Sorton v. Eidolon Analytic, Inc.

Filing 43

OPINION AND ORDER denying 33 Motion for summary judgment. Signed by Judge John E. Steele on 1/11/2017. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DAVID SORTON,
Plaintiff,
v.

Case No: 2:16-cv-129-FtM-99MRM

EIDOLON ANALYTIC, INC., a
Florida profit corporation,
GINA HYON, Individually, and
CRYSTAL
SCHAEFER,
Individually,
Defendants.
OPINION AND ORDER
This matter comes before the Court on defendants Eidolon
Analytic, Inc. and Gina Hyon’s (collectively, defendants) Motion
for

Summary

Judgment

(Doc.

#33)

filed

on

October

25,

2016. 1

Plaintiff David Sorton (plaintiff or Sorton) filed a response (Doc.
#38) on November 22, 2016.

For the reasons set forth below, the

motion is denied.
I.
A court may grant summary judgment only if satisfied 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.”
R. Civ. P. 56(a).

1

Fed.

A fact is “material” if it goes to “a legal

Defendant Crystal Schaefer was not included as a movant in
defendants’ motion, but her affidavit was filed in support. (Doc.
#35.)

element of the claim under the applicable substantive law” and
thus may impact the case’s outcome.
121 F.3d 642, 646 (11th Cir. 1997).

Allen v. Tyson Foods, Inc.,
“An issue of fact is ‘genuine’

if the record taken as a whole could lead a rational trier of fact
to find for the nonmoving party.”

Hickson Corp. v. N. Crossarm

Co., 357 F.3d 1256, 1260 (11th Cir. 2004).
“The burden of establishing that there is no genuine issue of
material fact lies with the moving party.”

Walker v. Darby, 911

F.2d 1573, 1576 (11th Cir. 1990) (quoting Celotex Corp. v. Catrett,
477 U.S. 317, 322–23 (1986)).

“[O]nce the moving party has met

that burden by presenting evidence which, if uncontradicted, would
entitle it to a directed verdict at trial,” the party opposing
summary judgment must “set forth specific facts showing that there
is a genuine issue for trial.

A mere ‘scintilla’ of evidence

supporting the opposing party’s position will not suffice; there
must be enough of a showing that the jury could reasonably find
for that party.”

Id. at 1576–77.

In ruling on the motion, the

court must view all evidence and draw all reasonable inferences in
favor of the non-moving party.

Scott v. Harris, 550 U.S. 372, 380

(2007); Tana v. Dantanna’s, 611 F.3d 767, 772 (11th Cir. 2010).
Summary judgment should be denied not just where the parties
disagree on issues of material fact, but also “where the parties
agree on the basic facts, but disagree about the factual inferences
that should be drawn from these facts.”

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Warrior Tombigbee Transp.

Co. v. M/V Nan Fung, 695 F.2d 1294, 1296 (11th Cir. 1983); see
also Allen v. Bd. of Pub. Educ., 495 F.3d 1306, 1315 (11th Cir.
2007) (“If a reasonable fact finder evaluating the evidence could
draw more than one inference from the facts, and if that inference
introduces a genuine issue of material fact, then the court should
not grant summary judgment.”).

Put simply, if the resolution of

a material fact or the inference to be drawn therefrom presents a
“he said, she said” scenario, and if the record has evidence
genuinely supporting both sides of the story, then summary judgment
is not appropriate.
II.
Plaintiff filed a one-count Amended Complaint (Doc. #22)
alleging that defendants violated the Fair Labor Standards Act
(FLSA), 29 U.S.C. §§ 201–19, by failing to properly compensate him
for overtime hours worked in excess of 40 hour per week.

Plaintiff

seeks compensation, liquidated damages, and reasonable attorney’s
fees.
The

following

facts

are

undisputed:

Defendants

hired

plaintiff to work as a Fabricator of commercial signs by entering
a contract for employment dated June 30, 2014. 2

Plaintiff earned

an annual salary of $46,800 and voluntarily left employment in
December of 2015.

Defendant Gina Hyon (Hyon) is the president of

2

Plaintiff admits that there was a contract but does not
recognize his signature on the contract.

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Eidolon Analytic, Inc.

Other employees worked with plaintiff in

the fabrication department, but plaintiff had the most experience
as a fabricator by a considerable number of years.

Therefore,

plaintiff had the authority to direct other employees in the
fabrication

department

and

he

trained

them.

Plaintiff

was

responsible for selecting the materials needed for each job and
had access to a business charge card for purchases.

As far as

plaintiff’s duties go, he would receive work orders for a sign and
build

it,

which

included

cutting,

bending,

sanding,

welding,

painting, loading the sign onto a truck upon completion, and
installing

it

at

a

job

fabrication department.

site.

