          Case: 12-12011   Date Filed: 01/22/2013   Page: 1 of 9

                                                        [DO NOT PUBLISH]


           IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                   _____________________________

                            No. 12-12011
                        Non-Argument Calendar
                   _____________________________

                 D. C. Docket No. 9:11-cv-81049-DMM


RISA KAPLAN,

                                                           Plaintiff-Appellant,

versus

CODE BLUE BILLING & CODING, INC.,
LINDA M. YON,

                                                       Defendants-Appellees.


               *************************************

                   _____________________________

                            No. 12-12376
                        Non-Argument Calendar
                   _____________________________

                 D. C. Docket No. 9:11-cv-81179-DMM
            Case: 12-12011   Date Filed: 01/22/2013   Page: 2 of 9



YANNO BEVACQUA,

                                                             Plaintiff-Appellant,

versus

MAGNETIC MEDICAL MANAGEMENT, INC.,

                                                           Defendant-Appellee.


                *************************************

                     _____________________________

                              No. 12-12679
                          Non-Argument Calendar
                     _____________________________

                    D. C. Docket No. 2:11-cv-14384-DLG


LINDA O’NEILL, individually and on behalf of
all others similarly situated,

                                                             Plaintiff-Appellant,

versus

EAST FLORIDA EYE INSTITUTE, P.A.,
a Florida corporation,

                                                           Defendant-Appellee.




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                _________________________________________

                  Appeals from the United States District Court
                       for the Southern District of Florida
                _________________________________________

                                 (January 22, 2013)


Before TJOFLAT, PRYOR, and EDMONDSON, Circuit Judges.


PER CURIAM:



      In this consolidated appeal, Plaintiffs Risa Kaplan, Yanno Bevacqua, and

Linda O’Neill challenge the district court’s grant, in favor of defendants, of

summary judgment, dismissing Plaintiffs’ claims under the Fair Labor Standards

Act, 29 U.S.C. §§ 201-216 (“FLSA”). No reversible error has been shown; we

affirm.

      Plaintiffs were enrolled as students in MedVance Institute’s Medical Billing

and Coding Specialist program. To graduate, MedVance required all students to

complete an externship after finishing their other course work. Kaplan, Bevacqua,

and O’Neill completed student externships, respectively, at Code Blue Billing &

Consulting, Inc. (“Code Blue”), Magnetic Medical Management, Inc. (“MMM”),



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and East Florida Eye Institute, P.A. (“EFEI”) (collectively, “Defendants”).

Plaintiffs neither expected nor received payment for the work they performed

during their externships.

      Sometime after completing their externships, Plaintiffs each filed a

complaint for minimum wage under the FLSA for work they performed during

their externship. In essence, Plaintiffs argued that -- given the lack of formal

structure and the repetitive nature of the work they were assigned -- they received

very little educational benefit from their externships and, instead, they conferred

economic benefit on Defendants. As a result, Plaintiffs contend that they qualify

as “employees” under the FLSA and are entitled to minimum wage.

      The district court granted Defendants’ motions for summary judgment. The

district court concluded that neither Kaplan nor O’Neill were “employees” within

the meaning of the FLSA. And the court dismissed Bevacqua’s suit as barred by

the statute of limitations.

      We review a district court’s grant of summary judgment de novo; and we

view the evidence and all reasonable factual inferences in the light most favorable

to the nonmoving party. Maniccia v. Brown, 171 F.3d 1364, 1367 (11th Cir.

1999).




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      First, we conclude that Bevacqua’s suit was barred by the statute of

limitations. An action for minimum wages under the FLSA must be brought

within two years. 29 U.S.C. § 255(a). But the statute of limitations extends to

three years if the claim is one “arising out of a willful violation.” Id. That

Bevacqua filed his lawsuit more than two years -- but less than three years -- after

his cause of action accrued is undisputed.

      Bevacqua argues that the three-year statute of limitations applies in his case

because MMM violated willfully the FLSA when it assumed, without

investigation, that externs did not need to be paid. To establish a willful violation

of the FLSA for purposes of extending the limitations period, Bevacqua “must

prove by a preponderance of the evidence that [MMM] either knew that its

conduct was prohibited by the statute or showed reckless disregard about whether

it was.” See Alvarez Perez v. Sanford-Orlando Kennel Club, Inc., 515 F.3d 1150,

1162-63 (11th Cir. 2008). Where “an employer acts unreasonably but not

recklessly in determining its legal obligation under the FLSA,” we do not consider

its acts willful. Allen v. Bd. of Pub. Educ., 495 F.3d 1306, 1324 (11th Cir. 2007).

