KELLY-MYERS v. MERCY HEALTH SYSTEM OF SOUTHEASTERN PENNSYLVANIA

Filing 39

MEMORANDUM AND/OR OPINION SIGNED BY HONORABLE HARVEY BARTLE, III ON 9/29/17. 9/29/17 ENTERED AND COPIES E-MAILED.(ti, )

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

NICOLE KELLY-MYERS

:
:
:
:
:
:

v.
MERCY HEALTH SYSTEM OF
SOUTHEASTERN PENNSYLVANIA

CIVIL ACTION

NO. 16-5194

MEMORANDUM
Bartle, J.

September 29, 2017
Plaintiff Nicole Kelly-Myers has sued her former

employer, defendant Mercy Health System of Southeastern
Pennsylvania (“Mercy Health”).

She alleges violations of the

Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq.,
Pennsylvania Minimum Wage Act (“PMWA”), 43 Pa. Cons. Stat.
§ 333.104(c), and Pennsylvania Wage Payment Collection Law
(“PWPCL”), 43 Pa. Cons. Stat. § 260.1.

The gravamen of her

complaint is the failure of Mercy Health to pay her overtime
wages after she was promoted to the position of Office Manager.
Before the court is the motion of Mercy Health for summary
judgment pursuant to Rule 56 of the Federal Rules of Civil
Procedure.
I.
Under Rule 56 of the Federal Rules of Civil Procedure,
summary judgment is appropriate “if the movant shows that there
is no genuine dispute as to any material fact and the movant is

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entitled to judgment as a matter of law.”

Fed R. Civ. P. 56(a);

see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

A

dispute is genuine if the evidence is such that a reasonable
factfinder could return a verdict for the nonmoving party.
See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986).

Summary judgment is granted where there is insufficient record
evidence for a reasonable factfinder to find for the nonmovant.
See id. at 252.

We view the facts and draw all inferences in

favor of the nonmoving party.

See In re Flat Glass Antitrust

Litig., 385 F.3d 350, 357 (3d Cir. 2004).
II.
The following facts are not in dispute.

Kelly-Myers

began working full time for Mercy Health in January 2013 as a
Patient Service Representative (“PSR”) in the physician practice
office (“the office”) of Mercy Surgical Associates at Nazareth
Hospital. 1

While Kelly-Myers was a PSR, there were two general

surgery physicians employed at the office: Dr. Charles Schafer
and Dr. Arthur Barnaby.

Dr. Schafer saw patients at the office

on Tuesdays and Dr. Barnaby saw patients at the office on
Wednesdays.

Although the office was open Monday through Friday

1. Mercy Health acquired Barnaby and Schafer Surgical
Associates in 2013. Kelly-Myers had begun working in a customer
service position for Barnaby and Schafer Surgical Associates in
either 2007 or 2008.
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for eight hours each day, Dr. Schafer and Dr. Barnaby generally
only came into the office on days that they saw patients.
As a PSR, Kelly-Myers was paid an hourly wage of $18
per hour and was eligible to receive overtime wages.

Her duties

included registering patients at check in, preparing patient
charts, answering telephones, scheduling appointments, cleaning
surgical instruments, and receiving referrals.

She reported to

Lisa Brackett, who was the Office Manager of the office at that
time.

Brackett was responsible for overseeing the day-to-day

operations of the practice.
On January 20, 2014 Kelly-Myers was promoted to the
full-time position of Officer Manager 1 (“Office Manager”), when
Brackett was transferred to be the Office Manager of several
different offices.

In her new position Kelly-Myers was paid an

annual salary of $41,870 per year with a signing bonus of $4,000
to be paid in two installments.
of vacation than as a PSR.

She received an additional week

She no longer received overtime pay.

While Kelly-Myers was in this position, two Medical
Assistants also worked in the office: Jen Frumento and Barry
Dixon.

These three, Kelly-Myers, Frumento, and Dixon, were, for

the most part, the only three Mercy Health employees who worked
in the office alongside Dr. Schafer and Dr. Barnaby.

Dr.

