Sola v. Umbrella Surgical Support, LC et al
Filing
57
MEMORANDUM OPINION AND ORDER granting 48 MOTION for Partial Summary Judgment, granting 49 MOTION for Partial Summary Judgment (Joint Pretrial Order due by 11/2/2018. Docket Call set for 11/9/2018 at 03:00 PM in Courtroom 9B before Judge Sim Lake.) (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
United States District Court
Southern District of Texas
ENTERED
October 18, 2018
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
EDWIN SOLA and TERRY NICHOLAS,
David J. Bradley, Clerk
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Plaintiffs,
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§
V.
UMBRELLA SURGICAL SUPPORT, LC,
ESTUARDO A. MOTA; VALTA
INDUSTRIES, INC. d/b/a
PROFESSIONAL SURGICAL SERVICES;
COASTAL ASSISTANT GROUP LLC;
and AMANDA H. WOOD,
Defendants.
CIVIL ACTION NO. H-16-3258
MEMORANDUM OPINION AND ORDER
Plaintiffs Edwin Sola ("Sola") and Terry Nicholas ("Nicholas")
(collectively,
Support,
LC
Industries,
"Plaintiffs")
("Umbrella"),
Inc.
sued
Defendants
Estuardo
A.
Umbrella
Mota
("Mota"),
Valta
( "Valta"), Coastal Assistant Group LLC ( "CAG") ,
and Amanda H. Wood ("Wood")
(collectively, "Defendants") alleging
both FLSA violations and breach of contract claims.
the
Surgical
court are Defendants
Umbrella Surgical
Pending before
Support,
LC,
Val ta
Industries, Inc. and Estuardo A. Mota's Motion for Partial Summary
Judgment
Mota's
as
to
MPSJ")
Plaintiff's
(Docket
FLSA Claims
Entry
No.
49)
("Umbrella,
and
Valta,
Defendants
and
Coastal
Assistant Group LLC and Amanda H. Wood's Motion for Partial Summary
Judgment ("CAG and Wood's MPSJ")
(Docket Entry No. 48).
reasons stated below, both motions will be granted.
For the
I.
Plaintiffs'
Factual Background 1
claims originate from their employers'
failure to properly compensate them.
claim that
alleged
Plaintiffs Sola and Nicholas
they worked for Defendants as
surgical assistants. 2
Plaintiffs were both salaried employees who were paid at a fixed
rate regardless of the hours they worked.
Umbrella, Valta, and CAG
are involved in the business of employing surgical assistants to
assist doctors during surgical procedures.
The entities appear to
work together to provide the services of their surgical assistants
to hospitals and doctors.
Valta. 3
Mota is the owner of both Umbrella and
Wood is the president of and a member of CAG. 4
1
See, generally, Plaintiffs' First Amended Complaint, Docket
Entry No. 4.
2
There is a dispute among the parties as to which Defendants
employed Sola and Nicholas. Sola and Nicholas argue that they were
employed by all of the Defendants.
See Plaintiffs' First Amended
Complaint, Docket Entry No. 4, pp. 5-9.
CAG argues in its Motion
for Partial Summary Judgment that it did not have an employment
contract with Sola. See CAG and Wood's MPSJ, Docket Entry No. 48,
p. 3.
CAG also argues that while it may have had an employment
contract with Nicholas, Nicholas did not perform any services for
CAG in 2016, when the alleged nonpayment occurred. See id. Wood
argues that she was not the employer of either Sola or Nicholas
under the FLSA and that she did not have an employment contract
with Sola or Nicholas in her individual capacity. See id. at 4-5.
In his affidavit, Mota states that Plaintiffs did not provide
services to Valta or Mota individually. See Affidavit of Estuardo
Mota ("Mota Affidavit"), Exhibit 3 to Umbrella, Valta, and Mota's
MPSJ, Docket Entry No. 49-3, p. 1. Umbrella also disputes that it
was Plaintiffs' employer. See Defendant Umbrella Surgical Support
LC's Answer to First Amended Complaint, Docket Entry No. 22, p. 45.
