Gonzalez v. Batmasian
| Decision Date | 29 March 2017 |
| Docket Number | CASE NO. 16–cv–81696–MIDDLEBROOKS |
| Citation | 246 F.Supp.3d 1339 |
| Parties | Patricia GONZALEZ, and Lesha Rosario, Plaintiffs, v. James BATMASIAN, and Marta Batmasian, Defendants. |
| Court | U.S. District Court — Southern District of Florida |
Chris Kleppin, Chelsea A. Lewis, Glasser & Kleppin, P.A., Plantation, FL, for Plaintiffs.
Roderick Flynn Coleman, Coleman & Associates, George Louis Sigalos, Simon & Sigalos, LLP, Boca Raton, FL, for Defendants.
ORDER DENYING CROSS–MOTIONS FOR SUMMARY JUDGMENT
THIS CAUSE comes before the Court on Cross–Motions for Summary Judgment. On February 27, 2017, Plaintiffs Patricia Gonzalez ("Gonzalez") and Lesha Rosario ("Rosario") (collectively, "Plaintiffs") filed a Motion for Summary Judgment ("Motion for Summary Judgment"). (DE 54). Defendants James Batmasian and Marta Batmasian filed a Response ("Defendants' Response") on March 13, 2017 (DE 72), to which Plaintiffs replied on March 15, 2017 (DE 84). In Defendants' Response, they did not expressly refute each paragraph of Plaintiffs' Statement of Facts, and on March 20, 2017, Defendants filed a Motion to File Response to Plaintiffs' Statement of Facts Out of Time ("Motion to File Untimely Response"). (DE 98).
On February 27, 2017, Defendants filed a Motion for Summary Judgment as to the Exempt Status of Plaintiff Patricia Gonzalez ("Partial Motion for Summary Judgment") (DE 48), to which Gonzalez responded on March 13, 2017 (DE 71). Defendants did not file a reply.
Defendants also filed various motions to strike portions of Plaintiffs' filings. On March 13, 2017, Defendants filed a Motion to Strike Declaration of Patricia Gonzalez ("Motion to Strike Declaration") (DE 70), arguing that portions of Gonzalez's Declaration conflicted with her deposition testimony. Plaintiffs filed a response on March 16, 2017. (DE 87).
On March 16, 2017, Defendants filed an Amended Motion to Strike Portions of Plaintiffs' Statement of Undisputed, Material facts ("Motion to Strike SOF") (DE 86), moving to strike all references in Plaintiffs' Statement of Facts to: (1) depositions taken in another proceeding, (2) portions of James Baker's Declaration, and (3) Rosario's Declaration. On March 17, 2017, Plaintiffs filed a response. (DE 92),
On March 20, 2017, Defendants filed a Motion to Strike Portions of Plaintiffs' Statement of Material Facts in Opposition to Defendants' Motion for Summary Judgment ("Motion to Strike Responsive SOF") (DE 99), moving to strike all references in Plaintiffs' Responsive Statement of Facts to: (1) Gonzalez's Second Declaration, and (2) portions of James Barker's Second Declaration.
James Batmasian and Marta Batmasian are employers within the meaning of the FLSA, who acquire and manage residential and commercial real estate. (Defendants' Response, DE 72 at 2 (); Defendants' Statement of Facts ("DSOF") ¶ 3; Plaintiffs' Responsive Statement of Facts ("PRSOF") ¶ 3).
Plaintiff Gonzalez worked for Defendants from 2005 until July 23, 2015. (Plaintiffs' Statement of Facts ("PSOF"), DE 53 ¶ 4). The Parties agree that Gonzalez worked as a commercial leasing agent, but dispute whether she also worked as a property manager. (DSOF ¶ 2; PRSOF ¶ 2). The Parties dispute the scope of Gonzalez's duties, but agree that her duties included showing vacant units to prospective tenants, preparing lease space for new tenants, dealing with "tenant issues," and attending meetings. (DSOF ¶ 8; PRSOF ¶ 8). The Parties dispute whether Gonzalez was paid on a salaried basis. (DSOF ¶ 6; PRSOF ¶ 6; PSOF ¶ 23).
Plaintiff Rosario worked for Defendants from December 2010 until December 2012 as a legal assistant. (PSOF ¶ 4). Defendants concede that Rosario was an hourly employee, entitled to overtime compensation. (Defendants' Response at 2). The Parties dispute whether Rosario worked unpaid overtime hours. (PSOF ¶ 38; Defendants' Response at 2).
