Scogin v. Texas Eagle Ford Shale Magazine et al

Filing 33

ORDER denying 26 Motion for Reconsideration.(Signed by Judge Hilda G Tagle) Parties notified.(mserpa, 2)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
NANCY L. SCOGIN,
Plaintiff,
VS.
TEXAS EAGLE FORD SHALE
MAGAZINE, et al,
Defendants.

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February 17, 2016
David J. Bradley, Clerk

CIVIL NO. 2:14-CV-478

ORDER
BE IT REMEMBERED that on February 16, 2016 the Court DENIED
Plaintiff’s Motion to Reconsider Ruling on Plaintiff’s Motion for Summary
Judgment. See Dkt. No. 26.
I.

Background
On December 4, 2014, Plaintiff Nancy Scogin (“Scogin”) filed a complaint

against Sandra Castillo Swallow (“S. Swallow”), Troy W. Swallow (“T. Swallow”),
and Texas Eagle Ford Shale Magazine (“the Magazine”) alleging violations of
overtime and minimum wage payments under the Fair Labor Standards Act
(“FLSA”) and breach-of-contract claims on three promissory notes. Orig. Compl.
Dkt. No. 1. On December 23, 2015, the Court denied in part and granted in part
Scogin’s motion for summary judgment. Dkt. No. 21. The Court held that there
was a genuine issue of material fact as to whether the Magazine’s annual gross
volume of sales exceeded $500,000, a threshold requirement for FLSA coverage.
Dkt. No. 21 at 6–11.

The Court granted summary judgment on the three

promissory notes, and determined that only S. Swallow was liable based on the
record before the Court. Dkt. No. 21 at 13. The Court did not enter summary
judgment that any other Defendant is liable to Scogin under those notes. Dkt. No.
21 at 14.

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The Court held a final pretrial conference on January 22, 2016.

At that

conference, Defendants agreed to stipulate that the Magazine’s annual gross
volume of sales exceeded $500,000. Scogin filed this motion for reconsideration
requesting that the Court grant her summary judgment because the genuine issue
of material fact has been resolved in Scogin’s favor.

Dkt. No. 26.

Defendants

responded to Scogin’s motion, Dkt. No. 30, and Scogin filed a reply, Dkt. No. 31.
II.

Legal Standards
A.

Motion for Reconsideration

The Federal Rules of Civil Procedure do not specifically provide for motions
for reconsideration. Shepherd v. Int’l Paper Co., 372 F.3d 326, 328 (5th Cir. 2004).
A motion for reconsideration is generally analyzed under the standards for a motion
to alter or amend judgment under Rule 59(e) if the motion is filed within twentyeight days of the complained of order.

See Hamilton Plaintiffs v. Williams

Plaintiffs, 147 F.3d 367, 371 n. 10 (5th Cir. 1998). Because the Court did not
dispose of all of the claims against all of the parties, the Court will analyze the
parties’ motion to reconsider under Federal Rule of Civil Procedure 54(b). See, e.g.,

Stoffels ex rel. SBC Tel. Concession Plan v. SBC Commc’ns, Inc., 677 F.3d 720, 727–
28 (5th Cir. 2012) (citing Zarnow v. City of Wichita Falls, Tex., 614 F.3d 161, 171
(5th Cir. 2010)). “District courts have considerable discretion in deciding whether to
grant a motion to reconsider an interlocutory order. The exact standard applicable
to the granting of a motion under Rule 54(b) is not clear, though it is typically held
to be less exacting than would be a motion under Rule 59(e), which is in turn less
exacting than the standards enunciated in Rule 60(b).” Livingston Downs Racing

Ass’n, Inc. v. Jefferson Downs Corp., 259 F. Supp. 2d 471, 475 (M.D. La. 2002).
Under this standard, “the trial court is free to reconsider and reverse its decision for
any reason it deems sufficient, even in the absence of new evidence or an
intervening change in or clarification of the substantive law.” Estate of Henson v.

Wichita Cty., 988 F. Supp. 2d 726, 730 (N.D. Tex. 2013) (quoting Lavespere v.
Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 185 (5th Cir. 1990)). Rule 54(b),
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however, “does not mean that the Court has carte blanche to reconsider newly
presented theories of liability or the lack thereof.” Livingston, 288 F. Supp. 2d at
480; see also id. at 481 (“Any position is supportable by boundless arguments, and
lawyers are trained and paid to find those arguments. Judicial economy counsels
against reconsidering an issue each time someone presents a new argument.”).
B.

