              Case: 18-12689    Date Filed: 10/29/2019   Page: 1 of 13


                                                             [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 18-12689
                             Non-Argument Calendar
                           ________________________

                       D.C. Docket No. 1:16-cv-24873-AOR

ROSA ROMERO,
and other similarly situated individuals,
LUIS MATEO,
and other similarly situated individuals,

                                                          Plaintiffs-Appellants,


                                       versus


RAZZLE DAZZLE BARBERSHOP, INC.,
 a Florida Profit Corporation,
RAZZLEDAZZLE BARBERSHOP II, INC.,
a Florida Profit Corporation,
RAZZLEDAZZLE BARBERSHOP MIDTOWN, LLC.,
a Florida Profit Corporation,
RAZZLEDAZZLE BARBERSHOP SOBE, LLC.,
a Florida Profit Corporation,
RAZZLEDAZZLE BARBERSHOP SOMI, LLC.,
a Florida Profit Corporation,
ELENA LINARES,

                                                          Defendants-Appellees.
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                                 ________________________

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

                                        (October 29, 2019)

Before MARCUS, ROSENBAUM, and GRANT, Circuit Judges.

PER CURIAM:

          Rosa Romero and Luis Mateo sued their former employer for unpaid wages

under the Fair Labor Standards Act (FLSA). Specifically, they alleged that they

were misclassified as independent contractors and that overtime wages were

unlawfully withheld. At trial, the jury found that they were independent

contractors. In this appeal, the plaintiffs argue that the district court improperly

denied their motions for judgment notwithstanding the verdict, for a new trial, and

for a mistrial.1 We disagree, and affirm.

                                                  I.

          Rosa Romero and Luis Mateo worked as barbers for the defendants—Elena

Linares and several of her “Razzle Dazzle” barbershops (collectively “Razzle

Dazzle”). The barbers allege that, over a period of employment, they worked in

excess of forty hours per week and did not receive the additional overtime pay that

they were entitled to under FLSA. In Razzle Dazzle’s view, however, the barbers


1
    The appellees (defendants below) failed to submit a brief on appeal.
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were not entitled to overtime pay because they were independent contractors and

were therefore exempt from the overtime provisions of FLSA.

      With the consent of both parties, the case was tried before a magistrate

judge. Both parties presented evidence to the jury concerning employment status.

The barbers introduced confidentiality and non-compete agreements describing

them as “employees.” In Romero’s agreement, one clause explains that the

barbershop invests approximately $600 to train new barbers, and that a pro-rated

portion of the investment must be repaid if the new-hire leaves within six months.

The barbers also introduced a “staff manual” detailing a dress code, attendance

policy, and description of various job-related duties such as dusting. The staff

manual contains a variety of workplace rules and states that there is “no need” for a

barber to encourage customers to return “just for them.” Id. The barbers testified

that they did not set their own schedule, were not allowed to choose what hair

products to use, and were required to wear specific uniforms.

      Elina Linares, the owner of Razzle Dazzle, provided conflicting testimony.

She testified that the barbers set their own schedules, wore what they wanted, and

were free to choose the hair products they used on their clients. She also testified

that the barbers could set their own price for services, and sometimes chose to give

haircuts for free. She testified that the barbers were free to provide services to

others as long as it was outside of the radius specified in the noncompete


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agreement, and that at least one of her barbers built his own customer base at her

shop and would not share his clients with other barbers. Finally, she also

explained that the barbers provided their own clippers, blow dryers, combs,

scissors, and other barbering equipment.

      At one point during the trial, Linares testified that, in 2015, she learned

about an investigation into her business by the State of Florida’s Division of

Workers’ Compensation. Her testimony about this incident on direct examination

was brief and her most relevant statement was that she never received anything in

writing indicating that she violated the law or misclassified her employees. On

cross-examination, the barbers’ counsel pointed out that nine months earlier, at her

deposition, she testified that the investigation was conducted by the Department of

Labor—not the State of Florida’s Division of Workers’ Compensation. Linares

explained that she was mistaken about the name of the agency at the time of the

deposition and only learned of the correct name when she found a business card

shortly before trial. Counsel continued to inquire about this investigation and, in

the course of the cross-examination, revealed details to the jury about the

investigation and the agency’s ultimate finding in favor of Linares.

