Alvarado v. Shipley Donut Flour & Supply Co., Inc.

• Decision Date: 30 November 2007
• Docket Number: Civil Action No. H-06-2113.
• Citation: 526 F.Supp.2d 746
• Parties: Filiberto Robles ALVARADO, et al., Plaintiffs, v. SHIPLEY DONUT FLOUR & SUPPLY CO., INC., d/b/a Shipley Do-Nuts, Defendant.
• Court: U.S. District Court — Southern District of Texas

526 F.Supp.2d 746

Filiberto Robles ALVARADO, et al., Plaintiffs, v. SHIPLEY DONUT FLOUR & SUPPLY CO., INC., d/b/a Shipley Do-Nuts, Defendant.

Civil Action No. H-06-2113.

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

November 30, 2007.

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Katrina S. Patrick, Attorney at Law, Rhonda Hunter Wills, Wills Law Firm, Scott David Newar, Attorney at Law, Houston, TX, for Plaintiffs.

Teresa S. Valderrama, Virginia Mixon Swindell, Baker Botts, LLP, Houston, TX, Robert L. Ivey, Ogletree, Deakins, et al., Houston, TX, for Defendant.

MEMORANDUM AND ORDER

NANCY F. ATLAS, District Judge.

Plaintiffs in this case, who all are Mexican immigrants, complain that Defendant subjected them to discrimination, physical assault, and financial exploitation, and that their complaints about Defendant's conduct were met with retaliation. Plaintiffs bring discrimination, retaliation, Fair Labor Standards Act, and assault and battery claims. Defendant has filed a Motion for Partial Summary Judgment [Doc. # 78] ("MPSJ"). Plaintiffs have responded [Doe. # 87], Defendant replied [Doc. # 91], and Plaintiffs surreplied [Doc. # 98]. Having considered the parties' submissions, all matters of record, and applicable legal authorities, the Court concludes that the Motion should be granted in part and denied in part.

I. FACTUAL BACKGROUND

Defendant Shipley Do-Nuts ("Defendant"), based in Houston, is a family-owned company that was started in 1936 by Lawrence Shipley, Sr. ("Shipley, Sr."). Defendant now sells donuts and other goods in retail stores and franchises in five states, and has numerous retail outlets in Houston. In the late 1970s, management authority was passed from Shipley, Sr., to Lawrence W. "Bud" Shipley, Jr. ("Shipley, Jr."). When Shipley, Jr., died in March 2005, authority passed to Lawrence W. Shipley, III ("Shipley, III").

Plaintiffs, all immigrants from Mexico, were employed at Defendant's kitchen and warehouse, which prepares ingredients to be distributed to Defendant's individual stores. Defendant's property, located at 5200 N. Main Street in Houston, includes the warehouse, two kitchens, storerooms, and offices. The Main Street property is adjacent to Defendant's "company houses"—several houses and mobile homes owned by Defendant in which some employees live rent-free. Besides free housing, Defendant provided other benefits to some employees, such as paid medical care, paid automobile repairs, or emergency loans for which repayment was not sought.

For many years, until March 2005, Plaintiffs and the other warehouse workers were supervised by Jimmy Rivera, who is Mexican-American. Administrative duties in the warehouse, and some supervisory duties, were performed by Julian Garcia (Mexican-American), Christopher Halsey (Caucasian), and Bill Shipley¹ (Caucasian). In March 2005, Rivera was removed from the warehouse in response to Plaintiffs' initial complaints, and Garcia became warehouse manager, with Halsey assisting him.

Neither Shipley Jr. nor Shipley, HI, speak Spanish. Most of Defendant's warehouse workers do not speak English. Because Rivera and Garcia are bilingual, the Shipley family relied upon them to provide information about what happened in the warehouse. Plaintiffs claim that they had no access to the Shipley family, and no means of registering complaints about warehouse conduct, except through Rivera.