Motion for Summary Judgment

“Summary judgment is appropriate where the competent summary judgment
evidence demonstrates that there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law.” Brumfield v. Hollins, 551
F.3d 322, 326 (5th Cir. 2008) (citing Bolton v. City of Dall., 472 F.3d 261, 263 (5th
Cir. 2006)); accord. Fed. R. Civ. P. 56(c). “A genuine issue of material fact exists
when the evidence is such that a reasonable jury could return a verdict for the nonmovant.” Piazza’s Seafood World, LLC v. Odom, 448 F.3d 744, 752 (5th Cir. 2006)
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The Court must
view all evidence in the light most favorable to the non-moving party. Brumfield,
551 F.3d at 326 (citing Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574,
587 (1986)); Piazza’s Seafood World, 448 F.3d at 752; Lockett v. Wal-Mart Stores,

Inc., 337 F. Supp. 2d 887, 891 (E.D. Tex. 2004). Factual controversies must be
resolved in favor of the non-movant, “but only when there is an actual controversy,
that is, when both parties have submitted evidence of contradictory facts.” Little v.

Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc, per curiam).
The party moving for summary judgment bears the “burden of showing this
Court that summary judgment is appropriate.” Brumfield, 551 F.3d at 326 (citing

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).

Once the party seeking

summary judgment has discharged its initial burden, the non-movant must come
forward with specific evidence to show that there is a genuine issue of fact. Lockett,
337 F. Supp. 2d at 891; see also Ashe v. Corley, 992 F.2d 540, 543 (5th Cir. 1993).
The non-movant may not merely rely on conclusory allegations or the pleadings.

Lockett, 337 F. Supp. 2d at 891. Rather, it must cite specific facts identifying a
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genuine issue to be tried in order to avoid summary judgment. See Fed. R. Civ. P.
56(e); Piazza’s Seafood World, 448 F.3d at 752; Lockett, 337 F. Supp. 2d at 891.
“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.” Ragas v.

Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (quoting Skotak v.
Tenneco Resins, Inc., 953 F.2d 909, 915–16 & n.7 (5th Cir. 1992)). Thus, once it is
shown that a genuine issue of material fact does not exist, “[s]ummary judgment is
appropriate . . . if the non-movant ‘fails to make a showing sufficient to establish the
existence of an element essential to that party’s case.’ ” Arbaugh v. Y&H Corp., 380
F.3d 219, 222–23 (5th Cir. 2004) (quoting Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986)).
III.

Discussion
A.

Corporate Entity Status

At the final pretrial conference, the Court questioned Defendants about the
Magazine’s corporate status because neither party identified its status in any
submission. Defendants’ counsel requested time to investigate this issue further
and to confer with Defendants. In her motion for reconsideration, Scogin argues
that the Magazine cannot defend itself because it forfeited its corporate status after
failing to pay franchise taxes. Dkt. No. 26 at 2–3. In their response, Defendants
inform the Court that they contacted the Texas Comptroller’s office and learned
that the Magazine forfeited its corporate privileges on September 25, 2015. Dkt.
No. 30 at 3.

The lawsuit was initiated on December 4, 2014.

Dkt. No. 1.

Defendants argue that the Magazine retains its ability to defend itself in this
lawsuit because it forfeited its corporate privileges after the lawsuit was filed. Dkt.
No. 30 at 3. Defendants further inform the Court that it has made an open records
request to the Texas State Comptroller’s office to obtain documentary evidence for
the Court. Dkt. No. 30 at 2.

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Under Texas Tax Code § 171.251,1 the Secretary of State may forfeit the
corporate privileges of a corporation that fails to pay franchise taxes under Texas
Tax Code § 171.309.2

Once the corporate privileges are forfeited, then “the

corporation shall be denied the right to sue or defend in a court of this state.” Tex.
Tax Code Ann. § 171.252 (West 2015).

