govinfo:USCOURTS-flsd-1_24-cv-20968-0

UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF FLORIDA 
 
CASE NO. 24-20968-CIV-ALTONAGA/Reid 
 
LISSET INFANTE, 
 
Plaintiff, 
v. 
 
JEWISH COMMUNITY SERVICES 
OF SOUTH FLORIDA, INC., 
 
Defendant. 
_________________________________/ 
 
ORDER
 
THIS CAUSE came before the Court upon Defendant, Jewish Community Services of 
South Florida, Inc.’s Motion for Summary Judgment [ECF No. 38]; and Plaintiff, Lisset Infante’s 
Motion for Partial Summary Judgment [ECF No. 42].  Defendant and Plaintiff each filed respective 
Responses [ECF Nos. 45, 48]; followed by Replies [ECF Nos. 50, 56].  The Court has carefully 
considered the record, the parties’ written submissions, and applicable law.1   
I.  BACKGROUND 
 
 Defendant is a nonprofit organization that provides social services to minors.  ( See Pl.’s 
SOF Exs., Ex. 9, Employee Handbook [ECF No. 35- 9] 5–6).2  Plaintiff worked for Defendant as 
 
1 The parties’ factual submissions include Defendant’s Statement of Undisputed Material Facts . . . (“Def.’s 
SOF”) [ECF No. 39]; Plaintiff’s Statement of Material Facts (“Pl.’s SOF”) [ECF No. 41]; Plaintiff’s Notice 
of Filing Exhibits in Relation to Plaintiff’s Statement of Facts (“Pl.’s SOF Exs.”) [ECF No. 35]; Defendant’s 
Response to Plaintiff’s Statement of M aterial Facts (“Def.’s Resp. SOF”) [ECF No. 46]; Plaintiff’s 
Responses to Defendant’s Statement of Undisputed Facts . . . (“Pl.’s Resp. SOF”) [ECF No. 49]; Plaintiff’s 
Reply to Additional Facts . . . (“Pl.’s Reply SOF”) [ECF No. 58]; and Plaintiff’s Notice of Filing [ECF No. 
47].  
 
2 The Court uses the pagination generated by the electronic CM/ECF database, which appears in the headers 
of all court filings.  Citations to deposition testimony rely on the pagination and line numbering in the 
original document. 
 
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a clinician, providing therapy to minors, from June 2021 to January 2024.  (See Pl.’s SOF ¶¶ 1–2; 
Def.’s Resp. SOF ¶¶ 1–2; see also Def.’s SOF ¶ 1; Pl.’s Resp. SOF ¶ 1 (disputed as phrased by 
Plaintiff on other grounds)). 3  This case arises from Defendant’s alleged failure to properly 
compensate Plaintiff, in violation of the  Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. 
section 207(a)(1), and Florida Statutes section 448.08.  ( See generally Notice of Removal [ECF 
No. 1], Ex. A, Composite (“Compl.”) [ECF No. 1-2] ¶¶ 8–27).  
The PACTT Program.  Plaintiff worked in Defendant’s “Providing Adolescents and 
Children with Trauma-Focused Treatment” (“PACTT”) program.  (See Def.’s SOF ¶ 1; Pl.’s Resp. 
SOF ¶ 1 (disputed as phrased by Plaintiff on other grounds)).  The PACTT program receives  
federal grant funding.  (See Def.’s SOF ¶ 9; Pl.’s Resp. SOF ¶ 9).  The grant comes with certain 
requirements, including that program  counselors have a master’s degree in a mental health field 
and are either a Registered Mental Health Counselor Intern (“RMHCI”) or Licensed Mental Health 
Counselor (“LMHC”).4  (See Def.’s SOF ¶¶ 5–10; Pl.’s Resp. SOF ¶¶ 5–10).  Defendant further 
requires its PACTT clinicians to have at least three years of clinical experience, including practice 
with clients who have suffered trauma.  (See Def.’s SOF ¶ 3; Pl.’s Resp. SOF ¶ 3).   
Per the grant’s requirements, clinicians working in the PACTT program must treat at least 
75 clients per year.  (See Def.’s SOF ¶¶ 13–14; Pl.’s Resp. SOF ¶¶ 13–14 (disputed as phrased)).  
 
3 Plaintiff responds to ma ny of Defendant’s statements of material fact by disputing the statements “as 
phrased.”  (See generally Pl.’s Resp. SOF; Pl.’s Reply SOF).  The Court considers whether Plaintiff has 
“clearly challenge[d] any purportedly material fact asserted by” Defendant  to evaluate if the fact “is 
genuinely in dispute.”  S.D. Fla. Local R. 56.1(a)(2) (alteration added). 
 
