Nelms v. Kramer

Filing 30

ORDER DENYING 21 Motion for Partial Summary Judgment. Signed by Judge Nancy Stein Nowak. (tm)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

AURELIA NELMS,
Plaintiff,
v.
JEAN MADSEN KRAMER,
AS EXECUTOR OF THE ESTATE OF,
ANNA LOUISE MADSEN,
Defendant.

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CIVIL ACTION NO.
SA-10-CV-627 NN

ORDER DENYING PARTIAL SUMMARY JUDGMENT
This order addresses plaintiff Aurelia Nelms’s motion for partial summary
judgment. After considering the motion, the response, and the summary-judgment
record, I deny the motion.
Nature of the case. Nelms was formerly employed as a domestic worker and
care-giver for decedent Anna Louise Madsen. Relevant here, Nelms worked for
Madsen from May 2008 until Madsen’s death on April 27, 2010. Nelms filed this
lawsuit after Madsen died, alleging a violation of the Fair Labor and Standards Act
(FLSA).1 As the defendant, Nelms named Madsen’s daughter and executor of Madsen’s

1

Docket entry # 1.

estate—Jean Madsen Kramer.
Nelms alleged that Madsen did not pay her overtime pay. As a defense, Kramer
relied on the FLSA’s companionship exception.2 Nelms moved for partial summary
judgment on that affirmative defense.
Kramer responded to the motion for summary judgment, but she filed her
response after the time provided by the Local Rules for responding.3 Kramer asked for
an extension of time. Kramer relied on “the logistical circumstance of filing affidavits
from persons living in multiple states and the legal circumstances of a response
requiring diligence and legal research.”4 Nelms objected to the late filing and
complained that the delay in responding was within Kramer’s control and that Kramer
had not acted in good faith.5
Kramer should have sought an extension of time before the deadline for
responding passed. Failing to do so is cause for admonishing Kramer’s attorney about
the need to comply with the Local Rules, but not to strike Kramer’s response. I grant

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Docket entry # 5, p. 4.

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Local Rules for the Western District of Texas, R. CV-7 (“If any party opposes a
motion, the respondent shall file a response and supporting documents as are then
available within 11 days of service of the motion.”).
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Docket entry # 27.

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Docket entry # 29.
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Kramer’s request for an extension of time (docket entry # 27). I will consider Kramer’s
response in considering Nelms’s motion for summary judgment. “The court shall grant
summary judgment 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.”6
The companionship exception. The FLSA entitles certain employees to overtime
pay for work over 40 hours per week.7 Persons “employed in domestic service
employment to provide companionship services for individuals who (because of age or
infirmity) are unable to care for themselves”8 are excepted from the overtime-pay
requirement. Whether a person falls within the exception is governed the Secretary of
Labor’s regulations. The regulations provide the following:
[T]he term companionship services shall mean those 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, That such
work is incidental, i.e., does not exceed 20 percent of the total weekly

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

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See 29 U.S.C. § 207; Joseph G. Moretti v. Boogers, 376 F.2d 27, 28 (5th Cir. 1967)
(“[O]vertime for holidays, Saturdays, and Sundays are due only for that time in any
particular week in which the employee actually worked more than forty hours.”).
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29 U.S.C. § 213(a)(15).
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hours worked….9
Under this definition, general housework not directly related to Madsen would be
subject to the 20% limit.
The application of the companionship exception to Nelms. The parties agree
that Nelms provided fellowship, care, and protection for Madsen and that Madsen was
a person who, because of advanced age or physical or mental infirmity, could not care
for her own needs. They also agree Nelms provided household work related to
Madsen’s care such as meal preparation, bed making, washing of clothes, and similar
services. They disagree about whether such work exceeded 20 percent of Nelms’s total
hours worked.
Nelms contended the companionship exception does not apply to her former
work because she performed general household work in excess of 20% of the total
weekly hours she worked. To support this position, she relied on her affidavit in which
she attested to providing general household work exceeding 20% of the hours she
worked. She stated that her work included: (1) cleaning and maintaining Madsen’s
2,500 square foot, two bedroom, two bath home, although Madsen used only her
bedroom; (2) cleaning up after visiting numerous family members; (3) shopping and
cooking for visiting family members; (4) cleaning up after Kramer’s fifteen dogs;

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29 CFR § 552.6.
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(5) scheduling and supervising weekend care-givers; and (6) servicing Madsen’s
vehicles. Madsen also presented a week-by-week accounting of her work and a thankyou note from a family member referring to her various services. This evidence
indicates Madsen performed general household work in excess of 20% of the total
weekly hours she worked and thus established the inapplicability of the companionship
exception. Madsen is entitled summary judgment on Kramer’s defense unless Kramer
raises a fact question about whether Madsen performed general household work in
excess of 20% of the total weekly hours she worked.
In response, Kramer presented several affidavits from various family members.
The affidavits contradicted Nelms’s characterization of the percentage of her work
performing general household work, as well as Nelms’s description of the services she
performed for Madsen. For example, Madsen’s grand-daughter attested that: (1) she
visited Madsen for extended periods of time; (2) during her visits, she observed Nelms
occasionally clean part of Madsen’s home; (3) Madsen told her that she would not clean
the guestroom or guest bathroom; (4) Madsen’s home was very dusty; (5) she refused to
sleep in the main house because of dead bugs in the home; and (6) when she was unable
to wash the bed-sheets before departing, Nelms instructed her to leave the sheets for
Madsen’s weekend care-giver. As another example, Kramer attested that: (1) Nelms
told her that cleaning and general housework were not part of her contract; (2) areas of

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the home Madsen did not use were dirty; (3) she cleaned up after her own dogs,
although Nelms’s dogs went potty in the yard; and (4) Nelms did her personal laundry
while working. The affidavits raised a fact question about whether Madsen performed
general household work in excess of 20% of the total weekly hours she worked because
they contradict Nelms’s characterization of her work and the percentage of time worked
on general housework.
Conclusion. Because Kramer raised a fact question about whether Madsen
performed general household work in excess of 20% of her total weekly hours, Nelms is
not entitled to summary judgment on Kramer’s affirmative defense. I deny the motion
for summary judgment (docket entry # 21). Kramer’s attorney is instructed about the
importance of complying with the Local Rules.
SIGNED on August 31, 2011.

_____________________________________
NANCY STEIN NOWAK
UNITED STATES MAGISTRATE JUDGE

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