Maldonado v. Mattress Firm, Inc. et al

Filing 100

ORDER: Plaintiff's Motion for Summary Judgment (Doc. # 98 ) is GRANTED IN PART AND DENIED IN PART. Defendants shall file an Answer by January 19, 2018. Signed by Judge Virginia M. Hernandez Covington on 1/12/2018. (KAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
LUIS MALDONADO, on
himself
and
those
situated,

behalf of
similarly

Plaintiffs,
v.

Case No. 8:13-cv-292-T-33AEP

CALLAHAN’S EXPRESS DELIVERY,
INC. and PATRICK CALLAHAN,
Defendants.
______________________________/
ORDER
This matter is before the Court pursuant to the Motion
for Summary Judgment (Doc. # 98), which was filed by Luis
Maldonado,

“on

behalf

of

himself

and

those

similarly

situated,” on December 1, 2017. Defendants Patrick Callahan
and Callahan’s Express Delivery, Inc. filed a Response in
Opposition (Doc. # 99) on December 15, 2017. For the reasons
that follow, the Court grants the Motion in part and denies
the Motion in part.
I.

Background
Callahan’s Express Delivery and Callahan contract to make

local delivery of mattresses, furniture, and other goods on
behalf of retail customers, such as Mattress Firm and IKEA.
(Doc. # 98 at 2).

Callahan is “the proprietor of Callahan’s

Express Delivery, Inc.” (Callahan Aff. Doc. # 99-1 at ¶ 2).
Maldonado was employed by Defendants from June of 2011 through

June of 2012. (Maldonado Decl. Doc. # 98-3 at ¶ 5). Maldonado
began his employment as a driver’s helper and then became a
driver. (Id. at ¶ 6).

Throughout his employment, Maldonado

states that he was paid a “piece rate” of $10.00 per delivery.
(Id.). Callahan, on the other hand, asserts that drivers were
paid $20.00 for each completed delivery. (Callahan Aff. Doc.
# 99-1 at ¶ 18). Maldonado signed an “Independent Contractor’s
Agreement” that states, among other things, “The parties’
intention is that Contractor be an independent contractor and
not the employee of the Company and that Contractor retains
sole and absolute discretion in the manner and means [of]
carrying out the services described in [the Agreement].” (Doc.
# 99-1 at 5). The services described in the Agreement are
“driver on a truck, delivering for the Company, and requiring
a two man team.” (Id. at ¶ 1).

Although the Agreement is

dated November 13, 2010, Maldonado states in his declaration
that his employment began in June of 2011. (Maldonado Decl.
Doc. # 98-3 at ¶ 5).
Maldonado

claims

Callahan

told

him

where

Maldonado should report for work. (Id. at ¶ 7).

and

when

“Defendants

and/or their clients gave [Maldonado] a pre-set schedule of .
. . deliveries for the day, and gave [Maldonado] a specific
window of time within which each delivery had to be made.”
(Id. at ¶ 10).

Maldonado indicates he “had no say” with

2

respect to his schedule and he “could not choose where to
work, when to work, the hours of the work, or the number or
location of [the] deliveries each day.” (Id. at ¶ 11).

In

stark

as

contrast,

Callahan

states

that

drivers,

such

Maldonado, “were not required to work any specific days,
times, hours or shifts” and “could choose to work, or not to
work, on a given day depending upon their availability.”
(Callahan Aff. Doc. # 99-1 at ¶¶ 14, 17). All deliveries took
place within the state of Florida. (Maldonado Decl. Doc. # 983 at ¶ 9).
According to Maldonado, he typically worked 12 or more
hours per day between 6 and 7 days a week.

(Id. at ¶¶ 14-15).

Although he routinely worked between 60 and 84 hours per week,
he was not paid overtime compensation. (Id. at ¶¶ 15, 23). He
states that he was required to notify Defendants if he had to
miss a day of work for any reason and faced termination if he
missed scheduled work days. (Id. at ¶ 16). But Callahan avers
that

drivers

“were

not

specifically

required

to

notify

[Callahan] if they were unable to work.” (Callahan Aff. Doc.
# 99-1 at ¶¶ 20-21). And if a driver failed to show up for a
scheduled delivery, “they may not have been utilized for
future services, but were not terminated by [Callahan].” (Id.)
The parties agree that Maldonado supplied some of his own
tools such as “basic hand tools” and his personal cell phone.