4 RMHCIs and LMHCs are Florida state designations for mental health counselors.  (See Def.’s SOF ¶¶ 5–
7; Pl.’s Resp. SOF ¶¶ 5–7).  Both RMHCIs and LMHCs must have a master’s level degree in mental health; 
RMHCIs may become LMHCs when they complete their licensure.  (See Def.’s Resp. SOF ¶¶ 35–38; Pl.’s 
Reply SOF ¶¶ 35–38; see also Pl.’s SOF Exs., Ex. 2, Dep. Tr. of Natalie Herradon (“Herradon Dep.”) [ECF 
No. 35- 2] 11:8– 12:14).  RMHCIs and LMHCs generally perform the same work, although RMHCIs 
necessarily have less work experience than LMHCs.  ( See Def.’s SOF ¶ 8; Pl.’s Resp. SOF ¶ 8; see also 
Herradon Dep. Tr. 12:1–14 (noting the “main distinguisher [betwe en a RMHCI and a LMHC] is the 
experience that the person would have within the field[]” (alterations added)).   
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Defendant requires its clinicians to see at least 18 clients per week to meet the grant quota.  ( See 
Pl.’s SOF ¶ 16 (“Plaintiff was first required to see a minimum of 20, then 18, unique clients 
weekly”); see also  Def.’s SOF ¶ 1 2 (“ PACTT clinicians, includ ing Plaintiff, were initially 
expected to each meet with twenty (20) clients per week, and this requirement was later reduced 
to eighteen (18) clients per week.”)).   
According to Plaintiff, the grant limited the kind of therapy she could provide as a PACTT 
program clinician; she asserts she could only employ the Trauma -Focused Cognitive Behavioral 
Therapy (“TF-CBT”) modality in treating clients .  ( See Pl.’s SOF ¶ 6; Def.’s Resp SOF ¶ 6 
(disputed by Defendant); but see Def.’s SOF ¶ 32 (“As a PACTT clinician , Plaintiff utilized the 
[TF-CBT] ‘modality’ for the treatment of her clients.” (alteration added)).  TF-CBT is a form of 
therapy that focuses on treatment for individuals who have suffered mental trauma; it provides its 
practitioners a set of guidelines  and recommendations on treating such patients .  (See Pl.’s SOF 
Exs., Ex. 1, Pl. ’s Dep. Tr. [ECF No. 35-1] 69:9–12; see also Def.’s Resp. SOF ¶ 60; Pl.’s Reply 
SOF ¶ 60).   
Plaintiff’s Training and Experience.  Prior to her employment with  Defendant, Plaintiff 
received a master’s degree in Counselor Education, had three years of relevant experience in the 
mental health field, and was a RMHCI.  (See Def.’s SOF ¶¶ 16–17, 20, 22; Pl.’s Resp. SOF ¶¶ 16–
17, 20, 22; see also Pl.’s SOF ¶ 3; Def.’s Resp. SOF ¶ 3).  Plaintiff became a LMHC on May 24, 
2023, during her employment with Defendant.  (See Def.’s SOF ¶ 21; Pl.’s Resp. SOF ¶ 21).  While 
working for Defendant, Plaintiff was always paid a salary of at least $979.17 per week.  (See Def.’s 
SOF ¶¶ 24–25; Pl.’s Resp. SOF ¶¶ 24–25).   
 When Plaintiff started working for Defendant, she received TF-CBT-specific training from 
Defendant’s employee, Ricardo Rubiales.  (See Def.’s SOF ¶ 34; Pl.’s Resp. SOF ¶ 34 (disputed 
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as phrased by Plaintiff, who states  this training was required)).  The  on-the-job training was 
conducted over a period of three-and-a-half days, followed by an additional six-month consultation 
period.  (See Def.’s SOF ¶ 37; Pl.’s Resp. SOF ¶ 37 (disputed as phrased by Plaintiff, who contends 
Defendant “required Plaintiff and the other clinicians to attend an extensive six- month virtual 
training course in order to learn and apply the TF-CBT modality”); see also Pl.’s SOF Exs., Ex. 8, 
Dep. Tr. of Ricardo Rubiales [ECF No. 35-8] 24:3–13).   
Plaintiff treated clients during both the training and consultation periods.  (See Def.’s SOF 
¶ 38; Pl.’s Resp. SOF ¶ 38 (disputed as phrased by Plaintiff, who acknowledges she saw patients 
during this time but st ates it was under “close supervision”)).  During the consultation period, 
Plaintiff met with Rubiales twice per month.  (See Def.’s SOF ¶ 37; Pl.’s Resp. SOF ¶ 37 (disputed 
as phrased by Plaintiff on other grounds)).  Rubiales never directed Plaintiff on how to diagnose 
or treat her clients.  (See Def.’s SOF ¶ 40; Pl.’s Resp. SOF ¶ 40 (disputed as phrased by Plaintiff 
on other grounds)).   
 Plaintiff’s Employment Duties.  While employed by Defendant, Plaintiff’s work centered 
around providing therapy, primarily to adolescents; and working with her clients’ parents, families, 
and caregivers to overcome her clients’ mental trauma.  ( See Def.’s SOF ¶¶ 30–31; Pl.’s Resp. 
SOF ¶¶ 30–31 (disputed as phrased by Plaintiff, who emphasizes this work was performed under 
the control and supervision of her superiors ); see also Compl. ¶ 11).  Plaintiff’s duties included: 
screening clients; providing weekly therapy sessions; scheduling client ses sions; diagnosing her 
clients; making treatment plans; recommending when clients had finished the PACTT program; 
making referrals to outside psychiatrists; completing documentation regarding her clients; and 
attending weekly meetings with her direct supervisor, Christina Lalama.  ( See Def.’s SOF ¶¶ 44, 
52, 54, 56, 59, 62–63, 65, 67; Pl.’s Resp. SOF ¶¶ 44, 52, 54, 56, 59, 62–63, 65, 67 (all except ¶ 62 
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disputed as phrased by Plaintiff, who emphasizes her duties were performed under close 
supervision and monitoring)). 
No supervisor was routinely present with Plaintiff while she conducted client screenings 
or therapy sessions.  (See Def.’s SOF ¶¶ 45, 68; Pl.’s Resp. SOF ¶¶ 45, 68 (disputed as phrased by 
Plaintiff, who asserts Lalama was responsible for final screening decisions , and Plaintiff was 
required to bring any client issues to her supervisor ).  The parties disagree as to the level of 
supervision for essentially every other one of Plaintiff’s job responsibilities.  (See, e.g., Def.’s SOF 
¶¶ 44–70; Pl.’s Resp. SOF ¶¶ 44–70).   
Plaintiff argues many, if not all, of her job duties required approval from her supervisors.  
(See Pl.’s SOF ¶¶ 11–13, 18–19; Def.’s Resp. SOF ¶¶ 11–13, 18–19 (disputed by Defendant)).  
For example, Plaintiff’s supervisors purportedly monitored her notes (see Pl.’s SOF ¶ 19; Def.’s 
Resp. SOF ¶ 19 (disputed by Defendant, who nevertheless states Lalama had access to Plaintiff’s 
notes)); and had final approval over Plaintiff’s screening decisions (see Pl.’s SOF ¶¶ 11, 14; Def.’s 
Resp. SOF ¶¶ 11, 14 (disputed by Defendant)), treatment plans (see Def.’s SOF ¶ 62; Pl.’s Resp. 
¶ 62), diagnoses (see Def.’s SOF ¶ 55; Pl.’s Resp. SOF ¶ 55 (disputed as phrased by Plaintiff, who 
contends Lalama had to give final approval of diagnoses)), and decisions to discharge clients from 
the PACTT program (see Def.’s SOF ¶ 61; Pl.’s Resp. SOF ¶ 61 (disputed as phrased by Plaintiff, 
who says the ultimate decision rested with Lalama)).   
The Claims  and Defenses .  Plaintiff  alleges two claims for relief  against Defendant: 
(1) failure to pay Plaintiff overtime wages, in violation of the FLSA; and (2) failure to pay Plaintiff 
the proper amount of standard wages under Florida Statutes section 448.08  and Florida common 
law.  (See Compl. ¶¶ 8–27).  Defendant filed an Amended Answer  and Affirmative Defenses to 
Plaintiff’s Complaint [ECF No. 21] asserting affirmative defenses, including that Plaintiff was a 
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learned professional, and Defendant acted in good faith to comply with the FLSA.  ( See id. 5–6).  
Defendant now moves for final summary judgment , and Plaintiff moves for partial summary 
judgment.  (See generally Def.’s Mot; Def.’s Reply; Pl.’s Mot.; Pl.’s Reply).   
II.  LEGAL STANDARD 
 
