Mackie v. Coconut Joe's IOP LLC

ORDER

DAVID C. NORTON UNITED STATES DISTRICT JUDGE

The following matter is before the court on defendants CJ Offering LLC (“CJ Offering”), Joe Petro (“Petro”), and Caitlin West's (“West”) (collectively, “defendants”) motion for summary judgment, ECF No. 36. For the reasons set forth below, the court grants in part and denies in part the motion.

I. BACKGROUND

This case arises out of an employment dispute between a restaurant employee, Mackie; the restaurant that employed him, defendant CJ Offering LLC (“Coconut Joe's”); Coconut Joe's former owner, Petro; and its general manager, West. In 2004, Mackie was hired as a server at Coconut Joe's, a restaurant on the Isle of Palms, South Carolina. Mackie's employment was somewhat erratic; on at least two occasions, Mackie abandoned his job and quit before eventually asking to be rehired. Both times,

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Mackie was rehired by Petro, Coconut Joe's former owner and general manager. Throughout his employment, Mackie worked several jobs and even attempted a managerial role, although he eventually stepped down from that position. ECF No. 36-6, Mackie Dep. at 218:9-22.

By all accounts, Mackie shared a close relationship with, Petro. Petro owned and operated the restaurant for over twenty-three years before he retired as general manager in January 2020 and sold the restaurant in June 2020. After his retirement, Petro's daughter, West, took over as general manager. According to defendants, Mackie and West had a sour relationship due to “West's jealousy, ” as “Petro supported [Mackie] over his daughter and reversed many of the decisions she made about [Mackie]'s employment.” ECF No. 36-1 at 3. Petro served as general manager at the beginning of the period in which Mackie alleges Coconut Joe's violated minimum wage laws. West was the general manager when Mackie's employment ended.

Coconut Joe's paid Mackie and the other servers $4.00 an hour. Additionally, the servers were required to contribute 3% of their tips into a tip pool, up to a maximum of $50.00 per day. Coconut Joe's management team would then distribute the tip pool among bartenders, hosts, and expeditors/server assistants, with each receiving 1% from the 3% taken from the servers. The expeditor-also known as an “expo”-was responsible for putting garnishes and sauces on plates, making nachos and salads, and ensuring that the right plates were on the correct tray.^[3] ECF No. 44 at 5. The position

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was filled by a “team approach.” ECF No. 36-1 at 4. All servers and bartenders were required to serve at least one shift per week as an expo or host. ECF No. 44 at 5. Despite this stated approach, at least one Coconut Joe's employee claimed to have worked exclusively as an expo during a summer season. Moreover, while Coconut Joe's pays its servers and bartenders $4.00 an hour, those same employees are paid between $8.00 to $12.00 per hour when serving as an expo.

Like many other restaurants, Coconut Joe's temporarily closed on March 18, 2020 in response to the COVID-19 pandemic. As the restaurant began to reopen its dining services in May 2020, West held a staff meeting in which she told employees that Coconut Joe's would not take any adverse employment actions against employees who elected not to be placed on the work schedule. In connection with its reopening during the pandemic, Coconut Joe's decided to take strong safety and health precautions. It required all employees to take a temperature check before starting their work shifts and to sign an attestation that they were not experiencing any COVID-19 symptoms. That attestation stated:

I attest that I'm in good health. I understand that if any time during my shift I begin to feel unwell, I should notify a manager immediately and leave the premises. I understand that failing to notify an employer of any exposure or possible illness is grounds for termination

ECF No. 44-9. Shortly after the May staff meeting, Mackie agreed to work at the restaurant when it opened for dine-in services.

