Silva v. Thunderbird Restaurants LLC et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Omar Silva,
Plaintiff,
v.
Thunderbird Restaurants LLC, et al.,
Defendants.
No. CV-24-00629-PHX-ROS
ORDER
This is an action arising under the Fair Labor Standards Act (“FLSA”) and Arizona
wage laws. Plaintiff filed a Motion for Summary Judgment (Doc 59). Defendants
responded (Doc. 64), and Plaintiff replied (Doc. 67). For the reasons below, the Motion
will be denied.
I. Background
Beginning in February 2024 through approximately March 8, 2024, Plaintiff Omar
Silva was employed as a cook at T-Bird Tavern in Scottsdale, Arizona earning $18 per
hour. (Doc. 25 ⁋ 48-50, 57). T-Bird Tavern is owned and operated by Defendant
Thunderbird Restaurants LLC. (Doc. 60 ⁋ 1). Thunderbird Restaurants is owned and
managed entirely by TB Ventures and Ace High Partners. (Doc. 60 ⁋ 2). TB Ventures is
owned and operated by Defendant Brandt. (Id. at ⁋ 3). Ace High Partners is owned and
operated by Defendant Cordova. (Id. at ⁋ 4).
During his employment, Plaintiff was paid in cash, and Juan Salazar, the kitchen
manager, generally handled the payments. (Id.) Between March 1, 2024, and March 7,
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2024, his final workweek, Plaintiff worked a total of 39.3 hours. (Id. at 4). The
circumstances surrounding Plaintiff’s termination are strongly disputed.
Plaintiff alleges he was terminated via text message by Juan Salazar and asked not
to return. (Id. at 5). As a result, Plaintiff never received his last payment. (Id.) Defendants
have presented more than one version of events throughout the course of this litigation, but
in essence state Defendant Troy Brandt terminated Plaintiff personally, handed him an
envelope containing the full $707.39 owed, and watched Plaintiff count the money and
acknowledge the payment. (Doc. 63-2 at 3-4). Plaintiff subsequently brought this action
and now seeks summary judgment on Counts Two, Three, and Four for failure to pay
minimum wage under the Fair Labor Standards act (“FLSA”) and Arizona Minimum Wage
Act (“AMWA”), and failure to pay wages under the Arizona Wage Act (“AWA”).
II. Legal Standards
A court must grant summary judgment if the pleadings and supporting documents,
viewed in the light most favorable to the nonmoving party, “show that there is no genuine
issue as to any material fact and that the moving party is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
The moving party bears the initial responsibility of presenting the basis for its motion and
identifying those portions of the record that it believes demonstrates the absence of a
genuine issue of material fact. Celotex, 477 U.S. at 323. The non-moving party must then
point to specific facts establishing there is a genuine issue of material fact for trial. Id.
At summary judgment, the Court considers only admissible evidence. See Fed. R.
Civ. P. 56(c)(1)(B). When considering a motion for summary judgment, a court should
not weigh the evidence or assess credibility; instead, “the evidence of the non-movant is to
be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). A genuine issue of material fact exists “if the
[admissible] evidence is such that a reasonable jury could return a verdict for the non-
moving party.” Id. at 248. In ruling on the motion for summary judgment, the Court will
construe the evidence in the light most favorable to the non-moving party. Barlow v.
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Ground, 943 F.2d 1132, 1135 (9th Cir. 1991).
III. Discussion
To prove liability for failure to pay minimum wage under the FLSA, Plaintiff must
show (1) he was employed by Defendants, (2) he was covered under the FLSA, and (3)
Defendants failed to pay him at least minimum wage for all hours he worked in a given
workweek. 29 U.S.C. § 206(a).
“To state a claim under the AMWA, the defendant must be an employer under the
statute, the plaintiff must be a qualified employee of the defendant, and the plaintiff must
allege that she was not paid the applicable minimum wage for hours worked.” Smith v.
Helton Brewing Co., CV-23-01120-PHX-SPL, 2023 WL 5135142, *3 (D. Ariz. Aug. 10,
2023).
