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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

DANIEL KOCH and JOHNNY RAY )

WELLS, JR., on Behalf of Themselves )

and All Others Similarly Situated, )

)

Plaintiffs, )

)

vs. ) CAUSE No.: 1:14-CV-72

)

JERRY W. BAILEY TRUCKING, INC. )

JERRY W. BAILEY and LINDA L. )

BAILEY, )

)

Defendants. )

MEMORANDUM IN SUPPORT OF 

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 

The class and collective Plaintiffs allege that they are entitled to payment for 

wages for work conducted off the clock during their employment with Jerry W. Bailey 

Trucking, Inc. (“Bailey Trucking”). The Class Action was provisionally certified for an 

action for unpaid wages under the Indiana Wage Payment Act. A Collective Action 

was provisionally certified for claims for unpaid overtime pursuant to the Fair Labor 

Standards Act. 

The Defendants are entitled to summary judgment on the following issues:

1. Any claims for unpaid wages are defeated by the fair and acceptable 

rounding procedures followed by Bailey Trucking, and any unpaid wages after 

following the rounding procedures are de minimis;

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2. Jerry W. Bailey and Linda Bailey should not be individually liable for any 

claims for unpaid overtime in the Collective Action;

3. A participating Collective Member should not be entitled to damages for 

unpaid overtime during a third year look back period under the Fair Labor Standards 

Act because there is no evidence that Bailey Trucking acted willfully in disregard of the 

requirement to pay overtime; and

4. In the event that the proposed Class Action under the Indiana Wage 

Payment Act is not decertified, any damages suffered by a Class Participant is limited to 

the actual wages that were unpaid as the representatives of Bailey Trucking acted in 

good faith. 

I. Legal Standard

A motion for summary judgment must be granted “if the movant shows that 

there is no genuine dispute as to any material fact and the movant is entitled to 

judgment as a matter of law.” Fed. R. Civ. P. 56(a). Rule 56 further requires the entry 

of summary judgment, after adequate time for discovery, against a party “who fails to 

make a showing sufficient to establish the existence of an element essential to that 

party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. 

v. Catrett, 477 U.S. 317, 322 (1986).

A party seeking summary judgment bears the initial responsibility of informing a 

court of the basis for its motion and identifying those portions of the pleadings, 

depositions, answers to interrogatories, and admissions on file, together with the 

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affidavits, if any, which it believes demonstrate the absence of a genuine issue of 

material fact. Celotex, 477 U.S. at 323. If the moving party supports its motion 

for summary judgment with affidavits or other materials, it thereby shifts to the nonmoving party the burden of showing that an issue of material fact exists. Keri v. Bd. of 

Trust. of Purdue Univ., 458 F.3d 620, 628 (7th Cir. 2006).

In viewing the facts presented on a motion for summary judgment, a court must 

construe all facts in a light most favorable to the non-moving party and draw all 

legitimate inferences and resolve all doubts in favor of that party. Keri, 458 F.3d at 628. 

A court's role is not to evaluate the weight of the evidence, to judge the credibility of 

witnesses, or to determine the truth of the matter, but instead to determine whether 

there is a genuine issue of triable fact. Anderson v. Liberty Lobby, 477 U.S. 242, 249–50 

(1986). See Crop Prod. Servs. Inc. v. Rudicel, No. 3:14-CV-1751 JVB, 2016 WL 8199121, at 

*1 (N.D. Ind. May 6, 2016).

II. Analysis

Jerry W. Bailey is the owner of Jerry W. Bailey Trucking, Inc. (“Bailey 

Trucking”). His wife Linda Bailey is also an owner. Bailey Trucking has been involved 

in providing dump truck services since 1975, and was incorporated in 1981.1

Bailey Trucking pays its drivers hourly and pays overtime when a driver earns it. 

Drivers keep track of their own hours, writing down their start time and their finish 

time at the end of the day. Drivers are paid for lunch during the day and for any time

 

1 A statement of material facts with supporting documentation is filed separately with citations testimony 

in depositions.

