Bleyenberg v. D&N Masonry, Inc. et al

Filing 91

JUDGMENT: Plf Bleyenberg's May 27, 2013 unopposed motion for summary judgment (doc.75) is GRANTED. The Clerk of Court is DIRECTED to enter judgment against defendants D&N and the DeBello defendants. Signed by Magistrate Judge Mark R. Abel on 8/8/13. (sh1)

**AO 450 (Rev. 5/85) Judgment in a Civil Case

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
Jim Bleyenberg,
v.

JUDGMENT IN A CIVIL CASE
Case Number 2: 12-cv-0777

D&N Masonry, Inc., et al.,
Magistrate Judge Abel

[] Jury Verdict. This action came before the Court for a trial by jury. The issues have been
tried and the jury has rendered its verdict.
[] Decision by Court. This action came to trial or hearing before the Court. The issues have
been tried or heard and a decision has been rendered.
[X] Decision by Court. This action was decided by the Court without a trial or hearing.

IT IS ORDERED AND ADJUDGED The Clerk is DIRECTED to enter judgment against
defendants D&N and the DeBello defendants as follows:
1.

Defendants D&N Masonry, Inc, Don DeBello, Nick DeBello, and Cathy DeBello
(“D&N and the DeBello defendants”), as employers under the respective wage-and-hour
laws, are jointly and severally liable for defend-ant D&N Masonry, Inc.’s wage-and-hour
violations.

2.

By failing to pay plaintiff 1.5 times his regular rate of pay for 200 hours worked in 2011
and 2012, D&N and the DeBello defendants violated 29U.S.C. § 207(a) and, as such, are
liable to plaintiff under 29 U.S.C. § 216(b)in the amount of $2,000.00 for back pay and
an additional $2,000.00 for liquidated damages, for a grand total of $4,000.00.

3.

By failing to pay Plaintiff at all for 205.5 hours worked on the two Marys-ville Projects,
D&N and the DeBello Defendants violated 29 U.S.C. § 206(a)(1)(C), Ohio Rev. Code §
4111.14, Article II, Section 34a of the Ohio Constitution, and Ohio Rev. Code §
4115.10(A) and, as such, are liable to Plaintiff:

(a)under 29 U.S.C. § 216(b), in the amount of $1,489.88 as and for back pay and an
additional $1,489.88 as and for liquidated damages;
(b)under Ohio Rev. Code § 4111.14(J)-(K) and Article II, Section 34a of the Ohio
Constitution, in the amount of $1,582.35 as and for back pay and an additional $3,164.70
as and for damages; and
(c)under Ohio Rev. Code § 4115.10(A), in the amount of $8,495.37 as and for back pay
and an additional $2,123.84 as and for penalties.
(d)Believing he can only receive back wages under one law, Plaintiff elects his back
wages under Ohio Rev. Code § 4115.10(A) because that section permits him the largest
recovery, but believes damages and penalties under the other wage-and-hour laws remain
due and owing.
(e) Therefore, Plaintiff’s grand total claim under all wage-and-hour laws for his work on
the two Marysville Projects equals $15,273.79(that is, $1,489.88 in FLSA damages plus
$3,164.70 in Ohio Constitu-tion damages plus $8,495.37 in back prevailing wages plus
$2,123.84in prevailing wage penalties).
4.

By failing to pay plaintiff full prevailing wages for hours he worked on the Marietta
Project, D&N and the DeBello defendants violated Ohio Rev. Code § 4115.10(A) and, as
such, are liable to plaintiff under Ohio Rev. Code § 4115.10(A) in the amount of
$3,661.60 as and for back pay and an additional $915.40 as and for penalties, for a grand
total of $4,577.00.

5.

By failing to pay plaintiff full prevailing wages for hours he worked on the Withrow
Project, D&N and the DeBello defendants violated W. Va. Code §21- 5A-9(b) and, as
such, are liable to plaintiff under W. Va. Code § 21-5A-9(b) in the amount of $4,990.00
as and for back pay and an additional$4,990.00 as and for penalties, for a grant total of
$9,980.00.

6.

By failing to pay plaintiff his wages in full when due as required under Ohio Rev. Code §
4113.15
(A), D&N and the DeBello Defendants are liable to plaintiff under Ohio Rev. Code §
4113.15
(B):(a)for 6% of the unpaid back wages on the two Marysville Projects, that is,
$509.72;(b)for 6% of the unpaid back wages on the Marietta and Withrow Projects, that
is, $519.10;

(c)for $200 with respect to unpaid overtime wages; and(d)for a grant total amount
$1,228.82.7.Without respect to attorneys’ fees and costs, which will be considered after
judgment, D&N and the DeBello Defendants are jointly and severally liable to Plaintiff in
the amount of $35,059.61.
8.

Permitting D&N and the DeBello defendants a setoff of amounts paid to plaintiff by
non-employer third parties with respect to his claims asserted herein in the amount of
$17,092.64, D&N and the DeBello defendants are jointly and severally liable to plaintiff
in the amount of $17,966.97.

9.

The Clerk shall release $14,557.00 of $32,557.00 held (or if less is held, then44% of
attached funds) to Plaintiff under Ohio Rev. Code § 2715.37.

Date: August 8, 2013

s/Spencer D. Harris
Spencer D. Harris Deputy Clerk