Reinaldo Ramon Lamonica v. Safe Hurricane Shutters, Inc.

one has attempted No even refute the LAMONICA, Reinaldo Augustin concern Ramon relationship

EPA’s about the be- Milan, Angeles opacity Soler, particulate tween matter or Lamonica Mar Feliciano, io relationship Alborez, al., that consideration of the is an Guillermo et Plaintiffs-Appellees, wholly within issue the mainstream the responsibilities. agency’s view, my process just functioned SHUTTERS, INC., SAFE HURRICANE is supposed as it to. The EPA did not corporation, a Florida d.b.a. Advanced ball, anything hide it did not do Protection, Hurricane Steve Heidel irrational, arbitrary, capricious, it berger, McCarrol, Francis Defen gave ample opportunity to interested dants-Appellants. groups explain positions their own No. 11-15743. concerns, and,

allay the EPA’s least my opinion, clearly explained its own Appeals, United States Court and final I concerns decision. believe the Eleventh Circuit. appellant’s fails to support posi- record and, law, March applicable tion under supports the EPA’s actions and decision. majority’s conclusion that the EPA

“failed articulate an error” reflects a majority

determination of what expects

the articulation of error sound like and to do process

less with the EPA’s or its

findings quality particulate about air

matter. question

When is whether the EPA authority

had reconsider under 110(k)(6), agen- we should read what the

cy Register said Federal

particular case at hand and ask whether agency says wrong that it was on a

prior occasion. Doing so remains the best

toway asking “magic avoid words” and way

is the best to determine whether the

agency’s of its regardless brief or actions — argument, Op.

oral Majority see 1288-89

& n. 11—were consistent with the law by Congress.

enacted reasons, respectfully

For these I dissent. PRYOR,

Before BARKETT and Circuit BATTEN,* Judges, and District Judge. BATTEN, Judge: District appeal This is an from a judgment awarding unpaid wages liquidated damages under the Fair Labor Standards (“FLSA”). Act Appellees challenge the itself, judgment as well the district post-trial court’s denial of their motions under Federal Rules of Civil Procedure 50(b) 59(e). For the reasons that follow, we affirm.

I. BACKGROUND Augustin Mario Feliciano and Milan for- merly installed hurricane shutters for Safe Shutters, Hurricane In Inc. relation to employment, brought this action along with seven of their former co-work- unpaid wages ers recover un- corpo- der FLSA. addition defendant, they president rate its sued CEO, Leiva, Edward and two of its di- rectors, Steve and Francis trial, McCarroll. After found in favor of Milan and against Feliciano and defendants, awarding damages all Zidell, Kelly, Karl David H. Jamie Law $20,849.38 $1,312.50 and Feliciano Marban, Gables, Eddy of Coral Offices O. subsequently The district court Milan. de- FL, Klein, Sarah Ruth Law Office of Sa- and termined that Feliciano Milan were Klein, Lauderdale, FL, rah Ruth Fort in liquidated damages entitled to Marguerite Smith, Longoria, Maria Sam J. equal damages amount to their actual and Smith, LLP, FL, Tampa, Burr & for Plain- in judgment final favor of Felici- entered tiffs-Appellees. $41,698.76 in the amount in ano of and Boreth, Kleppin, Chris O. Harry Barry $2,625.00. favor of Milan in the amount of Zinchiak, Feingold, Kristopher G. Walter entered, After judgment was Safe Glasser, PA, Kleppin, Boreth & Fort Lauderdale, Shutters, Heidelberger, FL, Hurricane Defendants-Appel- for lants. motion for judg- McCarroll filed renewed * Batten, Sr., Georgia, designation. Timothy sitting by Honorable of C. United States District Court for Northern District

1306 from re- law ano and Milan should be barred a matter of and alternative ment as Rule covering under Federal of under the for new trial FLSA. motion 50(b). They filed also Civil Procedure held that undocu- previously We have judgment alter amend the motion to may “employees” mented aliens are who 59(e). de- The district court under Rule unpaid wages under the FLSA. recover Hurricane Shut- nied motions. Safe both S., 700, Quality v. Inn 846 F.2d 706 Patel ters, ap- now Heidelberger, and McCarroll (11th Cir.1988). Appellants argue that the judgment, as well as the district peal the Qual- effectively Supreme Court overruled mo- denying post-trial their court’s order ity Compounds, Inn in Plastic Hoffman tions. NLRB, 137, 148-52, 122 Inc. v. 535 U.S. (2002). 1275, 152 L.Ed.2d 271 How- S.Ct. II. DISCUSSION ever, appeal require in this The issues raised by holdings are bound of earlier [w]e several different stan- application of clearly and until panels unless are review, of of each which will be dards by en overruled court banc or below. discussed context Supreme Court. While interven- ing of can Supreme decision Court A. In Pari Delicto prior panel overrule the decision of a First, Appellants argue court, Supreme our Court decision court have granted district should clearly on point. must be judgment as a matter of motion law (11th Scott, 701, Randall v. 707 delicto, pari the doctrine of in based on Cir.2010) (internal quotation citations par plaintiff which that “a who has states omitted). marks For the reasons that fol- may ticipated wrongdoing not recover low, clearly not point Hoffman damages resulting wrongdoing.” from Quality therefore did not overrule Inn. Comm. Unsecured Creditors Official Hoffman, Supreme held Court Edwards, 1145, PSA, Inc. v. 437 1152 F.3d Cir.2006) (11th backpay NLRB cannot award (quoting Black’s Law Dic (7th ed.1999)). tionary are undocumented aliens who terminated review a “We ruling judg activity court’s on a for union in violation of the Na- district motion (“NLRA”). matter law Hub ment as a de novo.” Act tional Labor Relations Inc., Bancorp, bard BankAtlantic v. its the Court did disturb (11th Cir.2012). 713, prior holding that undocumented aliens “plainly statutory within the broad come argue that Appellants both Feliciano and ” ‘employee’ in the definition contained participated wrongdoing by Milan Sure-Tan, NLRB, NLRA. Inc. accurately report failing the income 2803, 81 L.Ed.2d U.S. S.Ct. they earned from Safe Hurricane Shutters (1984). Instead, emphasized the Court They argue further that Mi- the IRS. merely limiting that it remedies participated wrongdoing lan in the because available to undocumented aliens under he an undocumented alien not author- was 152, Hoffman, the NLRA. See 535 at States, U.S. ized to work the United and he (“Lack authority 122 to S.Ct. 1275 applied to work Hurricane for Safe Shut- award not mean the Security backpay ters does that using false Social number.1 scot-free.”). result, Appellants Quality As a Felici- off In gets contend that FLSA, immigration was an 1. status we will assume that he indeed Milan’s was conclu- trial, during the he sively at but we find undocumented alien time established because ability to under worked Safe Hurricane irrelevant his recover the Shutters.

