GODBURN v. ADAMS TILE & TERRAZZO INC
ORDER granting in part and denying in part 41 Motion for Partial Summary Judgment; denying 43 Motion for Summary Judgment. Ordered by US DISTRICT JUDGE C ASHLEY ROYAL on 3/31/17 (lap)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
SPENCER GODBURN, on behalf of
himself and all others similarly
No. 3:14‐CV‐114 (CAR)
ADAMS TILE & TERRAZZO, INC., a :
Georgia Corporation; RUEBEN
ADAMS; an individual, and SCOTT :
ADAMS, an individual,
ORDER ON MOTIONS FOR SUMMARY JUDGMENT
Plaintiff Spencer Godburn and opt‐in Plaintiffs Jorge Salinas and Leonardo
Garcia bring this action asserting violations of the Fair Labor Standards Act (“FLSA”),
29 U.S.C. § 201, et seq., and seeking unpaid overtime compensation from Defendants
Adams Tile & Terrazzo, Rueben Adams, and Scott Adams. Before the Court are
Defendants’ Motion for Partial Summary Judgment and Plaintiffs’ Motion for Summary
Judgment. Having read and considered the Motions, the record in this case, the
applicable law, and the parties’ arguments, the Court HEREBY GRANTS IN PART and
DENIES IN PART Defendants’ Motion for Partial Summary Judgment [Doc. 41] and
DENIES Plaintiffs’ Motion for Summary Judgment [Doc. 43]. Specifically, the Court
finds Rueben Adams and Scott Adams cannot be held individually liable, and the Court
cannot grant judgment as a matter of law to either party on Plaintiffs’ claims for
overtime compensation and willfulness.
Summary judgment is proper if the movant “shows that there is no genuine
issue as to any material fact and the movant is entitled to a judgment as a matter of
law.”1 Not all factual disputes render summary judgment inappropriate; only a
genuine issue of material fact will defeat a properly supported motion for summary
judgment.2 This means that summary judgment may be granted if there is insufficient
evidence for a reasonable jury to return a verdict for the nonmoving party or, in other
words, if reasonable minds could not differ as to the verdict.3
On summary judgment, the Court must view the evidence and all justifiable
inferences in the light most favorable to the nonmoving party; the Court may not
make credibility determinations or weigh the evidence.4 The moving party “always
bears the initial responsibility of informing the court of the basis for its motion, and
identifying those portions of the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, which it believes
demonstrate the absence of a genuine issue of material fact” and that entitle it to a
Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247‐48 (1986).
3 See id. at 249‐52.
4 See id. at 254‐55; Welch v. Celotex Corp., 951 F.2d 1235, 1237 (11th Cir. 1992).
judgment as a matter of law.5 If the moving party discharges this burden, the burden
then shifts to the nonmoving party to respond by setting forth specific evidence in the
record and articulating the precise manner in which that evidence creates a genuine
issue of material fact or that the moving party is not entitled to a judgment as a matter
of law.6 This evidence must consist of more than mere conclusory allegations or legal
The standard of review for cross‐motions for summary judgment does not differ
from the standard applied when only one party files a motion.8 “Cross‐motions for
summary judgment will not, in themselves, warrant the court in granting summary
judgment unless one of the parties is entitled to judgment as a matter of law on facts
that are not genuinely disputed.”9 The Court will consider each motion on its own
merits, resolving all reasonable inferences against the party whose motion is under
In this suit for overtime compensation, both Plaintiffs and Defendants have filed
motions for summary judgment. Plaintiffs seek summary judgment on all of their
claims, contending (1) the evidence establishes they worked more than 40 hours per
Celotex, 477 U.S. at 323 (internal quotation marks omitted).
See Fed. R. Civ. P. 56(e); see also Celotex, 477 U.S. at 324‐26.
7 Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991).
8 See Am. Bankers Ins. Grp. v. United States, 408 F.3d 1328, 1331 (11th Cir. 2005).
9 United States v. Oakley, 744 F.2d 1553, 1555 (11th Cir. 1984) (internal quotation marks and citation
10 See Am. Bankers Ins. Grp., 408 F.3d at 1331.
week, but Defendants did not pay them overtime in compliance with the FLSA; (2)
Defendants’ violation was willful; and (3) Defendants Rueben Adams and Scott
Adams11 are individually liable as employers under the FLSA. Defendants seek
summary judgment on two grounds: (1) Defendants Rueben and Scott are not
employers under the FLSA, and therefore must be dismissed; and (2) insufficient
evidence exists to establish a genuine issue of material fact as to whether they willfully
violated the FLSA. The pertinent background is as follows.
