Markos George v. go Frac, Llc., et al

MOTION for Summary Judgment Plaintiffs Motion for Summary Judgment Regarding Individual Liability of Separate Defendant Frank Autry

W.D. Tex.July 21, 2016

Page 1 of 10 Markos George, et al. v. Go Frac, LLC, et. al U.S.D.C. (W.D. Tex.) Case No. 5:15-cv-943-XR Plaintiffs’ Motion for Summary Judgment Regarding Individual Liability of Separate Defendant Frank Autry and Incorporated Memorandum Brief in Support IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION MARKOS GEORGE, COURTNEY TAYLOR PLAINTIFFS and THOMAS NORRIS, Each Individually and on behalf of All Others Similarly Situated vs. No. 5:15-cv-943-XR GO FRAC, LLC; and RICHARD CRAWFORD, DEFENDANTS G.F. CRAWFORD and FRANK AUTRY, Each Individually and as Officers of Corporate Defendants PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT REGARDING INDIVIDUAL LIABILITY OF SEPARATE DEFENDANT FRANK AUTRY AND INCORPORATED MEMORANDUM BRIEF IN SUPPORT COME NOW Plaintiffs Markos George, et. al., (“Plaintiffs”), individually and on behalf of all others similarly situated, through undersigned counsel, and for their Motion for Summary Judgment Regarding Individual Liability of Separate Defendant Frank Autry and Incorporated Memorandum Brief in Support, do state and allege as follows: 1. Plaintiffs seek summary judgment in their favor with respect to the limited legal issue of the status of Separate Defendant Frank Autry (hereinafter “Defendant” or “Autry”) as an “employer” of Plaintiffs, opt-in plaintiffs, and all members of the FLSA col- lective classes (hereinafter referred to as “Class Members”), as the term is defined at 29 U.S.C. § 203(d). 2. The undisputed facts in this case demonstrate that Autry exercised control over Plaintiffs’ and class members’ daily activities, pay, working hours and other as- Case 5:15-cv-00943-XR Document 97 Filed 07/21/16 Page 1 of 10 Page 2 of 10 Markos George, et al. v. Go Frac, LLC, et. al U.S.D.C. (W.D. Tex.) Case No. 5:15-cv-943-XR Plaintiffs’ Motion for Summary Judgment Regarding Individual Liability of Separate Defendant Frank Autry and Incorporated Memorandum Brief in Support pects of their work circumstances. Under the FLSA, a corporate executive who exercis- es even indirect control over workers is personally liable for violations of the Act. 3. Autry’s control over Plaintiffs’ working conditions was direct and continu- ous throughout the period relevant to this lawsuit. 4. Moreover, Autry was a beneficiary of the fruits of Plaintiffs and class members’ labors. Defendants cannot raise a genuine issue of material fact from which a reasonable jury could determine that Autry was not an employer of class members. 5. Plaintiffs attach the following exhibits to this Motion: Exhibit 1 - Crawford Dep., ECF No. 97-1. 6. Because this motion is dispositive, and because Autry did not enter an appearance in this case Plaintiffs’ counsel did not confer with Defendants’ attorney pur- suant to Local Rule 7.1(d)(1). WHEREFORE, premises considered, Plaintiffs pray that the Court grant sum- mary judgment in Plaintiffs’ favor regarding the status of Separate Defendant Frank Au- try as their employer; for costs and reasonable attorney’s fees; and for all other good and proper relief to which they may be entitled. Case 5:15-cv-00943-XR Document 97 Filed 07/21/16 Page 2 of 10 Page 3 of 10 Markos George, et al. v. Go Frac, LLC, et. al U.S.D.C. (W.D. Tex.) Case No. 5:15-cv-943-XR Plaintiffs’ Motion for Summary Judgment Regarding Individual Liability of Separate Defendant Frank Autry and Incorporated Memorandum Brief in Support MEMORANDUM BRIEF IN SUPPORT I. INTRODUCTION AND PROCEDURAL HISTORY On October 30, 2015, Plaintiff filed his Original Complaint – Collective Action (ECF No. 2) against Defendants Go Frac, LLC (Go Frac), Richard Crawford, and G.F. Craw- ford. The Complaint alleged