Fontenot v. Brouillette
Filing
127
OPINION AND ORDER granting in part and denying in part 87 Defts' Motion for Summary Judgment.(Signed by Judge Melinda Harmon) Parties notified.(htippen, )
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
RACHEL FONTENOT,
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Plaintiff,
VS.
JOHN BROUILLETTE, et al,
Defendants.
CIVIL ACTION NO. 4:10-CV-01053
OPINION AND ORDER
Pending before the Court is Defendants’ Motion for Complete Summary Judgment (Doc.
87) against claims made in Plaintiff Rachel Fontenot’s (“Fontenot”) First Amended Complaint
(Doc. 12). Defendants include John Brouillette (“Brouillette”) and Sterling Energy, Inc., Whittier
Energy Co., Rimco Production Co., Inc., Atinum Energy, Inc., Atinum Operating, Inc., and
Atinum E&P, Inc. (corporate entities, collectively, “Atinum”). Plaintiff’s complaint asserted
claims against Atinum for sex-based discrimination and retaliation under Title VII,1 against all
Defendants for unpaid overtime compensation under the Fair Labor Standards Act2 and for
assault and battery, and against Brouillette for intentional infliction of emotional distress (IIED).
Having considered the Parties’ arguments,3 the facts of the case, and the applicable law,
the Court holds that the Defendants’ motion should be granted in part and denied in part.
I.
Background
A.
Factual Background
Plaintiff alleges the following facts supported by declarations and deposition testimony:
1
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (2006).
Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. §§ 201-219 (2006).
3
Defs.’ Mot., Doc. 87; Pl.’s Am. Resp., Doc. 118; Defs.’ Reply, Doc. 119; Defs.’ Suppl. Br., Doc. 120; Pl.’s
Surreply, Doc. 106.
2
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In 2005, Fontenot began performing legal support services for Brouillette while he was a
practicing attorney in Lafayette, Louisiana, and later in 2005, the two began a consensual sexual
relationship. Pl.’s Am. Resp. 8. In 2006, when Atinum hired Brouillette as a land manager,
Fontenot continued to perform personal services for Brouillette while also beginning to work for
Atinum, which paid her as an independent contractor. Id. at 9. During this time, Fontenot worked
in Brouillette’s former Lafayette office, which was paid for by both Brouillette and Atinum, but
two or three weeks per month Fontenot was also required to work in Houston, Texas, either at
Atinum’s offices or Brouillette’s apartment. Id. at 10-11. Atinum provided Fontenot with
computers and other equipment necessary to perform her job; Brouillette controlled her working
hours, her assignments, and the manner in which she completed them. Id. at 11-12. Brouillette
also requested that she discontinue outside work in order to focus on her work for Atinum and
required her to attend Atinum meetings, classes, and social functions in Houston. Id. at 13, 15.
In 2008, Fontenot ended her sexual relationship with Brouillette, but Brouillette
continued to pursue the relationship, repeatedly making unsolicited sexual comments and
sending her sexually explicit pictures and messages. Id. at 20. Brouillette also withheld her
paychecks and frequently communicated with her in a threatening tone, causing Fontenot to fear
for her and her family’s safety. Id. at 21-23. Brouillette had been physically violent with
Fontenot during their relationship, and in February 2008, when she attempted to end the
relationship, he became violent with her twice more, grabbing her each time and shaking her. Id.
at 28-29. Brouillette’s sexual communications continued on almost a daily basis until Fontenot
was fired in February 2009. Id. at 20. When she was fired, Brouillette told her it was because she
was seeing someone else and that he had waited a year to make the firing “look legal.” Id. at 24.
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B.
Procedural Background
On February 5, 2010, Fontenot and Brouillette signed a tolling agreement, effective
February 4 and terminating on April 1, 2010, “agree[ing] that all applicable statutes of
limitations as to any and all claims that Ms. Fontenot may have against John Brouillette under
any State law causes of action for negligence, assault, offensive physical touching, shall be
tolled.” Agreement to Toll Statute of Limitations (“Tolling Agreement”), Doc. 118-24. On
March 31, 2010, Plaintiff filed her original complaint and on September 27, 2010, filed her
amended complaint.
II.
Legal Standard
Summary judgment is proper if “there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The substantive law
governing the claims determines the elements essential to the outcome of the case and thus
determines which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A dispute over such a fact is genuine if the evidence presents an issue “that properly can be
resolved only by a finder of fact because [it] may reasonably be resolved in favor of either
party.” Id. at 250.
