Kidwell v. Ruby IV, L.L.C.

Filing 492

ORDER & REASONS: ORDERED that defendants' 408 motion for partial summary judgment regarding server plaintiffs who did not work any overtime is GRANTED in part, and the overtime claims of all plaintiffs listed in the motion, except those of Elvie Disotell, Anna Spiers, India Henderson, and Tarsha Coston, are DISMISSED WITH PREJUDICE. The motion is DENIED as to Disotell, Spiers, Henderson, and Coston. Signed by Judge Barry W Ashe on 8/28/2020. (Reference: All Cases)(clc)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TAMMY KIDWELL, et al.

CIVIL ACTION

VERSUS

NO. 18-2052 c/w 19-11419

RUBY IV, L.L.C., et al.

SECTION M (5)
Pertains to all cases
ORDER & REASONS

Before the Court is a motion by defendants Ruby Enterprises, LLC, Ruby Management,
Inc., Ruba, LLC, Ruba III, LLC, Ruby IV, LLC, Ruby V, LLC, Ruby VI, LLC, Ruby VII, LLC,
Ruby VIII, LLC, Ruby I.X., LLC, Ruby X, LLC, Ruby XI, LLC, Ruby XII, LLC, Ruby XIV, LLC,
Ruby XV, LLC, Nadia Esmail, and Mohammad Esmail (collectively “defendants”) for partial
summary judgment regarding server plaintiffs who did not work any overtime.1 Plaintiffs respond
in opposition,2 and defendants reply in further support of their motion.3 Having considered the
parties’ memoranda, the record, and the applicable law, the Court holds that, on the record before
it, there is no evidence that the server plaintiffs listed in the motion (other than Elvie Disotell,
Tarsha Coston, India Henderson, and Anna Spiers) worked any overtime at defendants’
restaurants.
I.

BACKGROUND
These consolidated cases arise out of plaintiffs’ employment at defendants’ International

House of Pancakes restaurants as managers, hosts or hostesses, cooks, and servers.4 Plaintiffs
allege that defendants violated the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201, et seq.,

1

R. Doc. 408.
R. Doc. 465.
3
R. Doc. 473.
4
R. Doc. 173; see also Civil Action No. 19-11419, R. Doc. 1.
2

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by failing to pay the requisite minimum wage and overtime compensation.5

The Court

conditionally certified two FLSA classes consisting of:
(1) All hourly workers working for the Defendants between June 13,
2015, and the present, to whom Defendants did not pay overtime
compensation for hours worked over forty (40) in a workweek,
including hostesses, managers and other hourly workers
(collectively referred to as the “Overtime FLSA Collective”); and
(2) All servers (waiters/waitresses) working for the Defendants
between June 13, 2015, and the present, who were not paid
$7.25/hour for hours worked under forty (40) in a workweek and/or
the minimum overtime rate of $10.88 for hours worked over forty
(40) in a workweek (the “Server FLSA Collective”).6
Putative class members were allowed a period of time to opt in to the classes. Due to tolling
agreements, this case encompasses FLSA claims arising from September 28, 2015, to the date of
trial.7
II.

PENDING MOTION
Defendants move for partial summary judgment seeking the dismissal of the overtime

claims of the following opt-in server plaintiffs who defendants contend did not work any overtime
at defendants’ restaurants:8
Cheryl Adams
Jabrielle Anderson
Lyndzee Artmont
Malana Baker
Tatiana Bonadona
Vyvian Breaux
Brittany Caldwell
Alicia Collins
Macy Dallas

Shantel Adams
Timothy Anderson
Uloma Asugha
Melvin Banegas
Heidi Borras
Taylor Brocato
Eola Carter
Tarsha Coston
Erin Dalton

Tara Adams
Ciji Angelethy
Ariana Avery
Vermetia Batiste
Krystal Bourque
Imari Burse
Deshunda Christian
Rayon Craft
Kurtesdria Day

5

R. Doc. 173 at 1-10; see also Civil Action No. 19-11419, R. Doc. 1.
R. Doc. 102 at 15-16.
7
R. Docs. 80 & 81.
8
R. Doc. 408.
6

2

Tatyana Adams
Teresa Aras
Ameshia Bacon
Dominque Bell
Sabrina Boykins
Heavon Butler
Delaceia Clifton
Nickolaus Crawford
Irean Demuchast

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Elvie Disotell
Kanjanee Dunlap
Leggerd Gray
LaTiffany Harris
India Henderson
Destiny Hudgins
Brianna Johnson
Kaila Kelly
Kreller Kris
Garen Lea
Hannah Lyell
Desharme McClure
Alice Mitchell
Vera Perrilliat
Falisha Polk
Talor Rancifer
Wylika Roberts
Branley Sheita
Selena Smith
Jerry Square, Jr.
Stacey Thomas
Ronica Veals
Jennifer West
Tomisha Wilford
Kara Williams
Keryanna Wilson

