Partridge v. Mosley Motel of Saint Petersburg Inc. et al

Filing 52

ORDER: Affordable Realty and Property Management, Inc.'s Motion for Summary Judgment 44 is DENIED. Mosley Motel of Saint Petersburg, Inc. and Al Kadury's Motion for Summary Judgment 46 is DENIED.Harry Partridge's Motion for Partial Summary Judgment 48 is GRANTED. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 1/6/2016. (KAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
HARRY PARTRIDGE,
Plaintiff,
v.

Case No. 8:15-cv-936-T-33JSS

MOSLEY MOTEL OF SAINT PETERSBURG
INC., a Florida corporation,
AFFORDABLE REALTY AND PROPERTY
MANAGEMENT, INC., a Florida
corporation, and AL KADURY
individually,
Defendants.
______________________________/
ORDER
This matter is before the Court pursuant to Defendant
Affordable Realty and Property Management, Inc.’s Motion for
Summary Judgment (Doc. # 44), filed on October 30, 2015,
Defendants Al Kadury and Mosley Motel of Saint Petersburg,
Inc.’s Motion for Summary Judgment (Doc. # 46), filed on
October 31, 2015, and Plaintiff Harry Partridge’s Motion for
Partial Summary Judgment (Doc. # 48), filed on November 2,
2015. All three Motions became ripe on November 19, 2015.
For the reasons that follow, the Court denies Affordable
Realty’s Motion (Doc. # 44), denies Kadury and Mosley Motel’s
Motion (Doc. # 46), and grants Partridge’s Motion (Doc. # 48).
I.

Background
Mosley

Motel

is

an

extended

stay

motel

located

in

Pinellas County, Florida, with approximately 107 rooms for
rent. (Doc. # 33 at ¶ 8; Kadury Dep. Doc. # 47-1 at 10).

Al

Kadury started out at Mosley Motel as “head of maintenance”
and worked his way up to holding the position of “manager” of
the Motel. (Kadury Dep. Doc. # 47-1 at 3-5).

He has served in

that role at Mosley Motel for approximately four years. (Id.
at 4).

Kadury is typically present at Mosley Motel, Monday

through Friday and on weekends, as needed. (Id. at 6-7).
the

manager,

Kadury

supervises

the

office

As

employees,

maintenance men, groundsmen, and the housekeeper. (Id. at 31).
Kadury hires and fires workers for the Mosley Motel. (Id. at
31). Kadury is responsible for payroll and is paid a salary of
$500 per week. (Id. at 7, 33, 56). Kaudry testified that he
employed his daughter as well and paid her “way more” than the
other employees “because she’s my daughter.” (Id. at 37).
The Mosley Motel has a debit card machine and accepts
cash, credit cards, and checks. (Id. at 25). There are two
front desk Motel workers who use the telephone, fax machine,
and Internet. (Id.

at 26).

Kadury testified that room

reservations may be made by downloading a form from the
Internet and faxing it to the Motel. (Id.).

The Motel has a

website as well as a cellular telephone. (Id. at 26-27).
Harry Partridge, a self-taught handyman with a tenth
grade education, was a guest at Mosley Motel with his wife and
three young children. (Partridge Dep. Doc. # 45-1 at 11-12;
Kadury Dep. Doc. # 47-1 at 43-44). As described by Kadury:

2

Harry was a guest with his wife and three
children . . . and they were there for a week. I
think some organization put them here. I think the
outreach for homeless or somebody put them in the
motel for a week, they paid for them.
And I really liked the kids so when I saw them
checking out with all their stuff walking I asked
one of the people and they said, oh, they have no
where to go. So I felt bad and I sent someone to
call them.
They were already half way down the
street and I told them to stay. . . . I said, go
ahead and stay for the week and I’ll take care of
it. I don’t want you going on the street with the
kids and we’ll figure out what we’re going to do.
(Kadury Dep. Doc. # 47-1 at 45).
After some discussions, Partridge became employed as a
maintenance man at the Mosley Motel.

(Id. at 47). There was

no written contract regarding the work relationship. (Id. at
49).

In fact, Partridge testified that there was never even

an oral agreement regarding the amount Partridge would be paid
for his hours worked. (Partridge Dep. Doc. # 45-1 at 21).
Partridge explained that he was initially paid $100 in cash
per week and was allowed to stay in a one-room motel unit with
his family free of charge as a part of his compensation. (Id.
at 16, 27, 63).1

Partridge held this position from November

of 2012, through April of 2014. (Id. at 31).

