Kellogg v. Fannie's Inc.

467 F.Supp.3d 1296

Cristina KELLOGG, Plaintiff,

v.FANNIE'S INC. d/b/a Fannie's Cabaret and William H. "Brian" Parks, Defendants.

CIVIL ACTION FILE NO. 1:18-CV-1929-MHC

United States District Court, N.D. Georgia, Atlanta Division.

Signed June 16, 2020

Charles Ronald Bridgers, Kevin D. Fitzpatrick, Jr., DeLong Caldwell Bridgers Fitzpatrick & Benjamin, LLC, Atlanta, GA, for Plaintiff.

Jonathan Akins, John Anthony Christy, Schreeder Wheeler & Flint, LLP, Atlanta, GA, for Defendants.

ORDER

MARK H. COHEN, United States District Judge

Plaintiff Cristina Kellogg ("Kellogg") brings this action against Defendants Fannie's, Inc. d/b/a Fannie's Cabaret ("Fannie's") and William H. "Brian" Parks ("Parks") (collectively, "Defendants") based on allegations that Defendants violated the Fair Labor Standards Act of 1938, as amended ("FLSA"), 29 U.S.C. § 201 et seq. Compl. [Doc. 1]. Kellogg alleges that, from April 2015 through December 2017, she was employed at Fannie's, an enterprise engaged in commerce under the FLSA, and that Defendants failed to compensate her at an hourly rate above or equal to the minimum wage established by the FLSA. See id. This case comes before the Court on Parks's Motion for Summary Judgment [Doc. 78] and Kellogg's Motion for Partial Summary Judgment [Doc. 80].

I. BACKGROUND¹

A. Factual Background

Fannie's operates a nightclub called Fannie's Cabaret (the "Club"), "which features entertainment in the form of nude female dancing." Kellogg's SMF ¶ 1; Fannie's SMF Resp. ¶ 1. Fannie's website states as follows: "Atlanta's Premier Adult Entertainment is exclusively found at Fannie's Cabaret. Staffing over 150 entertainers with a carefully balanced mix of the most beautiful women in Atlanta. The most beautiful fully nude dancers in the Southeast work at Fannie's Cabaret." Rule 30(b)(6) Dep. of Andrew Cargill taken on Feb. 28, 2019 ("Cargill 30(b)(6) Dep.") [Doc. 76-1] at 23, 25 & Ex. 2 [Doc. 76-3]. Between 2015 and 2017, Fannie's admittedly was "an enterprise engaged in commerce or in the production of goods for commerce" under the FLSA. Defs.’ Resps. to Pls.’ First Continuing Reqs. for Admission [Doc. 76-40] ¶¶ 8-10. During 2015, 2016, and 2017, Fannie's sold alcohol, paid rent for its facility, maintained two stages, maintained four "VIP Rooms," and played music in the Club. Kellogg's SMF ¶¶ 3-10; Fannie's SMF Resp. ¶¶ 3-10.

Fannie's employed Andrew Cargill ("Cargill") as its General Manager and Daniel Bass ("Bass"), Brian Gann ("Gann"), and Kenneth Graham ("Graham") as managers (collectively, the "Managers") during the time period Kellogg performed at the Club. Kellogg's SMF ¶¶ 12, 14; Fannie's SMF Resp. ¶¶ 12, 14. The Managers possessed the authority to terminate a dancer's relationship with the Club. Kellogg's SMF ¶ 15; Fannie's SMF Resp. ¶ 15. During the time period Kellogg performed at the Club, Fannie's also employed a House Mom, Brenda Dulaney ("Dulaney"), who was known as "Spirit." Kellogg's SMF ¶¶ 17-18; Fannie's SMF Resp. ¶¶ 17-18. Sheyda Hovanloo was a fellow dancer at the Club, who worked at Fannie's from approximately August 2014 and until May 2016. Dep. of Sheyda Hovanloo taken on Mar. 19, 2019 ("Hovanloo Dep.") [Doc. 79] at 21.

