UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO. 20-21773-CIV-MORENO/GOODMAN

GUSTAVO PEREZ, 

Plaintiff,

v.

FLORIDA BEAUTY FLORA, INC., et al.,

Defendants.

___________________________________/

REPORT AND RECOMMENDATIONS ON 

DEFENDANTS’ SUMMARY JUDGMENT MOTION

Plaintiff Gustavo Perez filed a Fair Labor Standards Act lawsuit against his former 

employer, Florida Beauty Flora, Inc. (“FBF”), and two of its principals (Ronen Koubi and 

Ralph Milman), alleging that FBF did not properly pay him overtime wages. [ECF No. 1]. 

Defendants filed a summary judgment motion [ECF No. 25], contending that Perez is 

exempt from the FLSA’s overtime provision because of three exemptions: the executive 

exemption, the administrative exemption, and the highly compensated employee 

exemption. Perez filed an opposition response [ECF No. 68] and FBF filed an optional 

reply [ECF No. 72]. 

What FBF did not do, however, is file a required, separately served Reply 

Statement of Material Facts. Thus, it did not properly interpose challenges to the 

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additional facts (paragraphs 54 through 108) which Perez contends are undisputed in his 

“Additional Facts” section. [ECF No. 64, pp. 7-16]. Because Perez’s additional facts contain 

evidentiary support (such as declarations),1the Court accepts his additional facts as 

sufficient to generate a genuine dispute over the material facts which FBF says are 

undisputed in its summary judgment motion presentation.

United States District Judge Federico A. Moreno referred [ECF No. 37] Defendants’

summary judgment motion to the Undersigned for a Report and Recommendations.

For reasons outlined in greater detail below, the Undersigned respectfully 

recommends that Judge Moreno deny Defendants’ summary judgment motion. At 

bottom, there is a substantial factual dispute about whether Perez meets all the elements 

necessary to be properly classified as exempt under any of the three claimed exemptions. 

Although FBF and the other two Defendants would be entitled to summary judgment if 

they demonstrated an absence of genuine material fact on even one of the exemptions, 

they have not accomplished that goal. 

Perez concedes that he was a highly compensated employee (because he was paid 

more than $107,432 per year), but there is a dispute over the other required element -- i.e., 

that he regularly performed any of the exempt duties or responsibilities of an executive 

or administrative employee.

1 28 U.S.C. § 1746 provides that an unsworn declaration in substantially the form 

designated in the statute has “like force and effect” of an affidavit. The language used in 

the Perez-submitted declarations are in the designated form.

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And there are disputes over other required elements for the other exemptions. For 

example, there is a dispute over FBF’s contention that Perez’s primary duty was 

management or general business operations, issues relevant to the administrative 

exemption. Likewise, there is a dispute over Perez’s exercise of discretion and 

independent judgment concerning significant matters -- other factors relevant to the 

administrative exemption. There are also disputes about Perez’s authority to hire or fire 

other employees and whether his suggestions were given particular weight, which are 

issues for the executive exemption. And, given these disputes, there are consequently 

disputes over the highly compensated employee exemption, which involves the duties or 

responsibilities described above.

In its reply memorandum, FBF, in attorney rhetoric, argues that Perez’s 

presentation is conclusory and inconsistent with certain documents, such as emails. But 

FBF did not comply with the straightforward procedural directive that it respond to 

Perez’s additional facts on a paragraph-by-paragraph basis. 

It is not the Court’s job to scan through the record and determine which of Perez’s 

purported undisputed facts are actually disputed and to conduct a pinpoint search for 

the evidentiary support for that determination. That task is a time-consuming one which 

would require comprehensive familiarity with the nuances of the factual record. That is 

why, in part, Local Rule 56.1(b)(3) requires the initial movant (such as FBF) to serve a 

separate Reply Statement of Material Facts if an opponent (such as Perez) serves a 

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Statement of Material Facts which includes additional facts (like Perez did in his 

submission).

Given the existence of factual disputes, many of which were caused by FBF’s 

failure to specifically identify as disputed or undisputed Perez’s Additional Facts, a jury 

will therefore need to determine the viability of the claimed exemptions if this case is not 

otherwise resolved.

I. The Local Rule and Its Straightforward Requirements

For purposes of explaining the fundamental gap in FBF’s submissions, the 

Undersigned will summarize the relevant components of Local Rule 56.1. The provisions 

which FBF failed to follow were part of an amendment effective December 2, 2019, more 

than fifteen (15) months before FBF served an optional reply memorandum (but failed to 

serve the required Reply Statement of Material Facts).

First, there is a Statement of Material Facts. Both the Movant and the Opponent 

must file one. The Movant files the initial one. The format is separately numbered 

paragraphs. The Movant lists those material facts which the Movant deems undisputed. 

The Opponent then must file a Statement of Material Facts. The format is unambiguous: 

the very first word in each paragraph-by-paragraph response must be “disputed” or 

“undisputed.” If the Opponent contends that a purported undisputed fact is actually 

disputed, then the Opponent must provide evidentiary citations.

The local rule also gives the Opponent the ability to provide additional facts which 

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the Opponent deems to be undisputed (and which the Opponent views as support for an 

Order denying the Movant’s summary judgment motion). If the Opponent takes 

advantage of this opportunity, then the original Movant must file a Reply Statement of 

Material Facts. That Reply Statement of Material Facts must also use a paragraph-byparagraph form, and it must use “disputed” or “undisputed” as the very first word. And 

in the event that the initial Movant contends that a purportedly undisputed additional 

fact is actually disputed, then the Movant must provide evidentiary citations.

II. Undisputed2 Factual Background and Procedural History

A. Facts Highlighted By FBF3

2 The facts here are generated from the paragraphs in each side’s Statement of Facts 

which the opposing party agreed are undisputed. As highlighted above, and as further 

explained in this history, FBF never submitted the required Reply Statement of Material 

Facts, and it therefore did not agree or disagree with Perez’s contention that his additional 

facts are undisputed.

Therefore, the disputed facts, from a technical and procedural perspective, are 

only those flagged as disputed by Perez. For those purported facts which Perez classified 

as partly disputed, the Undersigned includes only the undisputed portions. The 

Undersigned will retain the paragraph numbering used by the parties. The abbreviation, 

“N/A,” means that the paragraph proffered by FBF as undisputed is treated as disputed.

The Undersigned sometimes changed the wording of an undisputed fact for stylistic 

and/or grammatical purposes. In addition, to enhance readability, I removed the specific 

record citations. They can be found in the initial source document if needed.

3 FBF filed its separate Statement of Facts twice. [ECF Nos. 44; 45]. There does not 

appear to be any difference between them, and the Undersigned assumes that FBF 

inadvertently filed the same document twice. 

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1. This case is a dispute about Plaintiff’s allegation that Defendants violated

the Fair Labor Standards Act. 

2. Defendant FBF is a Florida Profit Corporation that employed Plaintiff. 

3. FBF is covered by the FLSA. 

4. Defendants are engaged in the movement of goods in commerce. 

5. FBF is an employer under the FLSA and employed Perez until February 14, 

2020. 

6. Plaintiff Perez worked in the Sales Department of FBF. 

7. At relevant times alleged in the lawsuit, Defendants Koubi and Milman 

were officers of FBF. 

8. FBF is a transportation, logistics, and warehouse distribution company

providing services throughout the United States. 

9. On or about May 13, 2020, Plaintiff filed its Statement of Claim. 

10. In his Statement of Claim, Plaintiff defines the relevant time period as April 

28, 2017 to April 28, 2020. 

