Wells v. Gourmet Services Inc. et al (MAG+)

Filing 143

MEMORANDUM OPINION AND ORDER (with EXHIBIT Proposed Pretrial Order Submitted By the Parties on 6/23/2015): It is ORDERED as follows: 1. Plaintiff's 104 Motion in Limine is DENIED; 2. Defendant's 107 Motion in Limine is DENIED; 3. Defend ants' 108 Second Motion in Limine is DENIED; 4. Defendants' 111 Third Motion in Limine is DENIED; and 5. Plaintiff's 131 Motion for Reconsideration is DENIED; all as further set out in the opinion and order. Signed by Chief Judge William Keith Watkins on 2/10/2016. (Attachments: # 1 Civil Appeals Checklist)(dmn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
LAWRENCE WELLS,
Plaintiff,
v.
GOURMET SERVICES, INC., et al.,
Defendants.

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MEMORANDUM OPINION AND ORDER
In the remaining claim in this case Plaintiff Lawrence Wells contends that
his former employer, Defendant Gourmet Services, Inc., failed to comply with the
overtime pay requirements of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §
201 et seq. Before the court is Plaintiff’s motion for reconsideration of the court’s
July 24, 2015 Order continuing the trial, reopening discovery, and allowing
Defendants to raise FLSA exemption defenses. (Doc. # 131.) See 29 U.S.C. § 213
(setting forth FLSA exemption defenses). Also before the court are Plaintiff’s
motion in limine (Doc. # 104) and Defendants’ motions in limine (Doc. # 107;
Doc. # 108; Doc. # 111).
In his motion for reconsideration, Plaintiff argues that reopening the
discovery deadline, continuing the trial, and allowing Defendants to raise FLSA
exemption defenses unduly prejudiced him.

Plaintiff’s argument regarding

prejudice fails for two reasons. First, Defendants have since been ordered to
reimburse Plaintiff for attorney’s fees and expenses that he incurred because of the
rescheduling of the trial. (Doc. # 136.) Second, both sides were thoroughly
unprepared for trial, and both sides benefitted from the continuance. Continuing
the trial and reopening discovery not only reversed the course of the court’s
previous order granting Plaintiff’s motion to strike the FLSA defenses (Doc. # 90),
but it also effectively abrogated an earlier order (Doc. # 77) denying Plaintiff’s
motion (Doc. # 74) for an extension of time to conduct discovery and file
dispositive motions.
One example of the benefits the continuance provided Plaintiff is
immediately evident from the record. By Order of the Magistrate Judge entered on
September 11, 2014, “all discovery as authorized by Rules 26-37, and 45, Federal
Rules of Civil Procedure” was required to “be completed on or before December
10, 2014.”1 (Doc. # 71 at 1 (emphasis in original).) On January 17, 2015, the
court denied Plaintiff’s motion to extend that deadline. (Doc. # 77.) Nevertheless,
on June 12, 2015,2 Plaintiff provided pretrial disclosures that identified an expert

1

To the extent that the parties appeared to be under the mutual impression that the
Magistrate Judge’s September 11, 2014 Amended Scheduling Order (Doc. # 71) did not apply to
expert witness disclosures pursuant to Rule 26(a)(2), that impression would not have supported
an equitable argument that Plaintiff’s June 2015 disclosures should have been deemed timely.
Absent a stipulation or court order, the deadline to disclose expert testimony and to provide a
written expert report is “at least 90 days before the date set for trial or for the case to be ready for
trial,” Fed. R. Civ. P. 26(a)(2)(D), which, in this case, would have been April 28, 2015.
2
Pursuant to a February 4, 2015, Order, June 12, 2015 was the deadline for pretrial
2

witness, Cynthia Underwood, Esq., CPA. (Doc. # 81 at 1.) Defendants filed a
motion in limine (Doc. # 107) to exclude Underwood’s testimony because the
pretrial disclosure was their first notice that Plaintiff intended to call an expert
witness and because Plaintiff did not provide an expert report in accordance with
Federal Rule of Civil Procedure 26(a)(2) prior to June 12, 2015.
In response to the motion in limine, Plaintiff’s counsel, James E. Long,
affirmatively misrepresented to the court that he emailed the expert report to
Defendants on February 27, 2015, in preparation for mediation, and that he also
gave Defendants a copy of the report at the mediation on March 2, 2015.3 (Doc. #
116.) Evidence submitted by both parties indicates that, on those dates, Plaintiff’s
counsel did provide Defendants’ counsel with a “report” from Underwood showing
the amount of FLSA overtime allegedly owed.4 (Doc. # 116-1 at 1-2; Doc. # 121                                                                                                                                                                                               

witness disclosures pursuant to Federal Rule of Civil Procedure 26(a)(3). (Doc. # 78 at § 5.)
The June 12, 2015 deadline is not pertinent to the deadline for disclosure of expert testimony
pursuant to Federal Rule of Civil Procedure 26(a)(2), and Plaintiff does not argue otherwise.
3

Plaintiff states: “[T]he expert report was timely sent to and received by Defendants
counsel by Email on February 27, 2015 prior to the March 2, 2015 mandatory settlement
conference. See Email dated February 27, 2015 attached as Exhibit A. Another copy of the
expert report was given to Defendants counsel on March 2, 2015, as reflected in the report to the
court on the settlement conference. See Court Report attached as Exhibit B. Defendants have
known about and had a copy of this expert report for months and therefore are not prejudiced by
the testimony of Plaintiff expert and the use of Plaintiff’s Exhibit 12.” (Doc. # 116 at ¶ 1 (sic).)
4

Plaintiff argued that neither his failure to disclose his intent to rely on an expert nor his
failure to provide an expert report until long after the close of discovery posed any prejudice to
Defendants because his oblique disclosures in February and March 2015 should have tipped
Defendants off that he planned to use Underwood as an expert witness. At the same time,
despite the fact that Plaintiff has consistently injected FLSA exemption defenses into this lawsuit
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2.) However, the “expert report” Plaintiff provided in February and March 2015
was not the expert report required by Fed. R. Civ. P. 26(a)(2). Underwood’s Rule
26 expert report is very clearly dated June 4, 2015.5

(Doc. # 116-3.)

