Gonzalez v. Smith Int'l, Inc.

Decision Date29 January 2010
Docket NumberCivil Action No. C–08–311.
PartiesAlfredo GONZALEZ, et al., Plaintiffs, v. SMITH INTERNATIONAL, INC., W–H Energy Services, Inc., and Boyd's Bit Service, Inc., Defendant.
CourtU.S. District Court — Southern District of Texas

OPINION TEXT STARTS HERE

Robert Eric Reed, Vela Reed PLLC, Filemon B. Vela, Jr., Rhodes Vela LLP, Houston, TX, Joe A. Flores, Attorney at Law, Corpus Christi, TX, Mark J. Levine, Levine & Associates, PC, Bellaire, TX, for Plaintiffs.

Christopher E. Moore, Andrew Phelps Burnside, Christine M. White, Coats and Rose, New Orleans, LA, for Defendant.

ORDER ADOPTING MEMORANDUM AND RECOMMENDATION

HAYDEN HEAD, Senior District Judge.

On January 7, 2010, a Memorandum and Recommendation was entered, recommending, in part, a finding that Defendants Boyd's Bit Service, Inc., and W–H Energy Services, Inc., fell within the Motor Carrier Act exemption to the Fair Labor Standards Act with regard to the overtime claims of Plaintiffs Robert Garcia and Juan Moreno. The Magistrate Judge also recommended a finding that W–H Services, Inc., and Boyd's Bit Service, Inc., were joint employers of Plaintiffs Garcia and Moreno.

Plaintiffs Garcia and Moreno have advised the Court that they have no opposition to the Memorandum and Recommendation's proposed disposition of their Fair Labor Standards Act claims.

When no timely objection to the Magistrate Judge's Memorandum and Recommendation is filed, the Court need only satisfy itself that there is no “clear error” on the face of the record in order to accept the Magistrate Judge's recommendation. See Guillory v. PPG Industries, Inc., 434 F.3d 303, 308 (5th Cir.2005) (citing Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1420 (5th Cir.1996)). Having reviewed the pleadings and motions on file, the Court finds no clear error in the Magistrate Judge's recommendation on the Fair Labor Standards Act claims.

Defendants' motion for summary judgment (D.E. 28) is GRANTED, and Plaintiff's Motion for Partial Summary Judgment (D.E. 30) is DENIED. It is the judgment of this Court that Plaintiffs Garcia and Moreno take nothing against Defendants Boyd's Bit Service, Inc., and W–H Energy Services, Inc., on their claims arising under the Fair Labor Standards Act.

MEMORANDUM AND RECOMMENDATION

B. JANICE ELLINGTON, United States Magistrate Judge.

Plaintiffs Miguel Montemayor, Robert Garcia, Alfredo Gonzalez, Juan Moreno, Ruben Hernandez and Federico “Fred” Pena allege that Smith International, Inc. (Smith), W–H Energy Services, Inc. (W–H Energy), and Boyd's Bit Service, Inc. (Boyd's) 1 violated provisions of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and 42 U.S.C. § 1981. Pending are defendants' motions to dismiss plaintiffs' FLSA claims and discrimination claims under Title VII and 42 U.S.C. § 1981 (D.E. 28, 29) and plaintiffs' motion for partial summary judgment on their FLSA claims (D.E. 30), all filed on November 13, 2009. All parties responded to the pending motions on December 14, 2009 (D.E. 41, 51, 57). Defendants filed a reply to plaintiffs' response to the FLSA claims on December 28, 2009 (D.E. 73).

JURISDICTION AND VENUE

This court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. Venue is proper in this court because a substantial part of the actions about which plaintiffs complain occurred in Jim Wells County, Texas, which is located in the Southern District of Texas.

BACKGROUND

The following recitation of facts is taken from plaintiffs' pleadings and evidence in the record, viewed in the light most favorable to them. Plaintiffs are former employees of Boyd's, which is a subsidiary of W–H Energy. W–H Energy provides products and services used primarily for the drilling, completion and production of oil and natural gas wells through subsidiary companies. Defendant Smith is a Delaware corporation doing business in Texas and it acquired W–H Energy through a merger in August 2008. Boyd's is a Louisianacorporation with its principal place of business in Texas and Louisiana.

A. Juan Moreno

Plaintiff Juan Moreno began working for Boyd's as a shop hand in Edinburg, Texas in November 2005 (Deposition of Juan Moreno, D.E. 54, pp. 17–18, 24). At the time he was hired he was paid $6.00 per hour plus time-and-a-half when he worked more than 40 hours per week ( Id. at 19, 22). During that time he worked exclusively in the shop and not out in the field ( Id. at 21).

At some point in 2006 Moreno transferred to the Midland, Texas shop ( Id. at 24). He continued to work as an hourly employee in Midland until early in 2007 ( Id. at 29–30). At that time plaintiff began to receive a salary in the amount of $2,800 per month, plus a bonus, rather than an hourly wage. His title was changed to operator and he considered it a promotion ( Id. at 31, 44). Although he worked in excess of 40 hours per week, he never received overtime pay after he became a salaried employee ( Id. at 32).

