PATRICIA D. BARKSDALE, Magistrate Judge.
Shawn Forster alleges Smartstream, Inc., ("Smartstream") and Robert Thompson violated the Fair Labor Standards Act ("FLSA") by failing to pay him overtime wages. Doc. 1. Forster moves for summary judgment. Doc. 44. Thompson, proceeding without a lawyer, opposes the motion, Doc. 49, and also moves for summary judgment. Doc. 45. Forster opposes Thompson's motion. Doc. 46. Forster also moves for default judgment against Smartstream, Doc. 51, which has not appeared in the case.
Federal Rule of Civil Procedure 56(a) directs a court to enter summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." A factual dispute will not necessarily preclude summary judgment; "the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (emphasis in original). An issue is genuine if "the evidence is such that a reasonable jury could return a verdict for the non-movant." Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996).
The movant has the initial burden of showing there is no genuine issue of material fact. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). If the movant satisfies that burden, the non-movant "must then go beyond the pleadings, and by its own [evidence], designate specific facts showing that there is a genuine issue for trial." Jeffrey v. Sarasota White Sox, Inc., 64 F.3d 590, 594 (11th Cir. 1995) (internal quotation marks omitted). Conclusory allegations without supporting evidence are insufficient. Holifield v. Reno, 115 F.3d 1555, 1564 n.6 (11th Cir. 1997). The non-movant "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
"When the nonmoving party has the burden of proof at trial, the moving party is not required to `support its motion with affidavits or other similar evidence negating the opponent's claim.'" United States v. Four Parcels of Real Prop., 941 F.2d 1428, 1437 (11th Cir. 1991) (emphasis omitted). Instead, it must show "an absence of evidence to support the nonmoving party's case" or "affirmative evidence demonstrating that the nonmoving party will be unable to prove its case at trial." Id. at 1438. If it has done so, "the non-movant must then show a genuine dispute regarding any issue for which it will bear the burden of proof at trial." Info. Sys. & Networks Corp. v. City of Atlanta, 281 F.3d 1220, 1224-25 (11th Cir. 2002).
"Cross-motions for summary judgment will not, in themselves, warrant . . . granting summary judgment unless one of the parties is entitled to judgment as a matter of law on facts that are not genuinely disputed." United States v. Oakley, 744 F.2d 1553, 1555 (11th Cir. 1984). The standard of review on cross-motions for summary judgment is the same as when only one party files a motion; the court considers each motion on its own merits, resolving all reasonable inferences against the party with respect to that party's motion. Am. Bankers Ins. Grp. v. United States, 408 F.3d 1328, 1331 (11th Cir. 2005).
The following facts are undisputed. They are from declarations of Forster, Doc. 44-1, Jason Charleston, Doc. 44-4, Thompson, Doc. 45 at 5-7, Atibo Petersen, Doc. 45 at 13-14, and Ray Donelly, Doc. 45 at 16-17; the Smartstream Employee Manual, Doc. 44-2; Forster's payroll records, Docs. 44-3, 44-8; Forster's work-order records, Docs. 44-5, 44-8; work emails, Docs. 44-13, 44-14, 44-17, 44-18, 44-19, 44-20, 45 at 19-20; and Forster's employment agreement, Doc. 44-16.
Smartstream, now defunct, provided customers with technology support, including server, website, and email hosting. Doc. 44-1 ¶ 3; Doc. 45 at 5 ¶ 4, 13 ¶ 3, 16 ¶ 3. Robert Thompson, Marion Thompson, and John Thompson were Smartstream shareholders. Doc. 45 at 5 ¶ 3, 9 ¶ 3, 11 ¶ 2. Marion Thompson was Smartstream's payroll manager from March 2005 to June 2014. Doc. 45 at 9 ¶ 2.
Forster worked for Smartstream as an engineer until February 2013. Doc. 44-1 ¶¶ 2, 4; Doc. 44-3; Doc. 44-16 at 3; Doc. 45 at 5 ¶¶ 5, 28. His responsibilities included helping customers—on-site and remotely—and building, analyzing, and maintaining computer networks and email systems. Doc. 44-1 ¶ 5. He received a gross weekly salary of $403.85. Doc. 44-1 ¶ 7, Doc. 44-3. He also received commissions based on amounts billed to clients, provided to him at various intervals, totaling $18,918 for 45 weeks from April 2012 to March 2013. Doc. 44-1 ¶ 8, Doc. 44-3;
Under Smartstream's employee manual, engineers work a minimum of 8 hours a day but may work overtime to timely finish jobs. Doc. 44-2 at 19; accord Doc. 44-12. Forster worked approximately 60 hours a week for the 57 weeks he worked for Smartstream.
