                                                               [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                                                                       FILED
                          ________________________                U.S. COURT OF
                                                                     APPEALS
                                 No. 05-16435                   ELEVENTH CIRCUIT
                             Non-Argument Calendar                MARCH 27, 2006
                           ________________________              THOMAS K. KAHN
                                                                      CLERK
                       D. C. Docket No. 04-22705-CV-PAS

ROBERTO BORJA,

                                                           Plaintiff-Appellant,

                                       versus

HINES NURSERIES, INC.,

                                                           Defendant-Appellee.

                           ________________________

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

                                 (March 27, 2006)

Before DUBINA, HULL and COX, Circuit Judges.

PER CURIAM:

      Roberto Borja (“Borja”) appeals the district court’s grant of summary judgment

in favor of Hines Nurseries, Inc. (“Hines”), disposing of his overtime claim under the
Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., as well as his claim for

workers’ compensation retaliation under Florida Statutes § 440.205. The district

court judge granted summary judgment to Hines on the FLSA claim based on the

finding that, as an agricultural employee, Borja was exempt from the protections of

the FLSA as to overtime pay. See 29 U.S.C. § 213(b)(12). The judge granted

summary judgment on the Florida Workers’ Compensation retaliation claim because

Borja could not make out a prima facie case for retaliation. We agree with the district

court’s decisions and affirm.

      During all times relevant to this case, Borja was employed by Hines as either

a driver of “jockey trucks,” which move empty plant trailers to a portion of the Hines

facility where they are loaded with plants in preparation for sale, or as a “staging

area” employee, with the responsibilities of watering plants, loading plants onto

trailers, and picking up trash in the nursery area. About three weeks before the

termination of his employment, Borja complained to his superiors of breathing

problems. Hines sent Borja to a workers’ compensation doctor for evaluation. The

doctor concluded that Borja suffered from no work-related condition. Subsequently,

Borja returned to work. On October 18, 2004, Borja’s superior noticed that he was

not working and questioned him about how he felt. Borja responded that he was

having breathing problems. The supervisor then demanded that Borja see a doctor

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to certify that he was able to return to work. Borja did not do so. Instead, he simply

returned to work the next day, at which time he was ordered to discontinue working

until he obtained certification from a doctor of his fitness to work. Borja left his job

that day and never returned.

      Borja makes two principal contentions on appeal. First, he contends that,

because some of his job included picking up trash in the nursery, none of his

employment was exempt from FLSA overtime regulations. This contention is

meritless. Both the Department of Labor and Supreme Court have made clear that

activities that are secondary to farming, but supportive of it, are included within the

agricultural exemptions to the FLSA. See 29 U.S.C. § 213(b)(12); 29 C.F.R. §§ 780.

153, 780.154, 780.155, 780.158. Among those supportive, yet exempt, positions

listed in the Code of Federal Regulations are secretaries, bookkeepers, night

watchmen, and maintenance workers. 29 C.F.R. § 780.158(a). The regulation also

exempts a cook for the agricultural workers. 29 U.S.C. § 780.158(b). Surely, the

person who cleans the area where the crops are stored fits within this group, as does

the person who transports empty containers to a portion of the farm where they will

be filled with crops. See Maneja v. Waialua Ag. Co., 349 U.S. 254, 270-71, 75 S. Ct.

719, 728-29 (1955) (holding that the sugar processing exemption under what is now

29 U.S.C. § 213(j) “covers the workmen during the processing season while . . .

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cleaning the equipment during the week-end shut-down, and performing other tasks

closely and intimately connected with the processing operation.”).

       Borja also contends that the district court erred in finding that Borja could not

make out a prima facie case of retaliation under Florida Statutes § 440.205 because

he could not show that he had suffered an adverse employment action. See, e.g.,

Sierminski v. Transouth Financial Corp., 216 F.3d 945, 950-51 (11th Cir. 2000)

(holding that the burden-shifting approach from Title VII1 can be applied in Florida

workers’ compensation retaliation cases); Humphrey v. Sears, Roebuck, & Co., 192

F. Supp. 2d 1371 (S.D. Fla. 2002) (same). Borja argues that he was fired on October

18, 2004 when his supervisor, Sammy Locknath, stated that he did not want Borja to

work anymore. However, Borja misrepresents what Locknath actually said. On

October 18th, Borja told Locknath that he was not feeling well, and Locknath ordered

him to see a doctor to get clearance to work and stated in that regard that he did not

want Borja to work anymore without such certification. On the next day, when Borja

reported to work without any certification of his ability to work, Locknath ordered

       1
          The burden-shifting approach from Title VII retaliation cases requires a plaintiff to show
(1) that he sought the protections of the relevant statute; (2) that he suffered an adverse employment
action; and (3) that there exists a causal link between the adverse action and his seeking the statute’s
protections. See Little v. United Technol., Carrier Transicold Div., 103 F.3d 956, 959 (11th Cir.
1997). Once the plaintiff makes this showing, the defendant may then offer legitimate, non-
retaliatory reasons for the adverse employment action, and once this occurs, the plaintiff must
overcome those reasons by presenting evidence that they are pretextual. See Hairston v. Gainesville
Sun Pub. Co., 9 F.3d 913, 919-921 (11th Cir. 1993).

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him to discontinue working, stating that failure to comply would cause Locknath to

have to call the police.

      At no time did Locknath fire Borja. The evidence before the district court on

summary judgment was that Borja needed only to obtain medical certification of his

fitness to work in order to return to his job. When Borja left his job on October 19th

and did not return, he was deemed to have resigned, pursuant to established, written

company policy. Thus, the only “adverse employment action” that Borja suffered was

of his own making. The mere temporal proximity of Borja’s constructive resignation

to his requests for workers’ compensation cannot establish the prima facie case

required for a retaliation claim where the company took no affirmative action to

remove Borja from the payroll until Borja abandoned his job.

      Accordingly, we affirm the district court’s grant of summary judgment to

Hines.

      AFFIRMED.




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