BENTON – Mertzke Excavating and Trucking owners claim that after Dominion Sadler sued them for overtime, he flunked a drug test, abandoned a truck on Grand Avenue in St. Louis, and ripped out the global positioning system.
Mertzke sought $100,000 in punitive damages from Sadler at U.S. district court in April, through a counterclaim to Sadler’s suit.
Sadler’s attorney, David Cates of Swansea, responded on April 28 that the truck was driven to St. Louis and parked on Grand Avenue but denied it was abandoned.
He admitted Sadler was selected for a test but denied it was random; he admitted Sadler had a positive result but denied it was his specimen; he denied Sadler ripped out the GPS.
Cates wrote that any damages Mertzke suffered were a result of its actions or fault.
“Defendant’s damages, if any, are the direct and proximate result of the negligent or intentional acts or omissions of individuals or entities other than plaintiff and over whom plaintiff has no control and liability should be apportioned accordingly,” Cates wrote.
Mertzke operates at 7401 Bunkum Road in East St. Louis.
Cates filed Sadler’s suit in St. Clair County circuit court last November, proposing to certify him as class representative for about 20 current drivers.
He wrote that in a typical week, Sadler spent eight to ten hours performing work that was not compensated.
He wrote that Mertzke determined the time at which drivers were to report to a location with a truck.
“In order to arrive at that time, plaintiff and other truck drivers would be forced to arrive at defendant’s premises to pick up the truck, inspect it for safety and operation, and then drive the truck to the location designated by the defendant,” Cates wrote.
He claimed drivers were not paid for time spent inspecting the truck or driving it to the location of the designated work.
“At the end of plaintiff’s shift, plaintiff would typically be required to go empty and clean the truck, and then return it to defendant’s premises and perform another inspection,” Cates wrote.
He claimed drivers weren’t paid for time spent driving back to defendant’s premises or cleaning or inspecting it.
He alleged violation of Illinois minimum wage law, claiming the work was compensable as overtime.
In a second count he alleged violation of Illinois wage payment and collection law, stating it requires payment of all wages earned.
Mertzke removed the suit to district court in December, asserting diversity between Sadler as a Missouri resident and Mertzke as an Illinois business.
In January, Mertzke moved to dismiss Sadler’s complaint.
Mertzke counsel Brian McGovern of Town and Country, Mo., claimed Sadler’s duties as a dump truck driver made him exempt from overtime compensation.
He wrote that Sadler failed to allege that the work occurred in any week in which he worked more than 40 hours, that the complaint included no detail about how he was paid or his standard working days or hours, and that relief couldn’t be granted under the second count because Sadler failed to allege an employment contract or agreement.
In response in February, Cates argued that Mertzke possessed Sadler’s time records and could determine what the cause of action claimed.
“Plaintiff is not required to plead each shift he worked for each week he worked,” Cates wrote.
On the second count, he claimed conduct alone can show an agreement to compensate overtime.
In reply on March 5, McGovern found it telling that Sadler didn’t discuss typical start or end times.
He wrote that customer demand largely drives work hours.
“Where, as here, employees are paid per load/job a sufficient amount of factual detail must be included in order to support any inference that the employees eclipsed 40 hours in a particular workweek,” McGovern wrote.
He wrote that Sadler didn’t allege that any uncompensated work occurred in a week in which he worked in excess of 40 hours.
On March 9, McGovern notified District Judge Staci Yandle that “additional events have occurred” since he moved to dismiss.
He wrote that in January, Sadler was randomly selected for a drug test and the results came back positive.
He wrote that the testing facility notified him he wasn’t authorized to drive.
He wrote that Mertzke dispatched him to drive on Jan. 20, because it hadn’t received notice.
He wrote that company employee Jody Mertzke became aware at about 9 a.m., and contacted employee Ron Gishler at a fill site.
He wrote that Mertzke told Gishler to ask Sadler for the truck and take him home.
“When Mr. Gishler asked plaintiff to return possession of the truck to defendant, plaintiff assaulted Mr. Gishler and drove away from the fill site in defendant’s vehicle,” McGovern wrote.
He wrote that Sadler abandoned it about five blocks from his residence and towing it back to East St. Louis cost $850.
He wrote that the fuel tanks were filled with debris that had to be cleaned out before the truck could be reused.
He moved for leave to file a counterclaim, claiming Sadler’s reprehensible conduct warranted punitive damages.
On April 6, Yandle ruled that Sadler could proceed on his first count but dismissed the second count for lack of a contract or agreement.
She advised Mertzke to file the counterclaim with its answer to the complaint, and McGovern did so the next day.
Cates, answering on April 28, denied Sadler assaulted Gishler.
He wrote that Mertzke’s recovery, if any, should be reduced to the extent that it failed to mitigate damages.
He wrote that recovery “should be barred as a result of defendant’s unclean hands.”
On May 6, he amended Sadler’s complaint to plead the second count in the alternative “to the extent that any claimed wages not paid are classified as regular wages and non overtime based on the amount of hours worked or otherwise non compensable as overtime.”
“Based on manifestation of mutual assent and prior custom and practice, the parties here had an agreement whereby plaintiff would be paid by defendant for work done in the furtherance of defendant’s business,” Cates wrote.
He asserted a third count of unjust enrichment in the alternative.
Yandle has set trial in September 2021.