FLSA unpaid overtime requires payment of Liquidated damages.

Below is the brief which proposes that liquidated damages are mandatory in FLSA (Overtime) Retaliation cases.

Oral arguments are set for December 2012 before a three-judge panel at the 11th Circuit Court of Appeals.

APPELLEES’ STATEMENT REGARDING ORAL ARGUMENT

Plaintiffs, Moore, Lungrin, and Evers request oral arguments pursuant to Fed. R. App. P. 34 and 11th Cir. R. 34-3(c); and states that the dispositive issues on appeal have not been authoritatively decided, the issue of mandatory liquidated damages in FLSA retaliation cases is an issue of first impression for the Eleventh Circuit; there is split between decisions regarding mandatory liquidated damages in FLSA retaliation cases coming from the Sixth and Eight Circuits conflicting with decisions of the Fifth and Seventh Circuits, that the decisional process of this Court will be aided by oral argument.

JURISDICTIONAL STATEMENT
The Eleventh Circuit Court of Appeals has appellate jurisdiction of a final decision of the District Court for the Middle District of Florida pursuant to 28 U.S.C. § 1291. The District Court entered a final order denying Plaintiffs, Moore, Lungrin, and Ever’s motion requesting liquidated damages for the Appellant / Defendant, Pak’s violation of the Fair Labor Standards Act on October 11, 2011. Plaintiffs, Moore, Lungrin, and Ever’s Notice of Cross Appeal was timely filed on November 7, 2011.

STATEMENT OF THE ISSUES ON CROSS APPEAL
1. The District Court erred in denying Plaintiffs Moore, Lungrin, and Evers’ Motion to Alter Judgment for the Addition of Liquidated Damages because Pak did not show that the act giving rise to such action was in good faith and that he had reasonable grounds for believing that his act was not a violation of the Fair Labor Standards Act of 1938, as amended.
STATEMENT OF ISSUES IN REPLY TO APPELLANT’S BRIEF
2. The District Court properly denied Defendant Pak’s Motion for Judgment as a Matter of Law, Renewed Motion for Judgment as a Matter of Law, and Motion for Remittitur or New Trial because substantial evidence of damages was presented at trial.
3. The District Court properly denied Defendant Pak’s Motion for Judgment as a Matter of Law and Renewed Motion for Judgment as a Matter of Law because substantial evidence presented at trial establishes that the Appellant meets the definition of an employer under the Fair Labor Standards Act.
4. The District Court properly denied Defendant Pak’s Renewed Motion for Judgment as a Matter of Law because substantial evidence of the causal connection between the protected activity and retaliatory conduct was presented at trial.
STATEMENT OF THE CASE
On February 5, 2009, Appellees / Plaintiffs, Moore, Lungrin, and Evers filed suit against Appellant / Defendant, Pak, in the United States District Court, Middle District of Florida. (Complaint). Plaintiffs sued Defendant for retaliation under the Fair Labor Standards Act (“FLSA”).
The District Court has previously entered summary judgment against the Plaintiffs in this case. The District Court’s summary judgment was overturned once already by this Court.
Moore, Lungrin, and Evers alleged in paragraph 5 of their complaint that “Defendants are employers as defined by 29 U.S.C. Section 203(d).” (Complaint pg. 1). Pak and Appliance Direct, Inc., in their answer to the complaint responded to paragraph 5 as follows “Admitted as to Defendant being an employer covered by the FLSA.” (Answer pg. 1).
The District Court filed its Case Management and Scheduling Order on April 8, 2009; ordering Plaintiffs Moore, Lungrin, and Evers as well as Defendant Pak to file a Joint Final Pretrial Statement. (Scheduling Order pg. 8).
On March 29, 2010 all Plaintiffs and Defendant Pak filed a Pretrial Statement of Facts which was signed by counsel. (Statement of Facts pg. 5). On page three of the statement, paragraph nine, subparagraph two the parties stipulated that “Defendant was an employer under 29 U.S.C. § 203(d)”. (Id. at 3).
On April 20, 2010 all Plaintiffs and Defendant Pak filed a Second Amended Pretrial Statement of Facts which was signed by counsel. (Second Statement of Facts pg. 5). On page three of the statement, paragraph nine, subparagraph two the parties again stipulated that “Defendant was an employer under 29 U.S.C. § 203(d)”. (Id. at 3).
On August 18, 2011, after the close of discovery, in a pretrial preceding the morning of trial Pak moved the District Court in order to release himself from his prior stipulation that he was an employer under 29 U.S.C. § 203(d). Plaintiffs Moore, Lungrin, and Evers objected however the Court granted Pak’s request. PreTrial T. pg. 29 L10-14.
Ultimately the Jury found in favor of the Plaintiffs, Moore, Lungrin, and Evers. (Verdict). Specifically the Jury found that Appliance Direct, Inc., retaliated against Plaintiffs for engaging in protected activity, Sei Pak was an employer as defined by Section 203(d) of the FLSA, an adverse action occurred against each of the Plaintiffs, the protected activity was a but for cause or motivating factor for the retaliation against each Plaintiff, each Plaintiff suffered economic damages, and the economic damages suffered by the Plaintiffs was $30,000 for each Plaintiff. (Id.). A Judgment was entered against Pak.
The Plaintiffs Moore, Lungrin, and Evers filed a Motion to Alter Judgment for the Addition of Liquidated Damages. Pak filed a Renewed Motion for Judgment as a Matter of Law and a Motion for New Trial or Remittitur. All three Motions were denied and this appeal and cross appeal followed.

