                                                         [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                             No. 10-15326                ELEVENTH CIRCUIT
                                                             JULY 26, 2011
                         Non-Argument Calendar
                                                              JOHN LEY
                       ________________________
                                                               CLERK

                  D. C. Docket No. 1:09-cv-23195-MGC

MARIA RODRIGUEZ,

                                                     Plaintiff-Appellant,

                                  versus

JONES BOAT YARD, INC.,
a Florida Corporation,
VICTOR BARED,
individually,

                                                     Defendants-Appellees.

                       ________________________

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

                              (July 26, 2011)



Before TJOFLAT, CARNES and BLACK, Circuit Judges.

PER CURIAM:
         Maria Rodriguez appeals the district court’s order granting summary

judgment in favor of Jones Boat Yard, Inc. (Jones) and its President, Victor Bared

(Victor), (collectively, the Defendants) in her Fair Labor Standards Act (FLSA)

action against the Defendants. Rodriguez raises several issues on appeal, which

we address in turn. After reviewing the record and briefs,1 we affirm the district

court.

                                     I. BACKGROUND

         On May 1, 2000, Victor’s elderly mother, Ofelia Bared (Ofelia), hired

Rodriguez, a Nicaraguan national, as a live-in caregiver. Rodriguez’s duties

included preparing meals, performing hygienic and medical care, running errands,

cleaning Ophelia’ apartment, arranging transportation, taking care of Ophelia’s

finances, and general companionship. Rodriguez worked between 12 and 17

hours a day, 7 days a week, caring for Ophelia. In return for her services, Ofelia

paid Rodriguez $700-$1,100 a month and allowed Rodriguez to live in her

apartment. In May 2007, Victor placed Rodriguez on Jones’s payroll and included




         1
       “We review a district court’s grant of summary judgment de novo.” Walters v. Am.
Coach Lines of Miami, Inc., 575 F.3d 1221, 1226 (11th Cir. 2009). “In conducting our review,
we construe all facts and draw all reasonable inferences in favor of the non-moving party.” Id.

                                                2
her in Jones’s 401(k) program.2 Despite receiving regular payroll checks from

Jones, Rodriguez did not perform additional work for Jones or Victor.

       In August 2009, Rodriguez was fired and forced to vacate Ofelia’s

apartment.3 Rodriguez initiated this action on October 22, 2009, and subsequently

amended her complaint on April 15, 2010, alleging FLSA wage and hour

violations. On April 23, 2010, Defendants filed their motion for summary

judgment on all claims, arguing that: (1) Rodriguez was exempt from the FLSA

minimum wage and maximum hour provisions under the “companionship services

exemption,” 29 U.S.C. § 213(a)(15); and (2) as a matter of “economic reality” the

Defendants were not Rodriguez’s employer.

       This matter was referred to a magistrate, and on July 26, 2010, the court

issued its Report and Recommendation (R&R) finding in favor of the Defendants

on both grounds. In making its findings, the court did not consider a post-

deposition affidavit submitted by Rodriguez because it directly conflicted with her



       2
         The parties dispute why Rodriguez was placed on Jones’s payroll. Victor claims it was
done at Rodriguez’s insistence to help her become a naturalized citizen. Rodriguez contends she
was paid by Jones to “skirt” Social Security Administration regulations. Regardless of the
reason, it is undisputed that between May 2007, and August 2009, Rodriguez was on Jones’s
payroll.
       3
        Rodriguez claims she was fired because the Bared family did not want to pay her a
higher wage upon completion of nursing school.

                                               3
prior deposition testimony. On October 25, 2010, the district court entered a final

order adopting the R&R and granting summary judgment in favor of the

Defendants. Rodriguez now appeals.

