Wesley v. Accessible Home Care, et al

Filing 7

MEMORANDUM OPINION & ORDER: It is ORDERED as follows: 1. The Magistrate Judge's Order denying certification 5 is ADOPTED, in part, and REJCECTED, in part; 2. Plaintiff's 6 MOTION under Rule 72(b)(2) of FRCP is GRANTED, in part, and DEN IED, in part; 3. Pltf's claims against Dfts Michelle Walters, Sheila Hughes Rouse, Mark Williams, and Commonwealth of Kentucky Unemployment Office are DISMISSED with prejudice. Pltf's claims against Accessible Home Care, Bill Hughes, and K ay Hughes are DISMISSED with prejudice, with the exception of the Fair Labor Standards Act claim against these three defendants; 4. Pltf has 21 days to file a Complaint relating only to FLSA claims against Dfts Accessible Home Care, Bill Hughes, and Kay Hughes. Upon filing, Pltf is directed to tender $400 filing fee to Clerk of Court or file a properly supported motion to proceed in forma pauperis; 5. Pltf is required to keep Clerk of Court informed of her current mailing address. Failure to notify Clerk of any change of address may result in dismissal of this case. Signed by Judge Danny C. Reeves on 4/26/2018.(KM)cc: Pltf via U.S. Mail

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
(at Lexington)
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MISTY LYNN WESLEY,
Plaintiff,
V.
ACCESSIBLE HOME CARE, et al.,
Defendants.
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Civil Action No. 5: 18-200-DCR

MEMORANDUM OPINION
AND ORDER

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Pro se plaintiff Misty Lynn Wesley moves for certification to file a new civil lawsuit
based on claims arising from her past employment with Defendant Accessible Home Care.
[Record No. 2] Wesley has a long history of filing what this Court has characterized as
“abusive litigation”. As a result, General Order No. 07-6 was entered on February 14, 2007.
[Record No. 1] It provides that, before Wesley may file a new action in this Court, she must
obtain certification from a United States Magistrate Judge in this district stating that the claims
asserted are not frivolous and that the filing is not submitted for any improper purpose.
I.
Wesley asserts in the present action a host of federal statutory and state law claims
against Accessible Home Care, its owners, and its employees, which are, for the most part,
difficult to follow. [Record Nos. 2, 6] United States Magistrate Judge Robert E. Wier issued
an Order on April 9, 2018, denying Wesley’s motion for certification. Wesley then filed a
motion pursuant to Rule 72(b) of the Federal Rules of Civil Procedure on April 18, 2018.
[Record No. 6] Wesley has failed to articulate specific objections to the Magistrate Judge’s
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Certification Order and, instead, has repeated many of the assertions contained in her initial
filing. The Court has reviewed Wesley’s allegations and will grant her motion, in part, and
deny it, in part. See 28 U.S.C. § 636(b)(1).
II.
Wesley worked for Defendant Accessible Home Care which was owned by Bill and
Kaye Hughes. [Record No. 6, p. 2] She alleges that the defendants engaged in “labor
trafficking” and violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201, et
seq. Wesley was paid $9.50 per hour to look after an elderly client in Lexington, Kentucky
when she began working for Accessible Home Care. [Record No. 6, p. 4] After a couple of
days, the client began asking Wesley to polish silver and to clean carpets, walls, and the
refrigerator. Id. Wesley asked Bill Hughes to tell the client that Wesley was not to perform
such tasks, but Hughes declined, telling her, “we’re cheaper than maids.” Id. Wesley asked
to be reassigned to a different client but tendered her resignation in the meantime. Id.
Wesley was transferred to another elderly client’s home where she was paid $11.50 per
hour. However, following a conflict with a co-worker, Wesley asked Hughes “to find another
person to work over there.” Id. at p. 5. Wesley was then assigned to a live-in position with an
elderly couple, where she worked 24-hour shifts, “3 days on and 3 days off.” Id. She was paid
$170.00 per day. Wesley contends that the couple’s daughter kept a list of chores for her,
which included vacuuming, sweeping, mopping, and cleaning the bathrooms. Id. According
to Wesley, Hughes “flat out refused” to tell the client that she was not supposed to perform
these duties.
The FLSA requires qualifying employers to pay each covered employee a statutory
minimum wage. 29 U.S.C. § 206(a). Further, covered employees who work more than 40
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hours in a given week must receive compensation at an overtime rate. Id. at § 207(a). While
the FLSA does not always apply to companionship employees or live-in domestic service
employees, 29 U.S.C. § 213(a)(15), (b)(21), it generally does apply when these types of
employees are employed by third parties rather than the individual or member of the family or
household using the services.1 29 C.F.R. § 552.109. Wesley has alleged that she was
employed by Defendant Accessible Home Care, not the individual clients to whom she
provided services.
Although FLSA plaintiffs generally are not required to plead overtime claims in great
detail, Wesley has failed to indicate that she worked in excess of forty hours in a given week
during her first two assignments. She alleges, however, that she worked for three consecutive
24-hour periods on multiple occasions during her “live-in” assignment. She also alleges that
she was not paid overtime wages. [Record No. 6, pp. 5-6] It is unclear whether these
allegations would be sufficient to withstand a motion to dismiss under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, but the FLSA claim is not “fantastic or delusional” or “based
on legal theories that are indisputably meritless.” See Brown v. Bargery, 207 F.3d 863, 866
(6th Cir. 2000) (citing Neitzke v. Williams, 490 U.S. 319, 325 (1989)).
As explained in the Magistrate Judge’s Certification Order, Wesley’s remaining claims
clearly are without merit. Wesley alleges that she experienced unlawful retaliation under Title
VII, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the
Genetic Information Nondiscrimination Act. However, to state a claim for retaliation, the