During this

time, he was given a raise to $125, and then to $150 per week.
(Id. at 52-54).

1

Partridge explained that, prior to being hired by Mosley
Motel, he paid $265 per week for the motel room, which was the
customary rate. (Id. at 13).
3

As a maintenance man, Partridge completed numerous and
varied tasks.

For the first two months of his employment, he

worked alongside Richard Petry, a long-time employee of the
Motel. (Id. at 23).

Thereafter, at Kadury’s direction, Petry

became a security guard and Partridge “pick[ed] up” Petry’s
duties. (Id. at 29).
Partridge learned of the tasks that he was required to
perform by checking a maintenance log as well as a schedule
posted at the Motel’s front desk. (Id. at 22, 44).

In

addition, Kadury contacted Partridge by phone and by radio
with tasks and directions. (Id. at 23).

Partridge also

explained that guests of the Motel would just come to his room
with requests for assistance. (Id. at 36).
Kadury

testified

that

the

Motel

had

problems

with

roaches, spiders, wasps, and bed bugs. (Kadury Dep. Doc. # 471 at 59). As a maintenance man, Partridge helped Motel guests
relocate

when

their

rooms

were

(Partridge Dep. Doc. # 45-1 at 56).

infested

with

bed

bugs.

Partridge also testified

that he helped guests that were locked out of their rooms,
fixed leaking toilets, helped guests with issues with their
in-room televisions, dealt with major water leaks, removed
faulty air conditioning units, cleaned pool filters, pressure
washed the grounds, and performed many other miscellaneous
tasks. (Id. at 56-58). Partridge also stated in a declaration

4

that

“While

I

was

working

at

the

Mosley

Motel,

I

was

instructed by Al Kadury numerous times to perform work at a
warehouse that was owned by Affordable Realty and Property
Management.” (Partridge Decl. Doc. # 51-1 at ¶ 10).
Partridge indicated that Kadury warned him to always stay
busy or he would not be paid. (Partridge Dep. Doc. # 45-1 at
27).

As such, when there were no maintenance items listed on

the maintenance log for Partridge to perform, he would help
the

housekeeper

perform

general

cleaning

tasks,

such

as

sweeping, or he would put on a security jacket and perform the
function of a security guard. (Id. at 25-27, 58).

Partridge

testified that he owns some tools, but that he did not use his
own tools (with the exception of his own drill) to complete
work for the Motel. (Id. at 58-59).

Partridge did not

complete tasks that required specialized skills or a license.
For

instance,

Kadury

or

Partridge

called

plumbers,

air

conditioner technicians, and other specialists when a higher
level of skill was needed. (Kadury Dep. Doc. # 47-1 at 58).
Partridge described working overtime hours and testified
that he kept a journal of his hours worked. (Partridge Dep.
Doc. # 45-1 at 41, 47).

Kadury, on the other hand, explained

that some records were created on these matters, but that he
destroyed

all

of

the

records

pertaining

to

employment. (Kadury Dep. Doc. # 47-1 at 63, 74).

5

Partridge’s

Kadury testified that he ultimately terminated Partridge
because Partridge was “repeatedly drunk” and pulled a gun on
a hotel guest. (Id. at 65-66).2

Kadury added during his

deposition that he considered Partridge’s drinking “a very
serious problem.” (Id. at 72).

Kadury described a holiday

party at the Mosley Motel in which Kadury “physically had to
remove [Partridge] because [] Partridge and his wife fought
physically, like fighting, fighting outside.

I had to take

him and calm him down and threaten him that if he’s not
calming down and going to his room I have to fire him and kick
him out of the motel.” (Id.).
II.

