Ford v. Houston Indep. Sch. Dist., Civ. A. H-13-2598

• Court: United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
• Writing for the Court: MELINDA HARMON UNITED STATES DISTRICT JUDGE
• Parties: HAROLD FORD AND JOFFERY REID, Plaintiffs, v. HOUSTON INDEPENDENT SCHOOL DISTRICT, Defendant.
• Docket Number: Civ. A. H-13-2598
• Decision Date: 18 March 2015

HAROLD FORD AND JOFFERY REID, Plaintiffs,
v.
HOUSTON INDEPENDENT SCHOOL DISTRICT, Defendant.

Civ. A. H-13-2598

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

March 18, 2015

OPINION AND ORDER

Pending before the Court in the above referenced cause, seeking overtime compensation for "extra" work that Plaintiffs Harold Ford ("Ford") and Joffery Reid, Jr. ("Reid") performed, allegedly willfully denied in violation of the Fair Labor Standards Act of 1938 ("FLSA"), 29 U.S.C. § 201(a)(1), et seq., is Defendant the Houston Independent School District's ("HISD's") motion for summary judgment (instrument #12) based on the "occasional or sporadic" exemption under 29 U.S.C. § 207(p)(2) and its implementing regulation, 29 C.F.R. § 553.30.

While there is almost no case law, published or unpublished, on the occasional or sporadic exemption to overtime compensation under the FLSA, there are two on-point cases related to the instant suit pending against HISD in the Houston Division of the Southern District of Texas: Blair v. HISD, H-13-2628, on the docket of the Honorable Gray Miller; and Franklin v. HISD, H-13-3207, pending before the Honorable Vanessa Gilmore. Both courts have issued orders denying summary judgment to HISD, but Judge Miller is currently considering a motion to reconsider,

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while Judge Gilmore's case is set for trial. The relevant documents of each have been made part of the record of this case, as will be discussed. See Plaintiffs' post-submission notification of relevant authority (#21); HISD's Response (#24); Plaintiff's post-submission notification of opposition to reconsideration (#26); and Plaintiffs' post-submission notification of relevant authority (#28), of which this Court takes judicial notice.¹ The same attorney, Thomas H. Padgett, Jr., represents the plaintiffs in all three actions, while Paul A. Lamp represents HISD in all of them. While the facts differ slightly, the same issue is raised in all three suits and is one of first impression.

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Standard of Review

Summary judgment under Federal Rule of Civil Procedure 56(c) is appropriate when, viewing the evidence in the light most favorable to the nonmovant, the court determines that "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, 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." A dispute of material fact is "genuine" if the evidence would allow a reasonable jury to find in favor of the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Initially the movant bears the burden of identifying those portions of the pleadings and discovery in the record that it finds demonstrate the absence of a genuine issue of material fact on which the nonmovant bears the burden of proof at trial; a "complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Lujan v. National Wildlife Federation, 497 U.S. 871, 885 (1990); Edwards v. Your Credit, Inc., 148 F.3d 427, 431 (5^th Cir. 1998).

If the movant meets its burden and points out an absence of evidence to prove an essential element of the nonmovant's case on which the nonmovant bears the burden of proof at trial, the nonmovant must then present competent summary judgment evidence to support the essential elements of its claim and to demonstrate that there is a genuine issue of material fact for trial. National Ass'n of Gov't Employees v. City Pub. Serv. Board, 40

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F.3d 698, 712 (5^th Cir. 1994). "[A] complete failure of proof concerning an essential element of the nonmoving party's case renders all other facts immaterial." Celotex, 477 U.S. at 323. The nonmovant may not rely merely on allegations, denials in a pleading or unsubstantiated assertions that a fact issue exists, but must set forth specific facts showing the existence of a genuine issue of material fact concerning every element of its cause(s) of action. Morris v. Covan World Wide Moving, Inc, 144 F.3d 377, 380 (5^th Cir. 1998).

Conclusory allegations unsupported by evidence will not preclude summary judgment. National Ass'n of Gov't Employees v. City Pub. Serv. Board, 40 F.3d at 713; Eason v. Thaler, 73 F.3d 1322, 1325 (5^th Cir. 1996). "'[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment . . . .'" State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5^th Cir. 1990), quoting Anderson v. Liberty Lobby, Inc.. 477 U.S. 242, 247-48 (1986). "Nor is the 'mere scintilla of evidence' sufficient; 'there must be evidence on which the jury could reasonably find for the plaintiff.'" Id., quoting Liberty Lobby, 477 U.S. at 252. The Fifth Circuit requires the nonmovant to submit "'significant probative evidence.'" Id., quoting In re Municipal Bond Reporting Antitrust Litig., 672 F.2d 436, 440 (5^th Cir. 1978), and citing Fischbach & Moore, Inc. v. Cajun Electric Power Co-Op., 799 F.2d 194, 197 (5^th Cir. 1986). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Thomas v. Barton Lodge II, Ltd., 174 F.3d 636, 644 (5^th

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Cir. 1999), citing Celotex, 477 U.S. at 322, and Liberty Lobby, 477 U.S. at 249-50.