1307 Act, Inn, we found the statutory definitions of are barred from nevertheless recover- ing unpaid NLRA and FLSA to be “employee” wages thereunder. upon analogous, and we drew Sure-Tan’s Moreover, does not give Hoffman concluding of the NLRA in that analysis us cause to reconsider whether the IRCA “employees” also

undocumented aliens are intended by was to amend the FLSA im F.2d at under the FLSA. 846 702-03. plication, removing undocumented aliens nothing does to cast doubt on Hoffman protection. course, from its Of Hoffman portion of our holding. not even go respect did this far with to the NLRA; Nor cast does doubt on it merely concluded that in light Hoffman holding may policies IRCA, that undocumented aliens underlying our an wages their unpaid backpay recover under award of to an undocumented NLRA, beyond The which was at issue in alien “lies FLSA. bounds of the Hoffman, grants the “broad discre Board’s NLRB remedial discretion.” 535 U.S. at 149, so, 122 tion devise remedies that effectuate the S.Ct. 1275. Even to give full Act, policies subject arguments, of the to limited consideration to Appellants’ we Sure-Tan, judicial review.” 467 U.S. at will determine whether Hoffman’s reason 898-99, judi ing 104 This limited in Quality reasoning S.Ct. 2803. undermines our Inn. authority reject In so, cial review includes the doing reemphasize we remedy the NLRB’s chosen where it by implication “amendments are disfa upon policy statute or Only “trenches federal Congress’ vored. when intent to re competence outside Board’s admin or peal amend is clear manifest will we Hoffman, 147, ister.” 535 U.S. implicitly conclude that a act repeals later an 1275. Inn, S.Ct. exercise Quality or amends an earlier one.” Hoffman judicial rejected Court authority; F.2d at 704. remedy ground the NLRB’s on the that it In Hoffman, the Court concluded that upon policies underlying trenched awarding backpay to undocumented aliens Immigration Reform Control Act of under the NLRA would inconsistent (“IRCA”). “ IRCA, ‘forcefully’ with which made combating illegal employment aliens contrast, body no administrative policy immigration central ‘[t]he or court is vested with to fashion discretion 147, 122 law.’” 535 U.S. S.Ct. 1275 remedy under the appropriate FLSA. Immigrants’ INS v. Nat’l Ctr. Instead, (quoting provides the Act unequivocally Inc., Rights, 194 & n. 8, any employer mini U.S. who violates its (1991)). wage mum or S.Ct. 116 L.Ed.2d 546 The overtime “shall be provisions rejected employee employees Congress to the view that liable affect Court unpaid ed in the amount of their minimum would have made it a crime for an alien to wages, unpaid compensa employment or their false obtain documents tion, be, may as the and in an permit case addi and “nonetheless intended to back- equal liquidated employer’s tional amount dama where but for an unfair 216(b). ges.”2 practices, alien-employee Unlike the labor U.S.C. would NLRA, nothing illegal- there is in the FLSA that have remained in United States allow ly, illegally, would us to conclude undocu and continued to work all the aliens, evading although protected successfully apprehension by mented the while ever, liqui- unpaid wages regard- court has not to award be awarded discretion must damages that the dated if it finds defendant employer’s good less of the faith. good acted in 29 U.S.C. 260. How- faith. 1308 doctrine bars 149, gue pari at 122 that the in delicto Id. authorities.”

immigration recovering that and Milan from 1275. The Court reasoned both Feliciano S.Ct. in a case like this not failed to “awarding backpay under the FLSA because laws, immigration it only trivializes to the accurately report their income IRS. encourages future viola- condones and also may be pari The in delicto defense 150,122 1275. at S.Ct. tions.” Id. recovery under federal applied to bar contrast, plaintiff In an FLSA “is (1) plaintiff where bears statute back for to recover attempting not substantially equal responsibility least job” he unlawfully deprived of being (2) redress, he to the violations seeks lawfully performed. never could have suit not substan preclusion of the would Inn, “Rather, he Quality F.2d at 846 tially policy interfere with the statute’s unpaid to minimum seeks recover simply Eichler, Hill Rich goals. Bateman See already per and overtime for work wages ards, Berner, 299, 310-11, 472 Inc. v. U.S. Id. formed.” 2622, (1985); 215 105 86 L.Ed.2d S.Ct. circumstances, immigration In such Edwards, F.3d at 1154-55. “The first already The law violation has occurred. captures this test the essential prong of does itself unpaid wages] not [award the classic delicto doc pari elements of It or continue it. condone violation 622, 633, Dahl, Pinter v. 486 U.S. trine.” does merely ensures that (1988). 2063, 100 108 S.Ct. L.Ed.2d of the violation advantage not take “embodies the doctrine’s tradi second availing of the benefit of undocu- himself public policy impli requirement tional pay- past mented workers’ labor without carefully considered before the cations be accordance with minimum ing is allowed” and “ensures defense FLSA standards. judge-made law does not undermine broad Found., Inc., v. Hous. Madeira Affordable policy favoring private the congressional (2d Cir.2006). Thus, 469 F.3d important enforcing suits mode of Hoffman, after we maintain that even ... Because federal statutes.” Id. we reducing to “[b]y the incentive hire such not prong that the first is satis conclude coverage of undocu- workers FLSA’s case, fied in this we need not determine discourage im- helps illegal mented aliens pari whether the in delicto doctrine is fully migration and thus consistent with is policies underlying consistent with Inn, objectives Quality of the IRCA.” FLSA, applied it may such that ever be short, In IRCA 704-05. under recovery bar that statute. express Congress’s not clear and does ' satisfy In order the first intent manifest to exclude undocumented test, Eichler prong “[t]he Bateman protection aliens from the FLSA. active, voluntary par plaintiff must be an reasons, foregoing For Hoffman ticipant activity in the unlawful that is the are clearly point on and we not bound subject the suit.” Id. at S.Ct. Quality Milan’s Consequently, follow Inn. added). “Plaintiffs who (emphasis ability unpaid wages under the recover pari are are those who truly in delicto his depend immigration does FLSA coop have the law in themselves violated Appellants argue status. (empha Id. eration with the pari doctrine still his the in delicto bars defendant.” added) Mufflers, (quoting sis Perma recovery being because in addition Life 134, 153, Corp., Inc. Int’l Parts 392 U.S. alien, applied he to work undocumented (1968)). 1981, 20 88 S.Ct. L.Ed.2d using a false for Safe Hurricane Shutters case, coop- nor Milan Security They further ar- neither Feliciano Social number. Appellants violating erated court’s refusal give a requested jury FLSA. instruction.” Pensacola Motor Sales Inc. v. E. Toyota, LLC, Shore 1211, 684 F.3d Appellants argue that recovery Milan’s (11th Cir.2012). “In refusing give should be barred because he would not requested instruction, jury abuse ‘[a]n have hired been absent his use of a false (1) discretion is committed when Security They Social number. ar- further requested instruction gue correctly that both Feliciano’s and Milan’s re- stated the (2) law, coveries should be barred because then- the instruction dealt with an issue (3) tax violations are “connected with the mat- properly jury, before the and the fail in litigation.” ter both of these give ure to the instruction prej resulted in ” arguments applied misstate the test to be udicial harm to the requesting party.’ just any under Bateman Eichler. Not (quoting Id. Transp., CSX Burchfield relationship topical causal or connection Inc., 1330, (11th 636 F.3d 1333-34 Cir. active, plaintiff 2011)). will do. “The must be an voluntary in the participant unlawful activ- ity subject that is the the suit.” Id. at Liability Individual 686, added). (emphasis 108 S.Ct. 2063 Ap- private FLSA creates a right of pellants satisfy cannot test because against any action “employer” who violates Feliciano and Milan participate did not its minimum-wage provisions. or overtime Appellants’ decision whether to them 216(b). § 29 U.S.C. The Act defines the wages in accordance with the term “employer” broadly to include “both Therefore, FLSA. the district court was for whom the employee di deny Appellants’ correct motion for rectly ‘any works as well as person acting

