Mays v. Rubiano, Inc.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

LAFAYETTE DIVISION

ELIZABETH MAYS and ALESSANDRA

MALMQUIST,

Plaintiffs,

v. CAUSE NO. 4:17-CV-48 DRL

RUBIANO, INC. and SHARON RUBIANO,

Defendants.

OPINION & ORDER

Elizabeth Mays and Alessandra Malmquist were “walk-in” exotic dancers at Danzers, an adult

entertainment club owned by Rubiano, Inc. The company’s president, Sharon Rubiano, terminated

these performers for what they allege was protected activity under the Fair Labor Standards Act

(FLSA). They both move for summary judgment on their claims for unpaid wages and retaliation

damages under FLSA. Ms. Mays also moves for summary judgment on her claim under Indiana’s

blacklisting statute. The court now grants summary judgment in part.

FACTUAL BACKGROUND

Danzers provides adult entertainment and sells snack food, beer, wine, and liquor purchased

from wholesalers and retailers in Indiana to customers at its Indiana location. Elizabeth Mays and

Alessandra Malmquist were exotic dancers at Danzers.

Danzers has two classifications of exotic dancers: “walk-in” dancers and employee dancers.

Dancers begin in the “walk-in” classification, meaning they are not scheduled to work on specific days,

may work on any day they wish, and may work at other clubs. When they work, they are expected to

work six-hour shifts and fulfill the same roles and follow the same rules as employee dancers. Danzers

has traditionally considered walk-in dancers to be independent contractors. If an adult entertainer

performs satisfactorily as a “walk-in” dancer, they are usually offered the opportunity to work as an

employee on payroll.

Both Ms. Mays and Ms. Malmquist were classified as walk-in dancers. Ms. Mays worked nine

total days at Danzers between January 17, 2017 through February 17, 2017. Ms. Malmquist worked

43 total days1 at Danzers between July 18, 2016 until February 17, 2017, though there was a period

when she didn’t return to work for several months.

Back then, exotic dancers performed to music in one of two ways. On Friday and Saturday

nights, the company hired a local DJ who selected the music to play. The DJ streamed his music

through an online music streaming service, Napster, and YouTube. At all other times, a jukebox played

music. The jukebox stored its music on an online database, which continually updated its music for

customers. Customers could play the music on the jukebox through a mobile application (app). Some

dancers texted their clientele to let them know that they would be working, and some used social

media to advertise their performances.

On February 13, 2017, Ms. Rubiano received a letter from “Your Anonymous Dancers” that

discussed Ms. Rubiano’s alleged misclassification of dancers as independent contractors. In the letter,

the anonymous dancers indicated that Ms. Rubiano misclassified them to avoid either paying the

dancers or allowing the dancers to keep their own money. The letter accused Ms. Rubiano of violating

various state and federal laws regarding payment. It indicated that if Ms. Rubiano didn’t change her

ways, the dancers would sue. Nothing in the record indicates who authored this letter.

During the month she worked as a walk-in dancer, Ms. Mays admitted that she broke the

club’s rules, including chewing gum, drinking on the job, and talking on her phone while on the floor

after being asked to stop. Ms. Rubiano also accused her of being rude to customers and staff and said

1 The parties cite to no evidence in the record for this exact number of days, though Rubiano cites to that

number in their reply brief (see ECF 55 at 3).

she was involved in an incident when a customer complained about her putting a belt around his neck.

Ms. Mays knew breaking the club’s rules could lead to her termination.

Prior to terminating Ms. Mays, Ms. Rubiano ran a background check on her, which included

calling other adult entertainment establishments. Ms. Rubiano also directed her grandson to research

Ms. Mays on Google, and he pulled up approximately ten class action lawsuits in which Ms. Mays had

sued her former employers for alleged violations of her rights. These suits included among others

Mays v. Midnite Dreams, Inc., 915 N.W.2d 71 (Neb. 2018) (FLSA claim) and Mays v. Grand Daddy’s, LLC,

2015 U.S. Dist. LEXIS 91747 (W.D. Wis. July 15, 2015) (same). 2

Ms. Rubiano met with Ms. Mays thereafter and told her she had sued lots of clubs in the past.

