Murillo et al v. Coryell County Tradesmen LLC et al

Filing 328

ORDER denying 259 Motion for Summary Judgment. Signed by Judge Nannette Jolivette Brown. (jrc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
NANCY MURILLO, et al.

CIVIL ACTION

VERSUS

NO. 15-3641

CORYELL COUNTY TRADESMEN, LLC, et
al.

SECTION: “G”(1)

ORDER
In this litigation, Plaintiffs, approximately 160 individuals hired to work on a construction
and renovation project located at 225 Baronne Street in New Orleans, Louisiana, allege that
Defendants did not pay overtime wages or minimum wages in violation of the Fair Labor Standards
Act (“FLSA”).1 Pending before the Court is Defendant Ronald Franks Construction Company,
LLC’s (‘Ronald Franks”) “Motion for Summary Judgment.”2 Having considered the motion, the
memoranda in support and in opposition, and the applicable law, the Court will deny the motion.
I. Background
A.

Factual Background
This lawsuit arises from the renovation of a luxury hotel and apartment building in

downtown New Orleans named “The Strand” at 225 Baronne Street (“the Project”).3 Plaintiffs
allege that they are mostly migrant workers who performed the renovation work and were not paid

1

Rec. Doc. 48; Rec. Doc. 52-1 at 1.

2

Rec. Doc. 259.

3

Rec. Doc. 48 at 3.

1

minimum wages or overtime wages while working “grueling” 70-hour workweeks.4 Plaintiffs
further contend that their recorded hours were often “adjusted” to reflect shorter work periods so
that Defendants Roy Anderson Corporation (“Roy Anderson”), Ronald Franks, Coryell County
Tradesmen (“CCT”), CC Labor, LLC (“CC Labor”), Paul Isaacks, Brandon Isaacks, and Brent
Isaacks could pay them less.5
Defendants CCT and CC Labor are alleged to be two family-run construction companies
owned by Defendants Paul Isaacks, Brandon Isaacks, and Brent Isaacks.6 Defendant Roy Anderson
is alleged to be one of the general contractors that employed Plaintiffs, and Ronald Franks and
CCT were two of the subcontractors on the Project.7 Defendant Travelers Casualty and Surety
Company of America (“Travelers”) is alleged to have contracted to pay the obligations of Roy
Anderson with respect to the work done on the construction project at issue in this case.8
B.

Procedural Background
Plaintiffs Nancy Murillo, Evelyn Mejia, Ambrocio Benito Castro, and Mechlor Acevedo

filed a complaint on August 19, 2015, against Defendants CCT, CC Labor, Brandon Isaacks, Brent
Isaacks, and Paul Isaacks.9 With leave of Court, on February 18, 2016, Plaintiffs filed an amended
complaint, adding additional plaintiffs and adding Ronald Franks, Roy Anderson, and Travelers

4

Id. at 3–4.

5

Id. at 4.

6

Id. at 5.

7

Id. at 5–6.

8

Id. at 6–7.

9

Rec. Doc. 1.

2

as Defendants.10 Plaintiffs filed a second amended complaint, with leave of Court, on May 13,
2016.11
On July 12, 2016, Roy Anderson filed an answer to Plaintiffs’ complaint and a crossclaim
and third-party demand against Defendant Ronald Franks and Third-Party Defendant National
American Insurance Company (“NAIC”), respectively.12 On December 8, 2016, Roy Anderson
and Travelers filed a counterclaim against Plaintiffs.13
On December 20, 2016, Ronald Franks filed its first motion for summary judgment. 14 On
December 27, 2016, Plaintiffs filed an opposition pursuant to Federal Rule of Civil Procedure
56(d), in which Plaintiffs requested that the Court defer ruling on Ronald Franks’ motion for
summary judgment to allow Plaintiffs more time to conduct discovery.15 On January 19, 2017, the
Court denied Ronald Franks’ motion for summary judgment without prejudice pursuant to Rule
56(d) of the Federal Rules of Civil Procedure in order to allow the parties additional time to
conduct discovery.16
On April 24, 2017, Ronald Franks filed the instant motion for summary judgment,17 in

10

Rec. Doc. 19.

11

Rec. Doc. 48.

12

Rec. Doc. 92 at 15.

13

Rec. Doc. 216.

14

Rec. Doc. 221.

15

Rec. Doc. 225.

16

Rec. Doc. 240.

17

Rec. Doc. 259.

3

which it argues that Plaintiffs have conducted the additional discovery requested and that a ruling
on Ronald Franks’ motion for summary judgment is therefore appropriate.18 On May 2, 2017,
Plaintiffs filed an opposition.19 On May 9, 2017, with leave of Court, Ronald Franks filed a reply.20
On May 18, 2017, with leave of Court, Plaintiffs filed a sur-reply.21 On June 14, 2017, with leave
of Court, Ronald Franks filed a supplemental reply.22 On June 15, 2017, Plaintiffs filed a
supplemental reply.23
II. Parties’ Arguments
A.

Ronald Franks’ Arguments in Support of the Motion for Summary Judgment
In its motion, Ronald Franks argues that Plaintiffs cannot prove that Ronald Franks was

either the Plaintiffs’ employer or joint employer while working on the Project, and therefore
summary judgment should be granted dismissing Plaintiffs’ FLSA claims against Ronald Franks.24
According to Ronald Franks, Defendant Roy Anderson, as the general contractor for the 225
Baronne Street Project, entered into three contracts with Ronald Franks to perform certain work
on the Project as a subcontractor.25 Thereafter, Ronald Franks avers that it entered into a sub-

18

Rec. Doc. 259-1 at 3–4.

19

Rec. Doc. 272.

20

See Rec. Docs. 278, 305.

21

Rec. Doc. 300.

22

Rec. Doc. 316.

23

Rec. Doc. 319.

24

Rec. Doc. 259-1 at 1.

25

Id. at 2.

4

subcontract with CCT for the same work set forth in Ronald Franks’ subcontracts with Roy
Anderson, and that CCT staffed the Project with workers contracted through CC Labor. 26 Ronald
Franks asserts that subsequently, Roy Anderson became aware that CC labor did not possess the
appropriate insurance for the Project, and so CCT began paying the workers directly rather than
paying CC Labor.27
Ronald Franks contends that in order to bring a FLSA claim for unpaid overtime or a
violation of minimum wage requirements, Plaintiffs must show the existence of an employeremployee relationship between Plaintiffs and Ronald Franks during the time in question.28 Ronald
Franks argues that under the four factor “economic reality” test established by the Fifth Circuit,
Plaintiffs cannot show that Ronald Franks was their employer.29 First, Ronald Franks avers that
Plaintiff cannot show that Ronald Franks had the power to hire and fire them.30 Ronald Franks
asserts that it did not hire or fire any of the laborers for whom CCT contracted through CC Labor
or another staffing agency, Rimax Contractors, Inc.31 Ronald Franks points out that Plaintiffs
repeatedly state in their Declarations that they were hired by CCT representatives, and do not state

26

Id.

