PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND INCORPORATED MEMORANDUM OF LAW

26 Mar 2015

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND INCORPORATED MEMORANDUM OF LAW

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND INCORPORATED MEMORANDUM OF LAW

            Plaintiff, Wesley Hooten, moves for Summary Judgment against Defendants, Southeastern Towers, LLC and Nick A. Vespa, for unpaid overtime due under the Fair Labor Standards Act (“FLSA”) and files this motion and memorandum in support:

  1. Statement of Facts

            Plaintiff was employed by Defendant Southeastern Towers from September 22, 2013 till November 19, 2014.[1] Defendants admit Plaintiff was eligible for overtime pay, but instead elected to pay him a flat rate of $920 per week.[2]

Defendants did not keep accurate records of Plaintiff’s time worked.[3] When asked how much time Plaintiff worked per week, Defendant responded in discovery answers that its records “voluminous” and it could not determine “how many hours per week Plaintiff actually worked while he was employed by Southeaster Towers.”[4] Plaintiff has thus estimated the amount of overtime hours worked and seeks payment of that time in this action as 237.5 hours (amounting to $8,193.75).[5]

  1. Argument

In this case, Plaintiff claims that Defendants did not pay him the overtime pay required by the federal Fair Labor Standards Act, also known as the FLSA. To succeed on his claim against Defendants, Plaintiff must prove each of the following facts by a preponderance of the evidence[6]:

First:       Plaintiff was an employee of Defendants and was engaged in commerce or in the production of goods for commerce or employed by an enterprise engaged in commerce or in the production of goods for commerce; and

Second:   Defendants failed to pay Plaintiff the overtime pay required by law.

  1. The First Element

For the first element, Plaintiff must prove by a preponderance of the evidence that he was an employee engaged in commerce or in the production of goods for commerce/employed by an enterprise engaged in commerce or in the production of goods for commerce.[7]  As discussed below, this element is not in dispute.

  1. Commerce Defined  

The term “commerce” has a very broad meaning and includes any trade, transportation, transmission, or communication between any place within a state and any place outside that state.[8] Plaintiff was engaged in the “production of goods” if he was employed in producing, manufacturing, mining, handling, or transporting goods, or in any other manner worked on goods or any closely related process or occupation directly essential to the production of goods.[9] An “enterprise engaged in commerce or the production of goods for commerce” means a business that has employees engaged in commerce or the production of commercial goods for commerce and has annual gross sales of at least $500,000.[10]

  1. Defendant Admits the First Element

In response to the Request for admissions[11], the Defendant Southeaster Towers, LLC admitted all of the following:

  1. Plaintiff was eligible to receive overtime pay during the time he worked for Southeastern Towers, LLC.
  2. Plaintiff was an employee who performed duties which are closely related and directly essential to such interstate activities and is thus covered by the FLSA.
  3. Southeastern Towers, LLC in 2013 had an annual dollar volume of sales or business is $500,000 or more and had at least two employees engaged in commerce or in the production of goods for commerce or handling such goods.
  4. Southeastern Towers, LLC was Plaintiff’s employer as defined by 29 U.S.C. § 203(d).
  5. Southeastern Towers, LLC is an enterprise as defined by 29 U.S.C. § 203(r).
  6. Southeastern Towers, LLC is an enterprise engaged in commerce as defined by 29 U.S.C. § 203(s).

Based upon Defendant’s admissions, there is no dispute that Plaintiff was an employee of Defendant and was engaged in commerce and was employed by an enterprise engaged in commerce.  Thus, summary judgment should be entered in Plaintiff’s favor as to the first element.

  1. The Second Element

The FLSA requires an employer to pay an employee at least one-and-one-half times the employee’s “regular rate” for time worked over 40 hours in a workweek.[12] Put another way, if an employee works more than 40 hours in one workweek, the employer must pay the employee the overtime rate of 1.5 times the regular rate for all time worked after the first 40 hours. This is commonly known as time-and-a-half pay for overtime work.[13]

The employee’s regular rate for one week is the basis for calculating any overtime pay due to the employee.[14] The “regular rate” for a week is determined by dividing the total wages paid for the week by 40/the total number of hours the weekly salary was intended to compensate.[15] To calculate how much overtime pay was owed to Plaintiff for a certain week, subtract 40 from the total number of hours he worked and multiply the difference by the overtime rate.[16]

The amount of damages is the difference between the amount Plaintiff should have been paid and the amount he was actually paid.[17] Plaintiff is entitled to recover lost wages from the date of your verdict back to no more than two years before he filed this lawsuit on October 29, 2014 – unless the employer either knew or showed reckless disregard for whether the FLSA prohibited its conduct.[18]  Here, Plaintiff seeks no wages due past September 2013 and therefore the issue of reckless disregard is moot.

