Ghess v. Kaid
| Decision Date | 27 November 2020 |
| Docket Number | Case No. 2:19-cv-00021 KGB |
| Parties | BILLY GHESS PLAINTIFF v. BALEL KAID, YAHYA ALJOMY, and MAHAMED KAID DEFENDANTS |
| Court | U.S. District Court — Eastern District of Arkansas |
Plaintiff Billy Ghess filed suit against defendants Balel Kaid,1 Yahya Aljomy, and Mahamed Kaid alleging violations of the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. ("FLSA"), and the Arkansas Minimum Wage Act, Ark. Code Ann. § 11-4-201, et seq. ("AMWA"). A bench trial was held in this matter on Monday, February 24, 2020.
On or about January 11, 2018, Mr. Ghess filed suit against Parkin Food Mart, LLC, in Case No. 2:18-cv-00011 KGB (Dkt. No. 1 in Case No. 2:18-cv-00011). Mr. Ghess served the complaint and summons, and Parkin Food Mart, LLC, answered (Dkt. Nos. 2, 4 in Case No. 2:18-cv-00011). Discovery proceeded in that case, and Parkin Food Mart, LLC, responded to Mr. Ghess's interrogatories and requests for production of documents (Pl.'s Tr. Ex. 4). Mr. Ghess filed an unopposed motion to dismiss without prejudice the action, which the Court granted (Dkt. Nos. 13, 14 in Case No. 2:18-cv-00011).
On or about February 15, 2019, Mr. Ghess commenced the current action pursuant to the FLSA and AMWA seeking proper minimum and overtime compensation against individual defendants Balel Kaid, Yahya Aljomy, and Mahamed Kaid in Case No. 2:19-cv-00021 KGB (Dkt. No. 1).2 Balel Kaid and Mahamed Kaid answered the complaint (Dkt. No. 2). Although he was served with the complaint and summons personally by a process server, separate defendant Yahya Aljomy did not answer or otherwise appear to defend in this case (Dkt. No. 5). Defendants Balel Kaid and Mahamed Kaid appeared at trial, testified, and through their counsel defended against Mr. Ghess's allegations. By agreement, the parties admitted Plaintiff's Trial Exhibit 1, which is an estimate of Mr. Ghess's alleged damages, and Defendants' Trial Exhibits 1, 2, and 3, which are federal and state tax returns for the Parkin Food Mart, LLC, for 2016, 2017, and 2018 respectively. There are other exhibits included in the materials that were used as reference by counsel and the witnesses during the bench trial.
In written discovery responses exchanged prior to trial, Mahamed Kaid specifically claimed: (1) Mr. Ghess was an independent contractor who performed work "not tangential to business activities," (2) there is no enterprise liability based on gross sales, making the FLSA inapplicable; (3) there were only three employees, making the AMWA inapplicable; and (4) Mahamed Kaid claimed that he could not be personally liable as he did not participate in day-to-day operations of the company, was only an investor, and was unaware of any decisions regarding hourly pay and work schedules of employees (Pl.'s Tr. Ex. 3, Int. 15).
A. Parkin Food Mart, LLC, Ownership
3. Mahamed Kaid and Balel Kaid each owned a 25% interest and Yahya Aljomy owned 50% interest in the Parkin Food Mart, LLC, at the time relevant to this lawsuit (Dkt. No. 20, at 1).
4. Until approximately December 2018, defendants operated the Parkin Food Mart, LLC (Dkt. No. 20, at 1).
5. After December 2018, defendants no longer operated the Parkin Food Mart, LLC.
6. Prior to filing this lawsuit, Mr. Ghess sued the Parkin Food Mart, LLC; Mahamed Kaid was served with that suit, but that LLC dissolved around that same time.
7. Balel Kaid testified that he walked away from his interest in the Parkin Food Mart, LLC, and he and Mahamed Kaid testified that they are unaware of who owns the Parkin Food Mart, LLC, now.
8. There is also some evidence that Yahya Aljomy brought in a family member to take over Mahamed Kaid and Balel Kaid's interest in the Parkin Food Mart, LLC, so that the business did not shut down completely.
9. Parkin Food Mart, LLC's, discovery responses in the initial lawsuit against the now-defunct LLC stated that Mr. Ghess worked at the store for cash (Pl.'s Tr. Ex. 4, Ints., 2, 5).
10. Upon learning that the LLC dissolved, Mr. Ghess sued the three individual defendants in the current action.
11. Yahya Aljomy is aware of the current lawsuit, according to Mahamed Kaid.
B. Ownership Of Other Business Entities
12. According to Mahamed Kaid, he and Balel Kaid each owned a 50% interest in a convenience store on Seventh Street in West Memphis, Arkansas, referred to as Seventh Street Food Mart, LLC, at the same time they owned an interest in the Parkin Food Mart, LLC.
13. The Seventh Street Food Mart, LLC, was open during 2017 and was about the same size as the Parkin Food Mart, LLC.
14. According to Mahamed Kaid, he ran the Seventh Street Food Mart, LLC, while Balel Kaid ran Parkin Food Mart, LLC, during the time relevant to this lawsuit.
