Harlas v. Barn LLC

Decision Date13 February 2020
Docket NumberCivil Action No. 18-cv-02320-RM-NYW
PartiesLINDA HARLAS, Plaintiff, v. THE BARN LLC, a Colorado Limited Liability Company; M AND R ENTERPRISES LLC, a Colorado Liability Company; and CATHERINE HAIGH, an individual, Defendants.
CourtU.S. District Court — District of Colorado

Judge Raymond P. Moore


This matter is before the Court on Plaintiff Linda Harlas's "Second Amended Partial Motion for Summary Judgment" ("Motion") against Defendants The Barn LLC, M and R Enterprises LLC, and Catherine Haigh, for violating the Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et seq. ("FLSA"), and the Colorado Minimum Wage Act, Colo. Rev. Stat. § 8-6-101 et seq. ("CMWA"). (ECF No. 58.) Specifically, Harlas seeks summary judgment on whether she was The Barn LLC's employee. The Motion is fully briefed and is ripe for adjudication. The Court denies Plaintiff's Motion because Plaintiff has failed to establish there is no genuine issue of material fact regarding whether Plaintiff is covered by the FLSA.


Defendant The Barn LLC is a commercial landlord and property management service that leases space to retail tenants in an old lumber barn located in Castle Rock, Colorado. (ECF No. 58-3, ¶ 3a; 76-6, ¶¶ 8-10.) The physical property is separately owned by Defendant M and R Enterprises LLC ("M and R") and is commonly referred to as "The Barn Antique and Specialty Shops" ("The Barn") (ECF Nos. 76-6, ¶¶ 4-10.) Both Defendant The Barn LLC and Defendant M and R are single member LLCs consisting only of Catherine Haigh.1 (ECF No. 58-3, ¶ 3c; 59-11, 4:11-13; 76-6, ¶¶ 2-3.) Put simply, Defendant The Barn LLC leases The Barn from Defendant M and R and provides landlord services to tenants/merchants who lease space in The Barn and sell their merchandise, but it does not sell its own merchandise. (ECF No. 59-11, 39:21-40:1, 49:21- 25; 76-6, ¶ 10.)

The Barn is similar to an antique shop wherein tenants lease space and retail merchandise in an "open-air mall" fashion. (ECF No. 76-6, ¶ 8.) Tenants/merchants, colloquially referred to as "Barnies," lease space from Defendant The Barn LLC on a month-by-month basis, and the base rent is due on the last day of the prior month. (ECF No. 76-6, ¶ 11.) Defendant The Barn LLC then uses the Barnies' rent payments as its own lease payment to Defendant M and R. (ECF Nos. 76-6, ¶¶ 4, 10; 59-11, 36:7-18.) Either party could unilaterally decide to discontinue the lease arrangement - the Barny could simply not pay rent or Defendant The Barn LLC could notify the Barny that the Barny's lease will expire within thirty days. (ECF No. 76-6, ¶ 11.)

Plaintiff began her tenancy at The Barn in 2010. (ECF No. 58-3, ¶ 2a.) Until her eviction in May 2018, Plaintiff and her business "Sunday Afternoon Antiques" ("Sunday Afternoon") leased space from Defendant The Barn LLC under a month-by-month lease agreement. (ECF No. 58-3, ¶¶ 2a-b.) The original lease terms required (1) a rent; (2) an operating fee; (3) a credit card transaction fee; and (4) a percent commission on sales. (ECF No. 76-6, ¶ 22.) During the time Plaintiff leased space from Defendant The Barn LLC, she could sell her merchandise outside of The Barn. (ECF No. 58-3, ¶ 2b.)

Under Plaintiff's original lease arrangement, she also agreed to operate the cash register four days per month, which increased periodically throughout the years to eight days per month in February 2017 when Plaintiff leased additional space. (ECF Nos. 58-3, ¶ 2c; 76-6, ¶¶ 15, 22, 24, 51.) It is undisputed Plaintiff worked the cash register about 126.5 days between September 2015 and May 2018. (ECF No. 76-6, ¶¶ 51-52.) Plaintiff was not compensated for her time working the cash register. (ECF No. 76-6, ¶ 35).

The Barn LLC had a manual of policies and procedures called "The Barn LLC Merchant Policy and Procedure Manual" ("PPM"), which was initially the product of several Barnies' efforts in 2012 and has continued to evolve over the years based on tenants' subsequent requests - the relevant edition having been last revised August 28, 2017. (ECF No. 59-1.) Defendant The Barn LLC took over editing and revising the PPM between 2014 and 2015 based on those tenant requests. (ECF Nos. 59-11, ¶ 7; 59-11, 92:14-95:5.)

