Opinion
Case No. 3:21cv3083-TKW-HTC
2023-03-10
Erika SMITH, Plaintiff, v. BIGTOP BINGO, INC., et al., Defendants.
Bradley Syfrett Odom, Odom & Barlow PA, Pensacola, FL, for Plaintiff. Russell Frank Van Sickle, Beggs & Lane RLLP, Pensacola, FL, for Defendants Bigtop Bingo Inc., JM Goodson LLC. Russell Frank Van Sickle, David Lee Mcgee, Beggs & Lane RLLP, Pensacola, FL, for Defendant Tracy Goodson.
Bradley Syfrett Odom, Odom & Barlow PA, Pensacola, FL, for Plaintiff. Russell Frank Van Sickle, Beggs & Lane RLLP, Pensacola, FL, for Defendants Bigtop Bingo Inc., JM Goodson LLC. Russell Frank Van Sickle, David Lee Mcgee, Beggs & Lane RLLP, Pensacola, FL, for Defendant Tracy Goodson. ORDER ON MOTIONS FOR SUMMARY JUDGMENT T. KENT WETHERELL, II, UNITED STATES DISTRICT JUDGE
This is yet another Fair Labor Standards Act (FLSA) case involving a floor worker at a "charitable" bingo establishment. The floor worker, Plaintiff, claims that the establishment's owners and operators, Defendants, violated the minimum wage and overtime provisions of the FLSA and Florida law by not paying her any wages for her work at the establishment between June 2019 and February 2020. A subset of the defendants, the Goodson Defendants, claim that they could not pay Plaintiff a wage because it is illegal to pay bingo workers. That may be true, but as this Court has repeatedly explained to bingo operators (including the Goodson Defendants) over the past several years, they cannot flout the gambling laws by running de facto for-profit bingo establishments and then attempt to use those laws to shield themselves from having to pay their employees in accordance with the FLSA and Florida law.
29 U.S.C. § 201 et seq.
Bigtop Bingo, Inc. (BBI); J.M. Goodson, LLC; Tracy Goodson, individually and d/b/a Bigtop Bingo; and 93 Hood Charitable Group, Inc. Irrevocable Trust (the Trust).
BBI; J.M. Goodson; and Mr. Goodson.
See, e.g., Lowe v. Strobo, No. 3:20cv5904-TKW-MJF, ECF No. 63 at 7-8 (N.D. Fla. Feb. 22, 2022); Johnson v. 5147 Dogwood Charitable Group, Inc., 2021 WL 4144768, at *5 (N.D. Fla. Sept. 7, 2021); Williams v. Bigtop Inv. Grp., Inc., No. 3:20cv2377-TKW-HTC, ECF No. 70 at 17-21 (N.D. Fla. June 7, 2021) [hereafter "Williams Summary Judgment Order"]; Free v. Littlefield Corp., 2020 WL 7421751, at *5 (N.D. Fla. Dec. 11, 2020); see also Williams v. Bigtop Inv. Grp., Inc., 2020 WL 9172086, at *2 n.2 (N.D. Fla. May 6, 2020) (Vinson, J.) (characterizing bingo operator's argument that it stopped paying workers to comply with the state bingo statute as "highly suspect" because that statute had been on the books for 20 years before the operator decided to stop paying wages).
This case is before the Court because Plaintiff and the Goodson Defendants have filed motions for summary judgment. The Goodson Defendants' motion (Doc. 41) seeks summary judgment on all of Plaintiff's claims and argues that the Goodson Defendants are not Plaintiff's employer and that her FLSA claims are preempted by the gambling laws' prohibition on paying bingo workers. Plaintiff's motion (Doc. 43) seeks summary judgment in her favor on the employer and preemption issues, as well as several other issues. The motions are ripe for rulings, and upon due consideration of the motions, the responses (Docs. 45, 46), the Goodson Defendants' reply (Doc. 48), and the evidence submitted by the parties (attachments to Docs. 40, 42, 44, 47), the Court finds for the reasons that follow that both motions are due to be granted in part and denied in part.
I. Facts
Plaintiff has worked as at various bingo establishments since the 1990s. Her work in the bingo business has been her only significant employment over that period, and she relied on the income from that work to support herself.
Before mid-2018, Plaintiff was paid an hourly wage for her work, and she also received cash tips from bingo players.
In mid-2018, Mr. Goodson made the decision to stop paying workers at his bingo establishments, including Bigtop Bingo, after another bingo operator, Larry Masino, was convicted of violating the federal gambling laws in connection with his operation of a "charitable" bingo establishment in Ft. Walton Beach.
For a discussion of Mr. Masino's illegal bingo operation, see United States v. Masino, 2021 WL 3235301 (11th Cir. July 30, 2021), United States v. Masino, 869 F.3d 1301 (11th Cir. 2017), and United States v. Masino, 2019 WL 1045179 (N.D. Fla. Mar. 5, 2019).
At the time, Mr. Goodson owned and operated Bigtop Bingo through BBI and/or J.M. Goodson. Mr. Goodson had been the sole owner of BBI since 2012 or 2013, and he was also the sole owner of J.M. Goodson.
