Hicks v. Great Lakes Home Health Services, Inc. et al

Filing 36

OPINION AND ORDER denying 25 Motion for Summary Judgment; granting 27 Motion for Partial Summary Judgment. Signed by District Judge George Caram Steeh. (MBea)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

LAURA HICKS, on behalf of herself
and similarly situated employees,
CASE NO. 17-CV-12674
HON. GEORGE CARAM STEEH

Plaintiff,
v.
GREAT LAKES HOME HEALTH
SERVICES, INC. and GREAT
LAKES ACQUISITION CORP.,
d/b/a
GREAT LAKES CARING,
Defendants.
____________________________/

OPINION AND ORDER DENYING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT (Doc. 25)
and GRANTING PLAINTIFF’S MOTION
FOR PARTIAL SUMMARY JUDGMENT (Doc. 27) 

This collective action brought under the Fair Labor Standards Act,
(“FLSA”), 29 U.S.C. § 291 et seq., seeks overtime compensation for work
Plaintiff Laura Hicks, a registered nurse, performed as a home health
worker. Now before the court is Defendants’ Great Lakes Home Health
Services, Inc. and Great Lakes Acquisition Corp., d/b/a Great Lakes Caring
(collectively “Defendants”) motion for summary judgment on the basis that

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Hicks was a part-time employee. Because a genuine issue of material fact
exists as to whether Hicks worked more than 40-hours per week,
Defendants’ motion for summary judgment shall be denied. Plaintiff also
seeks partial summary judgment that she was not exempt from the
overtime provisions of the FLSA as a bona fide professional because she
worked on a hybrid fee and hourly basis. Oral argument was heard on
April 26, 2018, and informs this court’s decision. Because Hicks was not
paid on a strict fee-basis, Hicks’ motion for partial summary judgment shall
be granted.