Schafer and Dr. Barnaby, as noted above, were present in the
office only on Tuesdays and Wednesdays, respectively.
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At

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different points during Kelly-Myers’ tenure as Office Manager,
two other employees, Jackie Przepioski, a “floater” Medical
Assistant, and Kelly Freer, a nurse, also worked in the office.
As Office Manager, Kelly-Myers reported to Phyllis Hilker,
Regional Director of Practice Operations.

On occasion Brackett

stopped into the office to check on things and help Kelly-Myers
transition into the new position.

Kelly-Myers turned to

Brackett for help if needed and considered Brackett a “mentor.”
After Kelly-Myers was promoted to Office Manager, Brackett no
longer had any responsibilities in the office.

In Kelly-Myers’

own words, “[e]verything did fall on me.”
As Office Manager, Kelly-Myers continued fulfilling
the duties she had fulfilled as a PSR.

She testified that these

duties would sometimes take up her entire day at work.

However,

she took on additional duties and had additional responsibility
as Office Manager, which she described as “being responsible for
the day-to-day operations of the practice.”

She further

testified that she was “ultimately responsible for how the
office ran” and that she did whatever she “needed to do” to
ensure that it ran.
Kelly-Myers was responsible for managing two employees
who reported directly and only to her: Medical Assistants
Frumento and Dixon.
Mercy Health.

Frumento originally worked part-time for

She was made a full-time employee at some time in
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2014 after Frumento told Kelly-Myers that she would like to work
full-time, and Kelly-Myers expressed to more senior management
her support of Frumento’s request.

Dixon, who had been employed

at Barnaby and Schafer Surgical Associates prior to its
acquisition by Mercy Health, was hired by Mercy Health in 2014.
He was originally a part-time employee and then later in 2014
became a full-time employee.
Kelly-Myers was responsible for managing Frumento’s
and Dixon’s schedules in a way that ensured that the office was
adequately staffed on a daily basis.

Accordingly she approved

or denied Frumento’s and Dixon’s requests for time off and
coordinated with other Office Managers to find employees to
staff her office, if necessary.

She had the authority to alter

Frumento’s and Dixon’s regular working hours.

She was

accountable for reviewing and verifying Dixon’s and Frumento’s
timecards.

She also managed the schedules and other

professional matters of the office’s physicians, Dr. Schafer and
Dr. Barnaby.
Kelly-Myers also had the authority to issue oral
disciplinary warnings to employees at the practice.

On numerous

occasions, she issued such warnings to Frumento as a result of
Frumento’s repeated tardiness.

Kelly-Myers had the prerogative

to alter an employee’s regular working hours and she did so.
After orally disciplining Frumento, she changed Frumento’s daily
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scheduled working hours from 8:00 a.m. − 4:30 p.m. to 8:30 a.m.
− 5:00 p.m.

Additionally, Kelly-Myers addressed matters in the

workplace that affected the office environment.

For example, on

multiple occasions Kelly-Myers observed an oral altercation
between Dr. Schafer and nurse Freer, who only worked in the
office on Tuesdays.

Kelly-Myers then spoke with Dr. Schafer

about the incidents and reported the incidents to her
supervisor, Phyllis Hilker.

Kelly-Myers requested that Freer no

longer work on Tuesdays in the office.

At some point after this

conversation with Hilker, Freer no longer worked in the office.
Kelly-Myers’ duties included the resolution of
disputes between employees, between employees and patients, and
any patient complaints.

She had the authority to resolve such

problems herself or refer the problem to a superior authority at
Mercy Health.

If a patient asked to speak with a manager,

Kelly-Myers spoke with the patient.
Kelly-Myers made various requests to Mercy Health
management and her supervisor, Phyllis Hilker.

In 2015, after

Kelly-Myers made repeated complaints to Hilker and to her former
supervisor, Lisa Brackett, that the office was inadequately
staffed, Mercy Health hired for the office a “floating” Medical
Assistant, Jackie Przepioski.

Przepioski worked in the office

on Tuesdays and Wednesdays and worked at other Mercy Health

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offices on other days of the week.

Additionally, Kelly-Myers

requested and received four new patient examination beds.
As part of her Office Manager duties, Kelly-Myers was
responsible for staff development.

