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,
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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.

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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
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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).
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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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