Markov et al v. Golden Isles Cruise Lines, Inc. et al, No. 2:2015cv00018 - Document 40 (S.D. Ga. 2016)
Court Description: ORDER granting in part and denying in part 10 Motion for Summary Judgment. Judgment shall be entered in favor of Defendant GICL and they are terminated as a party in this case. Signed by Judge J. Randal Hall on 3/21/16. (cmr)
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Markov et al v. Golden Isles Cruise Lines, Inc. et al Doc. 40 IN THE UNITED FOR THE STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA BRUNSWICK DIVISION STOYAN MARKOV, GERRY G. * SEBASTIAN, and ZORICA ZUKIC, individually and on behalf * of other similarly situated persons, and BILLY KIRKLAND, * * Plaintiffs, CV 215-018 * v. * GOLDEN ISLES CRUISE LINES, INC.,* and APEX ENTERTAINMENT * MANAGEMENT LLC, * * Defendants. * ORDER Presently before the Court is Defendants' for summary judgment (Doc. 10) . For converted motion the reasons below, Defendants' motion is GRANTED IN PART and DENIED IN PART. I, BACKGROUND The present dispute arises out of Plaintiffs' employment as casino dealers aboard the Emerald Princess II ("EPII"), a casino ship operated out of the Port of Brunswick, Georgia. (Dyer Aff., Doc. 21-1, a 3.) While working on the EPII, employed by Defendant Golden Isles Cruise Lines, Plaintiffs were Inc. ("GICL"), the company that owns the EPII, until December 23, 2012. Markov Decl. , Doc. 23, St 2.) Thereafter, Plaintiffs (Id. ; were Dockets.Justia.com employed by company Apex that regardless dealers, games, Entertainment furnishes of the deal dealers particular performed the cards, shuffle through for primary cards, Meanwhile, cruises a.m. per to day. Thursday, 4:15 deal p.m., dice, the The day and the lasted nights when Plaintiffs Thursday, shifts Doc. on 5.75 hours, they would could not Yet, as casino operate casino count EPII would have to 12:15 p.m. chips, and for than one from 6:30 and the usual Thus, except more from 10:30 cruise would last (Id.) cruise the EPII would have two 6:30 Plaintiffs' shifts Friday extend to 6.75 hours. work one (Markov Decl. cruise would last night to 12:15 p.m. on Sunday. generally the (Id.) Plaintiffs, p.m. to 1:15 a.m. on Fridays and Saturdays p.m. ("Apex"), EPII. duties: Friday through Sunday, (Id. ) LLC (Dyer Aff. I 13.) each night spanning from 6:30 p.m. S[ 3.) the employer, same provide customer service. Monday Management and Saturday (Id.) shift While Monday through it was not uncommon for Plaintiffs to work multiple Friday, Saturday, or Sunday. (Defs.' Comp. Ex. 2, 21-9 through 21-12.) For their efforts, Plaintiffs received between $20 and $35 per shift plus tips earned in accordance with Defendants' pooling arrangement. contend that compensation this in (Dyer Aff. arrangement violation of SI 18.) left the Fair However, them with Labor tip- Plaintiffs inadequate Standards Act pFLSA"), 29 U.S.C. § et 201 seq. First, employees received part of the tip pool, they were Plaintiffs not paid argue that minimum the tip wage pool because management Plaintiffs assert that compensation. did not Second, provide them with compensation for overtime hours worked. With these contentions, complaint on January 29, In response, (Doc. 10.) reliance their judgment. Defendants On to (Doc. v. Wainwright, outside dismiss 19.) filed 30, 2015, the Thereafter, 772 F.2d 822, motion because the pleadings, into the seeking redress under filed a pre-answer December on matters motion 2015, Plaintiffs instant the dismiss. Defendants' Court converted for summary in compliance with Griffith 825 (11th Cir. 1985) the Clerk provided Plaintiffs the FLSA. to of motion instant with notice of (per curiam), the motion, the summary judgment rules, the right to file affidavits or other materials in opposition, and the consequences of default. (Doc. Defendants filed a supplemental brief (Doc. 20.) Subsequently, 22), Plaintiffs filed two responses (Docs. 23, 26), Defendants filed a reply (Doc. 29), and Plaintiffs filed a sur-reply (Doc. 34) . Consequently, Court's consideration. Defendants' motion is now ripe for the II, Defendants' motion DISCUSSION for summary judgment will be granted only if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Civ. P. could 56(a). affect In this the substantive law. 248 (1986) . Court must context, outcome of facts the are suit "material" under Anderson v. Liberty Lobby, the non-moving party, facts in the light Matsushita Elec. most Indus. the Inc., In evaluating the contentions of view Fed. R. if they governing 477 U.S. 242, the parties, the favorable the Co. v. to Zenith Radio Corp. , 475 U.S. 574, 587 (1986), and must draw "all justifiable inferences favor," Real in Prop., [its] 941 F.2d 1428, United 1437 States v. (11th Cir. Four 1991) Parcels of (en banc) (internal punctuation and citations omitted). Initially, the moving party bears the burden and must show the Court, by reference to materials on file, motion. How Celotex Corp. to carry v. Catrett, 477 U.S. the basis for the 317, this burden depends on who bears proof at trial. 1115 (11th Cir. Fitzpatrick v. City of Atlanta, 1993). 323 (1986). the burden of 2 F.3d 1112, When the non-movant has the burden of proof at trial, the movant may carry the initial burden in one of two ways — by negating an essential element of the nonmovant's case or by showing that there is no evidence to prove a fact necessary to the non-movant's case. See Clark v. Coats & Clark, Inc., Adickes v. 477 U.S. S.H. its F.2d 604, Kress 317) . opposition, met 929 & 606-08 Co., 398 (11th Cir. U.S. 144 1991) (1970) (explaining and Before evaluating the non-movant's Celotex, response in the Court must first consider whether the movant has initial burden of showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of (11th Cir. law. Jones v. 1997) (per curiam). the non-movant cannot meet Clark, City of Columbus, 120 that 248, 254 A mere conclusory statement that the burden at trial is insufficient. 