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spent in cleaning their trucks. The start time for drivers is once they hit the gate to leave 

the facility. The end time is when they return after fueling.

Bailey Trucking rounds all driver time to the quarter of the hour. This allows 

employees to get their truck ready in an efficient manner and head out to start the day. 

Drivers should at the beginning of the day, get in, walk around the truck, just 

check the tires, check the belts, the fluids, start the truck, and walk in here and get ready 

to work. Jerry Bailey and Chad Bailey believe this takes only a few minutes. Bailey 

Trucking does have a policy that drivers are to arrive fifteen minutes prior to their start 

time, but employees do not follow that policy. Jerry and Chad have both witnessed 

drivers simply jumping in the truck and going.

At the end of the day, drivers are to fuel up and clean out their beds. Many 

drivers do not wait until the end of the day to clean out their beds or to refuel. Jerry 

and Chad do not believe that this takes much time.

The named class representatives testified that every day they dutifully arrived 

fifteen minutes early and started and prepared their trucks. At the end of every day 

they cleaned out their beds and refueled their truck. They claim that they worked 

fifteen minutes at the beginning and end of every day they worked, and that they were 

not paid by Bailey Trucking, either regular time or overtime for this work.

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A. Any claims for unpaid wages are defeated by the fair and acceptable 

rounding procedures followed by Bailey Trucking and any unpaid wages 

following the rounding process are de minimis

Bailey Trucking had employee write down their start time and end time on 

handwritten time cards. These time cards allowed the employee to control his or her start 

and finish times. Bailey Trucking then paid employees by rounding their time either up or 

down in a quarter hour rounding period. Employees could therefore control the start and 

end time for the day. Employees could also complain and have their time periods adjusted 

if they felt that their paychecks did not adequately represent the time they worked.

Regulations interpreting the FLSA provide that employers may round recorded 

starting or stopping times to the nearest quarter of an hour. 29 CFR 785.48. This way 

employers, while maintaining accurate records, can disregard early or late punching by 

employees who voluntarily arrive early or remain after hours, so long as those employees 

do not perform any work. Id. This is the exact scenario envisioned by Jerry Bailey.

In this way, Bailey Trucking could pay its employees who were actually working, 

but avoid paying employees who were just drinking coffee. However, employees who 

were dutifully and efficiently cleaning their trucks could be paid for this time. Jerry Bailey 

testified that the walk-around should only take a few minutes of time. Chad Bailey echoed 

these comments. This way, any unpaid time should be de minimis for each employee.

Under the de minimis doctrine, time that is otherwise compensable need not be 

included in the "hours worked" calculation where the time period "as a practical 

administrative matter, cannot be adequately recorded for payroll purposes." Alexander v. 

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Wackenhut Corp., 2008 U.S. Dist. LEXIS 50070, 2008 WL 2697163, *6 (E.D. La. 2008). When 

evaluating whether work performed by an employee is de minimis, courts typically consider 

the amount of time spent on the extra work, the practical administrative difficulties of 

recording additional time, the regularity with which the additional work is performed, and 

the aggregate amount of compensable time. Lindow v. United States, 738 F.2d 1057, 1062-63 

(9th Cir. 1984); see also 29 C.F.R. § 785.47. 

Assuming that the statements of Jerry and Chad are accurate, the amount of any 

uncompensated time should be minimal. Time to prepare for the day of 2-4 minutes or a 

short refueling time, will likely be included in the reported time based on the rounding 

process. And, if the preparation or refueling is done on a daily basis, the rounding should 

equal out over the long run. 

