Gill v. Concord Ems, Inc.
| Decision Date | 08 February 2023 |
| Docket Number | Civil Action 4:20-CV-528 |
| Parties | SHAWN GILL, et al., Individually and On Behalf of All Others Similarly Situated, Plaintiff, v. CONCORD EMS, INC. and GENEVA TRANSPORT, INC., Defendant. |
| Court | U.S. District Court — Southern District of Texas |
MEMORANDUM AND RECOMMENDATION
Pending before the Court[1] are Plaintiffs' Motion for Partial Summary Judgment (Dkt. No. 74), Defendants' Motion to Strike and Objections to Plaintiffs' Summary Judgment Evidence (Dkt. No. 79), and Defendants' Motion for Final Summary Judgment. (Dkt No. 80.) Based on a thorough review of the motions, arguments, and relevant law, the Court RECOMMENDS Defendants' Motion to Strike and Objections to Plaintiffs' Summary Judgment Evidence be GRANTED and both motions for summary judgment be DENIED.
This is a collective action filed under the Fair Labor Standards Act (“FLSA”) to recover unpaid overtime wages. (Dkt. No. 39 at 1.) 29 U.S.C. §201. Defendant Concord EMS (“Concord”) and Defendant Geneva Transport (“Geneva”) provide transportation to individuals in Houston. (Dkt. No. 39 at 1; Dkt. No. 43 at 5.) Both Concord and Geneva are owned by Gloria Broussard. (Dkt. No. 43 at 5.) Broussard served as the incorporator/organizer, was the initial director, and presides as president for both companies. (Dkt. No. 74 at 4; Dkt. No. 74-1 at 20-25, 61.) She also signs both companies' paychecks. (Dkt. No. 82 at 7.)
Plaintiffs are current and former employees of Geneva. Five plaintiffs are former Geneva drivers: Shawn Gill from 2015 to February 2020; Simon Guzman from June 2019 to November 2019; Malik Luster from January 2019 to March 2020; Devon Leith from September 2019 to early 2020; and Michael Steven Pickel from September 2017 to late 2018. (Dkt. No. 39 at 3; Dkt. No. 40 at 8-14.) One plaintiff is a current Geneva driver: Burnell R. Bell from October 2018 to present. (Dkt. No. 39 at 4; Dkt. No. 40 at 8.)
Plaintiffs filed suit on February 14, 2020. (Dkt. No. 1.) In their fourth amended complaint, Plaintiffs alleged that Defendants' pay practices constitute a willful violation of the FLSA's overtime requirements. (Dkt. No. 39 at 11-12.) Geneva's employees are paid biweekly and may work up to 80 hours over the course of two weeks, however the breakdown of hours between the weeks is where Plaintiffs' claim rests. (Id. at 7.) While the hours presumably break down into 40 hours per week, Plaintiffs explain that they would occasionally work more than 40 hours in a single week.[2] Plaintiffs allege that they were not paid time-and-a-half for those additional hours. (Dkt. No. 39 at 2.)
According to Plaintiffs, if they worked more than 40 hours during one week of their pay schedule, their hours would be limited in the other week or they would be instructed to work “off the clock.” (Id. at 9.) This kept their total hours worked at the end of the two-week period to approximately 80 hours. (Id.) Plaintiffs allege that Defendants developed this pay practice to hide if an employee worked over 40 hours per week to avoid paying overtime compensation. Plaintiffs assert that Concord employees are subject to the same pay practice. (Id. at 8-9.) Plaintiffs further allege that Defendants are both an integrated enterprise and joint employers. (Id. at 5.) Plaintiffs admit that Geneva's gross income does not amount to the $500,000 threshold necessary to bring suit under the FLSA, but if Defendants are joint employers or a single enterprise they together exceed this amount. (Id. at 6; Dkt. No. 74 at 6.)
Until March 2020, Concord and Geneva operated out of the same location. (Dkt. No. 74 at 9; Dkt. No. 80 at 7.) Defendants also share a 1-800 line. (Dkt. No. 74 at 5; Dkt. No 80 at 7.) Concord has an additional direct number, while Geneva appears to solely use the 1-800 number. (Dkt. No. 74-1 at 92-93; Dkt. No. 80 at 7.) Plaintiffs assert that during the relevant period Concord and Geneva shared a website. (Dkt. No. 74 at 9.) Plaintiffs claim that in an “attempt to distinguish the businesses” after the lawsuit was filed, Geneva tried to make its own separate site. (Dkt. No. 74 at 9.) In support of this allegation, Plaintiffs attached a screenshot of the webpage “genevatransport.com,” which briefly describes Geneva and promises that the “new site” is coming soon. (Dkt. 74-1 at 93.) Defendants dispute the credibility of this claim that they shared a website, citing to the currently separate webpages. (Dkt. No 80 at 15.) Defendants, however, admit that Concord issued some replacement checks for Geneva employees. (Id. at 18.) In interrogatories, Concord stated that the two companies “have separate EIN numbers, bank accounts, insurance, payroll, uniforms, time clocks, tablets, and vehicles, as well as file separate tax returns.” (Dkt. No. 74-1 at 61.)