Plaintiff was working as a "fill-in worker" at Bigtop Bingo at the time, meaning that she would be called into work when a scheduled worker was unable to come in for whatever reason. She attended the meeting at which Mr. Goodson announced to the employees of Bigtop Bingo that he was no longer going to be paying wages and that the workers were all were going to become "volunteers" and would only earn tips. Plaintiff does not recall signing any acknowledgement or agreement that she would be a tips-only volunteer, and the Goodson Defendants did not produce any such document.
At some point thereafter, Plaintiff left Bigtop Bingo and started working full-time at another bingo establishment, Goldmine Bingo. She was a "tips only" worker at that establishment.
Mr. Goodson testified that even though he knew the minimum wage laws applied to him and that "it's against the law to not pay somebody," he stopped paying the employees at his bingo establishments in order to comply with the gambling laws—namely the Florida bingo statute, § 849.0931, Fla. Stat.—so that he was not convicted and sent to prison like Mr. Masino. Other bingo halls in the local area did the same thing.
In the summer of 2019, Bigtop Bingo's manager approached Plaintiff about returning to work at Bigtop Bingo full time. Plaintiff quit her job at Goldmine Bingo and returned to Bigtop Bingo, starting on June 15, 2019.
Plaintiff worked at Bigtop Bingo as a "tips only" worker until February 22, 2020, when she resigned to take a job at another bingo hall that would pay her a wage plus tips.
Plaintiff was a "floor worker" at Bigtop Bingo. Her job responsibilities included opening the bingo hall, cleaning the premises throughout the day, calling bingo numbers, verifying winners, making payouts, selling various games of chance, assisting customers, and closing the hall at the end of the day.
Under the Florida bingo statute, the bingo games were supposed to be run by members of the charities sponsoring the games, but there is no evidence that Plaintiff (or anyone else working at Bigtop Bingo) was a bona fide member of the charities sponsoring the games at the establishment. Instead, the Bigtop Bingo workers ran the bingo games and the charities simply received periodic checks representing the net proceeds of the games conducted on their behalf at the establishment.
The workday at Bigtop Bingo started at 10:00 a.m. for the first shift and 4:00 or 4:30 p.m. for the second shift. A typical shift was six to seven hours, and a double shift lasted all day—from opening of the establishment to its closing. Work was continuous throughout the day—there was no downtime once the bingo games began, and breaks were not permitted. Bigtop Bingo did not have a scheduled closing time, but floor workers could not leave until all customers had left and the workers had all finished their jobs, which was often 10:00 p.m. or later.
Bigtop Bingo did not keep or maintain time records to track the hours that Plaintiff or the other floor workers worked.
Plaintiff prepared a calendar (Doc. 40-5 at 9-17) estimating the days and hours that she worked at Bigtop Bingo between June 2019 and February 2020, and based on those estimates, Plaintiff claims that she is owed $14,157.41 in unpaid wages and unpaid overtime, plus an equal amount in liquidated damages. The hours on some of the days that Plaintiff claims to have worked double shifts do not match up with records presented by her co-workers in their FLSA suits against Defendants, even though they (like Plaintiff) each claimed to have worked double shifts on those days.
Both before and after wages stopped at Bigtop Bingo, the floor workers routinely received cash tips from the bingo players. The tips Plaintiff received were pooled with the tips received by other floor workers and then divided up among them at the end of each shift. The establishment's managers sometimes took a percentage of the pooled tips before distributing the remainder to the floor workers.
Before the events giving rise to this case, BBI entered into "leases" with the various charities that (at least on paper) sponsored the bingo games at Bigtop Bingo.
BBI was administratively dissolved in September 2016, but there is evidence that it kept doing business after that date. For example, there is evidence that BBI continued to pay the workers at Bigtop Bingo until at least July 25, 2018—although the Goodson Defendants claim that the fact that BBI was listed on workers' paychecks was an error by a third-party payroll vendor and that the workers' pay actually came from J.M. Goodson. There is also evidence that the existing leases between BBI and various charities ran through December 31, 2018, that bingo proceeds were deposited in BBI's bank account until as late as January 6, 2019, and that BBI purchased a credit card machine for Bigtop Bingo on January 25, 2019.
From time of BBI's dissolution until January 1, 2019, Bigtop Bingo was owned and operated (at least on paper) by J.M. Goodson. However, the lines between J.M. Goodson and BBI as separate legal entities are somewhat blurred. For example, there is evidence that BBI and J.M. Goodson have used the same Federal Employer Identification number for tax purposes.
On October 1, 2018, the Trust was formed to operate Bigtop Bingo, although there is evidence that the Trust did not take over operations until January 1, 2019, as a result of the Hurricane Michael.
The "trust operations officers" of the Trust (first William Bass, then William Perry) oversaw operation of Bigtop Bingo, and their firms paid the bills and performed accounting functions for the establishment. On-site managers, who reported to the trust operations officers, continued to run the day-to-day bingo operations, including worker scheduling and discipline. There is also evidence that the managers sometimes decided to pay workers "bonuses" after the Trust took over.
Mr. Perry testified that after the Trust took over, Mr. Goodson no longer had authority to decide whether (and, if so, how much) to pay the workers, and consistent with that testimony, there is evidence that during the time Plaintiff worked at Bigtop Bingo, several employment and disciplinary decisions were made by Mr. Perry and the on-site managers without Mr. Goodson's involvement. However, there is also evidence that the formation of the Trust was largely a "paper restructuring" of the operations at Bigtop Bingo and that Mr. Goodson remained actively involved in the management of the establishment during the period that Plaintiff worked there as a full-time floor worker.
