Ott v. Chacha in Art LLC

• Decision Date: 14 December 2020
• Docket Number: Civil Case No. 18-cv-01135-LTB-GPG
• Citation: 506 F.Supp.3d 1133
• Parties: Jasper OTT, Plaintiff, v. CHACHA IN ART LLC, d/b/a Cha Cha Gallery, Veronique Sabatina Eugenie Charlotte Lea Souki, an individual, and Charif D. Souki, an individual, Defendants.
• Court: U.S. District Court — District of Colorado

506 F.Supp.3d 1133

Jasper OTT, Plaintiff,

v.CHACHA IN ART LLC, d/b/a Cha Cha Gallery, Veronique Sabatina Eugenie Charlotte Lea Souki, an individual, and Charif D. Souki, an individual, Defendants.

Civil Case No. 18-cv-01135-LTB-GPG

United States District Court, D. Colorado.

Signed December 14, 2020

Penn Anderson Dodson, Anderson Dodson, P.C., New York, NY, for Plaintiff.

Benjamin Bernell, Dillon Ferguson, Pillsbury Winthrop Shaw Pittman, LLP, Austin, TX, Vance Orlando Knapp, Armstrong Teasdale, LLP, Denver, CO, for Defendants ChaCha in Art LLC, Charlotte Lena Souki Veornique Sabatina Eugene.

Dillon Ferguson, Pillsbury Winthrop Shaw Pittman, LLP, Austin, TX, Vance Orlando Knapp, Armstrong Teasdale, LLP-Denver, Denver, CO, for Defendant Charif D. Souki.

ORDER

LEWIS T. BABCOCK, JUDGE

This matter is before me on cross motions for summary judgment. Plaintiff's Motion for Summary Judgment is filed by Jasper Ott, in which he seeks judgment in his favor on his claims, as well as on the counterclaims filed by Defendant ChaCha in Art LLC, d/b/a Cha Cha Gallery (the "Gallery"). [Doc #103 ] Defendants’ Motion for Summary Judgment is filed by the Gallery, as well as by Veronique Sabatia Eugenie Charlotte Lea Souki and Charif D. Souki, as individuals, seeking summary judgment in their favor and against Plaintiff on his claims. [Doc #102 ] Both motions have been fully briefed. Oral arguments would not materially assist me in my determination. After consideration of the parties’ briefs, and for the reasons stated, I GRANT Defendants’ request for summary judgment in its favor on Plaintiff's claims, and I DISMISS WITHOUT PREJUDICE the Gallery's counterclaims.

I. BACKGROUND

Plaintiff worked at the Gallery – a "downtown Aspen high-end art gallery" owned by Defendant ChaCha In Art LLC – from January 10, 2016 until he was terminated on February 2, 2018. It is undisputed that while employed at the Gallery Plaintiff's salary was $3,000 per month, regardless of how many hours he worked over 40 hours a week, plus occasional additional sales commissions and use of an apartment located above the Gallery. [Doc #103-8 pg. 41]

Defendant Veronique Sabatina Eugenie Charlotte Lea Souki ("Ms. Souki") is the founder of the Gallery and, Plaintiff contends, actively participated in the business of the Gallery and was his day-to-day boss and supervisor. Defendant Charif D. Souki ("Mr. Souki") is married to Ms. Souki, and is the owner of ChaCha in Art LLC and of the Gallery. Defendants maintain that Mr. Souki has the authority to hire and fire employees of the Gallery, and it is undisputed that he terminated Plaintiff on February 2, 2018.

The parties disagree as to the nature of Plaintiff's job while he was employed at the Gallery. Plaintiff asserts that he was essentially a "shop clerk" and that his duties were to open and be physically present in the Gallery, greet and talk to the guests about the art, maintain the Gallery, and process sales. [Doc #103 pg. 11] Defendants contend that Plaintiff held the job and title of General Manager, and although he did not actively manage other employees, he ran the Gallery and oversaw its operations. [Doc #102 pg. 4]

After he was terminated, Plaintiff filed this lawsuit in which he asserted various wage and overtime compensation claims against Defendants pursuant to the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 201, et seq. (the "FLSA"), the Colorado Wage Claim Act, § 8-4-101, et seq. , and the Colorado Minimum Wage Act, C.R.S. § 8-6-101, et seq. Plaintiff also raised a claim for invasion of privacy based on his allegation that Defendants used a photograph of him in its advertising for the Gallery without Plaintiff's knowledge or consent. [Doc #1] The Gallery filed counterclaims against Plaintiff for breach of duty and interference with contract. [Doc #8] Plaintiff subsequently filed an amended complaint in which he raised additional claims of retaliation (based on the filing of baseless counterclaims) [Doc #21], and, in response, the Gallery filed additional counterclaims for unjust enrichment and forfeiture of compensation/disgorgement. [Doc #22]

