UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

CASE NO. 1:20-cv-22766-WILLIAMS/Torres 

DIANA FLOREZ, 

 Plaintiff, 

v. 

WORKFORCE SOLUTION STAFFING, LLC 

et al., 

 Defendants. 

 / 

DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT 

 Defendants, FERNANDO DE LA CRUZ and MARTHA DE LA CRUZ, by and 

through their undersigned counsel, pursuant to Rule 56, Fed. R. Civ. P., and Local 

Rule 56.1(a), hereby file their Motion for Partial Summary Judgment and 

Memorandum of Law in Support, and state as follows: 

SUMMARY AND PROCEDURAL BACKGROUND 

 Plaintiff filed her Complaint on 6/03/20 in state court [D.E. 9.-2] and 

Defendants removed it to this Court on 7/06/20 [D.E. #1]. Plaintiff’s Complaint 

consisted of a total of nine counts, including six counts for alleged violations of the 

minimum wage and overtime provision of the Fair Labor Standards Act (“FLSA”) 

(Counts I-VI), as well three counts for retaliatory termination against each of the 

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Defendants (Counts VII-IX) [D.E. #9-2]. After the close of discovery the Parties 1

stipulated to the dismissal with prejudice of all counts against Workforce Solution 

Staffing, LLC (“Workforce) [D.E. #28]. As a result of Workforce’s dismissal, only 

Martha De La Cruz and Fernando De La Cruz remain as Defendants in this case. 

The De La Cruzes now move for partial summary judgment on the remaining 

retaliation counts (Counts VIII-IX), for three main reasons: 

First, Plaintiff did not engage in protected activity. Plaintiff readily admits 

that she never complained about minimum wage or overtime violations to either 

Defendant, only about a raise and change in schedule. (Def. Stat. of Facts ¶22). 

Rather, Plaintiff requested a change in her schedule and Martha De La Cruz agreed. 

(Def. Stat. of Facts ¶9-10). Second, even if somehow Plaintiff’s request for a change 

to her schedule constituted protected activity, such activity was not the cause of 

Plaintiff’s separation from employment. (Def. Stat. of Facts ¶24). Plaintiff herself 

admitted as much in her deposition and further testified that she does not know why 

she was fired. (Def. Stat. of Facts ¶25). Third, even if Plaintiff could prove a prima 

facie case of retaliation -which she cannot-, Plaintiff is not entitled to recover any 

economic damages resulting from her separation from employment because she is an 

 Plaintiff’s Complaint asserted the following causes of action: Count I: FLSA/Overtime 1

violations against Workforce [D.E. #9-2, pp.5-7]; Count II: Violation of. FLSA/Minimum 

wage against Workforce [Id., pp. 7-8]; Count III: FLSA/Overtime against Martha De La Cruz [Id., 

p. 9]; Count IV: FLSA/Minimum Wage against Martha De La Cruz [Id., pp. 9-10]; Count V: 

FLSA/Overtime against Fernando De La Cruz [Id., p. 11]; Count VI: FLSA/Minimum Wage 

against Fernando De La Cruz [Id., pp. 11-12]; Count VII: FLSA Retaliation against Workforce [Id., 

pp. 13-14]; Count VIII: FLSA Retaliation against Martha De La Cruz [Id., pp. 14-15]; and Count 

IX: FLSA Retaliation against Fernando De La Cruz [Id., pp. 15-16]. 

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undocumented alien not authorized to work in the United States. (Def. Stat. of Facts 

¶4). As such, Plaintiff is not entitled to any backpay. 

UNDISPUTED FACTS 

Plaintiff was hired by Martha De La Cruz as her daughter’s live-in nanny on or 

about August 2018. (Def. Stat. of Facts ¶2). When Plaintiff was initially hired, 

Plaintiff and Martha De La Cruz agreed that Plaintiff would be paid $450.00 per 

week. (Def. Stat. of Facts ¶5). Plaintiff is not authorized to work in the United States 

of America. (Def. Stat. of Facts ¶4). After working for approximately one year, 

Plaintiff demanded and obtained a pay raise from $450.00 per week to $500.00 per 

week. (Def. Stat. of Facts ¶6). Sometime in November 2019, Plaintiff began to spend 

some nights at home with her new husband instead of sleeping at Defendants’ home, 

even though her belongings remained at Defendants’ home. (Def. Stat. of Facts ¶7). 