I. Factual Background
Hicks began working for First Care Healthcare, Inc. (“First Care”) in
Springfield, Illinois in January, 2015. Her duties included patient home
visits, as well as documenting visits, performing aide plans, and supervising
other home health workers. She was paid a per-visit fee depending on the
type of care provided, and an hourly fee for on-call, in-service office hours,
and attendance at meetings. Defendants claim that Hicks was a part-time
employee.
On October 27, 2015, Defendant Great Lakes Acquisition Corp., a
Michigan based corporation, acquired First Care. For the next two months,
Hicks continued to work on a hybrid fee and hourly basis, but beginning on
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December 27, 2015, Hicks became a full-time salaried employee. The twomonth time period from October 27, 2015 to December 27, 2015 is referred
to as the “transition period” and it is for this time period only that Hicks
alleges she was a covered employee under the FLSA and was denied
overtime compensation. During this two-month period, Defendants
recorded the time Hicks spent on in-home patient visits on a computer
system known as Kinnser, but did not record the time that Hicks spent
documenting the visits, time spent phoning patients, physicians, and other
staff members, answering or making telephone calls while on-call, or the
amount of time spent traveling to see patients or otherwise compensable
work done between patient visits.
Beginning in January, 2016, Defendants began using a different
computer system to track nurses’ work time known as Homecare
Homebase (HCHB). HCHB was a more comprehensive system and
recorded all work time, including time spent documenting patient visits and
all other work outside home visits. In their motion for summary judgment,
Defendants seek to rely on HCHB time records to extrapolate the time it
would have taken to complete the same tasks in the transition period for
which no contemporaneous time records exist. Based on these
extrapolations, Defendants maintain that Hicks was a part-time employee
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who never worked more than 39.4 hours per week. Defendants maintain
that using the HCHB records to estimate times worked during the relevant
time period is a very conservative method as the HCHB system took longer
to use, based in part, on the fact that staff members were still learning to
use the new system.
In support of their motion for summary judgment, Defendants rely on
the affidavit of Nicolle Fleck, who was Hick’s supervisor, who estimates the
amount of time that Hicks could reasonably have expended on
documentation of various services and travel time, and concludes that
Hicks’ estimate that she worked 50 to 60 hours per week is not plausible.
(Doc. 26, Ex. B). Defendants also rely on the affidavit of their Chief
Operating Officer, Carry VandenMaagdenberg, who calculated the time
that Hicks could reasonably have expended on non-visit work, based on
extrapolations from the HCHB system, and concludes that Hicks worked
less than 40-hours per week during the entire transition period. (Doc. 26,
Ex. D).
Hicks, on the other hand, testified at her deposition that she generally
worked from 8:00 or 9:00 a.m. until 6:00 or 7:30 p.m., worked continuously
during her work day including drive time between patient visits, and then
spent upwards of two hours per evening at home completing patient
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charting. She also testified that she was on-call every other weekend and
spent about 15 minutes on each telephone call she answered while on-call.
This lawsuit is related to a prior suit filed by the same Plaintiff’s
counsel against these same Defendants for alleged overtime violations
under the FLSA. Hutchins v. Great Lakes Home Health Serv., Inc., No. 17CV-10210, 2017 WL 3278209 (E.D. Mich. Aug. 2, 2017). This court
dismissed that suit as time-barred because the named plaintiff’s claims
there arose more than two-years prior to the filing of the suit, and plaintiff
failed to allege facts sufficient to support a finding of “willfulness” which
would have elongated the statute of limitations to three-years. In that suit,
plaintiff sought to add an opt-in form by putative class member Hicks, but
the court did not consider the opt-in form as it had dismissed the named
plaintiff, and thus, there was no basis for continuing the lawsuit. Plaintiff’s
counsel filed this suit less than two weeks after the dismissal of the
Hutchins case, and it largely mirrors that case.
II. Standard of Law
Federal Rule of Civil Procedure 56(c) empowers the court to render
summary judgment "forthwith if the pleadings, depositions, answers to
interrogatories and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the
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moving party is entitled to judgment as a matter of law." See Redding v. St.
Eward, 241 F.3d 530, 532 (6th Cir. 2001). The Supreme Court has
affirmed the court's use of summary judgment as an integral part of the fair
and efficient administration of justice. The procedure is not a disfavored
procedural shortcut. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986);
see also Cox v. Kentucky Dep’t of Transp., 53 F.3d 146, 149 (6th Cir.
1995).
The standard for determining whether summary judgment is
appropriate is "'whether the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one-sided that one party
must prevail as a matter of law.'" Amway Distributors Benefits Ass’n v.
Northfield Ins. Co., 323 F.3d 386, 390 (6th Cir. 2003) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)). The evidence and all
reasonable inferences must be construed in the light most favorable to the
non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986); Redding, 241 F.3d at 532 (6th Cir. 2001). "[T]he
mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact." Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original);
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see also National Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 907
(6th Cir. 2001).
If the movant establishes by use of the material specified in Rule
56(c) that there is no genuine issue of material fact and that it is entitled to
judgment as a matter of law, the opposing party must come forward with
"specific facts showing that there is a genuine issue for trial." First Nat'l
Bank v. Cities Serv. Co., 391 U.S. 253, 270 (1968); see also McLean v.
988011 Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000).
Mere allegations or denials in the non-movant's pleadings will not meet this
burden, nor will a mere scintilla of evidence supporting the non-moving
party. Anderson, 477 U.S. at 248, 252. Rather, there must be evidence on
which a jury could reasonably find for the non-movant. McLean, 224 F.3d
at 800 (citing Anderson, 477 U.S. at 252).
III. Analysis
A.

