Aponte v. Texas Health Presbyterian Hospital

Filing 54

ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE, for 10 Motion for Summary Judgment, filed by Texas Health Presbyterian Hospital, 34 Report and Recommendation. Having considered Defendant's timely object ions (Dkt. #35), Plaintiff's response (Dkt. #41), and having conducted a de novo review, the court is of the opinion that the findings and conclusions of the Magistrate Judge are correct and adopts the Magistrate Judge's report (Dkt. # 34) as the findings and conclusions of the court. Accordingly, it is ORDERED that Defendant's motion for summary judgment on the common law fraud claim is GRANTED. Further, it is ORDERED that Defendant's motion for summary judgment on the FLSA overtime compensation claim, FLSA willfulness claim, and FLSA retaliation claim are DENIED. Signed by Judge Ron Clark on 12/29/2016. (kls, )

**NOT FOR PRINTED PUBLICATION**
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
FLOR ALBA APONTE,
Plaintiff,
v.
TEXAS HEALTH PRESBYTERIAN
HOSPITAL,
Defendant.

§
§
§
§
§
§
§
§
§
§

CIVIL ACTION NO. 4:15-CV-00422
(Judge Clark/Judge Johnson)

ORDER ADOPTING REPORT AND
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Came on for consideration the report of the United States Magistrate Judge in this action,
this matter having been heretofore referred to Magistrate Judge Kimberly Priest Johnson
pursuant to 28 U.S.C. § 636. On November 7, 2016, the report of Magistrate Judge Johnson
(Dkt. #34) was entered containing proposed findings of fact and recommendations that
Defendant’s motion for summary judgment (Dkt. #10) should be granted in part and denied in
part. Defendant filed objections to the portions denying summary judgment (Dkt. #35).
Having reviewed the report of the Magistrate Judge (Dkt. #34), considered Defendant’s
timely filed objections (Dkt. #35), and conducted a de novo review, the court is of the opinion
that the findings and conclusions of the Magistrate Judge are correct and the objections are
without merit as to the ultimate findings of the Magistrate Judge. The court hereby adopts the
Magistrate Judge’s report (Dkt. #34) as the findings and conclusions of the court.

1

FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Flor Alba Aponte began her employment with Defendant Texas Health
Presbyterian Hospital’s predecessor, Denton Community Hospital, on January 24, 2005, and
continued to work at the same facility as an employee of Defendant until April 21, 2015. See
Dkt. #10 at 7. Plaintiff alleges she worked at least fifty (50) hours a week and Defendant failed to
record and pay her for overtime hours. See Dkt. #25 at 11. On April 21, 2015, Plaintiff was
formally terminated from her position. See Dkt. #10 at 23.
Plaintiff filed her original petition in the 2nd District Court of Denton County, Texas, on
May 20, 2015, asserting causes of action against Defendant for unpaid overtime compensation
under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, retaliation under the FLSA, and
common law fraud. See Dkt. #3 at 4-5. The case was removed to federal court on June 24, 2015
(Dkt. #1). On April 14, 2016, Defendant filed its First Motion for Summary Judgment (Dkt.
#10). Plaintiff filed her response on July 14, 2016 (Dkt. #25), after the Court granted an
extension to respond (Dkt. #24). Defendant filed its reply to Plaintiff’s response on July 28, 2016
(Dkt. #31).
On November 7, 2016, the Magistrate Judge entered a report and recommendation (Dkt.
#34). The Magistrate Judge recommended that the court grant summary judgment on Plaintiff’s
claim for common law fraud. See Dkt. #34 at 13. Further, the Magistrate Judge recommended
that the court deny summary judgment on Plaintiff’s FLSA overtime compensation claim, FLSA
willfulness claim, and FLSA retaliation claim. See id. at 7, 8, 10. Defendant filed objections to
the portions of the report and recommendation denying summary judgment (Dkt. #35).

