Myers et al v. Marietta Memorial Hospital

Filing 247

ORDER denying 176 Motion for Summary Judgment. Signed by Judge Algenon L. Marbley on 3/27/2019. (cw)

Case: 2:15-cv-02956-ALM-CMV Doc #: 247 Filed: 03/27/19 Page: 1 of 12 PAGEID #: 4566

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
LYNNETT MYERS, et al,

:
:
Plaintiffs,
:
:
v.
:
:
MEMORIAL HEALTH SYSTEM
:
MARIETTA MEMORIAL HOSPITAL, et al :
:
Defendants.
:

Case No. 2:15-CV-2956
JUDGE ALGENON L. MARBLEY
Magistrate Judge Chelsey M. Vascura

OPINION & ORDER
This matter comes before the Court on Plaintiffs’ Motion for Partial Summary Judgment.
(ECF No. 176). For the reasons below, Plaintiffs’ Motion is DENIED.
I.

BACKGROUND
A. Factual Background

The facts of this case are recited in this Court’s earlier Opinion and Order granting class
certification and are reproduced here. (ECF No. 171).
1. The Plaintiffs’ Testimony
Plaintiffs Lynnett Myers, Carol Butler, and Arva Lowther are former nurses at Defendant
Marietta Memorial Hospital, which is operated by Memorial Health System. (See generally ECF
No. 146). Memorial Health System also operates Defendants Selby General Hospital and
Marietta Health Care, Inc., and all of these entities function as joint employers of Memorial
Health System’s employees and operate as a single integrated system. (Id. at ¶¶ 13–
15.) Plaintiffs allege that Defendants’ policy of automatically deducting thirty minutes for a
meal break for nurses and patient care technicians violates the Fair Labor Standards Act

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(“FLSA”) and Ohio wage laws because employees are routinely prohibited from either taking an
uninterrupted meal break or canceling the automatic deduction.
Named Plaintiffs Lynnett Myers, Carol Butler, and Arva Lowther worked as nurses in
multiple departments for Defendants at various time periods between 2004 and 2015. (ECF Nos.
74-1 ¶¶ 1–5; 74-2 ¶¶ 1–5; 74-3 ¶¶ 1–5.) They were hourly employees who often worked more
than 40 hours per week. (ECF Nos. 74-1 ¶ 5; 74-2 ¶ 5; 74-3 ¶ 5.) All three women submitted
affidavits stating that patient care employees did not clock in and out for meal breaks, and that
the hospital had a policy of regularly deducting 30 minutes from each shift for a meal period,
regardless of whether the employees actually received meal breaks. (ECF Nos. 74-1 ¶¶ 6–7; 742 ¶¶ 6–7; 74-3 ¶¶ 6–7.) They also stated that they could not recall a single day in the past three
years during which they were able to take a 30-minute meal break free from their job duties, and
that they were aware of other employees who had the same experience. (ECF Nos. 74-1 ¶¶ 6–9;
74-2 ¶¶ 6–9; 74-3 ¶¶ 6–9.) Finally, Plaintiffs attested that they were reprimanded when they
attempted to cancel the automatic lunch deductions;1 were discouraged from leaving the floor
during scheduled meal breaks; and that managers were aware that nurses were required to work
or were interrupted during their meal breaks, but did not ensure that nurses were completely
relieved of work duties during their uncompensated meal breaks. (ECF Nos. 74-1 ¶¶ 1–5; 742 ¶¶ 1–5; 74-3 ¶¶ 1–5.)
Named Plaintiff Arva Lowther confirmed this information in her deposition testimony.
(ECF No. 75-1.) Lowther also testified that she spoke with several managers about not having
time to take a lunch, yet not getting paid for working through lunch, and also testified that one of
her managers, Mandy Riess, told her and other employees not to clock out no lunch. Lowther

