Frazier v. Dallas/Fort Worth International Airport Board et al
Filing
136
MEMORANDUM OPINION AND ORDER denying 123 Motion for Summary Judgment filed by Dallas/Fort Worth International Airport Board. (Ordered by Judge Karen Gren Scholer on 5/2/2019) (aaa)
United States District Court
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
RONDELL TE FRAZIER, Individually, and
on Behalf of All Others Similarly Situated,
Plaintiff,
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V.
CASE NO. 3:16-CV-2657-S
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DALLAS/FORT WORTH
INTERNATIONAL AIRPORT BOARD,
Defendant.
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MEMORANDUM OPINION AND ORDER
Plaintiff Rondellte Frazier ("Frazier") brings this Fair Labor Standards Act ("FLSA") suit
against Defendant Dallas/Fort Worth International Airport Board ("DFW") for unpaid overtime
wages on behalf of himself and all other Civilian Security Officers jointly employed by DFW and
at least one of the Contractors ("Plaintiffs"). 1 Plaintiff Cynthia Brannon ("Brannon") opted in as
a plaintiff on February 17, 2018. See ECF No. 99. DFW moves for partial summary judgment
with respect to all claims asserted by Brannon, arguing that Brannon's claims fail as a matter of
law because she received premium pay for work performed outside of her regular work hours at a
fixed rate that was at least one and one-halftimes her regular rate. For the reasons that follow, the
Court denies DFW's Motion.
I. BACKGROUND
Per Special Order 3-3-18, this case was transferred from the docket of Chief Judge Barbara
M.G. Lynn on March 8, 2018, to the docket of this Court.
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The Contractors are terminated Defendants Manhattan/Byrne/JRT/3i ("MBJ3"), Wells Global, LLC ("Wells
Global"), EAS Contracting, LP ("EAS"), Haydon Building Corp. ("Haydon"), Phillips/May Corporation ("Phillips"),
and Balfour Beatty Construction Corporation ("Balfour"). First Am. Comp!. I.
Plaintiffs are employed by DFW as Civilian Security Officers for the Dallas/Fort Worth
International Airport (the "Airport"). First Am. Comp!.,, 31, 33-34. DFW contracted with the
Contractors to construct an updated airport terminal at the Airpoti. Id. , 32. Plaintiffs were
allegedly jointly employed by DFW and the Contractors to provide security services for the Airport
and the construction site. See id. ,, I, 30, 35-36, 52, 59, 63. Plaintiffs explicitly deny that they
were employed by each of the Contractors as "independent contractors." Id., 55.
While performing security services as employees of DFW, Plaintiffs are allegedly
considered to be performing "on duty" security services. Id. , 35. While performing security
services for the Contractors, Plaintiffs are allegedly considered to be performing "off duty"
security services. Id. Plaintiffs claim that the arrangement for Plaintiffs to work some hours for
DFW and some hours for the Contractors is a sham and was developed by DFW and each of the
Contractors to, among other things, avoid paying overtime wages. Id. , 43.
Plaintiffs a11egedly work 40 hours per week performing security services as employees of
DFW, as we11 as an additional number of hours per week for one or more of the Contractors. Id.
, 63. Plaintiffs allege that when the hours they are assigned by DFW are combined with the hours
they are assigned by the respective Contractors, Plaintiffs regularly work in excess of 40 hours a
week, but they are not paid at an overtime rate for the combined hours. Id. , 64. According to
Plaintiffs, Plaintiffs are not paid time-and-one-half their regular rate of pay for the hours worked
over 40 hours a week because DFW and the Contractors count the "on duty" work and the "off
duty" work as separate jobs. Id., 65.
II. LEGAL STANDARD
Courts "sha11 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." Fed. R. Civ. P.
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56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242,247 (1986), In making this determination,
courts must view all evidence and draw all reasonable inferences in the light most favorable to the
party opposing the motion, United States v. Diebold, Inc., 369 U.S. 654, 655 (1962), The moving
party bears the initial burden of informing the court of the basis for its beliefthatthere is no genuine
issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986),
When a party bears the burden of proof on an issue, she "must establish beyond
peradventure all of the essential elements of the claim or defense to warrant judgment in [her]
favor," Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir, 1986), When the nomnovant bears
the burden of proof, the movant may demonstrate entitlement to summary judgment either by (1)
submitting evidence that negates the existence of an essential element of the nonmovant's claim
or affirmative defense, or (2) arguing that there is no evidence to support an essential element of
the nonmovant's claim or affirmative defense. Celotex, 477 U.S. at 322-25. Once the movant has
made this showing, the burden shifts to the nomnovant to establish that there is a genuine issue of
material fact so that a reasonable jury might return a verdict in its favor. Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986), Moreover, "[c]onclusory allegations,
speculation, and unsubstantiated assertions" will not suffice to satisfy the nomnovant's burden.
Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en bane). Factual
controversies are resolved in favor of the nonmoving party "only when an actual controversy
exists, that is, when both parties have submitted evidence of contradictory facts." Olabisiomotosho
v. City of Haus., 185 F.3d 521, 525 (5th Cir. 1999) (quoting McCal!um Highlands, Ltd. v.
Washington Capital Dus, Inc., 66 FJd 89, 92 (5th Cir, 1995)),
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III. ANALYSIS
During her employment with DFW, from February 6, 2017, through July 9, 2017, Brannon
was paid on an hourly basis at $17.55 per hour. See Def.'s App. 002, 004-05. Brannon provided
security services to MBJ3 on two occasions at a fixed pay rate of$30.00 per hour. See id. at 013,
016-18. During the workweek of February! 7, 2017, through February 19, 2017, Brannon worked
40 hours for DFW at her regular hourly rate, and also provided four hours of security services to
MBJ3 on February 14, 2017, at a fixed rate of$30.00 per hour. See id. at 014, 016-18. During the
workweek of June 26, 2017, through July 2, 2017, Brannon worked 32 hours for DFW and used
eight hours of sick time. See id. at 002, 005, 007. Brannon also provided four hours of security
services to MBJ3 on June 27, 2017, at a rate of$30.00 per hour. See id. at 014, 016-18.
DFW contends that Brannon's claims fail as a matter of law because she received premium
pay for work performed outside of her regular work hours at a fixed rate that was at least one and
a half times her regular rate. Def. 's Br. 5. DFW argues that this premium pay is excluded from
Brannon's regular rate of pay when computing overtime compensation due under the FLSA, and
that DFW is entitled to an offset of this premium pay toward any alleged overtime owed to
Brannon. Id.
The FLSA requires employers to pay their employees for hours worked in excess of 40
hours a week at a rate no less than one and one-half times the employee's regular rate. See 29
U.S.C. § 207(a)(l). However, the FLSA also expressly authorizes ce1iain "credits" towards
overtime compensation. See 29 U.S.C. § 207(h)(2). An employer is entitled to credits "toward
overtime compensation payable" to an employee for
extra compensation provided by a premium rate paid for certain hours worked by
the employee in any day or workweek because such hours are hours worked in
excess of eight in a day or in excess of the maximum workweek applicable to such
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employee ... or in excess of the employee's normal working hours or regular
working hours, as the case may be[.]
Id.; 29 U.S.C. § 207(e)(5). Moreover, these overtime premium payments are not included in the
calculation ofan employee's regular rate of payment. See 29 U.S.C. § 207(e).
The parties dispute the nature of the $30.00 per hour payments for "off duty" work.
Plaintiffs contend that the payments are not overtime premiums under the FLSA, and thus, are
includable in Brannon's regular rate of pay and should not be credited towards overtime owed to
Brannon. See Pis.' Resp. 17. Plaintiffs argue that DFW has not produced any evidence that the
$30.00 per hour payments for "off duty" work were made because such hours were in excess of
eight in a day of 40 in a workweek. Id. at 24. Rather, Plaintiffs contend that the Civilian Security
Officers were not required to work eight hours in a day or 40 hours in a week before they could
work "off duty" for $30.00 per hour.
According to Plaintiffs, because Brannon was paid two different rates for her "off duty"
work and her "on duty" work in the same workweek, her regular rate of pay for such workweek is
the weighted average of the two rates of pay. Id. at 19. Plaintiffs argue that for the workweek of
February 13, 2017, through February 19, 2017, Brannon worked 44 hours--40 hours for DFW at
a rate of $17.55 per hour and four hours for MBJ3 at a rate of $30.00 per hour, for a total of
$822.00. Id. at 20. Therefore, Plaintiffs claim that Brannon's regular rate of pay for such week
was $18.68, and her overtime rate of pay at one and one-half the regular rate was $28.02. Id.