The moving party bears the burden of identifying evidence that no genuine issue of
material fact exists, Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), and the court must view
that evidence in the light most favorable to the nonmoving party, Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986). But where the nonmovant bears the burden of
proof at trial, the movant need only point to the absence of evidence supporting an essential
element of the nonmovant’s case; it does not have to support its motion with evidence negating
the case. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). If the movant succeeds,
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the nonmovant can defeat the motion for summary judgment only by identifying specific
evidence of a genuine issue of material fact, Anderson, 477 U.S. at 248-49, but that evidence
need not be in a form that would be admissible at trial, Celotex, 477 U.S. at 324.
III.
Analysis
A.
Title VII Claims Against Atinum
Defendant Atinum argues that Plaintiff cannot be considered an employee under Title VII
either in official title or in practice: “in title” because she formed her own corporation and
conducted business through that corporation as an independent contractor, and “in practice”
because Atinum did not possess the “right to control” necessary to establish a de facto
employer/employee relationship. Defs.’ Mot. 19-20. The first statement, though probative, is not
conclusive—and only one of several factors to consider. The second statement, while conclusive
if true, cannot be determined as true without first examining all of the relevant facts. It is
precisely these facts which are in dispute and, therefore, which preclude the entry of summary
judgment.
It is well settled in the Fifth Circuit that employee status for Title VII purposes is
determined by applying “the hybrid economic realities/common law control test.” Arbaugh v.
Y&H Corp., 380 F.3d 219, 226 (5th Cir. 2004), rev’d on other grounds, 546 U.S. 500 (2006).
The focus of the economic realities component is on “whether the alleged employer paid the
employee’s salary, withheld taxes, provided benefits, and set the terms and conditions of
employment.” Muhammad v. Dallas Cnty. Cmty. Supervision & Corr. Dep’t, 479 F.3d 377, 380
(5th Cir. 2007) (quoting Deal v. State Farm Cnty. Mut. Ins. Co. of Tex., 5 F.3d 117, 119 (5th Cir.
1993)). But the more important component is “the extent of the employer’s right to control the
‘means and manner’ of the worker’s performance,” Arbaugh, 380 F.3d at 226, and the most
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important factors in this determination are “whether the alleged employer has the right to hire,
fire, supervise, and set the work schedule of the employee.” Muhammad, 479 F.3d at 380
(internal quotation marks omitted) (quoting Deal, 5 F.3d at 119). Although this right to control is
not alone determinative, it is the most significant factor,4 and the question of employee status
under Title VII can be answered only by viewing the totality of the circumstances with a sharp
focus on the alleged employer’s right to control the worker’s performance. Broussard v. L.H.
Bossier, Inc., 789 F.2d 1158, 1160 (5th Cir. 1986) (citing Spirides v. Reinhardt, 613 F.2d 826,
831 (D.C. Cir. 1979)).
Given that standard, it is clear that Plaintiff’s work for Atinum under a corporate name is
just one factor to be considered in the legal analysis. See, e.g., E.E.O.C. v. Fawn Vendors, Inc.,
965 F. Supp. 909, 911 (S.D. Tex. 1996) (finding employee status despite salesperson signing
agreement identifying self as “independent agent,” being paid by commission only, receiving no
benefits, and having no taxes withheld by “employer”); McCracken v. Exxon Mobil Corp., No.
Civ. A. H-03-5726, 2006 WL 456252 (S.D. Tex. Feb. 23, 2006) (finding genuine issue of
material fact as to employee status despite contract stipulating that plaintiff was not an employee
but only an independent contractor). Additional facts alleged by Atinum include that: (1)
Plaintiff set her own work schedule and supervised her own employees; (2) Atinum did not pay
4
Other factors that the Fifth Circuit has recognized as relevant to determining employee status include:
(1) the kind of occupation, with reference to whether the work usually is done under the direction
of a supervisor or is done by a specialist without supervision; (2) the skill required in the particular
occupation; (3) whether the “employer” or the individual in question furnishes the equipment used
and the place of work; (4) the length of time during which the individual has worked; (5) the
method of payment, whether by time or by the job; (6) the manner in which the work relationship
is terminated; i.e., by one or both parties, with or without notice and explanation; (7) whether
annual leave is afforded; (8) whether the work is an integral part of the business of the
“employer”; (9) whether the worker accumulates retirement benefits; (10) whether the “employer”
pays social security taxes; and (11) the intention of the parties.
Broussard v. L.H. Bossier, Inc., 789 F.2d 1158, 1160 (5th Cir. 1986) (citing Spirides v. Reinhardt, 613 F.2d 826,
832 (D.C. Cir. 1979)).
