Allen et al v. Fusion Autoplex LLC
Filing
30
MEMORANDUM OPINION AND ORDER granting in part and denying in part 26 Opposed MOTION for Partial Summary Judgment (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
United States District Court
Southern District of Texas
ENTERED
March 31, 2017
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
RODNEY ALLEN, CEDRICK CALLEGARI
KERMICIA FAULKNER, and
BERNADETTE GREEN, Individually
and on Behalf of all Others
Similarly Situated,
§
§
§
§
§
§
§
§
§
§
Plaintiffs,
v.
FUSION AUTOPLEX LLC,
David J. Bradley, Clerk
CIVIL ACTION NO. H-16-0833
§
§
§
Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiffs,
Faulkner,
and
Rodney
Bernadette
Allen,
Cedrick
Green,
bring
Callegari,
this
Kermicia
collective
action
against defendant, Fusion Autoplex LLC, for unpaid overtime wages
pursuant to the Fair Labor Standards Act ("FLSA"), 29 U.S.C.
et seq.
§
201,
Pending before the court is Plaintiffs' Traditional and No
Evidence
Judgment")
Motion
for
Summary
Judgment
(Docket Entry No. 26).
("Motion
for
Summary
For the reasons explained below,
the motion will be granted in part and denied in part.
I.
Undisputed Facts
The parties do not dispute that plaintiffs Allen, Callegari,
and Faulkner either are or were employed by Defendant as Porters. 1
1
See
Deposition
of
Ali
Alshrouf
(Defendant's corporate
(continued ... )
Defendant
verbally
schedules. 2
assigned
Plaintiffs
weekly,
40-hour
work
Defendant paid Plaintiffs hourly rates ranging from
$10.00 to $11.25 per hour. 3
Plaintiffs were not required to record
the hours they actually worked, and Defendant did not maintain any
records of its own. 4
II.
Standard of Review
Summary judgment is authorized if the movant establishes that
there is no genuine dispute about any material fact and the law
entitles it to judgment.
material
facts
are
Fed. R. Civ. P. 56(c)
"genuine"
if
the
evidence
Disputes about
is
such
that
a
reasonable jury could return a verdict for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 106 S. Ct. 2505, 2511 (1986).
The
Supreme Court has interpreted the plain language of Rule 56(c) to
mandate the entry of summary judgment "after adequate time for
discovery and upon motion,
showing
sufficient
to
against a party who fails to make a
establish
the
existence
of
an
element
for
Summary
1
( • • • continued)
representative), Exhibit D to Plaintiffs' Motion
Judgment, Docket Entry No. 26-4, 64:21-65:13.
2
Defendant Fusion Autoplex LLC'S Answers to Plaintiffs'
Request for Admissions, First Interrogatories, and First Request
for Production, Exhibit A to Plaintiffs' Motion for Summary
Judgment, Docket Entry No. 26-1, p.3, ~ 4.
3
4
Id. at 2,
~
Id. at 2-3,
24:20-25:17.
3.
~
3; Alshrouf Deposition, Docket Entry No. 26-4,
-2-
essential to that party's case, and on which that party will bear
the burden of proof at trial."
Ct. 2548, 2552 (1986).
Celotex Corp. v. Catrett, 106 S.
A party moving for summary judgment "must
'demonstrate the absence of a genuine issue of material fact,' but
need not negate the elements of the nonmovant's case."
Liquid Air Corp.,
37 F. 3d 1069, 1075
(quoting Celotex,
106 S.
Ct.
(5th Cir. 1994)
at 2553-54) .
Little v.
(en bane),
If the moving party
meets this burden, Rule 56(c) requires the nonmovant to go beyond
the pleadings
and show by affidavits,
depositions,
answers
to
interrogatories, admissions on file, or other admissible evidence
that specific facts exist over which there is a genuine issue for
trial.
reviewing
Id.
(citing
the
Celotex,
evidence
"the
106
court
S.
