Biggio et al v. H2O Hair Inc. et al
ORDER AND REASONS: IT IS ORDERED that Defendants' 148 motion for partial summary judgment is GRANTED and that Plaintiffs' retaliation claims are DISMISSED. Signed by Judge Ivan L.R. Lemelle on 6/8/2017. (mmv)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CARRIE BIGGIO, ET AL.
H2O HAIR INC., ET AL.
ORDER AND REASONS
Before the Court is Defendants’ “Motion for Partial Summary
Judgment Seeking Dismissal of Plaintiffs’ Retaliation Claims.”
Defendants then requested (Rec. Doc. 162), and were granted (Rec.
Doc. 168), leave to file a reply memorandum (Rec. Doc. 170). For
the reasons discussed below,
IT IS ORDERED that Defendants’ motion for partial summary
judgment (Rec. Doc. 148) is GRANTED.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
As this Court has previously discussed, on November 18, 2015,
“Plaintiffs”), filed the present action under the Fair Labor
Standards Act (“FLSA”) against their former employer, asserting
claims individually and on behalf of all those similarly situated.
Rec. Doc. 1 at 1-2. Plaintiffs worked full-time at Defendant H2O
Hair, Inc. (“H2O”) under numerous job titles, including, but not
The instant motion was set for submission on May 24, 2017. Pursuant to Local
Rule 7.5, Plaintiffs’ response was therefore due no later than May 16, 2017.
However, it was untimely filed on May 17, 2017. In the interest of justice, the
Court will nevertheless consider it.
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attendant, receptionist, assistant, and housekeeper. Id. at 2.
Named as Defendants in the action are H2O, Michael John Gaspard
Insurance Company.4 Id.; see also Rec. Doc. 45 at ¶¶ 5-7. Soon
conditionally certify the class. Rec. Doc. 27. On March 14, 2016,
the motion was granted in part to allow conditional certification.
Rec. Doc. 44 at 15. The class now consists of thirteen former
employees. Rec. Doc. 146-1 at 1.5
Plaintiffs asserted a number of claims against Defendants,
including retaliation. Rec. Doc. 45 at 7, ¶¶ 26-29. Specifically,
Plaintiffs alleged that their “pleas for overtime pay and their
requests that the Gaspards and H2O comply with applicable law
clients, constructively terminating employment, reducing wages
without warning or justification, imposing duties outside the
Mr. Gaspard served, at all relevant times, as H2O’s manager, secretary, and
treasurer. Rec. Doc. 1 at 2.
3 Ms. Gaspard served, at all relevant times, as H2O’s president. Rec. Doc. 1 at
4 XYZ Insurance Company is, upon Plaintiffs’ information and belief, the unnamed
insurer providing coverage to Defendants for acts or omissions of officers and
directors. Rec. Doc. 1 at 2.
5 Plaintiffs include Biggio, Luminais, Kaitlin Dubroca, Erin Hawkins, Amanda
Henderson, Jeanette Kent, Heather Pham, Loan Tran, Diana Macera, Heather
Whittington, Kayla Alvarez, Ashley Brown, and Alison Kennedy.
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scope of Plaintiffs’ employment, threatening termination, and
demanding payment if an employee quit. Id. at ¶ 28.
THE PARTIES’ CONTENTIONS
engaged in a protected activity under 29 U.S.C. § 215(a)(3) or
that Defendants retaliated against them for any such activity.
interrogatory to each Plaintiff seeking disclosure of the basis of
Plaintiffs’ retaliation claims. Id. at 4. When Plaintiffs failed
Wilkinson granted the motion, ordering Plaintiffs to answer the
interrogatory by May 23, 2017. Rec. Docs. 134, 144.6 On May 30,
2017, Defendants filed a motion to hold Plaintiffs in contempt and
for sanctions. Rec. Doc. 171. They argued that Plaintiffs Alvarez,
Brown, and Kennedy failed to respond to the interrogatory and that
the remaining Plaintiffs provided answers that raised objections,
were not verified under oath, and were not full and complete. Id.
at 2. The motion was referred to Magistrate Judge Wilkinson and
set for submission on June 14, 2017. Id.7
Plaintiffs respond to the instant motion by arguing that the
affidavits relied upon by Defendants are directly contradicted by
Notably, Plaintiffs’ response to the instant motion was due May 16,
week before Plaintiffs’ interrogatory responses were due. Plaintiffs
refer to their interrogatory responses in their response to the instant
7 In Plaintiffs’ response to that motion, they admit that Plaintiffs
and Brown are no longer asserting retaliation claims. Rec. Doc. 174 at
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declarations. Rec. Doc. 159 at 1.8
III. LAW AND ANALYSIS
Under Federal Rule of Civil Procedure 56, summary judgment is
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as
a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986) (quoting FED. R. CIV. P. 56(c)). See also TIG Ins. Co. v.
Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002). A
genuine issue exists if the evidence would allow a reasonable jury
to return a verdict for the nonmoving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). The movant must point to
affidavits, if any,’ which it believes demonstrate the absence of
a genuine issue of material fact.” Celotex, 477 U.S. at 323. If
and when the movant carries this burden, the non-movant must then
go beyond the pleadings and present other evidence to establish a
Plaintiffs also note that Defendants have not filed an answer to their amended
complaint. Rec. Doc. 159 at 2. However, the retaliation claim included in the
amended complaint is exactly the same as the retaliation claim included in the
original complaint. See Rec. Docs. 1 at 4, ¶¶ 17-20; 45 at 7, ¶¶ 26-29.
Therefore, the Court will not address Defendants’ failure to answer the amended
complaint, presumably an oversight, in conjunction with the instant motion.
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genuine issue. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986).
However, “where the non-movant bears the burden of proof at
trial, the movant may merely point to an absence of evidence, thus
shifting to the non-movant the burden of demonstrating by competent
summary judgment proof that there is an issue of material fact
warranting trial.” Lindsey v. Sears Roebuck & Co., 16 F.3d 616,
618 (5th Cir. 1994). Conclusory rebuttals of the pleadings are
insufficient to avoid summary judgment. Travelers Ins. Co. v.
Liljeberg Enter., Inc., 7 F.3d 1203, 1207 (5th Cir. 1993).
The FLSA makes it unlawful for any person “to discharge or in
any other manner discriminate against any employee because such
employee has filed any complaint or instituted or caused to be
instituted any proceeding under or related to this chapter . . .
.” 29 U.S.C. § 215(a)(3). “An employee asserting retaliation under
circumstantial evidence.” White v. Denton Cty., 655 F. App’x 1021,
1024 (5th Cir. 2016) (quoting Monroe Firefighters Ass’n v. City of
Monroe, No. 06-1092, 2009 WL 772829, at *3 (W.D. La. Mar. 17,
retaliation, then his claim is subject to the traditional burdenshifting framework of McDonnell Douglas Corp. v. Green.” Id.
(citing Kanida v. Gulf Coast Med. Pers. LP, 363 F.3d 568, 577 (5th
Cir. 2004)); see also McDonnell Douglas Corp. v. Green, 411 U.S.
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792 (1973). “To establish a prima facie claim of retaliation under
the McDonnell Douglas burden-shifting framework, a plaintiff must
demonstrate (1) participation in a protected activity; (2) an
adverse employment action; and (3) a causal link between the
activity and the adverse action.” White, 655 F. App’x at 1024
(citing Hagan v. Echostar Satellite, L.L.C., 529 F.3d 617, 624
(5th Cir. 2008)); see also Starnes v. Wallace, 849 F.3d 627, 63132 (5th Cir. 2017). As to the first element, a plaintiff engages
in a protected activity if he or she makes a “complaint.” Starnes,
849 F.3d at 632 (quoting Hagan, 529 F.3d at 626). To constitute a
“complaint,” the employee’s communication must give the employer
fair notice that he or she is “making a complaint that could
subject the employer to a later claim of retaliation” and the
“complaint must be sufficiently clear and detailed for a reasonable
employer to understand it, in light of both content and context,
as an assertion of rights protected by the [FLSA] and a call for
their protection.” Id. (quoting Lasater v. Tex. A & M Univ.Commerce, 495 F. App’x 458, 461 (5th Cir. 2012) (quoting Kasten v.
Saint-Gobain Performance Plastics Corp., 563 U.S. 1, 14 (2011))).
If a plaintiff makes a prima facie claim of retaliation, “the
defendant must then articulate a legitimate, nondiscriminatory
reason for its decision. The burden then shifts to the plaintiff
discrimination.” White, 655 F. App’x at 1024 (citing Hagan, 529
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F.3d at 624). “A plaintiff may establish pretext either through
evidence of disparate treatment or by showing that the employer’s
proffered explanation is false or unworthy of credence . . .
