Summary Judgment Response Filed in Gainesville Florida

            Plaintiff, Richard Gump, responds to Defendants, Open Arms Medical Center at Alachua, LLC and Brian C. Roberts’s Motion for Summary Judgment [Doc. 18] as follows:
After already having worked for Defendants’ as their employee for several months, Defendants approached Plaintiff and required him to sign their Employee Hiring Policy Agreement [Doc. 18] (the “Agreement”). See Plaintiff’s Depo, Page 43, Lines 2-9.  Agreeing to the Defendants’ policy was required for Plaintiff’s continued employment. See Plaintiff’s Depo, Page 47, Lines 20-25 and Page 48 Lines 1-6.  The Agreement had two important and conflicting provisions; the first stated that Plaintiff’s working hours would be 42.5 hours a week:
I agree that my compensation is based on an hourly rate of $10.25/hr to work as part-time employee. The working hours from 9:00 AM- 6:00 PM; 30 mins. Lunch break. Days of work Monday to Friday.
See Doc. 18. Second, and contrary to the first, it also stated that Plaintiff “agree[d] to the no overtime policy unless authorized and approved.” Id. Thus, the Agreement required him to work 42.5 hours a week but without the payment of overtime. See Plaintiff’s Deposition, Pages Pages 43 Lines 19-25 and Page 44 Lines 1-12. Having normal working hours of 42.5 hours per week is contrary to Defendant’s stated policy that “no overtime was needed and should not be worked” without prior authorization.  See attached Exhibits 4 and 5, Defendants’ Answer to Interrogatory Number 21 (e.s.) (“The policy was that no overtime was needed and should not be worked unless prior authorization was obtained.”)
Other employees of Defendants had already been deprived of overtime due from Defendants; so clarifying the Defendant’s overtime policy was an especially important issue in this particular employment situation. See Exhibit 1, Declaration of Plaintiff’s former co-worker – Emily Williams.  Moreover, at about the time he was terminated, Plaintiff’s hours of employment with Defendant were to increase after the Fall due to his working full time in Summer A. See Plaintiff’s Deposition, Pages 14 – 15, Lines 24-3 (“my original plan was to only take Summer B and work full-time Summer A”); See also Page 16, Lines 4-9. In fact, even before his Fall classes ended, his May hours worked show 35 hours worked per week.  See attached Exhibit 2, May Timesheet. Even prior to that time, Plaintiff worked 39 hours a week and therefore overtime compensation was a legitimate concern. See attached Exhibit 3, March Timesheet.  Defendants admitted that Plaintiff “felt free to come and go pretty much as he pleased”, See attached Exhibits 4 and 5, Answer to Interrogatory Number 19.
Given the fact that other employees such as Emily Williams had been denied overtime pay due and Plaintiff’s hours were expected to include overtime hours (both by virtue of the Agreement’s terms and his availability from not having classes during Summer A), Plaintiff reasonably objected to Defendant’s Agreement as worded. See Plaintiff’s Depo, Page 43 – 44:
The first problem that I had was I believe it’s page 3, Number 1, where it says the working hours from 9 a.m. to 6 p.m. with a 30-minute lunch break . . .  if it was only a 30-minute lunch break, working those hours, that constituted overtime. And then just two more lines down, it says I agree to no overtime. So I told her I didn’t feel comfortable signing it, asked her if she could change it. She said if I had any problems, I had to take it up with Roberts.
See Id.  He was fired for objecting to the terms of the Agreement.  See Plaintiff’s Depo, Page 45 Lines 22-25 and Page 46 1-10. Defendants never proffered a legitimate reason for terminating Plaintiff because they claim that he quit.[1] There is no evidence that Plaintiff acted improperly, was unprofessional and/or deserved to be fired. See attached Exhibits 4 and 5, Defendants’ answers to Interrogatories 9 and 14.
            The anti-retaliation provision is a critical element in the enforcement scheme of the FLSA. See e.g., Mitchell v. Robert DeMario Jewelry. Inc., 361 U.S. 288, 292 (1960). Under the provision, found at Section 15(a)(3) of the FLSA, it is: unlawful for any person.. .to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under [the FLSA], or has testified or is about to testify in any such proceeding…29 U.S.C. § 215(a)(3). “The FLSA’s anti-retaliation clause is designed to ensure that employees are not compelled to risk their jobs in order to assert their wage and hour rights under the Act.” Lambert v. Ackerlv, 180 F.3d 997, 1004 (9th Cir. 1999).
“Unchecked retaliation subverts the purpose of the FLSA” and “the resulting weakened enforcement of federal law can itself be irreparable harm in the context of a preliminary injunction application.” Mullins v. City of New York, 626 F.3d 47, 55 (2d Cir. 2010); see also Centeno-Bumev v. Perrv, 302 F. Supp. 2d 128, 135 (W.D.N.Y. 2003) (“It is well established that the anti-retaliation provision of the FLSA is critical to the entire enforcement scheme of the federal wage and hour law.”) Here, the Plaintiff meets all three required elements to make a prima facie showing of retaliation because he engaged in statutorily protected activity and was fired that same day for his objections.[2]