For example, she determined

whether employees in the office needed additional training with
respect to any of the office computer programs or any of the
office procedures that involved interacting with patients.

She

was obligated to ensure that the office employees understood and
carried out current office procedures, such as procedures for
scheduling patient appointments, standards of communications
with patients, and the procedure for patient intake, among
others.
Kelly-Myers was the only individual from her office
who attended and participated in Mercy Health Office Manager
meetings.

She was required to disseminate to the office any

new, updated, or changed policies or procedures of Mercy Health
that were discussed at the meetings, as well as to ensure that
they were implemented and complied with at the office.

Also as

part of Office Manager meetings, she became a member of the
Mercy Health Surgical Patient Committee, which aimed to make
recommendations on patient care and procedures in the Emergency
Room.
Kelly-Myers monitored the staff in the office to make
sure they were complying with and were up to date with all of
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the relevant policies and procedures.

She had the duty to

remedy any situation in which she determined that the staff was
not in compliance.
Kelly-Myers had many other responsibilities as Office
Manager.

She reviewed daily bank deposits, reconciled the

deposits with collections, and resolved any issues relating to
billing difficulties.

She ordered office supplies.

She ensured

that the office stayed within the budget prescribed to it from
Mercy Health.
While Kelly-Myers had her own office within the
office, she spent most of her time at the front desk.

From her

position at the front desk, she spent a significant amount of
time interacting with patients.

She scheduled appointments,

took patients to examination rooms, took patient vitals, and
accepted insurance, among other things.
complaints.

She handled patient

According to Kelly-Myers, she was the “public face”

of the office.
Kelly-Myers was subject to little to no daily
supervision.

She had the ability to delegate responsibilities

to other employees in the office and, at times, she did so.

She

set her own schedule.
In sum, Kelly-Myers was solely responsible for the
smooth functioning of the office on a daily basis.

At all times

as Office Manager she remained responsible for managing the
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practice, regardless of the amount of time she spent doing
Patient Service Representative duties.
Dr. Barnaby, who saw patients on Wednesdays, testified
that he observed no change in her daily work when Kelly-Myers
was promoted from PSR to Office Manager.

Notably, however, Dr.

Barnaby was only regularly in the office on Wednesdays, and
admitted that he did not know what went on in the office when he
was not there.

Dr. Barnaby described Kelly-Myers as “the person

we go to . . . who sort of organized the office itself” after
former employee Ilene Pastor was not offered a position by Mercy
Health after it acquired Barnaby and Schafer Surgical
Associates.

Barnaby admitted that “[t]he exact function of the

people that were in the office . . . I didn’t know exactly what
people were doing.”

He was unaware of what anyone —

Kelly-Myers, Dixon, Frumento — was required to do.

He

testified, “I don’t know who was responsible for what.”

He said

that there were many “behind the scenes type of things that get
done . . . to keep the practice going that I don’t know exactly
what . . . Nicole [Kelly-Meyers] did and what [her replacement]
is doing.”
Kelly-Myers’ direct supervisor, Phyllis Hilker, who
was not present in the office on a daily basis, testified that
Kelly-Myers had the authority to create specific procedures for
her office that were within the guidelines of overall Mercy
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Health policy.

Hilker maintained that she gave her managers,

including Kelly-Myers, “a lot of autonomy” with respect to
running their individual offices.
II.
We turn first to Kelly-Myers’ FLSA claim.

Kelly-Myers

alleges that she was incorrectly classified by Mercy Health as
an “exempt” employee under the FLSA and as a result of this
misclassification, she did not receive overtime wages that she
was owed under the FLSA.

Mercy Health counters that Kelly-Myers

was properly classified as “exempt” under both the “bona fide
administrative capacity” exemption and the “bona fide executive
capacity” exemption of the FLSA so that it was not required to
pay Kelly-Myers overtime wages.
The FLSA requires employers to compensate certain
employees with overtime wages for all hours worked over forty
hours in one workweek.

The FLSA states, in relevant part:

[N]o employer shall employ any of his
employees who in any workweek is engaged in
commerce or in the production of goods for
commerce, or is employed in an enterprise
engaged in commerce or in the production of
goods for commerce, for a workweek longer
than forty hours unless such employee
receives compensation for his employment in
excess of the hours above specified at a
rate not less than one and one-half times
the regular rate at which he is employed.
29 U.S.C. § 207(a)(1).

