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Mariche v. Phoenix Oil, LLC

United States District Court, D. Arizona

June 3, 2014

Adran Morga Mariche, Plaintiff,
Phoenix Oil, LLC; William J. Donovan, III; Kristen B. Donovan; James J. Gaffney, Defendants.


NEIL V. WAKE, District Judge.

Before the Court is Plaintiff Adran Mariche's Motion for Partial Summary Judgment (Doc. 29), and Defendants' Cross-Motion for Summary Judgment (Doc. 33). Also before the Court is Defendants' Motion for Summary Judgment re State Law Claim (Doc. 38). For the following reasons, summary judgment will be denied on all counts, except that Defendants' motion to dismiss Kristen Donovan will be granted.


Plaintiff Adran Mariche was employed by Defendant Phoenix Oil at a Phoenix-area convenience store and gas station. For the first two-and-a-half years, Mariche was an hourly cashier making $8.50 and then $8.75 per hour. [PSOF ¶ 2]. He was promoted to a salaried position on August 20, 2010 and began receiving a weekly salary of $453.85, $480.77, and then $500.00 over the next three years. [PSOF ¶¶ 2-3].

Phoenix Oil and Mariche disagree on the material facts surrounding the terms and conditions of his employment. Once salaried, Phoenix Oil alleges Mariche took on a managerial role while Mariche asserts he continued to perform the same duties as other hourly workers. As part of his salaried position, Mariche claims he was generally scheduled to work from 10:00 p.m. to 8:00 a.m. on weekdays but often had to work an additional two hours after his official shift ended. [PSOF ¶ 5]. Phoenix Oil denies that Mariche was ever required to stay later than his assigned shift. [DSOF ¶ 31].

During his shifts, Mariche performed some managerial tasks. These included receiving shipments, directing the other night shift employee(s), completing end of shift paper work, and closing out the cash registers. [PSOF ¶¶ 10, 17, 23]. Mariche also performed tasks consistent with a general, hourly employee such as running the cash register, restocking shelves, cleaning the store, and overseeing the hot food items. [PSOF ¶¶ 10-20]. He wore the same shirt as all the other employees and his name badge bore no managerial title. [PSOF ¶¶ 31-35]. Mariche claims the store's day manager wore a different color shirt that identified him as a manager, but Phoenix Oil states that, per company policy, all employees wore the same uniform and no special designation was given to managers. [DSOF ¶ 73].

Mariche also asserts that he was rarely responsible for supervising more than one employee, except in the early mornings when a second employee would arrive around 6:00 or 7:00a.m. [PSOF ¶¶ 8-10]. Phoenix Oil contends that two or three employees were on the clock during Mariche's night shift and that Mariche supervised at least 96 employee work hours each week. [DSOF ¶¶ 19-21]. When Mariche was present at the store, there was only one other employee with him for the majority of his shift. Half of the supervisory hours attributed to Mariche by Phoenix Oil are from nights when Mariche was not scheduled to work in the store but was still considered in charge of the night shift by Phoenix Oil. Mariche disputes that he was managing employees on days when he was not scheduled to work.

Mariche now brings this Partial Motion for Summary Judgment, contending Phoenix Oil misclassified him as an exempt employee under the Fair Labor Standards Act ("FLSA"). (Doc. 29). Defendant Phoenix Oil cross-moves for summary judgment, arguing Mariche was properly characterized as an exempt employee under the FLSA. (Doc. 33). Phoenix Oil also moves for summary judgment on Mariche's state law claim (Doc. 38), which asserts liability under Arizona law for failure to pay overtime wages. See A.R.S. § 23-355.


Summary judgment is appropriate when the moving party carries its burden of demonstrating that there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A material fact is one that might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual issue is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.

Once the moving party has carried its burden under Rule 56, the party opposing summary judgment must "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256. The facts are "viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as to those facts." Scott v. Harris, 550 U.S. 372, 380 (2007). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).


When applying for a job with Phoenix Oil, Mariche presented a social security number and driver's license bearing the name Nicholas Vlisides. [DSOF 7]. The Nicholas Vlisides associated with that social security number, however, is an insurance agent residing in Texas. [DSOF 10]. Phoenix Oil states that it uses E-Verify [DSOF ¶ 9], an online program run by the federal government and used by employers to verify that a potential employee is eligible to work in the United States, but Phoenix Oil does not claim that it ran Mariche's information through the E-Verify system or that the system confirmed Mariche's eligibility to work in the United States. When asked whether he used a false identity to obtain employment, Mariche asserted his Fifth Amendment right against self-incrimination. [DSOF 51].

When a plaintiff invokes his Fifth Amendment right in response to probative evidence offered against him in a civil case, an adverse inference is permitted. See Baxter v. Palmigiano, 425 U.S. 308, 318 (1976) (noting that "the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them"). Mariche's refusal to discuss the use of Mr. Vlisides's social security number permits an inference that Mariche is an unlawful resident of the United States who fraudulently obtained employment through the use of another person's identity. Phoenix Oil ...

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