Allen et al v. Fountainbleau Management Services LLC et al

Filing 30

MEMORANDUM OPINION. Signed by Judge R David Proctor on 5/20/2013. (AVC)

FILED
2013 May-20 PM 12:54
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
BRENDA J. ALLEN, et al.,
Plaintiffs,
v.
FOUNTAINBLEAU MANAGEMENT
SERVICES, LLC, et al.,
Defendants.

}
}
}
}
}
}
}
}
}
}

Case No.: 7:11-CV-3532-RDP

MEMORANDUM OPINION
This case is before the court on Defendant Fountainbleau Management Services LLC’s
Motion for Summary Judgment (Doc. #22). The Motion has been fully briefed. (Docs. #28, 29).
FACTS1

I.

Brenda Allen was employed as a property manager by Defendant Fountainbleau Management
Services, LLC (“Fountainbleau”) from October 21, 2008, through August 5, 2009, at its Broadmoore
Gardens apartment complex in Tuscaloosa, Alabama. (Doc. #1 at 10; Doc. #22-1 at pp. 28, 43; Doc.
#22-2).

1

Appendix II to the Court’s Initial Order (Doc. #3) sets forth the court’s Summary Judgment Requirements.
Appendix II specifically notes that “briefs and evidentiary materials that do not conform to the following requirements
may be stricken.” (Doc. #3 at 13). Appendix II requires that all “All briefs ... begin with a statement of allegedly
undisputed relevant material facts set out in separately numbered paragraphs. Counsel must state facts in clear,
unambiguous, simple, declarative sentences. All statements of fact must be supported by specific reference to evidentiary
submissions.” (Doc. #3 at 15) (emphasis added). Appendix II requires that in responsive briefs, “[t]he first section must
consist of only the non-moving party’s disputes, if any, with the moving party’s claimed undisputed facts. The
non-moving party’s response to the moving party’s claimed undisputed facts shall be in separately numbered paragraphs
that coincide with those of the moving party’s claimed undisputed facts. Any statements of fact that are disputed by the
non-moving party must be followed by a specific reference to those portions of the evidentiary record upon which the
dispute is based. All material facts set forth in the statement required of the moving party will be deemed to be
admitted for summary judgment purposes unless controverted by the response of the party opposing summary
judgment. (Doc. #3 at 16) (italics emphasis added; bold emphasis in original). Plaintiffs’ response to Defendant’s
Motion for Summary Judgment not only fails to dispute Defendant’s statement of facts, but also it is almost entirely
devoid of record citations. (Doc. #28). Thus, for purposes of summary judgment, Defendant’s version of the facts is
largely undisputed.

Mrs. Allen’s job responsibilities included managing, overseeing, and leasing over four
hundred apartments. (Doc. #22-1 at pp. 35-36). Mrs. Allen also engaged in marketing activities
directed at leasing vacant apartments (Doc. #22-1 at p. 35), and had general oversight and managerial
responsibilities in operating Broadmoore Gardens (Doc. #22-1 at pp. 35-36; Doc. #22-2). Mrs. Allen
supervised maintenance staff, her assistant, and contract laborers. (Doc. #22-1 at pp. 35-36, 51-52).
Notably, Mrs. Allen regularly supervised two or more employees. (Doc. #22-2 at ¶ 12). Mrs. Allen
also performed budgeting and maintained the apartment complex’s books, which included preparing
end-of-month reports, rental reports, and invoices. (Doc. #22-1 at 37). Mrs. Allen had authority to
hire and fire Broadmoore Gardens’ employees. (Doc. #22-1 at 53). She fired at least three
maintenance employees because they did not meet her standards. (Doc. #22-1 at p. 53). Mrs. Allen
also hired her husband as the property’s maintenance supervisor. (Doc. #22-3 at p. 10; Doc. #22-1
at p. 53). Mrs. Allen performed employee evaluations, handled their complaints and grievances, and
set payroll. (Doc. #22-1 at pp. 47, 55-56).
Mrs. Allen was paid an annual salary of $30,000.00 as the property manager on a bi-weekly
rate, the equivalent of $1,153.54 every two weeks, or $576.92 every week. (Doc. #22-2 at ¶ 9; Doc.
#22-1 at p. 39; Doc. #22-4). Fountainbleau required Mrs. Allen to maintain timesheets in order to
track how many hours per week she worked. (Doc. #22-2 at ¶ 10; Doc. #22-1 at pp. 40-41). Her
salary was not subject to reduction because of variations in the quality or quantity of the work
performed. (Doc. #22-2 at ¶ 10).
Fountainbleau terminated Mrs. Allen’s employment on August 5, 2009, for multiple reasons,
including:
a.

