Opinion
Civil Case No. 18-cv-01135-LTB-GPG
2020-12-14
Jasper OTT, Plaintiff, v. CHACHA IN ART LLC, d/b/a Cha Cha Gallery, Veronique Sabatina Eugenie Charlotte Lea Souki, an individual, and Charif D. Souki, an individual, Defendants.
Penn Anderson Dodson, Anderson Dodson, P.C., New York, NY, for Plaintiff. Benjamin Bernell, Dillon Ferguson, Pillsbury Winthrop Shaw Pittman, LLP, Austin, TX, Vance Orlando Knapp, Armstrong Teasdale, LLP, Denver, CO, for Defendants ChaCha in Art LLC, Charlotte Lena Souki Veornique Sabatina Eugene. Dillon Ferguson, Pillsbury Winthrop Shaw Pittman, LLP, Austin, TX, Vance Orlando Knapp, Armstrong Teasdale, LLP-Denver, Denver, CO, for Defendant Charif D. Souki.
Penn Anderson Dodson, Anderson Dodson, P.C., New York, NY, for Plaintiff.
Benjamin Bernell, Dillon Ferguson, Pillsbury Winthrop Shaw Pittman, LLP, Austin, TX, Vance Orlando Knapp, Armstrong Teasdale, LLP, Denver, CO, for Defendants ChaCha in Art LLC, Charlotte Lena Souki Veornique Sabatina Eugene.
Dillon Ferguson, Pillsbury Winthrop Shaw Pittman, LLP, Austin, TX, Vance Orlando Knapp, Armstrong Teasdale, LLP-Denver, Denver, CO, for Defendant Charif D. Souki.
ORDER
LEWIS T. BABCOCK, JUDGE
This matter is before me on cross motions for summary judgment. Plaintiff's Motion for Summary Judgment is filed by Jasper Ott, in which he seeks judgment in his favor on his claims, as well as on the counterclaims filed by Defendant ChaCha in Art LLC, d/b/a Cha Cha Gallery (the "Gallery"). [Doc #103 ] Defendants’ Motion for Summary Judgment is filed by the Gallery, as well as by Veronique Sabatia Eugenie Charlotte Lea Souki and Charif D. Souki, as individuals, seeking summary judgment in their favor and against Plaintiff on his claims. [Doc #102 ] Both motions have been fully briefed. Oral arguments would not materially assist me in my determination. After consideration of the parties’ briefs, and for the reasons stated, I GRANT Defendants’ request for summary judgment in its favor on Plaintiff's claims, and I DISMISS WITHOUT PREJUDICE the Gallery's counterclaims.
I. BACKGROUND
Plaintiff worked at the Gallery – a "downtown Aspen high-end art gallery" owned by Defendant ChaCha In Art LLC – from January 10, 2016 until he was terminated on February 2, 2018. It is undisputed that while employed at the Gallery Plaintiff's salary was $3,000 per month, regardless of how many hours he worked over 40 hours a week, plus occasional additional sales commissions and use of an apartment located above the Gallery. [Doc #103-8 pg. 41]
Defendant Veronique Sabatina Eugenie Charlotte Lea Souki ("Ms. Souki") is the founder of the Gallery and, Plaintiff contends, actively participated in the business of the Gallery and was his day-to-day boss and supervisor. Defendant Charif D. Souki ("Mr. Souki") is married to Ms. Souki, and is the owner of ChaCha in Art LLC and of the Gallery. Defendants maintain that Mr. Souki has the authority to hire and fire employees of the Gallery, and it is undisputed that he terminated Plaintiff on February 2, 2018.