929 F.2d at 608. If — and only if — the movant carries its the F.3d non-movant there is may avoid summary indeed summary judgment." proof at trial, a Id. material judgment by issue of fact initial burden, *demonstrat[ing] that precludes When the non-movant bears the burden of the non-movant must tailor its response to the method by which the movant carried its initial burden. If the movant presents evidence affirmatively negating a material fact, the non-movant withstand a "must respond directed verdict fact sought to be negated." with motion evidence at trial Fitzpatrick, sufficient on the to material 2 F.3d at 1116. If the movant shows 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 deficiency." at trial at relying burden by Id. on based 1117. on The the non-movant the pleadings or by allegations contained in the complaint. F.2d 1032, 1033-34 (11th Cir. alleged evidentiary cannot carry repeating conclusory See Morris v. 1981). Instead, its the Ross, 663 non-movant must respond with affidavits or as otherwise provided by Federal Rule of Civil Procedure 56. A. Defendants Preliminary Matters contend that the Court's consideration of the merits should be precluded based on the following six arguments. First, the statute claims against initiated. Plaintiff of limitations Defendant Second, Kirkland's GICL to mandatory arbitration. excludes Plaintiffs expired pursuant claims to the sufficient evidencing not named in Plaintiffs' Plaintiffs' this employment suit was contract, Defendant Apex are subject minimum Fourth, enterprises engaged in commerce. to the FLSA's seamen's exemption protections of the FLSA. information before his against Third, from applicable wage and overtime Plaintiffs have not produced that Defendants were Fifth, Plaintiff Kirkland was complaint. Sixth, Plaintiffs refused to accept reasonable compensation for their overtime claims. 1. Under the FLSA, minimum wage or U.S.C. § years. the general statute of limitations for any overtime compensation claim is 255(a). "willful," Statute of Limitations then However, the if statute the of limitations two employer's years. 29 violation was extends to three Id. To establish that a violation was willful, "the employee must prove by a preponderance of the evidence that his employer either knew that its conduct was prohibited or showed reckless disregard about whether it was." Morgan v. Family Dollar Stores, Inc. , 551 F.3d 1233, 1280 (11th Cir. marks and citation omitted). 2008) (internal quotation "Reckless disregard," according to federal regulations, is the "xfailure to make adequate inquiry into whether conduct is in compliance with the [FLSA].'" Id. (quoting 5 C.F.R. § 551.104). In the case at hand, viewing the evidence in the light most favorable to Plaintiffs, Plaintiffs Markov, 2012.1 Defendant Sebastian, GICL's 6-13.) Thus, when Plaintiffs filed suit on January 29, 2015, the FLSA's limitations their claims had already run. to each of general against Wanzo Aff., statute of Defendant GICL Accordingly, to survive Defendants' motion for 1 Plaintiff Zukic was never employed by Defendant GICL. 26-3; of and Kirkland ended on December 23, (Wanzo Aff., Doc. 21-7, M as employment Doc. against Defendant GICL. 21-7.) Therefore, (Zukic Decl., Doc. she has no viable FLSA claim summary judgment, Plaintiffs must present enough evidence to demonstrate a genuine dispute regarding whether Defendant GICL's FLSA violations were willful. Based their upon the burden. record at Plaintiffs indicating that violations, nor Defendant GICL Defendant have have GICL they failed to hand, Plaintiffs not not any evidence presented actually presented have knew of evidence make an adequate the alleged suggesting that inquiry into whether its tip-pooling arrangement was consistent with the FLSA. result, Plaintiffs' claims against met Defendant GICL As a may not proceed. For the same arising against January 28, Markov and December 31, reasons, Defendant 2013, Billy 2012, all but two of Plaintiffs' Apex between December are barred. Kirkland's 24, claims 2012, and The two exceptions are Stoyan overtime through January 6, claims for the week of 2013. The time records submitted by Defendants - indicating that Plaintiffs Markov and Kirkland worked more than forty hours during this week - are enough to produce a genuine dispute as to whether Defendant Apex knowingly violated the FLSA. 2. Arbitration Agreement Considered to be a xx xcongressional declaration of a liberal federal policy favoring arbitration agreements,'" Arbitration Act pFAA"), the Federal 9 U.S.C. §§ 1 et seq. , "was enacted in 8 1925 to reverse arbitration." 1359, F. 1367 Supp. Caley 2d 1313, so, longstanding v. (11th Cir. Energy Homes, do the Gulfstream 2005); 1318 judicial Aerospace Scurtu v. (S.D. Ala. Inc. , 305 F.3d 1268, hostility Corp., toward 428 F.3d Int'l Student Exch., 2007) (quoting 1273 "[t]he FAA generally provides Davis (11th Cir. 523 v. S. 2002)). To for the enforceability of xa contract evidencing a transaction involving commerce,'" which generally includes all contracts of employment except involving "transportation workers." Circuit City Stores, Adams, 532 U.S. 105, 119 (2001); Caley, F.3d 428 those Inc. v. at 1367 (quoting 9 U.S.C. § 2). "Further, courts have consistently found that claims arising under federal statutes may be the subject of arbitration Caley, agreements and 428 F.3d at 1367 are enforceable under the FAA." (internal quotation marks and citation omitted). Once agreement a is court determines part of a that covered the applicable "contract, arbitration transaction, or refusal," the written agreement will be "valid, irrevocable, and enforceable, save upon grounds as exist at law or in equity for the revocation of the contract." 