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Allen v. Fusion Autoplex LLC

United States District Court, S.D. Texas, Houston Division

March 31, 2017

RODNEY ALLEN, CEDRICK CALLEGARI KERMICIA FAULKNER, and BERNADETTE GREEN, Individually and on Behalf of all Others Similarly Situated, Plaintiffs,



         Plaintiffs, Rodney Allen, Cedrick Callegari, Kermicia Faulkner, and Bernadette Green, bring this collective action against defendant, Fusion Autoplex LLC, for unpaid overtime wages pursuant to the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et seq. Pending before the court is Plaintiffs' Traditional and No Evidence Motion for Summary Judgment ("Motion for Summary Judgment") (Docket Entry No. 26) . 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] Defendant verbally assigned Plaintiffs weekly, 40-hour work schedules.[2] 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. Fed.R.Civ.P. 56(c). 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, 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, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." 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." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc), (quoting Celotex, 106 S.Ct. at 2553-54). 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. Id. (citing Celotex, 106 S.Ct. at 2553-2554). In reviewing the evidence "the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Products, Inc., 120 S.Ct. 2097, 2110 (2000). Factual controversies are to be resolved in favor of the nonmovant, "but only when . . . both parties have submitted evidence of contradictory facts." Little, 37 F.3d at 1075.

         Ill. Analysis

         A. 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. § 207(a). In order to prevail on their claim for unpaid overtime, Plaintiffs must prove by a preponderance of the evidence: (1) the existence of an employment relationship; (2) that 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 just and reasonable inference. Id.; see also Harvill v. 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: (1) Were Plaintiffs Callegari and Faulkner Non-Exempt Employees?; (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 provisions that an award of liquidated damages is mandated?; and (4) Is there any evidence in support of an affirmative defense that Plaintiffs' claims are barred by the statute of limitation? 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 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 hours Plaintiffs worked. Defendant argues that the handwritten 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 in evidence." Fed.R.Civ.P. 56., Advisory Committee Notes, 2010 Amendment. "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 4 0 hours per week and that 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." Chao v. Gotham Registry, Inc., 514 F.3d 280, 287 (2d Cir. 2008) (citations omitted). Alshrouf's deposition testimony creates a factual controversy as 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.

         Plaintiffs also seek summary judgment as to Defendant's 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, ...

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