Defendants had no objection to Plaintiff’s decision to spend some nights with her new 

husband. (Def. Stat. of Facts ¶8). Indeed, Martha De La Cruz continued to pay 

Plaintiff $500.00 even after Plaintiff had to take time off to care for her husband who 

was recovering from a gunshot wound. (Def. Stat. of Facts ¶8). Plaintiff testified that 

in late February 2020, she asked Martha De La Cruz to reduce her hours of work and 

not to live-in with Defendants anymore. (Def. Stat. of Facts ¶9). According to Plaintiff, 

Martha De La Cruz agreed to the change of schedule, but the change was never 

implemented because Plaintiff’s work ended when Miami-Dade County implemented 

a quarantine as a result of the COVID-19 pandemic. (Def. Stat. of Facts ¶10). 

Plaintiff’s last day of work was mid-March 2020. (Def. Stat. of Facts ¶3). Plaintiff’s 

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admits that at all times her relationship with Defendants was always professional and 

caring. (Def. Stat. of Facts ¶21). Plaintiff acknowledges that her employment was 

suspended because of the quarantine (Def. Stat. of Facts ¶20) and admits that prior to 

her separation from employment, Plaintiff did not complain to Defendants about 

overtime or improper pay, only about a raise and change in schedule. (Def. Stat. of 

Facts ¶22). Plaintiff also admits that her request for a change to her schedule had 

nothing to do with her separation from employment. (Def. Stat. of Facts ¶24). In fact, 

Plaintiff acknowledges that she was not retaliated against by Defendants (Def. Stat. of 

Facts ¶23) and that she does not know why her employment was terminated. (Def. 

Stat. of Facts ¶25). 

Before the pandemic Plaintiff and her new husband moved into a new 

apartment. (Def. Stat. of Facts ¶11). Plaintiff and her husband were facing an 

eviction lawsuit because the apartment building they rented from alleged that they 

moved in without the Board’s approval. (Def. Stat. of Facts ¶12). Plaintiff asked 

Martha De La Cruz if she could park her vehicle at Defendants’ apartment building 

because Plaintiff was afraid that it would be towed at her new residence. (Def. Stat. of 

Facts ¶13). Because of the eviction threat, Plaintiff was afraid that if she left her new 

residence she would not be able to go back in. (Def. Stat. of Facts ¶14). At the end 

of the first two weeks of quarantine, Plaintiff contacted Martha De La Cruz asking to 

be paid for the two week of quarantine, even though Plaintiff did not work at all 

during that time. (Def. Stat. of Facts ¶15). Martha De La Cruz replied that she could 

not pay Plaintiff because she had lost her job and Plaintiff had not worked. (Def. Stat. 

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of Facts ¶16). Plaintiff’s last communication with Martha De La Cruz was that she 

did not expect not to be paid during the pandemic and she did not know what to do for 

money. (Def. Stat. of Facts ¶17). Martha De La Cruz lost her job as a result of the 

pandemic and could not pay Plaintiff. (Def. Stat. of Facts ¶18). Additionally, 

Defendants relocated to Washington D.C. in May or June 2020 (Def. Stat. of Facts 

¶18). If Plaintiff’s employment had not ended, she would have been unable to move to 

Washington, D.C. (Def. Stat. of Facts ¶19). 

LEGAL ARGUMENT 

1. APPLICABLE STANDARD 

Summary judgment is proper if when the pleadings and supporting materials 

show that there is no genuine issue as to any material fact and that the moving 

party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 

477 U.S. 242, 248 (1896). The moving party bears the initial burden under Rule 

56(c) of demonstrating the absence of a genuine issue of material fact. Allen v. 

Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997). Once the moving party 

satisfies this burden, it shifts to the party opposing the motion to go beyond the 

pleadings and designate “specific facts showing that there is genuine issue for trial.” 

Celotex v. Catrett, 477 U.S. 317, 324 (1986). A factual dispute is genuine only if the 

evidence is such that a reasonable fact finder could return a verdict for the nonmoving party. Anderson, 477 U.S. at 248; see also Denney v. City of Albany, 247 

F.3d 1172, 1181 (11th Cir. 2001). Thus, the party opposing summary judgment may 

not rest upon the mere allegations or denials of the pleadings, but must present 

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sufficient evidence favoring the non-moving party for a jury to return a verdict in 

favor of that party. Id. at 249. 

2. PLAINTIFF CANNOT MAKE A PRIMA FACIE CASE FOR 

RETALIATION 

 To establish a prima facie case of retaliation under the FLSA, Plaintiff must 

demonstrate that “(1) she engaged in activity protected under [the] act; (2) she 

subsequently suffered adverse action by the employer; and (3) a causal connection 

existed between the employee's activity and the adverse action.” Wolf v. Coca-Cola 

Co., 200 F.3d 1337, 1342-43 (11th Cir. 2000) (citing Richmond v. ONEOK, Inc., 120 

F.3d 205, 208-09 (10th Cir.1997)). The employer must then articulate a legitimate 

nonretaliatory reason for the adverse employment action. Raspanti v. Four Amigos 

Travel, Inc., 266 Fed. Appx. 820, 822 (11th Cir. 2008). “If the employer asserts a 

legitimate reason for the adverse action, the plaintiff may attempt to show pretext.” 

