Jones v. George R. Willy, P.C. et al, No. 4:2008cv03404 - Document 22 (S.D. Tex. 2010)
Court Description: MEMORANDUM OPINION AND ORDER Denying 19 MOTION for Summary Judgment. Granting 18 MOTION for Partial Summary Judgment.(Signed by Judge Sim Lake) Parties notified.(hcarr, )
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IN THE UN ITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION JEREMY S . JONES, Plaintiff, CIVIL ACTION NO . H-08-3404 GEORGE R . W ILLY , P .C . and GEORGE R . W ILLY, Individually, Defendants . M EMORANDUM OPIN ION AND ORDER Plaintiff, Jeremy S. Jones, brings this collective action suit against defendants, George Willy, and George Willy, individually, for unpaid overtime wages and retaliation pursuant to the Fair Labor Standards Act ( FLSA), et seq . Pending before the court are Defendants' Motion for Partial Summary Judgment ( Docket Entry No. Judgment ( Docket Entry No. defendants' motion For the reasons explained below, partial summary judgment will be granted, and plaintiff's motion for summary judgment will be denied. Undispu ted Facts George R . Willy Willy, paralegal . their work: On July a principal 1aw firm of George 2008, defendants hired plaintiff to work as Plaintiff assisted three supervising attorneys with Mervyn Mosbacher, Lisa Okoh-Brown , and Kevin Lear. Plaintiff's supervising attorneys would assign tasks such as researching various issues, writing legal documents and memoranda , and communicating with the firm 's clients. Plaintiff received an annual salary of $40,000.00 and was classified as employee under the FLSA . failure Plaintiff comp lained about defendants' pay overtime . defendants' failure loss of his A few days later, non-exempt Following his complaints about the pay overtime, Willy threatened plaintiff and then stopped speaking October the plaintiff . 2008, plaintiff resignedx II . Standard of Review Summary judgment is authorized if the movant establishes that there entitles genuine dispute about any material fact and the judgment. Fed. material facts are 56( c) ngenuine' ' the evidence Disputes about such that verdict for the nonmoving party . reasonable jury could return Anderson v. Libertv Lobbv, Incw 1O6 S.Ct. 2505, (1986). The Supreme Court has interpreted the plain language of Rule 56( to c) mandate the entry of summary judgment nafter adequate time discovery and upon motion, against party who fails make a l Declaration of Jeremy S . Jones, Exhibit A attached to Plaintiff's Motion for Summary Judgment, Docket Entry No . 19 . See also Defendant's Objections and Answers to Plaintiff's First Set of Interrogatories, Exhib it C attached to Plaintiff's Motion for Summary Judgment, Docket Entry No. 19, p. 4 ( nplaintiff was employed between July 7, 2008 and October 17, 2008 in the position of paralegal. Plaintiff was compensated at the rate of $40,000.00 per year . Plaintiff was classified as a non-exempt employee under the Fair Labor Standards Act.'). ' - 2- showing sufficient establish the existence of an element essential to that party 's case, and on wh ich that party will bear the burden of proof at trial .' Celotex Corp . v . Catrett, 1O6 S .Ct . ' 2548, 2552 ( 1986). A party moving 'demonstrate the ab sence summary judgment nmust genuine issue of material factr' but need not neqate the elements of the nonmovant 's case .' Little v . ' Liquid Air Corp ., F.3d 1069, 1075 ( quoting Celotex, 1994) ( en banc), 2553-2554). the moving party meets this burden, Rule 56( requires the nonmovant c) the pleadings and show go beyond affidavits, depositions, answers to interrogatories, adm issions file, other adm issible evidence that specific facts exist over which there trial. Id. ( citing Celotex, genuine issue for S.Ct. at 2553-2554). In reviewing the evidence nthe court must draw all reasonable inferences in favor m ay the nonmoving party, and determ inations weigh the evidence .' ' Plumbinc Products, Incw make credibility S. CY. 2097, controversies are to be resolved in favor only when b0th parties contradictory facts .' Little , ' have Reeves v . Sanderson ( 2000). Factual the nonmovant, 'but ' subm itted evidence F .3d at 1075. 111 . A nalysis Defendants contend that they are entitled to summary judgment on plaintiff's retaliation claim , and p laintiff contends that he is entitled summary judgment on his claim for overtime pay. - 3- A. Plaintiff's Claim for Failure to Pay Overtim e Plaintiff contends that he entitled to summary judgment on claim for unpaid overtime because none dispute .z estab lish this claim are the elements needed Defendants respond that genuine issues of material fact concerning the am ount overtime that plaintiff worked and whether they knew that plaintiff was working overtime preclude the motion from granting plaintiff's summary judgment on his claim for unpaid overtime. 