Johnson v. Parks Floyd Investments LLC

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JOSHUA JOHNSON,
Plaintiff,
v. No. 2:23-cv-01063-SMD-KRS
PARKS-FLOYD INVESTMENTS,
LLC d/b/a VILLAGE LODGE
Defendant.
OPINION AND ORDER DENYING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
THIS MATTER is before the Court on Defendant Parks Floyd Investments, LLC d/b/a
Village Lodge’s (“Village Lodge”) motion for summary judgment. Doc. 24 (“Def.’s SJ Mot.”).
Plaintiff Joshua Johnson (“Johnson”) filed his response, and Defendant filed its reply. Doc. 33
(“Pl.’s Resp.”); Doc. 38 (“Def.’s Reply”). The Court also considers the allegations set forth in
Plaintiff’s complaint and Defendant’s answer. Doc. 1 (“Compl.”).
FACTUAL BACKGROUND
The case arises from an employment dispute between Plaintiff Johnson and Defendant
Village Lodge. See Compl. Village Lodge is a single-site local hotel. Def.’s SJ Mot. at 2. Johnson
began working for Village Lodge as a maintenance worker on August 7, 2021, at an initial rate of
$15 per hour.1 Compl. ¶ 15. Around November 7, 2022, Johnson’s pay increased to $16 per hour,
a rate he earned until his termination on or about October 11, 2023. Id.
As a maintenance worker, Johnson performed various tasks on Village Lodge’s property.
Id. ¶ 17. Johnson asserts that he lived on-site throughout the relevant period and always remained
1 Defendant points out inconsistencies in Plaintiff’s alleged start date, noting that Plaintiff’s complaint lists August 7,
2021, while his response lists August 6, 2020. See Def.’s Reply at 2–3.
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on call to handle discrete assignments, such as unloading trucks, opening guest rooms, and carrying
luggage. Id. ¶ 20; Pl.’s Resp. at 9. Johnson claims that Village Lodge regularly required him to
work over 40 hours per week, with his manager, Asia Miner, messaging him at all hours to assign
tasks. Compl. ¶ 30.
To support this claim, Johnson provided screenshots of messages showing that Miner
assigned him tasks at various hours. See Doc. 33-1 at 6–24. Johnson alleges that Village Lodge
routinely failed to pay his overtime at the appropriate rate, instead treating his on-call hours as “off
the clock.” Id. ¶¶ 32, 35. According to Johnson, he worked an average of 80 or more hours per
week from November 28, 2021 to approximately October 11, 2023. Id. ¶ 34.
Johnson raised concerns with Miner regarding the alleged discrepancy in his overtime pay.
Id. ¶ 37. Johnson alleges that Miner ignored his objections and refused to remedy the pay practices.
Id. ¶ 39.2 On October 9, 2023, Johnson’s counsel issued a demand letter on his behalf seeking
payment for his unpaid overtime. Id. ¶ 42. Two days later, Village Lodge terminated Johnson. Id.
¶ 44. Johnson maintains that this termination has caused him severe financial hardship. Id. ¶ 47.
Village Lodge rejects this narrative, asserting that Johnson was an independent contractor
rather than an employee, as he set his own schedules and did not work on a daily basis. Def.’s SJ
Mot. at 4; Doc. 25 at 11. In support of this classification, Village Lodge points out that Johnson
filed a Form 1099 when he first started. See Def.’s SJ Mot. at 6. Village Lodge further claims that
Johnson was free to leave the premises and that no evidence suggests he was required to always
be available. Id. Additionally, Village Lodge represents that it paid every invoice Johnson
submitted to manager Asia Miner. Id. at 8. Village Lodge claims that under this arrangement,
2 Plaintiff’s paragraph numbers are inconsistent after paragraph 37 (e.g., paragraph 15 erroneously follows paragraph
37). The Court cites these paragraphs according to their correct sequence rather than their labels.
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Johnson was compensated for hours claimed on specific tasks rather than on a daily or weekly
basis. Doc. 25 at 11.
Johnson has brought this action against Village Lodge alleging two counts, violation of 28
U.S.C. § 207 for failure to pay overtime compensation, and violation of 28 U.S.C. § 215(a)(3) for
unlawful retaliation.