The parties disagree as to the nature of Plaintiff's job while he was employed at the Gallery. Plaintiff asserts that he was essentially a "shop clerk" and that his duties were to open and be physically present in the Gallery, greet and talk to the guests about the art, maintain the Gallery, and process sales. [Doc #103 pg. 11] Defendants contend that Plaintiff held the job and title of General Manager, and although he did not actively manage other employees, he ran the Gallery and oversaw its operations. [Doc #102 pg. 4]
After he was terminated, Plaintiff filed this lawsuit in which he asserted various wage and overtime compensation claims against Defendants pursuant to the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 201, et seq. (the "FLSA"), the Colorado Wage Claim Act, § 8-4-101, et seq. , and the Colorado Minimum Wage Act, C.R.S. § 8-6-101, et seq. Plaintiff also raised a claim for invasion of privacy based on his allegation that Defendants used a photograph of him in its advertising for the Gallery without Plaintiff's knowledge or consent. [Doc #1] The Gallery filed counterclaims against Plaintiff for breach of duty and interference with contract. [Doc #8] Plaintiff subsequently filed an amended complaint in which he raised additional claims of retaliation (based on the filing of baseless counterclaims) [Doc #21], and, in response, the Gallery filed additional counterclaims for unjust enrichment and forfeiture of compensation/disgorgement. [Doc #22]
The parties, in their respective motions at issue here, both seek summary judgment in their favor, as a matter of law, on Plaintiff's claims. [Docs #102 & #103] In addition, Plaintiff seeks judgment against the Gallery on its counterclaims. [Doc #103 pg. 23]
II. STANDARD OF REVIEW
The purpose of a summary judgment motion under Fed.R.Civ.P. 56 is to assess whether trial is necessary. White v. York Int'l Corp. , 45 F.3d 357, 360 (10th Cir. 1995). Fed.R.Civ.P. 56(c) provides that summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions, or affidavits show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. The non-moving party has the burden of showing that there are issues of material fact to be determined. Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
A party seeking summary judgment bears the initial responsibility of informing the court of the basis for its motion, and identifying those portions of the pleadings, depositions, interrogatories, and admissions on file together with affidavits, if any, which it believes demonstrate the absence of genuine issues for trial. Id. at 323, 106 S.Ct. 2548 ; Mares v. ConAgra Poultry Co., Inc. , 971 F.2d 492, 494 (10th Cir. 1992). Once a properly supported summary judgment motion is made, the opposing party must respond with specific facts showing the existence of a genuine factual issue to be tried. Otteson v. United States , 622 F.2d 516, 519 (10th Cir. 1980) ; Fed.R.Civ.P. 56(e). A dispute is "genuine" if the issue could be resolved in favor of either party. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ; Farthing v. City of Shawnee , 39 F.3d 1131, 1135 (10th Cir. 1994). A fact is "material" if it might reasonably affect the outcome of the case. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
The fact that the parties have filed cross-motions for summary judgment does not necessarily indicate that summary judgment is proper. See Atlantic Richfield Co. v. Farm Credit Bank of Wichita , 226 F.3d 1138, 1148 (10th Cir. 2000) ; James Barlow Family Ltd. Partnership v. David M. Munson, Inc. , 132 F.3d 1316, 1319 (10th Cir. 1997). Cross-motions for summary judgment are to be treated separately as the denial of one does not require the grant of another. Buell Cabinet Co. v. Sudduth , 608 F.2d 431, 433 (10th Cir. 1979).
III. PLAINTIFF'S CLAIMS
A. Wage Claims
Plaintiff seeks summary judgment in his favor on his claims against Defendants for failure to pay him overtime, because he asserts that the undisputed facts reveal that he was not an exempt employee under the FLSA's administrative exemption. Defendants assert that they are entitled to judgment in their favor because the facts are undisputed that Plaintiff was, in fact, a bona fide administrative employee as defined by the FLSA, and thus was exempt from its overtime mandates.
The FLSA requires employers to pay overtime compensation to employees who work more than 40 hours in a week, 29 U.S.C. § 207(a), but the FLSA exempts many categories of employees from this requirement. As relevant here, overtime pay does not apply with respect to "any employee employed in a bona fide executive, administrative, or professional capacity ...". 29 U.S.C. § 213(a)(1). The term "employee employed in a bona fide administrative capacity" means any employee: 1) who meets a threshold salary level; 2) whose "primary duty is the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer's customers;" and 3) whose "primary duty includes the exercise of discretion and independent judgment with respect to matters of significance." 29 C.F.R. § 541.200.
