Garcia v. U Pull It Auto & Truck Salvage Inc et al

Filing 37

Memorandum Opinion and Order: The Court GRANTS Defendant's 30 MOTION for Leave to File Amended Appendix to Motion for Partial Summary Judgment, DENIES Plaintiff's 19 MOTION for Summary Judgment ,and GRANTS Defendant 's 24 MOTION for Summary Judgment. Plaintiff's claim against Defendants is dismissed with prejudice. The Court DENIES as moot 35 Motion to Dismiss for Failure to State a Claim. (See order for specifics) (Ordered by Magistrate Judge David L Horan on 2/4/2016) (mcrd) Modified Judge association on 2/4/2016 (bdb).

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
JUAN GARCIA,

§
§
Plaintiff,
§
§
V.
§
§
U PULL IT AUTO & TRUCK SALVAGE, §
INC., ET AL.,
§
§
Defendants.
§

No. 3:14-cv-3655-BN

MEMORANDUM OPINION AND ORDER
Plaintiff Juan Garcia filed a Motion for Partial Summary Judgment (the
“Plaintiff’s MSJ”) on his claim against Defendants U Pull It Auto & Truck Salvage,
Inc., Behrouz Heydarian, and Asadollah Heydarian (collectively, “Defendants”). See
Dkt. No. 19. Defendants filed their own Motion for Partial Summary Judgment (the
“Defendants’ Cross-MSJ”). See Dkt. No. 24. Defendants also filed a Motion for Leave
to Amend the Appendix to their Cross-MSJ (the “Motion for Leave”). See Dkt. No. 30.
And, on January 29, 2016, Defendants filed an untimely and unauthorized
Motion to Dismiss for Failure to State a Claim (the “Motion to Dismiss”). See Dkt. No.
35; see also Dkt. No. 14 (setting a November 6, 2015 dispositive motion deadline).
For the reasons explained below, the Court grants the Motion for Leave and
Defendants’ Cross-MSJ, denies Plaintiff’s MSJ, dismisses Plaintiff’s claims against
Defendants with prejudice, and denies Defendants’ Motion to Dismiss as moot.

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Motion for Leave and Objections to Summary Judgment Evidence
Defendants submitted the Declaration of Behrouz Heydarian (the “Heydarian
Declaration”) in support of their Cross-MSJ. See Dkt. No. 26-1. Plaintiff objected to
every exhibit attached to the Heydarian Declaration as unauthenticated but did not
object to the declaration itself. See Dkt. No. 27 at ¶ 9. Defendants moved for leave to
amend the Heydarian Declaration to ensure “compliance with the rules of evidence and
proper authentication of Defendants’ exhibits.” Dkt. No. 30 at ¶ 6; Dkt. No. 30-1 at ¶
1.1.
A party properly supports a fact by citing to competent summary judgment
evidence, but unauthenticated documents are not competent evidence. See FED. R. CIV.
P. 56(c)(1); King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994). The Court may permit a
party to properly support or address a fact that the party has previously failed to
properly support. See FED. R. CIV. P. 56(e)(1).
Plaintiff did not address why Defendants’ Motion for Leave should be precluded
under Rule 56(e)(1). See Dkt. No. 31. The Court therefore GRANTS the Motion for
Leave and considers the amended Heydarian Declaration. See Carter v. Luminant
Power Servs. Co., No. 3:10-cv-1486-L, 2011 WL 6090700, at *6 n.9 (N.D. Tex. Dec. 6,
2011).
In his amended declaration, Behrouz Heydarian made statements on his
personal knowledge, under penalty of perjury, and in his capacity as President of
[Defendant] U Pull It Auto & Truck Salvage, Inc (“UPI”). Dkt. No. 33-1 (“Heydarian
Decl.”) at ¶ 1, 3. An affidavit or declaration, made under penalty of perjury pursuant
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to 28 U.S.C. § 1746, can adequately support a motion for summary judgment when it
is made on personal knowledge and shows that the affiant or declarant is competent
to testify on the matters stated. See FED. R. CIV. P. 56(c)(4). Behrouz Heydarian’s
position of UPI’s President supports the inference that he has personal knowledge of
his employees’ – including Plaintiff’s – wages and pay rates. See Fed. Sav. & Loan Ins.
