Soliman v. Sobe Miami, LLC
| Decision Date | 14 May 2018 |
| Docket Number | CASE NO. 16–24943–CIV–LENARD/GOODMAN |
| Citation | 312 F.Supp.3d 1344 |
| Parties | Aynour SOLIMAN, Plaintiff, v. SOBE MIAMI, LLC, and Thomas J. Donall, Defendants. |
| Court | U.S. District Court — Southern District of Florida |
Roderick Victor Hannah, Roderick V. Hannah, Esq., P.A., Plantation, FL, Pelayo M. Duran, Law Office of Pelayo Duran, PA, Miami, FL, for Plaintiff.
Jamie Blythe Dokovna, Becker & Poliakoff, West Palm Beach, FL, for Defendants.
ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (D.E. 46)
THIS CAUSE is before the Court on Defendants SOBE Miami, LLC d/b/a Palace Bar ("Palace Bar") and Thomas J. Donall's Motion for Summary Judgment, ("Motion," D.E. 46), filed November 30, 2017. Plaintiff Aynour Soliman filed a Response on December 22, 2017, ("Response," D.E. 50), to which Defendants filed a Reply on January 5, 2018, ("Reply," D.E. 54). Upon review of the Motion, Response, Reply, and the record, the Court finds as follows.
Plaintiff worked as a server at Palace Bar—a restaurant and bar located in Miami Beach, Florida—from February 2, 2015 through October 9, 2016. (Defs.' Facts ¶¶ 1–2.) Defendant Donall owns Palace Bar. (Id. ¶ 3.)
Servers at Palace Bar are paid an hourly wage, a portion of a 20% service charge that is added to every customer's bill, and tips paid by customers at their discretion. (Id. ¶¶ 8–9.) In 2015 and 2016, Florida's minimum wage was $8.05, (Id. ¶¶ 10–11); "time-and-a-half" was $12.08 for non-tipped employees, and $7.55 for tipped employees, (id. ¶ 12). According to Defendants, Plaintiff was paid $5.03 per hour, which represents the minimum wage reduced by the "tip credit" of $3.02 per hour. (Id. ¶¶ 10–11.) However, Plaintiff states that she was actually paid less than $5.03 per hour. (Pl.'s Facts ¶¶ 10–11.)
The 20% service charge is split among the staff as follows: 15% to the server, 1% to the host, 1% to the food runner, 1% to the bartender, and 2% split between the manager and housemen, with the manager receiving 1/3 of the 2% and the remainder going to the housemen. (Defs.' Facts ¶¶ 17–20.)
Although Defendants claim that the 20% service charge is referred to as "mandatory gratuity" or "auto gratuity," (Defs.' Facts ¶ 14), Plaintiff states that the service charge is a "suggested" gratuity, is not mandatory, and can be removed from the bill at the customer's discretion, (Pl.'s Facts ¶ 13). Plaintiff states that "customers had the right and ability to not pay the service charges and often" exercised that right. (Id. ¶ 15.)
Plaintiff's wages, less withholdings, were paid bi-weekly. (Id. ¶ 22.) While the servers were paid their portion of the service charge and tips at the end of their shifts, (id. ¶ 21), those monies were recorded on their paystubs, (id. ¶ 23). According to Plaintiff, the "reported tips" entry on her paystubs stated the full amount of the 20% service charge without reduction for payouts to other staff. (Pl.'s Facts ¶ 23.)
Plaintiff was paid a total of $45,353.92 in 2015, and a total of $44,620.69 in 2016; (Defs.' Facts ¶¶ 25–26); these amounts are reflected on the W–2 forms Palace Bar issued Plaintiff for 2015 and 2016, respectively, (id. ¶¶ 74–75).
Plaintiff's total compensation divided by the number of hours Plaintiff worked shows that Plaintiff consistently earned more than 1.5 times the minimum wage. (Id. ¶ 71.) According to Defendant's calculation, Plaintiff earned on average $26.00 per hour.2 (Id. ) Plaintiff's portion of the 20% service charge always constituted more than 50% of her pay. (Id. ¶ 72.)