Because it is undisputed that he met the salary threshold, the initial question in this case is a factual determination of Plaintiff's primary duty while employed at the Gallery. See Maestas v. Day & Zimmerman, LLC , 664 F.3d 822, 826 (10th Cir. 2012) (when assessing whether an employee falls under the administrative exemption to FLSA's overtime protections, a court must first determine the employee's primary duty, and then determine whether that primary duty disqualifies the employee from FLSA's protections); see also Foxworthy v. Hiland Dairy Co. , 997 F.2d 670, 672 (10th Cir. 1993) (indicating that "the district court must first make findings as to certain factors, and then apply a legal standard"). A primary duty is "the principal, main, major or most important duty that the employee performs." 29 C.F.R. § 541.700(a). Factors to consider when determining an employee's primary duty include the relative importance of the exempt duties as compared with other types of duties; the amount of time spent performing exempt work; the employee's relative freedom from direct supervision; and the relationship between the employee's salary and the wages paid to other employees for the kind of nonexempt work performed by the employee. 29 C.F.R. § 541.700(a) ; see also Koehler v. Freightquote.com, Inc. , 2015 WL 4203962 (D. Kan. July 10, 2015) (unpublished). "Time spent performing each duty is a ‘useful guide’ in examining which duty is primary, but there is no requirement that an exempt executive employee spend more than half her time on managerial tasks." Maestas v. Day, supra , 664 F.3d at 827 (quoting 29 C.F.R. § 541.700(b) ).
In this case both parties’ evidence supports a determination that Plaintiff's primary duty at the Gallery was to run its day-to-day operations. Mr. Souki testified that he hired Plaintiff as the Gallery's General Manager on a short term basis, despite his lack of experience as a favor to a friend, in order to "try and turn him into a manager," "beef up his resume," and see if he could rise to the job. [Doc #130-8 pp. 33-39] Plaintiff testified that from when he was hired in January through August of 2017, he ran the Gallery with a friend of Ms. Souki's named Elly Habib. [Doc #103-12 pp. 38-39, 47] Both Mr. and Ms., Souki testified that Mr. Habib was an art consultant and salesperson at the Gallery, and Plaintiff was the Gallery Manager. [Doc #103-8 pg. 51][Doc #103-9 pg. 56] After Mr. Habib left the Gallery in August 2017, Plaintiff was generally the only employee at the Gallery and, as such, he testified that he was the sole decision maker on a day-to day basis, and was the "manager per se. " [Doc #103-12 pp. 45-48, 94-95, 103, 174-75] Plaintiff testified that since he was usually the only one at the Gallery, he was "running" the Gallery in that he was "managing it, taking responsibility of all [ ] the details." [Doc #103-12 pp. 47-48, 91-95] Plaintiff’ only reported to either or both Mr. and Ms. Souki, his business card indicated that he was General Manager, and he held himself out as such. [Docs #102-3 & #102-4][Doc #103-12 pp. 41-45, 94] In addition, although it is undisputed that Plaintiff did not actively oversee other employees, the Gallery employed salespersons during Plaintiff's term of employment that were paid hourly. [Doc #103-8 pp. 75-76][Doc #103-9 pg. 82]
Due to the small size of the operation, the evidence is that Plaintiff performed a wide variety of tasks at the Gallery; those operational duties range from unskilled tasks to managerial-level strategic determinations. For example, Ms. Souki testified that Plaintiff maintained/managed the Gallery in that he opened and closed the Gallery, took the jewelry out from the safe and put it in the display case, took care of customers and sold art, and tracked inventory; he also kept up the Gallery by dusting the art (although no other routine cleaning) and changing light bulbs. [Doc #103-9 pp. 47-48] Plaintiff testified that his "primary" duties included executive level tasks such as developing a strategic directive, being the "computer guy," and organizing art exhibits and openings. [Doc #103-12 pp. 86-91] Specifically, he testified that a "vast majority" of his day he spent:
Developing and implementing strategic objectives to ensure achievement and profitability goals – planning, organizing and executing exhibitions at openings, maintaining the Website, developing contacts and expanding visibility through social media marketing, negotiating with buyers and sellers, working and handling display arrangements, organizing advertising and publicity and being responsibility for the safekeeping of jewelry.
[Doc #103-12 pp. 90-91]
Plaintiff argues that this testimony cannot be used to assess his primary job duty because he was "baited" into agreeing that he spent most of his time at the Gallery performing the duties listed on his resume. In support of his claim that duties set forth on a resume cannot be used to support a plaintiff's actual job obligation, Plaintiff cites to Hinely v. Am. Family Mut. Ins. Co. , 275 F.Supp.3d 1229, 1239 FN.6 (D. Colo. 2016), which noted that statements from the plaintiffs’ resumes could not be deemed "undisputed facts relating to plaintiffs’ actual job duties." See also Knight v. Valley Country Club , 2015 WL 7014371 (D. Colo. Nov. 12, 2015) (unpublished)(indicating that "[a]t most, defendants have made the unremarkable observation that plaintiff emphasized certain of her duties in documents analogous to a professional resume, which is minimally relevant to whether plaintiff's ‘primary duty’ was managerial or related to [her employer's] general business operations.").
