Baricuatro et al v. Industrial Personnel and Management Services, Inc. et al

Filing 677

ORDER and REASONS granting in part and denying in part 583 Motion for Partial Summary Judgment on Plaintiffs' Purported Tax Refund Claim; granting in part and denying in part 585 Motion for Partial Summary Judgment on Plaintiffs' Misr epresentation Claims; granting 586 Motion for Partial Summary Judgment on Plaintiffs' Purported Tax Refund Claim; denying 609 Motion for Partial Summary Judgment on Section 1981 Claim; granting in part and denying in part 628 Motion for Partial Summary Judgment on Plaintiffs' Breach of Contract and Implied Duty of Good Faith and Fair Dealing Claims and denying 635 Motion for Partial Summary Judgment on Damages, as stated within document. Signed by Judge Kurt D. Engelhardt on 7/7/2014. (cbs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

ISIDRO BARICUATRO, ET AL

CIVIL ACTION

VERSUS

NO. 11-2777

INDUSTRIAL PERSONNEL AND
MANAGEMENT SERVICES, INC., ET AL

SECTION “N” (2)

ORDER AND REASONS
Before the Court are the following motions: (1) a Motion for Partial Summary Judgment
on Plaintiffs' Purported Tax Refund Claim, filed by D&R Resources, LLC, Danilo Dayao, and
Randolf Malagapo (Rec. Doc. 583); (2) a Motion for Partial Summary Judgment on Plaintiffs'
Purported Tax Refund Claim, filed by Grand Isle Shipyard, Inc. (Rec. Doc. 586); (3) a Motion
for Partial Summary Judgment on Plaintiffs' Misrepresentation Claims (Rec. Doc. 585); (4) a
Motion for Partial Summary Judgment on Plaintiffs' Breach of Contract and Implied Duty of
Good Faith and Fair Dealing Claims (Rec. Doc. 628); (5) Defendant's Motion for Partial
Summary Judgment on Section 1981 Claim (Rec. Doc. 609); and (6) a Motion for Partial
Summary Judgment on Damages (Rec. Doc. 635).
I. BACKGROUND:
The plaintiffs are skilled Filipino workers who were recruited in the Philippines, given
E-2 or B-1/OCS visas, and then brought to Louisiana, where they worked in the oil and gas

industry. See Rec. Docs. 1, 24, 172, 235, 311. Claims against seven defendants1 have been
dismissed. See Rec. Docs. 543, 544, 545, 546, 564, 566, 567, 571, 577 and 578. The remaining
defendants are: (1) Grand Isle Shipyard, Inc. (“GIS”); (2) D&R Resources, LLC ("D&R"); (3)
Danilo N. Dayao; and (4) Randolf Malgapo.
In its amending complaints, the plaintiffs alleged that the defendants: (1) subjected them
to forced labor in violation of the Trafficking Victims Protection Act of 2003 ("TVPA") (18
U.S.C. §§ 1589-90); (2) violated the Racketeer Influenced and Corrupt Organization Act
(“RICO”) (18 U.S.C. §§ 1961- 68); (3) violated the plaintiffs’ civil rights (42 U.S.C. § 1981); (4)
violated the Fair Labor Standards Act (“FLSA”) (19 U.S.C. §§ 203(m), 206 & 207); (5) violated
the Klu Klux Klan Act of 1871 (42 U.S.C. § 1985) and the Thirteenth Amendment; (6)
committed fraud and negligent misrepresentation; (7) subjected the plaintiffs to false
imprisonment; (8) committed the torts of intentional and negligent infliction of emotional
distress under Louisiana law; and (7) breached contracts and/or covenants of good faith and fair
dealing. See Rec. Docs. 24, 172, 235, 311. The plaintiffs have dismissed their claims under
RICO, the TVPA, and section 1985, as well as their claims for intentional and negligent
infliction of emotional distress. See Rec. Docs. 564, 566, 567, 571, 577 and 578. The Court
dismissed the false imprisonment claims on motion for partial summary judgment. Rec. Doc.
465. The instant motions seek to dismiss the plaintiffs' remaining claims (except for the FLSA
claims, which were the subject of a separate motion for summary judgment that was denied).2