The

document Plaintiff provided Defendants in February and March 2015 was a 44page document (see Doc. # 116-1 at 1), while the Rule 26 expert report vastly
exceeds 44 pages. (Doc # 116 at 2.) Further, it is undisputed that, prior to June 12,
2015, Plaintiff did not specifically disclose that he intended to call Underwood as
an expert witness.6
The amount of overtime owed was to be a primary issue at trial because it is
critical to Plaintiff’s proof of damages.

The time records and supporting

documentation Underwood used to create her report spanned two and one-half

from the time he filed the amended complaint that included the FLSA claim, and despite the fact
that Defendants argued the applicability of FLSA exemption at an April 30, 2014 hearing before
the Magistrate Judge (Doc. # 60 at 25-27), Plaintiff contends that he was prejudiced by the
allowance of the FLSA exemption defenses because they were not raised in a timely answer.
Plaintiff appears to be completely unaware of the rank irony of his position: praying that the
court will overlook any prejudice to Defendants and spare him from the natural consequences of
his own technical failure, while simultaneously urging the court to inflict on Defendants the most
drastic consequences available for their similar technical failure.
5

It appears that Plaintiff’s February and March 2015 “disclosures” included some of the
documentation that was ultimately incorporated in the expert report. This does not, however,
substantiate Plaintiff’s representation that he disclosed the expert report on those dates, and it is
not tantamount to a disclosure that Plaintiff intended to call Underwood as an expert witness or
to use her overtime calculations as evidence in this case.
6

Plaintiff’s February 27, 2015 email merely stated: “As promised I have attached below
a copy of the 44 page FLSA Overtime Report prepared by attorney and CPA Cynthia
Underwood for the Wells case. Please review it and let’s discuss it during our face-to-face
settlement conference in Lanett Alabama at the Hampton Inn on Monday March 2, 2015 at 11
a.m. CST (12 noon EST). I look forward to seeing you then.” (Doc. # 116-1 at 1.)
4

years and, according to Plaintiff, were so voluminous that they “could not be filed
as an attachment to [Plaintiff’s] response [to the motion in limine] due to electronic
filing space limitations.” (Doc. # 116 at 2.) In opposing the motion in limine,
Plaintiff submitted legal authority to the effect that a CPA’s expert testimony
regarding the amount of overtime owed should be admitted because it “will assist
the trier of fact in comprehending factual issues beyond the scope of understanding
of the average person.” (Doc. # 116-4 at 4.) The court will not rule on the merits
of the pending motions in limine at this time because the motions were mooted by
the continuance of the trial. However, Plaintiff may rest assured that, if the trial
had not been continued, he would have had to present his case and his voluminous
overtime documentation without the aid of an expert to establish the amount of
overtime pay owed. Thus, Plaintiff’s failure to timely disclose his expert is just
one7 example of why Plaintiff was not prejudiced by the continuance and why a
continuance was necessary to ensure that any trial would not be a pointless
exercise at which both parties were grossly unprepared to present their case to the
jury in an organized, meaningful way.
The FLSA provides for an award of liquidated damages in an amount equal
to the unpaid overtime compensation award. 29 U.S.C. § 216(b). However, 29

7

At the time of the continuance, Plaintiff was also facing a motion in limine to exclude
several fact witnesses that he allegedly identified for the first time in his June 12, 2015 pretrial
disclosures. (Doc. # 108.)
5

U.S.C. § 260 provides that the employer may avoid all or part of the liquidated
damages award by showing that the failure to pay overtime “was in good faith and
that [the employer] had reasonable grounds for believing that his act or omission
was not a violation of the [FLSA].” Although the Order (Doc. # 90) granting
Plaintiff’s motion to strike (Doc. # 85) barred Defendants from raising FLSA
exemption defenses under 29 U.S.C. § 213, Defendants intended to argue at trial
that the § 260 good faith defense applied because they reasonably believed
Plaintiff was an executive and managerial employee who was exempt from the
FLSA overtime requirements under § 213. In continuing the trial, the court found
that a continuance was necessary because allowing Defendants to litigate the good
faith defense while prohibiting them from asserting the FLSA exemption defenses
created too great a risk of juror confusion.
Plaintiff now argues that, like the § 213 exemption defenses, Defendants’
good faith defense is an affirmative defense and, therefore, should be disallowed
on grounds that Defendants failed to raise it in an answer. Defendants argue that
Plaintiff did not ask for liquidated damages in his amended complaint and,
therefore, they were not on notice that they needed to raise the defense to
liquidated damages until Plaintiff mentioned liquidated damages for the first time
in the parties’ proposed pretrial order. (Doc. # 132 at 6 n.3.)
Plaintiff’s retroactive contention that Defendants should have been
6

precluded from raising the defense of good faith at trial overlooks the fact that
Plaintiff never moved to strike that defense and instead took the initiative in
presenting the issue for litigation.8 The portion of the proposed pretrial order9 that
set forth Plaintiff’s contentions waxed on at length about Defendants’ alleged
willfulness and lack of good faith. Plaintiff moved “to strike Defendants’ FLSA
exemptions (See 29 U.S.C. @ 213).” (Doc. # 85 at 1 (emphasis added; otherwise,
sic.)) However, Plaintiff did not include the § 260 good faith defense in his motion
to strike.