that Defendants failed to pay Plaintiff George and other hourly employees of Go Frac for all hours worked in excess of forty (40) per week. Id. at 44. Defendants filed their Answers (ECF No. 8 and 9) and Defendant Richard Craw- ford filed his Motion for Summary Judgment (ECF No. 10) which was denied without prejudice (ECF No. 17). On January 13, 2016, the Court conditionally certified a class of all hourly paid operators who were employed by Go Frac after October 30, 2012. (ECF No. 24). As a result of Plaintiffs sending their Court-approved notice, over 200 hundred operators have joined the case. On April 4, 2016, Plaintiffs filed their First Amended and Substituted Complaint (ECF No. 1), adding Frank Autry as an additional Defendant and adding class allegations on behalf of salaried Supervisors employed by Go Frac within the relevant time period.1 On June 1, 2016, Autry was served with Summons, Original Complaint, and First Amended and Substituted Complaint (ECF No. 94). The deadline for filing an Answer has passed and Autry did not deny the allegations as to him. The undisputed facts in this case demonstrate that Autry was Plaintiffs’ employer within the meaning of the FLSA and summary judgment on Autry’s employment status should be granted in 1 Plaintiffs’ Renewed Motion for Conditional Certification of Class of salaried Supervisors is currently pending in front of this Court. (ECF No. 96). The Motion is unopposed because no Defend- ants filed any response to the motion and the deadline for filing a response has passed. Case 5:15-cv-00943-XR Document 97 Filed 07/21/16 Page 3 of 10 Page 4 of 10 Markos George, et al. v. Go Frac, LLC, et. al U.S.D.C. (W.D. Tex.) Case No. 5:15-cv-943-XR Plaintiffs’ Motion for Summary Judgment Regarding Individual Liability of Separate Defendant Frank Autry and Incorporated Memorandum Brief in Support Plaintiffs’ favor. Autry was a Chief Operating Officer of Go Frac. Crawford Dep. 22:14-22, ECF No. 97-1. Autry was “extremely knowledgeable in fracking. Probably knows how to frack an oil well better than just about anybody in the world.” Id. at 7:10-14. Autry created policies and procedures that were adopted at Go Frac. Id. at 27:23-28:5. Autry hired employees to work for Go Frac. Id. at 29:1-2. He supervised employees and set up all employment policies at Go Frac. Id. at 29:1-24. Richard Crawford testified at his deposition that Autry was a “control freak,” “was responsible for running the company,” and “all decisions went through him.” Id. Autry was a micromanager and wanted absolute control over Go Frac. Id. at 29:25-30:5. Autry was not willing or delegate his managing responsibilities with anyone. Id. at 52:9-53:11. Autry was either at the job site or at Go Frac’s headquarters every day. Id. at 30:18-23. Autry made the decisions relating to Go Frac’s budget. Id. at 40:12-18. Under the Fair Labor Standards Act (“FLSA”), “any employer who violates” the Act is liable to the affected employees. 29 U.S.C.S. § 216(b). All of the evidence in this case establishes that Autry is an employer of Plaintiffs and Class Members, and Defendants can produce no genuine issue of material fact which would permit a reasonable jury or this Court to find that Autry was not an employer of Plaintiffs and Class Members. Therefore, Plaintiffs are entitled to summary judgment in their favor on this issue. Resolution of this issue will prevent wasteful litigation and allow the parties to focus on the core issues in this case. Case 5:15-cv-00943-XR Document 97 Filed 07/21/16 Page 4 of 10 Page 5 of 10 Markos George, et al. v. Go Frac, LLC, et. al U.S.D.C. (W.D. Tex.) Case No. 5:15-cv-943-XR Plaintiffs’ Motion for Summary Judgment Regarding Individual Liability of Separate Defendant Frank Autry and Incorporated Memorandum Brief in Support II. STANDARD OF REVIEW Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party