Allen et al v. Fusion Autoplex LLC
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
March 31, 2017
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
RODNEY ALLEN, CEDRICK CALLEGARI
KERMICIA FAULKNER, and
BERNADETTE GREEN, Individually
and on Behalf of all Others
FUSION AUTOPLEX LLC,
David J. Bradley, Clerk
CIVIL ACTION NO. H-16-0833
MEMORANDUM OPINION AND ORDER
against defendant, Fusion Autoplex LLC, for unpaid overtime wages
pursuant to the Fair Labor Standards Act ("FLSA"), 29 U.S.C.
Pending before the court is Plaintiffs' Traditional and No
(Docket Entry No. 26).
For the reasons explained below,
the motion will be granted in part and denied in part.
The parties do not dispute that plaintiffs Allen, Callegari,
and Faulkner either are or were employed by Defendant as Porters. 1
(continued ... )
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
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.
Fed. R. Civ. P. 56(c)
reasonable jury could return a verdict for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 106 S. Ct. 2505, 2511 (1986).
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,
against a party who fails to make a
( • • • continued)
representative), Exhibit D to Plaintiffs' Motion
Judgment, Docket Entry No. 26-4, 64:21-65:13.
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.
Id. at 2,
Id. at 2-3,
3; Alshrouf Deposition, Docket Entry No. 26-4,
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
(5th Cir. 1994)
at 2553-54) .
If the moving party
meets this burden, Rule 56(c) requires the nonmovant to go beyond
and show by affidavits,
interrogatories, admissions on file, or other admissible evidence
that specific facts exist over which there is a genuine issue for
inferences in favor of the nonmoving party,
Sanderson Plumbing Products,
or weigh the
and it may not make
Inc., 120 S. Ct. 2097,
Factual controversies are to be resolved in favor of the nonmovant,
"but only when
submitted evidence of
Little, 37 F.3d at 1075.
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.
order to prevail on their claim for unpaid overtime,
must prove by a preponderance of the evidence:
(1) the existence
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
see also Harvill v.
just and reasonable
L.L.C., 433 F.3d 428, 439 (5th Cir. 2005).
Application of the Law to the Facts
Plaintiffs seek summary judgment on four issues:
Plaintiffs Callegari and Faulkner Non-Exempt Employees?;
Plaintiffs Callegari and Faulkner denied payment for overtime hours
Cederick Callegari and Kermecia Faulkner such gross violations of
statute of limitation?
an award of
barred by the
Defendant does not address the first issue
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
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.
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,
56 . ,
"The burden is on the
proponent to show that the material is admissible as presented or
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
Defendant's corporate representative, testified in his deposition
that Plaintiffs were only scheduled for 40 hours per week and that
Plaintiffs' Motion for Summary Judgment, Docket Entry No. 26,
Deposition of Rodney Allen, Exhibit E to Plaintiffs' Motion
for Summary Judgment, Docket Entry No. 26-5, 21:16-20.
The FLSA defines "employ" as including "to suffer or permit
to work." 29 U.S.C. § 203(g).
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
Gotham Registry, Inc., 514 F.3d 280, 287 (2d Cir. 2008)
to Defendant's knowledge.
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.
affirmative defense of limitations.
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.
Alshrouf Deposition, Docket Entry No. 26-4, 75:20-78:15.
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
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,
Conduct that is
23 F.3d 110,
merely negligent or unreasonable,
level of a "willful" violation.
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
inquiry into whether its conduct was in violation of the act. " 9
The cited testimony shows
that Alshrouf knew that
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
Plaintiffs' Motion for Summary Judgment, Docket Entry No. 26,
p. 23, ~ 28 (citing Alshrouf Deposition, Docket Entry No. 26-4,
evidence that any alleged violation was willful.
inappropriate to decide whether some hypothetical violation was
Conclusion and Order
Plaintiffs have proven that there is no genuine issue of material
But Plaintiffs have not met their summary judgment
Traditional and No Evidence Motion for Summary Judgment
Entry No. 26) is therefore GRANTED in part and DENIED in part.
SIGNED at Houston, Texas, on this 31st day
UNITED STATES DISTRICT JUDGE
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