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FLSA contains certain exemptions to this overtime pay
requirement, including an exemption for employees working in a
“bona fide . . . administrative . . . capacity.”
§ 213(a)(1).

29 U.S.C.

Under regulations promulgated by the Department of

Labor, an “employee employed in a bona fide administrative
capacity” is an employee:
(1) Compensated on a salary . . . basis at a
rate of not less than $455 per week . . .
exclusive of board, lodging or other
facilities;
(2) Whose primary duty is the performance of
office or non-manual work directly related
to the management or general business
operations of the employer or the employer’s
customers; and
(3) Whose primary duty includes the exercise
of discretion and independent judgment with
respect to matters of significance.
29 C.F.R. § 541.200(a).
narrowly[.]”

“FLSA exemptions should be construed

Lawrence v. City of Philadelphia, 527 F.3d 299,

310 (3d Cir. 2008).
upon the employer[.]”

“The burden of proving these exemptions is
Martin v. Cooper Elec. Supply Co.,

940 F.2d 896, 900 (3d Cir. 1991).
Kelly-Myers does not contest that her compensation
arrangement meets the first prong of the bona fide
administrative capacity exemption.
§ 541.200(a)(1).

See 29 C.F.R.

Nor does she challenge the application to her

of the second prong of the exemption, namely that her “primary

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duty is the performance of office or non-manual work directly
related to the management or general business operations of the
employer[.]”

29 C.F.R. § 541.200(a)(2).

Kelly-Myers focuses

only on the final prong of the exemption.

She contends that

Mercy Health has failed to meet its burden of establishing that
that her “primary duty includes the exercise of discretion and
independent judgment with respect to matters of significance.”
29 C.F.R. § 541.200(a)(3).
The federal regulations that implemented the FLSA
define “primary duty” as the “principal, main, major or most
important duty that the employee performs.”
§ 541.700(a).

29 C.F.R.

The regulations further provide that:

Determination of an employee’s primary duty
must be based on all the facts in a
particular case, with the major emphasis on
the character of the employee’s job as a
whole. Factors to consider when determining
the primary duty include, but are not
limited to, the relative importance of the
exempt duties as compared to other types of
duties; the amount of time spent performing
exempt work; the employee’s relative freedom
from direct supervision; and the
relationship between the employee’s salary
and the wages paid to other employees for
the kind of nonexempt work performed by the
employee.
Id.

In construing similar employment regulations, our Court of

Appeals has held that as a “‘general rule of thumb,’ primary
duty means a duty at which an employee spends the major part, or

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over 50% of his or her time.”

Reich v. Gateway Press, Inc.,

13 F.3d 685, 699 (3d Cir. 1994).
It is important to note that time, however, is only
one of the factors for consideration in this fact-intensive
inquiry.

29 C.F.R. § 541.700(b).

The federal regulations

specifically articulate that “nothing . . . requires that exempt
employees spend more than 50 percent of their time performing
exempt work.

Employees who do not spend more than 50 percent of

their time performing exempt duties may nonetheless meet the
primary duty requirement if the other factors support such a
conclusion.”

Id. 2

Our Court of Appeals has explained that “this

standard [of time] is flexible, depending on the importance of
the administrative duties conducted, the frequency of use of
discretionary power, the freedom from supervision, and
comparative wages.”

O’Bryant v. City of Reading, 197 F. App’x

134, 136 (3d Cir. 2006); see also Guthrie v. Lady Jane
Colleries, 722 F.2d 1141, 1144 (3d Cir. 1983).
The record demonstrates without any genuine dispute
that Kelly-Myers’ primary job duty was managing the office on a

2. The regulations provide an illustrative example of an
assistant manager in a retail establishment who “may have
management as their primary duty” even if the assistant manager
spends “more than 50 percent of the time performing nonexempt
work such as running the cash register.” 29 C.F.R.
§ 541.700(c).
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daily basis.

