Dean v. Billings et al

Filing 15

ORDER denying 12 Defendant Michael Billings' Amended Motion to Dismiss and finding as moot 11 Defendant Michael Billings' Motion to Dismiss (as more fully set out). Signed by Honorable Vicki Miles-LaGrange on 5/12/2017. (ks)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
URIKA DEAN, on behalf of herself,
and all others similarly situated,
Plaintiff,
v.
MICHAEL BILLINGS d/b/a
MIDWAY ISLAND, and
MIDWAY ISLAND, LLC,
Defendants.

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Case No. CIV-16-1459-M

ORDER
Before the Court is Defendant Michael Billings’ Amended Motion to Dismiss, filed March
8, 2017. On March 28, 2017, plaintiff responded. No reply has been filed. Based on the parties’
submissions, the Court makes its determination.
I.

Introduction
Plaintiff filed this action against defendants Michael Billings d/b/a Midway Island

(“Billings”) and Midway Island, LLC (collectively “Defendants”) on behalf of herself and others
similarly situated alleging Defendants violated the Fair Labor Standards Act (“FLSA”) and the
Oklahoma Minimum Wage Act. Plaintiff was employed by Defendants from June 2013 through
February 2014, as an exotic dancer at Midway Island, a club located in Oklahoma City. Plaintiff
alleges that Defendants deprived plaintiff, and others similarly situated, of compensation through
the following practices, decisions or plan:
(a)
Requiring adult entertainers and other employees to perform
work without compensation;
(b)
Requiring adult entertainers and other employees to perform
work without compensation during times for which they could not
receive tips;

(c)
Refusing to compensate adult entertainers one and one half
times minimum wage when their total hours worked exceed 40
hours;
(d)
Requiring adult entertainers to share tips with non-tipped
employees;
and
(e)

Requiring adult entertainers to pay fees for the right to work.

Compl. ¶¶ 12. Further, plaintiff alleges that Defendants misclassified all adult entertainers at
Midway Island as independent contractors but established specific work schedules, dictated the
specific times and manner in which the adult entertainers interacted with customers and danced on
stage, and required the adult entertainers, including plaintiff, to wear specific types of attire while
performing. Additionally, plaintiff alleges Defendants required the adult entertainers, including
plaintiff, to pay a house fee or bar fee to qualify to work a given shift, and a disc jockey fee.
Plaintiff alleges the amount of the fees varied from night to night, event to event.
Plaintiff further alleges that adult entertainers, including plaintiff, were to pay a percentage
of all gratuities received back to Midway Island, which constituted an illegal tip sharing
arrangement with non-tipped employees and represented an illegal kickback within the meaning
of the FLSA. Plaintiff also alleges Defendants never paid the adult entertainers, including plaintiff,
any amount of wages and their sole source of work-related income during their employment with
Defendants was gratuities received from paying customers. Plaintiff alleges that Defendants knew
or should have known that misclassifying plaintiff as an independent contractor instead of the
appropriate employee designation was a violation of the FLSA.
Billings now moves this Court to dismiss this matter against him, pursuant to Federal Rule
of Civil Procedure 12(b)(6), for failure to state a claim upon which relief can be granted against
him.
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II.

Standard for Dismissal
Regarding the standard for determining whether to dismiss a claim pursuant to Federal

Rule of Civil Procedure 12(b)(6), the United States Supreme Court has held:
To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is
plausible on its face. A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct
alleged. The plausibility standard is not akin to a “probability
requirement,” but it asks for more than a sheer possibility that a
defendant has acted unlawfully. Where a complaint pleads facts that
are merely consistent with a defendant’s liability, it stops short of
the line between possibility and plausibility of entitlement to relief.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations and citations omitted). Further,
“where the well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged – but it has not shown – that the pleader is entitled to relief.”
Id. at 679 (internal quotations and citations omitted). Additionally, “[a] pleading that offers labels
and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does
a complaint suffice if it tenders naked assertion[s] devoid of further factual enhancement.” Id. at
678 (internal quotations and citations omitted). “While the 12(b)(6) standard does not require that
Plaintiff establish a prima facie case in her complaint, the elements of each alleged cause of action
help to determine whether Plaintiff has set forth a plausible claim.” Khalik v. United Air Lines,
671 F.3d 1188, 1192 (10th Cir. 2012). Finally, “[a] court reviewing the sufficiency of a complaint
presumes all of plaintiff’s factual allegations are true and construes them in the light most favorable
to the plaintiff.” Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991).