3
See Mota Affidavit, Exhibit 3 to Umbrella, Valta, and Mota's
MPSJ, Docket Entry No. 49-3, p. 1.
4
See Declaration of Amanda Wood, Exhibit 5 to CAG and Wood's
MPSJ, Docket Entry No. 48-5, p. 1.
-2-
Plaintiffs'
Amended Complaint alleges that while they were
employed by Defendants they regularly worked over 40 hours each
week and Defendants failed to pay them overtime as required by the
Fair Labor Standards Act
("FLSA") . 5
Plaintiffs also allege that
Defendants breached their employment contracts with Plaintiffs by
failing to compensate them during the last several weeks of their
employment. 6
Defendants argue that they are entitled to summary judgment on
Plaintiffs'
FLSA claims because Plaintiffs have no evidence that
they worked over 40 hours in any given week,
required for recovery of FLSA overtime.
proof of which is
CAG and Wood also seek
summary judgment on Plaintiffs' breach of contract claims.
II.
Standard of Review
Summary judgment is appropriate if the movant establishes that
there is no genuine dispute about any material fact and the movant
is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a).
Disputes about material facts are genuine "if the evidence is such
that a reasonable jury could return a verdict for the nonmoving
party."
Anderson v.
Liberty Lobby,
Inc.,
106 S.
Ct.
2505,
2510
5
Plaintiffs claim that they were compensated for overtime at
a rate of $50 per hour, an amount less than the FLSA requirement of
1.5 times their hourly rate.
6
Sola alleges that Defendants failed to compensate him for the
last 6 weeks of his employment.
Nicholas alleges that Defendants
failed to compensate him for the last 5 weeks of his employment.
See Plaintiffs' First Amended Complaint, Docket Entry No. 4,
pp. 10-11.
-3-
(1986).
The moving party is entitled to judgment as a matter of
law if "the nonmoving party has failed to make a sufficient showing
on an essential element of her case with respect to which she has
the burden of proof."
Celotex Corp. v. Catrett, 106 S. Ct. 2548,
2552 (1986).
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."
37 F.3d 1069, 1075 (5th Cir. 1994)
Celotex, 106 S. Ct. at 2553).
Little v. Liquid Air Corp. ,
(en bane)
(per curiam)
(quoting
"If the moving party fails to meet
this initial burden, the motion must be denied, regardless of the
nonmovant's response."
this burden,
Id.
If, however,
"the nonmovant must
the moving party meets
go beyond the pleadings"
and
produce evidence that specific facts exist over which there is a
genuine
issue
for
trial.
Id.
(citing Celotex,
106 S.
Ct.
at
2553-554) .
In reviewing the evidence "the court must draw all reasonable
inferences in favor of the nonmoving party,
credibility determinations
Sanderson Plumbing Products,
or weigh
the
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 there is an actual controversy, that is, when both
parties have submitted evidence of contradictory facts."
37 F.3d at 1075.
-4-
Little,
III.
Analysis
Defendants argue that they are entitled to summary judgment on
Plaintiffs'
FLSA
claims
because
Plaintiffs
cannot
carry
their
burden to prove either that overtime work was performed or the
extent of such work.
Plaintiffs argue that summary judgment is not
warranted because they have presented sufficient evidence that they
worked over 40 hours per week.
CAG and Wood also argue that they are entitled to summary
judgment on Plaintiffs'
breach of contract claims against them.
Wood argues that she did not have a contract with either Sola or
Nicholas.
CAG argues that it did not have a contract with Sola.
While CAG admits that it had a contract with Nicholas, CAG claims
that
Nicholas
dispute.
performed no work
In response,
for
CAG during
the period in
Plaintiffs argue only that they performed
services for Defendants and that summary judgment should not be
granted on their breach of contract claims against Wood and CAG.
A.
FLSA Claims
Under the FLSA "no employer shall employ any of his employees
. for a workweek longer than forty hours unless such employee
receives compensation for his employment in excess of the hours
above specified at a rate not less than one and one-half times the
regular rate at which he is employed."
29 U.S.C.
§
207 (a) (1).
