Moody v. Associated Wholesale Grocers, Inc.
Filing
161
ORDER AND REASONS: DENYING 134 Motion for Partial Summary Judgment, as set forth in document. Signed by Judge Jane Triche Milazzo on 09/25/2020. (am)
Case 2:17-cv-10290-JTM-KWR Document 161 Filed 09/25/20 Page 1 of 6
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DE’ON MOODY ET AL.
CIVIL ACTION
VERSUS
NO. 17-10290
ASSOCIATED WHOLESALE
GROCERS, INC.
SECTION: “H”
ORDER AND REASONS
Before the Court is Defendant’s Motion for Partial Summary Judgment
on the issue of Willfulness (R. Doc. 134). For the following reasons, Defendant’s
Motion is DENIED.
BACKGROUND
This is an action for unpaid wages under the Fair Labor Standards Act
(“FLSA”).1 Defendant Associated Wholesale Grocers, Inc. (“AWG”) is a national
food wholesaler that operates a warehouse complex in Pearl River, Louisiana
as part of its distribution network. Plaintiff De’on Moody (“Moody”) worked for
AWG as a salary-earning supervisor from 2012–2016. In 2017, Moody brought
this action against AWG, alleging that AWG misclassified him as an employee
exempt from overtime under the FLSA. This Court originally granted Moody’s
motion to conditionally certify a class of similarly situated individuals but later
1
See 29 U.S.C. § 201 et. seq.
1
Case 2:17-cv-10290-JTM-KWR Document 161 Filed 09/25/20 Page 2 of 6
decertified the collective action on November 14, 2019 and dismissed the
claims of all opt-in plaintiffs without prejudice. On November 26, 2019, the optin plaintiffs filed a separate suit asserting the same cause of action against
AWG.2
AWG currently seeks partial summary judgment, alleging that both
Moody
and the opt-in
plaintiffs
have failed to prove that AWG’s
misclassification of employees was a “willful” violation of the FLSA. As to
Moody, AWG asks that any damages award this Court may render be limited
to those Moody incurred in the two years before Moody filed suit.
LEGAL STANDARD
“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.”3 “As to materiality . . . [o]nly disputes over
facts that might affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.”4 Nevertheless, a dispute
about a material fact is “genuine” such that summary judgment is
inappropriate “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.”5
In determining whether the movant is entitled to summary judgment,
the Court views facts in the light most favorable to the non-movant and draws
all reasonable inferences in his favor.6 “If the moving party meets the initial
burden of showing that there is no genuine issue of material fact, the burden
2
3
4
5
6
See Complaint, Bookhardt et al v. Assoc. Wholesale Grocers, Inc., No. 19-13894 (E.D. La.
2019).
FED. R. CIV. P. 56.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Id. at 248.
Coleman v. Hous. Indep. Sch. Dist., 113 F.3d 528, 533 (5th Cir. 1997).
2
Case 2:17-cv-10290-JTM-KWR Document 161 Filed 09/25/20 Page 3 of 6
shifts to the non-moving party to produce evidence or designate specific facts
showing the existence of a genuine issue for trial.” 7 Summary judgment is
appropriate if the non-movant “fails to make a showing sufficient to establish
the existence of an element essential to that party’s case.” 8
“In response to a properly supported motion for summary judgment, the
nonmovant must identify specific evidence in the record and articulate the
manner in which that evidence supports that party’s claim, and such evidence
must be sufficient to sustain a finding in favor of the nonmovant on all issues
as to which the nonmovant would bear the burden of proof at trial.” 9 The Court
does “not . . . in the absence of any proof, assume that the nonmoving party
could or would prove the necessary facts.”10 Additionally, “[t]he mere argued
existence of a factual dispute will not defeat an otherwise properly supported
motion.”11
LAW AND ANALYSIS
A cause of action for unpaid overtime compensation under the FLSA is
subject to a two-year statute of limitations, “except that a cause of action
arising out of a willful violation may be commenced within three years after
the cause of action accrued.”12 An employee invoking a three-year statute of
limitations has the burden of demonstrating willfulness.13 An employer is
Engstrom v. First Nat’l Bank, 47 F.3d 1459, 1462 (5th Cir. 1995).
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
9 Johnson v. Deep E. Tex. Reg. Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th Cir.
2004) (internal citations omitted).
10 Badon v. R J R Nabisco, Inc., 224 F.3d 382, 393–94 (5th Cir. 2000) (quoting Little v. Liquid
Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).
11 Boudreaux v. Banctec, Inc., 366 F. Supp. 2d 425, 430 (E.D. La. 2005).
12 29 U.S.C. § 255(a).
13 Mohammadi v. Nwabuisi, 605 F. App’x 329, 332 (5th Cir. 2015). The employer, however,
“has the burden of demonstrating good faith and reasonableness to avoid assessment of
liquidated damages.” Id.
7
8
3
Case 2:17-cv-10290-JTM-KWR Document 161 Filed 09/25/20 Page 4 of 6
willful if “the employer either knew or showed reckless disregard for the matter
of whether its conduct was prohibited by the statute.” 14 This standard requires
more than “[m]ere knowledge of the FLSA and its potential applicability . . .
