Biziko v. Van Horne

• Decision Date: 20 August 2019
• Docket Number: No. 1:16-CV-0111-BP,1:16-CV-0111-BP
• Parties: AMBER BIZIKO, Plaintiff, v. STEVEN VAN HORNE, et al., Defendants.
• Court: U.S. District Court — Northern District of Texas

AMBER BIZIKO, Plaintiff, v. STEVEN VAN HORNE, et al., Defendants.

No. 1:16-CV-0111-BP

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS ABILENE DIVISION

August 20, 2019

REPORT AND RECOMMENDATION

Before the Court are Plaintiff's Motion for Partial Summary Judgment (ECF No. 74) and Defendants' Motion for Partial Summary Judgment (ECF No. 75). Each party has filed a response in opposition, see Defs.' Resp. (ECF No. 78) and Pl.'s Resp. (ECF No. 79), and a reply brief, see Pl.'s Reply (ECF No. 80) and Defs.' Reply (ECF No. 81). The parties have provided evidentiary support and other documents with their filings.¹ Both motions are fully ripe and ready for ruling.

Pursuant to Special Order No. 3-326 issued on June 15, 2019, the undersigned will preside over all civil cases assigned or referred to Magistrate Judge E. Scott Frost until a replacement magistrate judge has been appointed for the Abilene Division. This action has been referred pursuant to 28 U.S.C. § 636(b). Because the parties have not consented to have all further proceedings in this case conducted by a magistrate judge, the undersigned issues this report andrecommendation, directs the Clerk of Court to reassign the case to Senior District Judge Sam R. Cummings for all further proceedings, and recommends that the Court (1) GRANT in part and DENY in part Plaintiff's motion and (2) DENY Defendants' motion.

BACKGROUND

On June 22, 2016, Plaintiff commenced this action by filing a civil complaint against defendants Steven Van Horne ("SVH") and Michelle N. Van Horne ("MVH"), "d/b/a A Habitat for Learning," ("AHFL" or "Habitat") under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201-16, for failure to pay overtime. (See ECF No. 1, Compl.). Nearly two years later, on June 18, 2018, SVH testified as corporate representative for Habitat that Plaintiff had entered into an agreement with another entity, Loving Individuals Generating Healing Today ("LIGHT"), to perform volunteer work for Habitat in exchange for a cash stipend from LIGHT for the hours volunteered. (See ECF No. 58-2 at 18-35).

On July 9, 2018, Plaintiff moved to file a second amended complaint based on this alleged newly discovered evidence. (See ECF No. 56, Second Mot. for Leave to Am. Compl.). As the motion remained pending, Defendants deposed Plaintiff on August 3, 2018. (See ECF No. 78-3 at 1). She testified that SVH did not want her to report any hours over forty because "he didn't want to do the time and a half." Id. at 24. When asked, "The over 40 hours, who was that work for?", she responded "A Habitat for Learning." Id. She further testified that she had never heard of a "LIGHT Charitable Participation Record" and had no knowledge of LIGHT. Id. at 26. When pressed about her attorneys moving to add LIGHT as a defendant, she indicated that she did not understand the questioning. Id. at 26-27. She later reiterated that she knows nothing about LIGHT. Id. at 42.

With her reply brief filed August 13, 2018, Plaintiff submitted the full SVH deposition transcript from June 18, 2018, to support her position that newly discovered information justified amending her complaint to add a new defendant. (See ECF No. 58-2). When the Court granted Plaintiff permission to file a second amended complaint on September 24, 2018, it noted "an unusual procedural background" in addition to the unusual twist "that according to Defendants, Plaintiff both volunteered and worked for pay at AHFL," whereas Plaintiff claims to have "never worked as a volunteer at AHFL." (ECF No. 61, Mem. Op. & Order, at 1-2).

At this point, there is no reason to reiterate the atypical background, but information submitted with the motion to amend is relevant to a major issue in this case - Plaintiff's employment relationship with defendants. In addressing that motion and without making any determination as to its factual accuracy or credibility, the Court considered the deposition testimony of SVH regarding the alleged volunteer work arrangement between Plaintiff and LIGHT.² See id. at 3, 6-9. It summarized that testimony as follows:

While experiencing financial difficulties while working for AHFL, Plaintiff approached Mr. Van Horne asking to work overtime because she needed additional funds. AHFL did not need any employee to work overtime. It did not approach Plaintiff and ask her to work overtime. When she informed Mr. Van Horne about her financial problems, he mentioned LIGHT as a potential aid to her problems. He told her that he was involved in an outreach organization that could help if she were volunteering for a non-profit organization, such as AHFL. Even though AHFL had no reason to give anyone overtime on a regular basis, he suggested LIGHT as a way "for her to receive more money." Although she initially declined to explore the volunteering option, a few weeks later, she asked if she could get the help from the outreach organization.