Defendants argue that they are entitled to summary judgment on
Plaintiffs' FLSA claims because Plaintiffs have no evidence that
-5-
they worked over 40 hours in any given week.
Wood also argues in
the alternative that she was not Plaintiffs'
FLSA
and,
therefore,
be
argue
Plaintiffs
cannot
while
the
that
held
employer under the
liable
parties
did
under
not
the
keep
FLSA.
precise
records, other documents (such as paychecks, case logs, and on-call
schedules) prove that they worked overtime hours.
The parties dispute the meaning of "overtime."
The Plaintiffs
were often paid "overtime" compensation by Defendants even though
their time sheets show that they did not work over 40 hours during
those weeks.
For overtime to be compensable under the FLSA, the
total hours worked in one week must exceed 40 hours.
The FLSA does
not recognize a cause of action for employees to recover under an
employer's policy to pay overtime under different or less stringent
requirements than those imposed by the FLSA.
The parties also disagree as to whether Plaintiffs' "on-call
time"
constitutes
overtime.
hours
worked
for
purposes
of
calculating
On-call hours do not necessarily equal hours worked.
See Bright v. Houston Northwest Medical Center Survivor, Inc., 934
F.2d 671,
674-75
(5th Cir.
1991).
To determine whether on-call
time is working time, the court must determine whether the employee
was "engaged to wait" or "waiting to be engaged."
Skidmore v.
Swift & Co., 65 S. Ct. 161, 163 (1944).
"Whether on-call time is
compensable
the
working
time
depends
upon
working
agreements
between the parties governing on-call work and the degree to which
the employee is permitted or free to engage in personal activities
-6-
during periods of idleness when he is subject to call."
DePriest
v. River West LP, 187 F. App'x 403, 404-05 (5th Cir. 2006).
the
FLSA,
an
on-call
employee
is
not
entitled
to
"Under
'have
substantially the same flexibility or freedom as he would if not on
call,'
and is not entitled to payment for on-call time if he is
able to use it effectively for personal purposes, such as eating,
sleeping,
watching television,
activity."
or engaging in other recreational
DePriest, 187 F. App' x at 405 (quoting Bright, 934 F. 2d
at 676-78).
Sola and Nicholas's service agreements provided that their
"on-call" hours were from 6:30AM to 3:30 PM. 7
Plaintiffs argue
that because their on-call time each week totaled 40 hours or more,
any hours worked outside their on-call time necessarily constitute
overtime hours under the FLSA.
Defendants argue that Plaintiffs'
on-call time does not equal hours worked for FLSA purposes because
Plaintiffs testified in their depositions that they were able to
use on-call time for personal purposes.
Sola stated that when he
was not actually working with a patient he was on "standby. " 8
Sola
7
See Surgical Assistant's Services Agreement (between Sola and
Valta), Exhibit A to Plaintiffs Edwin Sola's and Terry Nicholas's
Response to Defendants Coastal Assistant Group LLC's and Amanda H.
Wood's Motion for Partial Summary Judgment ("Plaintiffs' Response
to CAG and Wood's MPSJ"), Docket Entry No. 51-2, p. 1; Surgical
Assistant's Services Agreement (between Nicholas, CAG, and Valta),
Exhibit B to Plaintiffs' Response to CAG and Wood's MPSJ, Docket
Entry No. 51-3, p. 1.
8
See Deposition of Edwin Sola ("Sola Deposition"), Exhibit 1
to Umbrella, Val ta, and Mota's MPSJ, Docket Entry No. 4 9-1,
p. 72:10-19.
-7-
testified that during this standby time he would drive around and
listen to audio books,
take breaks in the doctor's lounge,
sometimes go to the gym.
9
and
Nicholas acknowledged that at times
during his on-call hours he was "at home helping [his] kids with
homework, cooking dinner, being with [his]
family,
church. " 10
able
to
time
while
personal
Because
activities
Plaintiffs
during
were
on-call
[or]
freely
going to
engage
they
were
in
not
actually working, not all of Plaintiffs' on-call hours constitute
compensable working time for FLSA purposes.
hours
worked by
Plaintiffs
outside
of
their
Therefore,
on-call
not all
time
are
overtime hours compensable under the FLSA.
