Ismael Perdomo v. Ask 4 Realty & Management ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
OCT 23, 2008
No. 08-10097
THOMAS K. KAHN
________________________
CLERK
D.C. Docket No. 07-20089 CV-CMA
ISMAEL PERDOMO,
Plaintiff-Appellant,
versus
ASK 4 REALTY & MANAGEMENT, INC.,
REAL ESTATE DEPOT, INC.,
ALAN KLASFELD,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(October 23, 2008)
Before ANDERSON, BARKETT and COX, Circuit Judges.
PER CURIAM:
From approximately July 2000 to September 2005, Ismael Perdomo performed
work for Ask 4 Realty & Management, Inc., Real Estate Depot, Inc., and Alan
Klasfeld (collectively, the “Defendants”). Perdomo sued the Defendants seeking
overtime wages for the period of July 2000 to December 31, 2004, and wages for the
work performed in 2005. Perdomo’s claim is based upon the Fair Labor Standards
Act (“FLSA”), 29 U.S.C. §§ 201 et seq. The district court granted summary judgment
for the Defendants, holding that, given the undisputed facts, Perdomo was an
independent contractor and not an “employee” of the Defendants as defined by 29
U.S.C. § 203(e) of the FLSA, and so had no right to sue under its overtime or wage
provisions.
Perdomo appeals the district court’s grant of summary judgment, arguing first
that the determination of employee status is a question of fact, not of law. Second,
Perdomo argues that the district court erred in determining he was an independent
contractor and not an employee under the FLSA.
First, the district court did not err in determining Perdomo’s status as an
independent contract as a matter of law. We have held that “[a] determination of
employment status under the FLSA and the AWPA is a question of law subject to our
de novo review.” Antenor v. D & S Farms, 88 F.3d 925, 929 (11th Cir. 1996).
2
Second, the district court did not err in determining that Perdomo was an
independent contractor and thus could not avail himself of the wage and overtime
provisions of the FLSA. (R.1-50 at 9-10.) To determine whether Perdomo was an
employee or an independent contractor, we must apply the multi-factor economic
realities test. Antenor, 88 F.3d at 933. No one factor is determinative, and each
factor should be given weight according to how much light it sheds on the nature of
the economic dependence of the putative employee on the employer. Id. at 928-33.
Although our review of the district court’s determination of Perdomo’s
employment status is de novo, our analysis closely resembles that of the district court.
We agree with the district court’s determination that Perdomo was an independent
contractor, and affirm the district court’s grant of summary judgment.
One aspect of the district court’s order merits further discussion, however. The
district court, in its analysis of Perdomo’s opportunity for profit and loss,
characterized the Defendants’ $200 biweekly payment to Perdomo as a salary. Based
on the undisputed evidence before the district court, we think it more appropriate to
characterize this payment as a draw.
The district court cited Klasfield’s deposition (R.1-38 Ex. B at 20-21) for the
proposition that Perdomo received a salary. (R.1-50 at 7.) But Klasfield never
characterizes the biweekly pay as a salary; that word is exclusively used by
3
Perdomo’s lawyer. (R.1-38 Ex. B at 20-21.) Indeed, in his statement of material facts
in his reply brief in support of his motion for summary judgment, Klasfield
characterizes the biweekly pay as part of Perdomo’s per-job compensation and cites
to pages 15 and 41 of his deposition in support. (R.1-43 at 2.) At page 41 of his
deposition, Klasfield says that the “$100 a week was basically just an advance against
the work that he was doing.” (R.1-38 Ex. B at 41.) Perdomo does not cite any
evidence in his response brief to the Defendants’ motion for summary judgment or
in his own motion for partial summary judgment that contradicts Klasfeld’s
characterization of the biweekly pay as a draw. Accordingly, the undisputed evidence
shows that the $200 biweekly payment was a draw, not a salary.
Because we agree with the district court’s determination that Perdomo was an
independent contractor, we affirm the district court’s grant of summary judgment for
the Defendants.
AFFIRMED.
4