Secretary of Labor, United States Department of Labor v. La Bella Vida ALF, Inc. et al
Filing
67
ORDER granting in part and denying in part 46 Motion for Summary Judgment; granting in part and denying in part 47 Motion for Partial Summary Judgment. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 10/19/2015. (DRW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
THOMAS E. PEREZ, Secretary of
Labor, United States Department
of Labor,
Plaintiff,
v.
Case No. 8:14-cv-2487-T-33TGW
LA BELLA VIDA ALF, INC., and
MAVEL INFANTE,
Defendants.
_____________________________/
ORDER
This cause is before the Court on Defendants La Bella
Vida ALF, Inc. and Mavel Infante’s Motion for Summary Judgment
filed on August 3, 2015. (Doc. # 46). Also before the Court
is Plaintiff Thomas E. Perez’s, Secretary of Labor, United
States
Department
of
Labor,
(the
Secretary)
Motion
for
Partial Summary Judgment filed on August 3, 2015. (Doc. #
47). On September 2, 2015, the parties filed their respective
responses in opposition. (Doc. ## 52, 53). La Bella Vida and
Infante filed a reply on September 16, 2015. (Doc. # 56). The
Secretary filed a reply on September 18, 2015. (Doc. # 58).
Both motions are now ripe for this Court’s review.
I.
Background
1
In
December
2009,
Infante,
along
with
her
husband,
opened La Bella Vida. (Doc. # 48-1 at 9). La Bella Vida
operated three residential living facilities: La Bella Vida
I, located at 8716 Fountain Avenue, Tampa, FL; La Bella Vida
II, located at 5816 North Grady Avenue, Tampa, FL; and La
Bella Vida III, located at 14053 Briardale Lane, Tampa, FL.
(Doc. # 5 at 2). At each of these three facilities La Bella
Vida
provided
services
for
assistance
the
elderly.
with
daily
(Doc.
#
living
48-1
at
and
live-in
14:15-15:9).
Employees of La Bella Vida worked in various positions, such
as housekeeper, Certified Nursing Assistant, or secretary.
(Doc. # 47-1 at 27). Employees were paid on the 15th and the
30th of every month. (Id. at 36:19-37:6).
Employees at these facilities worked several different
shifts. On Monday through Friday of each week, there was a
shift from 7 a.m. to 2 p.m. (the Morning Shift); 2 p.m. to 7
p.m. (the Afternoon Shift); and 7 p.m. to 7 a.m. (the Night
Shift). (Id. at 27-28, 31). The Weekend shift ran from 7 a.m.
on Saturday to 7 a.m. Monday. (Id.). During the overnight
shifts, only one employee was on duty. (Id. at 28).
For the employees who worked the Night and Weekend
Shifts, duties included taking care of the residents if there
was an emergency, taking the residents to the bathroom if
2
needed, and changing the residents’ diapers if needed. (Id.
at
52:20-54:7;
57:16-58:18;
95-96).
Employees
working
overnight were instructed to do a round at midnight to make
sure no residents were sleeping in wet clothes. (Id. at 57,
95-96). According to the Secretary, employees working the
overnight shifts were often called to duty in the night and
slept fewer than 5 hours. (Doc. ## 47-4 at 3, ¶ 4; 47-4 at 9,
¶ 4; 47-4 at 18, ¶ 4; 47-4 at 23, ¶ 4; 47-4 at 28, ¶ 4; 47-4
at 33, ¶ 4; 47-4 at 39, ¶ 4; 47-4 at 44, ¶ 4; 50-1 at ¶ 4;
50-2 at ¶ 3; 50-3 at ¶ 4; 50-4 at ¶ 4). But, according to
Infante, she observed the employees via security cameras and
verified each day that the employees were able to sleep more
than 5 hours per night. (Doc. ## 47-1 at 20:18-25, 51:11-19,
97:20-98:1).
These
video
recordings
were
automatically
overwritten, and thereby deleted, every 30 days. (Doc. ## 471 at 20:18-25; 53-2 at ¶¶ 7-8).
Furthermore, employees working overnight were provided
some
form
of
sleeping
accommodations.
In
particular,
employees were provided with a bedroom at La Bella Vida I and
III. (Doc. ## 53-1 at 57:7-15; 53-2 at ¶ 9). According to
Infante, these bedrooms were fully furnished (Doc. # 53-2 at
¶ 9); however, a former employee submitted an affidavit
stating that the room only contained a mattress on the floor
3
(Doc. # 47-4 at 44, ¶ 4). At La Bella Vida II, Infante claims
the employees were free to choose between a bedroom and a
sofa, which turned into a sofa-bed, in the family room. (Doc.