      Following this cross-examination, the barbers moved for a mistrial. They

argued that Razzle Dazzle’s counsel should have immediately divulged the correct

name of the agency when he learned of it three days earlier and that it was


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improper for the jury to hear about the investigation. The judge denied the motion

and said that the investigation was “a totally collateral issue,” not a “major issue in

the case.”

      The case was submitted to the jury, and it returned a verdict in favor of

Razzle Dazzle. On the verdict form, the jury found that Rosa Romero and Luis

Mateo were not employees of Elena Linares or the Razzle Dazzle Barbershops.

Although the barbers never moved for judgment as a matter of law before the

verdict was returned, they moved for a judgment notwithstanding the verdict on the

issue of employment status or, in the alternative, for a new trial. The district court

denied these motions.

      On appeal, the barbers challenge the district court’s denial of the motion for

judgment notwithstanding the verdict and denial of the motion for a new trial.

                                          II.

      A motion for “judgment notwithstanding the verdict” is properly called a

renewed motion for “judgment as a matter of law” under Fed. R. Civ. P. 50(b). See

Amendments to the Federal Rules of Civil Procedure, 134 F.R.D. 525, 679–82

(1991). Generally, a district court may grant such a motion only on the grounds

advanced in a motion for judgment as a matter of law under Rule 50(a)—made

before the case was submitted to the jury. McGinnis v. Am. Home Mortg.

Servicing, Inc., 817 F.3d 1241, 1260 (11th Cir. 2016). If a party fails to file a


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motion under Rule 50(a) before the case is submitted to the jury, the “renewed”

motion under Rule 50(b) can only be granted if plain error is shown. Id. at 1260

n.13. In such cases, on appeal “our inquiry is limited to whether there was any

evidence to support the jury’s verdict, irrespective of its sufficiency, or whether

plain error was noted which, if not noticed, would result in a manifest miscarriage

of justice.” Sims’ Crane Serv., Inc. v. Ideal Steel Prod., Inc., 800 F.2d 1553, 1557

(11th Cir. 1986).

      “Absent an abuse of discretion, the district court’s disposition of a motion

for a new trial will not be disturbed on appeal, especially when that disposition was

to deny the motion.” Ermini v. Scott, ___ F.3d ___, No. 18-11220, slip op. at 13

n.4 (11th Cir. Sept. 10, 2019). A district court’s decision not to grant a mistrial is

also reviewed for abuse of discretion. Frederick v. Kirby Tankships, Inc., 205 F.3d

1277, 1285 (11th Cir. 2000).

                                          III.

                                          A.

      Because the barbers did not move for judgment as a matter of law before the

case was submitted to a jury, they can only prevail on their post-verdict motion if

“plain error can be proven.” McGinnis, 817 F.3d at 1260 n.13 (emphasis in

original); Sims’ Crane Serv., Inc., 800 F.2d at 1557. In fact, the only question we

ask on appeal is whether there was “any evidence to support the jury’s verdict,


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irrespective of its sufficiency” or if an affirmance would lead to “a manifest

miscarriage of justice.” Sims’ Crane Serv., Inc., 800 F.2d at 1557 (emphasis in

original). Under this standard of review, the district court did not plainly err in

denying the barbers’ motion for judgment notwithstanding the verdict.

      The FLSA contains overtime and minimum wage protections that apply to

employees, but not to independent contractors. “To determine whether an

individual falls into the category of covered ‘employee’ or exempted ‘independent

contractor,’ courts look to the ‘economic reality’ of the relationship between the

alleged employee and alleged employer and whether that relationship demonstrates

dependence.” Scantland v. Jeffry Knight, Inc., 721 F.3d 1308, 1311 (11th Cir.