Defendant Adams Tile & Terrazzo (“the Company”) is a small family business
that installs commercial flooring. Defendants Rueben and Scott are brothers, and each
owns 50 percent of the Company.12 They serve as the Company’s only corporate
officers.13 The Company’s labor force is divided into three distinct crews: (1) the
pouring crew, which pours terrazzo flooring; (2) the grinding crew, which grinds and
polishes the floor; and (3) the “punch‐out” crew, which fixes any remaining problems.14
A different supervisor manages each crew.15
Rueben and Scott have different duties in the Company. Rueben serves as the
Company’s Chief Executive Officer, and his duties are corporate in nature, as they
involve bidding for projects, negotiating prices, and scheduling the crews’ work
For purposes of convenience, the Court will hereafter refer to Rueben Adams and Scott Adams as
Rueben and Scott, respectively.
12 Rueben declaration [Doc. 41‐3, p. 2].
13 Rueben 30(b)(6) Depo., p. 3 [Doc. 41‐5, pp. 9‐10].
14 Jones Depo. [Doc. 41‐8, pp. 10‐12].
15 Rueben declaration [Doc. 41‐3, p. 3].
assignments.16 He does not oversee the crews’ on‐site work activities, and no evidence
indicates he maintains employment records.17 Although Rueben approves all firings, he
“normally” does not interview or hire crewmembers; the crew leaders do.18 Indeed,
Rueben did not interview, hire, or fire Plaintiffs.19 Although Rueben “informally”
approves pay raises proposed by the crew leaders, he does not set pay rates, and no
evidence indicates he determines crewmembers’ overtime compensation.20 When an
employee disputes the amount of a paycheck, Rueben calls the crew leader, who
resolves the discrepancy.21
Although Scott also serves as a corporate officer, the record is unclear as to his
title, and no evidence shows he bears responsibility for any corporate duties.22 Scott is
the crew leader of the pouring crew, and his duties appear limited to that position.23
Both Scott and the pouring crew foreman share the authority to hire and fire members
of the pouring crew.24 Scott, however, did not interview, hire, or fire Plaintiffs.25
Rueben 30(b)(6) Depo., pp. 13‐14 [Doc. 41‐5, p. 4].
Rueben declaration [Doc. 41‐3, p. 3‐4] (explaining Rueben did not oversee Plaintiffs’ work activities).
Rueben Depo. [Doc. 41‐6, pp. 7‐9]; Jones Depo. [Doc. 41‐8, pp. 13‐14] (explaining grinding crew leader
“[n]ormally” makes final hiring decisions for his crew).
19 Rueben declaration [Doc. 41‐3, p. 4].
20 Rueben Depo. [Doc. 41‐3, p. 8] (explaining crew leaders “pretty much set the pay rate”); Rueben
declaration [Doc. 41‐3, p. 3‐4] (explaining grinding crew leader had his own overtime compensation
system, and Rueben did not oversee Plaintiffs’ work activities).
21 Rueben 30(b)(6) Depo., p. 18 [Doc. 41‐5, p. 5].
22 Id. at pp. 9‐10 [Doc. 41‐5, pp. 3] (identifying Scott as Chief Financial Officer (“CFO”) and President);
Rueben Depo. [Doc. 41‐6, p. 5] (explaining Scott is Vice President, and there is no CFO); Georgia Secretary
of State Business Information [Doc. 44‐4] (identifying Scott as CFO).
Scott Depo., p. 12 [Doc. 41‐7, p. 4].
Id. at p. 12‐13 [Doc. 41‐7, p. 4].
25 Scott declaration [Doc. 41‐4, p. 4].
Although Scott is “always on the job” while the crew works, the pouring crew foreman
ordinarily manages the day‐to‐day operations of the crew; Scott only “sometimes” does
so.26 Both Scott and the foreman share the authority to set wages for members of the
pouring crew.27 Typically, however, the foreman keeps track of crewmembers’ hours
worked, and Scott only does so on the rare occasions the foreman is unavailable. 28 On
those “rare” occasions, Scott submits the crewmembers’ hours to the office manager.29
No evidence indicates Scott determines his crewmembers’ overtime compensation.
