Lyles v. Burt's Butcher Shoppe and Eatery Inc et al

Filing 33

ORDER denying Defendants' Motion for Judgment as a Matter of Law; finding as moot 19 Motion in Limine; finding as moot 25 Motion to Amend/Correct. Ordered by Judge Clay D. Land on 10/17/2011 (ajp)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
JARVIS LYLES,

*

Plaintiff,

*

vs.

*
CASE NO. 4:10-CV-53 (CDL)

BURT‟S
BUTCHER
SHOPPE
and *
EATERY INC., and BURTON STACEY,
JR.,
*
Defendants.

*
O R D E R

This

is

a

wage

and

hour

case

brought

by

Jarvis

Lyles

against his former employer, Burt‟s Butcher Shoppe and Eatery,
Inc., (hereinafter “Burt‟s Butcher Shoppe”) and Burton Stacey,
Jr., (hereinafter “Mr. Stacey”).
14, 2010. Compl., ECF No. 1.

The Complaint was filed on May

Plaintiff sought to recover back

overtime pay, liquidated damages, and his costs of litigation,
including

his

reasonable

attorney‟s

fees.

Defendants

filed

their Answers on June 15, 2010. Defs.‟ Answers, ECF Nos. 4 & 5.
After

discovery,

the

Court

called

the

matter

for

trial.

Plaintiff waived his demand for a jury trial, and the matter was
set for a bench trial that was held on September 13, 2011.
After

considering

the

evidence

Court finds in favor of Plaintiff.
observes

that

genuine

and

material

presented

at

trial,

the

Preliminarily, the Court
factual

disputes

existed

after the presentation of Plaintiff‟s case and at the conclusion
of all of the evidence.
to

judgment

as

a

Therefore, neither party was entitled

matter

of

law,

and

judgment as a matter of law is denied.

Defendants‟

motion

for

The Court makes the

following findings of fact and conclusions of law.
FINDINGS OF FACT
I.

STIPULATED FACTS
The parties stipulated to the following facts.

Pretrial

Order Ex. A, Material Undisputed Facts, ECF No. 22 at 10-11.
1. Burt‟s Butcher Shoppe is a corporation organized under the
laws of the State of Georgia.
2. Burton Stacey, Jr. is the sole shareholder and President of
Burt‟s Butcher Shoppe.
3. From 2007 through 2010, Burt‟s Butcher Shoppe, had two or
more employees “handling, selling, or otherwise working on
goods or materials that have been moved in or produced for
commerce

by

any

person”

as

defined

by

29

U.S.C.

§

203(s)(1)(A)(i).
4. During the time Plaintiff was actively employed at Burt‟s
Butcher Shoppe, Plaintiff was an employee of Burt‟s Butcher
Shoppe, within the meaning of 29 U.S.C. § 203(e).
5. During the time Plaintiff was actively employed at Burt‟s
Butcher Shoppe, Burt‟s Butcher Shoppe was the employer of
Plaintiff within the meaning of 29 U.S.C. § 203(e).

2

6. Defendants never sought or obtained any written or verbal
opinion from the United States Department of Labor or the
Georgia Department of Labor as to how Plaintiff or someone
who performs the same business function as Plaintiff should
be compensated to comply with the Fair Labor Standards Act
(“FLSA” or “the Act”).
7. Defendants never sought or obtained any opinions, including
but not limited to legal advice, as to how Plaintiff or
someone

who

performs

the

same

business

function

as

Plaintiff should be compensated to comply with the FLSA.
8. Plaintiff was employed as a cook and stocker by Defendant
Burt‟s

Butcher

Shoppe

at

2932

Warm

Springs

Road

in

Columbus, Muscogee County, Georgia from approximately June
12, 2005 until February 6, 2010.
9. The

operation

of

Defendant

Burt‟s

Butcher

Shoppe

was

controlled by Burton Stacey, Jr.
10.

At all times material to this action, Defendant Burton

Stacey,

Jr.

acted

directly

or

indirectly

for

Defendant

Burt‟s Butcher Shoppe in relation to Plaintiff.
11.

From May 14, 2007 Defendants paid Plaintiff $7.50 per

hour worked and paid the Plaintiff‟s share of the 7.65%
FICA

contribution

that

Plaintiff

required to pay.

3

would

otherwise

be

II.

Findings of Fact
At trial, the Court heard testimony and received evidence

from Plaintiff Jarvis Lyles; Rayfield Mickles, a former employee
of Defendant Burt‟s Butcher Shoppe; Charles R. Bridgers, one of
Plaintiff‟s counsel; Defendant Burton Stacey, Jr.; and Burton
Stacey, III, a former manager of Burt‟s Butcher Shoppe.