Concord employs licensed paramedics and emergency medical technicians (“EMTs”) to provide medical ambulance services for customers that require medical care. (Dkt. No. 44 at 14.) Geneva provides “unskilled wheelchair van delivery services” and employs drivers to transport customers from their homes or care facilities to medical appointments. (Id. at 14-15.) Unlike Concord drivers, Geneva drivers are not required to have any kind of special licensing or qualifications.
Plaintiffs assert that Gill, Pickel, and Luster “were hired by Concord and interchanged with Geneva.” (Dkt. No. 82 at 5.) Defendants refute that there is any evidence of this claim, only admitting to a “one-time transfer” of Gill from Concord to Geneva. (Dkt. No. 86 at 6.) Gill testified that he was hired by Concord in 2015 as a medical transport driver. (Dkt. No. 74-1 at 27.) He explained that in 2018 he became a supervisor and transferred over to Geneva. (Id. at 28.) He attested that he continued to be a driver after he was transferred, which Geneva confirmed in interrogatories. (Id. at 28, 80.) Gill was not a licensed EMT. (Id. at 46.) Defendant Pickel testified that he was hired by Concord, wore a Concord uniform and drove a Concord van during his employment. (Id. at 37-38.) He further claimed that during the last six weeks of his work Concord transferred him over to Geneva. (Id. at 38.) Similarly, Defendant Luster testified he was hired by Shamia Harper to work for Concord and that he drove a Concord van and wore a Concord uniform. (Id. at 34.) Luster also alleged that during his employment the company was referred to as either “Concord/Geneva” or “Geneva/Concord.” (Id.)
The parties disagree as to the amount of management authority Broussard asserted. Plaintiffs' motion for summary judgment asserts that Broussard was involved in the operation of both companies and that she directed Gill getting a promotion. (Id. at 14-15.) Defendants contend that the two companies were managed by their respective employees. (Dkt. No. 80 at 16-17.)
The parties agreed to a conditional class of Geneva employees but disagreed as to whether Concord should be included in the class. This Court ruled that Concord employees should not be included in the class. (Dkt. No. 47.) Plaintiffs moved for partial summary judgment, asking the Court to hold that the companies constitute a single enterprise. (Dkt. No. 74.) Defendants filed a Motion to Strike and Objections to Plaintiffs' Summary Judgment Evidence, to which Plaintiffs have not responded, objecting to evidence purporting to show that Concord and Geneva shared insurance because Concord's vehicles were allegedly listed on Geneva insurance cards. (Dkt. No. 79.) Defendants also filed their own motion for summary judgment, asking the Court to find that they were neither a joint employer nor a unified enterprise. (Dkt. No. 80.) The Court recommends the motion to strike and objections be granted and both motions for summary judgment be denied because there are genuine disputes as to material fact on both the single enterprise and joint employer issues.
Summary judgment is appropriate under Rule 56 when “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). A genuine dispute of material fact exists “when the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Williams v. McCollister, 671 F.Supp.2d 884, 887 (S.D. Tex. 2009) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The moving party has the initial burden of identifying the basis for the motion and pointing to materials in the record that demonstrate the absence of a genuine dispute of material fact. Coastal Agric. Supply, Inc. v. JP Morgan Chase Bank, N.A., 759 F.3d 498, 505 (5th Cir. 2014) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The movant may also argue that the nonmovant failed to produce evidence in support of at least one element of a cause of action for which he bears the burden of proof. Celotex Corp., 477 U.S. at 322-23; Austin v. Kroger Tex., L.P., 864 F.3d 326, 335 (5th Cir. 2017). If the movant satisfies the initial burden, the burden shifts to the nonmovant to produce evidence of a genuine factual dispute; he cannot merely rely on the pleadings. Coastal Agric. Supply, Inc., 759 F.3d at 505.
In reviewing a motion for summary judgment, the court may not weigh the evidence or make any credibility determinations. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S 133, 150 (2000); Williams v. Time Warner Operation, Inc., 98 F.3d 179, 181 (5th Cir. 1996). However, the court must make reasonable factual inferences in favor of the nonmoving party without accepting “[u]nsubstantiated assertions, improbable inferences, [or] unsupported speculation” as sufficient to carry the nonmovant's burden. Brown...
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