# 53-2 at ¶ 9). However, several employees have submitted
affidavits stating that no such bedrooms were made available
and that the sofa-bed was actually just a sofa. (Doc. ## 474 at 3, ¶ 4; 47-4 at 9, ¶ 4; 47-4 at 18, ¶ 4; 47-4 at 28, ¶
4; 47-4 at 33, ¶ 4). La Bella Vida and Infante deducted 5
hours per night from each employee who worked an overnight
shift. (Doc. # 47-1 at 34-35).
Infante claims that the employees consented to this
deduction (Doc. ## 53-1 at 95:12-25; 53-2 at ¶ 5; 53-3 at ¶
3);
however,
several
employees
state
that
there
was
no
agreement concerning sleep-time deductions (Doc. ## 47-4 at
18, ¶ 4; 47-4 at 23, ¶ 4; 47-4 at 28, ¶ 4; 47-4 at 33, ¶ 4;
47-4 at 39, ¶ 4; 47-4 at 44, ¶ 4; 50-1 at ¶ 4; 50-2 at ¶ 3;
50-3 at ¶ 4; 50-4 at ¶ 4). In addition, La Bella Vida and
Infante deducted an hour per day for meal breaks from the
hours worked by Weekend-Shift employees. (Doc. # 47-1 at
75:10-76:18).
The
employees
were
not
free
to
leave
the
facility during their breaks and were required to attend to
the residents if needed. (Doc. # 47-1 at 56:7-12).
4
In May of 2014, an investigator for the Department of
Labor,
Wage
and
Hour
Division,
Carola
Diaz,
opened
an
investigation into whether La Bella Vida was violating the
Fair Labor Standards Act of 1938 (FLSA) and visited La Bella
Vida on May 27, 2014. (Doc. ## 47-3 at ¶¶ 4, 6; 48-2 at ¶ 6).
Diaz returned for a second visit on May 28, 2014. (Doc. ##
47-3 at ¶ 8; 48-2 at ¶ 7). Diaz again returned on June 28,
2014, to La Bella Vida to collect additional copies of time
records for the employees. (Doc. # 48-2 at ¶ 8). Subsequent
thereto, the Secretary filed suit against La Bella Vida and
Infante on October 2, 2014. (Doc. # 1). In this action, the
Secretary seeks to recover back wages, and an equal amount in
liquidated damages, for 20 employees. In particular, those 20
employees are listed below.
1. Rosa M. Artaza;
2. Yanara Barrios;
3. Ariannys Blanco;
4. Olga Cabezas;
5. Jehysel Carballo;
6. Barbara Cardenas;
7. Juan Castellano;
8. Yatnira Chang;
9. Ines Febles;
10. Mayda Hernandez;
11. Mabel Izquierdo;
12. Mayra Ledesma;
13. Mairelis Matos-Gonzalez;
14. Ibia Mestre;
15. Yoleidy Ramos;
16. Reina Rivas;
17. Damaris Rubalcaba;
5
18. Marta Sanchez;
19. Oralvi Santiesteban; and
20. Vilma Villamar.
(Id.; Doc. # 52-1 at 4-7).
In May of 2015, La Bella Vida ceased operations and no
longer employs any employees. (Doc. ## 48-2 at ¶ 11; 53-2 at
¶ 11); cf. (Doc. # 47-3 at ¶ 20). However, it is unclear
whether La Bella Vida is still an active corporate entity
with the State of Florida and, if so, to what extent. (Doc.
## 47-3 at ¶ 20; 53-2 at ¶ 11). There is also conflicting
evidence as to whether Infante is the administrator for the
facility now operating at the former La Bella Vida III
location. (Doc. ## 47-3 at ¶ 22; 53-4). Furthermore, Infante
and her husband, or her husband’s company, still own the
properties at which the La Bella Vida facilities were located.
(Doc. # 47-3 at ¶ 23).
Both
parties
have
now
filed
motions
for
summary
judgment, as well as their respective responses and replies.
Being otherwise fully briefed, the Court grants in part and
denies in part both pending motions for summary judgment.
II.
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.”
6
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
reasonable jury could return a verdict for the non-moving
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 that there is a genuine issue
for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,
7
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
non-moving party’s favor. Shotz v. City of Plantation, Fla.,
344 F.3d 1161, 1164 (11th Cir. 2003). 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, 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)).
consists
of
conclusional
However,
nothing
if
“more
allegations,”
the
than
summary
non-movant’s
a
repetition
judgment
is
response
of
his
not
only
proper, but required. Morris v. Ross, 663 F.2d 1032, 1034
(11th Cir. 1981).
