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Maier v. Private Mini Storage Manager, Inc.

United States District Court, S.D. Texas, Houston Division

August 8, 2019

LORETTA MAIER, et al., Plaintiffs,



         This 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.

         I. BACKGROUND

         PMSM 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.

         Plaintiff 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.

         In 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.

         PMSM 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 id.

         Each Plaintiff took at least one full day off each week, and each took vacation time.

         Maier stopped working for PMSM in July 2017, leaving Birdsell as the only Property Manager at the facility.

         In May 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. See id.

         Maier 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.


         Rule 56 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.

         For 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. 1996)).

         If the 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).

         In 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)).

         The 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 ...

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