Oliver v. Centerpoint Energy, Inc. et al, No. 4:2010cv00189 - Document 14 (S.D. Tex. 2010)
Court Description: MEMORANDUM OPINION AND ORDER granting 7 MOTION for Summary Judgment.(Signed by Judge Sim Lake) Parties notified.(hcarr, )
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIV ISION OLIVER , Plaintiff, CIVIL ACTION NO . H-1O-O189 CENTERPO INT ENERGY , INC . and CENTERPO INT ENERGY SERVICE COMPANY , LLC, Defendants . MEMORANDUM OPINION AND ORDER Plaintiff, Oliver, brings this collective action suit against defendants, Centerpoint Energy, Service Company, and Centerpoint Energy unpaid overtime wages pursuant the Fair Labor Standards Act ( FLSA), 29 U.S. . 5 201, et seG. Pending C before Centerpoint Judgment ( Docket Entry No. Energy's Motion Summary the reasons explained below, Centerpoint Energy's motion for partial summary judgment will be granted , and this action will be dismissed . 1. Standard of Review Summary judgment is authorized if there entitles no genuine dispute about judgment. material facts are ngenuine' ' material fact and the 1aw 56( c). Disputes about the evidence is such that reasonable jury could return verdict Anderson v . Li:ertv Lobbv, Incw the nonmoving party. S.Ct. 2505, 2511 ( 1986). The Supreme Court has interpreted the plain language of Rule 56( c) mandate entry summary judgment uafter adequate time discovery and upon motion, against showing sufficient establish party who fails the existence of an make element essential to that party's case, and on which that party w ill bear Celotex Corr . v . Catrett, 106 S .Ct . 2548, 2552 ( 1986). A party moving Ademonstrate the absence summary judgment nmust genuine issue of material fact,' but need not necate the elements of the nonmovant's case .' Little v . ' Liquid A ir Corp w F .3d 1069, ( quoting Celotex, 1994) ( banc) en 2553-2554). moving party meets this burden, Rule 56( requires the nonmovant to go beyond c) the pleadings and show affidavits, depositions, answers interrogatories, admissions on file, other admissib le evidence that specific facts exist over which there a genuine issue trial. Id. ( citing Celotex, 106 S. Ct. at 2553-2554). In reviewing the evidence uthe favor must draw nonmov ing party, determ inations weigh the only when make credibility may evidence .' ' Plumbin? Products, Inc w controversies are reasonab le inferences in Reeves 2097 , resolved b0th contradictory facts .' Little, ' ( 2000). favor of parties have F .3d at v . Sanderson Factual nonmovant, ubut subm itted evidence II . Undispu ted Facts Centerpoint or its p redecessor entities employed the plaintiff from August 1988, to March 15, 2009 . Since least January 2007, and through his termination in March of 2009, the p laintiff worked rotating schedule as Senior Service Representative . This meant that his regularly scheduled work days differed over three successive weeks . Plaintiff's regular schedule was eight hours five consecutive days day Friday), have two days a day work ( Monday through ( Saturday and Sunday), work eight hours consecutive days ( Monday through following Wednesday), have four days off ( Thursday through Sunday) and then repeat the sequence .l Centerpoint paid the p laintiff on period ending on a Sunday . This meant that plaintiff was paid every other week work performed from the first Monday through the second Sunday of each pay period . Plaintiff's rotating schedule caused the number hours that plaintiff worked any given pay period to vary from other pay periodsx Article 5 of the Collective Bargaining Agreement ( CBA) between Centerpoint Energy predecessors and USW Local 13-227 ' Declaration of Denise Clark-zopfi ( Clark-zopfi Declaration), attached to Centerpoint Energy's Motion for Summary Judgment, Docket Entry No . 7, %% 3-4. See also A ffidavit of Roy Oliver, Exhibit A to Plaintiff's Original Collective Action Complaint , Docket Entry No . 1, % 3; and Plaintiff's Resp onse to Defendants' Motion for Summary Judgment, Docket Entry No . 11, p . 