However, “[section] 171.252 bars

corporations from filing suit only after they have forfeited their right to do
business.” Tex. Clinical Labs, Inc. v. Leavitt, 535 F.3d 397, 403 (5th Cir. 2008).
Consequently, both Texas state and federal courts have construed this section to
permit entities whose rights were forfeited after the lawsuit was filed to continue to
defend or prosecute the action. See Tex. Clinical Labs, Inc. 535 F.3d at 403–05
(concluding that a Texas corporation that had forfeited its corporate status after
initiating a lawsuit had capacity to proceed with the action); Waterway Ranch,

L.L.C. v. City of Annetta, 411 S.W.3d 667, 673–74 (Tex. App.—Fort Worth, 2013, no
pet. filed) (allowing a corporation’s appeal to move forward despite its forfeiture
because it forfeited its corporate status after the lawsuit was commenced).
The Court concludes that Magazine may continue to defend itself in this suit
because it forfeited its status after this suit commenced. Accordingly, Plaintiff’s
motion for reconsideration of summary judgment as to the Magazine based on its
claim that it forfeited its corporate privileges is DENIED.
Section 171.251 of the Texas Tax Code Annotated provides:
The comptroller shall forfeit the corporate privileges of a corporation on which the
franchise tax is imposed if the corporation:
(1) does not file, in accordance with this chapter and within 45 days after the
date notice of forfeiture is mailed, a report required by this chapter;
(2) does not pay, within 45 days after the date notice of forfeiture is mailed, a
tax imposed by this chapter or does not pay, within those 45 days, a penalty
imposed by this chapter relating to that tax; or
(3) does not permit the comptroller to examine under Section 171.211 of this
code the corporation’s records.
2 Section 171.309 of the Texas Tax Code Annotated states:
The secretary of state may forfeit the charter, certificate, or registration of a taxable
entity if:
(1) the secretary receives the comptroller’s certification under Section
171.302; and
(2) the taxable entity does not revive its forfeited privileges within 120 days
after the date that the privileges were forfeited.
1

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B.

Plaintiff’s FLSA Claims
1.

Enterprise Coverage under the FLSA

The minimum wage and maximum hour protections under the FLSA apply to
an employee “who in any workweek is engaged in commerce or in the production of
goods for commerce, or is employed in an enterprise engaged in commerce or in the
production of goods for commerce.”

29 U.S.C. §§ 206(a), 207(a)(1).3

The FLSA

defines an “enterprise engaged in commerce or in the production of goods for
commerce” as one that:
(i) has employees engaged in commerce or in the production of goods for
commerce, or that has employees handling, selling, or otherwise working
on goods or materials that have been moved in or produced for commerce
by any person; and
(ii) is an enterprise whose annual gross volume of sales made or business done is
not less than $500,000 . . . .
29 U.S.C. § 203(s)(1)(A). A plaintiff who seeks to invoke FLSA protection under an
enterprise coverage theory must prove the enterprise’s gross sales under
§ 203(s)(1)(A) as an element of her claim. Holland v. DA Tencil, Inc., No. 3:14–CV–
86, 2014 WL 3588520, at *2 (S.D. Tex. July 21, 2014) (Costa, J.).
In its December 23, 2015 order, the Court determined that there was a
genuine issue of material fact concerning whether the Magazine’s annual gross
volume of sales exceeded $500,000.

Dkt. No. 21 at 10–11.

The only evidence

submitted in support of this threshold question was Scogin’s declaration, and the
Court determined that Scogin’s statement concerning the Magazine’s annual gross
volume of sales was not based on her personal knowledge. Dkt. No. 21 at 8–10.
Despite Defendants’ argument on Scogin’s second summary judgment motion that
the annual gross volume of sales was in dispute, Defendants agreed to stipulate
that the annual gross volume of sales exceeded $500,000 at the final pretrial
As determined by the Court in its December 23, 2015 order, Scogin does not discuss individual
coverage or argue that she engaged in commerce or the production of goods for commerce. Dkt. No.
21 at 6–7; see also Orig. Compl., Dkt. No. 1, ¶ 5 (pleading only the elements of enterprise coverage).
The Court therefore need not analyze individual coverage.
3

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conference held on January 21, 2016. In compliance with the Court’s order, Dkt.
No. 29, the parties submitted their First Amended Joint Pretrial Order on February
1, 2016. Dkt. No. 32. In the Admissions of Fact section of their First Amended
Joint Pretrial Order, the parties agree that “[t]he annual revenue from the
defendants’ magazine exceeds $500,000.”

Dkt. No. 32 at 5.