He

would

also

clean

up

the

Hyon, as president, was in charge of

hiring, firing, overseeing payroll, setting wages, and reviewing
billing records for the company.
Defendants

argue

they

are

entitled

to

summary

judgment

because plaintiff qualifies as an “executive” employee under the
FLSA and is thus exempt from the FLSA’s overtime wage requirements.
Defendants also argue that plaintiff is not entitled to liquidated
damages because the company was acting in good faith when it did
not pay plaintiff overtime.

Defendants also assert that because

there is no willful violation, the two-year statute of limitations
has run on plaintiff’s claims.

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III.
Congress enacted the FLSA to ensure a “minimum standard of
living necessary for health, efficiency, and general well being .
. .” for workers in the United States.

29 U.S.C. § 202(a).

The

FLSA mandates that an employee who is “engaged in interstate
commerce” must be paid an overtime wage of one and one-half times
his regular rate for all hours he works in excess of forty hours
per week.

29 U.S.C. § 207(a).

If a covered employee is not paid

the statutory wage, the FLSA creates for that employee a private
cause of action against his employer for the recovery of unpaid
overtime wages and back pay.

Id. at § 216(b).

Certain exceptions

exist, but the Eleventh Circuit has recognized the Supreme Court’s
“admonition

that

exceptions.”

Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233

(11th Cir. 2008).

courts

closely

circumscribe

the

FLSA’s

Any exemptions to the FLSA overtime requirement

are to be construed narrowly, against the employer.

Id. (internal

citations omitted).

Defendants bear the burden of proving the

executive exemption.

Id. at 1269.
IV.
A. Executive Exemption

The executive exemption at issue here provides that the FLSA’s
requirements “shall not apply with respect to . . . any employee
employed in a bona fide executive . . . capacity.”
213(a)(1).

Id. at §

“Congress expressly authorized the Secretary of Labor

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to

define

the

scope

of

the

executive,

administrative,

professional employee exemptions [in section 213(a)(1)].”

and
Avery

v. City of Talladega, 24 F.3d 1337, 1340 (11th Cir. 1994) (citation
omitted).
weight

“Such legislative regulations are given controlling

unless

they

are

arbitrary,

capricious,

or

manifestly

contrary to the statute.’” Id. (quoting Chevron, U.S.A., Inc. v.
Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984)); see
also Morgan, 551 F.3d 1233.
The term “employee employed in a bona fide executive capacity”
means any employee:
(1)

Compensated on a salary basis at a rate of not less
than $455 per week . . .;

(2)

Whose primary duty is management of the enterprise
in which the employee is employed . . .;

(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 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).

Generally, “management” includes:

interviewing, selecting, and training of employees;
setting and adjusting their rates of pay and hours of
work; directing the work of employees; maintaining
production or sales records for use in supervision or
control;
appraising
employees’
productivity
and
efficiency for the purpose of recommending promotions or
other changes in status; handling employee complaints
and grievances; disciplining employees; planning the
work;
determining
the
techniques
to
be
used;
apportioning the work among the employees; determining

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the type of materials, supplies, machinery, equipment or
tools to be used or merchandise to be bought, stocked
and sold; controlling the flow and distribution of
materials or merchandise and supplies; providing for the
safety and security of the employees or the property;
planning and controlling the budget; and monitoring or
implementing legal compliance measures.
Id. at § 541.102.
The parties agree that the first element of the executive
exemption test — the amount of salary — is met, but they dispute
the remaining elements.
carried

their

burden

The Court finds that defendants have not
of

demonstrating

that

Sorton

was

an

“executive” employee under Section 541.100 since most of his duties
are not within the description of “management” as set forth in §
541.102.

For example, he did not interview potential employees

for the fabrication department, nor did he select the potential
fabricators.

The

parties

dispute

whether

plaintiff

had

the

authority to make recommendations as to the hiring, promotion,
firing, or salary of an employee.

Furthermore, Sorton did not

plan or control any budgets, nor did he monitor legal compliance
measures.
In sum, defendants assert few responsibilities that Sorton
arguably possessed that might point to management as his primary
duty.

Rather, defendants principally rely on Hyon’s disputed

testimony that plaintiff was a supervisor over other employees in
the fabrication department and made executive decisions for the

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company regarding those employees. 3

Importantly, for summary

judgment purposes, Sorton disputes that he had such authority.
Defendants

point

to

no

evidence

that

authority or was asked to do so.

Sorton

ever

used

such

The fact that plaintiff spent

some time training others in the fabrication department does not
support summary judgment for the defendants.
Regulations

is

helpful

in

this

regard

The Code of Federal

through

the

following

illustration:
[A] relief supervisor or working supervisor whose
primary duty is performing nonexempt work on the
production line in a manufacturing plant does not become
exempt merely because the nonexempt production line
employee occasionally has some responsibility for
directing the work of other nonexempt production line
employees when, for example, the exempt supervisor is
unavailable. Similarly, an employee whose primary duty
is to work as an electrician is not an exempt executive
even if the employee also directs the work of other
employees on the job site, orders parts and materials
for the job, and handles requests from the prime
contractor.
29 C.F.R. § 541.106(c).
Even if Sorton did perform management functions, defendants
have not demonstrated undisputed facts that management was his
“primary

duty.”

