United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
BROWN UNITED STATES DISTRICT JUDGE
the Court is Defendant Tara Rubsamen's Motion for Summary
Judgment with brief and appendix in support (Docs. 48-50), as
well as Plaintiff Javier Rodriguez's Response, and
Rubsamen's Reply. Rubsamen contends she is entitled to
judgment as a matter of law on Plaintiff's claims against
her because she cannot be considered an employer under the
Fair Labor Standards Act (FLSA). After considering the
pleadings, summary judgment evidence, and applicable law, the
Court grants Rubsamen's Motion for Summary Judgment.
brings this FLSA action individually, and on behalf of all
others similarly situated, against Rubsamen and two other
Defendants-Thomas McGill and Tarland, LLC. In his live
pleading, Plaintiff alleges that he was employed by the three
Defendants to work at Sol Irlandes Mexican restaurant in
Dallas. Plaintiff alleges he worked at the restaurant from
August 2006 to January 2018. He worked in various capacities,
including dish washer, kitchen prepper, and maintenance, and
worked an average of 45 hours per week. He asserts claims for
overtime wage violations.
FLSA provides that “no employer shall employ any of his
employees . . . for a workweek longer than forty hours unless
such employee receives compensation for his employment in
excess of the hours above specified at a rate not less than
one and one-half times the regular rate at which he is
employed.” 29 U.S.C. § 207(a)(1); Johnson v.
Heckmann Water Res. (CVR), Inc., 758 F.3d 627, 630 (5th
Cir. 2014). Thus, among other things, an employee bringing an
action for unpaid overtime compensation under the FLSA must
demonstrate the existence of an employer/employee
relationship during the relevant time period.
Johnson, 758 F.3d at 630. The FLSA defines
“employer” as “any person acting directly
or indirectly in the interest of an employer in relation to
an employee.” 29 U.S.C. § 203(d).
has moved for summary judgment on grounds that she is not
Plaintiff's employer under the FLSA. To be entitled to
summary judgment, a party must show there is no genuine
dispute as to any material fact and she is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a). The party
moving for summary judgment bears the initial burden of
informing the court of the basis for her motion and
identifying the portions of the record that she believes
demonstrate the absence of a genuine issue of material fact.
Meinecke v. H & R Block of Houston, 66 F.3d 77,
81 (5th Cir. 1995). If the movant meets her burden, the
burden shifts to the nonmovant to establish the existence of
a genuine issue for trial. Id. In ruling on the
summary judgment motion, this Court reviews the evidence and
the inferences to be drawn therefrom in the light most
favorable to the nonmovant. Norman v. Apache Corp.,
19 F.3d 1017, 1021 (5th Cir. 1994).
evaluate whether there is an employer/employee relationship,
the Fifth Circuit uses the “economic reality”
test. Gray v. Powers, 673 F.3d 352, 354 (5th Cir.
2012). Under this test, the Court considers whether the
alleged employer: (1) possessed the power to hire and fire
the employees, (2) supervised and controlled employee work
schedules or conditions of employment, (3) determined the
rate and method of payment, and (4) maintained employment
records. Id. at 355. Each element need not be
present in every case. Id. at 357. In cases where
there may be more than one employer, the Court must apply the
test to each individual or entity alleged to be an employer
and each must satisfy the four-part test. Id. at
contends that none of the four factors of the economic
reality test weigh in favor of her being Plaintiff's
employer. Her summary judgment evidence consists of her
affidavit and Plaintiff's deposition. According to her
affidavit, Rubsamen was an investor and member of Tarland,
the limited liability company that owned and operated Sol
Irlandes. Tarland was the employer of all employees at Sol
Irlandes. Defendant McGill was also a member of Tarland, and
he managed the day-to-day operations of the restaurant.
Rubsamen states that McGill, as restaurant manager, made all
hiring and firing decisions, supervised and controlled all
employees and their work schedules, determined the
employees' rate and method of payment, and maintained
employment records. Rubsamen states that she was not involved
in the day-to-day operations of Sol Irlandes. She
occasionally ate at the restaurant and sporadically provided
new floral arrangements for the restaurant. At no time was
she employed by Sol Irlandes. Further, Rubsamen testified
that she did not hire Plaintiff, supervise his work,
determine the rate and method of payment of his wages, sign
his paycheck, or maintain his employment records. Nor did she
do this for any employees of the restaurant.
deposition, Plaintiff testified that he worked for the
restaurant for ten years. Plaintiff testified that McGill and
Rubsamen were the owners of the restaurant; Plaintiff
believed they were husband and wife. The kitchen managers,
Juan Carlos Pantoja and Ricky Mendoza, generally hired
employees. Plaintiff was hired by Pantoja. Plaintiff
testified that Pantoja and Mendoza were his supervisors, but
they took their direction from McGill. Plaintiff requested
raises in his hourly wage from Pantoja and Mendoza. Pantoja
and Mendoza went to McGill for approval of increases in
Plaintiff's pay. McGill gave Plaintiff his paychecks.