On October 9, 2016, Plaintiffs filed a Complaint, each alleging a cause of action for failure to pay overtime wages under 29 U.S.C. § 216(b) of the Fair Labor Standards Act ("FLSA"). (DE 1).
"The court shall grant 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." Fed. R. Civ. P. 56(a). The movant "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed. R. Civ. P. 56(c)(1)(A) ).
Where the non-moving party bears the burden of proof on an issue at trial, the movant may simply "[point] out to the district court that there is an absence of evidence to support the nonmoving party's case." Id. at 325, 106 S.Ct. 2548. After the movant has met its burden under Rule 56(c), the burden shifts to the non-moving party to establish that there is a genuine issue of material fact. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). "The non-movant's response must be tailored to the method by which the movant carried its initial burden." Hinson v. United States, 55 F.Supp.2d 1376, 1380 (S.D. Ga. 1998), aff'd, 180 F.3d 275 (11th Cir. 1999). "If the movant presented evidence affirmatively negating a material fact, the non-movant ‘must respond with evidence sufficient to withstand a directed verdict motion at trial on the material fact sought to be negated.’ " Id. (citing Fitzpatrick v. City of Altanta, 2 F.3d 1112, 1116 (11th Cir. 1993) ). "If the movant demonstrated an absence of evidence on a material fact, the non-movant must either show that the record contains evidence that was ‘overlooked or ignored’ by the movant, or ‘come forward with additional evidence sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency.’ " Id. (citing Fitzpatrick, 2 F.3d at 1116 )).
When the moving party bears the burden of proof at trial, "the moving party must show that, on all the essential elements of its case on which it bears the burden of proof at trial, no reasonable jury could find for the nonmoving party." United States v. Four Parcels of Real Prop, in Greene & Tuscaloosa Ctys. in State of Ala., 941 F.2d 1428, 1438 (11th Cir. 1991) (internal citation omitted). "If the moving party makes such an affirmative showing, it is entitled to summary judgment unless the nonmoving party, in response, comes forward with significant, probative evidence demonstrating the existence of a triable issue of fact." Id. (internal quotations and citations omitted).
Defendants argue that Gonzalez's overtime claim fails because she qualifies for the administrative and executive exemptions from overtime compensation.1 See 29 U.S.C. § 213(a)(1). Gonzalez asserts that she was not paid on a salaried basis because her salary was subject to reduction based on the quantity and quality of work she performed.
The FLSA requires an employer to pay time-and-a-half overtime compensation to any employee who works more than 40 hours per workweek, unless the employee is exempt from overtime compensation. 29 U.S.C. § 216(b). Section 213(a)(1) exempts "any employee employed in a bona fide executive, administrative, or professional capacity." 29 U.S.C. § 213(a)(1).
To qualify for any of these exemptions, an employee must be compensated on a salary basis. 29 C.F.R. § 541.600. "An employee will be considered to be paid on a ‘salary basis' within the meaning of these regulations if the employee regularly receives each pay period on a weekly, or less frequent basis, a predetermined amount constituting all or part of the employee's compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed ." 29 C.F.R. § 541.602 (emphasis added). "If the facts demonstrate that the employer has an actual practice of making improper deductions, the exemption is lost during the time period in which the improper deductions were made for employees in the same job classification working for the same managers responsible for the actual improper deductions." 29 C.F.R. § 541.603.
An employee is "subject to" improper deductions "when employees are covered by a policy that permits disciplinary or other deductions in pay as a practical matter." Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997) (internal quotations omitted). "That standard is met ... if there is either an actual practice of making such deductions or an employment policy that creates a significant likelihood of such deductions." Id. (internal quotations omitted). Pursuant to the Code of Federal Regulations:
An actual practice of making improper deductions demonstrates that the employer did not intend to pay employees on a salary basis. The factors to consider when determining whether an employer has an actual practice of making improper deductions include, but are not limited to: the number of improper deductions, particularly as compared to the number of employee infractions warranting discipline; the time period during which the employer made improper deductions; the number and geographic location of employees whose salary was improperly reduced; the number and geographic location of managers responsible for taking the improper deductions; and whether the employer has a clearly communicated policy permitting or prohibiting improper deductions.
29 C.F.R. § 541.603. While "actual deductions" are not required, in their absence courts "require[ ] a clear and particularized policy—one which effectively communicates that deductions will be...
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