27

Id.

28

Id. at 5.

29
Id. at 5–6. According to Ronald Franks, the four factors of the “economic reality” test are 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. (citing Gray v. Powers, 673 F.3d at 354–55 (5th Cir. 2012); Orozco v. Plackis, 757 F.3d
445, 448 (5th Cir. 2014)).
30

Id. at 6.

31

Id.

5

that Ronald Franks participated in the hiring process.32
Second, Ronald Franks asserts that Plaintiffs cannot establish that Ronald Franks
supervised or controlled their work schedules or conditions of employment.33 According to Ronald
Franks, Roy Anderson created the master schedule for the Project that was followed by the
subcontractors.34 Ronald Franks contends that the daily start time for Plaintiffs “was dictated by
when elevators were made available by the general contractor to take the workers to the floors on
which the subcontractor needed to work.”35 Ronald Franks argues that Plaintiffs have no evidence
that Ronald Franks participated in scheduling the Project or controlling the elevators, or otherwise
supervising or controlling Plaintiffs’ work schedules under CCT.36 Ronald Franks points out that
several Declarations filed by Plaintiffs in support of other motions make clear that they were
supervised and controlled by CCT employees, and not by Ronald Franks.37
Third, Ronald Franks contends that Plaintiffs do not have evidence that Ronald Franks
determined how much to pay Plaintiffs or their method of payment.38 According to Ronald Franks,
Defendant Brandon Issacks of CCT stated in his Declaration that Ronald Franks did not set the

32

Id.

33

Id. at 7.

34

Id.

35

Id.

36

Id.

37

Id. at 8.

38

Id.

6

pay rate for workers contracted for by CCT through Rimax and CC Labor. 39 Moreover, Ronald
Franks avers that Plaintiffs have testified that payments to all workers were made by CCT.40
Fourth, Ronald Franks asserts that there is no evidence that it maintained any employment records
for Plaintiffs.41
Furthermore, Ronald Franks argues that Plaintiffs have not shown that Ronald Franks was
a joint employer of Plaintiffs.42 Ronald Franks avers that the test for joint employer status is also
the “economic reality” test, and, as stated supra, Ronald Franks contends that Plaintiffs cannot
establish any of the four elements to demonstrate that Ronald Franks was a joint employer.43
B.

Plaintiffs’ Arguments in Opposition to the Motion for Summary Judgment
In opposition, Plaintiffs argue that Ronald Franks’ motion for summary judgment should

be denied, because Plaintiffs contend that they have presented sufficient evidence that: (1) Ronald
Franks was CCT’s employer, and therefore was Plaintiffs’ employer; and/or (2) that Ronald Franks
was Plaintiffs’ employer pursuant to the four factor “economic reality” test.44 Plaintiffs aver that
either theory is sufficient grounds to assert a FLSA claim against Ronald Franks and preclude
summary judgment here.45

39

Id.

40

Id. at 9.

41

Id.

42

Id.

43

Id. at 9–10.

44

Rec. Doc. 272 at 1.

45

Id.

7

Ronald Franks as CCT’s employer

a.

First, Plaintiffs assert that Ronald Franks fails to recognize that it can be held liable under
FLSA if Ronald Franks is found to be CCT’s employer. 46 Plaintiffs contend that the Department
of Labor published “Administrator’s Interpretation No. 2016-1,” which Plaintiffs argue recgonizes
that an “intermediary employer,” like CCT, can be the employee of a “higher-tiered subcontractor”
and potential joint employer, like Ronald Franks, and thus all of the intermediary employer’s
employees are the employees of the potential joint employer too.47 Plaintiffs argue that in order to
determine if CCT is an employee of Ronald Franks, the Court must analyze their relationship under
the “economic reality” test.48
According to Plaintiffs, Ronald Franks’ “domination of the working relationship with CCT
was so thorough, so complete,” that they constituted CCT’s “employer” under FLSA. 49 For
example, Plaintiffs point out that Ronald Franks and CCT have worked on five jobs together over
a five year period, and during this time Ronald Franks paid for all of CCT’s office expenses for its
office in Texas where CCT coordinates its jobs, only some of which also involve Ronald Franks.50
In particular, Plaintiffs argue that Ronald Franks paid for: (1) CCT’s office expenses, including
office supplies, computer software, water and electric bills, telephones, internet, and trash removal;

46

Id.

47

Id. at 6 (quoting Administrator’s Interpretation No. 2016-1 (Dep’t of Labor Jan. 20, 2016)).

48

Id. at 6–7.

49

Id. at 1.

50

Id.

8

(2) a salary set by Ronald Franks for CCT management; (3) weekly labor costs for CCT’s workers;
(4) CCT’s general liability, worker’s compensation, and health insurance plans; and (5)
apartments, airfare, and luggage expenses for CCT.51
Plaintiffs also contend that Ronald Franks received a daily email with the clock-in and
clock-out times of each Plaintiff and that Ronald Franks had the right to question or reduce the
hours of Plaintiffs.52 According to Plaintiffs, CCT was dependent on Ronald Franks to provide
week-to-week infusions of cash without which CCT could not pay Plaintiffs, and that Ronald
Franks could determine how often CCT would be paid.53 Plaintiffs point out that Ronald Franks
had the power to command CCT to not bring workers to the jobsite, which Plaintiffs allege was
used during disputes between Ronald Franks and Roy Anderson.54 Plaintiffs aver that CCT would
report daily to Ronald Franks’ management during the Project at issue, and that Ronald Franks
kept their own project manager onsite to also report daily to Ronald Franks’ management.55
Plaintiffs contend that Ronald Franks and CCT also shared attorneys to represent them in issues
involving the Project.56
Moreover, Plaintiffs argue that none of these items were governed by the subcontract
between Ronald Franks and CCT, and that Ronald Franks continued to pay for all of these items

51

Id. at 2–3.

52

Id. at 4.

53

Id. at 4–5.

54

Id. at 4.

55

Id.

56

Id. at 5.

