Kibodeaux v. A&D Interests, Inc.

• Decision Date: 31 March 2022
• Docket Number: Civil Action 3:20-cv-00008
• Parties: STACEY KIBODEAUX, et al., Plaintiffs. v. A&D INTERESTS, INC. d/b/a HEARTBREAKERS GENTLEMAN'S CLUB, et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

STACEY KIBODEAUX, et al., Plaintiffs. v. A&D INTERESTS, INC. d/b/a HEARTBREAKERS GENTLEMAN'S CLUB, et al., Defendants.

Civil Action No. 3:20-cv-00008

United States District Court, S.D. Texas, Galveston Division

March 31, 2022

OPINION AND ORDER

ANDREW M. EDISON, UNITED STATES MAGISTRATE JUDGE

Before me are two motions: (1) Defendant Peggy Armstrong's Motion for Summary Judgment on Employer Status (“Motion for Summary Judgment”); and (2) Defendants' Partial Motion for Summary Judgment on Plaintiffs' Overtime and Off-the-Clock Claims (“Motion for Partial Summary Judgment”). Dkt. 90 and Dkt. 89. After carefully reviewing the motions, the parties' briefing, and the applicable law, and for the reasons discussed below, both motions are GRANTED.

I. PROCEDURAL HISTORY

Plaintiff Stacey Kibodeaux (“Kibodeaux”) is a former exotic dancer who worked at A&D Interests, Inc. d/b/a/ Heartbreakers Gentlemen's Club (“Heartbreakers”) in Dickinson, Texas in December 2019 and January 2020. During her employment, Kibodeaux claims she was not compensated on an hourly basis and instead, received only tips from Heartbreakers' customers.

In January 2020, Kibodeaux sued Heartbreakers for alleged violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq. on behalf of herself and similarly situated dancers. Since filing suit, three former Heartbreakers' dancers have opted-in as plaintiffs: (1) Hailey Chapman (“Chapman”), who worked there in July 2018; (2) Jean Hoffmeister (“Hoffmeister”), who worked from 2016-2018; and (3) Roxanne Murillo (“Murillo”), who worked at Heartbreakers off and on from 2002-2019. I collectively refer to Kibodeaux and the opt-ins as “Plaintiffs.”

In March 2020, Plaintiffs amended their complaint, adding Heartbreakers' owner, Mike Armstrong (“Mr. Armstrong”), and its secretary/treasurer, Peggy Armstrong (“Ms. Armstrong”), as defendants. I collectively refer to Mr. Armstrong, Ms. Armstrong, and Heartbreakers as “Defendants.” Against all Defendants, Plaintiffs assert causes of action under the FLSA for the deprivation of income and related tipping regulations. Relevant to the underlying motions are Plaintiffs' causes of action for unpaid overtime and unpaid off-the-clock hours worked. Plaintiffs argue Mr. and Ms. Armstrong “were corporate officers with operational control over Heartbreakers . . . and, therefore, were ‘employer(s)' or ‘joint employer(s)' of Plaintiffs along with Heartbreakers.” Dkt. 18 at 8.

In June 2021, Defendants moved for partial summary judgment on Plaintiffs' overtime and off-the-clock claims, arguing that Plaintiffs have insufficient evidence to support either claim. Concurrently, Ms. Armstrong moved for summary judgment, arguing, as a matter of law, that she is not Plaintiffs' “employer” under the FLSA. I address each motion in turn. Because the facts relevant to the disposition of each motion largely do not overlap, I provide a “relevant facts” section for each of my analyses.

II. LEGAL STANDARD

“The court shall grant summary judgment if the movant 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 dispute of material fact is “genuine” if the evidence would allow a reasonable jury to find in favor of the non-movant. See Rodriguez v. Webb Hosp. Corp., 234 F.Supp.3d 834, 837 (S.D. Tex. 2017). The moving party bears the burden of identifying those portions of the record it believes demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). This does not, however, require that the movant negate the elements of the non-movant's case. See Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005).

If the burden of proof at trial lies with the non-moving party, the movant may satisfy its initial burden “by ‘showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case.” Celotex, 477 U.S. at 325. See Nola Spice Designs, L.L.C. v. Haydel Enters., 783 F.3d 527, 536 (5th Cir. 2015) (“Where the non-movant bears the burden of proof at trial, the movant may merely point to the absence of evidence and thereby shift to the non-movant the burden of demonstrating by competent summary judgment proof that there is an issue of material fact warranting trial.” (quotation omitted)). Once the moving party has demonstrated the absence of a material fact issue, the non-moving party must go beyond the pleadings and designate specific facts and evidence in the record and articulate how they support the party's claim(s). See Boudreaux, 402 F.3d at 540; Fed.R.Civ.P. 56(c)(1). “This burden will not be satisfied by some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence.” Boudreaux, 402 F.3d at 540 (quotation omitted). See Brown v. City of Houston, 337 F.3d 539, 541 (5th Cir. 2003) (“Unsubstantiated assertions, improbable inferences, and unsupported speculation are not sufficient to defeat a motion for summary judgment.”).