Negligence in filling out and approving timesheets;
2

b.

Submitting a personal cable bill to the main office for payment, lying about
personal payments to the cable company, and submitting altered documents
regarding payments made;

c.

Signing an I-9 on employee Ronald Fell on which manager verified [that] the
driver’s license was seen in person and validated; however, this driver’s
license had false information pertaining to date of birth;

d.

Submitting false information to the unemployment office regarding the
resignation of employee Ronald Allen, her husband.

(Doc. #22-2 at ¶ 4; Doc. #22-2 at p. 8-16).
On July 1, 2009, Mr. Allen resigned his employment with Fountainbleau. (Doc. #22-1 at p.
13). In responding to his claim for unemployment benefits, Mrs. Allen submitted false separation
information enabling him to be approved for benefits. (Doc. #22-2 at p. 13). Thereafter,
Fountainbleau appealed, and the State of Alabama Department of Industrial Relations determined
that Mrs. Allen had submitted false information and, in fact, Mr. Allen had resigned and was
ineligible for unemployment benefits. (Doc. #22-2 at p. 13).
Fountainbleau reprimanded Plaintiff on July 6, 2009, for submitting incorrect time reports.
She was warned the another infraction would result in her termination. (Doc. #22-2 at p. 10). On
July 16, 2009, a Non-Compliance Form was issued regarding Mrs. Allen’s failure to turn in over 13
invoices for payment. (Doc. #22-2 at p. 12). On August 4, 2009, another Employee NonCompliance form was issued related to Plaintiff’s submission of another incorrect time sheet. (Doc.
#22-2 at p. 11). The following day, on August 5, 2009, Mrs. Allen’s employment was terminated.
(Doc. #22-2 at pp. 8-9).
Following Mrs. Allen’s termination, she, too, filed a claim for unemployment benefits. The
claim was denied. (Doc. #22-2 at p. 15). In Mrs. Allen’s case, after a formal hearing, the State of
3

Alabama Department of Industrial Relations determined that Fountainbleau had discharged Mrs.
Allen for actual and deliberate misconduct committed in connection with work after previous
warnings. (Doc. #22-2 at pp. 15-16).
As the property manager, Mrs. Allen and her husband occupied an apartment above the
leasing office. (Doc. #22-1 at p. 79; Doc. #22-2 at ¶ 13). Theirs was the only apartment above the
leasing office, and was accessible by an exterior staircase used only by Mrs. Allen and her husband.
(Doc. #22-2 at ¶ 13). The provision to the Allens of that apartment lease was contingent on Mrs.
Allen’s employment and she was required to vacate upon her termination on August 5, 2009. (Doc.
#22-2 at ¶¶ 3, 13).
Over two weeks after her termination, on August 23, 2009, Mrs. Allen was in the process of
moving out of the apartment. (Doc. #22 at pp. 77, 79, 83-84, 90). She was carrying a box down the
staircase and she claims the portion of a step that overhangs a riser broke causing her to fall and
injure her ankle. (Doc. #22- at pp. 77, 79, 83-84, 90; Doc. #22-5; Doc. #22-3 at p. 34). Mr. Allen
did not witness Mrs. Allen’s fall. (Doc. #22-3 at p. 36). Neither of the Allens took any pictures of
the broken step or kept the piece of broken wood. (Doc. #22-3 at p. 35; Doc. #22-1 at p. 78).
In her deposition, Mrs. Allen testified she thought the staircase was unsafe since the day they
moved in the apartment:
Q.

Would you agree with him (Mr. Allen), from day one that you moved in, that
you thought the steps were unsafe?

A.

Yes.

Q.

And how would you describe them as being unsafe?

A.

When you would step on them, they would move, they would creak. When
you would step up and step, they would shake.
4

Q.

Okay. And you agree with him that you would go up and down these steps
multiple times a day.

A.

Yes.

(Doc. #22-1 at pp. 79-80).
Mr. Allen, who was the maintenance supervisor responsible for monitoring the property for
needed repairs and executing work orders, also believed the staircase was unsafe since the day they
moved in the apartment. (Doc. #22-3 at pp. 24, 27). Mr. Allen repeatedly warned his wife about the
staircase. (Doc. #22-3 at pp. 24, 27). Indeed, in his deposition, he testified as follows:
Q.

