              Case: 12-15324     Date Filed: 07/08/2013   Page: 1 of 8


                                                             [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 12-15324
                             Non-Argument Calendar
                           ________________________

                      D.C. Docket No. 1:09-cv-22185-WMH



MARIUS ARILUS,


                                                               Plaintiff - Appellant,

DONAUS JEAN FRANCOIS,
OLIBERTEAU COLIN,
and other similarly situated individuals
                                                                          Plaintiffs,

                                           versus

JOSEPH A. DIEMMANUELE, JR., INC.,
A Florida Corporation,
JOSEPH A. DIEMMANUELE, JR.,
Individually,
GARDENS OF EDEN NURSERY, LLC,

                                                            Defendants - Appellees.
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                           ________________________

                    Appeal from the United States District Court
                        for the Southern District of Florida
                          ________________________

                                    (July 8, 2013)

Before CARNES, WILSON, and ANDERSON, Circuit Judges.

PER CURIAM:

      Marius Arilus appeals the district court’s grant of summary judgment in

favor of his employers on his claim under the Fair Labor Standards Act. He

contends that there are genuine issues of material fact about whether his

employment was covered by the Act.

                                          I.

      Before his termination in October 2008, Arilus worked for Joseph A.

DiEmmanuele, Jr. (JAD) Inc., a lawn maintenance service, and Gardens of Eden

Nursery, LLC, a tree nursery. Both companies are owned by Joseph A.

DiEmmanuele, Jr. On July 23, 2009, Arilus, along with two other plaintiffs who

have since settled their claims, filed an action seeking relief under the Fair Labor

Standards Act for unpaid overtime wages.

      After discovery the employers filed a motion for summary judgment, which

the district court granted. The court assumed, without deciding, that JAD Inc. and

Gardens of Eden Nursery were joint employers. The court then concluded that the


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employers did not have to comply with the Fair Labor Standards Act’s

requirements because their combined annual sales were less than $500,000 during

the relevant years.

                                         II.

      We review de novo a district court’s grant of summary judgment, viewing

all evidence and drawing all reasonable inferences in favor of the nonmoving

party. Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1314

(11th Cir. 2011). Summary judgment is proper only when there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of

law. Id.

      The Fair Labor Standards Act requires employers to pay their employees

time and a half for all the work they do over forty hours a week. See 29 U.S.C. §

207(a)(1). “Generally, employees may only recover up to two years of back pay

under the FLSA’s statute of limitations.” Rodriguez v. Farm Stores Grocery, Inc.,

518 F.3d 1259, 1262 (11th Cir. 2008) (citing 29 U.S.C. § 255(a)). Arilus filed this

lawsuit on July 23, 2009, and seeks unpaid overtime wages from July 23, 2007

until October 2008, the date on which he was terminated.

      To be entitled to the Act’s protections, however, Arilus must first show that

he is covered by the Act. Josendis, 662 F.3d at 1298. There are two types of

coverage: enterprise and individual. Id. To establish enterprise coverage, an


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employee must show that his employer (1) is engaged in interstate commerce, and

(2) “is an enterprise whose annual gross volume of sales made or business done is

not less than $500,000.” 29 U.S.C. § 203(s)(1)(A)(i)–(ii). 1

        To decide whether JAD Inc. and Gardens of Eden Nursery had a combined

“gross volume of sales made or business done” that was less than $500,000, the

district court relied on the employers’ 2007 and 2008 tax returns. Those returns

showed that the employers’ total gross receipts were $430,439 for 2007 and

$364,165 for 2008.

        Arilus contends that the district court erred in relying on the employers’ tax

returns because those returns were “fraudulent.” Arilus points out that Joseph

DiEmmanuele, Jr. testified in his deposition that when Arilus and the two other

plaintiffs worked more than 45 hours per week, he would comply with their

request to be paid in cash for the extra hours worked, and those payments were not

reported on the employees’ W-2 statements. DiEmmanuele noted, however, that

those cash payments happened “very seldom,” and would only be for “an hour or

two.”

        Arilus argues that because DiEmmanuele admitted that the W-2 statements

for 2007 and 2008 were not accurate, there is a genuine issue of material fact about

whether the employers’ gross sales or business done was less than $500,000 for

        1
         The district court concluded that Arilus could not establish individual coverage, and
Arilus has not challenged that ruling on appeal.
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those years. We disagree. As the district court noted, even if the employers failed

to report a few cash payments on the employees’ W-2 statements, that only affects

the expenses reflected in the employers’ tax returns. It does not affect the amount

of gross receipts that were reported in those returns. And we look to gross

receipts—not expenses—to determine the “annual gross volume of sales made or

business done” in the year.