Plaintiff’s trial brief, proposed jury instructions, and proposed jury

verdict forms presented those issues for resolution at trial.10 Thus, Plaintiff fully

8

In an off-the-record conference call on July 22, 2015, Plaintiff did take the position that
good faith was an affirmative defense that should be disallowed. (See Doc. # 132 at ¶ 7.)
However, Plaintiff did not raise this argument in his motion to strike, and, in the proposed
pretrial order, Plaintiff’s trial brief, Plaintiff’s proposed jury instructions, and Plaintiff’s
proposed jury verdict form, Plaintiff presented Defendants’ willfulness and alleged lack of good
faith as issues to be litigated at trial. (Doc. # 101; Doc. # 103; Doc. # 106.) The court takes
judicial notice of the inequity in Plaintiff’s argument that he was prejudiced by surprise on the
eve of trial.
9

Plaintiff submitted the proposed pretrial order to the court by email on June 23, 2015.
In the email to which the proposed pretrial order was attached, Plaintiff’s counsel stated only that
“Plaintiff will be filing a motion objecting to the FLSA exemptions in Defendants contentions.”
Plaintiff stated no objection to the defense of good faith which, as noted, he himself chose to
include in his own list of contentions in the proposed pretrial order. A copy of the June 23, 2015
email and attached proposed pretrial order is included as an exhibit to this memorandum opinion.
10

Section 260 provides that the court, not the jury, ultimately determines whether
liquidated damages are appropriate in the face of a defendant’s attempt to show good faith.
However, juries are often presented with special interrogatories and given the opportunity to
provide an advisory opinion on the question. See Robinson v. Food Serv. of Belton, Inc., 415 F.
Supp. 2d 1232, 1239 (D. Kan. 2005). In this case, Plaintiff submitted a proposed jury verdict
form that included the following question: “Has it been proved that the Defendants either knew its
conduct was prohibited by the Fair Labor Standards Act or showed reckless disregard for whether its
conduct was prohibited by the Fair Standards Act?” (Doc. # 103 at 1 (sic).) Plaintiff also submitted
proposed jury instructions that included (1) an instruction for the jury to determine whether the
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anticipated and actively participated in presenting the issues of good faith and
willfulness for litigation. Because Plaintiff was the one who consistently
introduced and urged consideration of the good faith defense, Defendants would
have been prejudiced if, at the last minute, they had not been allowed to raise it.
Once the parties placed the good faith defense before the jury, the potential for
juror confusion would have been unmanageable, particularly in the context of a
situation where none of the parties was prepared to present a cogent case at trial.
In any event, the fact remains that this case was not ready for trial at the time
it was continued, and both sides benefitted from a continuance.

Although

Defendants’ procedural failures were the proverbial straw that broke the camel’s
back (see Doc. # 128), both sides’ lack of preparation seriously threatened to
transform what should have been a fairly simple jury trial on the merits of a
discrete FLSA overtime claim into an onerous mess, to the prejudice of the parties,

FLSA violation was willful; (2) the question “Has it been proved that the Defendants either knew
its conduct was prohibited by the Fair Labor Standards Act or showed reckless disregard for
whether its conduct was prohibited by the Fair Standards Act?”; and (3) a special interrogatory
about whether the FLSA violation was willful. (Doc. # 106 at 7-9, 11-12 (sic).) Plaintiff’s trial
brief explained that willfulness and good faith were relevant to Plaintiffs claims for liquidated
damages and attorney’s fees. (Doc. # 101 at 2, 8.) The court notes that the statute of limitations,
which is extended from two years to three years if the jury finds that the FLSA violation was
willful, is not at issue in this case. See Pena v. Handy Wash, Inc., 114 F. Supp. 3d 1239 (S.D.
Fla. 2015) (explaining that, in an FLSA case, the judge and jury address issues of willfulness and
good faith for two different purposes: the jury considers the issue as it pertains to the limitations
period, and, if there is a verdict for the employee, the court considers the question to determine
whether to award liquidated damages). It is therefore apparent that Plaintiff consented to and
actively participated in preparing the good faith defense for submission to the court and the jury
until he unexpectedly changed his mind in an off-the-record status conference less than a week
before trial.
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the court, and the jury. During this time of judicial emergency in this district, the
court is not at leisure to waste scarce judicial resources on circuses. Even if, after
all of the trial preparation materials had been submitted, the court had entertained
Plaintiff’s last-minute about-face regarding the admissibility of the good faith
defense, the case would necessarily have been continued on grounds that the
parties simply were not ready for trial. However, because a continuance was
warranted under the circumstances, the allowance of the FLSA exemption defenses
did not prejudice Plaintiff.
Accordingly, it is ORDERED as follows:
1.

Plaintiff’s motion in limine (Doc. # 104) is DENIED;

2.

Defendants’ motion in limine (Doc. # 107) is DENIED;

3.

Defendants’ second motion in limine (Doc. # 108) is DENIED;

4.

Defendants’ third motion in limine (Doc. # 111) is DENIED; and

5.

Plaintiff’s motion for reconsideration (Doc. # 131) is DENIED.
DONE this 10th day of February, 2016.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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EXHIBIT

Proposed Pretrial Order Submitted By the Parties On June
23, 2015

Fwd: Wells v. Gourmet Services et. al. Joint Proposed Pretrial Order

James Long

06/23/2015 09:43 AM

1 attachment

~

Joint Pre-Trial OrderFinal.docx

---------- Fo1warded messa e ---------From: James Long
Date: Tue, Jun 23, 2015 at 9:35 AM
Subject: Fwd: Wells v. Gommet Services et. al. Joint Proposed Pretrial Order

The copy I sent last night was not delivered. See copy attached.

