Lawrence v. Maxim Healthcare Services, Inc.
Filing
124
Opinion and Order. Defendant's Motion for Summary Judgment (Related doc # 117 ) is denied. Judge Christopher A. Boyko on 7/13/2016. (H,CM)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
JASMINE LAWRENCE,
Plaintiff,
Vs.
MAXIM HEALTHCARE SERVICES,
INC.,
Defendant.
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CASE NO.1:12CV2600
JUDGE CHRISTOPHER A. BOYKO
OPINION AND ORDER
CHRISTOPHER A. BOYKO, J:
I. BACKGROUND
Plaintiff, Jasmine Lawrence, worked for Defendant, Maxim Healthcare Services, Inc.,
as a Home Health Aid (“HHA”) from approximately May 2011 until October 2012.
Defendant is a provider of home health care, medical staffing and wellness services for
children, adults and senior citizens living with chronic conditions, recovering from illness or
in need of daily assistance. For each patient, Defendant establishes a unique plan of care,
based on the orders of the patient’s treating physician or supervising medical provider,
customized to the patients medical condition, abilities and needs and incorporating the
services that are funded by the insurance provider. Each plan of care specifies the types of
duties that the HHA must perform and the HHA is not authorized to perform any outside the
plan of care, even if requested by the patient. The HHA completes a form entitled “Aide
Weekly Notes” at the end of each shift which the HHA and the patient sign, detailing the time
the HHA arrived and departed; patient care performed and the total hours for each day.
During her time employed by Defendant, Plaintiff provided services to two patients, a
married couple (collectively the “patients”). Plaintiff testified that she regularly worked
approximately sixty-nine to seventy-six hours per week, however, she was paid only her
straight hourly rate for all hours worked over forty each week. The parties agree that there
are weeks in which Plaintiff worked in excess of forty hours and did not receive overtime.
Plaintiff alleges that she is owed overtime for some of the weeks she worked in excess
of forty hours. Defendant alleges that Plaintiff’s employment falls under the companionship
services exemption of the Fair Labor Standards Act (FLSA) and as such, she is not entitled to
overtime. Plaintiff argues that the companionship exemption does not apply to her because
she spent more than 20% of her time performing general household services.
Plaintiff brought suit seeking unpaid overtime on October 17, 2012. Plaintiff initially
sought certification as a representative for a class action suit against Defendant, however her
case was later decertified. Following the decertification of the class, Defendant moved for
Summary Judgment on October 28, 2015.
Because Plaintiff has raised questions of genuine material fact, Defendant’s Motion
for Summary Judgment is denied.
II. LAW & ANALYSIS
A. Standard of Review
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Summary Judgment should be granted only if “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitle to judgment as a matter of
law.” See Fed. R.Civ. P. 56(a). The burden is on the moving party to conclusively show no
genuine issue of material fact exists. Celotex Corp. v Catrett, 477 U.S. 317, 323 (1986);
Lansing Dairy. Inc. V. Espy, 39 F. 3d 1339, 1347 (6th Cir. 1994). The moving party must
either point to “particular parts of materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations, admissions,
interrogatory answers, or other materials” or show “that the materials cited do not establish
the absence or presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.” Matsushita Elec. Indus. Co. V. Zenith Radio Corp.,
475 U.S. 574, 587 (1986). Once the movant presents evidence to meet its burden, the
nonmoving party may not rest on its pleadings, but most come forward with some significant
probative evidence to support its claim. Celotex, 477 U.S. at 324; Lansing dairy, 39 F.3d at
1347.
The “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); accord Leadbetter v Gilley, 385 F. 3d 683, 689-90 (6th
Cir. 2003). A fact is only material if its resolution “might affect the outcome of the suit under
governing law.” Anderson, 477 U.S. at 248.
The Court does not have the responsibility to search the record sua sponte for genuine
issues of material fact. Betkerur v. Aultman Hospital Ass’n., 78 F. 3d 1079, 1087 (6th Cir.
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1996); Guarino v. Brookfield Township Trustees, 980 F. 2d 399, 404-06 (6th Cir. 1992). The
burden falls upon the nonmoving party to “designate specific facts or evidence in dispute,”
Anderson, 477 U.S. at 249-50; and if the nonmoving party fails to make the necessary
showing on an element upon which it has the burden of proof, the moving party is entitled to
summary judgment. Celotex, 477 U.S. at 323. Whether summary judgment is appropriate
depends upon “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 mater of law.” Amway
Distributors Benefits Ass’n v. Northfield Ins. Co., 323 F. 3d 386, 390 (6th Cir. 2003) (quoting
Anderson, 477 U.S. at 251-52).
B. Fair Labor Standards Act
Under the FLSA, an employee who works more than forty hours in a work week must
receive overtime compensation at a rate not less than one and one-half times their regular rate.