During that period of time from March or April 2009 until August 2009,
(move-in date) you would have walked up and down those steps several times
a day. Would that be fair to say?

A.

Yes, sir.

Q.

And each time you walked up and down those steps during that period of
time you were concerned that the steps were unsafe.

A.

Yes, sir.

Q.

And I think we already established you discussed that fact with your wife?

A.

Yes, sir.

(Doc. #22-3 at pp. 42, 43).
Although Mr. Allen was the maintenance supervisor, he never repaired the staircase. Doc.
#22-3 at pp. 20-22).
Mrs. Allen had complained about the staircase prior to her accident, and Fountainbleau sent
someone to repair the staircase and install additional braces. (Doc. #22-1 at pp. 81-82; Doc. #22-3
at pp. 27, 29-30). Mr. and Mrs. Allen believed the staircase remained unsafe even after the repairs
were made. (Doc. #22-1 at pp. 81-82; Doc. #22-3 at pp. 27, 29-30).
5

The following two facts are also undisputed. First, Fountainbleau could have moved Mrs.
Allen and her husband to another apartment if they had requested such a move. (Doc. #22-2 ¶ 14).
Second, Fountainbleau was not aware during Mrs. Allen’s employment that she believed that it was
not paying her proper wages under the FLSA, or that she had made such a complaint. (Doc. #22-2
at ¶ 6).
II.

Standard of Review
Under Federal Rule of Civil Procedure 56(c), summary judgment is proper “if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party asking
for summary judgment always bears the initial responsibility of informing the court of the basis for
its motion and identifying those portions of the pleadings or filings which it believes demonstrate
the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. Once the moving party
has met its burden, Rule 56(e) requires the non-moving party to go beyond the pleadings and by her
own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate
specific facts showing that there is a genuine issue for trial. See id. at 324.
The substantive law will identify which facts are material and which are irrelevant. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All reasonable doubts about the facts
and all justifiable inferences are resolved in favor of the non-movant. See Fitzpatrick v. City of
Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). A dispute is genuine “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. If the

6

evidence is merely colorable, or is not significantly probative, summary judgment may be granted.
See id. 249.
“To be admissible in support of or in opposition to a motion for summary judgment, a
document must be authenticated by and attached to an affidavit that meets the requirements of Rule
56(e) and the affiant must be a person through whom the exhibits could be admitted into evidence.”
Saunders v. Emory Healthcare, Inc., 360 F. App’x 110, 113 (11th Cir. 2010) (citing 10 A Charles
Allen Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil § 2722,
at 382-84 (3d ed.1998)).
Furthermore, the “liberal pleading standard for civil complaints under Federal Rule of Civil
Procedure 8(a) ... does not afford plaintiffs with an opportunity to raise new claims at the summary
judgment stage.” Gilmour v. Gates, McDonald and Co., 382 F.3d 1312, 1315 (11th Cir. 2004). “At
the summary judgment stage, the proper procedure for plaintiffs to assert a new claim is to amend
the complaint in accordance with Fed.R.Civ.P. 15(a). A plaintiff may not amend her complaint
through argument in a brief opposing summary judgment.” Gilmour, 382 F.3d at 1315 (citing
Shanahan v. City of Chicago, 82 F.3d 776, 781 (7th Cir. 1996)).
The claims before the court in this case are those set forth by Plaintiffs in their original
Complaint. (Doc. #1 at pp. 9-15).2
III.

Analysis

2

Plaintiffs filed an Amended Complaint on February 29, 2012. (Doc. #9). On March 21, 2012, Defendant moved
to dismiss Plaintiffs’ Amended Complaint. (Doc. #10). Plaintiffs failed to respond to the Motion. (Doc. #12). After
a status conference on April 23, 2012, on April 24, 2012, the court ordered Plaintiffs to file an amended complaint on
or before June 4, 2012. Plaintiffs failed to file an amended complaint as ordered. (Doc. #15). On June 12, 2012, the
court conducted a status conference at which, despite failing to file an amended complaint as ordered, Plaintiffs
represented to the court that they only planned to pursue the individual claims that were originally filed, i.e., the tort
action for premises liability and the wage and hour claim under the FLSA.

7

A.