After

considering the evidence presented, the Court finds that the
following

facts

have

been

proven

by

a

preponderance

of

the

evidence:
1. Plaintiff was employed by Burt‟s Butcher Shoppe during the
following relevant time periods:
a. May 14, 2007 through April 19, 2008, and
b. December 20, 2008 through February 6, 2010.
2. Burt‟s

Butcher

Shoppe

is

divided

divisions on the same property.

into

two

separate

There is a butcher shop

and a restaurant.
3. The restaurant is open to customers from 11:00 am until
7:00 pm.
4. The restaurant was closed on Thanksgiving, the day after
Thanksgiving, Christmas, New Year‟s Day and July 4.
5. The restaurant is open five days each week (Tuesday through
Saturday), unless one of the above holidays falls between
Tuesday and Saturday.

If that occurs, the restaurant may

be open on a Sunday or Monday adjoining that work week.
4

6. Defendants

recorded

a

portion

of

Plaintiff‟s

work

time

using a time clock that Plaintiff punched in and out on.
7. The work time that was recorded on the time clock was known
to the parties as “Clock Time.”
8. Defendants

conceded

that

portray

accurate

record

an

“Clock
of

Time”

all

the

records
hours

did

not

worked

by

Plaintiff.
9. To

evade

required
preventing

the

FLSA‟s

Plaintiff
his

Clock

overtime

to

work

Time

requirements,
off

exceeding

the

Defendants

clock,

forty

hours

thereby
in

any

workweek.
10.

Time worked off the clock was known by the parties as

“Paper Time.”
11.

The term Paper Time derived from the fact that time

worked off the clock was recorded each week by Kitchen
Manager Odell Boykins on waitress order sheets.
12.

Defendants routinely instructed Plaintiff to clock in

and out so as to not exceed forty hours of Clock Time in a
workweek.
13.

In 2007, for example, Plaintiff routinely reported to

work and began work at 9:30 each morning.
14.

Plaintiff and the other kitchen workers would work off

the clock, on Paper Time, for the first three to three and
one half hours.

5

15.

Between

12:00

pm

and

1:00

pm,

Boykins

regularly

instructed Rayfield Mickles to clock in all of the hourly
employees.
16.

The employees who Mr. Mickles clocked in had already

been working a number of hours, on Paper Time.
17.

At

other

times,

Defendants

required

that

Plaintiff

clock out after working two hours on a Saturday morning,
thereby limiting his Clock time to under 40 hours, and to
continue working off the clock on Paper Time.
18.

At

other

times,

Defendants

would

require

that

Plaintiff not clock in at all on certain days, and work the
entire day on Paper Time.
19.

It

instruct

was
the

the

policy

and

practice

of

Burt‟s

employees

of

Defendants

Butcher

Shoppe

to
to

manipulate their Clock Time so as to not exceed forty hours
of recorded time in a workweek.
20.

It

was

the

policy

and

practice

of

Defendants

to

instruct the employees of Burt‟s Butcher Shoppe to record
hours worked as Paper Time.
21.

Plaintiff was paid for his Clock Time by check.

22.

Plaintiff was paid for his Paper Time in cash.

23.

Defendants did not maintain all records reflecting the

Paper Time worked by Plaintiff.

6

24.

Defendants failed to retain records of the hours that

Plaintiff was scheduled to work.
25.

Defendants admit and the Court finds that the record

of hours on Defendant‟s time cards (Clock Time) is not
accurate.
26.

The records of the employer do not provide a basis to

determine

the

number

of

hours

Plaintiff

worked

in

any

workweek.
27.

The amount Defendant paid Plaintiff by check depended

on the hours Plaintiff worked on Clock Time, and because
the Plaintiff‟s Clock Time did not accurately reflect the
number

of

hours

Plaintiff

worked,

his

paychecks

do

not

provide an adequate basis to determine the number of hours
he worked in any workweek.
28.

Paper Time frequently began well before the 40-hour

overtime threshold was reached.
29.

Plaintiff might have less than forty hours of Clock

Time in a week and all the rest of the time as Paper Time.
30.
back

Defendant

admitted

overtime,

but

that

it

Defendant

owed
failed

the
to

Plaintiff

some

present

with

reasonable certainty any evidence as to how many overtime
hours Plaintiff worked.

Defendant‟s evidence on this issue

was speculation.

7

31.

