Yenisey Perez v. Anastasia M. Garcia, P.A. , 701 F. App'x 938 ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-10344
Non-Argument Calendar
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D.C. Docket No. 1:15-cv-20615-JJO
YENISEY PEREZ,
CINTIA CINI,
and all others similarly situated under
29 U.S.C. 216(b),
Plaintiffs - Appellants,
versus
ANASTASIA M. GARCIA, P.A.,
ANASTASIA M. GARCIA,
Defendants - Appellees.
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Appeal from the United States District Court
for the Southern District of Florida
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(July 26, 2017)
Before HULL, WILSON, and DUBINA Circuit Judges.
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PER CURIAM:
Appellants Yenisey Perez (“Perez”) and Cintia Cini (“Cini”) brought
retaliation claims under the Fair Labor Standards Act (“FLSA”) against Appellees
Anastasia M. Garcia P.A. and Anastasia Garcia (collectively “Garcia”), arguing
that they were constructively discharged because they complained about not
receiving overtime pay. The district court 1 granted summary judgment in favor of
Garcia holding that Perez and Cini failed to produce record evidence
demonstrating an adverse employment action, or causation between the adverse
employment action and Perez and Cini’s protected activities. After reviewing the
record, and reading the parties’ briefs, we affirm the grant of summary judgment in
favor of Garcia.
I. BACKGROUND
Garcia owns and operates a law firm in Miami, Florida. Perez worked as a
secretary at the firm for approximately five years. Cini worked as a secretary at
the firm for approximately one year. According to Perez and Cini working for
Garcia was turbulent. Perez testified that Garcia “was always going on different
rampages,” “was an exaggerated person … very aggressive … her mood swings
would switch,” and that Perez “was always afraid to complain to her” because of
1
The parties consented to a magistrate judge conducting all proceedings in this case; see
also 28 U.S.C. § 636 et. seq.
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Garcia’s demeanor. The use of expletives and bad language was commonplace.
Cini testified that Garcia was “crazy” and “a very bipolar person.”
On February 4, 2015, Garcia sent two emails to her associate Frank
Pumarejo (“Pumarejo”). The first email stated:
[G]reat. I am done. I am talking to both of them tomorrow and if they don’t
f**cking like it, they can f**cking leave. I am just warning you. This is
f**cking bull s**t. I’m tired of working this hard with laziness around me.
I don’t trust anyting [sic] I told either one them today got done correctly.
Cintia, at least tries to correct her mistakes. I feel like yenny [sic] is daring
me to fire her and she may get her wish. But, I will detail all the reasons
why because I am not paying unemployment for her either. I’m sick of this
f**cking s**t. I have been here before, several times.
The second email stated:
[A]side from the long office email neither responded to, I sent 5 emails to
yenny [sic] and 3 to cintia [sic] and not one response, despite me asking during
the day. The level of disrespect I feel in this office is making me sick. They
are both gone tomorrow. But I need to find someone to answer the phone. . . . I
am going to fire them both after the bills are done. My cousin’s partner has a
[sic] employment staffing agency. I am going to talk to him. This is f**cked
up with the upcoming move, but I can’t take this. I printed all of the emails out
and this was the straw that broke the camels [sic] back.
I have called yenny [sic] three times after she left and she doesn’t bother
answering. I use to put up with her s**t because I considered that she answers
if I call her after hours and all that s**t, but now she doesn’t pick up the
f**cking phone. To stay on the cell phone today, in my face, as if I am some
f**cking idiot just went too f**cking far.
I’m sorry because it will affect you for a few days, but I will find someone. I
have to change all of my passwords and all that s**t, but I will do that in the
next couple of days.
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Both Perez and Cini had access to Garcia’s email, and Perez testified that she
read both of these emails.
On February 5, 2015, Perez sent an email to Garcia stating: “During the five
years of employment for you I have worked many hours of overtime. I kindly
request to be compensated for such hours.” Perez claims she had complained to
Garcia about overtime prior to the February 5th email; however, the record shows
that Perez had only told Garcia she could no longer work past 5:40PM due to
childcare issues.
On February 9, 2015, Garcia received an email stating that Perez and Cini
had obtained counsel to recover overtime pay pursuant to the FLSA. On February
13, 2015, both Perez and Cini resigned. Between February 9th and February 13th,
Perez attended work for five days, Cini attended work for two. During this time
period Perez and Cini testified that Garcia became “overtly” hostile to them, called
them derogatory names, changed the office locks, restricted cellular access to
emails, password protected the office computers so that Perez and Cini would have
to request access from Pumarejo, positioned temporary employees to monitor
Perez and Cini’s work, and sent negative employment references to other
attorneys.
Subsequently, Perez and Cini brought suit against Garcia alleging overtime
wage violations and retaliation under the FLSA. The district court bifurcated the
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trial–allowing the overtime wage violation claim to proceed to trial. The
retaliation claim was disposed of on summary judgment. Believing they were
entitled to a jury trial on the retaliation claim, Perez and Cini perfected this appeal.