Corp. v. Griffin, 935 F.2d 691, 702 (5th Cir. 1991) (an affiant’s position in a company
affords them with personal knowledge about some practices); see also In re Kaypro, 218
F.3d 1070, 1075 (9th Cir. 2000) (explaining that “[p]ersonal knowledge may be inferred
from a declarant’s position”).
Plaintiff objects to Exhibits 1, 2, 3, 5, 7, 9, and 12 to the amended Heydarian
Declaration as unauthenticated. See Dkt. No. 32 at 3-4; see also Dkt. Nos. 26-2, 26-3,
26-4, 26-5,26-6, 26-8, 26-11, 26-13, & 26-18. As a matter of efficiency, the Court will
only take up the objections to evidence on which the Court relies on in making its
decision on Plaintiff’s MSJ and Defendants’ Cross-MSJ, but the Court will grant
Defendants leave to submit the revised Heydarian Declaration to correct the reference
to Bank of America. Compare Dkt. No. 30-1 at ¶ 2; Dkt. No. 32 at 1, 3-4, with
Heydarian Decl. at ¶ 2; Dkt. No. 33-1 at 1.
At the time that the Court relies on evidence to which Plaintiff objects, the Court
will address the objections. If the Court relies on evidence and an objection to that
evidence is not discussed, the Court considered both the evidence proffered and
Plaintiff’s objections, and, to the extent the Court regarded portions of the evidence as
relevant, admissible, and necessary to the resolution of particular summary judgment
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issues, overruled those objections. To the extent that the Court does not rely on
evidence about which Plaintiff complains is not authenticated, the objections are
denied as moot.
Background
Plaintiff worked for Defendants from 2010 through 2014 as a nonexempt
employee. See Dkt. No. 1 at ¶ 9; Heydarian Decl. at ¶ 4. Defendants paid its nonexempt
employees hourly. See Dkt. No. 20-3 (“Heydarian Depo.”) at 9:13-18. Behrouz
Heydarian testified that UPI’s employees generally worked and were paid for forty
regular hours and eleven overtime hours each week. Id. at 11:14-15, 11:18-22, 14:13-18.
Behrouz Heydarian also stated that Defendants deducted pay for hours employees did
not work. See id. at 12:13-20.
Plaintiff’s regular hourly rate was initially $11.00, making his overtime rate
$16.50. See Heydarian Decl. at ¶ 11; 29 U.S.C. § 207(a)(1) (overtime rate calculated as
time-and-a-half of employee’s regular rate). Defendants eventually raised Plaintiff’s
regular rate to $12.00 an hour, making his overtime rate $18.00 an hour. See
Heydarian Decl. at ¶ 11.
Plaintiff generally worked forty regular hours and eleven hours of overtime and
was usually paid $621.50 or $678.00. See Dkt. No. 20-1 (“Garcia Decl.”) at ¶¶ 3-6;
Heydarian Decl. at ¶¶ 9, 11. Plaintiff did not work for Defendants from February 1
through May 24, 2013, and there are no payment records for that period. See Garcia
Decl. at ¶ 5. Plaintiff worked forty regular and five overtime hours during September

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8 through September 14, 2013 and netted $458.53. See Heydarian Decl. at ¶ 10; Dkt.
No. 26-9 at 27.
Plaintiff filed this action against Defendants alleging that they willfully violated
the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (the “FLSA”), and seeks actual
and compensatory damages, liquidated damages, attorneys’ fees, and court cost
pursuant to 29 U.S.C. § 216. See Dkt. No. 1 at ¶¶ 12-15.