Furthermore, it is also clear that employees were, at times, paid to refuel and clean 

their truck at the end of the day as shop time. A primary allegation is that Bailey Trucking 

did not pay for time at the end of the day. Clearly, some employees were paid, and at 

times, at least Daniel Koch, was paid for shop time. 2

In regard to the difficulty in tracking the pre and post work time, the time sheets 

were to match the dispatch sheets for purposes of billing Bailey Trucking’s customers. This 

would potentially create difficulty for Bailey Trucking to determine if a time mark on a 

hand written card was when an employee actually started working, or if it was when the 

employee left the lot for billing purposes. The rounding process in place was designed to 

 

2 To the extent that this creates an issue of fact that must be tried, it creates another layer of complexity to 

a potential class and collective action as each employee will need to state if and when they were paid 

shop time, instead of claiming that there was unpaid work at the beginning and end of a day, creating 

new facts that make the matter less efficient as a class or collective case.

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avoid this complexity and to give employees the opportunity to efficiently prepare for the 

day. Furthermore, Jerry and Chad testified that employees did not regularly follow the 

policy, and both witnessed employees simply getting into their truck and going without 

any warm up or walk around.

At the end of the day, Bailey Trucking utilized a regular and common practice of 

tracking time for its drivers. Its time rounding process to the quarter of an hour is an 

acceptable practice under the FLSA and the regulations governing the implementation of 

the Act. Additionally, once the court considers the ramifications of the rounding process, 

any unpaid time is de minimis. The unpaid work time would not be regularly incurred as 

the rounding process allows for an equal distribution of time in favor of the employee and

in favor of the employer. 

B. Jerry W. Bailey and Linda Bailey should not be individually liable for 

any claims for unpaid overtime in the Collective Action

Under the FLSA, an “employer” is “any person [who acts] directly or indirectly 

in the interest of an employer in relation to an employee. 29 U.S.C. 203(d). Those with 

supervisory authority over employees may be held individually liable as employers 

under the FLSA if they were either responsible in whole or in part of an alleged

violation. Riordan v. Kempiners, 831 F.2d 690, 694 (7th Cir. 1987). A corporate officer with 

operational control over an employing entity falls within the definition. See U.S. Dept of 

Labor v. Cole Enterpises, Inc., 62 F.3d 775, 778-79 (6th Cir. 1995). 

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Because just about any supervisor, officer or director may “act in the interest of 

the employer,” Courts look to the parties exercising significant control over the 

employment relationship. The issue is not whether the individual controls every aspect 

of the employees’ conduct, but whether the individual has control over the alleged 

violation of the FLSA. See Dole v. Simpson, 784 F. Supp. 538 (S.D. Ind. 1991). In this case, 

Linda Bailey and Jerry Bailey were named as individual defendants. Their potential 

liability is limited to claims under the FLSA in the Collective Action only. There is no 

claim that either should be individually liable under the Class Action for violation of 

the Indiana Wage Payment Act.

Linda Bailey was named as a defendant as an owner of Bailey Trucking. Linda 

worked in the human resources area of Bailey Trucking and assisted with payroll. She 

also assisted in accounts payable and accounts receivable. She was not involved in 

hiring and firing or setting pay. While she did help create the employment manual, she 

was not in charge of creating policies. She also did not get involved with work 

assignments (or dispatch of the drivers) and was not in charge of policies concerning 

time cards, rounding or the time to start or stop work. It is clear that Linda Bailey, even 

though she is the spouse of Jerry Bailey and a part owner, is not an employer under the 

FLSA.3

Jerry Bailey is admittedly a closer call for individual liability. Jerry is a

shareholder of Bailey Trucking. Jerry stated that he was in charge of the pay policies at 

 

3 The parties attempted to dismiss Linda Bailey by stipulation. The court denied the stipulation based on 

notice requirements under Fed. R. Civ. P. 23.

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Bailey Trucking. Jerry stated that he paid his employees the same way that his 

competitors did. There is no testimony that Jerry was involved in daily dispatch or 

assignments for work. Jerry was also not involved in compiling payroll from the time 

cards of the workers. Neither class representative, Daniel Koch or Johnny Wells, 

testified that they complained to Jerry about payroll, the timing functions or payment of 

overtime. As a result, even if the definition of employer under the FLSA is expansive, 

based on the facts, Jerry should not be defined as an employer with individual liability.

