Carmack v. Park Cities Healthcare, LLC, Civil Action No. 3:16-CV-3500-D

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: SIDNEY A. FITZWATER, UNITED STATES DISTRICT JUDGE
• Citation: 321 F.Supp.3d 689
• Parties: Charlotte CARMACK, et al., Plaintiffs, v. PARK CITIES HEALTHCARE, LLC, et al., Defendants.
• Docket Number: Civil Action No. 3:16-CV-3500-D
• Decision Date: 25 July 2018

321 F.Supp.3d 689

Charlotte CARMACK, et al., Plaintiffs,
v.
PARK CITIES HEALTHCARE, LLC, et al., Defendants.

Civil Action No. 3:16-CV-3500-D

United States District Court, N.D. Texas, Dallas Division.

Signed July 25, 2018

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Barry S. Hersh, Hersh Law Firm PC, Dallas, TX, for Plaintiffs.

Lloyd Ward, Ward Legal Group PLLC, Michael D. Donohue, Friedman & Feiger LLP, Dallas, TX, for Defendants.

MEMORANDUM OPINION AND ORDER

SIDNEY A. FITZWATER, UNITED STATES DISTRICT JUDGE

In this action by plaintiffs Charlotte Carmack ("Carmack"), Teresa Miller ("Miller"), and Jovan Aniagu ("Aniagu") seeking unpaid overtime compensation and related relief under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq. , against defendants Park Cities Healthcare, LLC ("Park Cities Healthcare") and its owner and president, Sharon D. Westen ("Westen"), plaintiffs move for partial summary judgment on certain claims and defenses. For the reasons that follow, the court grants the motion in part and denies it in part.

I

Carmack, Miller, and Aniagu are former hourly-paid home health employees of Park Cities Healthcare, which is a third-party provider of certified nursing aides, certified medical assistants, and other home health employees.¹ Westen is Park Cities Healthcare's founder, president, sole shareholder, owner/administrator, and nurse. Park Cities Healthcare hired Carmack and Aniagu in 2011, and hired Miller in 2013. Carmack and Miller held the title of Certified Nursing Aid, and Aniagu was classified as a Medical Assistant. From May 2015 until November 2016 Miller also served as a Certified Nursing Aid supervisor and performed additional duties, such as assisting Westen with new employee

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orientation. Plaintiffs primarily provided in-home care to ill or injured elderly individuals. They generally worked 12-hour shifts, during which, inter alia , they performed medically-related services, such as checking vital signs (including blood pressure, pulse, and temperature), assisted the client with daily activities (including dressing, grooming, feeding, bathing, toileting, and transferring to/from bed), and housework (including meal preparation, light housework, and assistance with taking medications).

Plaintiffs reported to Westen and were not employed by individual patients, the patients' families, or the patients' households. Plaintiffs performed all work in private homes that Park Cities Healthcare did not own, manage, or rent.

Plaintiffs were regularly scheduled to work 12-hour shifts at least five days per week, but their actual hours varied. Prior to December 2016, in weeks in which plaintiffs worked greater than 40 hours, they received straight pay, or their regular hourly rate of pay, for the hours in excess of 40. Around December 2016, defendants began paying overtime pay at a rate of 1½ times regular pay to employees for hours worked in excess of 40 hours per week.

On December 26, 2016 Carmack filed this action on behalf of herself and all others similarly situated, alleging that defendants had willfully violated the FLSA, 29 U.S.C. § 207(a)(1), and seeking recovery of unpaid overtime compensation based on a two-year statute of limitations period from January 1, 2015 until the first week of December 2016,² and an equal amount of liquidated damages, as well as attorney's fees and costs. Carmack alleges that, during the two-year limitations period, she worked 1,432 overtime hours, Miller worked 2,066.25 overtime hours, and Aniagu worked 1,903 overtime hours. During the two-year limitations period, Carmack earned between $11 and $12 per hour; Miller earned between $11 and $12.50 per hour; and Aniagu earned $12 per hour. Miller received additional pay for her role as a Certified Nursing Aid supervisor, including $50 per pay period to carry Park Cities Healthcare's on-call phone and a varying hourly rate for her time assisting with new employee orientation.

Miller resigned from Park Cities Healthcare on November 2, 2016. Park Cities Healthcare terminated Carmack's employment on January 13, 2017. And Aniagu resigned on February 17, 2017. Plaintiffs filed a second amended complaint on December 5, 2017,³ which also alleged that defendants had retaliated against Carmack and Aniagu based on their FLSA activity. As of the time of filing this memorandum opinion and order, defendants have not filed an answer to the second amended complaint.

