A federal judge from the Southern District of Texas has granted a motion for summary judgment to a Texas Southern University’s strength and conditioning coach and athletic director, who were each named in an employment lawsuit by an assistant coach.
Plaintiff Vonna “Ray” Baxter had claimed that the individual defendants and the school violated the Fair Labor Standards Act by not paying him for the overtime hours he worked. The court, however, found that the individual defendants could not be deemed an “employer” for purposes of the FLSA.
Baxter began working as an assistant for Coach Johnny Olguin on April 28, 2008, and continued through early November of 2009. That initial spring, Olguin had informed the plaintiff that “he had obtained approval for Baxter to start as his assistant.” However, Olguin also claimed that he told Baxter “that (1) there was not enough funding in the athletic department’s then-current budget to pay Baxter for his work through the summer of 2008; (2) Baxter could volunteer with the possibility of becoming an employee in September 2008; and (3) Olguin would approach defendant Charles McClelland, the TSU athletic director, in September to ask if Baxter could be paid for the summer months retroactively.
“Baxter agrees that Olguin informed him about the budgetary concerns. Baxter’s understanding about his status and the possibility of being paid for the summer in September, however, is unclear because Baxter has presented the court with conflicting information. In Baxter’s declaration, which was filed in support of his opposition to the summary judgment motion, Baxter states that he was ‘hired’ in April of 2008 and that, when he was hired, ‘Olguin told [him] that [he] would be paid in September when the new budget was implemented.’ During Baxter’s deposition, Baxter claimed, consistent with his declaration, that he had understood that he ‘would be paid in September of 2008 retroactively,’ but he noted that those ‘may not have been Olguin’s exact words.’ Then, later in the deposition, Baxter stated: ‘I know Mr. Olguin does not have the final say on the budget. All he did was make recommendations, so I’m not trying to hold his feet to the fire. I mean, he made recommendations. Now, whether that happened or not was up to the athletic director.’”
According to the individual defendants, “McClelland determined in August 2008 that the TSU athletic department did not have sufficient funding to pay Baxter retroactively for assisting Olguin during the summer months, and Olguin informed Baxter of this decision.”
The defendants were able to hire Baxter in September, but only for part-time status, since there was a hiring freeze on full-time positions.
“Despite his official part-time status, Baxter claims that he worked an average of 52 hours each week, except during school breaks and the Christmas holidays, until his separation of employment in October of 2009….
“However, McClellan and Olguin state that even if Baxter did (work overtime), Olguin had no way of knowing whether Baxter was working or merely working out for his own benefit. Moreover, they argue that Baxter was required to obtain permission to work overtime and did not do so.”
Baxter ultimately sued, and McClellan and Olguin moved for summary judgment, arguing that they “are not ‘employers,’ as that term is defined in the FLSA.” Their argument centered on the fact that they “(1) did not have the power to hire and fire Baxter;(2) did not determine the rate and method of payment; and (3) did not maintain Baxter’s employment records.”
Baxter countered that the definition of employer under the FLSA is sufficiently broad to encompass both McClellan and Olguin. Specifically, they “had sufficient involvement in the terms and conditions of Baxter’s employment to be considered employers under the FLSA. Specifically, Baxter claims that Olguin hired Baxter, after receiving permission from McClellan, and that Olguin determined what hours Baxter worked and directed his day-to-day activities. Thus, Olguin and McClellan together ‘hired Baxter, determined his work schedule, assigned Baxter’s job duties and set his rate of pay.’”
The court was unmoved.
“First, these activities, taken together, do not rise to ‘substantial control’ over TSU’s operations. Second, even if they did, it is inappropriate to analyze the areas in which McClellan had control and the areas in which Olguin had control in order to find them both, individually, liable under the statute as employers. The question is not whether the individual defendants, together, exert sufficient control to be considered an employer, it is whether each defendant, standing alone, has sufficient control to be held liable as an employer for alleged violations of the FLSA. Donovan v. Grim Hotel Co., 747 F.2d 966, 972 (5th Cir. 1984). If courts were to look at the control exerted by a group of defendants collectively, then plaintiffs would be able to string together a line of defendants in any company that, together, exercise enough control to be considered employers under the FLSA. Individuals such as payroll processors and records clerks could be held personally liable as employers under the FLSA. Obviously, neither Congress nor the courts interpreting the FLSA intended for the term ‘employer’ to encompass such individuals. The court, therefore, considers Olguin’s level of control and McClellan’s level of control separately.
“Olguin managed Baxter’s day-to-day activities, but Baxter does not dispute that Olguin had to get permission to hire Baxter and had no control over pay or record-keeping. McClellan allegedly gave permission to hire Baxter and set the pay bar for Baxter’s pay in accordance with the athletic department budget, but Baxter does not dispute that McClellan had no control over Baxter’s day-to-day duties or record-keeping. Both McClellan and Olguin claim that they did not have the authority to terminate Baxter’s employment, and Baxter does not present any evidence to the contrary. These activities do not rise to “substantial control” over the terms and conditions of Baxter’s employment. Thus, neither McClellan nor Olguin is an employer under the FLSA.”
Vonna “Ray” Baxter v. Charles Mcclelland & Johnny Olguin; S.D. Tex.; CIVIL ACTION H-09-3676, 2010 U.S. Dist. LEXIS 117709; 11/5/10
Attorneys of Record: (for plaintiff) Mark Siurek of Warren Siurek LLP, Houston, TX. (for defendant Texas Southern University) Allison V. Eberhart, Austin, TX. Mishell B Kneeland, LEAD ATTORNEY, Office of the Attorney General, General Litigation Division, Austin, TX.
