UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO.: 0:22-CV-61553-DIMITROULEAS/HUNT

CRUZ VALDIVIESO FIGUERA,

Plaintiff,

vs.

ALL VIP CARE INC. AND LIZ 

VELAZQUEZ MCKINNON,

Defendants.

______________________________/

PLAINTIFF’S RESPONSE TO 

DEFENDANTS’ AMENDED MOTION FOR SUMMARY JUDGMENT

Plaintiff, Cruz Valdivieso Figuera (“Cruz”), through undersigned counsel and pursuant to 

Fed. R. Civ. P. 56, responds to the Defendants’ Amended Motion for Summary Judgment (the 

“Motion”) [ECF No. 57], and separately files Plaintiff’s Statement of Material Facts in support of 

the arguments made within this Response. The Statement of Material Facts is referred to in this 

Response as “[SMF ¶ #].” The Defendants are collectively referred to as “Defendants” or “VIP”.

A. Cruz’s Claims Under the Fair Labor Standards Act (FLSA)

I. VIP’s State Law Affirmative Defense is Preempted by Federal Law.

The Defendants’ first affirmative defense is that they properly classified Cruz as an 

independent contractor and they could not have employed her because VIP is a nurse registry 

under Florida law. [ECF No. 37 at 5-7]. This “nurse registry” affirmative defense has already been 

preempted by federal law, which is why VIP presented limited argument about it. 

When state and federal laws conflict, “federal law trumps state law; that was always clear.” 

Florida State Conference of N.A.A.C.P. v. Browning, 522 F.3d 1153, 1167 (11th Cir. 2008). The FLSA is 

a federal law. 29 U.S.C. §201, et. seq. Therefore, “in determining who are ‘employees’ under the 

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Act, common law employee categories or employer-employee classifications under other statutes 

are not of controlling significance.” Walling v. Portland Terminal Co., 330 U.S. 148, 150 (1947). As 

binding precedent, Walling precludes this Court (or even a jury) from considering whether VIP was 

in compliance with Florida law in classifying Cruz as an independent contractor. 

VIP’s purported defense of following state law has been raised by at least one other nurse 

registry in Florida, and the argument was repudiated in federal court on the basis of preemption. 

The defendant in Solis v. A+ Nursetemps, Inc., 2013 WL 1395863, (M.D. Fla. Apr. 5, 2013) was a 

licensed nurse registry under Florida law. Id. at *2. The District Court considered the same Florida 

statutes advanced by VIP (in particular Fla. Stat. §400.506), and explained that “legal designations 

in other statutes do not affect the determination of a worker’s status under the FLSA. Thus, a 

worker may be an independent contractor under other laws or for purposes of contractual 

relationships, yet still meet the definition of an employee under the FLSA.” Id. at *4. The District 

Court relied on the “economic realities” test to determine whether a worker is an employee covered 

by the FLSA, and ultimately concluded that the plaintiff nurses were employees of the nurse 

registry. Id. at *5-7. 

Solis shows that the FLSA is not concerned about how Florida’s laws classify home health 

aides. Therefore, this Court must find VIP’s first affirmative defense to be preempted by the FLSA, 

and analyze Cruz’s employment status under the “economic realities” standard discussed in 

Scantland v. Jeffrey Knight, Inc., 721 F.3d 1308 (11th Cir. 2013).

II. VIP attempts to use factors that cannot be considered under the FLSA’s economic 

realities test, but Cruz is clearly an “employee” when the correct Scantland factors are used.

a. The FLSA’s economic realities test focuses on economic dependence. 

In Scantland, supra, the Eleventh Circuit Court of Appeals articulated the following six 

factors to be considered under the “economic realities test” in analyzing whether a worker is an 

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employee or an independent contractor under the FLSA: (1) the nature and degree of the alleged 

employer’s control as to the manner in which the work is to be performed; (2) the alleged

employee’s opportunity for profit or loss depending upon his managerial skill; (3) the alleged 

employee’s investment in equipment or materials required for his task, or his employment of 

workers; (4) whether the service rendered requires a special skill; (5) the degree of permanency and 

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

of the alleged employer’s business. 721 F.3d. at 1311-12. The Eleventh Circuit concluded this 

discussion stating “the overarching focus of the inquiry is economic dependence.” Id. “Ultimately, 

in considering economic dependence, the court focuses on whether an individual is ‘in business for 

himself’ or is ‘dependent upon finding employment in the business of others.’ Id. (quoting Mednick 

v. Albert Enters., Inc., 508 F.2d 297, 301–02 (5th Cir.1975)). 

It is dependence that indicates employee status. Each test must be applied with that ultimate 

notion in mind. More importantly, the final and determinative question must be whether 

the total of the testing establishes the personnel are so dependent upon the business with 

which they are connected that they come within the protection of FLSA or are sufficiently 

independent to lie outside its ambit.