STATEMENT OF THE FACTS
The three Plaintiffs, Moore, Lungrin, and Evers worked at Appliance Direct, Inc. as delivery drivers. T. I pg. 15 L9-14; T. II pg. 37 L10-11. The Plaintiffs maintained excellent reputations as delivery drivers at Appliance Direct, Inc., due to their size, strength, courteousness, and punctuality. T. I pg. 15 L9; pg 16 L2; T. II pg L11 – 25.
In February 2008, Moore, Lunrgin, and Evers filed an FLSA action against Pak and Appliance Direct, Inc., for unpaid overtime before the U.S. District Court Middle District of Florida. (Case No.: 6:08-cv-317). Defendant Pak testified that the Plaintiffs had sued him for unpaid overtime. T. II pg. 31 L3 – 16.
Defendant Pak made a decision to switch all delivery drivers of Appliance Direct, Inc., to independent contractors in order to avoid paying overtime to delivery employees. T. II pg. 32 L13-21. Pak led the pitch meeting where the idea to switch from employees to independent contractors was presented to Appliance Direct, Inc. delivery drivers. T. II pg. 70 L8. Pak’s decision to outsource drivers terminated the Plaintiffs’ employment on or about the same time. T. II pg. 118 L 15. Pak’s interrogatories stated that he fired the Plaintiffs. Exhibit #2.
Pak is in charge of the direction of Appliance Direct, Inc. T. II pg. 25 L4. Pak is also the CEO, Id. at 23 L17, and 75% owner of Appliance Direct, Inc. T. II pg. 24 L2. Pak promoted himself from president of the company to CEO. T. II pg. 25 L8. Pak negotiated lease deals and with vendors for appliance purchases. T. II pg. 118 L22-25. Pak testified that he was upset when employees sue his company because his money is affected. T. II pg. 26 L3-8. Pak testified that he knew retaliation was wrong but did not know it was illegal. T. II pg. 124 L7 – 21.
Moore testified that he would receive special delivery instructions from Appliance Direct, Inc., managers regarding appliance deliveries to Pak’s friends. T. II pg. 13 L25 – 14 L18. Jeffrey Caneva, a former delivery driver that received an independent contract, T. II pg. 53 L16, testified that Pak told him what to do. T. II pg. 53 L24-25. John Russell, a former store manager of Appliance Direct, Inc., T. I pg. 14 L3, stated that Pak is the ultimate decision maker at Appliance Direct, Inc. T. I pg. 21 L5.
Each Plaintiff, Moore, Lungrin, and Evers testified that after they filed their overtime lawsuits managers of Appliance Direct, Inc., would no longer speak with them on friendly terms. T. I pg. 35 L16; T. II pg. 38 L14-15; T. II pg. 70 L25 – 71 L3. Moore testified that he was treated as if he was the enemy of the company. T. I pg. 37 L21-24.
Pak testified that he gave instructions to Jeff Rock and Jeff Pena who worked as managers at Appliance Direct, Inc. T. II pg. 34 L13-16. Pak testified that he worked together with Jeff Pena, an Appliance Direct, Inc. manager, in order to fill out his interrogatories; essentially Defendant Pak adopted Jeff Pena’s statements. T. II pg. 126 L 5-10.
Jason Evers asked Jeff Pena, Pak’s manager, if he would receive an independent contract, and was told nobody involved in the lawsuit would receive a contract. T. II pg. 71 L9 – 18. Evers asked Jeff Pena if he would speak to Pak on his behalf. T. II pg. 71 L9 – 18. Pena replied that the decisions not to give contracts to individuals involved in the lawsuit were Pak’s and would not change. T. II pg. 71 L9 – 18.
Moore testified that he was told by Pak’s manager Jeff Rock that he couldn’t receive an independent contract because he sued Pak previously for unpaid overtime. T. I pg. 36 L8-9. Moore further testified that he was told by Pak’s manager Jeff Pena that Pak would not allow him to have a contract. T. II pg. 21 L20-21. Lungrin testified that he was not offered an independent contract because of his lawsuit against Pak. T. II pg. 42 L6 – 14.
Former store manager John Russell testified that he was expressly told by Jeff Pena that he could not contract with the Plaintiffs, Moore, Lungrin, and Evers as independent contractors. T. I pg. 18 L17. Jeff Pena also told John Russell that he was not responsible for the decision not to contract with the Plaintiffs as independent contractors. T. I pg. 21 L5.
Jeffrey Caneva testified that it was common knowledge throughout Appliance Direct, Inc., that the Plaintiffs, Moore, Lungrin, and Evers would not receive contracts because they participated in the FLSA lawsuit. T. II pg. 55 L3-23. Jeffrey Caneva testified that he was told by Pak’s manager Jeff Pena that he would not receive an independent contract if he participated in the FLSA lawsuit. T. II pg. 55 L3-23. Jeffery Caneva received notice of the Plaintiffs’ unpaid overtime lawsuit and elected to not participate because he wanted an independent contract. T. II pg. 55 L3-23. Further, Jeffrey Caneva was told by Pak’s manager Jeff Pena that he was not allowed to hire anybody involved in the FLSA lawsuit for his own independent company. T. II pg. 57 L1-12.
Leonard Moore was unemployed after his termination from Appliance Direct, Inc., for 58 weeks. T. II pg. 21 L9. Christopher Lungrin was terminated from Appliance Direct, Inc., on March 24, 2009, Id. at 37 L14, and had been unable to find work . T. II pg. 39 L13. Jason Evers has been unemployed after his termination from Appliance Direct, Inc., for 90 weeks. T. II pg. 74 L2.
Jeffery Caneva testified that he began his independent contractor business on September 1, 2008 with employees, T. II pg. 51 L23, at the Appliance Direct, Inc., Melbourne, Florida location. Id. at 53 L12. Evers testified that after Jeffery Caneva started as an independent contractor the Plaintiffs were only given one or two left-over deliveries a day and only worked a couple of hours when utilized. T. II pg. 73 L2-8.
If Jeffery Caneva had been allowed to hire the Plaintiffs he would have paid them $15 for each delivery stop made. T. II pg. 57 L1- 15. Jeffery Caneva’s independent contractor business would make about 100 to 115 stops a week. T. II pg. 57, L20-23. The 115 stops would be divided between himself and three other employees T. II pg. 57 L23 – pg. 58 L1. The employees that Jeffery Caneva hired were paid $10 to $8 per stop, T. II pg. 60 L14, and Jeffery Caneva paid himself $1,000 per week. T. II pg. 60 L 21. Jeffery Caneva would give $200 of his wages to his wife for secretarial work. T. II pg. 61 L12-13.