9 U.S.C. § 2. While "one of the purposes of the FAA is to give arbitration agreements the same force and effect as other contracts," governs arbitrate whether exists." an enforceable Caley, 428 "state law generally contract F.3d at or 1367-68. agreement to "Thus, in determining parties, that whether governs the formation policy consideration.'" 498 In binding agreement courts apply the contract law of 'federal 493, a favoring Id. (6th Cir. this case, of (quoting Cooper v. between the the particular state contracts." arbitration arose Id. Even ... MRM Inv. "the taken is so, into Co., 367 F.3d 2004)). Defendants argue that Plaintiff Kirkland's claims against Defendant Apex should be dismissed because they are subject argument agreement to mandatory arbitration. on the within following Defendants from provisions Plaintiff Kirkland's base their the arbitration at-will employment contract with Defendant Apex: Any dispute, liability, loss, or claim, in any way arising from, in connection with, or related whatsoever to this Agreement and/or [Kirkland's] employment with [Apex] shall be resolved exclusively through binding arbitration ... in accordance with the rules Association. of the American Arbitration [Kirkland] further agrees and acknowledges that he . . . voluntarily and knowingly waives any right he . . . has to a jury trial of any such claim arising from or in connection with this Agreement or [Kirkland's] employment with [Apex]. (Wanzo Aff., Ex. D, Doc. 21-8.) In response, Plaintiff Kirkland argues that this arbitration agreement is invalid because it is an unconscionable contract of adhesion. at 21.) (Pis.' Resp., Doc. 23, In the alternative, Plaintiff Kirkland argues that, if the agreement is enforceable, it should only bar claims arising 10 on or after the date of the agreement, June 25, 2014. (Id. at 20.) In his brief, Plaintiff Kirkland challenging the enforceability of the at-will Plaintiff not be employment Kirkland's contract Based generally. To involve the Supreme on arguments the arbitration agreement and contentions addressed. presents Court the latter, they will precedent, Eleventh Circuit has held that "[i]f . . . [a party's] adhesion, unconscionability, then Benoay v. these issues should be Sees., resolved Inc., 805 in arbitration." F.2d 1437, 1441 1986). Turning to the merits of Plaintiffs' of adhesion, a claims of and not to the arbitration provision Prudential-Bache (11th Cir. the . . . and lack of mutuality pertain to the contract as a whole, alone, extent arguments, a contract is "a standardized contract offered on or leave it' 'take it in Georgia, basis and under such conditions that a consumer cannot obtain the desired product or service except by acquiescing Levine, in 649 the form S.E.2d contract." 333, 336 (Ga. Realty Ct. quotation marks and citation omitted). highlight, contract contract Georgia is courts adhesive does unenforceable." Exterminating Co., 562 have not, Id^; S.E.2d 11 found App. that 213, fact alone, 215 v. as Defendants "the also Inc. 2007)(internal However, standing see Lenders, Mathis (Ga. that render v. Ct. a the Orkin App. 2002)(stating Georgia, that even drafter"). "contracts though they As a result, of are adhesion strictly Plaintiffs' are enforceable construed against in the unenforceability arguments turn on the sole question of unconscionability. In Georgia, "xthe basic test for determining unconscionability is whether, in light of the general commercial background and the commercial needs of the particular trade or case, the clauses involved are so unconscionable under the circumstances one-sided as existing at the to be time of the making of the contract.'" Dale v. Comcast Corp., 498 F.3d 1216, Inc. v. Nelson, 1219 (11th Cir. 2007)(quoting NEC Techs., 478 S.E.2d 769, 771 (Ga. 1996)). The first of the two specific types procedural of unconscionability is unconscionability, which "^addresses the process of making [a] determining whether this form of contract.'" Id. unconscionability Georgia courts look to the following factors: intelligence, their business relative power, the exists, "age, education, acumen and experience of bargaining the parties, conspicuousness comprehensibility of the contract language, In and the oppressiveness of the terms, and the presence or absence of meaningful choice." NEC Techs., 478 S.E.2d at 771-72. The second type of unconscionability recognizes is substantive unconscionability, xmatters such as the commercial 12 that Georgia which focuses "on reasonableness of the contract terms, the the purpose and effect of risks between the the parties, terms, and the allocation of similar policy concerns.'" Dale, 498 F.3d at 1219. "[a] substantively unconscionable only where contract is However, public under Georgia law, it is one that 'no sane man not acting under a delusion would make and that no honest Corp. , 453 Corp., man would F. 346 conclusion Supp. S.E.2d on 2d take 1375 (quoting 583 (Ga. terms, the Dale 1986)). form focused on matters such as contract of.'" 1367, 582, this advantage of Hall v. v. In unconscionability, Comcast Fruehauf reaching "courts have the commercial reasonableness of purpose and effect of allocation of the risks between the parties, the a terms, the the and similar public policy concerns." NEC Techs., 478 S.E.2d at 392. In this case, Plaintiff Kirkland has submitted no evidence of unconscionability itself. the Court its Therefore, outside of arbitration to determine procedural agreement unconscionability, is left largely with two factors upon which to base evaluation: "the conspicuousness the contract language . . . [and] terms." the Yet, and comprehensibility of the oppressiveness of [its] the Court finds neither of these factors to be problematic. The agreement, titled "Arbitration and Waiver of Jury Trial," is appropriately named and is identified by its sufficiently large, bolded text in all capital letters. Aff., Ex. D, Doc. 21-8.) Additionally, 13 (Wanzo the agreement is short in length, straightforward in its to both sides. of