Motion for Summary Judgment Filed by a Plaintiff in Federal Court

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION

PETER SASSANO, CASE NO.: 1:17-cv-20-MW-GRJ

Plaintiff,

v.

DANIELA MYLOT

and THE SANDWICH DEPOT

CAFÉ, LLC,

Defendants.

____________________________________/

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

AND MEMORANDUM OF LAW

Plaintiff, Peter Sassano, moves for Summary Judgment against both Defendants, Daniela Mylot and The Sandwich Depot Café, LLC and states as follows[1]:

STATEMENT OF FACTS

1. Plaintiff filed this action under the Fair Labor Standards Act alleging that Defendants failed to provide him with proper overtime pay and failed to pay him the Federal minimum wage. See Doc. 10, Frist Amended Complaint; Doc. 13, Defendants’ Amended Answer Paragraph 1.

2. Defendants admit that Plaintiff was a non-exempt cook employed by Defendants in Alachua County, Florida. See Doc. 13, Defendants’ Amended Answer Paragraph 2.

3. Daniela Mylot exercised managerial control over of The Sandwich Depot Café, LLC and ran its day-to-day operations. Alternatively, or in addition thereto, she directly participated in hiring, firing, employee compensation decisions, and other work issues of Plaintiff. See Doc. 13, Defendants’ Amended Answer Paragraph 2.

4. Defendants are within the jurisdiction of this Court. See 
 Doc. 13, Defendants’ Amended Answer Paragraph 4.

5. This Court has jurisdiction over Plaintiff’s claims pursuant to 28 U.S.C. §1337 and the FLSA and the authority to grant declaratory relief under the FLSA pursuant to 28 U.S.C. § 2201et seq. See Doc. 13, Defendants’ Amended Answer Paragraph 7.

6. Defendants regularly employed two or more employees for the relevant time period that handled goods or materials that travelled through interstate commerce, or used instrumentalities of interstate commerce, thus making Defendants’ business an enterprise covered under the Fair Labor Standards Act. See Doc. 13, Defendants’ Amended Answer Paragraph 8.

7. Defendants have been, at all times material, an enterprise engaged in interstate commerce in the course of their marketing, preparation, cooking, service, and sale of foodstuffs, produce, meats, beverages, and products that have moved through interstate commerce. Defendants cooked, prepared, and stored perishables and beverages while using machinery, appliances, electronic payment processing services and equipment, vehicles, ovens, stoves, fuels, cooking oils, refrigeration, goods and materials that also have moved through interstate commerce. See Doc. 13, Defendants’ Amended Answer Paragraph 9.

8. Furthermore, Defendants obtain, exchange, and send/receive funds to and from outside of the State of Florida, use telephonic transmissions going outside of the State of Florida to conduct business, and transmit electronic information through computers, the internet, via email, and otherwise outside of the State of Florida. See Doc. 13, Defendants’ Amended Answer Paragraph 10.

9. Plaintiff’s work for Defendants was actually in or so closely related to the movement of commerce while he worked for Defendants that the Fair Labor Standards Act applies to Plaintiff’s work for Defendants in the course of his handling and preparing food, produce, spices, oils, poultry, and meats that traveled through interstate commerce while also utilizing ovens, cooking utensils, cooking supplies, knives, equipment, and equipment that also traveled through interstate commerce. See Doc. 13, Defendants’ Amended Answer Paragraph 10.

10. Plaintiff was entitled to overtime pay under the Fair Labor Standards Act. See Doc. 13, Defendants’ Answer Paragraph 18.

11. Towards the end of his employment for the pay period of October 31, 2016 to November 13, 2016, Defendants deducted from Plaintiff’s wages charges such as ones for shirts, a drug screen, and a “chicken case” that caused his hourly rate to be less than $7.25 for that pay period. See Doc. 13, Defendants’ Amended Answer Paragraph 24.

12. Defendants violated the FLSA by not paying Plaintiff at least the federal minimum wages. See Doc. 13, Defendants’ Amended Answer Paragraph 27.

13. Defendants owe to Plaintiff the following, sans attorneys’ fees, declaratory relief, costs and liquidated damages: $19.48 in overtime wages (re-calculated 7.64 hours of overtime, based on the different between a regular rate of $9.75 rather than $8.05); and

$142.38 in minimum wages (based on deductions of $40 drug screening, $80 uniform, and $22.38 case of chicken). See Exhibit A, Defendants’ Responses to Plaintiff’s Interrogatories, Page 3, Answer to Interrogatory Number 6.

ARGUMENT

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. 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. 11th Circuit Jury Instructions, 4.14. The FLSA also requires payment of a Federal minimum wages which is $7.25 per hour effective July 24, 2009. See www.dol.gov/whd/minimumwage.htm.

