Garcia v. Nachon Enters., Inc.

• Decision Date: 23 November 2016
• Docket Number: Case No. 15–cv–23416–GAYLES
• Citation: 223 F.Supp.3d 1257
• Court: U.S. District Court — Southern District of Florida
• Parties: Ervin GARCIA, Plaintiff, v. NACHON ENTERPRISES, INC.; Carlos Nachon; and Ace Hardware Corp. (Delaware), Defendants. Nachon Enterprises, Inc., Counter–Plaintiff, v. Ervin Garcia, Counter–Defendant.

223 F.Supp.3d 1257

Ervin GARCIA, Plaintiff,

v.NACHON ENTERPRISES, INC.; Carlos Nachon; and Ace Hardware Corp. (Delaware), Defendants.

Nachon Enterprises, Inc., Counter–Plaintiff,

v.Ervin Garcia, Counter–Defendant.

Case No. 15–cv–23416–GAYLES

United States District Court, S.D. Florida.

Signed November 23, 2016

Brody Max Shulman, Jason Saul Remer, Peter Michael Hoogerwoerd, Waynice Amoii Green, Remer & Georges–Pierre, PLLC, Miami, FL, for Plaintiff/Counter–Defendant.

Leslie W. Langbein, Langbein & Langbein, Miami Lakes, FL, for Defendants/Counter–Plaintiff.

ORDER

DARRIN P. GAYLES, UNITED STATES DISTRICT JUDGE

THIS CAUSE comes before the Court on Defendant Nachon Enterprises, Inc.'s ("NEI") Motion for Summary Judgment [ECF No. 70], filed on behalf of itself and Defendant Carlos Nachon, deceased.¹ Plaintiff Ervin Garcia brings claims against the Defendants alleging unpaid wages and retaliation, in violation of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq. , as well as supplemental state law claims alleging breach of agreement, quantum meruit, and unjust enrichment.² These claims arise from the Defendants' alleged failure to pay overtime wages throughout Garcia's employment with the Defendants in 2014 and 2015. The Court has carefully considered the parties' briefs, the record in this case, and the applicable law, and is otherwise fully advised in the premises. For the reasons that follow, NEI's motion for summary judgment shall be granted.

I. BACKGROUND

A. Factual History

1. NEI's Operational Structure and Garcia's Hiring

NEI is a company that sells hardware and building construction materials from its location in Hialeah, Florida. NEI had two operational divisions: Carlos Nachon managed the Building and Construction Materials Division until his death in March 2016; his daughter, Vice President Priscilla Nachon managed the Millwork Division. The Millwork Division and Ms. Nachon's office were located in a separate building (the "Millwork Building") across the street from NEI's principal building (the "Main Building").

In 2014, NEI purchased a membership in the Ace Hardware Stores network ("AHS"). NEI planned to operate a new Ace Hardware Store (the "Ace Store" or the "Store") in the Main Building, which necessitated a remodeling of the Main Building. AHS assigned District Manager Ramon Mayorquin to guide NEI and Ms. Nachon through the set-up process. Mayorquin and Ms. Nachon agreed that NEI should hire a General Manager for the new Ace Store at the outset. Mayorquin suggested Plaintiff Ervin Garcia as a candidate, as he had previous experience working for an AHS subcontractor. When Garcia and Ms. Nachon met to discuss the General Manager position, Ms. Nachon explained that NEI was seeking someone with significant retail and management experience to be responsible for all aspects of the set-up, start-up, and operation of the Ace Store, including budget, personnel, finances, banking, marketing, purchasing, inventory, and vendor and consumer relations. Moreover, she explained that the General Manager would be responsible for formulating new ideas for the Store. Garcia presented Ms. Nachon with a resume that listed his past managerial positions in retail operations. He also represented that he was familiar with AHS's proprietary operational software systems and previously had worked with AHS's district staff (including Mayorquin), and he represented that he possessed managerial skills and experience and leadership capability. Ms. Nachon offered Garcia a starting salary of $49,000, and he accepted. Garcia admitted that he never would have accepted the position of General Manager if he thought he did not have the managerial and leadership skills to perform it. He testified that the "brought to the table" his experience in "supervision, store set up, managerial experience, and leadership" skills. Pl.'s Dep. 69:24–70:6.

2. Garcia's Duties Prior to the Opening of the Ace Store

Garcia began working for the Defendants on or about July 7, 2014. His first project as General Manager was to prepare a transition plan to rid NEI's existing hardware inventory and store fixtures, gut and remodel the Main Building, and furnish it as the Ace Store. Garcia was given a budget to accomplish these tasks. He planned the new layout, appearance, and furnishing of the interior of the Store. He suggested painting the outside of the Main Building, installing new signage and creating a logo to give it a younger, fresher appearance. Garcia selected a sign contractor and ordered a new sign for the front of the Store.