3

(Maldonado Decl. Doc. # 98-3 at ¶¶ 20-21).
that

Callahan confirms

Maldonado supplied “necessary tools to perform the job”

such as “screwdrivers, cordless drill, smart phone, drill
bits, and pliers.” (Callahan Aff. Doc. # 99-1 at ¶ 12).
Defendants, on the other hand, supplied 10,000 pound trucks,
fuel, and insurance. (Maldonado Decl. Doc. # 98-3 at ¶ 20).
II.

Procedural History
On January 31, 2013, Maldonado initiated this action by

filing a single-count complaint for violations of the Fair
Labor Standards Act against Mattress Firm, Inc., Callahan’s
Express Delivery, Inc., and Patrick Callahan. (Doc. # 1).
Mattress Firm filed an Answer on March 12, 2013. (Doc. # 20).
The Callahan Defendants filed a Motion to Compel Arbitration
(Doc. # 23) on March 20, 2013.

On April 24, 2013, the Court

granted the Callahan Defendants’ Motion to Compel Arbitration
and directed the parties to advise the Court regarding whether
Maldonado’s claims against Mattress Firm should be stayed
pending resolution of the arbitration proceedings. (Doc. #
34). On April 25, 2013, Mattress Firm filed a separate Motion
requesting that the claims against it also be submitted to
arbitration. (Doc. # 37).

On June 3, 2013, the Court granted

the Motion “to the extent that the Court compels arbitration
of Maldonado’s claim against Mattress Firm.” (Doc. # 50 at
19).

Because all of Maldonado’s claims were ordered to be

4

submitted to arbitration, the Court closed the case on June 3,
2013. (Id.).
Yet, on January 12, 2017, Maldonado filed a Motion to
Reopen the Case. (Doc. # 51).

Maldonado explained that he

filed a Demand for Arbitration with the American Arbitration
Association in order to commence arbitration proceedings
against the Callahan Defendants, but the Callahan Defendants
“repeatedly and willfully refused to comply with the AAA’s
requirements for maintaining a case in arbitration.” (Id. at
2).

Maldonado stated he paid all fees due to the AAA in a

timely manner, but the Callahan Defendants – the parties that
made the demand for arbitration - failed to timely pay the
arbitrator, failed to respond to discovery orders entered in
the arbitration, and unduly delayed the arbitration process.
(Id. at 2-3).

Maldonado submitted to this Court an Order

issued by the AAA on July 27, 2016, reflecting that the
arbitration was administratively closed. (Doc. # 51-1).

On

January 30, 2017, the Court entered an Order denying without
prejudice the Motion to Reopen the Case and requesting more
information regarding the failed arbitration. (Doc. # 52).
On April 18, 2017, Maldonado renewed his Motion to Reopen
the Case. (Doc. # 53).
2017,

reopening

the

The Court entered an Order on May 3,
case

with

respect

to

the

Callahan

Defendants but denying the Motion as to Mattress Firm.

5

(Doc.

# 59).

The Court explained that Maldonado was required to

proceed against Mattress Firm through arbitration and “the
record reflects that no such proceeding was instituted by
Maldonado against Mattress Firm in the almost four years since
the Court compelled arbitration.” (Id. at 4).
With the case reopened as to the Callahan Defendants
only, the Court entered a Fast Track Scheduling Order on May
4, 2017. (Doc. # 60).
filed

a

Notice

Thereafter, on June 2, 2017, Maldonado

reflecting

that

six

individuals

(Johnny

Machado, Ed-Joacin Melendez, Javier Aguilar, Alex Armon, Artis
Patterson, and Mario Calo) executed Consent to Join Collective
Action

forms.

(Doc.

#

63).

Machado

filed

a

declaration

containing statements similar to those made by Maldonado.
(Machado Decl. Doc. # 98-4).

Callahan states Maldonado,

Machado, and Patterson were “independent contractor drivers”
and Armon, Melendez, and Aguilar were “driver’s helpers who
were neither employees nor independent contractors.” (Callahan
Aff. Doc. # 99-1 at ¶¶ 5-6).

