Hernandez et al v. Texas Zorro's, LLC et al

Filing 35

MEMORANDUM OPINION AND ORDER denying 23 MOTION for Partial Summary Judgment.(Signed by Judge Kenneth M. Hoyt) Parties notified.(dpalacios, )

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
ANTERO HERNANDEZ, et al.,
Plaintiffs,
VS.
TEXAS ZORRO'S, LLC, et al.,
Defendants.

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CIVIL ACTION NO. H-10-978

MEMORANDUM OPINION AND ORDER
I.

Introduction
Pending before the Court is the plaintiffs’, Antero Hernandez, Eleodoro Pineda and

Gertrudis Villatoro, motion for partial summary judgment (Docket Entry No. 23).

The

defendants, Texas Zorro’s LLC, Pasadena Zorro’s LLC,1 Nabil Dimassi and Hassan El Hussieni,
filed a response (Docket Entry No. 26), to which the plaintiffs replied (Docket Entry No. 31).
After having carefully reviewed the motion, responses, the record and the applicable law, the
Court denies the plaintiffs’ motion.
II.

Factual Background
This case concerns an employment compensation dispute. Dimassi and El Hussieni were

partners and owners of Zorro’s, a buffet restaurant, and El Hussieni was the general manager.
The defendants employed the plaintiffs at the restaurant, where Hernandez was a kitchen
supervisor, and Pineda and Villatoro cleaned and prepared food. Hernandez worked at Zorro’s at
least from May 23, 2009 through January 1, 2010. During that time, Zorro’s gross revenue
exceeded $500,000. Zorro’s paid Hernandez a semi-monthly salary of $900, or $415.38 per

1

The defendants assert that the plaintiffs incorrectly name the defendant restaurant Pasadena Zorro’s LLC as Texas
Zorro’s LLC. Regardless of its correct name, there is one restaurant at issue, and the Court will refer to it as
“Zorro’s.”

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week, to cover fifty-five to sixty hours of work per week, depending on the restaurant’s business
needs. Until July 24, 2009, federal minimum wage was $6.55 per hour, at which time it
increased to $7.25 per hour. On March 24, 2010, the plaintiffs filed suit, alleging violations of
the Fair Labor Standards Act (“FLSA”).2 The Court has jurisdiction pursuant to 28 U.S.C. §
1331.
III.

Contentions of the Parties
A.

The Plaintiffs’ Contentions

The plaintiffs contend that the defendants violated the FLSA by failing to pay them
minimum wage and overtime compensation.

The plaintiffs bring this action on behalf of

themselves, and they purport to represent an uncertified class of similarly situated Zorro’s
employees.3 The plaintiffs allege that the defendants cannot use the fluctuating work week
model to justify Hernandez’s salary, and that they have not proven their affirmative defense of
good faith with respect to liquidated damages. While conceding that the amount of Hernandez’s
alleged damages remains disputed, they seek partial summary judgment for their assertions that:
(1) the three named plaintiffs were employed by all three defendants; (2) Hernandez was
employed at least from May 23, 2009 to January 1, 2010; (3) the defendants are an enterprise
engaged in commerce within the meaning of the FLSA; (4) Hernandez was paid a semimonthly
salary of $900 and did not receive overtime pay; (5) his salary was meant to cover a maximum of
sixty hours per week prior to July 24, 2009; (6) his regular rate was at least $6.92 per hour prior
to July 24, 2009; (7) his salary was meant to cover a maximum of 57.3 hours per week from July

2

29 U.S.C. §§ 201-219.

3

The plaintiffs define this class as “[a]ll employees who were paid less than $455 in a week, who, in at least one
workweek, worked more than 40 hours.”

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24, 2009 onwards; (8) his regular rate is at least $7.25 per hour from July 24, 2009 onwards; and
(9) the defendants are not entitled to a good faith defense.
B.

The Defendants’ Contentions

The defendants deny the plaintiffs’ allegations, and in any event contend that they are
entitled to the affirmative defense of good faith. They assert that Hernandez was a salaried
employee earning the equivalent of $415.38 per week for a fluctuating work week. They
maintain that rarely, if ever, did Hernandez work sixty hours in a given week, and that he was
frequently late, and sometimes drunk or absent.
IV.