For example, Plaintiff testified that she was told to wait on a call from Mr. Goodson in June 2019 to discuss her return to Bigtop Bingo and that when she put in her two-weeks' notice in February 2020, she was told by Mr. Goodson that she could no longer work at any of his bingo establishments. There is also evidence that Mr. Goodson was consulted and provided his approval of other employment decisions made around the time Plaintiff was hired; that Mr. Goodson told on-site managers not to hire anyone who had filed a lawsuit against him; and that throughout 2019, Mr. Goodson required Bigtop Bingo's on-site managers to regularly communicate with him concerning sales numbers even though those numbers were also provided to Mr. Perry, as the trust operations officer.
Additionally, there is evidence of conversations between on-site managers and Mr. Goodson pertaining to Bigtop Bingo's operations during the time Plaintiff worked there as a full-time floor worker. Those conversations involved issues such as giveaways to players and the budget for supplies for Bigtop Bingo's anniversary celebration, but it is unclear whether those conversations took place because Mr. Goodson's input or approval was required or if the conversations merely constituted Mr. Goodson's gratuitous advice to those who were managing Bigtop Bingo's operations. However, one manager testified that she viewed Mr. Goodson as "one of [her] bosses" throughout 2019 and that she communicated with him (and not the trust operation officers of the Trust) "[o]n issues of importance." Also, another manager testified that she "communicated directly with Mr. Goodson on all matters [she] felt to be of importance" beginning in 2019, and she described Mr. Goodson as "the boss" and stated that "[w]hatever he told us to do, we did."
After the Trust took over the operation of Bigtop Bingo, J.M. Goodson continued as the establishment's landlord, and in that capacity, J.M. Goodson was responsible for maintaining the establishment's premises. This might explain why, even after the Trust took over, the on-site managers at Bigtop Bingo continued to reach out to Mr. Goodson—at least about issues with the building or the premises.
The lease payments charged by J.M. Goodson were $30,000 per month, which according to other evidence in the record, was more than six times the fair market value of the rented space. J.M. Goodson often reduced the rent when the bingo proceeds were not sufficient to pay it in full.
The higher-than-market rent ensured that the bulk of the profits from the bingo operations at Bigtop Bingo continued to flow to Mr. Goodson. Thus, the creation of the Trust and the "paper restructuring" of the operations at Bigtop Bingo does not appear to have solved the problem that Mr. Goodson was trying to solve (i.e., avoiding ending up like Mr. Masino) because, as the Court previously explained, "what got the Masinos in trouble was not so much that they were paying their employees to operate the bingo games but that they were profiting (through very high lease payments) from bingo games that were sponsored by charities but were conducted without the charities' direct involvement in the games." Williams Summary Judgment Order at 6 n.6; accord Johnson, 2021 WL 4144768, at *2 n.4.
Bigtop Bingo's revenue fluctuated year-to-year, but it is undisputed that its annual gross sales exceeded $500,000 during the relevant time-period.
It is undisputed that the games of chance that Plaintiff and the other floor workers sold at Bigtop Bingo had moved in interstate commerce.
The Trust stopped operating Bigtop Bingo in mid-January 2022, apparently because Mr. Perry refused to be involved anymore. Mr. Goodson also got completely out of the bingo business around the same time.
II. Procedural Background
In November 2021, Plaintiff filed suit in this Court against the Goodson Defendants, the Trust, Mr. Perry, and his accounting firm. The following month, after a suggestion of bankruptcy was filed as to Mr. Perry and his accounting firm, Plaintiff filed an amended complaint (Doc. 5) against only the Goodson Defendants and the Trust. The amended complaint is the operative complaint.
The amended complaint alleges that Defendants violated the FLSA (Count I), the Florida Minimum Wage Act (FMWA) (Count III), and the Florida Constitution (Count IV) by not paying her the required minimum wage for her work at Bigtop Bingo from June 2019 through February 2020. The amended complaint also alleges that Defendants violated the FLSA by not paying her overtime wages when she worked more than 40 hours per week during that time-period (Count II).
Art. X, § 24, Fla. Const.
The Goodson Defendants filed an answer (Doc. 13) denying the claims against them and asserting various affirmative defenses. The Trust did not file an answer or otherwise respond to the amended complaint, but Plaintiff never sought a default against the Trust under Fed. R. Civ. P. 55(a).
This Order will direct the Clerk to enter a default against the Trust.
Plaintiff and the Goodson Defendants engaged in an extended period of discovery, which closed in December 2022. Thereafter, Plaintiff and the Goodson Defendants filed motions for summary judgment. The motions are fully briefed and are ripe for rulings. No hearing is necessary to rule on the motions.
III. Standard of Review
"The court shall grant summary judgment if the movant shows that 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). An issue of fact is "material" if it would change the outcome of the litigation, and a dispute about a material fact is "genuine" if the evidence is such that it could lead a reasonable factfinder to find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
When reviewing a motion for summary judgment, the Court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 594 (11th Cir. 1995). The movant "bears the initial burden to show, by reference to materials on file, that there are no genuine issues of material fact to be determined at trial." Mullins v. Crowell, 228 F.3d 1305, 1313 (11th Cir. 2000). Once the movant has satisfied that burden, "the burden shift[s] to the nonmoving party to demonstrate that summary judgment would be inappropriate because there exists a material issue of fact." Id. The Court's role at the summary judgment stage is not to weigh the evidence, but rather to "conclude whether [the evidence] is so one-sided that the result of any trial is inevitable." Turner v. Phillips, 2022 WL 458238, at *4 (11th Cir. Feb. 15, 2022).
