Julio Beccerril v. Spartan Concrete Products LLC ( 2020 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 19-1379
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JULIO BECCERRIL; EVARISTO RODRIGUEZ,
Appellants
v.
SPARTAN CONCERTE PRODUCTS, LLC
______________
Appeal from the District Court
of the Virgin Islands
(D.C. No. 1-12-cv-00029)
District Judge: Hon. Anne E. Thompson
______________
Submitted Under Third Circuit L.A.R. 34.1(a)
December 12, 2019
______________
Before: SMITH, Chief Judge, McKEE, and SHWARTZ, Circuit Judges.
(Filed: January 27, 2020)
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OPINION
______________

This disposition is not an opinion of the full Court and under I.O.P. 5.7 does not
constitute binding precedent.
SHWARTZ, Circuit Judge.
Plaintiffs Julio Beccerril and Evaristo Rodriguez sued their former employer,
Spartan Concrete Products LLC (“Spartan”), for failing to pay them overtime wages in
violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201-219, and the
Virgin Islands Fair Labor Standards Act (“VIFLSA”), V.I. Code Ann. tit. 24, §§ 1-23,
and for wrongful termination in violation of the Virgin Islands Wrongful Discharge Act
(“WDA”), V.I. Code Ann. tit. 24, § 76. Because the District Court did not clearly err in
calculating Plaintiffs’ damages on their FLSA and VIFLSA claims and in entering
judgment for Spartan on Plaintiffs’ WDA claim, we will affirm.
I
A
Spartan produced, sold, and delivered ready mix concrete in St. Croix and St.
Thomas using dump truck drivers to transport materials such as sand and gravel and
concrete truck drivers to transport concrete. Spartan hired Beccerril and Rodriguez to
work as dump truck drivers and paid them $22.50 for each load of materials they
delivered, with each delivery taking about one-and-a-half hours to complete. When they
were not delivering loads, Plaintiffs performed general maintenance in Spartan’s concrete
yard for $14 per hour.
Spartan paid Plaintiffs each week by business check but did not keep precise
records of the hours they worked. Instead, tickets listing the loads they carried were used
to track their deliveries. Spartan’s trucking invoices also referenced tickets for deliveries
completed and showed hours worked each day by each Plaintiff for an eleven-week
2
period for which Spartan had records for daily work. Maintenance hours worked were
tracked in logbooks. From the invoices, tickets, logbooks, and Plaintiffs’ paycheck
stubs,1 Spartan created a spreadsheet reflecting Plaintiffs’ work and pay by the week.2
Although not reflected in the records, Plaintiffs testified that they worked eight regular
hours and four overtime hours, six days per week. Beccerril specifically testified that he
worked twenty-four to twenty-five hours of overtime each week for which he did not
receive overtime pay.
In June 2011, Spartan terminated Plaintiffs. In their termination letters, Spartan
informed Plaintiffs that it was “reduc[ing] its work force and subcontractor services”
“[d]ue to economic difficulties and high overhead costs.”3 J.A. 421-22. Witnesses
testified that Spartan lacked work requiring dump trucks, struggled to pay its bills, and
had net income losses in both 2010 and 2011 of over $1.6 million. Spartan closed its St.
Thomas branch in December 2013 and its St. Croix branch in November 2014.
1
Plaintiffs’ 1099 tax forms for 2010 and 2011 corroborate the pay amounts listed
on the spreadsheets.
2
Beccerril was employed from January 22, 2010 to June 3, 2011 (71 weeks) and
Rodriguez was employed from November 2010 to June 3, 2011 (28 weeks). In their
reply, however, Plaintiffs’ proposed calculation of damages for Beccerril assumes a start
date of January 2009. Plaintiffs did not raise this date in their opening brief, so this
argument is waived. See Garza v. Citigroup Inc., 881 F.3d 277, 284-85 (3d Cir. 2018)
(“[W]here an issue is raised for the first time in a reply brief, we deem it insufficiently
preserved for review before this court.” (quoting Kost v. Kozakiewicz, 1 F.3d 176, 182
(3d Cir. 1993))). In any event, the evidentiary basis for this date is unclear.
3
Beccerril also testified that around this time, Spartan dispatcher, Halvor Berg,
told him that Spartan general manager, Rodger Bressi, had received a complaint that
Beccerril was speeding and did not want Beccerril driving anymore.