Usery, 527 F.2d at 1311-12. 

b. There are three tests to determine if someone is an independent contractor 

or an employee, and only one applies to the FLSA. VIP asks this Court to 

improperly consider factors that apply to the other two tests. 

While Scantland’s test provides the factors this Court needs to consider, the Defendants cite 

two inapposite cases for the proposition that the “parties’ intent” is also determinative of the 

economic reality between Cruz and VIP. [ECF No. 57 at 6]. From that misleading proposition, 

VIP then attempts to operate outside of Scantland’s six factors and make the independent contractor 

agreement, and Cruz’s belief that she was an independent contractor, relevant considerations in 

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this Court’s analysis. However, those facts are not relevant to her employment status under the 

FLSA’s framework and this Court should not consider them. 

The first case cited by VIP, Daughtrey v. Honeywell, Inc., 3 F.3d 1488 (11th Cir. 1993), 

involved a computer programmer who sued her employer for violating the Employee Retirement 

Income Security Act (ERISA), and the Age Discrimination in Employment Act (ADEA). The lower 

court granted summary judgment to the defendant finding that several of the programmer’s claims 

could only be brought by an employee, but she was an independent contractor. Id. at 1492. The 

Eleventh Circuit Court of Appeals reversed because facts were in dispute about the degree of 

control and supervision exercised by the employer over the programmer. Id. at 1493-94. The Court 

of Appeals explained that federal courts have developed three tests for distinguishing an 

independent contractor from an employee: (1) a traditional common law test based on principles 

of agency, used under an ERISA analysis; (2) the FLSA’s “economic realities” test, which is unique 

because the FLSA incorporates a broad definition of the term “employ”; and (3) a hybrid approach 

that fuses the two, which is used in employment discrimination cases under Title VII. Id. at 1495. 

However, even under the agency law analysis, the Court of Appeals noted the “employment status 

of an individual for the purposes of ERISA is not determined by the label used in the contract 

between the parties.” Id. at 1492. Meaning that an independent contractor agreement is a relevant 

consideration under ERISA, not the FLSA. 

The second case cited by VIP, Ashkenazi v. S. Broward Hosp. Dist., 607 F. App'x 958 (11th 

Cir. 2015), involved a surgeon who sued a hospital district for age discrimination and retaliation 

under the ADEA and the Florida Civil Rights Act (FCRA). Again, the Eleventh Circuit explained

the three different tests to determine a person’s employment status. Id. at 961. This time, however, 

the Court of Appeals affirmed summary judgment because the doctor was considered an

independent contractor when applying either the common-law agency test or the hybrid test under 

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the ADEA. Id. at 962. It was relevant under those two non-FLSA tests that the doctor signed an 

independent contractor agreement, but the most important factor was the doctor’s ability to 

control the manner in which he provided his services. Id. at 962-3.

Daughtery and Ashkenazi are not FLSA cases, and they do not employ the FLSA’s economic 

realities test. Contrary to VIP’s assertion, the written agreement between the parties is not 

probative of the parties’ intent under the FLSA. [ECF No. 57 at 6]. Employers routinely attempt 

to graft additional factors onto the Scantland test, thereby muddying the analysis to have fact-finders 

consider if workers signed an independent contractor agreement, filed 1099s, or even called 

themselves independent contractors. See e.g. Harrell v. Diamond A Ent., Inc., 992 F. Supp. 1343 (M.D. 

Fla. 1997) (pre-Scantland case rejecting employer’s proposal to add five factors to the FLSA 

economic reality analysis). But workers’ mental states in thinking of themselves as independent 

contractors, or even taking actions in furtherance of being independent contractors are not 

determinative of their actual statuses under the FLSA. See Harrell, 992 F. Supp. at 1353 (M.D. Fla. 

1997) (court declined to consider the “intent of the parties,” the “way in which the parties 

characterize themselves for tax purposes,” or “the extent to which the putative employer provided 

employment benefits” when ruling on Defendant’s motion for partial summary judgment to 

determine whether Plaintiff was an independent contractor or employee because the label attached 

to the employment relationship is not dispositive of the economic reality of the relationship); Gordilis 

v. Ocean Drive Limousines, Inc., 2014 WL 2214289, at *3 (S.D. Fla. May 28, 2014) (“District courts 

have found that the label workers used with respect to the IRS is irrelevant in considering whether 

the person was an independent contractor.”); Clincy v. Galardi S. Enterprises, Inc., 808 F. Supp. 2d 

1326, 1349 (N.D. Ga. 2011) (finding Plaintiffs to be employees even though they elected to be 

treated as independent contractors and held themselves out to the IRS as independent contractors); 

accord Baker v. Barnard Const. Co. Inc., 860 F. Supp. 766, 772 (D.N.M. 1994), aff'd sub nom. Baker v. 

