Lange v. Tampa Food & Hosp., Inc.
| Decision Date | 22 February 2021 |
| Docket Number | Case No. 8:19-cv-34-CEH-CPT |
| Parties | JASON LANGE, Plaintiffs, v. TAMPA FOOD AND HOSPITALITY, INC., PLANT CITY HOSPITALITY, INC., DUKE'S BREWHOUSE, INC., TAMPA FOOD & ENTERTAINMENT, INC., and LOUIS MENDEL, Defendants. |
| Court | U.S. District Court — Middle District of Florida |
This matter comes before the Court on the parties' cross motions for summary judgment. Defendant Tampa Food & Entertainment, Inc. filed a Motion for Summary Judgment (Doc. 48), Plaintiff responded in opposition (Doc. 61), and Defendant replied (Doc. 68). Defendants Tampa Food and Hospitality, Inc.; Plant City Hospitality, Inc.; Duke's Brewhouse, Inc.; and Louis Mendel filed a Motion for Summary Judgment (Doc. 49), Plaintiff responded in opposition (Doc. 62), and Defendants replied (Doc. 66). Plaintiff Jason Lange filed a Motion for Partial Summary Judgment (Doc. 55), Defendants responded in opposition (Doc. 63), and Plaintiff replied (Doc. 67). Defendants seek summary judgment on all issues (Docs. 48, 49); Plaintiff seeks partial summary judgment on his status as an employee under the FLSA, the inapplicability of exemptions to him, and liquidated damages. Doc. 55.
The Court, having carefully considered the motions, being duly advised in the premises and for the reasons described herein, will grant in part and deny in part the parties' motions.
Defendant Tampa Food and Hospitality, Inc. is a private, for-profit corporation that was established January 1, 2016. Doc. 90, ¶ 2. The business operates Scores ("Scores"), a gentlemen's club located in Tampa, Florida. Id. Defendant Plant City Hospitality, Inc. is a private, for-profit corporation that was established on January 1, 2016 and operates Showgirls Men's Club ("Showgirls"), a gentlemen's club located in Plant City, Florida. Id. ¶ 3. Defendant Duke's Brewhouse, Inc., is a private, for-profit corporation that was established on March 24, 2015 that operates Duke's Brewhouse ("Duke's"), a sports bar and local eatery. Id. ¶ 4. Duke's focuses primarily on offering guests a wide selection of craft beers and live music. Id. Tampa Food & Entertainment, Inc., is a private, for-profit corporation that was established on August 4, 2010. Id. ¶ 5. The business operates Truth Lounge ("Truth"), a gentlemen's club located in Tampa. Id. Truth was purchased in or about 2016. Id. At all times relevant, Defendant LouisMendel ("Mendel") directly or indirectly exercised control over significant aspects of the day-to-day operations of Scores, Showgirls, Truth, and Duke's (collectively "Defendant businesses"), which are all separate companies. Id. ¶ 6. Mendel is the decision maker for the Defendant businesses. Id. ¶ 7. Mendel goes by "Duke." Doc. 51 at 4:17. At all relevant times, Defendants were enterprises covered by the FLSA, as defined by 29 U.S.C. § 203(r) and 203(s). Doc. 90, ¶ 23.
In or about 2005, Plaintiff Jason Lange ("Plaintiff") was introduced to Mendel. Id. ¶ 12. At the time, Plaintiff was operating a promotions company called Honey Hole Entertainment ("Honey Hole"), which specialized in promoting events at nightclubs throughout the Tampa Bay area. Id. ¶ 13. Shortly after being introduced to Mendel, Honey Hole began organizing and promoting events at some of Defendants' establishments. Id. ¶ 14. Although Lange does not recall whether Defendants paid him directly or through his company Honey Hole, he acknowledges that he worked as an independent contractor during this time frame. Id. ¶ 15.
Defendants hired or retained Plaintiff to do all of the Defendant businesses' social media and to possibly go out with the girls to different events. Id. ¶ 17. He worked for the Defendant businesses from approximately June 2015 until the end of October 2018.2 Id. ¶ 20. Plaintiff offered to serve as the "Director of Marketing," where he would perform, in part, the following services for Defendants: create, implement,and execute local content calendar for promotions; oversee the implementation of marketing strategy; manage a social media presence and direct programs to improve social media reputation and recognition; chaperone entertainers to and from events, tradeshows, and branding opportunities; continuously conduct analysis of competitive environment and consumer trends; coordinate events/bookings; develop and implement brand strategy; and provide strategy, development, and consulting to assist in brand awareness. Id. ¶ 18.
In his answers to Court interrogatories, Plaintiff states he worked on average 50 to 60 hours per week for Defendants and was paid "about $1,200 - $1,300 per week from the different entities" Doc. 17 at 1. He averages that he worked ten to twenty hours in overtime hours per week from January 2016 until November 2018. Id.