Because Plaintiff both worked and volunteered at AHFL, she would note on the far right end of her time sheet the hours that she had volunteered. So, for example, "if she worked four hours for the day and volunteered three hours, she would write down the times that she worked, from what time to what time, and then she would just simply put three hours or four hours that she volunteered." Whether she was volunteering or working for pay at AHFL, she performed the same duties. AHFL did not combine the volunteer hours with the work-for-pay hours to calculate overtime pay. Instead, as Plaintiff requested, her stipend from LIGHT was paid at her normal hourly rate multiplied by the number of hours that she volunteered.

Id. at 3 (citations omitted). After considering applicable "legal principles, the briefing, prior court orders, pertinent background information, and the proposed amended complaint, the Court grant[ed] Plaintiff leave to amend to name LIGHT as a new defendant." Id. at 11.

In that amended complaint, Plaintiff adds LIGHT as a new defendant and sues the four defendants for alleged failures to pay overtime as required by 29 U.S.C. § 207(a) of the FLSA. (See ECF No. 62, Second Am. Compl., ¶¶ 1-2). In her present motion, Plaintiff seeks summary judgment on one issue - that the two entity defendants "constitute a single employer under the FLSA" but if the Court finds otherwise, she urges it to find that they "constitute a single joint employer." (ECF No. 74 at 1). In their motion, Defendants seek summary judgment for all claims against LIGHT and for claims asserted against MVH to the extent her liability is based on alleged actions taken on behalf of LIGHT. (ECF No. 75 at 2-7).

The following facts are drawn from the parties' pleadings, briefs, and evidence filed in this case. When "both sides move for summary judgment," courts may "recount the evidence that is undisputed, and, when it is necessary to set out evidence that is contested, will do so favorably to the side who is the summary judgment nonmovant in the context of that evidence." Leal v. Magic Auto Touch Up, Inc., No. 3:16-CV-0662-D, 2018 WL 297339, at *1 (N.D. Tex. Jan. 4, 2018). Tothe extent any fact is disputed, it will be so stated.

I. Defendants

Habitat is a private, non-profit school with children ranging in age from newborns to sixteen. (ECF No. 78-2, Habitat Corp. Dep., at 8, 18).³ It is comprised of eleven buildings at three locations: Beltway (eight buildings at 3242 Beltway South in Abilene), Tuscola (two buildings at 410 Graham Street in Tuscola), and Sayles (one building at 1957 Sayles Boulevard in Abilene). Id. at 8-9, 15. Four individuals sit on its board: Carlton Lyons, Mark Almeida, Andraes Royal, and MVH. Id. at 10-11.

LIGHT is a charitable organization that provides services for low income people who are having difficulties "making ends meet." (ECF No. 79-2, Corp. Dep. LIGHT, at 10). SVH has also described it as "an outreach program" designed to provide help to persons in need. (ECF No. 78-2 at 16). It obtains funding through "different volunteering systems," private donors, and a childcare facility it operates under the name "Children of Light," which has about fifty children enrolled. Id. at 54-55. Its director is Kathy Larry. (ECF No. 79-2 at 12). According to SVH, it has shared a mailing address with Habitat at the Sayles location; has a physical address at 588 East Ambler in Abilene;⁴ and has four board members: himself, David Mrotek, David Als, andMark Almeida. (ECF No. 78-2 at 15-17, 52-53; ECF 79-2 at 12). Nevertheless, tax documents filed by the two entities show the same address (3242 Beltway South); business purpose (primary purpose is to provide development and educational services for children and families); and officers or trustees (Carlton Lyons, Mark Almeida, Andreas Royal, and MVH). (See ECF Nos. 74-3, 74-5, 74-7 (2014-16 taxes for LIGHT) at 1 -2, 7; ECF Nos. 74-4, 74-6, 74-8 (2014-16 taxes for Habitat) at 1-2, 7).

SVH founded Habitat and is an administrator for it but does not sit on its board. (ECF No. 78-2 at 11). He worked with Plaintiff on a day-to-day basis for the first part of her employment. Id. at 12. He did not supervise her as an immediate supervisor, but he "would know what was going on." (ECF No. 75-1 at 12). He and MVH provided supervision above her immediate supervisor. (ECF No. 74-1). Although he had authority to hire and fire Plaintiff, such decisions were for the board. (ECF No. 75-1 at 12).

SVH also testified that he was a founder and board member of LIGHT. (ECF No. 79-2 at 9; ECF No. 78-2 at 17). As a board member, SVH would "help make the decisions" when certain corporate matters would arise, such as "whether we were going to spend in a certain area or not." (ECF No. 79-2 at 11). In his role at LIGHT he worked with Plaintiff in that he "enrolled her as a client." Id. at 9. He explained that he also worked with Plaintiff at Habitat and because she was experiencing financial difficulties, he told her about his involvement with LIGHT, a company that "pretty much assists ...