Bourhis v. MY TRADE LLC et al
ORDER denying 66 Motion for Summary Judgment. Signed by Chief Judge K. Michael Moore on 4/14/2016. (dkn)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 1:15-cv-22674-KMM
MY TRADE LLC; MOHAMED
HADJ-MERABET; and SEBBAH Y.
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This cause is before the Court on Defendants My Trade LLC, Mohamed Hadj-Merabet
and Sebbah Y. Hadj-Merabet’s Motion for Summary Judgment (ECF No. 66). Plaintiff Julien
Bourhis filed a Response (ECF No. 71) and Defendants filed a Reply (ECF No. 73). For the
reasons that follow, Defendants’ Motion for Summary Judgment is denied.
The Court notes that Plaintiff’s Response to Defendants’ Statement of Undisputed Facts (ECF
No. 72) contains forty-seven numbered facts, none of which correspond to the order and
numbering scheme used by Defendants in their Statement of Material Facts (ECF No. 60).
Plaintiff’s Response thus fails to comply with Local Rule 56.1(a). Though Plaintiff’s
delinquency presents the Court with “the functional analog of an unopposed motion for summary
judgment,” Reese v. Herbert, 527 F.3d 1253, 1268 (11th Cir. 2008), the “[C]ourt must still
review the movant’s citations to the record to determine if there is, indeed, no genuine dispute of
material fact.” Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1303 (11th Cir. 2009); see also State
Farm Mut. Auto. Ins. Co. v. B&A Diagnostic, Inc., No. 14-CV-24387-KMM, 2015 WL 7272738,
at *1 (S.D. Fla. Nov. 16, 2015).
Defendant My Trade LLC (“My Trade”) is in the business of patio furniture sales.
Individual Defendants Mohamed Hadj-Merabet and Sebbah Y. Hadj-Merabet are officers and
owners of My Trade. See Def.’s Statement of Material Facts (“Def.’s Facts”), Ex. A (ECF No.
In May 2014, My Trade hired Plaintiff to perform web design and search engine
optimization. See id. at Ex. F (ECF No. 65-6). Plaintiff owned two companies, Need-Sitter,
LLC and Royal Team Prod when he was hired to work at My Trade. See id. at Ex. J (ECF No.
65-12). My Trade paid Plaintiff an hourly wage, which increased after approximately one
month. See id. After some time, Plaintiff assumed the additional responsibility of selling
furniture for My Trade and received a commission for each sale he made. See id. Every two
weeks, Plaintiff submitted invoices to Defendants for the hours he worked and the sales he made.
See id. at Ex. K (ECF No. 65-11). My Trade reported Plaintiff’s income as a non-employee
through an IRS Form 1099. See id. at Ex. A (ECF No. 65-1). In July 2015, Plaintiff stopped
working for My Trade. See id. at Ex. K (ECF No. 65-11).
On July 16, 2015, Plaintiff filed a four count Complaint against Defendants. Counts I, II
and III allege violations of the Fair Labor Standards Act (“FLSA” or the “Act”), 29 U.S.C. § 201
et seq., and seek unpaid wages, overtime compensation and damages. See Pl.’s Compl. (ECF
No. 1). Plaintiff brings Count IV pursuant to the Florida Whistleblower Act (“FWA”), Fla. Stat.
§ 448.101 et seq., seeking injunctive relief and damages in connection with his alleged wrongful
termination and Defendants’ alleged violation of the Occupational Safety and Health Act, 29
U.S.C. § 654. Id. Defendants now move for summary judgment on all counts.
STANDARD OF REVIEW
Under Fed. R. Civ. P. 56 summary judgment is appropriate only if “the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.” The material facts are determined by the substantive
law applicable to the case, and a genuine issue exists as to those facts when “a reasonable jury
could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
The moving party has the initial burden of showing an absence of a genuine issue as to
any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In deciding whether
the movant has met this burden, the court must “resolve all reasonable doubts about the facts in
favor of the non-movant, and draw all justifiable inferences in [the non-movant’s] favor.”
United States v. Four Parcels of Real Prop., 941 F.2d 1428, 1437 (11th Cir. 1991) (en banc)
(internal quotation marks and citations omitted). If the movant “fails to discharge the initial
burden,” the court “need not consider what, if any, showing the non-movant has made” and must
deny the motion. Id. If, however, the moving party carries its initial burden, responsibility shifts
to the non-moving party to “show the existence of a genuine issue as to the material fact.”
Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116 (11th Cir. 1993) (citations omitted). “If
reasonable minds could differ on any inferences arising from undisputed facts, summary
judgment should be denied.” Twiss v. Kury, 25 F.3d 1551, 1555 (11th Cir. 1994).