9

“even after the contract price for the ‘subcontract’ was exhausted” almost one year before the
Project was completed.57 Plaintiffs also aver that CCT did not have a Louisiana contractor’s license
and thus could not work on the Project without Ronald Franks.58 Plaintiffs assert that it is
immaterial to this issue that Plaintiffs were unaware of Ronald Franks’ role in the Project, as it is
the relationship between CCT and Ronald Franks that governs whether Plaintiffs can be considered
“employees” of Ronald Franks.59 Thus, Plaintiffs assert that they have produced sufficient
evidence to show that Ronald Franks was CCT’s employer under the “economic reality” test, and
thus Ronald Franks was Plaintiffs’ employer.60
b.

Ronald Franks as “joint employer” of Plaintiffs

Additionally, Plaintiffs argue that Ronald Franks is also liable under the additional
“economic reality” theory that Ronald Franks was the “joint employer” of Plaintiffs.61 First,
Plaintiffs assert that although Ronald Franks could not “physically run a Plaintiff [off] the job,”
Ronald Franks “exerted considerably more influence from afar” on the hiring and firing of
Plaintiffs.62 For example, Plaintiffs point out that Ronald Franks could “simply not pay a particular
Plaintiff,” and that without Ronald Franks’ weekly cash infusions, CCT could not pay any

57

Id.

58

Id.

59

Id. at 7–8.

60

Id. at 7.

61

Id. at 8.

62

Id.

10

Plaintiff.63 Second, Plaintiffs contend that Ronald Franks’ control of the cash flow with CCT
created a power to control Plaintiffs’ work schedules and conditions of employment. 64 According
to Plaintiffs, Ronald Franks “sometimes told CCT to pull all workers off of the job,” and that
Ronald Franks dictated to CCT when they wanted more manpower on the job.65 Plaintiffs assert
that CCT acknowledged that Ronald Franks could do so because “CCT works for [Ronald
Franks].”66 Plaintiffs allege that Ronald Franks also had a supervisor onsite monitoring the names
and number of CCT workers to compare to the daily clock-in and clock-out reports Ronald Franks
would receive.67
Third, Plaintiffs state that while CCT may have controlled the rate of pay for each Plaintiff,
Ronald Franks controlled the weekly budget allocated to CCT and the timing of the payments to
Plaintiffs.68 Plaintiffs point to multiple emails between CCT and Ronald Franks that Plaintiffs
argue show that CCT was “constantly at the mercy of [Ronald Franks’] decision to release funding
or send checks.”69 According to Plaintiffs, Ronald Franks “also requested the check register for the
checks issued to CCT’s employees,” and CCT could not bankroll the weekly pay of Plaintiffs without

63

Id. at 8–9.

64

Id. at 9.

65

Id.

66

Id.

67

Id.

68

Id.

69

Id. at 10.

11

Ronald Franks.70
Fourth, Plaintiffs contend that Ronald Franks did maintain some employment files on

Plaintiffs, as Ronald Franks received daily reports of each Plaintiffs’ hours on the job.71 Moreover,
Plaintiffs argue that Ronald Franks received weekly reports outlining Plaintiffs’ rate of pay, their
hours worked, and their employee ID numbers.72 Plaintiffs aver that Ronald Franks also dictated
how CCT administered their payroll, as evidenced by Ronald Franks’ demand that CCT move its
employees from working under CC Labor to CCT itself.73
In sum, Plaintiffs argue that the Fifth Circuit has recognized that the definition of
“employer” is expansive, and that it prevents those who exert actual control over a worker’s
employment from skirting FLSA by using middlemen and subcontractors to violate wage laws.74
C.

Ronald Franks’ Arguments in Further Support of the Motion for Summary Judgment
In its reply, Ronald Franks first argues that Plaintiffs failed to properly authenticate most

of their exhibits attached to their opposition memorandum, and therefore they should be stricken
by the Court.75 Second, Ronald Franks contends that the Administrator’s Interpretation issued by
the United States Department of Labor does not create a new theory of liability, but merely

70

Id.

71

Id.

72

Id.

73

Id.

74

Id. at 11.

75

Rec. Doc. 305 at 1.

12

addresses issues of joint employment.76
Ronald Franks as CCT’s employer

a.

Third, Ronald Franks avers that Plaintiffs “scatter around a lot of random facts” but have
not established that Ronald Franks was either CCT or Plaintiffs’ “employer” under FLSA.77
According to Ronald Franks, the subcontract between Ronald Franks and CCT required CCT to
submit weekly invoices to Ronald Franks for payroll and materials.78 Ronald Franks asserts that
delays on the Project caused the costs of performance to exceed the original contract amount,
which forced Ronald Franks to pay for CCT’s expenses related to the Project so that CCT could
perform the contract and stay in business.79 If CCT defaulted, Ronald Franks contends, it could
have resulted in significantly increased costs to Ronald Franks.80
Ronald Franks argues that while it did pay CCT a lump sum amount for its overhead
expenses, it did not pay those expenses directly or tell CCT where to obtain its materials and
services.81 Ronald Franks points out that Brandon Isaacks of CCT testified that he was not a W-2
employee of Ronald Franks, and that he was not paid directly by Ronald Franks; rather, Ronald
Franks issue a check to CCT, and CCT thereafter issue a check to Brandon Isaacks. 82

76

Id. at 2.

77

Id. at 3.

78

Id.

79

Id.

80

Id. at 3–4.

81

Id. at 4.

82

Id.

13

b.

Ronald Franks as “joint employer” of Plaintiffs

Next, with regard to the first factor under the “economic reality” test, Ronald Franks asserts
that Plaintiffs acknowledge that Ronald Franks could not hire or fire Plaintiffs, and instead rely on
an argument that Ronald Franks could choose to not pay Plaintiffs.83 However, Ronald Franks
argues that there is no evidence that Ronald Franks directly paid any Plaintiffs or ever controlled
whether any Plaintiff got paid.84 According to Ronald Franks, “[w]hile it is correct that [Ronald
Franks] paid CCT on a weekly basis for its labor costs incurred, the mere fact that if [Ronald
Franks] did not pay CCT, there might not be enough money for CCT to pay its workers, does not
mean that RFC had the ability to fire any individual workers.”85 Ronald Franks points to the
affidavit of Jaime Franks, a manager of Ronald Franks, and Brandon Issacks of CCT, which
Ronald Franks argues shows that it did not have the power to hire or fire Plaintiffs.86
With regard to the second factor, Ronald Franks asserts that Plaintiffs have not offered any
evidence that Ronald Franks controlled Plaintiffs’ work schedules or conditions of employment.87
Ronald Franks avers that the one situation pointed to by Plaintiffs when Ronald Franks directed
CCT to pull its workers off the job was because Roy Anderson had stopped paying Ronald Franks,
and Ronald Franks halted work on the Project.88 Moreover, Ronald Franks contends that the

83

Id. at 5.