I first note that, contrary to Plaintiff's argument, the record does not reveal that he was in any way baited or tricked into his testimony. [Doc #103-12 pp. 87-88] Furthermore, while the duties set forth in a resume may have limited usefulness in determining a plaintiff's actual job duties, here the evidence is consistent that Plaintiff performed a wide variety of duties (from changing light bulbs to strategic planning) in the execution of his primary duty of the day-to-day operations of the Gallery. The more relevant testimony is that the higher-level duties listed on his resume – such as working extensively with artists to handle display arrangements – collectively made up the "vast majority," or over 75%, of his typical day. [Doc #103-12 pp. 89-91] While he did not have the authority to make owner-level decisions – such as choosing and pricing the art to be sold at the Gallery, or whether to sell a piece for less than a predetermined discount [Doc #103-9 pp. 21-22, 61][Doc #103-8 pg. 29][Doc #103-12 pp.180-183] – the evidence is that his primary duty at the Gallery was to run its day-to-day operations. 29 C.F.R. 541.700(a) (indicating that the "[d]etermination of an employee's primary duty must be based on all the facts in a particular case, with the major emphasis on the character of the employee's job as a whole"); see also Maestas v. Day, supra , 664 F.3d at 829 (noting that the Court's factual determination of a plaintiff's primary duty takes into consideration "the amount of time devoted to each task, the relative importance of each task, the degree of freedom from direct supervision, and the pay relative to subordinates.")
When assessing whether Plaintiff qualified for the FLSA administrative exemption, the next determination is whether his primary duty constituted "the performance of work directly related to the management or general business operations of the employer or the employer's customers." 29 C.F.R. § 541.201(a)(2). Performing management or business operations examines whether the employee performs work directly related to assisting with the running or servicing of the business, as distinguished from manufacturing or selling a product. Baldwin v. Key Equip. Fin., Inc. , 2006 WL 2016843 (D. Colo. July 17, 2006) (unpublished)(citing 29 C.F.R. § 541.201(a) ). The Code of Federal Regulations provides examples of typical administrative duties including: accounting; budgeting; auditing; quality control; marketing; research; personnel management; public relations; computer network, internet and database administration; and legal and regulatory compliance. See 29 C.F.R. § 541.201(b) ; see also Bernard v. Grp. Pub., Inc. , 970 F. Supp.2d 1206, 1224 (D. Colo. 2013) (finding that even if the plaintiff's job included some work that would not qualify as non-manual work directly related to the management or business operations of the defendant, his primary duties were comprised of non-manual tasks directly related to assisting with the running or servicing of the defendant's business). In this case Plaintiff's work "was not akin to production or sale of a commodity; rather, [his] work was directly related to the general business operations of [Defendant]." Hamby v. Associated Centers for Therapy , 230 F. App'x 772, 784 (10th Cir. 2007) (unpublished); see also Bernard v. Grp. Pub., supra.
My final determination is whether Plaintiff's "primary duty includes the exercise of discretion and independent judgment with respect to matters of significance." 29 C.F.R. § 541.201(a)(3). "Discretion and independent judgment" requires a "comparison and the evaluation of possible courses of conduct, and acting or making a decision after the various possibilities have been considered." 29 C.F.R. § 541.202(a). "Matters of significance" refers to the level of importance or consequence of the work performed in light of all the facts and circumstances. Factors to consider in evaluating matters of significance include: "whether the employee has authority to formulate, affect, interpret, or implement management policies or operating practices; whether the employee carries out major assignments in conducting the operations of the business; whether the employee performs work that affects business operations to a substantial degree, even if the employee's assignments are related to operation of a particular segment of the business; whether the employee has authority to commit the employer in matters that have significant financial impact; whether the employee has authority to waive or deviate from established policies and procedures without prior approval; whether the employee has authority to negotiate and bind the company on significant matters; whether the employee provides consultation or expert advice to management; whether the employee is involved in planning long-or short-term business objectives; whether the employee investigates and resolves matters of significance on behalf of management; and whether the employee represents the company in handling complaints, arbitrating disputes or resolving grievances. 29 C.F.R. § 541.202(b).
