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Borne v. Aay Security LLC

United States District Court, E.D. Texas

October 21, 2019

DARIN BORNE, Individually and on Behalf of All Others Similarly Situated, Plaintiffs,



         Pending 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.

         I. Background

         AAY is 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.

         Borne 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.[1]

         In the 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.

         II. Analysis

         A. Summary Judgment Standard

         Rule 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).

         “A 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)).

         Once a 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).

         Nevertheless, “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).

         Summary 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).

         B. Fair Labor Standards Act (“FLSA”)

         The 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).

         “Under 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.

         “The 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)).

         1. Good Faith Defense

         AAY 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 ...

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