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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CRUZ VALDIVIESO FIGUERA, CASE NO: 0:22-CV-61553-WPD

Plaintiff, 

v.

ALL VIP CARE, INC., & LIZ

VELAZQUEZ McKINNON,

Defendants. 

__________________________________________/

DEFENDANTS’ REPLY STATEMENT OF

MATERIAL FACTS IN SUPPORT OF ITS REPLY TO PLAINTIFF’S RESPONSE TO 

DEFENDANT’S AMENDED MOTION FOR SUMMARY JUDGMENT

The Defendants, ALL VIP CARE, INC. (“VIP”) and LIZ VELAZQUEZ McKINNON, 

(“McKinnon”) (collectively referred to as the “Defendants”), pursuant to and in accordance with 

Fed. R. Civ. P. 56 and the Southern District of Florida’s Local Rule 56.1(a) hereby file and submit 

their Reply Statement of Material Facts in support of their Reply to Plaintiff, CRUZ 

VALDIVIESO FIGUERA (“Cruz”), Response to Defendants’ Amended Motion for Summary 

Judgment (ECF No. 75) and states as follows:

Additional Facts

70. Undisputed. However, Cruz had the right to accept or reject her hours or a particular 

job to provide services to VIP clients. [ECF No. 58 - Def. Am. SOMF at ¶ 21-22]. 

71. Disputed. The timesheets listed the scope of services Home Health Aides (“HHAs”) 

and Certified Nursing Assistant (“CNAs”) approved by the Florida Agency for Health Care 

Administration (“AHCA”), which the HHA and CNA marked which services they provided 

according to the client needs. [Depo. of McKinnon, ECF No. 58-1, Def. Ex. F, at p. 40 ln. 3-7, p. 

41 ln. 6-25].

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72. Disputed. The client’s health insurer, Medicare, or Medicaid plans1authorizes the 

hours assigned by VIP to provide HHA services to the client. [Depo. of Ramirez, ECF 58-1 - Def. 

Ex. E, at p. 51 ln. 6-11; Depo. of McKinnon, ECF No. 58-1, Def. Ex. F, at p. 19 ln. 22-25, p. 20 

ln. 19-21, p. 39 ln. 9-12]. 

73. Undisputed. 

74. Undisputed. However, the requirement to turn in the timesheets to VIP was so that 

VIP could submit the timesheets to the client’s health insurer, Medicare, or Medicaid plans for 

reimbursement so that HHAs, like Cruz, can be paid in accordance with the health insurer 

authorized hours. [Depo. of McKinnon, ECF No. 58-1, Def. Ex. F, at p. 42 ln. 18-23, p. 53 ln. 12-

25; Depo. of Ramirez, ECF No. 58-1, Def. Ex. E, at p. 59 ln. 1-6].

75. Undisputed. 

76. Undisputed. 

77. Disputed. Cruz was explained her obligations as independent contractor because 

she did not understand English. [Def. SOMF at ¶50; Depo. of Ramirez, ECF No. 58-1, Def. Ex. E, 

at p. 26 ln. 21-25, p. 27 ln. 5-19]. 

78. Disputed. Plaintiff mischaracterizes the line of questioning cited in the Depo. of 

Ramirez. Caregivers, such as Cruz, are required to contact VIP if they could not work certain hours 

that were on their schedule “so that [VIP] can find a substitute for them to fill in those hours” that 

were previously agreed by Cruz to work. [Depo. of Ramirez, ECF No. 58-1, Def. Ex. E, at p. 116 

ln. 18-25] (Emphasis Added). This does not have any bearing on whether Cruz was allowed to 

send anyone with her to provide her services to clients. 

79. Disputed. This is duplicative of Plaintiff’s Statement of Material Facts number 71. 

1 Plaintiff correctly assumes that the term “payor” refers to Medicaid, and any other health insurer plan of 

VIP clients. See Def. Reply to Pl. Resp. to Def. Mot. Summ. J. at 2. 

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See Def. RSOMF at ¶ 71. 

80. Undisputed. However, VIP did not prevent Cruz from having other employment or 

contractual relationships not involving VIP clients. See Def. RSMOF at ¶ 34.

81. Undisputed.

82. Disputed that HHAs do not obtain a license as opposed to a certification. [Depo. of 

Cruz, ECF No. 58-1, Def. Ex. D, at p. 12 ln. 24-25, p. 12 ln. 1-4]. To be eligible for contracting 

with VIP as an HHA, Cruz had to obtain other certifications, such as her HIVA certificate, CEU, 

CPR certificate, and medication management certificate as required by Florida law. [Depo. of 

McKinnon, ECF No. 58-1, Def. Ex. F, at p. 27 ln. 14-23].

83. Undisputed. 

84. Disputed. Non-medical services also include “assisting with prescribed range of 

motion exercises”, “measuring intake and output fluids,” “measuring temperature, pulse, 

respiration or blood pressure,” “keeping records of personal health care activities,” and “provide[] 

assistance with a client’s self-administration of medication.” [ICA, ECF No. 58-1, Def. Ex. C, at 

000022].