Defendant is Entitled to Summary Judgment on Plaintiffs’ Failure to Maintain
Premises in a Safe Condition Claim

It is well-settled that “the duty owed by [a] landowner to a person injured on his premises
because of a condition on the land is dependent upon the status of the injured party in relation to the
land.” Christian v. Kenneth Chandler Constr. Co., 658 So.2d 408, 410 (Ala. 1995). “‘The three
classifications of persons coming onto the land are trespasser, licensee, and invitee ... . In order to
be considered an invitee, the plaintiff must have been on the premises for some purpose that
materially or commercially benefitted the owner or occupier of the premises.’” Ex parte Mountain
Top Indoor Flea Market, Inc., 699 So.2d 158, 161 (Ala. 1997) (quoting Sisk v. Heil Co., 639 So.2d
1363, 1365 (Ala. 1994)). “One who enters the land of another, with the landowner’s consent, to
bestow some material or commercial benefit upon the landowner is deemed an invitee of the
landowner.” Davidson v. Highlands United Methodist Church, 673 So.2d 765, 767 (Ala.Civ.App.
1995); see also Restatement (Second) of Torts § 332 (1965). “On the other hand, a person who
enters the land of another with the landowner’s consent or as the landowner’s guest, but without a
business purpose, holds the legal status of a licensee.” Davidson, 673 So.2d at 767; see also
Restatement (Second) of Torts § 330 (1965).
A landowner owes an invitee a duty to keep the premises in a reasonably safe
condition and, if the premises are unsafe, to warn the invitee of defects and dangers
that are known to the landowner but are unknown or hidden to the invitee; a
landowner owes a licensee a duty to abstain from willfully or wantonly injuring the
licensee and to avoid negligently injuring the licensee after the landowner discovers
a danger to the licensee.
Prentiss v. Evergreen Presbyterian Church, 644 So.2d 475, 477 (Ala. 1994).
Defendant argues that, because her employment had undisputedly already been terminated,
Mrs. Allen was a licensee at the time she allegedly fell on the steps. (Doc. #22 at 24). Although the
8

Allens now argue that she was an invitee (Doc. #28 at p.-10), the Complaint alleges that she was a
licensee (Doc. #1 at p. 11). This distinction is of no moment as whether Mrs. Allen was an invitee
or a licensee is not controlling. In either event, there was no duty to warn. First, “[o]ne has no duty
to warn a licensee of open and obvious defects.” Tuders v. Kell, 739 So.2d 1069, 1076 (Ala. 1999)
(citing Williams v. Bruno’s, Inc., 632 So.2d 19 (Ala. 1993)). Second, a premises owner also has no
duty to warn an invitee of open and obvious defects in the premises, which the invitee is aware of
or should be aware of through the exercise of reasonable care.”3 Freeman v. Freeman, 67 So.3d 902,
905 (Ala.Civ.App. 2011).
Mrs. Allen testified that she believed the staircase was unsafe from the day she moved into
the apartment. (Doc. #22-1 at pp. 79-80). Mr. Allen, who was the maintenance supervisor
responsible for monitoring the property for needed repairs and executing work orders, also believed
the staircase was unsafe since the day they moved in the apartment. (Doc. #22-3 at pp. 24, 27). Mr.
Allen repeatedly warned his wife about the staircase. (Doc. #22-3 at pp. 24, 27, 42-43). Mr. and
Mrs. Allen believed the staircase remained unsafe even after the repairs and bracing. (Doc. #22-1
at pp. 81-82; Doc. #22-3 at pp. 27, 29-30). Thus, it is undisputed that Plaintiffs were, in fact, aware
of the alleged dangerous condition of the steps before Mrs. Allen’s fall.
“A condition is open and obvious when it is known to the [plaintiff] or should have been
observed by the [plaintiff] in the exercise of reasonable care. ... The entire basis of [a premises
owner’s] liability rests upon [its] superior knowledge of the danger which causes the [plaintiff’s]

3

Moreover, even assuming for the sake of argument that Mrs. Allen was an invitee, “[t]he entire basis of an invitor’s
liability rests upon his superior knowledge of the danger which causes the invitee’s injuries. If that superior knowledge
is lacking, the invitor cannot be held liable.” Freeman, 67 So.3d at 905 (citing Harding v. Pierce Hardy Real Estate,
628 So.2d 461 (Ala. 1993)).

