POFF v. QUICK PICK, LLC et al

Filing 106

ENTRY - For the foregoing reasons, the Court concludes that the remaining issue for the November 13, 2018 trial is Mr. Shaker's individual liability under the FLSA, IMWL, and IWPS. This includes Mr. Shaker's personal liability for any retal iation under the FLSA which was not at issue, and therefore not actually litigated, at the damages hearing. However, the issue of damages and the facts concerning Mr. Poff's hours worked and wages paid were conclusively established by the Court& #039;s earlier findings following the damages hearing during which Mr. Shaker participated by counsel, and will not be relitigated at the upcoming bench trial. SEE ENTRY. Copy sent to Defendants via US Mail. Signed by Judge Jane Magnus-Stinson on 10/18/2018.(JRB)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
TIMOTHY M. POFF,

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Plaintiff,
v.
QUICK PICK, LLC,
AHMED SHAKER,
Defendants.

No. 2:15-cv-00405-JMS-MJD

ENTRY
A bench trial in this employment wage and retaliation case is scheduled for November 13,
2018 in Room 307, U.S. Courthouse, 46 E. Ohio Street, Indianapolis, Indiana 46204.1 Following
a status conference, the Court ordered the parties to submit trial briefs discussing the issues
remaining for trial and the preclusive effect of the Court’s earlier rulings involving Quick Pick,
LLC. The parties have submitted their briefs, [Filing No. 93; Filing No. 94; Filing No. 95; Filing
No. 96], and this entry sets forth the Court’s determination as to the scope of the upcoming bench
trial.
I.
PROCEDURAL HISTORY
In brief, Mr. Poff filed his operative Amended Complaint in January 2016, alleging that
his now-former employer underpaid his wages and then retaliated against him by firing him when
he brought suit. Specifically, Mr. Poff sued both Quick Pick (his former employer) and Mr. Shaker
(his former supervisor and the owner of Quick Pick) under the Fair Labor Standards Act (“FLSA”)

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By separate entry the Court is moving the start time of the trial to 9:30 a.m.
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and the Indiana Minimum Wage Law (“IMWL”), and sued Quick Pick under the Indiana Wage
Payment Statute (“IWPS”). [Filing No. 6.]
On October 26, 2016, the Court defaulted Quick Pick for failure to appear by counsel.
[Filing No. 32.] On April 27, 2017, following a hearing at which both Mr. Shaker and Quick Pick
appeared in person and by counsel, [see Filing No. 54], Judge Larry J. McKinney issued an Order
granting Mr. Poff’s motion for default judgment against Quick Pick in the amount of $18,123.48.
[Filing No. 57.] The Court subsequently entered final judgment as to Quick Pick, [Filing No. 60],
and awarded Mr. Poff $15,195 in attorney’s fees and costs, [Filing No. 61]. Mr. Shaker has
proceeded pro se since his counsel withdrew on August 7, 2017. [Filing No. 73.]
All that remains in this case is the pending trial on Mr. Poff’s allegations that Mr. Shaker
should be held jointly and severally liable for the judgment entered against Quick Pick. The issue
of the scope of this upcoming trial is now ripe for determination.
II.
DISCUSSION
As described in Mr. Poff’s trial brief, four claims remain against Mr. Shaker: failure to pay
minimum wages under the FLSA, retaliation under the FLSA, failure to pay minimum wages under
the IWML, and failure to pay minimum wages under the IWPS. [Filing No. 93.] The Court first
sets forth the elements of these claims before discussing Judge McKinney’s earlier orders and their
effect on the upcoming trial.
A. Minimum Wage Claims
Mr. Poff asserts related claims for underpayment of wages under the FLSA, IWML, and
IWPS. To prevail under the FLSA, Mr. Poff must demonstrate that he was “employed in an
enterprise engaged in commerce” and that his “employer” paid him less than $7.25 per hour. 29
U.S.C. § 206(a)(1)(C). The FLSA defines an “enterprise engaged in commerce,” in relevant part,

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as “an enterprise whose annual gross volume of sales made or business done is not less than
$500,000 . . . .” Id. § 203(s)(1)(A)(ii). The FLSA further defines an “employer” to include “any
person acting directly or indirectly in the interest of an employer in relation to an employee.” Id.
§ 203(d). Among other fact-specific situations, “[p]ersonal liability may arise from a significant
ownership interest in the corporation coupled with operational control of significant aspects of the
corporation’s day-to-day functions.” Dole v. Simpson, 784 F. Supp. 538, 545 (S.D. Ind. 1991)
(Tinder, J.) (citing Dole v. Elliott Travel & Tours, Inc., 942 F.2d 962, 966 (6th Cir. 1991)); see
also Morgan v. SpeakEasy, LLC, 625 F. Supp. 2d 632, 646 (N.D. Ill. 2007) (collecting cases).
Similarly, the IMWL requires that “every employer employing at least two (2) employees
during a work week shall . . . pay each of the employees in any work week . . . wages of not less
than the minimum wage payable under the federal [FLSA].” Ind. Code § 22-2-2-4(h). However,
the IWML does not apply when the FLSA minimum wage provision applies, as the statute defines
an “employer” as “any individual, partnership, association, limited liability company, [or]
corporation,” excluding “any employer who is subject to the minimum wage provisions of the
federal FLSA.” Id. § 22-2-2-3; cf. Wharton v. Furrer, 620 F. App’x 546, 549 (7th Cir. 2015)
(noting that evidence of operational control and ownership are “consistent with the activities of an
individual employer” and are therefore relevant under the IWML); Meyers v. Meyers, 861 N.E.2d
704 (Ind. 2007) (holding that resolution of issue of whether individuals were co-employers of
plaintiff required factual record).
Finally, the IWPS provides: “Every person, firm, corporation, limited liability company,
or association, their trustees, lessees, or receivers appointed by any court, doing business in
Indiana, shall pay each employee at least semimonthly or biweekly, if requested, the amount due
the employee.” Ind. Code § 22-2-5-1(a). “Every such person, firm, corporation, limited liability

