FILED 

U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 JUNE 10, 2005 

 THOMAS K. KAHN 

 CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 04-15270 

________________________

D.C. Docket No. 02-23207-CV-SH 

SERGIO POSADA,

 Plaintiff-Appellant,

versus

JAMES CELLO, INC., 

JAMES PANICELLO, 

 Defendants-Appellees.

__________________________

Appeal from the United States District Court for the

Southern District of Florida

_________________________

(June 10, 2005)

Before ANDERSON, BIRCH and BARKETT, Circuit Judges.

PER CURIAM:

Sergio Posada appeals the district court’s order granting summary judgment

in favor of James Cello, Inc. (“Cello”) and James Panicello (“Panicello”) in his
The original time cards had been misplaced by Cello until subsequent to the 1

summary judgment hearing, and they were not considered by the district court. The original time

cards are not present with the record on appeal. 

2

lawsuit alleging violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C.

§ 201, et seq., and retaliatory discharge pursuant to Florida Statute (“FS”)

§ 440.205. Posada alleges on appeal that the district court erred in granting

summary judgment as to each of his claims. 

In the district court, Cello presented copies of the fronts of time cards

purporting to show that Posada worked for the company from June 2001 until May

2002. James Panicello testified consistently with the time cards and stated that

Posada never worked overtime for Cello. He testified that in May 2002 the

company learned that Posada had provided a false social security card, and that

Posada left Cello and did not return to work after being confronted with the issue.

Panicello was unaware that Posada was injured on the job.

Posada and his supervisor, Elias Tobchi, each testified that Posada worked

overtime hours for which he either was not compensated or was not compensated

at an overtime rate. They also both testified that Posada’s overtime hours were

recorded on the backs of the time cards, and that Posada worked at Cello until

1

August or September of 2002, but was paid “under the table” after May 2002. 

They testified that Posada injured his hand on the job in September 2002, and that
3

he informed Cello of the injury and asked for medical treatment. Finally, Posada

and Tobchi testified that Cello terminated Posada’s employment several weeks

after the injury.

I. Fair Labor Standards Act Claim

Posada argues that the district court erred by finding that he produced

insufficient evidence to support his claim for overtime compensation. He cites the

following as evidence sufficient to survive a motion for summary judgment on this

claim: (1) the copies of the time cards did not reflect the overtime hours that

Posada and Tobchi testified were recorded on the back; and (2) Posada and Tobchi

testified that Posada worked overtime hours for which he was sometimes paid cash

at a rate of straight pay, and for which he was sometimes not paid. 

We review “de novo a district court’s grant of summary judgment, applying

the same legal standards as the district court.” Chapman v. AI Transp., 229 F.3d

1012, 1023 (11th Cir. 2000) (en banc). A court shall grant summary judgment

when the evidence before it shows “that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of

law.” Fed.R.Civ.P. 56(c). Rule 56 mandates the entry of summary judgment,

upon motion, against a party who fails to make a showing sufficient to establish an

element essential to his case on which he bears the burden of proof at trial. 
4

Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265

(1986). “In making this determination, the court must view all evidence and make

all reasonable inferences in favor of the party opposing summary judgment.” 

Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995). In evaluating a

motion for summary judgment, the judge’s role is not to weigh the evidence or to

assess credibility, but to determine whether there is a genuine issue for trial. 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251,106 S.Ct. 2505, 2511, 91

L.Ed.2d 202 (1986). “Sufficient” evidence is that which is more than “merely

colorable” and is “significantly probative.” Liberty Lobby, 477 U.S. at 250-51,

106 S.Ct. at 2511. The FSLA requires that employers compensate covered

employees for hours worked in excess of forty per week at one and one half times

their regular pay rate. 29 U.S.C. § 207(a)(1). 

In granting the motion for summary judgment, the district court relied upon

Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687, 66 S.Ct. 1187, 1192, 90

L.Ed. 1515 (1946). In that case, the Supreme Court held that the employee bears

the initial burden to show the amount of hours worked, which is most easily met

by securing the production of the employer’s records. Mt. Clemens Pottery Co.,

328 U.S. at 687-88. If the employer has not kept adequate time records, the

employee must either offer convincing substitutes or otherwise prove that he has
5

in fact performed work for which he was improperly compensated, such as by

producing sufficient evidence of the amount and extent of that work as a matter of

just and reasonable inference. Id. 

In the context of summary judgment, the district court’s finding that the

records were accurate, as a matter of law, is contradicted by the record. Posada

and Tobchi’s testimony constituted evidence sufficient to raise a factual issue as to

whether Posada actually worked overtime hours for which he was not properly

compensated. The requirement of Rule 56 to produce evidence sufficient to create

a genuine issue of material fact was therefore met. Accordingly, we vacate and

remand as to the FLSA claim. 

II. Florida Retaliation Claim

Posada argues on appeal that the temporal proximity between his request for

worker’s compensation benefits and the alleged termination of his employment

established a prima facie case. He argues that the district court improperly applied

FS § 440.205, and that Tobchi’s and his testimony adequately supported his claim

to overcome a grant of summary judgment. 

Florida Statute § 440.205 provides that: “No employer shall discharge,

threaten to discharge, intimidate, or coerce any employee by reason of such

employee's valid claim for compensation or attempt to claim compensation under
6

the Workers' Compensation Law.” F.S.A. § 440.25. The express terms of the

statute provide that claiming or attempting to claim worker’s compensation

benefits constitutes a protected activity. F.S.A.§ 440.25; see Clover v. Total

System Services, Inc., 176 F.3d 1346 (11th Cir. 1999). 

In an retaliatory discharge context, a plaintiff may use a showing of “close”

temporal proximity between the protected expression and the adverse employment

action to establish causation. Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir.

2004)(reviewing temporal proximity in the context of a retaliation claim brought

pursuant to the Americans with Disabilities Act of 1990, § 503(a), 42 U.S.C.A. §

12203(a)). We have held that a period of as much as one month between the

protected expression and the adverse action is not too protracted to establish a

prima facie claim of retaliation. Higdon, 393 F.3d. at 1220.

Posada presented testimony that, while employed by Cello, he requested

worker’s compensation benefits for an on-the-job injury that occurred on or about

September 16, 2002. He also presented testimony that his employment was

terminated in late September or early October 2002 after he requested worker’s

compensation benefits. This testimony was a basis upon which a jury might find

that Cello was aware of his injury, and that it discharged him based, in whole or in

part, upon his request for worker’s compensation benefits. The record reflects
Cello’s request for sanctions is denied. Posada’s request for oral argument is

2

denied.

7

other contradictory facts: that Cello later denied employing Posada after May

2002; that it paid him cash upon notification of his injury but otherwise declined

to provide him with the name of its worker’s compensation physician; and that one

of its employees (Tobchi) suggested that Posada misrepresent the nature of his

injury to medical authorities, ostensibly for reasons related to Posada’s inaccurate

social security number.

Upon review of the record, we find dispute as to the circumstances of

Posada’s termination such that summary judgment on this claim was

inappropriate. Accordingly, we vacate and remand the district court’s grant of

summary judgment as to the retaliation claim.

VACATED AND REMANDED.

2