United States District Court, S.D. Indiana, Terre Haute Division
TIMOTHY M. POFF, Plaintiff,
QUICK PICK, LLC, AHMED SHAKER, Defendants.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Jane Magnus-Stinson, Chief Judge
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.
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.]
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.]
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].
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
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.
Findings of Fact 
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
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.
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 oversaw the day-to-day operations of Quick Pick,
though she was not a member of the LLC. 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
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. 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. The Court finds
that this omission undermines Mr. Poff's credibility,
both generally and specifically as ...