Badillo-Rubio v. RF Constr.

• Decision Date: 17 March 2022
• Docket Number: Civil Action 18-1092-JWD-RLB
• Court: U.S. District Court — Middle District of Louisiana
• Parties: NESTOR BADILLO-RUBIO v. RF CONSTRUCTION, LLC, ET AL.

NESTOR BADILLO-RUBIO v. RF CONSTRUCTION, LLC, ET AL.

Civil Action No. 18-1092-JWD-RLB

United States District Court, M.D. Louisiana

March 17, 2022

FINDINGS OF FACT AND CONCLUSIONS OF LAW

JOHN W. DEGRAVELLES UNITED STATES DISTRICT JUDGE

I. Introduction, Background and Summary of Parties' Positions

1. Plaintiff Nestor Badillo-Rubio (“Plaintiff” or “Badillo-Rubio”) brings this action against Defendants RF Construction, LLC (“RF” or “RF Construction”) and Caronda Ford (“Ford”) (collectively, “Defendants”) under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”).^[1]

2. At all times pertinent hereto, including the year 2018 Plaintiff worked as a concrete/cement finisher. (Doc. 79, Tr. at 9.)

3. At all times pertinent hereto, including the year 2018, RF Construction was in the business of pouring and finishing concrete. (Id. at 73.)

4. Plaintiff claims that RF Construction was a covered “enterprise” for purposes of the FLSA, (Doc. 80 at 10-11, ¶¶ 44-48), for whom he worked as an employee, (id. at 2-3, ¶¶ 4-9).

5. It is stipulated that “RF Construction, LLC paid [Plaintiff] $200 per day for his labor.” (Doc. 57 at 2; see also Doc. 80 at 2, ¶ 2; Doc. 81 at 3 ¶ 25.)

6. It is stipulated that “Caronda Ford is a managing member of RF Construction, LLC.” (Id.; see also Doc. 80 at 2, ¶ 1; Doc. 81 at 3, ¶ 24.)

7. It is stipulated that “RF Construction, LLC had gross revenue of $500, 000.00 or more in 2018.” (Id.; see also Doc. 80 at 2, ¶ 3; Doc. 81 at 3, ¶ 26.)

8. Plaintiff claims that, in violation of the FLSA, Defendants failed to pay him overtime wages entitling him to $2, 602.08 plus liquidated damages, attorneys fees and costs. (Doc. 80 at 13-14, ¶¶ 57-58.)

9. Plaintiff claims that Ford, as the sole managing member of RF was, along with RF, a joint employer of Plaintiff and jointly and severally liable for wages, liquidated damages, attorney's fees and costs. (Id. at 14-16, ¶¶ 59-70.)

10. Plaintiff claims that a suit by RF Construction against Plaintiff in Baton Rouge City Court for repayment of a loan supposedly made to Plaintiff in lieu of workers' compensation benefits was in violation of FLSA's anti-retaliation provision entitling Plaintiff to damages for mental and emotional worry. (Id. at 17-19, ¶¶ 75-84.)

11. Defendants claim that RF Construction was and is not an “enterprise” covered by the FLSA (Doc. 81 at 11-13, ¶¶ 96-108) and Plaintiff was an independent contractor, not an employee entitled to benefits of the FLSA (id. at 5-11, ¶¶ 18-95). Therefore, Defendants owe nothing to Plaintiff.

12. Defendants argue that certain of Plaintiff's claims are time-barred. (Id. at 4-5, ¶¶ 34-37.)

13. Defendants deny the suit brought by them in Baton Rouge City Court was in retaliation for Plaintiff's FLSA suit but rather was for the repayment of a loan made to help Plaintiff after he was injured and has merit. (Id. at 13-15, ¶¶ 109-129.)

14. Trial began on February 25, 2021 by Zoom but because of technical problems, the trial was continued and rescheduled to resume in court on June 16, 2021. (Doc. 74.)

15. At the trial, the following witnesses testified: Nestor Badillo Rubio, Caronda Ford, Monica Alcerro, and Jorge Castillo. (Doc. 79.)

16. Following the in-court trial of June 16, 2021, a transcript of the trial was filed into the record on August 10, 2021. (Id.) Plaintiff and Defendants filed Proposed Findings of Fact and Conclusions of Law (Docs. 80 and 81) on August 23 and 24, 2021 respectively.

17. All findings of fact contained herein that are more appropriately considered conclusions of law are to be so deemed. Likewise, any conclusion of law more appropriately considered a finding of fact is to be so classified.