1

The defendants that have been dismissed are: (1) DNR Offshore and Crewing
Services, Inc. (“DNR”); (2) Pacific Ocean Manning, Inc. (“POMI”); (3) V Manpower
Philippines, Inc., f/k/a V People Manpower Philippines, Inc. (“V People”); (4) Industrial
Personnel and Management Services, Inc. (“IPAMS”); (5) Thunder Enterprises, Inc.; (6) Mark
Pregeant; and (7) Nilfil Peralta.
2

See Rec. Docs. 647, 672.
2

II. LAW AND ANALYSIS:
“The Court shall grant summary judgment 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). “[T]he burden on the moving party may be discharged by ‘showing’ — that is,
pointing out to the district court — that there is an absence of evidence to support the nonmoving
party’s case.” Amazing Spaces, Inc. v. Metro Mini Storage, 608 F.3d 225, 234 (5th Cir. 2010)
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).

Once the moving party has

carried this burden, the nonmoving party “must do more than simply show that there is some
metaphysical doubt as to the material facts.” Id. (quoting Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986)).

“[T]he nonmoving party must come forward with

specific facts showing that there is a genuine issue for trial.” Id. (quoting Matsushita, 475 U.S.
at 587). “[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving
party for a jury to return a verdict for that party.” Id. (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249 (1986)).

Although the Court must draw in favor of the nonmoving party all

reasonable inferences that may be drawn from the evidence submitted, “a party cannot defeat
summary judgment with conclusory allegations, unsubstantiated assertions, or ‘only a scintilla of
evidence.’ ” Turner v. Baylor Richardson Medical Center, 476 F.3d 337, 343 (5th Cir. 2007)
(quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994)); Bellard v. Gautreaux,
675 F.3d 454, 460 (5th Cir. 2012). If the nonmoving party cannot produce admissible evidence
sufficient to establish an essential element as to which the nonmoving party would bear the
burden at trial, entry of summary judgment is mandated. Celotex Corp., 477 U.S. at 322-23.

3

A.

The Motions for Partial Summary Judgment on Plaintiffs' Purported Tax
Refund Claim (Rec. Docs. 583 and 586):

Since the inception of this law suit, the plaintiffs have alleged that certain defendants
wrongfully submitted tax returns on the plaintiffs' behalf and retained the plaintiffs' tax refunds.
See Rec. Docs. 1 at ¶ 54, 24 at ¶ 99, 172 at ¶ 116, 235 at ¶ 122, 311 at ¶ 150. Although the
plaintiffs initially included GIS among the defendants named in this allegation,3 they dropped
GIS from the allegation after the First Amended Complaint. See Rec. Docs. 172 at ¶ 116, 235 at
¶ 122 and 311 at ¶ 150. Defendants D&R, Dayao, and Malgapo are consistently named
throughout all the amended complaints as having committed this wrong.
D&R, Dayao, and Malgapo now seek to dismiss this claim on two grounds: (1) that it
was not fairly raised in the pleadings; and (2) that the allegations should be construed as the tort
of conversion, and that as such, the cause of action has prescribed under the one-year period
applicable to delictual obligations. GIS seeks to dismiss the claim on grounds, inter alia, that
GIS was dropped from this allegation in the later amended complaints and, thus, was not given
fair notice that the plaintiffs continued to bring the claim against it. Rec. Docs. 583-1, 586-2.
As to GIS, the Court finds that any fair reading of the complaints would lead a reasonable person
to believe that the claim had been dropped insofar as it pertained to GIS. Thus, GIS is entitled
to judgment as a matter of law dismissing this claim. However, the Court finds that all of the
amended complaints give fair notice of the claim as to D&R, Dayao, and Malgapo.
The Court is further unpersuaded that the claims are prescribed, at least insofar as they
are alleged against D&R. Although the law imposes a general duty to not retain the property of

3

Rec. Doc. 24 at ¶ 99.
4

another, in this case, the alleged employment relationship also imposed upon D & R a
contractual duty to pay the plaintiffs for the work performed. Allegedly applying for and
withholding the plaintiff's tax refunds, if proven, would result in a breach of this contractual
duty. Thus, D&R is not entitled to judgment as a matter of law on this claim, and the motion for
summary judgment will be denied. With regard to Dayao and Malgapo, there is no evidence that
any plaintiff had a contractual relationship with either of these two defendants in their personal
capacities. Thus, as to them personally, the motion will be granted.
B.

