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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

Case No. 1:20-cv-22162-JEM

JULIO LEE HERNANDEZ,

Plaintiff/Counter-Defendant,

vs.

GALENOS MEDICAL CENTER CORP., 

and MARIA C. ELOY,

Defendants/Counter-Plaintiffs.

___________________________________/

DEFENDANTS’ RESPONSE TO PLAINTIFF’S STATEMENT OF CLAIM

Defendants Galenos Medical Center Corp. and Maria C. Eloy, by their undersigned counsel 

and pursuant to the Court’s Notice of Court Practices in FLSA Cases of September 2, 2020, hereby 

file their Response to Plaintiff Julio Lee Hernandez’s Statement of Claim, and state as follows:

I. Total Amount of Alleged Unpaid Wages:

A. OVERTIME:

a. Total amount of alleged half-time unpaid O/T wages: zero.

b. Calculation of wages: as described in the chart below, Plaintiff was overpaid by at least 

$2,282.44. [us, there is no overtime owed to Plaintiff.1

Pay Period Rate OT Prepaid OT Worked Difference Overpayment

11/23/18 - 12/06/18 $16.50 9 0.50 8.50 $140.25

01/19/19 - 02/01/19 5 4 1 $16.50

1 It is important to note that even assuming that there was unpaid overtime, Plaintiff bases his 

calculation on a $12.5 an hour rate. However, Plaintiff was not paid $12.5 an hour during the entire 

period he worked from Defendant. From 11/16/18 to 3/29/19, Plaintiff had a rate of $11 an hour. 

From 3/30/19 to 1/3/2020, Plaintiff had a rate of $12 an hour. Only starting on 2/7/2020 until 

4/24/2020, Plaintiff had a rate of $12.50 an hour, as stated in Plaintiff’s Statement of Claim. [D.E. 

15]. 

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02/16/19 - 03/01/19 5 0 5 $82.50

03/02/19 - 03/15/19 5 0 5 $82.50

03/16/19 - 03/29/19 5 0 5 $82.50

03/30/19 - 04/12/19

$18

5 0 5 $90.00

04/13/19 - 04/26/19 5 0 5 $90.00

04/27/19 - 05/10/19 5 0 5 $90.00

05/11/19 - 05/24/19 5 0.25 4.75 $85.50

05/25/19 - 06/07/19 5 0 5 $90.00

06/08/19 - 06/21/19 5 0 5 $90.00

06/22/19 - 07/05/19 5 0 5 $90.00

07/06/19 - 07/19/19 5 0.75 4.25 $76.50

07/20/19 - 08/02/19 5 1.25 3.75 $67.50

08/03/19 - 08/16/19 5 1.25 3.75 $67.50

08/17/19 - 08/30/19 5 0 5 $90.00

08/31/19 - 09/13/19 4 1 3 $54.00

09/14/19 - 09/27/19 5 0 5 $90.00

09/28/19 - 10/11/19 5 0 5 $90.00

10/12/19 - 10/25/19 5 0 5 $90.00

10/26/19 - 11/08/19 5 0 5 $90.00

11/09/19 - 11/22/19 5 0 5 $90.00

11/23/19 - 12/06/19 5 0 5 $90.00

12/07/19 - 12/20/19 5 0 5 $90.00

01/18/20 - 01/31/20

$18.75

5 0 5 $93.75

02/15/20 - 02/28/20 5 0 5 $93.75

02/29/20 - 03/13/20 5 0.75 4.25 $79.69

B. LOST WAGES: 

Defendant denies that Plaintiff is entitled to any lost wages, based on retaliation or 

otherwise, as stated in Defendant’s Amended Answer and Counterclaim [D.E. 9]. 

C. Attorney’s Fees and Costs: 

Because there was not any unpaid wage to Plaintiff and Plaintiff is not entitled to lost wages 

based on any retaliation claim, Plaintiff is not entitled to Attorney’s fees and cost. For the same 

reasons, Plaintiff is not entitled to liquidated damages. 

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II. DEFENSES 

1. Plaintiff’s claims are barred because he has sued the wrong parties. Defendants did 

not cause the alleged harm, if any, to Plaintiff. [erefore, Plaintiff is not entitled to any relief from 

the named Defendants.

2. Plaintiff’s claims and each and every claim for relief is barred by the applicable 

statute of limitations. 29 U.S.C. §255(a) bars Plaintiff from seeking damages more than two years 

prior to the filing of this lawsuit, as any alleged violation by Defendants was not willful.

3. Plaintiff did not work in excess of 40 hours per week. In any instance in which 

Plaintiff was at the workplace, or away from the workplace, in excess of 40 hours per week, he did 

so for personal reasons and, therefore, no compensation is due nor any calculation of work hours 

necessary or appropriate or legally required for time spent engaging in such personal pursuits.

4. Plaintiff’s claims are barred to the extent Plaintiff is claiming overtime work for 

work done at home or otherwise away from his place of work, as such work was not done with 

permission, consent, or knowledge of Defendants.

5. Plaintiff is not entitled to compensation for “preliminary or postliminary activities,” 

in accordance with the Portal-to-Portal Act, 29 U.S.C. §254.

