United States District Court, S.D. Texas, Houston Division
Tricia Papesh, Individually and on Behalf of Others Similarly Situate Plaintiff,
Move It Management, L.L.C., et al., Defendants.
SUMMARY JUDGMENT OPINION AND ORDER
Stephen Wm Smith United States Magistrate Judge.
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
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. 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.
& 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
move for summary judgment on the grounds that Papesh cannot
prove MIM was aware that she worked any unpaid overtime
hours,  and that MS Sub Clear Lake, L.L.C. was not
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
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).
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).
Papesh's overtime claim
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).
reflected in her timesheets,  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. It would not be not surprising if she
received after-hour phone calls from her supervisors, and
Papesh's voluminous phone records indicate she
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. Papesh contends
that this ...