Prejean v. Satellite Country Inc

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAFAYETTE DIVISION

CHRISTOPHER PREJEAN, CIVIL ACTION NO. 17-1170

on behalf of Himself and Other

Persons Similarly Situated

VERSUS JUDGE TERRY A. DOUGHTY

SATELLITE COUNTRY, INC., MAG. JUDGE WHITEHURST

LYNN JENKINS & PAMELA MCCUE

RULING

Pending before the Court is a Motion to Dismiss Claims of 1099 Opt-Ins Based Upon

Prescription of the Statute of Limitations [Doc. No. 121] filed by Defendants. Plaintiffs filed a

Memorandum in Opposition to the motion [Doc. No. 131]. Defendants filed a reply. [Doc. No.

142].

For the following reasons, Defendants’ motion is GRANTED IN PART and DENIED IN

PART.

I. RELEVANT FACTS

On September 14, 2017, Christopher Prejean, on behalf of himself and all others similarly

situated, filed a Collective Action Complaint against the Defendants, Satellite Country, Inc.,

Pamela McCue, and Lynn Jenkins, alleging violations of provisions of the Fair Labor Standards

Act (hereinafter “FLSA”) for alleged failure to pay overtime wages. On April 17, 2018, this Court

conditionally certified this matter as a Collective Action, and approximately fifty-five (55)

Plaintiffs have joined the litigation.

II. LAW AND ANALYSIS

A. Standard of Review

Although Defendants style their motion as “to dismiss,” it is actually a motion for

summary judgment which requires the Court to consider documents outside the pleadings. See

FED. R. CIV. P. 12(d).

Summary judgment is appropriate when the evidence before a court shows “that there is

no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). A fact is “material” if proof of its existence or nonexistence would

affect the outcome of the lawsuit under applicable law in the case. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is “genuine” if the evidence is

such that a reasonable fact finder could render a verdict for the nonmoving party. Id.

“[A] party seeking summary judgment always bears the initial responsibility of

informing the district court of the basis for its motion, and identifying those portions of ‘the

pleadings, depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.”

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Anderson, 477 U.S. at 247). “The

moving party may meet its burden to demonstrate the absence of a genuine issue of material fact

by pointing out that the record contains no support for the non-moving party’s claim.” Stahl v.

Novartis Pharm. Corp., 283 F.3d 254, 263 (5th Cir. 2002). Thereafter, if the non-movant is

unable to identify anything in the record to support its claim, summary judgment is appropriate.

Id. “The court need consider only the cited materials, but it may consider other materials in the

record.” FED. R. CIV. P. 56(c)(3).

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In evaluating a motion for summary judgment, courts “may not make credibility

determinations or weigh the evidence” and “must resolve all ambiguities and draw all

permissible inferences in favor of the non-moving party.” Total E & P USA Inc. v. Kerr–

McGee Oil and Gas Corp., 719 F.3d 424, 434 (5th Cir. 2013) (citations omitted). While courts

will “resolve factual controversies in favor of the nonmoving party,” an actual controversy exists

only “when both parties have submitted evidence of contradictory facts.” Little v. Liquid Air.

Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). To rebut a properly supported motion for summary

judgment, the opposing party must show, with “significant probative evidence,” that a genuine

issue of material fact exists. Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir.

2000) (emphasis added). “‘If the evidence is merely colorable, or is not significantly probative,’

summary judgment is appropriate.” Cutting Underwater Tech. USA, Inc. v. Eni U.S. Operating

Co., 671 F.3d 512, 517 (5th Cir. 2012) (quoting Anderson, 477 U.S. at 248).

Relatedly, there can be no genuine dispute as to a material fact when a party fails “to make

a showing sufficient to establish the existence of an element essential to that party’s case, and on

which that party will bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322-23. This

is true “since a complete failure of proof concerning an essential element of the nonmoving party’s

case necessarily renders all other facts immaterial.” Id. at 323.

