Yanno Bevacqua v. Magnetic Medical Management, Inc. , 504 F. App'x 831 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_____________________________
No. 12-12011
Non-Argument Calendar
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D. C. Docket No. 9:11-cv-81049-DMM
RISA KAPLAN,
Plaintiff-Appellant,
versus
CODE BLUE BILLING & CODING, INC.,
LINDA M. YON,
Defendants-Appellees.
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_____________________________
No. 12-12376
Non-Argument Calendar
_____________________________
D. C. Docket No. 9:11-cv-81179-DMM
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YANNO BEVACQUA,
Plaintiff-Appellant,
versus
MAGNETIC MEDICAL MANAGEMENT, INC.,
Defendant-Appellee.
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_____________________________
No. 12-12679
Non-Argument Calendar
_____________________________
D. C. Docket No. 2:11-cv-14384-DLG
LINDA O’NEILL, individually and on behalf of
all others similarly situated,
Plaintiff-Appellant,
versus
EAST FLORIDA EYE INSTITUTE, P.A.,
a Florida corporation,
Defendant-Appellee.
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_________________________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________________________
(January 22, 2013)
Before TJOFLAT, PRYOR, and EDMONDSON, Circuit Judges.
PER CURIAM:
In this consolidated appeal, Plaintiffs Risa Kaplan, Yanno Bevacqua, and
Linda O’Neill challenge the district court’s grant, in favor of defendants, of
summary judgment, dismissing Plaintiffs’ claims under the Fair Labor Standards
Act, 29 U.S.C. §§ 201-216 (“FLSA”). No reversible error has been shown; we
affirm.
Plaintiffs were enrolled as students in MedVance Institute’s Medical Billing
and Coding Specialist program. To graduate, MedVance required all students to
complete an externship after finishing their other course work. Kaplan, Bevacqua,
and O’Neill completed student externships, respectively, at Code Blue Billing &
Consulting, Inc. (“Code Blue”), Magnetic Medical Management, Inc. (“MMM”),
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and East Florida Eye Institute, P.A. (“EFEI”) (collectively, “Defendants”).
Plaintiffs neither expected nor received payment for the work they performed
during their externships.
Sometime after completing their externships, Plaintiffs each filed a
complaint for minimum wage under the FLSA for work they performed during
their externship. In essence, Plaintiffs argued that -- given the lack of formal
structure and the repetitive nature of the work they were assigned -- they received
very little educational benefit from their externships and, instead, they conferred
economic benefit on Defendants. As a result, Plaintiffs contend that they qualify
as “employees” under the FLSA and are entitled to minimum wage.
The district court granted Defendants’ motions for summary judgment. The
district court concluded that neither Kaplan nor O’Neill were “employees” within
the meaning of the FLSA. And the court dismissed Bevacqua’s suit as barred by
the statute of limitations.
We review a district court’s grant of summary judgment de novo; and we
view the evidence and all reasonable factual inferences in the light most favorable
to the nonmoving party. Maniccia v. Brown, 171 F.3d 1364, 1367 (11th Cir.
1999).
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First, we conclude that Bevacqua’s suit was barred by the statute of
limitations. An action for minimum wages under the FLSA must be brought
within two years. 29 U.S.C. § 255(a). But the statute of limitations extends to
three years if the claim is one “arising out of a willful violation.” Id. That
Bevacqua filed his lawsuit more than two years -- but less than three years -- after
his cause of action accrued is undisputed.
Bevacqua argues that the three-year statute of limitations applies in his case
because MMM violated willfully the FLSA when it assumed, without
investigation, that externs did not need to be paid. To establish a willful violation
of the FLSA for purposes of extending the limitations period, Bevacqua “must
prove by a preponderance of the evidence that [MMM] either knew that its
conduct was prohibited by the statute or showed reckless disregard about whether
it was.” See Alvarez Perez v. Sanford-Orlando Kennel Club, Inc., 515 F.3d 1150,
1162-63 (11th Cir. 2008). Where “an employer acts unreasonably but not
recklessly in determining its legal obligation under the FLSA,” we do not consider
its acts willful. Allen v. Bd. of Pub. Educ., 495 F.3d 1306, 1324 (11th Cir. 2007).
Bevacqua failed to demonstrate that MMM’s acts triggered the three-year
statute of limitations. Bevacqua does not contend that MMM knowingly violated
the FLSA. And -- because MMM knew that Bevacqua would receive academic
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credit in exchange for his work and that completion of such an externship was
required for graduation -- we cannot say that MMM acted recklessly in assuming
that Bevacqua could be unpaid. Thus, Bevacqua’s complaint was subject to the
two-year statute of limitations and was dismissed properly as time-barred.