Plaintiff moves for partial summary judgment on his claims, asserting that
Defendants violated the FLSA by paying him a fixed amount of compensation each
week regardless of the hours that he worked. See Dkt. No. 20 at 29. Defendants
respond that they did not pay Plaintiff a fixed amount of compensation but instead
paid him for the hours that he actually worked. See Dkt. No. 28 at ¶ 8.
Defendants filed their own Cross-MSJ, asserting that Plaintiff’s claim fail as a
matter of law because he presents no evidence that shows he was improperly
compensated under the FLSA. See Dkt. No. 25 at 1.
Defendants have also untimely moved to dismiss Plaintiff’s action for failing to
state a claim. See Dkt. No. 35.
Legal Standards
Under Federal Rule of Civil Procedure 56, summary judgment is proper “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). A factual “issue is
material if its resolution could affect the outcome of the action.” Weeks Marine, Inc. v.
Fireman’s Fund Ins. Co., 340 F.3d 233, 235 (5th Cir. 2003). “A factual dispute is
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‘genuine,’ if the evidence is such that a reasonable [trier of fact] could return a verdict
for the nonmoving party.” Crowe v. Henry, 115 F.3d 294, 296 (5th Cir. 1997).
If the moving party seeks summary judgment as to his opponent’s claims or
defenses, “[t]he moving party bears the initial burden of identifying those portions of
the pleadings and discovery in the record that it believes demonstrate the absence of
a genuine issue of material fact, but is not required to negate elements of the
nonmoving party’s case.” Lynch Props., Inc. v. Potomac Ins. Co., 140 F.3d 622, 625 (5th
Cir. 1998). “Once the moving party meets this burden, the nonmoving party must set
forth” – and submit evidence of – “specific facts showing a genuine issue for trial and
not rest upon the allegations or denials contained in its pleadings.” Id.; Little v. Liquid
Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc).
The Court is required to view all facts and draw all reasonable inferences in the
light most favorable to the nonmoving party and resolve all disputed factual
controversies in the nonmoving party’s favor – but only if both parties have introduced
evidence showing that an actual controversy exists. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986); Boudreaux v. Swift Transp. Co., Inc., 402 F.3d 536, 540
(5th Cir. 2005); Lynch Props., 140 F.3d at 625. “Unsubstantiated assertions,
improbable inferences, and unsupported speculation are not sufficient to defeat a
motion for summary judgment,” Brown v. City of Houston, 337 F.3d 539, 541 (5th Cir.
2003), and neither will “only a scintilla of evidence” meet the nonmovant’s burden,
Little, 37 F.3d at 1075. Rather, the nonmoving party must “set forth specific facts
showing the existence of a ‘genuine’ issue concerning every essential component of its
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case.” Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998). If,
“after the nonmovant has been given an opportunity to raise a genuine factual issue,”
“the record, taken as a whole, could not lead a rational trier of fact to find for the
non-moving party, then there is no genuine issue for trial.” DIRECTV, Inc. v. Minor,
420 F.3d 546, 549 (5th Cir. 2005); Steadman v. Texas Rangers, 179 F.3d 360, 366 (5th
Cir. 1999).
The Court will not assume “in the absence of any proof ... that the nonmoving
party could or would prove the necessary facts” and will grant summary judgment “in
any case where critical evidence is so weak or tenuous on an essential fact that it could
not support a judgment in favor of the nonmovant.” Little, 37 F.3d at 1075. “Rule 56
does not impose upon the district court a duty to sift through the record in search of
evidence to support a party’s opposition to summary judgment,” and “[a] failure on the
part of the nonmoving party to offer proof concerning an essential element of its case
necessarily renders all other facts immaterial and mandates a finding that no genuine
issue of fact exists.” Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 164 (5th
Cir. 2006) (internal quotation marks omitted).