B. FLSA

Plaintiffs seek damages for unpaid compensation under the FLSA. Defendants move the

Court to determine as a matter of law to address two issues: (1) that the claims of five purported

Plaintiffs who performed work more than three years ago are time-barred and (2) that claims of

seventeen other Plaintiffs who performed work more than two years ago are also time-barred

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unless Plaintiffs prove at trial that Defendants’ violations of the FLSA were willful.

The FLSA mandates that “no employer shall employ any of his employees . . . 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.” 29 U.S.C. § 207(a)(1). A two-year statute of

limitations applies to claims under the statute unless Defendants’ violations are determined to be

willful, in which case a three-year statute of limitations applies. 29 U.S.C. § 255(a). The

Supreme Court has explained the “standard of willfulness” necessary for the three-year statute of

limitations to apply. See McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133-35 (1988). A

plaintiff bears the burden of proving a willful violation of the statute. Id. at 135. Plaintiffs must

establish that “the employer either knew or showed reckless disregard for the matter of whether

its conduct was prohibited by the statute.” Id. at 133; see also Singer v. City of Waco, 324 F.3d

813, 821 (5th Cir. 2003) (same). Whether the two-year or three-year statute of limitations is

applicable, the claim does not “commence” for an opt-in plaintiff in a collective action until the

individual files with the court a written consent to join the collective action. 29 U.S.C. § 256(b);

see also Atkins v. General Motors Corp., 701 F.2d 1124, 1130 n. 5(5th Cir. 1983) (Section 256

requires collective action plaintiffs “to opt in, and limitations runs from the opt-in date. We

cannot alter the express terms of the statute.”).

1. Plaintiffs Outside the Three-Year Statute of Limitations

First, Defendants move the Court to dismiss the claims of five (5) Plaintiffs who have not

performed work through Satellite Country for more than three years prior to signing of a written

consent to join this lawsuit. Specifically, Defendants present evidence regarding these

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Plaintiffs:

1. Anden Davenport opted into this collective action on July 9, 2018, and has not

performed any satellite technician work orders through Satellite Country since July 5,

2015.

2. Seth Brashear opted into this collective action on May 30, 2018, and has not

performed any satellite technician work orders through Satellite Country since May

17, 2015.

3. Fernando Sampson opted into this collective action on July 23, 2018, and has not

performed any satellite technician work orders through Satellite Country since July

10, 2015.

4. Chad Blanchard opted into this collective action on July 20, 2018, and has not

performed any satellite technician work orders through Satellite Country ever.

5. Adam St. Romain allegedly opted into this collective action on June 27, 2018, and

has not performed any satellite technician work orders through Satellite Country since

May 8, 2015.

[Doc. Nos. 121-1; 121-3, Declaration of Deborah Fivel].

Plaintiffs respond that the declaration of Deborah Fivel (“Fivel”) is “self-serving,” that

she was not previously identified as a witness, and Defendants failed to support their motion with

the underlying documents Fivel reviewed.

In their reply, Defendants point out that Plaintiffs have been provided with the dates of

opt-in Plaintiffs who performed work for Satellite Country, they have received exit forms

“memorializing the termination of the contract between Satellite Country and their client,” and

they have been provided contractor payment records. [Doc. No. 142, p. 1]. Additionally,

Defendants provided the summary of dates each Plaintiff worked and copies of the exit forms for

all but one of the identified Plaintiffs, Chad Blanchard, because he never performed work for

Satellite Country. [Doc. No. 142, Exhs. A-E].

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While Plaintiffs object to the “self-serving” nature of Fivel’s affidavit, they have offered

no evidence that she is unqualified to provide the declaration or that the dates and information

provided are incorrect. Having reviewed the undisputed evidence in this case, the Court finds

that Defendants have established that the five (5) identified opt-in Plaintiffs have not performed

work for Satellite Country within three (3) years prior to the date they provided written consent

to join this lawsuit, and, therefore, their claims are untimely. Accordingly, Defendants’ motion

is GRANTED, and the claims of opt-in Plaintiffs Anden Davenport, Seth Brashear, Fernando

Sampson, Chad Blanchard, and Adam St. Romain are DISMISSED WITH PREJUDICE.

