Lott v. Rigby, Civ. No. 2:89-CV-0088-WCO.

• Decision Date: 20 September 1990
• Docket Number: Civ. No. 2:89-CV-0088-WCO.
• Citation: 746 F. Supp. 1084
• Parties: Mary LOTT and Sue Hickman v. Clifford RIGBY and The State of Georgia Department of Human Resources.
• Court: U.S. District Court — Northern District of Georgia

746 F. Supp. 1084

Mary LOTT and Sue Hickman v. Clifford RIGBY and The State of Georgia Department of Human Resources.

Civ. No. 2:89-CV-0088-WCO.

United States District Court, N.D. Georgia, Gainesville Division.

September 20, 1990.

Timothy J. Sweeney, Harman Owen Saunders & Sweeney, Atlanta, Ga., for defendants.

Janet Elizabeth Hill, Nelson & Hill, Athens, Ga., for plaintiffs.

ORDER

O'KELLEY, Chief Judge.

This case is presently before the court on the plaintiffs' motion for summary judgment. Summary judgment is only proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to a judgment as a matter of law." Fed.R. Civ.P. 56(c). Because the procedure deprives the parties of a trial on the issues, the court must be careful to ensure that only those claims for which there is no need for a factual determination as to any material fact are disposed of by summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

In addition, a court evaluating a summary judgment motion must view the evidence in the light most favorable to the non-movant. Samples v. City of Atlanta, 846 F.2d 1328, 1330 (11th Cir.1988); Tippens v. Celotex Corp., 805 F.2d 949, 953 (11th Cir. 1986), rehearing denied, 815 F.2d 66 (1987). To survive a motion for summary judgment, the non-moving party need only present evidence from which a jury might return a verdict in his favor. Samples, 846 F.2d at 1330.

FACTUAL BACKGROUND

The plaintiffs in this case, Mary Lott and Sue Hickman, filed suit against the defendants, Clifford Rigby and the Hall County Board of Health, to recover unpaid overtime compensation to which they claim entitlement.

The plaintiffs were employed as houseparents at the Stephens County Independent Group Residence for the Mentally Retarded. Ms. Lott was employed from June, 1985 until November, 1989, and Ms. Hickman was employed from September, 1988 until May, 1990.

The Stephens County Independent Group Residence hereinafter referred to as the "Group Residence" is a unit of the North Georgia Mental Health/Mental Retardation/Substance Abuse Center. As program director, Mr. Rigby provides the top management function for the program. The Group Residence is a public institution funded with state money.

Ms. Lott worked as a part-time houseparent for the Group Residence from June 17, 1985 until August 1, 1986 at which time she was promoted to full-time houseparent. Ms. Hickman worked as a full-time houseparent at all times during her employment with the Group Residence.

As a part-time houseparent, Ms. Lott was on duty 20 hours a week (this schedule often required her to sleep on the premises). As a full-time houseparent, from August 1, 1986 through February 7, 1988, Ms. Lott was on duty 16 hours in a 24-hour period, five consecutive days per week. Of these hours, 8 hours were worked during the day and the remaining 8 hours per day were spent sleeping on the premises of the Group Residence. Her typical schedule was working 4:00 p.m. until 8:00 a.m. Monday through Friday (she was allowed to sleep from 10:00 p.m. until 6:30 a.m.). From 8:00 a.m. until 4:00 p.m., Ms. Lott was relieved of all responsibilities and was not expected to work. She was compensated for 8 hours of work during each of these 24 hour periods. Sleep time was deducted from her compensation. At no time was Ms. Lott required to be on duty 24 hours a day.

From September 21, 1988 until April, 1989, Ms. Hickman worked from 4:00 p.m. until 8:00 a.m. (she was allowed to sleep from 10:00 p.m. until 6:30 a.m.), five consecutive days per week. She was not compensated for sleep time. At no time was Ms. Hickman required to be on duty 24 hours a day.

At approximately the end of April, 1989, the defendant discontinued its sleep time policy with the plaintiffs and hired a sleep time staff to stay at the Group Residence during sleep hours. This sleep time staff is compensated for every hour that they spend on the premises. The plaintiffs were not compensated for any of the hours that they slept on the premises of the Group Residence, except that in February, 1989, the plaintiffs were compensated for sleep time at the rate of 1½ times their hourly rates.

