Little v. Technical Specialty Prods., LLC

• Decision Date: 15 April 2013
• Docket Number: Case No. 4:11–CV–00717.
• Citation: 940 F.Supp.2d 460
• Parties: Dale LITTLE v. TECHNICAL SPECIALTY PRODUCTS, LLC, et al.
• Court: U.S. District Court — Eastern District of Texas

940 F.Supp.2d 460

Dale LITTLE

v.TECHNICAL SPECIALTY PRODUCTS, LLC, et al.

Case No. 4:11–CV–00717.

United States District Court,

E.D. Texas,

Sherman Division.

April 15, 2013.

David Ellis Watkins, Jason Edward Winford, Jenkins & Watkins, P.C., Dallas, TX, for Dale Little.

Charles S. Cantu, Arlington, TX, Henry Peyton Inge, Chamblee, Ryan, Kershaw & Anderson, PC, Dallas, TX, for Technical Specialty Products, LLC, et al.

MEMORANDUM OPINION AND ORDER

AMOS L. MAZZANT, United States Magistrate Judge.

Pending before the Court are Defendants' Motion for Complete, or in the Alternative, Partial Summary Judgment (Dkt. # 64), Plaintiff's Motion for Partial Summary Judgment (Dkt. # 70), and Defendants' Objection and Conformed, Amended Motion to Strike Plaintiff's Experts Brian Farrington and Scott Barnes (Dkt. # 76).

BACKGROUND

On October 31, 2011, Plaintiff filed his original complaint asserting claims against Defendants Technical Specialty Products, LLC (“TSP”), Keith Lear (“Mr. Lear”), and Donna Lear (“Ms. Lear”) (collectively, “Defendants”) for violations of the Fair Labor Standards Act (“FLSA”) (Dkt. # 1). Specifically, Plaintiff asserts that Defendants violated the FLSA by failing to pay overtime pay rates required by the FLSA for hours worked in excess of forty (40) hours in a workweek, and that Defendants discharged Plaintiff in retaliation for voicing an oral complaint about the new overtime policy implemented by Defendants. Id. Plaintiff requests judgment against Defendants for the amount of unpaid overtime compensation, liquidated damages for unpaid overtime, or, in the alternative, prejudgment interest from the date the wages became due until the date judgment is entered, reasonable and necessary attorneys' fees, post judgment interest, reinstatement, injunctive relief, payment of lost wages and future wages for retaliation, and compensatory and punitive damages. Id.

TSP is a Louisiana limited liability company that provides oilfield support services; specifically, TSP installs and services video camera systems on oil rigs. TSP is based in Baton Rouge, Louisiana, where its offices are located. Keith Lear is the founder, owner, managing member, general manager, and CEO of TSP. Donna Lear is a member of the limited liability company, its registered agent, and the operations manager of TSP's day-to-day operations.

Plaintiff was hired by TSP in May of 2011 as a Field Service Technician. Plaintiff was based out of his home in McKinney, Texas, and was assigned to drive to oil rig sites where he installed and serviced video camera systems. TSP provided Plaintiff with a company pickup truck, company iPhone, and company credit card for business expenses. Plaintiff was required to travel to various oil rigs, which were located in Texas, Louisiana, New Mexico, and Oklahoma. Plaintiff was paid on an hourly basis, and his regular rate of pay was $23.00 per hour. His overtime rate of pay was $34.50 per hour, which is one-and-one-half (1 1/2) times his regular rate of pay.

Prior to September 23, 2011, TSP's practice was to count all driving time and time spent working on the oil rigs as work time. All of this time was included in calculating regular and overtime pay. On September 23, 2011, TSP began a new overtime policy that excluded the first and last commute of the day from its overtime calculations. However, Plaintiff was still paid at his regular rate of pay for those hours spent driving.

On September 23, 2011, TSP requested Plaintiff sign a policy notice indicating his knowledge and agreement with the new overtime policy. However, Plaintiff disagreed with the policy, and noted his disagreement on the policy notice itself. Plaintiff also complained to Ms. Lear that he disagreed with the policy.

On October 21, 2011, Plaintiff was discharged. Plaintiff contends that he was discharged in retaliation for his disagreement with the new overtime policy. Plaintiff asserts that Ms. Lear stated that she heard he was planning to sue the company over the policy, and he was fired for this reason. Defendants contend that Plaintiff was fired for a variety of reasons, including the fact that his timesheets reflected an “abnormally large amount of drive time to and from work,” his drive times between identical points varied widely on different days, and his drive time far exceeded the hours other field technicians required to drive between various points.

