Erling v. American Grille with Sushi LLC et al

Filing 67

OPINION AND ORDER denying 63 Motion for summary judgment. Signed by Judge John E. Steele on 1/8/2019. (RKR)

Case 2:17-cv-00350-JES-MRM Document 67 Filed 01/08/19 Page 1 of 8 PageID 443

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
TODD ERLING, on behalf of
himself and others similarly
situated,
Plaintiff,
v.

Case No:

2:17-cv-350-FtM-29MRM

AMERICAN GRILLE WITH SUSHI
LLC,
a
Florida
profit
corporation and CHRIS K.
WHITAKER, individually,
Defendants.

OPINION AND ORDER
This matter comes before the Court on the defendants’ Motion
for

Summary

Judgment

(Doc.

#63)

filed

on

December

18,

2018.

Plaintiff filed a Reply to Defendant's Motion for Summary Judgment
(Doc. #65) on December 26, 2018.

For the reasons set forth below,

the motion is denied.
I.
Summary

judgment

is

appropriate

only

when

the

Court

is

satisfied 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).

“An issue of fact is ‘genuine’ if the

record taken as a whole could lead a rational trier of fact to

Case 2:17-cv-00350-JES-MRM Document 67 Filed 01/08/19 Page 2 of 8 PageID 444

find for the nonmoving party.”

Baby Buddies, Inc. v. Toys “R” Us,

Inc., 611 F.3d 1308, 1314 (11th Cir. 2010).

A fact is “material”

if it may affect the outcome of the suit under governing law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

“A

court must decide ‘whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.’”
Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th
Cir. 2004)(citing Anderson, 477 U.S. at 251).
In ruling on a motion for summary judgment, the Court views
all evidence and draws 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).

However, “if

reasonable minds might differ on the inferences arising from
undisputed facts, then the court should deny summary judgment.”
St. Charles Foods, Inc. v. America’s Favorite Chicken Co., 198
F.3d 815, 819 (11th Cir. 1999)(quoting Warrior Tombigbee Transp.
Co.

v.

M/V

Nan

Fung,

695

F.2d

1294,

1296-97

(11th

Cir.

1983)(finding summary judgment “may be inappropriate even where
the parties agree on the basic facts, but disagree about the
factual inferences that should be drawn from these facts”)).

“If

a reasonable fact finder evaluating the evidence could draw more
than one inference from the facts, and if that inference introduces

2

Case 2:17-cv-00350-JES-MRM Document 67 Filed 01/08/19 Page 3 of 8 PageID 445

a genuine issue of material fact, then the court should not grant
summary judgment.”

Allen v. Bd. of Pub. Educ., 495 F.3d 1306,

1315 (11th Cir. 2007).
II.
Defendants argue that summary judgment is warranted because
plaintiff was an exempt employee pursuant to Section 13(a)(1) of
the Fair Labor Standards Act (FLSA).

Plaintiff responds that

defendants have waived this issue by failing to raise it as an
affirmative defense, and in any event, a genuine issue of fact
exists as to the primary duties performed by plaintiff.
Under the FLSA, minimum wage provisions do not apply to “any
employee employed in a bona fide executive, administrative, or
professional capacity. . . .”

29 U.S.C. § 213(a).

An employee

working in a bona fide administrative capacity is defined as one
who is:
(1) Compensated on a salary or fee basis
pursuant to § 541.600 at a rate per week of
not less than the 40th percentile of weekly
earnings of full-time nonhourly workers in the
lowest-wage Census Region. . . 1;
(2) Whose primary duty is the performance of
office or non-manual work directly related to
1

Before December 1, 2016, subsection (a)(1) stated:
“Compensated on a salary or fee basis at a rate of not less than
$455 per week (or $380 per week, if employed in American Samoa by
employers other than the Federal Government), exclusive of board,
lodging or other facilities.” 29 C.F.R. § 541.200.

3

Case 2:17-cv-00350-JES-MRM Document 67 Filed 01/08/19 Page 4 of 8 PageID 446

the management or general business operations
of the employer or the employer's customers;
and
(3) Whose primary duty includes the exercise
of discretion and independent judgment with
respect to matters of significance.
29 C.F.R. § 541.200(a). 2

See also 29 C.F.R. § 541.201(a) (“The

phrase “directly related to the management or general business
operations”

refers

to

the

type

of

work

performed

by

the

employee.”); 29 C.F.R. § 541.202(b) (“The phrase ‘discretion and
independent judgment’ must be applied in the light of all the facts
involved in the particular employment situation in which the
question arises.”).
The “primary duty” “means the principal, main, major or most
important duty that the employee performs. 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.”

29 C.F.R. § 541.700(a).

“An employee

will generally satisfy the primary duty requirement if he spends

2

For an employee employed as a bona fide executive capacity,
the requirements are compensation on a salary basis, with a primary
duty of management of the enterprise, who “customarily and
regularly directs the work of two or more other employees”, and
with “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).