Carrie Dixon
Morgan Echols
Keshonda Green
Dachel Hawkins
Miyiesha Henserson
April Huges
Kiera Johnson
Erana Kerry
Mareya Krouwel
Laquita Lee
Damone Lynch
Talisa Meeks
Ayanna Overton
Myal Pettigrew
Jadon Polk
Raelinda Ranker
Conswla Rudd
Branley Showalter
Tanisha Smith
Charles Squires
Hailey Tiley
Monica Wainwright
Nicholas West
Cleanelle Williams
Marsha Williams
Johneka Woods

Ka’Janea Dixon
Arrionnie Elmore
Candas Green
Jennifer Hebert
Brian Heyl, Jr.
Nije Jefferson
Morgan Johnson
Claudia King
Whitney Kyles
Natasha Lewis
Brianeka Massey
Erwinyone Miller
Jennifer Owen
Jennifer Pitre
Michelle Powell
Leila Richard
Hana Schiaro
Maurice Singelton
Patricio Somarriba
Rakira Stewart
Katrina Varisco
Rodteiffah Walter
Edward White
Diamond Williams
Perseus Williams
Dotson DeShannon

Chelsie Dufrene
Robin Fassler
Tayesha Gutter
Kimberly Heim
Lavette Holmes
Robin Jefferson
Victoria Juhasz
Mikia Kirton
Shanita Lawson
Rita Lirette
Alijah Matthews
Mionika Miller
Christian Perez
Cierra Plaisance
Litita Powells
Raquel Riveria
Bailey Searcy
Emony Smith
Anna Spiers
Candace Taylor
Vernada Vaughn
Drew Webb
Chelsea Whittle
Jennifer Williams
Courtney Wilson

To compile this list, defendants reviewed their employee time records – Delaget b-50 Total Hours
Worked reports (“b-50 reports”) – and found there was no record in the b-50 reports of any
overtime worked by the listed employees.9 Defendants support their motion by submitting the
Bates-stamped b-50 reports for each of the listed employees (Exhibit B),10 and a chart summarizing

9

R. Doc. 408-1 at 1-2 & 6 (citing R. Docs. 408-5 and 408-6).
R. Doc. 408-6.

10

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the information in those reports (Exhibit A).11 Defendants also submit a statement listing the
following material facts as uncontested:
1) All plaintiffs listed on Exhibit A were employed by Defendants;
2) All plaintiffs listed on Exhibit A have asserted either a claim for unpaid
overtime, a claim for unpaid minimum wage, or both;
3) Exhibit B contains all available time records (b-50 reports) for regular hours
worked, overtime hours worked (if any), and cash tips earned (if any), on a daily
basis, for each plaintiff listed on Exhibit A.12
Defendants seek dismissal of these server plaintiffs’ FLSA overtime claims, arguing that there is
no evidence that these server plaintiffs worked any overtime and thus are not owed any money.13
In opposition, plaintiffs argue that defendants have not proved that the listed server
plaintiffs did not work any overtime because defendants did not consider the payroll records in
conjunction with the b-50 reports.14 Plaintiffs argue that managers and assistant managers did not
clock-in, so there would not be b-50 reports for these employees.15 Plaintiffs argue that Elvie
Disotell, who worked as a server and as an assistant manager, is owed $8,320.00 in overtime
compensation for time she worked as an assistant manager as reflected by her payroll records
(which is not captured by the b-50 reports).16 Plaintiffs further argue that this motion cannot be
granted as to Anna Spiers, India Henderson, or Tarsha Coston because these server plaintiffs filed
their own well-supported summary-judgment motion (R. Doc. 410), and defendants conceded
liability to them (R. Doc. 432). With the evidence as to just these four employees (as opposed to
all the other listed plaintiffs that are the subject of this motion), plaintiffs argue that defendants’

11

R. Doc. 408-5.
R. Doc. 408-4.
13
R. Doc. 408-1 at 1-3 & 5-6.
14
R. Doc. 465 at 8-14.
15
Id.
16
Id. at 12.
12

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motion must be denied because defendants failed to present to the Court a complete and accurate
universe of all implicated server plaintiffs’ time and payroll records, which, according to plaintiffs,
casts doubt on the entirety of defendants’ analysis.17
Plaintiffs also argue that defendants’ motion is procedurally inadequate because Exhibit A
is an unauthenticated spreadsheet that was drafted by defense counsel and is not supported by an
affidavit or declaration explaining how the document was created.18 Further, plaintiffs urge that
defendants’ statement of uncontested material facts is inadequate because it does not have a
paragraph specific to each of the affected server plaintiffs, but rather lumps them together in a
single sentence.19
III.

