United States District Court, E.D. Texas
DARIN BORNE, Individually and on Behalf of All Others Similarly Situated, Plaintiffs,
AAY SECURITY LLC, Defendant.
MEMORANDUM AND ORDER
A. CRONE, UNITED STATES DISTRICT JUDGE
before the court is Defendant AAY Security LLC's
(“AAY”) Motion for Summary Judgement
[sic] (#64), wherein AAY requests that the court
grant summary judgment as to all of the claims brought by
Plaintiff Darin Borne (“Borne”), individually and
on behalf of all others similarly situated, under the Fair
Labor Standards Act (“FLSA”), 29 U.S.C.
§§ 201-219. Having considered the motion, the
submissions of the parties, the pleadings, and the applicable
law, the court is of the opinion that the motion should be
granted in part and denied in part.
a company that provides trained professional security
officers to maritime, petrochemical, and refinery facilities
in the United States. Borne alleges that AAY required
employees (the “Training Class”) to attend
pre-shift training meetings and to take periodic drug tests
between August 7, 2016, and February 5, 2017. Borne also
contends that, between August 28, 2017, and September 1,
2017, after Hurricane Harvey, AAY required employees (the
“Hurricane Class”) to remain on-site, even when
they were off duty, while AAY provided around-the-clock
security at Cheniere Energy, Inc.'s Sabine Pass Liquid
Natural Gas facility in Cameron, Louisiana (the
“Cheniere Site”). Borne maintains that members of
the Training Class and the Hurricane Class (collectively,
“Plaintiffs”) were entitled to overtime pay for
time in excess of 40 hours per week when they were
purportedly working for AAY. In his Third Amended Complaint,
Borne defines these two classes as follows:
(1) All of [AAY]'s current and former security officers
found to be owed overtime liquidated damages by the Wage and
Hour Division of the United States Department of Labor
[(“DOL”)] in its investigation identified as Case
ID No. 1813611.
(2) All of [AAY]'s current and former security officers
who worked more than forty (40) hours during the week of
Monday, August 28, 2017[, ] and who were not paid one and
one-half times their regular rate of pay for their overtime
hours worked in that week.
also asserts that AAY terminated his employment in
retaliation for complaining about not receiving overtime pay.
AAY maintains that Borne was terminated for abandoning his
post. During the pendency of this case, the court granted
Borne's request for conditional certification and later
denied AAY's request to decertify the Training Class and
the Hurricane Class. There are currently twelve plaintiffs
who have opted into the Training Class and eight plaintiffs
who have opted into the Hurricane Class.
motion pending before the court, AAY argues that summary
judgment should be granted because: (1) AAY's affirmative
defense of good faith precludes the Training Class from
recovering liquidated damages; (2) the Hurricane Class cannot
establish their damages or, alternatively, the Hurricane
Class employees were waiting to be engaged during their time
off duty; and (3) Borne's termination for abandoning his
post was not retaliatory.
Summary Judgment Standard
56(a) of the Federal Rules of Civil Procedure provides that
summary judgment shall be granted “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); see Hefren v. McDermott, Inc.,
820 F.3d 767, 771 (5th Cir. 2016). The party seeking summary
judgment bears the initial burden of informing the court of
the basis for its motion and identifying those portions of
the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
which it believes demonstrate the absence of a genuine issue
of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986); Mabry v. Lee Cty., 849 F.3d 232,
234 (5th Cir. 2017); Davis v. Fort Bend Cty., 765
F.3d 480, 484 (5th Cir. 2014), cert. denied, 135
S.Ct. 2804 (2015); Tech. Automation Servs. Corp. v.
Liberty Surplus Ins. Corp., 673 F.3d 399, 407 (5th Cir.
2012). To warrant judgment in its favor, the movant
“must establish beyond peradventure all of the
essential elements of the claim or defense.” Dewan
v. M-I, L.L.C., 858 F.3d 331, 334 (5th Cir. 2017)
(quoting Fontenot v. Upjohn Co., 780 F.2d 1190, 1194
(5th Cir. 1986)); accord Access Mediquip L.L.C. v.
UnitedHealthcare Ins. Co., 662 F.3d 376, 378 (5th Cir.
2011), cert. denied, 568 U.S. 1194 (2013).
fact issue is material if its resolution could affect the
outcome of the action.” Hemphill v. State Farm Mut.
