Cummings v. Bost, Inc.

• Decision Date: 01 November 2016
• Docket Number: No. 2:14–CV–02090,2:14–CV–02090
• Parties: Janet CUMMINGS; Emilia Martinez; Victor Pierini; and Laurel Ringuis, Plaintiffs v. BOST, INC., d/b/a Bost, Defendant.
• Court: U.S. District Court — Western District of Arkansas

218 F.Supp.3d 978

Janet CUMMINGS; Emilia Martinez; Victor Pierini; and Laurel Ringuis, Plaintiffs

v.BOST, INC., d/b/a Bost, Defendant.

No. 2:14–CV–02090

United States District Court, W.D. Arkansas, Fort Smith Division.

Signed November 1, 2016

Cheslee Denise Mahan, West Fork, AR, Josh Sanford, Sanford Law Firm PLLC, Stephen Rauls, Attorney at Law, Little Rock, AR, for Plaintiffs.

James D. Robertson, Samuel Brent Wakefield, Barber Law Firm PLLC, Little Rock, AR, for Defendant.

OPINION AND ORDER

P.K. HOLMES, III, CHIEF U.S. DISTRICT JUDGE

Before the Court are Defendant Bost, Inc.'s ("Bost") motion for summary judgment (Doc. 94), Plaintiffs Janet Cummings, Emilia Martinez, Victor Pierini, and Laurel Ringuis's response (Doc. 97), Bost's reply (Doc. 99), and the parties' supporting documents. Also before the Court is Plaintiffs' cross-motion for partial summary judgment (Doc. 100), Bost's response (Doc. 103), Plaintiffs' reply (Doc. 106), and the parties' supporting documents as to that motion. Plaintiffs filed a supplement to their motion (Doc. 109) to which Bost responded (Doc. 110). For the following reasons, Bost's motion for summary judgment (Doc. 94) will be GRANTED IN PART, and Plaintiffs' motion for partial summary judgment (Doc. 100) will be DENIED.

I. Background

Bost is a private, not-for-profit corporation that provides care to disabled persons throughout Arkansas. Plaintiffs were employed by Bost as caregivers for Bost clients who lived in the Plaintiffs' homes. Plaintiffs' amended complaint (Doc. 90) was brought under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et. seq., and the Arkansas Minimum Wage Act ("AMWA"), Ark. Code Ann. § 11–4–201, et. seq., seeking a declaratory judgment and damages for Bost's alleged failure to pay Plaintiffs overtime compensation for the time in excess of forty hours per week during which Plaintiffs cared for Bost clients in Plaintiffs' homes.

Bost's motion for summary judgment contends that no overtime compensation was owed because Plaintiffs were exempt employees under the companionship services exemption to the FLSA and a similar exemption under the AMWA. In their cross-motion, Plaintiffs seek partial summary judgment on the issue of whether the companionship services exemption applies.

II. Legal Standard

In determining whether summary judgment is appropriate, the burden is on the moving party to establish both the absence of a genuine dispute of material fact and that it is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56 ; Nat'l Bank of Commerce of El Dorado, Ark. v. Dow Chem. Co. , 165 F.3d 602 (8th Cir. 1999). The same standard applies where, as here, the parties file cross-motions for summary judgment on an issue. Each motion should be reviewed in its own right, with each side, respectively, "entitled to the benefit of all inferences favorable to them which might reasonably be drawn from the record." Wermager v. Cormorant Twp. Bd. , 716 F.2d 1211, 1214 (8th Cir. 1983) ; see also Canada v. Union Elec. Co. , 135 F.3d 1211, 1212–13 (8th Cir. 1997). In order for there to be a genuine issue of material fact, the evidence must be "such that a reasonable jury could return a verdict for the nonmoving party." Allison v. Flexway Trucking, Inc. , 28 F.3d 64, 66 (8th Cir. 1994) (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). Once the movant has met its burden, the nonmovant must present specific facts showing a genuine issue of material fact for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). To show a genuine issue of material fact, the nonmovant must produce evidence "such that a reasonable jury could return a verdict for the [nonmovant]." Allison , 28 F.3d at 66–67 (quoting Anderson , 477 U.S. at 248, 106 S.Ct. 2505 ).