Plaintiff quit working at the restaurant because McGill
promised to pay him money owed for overtime, but never did.
saw Rubsamen many times at the restaurant. She was not at the
restaurant as frequently as McGill. She “would just
show up to, you know, look around and see if everything was
going well.” Most of the time she spoke to the kitchen
managers. Sometimes she changed the floral arrangements. When
asked if she did additional things at the restaurant besides
floral arrangements, Plaintiff answered “no.”
Plaintiff testified that Rubsamen never directed or
supervised his work or hours of employment. McGill supervised
his work. Plaintiff did not know whether Rubsamen had any
input on hiring employees for the restaurant.
summary judgment response, Plaintiff asserts there are
genuine issues of material fact regarding whether
Rubsamen's involvement in Tarland's operations was
sufficient to make her an employer. Plaintiff relies on his
deposition, as well as Rubsamen's deposition and records
from the Texas Secretary of State for Tarland and for another
restaurant Rubsamen was involved in.
deposition, Rubsamen testified that she has a BBA in finance,
marketing, and real estate and started to pursue a
master's degree in business. She worked as a stockbroker
in the past. She met McGill in about 2000. They have a child
together, and McGill lived with Rubsamen for a period of
time. She and McGill started Tarland in about 2007. She
invested $500, 000 in Tarland. Rubsamen testified that she
visited Sol Irlandes about once a quarter to check in.
there are fact issues, Plaintiff cites the following
evidence: Rubsamen came to the restaurant many times and
visited the kitchen managers. The kitchen managers were in
charge of Plaintiff's hourly wage. Plaintiff knew
Rubsamen. Rubsamen owned the restaurant. She and McGill
started Tarland and were its only members. She invested $500,
000 in Tarland and received distributions from Tarland. She
and McGill are married and have a child. Rubsamen is the
manager of a different restaurant in McKinney, Texas.
Rubsamen visited Sol Irlandes once per quarter to see how
things were operating.
relies on Gray v. Powers to support her position. In
that FLSA case, Gray, a bartender and later a general manager
at a nightclub, sued the LLC that ran the club, as well as
Powers, a member of the LLC. Gray, 673 F.3d at 353.
Powers invested $100, 000 and supervised a remodel job of the
club. After construction was complete, Powers was not
involved in day-to-day operations of the club. Id.
Powers and other members of the LLC collectively hired and
terminated the general manager. Id. at 355. Powers
visited the club five or six times over the seventeen months
it was open. Id. at 353. Like Rubsamen, Powers
denied supervising any employee, controlling work schedules,
or maintaining employee records. Id. Powers was a
signatory on the LLC's checking account and occasionally
signed pre-printed checks. Id. at 353-54. Other
members were “much more involved in the operation of
the club.” Id. at 354. Gray admitted in a
deposition that Powers was not involved in the club's
day-to-day operations. Id. While visiting the club
socially, Powers did tell Gray once he was doing a
“great job” and twice asked Gray to serve
specific people. Id. at 354, 356. Gray could not
remember any other occasion when Powers directed his work.
Id. at 354.
Fifth Circuit analyzed the case using the economic reality
test. In analyzing the first factor, the power to hire and
fire employees, it determined that Powers's participation
in joint decisions to hire and fire general managers was not
evidence he had individual authority to control the
employment terms of lower-level employees. Id. at
355. Further such authority could not be inferred from
Powers's position as a member and officer of the LLC.
Id. Employer status may be appropriate where
operational control coincides with one's position as a
shareholder, officer, or owner. Id. As for the
second factor, supervision or control of employee work
schedules or conditions of employment, the appellate court
determined that the isolated events-Powers once told Gray he
was doing a “great job” and twice asked Gray to
serve specific people-were “too paltry” to
support an inference of control. Id. at 356-57. And
evidence that Powers occasionally signed checks for the club
did not indicate he determined employees' pay rates or
method of ...