Chapman et al v. A.S.U.I. Healthcare and Development Center et al
Filing
56
MEMORANDUM OPINION, ORDER & FINDINGS OF FACT AND CONCLUSIONS OF LAW.(Signed by Judge Gray H. Miller) Parties notified.(rkonieczny)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
VERA CHAPMAN & KRYSTAL HOWARD ,
Plaintiffs,
v.
A.S.U.I. HEALTHCARE & DEVELOPMENT
CENTER , et al.,
Defendants.
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CIVIL ACTION H-11-3025
M EMORANDUM O PINION, O RDER & F INDINGS OF F ACT AND C ONCLUSIONS OF L AW
On August 21, 2012, the court granted plaintiffs’ motion for summary judgment in part. Dkt.
26. The court held that plaintiffs Vera Chapman (“Chapman”) and Krystal Howard (“Howard”)
(collectively, “plaintiffs”) had established as a matter of law that they were statutory employees of
A.S.U.I. Healthcare and Development Center (“ASUI”), and ASUI failed to pay the plaintiffemployees minimum wage and overtime compensation as required by the Fair Labor Standards Act
of 1938 (“FLSA”). Id. at 11. Plaintiffs thus met their burden regarding liability under the FLSA.
Id. However, the court denied plaintiffs’ motion for summary judgment as to damages and
attorneys’ fees, holding that plaintiffs had not proffered sufficient summary judgment evidence to
support their damage and fee calculations as a matter of law. Id. at 13. As a result, the issues of
damages and willfulness were left to the ultimate determination of the factfinder.
On November 5, 2012, these issues came for trial before the court. Dkt. 43. Trial concluded
on November 6, 2012. Dkt. 44. After the close of plaintiffs’ case-in-chief on November 6,
defendants moved for judgment as a matter of law under Rule 52(c) of the Federal Rules of Civil
Procedure as to the individual liability of defendants Diann Simien (“Simien”) and Kim McLemore
(“McLemore”). See id. After the court heard arguments from both sides as to whether Simien and
McLemore were liable as employers under the FLSA, the court took these motions under
advisement.
On November 20, 2012, the parties filed cross post-trial briefs. See Dkts. 47–48. Plaintiffs’
concurrently filed an application for attorneys’ fees with their post-trial brief. Dkt. 47 at 19–24. On
December 12, 2012, defendants filed a supplemental brief, claiming that a recent dismissal of a
collective action brought by a similarly-situated plaintiff “invokes the doctrine collateral estoppel
and bars the Plaintiffs [in the case] before this Court from relitigating that issue of law.” Dkt. 51 at
2. The parties then filed a series of responses and replies to the defendants’ supplement. Dkts.
52–55.
After considering the parties’ briefing and arguments on the pending issues, the evidence of
record, and applicable law, defendant McLemore’s Rule 52(c) motion is GRANTED, defendant
Simien’s Rule 52(c) motion is DENIED, and plaintiffs’ application for attorneys’ fees is
GRANTED. Below the court will address defendants’ trial and post-trial objections, including
plaintiffs’ responses thereto. The court will then turn to the findings of fact, conclusions of law, and
its order granting attorneys’ fees.
A.
Defendants’ Pending Trial Motions
At trial, McLemore and Simien, the individual defendants, moved for judgment on partial
findings that they are not statutory employers of the plaintiffs under the FLSA. Section 203(d) of
the FLSA provides that an “employer” is “any person acting directly or indirectly in the interest of
2
an employer in relation to an employee.” 29 U.S.C. § 203(d). In the Fifth Circuit, courts consider
this relationship in light of the “economic realities” of the workplace. Watson v. Graves, 909 F.2d
1549, 1553 (5th Cir. 1990); Donovan v. Grim Hotel Co., 747 F.2d 966, 972 (5th Cir. 1984) (“This
circuit . . . has underscored the importance of ‘the economic realities’ of employment . . . .” (citations
omitted)). A corporate officer “‘with operational control of a corporation’s enterprise is an employer
along with the corporation, jointly and severally liable under the FLSA for unpaid wages.’” Grim
Hotel, 747 F.2d at 971–72 (quoting Donovan v. Agnew, 712 F.2d 1509, 1511 (1st Cir. 1983)). The
definition of “employer” is broad enough to encompass an individual, who although lacking a
possessory stake in the corporation, “effectively dominate[s] [the corporation’s] administration or
otherwise acts, or has the power to act, on behalf of the corporation vis-á-vis its employees.” Reich
v. Circle C Inv., Inc., 998 F.2d 324, 329 (5th Cir. 1993); see also Grim Hotel, 747 F.2d at 972
(examining the definition in the context of one who “independently exercised control over the work
situation”). The Supreme Court has further held that “managerial responsibilities” and “substantial
control of the terms and conditions of the [employer’s] work” create statutory employer status. Falk
v. Brennan, 414 U.S. 190, 195, 94 S. Ct. 427 (1973); Grim Hotel, 747 F.2d at 972.