11. In 2017, Plaintiff was paid a salary of $110,000.02. 

12. In 2017, Plaintiff was paid a salary of $2,115.38 per week. 

13. In 2018, Plaintiff was paid a salary of $121,583.47. 

14. In 2018, Plaintiff was paid a salary of $2,337.25 per week. 

15. In 2019, the Plaintiff was paid a salary of $125,175. 

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16. Plaintiff received a $5,000 bonus in 2019. 

17. In 2019, Plaintiff received weekly salary compensation of $2,407.21. 

18. Plaintiff worked six weeks in the calendar year 2020. 

19. Plaintiff was paid $20,000 in 2020, receiving $3,333.33 per week of work.

20. At all times during the Relevant Time Period the Plaintiff was compensated 

by a salary that exceeded $684 per week. 

21. At all times during the Relevant Time Period the annual compensation of 

Plaintiff exceeded $107,432 per annum.

22. Plaintiff was the manager of the floral department within FBF’s sales 

department during the entire relevant time period.4

23. Sales is a customarily recognized department at FBF. However, Perez

implicitly contends that this is misleading because: (1) the Floral Department where he 

worked was a subgroup of the sales department; (2) Perez was the only employee who 

worked in the floral department; and (3) it is incorrect to equate the two departments.

24. Throughout the relevant time period and through the present, the floral 

department is critical to FBF’s business. However, Perez asserts as disputed the point that 

the department was staffed by anyone other than him.

4 Perez’s response to numbered paragraph 22 of FBF’s Statement of Material Facts 

is one word: “Disputed.” He did not provide any evidentiary support for this position, 

as required by the local rule. The Undersigned therefore deems this paragraph to be 

undisputed.

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25. During the relevant time period, Plaintiff was the highest paid employee in 

the floral department. [But Perez points out that he was the only employee in the

department, which means that he was also the lowest paid employee there].

26. In his LinkedIn profile, Perez holds himself out to the public as a manager 

at FBF. [Perez argues that this is irrelevant because the title he gave himself on his profile 

will not prove or disprove his status as an exempt employee].

27. N/A

28. N/A

29. N/A

30. Plaintiff reported directly to Mr. Koubi, President of FBF, or Mr. Milman, a 

high-ranking officer of FBF. [But Perez contends that he worked directly beside Effie 

Kaplan, who is married to Ralph Milman. In addition, he notes that he also reported to 

Ari Afek, who is Ms. Kaplan’s son, and the director of FBF’s Human Resources 

Department].

31. N/A

32. N/A

33. N/A

34. N/A

35. N/A

36. N/A

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37. N/A

38. N/A

39. Although Perez drafted work schedules, those schedules had to be 

approved by Ralph Milman or Ari Afek. 

40. N/A

41. N/A

42. N/A

43. At all times, Plaintiff knew and recognized that his duties greatly exceeded 

those of other sales personnel.

5

44. N/A

45. N/A

46. Plaintiff regularly reported employee grievances and safety concerns.

47. N/A

48. Perez had a little discretion for setting prices. 

49. When Plaintiff negotiated a rate for client satisfaction, the President of FBF

rarely disputed a rate Plaintiff offered because Plaintiff was required by FBF policy to not 

set a rate lower than $2.00/cube. 

5 Plaintiff did not designate this paragraph as “undisputed” or “disputed.” Instead, 

he interposed an “Objection.” The Undersigned therefore considers part of this 

paragraph to be undisputed (but I omitted the portion where Perez otherwise in his 

response provided a correct and required response and supported it with an evidentiary 

citation).

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50. N/A

51. If Perez set a price inside of the so-called “spread,” then he would provide 

the rates to Ari Afek, Director of Human Resources, who had the authority to input the 

rates into the computer systems. 

52. By Plaintiff’s own words in an internal email to a new employee, Perez 

introduced himself and represented that his “duties include managing flower 

department, claims, sales and accounting.” [Perez contends that this statement is

irrelevant because it does not establish or undermine his status as a purportedly exempt 

employee].

53. N/A

B. Facts Highlighted by Perez

In its Statement of Material Facts [ECF No. 44], FBF asserted 53 separately 

numbered paragraphs of supposedly undisputed facts. With two or three exceptions, 

Perez responded to each paragraph in the procedurally required format (i.e., beginning 

each response with “disputed” or “undisputed” and providing evidentiary support for 

each numbered paragraph designated as undisputed).

In his Statement of Material Facts [ECF No. 64], Perez also listed additional facts

and represented that they are undisputed. Indeed, the title of his submission is “Plaintiff’s 

Response to Defendant’s Material Facts and Plaintiff’s Additional Facts.” (emphasis 

added). Specifically, Perez asserted 55 additional paragraphs of supposedly undisputed 

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facts (paragraph numbers 54-108). So Perez asserted more purportedly undisputed facts 

than FBF proffered as part of its summary judgment motion package.

In any event, regardless of whether Perez raised more, less or the same number of 

allegedly undisputed facts than FBF, the significant point is that FBF never filed a Reply 

Statement of Material Facts -- and therefore never explained which of those 55 additional 

paragraphs of purportedly undisputed facts were disputed, why they were disputed, and 

the precise evidence in the record which confirmed FBF’s position.

To be sure, it is obvious that FBF does take the position that Perez’s Additional 

Facts are, as a general matter, disputed and unreliable. But it does so in a sweeping, 

conclusory way, without complying with the local rule. For example, its reply 

memorandum argues that “Plaintiff only relies on uncorroborated, conclusory 

declarations that are contradicted by the record evidence.” [ECF No. 72, p. 2]. But that is 

a far cry from submitting a paragraph-by-paragraph presentation, with each paragraph 

unequivocally classifying an additional fact as “disputed” or “undisputed.”

At times, FBF’s reply memorandum quotes evidence to support its position. But it 

does not refer back to Perez’s Additional Facts, so that the reader can quickly and easily 

discern which paragraph is being challenged by FBF as undisputed. As noted earlier, it is 

not a court’s job to scour a memorandum to figure out which numbered paragraph from 

the Additional Facts is being discussed, nor is it a judge’s job to infer which paragraphs 

are being challenged through broad rhetoric. Similarly, arguing that certain 

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representations (without specifying which ones they are) are “contradicted by the record 

evidence” [ECF No. 72, p. 2] is unhelpful. 

From FBF’s optional reply memorandum, it is obvious that it disagrees with some 

of Perez’s additional facts and therefore would most likely have classified those 

paragraphs as disputed. But the Undersigned does not know if FBF would brand as 

disputed some, many, most, or all of Perez’s additional facts. And I certainly would not 

know which particular paragraphs are being challenged as disputed by FBF, nor would I 

know the specific record evidence which FBF is relying upon to justify its position that a 

fact labeled by Perez as undisputed is actually disputed, or why.

The Eleventh Circuit has joined several other federal appellate courts in noting 

that judges “are not like pigs, hunting for truffles buried in briefs” and pointing out that 

“district court judges are not required to ferret out delectable facts buried in a massive 

record.” A.L. v. Jackson Cnty. School Bd., 635 F. App’x 774, 786-87 (11th Cir. 2015); see also 

Berkower v. USAA Cas. Ins. Co., No. 15-23947-CIV, 2017 WL 1250419, at *3 (S.D. Fla. Apr. 

4, 2017) (“A barebones, conclusory statement that an undisputed fact is ‘disputed’ does 

not make it so, which is why the local rules requires evidentiary record citations.”).