STATEMENT OF THE STANDARD OF REVIEW
An appellate court reviews de novo questions of statutory interpretation. U.S. v. Moore, 541 F.3d 1323, 1326 (11th Cir. 2008) (quotations omitted).
An appellate court reviews the denial of a motion for judgment as a matter of law de novo. Wood v. Green, 323 F.3d 1309, 1312 (11th Cir. 2003). “[The Appellate Court] will reverse only if the facts and inferences point overwhelmingly in favor of one party, such that reasonable people could not arrive at a contrary verdict.” Goldsmith v. Bagby Co, 513 F.3d 1261, 1275 (11th Cir. 2008). (quotation omitted). “[The Appellate Court] will consider all the evidence, and the inferences drawn therefrom, in the light most favorable to the nonmoving party.” Id. (quotation omitted).
An appellate court reviews decisions regarding the effect of pre-trial stipulations with an abuse of discretion standard. Hunt v. Marchetti, 824 F.2d 916, 918 (11th Cir. 1987). The law of the Eleventh Circuit is that “a party may be relieved of a stipulation to prevent manifest injustice so long as suitable protective terms or conditions are imposed to prevent substantial and real harm to the adversary.” Alewin v. City Council of Augusta Ga., 699 F.2d 1060 (11th Cir. 1983) (quotations omitted).
An appellate court reviews the denial of a motion for remittitur or new trial under an abuse of discretion standard. Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 435 (1996). “[The Appellate Court] must give the benefit of every doubt to the judgment of the trial judge; but surely there must be an upper limit, and whether that has been surpassed is not a question of fact with respect to which reasonable men may differ, but a question of law.” Id. (quotation omitted). “Because it is critical that a judge does not merely substitute his judgment for that of the jury, new trials should not be granted on evidentiary grounds unless, at a minimum, the verdict is against the great–not merely the greater–weight of the evidence.” Lipphardt v. Durango Steakhouse of Brandon, Inc., 267 F.3d 1183, 1186 (11th Cir. Fla. 2001).

SUMMARY OF THE ARGUMENT
The District Court’s October 5th, 2011 Order mistakenly denied the Plaintiffs’ Motion for Liquidated Damages on the basis that statutory construction of 29 U.S.C. § 216(b) affords it the discretionary authority to do so. The Court did not have discretionary authority to deny the Plaintiffs’ Motion because the Defendant did not meet the good faith requirement set forth in 29 U.S.C. § 260. Further the District Court committed error when interpreting 29 U.S.C. 216(b) by exclusively using an incorrect cannon of statutory construction. Finally the discretionary reason put forth by the District Court in denying the Plaintiffs’ claim for liquidated damages conflicts with a previous Eleventh Circuit decision. Snapp v. Unlimited Concepts, Inc., 208 F.3d 928 (11th Cir. 2000).
The District Court properly denied the Defendant Pak’s Motion for Judgment as a Matter of Law, Renewed Motion for Judgment as a Matter of Law, and Motion for Remittitur or New Trial on the issue of damages. Evidence presented at trial established the amount of work weeks missed by each Plaintiff because of the Defendant Pak’s Retaliation; along with statements of current position and pay, as well as the job and pay rate for which he was denied because of unlawful employment practices, Pettway, 494 F.2d at 259-60, and computation of back pay by comparability of similar individuals. Id. at 262.
The District Court properly denied the Defendant Pak’s Motion for Judgment as a Matter of Law and Renewed Motion for Judgment as a Matter of Law on the issue of whether the Defendant was an employer.
Evidence at trial established that Defendant Pak exercised operational control over matters in relation to employees. Alvarez Perez, 515 F.3d at 1160 Defendant Pak had significant ownership of the company and was its CEO. Id. at 1161. Defendant Pak also exercised control over Appliance Direct, Inc., operations by guiding the direction of the company. Id. Pak promoted himself from president of the company to CEO. Pak testified that he gave instructions regarding job duties to Jeff Rock and Jeff Pena who worked as managers at Appliance Direct, Inc. Moore testified that he received delivery instructions from Pak through other Appliance Direct, Inc., managers. Pak specifically told independent contractors what to do. Finally, John Russell, the former store manager, testified that Pak was the ultimate decision maker.
The District Court properly denied the Defendant Pak’s Motion for Judgment as a Matter of Law and Renewed Motion for Judgment as a Matter of Law on the issue of causation.
Evidence presented at trial established that Defendant Pak had notice of Plaintiffs’ protected activity and made the decisions to retaliate against the Plaintiffs by not allowing them to become independent contractors or work for independent contractors. Tarmas, 433 Fed. Appx. at 763