Callahan explains that drivers

had the prerogative to hire helpers, and if they did, the
individual drivers, not Defendants, would pay the helpers.
(Id. at ¶ 8).

None of the helpers filed declarations or

affidavits and the parties have not demarcated the difference
between

a

driver

and

a

helper.

Neither

Callahan

nor

Callahan’s Express Delivery filed an Answer to the Complaint

6

and they have not presented any affirmative defenses.
deadline
addition,

for

Defendants

Maldonado

to

has

do
not

so

has

long

moved

for

expired.

The
In

conditional

certification of an opt-in class and issuance of notice under
29 U.S.C. § 216(b).
On June 26, 2017, the parties participated in a mediation
conference but reached an impasse. (Doc. # 70).

On November

8, 2017, the Court issued a Case Management and Scheduling
Order setting a pretrial conference for February 5, 2018, and
a jury trial for the February 2018 trial term. (Doc. # 97).
On December 1, 2017, Maldonado filed a Motion for Summary
Judgment. (Doc. # 98).

The Motion is ripe for the Court’s

review. (Doc. # 99). As explained below, the Court grants the
Motion in part and denies the Motion in part.
III. Legal Standard
Summary judgment is appropriate “if the movant shows 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).

A factual dispute alone is not enough to

defeat a properly pled motion for summary judgment; only the
existence of a genuine issue of material fact will preclude a
grant of summary judgment. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48 (1986).
An issue is genuine if the evidence is such that a

7

reasonable jury could return a verdict for the nonmoving
party.

Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742

(11th Cir. 1996) (citing Hairston v. Gainesville Sun Publ’g
Co., 9 F.3d 913, 918 (11th Cir. 1993)).

A fact is material if

it may affect the outcome of the suit under the governing law.
Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.
1997). The moving party bears the initial burden of showing
the court, by reference to materials on file, that there are
no genuine issues of material fact that should be decided at
trial. Hickson Corp. v. N. Crossarm Co., Inc. 357 F.3d 1256,
1260 (11th Cir. 2004)(citing Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986)). “When a moving party has discharged its
burden,

the

non-moving

party

must

then

‘go

beyond

the

pleadings,’ and by its own affidavits, or by ‘depositions,
answers to interrogatories, and admissions on file,’ designate
specific facts showing there is a genuine issue for trial.”
Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593-94 (11th
Cir. 1995)(citing Celotex, 477 U.S. at 324).
If there is a conflict between the parties’ allegations
or evidence, the non-moving party’s evidence is presumed to be
true and all reasonable inferences must be drawn in the nonmoving party’s favor. Shotz v. City of Plantation, 344 F.3d
1161, 1164 (11th Cir. 2003). If a reasonable fact finder
evaluating the evidence could draw more than one inference

8

from the facts, and if that inference introduces a genuine
issue of material fact, the court should not grant summary
judgment. Samples ex rel. Samples v. City of Atlanta, 846 F.2d
1328, 1330 (11th Cir. 1988). (citing Augusta Iron & Steel
Works, Inc. v. Emp’rs Ins. of Wausau, 835 F.2d 855, 856 (11th
Cir. 1988)). However, if the non-movant’s response consists of
nothing

“more

allegations,”

than
summary

a

repetition

judgment

is

of
not

his

conclusional

only

proper,

but

required. Morris v. Ross, 663 F.2d 1032, 1034 (11th Cir.
1981).
IV.

Analysis
A.

FLSA Enterprise Coverage

Maldonado seeks summary judgment on the issue of whether
the Callahan Defendants are covered by the FLSA.

The FLSA

provides coverage where an enterprise (1) “has employees
engaged

in

commerce

or

in

the

production

of

goods

for

commerce, or that has employees handling, selling or otherwise
working on goods or materials that have been moved in or
produced for commerce by any person;” and (2) “whose annual
gross volume of sales made or business done is not less than
$500,000.” 29 U.S.C. § 203(s)(1)(A)(i)-(ii).