She asked her, “what in the world are you doing? That’s crazy.” She expressed concern by saying it

was unbelievable that Ms. Mays would sue that many clubs. She told Ms. Mays to backtrack and think

about what she was doing because filing lawsuits was dangerous and crazy. She warned Ms. Mays

about filing lawsuits because there were people who would hurt people that file lawsuits.

Ms. Rubiano met with Ms. Malmquist and told her that she was interacting with the wrong

person by talking with Ms. Mays. Though Ms. Malmquist told Ms. Rubiano she didn’t know that Ms.

Mays sued clubs, Ms. Rubiano stated that Ms. Malmquist started talking to the wrong person and

would be fired for affiliating with Ms. Mays. She told Ms. Malmquist she could get hurt if she tried to

sue the wrong club, which she interpreted as a threat. Ms. Malmquist says she was terminated because

she was seen talking to Ms. Mays and because the company didn’t want Ms. Malmquist to help Ms.

Mays with a case. Ms. Rubiano says she fired her for being on social media drinking with a minor.

On June 7, 2017, several months after both dancers were terminated, Ms. Mays and Ms.

Malmquist sued Rubiano, Inc. and Ms. Rubiano, alleging wage violations under FLSA, retaliation, and

2 The court takes judicial notice of the existence and nature of these lawsuits. Fed. R. Evid. 201(b)(2); see

Consolidation Coal Co. v. United Mine Workers of Am., 213 F.3d 404, 407 (7th Cir. 2000) (court can take judicial

notice of judicial decisions).

blacklisting. They also moved to conditionally certify a class action under FLSA. Rubiano, Inc. and

Ms. Rubiano both oppose conditional certification and move for summary judgment on all claims.

The court held oral argument after the case’s recent reassignment to this presiding judge.

STANDARD

The court addresses summary judgment first because a ruling there may obviate conditional

certification given the status of this case. Summary judgment is warranted when “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). The non-moving party must present the court with evidence on

which a reasonable jury could rely to find in her favor. Goodman v. Nat’l Sec. Agency, Inc., 621 F.3d 651,

654 (7th Cir. 2010). The court must construe all facts in the light most favorable to the non-moving

party, view all reasonable inferences in that party’s favor, Bellaver v. Quanex Corp., 200 F.3d 485, 491-

92 (7th Cir. 2000), and avoid “the temptation to decide which party’s version of the facts is more likely

true.” Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003).

In performing its review, the court “is not to sift through the evidence, pondering the nuances

and inconsistencies, and decide whom to believe.” Waldridge v. Am. Heochst Corp., 24 F.3d 918, 920 (7th

Cir. 1994). Nor is the court “obliged to research and construct legal arguments for parties.” Nelson v.

Napolitano, 657 F.3d 586, 590 (7th Cir. 2011). Instead, the “court has one task and one task only: to

decide, based on the evidence of record, whether there is any material dispute of fact that requires a

trial.” Id. The court must grant a summary judgment motion when no such genuine factual issue—a

triable issue—exists under the law. Luster v. Ill. Dep’t of Corrs., 652 F.3d 726, 731 (7th Cir. 2011).

ANALYSIS

A. The Dancers Cannot Recover Under FLSA.

FLSA mandates “[e]very employer [to] pay to each of his employees who in any workweek is

engaged in commerce or in the production of goods for commerce, or is employed in an enterprise

engaged in commerce or in the production of goods for commerce, wages” specified by statute. 29

U.S.C. § 206(a). “Commerce” is defined as “trade, commerce, transportation, transmission, or

communication among the several States or between any State and any place outside thereof.” 29

U.S.C. § 203(b). FLSA has two grounds for coverage: individual and enterprise. See Tony & Susan

Alamo Found. v. Sec’y of Lab., 471 U.S. 290, 295 n.8 (1985). If neither is met, FLSA doesn’t apply. Id.

