Jones et al v. Maxim Healthcare Services, Inc.
Filing
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Opinion and Order. Defendant's Motion for Summary Judgment (Related doc # 48 ) is granted in part and denied in part. Judge Christopher A. Boyko on 3/22/2016. (H,CM)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
VANNI BROWN,
Plaintiff,
vs.
MAXIM HEALTHCARE SERVICES,
Defendant.
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CASE NO. 1:14CV2041
JUDGE CHRISTOPHER A. BOYKO
OPINION AND ORDER
CHRISTOPHER A. BOYKO, J.:
This matter comes before the Court upon the Motion (ECF DKT #48) of Defendant,
Maxim Healthcare Services, Inc., for Summary Judgment. For the following reasons, the
Motion is granted in part and denied in part.
I. BACKGROUND
Plaintiff, Vanni Brown, worked for Maxim as a Home Health Aide (“HHA”) from
approximately March 20, 2012 to November 12, 2014. Maxim provides 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. Each patient has a
unique plan of care customized to the patient’s 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 other duties, 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 HHA arrived and departed; the patient care performed; and the total hours
for each day.
During her tenure with Maxim, Brown cared for eight patients: Samuel Bourn
(September 2014); Rozann Mance (November 2012); Tommie Davis (August 2014); Henry
Johnson (May to November 2012); Torey Neal (November and December 2012); Elizabeth
Robinson (June to September 2014); Anthony Ficzieri (August to November 2014); and
Lynne Reynolds (January to October 2014). Brown regularly worked more than forty hours
per week. In patient Reynolds’ case, Brown worked approximately twelve hours per day, six
days a week. Brown claims that she was not paid 150% of her regular hourly rate for all
hours worked in excess of forty in a work week as required by the Fair Labor Standards Act
(“FLSA”) (29 U.S.C. § 201, et seq.). Maxim insists that Brown, as an HHA, qualified for the
companionship services exemption from the overtime or minimum wage provisions of the
FLSA.
II. LAW AND ANALYSIS
Standard of Review
Summary judgment shall be granted only if “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled 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
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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.” See Fed.R.Civ.P. 56(c)(1)(A), (B). A court
considering a motion for summary judgment must view the facts and all inferences in the light
most favorable to the nonmoving party. 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 must 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. 2004); Weaver v. Shadoan, 340 F.3d 398, 405 (6th Cir. 2003). A fact is material only if
its resolution “might affect the outcome of the suit under the governing law.” Anderson, 477
U.S. at 248.
This 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 matter 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).
FLSA
Under the FLSA, an employee who works more than forty hours in a work week must
receive overtime compensation at a rate of not less than one and one-half times the 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 percent of the total weekly hours worked.
The term “companionship services” does not include services relating to the
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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 persons 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 work for purpose of section 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 #48-29 & ECF DKT #49-15).
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 SuperAmerica, 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 the evidence. Renfro v. Ind. Mich. Power Co., 497 F.3d 573,
576 (6th Cir. 2007).
Plaintiff Vanni Brown’s Claims
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Plaintiff does not dispute the application of the companionship exemption to the care
she provided to seven out of eight of her patients. The Court finds that Plaintiff has
abandoned all those claims, except as to Lynne Reynolds, and has conceded that Maxim is
entitled to partial judgment in its favor. “[A] plaintiff is deemed to have abandoned a claim
when a plaintiff fails to address it in response to a motion for summary judgment.” Brown v.
VHS of Michigan, Inc., 545 F.App’x 368, 372 (6th Cir. 2013), citing Hicks v. Concorde
Career Coll., 449 F.App’x 484, 487 (6th Cir. 2011) (holding that a district court properly
declines to consider the merits of a claim when a plaintiff fails to address it in a response to a
motion for summary judgment).
Claims re: Patient Lynne Reynolds
Maxim acknowledges that, for up to six days per week between January 15, 2014 and
October 8, 2014, Brown provided care to Reynolds, who suffered from multiple sclerosis,
with a typical shift being from 8:30 a.m. to 8:30 p.m. Maxim insists, however, that the
services Brown performed were related to the particular plan of care required for Lynne
Reynolds and that any general household work arguably unrelated to patient care did not add
up to 20 percent of the work she performed on a weekly basis for Reynolds.
In her deposition (ECF DKT #49-4 at 221-230), Brown explains the activities she
performed in the Reynolds’ household:
- cleaning out the fridge one to two times per week for 30 to 35 minutes;
- cleaning out the oven once a week for approximately 30 to 35 minutes,
which involved taking out the racks, spraying it down, letting the cleaner
sit, wiping everything down and placing the racks back in the oven;
- sorting through the garbage to separate recyclables daily, 35 minutes;
- cleaning and organizing the closet every other day for approximately one hour;
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- moving furniture, including a couch and two dressers, “basically every day”for
approximately 30 minutes. This calculation is separate from the time it took
Brown to do the other cleaning once the furniture was moved. Brown had to move
the furniture “away from everything else” before she could clean that area, such as
“moving bags and totes and everything off the couch” before moving the couch out
of the way; and
- cleaning the windows one or two times a week, including 20 minutes for
sliding doors.
