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Biggio v. H2O Hair Inc.

United States District Court, E.D. Louisiana

June 8, 2017


         SECTION "B"(2)


         Before 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.[1]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.


         As this 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”), [2] Holli M. Gaspard (“Ms. Gaspard”), [3] and XYZ Insurance Company.[4] 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.[5]

         Plaintiffs 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.


         Defendants 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.[6] 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. Id.[7]

         Plaintiffs 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.[8]


         Under 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).

         However, “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).

         The 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 (2011))).

         If a 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)).

         Here, 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 ...

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