Defendants’ Motion for Summary Judgment
The FLSA requires employers to maintain proper records

documenting all hours worked by their employees. See 29 U.S.C. § 211(c);
29 C.F.R. § 516.2; Herman v. Palo Group Foster Home, Inc., 183 F.3d 468,
472 (6th Cir. 1999). In the absence of contemporaneous time records, an
employee’s burden of proof on his or her FLSA claim is not an “impossible
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hurdle,” but an employee meets his or her burden if “[she] proves that [she]
has in fact performed work for which [she] was improperly compensated
and if [she] produces sufficient evidence to show the amount and extent of
that work as a matter of just and reasonable inference.” Tyson Foods, Inc.
v. Bouaphakeo, 136 S. Ct. 1036, 1047 (2016) (quoting Anderson v. Mt.
Clemens Pottery Co., 328 U.S. 680, 687 (1946)). “[T]he burden then shifts
to the employer to come forward with evidence of the precise amount of
work performed or with evidence to negative the reasonableness of the
inference to be drawn from the employee’s evidence.” Id. (quoting
Anderson, 328 S. Ct. at 687-88).
The Sixth Circuit has squarely held that an employee’s deposition
testimony, standing alone, may be sufficient to defeat an employer’s motion
for summary judgment in an FLSA action. Moran v. AL Basit LLC, 788
F.3d 201, 205 (6th Cir. 2015). In Moran, the Sixth Circuit found that an
employee’s deposition testimony about the amount of hours he worked was
sufficient to create a genuine issue of material fact even when it was
contradicted by the employer’s contemporaneous time records. Id. The
court stressed that “[w]hether his testimony is credible is a separate
consideration that is inappropriate to resolve at the summary judgment
stage.” Id. The Sixth Circuit reached a similar conclusion in Keller v. Miri
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Microsystems LLC, 781 F.3d 799 (6th Cir. 2015), where the Court held that
in the absence of employer records, “a plaintiff’s testimony is enough to
create a genuine issue of fact.” Id. at 816 (citing Harris v. J.B. Robinson
Jewelers, 627 F.3d 235, 239 (6th Cir. 2010)).
Here, Hicks testified at her deposition that she regularly worked from
8:00 a.m. to 7:30 p.m., did not take any breaks between patient visits, and
spent nearly two hours at home each evening completing patient charting.
She also testified that when on-call, she would make or receive multiple
calls lasting about 15 minutes each – time which Defendants did not
include in their calculations. Hicks challenges the credibility of
VandenMaagdenberg and Fleck on the grounds that they are biased in
favor of their employer. Furthermore, she complains that they made their
estimations without reviewing patients assigned to Hicks or conducting a
time study of similar employees performing those tasks. For the weeks
beginning on October 25 and November 1, 2015, Defendants submit that
the maximum time Hicks worked for each week 39.4 hours. Hicks asserts
if she can show just 37 minutes of work not considered by Defendants, she
has established her FLSA overtime claim.
She states that she does so in several ways: (1) her estimates of time
spent charting patient visits exceed those of Defendants; (2) Defendants do
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not credit her with time worked between patient visits when that time period
lasts longer than an hour, yet she claims she was working during this time
period under C.F.R. §§ 785.7, 785.11-.19;1 (3) Defendants failed to include
all travel time; and (4) Defendants do not credit her time spent answering
and making telephone calls while on-call. Based on the absence of
employer records as to the time Hicks spent on tasks outside in-home
patient visits, and given the parties’ competing and conflicting affidavits and
deposition testimony about the amount of time Hicks worked outside of inhome patient visits, a genuine issue of material fact exists as to whether
Hicks worked more than 40-hours per week during the relevant period.
While Defendants may well convince a jury that Hicks’ time estimates are
grossly inflated, this court cannot weigh credibility in reaching its decision
here.
Defendants argue that Tyson Foods, supra, stands for the proposition
that the court must reject Hicks’ deposition testimony because it is based
on “implausible assumptions.” But Tyson Foods does not help Defendants
here, and Defendants have lifted that language out of context. In that case,
the question involved whether workers in a meat processing plant were
1