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company, or association who shall fail to make payment of wages to any such employee as
provided in section 1 of this chapter shall be liable to the employee for the amount of unpaid wages
. . . .” Id. § 22-2-5-2. If the “person . . . that failed to pay the employee . . . was not acting in good
faith, the court shall order, as liquidated damages for the failure to pay wages, that the employee
be paid an amount equal to two (2) times the amount of wages due the employee.” Id.
B. FLSA Retaliation Claim
The FLSA’s retaliation provision is more expansive than the FLSA’s minimum wage
provision, providing that it is “unlawful for any person . . . to discharge or in any other manner
discriminate against any employee because such employee has filed any complaint or instituted or
caused to be instituted any proceeding under or related to [the FLSA.]” 29 U.S.C. § 215(a)(3).
Unlike the minimum wage provision, the reference to “any person” does not limit the potential
defendants to “enterprises that . . . do $500,000 in gross annual sales.” Sapperstein v. Hager, 188
F.3d 852, 856 (7th Cir. 1999). Rather, in the context of this matter, Mr. Poff bears the burden of
demonstrating that Mr. Shaker retaliated against him on the basis of a “protected activity,” which
is one that “provides the employer with ‘fair notice’ that the employee is invoking rights under the
FLSA.” Kasten v. Saint-Gobain Performance Plastics Corp., 703 F.3d 966, 975 (7th Cir. 2012).
C. Issues Remaining for Trial
The parties disagree on the issues remaining for trial following Judge McKinney’s default
judgment order as to Quick Pick. First, Mr. Poff contends that Judge McKinney conclusively
found that Mr. Shaker suspended and terminated Mr. Poff because of his FLSA lawsuit, in
violation of the FLSA retaliation provision. [Filing No. 93 at 2-4.] Second, Mr. Poff argues that
the parties fully litigated the number of hours Mr. Poff worked and the damages he should be
awarded. [Filing No. 93 at 6-7.] According to Mr. Poff, all that remains for trial is whether Mr.

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Shaker is liable as an “employer” under either the FLSA or IWML wage provisions and whether
Mr. Shaker is a “person” who owes unpaid wages under the IWPS. [Filing No. 93 at 4-6.]
Mr. Shaker does not address Mr. Poff’s arguments, but instead argues that he should be
allowed to relitigate any and all issues because his previous attorney was ineffective and because
of his need for an interpreter. [Filing No. 94; Filing No. 95.]
In reply, Mr. Poff reiterates his arguments on issue preclusion. Mr. Poff further argues that
Mr. Shaker has no right in a civil matter either to effective counsel or to an interpreter. [Filing No.
96.]
From the outset, as the Court explained in its Order dated October 12, 2018, parties to civil
cases do not have constitutional or statutory rights to court-provided counsel or interpreters.
[Filing No. 102.] Given that there is no right to appointed counsel in a civil case, it is also “quite
clear that there is no Sixth Amendment right to effective assistance of counsel in a civil case.”
Stanciel v. Gramley, 267 F.3d 575, 581 (7th Cir. 2001). Neither Mr. Shaker’s alleged language
difficulties nor his allegations of deficient legal representation entitle him to relitigate any issues
conclusively decided at the damages hearing. Cf. id. (“[I]t is well established that an attorney’s
shortcomings do not entitle his client to a new trial in a civil case.”).
Turning to Mr. Poff’s arguments, Mr. Poff correctly identifies the doctrine of issue
preclusion as providing the relevant standards for determining any preclusive effect of Judge
McKinney’s Order from the damages hearing. As the Supreme Court has observed, “While the
technical rules of preclusion are not strictly applicable in the context of a single ongoing original
action, the principles upon which these rules are founded should inform our decision” as to the
appropriate preclusive effect of an interlocutory decision or partial judgment.

Arizona v.

