Rodriguez v. Tarland LLC et al

Filing 62

Memorandum Opinion and Order granted 48 Motion for Summary Judgment filed by Tara Rubsamen. Tara Rubsamen terminated. (Ordered by Judge Ada Brown on 12/6/2019) (ndt)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
JAVIER RODRIGUEZ,
Plaintiff,
v.
TARLAND, LLC, THOMAS MCGILL,
and TARA RUBSAMEN,
Defendants.

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Civil No. 3:18-CV-00088-E

MEMORANDUM OPINION AND ORDER
Before the Court is Defendant Tara Rubsamen’s Motion for Summary
Judgment with brief and appendix in support (Docs. 48-50), as well as
Plaintiff Javier Rodriguez’s Response, and Rubsamen’s Reply.

Rubsamen

contends she is entitled to judgment as a matter of law on Plaintiff’s claims
against her because she cannot be considered an employer under the Fair
Labor Standards Act (FLSA).

After considering the pleadings, summary

judgment evidence, and applicable law, the Court grants Rubsamen’s Motion
for Summary Judgment.
Plaintiff brings this FLSA action individually, and on behalf of all others
similarly situated, against Rubsamen and two other Defendants—Thomas
McGill and Tarland, LLC. In his live pleading, Plaintiff alleges that he was
employed by the three Defendants to work at Sol Irlandes Mexican restaurant
in Dallas. Plaintiff alleges he worked at the restaurant from August 2006 to
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January 2018.

He worked in various capacities, including dish washer,

kitchen prepper, and maintenance, and worked an average of 45 hours per
week. He asserts claims for overtime wage violations.
The FLSA provides that “no employer shall employ any of his employees
. . . for a workweek longer than forty hours unless such employee receives
compensation for his employment in excess of the hours above specified at a
rate not less than one and one-half times the regular rate at which he is
employed.” 29 U.S.C. § 207(a)(1); Johnson v. Heckmann Water Res. (CVR),
Inc., 758 F.3d 627, 630 (5th Cir. 2014).

Thus, among other things, an

employee bringing an action for unpaid overtime compensation under the
FLSA must demonstrate the existence of an employer/employee relationship
during the relevant time period. Johnson, 758 F.3d at 630. 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).
Rubsamen has moved for summary judgment on grounds that she is not
Plaintiff’s employer under the FLSA. To be entitled to summary judgment, a
party must show there is no genuine dispute as to any material fact and she
is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The party
moving for summary judgment bears the initial burden of informing the court
of the basis for her motion and identifying the portions of the record that she
believes demonstrate the absence of a genuine issue of material fact.
Meinecke v. H & R Block of Houston, 66 F.3d 77, 81 (5th Cir. 1995). If the
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movant meets her burden, the burden shifts to the nonmovant to establish
the existence of a genuine issue for trial. Id. In ruling on the summary
judgment motion, this Court reviews the evidence and the inferences to be
drawn therefrom in the light most favorable to the nonmovant. Norman v.
Apache Corp., 19 F.3d 1017, 1021 (5th Cir. 1994).
To evaluate whether there is an employer/employee relationship, the
Fifth Circuit uses the “economic reality” test. Gray v. Powers, 673 F.3d 352,
354 (5th Cir. 2012). Under this test, the Court considers 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. at 355.

Each element need not be

present in every case. Id. at 357. In cases where there may be more than one
employer, the Court must apply the test to each individual or entity alleged
to be an employer and each must satisfy the four-part test. Id. at 355.
Rubsamen contends that none of the four factors of the economic reality
test weigh in favor of her being Plaintiff’s employer. Her summary judgment
evidence consists of her affidavit and Plaintiff’s deposition. According to her
affidavit, Rubsamen was an investor and member of Tarland, the limited
liability company that owned and operated Sol Irlandes. Tarland was the
employer of all employees at Sol Irlandes.

Defendant McGill was also a

member of Tarland, and he managed the day-to-day operations of the
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restaurant. Rubsamen states that McGill, as restaurant manager, made all
hiring and firing decisions, supervised and controlled all employees and their
work schedules, determined the employees’ rate and method of payment, and
maintained employment records. Rubsamen states that she was not involved
in the day-to-day operations of Sol Irlandes.

She occasionally ate at the

restaurant and sporadically provided new floral arrangements for the
restaurant. At no time was she employed by Sol Irlandes. Further, Rubsamen
testified that she did not hire Plaintiff, supervise his work, determine the rate
and method of payment of his wages, sign his paycheck, or maintain his
employment records. Nor did she do this for any employees of the restaurant.
In his deposition, Plaintiff testified that he worked for the restaurant
for ten years. Plaintiff testified that McGill and Rubsamen were the owners
of the restaurant; Plaintiff believed they were husband and wife. The kitchen
managers, Juan Carlos Pantoja and Ricky Mendoza, generally hired
employees. Plaintiff was hired by Pantoja. Plaintiff testified that Pantoja and
Mendoza were his supervisors, but they took their direction from McGill.
Plaintiff requested raises in his hourly wage from Pantoja and Mendoza.
Pantoja and Mendoza went to McGill for approval of increases in Plaintiff’s
pay.

McGill gave Plaintiff his paychecks.

Plaintiff quit working at the

restaurant because McGill promised to pay him money owed for overtime, but
never did.

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Plaintiff saw Rubsamen many times at the restaurant. She was not at
the restaurant as frequently as McGill. She “would just show up to, you know,
look around and see if everything was going well.” Most of the time she spoke
to the kitchen managers. Sometimes she changed the floral arrangements.
When asked if she did additional things at the restaurant besides floral
arrangements, Plaintiff answered “no.”

Plaintiff testified that Rubsamen

never directed or supervised his work or hours of employment.