The Motion for Partial Summary Judgment on Plaintiffs' Misrepresentation
Claims (Rec. Doc. 585):

Certain of the plaintiffs have asserted intentional and negligent misrepresentation claims
against the defendants, alleging that the defendants promised them free food and housing and/or
sponsorship for green cards or permanent residency in connection with signing employment
contracts. The remaining four defendants seek to dismiss these claims on several grounds. The
Court need not address all the defendant's arguments, for the Court finds that all but two of the
plaintiffs have failed to show that they can establish each element of these causes of action.
To establish a claim for negligent misrepresentation, a plaintiff must prove that: "(1) the
defendant, in the course of its business or other matters in which it had pecuniary interest,
supplied false information, (2) the defendant had a legal duty to supply correct information to the
plaintiff, (3) the defendant breached its duty, which can be breached by omission as well as by
affirmative misrepresentation, and (4) the plaintiff suffered damages or pecuniary loss as a result
of the its justifiable reliance upon the omission or affirmative misrepresentation." Systems
Engineering and Sec., Inc. v. Science & Eng'g Ass'ns, Inc., 962 So. 2d 1089, 1092 (La. Ct. App.

5

4th Cir. 2007). "The elements of a claim for intentional misrepresentation in Louisiana are: (1) a
misrepresentation of a material fact; (2) made with intent to deceive; and (3) causing justifiable
reliance with resultant injury." Kadlec Medical Ctr. v. Lakeview Anesthesia Assocs., 527 F.3d
412, 418 (5th Cir. 2008).
With the exception of two plaintiffs, the Court agrees with the defendants that the
plaintiffs have failed to come forward with evidence of specific facts demonstrating what
specific misrepresentation(s) was made to the individual plaintiff and how that particular
plaintiff relied on the misrepresentation. Throughout their opposition memorandum, the
plaintiffs refer to allegations in the complaint and suggest that they should be accepted as true.
See Rec. Doc. 607. However, the question on summary judgment is not whether the plaintiffs
have pled sufficient facts to give fair notice of their claim; it is whether they can prove their
claim. Once the moving party points out the absence of evidence to support an element for
which the nonmoving party bears the burden of proof, "the nonmoving party must come forward
with specific facts showing that there is a genuine issue for trial.” Amazing Spaces, 608 F.3d at
234 (quoting Matsushita, 475 U.S. at 587). "[T]here is no issue for trial unless there is
sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Id.
(quoting Liberty Lobby, 477 U.S. at 249).
The only real evidence proffered by the plaintiffs are the declarations of Jose Espiritu and
Rosauro Dimalanta. Espiritu attests that he was told by Mark Pregeant, Sr., "in one of his
monthly meetings" that "my work would make me eligible for a green card or permanent
residency" and that "he will help us get a green card." Rec. Doc. 607-3. Espiritu states that he
relied on this statement in continuing to work for GIS and D&R. Id. Similarly, Dimalanta
6

attests that Dayao told him that "he will help me obtain a green card." Rec. Doc. 607-4.
Dimalanta attests that this promise was one of the reasons that he continued working for GIS and
D&R. Id. No similar evidence is offered in support of any other plaintiff's claim.
The only other evidence proffered by the plaintiffs are the employment contracts of eight
plaintiffs.4 Rec. Docs. 607-5 through 607-12. While the Court agrees that promises and
statements made to the plaintiffs regarding free housing or food may be relevant to their breach
of contract claims and FLSA claims (given that the propriety of deductions for room and board
will be at issue in the trial of those claims, at least as to certain plaintiffs), the employment
contracts contain nothing to help the plaintiffs establish the essential elements of their
misrepresentation claims. Likewise, the deposition excerpt of Isidro Baricuatro5 contains
nothing that aids the plaintiffs. Thus, the defendants are entitled to judgment as a matter of law
dismissing the misrepresentation claims of every plaintiff except for Jose Espiritu and Rosauro
Dimalanta.
As for Espiritu and Dimalanta, it is a closer call. Their declarations provide evidence of a
false promise upon which they relied, allegedly to their detriment. The defendants argue
vigorously that reliance upon a promise for green card sponsorship or help attaining permanent
resident status is per se unjustifiable. However, the case upon which they rely, Francis v.
Gaylord Container Corp., 837 F. Supp. 858 (S.D. Ohio 1992), is a "reasonable reliance" case of
promissory estoppel, not a "justifiable reliance" case of misrepresentation. Justifiable reliance is

