McKay v. Miami-Dade County
Order on Cross Motions for Summary Judgment, denying 31 Motion for Summary Judgment; granting 32 Motion for Summary Judgment. Closing Case. Signed by Judge Robert N. Scola, Jr on 10/13/2020. See attached document for full details. (pcs)
United States District Court
Southern District of Florida
Brandi McKay, Plaintiff,
Miami-Dade County, Defendant.
) Civil Action No. 20-20638-Civ-Scola
Order on Cross Motions for Summary Judgment
This matter is before the Court upon the respective cross motions for
summary judgment of the Plaintiff, Brandi McKay, and the Defendant, MiamiDade County. (ECF Nos. 31, 32.) For the reasons set forth below, the Court
denies Ms. McKay’s motion for summary judgment (ECF No. 31) and grants
the County’s motion for summary judgment (ECF No. 32).
Miami-Dade County (the “County”) is a political subdivision of the State
of Florida. The County, through the Forensic Imaging Bureau of the Medical
Examiner’s Department administers a Medical Examiner’s Forensic Imaging
Preceptorship Program (the “Program”). (ECF Nos. 30, 38 at ¶1-2.) This free
Program is well known, and many medical examiners contact the Program
when they are hiring for open positions. (ECF Nos. 33, 35 at ¶3.)
The Plaintiff, Ms. McKay applied for the Program in 2016, and after being
admitted, began her internship with the County on April 15, 2019. (ECF Nos.
30, 38 at ¶3.) She first learned of the Program while visiting Barry College to
learn about the school’s forensic photography degree program. (ECF Nos. 33,
35 at ¶4.) Other than her application to the Program, Ms. McKay did not apply
to Barry College, other colleges with a program in forensic photography or any
other programs like the County’s Program because she did not want to attend
“another four years of school.” (ECF Nos. 33, 35 at ¶5-8.) When Ms. McKay
began the Program, she did so with the understanding that it was free-ofcharge, six-months long, unpaid, and required weekend work. (ECF Nos. 33,
35 at 17; see also ECF No. 32 at 5 (noting the program is free of charge).) She
undertook the Program with the expectation of learning forensic photography
and agrees that she did indeed learn forensic photography over the course of
her internship. (ECF Nos. 33, 35 at ¶17-18.) In addition to learning about
autopsy photography, Ms. McKay learned about other topics such as ultraviolet
and infrared light and fingerprints on glass, among others. (ECF Nos. 38, 41 at
¶74, 77.) It is undisputed that Ms. McKay undertook the program knowing she
would have no opportunity to earn academic credit through her participation
and knew that her participation was not required as a condition to obtaining
professional licensure or employment. (ECF Nos. 30, 38 at ¶6.) Moreover, it is
undisputed that Ms. McKay’s participation was motived solely to help her
develop specialized photography skills and enhance her employability, and was
not undertaken for any “civic, charitable or humanitarian reasons” or to benefit
the County. (ECF Nos. 30, 38 at ¶7.) At no point was Ms. McKay promised a job
at the end of her participation in the Program. (ECF Nos. 38, 41 at ¶57.)
When Ms. McKay began the Program, she had not used any of the
equipment that was found in the County’s photography lab, except for a
camera. (ECF Nos. 33, 35 at ¶16.) In terms of the structure of the Program, at a
high level, Ms. McKay and the County agree that during the first two weeks of
her internship, Ms. McKay was given a binder of workbook assignments to
complete and during the third and fourth weeks, she received training in the
morgue where she shadowed the County’s staff photographers as they took
forensic autopsy photos. (ECF Nos. 30, 38 at ¶15-16.) During weeks five to
eight, Ms. McKay and another intern worked together in the morgue taking
autopsy photographs, sometimes with and without the supervision of County
staff photographs. (ECF Nos. 30, 38 at ¶18-19.) After her eighth week in the
program, Ms. McKay and the other Program intern would alternate the weeks
they would work taking autopsy photographs in the morgue. (ECF Nos. 30, 38
at ¶20.) On off-weeks when Ms. McKay was not working in the morgue, she
would complete assignments in the Program office. (ECF Nos. 30, 38 at ¶21.)
Ms. McKay notes these assignments were educational and included instruction
by staff photographers as well as equipment training. (ECF No. 1 at ¶17.) Over
the course of her participation in the Program, Ms. McKay received some
written feedback on her work but did not receive a formal evaluation, similar to
what the County’s staff photographers would prepare for an intern completing
their internship through an educational institution, such as Barry College.