“It has been

firmly established that the phrase ‘engaged in commerce’
within the meaning of the FLSA is to be given a broad, liberal
construction.” DeMaria v. Ryan P. Relocator Co., 512 F. Supp.
9

2d 1249, 1257 (S.D. Fla. 2007)(citing Brennan v. Wilson Bldg.,
Inc., 478 F.2d 1090, 1093 (5th Cir. 1973)).
Maldonado served the Callahan Defendants with discovery
aimed at ascertaining FLSA coverage.

(Doc. ## 98-1, 98-2).

Among other requests, Maldonado requested that Defendants
“[a]dmit that Respondent grossed more than $500,000 in gross
receipts or business done” in 2009-2011. (Doc. # 98-1 at 8-9).
He

also

requested

that

Defendants

“[a]dmit

that

in

the

performance of his work, Claimant regularly handled goods and
materials that originated outside the State of Florida.” (Id.
at 9).
The Callahan Defendants did not respond to the discovery
requests. Maldonado filed a Motion requesting sanctions based
on the Callahan Defendants’ failure to respond to discovery.
(Doc. # 85). In an Order dated November 7, 2017, the Court
granted the Motion for Sanctions and held that Maldonado’s
requests for admissions are deemed admitted.

(Doc. # 96).

Through the Requests for Admissions, which have been deemed
admitted,
Defendants

Maldonado
are

has

covered

by

established
the

FLSA.

that
And,

the

Callahan

tellingly,

in

response to the Motion for Summary Judgment, Defendants did
not raise any arguments aimed at defeating enterprise coverage
under the FLSA.

Thus, the Motion for Summary Judgment is

granted to the extent that the Court finds that Callahan

10

Defendants are an enterprise subject to the coverage of the
FLSA.
B.

Employee vs. Independent Contractor Status

The FLSA’s overtime provisions apply to employees, but
not independent contractors. Perdomo v. Ask 4 Realty & Mgmt,
Inc., 298 F. App’x 820, 821 (11th Cir. 2008). “A determination
of employment status under the FLSA . . . is a question of
law.”

Id.

In

determining

whether

an

individual

is

an

employee, instead of an independent contractor, courts apply
the “economic realities” test.

Scantland v. Jeffry Knight,

Inc., 721 F.3d 1308, 1311-12 (11th Cir. 2013).

This test

requires the Court to “look past the labels the parties apply
to their relationship, and to examine both whether Plaintiff’s
relationship to Defendant is that of a traditional employee
and to what extent Plaintiff is economically dependent upon
Defendants.” Castro v. Sevilla Props., LLC, No. 13-cv-22466,
2013 U.S. Dist. LEXIS 181210, at *6 (S.D. Fla. Dec. 30, 2013).
In the Eleventh Circuit, courts consider the following
factors in determining an individual’s employment status:
(1)
(2)
(3)
(4)

the nature and degree of the alleged
employer’s control as to the manner in which
the work is to be performed;
the alleged employee’s opportunity for profit
or loss depending upon his managerial skill;
the alleged employee’s investment in equipment
or materials required for his task, or his
employment of workers;
whether the service rendered requires a
special skill;
11

(5)
(6)

the degree of permanency and duration of the
working relationship; and
the extent to which the service rendered is an
integral part of the alleged employer’s
business.

Scantland, 721 F.3d at 1312.

No one factor is outcome

determinative, nor is the list exhaustive. Id. “Ultimately, in
considering economic dependence, the court focuses on whether
an individual is ‘in business for himself’ or is ‘dependent
upon finding employment in the business of others.’” Id.
(citing Mednick v. Albert Enters., Inc., 508 F.2d 297, 301-02
(5th Cir. 1975)).
The Court recognizes that the determination of whether an
individual is an employee or an independent contractor is a
legal issue.

Nevertheless, genuine issues of material fact

preclude a ruling on this threshold issue.
1.

Nature and Degree of Control

“The economic reality inquiry requires [the Court] to
examine the nature and degree of the alleged employer’s
control, not why the alleged employer exercised such control.”
Scantland, 721 F.3d at 1316.

The Eleventh Circuit has found

the following factors, among others, relevant to the control
inquiry: “whether the alleged employer (1) had the power to
hire and fire the employee, (2) supervised and controlled
employee work schedules and conditions of employment, (3)
determined the rate and method of payment, and (4) maintained

12

employment records.” Villarreal v. Woodham, 113 F.3d 202, 205
(11th Cir. 1997).
It is undisputed that Callahan hired the drivers, but it
appears the individual drivers had the authority to hire the
driver’s helpers.