[or] conduct that is merely negligent or unreasonable.”15 Examples of
willfulness include situations where employers “know their pay structures
violate the FLSA or ignore complaints brought to their attention.”16 As
“willfulness is a question of fact, summary judgment in favor of the employer
is inappropriate if the plaintiff has introduced evidence sufficient to support a
finding of willfulness.”17
As evidence of AWG’s willfulness, Moody primarily relies on the
deposition testimony of former salaried employees who testified that they
made several complaints to multiple levels of AWG management during their
employ. AWG argues that the employees’ “vague” complaints “to management
about the hours they worked and pay [they] received” are insufficient to prove
that AWG acted willfully.18 AWG contends that Fifth Circuit precedent
precludes a finding of willfulness because there is no evidence that AWG knew
its practice was unlawful under the FLSA and because no governmental
agency formally noticed AWG of a potential FLSA violation. Although
Defendant is correct that the Fifth Circuit has upheld such evidence as
McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988) (re-emphasizing adherence to
the standard articulated in Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 125–130
(1985)).
15 Zannikos v. Oil Inspections (U.S.A.), Inc., 605 F. App’x 349, 360 (5th Cir. 2015). See also
Mohammadi, 605 F. App’x at 332 (“For example, an employer that “act[s] without a
reasonable basis for believing that it was complying with the [FLSA]” is merely
negligent, as is an employer that, without prior notice of an alleged violation, fails to seek
legal advice regarding its payment practices” (quoting Richland Shoe, 485 U.S. at 132–33)
(internal citations omitted)).
16 Id. (citing Ikossi-Anastasiou v. Bd. of Supervisors of La. State Univ., 579 F.3d 546, 553 (5th
Cir. 2009).
17 Ikossi-Anastasiou, 579 F.3d at 552.
18 Doc. 134-1 at 13 (internal quotations omitted).
14
4
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sufficient to support a finding of willfulness,19 this Court disagrees that such a
showing is requisite to preclude summary judgment in Moody’s favor.20
Rather, this Court finds that Moody has demonstrated a genuine issue
of material fact as to whether AWG was on notice of a potential FLSA
violation.21 Among the many alleged employee complaints, Jeffrey Tait
testified that he forwarded a multitude of complaints to several levels of
management and participated in a ten to fifteen minute sit-down meeting with
David Smith, the now-CEO of AWG, and AWG’s Human Resources Manager,
Floyd Baker.22 Antonio Robinson testified that if he did not accept the
promotion to a salaried position, AWG would preclude him from working
overtime as an hourly employee.23 Additionally, Drexell Ziegler testified that
he specifically complained to management that he should be paid differently
“under the law”24 because he was working more hours, paid less, and “doing
See, e.g., Reich v. Bay, Inc., 23 F.3d 110, 116 (5th Cir. 1994) (affirming a finding of
willfulness when the employer was contacted by the local Wage and Hour office and
informed
that
his
payment
practices
violated
the
FLSA);
Singer v. City of Waco, Tex., 324 F.3d 813, 821 (5th Cir. 2003) (upholding a jury’s finding
of willfulness when the plaintiffs “presented testimony suggesting the City knew its
method of paying the fire fighters violated the FLSA”).
20 See, e.g., Ikossi-Anastasiou, 579 F.3d at 552 (finding Ikossi’s complaints insufficient to
defeat a claim for summary judgment when she could not prove that “LSU actually knew
that the pay structure violated the FLSA, or that LSU ignored or failed to investigate
Ikossi’s complaints” (emphasis added)). See also Bush v. Kadirnet, LLC, No. 1:18-CV-1024RP, 2020 WL 824106, at *5 (W.D. Tex. Feb. 19, 2020) (finding that a genuine issue of fact
precluded summary judgment where plaintiff contended he complained to his supervisors
on multiple occasions and the employer characterized those complaints “as having merely
been about his desire to make more money”); Lagos v. Cogent Commc’ns, Inc., No. CV H11-4523, 2014 WL 12776418, at *12 (S.D. Tex. Mar. 12, 2014) (denying the defendant’s
motion for summary judgment because there was “some evidence that Defendant was
aware its sales practice differed from other companies and that at least one Plaintiff
complained about his classification as exempt based on the differing sales practice”).
21 See Mohammadi, 605 F. App’x at 333 (“Viewing the evidence in the requisite light most
favorable to Resource, whether the action put Resource on notice [of the FLSA violation] is
a genuinely disputed material fact.”).
22 Doc. 140-2 at 15.
23 Doc. 140-22 at 9–10.
24 Doc. 152-17 at 20–21.
19
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Case 2:17-cv-10290-JTM-KWR Document 161 Filed 09/25/20 Page 6 of 6
the same work” as the hourly employees.25 AWG disputes the nature and
existence of many of the employees’ alleged complaints. Viewing the evidence
in a light most favorable to Moody, this Court finds that there is a genuine
issue of material fact as to whether AWG acted with “reckless disregard” for
the FLSA.
CONCLUSION
For the foregoing reasons, Defendant’s Motion for Partial Summary
Judgment (Doc. 134) is DENIED.
New Orleans, Louisiana this 25th day of September, 2020.
____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE
25
Id. at 5, 20–26.
6
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