1
Plaintiffs refer to cancelling the automatic lunch deduction as “clocking out no lunch.”
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also testified that she received inadequate training on how to clock out no lunch using the
timekeeping system. Finally, Lowther testified that management altered payroll; thus, she was
unable to confirm that she was paid for working through lunch even when she did cancel the
meal deduction.
Named Plaintiff Carol Butler’s deposition testimony closely mirrors Lowther’s. (ECF No.
75-2.) Butler also testified that she complained to managers at monthly meetings about not being
able to take a lunch, and recalled that on two occasions, she was reprimanded by Reiss after
clocking out no lunch.
Finally, opt-in plaintiffs Kim Weckbacker, Melinda Johnson, Joshua Booth, and Mary
Clegg submitted affidavits in support of Plaintiffs’ motion. (ECF Nos. 74-4; 74-5; 74-6; 74-7.)
And opt-in plaintiff Billie Long submitted a letter detailing her employment for Defendants.
(ECF No. 74-9.) All of these opt-in plaintiffs confirmed that they worked through their lunches
and were not paid. Additionally, all of the opt-in plaintiffs affirmed that they have spoken with
fellow employees who are afraid to join the lawsuit, for fear that their employment will be
terminated.
2. Defendants’ Policies
Plaintiffs allege that all of Defendants’ written policies governing the use of the autodeduct timekeeping system “render the entire auto deduct policy facially illegal.” (ECF No. 74 at
13.) More specifically, Plaintiffs claim that Defendants’ auto-deduct policy violates the FLSA,
the Ohio Prompt Pay Act, and Ohio’s minimum wage and hour statute (which expressly
incorporates the standards and principles of the FLSA). (Id. at 3–5.) Even though certain of
these policies appear legal (e.g., the policy forbidding employees from working off the clock),

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Plaintiffs argue that the evidence they submitted confirms that they are not followed in practice.
The written policies are as follows:


5.1 Scheduling of Lunch periods is the responsibility of the manager. A normal
lunch period is 30 minutes.
...
5.4 Employees are not permitted to work their lunch period without permission of
their Department Manager or Supervisor
5.4.1 Employees who are unable to take an uninterrupted lunch
break due to work load will be instructed to cancel their lunch
deduction by their supervisor or may be released from work 30
minutes early. (Doc. 74, Ex. J.)
According to Plaintiffs, this particular policy is facially illegal because it “places the onus

on the employee to maintain records[,] not the employer.” (ECF No. 74 at 13.) In addition, it
“affirmatively provides supervisors an option not to pay employees for hours worked during an
unpaid lunch”; it gives Defendants the ability to shorten the employees’ workday rather than pay
employees for all hours worked. (Id. at 14.)


1.1 It is the policy of Memorial Health System that the Department Manager
maintain the payroll process for their departments. Each Manager is responsible
for approving the final bi-weekly payroll and assuring the payroll is reported
according to the following guidelines.
...
2.1 Employees enter all time through the Time and Attendance System. They
should not enter benefit hours in excess of what appeared on their last paystub.
....
2.2 Managers are to have all corrections/additions made to their payroll and approved
by noon, Monday of Pay week. (Ex. K.)
Under this policy, managers who have not seen employees working are permitted to alter

payroll records without putting the employee on notice. (Doc. 74 at 17.) Plaintiffs allege that
Defendants did alter payroll records when employees attempted to clock out no lunch. (Id.)