LAW & ANALYSIS
A.

Summary Judgment Standard

Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed. R. Civ. P. 56(c)). “Rule 56(c) mandates
the entry of summary judgment, after adequate time for discovery and upon motion, against a party
who fails to make a showing sufficient to establish the existence of an element essential to that
party’s case, and on which the party will bear the burden of proof at trial.” Id. A party moving
for summary judgment bears the initial burden of demonstrating the basis for summary judgment

17

Id. at 14.
Id. at 5. In their motion, defendants refer to Exhibit A as an Excel spreadsheet. R. Doc. 408-1 at 1.
Plaintiffs complain that they never received an Excel spreadsheet, but rather Exhibit A, which is filed as R. Doc. 4085 in a .pdf format. R. Doc. 465 at 1 n.1. Defendants point out that the spreadsheet was created in Excel, but converted
to a .pdf format for electronic filing. R. Doc. 473 at 2. The Court is aware that its CM/ECF system requires documents
to be in .pdf format, and thus finds plaintiffs’ argument regarding the defendants’ supposed failure to produce an Excel
spreadsheet to be baseless.
19
R. Doc. 465 at 6-7.
18

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and identifying those portions of the record, discovery, and any affidavits supporting the
conclusion that there is no genuine issue of material fact. Id. at 323. If the moving party meets
that burden, then the nonmoving party must use evidence cognizable under Rule 56 to demonstrate
the existence of a genuine issue of material fact. Id. at 324.
A genuine issue of material fact exists if a reasonable jury could return a verdict for the
nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1996). The substantive
law identifies which facts are material. Id. Material facts are not genuinely disputed when a
rational trier of fact could not find for the nonmoving party upon a review of the record taken as a
whole. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Equal
Emp’t Opportunity Comm’n v. Simbaki, Ltd., 767 F.3d 475, 481 (5th Cir. 2014).
“[U]nsubstantiated assertions,” “conclusory allegations,” and merely colorable factual bases are
insufficient to defeat a motion for summary judgment. See Anderson, 477 U.S. at 249-50; Hopper
v. Frank, 16 F.3d 92, 97 (5th Cir. 1994). In ruling on a summary judgment motion, a court may
not resolve credibility issues or weigh evidence. See Delta & Pine Land Co. v. Nationwide
Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008). Furthermore, a court must assess the
evidence, review the facts, and draw any appropriate inferences based on the evidence in the light
most favorable to the party opposing summary judgment. See Tolan v. Cotton, 572 U.S. 650, 656
(2014); Daniels v. City of Arlington, 246 F.3d 500, 502 (5th Cir. 2001). Yet, a court only draws
reasonable inferences in favor of the nonmovant “when there is an actual controversy, that is, when
both parties have submitted evidence of contradictory facts.” Little v. Liquid Air Corp., 37 F.3d
1069, 1075 (5th Cir. 1994) (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990)).
After the movant demonstrates the absence of a genuine dispute, the nonmovant must
articulate specific facts and point to supporting, competent evidence that may be presented in a

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form admissible at trial. See Lynch Props., Inc. v. Potomac Ins. Co. of Ill., 140 F.3d 622, 625 (5th
Cir. 1998); Fed. R. Civ. P. 56(c)(1)(A) & (c)(2). Such facts must create more than “some
metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586. When the nonmovant
will bear the burden of proof at trial on the dispositive issue, the moving party may simply point
to insufficient admissible evidence to establish an essential element of the nonmovant’s claim in
order to satisfy its summary judgment burden. See Celotex, 477 U.S. at 322-25; Fed. R. Civ. P.
56(c)(B). Unless there is a genuine issue for trial that could support a judgment in favor of the
nonmovant, summary judgment must be granted. See Little, 37 F.3d at 1075-76.
B.