The parties dispute whether Thompson, whose name was on the employment agreement Forster signed, Doc. 44-16,
Passed in 1938, the FLSA establishes minimum wages and maximum hours "to protect certain groups of the population from substandard wages and excessive hours which endangered the national health and well-being and the free flow of goods in interstate commerce." Brooklyn Sav. Bank v. O'Neil, 324 U.S. 697, 706 (1945). Unless an exemption exists, § 207 requires an employer to pay an employee for hours worked over 40 in a week at a rate not less than "one and one-half times the regular rate at which he is employed." 29 U.S.C. § 207(a)(1); 29 C.F.R. § 778.101 ("Hours worked in excess of the statutory maximum in any workweek are overtime hours under the statute."). The purpose of the overtime-pay requirement "is twofold: (1) to spread out employment by placing financial pressure on the employer to hire additional workers rather than employ the same number of workers for longer hours; and (2) to compensate employees who for a variety of reasons worked overtime." Klinedinst v. Swift Invs., Inc., 260 F.3d 1251, 1256 n.4 (11th Cir. 2001). To establish a prima facie case for unpaid overtime wages, a plaintiff must establish (1) the defendant employed him; (2) the defendant is an enterprise engaged in interstate commerce covered by FLSA; (3) he worked more than 40 hours a week; and (4) the defendant did not pay him overtime wages. Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1277 n.68 (11th Cir. 2008).
Section 207(i) exempts commissioned employees of retail or service establishments from the FLSA overtime-wage requirement. It provides:
29 U.S.C. § 207(i).
The employer must show an FLSA exemption applies by "clear and affirmative evidence." Klinedinst, 260 F.3d at 1254. The Court construes exemptions narrowly against the employer who asserts them. Jeffery, 64 F.3d at 594. The commissioned-work exemption has three elements: (1) the employer must be a retail or service establishment; (2) the employee's regular rate of pay must exceed one and one-half times the federal minimum wage; and (3) the employee must earn more than half his salary in commissions from goods and services during a representative period not less than one month. Rodriguez v. Home Heroes, LLC, No. 8:13-cv-2711-T-26-26AEP, 2015 WL 668009, at *5 (M.D. Fla. Feb. 17, 2015) (unpublished) (quoting 29 U.S.C. §§ 207(i) & 779.410).
For the second element, the "regular rate of pay" is "`the hourly rate actually paid the employee for the normal, nonovertime workweek for which he is employed' and `by its very nature must reflect all payments which the parties have agreed shall be received regularly during the workweek, exclusive of overtime payments.'" 29 C.F.R. § 779.419(b) (quoting Walling v. Youngerman-Reynolds Hardwood Co., 325 U.S. 419, 424 (1945)). "Regular rate" includes "all remuneration for employment paid to, or on behalf of, the employee" 29 U.S.C. § 207(e). "The regular rate is determined by dividing the . .. total compensation during the workweek by the number of hours worked." Klinedinst, 260 F.3d at 1256 (citing 29 C.F.R. § 779.419(b)); see also 29 C.F.R. § 778.109 ("The regular hourly rate of pay of an employee is determined by dividing his total remuneration for employment (except statutory exclusions)[
After obtaining the hourly rate, a court must compare it to the minimum rate of pay of the employee to determine if the rate is one and one-half times the minimum. 29 C.F.R. § 779.419(b). The federal minimum wage—applicable since July 2009—is $7.25. 29 U.S.C. § 206(a)(1). One and one-half times that wage is $10.88. An employee's regular rate of pay must exceed that amount for the employer to satisfy the second element of the commissioned-work exemption.