3 Applicable Law Plaintiff seeks to hold defendants liable violation of the overtime provision of the FLSA, 29 U . C. 5 2O7( S. a). This provision requires employers to regular rate week . Id . one and one-half times hours worked In order excess prevail on his claim employee 's forty hours per unpaid overtime , plaintiff must p rove by a preponderance of the ev idence : the existence of an employment relationship; ( that he was engaged in 2) commerce or employed by an enterprise engaged in commerce ; defendants failed that he inference . Pay owed Id . overtime required by amount claimed by that FLSA ; and just and reasonable See also Harvill v . Westward Communications, L. C., 433 F. 428, 439 ( L. 3d 5th 2005). z plaintiff's Motion for Summary Judgment , Docket Entry No . 4-5 %% 8-13 . 3 Defendants' Response to Judgment, Docket Entry No . 20 . Plaintiff's Motion for Summary Application of the Law to the Facts Plaintiff argues that he entitled to summary judgment on his claim for unpaid overtime because defendants judicially admit that he a former emp loyee, that George R . W illy , an enterprise engaged in commerce as defined in the FLSA , and he worked more than forty hours a week but did not receive overtime pay . Citing his own declaration that he worked an average of twenty hours per week overtime totaling 30O hours over the course of employment, plaintiff asks the court overtime compensation for find that he owed hours as a matter o f law .4 Defendants respond that p laintiff is not entitled to summary judgment on claim for unpaid overtim e because they 'dispute ' that E pllaintiff worked overtime in such amounts, or that they knew he was working such alleged overtime .'s ' support this argument, defendants submit the declaration of George R . Willy and time records maintained plaintiff during the course his employment . Willy states that : During his employment, Mr . Jones and a11 other paralegals were required to clock-in and clock-out so that the Firm could keep track of the hours they worked . Mr . Jones' time record s reflect that M r. Jones sometimes worked in excess of 40 hours in a work week, but he did not work 20 overtime hours per week, as he claims. Attached to this l plaintiff's Motion for Summary Judgment , Docket Entry No . 19, p . 5 :% 10-13 ( citing Declaration of Jeremy S. Jones, Exhibit A attached thereto). sDefendants' Response to Plaintiff's Judgment, Docket Entry No . 2O, p . 1 . Motion for Summary declaration as Exhib it 1 are Mr . Jones' time records during his employment with the Firm . Exhibit 1 was prepared at or near the time of the events recorded in those documents . At the time those documents contained in Exhibit 1 were prepared, it was the Firm 's regular practice to make and keep such documents in the regular course of business activity . These documents are exact duplicates of the original . In or about October 2008, Mr . Jones informed me during a meeting that he had worked overtime without receiving compensation for such overtime work. This was the first and only time that Mr . Jones complained to me , and to my knowledge , to anyone else at the Firm , about working overtime without receiving overtime compensation . During the meeting, Mr . Jones did not specify how many overtime hours he had allegedly worked . Within days of the October 2008 meeting, Jones resigned his employment with the Firm .6 Attached maintained Willy's declaration are copies time records the plaintiff indicating that there were two three weeks during which he worked more than hours of overtime , but there were also weeks during which work any overtime, and that most weeks he worked between one to three hours of overtime for a total number of overtime hours that are far less than the 3OO hours for wh ich p laintiff seeks compensation . Because 50th parties have submitted evidence contradictory facts regarding the amount of overtime plaintiff worked while employed defendants, genuine issues of material fact preclude the court from granting summary judgment on this issue. 6 Declaration of George R . Willy, Exhibit 1 attached to Defendants' Response to Plaintiff's Motion for Summary Judgment, Docket Entry No . 2O, %% 4-6 . - 6- B. Plaintiff's Claim for Retaliation Defendants contend that they are entitled to summary judgment on plaintiff's retaliation claim because plaintiff present evidence showing that he suffered injuryx unable materially adverse Plaintiff responds that defendants are not entitled summary judgment on retaliation claim because defendants retaliated against him for engaging in protected activity by making his working conditions so intolerable that any reasonable person in situation would have felt compelled resign x Arplicable Law The FLSA prohibits employers from udischarg E ingq in any other manner discriminatg ingq against any employee because such employee has filed any complaint FLSAj.' 29 U.S. ' C. 2l5( a) under related to E the Courts analyze FLsA-retaliation claims under the burden-shifting framework of McDonnell Douclas Corr . v . Green, S.Ct. ( 1973). See Hacan v. Echostar Satellite, L. L.C., 529 F. 617, 624 ( 3d 5th Cir. 2008). Under that framework the employee must first establish a prima facie case of retaliation . offer Id . legitimate , employment action . emp loyee succeeds, the employer must non-retaliatory Id . reason the The burden then shifts back adverse the 7Defendants' Motion for Partial Summary Judgment , Docket Entry l8. 