Ct.
at
must
draw
inferences in favor of the nonmoving party,
credibility determinations
Sanderson Plumbing Products,
or weigh the
2553-2554) .
all
In
reasonable
and it may not make
evidence."
Inc., 120 S. Ct. 2097,
Reeves
2110
v.
(2000).
Factual controversies are to be resolved in favor of the nonmovant,
"but only when
contradictory facts."
both parties
have
submitted evidence of
Little, 37 F.3d at 1075.
-3-
III.
A.
Analysis
Applicable Law
Plaintiffs seek to hold Defendant liable for violation of the
overtime provision of the FLSA.
This provision requires employers
to pay one and one-half times employees' regular rate for all hours
worked in excess of forty hours per week.
29 U.S.C.
§
order to prevail on their claim for unpaid overtime,
must prove by a preponderance of the evidence:
of
an employment
relationship;
( 2)
that
207(a).
In
Plaintiffs
(1) the existence
they were
engaged
in
commerce or employed by an enterprise engaged in commerce; (3) that
Defendant failed to pay them overtime required by the FLSA; and (4)
that they are owed the amount claimed by a
Id. ;
inference.
see also Harvill v.
just and reasonable
Westward Communications,
L.L.C., 433 F.3d 428, 439 (5th Cir. 2005).
B.
Application of the Law to the Facts
Plaintiffs seek summary judgment on four issues:
Plaintiffs Callegari and Faulkner Non-Exempt Employees?;
(1)
Were
(2) Were
Plaintiffs Callegari and Faulkner denied payment for overtime hours
worked?;
(3)
Were
Fusion
Autoplex
LLC' s
actions
towards
Cederick Callegari and Kermecia Faulkner such gross violations of
the
FLSA' s
mandated?;
provisions
and
(4)
affirmative defense
that
Is
there
that
statute of limitation?
an award of
any
liquidated damages
evidence
Plaintiffs'
in
claims are
support
of
is
an
barred by the
Defendant does not address the first issue
-4-
in its Response, and the court concludes that there is no genuine
issue of material fact as to Plaintiffs' non-exempt status.
Plaintiffs assert as "undisputed" the fact that they worked
fifty
(50)
to sixty
(60)
hours per week. 5
In support of this
allegation, Plaintiffs offer the deposition testimony of plaintiff
Allen 6 and handwritten time records purporting to show the actual
Defendant argues that the handwritten
hours Plaintiffs worked.
time records are inadmissible hearsay.
The court agrees.
The
comments to Rule 56 state that "a party may object that material
cited to support or dispute a fact cannot be presented in a form
that would be admissible
Advisory Committee Notes,
Fed.
in evidence."
2010 Amendment.
R.
Ci v.
P.
56 . ,
"The burden is on the
proponent to show that the material is admissible as presented or
to
explain
the
admissible
form
that
is
anticipated."
Id.
Plaintiffs have offered no reply in support of the admissibility of
the handwritten records.
Assuming arguendo that the records are admissible, neither the
records nor Allen's testimony conclusively proves that Defendant
"employed"
Plaintiffs
during
those
hours. 7
Ali
Alshrouf,
Defendant's corporate representative, testified in his deposition
that Plaintiffs were only scheduled for 40 hours per week and that
5
p. 13,
Plaintiffs' Motion for Summary Judgment, Docket Entry No. 26,
~ 13.
6
Deposition of Rodney Allen, Exhibit E to Plaintiffs' Motion
for Summary Judgment, Docket Entry No. 26-5, 21:16-20.
7
The FLSA defines "employ" as including "to suffer or permit
to work." 29 U.S.C. § 203(g).
-5-
he was not aware of any of the Plaintiffs working more than the
scheduled number of hours. 8
" [A] n employer's actual or imputed
knowledge that an employee is working is a necessary condition to
finding
the
employer suffers
or permits
that
work."
Gotham Registry, Inc., 514 F.3d 280, 287 (2d Cir. 2008)
omitted) .
