United States District Court, S.D. Indiana, Terre Haute Division
TIMOTHY M. POFF, Plaintiff,
QUICK PICK, LLC, and AHMED SHAKER, Defendants.
J. McKINNEY, JUDGE
October 27, 2016, a Clerk's Entry of Default was entered
against Quick Pick LLC. Dkt. No. 33. On April 18, 2017, the
parties appeared for a hearing, with counsel, on Plaintiff
Timothy M. Poff's (“Poff's”) Amended
Motion for Default Judgment and Motion for Hearing on Damages
against Defendant Quick Pick LLC. Dkt. No. 39. Poff and
Defendant Ahmed Shaker, principal of Quick Pick, testified at
the hearing. For the reasons stated herein, default judgment
in the amount of $xxxxx.xx in favor of Poff is appropriate.
FINDINGS OF FACT
entry of default having been entered, the following facts in
the Amended Complaint are taken as true, or are found by the
Court after the hearing.
Pick is a convenience store and novelty business with
locations in Indiana. Am. Compl. ¶ 2. On or about April
1, 2015, Poff was hired to work for Quick Pick as a cashier
at its location in the Honey Creek Square mall in Vigo,
County, Indiana. Id. ¶¶ 2 & 3. Shaker
is the owner/primary member of Quick Pick, LLC, and has
operational control over the company, its practices and its
employees. Id. ¶ 4.
Pick paid Poff at the rate of $7.50 per hour. Id.
¶ 5. Poff was employed on a part-time basis, however, he
was scheduled to work six days per week, Monday through
Saturday. Id. When Poff was scheduled to open the
store, Quick Pick required Poff to report to work a half-hour
(30 minutes) prior to the store's official opening time
of 10:00 a.m. Id. At the hearing, Poff entered into
evidence a text message from Shaker that told Poff to report
to work a half-hour prior to opening “as usual, ”
even though the store was opening an hour earlier for the
holidays. Pl.'s Ex. 1. This evidence supported Poff's
testimony that it was the business practice of Quick Pick to
have employees arrive 30 minutes prior to opening. In
addition, Poff was required to work some time beyond his
shift on occasion. Am. Compl. ¶ 5. However, Quick Pick
would only pay Poff for three hours of work per day, the time
between the official opening time for the store and the end
of Poff's scheduled shift. Id. Therefore, over
an 18-hour work week, Quick Pick underpaid Poff's hourly
wages and Poff's effective rate of pay was less than the
FLSA and Indiana minimum wage of $7.25 per hour. Id.
Quick Pick failed and refused to pay Poff for between three
and five hours of actual work time each week from April 1,
2015, to the time it suspended Poff from work in January
2016. Id. See also Pl.'s Exs. 3, 4 & 5.
There was no evidence presented by Shaker at the hearing to
refute Poff's claim that he was underpaid by this amount
each and every week of his employment. Shaker specifically
denied having any of his records with him on the day of the
hearing despite having notice of the purpose of the hearing
and being represented by counsel.
December 11, 2015, Poff filed the Complaint that started this
lawsuit alleging that Quick Pick and Shaker violated the Fair
Labor Standards Act (“FLSA”), the Indiana Minimum
Wage Law of 1965, Ind. Code § 22-2-2-3, and the Indiana
Statutory Wage Payment Statute, Ind. Code § 22-2-5. Dkt.
No. 1. On January 1, 2016, Shaker, acting on behalf of Quick
Pick, told Poff that he was suspended from work effective
Monday, January, 4, 2016, and that Shaker would let him know
in one week whether or not Poff's employment would be
terminated. Am. Compl. ¶ 7. Shaker specifically and
expressly told Poff that the reason for the suspension was
Poff's lawsuit against him and Quick Pick. Id.
On Saturday, January 9, 2016, Shaker contacted Poff and told
him that his employment was terminated. Id. ¶
8. This is direct evidence of retaliation for filing this
lawsuit. No evidence or testimony was presented at the
hearing that contradicts this fact.
January 11, 2016, Poff filed his Amended Complaint adding a
claim for retaliation under the FLSA. Id.
December 15, 2016, Poff was hired part-time to do janitorial
work at the Masonic Lodge in Terre Haute, Indiana; therefore,
it took him 50 weeks to replace his part-time job at Quick
Pick. Pl.'s Ex. 5. Poff's lost wages during that
period total $7, 500.00. Id.
CONCLUSIONS OF LAW
Pick is an employer and/or a person as those terms are
defined by the FLSA. 29 U.S.C. § 203. During his
employment at Quick Pick, Poff qualified as an employee as
that term is defined by the FLSA. 29 U.S.C. §§ 203
Pick violated the FLSA by failing to pay Poff for actual
hours worked at a minimum daily wage. 29 U.S.C. § 206.
For this violation, Quick Pick is liable to Poff for the
amount of his unpaid minimum wages, which amounts to $1,
561.74, and an additional equal amount as liquidated damages,
for a total of $3, 123.48 in damages for violation of the
minimum wage section of the FLSA. Pl.'s Ex. 4; 29 U.S.C.
§ 216(b). Quick Pick violated the FLSA by terminating
Poff's employment because he filed this lawsuit. 29
U.S.C. 215(a)(3). For this violation, Quick Pick is liable to
Poff for the payment of wages lost in the amount of $7,
500.00 and an additional equal amount as liquidated damages,
for a total of $15, 000.00 in damages for retaliatory
discharge under the FLSA. Pl.'s Ex. 5; 29 U.S.C. §
216(b). There is no indication in the text of the FLSA that
would limit Poff's recovery to one or the other type of
damages under the FLSA; therefore, the Court concludes that
Poff is entitled to recover a total of $18, 123.48 from Quick
Pick for violation of the FLSA. In addition, under the FLSA,
Poff is entitled to recover his attorney's fees and
costs. 29 U.S.C. § 216(b).
case under Indiana law is not quite as clear cut, but,
because at the time he filed suit Poff was still employed by
Quick Pick, the Court concludes that he may proceed under the
Indiana Wage Payment Statute as he plead. See Treat v.
Tom Kelley Buick Pontiac GMC, Inc., 646 F.3d 487, 491-92
(7th Cir. 2011) (discussing Hollis v. Defender
Security Co., 941 N.E.2d 536, 539-40 (Ind.Ct.App. 2011)
(concluding that the employee's status at the time the
claim is filed determines the operative statute)). Quick Pick
is an employer as that term is defined by the Indiana Wage
Payment Statute. Ind. Code § 22-2-2-3. Under the Wage
Payment Statute, Quick Pick must pay Poff for the hours he
worked at his hourly rate of pay and the failure to do so is
a violation of the statute. Ind. Code § 22-2-5-1. Quick
Pick failed to pay Poff for 3.0 hours, for 39 weeks, for a
total of $877.50 in actual damages.
the Wage Payment Statute, if the Court determines that Quick
Pick was not acting in good faith, then it must order Quick
Pick to pay, as liquidated damages, “an amount equal to
two (2) times the amount of wages due the employee.”
Ind. Code § 22-2-5-2. Here, Poff provided evidence that
Quick Pick requested that he report for work 30 minutes prior
to his shift to open to the store, but failed to pay him for
that time additional time worked. In addition, the evidence
showed that this was Quick Pick's usual expectation.
Pl.'s Ex. 1. Quick Pick provided no justification for its
failure to pay this amount; therefore, the Court concludes
that Quick Pick acted in bad faith when it failed to pay Poff
for actual hours worked. Pursuant to Indiana Code §
22-2-5-2, Poff is entitled to $1, 755.00 in ...