UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

WEST PALM BEACH DIVISION

KRISTEN BALFOUR-DUNLAP,

CASE NUMBER:

Plaintiff,

v.

MERCATO 2401 INC. d/b/a CARMINE’S

GOURMET MARKET, NANTUCKET

MANAGEMENT INC., and

CARMINE GIARDINI,

Defendants.

____________________________________/

COMPLAINT FOR VIOLATION OF THE FLSA SECTION(§207)

Plaintiff, KRISTEN BALFOUR-DUNLAP (“Plaintiff” or “Balfour”), by and through

her undersigned counsel, herein sues Defendants, MERCATO 2401 INC. d/b/a CARMINE’S

GOURMET MARKET (“Mercato”), NANTUCKET MANAGEMENT INC., (“Nantucket”)

and CARMINE GIARDINI (“Giardini”) (collectively “Defendants”), pursuant to 29 U.S.C.

§216 of the Fair Labor Standards Act (the “FLSA”) and states as follows:

PRELIMINARY STATEMENT

1. Plaintiff Kristen Balfour-Dunlap, brings this action for violation of federal wage

and hour laws pursuant to the Fair Labor Standards Act, 29 U.S.C. §201, et seq., (the “FLSA”).

Plaintiff alleges that she is entitled to unpaid overtime wages, as required by 29 U.S.C. §207.

Plaintiff also seeks recovery of unpaid bonuses or commissions pursuant to contract law as per

the laws of the State of Florida.

2. The Fair Labor Standards Act is our nation’s foremost wage law. The Act was

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intended to tackle the twin evils of "overwork" and "underpay." Overnight Motor Transp. Co. v.

Missel, 316 U.S. 572, 578, 62 S. Ct. 1216, 86 L. Ed. 1682 (1942). In sum, the FLSA was

“designed to raise substandard wages and to give additional compensation for overtime work ...

thereby helping to protect this nation ‘from the evils and dangers resulting from wages too low

to buy the bare necessities of life and from long hours of work injurious to health.’” United

States v. Rosenwasser, 323 U.S. 360, 361 (1945) (quoting Sen. Rep. No. 884 (75th Conf., 1st

Sess.)). See 29 USC § 202.

3. Plaintiff’s job or position working for Defendants as a Catering Manager is a

non-exempt position under the FLSA, involving non-exempt office type duties and routine and

repetitive tasks.

4. Defendant did pay Plaintiff 1.5 times her hourly rate for hours worked in excess

of 40 in a week. However, pursuant to unlawful pay practice and company policy,Defendants

willfully underpaid the Plaintiff by not including her commissions in her regular rate of pay

calculation.

5. Plaintiff’s primary job duties as an employee of Defendants consisted primarily

of selling and executing catering orders, pick ups, deliveries and servicing catering events on

Defendants’ behalf.

6. Throughout Plaintiff’s employment with Defendants he was required to work in

excess of forty (40) hours per week in order to complete his job duties and responsibilities and

was never paid at the correct overtime rate.

7. The allegations in this pleading are made without any admission that, as to any

particular allegation, Plaintiff bears the burden of pleading, proof, or persuasion. Plaintiff

reserves all rights to plead in the alternative.

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PARTIES, JURISDICTION AND VENUE

8. This Court has subject matter jurisdiction over Plaintiff’s FLSA claim pursuant

to 28 U.S.C. §1331, because this action involves a Federal Statute, 29 U.S.C. §201, et seq.

9. This Court has personal jurisdiction over this action because Defendants operate

substantial business in Palm Beach County, Fkiruda from their corporate office and where the

unlawful pay practices originated.

10. Venue is proper to this Court pursuant to 29 U.S.C. §216(b).

11. This Court has supplemental jurisdiction over the state law claims pursuant to 28

U.S.C. §1367. The state law claims are so related to the FLSA claims and also arise out of the

same common nucleus of operative facts such that they form part of the same case or

controversy.

12. At all times relevant to this action, Plaintiff was an employee of Defendants

within the meaning of 29 U.S.C. §203(e)(1).

13. Defendant Mercato 2401 Inc. is a Florida for profit corporation with its principal

address located at 2401 PGA Blvd. Suite 172, Palm Beach Gardens, Florida 33410 and may be

served through its registered agent, Carmine Giardini, at the same address.