III. Analysis
The
FLSA
provides
that
covered
employers
must
pay
employees a minimum wage for all hours worked. 29 U.S.C. §
206(a).
Except
as
otherwise
provided,
no
employer
shall
employ any employee for a workweek longer than 40 hours unless
such employee receives compensation for her or his employment
8
in excess of 40 hours at a rate not less than one and onehalf times the regular pay rate. Id. at § 207(a)(1). A covered
employer must “make, keep, and preserve” records for each
respective employee’s wages, hours, and other conditions and
practices of employment. Id. at § 211(c). It is unlawful for
any person to violate the provisions of Sections 206, 207,
and 211(c). Id. at § 215(a)(2), (5).
Any person who willfully violates the provisions of
Section 215 is subject to a fine not more than $10,000, six
months’ imprisonment, or both. Id. at § 216(a). Further, an
employer who violates the provisions of Section 206 or Section
207 is liable to the affected employee or employees in the
amount of their unpaid minimum wages, or their unpaid overtime
compensation, as the case may be, and in an additional equal
amount as liquidated damages. Id. at § 216(b). Either an
employee or the Secretary may bring an action to recover the
amount of unpaid minimum wages or overtime compensation and
an equal amount as liquidated damages. Id. at §§ 216(b)-(c).
In
actions
maintained
by
the
Secretary,
any
sums
thus
recovered on behalf of the employee or employees, “shall be
paid . . . directly to the employee or employees affected.”
Id. at § 216(c).
A.
Employees Paid
9
A case is moot when the parties lack a legally cognizable
interest in the outcome or when there is no longer a live
controversy
with
respect
to
which
the
court
can
give
meaningful relief. City of Erie v. Pap’s A.M., 529 U.S. 277,
287 (2000). The mootness doctrine applies to FLSA cases. Dean
v. Cmty. Dental Servs., Inc., No. 8:12-cv—1507-T-33AEP, 2012
WL 4208114, at *2 (M.D. Fla. Sept. 19, 2012). Thus, a FLSA
claim is mooted when the employer-defendant tenders full
payment. Evans v. Gen. Mech. Corp., 6:12-cv-229, 2012 WL
1450107, at *1 (M.D. Fla. Apr. 25, 2012).
In this case, the Secretary calculated the back wages,
plus an equal amount in liquidated damages, owed to Blanco,
Carbollo, and Febles as $3,711.80, $24,293.80, and $6,482.00,
respectively. (Doc. # 52-1 at 4-5). La Bella Vida tendered
the full amount due as calculated by the Secretary to Blanco,
Carbollo, and Febles. (Doc. ## 48-2 at ¶ 10; 48-6 at ¶ 2; 488 at ¶ 4; 48-23 at 3, 5, 9). Therefore, to the extent that
the Secretary’s claims are premised on the failure to pay
Blanco, Carbollo, and Febles in accordance with the FLSA,
those claims are dismissed.
B.
Undisputed Issues
The Secretary moves for summary judgment as to whether
(1) La Bella Vida and Infante are subject to enterprise
10
coverage as defined by Section 203(s)(1)(B); (2) Infante is
an employer as defined by Section 203(d); and (3) La Bella
Vida and Infante violated Sections 211(c) and 215(a)(5) by
failing to keep adequate and accurate records of the hours
worked by their employees. (Doc. # 47 at 2). The Secretary
does not move for summary judgment as to whether La Bella
Vida and Infante willfully violated the FLSA. (Id. at 3).
La Bella Vida and Infante “do not dispute (1) that [La
Bella
Vida]
is
subject
to
coverage
under
29
U.S.C.
§
203(s)(1)(B)[;] (2) that [Infante] was an employer as defined
by Section 203(d)[;] and (3) that [La Bella Vida] mistakenly,
not willfully, failed to maintain complete records in the
manner required by Section 211(c) . . . .” (Doc. # 53 at 2
n.1). Therefore, the Court grants summary judgment in the
Secretary’s favor as to those undisputed issues.
C.
Deductions for Sleep and Meal Breaks
The Secretary also seeks summary judgment as to whether
La Bella Vida and Infante were entitled to deduct (1) sleep
time from the hours worked by Night-Shift employees; (2) sleep
time from the hours worked by Weekend-Shift employees; and
(3)
break
time
from
the
hours
worked
by
Weekend-Shift
employees. (Doc. # 47 at 2). The Court addresses the issues
11
by shift. But, a preliminary discussion of the regulations
promulgated in furtherance of the FLSA is required.
1.
The
FLSA
The FLSA and Accompanying Regulations
is
silent
as
to
whether
sleep
time
is
compensable time. However, the Wage and Hour Division1 has
promulgated interpretive rules2 addressing that exact issue.