With regard to McLemore, the trial testimony established that she was a co-founder and
president of ASUI and that she worked in ASUI’s corporate offices. However, there was no
evidence demonstrating her operational control, if any, over the day-to-day management of the
plaintiffs and other employees of the company. Accordingly, plaintiffs have not shown that
McLemore is a statutory employer under the FLSA, and McLemore’s Rule 52(c) motion is
GRANTED.
3
Moreover, regarding Simien’s motion for judgment on partial findings, the evidence at trial
demonstrates significantly greater involvement on her part in the operations of ASUI than
McLemore. Simien had significant control over the plaintiffs’ employment, making ultimate
employment decisions, setting their schedules and pay rates, and reviewing their hours regularly.
Because these facts demonstrate a genuine dispute of material fact regarding Simien’s status as an
employer, her Rule 52(c) motion is DENIED.
B.
Defendants’ Post-Trial Objections
1.
Collateral Estoppel
On December 12, 2012, defendants filed a supplemental brief and argued that Judge
Hughes’s recent dismissal of another collective action against ASUI bars the court’s consideration
of the issues in this case. See Dkt. 51; Lee v. ASUI Healthcare & Dev. Ctr., No. H-12-cv-82, slip
op. at 1 (S.D. Tex. Oct. 19, 2012) (Hughes, J.) (final judgment). However, there is no indication in
Judge Hughes’s orders that the issue of the plaintiff’s FLSA status as an independent contractor or
employee was decided in that litigation. Thus, even if this court found that the other elements of
issue preclusion applied here, the court cannot afford preclusive effect to a previous decision that
did not necessarily include facts to be determined in this case. See Terrell v. DeConna, 877 F.2d
1267, 1270 (5th Cir. 1989) (explaining that a party may not relitigate an issue when “the issue in the
prior litigation has been a critical and necessary part of the judgment in that earlier action”).
Defendants’ collateral estoppel objection is OVERRULED.
2.
Plaintiffs’ FLSA Status
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Defendants object to plaintiffs’ FLSA status and claim that the evidence at trial demonstrated
that (a) plaintiffs should be classified as independent contractors and (b) the FLSA’s companionship
services exemption applies to preclude application of the overtime wage laws. Dkt. 48 at 1–10. The
court has already adjudicated these issues at the summary judgment stage, and defendants have not
presented a valid basis for the court to reconsider its liability determination. See Russ v. Int’l Paper
Co., 943 F.2d 589, 593 (5th Cir. 1991) (holding that an “unexcused failure to present evidence which
is available at the time summary judgment is under consideration constituted a valid basis for
denying a motion to reconsider”). The defendants’ objections on these points are OVERRULED.
3.
Plaintiffs’ Evidence of Damages
Defendants object to plaintiffs’ damages evidence on two grounds: (a) plaintiffs have not
presented adequate information for assessment of damages; and (b) plaintiffs’ evidence of damages
in summary chart form is inadmissible. Dkt. 48 at 14–15, 17–19. Regarding the completeness of
evidence regarding plaintiffs’ hours worked, the defendants have the duty to keep accurate records
of the hours worked by employees. Albanil v. Coast 2 Coast, Inc., 446 F. App’x 788, 806 (5th Cir.