4

These plaintiffs are: Isidro Baricuatro, Jose Espiritu, Ferdinand Garcia, Angelo
Nalzaro, Cornelio Ingco, Rufino Orlanes, Francisco Villanueva, and Rosauro Dimalanta.
5

Rec. Doc. 607-13.
7

less strict than the objective reasonable man standard, as the Supreme Court explained in Field v.
Mans, 516 U.S. 59 (1995): "Although the plaintiff's reliance on the misrepresentation must be
justifiable ... this does not mean that his conduct must conform to the standard of the reasonable
man. Justification is a matter of the qualities and characteristics of the particular plaintiff, and
the circumstances of the particular case, rather than of the application of a community standard
of conduct to all cases." Id. at 70-71 (quoting the RESTATEMENT (SECOND) OF TORTS). Here,
Espiritu and Dimalanta attest that they were not familiar with the laws of residency or the
process for obtaining a green card, and they believed what they were told. See Rec. Docs. 607-3,
607-4. Especially given the plaintiffs' backgrounds and language barriers, the Court cannot
conclude that these two plaintiffs' reliance was unjustifiable as a matter of law.
The defendants also argue that the misrepresentation claims of Espiritu and Dimalanta
are prescribed as a matter of law. However, the Court finds that the record would support a
reasonable jury in finding in favor of Espiritu and Dimalanta on this issue. The doctrine of
contra non valentem "prevents the running of liberative prescription where the cause of action is
not known or reasonably knowable by the plaintiff." Becker v. Murphy Oil Corp., 70 So. 3d 885,
911 (La. Ct. App. 2011) (quoting Cole v. Celotex Corp., 620 So. 2d 1154, 1156 (La. 1993)).
Thus, prescription " 'commences when the plaintiff obtains actual or constructive knowledge of
facts indicating to a reasonable person that he or she is the victim of a tort.' " Watters v. Dep't of
Social Servs., 102 So. 3d 118, 131 (La. Ct. App. 4th Cir. 2012) (quoting Campo v. Correa, 828
So. 2d 502, 510 (La. 2002). It "does not run against a plaintiff who is unaware of the facts upon
which [his] cause of action rests unless his ignorance is willful, negligent or unreasonable." Id.

8

Here, although the declarations of Espiritu and Dimalanta suggest that the promises and
statements regarding green card eligibility were made in 2006 and/or 2007, they also attest that
they did not realize until their employment ended in 2011 that the defendants "had lied." Rec.
Doc. 607-4. The defendants argue in their reply memorandum that the Court should disregard
these statements because they are "self-serving" and, as such, do not constitute competent
summary judgment evidence. See Rec. Doc. 619 at 13-14 of 17. However, testimony is not
excludable merely because it is self-serving. C.R. Pittman Const. Co., Inc. v. National Fire Ins.
Co. of Hartford., 453 Fed. Appx. 439, 443 (5th Cir. 2011) ("If all 'self-serving' testimony were
excluded from trials, they would be short indeed."). Id. "Instead, an affidavit based on personal
knowledge and containing factual assertions suffices to create a fact issue, even if the affidavit is
arguably self-serving." Id. Nor is this a case where in the face of overwhelming evidence to the
contrary, the non-moving party's only evidence is a vague or conclusory affidavit. See, e.g.,
Burrle v. Plaquemines Parish Gov't, 553 Fed. Appx. 392, 394-95 (5th Cir. 2014). Espiritu and
Dimalanta are competent to testify about their lack of knowledge, and the defendants have failed
to show that their failure to apprehend the misrepresentation earlier was unreasonable as a matter
of law. Thus, as to Espiritu and Dimalanta, as to the green card/residency representations only,6
the motion will be denied. It is granted in all other respects.

6

Espiritu also attests that he was told he would have free housing. Rec. Doc. 607-3.
However, he attests that it was IPAMS that made this representation, not any of the remaining
defendants. Id.
9

C.

