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kuebel

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Published by employmentlawyer
Second Circuit's decision in Kuebel v. Black & Decker
Second Circuit's decision in Kuebel v. Black & Decker

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Published by: employmentlawyer on May 09, 2011
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05/09/2011

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10-2273-cvKuebel v. Black & Decker (U.S.) Inc.
UNITED
 
STATES
 
COURT
 
OF
 
APPEALS
1
FOR THE
S
ECOND
C
IRCUIT
2_____________________34August Term, 201056(Argued: March 10, 2011 Decided: May 5, 2011)78Docket No. 10-2273-cv910_____________________1112G
REG
K
UEBEL
,
 
on behalf of himself and all others similarly situated,1314
Plaintiff-Appellant 
,1516S
AVA
G
HICAS
,1718
Plaintiff 
 
,1920v.2122B
LACK
&
 
D
ECKER
I
NC
.,
 
U
NITED
S
TATES
,2324
 Defendant-Appellee
.2526Before: B.D.
 
P
ARKER
,
 
L
IVINGSTON
,
 
and L
YNCH
,
Circuit Judges
.2728___________________2930Appeal from a judgment of the United States District Court for the Western District of 31New York (Telesca,
 J 
.) granting summary judgment for Defendant-Appellee on Plaintiff-32Appellant’s claims under the Fair Labor Standards Act and the New York Labor Law for wages33allegedly owed to him by Defendant-Appellee, his former employer.3435AFFIRMED in part, VACATED in part, and REMANDED.36___________________3738394041
 
2J.
 
N
ELSON
T
HOMAS
,
 
Thomas & Solomon LLP,1Rochester, NY (Alan G. Crone, Kramer & Crone,2PLC, Memphis, TN,
on the brief 
 
),
 for Plaintiff-
3
 Appellant 
.45A
MANDA
C.
 
S
OMMERFELD
,
 
Winston & Strawn LLP,6Los Angeles, CA,
 for Defendant-Appellee
.7________________________________________________________________________89B
ARRINGTON
D.
 
P
ARKER
,
 
Circuit Judge
:10Plaintiff-Appellant Greg Kuebel appeals from a judgment of the United States District11Court for the Western District of New York (Telesca,
 J.
) granting summary judgment for12Defendant-Appellee Black & Decker (U.S.) Inc. (“B&D”). Kuebel sues on behalf of himself and13other similarly situated current and former B&D employees, asserting three sets of claims under14the Fair Labor Standards Act and the New York Labor Law. Principally, Kuebel asserts that15B&D owes him compensation for (1) all of the time he spent commuting between home and the16 job site (the “commute time” claims), and (2) overtime hours that he allegedly worked but did17not record (the “off-the-clock” claims). He also alleges that B&D fired him in retaliation for18complaining about unpaid overtime (the “retaliation” claims). As explained below, we conclude19that the district court properly granted B&D summary judgment on the commute time claims, but20that Kuebel has raised genuine issues of material fact on his off-the-clock claims. We leave it to21the district court to decide in the first instance whether to allow Kuebel to reassert his retaliation22claims, which he abandoned below, in light of recent Supreme Court precedent. Accordingly,23we affirm in part, vacate in part, and remand for further proceedings consistent with this opinion.2425
 
1
Facts are undisputed unless otherwise indicated.
3
BACKGROUND
1
The Parties
2B&D is a manufacturer of power tools, and sells its products in stores like Home Depot.
1
 3Kuebel was employed by B&D as a Retail Specialist from September 2006 to June 2007. Retail4Specialists are assigned to particular Home Depot stores within a specified territory, and are5responsible for B&D product merchandising and marketing at those stores. Kuebel was assigned6to six Home Depot stores, ranging from twenty minutes to three hours from his home by car. As7a Retail Specialist, he did not report to a central office, but rather used his home as a base.8While he was employed by B&D, Kuebel also did merchandising work for three other9companies.10
Kuebel’s Job Duties
11Kuebel’s primary responsibility as a Retail Specialist was to ensure that B&D products12were properly stocked, priced, and displayed in his assigned Home Depot stores. His duties also13included setting up B&D displays, training Home Depot sales employees, and assisting those14employees in selling B&D products. B&D expected a Retail Specialist to spend five to eight15hours per day completing these in-store activities.16Retail Specialists were required to use B&D-issued Personal Digital Assistants (“PDAs”)17to record entry and exit times at their assigned Home Depot stores. B&D refers to the amount of 18in-store time recorded by a PDA as “Beacon” hours. A Retail Specialist’s Beacon hours were19electronically communicated to his managers when he synchronized (synched) his PDA with20

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