Marius Arilus v. Joseph A. DiEmmanuele, Jr., Inc.

522 F. App'x 881
CourtCourt of Appeals for the Eleventh Circuit
DecidedJuly 8, 2013
Docket12-15324
StatusUnpublished
Cited by1 cases

This text of 522 F. App'x 881 (Marius Arilus v. Joseph A. DiEmmanuele, Jr., Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marius Arilus v. Joseph A. DiEmmanuele, Jr., Inc., 522 F. App'x 881 (11th Cir. 2013).

Opinion

PER CURIAM:

Marius Arilus appeals the district court’s grant of summary judgment in favor of his employers on his claim under the Fair Labor Standards Act. He contends that there are genuine issues of material fact about whether his employment was covered by the Act.

I.

Before his termination in October 2008, Arilus worked for Joseph A. DiEmmanuele, Jr. (JAD) Inc., a lawn maintenance service, and Gardens of Eden Nursery, LLC, a tree nursery. Both companies are owned by Joseph A. DiEmmanuele, Jr. On July 23, 2009, Arilus, along with two other plaintiffs who have since settled their claims, filed an action seeking relief under the Fair Labor Standards Act for unpaid overtime wages.

After discovery the employers filed a motion for summary judgment, which the district court granted. The court assumed, without deciding, that JAD Inc. and Gardens of Eden Nursery were joint employers. The court then concluded that the employers did not have to comply with the Fair Labor Standards Act’s requirements because their combined annual sales were less than $500,000 during the relevant years.

II.

We review de novo a district court’s grant of summary judgment, viewing all evidence and drawing all reasonable inferences in favor of the nonmoving party. Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1314 (11th Cir.2011). Summary judgment is proper only when there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Id.

The Fair Labor Standards Act requires employers to pay their employees time and a half for all the work they do over forty hours a week. See 29 U.S.C. § 207(a)(1). “Generally, employees may only recover up to two years of back pay under the FLSA’s statute of limitations.” Rodriguez v. Farm Stores Grocery, Inc., 518 F.3d 1259, 1262 (11th Cir.2008) (citing 29 U.S.C. § 255(a)). Arilus filed this lawsuit on July 23, 2009, and seeks unpaid overtime wages from July 23, 2007 until October 2008, the date on which he was terminated.

To be entitled to the Act’s protections, however, Arilus must first show that he is covered by the Act. Josendis, 662 F.3d at 1298. There are two types of coverage: enterprise and individual. Id. To establish enterprise coverage, an employee must show that his employer (1) is engaged in *883 interstate commerce, and (2) “is an enterprise whose annual gross volume of sales made or business done is not less than $500,000.” 29 U.S.C. § 203(s)(1)(A)(i)-(ii). 1

To decide whether JAD Inc. and Gardens of Eden Nursery had a combined “gross volume of sales made or business done” that was less than $500,000, the district court relied on the employers’ 2007 and 2008 tax returns. Those returns showed that the employers’ total gross receipts were $430,489 for 2007 and $364,165 for 2008.

Arilus contends that the district court erred in relying on the employers’ tax returns because those returns were “fraudulent.” Arilus points out that Joseph DiEmmanuele, Jr. testified in his deposition that when Arilus and the two other plaintiffs worked more than 45 hours per week, he would comply with their request to be paid in cash for the extra hours worked, and those payments were not reported on the employees’ W-2 statements. DiEmmanuele noted, however, that those cash payments happened “very seldom,” and would only be for “an hour or two.”

Arilus argues that because DiEm-manuele admitted that the W-2 statements for 2007 and 2008 were not accurate, there is a genuine issue of material fact about whether the employers’ gross sales or business done was less than $500,000 for those years. We disagree. As the district court noted, even if the employers failed to report a few cash payments on the employees’ W-2 statements, that only affects the expenses reflected in the employers’ tax returns. It does not affect the amount of gross receipts that were reported in those returns. And we look to gross receipts— not expenses — to determine the “annual gross volume of sales made or business done” in the year.

Arilus also contends that there is a genuine issue of material fact about “the amount of times and to whom [the employers] made wage payments in cash.” Arilus and the two other plaintiffs testified in deposition that on several occasions, they saw the employers paying cash wages to seven or eight illegal immigrants, although they did not specify when those payments were made. Arilus then infers that the wages he allegedly saw being paid to illegal workers must have come from customers who paid in cash. And he then infers that the cash received from customers must not have been reported on the 2007 and 2008 tax returns. From that string of inferences, Arilus concludes that the employers’ tax returns underreported the gross receipts for 2007 and 2008. We agree with the district court that even viewing the evidence in a light most favorable to Arilus, he has failed to show a genuine issue of material fact. Evidence of certain cash payments being made to employees at unspecified times is not enough to allow a jury to infer that the employers underreported the gross receipts on their tax returns by nearly $70,000 in 2007 and $136,000 in 2008. See Josendis, 662 F.3d at 1318 (“At the summary judgment stage, such ‘evidence,’ consisting of one speculative inference heaped upon another, [is] entirely insufficient.”).

Arilus further contends that he and the other two plaintiffs saw customers paying the employers in cash on a few unspecified occasions. Arilus testified in his deposition that he saw cash collected from customers on only one or two occasions, and that he had four customers who gave him cash payments. The other two plaintiffs admitted that the employers’ policy did not *884 allow employees to collect payments (in cash or otherwise) from customers. They also testified that they were paid by a customer only on rare occasions and never in cash. We agree with the district court that those statements “lack specificity” and “appear to be based solely on assumptions without direct knowledge of any under-reporting of annual sales or business done.” Arilus has not shown a genuine issue of material fact. 2

III.

In cases where the unpaid overtime wages were the result of a “willful violation,” the time period for which an employee can recover back pay is extended by one year. See 29 U.S.C. § 255(a).

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522 F. App'x 881, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marius-arilus-v-joseph-a-diemmanuele-jr-inc-ca11-2013.