ARGUMENT
1. The District Court erred in denying Plaintiffs Moore, Lungrin, and Evers’ Motion to Alter Judgment for the Addition of Liquidated Damages because Pak did not show that the act giving rise to such action was in good faith and that he had reasonable grounds for believing that his act was not a violation of the Fair Labor Standards Act of 1938, as amended.
The District Court’s October 5th, 2011 Order mistakenly denied the Plaintiffs’ Motion for Liquidated Damages on the basis that statutory construction of 29 U.S.C. § 216(b) affords it the discretionary authority to do so. The District Court believes the phrase “as may be appropriate” which appears in the retaliation penalties section of 216(b) vest in the Court the ability to deny liquidated damages in a retaliation case because it does not appear in the unpaid wages penalty section of 216(b) where liquidated damages are mandatory. (Order pg. 7-8).
In its analysis the District Court believes that when a Jury calculates wages lost with the specific instruction to make the Plaintiffs whole again, the lost wages should be the entire amount of damages the Plaintiffs should be awarded in an FLSA retaliation case. (Order pg. 3).
Plaintiffs in their complaint demanded liquidated damages. (Complaint). Evidence presented at trial showed that the Defendant Pak knew retaliation was wrong but did not know retaliation was illegal. Testimony also established that the decision to retaliate against the Plaintiffs was made by the Defendant Pak. Pursuant to the Liquidated Damages section of the FLSA 29 U.S.C. § 260;
“In any action to recover unpaid minimum wages, unpaid overtime compensation, or liquidated damages, under the [FLSA], if the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of the [FLSA], the court may, in its sound discretion, award no liquidated damages or award any amount thereof not to exceed the amount specified in section 216 of this title.”
The Defendant provided no evidence to establish that his retaliation was in good faith or that he had reasonable grounds for believing his retaliation was not a violation of FLSA. Therefore the District Court did not have the discretionary authority to deny the Plaintiffs’ Motion for Liquidated Damages.
The Fifth Circuit Court of Appeals, Seventh Circuit Court of Appeals, and District Court’s within the Eleventh Circuit all hold that if the Defendant fails to make a good faith showing pursuant to 29 U.S.C. § 260 then liquidated damages for lost wages in FLSA retaliation cases are mandatory. Lowe, 998 F.2d at 337 (Fifth Circuit holding section 260 controls all liquidated damages determinations); Avita, 49 F.3d at 1223 (Seventh Circuit holding section 260 controls liquidated damages determinations); Miller, 75 F.Supp. 2d at 1345 (Dist. Ct. inside Eleventh holding section 260 controls liquidated damages in retaliation cases); Vaccaro, 2010 U.S. Dist. LEXIS 28188 at 14 (Dist. Ct. inside Eleventh holding section 260 controls liquidated damages in retaliation cases).
The District Court did not even consider the Defendant’s conduct when denying the Plaintiffs’ Motion for Liquidated Damages. Because the District Court exercised discretionary authority at a time when it was clearly prohibited, the Order denying Plaintiffs’ Motion for Liquidated Damages is error and should be reversed.
The District Court relied upon decisions that conflict with the Fifth Circuit Court of Appeals, Seventh Circuit Court of Appeals, and District Court’s within the Eleventh Circuit’s holding that liquidated damages for FLSA retaliation are mandatory without a good faith showing. Those Circuits include the Sixth Circuit, Blanton, 856 F.2d at 737 (Relies on the difference in wording between unpaid wages penalties and retaliation penalties.), and Eight Circuit, Braswell, 187 F.3d at 956-59 (Relies on the difference in wording between unpaid wages penalties and retaliation penalties.).
These decisions are a poor model to emulate. First, because no appropriate standard for using discretion is given; therefore District Courts may grant or deny liquidated damages for any reason doling out random unequal results for both Plaintiffs and Defendants. Second, the Eighth and Sixth Circuit decisions ignore a statutory framework already established by Congress to determine whether or not liquidated damages are proper, 29 U.S.C. § 260, as well as other cannons of statutory construction which the Eleventh Circuit and Supreme Court finds more compelling.
The District Court believes similarly to the Braswell and Blanton Courts that the phrase “as may be appropriate” which appears in the retaliation penalties section of 216(b) vest in the Court the ability to deny liquidated damages in a retaliation case because it does not appear in the unpaid wages penalty section of 216(b) where liquidated damages are mandatory. Muscogee, 851 F.2d at 1444. The United States Supreme Court has found that it is reversible error for a Court to interpret a statute solely upon differences in wording between one statute and another, when there is more information and other statutory cannons pointing to an opposite conclusion. Field, 516 U.S. at 67.
It is unreasonable to compare the wording of the unpaid wages statute and retaliation statute located in § 216(b) together, because each statute punishes two completely different violations. The Eleventh Circuit has already explained in Snapp, that the differences between remedial language in the wages section and retaliation section of 216(b) are based on the differences in the nature of the statutes. Snapp, 208 F.3d at 937 (‘As it may be appropriate’ appears because there are numerous ways to retaliate against an employee while there is only one way to violate unpaid wages provision.).
