Filed: Jul. 26, 2011
Latest Update: Feb. 22, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 10-15326 ELEVENTH CIRCUIT JULY 26, 2011 Non-Argument Calendar JOHN LEY _ CLERK D. C. Docket No. 1:09-cv-23195-MGC MARIA RODRIGUEZ, Plaintiff-Appellant, versus JONES BOAT YARD, INC., a Florida Corporation, VICTOR BARED, individually, Defendants-Appellees. _ Appeal from the United States District Court for the Southern District of Florida _ (July 26, 2011) Before TJOFLAT, CARNES and BL
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 10-15326 ELEVENTH CIRCUIT JULY 26, 2011 Non-Argument Calendar JOHN LEY _ CLERK D. C. Docket No. 1:09-cv-23195-MGC MARIA RODRIGUEZ, Plaintiff-Appellant, versus JONES BOAT YARD, INC., a Florida Corporation, VICTOR BARED, individually, Defendants-Appellees. _ Appeal from the United States District Court for the Southern District of Florida _ (July 26, 2011) Before TJOFLAT, CARNES and BLA..
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-15326 ELEVENTH CIRCUIT
JULY 26, 2011
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 1:09-cv-23195-MGC
MARIA RODRIGUEZ,
Plaintiff-Appellant,
versus
JONES BOAT YARD, INC.,
a Florida Corporation,
VICTOR BARED,
individually,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 26, 2011)
Before TJOFLAT, CARNES and BLACK, Circuit Judges.
PER CURIAM:
Maria Rodriguez appeals the district court’s order granting summary
judgment in favor of Jones Boat Yard, Inc. (Jones) and its President, Victor Bared
(Victor), (collectively, the Defendants) in her Fair Labor Standards Act (FLSA)
action against the Defendants. Rodriguez raises several issues on appeal, which
we address in turn. After reviewing the record and briefs,1 we affirm the district
court.
I. BACKGROUND
On May 1, 2000, Victor’s elderly mother, Ofelia Bared (Ofelia), hired
Rodriguez, a Nicaraguan national, as a live-in caregiver. Rodriguez’s duties
included preparing meals, performing hygienic and medical care, running errands,
cleaning Ophelia’ apartment, arranging transportation, taking care of Ophelia’s
finances, and general companionship. Rodriguez worked between 12 and 17
hours a day, 7 days a week, caring for Ophelia. In return for her services, Ofelia
paid Rodriguez $700-$1,100 a month and allowed Rodriguez to live in her
apartment. In May 2007, Victor placed Rodriguez on Jones’s payroll and included
1
“We review a district court’s grant of summary judgment de novo.” Walters v. Am.
Coach Lines of Miami, Inc., 575 F.3d 1221, 1226 (11th Cir. 2009). “In conducting our review,
we construe all facts and draw all reasonable inferences in favor of the non-moving party.”
Id.
2
her in Jones’s 401(k) program.2 Despite receiving regular payroll checks from
Jones, Rodriguez did not perform additional work for Jones or Victor.
In August 2009, Rodriguez was fired and forced to vacate Ofelia’s
apartment.3 Rodriguez initiated this action on October 22, 2009, and subsequently
amended her complaint on April 15, 2010, alleging FLSA wage and hour
violations. On April 23, 2010, Defendants filed their motion for summary
judgment on all claims, arguing that: (1) Rodriguez was exempt from the FLSA
minimum wage and maximum hour provisions under the “companionship services
exemption,” 29 U.S.C. § 213(a)(15); and (2) as a matter of “economic reality” the
Defendants were not Rodriguez’s employer.
This matter was referred to a magistrate, and on July 26, 2010, the court
issued its Report and Recommendation (R&R) finding in favor of the Defendants
on both grounds. In making its findings, the court did not consider a post-
deposition affidavit submitted by Rodriguez because it directly conflicted with her
2
The parties dispute why Rodriguez was placed on Jones’s payroll. Victor claims it was
done at Rodriguez’s insistence to help her become a naturalized citizen. Rodriguez contends she
was paid by Jones to “skirt” Social Security Administration regulations. Regardless of the
reason, it is undisputed that between May 2007, and August 2009, Rodriguez was on Jones’s
payroll.
3
Rodriguez claims she was fired because the Bared family did not want to pay her a
higher wage upon completion of nursing school.
3
prior deposition testimony. On October 25, 2010, the district court entered a final
order adopting the R&R and granting summary judgment in favor of the
Defendants. Rodriguez now appeals.