  1. Time Worked

The law requires an employer to keep records of how many hours its  employees work and the amount they are paid.[19] In this case, Defendants failed to keep and maintain adequate records of Plaintiff’s hours and pay. Thus, Plaintiff may recover a reasonable estimation of the amount of his damages.[20]

  1. Plaintiff’s Hours Worked

Plaintiff has produced a reasonable estimation of the amount and extent of the work for which he seeks pay.  Attached hereto are Plaintiff’s interrogatory answers, establishing that he worked the following overtime hours without overtime pay:[21]

month/year week of: hours/wk hours over 40
09/2013
  Sep 16 50 10
  Sep 23 50 10
10/2013
  Oct 08 50 10
12/2013
  Dec 03 50 10
04/2014
  Apr 22 50 10
  Apr 28 50 10
05/2014
  May 26 50 10
06/2014
  Jun 09 52 12
  Jun 16 50 10
  Jun 23 50 10
  Jun 30 45 5
07/2014
  Jul 07 45 5
  Jul 14 45 5
  Jul 21 45 5
  Jul 28 56 16
08/2014
  Aug 04 56 16
  Aug 11 76 36
  Aug 18 44.5 4.5
  Aug 25 55.5 15.5
09/2014
  Sep 01 47.5 7.5
  Sep 08 51 11
  Sep 15 49 9
  237.5

 

Plaintiff was paid a flat rate of $920 per week.[22]  Thus, Plaintiff’s hourly regular rate was $23 per hour (920.00/week / 40 hrs = 23.00). His overtime rate was thus $34.50 per hour (23.00/hr * 1.5= 34.50/hr.).  Because he worked 237.50 of overtime as detailed in the chart above, he is owed $8,193.75 (without accounting for liquidated damages, as discussed below).

  1. Defendants’ Inadequate Records

In answer to interrogatory number 23, Defendant stated that it is “reviewing voluminous company records to determine how many hours per week Plaintiff actually worked while he was employed by Southeaster Towers, but has not yet completed this review.” As of this date, no additional information or supplementation has been provided.  Clearly, the Defendants have no or inadequate records as to the amount of time Plaintiff worked.

When the employer has violated its duty to keep adequate records, the employee satisfies this burden by producing “sufficient evidence to prove that he performed work for which he was improperly compensated' andsufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.'”[23] If the employer does not come forward with evidence of the precise amount of work performed or other evidence to negate the plaintiff’s prima facie case, the “court may award approximate damages based on the employee’s evidence.”[24]

Here, the only accounting of Plaintiff’s time worked is his own. Moreover, the hours claimed are reasonable and not at all exaggerated over the 13 months period he worked; the overtime claimed only amounts to 17 percent of his earnings ($920 per week over 13 months equals $47,840; $8,193.75/$47,840 equals 17%). Defendant cannot come forward with the precise amount of time Plaintiff worked, nor can it negate that claimed by Plaintiff.  Because Plaintiff’s reasonable estimates are admissible and will support judgment in his favor, judgment based on those estimates is proper.[25]

  1.        Liquidated Damages

“Any employer who violates [29 U.S.C. § 207] shall be liable to the employee … in the amount of … [her] unpaid overtime compensation … and in an additional equal amount as liquidated damages.”[26] A court may, however, award no liquidated damages “if the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of the [FLSA].”[27] The determination of whether an employer acted in good faith and had reasonable grounds for believing its act or omission was not a violation of the FLSA has both a subjective and objective component.[28] Subjective good faith means the employer has an honest intention to ascertain what the FLSA requires and to act in accordance with it.[29] Objective good faith means the employer had reasonable grounds for believing its conduct comported with the FLSA.[30] In addition, “[g]ood faith requires some duty to investigate potential liability under FLSA.”[31] An employer who knew or had reason to know that the FLSA applied cannot establish good faith as a defense.[32]