The Plaintiffs’ Case is distinguishable from Muscogee, because the statutes being compared in Muscogee serve identical purposes; limiting the powers of Native American Tribes. Muscogee, 851 F.2d at 1444. While on the other hand the statutes which are being compared in the Plaintiffs’ Case are meant to penalize employers for two different types of labor law violations.
The District Court’s reliance on Muscogee alone for statutory construction is error because the Supreme Court and Eleventh Circuits both hold that when interpreting a statute, “a provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme – because the same terminology is used elsewhere in a context that makes its meaning clear.” United Sav. Assn. of Tex., 484 U.S. at 368; United States v. Cleveland Indian Baseball, 532 U.S. at 218; AT&T Mobility LLC, 131 S. Ct at 1754; Smith v. United States, 508 U.S. at 233; Durr, 638 F.3d at 1349; Segarra, 582 F.3d at 1271; Edison, 604 F.3d at 1310. The District Court in its Order Denying Plaintiffs’ Liquidated Damages did not consider the Liquidated Damages provision of the FLSA 29 U.S.C. § 260. As it was previously argued, 29 U.S.C. § 260 clarifies and explains to the Court when Liquidated Damages should be awarded, and expressly provides a method to determine whether or not the Court should exercise its discretion.
Further, liquidated damages as it appears in the retaliation penalties section of § 216(b) should be afforded a similar meaning when compared to the liquidated damages section as they appear in the wages penalties section of § 216(b) and the liquidated damages section located at § 260. National Credit Union Admin, 522 U.S. at 501; Ratzlaf, 510 U.S. at 143. It is a basic underlying principle that unpaid wages and liquidated damages in FLSA cases go together hand in hand. The only instance in which the Court has discretion to disallow liquidated damages is when the Defendant shows good faith. This same meaning should also be afforded to liquidated damages for retaliation violations. National Credit Union Admin, 522 U.S. at 501; Ratzlaf, 510 U.S. at 143.
This interpretation is further supported by the grammatical structure of the retaliation penalties section of § 216(b). The relative portion of 29 U.S.C. § 216(b) reads as follows;
“Any employer who violates the provisions of section 215(a)(3) of this title shall be liable for such legal or equitable relief as may be appropriate to effectuate the purposes of section 215 (a)(3) of this title, including without limitation employment, reinstatement, promotion, and the payment of wages lost and an additional equal amount as liquidated damages”
As Plaintiffs have previously argued wages lost and liquidated damages go hand in hand. However, the statutory construction used by The District Court’s Order breaks wages lost and liquidated damages into two separate forms of relief either of which may be awarded at the Court’s discretion.
This result is not supported by the grammatical structure of the statute. When a series of three or more forms of relief are listed a comma must appear after each of the terms. William Strunk Jr., and E.B. White, The Elements of Style 4th ed., (Longman Publishing 2000) (1959). The statute’s forms of relief of which a District Court should deem appropriate are broken down into (1) employment, (2) reinstatement, (3) promotion, and (4) the payment of wages lost and an additional equal amount as liquidated damages.” When a District Court determines that wages lost are a proper form of relief, liquidated damages go along for the ride because historically and grammatically they are both part of the same form of relief for the Plaintiffs. To argue that wages lost and liquidated damages are two separate forms of relief one must ignore the word ‘and’ between the words ‘promotion’ and ‘the payment of wages’ as well as the missing comma between the word ‘lost’ and ‘and.’ The statutes use of “, and” prior to “payment of wages lost and liquidated damages” shows legislative intent to group wages lost and liquidated damages together. The use of the oxford comma (, and) provide a clear indication that liquidated damages and wages lost should be grouped. Any other interpretation would be grammatically incorrect and thus improper. Arcadia, 498 U.S. at 79 (Statutes should not be interpreted in a way where conjunctions are duplicative or missing, “In casual conversation it may be appropriate but Congress does not draft its laws that way”); Ron Pair Enterprises, 489 U.S. at 241 (Statute should not be read in a way that conflicts with language and punctuation.).
The District Court’s reason for denying liquidated damages to the Plaintiffs is unsupported by Eleventh Circuit precedent. The District Court believes that a Jury’s calculation of wages lost is the full compensation of damages the Plaintiffs should be awarded in an FLSA retaliation case. The Eleventh Circuit in White and Son Enterprises, 881 F.2d at 1013, has already ordered that Plaintiffs in retaliation cases should receive their lost wages and then it should be doubled, even if damages are pushed beyond the sphere of compensation.
Thus it was improper for the District Court to deny the Plaintiffs’ Motion Liquidated Damages.
2. The District Court properly denied Defendant Pak’s Motion for Judgment as a Matter of Law, Renewed Motion for Judgment as a Matter of Law, and Motion for Remittitur or New Trial because substantial evidence of damages was presented at trial.
Each Plaintiff testified that they were denied an economic opportunity to deliver appliances for Appliance Direct, Inc., because they had participated in an FLSA lawsuit against Appliance Direct, Inc., and the Defendant Pak. A former store manager of Appliance Direct Inc., John Russell corroborated the Plaintiffs’ testimony by also testifying that each Plaintiff was denied the economic opportunity to deliver appliances for Appliance Direct, Inc., because the Plaintiffs participated in an FLSA lawsuit.