2 . zclark-zopfi Declaration %% 5-6 . - 3- contains provisions regarding Centerpoint emp loyees.? overtime and Section p rem ium CBA provides that nl fqor purposes of computing overtime and premium pay, the workday shall consist and a 24-hour period beginning seven consecutive workdays workweek shall consist beginning m idnight midnight each day CXiYYY *HV Section the CBA guarantees Centerpoint emp loyees scheduled to work eight-hour days overtime pay, for hours worked exc ess per workweek, but also for hours worked in excess 8 hours scheduled workday .s 111 . Analysis Plaintiff seeks to hold defendants liable for violation of the overtime provision of the FLSA, U.S.C. 5 207( a), for failure pay him at one and one-half times his regular rate of pay for hours worked in excess forty hours per week. 3 clark-zopfi Declaration % 3 and Agreement Between Houston Division of Centerpoint Energy Resources Corp . D/B/A Centerpoint Energy Texas Gas Operations and United Steel, Paper and Forestry , Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union and Its Local 13-227, Effective July 1, 2008 Through June 30, 2012 ( CBA), Exhibit A to Clark-zopfi Declaration . I CBA, Exhib it A , Part 1 to Clark-zop fi Declaration, attached to Centerpoint Energy's Motion for Summary Judgment, Docket Entry No . 7 . 5Id . - 4- A. The FLSA Overtime Provision The overtime provision FLSA, U.S. . C 207( a), requires employers to pay one and one-half times the employee's regular rate for a11 hours worked week . Id . order excess prevail claim for unpaid overtime plaintiff must prove by a preponderance the evidence : existence of an employment relationship ; that he was engaged in commerce or employed by an enterp rise engaged defendants failed forty hours Commerce; that pay him overtime required by the FLSA ; and that he is owed the amount claimed by a just and reasonable inference . Id . See also Harvill v . Westward Communications, L. C ., L. F .3d 2005) ( citing Anderson v. Mt. Clemens Potterv Co., 1187 ( 1946), superseded bv statute as stated in IBP, Inc . v . A lvarez, S .Ct . 514, 516 ( OO5)) . 2 B. Application of the Law to the Facts Defendants do not dispute the existence of an employment relationship that the plaintiff was engaged comm erce employed by an enterprise engaged in commerce . Instead, defendants dispute the p laintiff's allegation that they failed overtime required by the FLSA . Harvill, 433 F .3d at Defendants argue that they are entitled because p laintiff was paid him summary judgment least one and one-half times his hours worked in excess of 40 hours per workweek . In Declaration support this argument defendants Denise Clark-zop fi, Area Manager Energy's Gas Operations, South District,6 stubs maintained Centerpoint records p laintiff from December 2006, through his termination of employment on March 5, 2009, and a chart summarizing the plaintiff's December time records 2006, through and paystub s February from 2007 .7 the period Clark-zopfi explains : The interplay between Mr . Oliver's FLSA workweek, rotating work schedu le , and pay period is illustrated by the demonstrative exhibit attached as Exhibit D . Exhibit D contains a true and accurate summary of M r . Oliver's time records and paystubs from the period December 25, 2006 through February 28, 2007 . On the chart, the end of each FLSA workweek is marked in green . The end of each pay period is marked in yellow . Each day on the chart reflects the number of hours that Mr . Oliver worked that day, or was on holiday or vacation . Those numbers come from the time records attached as Exhibit B, which in turn are the basis for the pay totals reflected on the app licable paystubs under Exhibit C . 10. As the records attached under Exhib its B and C demonstrate, at no time did Centerpoint Energy fail to pay Mr . Oliver at or above one-and-one-half times his regular rate of pay for hours worked in excess of 40 in his workweek . In many instances M r. Oliver was actually paid more than what the FLSA requires . As noted above, 6 See Clark-zopfi Declaration , attached to Centerpoint Energy's Motion for Summary Judgment, Docket Entry No . 7 . R Exhibits B-D to Clark-zopfi Declaration , attached to Centerpoint Energy's Motion for Summary Judgment, Docket Entry No . 