Wesley v. Accessible Home Care, et al

Filing 79

MEMORANDUM OPINION & ORDER: 1. Defendant's 74 SECOND MOTION to Dismiss is GRANTED. 2. Related case 5:18-CV-377-DCR is DISMISSED, with prejudice, and STRICKEN from the docket. 3. A corresponding Judgment will be entered this date. Signed by Judge Danny C. Reeves on 12/6/2018.(JJ)cc: COR, Pro Se Plaintiff via US Mail Modified text on 12/6/2018 (JJ).

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

MEMORANDUM OPINION
AND ORDER

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Pro se plaintiff Misty Wesley alleges that Defendant Accessible Home Care (“AHC”)
failed to pay her federal minimum wage and overtime compensation when she was employed
as a live-in caregiver in 2017.1 AHC has filed a second motion to dismiss Wesley’s Complaint
on mootness grounds based on AHC’s most recent Rule 68 offer of judgment. [Record No.
74] The motion will be granted because there is no question that AHC’s offer of judgment
gives Wesley full relief regarding her Fair Labor Standards Act (“FLSA”) claims.
I.
A plaintiff must maintain a live controversy throughout an action. A case becomes
moot when interim events deprive the court of the ability to redress the plaintiff’s injuries.
Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997); Int’l Union, United Auto,
Aero, Agr. & Implement Workers of Am. v. Dana Corp., 697 F.2d 718, 721 (6th Cir. 1983).

1

Wesley has a history of abusive litigation and is required to obtain Court certification before
filing a new lawsuit. See General Order 07-06. She asserted several other claims against AHC in
her application to file this suit, but she was only permitted to proceed with minimum wage and
overtime claims under the Fair Labor Standards Act. [Record Nos. 5, 7]

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As this Court has explained previously, a Rule 68 offer of judgment may moot a plaintiff’s
claim under certain circumstances. [Record No. 61, p. 4-4 (discussing Campbell-Ewald Co.
v. Gomez, 136 S. Ct. 663 (2016) & Mey v. North Am. Bancard, LLC, 655 F. App’x 332 (6th
Cir. 2016)).] Here, those circumstances have been satisfied because: 1) AHC’s offer of
judgment satisfies Wesley’s demand for relief regarding the claims she is permitted to bring
and 2) AHC has deposited the funds in the Court’s registry for payment to Wesley upon entry
of Judgment.
II.
Wesley’s surviving claims are based on her allegations that the defendant failed to pay
her minimum wage and overtime during her employment as a live-in caregiver, as required by
the FLSA, 29 U.S.C. §§ 206, 207. Wesley alleges that she held this position for about six
months. [Record No. 43, p. 2] AHC’s payroll records corroborate this allegation, indicating
that Wesley provided live-in services first on June 9, 2017, and the last on December 9, 2017.
[Record No. 74-4, pp. 4-10] Wesley complains that, during this period, she worked twentyfour hour shifts three to four times per week and was paid a flat fee of $170.00 per shift. AHC
has conceded Wesley’s allegations for purposes of its motion and has submitted records
showing the days Wesley worked. [Record No. 74-4, pp. 4-10] Wesley has not disputed the
accuracy of these records, which correspond with the allegations regarding her work schedule.
[See Record No. 53.]
AHC used its payroll records, along with Wesley’s suggested calculations, to determine
the compensation owed to her. Wesley began working twenty-four-hour shifts during the first
full week of June 2017, when she also worked with patients on an hourly basis at a rate of
$9.50 per hour. [See Record Nos. 10, 74-4.] When employees perform two different types of
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work for different rates of pay during a single workweek, the regular rate for that week is the
weighted average of those rates. 29 C.F.R. § 778.115. The weighted average is determined
by computing the employee’s total earnings for the week and dividing the earnings by the total
number of hours worked at all jobs. Id. Here, Wesley worked 18.25 hours as a CNA and 72
hours as a live-in caregiver, earning a total of $683.38. Based on these values, Wesley’s
regular rate for the week of June 5, 2017 is $7.57. Forty hours at this rate equals $302.80. Her
overtime compensation—50.25 hours times one and one-half the regular rate ($11.36)—
equals $570.84. Therefore, Wesley’s compensation for this week should have been $873.64,
not $683.38. As a result, she is entitled to $190.26 with respect to the work week of June 5,
2017.
The remaining calculations are more straightforward because Wesley worked at a
single rate of pay for the remainder of her employment. Employees may be paid a flat sum for
a day’s work or for doing a particular job. See 29 C.F.R. 778.112. The employee’s regular
rate normally is determined by totaling all sums received at such rates and dividing by the total
number of hours actually worked. Id. But such an employee’s regular rate cannot fall below
the federally-mandated minimum wage.
Wesley noted in her Complaint that $170.00, divided by twenty-four hours is only
$7.08 per hour—lower than the $7.25 minimum wage. See 29 U.S.C. § 206(a)(1)(C). [Record
No. 10, p. 5] She contends that the pay rate for her live-in position should be increased to
$7.25 per hour. [Record No. 53] Since overtime compensation must be a rate “not less than
one and one-half times [an employee’s] regular pay,” Wesley argues she is entitled to overtime
compensation at a rate of $10.88 per hour. Id.