To recover for unpaid overtime under the FLSA when accurate
time records are unavailable -- which Plaintiffs claim is the case
here 11
--
the employee must ( 1) prove that he has performed work for
which he was improperly compensated and
( 2)
produce sufficient
evidence to show the amount and extent of that work as a matter of
just and reasonable inference.
334, 336 (5th Cir. 2017)
Kirk v. Invesco, Ltd., 700 F. App'x
(citing Anderson v. Mount Clemens Pottery
Co., 66 S. Ct. 1187, 1192 (1946)).
To raise a just and reasonable
inference as to the amount and extent of the work performed, the
9
See id. at 92:9-11, 106:13-18.
10
See Deposition of Terry Nicholas ("Nicholas Deposition") ,
Exhibit 2 to Umbrella, Val ta, and Mota's MPSJ, Docket Entry
No. 49-2, p. 69:14-16.
11
See Plaintiffs
Defendants Umbrella
Inc.'s, and Estuardo
Docket Entry No. 52,
Edwin Sola's and Terry Nicholas's Response to
Surgical Support, LC's, Valta Industries,
Mota's Motion for Partial Summary Judgment,
p. 2.
-8-
employee need not prove "the precise extent of the uncompensated
work."
Id. at 336-37.
"But an employee must provide more than
mere unsubstantiated assertions."
Id. at 337 (internal quotations
omitted).
In Invesco the plaintiff alleged that her employer violated
the FLSA by failing to compensate her for overtime.
The
plaintiff
argued
that
even
though
Id. at 335-36.
accurate
records
were
unavailable,
she had evidence that she worked over 40 hours per
week.
This evidence included her own testimony that she
worked more
than
60
hours
per week;
work emails
sent before,
during, and after business hours; GPS phone records showing days
where
she
stayed at
work
for
more
than
11-13
hours;
and
the
testimony of her mother and a colleague that she worked on weekends
and in the evenings.
Id. at 335.
After evaluating the evidence,
the Fifth Circuit concluded that the district court was correct to
grant summary judgment for the plaintiff's employer.
Id. at 337.
The court noted that the plaintiff's own testimony and evidence of
"sporadic instances" during which she worked outside of typical
work hours, coupled with the plaintiff's admission that her work
schedule
was
varied,
was
insufficient
to
raise
a
just
and
reasonable inference that she worked overtime.
Like the plaintiff in Invesco,
Plaintiffs admit that their
schedules varied based on the patients they worked with on any
given day. 12
Nicholas testified that he could not estimate the
12
See Sola Deposition, Exhibit 1 to Umbrella, Valta, and Mota's
MPSJ, Docket Entry No. 49-1, p. 92:12.
-9-
hours
he
worked
in
a
week. 13
given
The
only
evidence
to
substantiate Plaintiffs' overtime claims are time logs 14 and checks,
neither of which prove that Plaintiffs worked over 40 hours in any
given week.
Plaintiffs argue that their time sheets prove they
worked overtime because both Plaintiffs logged "overtime" hours.
However, the fact that Plaintiffs were paid "overtime" as defined
by their employer does not mean that the Plaintiffs worked overtime
hours
for
purposes
of
the
FLSA,
which
requires
overtime
compensation under its requirements only when the employee works in
excess of 40 hours in a week.
Plaintiffs have failed to provide the court with any evidence,
other than their own testimony, that they worked over 40 hours in
any
given
week
for
any
of
the
Defendants.
Plaintiffs'
uncorroborated testimony does not raise an issue of material fact
that they worked overtime; nor does it raise a just and reasonable
inference as
hours.
to the amount and extent of
the alleged overtime
The court need not decide whether Wood is an employer for
FLSA purposes because there are no genuine issues of material fact
13
See Nicholas Deposition, Exhibit 2 to Umbrella, Valta, and
Mota's MPSJ, Docket Entry No. 49-2, pp. 68:4-69:16.
14
Defendants submitted Plaintiffs' time logs detailing the
procedures they worked, the doctors they worked for, and how much
time they spent on each procedure.
