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Angulo v. Il Gabbiano Miami, LLC

United States District Court, S.D. Florida

December 9, 2019

Everth Issac Angulo, Plaintiff,
v.
Il Gabiano Miami, LLC and others, Defendants.

          ORDER ON PARTIES' MOTIONS FOR SUMMARY JUDGMENT

          Robert N. Scola, Jr. United States District Judge.

         This matter is before the Court on Plaintiff's motion for partial summary judgment (ECF No. 38) and the Defendants' motion for summary judgment. (ECF No. 41.) Both motions are fully briefed and ripe for the Court's review. Upon review of the record, the parties' briefs, and the relevant legal authorities, the Court denies the Plaintiff's motion for summary judgment (ECF No. 38) and grants in part and denies in part the Defendant's motion for summary judgment. (ECF No. 41.)

         I. Background

         Plaintiff Everth Issac Angulo filed a complaint against his former employer, Il Gabbiano, and the three owners of the restaurant, Gino Masci, Fernando Masci, and Luigi Tullio, for unpaid overtime wages under the FLSA. (ECF No. 1.) On July 29, 2019, Il Gabbiano filed a four-count counterclaim against Angulo for conversion, fraud in the inducement, unjust enrichment, and civil theft. (ECF No. 30.) The counterclaim alleges that Defendants overpaid Angulo in the amount of $39, 446.71.

         Based on the facts in the record, the Plaintiff worked as an appetizer and salad preparer from 2007 to 2019. (Defendants' Statement of Facts (“Def.'s SOF”) at ¶ 1.) According to the Defendants, the going rate for a salad preparer in Miami is $9 to $13 per hour. (Id. at ¶ 3.) Il Gabbiano paid Angulo $1100 a week if he worked six days a week, which was approximately $200 more than he would make if he worked 60 hours at $13 per hour with $19.50 per overtime hour. (Id. at ¶¶ 3, 12.) The Defendants paid Angulo more than the going market rate so that Angulo would remain loyal to the restaurant and excel in his work. (Id.) If he worked fewer than six days, his pay would be reduced by the number of days he missed. (Id.) Carmen Polluck, the Controller of Il Gabbiano, testified that “instead of paying him $13 an hour plus overtime, we would pay him a set amount so that he can come and go.” (ECF No. 39-7 at 24:19-23.)

         Chef Sanango was Angulo's direct supervisor and responsible for hiring him. (Id. at ¶ 4.) Carmen Polluck is responsible for running the office, making the restaurant's budget, managing the employee's benefits, processing payroll, and reconciling time records. (Id. at ¶5.) At least one of the owners is always present at the restaurant. (Plaintiff's Statement of Facts (“Pl.'s SOF”) at ¶ 2, ECF No. 39.)

         II. Legal Standard

         Summary judgment is proper if following discovery, the pleadings, depositions, answers to interrogatories, affidavits and admissions on file show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Fed.R.Civ.P. 56. “The purpose of summary judgment is to isolate and dispose of factually unsupported claims or defenses.” Santelices v. Cable Wiring, 147 F.Supp.2d 1313, 1316 (S.D. Fla. 2001) (Jordan, J.).

         In reviewing a motion for summary judgment, the Court must “view the evidence and all factual inferences therefrom in the light most favorable to the non-moving party, and resolve all reasonable doubts about the facts in favor of the non-movant.” Feliciano v. Miami Beach, 707 F.3d 1244, 1247 (11th Cir. 2013) (quoting Skop v. City of Atlanta, Ga., 485 F.3d 1130, 1143 (11th Cir. 2007)). The moving party bears the burden of proof to demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. However, “the mere existence of a scintilla of evidence in support” of the non-moving party's position is insufficient to deny summary judgment. Santelices, 147 F.Supp.2d at 1317 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).

         III. Analysis

         I. The Plaintiff's Motion for Partial Summary Judgment

         The Plaintiff's motion for partial summary judgment asks the Court to find that (A) the Plaintiff was an employee of the individual Defendants and (B) that liability has been established. (ECF No. 38 at 2.)

         A. Defendants as Individual Employers

         “A plaintiff may seek to sue an individual employer or multiple employers in a FLSA case, as the statute contemplates that there may be several simultaneous employers who are responsible for compliance with the FLSA.” Ceant v. Aventura Limousine & Transp. Service, Inc., 874 F.Supp.2d 1373, 1380 (S.D. Fla. 2012) (Scola, J.). The statutory definition of “employer” is quite broad and “encompasses both the employer for whom the employee directly works as well as any person acting directly or indirectly in the interests of an employer in relation to an employee.” Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1298 (11th Cir. 2011) (citing 29 U.S.C. § 203(d)). An individual “must either be involved in the day-to-day operation or have some direct responsibility for the supervision of the employee” in order to qualify as an FLSA employer. Gonzalez v. Metropolitan Delivery Corp., 2012 WL 1442668, *8 (S.D. Fla. Apr. 26, 2012) (Scola, J.) (citing Alvarez Perez v. Sanford-Orlando Kennel Club, Inc., 515 F.3d 1150, 1160 (11th Cir. 2008)). “A party need not have exclusive control of a corporation's ...


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