The Motion for Partial Summary Judgment on Plaintiffs' Breach of Contract
and Implied Duty of Good Faith and Fair Dealing Claims (Rec. Doc. 628):

The defendants seek to dismiss and/or limit the plaintiff's state-law breach of contract
claims on several grounds: (1) the plaintiffs should be judicially estopped from seeking FLSA
remedies as part of their breach of contract claims because they have expressly confined such
claims to "straight time" only; (2) the plaintiffs' claim for breach of contract, insofar as it seeks
the payment of unpaid wages, is subject to a three-year prescriptive period, and claims for earlier
periods are time-barred; (3) the plaintiffs have failed to identify the specific provisions of the
contracts that were allegedly breached; and (4) certain plaintiffs have undercut their breach of
contract claim by testifying in their depositions that the defendants did not breach their contracts
or that they were unaware of the basis of their breach of contract claim. The defendants also
argue that claims for breach of the implied duty of good faith are subject to a one-year
prescriptive period.
The Court agrees with the defendants that the plaintiff's have expressly confined their
breach of contract claims to seek "straight time" pay only, not minimum wage or overtime. See
Rec. Doc. 517 at 20 of 72. Moreover, even if the plaintiffs had not judicially admitted this point,
the Court has held already that the FLSA preempts the plaintiffs' state law breach of contract
claims to the extent that they seek to enforce rights arising under FLSA (i.e., the rights to be paid
overtime and minimum wage). See Rec. Doc. 551 at 26-28. Thus, the plaintiffs' breach of
contract claims are limited to seeking "straight time" wages.

10

However, the Court does not find that the defendants are entitled to judgment as a matter
of law dismissing the breach of contract claims in their entirety. Although a handful of
plaintiffs have made statements in their depositions that could be construed as denouncing or
professing ignorance as to the basis for their individual breach of contract claim, the record is
sufficiently replete with evidence of the plaintiffs' language barriers and unsophisticated
backgrounds that the Court will not construe these statements as waivers of these plaintiffs'
contract claims. Likewise, with regard to the issues of prescription and contra non valentum,
these factors preclude a finding as a matter of law on the present record as to when prescription
began to run as to any particular plaintiff. Motions under Rule 50 may be appropriate on these
issues as the trials of individual claims proceed.
D.

Defendant's Motion for Partial Summary Judgment on Section 1981 Claim
(Rec. Doc. 609):

The plaintiffs allege that they were discriminated against by GIS in several conditions of
their employment because of their race, i.e., Filipino or Asian Pacific Islander. Specifically, they
claim that: (1) GIS paid Caucasian American employees time-and-a-half for overtime, but did
not pay time-and-a-half for overtime worked by Filipino workers; (2) GIS did not restrict the
movements of off-duty Caucasian American employees, whereas off-duty Filipino workers were
not allowed to leave GIS facilities without supervision; (3) GIS required Filipino workers to
perform menial tasks (e.g., shoveling mud, working in the scrap yard, or working in a restaurant
owned by a GIS executive) and personal servitude (e.g., mowing the grass, washing cars, and
babysitting) for GIS executives on a regular basis, whereas Caucasian American employees were
not required to render personal services to GIS executives and were rarely required to perform
menial tasks; (4) GIS did not debit the wages of Caucasian American employees for meals, tools,
11

or being allowed to bunk in the GIS bunkhouse, as it did for Filipino workers; and (5) GIS
segregated its bunkhouse according to race, with Filipino, African-American, and Caucasian
workers housed in separate quarters. GIS seeks to dismiss the race discrimination claims on
grounds (1) that it is not the plaintiffs' "employer" for purposes of 42 U.S.C. § 1981, and (2) that
the plaintiffs cannot meet their burden of proving race discrimination under applicable law.
"Claims of racial discrimination in employment, pursuant to 42 U.S.C. § 1981 ..., are
governed by the same analysis as that employed for such claims under Title VII." Hudson v.
Cleco Corp., 539 Fed. Appx. 615, 619 (5th Cir. 2013) (quoting DeCorte v. Jordan, 497 F.3d 433,
437 (5th Cir. 2007)). Where a claim of discrimination is based on circumstantial evidence, the
court applies "the familiar McDonnell Douglas burden-shifting analysis." Id. (quoting Davis v.
Dall. Area Rapid Transit, 383 F.3d 309, 316–17 (5th Cir. 2004) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)).
To survive summary judgment under McDonnell Douglas, the plaintiff must first
present evidence of a prima facie case of discrimination. If the plaintiff presents a
prima facie case, discrimination is presumed, and the burden shifts to the employer
to articulate a legitimate, nondiscriminatory reason for the underlying employment
action. If the employer is able to state a legitimate rationale for its employment
action, the inference of discrimination disappears and the plaintiff must present
evidence that the employer's proffered reason was mere pretext for racial
discrimination.

