United States District Court, E.D. Louisiana
CARRIE BIGGIO, ET AL.
H2O HAIR INC., ET AL.
ORDER AND REASONS
the Court is Defendants' “Motion for Partial
Summary Judgment Seeking Dismissal of Plaintiffs'
Retaliation Claims.” Rec. Doc. 148. Plaintiffs filed a
response. Rec. Doc. 159.Defendants then requested (Rec. Doc.
162), and were granted (Rec. Doc. 168), leave to file a reply
memorandum (Rec. Doc. 170). For the reasons discussed below,
IT IS ORDERED that Defendants' motion for partial summary
judgment (Rec. Doc. 148) is GRANTED.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Court has previously discussed, on November 18, 2015,
Plaintiffs Carrie Biggio and Chelsea Luminais (collectively
“Plaintiffs”), filed the present action under the
Fair Labor Standards Act (“FLSA”) against their
former employer, asserting claims individually and on behalf
of all those similarly situated. Rec. Doc. 1 at 1-2.
Plaintiffs worked full-time at Defendant H2O Hair, Inc.
(“H2O”) under numerous job titles, including, but
not limited to: apprentice, stylist, masseuse, blow-dry bar
attendant, receptionist, assistant, and housekeeper.
Id. at 2. Named as Defendants in the action are H2O,
Michael John Gaspard (“Mr. Gaspard”),
Holli M. Gaspard (“Ms. Gaspard”),  and XYZ Insurance
Company. Id.; see also Rec. Doc.
45 at ¶¶ 5-7. Soon after filing the complaint,
Plaintiffs filed a motion to conditionally certify the class.
Rec. Doc. 27. On March 14, 2016, the motion was granted in
part to allow conditional certification. Rec. Doc. 44 at 15.
The class now consists of thirteen former employees. Rec.
Doc. 146-1 at 1.
asserted a number of claims against Defendants, including
retaliation. Rec. Doc. 45 at 7, ¶¶ 26-29.
Specifically, Plaintiffs alleged that their “pleas for
overtime pay and their requests that the Gaspards and H2O
comply with applicable law constituted protected
conduct.” Id. at ¶ 27. Defendants
purportedly retaliated by restricting Plaintiffs' access
to clients, constructively terminating employment, reducing
wages without warning or justification, imposing duties
outside the scope of Plaintiffs' employment, threatening
termination, and demanding payment if an employee quit.
Id. at ¶ 28.
THE PARTIES' CONTENTIONS
argue that Plaintiffs cannot show that they engaged in a
protected activity under 29 U.S.C. § 215(a)(3) or that
Defendants retaliated against them for any such activity.
Rec. Doc. 148-2 at 3. They note that they submitted an
interrogatory to each Plaintiff seeking disclosure of the
basis of Plaintiffs' retaliation claims. Id. at
4. When Plaintiffs failed to respond, Defendants moved to
compel and Magistrate Judge Wilkinson granted the motion,
ordering Plaintiffs to answer the interrogatory by May 23,
2017. Rec. Docs. 134, 144. On May 30, 2017, Defendants filed a
motion to hold Plaintiffs in contempt and for sanctions. Rec.
Doc. 171. They argued that Plaintiffs Alvarez, Brown, and
Kennedy failed to respond to the interrogatory and that the
remaining Plaintiffs provided answers that raised objections,
were not verified under oath, and were not full and complete.
Id. at 2. The motion was referred to Magistrate
Judge Wilkinson and set for submission on June 14, 2017.
respond to the instant motion by arguing that the affidavits
relied upon by Defendants are directly contradicted by
documentary evidence, deposition testimony, and Plaintiff
declarations. Rec. Doc. 159 at 1.
LAW AND ANALYSIS
Federal Rule of Civil Procedure 56, summary judgment is
appropriate only 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 judgment as a matter of law.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting
Fed.R.Civ.P. 56(c)). See also TIG Ins. Co. v. Sedgwick
James of Wash., 276 F.3d 754, 759 (5th Cir. 2002). A
genuine issue exists if the evidence would allow a reasonable
jury to return a verdict for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). The movant must point to “portions of
‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, ' which it believes demonstrate the
absence of a genuine issue of material fact.”
Celotex, 477 U.S. at 323. If and when the movant
carries this burden, the non-movant must then go beyond the
pleadings and present other evidence to establish a genuine
issue. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986).
“where 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.” Lindsey v. Sears
Roebuck & Co., 16 F.3d 616, 618 (5th Cir. 1994).
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).
FLSA makes it unlawful for any person “to discharge or
in any other manner discriminate against any employee because
such employee has filed any complaint or instituted or caused
to be instituted any proceeding under or related to this
chapter . . . .” 29 U.S.C. § 215(a)(3). “An
employee asserting retaliation under the FLSA may proceed in
one of two ways: by direct or circumstantial evidence.”
White v. Denton Cty., 655 F. App'x 1021, 1024
(5th Cir. 2016) (quoting Monroe Firefighters Ass'n v.
City of Monroe, No. 06-1092, 2009 WL 772829, at *3 (W.D.
La. Mar. 17, 2009)). “If a plaintiff does not have
direct evidence of retaliation, then his claim is subject to
the traditional burden-shifting framework of McDonnell
Douglas Corp. v. Green.” Id. (citing
Kanida v. Gulf Coast Med. Pers. LP, 363 F.3d 568,
577 (5th Cir. 2004)); see also McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). “To establish a
prima facie claim of retaliation under the
McDonnell Douglas burden-shifting framework, a
plaintiff must demonstrate (1) participation in a protected
activity; (2) an adverse employment action; and (3) a causal
link between the activity and the adverse action.”
White, 655 F. App'x at 1024 (citing Hagan v.
Echostar Satellite, L.L.C., 529 F.3d 617, 624 (5th Cir.
2008)); see also Starnes v. Wallace, 849 F.3d 627,
631-32 (5th Cir. 2017). As to the first element, a plaintiff
engages in a protected activity if he or she makes a
“complaint.” Starnes, 849 F.3d at 632
(quoting Hagan, 529 F.3d at 626). To constitute a
“complaint, ” the employee's communication
must give the employer fair notice that he or she is
“making a complaint that could subject the employer to
a later claim of retaliation” and the “complaint
must be sufficiently clear and detailed for a reasonable
employer to understand it, in light of both content and
context, as an assertion of rights protected by the [FLSA]
and a call for their protection.” Id. (quoting
Lasater v. Tex. A & M Univ.-Commerce, 495 F.
App'x 458, 461 (5th Cir. 2012) (quoting Kasten v.
Saint-Gobain Performance Plastics Corp., 563 U.S. 1, 14
plaintiff makes a prima facie claim of retaliation,
“the defendant must then articulate a legitimate,
nondiscriminatory reason for its decision. The burden then
shifts to the plaintiff to demonstrate that the proffered
reason is a pretext for discrimination.”
White, 655 F. App'x at 1024 (citing
Hagan, 529 F.3d at 624). “A plaintiff may
establish pretext either through evidence of disparate
treatment or by showing that the employer's proffered
explanation is false or unworthy of credence . . . [meaning
that] it is not the real reason for the adverse employment
action.” Id. at 1024-25 (internal quotation
marks omitted) (quoting Laxton v. Gap Inc., 333 F.3d
572, 578 (5th Cir. 2003)).
Defendants argue that no Plaintiff “made a complaint
concerning any violations of [the] FLSA by H2O” and
that no Plaintiff was subject to an adverse employment action
because of any such complaint. Rec. Doc. 148-2 at 4. To
support these assertions, they provide affidavits by
H2O's office ...