Mays v. Rubiano, Inc.
| Decision Date | 09 March 2021 |
| Docket Number | CAUSE NO. 4:17-CV-48 DRL |
| Citation | 560 F.Supp.3d 1230 |
| Parties | Elizabeth MAYS and Alessandra Malmquist, Plaintiffs, v. RUBIANO, INC. and Sharon Rubiano, Defendants. |
| Court | U.S. District Court — Northern District of Indiana |
Ryan W. Sullivan, Andrew Dutkanych, III, Biesecker Dutkanych & Macer LLC, Indianapolis, IN, for Plaintiff Elizabeth Mays.
Nicholas C. Deets, Tyler J. Zipes, Hovde Dassow & Deets LLC, Indianapolis, IN, for Defendants.
Elizabeth Mays and Alessandra Malmquist were "walk-in" exotic dancers at Danzers, an adult entertainment club owned by Rubiano, Inc. The company's president, Sharon Rubiano, terminated these performers for what they allege was protected activity under the Fair Labor Standards Act (FLSA). They both move for summary judgment on their claims for unpaid wages and retaliation damages under FLSA. Ms. Mays also moves for summary judgment on her claim under Indiana's blacklisting statute. The court now grants summary judgment in part.
Danzers provides adult entertainment and sells snack food, beer, wine, and liquor purchased from wholesalers and retailers in Indiana to customers at its Indiana location. Elizabeth Mays and Alessandra Malmquist were exotic dancers at Danzers.
Danzers has two classifications of exotic dancers: "walk-in" dancers and employee dancers. Dancers begin in the "walk-in" classification, meaning they are not scheduled to work on specific days, may work on any day they wish, and may work at other clubs. When they work, they are expected to work six-hour shifts and fulfill the same roles and follow the same rules as employee dancers. Danzers has traditionally considered walk-in dancers to be independent contractors. If an adult entertainer performs satisfactorily as a "walk-in" dancer, they are usually offered the opportunity to work as an employee on payroll.
Both Ms. Mays and Ms. Malmquist were classified as walk-in dancers. Ms. Mays worked nine total days at Danzers between January 17, 2017 through February 17, 2017. Ms. Malmquist worked 43 total days1 at Danzers between July 18, 2016 until February 17, 2017, though there was a period when she didn't return to work for several months.
Back then, exotic dancers performed to music in one of two ways. On Friday and Saturday nights, the company hired a local DJ who selected the music to play. The DJ streamed his music through an online music streaming service, Napster, and YouTube. At all other times, a jukebox played music. The jukebox stored its music on an online database, which continually updated its music for customers. Customers could play the music on the jukebox through a mobile application (app). Some dancers texted their clientele to let them know that they would be working, and some used social media to advertise their performances.
On February 13, 2017, Ms. Rubiano received a letter from "Your Anonymous Dancers" that discussed Ms. Rubiano's alleged misclassification of dancers as independent contractors. In the letter, the anonymous dancers indicated that Ms. Rubiano misclassified them to avoid either paying the dancers or allowing the dancers to keep their own money. The letter accused Ms. Rubiano of violating various state and federal laws regarding payment. It indicated that if Ms. Rubiano didn't change her ways, the dancers would sue. Nothing in the record indicates who authored this letter.
During the month she worked as a walk-in dancer, Ms. Mays admitted that she broke the club's rules, including chewing gum, drinking on the job, and talking on her phone while on the floor after being asked to stop. Ms. Rubiano also accused her of being rude to customers and staff and said she was involved in an incident when a customer complained about her putting a belt around his neck. Ms. Mays knew breaking the club's rules could lead to her termination.
Prior to terminating Ms. Mays, Ms. Rubiano ran a background check on her, which included calling other adult entertainment establishments. Ms. Rubiano also directed her grandson to research Ms. Mays on Google, and he pulled up approximately ten class action lawsuits in which Ms. Mays had sued her former employers for alleged violations of her rights. These suits included among others Mays v. Midnite Dreams, Inc. , 300 Neb. 485, 915 N.W.2d 71 (2018) (FLSA claim) and Mays v. Grand Daddy's, LLC , 2015 WL 4373565, 2015 U.S. Dist. LEXIS 91747 (W.D. Wis. July 15, 2015) (same).2
Ms. Rubiano met with Ms. Mays thereafter and told her she had sued lots of clubs in the past. She asked her, She expressed concern by saying it was unbelievable that Ms. Mays would sue that many clubs. She told Ms. Mays to backtrack and think about what she was doing because filing lawsuits was dangerous and crazy. She warned Ms. Mays about filing lawsuits because there were people who would hurt people that file lawsuits.
