Castellanos v. Saints & Santos Construction, LLC et al

Filing 128

ORDER AND REASONS: IT IS ORDERED that Rufino's 100 Motion for Summary Judgment is GRANTED and the remaining Defendants' 106 Motion for Summary Judgment is DENIED as set forth in document. Signed by Judge Ivan L.R. Lemelle on 5/4/2017. (mmv)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JOSE CASTELLANOS

CIVIL ACTION

VERSUS

NO. 16-2501

SAINTS & SANTOS CONSTRUCTION,
L.L.C., ET AL.

SECTION “B”(2)

ORDER AND REASONS

Before

the

court

are

Defendant’s,

Rufino’s

Painting

and

Construction, “Motion for Summary Judgment on Behalf of Jose
Castellanos” (Rec. Doc. 100), “Plaintiff’s Opposition to Defendant
Rufino’s

Painting

Judgment”

(Rec.

&

Construction,

Doc.

123),

Inc.’s

Defendants

Motion

for

Summary

Saints

and

Santos

Construction, LLC and Wiliomar Oliveira’s “Motion for Summary
Judgment”
Defendants

(Rec.
Saints

Doc.

106)

&

Santos

and

“Plaintiff’s

Construction,

LLC

Opposition
and

to

Wiliomar

Oliveira’s Motion for Summary Judgment” (Rec. Doc. 115). For the
reasons mentioned below, IT IS ORDERED that Rufino’s Motion for
Summary Judgment is GRANTED and the remaining Defendants’ Motion
for Summary Judgment is DENIED. IT IS FURTHER ORDERED that the
claims against Defendant Rufino’s in Plaintiff’s Motion for Class
Certification (Rec. Doc. 60) and court directives for additional
briefing are MOOT.

1

Palmisano

Contractors,

LLC1

(“Palmisano”)

is

a

general

contractor that performed a construction project at the Ace Hotel.
(Rec.

Doc.

14).

Palmisano

had

subcontracted

certain

work

to

Rufino’s Painting and Construction, Inc. (“Rufino’s.”) (Rec. Doc.
32-2). In turn, Rufino’s contracted out a portion of the project
to Saints & Santos Construction, LLC (“S&S.”) (Rec. Doc. 32-3).
Plaintiff Jose Castellanos alleges he was not properly compensated
for overtime while working for S&S at “various job sites in
Louisiana.” (Rec. Doc. 14). Palmisano, Rufino’s, and S&S were named
as defendants in this action. (Rec. Doc. 14). Castellanos worked
at S&S jobsites. (Rec. Doc. 60-2). Castellanos’ primary duties
involved manual labor, sanding, painting, and installing drywall.
(Rec. Doc. 60-2).

Summary judgment is proper if the pleadings, depositions,
interrogatory

answers,

and

admissions,

together

with

any

affidavits, 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.

Fed. R. Civ. P. 56; see also Celotex Corp. v. Catrett,

477 U.S. 317, 327 (1986).
would

allow

a

reasonable

A genuine issue exists if the evidence
jury

to

return

a

verdict

for

the

Defendant Palmisano was dismissed in this Court’s February 24th,
2017 order (Rec. Doc. 93).
1

2

nonmovant.
(1986).

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

Although the Court must consider the evidence with all

reasonable inferences in the light most favorable to the nonmoving
party, the nonmovant must produce specific facts to demonstrate
that a genuine issue exists for trial.

Webb v. Cardiothoracic

Surgery Assocs. of N. Texas, 139 F.3d 532, 536 (5th Cir. 1998).
The

moving

party

bears

the

initial

responsibility

of

informing the district court of the basis for its motion. Celotex,
477 U.S. at 323. The movant must point to “portions of ‘the
pleadings, depositions, answers to interrogatories, and admissions
on file, together with affidavits’ which it believes demonstrate
the absence of a genuine issue of material fact.” Id. (citing Fed.
R. Civ. P. 56). If and when the movant carries this burden, the
nonmovant must then go beyond the pleadings and use affidavits,
depositions,

interrogatory

responses,

evidence to establish a genuine issue.

admissions,

or

other

Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
“[W]here 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. . . . Only when ‘there is sufficient evidence
favoring the nonmoving party for a jury to return a verdict for
that party’ is a full trial on the merits warranted.” Lindsey v.
3

Sears Roebuck and Co., 16 F.3d 616, 618 (5th Cir. 1994) (citations
omitted). Accordingly, 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).
Defendant Rufino’s Motion for Summary Judgment
In the Fifth Circuit in order to determine whether a worker
constitutes

a

FLSA

protected

employee

the

Court

conducts

an

economic realities analysis. Hopkins v. Cornerstone Am., 545 F.3d
338, 343 (5th Cir. 2008). In particular, the court looks at whether
“as a matter of economic reality, the worker is economically
dependent upon the alleged employer or is instead in business for
himself.”

Hopkins,

jurisprudence

the

545
court

F.3d

338,

Under

Fifth

consider

must

343.