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B. Procedural History
Plaintiffs commenced this collective and class action against Defendants Marietta
Memorial Hospital, Marietta Health Care, Inc., and Selby General Hospital in October 2015.
(ECF No. 1.) They bring causes of action under the FLSA and related Ohio laws. (ECF No.
146). In August 2016, this Court certified conditionally the following class under the FLSA:
All of Defendants’ current and former hourly employees who were responsible
for direct patient care and were subject to Defendants’ automatic meal deduction
policy at any time during the three years prior to the granting of [the motion for
conditional certification] to the present.
(ECF No. 42 at 20.) After this case was conditionally certified as a collective action, Plaintiffs
filed a motion for a temporary restraining order, alleging that Defendants “coerced, intimidated
and harassed” absent class members and created an “atmosphere of fear” such that class
members were afraid to opt in to the lawsuit. (ECF No. 97 at 2). This Court granted Plaintiffs’
motion and granted in part their subsequent motion for a preliminary injunction. (ECF No. 112.)
In granting Plaintiffs’ motion for a preliminary injunction, this Court re-opened the opt-in period
for the class of nearly 2000 individuals through May 1, 2017, and permitted Plaintiffs to reissue
the previously-approved notice to the entire class. (ECF No. 136 at 14.) Defendants were also
enjoined and restrained from communicating directly or indirectly with putative class members
about the lawsuit, with the injunction to remain in place until the Court issues a ruling on the
instant motion. (Id. at 13.)
In September 2017, this Court granted Plaintiffs’ Motion for Class Certification pursuant
to Rule 23 of the Federal Rules of Civil Procedure. (ECF No. 171). Defendants had earlier filed a
Motion for Summary Judgment (ECF No. 164) which was fully briefed before Defendants’
Motion was dismissed without prejudice (ECF No. 210) after Defendants filed a Motion
indicating that merits discovery was incomplete. (ECF No. 206). Plaintiffs also filed a Motion
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which in part opposes Defendants’ now-dismissed Motion for Summary Judgment and in part
requests Summary Judgment in favor of the Plaintiffs. (ECF No. 176). This Motion, too, is fully
briefed and ripe for consideration.
II.

STANDARD OF REVIEW

Federal Rule of Civil Procedure 56(a) provides, in relevant part, that summary judgment
is appropriate “if the movant shows that there is no genuine issue as to any material fact and the
movant is entitled to judgment as a matter of law.” A fact is deemed material only if it “might
affect the outcome of the lawsuit under the governing substantive law.” Wiley v. United States,
20 F.3d 222, 224 (6th Cir. 1994) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). The nonmoving party must then present “significant probative evidence” to show that
“there is [more than] some metaphysical doubt as to the material facts.” Moore v. Philip Morris
Cos., Inc., 8 F.3d 335, 340 (6th Cir. 1993). The mere possibility of a factual dispute is
insufficient to defeat a motion for summary judgment. See Mitchell v. Toledo Hospital, 964 F.2d
577, 582 (6th Cir. 1992). Summary judgment is inappropriate, however, “if the dispute about a
material fact is ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson, 477 U.S. at 248.
The necessary inquiry for this Court 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.’” Patton v. Bearden, 8 F.3d 343, 346 (6th Cir. 1993) (quoting
Anderson, 477 U.S. at 251-52). The mere existence of a scintilla of evidence in support of the
opposing party’s position will be insufficient to survive the motion; there must be evidence on
which the jury could reasonably find for the opposing party. See Anderson, 477 U.S. at 251;
Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir. 1995). It is proper to enter summary judgment

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against a party “who fails to make a showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Where the nonmoving party has “failed to
make a sufficient showing on an essential element of her case with respect to which she has the
burden of proof,” the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S.
at 322 (quoting Anderson, 477 U.S. at 250).
In evaluating a motion for summary judgment, the evidence must be viewed in the light
most favorable to the nonmoving party. S.E.C. v. Sierra Brokerage Servs., Inc., 712 F.3d 321,
327 (6th Cir. 2013).
III.

ANALYSIS

A. FLSA Liability
Plaintiffs first request summary judgment on the issue of FLSA liability, arguing there is
no genuine dispute of material fact that Defendants violated the wage provisions of the FLSA.
This motion must be denied because genuine disputes of material fact remain.
Defendants are correct to note that auto-deduction policies, like Defendants had in place,
are not per se violations of the FLSA. See e.g., Hamm v. Southern Ohio Medical Center, 275
F.Supp.3d 863, 876 (S.D. Ohio 2017). However, if an employee is “required to perform any
activities that could be characterized as substantial duties” during her meal time, that time is
compensable under the FLSA. Hill v. U.S., 751 F.2d 810, 814 (6th Cir. 2984). On the other hand,
an employee is not entitled to compensation under the FLSA if she can “pursue…her mealtime
adequately and comfortably, is not engaged in the performance of any substantial duties, and
does not spend time predominantly for the employer’s benefit…” Id.