4

Case 2:17-cv-00350-JES-MRM Document 67 Filed 01/08/19 Page 5 of 8 PageID 447

more

than

half

of

his

time

performing

exempt

tasks.

[

]

Nevertheless, employees who do not spend more than 50 percent of
their time performing exempt duties may meet the primary duty
requirement if the other factors support such a conclusion.”
Watkins v. City of Montgomery, 919 F. Supp. 2d 1254, 1260 (M.D.
Ala. 2013) (citing 29 C.F.R. § 541.700(b)).
A. Waiver of Exempt Employee Issue
Plaintiff argues that summary judgment is precluded because
defendant has failed to properly raise the exempt employee issue
in the pleadings. Plaintiff argues that the defense was not raised
as an affirmative defense in response to plaintiff’s Second Amended
Complaint (Doc. #28), and is therefore deemed waived.
Under

Rule

8(c),

“a

affirmative

party

avoidance

or

pleading.

must

defense,”

affirmatively
in

the

first

state

Fed. R. Civ. P. 8(c).

responsive

The purpose of Rule 8(c) is simply to
guarantee that the opposing party has notice
of any additional issue that may be raised at
trial so that he or she is prepared to properly
litigate it. [ ] When a plaintiff has notice
that an affirmative defense will be raised at
trial, the defendant's failure to comply with
Rule 8(c) does not cause the plaintiff any
prejudice. And, when the failure to raise an
affirmative defense does not prejudice the
plaintiff, it is not error for the trial court
to hear evidence on the issue. [ ]

5

any

Case 2:17-cv-00350-JES-MRM Document 67 Filed 01/08/19 Page 6 of 8 PageID 448

Hassan v. U.S. Postal Serv., 842 F.2d 260, 263 (11th Cir. 1988)
(internal citations omitted).
In this case, the plaintiff’s status as an exempt or nonexempt employee was raised at least implicitly in the Second
Amended Complaint.

Plaintiff asserted he, and others who may

become parties, were non-exempt employees in similar positions.
(Doc. #28, ¶20.)

Defendants denied this allegation in their first

responsive pleading.

(Doc. #36, ¶ 20.)

This is sufficient to

satisfy the notice requirement, and allows defendant to raise the
issue in a summary judgment motion.
B. Exempt or Non-Exempt Employee
Defendants assert that the undisputed facts at plaintiff’s
deposition establish that he was an exempt employee, and therefore
summary

judgment

following facts:

should

be

granted.

Defendants

rely

on

the

Plaintiff was a chef 3 that was paid a salary of

$700 per week and was responsible for the following:
1. Creating and establishing a menu for the restaurant;
2. Interviewing and hiring kitchen staff;
3. Training and Supervising the kitchen staff, which included
at least 2 full-time employees;

3

Plaintiff’s job entailed cooking, prepping, and set up.
(Doc. #24-1, ¶ 4.)

6

Case 2:17-cv-00350-JES-MRM Document 67 Filed 01/08/19 Page 7 of 8 PageID 449

4. Ordering food and supplies for the kitchen;
5. Taking inventory of the food and supplies for the kitchen;
6. Managing food costs for the restaurant; and
7. Distributing

work

responsibilities

among

the

kitchen

staff.
(Doc.

#63,

pp.

1-2.)

While

these

facts

support

defendants’

position, they are not the totality of the evidence.
The same deposition established that Plaintiff and the other
chef would prepare a list of items that would be needed for the
next day, and then plaintiff would place the orders for fresh food
at the end of the night for delivery early the next morning.
#62-1, pp. 23-24.)

(Doc.

Plaintiff would arrive first thing in the

morning, and then the other chef would come in at 2:00 in the
afternoon.

Plaintiff would start the stocks for the Ramen noodle

dishes, then they would work on short ribs.

The salad station

prep and the sauces were done by others while plaintiff would cut
the steaks and fresh seafood for the evening.

(Id., pp. 24-25.)

Later, plaintiff would take supply orders, liquor orders.
p. 27.)

(Id.,

When the second chef came in at 2:00 pm, they would do a

walk through the kitchen to check the prep work, and the rest of
the crew would arrive at 3:00 pm.

Plaintiff would leave for an

hour or two to pick up supplies for the night and come back for
the remainder of the evening through around 10:00 pm.

7

The other

Case 2:17-cv-00350-JES-MRM Document 67 Filed 01/08/19 Page 8 of 8 PageID 450

chef would shut down the kitchen.

(Id., p. 28.)

Plaintiff

testified that Chris K. Whitaker constantly brought in new people
that the chefs never even interviewed.

(Doc. #62-1, p. 28.)

These facts support a finding that chef work was the majority
of the duties performed by plaintiff. The facts preclude a finding
that plaintiff’s “primary duty” was management or the performance
of work directly related to management.

Since a genuine issue of

fact exists, summary judgment is precluded.
Accordingly, it is now
ORDERED:
Defendant’s Motion for Summary Judgment (Doc. #63) is DENIED.
DONE AND ORDERED at Fort Myers, Florida, this
January, 2019.

Copies:
Counsel of record

8

8th

day of