HOANG

v.

DORAL 888 LLC

This matter is before the Court on three pending motions: Defendant Kenny Tang’s Motion for Judgment on the Pleadings at docket entry 52, Kenny Tang’s Motion for Summary Judgment at docket entry 57, and Plaintiff’s Motion for Partial Summary Judgment at docket entry 53. Each motion has been fully briefed. For the reasons set forth below, each motion is denied.

I. BACKGROUND

This is a case about overtime pay. Plaintiff is a hibachi cook. DE 30 at 2. He alleges that he was not compensated for overtime while working for the Defendants and has brought this case under the Fair Labor Standards Act. Id. at 5. In response, the Defendants contend that Plaintiff is not entitled to overtime pay because, inter alia, Plaintiff is a creative professional that, as a matter of law, is exempt from the Fair Labor Standards Act. The parties have filed cross motions, with Plaintiff contending that he is entitled to judgment as a matter of because he is clearly not a creative professional exempt from the Fair Labor Standards Act, and the Defendants contending that Plaintiff clearly is a creative professional. Succinctly stated, the Court denies the parties’ cross motions because the characterization of Plaintiff’s employment—whether or not he is a creative professional—is a question for the finder of fact,¹ not this Court.

II. LEGAL STANDARD

Summary judgment is appropriate if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The existence of a factual dispute is not by itself sufficient grounds to defeat a motion for summary judgment; rather, “the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A dispute is genuine if “a reasonable trier of fact could return judgment for the non-moving party.” Miccosukee Tribe of Indians of Fla. v. United States, 516 F. 3d 1235, 1243 (11th Cir. 2008) (citing Anderson, 477 U.S. at 247-48). A fact is material if “it would affect the outcome of the suit under the governing law.” Id. (citing Anderson, 477 U.S. at 247-48). In deciding a summary judgment motion, the Court views the facts in the light most favorable to the non-moving party and draws all reasonable inferences in that party’s favor. See Davis v. Williams, 451 F. 3d 759, 763 (11th Cir. 2006). The Court does not weigh conflicting evidence. See Skop v. Atlanta, 485 F. 3d 1130, 1140 (11th Cir. 2007). Thus, upon discovering a genuine dispute of material fact, the Court must deny summary judgment. See id.

III. ANALYSIS

The parties have filed two motions for summary judgment and one motion for judgment on the pleadings. Below, the Court analyzes each motion separately.

A. The Defendant’s Motion for Partial Summary Judgment Defendant Kenny Tang seeks summary judgment on three points. First, Mr. Tang argues that, as a matter of law, Plaintiff is exempt from the Fair Labor Standards Act (FLSA) as a creative professional. Second, Mr. Tang argues that the record evidence establishes that he is not an employer, as that term is defined in the FLSA, and, as a result, he cannot be found liable in this case. Third, Mr. Tang argues that summary judgment should be entered in his favor for Plaintiff’s fourth count, a claim for retaliation. The Court addresses each of Mr. Tang’s three issues in turn. 1. Whether Plaintiff is Exempt from the FLSA as a Creative Professional Mr. Tang argues in his motion that Plaintiff is a creative professional under the FLSA as a matter of law. In Part (A)(1)(a), the Court summarizes the law on creative professionals. The Court then explains three reasons why it declines to decide at summary judgment whether Mr. Tang is a creative professional. In Part (A)(1)(b), the Court determines that Mr. Tang failed to include facts on this issue in his Statement of Material Facts as required by Local Rule 56.1. In Part (A)(1)(c), the Court finds that the only fact in Mr. Tang’s Statement that could arguably relate to the creative professional exemption—that Plaintiff prepared different types of food on a large grill—does not satisfy Mr. Tang’s threshold burden as the movant to show that Plaintiff is a creative professional. Third and finally, in Part (A)(1)(d), the Court holds that if Mr. Tang had sufficient evidence to satisfy his burden as the movant, Plaintiff has provided sufficient counterevidence to create a genuine factual dispute on this material issue. a. Creative Professionals Under the FLSA