  1. Plaintiff Engaged in Statutorily Protected Activity

Protected activity does not require specific reference to the FLSA. Burnette v. Northside Hosp., 342 F. Supp. 2d 1128, 1133-34 (N.D. Ga. 2004). Informal complaints to an employer regarding wage practices or any conduct that implicates the FLSA qualify is protected activity. EEOC v. White and Son Enters., 881 F.2d 1006, 1011 (11th Cir. 1989). Plaintiff did not need to specifically reference the “FLSA” in his objections for the conduct to be protected. See e.g. EEOC v. White and Son Enters., 881 F.2d 1006, 1011 (11th Cir. 1989).
Case law interpreting the FLSA’s anti-retaliation provisions demonstrates that courts interpret those provisions in a manner consistent with providing protection to employees. According to the 11th Circuit, “By giving a broad construction to the anti-retaliation provision … its purpose will be further promoted.” EEOC v. White & Son Enterprises, 881 F.2d 1006, 1011 (11th Cir. 1989). The 11th Circuit has taken a liberal approach to what constitutes protected activity under the FLSA – even specifically stating that it includes complaints not even listed in the FLSA’s anti-retaliation provision; in White and Son Enterprises, 881 F.2d at 1011, the Court noted as follows:
The charging parties did not perform an act that is explicitly listed in the FLSA’s anti-retaliation provision; however, we conclude that the unofficial complaints expressed by the women to their employer about unequal pay constitute an assertion of rights protected under the statute. The FLSA, in general, is remedial in purpose.
(e.s.). Therefore, the 11th Circuit concluded that female employees who asked for equal pay had “filed any complaint” under the FLSA and those comments were protected activity. Id. Other courts have also classified as “complaints” statements far less definite than those in this case. See e.g. Romeo Community Schools, 976 F.2d at 989 (plaintiff who told the school district that she believed they were “breaking some sort of law” by paying her lower wages than previously paid to male employees had “filed any complaint” under the FLSA); see also Snapp v. Unlimited Concepts, Inc., 208 F.3d 928, 939 (11th Cir. 2000) (noting that “the FLSA is remedial and humanitarian in purpose and that it must not be interpreted . . . in a narrow, grudging manner” (citation and internal quotation marks omitted) (alteration in original)).
Having a policy that requires employees to work overtime but at the same time forbids paying overtime is clearly a violation of the FLSA. See Alvarez v. IBP, Inc., 339 F.3d 894, 905 (9th Cir. 2003) (“It is axiomatic, under the FLSA, that employers must pay employees for all ‘hours worked.’”), citing 29 U.S.C. §§ 206, 207 (1999); Turner v. City of Philadelphia, 262 F.3d 222, 224 (3d Cir. 2001). Defendant’s conflicting policy of having regular working hours of 42.5 hours a week while at the same time having a no overtime policy clearly violated the FLSA because it is axiomatic that not paying employees overtime wages for all hours worked over 40 in a workweek violates the FLSA. This point is emphasized in this case, where Defendants have a proven history of not paying their employees overtime wages.
When this evidence is viewed with all reasonable interfaces drawn in favor of the Plaintiff, Plaintiff’s objections are far more specific and objectively reasonable than the informal and complaint made to the owner’s wife in Wigley v. Western Florida Lighting Inc., 2005 WL 3312319, at *4 (M.D. Fla. Dec. 7, 2005). In Wigley, one of the issues was whether Plaintiff’s “complaint to Donati’s wife regarding Defendants’ failure to pay her for partial days she worked” was protected activity. Id. at *5. The Florida Middle District court found that “Plaintiff’s informal complaint to Donati’s wife regarding Defendants’ failure to pay her for partial days she worked constitutes protected activity within the meaning of the FLSA”. Thus, Plaintiff’s objection to the Defendant’s Agreement and request that it be clarified to make sure he was paid overtime due was protected activity.