has the burden of showing that there is no genuine issue as to a material fact and that the moving party is entitled to judgment as a matter of law. Willis v. Roche Biomedical Lab., Inc., 61 F.3d 313, 315 (5th Cir. 1995). Once the movant carries its initial burden, the burden shifts to the nonmovant to show that summary judgment is inappropriate. Fields v. City of S. Houston, 922 F.2d 1183, 1187 (5th Cir. 1991). All justifiable inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). In making this determination, the court will review the evidence in the record and disregard the evidence favorable to the moving party that the jury is not required to believe. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 135, 147 L. Ed. 2d 105, 120 S. Ct. 2097 (2000). In order for a court to conclude that there are no genuine issues of material fact, the court must be satisfied that no reasonable trier of fact could have found for the nonmovant, or, in other words, that the evidence favoring the nonmovant is insufficient to enable a reasonable jury to return a verdict for the nonmovant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n.4, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). If the record, viewed in this light, could not lead a rational trier of fact to find for the party opposing the motion, summary judgment is proper. Case 5:15-cv-00943-XR Document 97 Filed 07/21/16 Page 5 of 10 Page 6 of 10 Markos George, et al. v. Go Frac, LLC, et. al U.S.D.C. (W.D. Tex.) Case No. 5:15-cv-943-XR Plaintiffs’ Motion for Summary Judgment Regarding Individual Liability of Separate Defendant Frank Autry and Incorporated Memorandum Brief in Support III. ARGUMENT A. Applicable Law Under the FLSA, an "'[e]mployer' includes any person acting directly or indirectly in the interest of an employer in relation to an employee and includes a public agency, but does not include any labor organization (other than when acting as an employer) or anyone acting in the capacity of officer or agent of such labor organization." 29 U.S.C. § 203(d). A "'[p]erson' means an individual, partnership, association, corporation, business trust, legal representative, or any organized group of persons." Id. § 203(a). Whether a person is an employer under the FLSA is a question of law, although "subsidiary findings are of fact." Beliz v. W.H. McLeod & Sons Packing Co., 765 F.2d 1317, 1327 (5th Cir. 1985). The definition of "employer" under the FLSA is "expansive," extending liability to persons with "managerial responsibilities" and "substantial control of the terms and conditions of the [employee's] work." Donovan v. Grim Hotel Co., 747 F.2d 966, 971 (5th Cir. 1984) (quoting Falk v. Brennan, 414 U.S. 190, 195, 94 S. Ct. 427, 38 L. Ed. 2d 406 (1973)). Analyzing whether a person is an "employer" under the FLSA "must focus upon the totality of the circumstances, underscoring the economic realities of the [employee's] employment." Donovan v. Sabine Irrigation Co., 695 F.2d 190, 194 (5th Cir. 1983). The test is one of "economic reality," rather than "technical concepts." See Goldberg v. Whitaker House Cooperative, Inc., 366 U.S. 28, 33, 81 S. Ct. 933, 6 L. Ed. 2d 100 (1961); Gray v. Powers, 673 F.3d 352, 354 (5th Cir. 2012). "The overwhelming weight of authority is that a corporate officer with operational control of a corporation's covered enterprise is an employer along with the corporation, jointly and severally liable under Case 5:15-cv-00943-XR Document 97 Filed 07/21/16 Page 6 of 10 Page 7 of 10 Markos George, et al. v. Go Frac, LLC, et. al U.S.D.C. (W.D. Tex.) Case No. 5:15-cv-943-XR Plaintiffs’ Motion for Summary Judgment Regarding Individual Liability of Separate Defendant Frank Autry and Incorporated Memorandum Brief in Support the FLSA for unpaid wages." Grim Hotel Co., 747 F.2d at 972 (quoting