Under the Arizona Wage Act, “if an employer . . . fails to pay wages due to an
employee, the employee may recover in a civil action against an employer ... an amount
that is treble the amount of unpaid wages.” Ariz. Rev. Stat. § 23-355(A).” For each of
Plaintiff’s claims, the issues on summary judgment are (1) whether each Defendant
qualifies as an employer, and (2) whether Plaintiff was paid for his final week of work.
a. Employer Status
Plaintiff argues the Court should find all Defendants were Plaintiff’s employers
under the FLSA and the AMWA. Defendants have admitted Troy Brandt and Thunderbird
Restaurants are employers, but contend Ace High Partners, TB Ventures, and Kelley Albert
Cordova are not employers because Thunderbird Restaurants was the sole owner and
operator of T-Bird Tavern.
Employment status under the FLSA is determined not by “contractual labels” or
“technical concepts,” but by the economic realities of the employment relationship.
Goldberg v. Whitaker House Co-op., Inc., 366 U.S. 28, 32 (1961); Real v. Driscoll
Strawberry Assocs., Inc., 603 F.2d 748, 755 (9th Cir. 1979). In making this determination,
the Ninth Circuit considers whether an individual or entity has (1) the power to hire and
fire employees, (2) the power to supervise and control employee work schedules, (3) the
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power to determine salaries, and (4) the responsibility to maintain employment records.
Bonnette v. Cal. Health & Welfare Agency, 704 F.2d 1465, 1475 (9th Cir. 1983). The FLSA
also covers “any person acting directly or indirectly in the interest of an employer in
relation to an employee.” 29 U.S.C. § 203(d). “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 the FLSA for
unpaid wages,” Donovan v. Agnew, 712 F.2d 1509, 1514 (1st Cir. 1983), and “managers
are individually liable under the FLSA,” Boucher v. Shaw, 572 F.3d 1087, 1093 (9th Cir.
2009).
The undisputed facts have established the following structure: T-Bird Tavern, is
owned and operated by Defendant Thunderbird Restaurants LLC. (Doc. 60 ⁋ 1).
Thunderbird Restaurants is owned and managed entirely by TB Ventures and Ace High
Partners. (Doc. 60 ⁋ 2). TB Ventures is owned and operated by Defendant Brandt. (Id. at ⁋
3). Ace High Partners is owned and operated by Defendant Cordova. (Id. at ⁋ 4). Plaintiff
has presented evidence that Defendant Cordova was personally involved in the operation
of T-Bird tavern. Defendants challenge this evidence1 and offer Cordova’s sworn statement
that he did not have authority to hire or fire kitchen staff, to set and control rates of pay and
work schedules for kitchen staff, or the responsibility to maintain employment records for
kitchen staff.
Ownership and management of T-Bird Tavern ultimately traces directly back to
Defendants Troy Brandt and Kelley Cordova through their individually owned LLCs, and
no other entities or individuals have any similar ownership or control. Absent evidence to
the contrary, there is no legal reason to ignore this economic reality and shield those with
ultimate and sole ownership and control of a business from FLSA and AMWA liability
simply because the business is owned through a multi-level holding structure. All
Defendants will be required to defend the claims at trial.
1 Defendants challenge Plaintiff’s use of discovery answers submitted by Cordova in
another case. This evidence is admissible as a statement of a party opponent and is directly
relevant to the issues in this action. See Fed. R. Evid. 801(d)(2).
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Plaintiff further contends Defendants Thunderbird Taverns, TB Ventures, and Ace
High Partners are employers under the Arizona Wage Act. See A.R.S. § 23-350.
Defendants contend only Thunderbird Taverns is an employer. The Arizona Wage Act
defines an employer somewhat more narrowly than the FLSA, covering only “any
individual, partnership, association, joint stock company, trust or corporation . . .
employing any person.” A.R.S. § 23-350. “The available legal opinions interpreting this
statutory definition of an ‘employer’ who is liable for the non-payment of wages by a
specified date after the termination of employment does not authorize individual liability
against the owners, officers, and directors of a corporate employer in a case where the claim
is for the employer’s wholesale failure to pay wages.” Valenzuela v. Esser, CV 22-01180
PHX CDB, 2023 WL 2815548 *4 (D. Ariz. Mar. 14, 2023), report and recommendation
adopted, CV-22-01180-PHX-CDB, 2023 WL 2814078 (D. Ariz. Apr. 6, 2023). Plaintiff
has failed to establish as a matter of law that TB Ventures and Ace High Partners employed
him for purposes of the Arizona Wage Act.
b. Failure to Pay Wages
Plaintiff and Defendants have proffered conflicting evidence regarding whether
Plaintiff was paid for his final week of work. Defendants claim Troy Brandt personally
terminated Plaintiff and handed Plaintiff an envelope containing the cash payment for his
final workweek. Plaintiff alleges he was fired by the kitchen manager via text and was
consequently never paid for his final week.
