Merritt v. Tex. Farm Bureau

• Decision Date: 16 May 2023
• Docket Number: Civil W-19-CV-00679-DTG
• Parties: JERRY MERRITT, Plaintiff, v. TEXAS FARM BUREAU, TEXAS FARM BUREAU BUSINESS CORPORATION, TEXAS FARM BUREAU CASUALTY INSURANCE COMPANY, TEXAS FARM BUREAU MUTUAL INSURANCE COMPANY, TEXAS FARM BUREAU UNDERWRITERS, FARM BUREAU COUNTY MUTUAL INSURANCE COMPANY OF TEXAS, SOUTHERN FARM BUREAU LIFE INSURANCE COMPANY, Defendants.
• Court: U.S. District Court — Western District of Texas

1

JERRY MERRITT, Plaintiff,
v.
TEXAS FARM BUREAU, TEXAS FARM BUREAU BUSINESS CORPORATION, TEXAS FARM BUREAU CASUALTY INSURANCE COMPANY, TEXAS FARM BUREAU MUTUAL INSURANCE COMPANY, TEXAS FARM BUREAU UNDERWRITERS, FARM BUREAU COUNTY MUTUAL INSURANCE COMPANY OF TEXAS, SOUTHERN FARM BUREAU LIFE INSURANCE COMPANY, Defendants.

Civil No. W-19-CV-00679-DTG

United States District Court, W.D. Texas, Waco Division

May 16, 2023

OMNIBUS PRE-TRIAL ORDER

DEREK T. GILLILAND, MAGISTRATE JUDGE

On May 10, 2023, the Court held a Pre-Trial Conference and heard oral argument on Defendants' Motion for Summary Judgment for Failure to Provide Notice (ECF No. 102) and the cross-motions for Summary Judgment on the White-Collar, Administrative, and Executive Exemptions (ECF Nos. 100 and 107). The Court issued oral rulings DENYING ECF No. 102, DENYING ECF No. 100, and GRANTING ECF No. 107 for the reasons stated on the record. The Court also issued oral rulings on several of the remaining motions where the parties determined oral argument was unnecessary. The Court hereby memorializes the Court's rulings on those remaining motions and issues additional guidance on Pre-Trial Procedures.

I. THE COURT'S RULINGS ON PENDING MOTIONS

2

A. Plaintiff's Motion for Partial Summary Judgment on Overtime Hours Worked (ECF No. 92)

Merritt's request for partial summary judgment that he is entitled to at least 816 hours of overtime pay is GRANTED. It is undisputed that Defendants did not keep records of the number of hours Mr. Merritt worked. See ECF No. 92 at 2-3; ECF No. 124 at 4. Both Texas Farm Bureau and Southern Farm Bureau had deponents who admitted that Merritt “likely” or could have worked more than 40 hours per week. ECF No. 92 at 2-3. In fact, Merritt's supervisor Gary Wood indicated there was “no doubt” Merritt worked overtime. ECF No. 140 at 8. Merritt testified that he believed he worked between 52-58 hours of work per week and that there were 5 weeks for travel and 5 weeks due to personal issues he did not work more than 40 hours. ECF No. 92 at 3-4. Merritt supported his testimony with dates of employment, work schedule, and duties. ECF No. 140 at 6. For purposes of the Motion, Merritt calculated the number of overtime hours based on an estimate of 12 hours of overtime worked per week and 81 weeks which excludes 10 weeks of work. ECF No. 92 at 5. Defendants counter that Merritt's estimate omits an additional 13 weeks where Merritt took time off, indicated in Merritt's personal calendar and interrogatory answers. ECF No. 124 at 14-17. In reply, Merritt revises his calculation for overtime to 12 hours per week and 68 weeks coming out to 816 hours, to account for the 13 weeks called into question by Defendants. ECF No. 140 at 10.