The only evidence of Plaintiff‟s complete work time

was the Plaintiff‟s testimony and the testimony of Rayfield
Mickles.
32.

Based

on

this

evidence,

the

Court

find

that

the

Plaintiff worked from 9:30 a.m. to 8:30 p.m. most work
days.
33.

Plaintiff took a non-compensable meal break on some

work days.
34.

Plaintiff was required to clock in and out before each

meal break.
35.

The only evidence of the actual meal breaks taken by

Plaintiff

are

the

Clock

Time

records

submitted

by

Defendants.
36.

The Clock Time records are accurate with respect to

the meal breaks that Plaintiff took.
37.

Plaintiff was paid in cash at the rate of $7.50 per

hour for all Paper Time, regardless of whether the Paper
Time reflected overtime hours.
38.

Prior

to

July

of

2009,

Defendants

failed

to

pay

Plaintiff at time and one half the regular rate for any
overtime recorded as Clock Time.
39.

Defendants never paid Plaintiff at time and one half

times the regular rate for any overtime recorded as Paper
Time.

8

40.

Defendants instituted a new work time recording system

in July of 2009.
41.

Defendants‟ accountant began writing payroll checks in

July of 2009.
42.

After July of 2009, Plaintiff was paid at time and one

half the regular rate for any overtime recorded as Clock
Time.
43.

After

July

of

2009,

Defendants

continued

to

pay

Plaintiff in cash for Paper Time.
44.

Based on the testimony of Plaintiff and Mr. Mickles,

the Plaintiff worked 1,368.1 hours of overtime in the three
years preceding the filing of the Complaint, for which he
did not receive the overtime premium of time and one half.
45.

Defendants paid Plaintiff $7.50 per hour worked and

paid the Plaintiff‟s share of the 7.65% FICA contribution
that Plaintiff would otherwise be required to pay.
46.

Plaintiff‟s regular rate as defined by the FLSA was,

therefore,

the

sum

of

$7.50

and

the

value

of

the

FICA

contribution paid on Plaintiff‟s behalf: $8.07 per hour.
47.
the

The overtime premium that was due the Plaintiff was
difference

between

one

and

one

half

times

$8.07

($12.11) and the $7.50 in cash that he was paid: $4.61.1

1

This number is slightly lower than the overtime premium of $4.67
presented by Plaintiffs at trial.
After the bench trial was

9

48.

The value of 1,368.1 hours of unpaid overtime at an

overtime premium of $4.61 is $6,306.94.
49.

At all times relevant to this matter, Mr. Stacey was

aware

that

the

Fair

Labor

Standards

Act

required

that

Plaintiff be paid at one and one half times the regular
rate for work in excess of forty hours in any work week.
50.
on

At all times relevant to this matter, Mr. Stacey acted
behalf

of

Burt‟s

Butcher

Shoppe

as

to

Plaintiff‟s

compensation.
51.

At all times relevant to this matter, Mr. Stacey had

operational control over Burt‟s Butcher Shoppe including
the

ability

to

hire,

fire,

discipline

and

control

its

employees.
52.
pay

At all relevant times, Mr. Stacey willfully failed to
Plaintiff

overtime

compensation

as

required

by

the

FLSA.
53.

Plaintiff has submitted a detailed accounting of his

attorneys‟ fees and costs of litigation that provides the
following information: The date, the timekeeper, the time
recorded and the activity.
54.

Plaintiff has incurred $49,571.78 in attorney‟s fees.

This amount includes the time detailed in Plaintiff‟s Trial
concluded, Plaintiff‟s counsel advised that their initial calculation
was in error, and that the actual overtime premium was $4.61.
The
calculations in this Order use an overtime premium of $4.61.

10

Exhibit 7 of $34,421.78 for pretrial preparation.

The fees

in Plaintiff‟s Exhibit 7 totaled $35,972.60, but that total
improperly included the costs for the filing fee ($350),
court reporter fees ($1,114.70) and witness fees ($86.12)
as attorney time.

The Court has subtracted these costs

from the amount of attorney time claimed in Plaintiff‟s
Exhibit 7 to reach the $34,421.78 figure.
also

includes

before,

$15,150.00

during,

and

for

after

time

trial.

The $49,571.78

incurred

immediately

Plaintiff‟s

attorneys

spent an additional 12.0 hours for Mr. Bridgers and Mr.
Fitzpatrick the day before trial ($7,200); an additional
8.0 hours for Mr. Bridgers and Mr. Fitzpatrick for the day
of trial (including preparation and travel) ($4,800); and
an additional 7.5 hours ($2,250.00) for Mr. Bridgers and
3.0 hours for Mr. Fitzpatrick ($900) to draft a proposed
order as required by the Court.