Procedural History
On April 20, 2015, Partridge filed a two-count Fair Labor

Standards Act Complaint seeking unpaid minimum wages and
unpaid overtime compensation from Mosley Motel, Affordable
Realty, and Kadury. (Doc. # 1). Partridge filed an Amended
Complaint under the FLSA on June 30, 2015. (Doc. # 33).
Mosley Motel and Affordable Realty jointly filed their answer
and affirmative defenses on July 14, 2015. (Doc. # 35).
Kadury also filed his answer and affirmative defenses on July
14, 2015. (Doc. # 36).
On October 30, 2015, Affordable Realty filed its Motion

2

Partridge maintains that, rather than being fired, he
quit on his own volition. (Partridge Dep. Doc. # 45-1 at 33).
6

for

Summary

Judgment

seeking

an

Order

that

it

is

not

Partridge’s employer under the FLSA. (Doc. # 44). On October
31, 2015, Mosley Motel and Kadury jointly filed a Motion for
Summary Judgment to determine Partridge’s employment status,
either as an independent contractor or employee. (Doc. # 46).
In addition, Partridge has filed a Motion for Partial Summary
Judgment to determine the following: (1) whether Partridge was
an

employee

of

Mosley

Motel;

(2)

whether

Kadury

is

individually liable for unpaid minimum and overtime wages; (3)
whether Mosley Motel was an enterprise engaged in commerce as
defined by the FLSA; (4) whether Defendants violated the
record

keeping

provisions

of

the

FLSA;

and

(5)

whether

Defendants are entitled to wage set-off towards Partridge’s
minimum wage and overtime wage recovery. (Doc. # 48).

As

previously stated, all Motions are ripe for the Court’s
review.
As explained below, the Court grants Partridge’s Motion
and denies the Motion filed by Affordable Realty as well as
the Motion jointly filed by Mosley Motel and Kadury.
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

7

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 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

8

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, 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)). However, if the non-movant’s response consists of
nothing

“more

allegations,”

than
summary

a

repetition

judgment

is

of

his

conclusional

not

only

proper,

but

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

Analysis
A.

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).
9

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)
(5)
(6)

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;
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)).
Mosley Motel and Kadury have filed a very brief Motion

10

for Summary Judgment (Doc. # 46). The Motion is not organized
into helpful subheadings, nor do these Defendants provide a
concise statement of the issues on which they seek relief.
Instead, at the conclusion of the Motion, Defendants request
that the Court “grant their Motion For Summary Judgment, plus
such other and further relief as this Court deems reasonable.”
(Doc. # 46 at 5).

The only issue that Kadury and Mosley Motel

briefed

Motion

in

the

with

any

specificity

is

whether

Partridge was an employee or an independent contractor.

That

issue has also been raised by Partridge in his Motion for
Partial Summary Judgment, among other issues.

As discussed

below, the Court’s consideration of the relevant factors leads
to the determination that Partridge was an employee and not an
independent contractor.
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

that the following factors, among others, are 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

11

(4) maintained employment records.” Villarreal v. Woodham, 113
F.3d 202, 205 (11th Cir. 1997).
The application of these factors and others militates in
favor of finding that Partridge was an employee.

Kadury had

the power to hire and to fire Partridge, and placed no
limitations on those rights by contract “as would often be the
case

in

dealing

contractual

with

clause

an

independent

imposing

liability

contractor
or

a

and

penalty

a
for

cancellation of the work.” Solis v. A+ Nursetemps, Inc., No.
5:07-cv-182, 2013 U.S. Dist LEXIS 49595, at *18 (M.D. Fla.
Apr. 5, 2013).
Partridge

was

also

subject

to

extensive

control

by

Kadury with respect to his assigned tasks and work schedule.
(Partridge Dep. Doc. # 45-1 at 23-27). Kadury scheduled
Partridge

to

Partridge

was

work
also

weekdays

and

expected

to

weekends.
be

(Id.

on-call,

to

at

45).

check

a

maintenance log, and he even carried a radio. (Id. at 23).
Rather than coming and going as he pleased, Partridge was
expected to abide by Kadury’s work schedule.
In Solis, 2013 U.S. Dist. LEXIS 49595 at *18, 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

12

work to be performed.”

Here, by contrast, Partridge was paid

by a flat rate (starting at $100 per week and, after two
raises, $150 per week). (Partridge Dep. Doc. # 45-1 at 27,
54).

Partridge did not have any say in the amount that he was

paid. (Id. at 21).
In addition to controlling the manner in which Partridge
was hired, paid, and scheduled to work, the record also
reflects that Kadury had Partridge follow another employee,
Richard Petry, for training purposes. (Id. at 23). “The
provision

of

relationship

training
.

.

.

[]

[and]

indicates
the

an

employee-employer

non-provision

of

training

indicates an independent contractor relationship.” Robles v.
RFJD Holding Co., Inc., No. 11-cv-62069, 2013 U.S. Dist. LEXIS
77524, at *13-14 (S.D. Fla. June 3, 2013). Here, Partridge
worked hand-in-hand with Petry for the first two months of his
employment to learn the tasks and expectations.
Dep. Doc. # 45-1 at 23).