15. Mahamed Kaid and Balel Kaid worked at the Seventh Street Food Mart, LLC, during 2017.
16. In the last three years, Balel Kaid only worked at Seventh Street Food Mart, LLC, and Parkin Food Mart, LLC.
C. General Operation Of Parkin Food Mart, LLC
17. At the time defendants operated it, the Parkin Food Mart, LLC, was a convenience store that sold gasoline, snacks, and hot food cooked on premises.
18. Balel Kaid worked approximately five to seven days per week in the Parkin Food Mart, LLC.
19. Typical operating hours for the Parkin Food Mart, LLC, were 4:00 a.m. to midnight or eventually to 10:00 p.m. or 11:00 p.m. toward the end, seven days per week.
20. There were two shifts usually, a morning shift and an evening shift, at the Parkin Food Mart, LLC.
21. Typically two employees or more worked on a shift at the Parkin Food Mart, LLC.
22. Balel Kaid usually worked the morning shift at the Parkin Food Mart, LLC, from approximately 4:00 a.m. to a little before noon and then left the store.
23. Balel Kaid acted as the manager when he worked his shift.
24. Yahya Aljomy also sometimes worked in the Parkin Food Mart, LLC, during the relevant time, working the evening shift usually. He came in around 2:00 to 10:00 or from 12:00 to 10:00.
25. When Yahya Aljomy worked his shift, he also was the manager, according to Balel Kaid.
26. Employees did not punch a time clock at the Parkin Food Mart, LLC.
27. Balel Kaid claims not to have known of any individuals who worked for cash as needed at the Parkin Food Mart, LLC.
28. According to Balel Kaid, at all times, only Balel Kaid and Yahya Aljomy could hire or fire employees at the Parkin Food Mart, LLC.
29. Balel Kaid worked as a cashier, made sure orders were coming in as needed, ran the kitchen, and just basically did a bit of everything including paperwork. He testified that there was nothing that he did not do at the Parkin Food Mart, LLC.
30. Sherry Gillon usually worked with Balel Kaid on the day shift at the Parkin Food Mart, LLC.
31. Night shift employees at the Parkin Food Mart, LLC, were usually Yahya Aljomy, when he was available, and Viola Jones or Lillie Mems, according to Balel Kaid. 32. Yahya Aljomy drove a truck and traveled out of the country, all of which took him away from the Parkin Food Mart, LLC, sometimes for months at a time including during 2017 and 2018.
33. That is when Mohammad Alsaqqaf, also known as Alex, came in to take Yahya Aljomy's place.
34. Yahya Aljomy brought Mohammad Alsaqqaf in to work sometime Spring or Summer 2017 until the end of 2017 or sometime in 2018, according to Balel Kaid.
35. Mohammad Alsaqqaf worked as a cashier, just working the register.
36. According to Balel Kaid, if there was any trouble or a problem Mohammad Alsaqqaf could not fix, Mohammad Alsaqqaf would call Balel Kaid or Mahamed Kaid.
37. Mohammad Alsaqqaf had some authority but not 100% management authority at the Parkin Food Mart, LLC, according to Balel Kaid. For example, if an order came in, Mohammad Alsaqqaf could take it. If a customer did not get his gas or an employee failed to show up for work, then Mohammad Alsaqqaf would call Balel Kaid or Mahamed Kaid, based on Balel Kaid's testimony.
38. Employees of the Parkin Food Mart, LLC, were given checks for their pay.
39. The bookkeeper wrote out the pay checks, according to Balel Kaid.
40. Balel Kaid called the bookkeeper to give her the numbers for the hours and wages, according to Balel Kaid.
41. It took approximately 278 employee hours per week to run the Parkin Food Mart, LLC, based on Balel Kaid's testimony.
42. Mr. Ghess admitted into evidence IRS W-2 forms for four individuals: Lillie Mems, Mohammad Alsaqqaf, Sherry Gillon, and Viola Jones, who Balel Kaid testified representedall of the employees on the Parkin Food Mart, LLC,'s payroll in 2017. These records total $42,280.56 in W-2 wages, roughly 4,974 hours at Arkansas's minimum wage of $8.50 per hour during 2017 (Pl.'s Tr. Ex. 2).
43. These figures leave approximately 8,926 unaccounted for employee hours to account for approximately 13,900 hours if Parkin Food Mart, LLC, was open 50 weeks per year operating on the schedule with the number of employees each shift Balel Kaid testified about.
D. Mr. Ghess's Work At Parkin Food Mart, LLC
44. According to Mr. Ghess, Balel Kaid asked him one day if he wanted a job at the Parkin Food Mart, LLC, and Balel Kaid told him to come back to work that night.
45. Mr. Ghess knows Mahamed Kaid and Yahya Aljomy, too.
46. Mr. Ghess understood Balel Kaid and Yahya Aljomy were owners at the Parkin Food Mart, LLC.
47. Mr. Ghess testified that he worked with Balel Kaid and Yahya Aljomy.
48. According to Mr. Ghess, Balel Kaid set Mr. Ghess's work hours.
49. Mr. Ghess testified that he worked at the Parkin Food Mart, LLC, from April to December 2017, Monday through Sunday, from 6:00 p.m. to 11:00 p.m. on...
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