Moreira et al v. Americlean Building Maintenance, Inc. et al
Filing
66
ORDER denying 50 Motion for Summary Judgment; granting in part and denying in part 51 Motion for Partial Summary Judgment. Signed by Judge Cecilia M. Altonaga on 2/25/2016. (ps1)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 15-22606-CIV-ALTONAGA/O’Sullivan
MELBA MOREIRA, et al.,
Plaintiffs,
v.
AMERICLEAN BUILDING
MAINTENANCE, INC., et al.,
Defendants.
___________________________/
ORDER
THIS CAUSE came before the Court upon two motions for partial summary judgment.
Plaintiffs, Melba Moreira (“Melba”), Raul Moreira (“Raul”), and Rafaela Leonor Ruiz
(“Rafaela”) (collectively, “Plaintiffs”), filed a Motion . . . (“Plaintiffs’ Motion”) [ECF No. 51] on
January 20, 2016. Defendants, Americlean Building Maintenance, Inc. (“Americlean”), and
owner James S. Johnson (“Johnson”) (collectively, “Defendants”), filed a Response . . .
(“Defendants’ Response”) [ECF No. 53] on February 8, 2016; Plaintiffs filed a Reply . . .
(“Plaintiffs’ Reply”) [ECF No. 63] on February 12, 2016. Additionally, Johnson filed a Motion .
. . (“Johnson’s Motion”) [ECF No. 50] on January 20, 2016. Plaintiffs filed a Response . . .
(“Plaintiffs’ Response”) [ECF No. 54] on February 8, 2016; Johnson filed a Reply . . .
(“Johnson’s Reply”) [ECF No. 64] on February 18, 2016. The Court has carefully considered
the parties’ written submissions,1 the record, and applicable law.
Plaintiffs also filed a Statement of Material Facts . . . (“Plaintiffs’ SMF”) [ECF No. 52]; in response,
Defendants filed a Statement of Material Facts . . . (“Defendants’ SMF Response”) [ECF No. 53-1]).
Johnson included a Statement of Material Undisputed Facts (“Johnson’s SMF”) within the Johnson
Motion (see [ECF No. 50] 1–3); and Plaintiffs filed a Response . . . (“Plaintiffs’ SMF Response”) within
Plaintiffs’ Response (see [ECF No. 54] 2–3).
1
CASE NO. 15-22606-CIV-ALTONAGA/O’Sullivan
I. BACKGROUND
This case arises out of an employment dispute. (See generally Amended Complaint . . .
(“Amended Complaint”) [ECF No. 28]). Melba was hired by Americlean to perform cleaning
services in a building in West Palm Beach, Florida. (See Pls.’ SMF ¶ 1). Raul and Rafaela,
Melba’s husband and sister, assisted Melba in the performance of her cleaning services for
Americlean in exchange for a portion of Melba’s Americlean earnings, but never applied to work
for Americlean themselves. (See Johnson’s SMF ¶¶ 5, 7). Johnson owns Americlean (see id. ¶
8), but does not oversee its day-to-day operations or directly supervise employees (see id. ¶ 10).
Instead, Johnson delegates that work to non-party Patricio Arreaga (“Arreaga”), who hired
Melba. (See id. ¶ 12). Plaintiffs bring two claims against Defendants, alleging minimum wage
violations under both state law and the federal Fair Labor Standards Act, 29 U.S.C. section 201
et seq. (“FLSA”). (See generally Am. Compl.).
II. LEGAL STANDARD
Summary judgment is rendered if the pleadings, the discovery and disclosure materials
on file, and any affidavits show there is no genuine issue as to any material fact and the movant
is entitled to judgment as a matter of law. See FED. R. CIV. P. 56(a), (c). “An issue of fact is
material if it is a legal element of the claim under the applicable substantive law which might
affect the outcome of the case.” Burgos v. Chertoff, 274 F. App’x 839, 841 (11th Cir. 2008)
(internal quotation marks omitted) (quoting Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th
Cir. 1997)). “A factual dispute is genuine if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Channa Imps., Inc. v. Hybur, Ltd., Case No. 0721516-CIV, 2008 WL 2914977, at *2 (S.D. Fla. July 25, 2008) (internal quotation marks
omitted) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). At summary
2
CASE NO. 15-22606-CIV-ALTONAGA/O’Sullivan
judgment, the moving party has the burden of proving the absence of a genuine issue of material
fact, and all factual inferences are drawn in favor of the nonmoving party. See Allen, 121 F.3d at
646.
