Calvo v. B & R Supermarket, Inc.

• Decision Date: 28 October 2014
• Docket Number: Case No. 13–CIV–24000.
• Citation: 63 F.Supp.3d 1369
• Court: U.S. District Court — Southern District of Florida
• Parties: Dolly Pretty CALVO and other similarly situated individuals, Plaintiff(s), v. B & R SUPERMARKET, INC. d/b/a Milam's Market, Defendant.

63 F.Supp.3d 1369

Dolly Pretty CALVO and other similarly situated individuals, Plaintiff(s)

v.B & R SUPERMARKET, INC. d/b/a Milam's Market, Defendant.

Case No. 13–CIV–24000.

United States District Court, S.D. Florida.

Signed Oct. 28, 2014.

Peter Neil Andresky, The Andresky Law Firm, P.A., Davie, FL, Ruben Martin Saenz, The Saenz Law Firm, P.A., Aventura, FL, for Plaintiff.

Leslie W. Langbein, Langbein & Langbein, Miami Lakes, FL, for Defendant.

ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

BETH BLOOM, District Judge.

THIS CAUSE is before the Court upon the Motion for Summary Judgment, ECF No. [34] (the “Motion”), filed by Defendant B & R Supermarket, Inc. (“Defendant”). This action arises under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”). Plaintiff Dolly Pretty Calvo (“Plaintiff”) alleges that Defendant failed to appropriately compensate her for her work in excess of forty hours per week in violation of the statute, and claims roughly $21,000 in actual damages and the same in liquidated damages. Defendant, in the instant Motion, contends that Plaintiff falls within both the executive and administrative exemptions to the FLSA's requirements. Plaintiff responded in objection to the Motion, ECF No. [47] (the “Response”), and Defendant timely replied, ECF No. [53] (the “Reply”). The matter is now ripe for adjudication. The Court has reviewed the Motion, all supporting and opposing filings and submissions, and the record in the case. For the reasons that follow, Defendant's Motion for Summary Judgment is GRANTED.

I. PLAINTIFF'S DECLARATION IN RESPONSE

In support of her Response to the Defendant's Motion, Plaintiff filed a statement of facts in opposition to Defendant's statement of facts, attached to which is a sworn declaration by Plaintiff. See ECF No. [48–1] (“Plaintiff's Declaration”). Plaintiff's counter-statement of facts and Response are grounded in large part on Plaintiff's Declaration.

When considering a motion for summary judgment, “[a] district court may disregard an affidavit as a sham when a party to the suit files an affidavit that contradicts, without explanation, prior deposition testimony on a material fact.” Kernel Records Oy v. Mosley, 694 F.3d 1294, 1300 n. 6 (11th Cir.2012) (citing Van T. Junkins & Assocs., Inc. v. U.S. Indus., Inc., 736 F.2d 656, 657 (11th Cir.1984) ); see also Wallace v. Pub. Health Trust of Dade Cnty., 370 F.Supp.2d 1247, 1250 (S.D.Fla.2005) (“affidavit [which] attempts to contradict clear deposition testimony to defeat summary judgment, [ ] is impermissible”); Pennant v. Convergys Corp., 368 F.Supp.2d 1307, 1312 (S.D.Fla.2005) (“The Court ‘may disregard an affidavit submitted solely for the purpose of opposing a motion for summary judgment when that affidavit is directly contradicted by deposition testimony.’ ”) (quoting McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1240 n. 7 (11th Cir.2003) ); Moore v. Tractor Supply Co., 352 F.Supp.2d 1268, 1275–76 (S.D.Fla.2004) (“A party opposing summary judgment may not substitute an affidavit alleging helpful facts in place of earlier deposition testimony in hopes of avoiding summary judgment.”). The sham affidavit rule is appropriate when “earlier deposition testimony ... consist[s] of clear answers to unambiguous questions which negate the existence of any genuine issue of material fact.” Lane v. Celotex Corp., 782 F.2d 1526, 1532 (11th Cir.1986) (quotations omitted); see also Houlihan Lokey Howard & Zukin Capital, Inc. v. Protective Grp., Inc., 506 F.Supp.2d 1230, 1245 (S.D.Fla.2007) (“[B]efore disregarding an affidavit as a sham, there must be an unexplained inherent inconsistency between the deposition testimony at issue and the affidavit.”) (citing Rollins v. TechSouth, Inc., 833 F.2d 1525, 1530 (11th Cir.1987) ). “The ... sham affidavit rule applies with equal force to declarations.” Hamilton v. Coffee Health Grp., 949 F.Supp.2d 1119, 1126 (N.D.Ala.2013).

Plaintiff's Declaration consists in large part of self-serving statements and opinions otherwise unsubstantiated by the record before the Court. Throughout her Declaration, Plaintiff specifically contradicts her own deposition testimony. See ECF No. [34–3] (“Plaintiff's Deposition Transcript”). Moreover, Plaintiff has not explained the inherent inconsistencies between her deposition testimony and the Declaration. Therefore, Plaintiff's Declaration cannot alone create a genuine issue of material fact, and the Court will disregard Plaintiff's Declaration when and to the extent it contradicts Plaintiff's deposition and other clear record evidence. See Pennant, 368 F.Supp.2d at 1312 (disregarding plaintiff's affidavit as a sham); Hamilton, 949 F.Supp.2d at 1127 (striking contradictory portions of plaintiff's declaration); Moore, 352 F.Supp.2d at 1276 (“Plaintiff's affidavit is stricken from the record insofar as it is inconsistent with Plaintiff's deposition testimony”); Aira v. Best Nat. Vending, Inc., 2012 WL 4935086, at *9 (S.D.Fla. Oct. 16, 2012) (“To the extent that his subsequent affidavit attempts to create a fact question ... it is a sham and will not be considered.”).