[meaning that] it is not the real reason for the adverse employment
(quoting Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003)).
Here, Defendants argue that no Plaintiff “made a complaint
concerning any violations of [the] FLSA by H2O” and that no
Plaintiff was subject to an adverse employment action because of
Cherie Callaghan, and general manager, Laura Phillips. See Rec.
Docs. 148-4, 148-5.
In her affidavit, Ms. Callaghan explained that “[i]f an
timekeeping/attendance, payroll, and compensation including but
not limited to overtime and minimum wages to any representative of
H2O, it is routed to [her] for handling.” Rec. Doc. 148-4 at 1-2.
She also stated that “[i]f any retaliatory or disciplinary action
had been taken against any of the Plaintiffs arising out of, or
related to, any complaints concerning overtime or minimum wages,
I would, more likely than not, know about it.” Id. at 2. She then
stated that no Plaintiff complained, in writing or orally, about
any unpaid earned overtime, minimum wages, or gap wages to H2O,
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the United States Department of Labor, the Louisiana Department of
Labor, or the Louisiana Workforce Commission. Id. at ¶¶ 29-35. She
also stated that H2O did not retaliate against, terminate, demote,
threaten to terminate or demote, reduce the pay or hours of, deny
or reduce the benefits of, or subject, or threaten to subject, any
Plaintiff to a hostile work environment or other detrimental
personnel action because of any complaint pertaining to unpaid
earned overtime, minimum wages, or gap wages or to inaccurate or
incomplete work time records. Id. at ¶¶ 1-28.
In her affidavit, Ms. Phillips explained that she manages
complaints that are not routed to Ms. Callaghan. Rec. Doc. 148-5
at 1. She specifically stated that her “responsibilities include
terminating or imposing any form of discipline on any employee of
H2O.” Id. at 2. She similarly stated that H2O did not retaliate
reduce the hours of, deny or reduce the benefits of, or subject,
or threaten to subject, any Plaintiff to a hostile work environment
pertaining to unpaid earned overtime or minimum wages or inaccurate
or incomplete work time records. Id. at ¶¶ 1-23. Finally, she
stated that she was never asked to take any retaliatory action
against any Plaintiff because of any complaint regarding unpaid
earned overtime or minimum wages. Id. at ¶¶ 24-25.
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Thus, Defendants, who do not bear the burden of proving
retaliation at trial, have provided competent summary judgment
evidence that shows they are not subject to claims of retaliation.
In response, Plaintiffs cite to various documents in the record in
an attempt to demonstrate an issue of material fact warranting
trial on this claim.
First, Mr. Gaspard testified during his deposition that he
“heard there was some disgruntleness [sic]” among some employees,
i.e. “there were a number of them disgruntled and starting to say,
[w]e’re going to quit,”9 so he told them that “if there’s anyone
here that’s unhappy . . . I will let you out of the . . . training
agreement, and no one took me up on it.” Rec. Doc. 159-2 at 1-2,
4. He testified that he gave the employees until the end of the
week to take him up on this offer. Id. at 3. When Plaintiffs’
counsel asked Mr. Gaspard if he remembered anyone complaining about
a cost increase, Mr. Gaspard stated “No.” Id. at 5-6.
This testimony does not establish that Plaintiffs engaged in
a protected activity. Even though Mr. Gaspard admitted that some
employees were disgruntled and threatening to quit, nowhere in his
testimony does he state that Plaintiffs were complaining about
In their response memorandum, Plaintiffs state that Mr. Gaspard “hosted a
meeting with a number of ‘disgruntled’ employees who had discussed quitting
over the treatment and pay at H2O.” Rec. Doc. 159 at 4 (emphasis added). However,
there is no evidence to show the basis for these employees’ complaints; at most,
Mr. Gaspard’s deposition testimony recognizes that some of the employees were
“disgruntled” and were thinking about quitting.
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Defendants’ alleged violations of, or Plaintiffs’ rights under,
Mr. Gaspard nevertheless admitted that he was suing some
people for breaching the training agreement. Rec. Doc. 159-2 at 3.
“[T]hey know when they come to employ with us, and they sign that,
that it is a legal and binding agreement.” Id. at 5.