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Flint Eng'g & Const. Co., 137 F.3d 1436 (10th Cir. 1998) (“The Court also finds the fact that the 

Plaintiffs knew they were treated as independent contractors, and the fact they listed themselves as 

such on their tax forms, to be of little, if any, relevance.”).

All of the citations in the previous paragraph are FLSA cases; not ERISA, ADEA, or Title 

VII cases that use different tests to determine employment status. The “economic realities” test is 

different from the “common-law agency” and “hybrid” tests because the FLSA intends to grant 

protections to a wide swath of workers. Harrell, 992 F. Supp. at 1348 (“The [FLSA’s] ‘suffer or 

permit to work’ standard derives from state child-labor laws and has been called the broadest 

definition of employee that has ever been included in one act. Courts look not to the common law 

definition of employment, but rather to the economic reality of whether the putative employee is 

economically dependent upon the alleged employer.”) (internal citations and quotations omitted).

Therefore, the FLSA and Eleventh Circuit jurisprudence require this Court to reject irrelevant 

considerations such as Cruz’s written agreement with VIP, other “on-boarding documents”,

Cruz’s 1099 tax forms, or her statement that she was an independent contractor. 

c. Cruz is an employee under Scantland’s six-factor economic realities test.

VIP misclassified Cruz as an independent contractor under the FLSA’s framework. Federal

courts routinely determine that caregivers in similar roles as Cruz are employees due to the 

restrictive nature of the work they perform for agencies in the same line of work as VIP. See Mason 

v. Pathfinders for Indep., Inc., 2022 WL 1092238 (M.D. Fla. Apr. 12, 2022) (finding live-in companion 

to be employee of home care agency under Scantland’s economic realities test); Hughes v. Fam. Life 

Care, Inc., 117 F. Supp. 3d 1365 (N.D. Fla. 2015) (finding certified nursing assistant to be an 

employee of nurse registry under Scantland); Chapman v. A.S.U.I. Healthcare & Dev. Ctr., 562 F. App'x 

182 (5th Cir. 2014) (caregivers in group home found to be employees under economic reality test 

used in Fifth Circuit). Notably, VIP did not cite to any case where caregivers were found to be 

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independent contractors. As such, Scantland’s six factors show that Cruz was VIP’s employee as 

analyzed below. 

(1) VIP controlled Cruz in her work.

In Scantland, supra, the Eleventh Circuit Court of Appeals determined that a group of cable 

technicians were misclassified as independent contractors. When analyzing this first factor in the 

economic realities test, the court found the employer “controlled what jobs plaintiffs did, how much 

they were paid, how many hours they worked, how many days they worked, their daily work 

schedule, whether they could work for others, whether they could earn additional income from 

customers, and closely monitored the quality of their work.” Id. at 1315. Specifically, the 

technicians would receive a “route” that detailed their work assignments for the day, they could 

not sell their own services, they could be disciplined for not adhering to company policies, and they 

had to inform their supervisors in advance of taking time off. Id. at 1314-15. Additionally, the 

technicians could not subcontract their work to any technicians that did not work for the employer. 

Id. at 1314. 

VIP controlled the nature and degree of Cruz’s work in the same manner as the employer

in Scantland. Just like the “route” detailing the cable technicians’ work assignments, VIP told Cruz

which days and hours she had to work by assigning her shifts on a patient calendar. [SMF ¶ 70, 

71]. VIP administrator Diana Ramirez coordinated a schedule according to clients’ preferences,

and then assigned caregivers to work that schedule on a rolling basis. [SMF ¶¶ 72, 73].

Furthermore, VIP’s contract states, “I acknowledge that I will provide services to clients exactly as 

they are assigned.” [SMF ¶ 32]. VIP required Cruz to submit a weekly timesheet reflecting the 

hours she worked. [SMF ¶¶ 18, 74]. The timesheet identified the tasks that Cruz was to perform,

and VIP required her to identify the tasks she performed each shift with their clients. [SMF ¶ 75].

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The timesheets were also used to determine how much money VIP would pay Cruz, which 

indicates her status as an hourly employee.1 [SMF ¶ 76].

Aside from controlling when and where Cruz would service its clients, VIP also controlled 

how Cruz serviced its clients. VIP receives a “care plan” from insurance companies that defines the 

scope of services provided to each client. [SMF ¶ 25]. While caregivers can theoretically modify 

the care plan, VIP does not allow its caregivers to do so per its contract. [SMF ¶ 25]. As a result, 

Cruz’s ability to provide health care services was limited to the scope of services provided by VIP. 

VIP totally constrained the manner in which Cruz performed services for their clients and 

levied consequences if its policies were not followed. VIP’s independent contractor agreement

contains a “Statement of Commitment”, which is a list of dos, don’ts, and punishments the 

caregivers must abide by. [SMF ¶ 31]. Among other things, Cruz was required to wear 

identification during assignment; was required to notify the nurse registry if she could not make an 

assignment and the failure to do so was grounds for termination; she was required to complete and 

submit all documentation per VIP policy or her pay could be withheld; she could not make or 

accept personal phone calls at a client’s home, nor could she accept money or gifts from the clients.