McGill

supervised his work. Plaintiff did not know whether Rubsamen had any input
on hiring employees for the restaurant.
In his summary judgment response, Plaintiff asserts there are genuine
issues of material fact regarding whether Rubsamen’s involvement in
Tarland’s operations was sufficient to make her an employer. Plaintiff relies
on his deposition, as well as Rubsamen’s deposition and records from the
Texas Secretary of State for Tarland and for another restaurant Rubsamen
was involved in.
In her deposition, Rubsamen testified that she has a BBA in finance,
marketing, and real estate and started to pursue a master’s degree in
business. She worked as a stockbroker in the past. She met McGill in about
2000. They have a child together, and McGill lived with Rubsamen for a
period of time. She and McGill started Tarland in about 2007. She invested
$500,000 in Tarland. Rubsamen testified that she visited Sol Irlandes about
once a quarter to check in.
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To show there are fact issues, Plaintiff cites the following evidence:
Rubsamen came to the restaurant many times and visited the kitchen
managers. The kitchen managers were in charge of Plaintiff’s hourly wage.
Plaintiff knew Rubsamen. Rubsamen owned the restaurant. She and McGill
started Tarland and were its only members.

She invested $500,000 in

Tarland and received distributions from Tarland. She and McGill are married
and have a child.

Rubsamen is the manager of a different restaurant in

McKinney, Texas. Rubsamen visited Sol Irlandes once per quarter to see how
things were operating.
Rubsamen relies on Gray v. Powers to support her position. In that FLSA
case, Gray, a bartender and later a general manager at a nightclub, sued the
LLC that ran the club, as well as Powers, a member of the LLC. Gray, 673 F.3d
at 353. Powers invested $100,000 and supervised a remodel job of the club.
After construction was complete, Powers was not involved in day-to-day
operations of the club. Id. Powers and other members of the LLC collectively
hired and terminated the general manager. Id. at 355. Powers visited the
club five or six times over the seventeen months it was open. Id. at 353. Like
Rubsamen, Powers denied supervising any employee, controlling work
schedules, or maintaining employee records. Id. Powers was a signatory on
the LLC’s checking account and occasionally signed pre-printed checks. Id. at
353–54. Other members were “much more involved in the operation of the
club.” Id. at 354. Gray admitted in a deposition that Powers was not involved
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in the club’s day-to-day operations.

Id.

While visiting the club socially,

Powers did tell Gray once he was doing a “great job” and twice asked Gray to
serve specific people. Id. at 354, 356. Gray could not remember any other
occasion when Powers directed his work. Id. at 354.
The Fifth Circuit analyzed the case using the economic reality test. In
analyzing the first factor, the power to hire and fire employees, it determined
that Powers’s participation in joint decisions to hire and fire general
managers was not evidence he had individual authority to control the
employment terms of lower-level employees.

Id. at 355.

Further such

authority could not be inferred from Powers’s position as a member and
officer of the LLC. Id. Employer status may be appropriate where operational
control coincides with one’s position as a shareholder, officer, or owner. Id.
As for the second factor, supervision or control of employee work schedules
or conditions of employment, the appellate court determined that the isolated
events—Powers once told Gray he was doing a “great job” and twice asked
Gray to serve specific people—were “too paltry” to support an inference of
control. Id. at 356–57. And evidence that Powers occasionally signed checks
for the club did not indicate he determined employees’ pay rates or method
of payment, the third factor. Id. at 357. Finally, there was no evidence that
Powers maintained employment records. Id. After applying the economic
reality test, the Fifth Circuit upheld the district court’s conclusion that no
reasonable jury could have found Powers to be an employer. Id.
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Plaintiff attempts to distinguish Gray.

He argues that Powers only

visited the club five or six times, whereas Rubsamen, a “sophisticated
businesswoman,” visited the restaurant quarterly during the eleven years it
was in business, which amounts to more than forty times. During the visits,
Rubsamen met with Plaintiff’s direct supervisors, the kitchen managers who
controlled his pay and working conditions. Plaintiff argues Rubsamen was
acting directly or indirectly in the interest of McGill and Tarland. In addition,
Plaintiff asserts she had control of Tarland as an owner and investor.
Plaintiff’s summary judgment evidence is even less compelling than
that of the plaintiff in Gray. And Plaintiff does not successfully distinguish
Gray. The Court sees little distinction between vising a club five or six times
over seventeen months and visiting a restaurant quarterly for eleven years.
Rubsamen established that none of the economic-reality-test factors weigh in
favor of her being considered Plaintiff’s employer, and Plaintiff has failed to
raise a fact issue. Rubsamen states she did not have power to hire and fire
employees. Plaintiff did not contradict this; he merely stated he did not know
whether she had input into hiring and firing. Rubsamen and Plaintiff both
testified that Rubsamen did not supervise Plaintiff’s work.

Evidence

Rubsamen spoke to the kitchen managers, who had supervisory authority
over Plaintiff, about unknown topics when she visited the restaurant is no
more than a scintilla of evidence. Next, the evidence shows McGill approved
increases in Plaintiff’s pay rate upon request from the kitchen managers.
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There is no evidence to create a fact issue about whether Rubsamen
determined Plaintiff’s rate or method of payment.

Finally, there is no

evidence that Rubsamen maintained any employment records. Rubsamen’s
status as a member and investor of Tarland, without any evidence of
operational control, is not evidence Rubsamen was Plaintiff’s employer. As
in Gray, Rubsamen was simply not sufficiently involved in the operation of
the restaurant to be an employer under the FLSA. See id. at 357.
Defendant Rubsamen’s motion for summary judgment is GRANTED.
SO ORDERED.
Signed December 6, 2019.
_____________________________
ADA BROWN
UNITED STATES DISTRICT JUDGE

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