Alshrouf' s
controversy as
deposition
testimony
to Defendant's knowledge.
creates
Chao v.
(citations
a
factual
For summary judgment
purposes the court must resolve such factual controversies in favor
of the nonmovant.
The court therefore concludes that Plaintiffs
have not met their summary judgment burden to prove that they were
denied payment for overtime hours worked.
As a result, it would be
premature to address the issue of liquidated damages.
Plaintiffs
also
seek
summary
affirmative defense of limitations.
judgment
as
to
Defendant's
Plaintiffs style their motion
as a "no-evidence" motion for summary judgment and reference Texas
Rule of Civil Procedure 166a.
A no-evidence motion for summary
judgment, however, is a pleading that may be filed in state court,
not federal court.
Bank of America, N.A. v. Fulcrum Enterprises,
LLC, 20 F. Supp. 3d 594, 602 (S.D. Tex. 2014)
(citing Castaneda v.
Flores, Civil Action No. 5:05-CV-129, 2007 WL 1671742, at *2 (S.D.
Tex. June 8, 2007)).
The court will therefore continue to apply
the Rule 56 standards stated above.
8
Alshrouf Deposition, Docket Entry No. 26-4, 75:20-78:15.
-6-
An action to recover unpaid overtime compensation "may be
commenced within two years after the cause of action accrued .
except that a cause of action arising out of a willful violation
may be commenced within three years after the cause of action
accrued
.
II
29
u.s.c.
§
255(a).
The longer,
three-year
period applies if Defendant "knew or showed reckless disregard for
the matter of whether its conduct was prohibited by the statute."
McLaughlin v. Richland Shoe Co., 108 S. Ct. 1677,
(1988)
Bay,
Conduct that is
Inc.,
23 F.3d 110,
117
(5th Cir.
merely negligent or unreasonable,
level of a "willful" violation.
1994).
however,
i
Reich v.
does not rise to the
See Mireles v. Frio Foods, Inc.,
899 F.2d 1407, 1416 (5th Cir. 1990).
Plaintiffs have the burden of
establishing willful conduct by the Defendants.
Cox v. Brookshire
Grocery Co., 919 F.2d 354, 356 (5th Cir. 1990).
Plaintiffs cite Alshrouf's deposition testimony as evidence
that
Defendant
"knew of
the
act,
but
failed
to make
adequate
inquiry into whether its conduct was in violation of the act. " 9
The cited testimony shows
( 1)
that Alshrouf knew that
the
law
required him to pay employees overtime if they worked overtime and
(2) that Alshrouf had heard of the FLSA but did not know "every bit
of it." 10
It does not show that Alshrouf was either engaged in or
aware of conduct that violated the FLSA.
Plaintiffs offer no other
9
Plaintiffs' Motion for Summary Judgment, Docket Entry No. 26,
p. 23, ~ 28 (citing Alshrouf Deposition, Docket Entry No. 26-4,
70:21-24, 71:4-10.)
10
Alshrouf
71:4-10.
Deposition,
Docket
-7-
Entry
No.
26-4,
70:21-24,
evidence that any alleged violation was willful.
Plaintiffs
prove
that
there
was
a
Moreover, until
violation,
it
would
be
inappropriate to decide whether some hypothetical violation was
Summary
willful.
judgment
will
therefore
be
denied
as
to
limitations.
IV.
For
the
reasons
Conclusion and Order
stated
above,
the
court
concludes
that
Plaintiffs have proven that there is no genuine issue of material
fact
as
to
Defendant.
burden
on
whether
Plaintiffs
were
non-exempt
employees
of
But Plaintiffs have not met their summary judgment
any
of
the
remaining
issues
raised.
Plaintiffs'
Traditional and No Evidence Motion for Summary Judgment
(Docket
Entry No. 26) is therefore GRANTED in part and DENIED in part.
SIGNED at Houston, Texas, on this 31st day
ch, 2017.
LAKE
UNITED STATES DISTRICT JUDGE
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