Moreover, our appellate court has highlighted the burdens arising from a party’s 

failure to bring specific facts to the court’s attention. Specifically, the Eleventh Circuit has 

succinctly explained that “making district courts dig through volumes of documents and 

transcripts would shift the burden of sifting from [litigants] to the courts,” a scenario 

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which is unworkable because “with a heavy caseload and always limited resources, a 

district court cannot be expected to do a [litigant’s] work for him.” Chavez v. Sec’y Florida 

Dept. of Corr., 647 F.3d 1057, 1061 (11th Cir. 2011); see also Johnson v. City of Fort Lauderdale, 

126 F.3d 1372, 1373 (11th Cir. 1997) (“[W]e are not obligated to cull the record ourselves 

in search of facts not included in the statement of fact”); cf. Royal Bahamian Ass’n, Inc. v. 

QBE Ins. Corp., 750 F. Supp. 1346, 1361 (S.D. Fla. 2010) (Moreno, J., affirming and adopting 

a Report and Recommendation which explained that “it is not the Court’s role to guess 

as to whether this key fact [is] necessary” for a summary judgment issue).6

Local Rule 56.1(c) provides the consequences for failure to properly controvert 

undisputed facts: “All material facts in any party’s Statement of Material Facts may be 

deemed admitted unless controverted by the other party’s Statement of Material Facts, 

provided that: (i) the Court finds that the material fact at issue is supported by properly 

cited record evidence; and (ii) any exception under Fed. R. Civ. P. 56 does not apply.” 

The Undersigned will now (using Perez’s paragraph-numbering format) list7 all of 

Perez’s additional facts, which, because FBF did not serve a Reply Statement of Material 

Facts, are, for purposes of this motion, being treated as undisputed.

6 The Report and Recommendations approved by Judge Moreno also cited United 

States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (internal quotation marks omitted) (“Judges 

are not expected to be mindreaders. Consequently, a litigant has an obligation to spell 

out its arguments squarely and distinctly, or else forever hold its peace.”).

7 Similar to the procedure used for listing FBF’s undisputed facts, the Undersigned 

is removing the specific record citations.

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C. Additional Facts

54. While his title at FBF was Sales Manager, Perez was a “manager” only by 

title, and his primary duty was sales. He was the only salesperson whose job it was to sell 

shipping space (the unit of measure is called a “cube”) to businesses that shipped flowers. 

His sales accounted for approximately 60% of the sales of FBF and required 

approximately 80-90 hours per week of work. 

55. Perez was normally paid based upon an 80-hour work week, and he was 

asked to clock-in and clock-out each day. 

56. He was not in charge of marketing or negotiating contracts for advertising. 

That was the responsibility of Ari Afek. 

57. Perez was not in charge of dispatching. That was the responsibility of Gus 

Duarte. 

58. During the relevant time period, Perez had a very narrow price range that 

he had permission to sell cubes. 

59. Perez was instructed by Ralph Milman that he was not allowed to sell a 

cube lower than the set amount without permission from management (e.g., “Can we 

move them down to [X]?”). 

60. By forcing Perez to ask to have the price input into the computer system, 

Management ensured the rate that was set per cube was not outside of the range set by 

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management. Perez was not allowed to input the cube rate without asking Mr. Afek to 

set it in the computer. 

61. An example of Perez not being allowed to set a price below the “set 

amount” per cube and having to ask permission from management is the two emails that 

he sent to Effie Kaplan, Ari Afek, Ralph Milman, and Ronen Koubi on January 7, 2020 

and January 14, 2020. In the emails, Perez stated that he needed a rate for a new customer 

below of $[X]. He did not have the authority to set the rate. Perez needed express

permission from management, and he was not allowed to put the rate into the computer 

system. 

62. FBF uses the term “floral department,” and Perez assumes this is to make it 

seem as though there are numerous employees that work in that “department.” 

However, Perez was the only employee of the “floral department” and his primary job 

(approximately 99% of his time) was to sell floral cubes during the relevant time period. 

63. FBF uses the term “sales department.” There was a “sales department,” but 

Perez was not in charge of the employees who worked in sales because all of the other 

sales employees did not sell floral cubes. 

64. Part of Perez’s duties included sales, accounting (calling customers to 

collect invoices, collecting information regarding incorrect invoices), customer service, 

claims (collecting information and passing on the claims forms), dispatching 

(communicating with drivers to help them locate customer’s locations and the warehouse 

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regarding shipments), produce (helping with sales and clients), marketing (he was 

contacted several times by outside firms and passed the contact on to Ari Afek, Ralph 

Milman, or Ronen Koubi), 

65. The other individuals that Perez worked with in the “sales department” 

were customer support persons, not salespersons. 

66. While the customer support persons were his colleagues, Perez did not 

supervise their work and he did not hire or fire any of them. Although Perez may have 

been occasionally asked his opinion regarding their performance, he was not consulted 

when or if they were given raises, disciplined, or were granted days off. 

67. Perez was not in charge of the customer support persons. Their direct 

supervisor was Effie Kaplan.

68. Perez would typically start his day at 5:00 am. His primary duty was to sell 

shipping space and to handle issues regarding complaints from FBF customers. He would

typically spend the vast majority of his time selling and handling customer issues. If there 

was an issue regarding a customer’s shipment, then he was required to report the issue 

to Ralph Milman, Ronin Koubi, Effie Kaplan, and Ari Afek. He would sometimes suggest 

how the problem could be fixed, but the final decision was made by Mr. Milman, Mr. 

Koubi, Ms. Kaplan, or Mr. Afek. 

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69. While employed at FBF, Perez’s primary duty was not “management or 

general business operations,” it was sales and customer service. His sales usually made 

up 60% of the total sales of FBF. 

70. While Perez was an employee at FBF, he did not set management policies 

or policies for the general business operations; he merely followed the polices set by 

management. The polices at FBF for management and general business operations were 

set by Ari Afek, Ronen Koubi, Ralph Milman, and Effie Kaplan. Mr. Koubi, Mr. Milman,

and Ms. Kaplan were all owners of FBF and they were all very hands-on when it came to 

management of the company. All the owners were present at the company and worked

at least five days a week and frequently more. 

71. In fact, Perez was a “manager” only by title and any requests that he had 

for the customer service department needed to be approved/granted by Ari Afek (Manger 

of Human Resources), Ralph Milman (Owner), or Ronen Koubi (Owner). Such requests 

would include hiring of more employees to work in the sales department, decisions 

regarding who was going to be hired, increases in pay for employees, disciplining 

employees, approving timecards, allowing paid and non-paid time off. 

72. Perez was instructed to write schedules for employees who worked with 

him in the sales department (customer support persons). He had very little or no 

discretion on the number of hours each employee was scheduled to work or the days of 

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the weeks that they would work. The final word in approving the schedule(s) was from 

Ari Afek or Ralph Milman. 

73. Perez’s duties did not include the hiring, disciplining, docking of pay, 

firing, creating schedules, approving timecards, overriding lunch break requirements, 

approving paid and non-paid time off, or pay increases for FBF, as stated by Defendants. 

74. The hiring, disciplining, docking of pay, firing, creating schedules, 

approving timecards, overriding lunch breaks, approving paid and non-paid time off,

and pay increases, were not subjects that Perez was consulted about on a regular basis,

and these were not part of his job responsibilities. 

75. Perez did not manage the “Claims, Dispatching, Produce and Marketing 

aspects of the floral department.” These responsibilities were handled by Ralph Milman, 

Ronen Koubi, and Effie Kaplan. While Perez did have frequent customer contact and his 

primary job was to sell space on FBF trucks, he did not have the authority as a manager 

nor did he manage the “Claims, Dispatching, Produce and Marketing aspects of the floral 

department,” as FBF stated. 