2. Opt-in Plaintiffs if There is a Willfulness Finding

Defendants also move for a preliminary ruling against seventeen (17) other opt-in

Plaintiffs who last performed work more than two years prior to signing a written consent, but

within three years prior to signing a written consent. They argue that the Court should rule, as a

matter of law, that these Plaintiffs are only permitted to recover if it is proven at trial that

Defendants acted willfully, as defined by the FLSA.

Plaintiffs respond that any such ruling is premature at this time. Additionally, Plaintiffs

point to evidence that they contend support a finding of willfulness on the part of Defendants.

In particular, they point to a 2009 Department of Labor (“DOL”) investigation and to deposition

testimony of Defendant Lynn Jenkins, which they contend is inconsistent with the DOL findings.

First, Defendants do not seek summary judgment on the issue of willfulness. That issue

is reserved for trial. Thus, to the extent that Plaintiffs contend that they have raised a genuine

issue of material fact for trial that Defendants acted willfully, there is no dispute.

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However, Defendants do move the Court for a preliminary determination. The relief

sought by Defendants is not entirely clear, and it appears from the title of the motion that

Defendants seek “dismissal” of the claims of seventeen (17) opt-in Plaintiffs whose written

consent was filed more than two years but less than three years since they last performed work

for Satellite Country. To this extent, Defendants’ motion is DENIED. Other than the five (5)

Plaintiffs whose claims have been dismissed, the Court finds that the remaining opt-in Plaintiffs

may proceed to trial.

On review of the substantive arguments and evidence, Defendants actually move the

Court for a preliminary determination that there is no genuine issue of material fact for trial that

the seventeen (17) opt-in Plaintiffs identified by Defendants have not performed work for

Satellite Country within two years prior to their filing of written consents with the Court. To that

extent, the Court finds that they are entitled to relief. Defendants presented evidence through

the Fivel Declaration, [Doc. No. 121-3], and supporting documentation [Doc. Nos. 142-1] that

the following seventeen (17) Plaintiffs had not worked work for Satellite Country more than two

years but less than three years before they filed their written consent to join the collective action:

1. Charles Bailey opted into this collective action on May 28, 2018, and has not

performed any satellite technician work orders through Satellite Country since March

2, 2016.

2. Sonya Chapman opted into this collective action on May 30, 2018, and has not

performed any satellite technician work orders through Satellite Country since June

20, 2015.

3. Joseph Hensley, IV, opted into this collective action on May 30, 2018, and has not

performed any satellite technician work orders through Satellite Country since

November 17, 2015.

4. Jackson Lucius opted into this collective action on June 4, 2018, and has not

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performed any satellite technician work orders through Satellite Country since

October 25, 2015.

5. Drew Brown opted into this collective action on June 4, 2018, and has not performed

any satellite technician work orders through Satellite Country since November 6,

2015.

6. Brian Arnold opted into this collective action on June 4, 2018, and has not performed

any satellite technician work orders through Satellite Country since March 20, 2016.

7. Wendell Jordan opted into this collective action on June 4, 2018, and has not

performed any satellite technician work orders through Satellite Country since

January 26, 2016.

8. Jeremy Gradney opted into this collective action on June 4, 2018, and has not

performed any satellite technician work orders through Satellite Country since June

20, 2015.

9. Garfield Wright opted into this collective action on June 4, 2018, and has not

performed any satellite technician work orders through Satellite Country since

February 18, 2016.

10. Todd Savoy opted into this collective action on June 4, 2018, and has not performed

any satellite technician work orders through Satellite Country since July 1, 2015.

11. Danniel Gan opted into this collective action on July 9, 2018, and has not performed

any satellite technician work orders through Satellite Country since April 1, 2016.

12. Samuel Greene opted into this collective action on July 9, 2018, and has not

performed any satellite technician work orders through Satellite Country since April

18, 2016.