Bridgers Decl., ECF No.

32.
55.

Plaintiff‟s counsel has charged this file as follows:

$300 per hour for Mr. Bridgers and Mr. Fitzpatrick; $85 per
hour for Ms. Sorrenti, their paralegal; and $45 per hour
for Ms. Toenes, their legal assistant.
56.

These

rates

have

been

approved

in

at

least

five

different Title VII and FLSA cases in the Northern District
of Georgia.

11

57.
fee

Plaintiff has incurred $1,750.82 in costs for a filing
($350);

($1,114.70);

service
and

fee

witness

($200);
fees

court

reporter

($86.12).

fees

Plaintiff‟s

witness fees include the fee for Charles Cochran, who did
not

testify

and

Plaintiff

did

not

disclose

him

as

a

potential witness until shortly before trial.

The Court

did

him

not

amend

the

pretrial

order

to

include

as

a

potential witness.
DISCUSSION
I.

The Fair Labor Standards Act

The Fair Labor Standards Act provides:
No employer shall employ any of his employees who in
any workweek is engaged in commerce or in the
production of goods for commerce, or is employed in an
enterprise engaged in commerce or in the production of
goods for commerce . . . for a workweek longer than
forty hours . . . unless such employee receives
compensation for his employment in excess of the hours
above specified at a rate not less than one and onehalf times the regular rate at which he is employed.
29 U.S.C. § 207(a)(1) & (2)(C).
Neither an employee nor an employer can effectively waive
or contractually abridge any of the provisions of the Fair Labor
Standards Act.

Lee v. Flightsafety Servs. Corp., 20 F.3d 428,

432 (11th Cir. 1994); Lynn's Food Stores, Inc. v. United States,
679 F.2d 1350, 1352 (11th Cir. 1982).

12

II.

Jurisdiction Under the Act
As set out above, the Parties stipulate that Burt‟s Butcher

Shoppe is subject to the FLSA. The Parties stipulate that during
the time Plaintiff was actively working, he was an “employee”
within the meaning of the Act and that Burt‟s Butcher Shoppe was
an “employer” within the meaning of the Act.

Plaintiff was not

exempt from payment of an overtime premium pursuant to the FLSA.2
III. FLSA Statute of Limitations
29 U.S.C. § 255(a) of the FLSA provides that actions are to
be brought within 2 years after the cause of action “accrued”
except

that

“a

cause

of

action

arising

out

of

a

willful

violation may be commenced within three years after the cause of
action accrued.”

29 U.S.C. § 255(a).3

In a recent case, Morgan

v. Family Dollar Stores, Inc., 551 F.3d 1233, 1283 (11th Cir.
2008), the Eleventh Circuit stated that “„[t]o establish that
the violation of the [FLSA] was willful in order to extend the
limitations period, the employee must prove by a preponderance
2

While the Parties did not formally stipulate that Plaintiff was nonexempt, Defendants have not pled an FLSA exemption and have presented
no evidence or argument that Plaintiff was exempt.
The Court finds
that Plaintiff was not exempt from the overtime requirements of the
FLSA. See Abel v. S. Shuttle Servs., Inc., 631 F.3d 1210, 1212 (11th
Cir. 2011) (per curiam) (“The employer has the burden to show that an
exemption applies”).
3

“In common usage the word „willful‟ is considered synonymous with
such
words
as
„voluntary,‟
„deliberate,‟
and
„intentional.‟”
McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988) (citing
ROGET'S INTERNATIONAL THESAURUS § 622.7, at 479; § 653.9, at 501 (4th
ed. 1977)).

13

of the evidence that his employer either knew that its conduct
was prohibited by the statute or showed reckless disregard about
whether it was.‟” Morgan, 551 F.3d at 1280 (second alternation
in original) (quoting Alvarez Perez v. Sanford-Orlando Kennel
Club, Inc., 515 F.3d 1150, 1162-1163 (11th Cir. 2008)) (internal
quotation marks omitted).

Reckless disregard is defined as the

“failure to make adequate inquiry into whether conduct is in
compliance

with

the

[FLSA].”

Id.

(alteration

in

original)

(quoting 5 C.F.R. § 551.104).
Defendants were aware of their obligations under the Act to
pay an overtime premium.
no

efforts

to

obtain

Defendants stipulated that they made
guidance

from

the

federal

or

state

departments of labor as to the proper way to pay Plaintiff.