judgment as matter of law based directly indirectly in the interests of an pari delicto doctrine. ” employer in relation employee.’ to an Josendis v. Wall to Wall Residence Re

B. Jury Instructions (11th Inc., 1292, pairs, 662 F.3d Cir. Next, Appellants argue por- two 2011) 203(d)). (quoting 29 U.S.C. Based tions of jury the district court’s instruc- definition, on this joined broad we have require First, tions a new trial. Heidel- “overwhelming weight authority” and berger and MeCarroll contend that corporate held that “a opera officer with district court gave erroneous instructions tional corporation’s control of a covered on the issue of their individual liability. enterprise employer along is an with the Second, all Appellants argue that the dis- corporation, jointly severally and liable un trict failing court erred in to instruct the unpaid wages.” der the FLSA for Patel v. jury on the fluctuating workweek method (11th 632, Wargo, 803 F.2d 637-38 Cir. of calculating damages. 1986) (quoting Agnew, Donovan v. jury “We review instructions (1st Cir.1983)). In this de novo to determine whether mis appeal, we must determine corpo whether state the law or mislead the to the supervisors rate may other than officers prejudice of the objecting party, but the FLSA, personally liable under the given district court is wide discretion as to clarify degree we must type style wording employed in the operational control that support will indi instructions.” Bagby Goldsmith v. Elevator liability. vidual (11th o., Cir.2008) C (internal omitted). argue citations “We review and MeCarroll only for an abuse of discretion a district the district court’s in- instructions on

1310 officers, and liability to personal limit trial for to a new liability require dividual “employer” definition of First, the Act’s broad argue that the reasons. three we limitation. As the of such a instructed not admit have does court should district stated, an individ liability under the whether previously personal have jury that Second, they on depend not to officers. “does is limited ual fits that definition FLSA have court should rather on the district factors but argue that or isolated technical “any control over activity.” that the the whole instructed the circumstances lia- determining individual employee Kennel v. Perez Alvarez Sanford-Orlando employ- the (11th control over limited to bility 1150, Club, Inc., 1160 Cir. 515 F.3d posi- in his same or individuals ee-plaintiff, 2008) & v. Hodgson (quoting Griffin the district Third, they argue tion.” 235, McAllen, Inc., Brand jury that by instructing the erred court (internal Cir.1973)) (5th marks quotation can operational control occasional even omitted). case, corpora a typical In the liability. individual support operation more will exercise tion’s officers therefore control than its directors al issue only the first will consider We liability. personal susceptible more (non-officer the liability) in our review of roles are corporate usual The rec- jury instructions.3 court’s district observed, may directors always or and some not reflect ord does than operational control an instruction more ever assume proposed McCarroll Therefore, supervisor’s employee in de- over some officers. “any control preclude limited to or liability is not in itself establish termining individual title does FLSA, or indi- employee-plaintiff, liability her under control over his or Therefore, position.” refusing in his same court was correct viduals the district its discre- did not abuse contrary. district court instruct an instruction. failing give such tion Method Fluctuating 2. Workweek actually

Also, court did not the district control jury that occasional instruct issue with the dis- also take Appellants liability.4 There- individual support can the issue jury instructions on trict court’s such fore, consider whether need not we that em- requires damages. The FLSA have been erroneous. an instruction would employees for compensate their ployers not less than one hours “at a rate only officers arguing rate at regular times the and one-half liable under personally held may be 29 U.S.C. [they employed.” are] which FLSA, rely Heidelberger and McCarroll so, 207(a)(1). to do employer If the fails § corporate that “a offi holding Wargo’s employees for be liable to the it will corpora control of operational cer Id. compensation.” “unpaid overtime is an enterprise tion’s covered 216(b). Act does not define § jointly and sev corporation, along with However, in “regular rate.” employee’s unpaid under the FLSA erally liable paid who is employee of an the case 712 F.2d at Agnew, wages.” (quoting Id. fluctuating weekly salary for constant 1511). recognized personal it But while hours, has found Supreme Court officers, Wargo purport did not liability for "Liability may liability: on individual be- tion issues will be considered 3. The other two challenges if control is restricted Appellants' be found even also low in the context occasionally does not as such sufficiency the evidence. exercised significance of the existence of diminish 5, 138-39, Apr. Tr. vol. control.” Trial following such court removed the 4. The district 15, plaintiffs' proposed instruc- from sentence acceptable regular payment requirements to calculate the rate time of 29 U.S.C. 207(a)(1). dividing weekly salary by the number It exemption is not an to it.” Mo- actually Overnight of hours worked. Res., Apollo Inc., 629, Samson Missel, 572, Transp. Co. v. 316 U.S. (5th Cir.2001). tor Consequently, the fluc- (1942). 86 L.Ed. S.Ct. tuating workweek not an affir- method is known This has come to be as the “fluctu- defense; rather, employee mative “the ating workweek method.” bears burden of proving the that the em- ployer failed to properly administer decided, [it].” Depart-