Donovan v. Agnew, 712 F.2d 1509, 1511 (1st Cir. 1983)); see Lee v. Coahoma County, Miss., 937 F.2d 220, 226 (5th Cir.1991) ("If an individual with managerial responsibilities is deemed an employer under the FLSA, the individual may be jointly and severally liable for damages resulting from the failure to comply with the FLSA."), modified on other grounds, 37 F.3d 1068 (5th Cir. 1993). A corporate officer need not have an ownership interest in the company to be liable under the FLSA. See Reich v. Circle C. Invs., Inc., 998 F.2d 324, 329 (5th Cir. 1993)). Instead, a court must determine whether the officer "effectively dominates [the company's] administration or otherwise acts, or has the power to act, on behalf of the corporation vis-a-vis its employees." Sabine Irrigation Co., 695 F.2d at 194-95. Key factors under this test of economic reality include whether an alleged employer: "(1) possessed the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records." Williams v. Henagan, 595 F.3d 610, 620 (5th Cir. 2010), citing Watson v. Graves, 909 F.2d 1549, 1553 (5th Cir. 1990), see also Baker v. Stone County, 41 F. Supp. 2d 965, 980 (W.D. Mo. 1999) (applying the same four-factor test). “[N]o one factor is dispositive, but instead a court must consider the economic realities and the circumstances of the whole activity.” Baker, 41 F. Supp 2d at 980. Where both a corporation and a corporate officer satisfy the definition of “employer” under the FLSA, “the officer and the corporation are jointly and severally liable for unpaid overtime wages themselves. Donovan v. Grim Hotel Co., 747 F.2d 966, Case 5:15-cv-00943-XR Document 97 Filed 07/21/16 Page 7 of 10 Page 8 of 10 Markos George, et al. v. Go Frac, LLC, et. al U.S.D.C. (W.D. Tex.) Case No. 5:15-cv-943-XR Plaintiffs’ Motion for Summary Judgment Regarding Individual Liability of Separate Defendant Frank Autry and Incorporated Memorandum Brief in Support 972 (5th Cir. 1984), quoting Donovan v. Agnew, 712 F.2d 1509, 1511 (1st Cir. 1983). Craven v. Excel Staffing Serv., 2014 U.S. Dist. LEXIS 11668 (S.D. Tex. Jan. 30, 2014). A court need not pierce the corporate veil to find an officer of a corporation liable under the FLSA. See Donovan, 712 F.2d at 1512-14, see also Chambers Constr. Co. v. Mitchell, 233 F.2d 717, 723 (8th Cir. Neb. 1956). B. Employer Liability of Separate Defendant Autry Plaintiffs are entitled to summary judgment in their favor regarding the status of Separate Defendant Autry as Plaintiffs’ employer. It is undisputed that at all times relevant to this lawsuit, Autry was the Chief Operating Officer of Go Frac. Crawford Dep. 22:14-22, ECF No. 97-1. Autry was “extremely knowledgeable in fracking. Probably knows how to frack an oil well better than just about anybody in the world.” Id. at 7:10- 14. Autry created policies and procedures that were adopted at Go Frac. Id. at 27:23- 28:5. Autry hired employees to work for Go Frac. Id. at 29:1-2. He supervised employees and set up all employment policies at Go Frac. Id. at 29:1-24. Richard Crawford testified at his deposition that Autry was a “control freak,” “was responsible for running the company,” and “all decisions went through him.” Id. Autry was a micromanager and had absolute control over Go Frac. Id. at 29:25-30:5. Autry was not willing or delegate his managing responsibilities with anyone. Id. at 52:9-53:11. Autry was either at the job site or at Go Frac’s headquarters every day. Id. at 30:18-23. Autry made the decisions relating to Go Frac’s budget. Id. at 40:12-18. In his role at the top of the company, Autry performed work that satisfies each and every factor of the economic reality test. During the statutory period, Autry played an active and controlling role in the day-to-day operations of Go Frac. Further, Autry’s Case 5:15-cv-00943-XR Document 97 Filed 07/21/16 Page 8 of 10 