Adrian-Favela et al v. Empire Scaffold, LLC

Filing 128

MEMORANDUM ORDER overruling objections and adopting 125 Report and Recommendation. Ordered that 43 and 81 Motions for Summary Judgment are granted in part and denied in part, as recommended by Magistrate Judge Giblin. Summary judgment is the refore entered in favor of the defendant on the plaintiffs claims for compensable time spent riding the bus to Motiva, except for the claim asserted by Rene Chaires on this issue, which remains pending. The Court also enters summary judgment for defe ndant on all plaintiffs claims for time spent donning and doffing PPE. Summary judgment is further entered in favor of Empire on the plaintiffs claims for improper timekeeping. Finally,summary judgment is denied on all plaintiffs claims for pre-shift and post-shift compensable time except for the claims of Jesus Alanis, Darwin Bridges, and Rodrigo Gonzales. Empire carried its summary judgment burden on those plaintiffs and their claims are dismissed in their entirety, with prejudice. The Clerk i s directed to terminate Jesus Alanis, Darwin Bridges and RodrigoGonzales as parties. Factual issues exist as to the remainder of the plaintiffs claims for pre-shift and post-shift compensable time. Signed by Judge Marcia A. Crone on 3/24/16. (tkd, )

UNITED STATES DISTRICT COURT

ERNESTO ADRIANO-FAVELA, et al.,
Plaintiffs,
versus

EMPIRE SCAFFOLDING, LLC,
Defendant.

EASTERN DISTRICT OF TEXAS

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CIVIL ACTION NO. 1:13-CV-377

MEMORANDUM ORDER ADOPTING REPORT AND RECOMMENDATION
The Court referred this matter to United States Magistrate Judge Keith F. Giblin for
consideration and recommended disposition of case-dispositive pretrial motions. On March 2,
2016, Judge Giblin issued a report and recommendation in which he recommended that the Court
grant in party and deny in part the parties’ competing motions for summary judgment.
Plaintiffs and defendants filed objections to the magistrate judge’s recommendation. The
plaintiffs object by stating that they produced evidence sufficient for a reasonable jury to find that
their personal protective equipment (PPE) was integral and indispensable to their work on the
Motiva Crude Expansion Project at issue in this case. The plaintiffs also object to Judge Gibln’s
recommended entry of summary judgment against three plaintiffs. He found that those plaintiffs
failed to present evidence entitling them to compensation under the Fair Labor Standards Act
(FLSA).
Defendant Empire Scaffolding, LLC, (“Empire”) objects on several issues. It contends
Judge Giblin erred in finding that the plaintiff Rene Chairs’ claims survive summary judgment.
Defendant argues that Chaires’ claimed non-compensable time is de minimis and incidental to

otherwise non-compensable commute time. It also objects to Judge Giblin’s finding that genuine
issues of material fact exist on a number of plaintiffs’ claims because defendant argues this
finding is based on “unsubstantiated and merely speculative” testimony given by the plaintiffs.
Empire next argues that the magistrate judge failed to consider its argument that plaintiffs cannot
meet their burden under the FLSA to show they worked in excess of 40 hours per workweek.
In conducting a de novo review of the record, the Court finds that the magistrate judge
thoroughly considered the summary judgment evidence. As for the plaintiffs’ objections, Judge
Giblin addressed the specific PPE at issue and did not err in his application of governing Fifth
Circuit and Supreme Court precedent outlining the “integral and indispensable” test in
considering the plaintiffs’ claim for time spent donning and doffing their PPE. See Report, at pp.
13-16. Judge Giblin also discussed Integrity Staffing Solutions, Inc., v. Busk, __U.S.__, 135 S.
Ct. 513, 518 (2014) and Steiner v. Mitchell, 350 U.S. 247 (1956) in his report, which plaintiffs
cite in their objections. The plaintiffs do not explain how Judge Giblin erred in his application
of those cases to the evidence at hand and they offer no additional evidence with their objections
which contradict Judge Giblin’s findings. As discussed in the report, the plaintiffs’ continued
reliance on the fact that defendant required certain PPE as part of a standard safety protocol is
misplaced. The Supreme Court has indicated that the integral and indispensable test turns on
whether the activity at issue is tied to the productive work that the employee is employed to
perform, not whether it was required by the employer. See Busk, 135 S. Ct. at 519. After
considering the record, the Court agrees that the PPE at issue here was not integral and
indispensable to the plaintiffs’ work. Even if it were integral and indispensable, the plaintiffs’
PPE claim does not rise above the level of de minimis because their own testimony shows that

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it took less than five minutes to don and doff this PPE. This ruling is in accordance with this
Court’s findings in related FLSA cases arising out of the Motiva Crude Expansion Project. See
Stanley v. Car-ber, No. 1:13-CV-374 (E.D. Tex. June 29, 2015).
The Court also concludes that Judge Giblin properly considered the record evidence
before recommending that summary judgment be granted in favor of Empire on plaintiffs Jesus
Alaniz, Darwin Bridges, and Rodrigo Garcia. Defendant pointed to undisputed testimony from
those plaintiffs indicating they did not engage in any activities outside of their shift times which
could be compensable under the FLSA. Plaintiffs’ blanket statements regarding Empire’s
requirements that its employees arrive before the start of their shift to ride the transport bus to
the Motiva work site does not alter this outcome. Judge Giblin already addressed the issue of
straight bus time being non-compensable in the Fifth Circuit, and plaintiffs did not object on this
point. The objections do not establish that Judge Giblin erred in recommending summary
judgment based on these plaintiffs’ testimony.