29 U.S.C. § 207(a)(1). In 1974, Congress amended the FLSA to include many “domestic
service” employees not previously subject to its minimum wage and maximum hour
requirements. See Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158 (2007). At the
same time, Congress created an exemption that excluded from FLSA coverage certain
employees such as companionship workers. Id., citing 29 U.S.C. § 213(a)(15). The
Department of Labor defines “companionship services” as:
[T]hose services which provide fellowship, care, and protection
for a person who, because of advanced age or physical or
mental infirmity, cannot care for his or her own needs. Such
services may include household work related to the care of the
aged or infirm person such as meal preparation, bed making,
washing of clothes, and other similar services. They may also
include the performance of general household work. Provided,
however, [t]hat such work is incidental, i.e., does not exceed 20
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percent of the total weekly hours worked. The term
“companionship services” does not include services relating to
the care and protection of the aged or infirm which require and
are performed by trained personnel, such as a registered or
practical nurse. 29 C.F.R. § 552.6.
Moreover, “[t]he companion must perform the services with respect to the aged or
infirm person and not generally to other persons.” 29 C.F.R. § 552.106.
A Department of Labor opinion letter from March 16, 1995, referenced by both
Plaintiff and Defendant, reads in part:
[I]t is our opinion that such activities as cleaning the patient’s
bedroom, bathroom or kitchen, picking up groceries, medicine,
and dry cleaning would be related to personal care of the patient
and would be the type of household work that would be exempt
for purposes of § 13(a)(15) of the FLSA. However, activities
involving heavy cleaning such as cleaning refrigerators, ovens,
trash or garbage removal and cleaning the rest of a “trashy”
house would be general household work or nonexempt work
that is subject to the 20 percent time limitation. (ECF DKT
#117-26 & ECF DKT #120-18).
FLSA exemptions are “affirmative defense[s] on which the employer has the burden
of proof.” Corning Glass Works v. Brennan, 417 U.S. 188, 196-97 (1974). Exemptions “are
to be narrowly construed against the employers seeking to assert them.” Arnold v. Ben
Kanowsky, Inc., 361 U.S. 388, 392 (1960). See Thomas v. Speedway SuperAmerican, LLC,
506 F. 3d 496, 501 (6th Cir. 2007). While the Sixth Circuit has observed that an employer
“must establish through ‘clear and affirmative evidence’ that the employee meets every
requirement of an exemption,” Ale v. TVA, 269 F. 3d 680, 691 (6th Cir. 2001), the burden of
proof on an employer is not heightened; rather, an employer has the burden of establishing the
elements by a preponderance of evidence. Renfro v Ind. Mich. Power Co., 497 F. 3d 573, 576
(6th Cir. 2007).
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1. Defendant’s Motion for Summary Judgment on FLSA and Ohio Wage Act Overtime
Claims
Defendant argues that the nature of Plaintiff’s duties placed her employment into the
companionship services exception to the FLSA. Defendant argues that Plaintiff was assigned
to follow a plan of care for her two patients, that the patients’ plans of care were ordered by
their medical providers and that therefore, any task listed on their plans of care is de facto
related to the personal care of the patients. Defendant further argues that any general
housework unrelated to patient care done by Plaintiff did not add up to 20% of the work she
performed on any given week. Thus, Defendant argues that if Plaintiff followed the plan of
care, that would mean all of Plaintiff’s work falls squarely into the companionship exemption.
However, Plaintiff disputes the application of the companionship exemption to the
care she provided to her patients. Plaintiff makes a number of claims about the care she
provided, which taken in total, raise genuine issues of material fact about whether or not her
employment should have been considered exempt under the FLSA. Plaintiff testified she
often spent time on general household cleaning tasks, such as taking out the trash (Id. at 69,
105, 124), cleaning the refrigerator (Id. at 71, 165), cleaning the oven (Id. at 72, 105, 151-52),
cleaning off the porch (Id. at 108), washing the windows (Id. at 106), and dusting (Id. at 165).
Also, in Plaintiff’s deposition, she lists two family members who lived with her
patients, as well as an additional eight grandchildren who visited several times a week, often
staying all day or even overnight. (ECF DKT #120-1 at 39-43). Plaintiff testified that the
additional family members would mix their dirty laundry in with the laundry Plaintiff was
obligated to clean. Id. at 188-89. Plaintiff also testified that the family members would
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leave dirty clothes and shoes laying around the house, as well as spills and garbage for
Plaintiff to clean. Id. at 45-46, 70-71, 84-85. Plaintiff testified that the grandchildren would
frequently rearrange the furniture to create play areas and that Plaintiff, in keeping with her
responsibility to keep the walkways in the home safe and secure, would have to move the
furniture back into place. Id. at 45. Plaintiff testified that she was often asked to cook larger,
family style meals, so that her patient’s extended family could dine alongside her patients. Id.
at 75-76, 131-34, 190-91, 198-99. Plaintiff further testified that, after cooking larger meals
for the entire family, she would also have to wash dishes for entire family. Relatedly,
Plaintiff testified that she often had to wash dishes left in the sink from family meals
occurring prior to her shift. Id. at 107, 153. Plaintiff testified that she was tasked with
cleaning both bathrooms, a task made more time consuming by the fact that the entire family
used the bathrooms, relying on Plaintiff to keep them clean. Id. at 71.