Allegations in a plaintiff's complaint are not evidence. Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047 (5^th Cir. 1996)("[P]leadings are not summary judgment evidence."); Johnston v. City of Houston, Tex., 14 F.3d 1056, 1060 (5^th Cir. 1995)(for the party opposing the motion for summary judgment, "only evidence--not argument, not facts in the complaint--will satisfy' the burden."), citing Solo Serve Corp. v. Westown Assoc., 929 F.2d 160, 164 (5^th Cir. 1991). The nonmovant must "go beyond the pleadings and by [his] own affidavits, or by depositions, answers to interrogatories and admissions on file, designate specific facts showing that there is a genuine issue of material fact for trial." Giles v. General Elec. Co., 245 F.3d 474, 493 (5^th Cir. 2001), citing Celotex, 477 U.S. at 324.

The court must consider all evidence and draw all inferences from the factual record in the light most favorable to the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); National Ass'n of Gov't Employees v. City Pub. Serv. Board, 40 F.3d at 712-13.

Summary judgment may be employed to adjudicate affirmative defenses.² U.S. v. McLean, 420 F. Supp. 2d 613, 615 (E.D. Tex. 2006), citing James W. Moore, et al., Moore's Fed.

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Practice ¶56 (3d ed. 1999). The party moving for summary judgment on an affirmative defense must submit evidence to support each element of the defense and show there is no genuine issue of material fact regarding it. Id., citing Rushing v. Kansas City S. Ry. Co., 185 F.3d 496, 505 (5^th Cir. 1999).

Applicable Substantive Law

Congress enacted the FLSA in 1938, during the Great Depression, with the intent to "protect all covered workers from substandard wages and oppressive working conditions." Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728, 739 (1981). The FLSA mandates that employers pay overtime compensation for nonexempt employees.³ Rainey v. McWane, Inc., 314 Fed. Appx. 693, 694 (5^th Cir. Mar. 12, 2009), citing 29 U.S.C. § 207(a). The FLSA, 29 U.S.C. § 207(a)(1), generally requires an employer to pay employees who work more than forty hours per seven-day work week at a rate not less than one and one-half times the employee's regular rate. Allen v. Coil Tubing Servs., LLC, Civ. A. No. H-08-3370, 2011 WL 4916003, *5 (S.D. Tex. Oct. 17, 2011); Vela v. City of Houston, 276 F.3d 659, 666 (5^th Cir. 2001); Thibodeaux v. Executive Jet Intern., Inc., 328 F.3d 742, 749 (5^th Cir. 2003).

Under 29 U.S.C. § 216(b), an employer who violates the FLSA shall be liable for "unpaid overtime compensation . . . and in an additional equal amount as liquidated damages." Moreover

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any person who repeatedly or willfully violates Section 206 or 207, relating to wages, shall be subject to a civil penalty not to exceed $1,100 for each such violation." 29 U.S.C. § 216(e)(2).⁴

Thus an employer who violates the FLSA is liable for liquidated damages equal to the unpaid overtime unless the court finds that the employer acted in good faith and had reasonable grounds to believe that his actions complied with the statute and therefore declines to award or reduces the amount of the liquidated damages. Stokes v. BWXT Pantex, LLC, 424 Fed. Appx. 324, 326 (5^th Cir. May 4, 2011), citing 29 U.S.C. § 260. The employer bears the burden of demonstrating that it acted in good faith to escape mandatory liquidated damages under the statute. Perez, 2011 WL 2672431, at *9, citing Singer v. City of Waco, Tex., 324 F.3d 813, 821 (5^th Cir. 2003), and Stokes v. BWXT Pantex, LLC, 424 Fed. Appx. at 326.

Title 29 U.S.C. § 211(c) requires that the employer "make, keep and preserve such records of the persons employed by him and of the wages, hours, and other conditions of employment

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maintained by him." As summarized in Lynch v. Jet Center of Dallas, LLC, Civ. A. No. 3:05-CV-222 9-L, 2007 WL 211101, *5 (N.D. Tex. Jan. 26, 2007),

Under the FLSA, "an employee who brings suit for unpaid overtime compensation bears the burden of proving, with definite and certain evidence, that he performed work for which he was not properly compensated." Reeves v. International Telephone & Telegraph Co., 616 F.2d 1342, 1351 (5^th Cir. 1980), cert. denied, 449 U.S. 1077 . . . (1981), implicit overruling on other grounds recognized in Heidtman v. County of El Paso, 171 F.3d 1038, 1042 n.4 (5^th Cir. 1999). Where an employer keeps incomplete or [in]accurate records, however, "an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and

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