From: James Lon
Date: Mon, Jun 22, 2015 at 7:12 PM
Subject: Wells v. Gommet Services et. al. Joint Proposed Pretrial Order
To

See Word fonnat copy of above document attached. Plaintiff will be filing a motion objecting to
the FLSA exemptions in Defendants contentions.
James E. Long
iiiiiiilaintiff

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
LAWRENCE WELLS
Plaintiff,
vs.

GOURMET SERVICES INC.,
ET.AL
Defendants.

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CIVIL ACTION NO.
2:13-CV-00516-CSC

JOINT PROPOSED PRETRIAL HEARING ORDER
A pretrial hearing was held in this case on June 25, 2015 wherein the following
proceedings were held and actions taken:
1.

PARTIES AND TRIAL COUNSEL:
For the Plaintiff: James E. Long
For the Defendants: Odis Williams
COUNSEL APPEARING AT PRETRIAL HEARING:
Same as trial counsel. Defendant reserves the right add additional counsel.

2.

JURISDICTION AND VENUE:
(a) Plaintiffs’ claims arise under the Fair Labor Standards Act, as
amended,
29 U.S.C. §§ et seq. (hereinafter “FLSA”).
(b) Subject matter jurisdiction exists as to Defendant Gourmet Services,
Inc. on the basis of federal question jurisdiction under 29 U.S.C. §§
201 et seq. and 28 U.S.C. § 1331. Subject Matter Jurisdiction is
1 

contested as to Defendants Tia Benton, Charles Jones, Jasper Manuel,
and Albert Baker as they are not considered “Employers” within the
context of 29 U.S.C.A. § 203(d).
(c) Venue in the Middle District of Alabama is proper under 28 U.S.C. §
1391 (b) and 1391 (c) in that Defendant Gourmet does business in this
district and a substantial part of the conduct giving rise to the claims
occurred in this district.
(d) All jurisdictional and procedural requirements prerequisite to
maintaining this action have been met.

3.

PLEADINGS:
The following pleadings and amendments were allowed:
(a) Plaintiff’s Complaint (Doc. #1).
(b) Answer of Defendants Gourmet Services Inc., Baker, Benton, and Gil
Jones to Plaintiff’s’ Complaint (Doc. #14).
(c) Amended Answer of Defendants Gourmet Services Inc., Baker,
Benton, Gil Jones, Jasper Jones and Charles Jones (Doc. #31).
(d) Plaintiffs’ Amended Complaint (Doc. #47).

4.

CONTENTIONS OF THE PARTIES:
(a) Plaintiff:
1. Defendant Gourmet Services Inc. is engaged in commerce or in the
production of goods for commerce or is an enterprise engaged in
commerce or in the production of goods for commerce with gross
annual sales of at least $500,000 as defined by §203 and §2611 of
the FLSA. 29 U.S.C. Gourmet Services Inc. was an “employer” of
Wells as defined by §203(d) of the FLSA. At all times material to
this action, Wells was an “employee” of Defendant Gourmet
Services Inc. as defined by §203 (e) (1) of the FLSA, and worked
2 

for the Defendant Gourmet Services Inc. within the territory of the
United States within three years preceding the filing of this lawsuit.
The overtime provisions set forth in §§206 and 207, respectively,
of the FLSA apply to Defendant Gourmet Services Inc. and the
Plaintiff was covered by §206 and §207 of the FLSA while he was
employed by Defendant Gourmet Services Inc.
2. Individual Defendants Al Baker (Vice President), Tia Benton (HR
Director), Gil Jones (Chief of Operations), and Jasper Manual
(incorrectly identified as Jasper Jones) (Regional Director)
controlled the operations, financial affairs and the allocation of
financial resources of Defendant Gourmet Services, Inc. and caused
Defendant Gourmet Services Inc. to fail to pay Plaintiff according
to the requirements of the FLSA and are jointly and severally liable
to Plaintiff for FLSA violations. See Goldsby v. Renosol Seating,
LLC, ---F.Supp.2d ---, 2013 WL 1689849 @6 (S.D.Ala. March 29,
2015) (discussing joint and serval individual liability under the
FLSA).
3. Throughout Wells employment, Defendant Gourmet Services Inc.
and individual Defendants Baker, Benton Gil Jones and Jasper
Manuel were aware of the requirements of the FLSA and its
corresponding regulations necessary to pay for actual work
performed and for overtime pay when employees perform overtime
work. Despite this knowledge, Defendant Gourmet Services Inc.
and individual Defendants Baker, Benton Gil Jones and Jasper
Manuel failed to pay Plaintiff Wells mandatory overtime wages as
required by the FLSA. The services performed by Wells were a
necessary and integral part of and directly essential to Defendant
Gourmet Services Inc. and individual Defendants Baker, Benton,
Gil Jones and Jasper Manuel’s business. Wells routinely worked
overtime hours and was not compensated for those hours worked.
4. Gourmet Services Inc. and individual Defendants Baker, Benton,
Gil Jones and Jasper Manuel were aware Plaintiff Wells was
working overtime hours while employed with Gourmet. Wells
complained repeatedly of working high numbers of overtime hours
to Gourmet Services Inc. and individual Defendants Baker, Benton,
3 