Plaintiffs now move for partial summary judgment, seeking summary judgment on their FLSA overtime claim, their FLSA retaliation claim, and defendants' affirmative defenses of the Companionship Services overtime exemption and good faith under 29 U.S.C. § 260. Defendants oppose the motion.

II

Because plaintiffs will have the burden of proof at trial on their FLSA claims, to obtain summary judgment they "must establish

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‘beyond peradventure all of the essential elements of the claim[s.]’ " Bank One, Tex., N.A. v. Prudential Ins. Co. of Am. , 878 F.Supp. 943, 962 (N.D. Tex. 1995) (Fitzwater, J.) (quoting Fontenot v. Upjohn Co. , 780 F.2d 1190, 1194 (5th Cir. 1986) ). This means that plaintiffs must demonstrate that there are no genuine and material fact disputes and that they are entitled to summary judgment as a matter of law. See, e.g. , Martin v. Alamo Cmty. Coll. Dist. , 353 F.3d 409, 412 (5th Cir. 2003). "The court has noted that the ‘beyond peradventure’ standard is ‘heavy.’ " Carolina Cas. Ins. Co. v. Sowell , 603 F.Supp.2d 914, 923-24 (N.D. Tex. 2009) (Fitzwater, C.J.) (quoting Cont'l Cas. Co. v. St. Paul Fire & Marine Ins. Co. , 2007 WL 2403656, at *10 (N.D. Tex. Aug. 23, 2007) (Fitzwater, J.) ).

Concerning defendants' affirmative defenses, as to which plaintiffs will not have the burden of proof at trial, plaintiffs can meet their summary judgment obligation by pointing the court to the absence of evidence to support the affirmative defense in question. See Celotex Corp. v. Catrett , 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once they do so, defendants must go beyond their pleadings and designate specific facts showing that there is a genuine issue for trial. See id. at 324, 106 S.Ct. 2548 ; Little v. Liquid Air Corp. , 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). An issue is genuine if the evidence is such that a reasonable jury could return a verdict in favor of defendants. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The failure of defendants to produce proof as to any essential element renders all other facts immaterial. See Trugreen Landcare, L.L.C. v. Scott , 512 F.Supp.2d 613, 623 (N.D. Tex. 2007) (Fitzwater, J.). Summary judgment is mandatory if defendants fail to meet this burden. See Little , 37 F.3d at 1076.

III

The court first addresses plaintiffs' FLSA overtime compensation claim.

A

The FLSA provides that "no employer shall employ any of [her] employees ... for a workweek longer than forty hours unless such employee receives compensation for [her] employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which [she] is employed." 29 U.S.C. § 207(a)(1). "An employee bringing an action for unpaid overtime compensation must first demonstrate by a preponderance of the evidence: (1) that there existed an employer-employee relationship during the unpaid overtime periods claimed; (2) that the employee engaged in activities within the coverage of the FLSA; (3) that the employer violated the FLSA's overtime wage requirements; and (4) the amount of overtime compensation due." Johnson v. Heckmann Water Res. (CVR), Inc. , 758 F.3d 627, 630 (5th Cir. 2014).

Once plaintiffs establish a prima facie case, "the burden shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee's evidence." Harvill v. Westward Commc'ns, L.L.C. , 433 F.3d 428, 441 (5th Cir. 2005) (citing Anderson v. Mount Clemens Pottery Co. , 328 U.S. 680, 687-88, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946) ). "If the employer fails to produce such evidence, the court may then award damages to the employee even though the result may only be approximate." Id.

A cause of action for unpaid overtime brought under the FLSA "shall

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be forever barred unless commenced within two years after the cause of action accrued, except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued." 29 U.S.C. § 255(a). The FLSA plaintiff bears the burden of showing that an employer's violation was willful. See Cox v. Brookshire Grocery Co. , 919 F.2d 354, 356 (5th Cir. 1990). To establish a willful violation, the plaintiff "must show that the employer either knew or showed reckless disregard as to whether its conduct was prohibited by the [FLSA]." Id. (citing McLaughlin v. Richland Shoe Co. , 486 U.S. 128, 133, 108 S.Ct. 1677, 100 L.Ed.2d 115 (1988) ). "The Supreme Court has specifically stated that the word ‘willful’ refers to conduct that is voluntary, deliberate, and...