Bruce v. Olde England's Lion & Rose Rim, LLC, SA-20-CV-00928-XR
| Court | United States District Courts. 5th Circuit. Western District of Texas |
| Writing for the Court | XAVIER RODRIGUEZ UNITED STATES DISTRICT JUDGE |
| Parties | GARY BRUCE, Plaintiff, v. OLDE ENGLAND'S LION & ROSE RIM, LLC, ALLEN THARP, Defendants. MICHAEL SUMMERS, Plaintiff, v. OLDE ENGLAND'S LION & ROSE RIM, LLC, ALLEN THARP, Defendants. SPENCER COX, Plaintiff, v. OLDE ENGLAND'S LION & ROSE RIM, LLC, ALLEN THARP, Defendants. |
| Decision Date | 25 October 2021 |
| Docket Number | SA-20-CV-01046-XR,SA-20-CV-00929-XR,SA-20-CV-00928-XR |
GARY BRUCE, Plaintiff,
v.
OLDE ENGLAND'S LION & ROSE RIM, LLC, ALLEN THARP, Defendants.
MICHAEL SUMMERS, Plaintiff,
v.
OLDE ENGLAND'S LION & ROSE RIM, LLC, ALLEN THARP, Defendants.
SPENCER COX, Plaintiff,
v.
OLDE ENGLAND'S LION & ROSE RIM, LLC, ALLEN THARP, Defendants.
Nos. SA-20-CV-00928-XR, SA-20-CV-00929-XR, SA-20-CV-01046-XR
United States District Court, W.D. Texas, San Antonio Division
October 25, 2021
ORDER
XAVIER RODRIGUEZ UNITED STATES DISTRICT JUDGE
On this date, the Court considered Defendants' motions for summary judgment, Plaintiffs' responses, and Defendants' replies in three related cases. For the reasons discussed more fully below, the Court DENIES the motions.
BACKGROUND
Plaintiffs Gary Bruce, Michael Summers, and Spencer Cox seek damages pursuant to the Emergency Paid Sick Leave Act (“EPSLA”) for their allegedly unlawful terminations from the
Lion & Rose, a food and beverage service establishment managed by Defendant Allen Tharp through Defendant Olde England's Lion & Rose Rim, LLC. No. SA-20-CV-928-XR, ECF No. 1 (“Bruce Compl.”) ¶ 1; No. SA-20-CV-929-XR, ECF No. 1 (“Summers Compl.”) ¶ 1; No. SA-20-CV-1046-XR, ECF No. 1 (“Cox Compl.”) ¶ 1. Olde England's Lion & Rose Rim, LLC is a Texas limited liability company whose members are Allen Tharp & Associates, Inc. and ATA Restaurant Holding Company, LLC. See No. SA-20-CV-928-XR, ECF No. 32-2 (“Defs.' Mot. Ex. 1”).[1] Allen Tharp & Associates, Inc. is a Texas corporation “that oversees and manages investments including fast casual drive thru chicken restaurant franchises, full service British styled sport pub restaurants, and other similar investments.” No. SA-20-CV-928-XR, ECF No. 41 (“Tharp Aff.”) ¶ 5.[2] Tharp is the “President, incorporator, and sole Director of Allen Tharp & Associates, Inc.” Id. ¶ 4; see also No. SA-20-CV-928-XR, ECF No. 32-3 (“Defs.' Mot. Ex. 2”). ATA Restaurant Holding Company, LLC is a Texas limited liability company; its sole member, organizer, and manager is also Tharp. Tharp Aff. ¶¶ 8-9; see also No. SA-20-CV-928, ECF No. 32-4 (“Defs.' Mot. Ex. 3”).[3]
Along with his wife, Tharp also manages Allen Tharp, LLC. Tharp Aff. ¶ 7; see also No. SA-20-CV-929-XR, ECF No. 32-7 (“Defs.' Mot. Ex. 6”). Allen Tharp, LLC is a Texas limited liability company that operates as a “food and beverage service contractor at Lackland Air Force Base in San Antonio, TX.” Tharp Aff. ¶ 6; see also Defs.' Mot. Ex. 6 at 1. “As part of its contract,
Allen Tharp, LLC provides Full Food Service to the base, managing and operating sixteen state of the art full service dining facilities, one field feeding site, and one central pastry kitchen, providing over one million high quality and nutritious meals per month to Lackland personnel.” Tharp Aff. ¶ 6. Through Allen Tharp, LLC, Tharp and his wife co-manage these military dining facilities.
Prior to their terminations, Summers and Cox were bartenders at the Lion & Rose. Summers Compl. ¶¶ 1, 4, 7; Cox Compl. ¶¶ 1, 4, 7. Summers and Cox reported to Jessica Atkins, a bar manager at the Lion & Rose. No. SA-20-CV-928-XR, ECF No. 33-2 (“Summers Decl.”) ¶ 6; No. SA-20-CV-928-XR, ECF No. 33-3 (“Cox Decl.”) ¶ 3.[4] Cox alleges that, on July 2, 2020, he began to suffer from COVID-19 symptoms. Cox Compl. ¶ 9. To determine whether he had contracted the virus, Cox contacted a friend who informally administered a COVID-19 test. Id. The following day, the friend informed Cox that he had in fact contracted COVID-19 and that he should quarantine. Id.
Cox then contacted the manager on duty at the Lion & Rose to communicate his COVID-19 diagnosis. Id. Cox alleges that the manager on duty told him “not to worry, and that he would tell the other managers.” Id. Thereafter, Atkins contacted Cox and asked him to provide proof of his positive COVID-19 test. Id. Tharp also requested proof of Cox's positive COVID-19 test. Id. On July 4, 2020, to obtain proof, Cox went to a clinic and underwent testing for the COVID-19 virus. Id. ¶ 10. That test also came back positive. Id. Cox relayed proof of his positive COVID-19 test to Atkins via text message and Tharp via email. Id.