Summary judgment is only appropriate when the moving party shows that “there is no genuine dispute as to any material fact” and that it “is entitled to “judgment as a matter of law.” Fed.R.Civ.P. 56(a). A genuine issue of material fact exists if a “reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When considering the parties' submissions, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [its] favor.” Id. at 255. “

3

The FLSA obligates employers to keep accurate records of the hours worked by employees. 29 U.S.C. § 211(c). When an employer fails to meet that obligation, “if he [the employee] proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee's evidence. If the employer fails to produce such evidence, the Court may then award damages to the employee, even though the result be only approximate.” Anderson v Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946). Plaintiff need to only produce “some evidence” to show the amount and extent of the violation. Beliz v. W.H. McLeod & Sons Packing Co., 765 F.2d 1317, 1330 (5th Cir.1985) (emphasis added); see also Reeves v. Int'l Tel. & Tel. Corp., 616 F.2d 1342, 1351 (5th Cir. 1980) (“Where the inaccuracy is due to the employer's failure to keep adequate records as required by statute, imprecise evidence on quantum can provide a ‘sufficient basis' for damages.” (emphasis added) (quoting Mt. Clemens Pottery Co., 328 U.S. at 687)). Documentary evidence is not required to satisfy this burden, and estimates derived from Plaintiff's testimony are sufficient under Mt. Clemens. See Hobbs v. EVO Inc., 7 F.4th 241, 257 (5th Cir. 2021); Mohammadi v. Nwabuisi 990 F.Supp.2d 723, 739-40 (W.D. Tex. Jan. 2, 2014), aff'd in part, rev'd in part on other grounds and remanded, 605 Fed.Appx. 329 (5th Cir.); Garner v. Chevron Phillips Chem. Co., L.P., 834 F.Supp.2d 528, 546 (S.D. Tex. 2011) (explaining that a plaintiff may meet his initial burden through “plaintiff's testimony as to when and how many overtime hours he worked, plaintiff's affidavit to such, etc.”); Reeves, 616 F.2d at 1352 (holding that unpaid wages based on plaintiff's estimate of the average number of hours worked each week,

4

which “corresponded to the rough computations of his subconscious mind” was sufficient evidence.); Beliz, 765 F.2d at 1330 (holding that a district court “was laboring [under] a misconception of the legal standard” when it denied the plaintiffs recovery “based on [their] inability to produce the ‘definite and certain' evidence thought necessary by the district court.”).

Here, Defendants failed to keep any record of the hours which Plaintiff worked and do not dispute that. Therefore, Plaintiff is entitled to the Mt. Clemens burden-shifting framework and only needs to prove the extent of the hours he worked as a matter of just and reasonable inference. Plaintiff's calculations are based not only on his own testimony (and conservative estimates), but the confirmation from his employers that he worked overtime. To the extent that the extra 13 weeks of overtime included in Plaintiff's initial calculation negate the reasonableness of the calculation with respect to those 13 weeks, Plaintiff has adjusted his calculation. Plaintiff's updated calculation therefore meets the Mt. Clemens burden. Notably, with respect to the methodology of the calculation or the overall calculation Defendant has not proffered any evidence “of the precise amount of work performed or with evidence to negate the reasonableness of the inference to be drawn from the employee's evidence.” Mt. Clemens, 328 U.S. at 687.

Therefore, since there are no factual disputes remaining over Plaintiff's estimate (other than Defendant alleging with no underlying support that it is unsubstantiated and illegitimate, running contrary to the requirement of Mt. Clemens), the motion for partial summary judgment is appropriately GRANTED as to Merritt's revised estimate of overtime of 816 hours.

B. Plaintiff's Motion for Partial Summary Judgment on the Outside-Sales Exemption (ECF No. 94)

To meet their burden that the outside-salesperson exemption applies, Defendants must prove that Merritt had a primary duty of “making sales” within the FLSA's meaning.

5

29 C.F.R. §541.500(a). The FLSA defined “sale” or “sell” as “includ[ing] any sale, exchange, contract to sell, ... or other disposition.” 29 U.S.C. §203(k). The Supreme Court has made clear that the phrase “other...