If, on the other hand, “the movant bears the burden of proof on an issue, either
because he is the plaintiff or as a defendant he is asserting an affirmative defense, he
must establish beyond peradventure all of the essential elements of the claim or
defense to warrant judgment in his favor.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194
(5th Cir. 1986). The “beyond peradventure” standard imposes a “heavy” burden. Cont’l
Cas. Co. v. St. Paul Fire & Marine Ins. Co., No. 3:04-cv-1866-D, 2007 WL 2403656, at
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*10 (N.D. Tex. Aug. 23, 2007). The moving party must demonstrate that there are no
genuine and material fact disputes and that the party is entitled to summary judgment
as a matter of law. See, e.g., Martin v. Alamo Cmty. Coll. Dist., 353 F.3d 409, 412 (5th
Cir. 2003). On such a motion, the Court will, again, “draw all reasonable inferences in
favor of the non-moving party.” Chaplin v. NationsCredit Corp., 307 F.3d 368, 372 (5th
Cir. 2002).
On cross-motions for summary judgment, the Court reviews each party’s motion
independently, viewing the evidence and inferences in the light most favorable to the
nonmoving party. See Ford Motor Co. v. Tex. Dep’t of Transp., 264 F.3d 493, 498 (5th
Cir. 2001); Jonathan C. v. Hawkins, No. 9:05-cv-43, 2006 WL 3498494, at *5 (E.D. Tex.
Dec. 5, 2006).
Analysis
Plaintiff’s MSJ
All employers covered under the FLSA must pay non-exempt employees at oneand-one-half times their regular hourly rate for all hours worked in excess of forty
hours during one work week. See 29 U.S.C. § 207(a)(1). Section 207(f) of the FLSA is
an exception to the this overtime payment requirement. See 29 U.S.C. § 207(f). Wage
plans under 29 U.S.C. § 207(f) – known as “Belo plans” – guarantee wages, up to sixty
hours, for employees whose hours necessarily fluctuate above and below the forty-hour
cut-off. See id. Belo plans are only available for employees whose duties “necessitate
irregular hours of work.” 29 U.S.C. § 207(f); Donovan v. Brown Equip. & Serv. Tools,
Inc., 666 F.2d 148, 152-53 (5th Cir. 1982); see also 29 C.F.R. § 778.405.
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Although employees with irregular hours do not earn overtime pay after forty
hours of work, Belo plans provide fixed wages to secure such employees against “short”
paychecks in weeks when they work very few hours so that they can operate on a
stable budget. See Donovan, 666 F.2d at 153. “An employer who attempts to invoke the
Belo exception has the burden of showing affirmatively that each of the essential
conditions to the exception are met.” Donovan v. Welex, 550 F. Supp. 855, 856 (S.D.
Tex. 1982).
The evidence does not support Plaintiff’s assertion that his compensation was
fixed. Plaintiff moves for partial summary judgment alleging that Defendants paid him
a fixed amount of compensation regardless of how many hours he worked even though
he did not meet the irregular hours requirement of an acceptable Belo plan. See Dkt.
No. 20 at 6, 13, 16, 28. Plaintiff contends that Defendants’ payment of fixed
compensation constitutes a willful and unreasonable violation of the FLSA and is
without good faith. See id. at 22, 25, and 27.
Although Defendants have the burden of invoking a Belo plan exemption, they
agree that the Belo plan exception is not available in this case. See Dkt. No. 28 at 1;
Welex, 550 F. Supp. at 856. Instead, Defendants assert that they paid Plaintiff timeand-a-half of his regular rate for every overtime hour he worked, not a fixed amount
under a Belo plan. See Dkt. No. 25 at 5.
Nevertheless, Plaintiff insists that Defendants paid him a fixed amount and
argues that he was “never told that [he] was being paid on an hourly basis ... [i]nstead
[he] was told that [he] would receive a set amount of money per week.” Garcia Decl. at
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¶ 4. But these statements only indicate what Plaintiff was told about his compensation
and also fail to mention who provided him with this information.
