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Case 4:12-cv-00685-SWW Document 42 Filed 11/14/13 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION NICOLE COLLINS, ET AL., individually and on behalf of others similarly situated Plaintiffs V. BARNEYS BARN, INC., individually and d/b/a PEACHES GENTLEMANS CLUB, ET AL. Defendants ORDER Plaintiffs are former employees of Barneys Barn, Inc. (Barneys), doing business as Peaches Gentlemans Club (Peaches), and they bring this action against Barneys and individual managers of Peaches pursuant to the Fair Labor Standards Act (FLSA), 29 U.S.C. 201 et seq. Before the Court is a motion for partial summary judgment (ECF Nos. 30, 31, 32) by separate plaintiffs Nicole Collins, Rachel Hillman, Casi Hudson, and Stacy Jackson. The time for responding has passed, and Defendants have not filed a response. After careful consideration, and for reasons that follow, separate plaintiffs motion for partial summary judgment is granted. I. Summary judgment is appropriate when the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The summary judgment inquiry depends on the substantive, evidentiary standard of proof that would apply at the trial on the merits. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 * * * * * * * * *

NO: 4:12CV00685 SWW

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S.Ct. 2505 (1986). When, as here, the party bearing the burden of proof at trial moves for summary judgment, the moving party must support its motion with evidence that would entitle it to a directed verdict if not controverted at trial. See id.; see also Firemen's Fund Ins. Co. v. Thien, 8 F.3d 1307, 1310 (8th Cir. 1993)(citing Celotex Corp. v. Catrett, 477 U .S. 317, 331, 106 S. Ct. at 2556 (1986)(Brennan, J., dissenting)). If the moving party fails to meet this initial burden, the Court must deny summary judgment, regardless of the non-moving partys response. Once the moving party has properly supported its motion for summary judgment, the non-moving party must do more than simply show there is some metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The non-moving party may not rest on mere allegations or denials but must come forward with specific facts showing a genuine issue for trial. Id. at 587 (quoting Fed. R. Civ. P. 56(e)). [A] genuine issue of material fact exists if: (1) there is a dispute of fact; (2) the disputed fact is material to the outcome of the case; and (3) the dispute is genuine, that is, a reasonable jury could return a verdict for either party. RSBI Aerospace, Inc. v. Affiliated FM Ins. Co., 49 F.3d 399, 401 (8th Cir. 1995). II. The following facts are undisputed.1 Separate plaintiffs Nicole Collins, Rachel Hillman, Casi Hudson, and Stacy Jackson worked as exotic dancers at Peaches, a private club in

Local Rule 56.1 provides that a party moving for summary judgment must submit a statement of the material facts as to which it contends there is no genuine issue to be tried, and the non-moving party must file a responsive statement of the material facts as to which it contends a genuine issue exists to be tried. All material facts set forth in the statement filed by the moving party . . . shall be deemed admitted unless controverted by the statement filed by the non-moving party . . . . Local Rule 56.1(c). 2

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Jacksonville, Arkansas.2 Separate plaintiffs earned money solely from customer tips and fees they collected for performing lap dances, and they claim that defendants failed to pay them FLSA-mandated compensation for tipped employees.3 Separate plaintiffs further charge that Defendants violated the FLSA by requiring them to pay a portion of their tips to the house and other employees who did not receive tips. Defendants classified separate plaintiffs as independent contractors and charged them a rental fee for each night they worked. Separate plaintiffs paid $25 per night when they worked Sunday through Thursday, and they paid $50 on Fridays and Saturdays. During the relevant time period, Defendants required that all dancers abide by the following rules and procedures: < Dancers were required to formulate weekly work schedules with the club manager. Defendants controlled Peaches hours of operation, and in order to work on Friday or Saturday, dancers were required to work at least two days Thursday through Sunday. Defendants fined dancers who failed to adhere to a work schedule. Defendants set the price that dancers charged for lap dances and required dancers to pay $5 to the house for each lap dance performed. Defendants required dancers to perform on stage according to a rotation schedule established by the club manager or disc jockey. Dancers who failed to appear on stage promptly when called incurred a $10 late-to-stage fine, and dancers who failed to appear on stage when called incurred a $30 fine.