3
Beccerril testified, however, that Spartan was “[v]ery, very busy,” J.A. 90, that he
worked until 10:00 p.m. the night before his termination and, even after his termination,
he saw Spartan dump trucks being driven. Rodriguez echoed that Spartan “always was
busy.” J.A. 178.
B
Plaintiffs sued Spartan in the District Court of the Virgin Islands for, among other
things, unpaid overtime wages in violation of the FLSA and the VIFLSA and wrongful
termination in violation of the WDA. After a bench trial, the District Court granted
judgment for Plaintiffs on their wage claims and for Spartan on their discharge claim.
Rodriguez v. Spartan Concrete Prods., LLC, Civ. No. 12-29, 2019 WL 215580, at *11
(D.V.I. Jan. 16, 2019). The Court held: (1) Plaintiffs were employees, not independent
contractors, and were entitled to overtime pay, id. at *4-6; (2) Spartan owed Beccerril
$2,005.76 and Rodriguez $1,062.47 under the FLSA for hours worked beyond a forty-
hour week, id. at *8; (3) Spartan owed Beccerril $636.83 and Rodriguez $147.89 under
the VIFLSA for hours worked beyond an eight-hour workday, id. at *9; and (4) Spartan
was not liable for wrongful discharge under the WDA because it proved that Plaintiffs’
4
termination was due to its economic hardship, id. at *10. Plaintiffs appeal the Court’s
damages calculation and conclusion that they were not wrongly terminated.
II4
A
We first address Plaintiffs’ challenge to the FLSA award. For FLSA claims, the
employee ordinarily bears “the burden of proving that he performed work for which he
was not properly compensated.” Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680,
687 (1946), superseded on other grounds, Portal-to-Portal Act of 1947, 29 U.S.C. §§ 251-
262, as recognized by IBP, Inc. v. Alvarez, 546 U.S. 21, 25-26 (2005). This burden is
harder to meet where an employer has failed to keep adequate records of the “wages,
hours, and other conditions and practices” of its employees under 29 U.S.C. § 211(c).
Martin v. Selker Bros., Inc., 949 F.2d 1286, 1296-97 (3d Cir. 1991). When the
employer’s records are deficient, the employee may “submit sufficient evidence from
4
The District Court had jurisdiction under 28 U.S.C. § 1331 and 48 U.S.C.
§ 1612. We have jurisdiction under 28 U.S.C. § 1291.
“When reviewing a judgment entered after a bench trial, we exercise plenary
review over the District Court’s conclusions of law and review the District Court’s
findings of fact for clear error.” CG, 734 F.3d at 234 (citation omitted). “The factual
findings underlying the district court’s computation and award of back wages are subject
to the clearly erroneous standard.” Martin v. Selker Bros., Inc., 949 F.2d 1286, 1292 (3d
Cir. 1991). A finding of fact is clearly erroneous where “although there is evidence to
support it, the reviewing court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.” Anderson v. City of Bessemer City, 470
U.S. 564, 573 (1985) (internal quotation marks and citation omitted). “Where there are
two permissible views of the evidence, the factfinder’s choice between them cannot be
clearly erroneous.” Id. at 574 (citations omitted).
5
which violations of the Act and the amount of an award may be reasonably inferred.” Id.
at 1297.
While compensation calculations featuring “imprecision[s]” arising from
recordkeeping failures do not defeat recovery, id., calculations based on “mere
speculation” do not provide a basis for relief, Rosano v. Township of Teaneck, 754 F.3d
177, 189 (3d Cir. 2014) (citation omitted). If the employee produces evidence from
which a fact finder may reasonably infer the amounts owed to the employee, the burden
shifts to the employer to “come forward with evidence of the precise amount of work
performed or with evidence to negative the reasonableness of the inference to be drawn
from the employee’s evidence.” Martin, 949 F.2d at 1297 (quoting Mt. Clemens, 328
U.S. at 687-88).
