Hanson v. Trop, Inc.

• Decision Date: 03 March 2016
• Docket Number: CIVIL ACTION NO. 1:14-cv-01096-AT
• Citation: 167 F.Supp.3d 1324
• Parties: Alyssa Hanson, on behalf of herself and all others similarly situated, Plaintiff, v. Trop, Inc., d/b/a Pink Pony, Atlanta, Defendant.
• Court: U.S. District Court — Northern District of Georgia

167 F.Supp.3d 1324

Alyssa Hanson, on behalf of herself and all others similarly situated, Plaintiff,

v.Trop, Inc., d/b/a Pink Pony, Atlanta, Defendant.

CIVIL ACTION NO. 1:14-cv-01096-AT

United States District Court, N.D. Georgia, Atlanta Division.

Signed March 3, 2016

Anthony C. Lake, Gillen Withers & Lake, LLC, William Grant Cromwell, Cromwell Law Group, Atlanta, GA, Benjamin J. Sweet, Del Sole Cavanaugh Stroyd, Edwin J. Kilpela, Gary F. Lynch, Jamisen Etzel, Carlson Lynch Sweet & Kilpela, LLP, Pittsburgh, PA, Thomas A. Withers, Gillen, Withers & Lake, LLC, Savannah, GA, for Plaintiff.

Stephen Whitfield Brown, William Scott Schulten, Dean R. Fuchs, Schulten Ward & Turner, Atlanta, GA, for Defendant.

ORDER

Amy Totenberg

, United States District Judge

This is a minimum and overtime wage case brought pursuant to the Fair Labor Standards Act (“FLSA”), 29 U.S.C.A. § 201 et seq.

Plaintiff, an exotic dancer at the Pink Pony club in Atlanta, Georgia, alleges that she was misclassified by Defendant Pink Pony as an independent contractor, and therefore not paid minimum wage or overtime wages as required by the FLSA. Defendant has moved for summary judgment on two grounds: 1) Plaintiff was properly classified as an independent contractor; and 2) Plaintiff does not have sufficient proof of working more than 40 hours on any given week to withstand summary judgment on that claim. For the following reasons, Defendant's Motion [Doc. 32] is DENIED .

I. LEGAL STANDARD

The Court may grant summary judgment only if the record shows “that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a)

. A factual dispute is genuine if there is sufficient evidence for a reasonable jury to return a verdict in favor of the non-moving party. See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A factual dispute is material if resolving the factual issue might change the suit's outcome under the governing law. Id. The motion should be granted only if no rational fact finder could return a verdict in favor of the non-moving party. Id. at 249, 106 S.Ct. 2505

.

When ruling on the motion, the Court must view all the evidence in the record in the light most favorable to the non-moving party and resolve all factual disputes in the non-moving party's favor. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)

. The moving party need not positively disprove the opponent's case; rather, the moving party must establish the lack of evidentiary support for the non-moving party's position. See

Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party meets this initial burden, in order to survive summary judgment, the non-moving party must then present competent evidence beyond the pleadings to show that there is a genuine issue for trial. Id. at 324–26, 106 S.Ct. 2548. The essential question is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251–52, 106 S.Ct. 2505.

II. FACTUAL BACKGROUND¹

Plaintiff worked as an exotic dancer at Pink Pony for over four years, starting in April 2011. (Declaration of Alyssa Hanson ¶ 2, Doc. 35–3.) When she started the job, she filled out a number of forms, including an “Independent Contractor Agreement,” (Declaration of Edward Stone, ¶ 28, Ex A, Doc. 32–4), and a Consent to random drug testing. (Hanson Decl., Ex. C, Doc. 35–5). While Plaintiff worked at Pink Pony, she was not paid a minimum wage and she worked more than 40 hours per week “quite a bit” in 2012 and may have done so in 2013 as well. (Deposition of Alyssa Hanson at 116:2–9, Doc. 32–3). Plaintiff brought this lawsuit to recover unpaid minimum and overtime wages. As the classification of a worker as an employee or an independent contractor is a fact-intensive inquiry, the Court will include further relevant facts in that analysis below.

III. DISCUSSION

Defendant argues it is entitled to summary judgment both because Plaintiff was properly classified as an independent contractor under the Eleventh Circuit's six-factor economic realities test, and because Plaintiff has not presented sufficient proof that she worked overtime hours at Defendant's establishment. These two issues are addressed in turn.

A. Employee or Independent Contractor

Whether the Plaintiff is an “employee” under the FLSA is a question of law for the Court, “with subsidiary findings being issues of fact.” Patel v. Wargo, 803 F.2d 632, 634 n. 1 (11th Cir.1986)

; Antenor v. D & S Farms, 88 F.3d 925, 929 (11th Cir.1996) (“A determination of employment status under the FLSA ... is a question of law.”); see also

Stevenson v. Great Am. Dream, Inc., No. 1:12–CV–3359–TWT, 2013 WL 6880921, at *3 (N.D.Ga. Dec. 31, 2013). “The FLSA's overtime and minimum wage protections ... extend only to ‘employees.’ ” Scantland v. Jeffry Knight, Inc., 721 F.3d 1308, 1311 (11th Cir.2013). The FLSA defines “employee” broadly. Id. “Independent contractors,” however, do not fall within that definition. Id. To determine whether a party was an employee or an independent contractor, the Court looks to the “economic reality of the relationship between the alleged employee and alleged employer.” Id.