Garcia and Ms. Nachon discussed moving NEI's door sales department from the Millwork Building into the Main Building as part of the remodel. Garcia's layout also apportioned space next to the new Store to relocate Ms. Nachon's office and a work area for her sales staff.

Garcia recommended that an auction be held to quickly sell NEI's existing inventory and store fixtures in order to advance the remodeling. Ms. Nachon agreed. Garcia suggested names of potential auctioneers to Ms. Nachon, who ultimately selected the auctioneer to hire. The two worked together to plan the auction.

Garcia suggested that NEI lease, set up, and use a trailer as a temporary store to handle ongoing business during the remodeling phase, and Ms. Nachon agreed. Garcia obtained quotes and recommended a vendor to use, and Ms. Nachon again agreed. Garcia managed this temporary store and supervised the employees who worked there while he helped remove the old store fixtures.

Garcia canvassed and took bids from local contractors for the remodeling of the Main Building. He made recommendations to Ms. Nachon regarding which vendors to hire, and Ms. Nachon hired those vendors. Ms. Nachon also agreed with Garcia's suggestion that NEI's construction budget could be conserved if NEI employees helped perform some of the demolition work. As part of this demolition work. Garcia recommended dumpster vendors that would hold and haul away debris and Ms. Nachon agreed. Garcia was NEI's liaison to contractors. He oversaw work performed by NEI's employees and outside contractors to ensure that work was of sufficient quality.

During this period of time, Garcia continued to work with AHS regarding the set-up and start-up of the Ace Store. He was in constant communication with Mayorquin and Ms. Nachon discussing products, fixturing, layout, promotions, and AHS's programs. Garcia and Ms. Nachon met daily to discuss implementation of Mayorquin's directives for set-up and start-up, as well as other operational issues. They also met weekly to discuss the remodeling and status of the budget. Ms. Nachon continued to operate the Millwork Division from the Millwork Building and Mr. Nachon continued to manage the Building Construction Materials Division.

Garcia and Ms. Nachon believed that certain items in AHS's core inventory would not sell well. Garcia suggested carrying other types of merchandise in the Ace Store, such as colored mulch. Ms. Nachon agreed and the two discussed these ideas with Mayorquin. Garcia contracted with a new vendor to carry its mulch products and, in the process, negotiated for NEI to be provided free bags of mulch for the Store's grand opening. Garcia comparison-shopped competitors to determine pricing for non-AHS merchandise the Store would carry. He and Ms. Nachon discussed and determined mark-ups. Garcia communicated with and met with existing NEI vendors to consider new lines of merchandise to carry in the Store. He also contracted and interviewed potential new vendors, like Yeti Cooler and a tankless water heater company. Garcia recommended NEI contract with the new vendors and carry new merchandise from established vendors in the Store. Ms. Nachon agreed. Garcia then communicated with those vendors and set up credit accounts.

Garcia oversaw the set-up of the Ace Store by AHS's subcontractor to ensure everything went as planned. Garcia recommended the Ace Store's hours of operation and how many employees to hire. Ms. Nachon agreed with both recommendations. Garcia suggested using Work Force, a state employment agency, to find employees. He called applicants and interviewed them, and Ms. Nachon sat in on some of these interviews. Garcia recommended to Ms. Nachon the best candidates to hire and Ms. Nachon agreed. Garcia then trained the new Ace Store employees on AHS's software and sales systems.

Setting up the Ace Store involved manual labor, as well. Garcia asserts that between July and November 2014, he spent the majority of his working hours performing manual labor, doing construction and renovation work including pulling up flooring, replastering, and painting.

3. Grand Opening of the Ace Store

The Ace Store's grand opening was planned for November 15, 2014. As the date grew closer, Garcia met with Ms. Nachon to discuss publicity of the grand opening and activities and opening day specials the Ace Store should offer. Garcia recommended the distribution of flyers, placement of ads in Spanish language newspapers, and hiring of a Latin radio station to be present on opening day. He also told Ms. Nachon that it was common practice for Ace Hardware Stores to conduct drawings or giveaways on opening day. With the exception of hiring a radio station, Ms. Nachon agreed with these suggestions.

4. Garcia's Duties after the Opening of the Ace Store

After the grand opening, Garcia performed substantially less manual labor. He continued to handle marketing for the Store, and his marketing plan had an overall positive effect on drawing customers to the Store. Garcia suggested and NEI purchased a hot dog stand to attract customers away from NEI's chief competitor, Shell Lumber, and as a convenience for customers.

Garcia directly supervised the Store's employees, assigned their hours, and coordinated his schedule with theirs. He gave the employees instructions, such as to stock and straighten the shelves, place merchandise and displays, and run errands. He delegated...