On May 11, 2021-the day before the dining room was scheduled to open- Mackie learned that his brother, with whom he was living, was “desperately ill with all of the symptoms [of COVID].” ECF No. 47-5, Mackie Dep. at 116:4-8. Mackie notified West about his brother's symptoms, and West asked how Mackie felt. When Mackie said

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he felt “okay, ” West allegedly told him to go to work. Later, ^[4] Mackie relayed that his brother's symptoms had worsened, but West allegedly told Mackie, “Don't worry about it. Just go ahead and sign the sheet.” Id. at 116:14-18. Mackie testified that on May 12, he arrived to work at 10:30 a.m. and initially felt no symptoms. Despite this, Mackie allegedly approached West on three separate occasions before the restaurant opened to attempt to speak to her about his brother's symptoms. Each time, West allegedly rebuffed him, ordering him to go back to the kitchen. Then, within an hour of the restaurant opening, Mackie began to feel that he could not catch his breath. He attempted to speak to West again, but she cut him off, stating that she was busy, and things were extremely hectic. As a result, Mackie decided to approach who he believed to be the next person in the chain-of-command: Elizabeth Temple (“Temple”), an off-shift restaurant manager. Mackie testified that he told Temple that “I was short of breath and that I was afraid that I -- it was COVID symptom [sic]. I was afraid that I had it and needed to get diagnosis [sic].” Id. at 52:1-4. Temple told Mackie to “bring a doctors [sic] note back, ” which Mackie “read as permission” to leave. ECF No. 36-7, Mackie Dep. at 281:21-24.

Mackie left work and went home. At home, he left a message for his doctor describing his symptoms and his “perceived need to get tested.” ECF No. 36-3, Mackie Dep. at 53:16-18. After an hour, his doctor called back and diagnosed Mackie with an anxiety attack. Upon receiving the diagnosis, Mackie chose not to return to work.

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Mackie ultimately received a physician's note that recommended Mackie be excused from work for one week, which he provided to defendants.

Upon learning that Mackie had abandoned his shift, West sent Mackie a text message that read, “Since you left without permission, we will take that as you quitting your job here at Coconut Joe's.” ECF No. 36-1 at 8 (citing ECF No. 1, Compl. ¶ 46). Mackie responded several times that he had not intended to quit his job. Ultimately, West did not permit Mackie to continue working at Coconut Joe's.

On July 9, 2020, Mackie filed a complaint against defendants in this court, alleging (1) retaliation under the Families First Coronavirus Response Act (“FFCRA”) and (2) violation of the Fair Labor Standards Act (“FLSA”).

On August 2, 2021, defendants filed their motion for summary judgment. ECF No. 36. Mackie filed a response on September 1, 2021, ECF No. 40, but subsequently moved to strike it with leave to re-file, ECF No. 41. Mackie filed an amended response to the motion for summary judgment on September 7, 2021, ECF No. 44, and defendants replied on September 14, 2021, ECF No. 49. After his response, but before defendants' reply, Mackie filed additional exhibits in support of his response on September 8, 2021. ECF No. 47. On September 14, 2021, defendants filed a motion to strike, exclude, or otherwise decline to consider those filings due to their untimeliness. ECF No. 48. Mackie responded to defendants' motion to strike on September 27. ECF No. 50. Defendants did not file a reply in support of their motion, and the time to do so has now expired. The court held a telephonic hearing on the motion for summary judgment on October 13, 2021. ECF No. 51. As such, all motions have been fully briefed and are now ripe for review.

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II. STANDARD

Summary judgment shall be granted if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). “By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Id. at 248. “[S]ummary judgment will not lie if the dispute about a material fact is ‘genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. “[A]t the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Id. at 249. The court should view the evidence in the light most favorable to the non-moving party and draw all inferences in its favor. Id. at 255.

III. DISCUSSION

As a preliminary matter, the court first addresses defendants' motion to strike, exclude, or otherwise decline to consider the additional attachments filed on September 8 because the determination of which exhibits the court may consider could impact whether summary judgment is appropriate. Finding that it may properly consider the exhibits, the court then addresses the substance of defendants' motion for summary judgment.

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A. Motion to Strike, Consider, or Otherwise Not Consider

Mackie's deadline to file a response in...