At issue is whether the district court properly granted Garcia’s motion for
summary judgment.
II. STANDARD OF REVIEW
We review an order granting summary judgment de novo. See Wolf v. Coca-
Cola Co., 200 F.3d 1337, 1339 (11th Cir. 2000). “We will affirm the summary
judgment for the moving party if, viewing the evidence in the light most favorable
to the non-moving party, there is no genuine issue of material fact.” Id. at 1339-
40.
III. ANALYSIS
To successfully put forth a prima facie case of retaliation under the FLSA a
plaintiff must demonstrate (1) she engaged in statutorily protected activity; (2) she
subsequently suffered an adverse employment action; and (3) there is a causal
connection between the employee’s protected activity and the adverse action. See
Wolf, 200 F.3d at 1342-43. “In demonstrating causation, the plaintiff must prove
that the adverse action would not have been taken ‘but for’ the assertion of FLSA
rights.” Id. at 1343.
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To begin with, the FLSA does not require “good” behavior on the part of an
employer. Additionally, federal law does not guarantee employees a stress-free
working environment. See Hipp v. Liberty Nat. Life Ins. Co., 252 F.3d 1208,
1233–34 (11th Cir. 2001). “We are not a ‘super-personnel department’ assessing
the prudence of routine employment decisions, ‘no matter how medieval,’ ‘high-
handed,’ or ‘mistaken.’ ” Flowers v. Troup Cty., Ga., Sch. Dist., 803 F.3d 1327,
1337–38 (11th Cir. 2015), cert. denied sub nom., Flowers v. Troup Cty., Georgia,
Sch. Dist., 136 S. Ct. 2510 (2016) (quoting Alvarez v. Royal Atl. Developers, Inc.,
610 F.3d 1253, 1266 (11th Cir.2010)). Indeed, as we have held in similar contexts,
“employers may terminate an employee for a good or bad reason without violating
federal law.” Id. at 1338 (quotation omitted). Thus, to succeed plaintiffs must
demonstrate that they suffered an adverse employment action because they
engaged in activity protected under the FLSA.
Here, it is undisputed that Perez’s February 5th email requesting overtime,
and Perez and Cini’s Feburary 9th email regarding their obtaining counsel to
pursue overtime claims constitutes protected activity under the FLSA. Perez
argues that she engaged in protected activity prior to February 5th when she told
Garcia she could no longer work past 5:40PM; however, as the district court
correctly found, such conversations–particularly because they centered on
childcare concerns–were not enough to put Garcia on notice that Perez was making
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an overtime complaint. See Kasten v. Saint-Gobain Performance Plastics Corp.,
563 U.S. 1, 14, 131 S. Ct. 1325, 1334 (2011) (“[T]he phrase ‘filed any complaint’
contemplates some degree of formality, certainly to the point where the recipient
has been given fair notice that a grievance has been lodged and does, or should,
reasonably understand the matter as part of its business concerns.”).
Furthermore, it is dubious that Perez and Cini were subject to adverse
employment actions. Here, Perez and Cini claim they were constructively
discharged in retaliation for the filing of the FLSA complaint. However, “[b]efore
finding a constructive discharge, this court has traditionally required a high degree
of deterioration in an employee’s working conditions, approaching the level of
intolerable.” Hill v. Winn-Dixie Stores, Inc., 934 F.2d 1518, 1527 (11th Cir. 1991)
(quotation omitted).
As the district court aptly noted, it is questionable that such pervasive
conduct could occur in the short period of time between the protected activity and
Perez and Cini’s resignations. See Hipp, 252 F.3d at 1231. Moreover, there is
little evidence Perez and Cini suffered harm from Garcia’s alleged conduct.
However, we need not reach this issue because Perez and Cini cannot demonstrate
causation between their protected activity and the alleged adverse actions they
suffered.
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As discussed, there must be ‘but for’ causation between the suffered adverse
employment action and the protected activity. Here, Garcia’s February 4, 2015,
emails–sent one day before Perez engaged in protected activity–contemplates
engaging in precisely the conduct Perez and Cini now claim is retaliatory.
Specifically, Garcia stated she no longer trusted Perez and Cini, and that she
needed to change the passwords. Garcia’s decisions to change the office locks,
restrict access to email, password protect the computers, and hire temporary
assistants to monitor Perez and Cini are consistent with the February 4th emails.
Additionally, Perez and Cini both testified that, throughout their employment,
Garcia was often hostile or acted “crazy,” and frequently used expletives. Garcia’s
use of derogatory language, screaming, cursing, and alleged violence after
receiving notice of Perez and Cini’s intention to seek overtime pay is merely a
continuation of her behavior prior to the protected activity. In short, because “at
minimum [a plaintiff] must show that the adverse act followed the protected
conduct,” see Griffin v. GTE Fla., Inc., 182 F.3d 1279, 1284 (11th Cir.1999), Perez
and Cini cannot show causation and therefore their retaliation claims fail.
IV. CONCLUSION
Based on the foregoing discussion, we affirm the district court’s order
granting summary judgment in favor of Garcia.
AFFIRMED.
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