An employer must "maintain and preserve payroll or other records" for each employee subject to the minimum wage and overtime requirements . . . including the regular hourly rate of pay for any workweek in which overtime compensation is due, the hours worked each workday (fixed period of 24 consecutive hours), and the total hours worked each workweek (fixed period of 7 consecutive workdays). 29 C.F.R. § 516.2(a)(6)(i) & (7). If an employer fails to do so, and there is conflicting evidence regarding the number of hours worked per week, the number of hours "is a genuine issue of material fact for the factfinder." Klinedinst, 260 F.3d at 1257. But if the employee produces undisputed evidence regarding his working hours, the court may use the estimate on summary judgment to determine if those hours, combined with the records of the employee's compensation, establish the employee's regular rate of pay above one and one-half times the minimum wage. Kuntsmann v. Aaron Rents, Inc., 903 F.Supp.2d 1258, 1267-68 (N.D. Ala. 2012); see also Henriquez v. Total Bike, LLC, No. 13-20417-CIV, 2013 WL 6834656, at *3 (S.D. Fla. Dec. 23, 2013) (unpublished) (taking the plaintiff's estimate of hours worked as true for summary judgment, considering all compensation, and dividing by the total number of weeks times the alleged hours worked to determine regular rate of pay for the exemption).
The FLSA defines an employer as "any person acting directly or indirectly in the interest of an employer in relation to an employee." 29 U.S.C. § 203. "The 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 under the FLSA for unpaid wages." Patel v. Wargo, 803 F.2d 632, 637-38 (11th Cir. 1986). "To be personally liable, an officer must either be involved in the day-to-day operation or have some direct responsibility for the supervision of the employee." Id. at 638.
Forster argues he is entitled to summary judgment on liability because the undisputed facts establish Thompson is individually liable and not entitled to claim any exemption, and he worked over 40 hours a week without overtime compensation. Doc. 44 at 9-13. He argues he is entitled to summary judgment on damages because Thompson failed or refused to maintain records of his work hours. Doc. 44 at 13-20. Citing 29 C.F.R. §541.200 (defining "employee employed in a bona fide administrative capacity" in § 213(a)(1) to mean any employee "[c]ompensated on a salary or fee basis at a rate of not less than $455 per week"), he argues he cannot qualify for any exemption under 29 U.S.C. § 213(a)—whether executive, administrative, or professional—because his salary was less than $455 a week. Doc. 44 at 9-11. He argues the commissioned-work exemption does not apply because the defendants
Because the defendants failed to offer time records, the work orders do not accurately reflect hours worked, and the defendants have presented no other evidence to negate his hours-worked approximation, Forster argues he may rely on his approximation of 60 hours a week. Doc. 44 at 13-20. He argues this establishes he worked 20 hours of overtime for 57 weeks and should have been paid an overtime rate of $15.15,
Thompson responds summary judgment is unwarranted because the parties dispute whether Smartstream was a retail or service establishment and Forster's pay exceeded one and one-half times the minimum hourly rate. Doc. 49 at 2-4. Thompson argues most of Forster's pay came from commissions, and the record does not establish the number of hours he worked. Doc. 49 at 2-4. Thompson argues his base pay plus commission exceeded the $455 threshold and one and one-half times the minimum wage. Doc. 49 at 4.
Although the latter argument appears to relate to the administrative exemption under 29 U.S.C. § 213(a) because he references the $455 amount, Thompson does not appear to argue Forster qualifies for any exemption other than the commissioned-work exemption. See generally Doc. 49.
Forster does not contend Thompson cannot satisfy the first element of the commissioned-work exemption—whether Smartstream is a retail sales establishment. The only issue now before the Court regarding the commissioned-work exemption relates to the second element—Forster's regular rate of pay (and whether Thompson can establish it without adequate records). The Court therefore limits its analysis to that issue.
Failing to keep records does not preclude Thompson from relying on the exemption, but it either creates a question of fact as to the number of hours worked if he can present disputed evidence, or permits Forster to rely on his own approximation of hours worked if he cannot. See Klinedinst, 260 F.3d at 1256-57; Kuntsmann, 903 F. Supp. 2d at 1267-68. For purposes of deciding the motions for summary judgment, the undisputed record shows that Forster worked 60 hours a week each week he worked for Smartstream. Doc. 44-1 ¶ 22. He submits payment records for 45 of those weeks and no other information regarding how much he was paid the remaining 12 weeks. Doc. 44-3. The Court can only determine on summary judgment the regular rate of pay for those weeks the record contains both hours worked and amounts paid. Although the regulations provide a regular rate of pay should be established weekly, the Court is limited to applying the bonuses during the entire 45-week period because Forster received the bonuses intermittently and the record is silent as to what bonuses apply to what weeks.