See 2016 Time Records for
Nicholas, Exhibit 4 to Umbrella, Valta, and Mota's MPSJ, Docket
Entry No. 49-4; 2016 Time Records for Sola, Exhibit 5 to Umbrella,
Valta, and Mota's MPSJ, Docket Entry No. 49-5.
Defendants also
submitted personal logs kept by Nicholas as to additional
procedures worked.
See Nicholas's Book, Exhibit 6 to Umbrella,
Val ta, and Mota's MPSJ, Docket Entry No. 4 9-6.
Even with the
addition of time logged in Nicholas's personal book, there is no
evidence that Plaintiffs worked over 40 hours in any given week.
-10-
regarding Plaintiffs' FLSA claims against Defendants.
motions
for
summary
judgment
on
Plaintiffs'
FLSA
Defendants'
claims
will
therefore be granted.
B.
Breach of Contract Claims
Plaintiffs' Amended Complaint also asserts breach of contract
claims
against
all
Defendants.
Defendants
Mota,
Valta,
and
Umbrella did not move for summary judgment on Plaintiffs' breach of
contract claims.
Defendants CAG and Wood argue
entitled to summary judgment on Plaintiffs'
that
they are
breach of contract
claims for unpaid wages because there is no evidence that there was
a contract between Sola and CAG or Wood, no evidence that there was
a
contract
between Nicholas
and Wood,
and
no
performance
was
provided by Nicholas to CAG during the period in which Nicholas
claims he was not paid.
Plaintiffs argue that Nicholas had a
contract with CAG and that CAG breached the contract by failing to
properly compensate Nicholas.
Plaintiffs also argue that both Sola
and Nicholas worked for CAG and Wood in 2016.
Under Texas law the elements of a breach of contract claim are
"(1) the existence of a valid contract; (2) performance or tendered
performance by the plaintiff;
(3)
breach of the contract by the
defendant; and (4) damages sustained by the plaintiff as a result
of the breach."
Mullins v. TestAmerica,
Inc.,
564 F.3d 386, 418
(5th Cir. 2009).
Plaintiffs have presented two written contracts in response to
CAG and Wood's motion.
The first contract is between Sola and
-11-
Valta. 15
The second contract is between Nicholas, CAG, and Valta. 16
Wood is not a party to either of these agreements.
Plaintiffs do
not argue the existence of any other contracts that would entitle
them to recovery (either oral or written) .
Plaintiffs also do not
argue quasi-contractual theories of relief
or unjust enrichment. 17
Plaintiffs have presented no evidence that they had contracts
with Wood in her individual capacity.
Plaintiffs merely make the
conclusory statement that they "worked for Defendants" during the
duration of their employment.
services
for
an
entity
that
Merely because Plaintiffs performed
Wood manages
does
not
mean
that
Plaintiffs had a contract with Wood in her individual capacity.
There are no genuine disputes of material fact as to the first
element
of
Plaintiffs'
breach of
contract
claims
against
Wood
because Plaintiffs have no evidence that a valid contract existed
between Sola or Nicholas and Wood.
15
See Surgical Assistant's Services Agreement, Exhibit A to
Plaintiffs' Response to CAG and Wood's MPSJ, Docket Entry No. 51-2,
p. 1.
16
See Surgical Assistant's Services Agreement, Exhibit B to
Plaintiffs' Response to CAG and Wood's MPSJ, Docket Entry No. 51-3,
p. 1.
17
A quasi-contract is not a true contract, but rather a legal
obligation imposed for equitable reasons to prevent a party from
obtaining an undue advantage.
See Fortune Production Co. v.
Conoco, Inc., 52 S.W.3d 671, 684 (Tex. 2000). Unjust enrichment is
not an independent cause of action, but rather characterizes the
result of a failure to compensate for benefits wrongfully received
under circumstances giving rise to a quasi-contractual obligation
to repay. Walker v. Cotter Properties, Inc., 181 S.W.3d 895, 900
(Tex. App. --Dallas 2006, no pet. hist.)