The court does not reach the issue of whether her waiting time was compensable, as
that question is fact specific and depends on the totality of the circumstances, and is not
properly before the court at this time. See 29 C.F.R. § 785.14.
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denied overtime compensation in violation of the FLSA because their
employer did not include time spent donning and doffing necessary
protective gear in their pay. 136 S. Ct. at 1041. The matter proceeded to
trial, and on appeal, defendants argued class certification was improper
because in the absence of time records, the district court considered expert
testimony about how long it would take employees to put on the protective
gear which did not account for differences between the type of gear
required for different positions. Id. at 1042-43.
The Court held that the expert testimony was a permissible basis for
representative liability, but noted that representative evidence could be
deficient under Daubert where the representative evidence “is statistically
inadequate or based on implausible assumptions.” Id. at 1048. This case
does not involve representative expert testimony and reaches this court in
a completely different procedural posture, as the court is deciding a motion
for summary judgment, and is not addressing a jury verdict. In sum, Tyson
Foods offers no support to Defendants’ motion. For the reasons set forth
above, a genuine issue of material fact exists as to whether Hicks worked
more than 40-hours per week during the relevant period. Accordingly,
Defendants’ motion for summary judgment shall be denied.

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B.

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Plaintiff’s Motion for Partial Summary Judgment
Plaintiff seeks partial summary judgment by way of a ruling that she

was not a bona fide professional exempt from the overtime provisions of
the FLSA during the transition period. There is no dispute that Hicks
became a salaried professional exempt from FLSA overtime requirements
on December 27, 2015. She only seeks overtime for the nine week period
from October 27, 2015 to December 26, 2015. Defendants respond that
the court should not reach this issue because Hicks only worked part-time
during the transition period. In the alternative, Defendants argue that Hicks
is a bona-fide professional exempt from overtime, or at least there is a
genuine issue of material fact as to whether the FLSA professional
exemption applies. For the reasons set forth below, the issue is not
premature, and Plaintiff is not exempt under the FLSA, as she worked on a
hybrid basis in which she was paid both on a fee-basis and hourly basis.
The FLSA prohibits an employer from employing a non-exempt
employee for more than 40 hours in a week, unless the employee is
compensated at time and a half times the hours worked at the regular rate
in excess of 40 hours. 29 U.S.C. § 207(a). Persons employed in a bona
fide professional capacity are exempt from overtime pay requirements
when they are paid on a salary or fee basis. Elwell v. Univ. Hosps. Home
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Care Servs., 276 F.3d 832, 837 (6th Cir. 2002) (citing 29 U.S.C. §
213(a)(1)). “The employer has the burden of proving that an employee
satisfies any exemptions under the FLSA.” Id. (citations omitted).
“Exemptions under the FLSA are affirmative defenses, therefore, the
[d]efendants bear the burden of proving that a specific exemption applies.”
See Solis v. Suroc, Inc., 49 F. Supp. 3d 502, 506–07 (N.D. Ohio 2014)
(citing Orton v. Johnny's Lunch Franchise, LLC, 668 F.3d 843, 847 (6th Cir.
2012)). Although exemptions under the FLSA have historically been
narrowly construed against the employer, the Supreme Court recently
rejected that principle and held that exemptions should be given a “fair
reading.” Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134, 1142 (2018).
Even under the fair reading principle, Defendants have not shown that
Hicks satisfies the bona-fide professional exemption during the transition
period.
In order to qualify as an exempt bona fide professional, an employee
must be:
(1) Compensated on a salary or fee basis at a rate of not
less than $455 per week ... exclusive of board, lodging, or
other facilities; and
(2) Whose primary duty is the performance of work:

