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Papesh v. Move It Management, L.L.C.

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

June 5, 2017

Tricia Papesh, Individually and on Behalf of Others Similarly Situate Plaintiff,
Move It Management, L.L.C., et al., Defendants.


          Stephen Wm Smith United States Magistrate Judge.

         This Fair Labor Standards Act (FLSA) case is before the court on defendants' motion for summary judgment (Dkt. 21). Having considered the parties' submissions, the law, and arguments at a hearing on the record in open court on May 23, 2017, it is ordered that defendants' motion is denied.[1]


         The following facts are undisputed unless otherwise noted. Tricia Papesh was hired on May 23, 2012 by Watson & Taylor Management, Inc. to manage a self-storage facility in Webster, Texas. At that time she was paid $12.00 per hour. Watson & Taylor transferred its employees to Move It Management, LLC (MIM) in April, 2013. Papesh remained employed as the manager of the same self-storage facility, and her pay was increased to $14.00 per hour. Throughout her employment Papesh was required to enter her time through a computer timekeeping program managed by a professional employment organization.[2] On several occasions, Papesh requested corrections to her time sheets after submission. From January 2013 through April 2015, she was paid for approximately 720 overtime hours. She was terminated on May 22, 2015.

         Watson & Taylor's and MIM's timekeeping and overtime policies were set forth in employee handbooks. MIM's 2015 employee handbook contains the following provision:

Prohibited ‘Off the Clock' Work

At not time should employees perform work while ‘off the clock.' All time spent working should be properly recorded. If given a directive to perform work ‘off the clock, ' please promptly notify your corporate supervisor, or if your corporate supervisor has given a directive to work ‘off the clock' and/or has told you not to properly record all hours worked, notify your Insperity human resource specialist. No employee will be penalized in any way for making such a complaint.[3]

         Defendants move for summary judgment on the grounds that Papesh cannot prove MIM was aware that she worked any unpaid overtime hours, [4] and that MS Sub Clear Lake, L.L.C. was not her employer.

         Summary Judgment Standards

         Summary judgment is appropriate if no genuine issues of material fact exist, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The party moving for summary judgment has the initial burden to prove there are no genuine issues of material fact for trial. Provident Life & Accident Ins. Co. v. Goel, 274 F.3d 984, 991 (5th Cir. 2001). Dispute about a material fact is “genuine” if the evidence could lead a reasonable jury to find for the nonmoving party. In re Segerstrom, 247 F.3d 218, 223 (5th Cir. 2001). “An issue is material if its resolution could affect the outcome of the action.” Terrebonne Parish Sch. Bd. v. Columbia Gulf Transmission Co., 290 F.3d 303, 310 (5th Cir. 2002).

         If the movant meets this burden, “the nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial.” Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 282 (5th Cir. 2001) (quoting Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995)); Caboni v. Gen. Motors Corp., 278 F.3d 448, 451 (5th Cir. 2002). If the evidence presented to rebut the summary judgment is not significantly probative, summary judgment should be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). In determining whether a genuine issue of material fact exists, the court views the evidence and draws inferences in the light most favorable to the nonmoving party. Id. at 255; Hotard v. State Farm Fire & Cas. Co., 286 F.3d 814, 817 (5th Cir. 2002).


         The FLSA is a remedial statute that requires employers to pay non-exempt employees overtime at an hourly rate “not less than one and one-half time the regular rate at which he is employed.” 29 U.S.C. § 207(a). Papesh bears the burden of proving that defendants did not pay her all the overtime pay she was entitled to receive. See Samson v. Apollo Resources, Inc., 242 F.3d 629, 636 (5th Cir. 2001). Papesh also bears the burden of proving that defendant MS Sub Clear Lake, L.L.C. was her employer. Id.; Martinez-Mendoza v. Champion Intern. Corp., 340 F.3d 1200, 1209 (11th Cir. 2003).

         A. Papesh's overtime claim

         Papesh claims that she was forced to work overtime “off the clock.” MIM has produced pay records for every day of Papesh's employment. Papesh does not dispute that those records reflect the hours she actually reported. When an employer keeps accurate pay records, it is plaintiff's burden to prove “the employer knew or had reason to believe that the reported information was inaccurate.” Brumbelow v. Quality Mills, Inc., 462 F.2d 1324, 1327 (5th Cir. 1972). Where an employee fails to notify her employer or prevents her employer from discovering that she is working overtime, the employer's failure to pay for overtime hours is not a violation of the FLSA. Newton v. City of Henderson, 47 F.3d 746, 747 (5th Cir. 1995).

         As reflected in her timesheets, [5] Papesh's regular hours were roughly 8:00 a.m. until 6:00 p.m. Monday through Friday and 9:00 a.m. until 2:00 p.m. Saturday. However, it is undisputed that the storage-facility, which included a business center and commercial lease space, operated 24 hours a day. Papesh represents without contradiction that her responsibilities included servicing the business at any hour needed.[6] It would not be not surprising if she received after-hour phone calls from her supervisors, and Papesh's voluminous phone records indicate she did.[7] Papesh has reviewed the phone records to identify specific instances when she received a call from a manager, but the time is not entered on her timesheets.[8] Papesh contends that this ...

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