After the Missel was result, (“DOL”) Id. As a we will Appel- consider promulgated ment of Labor 778.114, arguments § set- lants’ on interpretive an rule this issue. C.F.R. ting fluctuating forth meth- the workweek fluctuating the work (a) Subsection of the rule explains od. week method is not only the even the fluctuating that where the workweek calculating default method for damages the employee’s method is used to calculate employee paid weekly when an is salary. a regular pay, “[p]ayment rate of for over- fact, is conceptually it within subsumed such in time hours one-half rate addition the rule that employee broader is “[i]f pay the salary satisfies the overtime solely basis, employed salary on a weekly requirement al- because such hours have regular hourly pay, rate of which ready compensated straight been at the time half paid, computed and a must be is rate, regular salary time under the ar- by dividing salary by the number of rangement.” salary hours which the intended to is com interpretive The DOL’s rule 778.113(a). pensate.” 29 C.F.R. We inway employer “sets forth one which an previously have in deferred to DOL may lawfully em compensate nonexempt terpretation of an employee’s “regular hours; fluctuating for work ployee it is rate” of under the pay Rodriguez FLSA. specifies a remedial measure that how Inc., Grocery, Farm Stores 518 F.3d damages are to calculated court be when a (11th Cir.2008). n. 5 Conse finds that an has its breached quently, paid employee “where sole statutory obligations.” Urnikis-Negro v. basis, ly weekly salary on a the number of Servs.,

Am. Family Prop. employee’s pay hours the is intended to (7th Cir.2010). However, under Mis- compensate necessarily the number —not sel, the fluctuating may workweek method actually hours he works—is divisor.” used an employee’s regular to calculate Id. at 1269. pay rate of corresponding overtime damages in premium determining use in properly The district court under the Id. Appellants FLSA. contend jury Appellees’ structed the to calculate failing district court erred regular pay rates of the number using jury fluctuating instruct the on the work hours salaries intended to com their were calculating week method for damages instruction, pensate. Based on this this case. jury have Appellees’ could determined that compensate salaries were intended to all matter, reject an initial As we regular hours worked and calculated their argument Ap Feliciano and Milan’s accordingly. rates of The district pay application fluc pellants waived the of the jury court further instructed the tuating failing workweek method damages measure of is the differ “[t]he plead as an affirmative defense. The employee ence what the should fluctuating merely between workweek method is complying paid method over- act and “one have been under the actually “We de you paid.” find were review novo denial amounts law, matter judgment motion as a Thus, jury Appel- if the determined that necessarily apply which means that we compensate salaries were intended lees’ court.” Pen same standard as district worked, it have all hours should deter Sales, F.3d at 1226. sacola Motor already partially were mined as a matter of law is Judgment appropri for their overtime hours compensated jury ate where “a reasonable would not merely regular- rate of basis legally evidentiary have sufficient premium at half that awarded nonmoving party to find” for the on a effect, is, application of This rate. 50(a)(1). controlling R. Civ. P. issue. method. Fed fluctuating workweek Consequently, will if the “[w]e reverse actually Because the instructions point overwhelmingly facts inferences effectively given apply allowed the moving] that party, [the in favor of such method, fluctuating workweek we can- the a people reasonable could not arrive at Appellants that were preju- not conclude Foods, Ash contrary Tyson verdict.” v. by the more give specific diced refusal (11th Cir.2011) 883, Inc., 892 664 F.3d Ford instructions. See Goulah v. Motor 1275). Goldsmith, (quoting 513 F.3d at Cir.1997) (11th Co., 1478, 118 F.3d 1485 review, (“The conducting In our give district court’s re- refusal credibility do not make determina “[w]e quested is error if the instructions weigh v. tions or the evidence.” Hubbard proposed of the substance instruction was Inc., 713, Bancorp, BankAtlantic 688 F.3d instruction, by another which was covered Cir.2012). (11th Instead, 724 “we consider given.”). adopt While we would not the evidence, all and the the inferences drawn model, a and district court’s instructions as therefrom, light in the most favorable specificity preferable, we that more hold nonmoving party.” Pensacola Motor its the district court did not abuse discre- Sales, “give will 684 F.3d 1226. We give refusing Appellants’ pro- tion credence to ... that evidence supporting posed fluctuating instruction on work- that moving party is uncontradicted week method. unimpeached, least to extent that comes from wit [it] disinterested Sufficiency C. the Evidence of nesses”; however, “disregard we all will Next, Appellants argue that district moving party favorable to the evidence granted their court should have renewed required that the is not to believe.” of judgment motion a matter law or Co., Mee Indus. v. Dow Chem. 608 for a trial on alternative motion new based (11th Cir.2010) 1202, 1211 (quoting Reeves evidence, insufficiency they of the Prods., Inc., Plumbing v. Sanderson 530 evidentiary First, three raise issues. Hei- 133, 150-51, 2097, 120 U.S. S.Ct. delberger argue and McCarroll (2000)). L.Ed.2d 105 them evidence insufficient to hold indi- Second, vidually liable under the FLSA. review a district court’s “We all trial Appellants argue that the evidence was denial of motion for a new for an apply insufficient for the to refuse to of discretion.” St. Luke’s Cataract abuse Third, Inst., Sanderson, P.A. fluctuating workweek method. and Laser v. (11th Cir.2009). all n. Appellants argue that there was insuffi- F.3d granted cient evidence Feliciano’s Milan’s trials should not “[N]ew unless, minimum, support jury’s evidentiary ver- at a grounds hours dict. against great the verdict is mere- —not greater -weight supervisor’s the evidence.” ative role in ly causing the — (quoting Durango Lipphardt Id. Steak- violation. Id. Brandon, Inc., house of case, Heidelberger this and McCar- (11th Cir.2001)). roll testified each they owned about percent 22.5 of Safe Hurricane Shutters Liability Individual co-defendant, and that their Edward Heidelberger argue and McCarroll that Leiva, owned the same amount. McCar- district have granted court should roll remaining testified that shares Rule 50 the issue of motion on indi- individuals, were owned three each of First, liability vidual for two reasons. whom owned percentages smaller than they they contend that cannot be held Leiva, Heidelberger, and himself. The they personally liable because were not that Heidelberger fact and McCarroll each officers Safe Hurricane Shutters but percentage owned substantial of the cor- merely “minority shareholders at the di- poration suggests they had control above, level.”5 rector As discussed over its financial supports affairs and argument is meritless because non-officers finding personal liability. may personally be held liable under the argue and McCarroll Second, argue they FLSA. did they were in fact absentee owners who did operational not exercise sufficient control not exercise such control. be held liable personally to under the issue, In resolving FLSA. this latter we prior Our addressing opera- decisions clarify degree type must the and of opera- tional control that in have held order to support tional control that will individual FLSA, as an qualify employer under the a liability under the FLSA. supervisor “must either be involved in the day-to-day operation or have some direct recognize along We with the responsibility supervision for the of First Circuit that the ordinarily “individuals Perez, employee.” shielded personal liability are from when Alvarez 515 F.3d at they form, corporate 638). do business in a and (quoting Wargo, 803 F.2d at lightly that should not be inferred that Heidelberger rely and McCarroll this Congress disregard intended to shield language argue to that law is more Baystate in context of the FLSA.” than it really favorable to their side is. Herman, Staffing, Alt. Inc. v. First, they “any contend that con (1st Cir.1998). However, employee determining trol over an in indi FLSA contemplates at least some individu liability to vidual is limited control over the liability, al and it with is consistent Con employee-plaintiff, individuals in his gress’s impose liability upon intent to position.” that agree same We relevant corporation’s who those finan “control[ ] for purposes liability control of individual affairs the corporation cial and can cause control in employee-plain relation to the (or compensate compensate) to not to em However, tiff. such control need not be ployees accordance the FLSA.” directly. example, For proved at 678. A supervisor’s ownership Id. inter may infer such control from the exercise corporation and control est over the corporation’s general supervisory powers or the day-to-day functions are rele exercise they Thus, to this inquiry employees. vant because are indic- of control over other appeal, merely 5. There was some evidence we will he was McCarroll assume that vice-president held himself out as the of Safe shareholder and a director. Shutters, purposes Hurricane but of this nancially, McCarroll and argument Heidelberger, Heidelberger and McCarroll’s of the represents incomplete statement them Leiva met with installers tell law. company would be unable Moreover, Heidelberger them. both Next, Heidelberger McCarroll they promised McCarroll installers that they not have been in argue that could fix the so try problem would “day-to-day” operations in the volved get paid. Hei- eventually would installers they Hurricane because Safe Shutters $20,000 of own delberger even used his course, every day. there Of one were not satisfy payroll obli- company’s funds (i.e., regu “day-to-day” can be involved in lar) gations. operations on an intermittent basis. Thus, argu Heidelberger and McCarroll’s Heidelberger and McCarroll Although impor semantically. But more ment fails testified that exercised less control substantively. point it misses the tantly, above, the was than that described supervi Again, primary our concern is the required al- not to believe them. And violation, causing sor’s role FLSA undisputed that though it is Leiva exer- possible supervisor to exer it is them, control than either of cised more enough play cise control to a substantial significance does diminish causing working role in the violation while present their control. McCarroll was short, fact part-time. the time and had substantial about half only occasionally control was exercised supervisory powers in relation to instal- significance “does not diminish its Heidelberger present lers. While less Servs., existence.” Donovan Janitorial often, he exercised direct control over (5th Cir.1982).