Moreno obtained a commercial driver's license while working in Midland and drove trucks ranging from a Ford F–350 to an 18–wheeler ( Id. at 33–34, 37). He drove to Hobbs, New Mexico twice in a Ford F–350 “dually” truck to drop off equipment that customers had ordered ( Id. at 37–39). Moreno used a forklift to load the equipment on the truck and followed safe loading procedures ( Id. at 40–41). At the job site he would unload and set up the equipment (Moreno Depo., D.E. 55, pp. 56–57).

While Moreno was working in Midland, he lived in the shop with some other employees because he could not afford to rent an apartment on his pay of $6.00 per hour (Moreno Depo., D.E. 70, p. 91). He asked to be put up in a hotel but that did not happen. However, two employees who traveled from Louisiana to Midland were provided decent accommodations (Moreno Depo., D.E. 55, pp. 91, 107).

In the last quarter of 2007 Moreno requested a job transfer. The Edinburg office had closed in the interim and the closest office to Moreno's home was in Alice, Texas. He transferred to the Alice office early in 2008. Moreno's salary did not change from the $2,800 per month which he had been making in Midland, although he did not receive job bonuses for the first month because the manager of the Alice shop told Moreno he was unsure about the quality of his work ( Id. at 62–63, 67). After a short while Moreno began to work jobs on his own again. He continued to drive 18–wheelers and smaller trucks while he worked in Alice ( Id. at 63–64). On one occasion Moreno drove to Louisiana with a co-worker to retrieve another truck carrying equipment and then drove the truck back to Texas ( Id. at 65–66).

At the Alice shop, the manager, Joe Hall, would make jokes using words like “Mexican,” “beaners,” and “wetbacks,” and “niggers.” He would say things like We would have more work if you guys would go back.” (Moreno Depo., D.E. 70, p. 135, 160). He often used profanity, talking about “fucking Mexicans” and making jokes. People would laugh at the jokes, although Moreno would not ( Id. at 160–161).

Moreno terminated his employment with Boyd's in July 2008 (Moreno Depo., D.E. 55, p. 67). He began working for a tool rental firm in Edinburg that same month, making a monthly salary of $2,400 ( Id. at 69).

B. Robert Garcia

Plaintiff Garcia began working for Boyd's in September 2004 when it acquired his previous employer, referred to as “Prime” in the record (Deposition of Robert Garcia, D.E. 52, pp. 15, 21, 23). He worked as an operator and his job duties included pressure testing equipment out in the field and working on lubricators, pipes and blowout preventers ( Id. at 15, 25). At Prime he had made $8.00 per hour ( Id. at 68). When he began to work for Boyd's he was converted to a salary and he made $2,600 per month ( Id. at 24–25). Garcia spent about 25 percent of his time hauling equipment to and from the shop and job sites. He spent the remainder of his time doing field work and shop work ( Id. at 26). At another point, Garcia said he spent 60 percent of his time driving and working in the field and 40 percent of his time working in the shop ( Id. at 29). When he worked in the shop he spent most of his time working on equipment, tearing down equipment, painting, washing, inspecting and refueling ( Id. at 30).

Garcia was transferred from Edinburg, Texas to Midland, Texas in November 2006 ( Id. at 28). He was promised a raise from $2,600 per month to $4,200 per month when he moved to Midland, but did not receive an increase until three and one-half months later, in March 2007. At that time his salary was increased to $3,800 per month (Garcia Depo., D.E. 52, p. 40; D.E. 53, p. 101). In addition, he received bonuses in the amount of $250 to $375 per job (Garcia Depo., D.E. 53, pp. 104–105).

Garcia's job duties included some clerical work and also communicating with customers (Garcia Depo., D.E. 52, p. 53). Plaintiff told fellow employees Fred Pena, Juan Moreno, Fred Gonzalez and Mike Montemayor that he believed he should be paid overtime (Garcia Depo., D.E. 53, p. 93). He thought the Boyd's payroll scheme violated the FLSA because he was paid the same amount of money whether he worked 40 hours, 90 hours or 100 hours per week ( Id. at 94).

Garcia worked 85 to 90 hours per week while he was in Midland ( Id. at 68). He had obtained a commercial driver's license while working at Prime and continued to use it (Garcia Depo., D.E. 52, p. 14). He kept a driver's log in accordance with DOT regulations ( Id. at 42). He drove Ford F–350 trucks as well as 18–wheeler trucks while at work (Garcia Depo., D.E. 52, p. 14–15, 42; D.E. 53, p. 80). Garcia never drove outside the state of Texas while he worked in Midland (Garcia Depo., D.E. 52 p. 43).

Every time Garcia would have to go to Boyd's shop in Alice where Joe Hall and Lloyd Green were in charge, Hall commented about “fucking Mexicans” taking his equipment to do jobs (Garcia Depo., D.E. 69, pp. 117–118)....

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    ...of the word "nigger" was"aggravated discrimination" sufficient to support a constructive-discharge claim); Gonzalez v. Smith Int'l, Inc., 899 F. Supp. 2d 622, 641 (S.D. Tex. 2010) (denying summary judgment on a constructive-discharge claim when record evidence showed coworkers and superviso......
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