In its relevant form, the PPM states: "All Merchants of The Barn are REQUIRED to follow all Policies contained herein and all Producers provided by The Barn Management for opening, closing and running The Barn on their work days." (ECF No. 59-1, at 5.) Violating the PPM was grounds for immediate eviction, fine, or probation. (ECF Nos. 59-1, at 6; 59-11, 12:21-15:25.) The Barn LLC also reserved the right to place a Barny on probation, restricting the Barny from working their "required days" and deducting $126.00 from the Barny's sales for every day they would otherwise be required to work. (ECF No. 59-1, at 6.) Defendants do not dispute the PPM allowed The Barn LLC to punish tenants using any of the methods therein. (ECF Nos. 76-1, 13:2-9, 87:14-20; 76-6, ¶ 48; 76-6, ¶¶ 36-38.) The PPM was incorporated into Barnies' lease agreements and treated as lease terms. (ECF No. 59-11, 12:21-13:9.)

In addition to her workdays, Plaintiff volunteered as a shift leader, a concept coined and largely operated by the Barnies themselves. (ECF No. ¶¶ 26-28.) The PPM is notably silent regarding the shift leader position. (See generally ECF No. 59-1.) Plaintiff states her duties included all duties related to both opening and closing the Property, making sure Barnies complied with the substitution policies, noting and reporting "issues," and general cleaning, in addition to normal workday duties such as ringing up customer sales. (ECF No. 58-3, ¶ 5a.)

In June 2018, Plaintiff was informed she would not be allowed to work her designated workdays in June 2018 and that Defendant The Barn LLC was terminating her tenancy as of June 30, 2018 due to alleged misconduct involving other Barnies. (ECF No. 76-6, ¶ 59.) Within sixty days of Defendant The Barn LLC's notice that Plaintiff was not allowed to work her required shifts during the month of June, she wrote to The Barn LLC, requesting unpaid wages and commissions. (ECF No. 58-3, ¶ 5d.) Plaintiff did not receive any money. (Id.)

Plaintiff seeks partial summary judgment in her favor establishing that during her workdays she was Defendant The Barn LLC's employee within the definition of the FLSA and CMWA. Defendants argue Plaintiff has not shown there is no genuine issue of material fact regarding whether the FLSA protections apply. Plaintiff is inexplicably silent on the threshold issue of her coverage under the FLSA. Therefore, the Court finds there is a genuine issue of material fact regarding whether Plaintiff is in fact covered under the FLSA.


A. Summary Judgment

Summary judgment is appropriate only if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem. Coal Co., Inc., 41 F.3d 567, 569-70 (10th Cir. 1994). "A party seeking summary judgment bears the initial responsibility of informing the district court of the basis for its motion . . . ." Robertson v. Bd. of Cty. Comm'rs of the Cty. of Morgan, 78 F. Supp. 2d 1142, 1146 (D. Colo. 1999) (citation omitted). Whether there is a genuine dispute as to a material fact depends upon whether the evidence presents a sufficient disagreement to require submission to a jury or is so one-sided that one party must prevail as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986); Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136 (10th Cir. 2000). Once the moving party meets its initial burden of demonstrating an absence of a genuine dispute of material fact, the burden then shifts to the non-moving party to move beyond the pleadings and to designate evidence which demonstrates the existence of a genuine dispute of material fact to be resolved at trial. See 1-800-Contacts, Inc. v. Lens.com, Inc., 722 F.3d 1229, 1242 (10th Cir. 2013) (citation omitted). A fact is "material" if it pertains to an element of a claim or defense; a factual dispute is "genuine" if the evidence is so contradictory that if the matter went to trial, a reasonable jury could return a verdict for either party. Anderson, 477 U.S. at 248. In considering whether summary judgment is appropriate, the facts must be considered in a light most favorable to the non-moving party. Cillo v. City of Greenwood Vill., 739 F.3d 451, 461 (10th Cir. 2013) (citations omitted).

"[O]n a motion for summary judgment, it is the responding party's burden to ensure that the factual dispute is portrayed with particularity, without depending on the trial court to conduct its own search of the record." Cross v. The Home Depot, 390 F.3d 1283, 1290 (10th Cir. 2004) (internal quotation and citation omitted). In doing so, the "nonmoving party must show 'that genuine issues remain for trial 'as to those dispositive mattes for which it carries the burden of proof.'" Brubach v. City of Albuquerque, 893 F. Supp. 2d 1216, 1222 (D.N.M. 2012) (citing Applied Genetics Int'l Inc. v. First Affiliated Secs., Inc., 912 F.2d 1238, 1241 (10th Cir. 1991)). The Court is "not obligated to comb the record in order to make [a party's] arguments for [it]." See Mitchell v. City of Moore, Okla., 218 F.3d 1190, 1199 (10th Cir. 2000). Further, Local Rule 7.1(e) provides that "[e]very citation in a motion, response or reply shall include the specific page or statutory subsection to which reference is made." D.C. Colo. L. Civ. R. 7.1(e).

"Evidence presented must be based on more than 'mere speculation, conjecture, or surmise' to defeat a motion for summary judgment." Southway v. Cent. Bank of Nigeria, 149 F. Supp. 2d 1268, 1274 (citations omitted). "If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact . . ., the...

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