 “A party may move for summary judgment, identifying each claim or defense — or the 
part of each claim or defense — on which summary judgment is sought.”  Fed. R. Civ. P. 56(a).  
“The principles governing summary judgment do not change when the parties fil e cross-motions 
for summary judgment[,]” as is the case here.  T –Mobile S. LLC v. City of Jacksonville , 564 F. 
Supp. 2d 1337, 1340 (M.D. Fla. 2008) (alteration added).  
Summary judgment may be rendered if the pleadings, discovery and disclosure materials 
on file, and any affidavits show there is no genuine dispute of any material fact and the movant is 
entitled to judgment as a matter of law.  See Fed. R. Civ. P. 56(a), (c).  An issue of fact is “material” 
if it might affect the outcome of the case under the governing law.  See Anderson v. Liberty Lobby, 
Inc., 477 U.S. 242, 248 (1986).  A dispute of fact is “genuine” if the evidence could lead a 
reasonable jury to find for the non-moving party.  See id.; see also Matsushita Elec. Indus. Co. v. 
Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted).  The Court draws all reasonable 
inferences in favor of the party opposing summary judgment.  See Chapman v. AI Transp., 229 
F.3d 1012, 1023 (11th Cir. 2000) (citations omitted).   
If the moving party bears the burden of proof on the relevant issue at trial, it can meet its 
summary judgment burden only “by presenting affirmative evidence showing the absence of a 
genuine issue of material fact — that is, facts that would entitle it to a directed verdict if not 
controverted at trial.”  Emery v. Talladega Coll., 169 F. Supp. 3d 1271, 1280–81 (N.D. Ala. 2016) 
(emphasis in original; citing Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th  Cir. 1993)), 
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aff’d, 688 F. App’x 727 (11th Cir. 2017).  With that showing made, the moving party “is entitled 
to summary judgment unless the non- moving party, in response, comes forward with significant, 
probative evidence demonstrating the existence of a triable issue of fact.”  Fitzpatrick, 2 F.3d at 
1115 (alteration adopted; quoting United States v. Four Parcels of Real Prop., 941 F.2d 1428, 
1438 (11th Cir. 1991) (en banc)). 
In contrast, i f the non -moving party bears the burden of proof at trial, the moving party 
may obtain summary judgment by: (1) establishing the nonexistence of a genuine issue of material 
fact as to any essential element of a non -moving party’s claim and (2) showing the court there is 
insufficient evidence to  support the non- moving party’s case.  See Blackhawk Yachting, LLC v. 
Tognum Am., Inc., No. 12-14209-Civ, 2015 WL 11176299, at *2 (S.D. Fla. June 30, 2015).  “Once 
the moving party discharges its initial burden, a non-moving party who bears the burden of proof 
must cite to . . . materials in the record or show that the materials cited do not establish the absence 
or presence of a genuine dispute.”  Id. (alteration added; quotation marks omitted; quoting Fed. R. 
Civ. P. 56(c)(1)).   When considering cross -motions for summary judgment, the court views the 
facts in the light most favorable to the non-moving party on each motion.  See Chavez v. Mercantil 
Commercebank, N.A., 701 F.3d 896, 899 (11th Cir. 2012) (citations omitted). 
III.  DISCUSSION 
 Defendant moves for summary judgment on both of Plaintiff’s claims , arguing that 
Plaintiff’s employment was that of a learned professional and, therefore, Plaintiff is not entitled to 
overtime pay under the FLSA ( see generally Def.’s Mot.); Defendant also belatedly argues that 
Plaintiff’s state-law claim under section 448.08 is “derivative” of her FLSA claim and cannot stand 
on its own (see Def.’s Reply 10).  Plaintiff asserts there is no genuine dispute of fact that she was 
not a learned professional, Defendant violated the FLSA when it failed to pay her overtime wages, 
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and Defendant’s good faith defense to liquidated damages fails .  (See generally Pl.’s Mot.; Pl.’s 
Resp.).  Plaintiff also argues she is entitled to recover unpaid wages , as a matter of stat e law, for 
working through her daily breaks.  (See generally id.).   
A.  FLSA Claim 
The FLSA requires employers to compensate employees at a rate of one and one-half times 
the employee’s regular rate of pay for each hour over 40 hours worked per week.  See 29 U.S.C. 
§ 207(a)(1).  This requirement does not apply to an employee who is employed “in a bona fide . . . 
professional capacity[,]” 29 U.S.C. § 213(a)(1) (alterations added), otherwise known as a learned 
professional, see 29 C .F.R. § 541.301 (2024).  E xemptions to the FLSA, such as the learned 
professional exemption, are construed narrowly, and Defendant bears the burden of establishing it 
is entitled to the exemption.  See Alvarez Perez v. Sanford -Orlando Kennel Club, Inc., 515 F.3d 
1150, 1156 (11th Cir. 2008).   
Both parties seek summary judgment based on the learned professional exemption to the 
FLSA.  (See Def.’s Mot. 7–20; Pl.’s Mot. 2–11).  According to Defendant, it is entitled to a ruling 
that the learned professional exemption applies to Plaintiff as a matter of law based on undisputed 
material facts.  (See, e.g., Def.’s Mot. 2).  Plaintiff, in contrast, contends summary judgment should 
be granted in her favor because she has shown the exemption categorica lly does not apply to her 
on material, undisputed facts.  (See, e.g., Pl.’s Mot. 1).   
 “How an employee spends her time working is a question of fact[.]”  Langley v. Gymboree 
Operations, Inc., 530 F. Supp. 2d 1297, 1301 (S.D. Fla. 2008) (alteration added; citing Icicle 
Seafoods, Inc. v. Worthington, 475 U.S. 709, 714 (1986)); see also Talbott v. Lakeview Ctr., Inc., 
No. 06-cv-378, 2010 WL 11557948, at *7 (N.D. Fla. Feb. 2, 2010)  (noting that “[a]lthough the 
inquiry into whether the professional exemption applies is extremely fact bound and case specific, 
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. . . the court focuses on the duties and requirements of the occupation, not the personal 
qualifications of the employee . . . .” (alterations added; citations omitted) .  “ Whether an 
employee’s particular activities exclude them from the overtime benefits of the FLSA is a question 
of law[.]”  Hendricks v. J.P. Morgan Chase Bank, N.A., 677 F. Supp. 2d 544, 551 (D. Conn. 2009) 
(quotation marks omitted; alteration adopted; additional alteration added; quoting Icicle Seafoods, 
475 U.S. at 714).  “At the same time, disputes regarding the nature of an employee ’s duties are 
questions of fact.”  Id. (quotation marks omitted; alteration adopted; quoting Jarrett v. ERC Props., 
Inc., 211 F.3d 1078, 1081 (8th Cir. 2000); other citation omitted).   
  1.  Professional Exemption 
To fall under the professional exemption, an employee must be salaried 5 and paid a 
minimum amount per week, s ee 29 C.F.R. § 541.600(a) , as well as primarily perform “work 
requiring advanced knowledge in a field of science or learning customarily acquired by a 
prolonged course of specialized intellectual instruction[,]” 29 C.F.R. § 541.301(1) (2024) 
(alteration added).  The Code of Federal Regulations provides a list of occupations which generally 
meet the requirements of the learned professional exemption.  See 29 C.F.R. §§ 541.301 (d), (e) 
(2024) (noting nurses, dental hygienists, physician assistants, accountants , paralegals, and chefs, 
among others, can generally be considered learned professionals if the position requires specialized 
academic training).  While therapists, mental health counselors, and clinicians are not specifically 
listed, there is a “catch all” section, which states, “[t]he areas in which the professional exemption 
 
