Filed: Jul. 08, 2013
Latest Update: Feb. 12, 2020
Summary: Case: 12-15324 Date Filed: 07/08/2013 Page: 1 of 8 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 12-15324 Non-Argument Calendar _ D.C. Docket No. 1:09-cv-22185-WMH MARIUS ARILUS, Plaintiff - Appellant, DONAUS JEAN FRANCOIS, OLIBERTEAU COLIN, and other similarly situated individuals Plaintiffs, versus JOSEPH A. DIEMMANUELE, JR., INC., A Florida Corporation, JOSEPH A. DIEMMANUELE, JR., Individually, GARDENS OF EDEN NURSERY, LLC, Defendants - Appellees. Cas
Summary: Case: 12-15324 Date Filed: 07/08/2013 Page: 1 of 8 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 12-15324 Non-Argument Calendar _ D.C. Docket No. 1:09-cv-22185-WMH MARIUS ARILUS, Plaintiff - Appellant, DONAUS JEAN FRANCOIS, OLIBERTEAU COLIN, and other similarly situated individuals Plaintiffs, versus JOSEPH A. DIEMMANUELE, JR., INC., A Florida Corporation, JOSEPH A. DIEMMANUELE, JR., Individually, GARDENS OF EDEN NURSERY, LLC, Defendants - Appellees. Case..
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Case: 12-15324 Date Filed: 07/08/2013 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-15324
Non-Argument Calendar
________________________
D.C. Docket No. 1:09-cv-22185-WMH
MARIUS ARILUS,
Plaintiff - Appellant,
DONAUS JEAN FRANCOIS,
OLIBERTEAU COLIN,
and other similarly situated individuals
Plaintiffs,
versus
JOSEPH A. DIEMMANUELE, JR., INC.,
A Florida Corporation,
JOSEPH A. DIEMMANUELE, JR.,
Individually,
GARDENS OF EDEN NURSERY, LLC,
Defendants - Appellees.
Case: 12-15324 Date Filed: 07/08/2013 Page: 2 of 8
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(July 8, 2013)
Before CARNES, WILSON, and ANDERSON, Circuit Judges.
PER CURIAM:
Marius Arilus appeals the district court’s grant of summary judgment in
favor of his employers on his claim under the Fair Labor Standards Act. He
contends that there are genuine issues of material fact about whether his
employment was covered by the Act.
I.
Before his termination in October 2008, Arilus worked for Joseph A.
DiEmmanuele, Jr. (JAD) Inc., a lawn maintenance service, and Gardens of Eden
Nursery, LLC, a tree nursery. Both companies are owned by Joseph A.
DiEmmanuele, Jr. On July 23, 2009, Arilus, along with two other plaintiffs who
have since settled their claims, filed an action seeking relief under the Fair Labor
Standards Act for unpaid overtime wages.
After discovery the employers filed a motion for summary judgment, which
the district court granted. The court assumed, without deciding, that JAD Inc. and
Gardens of Eden Nursery were joint employers. The court then concluded that the
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employers did not have to comply with the Fair Labor Standards Act’s
requirements because their combined annual sales were less than $500,000 during
the relevant years.
II.
We review de novo a district court’s grant of summary judgment, viewing
all evidence and drawing all reasonable inferences in favor of the nonmoving
party. Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1314
(11th Cir. 2011). Summary judgment is proper only when there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.
Id.
The Fair Labor Standards Act requires employers to pay their employees
time and a half for all the work they do over forty hours a week. See 29 U.S.C. §
207(a)(1). “Generally, employees may only recover up to two years of back pay
under the FLSA’s statute of limitations.” Rodriguez v. Farm Stores Grocery, Inc.,
518 F.3d 1259, 1262 (11th Cir. 2008) (citing 29 U.S.C. § 255(a)). Arilus filed this
lawsuit on July 23, 2009, and seeks unpaid overtime wages from July 23, 2007
until October 2008, the date on which he was terminated.
To be entitled to the Act’s protections, however, Arilus must first show that
he is covered by the Act. Josendis, 662 F.3d at 1298. There are two types of
coverage: enterprise and individual.
Id. To establish enterprise coverage, an
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employee must show that his employer (1) is engaged in interstate commerce, and
(2) “is an enterprise whose annual gross volume of sales made or business done is
not less than $500,000.” 29 U.S.C. § 203(s)(1)(A)(i)–(ii). 1
To decide whether JAD Inc. and Gardens of Eden Nursery had a combined
“gross volume of sales made or business done” that was less than $500,000, the
district court relied on the employers’ 2007 and 2008 tax returns. Those returns
showed that the employers’ total gross receipts were $430,439 for 2007 and
$364,165 for 2008.