9

injuries. Therefore, if that superior knowledge is lacking, as when the danger is obvious, the
[premises owner] cannot be held liable.” Powell v. Piggly Wiggly Alabama Distributing Co., Inc.,
60 So.3d 921, 926 (Ala.Civ.App. 2010) (quoting Horne v. Gregerson’s Foods, Inc., 849 So.2d 173,
176 (Ala.Civ.App. 2002) (in turn quoting Denmark v. Mercantile Stores Co., 844 So.2d 1189, 1194
(Ala. 2002)) (internal quotation marks and citation omitted).
The Allens have both admitted that they were aware of the danger posed by the staircase at
issue. According to their testimony it was an open and obvious danger that Mrs. Allen should have
recognized, and that, by her own admission, she did recognize. Therefore, Defendant is entitled to
summary judgment on Mrs. Allen’s failure to maintain premises claim, as well as Mr. Allen’s
derivative loss of consortium claim. See W.G. Yates & Sons, Inc. v. Burkhardt, 61 So.3d 1095, 1099
(Ala.Civ.App. 2010) (Defendant entitled to judgment as a matter of law on the issue of open and
obvious danger where plaintiff admitted awareness of the danger presented.).
B.

Defendant is Entitled to Summary Judgment on Mrs. Allen’s FLSA Claims4
1.

Mrs. Allen Has Not Shown She was Entitled to Overtime Compensation

As a general rule, the FLSA provides that employees are entitled to receive overtime pay at
one and one-half times their regular rate for all hours worked in excess of forty per week. See 29
U.S.C. § 207(a)(1). The FLSA exempts from its overtime pay requirements “any employee
employed in a bona fide executive, administrative, or professional capacity.” See 29 U.S.C. §
213(a)(1). The exemption is an affirmative defense, as to which the employer has the burden of
proof. See Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 594 (11th Cir. 1995).

4

Although Plaintiffs’ Brief appears to argue that Mr. Allen also has an FLSA claim (Doc. #28 at pp. 6-7), no such
claim is stated in the Complaint. (Doc. #1 at pp. 13-14).

10

“The statute of limitations for claims seeking unpaid overtime wages generally is two years,
but if the claim is one ‘arising out of a willful violation,’ another year is added to it.” Alvarez Perez
v. Sanford-Orlando Kennel Club, Inc., 515 F.3d 1150, 1162 (11th Cir. 2008) (quoting 29 U.S.C. §
255(a)). “To establish that the violation of the Act was willful in order to extend the limitations
period, the employee must prove by a preponderance of the evidence that his employer either knew
that its conduct was prohibited by the statute or showed reckless disregard about whether it was.”
Id. at 1162-63 (citing McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133, 108 S.Ct. 1677, 100
L.Ed.2d 115 (1988)).
There is no doubt that Mrs. Allen’s FLSA claim is time barred unless she can establish a
willful violation. The last day Mrs. Allen worked for Defendant was August 5, 2009. (Doc. #1 at
p. 10, ¶ 8). However, her Complaint was not filed until August 22, 2011, over two years later. (Doc.
#1 at p. 9). Thus, for her claim to proceed, Mrs. Allen must not only establish an FLSA violation,
but also that it was willful.
To establish a prima facie case of liability for unpaid overtime compensation under the
FLSA, Plaintiff must demonstrate that: (1) Defendant employed her; (2) Defendant is an enterprise
engaged in interstate commerce covered by the FLSA (or Plaintiff is otherwise covered under
FLSA); (3) Plaintiff actually worked in excess of a 40-hour workweek; and (4) Defendant did not
pay any overtime wages to him/her. Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1277 n.
68 (11th Cir. 2008). A Plaintiff must establish ‘as a matter of just and reasonable inference’ the
amount and extent of his work in order to demonstrate that he was inadequately compensated under
the FLSA.” Ekokotu v. Federal Express Corp., 408 Fed. Appx. 331, 340 (11th Cir. 2011) (quoting
Caro-Galvan v. Curtis Richardson, Inc., 993 F.2d 1500, 1513 (11th Cir. 1993)).
11

Mrs. Allen has failed to meet her initial burden of proof in this case that a violation occurred.
It is well-established that an employee who brings an action under the FLSA for unpaid overtime
compensation has the initial burden of proving that she performed work for which she was
improperly compensated. See Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687-88 (1946),
superseded by statute on other grounds as stated in Carter v. Panama Canal Co., 463 F.2d 1289,
1293 (D.C. Cir. 1972). Mrs. Allen has presented absolutely no evidence that she ever worked over
forty hours. Plaintiffs’ brief asserts that “Plaintiff Brenda Allen often worked more than 40 hours
per week.” However, this statement is not followed by a citation to the record, nor does any of the
evidence submitted in support of Plaintiffs’ motion establish this fact. Thus, Mrs. Allen has failed
to carry her burden of proof as to the third element of her prima facie case, i.e., that she ever worked
over forty hours per week.
2.