84

Id. a

85

Id. at 5–6.

86

Id. at 6.

87

Id.

88

Id.

14

presence of its employee on the Project site to monitor the number of workers does not establish
that Ronald Franks controlled the work schedules or employment conditions of Plaintiffs.89 Ronald
Franks argues that Plaintiffs also rely on evidence of emails between CCT and Ronald Franks, but
that because these were not properly authenticated, the Court should disregard this evidence.90
With regard to the third factor, Ronald Franks contends that Plaintiffs “essentially concede
that [Ronald Franks] did not determine the rate and method of pay for” Plaintiffs, and Plaintiffs
have not offered any evidence that Ronald Franks established a weekly labor budget for CCT.91
Rather, Ronald Franks argues that, pursuant to the terms in the subcontract, Ronald Franks merely
paid CCT for its labor and materials costs on a weekly basis, and thus Ronald Franks avers it did
not, as Plaintiffs suggest, control how often CCT would pay Plaintiffs.92 Ronald Franks again
contends that Plaintiffs rely on a number of unauthenticated emails between Ronald Franks and
CCT in support of Plaintiffs’ argument that Ronald Franks controlled the rates and methods of
pay, and that these exhibits should be stricken.93
Finally, Ronald Franks argues that, “[w]hile it is true that . . . [Ronald Franks] received a
daily email generated by CCT’s time tracking system with clock-in and clock-out reports,” this
does not constitute maintaining employment files under the fourth prong of the economic realities

89

Id. at 7.

90

Id.

91

Id.

92

Id. at 8.

93

Id.

15

test.94 Ronald Franks asserts that there is no evidence that Ronald Franks controlled any documents
typically associated with employment files, such as job applications, social security cards, IDs,
and tax information.95 Ronald Franks avers that Plaintiffs only offer unauthenticated evidence that
Ronald Franks ordered CCT to move its employees from under CC and CCT or that Ronald Franks
received weekly reports of Plaintiffs’ rate of pay, hours worked, and employee ID numbers, and
therefore that evidence should be disregarded.96
D.

Plaintiffs’ Arguments in Further Opposition to the Motion
In their sur-reply, Plaintiffs point out that Ronald Franks’ request to strike Plaintiffs’

exhibits relies on an old version of Federal Rule of Civil Procedure 56, and that, following a 2010
amendment, summary judgment evidence no longer needs to be authenticated.97 According to
Plaintiffs, Rule 56 only requires that “materials cited to support or dispute a fact need only be
capable of being presented in a form that would be admissible in evidence.”98 Here, Plaintiffs
argue that the evidence to which Ronald Franks objects as unauthenticated, such as emails, text
messages, and deposition testimony, can all easily be authenticated at trial by witness testimony
and are admissible under Federal Rule of Evidence 901.99
Next, Plaintiffs assert that they did not offer the Department of Labor’s Administrator’s

94

Id. at 8–9.

95

Id. at 9.

96

Id.

97

Rec. Doc. 300 at 1.

98

Id. (citing LSR Consulting, LLC v. Wells Fargo Bank, N.A., 835 F.3d 530, 534 (5th Cir. 2016)).

99

Id. at 1–2.

16

Interpretation as a “new theory,” but rather as further authority related to the definition of the
ambiguous term “employ” under FLSA.100 Plaintiffs contend it is appropriate to defer to an
agency’s reasonable interpretation of ambiguous statutes.101
E.

Ronald Franks’ Arguments in Further Support of the Motion
In response, Ronald Franks points out that the Department of Labor’s Administrator’s

Interpretation No. 2016-1 cited by Plaintiffs was withdrawn by the Secretary of Labor on June 7,
2017.102 Moreover, Ronald Franks contends that the Administrator’s Interpretation No. 2016-1
was promulgated after this litigation began and does not apply retroactively.103 Therefore, Ronald
Franks argues that it should not be considered by the Court here.104
Ronald Franks concedes that Plaintiffs “are correct” that Ronald Franks’ arguments on the
authentication of evidence relied on the standards for summary judgment used prior to the 2010
amendments to Rule 56.105 Nonetheless, Ronald Franks argues that even considering Plaintiffs’
evidence, Plaintiffs have not shown that Ronald Franks was their employer or joint employer. 106
Ronald Franks contends that Plaintiffs’ evidence does not support the propositions asserted by

100

Id. at 2.

101

Id. at 3.

102

Rec. Doc. 316 at 1–2.

103

Id. at 2 (citing Castellanos-Contreras v. Decatur Hotels, LLC, 622 F.3d 393, 401 (5th Cir. 2010)).

104

Id.

105

Id.

106

Id.

17

Plaintiffs.107 For example, Ronald Franks avers that in support of Plaintiffs’ proposition that
Ronald Franks would have a supervisor onsite monitoring the names and numbers of CCT workers
and comparing it to the daily clock-in and clock-out reports, Plaintiffs only cite to an email from
Ronald Franks that states “our guy on site needs a copy of the sign in sheet daily.” 108 Regardless,
Ronald Franks argues, this does not show that Ronald Franks controlled Plaintiffs’ work schedule
or conditions of employment.109
Ronald Franks contends that while Plaintiffs’ evidence shows that Ronald Franks requested
the check register for the checks issued to CCT’s employees, it does not show that Ronald Franks
ever received the check register, or how this demonstrates that Ronald Franks determined
Plaintiffs’ rates and method of pay.110 Similarly, Ronald Franks argues that Plaintiffs’ evidence
does not support the assertion that Ronald Franks ordered CCT to move employees from CC Labor
to CCT, as the email evidence only shows that it was Ronald Franks’ understanding that the
workers had been switched over to CCT already. 111 Moreover, Ronald Franks avers that this
evidence does not show that Ronald Franks maintained employment files for Plaintiffs.112
F.

Plaintiffs’ Arguments in Further Opposition to the Motion
In response, Plaintiffs assert that the withdrawal of the Department of Labor’s 2016

107

Id. at 3.

108

Id.

109

Id. at 4.

110

Id.

111

Id. at 5.

112

Id.