Inc., got paid using whether installers his support individual lia Moreover, that purpose. own funds for bility, “signifi control there must be over both and McCarroll met with company’s] aspects day-to-day [the cant payroll installers to discuss issues. functions, including of em compensation facts, jury Based these a reasonable on ployees or other matters in to an relation Heidelberger could have found that and Perez, employee.” Alvarez F.3d at 515 “signifi- McCarroll exercised control over 638). at (quoting Wargo, 803 F.2d aspects company’s] day-to-day [the cant words, other while control need not be functions, including compensation of em- continuous, it both must be substantial and other to an ployees or matters relation company’s related to the FLSA obli employee.” (quoting Wargo, Id. F.2d gations. 638). at When combined with their sub- mind, principles With these we interests, ownership suggests stantial this turn to the facts this Viewed in case. Heidelberger had suf- and McCarroll light plaintiffs, most favorable to the company’s ficient control of the financial present McCarroll was at Safe Hurricane affairs com- corporation to “cause the per Shutters about two weeks month and (or not to pensate compensate) employees present was at least a few Baystate, FLSA.” accordance days per not than but more one week Therefore, jury had a 678. job month. Both visited sites to observe legally to hold sufficient basis Heidelber- installations, progress shutter and liable, ger individually and and McCarroll routinely or McCarroll distributed work great against its verdict was not installers, describing ders to the work weight of the evidence. The district court required complete day. were and company struggle denying Heidelberger When the fi- did not err in started to motion on cient Rule 50 this evidence to show the amount McCarroll’s ground. extent of that just work as matter of and reasonable inference. The burden

