POFF v. QUICK PICK, LLC et al

Filing 57

ORDER - For the reasons stated herein, the Court concludes that Plaintiff Timothy M. Poff is entitled to default judgment against Quick Pick, LLC, on his claim under the FLSA and is entitled to recover $18,123.48 in compensatory and liquidated damages, plus his reasonable attorney's fees and costs. Although Defendant Quick Pick, LLC, appeared at the hearing on this matter and offered no just reason for delay in entering partial judgment, the Court hereby Orders Quick Pick, LLC, to SHOW CAUSE on or before May 12, 2017, why the Court should delay in entering partial judgment pursuant to Federal Rule of Civil Procedure 54(b) (SEE ORDER FOR ADDITOINAL INFORMATION). Signed by Judge Larry J. McKinney on 4/27/2017.(DW)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

TIMOTHY M. POFF,
Plaintiff,
vs.
QUICK PICK, LLC, and
AHMED SHAKER,
Defendants.

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

ORDER
On October 27, 2016, a Clerk’s Entry of Default was entered against Quick Pick
LLC. Dkt. No. 33. On April 18, 2017, the parties appeared for a hearing, with counsel,
on Plaintiff Timothy M. Poff’s (“Poff’s”) Amended Motion for Default Judgment and Motion
for Hearing on Damages against Defendant Quick Pick LLC. Dkt. No. 39. Poff and
Defendant Ahmed Shaker, principal of Quick Pick, testified at the hearing. For the
reasons stated herein, default judgment in the amount of $xxxxx.xx in favor of Poff is
appropriate.
I. FINDINGS OF FACT 1
An entry of default having been entered, the following facts in the Amended
Complaint are taken as true, or are found by the Court after the hearing.

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Where appropriate or necessary, each of the following Findings of Fact shall be
considered Conclusions of Law, and each of the following Conclusions of Law shall be
considered Findings of Fact.

Quick Pick is a convenience store and novelty business with locations in Indiana.
Am. Compl. ¶ 2. On or about April 1, 2015, Poff was hired to work for Quick Pick as a
cashier at its location in the Honey Creek Square mall in Vigo, County, Indiana. Id. ¶¶ 2
& 3. Shaker is the owner/primary member of Quick Pick, LLC, and has operational control
over the company, its practices and its employees. Id. ¶ 4.
Quick Pick paid Poff at the rate of $7.50 per hour. Id. ¶ 5. Poff was employed on
a part-time basis, however, he was scheduled to work six days per week, Monday through
Saturday. Id. When Poff was scheduled to open the store, Quick Pick required Poff to
report to work a half-hour (30 minutes) prior to the store’s official opening time of 10:00
a.m. Id. At the hearing, Poff entered into evidence a text message from Shaker that told
Poff to report to work a half-hour prior to opening “as usual,” even though the store was
opening an hour earlier for the holidays. Pl.’s Ex. 1. This evidence supported Poff’s
testimony that it was the business practice of Quick Pick to have employees arrive 30
minutes prior to opening. In addition, Poff was required to work some time beyond his
shift on occasion. Am. Compl. ¶ 5. However, Quick Pick would only pay Poff for three
hours of work per day, the time between the official opening time for the store and the
end of Poff’s scheduled shift. Id. Therefore, over an 18-hour work week, Quick Pick
underpaid Poff’s hourly wages and Poff’s effective rate of pay was less than the FLSA
and Indiana minimum wage of $7.25 per hour. Id. Quick Pick failed and refused to pay
Poff for between three and five hours of actual work time each week from April 1, 2015,
to the time it suspended Poff from work in January 2016. Id. See also Pl.’s Exs. 3, 4 &
5. There was no evidence presented by Shaker at the hearing to refute Poff’s claim that
he was underpaid by this amount each and every week of his employment. Shaker

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specifically denied having any of his records with him on the day of the hearing despite
having notice of the purpose of the hearing and being represented by counsel.
On December 11, 2015, Poff filed the Complaint that started this lawsuit alleging
that Quick Pick and Shaker violated the Fair Labor Standards Act (“FLSA”), the Indiana
Minimum Wage Law of 1965, Ind. Code § 22-2-2-3, and the Indiana Statutory Wage
Payment Statute, Ind. Code § 22-2-5. Dkt. No. 1. 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.
On January 11, 2016, Poff filed his Amended Complaint adding a claim for
retaliation under the FLSA. Id. ¶¶ 22-23.
On December 15, 2016, Poff was hired part-time to do janitorial work at the
Masonic Lodge in Terre Haute, Indiana; therefore, it took him 50 weeks to replace his
part-time job at Quick Pick. Pl.’s Ex. 5. Poff’s lost wages during that period total
$7,500.00. Id.
II. CONCLUSIONS OF LAW
Quick Pick is an employer and/or a person as those terms are defined by the FLSA.
29 U.S.C. § 203. During his employment at Quick Pick, Poff qualified as an employee as
that term is defined by the FLSA. 29 U.S.C. §§ 203 & 213.