The

Code

of

Federal

3

Regulations

state

that

Defendants also point to plaintiff’s title in his employment
contract, which was “Supervisor of Operations and Fabrication,” as
support for their argument that he performed management duties.
(Doc. #33-2.) But “[w]hen it comes to deciding whether an employee
is an executive within the meaning of the FLSA, the answer is in
the details.” Rodriguez v. Farm Stores Grocery, Inc., 518 F.3d
1259, 1264 (11th Cir. 2008).

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“primary duty” means “the principal, main, major or most important
duty that the employee performs” and instruct courts to analyze
the following factors in assessing whether an employee’s “primary
duty” is management:
(1)

the relative importance of the exempt duties as compared
with other types of duties;

(2)

the amount of time spent performing exempt work;

(3)

the employee’s relative freedom from direct supervision;
and

(4)

the relationship between the employee’s salary and the
wages paid to other employees for the kind of nonexempt
work performed by the employee.

Id. at § 541.700(a).

A “useful guide” in determining whether

exempt work is the primary duty of an employee is if the employee
spends more than 50 percent of his time performing exempt work.
Id. at § 541.700(b).

“Employees who do not spend more than 50

percent of their time performing exempt duties may nonetheless
meet the primary duty requirement if the other factors support
such a conclusion.”
the

character

of

Id.
the

The determination must be made based on

employee’s

job

performance

of

as

a

whole.

Id.

at

§

541.700(a).
“[A]n

employee’s

nonexempt

work

does

not

preclude the exemption if the employee’s primary duty remains
management.

Similarly, an employee whose primary duty is to

perform nonexempt work does not become exempt merely because she
has some responsibility for occasionally directing the work of

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nonexempt employees.”

Morgan, 551 F.3d at 1268.

Whether the

employee meets the requirements of the executive-exemption test
under § 541.100 when the employee performs concurrent duties is
determined on a case-by-case basis after an analysis of the facts
set forth in § 541.700(a) as to the primary duty question.

Id.

at 1268-69.
Here, defendants have not shown undisputed facts that Sorton
spent over 50 percent of his time performing management duties,
nor that he spent less than 50 percent of his time performing
management duties.

29 C.F.R. § 541.700(b).

Although defendant

Hyon testified that plaintiff had broad authority over the company,
she did not testify as to what amount of time he spent on such
management-related tasks.

Importantly, plaintiff denies that he

supervised any employees in the fabrication department or that he
held a management position; denies that he determined what work
was to be done and when; denies that he made any executive
decisions for defendants or that he was asked to do so; denies
that he was free from direct supervision by defendants; and denies
that he could make purchases on behalf of the company without
defendants’ approval.

He has also submitted a Declaration (Doc.

#38-1) stating that he spent approximately 90 percent of this time
fabricating and installing signs for the company’s customers.
Narrowly construing FLSA exemptions, the Court finds that
defendants have failed to demonstrate that the undisputed material

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facts establish that Sorton was a bona fide “executive” employee
and exempt from the FLSA’s overtime wage requirement. 4
B. Liquidated Damages Claim
Defendants also argue that plaintiff’s claim for liquidated
damages should be dismissed because Eidolon’s president, Hyon, was
acting in good faith when she did not pay plaintiff overtime.

In

support, defendants point to Hyon’s testimony wherein she relied
on

a

poster

from

determination.

the

Department

of

Labor

when

making

this

Although defendants ask the Court to dismiss the

claim for liquidated damages, in reality defendants are requesting
that judgment as a matter of law be entered on its affirmative
defense of good faith.

The Court doubts that a summary judgment

motion is appropriate on the issues of good faith and liquidated
damages prior to a determination of liability.

In any event,

there are disputed issues of material fact, and the reasonable
inferences to be drawn from the facts, which preclude summary
judgment.
C. Statute of Limitations
Lastly, defendants argue that because they were acting in
good

faith

in

denying

overtime

compensation

the

statute

of

limitations is two years and thus part of plaintiff’s claim is

4

Because the Court disposes of whether Sorton qualifies as
an exempt “executive” employee under the second prong of the test,
it need not decide whether he satisfies requirements (3) and (4)
under Section 541.100.

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time barred.

Yet, under either a two or three-year statute of

limitations, plaintiff’s claims are not time-barred.

Plaintiff

filed his initial complaint on February 16, 2016 (Doc. #1) and
began his employment less than two years earlier in June of 2014.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
Defendants’ Motion for Summary Judgment (Doc. #33) is DENIED.
DONE and ORDERED at Fort Myers, Florida, this
of January, 2017.

Copies:
Counsel of Record

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11th

day