III. ANALYSIS
Plaintiffs move for partial summary judgment on the issues of: 1) whether all three
Plaintiffs are considered employees under the FLSA; and 2) whether Defendants may assert the
doctrine of unclean hands as an affirmative defense. (See generally Pls.’ Mot.). Johnson moves
for partial summary judgment on the issue of whether he may be considered an employer under
the FLSA in his individual capacity. (See generally Johnson’s Mot.).
A. Plaintiffs’ Motion
According to Plaintiffs, the undisputed facts show they were Americlean employees as
defined by the FLSA. (See Pls.’ Mot. 2–5). Whether a plaintiff is an employee is a question of
law, and can be determinative because the FLSA does not protect individuals in the absence of a
qualifying employer-employee relationship.
See Freeman v. Key Largo Volunteer Fire &
Rescue Dep’t, Inc., 841 F. Supp. 2d 1274, 1277–78 (S.D. Fla. 2012). To determine whether a
plaintiff is an employee, courts apply a wide-ranging “economic reality” test that considers the
degree of actual and potential control of the purported employer over the purported employee.
See id. at 1278; Villarreal v. Woodham, 113 F.3d 202, 205 (11th Cir. 1997).
Plaintiffs argue they were all employees because they do not own any of the equipment
or supplies used, worked for Defendants’ benefit, were paid by Defendants, and were supervised
and disciplined by Defendants’ supervising employees.
concede Melba is an employee.
(See Defs.’ Resp. 3).
(See Pls.’ Mot. 4–5).
Defendants
Yet Defendants dispute Plaintiffs’
assertions regarding Raul and Rafaela, who Defendants argue neither applied to, nor were hired
3
CASE NO. 15-22606-CIV-ALTONAGA/O’Sullivan
or paid by, Americlean (see id. 3–8), and whose assistance to Melba was even unknown to
Defendants (see id. 7). Defendants assert if Raul and Rafaela were indirectly providing cleaning
services for Americlean, it is because Melba asked them to work for her, and it is only Melba
who promised to — and did — pay Raul and Rafaela. (See id. 7–8).
In their Reply, Plaintiffs argue Defendants have made conflicting representations “that
evidence a sham.” (Pls.’ Reply 5). For example, Plaintiffs fault Arreaga for saying he had no
knowledge Raul and Rafaela were providing cleaning services at the building when a security
sign-in sheet shows Raul and Rafaela signed in many times. (See id.; Ex. [ECF No. 63-1]).
Plaintiffs fail to establish Arreaga has ever seen the building’s internal security sign-in sheets,
which are not Americlean documents. Plaintiffs also argue Defendants’ potentially contradictory
statements about Melba’s employment status are more than a question of labels or semantics (see
Pls.’ Reply 4–5), but none of these arguments negates the existence of a genuine dispute of
material fact as to whether Raul and Rafaela were employees. No amount of uncertainty or
contradiction regarding Melba’s employment status obviates this genuine dispute of material
fact. Therefore, on this issue, Plaintiffs’ Motion is granted only as to Melba’s undisputed status.
As for the unclean hands affirmative defense, Defendants fail to mention this argument in
their Response. Therefore, Plaintiffs’ Motion is granted as to this issue. See Celotex Corp. v.
Catrett, 477 U.S. 317, 332 n.3 (1986) (“Summary judgment should be granted if the nonmoving
party fails to respond.”).
B. Johnson’s Motion
Johnson argues he cannot personally be liable under the FLSA because he did not
supervise Plaintiffs or exert any control over Americlean’s day-to-day operations.