In her own words, she was “responsible for the

day-to-day operations of the practice.”
Under the third prong of the administrative capacity
exemption, Mercy Health must show that Kelly-Myers’ primary duty
included the “exercise of discretion and independent judgment
with respect to matters of significance.”
§ 541.200(a)(3).

29 C.F.R.

The exercise of discretion and independent

judgment involve “the comparison and the evaluation of possible
courses of conduct, and acting or making a decision after the
various possibilities have been considered.”
§ 541.202(a).

29 C.F.R.

Matters of significance “refers to the level of

importance or consequence of the work performed.”

Id.

The

regulations lay out a number of factors to consider when
determining whether an employee exercised discretion and
independent judgment.

See 29 C.F.R. § 541.202(b).

These

factors include, but are not limited to:
[W]hether the employee has the authority to
formulate, affect, interpret, or implement
management policies or operating practices;
whether the employee carries out major
assignments in conducting the operations of
the business; whether the employee performs
work that affects business operations to a
substantial degree, even if the employee’s
assignments are related to the operation of
a particular segment of the business;
whether the employee has the authority to
commit the employer in matters that have
significant financial impact; whether the
employee has the authority to waive or
deviate from established policies and
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procedures without prior approval; whether
the employee has authority to negotiate and
bind the company on significant matters;
whether the employee provides consultation
or expert advice to management; whether the
employee is involved in planning long- or
short-term business objectives; whether the
employee investigates and resolves maters of
significance on behalf of management; and
whether the employee represents the company
in handling complaints, arbitrating disputes
or resolving grievances.
29 C.F.R. § 541.202(b).

The regulations provide that “employees

who meet at least two or three of [the factors in § 541.202(b)]
are exercising discretion and independent judgment, although a
case-by-case analysis is required.”

69 Fed. Reg. 21, 122, 22,

143 (April 3, 2004).
The exercise of discretion and independent judgment
“implies that the employee has authority to make an independent
choice, free from immediate direction or supervision.”
29 C.F.R. § 541.202(c).

The fact that an employee’s decisions

or recommendations are subject to review at a higher level, or
revised or reversed, does not mean that an employee is not
exercising discretion and independent judgment.

Id.

Kelly-Myers’ own testimony reveals that she exercised
discretion and independent judgment with respect to matters of
significance.

She evaluated each day whether her office was

adequately staffed and made decisions as a result of her
determination.

She was able to approve or deny an employee’s

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request for time off, as well as determine whether to coordinate
with other Office Managers to find coverage for her office.

She

also decided if and when orally to discipline employees for
their conduct.

She was solely responsible for disseminating and

implementing Mercy Health practices to employees in her office.
In addition, she determined whether employees in the office
needed additional training with respect to Mercy Health computer
programs, Mercy Health policies and procedures, or other
additional training.

If she determined additional training was

necessary, she ensured that employees received it.
Kelly-Myers had the ability to deviate from certain
Mercy Health policies and procedures if she determined it was
appropriate to do so.

Kelly-Myers resolved disputes between

employees and handled patient grievances, as well as determined
whether these issues needed to be referred to more senior
management.
In addition, Kelly-Myers made recommendations to her
superiors at Mercy Health.

These recommendations involved

Medical Assistant Frumento becoming a full-time employee;
ordering new patient examination beds; removing nurse Freer from
working at the office on Tuesdays; and hiring a “floater”
employee.
In spite of all these responsibilities, Kelly-Myers
argues that her work really was “secretarial and clerical work”
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and that it does not qualify as the “exercise of discretion and
independent judgment” which is required for the administrative
capacity exemption.

She also relies on 29 C.F.R. § 541.202(e),

which states that “[t]he exercise of discretion and independent
judgment also does not include clerical or secretarial work,
recording or tabulating date, or performing other mechanical,
repetitive, recurrent or routine work.”

She testified in her

deposition that she spent over fifty percent of her time doing
secretarial and clerical work, such as filing paperwork and
speaking with patients.
Kelly-Myers’ testimony that she performed significant
secretarial and clerical work does not remove her from the
administrative capacity exemption.

Kelly-Myers ignores the

“primary duty” aspect of the regulation.
§ 541.200(a)(2-3).