evidence conclude As for leaves that the terms, and, on its face, substantive unconscionability, the Court agreement with lacks no basis the lack which to reasonableness commercial upon fair or that it clearly favors one party over another. While for a unconscionability factfinder, Teaming the the lack of is ordinarily a issue cannot move question reserved forward in this evidence presented along with the case. strong federal policy in favor of arbitration, the Court concludes that no genuine dispute agreement. Accordingly, agreement, Kirkland's exists and claims the as to the unconscionability of the the parties have a valid arbitration Court must fall within its determine scope. whether Scurtu, 523 Plaintiff F. Supp. 2d at 1318. Here, Plaintiff Kirkland concedes that, if valid, the agreement applies to his claims arising on or after the contract of June 25, 2014. However, Defendant Apex argues that the agreement should be applicable to any claims arising out of Plaintiff Kirkland's employment with the company, when they arose. points to In support of its argument, language within the agreement regardless of Defendant Apex in which Plaintiff Kirkland agreed to arbitrate and waive his right to a jury trial for any such "claim arising from or in connection with . . . [his] employment." (Wanzo Aff., Ex. D, Doc. 21-8.) 14 Although Defendant Apex arbitration Plaintiff the arbitration suggests, agreement Kirkland's (Id.) Thus, on exists regarding the is agreement at-will found "employment the face whether of contract commence agreement, Plaintiff evidence the states dispute claims the arising without any Court conclude that the arbitration provisions bar those of Kirkland's claims arising on or after June 25, 3. Under 29 U.S.C. overtime provisions as a seaman Similarly, "any on employee 213(a) (12), are other than as a seaman." minimum wage and an American are Id. § to 213(b)(6). An he performs, as master or subject to authority, direction, and control of aboard a vessel, service which the the is rendered primarily as an aid in the operation of such vessel as a means of transportation, provided he performs no amount of character. 15 work of a vessel." inapplicable employee is "employed as a seaman" if substantial Plaintiff "any employee employed overtime provisions employed master only 2 014. the FLSA's inapplicable to vessel the FLSA's can Seamen's Exemption § a that 06/25/2014." Hence, Apex, which genuine Kirkland's from Defendant as in on a before this date are subject to arbitration. supplemental provide specifically shall the does different 29 C.F.R. § 783.31.2 So long as his seaman-like work is "not substantial in amount," the fact that an employee "performs some work of a nature other than that which characterizes the service of a seaman" is immaterial. Id. § 783.37. An employee's seaman-like work will only be considered "substantial in amount" if it "occupies more than 20 percent of the time worked by the employee rule during "must not the workweek." Id. be applied a in However, strict, this 20 percent mechanical fashion, because the amount of nonseaman's work an employee performs can vary from week to week." Godard v. Ala. Pilot, Inc., 485 F. Supp. 2d 1284, 1296 (S.D. Ala. 2007). In the case "American vessel," at wage claims. seamen within the claims given the On the other hand, meaning will be of FLSA barred. § with testimonial Yet, evidence if 7; Sebastian Decl., II 4-5; Markov, 2 Zukic Decl., Sebastian, as Plaintiffs at Doc. Doc. 23, 26-3, 1 an their juncture, that they a never (Markov Decl. Kirkland Aff., 17.) are Plaintiffs have come indicating 6; then this aided in the movement or operation of the EPII. I status 213(b)(6), finding on this issue will not be made. forward EPII's the seamen exemption cannot bar Plaintiffs' minimum overtime hand, In fact, Doc. 23, Plaintiffs and Zukic have each declared the following: Courts must defer to the regulations of executive branch agencies when the agencies' regulations are "based on a permissible construction of the statute." Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984). 16 VXI was told that if I part of the ship, ever touched any mechanical or electrical I Sebastian Decl. SI 6; would be fired." Zukic Decl. 11.) (Markov As a Decl. result, a 1 7; genuine dispute exists as to whether Plaintiffs were seamen. 4. Enterprise Engaged in Commerce For the FLSA's minimum wage and overtime provisions applicable to an employee, any workweek is that individual must be one "who in engaged in commerce goods for commerce, to be or in the production of or is employed in an enterprise engaged in commerce or in the production of goods for commerce." 29 U.S.C. §§ 206(a), are 207(a).3 In this case, employed in an "enterprise Plaintiffs contend that they engaged in commerce," which includes an enterprise that (i) has employees the production of has employees otherwise working engaged in commerce or in goods for commerce or that handling, selling, or on goods or materials that 3 Viewing the evidence in the light most favorable to Plaintiffs, a genuine dispute exists as to whether the EPII constitutes an *enterprise" entered into by Defendants for the purpose of generating income from gambling operations and food and beverage sales. See 29 U.S.C. § 203(r)(l). While Defendants have not raised the issue, the FLSA excludes from an *enterprise" those "activities performed for [an] enterprise by an independent contractor." Id. Because Defendant Apex is a separate legal entity that provides dealers for the EPII, the Court suspects that this issue may arise moving forward. However, at this juncture, a genuine dispute exists as to whether Plaintiffs, in their capacity as contractors." In reaching this conclusion, dealers, were the Court has *independent relied upon evidence suggesting that Defendant GICL may have retained meaningful control over the employees of Defendant Apex. See Santelices v. Cable Wiring, 147 F. Supp. 2d 1313, 1319 (S.D. Fla. 2001) (emphasizing the degree of control an entity exerts over a putative independent contractor as one of several factors used independent to determine contractor). whether For an example, individual is an Defendant GICL's employee chief or an executive officer "has overseen all aspects of the training and management of casino managers who have been employed by GICL and APEX." (Dyer Aff. 11 3, 7.) 