The parties also

acknowledge that Defendants own, operate, and publish a magazine that is
available to subscribers. Dkt. No. 32 at 4. Therefore, Defendants qualify as an
enterprise engaged in commerce or in the production of goods for commerce, as
defined under the FLSA. See § 203(s)(1)(A). Scogin has met her burden to show
enterprise coverage under the FLSA; thus, the Magazine must comply with the
minimum wage and maximum hour requirements.
In her motion for reconsideration of her summary judgment motion, Scogin
argues that the Court should grant summary judgment on her FLSA claims because
there no longer exists a genuine issue of material fact as to the Magazine’s annual
gross volume of sales. The Court, however, did not address other aspects Scogin’s
FLSA claims in its December 23, 2015 order because it found a genuine issue of
material fact as to a threshold requirement. Having determined that Scogin has
met her burden to show enterprise coverage under the FLSA, the Court must
analyze Scogin’s motion for summary judgment as to her minimum wage and
overtime claims.
2.

Regular Wages Claim

Before examining Scogin’s motion for reconsideration for summary judgment
as to her claim for regular wages, the Court finds it necessary to identify those
issues that are not contested. The parties’ summary judgment evidence is notably
sparse.

Scogin’s summary judgment evidence includes the following:

(1)

Declaration of Nancy L. Scogin including attachments of three promissory notes,
Dkt. No. 18, Ex. 1, and (2) Declaration of Jon D. Brooks regarding attorney’s fees,
Dkt. No. 18, Ex. 2. Defendants’ summary judgment evidence includes only the
Declaration of Troy W. Swallow. Dkt. No. 19, Ex. 1.
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The Court considers these

declarations, even though they are not notarized.

See Dkt. No. 21 at 2, n.1

(explaining that unsworn declarations that comply with 28 U.S.C. § 1746 may be
used to support a factual assertion under Federal Rule of Civil Procedure
56(c)(1)(A)). Given the limited evidence submitted by the parties, the Court will
also consider the parties’ First Amended Joint Pretrial Order to identify undisputed
facts. See McGehee v. Certainteed Corp., 101 F.3d 1078, 1080 (5th Cir. 1996) (“It is
a well-settled rule that a joint pretrial order signed by both parties supersedes all
pleadings and governs the issues and evidence to be presented at trial.”) (quoting

Branch-Hines v. Hebert, 939 F.2d 1311, 1319 (5th Cir. 1991)).
Although Defendants refuse to identify Scogin as the Magazine’s employee,
Defendants’ filings clarify that they do not dispute that Scogin was an employee,
but rather they argue that Scogin falls under the FLSA’s administrative exemption.
Defendants’ imprecise language confuses these two possible defenses. Defendants
made prior representations that Scogin agreed to work for the Magazine as part of a
business opportunity, which suggested that Scogin’s role was the same as that of S.
Swallow and T. Swallow.

For example, in T. Swallow’s declaration, he states,

“[Scogin] volunteered her time and money as an opportunity to ‘buy into’ the
business knowingly and willingly.”

Dkt. No. 19-1 at 1.

Defendants’

Defendants

filings

suggests

that

deny

However, nothing in
an

employer-employee

relationship between Scogin and Defendants. See Orozco v. Plackis, 757 F.3d 445,
448 (5th Cir. 2014) (defining employer under 29 U.S.C. § 203(d) and explaining the
economic reality test utilized to determine the existence of an employer-employee
relationship). Defendants instead argue that Scogin is exempt from minimum wage
and maximum hour requirements under the FLSA’s administrative exemption. See
Dkt. No. 19 at 3 (“Plaintiff was not an employee, but rather an administrative
executive, thus exempt from the requirements of 29 U.S.C. §§ 206 & 207.”); Dkt. No.
30 at 4 (contesting that Scogin was not an employee, but an administrative
executive). Defendants cite to 29 C.F.R. § 541.200(a) in support of their argument
that Scogin was an “employee employed in a bona fide administrative capacity.”
Dkt. No. 30 at 7. The FLSA’s administrative exemption applies to “any employee
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employed in a bona fide executive, administrative, or professional capacity.” 29
U.S.C. § 213(a)(1).

Thus, Defendants’ argument that Scogin falls under the

administrative exemption first requires that Scogin be an employee.

Because

Defendants do not dispute the existence of an employer-employee relationship, the
Court finds that Scogin was an employee of the Magazine.
Having established that Scogin was an employee, the Court finds that there
is also no dispute that Scogin was a writer and editor for Defendants and
“performed labor” for Defendants from September 2012 until May 2014. Dkt. No.
32 at 4. The parties further agree that Defendants paid no wages to Scogin between
September 2012 and approximately March 2014.