18

Administrator’s Interpretation by the current administration does not change Plaintiffs’ theory that
they were employed by Ronald Franks.113 Plaintiffs aver that the main reason they cited to one
paragraph of a fifteen-page Administrator’s Interpretation is because it happened to use a
hypothetical example that reflects the exact relationship between CCT and Ronald Franks, i.e. “a
drywall subcontractor [that] is not actually an independent contractor but is an employee of [a]
higher-tier contractor.”114 Plaintiffs assert that this one paragraph discussed the idea of a single
shared employer rather than a joint employer, and thus the withdrawal of an Administrator’s
Interpretation that dealt with joint employment does not affect Plaintiffs’ arguments here based on
Fifth Circuit case law.115
For example, Plaintiffs assert that in Castillo v. Givens, the Fifth Circuit found that a farm
owner who had contracted with a separate individual to provide the farm owner with laborers was
the employer of the laborers too.116 There, Plaintiffs argue that the Fifth Circuit held that if the
middleman was the employee of the farm owner, then the plaintiff field workers were also the farm
owner’s employees.117 According to Plaintiffs, the Fifth Circuit noted that the farm owner did not
pay the middleman enough for the middleman himself to pay the workers’ minimum wage: “The
economic reality of the situation was that the workers were dependent upon defendant—not [the

113

Rec. Doc. 319 at 1.

114

Id.

115

Id. at 2.

116

Id. (citing Castillo v. Givens, 704 F.2d 181 (5th Cir. 1983)).

117

Id. at 3.

19

middleman]—to pay them the minimum wage.”118
Here, Plaintiffs argue that they have presented evidence that CCT was powerless to pay
Plaintiffs without Ronald Franks’ funds, and thus if Ronald Franks did not pay overtime, then CCT
could not either.119 According to Plaintiffs, Ronald Franks could also immediately demand that all
CCT laborers halt work on the Project, and without Ronald Franks’ contractor’s license, CCT
could not have worked on the Project.120 Plaintiffs assert that Ronald Franks’ argument disputing
the interpretations of the evidence provided underscores the fact that there are disputed issues of
material fact here precluding summary judgment. 121
III. Law and Analysis
A.

Legal Standard for Motions for Summary Judgment
Summary judgment is appropriate when the pleadings, the discovery, and any affidavits

show that “there is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.”122 When assessing whether a dispute as to any material fact exists, the court
considers “all of the evidence in the record but refrains from making credibility determinations or
weighing the evidence.”123 All reasonable inferences are drawn in favor of the nonmoving party,

118

Id.

119

Id. at 4.

120

Id.

121

Id.

122
Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986); Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
123

Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008).

20

but “unsupported allegations or affidavits setting forth ‘ultimate or conclusory facts and
conclusions of law’ are insufficient to either support or defeat a motion for summary judgment.”124
If the record, as a whole, “could not lead a rational trier of fact to find for the non-moving party,”
then no genuine issue of fact exists and the moving party is entitled to judgment as a matter of
law.125 The nonmoving party may not rest upon the pleadings, but must identify specific facts in
the record and articulate the precise manner in which that evidence establishes a genuine issue for
trial.126
The party seeking summary judgment always bears the initial responsibility of informing
the Court of the basis for its motion and identifying those portions of the record that it believes
demonstrate the absence of a genuine issue of material fact. 127 Thereafter, the nonmoving party
should “identify specific evidence in the record, and articulate” precisely how that evidence
supports his claims.128 To withstand a motion for summary judgment, the nonmoving party must
show that there is a genuine issue for trial by presenting evidence of specific facts. 129 The
nonmovant’s burden of demonstrating a genuine issue of material fact is not satisfied merely by
creating “some metaphysical doubt as to the material facts,” “by conclusory allegations,” by

124

Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); Little, 37 F.3d at 1075.

125

Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986).

126

See Celotex, 477 U.S. at 325; Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).

127

Celotex, 477 U.S. at 323.

128

Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994), cert. denied, 513 U.S. 871 (1994).

129

Bellard v. Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012) (citing Anderson v. Liberty, 477 U.S. 242, 248–

49 (1996)).

21

“unsubstantiated assertions,” or “by only a scintilla of evidence.”130 Rather, a factual dispute
precludes a grant of summary judgment only if the evidence is sufficient to permit a reasonable
trier of fact to find for the nonmoving party. Hearsay evidence and unsworn documents that cannot
be presented in a form that would be admissible in evidence at trial do not qualify as competent
opposing evidence.131
B.

Analysis
In its motion for summary judgment, Ronald Franks argues that Plaintiffs cannot

demonstrate that Ronald Franks was Plaintiffs’ “employer” under the “economic reality” test, and
therefore Plaintiffs’ claims under FLSA against Ronald Franks should be dismissed. 132 In
opposition, Plaintiffs argue that they have presented sufficient evidence to create genuine issues
of material fact under two applicable theories that, according to Plaintiffs, permit them to assert a
FLSA claim against Ronald Franks: (1) that Ronald Franks was the employer of CCT and therefore
was also the employer of Plaintiffs; and/or (2) that Ronald Franks was Plaintiffs’ employer for
purposes of FLSA under the four factor “economic reality” test.133 As stated infra, because the
Court finds that Plaintiffs have presented sufficient evidence that Ronald Franks constituted
Plaintiffs’ employer pursuant to the “economic reality” test to defeat Ronald Franks’ motion for

130

Little, 37 F.3d at 1075.

131

Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987); Fed. R .Civ. P. 56(c)(2).

132

Rec. Doc. 259-1 at 1.

133

Rec. Doc. 272 at 1.

22

summary judgment on the same issue, the Court need not address Plaintiffs’ additional argument
that Ronald Franks constitutes CCT’s employer.
Additionally, as a preliminary matter, the Court notes that Ronald Franks initially argued
that the exhibits attached to Plaintiffs’ opposition are unauthenticated and therefore should not be
considered by the Court here.134 However, as Ronald Franks subsequently conceded,135 Federal
Rule of Civil Procedure 56(c)(2) provides that a party “may object that the material cited to support
or dispute a fact cannot be presented in a form that would be admissible in evidence.”136 Here,
Plaintiffs’ exhibits, such as witness depositions and emails between Defendants, could each be
authenticated at trial and presented in a form that would be admissible in evidence. Accordingly,
the Court finds that consideration of Plaintiffs’ exhibits here is proper.
In general, FLSA requires certain covered employers to pay their employees a minimum
wage and provide overtime wages.137 FLSA defines “employer” as “any person acting directly or
indirectly in the interest of an employer in relation to an employee,”138 and an “employee” as “any

134

Rec. Doc. 305 at 1.

See Rec. Doc. 316 at 2 (Ronald Franks acknowledging that “Plaintiffs are correct that” their objections
regarding the authenticity of Plaintiffs’ exhibits were “based on the standards applicable to summary judgment prior
to the 2010 amendments to Federal Rule of Civil Procedure 56”).
135

136

Fed. R. Civ. P. 56(c)(2) (emphasis added).