Therefore, at the very least, Plaintiff’s declarations do not refute Defendants’
assertions regarding his actual hourly compensation and do not establish beyond
peradventure any essential element of his FLSA claim. Further, in the absence of a
showing that they are, for example, an opposing party’s statement under Federal Rule
of Evidence 801(d)(2) or subject to an exception under Federal Rules of Evidence 803,
804, or 807, the statements in Plaintiff’s declaration as to what he was told constitute
inadmissible hearsay to the extent that Plaintiff offered them to prove that he did not
receive an hourly wage. See Snapt Inc. v. Ellipse Commc’ns Inc., 430 F. App’x 346, 352
(5th Cir. 2011).
Plaintiff further hypothesizes that Defendants would have paid him the exact
same amount of compensation whether he worked 45 or 51 hours each week. See Dkt.
No. 20 at 8. But Plaintiff’s hypothetical statement is controverted by evidence showing
that his compensation decreased from his typical weekly pay on weeks in which he
worked less than eleven overtime hours. See Garcia Decl. at ¶¶ 3, 5, 6; Heydarian Decl.
at ¶¶ 7, 10; Dkt. No. 26-9 at 27. For instance, UPI deducted pay for hours Plaintiff did
not work. See Heydarian Dep. at 12:13-20. Further, there is no evidence that Plaintiff
was paid from February 1 through May 24, 2013, the period in which he did not work
at all. See Garcia Decl. at ¶ 5. Also, Plaintiff only netted $458.53 during the week of
September 8 through September 14, 2013 because he worked less than his usual – forty
regular, eleven overtime – hours during that period. See Heydarian Decl. at ¶ 10; Dkt.
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No. 26-9 at 27. Plaintiff also does not argue that the evidence showing that his pay
varied is inaccurate.
The evidence – particularly when taken in favor of Defendants, the non-moving
party – does not establish beyond peradventure that Defendants improperly paid
Plaintiff fixed compensation. Therefore, Plaintiff’s MSJ – which is entirely premised
on the allegation that Defendants paid him a fixed wage – fails.
In light of this conclusion, the Court need not analyze whether Plaintiff is
entitled to summary judgment as to whether Defendants violated the FLSA willfully,
without good faith, or unreasonably by paying Plaintiff a guaranteed wage.
Defendants’ Cross-MSJ
Defendants move for partial summary judgment on this basis that Plaintiff has
not offered any evidence to prove that Defendants failed to properly pay him for
overtime. See Dkt. No. 25 at 1.
“[A]n employee who brings suit for unpaid overtime compensation generally
bears the burden of proving, with definite and certain evidence, that he performed
work for which he was not properly compensated.” Reeves v. Int’l Tel. and Tel. Corp.,
616 F.2d 1342, 1351 (5th Cir. 1980), abrogated on other grounds by McLaughlin v.
Richland Shoe Co., 486 U.S. 128 (1988). If an employer’s time records are inadequate
or inaccurate, an employee must simply prove that “he has in fact performed work for
which he was improperly compensated and ... produce[] sufficient evidence to show the
amount and extent of that work as a matter of just and reasonable inference.”
Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946), superseded by statute
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on other grounds as stated in Integrity Staffing Solutions, Inc. v. Busk, 135 S. Ct. 513,
516 (2014). The burden would then shift to Defendants to come forward with evidence
of the precise amount of work performed or with evidence to negate the reasonableness
of the inference to be drawn from Plaintiff’s evidence. See id. at 688.
Even if Defendants failed to maintain complete and accurate timekeeping
records, Plaintiff has not satisfied his burden to come forward with sufficient evidence
of specific facts showing a genuine issue for trial as to the amount and extent of his
work for Defendants and that he was improperly compensated for that work. See
Anderson, 328 U.S. at 687-88.