(Partridge

While Partridge had some experience

in handy work, he was self taught and relied on Petry and
Kadury for guidance. (Id.).
Although “an employer does not need to look over his
workers’ shoulder every day in order to exercise control,” it
appears that Kadury did exactly that in this case. Robles,
2013 U.S. Dist. LEXIS 77524, at *14.

Kadury hired Partridge,

dictated his duties and his schedule, set his pay, and

13

provided training through Petry. The control Kadury exercised
over Partridge was significant, rather than de minimis, and
militates in favor of finding employee status.
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).
There is no indication in the record that Partridge had
the opportunity to earn additional income or profit through
the exercise of managerial skill or increased efficiency. Once
Partridge was established as a Motel maintenance man, he was
paid a flat rate.
the

record

His pay was not based on his efficiency and

does

not

reflect

that

Partridge

exercised

managerial skills during his tenure at the Motel. In addition,
Partridge neither made an investment in Mosley Motel nor faced
a loss.

See Sakasci v. Quicksilver Delivery Sys., No. 8:06-

cv-1297, 2007 U.S. Dist. LEXIS 88747, at *22 (M.D. Fla. Nov.
28,

2007)(“because

[defendant]

14

controlled

the

factors

primarily responsible for determining its [workers’] earnings,
this

factor

weights

in

favor

of

finding

an

employment

relationship”); Molina v. S. Fla. Express Bankserv, Inc., 420
F. Supp. 2d 1276, 1286 n.28 (M.D. Fla. 2006) (stating that
when a business controls the primary factors governing its
workers’ earnings, employee status is suggested). Upon due
consideration, the Court determines that this factor weighs in
favor of finding an employer-employee relationship.
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, Partridge did not make any such investment. See also
Demers v. Adams Homes of NW Fla., Inc., No. 6:06-cv-1235, 2007
U.S.

Dist.

defendant

LEXIS

paid

82797

for

the

(M.D.

Fla.

majority

of

Nov.

7,

2007)

plaintiff’s

(that

supplies

weighed in favor of an employer-employee relationship).
There is no indication that Partridge provided supplies
or tools (with the exception of his personal drill) so as to
support a finding of independent contractor status. Partridge
primarily utilized the equipment and supplies provided by
Kadury. (Partridge Dep. Doc. # 45-1 at 10, 62-63).

The Court

compares such nominal and de minimis outlay with Defendants’

15

substantial investments (including supplies to maintain a
motel with over 100 rooms) and concludes that this factor
strongly favors employee status for Partridge. See Harrell,
992 F. Supp. at 1350 (considering the employer’s “material
expenditures,”

which

included

“advertising,

facilities,

maintenance, etc.”).
4.

Special Skill Required to Perform the Job

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

Molina, 420 F.

Supp. 2d at 1286. 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.
Partridge testified that he does not have a license,
dropped out of school in the tenth grade, and that he is a
self-taught maintenance man. (Partridge Dep. Doc. # 45-1 at
11). Partridge carried out various tasks that did not require
a specialized skill, such as sweeping, cleaning pool filters,
power washing the motel grounds, moving furniture around, and
letting locked out guests into their rooms. When Kadury asked

16

Partridge to complete tasks that required more specialized
knowledge,

Partridge

would

have

to

call

an

electrician,

plumber or A/C repair man. (Kadury Dep. Doc. # 47-1 at 58).
Partridge was not required to perform any specialized tasks.
In addition, he did not have a business license or carry
occupational

insurance

and

does

not

have

a

diploma. (Partridge Dep. Doc. # 45-1 at 11).

high

school

Thus, this

factor weighs in favor of finding employee status as to
Partridge.
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.

Partridge worked

exclusively at the Mosley Motel from November of 2012, through
April of 2014, approximately 17 months. (Partridge Dep. Doc.
#

45-1

at

31).

The

duration

of

Partridge’s

employment

accordingly supports finding that he was an employee, rather
than an independent contractor. In addition, nothing in the
record suggests that a temporal limitation was placed on
Partridge’s

employment.

Rather,

Partridge’s

working

relationship ended only after he was accused of threatening a
Motel guest with a gun.

Thus, the Court determines that this

factor favors employee status.

