United States District Court, W.D. Texas, El Paso Division
BRIONES, SENIOR UNITED STATES DISTRICT JUDGE
day, the Court considered Defendants Coleman World Group,
LLC, Coleman American Moving Services, Inc., and Coleman
American Companies, Inc.'s (collectively,
"Defendants") "Motion for Summary
Judgment" ("Motion"), filed in the
above-captioned case on February 6, 2017. Therein, Defendants
ask the Court to grant summary judgment in their favor on all
of Plaintiff Jorge Magana's ("Mr. Magana")
claims. On February 26, 2017, Plaintiff untimely filed his
"Response to Defendants' Motion for Summary
Judgment" ("Response"). On March 6, 2017,
Defendants filed their Reply to Plaintiff s Response. On
March 13, 2017, Plaintiff filed two motions-one asking for
leave to untimely file his Response and another asking for an
extension of time to file his Response-which the Court denied
on March 31, 2017. On April 3, 2017, the Court struck
Plaintiffs Response from the record. That same day, the Court
issued a short order granting summary judgment in favor of
Defendants on all of Mr. Magana's claims. The Court
indicated that it would later issue a memorandum opinion
explaining the ruling's basis. This is the corresponding
an employment discrimination, minimum wage, and retaliation
case. Mr. Magana is a fifty-nine-year-old Hispanic,
Latin-American, and Mexican-American man with brown skin.
Pl's Second Am. Compl. ¶ 8. He claims that while he
worked for Defendants, they discriminated against him based
on his age (in violation of the Age Discrimination in
Employment Act of 1967, 29 U.S.C. § 623
("ADEA")) and national origin and skin color (in
violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e-2 ("Title VII") and the Texas
Commission on Human Rights Act, Tex. Lab. Code § 21.051
("TCHRA")) by paying him less than younger white
men and promoting them without advertising the positions.
PI.' s Second Am. Compl. ¶¶ 47--48, 51. He also
claims that Defendants did not pay him the minimum wage
required by the Fair Labor Standards Act, 29 U.S.C. §
215 ("FLSA"). Pl's Second Am. Compl. ¶ 52.
When he complained about his pay and discrimination, he
claims that Defendants retaliated against him in violation of
Title VII, the TCHRA, and the FLSA. Id. ¶¶
Magana worked-through a staffing agency-as a temporary worker
for Defendants beginning in April 2014. Id. ¶
14; Defs.' Mot. Summ. J. 4. Defendants are a group of
companies, collectively referred to as "Coleman, "
which provide moving and storage services. Defs.' Mot.
Summ. J. 2. Employees at Coleman serve in a variety of
capacities including in administrative, driving, and
warehouse roles. Id. at 2-3. Of these, warehouse
associates, helpers, and packers assume similar tasks that
are assigned interchangeably. Id. at 2.
point while Mr. Magana was a temporary worker, Defendants
hired a white man named James Silva ("Mr. Silva").
Id. at 4; Pl's Second Am. Compl. ¶ 17. Mr.
Magana testified in a deposition that Defendants asked him to
train Mr. Silva and that Mr. Silva told him that he earned $
10 per hour. Defs.' Mot. Summ. J., Ex. C at 36. However,
Defendants' business records reflect that they paid Mr.
Silva $9 per hour. Id., Ex. A-2. Mr. Magana
complained to his supervisor that "the good ole' boy
system was alive and well at Coleman." Pl's Second
Am. Compl. ¶ 22.
August 14, 2014, Defendants hired Mr. Magana as a full-time
employee. Defendants agreed to pay Mr. Magana $9 per hour for
warehouse work; this would be his regular wage. Defs.'
Mot. Summ J., Ex. A at ¶ 7, Ex. A-l, Ex. A-6. Four other
employees in Mr. Magana's position were paid more than $9
per hour and all of them were Hispanic and over forty years
old. Id., Ex. A at ¶ 7, Ex. A-2. For work
outside the warehouse, Defendants paid all employees,
including Mr. Magana, according to the "hundredweight
system." Id., Ex. A at ¶¶ 9-13, Ex.