Id. at 1343. 

a. Plaintiff Did Not Engage In Protected Activity

Plaintiff admits that prior to her separation from employment, she never 

complained about overtime or improper pay, only about a raise and a change in 

schedule. (Def. Stat. of Facts ¶22). This admission alone is fatal to Plaintiff’s 

retaliation claims because she cannot prove one of its essential elements, namely, that 

she engaged in protected activity. This is sufficient to warrant summary judgment. 

Defendants anticipate that Plaintiff will argue that either her demand for a 

raise or her request for a change to her schedule constituted protected activity. They 

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did not. First, concerning Plaintiff’s demand for a raise, Plaintiff testified that 

sometime in September 2019, she demanded and obtained a pay raise from $450.00 to 

$500.00 per week. (Def. Stat. of Facts ¶6). After Plaintiff’s demand, she continued 

working in the same position, with the same duties, and with better pay, which would 

not constitute retaliation at all. To the contrary, beginning sometime in November 

2019, Plaintiff began to spend some nights at home with her new husband instead of 

sleeping at Defendants’ home, even though her belongings remained at Defendants’ 

home. (Def. Stat. of Facts ¶7). Defendants had no objection to Plaintiff’s decision to 

spend some nights with her new husband (Def. Stat. of Facts ¶8) and Martha De La 

Cruz continued to pay Plaintiff $500.00 even after Plaintiff had to take time off to care 

for her husband who was recovering from a gunshot wound. (Def. Stat. of Facts ¶8). 

These actions make it clear that no reasonable jury could find that Defendants 

retaliated against Plaintiff. 

Second, as to Plaintiff’s request for a change in schedule, Plaintiff testified that 

she had conversation with Martha De La Cruz to that effect in late February 2020 

because she did not want to live-in with Defendants anymore. (Def. Stat. of Facts ¶9). 

According to Plaintiff, Martha De La Cruz agreed to the change of schedule, but the 

change was never implemented because Plaintiff’s work ended when Miami-Dade 

County implemented a quarantine as a result of the pandemic in mid-March 2020. 

(Def. Stat. of Facts ¶10). This conversation is not protected activity, and even if it 

was, Martha De La Cruz agreed to the change and Plaintiff’s admits that at all times 

her relationship with Defendants was always professional and caring (Def. Stat. of 

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Facts ¶21), and admits that her request had nothing to do with her separation from 

employment. (Def. Stat. of Facts ¶24). 

It is clear from the evidence that Plaintiff did not engage in any protected 

activity and the only instances that could be considered protected activity do not raise 

to that level and had nothing to do with Plaintiff’s separation from employment. 

Under the circumstances, Plaintiff cannot meet her burden of proving that she 

engaged in protected activity and summary judgment must be entered in Defendants’ 

favor as to the retaliation claims. 

b. Plaintiff Cannot Prove a Causal Connection Between Any 

Protected Activity and Her Separation From Employment 

 Even if the Court finds that Plaintiff engaged in protected activity -which 

Defendants deny-, Plaintiff cannot establish a causal connection between that activity 

and her separation from employment. Like thousands of people all over the world, the 

devastating effects of the pandemic resulted in Plaintiff’s separation from 

employment, not because of retaliation. 

Plaintiff’s last day of work was mid-March 2020. (Def. Stat. of Facts ¶3). 

Plaintiff acknowledges that her employment was suspended because of the quarantine 

(Def. Stat. of Facts ¶20). Just like Plaintiff, Defendants were also affected by the 

pandemic when Martha De La Cruz lost her job and could not afford to continue 

paying Plaintiff’s salary. (Def. Stat. of Facts ¶18). During the pandemic Plaintiff and 

Martha De La Cruz maintained constant communication and Plaintiff asked Martha 

De La Cruz to let her park her vehicle in her building because Plaintiff was afraid that 

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it would be towed at her new residence since she was under threat of being evicted. 

(Def. Stat. of Facts ¶¶12-13). Allowing Plaintiff to park her car in her building to 

protect it from being towed is far from retaliatory. 

In addition to the restrictions implemented by the county to control the 

pandemic, Plaintiff had her own problems that prevented her from working as a 

nanny. Plaintiff and her husband had recently moved to a new apartment, but they 

were being being evicted because the Board claim that they had moved in without 

approval. (Def. Stat. of Facts ¶12). Because of the eviction threat, Plaintiff was 

afraid that if she left her new residence she would not be able to go back in. (Def. Stat. 

of Facts ¶14), so she stayed home with her husband. After the initial two weeks of 

quarantine, Plaintiff contacted Martha De La Cruz asking to be paid for that period, 

even though Plaintiff did not work at all during that time. (Def. Stat. of Facts ¶15). 

