United States District Court, M.D. Florida, Tampa Division
D. WHITTEMORE UNITED STATES DISTRICT JUDGE
THE COURT are Plaintiffs' Motion for Summary
Judgment Against Individual Defendants Arthur Barlaan and
Jocelyn Barlaan (Dkt. 55), and Defendants' response (Dkt.
71). Upon consideration, the motion is GRANTED in part and
DENIED in part.
Ace Homecare was a home health agency that had several
locations in the State of Florida and employed hundreds of
employees. The seven named plaintiffs were employed by Ace
Homecare at its Sebring, Florida location (also referred to
as the Avon Park facility) until their termination when all
of Ace Homecare's facilities were shut down. Six were
employed as nurses and one as a home health aid.
(See Plaintiffs' Declarations, Dkts. 25-29).
During the last two weeks of Plaintiffs' employment, from
February 29, 2016 to March 13, 2016, Plaintiffs and the
purported similarly situated employees received no
compensation and were terminated without at least 60
days' advance notice. Plaintiffs allege violations of the
Fair Labor Standards Act and the Worker Adjustment and
Retraining Notification Act, 29 U.S.C. § 2101 et seq.
judgment is appropriate where "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 genuine factual dispute exists only if a reasonable
fact-finder 'could find by a preponderance of the
evidence that the [non-movant] is entitled to a verdict.'
" Kernel Records Oy v. Mosley, 694 F.3d 1294,
1300 (11th Cir. 2012) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252 (1986)). A fact is material if
it may affect the outcome of the suit under governing law.
Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th
Cir. 1997). All facts are viewed and all reasonable
inferences are drawn in the light most favorable to the
non-moving party. See Scott v. Harris, 550 U.S. 372,
moving party bears the initial burden of showing that there
are no genuine disputes of material fact. Hickson Corp.
v. Northern Crossarm Co., Inc., 357 F.3d 1256, 1260
(11th Cir. 2004) (citing Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986)). Once the moving party demonstrates
the absence of a genuine issue of material fact, the
nonmoving party must go beyond the pleadings through the use
of affidavits, depositions, answers to interrogatories, and
admissions on file to designate facts showing a genuine issue
for trial. See Celotex Corp., 477 U.S. at 324. The
Court will not weigh the evidence or make findings of fact.
Morrison v. Amway Corp., 323 F.3d 920, 924 (11th
Cir. 2003). Rather, the Court's role is limited to
deciding whether there is sufficient evidence upon which a
reasonable juror could find for the non-moving party. See
contend they are entitled to summary judgment as to
liability, liquidated damages, and attorneys' fees and
costs against individual defendants Arthur and Jocelyn
The Barlaans' Individual Liability
contend that it is undisputed that Arthur and Jocelyn Barlaan
exercised operational control over Ace Homecare and its
employees making them jointly and severally liable as
employers under the FLSA.
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 but rather on the
circumstances of the whole activity." Alvarez Perez
v. Sanford-Orlando Kennel Club, Inc., 515 F.3d 1150,
1160 (11th Cir. 2008) (citations omitted). And, the Eleventh
Circuit has recognized that "'the overwhelming
weight of authority is that 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.'"
Id. (quoting Patel v. Wargo, 803 F.2d 632,
637-38 (11th Cir. 1986)). To qualify as an
"employer" subject to liability, the officer
"must either be involved in the day-to-day operation or
have some direct responsibility for the supervision of the
employee." Id. The focus is on the role the
officer actually played in the company, rather than on the
role he or she could have played. Id. at 1161.
contend that they did not supervise or deal directly with
Plaintiffs, had no involvement with Plaintiffs'
day-to-day tasks or schedules, and worked in the corporate
office in Tampa. However, the undisputed facts demonstrate
undisputed that the Barlaans were co-owners and corporate
officers of Ace Homecare. Arthur Barlaan was the Chief
Information Officer and Treasurer. The IT director and
billing/payoll director reported to him. He was responsible
for the billing and claims processing, provided management
with daily, weekly, and monthly reports "to provide
their day-to-day operations, " was in charge of
supporting the scheduling software, was the signatory on the
bank account, and was in charge of monitoring and disbursing
payroll. (Arthur Barlaan Dep., Dkt. 57 at 11:12-13:9,
63:1-64:11, 65:5-20). Arthur Barlaan admitted that he had the
authority to hire and fire employees under his supervision