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The specific dates, hours worked, and amounts of pay she actually received are as
follows:2
Week of June 15, 2017—72 hours--$510.00
Week of June 21, 2017—72 hours--$510.00
Week of June 27, 2017—72 hours--$510.00
Week of July 3, 2017—96 hours--$765.003
Week of July 10, 2017—96 hours--$680.00
Week of July 17, 2017—96 hours--$680.00
Week of July 24, 2017—96 hours--$680.00
Week of August 4, 2017—72 hours--$510.00
Week of August 10, 2017—72 hours--$510.00
Week of August 16, 2017—72 hours--$510.00
Week of August 22, 2017—72 hours--$510.00
Week of August 28, 2017—96 hours--$680.00
Week of September 4, 2017—96 hours--$765.004
Week of September 11, 2017—96 hours--$680.00
Week of September 21, 2017—72 hours--$510.00
Week of September 27, 2017—72 hours--$510.00
Week of October 3, 2017—72 hours--$510.00
Week of October 9, 2017—96 hours--$680.00

2

As reflected in Record No. 74-4.
Wesley was paid $225.00 for working July 4, 2017.
4
Wesley was paid $225.00 for working September 4, 2017.
3

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Week of October 16, 2017—96 hours--$680.00
Week of October 23, 2017—96 hours--$680.00
Week of November 3, 2017—72 hours--$510.00
Week of November 7, 2017—96 hours--$680.00
Week of November 13, 2017—96 hours--$680.00
Week of November 25, 2017—72 hours--$595.00
Week of December 1, 2017—72 hours--$510.00
Week of December 7, 2017—72 hours--$510.00
The defendant, and this Court, have utilized Wesley’s requested rates of $7.25 and
$10.88 to calculate the appropriate amount of wages. Applying those values, Wesley should
have been paid $638.16 for the weeks she worked 32 hours of overtime, and $899.28 for the
weeks she worked 56 hours of overtime. From June 15, 2017, through December 9, 2017,
there were 14 weeks during which Wesley worked 32 overtime hours and 12 weeks during
which she worked 56. This results in a sum of $19,725.60 and, when combined with the
compensation owed to Wesley for the week of June 5, 2017, a total of $20,599.24.
AHC’s payroll records indicate that Wesley was paid $16,238.38 during the relevant
time period, resulting in a balance owed to Wesley of $4,360.86. [See Record No. 74-4.]
AHC’s offer of judgment in the amount of $4,455.00 is more than sufficient to compensate her
for these wages. The defendant has also agreed to the injunctive relief that Wesley has
requested: a neutral employment reference and an agreement to refrain from discussing this
lawsuit with third-parties. [Record Nos. 10, p. 10; 68-1]
In response to AHC’s motion to dismiss, Wesley demands $13,518.90, but does not
explain why. To the extent Wesley seeks damages under the Portal-to-Portal Act, 29 U.S.C.
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§ 251, et seq., she has not received the Court’s authorization to bring such a claim. And she
has not alleged any facts to indicate that she performed activities that are compensable under
the Act for which she was not compensated. See 29 U.S.C. § 254.
A final note is appropriate in this case. Throughout this litigation, Wesley continues
attempting to pursue claims that have been disallowed, makes frivolous filings, and engages
in ad hominem attacks against various individuals. [Record Nos. 32, 38, 40, 44, 49, 52, 54,
56, 63, 64, 77] She is therefore reminded that a court’s “special solicitude” toward pro se
litigants “does not extend to the willful, obstinate refusal to play by the basic rules of the
system upon whose very power the plaintiff is calling to vindicate his rights.” Pandozy v.
Segan, 518 F. Supp. 2d 550, 558 (S.D.N.Y. 2007) (imposing pre-filing restrictions against a
litigant “unwilling[] to accept unfavorable rulings on her claims. Each time her claims are
dismissed, she repackages them with new labels, against new defendants, and in new courts,
as part of an ‘ever-broadening conspiracy theory.’”).
Any person proceeding pro se who repeatedly makes frivolous and/or abusive filings
abuses the right to represent herself without counsel and imposes a heavy burden upon the
resources of the court at the expense of other litigants with potentially meritorious claims.
Simply put, this conduct is not appropriate and should not be tolerated. Wesley is advised that
the Court may impose sanctions as may be necessary and appropriate to deter such conduct,
Chambers v. NASCO, Inc., 501 U.S. 32, 44-45 (1991), and will not hesitate to do so should
Wesley continue such conduct in the future.
III.
Based on the foregoing analysis and discussion, it is hereby
ORDERED as follows:
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1.

Defendant AHC’s Second Motion to Dismiss [Record No. 74] is GRANTED.

2.

Related case 5: 18-CV-377-DCR is DISMISSED, with prejudice, and

STRICKEN from the docket.
3.

A corresponding Judgment will be entered this date.

Dated: December 6, 2018.

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