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Simmons v. Wireless Exchange International 4, Inc.

United States District Court, N.D. Ohio, Eastern Division

August 8, 2019

Alisha Simmons, on behalf of herself, and all others similarly situated, Plaintiffs,
v.
Wireless Exchange International 4, Inc., et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          DONALD C. NUGENT, UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the Plaintiffs' Motion for Summary Judgment on their claims against Defendants for failure to pay overtime compensation to Plaintiffs in violation of the Fair Labor Standards Act, ("FSLA"), 29 U.S.C. §§ 201-219 and the Ohio Minimum Fair Wage Standards Act, ("OMFWSA"), R.C. 4113.03. (ECF #29) For the reasons that follow, Plaintiffs' Motion for Summary Judgment is granted.

         FACTS[1]

         Plaintiff Alisha Simmons brought this collective action against Defendants Wireless Exchange International 4, Inc., Wireless Exchange International 1, Inc., Wireless Exchange International 2, Inc., Wireless Exchange International 5, Inc., Wireless Exchange International 6, Inc., Wireless Exchange International 7, Inc., and Wireless Exchange International 8, Inc. (collectively "Wireless Exchanges") and Omar Salti asserting that Defendants had a practice and policy of not paying its non-exempt store managers, including Plaintiff, overtime compensation at the rate of one and one-half times their regular rates of pay for the hours they worked over 40 each week in violation of the FSLA. Plaintiff further seeks to remedy violations of the OMFWSA. (Compl., ECF #1, introduction and ¶1)

         Three additional individuals, Alphonso Durden, Jerry Phillips and Alexandrea Young, submitted consent forms to become Party Plaintiffs in this collective action. (ECF #3) Plaintiffs Motion for Conditional Certification, expedited opt-in discovery and court supervised notice to potential opt-in plaintiffs was granted on January 22, 2018 and the approved notice was sent. No. one else filed to join the collective action as a party plaintiff.

         Plaintiffs assert that they were employed by Defendants as non-exempt store managers. (ECF #29, Exs. 1-4, Declarations of Alisha Simmons, Alphonso Durden, Jerry Phillips and Alexandrea Young.) Alisha Simmons was employed from October 2013 to June 2017. (ECF#29, Ex. 1, ¶1) Alphonso Durden was employed from October 2015 to April 2017. (ECF #29, Ex. 2, ¶5) Jerry Phillips was employed from April 7, 2014 to October 9, 2015. (ECF #29, Ex. 3, ¶5) Alexandrea Young was employed from November 27, 2015 to April 3, 2015. (ECF #29, Ex. 4, ¶5)

         Ms. Simmons asserts that she was paid an hourly wage plus commission. (ECF # 29, Ex. 1, ¶ 2) She states that she regularly worked over 40 hours per week but was not paid overtime compensation at the rate of one and one-half times her regular rate of pay for the hours she worked over 40 each week. Instead, when she worked over 40 hours per week, she was only paid for 40 hours. (Id. ¶¶ 3-4) Mr. Durden and Ms. Young state that they were paid an hourly wage for the hours they worked. When they worked over 40 hours per week, they were either paid only for 40 hours or were paid straight time for the hours worked over 40. They were not paid one and one-half times their hourly rate for the overtime hours they worked. (ECF #29, Exs.2, 4, at ¶¶ 1-4)

         Defendants, through Omar Salti, the President and majority shareholder of the Wireless Exchange Defendants, confirm that Alisha Simmons and Alphonso Durden were employed by Defendants as managers of Wireless stores. (ECF #39, Ex. 1, Decl. of Omar Salti, ¶¶3, 6) Mr. Salti states that it was his belief that Ms. Simmons and Mr. Durden were exempt from overtime based upon the Department of Labor Fact Sheet provided by his accountant. (Id. ¶8) Mr. Salti also confirms that Alexandrea Young was employed by Defendants briefly but does not think that Ms. Young ever worked more than 40 hours in any workweek. (Id. ¶7) Mr. Salti denies that Mr. Phillips was ever employed by Defendants. (Id. ¶12)

         Plaintiff filed the instant motion for summary judgment on April 22, 2019. On July 1, 2019, Defendants filed their opposition to Plaintiffs motion for summary judgment and a motion to for leave to amend their answer. The Court granted Defendants' motion to amend their answer, as well as Defendants' motion to supplement their brief in opposition to Plaintiffs motion for summary judgment. (ECF # 42, #40) On July 15, 2019, opt-in Plaintiff Jerry Phillips filed his notice withdrawing his consent form to become a party Plaintiff. (ECF #44) Plaintiff filed her reply brief in support of her motion for summary judgment on July 23, 2019. Plaintiffs motion for summary judgment is now ready for decision.

         STANDARD OF REVIEW

         Summary judgment is appropriate when the court is satisfied "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). The burden of showing the absence of any such "genuine issue" rests with the moving party:

[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any,' which it believes demonstrates the absence of a genuine issue of material fact.

Celotex v. Catrett, 477 U.S. 317, 323 (1986) (citing FED. R. CIV. P. 56(c)). A fact is "material" only if its resolution will affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Determination of whether a factual issue is "genuine" requires consideration of the applicable evidentiary standards. The court will view the summary judgment motion in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

         Summary judgment should be granted if a party who bears the burden of proof at trial does not establish an essential element of their case. Tolton v. American Biodyne, Inc., 48 F.3d 937, 941 (6th Cir. 1995) (citing Celotex, 477 U.S. at 322). Accordingly, "[t]he mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Copeland v. Machulis,57 F.3d 476, 479 (6th Cir. 1995) (citing Anderson, 477 U.S. at 252). Moreover, if the evidence presented is "merely colorable" and not "significantly probative," the court may decide the legal issue and grant summary judgment. Anderson, 477 U.S. at 249-50 (citations omitted). In most civil cases involving summary ...


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