LEGAL STANDARD
Summary judgment is warranted “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); see Butler v. Daimler Trucks N. Am., LLC, 74 F.4th 1131, 1140 (10th Cir. 2023). The moving
party bears the burden of “informing the district court of the basis for its motion, and identifying
those portions of [the record] which it believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once this requirement is met,
the non-movant can defeat summary judgment by showing that there is a genuine dispute of
material facts. Id. The non-movant’s response must “set forth specific facts by reference to
affidavits, deposition transcripts, or other exhibits to support the claim.” Serna v. Colo. Dep’t of
Corr., 455 F.3d 1146, 1151 (10th Cir. 2006). The court then reviews the proffered evidence and,
drawing all reasonable inferences in favor of the nonmoving party, determines whether the facts
“establish, at a minimum, an inference of the presence of each element essential to the case.”
Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th Cir. 2001).
DISCUSSION
A party’s statement of material facts must “set out a concise statement of all of the material
facts as to which the movant contends no genuine dispute exists.” D.N.M.LR-Civ. 56.1(b). The
statements must be numbered and “must refer to particularity to those portions of the record upon
which the movant relies.” Id. Defendant’s motion falls short of these requirements. Its statement
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of facts is unnumbered and lacks any citation to the record, save for two facts that it supports.
Where a purported fact omits a citation, it is facially deficient for purposes of summary judgment.
Mayfield v. Harvey Cnty. Sheriff’s Dep’t, 732 F. App’x 685, 689 (10th Cir. 2018) (affirming denial
of summary judgment where movant “cite[d] no evidence supporting their factual assertions”).
I. Undisputed Material Facts
The Court begins with the parties’ statements of undisputed material facts (“UMFs”) and
construes any disputed fact in the light most favorable to the non-moving party. See Bausman,
252 F.3d at 1115.
On or about November 7, 2022, Johnson alleged that Village Lodge increased his hourly
rate to $16, a rate he received until his termination. Pl.’s Resp. at 3. While Village Lodge admits
to this rate increase, it maintains that Johnson was never an employee. Def.’s Reply at 5.
Johnson raised concerns with Village Lodge, asserting that Village Lodge’s pay practice
violated the Fair Labor Standards Act (“FLSA”) and that it had misclassified his employment
status. Pl.’s Resp. at 4; Def.’s Reply at 6. On or around October 9, 2023, Johnson’s counsel issued
a demand letter to Village Lodge, alleging that its pay practices violated the law and seeking
payment for all overtime hours Johnson worked. Pl.’s Resp. at 4; Def.’s Reply at 6.
Johnson alleges that Village Lodge ignored his objections and refused to remedy the
disputed pay practice. Pl.’s Resp. at 4. Village Lodge admits receiving these objections but denies
any violation of the FLSA. Def.’s Reply at 6.
Two days after Johnson sent the demand letter, Village Lodge terminated him. Pl.’s Resp.
at 4. Village Lodge admits the timing of the termination, but it maintains that Johnson was never
an employee and denies that the termination was retaliatory. Def.’s Reply at 7.
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II. Disputed Facts
Apart from the facts mentioned above, Johnson and Village Lodge disagree over all other
factual assertions.
Village Lodge alleges that Johnson did not have a fixed workweek as defined by the FLSA.
Def.’s SJ Mot. at 2. Johnson disputes this claim, asserting that while he lacked a fixed schedule,
Village Lodge required him to always be available and compensated him on the same schedule as
other employees. Pl.’s Resp. at 2.
Village Lodge asserts that in September 2022, Johnson inquired about becoming an
employee but changed his mind after being informed that he would lose control over his
assignments, schedule, and hours. Def.’s SJ Mot. at 2. Johnson disputes this account, instead
asserting that he was always an employee rather than an independent contractor. He further denies
ever inquiring about a change in status in 2022. Pl.’s Resp at 2.
Village Lodge asserts that Johnson’s work did not involve any direct contact with interstate
commerce. Def.’s SJ Mot. at 2. Johnson disputes this claim, alleging that he regularly engaged in
interstate commerce by serving hotel guests from other states and purchasing out-of-state goods
for Village Lodge. Pl.’s Resp at 2.
Village Lodge alleges that it is a single-site local hotel with annual gross revenues of less
than $500,000. Def.’s SJ Mot at 2. Johnson disputes this claim, arguing that this figure fails to
account for cash transactions. Pl.’s Resp. at 2.