It appears from Plaintiffs’ response memoranda to the instant
motion, and the pending motion for sanctions, that Plaintiffs
consider Defendants’ lawsuits, and associated “threats” to sue,
adverse employment actions.10 However, Plaintiffs must also prove
protected activities. Plaintiffs fail to make this argument in an
organized or effective way; nonetheless, the Court will consider
all of the evidence presented by Plaintiffs in response to the
instant motion and attempt to find any evidence of a protected
activity, a threat to sue, and a causal connection between these
events. However, even if the Court finds such evidence, Mr.
Gaspard’s deposition testimony suggests that he sued or threatened
Defendants’ alleged FLSA violations. Thus, Plaintiffs would have
For the purposes of this motion, the Court will assume that such activities
constitute adverse employment actions.
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to present evidence that this proffered explanation is unworthy of
credence. The Court will attempt to find any such evidence.
Plaintiff Tran left H2O, Mr. Gaspard testified that he believed
she quit and that he did not recall her explaining why she quit or
if there was any issue with how she was paid. Rec. Doc. 159-3 at
messages from Mr. Gaspard to Plaintiff Tran in which Mr. Gaspard
asked Plaintiff Tran to communicate with him, acknowledged that
there was “confusion and how you were paid” and “it’s obvious that
your pay was not done correctly from what Sharee is [sic] told me
but that’s an easy fix.” Rec. Doc. 159-4 at 1. When Plaintiff Tran
failed to respond, he stated that he hopes Plaintiff Tran realizes
“the unnecessary cost this is going to bring to you.” Id. at 2.
After he was shown these text messages during the deposition, Mr.
Gaspard stated that he believed Plaintiff Tran was complaining
about “not making enough or something.” Rec. Doc. 159-3 at 2. He
was unable to recall why he said her pay was done incorrectly. “I
just remember that she . . . needs to be communicated with so that
she understands if . . . it was a mistake we want to make it
right.” Id. at 3-4. He also explained that the “unnecessary cost”
was his way of explaining that “she’s not going to be able to enter
into what’s coming up next for her . . . if you can just stick it
out until you learn this then you start growing at an exponential
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rate.” Id. at 4. Plaintiffs’ counsel specifically asked if it was
“possible you were referring to the cost of [a] lawsuit for her
leaving?” Id. at 5. Mr. Gaspard responded “No. I don’t threaten
people.” Id. Later, Mr. Gaspard states that “these people all quit.
They weren’t terminated.” Id. at 9.
The text messages suggest that Plaintiff Tran complained
about her pay to either Ms. Callaghan or Mr. Gaspard. The Court
will assume that she made this complaint and thereby engaged in a
Gaspard’s statement about the “unnecessary cost” that Plaintiff
Tran may suffer. This could be construed as a threat to sue or
terminate employment, and therefore an adverse employment action,
but for the fact that Mr. Gaspard explicitly testified that he was
not referring to a potential lawsuit or termination. Rather, he
was referring to the opportunities that Plaintiff Tran would lose
if she quit. Plus, even if the statement was considered a threat,
Plaintiffs did not show that the statement was made in response to
Plaintiff Tran’s complaint. Instead, the text messages suggest
that Mr. Gaspard was reacting to Plaintiff Tran’s failure to
respond and the possibility that she
might quit. Again, the
proffered evidence fails to establish a
Plaintiffs’ counsel then asked Mr. Gaspard about Plaintiff
Kent and produced a screenshot of November 15, 2014 text messages
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that Mr. Gaspard sent to Plaintiff Kent asking the latter to call
him to explain “what’s going on with you leaving today.” Rec. Doc.
159-6. He then texted “I expect you to call me this is not going
to go well with your agreement if you don’t start explaining to me
you’re walking out I wouldn’t think [a]s a Christian that you
would want to be involved in a legal situation this is my last
request.” Id. During his deposition, Mr. Gaspard explained that
this was not a threat, but that he “reminded her . . . of her
agreement.” Rec. Doc. 159-5 at 3. “[T]hey have an agreement with
us and if you just walk out on it . . . you’re going to owe money
on this agreement. Are you prepared for that? I mean . . . you’re
going to owe us money cause you got all the education and you’re
leaving.” Id. at 3-4.
testimony evidencing Mr. Gaspard’s threat to sue do not amount to
evidence of an adverse employment action causally related to a
protected activity. Mr. Gaspard made the statements in response to
Plaintiff Kent “leaving” or “walking out.” Whether that means
Plaintiff Kent walked off the job, quit, or simply left for the
day, none of these actions amount to a protected activity.