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Separate plaintiffs Chris Cruthis, Marcus Stevens, and Erin Townsend also worked at Peaches but do not join in the motion for partial summary judgment. Cruthis worked as a bouncer; Stevens worked as a disc jockey and assistant manager, and Townsend worked as a lead bartender. The FLSA generally requires employers to pay employees a minimum wage, currently set at $7.25 per hour. See 29 U.S.C. 206. However, an exception exists for a tipped employee, defined as one "engaged in an occupation in which he customarily and regularly receive more than $30 a month in tips." 29 U.S.C. 203(t). Tipped employees must receive at least the minimum wage, but employers are permitted to pay a direct wage of $2.13 per hour and take a "tip credit" to meet the $7.25 per hour minimum wage requirement. See 29 U.S.C. 203(m). 3
3

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Defendants dictated the articles of clothing that dancers removed. Defendants did not permit dancers to select the music played during their performances. When dancers were not performing on stage, Defendants ordered them to get to work and sell lap dances. Defendants fined dancers for refusing to perform a lap dance or for ending a lap dance prematurely. Defendants prohibited dancers from using cell phones and chewing gum at work. Defendants dictated that dancers wear shoes with at least a four-inch heel. Defendants handled all advertising for Peaches. III. The FLSAs overtime provisions apply only to employees, and defendants deny that

plaintiffs are or were employees of Barneys Barn, Inc. Answer, 4. With their motion for partial summary judgment, the separate plaintiffs ask the Court to find that no material issues of fact exist as to their status as employees during the period that defendants treated them as independent contractors. The FLSA defines employee to include an individual employed by an employer. 29 U.S.C. 203(e)(1). An employer under the Act is any person acting directly or indirectly in the interest of an employer in relation to an employee[,] 29 U.S.C. 203(d), and employ means to suffer or permit to work. 29 U.S.C. 203(g). When the definition of employee in a federal statute is completely circular and explains nothing, which is the case here, a court must presume that Congress intended to describe the conventional master-servant relationship as understood by common-law agency doctrine. Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323, 112 S.Ct. 1344 (1992)(quoting Community for Creative NonViolence v. Reid, 490 4

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U.S. 730, 73940, 109 S.Ct. 2166 (1989)). The Supreme Court has summarized the commonlaw test as follows: In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party's right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.

Darden, 503 U.S. at 322-323, 112 S.Ct. at 1348 (quoting Community for Creative Non-Violence v. Reid, 490 U.S. 730, 751-52, 109 S.Ct. 2166, 2178-79(1989)(citing Restatement (Second) of Agency 220(2) (1958)). The totality of the circumstances, not any one factor, determines whether a worker is an employee or an independent contractor. The undisputed evidence demonstrates that defendants exerted substantial control over most aspects of separate plaintiffs work activities. Separate plaintiffs had no control over the amount charged for lap dances, they had only limited control over their weekly schedules, and defendants dictated the duration and scheduling of their dance performances. Other pertinent factors indicate that separate plaintiffs were employees, not independent contractors. Separate plaintiffs work was an integral part of defendants regular business of providing adult entertainment, and the record is void of evidence that separate plaintiffs work activities amounted to an independent enterprise. Instead, the evidence indicates that separate plaintiffs monetary opportunities depended on defendants activities. Defendants provided the advertisement, facilities, music, disc jockeys, and security necessary for separate plaintiffs

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performances, and it does not appear that separate plaintiffs work required special skill or training. In sum, the Court finds that separate plaintiffs have presented undisputed evidence sufficient to establish that they worked as employees, not independent contractors. There being no material issues of fact regarding separate plaintiffs status as employees within the meaning of the FLSA, the Court finds that Plaintiffs motion for partial summary judgment (ECF No. 30) should be and it is hereby GRANTED. IT IS SO ORDERED THIS 14TH DAY OF NOVEMBER, 2013.

/s/Susan Webber Wright UNITED STATES DISTRICT JUDGE

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