(See
Johnson’s Mot. 5 (citing Patel v. Wargo, 803 F.2d 632, 638 (11th Cir. 1986))). Plaintiffs argue
4
CASE NO. 15-22606-CIV-ALTONAGA/O’Sullivan
Johnson’s position is based on old case law, and under more recent precedent — which Plaintiffs
argue “shifts the focus” from the old operational control test — courts now look more “to
culpability in how the FLSA violation came to be.” (Pls.’ Resp. 7 (citing Lamonica v. Safe
Hurricane Shutters, Inc., 711 F.3d 1299 (11th Cir. 2013) (“Lamonica”))). In accordance with
Lamonica, Plaintiffs argue Johnson may be personally liable because the asserted FLSA
violations stem from Americlean’s “subcontractor payment system,” and Johnson personally put
that policy in place. (Id. 9). Nevertheless, Johnson insists: 1) reliance on Lamonica is misplaced
because it did not change the fundamental test and is factually distinguishable (see Johnson’s
Reply 5–6); 2) courts still look to operational control, and Plaintiffs mischaracterize Johnson’s
complete lack of involvement in Americlean’s day-to-day operations (see id. 2–5); and 3)
Johnson cannot be held liable based on these facts, as demonstrated by the closer factual
analogue of Santos v. Cuba Tropical, Inc., 829 F. Supp. 2d 1304 (S.D. Fla. 2011) (see Johnson’s
Reply 6–8).
No party cites a persuasively analogous case.2 Moreover, the Court disagrees with
Plaintiffs’ assertion Lamonica created a new test for individual liability or even shifts the focus
of existing precedent. Rather, Lamonica clarified the long-standing test for individual liability
under the FLSA — day-to-day operational control or direct responsibility for supervision — can
be satisfied indirectly. See Lamonica, 711 F.3d at 1313 (“[W]e must clarify the degree and type
of operational control that will support individual liability under the FLSA.” (alteration added)).
2
For example, Santos involved a former, yet still nominal, owner who had suffered a heart attack, turned
over the business to his son, and could not even name the managers in charge of the business. See
generally 829 F. Supp. 2d 1304. Here, Johnson delegated authority directly to his single, hand-picked
supervisor. Similarly, Lamonica is distinguishable because it involved purported employers who were
substantially involved in daily operations, personally visiting work sites; issuing instructions to
employees; and not only directly determining employee pay (or lack thereof), but even taking out a loan
in their individual capacity and personally paying employees when the defendant corporation itself
became unable to do so. (See Johnson’s Reply 5–6 (discussing Lamonica, 711 F.3d at 1313–14)). These
indicia of operational control are completely absent from this case.
5
CASE NO. 15-22606-CIV-ALTONAGA/O’Sullivan
As Plaintiffs concede, Lamonica did not overturn any Eleventh Circuit precedent (see Pls.’ Resp.
7), so the test still revolves around whether an individual defendant had sufficient operational or
supervisory control over a plaintiff-employee to be personally liable.
Plaintiffs allege Johnson “ran the day-to-day operations of the Corporate Defendant for
the relevant time period and was responsible for paying Plaintiffs’ wages for the relevant time
period and controlled Plaintiffs’ work and schedule and was therefore Plaintiff’s employer.”
(Am. Compl. ¶ 4). But Plaintiffs’ Response concedes Johnson wholly delegated his operational
authority to Arreaga (see Pls.’ Resp. 9), so it is clear Johnson’s direct involvement in day-to-day
operations is insufficient to trigger personal liability. That is why Plaintiffs now emphasize
Johnson’s indirect control, and pursue their alternate allegation of individual liability: “Johnson
was so involved in the managerial and financial affairs of Defendant Corporation that, [sic] to the
extent that he would be liable under the FLSA for any violations of wage law committed by
Defendant Corporation, even if the Individual Defendant was not found to be the employer of
Plaintiffs.” (Am. Compl. ¶ 5 (capitalization omitted)). Yet that final clause demonstrates
Plaintiffs’ misunderstanding of Lamonica: indirect control, which again is not a new test, does
not establish liability in the absence of an employment relationship.
Rather, it clarifies a
qualifying employment relationship may exist as a result of indirect operational control. See 711
F.3d at 1313.
And on that central issue, Johnson is correct Plaintiffs mischaracterize his
involvement. (See Johnson’s Reply 2–7).