Plaintiff asserts that none of his duties at the Gallery included independent judgment on any matter of significance. In so arguing, he notes that Ms. Souki purchased and negotiated for the art and jewelry sold in the Gallery. While he had standing authority to discount a price up to a set percentage, anything beyond that would require authorization from Ms. Souki [Doc #103-12 pp. 180-183], and he needed final approval for the placement of advertising. [Doc #103-12 pp. 95-96] In addition, Plaintiff notes that Ms. Souki testified that his job "was not difficult" and that it was "not a very complicated job." [Doc #103-9, pp. 44, 48] However, as discussed above, Plaintiff testified at his deposition that the majority of his time at the Gallery he spent: (1) developing and implementing strategic profitability objectives; (2) working to achieve client satisfaction; (3) planning, organizing, and executing exhibits and artist openings; (4) maintaining and updating the website, administering the storage database, and otherwise serving as the "computer guy;" (5) developing the Gallery's visibility through social media marketing and traditional media outlets; (6) negotiating with buyers and sellers for the sale of artwork; (7) working with artists to handle display arrangements; and (8) being solely responsible for the safekeeping of jewelry. [Doc #103-12 pp. 87-91] In addition, there is documentary evidence that Plaintiff executed some contracts on behalf of the Gallery (such as an artist's consignment agreement, a service agreement with Comcast), engaged in negotiations with potential buyers, and arranges for media coverage. [Docs #102-12, #102-8, #102-9 & #102-10] Based on the undisputed evidence, particularly Plaintiff's testimony, it is clear that while Plaintiff clearly did not have unfettered discretion as to all the decisions related to the running of the Gallery, he did have discretionary authority to make independent decisions related to the management of its day-to-day operations. See 29 C.F.R. § 541.202(b) (factors to consider when evaluating matters of significance include whether the employee "performs work that affects business operations to a substantial degree;" and "has authority to negotiate and bind the company on significant matters"); Bernard v. Grp. Pub., supra , 970 F. Supp.2d at 1226 (noting that oversight by a supervisor does not detract from the discretion exercised by a plaintiff)(citing 29 C.F.R. § 541.202(c) ).
The employer bears the burden to prove that a plaintiff falls within the exemption from the FLSA overtime requirement. Maestas v. Day, supra, 664 F.3d at 826. However, the employer's burden is somewhat relaxed in that courts are to give the exemption provisions a "fair (rather than a ‘narrow’) interpretation." Encino Motorcars, LLC v. Navarro , ––– U.S. ––––, 138 S. Ct. 1134, 1142, 200 L.Ed.2d 433 (2018) ; see also Jordan v. Maxim Healthcare Servs., Inc. , 950 F.3d 724, 733 (10th Cir. 2020) (noting that the ruling in Encino v. Navarro, supra "rejected a hitherto-employed principle by federal courts that FLSA exemptions must be narrowly interpreted"). Here, under a fair interpretation of the bona fide administrative exemption, the undisputed facts are that Plaintiff's primary duty was the day-to-day operations of the Gallery and that such duty was "office or non-manual work directly related to the management or general business operations of the employer" that "include[d] the exercise of discretion and independent judgment with respect to matters of significance." 29 C.F.R. § 541.200. As a result, Defendants have carried their burden and are entitled to summary judgment in their favor on Plaintiff's wage claim as Plaintiff was not entitled to overtime pay under a fair interpretation of the administrative exemption. See generally Stricker v. E. Off Rd. Equip., Inc., 935 F.Supp. 650, 657 (D. Md. 1996) (ruling that an employee is covered by the administrative exemption when he is "responsible for ‘day-to-day operation’ of the store").
Additionally, Plaintiff concedes that his wage claims for failure to keep proper records do not constitute separate causes of action. [Doc #109 pg. 8] See generally Elwell v. Univ. Hosp. Home Care Servs. , 276 F.3d 832, 843 (6th Cir. 2002) (noting that enforcement of FLSA recordkeeping provisions "is vested exclusively in the Secretary of Labor"); see also Bracamontes v. Bimbo Bakeries U.S.A. Inc. , 2016 WL 5791202 (D. Colo. Sept. 30, 2016) (unpublished)(same).