2

DEFENDANT’S OBJECTIONS
A party who files timely written objections to a magistrate judge’s report and
recommendation is entitled to a de novo determination of those findings or recommendations to
which the party specifically objects. See 28 U.S.C. § 636(b)(1)(c); FED. R. CIV. P. 72(b)(2)-(3).
Defendant objects that: (1) the Magistrate Judge’s Report and Recommendation contains
incorrect recitations of the facts (Dkt. #35 at 1-4); (2) the Magistrate Judge misconstrues the
applicable law regarding whether an employee’s primary duty was management (Dkt. #35 at 47); (3) the Magistrate Judge misconstrues the applicable law regarding whether an employee’s
suggestions and recommendations regarding employment decisions were given particular weight
(Dkt. #35 at 7-9); (4) the Magistrate Judge misstates the law regarding willfulness and
improperly concluded there is a fact issue regarding this claim (Dkt. #35 at 9-12); and (5) the
Magistrate Judge wrongfully concludes that Plaintiff has stated a prima facie case of retaliation,
which Defendant failed to rebut (Dkt. #35 at 12-14). In summary, the Magistrate Judge’s report
specifically recommends:
(1) There is a genuine issue of material fact as to whether Plaintiff’s primary duty was
management and whether she had hiring and firing authority, or whether her suggestions
about promotion and termination were given particular weight, and Defendant did not
conclusively establish that Plaintiff was exempt from the FLSA overtime compensation
provisions at the summary judgment phase. See Dkt. #34 at 5, 7.
(2) There is a genuine issue of material fact as to whether Defendant willfully violated the
FLSA by failing to keep accurate or complete records of employment. See id. at 8.
(3) There is a genuine issue of material fact as to the retaliation claim regarding whether
Defendant was aware of the alleged complaints before Plaintiff was terminated, and
whether Defendant had a legitimate, nonretaliatory reason for terminating Plaintiff. See
id. at 10.
(4) There is no genuine issue of material fact as to the common law fraud claim and
summary judgment should be granted on this claim. See id. at 13.

3

Defendant’s objections do not state any specific objections as to the findings of the Magistrate
Judge that Plaintiff’s common law fraud claim should be dismissed. See Dkt. #35. The court now
addresses each of Defendant’s objections in turn.
Objection 1: Incorrect Recitations of the Facts
Defendant asserts the Magistrate Judge wrongfully accepted Plaintiff’s affidavit as
factual findings because it was conclusory and speculative. See Dkt. #35 at 1. Defendant cites to
multiple cases in which courts granted summary judgment because a plaintiff provided an
affidavit containing only conclusory and speculative statements to support the plaintiff’s claims.
See Fuller v. Brownsville Indep. Sch. Dist., No. B-13-109, 2016 WL 3932237 (S.D. Tex. July 21,
2016); Jackson v. Advance Auto Parts, Inc., 362 F. Supp. 2d 1323, 1325 (N.D. Ga. 2005); Moore
v. Tractor Supply Co., 352 F. Supp. 2d 1268, 1276 (S.D. Fla. 2004). Defendant further argues
Plaintiff’s affidavit did not provide supporting facts for its numerous conclusions and does not
provide any competent evidence that creates a fact issue. See id. at 3-4. Specifically, Defendant
argues it was improper for the Magistrate Judge to accept the following statements as proper
summary judgment evidence: (1) Plaintiff alleges she spent only ten (10) percent of her time at
work on management tasks; (2) Plaintiff alleges she first orally notified an employee in the
human resources department of her concerns of not receiving overtime compensation when she
applied for the position; (3) Plaintiff alleges she complained to other supervisors in the nutrition
department about her concerns on overtime compensation; and (4) Plaintiff’s allegation that
Cheri Posey, an Aramak supervisor, “bothered” and “sought to humiliate” her for working
overtime. See id. at 4.
Despite Defendant’s arguments that Plaintiff’s statements were not supported by facts,
Plaintiff describes in detail her daily work routine, supporting her argument that she spent only