On November 28, 2016, Plaintiff filed her Complaint against Defendants. (D.E. 1.) Count I alleges a minimum wage violation under the Fair Labor Standards Act ("FLSA") against both Defendants—specifically, Plaintiff alleges that Palace Bar was not entitled to take the tip credit and, therefore, her hourly wage fell below Florida's minimum wage. (Id. ¶¶ 18–23.) Count II alleges an overtime wage violation3 against both Defendants based on Palace Bar's failure to pay Plaintiff "time-and-a-half" for all hours worked over 40 hours per week. (Id. ¶¶ 24–27.) Count III alleges that Defendants violated 26 U.S.C. § 7434(a) by issuing Plaintiff fraudulent W–2 forms. (Id. ¶¶ 28–34.)
On February 14, 2017, Defendants filed their Amended Answer and Affirmative Defenses. (D.E. 29.) Therein, Defendants admitted the following allegations contained in the Complaint:
Among Defendants' Affirmative Defenses: are that (1) to the extent that it is ultimately determined that some hours of work were not properly paid to Plaintiff, such amounts were de minimis; and (2) Plaintiff is exempt from the FLSA's overtime wage provisions as a commissioned sales employee. (Answer at 5.)
On November 30, 2017, Defendants filed the instant Motion for Summary Judgment. (D.E. 46.) On March 14, 2018, the Parties appeared before the Court for Pretrial Conference, during which the Court heard argument regarding the instant Motion. (See D.E. 64.)
On a motion for summary judgment, the Court is to construe the evidence and factual inferences arising therefrom in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Summary judgment can be entered on a claim only if it is shown "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). In addition, under Federal Rule of Civil Procedure 56(f)(1), the Court may grant summary judgment for the non-moving party "[a]fter giving notice and a reasonable time to respond." Fed. R. Civ. P. 56(f)(1) ; see also Gentry v. Harborage Cottages–Stuart, LLLP, 654 F.3d 1247, 1261 (11th Cir. 2011). The Supreme Court has explained the summary judgment standard as follows:
[T]he plain language of [ Rule 56 ] mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be no genuine issue as to any material fact, since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial.
Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotation omitted). The trial court's function at this juncture 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 v. Liberty Lobby, Inc., 477 U.S. 242, 249–50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute about a material fact is genuine if the evidence is such that a reasonable fact-finder could return a verdict for the nonmoving party. Id. at 248, 106 S.Ct. 2505 ; see also Barfield v. Brierton, 883 F.2d 923, 933 (11th Cir. 1989).
The party moving for summary judgment "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 affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323, 106 S.Ct. 2548. Once the movant makes this initial demonstration, the burden of production, not persuasion, shifts to the nonmoving party. The nonmoving party must "go beyond the pleadings and by [its] own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’ " Id. at 324, 106 S.Ct. 2548 ; see also Fed. R. Civ. P. 56(c). In meeting this burden the nonmoving party "must do more than simply show that there is a metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). That party must demonstrate that there is a "genuine issue for trial." Id. at 587, 106 S.Ct. 1348. An action is void of a material issue for trial "[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party." Id.
Defendants argue that: (1) Plaintiff was a commissioned employee exempt from the FLSA's overtime wage provisions; (2) even if she was not exempt, summary judgment is still warranted on the overtime claim because Palace Bar was entitled to take the tip credit; (3) Donall was not an "employer" under the FLSA and therefore not subject to individual liability; and (4) Plaintiff's W–2s are correct and, therefore, there is no liability under 26 U.S.C. § 7434(a). (Mot. at 4–16.) Defendants do not explicitly argue that Palace Bar is entitled to summary judgment for the minimum wage claim in Count I of the Complaint; however, their several of their arguments appear to encompass Plaintiff's minimum wage claim. (See id. )
First, Defendants argue that Plaintiff was a commissioned employee exempt from the FLSA's overtime wage provisions pursuant to the...
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