Maldonado v. Alta Healthcare Grp., Inc., 17 F. Supp. 3d 1181,
1190 (M.D. Fla. 2014) (recognizing Sections 785.21 and 785.22
as interpretive rules); see also (Doc. # 58 at 1 n.1) (stating
“Defendants are correct that Section 785.21 [and] 785.22 . .
. are ‘interpretative rules’ . . . . Nevertheless, the
interpretative rules are entitled to some level of deference
. . .”). In particular, Sections 785.21 and 785.22, 29 C.F.R.
§§ 785.21-785.22, address whether sleep time is compensable;
that is, whether sleep time is included when calculating hours
worked under the FLSA.
1
“Congress tasked the DOL with interpreting the terms of the
FLSA and issuing regulations thereunder. See generally 29
U.S.C. § 204 (creating the DOL's Wage and Hour Division to
administer the substantive provisions of the FLSA).” Josendis
v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1299
n.8 (11th Cir. 2011).
2
An interpretative rule is exempted from the notice-andcomment procedures. 5 U.S.C. § 553(b)(A).
12
Section 785.21 provides, “An employee who is required to
be on duty for less than 24 hours is working even though he
is permitted to sleep or engage in other personal activities
when not busy.” 29 C.F.R. § 785.21. In contrast, Section
785.22 provides,
Where an employee is required to be on duty for 24
hours or more, the employer and the employee may
agree to exclude bona fide meal periods and a bona
fide regularly scheduled sleeping period of not
more than 8 hours from hours worked, provided
adequate sleeping facilities are furnished by the
employer and the employee can usually enjoy an
uninterrupted night’s sleep. If sleeping period is
of more than 8 hours, only 8 hours will be credited.
. . . .
If the sleeping period is interrupted by a call to
duty, the interruption must be counted as hours
worked. If the period is interrupted to such an
extent that the employee cannot get a reasonable
night’s sleep, the entire period must be counted.
For enforcement purposes, the Divisions have
adopted the rule that if the employee cannot get at
least 5 hours’ sleep during the scheduled period
the entire time is working time.
29 C.F.R. § 785.22. The parties disagree about what, if any,
level of deference this Court affords Sections 785.21 and
785.22. (Doc. ## 56 at 4-9; 58 at 1-2).
The Supreme Court has noted that “the power of an
administrative agency to administer a congressionally created
program necessarily requires the formulation of policy and
the making of rules to fill any gap left, implicitly or
explicitly, by Congress.” Long Island Care at Home, Ltd. v.
13
Coke, 551 U.S. 158, 165 (2007) (quoting Chevron U.S.A. Inc.
v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 (1984))
(internal quotation marks and omissions omitted). “When an
agency fills such a ‘gap’ reasonably, and in accordance with
other applicable (e.g., procedural) requirements, the courts
accept the result as legally binding.” Id. The “ultimate
question
expected,
is
whether
courts
to
Congress
treat
an
would
have
agency’s
intended,
rule,
and
regulation,
application of a statute, or other agency action as within,
or outside, its delegation to the agency of ‘gap-filling’
authority.” Id. at 173 (emphasis original).
Although
notice-and-comment
rulemaking
is
highly
indicative of a congressional intent for courts to defer, the
lack of that procedure is not dispositive. Barnhart v. Walton,
535 U.S. 212, 221-22 (2002); see also United States v. Mead
Corp., 533 U.S. 218, 230-31 (2001) (stating “as significant
as notice-and-comment is in pointing to Chevron authority,
the want of the procedure here does not decide the case . .
.”). The Court has also looked to factors such as “the
interstitial
nature
of
the
legal
question,
the
related
expertise of the Agency, the importance of the question to
administration
of
the
statute,
the
complexity
of
that
administration, and the careful consideration the Agency has
14
given the question over a long period of time” in determining
whether a particular agency interpretation is entitled to
Chevron deference. Barnhart, 535 U.S. at 222. A court defers
to the interpretive regulations promulgated by the Department
of Labor “when the statutory language is ambiguous or the
statutory terms are undefined.” Josendis, 662 F.3d at 1299
(citing Chevron, 467 U.S. at 843-45, as “requiring deference
where the statutory language is ambiguous and the rule-making
agency’s
regulation
is
a
reasonable
interpretation
of
Congress’ intent”).
Furthermore, even if a regulation or interpretation is
not entitled to Chevron deference, it may still be entitled
to deference under Skidmore v. Swift & Co., 323 U.S. 134
(1944). See Christensen v. Harris Cty., 529 U.S. 576, 587
(2000).