The parties dispute the length of time Kellogg performed at Fannie's. Kellogg claims that she was a dancer at the Club from June 2014 until July 2018. Decl. of Cristina Kellogg ("Kellogg Decl.") [Doc. 80-2] ¶ 3. Cargill contends that Kellogg worked at the Club during various weeks during calendar year 2017 and never performed in 2015, 2016, or 2018. Decl. of Andrew Cargill ("Cargill Decl.") [Doc. 84-3] ¶¶ 25, 26. Cargill also testified that dancers execute a "Professional Performer Packet" and decide whether to be classified by Fannie's as an employee or as an independent contractor. Cargill 30(b)(6) Dep. at 107. The record contains a series of documents executed by Kellogg in January and March 2017, in which she opted to work as a "Contracted Performer" rather than as an "Employee." See Exs. 22-25 to Cargill 30(b)(6) Dep. [Docs. 76-23 through 76-26]. The agreement states, in part, that as a "Contracted Professional Performer," Kellogg can set her own hours and work schedule, will not be required to meet any dance or VIP Room quotas, can decide whether or not to tip any workers, and will not be required to follow any rules or policies other than "those set by governing authorities." Ex. 24 to Cargill 30(b)(6) Dep. [Doc. 76-25 at 3]. The agreement signed by Kellogg also states that the Club sets a "service fee" for a Table Dance of $10.00 and for an Hourly Room Performance of $300.00; the performer will collect the service fees for the Club and the Club will then "[t]ake possession of its ‘Service Fees’ " the Club will retain a set amount of its service fees for staff bonuses or expenses; the performer's payment will come from the service fees; and compensation collected by the performer through the service fees would be in lieu of receiving a minimum wage as an employee. Id. at 4-5. There is a dispute as to what happened in practice, which will be discussed in more detail below.

Parks was a majority owner of Fannie's until 2004 when he "sold all but 25% of the business and resigned from his operational role at [Fannie's]." Parks's SMF ¶ 2.² After this point, he had no management or supervision role at Fannie's, made no employment decisions, made no decisions about how much workers should be paid, had no authority to manage workers’ schedules, had no responsibility in preparing or keeping payroll records, and had no role in setting workers’ schedules or wages. Id. ¶¶ 3-6.

Parks did not know Kellogg, recall hiring her, or take any role in supervising her. Id. ¶ 7. After his retirement in 2013, Parks lived in Florida full-time and only visited Fannie's infrequently, stopping in to say hello to the current management. Id. ¶¶ 8-9. Parks has never been known as "Brian." Id. ¶ 10.

B. Procedural Background

Kellogg filed her Complaint on May 2, 2018, alleging one count of failure to pay minimum wages under the FLSA. See Compl. ¶¶ 76-83. After this Court's denial of Fannie's motion to dismiss the Complaint for failure to state a claim, Fannie's answered and asserted counterclaims of money had and received and unjust enrichment.³ July 31, 2018, Order [Doc. 14]; Answer, Affirmative Defenses, and Countercls. of Fannie's Inc. d/b/a Fannie's Cabaret ("Answer and Countercls.") [Doc. 15 at 16-25]. As to each counterclaim, Fannie's stated that if Kellogg were to prevail on any of her claims, and "no enforceable agreement or contract between Fannie's and Cristina Kellogg is found to exist or in fact exists," then Fannie's was entitled to equitable relief. Id. ¶¶ 20, 27.

II. LEGAL STANDARD

Summary judgment is appropriate when "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). A party seeking summary judgment has the burden of informing the district court of the basis for its motion and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions," and cannot be made by the district court in considering whether to grant summary judgment.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; see also Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir. 1999).

If a movant meets its burden, the party opposing summary judgment must present evidence demonstrating a genuine issue of material fact or that the movant is not entitled to judgment as a matter of law. Celotex, 477 U.S. at 324, 106 S.Ct. 2548. In determining whether a genuine issue of material fact exists, the evidence is viewed in the light most favorable to the party opposing summary judgment, "and all justifiable inferences are to be drawn" in favor of that opposing party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505 ; see also Herzog v. Castle Rock Entm't, 193 F.3d 1241, 1246 (11th Cir. 1999). A fact is "material" only if it can affect the outcome of the lawsuit under the governing legal principles. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. A factual dispute is "genuine" if the evidence would permit a reasonable jury to return a verdict for the nonmoving party. Id.

"If the record presents factual issues, the court must not decide them; it must deny the motion and proceed to trial." Herzog, 193 F.3d at 1246. But summary judgment for the moving party is proper "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita, 475 U.S. at 587, 106 S.Ct. 1348 (citation omitted).

III. DISCUSSION

A. Parks's Motion for Summary Judgment

Parks contends that he is entitled to summary judgment because there is no genuine dispute of material fact that he was not Kellogg's "employer," an essential element of Kellogg's FLSA claim. Mem. of Law in Supp. of Def. William H. Parks’ Mot. for Summ. J. ("Parks's Mem.") [Doc. 78-2] at 5-6. Specifically, Parks argues that he was not an employer because he was a minority owner of Fannie's, was not involved in the day-to-day operations of the club, and did not have any direct supervision over Kellogg, the decision to hire her, or the schedule that she worked. Id. at 6. Kellogg did not file a response to Parks's Motion for Summary Judgment, which indicates that she does not oppose it. LR 7.1B, NDGa ("Failure to file a response shall indicate that there is no opposition to the motion."). Nevertheless, the Court will review the merits of the motion.⁴

The FLSA "premises liability on an employer-employee relationship."

Patel v. Wargo, 803 F.2d 632, 635 (11th Cir. 1986). Whether a person is an "employer" turns on whether they "act[ ] directly or indirectly in...