Here, Plaintiff is entitled to liquidated damages in the amount of $16,387.50 (8,193.75 * 2).   As discussed supra, Defendant readily admitted that it was subject to the FLSA and that Plaintiff is due overtime if worked. Despite that clear fact, Defendant failed to keep time records documenting Plaintiff’s overtime work.   Moreover, Defendant admitted the following in response to Plaintiff’s requests for admission:

  1. Southeastern Towers, LLC did not rely upon legal advice in paying Plaintiff.
  2. Southeastern Towers, LLC did not rely upon any Department of Labor opinion letter in paying Plaintiff.
  3. Southeastern Towers, LLC did not rely upon any case law in paying Plaintiff.
  4. Southeastern Towers, LLC did not rely upon any regulation in paying Plaintiff.

Therefore, the Defendant had no reasonable grounds to believe it was complying with the FLSA and cannot prove a good faith defense.  It admits that it failed to keep records showing Plaintiff’s hours although it knew Plaintiff was eligible for overtime pay. As such, an award of liquidated damages is proper raising the total amount due in overtime to $16,387.50.

  1.         Individual Liability

 

“The FLSA defines an employer to “include any person acting directly or indirectly in the interest of an employer in relation to an employee.”[33] Courts have long held that officers and managers are “employers” within the meaning of the FLSA when they:  (i) exercise managerial control over a business or run the day-to-day operations of a covered enterprise; or (ii) directly participate in hiring, firing, employee compensation decisions, or other work issues.[34]  Moreover, the Eleventh Circuit held that liability under the FLSA will attach to an individual officer or manager of a company when that person has operational control of “significant aspects” of the business’ day-to-day functions, which includes financial management.[35]

In the instant case, Defendant Vespa “handled [Plaintiff’s] weekly work assignments” and “tracked [Plaintiff’s] projects”.[36] He negotiated Plaintiff’s pay with him.[37] Notably, co-defendant Southeaster Towers, LLC’s corporate headquarters is located at Mr. Vespa’s house.[38] Moreover, Defendant admitted the following requests for admissions:

  1. Nick Vespa is a corporate officer of Defendant Southeastern Towers, LLC.
  2. Nick Vespa was the supervisor of Plaintiff.[39]

 

The fact that Mr. Vespa supervised Plaintiff was also admitted in Defendant’s answer to Plaintiff’s 21st Interrogatory.

Given the above undisputed facts, there is no question that Defendant Vespa both (i) exercised managerial control over Southeastern Towner, LLC and (ii) directly participated in hiring, firing, employee compensation decisions, or other work issues of Plaintiff. Thus, because Plaintiff need only demonstrate that Vespa either exercise managerial control or participate in hiring, firing, employee compensation decisions, or other work issues of Plaintiff, it is undisputed that Vespa is an employer as that term is defined by the FLSA.  He runs the business from his house, directly supervised Plaintiff, was responsible for setting Plaintiff’s pay, is a corporate officer, handled Plaintiff’s work assignments and tracked Plaintiff’s work on projects. As an employer, Defendant Vespa is liable under the FLSA for unpaid overtime to Plaintiff.

WHEREFORE, Plaintiff respectfully requests judgment in his favor against both Defendants in the sum of $16,387.50, plus costs and attorneys’ fees to be determined at a later date.[40]

[1] See Defendant’s answer to Plaintiff’s 7th Interrogatory; attached hereto as Exhibit A.

[2] Id.; Defendant’s Answers to Plaintiff’s 6th and 23rd Interrogatories.

[3] See Defendant’s answer to Plaintiff’s 23rd Interrogatory (Defendant stated that it is “reviewing voluminous company records to determine how many hours per week Plaintiff actually worked while he was employed by Southeaster Towers, but has not yet completed this review.”).

[4] Id.

[5] See Questions and Reponses to Defendant’s Interrogatories, both attached hereto as Exhibits D and E

[6] See 11th Circuit Standard Jury Instruction 4.14, Fair Labor Standards Act, citing 29 U.S.C. §§ 201 et seq. and annotations thereto.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11]  Requests and Responses both attached hereto as Exhibits B and C.