1. These Two Dancers Were Employed by Rubiano, Inc.

For FLSA to apply, a plaintiff must be an “employee.” 29 U.S.C. § 206(a). An employee is one

who, considering the “economic reality of the working relationship” under the totality of the

circumstances, is “dependent upon the business to which they render service.” Simpkins v. DuPage

Hous. Auth., 893 F.3d 962, 964 (7th Cir. 2018) (citing Sec’y of Lab. V. Lauritzen, 835 F.2d 1529, 1534

(7th Cir. 1987)). The court considers the following list of non-dispositive factors: (1) the nature and

degree of the alleged employer’s control as to the manner in which work is performed; (2) the alleged

employee’s opportunity for profit or loss depending upon her managerial skill; (3) the alleged

employee’s investment in equipment or materials required for her task; (4) whether the service

rendered requires a special skill; (5) the degree of permanency and duration of the working

relationship; and (6) the extent to which the service rendered is an integral part of the employer’s

business. Lauritzen, 835 F.2d at 1534.

Here, the economic reality of Ms. Mays’ and Ms. Malmquist’s working relationship with

Rubiano, Inc. made them employees as opposed to independent contractors. The first factor weighs

in favor of employment because Ms. Mays and Ms. Malmquist were expected to comply with an

extensive list of rules while working that go beyond what is normally asked of an independent

contractor, though these two performers also had the freedom to select the days they worked shifts

(See ECF 46-12 (rules and regulations of Danzers Showclub); ECF 46-14 (note regarding wearing heels

on black chairs); ECF 46-15 (additional rules for dancers); ECF 46-16 (note regarding prohibition of

working on escort websites); ECF 46-17 (another rules note)). The company was primarily responsible

for drawing customers to the club based on its managerial skill; and it controlled advertising, service

location, business hours, facility maintenance, aesthetics, food, and beverages.

That said, given that some dancers texted clientele and advertised on social media, and some

customers presumably showed up for particular dancers, this factor isn’t entirely one-sided. As it

worked, the dancers shared a role in drawing customers to the institution. The company expended

most funds necessary to operate Danzers, and any costs incurred by Ms. Mays or Ms. Malmquist were

minor or incidental, such as the cost for costumes or tipping employees. The parties concede that

exotic dancing doesn’t require any special skills, supporting employment. The short duration of the

working relationship here supports a finding of independent contractor status. Lastly, exotic dancers

are the essential ingredient for Danzers’ business model, though the court won’t downplay the

importance of alcohol and food in drawing certain customers to the club.

In sum, though some factors weigh in favor of independent contractor status, the economic

reality of the relationship here is one of employer-employee. In making this finding, the court joins a

growing chorus of courts that have concluded likewise. See, e.g., Gilbo v. Agment, LLC, 831 F. Appx.

772, 778 (6th Cir. 2020); Verma v. 3001 Castor, Inc., 937 F.3d 221, 232 (3d Cir. 2019); McFeeley v. Jackson

St. Ent., LLC, 825 F.3d 235, 242 (4th Cir. 2016); Reich v. Circle C. Invs., Inc., 998 F.2d 324, 329 (5th Cir.

1993); Hart v. Rick’s Cabaret Intern., Inc., 967 F. Supp.2d 901, 922 (S.D.N.Y. 2013); Clincy v. Galardi S.

Enters., Inc., 808 F. Supp.2d 1326, 1350 (N.D. Ga. 2011); Thompson v. Linda & A., Inc., 779 F. Supp.2d

139, 151 (D.D.C. 2011); Morse v. Mer Corp., 2010 U.S. Dist. LEXIS 55636, 18 (S.D. Ind. June 4, 2010)

(applying the Lauritzen factors); Harrell v. Diamond A Ent., 992 F. Supp. 1343, 1353-54 (M.D. Fla. 1997).

