Diego v. Victory Lab, Inc.

282 F.Supp.3d 1275

Nabor DIEGO, and other similarly situated individuals, Plaintiff,

v.VICTORY LAB, INC., Defendant.

Case Number: 17–20063–CIV–MORENO

United States District Court, S.D. Florida, Miami Division.

Signed October 12, 2017

Entered October 13, 2017

Anthony Maximillien Georges–Pierre, Rainier Regueiro, Remer & Georges–Pierre, PLLC, Miami, FL, for Plaintiff.

Jacob Karl Auerbach, Coral Springs, FL, for Defendant.

ORDER DENYING DEFENDANT'S MOTION TO STRIKE AND GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

FEDERICO A. MORENO, UNITED STATES DISTRICT JUDGE

This case is a two-count employment action by Nabor Diego against Victory Lab, Inc. arising from a six-week period of work between July 28 and September 8, 2016. Diego alleges: (1) wage and hour violations of the Fair Labor Standards Act, and (2) retaliation under Florida's Private Whistleblower Act. This cause comes before the Court upon Victory Lab's motion to strike portions of Diego's declaration testimony and Victory Lab's motion for summary judgment. Victory Lab argues that Diego was not an employee, and is therefore not entitled to the protections afforded by either statute. Additionally, it argues that the whistleblower claim fails because Diego did not engage in protected activity and, even if he did, Victory Lab was not aware of it before Diego was terminated. The Court has reviewed the motions, responses, and replies. Additionally, the parties raised some of their briefed arguments at oral argument on August 18, 2017. As explained below, Victory Lab's motion to strike is DENIED . Further, the Court finds that Diego was not an employee of Victory Lab under any applicable statute. Accordingly, Victory Lab's motion for summary judgment is GRANTED .

I. BACKGROUND

Victory Lab provides campaign services by engaging political canvassers to survey voters and hand out information regarding elections. The canvassers knock on doors to identify supporters, persuade the undecided, and pass out pamphlets on particular candidates. In 2016, Victory Lab contracted with the Florida Republican Senatorial Campaign Committee—a Political Action Committee—during the election campaign of former Senator Miguel Díaz de la Portilla and the re-election campaign of Senator Anitere Flores. The contractual engagement was for 17 weeks, ending after the election on November 8. Diego worked as a canvasser for Victory Lab from July 28 to September 8—approximately six weeks. During this time, around 80 canvassers were working for Victory Lab.

There are no special skills, training, or experience required to be a canvasser. Upon agreeing to be a canvasser, each individual received a packet which included the following: (1) an independent contractor agreement; (2) a code of ethics; (3) a confidentiality agreement; (4) a dress code; and (5) a W–9 Form to report payments on a 1099 Form for tax purposes. A canvasser's failure to agree to the various policies could result in termination and inclusion on Victory Lab's "do not hire" list. However, Diego never signed and returned any of the documents. When Diego was hired, he believed his last day of work would be Election Day, even though the Canvasser Questionnaire he completed during the hiring process included a reference to "future projects."

Graciela Montenegro served as a Victory Lab regional manager to oversee the canvassers and provide them with limited training,¹ technical assistance, and materials to distribute to the voters, such as door hangers, flyers, registration forms, name tags, notepads, pens, and paper. The Political Action Committee provided many of the materials and paid Victory Lab based on the number of doors the canvassers knocked on per week.

There was no set schedule for the canvassers; rather they were free to work as much or as little as they chose. Montenegro texted canvassers the location of the canvassing area each day, allowing each canvasser, including Diego, to decide whether he or she wanted to work that day. Canvassers responded by text if they wanted to work, but were not required to respond if they chose not to work on any given day. Canvassers that chose to work met Montenegro at a specified location, where she outlined that day's canvassing area that had been provided by the Political Action Committee. The canvassers then spent the day driving, knocking on doors, talking to voters, handing out pamphlets, and keeping detailed records of what occurred at each house, such as whether anyone answered the door, and the outcome of the solicitation attempt. Victory Lab used a GPS tracking system to monitor hours and work performed by each canvasser, requiring each canvasser to own either an iPhone or Android, and to download a software application which recorded the time, date, and location of each voter interaction. Canvassers received no benefits. They earned $15 per hour and later $16 per hour, but this increased to $19 per hour if driving other canvassers. Drivers were required to use their own vehicles and pay for their own gas. Diego sometimes served as the driver. During the time Diego worked for Victory Lab, he did not have time to work any other jobs, but did occasionally drive for Uber late at night.