Johnson alleges that Asia Miner, manager and corporate representative for Village Lodge,
offered him employment as a maintenance worker at an initial rate of $15 per hour. Pl.’s Resp. at
3. Johnson asserts that he accepted the offer and commenced work on August 6, 2020. Id. Village
Lodge contests this account without further explanation. Def.’s Reply at 6.
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Johnson asserts that he never attended technical or trade school, does not own a business
entity related to the services he provided, and holds no license. Pl.’s Resp. at 3. While Village
Lodge disputes this assertion by stating that Johnson claimed to be an experienced self-employed
contractor, the Court finds the fact undisputed. See Def.’s Reply at 5. An individual’s lack of
formal technical training, business ownership, or professional licensing is not mutually exclusive
to being an experienced contractor.
Johnson alleges that Village Lodge exercised complete control over his work and that he
never used his own tools or supplies to complete his assignments. Pl.’s Resp. at 3. Village Lodge
disputes this assertion. Def.’s Reply at 5.
Johnson alleges that Village Lodge is a hotel that engages in interstate commerce by serving
out-of-state hotel guests and purchasing business supplies from out-of-state vendors. Pl.’s Resp.
at 3. Johnson further asserts that he personally participated in interstate commerce by assisting
out-of-state guests, unloading supply trucks from Texas, and purchasing tools from out-of-state
vendors for his work at the hotel. Id. Village Lodge disputes each of these assertions. Def.’s
Reply at 6.
Johnson alleges that Village Lodge required him to always be on-call and that he regularly
worked more than 40 hours per week. Pl.’s Resp. at 4. Village Lodge disputes these assertions.
Def.’s Reply at 6.
Johnson further alleges that he was required to submit time sheets rather than invoices to
receive payment, a fact that Village Lodge also disputes. Pl.’s Resp. at 4; Def.’s Reply at 6.
Johnson asserts that from November 28, 2021, to approximately October 11, 2023, he
averaged 80 hours of work per week. Pl.’s Resp. at 4. He further asserts that Village Lodge failed
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to compensate him for all overtime hours and neglected to maintain a timekeeping system to track
his hours or payrolls. Id. Village Lodge disputes each of these assertions. Def.’s Reply at 6.
Johnson submits handwritten records to support his claim of regularly working over 40
hours per week. See Doc. 33-1 at 25–59. Village Lodge provides no time sheets, pay stubs, or
contracts to clarify Johnson’s employment terms or the specific hours and days he worked. Instead,
Village Lodge relies exclusively on Asia Miner’s affidavit and portions of Johnson’s deposition.
See Doc. 25. Village Lodge also submits a settlement agreement from Johnson’s previous
employment at an unrelated hotel. See id. at 13–22. The Court declines to speculate whether
Village Lodge offers this document to suggest a prior pattern of conduct and finds it irrelevant to
the present motion.
III. Defendant Is Not Entitled to Summary Judgment on the Overtime Claim.
a. Genuine Disputes of Material Fact Exist Regarding Whether Village Lodge Is a
Covered Enterprise Under the FLSA.
Defendant Village Lodge argues that it is entitled to summary judgment on both counts of
Plaintiff Johnson’s complaint because it is not a covered enterprise as defined by the FLSA. Def.’s
SJ Mot. at 3. The Court finds, however, that Village Lodge’s coverage under the FLSA remains a
genuine dispute of material fact; therefore, Village Lodge is not entitled to summary judgment on
this issue.
Under 28 U.S.C. § 203(s)(1)(A), the FLSA only governs an employer if it: (1) has
employees engaged in commerce; and (2) has an annual gross sales or volume of business of at
least $500,000. Village Lodge contends that the FLSA does not apply to it because its annual gross
receipts remained below $500,000 from 2021 through 2023, the years Johnson claimed to have
worked for Village Lodge. Def.’s SJ Mot. at 3.
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Village Lodge submitted tax documents for the relevant period to support its position. See
Doc. 25 at 4–8. For 2020, Village Lodge reported gross receipts or sales of $252,815. See id. at
5. For 2021, Village Lodge reported $ 372,340.7 in gross payments from card and third-party
network transactions. See id. at 6. For 2022, its gross payments from card and third-party network
transactions totaled $423,975.59, and for 2023, that amount reached $487,480.49. See id. at 7–8.