Ms. Rubiano met with Ms. Malmquist and told her that she was interacting with the wrong person by talking with Ms. Mays. Though Ms. Malmquist told Ms. Rubiano she didn't know that Ms. Mays sued clubs, Ms. Rubiano stated that Ms. Malmquist started talking to the wrong person and would be fired for affiliating with Ms. Mays. She told Ms. Malmquist she could get hurt if she tried to sue the wrong club, which she interpreted as a threat. Ms. Malmquist says she was terminated because she was seen talking to Ms. Mays and because the company didn't want Ms. Malmquist to help Ms. Mays with a case. Ms. Rubiano says she fired her for being on social media drinking with a minor.
On June 7, 2017, several months after both dancers were terminated, Ms. Mays and Ms. Malmquist sued Rubiano, Inc. and Ms. Rubiano, alleging wage violations under FLSA, retaliation, and blacklisting. They also moved to conditionally certify a class action under FLSA. Rubiano, Inc. and Ms. Rubiano both oppose conditional certification and move for summary judgment on all claims. The court held oral argument after the case's recent reassignment to this presiding judge.
The court addresses summary judgment first because a ruling there may obviate conditional certification given the status of this case. Summary judgment is warranted when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The non-moving party must present the court with evidence on which a reasonable jury could rely to find in her favor. Goodman v. Nat'l Sec. Agency, Inc. , 621 F.3d 651, 654 (7th Cir. 2010). The court must construe all facts in the light most favorable to the non-moving party, view all reasonable inferences in that party's favor, Bellaver v. Quanex Corp. , 200 F.3d 485, 491-92 (7th Cir. 2000), and avoid "the temptation to decide which party's version of the facts is more likely true." Payne v. Pauley , 337 F.3d 767, 770 (7th Cir. 2003).
In performing its review, the court "is not to sift through the evidence, pondering the nuances and inconsistencies, and decide whom to believe." Waldridge v. Am. Hoechst Corp. , 24 F.3d 918, 920 (7th Cir. 1994). Nor is the court "obliged to research and construct legal arguments for parties." Nelson v. Napolitano , 657 F.3d 586, 590 (7th Cir. 2011). Instead, the "court has one task and one task only: to decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial." Id. The court must grant a summary judgment motion when no such genuine factual issue—a triable issue—exists under the law. Luster v. Ill. Dep't of Corrs. , 652 F.3d 726, 731 (7th Cir. 2011).
FLSA mandates "[e]very employer [to] pay to each of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, wages" specified by statute. 29 U.S.C. § 206(a). "Commerce" is defined as "trade, commerce, transportation, transmission, or communication among the several States or between any State and any place outside thereof." 29 U.S.C. § 203(b). FLSA has two grounds for coverage: individual and enterprise. See Tony & Susan Alamo Found. v. Sec'y of Lab. , 471 U.S. 290, 295 n.8, 105 S.Ct. 1953, 85 L.Ed.2d 278 (1985). If neither is met, FLSA doesn't apply. Id.
For FLSA to apply, a plaintiff must be an "employee." 29 U.S.C. § 206(a). An employee is one who, considering the "economic reality of the working relationship" under the totality of the circumstances, is "dependent upon the business to which they render service." Simpkins v. DuPage Hous. Auth. , 893 F.3d 962, 964 (7th Cir. 2018) (citing Sec'y of Lab. v. Lauritzen , 835 F.2d 1529, 1534 (7th Cir. 1987) ). The court considers the following list of non-dispositive factors: (1) the nature and degree of the alleged employer's control as to the manner in which work is performed; (2) the alleged employee's opportunity for profit or loss depending upon her managerial skill; (3) the alleged employee's investment in equipment or materials required for her task; (4) whether the service rendered requires a special skill; (5) the degree of permanency and duration of the working relationship; and (6) the extent to which the service rendered is an integral part of the employer's business. Lauritzen , 835 F.2d at 1534.
Here, the economic reality of Ms. Mays’ and Ms. Malmquist's working relationship with Rubiano, Inc. made them employees as opposed to independent contractors. The first factor weighs in favor of employment because Ms. Mays and Ms. Malmquist were expected to comply with an extensive list of rules while working that go beyond what is normally asked of an independent contractor, though these two performers also had the freedom to select the days they worked shifts (See ECF 46-12 (...
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