Plaintiffs are laborers who worked for the Company and were paid on an hourly
basis. During the pertinent time period, Plaintiff Godburn worked primarily on the
grinding crew but testified he also worked on Scott’s pouring crew “four or five times”
in “late 2014” or “early 2015.”30 Plaintiffs Garcia and Salinas worked exclusively on the
Defendants paid Plaintiffs two checks each pay period—one check for their
regular hours and another for overtime hours worked.32 The parties, however, dispute
the amount of Plaintiffs’ overtime compensation. Plaintiffs contend Defendants only
paid them their regular hourly rate for each overtime hour worked, instead of one and
Scott Depo., pp. 7‐8, 12 [Doc. 41‐7, pp. 3‐4].
Id. at pp. 12‐13 [Doc. 41‐7, p. 4].
28 Id. at pp. 14‐15 [Doc. 41‐7, p. 5].
29 Id. at pp. 15‐18 [Doc. 41‐7, pp. 5‐6].
30 Godburn Depo., pp. 11‐12 [Doc. 41‐9, pp. 12‐13].
31 Plaintiff Garcia worked for the Company from 2010 through approximately September 2014. Garcia
Depo., p. 7 [Doc. 41‐11, p. 8]. Plaintiff Salinas worked for the Company from 2012 through approximately
September 2014. Salinas Depo., p. 11 [Doc. 41‐10, p. 12].
32 Rueben Depo. [Doc. 41‐6, pp. 13‐14]; Jones Depo. [Doc. 41‐8, p. 30].
one‐half times their hourly rate as required under the FLSA. As evidence, Plaintiffs
submit three charts summarizing their hours worked, pay stubs, and overtime
calculations.33 Defendants, however, contend they paid Plaintiffs double their regular
rate for each overtime hour worked and therefore did not violate the FLSA.34 No
checks, pay stubs, or overtime calculations are in the record.
On December 10, 2014, Plaintiff Godburn filed this action seeking unpaid
overtime compensation on behalf of himself and those similarly situated. Plaintiffs
Garcia and Salinas then opted into the suit. The parties’ cross motions for summary
judgment are now ripe for ruling.
The Court will first address Rueben and Scott’s individual liability, and then turn
to Plaintiffs’ claims for overtime compensation and willfulness.
Defendants contend Rueben and Scott must be dismissed because they are not
“employers” under the FLSA. The FLSA creates a private right of action against an
“employer” who violates the overtime provisions set forth in 29 U.S.C. § 207.35 An
employer is “any person acting directly or indirectly in the interest of an employer in
[Docs. 43‐1, 43‐2, 43‐3].
Jones Depo. [Doc. 41‐8, pp. 20‐24].
35 29 U.S.C. § 216(b).
relation to an employee.”36 Thus, “a corporate officer with operational control of a
corporation’s covered enterprise is an employer along with the corporation, jointly and
severally liable under the FLSA for unpaid wages.”37
To be personally liable, a corporate officer “must either be involved in the day‐
to‐day operation or have some direct responsibility for the supervision of the
employee.”38 To determine whether an officer meets this standard, courts consider the
“economic reality” of the relationship between the parties, including “whether the
alleged employer (1) had the power 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.”39 No single
factor is dispositive.40 “Relevant control for purposes of individual liability is control in
relation to the employee‐Plaintiff.”41 A jury, however, “may infer such control from the
exercise of general supervisory powers or the exercise of control over other
Alvarez Perez v. Sanford‐Orlando Kennel Club, Inc., 515 F.3d 1150, 1160 (11th Cir. 2008) (internal
quotations omitted). See also 29 U.S.C. § 203(d).
37 Patel v. Wargo, 803 F.2d 632, 637‐38 (11th Cir. 1986).
38 Patel, 803 F.2d at 638.
39 Villarreal v. Woodham, 113 F.3d 202, 205 (11th Cir. 1997). In an unpublished decision, the Eleventh
Circuit questioned without deciding whether these factors apply “in the context of determining whether
a corporate officer is an employer.” Olivas v. A Little Havana Check Cash, Inc., 324 F. App’x 839, 846 n. 6
(11th Cir. 2009) (internal quotations omitted).