Standard of Review
Federal Rule of Civil Procedure 56 authorizes summary judgment against a party who

fails to make a sufficient showing of the existence of an element essential to that party’s case and
on which that party bears the burden at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). The movant
bears the initial burden of “informing the Court of the basis of its motion” and identifying those
portions of the record “which it believes demonstrate the absence of a genuine issue of material
fact.” Celotex, 477 U.S. at 323; see also, Martinez v. Schlumber, Ltd., 338 F.3d 407, 411 (5th
Cir. 2003). Summary judgment is appropriate if “the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material fact
and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).
If the movant meets its burden, the burden then shifts to the nonmovant to “go beyond the
pleadings and designate specific facts showing that there is a genuine issue for trial.” Stults v.
Conoco, Inc., 76 F.3d 651, 656 (5th Cir. 1996) (citing Tubacex, Inc. v. M/V Risan, 45 F.3d 951,
954 (5th Cir. 1995); Little, 37 F.3d at 1075). “To meet this burden, the nonmovant must

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‘identify specific evidence in the record and articulate the ‘precise manner’ in which that
evidence support[s] [its] claim[s].’” Stults, 76 F.3d at 656 (quoting Forsyth v. Barr, 19 F.3d
1527, 1537 (5th Cir. 1994), cert. denied, 513 U.S. 871 (1994)). The nonmovant may not satisfy
its burden “with some metaphysical doubt as to the material facts, by conclusory allegations, by
unsubstantiated assertions, or by only a scintilla of evidence.” Little, 37 F.3d at 1075 (internal
quotation marks and citations omitted). Instead, it “must set forth specific facts showing the
existence of a ‘genuine’ issue concerning every essential component of its case.” American
Eagle Airlines, Inc. v. Air Line Pilots Ass'n, Int’l, 343 F.3d 401, 405 (5th Cir. 2003) (quoting
Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998)).
“A fact is material only if its resolution would affect the outcome of the action . . . and an
issue is genuine only ‘if the evidence is sufficient for a reasonable jury to return a verdict for the
[nonmovant].’” Wiley v. State Farm Fire and Cas. Co., 585 F.3d 206, 210 (5th Cir. 2009)
(internal citations omitted). When determining whether the nonmovant has established a genuine
issue of material fact, a reviewing court must construe “all facts and inferences . . . in the light
most favorable to the [nonmovant].” Boudreaux v. Swift Transp. Co., Inc., 402 F.3d 536,
540 (5th Cir. 2005) (citing Armstrong v. Am. Home Shield Corp., 333 F.3d 566, 568 (5th Cir.
2003)). Likewise, all “factual controversies [are to be resolved] in favor of the [nonmovant], but
only where there is an actual controversy, that is, when both parties have submitted evidence of
contradictory facts.” Boudreaux, 402 F.3d at 540 (citing Little, 37 F.3d at 1075 (emphasis
omitted)).

Nonetheless, a reviewing court may not “weigh the evidence or evaluate the

credibility of witnesses.” Boudreaux, 402 F.3d at 540 (citing Morris, 144 F.3d at 380). Thus,
“[t]he appropriate inquiry [on summary judgment] is ‘whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party must

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prevail as a matter of law.’” Septimus v. Univ. of Houston, 399 F.3d 601, 609 (5th Cir. 2005)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)).
V.

Analysis and Discussion
The Court denies the plaintiffs’ motion. Granting the plaintiff’s motion would not

entirely resolve any cause of action of any claimant, in whole or in part. Even if the Court were
to grant any portion of the plaintiffs’ summary judgment motion, the same information would be
addressed at trial, as all of the plaintiffs’ summary judgment claims are inextricably intertwined
with their other claims that are not addressed in the present motion. Therefore, in the interest of
judicial economy, the Court denies the plaintiffs’ motion.
VI.

Conclusion
Based on the foregoing discussion, the Court DENIES the plaintiffs’ motion.
It is so ORDERED.
SIGNED at Houston, Texas this 16th day of August, 2011.

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Kenneth M. Hoyt
United States District Judge

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