(ECF Nos. 30, 38 at ¶32, 34-35.)
On February 12, 2020, Ms. McKay filed the instant suit against the
County, seeking minimum wage and overtime payments under the Fair Labor
Standards Act of 1938 (“FLSA”) for her participation in the Program. (ECF No.
1.) In her motion for summary judgment, Ms. McKay claims that the County
abuses the Program to “save labor costs” by providing training early in the
program so they can require their interns to work “seven days in a row . . .
performing exactly the same work that staff photographers would be
performing if interns were not available.” (ECF No. 31 at 2.) Ms. McKay also
argues that she cannot be considered a “volunteer” that is exempt from the
FLSA’s protections because she joined the County’s Program to develop her
skills and increase her employability and not for civic, charitable, or
humanitarian purposes. (ECF No. 31 at 2.) Ms. McKay argues she was an
employee of the County and must be paid minimum wage and overtime for her
time as a Program intern.
In its own motion for summary judgment, the County argues that Ms.
McKay was never a County employee as her internship was accepted without
any promise or expectation of compensation or a job at its completion, provided
similar training to what Ms. McKay would have received from a degree
program, and her internship did not displace, but rather slowed, the work of
paid staff photographers. (ECF No. 32 at 5.) In light of these facts, the County
argues that Ms. McKay could not have been considered an employee of the
County under the FLSA.
A. Summary Judgment
The Court applies the familiar legal standard for summary judgment
motions. “Summary judgment is appropriate where the pleadings, affidavits,
depositions, admissions, and the like show that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.”
Urquilla-Diaz v. Kaplan Univ., 780 F.3d 1039, 1050 (11th Cir. 2015)
(punctuation & citation omitted). “[T]o survive summary judgment, the
nonmoving party must . . . make a showing sufficient to permit the jury to
reasonably find on its behalf.” Id.
B. Fair Labor Standards Act
The FLSA, was enacted by Congress to “‘aid the unprotected,
unorganized and lowest paid of the nation’s working population.” Schumann v.
Collier Anesthesia, P.A., 803 F.3d 1199, 1207 (11th Cir. 2015) (quoting
Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697, 707 n.18 (1945)). In order to
achieve this stated purpose, the FLSA requires employers pay employees a
minimum wage and overtime. 29 U.S.C. §§ 206(a), 207(a). However, the
protections of the FLSA only extend to individuals “falling within the Act’s
definition of ‘employee’.” Id. While Congress intended for the definition of
“employee” to be “broad,” the terms “employee” and “employer” cannot be
interpreted so as to “‘make a person whose work serves only his own interest
an employee of another person who gives him aid and instruction.’” Schumann,
803 F.3d at 1208 (quoting Walling v. Portland Terminal Co., 330 U.S. 148, 152
While the FLSA broadly defines employee as “any individual employed by
an employer,” the Act exempts from that definition “any individual who
volunteers to perform services for a public agency which is a State, [or] a
political subdivision of a State . . . if the individual receives no
compensation . . . and such services are not the same type of services which
the individual is employed to perform for such public agency.” 29 U.S.C. §
203(4)(A) (emphasis added). While the FLSA itself does not define the term
“volunteer,” the Department of Labor, which is charged with enforcing the
FLSA, has issued regulations and interpretive papers defining or applying the
Specifically, the Department of Labor has defined the term “volunteer” as
meaning “[a]n individual who performs hours of service for a public agency for
civic, charitable, or humanitarian reasons, without promise, expectation or
receipt of compensation.” 29 C.F.R. § 533.101(a). In a separate interpretive
regulation also dealing with the definition of volunteer, the Department of
Labor writes that “individuals who are not employed in any capacity by State or
local governments often donate hours of service . . . for civic or humanitarian
reasons” and notes that such individuals “are considered volunteers and not
employees of such public agencies if their hours of service are provide with no
promise, expectation, or receipt of compensation for the services rendered.” 29
C.F.R. § 533.104(a). Finally, the Department of Labor has promulgated a fact
sheet which reaffirms these general principles, adding that “[u]npaid
internships for public sector . . . organizations, where the intern volunteers
without expectation of compensation, are generally permissible.” Wage & Hour
Div., U.S. Dep’t of Labor, Fact Sheet #71: Internship Programs Under the Fair
Labor Standards Act (Updated January 2018), n.1,
To prevail on minimum wage and overtime claims, a Plaintiff must
demonstrate: 1) that the defendant employed her; and 2) that she was
employed by an enterprise engaged in commerce. Vazquez v. Uooligan Gas
Station Convenience Store Inc., No. 2:18-cv-611-FtM-38NPM, 2020 WL 321151,
at *2 (M.D. Fla. May 22, 2020). As the FLSA regulations make clear that public
agencies are engaged in commerce, the main question before the Court is
whether Ms. McKay was an employee under the FLSA. See 29 C.F.R. § 553.3(b)
(“Certain definitions already in the Act were modified by the 1974
Amendments. . . . The term ‘enterprise engaged in commerce or in the
production of goods for commerce’ . . . was expanded to include public
agencies.”). Ultimately, whether an individual is an employee under the FLSA is
a question of law. Schumann, 803 F.3d at 1207.
