McKay v. Miami-Dade Cnty.

• Citation: 36 F.4th 1128
• Decision Date: 09 June 2022
• Docket Number: 20-14044
• Parties: Brandi MCKAY, Plaintiff-Appellant, v. MIAMI-DADE COUNTY, a Municipal Corporation, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

36 F.4th 1128

Brandi MCKAY, Plaintiff-Appellant,

v.MIAMI-DADE COUNTY, a Municipal Corporation, Defendant-Appellee.

No. 20-14044

United States Court of Appeals, Eleventh Circuit.

Filed June 9, 2022

Robert S. Norell, Robert S. Norell, PA, Plantation, FL, James Allen Peterson, Peterson Legal, PA, Fort Lauderdale, FL, for Plaintiff-Appellant.

Leona Nicole McFarlane, Miami-Dade County Attorney's Office, MIAMI, FL, for Defendant-Appellee.

Before Jordan, Jill Pryor, and Tjoflat, Circuit Judges.

Tjoflat, Circuit Judge:

Brandi McKay appeals the District Court's summary judgment denying her claims under the Fair Labor Standards Act of 1938 ("FLSA"), 29 U.S.C. § 201 et seq. , for minimum wage and overtime payments. McKay claims that she was an employee of Miami-Dade County while she participated in the County's autopsy forensic photography training program. As we agree with the District Court that McKay was an intern, not an employee, we affirm.

I.¹

McKay applied for Miami-Dade County's Medical Examiner's Forensic Imaging Preceptorship Program ("the Program") in 2016. She first heard of the Program while visiting Barry College to learn about the school's forensic photography degree program. McKay ultimately elected not to apply to Barry College or any other forensic photography degree program, choosing instead to apply to Miami-Dade County's highly regarded Program and avoid "another four years of school."² McKay understood that the Program was free, six-months long, unpaid, and required weekend work. When she applied, McKay had no experience with any of the state-of-the-art equipment used during the Program, other than a Nikon camera.

After some delay, McKay officially began her internship on April 15, 2019. For the first two weeks of the Program, McKay completed workbook assignments provided by the Program. During weeks three and four, McKay received training in the morgue and shadowed County staff photographers as they took forensic autopsy photographs. In weeks five through eight, McKay and another intern worked together in the morgue taking autopsy photos, sometimes with staff supervision and sometimes without. After week eight and for the remainder of her time in the Program, McKay and another intern alternated between working weeks in the morgue. On McKay's on-weeks, which included weekends, she took autopsy photographs with little supervision, unless she needed training on equipment that she had not previously used. On McKay's off-weeks, she completed assignments in the Program office. While the parties dispute the amount of feedback McKay received after week eight, they agree McKay received feedback before week eight and that McKay received no written evaluations of her performance. McKay's participation in the Program ended on September 10, 2019, about a month before her internship was scheduled to end.

McKay filed the instant suit against Miami-Dade County on February 12, 2020, seeking minimum wage and overtime payments under the FLSA. McKay claimed she was a county employee and that the County abused the Program to "save[ ] labor costs." The County responded by arguing that McKay was never a county employee. The parties filed cross-motions for summary judgment on July 17, 2020; as part of these cross-motions, the parties stipulated that McKay's participation in the Program "was not motivated in any part by civic, charitable, or humanitarian reasons" and was instead solely to acquire "training in forensic photography." The District Court determined that McKay was an intern, not an employee, using the primary beneficiary test adopted by the Eleventh Circuit in Schumann v. Collier Anesthesia, P.A. , 803 F.3d 1199 (11th Cir. 2015), and so denied McKay's motion and granted the County's. McKay timely appealed.

II.

We review the grant of summary judgment de novo . Hornsby-Culpepper v. Ware , 906 F.3d 1302, 1311 (11th Cir. 2018). Summary judgment is appropriate if there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). On summary judgment, we view the evidence and draw all reasonable inferences in the light most favorable to the non-movant. Ware , 906 F.3d at 1311.

III.

To receive minimum wage and overtime payments under the FLSA, McKay must show that she is an employee within the meaning of the statute. 29 U.S.C. §§ 206(a), 207(a)(1). Unfortunately, the FLSA does not provide much guidance on who exactly is an "employee," defining the term as "any individual employed by an employer." 29 U.S.C. § 203(e)(1). To "employ" is defined as "to suffer or permit to work." § 203(g). "Employer," meanwhile, is defined as "any person acting directly or indirectly in the interest of an employer in relation to an employee and includes a public agency." § 203(d). While these definitions are frustratingly circular, we have held that they are intended to encompass "the broadest possible delineations of the employer-employee relationship." Garcia-Celestino v. Ruiz Harvesting, Inc. , 843 F.3d 1276, 1287 (11th Cir. 2016) (citing United States v. Rosenwasser , 323 U.S. 360, 362–63 & n.3, 65 S. Ct. 295, 296–97 & n.3, 89 L.Ed. 301 (1945) ). This "broad general definition" thus "strongly suggests that Congress intended an all encompassing definition of the term ‘employee’ that would include all workers not specifically excepted." Patel v. Quality Inn S. , 846 F.2d 700, 702 (11th Cir. 1988).