On January 18, 2013, Defendants filed their Motion for Complete, or in the Alternative, Partial Summary Judgment (Dkt. # 64). Plaintiff filed his response on February 4, 2013 (Dkt. # 72). On February 12, 2013, Defendants filed a reply (Dkt. # 78).

On January 23, 2013, Plaintiff filed his Motion for Partial Summary Judgment (Dkt. # 70). Defendants filed their response on February 6, 2013 (Dkt. # 74). On February 18, 2013, Plaintiff filed a reply (Dkt. # 79). On February 20, 2013, Defendants filed an amended response (Dkt. # 80).

On February 7, 2013, Defendants filed their Objection and Conformed, Amended Motion to Strike Plaintiff's Experts Brian Farrington and Scott Barnes (Dkt. # 76). Plaintiff filed his response on February 25, 2013 (Dkt. # 81).

LEGAL STANDARD

The purpose of summary judgment is to isolate and dispose of factually unsupported claims or defenses. See Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment is proper if the pleadings, the discovery and disclosure materials on file, and any affidavits “[show] that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The trial court must resolve all reasonable doubts in favor of the party opposing the motion for summary judgment. Casey Enters., Inc. v. Am. Hardware Mut. Ins. Co., 655 F.2d 598, 602 (5th Cir.1981) (citations omitted). The substantive law identifies which facts are material. Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

The party moving for summary judgment has the burden to show that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Id. at 247, 106 S.Ct. 2505. If the movant bears the burden of proof on a claim or defense on which it is moving for summary judgment, it must come forward with evidence that establishes “beyond peradventure all of the essential elements of the claim or defense.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir.1986). But if the nonmovant bears the burden of proof, the movant may discharge its burden by showing that there is an absence of evidence to support the nonmovant's case. Celotex, 477 U.S. at 325, 106 S.Ct. 2548;Byers v. Dallas Morning News, Inc., 209 F.3d 419, 424 (5th Cir.2000). Once the movant has carried its burden, the nonmovant must “respond to the motion for summary judgment by setting forth particular facts indicating there is a genuine issue for trial.” Byers, 209 F.3d at 424 (citing Anderson, 477 U.S. at 248–49, 106 S.Ct. 2505). The nonmovant must adduce affirmative evidence. Anderson, 477 U.S. at 257, 106 S.Ct. 2505. The Court must consider all of the evidence but refrain from making any credibility determinations or weighing the evidence. See Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir.2007).

ANALYSIS

A. Defendants' Motion to Strike Plaintiff's Experts Brian Farrington and Scott Barnes (Dkt. # 76)

Defendants move to strike the expert testimony of Plaintiff's experts Brian Farrington (“Farrington”) and Scott Barnes (“Barnes”). Defendants contend that Farrington improperly reaches legal conclusions, Farrington's opinions are incapable of verification by any scientific method, and Farrington's opinions are unreliable because his opinions do not fit the facts of the case. Defendants argue that Barnes' initial report failed to explain his methodology, and reaches unreliable calculations of Plaintiff's damages.

In Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 590–93, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the Supreme Court instructed courts to function as gatekeepers and determine whether expert testimony should be presented to the jury. Courts act as gatekeepers of expert testimony “to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999).

The party offering the expert's testimony has the burden to prove by a preponderance of the evidence that: (1) the expert is qualified; (2) the testimony is relevant to an issue in the case; and (3) the testimony is reliable. Daubert, 509 U.S. at 590–91, 113 S.Ct. 2786. A proffered expert witness is qualified to testify by virtue of his or her “knowledge, skill, experience, training, or education.” Fed. R. Evid. 702. Moreover, in order to be admissible, expert testimony must be “not only relevant, but reliable.” Daubert, 509 U.S. at 589, 113 S.Ct. 2786. “This gate-keeping obligation applies to all types of expert testimony, not just scientific testimony.” Pipitone v. Biomatrix, Inc., 288 F.3d 239, 244 (5th Cir.2002) (citing Kumho, 526 U.S. at 147, 119 S.Ct. 1167).

In deciding whether to admit or exclude expert testimony, the Court should consider numerous factors. Daubert, 509 U.S. at 594, 113 S.Ct. 2786. In Daubert, the Supreme Court offered the following, non-exhaustive list of factors that courts may use in evaluating the reliability of expert testimony: (1) whether the expert's theory or technique can be or has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the...