On appeal, Kaplan and O’Neill argue that the district court erred in
concluding that they were not “employees” under the FLSA. Whether a person is
an “employee” within the meaning of the FLSA1 is a question of law that we
review de novo. Villareal v. Woodman, 113 F.3d 202, 205 (11th Cir. 1997).
In determining whether an employer-employee relationship exists under the
FLSA, we must consider the “economic realities” of the relationship, including
whether a person’s work confers an economic benefit on the entity for whom they
are working. See Donovan v. New Floridian Hotel, Inc., 676 F.2d 468, 470 (11th
Cir. 1982). But, when a person works for his own advantage or personal purpose -
- particularly when his work provides no “immediate advantage” for his alleged
“employer” -- he is not an “employee” under the FLSA. See Walling v. Portland
Terminal Co., 67 S.Ct. 639, 641-42 (1947) (explaining that the FLSA’s broad
definition of “employee” “cannot be interpreted so as to make a person whose
1
The FLSA defines “employee” as “any individual employed by an employer.” See 29 U.S.C.
§ 203(e)(1). And the phrase “to employ” is defined as “to suffer or permit to work.” 29 U.S.C. §
203(g).
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work serves only his own interest an employee of another person who gives him
aid and instruction.”).
Although Kaplan and O’Neill argue that their externship experiences were
of little educational benefit, they did in fact engage in hands-on work for their
formal degree program. Kaplan and O’Neill also received academic credit for
their work and, by completing an externship, were eligible to earn their degrees.
Kaplan and O’Neill argue that, because they were performing tasks for
Defendants’ businesses, Defendants benefitted economically from their work. The
undisputed evidence, however, demonstrates that Defendants’ staff spent time --
time away from their own regular duties -- training Plaintiffs and supervising and
reviewing Plaintiffs’ work. Even viewing the evidence in the light most favorable
to Plaintiffs, Plaintiffs caused Defendants’ businesses to run less efficiently and
caused at least some duplication of effort. Defendants received little if any
economic benefit from Plaintiffs’ work. Thus, under the “economic realities” test,
Plaintiffs were not “employees” within the meaning of the FLSA. See New
Floridian Hotel, Inc., 676 F.2d at 470.
This conclusion is also supported by guidance from the Department of
Labor’s Wage and Hour Administrator. The Administrator has identified six
factors -- derived from the Supreme Court’s decision in Portland Terminal --
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pertinent to determining whether a trainee qualifies as an employee under the
FLSA.2 “The rulings, interpretations and opinions of the Administrator under [the
FLSA], while not controlling upon courts by reason of their authority, do
constitute a body of experience and informed judgment to which courts and
litigants may properly resort for guidance.” Dade Cnty. v. Alvarez, 124 F.3d
1380, 1385 (11th Cir. 1997) (citing Skidmore v. Swift & Co., 65 S.Ct. 161, 164
(1944)).
The externship programs at Code Blue and EFEI satisfy all six of the
Administrator’s criteria. The training provided was similar to that which would be
given in school and was related to Plaintiffs’ course of study. The training
benefitted Plaintiffs, who received academic credit for their work and who
2
Under the Administrator’s test, a trainee is not an “employee” if these six factors apply:
(1) the training, even though it includes actual operation of the facilities of the
employer, is similar to that which would be given in a vocational school;
(2) the training is for the benefit of the trainees;
(3) the trainees do not displace regular employees, but work under close supervision;
(4) the employer that provides the training derives no immediate advantage from the
activities of the trainees and on occasion his operations may actually be impeded;
(5) the trainees are not necessarily entitled to a job at the completion of the training
period; and,
(6) the employer and the trainees understand that the trainees are not entitled to
wages for the time spent in training.
Wage & Hour Manual (BNA) 91:416 (1975); see also Donovan v. Am. Airlines, Inc., 686 F.2d 267,
273 n.7 (5th Cir. 1982).
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satisfied a precondition of graduation. Both Kaplan and O’Neill were supervised
closely and did not displace Defendants’ regular employees. Defendants received
no immediate advantage from Plaintiffs’ work and, at times, were impeded by their
efforts to help train and supervise Plaintiffs. And both Kaplan and O’Neill admit
that they were unentitled to a job after their externships and that they understood
that the externship would be unpaid.
Because no genuine issue of material fact exists, we affirm the district
court’s grant of summary judgment in favor of Defendants.
AFFIRMED.
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