HUGHES et al v. BURIE et al

Filing 247

ORDER denying 205 Motion for Summary Judgment. Signed by JUDGE RICHARD SMOAK on 10/9/2014. (jcw)

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IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
UTAHNA HUGHES;
JESSICA MCCLELLAN,
Plaintiffs,
v.

CASE NO. 3:12-cv-332-RS-CJK

EDMOND BURIE;
CG&P OF PENSACOLA, INC.,
JOHN BIEDERMAN; and
GAY PYRITZ,
Defendants.
_________________________________________/
ORDER
Before me are Plaintiff’s Motion for Summary Judgment (Doc. 205),
Defendant Pyritz’ Response in Opposition (Doc. 208), and Defendants John
Biederman and GC&P of Pensacola, Inc.’s Response in Opposition (Doc. 207).
The relief requested in Plaintiff’s Motion for Summary Judgment (Doc. 205) is
DENIED.
STANDARD OF REVIEW
The basic issue before the court on a motion for summary judgment 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.”

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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). The moving party has
the burden of showing the absence of a genuine issue as to any material fact, and in
deciding whether the movant has met this burden, the court must view the
movant’s evidence and all factual inferences arising from it in the light most
favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144
(1970); Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993).
An issue of fact is material “if it is a legal element of the claim under the
applicable substantive law which might affect the outcome of the case.” Wright v.
Sandestin Investments, LLC, 914 F. Supp. 2d 1273, 1278 (N.D. Fla. 2012). Thus, if
reasonable minds could differ on the inferences arising from undisputed facts, then
a court should deny summary judgment. Miranda v. B & B Cash Grocery Store,
Inc., 975 F.2d 1518, 1534 (11th Cir. 1992) (citing Mercantile Bank & Trust v.
Fidelity & Deposit Co., 750 F.2d 838, 841 (11th Cir. 1985)). However, a mere
‘scintilla’ of evidence supporting the nonmoving party’s position will not suffice;
there must be enough of a showing that the jury could reasonably find for that
party. Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson,
477 U.S. at 251).
BACKGROUND

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I will accept the facts in the light most favorable to the Defendants. See
Galvez v. Bruce, 552 F.3d 1238, 1239 (11th Cir. 2008) (citing Vinyard v. Wilson,
311 F.3d 1340, 1343 n.1 (11th Cir. 2002)). “‘All reasonable doubts about the facts
should be resolved in favor of the non-movant.’” Id. (quoting Burton v. City of
Belle Glade, 178 F.3d 1175, 1187 (11th Cir. 1999); Clemons v. Dougherty County,
684 F.2d 1365, 1368-69 (11th Cir. 1982).
Plaintiffs, former exotic dancers at a nightclub called “Escapes,” brought
suit under the Fair Labor Standards Act (“FLSA”) alleging that the Defendants
failed to pay them a proper minimum wage. Defendant Pyritz owned the club from
approximately November of 1992 until she sold her entire interest in the club to
co-defendant John Biederman on April 30, 2010. Defendant Biederman then
owned the club from approximately April 30, 2010, until February 17, 2012. On
February 17, 2012, Defendant Biederman sold the club to Defendant Burie and
non-partyTimothy McEvoy.1
According to Defendant Pyritz, Plaintiff Frey, through her estate, is the only
Plaintiff who alleges that she worked during the time Defendant Pyritz owned the
club. Doc. 208. However, Defendant Pyritz maintains that Plaintiff Frey never

1

On December 26, 2013, Default Judgment was entered against Edmond Burie for failure to comply with the
court’s order.

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worked at the club during her ownership. Doc. 208-3. None of the remaining
Plaintiffs worked at the club prior to April 30, 2010. Doc. 208.
During the time the Plaintiffs danced at Escapes, and since July 2009, the
entertainers were classified as independent contractors as opposed to employees.
Doc. 207. According to Defendant Biederman, the nightclub permitted adult
entertainers to dance on a nightly basis in exchange for the payment of a rental fee
of $5.00 per night. Id. However, the “house fee” was rarely collected in order to
accommodate the entertainers and compete with similar establishments for the best
dancers. Id. Contrary to Plaintiffs’ testimony, Defendant Biederman testified that
the entertainers were not required to “tip out” anyone at the nightclub, were not
required to pay a fee for the use of the VIP room, and were free to not only dance
at more than one club, but were also allowed to arrive at any time the club was
open to perform and could leave the club at any time without any penalty or
repercussions. Id. The only time an entertainer would be told not to return is if she
was caught engaging in an illegal activity on the premise. Id.
Other than the City of Pensacola licensing requirement, Defendants did not
require the entertainers have any dance background or formal dance training. Id.
Thus, the entertainers’ skill levels varied. Id. However, despite no formal training,
entertainers earned money through commissions on “dancer drinks,” through tips

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paid for stage dances, and through tips paid directly in connection with private
dances. Id. According to Defendants, the skill an entertainer must possess is the
ability to “sell” a fantasy and establish a rapport with the customers, not dance. Id.
Plaintiffs, on the other hand, testify that the entertainers were required to
“tip-out” certain staff including, but not limited to, the bartender and disc jockey
(DJ), were required to pay a five dollar house fee in order to work a shift, and were
required to pay a VIP room fee. Doc. 205. Additionally, according to Plaintiffs,
Defendants could hire and fire the Plaintiffs at will. Id. For instance, Defendants
required Plaintiffs to report to their shift by a certain time and work the entire shift,
and if an entertainer missed a shift she could be fired. Id. Further, Defendants
provided the facilities, music, and equipment for the Plaintiff entertainers to
perform their job duties. Id.
ANALYSIS
Under the Fair Labor Standards Act (“FLSA”), “employee” is defined as
“any individual employed by an employer.” 29 U.S.C. § 203(e)(1) . The FLSA
defines “employ” as “to suffer or permit to work.” 29 U.S.C. § 203(g) . An
“employer,” under the FLSA, is “any person acting directly or indirectly in the
interest of an employer in relation to an employee…” 29 U.S.C. § 203(d). Plaintiffs

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argue that they are employees for purposes of the FLSA, and that Defendants
improperly classified them as independent contractors. Doc. 205.
In order to determine if an individual is an employee for purposes of the
FLSA, courts have used the “economic realities” test. The “economic realities” test
includes the following factors:
(1) the nature and degree of the alleged employer’s control as to the manner
in which the work is to be performed;
(2) the alleged employee's opportunity for profit or loss depending upon his
managerial skill;
(3) the alleged employee's investment in equipment or materials required for
his task, or her employment of workers;
(4) whether the service rendered requires a special skill;
(5) the degree of permanency and duration of the working relationship;
(6) the extent to which the service rendered is an integral part of the alleged
employer’s business.
See Yilmaz v. Mann, 13-80351-CV, 2014 WL 1018006 (S.D. Fla. Mar. 17, 2014)
(citing Scantland v. Jeffry Knight, Inc., 721 F.3d 1308, 1313 (11th Cir. 2013))
(“The inquiry is whether the alleged employee has ‘economic dependence’ on his
or her alleged employer.”).
At the summary judgment stage a court must apply the economic realities
test to the material facts of the case. However, in this case, almost every material
fact is disputed. Summary judgment at this time is inappropriate.
CONCLUSION

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Accordingly, the relief requested in Plaintiff’s Motion for Summary
Judgment (Doc. 205) is DENIED.

ORDERED on October 9, 2014.

/S/ Richard Smoak
RICHARD SMOAK
UNITED STATES DISTRICT JUDGE