The same standards apply when reviewing cross-motions for summary judgment. See United States v. Oakley, 744 F.2d 1553, 1555-56 (11th Cir. 1984) (quoting Bricklayers, Masons & Plasterers Int'l Union of Am., Loc. Union No. 15, Orlando, Fla. v. Stuart Plastering Co., 512 F.2d 1017, 1023 (5th Cir. 1975)). Thus, when reviewing Plaintiff's motion for partial summary judgment, the Court must view the evidence and draw all reasonable inferences in favor of Defendants; and when reviewing the Goodson Defendants' motion for summary judgment, the Court must view the evidence and draw all reasonable inferences in favor of Plaintiff. However, cross-motions for summary judgment can be an indication that there are no material facts in dispute on the issues framed by the motions. Id.
IV. Analysis
The FLSA requires employers to pay their employees not less than the minimum wage set by federal law. See 29 U.S.C. § 206. It also requires employers to pay their employees overtime pay for any hours worked beyond a 40-hour workweek at a rate not less than 1.5 times the employee's regular rate of pay. Id. § 207(a).
The Florida Constitution and the FMWA require Florida employers to pay their employees not less than the annually adjusted "state minimum wage," which exceeds the federal minimum wage. See art. X, § 24, Fla. Const.; § 448.110(3)-(4), Fla. Stat. Minimum wage claims under the Florida Constitution and the FMWA are governed by the same legal standards as FLSA claims. See Llorca v. Sheriff, Collier Cnty., Fla., 893 F.3d 1319, 1328 (11th Cir. 2018).
To prevail on her claims, Plaintiff must establish that "(1) [s]he is employed by the defendant, (2) the defendant engaged in interstate commerce, and (3) the defendant failed to pay [her] minimum or overtime wages." Freeman v. Key Largo Volunteer Fire & Rescue Dep't., Inc., 494 F. App'x 940, 942 (11th Cir. 2012) (citing Morgan v. Fam. Dollar Stores, Inc., 551 F.3d 1233, 1277 n.68 (11th Cir. 2008)).
Here, the second and third elements are met because it is undisputed that Defendants engaged in interstate commerce and that they did not pay Plaintiff any wages (much less minimum wage or overtime pay) for her work as a full-time floor worker at Bigtop Bingo. However, the first element is in dispute and the parties filed what amount to cross-motions for summary judgment on the question of whether the Goodson Defendants were Plaintiff's employer for FLSA purposes.
The Court will address that issue first. Then, the Court will address the parties' de facto cross-motions for summary judgment on the question of whether Plaintiff's claims are "preempted" by the gambling laws. Then, the Court will address the affirmative defenses on which Plaintiff seeks summary judgment. Finally, the Court will address Plaintiff's argument that she is entitled to partial summary judgment on the days and hours that she worked—and, thus, the unpaid wages she is owed.
A. Employer-Employee Relationship
Plaintiff argues in her motion for partial summary judgment that she was an employee of each of the defendants who operated and controlled Bigtop Bingo during the period that she worked as a full-time floor worker—including the Goodson Defendants. The Goodson Defendants respond (and argue in their motion for summary judgment) that the undisputed evidence establishes that only the Trust was Plaintiff's employer during the pertinent time-period.
The FLSA broadly defines the term "employee" to mean "any individual employed by an employer," 29 U.S.C. § 203(e)(1), and it defines "employer" to include "any person acting directly or indirectly in the interest of an employer in relation to an employee," id. § 203(d). For purposes of the FLSA, an employer can be either an individual or a business entity, so long as there is sufficient operational control over the enterprise. See Lamonica v. Safe Hurricane Shutters, 711 F.3d 1299, 1310 (11th Cir. 2013); Alvarez Perez v. Sanford-Orlando Kennel Club, Inc., 515 F.3d 1150, 1160 (11th Cir. 2008). FLSA regulations also recognize that multiple persons or entities may be an individual's "employers" under the joint employment doctrine. See 29 C.F.R. § 791.2.
Determination of employment status under the FLSA turns on the "economic reality" of the alleged employment relationship. Tony & Susan Alamo Found. v. Sec'y of Labor, 471 U.S. 290, 301, 105 S.Ct. 1953, 85 L.Ed.2d 278 (1985); Layton v. DHL Express (USA), Inc., 686 F.3d 1172, 1177 (11th Cir. 2012); Brouwer v. Metro. Dade Cnty., 139 F.3d 817, 819 (11th Cir. 1998). "The economic reality test includes inquiries into whether the alleged employer (1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records." Villarreal v. Woodham, 113 F.3d 202, 205 (11th Cir. 1997) (quotation omitted). Other relevant considerations are the putative employee's "economic dependence" upon the employer, Freund v. Hi-Tech Satellite, Inc., 185 F. App'x 782, 783 (11th Cir. 2006) (quoting Usery v. Pilgrim Equip. Co., 527 F.2d 1308, 1311 (5th Cir. 1976)), and whether the putative employee is working for "his personal purpose or pleasure," Alamo, 471 U.S. at 295, 105 S.Ct. 1953 (quoting Walling v. Portland Terminal Co., 330 U.S. 148, 152, 67 S.Ct. 639, 91 L.Ed. 809 (1947)), or with "an expectation of in-kind benefits in exchange for services," Villarreal, 113 F.3d at 205.
