Linn v. Developmental Services of Tulsa, Inc., 94-C-460-K.

• Decision Date: 11 May 1995
• Docket Number: No. 94-C-460-K.,94-C-460-K.
• Parties: John R. LINN, Plaintiff, v. DEVELOPMENTAL SERVICES OF TULSA, INC., an Oklahoma Corp., Defendant.
• Court: U.S. District Court — Northern District of Oklahoma

891 F. Supp. 574

John R. LINN, Plaintiff, v. DEVELOPMENTAL SERVICES OF TULSA, INC., an Oklahoma Corp., Defendant.

No. 94-C-460-K.

United States District Court, N.D. Oklahoma.

May 11, 1995.

COPYRIGHT MATERIAL OMITTED

Steven R. Hickman, Frasier & Frasier, Tulsa, OK, for plaintiff.

Steven A. Heath, William C. Chevaillier, Mysock & Chevaillier, Tulsa, OK, for defendant.

ORDER

KERN, District Judge.

Now before the Court is the Motion of Defendant, Developmental Services of Tulsa, Inc. ("Defendant"), for summary judgment against the allegation by Plaintiff John Linn ("Plaintiff") that Defendant failed to pay overtime compensation as required by the Fair Labor Standards Act of 1938, as amended (hereinafter "FLSA"), 29 U.S.C. § 201 et seq.

I. Facts

Plaintiff was employed as a Habilitation Training Specialist and paid compensation at straight-time pay while working as an employee for Defendant from November 1991 through March 1994. Plaintiff provided fellowship and protection for individuals of advanced age and physical and mental infirmities who could not care for their own needs. Plaintiff provided personal care services for such individuals, assisting clients with their personal services such as feeding, bathroom needs, making beds, washing clothes, bathing, brushing of teeth, and preparing meals.

Plaintiff was not a registered nurse nor a licensed practical nurse. However, Plaintiff performed services that required certification, after limited training, from the state of Oklahoma.

II. Discussion

Defendant submits that it is entitled to summary judgment on the grounds that Plaintiff was not engaged in commerce as defined by the FLSA; because Plaintiff's employment as a companion is exempt from overtime pay under the FLSA; and that a two-year statute of limitations is applicable, since Defendant did not act willfully in failing to pay overtime to Plaintiff.

Summary judgment pursuant to Fed.R.Civ.P. 56 is appropriate where "there is no genuine issue as to any material fact" and "the moving party is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265, 274 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Windon Third Oil and Gas v. Federal Deposit Insurance Corporation, 805 F.2d 342, 345 (10th Cir.1986), cert. den. 480 U.S. 947, 107 S.Ct. 1605, 94 L.Ed.2d 791 (1987). In Celotex, 477 U.S. at 322, 106 S.Ct. at 2552, it is stated:

"The plain language of Rule 56(c) mandates the entry of summary judgment, 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."

A party opposing a properly supported motion for summary judgment may not rest upon mere allegations or denials of his pleadings, but must affirmatively prove specific facts showing there is a genuine issue of material fact for trial. In Anderson v. Liberty Lobby, Inc., the Court stated:

The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.

477 U.S. at 252, 106 S.Ct. at 2512. The Tenth Circuit requires "more than pure speculation to defeat a motion for summary judgment" under the standards set by Celotex and Anderson. Setliff v. Memorial Hospital of Sheridan County, 850 F.2d 1384, 1393 (10th Cir.1988).

A. Engaged in Commerce

The Defendant argues first that it is not engaged in commerce as defined by the FLSA and thus is not covered under the statute. In making this argument, Defendant concentrates on the activities of the employees and points to their lack of connection with interstate commerce.

The FLSA regulates compensation for employees who work over forty hours per week if such employees are employed by an enterprise engaged in commerce. The statute provides:

no employer shall employ any of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for a workweek longer than forty hours, unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.

29 U.S.C. § 207(a) (emphasis added). An enterprise engaged in commerce is defined as an enterprise that "has employees engaged in commerce" and whose annual gross volume of business done is not less than $500,000. 29 U.S.C. § 203(s)(1). Finally, commerce is defined as including "transmission.... or communication among the several States or between any State and any place outside thereof." 29 U.S.C. § 203(b).