7. Centerpoint Energy contractually agreed to pay Mr . Oliver time-and-a-half not only for hours worked over 40 in a workweekr but for a11 hours worked over eight in an eight-hour workday . There are many times in which this agreement resulted in Mr . Oliver being paid time-and-a-half for hours worked even though those hours were not in excess of 40 during the workweek . A few examp les occurred during the December 25, 2006 through February 28, 2007 time period, encapsulated on the chart attached as Exhibit D . As the chart and underlying records show , Mr . Oliver worked more than eight hours in a day on December 28, 2006 (9 hours); January 16, 2007 ( hours); January 29, 2007 (10 9 hours); February 17, 2007 ( 1O hours); and February 18, 2007 ( hours). Mr. Oliver was paid 10 time-and-a-half for each of these excess hours, even though in four of those five FLSA workweeks he did not work more than 40 hours. ( The exception was the week ending January 19, 2007 for which Mr . Oliver worked 41 hours and was properly paid one overtime hour.) See the January 7, 2007 paystub, reflecting one hour of overtime paid ( for December 28)7 January 21, 2007 paystub, reflecting one hour of overtime paid ( for January 16)7 February 4, 2007 paystub , reflecting two hours of overtime paid ( for January 29), and the February 18, 2007 paystub, reflecting four hours of overtime paid ( for February 17 and 18). 8 Plaintiff responds that Centerpoint's motion denied because : summary judgment should By requiring Oliver ( and others similarly situated) to work 10 consecutive days ( 8 or more hours per of day) spanning two company-defined workweeks under a collective bargaining agreement ( CBA), Centerpoint has effectively evaded the FLSA . Centerpoint has failed to establish that the CBA provision ( any other provision) setting Saturday or 8 clark-zopfi Declaration , attached to Centerpoint Energy's Motion for Summary Judgment, Docket Entry No . 7, %% 9-11 . as the starting day app lies to O1iver .9 for calculating overtime Plaintiff exp lains that Centerpoint placed me on a staggered work cycle . In some weeks of the cycle, I worked more than 40 hours per week . However, Centerpoint used an eight-hour workday, instead of a forty-hour workweek, to calculate overtime . Thus, Centerpoint paid me overtime for the time that I worked in excess of eight hours per workday but did not pay me overtime for a11 the hours I worked in excess of forty hours per weekxo Plaintiff argues that two fact issues preclude the court from granting the defendants' motion for summary judgment: whether Centerpoint is evading the FLSA b y scheduling ten consecutive work days over two company-defined workweeks; and definition of workweek contained in the CBA app lies whether him . the reasons explained below, the court has failed to raise a genuine issue of m aterial fact for trial . Is Centerpoint Evadin? the FLSA bv Schedulin? Ten Consecutive Work Davs Over Two Comranv-Defined Workweeks? Plaintiff contends that E tlhe issue here is whether Centerpoint's practice of scheduling 10 consecutive work days spanning two company- defined workweeks ( according to Centerpoint, its workweek is Saturday to Friday) was designed to evade the overtime requirements of the FLSA . It is difficult to imagine that Centerpoint has a legitimate business purpose for requiring its employees to work that schedule, in g plaintiff's Response to Defendants' Motion Judgment , Docket Entry No . 11, p . 2 . Summary l Affidavit of Roy O liver, Exhib it A to Plaintiff's Original o collective Action Complaint, Docket Entry No . 1, % 3. - 8- violation of the FLSA. Because the summary judgment record contains no evidence to entitle Centerpoint to summary judgment based on these issues, the motion should be deniedx l The that Congress selected determ ining overtime payments are due under the FLSA whether the uworkweek . ' ' 29 U.s. : 2O7( ( 1 See also 29 C . R. $ 778.602 ( (' c. a) 1). 2 F. a) 'The general overtime pay requirements of the E FLSA) provide for such pay only when the number of hours worked exceeds the standard specified for the workweek . 12 16 , Overniqht Motor Transport Co . v . Missel, 62 ( 1942), sunerseded bv statute as recocnized in Trans World Airlines v. Thurston, (1985) likewise abundantly clear from the words of section 7 that the unit of time under that section within which to distinguish regular from overtime is the week.'). The FLSA does not define nworkweek,' but ' ' regulations promulgated pursuant the FLSA define the term mean seven consecutive twenty-four hour periods: E aqn employee's workweek fixed and regularly recurring period of 168 hours--seven consecutive 24-hour periods . It need not coincide with the calendar week but may begin on any day and at any hour of the day . For purposes of computing pay due under the Fair Labor ll plaintiff's Response to Defendants' Motion Judgment, Docket Entry No . 11, p . 