2013). “Employees are those who as a matter of economic reality are dependent

upon the business to which they render service.” Id. (citation and alteration

omitted). A number of factors guide this analysis: “(1) the nature and degree of the

alleged employer’s control as to the manner in which the work is to be performed;

(2) the alleged employee’s opportunity for profit or loss depending upon his

managerial skill; (3) the alleged employee’s investment in equipment or materials

required for his task, or his employment of workers; (4) whether the service

rendered requires a special skill; (5) the degree of permanency and duration of the

working relationship; (6) the extent to which the service rendered is an integral part

of the alleged employer’s business.” Id. at 1311–12.


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       Both sides presented evidence to the jury on this question.2 The primary

dispute involved conflicting testimony regarding the degree of control that Linares

exercised over the barbers. The barbers testified that they were told when to work,

what to wear, and what products to use. In stark contrast, Linares testified that the

barbers set their own schedules, were free to choose their own attire, and could

choose what products they used. Her testimony, if believed by the jury, meant that

many of the rules in the staff manual (regarding things such as attire) were

advisory and not actually required. The jury was entitled to make this credibility

determination.

       Evidence was also presented on the other factors. With respect to the

barbers’ opportunity for profit, Linares testified that the barbers could double their

guaranteed hourly rate or weekly salary from tips and from sales commissions.

Moreover, although the staff manual encourages barbers to share clients, Linares

testified that in practice, at least some of her barbers did not share clients with

others. Additional testimony from both parties addressed the personal grooming



       2
          Although employment status is a question of law, there are underlying questions of fact
that lead to this determination. See Donovan v. New Floridian Hotel, Inc., 676 F.2d 468, 471 n.4
(11th Cir. 1982); cf. Patel v. Wargo, 803 F.2d 632, 634 (11th Cir. 1986) (explaining that
employer status is a question of law with subsidiary questions of fact). “Issues involving mixed
questions of law and fact are typically resolved by juries.” Watkins v. City of Montgomery, 775
F.3d 1280, 1288 (11th Cir. 2014); see also Moore v. Appliance Direct, Inc., 708 F.3d 1233, 1237
(11th Cir. 2013) (concluding that “reasonable jurors could differ as to whether [the defendant]
was an employer under the requirements of the FLSA”).

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equipment that the barbers were required to provide, the licensing requirement by

the state, the length of the working relationship, and the nature of Razzle Dazzle’s

business.

      Clearly, some evidence was presented which supports the jury’s finding.

And we certainly cannot conclude that an affirmance would result in a “manifest

miscarriage of justice.” Sims’ Crane Serv., Inc., 800 F.2d at 1557. Accordingly,

we find no plain error in the district court’s decision.

                                           B.

      The barbers also argue that they are entitled to a new trial because the

verdict was against the great weight of the evidence. We conclude, however, that

the district court did not abuse its discretion in denying the barbers’ motion for a

new trial. “The law of this circuit holds that the trial court should grant a new trial

only where the verdict is against the great weight of the evidence. And normally,

this court will reverse a decision denying a motion for new trial only where there is

an absolute absence of evidence to support the verdict.” Hercaire Int’l, Inc. v.

Argentina, 821 F.2d 559, 562 (11th Cir. 1987) (citations omitted). “This is

especially true where, as here, the verdict-loser failed to test the sufficiency of the

evidence in the trial court by means of motions for directed verdict and judgment

n.o.v. Under these circumstances, our inquiry is limited to whether there was any

evidence to support the jury’s verdict, irrespective of its sufficiency.” Id. (citations


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and quotation marks omitted and first emphasis added); see also Coughlin v.

Capitol Cement Co., 571 F.2d 290, 297–98 (5th Cir. 1978) (“When, as in this case,

a motion for a new trial has been made on the ground of insufficient evidence to

support the verdict and the like, the failure by the losing party to move for a

directed verdict still operates to foreclose consideration of the question of

sufficiency on appeal.”) (citation and alteration omitted); House of Koscot Dev.

Corp. v. Am. Line Cosmetics, Inc., 468 F.2d 64, 67–68 (5th Cir. 1972) (holding that

moving for judgment notwithstanding the verdict does not cure the failure to move

for a direct verdict before the case was submitted to a jury).3

        Against this high standard, we cannot say that the district court abused its

discretion in refusing to grant a new trial because of the weight of the evidence.