Thus,
duration,”
it
if
the
would
regulation
still
be
is
entitled
of
“longstanding
deference
under
Skidmore, and “particular deference” is normally accorded to
an agency interpretation of longstanding duration. RamosBarrientos v. Bland, 661 F.3d 587, 598 (11th Cir. 2011)
(finding regulations promulgated in 1967 entitled to Skidmore
deference “in part because they were adopted in 1967”). With
those principles in mind, the Court now addresses the issue
of sleep and meal break deductions.
15
2.
Night-Shift Employees
Whether an employer may deduct sleep time from employees
working a shift of less than 24 hours when calculating hours
worked for purposes of Section 206 and 207 is interstitial in
nature. See generally 29 U.S.C. §§ 201-219. Congress tasked
the Department of Labor with interpreting the terms of the
FLSA and promulgating regulations thereunder. Josendis, 622
F.3d at 1299 n.8. And Sections 785.21 and 785.22 do just that
by squarely focusing on this gap of whether sleep time is to
be included when counting hours worked, which, in turn,
impacts
a
determination
of
whether
an
employer
violates
Sections 206 and 207. In addition, Sections 785.21 and 785.22
are of longstanding duration. 26 Fed. Reg. 190, 192-93 (Jan.
11, 1961).
Of course, Section 785.21 and 785.22 are not entitled to
deference if they are “arbitrary or capricious in substance,
or manifestly contrary to the statute.” Mead Corp., 553 U.S.
at 227. In this vein, La Bella Vida and Infante argue Section
785.21
is
arbitrary
because
another
interpretative
rule
addressing meal breaks, Section 785.19, does not include a
24-hour distinction. (Doc. # 53 at 6-7). La Bella Vida and
Infante further argue in rhetorical style that drawing the
line at 24 hours, rather than at 23 or 25, is a “fiat.” (Id.
16
at 7). In light of the qualitative difference between meal
and sleep breaks, in addition to the fact that a day is
composed
of
24
hours,
the
Court
finds
these
arguments
unpersuasive. Thus, the Court defers to Sections 785.21 and
785.22.
Here, it is not disputed that the Night Shift was less
than 24 hours in duration. (Doc. ## 47-1 at 27:21-28:14,
31:15-19; 47-2 at 6; 47-3 at 11; 53-2 at ¶ 4). Further, the
Court defers to Section 785.21, which does not allow for the
deduction of sleep time from hours worked by an employee
working a shift less than 24 hours. Accordingly, the Court
grants the Secretary’s Motion to the extent it seeks an entry
of judgment that La Bella Vida and Infante were not entitled
to
deduct
sleep
time
from
hours
worked
by
Night
Shift
employees.
3.
Weekend-Shift Employees
Turning to the Weekend-Shift employees, the operative
regulation is Section 785.22, which addresses situations
where employees are on duty for 24 hours or more. When an
employee is on duty for more than 24 hours, “the employer and
employee may agree to exclude bona fide meal periods and a
bona fide regularly scheduled sleeping period of not more
than 8 hours worked, provided adequate sleeping facilities
17
are furnished by the employer and the employee can usually
enjoy an uninterrupted night’s sleep.” 29 C.F.R. 785.22(a).
“For enforcement purposes, the Divisions have adopted the
rule that if the employee cannot get at least 5 hours’ sleep
during the scheduled period the entire time is working time.”
Id. at § 785.22(b).
As to bona fide meal periods, the applicable regulation
provides,
Bona fide meal periods are not worktime. Bona fide
meal periods do not include coffee breaks or time
for snacks. These are rest periods. The employee
must be completely relieved from duty for the
purposes of eating regular meals. Ordinarily 30
minutes or more is long enough for a bona fide meal
period. A shorter period may be long enough under
special conditions. The employee is not relieved if
he is required to perform any duties, whether
active or inactive, while eating.
29 C.F.R. § 785.19(a). However, “It is not necessary that an
employee be permitted to leave the premises if he is otherwise
completely freed from duties during the meal period.” 29
C.F.R. § 785.19(b).
Kohlheim v. Glynn County, Ga., 915 F.2d 1473 (11th Cir.
1990), sets forth the standard for determining whether a meal
period is a bona fide meal period. Avery v. City of Talladega,
Ala., 24 F.3d 1337, 1344-46 (11th Cir. 1994) (stating that
Section
785.19
and
Kohlheim
18
set
the
general
standard
regarding meal breaks); see also Chao v. Tyson Foods, Inc.,
568 F. Supp. 2d 1300, 1306-07 (N.D. Ala. 2008) (noting that
Kohlheim’s standard is applied when Section 785.19 is the
applicable regulation). Under Kohlheim, an employer must
establish that an employee is completely relieved from duty
in order to deduct a meal break from the hours worked; the
“essential consideration” is whether the employees “are in
fact relieved from work for the purpose of eating a regularly
scheduled meal.” Kohlheim, 915 F.2d at 1477.