Diego encountered a few problems during his brief time with Victory Lab. Female canvassers complained that Diego's wife called and texted them because she was jealous that Diego was canvassing with other women. Then, on August 19, Diego arrived late on a day he was designated to drive, and another canvasser had been asked to drive in his place. Diego turned in his nametag, told Montenegro that he quit, and left for the day. However, after the August 19 incident, Diego and his wife texted Montenegro and asked if Diego could continue canvassing because they needed the money. Montenegro agreed to have Diego return to work on August 30. After Diego resumed canvassing, Montenegro again began receiving complaints from canvassers that Diego's wife was calling about Diego and his whereabouts.² Further, canvassers also complained that Diego acted inappropriately with several female canvassers.

Sometime between August 19 and August 30, Diego visited former Senator de la Portilla's office. Diego claims that he informed an office assistant that Victory Lab was hiring undocumented workers as canvassers, and that the assistant agreed to pass the message along to the former Senator. Diego describes his conversation as "civil." But, Montenegro testified that the former Senator's office called to tell her that Diego had visited and "began making a scene." There is no indication in the record that the former Senator's office ever told Montenegro or anybody else that Diego had accused Victory Lab of hiring undocumented workers.

On September 8, Montenegro and her assistant met with Diego at a Starbucks. They asked Diego whether he had contacted the former Senator's office, which Diego denied. Montenegro then terminated Diego's contract with Victory Lab because of: (1) his refusal to tell the truth; (2) his improper contact with the former Senator's office; and (3) other canvassers' complaints about his and his wife's behavior. Diego claims that it was clear to Montenegro during the termination meeting that he had reported Victory Lab's hiring of undocumented workers to the former Senator's office. However, Victory Lab claims that it only knew Diego had "caused a scene" at the office, with no other details. After Diego was fired, he threatened to: (1) report that Victory Lab was doing something illegal; (2) make the former Senator look bad by alleging that the campaign used illegal canvassers; (3) get Montenegro fired; and (4) go to the "labor department."

II. LEGAL STANDARD

Summary judgment is authorized where there is no genuine issue of material fact. Fed. R. Civ. P. 56(a). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). The nonmoving party may not simply rest upon mere allegations or denials of the pleadings, but must establish the essential elements of its case on which it will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The nonmovant must present more than a scintilla of evidence in support of its position. A jury must be reasonably able to find for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In deciding a summary judgment motion, the Court must view the facts in the light most favorable to the nonmoving party. Davis v. Williams, 451 F.3d 759, 763 (11th Cir. 2006).

III. ANALYSIS

A. Motion to Strike

Diego answered interrogatories on February 20, 2017 and was deposed on March 23. On April 14, he submitted a sworn declaration in support of his opposition to Victory Lab's motion for summary judgment. Victory Lab moves to strike portions of the declaration, arguing that some of Diego's statements are self-serving conclusions that contradict his earlier deposition and interrogatory testimony. Diego argues that there is no actual conflict between the testimonies. The Court agrees with Diego.

Victory Lab objects to three statements in Diego's declaration. First, Diego states, "[o]n the first day I sta[r]ted with defendant I was given training by [a] supervisor so that I would know how to perform my duties as a canvasser." Victory Lab argues that this contradicts his deposition testimony that states, "[m]any times when I first started to work there they never taught me how to do my job." Victory Lab contends that Diego's later statement is an effort to establish a disputed fact as to whether he was an employee or an independent contractor. But, taken in context, these statements do not conflict. Diego's deposition statement relates only to his knowledge of using the GPS tracking system. Diego may have been trained by a supervisor on his first day, but not...