76. Because he had been assigned the duty of writing the schedules for the 

sales/customer service department, which were then reviewed by Ralph Milman or Ari 

Afek, it was important that Perez was aware of the days that employees had been 

approved for days off. He signed “Leave of Absence Request” forms to let management 

know that he was aware of the requested days off the employee want to take. Perez did 

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not have the authority to approve or disapprove a “Leave of Absence Request.” The 

decision to approve or disapprove the request was made by Ari Afek, Ralph Milman, or 

Effie Kaplan. 

77. Perez remembers a specific incident/problem that occurred in December 

2019 regarding staffing, overtime, and the warehouse. FBF had not hired enough 

warehouse staff to properly fill the schedule. He had alerted management to issues that 

he had seen due to shipping problems that he learned about through his customers. 

Because Perez was not allowed to hire new employees, the problems continued. FBF was 

cutting the hours of the current warehouse employees due to concerns regarding 

overtime and not hiring new employees due to labor costs. Even though Perez was 

directed to write the employee schedules for the customer service employees, he was not 

writing any schedules for the warehouse employees, as FBF claims he was doing. The

hiring of employees and the warehouse schedules were the responsibility of Ari Afek or 

whomever he assigned those duties to. If Perez had been allowed to hire employees and 

the discretion to set schedules, then he would have kept the staff levels where the 

company needed them to be or scheduled more employees to work (even overtime) so as 

to keep up with the workload. 

78. Perez remembers another issue regarding staffing for the warehouse in 

January 2020. Yanela Rodriguez was responsible for writing the warehouse schedule and 

Ari Afek would approve it. There were issues with not enough employees overnight that 

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could handle the loading of trucks. Mr. Afek told Ms. Rodriguez how to schedule the 

employees and why it was necessary. Perez was not responsible for scheduling the 

warehouse employees, as FBF claims. 

79. Emails filed in the record show that Perez had to ask for permission to 

change the rate of shipping. The email to Ari Afek shows that he was asking Ari to change 

the rate in the computer system because Perez was not allowed access to change the rate. 

On one page of the emails, Perez asks, “Can we move them down to $[X]?” If Perez had 

been allowed to set the rates, why was he asking for permission to set a rate? 

80. Perez was a “manager” only by title. He did not have the discretion to set 

shipping prices. For example, in some emails he asks, “Can we move them down to 

$[X]?”; “Did we ok the rate?”; or states, “Ari or Ronen need rate for new customer below.” 

Perez did not have the authority to hire or fire employees and he did not have access to 

input the rates into the computer system. 

81. Perez was required to follow the FBF rules and policies, which included 

reporting incidents where there were delivery issues. Perez was instructed to report these 

issues to Ari Afek, Ronin Koubi, and Ralph Milman. He was not allowed to make 

decisions regarding incident(s). Those decisions were made by Mr. Afek, Mr. Koubi, and 

Mr. Milman. 

82. Perez remembers asking if “Brian” could be hired, but the decision to either 

hire Brian or to not hire Brian was made by Ari Afek and not Perez.

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83. The decision to “terminate Carlos” was made by Ari Afek, and not Perez. 

After Mr. Afek told Perez that Carlos would be fired, Perez sent an email to Mr. Afek,

asking him who was going to tell Carlos. Perez needed Carlos’ last day to be Friday for 

purposes of the schedule. 

84. Another email shows Perez asking Ari Afek and Effie Kaplan when they 

were going to hire new people, which demonstrates that Perez did not have the ability to 

hire new employees. 

85. In another email, Perez asked if “Brian” could be hired. However, the 

decision to either hire Brian or to not hire Brian was made by Ari Afek and not Perez

86. The decision to “terminate Carlos” was made by Ari Afek, and not Perez. 

After Mr. Afek told Perez that Carlos would be fired, Perez sent an email to Mr. Afek, 

asking him who was going to tell Carlos. Perez needed Carlos’ last day to be Friday for 

purposes of the schedule. 

87. An email shows Perez asking Ari Afek and Effie Kaplan when they are 

going to hire new people and it demonstrates that Perez did not have the ability to hire 

new employees.8

8 The Undersigned realizes that paragraphs 82 -84 are repeated in paragraphs 85-

87, but that is how they were written in Perez’s Additional facts. Presumably, FBF would 

have spotted that and mentioned it in a Reply Statement of Material Facts.

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88. An email exchange shows that Ari Afek was the person who “let go” of 

Carlos. Perez reported Carlos’ behavior to Mr. Afek, but he did not participate in the 

decision to terminate Carlos’ employment. That decision was made by Mr. Afek. The 

portion of the email where Perez states, “If not I will let him go,” is the same as another 

email where he was asked Mr. Afek who should let Carlos know. 

89. Based on an email, Perez remembers that Mr. Afek asked him about the 

schedule after he before he approved it.9 This email is Perez explaining to Mr. Afek the 

changes so he would approve it. The second part of the email shows that Mr. Afek was 

the person who interviewed prospective employees (“strong resume”). Perez did not 

interview prospective employees, but he did meet several that were introduced to him

while he was at work in the office. Perez was not given their resume or their application 

to review. 

90. On another page in an email, Perez asked Ari Afek to clock in an employee 

due to a time clock issue. He did not have access to the time keeping system. Only 

managers had access to the time keeping system. 

91. According to another page in an email filed on this record, Perez was 

required to follow the FBF rules and policies, which included reporting incidents where 

9 The Undersigned acknowledges that ‘before” and “after” are inconsistent, but this 

is the format Perez used for this paragraph in his additional facts. Had FBF served the 

required Reply Statement of Material Facts, it could have flagged this inherent 

inconsistency.

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there were delivery issues. Perez was to report these issues to Ari Afek, Ronin Koubi, and 

Ralph Milman. Perez took pride in his work. When he referred to “we,” he meant the 

company because he felt as if he was a part of the company. He did not have the power 

to discipline, suspend, or dock the pay of any FBF employees. 

92. As noted on another page of an email filed on the docket, while it was the 

policy of FBF to require employees to clock in and clock out, which included Perez, he 

was never disciplined for not clocking in or clocking out (even though he was asked to 

clock in and out). 

93. On another page in an email, Perez was informed by Ari Afek that if an 

employed worked through lunch, that employee needed to be paid for the time, and that 

Perez should share this information with the customer service employees. This email 

shows that Perez was letting the other employees in the customer service department 

know what Mr. Afek informed him of this, and that if they work through lunch, they 

should be paid for their time. Perez did not set this policy; he only repeated what he was 

told. 

94. Juan Vargas and Hanan both worked as supervisors in the warehouse and 

were responsible for scheduling their employees. The warehouse employees did not 

work in the same department as Perez. Juan and Hanan were asked in an email to please 

schedule more employees on Sunday, so the floral shipments were not delayed. Perez

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was following FBF protocol by copying Ari Afek and Ronen Koubi, who made the 

decision regarding scheduling. 

95. An email shows that it was Ari Afek who had control over the schedules, 

and he came and spoke with two customer service employees regarding their workdays 

and overtime hours. This upset the employees because both had been working extremely 

hard and long hours because Mr. Afek would not hire any additional employees. In the 

end of the email, he states that the “[s]hortage of personnel and over working myself is 

one of the reasons in which I gave my resignation.” If Perez had been given the 

responsibility to hire people, he would have hired several more, but he was not allowed. 

