United States District Court, W.D. Texas, San Antonio Division
RODRIGUEZ UNITED STATES DISTRICT JUDGE.
date the Court considered United States Magistrate Judge
Henry J. Bemporad's Report and Recommendation in the
above-numbered and styled case, filed November 9, 2017,
(Docket no. 135) and Defendant Stevens Tanker Division, LLC
(“Stevens”)'s objections thereto (Docket no.
136). After careful consideration, the Court will ACCEPT
Magistrate Judge Bemporad's recommendation, DENY
Defendant's Motion for Summary Judgment (Docket no. 114),
GRANT IN PART and DENY IN PART Dispatcher Class's Motion
for Summary Judgment (Docket no. 118), and GRANT IN PART and
DENY IN PART Plaintiff Espinosa's Motion for Summary
Judgment (Docket no. 119).
filed this Fair Labor Standards Act (“FLSA”)
collective action “on behalf of all similarly situated
present and former employees of Defendant who were either
misclassified and/or not properly paid for all overtime due
and/or not paid for all hours worked.” Docket no. 1 at
3. Plaintiff is a former employee of Stevens and, during his
employment, Plaintiff was classified as an exempt employee.
Id. During the workweeks that he worked, Plaintiff
worked about eighty-four hours, but he was allegedly not paid
for overtime or wages for all hours worked. Id.
Plaintiff states he was misclassified as exempt. Id.
alleges that Defendant “knowingly, willfully, or with
reckless disregard” failed to pay Plaintiff overtime
compensation, and that Plaintiff complained. Id.
Plaintiff alleges that Defendant violated provisions of
Sections 6 and 7 of the FLSA, 29 U.S.C. §§ 206-7
and 215(a)(2) by employing employees in an enterprise engaged
in commerce or in the production of goods for commerce for
workweeks longer than forty hours without proper compensation
for the work in excess of forty hours per week. Id.
argues that Plaintiff was an exempt employee in accordance
with the administrative exemption under the FLSA. Docket no.
5 at 9. Plaintiff argues that he and opt-in class members
engaged in work that was clerical in nature, and thus, the
administrative exemption does not apply. Docket no. 118 at 6.
31, 2017, Defendant filed a Motion for Summary Judgment.
Docket no. 114. On the same date, the Dispatcher Class filed
a Motion for Summary Judgment, Docket no. 118, and Plaintiff
Espinosa filed an individual Motion for Summary Judgment.
Docket no. 119. All three motions were referred to Magistrate
Judge Bemporad issued a Memorandum and Recommendation
evaluating the pending Motions for Summary Judgment on
November 9, 2017. Docket no. 135. Judge Bemporad found that
there was a genuine dispute of material fact as to whether
the administrative exemption applies to Defendant's
dispatchers. Id. at 10. Judge Bemporad found that
there was no genuine dispute of material fact as to the
administrative exemption not applying to training periods,
but that there was such a genuine dispute as to what damages,
if any, Plaintiffs are entitled. Id. at 12. Judge
Bemporad found that there is a genuine dispute of material
fact as to whether any misclassification on being exempt was
willful. Id. at 14. Judge Bemporad finally found
that although Espinosa is not a member of the class because
his consent was untimely, he sufficiently states an
individual claim to proceed. Id. at 16.
to Rule 72(b), the parties were given fourteen days to file
written objections to the Report and Recommendation.
Id. at 18. On November 27, 2017, Defendant timely
filed an objection. Docket no. 136. Defendant objects to
Judge Bemporad's recommendations to deny Defendant's
Motion for Summary Judgment, grant Plaintiff and the
Class's Motions for Summary Judgment finding that the
administrative exemption is inapplicable during the training
period, and to grant Plaintiff's Motion for Summary
Judgment that his individual claim should proceed.
Id. at 1. Plaintiff and the Dispatcher Class did not
file an objection.
no party has objected to the Magistrate Judge's Report
and Recommendation, the Court need not conduct a de
novo review of it. See 28 U.S.C. 636(b)(1)
(“A judge of the court shall make a de novo
determination of those portions of the report or specified
proposed findings and recommendations to which objection is
made.”). In such cases, the Court need only review the
Report and Recommendation and determine whether it is either
clearly erroneous or contrary to law. United States v.
Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989). On the
other hand, any Report or Recommendation that is objected to
requires de novo review. Such a review means that
the Court will examine the entire record and will make an
independent assessment of the law. The Court need not,
however, conduct a de novo review when the
objections are frivolous, conclusive, or general in nature.
Battle v. United States Parole Commission, 834 F.2d
419, 421 (5th Cir. 1987). Additionally, “[p]arties
filing objections must specifically identify those findings
objected to.” Nettles v. Wainwright, 677 F.2d
404, 410 n.8 (5th Cir. 1982).
filed its objections to the Magistrate Judge's
recommendations before the expiration of the fourteen-day
deadline. As a result, the Court is required to conduct a
de novo review.
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). To establish that there is no genuine
issue as to any material fact, the movant must either submit
evidence that negates the existence of some material element
of the non-moving party's claim or defense, or, if the
crucial issue is one for which the non-moving party will bear
the burden of proof at trial, merely point out that the
evidence in the record is insufficient to support an
essential element of the non-movant's claim or defense.
Lavespere v. Niagra Machine & Tool Works, Inc.,
910 F.2d 167, 178 (5th Cir. 1990), cert. denied, 510
U.S. 859 (1993). Once the movant carries its initial burden,
the burden shifts to the non-movant to show that summary
judgment is inappropriate. See Fields v. City of S.
Hous., 922 F.2d 1183, 1187 (5th Cir. 1991).
order for a court to conclude that there are no genuine
issues of material fact, the court must be satisfied that no
reasonable trier of fact could have found for the non-movant,
or, in other words, that the evidence favoring the non-movant
is insufficient to enable a reasonable jury to return a
verdict for the non-movant. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250 n.4 (1986). In making
this determination, the court should review all the evidence
in the record, giving credence to the evidence favoring the
non-movant as well as the “evidence supporting the
moving party that is uncontradicted and unimpeached, at least
to the extent that evidence comes from disinterested
witnesses.” Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 151 (2000).