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(i) Requiring knowledge of an advanced type in a field of
science or learning customarily acquired by a prolonged
course of specialized intellectual instruction[.]
29 C.F.R. § 541.300(a)(1–2). There is no dispute that Hicks satisfies the
duties prong because she is a registered nurse. The question arises solely
as to her manner of pay. It is not disputed that Hicks was not paid a salary
during the transition period, but was paid a flat fee for patient visits, and an
hourly fee for in-service training, on-call duties including patient visits, and
required meetings. Specifically, she was paid $20 per hour for time spent
in required staff meetings and in-service training, and $1 per hour while oncall. Amounts paid on an hourly basis were not de minimus. During the
November 15 to 28, 2015 pay period, for example, Hicks was paid $349 in
hourly compensation for time spent in case management conferences, inservice training, and time spent on-call. Because Hicks was compensated
in a hybrid manner — meaning she was paid both a flat fee for patient visits
and compensated on an hourly basis for other tasks — she is not exempt
from the overtime requirements of the FLSA.
Elwell, supra, is dispositive of whether Hicks is an exempt bona fide
professional. Elwell involved home health care nurses who were paid a
fee per visit, as well as hourly compensation for infusion visits that lasted
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service training, and required staff meetings. 276 F.3d at 835. The Sixth
Circuit found that the regulations did not permit the professional exemption
for “fee basis” employment because the employer paid some tasks on an
hourly basis, and the regulations specifically require that in order to qualify
as “fee basis” employment under the FLSA, the employee must be paid for
a completed task “regardless of the time required for its completion.” Id. at
838 (quoting 29 C.F.R. § 541.313(b)). The Sixth Circuit stressed that the
“regardless of the time required for its completion” language “suggests that
a compensation plan will not be considered a fee basis arrangement if it
contains any component that ties compensation to the number of hours
worked.” Id. (emphasis added). While the Department of Labor (“DOL”)
regulations have been renumbered, the “fee basis” exemption remains the
same, and where the employer pays its professional employees on both a
fee basis and an hourly basis, the exemption does not apply. 29 C.F.R. §
541.605 provides:
(a) Administrative and professional employees may be
paid on a fee basis, rather than on a salary basis. An
employee will be considered to be paid on a “fee basis”
within the meaning of these regulations if the employee is
paid an agreed sum for a single job regardless of the time
required for its completion. These payments resemble
piecework payments with the important distinction that
generally a “fee” is paid for the kind of job that is unique
rather than for a series of jobs repeated an indefinite
number of times and for which payment on an identical
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basis is made over and over again. Payments based on
the number of hours or days worked and not on the
accomplishment of a given single task are not considered
payments on a fee basis.
29 C.F.R. § 541.605 (emphasis added).
Hicks argues that because she was paid on an hourly basis for
attending required meetings, attending in-service training, and for on-call
work, she was not paid on a strictly fee basis and the FLSA exemption for
fee based work does not apply. Defendants respond that Elwell is
distinguishable as that case involved a situation where the home health
care workers’ patient visits were not strictly fee based, as certain visits
lasting over two hours were also compensated on an hourly basis, whereas
here, patient visits were compensated solely on the type of visit and no
hourly compensation was ever included. But Defendants have failed to
distinguish Elwell from this case. In Elwell, the Sixth Circuit explained that,
Although Elwell was paid on a strict fee basis for most of
her required job duties, including most of her patient
visits, she was also paid on an hourly basis for some
duties, including infusion visits that lasted longer than two
hours, on-call duty, in-service training, and required staff
meetings. As we have already explained, such a hybrid
plan does not qualify as a fee basis arrangement
276 F.3d at 839. The Sixth Circuit considered plaintiff’s hourly
compensation not just for patient visits, but also for on-call duty, in-service
training, and required staff meetings to bar the FLSA professional
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exemption for fee based work. Under the binding authority of Elwell, the
same result should be reached here.
In addition, the DOL revisited the issue in 2004 when it re-codified the
fee-basis rule, and expressly noted that the rule was in conformity with the
Sixth Circuit’s decision in Elwell and prohibited hybrid payment plans which
combine fee-based and hourly-based compensation from the professional
exemption. Specifically, the DOL stated:
Proposed section 541.605 simplified the fee basis
provision in the current rule, but made no substantive
change. Thus, the proposed rule provided that
administrative and professional employees may be paid
on a fee basis, rather than a salary basis: “An employee
may be paid on a ‘fee basis' within the meaning of these
regulations if the employee is paid an agreed sum for a
single job regardless of the time required for its
completion.” Generally, a “fee” is paid for a unique job.
“Payments based on the number of hours or days worked
and not on the accomplishment of a given single task are
not considered payments on a fee basis.”
The final rule does not make any changes to the
proposed rule. Very few comments were submitted on
this provision. The Fisher & Phillips law firm notes that the
Sixth Circuit in Elwell v. University Hospitals Home Care
Services, 276 F.3d 832 (6th Cir. 2002), held that a
compensation plan that combines fee payments and
hourly pay does not qualify as a fee basis because it ties
compensation, at least in part, to the number of hours or
days worked and not on the accomplishment of a given
single task. It asks the Department to amend the rule to
permit combining the payment of a fee with additional,
non-fee-based compensation. The Department has
decided not to change the long-standing fee basis rule
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because the only appellate decision that addresses this
issue accepted the “fee-only” requirement, and Fisher &
Phillips conceded that this is an “arcane and rarely-used”
provision. We continue to believe that payment of a fee is
best understood to preclude payment of additional sums
based on the number of days or hours worked.
Defining and Delimiting the Exemptions for Executive, Administrative,
Professional, Outside Sales and Computer Employees, 69 FR 22122,
22184 (April 23, 2004). Given the DOL’s explanation of § 541.605(a),
Elwell remains controlling law and requires the court to reject Defendants’
argument that Hicks is a bona fide professional exempt from the FLSA’s
overtime requirements.
Defendants also argue the court should ignore the fee-basis DOL
regulation because it conflicts with the plain terms of the FLSA and is not
entitled to deference under Chevron, U.S.A., Inc. v. National Resources
Defense Council, Inc., 467 U.S. 837, 843 (1984) because the regulation is
arbitrary and capricious. This court must reject these arguments in light of
binding Sixth Circuit authority applying the fee-basis regulation in like
circumstances. Also, the plain terms of the FLSA anticipate that the
Secretary of the DOL would promulgate the very type of regulations at
issue here. Specifically, the FLSA provides that the professional exemption