A-1, Ex. A-6. The hundredweight system determined an
aggregate pay for all the workers in a shift based on the
weight of the items in a shipment and then distributed that
aggregate amount in proportion to each worker's regular
wage. Id., Ex. A at ¶¶ 9-11. Under this
system, for example, a worker whose regular wage was $20 per
hour would make twice the amount of the worker whose regular
wage was $ 10 per hour. Id., Ex. A at ¶ 11.
Mr. Magana worked shifts under the hundredweight system, he
could make more or less than $9 per hour depending on how
much work he and his team collectively completed. For some
weeks in which Mr. Magana worked non-warehouse shifts, the
hundredweight system resulted in a rate less than $7.25 per
hour for those shifts. See id., Ex. A-6 (documenting
payments on October 6, 2014, December 8, 22, and 29, 2014,
and January 20, 2015, that compensated Mr. Magana less than
$7.25 per hour under the hundredweight system). However, Mr.
Magana's pay records reflect additional shifts at the
$9-per-hour rate during each of those weeks. Id. As
a result, the rate for all the shifts in each week exceeded
$7.25 per hour.
pay records for Mr. Magana show that during his tenure at
Coleman his pay fluctuated, both in terms of his gross weekly
pay and his wage calculated on a weekly basis. For example,
his gross weekly pay averaged $450.94 per week in September,
$311.07 per week in October, $237.14 per week in November,
$432.06 per week in December, and $256.91 per week in
January. Id., Ex. A-6. At the same time, his three
lowest-wage weekly paychecks occurred on October 6, 2014
($7.65/hour), December 29, 2014 ($7.25/hour), and January 20,
2015 ($7.25/hour). His three highest-wage weekly paychecks
occurred on October 27, 2014 ($12.83/hour), November 24, 2014
($15.01/hour), and January 12, 2015 ($12.06/hour).
Id. Despite the frequent fluctuation, his average
weekly wage was higher in September through November than it
was in December or January. See Id. (averaging
$9.80/hour in September, $10.29/hour in October, $11.43/hour
in November, $8.91/hour in December, and $9.26/hour in
Magana lived about twenty-five miles from the Coleman
worksites. Id., Ex. C at 31. Defendants did not pay
Mr. Magana for his travel between his home and his work.
Id. Sometimes Mr. Magana drove to work and did not
receive a work assignment. Id. On a few occasions,
Mr. Magana spent five to ten minutes waiting to see if an
assignment was available or more time waiting for someone to
drive him home after finding out that there was no
assignment. Id., Ex. C at 33-34. Defendants did not
pay Mr. Magana for this wait time. Id.
August 2014 to January 2015, there were no advertised
promotions at the company. Id., Ex. A at ¶ 14;
Pl's Second Am. Compl. ¶ 16. Mr. Magana claims that
Defendants promoted his white coworkers through an informal
word-of-mouth system. Pl's Second Am. Compl. ¶ 16.
In a deposition, Mr. Magana stated that he assumed a younger
white man named Matthew Bowland ("Mr. Bowland") had
been promoted because he had started telling the other
employees what to do. Defs.' Mot. Summ J., Ex. C at 42.
Defendants' business records reflect that Mr. Bowland
held the same position as Mr. Magana and was not promoted.
Id., Ex. A-2. Mr. Magana also claimed in his
deposition that although management never advertised a
promotion, he thought that management was going to put a
younger white man named Kyle Musser ("Mr. Musser")
"in charge." Id., Ex. C at 44.
Defendants' business records reflect that Mr. Musser held
the same position as Mr. Magana. Id., Ex. A-2.
Magana claims that in November 2014 he complained that the
company was not paying him for all of his work. Pl's
Second Am. Compl. ¶¶ 31-32. He claims that he
complained again in November or December 2014, when he walked
in on his coworkers complaining to his supervisor about pay
discrepancies and racial discrimination and joined the
conversation. Id. at ¶¶ 30(A)-30(B).