“five

non-exhaustive

factors: (1) the degree of control

Circuit

exercised by the alleged

employer; (2) the extent of the relative investments of the worker
and the alleged employer; (3) the degree to which the worker's
opportunity for profit or loss is determined by the alleged
employer; (4) the skill and initiative required in performing the
job; and (5) the permanency of the relationship.” Hopkins, 545
F.3d at 343. However, the Fifth Circuit further explained “no
single factor is determinative.” Id.
Defendant Rufino’s argues that there is no indication that
the Plaintiff can establish facts that would demonstrate that it
was an employer under the economic realities test. This Court
4

agrees. In their opposition the Plaintiff does not argue that
Rufino’s meets any of the factors that the Fifth Circuit analyzes.
Instead,

Plaintiff

argues

that

Defendant

Rufino’s

should

be

considered a “joint employer” with Defendant Saint’s and Santos
under the FLSA through either horizontal or vertical liability.
Consequently,

Plaintiff

attempts

to

establish

that

Defendant

Rufino’s is an FLSA employer by contending the actions of Saint's
and Santos may satisfy the economic reality test. Essentially
upon that basis, Plaintiff argues Rufino's exposure should
thereby be conflated in order to extend employer status to both
Rufino's and Saint's and Santos.
That proposition lacks factual support and controlling
case law. Plaintiff’s interpretations of federal statutory laws
must have contextual basis. General arguments regarding Rufino’s
control over Castellanos as a joint employer with Saints and Santos
do not constitute persuasive foundation for the proposition that
Defendant Rufino’s satisfies the economic reality test used by the
Fifth Circuit. Plaintiff’s arguments regarding Rufino’s control
over Saint’s and Santos are an attempt to circumvent Fifth Circuit
precedent. Plaintiff does not allege that Rufino’s controlled the
Plaintiff. Instead Plaintiff alleges that Rufino’s controlled
Saint’s and Santos and through that relationship Rufino’s should
qualify as an FLSA employer. Plaintiff understands that based on
the evidence found in the record he cannot defeat summary judgment
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if this Court applies the economic reality test to the relationship
between Plaintiff and Rufino’s.
Yet, the Plaintiff does not point to any case law that would
allow for this derivative liability to allow a Plaintiff to defeat
a summary judgment motion against a party who otherwise would not
qualify as an FLSA employer. Plaintiff’s interpretations of
federal statues are not binding on this Court, especially given
the clear standards that the Fifth Circuit has held must govern
the analysis of employer status determinations.
Plaintiff has not proffered

any

facts

that

Defendant

Rufino’s can meet any of the five factors used by the Fifth
Circuit. The fact that Saint’s and Santos may meet these factors
does not absolve the Plaintiff from establishing that Defendant
Rufino’s must independently qualify as an FLSA employer. Given
that

the

Plaintiff

cannot

establish

that

there

disputed facts regarding whether or not Rufino's

are

material

is an

employer under the FLSA as determined by the economic reality test,
summary

judgment

as

to

Plaintiff’s

claims

against

Defendant

Rufino’s is appropriate.
Defendants Saints and Santos and Wiliomar Oliveira’s
Motion for Summary Judgment
The remaining Defendants argue that under the aforementioned
Fifth Circuit factors, they are also entitled to summary judgement

6

because there are no material factual disputes regarding their
non-employer status under the FLSA. This Court disagrees.
1. Degree of Control Exercised by the Employer
The Defendants argue that they did not exert control over the
Plaintiff’s work schedule because his hours varied from week to
week (Rec. Doc. 106-4). As a result of the varied hours the
Defendants ask this court to make an inference that the Plaintiff
controlled his own hours and therefore this factor would be weighed
in favor of the Plaintiff not constituting an FLSA protected
employee. However, there are many facts that weigh in favor of the
Defendants

being

employers

under

the

FLSA.

The

Defendants

supervised the Plaintiff’s work and ordered him to make corrections
(Rec. Doc. 115-2). The Defendants told the Plaintiff when to start
work and stop work each day (Rec. Doc. 115-2). The Plaintiff was
told to work faster if his supervisor felt pressure to meet
deadlines

(Rec.

Doc.

115-2).

Furthermore,

the

Defendants

controlled when and where the Plaintiff took lunch breaks in terms
of both duration and location (Rec. Doc. 115-2). All of these facts
could lead a reasonable jury to conclude that this factor is
disputed.
2. Relative Investments
Under this factor courts engage in a comparative analysis
between a worker’s individual investment and that of the employer.
Hopkins, 545 F.3d

at 344. Defendants argue that because the
7

Plaintiff

provided

his

own

materials

for

his

job

with

the

Defendants that this factor weighs against them being employers
under the FLSA. However, the Fifth Circuit had held that this
factor did not weigh against skilled workers who purchased their
own equipment because they were mostly paid for their services,
not the use of their equipment. Robicheaux v. Radcliff Material,
Inc., 697 F.2d 662, 666-667 (5th Cir. 1983). Given the relevant
case law, there is a material factual dispute regarding whether
this factor weighs in favor of the Defendant or the Plaintiff.
3. Opportunity for Profit and Loss
Given the nature of the Plaintiff’s assignment, to paint a
hotel, there was not a significant opportunity to profit or suffer
a loss. In the Fifth Circuit courts have also looked at whether a
worker

had

the

opportunity

to

profit

through

working

more

efficiently. Lang v. DirecTV, Inc., 801 F. Supp. 2d 532, 539 (E.D.
La. 2011). However, the Plaintiff was paid an hourly wage of $16.00
and would be paid the same regardless of how fast he completed his
assignments. This factor does not support the Defendants motion
for summary judgment.
4. Skill and Initiative
This factor is not discussed by the Defendants and does not
weigh in their favor.
5. Permanency of the Relationship

8

Plaintiff worked for a seven month time commitment that would
have continued had he not been terminated (Rec. Doc. 115-2).
Plaintiff did not have a periodic work schedule but was regularly
employed as evidenced by the fact that he worked for at least 28
weeks consecutively (Rec. Doc. 115). A reasonable jury could decide
that

it

is

a

disputed

fact

regarding

the

permanency

of

the

relationship between the Plaintiff and the Defendants.
S & S Defendants’

Motion

for

Summary

Judgment

is

not

appropriate. There are numerous material facts in dispute that
could lead to a difference of opinion between reasonable jurors.

New Orleans, Louisiana, this 4th day of May 2017.

___________________________________
SENIOR UNITED STATES DISTRICT JUDGE

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