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shall be construed “as such terms are defined and delimited from time to
time by regulations of the Secretary.” 29 U.S.C. § 213(a)(1).
Defendants also argue that Hicks is not entitled to overtime
compensation for time spent on-call on the basis that time spent waiting for
work time is not compensable unless the “restrictions imposed are so
onerous as to prevent employees from effectively using the time for
personal pursuits.” Martin v. Ohio Tpk. Comm’n, 968 F.2d 606, 611 (6th
Cir. 1992). It is unclear whether Hicks alleges that she was working for all
the time that she was on-call, or whether she seeks credit for hours worked
only for time spent on the phone with physicians or patients, whereas
Defendants only credited her for patient visits that occurred during her oncall shift. (Doc. 33, PgID 575-76). But the court does not reach the issue
now as the court reaches the same decision here regardless of the
overtime issue.
The court also considers Defendants’ claim that the matter of whether
Hicks is exempt as a professional under the fee basis regulation is
premature and should not be decided until and unless the jury renders a
verdict that Hicks worked more than 40-hours per week. Whether or not
Hicks is an exempt professional is a primarily a question of fact, but the
ultimate decision of whether an employee is exempt from the overtime
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provision is a question of law. Ale v. Tenn. Valley Auth., 269 F.3d 680, 691
(6th Cir. 2001); see Schaefer v. Indiana Mich. Power Co., 358 F.3d 394,
407 (6th Cir. 2004) (Surrheinrich, J., concurring). In Elwell, the district court
granted summary judgment for plaintiff as to defendant’s claim that she
was an exempt professional, even where a question of fact existed over
whether plaintiff worked more than 40-hours in a week. The court likewise
addresses this issue now. To put off the issue would waste judicial
resources, as a conclusion that Hicks is an exempt professional would
eviscerate any need for a trial.
IV. Conclusion
Because a genuine issue of material fact exists as to whether Plaintiff
worked more than 40-hours per week, Defendants’ motion for summary
judgment (Doc. 25) is DENIED.
Because Plaintiff does not qualify as an exempt professional under
the FLSA during the transition period, Plaintiff’s motion for partial summary
judgment (Doc. 27) is GRANTED.
IT IS SO ORDERED.
Dated: May 24, 2018
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE

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CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
May 24, 2018, by electronic and/or ordinary mail.
s/Marcia Beauchemin
Deputy Clerk

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