Plaintiffs argue that Brannon is owed the difference of regular rate paid for those four hours and
the ove1time owed, for a total of $37.36. Id.
DFW, however, maintains that the payments qualify as overtime premiums because
Plaintiffs previously conceded that the hours the Civilian Security Officers worked "off duty" for
the Contractors were in excess of their regular working hours for DFW. See Def.'s Br. 5-6; Def.'s
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Reply 2. DFW argues that Plaintiffs' claim that they were not required to work eight hours in a
day or 40 hours in a week before they could work "off duty" contradicts the allegations in the First
Amended Complaint and Frazier's prior sworn declaration. See Def.'s Reply 3. "Under the
circumstances, these contradictions suggest that Frazier and Brannon created the declarations
solely for the purpose of creating a factual issue to survive summary judgment[.]" Id.
The Court finds that DFW has not met its burden on summary judgment. DFW does not
offer any evidence in support of its position and instead relies solely on Plaintiffs' allegations in
the First Amended Complaint and Frazier's prior declaration. In his prior declaration, Frazier
testified that he would "normally work a 40-hour week for [the] Airport," referred to as "on duty"
work, and "an additional 10 to 30 hours a week" for one or more of the Contractors, referred to as
"off duty" work. See Pis.' App. 03-04, Deel. of Frazier ,r,r 5-6 [ECF No. 53-1]. In his declaration
submitted in response to DFW's motion for summary judgment, Frazier testifies, "There is not a
standard, normal or regular work week for Civilian Security Officers. Our work schedules are
subject to a bidding process based on seniority." See Pis.' App. 06, Deel. of Frazier
,r
19 [ECF
No. 129-1]. Both Frazier and Brannon testify in their sworn declarations that they were "not
required to work eight (or any) hours in a day or 40 (or any) hours in a week before they could
work 'off duty' for $30 per hour." See id. at 06, Deel. of Frazier ,r 18; see also id. at 18, Deel. of
Brannon ,r 12. The Court does not find Frazier's statement that he "normally" worked a 40-hour
week for DFW to be contradictory to the statements in his and Brannon's later declarations.
Moreover, the "Interim Procedure-PS.220.01 Off-Duty Employment" submitted by
Plaintiffs makes no mention of Civilian Security Officers qualifying for "off-duty work" only after
working 40 hours for DFW. See id. at 11-13. The procedure for requesting civilian off-duty
employment requires employees to "submit a Request for Off-Duty Employment form through
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channels to the Security Services Division Off-Duty Employment Coordinator."
Id. at 11.
"Supervisors recommend approval or denial and forward the request to the Security Services
Division Commander." Id.
DFW does not offer any summary judgment evidence that the higher pay for the "off duty"
hours was because such hours were in excess of eight in a day or 40 in a workweek. There is no
evidence in the record of an agreement between DFW and the Civilian Security Officers that stated
that "off duty" work would be paid at a premium rate contingent upon or because the "off duty"
work was work that was more than eight hours in a day or 40 hours in a workweek. DFW also
does not submit any sworn declarations from employees or supervisors of DFW that challenges
the allegations and declarations of Frazier and Brannon.
DFW did not meet its burden on summary judgment in establishing that it met the
requirements of Section 207(e)(5). See Caraballo v. City a/Chicago, 969 F. Supp. 2d 1008, 1015
(N.D. Ill. 2013) ("[T]he employer bears the burden of showing that a [Section 207(e)J exception
applies."); see also Fontenot, 780 F.2d at 1194 (holding that party with burden of proof on an issue
"must establish beyond peradventure all of the essential elements of the claim or defense to warrant
judgment in [its] favor."). DFW's conclusory allegations and unsubstantiated assertions that the
$30.00 per hour payments were premium payments do not suffice. See Douglass, 79 F.3d at 1429.
The Court requires more.
At this stage, the Court cannot hold as a matter of law that the $30.00 per hour payments
were premium payments and that DFW is entitled to an offset of this premium pay toward any
alleged overtime owed to Brannon. Therefore, the Court denies DFW's Motion for Summary
Judgment.
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SO ORDERED.
SIGNED May 2-_, 2019.
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KARENGRENSCIIOLER
UNITED STATES DISTRICT JUDGE
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