Arilus contends that the district court erred in relying on the employers’ tax
returns because those returns were “fraudulent.” Arilus points out that Joseph
DiEmmanuele, Jr. testified in his deposition that when Arilus and the two other
plaintiffs worked more than 45 hours per week, he would comply with their
request to be paid in cash for the extra hours worked, and those payments were not
reported on the employees’ W-2 statements. DiEmmanuele noted, however, that
those cash payments happened “very seldom,” and would only be for “an hour or
two.”
Arilus argues that because DiEmmanuele admitted that the W-2 statements
for 2007 and 2008 were not accurate, there is a genuine issue of material fact about
whether the employers’ gross sales or business done was less than $500,000 for
1
The district court concluded that Arilus could not establish individual coverage, and
Arilus has not challenged that ruling on appeal.
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those years. We disagree. As the district court noted, even if the employers failed
to report a few cash payments on the employees’ W-2 statements, that only affects
the expenses reflected in the employers’ tax returns. It does not affect the amount
of gross receipts that were reported in those returns. And we look to gross
receipts—not expenses—to determine the “annual gross volume of sales made or
business done” in the year.
Arilus also contends that there is a genuine issue of material fact about “the
amount of times and to whom [the employers] made wage payments in cash.”
Arilus and the two other plaintiffs testified in deposition that on several occasions,
they saw the employers paying cash wages to seven or eight illegal immigrants,
although they did not specify when those payments were made. Arilus then infers
that the wages he allegedly saw being paid to illegal workers must have come from
customers who paid in cash. And he then infers that the cash received from
customers must not have been reported on the 2007 and 2008 tax returns. From
that string of inferences, Arilus concludes that the employers’ tax returns
underreported the gross receipts for 2007 and 2008. We agree with the district
court that even viewing the evidence in a light most favorable to Arilus, he has
failed to show a genuine issue of material fact. Evidence of certain cash payments
being made to employees at unspecified times is not enough to allow a jury to infer
that the employers underreported the gross receipts on their tax returns by nearly
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$70,000 in 2007 and $136,000 in 2008. See Josendis, 662 F.3d at 1318 (“At the
summary judgment stage, such ‘evidence,’ consisting of one speculative inference
heaped upon another, [is] entirely insufficient.”).
Arilus further contends that he and the other two plaintiffs saw customers
paying the employers in cash on a few unspecified occasions. Arilus testified in
his deposition that he saw cash collected from customers on only one or two
occasions, and that he had four customers who gave him cash payments. The other
two plaintiffs admitted that the employers’ policy did not allow employees to
collect payments (in cash or otherwise) from customers. They also testified that
they were paid by a customer only on rare occasions and never in cash. We agree
with the district court that those statements “lack specificity” and “appear to be
based solely on assumptions without direct knowledge of any under-reporting of
annual sales or business done.” Arilus has not shown a genuine issue of material
fact.2
III.
In cases where the unpaid overtime wages were the result of a “willful
violation,” the time period for which an employee can recover back pay is
extended by one year. See 29 U.S.C. § 255(a). The district court concluded that
2
Arilus contends that the district court erred because it made assessments about
credibility in granting summary judgment. We disagree. The court’s grant of summary
judgment was based not on the credibility of any witness or party, but on the employees’ failure
to present evidence that would allow any reasonable jury to conclude that the employers’ gross
sales or business done was more than $500,000 in 2007 and 2008.
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Arilus had not shown willfulness, and that in any event, he could not recover for
the year 2006 because the employers’ annual gross volume of sales made during
that year were less than $500,000. The court noted that although the 2006 tax
returns showed $521,701 in gross receipts for that year, the employers presented
evidence showing that they used a cash basis of accounting, and that at least
$31,075 of those receipts was for business done in 2005, making the gross volume
of sales made or business done for 2006 less than $500,000. The court also
recognized that because the employers used a cash basis of accounting, some of the
sales made or business done in 2006 might actually be reported on the 2007 tax
returns. The court ultimately concluded, however, that the plaintiffs did not present
any compelling evidence showing that enough of the employers’ 2007 receipts
related to business done in 2006 such that the total annual sales or business done in
2006 would have exceeded $500,000.
Arilus argues on appeal that the employers’ tax returns for 2006 were
“fraudulent” and that the employers “attempt to refute their own sworn-to tax
returns with a self-serving declaration” stating that the revenue reported was not
earned in that year. Arilus misapprehends the employers’ testimony about the
2006 tax returns. The employers simply explained how the gross revenue on the
2006 tax returns is not necessarily the same as the “annual gross volume of sales
made or business done” in 2006, which is the relevant question under the Act.
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Because the employers use the cash basis of accounting, which records cash
payments on the day they are received instead of the day the sale is made or the
business is done, the 2006 tax returns included receipts for business that was
actually done in 2005. That does not make the tax returns “fraudulent.” 3
AFFIRMED.
3
Because we conclude that Arilus may not recover unpaid overtime wages for 2006
because the employers were not subject to the Act’s requirements for that year, we need not
address the district court’s conclusion that Arilus failed to show that any alleged violations were
willful.
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