[SMF ¶ 31]. Ramirez emphasized that caregivers have to be “well-dressed with closed-toe shoes 

and be there on time”, and that communicating emergency absences was “very, very important 

with VIP Care.” [SMF ¶ 77]. Cruz also could not sub-contract her services for VIP’s clients to 

another home health aide of her choice, even if the substitute worker was a VIP caregiver. [SMF 

¶ 78]. VIP puzzlingly argues that they did not have the power to fire their caregivers, yet their 

1 Solis v. A+ Nursetemps, Inc., supra, decided a few months before Scantland, found health care workers of a nurse registry 

were employees entitled to overtime after analyzing various economic reality factors established in Eleventh Circuit 

decisions. One of the factors was whether time records were maintained, which the Solis court weighed in favor of 

employee status because “[w]hile the nurses keep their own time records, they are paid by the hour, and such records 

are turned in to and maintained by Nursetemps ... for the purpose of calculating the nurses' pay. Stated another way, 

the nurses are not paid a flat rate or piece rate per shift. They are hourly employees.” Id. at *6.

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contract with Cruz spells out numerous ways she could be terminated for not following their 

policies. [SMF ¶ 31].

In analyzing this “control” factor, the Scantland court found in favor of employee status 

because the technicians had to inform their supervisors when they would be taking time off and 

they could be fired for violating company policies. Scantland at 1314-15. The Scantland court also 

found that the cable technicians were employees under the control factor because although they 

could use other technicians to help them do work, they could only rely on helpers already engaged 

by the company. Id. In this case, Cruz could not even unilaterally solicit help from other VIP home 

health aides, or enlist the help of aides who were not pre-approved by VIP, which is a more rigid 

requirement than the employer’s policies in Scantland.

The above analysis demonstrates that VIP controlled Cruz’s work to such an extent that

she did not operate as a separate economic entity. It does not matter that Cruz had the ability to 

reject a client offered by VIP [SMF ¶¶ 21,22] because VIP still controlled her work once she agreed 

to service a client. See Hughes v. Fam. Life Care, Inc. at 1370-71 (certified nursing assistant found to 

be controlled by nurse registry under first Scantland factor although plaintiff could refuse the work 

offered without consequence). It also does not matter that VIP did not train Cruz because the cable 

technicians in Scantland were found to be employees even though they did receive training. Scantland

at 1318. 

(2) Cruz had no opportunity for loss and could not increase her income by managing herself or her 

schedule.

The second factor considers the alleged employee's opportunity for profit or loss depending 

upon her managerial skill. Scantland, 721 F.3d at 1316. The relevant inquiry is whether Cruz’s 

opportunity for profit or loss depended more on VIP’s work orders and her technical skill rather 

than her own managerial skill. Hughes v. Fam. Life Care, Inc., 117 F. Supp. 3d at 1371. 

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VIP paid Cruz $13 an hour for her shift work. [SMF ¶ 13]. Cruz could not schedule herself 

to be more proficient since she could only assist one patient at a time and could only be in one 

location at a time per the patient calendar VIP disseminated. [SMF ¶ 79]. These facts indicate that 

Cruz was VIP’s employee since she had “no opportunity for additional income or profit through 

the exercise of managerial skill or increased efficiency in the manner or means of accomplishing 

the work.” Solis, 2013 WL 1395863 at *7 (nurses paid by the hour had no opportunity for profit or 

loss through the exercise of their managerial skill); see also Hughes, 117 F. Supp. 3d at 1371 (finding

a certified nursing assistant had no opportunity for profit or loss because she was paid hourly). 

Cruz also could not utilize her labor to earn additional income from VIP’s clients like the 

cable technicians. Scantland at 1314 (“Plaintiffs could not sell non-BHN services to customers and 

could not work for other companies, either because they were told they could not do so or because 

the schedule Knight imposed prevented them from doing so.”). VIP’s contract contains a noncompete clause that prohibits caregivers from attempting to arrange direct services with the 

employers’ clients. [SMF ¶ 80]. McKinnon and Ramirez explicitly stated that caregivers could not 

work “private” hours; meaning they could not service clients at any time that was not scheduled 

by VIP. [SMF ¶ 81]. The above facts demonstrate that Cruz could not use any managerial skills 

to earn more money, and therefore she was not operating her own business. 

(3) Cruz made no appreciable investment to work for VIP.

The third factor considers the alleged employee's investment in equipment or materials 

required for her task, or her employment of workers. Scantland at 1317. “This factor contemplates 

whether the alleged employee's work-related expenditures detracted from her economic 

dependence on the alleged employer.” Mason, 2022 WL 1092238, at *4. 