II. SHAM AFFIDAVIT
Rodriguez first asserts the district court erred in applying the sham affidavit
rule in striking her post-deposition affidavit4 because the affidavit was not directly
contrary to her deposition testimony. She contends the affidavit creates an issue of
material fact and the court should have considered it when making its summary
judgment determination.5
Under the sham affidavit rule, “[a]n affidavit may be stricken as a sham
‘when a party has given clear answers to unambiguous questions which negate the
existence of any genuine issue of material fact . . . [and that party attempts]
thereafter [to] create such an issue with an affidavit that merely contradicts,
without explanation, previously given clear testimony.’” Tippens v. Celotex
Corp., 805 F.2d 949, 954 (11th Cir. 1986) (citations omitted). The court making
this determination must be careful to distinguish “between discrepancies which
4
The affidavit was filed on May 19, 2010, approximately two months after Rodriguez’s
deposition transcript was filed.
5
We review a district court’s ruling on admissibility of evidence for abuse of discretion.
Corwin v. Walt Disney Co., 475 F.3d 1239, 1249 (11th Cir. 2007).
4
create transparent shams and discrepancies which create an issue of credibility or
go to the weight of the evidence.” Id. at 953.
The district court did not abuse its discretion in striking Rodriguez’s
affidavit. During Rodriguez’s deposition, defense counsel asked her two times
whether “almost 100%” of her time was devoted to caring for Ofelia. Rodriguez
responded affirmatively both times. We disagree with Rodriguez’s argument that
the question was ambiguous, and there is nothing in the record to indicate
Rodriguez did not understand what was being asked by defense counsel.
Moreover, Rodriguez did not provide an explanation why approximately two
months after her deposition, she submitted an affidavit stating she spent 20-25% of
her time doing general household work and that “almost 100%” of her time
actually “meant anywhere between 70 to 75% of the time.” Even assuming
Ofelia’s family members frequently visited the apartment, Rodriguez testified to
spending all of her time caring for Ofelia. We will not allow a party to create an
issue of material fact by providing supplemental testimony that contradicts prior
answers to unambiguous questions. See Tippens, 805 F.2d at 954.6
6
Rodriguez also claims the court improperly weighed credibility when it stated “ . . . I
think that words were put into [Rodriguez’s] mouth by her attorney and that concerns me.” The
court was not weighing credibility here, but rather expressing concern with the fact that
Rodriguez’s counsel submitted an affidavit contradicting his client’s prior deposition testimony
without providing an adequate explanation.
5
III. “COMPANIONSHIP SERVICES” EXEMPTION
Rodriguez next contends she does not meet the FLSA “companionship
services” exemption because 20% or more of her work consisted of general
household duties. Pursuant to this exemption, “any employee employed in
domestic service employment to provide companionship services for individuals
who (because of age or infirmity) are unable to care for themselves” is exempt
from the minimum wage and maximum hour requirements found in 29 U.S.C.
§§ 206 and 207, provided any incidental general household work performed
“does not exceed 20 percent of the total weekly hours worked.” 29 U.S.C.
§ 213(a)(15); 29 C.F.R. § 552.6. This exemption extends to workers paid by third
parties. Buckner v. Fla. Habilitation Network, Inc., 489 F.3d 1151, 1153 (11th
Cir. 2007). Rodriguez’s argument is without merit because the admissible
evidence illustrates nearly all of her work related to the personal care of Ofelia.
IV. EMPLOYER STATUS
Lastly, Rodriguez contends the district court erred when it determined the
Defendants were not her “employers” under the FLSA.7 We look at the
“economic reality of the relationship between the parties” to determine employer
7
“A determination of employment status under the FLSA . . . is a question of law subject
to our de novo review.” Antenor v. D&S Farms, 88 F.3d 925, 929 (11th Cir. 1996).
6
status. Villarreal v. Woodham, 113 F.3d 202, 205 (11th Cir. 1997). This
determination includes inquiries into: “whether the alleged employer (1) had the
power to hire and fire the employee[], (2) supervised and controlled [the
employee’s] work schedule[] or condition[] of employment, (3) determined the
rate and method of payment, and (4) maintained employment records.”
Id.
Despite the fact that Victor placed Rodriguez on Jones’s payroll and
entered her into Jones’s 401(k) plan, Rodriguez fails to present any additional
material evidence tending to show the Defendants were her employer. It is
undisputed that Rodriguez did not perform any work for Victor or Jones during
the period she was employed. Furthermore, Rodriguez’s claim that she was hired
and fired by the Defendants is completely belied by the record. Accordingly,
Rodriguez’s argument is without merit and we affirm the district court’s grant of
summary judgment.
AFFIRMED.
7