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Quick Pick violated the FLSA by failing to pay Poff for actual hours worked at a
minimum daily wage. 29 U.S.C. § 206. For this violation, Quick Pick is liable to Poff for
the amount of his unpaid minimum wages, which amounts to $1,561.74, and an additional
equal amount as liquidated damages, for a total of $3,123.48 in damages for violation of
the minimum wage section of the FLSA. Pl.’s Ex. 4; 29 U.S.C. § 216(b). Quick Pick
violated the FLSA by terminating Poff’s employment because he filed this lawsuit. 29
U.S.C. 215(a)(3). For this violation, Quick Pick is liable to Poff for the payment of wages
lost in the amount of $7,500.00 and an additional equal amount as liquidated damages,
for a total of $15,000.00 in damages for retaliatory discharge under the FLSA. Pl.’s Ex.
5; 29 U.S.C. § 216(b). There is no indication in the text of the FLSA that would limit Poff’s
recovery to one or the other type of damages under the FLSA; therefore, the Court
concludes that Poff is entitled to recover a total of $18,123.48 from Quick Pick for violation
of the FLSA. In addition, under the FLSA, Poff is entitled to recover his attorney’s fees
and costs. 29 U.S.C. § 216(b).
Poff’s case under Indiana law is not quite as clear cut, but, because at the time he
filed suit Poff was still employed by Quick Pick, the Court concludes that he may proceed
under the Indiana Wage Payment Statute as he plead. See Treat v. Tom Kelley Buick
Pontiac GMC, Inc., 646 F.3d 487, 491-92 (7th Cir. 2011) (discussing Hollis v. Defender
Security Co., 941 N.E.2d 536, 539-40 (Ind. Ct. App. 2011) (concluding that the
employee’s status at the time the claim is filed determines the operative statute)). Quick
Pick is an employer as that term is defined by the Indiana Wage Payment Statute. Ind.
Code § 22-2-2-3. Under the Wage Payment Statute, Quick Pick must pay Poff for the
hours he worked at his hourly rate of pay and the failure to do so is a violation of the

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statute. Ind. Code § 22-2-5-1. Quick Pick failed to pay Poff for 3.0 hours, for 39 weeks,
for a total of $877.50 in actual damages.
Under the Wage Payment Statute, if the Court determines that Quick Pick was not
acting in good faith, then it must order Quick Pick to pay, as liquidated damages, “an
amount equal to two (2) times the amount of wages due the employee.” Ind. Code § 222-5-2. Here, Poff provided evidence that Quick Pick requested that he report for work 30
minutes prior to his shift to open to the store, but failed to pay him for that time additional
time worked.

In addition, the evidence showed that this was Quick Pick’s usual

expectation. Pl.’s Ex. 1. Quick Pick provided no justification for its failure to pay this
amount; therefore, the Court concludes that Quick Pick acted in bad faith when it failed
to pay Poff for actual hours worked. Pursuant to Indiana Code § 22-2-5-2, Poff is entitled
to $1,755.00 in liquidated damages, for a grand total of $2,632.50 in damages under the
Indiana Wage Payment Statute. The statute also allows Poff to recover his reasonable
attorney’s fees and costs. Ind. Code § 22-2-5-2.
At the hearing, Poff conceded that it is unclear whether or not he may recover
under both the FLSA and the Wage Payment Statute; and expressly stated that, if he
needed to elect a remedy, he would choose to recover under the FLSA because of the
damages available for retaliation under that statute. Moreover, Poff is entitled to his
reasonable attorney’s fees and costs under either rubric.
III. CONCLUSION
For the reasons stated herein, the Court concludes that Plaintiff Timothy M. Poff is
entitled to default judgment against Quick Pick, LLC, on his claim under the FLSA and is
entitled to recover $18,123.48 in compensatory and liquidated damages, plus his

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reasonable attorney’s fees and costs. Although Defendant Quick Pick, LLC, appeared at
the hearing on this matter and offered no just reason for delay in entering partial judgment,
the Court hereby Orders Quick Pick, LLC, to SHOW CAUSE on or before May 12, 2017,
why the Court should delay in entering partial judgment pursuant to Federal Rule of Civil
Procedure 54(b).
IT IS SO ORDERED this 27th day of April, 2017.

________________________________
LARRY J. McKINNEY, JUDGE
United States District Court
Southern District of Indiana

Distribution:
John H.N. Claussen
CLAUSSEN LAW OFFICE
[e-mail]
Robert Peter Kondras, Jr.
HUNT HASSLER KONDRAS &
MILLER LLP
[e-mail]

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