Plaintiff only incorporates his argument in support of his own MSJ – that he
received a fixed amount of pay each week – in response to Defendants’ Cross-MSJ. See
Dkt. No. 24 at ¶ 1. Plaintiff has not produced evidence showing a genuine issue for trial
that Defendants improperly paid Plaintiff fixed compensation each week. For the
reasons explained above in connection with Plaintiff’s MSJ, what little evidence
Plaintiff offers is so weak or tenuous on the essential fact of whether Plaintiff worked
hours for which he was not properly paid overtime that it could not support a judgment
in Plaintiff’s favor. See Little, 37 F.3d at 1075. Here, the record, taken as a whole, could
not lead a rational trier of fact to find for Plaintiff, and so there is no genuine issue for
trial. See DIRECTV, 420 F.3d at 549.
While the Court views all facts and draws all reasonable inferences in the light
most favorable to Plaintiff and resolve all disputed factual controversies in Plaintiff’s
favor, it does so only if both parties have introduced evidence showing that an actual
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controversy exists. Plaintiff has not done so, while Defendants have come forward with
evidence in response to which Plaintiff offers only unsubstantiated assertions,
improbable inferences, or unsupported speculation in support of essential elements of
his FLSA claim.
Behrouz Heydarian declares that Defendants initially paid Plaintiff an hourly
rate of $11.00 and an overtime rate of $16.50. See Heydarian Decl. at ¶ 11. He declares
that Defendants later raised Plaintiff’s hourly rate to $12.00 with an overtime rate of
$18.00. See id. Plaintiff asserts that he was never told that he was paid on an hourly
basis and never saw any documents reflecting the fact that he was paid on an hourly
basis and “[i]nstead [he] was told that [he] would receive a set amount of money per
week.” Garcia Decl. at ¶ 4. But Plaintiff does not offer evidence to controvert Behrouz
Heydarian’s factual assertions or create a genuine issue for trial as to, regardless of
what Plaintiff may have been told or understood, how and how much Plaintiff actually
was paid.
Further, Plaintiff admits that he generally worked eleven overtime hours and
was usually paid $621.50 each week, which was later increased to $678.00. See id. at
¶¶ 3-6. While the Court must, in resolving Defendants’ Cross-MSJ, view all facts and
resolve all disputed factual controversies in Plaintiff’s favor, it is not required to draw
unreasonable inferences in favor of Plaintiff. Forty hours of regular time and eleven
hours of overtime at Plaintiff’s initial hourly and overtime rates equals $621.50.
Likewise, forty regular hours and eleven overtime hours at Plaintiff’s increased rate
amounts to $678.00. Consequently, Plaintiff’s typical weekly compensation corresponds
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to the usual hours that he worked. Plaintiff also does not suggest that Defendants
underreported his time or underpaid him during February 1 through May 24, 2013 and
September 8 through September 14, 2013 when he worked less than eleven overtime
hours and received less than his typical compensation. See Garcia Decl. at ¶¶ 3, 5;
Heydarian Decl. at ¶¶ 7, 10; Dkt. No. 26-9 at 27.
There is no basis to draw the inference in Plaintiff’s favor that Plaintiff seeks on
the essential elements of his FLSA claim – that he was paid fixed weekly compensation
under an improper Belo plan – on this record. Because Plaintiff has not provided the
Court with evidence showing a genuine issue for trial that he was improperly
compensated for overtime hours that he worked, summary judgment must be granted
as to his FLSA claim.
Defendants’ untimely Motion to Dismiss will therefore be denied as moot.
Conclusion
The Court GRANTS Defendants’ Motion for Leave to Amend [Dkt. No. 30],
DENIES Plaintiff Juan Garcia’s Motion for Partial Summary Judgment [Dkt. No. 19],
and GRANTS Defendants’ Motion for Partial Summary Judgment [Dkt. No. 24].
Plaintiff Juan Garcia’s claim against Defendants U Pull It Auto & Truck Salvage, Inc.,
Behrouz Heydarian, and Asadollah Heydarian is dismissed with prejudice. The Court
DENIES as moot Defendants’ untimely Motion to Dismiss for Failure to State a Claim
[Dkt. No. 35].
A separate judgment will enter.
SO ORDERED.
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DATED: February 4, 2016

_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE

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