[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-15270
JUNE 10, 2005
________________________ THOMAS K. KAHN
CLERK
D.C. Docket No. 02-23207-CV-SH
SERGIO POSADA,
Plaintiff-Appellant,
versus
JAMES CELLO, INC.,
JAMES PANICELLO,
Defendants-Appellees.
__________________________
Appeal from the United States District Court for the
Southern District of Florida
_________________________
(June 10, 2005)
Before ANDERSON, BIRCH and BARKETT, Circuit Judges.
PER CURIAM:
Sergio Posada appeals the district court’s order granting summary judgment
in favor of James Cello, Inc. (“Cello”) and James Panicello (“Panicello”) in his
lawsuit alleging violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C.
§ 201, et seq., and retaliatory discharge pursuant to Florida Statute (“FS”)
§ 440.205. Posada alleges on appeal that the district court erred in granting
summary judgment as to each of his claims.
In the district court, Cello presented copies of the fronts of time cards
purporting to show that Posada worked for the company from June 2001 until May
2002. James Panicello testified consistently with the time cards and stated that
Posada never worked overtime for Cello. He testified that in May 2002 the
company learned that Posada had provided a false social security card, and that
Posada left Cello and did not return to work after being confronted with the issue.
Panicello was unaware that Posada was injured on the job.
Posada and his supervisor, Elias Tobchi, each testified that Posada worked
overtime hours for which he either was not compensated or was not compensated
at an overtime rate. They also both testified that Posada’s overtime hours were
recorded on the backs of the time cards,1 and that Posada worked at Cello until
August or September of 2002, but was paid “under the table” after May 2002.
They testified that Posada injured his hand on the job in September 2002, and that
1
The original time cards had been misplaced by Cello until subsequent to the
summary judgment hearing, and they were not considered by the district court. The original time
cards are not present with the record on appeal.
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he informed Cello of the injury and asked for medical treatment. Finally, Posada
and Tobchi testified that Cello terminated Posada’s employment several weeks
after the injury.
I. Fair Labor Standards Act Claim
Posada argues that the district court erred by finding that he produced
insufficient evidence to support his claim for overtime compensation. He cites the
following as evidence sufficient to survive a motion for summary judgment on this
claim: (1) the copies of the time cards did not reflect the overtime hours that
Posada and Tobchi testified were recorded on the back; and (2) Posada and Tobchi
testified that Posada worked overtime hours for which he was sometimes paid cash
at a rate of straight pay, and for which he was sometimes not paid.
We review “de novo a district court’s grant of summary judgment, applying
the same legal standards as the district court.” Chapman v. AI Transp., 229 F.3d
1012, 1023 (11th Cir. 2000) (en banc). A court shall grant summary judgment
when the evidence before it shows “that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.” Fed.R.Civ.P. 56(c). Rule 56 mandates the entry of summary judgment,
upon motion, against a party who fails to make a showing sufficient to establish an
element essential to his case on which he bears the burden of proof at trial.
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Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265
(1986). “In making this determination, the court must view all evidence and make
all reasonable inferences in favor of the party opposing summary judgment.”
Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995). In evaluating a
motion for summary judgment, the judge’s role is not to weigh the evidence or to
assess credibility, but to determine whether there is a genuine issue for trial.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251,106 S.Ct. 2505, 2511, 91
L.Ed.2d 202 (1986). “Sufficient” evidence is that which is more than “merely
colorable” and is “significantly probative.” Liberty Lobby, 477 U.S. at 250-51,
106 S.Ct. at 2511. The FSLA requires that employers compensate covered
employees for hours worked in excess of forty per week at one and one half times
their regular pay rate. 29 U.S.C. § 207(a)(1).
In granting the motion for summary judgment, the district court relied upon
Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687, 66 S.Ct. 1187, 1192, 90
L.Ed. 1515 (1946). In that case, the Supreme Court held that the employee bears
the initial burden to show the amount of hours worked, which is most easily met
by securing the production of the employer’s records. Mt. Clemens Pottery Co.,
328 U.S. at 687-88. If the employer has not kept adequate time records, the
employee must either offer convincing substitutes or otherwise prove that he has
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in fact performed work for which he was improperly compensated, such as by
producing sufficient evidence of the amount and extent of that work as a matter of
just and reasonable inference. Id.
In the context of summary judgment, the district court’s finding that the
records were accurate, as a matter of law, is contradicted by the record. Posada
and Tobchi’s testimony constituted evidence sufficient to raise a factual issue as to
whether Posada actually worked overtime hours for which he was not properly
compensated. The requirement of Rule 56 to produce evidence sufficient to create
a genuine issue of material fact was therefore met. Accordingly, we vacate and
remand as to the FLSA claim.
II. Florida Retaliation Claim
Posada argues on appeal that the temporal proximity between his request for
worker’s compensation benefits and the alleged termination of his employment
established a prima facie case. He argues that the district court improperly applied
FS § 440.205, and that Tobchi’s and his testimony adequately supported his claim
to overcome a grant of summary judgment.
Florida Statute § 440.205 provides that: “No employer shall discharge,
threaten to discharge, intimidate, or coerce any employee by reason of such
employee's valid claim for compensation or attempt to claim compensation under
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the Workers' Compensation Law.” F.S.A. § 440.25. The express terms of the
statute provide that claiming or attempting to claim worker’s compensation
benefits constitutes a protected activity. F.S.A.§ 440.25; see Clover v. Total
System Services, Inc., 176 F.3d 1346 (11th Cir. 1999).
In an retaliatory discharge context, a plaintiff may use a showing of “close”
temporal proximity between the protected expression and the adverse employment
action to establish causation. Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir.
2004)(reviewing temporal proximity in the context of a retaliation claim brought
pursuant to the Americans with Disabilities Act of 1990, § 503(a), 42 U.S.C.A. §
12203(a)). We have held that a period of as much as one month between the
protected expression and the adverse action is not too protracted to establish a
prima facie claim of retaliation. Higdon, 393 F.3d. at 1220.
Posada presented testimony that, while employed by Cello, he requested
worker’s compensation benefits for an on-the-job injury that occurred on or about
September 16, 2002. He also presented testimony that his employment was
terminated in late September or early October 2002 after he requested worker’s
compensation benefits. This testimony was a basis upon which a jury might find
that Cello was aware of his injury, and that it discharged him based, in whole or in
part, upon his request for worker’s compensation benefits. The record reflects
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other contradictory facts: that Cello later denied employing Posada after May
2002; that it paid him cash upon notification of his injury but otherwise declined
to provide him with the name of its worker’s compensation physician; and that one
of its employees (Tobchi) suggested that Posada misrepresent the nature of his
injury to medical authorities, ostensibly for reasons related to Posada’s inaccurate
social security number.
Upon review of the record, we find dispute as to the circumstances of
Posada’s termination such that summary judgment on this claim was
inappropriate. Accordingly, we vacate and remand the district court’s grant of
summary judgment as to the retaliation claim.
VACATED AND REMANDED.2
2
Cello’s request for sanctions is denied. Posada’s request for oral argument is
denied.
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