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Poff v. Quick Pick, LLC

United States District Court, S.D. Indiana, Terre Haute Division

November 20, 2018

TIMOTHY M. POFF, Plaintiff,
v.
QUICK PICK, LLC, AHMED SHAKER, Defendants.

          FINDINGS OF FACT AND CONCLUSIONS OF LAW

          Hon. Jane Magnus-Stinson, Chief Judge

         Plaintiff Timothy Poff brought this lawsuit alleging that Defendants Quick Pick, LLC (“Quick Pick”) and Ahmed Shaker failed to pay Mr. Poff his required minimum wage and terminated him in retaliation for filing this lawsuit, in violation of the Fair Labor Standards Act (“FLSA”) and state law. Quick Pick, LLC was defaulted for failure to plead or otherwise contest Mr. Poff's allegations. Mr. Poff's claims against Mr. Shaker proceeded to a bench trial, which was held on November 13, 2018. The Court briefly recounts the procedural history of this matter before setting forth its findings of fact and conclusions of law.

         I. Procedural History

         Mr. Poff filed his original Complaint on December 11, 2015, [Filing No. 1], and filed his Amended Complaint on January 11, 2016, [Filing No. 6]. Mr. Poff's Amended Complaint alleges that Mr. Shaker and Quick Pick are jointly and severally liable for failing to pay him the minimum wage under the FLSA, Indiana Minimum Wage Law (“IMWL”), and Indiana Wage Payment Statute (“IWPS”) and for retaliating against him for exercising his rights under the FLSA. [Filing No. 6.]

         On October 27, 2016, the Clerk entered default against Quick Pick. [Filing No. 33.] On March 9, 2017, counsel appeared for Quick Pick and Mr. Shaker. [Filing No. 40.] On April 18, 2017, Judge Larry J. McKinney held a hearing on Mr. Poff's Motion for Default Judgment and Damages as to Quick Pick. [Filing No. 54.] Mr. Poff, Mr. Shaker, and Quick Pick (by Mr. Shaker as its representative) all appeared in person and by counsel. [Filing No. 54.]

         On April 27, 2017, Judge McKinney issued his Findings of Fact and Conclusions of Law following the hearing on default judgment and damages as to Quick Pick. [Filing No. 57.] With Quick Pick's liability determined by the default, Judge McKinney first found that Quick Pick violated the FLSA by underpaying Mr. Poff by $1, 561.74. [Filing No. 57 at 4.] Judge McKinney awarded “an additional equal amount as liquidated damages” for a total of $3, 123.48 for Mr. Poff's FLSA minimum wage claim. [Filing No. 57 at 4.] Second, as for Mr. Poff's FLSA retaliation claim (with liability again decided based upon the allegations in the Amended Complaint), Judge McKinney awarded Mr. Poff $15, 000, based upon the undisputed evidence that Mr. Poff took 50 weeks to replace his part-time job at Quick Pick with a janitor position at a masonic lodge. [Filing No. 57 at 3-4.] After providing Defendants with an opportunity to show cause why partial final judgment should not issue, [Filing No. 57 at 5], the Court entered judgment on May 25, 2017 against Quick Pick in the amount of $18, 123.48, [Filing No. 60], and awarded Mr. Poff fees and costs on May 30, 2017 in the amount of $15, 195, [Filing No. 61].

         Defendants' counsel was granted leave to withdraw on August 7, 2017, [Filing No. 73], and since then Mr. Shaker has proceeded pro se. This matter was reassigned to the undersigned on September 28, 2017. [Filing No. 82.] On October 18, 2018, following briefing by the parties, the Court ruled that Judge McKinney's April 27, 2017 Order conclusively established “the issue of damages and the facts concerning Mr. Poff's hours worked and wages paid.” [Filing No. 106 at 8.] Remaining for trial was “Mr. Shaker's individual liability under the FLSA, IMWL, and IWPS, ” including “Mr. Shaker's personal liability for any retaliation under the FLSA.” [Filing No. 106 at 8.]

         At trial, held on November 13, 2018, counsel for Mr. Poff confirmed that, in addition to his FLSA retaliation claim, Mr. Poff was pursuing his minimum wage claim under just two alternative statutes, the FLSA and the IMWL, and was not pursuing any claim under the IWPS. The parties presented evidence and argument, and the Court took the matter under advisement. [Filing No. 115.] The issue of Mr. Shaker's personal liability under the FLSA and IMWL is ripe for determination.

         II. Findings of Fact [1]

         Mr. Shaker has, at various points in this litigation, suggested that he requires an interpreter because he is unable to sufficiently understand or speak the English language. [Filing No. 100; Filing No. 95 at 2-5; Filing No. 114.] The Court had the opportunity to observe Mr. Shaker and his testimony, as with the testimony of all of the witnesses at trial, and notes that it had no difficulty understanding Mr. Shaker, who ably participated in the proceedings.

         As the Court discusses below, Mr. Poff presented some evidence of certain facts which were necessary to support his claims, but failed, in light of the Court's assessment of the countervailing evidence presented by Mr. Shaker, to meet his burden of proving the existence of the facts by a preponderance of the evidence. Indeed, counsel for Mr. Poff candidly admitted at trial that the parties did not conduct any discovery in this case. As the Court noted at trial, that was counsel's choice. This decision appears to have substantially limited the evidence available for Mr. Poff's presentation at trial. Based upon the testimony and documentary evidence presented at trial, and having evaluated the credibility of the witnesses' testimony, the Court finds as follows.

         Mr. Poff worked part time from approximately April 2015 to January 2016 for Quick Pick, a convenience store located in the Honey Creek Square Mall in Terre Haute, Indiana. Mr. Shaker was the sole member of Quick Pick. During his time with Quick Pick, Mr. Poff also worked full time for Burger King. Quick Pick had gross annual sales of no more than $60, 000 and at least three employees during Mr. Poff's tenure. These employees included Sharon Rosa and Amanda Melton.

         Ms. Melton oversaw the day-to-day operations of Quick Pick, though she was not a member of the LLC.[2] This included responsibility for most personnel decisions, including hiring Mr. Poff, writing checks (which Mr. Shaker usually signed or had Ms. Melton sign on his behalf), supervising employees, negotiating the lease with the mall, and scheduling employees' work hours. Ms. Melton observed and grew concerned with Mr. Poff's hygiene, particularly because Quick Pick employees sold and served prepared food products. Ms. Melton also instructed Mr. Poff on several occasions not to wear his Burger King uniform to his shift at Quick Pick. At some point, Mr. Poff told Mr. Shaker that he was seeking legal counsel because he believed that he was being underpaid.

         Mr. Poff filed this lawsuit on December 11, 2015. At the end of 2015 or beginning of 2016, Ms. Melton suspended Mr. Poff for one week due to his repeated failure to adhere to Quick Pick policies. Mr. Poff was terminated by Mr. Shaker, via text message, thereafter.[3] Unlike the printout of alleged text messages regarding the hours Mr. Poff worked, admitted as Plaintiff's Exhibit 1 at trial, Mr. Poff did not retain, offer, or otherwise preserve the termination text message he received from Mr. Shaker-despite having retained counsel and filed this lawsuit by that point in time.[4] The Court finds that this omission undermines Mr. Poff's credibility, both generally and specifically as ...


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