Worsham v. B.G. Property Management, LLC

Filing 80

ORDER ADOPTING MEMORANDUM AND RECOMMENDATIONS re: 77 Memorandum and Recommendations, 57 MOTION for Partial Summary Judgment , 58 MOTION for Summary Judgment . (Signed by Judge Charles Eskridge) Parties notified.(jengonzalez, 4)

Case 4:16-cv-02712 Document 80 Filed on 11/18/20 in TXSD Page 1 of 4
United States District Court
Southern District of Texas

ENTERED
November 18, 2020
David J. Bradley, Clerk

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
ALEXANDRA JADE
WORSHAM, individually
and on behalf of all others
similarly situated, et al,
Plaintiffs,
vs.
BG PROPERTY
MANAGEMENT LLC,
et al,
Defendants.

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CIVIL ACTION NO.
4:16-cv-02712

JUDGE CHARLES ESKRIDGE

ORDER ADOPTING
MEMORANDUM AND RECOMMENDATION
Before the Court is the Memorandum and Recommendation
signed by the Magistrate Judge on September 4, 2020. Dkt 77.
Defendants BG Property Management LLC, Juan Hernandez Jr,
Juan “Guero” Hernandez, Guero Family LP, and Houston
Rooming Houses LLC have filed a limited objection. Dkt 78.
Named plaintiff Alexandra Jade Worsham and opt-in plaintiffs
Ruth Ashe-Lilley, Terri Grimmett, Thurman Gibson, Torrie
Enard, and Debra Ann Donaldson responded. Dkt 79.
The Memorandum and Recommendation resolved three
motions. The Magistrate Judge first recommended granting the
motion for leave to supplement the summary judgment record
filed by Plaintiffs. Dkt 77 at 14–15. Plaintiffs had moved for leave
to supplement the summary judgment record with the declaration
of Debra Ann Donaldson, a similarly situated property manager
and opt-in plaintiff. Dkt 68 at 1. Defendants essentially argued
that the declaration had scant evidentiary value. Dkt 71 at ¶ 8.

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Plaintiffs argued that the declaration was still relevant to the
claims in the case. Dkt 68 at ¶ 4. The Magistrate Judge found the
declaration didn’t raise new issues and was relevant. Dkt 77 at 15.
He granted the motion for leave to supplement the summary
judgment record. Ibid.
The Magistrate Judge next recommended that the motion for
partial summary judgment filed by Plaintiffs be granted in part
and denied in part. Dkt 77 at 24, 27–28, 30–31. Plaintiffs in this
action assert FLSA claims for unpaid minimum wage, unpaid
overtime, willful conduct, and retaliation. See generally Dkt 11.
They moved for summary judgment on all claims except
retaliation. See generally Dkt 57.
With respect to the unpaid overtime claims, the Magistrate
Judge recommended granting summary judgment “to any
Plaintiff in the class where there is a Contractor Labor Time
Sheet produced by Defendants undisputedly showing that such
Plaintiff worked uncompensated overtime (as shown by
Worsham working uncompensated overtime from April 11–16,
2016 and Ashe-Lilley working uncompensated overtime from
March 7–12, 2016).” Dkt 77 at 24. He also recommended
denying summary judgment “as to all other times where there is
not a substantiating Contractor Labor Time Sheet produced by
Defendants.” Ibid.
With respect to the unpaid minimum wage claims, the
Magistrate Judge issued four recommendations. First, he
recommended granting summary judgment “to any Plaintiff in
the class that was not paid more than $225 during any week
(excluding any ‘rent credit’) because it is undisputed that the hourly
wage was less than the $7.25 minimum hourly wage.” Id at 27–28
(emphasis in original). Second, he recommended granting
summary judgment “to Worsham for work performed from April
11–16, 2016 and to Ashe-Lilley for work performed from March
7–12, 2016 because it is undisputed that they both worked 48 hours
during those weeks and were only paid $6.25 per hour ($300
divided into 48 hours and excluding any ‘rent credit’).” Id at 28
(emphasis in original). Third, he recommended granting summary
judgment “to any Plaintiff in the class where there is a Contractor
Labor Time Sheet produced by Defendants undisputedly showing

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that such Plaintiff worked overtime (similar to Worsham and
Ashe-Lilley) and was paid less than the $7.25 minimum hourly
wage (excluding any ‘rent credit’).” Ibid (emphasis in original).
And fourth, he recommended denying summary judgment “to all
other Plaintiffs in the class that were paid more than $250 per
week (excluding any ‘rent credit’) except if there [is] a Contractor
Labor Time Sheet produced by Defendants undisputedly
showing that such Plaintiff worked overtime (similar to Worsham
and Ashe-Lilley) and was paid less than the $7.25 minimum
hourly wage (excluding any ‘rent credit’).” Ibid.
With respect to the retaliation and willfulness claims, the
Magistrate Judge recommended denying summary judgment
because factual disputes remain. Id at 30–31.
The Magistrate Judge last recommended denying the motion
for summary judgment or for partial summary judgment filed by
Defendants. Dkt 77 at 32. Defendants had sought summary
judgment as to each of the Plaintiffs’ FLSA claims. See generally
Dkt 58. The Magistrate Judge determined that “genuine issues of
material fact exist on all Plaintiffs’ claims except where the Court
has recommended that Plaintiffs’ motion for summary judgment
be granted.” Dkt 77 at 32.
Plaintiffs filed no objection to the Memorandum and
Recommendation. Defendants filed a limited objection, arguing
that the Court should decline to adopt the recommendation to
grant partial summary judgment as to the FLSA claims for unpaid
minimum wage and unpaid overtime, which was based on a
finding that “timesheets mean hours worked.” Dkt 78 at ¶ 8
(emphasis original). They at base argue that a genuine dispute of
material fact still exists as to whether “office hours were all hours
worked under the FLSA.” Id ¶ at 16. Plaintiffs responded with
citations to documents and depositions upon which the
Magistrate Judge relied. Dkt 79.
The district court conducts a de novo review of those
conclusions of a magistrate judge to which a party has specifically
objected. See 28 USC § 636(b)(1)(C); United States v Wilson, 864
F2d 1219, 1221 (5th Cir 1989). To accept any other portions to
which there is no objection, the reviewing court need only satisfy
itself that no clear error appears on the face of the record. See

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Guillory v PPG Industries Inc, 434 F3d 303, 308 (5th Cir 2005), citing
Douglass v United Services Automobile Association, 79 F3d 1415, 1420
(5th Cir 1996); see also FRCP 72(b) Advisory Comm Note
(1983).
The Court has reviewed the pleadings, the record, the
applicable law, the objection, and the response. The Court has
also reviewed de novo the recommendation of the Magistrate Judge
as to the FLSA claims pleaded against Defendants to the extent
raised by their objections.
The Memorandum and Recommendation is ADOPTED as the
Memorandum and Order of this Court. Dkt 77.
The objections raised by Defendants are OVERRULED.
Dkt 78.
SO ORDERED.
Signed on November 18, 2020, at Houston, Texas.

Hon. Charles Eskridge
United States District Judge

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