17 have been moved in or produced for by any person; and (ii) is an enterprise whose commerce annual gross volume of sales made or business done is not less than taxes at $500,000 the (exclusive retail of level excise that are separately stated). Id. § 203 (s) (1) (A) . with evidence working on of Should Plaintiffs seek to make this showing "employees goods or materials produced for commerce," (1) that selling, "at handling, least that selling, ha[d] or been otherwise moved in or they must present evidence indicating two employees engage[d] in xhandling, or otherwise working on goods or materials that ha[d] been moved in or produced for commerce by any person'" and (2) that these employees xregular and "handle[d] recurrent basis.'" such goods or materials on a Exime v. Inc., E.W. Ventures, 591 F. Supp. 2d 1364, 1369 (S.D. Fla. 2008) (quoting 29 U.S.C. § 203 (s) (1) (A) (i); here, 29 C.F.R. commerce transmission, or means § 779.238). "trade, communication Furthermore, commerce, among the as used transportation, several States or between any State and any place outside thereof." 29 U.S.C. § 203(b) . With respect to Defendants' motion, Plaintiffs have submitted sufficient evidence indicating that they were employed by an enterprise engaged in commerce. submitted (1) Plaintiff Markov's 18 First, declaration Plaintiffs have indicating that "food for the [EPII] was delivered by Sysco, a multi-national food distributor" and (2) an EPII brochure indicating that meals (Markov Decl. 1 11; EPII Brochure, are served aboard the ship.4 Doc. 32-2.) favorable Interpreting to Plaintiffs in their favor, this information and drawing all in the light justifiable most inferences the Court finds that the evidence demonstrates a genuine dispute as to whether the EPII had employees regularly and recurrently handling between states. 3d 1290, that 1295 "goods *4 (D. (S.D. materials Jan. defendant-employer that had Tapas & Tintos, used before Diaz v. HBT, Md. items moved Inc., among 51 F. or Supp. Fla. 2014) (finding it reasonable to infer commerce restaurant"); at See Leon v. or interstate food in 31, in they Inc., No. [a were have employees who handle, moved to in the 2012 WL 294749, difficult to century that twenty-first sell, delivered Ilcvl856, 2012) ("It is the restaurant] imagine does a not or otherwise work on goods or materials that have moved in or have been produced for commerce by any person."); Lopez v. Top Chef Inv., Inc., No. 07-21598-CV, 2007 WL first 4247646, prong of at *2 (S.D. enterprise Fla. Nov. coverage to 30, 2007) (finding be met based the on a 4 In its current form, the text on the brochure indicating that meals are served on the EPII is inadmissible hearsay, which generally should not be considered on a motion for summary judgment. See Fed. R. Evid. 801-802; Jones v. UPS Ground Freight, 683 F.3d 1283, 1293 (11th Cir. 2012). However, because this statement *could be reduced to admissible evidence at trial," the Court may consider it as part of the instant motion. 1293-94 (internal quotation marks and citation omitted). 19 Jones, 683 F.3d at reasonable inference [r]estaurant moved delivered to the evidence also "that in some interstate [r]estaurant"). indicates that the of the goods commerce Moreover, EPII used before in they the were because Plaintiffs' is an enterprise with weekly revenue between $100,000 and $150,000, there is a genuine dispute that the EPII had an annual gross sales volume in excess of $500,000. 5. their 1 12; Sebastian Decl. 9; Markov 32-1, 1 2.) Sec. Supp. Aff., Doc. Within 1 (Markov Decl. Plaintiff Kirkland briefs, Defendants also express skepticism regarding the propriety of Plaintiff Kirkland's presence in this suit. According maintained against to FLSA any § 216(b), employer an ... FLSA by action any one "may or be more employees for and on behalf of himself or themselves and other employees similarly situated." (Emphasis added). However, xx[n]o employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought." Id. Here, Plaintiff Kirkland was not named in the original complaint, but he did file a written consent to legal action on February 2, 2015. (Doc. 4.) Thus, the only remaining question is whether he is "similarly situated" to the other Plaintiffs. Regarding the meaning of "similarly situated," the FLSA nor the Eleventh Circuit have specifically 20 defined the phrase. Morgan, 551 F.3d at 1259 ("The FLSA itself does not define how similar the employees must be before the case may proceed as a collective action. of the And we have not adopted a precise definition term."). emphasized the provisions" Nevertheless, similarity as two determination. Id. of the "job significant (internal Eleventh Circuit requirements" factors quotation has marks "pay making in and this and citation omitted). Given Plaintiff the evidence Kirkland, before in his it, the capacity as a Court casino finds dealer that aboard the EPII, is similarly situated to the original Plaintiffs. four individuals had the same duties as dealers, and all All four were paid a flat fee per cruise plus their share of the tip- pooling arrangement. On the other hand, Plaintiff Kirkland, in his capacity as a maintenance worker, is not similarly situated to the original Plaintiffs.5 present a "reasonable basis" Although Plaintiffs need only regarding the similarity between original and opt-in plaintiffs, the difference in job duties between a dealer and a maintenance worker is enough to preclude the requisite finding of similarity. See id. at 1260 (internal quotation marks and citation omitted). Kirkland's claims seeking FLSA relief Accordingly, in his Plaintiff capacity as a 5 In addition to his work as a dealer, Plaintiff Kirkland performed (Kirkland Aff. SI 3; maintenance work on the EPII while it was docked. Kirkland Supp. Aff., Doc. 26-4, SI 4.) However, Plaintiffs make allegations regarding such work in their complaint or amendments thereto. 