Defendants move for summary judgment as to Counts I, II and III, arguing that Plaintiff
was not a covered “employee” under the FLSA. Defendants also move for summary judgment
as to Count IV, arguing: (1) Defendants are not employers as defined by the FWA; and (2)
Plaintiff has failed to make out a prima facie case of retaliation under the FWA. After careful
review of the sparse record, the Court concludes that genuine issues of material fact remain.
Fact Issues Remain As To Whether Plaintiff Was An Employee Or An
The protections of the FLSA extend only to employees. Freund v. Hi-Tech Satellite, Inc.,
185 F. App’x 782, 782 (11th Cir. 2006). The Act defines an employee as “any individual
employed by an employer” and to employ as to suffer or permit to work.
29 U.S.C. §§
203(e)(1), 203(g). These definitions are intended to be “comprehensive enough” to include
“working relationships, which prior to [the] Act, were not deemed to fall within an employeremployee category.” Rutherford Food Corp. v. McComb, 331 U.S. 722, 729 (1946) (quotation
marks and citations omitted). Nevertheless it is clear––and the parties do not dispute––that
independent contractors do not fall within the ambit of the Act. See id. at 728–29.
To aid in the determination of whether an individual falls into the category of covered
“employee” or exempted “independent contractor,” courts must “look to the ‘economic reality’
of the relationship between the alleged employee and whether that relationship demonstrates
dependence.” Scantland v. Jeffry Knight, Inc., 721 F.3d 1308, 1311 (11th Cir. 2013) (collecting
cases). Importantly, “[t]his inquiry is not governed by the ‘label’ put on the relationship by the
parties or the contract controlling that relationship.” Id. (quoting Rutherford Food, 331 U.S. at
729). Rather, it focuses on whether “the work done, in its essence, follows the usual path of an
employee.” Id. (quoting Rutherford Food, 331 U.S. at 729) (quotation marks omitted).
The Eleventh Circuit has adopted several factors to guide the “economic reality” inquiry:
(1) the nature and degree of the alleged employer’s control as to the manner in
which the work is to be performed;
(2) the alleged employee’s opportunity for profit or loss depending on his
(3) the alleged employee’s investment in equipment or materials required for his
task, or his employment of workers;
(4) whether the services rendered requires a special skill;
(5) the degree of permanency and duration of the working relationship;
(6) the extent to which the service rendered is an integral part of the alleged
Id. at 1312.
While these factors are instructive, the “overarching focus of the inquiry is
economic dependence.” Id. The key question is “whether an individual is ‘in business for
himself’ or is ‘dependent upon finding employment in the business of others.’” Id. (quoting
Mednick v. Albert Enters., Inc., 508 F.2d 297, 301–02 (5th Cir. 1975)).
Though Defendants do not address each factor individually, the Court has applied the
economic realities test to the record in this case, and cannot say as a matter of law, that Plaintiff
worked as an independent contractor.
As to the first factor––the nature and degree of
Defendants’ control over the manner in which Plaintiff performed his work––the only evidence
the Court finds relevant is Defendants’ statement that Plaintiff did not have to work a set
schedule. See Def’s Facts, Ex. K (ECF No. 65-11). Plaintiff denies this fact, however, and states
that Defendants required that he work during the store’s operating hours, and forbade him from
working remotely. See Pl.’s Statement of Material Facts (“Pl.’s Facts), Ex. A (ECF No. 72-1).
As to the second factor––Plaintiff’s opportunity for profit or loss depending on his
managerial skill––the record shows that Defendants, not Plaintiff determined Plaintiff’s hourly
wage and commission. See Def.’s Facts, Ex. K (ECF No. 65-11); Pl.’s Facts, Ex. A (ECF No.
As to the third factor, Defendants do not address whether Plaintiff purchased materials
for his work at My Trade, or employed his own workers. Plaintiff, however, states that he made
no capital investments for his work at My Trade, and that all materials and equipment he used
were provided by Defendants. See Pl.’s Facts, Ex. A (ECF No. 72-1).
As to the fourth factor, the parties agree that Plaintiff was hired for web design and
search engine optimization. See Def.’s Facts, Ex. K (ECF No. 65-11). The record does not show
whether this work required any special skill.
As to the fifth factor, the record also does not show whether Plaintiff was hired for an
indefinite duration. Further, the parties offer conflicting accounts of why Plaintiff stopped
working for My Trade in July 2015. Defendants state that Plaintiff voluntarily ceased working
for My Trade, while Plaintiff maintains that he was fired. See Def.’s Facts, Ex. K (ECF No. 6511); Pl.’s Facts, Ex. A (ECF No. 72-1).
Defendants do not address the sixth factor––whether the service Plaintiff rendered was an
integral part of My Trade’s business––but Plaintiff states, in his affidavit, that his search engine
optimization and web design work helped Defendants’ business. Pl.’s Facts, Ex. A (ECF No. 721).
