Boyer v. Celerity Solutions Grp., LLC
| Decision Date | 28 August 2020 |
| Docket Number | Civil Action No. 19-cv-00306-RBJ |
| Citation | 482 F.Supp.3d 1122 |
| Parties | Tony BOYER, Plaintiff, v. CELERITY SOLUTIONS GROUP, LLC and Dara Tribelhorn, Defendants. |
| Court | U.S. District Court — District of Colorado |
Mark Joseph Obermeyer, Kevin James Dolley, Kevin J. Dolley, LLC, St. Louis, MO, for Plaintiff.
Logan Ross Martin, Zachary Steven Westerfield, Westerfield & Martin LLC, Denver, CO, for Defendants.
ORDER ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on plaintiff's motion for summary judgment. ECF No. 48. For the reasons outlined below, plaintiff's motion is GRANTED in part and DENIED in part.
The parties do not dispute the following facts. Defendant Celerity Solutions Group, LLC ("Celerity") is a medical and non-medical transcription service that was formed in 2008. ECF No. 48 at ¶1. It is located in Parker, CO. ECF No. 51 at 1. Defendant Dara Tribelhorn is the owner and Chief Executive Officer ("CEO") of Celerity. ECF No. 51 at 1.
Plaintiffs in this case are Tony Boyer, Rebecca Bowen, JoAnna Quintana-Davis, Patricia Nunn, Tiffani Bishop, Lori Morrison, Rebecca Tully, B.J. Whitney, Debra Velovitch, Kaitlin Jorgensen, and Danielle Harris. Id. at 1; ECF No. 51 at 2.
Defendant Ms. Tribelhorn has worked in the medical transcription industry since 1992 and has over 30 years’ experience in the industry. Ms. Tribelhorn has owned and managed Celerity since its formation in 2008. ECF No. 51 at 2. Plaintiffs have all worked at Celerity as Medical Transcriptionists ("MTs"). Id. at 2. Plaintiff Mr. Boyer worked for Celerity from August 28, 2017 to February 21, 2018. ECF No. 48-7 at 3. Mr. Boyer resigned from Celerity on February 21, 2018 via email stating in part that his position had "less than minimum wage compensation." Id.
Celerity employs between 50 and 100 MTs. ECF No. 51 at 1. MTs provide medical transcriptionist services. They are required to review, transcribe, and edit audio files of medical transcriptions for approximately 50 clients, including hospitals and health systems with whom Celerity contracts. Id. All MTs work remotely from home, using their own computer, internet connection, reference materials, foot pedal, transcription player software, and audio file player. ECF No. 48-1, 18:8–10; ECF No. 48-D at 4. Upon being hired, MTs are subject to a 90-day probationary period used to ensure "a minimum amount of competence in a new MT." ECF No. 51-H at ¶¶34–36. Celerity considers MTs "employees from day one" despite this probationary period. ECF No. 48-1, 76:8.
MTs at Celerity are paid by a line rate, also known as a piece rate. MTs use a transcription system to take on jobs and upload completed work. ECF No. 48-1, 16:13–22. The transcription documents produced by an MT are "counted by bytes [and] divided by 65 to equal their line count;" then line counts are added together and multiplied by the line rate. The starting line pay rate is $0.005 to $0.006 for "speech rec editing" and $0.006 to $0.008 for "standard transcription."1 ECF No. 48-4 at 5. MTs and defendants use a software that calculates line counts automatically for pay purposes. ECF No. 51-H at ¶25.
MTs are paid on a semi-monthly basis. A spreadsheet that identifies the number of lines MTs edit or transcribe each day accompanies the pay stubs MTs receive. ECF No. 51-H at ¶28. The pleadings and briefings indicate that MTs are paid per 65-lines of work, not by hour. Defendants do not calculate hourly wages for MTs and have not done so at any point over the last three years. ECF No. 48-1, 34:3–7, 49:20–23; ECF No. 48-5, 23:8–17.
Though Celerity pays MTs by line rate, not by hour, it does require MTs to record and report their hours worked. ECF No. 51-H at ¶27. Defendants require MTs to record their hours for the purpose of calculating State Unemployment Tax Authority ("SUTA" fees) for some states in which MTs work. ECF No. 51-H at ¶40; ECF No. 48-1, 23:13–24. MTs must record the hours they work each day on a "Time Entry" page in a proprietary Celerity system. Celerity asks MTs to record the amount of time it takes, to the nearest quarter hour, to generate their lines of transcription, less the amount of time they take for personal breaks (such as lunch, laundry, picking up children, etc.). ECF No. 48-1, 24:4–12. The transcription upload system shows the supervisor which MT has which job "checked out" at any given time, and whether an MT is logged into the system. ECF No. 48-1, 19:18–19; ECF No. 51-H at ¶52a. However, it does not show whether the MT is actively working (e.g. if the MT is actively transcribing or editing). ECF No. 51-H at ¶52a. MTs report their hours on an "on-your-honor system." This means that defendants do not verify the exact number of hours MT worked nor do they oversee how MTs input their hours. ECF No. 51-H at ¶27.