II. MATERIAL FACTS

Defendant owns and operates four grocery stores in Miami–Dade County, Florida. ECF No. [34–3] (“Max Milam Declaration”) ¶ 5. Plaintiff was employed as an Assistant Store Manager in Store # 4, located in Sunny Iles Beach, Florida (the “Store”). Id.; ECF No. [34–5] (“Callejas Declaration”) ¶¶ 1, 3; Pl. Dep. Tr. 34:3–5; 209:21–210:12. Plaintiff worked at the store for approximately thirteen years, the first five years as an associate and the last eight years as an Assistant Store Manager. Pl. Decl. ¶ 4. Plaintiff was terminated by Defendant in June, 2013. Pl. Dep. Tr. 14:24–17:3; Pl. Decl. ¶ 4.

During the last three years of Plaintiff's employ at the Store, Robert Callejas acted as the Store Manager. Callejas Decl. ¶ 1; Pl. Dep. Tr. 45:22–46:7. Plaintiff and the only other Assistant Store Manager, Nancy Beltran, reported directly to Callejas. Callejas Decl. ¶ 3.; Pl. Dep. Tr. 45:22–46:7. After Callejas, Plaintiff and Beltran were the next highest ranking employees in the Store. Callejas Decl. ¶ 3; Pl. Dep. Tr. 103:11–104:18. Plaintiff describes Beltran as the “first assistant.” See, e.g., Pl. Dep. Tr. 89:18; 97:20–23; 197:19–21. Callejas, Plaintiff and Beltran were the only on-site managers in the Store with authority over the Store's operations and other employees who worked at the Store. Callejas Decl. ¶ 3; see also Pl. Dep. Tr. 113:2–3.

The Store is open seven days a week from 7:00 a.m. to 11:00 p.m. Callejas Decl. ¶ 4. Callejas, Plaintiff and Beltran's schedules were set to ensure that one of them was present in the store at all times when it was open for business. Id.; ECF No. [34–7] (Sample Schedules). Callejas' normal work schedule was 5:00 a.m. to 5:00 p.m. on all days except Wednesday and Sunday. Callejas Decl. ¶ 5. Beltran and Plaintiff normally took off alternating Fridays and Saturdays. Id. ¶ 4; Sample Schedules. Beltran worked the opening shift on two days, from 5:00 a.m. to 4:00 p.m., and closing shift on two days, from 3:00 p.m. to 12:30 a.m., and the mid-day shift once a week, from 11:30 a.m. to 9:00 p.m. Callejas Decl. ¶ 5. Plaintiff typically worked the closing shift, from 3:00 p.m. to 12:30 a.m. Pl. Dep. Tr. 54:20–55:12. Plaintiff, central to her claim but not critical to the instant Motion, disputes that she worked only forty-five to forty-eight hours a week.

Plaintiff was the highest ranking employee in the Store from roughly 5:30 p.m. to 12:30 a.m. two to three days a week, and from 9:00 p.m. to 12:30 a.m. two to three day a week. Id. 102:2–104:18; 112:22–113:3; Sample Schedules. Plaintiff's shift overlapped with that of her immediate supervisor, Callejas, three days a week for two hours each shift. Id.; Callejas Decl. 6. The combined overlap between Plaintiff's scheduled hours and those of Callejas and Beltran totaled about thirteen hours weekly. Of the forty-five hours she was scheduled to work each week, Plaintiff worked roughly thirty hours as the sole Store Manager or Assistant Store Manager. During those times, Callejas characterized Plaintiff as the “Acting Store Manager.” Callejas Decl. ¶ 7.

Defendant's corporate management (its President, Executive Vice President, Vice President, and Vice President of Retail Operations) are located at Defendant's corporate headquarters in Miami Springs, Florida. M. Milam Decl. ¶ 4. During her last three years at the Store, Plaintiff saw Defendant's President, Allen Milam, and Vice President, A.J. Milam, two to three times each. Pl. Dep. Tr. 101:6–12, 14–22. Plaintiff interacted with Defendant's Executive Vice President, who would call the Store on occasion while monitoring activities there from Defendant's corporate offices, three to four times by phone during the same period. Id. 101:1–5; 113:20–115:22. Plaintiff saw Norman Orths, Defendant's Vice President of Retail Operations, once or twice a month. Id. 100:8–25.

The Store was divided into several different departments, such as dairy, produce, deli, and grocery. Pl. Dep. Tr. 198:25–199:14. Certain departments employed hourly employees referred to as Department Managers, who would report directly to Callejas, Beltran, and Plaintiff. See, e.g., id. 67:19–21; 179:24–180:3. The Store also employed lead workers, cashiers, baggers, stockers, clerks, and a data entry employee, most of who were hired at the prevailing minimum wage rate. Callejas Decl. ¶ 19–20. Of the sixty-eight to seventy-five associates employed at the Store, Plaintiff supervised between twenty and thirty employees on her shifts. Id. 47:2–25; Callejas Decl. ¶ 20; M. Milam Decl. ¶ 5.

On days when Plaintiff's shift overlapped with Callejas, Plaintiff would start her shift by reporting to Callejas. Pl. Dep. Tr. 55:9–12. Callejas would update Plaintiff for fifteen to twenty minutes as to “pertinent” matters or ongoing issues at the Store, such as the daily sales volume to that point, whether any...