Dkt. No. 32, ¶ 7.

In their

response to the motion for reconsideration, Defendants argue that Scogin does not
have personal knowledge that other employees were being paid while she did not
receive wages. Dkt. No. 30 at 3–4. However, in the First Amended Joint Pretrial
Order, the parties admit the following, “During the period in question, the
defendants had several other employees who wrote articles and edited the magazine
and to whom they paid wages.” Dkt. No. 32 at 5, ¶ 12. The parties fail to define
“the period in question,” but the Court nonetheless notes that there is no dispute
that other employees at the Magazine received wages.
Regarding Scogin’s claim for regular wages, Scogin argues that Defendants
failed to meet their burden to present evidence to controvert Scogin’s summary
judgment evidence. Dkt. No. 26 at 4–6. Specifically, Scogin states that she was
promised base wages of $1,211.54 per week, which amounts to approximately
$63,000 per year. Dkt. No. 18-1, ¶¶ 3, 8. Scogin states that S. Swallow “induced”
her to defer payment of wages until the Magazine began earning revenue, to which
Scogin agreed.4 Dkt. No. 18-1, ¶ 4. Scogin continues,
By mid-2013, I began to reasonably believe that payment of my wages
should be forthcoming based, in part, on the amount of business that
Consistent with this statement, T. Swallow states in his declaration, “[Scogin] willfully forwent any
income and reimbursement of these expenses for the betterment of the business.” Dkt. No. 19-1 at 1.
Thus, all parties agree that Scogin delayed receipt of wages during the early period of the Magazine’s
development.
4

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seemed to be generated and the hiring of other employees, who were
being paid wages by the defendants. However, my wages were not
paid. Nor was any portion of the loan I made to the defendants repaid.
By late-2013, I also reasonably believed that payment of my wages
should be forthcoming based, in part, on the amount of business that
seemed to be generated and the hiring of other employees, who were
being paid wages by the defendants. However, the wages were not
paid.
Dkt. No. 18-1, ¶ 6. Scogin acknowledges, and the parties agree, that she began to
receive wages in March 2014. Dkt. No. 32 at 5, ¶ 8. In her declaration, Scogin
details these payments:
The first pay period for which I received payment of current wages was
March 1, 2014 to March 15, 2014.

The gross pay was $2,423.

I

received payment in this amount every two weeks for March 2014, and
the gross amount of $2,625 in April and most of May 2014. The gross
amount of wages received between March and May 2014 was
$10,096.16.

However, I resigned in May 2014 because of the non-

payment of the back wages, remaining issues with current pay and
overtime pay, and non-payment of the loan.
Dkt. No. 18-1, ¶ 7. In her second motion for summary judgment, Scogin stated that
“the regular wages she is owed is $1,211 per week for a period of 18 months, which
totals $94,500.” Dkt. No. 18 at 6. Scogin’s declaration is the only evidence she
submits to support her regular wages claim.
Defendants do not contest that Scogin is owed wages in some form. Indeed,
implicit in their defense that Scogin is an employee employed in an administrative
capacity is an admission that she is owed wages. The definition for an “employee
employed in a bona fide administrative capacity” includes any employee:
(1) Compensated on a salary or fee basis at a rate of not less than $455
per week . . . , exclusive of board, lodging or other facilities;

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(2) Whose primary duty is the performance of office or non-manual
work directly related to the management or general business
operations of the employer or the employer’s customers; and
(3) Whose primary duty includes the exercise of discretion and
independent judgment with respect to matters of significance.
29 C.F.R. § 541.200. T. Swallow’s declaration supports Defendants’ theory that
Scogin was an employee employed in an administrative capacity:
[Scogin] was part of the Senior Management team; at no point did we
consider her an employee.
supervision.

