Biggio v. H2o Hair Inc.

• Decision Date: 16 December 2016
• Docket Number: CIVIL ACTION NO. 15-6034 SECTION "B"(2)
• Parties: CARRIE BIGGIO, ET AL. v. H2O HAIR INC., ET AL.
• Court: U.S. District Court — Eastern District of Louisiana

CARRIE BIGGIO, ET AL. v. H2O HAIR INC., ET AL.

CIVIL ACTION NO. 15-6034 SECTION "B"(2)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

December 16, 2016

ORDER AND REASONS

Before the Court are Defendants' "Motion for Summary Judgment Dismissing the FLSA Claims of Ashley Brown and Kayla Alvarez" (Rec. Doc. 90) and "Motion for Summary Judgment Dismissing the FLSA Claims and Gap Claims of Alison Kennedy" (Rec. Doc. 91). Plaintiffs timely filed opposition memoranda. Rec. Docs. 93-94. For the reasons discussed below,

IT IS ORDERED that the motion to dismiss the FLSA claims of Ashley Brown and Kayla Alvarez (Rec. Doc. 90) is DENIED.

IT IS FURTHER ORDERED that the motion to dismiss the FLSA and gap claims of Alison Kennedy (Rec. Doc. 91) is DENIED.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

As this Court has previously discussed, on November 18, 2015, Plaintiffs Carrie Biggio and Chelsea Luminais (collectively "Plaintiffs"), filed the present action under the Fair Labor Standards Act ("FLSA") against their former employer, asserting claims individually and on behalf of all those similarly situated. Rec. Doc. 1 at 1-2. Plaintiffs worked full-time at Defendant H2O Hair, Inc. ("H2O") under numerous job titles, including, but not limited to: apprentice, stylist, masseuse, blow-dry bar attendant, receptionist, assistant, and housekeeper. Id. at 2. Named as Defendants in the action are H2O, Michael John Gaspard,¹ Holli M. Gaspard,² and XYZ Insurance Company.³ Id.; see also Rec. Doc. 45 at ¶¶ 5-7. Plaintiffs asserted a number of claims against Defendants, including: (1) failure to pay minimum wage and overtime as mandated by the FLSA; (2) retaliation against Plaintiffs and those similarly situated who requested proper wages under the FLSA; (3) conversion and misappropriation; (4) unjust enrichment; and (5) failure to pay overdue wages following termination, as required by LA. REV. STAT. § 23:621 et seq. Id. at 3-6. Plaintiffs sought unpaid back wages, liquidated damages, punitive damages, costs, and attorney's fees, among other forms of relief applicable under Louisiana and federal law. Id. at 6-7.

Soon after filing the complaint, Plaintiffs filed a motion to conditionally certify the class. Rec. Doc. 27. On March 14, 2016, the motion was granted in part to allow conditional certification. Rec. Doc. 44 at 15. Consent forms from all potential opt-in plaintiffs had to be postmarked and deposited in the U.S. Mail on or before ninety days following the first mailing of the notice.Id. at 16. Based on these deadlines, and according to Plaintiffs, the opt-in period consequently ended on June 30, 2016. Rec. Doc. 74-1 at 1. Plaintiffs Ashley Brown and Kayla Alvarez opted-in to the class on April 27, 2016. Rec. Doc. 51. On November 2, 2016, this Court permitted Plaintiff Alison Kennedy to opt-in, even though her consent form was filed after the deadline had passed. Rec. Doc. 86.

II. THE PARTIES' CONTENTIONS

Defendants now seek to dismiss the FLSA and wage gap claims of Ashley Brown, Kayla Alvarez, and Alison Kennedy. Rec. Docs. 90-2 at 1; 91-2 at 1.

A. MS. BROWN AND MS. ALVAREZ

Ms. Brown purportedly worked for H2O from August 15, 2015 to September 29, 2015, while Ms. Alvarez worked for H2O from March 18, 2015 to July 11, 2015. Rec. Doc. 90-4 at 3. Defendants claim that Ms. Brown and Ms. Alvarez were shampoo girls who were paid on an hourly basis at the federal minimum wage rate of $7.25 per hour. Rec. Doc. 90-2 at 1. Whenever they worked over forty hours during a week, Defendants assert that both women were paid overtime wages at the rate of $10.875 per hour. Id. Relying on the affidavit of Cherie Callaghan, H2O's office manager, and time card and compensation reports for both Ms. Brown and Ms. Alvarez (Rec. Docs. 90-4, 90-6 - 90-9), Defendants argue that both employees were paid everything that they were owed. Rec. Doc. 90-2 at 2.