VIP did not provide Cruz with any equipment to service their clients. [SMF ¶¶ 35]. 

Instead, Cruz had to buy her own scrubs and personal protective equipment, such as gloves and 

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masks. [SMF ¶ 36]. On the other hand, VIP contracts with Medicaid or directly with its clients to 

provide services, and VIP maintains several local offices with personnel staff throughout Florida. 

[SMF ¶¶ 108,109]. Also, as mentioned above under the “control” factor, VIP prevented Cruz from 

subcontracting her services to other workers. [SMF ¶ 78].

This factor weighs in favor of employee status because Cruz’s work-related expenditures 

did not detract from her economic dependence on VIP. The equipment she purchased (gloves, 

masks, and scrubs) are not expensive and can generally be re-used or purchased in bulk such that 

they are not continuing expenses. In comparison, Cruz had to rely on VIP’s office infrastructure 

to provide her with clients, schedules to work, and submit timesheets in order to be paid. See 

Chapman, 562 F. App'x at 185 (finding caregivers to be employees of healthcare provider under 

Fifth Circuit economic reality test because, inter alia, the “plaintiffs' only investment in the business 

was the purchase of their uniforms. ASUI, on the other hand, contracted with the state to provide 

the services; operated a dayhab facility for the clients' day time use; and maintained a central office 

headquarters. Any lack of supervision by ASUI as to how [plaintiffs] should go about cooking and 

cleaning does not transform the plaintiffs into independent contractors.”).

(4) Working as a Home Health Aide is not a “special skill.”

The fourth factor considers whether the service rendered requires a special skill. Scantland

at 1318. “A lack of specialization indicates that an individual is an employee, not an independent 

contractor.... Finally, even if an individual has specialized skills, that is not indicative of 

independent contractor status where the individual does not use those skills in an independent 

fashion.” Molina v. S. Fla. Exp. Bankserv, Inc., 420 F. Supp. 2d 1276, 1286 (M.D. Fla. 2006) (internal 

citations and quotations omitted). 

Although Cruz is a certified HHA [SMF ¶ 82], she only provided domestic services to VIP’s 

clients such as personal care, homemaking, and companionship. [SMF ¶¶ 83-86]. These are not 

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specialized skills as anybody could perform them, and Cruz did not use those skills in an 

independent fashion because her work was proscribed by the myriad of policies articulated in VIP’s 

“Statement of Commitment”. [SMF ¶ 31]. In fact, VIP implicitly acknowledged that non-medical 

services, provided by HHAs like Cruz, do not require “skilled” personnel. [SMF ¶ 87]. Therefore,

this factor favors employment status. 

(5) Cruz worked for VIP for over a year, indicating permanence. 

The fifth factor considers the degree of permanency and duration of the working 

relationship. Scantland at 1318. Courts generally find in favor of employee status when the 

employment contract is for automatically renewing periods of time. See Scantland at 1318 (cable 

technicians’ contracts were for year terms, automatically renewed, and were terminable only with 

thirty days’ notice); also see Solis, 2013 WL 1395863, at *7 (majority of nurses accepted work 

assignments on a regular basis for a year or more); Hughes, 117 F. Supp. 3d at 1373 (employment 

contract renews automatically on a monthly basis and certified nursing assistant regularly accepted 

assignments). 

Cruz worked for VIP from May 3, 2021 until July of 2022. [SMF ¶ 88]. During that time, 

she regularly accepted assignments from VIP to provide care to their clients. [SMF ¶ 89]. VIP’s 

independent contractor agreement explicitly stated that her work was to be provided in successive 

one (1) year terms. [SMF ¶ 90]. Indeed, her employment automatically renewed on May 3, 2022

as she continued working through July of that year. Cruz’s employment only ended because VIP

failed to properly pay her and she was forced to stop working for them. [SMF ¶ 91]. Therefore, 

the working relationship with VIP indicates permanence under this factor, and the duration was 

only limited to a little more than one year because she was not timely paid for her services, which 

is the subject of the breach of contract claim at Count III of her Complaint. [ECF No. 2 at 7]. This 

factor also favors employment status. 

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(6) Cruz was an integral and indispensable part of VIP’s business.

This factor considers the extent to which the service rendered is an integral part of the 

alleged employer's business. Scantland at 1319. In Scantland, the Eleventh Circuit Court of Appeals 

found the work performed by the cable technicians comprised the majority of the defendant’s 

business, and the company treated them as employees to maintain quality control. Id. Therefore, 

the technicians’ integral role in the company was considered the “usual path of an employee.” Id.

