Elvia Andrade v. Hany Sharaf D/B/A Paul's Donut & Sub Shop ( 2015 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00222-CV
ELVIA ANDRADE APPELLANT
V.
HANY SHARAF D/B/A PAUL’S APPELLEE
DONUT & SUB SHOP
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FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 067-270860-14
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MEMORANDUM OPINION1
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Appellant Elvia Andrade appeals from the trial court’s order granting
summary judgment in favor of Appellee Hany Sharaf d/b/a Paul’s Donut & Sub
Shop (Paul’s Donut & Sub Shop). We affirm.
1
See Tex. R. App. P. 47.4.
Background
From 2001 through 2013, Andrade worked as a cashier and server at
Paul’s Donut & Sub Shop. She claims that from October 30, 2010, through
October 30, 2013, she worked an average of sixty hours per week but was not
paid overtime wages. She sued Paul’s Donut & Sub Shop under the Fair Labor
Standards Act (FLSA) to recover $39,200.22 in unpaid overtime wages. See 29
U.S.C.A. § 207(a)(1) (West 1998).2
Paul’s Donut & Sub Shop filed a motion for summary judgment, claiming
that it was entitled to judgment as a matter of law because it was not subject to
29 U.S.C.A. § 207, which provides in part as follows:
Except as otherwise provided in this section, no 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.
Id. Specifically, Paul’s Donut & Sub Shop argued that it was not engaged in
commerce, was not engaged in the production of goods for commerce, and was
not part of any enterprise engaged in commerce or in the production of goods for
commerce. See id.; see also 29 U.S.C.A § 203(b) (West 1998) (“‘Commerce’
means trade, commerce, transportation, transmission, or communication among
2
Section 216(b) of the FLSA gives state courts jurisdiction to hear cases
involving suits for overtime pay. 29 U.S.C.A. § 216(b) (West 1998).
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the several States or between any State and any place outside thereof.”). Paul’s
Donut & Sub Shop also asserted in its motion that it was entitled to summary
judgment because there was no evidence that it was subject to 29 U.S.C.A.
§ 207.
The trial court granted Paul’s Donut & Sub Shop’s motion without stating
upon which ground or grounds it relied. This appeal followed.
Discussion
In one issue, Andrade argues that the trial court erred by granting Paul’s
Donut & Sub Shop’s motion for summary judgment because her summary-
judgment response and attached evidence established that Paul’s Donut & Sub
Shop was engaged in interstate commerce and therefore subject to the FLSA.
When, as here, a party moves for summary judgment under both rules 166a(c)
and 166a(i), we will first review the trial court’s judgment under the standards of
rule 166a(i). Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). If
the appellant failed to produce more than a scintilla of evidence under that
burden, then there is no need to analyze whether the appellee’s summary-
judgment proof satisfied the less stringent rule 166a(c) burden. Id.
After an adequate time for discovery, the party without the burden of proof
may, without presenting evidence, move for summary judgment on the ground
that there is no evidence to support an essential element of the nonmovant’s
claim or defense. Tex. R. Civ. P. 166a(i). The motion must specifically state the
elements for which there is no evidence. Id.; Timpte Indus., Inc. v. Gish, 286
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S.W.3d 306, 310 (Tex. 2009). The trial court must grant the motion unless the
nonmovant produces summary-judgment evidence that raises a genuine issue of
material fact. See Tex. R. Civ. P. 166a(i) & cmt.; Hamilton v. Wilson, 249 S.W.3d
425, 426 (Tex. 2008).
When reviewing a no-evidence summary judgment, we examine the entire
record in the light most favorable to the nonmovant, indulging every reasonable
inference and resolving any doubts against the motion. Sudan v. Sudan, 199
S.W.3d 291, 292 (Tex. 2006). We review a no-evidence summary judgment for
evidence that would enable reasonable and fair-minded jurors to differ in their
conclusions. Hamilton, 249 S.W.3d at 426 (citing City of Keller v. Wilson, 168
S.W.3d 802, 822 (Tex. 2005)). We credit evidence favorable to the nonmovant if
reasonable jurors could, and we disregard evidence contrary to the nonmovant
unless reasonable jurors could not. Timpte Indus., 286 S.W.3d at 310 (quoting
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006)). If the
nonmovant brings forward more than a scintilla of probative evidence that raises
a genuine issue of material fact, then a no-evidence summary judgment is not
proper. Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009); King Ranch, Inc.
v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003), cert. denied, 541 U.S. 1030
(2004).