Id. (quoting Davis, 383 F.3d at 317). "To establish a prima facie case of discrimination, a
plaintiff must demonstrate that he: '(1) is a member of a protected group; (2) was qualified for
the position at issue; (3) was discharged or suffered some adverse employment action by the
employer; and (4) was replaced by someone outside his protected group or was treated less
favorably than other similarly situated employees outside the protected group.' " Id. (quoting
McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007)).
12

To prevail on a hostile work environment claim, a plaintiff must establish that: "(1) he
belongs to a protected group, (2) he was subjected to unwelcome harassment, (3) the harassment
complained of was based on race, (4) the harassment complained of affected a term, condition,
or privilege of his employment, and (5) the employer knew or should have known of the
harassment and failed to take prompt remedial action." Burrle v. Plaquemines Parish Gov't, 553
Fed. Appx. 392, 394 (5th Cir. 2014) (quoting Barkley v. Singing River Elec. Power Ass'n, 433
Fed. Appx. 254, 258 (5th Cir. 2011)).
GIS argues half-heartedly that the plaintiffs' section 1981 claims fail because they cannot
establish a contractual relationship with GIS.7 The plaintiffs' contracts, GIS argues, are with the
recruiting agencies in the Philippines, not with GIS. After two years of extensive motion
practice, the Court is now quite familiar with the employment contracts and the arrangements
between GIS and the Philippines recruiting agencies. There is ample evidence in the record to
support a finding that the plaintiffs were recruited to work as employees of GIS. The plaintiffs
reported daily to a GIS supervisor, who controlled all aspects of the plaintiffs' work — the hours
and shifts worked, the assigned location of their work, the tasks to be performed, and the
procedures to be followed. The record would support a reasonable jury in finding that a
contractual relationship existed between GIS and the plaintiffs for purposes of section 1981.

7

Section 1981 provides that "[a]ll persons within the jurisdiction of the United States
shall have the same right...to make and enforce contracts...as is enjoyed by white citizens...." 42
U.S.C. § 1981(a). The term "make and enforce contracts" is defined to include "the making,
performance, modification, and termination of contracts, and the enjoyment of all benefits,
privileges, terms, and conditions of the contractual relationship." 42 U.S.C. § 1981(b). "Any
claim brought under § 1981, therefore, must initially identify an impaired 'contractual
relationship'...under which the plaintiff has rights." Domino's Pizza, Inc. v. McDonald, 546 U.S.
470, 476 (2006).
13

There is also sufficient evidence to support a reasonable jury in finding that GIS
intentionally treated the plaintiffs less favorably than similarly situated Caucasian employees and
did so because of their race. For the most part, GIS quibbles with the plaintiffs' evidence of
disparate treatment. For example, GIS points to: (1) evidence that on certain occasions an
"American" employee did work in the scrap yard or in a restaurant owned by a GIS executive;
and (2) the depositions of two plaintiffs who testified that they preferred bunking with other
Filipinos because they were neater and less noisy than Americans. Yet, while this evidence
surely will be weighed by the jury against the plaintiffs' considerable evidence of disparate
treatment, such weighing of evidence is no business of the Court's on summary judgment.8
GIS also argues that it had a legitimate, non-discriminatory reason for certain of the
alleged disparate treatment. Specifically, it argues: (1) that it was justified in the failure to pay
Filipino workers time-and-a-half for overtime because these workers were subject to contracts
mandated by the Philippines government; and (2) that its deduction of housing expenses was
justified because the Filipino workers were in the country on E-2 or H-2B visas. However, it

8

"In resolving the motion, the court may not undertake to evaluate the credibility of the
witnesses, weigh the evidence, or resolve factual disputes; so long as the evidence in the record
is such that a reasonable jury drawing all inferences in favor of the nonmoving party could arrive
at a verdict in that party's favor, the court must deny the motion." Int'l Shortstop, Inc. v. Rally's,
Inc., 939 F.2d 1257, 1263 (5th Cir. 1991) (citing Liberty Lobby, 477 U.S. at 255), cert. denied,
502 U.S. 1059 (1992) ("Credibility determinations, the weighing of the evidence, and the
drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether
he is ruling on a motion for summary judgment or for a directed verdict. The evidence of the
non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.").
"Indeed, even if the moving party comes forward with an abundance of evidence supporting its
theory of the case, the nonmoving party may nevertheless defeat the motion by countering with
evidence of its own, which, if credited by the fact-finder, would entitle the nonmoving party to a
verdict in its favor." Id. at 1263.
14

