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

Filing 162

MEMORANDUM OPINION AND ORDER: Accordingly, it is ORDERED that Defendants' 140 motion for summary judgment is DENIED. Signed by Chief Judge William Keith Watkins on 5/23/2016. (kh, )

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

)
)
)
)
) CASE NO. 2:13-CV-516-WKW
) (WO)
)
)
)

MEMORANDUM OPINION AND ORDER
Before the court is Defendants’ motion for summary judgment. (Doc. #
140.) Upon consideration of the motion, the court concludes that the motion is due
to be denied.  
I.

JURISDICTION AND VENUE

The court has subject-matter jurisdiction over Plaintiff’s federal-law claims
pursuant to 28 U.S.C. § 1331. Personal jurisdiction and venue are uncontested.
II.

STANDARD OF REVIEW

To succeed on summary judgment, the movant must demonstrate “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 court must view the evidence and
the inferences from that evidence in the light most favorable to the nonmovant.
Jean–Baptiste v. Gutierrez, 627 F.3d 816, 820 (11th Cir. 2010).

The party moving for summary judgment “always bears the initial
responsibility of informing the district court of the basis for its motion.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986).

This responsibility includes

identifying the portions of the record illustrating the absence of a genuine dispute
of material fact. Id. Alternatively, a movant who does not have a trial burden of
production can assert, without citing the record, that the nonmoving party “cannot
produce admissible evidence to support” a material fact. Fed. R. Civ. P.
56(c)(1)(B); see also Fed. R. Civ. P. 56 advisory committee’s note (“Subdivision
(c)(1)(B) recognizes that a party need not always point to specific record materials
. . . . [A] party who does not have the trial burden of production may rely on a
showing that a party who does have the trial burden cannot produce admissible
evidence to carry its burden as to the fact.”).
If the movant meets its burden, the burden shifts to the nonmoving party to
establish—with evidence beyond the pleadings—that a genuine dispute material to
each of its claims for relief exists. Celotex, 477 U.S. at 324. A genuine dispute of
material fact exists when the nonmoving party produces evidence allowing a
reasonable fact finder to return a verdict in its favor. Waddell v. Valley Forge
Dental Assocs., 276 F.3d 1275, 1279 (11th Cir. 2001).

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III.
A.

DISCUSSION

Defendants Are Not Entitled to Summary Judgment on Wells’s FLSA
Overtime Claims.
Wells alleges that Defendants violated the FLSA by hiring him for a position

that was designated as an executive or management position, but effectively using
him as a nonmanagerial, nonexecutive food production worker and requiring him
to work in excess of forty hours per week without overtime pay. On summary
judgment, Defendants argue that Wells is exempt from the FLSA under the
executive and administrative employee exclusions provided by 29 U.S.C. §
213(a)(1). See 29 C.F.R. § 541.100(2) (providing that, as a general rule, to meet
the executive employee exemption, an employee must be one who is
“[c]ompensated on a salary basis at a rate of not less than $455 per week”;1
“[w]hose primary duty is management of the enterprise or a subdivision or
department” of the enterprise; “[w]ho customarily and regularly directs the work of
two or more other employees; and [w]ho has the authority to hire or fire other
employees or whose suggestions and recommendations as to the hiring, firing,
advancement, promotion or any other change of status of other employees are
given particular weight.”); 29 C.F.R. § 541.200(2) (providing that, as a general
rule, to meet the administrative employee exemption, the employee must be one