In this case, Defendants’ Amended Answer at Doc. 13 denied a substantial amount of Plaintiff’s allegations – including Paragraphs 11, 15, 16, 17, 19, 20, 21, 22, 28, 29 and 30. At page 3 of their Amended Answer, Defendants twice pled that they “deny that Plaintiff is entitled to any of the relief requested in the Complaint’s ‘wherefore’ paragraph” – once for Count I and once for Count II. They also pled 3 affirmative defenses. The Wherefore clause of the Amended Answer requests judgment for Defendants, that the Amended Complaint be dismissed with prejudice, and that they be awarded their attorneys’ fees.

Despite the allegations in the Answer, discovery has revealed that Defendant’s denial of these allegations was without factual support. In response to Interrogatory #6, Defendant Mylot (the owner of The Sandwich Depot Café, LLC) swore as follows:

6. How much overtime and back wages do you admit that the Plaintiff is owed?

$19.48 in overtime wages (re-calculated 7.64 hours of overtime, based on the different between a regular rate of $9.75 rather than $8.05); and $142.38 in minimum wages (based on deductions of $40 drug screening, $80 uniform, and $22.38 case of chicken).

Doc. 18-1, Page 3. Thus, the actual facts in this case support judgment be entered against Defendants.

REQUEST FOR RELIEF

Defendants never pled a good faith defense, thus liquidated damages are proper. See 29 U.S.C. § 260. According to Defendant’s answer to Interrogatory Number 6, Plaintiff is due $19.48 in overtime wages and $142.38 in minimum wages. With liquidated damages, this amounts to $323.72 ($19.48 + $142.38, multiplied by 2).

Plaintiff also pled declaratory relief. Doc. 10, Page 7, the Wherefore Clause. As such, he respectfully requests a declaration that he was a nonexempt FLSA employee of Defendants and that it required the payment to him of wages thereunder. Such relief has been found proper by other courts such as Barrows v. City of Chattanooga, 944 F.Supp.2d 596 (E.D. Tenn. 2013) and American Fed’n of State, Cnty. & Mun. Emples., AFL-CIO v. Casey, 626 A.2d 683 (Pa. Commw. Ct. 1993). In Barrows, Fire Captain Barrows sued the City of Chattanooga under the FLSA regarding his employee classification and for past unpaid overtime. Following a bench trial, the district court held that the City had been improperly classifying Barrows as an FLSA-exempt employee and that a declaration that Barrows was a non-exempt FLSA employee was appropriate. In Council 13, employees of the State of Pennsylvania sought inter alia a declaration that the FLSA required Pennsylvania to pay wages and salaries that were coming due, despite an anticipated exhaustion of appropriated funds. See id. at 684. The court held that the employees were entitled to the declaration they sought, and that the FLSA required payment of wages. See id. at 686.

In suits to recover unpaid overtime wages, the FLSA mandates that the Court “shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant, and costs of the action.” 29 U.S.C. § 216(b). This provision has been interpreted to mean that “fee awards [are] mandatory for prevailing plaintiffs.” Kreager v. Solomon & Flanagan, P.A., 775 F.2d 1541, 1542 (11th Cir. 1985); see also Shelton v. Ervin, 830 F.2d 182, 184 (11th Cir. 1987) (“Section 216 provides for an award of attorney’s fees, as opposed to granting the court discretion in awarding such fees, to the prevailing plaintiff in FLSA cases.”).

As such, Plaintiff also respectfully requests an award of attorneys’ fees and that the Court reserve jurisdiction to determine the amount of both attorneys’ fees and costs. This is particularly appropriate in a case such as this one where the Defendants’ Amended Answer was not pled with reasonable investigation of the facts when compared to the discovery answers of Defendant Mylot. Moreover, the issue of attorneys’ fees regarding Plaintiff’s Motion to Compel heard on May 19, 2017 were reserved and jurisdiction on that issue should also be retained with all other relief the Court deems necessary and proper.

Dated: May 22, 2017

/s/ Michael Massey

Michael Massey

Fla. Bar No. 153680

CERTIFICATE OF LENGTH AND FONT

I HEREBY CERTIFY that this document contains 1572 Words and is in 14 point font.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that I served a true and correct copy of the foregoing on this May 22, 2017 by filing a copy of the same with the Court’s electronic filing system which will send an email to the following:

Eric Lindstrom

FL Bar No. 104778

EGAN, LEV, LINDSTROM & SIWICA, P.A.

Post Office Box 2231 Orlando, Florida 32802

Telephone: (407) 422-1400 Facsimile: (407) 422-3658

/s/ Michael Massey

Michael Massey

Fla. Bar No. 153680

Massey & Duffy, P LLC

855 E. University Ave.

Gainesville, FL 32601

352-505-8900

  1. The Exhibits were filed via Doc. 18.