Auto. Ins. Co., 805 F.3d 535, 538 (5th Cir. 2015),
cert. denied, 136 S.Ct. 1715 (2016); Tiblier v.
Dlabal, 743 F.3d 1004, 1007 (5th Cir. 2014); accord
Poole v. City of Shreveport, 691 F.3d 624, 627
(5th Cir. 2012); Cooper Tire & Rubber Co. v.
Farese, 423 F.3d 446, 454 (5th Cir. 2005).
“Factual disputes that are irrelevant or unnecessary
will not be counted.” Tiblier, 743 F.3d at
1007 (quoting Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986)). “An issue is
‘genuine' if it is real and substantial,
as opposed to merely formal, pretended, or a sham.”
Hudspeth v. City of Shreveport, 270 Fed.Appx. 332,
334 (5th Cir. 2008) (quoting Bazan ex rel. Bazan v.
Hidalgo Cty., 246 F.3d 481, 489 (5th Cir. 2001)). A
genuine issue of material fact exists “if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party.” Hefren, 820 F.3d at 771
(quoting Anderson, 477 U.S. at 248);
Tiblier, 743 F.3d at 1007; accord Haverda v.
Hays Cty., 723 F.3d 586, 591 (5th Cir. 2013). The moving
party, however, “need[s] not negate the elements of the
nonmovant's case.” Pioneer Expl., L.L.C. v.
Steadfast Ins. Co., 767 F.3d 503, 511 (5th Cir. 2014);
Bayle v. Allstate Ins. Co., 615 F.3d 350, 355 (5th
Cir. 2010); Boudreaux v. Swift Transp. Co., 402 F.3d
536, 540 (5th Cir. 2005) (citing Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).
proper motion has been made, the nonmoving party may not rest
upon mere allegations or denials in the pleadings but must
present affirmative evidence, setting forth specific facts,
to demonstrate the existence of a genuine issue for trial.
Celotex Corp., 477 U.S. at 322 n.3; see Beard v.
Banks, 548 U.S. 521, 529 (2006) (quoting Fed.R.Civ.P.
56(e)); Distribuidora Mari Jose, S.A. de C.V. v.
Transmaritime, Inc., 738 F.3d 703, 706 (5th Cir. 2013).
The court “should review the record as a whole.”
Black v. Pan Am. Labs., LLC, 646 F.3d 254, 273 (5th
Cir. 2011) (quoting Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 150 (2000)); see City of
Alexandria v. Brown, 740 F.3d 339, 350 (5th Cir. 2014).
The evidence is construed “in favor of the nonmoving
party, but only where there is an actual controversy, that
is, when both parties have submitted evidence of
contradictory facts.” Spring St. Partners-IV, L.P.
v. Lam, 730 F.3d 427, 435 (5th Cir. 2013) (quoting
Boudreaux, 402 F.3d at 540).
“only reasonable inferences in favor of the nonmoving
party can be drawn from the evidence.” Mills v.
Warner-Lambert Co., 581 F.Supp.2d 772, 779 (E.D. Tex.
2008) (citing Eastman Kodak Co. v. Image Tech. Servs.,
Inc., 504 U.S. 451, 469 n.14 (1992), cert.
denied, 523 U.S. 1094 (1998)); accord Cannata v.
Catholic Diocese of Austin, 700 F.3d 169, 172 (5th Cir.
2012). “If the [nonmoving party's] theory is . . .
senseless, no reasonable jury could find in its favor, and
summary judgment should be granted.” Stearns
Airport Equip. Co., Inc. v. FMC Corp., 170 F.3d 518, 528
(5th Cir. 1999) (quoting Eastman Kodak Co., 504
U.S. at 468-69); accord Shelter Mut. Ins. Co. v.
Simmons, 543 F.Supp.2d 582, 584-85 (S.D.Miss.),
aff'd, 293 Fed.Appx. 273 (5th Cir. 2008).
“Summary judgment may not be thwarted by conclusional
allegations, unsupported assertions, or presentation of only
a scintilla of evidence.” Hemphill, 805 F.3d
at 538 (citing McFaul v. Valenzuela, 684 F.3d 564,
571 (5th Cir. 2012)); see Lujan v. Nat'l Wildlife
Fed'n, 497 U.S. 871, 888 (1990); accord Stauffer
v. Gearhart, 741 F.3d 574, 581 (5th Cir. 2014).
judgment is mandated if the nonmovant fails to make a showing
sufficient to establish the existence of an element essential
to his case on which he bears the burden of proof at trial.