Under the FLSA, employers must pay time and a half for any hours an employee works over forty during the workweek. 29 U.S.C. § 207(a)(1). The FLSA also requires employers to pay employees at least a statutory minimum wage for hours worked. 29 U.S.C. § 206. Section 213 of the FLSA carves out exemptions to the maximum hour and minimum wage requirements in Sections 206 and 207. See 29 U.S.C. § 213. One such exemption is for bona fide professionals. See 29 C.F.R. § 541.30. To be a bona fide professional, an employee must (i) earn $684 or more per week on a salary or fee basis; and (ii) have a primary duty “[r]equiring knowledge of an advanced type” or “[r]equiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor.” 29 C.F.R. § 541.300(a). “Salary basis” means that “the employee regularly receives each pay period on a weekly, or less frequent basis, a predetermined amount constituting all or part of the employee’s compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed.” 29 C.F.R. § 541.602. “Fee basis” means “the employee is paid an agreed sum for a single job regardless of the time required for its completion.” 29 C.F.R. § 541.605. One subset of bona fide professionals is the category of creative professionals. See 29 C.F.R. § 541.302. To qualify as a creative professional, “an employee’s primary duty must be the performance of work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor as opposed to routine mental, manual, mechanical or physical work.” 29 C.F.R. § 541.302(a). Department of Labor (DOL) guidelines note that chefs may qualify as a creative professional to the extent that their primary duty is a creative endeavor like “regularly creating or designing unique dishes and menu items.” Defining and Delimiting the

Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees, 69 Fed. Reg. 22,122, 22,154 (Apr. 23, 2004). However, the DOL acknowledges the “wide variation in duties of chefs,” and specifies that “[t]he Department intends that the creative professional exemption extend only to truly ‘original’ chefs, such as those who work at five-star or gourmet establishments, whose primary duty requires ‘invention, imagination, originality, or talent.’” Id. Courts generally have been unwilling to hold that chefs fall under the creative professional exemption as a matter of law on summary judgment. See Karropoulos v. Soup du Jour, Ltd., 128 F. Supp. 3d 518, 536-37 (E.D.N.Y. 2015) (deferring to DOL guidelines and denying summary judgment on the basis that, while the plaintiff helped create new menus for the restaurant, there were still genuine issues of material fact as to whether this was his primary duty and whether the restaurant was gourmet); Seok Hwi Cha v. YP’s Kani, Inc., 317 F. Supp. 3d 1215, 1219 (N.D. Ga. 2018) (holding that customizing dishes for customers, offering menu suggestions, and assisting in creating the menus did not demonstrate that sushi chef’s primary duty required invention, imagination, originality or talent as a matter of law); Eren v. Gulluoglu LLC, No. 15-CV-4083, 2017 WL 4351516, at *3 (E.D.N.Y. Sept. 30, 2017) (denying summary judgment because although defendants adequately demonstrated the experience and talent of plaintiffs, they did not show how that talent was applied to an innovative and imaginative task); see also Stih v. Rockaway Farmers Mkt., Inc., No. 22-CV-3228, 2023 WL 2760492, slip op. at

*4 (E.D.N.Y. Apr.³, 2023) (finding that plaintiff’s pleadings stating that his duties involved cooking did not sufficiently demonstrate that he fit within the creative professional exemption for defendants to prevail on their motion to dismiss). The Court now turns to its application of the law to Mr. Tang’s motion. b. Mr. Tang Failed to Follow the Summary Judgment Procedures in Local Rule 56.1 Because Mr. Tang makes his argument in a motion for summary judgment, he is required, pursuant to Local Rule 56.1, to provide citations to record evidence in support of his contention in a separate document—a statement of material facts. The purpose of Local Rule 56.1 is to provide the requisite notice to the party opponent of all the facts the movant believes are undisputed. If a fact is not listed in the statement of material facts, the party opponent is not clearly informed of the need to dispute the fact. On the issue of whether Plaintiff’s duties require the kind of “invention, imagination, originality or talent” that would qualify him as a creative professional,² Mr. Tang did not include any supportive facts in his statement of material facts. On this procedural basis alone—Mr. Tang’s failure to include facts and citations to record evidence in his statement of material facts— the Court denies Mr. Tang’s requested relief for the following reasons. Mr. Tang’s failure to include his facts and citations in a statement of material facts is not harmless error. By failing to include his record evidence in his statement of facts, Plaintiff was deprived of the opportunity to file counterevidence that clearly disputed Mr. Tang’s record

Statement of Material Facts as Local Rule 56.1 requires, Mr. Tang falls short of his threshold burden of persuasion.³ When seeking summary judgment, “[t]he movant bears the responsibility for demonstrating the basis for the summary judgment motion.” Allen v. Bd. of Pub. Educ. for Bibb Cnty., 495 F. 3d 1306, 1313 (11th Cir. 2007). The movant has “the initial burden of showing the court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial.” Id. As mentioned above, “[a]n issue is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

In his response, Plaintiff disputes that the foods were “distinct,” citing to Plaintiff’s own affidavit to support the contention that the foods were ordered directly from a menu. DE 59 at ¶ 2. Plaintiff also cites evidence for the proposition that Plaintiff “neither regularly nor ever created or designed any dishes or menu items, let alone unique ones.” Id. at ¶ 29. Second, Plaintiff cites evidence that he “did not use his intellect or creativity in performing his job; rather, in preparing the hibachi meal for the customers, his primary duty involved grilling the hibachi food, using routine mental, manual, mechanical, and physical work, with tools.” Id. at ¶ 30.