The question presented to the Court for resolution on the parties’ cross
motions for summary judgment is as follows: as a matter of law, under the
FLSA, is an individual who voluntarily and knowingly enters into a free, unpaid
internship program without the promise of a job thereafter, for purely selfish
reasons, i.e. not for civic, charitable, or humanitarian reasons, for a political
subdivision of a State, an “employee” under the FLSA and therefore entitled to
minimum wage and overtime protections? Based on the law, applicable
regulations, and additional interpretive guidance provided by the Department
of Labor, the Court finds that such an individual is not an employee under the
FLSA and therefore not entitled to minimum wage or overtime protections.
The Plaintiff urges this Court to defer to 29 C.F.R. § 553.101 (ECF No. 31
at 6-7), which provides that an “individual who performs hours of service . . .
for civic, charitable, or humanitarian reasons, without promise, expectation or
receipt of compensation . . . is considered to be a volunteer during such hours”
and therefore exempt from the FLSA. The Plaintiff argues that because she
participated in the County’s Program for purely selfish reasons, to develop
forensic photography skills and increase her employability, she cannot be
considered a volunteer under the Department of Labor’s regulations.
Having considered the Plaintiff’s arguments, the Court is not convinced
that the regulation the Plaintiff points the Court to deals squarely with the
issues presented in this case. Rather, the Court finds it necessary to read 29
C.F.R. § 553.101, which deals with the definition of volunteers generally,
alongside 29 C.F.R. § 553.104, which deals with private individuals who
volunteer to serve public agencies. This latter regulation provides that
“individuals who are not employed in any capacity by State or local government
agencies often donate hours of service to a public agency for civic or
humanitarian reasons” and notes when such individuals undertake such
service with “no promise, expectation, or receipt of compensation” they are
considered volunteers. 29 C.F.R. § 553.104 (emphasis added). The regulation
goes on to state that there are “no limitations or restrictions imposed by the
FLSA on the types of services which private individuals may volunteer to
perform for public agencies.” Id. Unlike 29 C.F.R. § 553.101, § 553.104 does
not appear to predicate a finding of volunteer status on an individual’s civicmindedness and therefore the regulations seem to be in a degree of tension.
While 29 C.F.R. 553.101 appears to require an individual have a civic,
charitable, or humanitarian purpose, 29 C.F.R. § 553.104 seems to not require
such a conclusion.
One court to consider this question acknowledged this tension, writing
that a literal reading of 29 C.F.R. § 553.1010 would lead to “obviously absurd
result[s]” that could not have been intended by Congress and the Department
of Labor. Todaro v. Twp. Of Union, 40 F. Supp. 2d 226, 230 (D.N.J. 1999). To
illustrate its point the court used the example of a judicial intern who works for
a judge purely to bolster his resume and increase his professional prospects.
Id. The court noted classifying such an individual as an employee rather than a
volunteer under the FLSA would “offend rationality.” Id. Rather, the court said
that the definition of volunteer “must be applied in a common-sense way that
takes into account the totality of the circumstances surrounding the
relationship.” Id. In an attempt to reconcile 29 C.F.R. 553.101 with
29 C.F.R. § 553.104, the court noted its belief that the two regulations, taken
together, require a finding that an individual be motivated at least in part by a
civic-minded purpose in pursuing their internship. Id. Taking its example of
the judicial intern, the court noted that an internship motivated purely by
professional aspirations cannot take an internship out of the common-sense
idea of what constitutes volunteer services. Id.
This Court agrees in principle with the Todaro court’s result and further
agrees that a common-sense view of the term volunteer would necessitate a
finding that Ms. McKay, like the judicial intern, is a volunteer under the FLSA.