'Plaintiff Jeremy S . Jones' Response to Defendants' Motion for Partial Summary Judgment, Docket Entry No . 21. emp loyee show that genuine issues of material fact exist regarding whether the employerfs proffered reason credence . establish a prima facie case of retaliation, Id . plaintiff must show activity, unworthy that he engaged in a statutorily-p rotected that he experienced a materially adverse injury, and that a causal link exists between the protected activity and the injury. Id. See also Burlinqton Northern & Santa Fe Railwav Co. v. White, 126 S. Ct. 2405, 2409 ( 2006). Application of the Law to the Facts Defendants do dispute statutorily protected conduct . they are entitled that plaintiff engaged Instead, defendants contend that summary ludgment on plaintiff's retaliation claim because plaintiff unab le to make a prima facie showing that he suffered a materially adverse injury . Plaintiff argues response that was constructively discharged defendants' retaliatory actions, and that constructive discharge constitutes a materially adverse injury. 'A ' constructive employment action .' ' 3 69, ( 5th discharge does qualify as Thomas v . Atmos Enercv Corp w 2007) ( citing Harvill, 1522 ( 1994)). adverse Fed .Appx . F.3d at Landqraf v . USI Film Products, 968 F .2d 427, 431 aff 'd , an and Cir. 1992), constructive discharge has occurred when the emp loyee resigns after Athe employer made the employee's working conditions so intolerable that - 8- reasonable employee would feel compelled to resign.f' ' Id. at 377 ( quoting Barrow v . New Orleans Steamship A ssociation, 1994)). uMere harassment, alone, F .3d 292 , insufficient; rather, the plaintiff must show ' aggravating factors' justify departure.' ' Hockman v. Westward Communications, 407 F.3d 317, 2004) ( citing Barrow, dem otion; F. 3d 297). Such factors include salary; reduction responsibilities; ( 5th reduction in job reassignment menial degrading work; reassignment to work under a younger supervisor; badgering , harassment, or humiliation by the employer calcu lated to encourage the emp loyee's resignation ; and offers of early retirement that would make the employee worse off regardless of whether the offer accepted. Id. at 331-332 ( citing Brown v. Kinnev Shoe Corow F.3d 556, 566 Cir.), cert. denied, S. Ct. ( 2001)) In evaluating claim s for constructive discharge , courts exam ine the working environment as a whole; the subjective state of mind of the employee is irrelevant. See Epps v . NCNB Texas, 7 F.3d Cir. 1993). See also Barrow, F.3d at 46 ( 5th ( for constructive discharge claim plaintiff must establish that the resignation was reasonable under the circumstances) Plaintiff argues that he reasonably felt compelled to resign days after he complained of defendants' failure pay overtime because 31. Immediately after E he) complained about the Company's longstanding failure to comply with the FLSA - 9- . . . Mr . Willy made a point to intimidate all other similarly situated employees, in front of g himl, asking each employee whether nthey had any problems' with the ' manner in which Willy compensated them . 32 . A fter he complained about the Company 's failure to pay overtime, Jones was informed that Mr. W illy was uangry' with him and a number of key adm inistrative ' officers actually stopped speaking to Jones entirely, making it next to impossible to perform his job dutiesx In support of these allegations, p laintiff subm its a declaration which he explains: A s a paralegal, it was my duty to gather the facts for each client's case that had been assigned to me . I did this in one of two ways . First, I would sit in with Mr . Willy on the initial client interview , which Mr . Willy would conduct app roximately 90% of the time . If I was somehow unable to sit in on the initial meeting with the client and Mr . W illy, I would review the notes that Mr . W illy took during the course of the initial interview , including the notes on the initial client intake sheet ( hereinafter nintake sheet'), and would then ' follow up with Mr . Willy regarding any questions I had or any exp lanations I needed after reviewing the intake sheet . Once I had an understanding about the particular facts associated with each client, I would then review the intake sheet where Mr . Willy would have written down what legal services he deemed necessary for each particular client . As a paralegal that was new to the area of immigration law , an area with which Mr . Willy was intimately familiar, I fully depended upon receiving guidance and direction from Mr . Willy so that I would know what my role in the case was to be . In other words , I would be given direction by Mr . Willy as to what discrete tasks I was expected, as a paralegal, to handle , what reports to begin filling out, what letters ( any) if needed to be written, what deadlines I face, and , overall, what strategy to engage in to best meet the client's needs. g original Collective Action Comp laint , Docket Entry No . %% 31-32 . A fter I complained to Mr . Willy about the fact that Defendants were not paying me overtime ( which is something I did 50th verbally and in writing . ), Mr . Willy stopped speaking to me . The tim ing between my lodging a complained about Defendants' failure to pay overtime with Mr . Willy and the time Mr . Willy responded to my complaints by completely shutting off a11 job related communications with me was very short, within a day or two of my complaint . After I complained to Mr . Willy , I was told by the office manager, Anu Sinha , and by the office accountant, Matthew Joseph, that my complaints had greatly angered Mr . Willy, and that I should not have complained about Defendants' failure to pay overtime, as, according to Mr . Joseph , ' 'things were going to get much worse around the office .' I was the ' only person that complained to Mr . Willy , and as a result, I was the only emp loyee he stopped speaking to, although in the course of one meeting , he threatened any employee that joined with me in my complaints about failure to pay overtime . M r. Willy also th reatened me with the loss of my job and asked me what my kids would think if I lost my job . Mr. Willy also told me that I was not entitled to overtime, and that even if I was, that 1, as well as all other firm employees, had waived their claim to overtime pay, and then he told us that if we didn't like that arrangement ( regarding not being paid overtime), then we were all free to quit. M r. Willy's refusal to speak with me had not ever occurred prior to the time I complained to him about Defendants' failure to pay overtime . This behavior on the part of Mr . Willy not only prevented me from sitting in on the initial interviews with the clients, it also prevented me from following up on the intake sheet with Mr . Willy as to any questions I had about the meaning and intent of the notes taken by Mr . Willy . This operatèd to deprive me of the most important facts of the cases I was assigned to work on . . . A1l of this behavior on behalf of Mr . Willy effectively left it up to me to determine how to handle each case I worked on . Because I was a paralegal and not an attorney, this put me in the untenable position of being forced to either fail to do my job, which was to work up the files I had been given, or it forced me to work up the files without knowing a11 the facts related to the file or how to handle the file . - 11- . . . I realized that the situation was simp ly impossible, and when I saw that it was not changing, and it appeared that with every complaint I made ab out overtime Mr. Willy was just digging in further, I ultimately concluded that I did not have the experience, training , or ability to read through files that were sometimes inches thick and determine what facts were operative , what facts were relevant, what law applied to particular facts, and what facts required a specific response within a specific period of time . A s such , I felt as if it was not possibl g to perform my job, and e) that the only option then available to me was to resign, which I ultimately didxo Citing Burlington Northern, argue that , 2405, defendants best, the incidents about which plaintiff comp lains constitute usnubbing' that do not rise to any significant injury. ' Burlinqton Northern Sup reme Court emphasized that plaintiff must show that the injury about which he complains objectively material or significant, reiterating that antiretaliation provisions do not create 'a general civility code for ' the American workplace .' ' Id . 2415. Thus, M E aqn employee's decision to report discriminatory behavior cannot immunize that employee from those petty slights take p lace minor annoyances that often work and that a11 employees experience .' Id . ' significance any given The retaliation depends upon the particular circumstances, i. e., ' clontext matters.' Id. Al ' The court evidence from which persuaded that plaintiff has presented reasonable fact-finder could conclude that l Declaration of Jeremy S . Jones, Exhibit A attached to o Plaintiff Jeremy S . Jones' Response to Defendants' Motion for Partial Summary Judgment, Docket Entry No . 21. - 12- after p laintiff complained about the defendants' failure pay overtime the defendants made plaintiff's uworking conditions so intolerable that a reasonab le employee would feel compelled resign .' Barrow , 10 F .3d at 297 . ' De fen dan t s d id plaintiff, reduce his salary, reduce d em o te job responsibilities, reassign him , badger him , harass him , hum iliate him , or offer him early retirement . contained Instead , accepting as true the statements the declaration that p laintiff h as submitted opposition to the defendants' motion for partial summary judgment, the acts that plaintiff contends caused him resign were that Willy stopped speaking to him , threatened him with the loss of his and told him that he was not entitled overtime pay, that even if he was entitled to overtime pay, he -- as well as firm employees he had waived h is claim to overtime p ay, and that not like not being paid overtime he was free this constitute other circuit verbal threats being resign . fired do constructive discharge because threats alone have no consequence . See Breaux v . Citv of Garland, 2O5 F .3d 150, 159-60 Cir.), cert. denied, S. Ct. ( 2000) ( verbal threats termination