      Bevacqua failed to demonstrate that MMM’s acts triggered the three-year

statute of limitations. Bevacqua does not contend that MMM knowingly violated

the FLSA. And -- because MMM knew that Bevacqua would receive academic

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credit in exchange for his work and that completion of such an externship was

required for graduation -- we cannot say that MMM acted recklessly in assuming

that Bevacqua could be unpaid. Thus, Bevacqua’s complaint was subject to the

two-year statute of limitations and was dismissed properly as time-barred.

       On appeal, Kaplan and O’Neill argue that the district court erred in

concluding that they were not “employees” under the FLSA. Whether a person is

an “employee” within the meaning of the FLSA1 is a question of law that we

review de novo. Villareal v. Woodman, 113 F.3d 202, 205 (11th Cir. 1997).

       In determining whether an employer-employee relationship exists under the

FLSA, we must consider the “economic realities” of the relationship, including

whether a person’s work confers an economic benefit on the entity for whom they

are working. See Donovan v. New Floridian Hotel, Inc., 676 F.2d 468, 470 (11th

Cir. 1982). But, when a person works for his own advantage or personal purpose -

- particularly when his work provides no “immediate advantage” for his alleged

“employer” -- he is not an “employee” under the FLSA. See Walling v. Portland

Terminal Co., 67 S.Ct. 639, 641-42 (1947) (explaining that the FLSA’s broad

definition of “employee” “cannot be interpreted so as to make a person whose


   1
    The FLSA defines “employee” as “any individual employed by an employer.” See 29 U.S.C.
§ 203(e)(1). And the phrase “to employ” is defined as “to suffer or permit to work.” 29 U.S.C. §
203(g).

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work serves only his own interest an employee of another person who gives him

aid and instruction.”).

      Although Kaplan and O’Neill argue that their externship experiences were

of little educational benefit, they did in fact engage in hands-on work for their

formal degree program. Kaplan and O’Neill also received academic credit for

their work and, by completing an externship, were eligible to earn their degrees.

      Kaplan and O’Neill argue that, because they were performing tasks for

Defendants’ businesses, Defendants benefitted economically from their work. The

undisputed evidence, however, demonstrates that Defendants’ staff spent time --

time away from their own regular duties -- training Plaintiffs and supervising and

reviewing Plaintiffs’ work. Even viewing the evidence in the light most favorable

to Plaintiffs, Plaintiffs caused Defendants’ businesses to run less efficiently and

caused at least some duplication of effort. Defendants received little if any

economic benefit from Plaintiffs’ work. Thus, under the “economic realities” test,

Plaintiffs were not “employees” within the meaning of the FLSA. See New

Floridian Hotel, Inc., 676 F.2d at 470.

      This conclusion is also supported by guidance from the Department of

Labor’s Wage and Hour Administrator. The Administrator has identified six

factors -- derived from the Supreme Court’s decision in Portland Terminal --

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pertinent to determining whether a trainee qualifies as an employee under the

FLSA.2 “The rulings, interpretations and opinions of the Administrator under [the

FLSA], while not controlling upon courts by reason of their authority, do

constitute a body of experience and informed judgment to which courts and

litigants may properly resort for guidance.” Dade Cnty. v. Alvarez, 124 F.3d

1380, 1385 (11th Cir. 1997) (citing Skidmore v. Swift & Co., 65 S.Ct. 161, 164

(1944)).

       The externship programs at Code Blue and EFEI satisfy all six of the

Administrator’s criteria. The training provided was similar to that which would be

given in school and was related to Plaintiffs’ course of study. The training

benefitted Plaintiffs, who received academic credit for their work and who


  2
   Under the Administrator’s test, a trainee is not an “employee” if these six factors apply:
       (1) the training, even though it includes actual operation of the facilities of the
       employer, is similar to that which would be given in a vocational school;
       (2) the training is for the benefit of the trainees;
       (3) the trainees do not displace regular employees, but work under close supervision;
       (4) the employer that provides the training derives no immediate advantage from the
       activities of the trainees and on occasion his operations may actually be impeded;
       (5) the trainees are not necessarily entitled to a job at the completion of the training
       period; and,
       (6) the employer and the trainees understand that the trainees are not entitled to
       wages for the time spent in training.
Wage & Hour Manual (BNA) 91:416 (1975); see also Donovan v. Am. Airlines, Inc., 686 F.2d 267,
273 n.7 (5th Cir. 1982).

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satisfied a precondition of graduation. Both Kaplan and O’Neill were supervised

closely and did not displace Defendants’ regular employees. Defendants received

no immediate advantage from Plaintiffs’ work and, at times, were impeded by their

efforts to help train and supervise Plaintiffs. And both Kaplan and O’Neill admit

that they were unentitled to a job after their externships and that they understood

that the externship would be unpaid.

      Because no genuine issue of material fact exists, we affirm the district

court’s grant of summary judgment in favor of Defendants.

      AFFIRMED.




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