It is not disputed by the parties that the Weekend Shift
consisted of more than 24 hours. (Doc. ## 47-1 at 27:17-23,
31:15-19; 47-3 at ¶ 11; 48-1 at 109:21-25; 53-2 at ¶ 5).
However, there is a genuine issue of material fact regarding
whether the employees were (a) able to sleep at least 5 hours
a night and agreed to the sleep-time deductions; (b) provided
with
adequate
sleeping
facilities;
and
(c)
completely
relieved from duty during their meal breaks.
a. Sleep-time deductions and agreements
With regards to whether the employees were able to sleep
at least 5 hours a night, Infante submitted a declaration
stating that “There was never a time when an employee working
overnight did not get at least five hours of uninterrupted
sleep, which was the same experience I had when I personally
19
worked the overnight shift and before I hired any employees.”
(Doc. # 53-2 at 7). Furthermore, Infante testified at her
deposition that employees slept 5 hours a night. (Doc. # 471 at 51:11-19). In addition, in response to a question
concerning how she knew the employees slept during the night,
Infante stated:
I have camera, and so I -- like I normally try to
take a look like every half an hour, every hour
during the nighttime. I’ll wake up to look at the
camera or the next day I’ll take a look at my
cellphone to make sure that they’re not lying if
they slept or they’re awake.
(Id. at 97:20-98:1); see also (Doc. # 47-1 at 20:18-25); cf.
(Doc. # 53-2 at ¶¶ 7-8). A former employee also stated that
“There was never a time where an employee slept less than
five hours a night. In fact, the employees slept much more
than five hours the majority of nights.” (Doc. # 53-3 at ¶
2).
As to the related issue of whether there was an agreement
regarding the deduction of sleep time, La Bella Vida and
Infante submitted record evidence establishing that Infante
spoke with the employees before hiring regarding sleep-time
deductions and that no employee objected or offered a counteroffer. (Doc. ## 53-1 at 95:12-25; 53-2 at ¶ 5). An employee
also stated that “weekend shift employees had an agreement
20
that a five hour sleep period would be deducted from the
employee’s hours. This was well known amongst the staff.”
(Doc. # 53-3 at ¶ 3).
The
Secretary,
however,
submitted
affidavits
establishing just the opposite. In twelve affidavits the
Secretary
points
to
record
evidence
establishing
that
employees were not able to sleep more than 5 hours a night;
these
affidavits
also
establish
that
there
was
not
an
agreement as to sleep-time deductions. (Doc. ## 47-4 at 3, ¶
4; 47-4 at 9, ¶ 4; 47-4 at 18, ¶ 4; 47-4 at 23, ¶ 4; 47-4 at
28, ¶ 4; 47-4 at 33, ¶ 4; 47-4 at 39, ¶ 4; 47-4 at 44, ¶ 4;
50-1 at ¶ 4; 50-2 at ¶ 3; 50-3 at ¶ 4; 50-4 at ¶ 4). Therefore,
summary judgment is inappropriate as to sleep-time deductions
for Weekend-Shift employees.
b. Adequate sleeping facilities
Furthermore, a genuine issue of material fact exists
regarding whether adequate sleeping facilities were provided.
Section 785.22 does not define what constitutes adequate
sleeping
facilities.
See
29
C.F.R.
785.22.
Nor
has
the
Eleventh Circuit addressed what constitutes adequate sleeping
facilities. The Secretary argues this Court should adopt the
Eighth Circuit’s position that a sofa or sofa-bed is, as a
matter of law, inadequate. (Doc. # 47 at 21 (citing Hultgren
21
v. Cty. of Lancaster, 913 F.2d 498 (8th Cir. 1990)). In
contrast, La Bella Vida and Infante urge this Court to adopt
a more subjective inquiry assessing whether the employee
found the sleeping facilities adequate. (Doc. # 53 at 11
(citing Trocheck v. Pellin Emergency Med. Serv., Inc., 61 F.
Supp. 2d 685, 695 (N.D. Ohio 1999)).
Under either standard, a genuine issue of material fact
exists.
The
record
contains
conflicting
evidence
as
to
whether employees were offered a private bedroom. Compare
(Doc. ## 53-1 at 57:7-15; 53-2 at ¶ 9), with (Doc. ## 47-4 at
3, ¶ 4; 47-4 at 9, ¶ 4; 47-4 at 18, ¶ 4; 47-4 at 33, ¶ 4).
Furthermore, a genuine issue of material fact exists as to
the nature of the accommodations in the private bedroom.