Finally, to the extent that Plaintiff raises the same overtime violations pursuant to the Colorado Wage Claim Act and the Colorado Minimum Wage Act, such state law claims likewise fail because a determination that he is exempt under the FLSA, also results in his exempt status under Colorado state law. Courts are to read exemptions under the FLSA and Colorado law "harmoniously" because many of the Colorado Wage Order provisions are patterned largely after the FLSA. Deherrera v. Decker Truck Line, Inc. , 820 F.3d 1147, 1161 (10th Cir. 2016) (citing 7 C.C.R. § 1103-1:5, which provides that administrative employees are exempt from all provisions of the Colorado Minimum Wage Order No. 32); see also Ortega v. Denver Inst. L.L.C. , 2015 WL 4576976 (D. Colo. July 30, 2015) (unpublished)(noting that if a party's "FLSA claim is not actionable, the State claims fail as well").
B. Invasion of Privacy
Plaintiff also contends that he is entitled to summary judgment on his invasion of privacy claim because the undisputed facts are that Defendants used his likeness for commercial purposes without his knowledge or consent. Defendants argue, in response, that Plaintiff's claim for invasion of privacy is not cognizable because it is untimely.
On or about January 10, 2016, his first day of employment with the Gallery, Plaintiff agreed to have his picture taken at a photographer's studio. [Doc #103-12 pp. 130-31] Plaintiff's picture was then used by the Gallery on a publicity flyer to promote Gay Ski Week. [Doc #103-4] Plaintiff testified that he was aware of the use of his photo on the flyer the next day, January 11, 2016, although he asked Ms. Souki to not use it in late January or the beginning of February. [Doc #103-12 pg. 132] Specifically, he testified as follows:
Q: When this photo was taken, did you know it was going end up on some – this – this image that is depicted on this exhibit?
A: I had no idea, no.
Q: You – you claim that this photo ... was distributed very widely. This is the only copy of this photo I've ever seen.
A: – it's because I told [Ms. Souki] to take it down.
Q: Let me stop you. When ... did you tell her to take it down? I mean, this went up on January 10th or 11th?
A: Yeah. I believe either beginning February or late January.
...
Q: So this happened in January of 2016. You were aware of it –
A: Yes.
Q: – the next day at least, weren't you?
A: Of – of this flier being made?
Q: Yes.
A: Yeah, yeah. I was – I was – I was aware of it. I was, kind of, in shock. It was my second day working there. I wanted – I didn't want to say anything, as I had just started working there. I wanted to keep my job, but, yeah, I was aware.
Q: So that was, you know, Jan – the second day you were working your way over, January 11th, maybe 12th of 2016?
A. Yes.
[Doc #103-12 pp. 131-134]
When Plaintiff asked that his picture not be used, the flyers were destroyed, and the image of the flyer was removed from online posts. [Doc #103-12 pp. 132-34, 145][Doc #103-9 pp. 118-19]
Colorado's two-year statute of limitations applies to Plaintiff's invasion of privacy claim. See C.R.S. § 13-80-102(1) (providing that the general limitation applicable to actions based in tort "must be commenced within two years after the cause of action accrues, and not thereafter"). To the extent that Plaintiff asserts, without citing any authority, that the general two-state of limitations does not apply, I disagree. See Colo. Jury Instr., Civil 28:12 Notes of Use (noting that while there are no Colorado decisions concerning which statute of limitations applies in privacy actions, the general two-year tort statute of limitation "probably applies" as an affirmative defense to invasion of privacy torts for "use of the plaintiff's name or likeness").
Additionally, I reject Plaintiff's contention that Defendants cannot assert a statute of limitations defense because they failed to raise such a defense in their answer. As their Second Affirmative Defense, Defendants assert that "Plaintiff's claims are barred, in whole or in part, by the applicable statutes of limitation under the FLSA and his claims are time-barred." [Docs #8 & #22] While not well pled, in that an applicable statute of limitations could be read to be specifically limited to those "under the FLSA," the language also indicates applicable "statute s " of limitations to Plaintiff "claim s. " In addition, it specifies that the claims are barred "in whole or in part." As such, the language in Defendants Second Affirmative Defense is sufficient to raise an affirmative defense to Plaintiff's invasion of privacy claim based on Plaintiff's failure to file it within the statute of limitations time period applicable to that claim. See generally Zotos v. Lindbergh Sch. Dist., 121 F.3d 356, 361 (8th Cir. 1997) (rejecting the argument that the defendant failed to plead a statute of limitation defense with sufficient specificity because "while a limitations defense must be asserted in a responsive pleading, it need not be articulated with any rigorous degree of specificity, and is sufficiently raised for purposes of Rule 8 by its bare assertion")(quoting Daingerfield Island Protective Soc'y v. Babbitt, 40 F.3d 442, 445 (D.C. Cir. 1994) ).