In the home health care context, courts routinely find this factor strongly favors employee status 

because caregivers comprise the entirety of the employer’s business. Solis, 2013 WL 1395863, at *7 

(“The work performed by the nurses is more than an integral part of Nursetemps' business, it is the 

whole of Nursetemps' business.”); Hughes, 117 F. Supp. 3d at 1373 (defendant in the business of 

home health care and certified nursing assistants were the whole of the business); Mason, 2022 WL 

1092238, at *5 (“As a home healthcare company, Defendants cannot reasonably dispute that 

Plaintiff's services as a support living coach and personal support staff member were integral parts

of Defendants’ business. Brown acknowledged that workers in those positions provide the primary 

service offered by Pathfinders.”).

As a nurse registry, VIP provides home care. [SMF ¶ 92]. The entirety of VIP’s business 

is to provide medical and non-medical services to elderly clients. [SMF ¶¶ 26, 93]. Those services 

are provided by nurses, certified nursing assistants, and home health aides. [SMF ¶ 94]. As a home 

health aide, Cruz participated in performing the work that comprises the most integral part of 

VIP’s business - in the same manner as the caregivers in Solis, Hughes, and Mason. As such, this 

factor also demonstrates that Cruz was an employee of VIP. 

B. Cruz Concedes that She Cannot Carry Her Burden on the FLSA Retaliation 

Claim. 

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A prima facie case of FLSA retaliation requires Cruz to show: (1) she engaged in activity 

protected under the FLSA; (2) she subsequently suffered adverse action by the employer; and (3) a 

causal connection exists between the employee's activity and the adverse action. See Wolf v. CocaCola Co., 200 F.3d 1337, 1342–43 (11th Cir. 2000). Cruz can meet the first and third elements, but 

she would be unable to prove the second element, which requires an analysis of whether VIP’s 

responsive legal action: (1) was filed for a retaliatory motive, and (2) lacks legal basis in fact or law. 

Munroe v. PartsBase, Inc., 2009 WL 413721, at *8 (S.D. Fla. Feb. 18, 2009) (explaining that baseless 

claims or lawsuits designed to deter plaintiffs from seeking legal redress constitute impermissible 

adverse retaliatory actions); accord Darveau v. Detecon, Inc., 515 F.3d 334, 341 (4th Cir. 2008). 

However, Cruz does not concede that she was an independent contractor as VIP argues. Cruz 

unequivocally maintains that she was VIP’s employee. 

C. VIP is Not Entitled to Summary Judgment on Breach of Contract because 

their Supporting Evidence is in Dispute, Not Admissible, or Not Competent. 

VIP cannot establish the second and third elements of their breach of contract claim –

material breach or damages. The main evidence VIP presented to support their allegations is 

directly disputed. Also, in many instances, VIP overstated witness testimony to reach improper 

conclusions. And, in other instances, VIP cited to inadmissible hearsay that cannot be considered 

at summary judgment.

I. Cruz never told the Iziques to leave VIP.

VIP accuses Cruz of “soliciting Y.I. and C.I. to join her new independent contractor 

arrangement with another nurse registry.”2 [ECF No. 57 at 19]. However, the Iziques moved to 

2 Y.I. and C.I. are the initials for Mr. and Mrs. Izique. They are referred to as the “Iziques” in this Response.

McKinnon’s deposition refers to them as the “ZK’s” because the court reporter was not provided with the spelling of 

their surnames.

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Senior Nannies3 for reasons unrelated to Cruz. The Iziques’ daughter, Ana Marie Rowland, had

power of attorney for her parents in matters related to their caregiving services. [SMF ¶¶ 95,96].

Rowland had problems with VIP’s administration, and she, along with a Humana case manager,

decided to choose Senior Nannies as a new agency for her parents. [SMF ¶¶ 67,97]. Importantly,

Rowland stated that Cruz never told the Iziques to switch to Senior Nannies. [SMF ¶ 67].

VIP attempts to support their accusations of Cruz’s solicitation by mischaracterizing

deposition testimony. In deposition, Cruz was asked if any of VIP’s clients “followed” her to Senior 

Nannies, and she replied the Iziques “switched” after she already applied to work with the new 

agency. [SMF ¶ 63]. Neither the question nor the answer lead to the conclusion that Cruz solicited 

the Iziques to do anything within the restrictive period of one year after her termination from VIP.

Based on Rowland’s and Cruz’s testimony, the proper takeaway is that Cruz and the Iziques 

independently moved to Senior Nannies, with no cause or effect to be inferred.

Cruz was also asked how the Iziques learned she was going to work for Senior Nannies, 

and replied she told them she was leaving because VIP was not paying her. [SMF ¶ 64]. In 

response, the Iziques apparently said they would also leave VIP. [SMF ¶ 65]. Cruz then stated the 

Iziques switched to Senior Nannies and requested her, so she is currently their caregiver. [SMF ¶ 

65]. Again, no cause and effect can be attributed to these statements because the Iziques merely 

left VIP with no explicit prompting from Cruz. This testimony is also consistent with Rowland’s 

statement that she requested Cruz as a caregiver for her parents after they switched to Senior 

Nannies. [SMF ¶ 67]. Finally, the Defendants allege Cruz failed to notify VIP that the Iziques 

wanted to leave their agency. [ECF No. 57 at 19]. But the Defendants point to no specific term of 

their contract explaining why this failure to report the Iziques’ intent was a material breach. VIP 

3 Cruz used a Spanish interpreter during her deposition, and misspelled the name of the nurse registry, Senior Nannies. 

The name is spelled “Sininani” in her deposition. 