In addition, Brown regularly washed dishes, cooked and did laundry for Reynolds’
live-in boyfriend, Ed Walker. She would fix him lunch two to three days out of the week; she
would prepare, serve and clean up after dinner for both Reynolds and Walker; and she had to
clean up the bathroom and pick up after Walker. (ECF DKT #49-4 at pp. 34-37, 71, 75).
Brown picked up toys, shoes, clothes and trash from Reynolds’ grandchildren when
they visited every other weekend. (Id. at 202). Also, Brown cleaned up after Reynolds’ dog
every day. (Id. at 202-204).
Brown further testified that she complained to her supervisors about the additional
work; and they responded: “do your job, we’ll handle it;” “[they] would talk to Ms. Reynolds,
but keep doing what you’re doing;” “there’s nothing [they] can do about it right now.” (Id. at
69-76).
Maxim argues that Brown’s weekly notes did not reference these allegedly nonpatient-related activities. Maxim asserts that Reynolds’ dust allergies and sinus problems
justified daily dusting and regular window washing by the HHA that would not count toward
the 20 percent exception to the exemption. Maxim criticizes Brown for not providing an
exhaustive list of tasks she performed, the time spent on each and the percentage of time in
relation to the total hours worked in a week. Maxim also points out that Brown failed to list
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the “heavy” cleaning and the services necessary for the live-in boyfriend, grandchildren and
dog until after a break in her deposition and the opportunity to confer with her counsel.
The Court is not persuaded by Maxim’s arguments. Maxim labels Brown’s recitation
of time spent on various duties in the Reynolds’ home as “grossly exaggerated” and coached
by counsel; and complains that the “heavy” cleaning and the activities related to Walker, the
grandchildren and the dog were missing from Brown’s required contemporaneous weekly
notes. According to the testimony of Mary Vokurka, Maxim’s Director of Clinical Services,
there is no place on the “Aide Weekly Notes” form for the HHA to log the actual amount of
time spent on a particular task. (ECF DKT #48-26 at p. 101).
As for any characterization of testimony as exaggerated or coached, the Court is
barred from crediting such value judgments:
Credibility determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those of a judge,
whether he is ruling on a motion for summary judgment or for a directed
verdict. The evidence of the non-movant is to be believed, and all justifiable
inferences are to be drawn in his favor. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986).
As the Court noted previously, the companionship services exemption must be
narrowly construed and the employer bears the burden of showing that the exemption applies.
This burden includes a clear showing, by the preponderance of the evidence, that general
household work and services provided to non-patients do not exceed 20 percent of the HHA’s
total hours in a work week. In its Reply Brief, Defendant contends that “at no time does
[Brown] actually quantify the percentage of time that she spent performing such work for
Reynolds.” (ECF DKT #50 at p.9). The Court emphasizes that the onus of showing that the
20 percent threshold exception to the companionship exemption has not been met is on the
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employer, Maxim, and not on Plaintiff Brown.
Plaintiff testified about substantial time spent per work week cleaning the refrigerator,
oven and windows; doing laundry, and preparing, serving and cleaning up after meals for
Walker and Reynolds. In this regard, Vokurka additionally testified about “light” versus
“heavy” housekeeping:
Q. Do you know what that means, when I say “light housekeeping?”
A. Yes, because it’s in relation to the patient only and not the family.
Q. Okay. So heavy housekeeping would – that’s what you would consider for others,
other than the patient?
A. Yes.
(ECF DKT #48-26 at p. 156).
Pursuant to 29 C.F.R. § 785.11: “Work not requested but suffered or permitted is work
time.” Brown testified that she advised her superiors about the work she was doing for
Walker and Reynolds’ grandchildren, but her supervisors instructed her to continue doing
what she was doing. Although it is not binding on this Court, the analysis in Anglin v. Maxim
Healthcare Services, Inc., No. 6:08-cv-689, 2009 WL 2473685 at *7 (M.D. Fla Aug. 11,
2009) is highly persuasive on this point: “The FLSA places the duty on management to
exercise control and see that work is not performed if the employer does not want it
performed; an employer cannot sit back and accept the benefits of an employee’s work
without considering the time spent to be hours worked.”
III. CONCLUSION
There are genuine issues of material fact as to the amount of “heavy” household work
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Plaintiff Vanni Brown performed, and as to the amount of household work she performed for
other than the infirm individual, Lynne Reynolds, during the work weeks from January 15,
2014 to October 8, 2014. Defendant, Maxim Healthcare Services, Inc., has failed to satisfy its
burden of establishing that Plaintiff qualified under the companionship services exemption to
the FLSA overtime mandates. Therefore, the Motion (ECF DKT #48) of Defendant, Maxim
Healthcare Services, Inc., for Summary Judgment is granted in part and denied in part.
IT IS SO ORDERED.
s/ Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge
Dated: March 22, 2016
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