Finally, he claims that on or about January 21, 2015, he
complained to his superior, Chris Regan ("Mr.
Regan"), about discrimination and retaliation and told
Mr. Regan that he was filing a complaint with the Equal
Employment Opportunity Commission and the Texas Workforce
Commission. PI.' s Second Am. Compl. ¶ 38;
Defs.' Mot. Summ. J., Ex. C at 51. That same day, Mr.
Magana resigned from his job. PI.' s Second Am. Compl.
court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). "A party asserting that a fact
cannot be or is genuinely disputed must support the assertion
by ... citing to particular parts of materials in the record.
. . ." Fed.R.Civ.P. 56(c)(1). "[T]he plain language
of Rule 56 mandates 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, 477 U.S. 317,
the moving party bears the burden of demonstrating the
absence of a genuine issue of material fact."
Cannata v. Catholic Diocese of Austin, 700 F.3d 169,
172 (5th Cir. 2012) (citing Celotex, 477 U.S. at
323). Where, as here, the nonmoving party will bear the
burden of proof at trial, the moving party may satisfy its
summary judgment burden by "'showing'-that is,
pointing out to the district court-that there is an absence
of evidence to support the nonmoving party's case."
Celotex, 477 U.S. at 325. While the moving party
"must demonstrate the absence of a genuine issue of
material fact, it does not need to negate the elements of the
nonmovant's case." Duffie v. United States,
600 F.3d 362, 371 (5th Cir. 2010).
is "material" only if it would permit "a
reasonable jury . . . [to] return a verdict for the nonmoving
party" and "might affect the outcome of the
suit." Douglass v. United Servs. Auto. Ass
'n, 65 F.3d 452, 458-59 (5th Cir. 1995),
aff'd en banc, 79 F.3d 1415 (5th Cir. 1996)
(citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248, 250 (1986)). "If the moving party fails to
meet its initial burden, the motion for summary judgment must
be denied, regardless of the nonmovant's response."
Duffie, 600 F.3d at 371 (internal quotation marks
omitted). "When the moving party has met its Rule 56
burden, the nonmoving party cannot survive a summary judgment
motion by resting on the mere allegations of its
pleadings." Id. The nonmovant "must
identify specific evidence in the record and articulate [how]
that evidence supports that party's claim."
Id. "This burden is not satisfied with
'some metaphysical doubt as to the material facts, '
by 'conclusory allegations, ' by 'unsubstantiated
assertions, ' or by 'only a "scintilla" of
evidence.'" Id. (quoting Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en
banc)). "In deciding a summary judgment motion, the
court draws all reasonable inferences in the light most
favorable to the nonmoving party." Id. (citing
Liberty Lobby, 477 U.S. at 255).
Mr. Magana's Discrimination Claims
Defendants argue that the Court should grant summary judgment
in their favor on all of Mr. Magana's discrimination
claims. Defs.' Mot. Summ. J. 5. Mr. Magana claims that
Defendants discriminated against him based on his national
origin and skin color when they allegedly compensated him
less than a white employee and based on his national origin
and skin color and his age when they failed to promote
Pl. 's Second Am. Compl. ¶¶ 47-48, 51.
Defendants argue that Mr. Magana cannot make a prima facie
case of discrimination because he cannot identify specific
instances in which someone outside his class was paid more or
promoted. Defs. Mot. Summ. J. 7-9.
plaintiff brings a Title VII or ADEA discrimination claim
without direct evidence of discrimination, a court must apply
the "McDonnell Douglas burden-shifting
framework." Jenkins v. City of San Antonio Fire Dep
%784 F.3d 263, 267 (5th Cir. 2015) (citing
McDonnell Douglas Corp. v. Green,411 U.S. 792, 793
(1913)); Bauer v. Albemarle Corp., 169 F.3d
962, 966 (5th Cir. 1999) ("The same evidentiary
procedure for allocating burdens of production and ...