2. Fluctuating Workweek Method then shifts to employer to come for- Appellants argue that the district ward with precise evidence of the granted court should have their Rule 50 amount performed of work or with evi- motion on the of the fluctuat applicability negative dence to the reasonableness of ing workweek method. there the inference to be drawn from the em- was sufficient evidence for the to find ployee’s evidence. If the fails weekly salaries Safe Hurricane evidence, to produce such may court paid Feliciano and Milan were Shutters then award to the damages employee, compensate only intended to them for for though even approxi- the result hours of work. and two other ty Feliciano mate. former installers that Leiva testified 687-88, case, Id. 1187. In S.Ct. agreed weekly salary them a testimony there was sufficient regarding work, forty although hours of Milan the hours Milan regularly Feliciano and many testified that he know how did not worked to allow to approximate weekly pay hours his intended to com was they actually the hours there reason to worked in each pensate, was no believe compensation that his was structured dif they sought week which to recover circumstances, ferently. Under these we words, unpaid wages. In other there was say points cannot that the evidence over testimony sufficient “to show the amount whelmingly Appellants in favor of or that extent just of that work as a matter of jury’s against verdict the great was and reasonable Id. at inference.” Therefore, weight of the evidence. Appellants negate did not S.Ct. deny district court was Appel correct reasonableness of that inference as a mat- fluctuating lants’ Rule 50 motion law; therefore, ter the district court did method. workweek err in denying Appellants’ renewed motion for judgment as matter of law. 3. Overtime Hours say jury’s Nor can we that the verdict was argue Appellants that the dis against the great weight the evidence granted trict court should have Rule such the district court abused its dis- 50 motion evidence because the of Felici- in denying Appellants’ cretion alternative ano’s and Milan’s overtime hours in motion for a new trial. support jury’s sufficient verdict. places employee- The FLSA upon Evidentiary D. Ruling plaintiff proving “the that burden of he Appellants argue they that are entitled performed work for which he was not to a new trial the district because court properly compensated.” Anderson v. Mt. erroneously testimony by excluded Leiva Co., 686-87, Pottery Clemens 328 U.S. regarding a he conversation had with Ro- (1946). 66 S.Ct. 90 L.Ed. 1515 How Ibacache. was an lando Ibacache installer ever, if keep failed to time Safe Hurricane who repre- Shutters was records, case, as in that burden this firm sented the same law as Feliciano Specifically, relaxed. in that circumstance Milan in a related FLSA action an employee out has carried his burden against Appellants. was also a He witness if proves he per that he has fact this Allegedly, case. Ibacache told formed work for he was improper which ly compensated produces attorneys he repre- and if suffi- Leiva one of the who they failed to appeal this because fabricat- issue in both cases plaintiffs

sented motion for against Appellants. pre-verdict raise in their the overtime claims ed judgment a matter of law under Feder- cross-examination of Ibacache During 50(a). That al Rule of Civil Procedure case, Appellants’ counsel asked if the argument might have merit issue Leiva that following: “You told Mr. pre- failed to raise in Appellants all oh, say you worked attorney said let’s challenge was a to the suffi- verdict motion all get hours and we’ll these people these However, the evidence.7 ciency “[i]f big that there a say and we’ll was involved trial, duly really have been errors at violation here when there there you to, objected dealing one. That’s what told Mr. matters other wasn’t with plain- evidence, court overruled Leiva.” district sufficiency than of the hearsay objection, then Iba- counsel’s tiffs’ judg- may appeal raised on from responded, “I don’t remember. cache not been though there has ei- ment even here, I Maybe it is but don’t remember.”6 judgment motion for as a ther a renewed asked, then ‘You Appellants’ counsel law or a motion for a new trial.” matter of You don’t recall. might have said that. Wright ArthuR R. 9B Alan & Chaeles might rings a You have said That bell. Miller, and Prooedure Federal Practice something deny like You can’t it?” that. (3d 2008), at Westlaw ed. available “I I re- responded, said did not Ibacache FPP. member.” ruling excluding In challenge order to later, testified, days Leiva Three evidence, party simply must “inform[] him, did Appellants’ counsel asked “What by an offer of the court of its substance you the overtime Ibacache tell about Mr. apparent was proof, unless substance lawsuit, how started?” got 103(a)(2). from the context.” Fed.R.Evid. plaintiffs’ coun- the district court sustained definitively on the court rules “Once hearsay objection, and Leiva sel’s was party before at trial —a record —either response, Appel- permitted answer. proof need not renew ... offer confer- requested lants’ counsel sidebar appeal.” claim of preserve a error ence, Appel- that request but was denied. 103(b). Fed.R.Evid. request if their for a represent lants granted, they case, conference had been In this the substance sidebar proffered testimony have Leiva’s re- testimony would proffered obvious Leiva’s Ibacache, his conversation with garding had already from context. Ibacache its i.e., him than attor- that Ibacache told alleged been about his conver questioned against ney fabricated the overtime claims Leiva, question Appel sation and the Appellants. obviously posed lants’ counsel Leiva was conversation. No directed at same matter, an initial Feliciano and Milan

As Appellants’ court denied Appellants preserved have not doubt the district argue evidentiary ruling them to Appellants’ using entitles had been Iba- erroneous counsel might deposition impeach judgment a matter law. This be cache's him. Presum- of here,” said, "Maybe argument if Leiva’s ably, when Ibacache it is as an that testi- construed admitted, deposition transcript. referring jury would have mony he was to his had been evidentiary legally a sufficient basis to lacked However, circumstance, plaintiffs. even assum- find for the scope that our re- of ing testimony been should have admit- plain Leiva's Howard view would limited error. 1239, ted, Co., (11th argument an would be meritless such Walgreen F.3d 1243 v. 605 Cir.2010). have been re- argue would not Appellants do in the because that trial, quired it. to a court’s to believe alternative new district

1317 it hearsay for a conference because evidence.” United States v. request sidebar Acos- (11th Cir.1985). ta, 721, prof- of the already knew the substance 769 F.2d 723 Therefore, testimony. as soon as fered A declarant is considered un ruling a district court made definitive if, available as a among witness other hearsay objection, the by sustaining the declarant things, the “testifies to not re preserved appeal. was for now issue We membering subject matter.” Fed. rul- turn to our review of that substantive 804(a)(3). Appellants contend that R.Evid. ing. Ibacache unavailable because he testi often generally We have stated he fied that did not remember his conver rulings are for evidentiary that reviewed sation with Leiva. Rule See, e.g., abuse discretion. United 804(a)(3) applies only if the declarant is (11th Dortch, 1104, v. F.3d States 696 1110 “subject matter,” unable to remember the Cir.2012). However, things always are not i.e., memory if “he has no of the events to simple. evidentiary rulings often so While hearsay which his relate.” statements N. an discretion calls require exercise of Commc’ns, Jones, Miss. Inc. v. 792 F.2d review, they may also standard of (5th 1330, Cir.1986). The fact require legal and factual determinations the witness does not making remember call for Specifi different standards. statements themselves irrelevant. is cally, findings underlying factual “[t]he B. MuELLER & LAIRD C. KlRK- CHRISTOPHER [evidentiary] are clear rulings reviewed for (3d 8:112 Federal patrick, Evidence Lebowitz, error.” United States v. 676 ed.2007), available at Westlaw FEPEV. 1000, (11th Cir.2012). And F.3d identify, have Appellants failed to and we questions underlying evidentiary of law found, testimony by any have not Ibacache rulings are de novo. See reviewed United in which he claimed not to remember the (11th v. Westry, States subject matter of his alleged conversation .2008) (“[A] Cir determination of whether a Leiva, i.e., whether the overtime against penal statement is declarant’s Instead, actually claims were fabricated. subject purely question interest is a of law consistently Ibacache maintained that he review.”); novo v. to de United States cf. and the other installers worked overtime (11th Henderson, Cir. they compensat which hours for were 2005) ruling (“[B]asing evidentiary Therefore, Appellants satisfy ed. failed to an erroneous view of the law constitutes showing that Ibacache was burden se.”). per abuse discretion witness, unavailable as the district by excluding court not err did Leiva’s tes case, Appellants argue