The defendant's sleep time policies were formulated based on Department of Human Resource policies and procedure, and Department of Labor guidelines. In March, 1990, the Department of Labor conducted an audit of the Mental Retardation group homes and investigated the method of compensation of houseparents. The defendant Hall County was forced to compensate certain houseparents for sleep time, including Shelia Mance, a houseparent at the Group Residence.

ANALYSIS

The FLSA and the "Companionship Services" exemption

The central issue in this case is whether the plaintiffs were exempt from the Fair Labor Standards Act FLSA under the "companionship services" exemption, 29 U.S.C. § 213(a)(15). The FLSA excludes from 29 U.S.C. § 207, its minimum wage/hours coverage,¹ the following employees:

any employee employed on a casual basis in domestic service employment to provide companionship 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 delineated by regulations of the Secretary). 29 U.S.C. § 213(a)(15) (1988).

"Companionship Services" is defined as: ... those services which provide fellowship, care and protection for a 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 (1989).

The duties of a houseparent can be divided into four categories: (1) General Responsibilities (i.e., fostering a "home-like" atmosphere and performing related activities), (2) Client Supervision/Client-Related Household Work, (3) Program Responsibilities, and (4) General Household Work. The plaintiffs provided "companionship services" as defined by 29 C.F.R. § 552.6. The major purpose of a houseparent is being there; no special training or education is required.

The "companionship services" exemption to FLSA applies only to "domestic service employment." Therefore, in order for the exemption to apply to the plaintiffs, they must qualify as "domestic service employees." Federal regulation 29 C.F.R. § 552.3 provides:

As used in section 13(a)(15) of the Act, 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. The term includes employees such as cooks, waiters, butlers, valets, maids, housekeepers, governesses, nurses, janitors, laundresses, caretakers, handymen, gardeners, footmen, grooms, and chauffeurs of automobiles for family use. It also includes babysitters employed on other than a casual basis. This listing is illustrative and not exhaustive. emphasis added 29 C.F.R. § 552.3 (1989).

The regulation is unambiguous and clearly indicates that being employed in a private home is an integral part of the definition of a "domestic service employee."²

A 1975 administrative opinion, WH-328 written by Acting Wage/Hour Administrator Warren D. Landis, is directly on point with this case.³ It was issued in response to a letter requesting advice on whether or not the "companionship services" exemption would apply to houseparents employed by the county to provide care for mentally retarded persons in residential county homes. The opinion states in part:

With regard to its legislative history, the Congress intended that domestic service be considered as relating to services of a household nature performed by an employee in or about the private home of the person by whom he or she is employed. Services performed outside of a private home would not be within the term "domestic service." Accordingly, the exemption would not apply to employees providing care to institutionalized persons ... even though they are in a residential home setting. Wage and Hour Opinion WH-368, 91 W.H.M. 1031 (Nov. 25, 1975).

The opinion indicates that Congress created the "companionship services" exemption to enable guardians of the elderly and disabled to financially afford to have their wards cared for in their own private homes as opposed to institutionalizing them. The opinion further suggests that a residential home, such as the "Group Residence" in the present case, is not a private home for purposes of applying the exemption.

As the plaintiffs correctly point out, the legislative history of the "companionship services" exemption is consistent with Administrator Landis' interpretation in opinion WH-368 that "domestic services employment" was intended to only include employees performing domestic services in a private home.⁴ The legislative history shows:

The term "domestic service" employees is not defined in the Act FLSA. However, the generally accepted meaning of domestic service relates to services of a household nature performed by an employee in or about a private home of the person by whom he or she is employed. The domestic service must be performed in a private home which is a fixed abode of the individual or family. emphasis added H.R.Rep. No. 913, 93rd Cong., 2nd Sess., reprinted in, 1974 U.S. Code Cong. & Admin.News 2811, 2845.

The defendant contends that the Stephens County Independent Group Residence is the private home of its clients because it is their sole residence. However, the plaintiffs logically argue that if the defendant is correct, every publicly funded institution would be a "private home" because it often...