3 . Summary l This section provides that ' el z 'E mployees engaged in interstate commerce . . . ( Except as otherwise provided in this section, no l) employer shall employ any of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce , for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed . '' Standards Act , single workweek may be established for a plant or other establishm ent as a whole or different workweeks may be established for different employees or group s of employees . Once the beginning time of an employee 's workweek is established , it rem ains fixed regardless of the schedule of hours worked by him . The beginning of the workweek may b e changed if the change is intended to be permanent and is not designed to evade the overtime requirements of the Act . 29 C .F .R . 778.105 ( emphasis added). See also Roland Electrical Co. v . Black, 68 S. Ct. F.2d 420-21 1947), cert. denied, ( 1948) ( uthe now well settled construction that the E FLSA) takes as its standard a single workweek consisting of seven consecutive days'); and United States v. Universal C.I. ' T. Credit Corpw F.supp. ( W.D. 1952) ( uthe unit selected for determining whether overtime payments are due , work week'). ' Citing purposes the CBA, Centerpoint argues that uEflor computing overtime and prem ium pay, workday shall consist of a 24-hour period beginning at m idnight each day and the workweek shall consist of seven consecutive workdays beginning at midnight on Friday .'' '3 Plaintiff has not cited and the court has not found any authority for the proposition that an employer can be held liable for violating the FLSA'S overtime requirements scheduling employees work ten consecutive days when those days span more than one workweek, and the employee works no more that 40 hours in any one workweek. Courts that have addressed the issue 1 CBA , Exhibit A to Clark-zop fi Declaration , attached to 3 Centerpoint Energy 's Motion for Summary Judgment , Docket Entry No . 7. - 10- have rejected the plaintiff's argument that this practice violates the FLSA . See Blasdell v . State of New York, 1992 WL 469733, *1-*2 ( D. S. N.Y. September 8, 1992). In Blasdell the court concluded that a regular workweek calculated on a Thursday to Wednesday b asis did not violate the FLSA even though employees were o ften required to work up seven consecutive days before receiving Because the first five days day rotation fell within one workweek, while the sixth and seventh days fell within another workweek, the court held that the plaintiffs were not entitled to any overtime compensation under Davidson Ore Minin? Co., FLSA . See also Sloat v . F. supp . 1010, 1111-12 ( .D. Mich . 1942) W ( rejecting the argument that rotating schedules violates the FLSA). Centerpoint 's practice of rotating the plaintiff's schedule so that he worked ten days in a row , the first five of wh ich belonged to one workweek, and the second five of which belonged to the next workweek , does not change fact that the plaintiff's regular workweek began on the same day of each calendar week and did not change throughout the time issue this action . Because plaintiff has neither argued nor cited any evidence showing that Centerpoint failed excess him overtime any hours worked 40 hours during the Saturday to Friday workweek that used calculate entitlement to overtime pay r or that Centerpoint ev e r changed the beginning time of the plaintiff's workweek for the purpose of evading failed to raise FLSA'S overtime requirements, plaintiff has genuine issue material fact trial that precludes granting defendants' motion summary judgment on plaintiff's claim for overtime pay . Does the CBA app lv to the Plaintiff? Asserting that he non-union employee and that pay period had Monday as the starting day, plaintiff contends that Centerpoint violated the FLSA'S overtime requirements by using the definition nworkweek' contained in ' CBA in stead his pay period for purposes of calculating his entitlement to overtime pay . Plaintiff argues that E wlhether the CBA applies E himq is a material issue of fact that precludes summary judgment. Courts in other circuits use the following four-factor test in determining whether collective bargaining agreement ( CBA) covers non-union members: ( 1) whether the CBA defines employees by job classifications, ( whether the CBA 2) contains a recognition clause designating the union as the exclusive bargaining agent for a11 employees, ( whether the CBA distinguishes between union employees 3) and non-union employees, and ( whether the CBA contains 4) a nunion shop clau se' requiring non-union employee to ' join the union within a stated period Teamster's Local 348 Hea1th Beverage Co., of time. & Welfare Fund 749 F.2d 315, 318 v. Kohn ( 6th Cir. 1984). Centerpoint has failed to show that the CBA , in whole or part, applies to E plaintiffqx4 Plaintiff asserts that times applicable failed submit non-union emp loyee claims alleged any evidence this action ,l but has s contradicting the M plaintiff's Response to Defendants' Motion Judgment, Docket Entry No . 