      Arilus also contends that there is a genuine issue of material fact about “the

amount of times and to whom [the employers] made wage payments in cash.”

Arilus and the two other plaintiffs testified in deposition that on several occasions,

they saw the employers paying cash wages to seven or eight illegal immigrants,

although they did not specify when those payments were made. Arilus then infers

that the wages he allegedly saw being paid to illegal workers must have come from

customers who paid in cash. And he then infers that the cash received from

customers must not have been reported on the 2007 and 2008 tax returns. From

that string of inferences, Arilus concludes that the employers’ tax returns

underreported the gross receipts for 2007 and 2008. We agree with the district

court that even viewing the evidence in a light most favorable to Arilus, he has

failed to show a genuine issue of material fact. Evidence of certain cash payments

being made to employees at unspecified times is not enough to allow a jury to infer

that the employers underreported the gross receipts on their tax returns by nearly


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$70,000 in 2007 and $136,000 in 2008. See Josendis, 662 F.3d at 1318 (“At the

summary judgment stage, such ‘evidence,’ consisting of one speculative inference

heaped upon another, [is] entirely insufficient.”).

         Arilus further contends that he and the other two plaintiffs saw customers

paying the employers in cash on a few unspecified occasions. Arilus testified in

his deposition that he saw cash collected from customers on only one or two

occasions, and that he had four customers who gave him cash payments. The other

two plaintiffs admitted that the employers’ policy did not allow employees to

collect payments (in cash or otherwise) from customers. They also testified that

they were paid by a customer only on rare occasions and never in cash. We agree

with the district court that those statements “lack specificity” and “appear to be

based solely on assumptions without direct knowledge of any under-reporting of

annual sales or business done.” Arilus has not shown a genuine issue of material

fact.2

                                              III.

         In cases where the unpaid overtime wages were the result of a “willful

violation,” the time period for which an employee can recover back pay is

extended by one year. See 29 U.S.C. § 255(a). The district court concluded that
         2
          Arilus contends that the district court erred because it made assessments about
credibility in granting summary judgment. We disagree. The court’s grant of summary
judgment was based not on the credibility of any witness or party, but on the employees’ failure
to present evidence that would allow any reasonable jury to conclude that the employers’ gross
sales or business done was more than $500,000 in 2007 and 2008.
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Arilus had not shown willfulness, and that in any event, he could not recover for

the year 2006 because the employers’ annual gross volume of sales made during

that year were less than $500,000. The court noted that although the 2006 tax

returns showed $521,701 in gross receipts for that year, the employers presented

evidence showing that they used a cash basis of accounting, and that at least

$31,075 of those receipts was for business done in 2005, making the gross volume

of sales made or business done for 2006 less than $500,000. The court also

recognized that because the employers used a cash basis of accounting, some of the

sales made or business done in 2006 might actually be reported on the 2007 tax

returns. The court ultimately concluded, however, that the plaintiffs did not present

any compelling evidence showing that enough of the employers’ 2007 receipts

related to business done in 2006 such that the total annual sales or business done in

2006 would have exceeded $500,000.

      Arilus argues on appeal that the employers’ tax returns for 2006 were

“fraudulent” and that the employers “attempt to refute their own sworn-to tax

returns with a self-serving declaration” stating that the revenue reported was not

earned in that year. Arilus misapprehends the employers’ testimony about the

2006 tax returns. The employers simply explained how the gross revenue on the

2006 tax returns is not necessarily the same as the “annual gross volume of sales

made or business done” in 2006, which is the relevant question under the Act.


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Because the employers use the cash basis of accounting, which records cash

payments on the day they are received instead of the day the sale is made or the

business is done, the 2006 tax returns included receipts for business that was

actually done in 2005. That does not make the tax returns “fraudulent.” 3

       AFFIRMED.




       3
         Because we conclude that Arilus may not recover unpaid overtime wages for 2006
because the employers were not subject to the Act’s requirements for that year, we need not
address the district court’s conclusion that Arilus failed to show that any alleged violations were
willful.
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