Johnson disputes that Village Lodge’s annual gross revenue was less than $500,000, arguing that
the tax records fail to account for cash sales. Pl.’s Resp. at 3.
The Court notes that from 2021 to 2023, Village Lodge provides only tax records reflecting
card payments and third-party network transactions. See Doc. 25 at 6–8. Under 29 C.F.R.
§ 779.259, the “annual gross volume” for FLSA purposes includes the “the gross dollar volume
(not limited to income) derived from all sales and business transactions.” Because Village Lodge’s
2021–2023 records only include card and third-party transactions, they fail to account for all
business activity. While Village Lodge’s manager Asia Miner stated in her affidavit that the hotel
grossed less than $500,000 annually from 2017 to 2023 based on her review of available IRS
filings (Form 1120-S and 1099-K), Village Lodge failed to provide supporting evidence accounting
for its total gross income from 2021 through 2023. See Doc. 25 at 8. Specifically, Village Lodge
offered no records to establish that it had no other sources of revenue, such as cash sales, beyond
the reported card transactions.
Consequently, there is a genuine dispute of material facts regarding whether the FLSA
governs Village Lodge and whether its annual gross volume of business exceeds $500,000. But
see Johnson v. Sun & Chang Corp., 572 F. Supp. 3d 543, 549 (N.D. Ind. 2021) (granting summary
judgment in employer’s favor where the employee raised only conclusory allegations regarding
the employer’s income without producing evidence). Because Village Lodge as the movant has
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not demonstrated the absence of genuine dispute regarding its total gross income, the Court cannot
rule that the FLSA does not apply to Village Lodge as a matter of law.
b. Genuine Disputes of Material Fact Exist Regarding Whether Johnson Is a Covered
Individual Under the FLSA.
Even in the absence of enterprise coverage, an employee may still trigger the FLSA through
individual coverage if the employee engages in: (1) interstate commerce or producing goods for
commerce; or (2) activities that are closely related and directly essential to producing goods for
commerce. See 29 U.S.C. § 206(a); 29 U.S.C. § 207(a).
The Tenth Circuit has explained the standard for individual coverage under the FLSA as
follows:
For individual coverage, an employee must directly participate in the actual
movement of persons or things in interstate commerce. To determine whether an
employee is engaged in commerce we look at her activities, not the business of her
employer. She must either work for a transportation or communication industry
employer or regularly and recurrently use an instrument of interstate commerce,
such as a telephone. Isolated or sporadic activities do not satisfy this requirement.
Reagor v. Okmulgee Cnty. Fam. Res. Ctr., 501 F. App’x 805, 809 (10th Cir. 2012).
Village Lodge attempts to negate Johnson’s individual coverage under the FLSA by
alleging that he never worked directly in interstate commerce. Def.’s SJ Mot. at 8. Johnson
counters that the FLSA governs him because he regularly participated in interstate commerce by
serving hotel guests arriving from other states, loading and unloading trucks carrying out-of-state
supplies, and purchasing goods from out-of-state vendors for Village Lodge. Pl.’s Resp. at 2, 3, 9.
While the Court finds that Johnson’s claim for individual coverage appears tenuous, a genuine
dispute of material fact remains, and Village Lodge therefore cannot obtain summary judgment on
this issue.
The link between Johnson’s duties and interstate commerce is attenuated. The Tenth
Circuit has established that merely handling goods that had traveled in interstate commerce or
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receiving clients who previously lived in other states does not implicate interstate commerce.
Reagor, 501 F. App’x at 810. In Reagor, the Tenth Circuit held that an employee did not engage
in interstate commerce despite handling interstate goods, admitting out-of-state clients, using a
telephone for work, and securing out-of-state manufactured prescription drugs for her clients. See
id. at 809.