1l, pp . 3-4 . 1 5Id . at 2 ( plaintiffj has been ng the early 199O' ' s.'). - 12- Clark-zop fi for Summary non-union emp loyee since Declaration stating that Oliver's position was union position governed by a longstanding Collective Bargaining Agreement ( UCBA') between ' Assuming that Centerpoint plaintiff had Energy and p resented USW Local ev idence 13-227.'1 /6 cap able of establishing that he was a non-union employee , and that the court would , therefore , be required apply determine whether plaintiff was covered by four-factor test plaintiff has failed either to argue or to cite any evidence capab le of showing that the CBA would not apply to Nor has plaintiff cited any evidence contradicting Clark-zopfi's statement that plaintiff's workweek for FLSA purposes was the workweek described the CBA because Centerpoint applied that workweek to al1 employees of the plaintiff's bargaining unitxR Plaintiff has not cited and the court has not found any authority for the proposition that an emp loyer can be held liable for violating the FLSA'S overtime requirements by using a workweek Mclark-zopfi Declaration, attached to Centerpoint Energy's Motion for Summary Judgment, Docket Entry No . 7, % 3 ( citing CBA, Exhibit A attached thereto, and Appendix A to the CBA listing Senior Service Rep . A on the schedule titled , uclassifications and Hourly Rates of Pay'). ' l ld . 7 See also 5 102 ( of the CBA ( a) uln accordance With the certification of the National Labor Relations Board in Case No . 23RC-3332, the Company recognizes the Union as the exclusive representative of all employees in the following unit for the purposes of collective bargaining : Included : A1l production and maintenance and plant clerical employees of the Houston Division of Centerpoint Energy, Houston Gas employed in the classifications listed in Appendix A.') ' that differs from a pay calculate Period an employee's entitlement to overtime pay . See Black v . Roland Electric Co w F.supp. Md. 1946) ( recognizing period need coincide with other Grounds, 163 F .2d 729 (1948) 68 ng tlhe pay workweek/), modified on ' 1947), cert. denied, 68 S. Ct. Because the regulations promulgated pursuant FLSA define term nworkweek' ' mean fixed and regularly recurring period of 168 hours--seven consecutive 24-hour periods E that) need not coincide with the calendar week but may begin on any day and at any hour of the day,' 29 ' 5 778.105, the court concludes that Centerpoint was free to define the plaintiff's nworkweek' in accord with the CBA regardless of whether plaintiff ' was a union emp loyee . C. Conclusions Because plaintiff has failed to identify a single workweek which the defendants failed to pay him overtime as required by the FLSA, and because plaintiff has failed to cite any evidence capab le of raising a genuine issue of material fact for trial regarding contentions that Centerpoint initiated workweek to evade workweek defined Satu rday FLSA 'S overtime requirements, the CBA not apply him , Friday that the court concludes that the defendants are entitled to summary judgment plaintiff's claim that defendants are liable for violation of the overtime provision the FLSA, U.S.C. 5 207 ( a), failure 'to ' pay Oliver one and one half times his regular rate of pay for '8 hours worked in excess of forty hours per week.'l IV . Conclusions and Order reasons explained above, plaintiff has failed trial. court concludes that raise a genuine issue of material fact Accordingly, Centerpoint Energy's Motion Judgment ( Docket Entry No. for Summary GRANTED , and this action dismissed with prejudice. SIGNED at Houston, Texas, on this 27th day of May , 2010. # SIM LAKE UN ITED STATES DISTR ICT JUDGE l 8plaintiff's Original Collective Action Comp laint, Docket Entry No . 1, 1.
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