The

Court finds that the purpose of Defendants‟ dual record keeping
system

(i.e.,

obligation

Clock

under

Time

the

Act

and
to

Paper
pay

Time)

was

overtime.

to

This

avoid

its

multi-year

scheme to avoid paying overtime establishes the willfulness of
Defendants‟ actions.

The applicable statute of limitations is,

therefore, three years.
on

May

14,

2010,

ECF

Because Plaintiff filed his Complaint
No.

1,

Plaintiff

may

recover

unpaid

overtime under the FLSA from May 14, 2007 until the end of his
employment on February 6, 2010.

14

IV.

Regular Hourly Rate and Overtime Premium Calculation
Overtime

pay

premium

is

one

and

one

half

employee‟s “regular rate.” 29 U.S.C. § 207 (a)(1).

times

the

The “regular

rate” is the hourly rate paid to an employee for the normal nonovertime work period.

Unless specifically excluded, the regular

rate includes “all remuneration for employment paid to, or on
behalf of, the employee.” 29 U.S.C. § 207(e).

Based on the

testimony received at trial, the Court finds that Plaintiff‟s
“regular” hourly rate was $8.07, which consisted of the $7.50
rate paid to him and an additional fifty-seven cents ($0.57) per
hour that represents the employee‟s portion of FICA paid on
behalf of Plaintiff by the Defendants.

His overtime premium

was, therefore, $12.11. Plaintiff was paid his straight time
rate ($7.50 per hour) for all Paper Time hours worked.

This

results in an underpayment of $4.61 for each hour of work in
excess of forty hours in any workweek.
V.

Hours Worked and Regular Rate
To prevail on a FLSA overtime claim, an employee must prove

that he was “suffered or permitted to work [overtime] without
compensation.”

Allen v. Bd. of Pub. Educ. for Bibb Cnty., 495

F.3d 1306, 1314 (11th Cir. 2007).

“[A]n employee has carried

out his burden if he proves that he has in fact performed work
for

which

he

was

improperly

compensated

and

if

he

produces

sufficient evidence to show the amount and extent of that work

15

as a matter of just and reasonable inference.”
(internal quotation marks omitted).

Id. at 1316

“The burden then becomes

the employer‟s, and it must bring forth either evidence of the
precise

amount

of

work

performed

or

evidence

to

negate

the

reasonableness of the inference to be drawn from the employee‟s
evidence.” Id.
29 U.S.C. § 211(c) requires employers to “make, keep and
preserve records” of employees and of their “wages, hours, and
other conditions and practices of employment” in accordance with
regulations adopted by the Department of Labor‟s Wage and Hour
Division. 29 U.S.C. § 211(c).
regulations
maintain

set

work

employees.

out

in

time,

29

Pursuant to the record keeping
C.F.R.

schedule

and

§

516.2,

pay

employers

records

for

must
their

As to those employees subject to minimum wage and

overtime, payroll records must be kept that includes the hours
worked each day and week. 29 C.F.R. § 516.2(a)(7).

Records for

non-exempt employees must be preserved for at least three years.
29 C.F.R. § 516.5(a).

Defendants failed to maintain its records

in the manner required by 29 U.S.C. § 211(c), 29 C.F.R. § 516.2,
and 29 C.F.R. § 516.5.
An

employer‟s

failure

to

create

and

required records has a legal consequence.

maintain

legally

“„If the employer

fails to produce such evidence, [which is the case here], the
court may then award damages to the employee, even though the

16

result be only approximate.‟” Donovan v. New Floridian Hotel,
Inc., 676 F.2d 468, 471 (11th Cir. 1982) (quoting Anderson v.
Mt. Clemens Pottery Co., 328 U.S. 680, 688 (1946)).
A

summary

introduced

at

of

Plaintiff‟s

trial

as

uncompensated

Plaintiff‟s

Exhibit

overtime

10.

Mr.

was
Lyles

testified that he prepared the summary with his attorneys.

He

also testified that this summary took into account the actual
break time recorded on his available time cards.

The summary

also took into account his normal working days and hours, the
restaurant‟s holidays and his break in service.
Lyles‟s

estimates,

the

hours

of

uncompensated

Based on Mr.
overtime

total

1,368.1.
As set out above, the Defendants have admitted that their
time records are not accurate.

It is impossible to determine

with specificity how many hours Plaintiff worked.

The Court

finds that Plaintiff‟ estimate of his hours is a reasonable
approximation and meets the standard set out in Anderson and
Donovan.
As set out above, the Court has found that Plaintiff is due
an additional $4.61 for each hour of uncompensated overtime for
a total due to the Plaintiff of $6,306.94.
VI.

