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Marshall v. Mwf Construction LLC

United States District Court, E.D. Arkansas, Western Division

March 29, 2019

TOMMY MARSHALL PLAINTIFF
v.
MWF CONSTRUCTION, LLC, and MATT FOSTER DEFENDANTS

          ORDER

         Tommy Marshall's motion for partial summary judgment [Doc. No. 10] is granted.

         I. BACKGROUND

         Marshall 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:

         Defendants 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 id.

         Marshall 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.

         Marshall's 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 17:18-18:6.

         Marshall now moves for partial summary judgment as to whether he was defendants' “employee” or “independent contractor.”

         II. LEGAL STANDARD

         Summary 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.

         “If 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).

         III. DISCUSSION

         For the 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).

         Six 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, 716 (1947)).

         A. Control ...


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