United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER
F. ATLAS SENIOR UNITED STATES DISTRICT JUDGE.
Fair Labor Standards Act (“FLSA”) case is before
the Court on the Motion for Summary Judgment
(“Motion”) [Doc. # 34] filed by Defendant Private
Mini Storage Manager, Inc. (“PMSM”), to which
Plaintiffs Loretta Maier and Scott Birdsell filed a Response
[Doc. # 35], and Defendant filed a Reply [Doc. # 36]. Having
reviewed the full record and the applicable legal
authorities, the Court denies the Motion as
to Maier's FLSA overtime compensation claim, and
grants the Motion in all other respects.
offers self-storage facilities and RV Parks in the Houston
area. PMSM operated several self-storage facilities during
the period of time Plaintiffs were employed. Currently,
however, PMSM operates only one storage facility in Houston.
See Declaration of Douglas Mulvaney, Exh. A to
Motion, ¶ 3.
Maier worked for PMSM as a Property Manager from 2008 through
2013, then again from April 2015 until July 2017. Her
husband, Plaintiff Birdsell, also worked for PMSM as a
Property Manager from 2008 through 2013, as a district
manager of RV parks from 2014 until April 2015, and again as
a Property Manager at the same facility as Maier from April
2015 until June 6, 2018. Property Managers perform a variety
of tasks to manage the storage facility, including renting
the storage units, renting U-Haul trucks, and maintaining the
property and equipment at the facility.
connection with their employment as Property Managers in
April 2015, Plaintiffs each executed an Employment Agreement.
See Maier Employment Agreement, Exh. D to Motion;
Birdsell Employment Agreement, Exh. I to Motion. In the
Employment Agreement, each Plaintiff stated that “PMSM
and Employee have evaluated all of the pertinent facts
surrounding Employee's work circumstances” and that
they “decided that 45 hours per week is a reasonable
estimate of hours Employee will work each week. . ..”
See id., ¶ 3. Each Plaintiff also agreed that
if circumstances changed such that 45 hours no longer
represented a fair estimate of the number of hours worked
each week, “Employee agrees to immediately notify PMSM
in writing of such changed conditions so that a new
employment agreement, reflecting fair and reasonable
estimates of the number of hours Employee works per week may
be negotiated.” Id. It is undisputed that each
Plaintiff was paid a weekly wage that included overtime pay
for the 5 overtime hours per week. Maier also received a
$425.00 monthly bonus for helping to clean at a facility
located on FM 1464.
provided each Plaintiff with a weekly payroll certification
form (“Payroll Form”). An early version of the
Payroll Form, used from April 2015 until mid-April 2016,
stated: “Under the terms of our Employment Agreement,
the undersigned will report any unusual change in the hours
worked for the week ending” followed by a blank for the
applicable date. See, e.g., Employment Form, Exh. F
to Motion, ECF pp. 2-50. There was also a representation that
“the hours worked for this period did not exceed the
hours agreed to under the terms of my employment.”
Id. Beginning with the week ending April 16, 2016,
the Payroll Form changed. The representation regarding hours
worked not exceeding the hours agreed to under the Employment
Agreement was changed to read: “Please be advised that
the hours worked for this period (did not/did) exceed the
hours agreed to under the terms of my Employment
Agreement.” See Payroll Form, ECF pp. 51-110.
The employee was to circle either “did not” or
“did” as applicable. If the employee chose
“did, ” there was a section on the Payroll Form
for the employee to explain the excess hours. See
Plaintiff took at least one full day off each week, and each
took vacation time.
stopped working for PMSM in July 2017, leaving Birdsell as
the only Property Manager at the facility.
2018, PMSM began negotiating with a third party regarding the
sale of some of PMSM's storage and RV Park facilities.
See Mulvaney Decl., ¶ 7. When the prospective
purchaser reported some irregularities, PMSM hired a third
party to audit PMSM's books and records. See Id.
The auditors reported more than $7, 000.00 in rental write
offs for a single customer at the PMSM facility where
Birdsell was the Property Manager. See Id. When
Birdsell failed to explain the write-offs to PMSM's
satisfaction, his employment was terminated on June 6, 2018.
filed this lawsuit on March 29, 2018. In the Complaint [Doc.
# 1], she asserted FLSA claims for failure to pay overtime
wages and for failure to pay minimum wage. On July 3, 2018,
Maier and Birdsell filed an amended Complaint [Doc. # 14],
again asserting FLSA claims for failure to pay overtime wages
and failure to pay minimum wage. In the new Complaint,
Birdsell asserted an FLSA claim for retaliation. On November
30, 2018, Plaintiffs filed their Second Amended Complaint
[Doc. # 25], again asserting the same FLSA claims. Following
the close of discovery, Defendant filed its Motion for
Summary Judgment, which has been fully briefed. In their
Response, Plaintiffs admitted that Defendant paid them
minimum wage. See Response, p. 4 n.1. As a result,
Defendant is entitled to summary judgment on the minimum wage
claim. The Motion is now ripe for decision.