Indeed, this seems consistent with a January 2018 Department of Labor fact
sheet which notes that “[u]npaid internships for public sector . . .
organizations, where the intern volunteers without expectation of
compensation, are generally permissible.” Wage & Hour Div., U.S. Dep’t of
Labor, Fact Sheet #71: Internship Programs Under the Fair Labor Standards Act
(Updated January 2018), n.1,
However, the Court’s ultimate holding does not rest on the Department of
Labor’s regulations or Todaro, as the Court prefers another court’s approach to
this issue. See Lucia Vlad-Berindan v. NYC Metro. Trans. Auth., 14-cv-10304
(VEC) (FM), 2016 WL 1317700 (S.D.N.Y. April 1, 2016). That court concluded
that a better way to judge whether public sector interns are employees under
the FLSA is to apply the primary beneficiary test that courts otherwise use to
judge private sector internships. Lucia Vlad-Berindan 2016 WL 1317700, at *8.
In taking this approach, the court said that finding only public sector
“volunteers” are exempt from the FLSA would be “an extreme decision, and one
that could throw into disarray many public sector internship programs.” Id.
This Court agrees and accordingly its decision therefore hinges not on the
Department of Labor’s regulations, which seem to be in tension, but on the
primary beneficiary test which the Court finds should be applied to public
sector interns who do not otherwise fit the definition of volunteer.
B. Primary Beneficiary Test
The primary beneficiary test, espoused by the Second Circuit in Glatt v.
Fox Searchlight Pictures, Inc., 811 F.3d 528, 536-37 (2d Cir. 2016), 1 and
adopted by the Eleventh Circuit in Schumann v. Collier Anesthesia, P.A. assists
courts in making the sometimes difficult determination of just who is an
employee under the FLSA. Schumann, 803 F.3d at 1207, 1211-12. The test
serves three salient purposes: (1) it focuses on what an intern receives in
exchange for their work; (2) it allows courts flexibility to look at the true
economic reality of the relationship; and (3) it acknowledges the
intern/employer relationship must be looked at differently from the
employee/employer relationship because an internship necessarily has
educational or vocational benefits. Glatt, 811 F.3d at 536. The test also reflects
the fact that when reviewing FLSA cases involving “trainees,” courts, for the
most part, have “concentrated on evaluating the ‘primary beneficiary’ of the
training . . . program to determine whether participants constituted ‘employees’
. . . concluding that such an approach reveals the ‘economic reality’ of the
situation.” Id. at 1209-10. Consistent with the Lucia Vlad-Berindan court, this
Court finds no compelling reason as to why the Glatt/Schumann test cannot be
applied to determine if a public sector intern is an employee under the FLSA.
Indeed, the primary beneficiary test seems to effectuate the spirit of the FLSA
as it ensures that public sector employers are not “abus[ing] minimum wage or
overtime requirements” to pressure or coerce “individuals to volunteer their
services.” 29 C.F.R. 553.101.
In the Eleventh Circuit, the primary beneficiary test, requires a balancing
of “a non-exhaustive set of considerations,” including: (1) the extent to which
the intern and employer clearly understand that there is no expectation of
compensation; (2) the extent to which the internship provides training that
would be similar to that which would be given in an educational environment;
(3) the extent to which the internship’s duration is limited to the period in
which the internship provides the intern with beneficial learning; (4) the extent
to which the intern’s work complements, rather than displaces, the work of
paid employees while providing significant educational benefits to the intern;
Glatt was originally decided on July 2, 2015, before the Eleventh Circuit’s opinion was issued in Schumann on
September 11, 2015. The Glatt opinion was amended on January 25, 2016, and the prior opinion cited to by the
Eleventh Circuit was withdrawn. The Court cites to the amended Glatt opinion in its order.
and (5) the extent to which the intern and the employer understand the
internship is conducted without entitlement to a paid job at the conclusion of
the internship. Id. at 1211-12 (discussing Glatt, 811 F.3d at 536-37). No one
factor is dispositive, and every factor need not point in the same direction for
the court to conclude that the intern is not an employee. Id. at 1212. The test
is not concrete, but rather, requires the Court to consider the totality of the
circumstances of the relationship. Id. at 1210.
Turning to the primary beneficiary test factors, it is clear the first factor,
understanding as to compensation, weighs in favor of the County. It is
undisputed that Ms. McKay and the County understood that her participation
in the Program would be uncompensated. Indeed, the Parties agree that when
Ms. McKay began the Program, she did so with the understanding that it was
free for her and unpaid. (ECF Nos. 33, 35 at 17.)