Plaintiff contends that Defendant was aware that there were additional family
members in the home and that her supervisors had often observed her taking care of, cleaning
up after or feeding the grandchildren. Id. at 154, 195-96, 202. Plaintiff further testified that
she was verbally instructed to do what was necessary to keep the patient happy, even if that
meant going above and beyond the tasks listed in her patient’s plan of care. Id. at 46-47, 183.
Defendant argues that Plaintiff’s weekly notes did not reference any services
performed for non-patients. However, Defendant’s training material indicates that HHA’s are
to document the services provided to the patient with a minimum of subjective data (ECF
DKT #120-4 at 0522) and Defendant’s Aide Weekly Notes form had no express field to
document the provision of services that were not on the plan of care. Indeed, one of
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Defendant’s representatives testified that Plaintiff was considered an exempt employee at the
time of hiring and no ongoing effort was made by Defendant to verify whether or not
Plaintiff’s work was exempt or non-exempt on a week to week basis. (ECF DKT #120-12 at
50-52, 143-44). Similarly, several of Defendant’s employees testified that Defendant was not
even interested in collecting information relevant to an analysis of its employee’s exempt or
non-exempt status. (ECF DKT #120-5 at 43-44, #120-7 at 136, #120-10 at 40-43).
Defendant further argues that any additional effort by Plaintiff that benefitted the
family was tethered to work she was required to do for her patients and that such work would
need to be wholly separate in order to be exempt. Additionally, Defendant mischaracterizes
Plaintiff’s argument, suggesting that by citing to Anglin v Maxim Healthcare Servs. Inc.,
Plaintiff seeks to have any work involving both exempt and non-exempt functions be
automatically considered non-exempt work. No. 08-689, 2009 WL 2473685. Rather,
Plaintiff correctly asserts the Anglin holding, that whenever work simultaneously involves
both exempt and non-exempt functions, a genuine issue of material fact arises as to whether
or not the work is exempt. Similarly, Defendant misconstrues Plaintiff’s argument that an
employer could lose the companionship services exemptions exemption in any week in which
non-exempt work is performed, suggesting that Plaintiff seeks this result regardless of
whether or not she performed more than 20% non-exempt work in a week. Rather, Plaintiff
correctly argues that in any week in which she performs non-exempt work, there exists a
genuine issue of material fact, an analysis as to whether or not that non-exempt work
comprised greater than 20% of the total work she did that week, as regulation only allows for
the application of the exemption if the performance of general household work is “incidental,
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i.e., does not exceed 20 percent of the total weekly hours worked.” 29 C.F.R. § 552.6.
Because genuine issues of material fact exist between the parties as to whether or not Plaintiff
performed more than 20% non-exempt in some work weeks, the Court denies Defendant’s
Motion for Summary Judgment on Plaintiff’s overtime claim.
2. Defendant’s Motion for Summary Judgment on Ohio Prompt Pay Act Claim
Defendant’s argument for summary judgment on this claim turns on finding for the
Defendant on Plaintiff’s overtime claims. Essentially, if Defendant is granted summary
judgment on Plaintiff’s overtime claims, then Defendant owes Plaintiff no back pay.
However, as Plaintiff has established genuine disputes over material fact in regard to her
overtime claims, those claims survive. Similarly, because the parties have a genuine dispute
over wages owed to the Plaintiff, the Court denies Defendant’s Motion for Summary
Judgment on Plaintiff’s Prompt Pay claim
3. Defendant’s Motion for Summary Judgment on “Off the Clock Claims”
Plaintiff testified that she was working time outside of her scheduled shift by
Defendant, not reporting working the time outside of her shift and not being paid for that
time. (ECF DKT #120-172-173). Plaintiff further testified that she was instructed by
Defendant not to report working time outside of her scheduled shift. Id. at 174-175. When
confronted with time sheets from periods throughout most her tenure of employment, Plaintiff
admitted to submitting reports, accurate to the minute, for work outside of her scheduled shift
and for being paid for all reported work. Id. at 176-177. However, in keeping with Plaintiff’s
testimony that she was told not to report any unscheduled work, and after reporting work
periods accurate to the minute for most of her tenure of employment, Plaintiff has a small
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number of pay periods towards the end of her time working for Defendant that claim Plaintiff
worked her scheduled shift exactly each week. Id. at 147-49. Because the parties have a
genuine dispute as to a material fact, whether or not Plaintiff worked unreported hours, the
Court denies Defendant’s Motion for Summary Judgment on Plaintiff’s “off the clock”
claims.
III. CONCLUSION
Plaintiff has presented evidence that establishes a genuine dispute over material facts
between the parties, specifically as to the amount of “heavy” housework Plaintiff performed
and the amount of household work Plaintiff performed for individuals other than her patients.
Defendant, Maxim Healthcare services, Inc. has failed to satisfy its burden of establishing that
Plaintiff qualified under the companionship exemption to the FLSA overtime mandates.
Similarly, the parties have a dispute as whether Defendant owes Plaintiff any unpaid wages
and whether Plaintiff worked any unpaid hours. Therefore, the Court denies Defendant’s
Motion for Summary Judgment (ECF DKT #117-1) for all claims.
IT IS SO ORDERED.
s/ Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge
Dated: July 13, 2016
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