29 C.F.R.

That regulation includes within the

administrative capacity exemption an employee whose primary duty
is the performance of office work directly related to the
general business management of the employer when this primary
duty includes the exercise of discretion and independent
judgment with respect to matters of significance.

Id.

The

record unequivocally demonstrates that Kelly-Myers’ primary
duties were directly related to the general business management
of the office at Mercy Health.

See 29 C.F.R. § 541.200(a)(2).

As she testified, she simply did whatever “needed to be done,”
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which at times included secretarial and clerical work.
Regardless of the time she spent performing secretarial and
clerical work, her own testimony reveals that she was at all
times “ultimately responsible for how the office ran.”
her primary duty was managing the office.
§ 541.200(a)(2).

In sum

See 29 C.F.R.

Her reliance on 29 C.F.R. § 541.202(e) is

misplaced.
Kelly-Myers is an exempt employee as a matter of law.
She falls under the administrative capacity exemption of the
FLSA and the supporting regulations.

Thus we need not address

the “bona fide executive capacity” exemption under the FLSA.
Accordingly, we will grant summary judgment in favor of Mercy
Health and against Kelly-Myers with respect to this claim.
III.
We now turn to Kelly-Myers’ claim under the
Pennsylvania Minimum Wage Act (“PMWA”), the state statute which
parallels the FLSA.

Pennsylvania courts have looked to the

federal statute for guidance in applying the PMWA.

Baum v.

AstraZeneca LP, 372 F. App’x 246, 248 n.4 (3d Cir. 2010).

They

have held that the PMWA substantially parallels the FLSA and
thus “deference is properly given to federal interpretation.”
Levitt v. Tech. Educ. Servs., Inc., 2012 WL 3205490 at *3 (E.D.
Pa. Aug. 7, 2012) (citing Commonwealth v. Stuber, 822 A.2d 870,
873 (Pa. Cmwlth. 2003)).

The PMWA is to be interpreted in the
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same fashion as the FLSA.

See Levitt, 2012 WL 3205490 at *3;

see also Pieretti v. Dent Enterprises, 2013 WL 754436 at *7
(E.D. Pa. Feb. 27, 2013).
The PMWA provides, in relevant part:
Employes shall be paid for overtime not less
than one and one-half times the employe’s
regular rate as prescribed in regulations
promulgated by the secretary . . . the
secretary shall promulgate regulations with
respect to overtime subject to the
limitations that no pay for overtime in
addition to the regular rate shall be
required except for hours in excess of forty
hours in a workweek.
43 Pa. Const. Stat. § 333.104(c).

The PMWA, like the FLSA,

contains an exemption to the overtime pay requirement for
employees in a bona fide administrative capacity.

It provides

that “Employment in the following classifications shall be
exempt from . . . the overtime provisions of this act: . . .
[i]n a bona fide executive, administrative, or professional
capacity[.]”

43 Pa. Const. Stat. § 333.105(a)(5). 3

While the

3. The regulations of the Pennsylvania Department of Labor
Industry, which implement the PMWA, define, in relevant part,
“employment in a bona fide administrative capacity” as work by
an individual:
(1) Whose primary duty consists of the
performance of office or nonmanual work
directly related to management policies or
general operation of his employer or the
customers of the employer.
(2) Who customarily and regularly exercises
discretion and independent judgment.
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criteria for the administrative capacity exemption under the
PMWA is not identical to criteria under the FLSA, courts have
found that the tests for determining whether an employee falls
within an exemption of the statutes are substantially similar.
Vanstory-Frazer v. CCHS Hosp. Co., 2010 WL 22770 at *9 (E.D. Pa.
Jan. 4, 2010).
In a footnote Kelly-Myers argues that the PMWA
explicitly contains a quantitative element that the FLSA does

(3) Who regularly and directly assists an
employer or an employee employed in a bona
fide . . . administrative capacity, who
performs under only general supervision work
along specialized or technical lines
requiring special training, experience or
knowledge, or who executes under only
general supervision special assignments or
tasks.
(4) Who does not devote more than 20% of
time worked in a workweek . . . to
activities which are not directly and
closely related to the performance of the
work described in paragraphs (1)- -(3).
(5) Who is paid for his services a salary of
not less than $155 per week . . . provided
that an employee who is compensated on a
salary or fee basis at a rate of not less
than $250 per week . . . and whose primary
duty consists of the performance of work
described in paragraph (1), which includes
work requiring the exercise of discretion
and independent judgment, shall be deemed to
meet all of the requirements of this
section.
34 Pa. Code § 231.83.
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not contain.