Maldonado seeks overtime payments for his

time as both a driver and as a helper. It is not clear whether
the helpers were paid or otherwise employed by Defendants at
all. And, while Maldonado claims that Callahan had the power
to discipline and terminate drivers and helpers, Callahan
characterizes his role differently.

Callahan also claims the

drivers “had no requirements to work any specific number of
hours

and

availability

could
of

work

as

[Callahan’s

their

availability

Express

and

Delivery’s]

dictated.” (Callahan Aff. Doc. # 99-1 at ¶ 19).

the

clients

Maldonado

recounts the situation differently by asserting that Callahan
controlled every aspect of the delivery schedule.

There is

also a dispute regarding the amount paid for deliveries.

In

Solis v. A+ Nursetemps, Inc., No. 5:07-cv-182, 2013 U.S. Dist.
LEXIS 49595 at *18 (M.D. Fla. Apr. 5, 2013), the court
observed that “[i]n an independent contractor relationship,
the independent contractor normally has at least an equal say
in the rate to be charged for particular work by bidding on
the job or by posting or advertising standard rates for the
work to be performed.”

Here, it is not clear whether any

13

driver or driver’s helper had any say in the amount he was
paid.

The issue of employer control is clouded by various

disputes of fact, which preclude summary judgment.
2.

Opportunity for Profit or Loss

Courts may find independent contractor status when a
worker is able to garner additional income or profit through
the exercise of managerial skill or increased efficiency in
the manner or means of accomplishing the work. See Scantland,
721 F.3d at 1316-17. “The opportunity for profit and loss has
more to do with relative investments, with control over larger
aspects of the business, and with like forms of initiative.”
Harrell v. Diamond A Entm’t, 992 F. Supp. 1343, 1351 (M.D.
Fla. Nov. 28, 1997).
The Callahan Defendants argue that Maldonado had the
opportunity to control the number of deliveries he made, the
hours he worked, as well as the choice of whether to hire a
helper. But, Maldonado claims he was completely powerless: “I
did not manage any aspect of my work.

Rather, each day I made

the deliveries I was assigned, during specific windows of
time, and was paid the $10.00 per delivery that Callahan set
as my pay.” (Maldonado Decl. Doc. # 98-3 at ¶ 13).

The

parties’ differing accounts of the relevant facts present a
genuine dispute and a credibility determination is needed.

14

3.

Relative Investments of the Parties

Courts may find independent contractor status when a
worker

invests

in

equipment

or

materials

required

for

completing his tasks, or hires other workers to assist him in
the completion of his tasks. Scantland, 721 F.3d at 1317.
Here, Maldonado did make such investments. It is not disputed
that

Maldonado

supplied

hand

tools

such

as

drills,

screwdrivers, pliers, and a smart phone.
However, when the Court compares the relative investments
of the parties, it appears that this factor weighs in favor of
finding employee status.

See Sakacsi v. Quicksilver Delivery

Sys., No. 8:06-cv-1297-T-24MAP, 2007 U.S. Dist. LEXIS 88747,
at *19 (M.D. Fla. Nov. 28, 2007)(FLSA plaintiff delivery
drivers that supplied their own vehicles, gas, maintenance,
and insurance were still found to be employees because the
defendant provided costly iPAQ devices for scanning supplies
as well as software, an office building and office supplies);
Partridge v. Mosley Motel of St. Petersburg, Inc., No. 8:15cv-936-T-33JSS, 2016 U.S. Dist. LEXIS 1723, at *16 (M.D. Fla.
Jan. 6, 2016)(FLSA plaintiff’s provision of his own drill did
not render him an independent contractor because defendant
supplied the majority of the tools and supplies needed to
carry out the work).

15

4.

Special Skill Required to Perform the Job

“A lack of specialization indicates that an individual is
an employee, not an independent contractor.”

Molina v. S.