Mr. Afek ignored Perez’s requests to hire more customer service employees. If Perez had 

the ability to schedule employees for overtime, he would have done so, and the 

employees would have gladly worked and been paid time and a half. However, Mr. Afek 

was one of the persons who had final say regarding schedules, not Perez. 

96. In an email, Perez asked Ari Afek about a raise he had decided to give to 

one of the customer service employees. Perez informed Mr. Afek that Yudmila had 

started working on produce with Javier. Because Yudmila was taking on extra 

responsibilities, it was decided by Mr. Afek (and Perez agreed with his decision) to give 

her a raise. 

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97. In an email, Perez requested that the raise be made retroactive since she had 

been taking on the new responsibilities for more than a week, and it was Mr. Afek’s 

decision whether it would be retroactive. 

98. In an email, Ari Afek decided to give Yudmila (Gonzalez) a raise, and Perez

was reminding Mr. Afek about his decision. 

99. Several emails show that Perez was following company policy and not 

making any independent decisions regarding days off or employees coming late/not 

coming in. He did not set the policies, nor did he make decisions regarding how the 

policies were going to be enforced or not enforced regarding days off, sick days, or 

employees coming in late or not at all. 

100. An email regarding Mike Fernandez not coming in shows that Effie is 

aware of the issue. She needed to be made aware because she was running the office for 

customer service, not Perez. 

101. It was the policy of FBF that employees who worked in the customer service 

area let Perez know that they were requesting time off (for various reasons). Perez signed 

the “Leave of Absence Request” to acknowledge that they were requesting the time off 

so he could make whatever changes to the schedule that needed to be made. He did not 

have the authority to grant or deny any of the requests. The authority to grant or deny 

the request(s) was made by the FBF HR department. 

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102. An email shows that Perez was not allowed to make decisions regarding 

days off without permission from FBF’s HR official, Ari Afek. 

103. Other emails show that Perez was doing what he had been instructed to do 

when problems arose during deliveries; reporting the issues to Ari Afek, Ralph Milman,

and Ronen Koubi. He was not in charge of any of the employees at FBF, and he was not 

in charge of the independent contractors either. However, it was a part of Perez’s duties 

to pass on the customer complaints regarding floral deliveries. Passing on the complaints 

to the management team was the policy at FBF. Of course, Perez made suggestions on 

how to solve several issues, but he was not given the authority to make the final 

decision(s). 

104. An email shows that Perez was following set FBF procedures by notifying 

Ralph Milman and Ronen Koubi after a customer complained about an incident 

regarding FBF drivers taking pallets. 

105. In an email from Perez to Ronen Koubi regarding dust in the workspace. 

Koubi (on the bottom of the page) asked Carlos, “Why the delay?” Perez was only 

reporting the issue as per FBF set procedures and he did not have the authority to fix the 

issue; Mr. Koubi was asking Carlos why the issue had not been fixed. 

106. An email shows that Perez was following set FBF procedures by notifying 

Ralph Milman, Ronen Koubi, Ari Afek, and several others after a customer complained 

about deliveries. He did not have the authority to dock the drivers’ pay so Perez

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suggested to Ari Afek and Silvio Chavez that the drivers (independent contractors) not 

be paid for the stops and for what FBF had to pay the other crew to fix the issue. 

107. An email shows that Perez was passing on the set policies of FBF to the 

other employees/departments as he was directed to do by Ralph Milman, Ronen Koubi, 

Effie Kaplan, and Ari Afek. Perez did not set these polices, that was done by the owners 

of FBF. Perez followed the set policies of FBF, and he did not make policies. 

108. Perez did not direct the work of any other employees at FBF. 

III. Applicable Legal Principles

A. Summary Judgment

Summary judgment is appropriate “if the pleadings, depositions, answers to 

interrogatories, and admissions on file, together with the affidavits, if any, show that 

there is no genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997)

(citation omitted). Thus, the Court may enter summary judgment “against a party who 

fails to make a showing sufficient to establish the existence of an element essential to that 

party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp.

v. Catrett, 477 U.S. 317, 322 (1986).

The moving party must “show the district court, by reference to materials on file, 

that there are no genuine issues of material fact that should be decided at trial.” Clark v.

Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). If the movant does so, then “the 

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burden shift[s] to the non-moving party to demonstrate that there is indeed a material 

issue of fact that precludes summary judgment.” Id. A genuine factual dispute exists “if 

the evidence is such that a reasonable jury could return a verdict for the non-moving 

party.” Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1358 (11th Cir. 1999). The 

opposing party must proffer more than “a mere scintilla of evidence” to show “that the 

jury could reasonably find for that party.” Abbes v. Embraer Servs., Inc., 195 F. App’x 898,

899-900 (11th Cir. 2006) (internal quotations omitted).

When deciding whether summary judgment is appropriate, the Court views all 

facts and resolves all doubts in favor of the nonmoving party. Feliciano v. City of Miami

Beach, 707 F.3d 1244, 1247 (11th Cir. 2013) (affirming order denying defendant’s summary

judgment motion on qualified immunity because of factual issue). And when conflicts 

arise between the facts evidenced by the parties, courts must “credit the nonmoving 

party’s version.” Id. at 1252.

If there are any factual issues, then the Court must not decide them; it must deny 

the summary judgment motion, and the case then proceeds to trial. See Whelan v. Royal 

Caribbean Cruises Ltd., No. 1:12CV-22481, 2013 WL 5583970, at *2 (S.D. Fla. Aug. 14, 2013) 

(citing Envt’l. Def. Fund v. Marsh, 651 F.2d 983, 991 (5th Cir. 1981)). The Court cannot 

weigh conflicting evidence to resolve factual disputes. See Skop v. City of Atlanta, Ga., 485 

F.3d 1130, 1140 (11th Cir. 2007) (citation omitted) (reversing in part summary judgment). 

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Even when the parties “agree on the basic facts, but disagree about the inferences 

that should be drawn from these facts,” summary judgment “may be inappropriate.” 

Whelan, 2013 WL 5583970, at *2. See generally Johnson v. NCL (Bahamas) Ltd., No. 16-21762, 

2017 WL 1293770, at *2 (S.D. Fla. Feb. 3, 2017) (denying summary judgment motion in 

passenger’s slip and fall lawsuit against cruise ship operator).

Our Circuit does not hesitate to reverse orders improvidently granting summary 

judgment motions, and has noted that “even if a district court ‘believes that the evidence 

presented by one side is of doubtful veracity, it is not proper to grant summary judgment 

on the basis of credibility choices.’” Feliciano, 707 F.3d at 1252 (citing Miller v. Harget, 458

F.3d 1251, 1256 (11th Cir. 2006)).

Moreover, “as a general principle, a plaintiff’s testimony cannot be discounted on 

summary judgment unless it is blatantly contradicted by the record, blatantly 

inconsistent, or incredible as a matter of law, meaning that it relates to facts that could 

not have possibly been observed or events that are contrary to the laws of nature.” 

Feliciano, 707 F.3d at 1253.

The Undersigned is discussing the significance of a plaintiff’s testimony because 

Perez submitted a declaration (and declarations from former FBF employees). Perez’s 

declaration, of course, can be classified as “self-serving,” but that alone is insufficient to 

ignore it.

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First, most, if not all, affidavits are self-serving. That is why they are being filed. A 

litigant would not typically file an affidavit which supports the opponent’s position. 

Second, a court cannot simply discredit or disbelieve an otherwise adequate affidavit 

merely because it is self-serving. See United States v. Stein, 881 F.3d 853, 857 (11th Cir. 

2018) (finding that the “self-serving statements” that a litigant sets forth in an 

affidavit “can defeat summary judgment” but a conclusory affidavit cannot defeat 

summary judgment).

