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)

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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 -8-

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