Acosta v. Revolutionary Home Health, Inc.
| Decision Date | 23 April 2020 |
| Docket Number | CIVIL ACTION NO. 3:17-CV-1992 |
| Parties | R. ALEXANDER ACOSTA, SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR, Plaintiff, v. REVOLUTIONARY HOME HEALTH, INC., JENNIFER FELDRA, individually, and as Owner and corporate officer of the aforementioned corporation; and KATHLEEN EVANINA, individually, and as Owner and corporate officer of the aforementioned corporation. Defendants. |
| Court | U.S. District Court — Middle District of Pennsylvania |
(JUDGE MARIANI)
Defendant's Motion for Summary Judgment (Doc. 31) and Secretary's Motion for Partial Summary Judgment (Doc. 34) are pending before the Court. In the underlying action, Plaintiff alleges that Defendants violated the overtime and recordkeeping provisions of the Fair Labor Standards Act ("FLSA" "Act"), 29 U.S.C. § 201, et seq. (Doc. 14 ¶¶ 7-9, 11-12.) Defendants seek summary judgment on the Fair Labor Standards Act claims lodged against them in the Amended Complaint (Doc. 14); Plaintiff seeks summary judgment in his favor on the substantive FLSA claims and requests that the Court find that the substantive violations were willful and warrant an award of liquidated damages and injunctive relief. (Doc. 34 at 2.) For the reasons that follow, the Court will deny Defendant's Motion for Summary Judgment (Doc. 31) and will deny the Secretary's Motion for Partial Summary Judgment (Doc. 34) in part and grant it in part.
Defendant Revolutionary Home Health, Inc., provides skilled in-home nursing and health care services to patients residing in counties throughout the Commonwealth of Pennsylvania. (Doc. 14 ¶ 2.) Defendants Jennifer Feldra and Kathleen Evanina are co-owners of the corporation. (Id. ¶¶ 3, 4.) Each is a fifty percent owner. (Doc. 35 ¶ 7; Doc. 41 ¶ 7.) Ms. Evanina holds the title of chief executive officer with duties which include staff training, hiring, ensuring that the business complies with laws and regulations, directly supervising senior staff, and setting policies and pay rates for employees in general. (Id.) Ms. Feldra is the chief financial officer of the company who oversees all financial aspects of the business. (Doc. 35 ¶ 8; Doc. 41 ¶ 8.) She also signs contracts on behalf of the company, hires employees, and helps to set pay rates for employees. (Id.)
The Department of Labor ("DOL") investigated Defendants for Fair Labor Standards Act compliance. (Doc. 32 ¶ 1; Doc. 38 ¶ 1.) The investigation began in 2016. (Doc. 32 ¶ 4; Doc. 38 ¶ 4.) Jason Mowday was the sole investigator, and Alan Davis, Assistant District Director, reviewed Mr. Mowday's investigative file. (Doc. 32 ¶ 3; Doc. 38 ¶ 3.) Mr. Mowday prepared an investigative file, including a Compliance Action Report dated August 23, 2017. (Doc. 32 ¶ 7; Doc. 38 ¶ 7.)
During the relevant time period, clinical staff were responsible for scheduling their patients for the following day. (Doc. 35 ¶ 12; Doc. 41 ¶ 12.) They would receive a list of patients from their office, determine the order in which to see the patients, and contact each patient to schedule the appointment. (Id.) During the relevant time period, the typical productivity goal was six patient units per day, or 30 per week. (Doc. 35 ¶ 16; Doc. 41 ¶ 16.)
Ms. Feldra acknowledged that references to "hours" in Defendants' payroll records did not reflect actual hours worked but if "80" was referenced in the salary row, that could mean that the clinical employee reached their productivity goal of 30 units in both weeks. (Doc. 35 ¶ 26; Doc. 41 ¶ 26.) The following exchange occurred at Ms. Feldra's deposition: "Q: [I]t looks like it says hours but it doesn't look like it means hours A: Not all the time." (Id.) She also stated that on other lines of the payroll, "hours" could actually refer to mileage driven and paid as a bonus. (Id.) It is possible to estimate the daily stopping time bylooking at the summary of the daily activity report ("DAR") and determining the time of the last appointment of the day. (Doc. 35 ¶ 32; Doc. 41 ¶ 32.)
The Compliance Action Report prepared by Mr. Mowday includes a narrative in which he concludes that 55 employees are owed back pay for overtime. (Doc. 32 ¶ 8; Doc. 38 ¶ 8.) The DOL investigative file contains a list of the 55 employees and the back pay amounts which the investigator believes are due. (Doc. 32 ¶ 9; Doc. 38 ¶ 9.) A list of the same 55 employees is attached to plaintiff's Amended Complaint as Schedule A. (Doc. 32 ¶ 10; Doc. 38 ¶ 10.) The DOL investigative file contains "Interview Statements" of 26 employees, 22 of which were conducted by telephone and 4 of which were conducted in person. (Doc. 32 ¶ 11; Doc. 38 ¶ 11.) All of the interview statements are redacted and none identify the employees interviewed or their dates of employment. (Id.) Mr. Mowday in part based his conclusions regarding hours worked on these 26 interviews and in part on employer's records. (Id.)