In deciding a motion for summary judgment, I must “view the evidence and the inferences to be drawn therefrom in the light most favorable to the non-moving party.” Brown, 337 F.3d at 541. I must also resolve factual controversies in favor of the non-moving party. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). However, “where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant, ” I must grant summary judgment for the moving party. Boudreaux, 402 F.3d at 540 (quotation omitted).

III. PEGGY ARMSTRONG'S MOTION FOR SUMMARY JUDGMENT

Ms. Armstrong has moved for summary judgment on claims brought against her in her individual capacity, arguing that she is not Plaintiffs' employer under the FLSA.

A. Relevant Facts

In their sworn declarations, which Plaintiffs submitted as part of their motion for conditional class certification back in May 2020, Plaintiffs all testified that Mr. and Ms. Armstrong, among other things:

• Are the owners, officers, and/or managers of Heartbreakers;

• Executed the policies regarding payment to dancers and management of dancers;

• Acted directly and indirectly on behalf of Heartbreakers and exerted operational control and management control over Heartbreakers, including day-to-day management;

• Controlled the nature of their employment relationship;

• Directed and supervised all employees;

• Hired and fired employees; and • Exercised significant control through written and unwritten policies and procedures.

See Dkt. 34-1.

Since then, the parties have engaged in written and oral discovery. In addition to Plaintiffs' sworn declarations, I have before me their deposition testimony, as well as the deposition testimony of Ms. Armstrong.

1. Peggy Armstrong's Testimony

Ms. Armstrong testified as follows: For 36 years, she has worked as Heartbreakers' secretary and treasurer, where she is primarily responsible for overseeing the club's bookkeeping. See Dkt. 85-16 at 5 (testifying that she “primarily handle[s] the business end of the club as opposed to the operational end”). She has no ownership interest in the club-her husband is Heartbreakers' president and sole owner. See Id. at 4. Although Ms. Armstrong admitted that she would “go down to the . . . first floor . . . from time to time” and “watch [the dancers] on occasion, ” id. at 24, she adamantly denied any operational, managerial, or functional control over Plaintiffs' work as dancers. See Id. at 4 (testifying that Heartbreakers' managers have the authority to hire and fire staff members without consulting with her or her husband); id. at 24 (testifying she never: (i) had the authority to hire or fire dancers; (ii) controlled dancers' working conditions; (iii) told dancers how to perform their job; or (iv) gave a dancer a work schedule); id. at 29 (explaining Mr. Armstrong and Heartbreakers' general manager handled activities on the “floor”-i.e., the performance area).

2. Plaintiffs' Deposition Testimony

Kibodeaux testified she “thinks” she met Ms. Armstrong “maybe once.” Dkt. 82-1 at 162. Similarly Chapman admitted she never had any face-to-face interactions with Ms. Armstrong and that her knowledge of Ms. Armstrong is limited to the fact that she is married to the club's owner. See Dkt. 82-2 at 23-24. Hoffmeister did not even mention Ms. Armstrong during her deposition.^[1] The only Plaintiff who provided ostensibly appreciable testimony regarding Ms. Armstrong's purported influence over the dancers was Murillo, who testified that Ms. Armstrong controlled what dancers wear, “how [they] look, ” and “whether [they are] inactive or not.” Dkt. 82-3 at 24. But when pressed for details, Murillo had difficulty explaining how Ms. Armstrong purportedly exercised this control. The only specific incident Murillo could recall was an occasion where Ms. Armstrong allegedly instructed a floor manager to reprimand Murillo because she “didn't have [her] top off” on stage. Id. at 24-25. Even then, Murillo could not recall when this incident occurred, providing only a ballpark estimate of sometime “before 2017.” Id. at 25-26. Aside from this one example, Murillo generally testified as to her subjective belief that Ms. Armstrong exercised clandestine control over the dancers through Heartbreakers' floor managers. See Id. at 24-26. Once again, however, when pressed for details, Murillo was unable to explain her conviction. Instead, Murillo essentially testified that she believes Ms. Armstrong was pulling strings behind the scenes because Heartbreakers' floor managers were “extra . . . strict” and “on the prowl” when she was...