2. These Dancers Aren’t Individually Covered Under FLSA.

Individual coverage occurs when an employee “engage[s] in commerce or in the production

of goods for commerce.” See 29 U.S.C. § 206(a). The court looks only to the acts of the employee, not

the employer. 29 U.S.C. § 206(a); Mitchell v. Lublin, McGaughy & Assocs., 358 U.S. 207, 211 (1959). The

employee must be engaged in commerce, see 29 U.S.C. § 206(a); it isn’t enough that her activities merely

affect commerce. Mitchell, 358 U.S. at 211; McLeod v. Threlkeld, 319 U.S. 491, 497 (1943). For an

employee’s work to be engaged in commerce, her 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, rather than isolated local activity.” Mitchell v. C.W. Vollmer & Co., 349 U.S. 427, 429 (1955). The

employee carries the burden here. D.A. Schulte, Inc. v. Gangi, 328 U.S. 108, 120 (1946).

There are two ways for individual coverage to attach: the employee must either be “engaged

in commerce” itself, or she must engage “in the production of goods for commerce.” 29 U.S.C.

§ 206(a). The second method is characterized by activities such “as repairing and maintaining interstate

roads, railroads, and telephone lines,” Joles v. Johnson Cnty. Youth Serv. Bureau, Inc., 885 F. Supp. 1169,

1178 (S.D. Ind. 1995), and neither Ms. Mays nor Ms. Malmquist argue this. They instead say their

work falls under the first classification, satisfied by the “regular and recurrent use of interstate

telephone, telegraph, mails, or travel.” Id.

The internet is an instrumentality of interstate commerce, United States v. Chaparro, 956 F.3d

462, 470 (7th Cir. 2020), and these performers cite to it as the basis for individual coverage here. The

use must be “regular and recurr[ent].” 29 C.F.R. § 776.3; Shoemaker v. Lake Arbutus Pavilion, LLC, 115

F. Supp.3d 974, 980 (W.D. Wis. 2015). Recurrent means “[o]ccurring or appearing several times;

happening repeatedly,”3 and “regular” means “recurring or taking place repeatedly at (short) uniform

intervals; characterized by repetition of this sort.”4 Ms. Mays and Ms. Malmquist both rely on the

internet streaming music services provided by a DJ and jukebox at Danzers and social media

3 Recurrent, Black’s Law Dictionary (11th ed. 2019).

4 Regular, Oxford English Dictionary,

https://www.oed.com/view/Entry/161414?redirectedFrom=regular#eid (last visited Mar. 8, 2021).

advertising by fellow employees to satisfy this standard, and Ms. Mays additionally relies on her text

messaging of clientele.

Ms. Mays’ text messaging doesn’t satisfy individual coverage on this record, even if viewed in

conjunction with the other instances of her use of interstate commerce. She didn’t specify how often

she texted clients across state lines regarding her performances at Danzers (Tr. 34). She didn’t clarify

whether her text messages were sent to clients arising from her time at Danzers (ECF 46-4 ¶ 20),

which is especially suspect because she had worked at many other adult entertainment institutions and

had only worked at Danzers for nine days, a time in which it would be difficult to accumulate a large

client database. Ms. Mays conceded that she texted on her own initiative, without direction from Ms.

Rubiano (Tr. 27, 33). Ms. Mays says she “regularly” texted clients, but this is a mere legal conclusion

devoid of facts that will withstand summary judgment. See Shoemaker, 115 F. Supp.3d at 980 (plaintiffs’

claim that they “regularly” used the internet and texting, without evidence supporting that statement,

was insufficient to establish individual coverage at summary judgment); see also Hadley v. Du Page Cnty.,

715 F.2d 1238, 1243 (7th Cir. 1983) (Rule 56 “requires affidavits that cite specific concrete facts

establishing the existence of the truth of the matter asserted”). Ms. Mays relies on other employees’

use of texting and social media advertising to establish individual coverage, but again the court looks

only to her use of services—the employee in question. See Mitchell, 358 U.S. at 211.