4

ten (10) percent of her time on management duties. See Dkt. #25-1 at 3, 5-8. Second, Plaintiff’s
statements that she orally notified the human resources department and that she complained to
other supervisors are based on Plaintiff’s personal knowledge. Third, Plaintiff’s allegations that
Ms. Posey “bothered” and “sought to humiliate” her are also supported by Plaintiff’s personal
knowledge. Plaintiff states Ms. Posey made comments about Plaintiff’s wages, further
supporting her allegations. See Dkt. 10-1 at 20. Moreover, Plaintiff’s allegations that Ms. Posey
was aware she “stay[ed] long hours” 1 is supported by Plaintiff’s yearly evaluation report in 2014,
which stated Plaintiff’s overtime “must be pre-approved by Cheri” in the expectations section.
See Dkt. #10-5 at 7. Thus, Plaintiff’s affidavit is not conclusory or speculative.
Although Defendant believes it has conclusively established that it was unaware of
Plaintiff’s complaints about overtime compensation by referring to Plaintiff’s comments that she
did not know why Ms. Posey was discriminating against her, the entire purpose of trial is to
allow the fact-finder to determine Defendant’s true reasons for terminating Plaintiff when there
is conflicting evidence. See Dkt. 10-1 at 21; Honore v. Douglas, 833 F.3d 565, 567 (5th Cir.
1987) (“It is not the function of the trial judge, in ruling on a motion for summary judgment, to
weigh evidence, assess credibility, or determine the most reasonable inference to be drawn from
the evidence. Those are functions of the trier of fact.”). Thus, the Magistrate Judge is correct in
her recitation of facts.
Objection 2: Legal Error as to Determining Employee’s Primary Duty of Management
Defendant argues Plaintiff’s affidavit, even if accepted as true, does not create a factual
dispute because her affidavit is insufficient in opposition to summary judgment and conflicts
with her deposition testimony. See id. at 5. See Dkt. #35 at 4. As previously stated, Plaintiff’s
affidavit is not conclusive or speculative; thus, the Magistrate Judge did not err in regards to this
1

See Dkt. #10-1 at 20.

5

objection. Defendant further argues even accepting Plaintiff’s affidavit as true, there is no factual
dispute because: (1) an employee’s primary duty may be management even if her daily routine
includes nonmanagement duties; and (2) poor performance in an employee’s bona fide executive
position does not turn that position into a nonexempt one. See id. at 5.
First, as Defendant states, an employee’s primary duty may be management even if her
daily routine includes nonmanagement duties. As the Magistrate Judge stated, there is currently a
fact issue as to whether Plaintiff’s primary duty was in fact management. After reviewing all the
relevant motions, responses, and exhibits, the Magistrate Judge found that Defendant failed to
conclusively establish this factor. See Dkt. #34 at 6. Further, Defendant complains that the
Magistrate Judge “almost entirely fails to address these principles.” See Dkt. #35 at 5. However,
the Magistrate Judge found that Plaintiff’s affidavit rebutted Defendant’s evidence and
succeeded in showing a factual dispute. See Dkt. 34 at 6; see also Karropoulos v. Soup du Jour,
Ltd., 128 F. Supp. 3d 518, 533 (E.D.N.Y. 2015) (denying summary judgment even though the
defendant argued the plaintiff’s management duties were more important than his cooking
duties); Alvarado v. Alhanan, Inc., No. 15-21605-Civ-Scola, 2016 WL 759490, at *2 (S.D. Fla.
Feb. 25, 2016) (denying summary judgment when the plaintiff asserted his management duties
constituted ten percent of his work day).
Second, Defendant argues Plaintiff’s alleged poor performance in her position did not
turn her alleged exempt position into a nonexempt one. See Dkt. #35 at 5. However, Plaintiff
alleges she worked at the hospital for at least ten (10) years, and she states the argument that “her
managers and directors repeatedly demanded that she spend more time—indeed, ‘full-time’—
engaging in such managerial activities” did not occur until Ms. Posey became a supervisor. See
Dkt. #10-1 at 19-20. In her past evaluations before Ms. Posey, the evaluator wrote mostly