5 An employee is “paid on a ‘salary basis’ .  . . if the employee regularly receives each pay period on a 
weekly, or less frequent basis, a prede termined amount constituting all or part of the employee’s 
compensation, which amount is not subject to reduction because of variations in the quality or quantity of 
the work performed.”  29 C.F.R. § 541.602(a) (alteration added). 
 
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may be available are expanding[]” as more occupations acquire the “characteristics of a learned 
profession.”  Id. §§ 541.301 (e), (f) (2024) (alterations added).   
To determine whether Plaintiff falls within the exemption, then, the Court first considers 
whether Plaintiff was  “compensated on a salary basis ” at a rate of at least $684 per week .  Id.  
§ 541.600(a).6  The Court next evaluates if Plaintiff’s primary duty —  the determination of which 
“must be based on all the facts in a particular case, with the major emphasis on the character of the 
employee’s job as a whole ” id. § 541.700(a) (2024)  — involved work requiring advanced 
knowledge in a field of science or learning that is “customarily acquired by a prolonged course of 
specialized intellectual instruction[,]” id. § 541.301(a) (2024) (alteration added).   
a.  Salary 
It is undisputed Plaintiff was paid on a salary basis, and that she was paid a salary of at 
least $979.17 per week throughout her employment.  ( See Def.’s SOF ¶¶ 24–25; Pl.’s Resp. SOF 
¶¶ 24–25).  Alt hough Plaintiff concedes she was salaried and paid above  the minimum weekly 
amount required by the regulations, she argues her “modest salary” shows she is the kind of 
employee meant to be protected by the FLSA.  (Pl.’s Resp. 8–9 (emphasis and footnote call number 
omitted)).  Plaintiff relies on Christopher v. SmithKline Beecham Corp., 567 U.S. 142 (2012), 
where the Supreme Court, in addressing another FLSA exemption, noted “ [t]he exemption is 
 
6 Plaintiff brings this action to recover alleged overtime and unpaid wages for her work spanning from June 
25, 2021 through January 8, 2024.  (See Compl. ¶ 11).  In June 2021, 29 C.F.R. section 541.600(1) required 
employees to be paid at least a $684 per week salary to qualify as a professional employee.  See id. (2021).  
This $684 per week requirement remained through the end of Plaintiff’s employment with Defendant.  See 
id. (2024).  Effective July 1, 2024, the Department of Labor increased the rate to $844 per week.  See 
Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales, and 
Computer Employees, 89 Fed. Reg. 32842 (Apr. 26, 2024) (to be codified at 29 C.F.R. Part 541).  This rate 
will increase again beginning January 1, 2025.  See id. 
 