Liquidated Damages
Plaintiff

damages

in

an

contends
amount

that
equal

he
to

17

is
the

entitled
unpaid

to

liquidated

overtime.

“Any

employer who violates the provisions of section 206 or section
207 of this title shall be liable to the employee or employees
affected in the amount of their unpaid minimum wages, or their
unpaid overtime compensation . . . and in an additional equal
amount as liquidated damages.”
added).

29 U.S.C. § 216(b) (emphasis

Section § 260 provides that:

In any action . . . to recover unpaid minimum wages,
unpaid overtime compensation, or liquidated damages,
under the Fair Labor Standards Act of 1938 . . ., if
the employer shows to the satisfaction of the court
that the act or omission giving rise to such action
was in good faith and that he had reasonable grounds
for believing that his act or omission was not a
violation
of
the
Fair
Labor
Standards
Act
of
1983 . . ., the court may, in its sound discretion,
award no liquidated damages or award any amount
thereof not to exceed the amount specified in section
216 of this title.
29 U.S.C. § 260.
“[L]iquidated

damages

are

mandatory

absent

a

showing

of

good faith.”

Joiner v. City of Macon, 814 F.2d 1537, 1539 (11th

Cir. 1987).

“[T]he district court‟s decision whether to award

liquidated

damages

does

not

become

discretionary

employer carries its burden of proving good faith.”

until

the

Id.

The

employer establishes good faith “if the employer shows to the
satisfaction of the court that the act or omission giving rise
to such action was in good faith and that he had reasonable
grounds

for

believing

that

his

act

or

violation of the Fair Labor Standards Act.”

18

omission

was

not

a

Alvarez Perez, 515

F.3d at 1163; accord 29 C.F.R. § 790.22.

“The employer bears

the burden of establishing both the subjective and objective
components
damages.”

of

that

good

faith

defense

against

liquidated

Alvarez Perez, 515 F.3d at 1163.

Defendants knew of their obligations under the Act and went
to great lengths to avoid them.

Their conduct was willful, and

for these reasons, the Court finds that Defendants have not met
their burden of proving that their failure to comply with the
FLSA was done in good faith.
FLSA

in

the

amount

of

Mr. Lyles proved damages under the

$6,306.94.

The

Court

finds

that

an

additional 6,306.94 in liquidated damages is required and hereby
awards this sum to the Plaintiff.
VII. Individual Liability of Burton Stacey, Jr.
The
directly

FLSA
or

defines

indirectly

an
in

“employer”
the

as

interest

“any
of

relation to an employee.” 29 U.S.C. § 203(d).

an

person

acting

employer

in

The Supreme Court

has emphasized the “expansiveness” of the FLSA's definition of
employer.

Falk v. Brennan, 414 U.S. 190, 195 (1973).

“Above

and beyond the plain language, moreover, the remedial nature of
the statute further warrants an expansive interpretation of its
provisions so that they will have „the widest possible impact in
the national economy.”

Herman v. RSR Sec. Servs. Ltd., 172 F.3d

132, 139 (2d Cir. 1999) (internal quotation marks omitted).

19

“The

FLSA

contemplates

there

being

several

simultaneous

employers who may be responsible for compliance with the FLSA."
Dole v. Elliott Travel & Tours, Inc., 942 F.2d 962, 965 (6th
Cir.

1991).

The

Eleventh

Circuit

has

stated,

“[t]he

overwhelming weight of authority is that 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.” Patel v. Wargo, 803
F.2d

632,

omitted).

637-38

(11th

Cir.

1986)

(internal

quotation

marks

Corporate officers have “operational control” when

they are “involved in the day-to-day operation or have some
direct
Alvarez

responsibility
Perez,

omitted).
sufficient

515

for
F.3d

the
at

supervision
1160

of

(internal

the

employee.”

quotation

marks

Even occasional participation by a defendant can be
for

“employer”

status

if

the

totality

of

the

circumstances demonstrate that the defendant was in charge of
day-to-day operations and exercised direct supervision over the
employee.

See Olivas v. A Little Havana Check Cash, Inc., 324

F. App‟x 839, 845-46 (11th Cir. 2009) (per curiam) (finding that
reasonable person could conclude that wife was employer because
she was involved in day-to-day operations and exercised direct
supervision over employees, particularly when her husband was
out of town).

20

Mr. Stacey is the sole shareholder and President of Burt‟s
Butcher Shoppe.