The Tenth Circuit held that “[e]ven if the goods had traveled in interstate commerce, [the
employee] did not engage in commerce, because the FLSA ‘does not include goods after their
delivery into the actual physical possession of the ultimate consumer.’” Id. at 810. The Tenth
Circuit reasoned that the employee’s local handling of these goods “was too remote to qualify as
engaging in commerce.” Id. Thus, the fact that Johnson assisted with loading and unloading trucks
carrying out-of-state goods does not necessarily trigger individual coverage under the FLSA. See
Guereca v. Cordero, 487 F. Supp. 3d 1138, 1152 (D.N.M. 2020) (holding that handling tools and
supplies manufactured outside of New Mexico does not constitute engagement in interstate
commerce once those items have been delivered to the ultimate consumer).
The Tenth Circuit further clarified that providing housing to clients who previously resided
in other states does not trigger the FLSA because such contact is strictly “local.” Reagor, 501 F.
App’x at 810. In Reagor, the court noted a lack of evidence that out-of-state residents regularly
or recurrently stayed at the hotel. Id. Accordingly, although Johnson interacted with and assisted
clients from other states, his activities remained local; without evidence that he helped transport
these individuals across state lines or that they stayed at Village Lodge on a recurring basis, his
actions lack the necessary link to interstate commerce.
In Sobrinio, the Fifth Circuit held that a motel employee serving as a janitor, security guard,
and driver lacked individual coverage under the FLSA because his duties did not implicate
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interstate commerce. Sobrinio v. Med. Ctr. Visitor’s Lodge, Inc., 474 F.3d 828, 829 (5th Cir. 2007).
Applying the Supreme Court’s “practical test,” the court reasoned that for the FLSA to apply, an
employee’s work must be “so directly and vitally related to the functioning of an instrumentality
or facility of interstate commerce as to be, in practical effect, a part of it.” Id. at 829 (citing Mitchell
v. H.B. Zachry Co., 362 U.S. 310, 324 (1960)). Ultimately, the court characterized the employee’s
tasks as “isolated local activity” falling outside the Act’s scope. Id.
One of the few remaining facts that could support individual coverage for Johnson is his
purchase of out-of-state supplies and equipment, such as shampoo, conditioner, towels, toilet
paper, and bed sheets for Village Lodge. Pl.’s Resp. at 8. However, this claim is subject to two
caveats. First, while Johnson’s response states that he purchased these supplies from out-of-state
vendors, his declaration only indicates that he helped unload them from a truck. See id.; Doc. 33-
1, Pl.’s Decl. ¶ 16. This distinction is critical because purchasing out-of-state goods may trigger
individual coverage under the FLSA, while merely unloading supplies is generally insufficient
under Tenth Circuit precedent. Additionally, Johnson fails to specify how often he purchased these
supplies. This omission is vital since isolated or sporadic activities do not satisfy the requirements
for individual coverage under the FLSA. See Reagor, 501 F.App’x at 809.
Despite these deficiencies, the Court cannot rule out FLSA coverage at this stage,
particularly as Village Lodge’s enterprise coverage remains disputed.
c. Genuine Disputes of Material Fact Exist Regarding Whether Johnson Was an
Employee or an Independent Contractor.
The parties disagree over whether Johnson was an employee or an independent contractor
for purposes of FLSA coverage. Because 29 U.S.C. §§ 206 and 207 mandate minimum wage and
overtime compensation for “employees” only, this distinction determines Johnson’s eligibility for
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overtime pay. The Court concludes that Village Lodge has failed to demonstrate the absence of
material factual disputes regarding Johnon’s status.
Under 29 U.S.C § 203(e)(1), an employee is broadly defined as “any individual employed
by an employer.” To effectuate the broad remedial purposes of FLSA, courts have adopted an
expansive interpretation of employment status. Dole v. Snell, 875 F.2d 802, 804 (10th Cir. 1989).
When determining whether an individual is an employee under the FLSA or an independent
contractor exempt from its coverage, courts are not bound by contractual terminology or common
law definitions. Henderson v. Inter-Chem Coal Co., 41 F.3d 567, 570 (10th Cir. 1994). Instead,
the “economic reality” of the relationship governs, and courts evaluate this status by applying a
six-factor test:
(1) the degree of control exerted by the alleged employer over the worker; (2) the
worker’s opportunity for profit or loss; (3) the worker’s investment in the business;
(4) the permanence of the working relationship; (5) the degree of skill required to
perform the work; and (6) the extent to which the work is an integral part of the
alleged employer’s business.
Baker v. Flint Eng’g & Const. Co., 137 F.3d 1436, 1440 (10th Cir. 1998); see also Acosta v.