In this hearsay. timony as testimony that Leiva’s should been have statement-against-in admitted under the Payroll Withholding E. Tax hearsay exception terest found in Federal 804(b)(3). Finally, ex Appellants Rule Evidence For that contend that granted court have ception apply, Ibacache must have been the district should 804(a). to alter or the judg unavailable as a witness under Rule their motion amend as a Federal of Civil Whether declarant unavailable ment under Rule Proce 804(a) 59(e) in order question witness under Rule is a dure to exclude amounts doing, required payroll law we review de novo. In so are withhold review the of a motion proving we note burden of taxes. ‘We denial “[t]he unavailability judgment of a witness under Rule to alter or amend under Rule 804(a) 59(e) proponent rests abuse of discretion.” with the of for Shuford trial, Co., jury a could find sufficient reasonable Prop. Nat’l & Cas. Ins.

Fid. Cir.2007). (11th 1337, 1341 to liable facts render Steve the employer meaning an within the of as in find no abuse of discretion We a I reverse and for Act. would remand Ap approach because the district court’s and respect trial with to McCarroll new satisfy the and com judgment can pellants Shutters, a grant and Safe Hurricane withholding with obligations ply with their of judgment a matter of law in favor as liability. duplicative Any incurring out Heidelberger. to they make the withholding payments Appellees’ IRS or state tax authorities on Discre- A. The District Court Abused Its satisfaction of the behalf will work toward tion It to Instruct the When Refused judgment has judgment. And once the Jury Fluctuating About the Work- satisfied, through pay in such part been week Method. part through payments in to ments and move for relief Appellees, Appellants may that the majority opinion The concludes the under Rule of judgment from Federal not abuse its discretion district court did 60(b)(5) fur ensure no Civil Procedure jury it to instruct on the when refused the Appellees. liability ther method, fluctuating I dis- workweek but give A agree. jury refusal instruction III. CONCLUSION amount an abuse of when will discretion below, AFFIRM the judgment We as “(1) correctly requested the instruction Appel- as of well the district court’s denial (2) law, dealt stated instruction post-trial motions Federal lants’ under jury, an and properly issue before the 50(b) 59(e). Rules of Procedure and Civil (3) give re- failure to instruction prejudicial request- in harm to the sulted PRYOR, in Judge, concurring Circuit party.” Inc. v. ing Pensacola Motor Sales in part dissenting part: LLC, Toyota, E. Shore majori- I concur in the resolution (11th Cir.2012). The defendants have es- ty opinion some of raised in the issues each of these tablished elements. appeal. I concur in the denial requested jury provides The instruction matter in judgment as a of law favor an accurate statement the law on Francis McCarroll Safe Hurricane fluctuating The re- workweek. defendants Shutters, Inc., under pari the in delicto quested explained instruction that sufficiency on the doctrine and based the difference between time-and-a-half the evidence. I also concur in the denial fluctuating workweek method and judgment of a as a matter of law favor method as follows: on the of individual of McCarroll issue liability employer pay the Fair The Act an its requires under Labor Standards Act. And I concur employees at a rate of at least one evidentiary resolution of the issues ad- “regular one-half times their rate” for majority opinion. dressed any time worked in one work week over hours. known as commonly This is But I from the respectfully dissent reso- for time-and-a-half “overtime” work. appeal lution of two reasons. simply employee’s “regular rate” is First, the court its discre- district abused hourly rate, those employee’s tion when it refused to instruct employees compensated by way of Second, fluctuating about the workweek. hourly rate. All overtime hours worked erred the district court when concluded that, and one- presented compensated on the evidence must one based employ- many the rate if an he regular half times hours worked. And the defen- hourly. being paid ee is dants introduced Feliciano’s of em- letter ployment, If Plaintiffs were which said that you determine that Feliciano earned salary week, the paid a then FLSA considers per not for the first 40 $800 $800 been for all paid the Plaintiffs to have hours Augustin he worked each week. rate, straight at a time hours worked Milan testified “there was a and clear halftime is owed only and additional mutual understanding between and [him] hours, for not one and one-half overtime company the [he] when would work This can demon- regular rates. many each week no matter how hours [he] you plaintiff strated as follows: If find a get worked would [he] same amount week per paid worked 50 hours pay.” Because the shutter installers $500, ($500 hourly is his rate $10.00/hr employees could not be salaried are who = -h $10/hr) his half-time rate is overtime, ineligible an agreement = $5/hr). Thus, x ($10/hr if you .5 $5 this sort a fluctuating would evidence such a worked over- plaintiff found that agreement, and majority workweek the week, would him you time one award opinion not suggest does otherwise. 10/hrs). ($5/hr x $50 give The failure to the instruction on the in- This instruction is consistent with the fluctuating prejudiced workweek method terpretive promulgated by rule the De- the defendants. The district court not partment of Labor. See 29 C.F.R. any give refused to instruction 778.114(a). rule, According to that the fluctuating the described workweek calculation of under the fluctuat- overtime method, repeatedly but instructed the ing differs from the tra- workweek method that, if as follows the employees in ditional time-and-a-half calculation two they proved that had worked more than 40 (1) ways: employ- “the rate of regular week, employees per hours would be vary ee will from week week and is owed by dividing time-and-a-half: determined the number of hours in into worked the workweek This arises Labor case under Fair salary applica- amount of the to obtain the [fjederal Act, Standards law that (2) week,” ble hourly rate for the among provides for things other “[pjayment for overtime hours at one-half payment time-and-a-half overtime in regular] [of rate addition to the pay. plaintiffs The claim that the defen- salary pay require- satisfies the overtime pay pay dants did not them the overtime requested ment.” The Id. instruction required by law. law, was a correct statement and the fact, plaintiffs, they The claimed that majority opinion suggest does other- paid straight were not overtime time wise. or, words, they only paid were other supports potential The record also they for the first 40 each hours worked application of fluctuating workweek paid week and were not all for the fluctuating method. The meth- workweek to 40 hours worked addition “[wjhere applies od there is a clear mutual hours. understanding of fixed parties Therefore, the term in this salary compensation (apart from over- case includes such overtime-includes premiums) time hours each worked straight both-such overtime and time. workweek, whatever their number.” Id. Mario Feliciano testified that his hours week, requires [A]et