Here, the parties appear to agree that whoever was in operational control of Bigtop Bingo during the pertinent time-period was, as a matter of economic reality, Plaintiff's employer because it is undisputed that she expected renumeration for her work and that she relied on her earnings from Bigtop Bingo as her sole means of support. However, the parties disagree about who was operating Bigtop Bingo during the pertinent time-period—with Plaintiff arguing that it was all of the defendants and the Goodson Defendants arguing that it was only the Trust and not them. Each defendant will be considered in turn.
1. BBI
There is no evidence that BBI was still involved in Bigtop Bingo's operations when Plaintiff was hired in June 2019. Rather, the latest evidence of BBI's involvement is from January 25, 2019, when BBI purchased a credit card machine for Bigtop Bingo. There is a factual dispute concerning the nature and extent of BBI's involvement in Bigtop Bingo between its alleged dissolution in 2016 and January 2019, but that dispute is immaterial to the determination as to whether BBI was Plaintiff's employer because she did not begin her relevant period of employment at Bigtop Bingo until June 2019.
Accordingly, BBI is not Plaintiff's employer for FLSA purposes.
2. J.M. Goodson
There is no evidence that J.M. Goodson (as an entity distinct from Mr. Goodson) participated in the operation of Bigtop Bingo during the time-period Plaintiff worked as a full-time floor worker. Rather, the evidence shows that beginning in 2019, J.M. Goodson merely received rental payments and acted as a landlord by handling issues with the building and premises. Even if the exorbitant rent amounts to participation in or profiting from illegal gambling activities, it is unrelated to the day-to-day operation of Bigtop Bingo and is not indicative of J.M. Goodson being Plaintiff's employer.
The Court did not overlook Plaintiff's argument that there is evidence from which a jury could find that J.M. Goodson was responsible for paying her wages because Mr. Goodson testified in his deposition that the "rent" paid to J.M. Goodson included "employee wages." However, the Court finds this argument unpersuasive for three reasons.
First, Mr. Goodson did not explicitly testify in his deposition that the rent covers the payment of wages at Bigtop Bingo. Rather, in response to a question from Plaintiff's counsel as to whether the rent "pays the wages," Mr. Goodson answered that it "[p]ays materials, cleaning, everything." Doc. 44-1 at 6-7.
Second, it would make no sense to say that rent paid to J.M. Goodson was intended to cover Plaintiff's wages because this case is about the undisputed fact that Plaintiff was not paid a wage by anyone. Moreover, to the extent that the rent paid to J.M. Goodson might have covered someone else's wages, that is irrelevant to the economic reality of Plaintiff's employment relationship (or lack thereof) with J.M. Goodson.
Third, the discussion in Mr. Goodson's deposition about rent appears to discuss leases for 2018 that at least on their face are between BBI (not J.M. Goodson) and various charities. See id. at 18-37. These are different from the October 2018 through September 2019 commercial lease agreement between J.M. Goodson and the Trust that was in effect during the time-period that Plaintiff worked as a full-time floor worker at Bigtop Bingo. See Doc. 40-2 at 18-25.
The Court also did not overlook Plaintiff's argument that J.M. Goodson's similar net income after the restructuring (in the form of "rent" rather than bingo proceeds) shows that J.M. Goodson was more than a mere landlord and that it was actually a façade to allow Mr. Goodson to continue to profit from bingo. However, even if that is true, it is not evidence of an employer-employee relationship between J.M. Goodson and Plaintiff because there is no evidence that J.M. Goodson as an entity (as compared to Mr. Goodson as an individual) had anything to do with decisions related to Plaintiff's employment.
Accordingly, J.M. Goodson is not Plaintiff's employer for FSLA purposes.
3. Mr. Goodson
Mr. Goodson claimed that he was not involved in the operation of Bigtop Bingo after the Trust took over in late-2018 or January 2019. However, there evidence suggesting otherwise from which a jury could find that Mr. Goodson maintained the requisite level of supervision and control over Bigtop Bingo to be considered Plaintiff's employer for FLSA purposes.
Specifically, during the time-period that Plaintiff worked at Bigtop Bingo as a full-time floor worker, there is evidence that Mr. Goodson was involved in making (or at least approving) hiring and firing decisions, including Plaintiff's. There is also evidence that Mr. Goodson was still actively involved in the operation of Bigtop Bingo during the pertinent time-period because the establishment's managers testified that they understood him to still be in charge and that they communicated with him regularly (up to daily) concerning Bigtop Bingo's operations and revenue. Also, Mr. Goodson made the initial decision to stop paying workers a year before Plaintiff became a full-time worker at Bigtop Bingo, and that decision remained in effect (seemingly with Mr. Goodson's approval) throughout the time-period that Plaintiff was a full-time floor worker at the establishment.