Plaintiff was paid a set weekly amount for the various duties he was required to perform. Doc. 90, ¶ 19. Plaintiff never received overtime compensation while working for Defendants. Id. ¶ 21. Plaintiff was paid either by cash or personal check to him personally for his social media marketing and miscellaneous duties. Id. ¶ 22. Plaintiff testified that he "wasn't hired to do social media work." Doc. 50 at 68:20. He was hired to do whatever Mendel wanted him to do: Id. at 68:20-24. Taxes were never deducted from his checks. Id. at 91:16-19. Plaintiff testified he received some 1099's after he was terminated from Defendants, but never during his employment. Id. at 93:3-8.
Until June 2016, Plaintiff was paid by one company, Scores, $750 per week for all the locations, but after June 2016, Plaintiff received payments directly from the different companies. Doc. 50 at 34:18-25. Summaries of payments made from each of the businesses to Plaintiff were attached to his deposition. Docs. 50-4, 50-5, 50-6, 50-7. From January 2016 until November 2018, Defendants paid Plaintiff $171,945. Id.
Regarding Showgirls, Plaintiff's responsibilities included social media marketing and digital marketing for the Showgirls' brand, attending some meetings, transporting files, sales records, petty cash, bringing things to the Showgirls' warehouse storage weekly or more often if needed. Doc. 50 at 26:20-28:5. Plaintiff was paid weekly from July 19, 2018 until October 29, 2018.3 Doc. 50-4. He received $100 weekly payments (except the first week was $200) for a total of $1,700.00. Id. He was sometimes given specific instructions on the social marketing such as a text from Mendel directing him to post an event on Facebook. Doc. 50 at 28:14-24. Sometimes he would give those tasks to Cheri Read ("Read") to perform, and Plaintiff or one of his companies would pay her for that. Id. at 28:25-29:19. Plaintiff did not punch a time clock or have a set schedule. Id. at 31:14-23. He did not work onsite at Showgirls. Id.
Plaintiff's specific duties for Duke's included social media marketing, social media creation, local SEO (search engine optimization) creation, verification of citations, attending meetings at various Duke's locations, and doing anything Mendel told him to do. Doc. 50 at 32:24-33:12. Read would assist him with the social media marketing for Duke's, and she would occasionally attend meetings when requested. Id. at 35:21-36:10. The summary of payments received by Plaintiff from Duke's Brewhouse Plant City reflects he was paid $100 per week from June 3, 2016 through October 14, 2016; from July 21, 2017 through December 29, 2017; and March 2, 2018 through October 29, 2018. Doc. 50-5. The amounts paid for this time frame total $7,685. Id. Plaintiff testified he was paid in cash. Doc. 50 at 33:21-25. He also was entitled to a weekly meal. Id.; Doc. 50-5 at 2. He did not punch a time clock and did not have a strict schedule. Doc. 50 at 36:24-37:6.
Plaintiff testified that when he first started working in January 2016, his responsibilities included "[p]romotions, marketing, advertising, outings, meetings, social media creations." Doc. 50 at 40:12-14. Until June 2016, he was working and getting paid by Scores for work he did for all of the companies. Id. at 39:17-40:1. Plaintiff could not estimate how much time in January 2016 was spent doing work for Scores versus one of the other establishments. Id. at 41:18-42:3. He did not have an assigned schedule that required him to check in at Scores. Id. at 16-20. Plaintiff would text Mendel numerous times a day and would receive his instructions from Mendel orone of the property managers. Id. at 40:24-41:1. Read would help with the social media for Scores. Id. at 45:5.
Plaintiff was paid $750 weekly by Tampa Food and Hospitality beginning in January 2016. Doc. 50-6. Starting July 19, 2016, he was paid $850 per week. Id. at 1. Beginning July 11, 2017, he was paid on average $900 per week until October 30, 2018.4 Id. at 2-4. The last payment he received was November 5, 2018 for $1,100. Id. at 4. The total of the payments for that time period equals $131,900. Id.
In or around February 2017, Mendel was having problems attracting good talent to serve as general manager for Truth Lounge. Doc. 90, ¶ 40. The first and second general managers were fired, but not by Plaintiff, for theft and performance issues, respectively. Id. ¶¶ 41, 42. Plaintiff approached Mendel and proposed serving as interim manager on a temporary basis, which he did for approximately six months until July 25, 2018.5 Id. ¶¶ 43, 45. After July 25, 2018, Plaintiff was no longer considered the interim general manager but worked as one of the day managers forTruth. Id. ¶ 45. As a day-manager, Plaintiff was required to continue handling Defendants'...
To continue reading
Request your trial