Plaintiffs allege that, throughout their employment with Defendant, they were subjected to verbal and physical harassment based on their race and national origin. In particular, Plaintiffs claim that they were subjected daily to derogatory slurs from Rivera, Garcia, Halsey, and Bill Shipley. The slurs included "fucking wetback," "fucking Mexican," pendejo, vagueton, mojado, Chiapaneco, cabron, vato, stupid, jackass, lazy, and taco-eater. Plaintiffs further allege that they were subjected to frequent, offensive touching of their buttocks and other private parts. This physical harassment was inflicted mostly by Rivera, but also, to a lesser extent, by Garcia and Halsey. Plaintiffs also claim that Rivera kept sex toys in his office, forced Plaintiffs to retrieve or clean the sex toys, made offensive sexual comments to them, and demanded they give him massages.

Second, Plaintiffs allege extensive financial exploitation by Rivera and, to a lesser extent, Garcia. In particular, Plaintiffs allege that Rivera exploited his broad authority over the warehouse by demanding payments for employment "favors" such as hiring, pay raises, overtime pay, and sick leave. Sometimes the demanded payments were in the form of "raffle tickets" that Plaintiffs were forced to buy. They also allege that Rivera sometimes pocketed their paychecks.

Third, Plaintiffs allege an assault and battery claim, contending that Rivera and others hit them and pushed them on multiple occasions. They further claim that some of the offensive sexual touching was extremely painful—in particular, the supervisors frequently grabbed and squeezed their penises, nipples, and buttocks.

Finally, Plaintiffs allege that, when they Complained to Defendant, and later to the Equal Employment Opportunity Commission ("EEOC"), Defendant retaliated against them by actions such as reprimanding them without proper basis, following them on delivery routes and outside of work, threatening them with deportation, and reassigning them to less desirable work duties.

On June 30, 2005, based on its investigation, the EEOC issued Determinations for Plaintiffs and other employees of Defendant who had filed charges of discrimination.² The Determinations concluded that Defendant discriminated against. Plaintiffs in violation of Title. VII.³

II. SUMMARY JUDGMENT STANDARD

Rule 56 of the Federal Rules of Civil Procedure mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a sufficient showing of the existence of an element essential to the party's case, and on which that party will bear the burden at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc); see also Baton Rouge Oil and Chem. Workers Union v. ExxonMobil Corp., 289 F.3d 373, 375 (5th Cir.2002). In deciding a motion for summary judgment, the Court must determine whether "the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits filed in support of the motion, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. Cry P. 56(c); Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. 2548; Hart v. Hairston, 343 F.3d 762, 764 (5th Cir.2003).

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." Lincoln Gen. Ins. Co. v. Reyna, 401 F.3d 347, 349 (5th Cir. 2005). The moving party, however, need not negate the elements of the non-movant's case. See 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.'" Duffy v. Leading Edge Prods., Inc., 44 F.3d 308, 312 (5th Cir.1995) (quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 913 (5th Cir.1992)).

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. 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. 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" DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir.2005) (internal citations omitted).

In deciding whether a genuine and material fact issue has been created, the facts and inferences to be drawn from them must be reviewed 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). However, factual controversies are resolved in favor of the non-movant "only when there is an actual controversy—that is, when both parties have submitted evidence of contradictory facts." Olabisiomotosho v. City of Houston, 185 F.3d 521, 525 (5th Cir.1999). The non-movant's burden is not met by mere reliance on the allegations or denials in the non-movant's pleadings. See Diamond Offshore Co. v. A & B Builders, Inc., 302 F.3d 531, 545 n. 13 (5th Cir.2002). Likewise, "unsubstantiated or conclusory assertions that a fact issue exists" do not meet this burden. Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir.1998). Instead, the nonmoving party must present specific facts which show "the existence of a `genuine' issue concerning every essential component of its case." Id. 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, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990)).

Affidavits cannot preclude summary judgment unless they contain competent and otherwise admissible evidence. See FED. R. Cry. P. 56(e); Love v. Nat'l Med. Enters., 230 F.3d 765, 776 (5th Cir.2000); Hunter-Reed v. City of Houston, 244 F.Supp.2d 733, 745 (S.D.Tex.2003). A party's self-serving and unsupported statement in an affidavit will not defeat summary judgment where the evidence in the record is to the contrary. See In re Hinsley, 201 F.3d 638, 643 (5th Cir.2000).

Finally, "[w]hen evidence exists in the summary judgment record but the non-movant fails even...