2011). And when the defendant-employers fail to do so, employees need only produce sufficient
evidence to show the amount and extent of uncompensated overtime hours worked as a matter of just
and reasonable inference. Id. This burden can be satisfied with approximations of hours worked,
and plaintiffs’ recollections are correct unless rebutted by the defendants with contrary evidence.
See Pforr v. Food Lion, Inc., 851 F.2d 106, 108 (4th Cir. 1988); Ting Yao Lin v. Hayashi Ya II, Inc.,
No. 08-Civ.-6071, 2009 WL 289653, at *3 (S.D.N.Y. Jan. 30, 2009) (holding that the plaintiffs’
5
initial burden was satisfied by affidavits based on the plaintiffs’ recollections describing the time
spent performing various tasks that did not result in overtime compensation).
Here, the plaintiffs demonstrated at trial that the defendants’ recordkeeping and time entries
were substantially incomplete, as the defendants’ records incorrectly treated plaintiffs as independent
contractors and logged only part of the time that plaintiffs actually worked. Further, the defendants
did not meaningfully rebut the plaintiffs’ approximations at trial, and therefore the court may,
pending a determination of admissibility under the evidence rules, accept the plaintiffs’ estimates
of hours worked in its damage determination.
With regard to defendants’ objections to plaintiffs’ damage summaries, see Pls.’ Tr. Exs.
15–16, these exhibits were admitted during trial over defendants’ objections, and defendants’ posttrial brief does not present appropriate grounds for the court to reconsider its decision to admit the
summaries into evidence. These charts summarize hours worked, on a week by week basis, as
reflected in the defendants’ records and, where no records are available, as reflected in the plaintiffs’
testimony. Defendants’ objections are OVERRULED.
4.
DADS Regulations
Defendants next argue that plaintiffs should not receive overtime compensation because the
Texas Department of Aging and Disability Services (“DADS”) prohibits the billing of time when
the direct caregiver is not rendering services to the individual client. Dkt. 48 at 15–17. This
argument, even if true, misses the mark regarding the court’s overtime pay determination. DADS
regulations provide the parameters of reimbursement to Home and Community-based Services
(HCS) Program providers, and defendants have not shown that the DADS regulations supplant, or
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even address, the providers’ separate pay obligations to employees under the FLSA. In other words,
while an employee’s particular activity, such as sleep time, may not be billable under Texas’s billing
regulations, it does not follow that the employer is excused from compensating the employee for that
activity under federal wage law. See 29 C.F.R. § 785.21 (“An employee who is required to be on
duty for less than 24 hours is working even though he is permitted to sleep or engage in other
personal activities when not busy.”). Defendants’ objections to payment of overtime compensation
because of DADS regulations is therefore OVERRULED.
5.
Defendants McLemore and Simien’s Personal Liability
Defendants contend that McLemore and Simien are not statutory employers under the FLSA
and thus should not be held personally liable in this case. Dkt. 48 at 10–14. The court has already
found that McLemore is not a statutory employer. With regard to Simien, the court finds that she
exercised substantial control over the operational management of plaintiffs’ employment. She also
set the rate of pay for plaintiffs and personally reviewed their hours and compensation. Simien is a
statutory employer that should be held jointly and severally liable with ASUI for damages under the
FLSA, and defendants’ objection to Simien’s personal liability is OVERRULED.
6.
Liquidated Damages
Defendants argue that the court should exercise its discretion to eliminate defendants’
liability for liquidated damages. Dkt. 48 at 21–22. An employer who violates the FLSA is liable
for the unpaid wages and “an additional equal amount as liquidated damages.” 29 U.S.C. § 216(b).
