Opinion
No. 3-03-CV-1043-M.
August 16, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Defendant The Intercept Group, Inc. has filed a motion for summary judgment in this employment discrimination and retaliation case brought under the Equal Pay Act ("EPA"), 29 U.S.C. § 206(d), the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 215(a), and for quantum meruit. For the reasons stated herein, the motion should be granted.
I.
Plaintiff Tony L. Perkins went to work for defendant at its Dallas processing facility on July 5, 2000. (Def. App. at 2, ¶ 4). He was hired as an hourly, non-exempt employee earning $12.00 per hour. ( Id. at 3, ¶ 5). In July 2001, plaintiff was promoted to Shift Lead and his wage rate was raised to $13.25 per hour. ( Id.). Plaintiff received another raise to $13.65 per hour in July 2002. ( Id.). Shortly before his last pay raise, plaintiff was suspended for one day and placed on probation for dishonesty in violation of company policy. ( Id. at 11-12, ¶ 2). On January 23, 2003, a co-worker found plaintiff sleeping on the job, which constituted grounds for immediate dismissal. ( Id. at 12, ¶ 3). Plaintiff was terminated the next day. ( Id.).
Defendant is a Georgia corporation that provides technology services, such as data processing, check processing and imaging, ATM and debit card processing, and data communications management, to financial institutions. ( See Def. App. at 2, ¶ 2).
On May 16, 2003, plaintiff, appearing pro se, sued defendant in federal district court for overtime compensation under the EPA and the FLSA, retaliation under the FLSA, and quantum meruit. Defendant now moves for summary judgment as to all claims and causes of action. Plaintiff was directed to file a response to the motion by July 22, 2004, but has failed to do so. The court will therefore consider the summary judgment motion without the benefit of a response.
In his original complaint, plaintiff also asserted a claim under Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e, et seq. However, plaintiff's amended complaint, filed October 8, 2003, does not contain a Title VII claim.
II.
Summary judgment is proper when there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A dispute is "genuine" if the issue could be resolved in favor of either party. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Thurman v. Sears, Roebuck Co., 952 F.2d 128, 131 (5th Cir.), cert. denied, 113 S.Ct. 136 (1992). A fact is "material" if it might reasonably affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Matter of Gleasman, 933 F.2d 1277, 1281 (5th Cir. 1991).
A movant who does not have the burden of proof at trial must point to the absence of a genuine fact issue. Duffy v. Leading Edge Products, Inc., 44 F.3d 308, 312 (5th Cir. 1995). The burden then shifts to the non-movant to show that summary judgment is not proper. Duckett v. Cedar Park, 950 F.2d 272, 276 (5th Cir. 1992). The parties may satisfy their respective burdens by tendering depositions, affidavits, and other competent evidence. Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.), cert. denied, 113 S.Ct. 82 (1992). All evidence must be viewed in the light most favorable to the party opposing the motion. Rosado v. Deters, 5 F.3d 119, 123 (5th Cir. 1993). However, conclusory statements, hearsay, and testimony based merely on conjecture or subjective belief are not competent summary judgment evidence. Topalian, 954 F.2d at 1131.
III.
In his amended pro se complaint, plaintiff alleges that he was unfairly compensated for overtime hours while other shift supervisors "were being compensated at a higher rate of pay for the same responsibilities performed at defendants [sic] place of business." (Plf. Am. Compl. at 3, ¶ II). Plaintiff further alleges that he was subjected to a hostile work environment and terminated after he protested the discrepancy in his overtime pay. ( Id. at 4, ¶ IV). Alternatively, plaintiff seeks recovery in quantum meruit for the overtime work he performed on behalf of defendant. ( Id. at 5, ¶ V). In its motion for summary judgment, defendant argues that plaintiff cannot establish the elements of his EPA and FLSA claims and cannot recover in quantum meruit because there was an express contract governing the terms of his compensation. The court will consider these arguments in turn.