Paragon Contractors Corp., 884 F.3d 1225, 1235 (10th Cir. 2018).
No one factor alone is dispositive; instead, courts evaluate the totality of circumstances to
determine the nature of the relationship. Baker, 137 F.3d at 1441.
As the Department of Labor Fact Sheet 13 explains, the goal of the economic realities test
is to determine “if the worker is economically dependent on the employer for work or is instead in
business for themselves.” See Wage & Hour Div., U.S. Dep’t of Lab., Fact Sheet #13: Is a Worker
an Employee or an Independent Contractor (2024), https://www.dol.gov/agencies/whd/fact-
sheets/13-flsa-employment-relationship; see also Bartels v. Birmingham, 332 U.S. 126, 130
(1947); Snell, 875 F.2d at 804–05 (holding that the focal point is “whether the individual is
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economically dependent on the business to which he renders service . . . or is, as a matter of
economic fact, in business for himself”).
Village Lodge contends that Johnson was an independent contractor because he maintained
significant autonomy over his work. See Def.’s SJ Mot. at 2, 7. Specifically, Village Lodge alleges
that Johnson lacked a fixed schedule, chose which tasks to accept, and determined his own hours.
Id. at 2. According to Village Lodge, he was not required to work daily, was never “on call,” and
had no obligation to remain on-site or available between specific tasks. Id. at 7. Furthermore,
Village Lodge alleges that Johnson’s compensation was based on the hours he reported for
particular projects rather than a standard daily rate. Id.
To support this classification, Village Lodge notes that Johnson completed Form 1099 upon
his initial engagement. Def.’s SJ Mot. at 6–8. Moreover, Village Lodge asserts that Johnson
inquired about becoming an employee for Village Lodge in September 2022 but changed his mind
after learning that he would lose control over his work assignments as an employee. Id. at 8.
Village Lodge does not provide any time sheets, pay stubs, or other information regarding the
terms of Johnson’s employment.
Johnson disputes nearly all these assertions. While he acknowledges the lack of a fixed
schedule, he maintains that he was expected to be available at all times. Pl.’s Resp. at 2. Johnson
further alleges that Village Lodge provided all necessary tools and supplies for his duties and
allowed him to make such purchases with a company credit card. Id. at 7. According to Johnson,
he lived on-site and remained available at all hours to assist staff and clients. Id. He also represents
that Village Lodge’s manager, Asia Miner, assigned his daily projects, leaving him with no
discretion to select his own tasks. Id. Finally, Johnson states that he never attended technical
school and performed no tasks requiring specialized, skill-based training. Id.
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The affidavits from Johnson and Asia Miner directly contradict each other. At the summary
judgment stage, the court’s function “is not to weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for trial.” Krueger v. Phillips, 154 F.4th
1164, 1195 (10th Cir. 2025). Therefore, without weighing the credibility of the evidence, the Court
finds that Johnson’s employment status remains a disputed material fact.
d. Genuine Disputes of Material Fact Preclude Summary Judgment on the Elements of
Johnson’s Overtime Claim.
Village Lodge argues that even if the FLSA applies, it is entitled to summary judgment on
the overtime claim because Johnson failed to establish a fixed workweek. In support, Village
Lodge cites 29 C.F.R. § 778.105, which defines a workweek as “a fixed and regularly recurring
period of 168 hours.” Def.’s SJ Mot. at 4. Village Lodge further points to Johnson’s deposition
admission that he did not have a fixed workweek, suggesting that this omission is fatal to the
overtime claim. Doc. 25 at 25, Pl.’s Dep. 15: 6–10.
The Court disagrees with this argument for two reasons. First, although Johnson admitted
during his deposition that he did not begin his workweek on a specific day, his testimony was
unequivocal regarding his constant availability. He clarified that he “never had days off” during
the two-year period in question and was required to remain available at all times. See Doc. 25 at
23–25. It is not dispositive that Village Lodge obtained an admission that Johnson “did not actually
have a workweek” or “did not start [his] workweek on any particular day.”