137

See 29 U.S.C. § 206(a); 29 U.S.C. § 207(a)(1).

138

29 U.S.C. § 203(d).

23

individual employed by an employer.”139 The Supreme Court has instructed that the FLSA’s
definition of “employer” is to be interpreted expansively.140
In the Fifth Circuit, courts apply the “economic reality” test to determine whether an
employer/employee relationship exists for the purposes of FLSA.141 To determine whether an
entity is considered an “employer” under FLSA, courts must consider 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.”142 The Fifth Circuit has held that the
“touchstone of economic reality in analyzing a possible employee/employer relationship for
purposes of FLSA is dependency.”143 When more than one potential employer is at issue, the
economic reality test is applied to each potential employer individually to determine if that
individual or entity satisfies the test.144 No one factor is necessarily determinative, but the absence
of all factors is fatal to the inquiry of whether an employment relationship exists.145 Whether a

139

29 U.S.C. § 203(e)(1).

140

Falk v. Brennan, 414 U.S. 190, 195 (1973).

141
Gray v. Powers, 673 F.3d 352, 354 (5th Cir. 2012) (citing Williams v. Henagan, 595 F.3d 610, 620 (5th
Cir. 2010); Watson v. Graves, 909 F.2d 1549, 1553 (5th Cir. 1990)); Martin v. Spring Break ′83 Prods., L.L.C., 688
F.3d 247, 251 (5th Cir. 2012).
142

Gray, 673 F.3d at 355 (quoting Williams, 595 F.3d at 620).

143

Weisel v. Singapore Joint Venture, Inc., 602 F.2d 1185, 1189 (5th Cir. 1979).

144

Id.

145

Gray, 673 F.3d at 357; Nieto, 2016 WL 6962513, at *9; see also Rutherford Food Corp. v. McComb, 331
U.S. 722, 730 (1947) (“We think, however, that the determination of the relationship does not depend on such isolated
factors but rather upon the circumstances of the whole activity.”); Orozco v. Plackis, 757 F.3d 445, 448 (5th Cir. 2014)
(“However, a party need not establish each element in every case.”); Gil v. De Laune Drilling Serv., Ltd., No. 16-71,
2016 WL 5394261, at *2 (S.D. Tex. Sept. 27, 2016) (denying motion for summary judgment on the issue of employer

24

party is an employer for purposes of the FSLA is “essentially a question of fact.”146 The Court
will now proceed to discuss each factor in turn.
a.

Power to hire and fire the employees

With regard to the first factor of whether Ronald Franks had the power to hire and fire
Plaintiffs, Plaintiffs appear to concede that Ronald Franks “may not have been present at the
Project to physically run a Plaintiff [off] the job,” but argue that Ronald Franks “exerted
considerably more influence from afar.”147 In support of this contention, Plaintiffs point to
evidence of CCT’s dependence on Ronald Franks’ weekly cash infusions to pay their overhead
and labor costs, which Plaintiffs contend means that Ronald Franks had the power to “simply not
pay a particular Plaintiff” or to stop providing CCT with funds each week, “without which no one
would be paid.”148 In response, Ronald Franks argues that this “does nothing to establish that
[Ronald Franks] had the ability to hire and fire the plaintiffs,” and point out that Plaintiffs
acknowledged that both Ronald Franks and CCT submitted affidavits stating that Ronald Franks
did not have the power to fire Plaintiffs.149 Ronald Franks avers that “[w]hile it is correct that

status when at least two factors under the “economic reality” test support a finding that the defendant was a FLSA
employer during the relevant time period).
146

Donovan v. Sabine Irrigation Co., 695 F.2d 190, 194 (5th Cir. 1983).

147

Rec. Doc. 272 at 8.

148

Id. at 8–9.

149

Rec. Doc. 305 at 5.

25

[Ronald Franks] paid CCT on a weekly basis for its labor costs incurred,” that does not mean that
Ronald Franks had the power to fire any individual workers.150
Here, the Court notes that Plaintiffs do not provide any direct evidence that Ronald Franks
had the power to hire and fire Plaintiffs, and instead appear to rely on the argument that CCT’s
dependence on Ronald Franks’ weekly payments to cover CCT’s labor costs supports a finding
that Ronald Franks could have fired Plaintiffs by not paying them.151 However, even assuming
Ronald Franks is correct that this is insufficient evidence to create a genuine dispute of material
fact on the issue of whether Ronald Franks had the power to hire and fire Plaintiffs, it is not fatal
to Plaintiffs’ FLSA claims against Ronald Franks, as no one factor in the “economic reality” test
is determinative. Rather, as discussed infra, Plaintiffs have presented sufficient evidence on the
remaining three factors of the “economic reality” test to preclude summary judgment.
b.

Supervise and control work schedules or conditions of employment

With regard to the second factor, Plaintiffs have pointed to evidence that Ronald Franks
had the power to supervise and control Plaintiffs’ work schedules or conditions of employment.152
In particular, Plaintiffs have pointed to evidence that Ronald Franks had the power to demand that
all Plaintiffs stop working on the Project.153 Plaintiffs also attach an email from Brent Isaacks of
CCT to Ronald Franks, in which Brent Isaacks informs Ronald Franks that Roy Anderson was

150

Id. at 5–6.

See Rec. Doc. 272 at 8 (Plaintiffs arguing that Ronald Franks “could simply not pay a particular Plaintiff”
or stop paying all of CCT’s labor costs).
151

152

Rec. Doc. 272 at 9.

153

Id.

26

requesting that CCT complete additional work that “needs to happen quickly,” but that “we work
for you so I need direction from you as how to proceed . . . Please advise as I will need to redirect
my manpower early Monday morning.”154 Plaintiffs also point to emails from Jaime Franks of
Ronald Franks, which states that “[Ronald Franks] is directing CCT to proceed with the correction
of the work . . . [if] the owner or the owner’s representative issues any compensation or time
associated with the work, [Ronald Franks] will then issue a change order to CCT for its equitable
portion.”155 Plaintiffs also provide evidence that Ronald Franks had a supervisor onsite on the
Project who requested “a copy of the sign in sheet daily.”156
Plaintiffs further contend that Roy Anderson “reserved the right to dispute the hours of the
workers” after reviewing the payroll invoices as compared to its on-site supervisor’s notes.157
Moreover, the Court notes that, in opposition, Ronald Franks concedes that the deposition
testimony shows that Ronald Franks directed CCT to pull all its workers off the job during a
dispute between Ronald Franks and Roy Anderson, but argues that this does not establish that
Ronald Franks controlled the work schedules or conditions of employment for Plaintiffs.158
Here, the Court finds that Plaintiffs have pointed to sufficient evidence to create a genuine
dispute of material fact regarding whether Ronald Franks had the power to supervise and control

154

See Rec. Doc. 272-13 at 1.