The court may, however, exercise its discretion and decline to award liquidated damages “if the
employer shows to the satisfaction of the court that the act or omission giving rise to such action was
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in good faith and that he had reasonable grounds for believing that his act or omission was not a
violation of the [FLSA].” 29 U.S.C. § 260 (quoted in Bernard v. IBP, Inc. of Neb., 154 F.3d 259,
267 (5th Cir. 1998)). The employer faces a “substantial burden” to demonstrate good faith and a
reasonable belief that its actions did not violate the FLSA. Mireles v. Frio Foods, Inc., 899 F.2d
1407, 1415 (5th Cir. 1990). Further, the dual and specific findings of good faith and reasonable
grounds have been interpreted strictly by the Fifth Circuit. See Lee v. Coahoma County, Miss., 937
F.2d 220 (5th Cir. 1991) (citing LeCompte v. Chrysler Credit Corp., 780 F.2d 1260, 1262–63 (5th
Cir. 1986)). Good faith, for example, imposes a duty to investigate potential liability under the
FLSA. Barcellona v. Tiffany English Pub, Inc., 597 F.2d 464, 469 (5th Cir. 1979) (“Apathetic
ignorance is never the basis of a reasonable belief.”).
Here, defendants have not presented sufficient evidence that they made a concerted effort to
comply with federal wage law, and the court cannot find that defendants’ belief that the plaintiffs
were independent contractors was reasonable and the product of a good-faith investigation.
Accordingly, the court will not exercise its discretion to decline an award of liquidated damages to
the plaintiffs. Defendants’ objection to an award of liquidated damages is OVERRULED.
7.
Willfulness of Defendants’ FLSA Violations
Defendants contend that plaintiffs have not shown that the employers’ violation of the FLSA
was willful, and therefore the court should apply a two-year statute of limitations to plaintiffs’
claims. Dkt. 48 at 19–21; 29 U.S.C. § 255(a). An employer’s violation of the FLSA is “willful”
under the FLSA if the employer “knew or showed reckless disregard for the matter of whether its
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conduct was prohibited by the statute.” McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133, 108
S. Ct. 1677 (1988); Reich v. Bay, Inc., 23 F.3d 110, 117 (5th Cir. 1994).
The court has already found that liquidated damages are appropriate in this case because the
defendants did not act in good faith and with a reasonable belief in examining, if at all, whether their
actions violated the overtime pay requirements of the FLSA. This finding, however, does not
mandate the conclusion that defendants’ conduct was also willful. While the evidence adduced at
trial demonstrates that the defendants were negligent in evaluating their compliance with the FLSA,
plaintiffs have not shown that defendants knew or recklessly disregarded the fact that their conduct
was unlawful. Accordingly, although the court is troubled by the defendants’ pay practices that
violated federal law, the court does not find that the defendants’ conduct was willful. The court
applies the FLSA’s general two-year statute of limitations in its award of damages, as detailed below
in its findings of fact and conclusions of law.
C.
Findings of Fact1
1. ASUI is a HCS program provider that contracts with DADS to provide care to mentally
disabled individuals.
2. ASUI owns and/or operates ten (10) to twenty (20) group homes which provide home
based care for mentally disabled individuals and which are staffed, in part, by direct caregivers.
3. ASUI is engaged in the operation of an institution primarily engaged in the care of the
mentally ill.
1
To the extent any Finding of Fact reflects a legal conclusion, it shall to that extent be deemed a Conclusion of
Law, and to the extent any Conclusion of Law reflects a factual finding, it shall to that extent be deemed a Finding of
Fact.
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4. Simien is the Vice-President, Program Manager, and Director of ASUI.
5. Plaintiffs were employed by ASUI and Simien as direct caregivers to work overnight in
the residential group homes caring for mentally disabled individuals.
6. Howard was hired by Simien in 2005.
7. Chapman was hired by Simien in the fall of 2008.
8. Plaintiffs were scheduled to work one day on and one day off and paid by the hour.
9. Plaintiffs began their shifts at 2:00 p.m. when they met their clients at the dayhabilitation
(“dayhab”) facility owned by ASUI and accompanied them to the group home.
10. Plaintiffs worked in the group home from approximately 3:00 p.m. until 9:00 a.m. the
following morning when they accompanied the clients back to the dayhab facility. Plaintiffs were
scheduled off from work until 2:00 p.m. the next day although they were asked by Simien to work
extra shifts.
11. Plaintiffs were instructed to sign in at the time that they arrived in the group home each
day and to sign out at 10:00 p.m. each night. Plaintiffs were allowed to sign in again from 6:00 a.m.
until 9:00 a.m. when the clients left the home for the dayhab facility. Although plaintiffs remained
in the home overnight, their hours of work between 10:00 p.m. and 6:00 a.m. were off-the-clock
hours.