The parties, in their respective motions at issue here, both seek summary judgment in their favor, as a matter of law, on Plaintiff's claims. [Docs #102 & #103] In addition, Plaintiff seeks judgment against the Gallery on its counterclaims. [Doc #103 pg. 23]

II. STANDARD OF REVIEW

The purpose of a summary judgment motion under Fed.R.Civ.P. 56 is to assess whether trial is necessary. White v. York Int'l Corp. , 45 F.3d 357, 360 (10th Cir. 1995). Fed.R.Civ.P. 56(c) provides that summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions, or affidavits show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. The non-moving party has the burden of showing that there are issues of material fact to be determined. Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

A party seeking summary judgment bears the initial responsibility of informing the court of the basis for its motion, and identifying those portions of the pleadings, depositions, interrogatories, and admissions on file together with affidavits, if any, which it believes demonstrate the absence of genuine issues for trial. Id. at 323, 106 S.Ct. 2548 ; Mares v. ConAgra Poultry Co., Inc. , 971 F.2d 492, 494 (10th Cir. 1992). Once a properly supported summary judgment motion is made, the opposing party must respond with specific facts showing the existence of a genuine factual issue to be tried.

Otteson v. United States , 622 F.2d 516, 519 (10th Cir. 1980) ; Fed.R.Civ.P. 56(e). A dispute is "genuine" if the issue could be resolved in favor of either party. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ; Farthing v. City of Shawnee , 39 F.3d 1131, 1135 (10th Cir. 1994). A fact is "material" if it might reasonably affect the outcome of the case. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The fact that the parties have filed cross-motions for summary judgment does not necessarily indicate that summary judgment is proper. See Atlantic Richfield Co. v. Farm Credit Bank of Wichita , 226 F.3d 1138, 1148 (10th Cir. 2000) ; James Barlow Family Ltd. Partnership v. David M. Munson, Inc. , 132 F.3d 1316, 1319 (10th Cir. 1997). Cross-motions for summary judgment are to be treated separately as the denial of one does not require the grant of another. Buell Cabinet Co. v. Sudduth , 608 F.2d 431, 433 (10th Cir. 1979).

III. PLAINTIFF'S CLAIMS

A. Wage Claims

Plaintiff seeks summary judgment in his favor on his claims against Defendants for failure to pay him overtime, because he asserts that the undisputed facts reveal that he was not an exempt employee under the FLSA's administrative exemption. Defendants assert that they are entitled to judgment in their favor because the facts are undisputed that Plaintiff was, in fact, a bona fide administrative employee as defined by the FLSA, and thus was exempt from its overtime mandates.

The FLSA requires employers to pay overtime compensation to employees who work more than 40 hours in a week, 29 U.S.C. § 207(a), but the FLSA exempts many categories of employees from this requirement. As relevant here, overtime pay does not apply with respect to "any employee employed in a bona fide executive, administrative, or professional capacity ...". 29 U.S.C. § 213(a)(1). The term "employee employed in a bona fide administrative capacity" means any employee: 1) who meets a threshold salary level; 2) whose "primary duty is the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer's customers;" and 3) whose "primary duty includes the exercise of discretion and independent judgment with respect to matters of significance." 29 C.F.R. § 541.200.

Because it is undisputed that he met the salary threshold, the initial question in this case is a factual determination of Plaintiff's primary duty while employed at the Gallery. See Maestas v. Day & Zimmerman, LLC , 664 F.3d 822, 826 (10th Cir. 2012) (when assessing whether an employee falls under the administrative exemption to FLSA's overtime protections, a court must first determine the employee's primary duty, and then determine whether that primary duty disqualifies the employee from FLSA's protections); see also Foxworthy v. Hiland Dairy Co. , 997 F.2d 670, 672 (10th Cir. 1993) (indicating that "the district court must first make findings as to certain factors, and then apply a legal standard"). A primary duty is "the principal, main, major or most important duty that the employee performs." 29 C.F.R. § 541.700(a). Factors to consider when determining an employee's primary duty include the relative importance of the exempt duties as compared with other types of duties; the amount of time spent performing exempt work; the employee's relative freedom from direct supervision; and the relationship between the employee's salary and the wages paid to other employees for the kind of nonexempt work performed by the employee. 29 C.F.R. § 541.700(a) ; see also Koehler v. Freightquote.com, Inc. , 2015 WL 4203962 (D. Kan. July 10, 2015) (unpublished). "Time spent performing each duty is a ‘useful guide’ in examining which duty is primary, but there is no requirement that an exempt executive employee spend more than half her time on managerial tasks." Maestas v. Day, supra , 664 F.3d at 827 (quoting 29 C.F.R. § 541.700(b) ).

In this case both parties’ evidence supports a determination that Plaintiff's primary duty at the Gallery was to run its day-to-day operations. Mr. Souki testified that he hired Plaintiff as the Gallery's General Manager on a short term basis, despite his lack of experience as a favor to a friend, in...