Nebraska v. Wyoming, 507 U.S. 584, 590 (1993);
Celotex Corp., 477 U.S. at 322; Tiblier,
743 F.3d at 1007; Curtis v. Anthony, 710 F.3d 587,
594 (5th Cir. 2013). “Where the nonmoving party fails
to establish the existence of an element essential to that
party's case, and on which that party will bear the
burden of proof at trial, no genuine issue of material fact
can exist.” Apache Corp. v. W&T Offshore,
Inc., 626 F.3d 789, 793 (5th Cir. 2010). In such a
situation, “‘[a] complete failure of proof
concerning an essential element of the nonmoving party's
case necessarily renders all other facts immaterial' and
‘mandates the entry of summary judgment' for the
moving party.” United States ex rel. Farmer v. City
of Houston, 523 F.3d 333, 337 (5th Cir.) (quoting
Celotex Corp., 477 U.S. at 322-23), cert.
denied, 555 U.S. 1012 (2008).
Fair Labor Standards Act (“FLSA”)
FLSA, enacted in 1938, was designed to ensure that employees
would receive “a fair day's pay for a fair
day's work” and protect them from being overworked
and underpaid. Barrentine v. Ark.-Best Freight Sys.,
Inc. (“Barrentine I”), 450 U.S.
728, 739 (1981) (quoting Overnight Motor Transp. Co. v.
Missel, 316 U.S. 572, 578 (1942) (quoting 81 Cong. Rec.
4983 (1937) (message of President Roosevelt))); see
Bridges v. Empire Scaffold, L.L.C., 875 F.3d 222, 225
(5th Cir. 2017), cert. denied, 138 S.Ct. 1552
(2018); Meza v. Intelligent Mexican Mktg., Inc., 720
F.3d 577, 581 (5th Cir. 2013). Accordingly, the FLSA
establishes “a minimum wage, regulations governing
maximum hours, record-keeping and reporting requirements,
provisions regulating child labor, and civil and criminal
penalties for violation of any of its terms.” Lee
v. Veolia ES Indus. Servs., Inc., No. 1:12-CV-136, 2013
WL 2298216, at *10 (E.D. Tex. May 23, 2013).
the FLSA, any employer who violates the FLSA minimum wage
statute, 29 U.S.C. § 206, or the FLSA maximum hours
statute, 29 U.S.C. § 207, is ‘liable to the
employee or employees affected in the amount of their unpaid
minimum wages, or their unpaid overtime compensation, as the
case may be, and in an additional equal amount as liquidated
damages.'” Martin v. Spring Break '83
Prods., L.L.C., 688 F.3d 247, 251 n.3 (5th Cir.)
(quoting 29 U.S.C. § 216(b)), cert. denied, 568
U.S. 1069 (2012); Gray v. Powers, 673 F.3d 352, 354
(5th Cir. 2012); see Bridges, 875 F.3d at 225.
FLSA requires any employee working over 40 hours in a week to
be paid overtime, premium compensation at the rate of one and
one-half times their ‘regular rate' of pay.”
York v. City of Wichita Falls, 48 F.3d 919, 921 (5th
Cir. 1995) (citing 29 U.S.C. § 207(a)(1)); see
Bridges, 875 F.3d at 225; Ransom v. M. Patel
Enters., Inc., 734 F.3d 377, 382 n.7 (5th Cir. 2013).
The “regular rate” must include “all
remuneration for employment paid to, or on behalf of, the
employee, ” with certain exceptions. 29 U.S.C. §
207(e). “An employer who is armed with [knowledge that
an employee is working overtime] cannot stand idly by and
allow an employee to perform overtime work without proper
compensation, even if the employee does not make a claim for
the overtime compensation.” Harvill v. Westward
Commc'ns, L.L.C., 433 F.3d 428, 441 (5th Cir. 2005)
(quoting Newton v. City of Henderson, 47 F.3d 746,
748 (5th Cir. 1995)).
Good Faith Defense
asserts that it is not liable for liquidated damages because
it acted in good faith. The FLSA provides:
[I]f the employer shows to the satisfaction of the court that
the act or omission giving rise to [the FLSA action] was in
good faith and that he had reasonable grounds for believing
that his act or omission was not a violation of the [FLSA],
the court may, in its sound discretion, award no liquidated
damages or award any ...