These facts demonstrate that there remains a genuine issue of material fact as to whether Plaintiff is a creative professional. First, the DOL guidelines emphasize the importance of tasks like the creation and design of unique menu items in determining whether a chef is a creative professional. 69 Fed. Reg. 22,122, 22,154 (Apr. 23, 2004); see also Falken v. Glynn Cnty., 197 F. 3d 1341, 1350 (11th Cir. 1999) (“We must defer to the DOL’s interpretation of its FLSA regulations unless the interpretation is ‘plainly erroneous or inconsistent with the regulation.’” (citing Auer v. Robbins, 519 U.S. 452, 461 (1997)). Courts have denied summary judgment on the basis that a chef only assisted in creating a restaurant’s menu. See, e.g., Seok Hwi Cha v. YP’s Kani, Inc., 317 F. Supp. 3d 1215, 1219 (N.D. Ga. 2018). Here, Mr. Tang has provided no evidence that Plaintiff contributed to the menu at all, and Plaintiff has provided evidence that he did not create any menu items. Second, Mr. Tang’s evidence does not refer at all to Plaintiff’s primary duty, even though a chef’s primary duty is what governs inclusion in the creative professional exemption. Instead, only Plaintiff provides evidence of his primary duty, and in doing so supports the proposition that his primary duty was more like routine manual work than creativity. Third, neither party addresses another key point in the DOL regulations: whether the restaurant was gourmet. Therefore, taking these facts in the light most favorable to Plaintiff as the non-movant, the Court finds that Mr. Tang has failed to demonstrate, as a matter of law, that Plaintiff was exempt from the FLSA as a creative professional. There remains a genuine issue of material fact as to whether Plaintiff’s duties required the kind of innovation or imagination necessary to satisfy the creative professional exemption. 2. Whether Mr. Tang was Plaintiff’s Employer

Under the FLSA, an employee may seek damages not only from an employer company, but also from an employing individual, provided the individual is someone who “asserts control over the conditions of the employee’s employment.” Josendis v. Wall to Wall Residence Repairs, Inc., 662 F. 3d 1292, 1298 (11th Cir. 2011). Mr. Tang argues that the record evidence in this case clearly establishes that he did not assert control over Plaintiff or otherwise act as Plaintiff’s employer; thus, Mr. Tang argues that he is exempt from liability. Mr. Tang falls short here for the same reason as above: he failed to provide citations to record evidence supporting his contention in a statement of material facts under Local Rule 56.1. On this issue—whether Mr. Tang was Plaintiff’s employer—Mr. Tang has provided no facts or citations to evidence in his statement of material facts.⁴ The Court therefore denies Mr. Tang’s requested relief for the same reasons in Part (A)(1)(b) above. In the alternative, the Court denies Mr. Tang’s requested relief on another ground. In his Motion for Summary Judgment, Mr. Tang cites to “Plaintiff’s Verified Motion for Temporary or Permanent Injunction” which he filed in a state court case. Assuming arguendo that Mr. Tang cites to this document for the proposition that he was not Plaintiff’s employer, and also assuming that this document qualifies as evidence the Court may consider at summary judgment under Rule 56(c), the document does not fully support Mr. Tang’s proposition.

3. Plaintiff’s FLSA Retaliation Claim, Count IV Mr. Tang argues that Plaintiff’s fourth claim, a retaliation claim, fails as a matter of law. Plaintiff’s Count IV alleges that Mr. Tang filed a state-court lawsuit against Plaintiff in retaliation for Plaintiff asserting his rights under the FLSA. Mr. Tang argues that he is entitled to summary judgment on Count IV for three reasons. First, Mr. Tang argues that at the time the state-court suit was filed, Plaintiff was no longer an employee and, therefore, was no longer covered by the FLSA. For authority, Mr. Tang cites to a single district court order that conducted no analysis on the subject and did not rest its

1074 (7th Cir. 1998) (“A state absolute privilege purporting to confer immunity from suit cannot defeat a federal cause of action.”)). Thus, Mr. Tang is not entitled to summary judgment on Count IV on this basis.