In this instance, the Defendant qualifies as an enterprise engaged in commerce. According to deposition testimony from Dan Fazzini, President of Developmental Services of Tulsa, Defendant has had a gross business on an annual basis of over $500,000 for the last five years. Pl.'s Resp. to Mot. for Summ.J., Dep. of Dan Fazzini, at p. 6. Moreover, the Defendant has set up an office in Utah as part of the same corporate entity that provides similar services. Id. Various employees of Defendant, including Dan Fazzini, communicate between offices and from one state to the other. Id. For these reasons, the Court finds that Defendant is engaged in commerce for the purposes of the FLSA.

B. Companionship Exemption

Defendant argues that its employees provide "companionship services," thus fitting under the companionship exemption to the FLSA carved out under 29 U.S.C. § 213(a)(15). Congress created the companionship services exemption to enable guardians of the elderly and disabled to afford to have their wards cared for in their own private homes as opposed to institutionalizing them. Lott v. Rigby, 746 F.Supp. 1084, 1087 (N.D.Ga.1990). Under the relevant provision, an exemption from overtime compensation is granted to:

"any employee employed on a casual basis in domestic service employment to provide babysitting services or 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 the regulations of the Secretary).

29 U.S.C. § 213(a)(15) (emphasis added).

An employer who asserts he is exempt from the Act maintains the burden of establishing "affirmatively and clearly" that the exemption applies. Lamon v. City of Shawnee, 972 F.2d 1145, 1153 (10th Cir. 1992), cert. den., ___ U.S. ___, 113 S.Ct. 1414, 122 L.Ed.2d 785 (1993). Moreover, exceptions to the FLSA must be narrowly construed. A.H. Phillips, Inc. v. Walling, 324 U.S. 490, 493, 65 S.Ct. 807, 808, 89 L.Ed. 1095 (1945). As the Tenth Circuit has stated:

An employer who asserts he is exempt from the Act has the burden of "establishing the exemption affirmatively and clearly." Exemptions must be narrowly construed and are limited to those establishments plainly and unmistakenly within the terms and the spirit of the exemption invoked.

Schoenhals v. Cockrum, 647 F.2d 1080, 1081 (10th Cir.1981) (emphasis added).

In this case, the Court must determine whether the services provided by the Defendant are encompassed in the exemption as it relates to companionship services. The regulations from the Secretary provide the most guidance to the Court in determining the scope of the companionship exemption, further defining the terms, "companionship" and "domestic service employment" as used in 29 U.S.C. § 213(a)(15).

According to the regulations, companionship is defined in the following manner.

The term companionship services shall mean those services which provide fellowship, care, and protection for a person, who, because of advanced age or mental infirmity, cannot care for his or her own needs. Such services may include household work related to the care of the ... infirm person such as meal preparation, bed making, washing of clothes, and other similar services.

29 C.F.R. § 552.6. Under the facts agreed to by the parties, it is clear that the Plaintiff was employed to provide fellowship and protection for individuals of advanced age and physical and mental infirmities. Therefore, this requirement of the exemption has been satisfied.

The regulations also contain two exceptions for the companionship services exemption: (1) general household services exceeding twenty percent of the total weekly hours worked; and (2) services performed by trained personnel, "such as a registered nurse or practical nurse." 29 C.F.R. 552.6; Toth v. Green River Regional Mental Health/Mental Retardation Board, Inc., 753 F.Supp. 216, 217 (W.D.Ky.1989), aff'd, 985 F.2d 560 (6th Cir.1993). When these exceptions apply, the exemption for companionship services cannot be used, and the general FLSA overtime rules govern. However, Plaintiff raises neither of these exceptions to the general exemption, and it would be inappropriate to consider them here.¹

Plaintiff concentrates on the term "domestic service employment" to rebut Defendant's claim of exemption. Specifically, Plaintiff claims that he was not employed in the private homes of those for whom he worked. In defining "domestic service employment," 29 C.F.R. § 552.3 states in pertinent part:

The term "domestic service employment" refers to services of a household nature performed by an employee in or about a private home (permanent or temporary) of the person by whom he or she is employed.

Plaintiff seeks to avoid the exemption by claiming that he did not work at a private home but rather at Defendant's place of business.

According to the legislative history, a private home is understood to be a fixed abode of the individual or family that is maintained by the individual or family...