Celerity maintains an Associate Handbook that includes an overtime policy. ECF No. 51-E at 10. The "Hours of Work" section of the Handbook states Id. Celerity's overtime policy is included as Exhibit 8 to ECF No. 48. Defendants do not dispute that this exhibit is their overtime policy. The policy states that its purpose is "[t]o provide a uniform policy regarding overtime to Celerity Solutions Group Associations that conforms with the U.S. Department of Labor guidelines and Fair Labor Standards Act." ECF No. 48-8 at 1. Overtime at Celerity is calculated as follows:
The overtime policy provides an example of overtime calculation. The overtime policy also states "[o]vertime must have prior approval from the Transcription Coordinator." Id.
Denise Vadnais is the Transcription Coordinator and Director of Operations at Celerity. ECF No. 48-1, 9:5–15; ECF No. 48-5, 5:22–23. She supervises all MTs. ECF No. 48-1, 9:20–22. As the Transcription Coordinator, any request for overtime by an MT would be directed to Ms. Vadnais. Id. ; ECF No. 48-8 at 1. No MT has ever approached Ms. Vadnais with a request for approval for overtime. ECF No. 48-5, 27:22–28:2, 32:11–16, 35:3–7, 45:15–23, 56:18–22. Ms. Vadnais states that MTs are not paid overtime because they are paid by the line. ECF No. 48-5, 80:25–81:1. Ms. Tribelhorn similarly confirms that no MT has ever requested overtime during her operation of Celerity. ECF No. 48-1, 34:11–16, 37:15–17, 64:17–19.
On February 4, 2019 plaintiffs filed this case against Celerity and its CEO, Dara Tribelhorn, as defendants. ECF No. 1 at 1. Plaintiffs allege that defendants have failed to pay minimum wage and overtime in violation of the Fair Labor Standards Act (FLSA). Id. at 8–10. On March 4, 2019 defendants filed an answer denying all claims. ECF No. 9. On May 6, 2019 plaintiffs filed a motion to conditionally certify an FLSA collective ("class") for this case. ECF No. 13. Defendants replied opposing this motion on June 18, 2019. ECF No. 19. This Court denied plaintiffs’ motion as premature on July 23, 2019. ECF No. 24.
Plaintiffs then filed a motion for summary judgment on all claims on April 24, 2020. ECF No. 48. Plaintiffs argue in support of their motion that that defendants have failed to raise any genuine disputes of material fact or to plead any legally or factually valid defenses. Id. at 5–9, 17–19. On May 22, 2020 defendants filed a response opposing the motion for summary judgment. ECF No. 51. Plaintiffs in turn filed a reply to defendants’ response on June 9, 2020. ECF No. 55.
A court may grant summary judgment if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). The moving party has the burden to show that there is an absence of evidence to support the nonmoving party's case. See Celotex Corp. v. Catrett , 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The nonmoving party must "designate specific facts showing that there is a genuine issue for trial." Id. at 324, 106 S.Ct. 2548. A fact is material "if under the substantive law it is essential to the proper disposition of the claim." Adler v. Wal-Mart Stores, Inc. , 144 F.3d 664, 670 (10th Cir. 1998) (citing Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). A material fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson , 477 U.S. at 248, 106 S.Ct. 2505. The court will examine the factual record and make reasonable inferences in the light most favorable to the party opposing summary judgment. See Concrete Works of Colo., Inc. v. City and Cty. of Denver , 36 F.3d 1513, 1517 (10th Cir. 1994).
The Fair Labor Standards Act ("FLSA") is a federal law that establishes minimum wage, overtime pay, recordkeeping, and child labor standards. Under the FLSA an "employer" is defined as "any person acting directly or indirectly in the interest of an employer in relation to an employee and includes a public agency, but does not include any labor organization (other than when acting as an employer) or anyone acting in the capacity of officer or agent of such labor organization." 29 U.S.C. § 203(d). The term "employer" is expansive and includes persons or entities that have "managerial responsibilities" that give the person or entity "substantial control of the terms and conditions of the work of [its] employees." Falk v. Brennan , 414 U.S. 190, 195, 94 S.Ct. 427, 38 L.Ed.2d 406 (1973). An employer is covered by the FLSA if it is an ...
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