Mrs. Allen Was an Exempt Employee

Fountainbleau is entitled to summary judgment on Mrs. Allen’s wage claim for another (and
alternative) reason. Even if Mrs. Allen could establish that she had worked over forty hours in a
week, she was an exempt employee. An exemption from the overtime pay requirement exists for
employees in a “bona fide executive, administrative, or professional capacity” as defined by FLSA
regulations. 29 U.S.C. § 213(a)(1). The Code of Federal Regulations defines executive employees
as those (1) who receive compensation “of not less than $455 per week”; (2) whose “primary duty”
is management of the enterprise in which the employee is employed or a customarily recognized
department or subdivision thereof; (3) who customarily and regularly directs the work of two or more
other employees; and (4) who has the authority to hire or fire other employees or whose suggestions

12

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. § 541.100(a).
Mrs. Allen managed, oversaw, and leased an apartment building with over four hundred
apartments. (Doc. #22-1 at pp. 35-36; Doc. #22-2). She regularly supervised two or more
employees, including maintenance staff, her assistant, and contract laborers. (Doc. #22-1 at pp. 3536, 51-52; Doc. #22-2 at ¶ 12). Mrs. Allen also performed budgeting and maintained the apartment
complex’s books, which included preparing end-of-month reports, rental reports, and invoices.
(Doc. #22-1 at p. 37). She had authority to hire and fire Broadmoore Gardens’ employees. (Doc.
#22-1 at 53). She fired at least three maintenance employees because they did not meet her
standards. (Doc. #22-1 at p. 53). Mrs. Allen also hired her husband to work as the property’s
maintenance supervisor. (Doc. #22-3 at p. 10; Doc. #22-1 at p. 53). Mrs. Allen performed employee
evaluations, handled employee complaints and grievances, and set payroll. (Doc. #22-1 at pp. 47,
55-56).
Mrs. Allen was paid an annual salary of $30,000.00, the equivalent of $1,153.54 every two
weeks, or $576.92 every week, an amount more than the $455 per week threshold. (Doc. #22-2 at
¶ 9; Doc. #22-1 at p. 39; Doc. #22-4). Although Fountainbleau required Mrs. Allen to maintain
timesheets in order to track how many hours per week she worked, her salary was not subject to
reduction because of variations in the quality or quantity of the work performed. (Doc. #22-2 at ¶
10; Doc. #22-1 at pp. 40-41).
In Diaz v. Team Oney, Inc., 291 Fed. Appx. 947 (11th Cir. 2008), an assistant manager
performing manual labor was found to be exempt. In that unpublished opinion, there was evidence
that the managerial functions were the most important, and that the plaintiff made recommendations
13

as to hiring and firing, conducted the first interview of applicants, and was in charge of the store for
the majority of his shifts, except when the store manager was present for a few hours. Id. at *3.
Here, Mrs. Allen was paid “not less than $455 per week.” Her “primary duty” was
management of a 400 unit apartment complex. She customarily and regularly directed the work of
two or more other employees. Finally, she had the authority to hire and fire other employees (or, at
the very least, her suggestions and recommendation as to hiring and firing were given particular
weight). The undisputed evidence in the Rule 56 record establishes that Plaintiff was an exempt
employee. See 29 C.F.R. § 541.100(a). Therefore, Defendant is entitled to summary judgment on
Ms. Allen’s overtime claim under the FLSA, not only because she has failed to establish a violation,
but also because her claims are time barred. If there was no violation, there could not have been a
willful violation to extend the statute of limitations.
3.