155

Rec. Doc. 272-15 at 1.

156

Rec. Doc. 272-14 at 1.

157

Rec. Doc. 272 at 9 n.48.

158

Rec. Doc. 305 at 6.

27

Plaintiffs’ work schedules or conditions of employment. For example, Plaintiffs have pointed to
sufficient evidence that Ronald Franks: (1) had the authority to order Plaintiffs to stop working,
such as during a separate dispute between Ronald Franks and Roy Anderson; (2) determined what
work CCT and Plaintiffs would do and if Plaintiffs would complete new assignments requested by
Roy Anderson; and (3) monitored Plaintiffs on the job and their daily sign-in and sign-out times.
While Ronald Franks disputes the weight or importance of the evidence Plaintiffs have cited, the
Court cannot weigh evidence or make credibility determinations on a motion for summary
judgment.159 Thus, the Court finds that Plaintiffs have produced sufficient evidence to permit a
reasonable fact finder to determine that this factor weighs in favor of a finding that Ronald Franks
was Plaintiffs’ “employer” for the purposes of FLSA.
c.

Determine the rate and method of payment

With regard to the third factor, Plaintiffs have also presented sufficient evidence that
Ronald Franks determined the rate and method of payment to Plaintiffs. In particular, Plaintiffs
have presented evidence that Ronald Franks covered all of CCT’s labor costs on the Project, which
includes Plaintiffs’ work, and that CCT was dependent on receiving Ronald Franks’ weekly cash
infusions before CCT could pay Plaintiffs for their labor as required by FLSA.160 For example,
Plaintiffs point out that Brandon Isaacks stated in his deposition that CCT could not cover any
payroll for the Project without Ronald Franks’ financial assistance.161 Likewise, Plaintiffs attach

159

Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); Little, 37 F.3d at 1075.

160

Rec. Doc. 272 at 9–10.

161

Rec. Doc. 272-2 at 23.

28

email correspondence between representatives of Ronald Franks and CCT, in which Ronald Franks
raised concerns that CCT is “overbilling [Ronald Franks] for labor” and requested a “check register
for labor checks written as well as a breakdown of each employee’s check amount,” and that “[a]ll
of the employees are supposed to be on CCT payroll per the attached email, not subcontracted.”162
Additionally, an email indicates that Ronald Franks required CCT to send “a copy of each check
written by CCT for the Baronne project, including for each laborer that is on the project, and that
verification of the checks delivered to the jobsite be performed by [Ronald Franks’] representative
on site . . . I am requesting prior to paying this week’s labor invoice and future invoices that
[Ronald Franks’] on-site representative visually inspect and manually calculate the total amount
of the checks . . . this will be required to be done prior to [Ronald Franks] issuing this week’s
check. Also, please provide the hourly wage for each employee that is paid hourly.”163 In Plaintiffs
argue that this shows that CCT was “constantly at the mercy of [Ronald Franks’] decision to release
funding or send checks,” and that “CCT was not able to bankroll the weekly pay of Plaintiffs
itself.”164
In response, Ronald Franks argues that Plaintiffs “essentially concede” that CCT controlled
the rate of pay of Plaintiffs, and that there is “no evidence in the record that could be fairly
characterized” that Ronald Franks determined how often CCT would be paid.165 Rather, Ronald

162

Rec. Doc. 272-16 at 1.

163

Id.

164

Rec. Doc. 272 at 10.

165

Rec. Doc. 305 at 7.

29

Franks contends that the subcontract required Ronald Franks to pay CCT’s labor and materials
costs on a weekly basis.166 However, considering the evidence presented by Plaintiffs, the Court
finds that Plaintiffs have pointed to sufficient evidence to create a genuine issue of material fact
regarding whether Ronald Franks determined the rate and method of payment to Plaintiffs. In
particular, the Court notes that Plaintiffs have presented evidence that Ronald Franks controlled
the funds provided to CCT and paid all labor costs for Plaintiffs’ work, disputed some of CCT’s
requests for labor costs, and required CCT to provide the daily sign in sheets to their on-site
supervisor, reviewed the requested hours of each Plaintiff against their own notes, and required
CCT to gain Ronald Franks’ approval of each check issued to Plaintiffs prior to paying Plaintiffs
and before Ronald Franks would pay CCT.167 In other words, Plaintiffs’ evidence supports their
argument that Ronald Franks was substantially involved in compensating Plaintiffs and ultimately
determining when and how much Plaintiffs were paid by reviewing Plaintiffs’ hours, clock-in and
clock-out times, and check amounts, as well as controlling the dispersal of the very funds that were
used to pay Plaintiffs.
Indeed, the Court finds the Fifth Circuit’s analysis in Castillo v. Givens analogous here.168
In Castillo, the Fifth Circuit found a farm owner to be an “employer” under FLSA despite his
claim that a third party hired and paid the laborers and that the farm owner did not control the farm

166

Id. at 7–8.

167

See Rec. Doc. 272 at 10.

168

Castillo v. Givens, 704 F.2d 181, 188 (5th Cir. 1983), overruled on other grounds by McLaughlin v.
Richland Shoe Co., 486 U.S. 128 (1988).

30

workers’ pay or hours.169 The Fifth Circuit opined that “[o]f particular importance is the fact that
[the farm owner] did not pay [the third party] enough for [the third party] himself to pay the
workers minimum wage; it was therefore impossible for [the third party] to comply with the
FLSA . . . The economic reality of the situation was that the workers were dependent upon [the
farm owner]—not [the third party]—to pay them the minimum wage.”170 Similarly here, Plaintiffs
have presented sufficient evidence that Ronald Franks exercised significant control over Plaintiffs’
compensation for the hours they worked, and that, if Ronald Franks did not pay CCT’s labor costs,
CCT would have been unable to compensate Plaintiffs for their labor.171 Thus, the Court finds that
Plaintiffs’ evidence could permit a reasonable fact finder to determine that this factor weighs in
favor of a finding that Ronald Franks was Plaintiffs’ “employer” for the purposes of FLSA.
d.

Maintain employment records

With regard to the fourth factor, Plaintiffs have also presented sufficient evidence that
Ronald Franks maintained at least some employment records for Plaintiffs. Plaintiffs point out that
Ronald Franks received daily reports of each Plaintiffs’ hours on the job, and a weekly report
outlining Plaintiffs’ rate of pay, hours worked, and employee ID numbers.172 Plaintiffs also point
to emails from Ronald Franks requesting that CCT provide a check register for labor checks and a
breakdown of each Plaintiffs’ check amount, and emails from Ronald Franks stating that “[a]ll of

169

Id. at 183–84, 188–89.