Page 9 of 10 Markos George, et al. v. Go Frac, LLC, et. al U.S.D.C. (W.D. Tex.) Case No. 5:15-cv-943-XR Plaintiffs’ Motion for Summary Judgment Regarding Individual Liability of Separate Defendant Frank Autry and Incorporated Memorandum Brief in Support decisions have been instrumental in establishing the pay, benefits, working hours, corporate culture and working conditions of Plaintiffs. Under this set of circumstances, there is no genuine issue of material fact remaining for trial on the issue of whether Autry was sufficiently involved in the day-to-day operations of Go Frac so as to fall within the definition of “employer” according to the FLSA. As explained above, it is undisputed that Autry had an absolute control over Go Frac, and was responsible for running the company. Crawford Dep. 29:1-30:5, ECF No. 97-1. Autry supervised employees and set up all employment policies at Go Frac. Id. at 29:1-24. Autry supervised employees of Go Frac and controlled their work schedules. Id. at 69:11-14. Autry had complete operational control over Go Frac. Id. at 69:15-22. Autry was either at the job site or at Go Frac’s headquarters every day. Id. at 30:18-23. Autry made the decisions relating to Go Frac’s budget. Id. at 40:12-18. All of these facts support a conclusion that Autry was an employer liable for violations of the FLSA. It is only natural that Autry should be held responsible for the company’s violations of the law. C. Conclusion Autry cannot raise a genuine issue of material fact from which this Court or a reasonable jury could determine that he is not Plaintiffs’ employer, Plaintiffs are entitled to summary judgment in their favor regarding the liability of Separate Defendant Autry as an employer of Plaintiffs pursuant to the FLSA. WHEREFORE, premises considered, Plaintiffs Markos George, et al., each individually and on behalf of all others similarly situated, respectfully request an order of this Court granting their motion for partial summary judgment regarding the employer Case 5:15-cv-00943-XR Document 97 Filed 07/21/16 Page 9 of 10 Page 10 of 10 Markos George, et al. v. Go Frac, LLC, et. al U.S.D.C. (W.D. Tex.) Case No. 5:15-cv-943-XR Plaintiffs’ Motion for Summary Judgment Regarding Individual Liability of Separate Defendant Frank Autry and Incorporated Memorandum Brief in Support status of Autry and for such other relief as may be just and proper. Respectfully submitted, MARKOS GEORGE, et. al., Individually and on behalf of Others Similarly Situated, PLAINTIFFS SANFORD LAW FIRM, PLLC One Financial Center 650 S. Shackleford Road, Suite 411 Little Rock, Arkansas 72211 Telephone: (501) 221-0088 Facsimile: (888) 787-2040 By: /s/ Josh Sanford Josh Sanford Texas. Bar No. 24077858 josh@sanfordlawfirm.com CERTIFICATE OF SERVICE I, Josh Sanford, do hereby certify that a true and correct copy of the foregoing pleading was electronically filed with the Clerk for the U.S. District Court, Western Dis- trict of Texas, on July 21, 2016, using the electronic case filing system of the Court. The attorney listed below is registered to receive an electronic copy hereof. A copy of this Motion and Brief was also sent via USPS first class mail postage prepaid to Frank Autry at the address below: James J. Parks, Esq. Jaffe Raitt Heuer & Weiss, P.C. 27777 Franklin Road, Suite 2500 Southfield, Michigan 48034 P: 248.351.3000 D: 248.727.1434 F: 248.351.3000 jparks@jaffelaw.com www.jaffelaw.com Mr. Frank Autry 6300 Ridglea Place Fort Worth, Texas 76116 /s/ Josh Sanford Josh Sanford Case 5:15-cv-00943-XR Document 97 Filed 07/21/16 Page 10 of 10 Case 5:15-cv-00943-XR Document 97-1 Filed 07/21/16 Page 1 of 12 Case 5:15-cv-00943-XR Document 97-1 Filed 07/21/16 Page 2 of 12 Case 5:15-cv-00943-XR Document 97-1 Filed 07/21/16 Page 3 of 12 Case 5:15-cv-00943-XR Document 97-1 Filed 07/21/16 Page 4 of 12 Case 