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If an employer chooses to implement an auto-deduction policy, it must remain vigilant
that employees are only working the hours for which they are compensated. Such a system does
not shift the burden to the employees to ensure accurate record-keeping. It remains
“the duty of the management to exercise its control and see that the work is not
performed if it does not want it to be performed. It cannot sit back and accept the
benefits without compensating for them. The mere promulgation of a rule against
such work is not enough. Management has the power to enforce the rule and must
make every effort to do so.”
29 C.F.R. § 785.13. See also White v. Baptist Memorial Health Corp., 699 F.3d 869, 879 (6th
Cir. 2012) (Moore, J., dissenting, citing Wage & Hour Div., U.S. Dep’t of Labor, Opinion Letter,
FLSA2007–1NA, at *1 (May 14, 2007) (implementation of automatic pay deduction for lunch
breaks “does not violate the FLSA so long as the employer accurately records actual hours
worked, including any work performed during the lunch period” (emphasis added)); Wage &
Hour Div., U.S. Dep’t of Labor, Fact Sheet # 53, at *3 (July 2009) (“When choosing to
automatically deduct 30–minutes per shift, the employer must ensure that the employees are
receiving the full meal break.”)).
The record reflects that Plaintiffs had their lunch break automatically deducted from their
paycheck even though the testimony reflects that Named and Opt-In Plaintiffs could not
remember receiving an uninterrupted lunch break. See supra, § I.A.1. This is strong evidence
that Defendants’ execution of their facially-valid policy was in violation of the FLSA.
However, Plaintiffs must still demonstrate Defendants had the requisite knowledge. The
regulations provide that “[w]ork not requested but suffered or permitted is work time…. The
reason is immaterial. The employer knows or has reason to believe that [the employee] is
continuing to work and the time is working time.” 29 C.F.R. § 785.11. Plaintiffs’ testimony
reflects that more than one employee voiced their concerns about the automatic lunch deduction.
See supra, §I.A.1. But the record does not conclusively establish who within the Defendants’
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organizational structure knew the class members were working through their lunches without
cancelling the automatic deduction, and when they gained that knowledge. As a result, there
remains a genuine dispute of material fact – namely, the actual or constructive knowledge of
Defendants that Plaintiffs were “not requested but suffered or permitted” to work.
Both parties cite to White as conclusively answering this question in their favor.
Defendants argue White bars this case (ECF No. 189 at 4), while Plaintiffs argue this Court has
already distinguished White. (ECF No. 176 at 1 (citing ECF No. 171 at 12)). In White, the Sixth
Circuit voted 2-1 to uphold a district court’s order granting summary judgment for the employerdefendant. The majority concluded the nurse-plaintiffs had not established the employer’s
knowledge of the failure to pay for missed meal breaks after automatically deducting that time
from employee paychecks.
The Sixth Circuit begins its analysis by noting a “dearth of case law on compensation for
missed meal breaks under the FLSA as compared to the case law on unpaid overtime.” White,
699 F.3d at 873. But, the court reasons, these two types claims can be analogized because they
are “analytically similar.” Id. (quoting Hertz v. Woodbury County, 566 F.3d 775, 783 (8th Cir.
2009). The panel then draws conclusions from out-of-circuit cases discussing unpaid overtime,
concluding that the same test for employer knowledge could apply in cases of missed meal
breaks. Reversing the burden set forth in Department of Labor regulations, the White panel
concluded that “if an employer establishes a reasonable process for an employee to report
uncompensated work time the employer is not liable for non-payment if the employee fails to
follow the established process.” White, 699 F.3d at 876. The panel was unpersuaded by the
nurse-plaintiffs’ citations to cases involving, as the court itself says, “situations where the
employer prevented the employees from reporting overtime or were otherwise notified of the