If, on the other hand, an affidavit consists solely of conclusory and/or unsupported 

allegations, then they will not defeat an otherwise sufficient summary judgment motion. 

See Alvarez v. City of Miami Beach, No. 18-CV-22743-UU, 2019 WL 11583396, at *6 (S.D. Fla. 

Mar. 25, 2019) (citing Stein, 881 F.3d at 857) (finding that even though a self-serving, 

uncorroborated affidavit may, at times, defeat summary judgment, “[a]n affidavit cannot 

be conclusory”); see also Wells v. Cramer, 262 F. App’x 184, 187 (11th Cir. 2008) (citing 

Sammons v. Taylor, 967 F.2d 1533, 1544 n.5 (11th Cir. 1992)) (“Though the facts alleged in 

an inmate’s sworn pleading are sufficient to defeat a motion for summary judgment and 

a separate affidavit is not necessary, mere conclusions and unsupported factual 

allegations are legally insufficient to defeat summary judgment.”).

10

10 FBF is critical of Perez’s declaration, but it has not filed a motion to strike it. Even 

if it had done so, however, it is far from clear that such as motion would have succeeded. 

See Meyer v. Carnival Corp., No. 12-20321-CIV, 2013 WL 10154313, at *1 (S.D. Fla. Jan. 17, 

2013) (denying defendant’s motion to strike affidavit of defendant’s employee, Jacques, 

which argued that the affidavit “was manipulated by Plaintiff solely to defeat the entry 

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B. The FLSA Exemptions

i. General Principles

As highlighted in Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1269 (11th Cir. 

2008), the Eleventh Circuit has recognized the “Supreme Court’s admonition that courts 

closely circumscribe the FLSA’s exceptions.” Nicholson v. World Bus. Network, Inc., 105 

F.3d 1361, 1364 (11th Cir. 1997). Moreover, an exemption “is to be applied only to those 

clearly and unmistakably within the terms and spirit of the exemption.” Id. (citing Brock 

v. Norman’s Country Market, Inc., 835 F.2d 823, 826 (11th Cir. 1988)) (quotation marks 

omitted). Therefore, the federal courts in our Circuit “narrowly construe exemptions to 

the FLSA overtime requirement.” Id. at 1269. 

ii. The Administrative Employee Exemption

The FLSA requires an employer to pay an employee for overtime pay if he or she 

works more than 40 hours in a week. See 29 U.S.C. § 207(a)(1) (2020). The Act, however, 

exempts from this requirement “any employee employed in a bona fide . . . administrative 

. . . capacity.” 29 U.S.C. § 213(a)(1). 

The Department of Labor (“DOL”) has promulgated regulations and guidance that 

interprets and explains, respectively, this exemption. See 29 C.F.R. § 541.200, et seq. (2020); 

of summary judgment,” because the affidavit merely sets forth Jacques’ personal 

knowledge and observations regarding the period of time in which he was employed by 

Defendant Carnival). 

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U.S. Dep’t of Labor, Fact Sheet #17c: Exemption for Administrative Employees Under the Fair 

Labor Standards Act (FLSA) (Sept. 2019), available at https://www.dol.gov/sites/

dolgov/files/WHD/legacy/files/fs17c_administrative.pdf (hereinafter “Fact Sheet # 17C”). The 

DOL’s regulations state that an employee qualifies as an administrative employee if: 

1. The employee is compensated on a salary basis at a rate of at least $684 per 

week;

2. The employee’s primary duty is the performance of office or non-manual 

work related to the management or general business operations of the employer or its 

customers; and

3. The employee’s primary duty includes the exercise of discretion and 

independent judgment regarding matters of significance. 29 C.F.R. § 541.200(a) (2020); see 

also 29 C.F.R. §541.2 (2020) (“A job title alone is insufficient . . . the exempt or nonexempt 

status of any particular employee must be determined on the basis of whether the 

employee’s salary and duties meet the requirements of the regulations in this part.”).

iii. The Executive Employee Exemption

The FLSA provides for an executive employee exemption that applies to “any

employee employed in a bona fide executive . . . capacity.” 29 U.S.C. § 213(a)(1). 

The DOL’s regulations and guidance on this exemption is similarly outlined in the 

Code of Federal Regulations and in Fact Sheet # 17B. See 29 C.F.R. § 541.100, et seq. (2020); 

U.S. Dep’t of Labor, Fact Sheet #17B: Exemption for Executive Employees Under the Fair Labor 

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Standards Act (FLSA) (Sept. 2019), available at https://www.dol.gov/

sites/dolgov/files/WHD/legacy/files/fs17b_executive.pdf (hereinafter “Fact Sheet # 17B”). 

The DOL’s regulations state that an employee qualifies as an executive employee if:

1. The employee is compensated on a salary basis at a rate of at least $684 per 

week;

2. The employee’s primary duty is management of the enterprise or a 

customarily recognized department or subdivision of the enterprise;

3. The employee customarily and regularly directs the work of two or more 

other employees; and

4. The employee has the authority to hire or fire other employees or whose 

suggestions and recommendations as to the hiring, firing, advancement, promotion or 

any other change of status of other employees are given particular weight.

See 29 C.F.R. § 541.100(a) (2020).

The Eleventh Circuit has rejected a “categorical approach” to deciding whether an 

employee is an exempt executive. See Morgan, 551 F.3d at 1269 (affirming jury verdict 

finding that Family Dollar failed to meet its burden to prove that store managers were 

not exempt executives and noting that managers spent 80 to 90% of their time performing 

nonexempt manual labor). Instead, our appellate court has noted the “necessarily factintensive nature of the primary duty inquiry,” that “the answer is in the details,” and that 

“[w]here an issue turns on the particular facts and circumstances of a case, it is not 

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unusual for there to be evidence on both sides of the question, with the result hanging 

in the balance.” Id. (emphasis added). And “[t]he result reached must be left intact if there 

is evidence from which the decision maker, the jury in this instance, reasonably could 

have resolved the matter the way it did.” Id.

iv. The Highly Compensated Employee Exemption

Under the FLSA, employees that earn at least $107,432 in total annual 

compensation and perform any one or more of the exempt duties of an executive or 

administrative employee are exempt from the Act. See 29 C.F.R. § 541.601 (2020)

(emphasis added). Generally, the year for annual compensation purposes is considered 

the 52-week calendar year, unless otherwise defined by an employer. 29 C.F.R. § 

541.601(b)(2) (2020).

IV. Analysis

As an overarching observation, the Undersigned notes that FBF may well be able 

to demonstrate at trial that Perez is exempt from the FLSA’s overtime pay requirements. 

Perhaps a jury might not deem credible his explanations about why he sent certain emails 

that could make it appear as though he was exercising management authority or 

engaging in discretionary decisions. Or maybe a jury would accept his comments about 

the context in which the emails were drafted. And a jury could accept some of his 

explanations and reject others. These jury evaluations of Perez’s explanations (and of 

testimony which will presumably be offered by the same former employees who signed 

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declarations to support Perez’s opposition to the summary judgment motion) will, 

naturally, involve conclusions about credibility.