Jeffery Caneva, a former delivery driver who had received an independent contract from Appliance Direct, Inc., testified that he was not allowed to hire anybody involved in overtime lawsuits for his own independent company; in particular the Plaintiffs. The Defendant Pak’s decision to forbid independent contractors from hiring the Plaintiffs denied them a second economic opportunity.
The jury found that each Plaintiff suffered $30,000 in economic damages. Verdict. Economic damages include back pay. Bogacki, 370 F.Supp.2d at 1201.
The maximum evidentiary burden that should be placed on the Plaintiffs in a claim for back pay should be a statement of his current position and pay, as well as the job and pay rate for which he was denied because of unlawful employment practices. Pettway, 494 F.2d at 259-60 ; Akouri, 408 F.3d at 1343. Computation of back pay can also be reached by comparability of similar individuals. Pettway, 494 F.2d at 262; International Union of Operating Eng., Local 925, 460 F.2d at 600-1. It is proper to award back pay from the date of the retaliatory action up until the date in which judgment is entered. Weaver, 922 F.2d at 1528.
Each Plaintiff testified that they had been out of work for long periods of time. Moore lost 87 weeks of work, Evers lost 119 weeks of work, and Lungrin lost 154 weeks of work since the date Jeffery Caneva’s independent contractor business began working September 1, 2008.
Jeffery Caneva paid himself $1,000 a week when he was an independent contractor; $200 of which he gave to his wife for clerical work associated with running the business. Damages could be calculated by multiplying the similarly situated Jeffery Caneva’s weekly rate of pay with the amount of weeks the Plaintiffs lost wages. Pettway, 494 F.2d at 262; International Union of Operating Eng., Local 925, 460 F.2d at 600-1.
The employees that Jeffery Caneva hired were paid $10 to $8 per stop. Jeffery Caneva’s independent contractor business would make about 100 to 115 stops a week. The 115 stops would be divided between himself and three other employees. The average amount of back pay per week could be calculated by dividing 115 stops by four then multiplying by the stop rate of the similarly situated employees of Jeffery Caneva. Pettway, 494 F.2d at 262; International Union of Operating Eng., Local 925, 460 F.2d at 600-1. The average amount of back pay per week could then be multiplied by the weeks the Plaintiffs lost wages to reach a damages figure. Id.
If Jeffery Caneva had been allowed to hire the Plaintiffs he would have paid them $15 for each delivery stop made. The Plaintiffs were experienced delivery men with excellent reputations as delivery drivers because of their size, attention to customer care, and pleasant personalities; this explains why Jeffery Caneva would have paid them more than what he paid his former employees. The average amount of back pay per week could be calculated by dividing 115 stops by four then multiplying the stop rate by $15 which represents the job and pay rate for which the Plaintiffs were denied because of unlawful employment practices. Pettway, 494 F.2d at 259-60; Akouri, 408 F.3d at 1343. The average amount of back pay per week could then be multiplied by the weeks the Plaintiffs lost wages to reach a damages figure. Pettway, 494 F.2d at 259-60; Akouri, 408 F.3d at 1343
The employee has a lighter burden of proof with a heavier weight of rebuttal on the employer. Pettway, 494 F.2d at 259; Akouri, 408 F.3d at 1343. The Plaintiffs are not required to show unrealistic exactitude in the event the unlawful employment action makes it difficult to ascertain damages, and any uncertainties should be resolved against the employer. Pettway, 494 F.2d at 260-61; International Union of Operating Eng., Local 925, 460 F.2d at 559.
If this Court were to compare the back pay evidence presented in the Plaintiffs’ case with the back pay evidence presented in Akouri, Pettway, and International Union of Operating Eng., Local 925, it is clear the Plaintiffs have met their evidentiary burden for damages. When the facts are looked at in a light most favorable to the Plaintiffs the damages awarded by the Jury are substantially less than the amounts Plaintiffs could have actually received.
Thus it was proper for the District Court to deny Defendant Pak’s Motion for Judgment as a Matter of Law, Renewed Motion for Judgment as a Matter of Law, and Motion for Remittitur or New Trial upon the issues of damages.
3. The District Court properly denied Defendant Pak’s Motion for Judgment as a Matter of Law and Renewed Motion for Judgment as a Matter of Law because substantial evidence presented at trial establishes that the Appellant meets the definition of an employer under the Fair Labor Standards Act.
An employer responsible for FLSA violations is “any person acting directly or indirectly in the interest of an employer in relation to an employee” 29 U.S.C. 203(d). “A corporate officer with operational control of a corporation’s covered enterprise is an employer.” Patel, 803 F.2d at 637-38. (citation omitted). When making the determination “whether an individual falls within this definition does not depend on technical or isolated factors but rather on the circumstances of the whole activity.” Alvarez Perez, 515 F.3d at 1160 (citation omitted).
Defendant Pak is an employer under the FLSA because evidence at trial shows he exercised operational control over matters in relation to employees. Alvarez Perez, 515 F.3d at 1160 (citation omitted). Defendant Pak made the decision to switch all delivery drivers of Appliance Direct, Inc., to independent contractors. Pak led the pitch meeting where the idea to switch from employees to independent contractors was presented to Appliance Direct, Inc. delivery drivers. Pak fired the Plaintiffs. Most importantly, evidence at trial shows that Defendant Pak made the decision to retaliate against the Plaintiffs.
