United States District Court, W.D. Texas, San Antonio Division
RODRIGUEZ, UNITED STATES DISTRICT JUDGE
date, the Court considered Plaintiffs' Motion for Partial
Summary Judgment and related filings. By their motion, Plaintiffs
seek a partial summary judgment on liability on their FLSA
claims, and seek to dismiss Defendant's affirmative
defense and counterclaims. The motion will be granted in part
and denied in part.
Rebecca Poole, Monica Ayala, and Robert Gongora filed this
action against their alleged former employer, Dhiru
Hospitality, LLC, d/b/a Motel 6, for violation of the Fair
Labor Standards Act, 29 U.S.C. § 201 et seq.
(“FLSA”). The First Amended Complaint is the live
pleading. Docket no. 5.
Poole alleges that she performed primarily front desk duties
and some duties as assistant manager in 2017 and 2018, was
paid by the week at a rate of $200/week, regularly worked at
least 48 hours per week, and did not receive a paycheck at
all some weeks. Id. ¶¶ 12-15. Plaintiff
Ayala alleges that she performed housekeeping duties from
2016 to 2018 but was never paid, despite regularly and
frequently working at least 42 hours per week. Id.
¶¶ 18-21. Plaintiff Gongora alleges that he
performed housekeeping, maintenance, and security duties for
Defendant from 2016 to 2018 and regularly worked at least 42
hours per week. Id. ¶¶ 23-24. Gongora
alleges he was paid $125/week regardless of hours worked, and
that he did not receive a paycheck at all some weeks.
Id. ¶¶ 26-28. Plaintiffs Gongora and Ayala
are common-law married, and Defendant provided them with a
room at the hotel.
bring claims under the FLSA, with Plaintiffs Poole and
Gongora alleging they never received overtime compensation
for weeks they worked over 40 hours, and Plaintiff Ayala
alleging she never received any payment from Defendant,
either minimum wage or overtime. Id. at 2-3. Thus,
Poole and Gongora assert claims for failure to pay overtime
compensation, and Ayala asserts a claim for failure to pay
minimum wage as well as overtime pay. Defendant has denied
liability and filed a counterclaim.
now move for summary judgment on the issue of liability and
seek to dismiss Defendant's counterclaim and affirmative
defense of fraud. As evidence, Plaintiffs present the
Declaration of Rebecca Poole, the Declaration of Monica
Ayala, the Declaration of Robert Gongora,  and Texas
Unemployment Insurance Wage Report Worksheets and IRS Form
941 for the Motel 6. Defendant contends that fact issues
remain that preclude summary judgment, and submits the
Declarations of Nilesh “Andy” Patel, the
President of Dhiru Hospitality d/b/a Motel 6; Kishan Patel,
his son; and Bhavisha Patel, his wife.
ruling on a motion for summary judgment, the Court must
accept the evidence of the nonmoving party as true and draw
all justifiable inferences in its favor. Credibility
determinations and weighing of the evidence are left to the
trier of fact. Anderson v. Liberty Lobby, 477 U.S.
242, 255 (1986).
FLSA provides that employers must pay employees a statutory
minimum wage. 29 U.S.C. § 206(a). The FLSA further
provides that “no employer shall employ any of his
employees . . . for a workweek longer than forty hours unless
such employee receives compensation for his employment in
excess of the hours above specified at a rate not less than
one and one-half times the regular rate at which he is
employed.” 29 U.S.C. § 207(a)(1).
employee bringing an action for unpaid overtime compensation
must first demonstrate by a preponderance of the evidence:
(1) that there existed an employer-employee relationship
during the unpaid overtime periods claimed; (2) that the
employee engaged in activities within the coverage of the
FLSA; (3) that the employer violated the FLSA's overtime
wage requirements; and (4) the amount of overtime
compensation due. Johnson v. Heckmann Water Res. (CVR),
Inc., 758 F.3d 627, 630 (5th Cir. 2014). Once the
employee establishes a prima facie case, the burden then
shifts to the employer to “come forward with evidence
of the precise amount of work performed or with evidence to
negative the reasonableness of the inference to be drawn from
the employee's evidence.” Id.
allege that Defendant employed persons engaged in commerce
and/or has been an enterprise engaged in commerce within the
meaning of the FLSA. Docket no. 5 ¶ 11. Plaintiffs'
motion asserts that individual coverage is established for
Plaintiff Poole and enterprise coverage is established for
29 U.S.C. § 207(a), Plaintiffs must prove they were
employees engaged in commerce or in the production of goods
for commerce (“individual coverage”) or
“employed in an enterprise engaged in commerce or in
the production of goods for commerce”
(“enterprise coverage”). Martin v.
Bedell, 955 F.2d 1029, 1032 (5th Cir. 1992) (citing 29
U.S.C. § 207(a)(1)). Either individual or enterprise
coverage is enough to invoke FLSA protection.
Martin, 955 F.2d at 1032.
Plaintiffs - FLSA enterprise coverage
FLSA defines an “enterprise engaged in commerce or in
the production of goods for commerce” to include an
(A)(i) has employees engaged in commerce or in the production
of goods for commerce, or that has employees handling,
selling, or otherwise working on goods or materials that have
been moved in or produced for commerce by any person; and
(ii) is an enterprise whose annual gross volume of sales made
or business done is not less than $500, 000 ....
29 U.S.C. § 203(s)(1). If an employer meets both
requirements, then all its employees are subject to the FLSA,
unless otherwise exempted by another provision of the act.
attempt to establish enterprise coverage through their
Declarations and Defendant's Texas Unemployment Insurance
Wage Report Worksheets. Plaintiffs rely on the TWC worksheets
to establish that the Motel 6 employed eleven individuals,
including Poole, in 2017. They offer the following evidence from
There are 55 rooms in the hotel. Kishan, Andy's son,
mentioned a few times they bring in $21, 000 per day in
revenue. They would bring in more than that during Fiesta,
Spring Break, Rodeo, etc. Andy mentioned once that the yearly
tax on the property was $95, 000. He would sometimes rent
rooms by the hour, for like $40.
The minimum charge per room was $55 per room. On the weekend,
Andy would charge $65-$80 per room. On the weekends, the
rooms were 100% booked. During Spring Break, Fiesta, Rodeo,
they would be usually 100% booked.
Seema, Andy's wife, and Andy went on a cruise in August.
I was in charge while they were gone. Seema told me then that
if I dealt with the police, I should tell them I am the
assistant manager. While they were gone, we took in some $55,
000 in cash during the nine days I was in charge. I had over
$50, 000 in cash in my room until Andy and Seema got
contests Poole's assertion that she took in over $50, 000
in cash during the nine days the Patels were on vacation,
noting that if 70% of transactions were by credit card, as
Plaintiffs have asserted, it is not possible that she would
take in over $50, 000 in cash during that period. Docket no.
41 at 2; Docket no. 42 at 2. Defendant asserts that Poole
never mentioned this cash before and would have been
violating policy by keeping it in her room rather than
depositing it daily in a secure office box.
Patel, Andy Patel's son, states that Poole was required
to place receipts in the drop box, and he would have known if
she brought in that much money because he “was keeping
track of all deposits while [his] parents were away.”
He states that Poole would have violated policy if she kept
the cash in her room. Nilesh Patel similarly states that
Poole's testimony is not credible, given her statement
that 70% of customers paid with credit cards, and ...