Taking $403.85 for 45 weeks ($18,173.25), adding $18,918 in commissions paid during that period ($37,091.25), and dividing by the total number of hours worked— 60 a week for 45 weeks (2700)—the regular rate of pay is $13.74. This rate exceeds one and one-half times both the federal minimum wage rate (and the Florida minimum-wage rate that Forster applies without explanation). Forster is not entitled to summary judgment on the applicability of the commissioned-work exemption.
On Thompson's individual liability, he disputes the extent of his involvement with Forster. He explains he did not work for Smartstream until the last five months of Forster's employment there, instead working for an entirely different company, Jacksonville Electric Authority, until Eizenhafer's departure from Smartstream in September 2012. Doc. 45 at 5 ¶¶ 10-14, 16. Although Forster presents evidence he reported to Thompson directly, Doc. 44-1 ¶¶ 6, 9, 15, Doc. 44-13, and Thompson supervised him and assigned him projects, individually or with Eizenhafer, Doc. 44-17, Doc. 44-18, Doc. 44-20, viewing the evidence in the light most favorable to Thompson as the non-movant, Forster has not met his burden to show the absence of a genuine dispute of material fact as to whether Thompson could have been Forster's employer, at a minimum, for the first nine months of his employment. Forster is not entitled to summary judgment on Thompson's individual liability.
Thompson makes no arguments in his motion but instead states he is seeking summary judgment under Rule 56, cites declarations and materials produced in discovery as containing the material undisputed facts, attached as exhibits to his motion, and moves the Court to grant summary judgment in his favor. Doc. 45. Forster responds Thompson's motion is deficient because it does not identify each claim or defense on which he seeks summary judgment, identify the facts on which he relies to seek summary judgment, or contain a memorandum of authority depriving Forster of his opportunity to respond to his factual and legal assertions. Doc. 46 at 1-2. Forster argues Thompson produced no factual basis for summary judgment on Forster's overtime-wage claim to demonstrate entitlement to an exemption, maintenance of accurate time records, payment of proper compensation, the number of hours Forster worked, the amount of damages, and the absence of individual liability. Doc. 46 at 3-4.
Rule 56(a) requires a party moving for summary judgment to identify "each claim or defense . . . on which summary judgment is sought." Fed R. Civ. P. Rule 56(a). Although the Court construes pro se filings liberally, Bellizia v. Fla. Dep't of Corr., 614 F.3d 1326, 1329 (11th Cir. 2010), it cannot serve as de facto counsel, GJR Investments, Inc. v. County of Escambia, 132 F.3d 1359, 1369 (11th Cir. 1998), overruled on other grounds by Ashcroft v. Iqbal, 556 U.S. 662 (2009). "There is no burden on the . . . court to distill every potential argument that could be made based upon the materials submitted before it on summary judgment." Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995).
Thompson makes no argument on his entitlement to summary judgment. Instead, he submits his record evidence and leaves the Court to discern potential bases for summary judgment. The Court declines to do so. See Resolution Trust Corp., 43 F.3d at 599. In construing the motion liberally, the Court considered the evidence presented as though in opposition to Forster's motion for summary judgment, as discussed above. Thompson has failed to meet the burden to show an absence of material fact on any issue and is not entitled to summary judgment.
Forster seeks a default judgment against Smartstream under Federal Rule of Civil Procedure 55(b)(2) and the Court's order, Doc. 48. A court may not enter judgment against a defaulting defendant where a jointly liable or similarly situated non-defaulting defendant prevails on the merits of the case. Gulf Coast Fans, Inc. v. Midwest Elecs. Importers, Inc., 740 F.2d 1499, 1512 (11th Cir. 1984) (citing Frow v. De La Vega, 82 U.S. 552 (1872)); see also Wright & Miller § 2690 (stating that when multiple defendants have closely related defenses or are alleged to be jointly liable, "entry of judgment . . . should await an adjudication of the liability of the nondefaulting defendants"). Where a plaintiff makes joint claims against multiple defendants and one defaults, the court should enter a default against that defendant and proceed with the case on the merits against the remaining defendants. Frow, 82 U.S. at 554. Here, because the Court denies summary judgment against Thompson, the case will continue on his liability. Forster seeks to hold Thompson and Smartstream jointly and severally liable. The Court therefore denies the motion as premature without prejudice to refiling after resolving the case against Thompson.
The Court:
