Summary
denying employee's motion for summary judgment where affidavits showed direct conflict over whether employee used the internet, telephone, mail, and credit cards to purchase inventory for a business
Summary of this case from Curry v. High Springs Fam. Practice Diagnosis CTOpinion
CASE NO: 8:06-cv-33-T-23TBM.
March 17, 2007
ORDER
Kristen Silk (`Silk") moves (Doc. 21) for summary judgment against her former employer, Joe Albino ("Albino"), for recovery of unpaid minimum wages and other relief under the Fair Labor Standards Act, 29 U.S.C. § 216(b) ("FLSA"). Silk avers that Albino failed to pay her a minimum wage for work she performed at Albino's business, Styling Concepts, during the weeks of March 28, 2005, and April 4, 2005 (Doc. 1 at 2-3). In response, Albino opposes Silk's summary judgment motion and denies any liability under the FLSA (Doc. 25).
Summary judgment follows only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), Federal Rules of Civil Procedure; Celotex Corp. v. Catrett, 477 U.S. 317, 324-25 (1986). A disputed material fact precludes summary judgment. Matsushita Elec. Ind. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). Unsworn and conclusory allegations are insufficient to support summary judgment. Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991). The existence of a mere scintilla of evidence in opposition will not preclude summary judgment. Anderson v. Liberty Lobby, Inc., 106 S Ct. 2505, 2512 (1986).
To demonstrate entitlement to summary judgment, Silk first must establish coverage under the FLSA. To qualify for relief under the FLSA, an employee may demonstrate either "enterprise coverage" or "individual coverage." Alonso v. Garcia, 147 Fed. Appx. 815, 816 (11th Cir. 2005). Claiming that she is an employee "engaged in commerce," Silk asserts only "individual coverage" under the FLSA.
The FLSA regulates employment activities constituting interstate commerce, not activities merely affecting interstate commerce. McLeod v. Threlkeld, 319 U.S. 491, 493 (1943). An employee is "engaged in commerce" under the FLSA if he directly participates in the actual movement of persons or things in interstate commerce by (1) working for an instrumentality of interstate commerce (i.e., a transportation or communication industry employee) or (2) by regularly using the instrumentalities of interstate commerce in his work (i.e., regular and recurrent use of interstate telephone, telegraph, mail, or travel). See 29 C.F.R. § 776.23(d)(2) (2007); 29 C.F.R. § 776.24 (2007). An employee is not "engaged in commerce" unless his activities are "so directly and vitally related to the functioning of an instrumentality or facility of interstate commerce as to be, in practical effect, a part of it, rather than isolated local activity." Mitchell v. C.W. Vollmer Co., 349 U.S. 427, 429 (1955). In sum, whether an employee is "engaged in commerce" under the FLSA is measured by the cumulative effect of the employee's total activities on interstate commerce. Mitchell v. Lublin, McGaughy Associates, 358 U.S. 207 (1959).
Silk's affidavit (the only evidence offered in support of summary judgment) attests that Silk's job duties at Styling Concepts required her regular use of the channels of interstate commerce such as the internet, the telephone, and the mail (Doc. 21-2 at 1). Silk further recounts her regular use of credit cards to purchase goods from companies outside Florida (Doc. 21-2 at 1). Silk describes her duties as including the regular movement of things (such as furniture) that originated outside Florida (Doc. 21-2 at 1). Finally, Silk states that she regularly used the mail to pay Albino's creditors outside the state of Florida (Doc. 21-2 at 2).
Silk's evidence is directly challenged by Albino's affidavit, which categorically denies that Silk ever used interstate mail in the performance of her duties (Doc. 25-3). Albino states that "Ms. Silk was not allowed to order any products for my company or for my customers, and I would order all of the furniture, fabrics and other material that I used in furnishing the homes of my customers" (Doc. 25-3). Albino also states that "Ms. Silk never paid any of my bills, but simply would write checks, which I would sign and mail to creditors" (Doc. 25-3). Finally, Albino's affidavit states that "[a]t no time did Ms. Silk deliver any furniture or other goods ordered from out of state to any of my customers" (Doc. 25-3) and that she was "incapable of doing so" (Doc. 25-4).
In considering a motion for summary judgment, "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The parties' irreconcilable versions of Silk's job duties present genuine issues of material fact resolvable only by a jury. Accordingly, Silk's motion for summary judgment (Doc. 21) is DENIED.
ORDERED in Tampa, Florida.