Romero v. Harmony Retirement Living, Inc.

Filing 38

ORDER adopting and confirming 34 REPORT AND RECOMMENDATION. Plaintiff Gloria Romero's Objection to the Report and Recommendation (Doc. No. 37 , filed August 2, 2013, is SUSTAINED in part and OVERRULED in part. Plaintiff's fourth obje ction, concerning Defendant Harmony Retirement Living, Inc.'s professional exemption affirmative defense, is SUSTAINED. Plaintiff's remaining objections are OVERRULED. Plaintiff's Motion for Partial Summary Judgment (Doc. No. 28 ), filed May 21, 2013, is DENIED. This case is REFERRED to Magistrate Judge Spaulding to conduct a settlement conference prior to trial. Signed by Chief Judge Anne C. Conway on 9/16/2013. (SR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
GLORIA ROMERO,
Plaintiff,
v.

Case No: 6:12-cv-838-Orl-22KRS

HARMONY RETIREMENT LIVING, INC.,
Defendant.

ORDER
This cause comes before the Court on Plaintiff Gloria Romero’s (“Plaintiff”) Objection
(Doc. No. 37) to the Magistrate Judge’s Report and Recommendation (the “R&R”) (Doc. No.
34) concerning Plaintiff’s Motion for Partial Summary Judgment (Doc. No. 28). Defendant
Harmony Retirement Living, Inc. (“Defendant”) opposed the Motion for Partial Summary
Judgment (see Doc. Nos. 30, 31) but failed to respond to Plaintiff’s Objection. For the reasons
contained herein, Plaintiff’s first three objections are overruled, the fourth is sustained, and the
Magistrate Judge’s R&R will be adopted and confirmed.
I. BACKGROUND
Plaintiff filed a Complaint against Defendant seeking unpaid overtime compensation
pursuant to the Fair Labor Standards Act, 29 U.S.C. §§ 201–219. (“FLSA”). Plaintiff was
employed as a “caregiver” by Defendant from July 2006 to January 2011; she was paid $12.00
per hour, but claims that she regularly worked in excess of forty hours per week without being
paid time and a half for those overtime hours. Plaintiff moved for partial summary judgment only
on the issues of Defendant’s liability under the FLSA and the availability of liquidated damages.

II. LEGAL STANDARD
District courts review de novo any portion of a magistrate judge’s disposition of a
dispositive motion to which a party has properly objected. Fed. R. Civ. P. 72(b)(3); Ekokotu v.
Federal Express Corp., 408 F. App’x 331, 336 n.3 (11th Cir. 2011) (per curiam).1 The district
judge may reject, modify, or accept in whole or in part the magistrate judge’s recommended
disposition, among other options. Fed. R. Civ. P. 72(b)(3). De novo review of a magistrate
judge’s findings of fact must be “independent and based upon the record before the court.”
LoConte v. Dugger, 847 F.2d 745, 750 (11th Cir. 1988). The district court “need only satisfy
itself that there is no clear error on the face of the record” in order to affirm a portion of the
Magistrate Judge’s recommendation to which there is no objection. Fed. R. Civ. P. 72 advisory
committee’s note (1983).
III. ANALYSIS
Magistrate Judge Spaulding recommended that the Motion be denied as to liability
because Plaintiff failed to establish that Defendant is a covered enterprise under the FLSA, the
statute of limitations prohibits liability for pay periods more than two years before Plaintiff filed
suit (absent a finding of willfulness, which Plaintiff did not assert on summary judgment), and
Defendant introduced sufficient evidence to raise material issues of fact as to its liability for pay
periods during the past two years. Because of those issues of fact, Magistrate Judge Spaulding
was unable to determine whether Defendant acted in good faith for purposes of deciding whether
liquidated damages were available.
Plaintiff raises four objections in the instant filing: (1) that sufficient publicly-available
evidence exists to establish that Defendant is covered by the FLSA; (2) that sufficient record
1

Unpublished Eleventh Circuit cases are persuasive, but not binding.