                                   II. SHAM AFFIDAVIT
       Rodriguez first asserts the district court erred in applying the sham affidavit

rule in striking her post-deposition affidavit4 because the affidavit was not directly

contrary to her deposition testimony. She contends the affidavit creates an issue of

material fact and the court should have considered it when making its summary

judgment determination.5

       Under the sham affidavit rule, “[a]n affidavit may be stricken as a sham

‘when a party has given clear answers to unambiguous questions which negate the

existence of any genuine issue of material fact . . . [and that party attempts]

thereafter [to] create such an issue with an affidavit that merely contradicts,

without explanation, previously given clear testimony.’” Tippens v. Celotex

Corp., 805 F.2d 949, 954 (11th Cir. 1986) (citations omitted). The court making

this determination must be careful to distinguish “between discrepancies which


       4
        The affidavit was filed on May 19, 2010, approximately two months after Rodriguez’s
deposition transcript was filed.
       5
       We review a district court’s ruling on admissibility of evidence for abuse of discretion.
Corwin v. Walt Disney Co., 475 F.3d 1239, 1249 (11th Cir. 2007).

                                                4
create transparent shams and discrepancies which create an issue of credibility or

go to the weight of the evidence.” Id. at 953.

       The district court did not abuse its discretion in striking Rodriguez’s

affidavit. During Rodriguez’s deposition, defense counsel asked her two times

whether “almost 100%” of her time was devoted to caring for Ofelia. Rodriguez

responded affirmatively both times. We disagree with Rodriguez’s argument that

the question was ambiguous, and there is nothing in the record to indicate

Rodriguez did not understand what was being asked by defense counsel.

Moreover, Rodriguez did not provide an explanation why approximately two

months after her deposition, she submitted an affidavit stating she spent 20-25% of

her time doing general household work and that “almost 100%” of her time

actually “meant anywhere between 70 to 75% of the time.” Even assuming

Ofelia’s family members frequently visited the apartment, Rodriguez testified to

spending all of her time caring for Ofelia. We will not allow a party to create an

issue of material fact by providing supplemental testimony that contradicts prior

answers to unambiguous questions. See Tippens, 805 F.2d at 954.6


       6
        Rodriguez also claims the court improperly weighed credibility when it stated “ . . . I
think that words were put into [Rodriguez’s] mouth by her attorney and that concerns me.” The
court was not weighing credibility here, but rather expressing concern with the fact that
Rodriguez’s counsel submitted an affidavit contradicting his client’s prior deposition testimony
without providing an adequate explanation.

                                                5
                 III. “COMPANIONSHIP SERVICES” EXEMPTION

       Rodriguez next contends she does not meet the FLSA “companionship

services” exemption because 20% or more of her work consisted of general

household duties. Pursuant to this exemption, “any employee employed in

domestic service employment to provide companionship services for individuals

who (because of age or infirmity) are unable to care for themselves” is exempt

from the minimum wage and maximum hour requirements found in 29 U.S.C.

§§ 206 and 207, provided any incidental general household work performed

“does not exceed 20 percent of the total weekly hours worked.” 29 U.S.C.

§ 213(a)(15); 29 C.F.R. § 552.6. This exemption extends to workers paid by third

parties. Buckner v. Fla. Habilitation Network, Inc., 489 F.3d 1151, 1153 (11th

Cir. 2007). Rodriguez’s argument is without merit because the admissible

evidence illustrates nearly all of her work related to the personal care of Ofelia.

                                IV. EMPLOYER STATUS

       Lastly, Rodriguez contends the district court erred when it determined the

Defendants were not her “employers” under the FLSA.7 We look at the

“economic reality of the relationship between the parties” to determine employer


       7
        “A determination of employment status under the FLSA . . . is a question of law subject
to our de novo review.” Antenor v. D&S Farms, 88 F.3d 925, 929 (11th Cir. 1996).


                                               6
status. Villarreal v. Woodham, 113 F.3d 202, 205 (11th Cir. 1997). This

determination includes inquiries into: “whether the alleged employer (1) had the

power to hire and fire the employee[], (2) supervised and controlled [the

employee’s] work schedule[] or condition[] of employment, (3) determined the

rate and method of payment, and (4) maintained employment records.” Id.

      Despite the fact that Victor placed Rodriguez on Jones’s payroll and

entered her into Jones’s 401(k) plan, Rodriguez fails to present any additional

material evidence tending to show the Defendants were her employer. It is

undisputed that Rodriguez did not perform any work for Victor or Jones during

the period she was employed. Furthermore, Rodriguez’s claim that she was hired

and fired by the Defendants is completely belied by the record. Accordingly,

Rodriguez’s argument is without merit and we affirm the district court’s grant of

summary judgment.

      AFFIRMED.




                                         7