Gil Jones and Jasper Manuel. No action was taken by Gourmet and
these individual Defendants to pay for overtime hours, determine
Wells eligibility for overtime or stop Wells from working overtime.
5. Wells began working for Gourmet Services Inc. on or about June
16, 2011, as an Executive Chef and later Executive Chef
/Production Manager at Alabama State University Dining Services,
Montgomery, Alabama. Wells worked with Defendant Gourmet
Services Inc. until June 10, 2013, when he was terminated. Wells
was a full time regular employee with Gourmet Services Inc. At all
times during his employment with Gourmet, the Defendant
Gourmet Services Inc. and individual Defendants Baker, Benton,
Gil Jones and Jasper Manuel controlled all aspects of Wells hiring,
job placement, work, job assignments, supervision, discipline,
wages, hours scheduled, hours worked, overtime allowed/paid,
demotion, termination, and all essential terms and conditions of his
daily work.
6. Gourmet Services Inc. and individual Defendants Baker, Benton,
Gil Jones and Jasper Manuel have intentionally failed and/or
refused to pay the Plaintiff at overtime rates for work performed
according to the provisions of the FLSA. As a result of the
Defendant Gourmet Services Inc. and individual Defendants Baker,
Benton, Gil Jones and Jasper Manuel’s violations of the FLSA,
Wells has suffered damages by failing to receive overtime wages in
accordance with §207 of the FLSA.
7. During the time of employment, payroll records maintained by
Gourmet Services Inc. and produced to Plaintiff state that Wells
worked 1407.50 hours of overtime. Gourmet failed to provide
regular payroll records required to be maintained by the FLSA for
the following: 5/24/12 to 7/4/12, 11/22/12 to 12/05/12, 12/27/12 to
1/2/13, and 2/14/13 to 6/10/13.
8. Plaintiff contend that Defendant Gourmet Services Inc. and
individual Defendants Baker, Benton, Gil Jones and Jasper Manuel
jointly and severally failed to pay him overtime pay totaling
$63,337.00 ( 1407 hours x $45/hr.) based upon payroll records kept
4 

by Defendant Gourmet Services Inc. on Plaintiff’s worktime and
supplied to Plaintiff.
9. Plaintiff contends the Defendant Gourmet Services Inc. and
individual Defendants Baker, Benton, Gil Jones and Jasper Manuel
jointly and severally failed to pay him 319.75 hours of overtime
totaling $14,388.75 ( 319.75 x $45) for hours worked where no
payroll records were maintained by Defendant Gourmet Services
Inc. or provided to Plaintiff (i.e. 5 /24/12 to 7/4/12, 11/22/12 to
12/05/12, 12/27/12 to 1/2/13, and 2/14/13 to 6/10/13) based upon
the recollection and approximation of Plaintiff.
10. In addition to the amount of unpaid wages owed, Plaintiff is also
entitled to recover from Defendant Gourmet Services Inc. and
individual Defendants Baker, Benton, Gil Jones and Jasper Manuel
jointly and severally an additional equal amount as liquidated
damages pursuant to 29 U.S.C. §216(b) and prejudgment interest.
Gourmet’s actions in failing to compensate Wells in violation of
the FLSA were willful and Gourmet has not made good faith effort
to comply with the FLSA.
11. Plaintiff contends that he is entitled to $77,725.75 ( $63.337 +
$14,388.75) in liquidated damages against Defendant Gourmet
Services Inc. and individual Defendants Baker, Benton, Gil Jones
and Jasper Manuel jointly and severally plus prejudgment interest
because Defendant Gourmet Services Inc. and individual
Defendants Baker, Benton, Gil Jones and Jasper Manuel willfully
violated the FLSA in that Plaintiff constantly complained to
individual Defendants Baker, Benton, Gil Jones and Jasper Manuel
and other management about the high number of overtime hours he
worked and not being paid extra for those hours and Defendant
Gourmet Services Inc. and individual Defendants Baker, Benton,
Gil Jones and Jasper Manuel never made good faith efforts to pay
Plaintiff’s overtime or good faith efforts to determine Plaintiff’s
eligibility for overtime and Defendant Gourmet Services Inc.’s and
individual Defendants Baker, Benton, Gil Jones and Jasper Manuel
failed to keep and maintain adequate payroll/time records on the
hours worked by Plaintiff.
5 

12. Plaintiff contends that Defendant Gourmet Services Inc. and
individual Defendants Baker, Benton, Gil Jones and Jasper Manuel
jointly and severally are liable to Plaintiff for payment of the
reasonable attorney fees and expenses of Plaintiff’s counsel.
13. “The Fair Labor Standards Act was designed to extend the frontiers
of social progress by insuring to all able-bodied working men and
women a fair day’s pay for a fair day’s work.” Gregory v. First
Title of Am., Inc., 555 F.3d 1300, 1307 (11th Cir. 2009) (quoting
A.H. Phillips, Inc., 324 U.S. 490, 493 (1945)); 29 U.S.C. §201 et.
seq.
14. “There can be no doubt that the purpose of the FLSA was and is to
protect interstate employees by denying their employers the tool of
toying with workers’ wages when battling in the competitive
market.” Martinez v. Behring’s Bearings Serv., Inc., 501 F.2d 104,
107 (5th Cir. 1974).
15. “The [Fair Labor Standards Act] should be interpreted liberally in
the [Plaintiffs’] favor.” Birdwell v. City of Gadsden, 970 F.2d 802,
805 (11th Cir. 1992); Mitchell v. Lubin, McGaughy & Assocs., 358
U.S. 207, 211 (1959).
16. To accomplish this, 29 U.S.C. § 207 (a) “requires [that] [the
employer pay their employees at the enhanced rate of time-and-ahalf when their work week exceeds 40 hours,” Cremeens v. City of
Montgomery, 602 F.3d 1224, 1227 (11th Cir. 2010 Naramore v.
City of Jasper, ---F.Supp.3d. ---, 2014 WL 2875475 @5 (N.D.Ala.
June 14, 2014)(“An employee is entitled to overtime compensation
at a rate that is at least 1.5 times his regular rate of pay.”)(“An
employee’s regular rate is always an hourly rate and if an employee
is paid on a salaried, as opposed to an hourly, basis, the employer
must calculate an hourly rate from the salary.”).
17. Individual liability for violations of the FLSA is no longer limited
to only corporate officers in the Eleventh Circuit. In Lamonica v.
Safe Hurricane Shutters, 711 F.3d 1299 (11th Cir. 2013), the
Eleventh Circuit Court of Appeals held that any individual with
control over an employer’s financial affairs or operations could be
held liable for FLSA violations. “(T)he FLSA contemplates at least
6 

