United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND OPINION
ROSENTHAL, CHIEF UNITED STATES DISTRICT JUDGE
Gaye sued TJD Transportation, TJD Limo, and Djibril Gacou,
alleging that the defendants failed to pay him overtime rates
for overtime work, in violation of the Fair Labor Standards
Act. (Docket Entry No. 1). Gaye has moved for partial summary
judgment on the grounds that he was the defendants'
employee, not an independent contractor, and that the
defendants' affirmative defenses are improper or fail as
a matter of law. The defendants cross-moved for summary
judgment on the ground that Gaye was an independent
contractor, and Gaye responded. (Docket Entry No. 46, 47,
careful review of the pleadings, record evidence, motions,
response, and the applicable law, Gaye's motion for
summary judgment is granted as to his employment status and
denied as to the defendants' affirmative defenses.
(Docket Entry No. 46). The defendants' cross-motion is
denied. (Docket Entry No. 47). The reasons for these rulings
are explained in detail below.
Gacou is the sole proprietor of a Houston-area luxury
transportation company that operates a fleet of ten vehicles.
(Docket Entry No. 50-1 at 5, 36, 40). TJD Limo and TJD
Transportation are unincorporated business names that Gacou
registered with Harris County, Texas. (Id. at 5-6).
Gaye worked as a driver for the defendants from August 2014
to June 2017, earning a flat daily rate of $185 plus tips.
(Id. at 11, 18).
defendants required Gaye to work an “evening
shift” three to five days per week. (Id. at
31, 65-67). Gaye received driving assignments by text
messages telling him who, when, and where to pick up; the
destination; and how much to charge. (Id. at 61;
see Docket Entry No. 46-3). Gaye could do what he
pleased during downtime, including driving for ride-hailing
services like Uber, so long as he split that income with the
defendants. (Docket Entry No. 50-1 at 60). Gaye could not,
however, turn down driving assignments during a shift.
(Id. at 50).
defendants owned, insured, and maintained the business's
vehicles; and paid for fuel and carwashes. (Id. at
39). Gacou hired and fired drivers. (Id. at 72). He
also trained new drivers, including Gaye, for six months,
teaching them how to avoid traffic, navigate Houston's
airports, park the vehicles, and open doors for clients.
(Id. at 20-22, 26-28, 36, 39, 61). Gaye had to buy
water, soda, candy, newspapers, and air fresheners for the
vehicles he drove. (Id. at 40).
The Legal Standard
judgment is appropriate only 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.'” Shepherd on Behalf of Estate of Shepherd
v. City of Shreveport, 920 F.3d 278, 282-83 (5th Cir.
2019) (quoting Fed.R.Civ.P. 56(a)). “A material fact is
one that might affect the outcome of the suit under governing
law, ” and “a fact issue is genuine if the
evidence is such that a reasonable jury could return a
verdict for the non-moving party.” Renwick v. PNK
Lake Charles, L.L.C., 901 F.3d 605, 611 (5th Cir. 2018)
(quotations and citations omitted). The moving party
“always bears the initial responsibility of informing
the district court of the basis for its motion, ” and
identifying the record evidence “which it believes
demonstrate[s] the absence of a genuine issue of material
fact.” Celotex Corp. v. Catrett, 477 U.S. 317,
the non-movant bears the burden of proof at trial, ‘the
movant may merely point to the absence of evidence and
thereby shift to the non-movant the burden of demonstrating
that there is an issue of material fact warranting
trial.'” Kim v. Hospira, Inc., 709
Fed.Appx. 287, 288 (5th Cir. 2018) (alteration omitted)
(quoting Nola Spice Designs, L.L.C. v. Haydel Enters.,
Inc., 783 F.3d 527, 536 (5th Cir. 2015)). The moving
party must demonstrate the absence of a genuine issue of
material fact, but it need not negate the elements of the
nonmovant's case. Austin v. Kroger Tex., L.P.,
864 F.3d 326, 335 (5th Cir. 2017). “If the moving party
fails to meet [its] initial burden, the motion must be
denied, regardless of the nonmovant's response.”
Pioneer Expl., L.L.C. v. Steadfast Ins. Co., 767
F.3d 503, 511 (5th Cir. 2014) (quoting Kee v. City of
Rowlett, 247 F.3d 206, 210 (5th Cir. 2001)).
the moving party has met its Rule 56(c) burden, the nonmoving
party cannot survive a summary judgment motion by resting on
the mere allegations of its pleadings.” Duffie v.
United States, 600 F.3d 362, 371 (5th Cir. 2010). The
nonmovant must identify specific evidence in the record and
articulate “the precise manner in which” that
evidence supports that party's claim. Willis v. Cleco
Corp., 749 F.3d 314, 317 (5th Cir. 2014) (quoting
Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir.
1994)). “A party cannot defeat summary judgment with
conclusory allegations, unsubstantiated assertions, or only a
scintilla of evidence.” Lamb v. Ashford Place
Apartments L.L.C., 914 F.3d 940, 946 (5th Cir. 2019)
(quotation omitted). “A failure on the part of the
nonmoving party to offer proof concerning an essential
element of its case necessarily renders all other facts
immaterial and mandates a finding that no genuine issue of
fact exists.” Adams v. Travelers Indem. Co. of
Conn., 465 F.3d 156, 164 (5th Cir. 2006). In reviewing a
summary judgment motion, the court draws all reasonable
inferences in the light most favorable to the nonmoving
party. Newman v. Guedry, 703 F.3d 757, 761 (5th Cir.
Gaye's Employee Status
parties' summary judgment motions require the court to
decide whether Gaye was an employee or an independent
contractor under the FLSA. “To determine if a worker
qualifies as an employee, ” a court “focus[es] on
whether, as a matter of economic reality, the worker is
economically dependent upon the alleged employer or is
instead in business for himself.” Hopkins v.
Cornerstone Am., 545 F.3d 338, 343 (5th Cir. 2008). Five
factors guide this inquiry: “(1) the degree of control
exercised by the alleged employer; (2) the extent of the
relative investments of the worker and the alleged employer;
(3) the degree to which the worker's opportunity for
profit or loss is determined by the alleged employer; (4) the
skill and initiative required in performing the job; and (5)