17

6.
Finally,

Integral Services
the

Court

considers

the

extent

to

which

Partridge’s services were an integral part of the Mosley
Motel.

Partridge provided numerous services from personally

assisting guests that were locked out of their rooms, to
helping remediate bed bug infestations, to fixing leaking
toilets.

He also assisted the housekeeper, power washed the

grounds, and provided a long list of other services as
detailed above.

The Court finds that these services were

integral to Mosley Motel.
“Generally, the more integral the work, the more likely
the worker is an employee, not an independent contractor.”
Robles,

2013

U.S.

citation omitted).

Dist.

LEXIS

77524,

at

*23.

(internal

Under the facts presented, the Court

determines that this factor also weighs in favor of finding
employee status.
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 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
18

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
circumstances of the whole activity.”).
Here, each of the relevant factors considered in the
Court’s calculus supports finding Partridge was an employee
rather than an independent contractor.

The Court accordingly

grants Partridge’s Motion for Summary Judgment and denies
Mosley Motel and Kadury’s Motion for Summary Judgment to the
extent that it finds Partridge was an employee entitled to the
protections of the FLSA.
B. Kadury may be Held Individually Liable under the FLSA
Under

the

FLSA,

a

plaintiff

employer or multiple employers.

may

sue

an

individual

Kendrick v. Eagle Int'l

Group, LLC, No. 8-80909-CIV, 2010 WL 1257674, at *3 (S.D. Fla.
May 26, 2010). “The FLSA contemplates that there may be
several

simultaneous

employers

who

are

responsible

for

compliance with the FLSA.” Id. (citing Falk v. Brennan, 414
U.S. 190, 195 (1973)).

However, an individual cannot be held

personally liable for violating the overtime provision of the
FLSA unless he is an “employer” as that term is defined by the
Act.

Alvarez Perez v. Sanford-Orlando Kennel Club, Inc., 515

19

F.3d 1150, 1160 (11th Cir. 2008).

The Act broadly defines

“employer” as “any person acting directly or indirectly in the
interest of an employer in relation to an employee.” 29 U.S.C.
§ 203(d).
Partridge seeks entry of summary judgment on the issue of
whether Kadury may be held individually liable for any FLSA
violations that may be found in this case. Defendants, on the
other

hand,

argue

that

Kadury

cannot

be

considered

an

“employer” under the FLSA because he is neither an officer nor
director of the Mosley Motel and was merely a manager. The
Court finds Defendants’ argument unpersuasive.
“Controlling Eleventh Circuit precedent mandates that the
issue of whether the defendant is an employer is a question of
law, ‘with the subsidiary findings being issues of fact.’”
Vondriska

v.

Cugno,

No.

8:07-cv-1322-T-24-TGW,

2010

WL

3245426, at *2 (M.D. Fla. Aug. 17, 2010)(quoting Patel, 803
F.2d 632, 634 n.1 (11th Cir. 1986)). “The subsidiary findings
of fact are made by ‘entertaining and assessing the evidence
relevant to the inquiry called for by a given factor . . .’
and in doing so, ‘the court is, in effect, conducting a
miniature bench trial.’” Id. (quoting Martinez-Mendoza v.
Champion Int’l Corp., 340 F.3d 1200, 1209 & 1209 n.27 (11th
Cir. 2009)).

“Ultimately, the answers to the individual

inquiries are viewed together and the Court must determine,

20

from those answers, whether the [employees] established [the
putative employer’s employer] status by a preponderance of the
evidence – a question of law.” Id. (internal quotations
omitted).
The Supreme Court has emphasized the “expansiveness” of
the FLSA’s definition of employer. Falk, 414 U.S. at 195
(1973).

“Courts

consistently

have

held

that

the

term

‘employer’ is not limited to the narrow or technical concepts
of employment but rather is given a broad meaning to carry out
the purpose of the Act.”

Brock v. VAFLA Corp., 668 F. Supp.

1516, 1520 (M.D. Fla. 1987)(citations omitted); see also
Alvarez Perez, 515 F.3d at 1160 (“[W]hether an individual
falls within this definition does not depend on technical or
isolated factors but rather on the circumstances of the whole
activity.”)(citations omitted). Further, “the parameters of §
203(d) are sufficiently broad to encompass an individual who
. . . acts, or has the power to act, on behalf of the
corporation vis-a-vis its employees.”