At issue, then, is when the invasion of privacy claim began to run on the two-year statute of limitations. A civil claim accrues, for purposes of the commencement of a statute of limitations, "when facts that would support a cause of action are or should be apparent." Fratus v. DeLand , 49 F.3d 673, 675 (10th Cir. 1995) ; see also Colo. Rev. Stat. § 13-80-108(8) (a cause of action accrues on the date when "the injury, loss, damage, or conduct giving rise to the cause of action is discovered or should have been discovered by the exercise of reasonable diligence.")
Plaintiff testified that he learned about the intended promotional use of his photograph on January 11 or 12, 2016, when he saw it on the flyer. [Doc #103-12 pp. 130-34] As such, the latest Plaintiff knew the basis of his claim was January 12, 2016, and the statute of limitations on his invasion of privacy claim accrued and began to run on that date. Plaintiff's assertion that the date of accrual is at the time of the last dissemination of the photograph/flyer – either "a few weeks later" for the flyer [Doc #103-12 pp. 135, 145], or a "little while later" for online/social media posts [Doc #103-12 pg. 132][Doc #103-9 pg. 118], or October of 2017 the last time Plaintiff found the flyer on the internet (via Google search) [Doc #102-11] – such argument is misplaced. The law is clear that the date of accrual for the commencement of a statute of limitations is the date the Plaintiff knew of the injury. C.R.S. § 13-80-108(8)(a).
Accordingly, Plaintiff's invasion of privacy claim accrued on the date he knew of the injury, which he testified was on January 11 or 12 of 2016. Because his lawsuit raising this claim was not filed until May 11, 2018, four months out of time, his invasion of privacy claim must be dismissed as untimely. See Trigg v. State Farm Mut. Auto. Ins. Co. , 129 P.3d 1099, 1101 (Colo. App. 2005) (indicating that "if undisputed facts demonstrate that the plaintiff had the requisite information as of a particular date, then the issue of whether the statute of limitations bars a particular claim may be decided as a matter of law.")
C. FSLA Retaliation Claim
Finally, I address the parties’ arguments that they are each entitled to summary judgment in their favor on Plaintiff's claim that the Gallery's act of filing counterclaims against him in this case constituted retaliation in violation of the FLSA and the Colorado Wage Claim Act.
Plaintiff's retaliation claims, raised in his amended complaint, allege that the Gallery retaliated against him for bringing his wage claims by filing counterclaims that are "false, without legal or factual support, and designed to harass, annoy, vex, or intimidate the Plaintiff, and/or to attempt to extract an ‘offset’ to damages owed to him." [Doc #21 ¶97] In addition, Plaintiff asserts that this court lacks subject matter jurisdiction over the counterclaims, as well as "personal jurisdiction over him related to Defendants’ Colorado state law based claims." [Doc #21 ¶98] Plaintiff claims retaliation in violation of the FLSA under 29 U.S.C. § 215(a)(3), which provides that it is unlawful to "discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter," and the Colorado Wage Claim Act pursuant to Colo. Rev. Stat. § 8-4-120 (providing generally the same). Retaliation claims under the FLSA are analyzed under the burden-shifting framework provided in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Pacheco v. Whiting Farms, Inc. , 365 F.3d 1199, 1206 (10th Cir. 2004) (citing Richmond v. ONEOK, Inc. , 120 F.3d 205, 208 (10th Cir. 1997) ). Therefore, an employee must first establish a prima facie case of retaliation by demonstrating: (1) he engaged in protected activity under the FLSA; (2) he suffered an adverse employment action contemporaneous with or subsequent to the protected activity; and (3) a causal connection between the protected activity and the adverse employment action. Pacheco v. Whiting Farms, supra , 365 F.3d at 1206 (citing Conner v. Schnuck Markets, Inc. , 121 F.3d 1390, 1394 (10th Cir. 1997) ).