Case 0:22-cv-61553-WPD Document 74 Entered on FLSD Docket 08/02/2023 Page 15 of 20
clients are free to leave the nurse registry at any time they choose [SMF ¶ 98]. Therefore, it cannot 

be a breach of the contract to report clients for what they have the right to do, which is leave VIP.

McKinnon testified that Cruz “took” the Iziques from VIP. [SMF ¶ 63, 67]. However, she 

has no personal knowledge of any client-stealing. When asked how she knew that Cruz told clients 

to complain about VIP, McKinnon replied that is “what I hear from the clients and from the 

caregivers.” [SMF ¶ 99]. That is inadmissible hearsay that cannot be considered by this Court. 

Macuba v. Deboer, 193 F.3d 1316, 1322–23 (11th Cir. 1999) (“The general rule is that inadmissible 

hearsay cannot be considered on a motion for summary judgment. Rule 56(e) of the Federal Rules 

of Civil Procedure requires that affidavits that support or oppose summary judgment motions shall 

be made on personal knowledge, [and] shall set forth such facts as would be admissible in evidence.

This rule also applies to testimony given on deposition.”) (internal citations and quotations 

omitted). When asked how she knew Cruz told the Iziques to leave VIP, McKinnon said she 

learned that information from other home health aides. [SMF ¶ 100]. This is also inadmissible

hearsay. 

Similarly, VIP attempts to prove that Cruz solicited the Iziques with testimony from Diana 

Ramirez that is rife with hearsay. In deposition, Ramirez also repeated statements of which she 

had no personal knowledge. She constantly stated the Iziques “told” her their thoughts about Cruz, 

and even “told” her what Cruz said. [SMF ¶¶ 101,102]. Therefore, VIP is offering double hearsay 

– statements purportedly made by Cruz (declarant A) to the Iziques (declarant B) told to Ramirez 

– to prove that Cruz solicited VIP’s clients.

VIP offered no competent or admissible evidence that Cruz solicited the Iziques. Instead, 

their evidence is equally susceptible of the conclusion that the Iziques chose to leave VIP of their 

own volition, as Rowland stated in her declaration. Finally, McKinnon admitted she cannot say if 

Case 0:22-cv-61553-WPD Document 74 Entered on FLSD Docket 08/02/2023 Page 16 of 20
Cruz encouraged the Iziques to go to another agency or if they made a personal decision to leave 

VIP. [SMF ¶ 103].

II. Cruz never told Angela Melendez to leave VIP.

VIP presented a sworn statement from its client, Angela Melendez,4 who stated Cruz

“suggested” she move to another agency. [ECF No. 58-1 at 118]. However, Cruz never suggested 

that Melendez leave VIP. [SMF ¶ 66]. Thus, there is a disputed issue of material fact precluding 

summary judgment about Cruz breaching VIP’s contract by soliciting Melendez. 

VIP completely fabricated a fact when it stated Cruz “acknowledges that she solicited” 

Angela Melendez. [ECF No. 57 at 19]. VIP points the reader to Cruz’s deposition for this

“acknowledgment.” [SMF ¶ 67]. She was asked if Melendez switched to Senior Nannies, and Cruz

said “No”. [SMF ¶ 106]. It is impossible to understand how VIP leaps to the conclusion that Cruz

attempted to “take” Melendez from that question and answer. Cruz was never asked if she tried to 

convince Melendez to follow her to a new job, and she offered no information on that point. At no 

point in her deposition did Cruz acknowledge soliciting or attempting to solicit Melendez. 

The breach of contract claim also fails on the damages element because Melendez stated

Cruz did not cause her to leave VIP. [SMF ¶ 107]. Furthermore, McKinnon stated Cruz did not 

take Melendez from VIP. [SMF ¶ 105]. Therefore, VIP suffered no damages. See e.g. Air Caledonie

Int'l v. AAR Parts Trading, Inc., 315 F. Supp. 2d 1319, 1343 (S.D. Fla. 2004) (“Moreover, damages 

for lost profits, like all contractual damages, must flow from the breach.”). 

III. There is no evidence that Cruz divulged confidential information. 

VIP also stated that Cruz “divulged confidential information to Y.I, C.I. and A.G.M., and 

acknowledged that she would complain to VIP clients about the payment and work hours process 

4 Angela Melendez is referred to as A.G.M. throughout VIP’s Motion for Summary Judgment. 

Case 0:22-cv-61553-WPD Document 74 Entered on FLSD Docket 08/02/2023 Page 17 of 20
of VIP.” [ECF No. 57 at 19]. Due to the conjunctive nature of the sentence, it is unclear whether 

VIP is alleging that Cruz divulged confidential information by complaining to clients about nonpayment and work hours, or if VIP is alleging separate incidents where Cruz breached the contract. 