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Plaintiff’s salary, withhold taxes, provide benefits, or set the terms of her employment, and
Plaintiff acknowledged as much by generating profits through self-employment and declaring so
on her tax returns; (3) Plaintiff, through her own businesses, performed services for at least seven
other oil and gas companies; and (4) Atinum did not determine Plaintiff’s rate or method of
payment or maintain her employment records, as she did so herself for her own corporate
entities. Defs.’ Mot. 19-24.
In response, Plaintiff alleges facts addressing multiple factors of the hybrid test, each fact
supported by evidence in the record, including declarations and deposition testimony. For present
purposes, the focus is on the allegations addressing the four most important factors: “whether the
alleged employer has the right to hire, fire, supervise, and set the work schedule of the
employee.” Muhammad, 479 F.3d at 380.
The first indicator of an alleged employer’s right to control is its ability to hire the
individual worker. Plaintiff alleges that Atinum could not have hired her corporation, “Back
Office,” because it did not exist at the time. Pl.’s Am. Resp. 9. Instead, Atinum hired her as an
individual—but only on the condition that she not be paid directly but through a company, which
she then created. Id. In other words, she formed Back Office to fulfill a condition of her
employment with Atinum, not to do business as an independent contractor. Although she later
performed some work through Back Office for other entities, that work was minimal, earning
less than $3,000 total during the three years she was with Atinum, and most of those entities
shared business interests with Atinum and were referred to Plaintiff by Brouillette. Id. at 13.
Moreover, Brouillette required her to discontinue her separate cleaning business, which she did,
and requested that she perform no other outside work without his approval and supervision. Id.
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The second indicator of the right to control is the right to fire the worker. Plaintiff alleges
that Brouillette told her in January 2006 that her working relationship with Atinum would be
“permanent” as long as he was there, id. at 9, then terminated this working relationship in
February 2009 by firing her, id. at 24. Plaintiff supports her contention that Atinum fired her as
an individual, rather than terminating Back Office as an independent contractor, by pointing to
the story of Rachel Guidry, a landman. Plaintiff alleges that Brouillette instructed her to hire
Guidry for Atinum and to bill Guidry’s services under the Back Office name. Id. at 16. When
Plaintiff was fired, however, Atinum continued to use Guidry’s services, changing only the
method of billing her work. Id. at 27.
The third indicator is the right to supervise. Plaintiff alleges that Brouillette supervised
her directly, telling her which assignments to complete, how to complete them, and in what
order, id. at 12, and gave her regular performance evaluations, id. at 17. On a typical day in the
Lafayette office, she received multiple emails and phone calls from Brouillette giving her
specific instructions on her work assignments. Id. at 12. Although Plaintiff sometimes hired other
workers through Back Office, Atinum directed her to do so and then directed the work of those
individuals. Id. at 16-17.
Fourth, regarding the alleged employer’s right to set the work schedule, Plaintiff alleges
that Brouillette did indeed set her daily schedule, telling her at which office to conduct her work,
when to arrive, and when to leave. Id. at 11. Furthermore, Atinum required her to attend
company meetings and classes at the corporate offices in Houston, id. at 13, and to help plan and
attend corporate social functions, id. at 15.
Taken as a whole and in the light most favorable to the nonmoving party, these
circumstances create a genuine issue as to Atinum’s right to control Plaintiff’s performance and,
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as a consequence, their relationship under Title VII. Atinum cannot show that no issue of
material fact exists, and summary judgment on this issue must be denied.
B.
FLSA Claim
1.
Against Atinum
Defendant Atinum argues that Plaintiff cannot be considered an employee under the
FLSA for the same reasons she cannot be considered under Title VII: she was not Atinum’s
employee but rather an independent contractor doing business for her own company. Defs.’ Mot.
19. But, as above, the facts alleged by Atinum are not alone determinative and must be
considered under the totality of the circumstances. See, e.g., Usery v. Pilgrim Equip. Co., 527
F.2d 1308, 1311, 1315 (5th Cir. 1976) (rejecting “[t]he common law concepts of ‘employee’ and
‘independent contractor’” and instead finding that “[b]roader economic realities are
determinative” of protection under the FLSA).
“The Fifth Circuit uses the ‘economic reality’ test to evaluate whether there is an
employer/employee relationship [under the FLSA].” Gray v. Powers, 673 F.3d 352, 354-55 (5th
Cir. 2012) (citing Williams v. Henagan, 595 F.3d 610, 620 (5th Cir. 2010)). Factors considered
under the economic reality test include, but are not limited to, “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.’” Watson v. Graves, 909 F.2d 1549, 1553 (5th Cir.