Miami-Dade County contends that two such exceptions apply to McKay's participation in the Program: the volunteer exception for public agencies found in § 203(4)(A) and the internship exception established by Supreme Court and Eleventh Circuit caselaw. Schumann , 803 F.3d at 1208–12 (citing Walling v. Portland Terminal Co. , 330 U.S. 148, 152–53, 67 S. Ct. 639, 641, 91 L.Ed. 809 (1947) ). McKay responds that Congress replaced the internship exception with the volunteer exception for public agencies when it amended the FLSA in 1985, and that McKay was not a volunteer under the statute. In Part A, we discuss the relationship between the caselaw internship exception and the statutory volunteer exception and conclude that both exceptions apply to public agencies. In Part B, we analyze whether McKay was a volunteer or an intern under these exceptions and conclude that she was an intern but not a volunteer.

A.

To understand why both the caselaw internship exception and the statutory volunteer exception apply to public agencies, we begin by discussing the history and purposes of both exceptions. "Congress enacted the FLSA in 1938 with the goal of ‘protecting all covered workers from substandard wages and oppressive working hours.’ " Christopher v. SmithKline Beecham Corp. , 567 U.S. 142, 147, 132 S. Ct. 2156, 2162, 183 L.Ed.2d 153 (2012) (alteration adopted) (quoting Barrentine v. Arkansas-Best Freight Sys., Inc. , 450 U.S. 728, 739, 101 S. Ct. 1437, 1444, 67 L.Ed.2d 641 (1981) ); see also 29 U.S.C § 202(a). While the Supreme Court had previously held that FLSA exceptions "must ... be narrowly construed" to give effect to the FLSA's "humanitarian and remedial" purposes, A.H. Phillips, Inc. v. Walling , 324 U.S. 490, 493, 65 S. Ct. 807, 808, 89 L.Ed. 1095 (1945), the Court has recently rejected that view, opting instead to interpret the FLSA "fair[ly]." Encino Motorcars, LLC v. Navarro , ––– U.S. ––––, 138 S. Ct. 1134, 1142, 200 L.Ed.2d 433 (2018) ; Ramirez v. Statewide Harvesting & Hauling , 997 F.3d 1356, 1359 (11th Cir. 2021). With the Supreme Court's instruction to give the FLSA a "fair reading" in mind, we turn to the two exceptions under consideration. Encino Motorcars , 138 S. Ct. at 1142.

The internship exception derives from Portland Terminal , a 1947 Supreme Court case concerning whether railroad trainees were employees under the FLSA. 330 U.S. at 149–150, 67 S. Ct. at 640. In Portland Terminal , a railroad company offered an unpaid, weeklong training course for prospective yard brakeman. Id. at 149, 67 S. Ct. at 640. The railroad required that all prospective yard brakeman complete this training course to be considered for employment. Id. Upon satisfactory completion of the training course, trainee brakemen were certified by the railroad and then placed on a list of qualified workers. Id. at 150, 67 S. Ct. at 640. To decide whether these trainees were employees, the Supreme Court began by holding that common law definitions of "employer" and "employee" were inapplicable, because the FLSA contained its own broad definitions. Id. at 150–51, 67 S. Ct. at 640. Accordingly, the Court analyzed the statutory definition of "employ," "to suffer or permit to work," and held that it was "obviously not intended to stamp all persons as employees who, without any express or implied compensation agreement, might work for their own advantage on the premises of another." Id. at 152, 67 S. Ct. at 641 ; see also § 203(g). The Court then analogized the railroad's training course to public and private vocational school programs, holding that the FLSA "was not intended to penalize railroads for providing, free of charge, the same kind of instruction [as a school] at a place and in a manner which would most greatly benefit the trainees." Portland Terminal , 330 U.S. at 152–53, 67 S. Ct. at 641. Sixty-eight years later, this Court applied Portland Terminal to modern intern-employer relationships and held that interns, students, and other trainees who were the primary beneficiaries of a training or educational program were not employees under the FLSA. Schumann , 803 F.3d at 1208–12.³ While Schumann and Portland Terminal concerned programs run by private enterprises, neither of these cases explicitly limited the internship exception to private enterprises. See generally id. ; see generally Portland Terminal , 330 U.S. at 152–53, 67 S. Ct. at 641. Further, the FLSA does not differentiate between public and private work in the definition of "employ." § 203(g).

In contrast, the statutory volunteer exception for public...