Gutierrez v. Galiano Enters. of Miami, Corp., Case No. 17-24081-Civ-TORRES

Decision Date07 June 2019
Docket NumberCase No. 17-24081-Civ-TORRES
PartiesOMELIA DEL ROSARIO GUTIERREZ, ANA M. CASTILLO, CECILA RAMIREZ BRITO, and all others similarly situated under 29 U.S.C. 216(b), Plaintiff, v. GALIANO ENTERPRISES OF MIAMI, CORP., d/b/a GALIANO RESTAURANT, SULTAN MAMUN, Defendants.
CourtU.S. District Court — Southern District of Florida

This matter is before the Court on Omelia Del Rosario Guiterrez's, Ana M. Castillo's, and Cecila Ramirez's (collectively, "Plaintiffs") motion for summary judgment against Galiano Enterprises of Miami d/b/a Galiano Restaurant ("Galiano Restaurant") and Sultan Mamun ("Mr. Mamun") (collectively, "Defendants"). [D.E. 65]. Defendants responded to Plaintiffs' motion on May 23, 2019 [D.E. 69] to which Plaintiffs replied on May 30, 2019. [D.E. 70]. Therefore, Plaintiffs' motion is now ripe for disposition. After careful review of the motion, response, reply, relevant authorities, and for the reasons discussed below, Plaintiffs' motion is DENIED.1


Plaintiff filed this action on November 7, 2017 for (1) overtime wages pursuant to the Fair Labor Standards Act ("FLSA"), (2) federal minimum wage violations, and (3) Florida minimum wage violations. [D.E. 1]. Plaintiffs allege that Galiano Restaurant is a company that regularly transacts business in Miami-Dade County and that Mr. Mamun is a corporate officer/manager of the corporation. Between approximately 2011 to 2017, Plaintiffs claim that they worked more than forty hours per week, but that Defendants failed to compensate them as required under the FLSA. Plaintiffs also allege that they worked for roughly two dollars per hour in violation of the minimum wage provisions of the FLSA and Florida law. Because Defendants failed to compensate Plaintiffs for overtime hours and paid Plaintiffs below the federal and state minimum wage, Plaintiffs request damages, attorneys' fees, court costs, and interest.


"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).

A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1). "On summary judgment the inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion." Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 597 (1986) (quoting another source).

In opposing a motion for summary judgment, the nonmoving party may not rely solely on the pleadings, but must show by affidavits, depositions, answers to interrogatories, and admissions that specific facts exist demonstrating a genuine issue for trial. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). The existence of a mere "scintilla" of evidence in support of the nonmovant's position is insufficient; there must be evidence on which the jury could reasonably find for the nonmovant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). "A court need not permit a case to go to a jury . . . when the inferences that are drawn from the evidence, or upon which the non-movant relies, are 'implausible.'" Mize v. Jefferson City Bd. Of Educ., 93 F.3d 739, 743 (11th Cir. 1996) (citing Matsushita, 475 U.S. at 592-94)).

At the summary judgment stage, the Court's function is not to "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249. In making this determination, the Court must decide which issues are material. A material fact is one that might affect the outcome of the case. See id. at 248 ("Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessarywill not be counted."). "Summary judgment will not lie if the dispute about a material fact is 'genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.

A. Principles of the FLSA

The FLSA requires employers to pay their employees at least one and a half times their regular wage for every hour worked in excess of forty per week. See 29 U.S.C. § 207(a)(1). Approximately seventy years ago, the Supreme Court stated that the "the prime purpose" of the FLSA was "to aid the unprotected, unorganized and lowest paid of the nation's working population; that is, those employees who lacked sufficient bargaining power to secure for themselves a minimum subsistence wage." Brooklyn Sav. Bank v. O'Neil, 324 U.S. 697, 707 n.18 (1945). In the decades since O'Neil, the Eleventh Circuit has followed that principle to counteract the inequality of bargaining power between employees and employers. See, e.g., Walthour v. Chipio Windshield Repair, LLC, 745 F.3d 1326, 1332 (11th Cir. 2014); Hogan v. Allstate Ins. Co., 361 F.3d 621, 625 (11th Cir.2004) (same); Lynn's Food Stores, Inc. v. United States, 679 F.2d 1350, 1352 (11th Cir.1982) ("Recognizing that there are often great inequalities in bargaining power between employers and employees, Congress made the FLSA's provisions mandatory."); Mayhue's Super Liquor Stores, Inc. v. Hodgson, 464 F.2d 1196, 1197 n.1 (5th Cir. 1972).