At all times relevant to this case, Mr. Stacey

had operational control over Burt‟s Butcher Shoppe, including
the ability to hire, fire, discipline and control its employees.
At all times relevant to this case, Mr. Stacey acted on behalf
of Burt‟s Butcher Shoppe as to Plaintiff‟s compensation.

At all

times relevant to this case, Mr. Stacey made the decision to not
pay Plaintiff at time and one half his regular rate for time
worked in excess of forty hours.

Mr. Stacey was aware that the

FLSA required that Plaintiff be paid an overtime premium.

Mr.

Stacey actively engaged in a scheme to circumvent the FLSA by
keeping two separate methods of recording work time.

For these

reasons, the Court finds that Mr. Stacey was an “employer” of
Plaintiff as defined in 29 U.S.C. § 203(d), and therefore is
individually liable for Plaintiff‟s damages.
VIII.

Plaintiff’s Attorney’s Fees and Costs
29 U.S.C. § 216(b) of the FLSA provides that in any action

successfully

brought

under

its

provisions,

the

court

shall

“allow a reasonable attorney‟s fee to be paid by the defendant,
and costs of the action.” 29 U.S.C. § 216(b).

In the Eleventh

Circuit, an award of attorney‟s fees is mandatory for prevailing
plaintiffs under the FLSA. See Dionne v. Floormasters Enters.,
Inc., 647 F.3d 1109, 1115 (11th Cir. 2011); Kreager v. Solomon &

21

Flanagan, P.A., 775 F.2d 1541, 1542 (11th Cir. 1985) (citing 29
U.S.C. § 216(b)).
Additionally, “„[a] request for attorney's fees should not
result in a second major litigation.‟” Norman v. Housing Auth.
of City of Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988)
(alteration in original) (quoting Hensley v. Eckerhart, 461 U.S.
424, 437 (1983)). It is “perfectly proper to award attorney's
fees based solely on affidavits in the record.” Id. at 1303.
“The court, either trial or appellate, is itself an expert on
the question and may consider its own knowledge and experience
concerning

reasonable

and

proper

fees

and

may

form

an

independent judgment with or without the aid of witnesses.” Id.
(internal quotation marks omitted).
The first inquiry in setting the amount of attorneys‟ fees
recoverable

is

to

determine

a

lodestar.

Hours

“reasonably

expended” multiplied by “a reasonable hourly rate” determines
the lodestar.
prevailing
similar

Id. at 1302.

market

services

experience,

and

rate
by

in

“A reasonable hourly rate is the
the

lawyers

reputation.”4

of

relevant

reasonably

Id.

4

legal

at

1299.

community

comparable
The

burden

for

skills,
is

on

Staff time is also compensable. See Missouri v. Jenkins, 491 U.S.
274, 285 (1989). “While it is true that time for secretaries, office
managers, and other administrative personnel is deemed to be subsumed
into an attorney's market rate, the same is not true for paralegals,
law clerks, and other legal assistants to the extent they perform work
traditionally performed by an attorney.” Webster Greenthumb Co. v.
Fulton County, Ga., 112 F. Supp. 2d 1339, 1366 (N.D. Ga. 2000)

22

Plaintiffs to show that the rate is reasonable.

Id.

The rates

charged by Plaintiff‟s counsel and their staff are reasonable
given their experience, qualifications and willingness to pursue
claims under the FLSA on a fee shifting basis.

Plaintiff‟s

counsel divided the work between themselves and there was little
overlap in their efforts.

The Court further finds that the

requested award of attorney‟s fees and costs in this case is
reasonable

and

supported

by

the

record.

Therefore,

the

lodestar is $49,571.78.
The general rule is that where “a plaintiff has obtained
excellent

results,

compensatory

his

fee.

attorney

Normally

this

should
will

recover

encompass

a

fully

all

hours

reasonably expended on the litigation, and indeed in some cases
of

exceptional

Hensley

v.

success

Eckerhart,

an
461

enhanced
U.S.

award

424,

may

435

be

justified.”

(1983).

“In

these

circumstances the fee award should not be reduced simply because
the plaintiff failed to prevail on every contention raised in
the

lawsuit.”

Id.

“Litigants

in

good

faith

may

raise

alternative legal grounds for a desired outcome, and the court's
rejection
sufficient
matters.”

of

or

reason

failure
for

to

reach

reducing

a

certain
fee.

grounds

The

result

is
is

not

a

what

Id.

(Thrash, J.) (citing Jean v. Nelson, 863 F.2d 759, 778 (11th Cir.
1988)).

