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Berry v. Great American Dream Inc.

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

October 14, 2014



GERRILYN G. BRILL, Magistrate Judge.

Amanda Berry and A'Cire Newby ("Plaintiffs") worked as entertainers (dancers) at Pin Ups, an adult entertainment nightclub. Plaintiffs seek damages for alleged violations of the minimum wage and overtime wage requirements of the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. ("FLSA"). Plaintiff Berry also asserts a cause of action for pregnancy discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. ("Title VII") and the Pregnancy Discrimination Act of 1978, 42 U.S.C. § 2000e(k) ("PDA").

This matter is before the Court on Plaintiffs' Motion for Partial Summary Judgment [Doc. 41]. For the reasons stated below, I recommend that Plaintiffs' motion be granted.


Summary judgment is proper when no genuine issues of material fact are present and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The movant carries its burden by showing the court that there is "an absence of evidence to support the nonmoving party's case." Celotex v. Catrett, 477 U.S. 317, 325 (1986).

"Only when that burden has been met does the burden shift to the nonmoving party to demonstrate that there is indeed a material issue of fact that precludes summary judgment." Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The nonmovant is then required "to go beyond the pleadings" and to present competent evidence in the form of affidavits, answers to interrogatories, depositions, admissions and the like, designating "specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324; Fed.R.Civ.P. 56(c). "Mere conclusions and unsupported factual allegations are legally insufficient to create a dispute to defeat summary judgment." Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th Cir. 1989).

Federal Rule 56 mandates the entry of summary judgment against a party who fails to make a showing sufficient to establish the existence of every element essential to that party's case on which he will bear the burden of proof at trial. Celotex, 477 U.S. at 322. In such a situation, there can be no genuine issue as to any material fact, as a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial. Id. at 322-23.

In deciding a motion for summary judgment, the Court must view all evidence and draw any factual inferences in the light most favorable to the nonmoving party. Samples v. City of Atlanta, 846 F.2d 1328, 1330 (11th Cir. 1988). But "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The requirement to avoid summary judgment is that there be no " genuine issue of material fact." Id. at 248 (italics in original). Resolving all doubts in favor of the nonmoving party, the Court must determine "whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented." Id. at 252.

A party may move for summary judgment on a part of a claim or defense. Fed.R.Civ.P. 56(a). As the Eleventh Circuit has stated:

A[n]... order granting partial summary judgment from which no immediate appeal lies is merged into the final judgment and reviewable on appeal from that final judgment.... An order granting [summary] judgment on certain issues is a judgment on those issues. It forecloses further dispute on those issues at the trial stage. An order denying a motion for partial summary judgment, on the other hand, is merely a judge's determination that genuine issues of material fact exist. It is not a judgment, and does not foreclose trial on the issues on which summary judgment was sought.

Lind v. United Parcel Serv., Inc., 254 F.3d 1281, 1284 n.4 (11th Cir. 2001) (quoting Glaros v. H.H. Robertson Co., 797 F.2d 1564, 1573 (Fed. Cir. 1986)) (italics omitted).


Plaintiffs seek partial summary judgment on two issues. First, Plaintiffs assert that they are entitled to summary judgment on the issue of whether Plaintiffs are independent contractors or employees under the FLSA. Plaintiffs argue that this Court in a related case involving current and former adult entertainers at Pin Ups (the same defendant as this case) has already ruled that the plaintiff entertainers were "employees" under the FLSA, rather than independent contractors as Pin Ups claims. See Stevenson v. The Great American Dream, Inc. d/b/a Pin Ups Nightclub, No. 1:12-cv-3359-TWT, 2013 WL 6880921 (N.D.Ga. Dec. 31, 2013). As a result, Plaintiffs argue that Pin Ups is collaterally estopped in this case from re-litigating the question of whether entertainers at Pin Ups are properly classified as independent contractors or employees under the FLSA.

Plaintiffs also contend that they are entitled to summary judgment on Pin Ups' "good faith" affirmative defense under 29 U.S.C. § 259. 29 U.S.C. § 259 provides, in pertinent part, that

[N]o employer shall be subject to any liability or punishment for or on account of the failure of the employer to pay minimum wages or overtime compensation under the [FLSA]... if he pleads and proves that the act or omission complained of was in good faith in conformity with and in reliance on any written administrative regulation, order, ruling, approval, or interpretation, of the agency of the United States specified in subsection (b) of this section, or any administrative practice or enforcement policy of such agency with respect to the class of employers to which he belonged.

29 U.S.C. § 259(a). This good faith defense is an objective test that bars actions for violations of the FLSA if the employer establishes "that the act or omission complained of was (1) taken in good faith and (2) was in conformity with and (3) in reliance on a written administrative interpretation by a designated agency." Cole v. Farm Fresh Poultry, Inc., 824 F.2d 923, 926 (11th Cir. 1987).

Pin Ups asserted in its answer that Plaintiffs' claims are barred under 29 U.S.C. § 259 because Pin Ups' actions were "taken in good faith, and in conformity with" a 1993 letter from a Department of Labor investigator. [See Doc. 41-8 at 1-2, letter dated December 27, 1993 from Mary Ziegler, Investigator, U.S. Department of Labor ("1993 letter")]. The 1993 letter listed a number of different ways that adult entertainment clubs may pay their employee dancers and satisfy their minimum and overtime wage obligations to the dancers in compliance with the FLSA. The letter also ...

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