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Wesley indicates that she was hired in or around July 2016 [Record No. 6-1, p. 2], after the
effective date of 29 C.F.R. § 552.109. See Brittmon v. Upreach, LLC, 285 F.Supp.3d 1033
(S.D. Ohio 2018) (holding that § 552.109 became effective as of January 1, 2015).
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plaintiff must allege that she engaged in protected activity. See Little v. BP Exploration & Oil
Co., 265 F.3d 357, 363 (6th Cir. 2001). Wesley’s filings provide no indication that her
complaint regarding a pay discrepancy between two female employees constituted protected
activity under any of the statutes she has cited. See, e.g. Barber v. CSX Distrib. Servs., 68 F.3d
694, 701-02 (3d Cir. 1995) (plaintiff’s letter to HR complaining about unfair treatment in
general was not protected activity under ADEA because letter did not specifically complain
about age discrimination).
Wesley also alleges that she experienced racial discrimination and hostile working
conditions during her live-in assignment. In support, she contends that Accessible Home Care
hired an African-American female employee to assist with the assignment and paid her
$180.00 per day, or ten dollars more per day than Wesley was paid. For a majority plaintiff to
succeed in an employment discrimination case, she must establish a prima facie case of
“reverse discrimination.” This requires the plaintiff to prove that she was “intentionally
discriminated against despite [her] majority status.” Murray v. Thistledown Racing Club, Inc.,
770 F.2d 63, 67 (6th Cir. 1985). Although Wesley is not required to establish a prima facie
case at the pleading stage, she must allege some background circumstances to indicate that the
defendant “is the unusual employer who discriminates against the minority.” See id. She has
failed to do so here. The lone allegation that her African-American female co-worker was paid
more than her is insufficient to support a claim of discrimination or a hostile work
environment.
Finally, as the Magistrate Judge explained, Wesley’s defamation claim should be
dismissed. Bill Hughes’ alleged statement that Wesley quit her job without giving notice is
not defamatory per se and Wesley has not suggested that she suffered any actual damages as a
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result of the statement. Accordingly, this claim is patently frivolous. See Gilliam v. Pikeville
United Methodist Hosp. of Ky., Inc., 215 S.W.3d 56, 60-61 (Ky. Ct. App. 2006) (citing Hill v.
Evans, 258 S.W.2d 917, 918 (Ky. 1953)).
III.
Based on the foregoing analysis, it is hereby
ORDERED as follows:
1.

The Magistrate Judge’s Order denying certification [Record No. 5] is

ADOPTED, in part, and REJECTED, in part.
2.

Plaintiff’s motion under Rule 72(b)(2) of the Federal Rules of Civil Procedure

[Record No. 6] is GRANTED, in part, and DENIED, in part.
3.

Plaintiff’s claims against Defendants Michelle Walters, Sheila Hughes Rouse,

Mark Williams, and Commonwealth of Kentucky Unemployment Office are DISMISSED,
with prejudice. Plaintiff’s claims against Accessible Home Care, Bill Hughes, and Kay
Hughes are DISMISSED, with prejudice, with the exception of the Fair Labor Standards Act
(overtime/minimum wage) claims against these three defendants.
4.

Plaintiff has twenty-one (21) days in which to file a Complaint relating only to

her FLSA claims against Defendants Accessible Home Care, Bill Hughes, and Kay Hughes.
Upon filing the Complaint, Plaintiff is directed to tender the $400.00 filing fee to the Clerk of
the Court or file a properly-supported motion to proceed in forma pauperis. Failure to tender
the filing fee or file a properly-supported motion to proceed in forma pauperis may result in
dismissal of the Complaint. The Complaint will stand submitted for screening at that time.

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5.

Plaintiff is required to keep the Clerk of the Court informed of her current

mailing address. Failure to notify the Clerk of any change of address may result in dismissal
of this case.
This 26th day of April, 2018.

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