Defendant Pak is an employer under the FLSA because evidence at trial shows that he is the CEO and 75% owner of Appliance Direct, Inc. Alvarez Perez, 515 F.3d at 1161 (citation omitted) (Employer factor is significant ownership interest of the corporation.). Defendant Pak also exercised control over Appliance Direct, Inc., operations by guiding the direction of company. Id. (Employer factor is guiding company policy.). Defendant Pak exercised control over Appliance Direct, Inc., operations by negotiating and entering into leases and vendor contracts on behalf of the company. Escobar, Case No. 6:05-cv-63-Orl-Krs (M.D. Fla., Dec. 5, 2005) (Employer factor is negotiating with vendors.).
Other evidence presented at trial that shows Pak exercised control over Appliance Direct, Inc., includes that Pak promoted himself from president of the company to CEO. Pak testified that he gave instructions regarding job duties to Jeff Rock and Jeff Pena who worked as managers at Appliance Direct, Inc. Moore testified that he received delivery instructions from Pak through other Appliance Direct, Inc., managers. Pak specifically told independent contractors what to do. Finally John Russell the former store manager testified that Pak was the ultimate decision maker.
Plaintiffs’ case is factually distinguishable from cases cited by the Defendant Pak because Pak does much more for Appliance Direct, Inc., than simply own the company. Alvarez Perez, 515 F.3d at 1162; Patel, 803 F.2d at 638.
The facts at issue are ones in which reasonable jurors could differ. Once this Court reviews the facts in a light most favorable to the Plaintiff the facts and inferences do not point overwhelmingly in favor of Defendant Pak. Goldsmith, 513 F.3d at 1275 (quotation omitted).
The Defendant Pak admitted in his answer and stipulated twice to the fact that he was an employer under FLSA. It was error by the Court to release Defendant Pak from his stipulation the morning of trial. Alewine, 699 F.2d at 1070.
Thus it was proper for the District Court to deny Defendant Pak’s Motion for Judgment as a Matter of Law and Renewed Motion for Judgment as a Matter of Law upon the issues of whether or not Defendant Pak was an employer as defined by the FLSA.
4. The District Court properly denied Defendant Pak’s Renewed Motion for Judgment as a Matter of Law because substantial evidence of the causal connection between the protected activity and retaliatory conduct was presented at trial.
“To show a causal relationship, Plaintiff must show that the decision-maker was aware of the protected activity, and that the protected activity and the adverse action were not wholly unrelated.” Tarmas, 433 Fed. Appx. at 763.
Evidence produced at trial shows that Defendant Pak had knowledge of the Plaintiffs’ FLSA lawsuit and made the decision to retaliate against them by not allowing them to be independent contractors or be hired by independent contractors.
Defendant Pak acknowledged in his testimony that the Plaintiffs sued him in his personal capacity. Jason Evers testified that he asked Jeff Pena, Pak’s manager, if he would receive an independent contract, and was told nobody involved in the lawsuit would receive a contract. Evers went on to state that he asked Jeff Pena if he would speak to Pak on his behalf. Pena replied that the decisions not to give contracts to individuals involved in the lawsuit were Pak’s and would not change.
Moore testified that he was told by Pak’s manager Jeff Rock that he would not receive an independent contract because he sued Pak previously for unpaid overtime. Moore further testified that he was told by Pak’s manager Jeff Pena that Pak would not allow him to have a contract. Lungrin testified that he was not offered an independent contract because of his lawsuit against Pak.
Former store manager John Russell testified that he was expressly told by Pak’s Manager Jeff Pena that he could not contract with the Plaintiffs, Moore, Lungrin, and Evers as independent contractors. Jeff Pena also told John Russell that he was not responsible for the decision not to contract with the Plaintiffs as independent contractors.
Jeffrey Caneva testified that it was common knowledge throughout Appliance Direct, Inc., that the Plaintiffs, Moore, Lungrin, and Evers would not receive contracts because they participated in the FLSA lawsuit. Further Jeffrey Caneva testified that he was told by Pak’s manager Jeff Pena that he would not receive an independent contract if he participated in the FLSA law suit. Jeffrey Caneva testified that he was told by Pak’s manager Jeff Pena that he was not allowed to hire anybody involved in the FLSA lawsuit for his own independent company. Id. at 57 L1-12.
Plaintiffs’ case is factually distinguishable from the case cited by the Defendant Pak because Pak’s decision to retaliate by not allowing Plaintiffs to become independent contractors or be hired by independent contractors occurred after the Plaintiffs engaged in protected activity. Clark County School District, 53 U.S. at 272.
The facts at issue are ones in which reasonable jurors could differ. Once this Court reviews the facts in a light most favorable to the Plaintiff the facts and inferences do not point overwhelmingly in favor of Defendant Pak. Goldsmith, 513 F.3d at 1275 (quotation omitted).
Thus it was proper for the District Court to deny Defendant Pak’s Motion for Judgment as a Matter of Law and Renewed Motion for Judgment as a Matter of Law upon the issues of whether or not Defendant Pak was an employer as defined by the FLSA.

