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Sobolewski v. Boselli & Sons, LLC

United States District Court, D. Colorado

September 21, 2018

THOMASZ SOBOLEWSKI, on behalf of himself and all similarly situated persons, Plaintiff,
v.
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.

         Plaintiff 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.)

         For the 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.)

         I. FACTUAL AND PROCEDURAL BACKGROUND

         The following are the undisputed and material facts taken from the parties' statements of undisputed facts and accompanying exhibits.

         Defendants are the owners and operators of twelve McDonald's restaurants in Colorado.[1] (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.

         Defendants' [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. (Id.)

         Defendants' 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.

         II. LEGAL STANDARD FOR SUMMARY JUDGMENT

         Summary 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 omitted).

         The 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.

         III. ANALYSIS

         A. Private Right of Action Under the Colorado Minimum Wage Order

         Plaintiff 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. § 1103-1:18.

         Defendants 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 8[2] of 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.)

         Interpretation 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. ...


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