The barbers failed to test the sufficiency of the evidence by means of a judgment as

a matter of law (directed verdict) before the case was submitted to the jury.

Accordingly, “our inquiry is limited to whether there was any evidence to support

the jury’s verdict, irrespective of its sufficiency.” Hercaire Int’l, Inc., 821 F.2d at

562. As noted above, at least some evidence supports the jury verdict. The jury

was entitled to choose between conflicting evidence, and the district court did not

abuse its discretion by respecting the jury’s decision.




3
 In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.1981) (en banc), the Eleventh Circuit adopted as
binding precedent the decisions of the Fifth Circuit rendered prior to October 1, 1981.

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                                           C.

      Finally, we address the barbers’ argument that the district court erred by

refusing to grant a mistrial. Because the trial judge “is in the best position to

evaluate the prejudicial effect of a statement or evidence on the jury,” we review

the decision to deny a mistrial for abuse of discretion. United States v. Newsome,

475 F.3d 1221, 1227 (11th Cir. 2007). “To find error warranting reversal, we must

find that [the appellant] made a timely objection and that a substantial right was

affected.” Frederick, 205 F.3d 1277, 1285 (11th Cir. 2000). Here, we conclude

that the district court did not abuse its discretion in concluding that the errors

identified at trial by the barbers—Linares’ testimony concerning the State of

Florida’s investigation and the alleged discovery violation—did not warrant a

mistrial.

      The statement made by Linares on direct examination concerning the

investigation by the State of Florida Division of Workers’ Compensation was

unlikely to have influenced the jury in any meaningful way. On direct

examination, the only response that could have influenced the jury was to the

following question: “did you ever receive anything in writing from workmen’s

comp indicating that you were in violation of the law and that you were

misclassifying your employees?” Linares responded: “No.” No further questions

about this investigation were asked on direct examination.


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      Instead of objecting at the time this testimony was introduced, however, the

barbers’ attorney immediately engaged in an extensive cross-examination

regarding the investigation. Ultimately, during this cross-examination, the fact that

the investigation ended favorably to Linares was elicited by the barbers’ own

attorney. Only at the end of this cross-examination did the barbers request a

sidebar and a mistrial.

      We cannot say that the district court erred in denying the motion for a

mistrial. First, it is not clear that testimony about an unrelated state investigation

was prejudicial. The trial court is in the best position to assess the potential

prejudicial effect of testimony or evidence to a jury. Newsome, 475 F.3d at 1227.

Here, the court concluded that a state agency’s decision to cease investigating an

unrelated state law violation was “totally collateral” to the issue at trial—the

classification of employees under federal law.

      Second, to the extent that the testimony was damaging at all, almost all of

the harm stems from the details elicited by the barbers’ own attorney on cross-

examination. “It is a cardinal rule of appellate review that a party may not

challenge as error a ruling or other trial proceeding invited by that party.”

Birmingham Steel Corp. v. Tennessee Valley Auth., 353 F.3d 1331, 1340 n.5 (11th

Cir. 2003). Here, instead of objecting to the testimony as soon as it was brought up

on direct examination (and immediately bringing the potential discovery violation


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to the attention of the trial court), the barbers extensively cross-examined Linares

about the event. In light of this tactical decision, it was not an abuse of discretion

for the trial court to reject the barbers’ argument that they were prejudiced by facts

that they elicited. United States v. Sarras, 575 F.3d 1191, 1216 (11th Cir. 2009)

(holding that it is invited error when a party’s “question elicited the very testimony

about which he now complains”); United States v. Parikh, 858 F.2d 688, 695 (11th

Cir. 1988) (concluding that it is invited error when a party “effectively caused the

injury about which he now complains by questioning the witness”); cf. Frederick,

205 F.3d at 1286 (11th Cir. 2000) (concluding that a mistrial was not warranted

where a party “could have objected when the evidence was offered on direct

examination, thereby avoiding the potential problem of objecting to its own cross-

examination”). In light of these considerations, we cannot conclude that the

district court abused its discretion in refusing to grant the mistrial.

      The judgment is AFFIRMED.




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