In sum, fundamental factual disputes concerning factors one and five, as well as a lack of
record evidence as to the other factors, warrant a denial of Defendants’ Motion for Summary
Judgment. The Court cannot say based on the record whether Plaintiff was in business for
himself or was economically dependent on Defendants. Thus the core question of economic
dependency is still genuinely at issue. Far from exhibiting an absence of factual dispute, this
case requires the Court to assess the credibility of the parties’ affidavits and resolve competing
facts. Such a case is not appropriate for summary judgment. See Anderson, 477 U.S. at 249
(“[A]t the summary judgment stage, the [Court’s] function is not [ ] to weigh the evidence and
determine the truth of the matter but to determine whether there is a genuine issue for trial.”).
Fact Issues Also Remain As To Plaintiffs’ Claim Under The FWA
The FWA “prohibits employers from retaliating against an employee because the
employee objected to the employer’s prohibited activity, policy, or practice.” Castillo v. Roche
Laboratories, Inc., 467 F. App’x 859, 862 (11th Cir. 2012); see also Fla. Stat. § 448.102(3). The
FWA is “remedial in nature and should be construed liberally in favor of granting access to the
remedy . . . .” Charlton v. Republic Servs. of Florida, L.P, No. 09-22506-CIV, 2010 WL
2232677, at *3 (S.D. Fla. June 2, 2010).
When considering a claim of retaliatory discharge under the FWA, courts in this Circuit
apply the summary judgment analysis for a Title VII retaliation claim. Rutledge v. SunTrust
Bank, 262 F. App’x 956, 958 (11th Cir. 2008). In the Title VII context, “the plaintiff bears the
initial burden of presenting sufficient evidence to allow a reasonable jury to determine that he
has satisfied the elements of his prima facie case.” Id. (citing McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973)). If Plaintiff can do so, “the burden shifts to the defendant to
articulate a legitimate reason for the employment action.” Id. (citing McDonnell Douglas, 411
U.S. at 802). Finally, “[i]f articulated, the plaintiff must show that the defendant’s reason was
not pretextual.” Id. (citing McDonnell Douglas, 411 U.S. at 802–03).
Defendants make two arguments for summary judgment as to Count IV.
Defendants contend that My Trade is not an employer as defined by the FWA.
Defendants argue that Plaintiff cannot establish a prima facie case of retaliatory discharge.
i. Whether Defendant Was An Employer As Defined By The FWA
The FWA defines employer as a private person or entity that employs ten or more
persons. Fla. Stat. § 448.101(3). Here, the parties dispute how many individuals were employed
by My Trade while Plaintiff worked there. See Def.’s Facts, Ex. K (ECF No. 65-11); Pl.’s Facts,
Ex. A (ECF No. 72-1). Accordingly, a genuine issue of material fact remains as to whether My
Trade was an employer as defined by the FWA.
ii. Whether Plaintiff Can Make Out A Prima Facie Case Under the FWA
In order to state a prima facie case of retaliatory discharge under the FWA, a plaintiff
must show: “(1) [he] engaged in statutorily protected expression, (2) [he] suffered a materially
adverse action of a type that would dissuade a reasonable employee from engaging in statutorily
protected activity, and (3) there was some causal relation between the events.” Rutledge, 262 F.
App’x 956 at 958 (citations omitted). Defendants argue that Plaintiff cannot establish the first
and second elements.
First, Defendants state that Plaintiff never complained about the working conditions at
My Trade. See Def.’s Facts, Ex. K (ECF No. 65-11). Plaintiff, however, disputes this point,
stating in his affidavit that he complained about rats in the store on numerous occasions. See
Pl.’s Facts, Ex. A (ECF No. 72-1). Second, Defendants contend that Plaintiff quit his job and
therefore suffered no adverse employment action. See Def.’s Facts, Ex. K (ECF No. 65-11).
But, as already discussed, Plaintiff maintains that he was fired. See Pl.’s Facts, Ex. A (ECF No.
72-1). Given the sparse record in this case, and because material factual issues remain in
dispute, summary judgment is not appropriate. Accordingly, the Court denies Defendants’
motion as to Count IV of the Complaint.
For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that Defendants’
Motion for Summary Judgment is DENIED.
It is further ORDERED AND ADJUDGED that the Final Pretrial Conference set for
Monday, April 18, 2016 is CANCELLED. The Court will address any pretrial issues at Calendar
Call on Thursday, April 28, 2016.
Done and ordered in Chambers at Miami, Florida, this ____ day of April, 2016.
K. MICHAEL MOORE
CHIEF UNITED STATES DISTRICT JUDGE
Counsel of record
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