Brock, 668 F. Supp. at

1520 (citations omitted).
In deciding whether a party is an employer, courts have
often applied the “economic reality” test instead of common
law concepts of agency. See Goldberg v. Whitaker House Coop.,
366 U.S. 28, 33 (1961). “The economic reality test includes
inquiries into whether the alleged employer (1) had the power

21

to hire and fire the employees, (2) supervised and controlled
employee work schedules or conditions of employment, (3)
determined the rate and method of payment, and (4) maintained
employment records.” Villarreal v. Woodham, 113 F.3d 202, 205
(11th Cir. 1997).
Kadury’s

own

deposition

testimony

shows

that

he

supervised the day-to-day operations of the Mosley Motel,
prepared

the

weekly

payroll,

hired

and

fired

employees

(including Partridge), exercised control over Partridge’s work
hours and tasks, and directly supervised Partridge. (Kadury
Dep. Doc. # 47-1 at 31). The following deposition excerpt is
illustrative of Kadury’s role at the Motel:
Q: Who supervises the office employees?
A: Myself.
Q: Who supervises the maintenance men?
A: Myself.
Q: Groundsmen?
A: Myself.
Q: Housekeeper?
A: I get the privilege to do that, too.
Q: Who can fire the office employees?
A: Either myself or Mr. Shimshoni.
Q: Have you ever fired anybody?
A: Oh yes.
Q: Who did you fire?
A: Harry [Partridge].
. . .
Q: Who else have you fired?
A: Quite a few. I cannot recall names right now.
There’s quite a few.
. . .
Q: Did you fire maintenance men?
A: Yes, I did.
Q: Did you fire groundsmen?
A: Yes, I have.
Q: And you’ve fired housekeepers?
22

A: Yes, I have.
Q: Did you ever fire an office employee?
A: Yes, I have.
(Id. at 31-32).

This evidence brings Kadury within the

definition of an employer under the FLSA.
The

Court

finds

support

numerous other cases.

for

this

determination

in

In Brock, for example, the court

imposed personal liability for FLSA violations on an amusement
park general manager who oversaw the operation of the park on
a

day-to-day

basis,

determined

the

duties

of

employees,

occupied an office in which payroll records and records of
hours were maintained, and discussed personnel matters with
Brock, 668 F. Supp. at 1517.

the corporation’s directors.

The court concluded that it was clear the individual defendant
“acted directly and indirectly in the interest of defendant []
Corporation in relation to its employees.”

Id.

Similarly, in Kendrick, the court refused to dismiss an
FLSA claim against a company’s sales manager where the manager
oversaw the day-to-day operations of the office, required all
employees

to

report

to

him

as

manager,

approved

leave

requests, supervised and evaluated the plaintiff, and directed
the plaintiff in her hours, work, and job duties. Kendrick,
2010 WL 1257674, at *3.
Based on the undisputed evidence and the analogous cases
discussed

herein,

this

Court

23

finds

that

Kadury’s

responsibilities as manager of Mosley Motel are sufficient to
hold

him

individually

liable

definition of an “employer.”

under

the

FLSA’s

expansive

Therefore, the Court grants

Partridge’s Motion for Summary Judgment on this point.3

In

the event that a violation of the FLSA is found in this case,
Kadury may be held individually liable to Partridge for the
damages.
C.

Affordable Realty as a Joint Employer

Along the same lines, Affordable Realty seeks a summary
judgment finding that it is not Partridge’s employer under the
FLSA.

The FLSA defines an employer as “any person acting

directly or indirectly in the interest of an employer in
relation to an employee.” 29 U.S.C. § 203(d). An entity
“employs”

a

person

under

the

FLSA

if

permit[s]” the individual to work. Id.

it

“suffer[s]

or

at § 203(g). An

employee may have more than one employer. See 29 C.F.R. §
791.2(a). “A determination of whether the employment by the
employers is to be considered joint employment or separate and
distinct employment for purposes of the act depends upon all
the facts in the particular case.” Id. A joint-employment

