Roberto Borja v. Hines Nurseries, Inc. ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF
APPEALS
No. 05-16435 ELEVENTH CIRCUIT
Non-Argument Calendar MARCH 27, 2006
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 04-22705-CV-PAS
ROBERTO BORJA,
Plaintiff-Appellant,
versus
HINES NURSERIES, INC.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(March 27, 2006)
Before DUBINA, HULL and COX, Circuit Judges.
PER CURIAM:
Roberto Borja (“Borja”) appeals the district court’s grant of summary judgment
in favor of Hines Nurseries, Inc. (“Hines”), disposing of his overtime claim under the
Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., as well as his claim for
workers’ compensation retaliation under Florida Statutes § 440.205. The district
court judge granted summary judgment to Hines on the FLSA claim based on the
finding that, as an agricultural employee, Borja was exempt from the protections of
the FLSA as to overtime pay. See 29 U.S.C. § 213(b)(12). The judge granted
summary judgment on the Florida Workers’ Compensation retaliation claim because
Borja could not make out a prima facie case for retaliation. We agree with the district
court’s decisions and affirm.
During all times relevant to this case, Borja was employed by Hines as either
a driver of “jockey trucks,” which move empty plant trailers to a portion of the Hines
facility where they are loaded with plants in preparation for sale, or as a “staging
area” employee, with the responsibilities of watering plants, loading plants onto
trailers, and picking up trash in the nursery area. About three weeks before the
termination of his employment, Borja complained to his superiors of breathing
problems. Hines sent Borja to a workers’ compensation doctor for evaluation. The
doctor concluded that Borja suffered from no work-related condition. Subsequently,
Borja returned to work. On October 18, 2004, Borja’s superior noticed that he was
not working and questioned him about how he felt. Borja responded that he was
having breathing problems. The supervisor then demanded that Borja see a doctor
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to certify that he was able to return to work. Borja did not do so. Instead, he simply
returned to work the next day, at which time he was ordered to discontinue working
until he obtained certification from a doctor of his fitness to work. Borja left his job
that day and never returned.
Borja makes two principal contentions on appeal. First, he contends that,
because some of his job included picking up trash in the nursery, none of his
employment was exempt from FLSA overtime regulations. This contention is
meritless. Both the Department of Labor and Supreme Court have made clear that
activities that are secondary to farming, but supportive of it, are included within the
agricultural exemptions to the FLSA. See 29 U.S.C. § 213(b)(12); 29 C.F.R. §§ 780.
153, 780.154, 780.155, 780.158. Among those supportive, yet exempt, positions
listed in the Code of Federal Regulations are secretaries, bookkeepers, night
watchmen, and maintenance workers. 29 C.F.R. § 780.158(a). The regulation also
exempts a cook for the agricultural workers. 29 U.S.C. § 780.158(b). Surely, the
person who cleans the area where the crops are stored fits within this group, as does
the person who transports empty containers to a portion of the farm where they will
be filled with crops. See Maneja v. Waialua Ag. Co., 349 U.S. 254, 270-71, 75 S. Ct.
719, 728-29 (1955) (holding that the sugar processing exemption under what is now
29 U.S.C. § 213(j) “covers the workmen during the processing season while . . .
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cleaning the equipment during the week-end shut-down, and performing other tasks
closely and intimately connected with the processing operation.”).
Borja also contends that the district court erred in finding that Borja could not
make out a prima facie case of retaliation under Florida Statutes § 440.205 because
he could not show that he had suffered an adverse employment action. See, e.g.,
Sierminski v. Transouth Financial Corp., 216 F.3d 945, 950-51 (11th Cir. 2000)
(holding that the burden-shifting approach from Title VII1 can be applied in Florida
workers’ compensation retaliation cases); Humphrey v. Sears, Roebuck, & Co., 192
F. Supp. 2d 1371 (S.D. Fla. 2002) (same). Borja argues that he was fired on October
18, 2004 when his supervisor, Sammy Locknath, stated that he did not want Borja to
work anymore. However, Borja misrepresents what Locknath actually said. On
October 18th, Borja told Locknath that he was not feeling well, and Locknath ordered
him to see a doctor to get clearance to work and stated in that regard that he did not
want Borja to work anymore without such certification. On the next day, when Borja
reported to work without any certification of his ability to work, Locknath ordered
1
The burden-shifting approach from Title VII retaliation cases requires a plaintiff to show
(1) that he sought the protections of the relevant statute; (2) that he suffered an adverse employment
action; and (3) that there exists a causal link between the adverse action and his seeking the statute’s
protections. See Little v. United Technol., Carrier Transicold Div., 103 F.3d 956, 959 (11th Cir.
1997). Once the plaintiff makes this showing, the defendant may then offer legitimate, non-
retaliatory reasons for the adverse employment action, and once this occurs, the plaintiff must
overcome those reasons by presenting evidence that they are pretextual. See Hairston v. Gainesville
Sun Pub. Co., 9 F.3d 913, 919-921 (11th Cir. 1993).
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him to discontinue working, stating that failure to comply would cause Locknath to
have to call the police.
At no time did Locknath fire Borja. The evidence before the district court on
summary judgment was that Borja needed only to obtain medical certification of his
fitness to work in order to return to his job. When Borja left his job on October 19th
and did not return, he was deemed to have resigned, pursuant to established, written
company policy. Thus, the only “adverse employment action” that Borja suffered was
of his own making. The mere temporal proximity of Borja’s constructive resignation
to his requests for workers’ compensation cannot establish the prima facie case
required for a retaliation claim where the company took no affirmative action to
remove Borja from the payroll until Borja abandoned his job.
Accordingly, we affirm the district court’s grant of summary judgment to
Hines.
AFFIRMED.
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