Cusumano v. Maquipan Intern., Inc.

• Decision Date: 01 July 2005
• Docket Number: No. 604CV787ORL31KRS.,604CV787ORL31KRS.
• Citation: 390 F.Supp.2d 1216
• Parties: Greg CUSUMANO, Plaintiff, v. MAQUIPAN INTERNATIONAL, INC. d/b/a Pan & Plus & Antonio Castano, Defendants.
• Court: U.S. District Court — Middle District of Florida

Page 1216

390 F.Supp.2d 1216

Greg CUSUMANO, Plaintiff, v. MAQUIPAN INTERNATIONAL, INC. d/b/a Pan & Plus & Antonio Castano, Defendants.

No. 604CV787ORL31KRS.

United States District Court, M.D. Florida, Orlando Division.

July 1, 2005.

Charles L. Scalise, Konstatine E. Pantas, Scott Adams, Pantas Law Firm, Orlando, FL, for Plaintiff.

Gary Andrew Costales, Law Office of Gary A. Costales, P.A., Miami, FL, John T. Stemberger, Law Offices of John Stemberger, Orlando, FL, for Defendants.

ORDER

PRESNELL, District Judge.

In this case, the Plaintiff, Greg Cusumano ("Cusumano") has sued the Defendants, Maquipan International, Inc. ("Maquipan") and Antonio Castano ("Castano," collectively referred to with Maquipan, where appropriate, as the "Defendants") under the Fair Labor Standards Act, 29 U.S.C. 201, et seq. (the "FLSA") and Florida Statute Chapter 448, asserting that he is entitled to unpaid overtime wages. This matter is before the Court on several motions for partial summary judgment, as follows: first, Cusumano's Motion for Summary Judgment on the Defendants' Fourth Affirmative Defense (Doc. 54), and the Defendants' Response thereto (Doc. 62); and, second, Cusumano's Motion for Summary Judgment on Count One (Doc. 57), and the Defendants' Response thereto (Doc. 64).

I. Background

A. The Parties

Cusumano is a resident of Orange County, Florida. He was employed by Maquipan from September of 2002 through August of 2003.

Maquipan is a Florida corporation, and is an employer as defined by 29 U.S.C. section 203(d). Castano is the owner and/or an officer of Maquipan. Maquipan "sell[s] a European concept of bakery," selling products such as pastries, bread and baked goods from Europe in the United States. (Doc. 58, Att. 2 at 19, 22-23).

B. Facts

Cusumano was hired as a warehouse supervisor or a branch manager,¹ but the geographic area in which he was to work had not been developed, so he was trained for other tasks, such as baking, displaying and presenting products. (Doc. 63, at 35, 78). Cusumano visited account customers,² trained their employees on Maquipan's equipment and products, and demonstrated Maquipan's products to the end consumer. (Id. at 36, 40-41, 71, 78). He performed these duties the entire time he worked for Maquipan. (Id. at 36). Cusumano also performed additional duties, including: sales calls, including cold calls to develop new business, (id.); making deliveries to customers, (id. at 37, 71); repairing Maquipan equipment at customer accounts; installing Maquipan equipment for customers; taking physical orders for products from customers, (id. at 37-38, 45, 71); and working with customers when they had complaints about Maquipan's products, (id. at 74). Cusumano's job required extensive travel in the central Florida area. (Id. at 42).

For a period of six weeks, Cusumano worked at a U-Save supermarket in Tampa, where he would bake products, ensure that the products display was filled, monitor a cooler where products were stored, provide samples of Maquipan products to end consumers, and train and supervise U-Save employees. (Doc. 63 at 78-79, 82, 85, 88). Cusumano states that during that time, he worked at the store for approximately 14 or 15 hours per day, six or seven days per week,³ (id. at 85), for an average of between eighty and one hundred sixteen hours per week, (id. at 37; Doc. 57, Att. 2 at 27).

Cusumano was not responsible for supervising two or more people on a day-to-day basis. (Doc. 57, Att. 2 at 30; Att. 3 at 15). He did not have the authority to hire or fire employees, (Doc. 57, Att. 2 at 31) and he generally operated on his own, (id. at 37). Cusumano states that his time on the job was generally divided up as follows: he spent approximately twenty percent of his time attending to sales duties, (Doc. 57, Att. 2 at 51); eighty percent of his time was spent on manual work, including picking up and delivering Maquipan products, (id. at 32); he drove a delivery truck one and one-half to two days each week,⁴ (Doc. 63 at 56); and he made repairs to equipment approximately once every three weeks, (id. at 62).⁵