1

It is undisputed that Wells meets the minimum salary requirements of the executive and
administrative employee exemptions.
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who is “[c]ompensated on a salary basis at a rate of not less than $455 per week”;
“[w]hose primary duty is the performance of office or non-manual work directly
related to the management or general business operations of the employer”; and
“[w]hose primary duty includes the exercise of discretion and independent
judgment with respect to matters of significance.”); 29 C.F.R. § 541.700(a)
(providing that, for determining whether an employee’s primary duty consists of
exempt work, the relevant factors include, but are not limited to, “the relative
importance of the exempt duties as compared with other types of duties; the
amount of time spent performing exempt work; the employee’s relative freedom
from direct supervision; and the relationship between the employee’s salary and
the wages paid to other employees for the kind of nonexempt work performed by
the employee”).
In support of the summary judgment motion, Defendants flatly
misrepresented numerous portions of Wells’s deposition testimony. For example,
Defendants cite portions of Wells’s deposition for the proposition that, as a matter
of “undisputed fact”, “Wells was a manager at Gourmet Services” and “[h]e
managed about 45 employees.” (Doc. # 140 at 4.) The cited portions of Wells’s
deposition in no way support Defendants’ statement. If anything, taken at face
value, the cited portions of Wells’s deposition reinforce his allegation that he was a
manager in name only, but not in fact. (Doc. # 142-1 at 83 lines 9-16 (Wells
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referring to himself as a “so-called manager” who took part in conference calls that
were not attended by hourly workers); Doc. # 142-1 at 104 line 22, through 105
line 6 (Gourmet Services’ lawyer reading aloud an email written by Wells in which
he complains that, although he was supposed to be a manager, his supervisor at
Gourmet Services was “working [him] like an hourly employee,” micromanaging
his work and allowing him no discretion, “overrunning” him in the kitchen,
“running the kitchen” instead of him, and “working [him] like a dog”); Doc. # 1421 at 19 (Wells’s testimony that he manages “about 45 employees” at his current
job in Dubai, United Arab Emirates)).
Defendants have also been less than candid about other cited portions of
Wells’s deposition. For example, Defendants also represent that another portion of
Wells’s testimony establishes as “undisputed fact” that Wells “enforced staff
schedules” and reported to his superiors when those schedules were not being
followed. The cited deposition testimony, however, includes statements that Wells
(1) “didn’t have any authority” to discipline staff or enforce schedules; (2) that
“management” (excluding Wells) had “all executive power,” including the power
to discipline employees; (3) that all discipline Wells thought necessary had to “go
through management” and that he had to “get management to talk to” errant staff;
and (4) that “nothing was done” regarding his disciplinary complaints to
“management” about staff not following work schedules. (Doc. # 142-1 at 158–
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59.) Out of context, portions of the cited deposition testimony could be interpreted
as a suggesting that Wells had the authority to manage employees, enforce staff
schedules, and maintain discipline by reporting matters to his superiors, but,
contrary to Defendants’ representations, Wells’s testimony does not establish the
matter as an undisputed fact.
Defendants represent as a matter of “undisputed fact” that a portion of
Wells’s testimony establishes that he “frequently made suggestions to management
regarding the operation of the business” (Doc. # 140 at 5), but Defendants fail to
mention that, in the same cited testimony, Wells stated that his emails were “just
suggestions” that his employer “never did anything” about and “never responded
to.” (Doc. # 142-1 at 170.) Defendants cite another portion of Wells’s deposition
testimony for the proposition that “Wells made suggestions to the weekly operation
reports” (Doc. # 140 at 5), but the cited portion of Wells’s deposition does not
support that proposition. (Doc. # 142-1 at 163–66 (Wells’s testimony that he used
data from readily available weekly operations reports to create a handwritten
spreadsheet that he used to make suggestions, and that he does not remember what
suggestions he made on the basis of his spreadsheet); see also Doc. # 142-1 at 97
(Wells’s explanation that weekly operations reports were financial “reports that
c[a]me down from Al Baker and the company”).)

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Defendants represent that another portion of Wells’s deposition establishes
as an undisputed fact that he “was responsible for the purchasing, receiving, and
storing of food products and maintaining budget control, inventory, and food
costs.” (Doc. # 140 at 5.) However, in the cited deposition testimony, Wells
testified that he did not remember the purpose of a certain handwritten ledger that
catalogued sales and costs, but that he would have used the ledger to make
“suggestions.” (Doc. # 142-1 at 163–65.) The ledger itself (Doc. # 140-1 at 22–
24) does not indicate whether Wells was responsible for purchasing, receiving, or
storing food products or controlling budget, inventory, or costs. In fact, in another
portion of Wells’s deposition Defendants cite for the proposition that he was
responsible for those matters, Wells actually testified that other Gourmet Services
managers were primarily responsible for them. (Doc. # 142-1 at 177–79 (Wells’s
testimony regarding the identity of employees who were primarily responsible for
keeping track of inventory and deciding how much food to buy).)
Defendants also represent that, as a matter of “undisputed fact” (Doc. # 140
at 3–5), Wells was responsible for ensuring that the production staff was in strict
compliance in all areas concerning food production; for ensuring that that food was
produced in compliance with standardized menus and recipe cards; and for training
staff and showing them how to prepare recipes. In support of these “undisputed
facts,” Defendants cite Wells’s resumé, in which Wells stated that those duties
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were part of his responsibilities in his job at Gourmet Services. (Doc. # 140-1 at
2.) However, that Wells performed those duties at Gourmet Services is not an
“undisputed fact.” As Defendants fail to mention, Wells testified under oath at his
deposition that, on his resumé, he “lied” and “exaggerated” his responsibilities at
Gourmet Services because he had to do whatever it took to get another job, and
that he did not actually perform those duties. (Doc. # 142-1 at 46–62.)
Aside from the misrepresented portions of the record,2 Defendants have
presented substantial, but controverted, evidence that Wells was employed in a
capacity that qualified for the FLSA’s administrative or executive FLSA
exemptions. (Doc. # 140-1 at 2; Doc. # 140-2; Doc. # 140-3.) However, on
summary judgment, it is not for the court to determine the credibility of Wells’s
testimony or to weigh conflicting evidence. Allen v. Bd. of Pub. Educ. for Bibb
Cty., 495 F.3d 1306, 1315 (11th Cir. 2007) (“‘Credibility determinations, the
weighing of the evidence, and the drawing of legitimate inferences from the facts
are jury functions, not those of a judge, whether he is ruling on a motion for

