Guerrero Mendoza et al v. Anderton et al

Filing 168

MEMORANDUM OPINION AND ORDER - GRANTING IN PART AND DENYING IN PART 109 MOTION for Summary Judgment filed by Alfredo Guerrero Mendoza, Hermelindo Guerrero Estrada. Signed by Magistrate Judge Amos L. Mazzant on 11/21/2014. (baf, )

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

ALFRED GUERRERO MENDOZA and
HERMELINDO GUERRERO ESTRADA,
on behalf of themselves and others similarly
situated

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v.
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A&A LANDSCAPE AND IRRIGATION, LP §
and DAVID ANDERTON
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CASE NO. 4:12-CV-562
Judge Mazzant

MEMORANDUM OPINION AND ORDER
Pending before the Court is Plaintiffs’ Motion for Partial Summary Judgment (Dkt.
#109). After considering the motion, the responses, and the relevant pleadings, the Court finds
the motion is granted in part and denied in part.
BACKGROUND
Defendant A&A Landscape and Irrigation, L.P. (“A&A”) is a full service landscaping
and irrigation company, which is owned by David Anderton (“Mr. Anderton”). Defendants
employ at least fifty (50), and perhaps as many as one hundred (100), employees to perform
manual labor as landscape laborers.
Plaintiffs contend that they are paid on an hourly basis, record their hours on time sheets,1
and Defendants then use these sheets to calculate the number of hours that Plaintiffs work each
week. Plaintiffs assert that, at the relevant time periods, the time sheets were scanned into the
computer by Blanca Ruiz (“Ms. Ruiz”), who was responsible for totaling daily hours on the time
sheets. After Ms. Ruiz finished calculating the hours reported on the time sheets, Ms. Ruiz then
deleted the time sheets from her computer at the instruction of Mr. Anderton. Defendants’
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Defendants refer to these sheets as day sheets, and contend that these sheets are recorded primarily for insurance
purposes. The Court acknowledges the terminology used by both parties and will refer to these sheets as time sheets
in this motion.
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regular practice is to pay Plaintiffs for the first forty (40) hours worked each week by check.
This amount is calculated by multiplying Plaintiffs’ regular rate of pay by forty (40) hours per
work week. Defendants then pay Plaintiffs an amount of additional compensation in cash.
Plaintiffs allege that this amount appears to be paid “off the books,” and does not reflect time and
a half the regular rate of pay.
Defendants contend that they used the time sheets to determine the hours worked by
A&A’s employees. Defendants argue that the time sheets are completed by the supervisors, and
include travel time to and from various job sites. Defendants assert that these time sheets “are
not, without additional review and analysis, accurate records of the hours worked” (Dkt. #113 at
2). Defendants also argue that Ms. Ruiz was not responsible for calculating the actual hours
worked by A&A’s employees. Defendants assert that their regular practice was to issue biweekly checks to employees for eighty (80) hours at each employee’s regular hourly rate, even
during pay periods when employees had worked fewer than forty (40) hours per week.
Defendants argue that it was their practice during this time to pay employees overtime for hours
worked over forty (40) in each work week in cash, and that these payments were one and one
half times the hourly rate for all hours in excess of forty (40) per work week.
On September 24, 2014, Plaintiffs filed their motion for partial summary judgment on the
issue of liability under the Fair Labor Standards Act (“FLSA”) (Dkt. #109). On October 21,
2014, Defendants filed their response (Dkt. #113). On November 4, 2014, Plaintiffs filed their
reply (Dkt. #133). On November 11, 2014, Defendants filed their sur-reply (Dkt. #146).
LEGAL STANDARD
The purpose of summary judgment is to isolate and dispose of factually unsupported
claims or defenses. See Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). Summary judgment

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is proper if the pleadings, the discovery and disclosure materials on file, and any affidavits
“[show] that there is no genuine issue as to any material fact and that the movant is entitled to
judgment as a matter of law.” FED. R. CIV. P. 56(a). A dispute about a material fact is genuine
“if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The trial court must resolve all
reasonable doubts in favor of the party opposing the motion for summary judgment. Casey
Enters., Inc. v. Am. Hardware Mut. Ins. Co., 655 F.2d 598, 602 (5th Cir. 1981) (citations
omitted). The substantive law identifies which facts are material. Anderson, 477 U.S. at 248.
The party moving for summary judgment has the burden to show that there is no genuine
issue of material fact and that it is entitled to judgment as a matter of law. Id. at 247. If the
movant bears the burden of proof on a claim or defense on which it is moving for summary
judgment, it must come forward with evidence that establishes “beyond peradventure all of the
essential elements of the claim or defense.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th
Cir. 1986). But if the nonmovant bears the burden of proof, the movant may discharge its burden
by showing that there is an absence of evidence to support the nonmovant’s case. Celotex, 477
U.S. at 325; Byers v. Dallas Morning News, Inc., 209 F.3d 419, 424 (5th Cir. 2000). Once the
movant has carried its burden, the nonmovant must “respond to the motion for summary
judgment by setting forth particular facts indicating there is a genuine issue for trial.” Byers, 209
F.3d at 424 (citing Anderson, 477 U.S. at 248-49). The nonmovant must adduce affirmative
evidence. Anderson, 477 U.S. at 257. The Court must consider all of the evidence but refrain
from making any credibility determinations or weighing the evidence. See Turner v. Baylor
Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007).