C. A participating Collective Member should not be entitled to 

damages for unpaid overtime during the third year under the Fair Labor 

Standards Act because there is no evidence that Bailey Trucking acted willfully 

in disregard of the requirement to pay overtime

The usual statute of limitations under the Fair Labor Standards Act (“FLSA”) is 

two years from the date that the claim for back wages accrued. 29 U.S.C. § 255. There 

is, however, an exception if the violation of the FLSA by the employer was willful. If the 

violation was willful then the statute of limitations is extended to three (3) years. Id. 

The Supreme Court has interpreted willful with respect to the FLSA to mean "the 

employer either knew or showed reckless disregard for the matter of whether its 

conduct was prohibited by the statute." McLaughlin v. Richland Shoe Co., 486 U.S. 128,

133 (1988). Further, the Supreme Court has noted that a finding of willfulness in the

FLSA refers to actions that are more than mere negligence. Hazen Paper Co. v. Biggins,

507 U.S. 604, 615 (1993).

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The Northern District Court of Indiana has followed the Supreme Court’s lead 

and held that:

A violation is deemed willful under the FLSA if the employer either knew 

or showed reckless disregard for whether its conduct was prohibited by 

the FLSA. An employer's mere negligence or a good faith - but incorrect -

belief that they were in compliance with the FLSA, are not sufficient to 

rise to the level of a willful violation.

Fugate v. Dolgencorp, LLC, 2012 U.S. Dist. LEXIS 151876, 18 (N.D. Ind. Oct. 23, 2012) 

(internal citations omitted) see also EEOC v. Madison Cmty. Unit Sch. Dist., 818 F.2d 577, 

585 (7th Cir. 1987)(“A violation is ‘willful’ under the Act if the defendant either knew he 

was violating the Act or was indifferent to whether he was violating it or not (and 

therefore ‘reckless’)”). “Reckless disregard... involves actual knowledge of a legal 

requirement, and deliberate disregard of the risk that one is in violation.” The court 

went on to state that the plaintiff must prove more than the employer should have 

known that they were violating the law. Damassia v. Duane Reade, Inc., 2005 U.S. Dist. 

LEXIS 9768, 7 (S.D.N.Y. May 17, 2005)

Jerry and Linda both testified that Bailey Trucking paid overtime. Koch testified 

that he was paid overtime. He testified that if he had an issue with his compensation he 

would discuss it with office staff at Bailey Trucking and had his payroll records adjuster 

in his favor. Neither Koch nor Wells complained during their employment about the 

start and end time and not being paid for their work.

Bailey Trucking had the appropriate work posters in the office and kept those up 

to date. The Indiana Department of Labor conducted an audit of Bailey Trucking’s 

payroll practices and did not instruct Bailey Trucking to do anything different. Jerry 

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testified that he talked to other business in the dump truck market and believed that he 

paid the same way that they did. 

This type of conduct is not willful or reckless conduct. The payroll procedures 

used by Bailey Trucking were similar to others in the industry, and no one told Bailey 

Trucking - or even complained - that its policies were improper or unsatisfactory. This 

is a case where there are now allegations that time was not properly recorded – or paid. 

This is the type of mere negligence that may lead to liability (of course, the Defendants 

deny the same), but it should not lead to an extended third-year of claims and liability 

under the FLSA.

D. In the event that the proposed Class Action under the Indiana 

Wage Payment Act is not decertified, any damages suffered by a Class 

Participant is limited to the actual wages that were unpaid as the Defendants 

acted in good faith. 