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evidence is available to establish the existence, though not the amount, of unpaid overtime hours;
(3) that Defendant did not produce any evidence of good faith; and (4) that summary judgment is
appropriate on Defendant’s affirmative defense asserting the professional exemption to the
FLSA.
Plaintiff’s first objection is overruled because the Magistrate Judge correctly determined
that Plaintiff failed to cite any evidence in the record that established FLSA coverage of
Defendant. Plaintiff’s discussion of this issue is confined to a single conclusory footnote in her
Motion, (see Mot. Summ. J. 3 n.3), which the Magistrate Judge correctly concluded was
insufficient to satisfy Plaintiff’s burden to “show[] that there is no genuine dispute as to any
material fact.” Fed. R. Civ. P. 56(a).
Although Plaintiff does provide some evidence supporting her claim for unpaid overtime
hours, and correctly notes that Defendant’s records indicate that she worked some overtime,
Defendant provided sufficient evidence in its Memorandum in opposition to the Motion (Doc.
No. 31) to generate material issues of fact that foreclose summary judgment. Specifically, Evelyn
Bryden testified in the form of an affidavit that she personally received calls from Plaintiff
requesting that she “punch out” Plaintiff’s time card after Plaintiff “had already left the
workplace for several hours.” (Mem. Opp’n Ex. C (Doc. No. 31-3) ¶ 7.) The law governing
summary judgment is quite indulgent of non-movants’ testimony. Generally, “a [non-movant’s]
testimony cannot be discounted on summary judgment unless it is blatantly contradicted by the
record, blatantly inconsistent, or incredible as a matter of law, meaning that it relates to facts that
could not have possibly been observed or events that are contrary to the laws of nature.”
Feliciano v. City of Miami Beach, 707 F.3d 1244, 1253 (11th Cir. 2013) (citing Scott v. Harris,
550 U.S. 372, 380–81, 127 S. Ct. 1769, 1776 (2007)). In this case, Bryden’s testimony creates a

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material issue of fact as to whether Plaintiff actually worked any of the overtime hours that she
claimed.2
Plaintiff claims that her burden of proof is limited to demonstrating that she “performed
work for which [s]he was improperly compensated . . . [by] produc[ing] sufficient evidence to
show the amount and extent of that work as a matter of just and reasonable inference.” Moon v.
Technodent Nat’l, Inc., No. 5:06-cv-358-Orl-19GRJ, 2008 U.S. Dist. LEXIS 40423, at *6 (M.D.
Fla. May 19, 2008) (citation omitted). While this may be the burden on a plaintiff seeking to
avoid judgment as a matter of law, as was the plaintiff in Moon, a party in the same procedural
posture as Plaintiff in the present case bears the burden of demonstrating, consistent with Rule
56, that there is no issue of material fact to preclude a finding of liability. Whether Defendant’s
conflicting evidence is sufficient to sustain its burden at trial is of no moment – by seeking
summary judgment, Plaintiff assumes a considerable burden of proof that she is presently unable
to meet. Thus, Plaintiff’s second objection will also be overruled.
Because the Court cannot grant summary judgment as to Defendant’s liability, there is no
basis to find that Defendant failed to act in good faith in denying Plaintiff overtime pay.
Accordingly, Plaintiff’s third objection is overruled.
Finally, Plaintiff’s fourth objection is sustained. There is no issue of material fact to
foreclose summary judgment in favor of Plaintiff on Defendant’s ninth affirmative defense,
concerning the professional exemption to the FLSA. It is clear that neither party disputes that
Plaintiff was paid an hourly wage. The Magistrate Judge did not reach this issue, so this finding
is not inconsistent with the R&R.
2

Plaintiff’s request to depose Bryden before disposition of the Objection is denied. The
Court cannot make credibility determinations at this stage, so deposition testimony would likely
be of little use in light of the affidavit.

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IV. CONCLUSION
Based on the foregoing, it is ordered as follows:
1.

Magistrate Judge Spaulding’s July 19, 2013 Report and Recommendation (Doc.

No. 34) is ADOPTED and CONFIRMED and made a part of this Order.
2.

Plaintiff Gloria Romero’s Objection to the Report and Recommendation (Doc.

No. 37, filed August 2, 2013, is SUSTAINED in part and OVERRULED in part. Plaintiff’s
fourth objection, concerning Defendant Harmony Retirement Living, Inc.’s professional
exemption affirmative defense, is SUSTAINED. Plaintiff’s remaining objections are
OVERRULED.
3.

Plaintiff’s Motion for Partial Summary Judgment (Doc. No. 28), filed May 21,

2013, is DENIED.
4.

This case is REFERRED to Magistrate Judge Spaulding to conduct a settlement

conference prior to trial.
DONE and ORDERED in Chambers, in Orlando, Florida on September 16, 2013.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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