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ANALYSIS
The FLSA mandates that “no employer shall employ any of his employees… for a
workweek longer than forty hours unless such employee receives compensation for his
employment in excess of the hours above specified at a rate not less than one and one-half times
the regular rate at which he is employed.”

29 U.S.C. § 207(a)(1); Harvill v. Westward

Communications, L.L.C., 433 F.3d 428, 441 (2005).
To prevail on their claim for unpaid overtime, Plaintiffs must first show by a
preponderance of the evidence: “(1) that there existed an employer-employee relationship during
the unpaid overtime periods claimed; (2) that the employee engaged in activities within the
coverage of the FLSA; (3) that the employer violated the FLSA’s overtime wage requirements;
and (4) the amount of overtime compensation due.2” Johnson v. Heckmann Water Resources
(CVR), Inc., 758 F.3d 627, 630 (5th Cir. 2014) (citing Harvill, 433 F.3d at 441)). “An employee
bringing an action pursuant to the FLSA, based on unpaid overtime compensation, must first
demonstrate that [he] has performed work for which [he] alleges [he] was not compensated.”
Harvill, 433 F.3d at 441 (citing Anderson v. Mount Clemens Pottery Co., 328 U.S. 680, 687-88
(1946)).
An employee has carried out his burden if he proves that he has in fact performed
work for which he was improperly compensated and if he produces sufficient
evidence to show the amount and extent of work as a matter of just and
reasonable inference. The burden then shifts to the employer to come forward
with evidence of the precise amount of work performed or with evidence to
negative the reasonableness of the inference to be drawn from the employee’s
evidence. If the employer fails to produce such evidence, the court may then
award damages to the employee, even though the result be only approximate.
Anderson, 328 U.S. at 687-88. The evidence of hours worked need not be perfectly accurate as
long as it provides a sufficient basis to calculate the number of hours worked. Marshall v.
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  Since Plaintiffs have moved for summary judgment on the issue of liability only, the amount of overtime
compensation due is not at issue in this motion.  
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Mammas Fried Chicken, Inc., 590 F.2d 598, 599 (5th Cir. 1979). “If the employer’s records are
‘proper and accurate,’ the employee may rely on these records; if the employer’s records are
‘inaccurate or inadequate,’ the employee may produce ‘sufficient evidence to show the amount
and extent of that work as a matter of just and reasonable inference.’” Rosales v. Lore, 149 F.
App’x 245, 246 (5th Cir. 2005) (internal citation omitted).
“Once the employee establishes a prima facie case, the burden then shifts to the employer
to ‘come forward with evidence of the precise amount of work performed or with evidence to
negative the reasonableness of the inference to be drawn from the employee’s evidence.’”
Johnson, 758 F.3d at 630 (citing Harvill, 433 F.3d at 441). If the employer claims that the
employee is exempt from the overtime requirement, the burden rests with the employer to prove
that the employee falls within the exempted category. Id. (citing Samson v. Apollo Res., Inc.,
242 F.3d 629, 636 (5th Cir. 2001)).
The Court finds that there are several disputed issues of fact pertaining to the amount of
hours worked by Plaintiffs. Plaintiffs contend that the Court does not need to look further than
the time sheets produced by Defendants to determine that Plaintiffs regularly worked more than
forty hours per week. However, Defendants’ evidence indicates that without further information,
the time sheets are not an accurate depiction of the hours actually worked by Plaintiffs. Further,
Defendants’ evidence indicates that it was Defendants’ practice to pay overtime in cash
payments made to individual Plaintiffs. Thus, the Court finds that there is a fact issue regarding
whether Plaintiffs were compensated in accordance with the provisions of the FLSA.
CONCLUSION
Based on the foregoing, the Court finds that Plaintiffs’ Motion for Partial Summary
Judgment (Dkt. #109) is DENIED.

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IT IS SO ORDERED.

SIGNED this 21st day of November, 2014.

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AMOS L. MAZZANT
UNITED STATES MAGISTRATE JUDGE

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