She points to § 231.83(4) of the PMWA regulations,

which provides that an employee who devotes more than twenty
percent of her time to those activities that are not
“administrative” under § 333.105(a)(5) of the statute is not an
exempt employee under the PMWA.

See 43 Pa. Const. Stat.

§ 333.105(a)(5); see also 34 Pa. Code § 231.83(4).

Specifically

Kelly-Myers testified that she spent more than twenty percent of
her time performing Patient Service Representative clerical
tasks, such as answering the phones.

She contends therefore

that she does not fall within the PMWA administrative capacity
exemption.

She further maintains that Dr. Barnaby was not able

to identify her daily responsibilities or changes in her daily
work after becoming Office Manager and that Hilker, her direct
supervisor, was unable to describe ways in which Kelly-Myers
exercised independent judgment.
This argument misconstrues the regulations that
implement the administrative capacity exemption of the statute.
The regulation states, in relevant part, that work by an
individual in an administrative capacity is work by an
individual “who does not devote more than 20% of time worked in
a workweek . . . to activities which are not directly and
closely related to the performance of the work described in
paragraphs (1)− −(3).”

34 Pa. Code § 231.83(4).

Kelly-Myers

testified that she was “ultimately responsible for how the
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office ran.”

She also testified that clerical tasks, such as

answering the phones, were all tasks that “needed to be done” in
order to maintain the smooth operation of the office.

At all

times she was responsible for ensuring that the office
functioned.

Kelly-Myers’ performance of clerical tasks were

“directly and closely related to the performance” of her work as
managing the office on a daily basis.
§ 231.83(1).

See 34 Pa. Code

The reference to the 20% in § 231.83(4) of the

regulations is therefore inapplicable.

She is an exempt

employee as a matter of law.
Accordingly, we will grant Mercy Health’s motion for
summary judgment with respect to Kelly-Myers’ claim under the
PMWA.
IV.
Finally there is the claim of Kelly-Myers under the
Pennsylvania Wage Payment Collection Law (“PWPCL”), 43 Pa.
Const. Stat. § 260.3.

The statute provides, in relevant part:

Every employer shall pay all wages, other
than fringe benefits and wage supplements,
due to his employes on regular paydays
designated in advanced by the employer.
. . . All wages, other than fringe benefits
and wage supplements, earned in any pay
period shall be due and payable within the
number of days after the expiration of said
pay period as provided in a written contract
of employment[.]

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Case 2:16-cv-05194-HB Document 39 Filed 09/29/17 Page 23 of 23

43 Pa. Const. Stat. § 260.3(a).

The term “wages” includes “all

earnings of an employe, regardless of whether determined on
time, task, piece, commission or other method of calculation,”
and “any other amount to be paid pursuant to an agreement to the
employe[.]”

43 Pa. Const. Stat. § 260.2a.

Mercy Health argues that Kelly-Myers was not entitled
to overtime wages because there was no agreement between Mercy
Health and Kelly-Myers that provided she would receive overtime
wages.

Kelly-Myers does not dispute this argument, nor does she

address in any way Mercy Health’s motion for summary judgment
with respect to her PWPCL claim.

Kelly-Myers testified that

after she was promoted to Office Manager, she knew that she was
not eligible to be paid overtime wages in addition to her
salary.

She also testified that there was no separate agreement

that she would receive overtime wages in addition to her salary.
The PWPCL “does not create an independent, substantive right to
compensation,” but rather it “serves as an enforcement mechanism
for employees whose employers have breached a contractual
obligation to pay them wages.”

Pieretti, 2013 WL 754436 at *4.

In the absence of a contractual right to overtime wages, the
WPCL does not afford Kelly-Myers a claim against Mercy Health.
Accordingly, the motion of Mercy Health for summary
judgment on Kelly-Myers’ PWPCL claim will be granted.

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