II. Issues

18. The Court must resolve the following issues:

a. Was RF Construction a covered enterprise for purposes of the FLSA?

b. For purposes of the FLSA, was Plaintiff an employee or independent contractor of RF Construction?

c. Are all or some of Plaintiff's claims time-barred?

d. If an employee of RF, what sums for overtime wages, if any, are owed to Plaintiff?

i. What records were kept by each party?

ii. What were Plaintiff's hours worked for RF Construction? Specifically, how many hours did he work from January 27, 2018 to April 14, 2018; May 11, 2018, and September 22, 2018 to October 6, 2018?

e. Is Ford a joint employer of Plaintiff and therefore jointly and severally liable with RF Construction for Plaintiff's claimed damages? f. Is Plaintiff entitled to liquidated damages from RF and/or Ford, or did Defendant(s) act reasonably and in good faith (in which case, liquidated damages would not be due)?

g. Is Plaintiff entitled to attorney's fees?

h. Was RF Construction and Ford's suit against Plaintiff for repayment of a loan Plaintiff made in retaliation for Plaintiff's FLSA suit against RF entitling Plaintiff to damages and, if so, what damages were suffered?^[2]

III. Findings of Fact

19. Plaintiff is not a native English speaker and testified through an interpreter. (Doc. 79, Tr. at 3.) He has an elementary school level of education. (Id. at 12.) The Court found Plaintiff to be a credible witness.

20. Plaintiff described his profession generally as “construction”, (id. at 8-9), but more specifically, as a “cement finisher or concrete finisher”, (id. at 9).

21. He testified that his concrete finishing work involved constructing the forms into which the cement or concrete is poured, assisting in the pouring of the concrete, and once poured, smoothing it. (Id. at 10-11.)

22. Both Plaintiff and Defendants characterize the nature of Plaintiff's work as “labor”. It is stipulated that “RF Construction, LLC paid [Plaintiff] $200 per day for his labor.” (Doc. 57 at 2; see also Doc. 80 at 2, ¶ 2; Doc. 81 at 3, ¶ 25; Doc. 81 at 6, ¶ 49 (“Furthermore, Mr. Badillo-Rubio was simply a day laborer hired at $200 per day on an as needed basis.”); Doc. 81 at ¶ 48 (RF “only provided labor” for the jobs).)

23. Although there was a modest dispute as to which tools were provided by RF and which were provided by Plaintiff, the parties were largely in agreement. Plaintiff argues that

RF Construction LLC purchased and/or provided most tools, equipment and materials [for each job], including, but not limited to table saws, building materials (cement, wood, and nails), specialized hand tools such as trowels and pneumatic nail guns, and other equipment such as Bobcats and cement pump trucks. Additionally, RF Construction, LLC provided a box trailer that contained a significant portion of the tools and equipment for each project.

(Doc. 80 at 2-3, ¶ 8 (citing Doc. 79, Tr. at 13-16).)

24. Defendants concede that “RF Construction provides the machinery, the more expensive machinery for work, but [the laborers like Plaintiff] bring their tools.” (Doc. 81 at 7, ¶ 58, quoting testimony of Jorge Castillo, Doc. 79, Tr. at 144, 159.) Defendants agree that among the more expensive equipment owned by RF is a Bobcat and a work trailer with various tools including table saws, pneumatic guns, and other handheld tools. (Doc 79, Tr. At 74- 75.).^[3]

25. Defendants also argue that Plaintiff owned a trowel machine which he sometimes rented to RF. (Doc. 81 at 7, ¶ 57.) Plaintiff denies having rented any equipment to RF. (Doc. 79, Tr. at 52.)

26. The parties agree (and the Court holds) that most tools, including the more expensive and specialized tools were provided by RF and that RF did so by way of a box trailer which it owned and brought to a job site. The Court finds that the tools and equipment provided by RF included building materials (cement, wood, and nails), specialized hand tools such as trowels and pneumatic nail guns, and other larger equipment such as Bobcats and excavators. In some instances, the equipment was owned by RF and in others, rented by RF on an as-needed basis.

27. It is undisputed that Plaintiff did not participate in business acquisition for RF and never bid his own work to RF. (Doc. 79, Tr. at 13.) He did not purchase the concrete or choose the projects RF engaged in. (Id. at 16.) Rather, a representative from RF would tell Plaintiff which project he was to work on, and when to start and finish his work. (Id.)

28. Jorge' Castillo Rodriguez (“Castillo”) testified on behalf RF Construction. The Court found his testimony less than credible. For instance, Castillo originally described himself as a “foreman” for RF Construction. (Id. at 142.) On further questioning by the Court, however, he admitted that he had an ownership interest in RF and shared in the profits. (Id. at 170-71.) “Well, so I'm the one in charge of the profits or gains for the company, so basically you could say that I am in charge of the money of the company.” (Id. at 172.)

29. Furthermore, in response to a question about excavators used by RF on its jobs, he initially testified he was “the owner of machinery”. (Id. at 166.) On further questioning by the Court, however, he admitted that while he owned one of the excavators, he and RF shared ownership of the other. (Id. at 168.)

30. The source of Castillo's bias in favor of Defendants was made obvious during his testimony. He testified that “between her [Ford] and I, and I repeat, I'm very thankful for her. She helped me when I needed it the most. . . . She came out of nowhere to help me.” (Id. at 161.)

31. Castillo testified that, as RF's representative, he would call Plaintiff and others to work at a given site and that sometimes Plaintiff was unavailable because he was doing a variety of jobs for others. (Id. at 143.)

32. Castillo stated that the number of hours Plaintiff and others worked varied from job to job. (Id. at 146-147.) However, he admitted that “RF Construction would not track the number of hours [Plaintiff] worked in a work week”, (id. at 159...