Assuming the former, VIP does not explain what terms of the contract Cruz breached. Instead, 

VIP continues mischaracterizing witness testimony to prove a point unrelated to a breach. 

VIP’s Statement of Material Facts says Cruz “threatened” Melendez to pay her directly 

because all VIP owed her money. [SMF ¶ 61]. To support this allegation, VIP cites to the statement

Melendez drafted in her own handwriting, but she never mentions this threat anywhere. [SMF 

SMF ¶ 62]. Here again, we see VIP blatantly fabricating evidence, which has nothing to do with 

the original point of confidential information being divulged. VIP also cites to a place in Ramirez’s 

deposition where Cruz purportedly made the threat. [SMF ¶ 61]. Ramirez’s deposition testimony 

is less than credible considering Melendez never mentioned this threat in her own statement. 

Despite the credibility concern, VIP never explained what confidential information was divulged 

by the threat. And, even if this dubious threat breached the contract, VIP has no damages because 

Cruz did not cause Melendez to leave the agency. [SMF ¶¶ 105, 106, 107, 108]. See Air Caledonie 

Int'l, supra.

Next, VIP attempts to demonstrate a breach because Cruz complained to clients that she 

was owed hours and not being paid. [SMF ¶¶ 62,64]. VIP does not explain how complaining to 

clients about not being paid breaches their contract. And more importantly, VIP does not explain 

what confidential information was divulged. There is nothing for Cruz to dispute regarding this 

allegation. However, if the Court finds the complaints are a material breach, then there are no 

damages because Cruz did not cause Melendez to leave VIP [SMF ¶¶ 104, 105, 106, 107], and

the Iziques parted ways with VIP for reasons unrelated to Cruz’s complaints. [SMF ¶¶ 67, 97]. See 

Air Caledonie Int'l, supra.

Case 0:22-cv-61553-WPD Document 74 Entered on FLSD Docket 08/02/2023 Page 18 of 20
VIP did not suffer reputational damage for those same reasons. The Google review 

referenced by VIP is not in the summary judgment record so this Court cannot verify the accuracy 

of any statements made in it. Even if the review was in the record, it contains hearsay that is 

inadmissible. See Macuba v. Deboer, supra. If the Court considers the hearsay, VIP has not explained 

what direct harm resulted from the Google review such that their reputation was damaged. See Air 

Caledonie Int'l, supra; see also K3 Enterprises, Inc. v. Sasowski, 2022 WL 17987272, at *2 (S.D. Fla. Sept. 

8, 2022) (“[F]or many contracts, reputational harm is not a type of injury that arises naturally or 

flows from breach.) (internal quotations and citations omitted); see also Harter v. Ohio Sec. Ins. Co., 

2020 WL 6384159, at *1 (M.D. Fla. Sept. 1, 2020 (noting that consequential damages may be 

recoverable in a breach of contract action if the damages were contemplated by the parties and 

can be proven with reasonable certainty). Finally, the Google review does not specifically mention 

Cruz’s name, but instead it generally references home health aides that complained about not 

being paid by VIP. [SMF ¶ 69].

III. CONCLUSION

This Court must deny VIP’s Amended Motion for Summary Judgment and find that Cruz 

was their employee. It is clear that VIP controlled nearly every aspect of the working arrangement 

with Cruz after analyzing the Scantland factors. VIP’s attempt to position itself as a neutral 

matchmaker falls flat because the agency involved itself in every aspect of the client-caregiver 

relationship. All Cruz had to do was show up to the client’s house to provide a service. As many of 

the cited cases demonstrate, home health care agencies and nurse registries can have “employees”

under the FLSA, and Cruz was such an employee. VIP also cannot prevail on its breach of contract 

claim because it never explained what specific terms were violated, and the majority of its evidence 

cannot be considered for summary judgment purposes. Finally, VIP suffered no damages because 

the Iziques chose to leave and Melendez chose to stay; Cruz had no influence on their decisions. 

Case 0:22-cv-61553-WPD Document 74 Entered on FLSD Docket 08/02/2023 Page 19 of 20
CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was served 

electronically on August 2, 2023 with the Clerk of Court using the CM/ECF filing system.

s/Toussaint Cummings, Esq.

Toussaint Cummings, Esq. (119877)

toussaint@fairlawattorney.com

FAIRLAW FIRM

135 San Lorenzo Avenue

Suite 770

Coral Gables, FL 33146

Tel: 305.230.4884

Counsel for Plaintiff

Case 0:22-cv-61553-WPD Document 74 Entered on FLSD Docket 08/02/2023 Page 20 of 20