85. Undisputed. 

86. Undisputed.

87. Undisputed. However, HHAs must maintain “continuing education” and a “current 

CPR certification” to contract with VIP. [ICA, ECF No. 58-1, Def. Ex. C, at 000021]; see also 

Def. RSOMF at ¶¶ 82, 84 above. Thus, Cruz’ work required different certifications training, and 

other skills. Id. 

88. Undisputed. 

89. Disputed. Cruz worked with three clients simultaneously. [Depo. of Cruz, ECF No. 

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58-1, Def. Ex. C, at p. 34 ln. 11-13]. 

90. Disputed. The “Suspension and Termination” clause contemplates the “contractor 

relationship term of the contract “for successive one (1) year terms, unless sooner terminated. . ..” 

ICA, ECF No. 58-1, Def. Ex. C, at 000014] (Emphasis Added).

91. Disputed. VIP made the decision to end its contractual relationship with Cruz 

because Cruz was working unauthorized hours and expecting payment from the client’s Medicaid 

plan for such unauthorized payments, and was logging hours she did not work. [Depo. of Ramirez, 

ECF No. 58-1, Def. Ex. D, at p. 67 ln. 1-21, p. 134 ln. 1-5]. 

92. Disputed. VIP serves as the middleman between the client and the insurance 

company as a nurse registry and connects the caregiver to the client as the client’s employee. 

[Depo. of McKinnon, ECF No. 58-1, Def. Ex. F, at p. 27 ln. 12-13, p. 33 ln. 23-25].

93. Undisputed.

94. Disputed. Ramirez, not VIP nor VIP’s corporate representative, referred to a 

caregiver as HHAs, CNAs, and nurses for purposes of the Depo. of Diana Ramirez. [Depo. of 

Ramirez, ECF No. 58-1, Def. Ex. E, at p. 21 ln. 3-5].

95. Undisputed.

96. Undisputed.

97. Disputed. Rowland had a problem with VIP because Cruz was not paid for 

unauthorized hours during Cruz’ contracting relationship with VIP after Cruz complained about 

this alleged non-payment. [Depo. of Ramirez, ECF No. 58-1, Def. Ex. E, at p. 67 ln. 1-21, p. 43 

ln. 9-15]. Cruz’ first language is Spanish and telling then-VIP clients C.I. and Y.I. (the “Izique’s”) 

“had multiple caregivers.” [Depo. of McKinnon, ECF No. 58-1, Def. Ex. F, at p. 89 ln. 23; Depo.

of Cruz, ECF No. 58-1, Def. Ex. D, at p. 43 ln. 23-25]. 

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98. Undisputed.

99. Disputed. McKinnon also learned about Cruz telling the Izique’s to leave VIP from 

Ramirez, and the client’s Humana plan’s confirmation of Cruz taking VIP clients. [Depo. of 

McKinnon, ECF No. 58-1, Def. Ex. F, at p. 115 ln. 14-18, p. 116 ln. 19-25].

100. Disputed. See Def. RSMOF at ¶ 99.

101. Undisputed. However, the Iziques stated that they were sorry for Cruz as a result of 

Cruz misrepresenting that VIP did not want to pay Cruz to the point where Cruz kept threatening 

the clients. [Depo. of Ramirez, ECF No. 58-1, Def. Ex. E, at p. 99 ln. 1-11; Depo of Cruz, ECF 

No. 58-1, Def. Ex. D, at p. 42 ln. 16-25, p. 43 ln. 1-4].

102. Undisputed.

103. Undisputed. 

104. Disputed. When Cruz was no longer working at VIP, she called VIP client, A.G.M., 

and informed her that Cruz was “going to another agency,” and attempted to convince A.G.M. to 

follow her to her new job. [Affidavit of A.G.M., ECF No. 58-1, Def. Ex. G, at 2].

105. Undisputed.

106. Undisputed.

107. Disputed. Cruz communicated with the Izique’s, that Cruz was not getting paid and 

was going to another nurse registry to work. In response, the Izique’s stated that they “are leaving 

VIP also, then.” [Depo. of Cruz, ECF No. 58-1, Def. Ex. D, at p. 42 ln. 20-25, p. 43 ln. 19-22; 

Depo. of Ramirez, ECF No. 58-1, Def. Ex. E, at p. 99 ln. 12-17]. These conversations occurred 

while Cruz was in a contractual relationship with VIP. Id.

108. Undisputed. 

109. Undisputed.

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Respectfully submitted:

/s/ RANDY M. GOLDBERG, ESQUIRE

Florida Healthcare Law Firm

151 NW 1st Avenue

Delray Beach, FL 33444

754-224-0867

FBN: 045187

randy@floridahealthcarelawfirm.com

randymgoldberg@gmail.com

CERTIFICATION OF SERVICE

I hereby certify that a copy of this pleading which was filed with the Clerk of the Court 

was provided to Toussaint Cummings, Esq., Counsel for Plaintiff, at 135 San Lorenzo Ave., Ste. 

770, Coral Gables, FL 33146, toussaint@fairlawattorney.com via the Court’s ECM/ECF Portal on 

August 7, 2023.

/s/ RANDY M. GOLDBERG, ESQUIRE

Florida Healthcare Law Firm

151 NW 1st Avenue

Delray Beach, FL 33444

754-224-0867

FBN: 045187

randy@floridahealthcarelawfirm.com

randymgoldberg@gmail.com

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