14. Defendant Mercato 2401 Inc. is the owner of the fictitiously named Carmine’s

Gourmet Market.

15. Defendant Nantucket Management Inc. is a Florida for profit corporation with its

principal address located at 2401 PGA Blvd. Suite 172, Palm Beach Gardens, Florida 33410

and may be served through its registered agent, Carmine Giardini, at the same address.

16. Defendant Carmine Giardini, is an employer of the Plaintiff within the meaning

of the FLSA as he is the President of Mercato and Nantucket, and upon information and belief,

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the owner of both companies.

17. Upon information and belief, Defendant Giardini also created and was

responsible for the unlawful pay practices at issue here, and had the authority to hire and fire

employees and control the employees’, including Plaintiff, and directed her work schedule,

work requirements and methods of payment and compensation plans.

18. As an officer, manager and/or owner of Defendants Mercato and Nantucket,

Giardini is an employer within the meaning of the FLSA. See In re Van Diepen, P.A., 236 Fed.

Appx. 498, 12 Wage & Hour Cas. 2d (BNA) 1358 (11th Cir. 2007) (allowing individual

liability).

19. The overtime wage provisions set forth in 29 U.S.C. §207 apply to Defendants,

as they engage in interstate commerce under the definition of the FLSA, employed two (2) or

more persons, and upon information and belief grossed more than $500,000.00 in operating

revenue during each of the last fiscal year.

GENERAL ALLEGATIONS

20. Plaintiff was employed by Defendants as a Catering Manager from approximately

March 2018 to January 1, 2020.

21. Plaintiff contracted with Defendants to be paid $15.00 per hour plus overtime and

a 5% commission on all food sales. See Exhibit 1, Contract.

22. At all times relevant, Defendants treated Plaintiff as a non-exempt employee

under the FLSA, and she was paid an hourly wage and overtime at the rate of 1.5 times her

hourly rate for each hour worked in excess of 40 in a workweek.

23. Defendant Nantucket was the payroll company through which Defendants

Mercato and Giardini paid Plaintiff.

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24. Plaintiff’s paystubs reflect that her compensation consisted of three (3) parts:

commissions, hourly or “regular,” paid at $15.00 per hour, and “overtime,” paid at $22.50 per

hour. See Exhibit 2, Example Paystub.

25. Pursuant to federal regulations, Plaintiff’s commissions must be factored into the

overtime rate she was to be paid. See 29 CFR §§ 778.108, 778.117, 778.118.

26. As exhibited by her paystubs, Defendants did not adjust Plaintiff’s overtime rate

to include commissions, and instead paid her at the rate of 1.5 times her hourly rate.

27. Regardless of the job titles Defendants applied to Plaintiff’s job, she spent her

time performing laborious, routine and repetitive job duties which under the FLSA and DOL

regulations fall squarely under the realm as non-exempt job duties.

28. Plaintiff’s job position was subject to the FLSA wage provisions and she is a

covered employee within the meaning or definition of Section 203 of the FLSA.

29. Under the terms of the written contract, Defendants were to pay Plaintiff a 5%

commission on all food sales. Defendants have failed to pay Plaintiff all of the commissions she

earned.

30. Specifically, Defendants have refused to pay Plaintiff commissions earned during

the last weeks of her employment.

31. Furthermore, Defendants refused to pay Plaintiff a commission on all food sales

of $150.00 or less, despite the fact that there is no such limitation or exclusion contained in the

written contract.

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COUNT I

FAILURE TO PAY OVERTIME COMPENSATION

IN VIOLATION OF THE FLSA 29 U.S.C. § 207.

32. Plaintiff adopts and realleges the allegations set forth in the foregoing paragraphs

as if fully set forth herein.

33. Plaintiff was an employee of Defendants within the meaning of 29 U.S.C.

§203(e)(1).

34. Defendants were Plaintiff’s “employers” within the meaning of 29 U.S.C.

§203(d).

35. The overtime wage provision set forth in FLSA §207 applies to Defendants as

they were engaged in commerce under the definition of the FLSA, employ two (2) or more

employees and have revenues greater than $500,000.

36. Throughout Plaintiff’s employment with Defendants, she was treated as a

non-exempt employee and was paid overtime, but was not paid overtime compensation at the

correct overtime rate for all hours worked in excess of forty (40) in a workweek.