Because plaintiff has not responded to the summary judgment motion, the court will accept the evidence submitted by defendant as undisputed. Bookman v. Shubzda, 945 F. Supp. 999, 1002 (N.D. Tex. 1996).
A.
Plaintiff first sues for overtime compensation under the EPA and the FLSA. In order to establish a prima facie case under the EPA, plaintiff must prove that: (1) his employer is subject to the Act; (2) he performed work in a position requiring equal skill, effort and responsibility under similar working conditions as his comparator; and (3) he was paid less than female employees in that position. See 29 U.S.C. § 206(d)(1); Jones v. Flagship International, 793 F.2d 714, 722-23 (5th Cir. 1986), cert. denied, 107 S.Ct. 952 (1987). In order to establish a claim for overtime compensation under the FLSA, plaintiff must: (1) prove that he has performed work for which he was improperly compensated; and (2) produce sufficient evidence to show the amount and extent of the work performed. Friend v. Interior Systems, Inc., 2002 WL 1058210 at *13 (N.D. Tex. May 23, 2002), aff'd, 69 Fed.Appx. 659, 2003 WL 21356005 (5th Cir. May 30, 2003).Here, plaintiff has failed to meet his burden of proof under either statute. The uncontradicted summary judgment evidence shows that plaintiff was paid overtime wages at 1-1/2 times his hourly rate based on time records he submitted to defendant. (Def. App. at 4, ¶ 7). This satisfies the requirements of the FLSA. See 29 U.S.C. § 207(a)(1) ("[N]o 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."). Nor has plaintiff shown that he was treated differently than any other comparator employee with respect to overtime pay. This is fatal to his claim under the EPA. Defendant is entitled to summary judgment as to these claims.
B.
Plaintiff also sues for retaliation under the FLSA. In order to establish a prima facie case of retaliation, plaintiff must show that: (1) he engaged in a protected activity; (2) he was subjected to an adverse employment action; and (3) there was a causal connection between the protected activity and the adverse employment action. Id. § 215(a); see also James v. MedicalControl, Inc., 29 F. Supp.2d 749, 752 (N.D. Tex. 1998), citing Southard v. Texas Board of Criminal Justice, 114 F.3d 539, 554 (5th Cir. 1997). Defendant has submitted evidence showing that plaintiff was disciplined for allowing another employee to clock in for him and fired for sleeping on the job. (Def. App. at 11-12, ¶¶ 2-3). Both actions violate company policy and constitute grounds for immediate dismissal. ( See id. at 17-18). Plaintiff has failed to submit any controverting evidence which suggests that he was suspended or terminated in retaliation for complaining about his overtime compensation. Accordingly, defendant is entitled to summary judgment with respect to this claim.
C.
Alternatively, plaintiff seeks recovery under the doctrine of quantum meruit. Quantum meruit is an equitable theory which permits "a right to recover . . . based upon a promise implied by law to pay for beneficial services rendered and knowingly accepted." Leasehold Expense Recovery, Inc. v. Mothers Work, Inc., 331 F.3d 452, 462 (5th Cir. 2003), quoting Black Lake Pipe Line Co. v. Union Construction Co., Inc., 538 S.W.2d 80, 86 (Tex. 1976). However, quantum meruit relief is only available when there is no express contract covering the services at issue. Id. At his deposition, plaintiff admitted that the work he performed for defendant was covered by a written contract which specified the terms of his compensation. ( See Def. App. at 21-25, 38-42). Plaintiff has failed to allege, much less prove, that he performed any services outside the scope of the contract. Therefore, he cannot recover in quantum meruit.
RECOMMENDATION
Defendant's motion for summary judgment should be granted in its entirety. This case should be dismissed with prejudice.
A copy of this recommendation shall be sent to all counsel and any unrepresented parties. Any party may file objections to this recommendation by August 31, 2004. The failure to file written objections shall bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).