some individual liability …upon those who “control [] a
corporation’s financial affairs and can cause the corporation to
compensate (or not compensate) employees in accordance with the
FLSA.”” Lamonica v. Safe Hurricane Shutters, 711 F.3d 1299,
1313 (11th Cir 2013) (parenthetical original and added).
18. Plaintiff seeks the payment of back overtime wages for all overtime
hours worked including call-ins, liquidated damages, attorney fees,
and such other relief as entitled by law in this case.
19. Defendant Gourmet Services Inc. and individual Defendants Baker,
Benton, Gil Jones and Jasper Manuel’s conduct in failing to
properly classify and compensate Plaintiff with overtime as is
required by the FLSA was willful. Defendant Gourmet Services
Inc. and individual Defendants Baker, Benton Gil Jones and Jasper
Manuel knew, or showed reckless disregard for, the fact that their
conduct was forbidden by the FLSA. Ojeda-Sanchez v. Bland
Farms, LLC, 499 Fed. Appx. 897 (11th Cir. 2012); Morgan v.
Family Dollar Stores, 551 F.3d 1233, 1280 (11th Cir. Ala. 2008)(
“Federal regulations define “reckless disregard” as “the failure to
make adequate inquiry into whether conduct is in compliance with
the [FLSA] ……. 5 C.F.R. § 551.104.”).
20. Defendant Gourmet Services Inc. and individual Defendants Baker,
Benton, Gil Jones and Jasper Manuel did not act in “good-faith”
with respect to the classification and pay practices due to there
being no evidence that its failure to compensate Plaintiff was taken
in good faith and was in conformity with and in reliance on a
written administrative interpretation from the Department of Labor.
29 U.S.C. § 259; Cole v. Farm Fresh Poultry, Inc., 824 F.2d 923,
926-927 (11th Cir. 1987)(“an employer’s actual reliance upon his
own incorrect interpretation of a vague and general administrative
guideline will not suffice.”).
21. Defendant Gourmet Services Inc. and individual Defendants Baker,
Benton, Gil Jones and Jasper Manuel cannot prove both that it
acted with good faith belief that its policy and practice of not
paying Plaintiffs’ overtime compensation was in compliance with
the FLSA and the Department of Labors’ regulations and that it had
7 

reasonable grounds for its belief. Ojeda-Sanchez v. Bland Farms,
LLC, 499 Fed. Appx. 897 (11th Cir. 2012) (citing Rodriguez v.
Farms Stores Grocery, Inc., 518 F.3d 1259, 1272 (11th Cir. 2008).
22. Defendant Gourmet Services Inc. and individual Defendants Baker,
Benton, Gil Jones and Jasper Manuel have violated the FLSA’s
recording keeping requirement set out in 29 U.S.C. § 211 (c) and
29 C.F.R. § 516.2. See allegations pro se Amended Complaint Doc.
47 pages 10-14.
23. Defendant Gourmet Services Inc. has a duty and is required to
make, keep, and preserve records of Plaintiff’s wages, hours, and
other conditions and practices of employment since “[it] is in a
superior position to know and produce the most probative facts
concerning the nature and amount of work performed by Plaintiff.”
Allen v. Bd. of Pub. Educ. For Bibb Cnty., 495 F.3d 1306, 1315
(11th Cir. 2007) (citing Anderson v. Mt. Clemens Pottery Co., 328
U.S. 680, 687, 66 S. Ct. 1187, 90 L. Ed. 1515 (1946)).
24. To be in compliance with the Department of Labor’s record
keeping provision, Gourmet must maintain and preserve records
indicating among other things, (1) the time of day of week on
which Plaintiff’s workweek begins: (2) Plaintiff’s regular hourly
rate of pay for any workweek in which overtime compensation is
due; (3) the hours worked each workday and total hours worked
each workweek by Plaintiffs; (4) the total daily or weekly straighttime earnings or wages due for hours Plaintiff’s worked during the
workday or workweek, exclusive of premium overtime
compensation; and (5) the total premium pay for overtime hours 29
C.F.R. § 516.2(a)(1)-(12).
25. Plaintiff contends that his claim for hours worked where there are
no records is a separate claim independent of the overtime pay
claim. Plaintiff contends that Defendant Gourmet Service Inc. is
required by the FLSA to maintain adequate payroll records of
employee worktime. The FLSA requires that covered employers
“make, keep and preserve such records of the person employed by
him of the wages, hours, and other conditions and practices of
employment maintained by him.” 29 U.S.C. § 2111(c). “Failure to
8 