Third and finally, Mr. Tang argues that he is entitled to summary judgment because his state court case is “not groundless but based upon the facts and law.” DE 57 at 15. The Court is unaware of a legal basis for it to adjudicate on summary judgment whether a state-court case has merit, and Mr. Tang has provided none. In any event, Plaintiff responds with argument as to why, in his opinion, the state-court case is groundless and without merit. DE 58 at 18-20. The Court therefore concludes that, at a minimum, there is an open question as to whether the state court case is groundless, and the Court is unpersuaded that it should grant Mr. Tang summary judgment on Count IV on this basis. The Court is concerned, however, about how Count IV can be submitted to a jury. More specifically, the Court poses the following questions to the parties: How can a jury decide whether the state-court case is groundless? Relatedly, upon what authority does Plaintiff suggest that such a question is appropriate for a jury’s consideration? How would a jury be instructed to determine whether a state-court case is groundless? And finally, should Count IV be dismissed, severed, or stayed until such time as the state court case is adjudicated? The parties are ORDERED to file supplemental briefing that addresses the Court’s questions by November 7, 2023. The supplemental briefing shall be no more than ten pages. B. Plaintiff’s Cross-Motion for Partial Summary Judgment Turning to Plaintiff’s cross-motion, Plaintiff’s Motion for Partial Summary Judgment is premised upon the contention that (i) Plaintiff was not compensated for the final days of his employment and (ii) Plaintiff is therefore entitled to damages under the FLSA as a matter of law. In his Response, Mr. Tang argues that Plaintiff, as a creative professional, is exempt from the requirements of the FLSA. If Plaintiff was exempt, Mr. Tang argues, no Defendant can be liable under the FLSA for the alleged failure to compensate Plaintiff for the final days of his employment. Thus, if Mr. Tang raises a genuine issue of material fact as to whether Plaintiff was a creative professional, that genuine issue means that Plaintiff’s motion for summary judgment must be denied. Above, in Part (A)(1), the Court concluded that Mr. Tang failed to meet his summary judgment burden (in the context of his own motion) to establish that, as a matter of law, Plaintiff was a creative professional. The Court did not address the inverse question of whether Plaintiff, as a matter of law, was not an exempt creative professional. The Court does so now. As discussed above in Part (A)(1)(a), for an employee to be a creative professional two distinct requirements apply: the employee must be compensated on a salaried or fee basis and the employee’s duties must involve invention, imagination, originality, or talent. Mr. Tang has filed in the court record⁶ evidence relevant to both requirements—Plaintiff’s compensation and Plaintiff’s duties. The Court discusses each category of evidence in turn. As for Plaintiff’s compensation, Mr. Tang has provided evidence that Plaintiff was paid over $684 per week on a salary or fee basis. More specifically, in Mr. Tang’s deposition he testified that Plaintiff was paid $190.00 per shift. DE 56-7 at 53:18-24.7 Plaintiff also was

Court is unpersuaded that Mr. Tang is not exempt from the FLSA’s requirements as a matter of law and the Court denies Plaintiff’s motion for partial summary judgment.⁸ C. Defendant Tang’s Motion for Judgment on the Pleadings

Defendant Tang’s Motion for Judgment on the Pleadings seeks adjudication of two issues that the Court has already discussed: (i) whether Plaintiff is a creative professional and (ii) whether Plaintiff’s Count IV should be dismissed pursuant to Florida’s litigation privilege. A Court may only grant a motion for judgment on the pleadings, however, when the non-moving party could “prove no set of facts which would allow it to prevail.” Palmer & Cay, Inc. v. Marsh & McLennan Cos., Inc., 404 F. 3d 1297, 1303 (11th Cir. 2005). As the Court has already discussed, Plaintiff has record evidence in support of the proposition that (i) he is not a creative professional and (ii) that Count IV should not be dismissed pursuant to Florida’s litigation privilege. Thus, Plaintiff does have a set of facts which would allow him to prevail, should a jury decide to credit his evidence. Accordingly, Mr. Tang’s Motion for Judgment on the

Pleadings is denied.

IV. CONCLUSION

For the foregoing reasons, Defendant Tang’s Motion for Judgment on the Pleadings [DE 52], Defendant Tang’s Motion for Summary Judgment [DE 57], and Plaintiff’s Motion for Partial Summary Judgment [DE 53] are all DENIED. Additionally, this matter is hereby REFERRED for a settlement conference before the Honorable Magistrate Judge Bruce E. Reinhart, to be conducted no later than November 22, 2023. The parties are ORDERED to contact the

UNITED STATES DISTRICT J UDGE

Copies furnished to: Counsel of Record