2

The court does not find it necessary to point out every misrepresentation in Defendants’
brief. Counsel for all parties are admonished that, in the future, they shall comply fully with
the letter and spirit of Rule 11 of the Federal Rules of Civil Procedure. Mere admonishment
is generally reserved for first-time offenders, and, as of this writing, counsel for both sides
have been admonished once for overt material misrepresentation to this court. (See February
10, 2016 Order, Doc. # 143 at 3 (“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. . . . [The] Rule 26 expert report is very
clearly dated June 4, 2015.”).)
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summary judgment or for a directed verdict. The evidence of the nonmovant is to
be believed, and all justifiable inferences are to be drawn in his favor.’” (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).
Taken in context and viewed in the light most favorable to Wells, the
evidence reasonably supports Wells’s contention that, regardless of his official job
description, his primary duties did not involve management or “office or nonmanual work directly related to the management or general business operations of
the employer or the employer’s customers.” 29 C.F.R. § 541.100(2); 29 C.F.R. §
541.200(2). Specifically, Wells’s testimony reasonably supports his contention
that, in practice, his employer utilized him as a food production worker and
actively undermined, overrode, ignored, or otherwise effectively prevented all but
a few attempts on his part to exercise discretion, supervise kitchen staff, or perform
other management or business operations tasks for which, on paper, he may have
been responsible. See 29 C.F.R. § 541.102 (defining “management” in the context
of the executive exemption); 29 C.F.R. §541.201(a) (providing that, to qualify for
the administrative exemption, “an employee must perform work directly related to
assisting with the running or servicing of the business, as distinguished, for
example, from working on a manufacturing production line or selling a product in
a retail or service establishment.”); see also 29 C.F.R. § 541.2 (“A job title alone is
insufficient to establish the exempt status of an employee. The exempt or
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nonexempt status of any particular employee must be determined on the basis of
whether the employee’s salary and duties meet the requirements of the regulations
in this part.”); 29 C.F.R. § 541.700(a) (“To qualify for exemption under this part,
an employee’s ‘primary duty’ must be the performance of exempt work. . . .
Determination of an employee’s primary duty must be based on all the facts in a
particular case, with the major emphasis on the character of the employee’s job as
a whole.”).
Because a genuine dispute of material fact exists as to whether Wells
primarily worked in a managerial or executive capacity, summary judgment is due
to be denied on Wells’s FLSA overtime claim.
B.

To the Extent that Wells’s Complaint Can Be Construed as Asserting a
Claim for Violating FLSA’s Recordkeeping Requirements, Defendants
Are Entitled to Summary Judgment on Wells’s Recordkeeping Claim;
However, Wells is Entitled to Assert a Separate FLSA Overtime Claim
for Periods in Which Defendants Failed to Keep Records of His Hours.
Wells alleges that Defendants failed to keep overtime records during certain

periods of time, thus precluding him from proving the precise amount of overtime
pay he is due for those time periods. (See Doc. # 143 at 15–16, 19–20; Doc. # 158
at 49.) Defendants seek summary judgment on this “claim” on grounds that the

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FLSA does not create a cause of action for violating its recordkeeping
requirements.3
An employee asserting an FLSA overtime claim bears the burden of proving
that he or she worked overtime without compensation and the extent of overtime
owed. See Allen, 495 F.3d at 1315. However, under the FLSA, the employer is
required to make and preserve overtime records.

Id.; 29 U.S.C. § 211(c).

Generally, employees do not keep separate records of all their overtime hours.
Allen, 495 F.3d at 1315. Thus, “[t]he employer is in a superior position to know
and produce the most probative facts concerning the nature and amount of work
performed.” Id.
If an employer violates its FLSA recordkeeping duties and the employee is
unable to produce adequate substitutes for the employer’s overtime records, the
employee will not be penalized for his or her failure to establish the exact amount
of overtime wages to which he or she is entitled. Id. Instead, when the employee
is unable to carry his or her burden to establish the precise amount of overtime pay
owed because the employer violated the FLSA’s recordkeeping requirements, the