6

positive remarks on Plaintiff’s reviews. See Dkt. #10-5 at 15-36. Although she received some
reviews stating that Plaintiff “has been working on coaching employees,” most of the reviews
describe Plaintiff as a top or significant performer and states Plaintiff has “done an exceptional
job in representing the Hospital.” See id. This further supports that there is a fact issue incapable
of being decided at the summary judgment phase.
Objection 3: Legal Error as to Employee’s Suggestions and Recommendations Regarding
Employment Decisions
Next, Defendant argues the Magistrate Judge improperly found that there is a fact issue
as to whether Defendant gave Plaintiff’s suggestions and recommendations as to the hiring,
firing, advancement, promotion, or any other change of status of other employees any particular
weight. See Dkt. #35 at 7. Defendant argues the Magistrate Judge improperly found Defendant’s
only evidence under this factor was that Plaintiff was encouraged and required to train, coach,
counsel, and discipline her staff. See id. Contrary to Defendant’s argument, the Magistrate Judge
took into account that Plaintiff herself stated she would coach her employees when they needed
improvement. See Dkt. #35 at 8. What Defendant fails to understand is the Magistrate Judge
found all that of this evidence—including the remarks made in Plaintiff’s evaluations to “get
firm with her staff” and “hold her staff accountable”—is not enough to conclusively establish
that Defendant gave particular weight to her suggestions and recommendations as to the change
of status of other employees. See Avarado v. Alhanan, Inc., No. 15-21605-Civ-Scola, 2016 WL
759490, at *2 (S.D. Fla. Feb. 25, 2016) (even when the defendant fired an employee based on
one recommendation made by the plaintiff, this was not enough to conclusively establish the
defendant gave the plaintiff’s suggestions and recommendations any particular weight). After
reviewing the motions, responses, and exhibits, the court finds there is a fact issue as to whether
the fourth factor has been met.
7

Objection 4: Legal Error as to Willfulness Claim
Defendant argues the Magistrate Judge erroneously found that there is a fact issue as to
whether Defendant willfully violated the FLSA. See Dkt. #35 at 9. Specifically, Defendant states
that even if Defendant knew Plaintiff was working more than forty (40) hours per week, it does
not equate to a knowing recordkeeping violation, much less a finding of willfulness. See id.
(citing Brown v. Earth Sound, Inc., 2013 WL 1629194, at *7 (D. Neb. Apr. 16, 2013)).
Willfulness occurs where an employer knew or showed reckless disregard for the matter of
whether its conduct was prohibited by the statute. See Mohammadi v. Nwabuisi, 605 F. App’x
329, 332 (5th Cir. 2015). When an employer fails to keep accurate or complete records of
employment, a court may find that the employer willfully violated the FLSA. See Bingham, 2013
WL 1312563, *14 (E.D. Tex. Mar. 1, 2013). Further, an employer could be found to be acting
willfully if the employer ignores complaints brought to his or her attention. Mohammadi, 605 F.
App’x at 332.
Plaintiff testified that she brought a complaint to the Equal Employment Opportunity
Commission (“EEOC”). See Dkt. #10-1 at 17-18. She further testified that she complained and
voiced her concerns to Defendant about her entitlement to overtime. See id. at 25-26. Further, the
annual evaluation records indicate that Plaintiff’s supervisors knew about Plaintiff’s overtime
hours. See Dkt. #10-5 at 7, 21 (evaluations stated that overtime needs to be approved and that she
fills in wherever needed without complaint, needing to work on overtime). Accordingly, Plaintiff
has established that there is a fact issue on this claim that is better decided by the jury at trial. See
Owen v. Golf & Tennis Pro Shop, Inc., 2010 WL 3941842, at *1 n.1 (E.D. Tex. Oct. 7, 2010);
Karr v. City of Beaumont, Tex., 950 F.Supp. 1317, 1325-26 (E.D. Tex. 1997).