To be sure, there is also evidence from which a jury could find that the Trust alone was responsible for determining whether to continue not paying Bigtop Bingo's workers and managing the day-to-day operations during the time-period that Plaintiff worked as a full-time floor worker. For example, both Mr. Perry and Mr. Goodson testified that Mr. Goodson no longer had the authority to make decisions concerning operations at Bigtop Bingo after the Trust assumed control and that he did not do so.
The Court cannot resolve the conflicts in the evidence at the summary judgment stage. It will be up to the jury to weigh the evidence and decide whether Mr. Goodson continued to exercise control over the operation of Bigtop Bingo during the time-period that Plaintiff worked as a full-time floor worker even though, on paper, the Trust was legally responsible for operating the establishment during that period.
The Court recognizes that "[i]nfrequent assertions of minimal oversight do not constitute the requisite degree of supervision" to find the existence of an employer-employee relationship. Layton, 686 F.3d at 1179 (quoting Martinez-Mendoza v. Champion Int'l Corp., 340 F.3d 1200, 1211 (11th Cir. 2003)). However, that does not help Mr. Goodson at this stage of the case because, as discussed above, there is evidence from which a jury could find that his involvement in Bigtop Bingo during the pertinent time-period was daily (or close to it), which is not "minimal" or "infrequent."
In sum, there are material factual disputes regarding the nature and extent of Mr. Goodson's involvement in the operation of Bigtop Bingo during the time-period that Plaintiff was employed as a full-time floor worker that preclude summary judgment in favor of either party on the issue of whether Mr. Goodson was Plaintiff's employer for FLSA purposes.
4. The Trust
The undisputed evidence establishes that starting in January 2019 at the latest, the Trust had the legal authority to manage Bigtop Bingo on a day-to-day basis and that it at least partially did so. It is also undisputed that Trust was at least partially responsible for continuing not to pay Plaintiff and the other floor workers after it took over operations at Bigtop Bingo. See Johnson, 2021 WL 4144768, at *7; Williams Summary Judgment Order at 28. Accordingly, the Trust was Plaintiff's employer for FLSA purposes during the relevant time-period, either alone or jointly with Mr. Goodson.
Arguably, the Court could base this conclusion on the fact that the Trust is in default because it failed to respond to the amended complaint. However, the Court considered the claim against the Trust on the merits because a Clerk's default was never requested or entered—and because the Court cannot grant summary judgment by default based on the Trust's failure to respond to Plaintiff's motion. See United States v. One Piece of Real Prop. Located at 5800 SW 74th Ave., Mia., Fla., 363 F.3d 1099, 1101-02 (11th Cir. 2004).
* * *
In sum, for the reasons stated above, BBI and J.M. Goodson are entitled to summary judgment because there is no evidence from which a jury could find that they were Plaintiff's employer for FLSA purposes; Plaintiff is entitled to partial summary judgment on the issue of whether the Trust was her employer for FLSA purposes because it is undisputed that the Trust had the legal authority to manage Bigtop Bingo during the pertinent time-period; and neither party is entitled to summary judgment on the issue of whether Mr. Goodson was Plaintiff's employer for FLSA purposes because there is conflicting evidence on that issue.
B. Preemption
The Goodson Defendants argue in their motion for summary judgment (and in response to Plaintiff's motion) that the FLSA's wage and hour provisions are preempted by the criminal laws prohibiting gambling. Plaintiff responds that the FLSA is not preempted by the gambling laws, and in her motion for partial summary judgment, Plaintiff seeks judgment in her favor on the Goodson Defendants' twelfth affirmative defense asserting that issue.
The Court has considered (and rejected) the argument that the FLSA is preempted by the criminal gambling laws in multiple prior cases. See, e.g., Johnson, 2021 WL 4144768, at *5; Williams Summary Judgment Order at 17-21; Free, 2020 WL 7421751, at *5. The Court sees no reason to reconsider those rulings in this case, and for sake of brevity, the Court simply incorporates by reference the analysis from those prior decisions into this Order.
Suffice it to say that the Goodson Defendants' latest spin on the preemption argument—i.e., that regardless of whether they could have (or must have) paid Plaintiff for non-bingo activities, they were by law not required to pay Plaintiff for the time she spent operating bingo—is no more persuasive than the previous arguments the Court considered and rejected. Indeed, putting aside the fact that Plaintiff was not paid for any of the time that she worked at Bigtop Bingo, the Goodson Defendants' argument that Congress would have found it "outlandish" that "the wage and hour laws they were enacting would be read to require people to commit crimes in order to comply" rests on the flawed assumption that they can legally operate what amounts to a for-profit bingo establishment in which the bingo games are not being run by legitimate volunteers who are bona fide members of the charities that are supposedly sponsoring the games.
Stated another way, the alleged "irreconcilable conflict" between the FLSA and the criminal gambling laws on which the Goodson Defendants' "preemption" argument is based only arises because they were engaged in what appears to be an illegal bingo operation. That, however, is Goodson Defendant's problem—not Plaintiff's—because they do not get to pick and choose which law to follow and which to ignore and "[e]mployers are not excused from complying with [the FLSA] just because their business practices are federally prohibited." Kenney v. Helix TCS, Inc., 939 F.3d 1106, 1112 (10th Cir. 2019).
C. Affirmative Defenses
Plaintiff seeks summary judgment on the Goodson Defendants' second, fourth, fifth, sixth, eleventh, thirteenth, and fourteenth affirmative defenses. Each will be discussed in turn.