5:15-cv-00943-XR Document 97-1 Filed 07/21/16 Page 5 of 12 Case 5:15-cv-00943-XR Document 97-1 Filed 07/21/16 Page 6 of 12 Case 5:15-cv-00943-XR Document 97-1 Filed 07/21/16 Page 7 of 12 Case 5:15-cv-00943-XR Document 97-1 Filed 07/21/16 Page 8 of 12 Case 5:15-cv-00943-XR Document 97-1 Filed 07/21/16 Page 9 of 12 Case 5:15-cv-00943-XR Document 97-1 Filed 07/21/16 Page 10 of 12 Case 5:15-cv-00943-XR Document 97-1 Filed 07/21/16 Page 11 of 12 Case 5:15-cv-00943-XR Document 97-1 Filed 07/21/16 Page 12 of 12 IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION MARKOS GEORGE, COURTNEY TAYLOR PLAINTIFFS and THOMAS NORRIS, Each Individually and on behalf of All Others Similarly Situated vs. No. 5:15-cv-943-XR GO FRAC, LLC; and RICHARD CRAWFORD, DEFENDANTS G.F. CRAWFORD and FRANK AUTRY, Each Individually and as Officers of Corporate Defendants ORDER On this date, the Court considered Plaintiffs’ Motion for Summary Judgment Regarding Individual Liability of Separate Defendant Frank Autry and Incorporated Memorandum Brief in Support (Docket No. 97). I. Standard of Review When a party moves for summary judgment, the reviewing court shall grant the motion “if the movant shows that 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 dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All reasonable doubts on questions of fact must be resolved in favor of the party opposing summary judgment. Evans v. City of Houston, 246 F.3d 344, 348 (5th Cir. 2001) (citation omitted). Case 5:15-cv-00943-XR Document 97-2 Filed 07/21/16 Page 1 of 5 II. Background Plaintiffs seek summary judgment in their favor with respect to the limited legal issue of the status of Separate Defendant Frank Autry (hereinafter “Defendant” or “Au- try”) as an “employer” of Plaintiffs, opt-in plaintiffs, and all members of the FLSA collec- tive classes, as the term is defined at 29 U.S.C. § 203(d). On October 30, 2015, Plain- tiff filed his Original Complaint – Collective Action (ECF No. 2) against Defendants Go Frac, LLC (Go Frac), Richard Crawford, and G.F. Crawford. Complaint alleged that De- fendants failed to pay Plaintiff George and other hourly employees of Go Frac for all hours worked in excess of forty (40) per week. Id. at 44. Defendants filed their An- swers (ECF No. 8 and 9) and Defendant Richard Crawford filed his Motion for Summary Judgment (ECF No. 10) which was denied without prejudice (ECF No. 17). On January 13, 2016, the Court conditionally certified a class of all hourly paid operators who were employed by Go Frac after October 30, 2012. (ECF No. 24). As a result of Plaintiffs sending their court-approved notice, over 200 hundred operators have joined the case. On April 4, 2016, Plaintiffs filed their First Amended and Substituted Complaint (ECF No. 1), adding Frank Autry as a separate Defendant and adding class allegations on behalf of salaried Supervisors employed by Go Frac within the relevant time period.1 On June 1, 2016, Autry was served with Summons, Original Complaint, and First Amended and Substituted Complaint (ECF No. 94). The deadline for filing an Answer has passed and Autry did not answer the Complaint. 1 Plaintiffs’ Renewed Motion for Conditional Certification of Class of salaried Supervisors is currently pending in front of this Court. (ECF No. 96). The Motion is unopposed because no Defendants filed any response to the motion and the deadline for filing a response has passed. Case 5:15-cv-00943-XR Document 97-2 Filed 07/21/16 Page 2 of 5 III. Analysis Plaintiffs seek summary judgment establishing that Autry is an employer under the FLSA and accordingly personally liable for any damages in this case. “’Employer’” includes any person acting directly or indirectly in the interest of an employer in relation to an employee and includes a public agency, but does not include any labor organization (other than when acting as an employer) or anyone acting in the capacity of officer or agent of such labor organization.” 