3

As noted, the Motion for Summary Judgment filed by
Mosley Motel and Kadury (Doc. # 46) is not detailed nor is it
presented in such a way that the Court can ascertain the
arguments contained therein. To the extent Kadury’s potential
liability under the FLSA may be raised in that Motion, the
Court denies the Motion.
24

relationship will generally be found to exist in situations
such as:
(1) Where there is an arrangement between the
employers to share the employee’s services, as, for
example, to interchange employees; or
(2) Where one employer is acting directly or
indirectly in the interest of the other employer
(or employers) in relation to the employee; or
(3) Where the employers are not completely
disassociated with respect to the employment of a
particular employee and may be deemed to share
control of the employee, directly or indirectly, by
reason of the fact that one employer controls, is
controlled by, or is under common control with the
other employer.
29 C.F.R. § 791.2(b).
Here, there is a genuine issue of material fact regarding
whether Affordable Realty can be considered Partridge’s joint
employer along with Mosley Motel. Affordable Realty has filed
various affidavits in which its management personnel and
shareholders have attested that Affordable Realty does not
share employees with Mosley Motel. (Shimshoni Aff. Doc. # 44-1
at ¶ 6; Mosley Aff. Doc. # 44-2 at ¶ 7; Portnoy Aff. Doc. #
44-3 at ¶ 7).

Notably, the affidavits do not disclaim the

existence of an employment relationship with Partridge. In
addition,

Avi Portnoy, the sole shareholder of Affordable

Realty, has sworn that Affordable Realty does not own any
warehouses, but rather that it owns apartment buildings and
other residential holdings.

(Portnoy Aff. Doc. # 44-3 at ¶

25

9).
On the other hand, Partridge submits in a declaration
that while he was working for Mosley Motel, Kadury instructed
him on numerous occasions to perform work at a warehouse that
was owned by Affordable Realty. (Partridge Decl. Doc. # 51-1
at ¶ 10). This constitutes a genuine dispute of material fact
that cannot be resolved at the summary judgment stage. The
Court must avoid weighing conflicting evidence or making
credibility determinations on summary judgment. Anderson, 477
U.S. at 249. Rather, “the evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in
his favor.” Id.

The Court is prohibited from making a

credibility determination at this procedural juncture and
accordingly denies Affordable Realty’s Motion for Summary
Judgment.
D. Enterprise Coverage under the FLSA
In order to be eligible for FLSA overtime, an employee
must demonstrate that he is covered by the FLSA. Josendis v.
Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1299
(11th Cir. 2011). In order to demonstrate FLSA coverage, an
employee must show “individual coverage” –- “that they were
engaged

in

commerce

or

in

the

production

of

goods

for

commerce,” or “enterprise coverage” –- that the defendant
employer is an enterprise engaged in commerce. See 29 U.S.C.

26

§ 207(a)(1).

In this case, Partridge asserts enterprise

coverage as to the Mosley Motel.

At this juncture, Partridge

seeks a summary judgment determining that Mosley Motel is an
enterprise employer covered by the FLSA.
An employer falls under the enterprise coverage
section of the FLSA if it (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 and
person and (2) has at least $500,000 of annual
gross volume of sales made or business done.
Polycarpe v. E&S Landscaping Serv., Inc., 616 F.3d 1217, 1220
(11th Cir. 2010)(citing 29 U.S.C. § 203(s)(1)(A).
It is undisputed that the $500,000 threshold has been met
in this case. (Shimshoni Dep. Doc. # 48-1 at 10). The dispute
outlined by the parties concerns whether the Mosley Motel is
an enterprise that “has employees engaged in commerce.”

For

an employee to be “engaged in commerce” under the FLSA, that
employee must be directly participating in the actual movement
of persons or things in interstate commerce by (1) working for
an

instrumentality

of

interstate

commerce

(for

example,

transportation or communication industry) or (2) by regularly
using the instrumentalities of interstate commerce in his work
(for

example,

regular

and

recurrent

use

of

interstate

telephone, mails, or travel. See 29 C.F.R. § 776.23(d)(2); 29
C.F.R. § 776.24; Opinion Letter, FLSA, 1999 WL 1002373 (Mar.
5, 1999)(“Such employees include those who regularly handle
27

interstate mail and telephone calls, engage in banking or
credit card transactions, or receive or handle goods or
materials from or destined for out-of-state sources.”).
Kadury testified that the Motel employs two front desk
employees who make work related telephone calls, conduct
credit card transactions, and utilize facsimiles. (Kadury Dep.
Doc. # 47-1 at 25-26).
and

a

cellular

In addition, the Motel has a website

telephone.

(Id.

at

26-27).