The Indiana Wage Payment Act found at Ind. Code 22-2-5 et seq. was amended 

by the Indiana General Assembly following the commencement of this litigation. The 

existing statute changes the provisions on awarding damages slightly to remove the 

prior version’s automatic application of liquidated damages of ten percent per day up 

to two times the amount of the wages due. See I.C. 22-2-5-2 (2014). The current version 

provides:

Every [employer] who shall fail to make payment of wages to any such

employee as provided in section 1 of this chapter shall be liable to the 

employee for the amount of unpaid wages, and the amount may be 

recovered in any court having jurisdiction of a suit to recover the amount 

due to the employee. The court shall order as costs in the case a reasonable 

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fee for the plaintiff’s attorney and court costs. In addition, if the court in 

any such suit determines that the [employer] that failed to pay the 

employee as provided in section 1 of this chapter was not acting in good 

faith, the court shall order, as liquidated damages for the failure to pay 

wages, that the employee be paid an amount equal to two (2) times the 

amount of wages due the employee.

I.C. § 22–2–5–2 (current version) (emphasis added).

In Brown v. Bucher and Christian Consulting, Inc., 87 N.E.3d 22 (Ind. Ct. App. 2017), 

the Indiana Court of Appeals held that the purpose of the amendments were remedial 

and therefore retroactive application of the statute should apply to litigation. “Given 

the remedial nature of the 2015 amendment and the penal nature of the Wage Payment

Statute, we can only conclude that the 2015 amendment may be applied retroactively.” 

Id., at 27. Therefore, to the extent that this court finds a violation of the Indiana Wage 

Payment Act in favor of the Class Participants, the Court should not automatically 

apply the liquidated damage provisions.

The facts show that Bailey Trucking acted in good faith concerning the payment 

of overtime. As stated in the section above, Bailey Trucking acted in good faith 

concerning its belief that its time keeping practices and payroll practices complied with 

the law and were accurate. Bailey Trucking had outside accountants assisting it with its 

payroll practices. Jerry believed that his payroll practices were consistent with other 

dump truck entities. To the extent that the court finds that Bailey Trucking did not act 

willfully or recklessly, it should also find that Bailey Trucking acted in good faith and 

decline to award liquidated damages under the Indiana Wage Payment Act, in the 

event that the court finds that the Class is entitled to damages.

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III. Conclusion

The Defendants are entitled to summary judgment on the claims of the Collective 

and Class participants as the payroll practices of Bailey Trucking were appropriate and 

legal. To the extent that the class and collective action participants were not 

compensated for their time and worked off the clock, the time spent was actually 

compensated due to the appropriate rounding practices. After applying the 

appropriate rounding practices, any time unpaid is de minimis. to the extent that the 

claims are not dismissed in their entirety, neither Jerry Bailey or Linda Bailey should be 

individually liable for any claims in the Collective Action under the FLSA; and they 

should not be individually liable for any claims in the Class action as no such theory has 

been alleged for the violation of the Indiana Wage Payment Act. Last, the same 

operative facts show that Bailey Trucking did not act recklessly or willfully, and instead 

acted in good faith that its pay practices complied with federal and state law. As a 

result, the Court should not allow a third year look back under the FLSA claims in the 

collective action and the court should not award any liquidated damages in the Class 

Action for a violation of the Indiana Wage Payment Act.

Respectfully submitted,

ROTHBERG LOGAN & WARSCO LLP

/s/Theodore T. Storer

Theodore T. Storer #17576-02

505 East Washington Boulevard

P.O. Box 11647

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Fort Wayne, Indiana 46859

Telephone: (260) 422-9454

Facsimile: (260) 422-1622

tstorer@rlwlawfirm.com 

CERTIFICATE OF SERVICE

I hereby certify that on April 30, 2018, a copy of the foregoing was filed electronically. 

Notice of this filing will be sent to the following party by operation of the Court’s CM/ECF 

system.

Ronald E. Weldy

BARKER HANCOCK & COHRON

198 South 9th Street

Noblesville, IN 46060

rweldy@bhclegal.com 

/s/Theodore T. Storer

Theodore T. Storer

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