The performers here properly conceded at oral argument that individual coverage hinged

solely on whether their dancing to music streamed online by the DJ and jukebox qualified as regular

and recurrent use of interstate commerce (Tr. 34).5 Streaming refers to the “transfer of video and

audio material over a network (now esp. the internet) or (less commonly) from a disk as a continuous,

5 The court denies Rubiano’s motion to strike Ms. Mays’ statements regarding Danzers’ streaming services (see

ECF 54 at 14). Ms. Mays says she personally observed Rubiano playing music streamed over the internet

through YouTube (ECF 59 at 10). Moreover, the company admitted that the music was streamed online and

that they subscribed to Napster and Rhapsody for online music streaming (ECF 46-18 at 7).

real-time stream of data.”6 Streaming music over the internet can be use of an instrumentality of

interstate commerce. See Chaparro, 956 F.3d at 470. That said, neither Ms. Mays nor Ms. Malmquist

ever show that they utilized the internet streaming services themselves, let alone that their use was

regular and recurrent. The record only specifies that the DJ streamed music online and that customers

and employees generally streamed music through the jukebox via an online app (ECF 46-4 ¶ 19).

Because neither Ms. Mays nor Ms. Malmquist show that they individually utilized an instrumentality

of interstate commerce, individual coverage doesn’t attach. See Smith v. Nov. Bar N Grill LLC, 441 F.

Supp.3d 830, 838 (D. Ariz. 2020); see also Mitchell, 358 U.S. at 211 (focus on the activities of the

individual employee).

Ms. Mays and Ms. Malmquist counter by arguing that they regularly and recurrently used the

internet because they danced to music that was streamed online, even if others were the ones doing

the streaming. They cite to two out-of-circuit, unpublished opinions that say likewise. See Miller v.

Centerfold Ent. Club, Inc., 2017 U.S. Dist. LEXIS 125945, 8-10 (W.D. Ark. Aug. 9, 2017); Foster v. Gold

& Silver Priv. Club, Inc., 2015 U.S. Dist. LEXIS 165217, 14-16 (W.D. Va. Dec. 8, 2015). These cases

are distinguishable because the performers in those cases chose the music that was streamed online

themselves. Miller, 2017 U.S. Dist. LEXIS 125945 at 9; Foster, 2015 U.S. Dist. LEXIS 165217 at 15-

16. In contrast, neither Ms. Mays nor Ms. Malmquist provide evidence that they downloaded the

operating app, chose the music here, or executed the streaming. To find individual coverage on such

an attenuated showing would effectively bring every employee within FLSA’s purview, which the

Supreme Court has cautioned against, because almost every business today utilizes the internet in

some way. See Maneja v. Waialua Agr. Co., 349 U.S. 254, 272 (1955). Neither Ms. Mays nor Ms.

Malmquist are individually covered under FLSA.

6 Streaming, Oxford English Dictionary,

https://www.oed.com/view/Entry/191407?rskey=zT8lpE&result=2&isAdvanced=false#eid (last visited

Mar. 8, 2021).

3. The Company Isn’t Covered Under FLSA’s Enterprise Coverage.

Enterprise coverage occurs when an employee is “employed in an enterprise engaged in

commerce or in the production of goods for commerce.” 29 U.S.C. § 206(a). For it to apply, the

business must (1) have employees engaged in commerce and (2) have an annual gross volume of sales

made or business done of at least $500,000. 29 U.S.C. § 203(s)(1)(A). Though it implicates factual

questions, the annual revenue requirement is a question of law for the court. Hicks v. Avery Drei, LLC,

654 F.3d 739, 747 (7th Cir. 2011). The court may rely on a business’s income tax returns. See, e.g., Jacoby

v. Schimka Auto Wreckers, Inc., 2010 U.S. Dist. LEXIS 81586, 5 (N.D. Ill. Aug. 11, 2010). Rubiano, Inc.

submitted its income tax returns, which said its gross volume of sales for 2016 and 2017 were

$448,766.50 and $453,548.12 respectively (ECF 46-3). These amounts fall below the threshold.