(internal quotation marks omitted). The inquiry focuses on the level of economic dependence. Id. at 1312. “[T]he final and determinative question must be whether the ... personnel are so dependent upon the business with which they are connected that they come within the protection of FLSA or are sufficiently independent to lie outside its ambit.” Usery v. Pilgrim Equip. Co., Inc., 527 F.2d 1308, 1311–12 (5th Cir.1976).² “The concept has also been put in terms of whether the individual is ‘in business for [her]self.’ ” Mednick v. Albert Enterprises, Inc., 508 F.2d 297, 302 (5th Cir.1975).

The Court may consider various factors, such as (1) degree of control, (2) opportunity for profit or loss, (3) investment in equipment or additional personnel required, (4) skill required, (5) duration, and (6) the extent to which the service is integral to the alleged employer's business. See Scantland, 721 F.3d at 1312

. “[T]hese six factors are not exclusive and no single factor is dominant.” Id. The Court must assess the facts relevant to these factors “through the lens of ‘economic dependence’ and whether they are more analogous to the ‘usual path’ of an employee or an independent contractor.” Id.

This standard is not susceptible to a simple application. See Usery, 527 F.2d at 1311

(“The test is not one which allows for a simple resolution of close cases.”). When a disposition in either direction can be justified, the Court must err in favor of a broader reading of “employee.” Id. (“Given the remedial purposes of the legislation, an expansive definition of ‘employee’ has been adopted ... a constricted interpretation of the phrasing by the courts would not comport with its purpose.”); see also Department of Labor, Wage and Hour Division, Administrator's Interpretation No. 2015–1, 2015 WL 4449086, (July 15, 2015) (“DOL Interpretation”) available at http://www.dol.gov/whd/workers/Misclassification/AI–20151.pdf (“A worker who is economically dependent on an employer is suffered or permitted to work by the employer. Thus, applying the economic realities test in view of the expansive definition of ‘employ’ under the Act, most workers are employees under the FLSA.”). To conclude that a party is an “independent contractor” because she bears some of its characteristics would “invite adroit schemes by some employers and employees to avoid the immediate burdens at the expense of the benefits sought by the legislation.” Usery, 527 F.2d at 1311 ; see also

Mednick, 508 F.2d at 303 (“An employer cannot saddle a worker with the status of independent contractor, thereby relieving itself of its duties under the F.L.S.A. by granting [her] some legal powers where the economic reality is that the worker is not and never has been independently in the business which the employer would have [her] operate.”).

To begin, this is not a matter of first impression for this district. Two prior cases have found adult entertainers working under conditions similar to the Plaintiff in this action were “employees” protected by the FLSA. See Stevenson, 2013 WL 6880921

; Clincy v. Galardi South Enterprises, Inc., 808 F.Supp.2d 1326 (N.D.Ga.2011). Many other courts have reached the same conclusion. See

Reich v. Circle C. Investments, Inc., 998 F.2d 324 (5th Cir.1993) ; McFeeley v. Jackson St. Entm't, LLC, 47 F.Supp.3d 260, 273 (D.Md.2014) ; Verma v. 3001 Castor, Inc., 2014 WL 2957453 (E.D.Pa. June 30, 2014) ; Butler v. PP & G, Inc., No. 13–430, 2013 WL 5964476, *6 (D.Md. Nov. 7, 2013)

; Hart v. Rick's Cabaret Int'l, Inc., 967 F.Supp.2d 901, 912–13 (S.D.N.Y.2013) ; Thornton v. Crazy Horse, Inc., No. 06–00251, 2012 WL 2175753 (D.Ak. June 14, 2012) ; Thompson v. Linda and A. Inc., 779 F.Supp.2d 139, 151 (D.D.C.2011) ; Morse v. Mer Corp., 2010 WL 2346334, at *6 (S.D.Ind.2010) ; Doe v. Cin–Lan, Inc., No. 08–12719, 2008 WL 4960170 (E.D.Mich.2008) ; Harrell v. Diamond A Entm't, Inc., 992 F.Supp. 1343, 1348 (M.D.Fla.1997) ; Reich v. Priba Corp., 890 F.Supp. 586, 594 (N.D.Tex.1995). But see

Matson v. 7455, Inc., 2000 WL 1132110 (D.Or. Jan. 14, 2000) ; Hilborn v. Prime Time Club, Inc., 2012 WL 9187581 (E.D.Ark. July 12, 2012). Here, evidence in the record as to all six factors sufficiently supports “employee” status such that summary judgment in favor of Defendant must be denied.

1. Factor 1: Degree of control

Pink Pony exercised significant control over the Plaintiff in the employment setting. The Court adopts the following statements of the evidence in this case related to control summarized in Plaintiff's brief because they are supported by the record. (S...