Martha De La Cruz replied that she could not pay Plaintiff because she had lost her 

job and Plaintiff had not worked. (Def. Stat. of Facts ¶16). Plaintiff ’s last 

communication with Martha De La Cruz was that she did not expect not to be paid 

during the pandemic and she did not know what to do for money. (Def. Stat. of Facts 

¶17). 

These facts do not prove a causal connection between Plaintiff’s protected 

activity -which there is none- and her separation from employment. In fact, Plaintiff 

admitted in her deposition that she was not retaliated against by Defendants (Def. 

Stat. of Facts ¶23) and that she does not know why her employment was terminated. 

(Def. Stat. of Facts ¶25). 

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Defendants anticipate that Plaintiff will argue that another employee was 

permitted to continue working while Plaintiff was not and that this shows retaliation. 

This argument fails for a number of reasons. First, the other person Plaintiff is 

referring to is not an employee, but a cleaning company. (Deposition of Martha De La 

Cruz, p. 59:1-8). Second, even if the cleaning company was an employee, they have 

very different jobs because Plaintiff has to have direct contact with Defendants and 

their child in order to perform her duties as a nanny, while the cleaning can be done 

alone at Defendants’ residence, avoiding direct contact with them. (Deposition of 

Martha De La Cruz, p. 62:16-25) 

In addition to these factors that prove that Plaintiff’s separation from 

employment had nothing to do with retaliation, Defendants relocated to Washington 

D.C. in May or June 2020 (Def. Stat. of Facts ¶18). If Plaintiff’s employment had not 

ended, she would have been unable to move to Washington, D.C. (Def. Stat. of Facts 

¶19). 

Based on the above, it is undisputed that there is no causal connection between 

Plaintiff’s protected activity (assuming she engaged in such) and her separation from 

employment. Hence, Defendants are entitled to summary judgment as to the 

remaining retaliation counts. 

3. PLAINTIFF IS NOT ENTITLED TO BACKPAY 

 Assuming that Plaintiff can establish a prima facie case for retaliation -which 

Defendants dispute-, she cannot recover backpay because she is an undocumented 

alien not authorized to work in the United States. (Def. Stat. of Facts ¶4). Hence, 

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she is not entitled to pursue backpay for work that she was not lawfully entitled to 

earn. See Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 169 LRRM 2769 

(2002). Defendants do not dispute that Plaintiff is entitled to pursue her claim for 

alleged minimum wages and overtime under the FLSA, although they dispute that 

Plaintiff is entitled to any additional pay, but Plaintiff cannot recover any alleged lost 

wages resulting from her separation from employment because she is not legally 

allowed to work in the United States. 

CONCLUSION 

 For the foregoing reasons, Defendants respectfully request that the Court 

enter Partial Summary Judgment in their favor and against Plaintiff as to Counts 

VIII and IX of the Complaint. 

 Respectfully Submitted, 

/s/ Juliana Gonzalez 

 Fla. Bar No. 54660 

 MG Legal Group, P.A. 

3126 Center Street 

 Coconut Grove, FL 33133 

 Tel. (305) 448-9557 

 Fax. (305) 448-9559 

juliana@ljmpalaw.com

office@mglegalgroup.com 

Counsel for Defendants 

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CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that I electronically filed the foregoing document with 

the Clerk of the Court using CM/ECF; and that the foregoing document is served on 

this 9th day of April, 2021, to all counsel of record or pro se parties identified on the 

attached Service List in the manner specified, either via transmission of the notices 

of Electronic Filing generated by the CM/ECF or in some other authorized manner 

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

of Electronic Filing. 

 Respectfully Submitted, 

/s/ Juliana Gonzalez 

 Fla. Bar No. 54660 

MG Legal Group, P.A. 

 3126 Center Street 

 Coconut Grove, FL 33133 

 Tel. (305) 448-9557 

 Fax. (305) 448-9559 

juliana@ljmpalaw.com

office@mglegalgroup.com 

Counsel for Defendants 

SERVICE LIST 

Nathaly Saavedra, Esq. 

nathaly@peregonza.com 

office@peregonza.com 

Juan Perez, Esq. 

juan@peregonza.com 

Peregonza Law Group, PLLC 

1414 NW 107th Avenue, Suite 302 

Doral, FL 33172 

Tel. (786) 650-0202 

Fax. (786) 650-0200 

Counsel for Plaintiff 

Service via CM/ECF

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