keep appropriate records constitute an independent violation of the
FLSA.” Perez v. ZL Restaurant Corp., --- F.Supp.3d---, 2014 WL
7717614 *8 (D.N.M. Dec. 30, 2014); See U.S.C. § 215; See also
Solis v. SCA Corp., 938 F.Supp.2d 380, 398 (E.N.Y. 2013)( noting
that maintaining inadequate records “constituted a per se violation
of the Act.”); Ziegler v. Tower Communities, LLC., --- F.Supp.3d --, 2015 WL 1208643 @15 (N.D.Ala. March 16, 2015)(“this court
finds that the Ziegler’s are entitled to summary judgment in their
favor as to the FLSA record-keeping claim”).
26. Defendant Gourmet Services Inc. and individual Defendants Baker,
Benton, Gil Jones and Jasper Manuel have violated the Department
of Labor’s record keeping requirements due to the fact they have
failed to maintain a record indicating the hours Plaintiffs worked
each workday, the total hours worked each week and Plaintiff’s
regular rate of pay. Klinedinst v. Swift Invs., Inc., 260 F.3d 1251,
1257 (11th Cir. 2001) (an employer is “obligated to maintain
records of the ‘[h]ours worked each workday and total hours
worked each workweek’.”)
27. The legal consequence of Defendant Gourmet Services Inc.’s and
individual Defendants failure to create and maintain legally
required records is that a separate award of damages to Plaintiff
independent of any overtime pay claim can be rendered, even
though the result might only be “approximate.” Donovan v. New
Floridian Hotel, Inc., 676 F.2d 468, 471 (11th Cir. 1982); Lyless v.
Burt’s Butcher Shoppe & Eatery, Inc., 2011 U. S. Dist. LEXIS
119286, *16-17 (M.D. Ga. Oct. 17, 2011).
28. Plaintiff has proven that they performed therefore Gourmet must
“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 Plaintiffs’ testimony. In the event
Gourmet fails to do so, damages may be still be awarded Plaintiff
even though said damages are only approximate.” Contreras v.
Lara’s Trucks, Inc., ---F.Supp.2d---, 2013 WL 163648 @3 (N.D.
Ga. Jan. 11, 2013).
9 

29. Plaintiff contests any defense or position contained in contentions
of Defendants Gourmet Services Inc. and individual Defendants
Benton, Baker, Gil Jones and Jasper Manuel in this Pretrial Order
or in other parts of this Order that were not timely or properly
raised by Gourmet and individual Defendants in their Answers
and/or at the appropriate stage of this case prior to entry of this
Order. Plaintiff does not consent to the enlargement of any defense
or contention by the Defendant Gourmet Services Inc. and
individual Defendants Baker, Benton Gil Jones and Jasper Manuel
that was not previously raised or properly preserved.

Defendant:
1. That Plaintiff was at all times an exempt employee “employed in a
bona fie executive, administrative, or professional capacity”
pursuant to 29 U.S.C.A. § 213(a)(1) and is therefore exempt from
the consideration of overtime under the FLSA.
2. The Plaintiff is an Executive Chef and is therefore subject to the
“learned exemption” pursuant to 29 C.F.R. §301(e)(6) and is
therefore exempt from consideration for overtime under the FLSA.
See 29 U.S.C.A. § 213(a)(1).
3. The Plaintiff acted in a managerial capacity in his position as
Executive Chef for the duration of his employment with Gourmet
Services, Inc. The Plaintiff was the head chef in charge of the daily
presentation of food at the dining hall and cafeteria located at the
Alabama State University. The Plaintiff was also responsible for
catering special events and programs separate from his duties as an
Executive Chef at the cafeteria. Therefore the Plaintiff was not a
menial employee engaged in ministerial tasks pursuant to 29
C.F.R. §301(e)(6). See 29 U.S.C.A. § 213(a)(1).
4. The Plaintiff further acted in a managerial capacity in that he was
included in the hiring and firing processes, Plaintiff had a staff of
no less than 25 employees that answered to him, and Plaintiff gave
direction to members of the staff in the execution of his duties as
10 

5.

6.

7.

8.

Executive Chef. Therefore the Plaintiff was not a menial employee
engaged in ministerial tasks pursuant to 29 C.F.R. §301(e)(6). See
29 U.S.C.A. § 213(a)(1).
The Plaintiff regularly took part in the meetings with the managers
composed of Al Baker, Jasper Manuel, and the Plaintiff. The
Plaintiff acted with autonomy as it related to the performance of
his duties as Executive Chef. The Plaintiff answered only to Al
Baker during the performance of his duties as an Executive Chef.
Therefore the Plaintiff was not a menial employee engaged in
ministerial tasks pursuant to 29 C.F.R. §301(e)(6). See 29
U.S.C.A. § 213(a)(1).
The Plaintiff studied at the Food and Maritime Trade School in
New York, New York for several years and has held himself out,
publicly, to be an Executive Chef based on such study of the
culinary arts. (Doc. 1-2 p.3).
The Plaintiff was hired as an Executive Chef, as is demonstrated
by the Plaintiff’s Offer Letter with Gourmet Services, Inc. The
Plaintiff was correspondingly paid a salary as an exempt employee
pursuant to 29 C.F.R. §541.602. Plaintiff was further paid a salary
on a weekly basis of at least $455.00 per week pursuant to 29
C.F.R. 541.301 and is accordingly exempt from consideration of
overtime pursuant to the FLSA. Watkins v. City of Montgomery,
919 F.Supp. 1254, 1260 (M.D. Ala. 2013) (“An employee falls
within the administrative exemption if: (1) he is “[c]compensated
on a salary basis at a rate of not less than $455 per week”; (2) his
“primary duty is the performance of office or non-manual work
directly related to the management or general business operations
of the employer or the employer's customers”; and (3) his “primary
duty includes the exercise of discretion and independent judgment
with respect to matters of significance.” 29 C.F.R. §541.200(a).”)
The duties of the Plaintiff with his employment as an Executive
Chef for Gourmet Services, Inc. correspond exactly to the duties of
an executive chef as detailed by the United States Department of
Labor in its Occupational Handbook. (“Executive chefs, head
cooks, and chefs de cuisine are primarily responsible for
11 