37. Instead of paying Plaintiff the correct overtime rate, Defendants merely paid

Plaintiff 1.5 times her hourly rate and failed to factor in her earned commissions as required by

federal regulation.

38. The plaintiff should have been paid time and 1⁄2 her regular rate of pay for all

overtime hours worked, and not just time and one half her base hourly rate. See 29 CFR §

778.108.

39. Pursuant to 29 CFR §§ 778.108, 778.117, 778.118 the regular rate of pay should

have included Plaintiff’s commissions/bonuses in the calculation, but, Defendant willfully chose

to exclude it, or, alternatively Defendants paid her with reckless disregard for the DOL

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regulation and the FLSA requirements.

40. Plaintiff did not supervise two (2) or more full time employees, and her job did

not involve the exercise of discretion and independent judgment in matters of significance

affecting the company which the Administrative exemption would require.

41. Plaintiff’s job neither meets any professional exemption or any other exemption

under the FLSA which Defendants would have any good faith basis under the FLSA for their

willful unlawful pay practice of refusing and failing to pay Plaintiff the correct premium for all

overtime hours worked.

42. Defendants are, or should have been aware of the FLSA overtime requirements,

as they have many employees.

43. Defendants knew or should have known that failing to pay Plaintiff the correct

premium for the overtime hours she worked was a willful violation of the FLSA.

44. Therefore, Defendants willfully and intentionally engaged in a pattern and

practice of violating the overtime provisions of the FLSA by refusing to pay the correct overtime

rate to Plaintiff for all hours worked in excess of forty (40) per week, and did so solely as a

scheme and plan to evade the overtime wage requirement of the FLSA and to maximize profits.

45. As a direct result of Defendants’ violations of the FLSA, Plaintiff suffered

damages by being denied all of the overtime wages due to her in accordance with §207 and

§216(b) of the FLSA.

46. Defendants have not made a good faith effort to comply with the FLSA with

respect to its compensation of Plaintiff.

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COUNT II

BREACH OF CONTRACT

47. Plaintiff adopts and realleges paragraphs 1 through 31 as if fully set forth and

herein.

48. Under the terms of the written contract between the Parties, Defendants promised

to pay Plaintiff a 5% commission on all food sales.

49. Defendant consummated sales prior to the termination of her employment which

thus entitled her to payment of commissions, and which are accrued and earned commissions.

50. Defendants have refused to pay Plaintiff all of the commissions she earned

towards the end of her employment with Defendants.

51. Additionally, Defendants refused to pay Plaintiff a commission on food sales of

$150.00 or less, despite the fact that this limitation or exclusion is not in the written contract.

52. Accordingly, Defendants breached the contract to pay Plaintiff all of the

commissions earned and due to her.

53. Plaintiff sought to resolve this dispute with Defendants, but to no avail, and they

have willfully refused to honor the contractual promise.

54. As a direct and proximate result of Defendant’s breach of this agreement, Plaintiff

has suffered financial harm.

55. Moreover, the regular rate of pay for Plaintiff must include the value of this bonus

or commission, and the failure to honor and pay Plaintiff this bonus or commission likewise

affects her regular rate of pay and overtime rates.

56. Plaintiff performed work at all times in Florida, such that Defendants are subject

to the wage laws of the State of Florida.

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57. Plaintiff is entitled to recover her reasonable attorney's fees and expenses of this

litigation incurred in recovering her commissions, pursuant to F.S. § 448.08.

WHEREFORE, Plaintiff, Kristen Balfour-Dunlap, demands judgment against

Defendants for all overtime compensation owed, and an equal sum in liquidated damages, and

payment of her reasonable attorneys’ fees and costs pursuant to § 216 of the FLSA. Plaintiff also

demands judgment against Defendants for all commissions due, interest up through the date of

trial, and payment of her attorney’s fees and costs as per F.S. § 448.08, and such other and

further equitable relief that the Court deems just and proper.

 Dated May 15, 2020.

Respectfully submitted by,

/s/ Mitchell L. Feldman, Esq.

Mitchell L. Feldman, Esq.

Florida Bar No.: 0080349

Feldman Legal Group

6940 W. Linebaugh Ave, #101

Tampa, Florida 33625

Tel: (813) 639-9366 - Fax: (813) 639-9376

Email: mlf@feldmanlegal.us

Secondary: lschindler@feldmanlegal.us

Attorney for Plaintiff

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