Second, even if Village Lodge argues that an employee without a fixed workweek cannot
recover overtime, it must still demonstrate that Johnson is not entitled to pay under the company’s
own established workweek structure. Under 29 C.F.R. § 794.138(a), an employee’s workweek is
a “fixed and regularly recurring period of 168 hours–seven consecutive 24-hour periods,” which
may “begin at any day set by the employer.” (emphasis added). The Department of Labor’s Handy
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Reference Guide to the Fair Labor Standards Act similarly notes that a workweek begins on the
day and hour “established by the employer.” (emphasis added). Wage & Hours Div., U.S. Dep’t
of Lab., Handy Reference Guide to the Fair Labor Standards Act (2023),
https://www.dol.gov/agencies/whd/compliance-assistance/handy-reference-guide-flsa.
Therefore, Village Lodge’s reliance on Johnson’s admission that he lacked a fixed
workweek is insufficient for summary judgment, particularly when Johnson clearly meant that he
was required to always be available. Village Lodge fails to show that Johnson would be ineligible
for overtime compensation under its own workweek structure, as it does not provide any timesheets
or pay stubs. As a result, the Court rejects the argument that Johnson’s inability to prove a
workweek entitles Village Lodge to summary judgment on the overtime claim.
Village Lodge further alleges that even if Johnson is a covered employee, he has failed to
prove the following elements of an overtime claim: (1) he had an established workweek; (2) he
worked more than 40 hours in his workweek; and (3) Village Lodge failed to pay overtime
compensation. Def.’s SJ Mot. at 4. In support, manager Asia Miner stated in her affidavit that
Village Lodge “paid every invoice (rather poorly presented time notes often on scraps or torn
pieces of paper) Plaintiff ever presented to Manager Asia Miner.” Id. at 8.
The Court cannot grant summary judgment based on Miner’s assertion that Village Lodge
paid all amounts owed, as the FLSA places the burden of maintaining accurate records on the
employer. See 29 C.F.R. § 516.2. Under 29 C.F.R. § 516.2, “[e]very employer shall maintain and
preserve payroll or other records containing” the specific day and time the workweek begins, the
hours worked each day and week, total overtime premium pay, and total wages paid each period.
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The FLSA also requires an employer to “make, keep, and preserve . . . records of the
persons employed by him and of the wages, hours, and other conditions and practices of
employment.” 29 U.S.C. § 211(c); Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 448 (2016).
The Supreme Court held in Tyson Foods that “when employers violate their statutory duty
to keep proper records, and employees thereby have no way to establish the time spent doing
uncompensated work,” the employee need only present evidence sufficient to show the work
performed “as a matter of just and reasonable inference.” Tyson Foods, 577 U.S. at 456. The
“burden then shifts to the employer to come forward with evidence of the precise amount of work
performed or with evidence to negative the reasonableness of the inference to be drawn from the
employee’s evidence.” Id.; see also Acosta v. Min & Kim, Inc., 919 F.3d 361, 365 (6th Cir. 2019).
At this stage, the Court finds that Johnson has presented sufficient evidence to support a
just and reasonable inference regarding his uncompensated work. The burden shifts to Village
Lodge to provide evidence of the precise amount of work performed or to otherwise dispute the
reasonableness of that inference.
Specifically, Johnson provides screenshots of messages between him and Asia Miner,
showing that Miner directed him to perform tasks at various times throughout the day. See Doc.
33-1 at 6–24. Johnson also presents handwritten records and logs of his working hours. See id. at
25–59. While Johnson’s records are admittedly cursory and occasionally difficult to read, they are
sufficient to meet the just and reasonable inference threshold. For example, the Court’s calculation
of the hours Johnson worked during a one-week period indicates that his total time exceeded 40
hours. The following table reconstructs Johnsons’ handwritten records for clarity:
Case 2:23-cv-01063-SMD-KRS Document 53 Filed 03/26/26 Page 16 of 19

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Sun Mon Tue Wed Thurs Fri Sat
4-22
10:30-6:00
8:00-12:00
4-23
6:00-12:00
4-24 4-25
12:00-5:00
8:30-12:00
4-26
11:00-3:00
5:00-1:00
4-27
6:00-1:00
3:00-10:00
11:00-4:00
4-28
11:00-6:00
8:00-3:00
4-29
8:30-1:00
3:00-1:00
4-30
5-1
10:00-6:00
5-2
7:00-11:00
1:00-4:00
6:00-3:00
5-3
3:00-1:00
3:00-7:00
5-4
8:00-12:00
2:00-12:30
See Doc. 33-1 at 27.