  1. Defendants Incorrectly Compute Plaintiff’s Damages

An employer who violates the retaliatory firing provision of the FLSA “shall be liable for such legal or equitable relief as may be appropriate to effectuate the purposes of [the FLSA], including without limitation employment, reinstatement, promotion, and the payment of wages lost and an additional equal amount as liquidated damages.” 29 U.S.C. § 216(b). This is a flexible standard, and courts “have to exercise some creativity in awarding relief in retaliation cases.” Snapp v. Unlimited Concepts, Inc., 208 F.3d 928, 937 (11th Cir. 2000).
Plaintiff’s complaint and initial disclosures request damages in excess of lost wages argued by Defendant, including the following relief: compensation for emotional distress damages, an equal amount as liquidated damages and reinstatement. Such damages are available to a Plaintiff claiming FLSA retaliation. See e.g. Isaula v. Chicago Restruatn Group, LLC, Dist. Court, SD Florida 2014 (awarding emotional distress damages and citing 29 U.S.C. § 216(b) for the proposition that employers “shall be liable for such legal or equitable relief as may be appropriate for the purposes of [the anti­retaliation provision of the FLSA]”); Travis v. Gary Community Mental Health Center, 921 F.2d 108 (7th Cir. 1990) (workers whose employers discriminate against them for raising FLSA claims may be awarded compensation for emotional distress and punitive damages).  Avitia v. Metropolitan Club of Chicago, 49 F.3d 1219 (7th Cir. 1995) (“The distress need not cross some threshold of severity to be a basis for damages.”); Lambert v. Ackerly, 180 F.3d 997 (9th Cir. 1999) (the court said it would only reverse the jury’s award if the amount was “grossly excessive or monstrous.”); 29 U.S.C. §216(b) (liquidated damages); Avitia v. Metropolitan Club of Chicago, 49 F.3d 1219 (7th Cir. 1995) (front pay); Bailey v. Gulf Coast Transportation, Inc., 7 Wage & Hour Cas. 2d (BNA) 968 (11th Cir. 2002) (interpreted the FLSA’s anti-retaliation language expansively as to the relief available). Defendant’s Motion fails to present any record evidence regrinding emotional distress damages, back pay and front pay suffered past the date of Plaintiff’s deposition, and the right to reinstatement. Moreover, even as to back pay, it fails to address the fact that Plaintiff’s hours of employment with Defendant were to increase due to Plaintiff taking a summer semester (Summer A) off to work more hours.
Defendants’ computations also fail to address the fact that Plaintiff’s hours of employment were to increase due to summer ending and that he was free to work “as much as he pleased” for Defendants. Plaintiff’s Deposition, Pages 14 – 15, Lines 24-3 (“my original plan was to only take Summer B and work full-time Summer A”); See also Page 16, Lines 4-9; Exhibits 4 and 5, Answer to Interrogatory Number 19. As such, Plaintiff’s lost wages from employment with the Defendant would be $448.44 per week had he worked the regular hours identified in the Agreement (10.25 x 40, plus 2.5 hours of overtime per week). In fact, even before his classes ended and he had Summer A off, his May hours worked show 35 hours worked per week and even his time from March showed 39 hours.
Plaintiff was fired for objecting to Defendants’ policy of not paying overtime without prior approval although Defendants’ normal working hours amounted to over 40 hours in a workweek. Moreover, his objections came from the backdrop of Defendants’ unwillingness and failure to pay other employees’ overtime they are due and from the full-time hours both previously worked by Plaintiff and which he expected to work in the future – especially during Summer A when he had no classes.  Having normal working hours of 42.5 hours per week is objectively contrary to Defendant’s stated policy that “no overtime was needed and should not be worked” without prior authorization.  Finally, Defendant’s recounting of Plaintiff’s potential damages is flawed. Therefore, Defendant’s Motion should be denied.
Dated:  November 18, 2015
[1]  Defendants, as per the attached Exhibits 4 and 5 (answer to Interrogatories #9 and #14), claims that Plaintiff quit and was not fired. Thus, there’s no “legitimate reason” for terminating Plaintiff for Plaintiff to rebut. See Brooks v. Fonda-Fultonville Cent. Sch. Dist., 938 F.Supp. 1094, 1107 (N.D.N.Y. 1996) (“However, in the instant case, the only offer of explanation by the defendant is that the plaintiff was not terminated.”). Defendant’s Motion at Page 8 seems to allude to the notion that Plaintiff was “confrontational” and deserved to be fired – however, as per the attached Interrogatory Answers, Defendant’s position is that he quit. There’s no record evidence that Plaintiff was confrontational or that he deserved to be fired.
[2] The Defendant does not appear to be challenging the causation element – nor could it. Plaintiff’s termination from his employment was immediately after his objections to signing the Agreement.


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