California, 530 U.S. 392, 410 (2000) (internal quotation and alterations omitted). “Under federal

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law, the doctrine of issue preclusion bars relitigating factual or legal issues if ‘(1) the issue sought
to be precluded is the same as that involved in the prior action; (2) the issue was actually litigated;
(3) the determination of the issue was essential to the final judgment; and (4) the party against
whom estoppel is invoked was fully represented in the prior action [i.e., their interests were
represented even if they were not a party in the prior suit].’” United States ex rel. Conner v.
Mahajan, 877 F.3d 264, 270 (7th Cir. 2017) (alteration in original) (quoting Dexia Credit Local v.
Rogan, 629 F.3d 612, 628 (7th Cir. 2010)).
First, Mr. Poff maintains that the “‘issue’ that [Mr. Shaker] was the ‘person’ who retaliated
against Poff was fully litigated and cannot be re-litigated.” [Filing No. 96 at 4.] Specifically, Mr.
Poff points to the following “Finding of Fact” from Judge McKinney’s Order following the
damages hearing:
On January 1, 2016, Shaker, acting on behalf of Quick Pick, told Poff that he was
suspended from work effective Monday, January, 4, 2016, and that Shaker would
let him know in one week whether or not Poff’s employment would be terminated.
Am. Compl. ¶ 7. Shaker specifically and expressly told Poff that the reason for the
suspension was Poff’s lawsuit against him and Quick Pick. Id. On Saturday,
January 9, 2016, Shaker contacted Poff and told him that his employment was
terminated. Id. ¶ 8. This is direct evidence of retaliation for filing this lawsuit. No
evidence or testimony was presented at the hearing that contradicts this fact.
[Filing No. 57 at 3.]
Mr. Poff’s argument falters on the second element of the issue preclusion analysis, as
construed under federal law: “It is the general rule that issue preclusion attaches only ‘when an
issue of fact or law is actually litigated and determined by a valid and final judgment, and the
determination is essential to the judgment. In the case of a judgment entered by confession,
consent, or default, none of the issues is actually litigated.’” Arizona, 530 U.S. at 414 (alteration
omitted) (quoting Restatement (Second) of Judgments § 27, p. 250 (1982)); see, e.g., United States
v. Bailey, 957 F.2d 439, 443 (7th Cir. 1992) (“Collateral estoppel (or issue preclusion) is the

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appropriate doctrine when different causes of action are involved, but collateral estoppel does not
preclude a party from litigating an issue which was not actually litigated. When a motion is granted,
as here, because of another party’s default, the issue is not litigated.”). Because the facts
underlying Quick Pick’s liability were determined by default, the issues were not “actually
litigated” for purposes of issue preclusion.
Judge McKinney’s finding, moreover, was made in the context of a damages hearing after
default had already been entered against Quick Pick. “Upon default, the well-pled allegations of
the complaint relating to liability are taken as true.” Wehrs v. Wells, 688 F.3d 886, 892 (7th Cir.
2012). Appropriately, then, Judge McKinney cited to Mr. Poff’s Amended Complaint in his
recitation of the facts. Quick Pick’s liability, in other words, was not subject to dispute at the
earlier hearing. But Mr. Shaker’s liability has not heretofore been determined at a contested
proceeding. Mr. Shaker has not been defaulted, so at the upcoming trial the Court may not take
the allegations of Mr. Poff’s pleadings as true. Whether Mr. Shaker retaliated against Mr. Poff for
filing his FLSA lawsuit remains an issue that must be decided at trial.
Unlike the allegations of liability, which are taken as true upon default, “those relating to
the amount of damages suffered ordinarily are not.” Id. Mr. Poff was therefore required to “prove
damages” at the earlier damages hearing. Id. At the damages hearing, both Mr. Shaker and Quick
Pick appeared, by counsel, and were provided the opportunity to present evidence and argument
in an adversarial proceeding. [Filing No. 54.] And critically, Mr. Poff seeks to hold Mr. Shaker
and Quick Pick jointly and severally liable for the same alleged violations. All four elements of
issue preclusion—the issue of damages is identical as between Mr. Shaker and Quick Pick, it was
actually litigated in the damages hearing, it was essential to the decision and judgment against
Quick Pick, and Mr. Shaker was fully represented and able to participate (personally and in his

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role as Quick Pick’s representative) in the hearing—are therefore met with respect to the hours
Mr. Poff worked, the wages he was paid, and the damages Mr. Poff will be owed should Mr.
Shaker be found liable for the same violations at the upcoming trial. These issues have been
conclusively established, and will not be relitigated at the upcoming bench trial.
III.
CONCLUSION
For the foregoing reasons, the Court concludes that the remaining issue for the November
13, 2018 trial is Mr. Shaker’s individual liability under the FLSA, IMWL, and IWPS. This
includes Mr. Shaker’s personal liability for any retaliation under the FLSA which was not at issue,
and therefore not actually litigated, at the damages hearing. However, the issue of damages and
the facts concerning Mr. Poff’s hours worked and wages paid were conclusively established by
the Court’s earlier findings following the damages hearing during which Mr. Shaker participated
by counsel, and will not be relitigated at the upcoming bench trial.

Date: 10/18/2018

Distribution:
QUICK PICK, LLC
3401 S US HWY 41
Suite J-30
Terre Haute, IN 47802
AHMED SHAKER
3336 N. Waverly Rd.
Lansing, MI 48906

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Robert Peter Kondras, Jr.
HUNT HASSLER KONDRAS & MILLER LLP
[e-mail]

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