CONCLUSION
Wherefore the reasons state above the Plaintiffs request that the Appellate Court overturn the District Court’s Order Denying the Plaintiffs Motion for Liquidated Damages and enter an award of Liquidated Damages of $30,000 for each Plaintiff.
Further the Plaintiffs request that the Appellate Court affirm the District Court’s Orders denying the Defendant Pak’s Motion for Judgment as a Matter of Law, Renewed Motion for Judgment as a Matter of Law, and Motion for Remitter or New Trial.

TABLE OF AUTHORITIES
Cases
Akouri v. State of Florida Dept. of Transp.,
408 F.3d 1338 (11th Cir. 2005) ..23-25

Alewin v. City Council of Augusta Ga.,
699 F.2d 1060 (11th Cir. 1983) ……10, 28

Alvarez Perez v. Sanford-Orlando Kennel Club, Inc.,
515 F.3d 1150 (11th Cir. 2008) 13, 26, 27

Arcadia v. Ohio Power Co.,
498 U.S. 73 (1990) …21

AT&T Mobility, LLC. v. Concepcion,
131 S.Ct. 1740 (2011) ..19

Avitia v. Metro. Club of Chicago, Inc.,
49 F.3d 1219 (7th Cir. 1995) 16

Blanton v. City of Murfreesboro,
856 F.2d 731 (6th Cir. 1988) 17

Bogacki v. Buccaneers, LTD., Partnership,
370 F.Supp.2d 1201 (M.D. Fla. 2005) .23

Bonner v. City of Prichard, Alabama,
661 F.2d 1207 (11th Cir. 1981) 23

Braswell v. City of El Dorado,
187 F.3d 954, 956-59 (8th Cir. 1999) …17

Clark County School District v. Breeden,
53 U.S. 268 at 272 (2001) 30

Durr v. Shinseki,
638 F.3d 1342 (11th Cir. 2011) 19

Edison v. Douberly,
604 F.3d 1307 (11th Cir. 2010) 19

EEOC v. White and Son Enterprises,
881 F.2d 1006 (11th Cir. 1989) ..21, 22

Escobar v. Orlando Brewing Partners, Inc.,
Case No. 6:05-cv-63-Orl-Krs (M.D. Fla., Dec. 5, 2005) .27

Field v. Mans,
516 U.S. 59 (1995) …18

Gasperini v. Center for Humanities, Inc.,
518 U.S. 415, 435 (1996) .11

Goldsmith v. Bagby Co,
513 F.3d 1261, 1275 (11th Cir. 2008) ..10, 27, 30

Hunt v. Marchetti
824 F.2d 916 (11th Cir. 1987) ..10

Lipphardt v. Durango Steakhouse of Brandon, Inc.,
267 F.3d 1183, 1186 (11th Cir. Fla. 2001) …11

Lowe v. Southmark Co.,
998 F.2d 335 (5th Cir. 1993) 16

Miller v. Paradise of Port Richey, Inc.,
75 F. Supp.2d 1342 (M.D. Fla. 1999) ..16

Muscogee (Creek) Nation v. Hodel,
851 F.2d 1439 (D.C. Cir. 1988) .18, 19

National Credit Union Administration v. First Nat. Bank & Trust Co.,
522 U.S. 479 (1998) …19, 20

NLRB v. International Union of Operating Eng., Local 925,
460 F.2d 589 (5th Cir. 1972) ……23-25

Patel v. Wargo,
803 F.2d 632 (11th Cir 1986) .26, 27

Pettway v. American Cast Iron Pipe Comp.,
494 F.2d 211 (5th Cir. 1974) 12, 23-25

Ratzlaf v. United States,
510 U.S. 135 (1994) …19, 20

Smith v. United States,
508 U.S. 223 (1993)..19

Snapp v. Unlimited Concepts, Inc.,
208 F.3d 928 (11th Cir. 2000) 12, 18

Tarmas v. Sec’y of the Navy,
433 Fed. Appx. 754, 763 (11th Cir. 2011) .14, 28

United Sav. Assn. of Tex. v. Timbers of Inwood Forest Assoc. Ltd.,
484 U.S. 365 (1988) .19

United States v. Cleveland Indians Baseball Co.
532 U.S. 200 (2001) .19

United States v. Ron Pair Enterprises, Inc.,
489 U.S. 235 (1989) .21

United States v. Segarra,
582 F.3d 1269 (11th Cir. 2009) 19

U.S. v. Moore,
541 F.3d 1323, 1326 (11th Cir. 2008) ..10

Vaccaro v. Custom Sounds, Inc.,
2010 U.S. Dist. LEXIS 28188 (M.D. Fla., Mar. 24, 2010) ..16

Weaver v. Casa Gallardo, Inc.,
922 F.2d 1515 (11th Cir. 1991) 23

Wood v. Green,
323 F.3d 1309, 1312 (11th Cir. 2003) .. …10

Publications

William Strunk Jr., and E.B. White,
The Elements of Style 4th ed., (Longman Publishing 2000) (1959) 20
Rules

11th Cir. R. 26.1-1 i

11th Cir. R. 34-3(c) ..ii

Fed. R. App. P. 26.1 ..i

Fed. R. App. P. 34 ii

Fed. R. App. P. 32(a)(7)(B) 32
Statutes

28 U.S.C. § 1291 vii

29 U.S.C. § 203(d) 2,3

29 U.S.C. § 216(b) 12, 15,16,18-20

29 U.S.C. § 260 …12,15-17,19

REPLY BRIEF:

STATEMENT OF THE ISSUE

1. The District Court erred in denying Plaintiffs Moore, Lungrin, and Evers’ Motion to Alter Judgment for the Addition of Liquidated Damages because Pak did not show that the act giving rise to such action was in good faith and that he had reasonable grounds for believing that his act was not a violation of the Fair Labor Standards Act of 1938, as amended.

Attorney:
Stephen Bigge, Esq., Maurice Arcadier, Esq.
Status:
Oral Arguments set for December 2012
Date Filed:
August 30, 2012

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