1. Coverage
As their second affirmative defense, the Goodson Defendants assert that their bingo operations are not subject to the FLSA because "they were not primarily engaged in competition in the public with ordinary commercial enterprises" since the only bingo establishments authorized by Florida law are charitable (i.e., non-commercial) establishments. Putting aside the fact that Bigtop Bingo was a de facto commercial bingo establishment because the charities that, on paper, were sponsoring the bingo games were not actually involved conducting the games, the Court has repeatedly rejected this argument in prior cases because, as a matter of economic reality, Bigtop Bingo and other local "charitable" bingo establishments compete with other commercial gambling and entertainment businesses for their customers' discretionary income. See, e.g., Johnson, 2021 WL 4144768, at *6; Williams Summary Judgment Order at 22-23. The Court sees no reason to reconsider that ruling in this case.
Accordingly, Plaintiff is entitled to summary judgment on the Goodson Defendants' second affirmative defense.
2. Good Faith and Willfulness
As their fourth affirmative defense, the Goodson Defendants assert that they acted in good faith, and as their fifth affirmative defense, they argue that any violations related to Plaintiff were not willful. The eleventh affirmative defense also raises these issues. Although the issues of "good faith" and "willfulness" differ in terms of effects and burdens, they are interrelated and are often analyzed together. See Alvarez Perez, 515 F.3d at 1165 (holding that for FLSA purposes, good faith and willfulness are "mutually exclusive").
"Good faith" is relevant to the determination of whether the employer is liable for liquidated damages in addition to unpaid wages, see 29 U.S.C. § 260, and "willfulness" is relevant to the determination of the applicable statute of limitations, id. at § 255(a).
Defendants have the burden to prove objective and subjective good faith, see Rodriguez v. Farm Stores Grocery, Inc., 518 F.3d 1259, 1272 (11th Cir. 2008), whereas Plaintiff has the burden to establish willfulness, see Davila v. Menendez, 717 F.3d 1179, 1185 (11th Cir. 2013).
Plaintiff argues that the undisputed evidence establishes that the Goodson Defendants' violations were willful and not in good faith because they knew that it would violate the FLSA to stop paying floor workers, but they chose to do so anyway. This issue is moot as to BBI and J.M. Goodson because, as discussed above, there is no evidence from which a jury could find that those entities were Plaintiff's employer for FLSA purposes. And, because factual disputes remain as to whether Mr. Goodson was Plaintiff's employer for FLSA purposes, it is premature to decide whether his actions were in good faith and willful. See Williams Summary Judgment Order at 36 n.23.
That said, it is hard to imagine, given Mr. Goodson's admission that he knew that it was unlawful not to pay workers, that his choice to stop doing so could possibly constitute good faith and/or not be a willful violation of law. See Johnson, 2021 WL 4144768 at *10 (rejecting argument that bingo operators' decision to stop paying floor workers in order to comply with Florida bingo statute was made in good faith because "rather than the relying on a plausible understanding of the FLSA, Defendants hinge their entire argument on their understanding of the Florida bingo statute, which is not relevant to their subjective intentions (or lack thereof) to ascertain the mandates of the FLSA").
With respect to the Trust, although there is evidence that it ultimately controlled whether floor workers were paid, Plaintiff cites no evidence and advances no argument on good faith or willfulness specific to the Trust, but rather focuses on the willfulness and lack of good faith on the part of "Goodson and the companies he controlled." Thus, there is no basis for the Court to grant summary judgment against the Trust on the issues of good faith or willfulness. Cf. Williams Summary Judgment Order at 38 (concluding that the bingo floor worker in that case was not entitled to summary judgment on Mr. Perry's willfulness or lack of good faith because there was evidence that he thought the floor workers were volunteers).
Accordingly, Plaintiff is not entitled to summary judgment on the Goodson Defendants' fourth, fifth, and eleventh affirmative defenses.
3. Tip Credit
As their sixth affirmative defense, the Goodson Defendants assert the tips Plaintiff received cash tips from the bingo players while working as a floor worker met or exceeded the minimum wage. Plaintiff responds that an employee's receipt of tips does not excuse an employer from paying minimum wage when tips are split with management, see 29 U.S.C. § 203(m)(2)(B), or when the employer pays the employee no wage at all, see P&K Rest. Enter., LLC v. Jackson, 758 F. App'x 844, 849 (11th Cir. 2019). Both of those circumstances are present here.
Accordingly, Plaintiff is entitled to summary judgment on the Goodson Defendants' sixth affirmative defense.
4. Statute of Limitations
As their thirteenth affirmative defense, the Goodson Defendants argue that the FLSA claims are barred by the statute of limitations. Relatedly, as their fourteenth affirmative defense, the Goodson Defendants argue that the Court lacks pendent jurisdiction over the state law claims because the statute of limitations has expired on the federal claims.
Plaintiff argues that these defenses are meritless because it is undisputed that the complaint was timely filed. The Court agrees.
The statute of limitations for a FLSA claim is two years, "except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued." 29 U.S.C. § 255(a). Here, although there is a dispute as to whether the alleged violations of the FLSA were willful, it is undisputed that the complaint was filed within two years of at least a portion of the time-period that Plaintiff worked as a full-time floor worker at Bigtop Bingo. See Knight v. Columbus, Ga., 19 F.3d 579, 581-82 (11th Cir. 1994) (concluding that each paycheck the plaintiff received that did not include payment for time worked was a separate violation of the FLSA, which gave rise to a new statute of limitations period as to that event, and that only the wages owed from paychecks received during the relevant statute of limitations period could be recovered).