12. On average, plaintiffs worked off the clock for twenty-four (24) hours during one week
of the pay period and thirty-two (32) hours off the clock during the second week of the pay period.
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13. Plaintiffs were paid the same hourly rate of pay for their hours worked between 3:00
p.m. and 10:00 p.m. and 6:00 a.m. to 9:00 a.m. regardless of the number of hours they worked in a
workweek.
14. Howard worked for ASUI and Simien during the relevant period of August 18, 2009
through December 16, 2010.
15. From August 2009 through June 2010, Howard’s regular pay rate was $7.25 per hour.
16. From July 2010 through September 2010, Howard’s regular pay rate was $8.00 per hour.
17. From October 2010 through December 2010, Howard’s regular pay rate was $9.00 per
hour.
18. Chapman worked for ASUI and Simien for approximately thirteen (13) months between
August 18, 2009 and December 2010.
19. Chapman’s regular pay rate during her employment was $7.25 per hour.
20. ASUI’s payroll records for Chapman and Howard are inconsistent with the patient
service logs during the relevant two-year period at issue in this lawsuit.
21. ASUI’s employee records are inadequate to determine the actual number of hours
worked by plaintiffs between August 2009 and December 2010.
22. ASUI’s employee records do not accurately reflect the actual number of hours worked
by plaintiffs between August 2009 and December 2010.
23. Plaintiffs were required to meet their clients at ASUI’s dayhab facility at 2:00 p.m. each
shift but they were not allowed to clock in until they reached the group home.
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24. Simien has an ownership interest in ASUI and has, at all material times, been involved
in the day-to-day operations of ASUI.
25. McLemore is a co-founder and president of ASUI but was not involved in the day-to-day
operations of ASUI.
26. ASUI and Simien violated the FLSA by failing to pay plaintiffs for all of their hours
worked and for failing to pay plaintiffs overtime compensation for their hours in excess of forty (40)
hours in a workweek.
27. Between August 18, 2009 and December 6, 2010, Krystal Howard earned but was not
paid $27,182.56 in wages and overtime compensation.
28. Between August 18, 2009 and December 10, 2010, Vera Chapman earned but was not
paid $15,311.82 in wages and overtime compensation.2
D.
Conclusions of Law
1. The FLSA provides that every employer shall pay a minimum wage to their employees.
29 U.S.C. § 206(a).
2. No employer shall employ an employee for more than forty (40) hours in a workweek
unless such employee receives one and one-half times their regular rate of pay for each overtime
hour worked. Id. § 207(a)(1).
3. Sleep time is considered as time worked when the employee’s shift is less than twentyfour (24) hours. 29 C.F.R. § 785.21 (“An employee who is required to be on duty for less than 24
2
The court arrived at these figures after considering plaintiffs’ exhibits 15 & 16 and accepting the damage
estimates. The court reduced defendants ASUI and Simien’s liability by the sum of plaintiffs’ unpaid wages and overtime
before August 18, 2009, which is the accrual date for defendants’ liability under the FLSA’s 2-year statute of limitations.
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hours is working even though he is permitted to sleep or engage in other personal activities when not
busy.”); Nelson v. Ala. Inst. for Deaf & Blind, 896 F. Supp. 1108, 1112 (N.D. Ala. 1995). An
employee who is required to be on duty for less than 24 hours is working even though he or she is
permitted to sleep. 29 C.F.R. § 785.21.
4. Any employer who violates Sections 206 and 207 shall be liable to the aggrieved
employee in the amount of their unpaid compensation and in an additional equal amount as
liquidated damages. 29 U.S.C. § 216(b).
5. Section 216 of the FLSA provides that liquidated damages shall be awarded to prevailing
employees.