The tax returns alone aren’t dispositive. Ms. Mays says the tax returns aren’t credible (see ECF

46-4 ¶ 14). She says the company failed to report income it received from walk-in dancers for DJ fees

($12,000-$20,800), house fees ($10,770.84-$36,400.00), and private dance fees ($54,000.00-

$132,000.00) (see ECF 46-4 ¶¶ 7-13). These allegations are mere speculation and don’t defeat summary

judgment. See McCoy v. Harrison, 341 F.3d 600, 604 (7th Cir. 2003).

Ms. Mays only worked at Danzers for nine days. She didn’t manage the club’s finances or

handle its taxes. She has little, if any, understanding of how Rubiano, Inc.’s business works over the

course of an entire year. As a walk-in dancer, she picked the nine days she worked, which presumably

would be days she believed she could make the most money. There is no basis to believe each day of

the year mimics her limited experience at Danzers. Ms. Mays doesn’t back up her allegations with

expert witnesses qualified to opine on the issue, or any real personal knowledge.

Ms. Mays’ math is speculative at best. She bases her allegations on her belief that the company

had at least ten walk-in dancers year-round, but she has no basis for knowing that based on a mere

nine days of work. Her math assumes at times that walk-in dancers would work every single day of

the year, which is conjecture. She estimates the amount of time other dancers would work, but again

her estimates lack personal knowledge. She discusses a “glitch” that Ms. Rubiano admitted to regarding

rental fees (see Tr. 40), but she presents no real evidence as to what the right number for that glitch

should be or whether any other supposed glitches would weigh in favor of a higher annual income.

Ms. Mays conceded at oral argument that she didn’t know what the exact numbers for the business’

annual income should be (Tr. 41). This circuit has discredited similar speculative allegations regarding

gross revenues before. See Hicks, 654 F.3d at 747. On this record, neither Ms. Mays nor Ms. Malmquist

show that Rubiano, Inc. is covered under enterprise coverage. Because neither Ms. Mays nor Ms.

Malmquist are individually covered under FLSA, and because Rubiano, Inc. is not covered under

enterprise coverage, the FLSA wage claims fail. The court enters summary judgment accordingly.

B. The Court Denies Summary Judgment as to Ms. Mays’ Retaliation Claim But Grants Summary

Judgment as to Ms. Malmquist’s Retaliation Claim.

FLSA makes it unlawful for a person “to discharge or in any other manner discriminate against

any employee because such employee has filed any complaint or instituted or caused to be instituted

any proceeding under or related to [FLSA].” 29 U.S.C. § 215(a)(3). This statute applies to persons even

if they are not covered under the wage statute, as here. See Sapperstein v. Hager, 188 F.3d 852, 856 (7th

Cir. 1999). To establish FLSA retaliation liability, a plaintiff must prove that (1) she engaged in

protected activity; (2) suffered an adverse employment action; and (3) that a causal link existed between

the protected expression and adverse action. Kasten v. Saint-Gobain Performance Plastics Corp., 703 F.3d

966, 972 (7th Cir. 2012). Both Ms. Mays and Ms. Malmquist assert FLSA retaliation claims.

1. The Court Denies Summary Judgment on Ms. Mays’ Retaliation Claim.

The issue for Ms. Mays is whether the company retaliated against her after Ms. Rubiano found

out that Ms. Mays had sued previous employers for FLSA violations while she was employed at those

institutions. The parties cite no cases addressing this issue of law—whether a subsequent employer

can retaliate for protected activity that occurred with a former employer.

The court begins with the statute’s plain meaning. Sebelius v. Cloer, 569 U.S. 369, 381 (2013).