To establish a claim for overtime compensation under the FLSA, Andrade
was required to show “individual coverage”—that she was “engaged in
commerce or in the production of goods for commerce,” or “enterprise
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coverage”—that Paul’s Donut & Sub Shop was an “enterprise engaged in
commerce or in the production of goods for commerce.” 29 U.S.C.A. § 207(a)(1).
In her summary-judgment response, Andrade argued that only enterprise
coverage applied and did not contend that any of her summary-judgment
evidence raised a genuine issue of material fact supporting individual coverage
under the FLSA. Therefore, we must determine if Andrade’s summary-judgment
evidence raised a genuine issue of material fact supporting enterprise coverage
under the FLSA.
An “enterprise engaged in commerce or in the production of goods for
commerce” is an enterprise3 (1) that “has employees engaged in commerce or in
the production of goods for commerce, or that has employees handling, selling,
or otherwise working on goods or materials that have been moved in or produced
for commerce by any person” and (2) “whose annual gross volume of sales made
or business done is not less than $500,000 (exclusive of excise taxes at the retail
level that are separately stated).”4 Id. § 203(s)(1)(A) (West 1998). In her affidavit
3
The parties do not dispute that Paul’s Donut & Sub Shop is an enterprise.
See id. § 203(r) (West 1998) (defining enterprise).
4
An “enterprise engaged in commerce or in the production of goods for
commerce” also includes an enterprise that
(B) is engaged in the operation of a hospital, an institution primarily
engaged in the care of the sick, the aged, or the mentally ill or defective
who reside on the premises of such institution, a school for mentally or
physically handicapped or gifted children, a preschool, elementary or
secondary school, or an institution of higher education (regardless of
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filed in support of her summary-judgment response, Andrade stated, “As a
cashier, I personally heard Mr. Sharaf brag about the amount of money he was
making. He stated that the restaurant had revenues over one million dollars and
his sales are much higher.” Because this evidence does not indicate that Paul’s
Donut & Sub Shop’s annual gross volume of sales exceeded the FLSA’s
$500,000 threshold for any of the three years for which she is claiming unpaid
overtime, we conclude it fails to raise a genuine issue of material fact as to
whether Paul’s Donut & Sub Shop was an “enterprise engaged in commerce or
in the production of goods for commerce.” See id. Andrade did not present any
other evidence regarding Paul’s Donut & Sub Shop’s annual gross volume of
sales made or business done. Because Andrade failed to raise a genuine issue
of material fact on an essential element of enterprise coverage under the FLSA,
the trial court did not err by granting Paul’s Donut & Sub Shop’s no-evidence
motion for summary judgment. Having determined that the trial court properly
granted Paul’s Donut & Sub Shop summary judgment on no-evidence grounds,
we need not address whether the trial court erred by granting it summary
judgment on traditional grounds. See Ford Motor Co., 135 S.W.3d at 600; see
also Tex. R. App. P. 47.1. Accordingly, we overrule Andrade’s only issue.
whether or not such hospital, institution, or school is public or private or
operated for profit or not for profit); or
(C) is an activity of a public agency.
Id. § 203(s)(1)(B)–(C) (West 1998). The parties agree that Paul’s Donut & Sub
Shop does not fall within either of these categories.
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Conclusion
Having overruled Andrade’s sole issue, we affirm the trial court’s order
granting Paul’s Donut & Sub Shop’s motion for summary judgment.
/s/ Anne Gardner
ANNE GARDNER
JUSTICE
PANEL: GARDNER, MEIER, and GABRIEL, JJ.
DELIVERED: July 30, 2015
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