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employees’ unreported work.” Id. (citing cases). This was not the factual scenario in White,
according to the panel, because “there is no evidence that Baptist discouraged employees from
reporting time worked during meal breaks or that they were otherwise notified that their
employees were failing to report time worked during meal breaks.” Id. at 877. As a result, the
court concluded that there was no genuine dispute of material fact and affirmed the district court.
White can be distinguished from the instant case. The Sixth Circuit, reviewing the grant
of summary judgment, saw “no evidence” that the employer “discouraged employees” from
accurately recording when they worked during lunch, and no evidence that the employer
generally knew that the nurses were failing to report time worked during lunch despite the
automatic meal deduction. By contrast, there is evidence to this effect in the record here. Several
Plaintiffs have testified that they brought the issue to the attention of their supervisors, and some
also testify they were reprimanded for doing so. See supra, §I.A.1. This indicates that there is
evidence both that Defendants “discouraged employees” and that Defendants were “otherwise
notified” that Plaintiffs were failing to report time worked. This factually distinguishes White
from the instant case. As above, the question of when Defendants knew about the apparently
systematic failure to cancel the lunch deduction is a disputed question of material fact. As such,
Plaintiffs’ motion is not barred by White, as Defendants argue, but neither is summary judgment
appropriate at this time.
B. Ohio State Law Claims
Plaintiffs also request summary judgment on their Ohio state law claims. (ECF No. 176 at
35). These Ohio statutes are interpreted in tandem with the Federal FLSA. See e.g. Douglas v.
Argo-Tech Corp., 113 F.3d 67, n.2 (interpreting the FLSA and these Ohio laws “in a unitary
fashion” because the statutes “parallel[]” each other.). As a result, for the foregoing reasons,

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summary judgment is not appropriate at this time because there remain genuine disputes of
material fact.
C. FLSA Record Keeping Violations
Plaintiffs request summary judgment that Defendants are in violation of the FLSA’s
record-keeping requirements. (ECF No. 176 at 36). Specifically, the FLSA requires that every
employer covered by the FLSA shall
“make, keep, and preserve such records of the persons employed by him and of
the wages, hours, and other conditions and practices of employment maintained
by him, and shall preserve such records for such periods of time, and shall make
such reports therefrom to the Administrator as he shall prescribe by regulation or
order as necessary or appropriate for the enforcement of the provisions of this
chapter or the regulations or orders there-under.”
29 U.S.C. § 211(c). Nevertheless, the FLSA does not provide for a private right of action to
enforce this record-keeping provision. Rather, the [a]uthority to enforce the Act’s recordkeeping
provisions is vested exclusively in the Secretary of Labor.” Elwell v. University Hospitals Home
Care Services, 276 F.3d 832, 843 (6th Cir. 2002) (citing 29 U.S.C. §§ 215, 217).
Although an employer’s failure to keep records as prescribed by § 211(c) cannot be
enforced by private action and may not be considered by a jury “for any purpose in determining
willfulness… an employer’s recordkeeping practices may nonetheless corroborate an employee’s
claims that the employer acted willfully in failing to compensate for overtime.” Elwell, 276 F.3d
at 844 (emphasis in original). A jury hearing evidence about an employer’s record-keeping
violations and conclude “this evidence would make it more likely that the employer was aware
of a substantial risk that its activities violated the FLSA, and acted in conscious disregard of that
risk.” Id. As a result, Plaintiffs may submit evidence about Defendants’ alleged record-keeping
violations to a jury at a trial to support their argument that Defendants acted willfully, but

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Plaintiffs may not maintain a separate cause of action alleging violations of § 211(c). As to this
count, summary judgment is denied.
D. Defendants’ Willfulness
Plaintiffs’ final argument is that there is no genuine dispute that Defendants’ violations of
the FLSA were willful. This question depends in substantial part on the evidence about
Defendants’ knowledge. As a result, summary judgment is not appropriate at this time. Because
a determination of Defendants’ willfulness will also affect the determination of damages, this
Court will not address the issue of damages at this time. As to this count, summary judgment is
denied.
IV.

CONCLUSION

For the foregoing reasons, there remains a genuine dispute of material fact such that
summary judgment would be inappropriate at this time. Plaintiffs’ Motion is DENIED.
IT IS SO ORDERED.

s/Algenon L. Marbley ___________
ALGENON L. MARBLEY
UNITED STATES DISTRICT JUDGE
DATED: March 27, 2019

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