170

Id. at 192.

171

See Rec. Doc. 272-2 at 23.

172

Id.

31

the employees are supposed to be on CCT payroll per the attached email, not subcontracted,” and
that it was Ronald Franks’ “understanding from the attached letter that all employees had been
transferred to CCT by 9/12/14.”173 Plaintiffs argue that this demonstrates that Ronald Franks
maintained employment files and directed CCT on how to administer their payroll.174
In response, Ronald Franks argues that passively receiving reports does not constitute
maintaining employment files, and Ronald Franks contends that Plaintiffs have not pointed to
evidence that Ronald Franks “maintained any of [the] documents typically associated with
employment files, such as job applications, social security cards, identification, employment eligibility
verifications, requests for taxpayer identification numbers, state and federal tax withholding forms,
etc.”175 However, Ronald Franks provides no case law or authority that Plaintiffs must point to

these specific documents to establish that Ronald Franks maintained employment records on
Plaintiffs. Instead, Ronald Franks’ argument appears to go to the weight and credibility of
Plaintiffs’ evidence, rather than showing that there is no genuine dispute of material fact that
Ronald Franks did not maintain any employment files for Plaintiffs.
Here, considering the evidence presented by Plaintiffs under the standards appropriate for
a Rule 56 motion for summary judgment, the Court finds that Plaintiffs have pointed to sufficient
evidence to create a genuine issue of material fact regarding whether Ronald Franks maintained
employment records here. In particular, the Court notes that Plaintiffs have presented evidence

173

See Rec. Docs. 272-16, 272-20.

174

Rec. Doc. 272 at 10.

175

Rec. Doc. 305 at 9.

32

that Ronald Franks requested and received documents on a daily and weekly basis for each
Plaintiff, including daily sign-in and sign-out times, rate of pay, hours worked, employee ID
numbers, and breakdowns of each Plaintiff’s check amounts, and that Ronald Franks used the daily
reports provided by CCT to “compare the names” against other reports created by the onsite
supervisor using the sign in sheets,176 all of which could be considered by a factfinder as evidence
that Ronald Franks maintained “employment records.” Thus, the Court finds that Plaintiffs’
evidence could permit a reasonable fact finder to determine that this factor weighs in favor of a
finding that Ronald Franks was Plaintiffs’ “employer” for the purposes of FLSA.
e.

Dependence on Ronald Franks

Finally, the Court notes that, as stated supra, the Fifth Circuit has held that the “touchstone
of economic reality in analyzing a possible employee/employer relationship for purposes of FLSA
is dependency.”177 Indeed, the Fifth Circuit has further held that an individual is an employer if he
“independently exercised control over the work situation.”178 Here, Plaintiffs have pointed to
sufficient evidence in support of their argument that Ronald Franks exercised considerable control
and power over Plaintiffs’ work situations, schedules, assignments, compensation, certain
employment records, and employment generally such that Plaintiffs could be considered
dependent on Ronald Franks for purposes of the employee-employer analysis under FLSA.

176

See, e.g., Rec. Doc. 272 at 9; Rec. Doc. 272-3 at 12–13.

177

Weisel v. Singapore Joint Venture, Inc., 602 F.2d 1185, 1189 (5th Cir. 1979).

178

Reich v. Circle C. Investments, Inc., 998 F.2d 324, 329 (5th Cir. 1993) (quoting Donovan v. Grim Hotel
Co., 747 F.2d 966, 972 (5th Cir. 1984)),

33

In sum, the Court finds that Plaintiffs have provided sufficient evidence on the four factor
“economic reality” test to show that there are genuine issues of material fact regarding whether
Ronald Franks was Plaintiffs’ “employer” for purposes of FLSA.179 By contrast, Ronald Franks
has not shown that all the factors of the “economic reality” test are absent here or that they each
weigh against a finding of an employee-employer relationship. In other words, Ronald Franks has
not shown that there are no genuine disputes of material fact that Ronald Franks is not Plaintiffs’
“employer” under FLSA such that summary judgment on this issue is proper. Indeed, the Court
notes that many of Ronald Franks’ arguments go to the weight or credibility of Plaintiffs’ evidence,
rather than the absence of genuine disputes of material fact. 180 Therefore, because Plaintiffs have
pointed to sufficient evidence to show that an employment relationship existed between Plaintiffs
and Ronald Franks, the Court hereby denies Ronald Franks’ motion for summary judgment.
IV. Conclusion
Based on the foregoing, the Court concludes that Plaintiffs have pointed to sufficient
evidence on at least three of the four factors of the “economic reality” test to show that there are
genuine issues of material fact regarding whether Ronald Franks was Plaintiffs’ “employer” for

179
Gray, 673 F.3d at 357 (noting that not all factors are required to establish that a defendant is an employer
for purposes of FLSA; Nieto, 2016 WL 6962513, at *9 (same); see also Rutherford Food Corp. v. McComb, 331 U.S.
722, 730 (1947) (“We think, however, that the determination of the relationship does not depend on such isolated
factors but rather upon the circumstances of the whole activity.”); Orozco v. Plackis, 757 F.3d 445, 448 (5th Cir. 2014)
(“However, a party need not establish each element in every case.”); Gil v. De Laune Drilling Serv., Ltd., No. 16-71,
2016 WL 5394261, at *2 (S.D. Tex. Sept. 27, 2016) (denying motion for summary judgment on the issue of employer
status when at least two factors under the “economic reality” test support a finding that the defendant was a FLSA
employer during the relevant time period).
180

See, e.g., Guyton v. Legacy Pressure Control, No. 15-1075, 2017 WL 244868, at *5 (W.D. Tex. Jan. 18,
2017) (denying cross motions for summary judgment when the parties’ arguments would require the court to weigh
the evidence to determine whether the defendants should be considered employers under FLSA) .

34

purposes of FLSA. By contrast, Ronald Franks has not shown that there are no genuine disputes
of material fact that Ronald Franks is not Plaintiffs’ “employer” under FLSA or that no fact finder
could determine that an employment relationship existed between Ronald Franks and Plaintiffs.
Accordingly,
IT IS HEREBY ORDERED that Ronald Franks’ “Motion for Summary Judgment”181 is
DENIED.
NEW ORLEANS, LOUISIANA this 27th day of June, 2017.
_____

________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

181

Rec. Doc. 259.

35