3

In their reply brief, Defendants also argue that they were not obligated to keep records
of Wells’s hours and overtime because they had a good faith belief that Wells was an exempt
employee. The court will not consider this argument because it was raised for the first time in a
reply brief, because it is not adequately supported by citation to controlling legal authority, and
because there exists a genuine dispute of material fact as to whether Defendants could have
reasonably and in good faith believed that Wells was exempt. Moreover, under the FLSA,
although good faith is a defense to payment of liquidated damages, “unpaid wages must be
awarded regardless of the employer’s good faith.” Lamonica v. Safe Hurricane Shutters, Inc.,
711 F.3d 1299, 1307 n.7 (11th Cir. 2013).
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employee need only (1) establish that he or she performed overtime work that was
not properly compensated and (2) produce evidence sufficient to show the amount
and extent of the improperly compensated work as a matter of just and reasonable
inference. Id. at 1316. If the employee meets those two requirements, the burden
then shifts to the employer to either produce evidence of the exact amount of work
performed, or to produce evidence that negates the reasonableness of the inference
to be drawn from the employee’s evidence. Id.
Thus, while Defendants are correct that Wells does not have a separate cause
of action for violation of the FLSA’s overtime recordkeeping requirements, Wells
is entitled to assert an FLSA claim for unpaid overtime for which Defendants
failed to keep adequate records.

Allen, 495 F.3d at 1316; Donovan v. New

Floridian Hotel, Inc., 676 F.2d 468, 471 (11th Cir. 1982). Wells is not currently
pursuing a claim for a violation of FLSA’s recordkeeping requirements per se; he
is simply pursuing an FLSA overtime claim for work performed during certain
periods for which Defendants did not keep records, which is permissible. At trial,
Wells will be permitted to pursue an FLSA overtime claim for periods in which
records were kept and an FLSA overtime claim for periods in which they were not,
and the parties’ relative burdens of proof and production will be apportioned
appropriately with respect to each of those claims.

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However, to the extent that Wells’s pro se complaint could be construed as
containing a separate claim against Defendants that is not an overtime claim, but
that is solely a claim seeking damages for violating FLSA’s overtime
recordkeeping requirements, summary judgment is due to be granted. No such
private right of action exists, and, in any event, Wells has since abandoned that
claim. See Rossi v. Associated Limousine Servs., Inc., 438 F. Supp. 2d 1354, 1366
(S.D. Fla. 2006) (providing citations and explanation regarding the lack of a
private right of action to enforce FLSA’s recordkeeping requirements).
C.

The Individual Defendants Are Not Entitled to Summary Judgment on
Grounds That They Are Not “Employers” Within the Meaning of the
FLSA.
Liability under the FLSA for failure to pay overtime is limited to

“employers.” 29 U.S.C.A. § 207(a)(1). The FLSA “defines the term ‘employer’
broadly to include both the employer for whom the employee directly works as
well as any person acting directly or indirectly in the interests of an employer in
relation to an employee.” Lamonica v. Safe Hurricane Shutters, Inc., 711 F.3d
1299, 1309 (11th Cir. 2013) (internal citations and quotation marks omitted); see
also 29 U.S.C. § 203(d) (defining “employer”). Under this broad definition, any
supervisor or “corporate officer with operational control of a [employer]’s covered
enterprise is an employer along with the corporation, jointly and severally liable
under the FLSA for unpaid wages.” Lamonica, 711 F.3d at 1309 (quoting Patel v.
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Wargo, 803 F.2d 632, 637–38 (11th Cir. 1986)). Corporate officers, as well as
supervisors who are not officers, qualify as employers under the FLSA if they
exercise sufficient operational control over the employer’s financial affairs, can
cause the company to comply (or fail to comply) with the FLSA, and either are
involved in the employer’s day-to-day operations or have some direct
responsibility for the supervision of the employee. Id. at 1309, 1313.
Defendants Al Baker, Tia Benton, Gil Jones, Jasper Manual, and Charles
Jones argue that they are entitled to summary judgment because they were not
Wells’s “employer” within the meaning of the FLSA.
contention, they cite Wells’s deposition testimony.

In support of this

In the cited testimony,

however, Wells stated that he did not know whether the individual Defendants
(other than Tia Benton)4 are employers for FLSA purposes; that the matter is “for
the judge to decide;” and that the individual defendants “were all part of the
management.” (Doc. # 142-1 at 301-304.) The cited deposition testimony does
not establish that the individual defendants are entitled to summary judgment on
grounds that they were not Wells’s “employer” as defined by the FLSA. On this
record, the court concludes that any dispositive action as to individual Defendants
should be considered after all the evidence is produced at trial.

4

Wells testified that he was suing Tia Baker is an individual and that she was not his
“employer.” (Doc # 142-1 at 302.) However, in the same portion of his deposition, he stated
that he was suing Tia Benton because she was responsible for human resources. The court notes
that Wells is not a lawyer and that he has submitted evidence that supports his contention that
Tia Baker was an “employer” within the meaning of the FLSA.
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IV.

CONCLUSION

Accordingly, it is ORDERED that Defendants’ motion for summary
judgment (Doc. # 140) is DENIED.
DONE this 23rd day of May, 2016.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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