6. Liquidated damages are compensatory, not punitive in nature. Brooklyn Sav. Bank v.
O’Neil, 324 U.S. 697, 706 (1945) (“[T]he liquidated damages provision is not penal in its nature but
constitutes compensation for the retention of a workman’s pay which might result in damages too
obscure and difficult of proof for estimate other than by liquidated damages.”). Accordingly, the
granting of liquidated damages is mandatory under Section 216 of the FLSA except when the
employer shows to the satisfaction of the court that its act or omission was in good faith and based
upon reasonable grounds for believing that it was not violating the Act. Lowe v. Southmark Corp.,
998 F.2d 335, 337–38 (5th Cir. 1993).
7. The exception to liquidated damages imposes upon the employer a plain and substantial
burden to persuade the court by proof that its failure to obey the statute was in good faith and
predicated upon such reasonable grounds that it would be unfair to award liquidated damages.
Barcellona, 597 F.2d at 468.
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8. Good faith imposes some duty to investigate potential liability under the FLSA. Id. at
469. It requires that an employer take active steps to ascertain the dictates of the FLSA and then
move to comply with them. Reich v. S. New England Telecommunications Corp., 121 F.3d 58, 71
(2d Cir. 1997).
9. Because Simien and ASUI did not submit sufficient evidence that they made a concerted
effort to comply with federal wage law, the court does not find that defendants’ belief that the
plaintiffs were independent contractors was reasonable and the product of a good-faith investigation.
10. ASUI is an enterprise as defined in 29 U.S.C. § 203(s)(1)(B) of the FLSA.
11. An employment relationship existed between plaintiffs and ASUI.
12. Simien is personally liable as an employer for violations of the FLSA.
13. McLemore is not personally liable as an employer for violations of the FLSA.
E.
Plaintiffs’ Application for Attorneys’ Fees
Plaintiffs request attorneys’ fees related to the prosecution of this case. Dkt. 47 at 19–24.
Plaintiffs seek $75,901.25 in legal fees and $1,823.24 in costs for a total of $77,724.49 under the
lodestar analysis. Id. at 24. Defendants did not respond to plaintiffs’ application for attorneys’ fees.
The FLSA provides that “[t]he court in such action shall, in addition to any judgment
awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant,
and costs of the action.” 29 U.S.C. § 216(b). Fee awards are mandatory for prevailing plaintiffs in
FLSA cases. Kreager v. Solomon & Flanagan P.A., 775 F.2d 1541, 1542 (11th Cir. 1985). When
evaluating the proper amount of attorneys’ fees to be awarded, the court uses the lodestar method
and multiplies the number of hours reasonably spent on the case by an appropriate hourly rate in the
14
community for such work. Saizan v. Delta Concrete Prods. Co., 448 F.3d 795, 799 (5th Cir. 2006).
Then, after calculating the lodestar, the court considers whether to adjust the fee upward or
downward based on the relative weights of the twelve factors set forth in Johnson v. Georgia
Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). The lodestar may not be adjusted due to a
Johnson factor, however, if the creation of the lodestar amount already took that factor into account.
Migis v. Pearle Vision, 135 F.3d 1041, 1047 (5th Cir. 1998). “[A]n attorney’s failure to obtain every
dollar sought on behalf of his client does not automatically mean that the modified lodestar amount
should be reduced.” Singer v. City of Waco, 324 F.3d 813, 830 (5th Cir. 2003). Given the nature
of claims under the FLSA, it is not unusual for attorneys’ fees to exceed the amount of the judgment
in the case. Powell v. Carey Int’l, Inc., 547 F. Supp. 2d 1281, 1286 (S.D. Fla. 2008).
The prevailing market rate for similar services by similarly situated trained and experienced
lawyers in the relevant legal community is the established basis for determining a reasonable hourly
rate. Tollett v. City of Kemah, 285 F.3d 357, 368 (5th Cir. 2002). Here, plaintiffs’ counsel Mark
Siurek testified in his declaration regarding the reasonability of his firm’s fee request. See Dkt. 47,
Ex. A. The court has reviewed Siurek’s testimony regarding his experience, the experience of
associate counsel Patricia Haylon, and the experience of senior paralegal Susan Diedrich. The court
finds that the hourly rates provided are reasonable for attorneys and paralegals in Houston’s labor
and employment bar, namely $340.00 per hour for Siurek’s services, $325.00 per hour for Haylon’s
services, and $175.00 per hour for Diedrich’s services. See, e.g., Hilton v. Exec. Self Storage
Assocs., Inc., No. H-06-2744, 2009 WL 1750121, at *9 (S.D. Tex. June 18, 2009).