Fla. Express Bankserv, Inc., 420 F. Supp. 2d 1276, 1286 (M.D.
Fla. 2006). Further, “[r]outine work which requires industry
and

efficiency

is

not

indicative

of

independence

and

nonemployee status.” Usery v. Pilgrim Equip. Co., 527 F.2d
1308, 1314 (5th Cir. 1976). “Finally, even if an individual
has specialized skills, that is not indicative of independent
contractor status where the individual does not use those
skills in an independent fashion.” Molina, 420 F. Supp. 2d at
1286.
Maldonado generally argues that he provided unskilled
labor. Indeed, in Artola v. MRC Express, Inc., No. 14-cv23219, 2015 U.S. Dist. LEXIS 130183, at *26 (S.D. Fla. Sept.
25, 2015), the court held: “Driving is not a special skill.
Neither is manual labor (loading and unloading vehicles).” See
also Herman v. Express Sixty-Minutes Delivery Serv, 161 F.3d
299, 305 (5th Cir. 1998)(“Express’s drivers clearly depend for
their livelihood on Express.

They are not specialists called

in to solve a special problem, but unskilled laborers who
perform

the

essential,

everyday

chores

of

Express’s

operation.”).
But,

the

Court

recognizes

16

the

Callahan

Defendants’

arguments that delivery drivers “had to be qualified and
skilled in driving delivery trucks” and their duties included
“performing Department of Transportation inspections, general
vehicle inspections, loading such vehicles, and securing the
loads.” (Doc. # 99 at 7). The Court requires more information
regarding this factor to make a determination regarding FLSA
employment

status.

For

instance,

did

Maldonado

need

a

commercial driver’s license to act as a driver or helper? Was
he provided any formal training?

Was he required to spend

time as helper before becoming a driver?

It may be that

drivers are independent contractors and helpers are employees.
More information is needed before these determinations can be
made.
5.

Permanency and Duration of Relationship

In Clincy v. Galardi S. Entertainers, 808 F. Supp. 1326,
1348 (N.D. Ga. 2011), the court indicated that a working
relationship of less than one year is “transient or itinerant”
and signaled independent contractor status.

Maldonado’s

relationship with Defendants lasted for one year. (Maldonado
Decl. Doc. # 98-3 at ¶ 5).

This factor therefore militates

slightly in favor of finding employee status.
6.
Finally,

Integral Services
the

Court

considers

the

extent

to

which

Maldonado’s services were an integral part of the Callahan
17

Defendants’ operations.

“Generally, the more integral the

work, the more likely the worker is an employee, not an
independent contractor.” Robles v. RFJD Holding Co., No. 11cv-62069, 2013 U.S. Dist. LEXIS 77524, at *23 (S.D. Fla. June
3,

2013)(internal

citation

omitted).

Under

the

facts

presented, the Court determines that this factor weighs in
favor of finding employee status. Plainly, a delivery company
is dependent upon delivery drivers to function and such
drivers perform the core functions of the Callahan Defendants’
business. See Sakacsi, at *26 (“Simply put, without its
delivery drivers, [defendant] could not function.”).
7.

Examining the Record as a Whole

In determining whether an employer-employee relationship
existed, “[n]o one factor is determinative;” “each factor
should be given weight according to how much light it sheds on
the nature of the economic dependence of the putative employee
on the employer.” Perdomo, 298 F. App’x at 821; see also
Usery, 527 F.2d at 1311 (“No one of these considerations can
become the final determinant, nor can the collective answers
to all of the inquires produce a resolution which submerges
consideration of the dominant factor – economic dependence.”);
Benshoff v. City of Va. Beach, 180 F.3d 136, 141 (4th cir.
1999) (“The employer-employee relationship does not lend
itself to rigid per se definitions, but depends upon the

18

circumstances of the whole activity.”).
Here, some of the relevant factors point to employee
status, but many of the relevant factors are dominated by
factual disputes. And the overarching question of whether the
helpers were employed or otherwise contracted by the Callahan
Defendants remains to be addressed. The Court therefore denies
the Motion for Summary Judgment with respect whether Maldonado
was an employee or, rather, an independent contractor.
C.

Individual Liability for Patrick Callahan

Plaintiff also seeks a finding that Patrick Callahan
should be held individually liable for any violations of the
FLSA that may be found in this case.