The second factor, the extent to which the internship provides training
that would be similar to training Ms. McKay might have received in an
educational environment also weighs in favor of the County. It is undisputed
that Ms. McKay learned of the Program when visiting Barry College. Her
purpose in visiting Barry College was to learn more about the school’s forensic
photography degree program. After learning of the program, Ms. McKay did not
apply to Barry College, or even explore other colleges or any other programs
like the County’s Program because she did not want to attend “another four
years of school.” (ECF Nos. 33, 35 at ¶5-8.) The Court finds persuasive that the
County’s program provides, free-of-charge, a significant opportunity for
individuals interested in forensic photography to obtain expertise in that area
without having to expend potentially thousands of dollars and years of time on
a collegiate program. Moreover, the Program, under the guidance of the
County’s staff photographers, provides the County’s interns with an invaluable
opportunity to expand and develop their professional network before beginning
their careers in forensic photography or in a similar field. With all of this
considered, it is clear the program imparted significant benefit to Ms. McKay.
Ms. McKay voluntarily chose to undertake this free Program and decided not to
pursue her forensic autopsy photography education elsewhere. The Court
therefore finds this factor weighs heavily in favor of the County.
The third factor, the extent to which the internship’s duration is of
appropriate length, weighs very weakly, if at all, in favor of Ms. McKay. The
Eleventh Circuit explained that the duration of an internship “is not an exact
science” that will not always “match up perfectly with the skills to be taught
and the experience to be gained through the program.” Schumann, 803 F.3d at
1213. An internship that is longer than “absolutely necessary” to teach
necessary skills does not mean an intern is an employee under the FLSA, but
rather, the court must consider whether the duration of the internship is
“grossly excessive” in comparison to the period of beneficial learning. Id. at
1212-14. The Parties agree that the first week of Ms. McKay’s internship
involved extensive training in forensic photography. (ECF Nos. 30, 38 at ¶1516.) The Parties also agree that Ms. McKay learned additional techniques,
including UV/IR light and fingerprints on glass, among others, but disagree as
to how much time it took for the County’s staff photographers to train Ms.
McKay as “training time varies depending on how needy the intern is.” (ECF
Nos. 38, 41 at ¶74-77.) The Plaintiff also acknowledges that on “assignment
weeks” she would receive instruction on topics other than autopsy photography
meaning she received training throughout the duration of the Program. (ECF
No. 31 at 13.) Even if Ms. McKay was less “needy” than other interns and
required less instruction time, that does not mean that the County’s Program is
“grossly excessive” in terms of length.
The fourth factor, the extent to which the intern’s work displaces or
disrupts the work of other employees, weighs weakly in favor of Ms. McKay.
While the County contends that having interns slows the work of the County’s
staff photographers, the Plaintiff points out that the County has not conducted
an analysis to determine if that is in fact the case. (ECF No. 35 at ¶24.) The
Plaintiff instead argues that it is possible that the benefit interns provide to the
County outweighs time spent by staff photographers training those interns.
While this may be the case, the Eleventh Circuit has noted that “there is
nothing inherently wrong with an employer’s benefiting from an internship that
also plainly benefits the interns.” Schumann, 803 at 1211. The Court has
already found that Ms. McKay received significant benefits from participating in
the Program. That the relationship between the County and its interns may be
mutually beneficial is not of much consequence to the Court’s analysis as to
whether or not Ms. McKay was a County employee.
The final factor, understanding as to employment at the end of the
internship, weights in favor of the County. Neither party contends that Ms.
McKay expected a paid job with the County at the end of her internship. (ECF
Nos. 32 at 5; ECF No. 36.)
While some of the above factors weigh weakly in favor of Ms. McKay, the
majority of applicable factors weigh in favor of the County. Indeed, any factors
weighing in favor of Ms. McKay are outweighed by the clear “economic reality”
of the relationship between the County and Ms. McKay: that Ms. McKay’s free
internship allowed her to develop skills in forensic photography over a short
period of time, imparting a significant benefit to her. Consequently, under the
primary beneficiary test, the Court therefore concludes that Ms. McKay cannot
be considered an employee entitled to minimum wage and overtime protections
under the FLSA.
For the reasons stated above the Court denies Ms. McKay’s motion for
summary judgment (ECF No. 31) and grants the County’s motion for summary
judgment (ECF No. 32). The Clerk is directed to close this case. All pending
motions, if any, are denied as moot.
Done and ordered in chambers in Miami, Florida on October 13, 2020.
Robert N. Scola, Jr.
United States District Judge
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