40 Mendoza v. Discount C.V. Joint Rack & Pinion Rebuilding, Inc., 101 F.Supp.3d 1282, 1290 (S.D. Fla. 2015).
41 Lamonica v. Safe Hurricane Shutters, Inc., 711 F.3d 1299, 1313‐14 (11th Cir. 2013).
The Court is unpersuaded by Plaintiffs’ contention that Rueben and Scott are
employers because they are corporate officers. “[A] supervisor’s title does not in itself
establish or preclude . . . liability under the FLSA.”43 The fact Rueben and Scott “each
owned a substantial percentage of the corporation suggests that they had control over
its financial affairs and supports a finding of personal liability.”44 Here, however,
analyzing the evidence using the economic reality factors identified above, neither
Rueben nor Scott exercised the necessary control to impose individual liability.
“[U]nexercised authority is insufficient to establish liability as an employer.”45
As to Rueben, he did not supervise Plaintiffs, and he was not sufficiently
involved in the Company’s day‐to‐day operations to be held liable as an employer.
First, although he approves all firing decisions, he “normally” does not interview
prospective employees or make hiring decisions, and he did not interview, hire, or fire
Plaintiffs.46 Second, although he schedules work assignments for the crews, no evidence
reflects he oversees the crews’ on‐site work activities, issues instructions to
crewmembers, or maintains employment records.47 Most importantly, he does not set
pay rates, and no evidence indicates he determines employees’ overtime
Id. at 1310 (noting “usual corporate roles are not always observed”).
Id. at 1313.
45 Alvarez Perez, 515 F.3d at 1161 (citing Patel, 803 F.2d at 638).
46 Rueben declaration [Doc. 41‐3, p. 4]; Rueben Depo. [Doc. 41‐6, pp. 7‐8]; Jones Depo. [Doc. 41‐8, pp. 13‐
14]. Cf. Patel, 803 F.2d at 638 (affirming district court’s conclusion defendant was not an employer despite
firing plaintiff because defendant did not direct day‐to‐day operations or set compensation).
47 Rueben 30(b)(6) Depo., pp. 13‐14 [Doc. 41‐5, p. 4]; Rueben Depo. [Doc. 41‐6, p. 5, 15]; Rueben
declaration [Doc. 41‐3, pp. 3‐4]. Cf. Lamonica, 711 F.3d at 1314 (holding jury had sufficient basis to find
defendants individually liable where defendants routinely issued instructions and inspected job site).
compensation.48 Rueben’s involvement in compensating crewmembers is limited to
“informally” approving proposed pay raises and calling crew leaders to resolve
paycheck discrepancies.49 The Court’s “primary concern is the supervisor’s role in
causing the FLSA violation.”50 Because the record contains no evidence Rueben has any
involvement in determining employees’ overtime compensation, he played no role in
causing Plaintiffs’ alleged FLSA overtime violations. Thus, the Court finds as a matter
of law he cannot be held individually liable under the FLSA as Plaintiffs’ employer.
Likewise, Scott cannot be held liable as an employer. Scott neither bears any
responsibility for corporate duties nor exercises sufficient control in relation to the
employee‐Plaintiffs.51 Because Plaintiffs Garcia and Salinas did not work on the
pouring crew, Scott exercised no control over them.52 Although Plaintiff Godburn
testified he worked on Scott’s pouring crew “four or five times,” Scott’s control in
relation to Plaintiff Godburn was neither “substantial [nor] related to the company’s
FLSA obligations.”53 While Scott had authority to hire and fire crewmembers, he did
Rueben Depo. [Doc. 41‐6, p. 8] (explaining crew supervisors have autonomy to set pay rates); Jones
Depo. [Doc. 41‐8, pp. 22‐24] (explaining grinding crew leader determined his crewmembers’ overtime
compensation based on his own formula). Cf. Lamonica, 711 F.3d at 1314 (holding jury had sufficient basis
to find defendants individually liable where defendants personally promised to pay employees and used
personal funds to do so).
49 Rueben Depo. [Doc. 41‐6, p. 8‐9].
50 Lamonica, 711 F.3d at 1313‐14. See also Baystate Alternative Staffing, Inc. v. Herman, 163 F.3d 668, 678 (1st
Cir. 1998) (explaining the “economic reality analysis focus[es] on the role played by the corporate officers
in causing the corporation to undercompensate employees”).
51 Scott Depo., p. 12 [Doc. 41‐7, p. 4].
Salinas Depo., p. 11 [Doc. 41‐10, p. 12]; Garcia Depo., p. 7 [Doc. 41‐11, p. 8].