8

Objection 5: Legal Error as to Retaliation Claim
Finally, Defendant asserts Plaintiff did not establish a prima facie case of retaliation. See
Dkt. #35 at 12. The court notes Defendant states that because Plaintiff did not address the
retaliation claim in her response, the court may assume Plaintiff is unopposed and thus waived
the issue. See id. at 12-13. However, Defendant cites to cases in the Fifth Circuit discussing
parties making objections for the first time on appeal when a district court granted summary
judgment. See id. This is not the standard for the district court. When considering a motion for
summary judgment, the district court must look to the full record, including the pleadings,
affidavits, and depositions. See Williams v. Adams, 836 F.2d 958, 961 (5th Cir. 1988) (emphasis
added). Thus, the Magistrate Judge correctly considered the full record on the issue of the
retaliation claim, even though Plaintiff did not specifically respond to Defendant’s motion in her
response.
Further, Defendant argues the Magistrate Judge erroneously concluded that there is a fact
issue as to Plaintiff’s retaliation claim. See id. at 13. Although Defendant argues the Magistrate
Judge improperly considered Plaintiff’s affidavit, the court has already determined Plaintiff’s
affidavit was not conclusory or speculative. Further, Defendant argues it established, and
Plaintiff admitted, that none of the decision makers involving her termination were aware of
Plaintiff’s alleged protected activity until after she was terminated. See id. However, the court
finds Defendant is misrepresenting Plaintiff’s remarks made in her deposition. Plaintiff states she
delivered her complaint letter to “Mr. Stan”—the CEO of Texas Health Resources and Texas
Health Presbyterian Hospital—one (1) hour before the meeting during which she was terminated.
Further, Plaintiff never admits that the decision makers were unaware of her letter. To the
contrary, Plaintiff first states she believed they knew about the letter (see Dkt. #10-1 at 5);

9

however, after further questioning, Plaintiff states she did not have evidence that the decision
makers knew of the letter (see Dkt. #10-1 at 6). Although this seems speculative, the fact that she
handed her complaint letter to “Mr. Stan,” Defendant’s CEO, an hour before her meeting, creates
a fact issue better decided by the jury.
Further, as stated by the Magistrate Judge, a plaintiff’s protective activity does not need
to be documented. See Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1, 15
(2011). Plaintiff states she voiced her concerns to Defendant multiple times before delivering her
formal complaint. Specifically, Plaintiff alleges that she delivered a complaint to the CEO of
Texas Health Resources and Texas Health Presbyterian Hospital, “Mr. Stan,” an hour before she
was terminated; she filed a complaint with the human resources department in October 2014; and
she asked Lori Rios from human resources if she was entitled to overtime when she started
working for Defendant. See Dkt. #10-1 at 5, 18, 25-26. 2 Finally, Defendant argues it had a
legitimate, nonretaliatory reason for terminating Plaintiff based on her poor performance. Again,
this is a better issue for the jury to decide.
CONCLUSION
Having considered Defendant’s timely objections (Dkt. #35), Plaintiff’s response (Dkt.
#41), and having conducted a de novo review, the court is of the opinion that the findings and
conclusions of the Magistrate Judge are correct and adopts the Magistrate Judge’s report (Dkt.
#34) as the findings and conclusions of the court.
Accordingly, it is ORDERED that Defendant’s motion for summary judgment on the
common law fraud claim is GRANTED. Further, it is ORDERED that Defendant’s motion for

2

Plaintiff also vaguely stated in her deposition that she talked with her other managers—Jimmy and Sarah—about
reasons why she was not paid for overtime. See Dkt. #10-1 at 26.

10

summary judgment on the FLSA overtime compensation claim, FLSA willfulness claim, and
FLSA retaliation claim are DENIED.

So ORDERED and SIGNED this 29 day of December, 2016.

___________________________________
Ron Clark, United States District Judge

11