13. J. Norris Carter opted into this collective action on July 16, 2018, and has not

performed any satellite technician work orders through Satellite Country since

February 8, 2016.

14. Bryan Fisher opted into this collective action on July 16, 2018, and has not performed

any satellite technician work orders through Satellite Country since March 10, 2016.

15. Morgan Ross opted into this collective action on July 16, 2018, and has not

performed any satellite technician work orders through Satellite Country since

December 26, 2015.

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16. Tevin Doucette opted into this collective action on July 23, 2018, and has not

performed any satellite technician work orders through Satellite Country since April

28, 2016.

17. Martin Salavec opted into this collective action on July 23, 2018, and has not

performed any satellite technician work orders through Satellite Country since

December 26, 2015.

[Doc. Nos. 121-1; 121-3, Fivel Declaration; 142-1].

While Plaintiffs offered a blanket denial of Defendants’ statement of undisputed facts,

they have failed to raise a genuine issue of material fact for trial that these seventeen (17) opt-in

Plaintiffs performed work within the two years prior to their filing a written consent with the

Court. Blanket denials and calling a declaration “self-serving” are insufficient to contest the

evidence. A declaration always “serves” the party by whom it is offered; the question is

whether it also provides the Court with evidence upon which it may properly rely. The

declaration in this case identifies Fivel as the Manager of Administrative Operations for Satellite

Country, provides that she has been employed with the company since January 2010, provides

that she is familiar with the record keeping and administration in her position, and provides that

she reviewed company documents kept in the regular course of business. Thus, the Court may

properly rely on Fivel’s declaration and the documents she cites.

In response, Plaintiffs denied the facts were undisputed, but failed to present any

documents, affidavits, declarations, deposition testimony, or other evidence to actually dispute

Defendants’ evidence. Accordingly, Defendants are entitled to a determination that opt-in

Plaintiffs Charles Bailey, Sonya Chapman, Joseph Hensley, IV, Jackson Lucius, Drew Brown,

Brian Arnold, Wendell Jordan, Jeremy Gradney, Garfield Wright, Todd Savoy, Danniel Gan,

Samuel Greene, J. Norris Carter, Bryan Fisher, Morgan Ross, Tevin Doucette, and Martin

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Salavec did not perform any work for Satellite Country within two years of the date their written

consents were filed with the Court. Therefore, they may only recover damages in this matter if

Defendants are determined to have committed willful violations of the FLSA.!

Wl. CONCLUSION

For the reasons set forth above, Defendants’ Motion to Dismiss Claims of 1099 Opt-Ins

Based Upon Prescription of the Statute of Limitations [Doc. No. 121], which was construed by the

Court as a motion for summary judgment, is GRANTED IN PART and DENIED IN PART. To

the extent that Defendants move for summary judgment on the claims of opt-in Plaintiffs Anden

Davenport, Seth Brashear, Fernando Sampson, Chad Blanchard, and Adam St. Romain, the motion

is GRANTED, and the claims of those Plaintiffs are DISMISSED WITH PREJUDICE. To the

extent that Defendants move for a determination on summary judgment that opt-in Plaintiffs

Charles Bailey, Sonya Chapman, Joseph Hensley, IV, Jackson Lucius, Drew Brown, Brian Arnold,

Wendell Jordan, Jeremy Gradney, Garfield Wright, Todd Savoy, Danniel Gan, Samuel Greene, J.

Norris Carter, Bryan Fisher, Morgan Ross, Tevin Doucette, and Martin Salavec did not perform

any work for Satellite Country within two years of the date their written consents were filed with

the Court, the motion is GRANTED. At trial, they may recover damages only if Defendants are

determined to have committed willful violations of the FLSA. The motion is otherwise DENIED.

MONROE, LOUISIANA this 2‘? day of October, 2019.

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Apt trial, if the jury determines that Defendants did not willfully violate the FLSA, then the Court will

dismiss the claims of these opt-in Plaintiffs.

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