1990) (quoting Williams, 595 F.3d at 620).5
5
The Fifth Circuit has stated the factors differently in different contexts, for example:
(1) the degree of control exercised by the alleged employer; (2) the extent of the relative
investments of the putative employee and employer; (3) the degree to which the “employee’s”
opportunity for profit and loss is determined by the “employer”; (4) the skill and initiative required
in performing the job; and (5) the permanency of the relationship.
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Atinum meets its initial burden under the summary judgment standard by alleging the
same facts as those alleged in the Title VII context, Defs.’ Mot. 19-24; Plaintiff’s allegations in
that context are also relevant here. Plaintiff further alleges that Atinum provided her with offices
in Lafayette and Houston, supplied computers and computer software, supplied a telephone and
paid her phone bill, provided her with office supplies and reimbursed her for her own purchases,
reimbursed her for mileage, and paid for professional training. Pl.’s Am. Resp. 10-11. All these
weigh in favor of finding employee status. See Hopkins v. Cornerstone Am., 545 F.3d 338 (5th
Cir. 2008) (comparing each worker’s individual investment with that of the alleged employer).
Plaintiff also claims that she generally performed only routine clerical and administrative duties
that did not require unique skills, Pl.’s Am. Resp. 13-15, and was hired on a “permanent” basis,
continuing almost full-time employment for three years, id. at 9. Both of these claims support a
finding of employee status. See Hopkins, 545 F.3d 338 (weighing the lack of need for unique
skills and the length of the working relationship, among other factors, in favor of finding
employee status under the FLSA).
Again, as in the Title VII context, the totality of the circumstances creates a genuine issue
with respect to the “economic reality” of the working relationship between Atinum and Plaintiff;
therefore, summary judgment on this issue must be denied.
2.
Against Brouillette
Defendant Brouillette argues that he cannot be liable under the FLSA because Plaintiff
has not worked for him since early 2006—outside the statute of limitations. Defs.’ Mot. 25.
Brock v. Mr. W Fireworks, Inc., 814 F.2d 1042, 1043 (5th Cir. 1987). The bottom line is that these lists are not
exhaustive but are merely representative aids for determining whether, when considering the totality of the
circumstances, there is sufficient economic dependency to establish an employer/employee relationship under the
FLSA. Id. Other factors can be used only if they are relevant to assessing the economic reality of the situation. Id.;
see also Weisel v. Singapore Joint Venture, Inc., 602 F.2d 1185, 1189 (5th Cir. 1979) (emphasizing that no one
factor is controlling or the list complete but all factors must address the “economic reality”).
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Under the FLSA, however, the definition of employer “includes any person acting directly or
indirectly in the interest of an employer in relation to an employee.” 29 U.S.C. § 203(d). As a
result, a corporation’s status as employer does not preclude a corporate officer’s simultaneous
status as employer, and the economic reality test must be applied to each individual or entity.
Watson, 909 F.2d at 1556. “[T]hose who have operating control over employees within
companies may be individually liable for FLSA violations committed by the companies. An
individual’s operational control can be shown through his power to hire and fire, ability to
supervise, power to set wages, and maintenance of employment records.” Gray, 673 F.3d at 357.
“In cases where there may be more than one employer, this court ‘must apply the economic
realities test to each individual or entity alleged to be an employer and each must satisfy the four
part test.’” Id. at 355 (quoting Watson, 909 F.2d at 1556).
Brouillette does not identify an absence of evidence supporting this element of the
Plaintiff’s case. On the contrary, as discussed above there are substantial allegations supporting a
finding that Brouillette may have had sufficient operational control over Plaintiff to be held
individually liable as an employer. Brouillette simply fails to meet his initial burden under the
summary judgment standard.
C.
Assault and Battery Claim
Defendants argue that because Plaintiff alleges incidents of assault and battery in
February 2008 but did not file suit until March 2010, her claims are barred by the two-year
statute of limitations under Texas state law. Defs.’ Mot. 8. Plaintiff responds by pointing to a
tolling agreement signed by her and Brouillette.
1.
Against Atinum
Although “Texas law has long recognized that nonparties may be bound to a contract
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under various legal principles,” In re Weekley Homes, L.P., 180 S.W.3d 127, 131 (Tex. 2005), “a
principal may only be held liable for the representations made by its agent while acting within
the scope of the agent’s authority,” Weyant v. Acceptance Ins. Co., 917 F.2d 209, 212 (5th Cir.