21 no maintenance worker Cameron-Grant 1243 n.2 v. are Maxim (11th Cir. situated . . . dismissed Healthcare 2003) ("If the opt-in without Servs., the prejudice. Inc., claimants plaintiffs 347 are are See F.3d not 1240, similarly dismissed without prejudice."). 6. Defendants judgment as to Refusal of Reasonable Compensation contend that Plaintiffs' the Court overtime should claims grant because summary Plaintiffs refused to accept reasonable compensation for the full value of such claims. (Defs'. Br., Doc. 22, at 22.) However, do not provide any authority for their assertion. the Court cannot conclude that Defendants, Defendants Consequently, based on this theory, are entitled to judgment as a matter of law. B. Turning minimum wage to the Minimum Wage Claims merits provision of Plaintiffs' provides as shall pay to each of his employees an hour." 29 U.S.C. § claims, follows: the "Every FLSA's employer . . . not less than[] $7.25 206(a)(1)(C). Yet, to be person must be "suffered or permitted to work." employed, Id. a § 203(g). In considering whether a person was "suffered or permitted to work," employer it "is not relevant that the employee to do the work." Allen v. Bd. Cnty., 495 F.3d 1306, of Pub. Educ. 1314 (11th Cir. 2007). 22 did not ask the for Bibb "The reason that the employee (internal employer performed quotation knows or marks has continues to (internal the work, quotation work and is also citation reason to . hours the marks . . and not omitted). believe must citation relevant." that be Id. If the the employee counted." omitted). Id. Thus, to prevail on a minimum wage claim, a plaintiff must show that: (1) he or she worked without receiving minimum wage compensation and (2) the employer knew or should have known of that work. See id. at 1314-15; 29 C.F.R. 1. § 785.11. Minimum Wage Compensation While the general minimum wage is set at $7.25 per hour, "[t]he FLSA contains an exception that permits employers to pay less than the general 'tipped employee' difference minimum wage - $2.13 as long as the employee's between the $2.13 minimum wage per hour - to a tips make up the and the general minimum wage." Montano v. Montrose Rest. Assocs., Inc., 800 F.3d 186, 188 (5th Cir. 2015) (citing 29 U.S.C. § 203 (m) ). "This employer discount is commonly referred to as a 'tip credit.'" Id. Yet, an employer may not claim a tip credit unless "the employer informs the employee of the FLSA's tip provisions." Rubio v. Fuji & Teppani, Inc., No. 6: ll-cv-1753, 2013 WL 230216, at *2 (M.D. Additionally, Fla. Jan. 22, 2013) (citing 29 U.S.C. § 203 (m) ). "the tip pool may only include customarily tipped employees." Id. "If an employer fails to satisfy one of these 23 preconditions, the employer may not claim the tip credit, regardless of whether the employee suffered actual economic harm as a result." Kubiak 2014 WL 2625181, at v. *2 S.W. (M.D. Cowboy, Fla. tipped employee may voluntarily otherwise ineligible employee Inc., June 12, choose so long No. 3:12-cv-1306, 2014). to share as that However, tips "a with an tip-sharing is done without coercion by the employer." Id. Here, violated Plaintiffs the contend that the FLSA because management tip-pooling employees arrangement took tips the share while not being "customarily tipped employees." Resp., Doc. 23, at 18.) Court notes casino that dealers, retain all of there are from (Pis.' In evaluating the pertinent facts, is no tipped their tips; dispute employees; and (3) that (2) (1) Plaintiffs, Plaintiffs Plaintiffs, the as did not as part of the tip-pooling arrangement, were required to share tips with other members of Casino Cage Conversely, the "Casino Staff." there is Staff, including (Defs.' a Comp. genuine Casino Ex. 3, dispute Management Doc. regarding and 21-13.) whether Defendants' management employees were employees who "customarily and regularly receive[d] to Defendants' generally, and tips." 29 U.S.C. evidence, on the *[i]n EPII, the § 203(m). casino-ship specifically, customarily and regularly receive tips casino According industry, managers from customers." (Dyer Aff., Defs.' Ex. A, Doc. 21-1, 1 16.) Yet, Plaintiffs' evidence 24 indicates that generally, or on the EPII, specifically, tips. it (Markov is Supp. not customary Aff., Doc. in the industry, for managers to receive 26-1, Plaintiffs each declare the following: casino M 1-2.) In fact, "I never saw managers or supervisors receive tips from customers on the Emerald Princess II." (Pis.' Ex. A-D, Doc. 26-1.) Even with a genuine dispute as to management's receipt of tips, Defendants contend that they are still entitled to summary judgment. Specifically, arrangement is entered this they nevertheless arrangement argue that permissible the tip-pooling because voluntarily. Plaintiffs However, because Plaintiffs directly refute the voluntariness of the arrangement, summary judgment is also improper on this issue. Aff. 1 3; Sebastian Supp. Aff. 1 3; (Markov Supp. Zukic Decl. 1 6; Kirkland Supp. Aff. 1 3.) 