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III.

Discussion
Billings contends that this matter should be dismissed against him because plaintiff does

not plead any facts that would support a finding that he is an employer as defined under the FLSA,
or that plaintiff and Billings were in an employee – employer relationship as contemplated by the
Act. 1 Plaintiff contends that Billings is subject to individual liability under the FLSA and the
Oklahoma Minimum Wage Act.
The FLSA defines employer as “any person acting directly or indirectly in the interest of
an employer in relation to an employee . . . ,” 29 U.S.C. § 203(d), and the Oklahoma Minimum
Wage Act defines employer as:
any individual, partnership, association, corporation, business trust,
or any person or group of persons, hiring more than ten full-time
employees or equivalent at any one location or place of business;
provided, however, if an employer has less than ten full-time
employees or equivalent at any one location or place of business but
does a gross business of more than One Hundred Thousand Dollars
($100,000.00) annually, said employer shall not be exempt under
the provisions of this act.
Okla. Stat. tit. 40, § 197.4(d). Further, Oklahoma courts and the Tenth Circuit apply the economicreality test to determine whether an individual is an employer under the FLSA. See Washington v.
Cornell Corrections, Inc., 30 P.3d 1162, 1164 (Okla. Civ. App. 2001); see also Saavedra v. Lowe’s
Home Ctrs., Inc., 748 F. Supp. 2d 1273, 1286 (D.N.M. Sept. 10, 2010) (citing Baker v. Flint Eng'g
& Const. Co., 137 F.3d 1436, 1440 (10th Cir.1998)) (“The economic reality test includes inquiries
into whether the alleged employer has the power to hire and fire employees, supervises and
controls employee work schedules or conditions of employment, determines the rate and method
of payment, and maintains employment records.”).

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Billings asserts the same contention as to plaintiff’s claim for violation of the Oklahoma
Minimum Wage Act.
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Having carefully reviewed plaintiff’s Complaint, and presuming all of plaintiff’s factual
allegations are true and construing them in the light most favorable to plaintiff, the Court finds that
plaintiff has sufficiently pled facts demonstrating that Billings was an employer as defined by the
FLSA and the Oklahoma Minimum Wage Act. Billings contends that plaintiff does not specifically
mention Billings’ operational control over Midway Island, including his ability to hire or fire
employees, oversee conditions of employment, set the rate and method of payment, or maintain
employment records; nor did plaintiff mention that Billings was involved in the day-to-day
operation of the company or the supervision of employees. Plaintiff, however, specifically states
in the beginning paragraph of her Complaint that she “brings this action … against … defendant
Michael Billings (d/b/a/) Midway Island and Midway Island, LLC … (hereinafter referred to
collectively as ‘Defendant’ or ‘Midway Island’).” Compl. at 1. The Court finds that plaintiff’s
reference to Defendants in her Complaint includes specific allegations against Billings
individually, see Compl. ¶¶ (9-25), that are sufficient enough to allow the Court to draw the
reasonable inference that Billings, individually, has violated the FLSA and the Oklahoma
Minimum Wage Act. Therefore, the Court finds that Billings should not be dismissed from this
matter.
IV.

Conclusion
Accordingly, for the reasons set forth above, the Court DENIES Defendant Michael

Billings’ Amended Motion to Dismiss [docket no. 12] and FINDS that Defendant Michael
Billings’ Motion to Dismiss [docket no. 11] is MOOT.
IT IS SO ORDERED this 12th day of May, 2017.

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