United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND OPINION DENYING MOTION TO STRIKE AND
DENYING MOTION FOR SUMMARY JUDGMENT
Rosenthal Chief United States District Judge
“off-the-clock” Fair Labor Standards Act case, a
non-exempt executive assistant to an executive vice president
alleges that during the two years she worked, she did not
record, or receive overtime compensation for, the hours she
spent working outside the office, after the work day and on
weekends. (Docket Entry No. 1). After discovery, her employer
moved for summary judgment on the grounds that there was no
evidence that it “suffered or permitted” the
employee to work off the clock; that the employee failed to
present sufficient competent evidence to support her claim
that she worked approximately 12 hours per workweek off the
clock in 2014 and 2015 and 8 hours in 2016; and that the
employee failed to present sufficient competent evidence to
support a finding that if the employer violated the Fair
Labor Standards Act, it did so willfully. (Docket Entry No.
14). The employee responded to the summary judgment motion,
and the employer replied. (Docket Entry Nos. 15, 16). The
employer also moved to strike portions of the employee's
declaration, and the employee responded. (Docket Entry Nos.
on a careful consideration of the pleadings; the motions,
responses, and replies; the summary judgment record; and the
applicable law, the court denies the motion to strike and
denies the motion for summary judgment. The reasons are set
The Pending Motions
Little worked at Global H20 Investments and Senterra LLC as
an Executive Assistant and Business Operations Associate
between May 12, 2014 and August 9, 2016. (Docket Entry No. 14
at 8-10). She was a non-exempt employee, paid on an hourly
basis and entitled to overtime pay for hours she worked
beyond 40 in a workweek. Id. at 8. Her immediate
supervisor was Executive Vice-President David Bruce.
recorded, and was paid for, the hours she worked at the
Senterra offices, during regular office hours. She alleges
and presents summary judgment evidence that from the outset,
Bruce required her to access her work emails on her personal
cell phone. (Docket Entry No. 15 at 10; Docket Entry No. 15,
Ex. 2. at 22-23). She alleges that his job demands required
her to spend many hours working outside the Senterra offices,
after the work day and on weekends, and that she did so on a
regular basis. (Docket Entry No. 15 at 10-11; Docket Entry
No. 15, Ex. 1, ¶ 9). Little did not record this time
because she did not understand that work away from the office
was compensable. (Docket Entry No. 15, Ex. 1, ¶ 6). She
did not review the section of the Senterra handbook on
recording time spent working after the work day, away from
the office, and no one from Senterra told her that she was
entitled to be paid for this time. Id. According to
Little, she first learned that this was compensable time
after working for approximately 18 months, when she talked to
her mother about her work load. Id. at ¶ 10.
Her mother was a human resources professional. Id.
claims that after this conversation, she complained to the
Senterra Human Resources Department on three separate
occasions that she was working at home, on a regular basis,
without getting paid for that time. Id. at ¶
11. Little claims, and presents summary judgment evidence
that, after the first conversation with the Vice President of
Human Resources, she was told that she could not be paid on a
salaried basis; after the second conversation, when she again
reported that she was working late at home after hours and
not “charging” Bruce for those hours, she
received no instruction to record the hours; and that after
the third conversation, with a Human Resources Manager, the
response was “I don't hear this! I don't hear
this! Don't tell me this!” Id. at ¶
11-13. Little claims, and presents summary judgment evidence
that, besides the complaints she made to Human Resources,
Bruce was also aware that she was working long hours on a
regular basis from home after hours and on weekends. (Docket
Entry No. 15 at 12-13; Docket Entry No. 15, Ex. 1 at ¶
15). She claims that from the outset, well before she
complained to Human Resources, Bruce received the emails and
other work she did and sent from her home or car, that he was
an active participant in the communications transmitting the
work and relating to the work, and that he continued to
assign tasks that required hours of extra time to complete.
(Docket Entry No. 15, Ex. 1 at ¶ 15; Docket Entry No.
15, Ex. 2 at 44-50; Docket Entry No. 15, Ex. 3 at 28, 30).
Bruce also reviewed Little's time sheets, which did not
reflect the time he knew she was spending on his work outside
the office. (Docket Entry No. 15, Ex. 3 at 21-22).
moves for summary judgment on the basis that the competent
summary judgment evidence does not support Little's claim
that Senterra “suffered or permitted” Little to
work off the clock. Senterra points to its employee handbook
written policy that prohibited non-exempt employees like
Little from working without recording the time, and
prohibited incorrectly reporting hours worked. (Docket Entry
No. 14, Ex. 4 at 9). Senterra asserts that because Little did
not record her hours, and she did not tell Bruce or the
Payroll Manager who, with Bruce, reviewed her time sheets,
that she was working extensively and routinely at home after
hours and on weekends, that no one at Senterra knew the
amount of time she was working off the clock. (Docket Entry
No. 14 at 12-13). When Little did record overtime hours,
according to Senterra, she was paid for that time at overtime
rates. (Docket Entry No 14 at 24).
asserts that, contrary to Little's position, the emails
and other work she sent Bruce from her home or car, after
hours and on weekends, did not make him aware that she was
regularly working many hours off the clock. (Docket Entry No.
14 at 13-16). Senterra asserts that Bruce was busy managing
the operations of Senterra entities, and that he relied on
Little to submit accurate timesheets and had no reason to
believe that she was underreporting her hours. Id.
at 14-16. Senterra asserts that the evidence of the emails
Little sent to Bruce showed that the amount of work was
insufficient to make him aware that she was working long
hours each week from home. Senterra relies on the “de
minimis” nature of the work to also argue that
Little's uncompensated overtime falls within the
“de minimis” exception to the Fair Labor
Standards Act. Id. at 20-22.
disputes Little's account of her three meetings with
Human Resources personnel. Senterra agrees that in these
meetings, Little complained about the work demands Bruce
imposed, and problems presented by some medical issues and
her long commute. Id. at 16-18. According to
Senterra, when Little complained that she was working from
home and that she had to use her personal cell phone to get
work emails, Human Resources reminded her of Senterra's
policy requiring employees to accurately record all the hours
they worked. Id. at 17.
also asserts that Little has not presented competent summary
judgment evidence sufficient to show the amount of overtime
compensation she was entitled to receive, but did not.
Id. at 18-19. Senterra points to her admitted
failure to take contemporaneous notes and her need to
estimate the number of hours she worked. Id.
Senterra asserts that the law requires more specificity and
certainty than she can provide to withstand summary judgment.
Id. at 19.
Senterra claims that even if the claims withstand summary
judgment, Little cannot make a sufficient showing of
willfulness. Id. at 22-24.
motion for summary judgment in part depends on its motion
objecting to, and moving to strike, portions of Little's
declaration. (Docket Entry No. 17). Senterra objects to parts
of Little's declaration that it asserts are either
inconsistent with her deposition or too conclusory and
speculative to be competent summary judgment evidence. Little
disputes both arguments, asserting that there is no conflict
between the deposition and the later declaration, and that
Little's declaration rests on her personal knowledge and
is therefore competent summary judgment evidence. (Docket
Entry No. 18).