If it turns out that the FLSA violations were not willful, Plaintiff would not be able to recover under the FLSA for any unpaid wages between June 15 and November 21, 2019—which is more than two years before the original complaint was filed. But, if it turns out that the violations were willful, she will be able to recover under the FLSA for her unpaid wages over the entire time-period that she worked as a full-time floor worker because the entire period was within three years of the date the original complaint was filed. And, irrespective of whether the FLSA violations were willful, that will have no bearing on what Plaintiff can recover on the state law claims because the entire time-period she worked as a full-time floor worker at Bigtop Bingo was within the applicable state statute of limitations. See § 95.11(2)(d), (3)(q), Fla. Stat. (providing a five-year statute of limitations for willful violations of the FMWA and a four-year statute of limitations for non-willful violations).
Accordingly, Plaintiff is entitled to summary judgment on the Goodson Defendants' thirteenth and fourteenth affirmative defenses.
D. Days and Hours Worked and Unpaid Wages Owed
The employee asserting a claim under the FLSA has the burden to prove the hours that he or she worked. See Allen v. Bd. of Pub. Educ. for Bibb Cnty., 495 F.3d 1306, 1315 (11th Cir. 2007). However, in the absence of proper documentation and recordkeeping by the employer, courts apply a burden-shifting approach so as not to incentivize poor record keeping or penalize employees by denying recovery for uncompensated work. Id. at 1315-16 (quoting Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946)).
Under this burden-shifting approach, the employee must first "produce[ ] sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference." Id. at 1316 (quoting Anderson, 328 U.S. at 687, 66 S.Ct. 1187). Then the burden shifts to the employer to "bring forth either evidence of the precise amount of work performed or evidence to negate the reasonableness of the inference to be drawn from the employee's evidence." Id. "If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result be only approximate." Id. (quoting Anderson, 328 U.S. at 688, 66 S.Ct. 1187).
Here, it is undisputed that no timesheets or other similar records were kept for Plaintiff and the other floor workers at Bigtop Bingo. Likewise, there is no dispute that Plaintiff worked at Bigtop Bingo from June 15, 2019, to February 22, 2020, and the Goodson Defendants have pointed to no evidence to rebut her calendar listing the days she worked within that time-period.
There is, however, a factual dispute as to the hours that Plaintiff claims to have worked on some of those days. Specifically, on some of the days that Plaintiff claimed to have worked double shifts (e.g., 6/17/19, 7/1/19, 8/19/19, 9/2/19, 9/16/19, 9/30/19, 10/7/19, 10/21/19, 11/4/19, 12/2/19, 12/16/19, 1/6/20, 2/3/20), the hours she listed on her calendar do not match up with the hours her co-workers claimed to have worked on those days even though the hours should have matched because it was undisputed that none of the workers were allowed to leave at the end of the night until everyone's work was completed. Perhaps these discrepancies can be explained away, but at this point, the Court must view this evidence in the light most favorable to the Goodson Defendants. And, when viewed in that light, a reasonable jury could find from this evidence that Plaintiff did not work as many hours as she claims to have worked on those days.
Accordingly, Plaintiff is entitled to summary judgment as to the days that she worked because there is no conflicting evidence on that issue, but she is not entitled to summary judgment as to the hours that she worked on the specific days listed above because there is conflicting evidence as to whether she actually worked the number of hours that she claimed on those days.
V. Conclusion
In sum, for the reasons stated above, it is ORDERED that:
1. The Goodson Defendants' motion for summary judgment (Doc. 41) is:
a. GRANTED in part, and the Court finds as a matter of law that BBI and J.M. Goodson were not Plaintiff's employers for FLSA purposes; and
b. DENIED in all other respects.
2. Plaintiff's motion for partial summary judgment (Doc. 43) is:
a. GRANTED in part, and the Court finds as a matter of law that:
i. the Trust was Plaintiff's employer for FLSA purposes;
ii. Plaintiff's claims are not preempted by criminal gambling laws;
iii. Bigtop Bingo was not exempt from coverage under the FLSA;
iv. the tips received by Plaintiff from bingo players cannot be used to offset any minimum or overtime wages she is owed by her FLSA employer;
v. Plaintiffs' FLSA claims are not barred by the statute of limitations; and
vi. Plaintiff worked the days and hours reflected on her calendar, except on those specific days listed above for which there remains a factual dispute as to the number of hours worked.
b. DENIED in all other respects.
3. The claims in the amended complaint against Defendants Bigtop Bingo, Inc. and J.M. Goodson, LLC are DISMISSED with prejudice, and the Clerk shall terminate them as defendants in CM/ECF.
4. The Clerk shall enter a default against Defendant 93 Hood Charitable Group Inc. Irrevocable Trust under Fed. R. Civ. P. 55(a).
5. Within 7 days from the date of this Order, the remaining parties shall confer and provide the Court several mutually agreeable dates and times over the next two weeks for a telephonic case management conference to set this case for trial.
DONE and ORDERED this 10th day of March, 2023.