[Scogin] worked independently without

[Scogin] was not required or directed in any way by

Sandra Castillo-Swallow or Troy W. Swallow on her work schedule and
received only minimal direction in the manner in which she
contributed to the magazine.
Dkt. No. 19-1 at 1. Defendants further argue that the promissory notes, combined
with wages to which Scogin argues she is entitled, would constitute a “windfall” for
Scogin. Dkt. No. 30 at 7. Although the Court in its December 23, 2015 notified
Defendants of their failure to cite to any case law in support of this claim, Dkt. No.
21 at 13, Defendants included the same paragraph in its motion for reconsideration,
again without any supporting case law. Dkt. No. 30 at 7. Nonetheless, Defendants
cite to the promissory notes included as Exhibits 1-B and 1-C in Scogin’s summary
judgment evidence. Dkt. No. 30 at 5. Defendants argue that the wages Scogin
received in 2014, along with the promissory notes, amount to approximately
$512.58 per week. Dkt. No. 19 at 6. Defendants exclude an unspecified period in
2012 during which the Magazine failed to gross $500,000. Dkt. No. 19 at 6–7.
Turning to the record, the Court finds that there is a genuine issue of
material fact concerning the amount of regular wages owed to Scogin. Scogin’s
declaration that she was promised a specific salary is controverted by Defendants’
argument and supporting evidence that the parties agreed to pay back wages in the
form of the promissory notes. The first promissory note, in the amount of $8,766.35,
details the specific debts the Scogin incurred on behalf of S. Swallow to start up the
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Magazine.

Dkt. No. 18-1, Ex. 1-A.

represents payment for past wages.

Defendants do not argue that this note
The second promissory note states that S.

Swallow promises to pay Scogin $3,494.74 “for net wages due.” Dkt. No. 18-1, Ex. 1B. It includes a table containing columns for a payment due date, “Gross wages,”
“Federal W.,” “Social S.,” “Medicare,” and “Net Wages.” Dkt. No. 18-1, Ex. 1-B. The
third promissory note states that S. Swallow promises to pay Scogin $25,454.28 “for
value received.”

Dkt. No. 18-1, Ex. 1-C.

Like the second promissory note, it

includes a table with columns for the payment due date, as well as gross wages, net
wages, and specific deductions. Dkt. No. 18-1, Ex. 1-C. Thus, there is a genuine
dispute of material fact concerning whether these promissory notes constituted the
back wages owed to Scogin.
The Court concludes that there is a genuine issue of material fact as to the
parties’ original agreement regarding payment of wages and whether the parties
agreed that the promissory notes constituted full or partial payment for Scogin’s
back wages. The Court therefore DENIES Scogin’s motion for summary judgment.
3.

Overtime Payments

Under the FLSA, an employer must pay covered employees overtime
compensation that is “not less than one and one-half times [the employee’s] regular
rate” for hours worked over forty in a workweek.

29 U.S.C. § 207(a)(1).

The

employer has the obligation to maintain records of the employee’s work hours. See
29 U.S.C. § 211(c) (“Every employer subject to any provision of this chapter . . . shall
make, keep, and preserve such records of the persons employed by him and of the
wages, hours, and other conditions and practices of employment maintained by him,
and shall preserve such records for such periods of time.”). “An employer who is
armed with [knowledge that an employee is working overtime] cannot stand idly by
and allow an employee to perform overtime work without proper compensation,
even if the employee does not make a claim for the overtime compensation.” Harvill

v. Westward Commc’ns, L.L.C., 433 F.3d 428, 441 (5th Cir. 2005) (alteration in
original) (quoting Newton v. City of Henderson, 47 F.3d 746, 748 (5th Cir. 1995)).
12 / 15

An employee who brings an action under the FLSA first has the burden to
show that she performed the work for which she claims she was not compensated.

Harvill, 433 F.3d at 441.

To meet this burden, the employee must “produce

sufficient evidence to show the amount and extent of that work as a matter of just
and reasonable inference.” Id. (quoting Anderson v. Mount Clemens Pottery Co.,
328 U.S. 680, 687–88 (1946) (superseded in part by statute on other grounds by the
Portal-to-Portal Act, amending the FLSA in 1947, 29 U.S.C. § 251, et seq.). Once
the employee meets this initial burden, “[t]he 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.” Harvill, 433 F.3d at 441 (quoting Anderson, 328 U.S. at 687–
88). “Plaintiffs are only entitled to overtime compensation for tasks of which the
employer had actual or constructive knowledge that the employee was working.”

Garner v. Chevron Phillips Chem. Co., L.P., 834 F. Supp. 2d 528, 544 (S.D. Tex.
2011) (Harmon, J.). “[I]f the ‘employee fails to notify the employer or deliberately
prevents the employer from acquiring knowledge of the overtime work, the
employer’s failure to pay for the overtime hours is not a violation of § 207.’ ”

Newton, 47 F.3d at 748 (quoting Forrester v. Roth’s I.G.A. Foodliner, Inc., 646 F.2d
413, 414 (9th Cir. 1981)).