FLSA says the employer violates the law if the employer “discharge[s]” an employee “because [the]

employee has filed any complaint or instituted or caused to be instituted any proceeding under or

related to [FLSA].” 29 U.S.C. § 215(a)(3). The statute doesn’t specify when and against whom FLSA

activity must have occurred; instead, it says only that the employee must have engaged in FLSA-

protected activity, and that the employee was discharged for engaging in that protected activity. An

employee who exercises her right to complain about wage violations under FLSA with one employer

and who then suffers an adverse action, for instance termination, at the hands of a subsequent

employer because of her protected activity can sue that subsequent employer for retaliation. One

might think that “retaliation” presupposes an adverse action because of protected activity against one

and the same employer that retaliates, but the statute doesn’t use the word “retaliation” or describe

relief only in these terms. This interpretation comports with the statute’s plain language, not to

mention its broad remedial purpose. See Hoffman-La Roche v. Sperling, 493 U.S. 165, 173 (1989) (“The

broad remedial goal of [FLSA] should be enforced to the full extent of its terms.”).

Ms. Mays engaged in a protected activity by filing FLSA complaints with previous employers.

Ms. Rubiano terminated Ms. Mays, and a jury could reasonably conclude she did so because Ms. Mays

had filed previous FLSA complaints. Before terminating Ms. Mays, the company ran a background

check on her, which included calling adult entertainment institutions that Ms. Mays had sued. The

company says it had determined to fire Ms. Mays because of her violation of rules, but if true then

there was no need to run a background check or to assess her past lawsuits. Ms. Rubiano discovered

approximately ten class action lawsuits Ms. Mays had filed. When the company terminated Ms. Mays,

Ms. Rubiano told her she had sued lots of clubs in the past, saying it was crazy and unbelievable. She

told Ms. Mays to backtrack and think about what she was doing because filing lawsuits was dangerous.

She warned Ms. Mays that there were people out there who hurt people who file lawsuits. Moreover,

Ms. Rubiano told Ms. Malmquist that she was talking to the wrong person (meaning Ms. Mays) and

would be fired for affiliating with her because she had the reputation of suing clubs. Ms. Rubiano told

Ms. Malmquist that she didn’t want her to help Ms. Mays with a case against them by either filing,

participating, or testifying in a lawsuit. The statements create a genuine triable issue regarding the cause

for Ms. Mays’ termination.

Ms. Rubiano argues that she terminated Ms. Mays because Ms. Mays wasn’t meeting her work

expectations. Ms. Mays admitted she broke the club’s rules including chewing gum, drinking on the

job, and talking on her phone while on the floor after being asked to stop, and she knew breaking

these rules could lead to her termination. Ms. Rubiano says Ms. Mays was also rude to customers and

staff and said she was involved in an incident where a customer complained about her putting a belt

around his neck.

While possibly justifying termination, a jury could also reasonably believe these alleged

justifications are pretextual. Ineichen v. Ameritech, 410 F.3d 956, 961 (7th Cir. 2005). To establish pretext,

the plaintiff must “show that the employer’s stated reason for an employment action is dishonest and

that the true reason was based on” protected reasons. McGowan v. Deere & Co., 581 F.3d 575, 581 (7th

Cir. 2009) (Title VII case). If rule violations were the sole basis for termination, then there was no

need to conduct a background search or to discuss the concerns about Ms. Mays’ exercise of rights

protected by law. Given Ms. Rubiano’s background search of Ms. Mays and her subsequent statements

to both Ms. Mays and Ms. Malmquist expressing her displeasure with the class action suits Ms. Mays

had filed, a jury could find Ms. Rubiano’s after-the-fact justifications to be dishonest. See Sanchez v.

Henderson, 188 F.3d 470, 476 (7th Cir. 1999) (plaintiff may also establish pretext with evidence

suggesting retaliation “was the most likely motive for the termination”). The court denies the summary

judgment motion on Ms. Mays’ retaliation claim.