1990) (citing Biggs v. U.S. Fire Ins. Co., 611 S.W.2d 624, 629 (Tex. 1981)). Plaintiff neither
alleges any facts nor advances any legal principles to support a conclusion that Atinum should be
bound by Brouillette’s signing of the tolling agreement.6
Defendant Atinum argues that it did not enter the agreement, rendering it inapplicable to
the statute of limitations with respect to Plaintiff’s claims against Atinum. Defs.’ Reply 5. The
plain language of the tolling agreement supports this argument: “all applicable statutes of
limitations as to any and all claims that Ms. Fontenot may have against John Brouillette . . . shall
be tolled.” Tolling Agreement 1 (emphasis added). In reply, Plaintiff argues only that Atinum
intentionally ignored the tolling agreement or was unaware of it through its own negligence. Pl.’s
Surreply 5-6. This reply does not meet Plaintiff’s burden of identifying specific evidence of a
genuine issue of material fact but only offers Plaintiff’s opinion of an immaterial issue.
Regardless of whether Atinum knew or should have known of the tolling agreement between
Fontenot and Brouillette, the fact is that it did not enter—and therefore was not bound by—that
agreement.
2.
Against Brouillette
Brouillette, however, did sign the tolling agreement, which became effective February 4,
2010, and did not terminate until April 1, 2010. By filing suit in March, Plaintiff preserved her
claims against Brouillette for assault and battery that allegedly occurred after February 4, 2008.
6
Although Atinum does not make this argument, the Court notes that Plaintiff also fails to provide any support for
attributing Brouillette’s alleged assaults to Atinum, stating that both February 2008 incidents occurred in
Brouillette’s apartment. Pl.’s Am. Resp. 28.
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D.
Intentional Infliction of Emotional Distress Claim Against Brouillette
Defendant Brouillette argues, first, that an IIED claim that accrued prior to March 31,
2008, is barred by the Texas statute of limitations, and second, that a claim that accrued on or
after that date is barred by the availability of other remedies. Defs.’ Mot. 8-9. Plaintiff does not
respond to Brouillette’s first argument and instead responds only to the second, identifying
evidence of conduct that occurred within the statute of limitations. Pl.’s Am. Resp. 53. Because
there is a genuine issue whether other causes of action are in fact available to address these
allegedly tortious acts, this showing is sufficient to survive summary judgment for claims
accruing on or after March 31, 2008.
“In Texas, IIED claims are intended as a ‘gap-filler,’ an extra tort that is actionable only
when a just remedy is precluded due to legal inadequacies in other underlying torts.” Noack v.
YMCA of Greater Houston Area, 418 F. App’x 347, 353 (5th Cir. 2011) (citing Creditwatch, Inc.
v. Jackson, 157 S.W.3d 814, 816 (Tex. 2005)), cert. denied, 132 S. Ct. 425 (U.S. 2011). The
issue presented by Brouillette’s argument is whether the acts alleged by Plaintiff could be
remedied by other causes of action, such as those under Title VII, or can stand alone as a gapfiller. Some of the alleged acts are not directly related to Plaintiff’s workplace claims, such as
Brouillette’s threatening her and her mother’s physical safety and maintaining surveillance of her
and her family, Pl.’s Am. Resp. 53, but most of the acts are alleged under Plaintiff’s Title VII
sexual harassment claim, for example, Brouillette’s “barrage of lewd texts, voice mail messages
and comments, and threats to her job,” which continued on an almost daily basis until Brouillette
terminated their working relationship in February 2009, id. at 20.
According to Defendants’ own argument, however, the latter allegations cannot be
excluded from consideration as a matter of law. If, as Defendants maintain, Plaintiff was not a
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Title VII employee, then Plaintiff’s IIED claim cannot be barred by the availability of a Title VII
remedy. In other words, because there is a genuine issue of material fact as to whether the Title
VII claim is available, then there must also be such an issue as to whether the IIED claim is
defeated by such availability. Therefore, it is impossible for the Court to conclude as a matter of
law that Plaintiff’s IIED cause of action is barred—at least with respect to a cause of action
accruing on or after March 31, 2008.
IV.
Conclusion
For the foregoing reasons, it is hereby
ORDERED that Defendants’ motion for summary judgment is GRANTED IN PART
and DENIED IN PART. The Court finds that Plaintiff has marshaled sufficient evidence to
create genuine issues of material fact regarding her Title VII claims, FLSA claims, IIED claims
accruing on or after March 31, 2008, and assault and battery claims against Defendant Brouillette
only. The Court finds that Defendant Brouillette is entitled to summary judgment with respect to
IIED claims accruing prior to March 31, 2008, and that Defendant Atinum is entitled to summary
judgment with respect to Plaintiff’s assault and battery claims.
SIGNED at Houston, Texas, this 15th day of January, 2013.
___________________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE
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