Gellhaus v. Wal–mart Stores Inc.

769 F.Supp.2d 1071

Pam GELLHAUS, Plaintiff,

v.WAL–MART STORES, INC., Defendant.

Civil Action No. 1:10–CV–123.

United States District Court, E.D. Texas.

March 10, 2011.

John Stephen Morgan, Harris, Duesler & Hatfield, LLP, Beaumont, TX, for Plaintiff.Jim E. Cowles, Sim Israeloff, Cowles & Thompson, Dallas, TX, for Defendant.

MEMORANDUM AND ORDER

MARCIA CRONE, District Judge.

Pending before the court is Defendant Wal–Mart Stores, Inc.'s (“Wal–Mart”) Motion for Summary Judgment (# 23), wherein Wal–Mart seeks dismissal of Plaintiff Pam Gellhaus's (“Gellhaus”) Fair Labor Standards Act (“FLSA”) claim. Having considered the pending motion, the submissions of the parties, and the applicable law, the court is of the opinion that Wal–Mart's motion should be granted.

I. Background

Gellhaus is a former employee of Wal–Mart, having worked with the company for approximately nine years. She began in 1994 as an hourly paid associate in one of Wal–Mart's several locations in Louisville, Kentucky, eventually rising to the position of assistant manager in late 2006 after completing twelve weeks of training. In April 2007, Gellhaus relocated to Lumberton, Texas, and began working in Wal–Mart's Port Arthur, Texas, store, where she served as a “front end” assistant manager for approximately three months and, later, assistant manager over fabrics, crafts, housewares, stationery, and home decor.

Shortly after beginning work at the Port Arthur store, Gellhaus's hours increased from those she was required to work in Louisville. While the actual amount of the increase is disputed by the parties, Gellhaus routinely worked anywhere from 50 to 70 hours per week, as opposed to the 45 hours she worked per week in Louisville. She also often worked during her scheduled days off. Gellhaus complained both to her store manager, Darlene Sutton Quirk (“Quirk”), and Wal–Mart regional and district management about the increase in hours, as well as the length of her commute to work.¹ Nonetheless, she never asserted that she was entitled to overtime pay or improperly classified as exempt from overtime.

While employed as an assistant manager, Gellhaus's job duties consisted of supervising and disciplining up to 100 hourly employees; ensuring effective merchandising operations; walking her departments to identify necessary work; assigning and delegating tasks; guaranteeing quality control; and evaluating employee performance. Gellhaus also regularly performed manual labor alongside her subordinates, including unloading vendor trucks and restocking shelves. For these duties, Gellhaus was paid an annual salary of $38,500.

Frustrated with her schedule and the length of her commute, Gellhaus resigned at the end of her shift on or about September 13, 2007. She filed suit against Wal–Mart on July 22, 2009, on behalf of herself and those similarly situated, alleging that she was a non-exempt employee and, therefore, should have received overtime pay while employed by Wal–Mart. Wal–Mart filed the instant motion for summary judgment on December 6, 2010, contending that it is entitled to judgment as a matter of law because Gellhaus was exempt from overtime as an executive and/or administrative employee. Alternatively, Wal–Mart argues that Gellhaus failed to prove her damages with definite and certain evidence.

II. Analysis

As a preliminary matter, Wal–Mart argues that the court should deny Gellhaus's request to certify a collective action on the basis that she failed to file a timely motion for certification. Gellhaus responds that she no longer wishes to pursue a collective action and stipulates to the dismissal of her class certification claim. Accordingly, Gellhaus's class certification claim is dismissed, and Wal–Mart's request is denied as moot.

A. Summary Judgment Standard

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment “should be rendered 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(c)(2). The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, admissions on file, and 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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); QBE Ins. Corp. v. Brown & Mitchell, Inc., 591 F.3d 439, 442 (5th Cir.2009); Warfield v. Byron, 436 F.3d 551, 557 (5th Cir.2006); Lincoln Gen. Ins. Co. v. Reyna, 401 F.3d 347, 349 (5th Cir.2005). Where a defendant moves for summary judgment on the basis of an affirmative defense and, thus, bears the ultimate burden of persuasion, “evidence must be adduced supporting each element of the defense and demonstrating the lack of any genuine issue of material fact with regard thereto.” Terrebonne Parish Sch. Bd. v. Mobil Oil Corp., 310 F.3d 870, 877 (5th Cir.2002); see Exxon Corp. v. Oxxford Clothes, Inc., 109 F.3d 1070, 1074 (5th Cir.), cert. denied, 522 U.S. 915, 118 S.Ct. 299, 139 L.Ed.2d 231 (1997); Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir.1986). To warrant judgment in its favor, the movant “ ‘ “must establish beyond peradventure all of the essential elements of the defense.” ’ ” Martin v. Alamo Cmty. Coll. Dist., 353 F.3d 409, 412 (5th Cir.2003) (emphasis in original) (quoting Chaplin v. NationsCredit Corp., 307 F.3d 368, 372 (5th Cir.2002) (quoting Fontenot, 780 F.2d at 1194)); accord Addicks Servs., Inc. v. GGP–Bridgeland, LP, 596 F.3d 286, 293 (5th Cir.2010).