fails to explain how the POEA contract or the plaintiffs' visa status dictated the disparate
treatment. Moreover, the plaintiffs' visa status and POEA contracts would appear to have no
bearing on the other alleged acts of discrimination (e.g., racially segregating the bunkhouse and
requiring Filipinos to perform menial tasks and render personal services to GIS executives).
Drawing all reasonable inferences in the plaintiffs' favor, the Court finds that a jury could
reasonably find for the plaintiffs on the race discrimination claim. Accordingly, this motion will
be denied.
E.

The Motion for Partial Summary Judgment on Damages (Rec. Doc. 635):

Finally, the defendants move to dismiss three categories of damages: (1) compensation
for hours worked performing menial tasks and rendering personal services to GIS executives; (2)
improperly withheld tax returns; and (3) improper deductions for housing. In short, the
defendants argue that the plaintiffs ultimately received the amounts they were owed under their
contracts regardless of where they worked or the nature of the work performed, regardless of
whether the defendants withheld their tax refunds, and regardless of whether deductions were
made for housing. The defendants' argument appears to be that these individual items of
damages should be disregarded because the net effect of the defendants' payroll decisions did not
amount to an overall net pay of less than the contractual amount owed. To state it colloquially,
it all came out in the wash. The Court disagrees that this is a valid basis for judgment as a matter
of law at this stage. While this argument certainly may be made at trial with respect to
individual plaintiffs, each of these three items of damages are appropriate considerations in
determining whether a plaintiff was paid the proper amounts under his contract and/or under the
FLSA. Accordingly, the motion is denied.

15

III.

CONCLUSION:
Accordingly, for the foregoing reasons, IT IS ORDERED that:
(1)

The Motion for Partial Summary Judgment on Plaintiffs' Purported Tax
Refund Claim, filed by D&R Resources, LLC, Danilo Dayao, and Randolf
Malagapo (Rec. Doc. 583) is GRANTED IN PART, in that it is granted as
to the claims against Danilo Dayao and Randolf Malagapo, and DENIED IN
PART, in that it is denied as to the claims against D&R Resources, LLC;

(2)

The Motion for Partial Summary Judgment on Plaintiffs' Purported Tax
Refund Claim, filed by Grand Isle Shipyard, Inc. (Rec. Doc. 586) is hereby
GRANTED;

(3)

The Motion for Partial Summary Judgment on Plaintiffs' Misrepresentation
Claims (Rec. Doc. 585) is hereby DENIED IN PART, in that it is denied as
to the claims of Jose Espiritu and Rosauro Dimalanta, and GRANTED IN
PART, in that it is granted in all other respects;

(4)

The Motion for Partial Summary Judgment on Plaintiffs' Breach of Contract
and Implied Duty of Good Faith and Fair Dealing Claims (Rec. Doc. 628) is
hereby GRANTED IN PART, in that the plaintiffs' breach of contract and
bad faith claims shall be dismissed to the extent that they are based on rights
arising under the FLSA, and DENIED IN PART, in that it is denied in all
other respects;

(5)

Defendant's Motion for Partial Summary Judgment on Section 1981 Claim
(Rec. Doc. 609) is hereby DENIED;

16

(6)

The Motion for Partial Summary Judgment on Damages (Rec. Doc. 635) is
hereby DENIED; and

(7)

The following claims are hereby DISMISSED:
(a)

Plaintiffs' claims against Grand Isle Shipyard, Inc., Danilo Dayao,
and Randolf Malagapo, for retaining plaintiffs' tax refunds;

(b)

Plaintiffs' claims for negligent and intentional misrepresentation,
except for the claims of Jose Espiritu and Rosauro Dimalanta for
misrepresentations relating to green cards and/or permanent
residency;

(c)

Plaintiffs' claims for breach of contract and implied duty of good faith
and fair dealing to the extent that they are based on rights arising
under the FLSA.

New Orleans, Louisiana, this 7th day of July, 2014.

____________________________________
KURT D. ENGELHARDT
UNITED STATES DISTRICT JUDGE

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