Nonetheless, “[t]he remedial nature of [the FLSA] and

the great public policy which it embodies militate against making [the plaintiff’s
burden] an impossible hurdle for the employee.” Anderson, 328 U.S. at 687.
In Scogin’s motion for reconsideration, Scogin argues that Defendants failed
to controvert the evidence that she presented in her second motion for summary
judgment regarding her claim for overtime. Dkt. No. 26 at 5–6. Scogin states in her
declaration, “Soon after my employment began, I began working 6 days per week. I
worked, on average, 12 hours per day. Therefore, I worked, on average, 72 hours
per week for the defendants. However, the time that I worked each day is not
recorded by the defendants in any, [sic] proper time-keeping records.” Dkt. No. 181, ¶ 5. Scogin argues that the burden is on the employer to maintain timekeeping
records, so the Court should award her summary judgment for the overtime hours
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that Scogin claims she worked. Dkt. No. 26 at 9–11. The Court finds that Scogin’s
statement that she worked seventy-two hours per week, without any other
supporting evidence, is not sufficient to show that she indeed worked those hours.
Although Defendants, as the employers, have an obligation to maintain records,
Scogin nonetheless must meet her initial burden “to show the amount and extent of
that work as a matter of just and reasonable inference.” See Harvill, 433 F.3d at
441. Her statements made in her declaration as to the overtime hours she worked,
without more, are insufficient to meet this burden.
In addition, Defendants present an affirmative defense as to Scogin’s
overtime claims and cite to evidence that creates a genuine issue of material fact.
As discussed in the prior section, Defendants claim that Scogin is exempt from the
FLSA because she falls under the administrative exemption. See Dkt. No. 30 at 4;
29 U.S.C. § 213(a)(1) (providing that “any employee employed in a bona fide
executive administrative, or professional capacity” is exempt from minimum wage
and overtime provisions of the FLSA). Defendants have the burden to prove that
Scogin is exempt. See Idaho Sheet Metal Works, Inc. v. Steepleton Gen. Tire Co.,
383 U.S. 190, 206 (1966) (holding the burden of proof is on the employer to prove an
exemption under the FLSA).

Whether Scogin is exempt as an administrative

employee is a mixed question of law and fact. See Tyler v. Union Oil Co. of Cal., 304
F.3d 379, 402 (5th Cir. 2002) (reviewing the district court’s finding that an employee
is exempt under a mixed standard of review). There are insufficient facts in the
record to determine whether Defendants have met their burden to show that Scogin
is exempt. However, Defendants need not prove Scogin is exempt at this stage;
rather, they need only create a genuine issue of material fact.
T. Swallow’s declaration creates a genuine dispute of material fact regarding
the number of hours Scogin worked. T. Swallow explains that Defendants did “not
know how much [Scogin] worked on Texas Eagle Ford Magazine.

[Scogin]

simultaneously worked on projects for her daughter . . . as well as assisting her sonin-law.” Dkt. No. 19-1 at 1. He further states that Scogin kept unusual work hours
and did not work in the Magazine’s office, so Defendants did not know how many
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hours she worked.

Dkt. No. 19-1 at 1.

In the motion for reconsideration,

Defendants

that

declaration

argue

T.

Swallow’s

controverts

Scogin’s

representations regarding the number of hours worked. Dkt. No. 30 at 4. This
submission is sufficient to call into question the number of hours that Scogin
worked. Therefore, the Court finds that there is a genuine issue of material fact
regarding the number of hours the Scogin worked.
The Court therefore DENIES summary judgment as to Scogin’s overtime
claims.
4.

Liquidated Damages

Scogin argues that she should be awarded liquidated damages under 29
U.S.C. § 260 because Defendants fail to present evidence that they acted in good
faith. Dkt. No. 26, ¶ 30. However, any argument that Defendants acted in good
faith when violating the FLSA would be an admission that they violated the FLSA.
Having determined that summary judgment should be denied as to Scogin’s claims
for back wages and overtime, the Court finds any determination regarding the
willfulness of the alleged FLSA violation is premature. The Court therefore will not
examine whether Defendants acted in good faith.
IV.

Conclusion
The Court DENIES Plaintiff’s Motion to Reconsider Ruling on Plaintiff’s

Motion for Summary Judgment.

SIGNED this 16th day of February, 2016.
___________________________________
Hilda Tagle
Senior United States District Judge

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