Plaintiffs also attached other documents to their response
Plaintiff Kent stating “Can I please be off on Mondays and I can
work Tues-Sat. I know we can’t get overtime so maybe I can have a
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short day during the week.” Rec. Doc. 159-7 at 1. However, this
document is not dated or addressed; nor is it verified by an
affidavit or deposition testimony. Plaintiffs’ counsel asked Ms.
Callaghan about the document during her deposition, but she stated
that she never recalled seeing it and that scheduling was handled
memorandum, Plaintiffs argue that, by acknowledging that this
complaint would have been handled by Ms. Phillips, Ms. Callaghan’s
deposition testimony contradicts her affidavit statement that
compensation” are handled by her. Rec. Doc. 159 at 3-4.
evidence (see, e.g. Essel v. Purdy, 112 F. App’x 326, 327 (5th
Cir. 2004) (“unsworn documents are not competent summary judgment
evidence”) (citing Fed. R. Civ. P. 56(e); Martin v. John W. Stone
Oil Distr., Inc., 819 F.2d 547, 549 (5th Cir. 1987))), does not
amount to a protected activity. Plaintiff Kent did not appear to
be complaining about Defendants’ alleged FLSA violations, but
simply requesting a schedule change. Even if it was a protected
activity, Plaintiffs did not point to any adverse employment
Another document contains the handwritten notation “Dubroca
handwritten notes. Rec. Doc. 159-8. When asked “Where do you feel
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you need help from the leadership of H2O,” the response appears to
be “I feel like I need help with getting my clientel [sic] to come
in the salon. I always have people wanting to come in but so hard
for them to come in only when I am off.” Id. In their response
memorandum, Plaintiffs describe this document as “Dubroca Request
Plaintiffs’ counsel asked Ms. Callaghan about this document during
her deposition, but Ms. Callaghan testified that she never recalled
seeing it. Rec. Doc. 159-9 at 3.
This document is not competent summary judgment evidence. Nor
does it amount to a protected activity. It is not clear that
Plaintiff Dubroca was complaining about working off the clock.
Rather, the statement could be interpreted to mean that she was
not scheduled to work on days that prospective clients were
Plaintiffs do not point to any adverse employment action resulting
from this supposed complaint.
The last document includes the names “Amanda,” “Carrie,” and
“Kaitlin,” a header titled “Reduction” and amounts totaling 52.70,
169.56, and 56.95, respectively, for a period ranging from October
25, 2013 to November 7, 2013. Rec. Doc. 159-12. This document is
not verified in any way and therefore is not competent summary
judgment evidence. Further, if Plaintiffs are trying to suggest
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that these reductions were adverse employment actions, they fail
to causally connect the reductions to any protected activity.
Dubroca and Whittington. Both state that “[o]n numerous occasions
the Defendants threatened me and other employees with high cost
legal bills and being sued if we decided to quit.” Rec. Docs. 15910 at ¶ 6; 159-11 at ¶ 6.
This is insufficient. Plaintiffs do not suggest that these
threats were made in response to a protected activity, but to their
own threats to quit. Plus, Mr. Gaspard’s testimony suggests that
he made “threats” to sue only when employees breached or threatened
to breach their training agreements, not when employees complained
about possible FLSA violations. Plaintiffs have not presented any
evidence to doubt this proffered explanation.
Plaintiffs Dubroca and Whittington further state that during
December of 2013 Plaintiff Dubroca, in Plaintiff Whittington’s
presence, notified Defendants of “wage calculations and overtime
wages owed to us.” Rec. Docs. 159-10 at ¶ 7; 159-11 at ¶ 11. They
were apparently told “that is not how our company works.” Id. When
enforcement’ to verify the Defendants pay practices,” she “was
given a random amount of money for that pay period.” Id.
This is the first allegation of a complaint about FLSA
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Plaintiffs fail to connect this complaint to any adverse employment
Because Plaintiffs failed to present evidence of a prima facie
case of retaliation or an issue of material fact warranting trial,
IT IS ORDERED that Defendants’ motion for partial summary
retaliation claims are DISMISSED.
New Orleans, Louisiana, this 8th day of June, 2017.
SENIOR UNITED STATES DISTRICT JUDGE
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