SUMMARY JUDGMENT STANDARD
of the Federal Rules of Civil Procedure provides for the
entry of summary judgment against a plaintiff who fails to
make a sufficient showing of the existence of an element
essential to his case and on which he will bear the burden at
trial. See Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986); Curtis v. Anthony, 710 F.3d 587, 594
(5th Cir. 2013); Little v. Liquid Air Corp., 37 F.3d
1069, 1075 (5th Cir. 1994) (en banc). Summary
judgment “should be rendered if the pleadings, the
discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as
a matter of law.” Fed.R.Civ.P. 56(a); Celotex,
477 U.S. at 322-23; Curtis, 710 F.3d at 594.
summary judgment, the initial burden falls on the movant to
identify areas essential to the non-movant's claim in
which there is an “absence of a genuine issue of
material fact.” ACE Am. Ins. Co. v. Freeport
Welding & Fabricating, Inc., 699 F.3d 832, 839 (5th
Cir. 2012). The moving party, however, “need not negate
the elements of the nonmovant's case.” Coastal
Agric. Supply, Inc. v. JP Morgan Chase Bank, N.A., 759
F.3d 498, 505 (5th Cir. 2014) (quoting Boudreaux v. Swift
Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005)). The
moving party may meet its burden by pointing out “the
absence of evidence supporting the nonmoving party's
case.” Malacara v. Garber, 353 F.3d 393, 404
(5th Cir. 2003) (citing Celotex, 477 U.S. at 323;
Stults v. Conoco, Inc., 76 F.3d 651, 656 (5th Cir.
moving party meets its initial burden, the non-movant must go
beyond the pleadings and designate specific facts showing
that there is a genuine issue of material fact for trial.
See Gen. Universal Sys., Inc. v. Lee, 379 F.3d 131,
141 (5th Cir. 2004); Littlefield v. Forney Indep. Sch.
Dist., 268 F.3d 275, 282 (5th Cir. 2001) (internal
citation omitted). “An issue is material if its
resolution could affect the outcome of the action.”
Spring Street Partners-IV, L.P. v. Lam, 730 F.3d
427, 435 (5th Cir. 2013). “A dispute as to a material
fact is genuine if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.”
DIRECT TV Inc. v. Robson, 420 F.3d 532, 536 (5th
Cir. 2006) (internal citations omitted).
deciding whether a genuine and material fact issue has been
created, the court reviews the facts and inferences to be
drawn from them in the light most favorable to the nonmoving
party. Reaves Brokerage Co. v. Sunbelt Fruit &
Vegetable Co., 336 F.3d 410, 412 (5th Cir. 2003). A
genuine issue of material fact exists when the evidence is
such that a reasonable jury could return a verdict for the
non-movant. Tamez v. Manthey, 589 F.3d 764, 769 (5th
Cir. 2009) (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)).
“‘Conclusional allegations and denials,
speculation, improbable inferences, unsubstantiated
assertions, and legalistic argumentation do not adequately
substitute for specific facts showing a genuine issue for
trial.'” Pioneer Exploration, L.L.C. v.
Steadfast Ins. Co., 767 F.3d 503, 511 (5th Cir. 2014)
(quoting Oliver v. Scott, 276 F.3d 736, 744 (5th
Cir. 2002); accord Delta & Pine Land Co. v.
Nationwide Agribusiness Ins. Co., 530 F.3d 395, 399 (5th
Cir. 2008). Instead, the nonmoving party must present
specific facts which show “the existence of a genuine
issue concerning every essential component of its
case.” Firman v. Life Ins. Co. of N. Am., 684
F.3d 533, 538 (5th Cir. 2012) (citation and internal
quotation marks omitted). In the absence of any proof, the
court will not assume that the non-movant could or would
prove the necessary facts. Little, 37 F.3d at 1075
(citing Lujan v. Nat'l Wildlife Fed'n, 497
U.S. 871, 888 (1990)).
Court may make no credibility determinations or weigh any
evidence. See Chaney v. Dreyfus Serv. Corp., 595
F.3d 219, 229 (5th Cir. 2010) (citing Reaves Brokerage
Co., 336 F.3d at 412-13). The Court is not required to
accept the nonmovant's conclusory allegations,
speculation, and unsubstantiated assertions which are either
entirely unsupported, or supported by a mere scintilla of
evidence. Id. (citing Reaves Brokerage, 336
F.3d at 413); accord, Little, 37 F.3d at 1075.
Affidavits cannot preclude summary judgment unless they