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premised on the belief that exempt employees ‘typically earned salaries well above the minimum 
wage[.]’”  Id. at 166 (alterations added; citation omitted); (see also Pl.’s Resp. 8 n.5 (citing same)).   
Plaintiff earned well above both the federal and Florida minimum wages.  (Compare Def.’s 
SOF ¶ 24; Pl.’s Resp. SOF ¶ 24 (stating Plaintiff’s starting salary was $979.17 per week) with 29 
U.S.C. § 206 (federal minimum wage of $7.25 an hour, or approximately $290 per week assuming 
a 40 -hour work week) , Fla. Const. a rt. X , § 24(c)  (Florida minimum wage spanning between 
$10.00 an hour by late 2021, or approximately $400 per week;  and $12.00 an hour by January 
2024, or approximately $480 per week, assuming same)).  Further, the Court does not agree with 
Plaintiff’s proposition that because the petitioners in Christopher — who made an average of over 
$70,000 annually — were found to be exempt from the FLSA’s overtime requirements, that an 
employee such as Plaintiff making under $70,000 is automatically within the realm of employees 
the FLSA was intended to protect.  See 567 U.S. at 166; (see also Pl.’s Resp. 8–9).   
Still, the Court finds that a jury could consider Plaintiff’s salary in analyzing Plaintiff’s 
employment, as “employment for FLSA purposes is a flexible concept to be determined on a case-
by-case basis by review of the totality of the circumstances.”  Hend ricks, 677 F. Supp. 2d at 551 
(alteration adopted; quoting Barfield v. N.Y. City Health and Hosps. Corp., 537 F.3d 132, 141–42 
(2d Cir. 2008); see Schumann v. Collier Anesthesia, P.A., 803 F.3d 1199, 1211–12 (11th Cir. 2015) 
(citing the Second Circuit’s “flexible” approach with approval). 
   b.  Primary Duty 
An employee’s primary duty is “the principal, main, major or most important duty that the 
employee performs.”  29 C.F.R. § 541.700(a) (2024).  “Factors to consider when determining the 
primary duty of an employee include, . . . the relative importance of the exempt duties as compared 
with other types of duties; the amount of time spent performing exempt work; [and] the employee’s 
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relative freedom from direct supervision . . . .”  Id. (alterations and emphasis added).  “To qualify 
for the learned professional exemption, an employee ’s primary duty must be the performance of 
work requiring advanced knowledge in a field of science or learning customarily acquired by a 
prolonged course of specialized intellectual instruction.”  Id. § 541.301(a) (2024).  There are three 
elements to the primary duty test : “(1) [t]he employee must perform work requiring advanced 
knowledge; (2) [t]he advanced knowledge must be in a field of science or learning;  and (3) [t]he 
advanced knowledge must be customarily acquired by a prolonged course of specialized 
intellectual instruction.”  Id. (alterations added).  
The parties agree Plaintiff’s primary duty was providing mental health services to her 
clients — children and adolescents w ho had experienced trauma (See Def.’s Mot. 8 (stating 
“Plaintiff’s work as a clinician for [Defendant] ” was to  “provid[e] mental health treatment to 
children and adolescent clients who ha[d] experienced trauma . . . .” (alterations added; emphasis 
omitted)); see also Pl.’s Resp. 16 (describing Plaintiff’s work as the “treatment of traumatized 
youth”)).  Plaintiff’s work was centered around her clients, and her  primary duty was providing 
therapy to children and adolescents w ho had experienced  trauma.  See 29 C.F.R. § 541.700(a)  
(2024) (alterations added). 
Advanced Knowledge.  Under the first element, Defendant bears the burden of proving that 
Plaintiff’s primary duty was “work requiring advanced knowledge,” which means “work which is 
predominantly intellectual in character, and which includes work requiring the consistent exercise 
of discretion and judgment, as distinguished from performance of routine mental, manual, 
mechanical[,] or physical work.”   Id.  § 541.301(b) (2024) (alteration added).  “The regulations 
make clear that the advanced knowledge must not merely be held by the employee [,] but it also 
must be required for the employee to perform the job.”  Talbott v. Lakeview Ctr., Inc., No. 06-cv-
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378, 2008 WL 4525012, at *7 (N.D. Fla. Sept. 30, 2008)  (alteration added; emphasis in original; 
citing 29 C.F.R. § 541.301(a)(1)). 
Defendant argues Plaintiff’s position as a clinician regularly required her to utilize 
advanced knowledge, independent judgment, and discretion.  ( See Def.’s Mot. 8–16).  Plaintiff 
insists that her work was “routine” and did not involve the consistent exercise of discretion.  (Pl.’s 
Resp. 9 (citations omitted)).   
The parties strenuously disagree as to the degree and nature of supervision that Plaintiff 
was subjected to.  Plaintiff presents evidence — which Defendant disputes — of a multi- tiered 
supervisory structure and argues these supervisors had the ability to overturn nearly all of her  
decisions.  ( See, e.g. , Pl.’s Mot. 2 (describing the “ the multi-tiered and constant supervision 
imposed by [Defendant] over virtually every meaningful aspect of [Plaintiff’s] work as a clinician” 
(alterations added)).  Plaintiff contends she was constrained to use the TF-CBT modality and pre-
printed forms; was as signed clients and set hours, as well as subject ed to a client quota; further, 
her supervisors instructed her on treating her clients and made decisions regarding whether 
Plaintiff could continue to see her clients .  ( See Pl.’s SOF ¶¶ 6; 12, 15–18, 21–23, 26; but see 
Def.’s Resp. SOF ¶¶ 6, 12, 15–18, 21–23, 26 (disputing same)).   
Defendant notes Plaintiff ’s work “involved screening, assessing, and diagnosing clients, 
and formulating and carrying out treatment plans for each client.”  ( Def.’s Mot. 9 (citations and 
emphasis omitted)).  Defendant points out that Plaintiff used her discretion and judgment to assess 
and diagnose her clients, ma ke treatment plans, and conduct sessions with clients.  ( See Def.’s 
SOF ¶¶ 44, 52, 56, 59; but see Pl.’s Resp. SOF ¶¶ 44, 52, 56, 59 (disputed as phrased by Plaintiff); 
see also Def.’s Mot. 11 (describing Plaintiff’s purportedly independent duties) ).  Indeed, 
Defendant emphasizes that Lalama never told Plaintiff “how she needed to treat a client, nor could 
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she, as []Lalama did not have the personal information about each client of [Plaintiff’s] (or any 
other therapist).”  (Def.’s Mot. 12 (alterations added; citing Def.’s SOF ¶ 68)).  Further, Defendant 
highlights that “Plaintiff was not supervised on a daily basis[,] and her supervisor was not involved 
in her day-to-day meetings with[,] and treatment of[,] clients.”  (Id. 13 (alterations added; citing 
Def.’s SOF ¶¶ 67–68; emphasis omitted)).   
Defendant relies on Levine v. Unity Health System, 847 F. Supp. 2d 507 (W.D.N.Y. 2012), 
for its position that Plaintiff’s primary duty as a clinician required advanced knowledge.  ( See 
Def.’s Mot. 9).  In Levine, three plaintiffs sought  overtime pay for their work as “[p]rimary 
[t]herapists . . . in the area of mental health counseling and therapy.”  847 F. Supp. 2d at 508 
(alterations added).  As here, the primary duties of the therapists in Levine included assessing 
patients’ conditions, making treatment plans and diagnoses, and leading therapy sessions.  See id. 
at 510–11.  The Levine court determined the therapist-plaintiffs were learned professionals, finding 
they consistently exercised discretion despite only making initial assessments, which could be 
overturned by supervisors.  See id. at 510–12.  
Defendant argues that some degree of supervision did not rob Plaintiff of her responsibility 
to consistently use her advanced knowledge and exercise her own discretion.  ( See Def.’s Mot. 9 
(collecting cases)).  This proposition may well be true.  Yet, there is a key difference: in Levine, it 
was undisputed that the plaintiffs performed their tasks with “little oversight[.]”  847 F. Supp. 2d 
at 511 (alteration added).  Plaintiff’s assertion that she was subjected  to extensive supervision 
distinguishes this case from the undisputed facts in Levine and case law premised on limited  