The Court therefore finds that plaintiffs’

objections should be overruled in their entirety.
Turning to Empire’s objections, the Court has considered defendant’s arguments and
concludes that Judge Giblin was correct in finding that genuine issues of material fact exist on
the remaining plaintiffs’ claims for compensable pre-shift and post-shift time. The record
indicates that there are numerous conflicting accounts about what plaintiffs were required to do
by Empire, if anything, prior to the start of their compensable work day at Motiva. As discussed
by the magistrate judge, hundreds of pages of deposition testimony reveal that several plaintiffs
attested to filling out safety paperwork, attending meetings, and performing required calisthenics
prior to the start of their work day. A fact finder could conclude that these are principal activities

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under the FLSA for which plaintiffs should be compensated. Despite Empire’s arguments to the
contrary, the Court finds that the testimony relied on by Judge Giblin sufficiently creates a triable
factual issue on the remaining plaintiffs’ claims for preliminary and postliminary compensable
work activity. The Court also concludes that Judge Giblin did not err in failing to address
whether plaintiffs submitted evidence indicating they in fact performed work in excess of the
required 40 hour workweek. The evidence includes vastly differing versions of what each
plaintiff’s individual work week included and how many “off the clock” hours they spent
engaging in principal work activities. Even though Judge Giblin may not have addressed the
specific 40 hour work week burden of proof upon which Empire now relies, a review of the
evidence does not alter his conclusion that summary judgment in favor of Empire is unwarranted
on the compensable time issue because factual issues remain.
Finally, the defendant presents additional arguments specific to Rene Chaires. Judge
Giblin found that Empire did not carry its summary judgment burden on Chaires’ “bus time”
claims because he offered testimony that he engaged in work-specific phone calls every day while
riding the bus to and from the Motiva work site and then until he arrived at home. Empire’s
summary judgment arguments on this issue were not presented in the detail with which they are
now asserted in the objections, but the Court will briefly address them given the de novo standard
of review.

Empire devotes almost three pages of its objections opposing Judge Giblin’s

interpretation of Chambers v. Sears Roebuck & Co., 428 F. App’x 400 (5th Cir. 2013) (per
curiam), and the “Employment Commute Flexibility Act” (ECFA), which specifically amended
the Portal-to-Portal Act to address discrepancies involving an employee’s use of an employer’s
vehicle while commuting under the Portal-to-Portal Act. See Chambers, 428 F. App’x at 409-10.

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Notably, the parties did not put ECFA at issue in this case until Judge Giblin discussed it in the
context of Chambers in his report. Only now does Empire rely heavily upon the ECFA, its
legislative history, and Department of Labor (DOL) interpretive opinions in an effort to override
Judge Giblin’s recommendation that Chaires’ bus claims survive summary judgment. The Court
finds it unnecessary to engage in a lengthy analysis of the ECFA in this context. Even assuming
that Empire is correct in arguing that the ECFA somehow applies and Chambers is not
distinguishable as held by Judge Gibiln, the Court still concludes that factual issues regarding Mr.
Chaires’ claims preclude summary judgment. Chaires gave fairly extensive testimony indicating
that he received lengthy work calls outside of his normal shift hours almost daily. Empire can
only point to legislative history of the ECFA which merely suggests that these calls could be
considered non-compensable as “incidental” to Chaires’ work commute.

Empire’s own

objections show that there is no clear case law on the issue and the factual circumstances giving
rise to what could be considered merely incidental versus principal and thus compensable can
vary widely and should be determined on a case-by-case basis. The Court concludes that
Chaires’ testimony sufficiently creates a genuine issue of material fact on his claim that he was
not properly compensated for time spent on the bus engaged in actual principal work activities.
Even if Empire is correct in its objection regarding Judge Giblin’s interpretation of Chambers and
the ECFA, the outcome remains unchanged. Chaires’ claims withstand summary judgment
scrunity under either interpretation.
Pursuant to 28 U.S.C. § 636(b)(1), the Court conducted a de novo review of the
magistrate judge’s findings, the record, the specific objections, and the applicable law in this
proceeding. After review, the Court finds that Judge Giblin’s findings should be accepted.

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The Court ORDERS that the plaintiffs’ objections (#126) and defendant’s objections
(#127) to the magistrate judge’s report are OVERRULED. The Court ORDERS that the report
and recommendation (#125) is ADOPTED. It is further ORDERED that the pending motions
for summary judgment (doc. #43, doc. #81) are granted in part and denied in part, as
recommended by Judge Giblin.
Summary judgment is therefore entered in favor of the defendant on the plaintiffs’ claims
for compensable time spent riding the bus to Motiva, except for the claim asserted by Rene
Chaires on this issue, which remains pending. The Court also enters summary judgment for
defendant on all plaintiffs’ claims for time spent donning and doffing PPE. Summary judgment
is further entered in favor of Empire on the plaintiffs’ claims for improper timekeeping. Finally,
summary judgment is denied on all plaintiffs’ claims for pre-shift and post-shift compensable time
except for the claims of Jesus Alanis, Darwin Bridges, and Rodrigo Gonzales. Empire carried
its summary judgment burden on those plaintiffs and their claims are dismissed in their entirety,
with prejudice. The Clerk is directed to terminate Jesus Alanis, Darwin Bridges and Rodrigo
Gonzales as parties. Factual issues exist as to the remainder of the plaintiffs’ claims for pre-shift
and post-shift compensable time.
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SIGNED at Beaumont, Texas, this 7th day of September, 2004.

SIGNED at Beaumont, Texas, this 24th day of March, 2016.

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MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE

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