6. Any alleged overtime by Plaintiff spent on the job in excess of Plaintiff’s work week 

was de minimis, as defined under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §207(a)(1), 

and therefore, Plaintiff is not entitled to compensation.

7. Plaintiff’s claims for damages are barred by the doctrine of laches because Plaintiff 

continued to work without any extra compensation for the alleged overtime hours worked and 

continued to do so until the conclusion of his employment without asserting, claiming, or otherwise 

bringing to the attention of Defendants his claimed entitlement to overtime compensation.

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8. Plaintiff’s claims are barred by the doctrines of estoppel and/or estoppel by silence 

because Plaintiff failed to accurately report hours allegedly worked and/or Defendants were 

unaware that Plaintiff worked the hours claimed.

9. Plaintiff failed to mitigate his damages by acts which include: (1) failure to advise 

Defendants that he was, as alleged in the Complaint, working in excess of 40 hours per week; (2) 

failure to advise of any objection to working in excess of 40 hours per week; (3) failure to advise 

Defendants of any practice, policy, or procedure he believed or perceived as being in violation of 

his legal rights; (4) failure to advise Defendant that his compensation for any given work week 

was inaccurate, or otherwise not full and complete compensation; and (5) failure to seek similar 

employment after leaving his employment with Defendants; and therefore, Plaintiff cannot recover 

against Defendants and/or any recovery should be proportionately reduced as a result of his failure 

to mitigate damages.

10. Even if Plaintiff was not compensated for overtime, Defendants did not willfully 

violate the FLSA. Defendants acted in good faith reliance upon, and in conformity with, official 

written administrative recommendations, rulings, approvals, administrative interpretations, 

practices, and/or enforcement policies and procedures of the United States Department of Labor, 

and in fact, possessed a reasonable, good faith belief that any acts or omissions were not in 

violation of the FLSA. [erefore, any relief is barred, in whole or in part.

11. To the extent Plaintiff seeks compensation in this action for anything other than 

compensable working time, including but not limited to, time spent on leave, vacation, sick leave, 

on break, or any other time that was not spent predominately for Defendants’ benefit, Plaintiff is 

estopped/barred from claiming such compensation; alternatively, in the event Plaintiff is found to 

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be entitled to overtime compensation or any other form of compensation, any such award must be 

reduced and set-off from time spent not working or for time that is otherwise non-compensable.

12. Plaintiff is not entitled to liquidated damages, even if he can prove a violation of 

the law, because any acts or omissions giving rise to Plaintiff’s claims were undertaken or made 

in good faith, and Defendants had reasonable grounds for believing that their actions or omissions 

did not violate the law.

13. Defendants acted with a lawful, legitimate, non-retaliatory motivation with respect 

to Plaintiff’s employment and termination of employment. Defendants assert the alleged action(s) 

of which Plaintiff complains, if any, would have been taken for lawful reasons independent of any 

alleged wrongful motivation, if any. Specifically, Plaintiff’s termination was due to a reduction in 

personnel that was necessary as a result of the COVID-19 pandemic and the subsequent decrease 

in business activity.

Dated: September 30, 2020

Respectfully submitted,

Eduardo A. Maura

Eduardo A. Maura (Fla. Bar 91303)

eduardo@ayalalawpa.com

Luis F. Quesada (Fla. Bar 1010305)

lquesada@ayalalawpa.com

Ayala Law, P.A.

1390 Brickell Ave, Ste 335

Miami, FL 33131

Telephone: 305-570-2208

Attorneys for Defendants

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CERTIFICATE OF SERVICE

I hereby certify that on September 30, 2020, I electronically filed the foregoing document with the 

Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this 

day on all counsel of record identified on the Service List in the manner specified, either via 

transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized 

manner for those counsel or parties who are not authorized to receive electronically Notices of 

Electronic Filing.

Eduardo A. Maura

Eduardo A. Maura (Fla. Bar 91303)

eduardo@ayalalawpa.com

Ayala Law, P.A.

1390 Brickell Ave, Ste 335

Miami, FL 33131

Telephone: 305-570-2208

Attorneys for Defendants

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SERVICE LIST

Zandro E. Palma, Esq.

Ue Law Offices of Zandro E. Palma, P.A.

3100 S Dixie Hwy, Ste 202

Miami, FL 33133

Telephone: (305) 446-1500

Facsimile: (305) 446-1502

zep@thepalmalawgroup.com

Attorney for Plaintiff

Eduardo A. Maura, Esq.

Luis F. Quesada Machado, Esq.

Ayala Law, P.A.

1390 Brickell Ave, Ste 335

Miami, FL 33131

Telephone: (305) 570-2208

eayala@ayalalawpa.com

Attorneys for Defendants

Richard D. Tuschman, Esq.

Richard D. Tuschman, P.A.

8551 W Sunrise Blvd, Ste 303

Plantation, FL 33322

Telephone: (954) 369-1050

Facsimile: (954) 380-8938

rtuschman@gtemploymentlawyers.com

assistant@gtemploymentlawyers.com

Attorney for Defendants

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