53 Lamonica, 711 F.3d at 1314.
not interview, hire, or fire Plaintiff Godburn.54 Although Scott “sometimes” supervised
the pouring crew and on “rare” occasions kept records of crewmembers’ hours worked,
no evidence indicates he supervised or kept records when Plaintiff Godburn worked on
the pouring crew or determined Plaintiff Godburn’s wages.55 Likewise, the record
contains no evidence Scott determined any crewmembers’ overtime compensation.
Accordingly, the Court finds as a matter of law Scott cannot be held individually liable
as an employer in this case.
Although Plaintiffs seek summary judgment on their claim for overtime
compensation, they present no admissible evidence substantiating their claim. The
documents underlying the three charts Plaintiffs proffer summarizing their hours
worked, pay stubs, and overtime damages calculations are not in the record.56 Absent
evidentiary support, the Court cannot consider these charts on summary judgment.57
Accordingly, the Court DENIES Plaintiffs’ Motion on overtime compensation. Thus,
the Court also DENIES Plaintiffs’ Motion as to liquidated damages and attorney’s fees.
Scott declaration [Doc. 41‐4, p. 4] (explaining he did not hire or fire Plaintiffs).
Scott Depo., pp. 7‐8, 13‐15 [Doc. 41‐7, pp. 3‐5].
56 [Docs. 43‐1, 43‐2, 43‐3].
57 Guijosa‐Silva v. Wendell Roberson Farms, Inc., No: 7:10‐CV‐17 HL, 2012 WL 860394, at *4 (M.D. Ga. Mar.
13, 2012) (explaining “[w]ithout evidentiary support, the Court cannot allow a summary to be admitted
under FRE 1006”). Although some of Plaintiffs’ pay stubs were identified as exhibits in the parties’
depositions, the parties did not file these exhibits with the Court. Moreover, these exhibits only included
pay stubs from 2014 and thus would be insufficient to establish Plaintiffs’ damages. See [Doc 41‐5, p. 19]
(identifying Exhibit 2 as pay stubs from 2014); [Doc. 41‐5, pp. 25‐28].
Finally, both parties seek summary judgment on the Company’s alleged willful
violation of the FLSA. Ordinarily, when a defendant violates the FLSA, a plaintiff may
recover wages worked for two years. However, when the defendant willfully violates
the FLSA, the plaintiff may recover wages worked for three years.58 To establish a
willful violation, the plaintiff must prove “his employer either knew that its conduct
was prohibited by the statute or showed reckless disregard about whether it was.”59
If the jury finds the Company failed to pay Plaintiffs overtime, sufficient
evidence exists to support a finding such violation of the FLSA was willful. The
Company paid Plaintiffs two checks each pay period—one check for hours under forty
and another for overtime hours worked.60 Separate checks for the same pay period
supports a finding the Company either knew its conduct was prohibited or showed
reckless disregard about whether it was.61 Accordingly, the Court DENIES both
parties’ Motions as to the Company’s alleged willful violation.
For the reasons set forth above, the Court HEREBY GRANTS IN PART and
DENIES IN PART Defendants’ Motion for Partial Summary Judgment [Doc. 41] and
Allen v. Bd. of Public Educ. for Bibb Cnty, 495 F.3d 1306, 1323‐24 (11th Cir. 2007) (citing 29 U.S.C. § 255(a)).
Alvarez Perez, 515 F.3d at 1162‐63 (citing McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988)).
60 Rueben Depo. [Doc. 41‐6, pp. 13‐14]; Jones Depo. [Doc. 41‐8, p. 30].
61 See Ochoa v. Alie Bros, Inc., No. 6:06‐cv‐609‐Orl‐DAB, 2007 WL 2781192, at *7 (M.D. Fla. Sept. 19, 2007)
(explaining “Defendants’ willful violation of the FLSA is supported by Defendants’ use of separate time
card reports and two sets of checks for the same pay periods”).
DENIES Plaintiffs’ Motion for Summary Judgment [Doc. 43]. Specifically, the Court
GRANTS Defendants’ Motion and DENIES Plaintiffs’ Motion as to Rueben and Scott
Adams, finding they cannot be held individually liable; DENIES both parties’ Motions
as to willfulness; and DENIES Plaintiffs’ Motion as to overtime compensation,
liquidated damages, and attorney’s fees.
SO ORDERED, this 31st day of March, 2017.
S/ C. Ashley Royal
C. ASHLEY ROYAL, SENIOR JUDGE
UNITED STATES DISTRICT COURT
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