varied that he each but received the week, salary same each no at a of at one- employee matter how its rate least tally application of regular rate for inconsistent with the and-a-half times method, fluctuating under week over 40 the workweek time in one the worked Second, commonly the only is known as which half-time is owed. This hours. the pay majority opinion suggests vague overtime time-and-a-half damages of instruction measure “[t]he worked. employ- the what the during rate is difference between a employee’s regular The paid have under act calculat- ee should been the is the basis for particular week you were him for that and the amounts that find actual- any pay due ing regular ly paid” satisfactorily jury rate for a week is instructed the The week. method, first by dividing the fluctuating determined about the workweek paid wages 1260, into total worked the at hours id. but that instruction neither The overtime those hours. rate jury the of the existence of the informed of that rate then would be one-and-a-half nor in- fluctuating workweek method for each hour in owing and would be jury to Be- formed the how calculate it. during of hours worked the excess jury cause the was never informed that the workweek. half-time, employees might only be owed prejudiced

the the by defendants were instructions, jury on court employed solely is the district employee If the basis, regular hourly when it weekly salary his abused its discretion refused fluctuating of on which time-and-a-half the pay jury rate instruct about the by di- paid computed is hours must be workweek method. by salary the number of hours

viding B. Not Employer Is an salary compen- is intended to which Meaning the Act. Within if an example, employee For is sate. salary at for a 40- hired majority erroneously The opinion $220.80 also week, regular his rate is an hour $5.52 concludes the evidence establishes hour. legally sufficient basis hold Heidelber- ger employer under the Act. liable majority opinion The contends that the A company Id. at director of a will 1314. adequately jury instructions instructed the be held liable as an under the meth- jury fluctuating about the workweek only operational Act if he control “ha[s] od, that contention fails for two rea- but significant aspects company’s] day- of [the First, majority opinion alleges sons. functions, to-day including compensation of properly district court instruct- “[t]he employees or other matters relation jury Appellees’ regular ed the to calculate Perez v. employee.” See Alvarez San pay using the number of hours rates Club, Inc., Kennel compen- their salaries were intended to ford-Orlando (11th Cir.2008) (internal quota sate,” Majority Opinion at but the omitted). majority tion opinion marks majority opinion quote fails to the relevant that Heidelberger concludes meets this required instruction. The instruction (1) present he: standard because time-and-a-half on award few Safe Hurricane Shutters at least a “If regular employee rate: is em- basis, days per but not more than one week solely salary ployed weekly on a his month; (2) job visited sites to observe rate of time- regular hourly pay which during progress of shutter installations paid comput- hours must be is and-a-half (3) visits; those salary by ed the number of some of met instal dividing salary com- lers the end of the life of the hours which the is intended to toward com- pensate.” That instruction fundamen- business to tell the installers pany ty would not be able to them on act without Leiva’s approval; or that (4) time; $20,000 used his own Heidelberger day-to-day prob- resolved satisfy payroll obligations. funds to lems on his short visits to the business Majority But these Opinion iso- facts, month. each Based on these I would day-to- lated do not incidents establish conclude that Heidelberger the op- “lacked day operational control of business re- necessary erational control imposi- for the quired by precedents. our liability tion of an ‘employer’ under the testimony at the installers trial See id. [Act].” in- Heidelberger establishes that not I concur in part part. dissent in I day-to-day volved in operation in concur the decision that MeCarroll and largest business. he visited two When Safe Hurricane are Shutters not entitled to job sites, Heidelberger nothing did more judgment law, as a matter of I would but than progress observe the of the installers reverse and remand for a new trial with big projects. two He did not instruct respect to MeCarroll and Safe Hurricane the installers on their work because he did grant judgment Shutters and aas matter not know how install shutters. He also law in favor of Heidelberger. could not communicate with most of the spoke “[v]ery, very installers because he Spanish,

little” and the primary language Spanish. most of the installers was

Heidelberger gave never the installers orders,

work Milan testified he

“never Heidelberger. knew” Heidelber-

ger’s participation payroll one-time in a dispute toward the end of life of America, UNITED STATES

company does establish that he exer- Plaintiff-Appellant, day-to-day cised control.

Our in decision Patel v. Wargo, (11th Cir.1986), is instructive. Like KUHLMAN, Rick A. Defendant- Heidelberger, Wargo was a director of and Appellee. principal, not majority, but stockholder in a Id. at company. 637. Heidel- Unlike No. 11-15959.

berger, Wargo president was also of that United Court of Appeals, States Nevertheless, company. Id. the district Eleventh Circuit. court found Wargo was neither re- sponsible plaintiff for the contract of the 8, 2013. March employee day-to-day nor involved business, operation of the and we affirmed. Similarly, Heidelberger

Id. had no

responsibility for the contracts with Felici-

ano or Milan and was not involved

day-to-day operations of Safe Hurricane presented

Shutters. The installers no tes-

timony were instructed to ask

questions of Heidelberger the absence Officer,

of the Chief Executive Edward

Leiva; any authori- had

Case Details

Case Name: Reinaldo Ramon Lamonica v. Safe Hurricane Shutters, Inc.

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Mar 6, 2013

Citation: 711 F.3d 1299

Docket Number: 11-15743

Court Abbreviation: 11th Cir.