Plaintiffs do not challenge the method used to calculate damages. Rather, they
contend that the District Court erred in relying on Spartan’s spreadsheet rather than their
testimony that they worked twenty-four to twenty-five overtime hours per week. The
Court did not err because Spartan’s spreadsheet “negat[ed] the reasonableness of the
inference to be drawn from” Plaintiffs’ testimony. Id. (quoting Mt. Clemens, 328 U.S. at
687-88). While the spreadsheet does not specify the exact number of hours worked each
week,5 other evidence, including Plaintiffs’ testimony, provided a basis for the Court to
conclude that each delivery took one-and-a-half hours to complete, and documents
showed the number of loads each Plaintiff carried. From there, the Court could estimate
5
Instead, it summarized the number of loads and hourly maintenance work done.
6
that Plaintiffs worked over forty hours some weeks, but not every week.6 Relatedly, the
spreadsheet showed that Plaintiffs’ work varied, and testimony corroborated that they did
not work more than forty hours every week. Thus, although Plaintiffs testified that they
each worked twenty-four to twenty-five hours over forty hours each week, the Court did
not err in concluding that Spartan’s evidence negated any reasonable inference that they
regularly worked that amount of overtime.7
The District Court also did not clearly err in its calculation of overtime damages
under the VIFLSA. The VIFLSA is analogous to the FLSA, Amalgamated Workers
Union of V.I. v. Hess Oil V.I. Corp., 478 F.2d 540, 545 (3d Cir. 1973), but requires
overtime pay in more circumstances than the FLSA. The VIFLSA requires employers to
pay their employees an overtime rate of one and one-half times the regular rate for all
work performed over forty hours in a week and work performed “in excess of 8 hours in
6
Although Plaintiffs were paid by the load (rather than by the hour) for some
work, the parties agree that the District Court properly found that their “regular rate” of
pay was $15 per hour. See 29 C.F.R. § 778.109. The parties also agree that the
appropriate overtime rate is $22.50 per hour (one and one-half times the regular rate).
See 29 U.S.C. § 207(a)(1) (requiring that “for a workweek longer than forty hours” an
employee who works “in excess of” forty hours must be compensated “at a rate not less
than one and one-half times the regular rate at which he is employed”).
7
Plaintiffs argue that the District Court erred in relying on the spreadsheet because
it did not include all tickets and time logged. Beyond their own testimony, the only
support for this contention is Spartan general manager Dion Alibocas’s statement that he
“reviewed what he found” but “d[id] not know” if it was every ticket. J.A. 324-25. That
said, neither Plaintiff identified any missing loads. The Court therefore did not clearly err
in basing its damages award on the spreadsheet “even though the result was approximate”
because it was a “reasonable inference[] based on the evidence.” Martin, 949 F.2d at
1297.
7
a single workday, whichever excess is calculated to give the employee the greatest
compensation.” V.I. Code Ann. tit. 24, § 20(a).
Because Spartan’s spreadsheet only summarizes work by the week, the District
Court also considered Spartan’s trucking invoices, which showed loads completed and
hours Plaintiffs worked each day in an eleven-week period. For VIFLSA purposes, the
Court calculated the amount of overtime pay to which Plaintiffs were entitled for each
hour worked over eight hours for the eleven weeks for which Spartan had records of
Plaintiffs’ daily work, not including weeks Plaintiffs worked over forty hours (since they
were already receiving overtime pay for those hours under the FLSA). The Court then
divided this amount by eleven weeks to come to an average amount Spartan owed
Plaintiffs per week for each of the eleven weeks. It then multiplied this amount by the
number of weeks Plaintiffs worked for Spartan.
The District Court did not clearly err in awarding these amounts to Plaintiffs “even
though the result was approximate” since its calculation reflected a “reasonable
inference[] based on the evidence.” Martin, 949 F.2d at 1297. Because Plaintiffs’
damages estimation was limited to their own testimony, lacked corroboration, and failed
to “account for the day-to-day differences in [employee] scheduling,” the Court properly
declined to adopt it. Rosano, 754 F.3d at 189 (alteration omitted). Moreover, the
spreadsheet and invoices, though perhaps imprecise, rebut Plaintiffs’ testimony. As a
result, Plaintiffs’ calculations constituted “mere speculation, and are insufficient to
8
support the requisite inference necessary to meet their burden.” Id. Thus, the Court did
not clearly err in its calculation of damages.8
B
The District Court also properly determined that Spartan did not violate the WDA.