Juries make those types of credibility assessments in every trial; a Court cannot do 

so in a summary judgment context. See, e.g., Mandell v. Fulford, No. 08-61630, 2010 WL 

11505544 (S.D. Fla. Feb. 17, 2010) (denying employer’s summary judgment motion 

because of credibility-generated material factual issues concerning purported executive 

and administrative exemptions under the FLSA); Partridge v. Mosley Motel of Saint 

Petersburg, Inc., No. 8:15-cv-936, 2016 WL 70705, at *9 (M.D. Fla. Jan. 6, 2016) (denying 

employer’s summary judgment motion in an FLSA case and noting that the court “must 

avoid weighing conflicting evidence or making credibility determinations on summary 

judgment”); Martinez v. Cancun Grill, Inc., No. 08-23362, 2009 WL 10667190, at *2 (S.D. Fla. 

Sept. 3, 2009) (denying employer’s summary judgment motion in an FLSA lawsuit, noting 

that a judge cannot “weigh the credibility of the parties on summary judgment” and 

emphasizing that “if the determination of the case rests on which competing version of 

the facts or events is true, the case should be submitted to the trier of fact”). 

The possibility that Perez is exempt but provided incorrect, skewed, or misleading 

explanations is not, of course, the issue here. Instead, the issue is whether FBF has 

demonstrated an absence of genuine material fact on the purported FLSA exemptions. 

And that answer is “no.”

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A. The Administrative Exemption

Perez does not challenge FBF’s point that he met the first prong (of being paid 

more than $684 per week). But he contends that factual disputes prevent FBF from 

obtaining summary judgment on the second prong (whether his primary duty was 

management) and the third prong (whether he had discretion and used independent 

judgment).

Perez points to evidence suggesting that he was a “production” employee whose 

primary duty was sales, not management. There is record evidence to support Perez’s 

view of his duties. He worked in the sales department and his primary duties were nonphysical labor. The “Floral Department” were he worked was not an actual department 

because it was a subgroup of the “Sales Department.” He was the only employee who 

worked in the Sales Department.

According to Perez, his “manager” title was a title in name only, as he did not have 

the authority of an actual manager. FBF disagrees, to be sure, but this factual tension is 

what lawsuits are all about. The Undersigned is not going to completely credit FBF’s view 

of Perez’s duties and completely reject Perez’s version. To the extent that FBF relies on 

specific evidence (such as Perez’s schedule-writing for employees), Perez has an 

explanation (such as the point that others had the final decision about approving the 

schedules). Some of his duties may have been management related, but there is evidence 

to confirm Perez’s interpretation of his duties as primarily production related.

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Under these circumstances, the Undersigned cannot safely recommend that Perez 

be classified as exempt under the administrative exemption because there is a dispute 

over the second prong. See Martin v. Cooper Elec. Supply Co., 940 F.2d 896 (3d Cir. 1991)

(affirming trial court’s conclusion that employees were not administrative, noting with 

approval the trial court’s observation that Defendant’s business “is the sale of electrical 

products” and that its “primary business purpose . . . is to produce sales of electrical 

products” and holding that inside salespersons may be classified as “production” 

workers); Schnepf v. Bros. Auto Salvage Yard, Inc., No. 1:10-CV-0316-TAB-JMS, 2012 WL

442331, at *4 (S.D. Ind. Feb. 10, 2012) (“In this case, Schnepf’s primary job duty was to sell

automotive parts to individual customers, which is nonexempt work. Brothers has not 

satisfied its burden of showing that Schnepf’s primary job duty consisted of the 

performance of office or nonmanual work directly related to management policies or 

general business operations of his employer.”); Palacios v. Boehringer Ingelheim Pharm., 

Inc., 814 F. Supp. 2d 1357, 1365 (S.D. Fla. 2011) (finding that defendant failed to 

demonstrate that Plaintiff’s role was directly related to the management or general 

business operations of the employer and noting that Plaintiff “never performed any work 

in the functional areas of tax, finance, accounting, auditing, advertising, research and 

development, personnel management, human resources, labor relations, government 

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relations, or information technology”).11

Similarly, the Undersigned cannot recommend that Judge Moreno enter summary 

judgement in FBF’s favor for yet another reason: there is a genuine factual dispute over 

the third prong of the administrative exemption.

29 C.F.R. § 541.202 provides in part:

(a) To qualify for the administrative exemption, an employee’s 

primary duty must include the exercise of discretion and independent

judgment with respect to matters of significance. In general, the exercise

of discretion and independent judgment involves the comparison and the

evaluation of possible courses of conduct, and acting or making a

decision after the various possibilities have been considered. The term

“matters of significance” refers to the level of importance or consequence of

the work performed.

(b) The phrase “discretion and independent judgment” must be 

applied in the light of all the facts involved in the particular employment 

situation in which the question arises. Factors to consider when 

determining whether an employee exercises discretion and independent 

judgment with respect to matters of significance include, but are not 

limited to: whether the employee has authority to formulate, affect, 

interpret, or implement management policies or operating practices; 

whether the employee carries out major assignments in conducting the 

operations of the business; whether the employee performs work that 

affects business operations to a substantial degree, even if the employee’s 

11 29 CFR § 541.201(b) provides that “work directly related to management or general 

business operations includes, but is not limited to, work in functional areas such as tax; 

finance; accounting; budgeting; auditing; insurance; quality control; purchasing; 

procurement; advertising; marketing; research, safety and health; personnel 

management; human resources; employee benefits; labor relations; public relations; 

government relations; computer network, internet and database administration; legal 

and regulatory compliance; and similar activities.” FBF has not established that Perez was 

primarily involved in any of these areas. Indeed, it has not demonstrated that Perez was 

involved in these areas in any way. 

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assignments are related to operation of a particular segment of the business; 

whether the employee has authority to commit the employer in matters 

that have significant financial impact; whether the employee has 

authority to waive or deviate from established policies and procedures 

without prior approval; whether the employee has authority to negotiate 

and bind the company on significant matters; whether the employee 

provides consultation or expert advice to management; whether the 

employee is involved in planning long or short-term business objectives; 

whether the employee investigates and resolves matters of significance 

on behalf of management; and whether the employee represents the 

company in handling complaints, arbitrating disputes or resolving 

grievances.

Id. (emphasis added).

Using an objective prism to look at whether Perez performed any of the duties set 

forth in subsection (b) above, the Undersigned finds that the only conclusion is that there 

is evidence to suggest that he performed a few of the duties but also evidence to suggest 

that he did not. To the extent that he performed any of the duties, he can point to evidence 

suggesting that his actions and decisions were subject to review and approval by others 

in the company or that he was merely carrying out FBF’s policies. See Barnes v. Frameless 

Shower Doors & Enclosures, Inc., No. 14-CIV-62243, 2015 WL 11201195, at *6 (S.D. Fla. May 

6, 2015) (denying defendant’s motion for summary judgment regarding administrative 

exemption where material issues of fact existed as to the plaintiff’s responsibilities under 

the third prong of the test); see also Alvarez v. Key Transp. Serv. Corp., 541 F. Supp. 2d 1308, 

1313-14 (S.D. Fla. 2008) (noting that “matters of significance” include responsibilities 

dealing with matters of broad scope and significant detail that have a profound effect on

an employer’s business,” not simply trivial discretionary matters).

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B. The Executive Exemption

Perez was in fact paid more than $684 per week, so the first prong of the executive 

exemption is met. But there is a dispute about second, third, and fourth factors: whether 

his primary duty was management; whether he customarily and regularly directed the 

work of two or more other employees; and whether he had the authority to hire or fire 

other employees, or whether his suggestions or recommendations about the hiring, firing, 

advancement, promotion, or other change of status of other employees were given 

particular weight.

The Undersigned adopts the earlier discussion and analysis about whether Perez’s 

primary duty was management, as opposed to sales -- and whether he was an employee 

involved in production, as opposed to administration.

