FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

OCT 23, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-10097

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D.C. Docket No. 07-20089 CV-CMA

ISMAEL PERDOMO,

Plaintiff-Appellant,

versus

ASK 4 REALTY & MANAGEMENT, INC.,

REAL ESTATE DEPOT, INC.,

ALAN KLASFELD,

Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Southern District of Florida

________________________

(October 23, 2008)

Before ANDERSON, BARKETT and COX, Circuit Judges.

PER CURIAM:
Fromapproximately July 2000 to September 2005, Ismael Perdomo performed

work for Ask 4 Realty & Management, Inc., Real Estate Depot, Inc., and Alan

Klasfeld (collectively, the “Defendants”). Perdomo sued the Defendants seeking

overtime wages for the period of July 2000 to December 31, 2004, and wages for the

work performed in 2005. Perdomo’s claim is based upon the Fair Labor Standards

Act (“FLSA”), 29 U.S.C. §§ 201 etseq. The district court granted summary judgment

for the Defendants, holding that, given the undisputed facts, Perdomo was an

independent contractor and not an “employee” of the Defendants as defined by 29

U.S.C. § 203(e) of the FLSA, and so had no right to sue under its overtime or wage

provisions. 

Perdomo appeals the district court’s grant of summary judgment, arguing first

that the determination of employee status is a question of fact, not of law. Second,

Perdomo argues that the district court erred in determining he was an independent

contractor and not an employee under the FLSA.

First, the district court did not err in determining Perdomo’s status as an

independent contract as a matter of law. We have held that “[a] determination of

employment status under the FLSA and the AWPA is a question of law subject to our

de novo review.” Antenor v. D & S Farms, 88 F.3d 925, 929 (11th Cir. 1996).

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Second, the district court did not err in determining that Perdomo was an

independent contractor and thus could not avail himself of the wage and overtime

provisions of the FLSA. (R.1-50 at 9-10.) To determine whether Perdomo was an

employee or an independent contractor, we must apply the multi-factor economic

realities test. Antenor, 88 F.3d at 933. No one factor is determinative, and each

factor should be given weight according to how much light it sheds on the nature of

the economic dependence of the putative employee on the employer. Id. at 928-33.

Although our review of the district court’s determination of Perdomo’s

employment statusis de novo, our analysis closely resemblesthat ofthe district court. 

We agree with the district court’s determination that Perdomo was an independent

contractor, and affirm the district court’s grant of summary judgment.

One aspect of the district court’s order meritsfurther discussion, however. The

district court, in its analysis of Perdomo’s opportunity for profit and loss,

characterized the Defendants’ $200 biweekly payment to Perdomo as a salary. Based

on the undisputed evidence before the district court, we think it more appropriate to

characterize this payment as a draw.

The district court cited Klasfield’s deposition (R.1-38 Ex. B at 20-21) for the

proposition that Perdomo received a salary. (R.1-50 at 7.) But Klasfield never

characterizes the biweekly pay as a salary; that word is exclusively used by

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Perdomo’s lawyer. (R.1-38 Ex. B at 20-21.) Indeed, in his statement of material facts

in his reply brief in support of his motion for summary judgment, Klasfield

characterizes the biweekly pay as part of Perdomo’s per-job compensation and cites

to pages 15 and 41 of his deposition in support. (R.1-43 at 2.) At page 41 of his

deposition, Klasfield says that the “$100 a week was basically just an advance against

the work that he was doing.” (R.1-38 Ex. B at 41.) Perdomo does not cite any

evidence in his response brief to the Defendants’ motion for summary judgment or

in his own motion for partial summary judgment that contradicts Klasfeld’s

characterization ofthe biweekly pay as a draw. Accordingly, the undisputed evidence

shows that the $200 biweekly payment was a draw, not a salary.

Because we agree with the district court’s determination that Perdomo was an

independent contractor, we affirm the district court’s grant of summary judgment for

the Defendants.

AFFIRMED.

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