23

Defendants have presented no credible evidence to suggest
that Plaintiff‟s counsel did not spend the time on this matter
for which they seek a recovery of attorney‟s fees; nor have
Defendants presented any evidence that the amount of time spent
on this matter was unreasonable.

Defendants maintain, however,

that Plaintiff‟s claim for attorneys‟ fees should be reduced
because Plaintiff initially sought more damages in his Complaint
than

were

proven

at

trial.

The

Supreme

Court

has

provided

guidance as to when such a reduction is warranted. In Hensley,
the Supreme Court held that:
Where the plaintiff has failed to prevail on a claim
that is distinct in all respects from his successful
claims, the hours spent on the unsuccessful claim
should be excluded in considering the amount of a
reasonable fee. Where a lawsuit consists of related
claims, a plaintiff who has won substantial relief
should not have his attorney's fee reduced simply
because the district court did not adopt each
contention raised. But where the plaintiff achieved
only limited success, the district court should award
only that amount of fees that is reasonable in
relation to the results obtained.
Id. at 440.
Plaintiff‟s
reasonable

result

attorney‟s

falls

fee

prevailed on all counts.

into

should

the

not

be

general

rule

reduced.

that

a

Plaintiff

He successfully proved he was entitled

to overtime, that the Defendants‟ failure to comply with the
FLSA

overtime

Defendant

was

requirement
liable,

was

and

willful,
that

24

that

liquidated

the

individual

damages

were

appropriate.

The Court finds that Plaintiff obtained excellent

results

a

and

reduction

in

the

fees

is

warranted.5

not

Accordingly, Plaintiff is awarded attorney‟s fees in the amount
of $49,571.78.
The Court finds that Plaintiff is entitled to litigation
costs associated with pursuing the FLSA claims.
216(b).

See 29 U.S.C. §

The costs claimed are allowed by the FLSA and 28 U.S.C.

§ 1920. See Glenn v. Gen. Motors Corp., 841 F.2d 1567, 1575
(11th Cir. 1988) (finding the costs recoverable by prevailing
plaintiffs in FLSA cases under § 216(b) are limited to those
costs

enumerated

in

28

U.S.C.

§

1920).6

The

Court

finds,

5

Plaintiff estimated in the pretrial order that Defendants owed him
$6,085.20 in overtime. Pretrial Order 6, ECF No. 22. This figure is
less than the amount originally claimed in the Complaint.
Plaintiff
sought a reduced amount of damages at trial because Plaintiff admitted
during discovery that he quit working for Defendants for a period of
time, a fact not previously disclosed to Plaintiff‟s counsel.
The
amount of damages estimated in the pretrial order, however, is less
than the amount Plaintiff proved at trial ($6,306.94). The Court also
notes that Plaintiff‟s inability to nail down exactly the amount of
his unpaid overtime compensation was attributable in part to the fact
that Defendants failed to maintain payroll records as required by the
FLSA. The Court finds that under these circumstances, a reduction in
fees based on the amount of damages awarded, compared to the amount
alleged in the Complaint, is not warranted.
6

28 U.S.C. § 1920 provides:

A judge or clerk of any court of the United States may tax as costs
the following:
(1) Fees of the clerk and marshal;
(2)
Fees
for
printed
or
electronically
necessarily obtained for use in the case;

recorded

(3) Fees and disbursements for printing and witnesses;

25

transcripts

however, that Plaintiff is not entitled to recover his witness
fee for Charles Cochran because Cochran did not testify, was not
disclosed until shortly before trial and was not included in the
pretrial

order.

Thus,

the

Court

will

subtract

Plaintiff‟s costs for the Cochran witness fee.

$43.06

from

Accordingly, the

Court awards Plaintiff $1,707.76 in costs.
CONCLUSION
For the foregoing reasons, Defendants‟ motion for judgment
as a matter of law is denied. Plaintiff Jarvis Lyles is awarded
$6,306.94

for

unpaid

liquidated

damages,

and

overtime

compensation,

$51,279.54

for

costs

$6,306.94
and

for

attorney‟s

fees.
The Clerk shall enter a Judgment accordingly in favor of
Plaintiff and against Defendants, jointly and severally, in the
total amount of $63,893.42.
All other pending motions shall be terminated as moot.
IT IS SO ORDERED, this 17th day of October, 2011.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE
(4) Fees for exemplification and the costs of making copies of any
materials where the copies are necessarily obtained for use in the
case;
(5) Docket fees under section 1923 of this title;
(6)
Compensation
of
court
appointed
experts,
compensation
of
interpreters, and salaries, fees, expenses, and costs of special
interpretation services under section 1828 of this title.

26