From

these

undisputed facts, the Court grants Partridge’s Motion for
Partial Summary Judgment to the extent it determines that
Mosley Motel is an enterprise covered under the FLSA.
E. Violation of FLSA Record Keeping Requirements
A covered FLSA employer must “make, keep, and preserve”
records

for

each

employee’s

“wages,

hours,

and

other

conditions and practices of employment.” 29 U.S.C. § 211(c).
Specifically, employers must record and preserve, for each
employee, the “hours worked each workday and total hours
worked each workweek” as well as other administrative records.
29 C.F.R. § 516.2(7).
Kadury testified that he did not keep records of the cash
payments made to workers such as Partridge. (Kadury Dep. Doc.
# 47-1 at 42). He also explained that there were some records
created regarding the tasks Partridge completed, but the
records were disposed of: “I never kept anything.

28

As long as

everything went fine . . . I didn’t need it anymore.” (Id. at
53). When asked, “Are there any records that reflect the
amount of hours Mr. Partridge worked for the motel,” Kadury
responded: “No” and that he had “not a clue” as to how many
hours Partridge worked per week. (Id. at 63).

Kadury also

mentioned

respect

that

a

report

was

created

with

to

Partridge’s alleged gun incident, but that he did not keep
that report. (Id. at 74). Similarly, Michael Shimshoni, the
Vice President of Mosley Motel, answered “no” when asked: “Do
any records exist reflecting the amount of hours [Partridge]
worked?” (Shimshoni Dep. Doc. # 48-1 at 57).

Based on this

uncontroverted testimony, the Court grants Partridge’s Motion
for Partial Summary Judgment with respect to Mosley Motel’s
violation of the record keeping provision of the FLSA.
F.

Wage Set-Off Documentation

In Donovan v. New Floridian Hotel, Inc., 676 F.2d 468
(11th Cir. 1982), the court explained that Section 3(m) of the
FLSA “allows employers to include the reasonable cost of
servicing meals, lodging, or other facilities in employee
wages for purposes of the FLSA.” Id. at 474. And, “when
calculating the amount of back wages due to an employee under
the FLSA . . . the employer is entitled to a credit for the
reasonable cost of providing the meals and lodging.” Id.
However, in order to receive this benefit, the employer must

29

maintain and preserve contemporaneous records substantiating
the cost of furnishing lodging as well as other comprehensive
records “showing additions or deductions from wages paid for
boarding, lodging, or other facilities on a work week basis.”
29 C.F.R. § 516.27(a); Donovan, 676 F.2d at 474.
In this case, none of the Defendants have come forward
with

documents

pertaining

to

any

deductions

made

from

Partridge’s compensation, nor have Defendants even hinted at
the

existence

of

any

documents

regarding

the

cost

of

furnishing lodging to Partridge, so as to take advantage of
Section 3(m) of the FLSA.

In addition, Defendants’ blase

statement that the lodging was “valued at $265 per week” is
unavailing because the record shows that $265 was the amount
charged to the public to rent the room weekly (such that
Defendants could profit from the rental). (Doc. # 46 at 2).
See e.g. Hassinger v. Sun Way Enters., Inc., 6:12-cv-1052-Orl28GJK, 2014 U.S. Dist. LEXIS 73325, at *31 (M.D. Fla. May 29,
2014)(“reasonable cost is not more than the actual cost to the
employer

of

the

board,

lodging

or

other

facilities

and

reasonable cost does not include a profit to the employer or
any affiliated person.”)(internal citations omitted); Davis
Brothers, Inc. v. Donovan, 700 F.2d 1368, 1371 (11th Cir.
1983)(“The credit is not for the retail value of the meals,
but is limited to reasonable cost to the employer of providing

30

the meals.”).

Because Defendants failed to meet the record

keeping requirements of 29 C.F.R. § 516.27, Defendants cannot
use the cost of the furnished lodging to reduce or offset
Partridge’s

minimum

Partridge’s

Motion

wage
for

or

overtime

Summary

recovery,

Judgment

is

if

any.

accordingly

granted.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

Affordable Realty and Property Management, Inc.’s Motion
for Summary Judgment (Doc. # 44) is DENIED.

(2)

Mosley Motel of Saint Petersburg, Inc. and Al Kadury’s
Motion for Summary Judgment (Doc. # 46) is DENIED.

(3)

Harry Partridge’s Motion for Partial Summary Judgment
(Doc. # 48) is GRANTED.
DONE and ORDERED in Chambers, in Tampa, Florida, this 6th

day of January, 2016.

31