“A corporate officer

with operational control of a corporation’s covered enterprise
is

an

employer

along

with

the

corporation,

jointly

and

severally.” Patel v. Wargo, 803 F.2d 632, 637-38 (11th Cir.
1986). In making an individual liability determination, the
Court must “inquire as to whether the officer was involved in
the compensation of employees, the hiring and firing of
employees, or other matters in relation to an employee.”
Olivas v. A. Little Havana Check Cash, Inc., 324 F. App’x 839,
845 (11th Cir. 2009).

Summary judgment in a plaintiff

employee’s favor on the issue of individual liability is
appropriate when the individual corporate officer “hired [the
plaintiff], set [the plaintiff’s] rate of pay and schedule,

19

and had the authority to discipline [the plaintiff],” in
addition to “exercis[ing] the authority to hire and fire [the
company’s] employees, determine work schedules, and control
[the company’s] finances and operations.” Id.

The Court has

determined that there are genuine issues of material fact
regarding

the

manner

of

control

Maldonado

and

accordingly

denies

Callahan
the

exercised

Motion

for

over

Summary

Judgment on this issue.
D.

Motor Carrier Exemption to the FLSA

Maldonado seeks summary judgment on the issue of whether
the

Motor

Carrier

Act

exemption

to

the

FLSA

applies.

Exemptions from the overtime provisions of the FLSA “are to be
narrowly construed against the employer.” Birdwell v. City of
Gasden, Ala., 970 F.2d 802, 805 (11th Cir. 1992).

The FLSA

“should be interpreted liberally in the employee’s favor.” Id.
And, a defendant “must prove applicability of an exemption by
clear

and

affirmative

evidence.”

Id.

(internal

citation

omitted). The determination of whether FLSA exemptions should
apply is a question of law. Walters v. Am. Coach Lines of
Miami, Inc., 569 F. Supp. 2d 1270, 1281 (S.D. Fla. 2008).
Here, the Callahan Defendants have not filed an Answer to
the Complaint, nor have they asserted any defenses. Therefore,
Defendants have not brought the exemption before the Court in
a procedurally correct manner.

20

Rather than provide a ruling

on the application of an exemption that is not squarely before
the Court, the Court provides the Callahan Defendants with the
opportunity to file an Answer and Affirmative Defenses by
January 19, 2018.

The Motion for Summary Judgment is denied

without prejudice with respect to the Motor Carrier Act
exemption.

The Court will evaluate the exemption only if a

Defendant raises it and only if the Court finds that Maldonado
is an employee under the FLSA.

Until Maldonado’s employment

status is ascertained, a discussion of possible (and yet to be
asserted) FLSA exemptions is a hypothetical and premature
judicial exercise.
E.

Good Faith and Other Issues

Maldonado seeks an Order finding that Defendants’ conduct
evinces a manifest lack of good faith and that the he is
accordingly

entitled

to

liquidated

damages

for

any

FLSA

violations.

The FLSA provides that any employer who violates

the overtime requirements “shall be liable to the employee or
employees affected in the amount of their unpaid . . .
overtime compensation . . . and an additional amount as
liquidated damages.” 29 U.S.C. § 216(b). The Eleventh Circuit
has instructed that “an employer who seeks to avoid liquidated
damages bears the burden of proving that its violation was
both in good faith and predicated upon such reasonable grounds
that it would be unfair to impose upon him more than a
21

compensatory verdict.” Joiner v. Macon, 814 F.2d 1537, 1539
(11th Cir. 1987).

That is, “liquidated damages are mandatory

absent good faith.” Id.
Here, the Court determines that it is premature to
evaluate whether the Callahan Defendants acted in good faith.
The good faith analysis will only be necessary if a violation
of the FLSA is found.

And, at this stage, the determination

of whether Maldonado was an employees or an independent
contractor still needs to be made.

If, after hearing the

evidence, the Court determines that the he was an independent
contractor, the good faith inquiry will be moot.

The Court

accordingly denies the Motion for Summary Judgment on this
issue.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

Plaintiff’s Motion for Summary Judgment (Doc. # 98) is
GRANTED IN PART AND DENIED IN PART consistent with the
foregoing.

(2)

Defendants shall file an Answer by January 19, 2018.
DONE and ORDERED in Chambers, in Tampa, Florida, this

12th day of January, 2018.

22