Defendants contend, and I agree, that Plaintiff cannot make out a prima facie case of retaliation because the Gallery's act of filing counterclaims in this litigation does not constitute an adverse employment action (the second requirement). I am persuaded by the reasoning employed by Judge Blackburn in Robinson v. Dean Foods Co. , 2009 WL 2382764 (D. Colo. July 30, 2009) (unpublished), which held that the employer's counterclaim, in a Title VII case, cannot constitute an adverse action in that such filing could not "dissuade the employee from making a charge of discrimination, by filing a lawsuit, because the charge necessarily must be made before the employer can file a counterclaim." Id. (citing Burlington N. & Santa Fe Ry. Co. v. White , 548 U.S. 53, 57, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) ). Judge Blackburn further noted, however, that "[i]t is conceivable that a frivolous, baseless, or otherwise abusive counterclaim might form the basis for a retaliation claim." Id. ; see also Timmerman v. U.S. Bank, N.A. , 483 F.3d 1106, 1123 (10th Cir. 2007) (indicating that "it is certainly an interesting question whether the filing of counterclaims in response to discrimination claims brought by a former employee constitutes an adverse employment action" but not reaching the question in that case).
The counterclaims filed in this case are not frivolous, baseless or otherwise abusive. I acknowledge that Mr. Souki testified that he was willing to overlook Plaintiff's "dealing directly with the artist that we represent [by] taking the painting he was not entitled to" at the time of his termination, but he was no longer willing to do so because Plaintiff was now suing him, and that he wanted "nothing" from the counterclaims. [Doc #103-8 pp. 72-73] Such testimony does not support the argument, however, that the counterclaims are so frivolous or abusive as to be deemed an adverse employment action that would have dissuaded Plaintiff from engaging in the protected activity of filing of this lawsuit. See Robinson v. Dean Foods, supra (finding that the employer's counterclaims were not "so baseless as to rise to the level of legally-actionable retaliation"); Sparks v. Duncan Race Cars, Inc. , 2014 WL 7403382 (D. Colo. Dec. 29, 2014) (unpublished).
And, as a result, I conclude that Plaintiff is unable to establish a prima facie case of retaliation under the FLSA, as he is unable to show that the Gallery's counterclaims, which were filed in response to his wage claim lawsuit and have "an arguable basis cognizable in law," constitute an adverse employment action. Robinson v. Dean Foods, supra (finding that the employer's counterclaim for abuse of process did not support a finding of retaliation because it had "an arguable basis cognizable in law").
IV. THE GALLEY'S COUNTERCLAIMS
Plaintiff also seeks summary judgment in his favor on the Gallery's counterclaims against him. The Gallery alleges that it entered into a consignment agreement with an artist, and that Plaintiff (who was aware of the agreement) initiated an unauthorized transaction with the artist for the direct sale of a commissioned painting. When the unauthorized transaction was discovered, Mr. Souki terminated Plaintiff from his position at the Gallery. The Gallery filed counterclaims against Plaintiff, based on Colorado common law, for: 1) breach of the duty of loyalty or fiduciary duty; 2) intentional interference with a contractual relationship; 3) unjust enrichment; and 4) forfeiture of compensation or disgorgement. [Docs #8 & #22]
In light of my ruling on summary judgment in favor of Defendants on Plaintiff's federal claims under the FLSA, I now exercise my discretion to decline supplemental jurisdiction pursuant to 28 U.S.C. § 1367(c)(3) over the Gallery's state law counterclaims. See Dixon v. Sullivan , 28 F. App'x 810, 813 (10th Cir. 2001) (unpublished)(ruling that a district court has the discretion to decline to exercise supplemental jurisdiction over state law claims after it had dismissed the plaintiff's federal claims). "When all federal claims have been dismissed, the court may, and usually should, decline to exercise jurisdiction over any remaining state claims." Koch v. City of Del City , 660 F.3d 1228, 1248 (10th Cir. 2011) (quoting Smith v. City of Enid ex rel. Enid City Comm'n , 149 F.3d 1151, 1156 (10th Cir. 1998) ).
ACCORDINGLY, I GRANT Defendants’ Motion for Summary Judgment [Doc #102 ] and I DENY Plaintiff's Motion for Summary Judgment. [Doc #103 ] As such, I DISMISS WITH PREJUDICE Plaintiff's claims raised in this lawsuit, as a matter of law, and I DISMISS WITHOUT PREJUDICE the counterclaims raised by Defendant ChaCha in Art LLC, d/b/a Cha Cha Gallery. This case is, therefore, DISMISSED. Each party to pay their own fees and costs.