PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 97-4802
Non-Argument Calendar
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D. C. Docket No. 96-1730-CV-DLG
ELENA BROUWER, on behalf of herself
and all others similarly situated,
Plaintiff-Appellant,
ALEJANDRO RODRIGUEZ,
Plaintiff,
versus
METROPOLITAN DADE COUNTY, a
political subdivision of the State
of Florida,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
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(April 20, 1998)
Before ANDERSON, EDMONDSON and DUBINA, Circuit Judges.
PER CURIAM:
Plaintiff appeals from the district court’s order granting
Defendant’s motion to dismiss. We conclude that the district court
properly granted the motion and affirm.
Background
Plaintiff Elena Brouwer was summoned for jury service in Dade
County, Florida, for two days. She was paid nothing for her service.
As a result, Plaintiff filed a complaint against Defendant Metropolitan
Dade County claiming that, under the Fair Labor Standards Act
(FLSA),
29 U.S.C. § 201 et seq., she is entitled to be paid minimum
wage ($4.25/hour) and overtime ($6.37/hour) for her services. Plaintiff
filed this action on behalf of herself and all other similarly situated
jurors: Dade County jurors who received no compensation or
compensation less than minimum wage.
Defendant filed a motion to dismiss arguing that no
employer/employee relationship existed to subject jury service to the
provisions of the FLSA. The district court granted the motion after
concluding that jurors were not covered by the FLSA: they are not
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“employees” of the county under the FLSA. Plaintiff appeals the
district court’s decision.
Discussion
We review a district court's grant of a motion to dismiss de
novo. See McKusick v. City of Melbourne, Fla.,
96 F.3d 478, 482
(11th Cir. 1996). In doing so, we view the facts in the light most
favorable to the Plaintiff. See Welch v. Laney,
57 F.3d 1004,
1008 (11th Cir. 1995). In addition, the determination of
employment status under the FLSA is a question of law. See
Villarreal v. Woodham,
113 F.3d 202, 205 (11th Cir. 1997).
That Dade County falls within the FLSA’s definition of
“employer” is undisputed. See
29 U.S.C. § 203(d). The
question in this case is whether the relationship between
Plaintiff and Dade County was an employment relationship.1
1
Congress’s intent seems to be that jurors would not be
3
Although the scope of coverage under the
FLSA is broad, the Supreme Court has
cautioned that the Act’s coverage has
limits. See Tony & Susan Alamo Found. v.
Secretary of Labor,
105 S.Ct. 1953, 1958 (1985).
To determine whether an employment
relationship existed, we look at the
“economic reality” of all the circumstances.
considered employees under the FLSA. Like state employees,
federal employees are protected by the FLSA. But, a separate
statute,
28 U.S.C. § 1871(b)(1), provides for the compensation
of federal jurors; and, more important, the compensation for
federal jurors is less than minimum wage.
4
See Goldberg v. Whitaker House Coop., Inc.,
81
S.Ct. 933, 936 (1961); Aimable v. Long & Scott
Farms,
20 F.3d 434, 439 (11th Cir. 1994).
Plaintiff argued to the district court that
the test established in Welch v. Laney, 57
2
F.3d at 1011, should apply. But as the district
court explained, the factors in Welch were
used to determine who, among many, was
2
On appeal, Plaintiff argues that the analysis in Antenor v.
Osnel,
88 F.3d 925 (11th Cir. 1996), should apply to this case.
But the factors used in Antenor specifically apply to
determining whether a farmworker is jointly employed by two
or more produce growers. See Antenor,
88 F.3d at 932.
Antenor involved no question about whether an activity was
employment at all, but involved a decision on who, among
many, was the employer.
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the plaintiff’s employer -- not whether an
3
employment relationship existed at all.
“Jury service is a duty as well as a
privilege of citizenship; it is a duty that
cannot be shirked on a plea of
inconvenience or decreased earning
power.” Thiel v. Southern Pac. Co.,
66 S.Ct.
984, 987 (1946). This duty and privilege does
not amount to employment. See generally
3
Even using the factors set out in Welch, Plaintiff probably
loses. The factors of whether the employer exerted control
over the employee and whether the employer had the power to
hire and to fire lead to the conclusion that Plaintiff was not
employed by Dade County. Dade County could not hire or fire
Plaintiff as a juror and could not exert much control over
Plaintiff in how she performed the duty of juror.
6
North Carolina v. Setzer,
256 S.E.2d 485,
488 (N.C. App. 1979) (“[J]ury duty is not a
form of employment . . . .”).
We see the relationship between
Plaintiff (and those similarly situated) and
Dade County as the district court did. The
district court described the true
relationship of jurors to the county:
Jurors are completely different
from state [or county] employees.
Jurors do not apply for
employment, but are randomly
selected from voter registration
lists. Jurors are not interviewed
to determine who is better qualified
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for a position; the State summons
all available persons who meet the
basic requirements . . . . Jurors do
not voluntarily tender their labor
to the state, but are compelled to
serve. Jurors are not paid a
salary, rather they receive a
statutorily mandated sum
regardless of the number of hours
worked. Jurors are not eligible for
employment benefits, do not accrue
vacation time, annual or sick leave
and do not qualify for health or life
insurance. The state does not have
the power to fire jurors for poor
performance, but must accept their
verdict. In short, there is no
indicia of an employment
relationship between state court
jurors and Dade County.
District Court Order at 7-8; see generally
8
Johns v. Stewart,
57 F.3d 1544, 1558-59 (10th
Cir. 1995) (using similar considerations
such as lack of application by plaintiff for
employment, lack of sick or annual leave,
no job security, no Social Security or
pension benefits). We agree with the
district court’s analysis of the
circumstances. No employment
relationship existed in this case; and, thus,
Plaintiff is entitled to no minimum wage
under the FLSA.
AFFIRMED.
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