Compare (Doc. # 53-2 at ¶ 9), with (Doc. # 47-4 at 44, ¶ 4).
In addition, there is conflicting evidence regarding the
nature of the sofa in the family room. Infante submits the
sofa was a sofa-bed and that employees elected to sleep on
that sofa-bed (Doc. # 53-2 at ¶ 9), whereas an employee
submits that the sofa was merely a sofa (Doc. # 47-4 at 28,
¶ 4). Therefore, summary judgment is inappropriate as to the
adequacy of the sleeping facilities.
c.
Completely relieved from duty
22
A genuine issue of fact exits as to whether WeekendShift employees were completely relieved from their duties.
La Bella Vida and Infante have submitted evidence showing
that Weekend-Shift employees were instructed to take two 30minute meal breaks and that those breaks were “very rarely,
if ever, interrupted.” (Doc. ## 53-2 at ¶ 10; 53-3 at 2). In
contrast, the Secretary has submitted evidence showing that
there was only one employee on duty (Doc. # 47-1 at 28:8-23),
the employee was not free to leave (Id. at 56:7-12), and the
employee was required to tend to the residents if needed (Id.
at 55:25-56:12). Therefore, a genuine issue of material fact
exists as to whether the employees were, in fact, completely
removed from duty.
In sum, the Court finds there are genuine issues of
material fact regarding (a) whether La Bella Vida and Infante
were entitled to deduct sleep time, (b) whether adequate
sleeping facilities were provided, and (c) whether La Bella
Vida and Infante were entitled to deduct meal breaks as to
the Weekend-Shift employees. Accordingly, the Court denies
the Secretary’s Motion for partial summary judgment as to
those issues.
D.
Minimum Wage and Total Amount Owed
23
The Secretary also seeks summary judgment as to whether
La Bella Vida and Infante paid their employees below the
minimum wage. (Doc. # 47 at 2). However, whether the employees
were paid below the minimum wage is a conclusion, which turns
in part on whether the sleep-time and meal-time deductions
were allowed under the FLSA. With respect to the WeekendShift
employees,
genuine
issues
of
material
fact
exist
regarding whether such deductions were proper.
In addition, it is far from clear how much the NightShift employees were paid and the total number of hours they
worked. See (Doc. # 47-1 at 34:11-24) (stating employees
working the Night Shift “normally” worked 35 hours and “a lot
of times” were paid $300 a week). The record also contains
conflicting evidence as to the employees’ terms of employment
and shifts worked. Compare (Doc. # 47-3 at ¶¶ 10-11), with
(Doc. # 47-2 at ¶ 6); Compare (Doc. ## 47-1 at 28:4-7; 47-4
at 3, ¶¶ 1, 3; 47-4 at 8, ¶¶ 1, 3; 47-4 at 18, ¶ 1; 47-4 at
23, ¶ 1; 47-4 at 28, ¶ 1; 47-4 at 33, ¶ 1; 47-4 at 38, ¶¶ 13; 47-4 at 43, ¶ 1; 50-1 at ¶¶ 1-3; 50-2 at ¶¶ 1-2; 50-3 at
¶¶ 1, 3; 50-4 at ¶¶ 1, 3; 50-5 at ¶¶ 1, 3; 52-1 at 4; 52-1 at
7), with (Doc. ## 48-4 at ¶¶ 1, 2; 48-7 at ¶¶ 1, 2; 48-10 at
¶ 1; 48-12 at ¶ 1; 48-14 at ¶ 1; 48-15 at ¶ 1; 48-16 at ¶ 1;
48-19 at ¶ 1; 48-3 at ¶¶ 1-2; 48-13 at ¶ 1; 48-20 at ¶ 1; 48-
24
22 at ¶¶ 1-2; 48-11 at ¶¶ 1-3; 48-9 at ¶ 1; 48-21 at ¶ 1).
Therefore, it would be inappropriate for this Court to grant
summary judgment as to whether the employees were paid below
the minimum wage.
La Bella Vida and Infante, for their part, argue this
case should be dismissed in its entirety because they have
paid all back wages, plus an equal amount in liquidated
damages, to the employees. (Doc. # 46). Although that is true
for
three
employees,
supra
pp.
9-10,
as
to
the
other
employees, genuine issues of material fact exist. Thus, La
Bella Vida and Infante’s Motion for Summary Judgment is denied
to the extent it seeks dismissal of the case based on the
argument that La Bella Vida and Infante tendered all damages
under the FLSA.
