United States District Court, District of New Hampshire
Robert Gennell, Jr., et al.
FedEx Corp., et al. Opinion No. 2014 DNH 056
MEMORANDUM AND ORDER
Paul Barbadoro United States District Judge
The plaintiffs in this long-running dispute are a class of drivers based in New Hampshire who worked for defendant FedEx Ground Package System, Inc. (“FedEx”). Plaintiffs claim, among other things, that they are entitled to be reimbursed for work-related expenses pursuant to section 275:57(I) of the New Hampshire Revised Statutes. This Memorandum and Order resolves the parties’ cross-motions for summary judgment addressing the drivers’ reimbursement claim.
In a prior order, I described the relationship between FedEx and its drivers as it existed during the class period. See Gennell v. FedEx Ground Package Sys., Inc., 2013 DNH 110, 2- 6. As relevant here, each driver entered into a standard-form “Operating Agreement” (“OA”) with FedEx. See Doc. No. 80-1. The OA requires each driver to purchase and bear “all costs and expenses incidental to operation” of their delivery vehicles, including the cost of fuel, maintenance, insurance, taxes, tolls, licenses, and other work-related expenses. Id.
The drivers agreed to the terms of the OA in order to obtain:
the advantage of operating within a system that will provide access to national accounts and the benefits of added revenues associated with shipments picked up and delivered by other contractors throughout the FedEx Ground system. In order to get that advantage, [the driver] is willing to commit to provide daily pick-up and delivery service, and to conduct his/her business so that it can be identified as being part of the FedEx Ground system.
Id. FedEx paid each driver a weekly “settlement” payment “for services provided” pursuant to the OA. Id. A driver’s total weekly settlement payment was calculated according to a formula that included individual payments for stops made; for packages handled; for each day that a qualified, uniformed driver provided a clean, properly maintained vehicle; for each day that a driver picked up and delivered packages in a sparsely populated area; for each day that a driver participated in FedEx’s “Flex Program”; for each mile driven each day in excess of 200 miles; and for each mile driven when the fuel price per gallon exceeded a specific threshold.
II. STANDARD OF REVIEW
Summary judgment is appropriate when the record reveals “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). An issue is considered genuine if the evidence allows a reasonable jury to resolve the point in favor of the nonmoving party, and a fact is considered material if it “is one ‘that might affect the outcome of the suit under the governing law.’” United States v. One Parcel of Real Prop. with Bldgs.,
960 F.2d 200, 204 (1st Cir. 1992) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). In ruling on a motion for summary judgment, I examine the evidence in the light most favorable to the nonmoving party. Navarro v. Pfizer Corp., 261 F.3d 90, 94 (1st Cir. 2001).
The party moving for summary judgment bears the initial burden of identifying the portions of the record it believes demonstrate an absence of disputed material facts. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In determining what constitutes a material fact, “we safely can ignore ‘conclusory allegations, improbable inferences, and unsupported speculation.’”
Carroll v. Xerox Corp., 294 F.3d 231, 237 (1st Cir. 2002) (quoting Medina–Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990)). On cross motions for summary judgment, the standard of review is applied to each motion separately. See Am. Home Assurance Co. v. AGM Marine Contractors, Inc., 467 F.3d 810, 812 (1st Cir. 2006).
The drivers claim that FedEx must reimburse them for certain expenses that the drivers agreed to assume in the OA. They base their claim on section 275:57(I) of the New Hampshire Revised Statutes (the “Reimbursement Statute”),  which provides:
An employee who incurs expenses in connection with his or her employment and at the request of the employer, except those expenses normally borne by the employee as a precondition of employment, which are not paid for by wages, cash advance, or other means from the employer, shall be reimbursed for the payment of the expenses within 30 days of the presentation by the employee of proof of payment.
FedEx responds by invoking the exception in the statute for expenses “paid for by wages, cash advance, or other means.” The assumptions underlying FedEx’s interpretation of the exception are: (1) the Reimbursement Statute does not require an employer to reimburse an employee for expenses that are “paid for” by “wages”; (2) the “other means” by which an employer can pay for expenses and thereby avoid the duty to reimburse encompasses means of payment similar to “wages, ” see, e.g., State v. Beauchemin, 161 N.H. 654, 658 (2011) (“[W]here specific words in a statute follow [or precede] general ones, the general words are construed to embrace only objects similar in nature to those enumerated by the specific words.” (quoting State v. Breed, 159 N.H. 61, 65 (2009))); and (3) a payment that an employer makes to a statutory employee in exchange for an agreement to perform services and assume related expenses is subject to the exception because it is a means of payment similar to the payment of expenses with ...