29 U.S.C. § 203(d). “Person” means an individual, partnership, association, corporation, business trust, legal repre- sentative, or any organized group of persons. 29 U.S.C. § 203(a). “The Supreme Court has termed the Act's employer definition ‘expansive’ and has held that ‘managerial responsibilities’ and ‘substantial control of the terms and con- ditions of the [employer's] work’ create statutory employer status.” Donovan v. Grim Ho- tel Co., 747 F.2d 966, 971-72 (5th Cir. 1984) (citing Falk v. Brennan, 414 U.S. 190, 195 (1973)). “The overwhelming weight of authority is that a corporate officer with opera- tional control of a corporation's covered enterprise is an employer along with the corpo- ration, jointly and severally liable under the FLSA for unpaid wages.” Grim Hotel Co., 747 F.2d at 971-72 (citing Donovan v. Agnew, 712 F.2d 1509, 1511 (1st Cir. 1983)). Autry was a Chief Operating Officer of Go Frac. Crawford Dep. 22:14-22, ECF No. 97-1. Autry was “extremely knowledgeable in fracking. Probably knows how to frack an oil well better than just about anybody in the world.” Id. at 7:10-14. Autry created policies and procedures that were adopted at Go Frac. Id. at 27:23-28:5. Autry hired employees to work for Go Frac. Id. at 29:1-2. He supervised employees and set up all employment policies at Go Frac. Id. at 29:1-24. Richard Crawford testified at his Case 5:15-cv-00943-XR Document 97-2 Filed 07/21/16 Page 3 of 5 deposition that Autry was a “control freak,” “was responsible for running he company,” and “all decisions went through him.” Id. Autry was a micromanager and wanted absolute control over Go Frac. Id. at 29:25-30:5. Autry was not willing or delegate his managing responsibilities with anyone. Id. at 52:9-53:11. Autry was either at the job site or at Go Frac’s headquarters every day. Id. at 30:18-23. Autry made the decisions relating to Go Frac’s budget. Id. at 40:12-18. Under the Fair Labor Standards Act (“FLSA”), “any employer who violates” the Act is liable to the affected employees. 29 U.S.C.S. § 216(b). The Fifth Circuit uses the “economic reality” test to evaluate whether there is an employer/employee relationship. Gray v. Powers, 673 F.3d 352, 354 (5th Cir. 2012). “In so doing, [courts must] adhere to the firmly-established guidon that the FLSA must be liberally construed to effectuate Congress' remedial intent.” Donovan v. Sabine Irrigation Co., 695 F.2d 190, 194 (5th Cir. 1983) (citing Donovan v. Janitorial Services, Inc., 672 F.2d 528 (5th Cir. 1982). “To determine whether an individual or entity is an employer, the court considers whether the alleged employer: ‘(1) possessed the power to hire and fire employees; (2) supervised or controlled employee work schedules or conditions of employment; (3) determined the rate or method of payment; and (4) maintained employee records.’” Gray, 673 F.3d at 355 (quoting Williams v. Henagan, 595 F.3d 610, 615 (5th Cir. 2010)). “The dominant theme in the case law is that those who have operating control over employees within companies may be individually liable for FLSA violations committed by the companies.” Gray, 673 F.3d at 357. All of the evidence in this case establishes that Autry is an employer of Plaintiffs and Class Members, and Defendants can produce no genuine issue of material fact which would permit a reasonable jury or this Court to find that Autry was not an employer of Plaintiffs and Class Members. Therefore, Plaintiffs’ Case 5:15-cv-00943-XR Document 97-2 Filed 07/21/16 Page 4 of 5 Motion for Summary Judgment is granted in its entirety. SIGNED this ___ day of August, 2016. ____________________________ HON. XAVIER RODRIGUEZ UNITED STATES DISTRICT JUDGE Case 5:15-cv-00943-XR Document 97-2 Filed 07/21/16 Page 5 of 5