Under the WDA, V.I. Code Ann. tit. 24, § 76, “an employer can lawfully fire an
employee for one of nine enumerated reasons,” Maynard v. Rivera, 675 F.3d 225, 228
(3d Cir. 2012), or “as a result of a general cutback in the work force due to economic
hardship,” § 76(c). The WDA abrogates the at-will employment doctrine and creates “a
presumption . . . ‘that an employee has been wrongfully discharged if discharged for any
8
In their reply brief, Plaintiffs also contend that the District Court should have
calculated overtime by multiplying hours worked over forty by 1.5 times the hourly rate
($22.50) and that they are entitled to liquidated damages because Spartan willfully
violated the FLSA. Plaintiffs did not raise these arguments in their opening brief, so they
are waived. See Garza, 881 F.3d at 284-85.
In any event, the Court properly calculated damages for unpaid overtime by
multiplying weekly hours worked over forty by $7.50, the amount owed to Plaintiffs over
and above the regular rate they already received for these hours. Plaintiffs point to no
evidence showing that they were not paid at all for overtime hours. Instead, Plaintiffs
testified that they were paid $22.50 per load and $14 per hour of maintenance work even
if they had exceeded forty hours. Since Spartan is liable to Plaintiffs “in the amount of . .
. their unpaid overtime compensation,” 29 U.S.C. § 216(b), and Plaintiffs were paid a
regular rate for hours over forty, “the ‘loss suffered’ is the 50% premium for their
overtime hours,” that is, $7.50, Desmond v. PNGI Charles Town Gambling, L.L.C., 630
F.3d 351, 357 (4th Cir. 2011); see also, e.g., Chavez v. City of Albuquerque, 630 F.3d
1300, 1313 (10th Cir. 2011); Urnikis-Negro v. Am. Family Prop. Servs., 616 F.3d 665,
679-80 (7th Cir. 2010). Here, they received the regular rate, and the Court’s calculation
properly compensates them for the premium owed for their overtime over and above the
regular rate they received.
9
reason other than those listed’” in the statute. Rennie v. Hess Oil V.I. Corp., 62 V.I. 529,
542-43 (2015) (omission in original) (quoting Maynard, 675 F.3d at 228).
To establish a claim under § 76, an employee must prove the “defendant was his
employer and wrongfully discharged him.” See id. at 546 n.12. The burden of
persuasion then shifts to the employer who must prove “by a preponderance of the
evidence that the employee was discharged for a permissible reason under the WDA.”
Gumbs-Heyliger v. CMW & Assocs. Corp., 73 F. Supp. 3d 617, 623 (D.V.I. 2014); Pedro
v. Ranger Am. of the V.I., Inc., 63 V.I. 511, 518 (2015) (holding that employer bears the
burden to prove one or more of “the permissible grounds for discharge set forth in [V.I.
Code Ann. tit. 24, § 76(a)-(c) as] affirmative defenses” (quoting Rennie, 62 V.I. at 543)).
One permissible reason for termination is “economic hardship.” § 76(c). To show
economic hardship, “an employer must show some meaningful evidence of its financial
condition” and “provide evidence linking economic hardship to Plaintiffs’ termination.”
Bellot v. Cardow, Inc., No. ST-2012-CV-0000297, 2017 WL 1738265, at *4 (V.I. Super.
Ct. May 1, 2017) (citation omitted). “Mere assertions that business was slow, without
more, do not constitute economic hardship.” Id. (citation omitted).
Spartan produced sufficient evidence to establish that Plaintiffs were terminated
because of its financial hardship. Spartan’s Annual Report shows that it operated at a
loss in both 2010 and 2011 of over $1.6 million. Witnesses also testified that “[f]inances
were very scarce,” J.A. 220, the business was slow and had too many employees, and
there was “not enough work for . . . everyday use” of the dump trucks, J.A. 230-31. In
that regard, Spartan concluded that it could operate without dump truck drivers because
10
concrete drivers could drive both the concrete and dump trucks while “the dump truck
drivers could not.” J.A. 215-16. For these reasons, management decided to reduce the
workforce. Spartan eventually closed both its St. Thomas and St. Croix branches. From
this evidence, the District Court appropriately concluded that Spartan terminated
Plaintiffs because of financial hardship and thus did not violate the WDA.
IV
For the foregoing reasons, we will affirm the judgment of the District Court.
11