In preparing his report, Mr. Mowday testified that he concluded RNs who were working on a fee basis were not exempt employees, concluding that the work of RNs was not unique. (Doc. 32 ¶ 15; Doc. 38 ¶ 15.) He also testified to the following: he is not a nurse and could not state what the general duties of a nurse are; he did not review any patient charts; no nurses he interviewed said they were performing repetitive tasks; he agrees RN work required advanced knowledge and is predominately intellectual; he agrees RNs possess advanced scientific knowledge; and he agrees that RNs acquired theirknowledge via education and training. (Doc. 32 ¶¶ 16-23; Doc. 38 ¶¶ 16-23.) As for LPNs, Mr. Mowday agrees they can be paid per visit. (Doc. 32 ¶ 24; Doc. 38 ¶ 24.) He also testified that because Shawna Norton (assistant to the company's financial officer) told him in their first meeting that clinicians "clock in and out with the patients" he concluded that they were not paid for time between visits. (Doc. 32 ¶ 26; Doc. 38 ¶ 26.) The nurses interviewed by Mr. Mowday told him they were required by Revolutionary to make contemporaneous notes. (Doc. 32 ¶ 29; Doc. 38 ¶ 29.)
Mr. Mowday gave every employee 2 hours of uncompensated time a day totaling ten to fourteen hours a week. (Doc. 32 ¶ 32; Doc. 38 ¶ 32.) He said he arrived at an average of two hours based upon the average of interviews of those who had such complaints, and, for those who were interviewed and had complaints but gave no time, he used one hour. (Doc. 32 ¶ 34; Doc. 38 ¶ 34.)
On July 18, 2017, Mr. Mowday provided defendants with a Summary of Unpaid Wages and demanded that Defendants pay $234,304.72. (Doc. 32 ¶ 41; Doc. 38 ¶ 11.) The Summary of Unpaid Wages included a total of $45,710.12, attributable to Shaya Davis, who Mowday now concedes was a salaried exempt employee. (Doc. 32 ¶ 42; Doc. 38 ¶ 42.) Defendants deposed employees Emily Gillen, Donald Schoeffling, and Toni Miller who had the second, third and fourth highest amounts of back wages calculated by Wage and Hour before the commencement of the litigation. (Doc. 32 ¶ 43; Doc. 38 ¶ 43.)
Donald Schoeffling was deposed on December 13, 2018. (Doc. 32 ¶ 44; Doc. 38 ¶ 44.) Mr. Shoeffling testified that he had never met or spoken to defense counsel prior to his deposition. (Id.) He began his employment as an LPN with Revolutionary Home Health on July 16, 2016. (Doc. 32 ¶ 45; Doc. 38 ¶ 45.) He has no complaints about his pay. (Doc. 32 ¶ 46; Doc. 38 ¶ 46.) He has worked overtime for Revolutionary Home Health. (Doc. 32 ¶ 47; Doc. 38 ¶ 47.) Mr. Shoeffling has productivity goals of seeing 30 patients per week. (Doc. 32 ¶ 48; Doc. 38 ¶ 48.) He is sometimes on call and is compensated for that time. (Doc. 32 ¶ 51; Doc. 38 ¶ 51.) He completes all of his charting in the confines of his 8-hour workday. (Doc. 32 ¶ 52; Doc. 38 ¶ 52.) Mr. Shoeffling's scheduling is populated on his company issued tablet and he is able to complete all of his scheduling related duties, including patient calls, in the confines of his 8-hour workday. (Doc. 32 ¶ 53; Doc. 38 ¶ 53.) He knows he can enter non-visit notes in the Daily Activity Report (DAR) contained in the Electronic Medical Record (EMR) to record time. (Doc. 32 ¶ 54; Doc. 38 ¶ 54.)
Emily Gillen was deposed on December 13, 2018. (Doc. 32 ¶ 55; Doc. 38 ¶ 55.) She has worked as an LPN with Revolutionary Home Health since January 2014. (Id.) Ms. Gillen testified that she had never met or spoken to defense counsel prior to her deposition. (Id.) She has never had any complaints about her pay with Revolutionary Home Health. (Doc. 32 ¶ 56; Doc. 38 ¶ 56.) She is aware of the 30 patients per week productivity requirement and usually sees 6 to 7 patients a day. (Doc. 32 ¶ 57; Doc. 38 ¶ 57.) Ms. Gillen is paid more for seeing in excess of 30 patients per week, even if she works less than40 hours per week. (Doc. 32 ¶ 59; Doc. 38 ¶ 59.) She can see 30 patients in 22 hours (Doc. 32 ¶ 60; Doc. 38 ¶ 60.) She would be paid for her actual hours if she saw less than 30 patients in a given week. (Doc. 32 ¶ 61; Doc. 38 ¶ 61.) She is aware that she can enter work performed outside her 8-hour day in the DAR contained in the EMR. (Doc. 32 ¶ 64; Doc. 38 ¶ 64.)
Toni Miller was deposed on December 13, 2018. (Doc. 32 ¶ 65; Doc. 38 ¶ 65.) She has been a full time RN with Revolutionary Home Health since January of 2016. (Id.) She testified that she had never met or spoken to defense counsel prior to her deposition (Doc. 32 ¶ 66; Doc. 38 ¶ 66.) She started as a per diem employee in 2015. (Doc. 32 ¶ 67; Doc. 38 ¶ 67.) Ms. Miller has never complained about not being correctly paid for overtime. (Doc. 32 ¶ 73; Doc. 38 ¶ 73.) She is able to do all of her charting within the confines of her 8-hour workday. (Doc. 32 ¶ 74; Doc. 38 ¶ 74.) Ms. Miller understood that she could enter work performed outside her 8-hour day in the DAR contained in the EMR. (Doc. 32 ¶ 76; Doc. 38 ¶ 76.)
Summary judgment is appropriate "only where there is no genuine issue of...
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