Although Village Lodge characterizes Johnson’s claim of being on call for 30 consecutive
months as “absurd,” it fails to produce its own records to rebut this testimony. See Def.’s Reply at
7. The Court acknowledges Village Lodge’s argument that it had no record-keeping obligation
because it classified Johnson as an independent contractor. However, as previously discussed,
because Village Lodge has not demonstrated the absence of material factual disputes regarding
Johnson’s status, it remains subject to the burden-shifting framework. Village Lodge cannot
dispute the accuracy of Johnson’s logs without producing its own records.
Because genuine disputes of material facts remain regarding Village Lodge’s status as a
covered enterprise and Johnson’s status as a covered employee, and because an undefined
workweek does not foreclose an overtime claim, the Court denies summary judgment on these
issues. To obtain summary judgment, Village Lodge must alternatively show that Johnson was
properly compensated for all hours worked, and Village Lodge failed to carry this burden. A mere
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assertion by Miner that Village Lodge paid all invoices is insufficient. The Court therefore denies
Village Lodge’s motion for summary judgment on the overtime claim.
IV. Plaintiff Establishes a Prima Facie Case of Retaliation, Which Defendant Fails to
Rebut.
Village Lodge also seeks to dismiss Johnson’s retaliation claim, arguing that he was not an
employee and therefore lacks FLSA’s protection. See Def.’s SJ Mot. at 2. However, the Court has
determined that Village Lodge failed to establish Johnson’s classification as an independent
contractor as a matter of law. Based on the current record, summary judgment cannot be granted
on this basis.
The Court finds that Johnson has established a prima facie case of retaliation. Village
Lodge has failed to rebut this showing with a legitimate, non-retaliatory reason for the adverse
employment action. See Pacheco v. Whiting Farms, Inc., 365 F.3d 1199, 1206 (10th Cir. 2004).
Accordingly, the Court denies Village Lodge’s motion for summary judgment on the retaliation
claim.
FLSA retaliation claims are analyzed under the three-pronged McDonnell Douglas burden-
shifting framework. Richmond v. ONEOK, Inc., 120 F.3d 205, 208 (10th Cir. 1997). To establish
a prima facie case of retaliation, an employee must demonstrate: (1) he engaged in protected
activity under FLSA; (2) he suffered an adverse employment action contemporaneous with or
subsequent to the protected activity; and (3) a causal connection between the protected activity
and the adverse employment action. Conner v. Schnuck Mkt., Inc., 121 F.3d 1390, 1394 (10th Cir.
1997).
The Tenth Circuit has clearly established that an employee’s request for overtime wages is
a protected activity in the form of an unofficial assertion of FLSA rights. Id.; see also Pacheco,
365 F.3d at 1206. A causal connection can be demonstrated circumstantially through evidence that
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justifies an inference of retaliatory motive, such as a “very close” temporal proximity between the
protected activity and adverse employment action. Anderson v. Coors Brewing Co., 181 F.3d 1171,
1179 (10th Cir.1999); Pacheco, 365 F.3d at 1206.
For the instant motion, Johnson alleges, and Village Lodge does not dispute, that Johnson
was terminated just two days after objecting to Village Lodge’s pay practice. See Pl.’s Resp. at 4;
Def.’s Reply at 6–7. This close temporal proximity supports the causation element of his claim.
Additionally, Johnson satisfies the remaining prima facie requirements because he engaged in the
protected FLSA activity by requesting overtime pay and subsequently suffered an adverse
employment action through his termination.
Village Lodge fails to provide a legitimate, non-retaliatory reason for the termination,
relying instead on its argument that Johnson was never an employee and the conclusory statement
that the termination was not retaliatory. Because Village Lodge has not demonstrated that
Johnson’s status as an independent contractor is undisputed, nor offered a valid justification for
his termination, the Court denies the motion for summary judgment on the retaliation claim.
CONCLUSION
IT IS THEREFORE ORDERED BY THE COURT that Defendant’s motion for
summary judgment is DENIED.
____________________________________
SARAH M. DAVENPORT
UNITED STATES DISTRICT JUDGE
Case 2:23-cv-01063-SMD-KRS Document 53 Filed 03/26/26 Page 19 of 19