-12-
Plaintiffs have also failed to present the court with any
evidence
that
there
Plaintiffs do not
was
base
a
contract
their arguments
contract between Sola and CAG.
performed work for CAG.
CAG
and
received
between
Sola
and
on an oral
CAG.
or written
Plaintiffs only allege that Sola
Merely because Sola performed services for
compensation
from
CAG
during
his
period
of
employment with some or all of Defendants does not mean that Sola
had a contract with CAG.
There is no genuine dispute of material
fact as to the first element of Sola's breach of contract claim
against
CAG because
there
is
no
evidence
of
a
valid contract
between Sola and CAG.
Nicholas
did
Plaintiffs
have
sufficient
to
have
failed
raise
a
a
to
contract
present
genuine
with
Valta
and
the
court
with
dispute
of
material
CAG,
but
evidence
fact
as
to
whether Nicholas performed work for CAG in 2016 that CAG failed to
compensate him for.
through 2015. 18
CAG paid Nicholas for his services by check
The evidence reflects that Nicholas was paid by
Lincoln Surgical Support LLC and Umbrella Surgical Support LC in
2016, but not by CAG. 19
Nicholas alleges that CAG failed to pay him
for the last five weeks of his employment in 2016. 20
Plaintiffs
18
See Nicholas's Paychecks, Exhibit H to Plaintiffs' Response
to CAG and Wood's MPSJ, Docket Entry No. 51-9, pp. 5-13, 15-63,
65-115.
19
See Nicholas's Paychecks, Exhibit H to Plaintiffs' Response
to CAG and Wood's MPSJ, Docket Entry No. 51-9.
20
p.
11
See Plaintiffs' First Amended Complaint, Docket Entry No. 4,
(arguing that Defendants (including CAG) failed to pay
(continued ... )
-13-
fail to explain, however, how those five weeks differ from the rest
of 2016, during which there is no evidence that CAG paid Nicholas
any compensation.
CAG is entitled to summary judgment on this
claim because there is no evidence that Nicholas performed services
for CAG in 2016 or that CAG breached a contract with Nicholas by
failing to pay him during the disputed five weeks.
Although
issues
remain
as
to
whether
Plaintiffs
were
improperly compensated during the last weeks of their employment, 21
this issue alone does not mean that Plaintiffs have a cognizable
breach of contract claim against Wood or CAG.
There is no evidence of a contract between Sola and Wood or
CAG;
or between Nicholas and Wood.
While there was a contract
between Nicholas and CAG, there is insufficient evidence to create
a genuine dispute of material fact as to whether Nicholas performed
services for CAG in 2016 for which CAG failed to compensate him.
For these reasons, summary judgment will be granted on Plaintiffs'
breach of contract claims against CAG and Wood.
20
( • • • continued)
Nicholas for the last five weeks of his employment and failing to
argue that CAG did not compensate Nicholas during the rest of
2016) .
21
Compare 2016 Time Records for Nicholas, Exhibit 4 to
Umbrella, Valta, and Mota's MPSJ, Docket Entry No. 49-1, with
Nicholas's Paychecks, Exhibit H to Plaintiffs' Response to CAG and
Wood's MPSJ, Docket Entry No. 51-9 (showing time Nicholas logged
with Umbrella through September 2016 and paychecks Nicholas
received from Umbrella through August 2016).
-14-
IV.
Conclusion
For the reasons stated above,
Defendants Umbrella Surgical
Support, LC, Valta Industries, Inc. and Estuardo Mota's Motion for
Partial Summary Judgment as to Plaintiffs'
Entry No.
49)
and Defendants
Coastal
FLSA Claims
Assistant
Group
(Docket
LLC
and
Amanda H. Wood's Motion for Partial Summary Judgment (Docket Entry
No. 48) are GRANTED.
The joint pretrial order will be filed by November 2, 2018.
Docket
call
Courtroom
will
9-B,
be
9th
on
Floor,
November
United
9,
2018,
States
at
3:00
Courthouse,
p.m.,
515
in
Rusk
Avenue, Houston, Texas 77002.
SIGNED at Houston, Texas, on this 18th day of October, 2018.
UNITED STATES DISTRICT JUDGE
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