A few days later, on July 6, 2020, Cox accessed his employee schedule and discovered that his name was not listed on the schedule. Id. ¶ 11. Cox spoke to a manager at the Lion & Rose, who
allegedly told him that he “had been instructed to terminate [Cox] and the other bartender who had COVID.”[5] Id. According to Cox, “Tharp instructed his managers that anyone who tests positive for COVID was to be fired.” Id. ¶ 12.
Summers alleges that, on July 3, 2020, Cox informed him that he had tested positive for the COVID-19 virus. Summers Compl. ¶ 9. Because Summers had been in close contact with Cox, Summers contacted his supervisor at the Lion & Rose to request time off. Id. The supervisor allegedly told Summers to report to work because he had not tested positive for the virus. Id. Still hesitant, Summers asked the supervisor to obtain clarification from Tharp. Id. ¶ 10. Before his shift began, Summers contacted a different supervisor at the Lion & Rose, who allegedly told him that Tharp had stated that Summers and Cox “were faking it in order to get the Fourth of July weekend off.” Id. Summers then contacted Tharp and told him that, because Cox had tested positive for the COVID-19 virus and because he had been in close contact with Cox, he intended to undergo testing for the virus. Id. ¶ 11. Tharp allowed Cox to take time off, but allegedly instructed “managers to advise any employees who had concerns about reporting to work that [Summers and Cox] did not actually test positive.” Id. Summers alleges that Tharp told his managers that he and Cox “were to be fired for unrelated, pretextual reasons.” Id.
On July 4, 2020, Summers underwent testing for COVID-19 and learned that he had, in fact, contracted the virus. Id. ¶ 12. The next day, Summers woke up feeling ill. Id. ¶ 13. Fearing that he had been terminated, Summers attempted to access his employee schedule online, but his access was denied. Id. Summers contacted his supervisor at the Lion & Rose, who informed him “that he had been terminated on Defendant Tharp's instruction.” Id. Summers then contacted Tharp
and asked him whether he was terminated. Id. ¶ 14. Summers alleges that “Tharp falsely denied that he had previously given the order to fire [him] but stated that [he] was now terminated.” Id.
Bruce was a general manager at the Lion & Rose before his termination. Bruce Compl. ¶ 1; see also No. SA-20-CV-928-XR, ECF No. 33-4 (“Bruce Decl.”) ¶ 2.[6] Bruce reported to Tharp and Frank Ayala, a former general manager at the Lion & Rose. Bruce Compl. ¶ 8; see also Bruce Decl. ¶ 4. Bruce alleges that, on July 8, 2020, he began to suffer from a high fever and underwent testing for the COVID-19 virus. Bruce Compl. ¶ 9. Bruce feared that he may have contracted the virus after being in close contact with two co-workers who had tested positive for COVID-19.[7] Id. On the day he underwent testing, Bruce informed Tharp that he could not report to work because he had a high fever, was feeling unwell, and had to remain in quarantine for seven to ten days pending testing results. Id. Bruce alleges that he “was concerned that Defendant Tharp would have an unfavorable reaction . . . as Defendant Tharp had previously reacted with great animosity when he learned that two bartenders had tested positive.”[8] Id.
Bruce returned to work after testing negative for the virus. Id. ¶ 10. When he received his paycheck, however, Bruce discovered that had not been paid for the days he quarantined. Id. Believing that the EPSLA entitled him to paid sick leave under the circumstances, Bruce spoke with Tharp to remedy the situation; he was unsuccessful. Id. at 4. On July 26, 2020, Tharp terminated Bruce. Id. ¶ 11.
On August 10, 2020, Bruce and Summers initiated separate actions in this Court against Olde England's Lion & Rose Rim, LLC and Tharp for wrongful discharge under the EPSLA. See Bruce v. Olde England's Lion & Rose Rim, LLC,
No. SA-20-CV-928-XR (W.D. Tex. filed Aug. 10, 2020); Summers v. Olde England's Lion & Rose Rim, LLC, No. SA-20-CV-929-XR (W.D. Tex. filed Aug. 10, 2020). The Undersigned was assigned to these two cases. On September 3, 2020, Cox initiated a third action against Olde England's Lion & Rose Rim, LLC and Tharp, also alleging wrongful discharge under the EPSLA. See Cox v. Olde England's Lion & Rose Rim, LLC, No. SA-20-CV-1046-XR (W.D. Tex. filed Sept. 3, 2020). United States District Judge Fred Biery was assigned to Cox's case. On September 9, 2021, upon finding that all three cases were related, Judge Biery issued an order transferring and reassigning Cox's case to the Undersigned.
On July 12, 2021, Defendants filed identical motions for summary judgment in all three cases.[9] Defendants argue that they are not subject to liability under the EPSLA because, pursuant to the single integrated enterprise and joint employer doctrines, they are not covered employers under the EPSLA. Plaintiffs Bruce, Summers, and Cox filed identical responses in opposition, [10]and Defendants filed identical replies.[11]
DISCUSSION
I. Summary Judgment Standard
The Court shall grant summary judgment if the movants show that there is no genuine dispute as to any material fact and the movants are entitled to judgment as a matter of law. Fed.R.Civ.P. 56. The moving parties bear the initial burden of “informing the Court of the basis of its
motion” and identifying those portions of the record that “it believes demonstrate the absence of a genuine issue of material fact.” Adams v. Travelers Indem. Co., 465 F.3d 156, 163 (5th Cir. 2006).
To establish that there is no genuine issue as to any material fact, the movants must either submit evidence that negates the existence of some material element of the nonmovants' claims or defenses, or, if the...
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