Carlino v. CHG Med. Staffing, Inc.
| Decision Date | 15 May 2020 |
| Docket Number | No. 1:17-cv-01323-DAD-JLT,1:17-cv-01323-DAD-JLT |
| Citation | 460 F.Supp.3d 959 |
| Court | U.S. District Court — Eastern District of California |
| Parties | Jacqueline CARLINO, an individual on behalf of herself and others similarly situated, Plaintiff, v. CHG MEDICAL STAFFING, INC., Defendant. |
Matthew Bryan Hayes, Kye Douglas Pawlenko, Hayes, Pawlenko, LLP, Pasadena, CA, for Plaintiff.
Kenneth Dawson Sulzer, Sarah Kroll-Rosenbaum, Anthony David Sbardellati, Sayaka Karitani, Constangy Brooks Smith & Prophete, LLP, Los Angeles, CA, for Defendant
ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND GRANTING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT IN PART
This matter is before the court on the parties’ cross-motions for summary judgment. (Doc. Nos. 31, 33.) A hearing on the motions was held on September 17, 2019. Attorneys Matthew Hayes and Kye Pawlenko appeared on behalf of plaintiff, and attorneys Sarah Kroll-Rosenbaum and Sayaka Karitani appeared on behalf of defendant. Having considered the parties’ briefs and oral arguments, and for the reasons set forth below, the court will deny defendant's motion for summary judgment and grant plaintiff's partial motion for summary judgment in part.
No genuine dispute as to any material fact is presented by the pending motions. Defendant CHG Medical Staffing, Inc. ("CHG") staffs nurses and technicians on short-term travel assignments, primarily at hospitals across the United States. (Doc. No. 32, Joint Stipulation re Undisputed Facts ("UF"), at 2.) Between October 2015 and August 2016, CHG staffed plaintiff Jacqueline Carlino on three thirteen-week travel assignments to Madison and Jamesville, Wisconsin and Bakersfield, California. (Id. at 4.) While on each of these assignments, plaintiff's permanent residence was in Pittsburgh, Pennsylvania. (Id. )
The typical travel assignment lasts thirteen weeks and required employees to be away from their homes for the duration of the assignment. (Id. at 2.) Employees staffed to work travel assignments (or "travelers," as the parties refer to them) incurred meal, incidental, and lodging expenses while away from their permanent residences at their assignment locations. (Id. ) In addition to their weekly wages, travelers were provided weekly per diem payments, covering seven days’ worth of meals, incidentals, and housing, either in the form of a housing allowance or company-provided housing (collectively, "the per diem"). (Id. ) CHG used the federal government's Continental United States ("CONUS") per diem rates set by the General Services Administration ("GSA") and the Internal Revenue Service ("IRS") to determine the per diem. (Id. ) The per diems were included in travelers’ weekly electronic deposits or paychecks and appeared as two separate line items on their weekly paystubs. (Id. ) Travelers were not required to provide verification of actual expenses in order to receive per diems, and CHG did not restrict how travelers spent their per diems. (Id. )
The average weekly per diem paid to members of the Rule 23 certified class1 during the class period was $986.55. (Id. at 4.) CHG required travelers to work a specified minimum number of hours each week, generally thirty-six hours consisting of three twelve-hour shifts. (Id. at 3.) Thus, when the average weekly per diem for the class is divided by the thirty-six hours a traveler works each week, the per diem results in an hourly rate of approximately $27.40. (Doc. No. 35-2 at 13.) The average base hourly wage paid to the class was approximately $23.17. (Id. at 12.) Thus, when the hourly per diem rate is combined with the base hourly wage, it results in a combined pay rate of approximately $50.57 per hour.
Whether a traveler is entitled to the full weekly per diem each week is conditioned on whether she has worked the contracted number of minimum required weekly hours. (UF at 3.) If a traveler satisfies her weekly hours requirement, she receives her full weekly per diem. (Id. ) If, however, she does not satisfy the requirement for any reason other than the client facility cancelling a scheduled shift, her weekly per diem is adjusted by CHG pursuant to a Missed Shift Adjustment ("MSA"). (Id. ) The MSA adjusts a specific proportional amount of per diems downward when employees’ weekly hours fall short of their minimum hours’ requirement. (Id. )
On September 29, 2017, plaintiff commenced this collective and class action against CHG based on its alleged failure to include all remuneration—specifically, the value of the per diems—in the regular rate of pay when calculating overtime pay for travelers. (Doc. No. 1 at 1.) Plaintiff asserts: (1) a class action claim for failure to pay overtime wages pursuant to California Labor Code §§ 510, 1194 ; (2) a class action claim for unfair business practices pursuant to California Business and Professions Code § 17200 et seq. ; (3) a class action claim for waiting time penalties pursuant to California Labor Code §§ 201 – 03 ; and (4) a collective action claim for violation of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 207, 216, due to failure to pay overtime wages. (Id. at 8–13.)
On May 14, 2019, both plaintiff and defendant CHG moved for summary judgment, with plaintiff seeking partial summary judgment as to liability only, and CHG seeking summary judgment in its favor as to each of plaintiff's four causes of action. (Doc. Nos. 31, 33.) On June 14, 2019, the parties filed their oppositions, and on July 2, 2019, their replies. (Doc. Nos. 34, 35, 36, 37.)
Summary judgment is appropriate when the moving party "shows that 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). In summary judgment practice, the moving party "initially bears the burden of proving the absence of a genuine issue of material fact." In re Oracle Corp. Sec. Litig. , 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). The moving party may accomplish this by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials" or by showing that such materials "do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1)(A), (B). When the non-moving party bears the burden of proof at trial, as plaintiff does here, "the moving party need only prove that there is an absence of evidence to support the non-moving party's case." Oracle Corp. , 627 F.3d at 387 (citing Celotex , 477 U.S. at 325, 106 S.Ct. 2548 ); see also Fed. R. Civ. P. 56(c)(1)(B). Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, 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. See Celotex , 477 U.S. at 322, 106 S.Ct. 2548. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 322–23, 106 S.Ct. 2548. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for the entry of summary judgment ... is satisfied." Id. at 323, 106 S.Ct. 2548.
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits or admissible discovery material in support of its contention that the dispute exists. See Fed. R. Civ. P. 56(c)(1) ; Matsushita , 475 U.S. at 586 n.11, 106 S.Ct. 1348 ; see also Orr v. Bank of Am., NT & SA , 285 F.3d 764, 773 (9th Cir. 2002) (). The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n , 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the non-moving party, see Anderson , 477 U.S. at 250, 106 S.Ct. 2505 ; Wool v. Tandem Computs. Inc. , 818 F.2d 1433, 1436 (9th Cir. 1987).
In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial." T.W. Elec. Serv. , 809 F.2d at 631. Thus, the "purpose of summary judgment is to ‘pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’ " Matsushita , 475 U.S. at 587, 106 S.Ct. 1348 (citations omitted).
"In evaluating the evidence to determine whether there is a genuine issue of fact," the court draws "all inferences supported by the evidence in favor of the non-moving party." Walls v. Cent. Contra Costa Cty. Transit Auth. , 653 F.3d 963, 966 (9th Cir. 2011). It is the opposing party's obligation to produce a factual predicate from which the...
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