[12]  See Standard Jury Instruction 4.14, Fair Labor Standards Act, citing 29 U.S.C. §§ 201 et seq. 

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Questions and Reponses are both attached hereto as Exhibits D and E

[22] See Defendant’s Answers to Plaintiff’s 6th and 23rd Interrogatories.

[23] McLaughlin v. Stineco, Inc., 697 F. Supp. 436, 450 (M.D. Fla. 1988) (quoting Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946)).

[24] Id.; see also Etienne v. Inter-County Sec. Corp., 173 F.3d 1372, 1375 (11th Cir. 1999) (“[W]here the employer’s records are inaccurate or inadequate and the employee cannot offer convincing substitutes . . . an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.”).

[25] See Solano v. A Navas Party Production, Inc., Case No. 09-22847-CIV-ALTONAGA/Brown (S.D. Fla., January 12, 2011) (unpublished decision), citing Boyke v. Superior Credit Corp., No. 01-CV-0290, 2006 WL 3833544, at *5 (N.D.N.Y. Dec. 28, 2006) (“[I]t is well established that the employee may testify [regarding an estimate of overtime hours worked] from his or her present memory and recollection alone.” (listing cases)); Reich v. S. New England Telecomm. Corp., 121 F.3d 58, 69-70 (2d Cir.1997) (district court credited evidence offered by the Secretary of Labor that was over-inclusive instead of the under-inclusive evidence offered by the employer where the employer kept inadequate records); Reeves v. Int’l Tel. & Tel. Corp., 616 F.2d 1342, 1351-52 (5th Cir. 1980) (trial court applied Anderson in calculating overtime where adequate records were not kept by employer based on “the rough computations of [employee’s] subconscious mind”).

[26] 29 U.S.C. § 216(b).

[27] 29 U.S.C. § 260.

[28] Dybach v. Florida Dep’t of Corrections, 942 F.2d 1562, 1566 (11th Cir.1991).

[29] Id.

[30] Id.

[31] Barcellona v. Tiffany English Pub, Inc., 597 F.2d 464, 469 (5th Cir.1979).

[32] Reeves v. International Tel. & Tel. Corp., 616 F.2d 1342, 1352-53 (5th Cir.1980). See also Friedman v. S. Fla. Psychiatric Assocs., 2005 WL 1540129 (11th Cir.2005) (no good faith where employer read FLSA 20 years prior and thought employee was exempt under prior legislation)(unpublished decision); Spires v. Ben Hill County, 980 F.2d 683, 689 (11th Cir. 1993)(“[L]iquidated damages are mandatory absent a showing of good faith.”); Joiner v. Macon, 814 F.2d 1537, 1539 (11th Cir.1987) (same).

 

[33] 29 U.S.C. §203(d).

[34] See, e.g.Wascura v. Carver, 169 F.3d 683, 686 (11th Cir. 1999).

[35] See Alvarez Perez v. Sanford-Orlando Kennel Club, Inc., 515 F.3d 1150, 1160 (11th Cir. 2008) (stating that “[t]he 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” and to be so liable, the officer “must either be involved in the day-to-day operation or have some direct responsibility for the supervision of the employee”).

[36] See Defendant’s answer to Plaintiff’s 1st interrogatory.

[37] See Defendant’s answer to Plaintiff’s 13th interrogatory.

[38] See Defendant’s answer to Plaintiff’s 5th interrogatory.

[39] Along with another individual listed as Defendant’s president, Defendant claims.

[40] In an action under the FLSA, “[t]he court . . . shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow reasonable attorney’s fee to be paid by the defendant, and costs of the action.” 29 U.S.C. § 216(b). Payment of attorney’s fees and cost to employees who prevail on FLSA claims is mandatory. See Id.

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PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND INCORPORATED MEMORANDUM OF LAW
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PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND INCORPORATED MEMORANDUM OF LAW
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PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND INCORPORATED MEMORANDUM OF LAW
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Massey & Duffy has existed since October, 2003. We focus exclusively on civil litigation, including wrongful death, overtime cases, car and trucking accidents, insurance claims, breach of contract, general employment law, and serious personal injury lawsuits.