United States District Court, E.D. Arkansas, Western Division
Marshall's motion for partial summary judgment [Doc. No.
10] is granted.
filed this lawsuit for violations of the overtime wage
provisions of the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. § 201, et seq.,
and Arkansas Minimum Wage Act (“AMWA”), Ark. Code
Ann. § 11-4-201, et seq. The undisputed facts
are as follows:
operate a construction company. Pl. F. ¶¶ 1-2, Doc.
No. 11. Marshall was the “key guy” at one of
defendants' work sites, which means that he was
responsible for unlocking the site and keeping track of
workers. Id. ¶¶ 7-8. At the site, he
unlocked doors, ensured that subcontractors “were
accounted for, ” and recorded the comings and goings of
various individuals so that defendants could audit payment
requests. Id. ¶¶ 12-14. Marshall was not
in the business of being a “key guy.”
Id. ¶¶ 20-21. Rather, he merely performed
this job for defendants on one particular site. See
worked for defendants from November 2017 through March 2018.
Id. ¶ 5. Although the parties agree that
Marshall's position did not have a specific end date when
he was hired, they dispute whether Marshall was hired for an
“indefinite” period. Id. ¶¶ 6,
34; Def. Resp. Pl. F. ¶¶ 6, 34, Doc. No. 17.
duties were fairly simple and the only “tools” he
provided were paper and pens. See Pl. F.
¶¶ 9-11, 15-17. Further, while Marshall was
considered important to defendants' business, he was not
replaced when he left-others simply took over his
responsibilities. Pl. F. ¶ 25; Def. Resp. Br. Ex. 2 at
now moves for partial summary judgment as to whether he was
defendants' “employee” or “independent
judgment is appropriate when there is no genuine dispute as
to any material fact, and the moving party is entitled to
judgment as a matter of law. See Fed. R. Civ. P.
56(a); Anderson v. Liberty Lobby Inc., 477 U.S. 242,
249-50 (1986). Once the moving party demonstrates that there
is no genuine dispute of material fact, the non-moving party
may not rest upon mere allegations or denials in his
pleadings. Holden v. Hirner, 663 F.3d 336, 340 (8th
Cir. 2011). Instead, the non-moving party must produce
admissible evidence demonstrating a genuine factual dispute
requiring a trial. Id.
a party fails to properly support an assertion of fact or
fails to properly address another party's assertion of
fact as required by Rule 56(c), the court may consider the
fact undisputed for purposes of the motion.”
Fed.R.Civ.P. 56(e)(2). All reasonable inferences must be
drawn in a light most favorable to the non-moving party,
Holland v. Sam's Club, 487 F.3d 641, 643 (8th
Cir. 2007), but a plaintiff's own self-serving,
conclusory allegations in an affidavit or deposition,
standing alone, are insufficient to defeat summary judgment.
Haas v. Kelly Services, 409 F.3d 1030, 1034 (8th
Cir. 2005). Finally, the evidence is not weighed, and no
credibility determinations are made. Jenkins v.
Winter, 540 F.3d 742, 750 (8th Cir. 2008).
FLSA's wage and overtime provisions to apply, Marshall
must establish that he was defendants' employee.
Krupicki v. Eagle One, Inc., No. 4:12-CV-00150 KGB,
2014 WL 12710353, at *3 (E.D. Ark. April 3, 2014). Whether
Marshall was an employee or an independent contractor
“depends on the ‘economic reality' of his
relationship with defendants.” Id. (citing
Goldberg v. Whitaker House Coop., Inc., 366 U.S. 28,
33 (1961)). This is a question of law, Roslov v. DirecTV
Inc., 218 F.Supp.3d 965, 972 (E.D. Ark. 2016) (citations
omitted), and Marshall has the burden of proving that he was
an employee. See Reich v. ConAgra, Inc., 987 F.2d
1357, 1360 (8th Cir. 1993).
factors are often considered when making this determination:
(1) the extent of defendants' control over Marshall; (2)
Marshall's investment in his own business; (3) the extent
to whether Marshall's profit or loss was determined by
defendants; (4) the skill and initiative in performing the
job; (5) the permanency of the relationship; and (6) the
extent to which the work was integral to defendants'
operations. See Roslov, 218 F.Supp.3d at 972 (citing
Krupicki, 2014 WL 12710353, at *3). No. single
factor is dispositive, and the totality of the circumstances
must be considered. See Krupicki, 2014 WL 12710353,
at *3 (quoting United States v. Silk, 331 U.S. 704,