“A fact is material only if its resolution would affect the outcome of the action....” Wiley v. State Farm Fire & Cas. Co., 585 F.3d 206, 210 (5th Cir.2009); accord Cooper Tire & Rubber Co. v. Farese, 423 F.3d 446, 454 (5th Cir.2005); Harken Exploration Co. v. Sphere Drake Ins. PLC, 261 F.3d 466, 471 (5th Cir.2001). “Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “An issue is ‘genuine’ if it is real and substantial, as opposed to merely formal, pretended, or a sham.” Bazan ex rel. Bazan v. Hidalgo Cnty., 246 F.3d 481, 489 (5th Cir.2001) (emphasis in original). Thus, a genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505; accord Bayle v. Allstate Ins. Co., 615 F.3d 350, 355 (5th Cir.2010); Wiley, 585 F.3d at 210; EMCASCO Ins. Co. v. Am. Int'l Specialty Lines Ins. Co., 438 F.3d 519, 523 (5th Cir.2006); Cooper Tire & Rubber Co., 423 F.3d at 454. The moving party, however, need not negate the elements of the nonmovant's case. See Bayle, 615 F.3d at 355; Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir.2005) (citing Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994)); Millennium Petrochemicals, Inc. v. Brown & Root Holdings, Inc., 390 F.3d 336, 339 (5th Cir.2004).

Once a proper motion has been made, the nonmoving party may not rest upon mere allegations or denials in the pleadings but must present affirmative evidence, setting forth specific facts, to show the existence of a genuine issue for trial. Celotex Corp., 477 U.S. at 322 n. 3, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 56(e)); Anderson, 477 U.S. at 256, 106 S.Ct. 2505; Bayle, 615 F.3d at 355; EMCASCO Ins. Co., 438 F.3d at 523; Smith ex rel. Estate of Smith v. United States, 391 F.3d 621, 625 (5th Cir.2004) (“ Estate of Smith ”). “[T]he court must review the record ‘taken as a whole.’ ” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)); see Riverwood Int'l Corp. v. Emp'rs Ins. of Wausau, 420 F.3d 378, 382 (5th Cir.2005). All the evidence must be construed in the light most favorable to the nonmoving party, and the court will not weigh the evidence or evaluate its credibility. Reeves, 530 U.S. at 150, 120 S.Ct. 2097; EEOC v. Chevron Phillips Chem. Co., LP, 570 F.3d 606, 615 (5th Cir.2009); Lincoln Gen. Ins. Co., 401 F.3d at 350; Estate of Smith, 391 F.3d at 624; Brown v. City of Houston, 337 F.3d 539, 541 (5th Cir.2003). The evidence of the nonmovant is to be believed, with all justifiable inferences drawn and all reasonable doubts resolved in her favor. Groh v. Ramirez, 540 U.S. 551, 562, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004) (citing Anderson, 477 U.S. at 255, 106 S.Ct. 2505); Tradewinds Envtl. Restoration, Inc. v. St. Tammany Park, LLC, 578 F.3d 255, 258 (5th Cir.2009); Shields v. Twiss, 389 F.3d 142, 150 (5th Cir.2004); Martin, 353 F.3d at 412. The evidence is construed “ ‘in favor of the nonmoving party, but only where there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts.’ ” Boudreaux, 402 F.3d at 540 (quoting Little, 37 F.3d at 1075).

Nevertheless, “only reasonable inferences in favor of the nonmoving party can be drawn from the evidence.” Mills v. Warner–Lambert Co., 581 F.Supp.2d 772, 779 (E.D.Tex.2008) (citing Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 469 n. 14, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992)). “If the [nonmoving party's] theory is ... senseless, no reasonable jury could find in its favor, and summary judgment should be granted.” Eastman Kodak Co., 504 U.S. at 468–69, 112 S.Ct. 2072; accord Shelter Mut. Ins. Co. v. Simmons, 543 F.Supp.2d 582, 584–85 (S.D.Miss.), aff'd, 293 Fed.Appx. 273 (5th Cir.2008). The nonmovant's burden is not satisfied by “ ‘some metaphysical doubt as to the material facts,’ by ‘conclusory allegations,’ by ‘unsubstantiated assertions,’ ” by speculation, by the mere existence of some...