2. The Court Grants Summary Judgment on Ms. Malmquist’s Retaliation Claim.

The issue for Ms. Malmquist is whether the company retaliated against her within the meaning

of FLSA when it terminated her for its mistaken belief that she had engaged in FLSA-protected

activity, when in fact she hadn’t. The court again looks at the statute’s plain meaning. Sebelius, 569 U.S.

at 381. FLSA makes it illegal to “discharge” an “employee because such employee has filed any

complaint or instituted or caused to be instituted any proceeding under or related to [FLSA], or has

testified or is about to testify in any such proceeding, or has served or is about to serve on an industry

committee.” 29 U.S.C. § 215(a)(3). Ms. Malmquist concedes that she hadn’t engaged in FLSA-

protected activity, or that she was about to engage in FLSA-protected activity, as outlined in the statute

when she was terminated. Accordingly, her claim fails under the plain meaning of the statute and this

circuit’s requirement that a plaintiff engage in protected activity for there to be retaliation. See Kasten,

703 F.3d at 972.

Ms. Malmquist advances a “mistaken belief” retaliation theory adopted by Brock v. Richardson,

812 F.2d 121 (3d Cir. 1987). The Third Circuit held that the discharge of an employee based on a

mistaken belief by the employer that the employee had engaged in protected FLSA activity, when in

fact the employee hadn’t, gave rise to a retaliation claim under FLSA. Brock, 812 F.2d at 125. In doing

so, the court relied on the “animating spirit” of FLSA. Id. at 124. The court here declines to follow

Brock because the statute’s plain wording requires some type of FLSA-protected activity, see 29 U.S.C.

§ 215(a)(3), and Ms. Malmquist concedes she hasn’t done that. The court leaves the animating spirit

to Congress. The court grants summary judgment against Ms. Malmquist on her retaliation claim.

C. The Court Grants Summary Judgment Against Ms. Mays on her Blacklisting Claim.

Indiana’s blacklisting law provides that “[a] person who, after having discharged any employee

from his service, prevents the discharged employee from obtaining employment with any other

person” commits a civil infraction and is liable for damages. Ind. Code § 22-5-3-1(a), see also Ind. Code

§ 22-5-3-2; Sch. City of Hammond Dist. v. Rueth, 71 N.E.3d 33, 44-45 (Ind. Ct. App. 2017). Ms. Mays

says Ms. Rubiano blacklisted her by calling other entertainment clubs and telling them to not hire her.

Her claim fails for two reasons. First, she admitted she had no evidence that Ms. Rubiano

talked to any clubs about her and said only that other clubs’ responses suggested that Ms. Rubiano

had spoken with the clubs. Her mere speculation won’t survive summary judgment. McCoy, 341 F.3d

at 604. Second, even if Ms. Rubiano had talked to other clubs about her, there is no evidence that she

said anything false. See Ind. Code §§ 22-5-3-1(a) (“this subsection does not prohibit a person from

informing, in writing, any other person to whom the discharged employee has applied for employment

a truthful statement of the reasons for the discharge”); 22-5-3-1(b) (“An employer that discloses

information about a current or former employee is immune from civil liability for the disclosure and

the consequences proximately caused by the disclosure, unless it is proven by a preponderance of the

evidence that the information disclosed was known to be false at the time the disclosure was made.”).

Ms. Mays’ unsupported statement that it is rare for a dancer to be declined the opportunity to dance

at an adult entertainment establishment doesn’t establish any genuine dispute of material fact for trial.

The jury would be invited merely to speculate. The court grants summary judgment on Ms. Mays’

blacklisting claim.

D. The Court Denies the Performers’ Motion for Conditional Certification.

Ms. Mays and Ms. Malmquist move for conditional certification of a class to recover unpaid

wages under 29 U.S.C. § 216(b) (ECF 24). The court denies this motion as moot because it grants

summary judgment in favor of defendants on the FLSA claim.

CONCLUSION

The court GRANTS IN PART and DENIES IN PART Rubiano, Inc.’s and Sharon Rubiano’s

summary judgment motion (ECF 34), leaving only Elizabeth Mays’ retaliation claim under FLSA

against both Rubiano, Inc. and Ms. Rubiano for trial. The court DENIES AS MOOT Elizabeth Mays’

and Alessandra Malmquist’s motion for conditional certification of a class (ECF 24). The court

DIRECTS the clerk to terminate Alessandra Malmquist as a plaintiff.

SO ORDERED.

March 9, 2021 s/ Damon R. Leichty

Judge, United States District Court