supervision.  (See Def.’s Mot. 11 (citing Owsley v. San Antonio Indep. Sch. Dist., 187 F.3d 521, 
526 (5th Cir. 1999) (noting that the employees only “sometimes” acted “under the supervision of 
a physician”)); see also Pl.’s Dep. Tr. 129:2–17 (Plaintiff noting her treatment plans would only 
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be marked “pending” until they were approved by a supervisor); Pl.’s SOF ¶¶ 11, 12 (stating it 
was Plaintiff’s supervisors who determined if a client was eligible for, or finished with, the PACTT 
program); but see Def.’s Resp. SOF ¶¶ 11, 12 (disputing same)).  
These material, contradictory facts call into question the  level of supervis ory oversight 
Plaintiff was subject to, and the effect this supervision  had on Plaintiff’s independent judgment.  
See Cameron v. Abercrombie & Fitch Co., No. 10- cv-631, 2012 WL 4057240, at *9 (S.D. Ohio 
Sept. 14, 2012) (noting both parties disputed the degree to which the plaintiff was able to exercise 
her independent decision making, and thus summary judgment on professional exemption was 
improper); see also  Price v. Gulf Coast Jewish Fam. Servs., Inc., No. 05- cv-2210, 2006 WL  
3391246, at *3 (M.D. Fla. Nov. 22, 2006) (declining to grant summary judgment in favor of the 
defendant on the learned professional exemption where the  “[p]laintiff’s deposition contain[ed] 
many conflicting, statements regarding the degree of discretion or judgment he exercised in his 
position” (alterations added; emphasis original; citation omitted)).   
Thus, “even assuming that some ‘advanced knowledge’ was required of” Plaintiff during 
her employment with Defendant, given the disputed level of supervision and oversight exercised 
by Plaintiff’s supervisors, and the disputes over the level of discretion retained by Plaintiff, “it is 
unclear whether [Plaintiff] primarily performed work requiring advanced knowledge.”  Hendricks, 
677 F. Supp. at 553 (alteration added; emphases original).   
Field of Science o r Learning.  “ The phrase ‘field of science or learning ’ includes the 
traditional professions of law, medicine, theology, accounting, . . . and other similar occupations 
that have a recognized professional status [.]”  29 C.F.R. § 541.301(c) (2024) (alterations added).  
These professions are  “distinguished from the mechanical arts or skilled trades where in some 
instances the knowledge is of a fairly advanced type, but is not in a field of science or learning.”  
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Id.  The parties seem to agree that mental health counseling — in the abstract — could qualify as 
a field of science or learning.  (See Def.’s Mot. 16; Pl.’s Resp. 9 (challenging the proposition that 
Plaintiff’s primary duty was in a field of science or learning)) .  But that is not the question 
presented here.  Instead, “the parties’ disagreement is ultimately as to the nature of plaintiff [’s] 
role[] within the larger field of ” mental health counseling.  Hendricks , 677 F. Supp. at 555 
(alterations added; emphasis original).   
If Plaintiff’s role  required advanced knowledge of mental health counseling, it would 
follow that her employment was in a field of science or learning.  Again, however, the parties do 
not agree as to what exactly Plaintiff’s role was with Defendant, and whether that role was 
essentially mechanical, and taught to her after she began working for Defendant; or discretionary, 
and based on her past education in mental health.  
Defendant posits Plaintiff’s role required advanced knowledge in a field of  science or 
learning, as “Plaintiff’s job as a mental health clinician required, and Plaintiff did complete, a 
Master’s degree in mental health and professional status recognized by the State of Florida, first 
as an RMHCI and later as an LMHC.”  (Def.’s Mot. 16 (citation omitted)).  Plaintiff, in contrast, 
argues her role did not require knowledge in a field of science or learning because she was merely 
taught steps to follow, and supervisors controlled her job duties.  (See, e.g., Pl.’s Resp. 9–11).  
Since disputes of material fact exist over whether Plaintiff’s role required advanced knowledge in 
the field of mental health counseling, the Court  cannot say whether the second element of the 
primary duty test is met.   
Prolonged Course of Specialized Intellectual Instruction .  “ The phrase ‘ customarily 
acquired by a prolonged course of specialized intellectual instruction’  restricts the exemption to 
professions where specialized academic training is a standard prerequisite for entrance into the 
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profession.”  29 C.F.R. § 541.301(d) (2024).  Defendant argues Plaintiff fulfills this element, as 
Plaintiff has a master’s degree in Counselor Education, and Defendant required its PACTT 
clinicians to have  a mental-health-related master’s degree.  ( See Def.’s Mot. 17).  Plain tiff, 
meanwhile, contends her master’s degree was not sufficiently specialized  to her work for 
Defendant, because in her master’s program she was not required to have any training in treating  
minors who had suffered trauma or in the TF-CBT modality.  (See Pl.’s Mot. 10).  Plaintiff asserts 
her post -employment training in TF -CBT further buttresses this fact, because the work she 
performed was informed by her three-day on-the-job training, not her master’s degree education.  
(See Pl.’s Resp. 13–14).  
Plaintiff states she followed “a detailed step by step” guide to perform the TF-CBT 
modality, which she was taught over a period of three days on the job; she further asserts  it was 
this training, no t a master’s degree, that was the specialized instruction that prepared PAC TT 
clinicians to give therapy to minors who had suffered trauma.  (Pl.’s Dep. Tr. 70:8–12) .  As 
Defendant points out, however, Plaintiff  also says PACTT clinicians used  knowledge acquired 
during their education for their master’s degree — which was a job requirement.  (See id. (“[W]e 
learned it in our master’s degree, but really [Lalama] was the one that provided us a detailed step 
by step of each of the steps within the [TF-CBT] modality that we were supposed to do with each 
of the clients.” (alterations added); Def.’s SOF ¶¶ 33, 56; Pl.’s Resp. SOF ¶¶ 33, 56 (disputed as 
phrased by Plaintiff); see also Pl.’s Dep. Tr. 120:8–23, 125:21–24).  These conflicting pictures of 
what specialized knowledge was required to enter the profession as a clinician performing the tasks 
required during employment for Defendant prevents a summary judgment in favor of either party.  
In all, t he facts proffered by both parties indicate “a genuine issue of material fact as to 
whether Plaintiff exercised discretion and independent judgment in her primary duties ” and thus 
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summary judgment for or against Plaintiff or Defendant on the learned professional exemption is 
precluded.  Cameron, 2012 WL 4057240, at *7. 
 2. FLSA Overtime Liability 
The Court next turns to Plaintiff’s remaining arguments regarding her FLSA claim.  
Plaintiff argues liability against Defend ant has been established on her claim of unpaid overtime  
and  that Defendant is not entitled to its good faith defense against liquidated damages as a matter 
of law.  (See Pl.’s Mot. 11–14).  Defendant insists that even if Plaintiff can show liability as to her 
FLSA claim, her claim still fails because there is no evidence of  damages.  (Def.’s Resp. 16–18).  
The Court addresses each argument in turn. 
a. Liability 
Plaintiff argues she is entitled to a finding that Defendant is liable under the FLSA to pay 
her overtime wages.  (See Pl.’s Mot. 1, 14, 16).  In order to establish FLSA liability, Plaintiff must 
“demonstrate (1) [she] worked overtime without compensation and (2) Defendant[] knew or 
should have known of the overtime work.”  Romero v. Latin Grp., Inc., No. 18- 25319-Civ, 2019 
WL 7376769, at *1 (S.D. Fla. Oct. 18, 2019) (alterations added; citing Allen v. Bd. of Pub. Educ. 
for Bibb Cnty., 495 F.3d 1306, 1314–15 (11th Cir. 2007)).   
As the Court has discussed, material issues of fact exist as to whether Plaintiff is exempt 
from the FLSA’s overtime provisions.  As a result, the Court cannot find Defendant liable (or, for 
