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Flecha v. Metal Systems, LLC

United States District Court, W.D. Wisconsin

October 16, 2017




         Plaintiffs Joshua Flecha and Luis Acevedo brought this putative class and collective action on behalf of themselves and other similarly situated individuals and employees of defendants Metal Systems, LLC and Pioneer Roofing, LLC. According to plaintiffs, defendants failed to compensate them for certain work, failed to compute their overtime pay properly and failed to pay them prevailing wages in violation of the Fair Labor Standards Act, 29 U.S.C. §§ 201-219, and Wisconsin state law.

         Now before the court is defendant Pioneer Roofing, LLC's motion for summary judgment, dkt. #30, as well as plaintiffs' motion for leave to file a sur-reply brief in opposition, dkt. #55. Although sur-replies are disfavored as a general rule and some of the contentions in plaintiffs' motion are questionable, I will consider their additional brief, dkt. #55-1, because plaintiffs are entitled to respond to some of the arguments that were not raised until defendant filed its reply brief. Additionally, because defendant Pioneer Roofing, LLC, is the only defendant moving for summary judgment at this time, all further references to “defendant” in this order will be to defendant Pioneer only.

         I am granting defendant's motion for summary judgment in part and denying it in part. Because the undisputed facts demonstrate that defendant was not plaintiffs' employer within the meaning of applicable federal and state law, plaintiffs' Fair Labor Standards Act claims as well as their claims for Wisconsin overtime and straight time pay will be dismissed as to defendant. However, I am denying the motion with respect to the Wisconsin prevailing wage claim and allowing plaintiffs to proceed on that claim against defendant as a non-employer general contractor.

         From the parties' proposed findings of fact and the record, I find that the following facts are not subject to genuine dispute, except as indicated otherwise.


         Between 2014 and December 2016 (the exact dates are unclear), plaintiffs Joshua Flecha and Luis Acevedo were employed by defendant Metal Systems, LLC, to perform hourly work installing sheet metal on roofs. During that time period, defendant Metal Systems worked on more than 800 projects for approximately 50 different clients throughout the state of Wisconsin.

         Defendant is in the business of providing design, installation, repair and other commercial and industrial roof services. It has engaged Metal Systems frequently as a subcontractor for projects requiring the fabrication and installation of sheet metal roofing components. The companies have partially overlapping ownership and management: three of Metal Systems' five individual “members, ” each of whom owns a 20% stake in the company, are owners or employees of Pioneer. Brian Boettcher, defendant's managing member and president, is a member of Metal Systems. However, Mark Staven, the managing member of Metal Systems, is not an owner of defendant or involved in its management.

         When Metal Systems performs subcontracted work on a project for defendant, it typically does so within the scope of work as defined by a prime contract between defendant and the property owner or original project general contractor. Between November 2014 and December 2016, defendant used Metal Systems as a subcontractor for 110 projects. Most of defendant's projects during that time did not involve any subcontracting work by Metal Systems. (The parties dispute exactly how much of defendant's work involved Metal Systems, but they appear to agree that defendant engaged Metal Systems on something less than 22% of its total number of projects during that time period. Dft.'s Reply to Plts.' Resp. to Dft.'s PFOF, dkt. #54 ¶¶ 15 and 40.)

         Defendant estimates that Metal Systems works on between 40% and 60% of defendant's projects that require sheet metal work. Typically, Metal Systems provides its own personnel, equipment and materials when performing work for clients, even when working on the job sites of clients. (Plaintiffs say that they and other Metal Systems employees would use defendant's lifts and other equipment while working on one of defendant's jobs sites, but defendant disputes this. Both Metal Systems and defendant agree that defendant's personnel were present on job sites where plaintiffs and other Metal Systems employees were installing sheet metal and would oversee, direct or provide particular instructions or feedback on the sheet metal work, but the parties dispute the scope and details of this supervision. Id. ¶ 44; Dft.'s Resp. to Plts.' Addl. PFOF, dkt. #53 ¶¶ 11-15.)

         Under the subcontracts between the two companies, defendant does not have the authority to hire, fire or discipline any individual employed by Metal Systems. Defendant's managing member and president, Brian Boettcher, is also a member of Metal Systems, but he does not determine or participate in the development of Metal Systems' work rules or policies and was not involved in any decisions relating to Metal Systems' employment matters, such as hiring, firing or compensation.

         Under Metal Systems' operating agreement, only managing member Mark Staven or his designee has the authority to perform a range of customary business activities, including hiring and firing officers, employees or other personnel. Neither Staven nor fellow member Robert Epping is an owner or employee of defendant and neither is responsible for hiring and screening Metal Systems employees or determining their rate of pay. Defendant is not involved in hiring, screening or reviewing candidates for employment with Metal Systems. (Defendant and Metal Systems say that Staven and Epping are the only members involved in Metal Systems' management and operation. Plaintiffs dispute this. They say that accountant Brian Monogue was an owner and employee of defendant and also performed some management, operating and accounting functions for Metal Systems, including calculating and determining employee compensation. Dft.'s. Reply to Plts.' Resp. to Dft.'s PFOF, Dkt. #54 ¶¶ 6-9.)

         Staven, Epping and other Metal Systems employees are responsible for monitoring, tracking and recording the hours worked by Metal Systems' employees on work sites and the rate of pay for the work. Defendant has never been involved in the recording, reviewing, verifying or approving time worked by plaintiffs or any other Metal Systems employees. Metal Systems does not provide defendant names or other identifying information about the individual employees who will be working on particular projects or job sites worked on by defendant. Defendant does not maintain any employment or personnel records for plaintiffs or any other Metal Systems employees. Defendant does not provide any compensation or benefits to Metal Systems employees who work on Metal Systems' job sites.

         Depending on the time of year, Metal Systems employs between three and eight full or part-time employees. During their employment with Metal Systems, plaintiffs Flecha and Acevedo spent what they call a significant amount of their time working on defendant's projects and job sites. (The parties dispute the proportion of time plaintiffs devoted to defendant's projects, but each plaintiff estimates he spent at ...

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