2. The employer working FLSA's Employer's Knowledge knowledge requirement knew or had reason at compensated. the time Allen, for fulfilled to know that which he 495 F.3d at 1314. case that involves the inadequacy, payment, is or if the the employee was she was improperly In this minimum wage rather than the absence, of Defendants do not contend that they were unaware of Plaintiffs' work. In fact, in addition to Plaintiffs' evidence, Defendants have submitted over five hundred pages of payroll and 25 time sheet Plaintiffs' 12.) documentation work. demonstrating (Defs.' Consequently, a Comp. genuine Ex. 2, their Docs. dispute of knowledge 21-9 of through 21- material fact also exists as to this element of Plaintiffs' minimum wage claims. C. Under employee § 207 of Overtime Claims the FLSA, "an employer may not employ his for a workweek longer than forty hours unless his employee receives overtime compensation at a rate not less than one and a half times his regular rate." (citing 29 U.S.C. § 207(a)(1)). claim based on this section, Allen, 495 F.3d at 1314 For a plaintiff to prevail on a the plaintiff must show that (1) he or she worked overtime without compensation and (2) knew or should have known of (citing Reich 1076, 1081-82 1. v. Dep't (11th Cir. Defendants' the overtime work. of Conservation & Nat. the employer Id. at Res., 1314-15 28 F.3d 1994)). Records Indicate More Than Forty Hours Along with its motion for summary judgment, Defendant Apex submitted a record of shifts worked, an earnings statement, and a record of tips corresponding to each Plaintiff for each pay period he or she worked. 12.) (Comp. Ex. D, Docs. 21-10 through 21- Although Defendant Apex did not record the number of hours worked by each Plaintiff, the Court is satisfied that these documents indicate that Plaintiffs worked more than forty hours 26 without proper compensation during a certain number of weeks specifically, those listed in Court's Exhibit l.6 facts in the light most favorable to Plaintiffs, - Viewing the the Court made this conclusion after basing Friday and Saturday night shifts on a length of 6.75 hours and all other shifts on a length of 5.75 hours.7 (Markov Decl. SI 3; Sebastian Decl. 5 3.) Accordingly, whether the Plaintiffs Court Markov, finds a genuine Sebastian, and dispute Kirkland as to worked without overtime compensation during the weeks listed in Court's Exhibit 1. led the dispute were Moreover, Court to because Defendant Apex's this information, regarding whether Defendant working Plaintiffs' during these there Apex own records have is also a knew that Plaintiffs As for timeframes. genuine those of claims not corresponding to weeks listed in Exhibit 1, they are subject to the remaining FLSA analysis. 2. Defendants' Records Do Not Indicate More Than Forty Hours "It is the employee's wages, employment," employer's hours, and it duty to keep records of the and other conditions and practices of is the employer "who is in a superior position to know and produce the most probative facts concerning 6 Court's Exhibit 1 is attached to this Order. 7 In its reply brief, Defendant Apex asserts that the four ten-minute breaks Plaintiffs received during the course of their shift should be deducted from the Court's hours-worked calculation. (Defs.' Rep., Doc. 29, at 12.) However, the Court has found no evidence of this assertion. breaks will not be considered. 27 Therefore, such the nature 1314 of (citing Anderson, where the cannot employer be proving [he] as a Jackson v. Corr. 2015) (per failed the to 687). keep employee evidence matter Corp. to of omitted); Thus, records show the and 495 also 495 the [his] amount if of [he] and extent reasonable of inference." 952 at Anderson, records burden compensation F.3d F.3d at xxin situations or 606 F. App'x 945, Allen, see Allen, satisfies just of Am., curiam) (citing quotation marks at performed work without sufficient work work performed." 328 U.S. has trusted, that produces that and amount (11th Cir. 1316) (internal 328 U.S. at 687 ("The solution ... is not to penalize the employee by denying him any recovery on the ground that he precise extent of uncompensated work. is unable to prove the Such a result would place a premium on an employer's failure to keep proper records in conformity with his statutory duty; it would allow the employer to keep the benefits of an employee's labors without paying due compensation as contemplated by the [FLSA]."). Accordingly, xx[t]he employee's burden is not great and the Eleventh Circuit has found an employee can successfully shift the burden of proof by presenting his own testimony indicating the employer's time records cannot overtime." 1280, 1287 be trusted and that he worked Centeno v. I & C Earthmovers Corp., (S.D. Fla. 2013)(internal citation omitted). 28 the claimed 970 F. Supp. quotation marks 2d and Whether an employer's the facts of each case. records are See Allen, trustworthy depends 495 F.3d at 1316. on In Allen, the Eleventh Circuit found that a genuine dispute existed as to the trustworthiness following evidence: of the (1) employer's records based on the testimony that some employees would not record overtime because the employer would not pay them for it; (2) testimony time sheets testimony that some employees were to show that no more employees' reflected overtime work"; than time and forty sheets (4) forced to amend fours "were torn their worked; up (3) if they testimony that an individual in charge of time sheets would white out overtime hours. The court in Jackson v. Corr. Corp. WL 575720, 945 at *10 (11th Cir. 2015), trustworthiness alia, there or have testimonial Defendants conclude these - Ga. an 11, employer's "no submitted. produce 833 exists. (11th Cir. documentary records that any or dispute exists time to the when, the the Court Indaglo, Inc., 29 or state the inter altered, Here, or records cannot trustworthiness 2014)(relying on employees' evidence to documentary referencing See Gilson v. as records." - 2014 F. App'x Defendant Consequently, as CV 311-111, aff'd 606 evidence even that a genuine dispute documents 2014), Plaintiff's submitted No. genuine evidence destroyed not Feb. held that no challenging have App'x 832, "to of was manipulated, Plaintiffs (S.D. of Am., Id. 581 of F. failure with specificity particular dates on which their actual work hours were not