overseeing the operation of a kitchen. They coordinate the work of
sous chefs and other cooks, who prepare most of the meals.
Executive chefs also have many duties beyond the kitchen. They
design the menu, review food and beverage purchases, and often
train cooks and other food preparation workers. Some executive
chefs primarily handle administrative tasks and may spend less
time in the kitchen.”) Department of Labor Handbook; Executive
Chefs.
9. The Plaintiff in acting as an Executive Chef is an exempt employee
in that the employer, Gourmet Services, Inc. has satisfied the four
pronged test considered by this Court in determining whether
employees are exempt pursuant to the FLSA. Those prongs are 1)
the salary test, 2) the primary duties of the employee relate to
management of the enterprise, and 3) the employee directs at least
two employees in the course of the exercise of his duties, and 4)
the suggestions of the employee related to hiring and firing are
given sufficient weight. 29 C.F.R. §541.200(a); Watkins v. City of
Montgomery, 919 F.Supp.2d 1254, 1260 (M.D. Ala. 2013).
10. The Plaintiff spent more than half of the time in the performance of
his duties in a management role in that he oversaw the presentation
and delivery of the food items in that he checked the freshness of
the food and ingredients, supervised the activities of cooks and
other food preparation workers, developed recipes and determined
how to present the food, planned menus and ensured uniform
serving sizes and quality of meals, inspected supplies, equipment,
and work areas for cleanliness and functionality; hired, train, and
supervise cooks and other food preparation workers, ordered and
maintain inventory of food and supplies, and monitored sanitation
practices and follow kitchen safety standards. Therefore when
considered as a whole, the Plaintiff’s primary job duties are
included within the exemption provided for Executive Chefs as
learned professionals. 29 C.F.R. §541.700(a); see also Barreto v.
Davie
Marketplace,
LLC, 331
Fed.Appx.
672
(11th
Cir.2009) (applying this principle).
12 

11. The Plaintiff’s contentions that he is owed overtime pay pursuant
of the FLSA are false based on the evidence and that further the
Defendants were under no obligation to maintain any records
regarding hourly wages related to the Plaintiff as an exempt
employee.
12. The Plaintiff in this Pre-Trial Order makes or attempts to make
contentions that expand beyond the Plaintiff’s Complaint and
attempt to place facts in evidence improperly. Such contentions
must therefore be stricken and not considered by this Court or the
Jury. Such contentions relate specifically to the duty to maintain
records related to the Plaintiff’s hourly wages.
13. The Defendant similarly contests any position contained within the
contentions of Plaintiff that were not properly or timely raised.
5.

STIPULATIONS BY AND BETWEEN THE PARTIES:
1. An April13, 2011 employment letter was signed by and Defendant
Gourmet Services Inc. and Plaintiff Lawrence Wells employing Wells
as an Executive Chef at an annual salary of $62,500.
2. Plaintiff Wells worked for Defendant Gourmet Services Inc. with the
job titles of Executive Chef and later Executive Chef/Production
Manager at Alabama State University Dining Services, Montgomery,
Alabama from June 16, 2011 through June 10, 2013.
3. June 13, 2013 letter from Gourmet to Wells terminated his services
effective June 13, 2013.
4. Defendant Al Baker is and was Vice President of Defendant Gourmet
Services Inc during all times relevant to this case.
5. Defendant Tia Benton is and was Human Resources Director of
Defendant Gourmet Services Inc. during all times relevant to this case.
6. Defendant Gil Jones is and was Chief of Operations of Defendant
Gourmet Services Inc. during all times relevant to this case.
7. Defendant Jasper Manuel is and was Regional Director of Defendant
Gourmet Services Inc. during at all times relevant to this case.

13 

[SIGNATURE PAGE FOLLOWS]

IT IS HEREBY ORDERED that the above constitutes the Pretrial Order for the
above captioned case (___) submitted by stipulation of the parties or (___)
approved by the court after conference with the parties.
IT IS FURTHER ORDERED that the foregoing, including the attachments
thereto, constitutes the Pretrial Order in the above case and that it supersedes the
pleadings which are hereby amended to conform hereto and that this Pretrial Order
shall not be amended except by order of the Court to prevent manifest injustice.
Any attempt to reserve a right to amend or add to any part of the Pretrial Order
after the Pretrial order has been filed shall be invalid and of no effect and shall not
be binding upon any party or the court, unless specifically authorized in writing by
the court.
IT IS SO ORDERED this ___ day of ____________________, 20___.

______________________________________
THE HONORABLE KEITH WATKINS,
JUDGE, UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF ALABAMA
14 

MONTGOMERY DIVISION

Respectfully submitted this ___ day of June, 2015.

/s/ James E. Long
_
James E. Long, Esq.
Georgia Bar No. 408979
The Law Office of James E. Long
105 S. McDonough Street
Atlanta, GA 30308
[phone] Telephone
Email: [e-mail]
Counsel for Plaintiff

/s/ Odis Williams
_
Odis Williams, Esq.
Georgia Bar No. 556272
The Law Office of Odis Williams, P.C.
1640 Powers Ferry Road
Building 20, Suite 300
Marietta, GA 30067
[phone] Telephone
[phone] Facsimile
Email: [e-mail]
Counsel for Defendants
Admitted Pro Hac Vice

CERTIFICATE OF SERVICE
I hereby certify that I have served a copy of Joint Proposed Pretrial Hearing Order on
counsel for Defendants using the electronic Pacer system and/or by placing copies thereof in the
United States Mail, First Class postage prepaid, on this the 22nd day of June 2015 addressed as
follows:
Odis Williams
Law Office of Odis Williams, P.C.
1718 Peachtree Street
South Tower Suite 265
15 

Atlanta, GA 30309
[e-mail]
/s/ James E. Long.
James E. Long-LON016

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