Mrs. Allen Has Failed to Establish an Actionable Retaliation Claim

Plaintiffs’ Complaint appears to assert a retaliation claim under the FLSA on behalf of Mrs.
Allen. (Doc. #1 at p. 14). Defendant moved for summary judgment on this claim. (Doc. #22 at pp.
20-23). Plaintiffs’ opposition to Defendant’s Motion fails to address the purported FLSA retaliation
claim. Therefore, Plaintiffs have abandoned this claim. See, e.g., Adkins v. Christie, 491 Fed.Appx.
996, 998 (11th Cir. 2012) (district court did not err in dismissing plaintiff’s claim because he failed
to respond to defendant’s motion for summary judgment on that issue); Resolution Trust Corp. v.
Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (en banc) (“[T]he onus is upon the parties to
formulate arguments; grounds alleged in the complaint but not relied upon in summary judgment are
deemed abandoned.”); Coal. for the Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d

14

1301, 1326 (11th Cir. 2000) (stating that the “failure to brief and argue this issue during the
proceedings before the district court is grounds for finding that the issue has been abandoned”).
In any event, even if Plaintiffs had not abandoned this claim, Defendant is entitled to
summary judgment because Mrs. Allen failed to establish a prima face case. “A prima facie case of
FLSA retaliation requires a demonstration by the plaintiff of the following: ‘(1) she engaged in
activity protected under [the] act; (2) she subsequently suffered adverse action by the employer; and
(3) a causal connection existed between the employee’s activity and the adverse action.’” Wolf v.
Coca-Cola Co., 200 F.3d 1337, 1342-43 (11th Cir. 2000).
First, Mrs. Allen has presented no evidence of protected activity. Plaintiff’s Complaint
alleged, generally, that “Brenda J. Allen was discharged from her employment by Defendants for her
whistle-blowing activities including challenging of improper payment to employees including herself
under the Fair Labor Standards Act.” (Doc. #1 at p. 14). However, Plaintiffs have pointed to
nothing in the Rule 56 record establishes any such “whistle-blowing activities.” Nor has any
evidence been submitted that Mrs. Allen ever complained about her pay, or anyone else’s pay, under
the FLSA. Therefore, Mrs. Allen has failed to present evidence to support the first element of her
prima facie case.
The Rule 56 record contains evidence that Mrs. Allen suffered an adverse employment
action, the second element of her prima facie case. Nevertheless, even if the record contained
sufficient evidence to establish the third element, causation, Plaintiffs’ brief does not even attempted
to show pretext and the record does not support such a finding. If the employer asserts a legitimate
reason for the adverse action, the plaintiff may attempt to show pretext. Wolf, 200 F.3d at 1343. In
demonstrating causation, the plaintiff must prove that the adverse action would not have been taken
15

“but for” the assertion of FLSA rights. Wolf, 200 F.3d at 1343; see also Reich v. Davis, 50 F.3d 962,
965-66 (11th Cir. 1995).
Defendant articulated multiple reasons for terminating Mrs. Allen’s employment, including:
a.

Negligence in filling out and approving timesheets;

b.

Submitting a personal cable bill to the main office for payment, lying about
personal payments to the cable company, and submitting altered documents
regarding payments made;

c.

Signing an I-9 on employee Ronald Fell on which manager verified the
driver’s license was seen in person and validated; however, this driver’s
license had false information pertaining to date of birth;

d.

Submitting false information to the unemployment office regarding the
resignation of employee Ronald Allen, her husband.

(Doc. #22-2 at ¶ 4; Doc. #22-2 at p. 8-16).
Plaintiffs have presented no argument related to Mrs. Allen’s retaliation claim, and thus have
not argued that Defendant’s stated reasons for Mrs. Allen’s termination were a pretext for FLSA
retaliation. Moreover, following her termination, Mrs. Allen filed a claim for unemployment
benefits, which was denied. (Doc. #22-2 at p. 15). After a formal hearing regarding her termination,
the State of Alabama Department of Industrial Relations determined that Defendant had terminated
Mrs. Allen’s employment for actual and deliberate misconduct committed in connection with work
after previous warnings. (Doc. #22-2 at pp. 15-16). Although this finding is not binding on this
court, the finding combined with Plaintiffs’ utter failure to even attempt to prosecute this claim at
the summary judgment stage leads the court to the conclusion that Defendant is entitled to summary
judgment on Mrs. Allen’s FLSA retaliation claim.

16

IV.

Conclusion
For the foregoing reasons, Defendant Fountainbleau Management Services LLC’s Motion

for Summary Judgment (Doc. #22) is due to be granted. The court will issue a separate order
consistent with this Memorandum Opinion.
DONE and ORDERED this

20th

day of May, 2013.

___________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

17