The central and highly disputed evidence in this case is a payroll record for “Omar
Silver”, for the week of March 1, 2024, through March 7, 2024. The parties agree this is
the record for Plaintiff’s final workweek. The record reflects a total of 39.3 hours worked,
and in the columns for rate of pay and total pay, lists “$0.00.” (Doc. 60-9 at 2). Both parties
contend this record entitles them to summary judgment; however, the record is, at best,
ambiguous, and at worst, deliberately misleading. Interpretation of this record is a genuine
question of material fact to be resolved by a jury.
Defendants allege the “$0.00” entries were the marker used by T-Bird Tavern “in
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the ordinary course of business to track employees who are paid in cash and could not be
verified or entered into our direct deposit system.” (Doc. 63-2 ⁋ 21).2 Additionally,
Defendants make the curious assertion that “maintaining the records in this manner is one
of the ways T-Bird Tavern ensures its records are accurate and that cash pay employees are
paid in full and on time.” (Id. at ¶ 23) Defendants do not attempt to expand upon how the
entry of “$0.00” in payroll records accomplishes those ends.
Defendants argue the payroll records are sufficient to establish Plaintiff was paid
because they “facially establish the precise number of hours worked by Plaintiff during his
final week, including the specific clock in and clock out time by day.” (Doc. 64 at 9). The
FLSA requires records not only of the hours worked but also wages paid to an employee.
The recordkeeping requirements of the FLSA are “strict” and “an employer’s lack of
recordkeeping cannot be used to penalize the employee by denying him recovery on the
ground that he is unable to prove the precise extent of uncompensated work.” Lopez v.
Babas Motorsports LLC, CV-24-03090-PHX-JJT, 2025 WL 2986859 at *3 (D. Ariz. Oct.
23, 2025). Regardless of whether the records establish the hours Plaintiff worked, a
document reflecting “$0.00” in pay does not as a matter of law show a non-zero amount of
wages paid and cannot conclusively establish that adequate and legal payment was made
simply because an employer claims it does, particularly when the employee here
definitively says he was not paid. What is more, no authority establishes Defendants’
payroll records create an irrebuttable presumption of nonpayment. Defendants have
presented evidence in the form of Troy Brandt’s sworn declaration that Plaintiff was paid.
Credibility and weight of evidence is not resolved on summary judgment. As such, the
question of whether Plaintiff was actually paid for his final workweek is for resolution by
the trier of fact.
IV. Defendant’s Response
Defendants failed to file their own Motion for Summary Judgment but, at the end
of their Response to Plaintiff’s Motion, they request summary judgment be granted in their
2 Defendants also make the somewhat inconsistent assertion that “T-Bird Tavern did not
want to record Plaintiff’s time in this manner, but he forced them to.” (Doc. 63 at 9-10).
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favor. (Doc. 64 at 11). Although the Court has authority to grant summary judgment for a
nonmovant sua sponte, (see Fed. R. Civ. P. 56(f) Judgment Independent of the Motion), if
a party wishes to seek summary judgment it must do so in a properly and timely filed
motion for summary judgment “identifying each claim or defense—or the part of each
claim or defense—on which summary judgment is sought,” Fed. R. Civ. P. 56(a), and
“setting forth each material fact on which the party relies in support of the motion,” LRCiv
56.1. Defendants’ summary judgment claim is procedurally waived, and there are genuine
questions of material fact established in the briefs on the Motion for Summary Judgement
and Response as to whether each Defendant was an employer and whether Plaintiff was
paid for his final week of work. The Motion for Summary Judgment will be denied, and
the matter will proceed to trial.
IT IS ORDERED the Motion for Summary Judgment, (Doc. 59), is DENIED.
IT IS FURTHER ORDERED the parties shall prepare and file a Joint Status
Report discussing readiness for trial, any remaining possibility of settlement, and whether
the parties would like to request the appointment of a Magistrate Judge to conduct a
settlement conference. The Joint Status Report shall be filed no later than May 29, 2026.
Dated this 19th day of May, 2026.
Honorable Roslyn O. Silver
Senior United States District Judge
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