that “[a]n employee receiving less than the legal
minimum wage applicable to such employee is entitled to
recover in a civil action the unpaid balance of the full
amount of such minimum wage, together with reasonable
attorney fees and court costs[.]” Colo. Code Regs.
first contend that “the only circumstance in which a
person may assert a private cause of action under the Wage
Order is where the ‘employee is receiving less than the
legal minimum wage.'” (ECF No. 39 at 6.) As
Defendants read the regulation, this means that Plaintiff
does not have a private right of action for violations of the
meal and rest break provisions contained in Sections 7 and
the Wage Order. (Id. at 8.) Plaintiff responds that
the meal and rest period violations resulted in him not being
paid the minimum wage for all of the hours he worked. (ECF
No. 45 at 6.) In other words, Plaintiff's claims fall
within the plain language of Section 18's authorization
of a private civil action for failure to pay the “legal
minimum wage.” (Id. at 6-8.)
and application of Colorado's Wage Order is governed by
Colorado law. Deherrera v. Decker Truck Line, Inc.,
820 F.3d 1147, 1160 (10th Cir. 2016) (citations omitted). And
because the term “legal minimum wage” is not
defined, the Court must “look to the plain meaning of
the language used, considered within the context of the
statute as a whole.” Id. “If a
statute's plain meaning and context still leave it
capable of being understood by reasonably well-informed
persons in two or more different senses, then-and only
then-do we look beyond that language for other evidence of
legislative intent and purpose, such as legislative history
or other rules of statutory construction.” Id.