and criticism do not constitute an adverse emp loyment action); Chandler v. La Ouinta Inns, Inc., 264 Fed . Appx. 422, ( 5th 2008) threat termination does not constitute constructive discharge/) ( ' citing 1560, 1568 ( 11th Cir. 1995)) Harqav v . Citv of Hallandale, Although courts have recognized that a threat of termination can amount constructive discharge , such a threat mu st p lace the emp loyee under duress, leaving him no option resign . See Parker v . Board of Relents of Tulsa Jr . Colleqe, 981 F.2d 1159, 1162 ( 10th g of) whether real alternatives 1992). ' Tlhe assessment *E resignation) were offered gauged by an objective standard rather than by employee's purely subjective evaluation; that the employee may perceive his only option F.3d be resignation irrelevant . ' ' Hargav, 1568 ( quoting Stone v. Universitv of Marvland Medical Svstem Coro w F.2d 1988)). ' Tqhe mere %'l fact that the choice is between comparably unp leasant alternatives does by duress a resignation was induced coercion, hence was involuntary.'' ' Stone, 855 F. at 174). 2d is so because Id . ( quoting fact remains that a plaintiff faced with uninviting alternatives still has a choice . See id. ( nResignations obtained in cases where an employee is faced with unpleasant alternatives are nevertheless voluntary because E plaintiff) could stand pat and fight.r/) ( ' quoting Christie v . United States, 518 F .2d ( . Ct Cl. 1975) The undisputed evidence in this case shows that plaintiff had a choice to stay or Plaintiff asserts the declaration filed resign . opposition the defendants' motion for partial summary judgment that he felt compelled to resign because Willy stopped speaking to him thereby making it impossible to perform - 14- duties of his job as paralegal.l l The court not persuaded that the plaintiff's evidence that Willy stopped speaking to him is su fficient to raise genuine issue of material fact that plaintiff filed trial . support of In the declaration own motion summary judgment, plaintiff stated that he received work assignments from and reported three supervising attorneys, none whom was Willy: As a paralegal, I was responsible for assisting my supervising attorneys with their work. Mervyn Mosbacher, Lisa Okoh-Brown, and Kevin Lear were my supervising attorneys, and they would assign me tasks such as researching various issues, writing legal documents and memoranda, and communicating with the firm 's clients . I reported back to my supervising attorneys on the p rogress of each of these tasksx z Moreover, p laintiff has not presented any evidence that any of three supervising attorneys took any actions that made his working conditions intolerable . Since the declaration in which plaintiff claims that Willy's decision stop speaking him prevented him from performing the duties of his job fails to explain why he did not and/or could not have sought direction from one or more of his three supervising attorneys, the fact that Willy stopped speaking to plaintiff is not evidence from which a reasonable finder of fact could conclude that plaintiff's working conditions were intolerable that a reasonable employee in his position would have l (d lr H Declaration of Jeremy S . Jones, Exhib it A attached Plaintiff's Motion for Summary Judgment, Docket Entry No . 19. - 15- felt compelled to resign . undisputed that plaintiff resigned only a few days after Willy threatened fire him and stopped speaking to him . A reasonable employee would, at the very least , seek to remedy situation with the employer before resigning . See Arvain v . Wal-Mart Stores Tex., L.P., 2008) F.3d 473, 481 ( 5th the constructive discharge context, we have recognized that part obligation not an emp loyee's ob ligation to be reasonable assume the worst, and jump conclusions too fast.' ') The court concludes that the plaintiff has failed raise genuine issue of material fact for trial on his retaliation claim because he has reasonable failed fact-finder present any evidence could conclude he was from which constructively discharged after he complained about the defendants' failure to pay overtime . concludes that undisputed evidence establishes that plaintiff's resignation was voluntary because he had the choice pursuant remain in his position and continue to do his job the direction received from Willy -- but from his supervising attorneys . See Chandler, threat discharge/ '). termination does not See also Harqav, constitute F. 3d obtained in cases where an employee Fed .Appx . 426 constructive 1567 ( nResignations faced with unpleasant alternatives are nevertheless voluntary because the fact remains that plaintiff had a choice .' /) Accordingly, the court concludes - 16- that defendants' motion for partial summary judgment on plaintiff's retaliation claim should be granted . IV . Conclusions and Order reasons exp lained above , Defendants' Motion Partial Summary Judgment ( Docket Entry No. Plaintiff's Motion for GRANTED , and Summary Judgment ( Docket Entry No . 19) DENIED . SIGNED at Houston , Texas, on this the 1st day of March , 2010. f SIM LAKE UN ITED STATES DISTRICT JUDGE
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