15
The second step in the lodestar analysis is to determine the number of hours reasonably
expended by counsel in the litigation. Plaintiffs bear the burden to show the reasonableness of the
hours billed and are responsible for proving that they exercised billing judgment. Saizan, 448 F.3d
at 799. Billing judgment requires documentation of the hours charged and of the hours written off
as unproductive, excessive, or redundant. Id.; see also Green v. Adm’rs of Tulane Educ. Fund, 284
F.3d 642, 662 (5th Cir. 2002).
The majority of fees submitted for reimbursement are for Haylon’s time in pretrial and posttrial matters and Siurek’s time during trial. Plaintiffs have not sought reimbursement for paralegal
time, nor have they requested reimbursement for Siurek’s time expended as a supervising attorney.
Further, plaintiffs have not sought fees for Haylon’s time during the settlement conference or trial
of this case. These limitations demonstrate consideration of the proper scope of reimbursement and
the exercise of billing judgment by plaintiffs’ counsel. Accordingly, the court finds that the
plaintiffs’ request of fees in the amount of $ 75,901.25 is reasonable under the lodestar analysis.
However, because the plaintiffs’ ultimate award of damages is approximately 63% of the requested
damages due to the lack of a willfulness finding, the court finds under a Johnson review that a 10%
reduction of attorneys’ fees is warranted in this case. See Saizan, 448 F.3d at 800 (stating that the
most critical single factor is the degree of success obtained). A 10% reduction in attorneys’ fees
yields a total fee award of $68,311.13.
Lastly, with regard to costs, the court may tax costs in favor of the prevailing party.
“Reimbursement for travel, meals, lodging, photocopying, long-distance telephone calls, computer
legal research, postage, courier service, mediation, exhibits, document scanning, and visual
16
equipment are types of litigation expenses that are recoverable under the FLSA as part of an
attorneys’ fee award.” Quintanilla v. A&R Demolition Inc., No. H-04-1965, 2007 WL 5166849, at
*9 (S.D. Tex. May 7, 2007). Court-reporter fees, copying fees, and docket fees are also recoverable
under the general cost-shifting statute, 28 U.S.C. § 1920.
The costs enumerated in plaintiffs’ application for fees, Dkt. 47, Ex. A at 11, are the types
of costs recoverable under the FLSA and fee-shifting statutes, and the court grants plaintiffs’
application for the taxation of costs in the amount of $1,823.24. The plaintiffs’ total recovery of fees
and costs as the prevailing parties in this FLSA case equals the sum of $68,311.13 and $1,823.24,
or $70,134.37.
F.
Conclusion
After considering the parties’ briefing and arguments on the pending issues, the evidence of
record, and applicable law, McLemore’s Rule 52(c) motion (Dkt. 44) is GRANTED, Simien’s Rule
52(c) motion (Dkt. 44) is DENIED, and plaintiffs’ application for attorneys’ fees (Dkt. 47) is
GRANTED. Other than defendants’ objection to a willfulness finding, defendants’ post-trial
objections (Dkt. 48) are OVERRULED.
The court will enter a separate final judgment in favor of plaintiffs. Defendants ASUI and
Simien are jointly and severally liable for $155,123.13 in damages, calculated as follows:
(1) $54,365.12 to plaintiff Krystal Howard ($27,182.56 for unpaid wages and overtime
compensation, and an additional equal amount as liquidated damages); (2) $30,623.64 to plaintiff
Vera Chapman ($15,311.82 for unpaid wages and overtime compensation, and an additional equal
17
amount as liquidated damages); and (3) $70,134.37 to the law firm of Warren & Siurek, LLP (as
reimbursement for reasonable attorneys’ fees of $68,311.13 and costs of $1,823.24 under a Johnson
and lodestar analysis).
It is so ORDERED.
Signed at Houston, Texas on February 6, 2013.
___________________________________
Gray H. Miller
United States District Judge
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