In addition, the Undersigned also looks to applicable federal regulations for 

additional guidance. Specifically, 29 C.F.R. § 541.102 (management) lists factors to 

consider when determining if an employee is primarily involved in management:

Generally, “management” includes, but is not limited to, activities such as 

interviewing, selecting, and training of employees; setting and adjusting 

their rates of pay and hours of work; directing the work of employees; 

maintaining production or sales records for use in supervision or control; 

appraising employees’ productivity and efficiency for the purpose of 

recommending promotions or other changes in status; handling employee

complaints and grievances; disciplining employees; planning the work; 

determining the techniques to be used; apportioning the work among the 

employees; determining the type of materials, supplies, machinery, 

equipment or tools to be used or merchandise to be bought, stocked and 

sold; controlling the flow and distribution of materials or merchandise and 

supplies; providing for the safety and security of the employees or the 

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property; planning and controlling the budget; and monitoring or 

implementing legal compliance measures.

See 29 C.F.R. § 541.102.

Although there is some evidence in the record to suggest that Perez performed 

some of the duties listed in the regulation, there is also evidence to suggest otherwise. For 

example, FBF says that Perez established work schedules, which seems to be in the 

“setting and adjusting their rates of pay and hours of work” category. But Perez’s 

declaration explains that he did not actually set the hours; he was “instructed” to write 

schedules for customer support employees and had “very little or no discretion on the 

number of hours each employee was scheduled to work or the days of the weeks they 

would work.”

In Morgan v. Family Dollar, the Court was not swayed by Defendant’s position that 

the plaintiffs were classified as store managers who were “in charge” of the stores because 

an individual analysis illustrated that the managers had “few, and infrequently exercised, 

discretionary powers.” 551 F.3d at 1271-72. For current purposes (i.e., deciding whether 

FBF met its burden of establishing the executive exemption in a summary judgment 

motion context), the Undersigned notes that Morgan v. Family Dollar highlighted the 

existence of “evidence on both sides of the question,” which gave the jury authority to 

resolve the matter in the way it did. Id. at 1273.

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So the mere fact that Perez may have sometimes referred to himself as a “manager”

does not automatically mean that he was a manager and that no other interpretation is 

factually available.

Concerning the involved-in-management prong, the Undersigned approves and 

adopts the earlier discussion and recommends that Judge Moreno reject FBF’s argument 

that it adequately proved, without the existence of factual disputes, that Perez was 

involved in management.

The Undersigned respectfully recommends that Judge Moreno deny summary 

judgment in FBF’s favor on the executive exemption for another reason: there is a factual 

dispute over FBF’s contention that Perez customarily and regularly directed the work of 

two or more other employees.

Once again, this analysis turns to an applicable regulation, 29 C.F.R. § 541.70, 

which provides:

The phrase “customarily and regularly” means a frequency that must be 

greater than occasional but which, of course, may be less than constant. 

Tasks or work performed “customarily and regularly” includes work 

normally and recurrently performed every workweek; it does not include 

isolated or one-time tasks.

(emphasis added).

FBF has submitted some emails in which Perez gave instructions to a few other 

employees. But a few instructions over a multi-year term may not necessarily be sufficient 

to reach the required level of “customarily and regularly.” When combined with Perez’s 

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declaration (in which he advised that he has not in charge of the employees who worked 

in sales because all of the other salespeople did not sell floral cubes) and the limited 

number of emails, there is a factual dispute about Perez’s relationship with other 

employees and whether he customarily and regularly directed them.

FBF has also not established an absence of a factual dispute concerning the final, 

fourth prong of the test for the executive exemption: whether Perez had authority to hire 

or fire other employees (or if his suggestions and recommendations were given particular 

weight).

Perez’s declaration asserted several relevant points and they were all made in a 

forceful, relatively unequivocal way: 

Perez did not have the discretion to set schedules without the approval of Ari Afek 

or Ralph Milman; he did not hire employees and did not have any say in their pay rates, 

pay raises, and their effective dates and disciplinary review(s); Plaintiff did not hire or 

interview prospective employees aside from meeting them, therefore, Defendants’ 

assertion that they gave Plaintiff great weight is false; Plaintiff did not recommend firing 

or transfers out of “Plaintiff’s sales department”; Perez followed the FBF policies in 

reporting days off, employees not coming in, employees being tardy; Perez did not have 

the authority to give employees a “leave of absence”; Plaintiff drafted the schedule, but 

the schedule would have to be approved by Ralph Milman or Ari Afek. 

As noted, FBF has not properly responded to the statement listed in the preceding 

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paragraph (which was in Perez’s additional facts). But even if FBF had responded by 

serving a Reply Statement of Material Facts, that would have simply generated a formal 

and appropriate response demonstrating that the factors surrounding the purported 

executive exemption are, in fact, disputed. And that would have likewise caused the 

Undersigned to recommend that FBF’s motion be denied on the executive exemption. See 

Altman v. Sterling Caterers, Inc., 879 F. Supp. 2d 1375, 1383 (S.D. Fla. 2012) (denying motion 

for summary judgment on executive exemption under FLSA because material issue of 

fact existed as to whether the plaintiff had the power to hire and fire employees).

C. Highly Compensated Employee

Although Perez concedes that he meets the financial prong of the highly 

compensated employee exemption, FBF has not established for summary judgment 

purposes that he customarily and regularly performed one of the exempt duties or 

responsibilities of an executive or administrative employee. As a result, summary 

judgment in FBF’s favor is unavailable. See Pierce v. Wyndham Vacation Resorts, Inc., No. 

3:13-CV-641-CCS, 2017 WL 4480199, at *7 (E.D. Tenn. Oct. 6, 2017) (denying employer’s 

summary judgment motion on highly compensated employee exemption because of 

factual dispute concerning plaintiff’s duties).

V. Conclusion

The Undersigned respectfully recommends that Judge Moreno deny FBF’s 

summary judgment motion. Given the differing interpretations of the relevant facts and 

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FBF’s failure to respond to Perez’s allegedly undisputed facts, the scenario here “presents 

a classic swearing match, which is the stuff of which jury trials are made.” Feliciano, 707 

F.3d at 1253 (affirming on interlocutory appeal an order denying police officer’s summary 

judgment motion based on alleged qualified immunity).

This does not mean that Perez was not an exempt employee. Rather, it means only 

that FBF is not entitled to summary judgment on the exemptions because factual disputes 

render the requested ruling unavailable. If the case goes to trial, then the jury will be able 

to assess Perez’s credibility and determine whether he or FBF executives are more 

believable on the exemption factors.

VI. Objections

The parties shall have ten calendar days from the date of this report to file written 

objections, if any, with the District Judge. Each party may file a response to the other 

party’s objection within ten calendar days from the date of the objection.12 Failure to 

timely file objections shall bar the parties from a de novo determination by the District 

Judge of an issue covered in the report, and shall bar the parties from attacking on appeal 

unobjected-to factual and legal conclusions contained in this report, except upon grounds 

of plain error and if necessary in the interest of justice. See 28 U.S.C. § 636(b)(1); Thomas v. 

12 The Undersigned is shortening the time in which the parties have to file objections 

and responses because of the upcoming trial date and because the issues are common 

ones in FLSA litigation.

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Arn, 474 U.S. 140, 149 (1985); Henley v. Johnson, 885 F.2d 790, 794 (11th Cir. 1989); 11th Cir. 

R. 3-1 (2016).

RESPECTFULLY RECOMMENDED in Chambers, in Miami, Florida, on March 

24, 2021.

Copies furnished to:

The Honorable Federico A. Moreno

All Counsel of Record

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