There is some dispute over the amount of hours Cusumano worked. He asserts varying amounts of hours, such as: he averaged six work days per week, sometimes seven, (Doc. 63 at 116); he worked between nine and seventeen hours per day, (id.); he averaged between seventy and eighty hours per week over the year he worked for Maquipan, (id.); he worked between eighty and one hundred sixteen hours per week while working at the U-Save in Tampa, (id. at 37; Doc. 57, Att. 2 at 27); he worked approximately one hundred hours per week, at an average of sixteen hours per day, (Doc. 57, Att. 2 at 27); and he averaged sixty hours of overtime per week, (id. at 28). The Defendants' corporate representative, however, states that Cusumano worked for eight or nine hours per day, (Doc. 57, Att. 3 at 25-26); mostly worked five days per week, (id. at 33-34); and that he sometimes worked six days per week, but would make up for it by taking a day off the following week, (id.).

Cusumano received a salary of between $650 and $700 per week, (Doc. 63 at 41), and did not receive extra pay for overtime hours, (Doc. 57, Att. 2 at 29).

C. Claims and Arguments

Cusumano asserts two claims against the Defendants. In Count One, he asserts a violation of Sections 7 and 15 of the FLSA in that he worked many weeks in excess of forty hours per week, yet was not compensated for his excess work at a rate at least one and one-half times his regular pay. In Count Two, under Chapter 448.08 of the Florida Statutes, he asserts that Maquipan wilfully failed to pay him wages or compensation due to him with regard to his employment, which thus constitutes unpaid wages under Chapter 448 of the Florida Statutes.

The Defendants assert four affirmative defenses, including the fourth affirmative defense which is at issue here, in which the Defendants argue that any failure to pay Cusumano overtime wages was based on a good faith belief that he had been paid in accordance with the FLSA and that the Defendants had reasonable grounds to believe that they were in compliance with the FLSA.⁶

Cusumano now seeks the entry of partial summary judgment on several grounds. First, he seeks summary judgment on the Defendants' fourth affirmative defense, arguing that there is no record evidence supporting the Defendants' assertion of good faith or reasonable belief that they complied with the FLSA. Second, Cusumano asserts that he is entitled to summary judgment as to Count One because he has established a prima facie case that he performed work in excess of forty hours per week for which he was not properly compensated, and because the Defendants have failed to keep appropriate records of his time and thus cannot refute his claims.

II. Standard of Review

A party is entitled to summary judgment when the party can show that there is no genuine issue as to any material fact. Fed. R. Civ. P. 56(c); Beal v. Paramount Pictures Corp., 20 F.3d 454, 458 (11th Cir.1994). Which facts are material depends on the substantive law applicable to the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party bears the burden of showing that no genuine issue of material fact exists. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991); Watson v. Adecco Employment Services, Inc., 252 F.Supp.2d 1347, 1352 (M.D.Fla.2003).

When a party moving for summary judgement points out an absence of evidence on a dispositive issue for which the non-moving party bears the burden of proof at trial, the non-moving party must "go beyond the pleadings and by [his] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Celotex Corp. v. Catrett, 477 U.S. 317, 324-25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotations and citation omitted). Thereafter, summary judgment is mandated against the non-moving party who fails to make a showing sufficient to establish a genuine issue of fact for trial. Id. at 322, 324-25, 106 S.Ct. 2548; Watson, 252 F.Supp.2d at 1352. The party opposing a motion for summary judgment must rely on more than conclusory statements or allegations unsupported by facts. Evers v. Gen. Motors Corp., 770 F.2d 984, 986 (11th Cir.1985) ("conclusory allegations without specific supporting facts have no probative value"); Broadway v. City of Montgomery, Ala., 530 F.2d 657, 660 (5th Cir.1976).⁷

The Court must consider all inferences drawn from the underlying facts in a light most favorable to the party opposing the motion, and resolve all reasonable doubts against the moving party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. The Court is not, however, required to accept all of the nonmovant's factual characterizations and legal arguments. Beal, 20 F.3d at 458-59. If material issues of fact exist, the Court must not decide them, but rather, must deny the motion and proceed to trial. Envtl. Def. Fund v. Marsh, 651 F.2d 983, 991 (5th Cir.1981).

III. Legal Analysis — Count One

Cusumano seeks the entry of summary judgment on his claim arising under the FLSA on the grounds that the Defendants are unable to present evidence of the precise amount of work Cusumano performed. In support of his argument, Cusumano cites to the Supreme Court case of Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946). Cusumano's argument in this regard is not well made.

The portion of Anderson to which Cusumano cites states, in relevant part:

An employee who brings suit under s 16(b) of the Act for unpaid minimum wages or unpaid overtime compensation, together with liquidated damages, has the burden of proving that he performed work for which he was not properly compensated.... When the employer has kept proper and accurate records the employee may easily discharge his...