that matter, not liable)  for Plaintiff’s overtime wages as a matter of law.  C.f. Sigida v. Munroe 
Foods 2 LLC , No. 14- cv-3968, 2016 WL 7239952, at *8 (N.D. Ga. Dec. 15, 2016)  (“As there 
exists a genuine issue of material fact as to whether [p]laintiff fell within the administrative or 
executive exemptions, the [c]ourt has not determined that [d]efendants are liable for overtime pay.” 
(alterations added)). 
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b. Good Faith Defense 
Plaintiff moves for summary judgment on Defendant’s good faith affirmative defense 
against liquidated damages on Plaintiff’s FLSA claim.  ( See Pl.’s Mot. 11–12; Pl.’s Reply 8).  
Plaintiff argues there is no dispute of fact as to whether Defendant acted in good faith in its belief 
that Plaintiff was an exempt employee.  (See id.).  
The “good faith” defense to liquidated damages allows a court to refrain from entering 
liquidated damages against a defendant if the defendant can show that “the act or omission giving 
rise to such action was in good faith and that [it] had reasonable grounds for believing that [its] act 
or omission . . . was not a violation of the [FLSA .]”  29 U.S.C. § 260 (alterations added).  The 
defense only comes into play on a finding of liability.  See Cusumano v. Maquipan Int’l, Inc., 390 
F. Supp. 2d 1216, 1223 (M.D. Fla. 2005)  (stating “that only a violation of the FLSA results in a 
right to liquidated damages under the Act” (alteration adopted; quotation marks omitted; quoting 
Atlanta Pro. Firefighters Union, Loc. 134 v. City of Atlanta, 920 F.2d 800, 806 (11th Cir. 1991))).   
As issues of fact preclude summary judgment in Plaintiff ’s favor on her overtime claim, 
summary judgment precluding the good faith defense is not appropriate.  See id. (noting that “[i]n 
the absence of a determination of an FLSA violation, consideration of the issue of liquidated 
damages, and thus the associated affirmative defense of good faith, is premature ” (alteration 
added)).   
c. Damages 
Defendant responds to Plaintiff’s request for summary judgment on her claim for overtime 
wages by contending that — even assuming Plaintiff is entitled to summary judgment — the claim 
still must fail because she has not shown damages.  (See Def.’s Resp. 16, 20).  Defendant argues 
Plaintiff cannot “recall the specific number of hours she worked for [Defendant] in any particular 
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week, or the specific amount of time she claims to have worked on her monthly documentation[.]” 
(Id. 16 (alterations added; emphases in original; citation omitted)).  Defendant argues that not only 
is Plaintiff not entitled to summary judgment, but Defendant should instead be granted summary 
judgment.  (See id. 16–18).   
True, as Defendant notes, a n employee “has the burden of proving that [s ]he performed 
work for which [s]he was not properly compensated.”  Anderson v. Mt. Clemens Pottery Co., 328 
U.S. 680, 687 (1946)  (alterations added), superseded by statute on other grounds as stated in 
Sandifer v. U.S. Steel Corp., 571 U.S. 220, 226 (2014).  “When the employer has kept proper and 
accurate records[,] the employee may easily discharge h[er] burden by securing the production of 
those records.”  Id. (alterations added). Yet, “where the employer ’s records are inaccurate or 
inadequate and the employee cannot offer convincing substitutes [,]” a relaxed burden- shifting 
scheme applies.  Id. (alteration added); see also Morgan v. Family Dollar Stores, Inc., 551 F.3d 
1233, 1278–79 (11th Cir. 2008).   
Defendant does not assert its records reflecting Plaintiff’s work hours even exist.  ( See 
generally Def.’s Mot.; Def.’s Resp.; Def.’s Reply); see also Allen, 495 F.3d at 1315 (noting “[i]t 
is the employer’s duty to keep records of the employee ’s wages, hours, and other conditions and 
practices of employment”  (alteration added; citation omitted )).  Defendant’s corporate 
representative testified that Defendant’s clinicians were not required to keep track of their working 
hours.  (See Herradon Dep. Tr. 151:11–12, 162:1–4 (stating “[Plaintiff] was not required to track 
her hours” and “[t]here is no need to document additional hours outside of 40, because the wages 
would have covered the time worked” (alterations added))).  Because Defendant’s records fail to 
establish what hours Plaintiff worked and for which weeks, they are not “proper and accurate.”   
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Allen, 495 F.3d at 1315 (citation omitted) .  Plaintiff may therefore prove her damages under the 
relaxed burden-shifting scheme. 
Under the relaxed burden- shifting scheme, an employee carries  her burden to prove 
damages if she: (a) “proves that [she] has in fact performed work for which [she] was improperly 
compensated”; and (b) “produces sufficient evidence to show the amount and extent of that work 
as a matter of just and reasonable inference.”  Anderson, 328 U.S. at 687 (alterations added).  If 
the employee satisfies her burden, the burden shifts to the employer to produce “evidence of the 
precise amount of work performed” or to negate “the reasonableness of the inference to be drawn 
from the employee’s evidence.  If the employer fails to produce such evidence, the court may then 
award damages to the employee, even though the result be only approximate.”  Id. at 688–89; see 
also Allen, 495 F.3d at 1316. 
Plaintiff has demonstrated she worked hours for which she was not properly compensated.  
Plaintiff testified she worked eight hours overtime every month to complete time -sensitive client 
charts and subsequently email the charts to Lalama.  (See Pl.’s Dep. Tr. 68:15–71:14; see also Pl.’s 
SOF ¶ 29; but see Def.’s Resp. SOF ¶ 29 (disputed by Defendant)).  Plaintiff also proffers email 
evidence showing she sent these client charts to Lalama after Plaintiff’s  typical working hours.  
(See Pl.’s SOF Exs., Ex. 10, Pl.’s Off the Clock Emails [ECF No. 35–10] 1–3).   
Plaintiff must provide “sufficient evidence to show the amount and extent of that work as 
a matter of just and reasonable inference.”  Anderson, 328 U.S. at 687.  Plaintiff contends she 
worked 8 extra hours every month — in addition to her 40-hour workweek — during the time she 
worked for Defendant. (See Pl.’s Dep. Tr. 48:22–49:11; see also Pl.’s SOF ¶  29; but see Def.’s 
Resp. SOF ¶  29 (disputing same) ).  Whether eight hours of overtime a month is a reasonable 
inference to draw from the evidence is not a determination for the Court  to make at summary 
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judgment; rather “it is the duty of the trier of facts to draw whatever reasonable inferences can be 
drawn from the employee [’s] evidence[.]”  Anderson, 328 U.S. at 693 (alterations added).  The 
determination of exactly how many hours Plaintiff was improperly compensated is therefore a 
question of fact. 
B.  State-Law Claim for Unpaid Wages 
Plaintiff contends she had an employment agreement with Defendant that entitled her to an 
hourly lunch break every day, which she was unable to take due to a heavy workload. 7  (See Pl.’s 
Mot. 14–16).  Thus, Plaintiff argues she worked an extra hour each day without compensation and 
seeks relief under Florida Statute section 448.08.  ( See id.).  Defendant asserts there is a genuine 
dispute of “fact as to whether Plaintiff was able to take a one- hour lunch break each day, and 
therefore summary judgment is inappropriate on this issue.  (Def.’s Resp. 20).  The Court agrees 
with Defendant.   
 The parties clearly do not agree whether Plaintiff was able, or entitled, to take a one-hour 
break.  (See Pl.’s SOF ¶¶ 27–28; but see Def.’s Resp. SOF ¶¶ 27–28 (disputed by Defendant, who 
argues Plaintiff could have taken a break  but chose not to)).  While Plaintiff insists  she was 
regularly unable to take a break, Defendant’s other employees dispute this.  (See Herradon Dep. 
Tr. 232:5–233:11 (asserting that clinicians had the discretion to set their own schedule and could 
schedule themselves a one- hour break); see also  Pl.’s SOF Exs., Ex. 4, Dep. Tr. of Christina 
Lalama 118:11–15 (stating “I believe, if I recall, her words were, I worked through my break, not 
I’m unable to take my break”)).  Thus, summary judgment is inappropriate.   
 