FLSA Overtime Claims

The FLSA requires employers to pay covered employees overtime compensation of at least
one and one-half times the regular rate of pay for any hours worked in excess of forty in a
workweek. 29 U.S.C. § 207(a)(1). If an employer violates the FLSA’s overtime provisions, it is
liable to the employee for the amount of the employee’s unpaid overtime compensation, as well as
“an additional equal amount as liquidated damages.” Id. § 216(b). The Fifth Circuit has explained
the burden of proof in an FLSA overtime case as follows:
“An employee bringing an action pursuant to the FLSA, based on unpaid overtime
compensation, must first demonstrate that [he or] she has performed work for which
[he or] she alleges [he or] she was not compensated.” [Harvill v. Westward
Commc’ns, LLC, 433 F.3d 428, 441 (5th Cir. 2005)] (citing Anderson v. Mount
Clemens Pottery Co., 328 U.S. 680, 687-88 (1946)).20 An employee has met [his
or] her requisite burden of proof if [he or] she proves that [he or] she has performed
work for which [he or] she was improperly compensated and if [he or] she produces
sufficient evidence to show the amount and extent of that work as a matter of “just
and reasonable inference.” Id. (citation omitted). “The burden shifts to the
employer to come forward with evidence of the precise amount of work performed
20
Defendants quote Anderson’s explanation of the shifting burden of proof. R. Doc. 408-1 at 5-6. Plaintiffs
argue that this amounts to a concession by defendants “that their time and payroll records are inaccurate.” R. Doc.
465 at 3. While it is true that the employer’s payroll records in Anderson were deemed to be inaccurate, 328 U.S. at
688, defendants’ citation to Anderson’s explanation of the shifting burden of proof in an FLSA overtime case is hardly
tantamount to an admission that defendants’ records are inaccurate. Many courts, including the Fifth Circuit, cite
Anderson for this same proposition. See, e.g., Harvill, 433 F.3d at 441.

7

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or with evidence to negate the reasonableness of the inference to be drawn from the
employee’s evidence.” Id. (citation omitted). “If the employer fails to produce such
evidence, the court may then award damages to the employee even though the result
may only be approximate.” Id. (citation omitted).
Ihegword v. Harris Cty. Hosp. Dist., 555 F. App’x 372, 374 (5th Cir. 2014) (original brackets and
parallel citation omitted).
In this case, defendants, as movants, submitted competent summary-judgment evidence
(namely, the b-50 reports) showing that the server plaintiffs listed in defendants’ motion did not
work any overtime.21 The summary-judgment burden then shifted to plaintiffs, but they have not
pointed to any positive evidence showing that the server plaintiffs listed (other than Disotell,
Spiers, Henderson, and Coston) are owed money for uncompensated overtime. Only plaintiffs
Disotell, Spiers, Henderson, and Coston carried their summary-judgment burden of demonstrating
they performed work for which they were not compensated, or at least a contested issue of material
fact on this score. The other plaintiffs failed to rebut defendants’ evidence with any of their own,
whether in the form of payroll records showing they worked overtime, or in the form of affidavits
by the plaintiffs stating that they worked overtime or that the b-50 reports are otherwise inaccurate
as to them. This failure of proof is especially relevant in light of the Fifth Circuit’s explanation in
Ihegword of a plaintiff’s affirmative burden of proof on the merits of an FLSA overtime claim.
As a result, on the record before the Court, defendants’ motion for partial summary judgment
regarding server plaintiffs who did not work any overtime must be granted (except as to Disotell,
Spiers, Henderson, and Coston).

21

R. Doc. 408-6. Plaintiffs’ complaints about the defendants’ compliance with summary-judgment
procedure are without merit. The chart in Exhibit A (R. Doc. 408-5) is nothing more than a summary of the time
records constituting Exhibit B (R. Doc. 408-6), and it was essentially compiled as a demonstrative for the Court’s
convenience. It is not, as plaintiffs argue, unexplained, improper summary-judgment evidence upon which defendants
“exclusively” rely (R. Doc. 465 at 5). Instead, defendants rely upon the b-50 reports (Exhibit B). Moreover, plaintiffs
fail to identify even one error in (and thus the unreliability of) Exhibit A’s summary of the time records for the server
plaintiffs at issue. And defendants’ statement of uncontested facts (particularly, the third paragraph), when considered
together with the time records in Exhibit B, which it expressly references, satisfies the requisites of Local Rule 56.1.

8

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IV.

CONCLUSION
Accordingly, for the reasons stated above,
IT IS ORDERED that defendants’ motion for partial summary judgment regarding server

plaintiffs who did not work any overtime (R. Doc. 408) is GRANTED in part, and the overtime
claims of all plaintiffs listed in the motion, except those of Elvie Disotell,22 Anna Spiers, India
Henderson, and Tarsha Coston, are DISMISSED WITH PREJUDICE. The motion is DENIED as
to Disotell, Spiers, Henderson, and Coston.
New Orleans, Louisiana, this 28th day of August, 2020.

_________________________________
BARRY W. ASHE
UNITED STATES DISTRICT JUDGE

22

Plaintiffs’ evidence as to Disotell is for time she worked as an assistant manager, not a server. As to all
other plaintiffs listed, this Order & Reasons is directed only to the lack of evidence that they worked overtime as
servers. This Order & Reasons does not affect any overtime claims the listed plaintiffs may have for work in a different
capacity.

9