III. Discussion

A. The Companionship Services Exemption

The FLSA requires payment of overtime compensation of at least time and a half for time worked over forty hours per week. 29 U.S.C. § 207. However, the FLSA contains a companionship services exemption from overtime pay for "any employee employed in domestic service employment to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves (as such terms are defined and delimited by regulations of the Secretary [of Labor] )." 29 U.S.C. § 213(a)(15). Plaintiffs have been employed by Bost for various periods spanning from at least 2000 to the present. The regulations defining "companionship services" were substantially amended in 2015. The parties' cross-motions consider only the regulations that were in place before 2015.

"Domestic service employment" is defined as "services of a household nature performed by an employee in or about a private home (permanent or temporary)." 29 C.F.R. § 552.3 (2015).¹ In Fezard v. United Cerebral Palsy of Central Arkansas, 809 F.3d 1006, 1010 (8th Cir. 2016), the Eighth Circuit held that where an employee provided care to clients in the employee's residence, and the nonprofit services-provider employer did not own or exert control over the home, it qualified as a "private home" such that the employees were engaged in domestic service employment. Based on this ruling, "for summary judgment purposes Plaintiffs do not dispute that they worked in their clients' private homes as ‘domestic service’ employees." (Doc. 97, pp. 3–4).

The decisive issue in the present motions is whether the "companionship services" prong of the exemption applies. The pre–2015 regulations defined "companionship services" in relevant part as:

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 hours worked.

29 C.F.R. § 552.6 (1975). Bost argues that under this definition of "companionship services," Plaintiffs were exempt employees because they provided attention and care to disabled clients. Plaintiffs agree that they provided attention and care to the clients, but argue that Bost cannot show that Plaintiffs performed only incidental general household work, so the exemption does not apply.

Exemptions to the FLSA are "narrowly construed in order to further Congress' goal of providing broad federal employment protection." Spinden v. GS Roofing Prods. Co., 94 F.3d 421, 426 (8th Cir. 1996) (quotation and citation omitted). Bost bears the burden of "prov[ing] that this exemption applies by demonstrating that [its] employees fit plainly and unmistakably within the exemption's terms and spirit." Id. Plaintiffs contend that this burden requires Bost to show that Plaintiffs did not spend more than 20–percent of their total weekly hours engaged in general household work, without Plaintiffs producing any evidence to the contrary.

Not until the Eighth Circuit handed down its decision in Fezard and Bost filed its motion for summary judgment did Plaintiffs bring up any general household work done while employed. The amended complaint simply provides that "Plaintiff brings this action under the Fair Labor Standards Act ... as a result of Defendant's failure to pay Plaintiff overtime compensation for the hours in excess of forty hours in a single week that they were/are made to work in their homes." (Doc. 90, ¶ 4). It goes on to state that "Plaintiff's primary duties as a direct care worker were to provide attention and care to disabled persons in Plaintiff's own home." (Id. , ¶ 31). It appears to the Court that until the Eight Circuit reached its decision in Fezard , 809 F.3d at 1010, Plaintiffs' claims for relief depended on the "domestic service employment" issue in the companionship services exemption. The Eighth Circuit ultimately decided against the position Plaintiffs pressed. Plaintiffs have now changed course and, for the first time, argue that they did general household work and that Bost cannot meet its burden to prove that the companionship services exemption applies. Plaintiffs raise this issue without making any direct claim that they actually spent more than 20–percent of their total weekly hours performing general household work.

1. Plaintiffs' Motion for Partial Summary Judgment

Reviewing each motion in its own right, the Court will first address Plaintiffs' motion for partial summary judgment. (Doc. 100). In support of their motion, Plaintiffs state that where the ultimate burden of proof resides with the nonmoving party, the moving party's initial burden of production "may be discharged by ‘showing’—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett , 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Yet, as Justice White pointed out in his concurrence in Celotex, which provided the decisive fifth vote in the case, these guidelines should not be taken out of context. "It is not enough to move for summary judgment without supporting the motion in any way or with a conclusory assertion that the [nonmovant] has no evidence to prove his case." Celotex, 477 U.S. at 328, 106 S.Ct. 2548 (White, J., concurring). "[E]ven when the non-movant bears the burden of proof at trial, simply filing a summary judgment motion does not immediately compel the party opposing the motion to come forward with evidence demonstrating material issues of fact as to every element of its case." Handeen v. Lemaire , 112 F.3d 1339, 1346 (8th Cir. 1997) (quoting Ashe v. Corley, 992 F.2d 540, 543 (5th Cir. 1993) ). "Any contrary rule would be fundamentally unfair and would permit a [movant],...