7 Defendant argues Plaintiff does not plead a breach-of-contract claim for unpaid wages.  (See Def.’s Resp. 
19).  The Court agrees.  The Complaint states Count II is brought under  Florida Statutes section 448.08, 
which courts have construed as a claim for unpaid wages under Florida common law; the Court assess es 
the claim under this framework only.  ( See Compl. ¶¶ 23, 26); see also  Perez v. Mediglez Wellness Ctr., 
Inc., No. 12-cv-2751, 2013 WL 5566183, at *4 (M.D. Fla. Oct. 8, 2013) (collecting cases).  
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Finally, Defendant also requests summary judgment on Plaintiff’s state-law claim .  
Defendant does not address Plaintiff’s claim under Florida Statutes section 448.08 in its Motion.  
(See generally Def.’s Mot.).  In its Reply, Defendant first argues the claim cannot stand alone, as 
it is “derivative” of Plaintiff’s FLSA claim and should be dismissed if the Court finds Plaintiff was 
an exempt employee.  (See Def.’s Reply 10).  Defendant cites no authority for this assertion and 
raises it for the first time in its  Reply.  ( See generally Def.’s Mot.; Def.’s Reply); s ee also 
ripKurrent LLC v. Richard Ballard IRA LLC , 530 F. Supp. 3d 1281, 1297 (S.D. Fla. 2021)  
(arguments “raised for the first time in the reply brief are deemed waived ” (quoting In re Egidi , 
571 F.3d 1156, 1163 (11th Cir. 2009))).   
In any event, as the Court has declined to enter summary judgment finding Plaintiff was 
an exempt employee , the Court declines to grant Defendant’s Motion as to Plaintiff’s state -law 
claim.   
IV.  CONCLUSION 
For the foregoing reasons, it is ORDERED AND ADJ UDGED that Defendant, Jewish 
Community Services of South Florida Inc.’s Motion for Summary Judgment [ECF No. 38]  and 
Plaintiff, Lisset Infante’s Motion for Partial Summary Judgment [ECF No. 42] are DENIED.   
DONE AND ORDERED in Miami, Florida, this 12th day of December, 2024. 
 
  
      ________________________________________ 
      CECILIA M. ALTONAGA 
      CHIEF UNITED STATES DISTRICT JUDGE 
 
cc: counsel of record 
 
 
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