With these principles in mind, a plaintiff who has worked overtime without pay may bring a private FLSA action for damages. See 29 U.S.C. § 216(b). Anunpaid-overtime claim has two elements: (1) an employee worked unpaid overtime, and (2) the employer knew or should have known of the overtime work. See Allen v. Bd. of Pub. Educ. for Bibb Cnty., 495 F.3d 1306, 1314-15 (11th Cir. 2007). "Although a FLSA plaintiff bears the burden of proving that he or she worked overtime without compensation, . . . [i]t is the employer's duty to keep records of the employee's wages, hours, and other conditions and practices of employment." Id. "[I]f an employer has failed to keep proper and accurate records and the employee cannot offer convincing substitutes," then "an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference." Id. at 1315-16 (quotation marks omitted).

B. Whether Mr. Mamun was Plaintiffs' Employer

The first issue is whether Plaintiffs are entitled to summary judgment on whether Mr. Mamun was their "employer" under the FLSA. An individual cannot be held "liable for violating the overtime provision of the FLSA unless he is an 'employer' within the meaning of the Act." Alvarez Perez v. Sanford-Orlando Kennel Club, Inc., 515 F.3d 1150, 1160 (11th Cir. 2008) (citing 29 U.S.C. § 207(a)(1); Donovan v. Grim Hotel Co., 747 F.2d 966, 971 (5th Cir. 1984)). The FLSA broadly defines an employer as "any person acting directly or indirectly in the interest of an employer in relation to an employee." 29 U.S.C. § 203(d). Whether an individual falls within this definition "does not depend on technical or 'isolated factors butrather on the circumstances of the whole activity.'" Hodgson v. Griffin & Brand of McAllen, Inc., 471 F.2d 235, 237 (5th Cir.1973) (quoting Rutherford Food Corp. v. McComb, 331 U.S. 722, 730 (1947)). "'[A] corporate officer with operational control of a corporation's covered enterprise is an employer along with the corporation, jointly and severally liable under the FLSA for unpaid wages.'" Patel v. Wargo, 803 F.2d 632, 637-38 (11th Cir. 1986) (quoting Donovan v. Agnew, 712 F.2d 1509, 1511 (1st Cir. 1983)). "'Operational control means management of day-to-day business functions such as employee compensation, 'direct responsibility for the supervision' of employees, or general operations.'" Torres v. Rock & River Food Inc., 244 F. Supp. 3d 1320, 1332 (S.D. Fla. 2016) (quoting Baltzley v. Berkley Grp., Inc., 2010 WL 3505104, at *2 (S.D. Fla. Sept. 3, 2010) (quoting Patel, 803 F.2d at 637-38)).

Although Patel recognized personal liability for corporate officers, it "did not purport to limit personal liability to officers, and the Act's broad definition of 'employer' does not admit of such a limitation." Lamonica v. Safe Hurricane Shutters, Inc., 711 F.3d 1299, 1310 (11th Cir. 2013). Indeed, as a general matter, "non-officers may be held personally liable under FLSA." Id. at 1313. In clarifying "the degree and type of operational control that will support individual liability under FLSA," id., the Eleventh Circuit explained in Lamonica that "[a] supervisor's ownership interests in the corporation and control over the corporation's day-to-day functions are relevant to [whether the individual is an employer] because they are indicative of the supervisor's role in causing the violation." Id. However, the "primary concern is the supervisor's role in causing the FLSA violation" and "tosupport individual liability, there must be control over 'significant aspects of the company's day-to-day functions, including compensation of employees or other matters in relation to an employee.'" Id. at 1314 (quoting Alvarez Perez, 515 F.3d at 1160).

In the Eleventh Circuit, courts look to the "economic reality" of the situation to determine whether an individual is an employer for purposes of the FLSA. The economic reality test looks to "whether the...

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