accurately reflected in the employer's records" in affirming the district court's grant of the employer's motion for judgment as a matter of law). Even assuming Plaintiffs produce a genuine dispute as they have not submitted presented enough to the records' enough evidence to evidence to trustworthiness, create a genuine dispute as to the amount and extent of their work as a matter of just and reasonable inference. the Court is guided by In making the Jackson, 606 F. App'x 945. Eleventh this determination, Circuit's opinion in In Jackson, the court found that the plaintiff "ha[d] never stated with any clarity or precision the number of hours that work, she allegedly worked, the amount where or when the work was else that would assist unpaid overtime." Id. a factfinder at 952. or completed, nature of or anything in approximating Jackson's Consequently, the Jackson court found that the plaintiff's assertions were "vague" and "were not evidence from which can be drawn just and reasonable inferences about the nature or extent of that work." Id. In the instant matter, offering no evidence that entitled to unpaid overtime compensation, they are Plaintiffs Kirkland and Zukic cannot create a genuine dispute as to the amount and extent of inference. their As work for as a matter Plaintiff 30 of Sebastian, just his and reasonable only evidence relevant to this declaration: "I issue often 1 (Sebastian Decl. is the worked 4.) following over Appearing statement forty hours from per his week." to be nothing more than an allegation tracking the language of the FLSA, this statement is vague and lacks any clarity or precision regarding the number of hours he actually worked. Therefore, Plaintiff Sebastian also fails to make the requisite showing. Finally, offers fifty this (50) hours." in support of his overtime claim, Plaintiff Markov assertion hours from his each week" - (Markov Decl. SIS declaration provides more than Plaintiff declaration: "usually 4, 6.) Plaintiff (1) were Apex; conduct drove "triggering recall him Defendant to factors," when he worked Plaintiff (2) his certain overtime; Markov and if of of shifts; events, (4) (3) would whether well-established written evidence, information that courts whether a genuine dispute F.3d at 1317 have issue has Defendant turned is present. to See, that whether him third parties this when e.g., (highlighting the significance of not Apex's help would be able to support his claim of unpaid overtime. absence Markov's this still (55) when he worked shifts underreport e.g., least . . . fifty-five While provided information regarding: by worked at clarity and precision on Sebastian's, undocumented "I is In the the type deciphering Allen, 495 a plaintiff's ability to use triggering factors and the knowledge of third 31 parties to indicate if and when she worked overtime); 2014 WL 575720, evidence that at *11 Jackson, (relying on the fact that "there [wa]s no employer's conduct in the instant case drove [p]laintiff to misreport or underreport her time" in concluding that there was no genuine dispute as to whether plaintiff had shown the amount and extent of her overtime work as a matter of just and reasonable inference) ; Thrower v. Peach Cnty., of Educ., 2, No. 5:08-cv-176, 2010 WL 4536997, 2010)(emphasizing plaintiffs' at *6 testimony Ga., Bd. (M.D. Ga. identifying Nov. certain duties for which they were not provided overtime compensation). Consequently, Plaintiff Markov is left only with his assertion that he worked at least fifty - but usually fifty-five - hours per week. As without more, prior is courts have insufficient to demonstrated, create a this genuine evidence, issue as to the amount and extent of an employee's work as a matter of just and *11. reasonable As showing a in inference. result, order Court's Exhibit 1 See Jackson, 2014 Plaintiff Markov cannot for the overtime claims WL 575720, at make the not referenced *4, requisite in to move forward. HI. For the reasons above, IN PART Defendants' CONCLUSION the Court GRANTS IN PART and DENIES motion for summary judgment (Doc. 10) . Of Plaintiffs' minimum wage claims not precluded by the statute of 32 limitations, claims against Kirkland's a Plaintiffs Markov, Defendant Apex against and Sebastian, (2) Defendant those Apex overtime and Kirkland's dates referenced Clerk is in directed claims, claims Exhibit to ENTER 1 only and Zukic's of Plaintiff arising casino dealer before June 25, Plaintiffs' Sebastian, (1) claims capacity as Of only 2014, from his may proceed. Plaintiffs Markov, against Defendant Apex for the may JUDGMENT proceed. in favor Accordingly, of Defendant the GICL and further directed to TERMINATE Defendant GICL as a party. ORDER March, ENTERED at Augusta, Georgia, this <&</ day of 2016. DAL HALL UNITEI^ STATES DISTRICT JUDGE CRN DISTRICT OF GEORGIA 33 EXHIBIT 1 Plaintiff Weeks of More Than 40 Hours Stoyan Markov December 31, 2012-January 6, 2013 March 18-24, 2013 April 1-7, 2013 April 8-14, 2013 April 15-21, 2013 May 6-12, 2013 May 13-19, 2013 May 20-26, 2013 May 27 - June 2, 2013 June 3-9, 2013 June 10-16, 2013 June 17-23, 2013 June 24-30, 2013 July 1-7, 2013 July 8-14, 2013 July 15-21, 2013 July 22-28, 2013 July 29 - August 4, 2013 August 12-18, 2013 August 19-25, 2013 August 26 - September 1, 2013 September 2-8, 2013 December 16-22, 2013 December 30 - January 5, 2014 January 13-19, 2014 February 3-9, 2014 February 17-23, 2014 February 24 - March 2, 2014 March 3-9, 2014 March 10-16, 2014 March 24-30, 2014 March 31 - April 6, 2014 April 7-13, 2014 April 21-27, 2014 April 28 - May 4, 2 014 May 5-11, 2014 May 12-18, 2014 May 19-25, 2014 June 2-8, 2014 June 9-15, 2014 June 16-22, 34 2014 Gerry Sebastian May 20-26, 2013 July 1-7, 2013 Zorica Zukic None Billy Kirkland December 31, 2012-January 6, 2013 May 20-26, 2013 March 24-30, 2014 May 19-25, 2014 August 4-10, 2014 35
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