E. Injunctive Relief
The Secretary seeks an entry of summary judgment that he
is entitled to an injunction permanently barring La Bella
Vida, their agents, servants, employees, and all persons in
active concert or participation with them from violating the
provisions of Sections 206, 207, 211(c), and 215(a)(5) of the
FLSA. (Doc. # 47 at 2). La Bella Vida and Infante contend the
Secretary’s claim for injunctive relief should be dismissed
as moot.
25
In order to receive a permanent injunction, “a party
must show: (1) that he has prevailed in establishing the
violation of the right asserted in his complaint; (2) there
is no adequate remedy at law for the violation of this right;
and (3) irreparable harm will result if the court does not
order injunctive relief.” Ala. v. U.S. Army Corps. of Eng’rs,
424 F.3d 1117, 1128 (11th Cir. 2005) (citing Newman v. Ala.,
683 F.2d 1312, 1319 (11th Cir. 1982)). A claim for injunctive
relief may be mooted if “(1) it can be said with assurance
that there is no reasonable expectation that the alleged
violation will recur and (2) interim relief or events have
completely and irrevocably eradicated the effects of the
alleged violation.” Reich v. Occupational Safety and Health
Review Comm’n, 102 F.3d 1200, 1201 (11th Cir. 1997) (quoting
Cty. of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)).
But “voluntary cessation of allegedly illegal conduct .
. . does not make the case moot.” Sec’y of Labor, U.S. Dep’t
of Labor v. Burger King Corp., 955 F.2d 681, 684 (11th Cir.
1992) (internal quotation marks and citation omitted). “[T]he
test for mootness in cases such as this is a stringent one.
A
case
might
become
moot
if
subsequent
events
made
it
absolutely clear that the allegedly wrongful behavior could
26
not
reasonably
be
expected
to
recur.”
Id.
(internal
alterations and citation omitted).
A genuine issue of material fact exists as to whether a
permanent injunction should be issued. La Bella Vida and
Infante have submitted record evidence establishing that La
Bella Vida has permanently ceased all operations as of May
31, 2015. (Doc. ## 48-2 at ¶ 11; 53-2 at ¶ 11); cf. (Doc. #
47-3 at ¶ 20). The Secretary, however, points to the fact
that La Bella Vida is still “an ‘active’ corporate entity[,]
which has issued checks from its operating account as recently
as June 2015.” (Doc. ## 47-3 at ¶¶ 20-21; 52 at 16). The
Secretary also cites to evidence showing Infante is the
administrator of an assisted living facility operating out of
a former La Bella Vida facility. (Doc. # 47-3 at ¶ 22). The
property out of which that assisted living facility operates
is still owned by the Infantes or Mr. Infante’s company. (Id.
at ¶ 22). But, Infante states that she has no affiliation
with the assisted living facility. (Doc. # 53-2 at ¶ 12; 534 at ¶¶ 2-3).
Whether and to what extent La Bella Vida remains active
goes to the very heart of whether the claim for injunctive
relief has been mooted. Thus, because there is a genuine issue
of material fact, the Court denies the Secretary’s, and La
27
Bella
Vida
and
Infante’s
respective
motions
for
summary
judgment on whether a permanent injunction should issue.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)
La Bella Vida and Infante’s Motion for Summary Judgment
(Doc. # 46) is GRANTED to the extent that it seeks to
dismiss the claims for Blanco, Carballo, and Febles.
However, the Motion (Doc. # 46) is DENIED to the extent
it seeks dismissal of the entire case.
(2)
The Secretary’s Partial Motion for Summary Judgment
(Doc. # 47) is GRANTED to the extent it seeks an entry
of judgment that La Bella Vida was subject to enterprise
coverage as defined by Section 203(s)(1)(B); Infante was
an employer as defined by Section 203(d); and La Bella
Vida violated Sections 211(c) and 215(a)(5).
(3) The Secretary’s Partial Motion for Summary Judgment (Doc.
# 47) is GRANTED to the extent it seeks an entry of
judgment that La Bella Vida and Infante were not entitled
to deduct sleep time from hours worked by Night Shift
employees.
(4)
The Secretary’s Partial Motion for Summary Judgment
(Doc. # 47) is DENIED to the extent it seeks an entry of
judgment that La Bella Vida and Infante were not entitled
28
to deduct sleep and break time from hours worked by
Weekend Shift employees.
(5)
The Secretary’s Partial Motion for summary judgment
(Doc. # 47) is DENIED to the extent it seeks an entry of
judgment as to whether employees were paid at minimum
wage.
(6)
The Secretary’s Partial Motion for Summary Judgment
(Doc. # 47) is DENIED to the extent it seeks an entry of
judgment that the Secretary is entitled to permanent
injunctive relief.
DONE and ORDERED in Chambers in Tampa, Florida, this
19th day of October, 2015.
Copies: All Counsel of Record
29
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