Plaintiffs repeatedly assert Johnson “implements” — in the present tense —
Americlean’s subcontractor business model. (See, e.g., Pls.’ Resp. 9). But even drawing all
inferences in Plaintiffs’ favor, the undisputed evidence shows this implementation occurred
decades ago when Johnson first started Americlean, and control of nearly every facet of daily
6
CASE NO. 15-22606-CIV-ALTONAGA/O’Sullivan
operations has been delegated to Arreaga since his hiring soon after Americlean’s incorporation
in 1996. (See generally Deposition of James Johnson (“Johnson Deposition”) [ECF No. 54-1]).
Nonetheless, Plaintiffs maintain Johnson is personally liable as “the man behind the curtain,”
“the architect of the FLSA violation” (Pls.’ Resp. 9), and the “originator of the business model
which is followed by Mr. Arreaga” (Pls.’ SMF Resp. ¶ 10). Plaintiffs’ heavy focus on liability
deriving from the contractor business model itself, while understandably appealing for its
precedential value based on the model’s ubiquity in the local cleaning industry, is unavailing.
Framed this way, the argument fails because the purported FLSA violation does not inherently
flow from the contractor business model; obviously it is possible to pay a contractor minimum
wage.3
Nevertheless, buried within this fallacious argument lies a thin, colorable theory of
individual liability. Johnson states “Mr. Arreaga determines the rates of pay for cleaners based
on his personal experience.” (Declaration of James S. Johnson [ECF No. 50-1] ¶ 6). Plaintiffs
concede “James S. Johnson does not set a particular employee’s pay; however, he sets the
policies and systems which do set the pay.” (Pls.’ SMF Resp. ¶ 11). This latter point, much
narrower than Plaintiffs’ grand “architect” theory based on the overarching business model, is
what could trigger individual liability. If Johnson’s pay policies narrowed Arreaga’s discretion
such as to preclude minimum wage payment, Johnson could be personally liable based on his
For example, if Plaintiffs’ effective wages were above minimum wage, they would have no minimum
wage cause of action regardless of whether Defendants designated and treated them as employees or
contractors. In fact, even Melba’s claim as a conceded Americlean employee will necessarily fail unless
Plaintiffs can prove Raul and Rafaela were Americlean employees too, because while Plaintiffs allege
they “were paid an average of $3.65 per hour” (Am. Compl. ¶ 15), there are three of them. If only Melba
was an Americlean employee, and the other two were not employed by Defendants in any capacity,
Melba’s alleged effective wage (then only voluntarily split three ways) rises to $10.95 per hour — well in
excess of state and federal minimum wage provisions.
3
7
CASE NO. 15-22606-CIV-ALTONAGA/O’Sullivan
indirect control over Plaintiffs’ pay; otherwise, the purported FLSA violations flow not from
Johnson’s policies, but rather Arreaga’s discretionary implementation.
The Court cannot rule out that possibility at this time. Johnson’s deposition testimony
suggests while Arreaga has discretion to determine individual cleaners’ payments, his discretion
may fall within limits prescribed by Johnson himself. (See, e.g., Johnson Dep. 21:8 (“Patrick
knows how much I offer.”)). Both these limits, and the critical issue of whether a per-squarefoot rate within those limits could translate to an effective wage above minimum wage, are
unclear from the record.4 To prevail in the argument Johnson is individually liable based on his
indirect operational control over Plaintiffs’ compensation, Plaintiffs ultimately will have to show
Johnson’s policies limited Arreaga’s discretion so as to preclude him from paying Plaintiffs a
legal minimum wage. Given the state of the record on this issue, drawing all inferences in
Plaintiffs’ favor as the non-moving party, summary judgment is inappropriate.
IV. CONCLUSION
Based on the foregoing, it is
ORDERED AND ADJUDGED as follows:
1. Plaintiffs’ Motion [ECF No. 51] is GRANTED in part and DENIED in part.
2. Johnson’s Motion [ECF No. 50] is DENIED.
DONE AND ORDERED in Miami, Florida, this 25th day of February, 2016.
_________________________________
CECILIA M. ALTONAGA
UNITED STATES DISTRICT JUDGE
cc:
counsel of record
4
A typographical error in the transcript prevents the Court from knowing exactly what the permitted persquare-foot rate range may be. (See Johnson Dep. 21:14). Regardless, the Court would not be able to
calculate an effective wage rate even with that information because the Court does not know how many
square feet Plaintiffs were tasked with cleaning, or how long it generally takes to clean a square foot.
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?