With regard to Ms. Brown, Plaintiffs argue that the evidence relied on by Defendants in their motion for summary judgment effectively demonstrates violations of the FLSA. Rec. Doc. 94 at 3. Specifically, a time card report for Ms. Brown during the week of September 25, 2015 shows that she worked "33:17" (meaning 33 hours and 17 minutes, equal to 33.28 hours), but that her compensation report for the corresponding period shows that she was only paid for 32.28 hours. Id. (citing Rec. Docs. 90-6 at 8; 90-7). Plaintiffs also argue that Ms. Brown attended a meeting on September 3, 2015, but that her time card does not reflect the fact that she attended the meeting and subsequently "worked straight through until her shift ended that evening." Id. (citing Rec. Doc. 94-2 at ¶ 3; Rec. Doc. 90-6 at 4).⁴ This resulted in a discrepancy of 2 hours and 26 minutes. Id. Finally, Ms. Brown insists that she worked on Monday, September 7, 2015, but that the records do not reflect, and that she was never paid for, this work. Id. at 4 (citing Rec. Doc. 94-2 at ¶ 4).

Further, Plaintiffs argue that Ms. Alvarez attended meetings during April, May, and July 2015, but she "did not clock in for most of these meetings for fear of getting into trouble." Rec. Doc. 94 at 4 (citing Rec. Doc. 94-4 at ¶ 4).⁵ She also claims that she was asked to "run errands and deliver coffee" before her shiftstarted (Rec. Doc. 94-4 at ¶ 5) and that she did not receive a paycheck "from the period April to May . . ." (id. at ¶ 6).

B. MS. KENNEDY

Ms. Kennedy purportedly worked for H2O from November 11, 2012 to January 20, 2015. Rec. Doc. 91-4 at 1. Defendants claim that she was a stylist compensated solely on a commission basis and that her compensation exceeded one and one-half times the federal minimum wage for each pay period. Rec. Doc. 91-2 at 1. Relying on a second affidavit from Ms. Callaghan, daily schedules for the period between December 21, 2012 and July 24, 2014, and a compensation report for Ms. Kennedy (Rec. Docs. 91-4 - 91-6), Defendants argue that Ms. Kennedy was paid everything that she was owed. Rec. Doc. 91-2 at 2.

Plaintiffs argue that Defendants have not proven that Ms. Kennedy is exempt from the requirements of the FLSA. Rec. Doc. 93 at 3. Specifically, Plaintiffs contend that Defendants admitted that they failed to maintain a copy of the agreement under which the exemption would apply, as required by the Code of Federal Regulations. Id. at 5 (citing Rec. Doc. 93-6).⁶ Also, they failed to record the number of hours worked by Ms. Kennedy. Rec. Doc. 93 at 6-8. Because Defendants failed to maintain these records, Plaintiffs maintain that they cannot claim the exemption. Id. at8. Finally, Plaintiffs note that Ms. Kennedy was compensated in the same way as Plaintiff Carrie Biggio and Defendants have already admitted that Ms. Biggio's payment scheme does "not fall within any exemption" to the FLSA. Id. (citing Rec. Doc. 14 at ¶ 16).

III. LAW AND ANALYSIS

Under Federal Rule of Civil Procedure 56, summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting FED. R. CIV. P. 56(c)). See also TIG Ins. Co. v. Sedgwick James of Washington, 276 F.3d 754, 759 (5th Cir. 2002). A genuine issue exists if the evidence would allow a reasonable jury to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant must point to "portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. If and when the movant carries this burden, the non-movant must then go beyond the pleadings and present other evidence to establish a genuine issue. Matsushita Elec. Indus. Co., Ltd. V. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

However, "where the non-movant bears the burden of proof at trial, the movant may merely point to an absence of evidence, thus shifting to the non-movant the burden of demonstrating by competent summary judgment proof that there is an issue of material fact warranting trial." Lindsey v. Sears Roebuck & Co., 16 F.3d 616, 618 (5th Cir. 1994). Conclusory rebuttals of the pleadings are insufficient to avoid summary judgment. Travelers Ins. Co. v. Liljeberg Enter., Inc., 7 F.3d 1203, 1207 (5th Cir. 1993).

A. MS. BROWN AND MS. ALVAREZ

Pursuant to federal law, employees are to be paid at least $7.25 per hour; for each hour worked in excess of forty hours per week, each employee is to be paid at a rate not less than one and one-half times the regular rate at which he or she is employed. 29 U.S.C. §§ 206(a)(1)(C); 207(a)(1).

Here, Defendants claim that Ms. Brown and Ms. Alvarez were paid $7.25 for each hour worked less than or equal to forty hours per week and $10.875 per hour for each hour worked in excess of forty hours per week. Rec. Doc. 90-2 at 2.⁷ Based on these assertions and accompanying exhibits (including Ms. Callaghan's affidavit and the time card and compensation reports for both Ms. Brown and Ms. Alvarez), alone, Defendants argue that they are entitled to summary judgment.

However, Plaintiffs have presented evidence to contradict Defendants' assertions. First, Plaintiffs argue that Defendants failed to pay Ms. Brown for approximately two and one-half hours of work on September 3, 2015, a full day of work on September 7, 2015, and an hour of work during the week of September 25, 2015. Rec. Doc. 94 at 3-4. Second, Plaintiffs have presented evidence that Ms. Alvarez was discouraged from clocking in to work, forced to work without clocking in, and was not paid for an entire pay period. Id. at 4; Rec. Doc. 94-4 at ¶¶ 4-6. When considering a motion for summary judgment "[a]ll facts and reasonable inferences must be construed...